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Johnson v. District of Columbia

November 21, 2007; as amended December 5, 2007


Appeal from the Superior Court of the District of Columbia (CA 1919-02) (Hon. Stephanie Duncan-Peters, Trial Judge).

The opinion of the court was delivered by: Long, Associate Judge

Submitted December 9, 2005

Before REID and KRAMER, Associate Judges, and LONG,*fn1 Senior Judge, Superior Court of the District of Columbia.

Appellants Michelle Johnson and Phillip M. Thompson are two police officers who unsuccessfully sued the District of Columbia for money damages, in connection with an internal investigation and temporary revocations of their police powers. They appeal from the grant of summary judgment in favor of the District of Columbia and three individual police officials, William Dandridge, Robert Moss, and Denise Calhoun. Although the complaint embraced myriad causes of action, the central feature of the lawsuit was a claim for relief pursuant to the District of Columbia Whistleblower Protection Act, D.C. Code § 1-615.51 et seq. (2001) (hereinafter the "WPA"), as well as a claim based upon the First Amendment.*fn2 The key question before us is whether the trial court erred in concluding that appellants failed to respond to the motion for summary judgment with a proffer of admissible evidence legally sufficient to entitle them to a trial.

The body of case law concerning the District's WPA is not extensive. Since the general jurisprudence of summary judgment often involves reversals, this appeal presents an opportunity to highlight why the law regarding summary judgment on WPA and First Amendment claims was correctly applied. Based upon the following analysis of the record and the applicable law, we conclude that appellees' entitlement to summary judgment is not a close question. We affirm, holding that the McDonnell Douglas burden-shifting standard was appropriately applied in favor of the appellees in the summary judgment analysis of both claims.

Background of the Case

Appellants included in their complaints claims for damages based upon intentional infliction of emotional harm and defamation. Appellant Johnson also made a claim of gender discrimination, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e-2 ("Title VII"). Nonetheless, we need not tarry on the historical details of all of the original claims, since the only claims subject to this appeal are those pertaining to the Whistleblower Protection Act and the First Amendment.

As a practical matter, the appellants do not dispute the fact that the Whistleblower Protection Act claim is so intertwined with the First Amendment claim that the disposition of one compels the same disposition of the other. Thus, for the sake of simplicity, we focus most of our discussion on the WPA claim.

Michelle Johnson and Phillip M. Thompson at all times relevant were employed as officers of the Metropolitan Police Department (hereinafter "MPD."). In 2001, they became the subject of an internal investigation within MPD. Their police powers were temporarily revoked by MPD on April 11, 2001. At the time of their suspension, appellants had been assigned to patrol the immediate area of Anacostia High School in the District of Columbia.

Essentially, appellants accused the District of Columbia and certain police officials of investigating and re-assigning them in retaliation for their expressions of opinion regarding the lack of a patrol car for their detail at Anacostia High School. They alleged that they were singled out for adverse employment action and various degrees of harassment, all because they repeatedly lobbied their supervisors for access to a patrol vehicle.

We summarize the essential chain of events. Appellants met on November 27, 2000 with Appellee WilliamDandridge, who was then the Commander of the Sixth District of the Metropolitan Police Department. They discussed the request for a patrol car, and they asserted that a patrol car would enhance their ability to enforce traffic laws and to ride through alleys so as to ward off armed robberies of students. They met on the subject once again with Dandridge on December 5, 2000, reiterating the safety concerns of the school's principal in the wake of several violent incidents. The issue of whether a patrol car would be added to the high school detail surfaced again, when Mildred Musgrove (principal of Anacostia High School) independently wrote to Dandridge on April 7, 2001. She wrote specifically about the advantages of a patrol car "as a deterrent to crimes against [her] students." In this lawsuit, the appellants cited the letter of Ms. Musgrove as an indication that their own views were worthwhile and supported by others as a community concern about effective law enforcement.

The record reflects that the official investigation and suspension of appellants arose, in a literal sense, from an intervening event that was completely unrelated to the scout car issue, i.e., a complaint from a parent about alleged "excessive force" allegedly used by the appellants against a student. The Metropolitan Police Department temporarily revoked the police powers of the appellants and initiated a formal investigation of the excessive force complaint on April 11, 2001. On that very same date, the matter was formally referred to the Office of the United States Attorney for consideration of criminal charges against Officers Johnson and Thompson.

The excessive force complaint was based upon the following incident. It is uncontested that while detailed to Anacostia High School on December 6, 2000, Johnson and Thompson stopped a young female student who was attempting to exit the school and escorted her to the school's security office. A fight broke out in the security office between the appellants and the student. Johnson has never denied that she struck the student, although she asserted in her complaint that it was done in self-defense. The child's mother filed a complaint against both Johnson and Thompson with the MPD Office of Internal Affairs. The net result of the departmental investigation was that the appellants were exonerated. The Commander of the Sixth District issued a report to this effect on February 8, 2002. Johnson and Thompson were restored to full active duty in early March of 2002. Within days, they filed suit.

Adjudication of the Motion for Summary Judgment

Appellees filed a motion for summary judgment as to all causes of action. Judge Duncan-Peters filed a comprehensive opinion (hereinafter "Order"), articulating specific grounds on which summary judgment should be granted in favor of appellees as to all claims.

Judge Duncan-Peters, as a discretionary matter, rendered her decision assuming arguendo that the appellants could establish that their expressions of opinion about having access to a patrol vehicle were "protected disclosures" as defined by the WPA. Judge Duncan-Peters gave appellants the benefit of the doubt on the question of whether the verbal lobbying of the appellants constituted "protected disclosures." Even though we review summary judgment decisions de novo, we do not quibble ...

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