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Hoey v. District of Columbia

March 31, 2008

ROBIN HOEY, PLAINTIFF,
v.
THE DISTRICT OF COLUMBIA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

Plaintiff Robin Hoey, a high-ranking member of the Metropolitan Police Department ("MPD"), brings this action seeking injunctive and monetary relief against the District of Columbia and Cathy M. Lanier, the Chief of Police of the MPD. Specifically, Hoey seeks a declaration that he was unlawfully demoted from the rank of Commander to the rank of Captain on April 19, 2007 in violation of 42 U.S.C. § 1983 and he asks to be reinstated to his former title and post. In addition, Hoey alleges that he was defamed by certain statements made by Lanier and other officials in the aftermath of his demotion and that defendants' allegedly outrageous conduct towards him in connection with the demotion constitutes intentional infliction of emotional distress. As further relief, Hoey seeks both compensatory and punitive damages. Defendants have moved to dismiss the complaint and Hoey has cross-moved for partial summary judgment. Those motions are now fully briefed and ripe for resolution. Upon careful consideration, and for the reasons set forth below, the Court will grant defendants' motion and deny Hoey's motion.

BACKGROUND

Because this case involves the District's extensive personnel organization, the Court will first briefly outline the relevant provisions of that system. The District's Comprehensive Merit Personnel Act ("CMPA"), D.C. Code §§ 1-608.01 et seq., "establishes a merit personnel system that, among other things, provides for employee 'performance ratings,' including 'corrective actions' when necessary; [and] . . . employee discipline through 'adverse action' proceedings." District of Columbia v. Thompson, 593 A.2d 621, 625 (D.C. 1991) (citing various provisions of the CMPA). By its terms, the CMPA creates a Career Service "for employees in which they are guaranteed to be promoted based on merit and cannot be terminated without cause." Fonville v. District of Columbia, 448 F. Supp. 2d 21, 26 (D.D.C. 2006) (citing D.C. Code §§ 1-608 & § 1-616.51). The CMPA also provides that employees of the Career Service "can only be disciplined for cause and prior notice must be given." Id. Demotion and pay grade reductions are included within the ambit of "discipline." See D.C. Code § 1-616.52(b). Aggrieved parties may appeal an adverse disciplinary action to the Office of Employee Appeals ("OEA"). Id. The CMPA also authorizes review of an OEA final decision in the Superior Court of the District of Columbia. Id. § 1-606.01(d).

Turning to the undisputed facts of this case, Hoey first joined the MPD on December 16, 1985. Defs.' Suppl. Br. Ex. 1 (hereinafter "OEA Decision") at 2 ¶ 1.*fn1 He was initially hired as a Career Service police officer and he gradually ascended to the rank of Lieutenant over the course of several years. Id. ¶¶ 1-2. In the beginning of 2000, Hoey was promoted to Captain. Id. ¶ 1.

The MPD personnel forms memorializing that promotion indicated his Career Service status. Id. ¶ 2. Then again on April 22, 2001, he was promoted to the rank of Inspector, with the accompanying personnel action form once again indicating that he was a Career Service employee. Id. ¶ 3. Finally, on August 1, 2004, Hoey was promoted to Commander. Id. ¶ 4. As before, the personnel documentation recording that change in rank indicated that Hoey received a "promotion" and that he was a Career Service employee. Id.

Following his election, Mayor Adrian Fenty appointed defendant Cathy Lanier as Chief of Police and she was confirmed in that role on April 3, 2007. Id. ¶ 5. Thereafter, on April 19, 2007, Chief Lanier summoned Hoey to her office. Am. Compl. ¶ 7. Once he arrived, she informed him that she was transferring him from command of the Sixth District to the D.C. Central Cellblock. Id. Lanier then demoted Hoey to the rank of Captain. Id. At the time, Lanier provided no explanation for her action. Id. Instead, she merely informed Hoey that he was an at-will employee subject to demotion or termination at any time. Id. As OEA later recognized, MPD has never asserted that Hoey was demoted for cause. See OEA Decision at 2 ¶ 8.

News of Hoey's demotion spread quickly through "the public press . . . [and] various community meetings with citizens of the District of Columbia, including citizens of the Sixth District where [Hoey] is held in high esteem." Am. Compl. ¶ 8. Believing that he had been the subject of employment-related discipline without the protections afforded to him by the CPMA, Hoey appealed his demotion to OEA on May 16, 2007. On the same day, he filed his initial judicial complaint. In that complaint, he alleged broadly that he was a member of the Career Service who could not be demoted without cause. Lanier's action, then, allegedly had unlawfully deprived Hoey of a property interest without adequate due process. In addition, because of what he viewed as the patent unlawfulness of defendants' conduct regarding his demotion, Hoey added a claim for intentional or negligent infliction of emotional distress.

Shortly after the initial complaint was filed, Hoey alleges that Lanier "took steps to defame [him] in an effort to deflect criticism of her decision to demote him." Id. ¶ 10(a). Thus, Lanier allegedly informed Councilmember Yvette Alexander that Hoey was "under investigation within the Metropolitan Police Department." Id. Moreover, Hoey contends, Lanier "further directed Councilmember Alexander to tell any citizen who inquired about [Hoey] that he was under investigation." Id. Hoey was not aware of any such investigation at the time. In fact, Lanier also allegedly told Ms. Alexander that Hoey "had several sexual harassments [sic] complaints placed against him," an assertion that Hoey further denies. Id. ¶ 10(b). And in response to a citizen's inquiry, Yvonne Smith, the Acting Director of the Office of Community Outreach in the Executive Office of the Chief of Police, allegedly sent an email that "repeatedly implies that [Hoey] had private personnel matters which would justify his demotion." Id. ¶ 10(c). Indeed, in her email Ms. Smith indicated that she knew of "many many many many many many complaints" that had been lodged against Hoey. Id. ¶ 10(d). In response, Hoey amended his complaint on August 20, 2007 to add a "defamation plus" claim against defendants.

In the meantime, an OEA hearing officer conducted a "Prehearing Conference" on August 29, 2007. See OEA Decision at 1. Pursuant to that conference, Hoey submitted a motion for summary judgment and MPD submitted a response. Id. MPD made two primary arguments in its filing. First, it maintained that all Commander positions fall within the so-called Excepted Service, which consists of appointed positions that are exempt from the customary protections of the CMPA. Because members of the Excepted Service are at-will employees, they may be removed from office or demoted without cause at any time. Id. at 5; see also D.C. Code § 1-609.05 ("Employees in the Excepted Service . . . do not have any job tenure or protection."). Thus, Hoey, who held the rank of Commander, must have been an Excepted Service employee, MPD argued, because he held an Excepted Service position. In fact, MPD insisted that Hoey's promotion to Inspector in 2001 was an Excepted Service appointment and that he lost his Career Service status at that time.

OEA, which issued its Initial Decision on December 14, 2007, rejected that contention. Construing the relevant statutory provisions, OEA determined that, contrary to MPD's position, not all Commander positions are filled by Excepted Service employees; instead, some Commanders are promoted from Career Service positions and retain that status. Id. at 6-8. Thus, while MPD was correct that Excepted Service Commanders can be demoted at any time without cause, Career Service Commanders are entitled to the protections outlined in the CMPA. And as for Hoey, OEA stated that "[t]he best evidence regarding [his] status is his official personnel record." Id. That documentation indicated that in every recorded promotion, including his promotion from Inspector to Commander, Hoey was noted as a Career Service employee. Id. Thus, because MPD "ha[d] nothing to show that [Hoey] was ever appointed into an Excepted Service position," OEA concluded that he had remained a Career Service employee throughout his entire tenure with MPD. Id.

Next, MPD argued that even if some Commanders are Career Service employees and Hoey was one such Commander, "the Chief of Police is nevertheless authorized to return District Commanders to the rank of Captain at his or her discretion, without cause." Id. at 8-9. That argument was based on two principal grounds. The first was the District Personnel Manual ("DPM"), which states in relevant part: "Assistant Chiefs of Police, Commanders, and Inspectors are excepted service employees, who serve at the pleasure of the Chief of Police. The Chief of Police has the discretion to return Assistant Chiefs of Police, Commanders, and Inspectors to their previous rank/position." 6 D.C.M.R. § 872.5. OEA was unimpressed with that contention. It construed that regulation to apply only to Excepted Service Commanders. See OEA Decision at 8. And if, in the alternative, the Manual did apply to all Commanders, it was a municipal regulation that conflicted with the enabling statute, and it was therefore invalid in any event. Id.

Finally, MPD attempted to take refuge under D.C. Code § 1-608.01 (d-1), which provides:

For members of the Metropolitan Police Department and notwithstanding § 1-632.03(1)(b) or any other law or regulation, the Assistant and Deputy Chiefs of Police and inspectors shall be selected from among the captains of the force and shall be returned to the rank of captain when the Mayor so determines.*fn2 Although that provision does not explicitly mention Commanders, OEA took note of "MPD General Order 101.9 . . . which was first promulgated in 1979 and continues in effect to the present," and which states that "District Commanders shall be of the rank of Deputy Chief." Id. at 8. Thus, OEA evidently agreed with MPD that "some Commanders may indeed be returned to the rank of Captain at the Police Chief's discretion." Id. Although it is not entirely clear, however, OEA apparently concluded that subsection (d-1) also applied ...


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