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Tabb v. Dist. of Columbia

March 19, 2009

SHIRLEY TABB, PLAINTIFF,
v.
DISTRICT OF COLUMBIA AND BRENDA DONALD WALKER, DEFENDANTS.



The opinion of the court was delivered by: Paul L. Friedman United States District Judge

OPINION

This matter is before the Court on the parties' cross motions for summary judgment. After careful consideration of the parties' papers, attached exhibits, and the entire record in the case, the Court will deny plaintiff's motion for summary judgment and will grant defendants' motion for summary judgment in part and deny it in part.*fn1

I. BACKGROUND

Plaintiff Shirley Tabb worked for the District of Columbia for almost 14 years, most recently as a Public Information Specialist for the District of Columbia Child and Family Services Agency ("CFSA"). See Pl. Mot., Plaintiff's Statement of Material Facts ("Pl. Facts") ¶ 1; Def. Mot., Defendants' Statement of Material Facts Not in Genuine Dispute ("Def. Facts") ¶ 1. In March 2005, plaintiff contacted a public information officer with the Department of Human Services about developing a campaign to increase awareness around child abuse and neglect, reviving the Back to Sleep campaign and other CFSA projects. See Def. Facts ¶ 6; Pl. Opp., Plaintiff's Response to Material Facts Asserted by Defendants ("Pl. Resp.") ¶ 6. In July 2005, plaintiff spoke to Brenda Donald Walker, the CFSA Director, about her concerns that children were sleeping at the CFSA office building rather than in emergency homes. See Pl. Facts ¶ 4; Def. Facts ¶ 7.

On August 15, 2005, plaintiff contacted Susan Newman, Senior Advisor for Religious Affairs for the Executive Office of the Mayor, to discuss the lack of foster home resources for CFSA and possible solutions. See Def. Facts ¶ 9; Pl. Resp. ¶ 9. Plaintiff subsequently contacted Deputy Mayor Neil Albert, who was responsible for CFSA performance, about the problem of children sleeping in the CFSA office building. See Def. Facts ¶ 10; Pl. Resp. ¶ 10. Finally, on September 19, 2005, plaintiff contacted various media outlets to report the problem that children were sleeping in the CFSA office building. See Def. Facts ¶ 11; Pl. Resp. ¶ 11; Pl. Facts ¶ 19; Def. Opp., Defendants' Response to Plaintiff's Statement of Material Facts Not in Genuine Dispute ("Def Resp.") ¶ 19. Stories about the issue ran that day or the following day. See Pl. Facts ¶ 18; Def. Resp. ¶ 18. Plaintiff also gave a photograph of a child sleeping at CFSA to media outlets. See Pl. Facts ¶ 20; Def. Resp. ¶ 20.

Plaintiff took family medical leave from sometime in March 2005 to on or about May 9, 2005. See Def. Facts ¶15; Pl. Resp. ¶ 15.*fn2 Plaintiff again took leave from August 18, 2005 through September 2005 because of her diabetes and related health issues. See Pl. Facts ¶ 14; Def. Resp. ¶ 14. Plaintiff was still on approved leave at the time she contacted the media about children sleeping in the CFSA office building. See Pl. Facts ¶ 24; Def. Resp. ¶ 24.

On October 3, 2005, Brenda Walker issued a Notice of Summary Removal to the plaintiff, informing her that she was summarily removed from her position. See Def. Facts ¶ 12; Pl. Mot., Ex. 2 ("Notice"). The Notice informed plaintiff that the basis for her removal was use of the CFSA email system for an unauthorized campaign to raise awareness about child abuse outside the agency; failure to perform job duties in a competent and timely manner; misrepresentation of agency practice to the media and violation of confidentiality laws; and violation of Family Medical Leave Policy. See Notice at 1-2. Plaintiff was notified of her right to provide a written response to the Notice, to be represented by an attorney, and to attend an adversary hearing, after which there would be a notice of final decision. See Notice at 2. Plaintiff submitted a Response to the Notice of Summary Reversal on October 10, 2005 and requested a hearing. See Def. Mot., Ex. C at 1, 5. The parties scheduled a hearing for October 27, 2005, but plaintiff did not attend. See Def. Facts ¶ 14; Pl. Resp. ¶ 14.

On April 28, 2006, plaintiff filed a complaint in this Court asserting violations of her First Amendment rights, her Fifth Amendment due process rights, the D.C. Whistleblower Protection Act ("DC-WPA"), the District of Columbia and federal Family and Medical Leave Acts, and 42 U.S.C. § 1985 for conspiracy. The Court dismissed the conspiracy claim, as well as the DC-WPA claim against plaintiff's supervisors. See Tabb v. District of Columbia, 477 F. Supp. 2d 185 (D.D.C. 2007). Defendants now move for summary judgment on all remaining claims. Plaintiff moves for summary judgment on her First Amendment and DC-WPA claims.

II. DISCUSSION

A. Standard of Review

Summary judgment may be granted only if "the pleadings, the discovery and disclosure materials on file, and any affidavits [or declarations] show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). "A fact is 'material' if a dispute over it might affect the outcome of a suit under the governing law; factual disputes that are 'irrelevant or unnecessary' do not affect the summary judgment determination." Holcomb v. Powell, 433 F.3d at 895 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 248).

An issue is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 248; Holcomb v. Powell, 433 F.3d at 895. When a motion for summary judgment is under consideration, "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [the non-movant's] favor." Anderson v. Liberty Lobby, Inc., 477 U.S. at 255. See also Mastro v. Potomac Electric Power Co., 447 F.3d 843, 849-50 (D.C. Cir. 2006); Aka v. Washington Hospital Center, 156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc); Washington Post Co. v. Dep't of Health and Human Services, 865 F.2d 320, 325 (D.C. Cir. 1989). On a motion for summary judgment, the Court must "eschew making credibility determinations or weighing the evidence." Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007).

The non-moving party's opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits, declarations or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. See FED. R. CIV. P. 56(e)(2); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The non-moving party is "required to provide evidence that would permit a reasonable jury to find" in her favor. Laningham v. U.S. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the evidence is "merely colorable" or "not significantly probative," summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50; see Scott v. Harris, 550 U.S. 372, 380 (2007) ("[W]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, 'there is no genuine issue for trial.'") (quoting Matsushita Electric Indus. Co. v. ...


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