The opinion of the court was delivered by: Reggie B. Walton United States District Judge
Harold C. Lindsey, the plaintiff in this civil lawsuit, brings this action against the District of Columbia alleging age discrimination committed in contravention of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-34 (2006), breach of "a duty of care to abide by the rules, regulations, procedures and laws then in effect within the District of Columbia Fire and [Emergency Medical Systems] Department and in the District of Columbia," Plaintiff's Complaint (the "Compl.") ¶ 66, and intentional infliction of emotional distress causing "humiliation, embarrassment, mental anguish and pain and suffering," id. ¶ 70.*fn1 The plaintiff's claims arise out of events resolved earlier by another member of this Court, Lindsey v. District of Columbia, Civil Action No. 02-1592 (RMC) (D.D.C.), which the plaintiff has resurrected based on alleged newly discovered evidence and which the plaintiff seeks to use in the current case. The initial conflict between the parties arose from the plaintiff's removal from his position as a Sergeant in the Fire/Arson Investigation Unit allegedly "based solely upon his age (over 40 [years])," id. ¶ 17, the confiscation of the plaintiff's canine partner, id. ¶ 18, his replacement by Sidney DeSilva, "a younger employee (under 40 [years]) who had no experience or certification," id. ¶ 43, and the subsequent hiring of another sergeant as a canine handler, who also was under forty years of age, id. ¶ 47. As a result of these series of events, the plaintiff seeks compensatory damages, punitive damages, attorney's fees and costs, and declaratory and injunctive relief. Id. ¶ 64.
Currently before the Court is the defendant's motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). Upon considering the plaintiff's complaint, the parties' motions, and all relevant memoranda and exhibits,*fn2 the Court concludes for the following reasons that it must grant in part and deny in part the defendant's motion and dismiss the plaintiff's claims only insofar as they arise from his removal as a sergeant in the defendant's Fire/Arson Investigation Unit.
The following facts are either alleged by the plaintiff in his complaint or are matters of public record. The plaintiff, a resident of the state of Maryland, Compl. ¶ 5, began work as a firefighter in 1979 for the District of Columbia, id. ¶ 10, "a municipal corporation empowered to sue and be sued," id. ¶ 6. In 1989, the plaintiff was promoted to the rank of Inspector, and in 1991 he was promoted to the rank of Fire Inspector. Id. ¶ 10. By 2001, the plaintiff had attained the rank of Sergeant in the Fire/Arson Investigation Unit, id. ¶¶ 10, 12, and completed certification to work "in conjunction with his trained dog[ ] as an Accelerant Detection Canine Team," id. ¶ 13. "Certification as an Accelerant Detection Canine Team required substantial training and work" by the plaintiff. Id. ¶ 14. While serving as a sergeant and canine handler, the plaintiff was over forty years of age. Id.
In February of 2001, the plaintiff "was informed that he could not be a [s]ergeant as well as the Accelerant Canine Detection Handler," id. ¶ 19, and was "removed from his position as a [s]ergeant in the Fire/Arson Investigation Unit," id. ¶ 17. The defendant also confiscated the plaintiff's Accelerant Detection Canine, Taz. Id. ¶ 18. Subsequently, the defendant selected Sidney DeSilva to fill the position vacated by the plaintiff and assigned to him the canine that had been assigned to the plaintiff, id. ¶ 20, even though DeSilva had no prior experience working with a trained canine partner, id. ¶ 43. DeSilva was under forty years of age when he was selected to replace the plaintiff. Id.
In August of 2002, the plaintiff sued the District of Columbia and Fire Chief Adrian Thompson for age discrimination, seeking "to be returned to the Fire Prevention Division and allowed to work with another dog." Lindsey v. District of Columbia, Civil Action No. 02-1592 (RMC), slip op. at 7 (D.D.C. Feb. 3, 2005).*fn3 In that case, the plaintiff based his allegations of age discrimination on the fact that "he was replaced by a person younger than 40 years old as a canine handler." Id. Judge Collyer of this Court found that under the analysis required by the Supreme Court in McDonnell-Douglass Corp. v. Green, 411 U.S. 792 (1973), the plaintiff established a prima facie case of age discrimination because he was "over 40 years old and in the age-protected class, he was qualified to be a [s]ergeant canine handler, and he was replaced by [DeSilva][,] who was under 40 years old." Lindsey, slip op. at 10. However, the Court also found that the defendant had a legitimate, nondiscriminatory reason for its action with respect to the plaintiff when it decided that it was too burdensome for the plaintiff to work simultaneously as a sergeant and a canine handler. Id. at 10-12. Because the plaintiff did not provide sufficient evidence to demonstrate that the defendant's legitimate, nondiscriminatory justification was false, id. at 13-14, the Court granted the defendant's motion for summary judgment and dismissed the plaintiff's complaint in February of 2005, id. at 14.
In November or December of 2005, the defendant removed DeSilva from his position as an Accelerant Canine Detection Handler, Compl. ¶ 27, and "appointed Sergeant Proctor as the Accelerant Canine Detection Handler without advertising the position," id. ¶ 30. At the time of his appointment, Sergeant Proctor was also under forty years of age. Id. ¶ 47. In December of 2006, the defendant posted a vacancy announcement for a second position as a "Fire/Arson, Armed/Canine Handler." Id. ¶¶ 33-34. The announcement stated that to be eligible for the position the successful candidates had to be: "Members of the Department below the rank of Sergeant, with (5) years accredited service with [District of Columbia Emergency Medical Services]." Id. After posting this announcement, the defendant selected Scott Wilson, id. ¶¶ 34-36, 59, to fill a second Accelerant Detection Canine Handler position, id. ¶¶ 54-56. Wilson was also under the age of forty when he was selected. Id. ¶ 59.
After filing a "timely . . . complaint with the Equal Employment Opportunity Commission [(the 'EEOC')]," id. ¶ 3, the plaintiff filed a complaint in this case on October 26, 2007. In his complaint, the plaintiff asserts claims of age discrimination, id. ¶¶ 37-64, negligence, id. ¶¶ 65-68, and intentional infliction of emotional distress by the defendant, id. ¶¶ 69-77. In support of his age discrimination claim, the plaintiff asserts that he "was removed from his position, and had his dog confiscated and assigned to another younger employee, based solely upon his age (over 40 yrs.)." Id. ¶ 60. In support of his negligence claim, the plaintiff asserts that the "defendant owed [him] a duty of care to abide by the rules, regulations, procedures and laws then in effect within the District of Columbia Fire and [Emergency Medical Systems] Department and in the District of Columbia." Id. ¶ 66. The plaintiff maintains that the defendant breached that duty "by violating [the] plaintiff['s] rights and failing to abide by the law[,] rules[,] and regulations then in effect in the District of Columbia and the District of Columbia Fire and [Emergency Medical Systems] Department." Id. ¶ 67. Finally, in support of his intentional infliction of emotional distress claim, the plaintiff asserts that he "has . . . suffer[ed] emotional anguish[ ] and psychological distress in conjunction with the [d]efendant's actions in removing him from his post as a [h]andler and placing an individual younger than the [p]laintiff in the position of [c]anine [h]andler and preventing [the] [p]laintiff from applying for the position of [h]andler when the vacancy announcement was posted." Id. ¶ 73.
The defendant filed its motion for judgment on the pleadings on July 23, 2008. In support of its motion, the defendant argues that the plaintiff's claims are barred by the doctrine of res judicata because the plaintiff "again alleges that the [defendant] improperly removed him from his position as the Accelerant Detection Canine Handler and engaged in [a]ge [d]iscrimination," Def.'s Mem. at 5, and "[a]gain, [the] [p]laintiff bases his claim on the lone fact that the person who replaced him as the [h]andler was under the age of 40," id. The defendant asserts that Judge Collyer's memorandum opinion in Lindsey completely bars the plaintiff's ability to proceed with his current claims. Id. at 8.
In response to the defendant's motion for judgment on the pleadings, the plaintiff argues that his claims are not barred by res judicata because "[he] has not instituted a new cause of action as defined by the doctrine of res judicata[,] as [he] is presenting new evidence which, despite [a] diligent search, could not have been discovered during [his] prior action[,] as the actions and activities of the [d]efendant did not occur until after the final decision in [his] prior case." Pl.'s Opp'n at 11-12. The plaintiff argues that the selection of Sergeant Proctor for the position of canine handler, the posting of a vacancy announcement, and the selection of Wilson to fill that vacancy constitute newly discovered evidence demonstrating that the defendant's "reasons for [the plaintiff's] removal as a dog handler were [pretextual]." Id. at 15. The plaintiff concedes that the one-year limit on motions for reconsideration under Federal Rule of Civil Procedure 60(b) based on newly discovered evidence has expired. Id. at 11. However, he argues that this Court should allow the plaintiff to present the purported newly discovered evidence in an independent action pursuant to Goland v. CIA, 607 F.2d 339 (D.C. Cir. 1978), where the District of Columbia Circuit held that the one-year limit on Rule 60(b) motions based on newly discovered evidence does not apply to an independent action. Id. at 374.
Additionally, in response to the defendant's motion for judgment on the pleadings, the plaintiff argues that the defendant's act of selecting Sergeant Proctor for the canine handler position over the plaintiff is "a separate and distinct act of age discrimination . . . that serves a[s] the bas[i]s of [the plaintiff's] new discrimination case filed with the EEOC." Pl.'s Opp'n at 16. Plaintiff asserts that he should have been selected for the position over Sergeant Proctor if "any consideration of eligible persons at the rank of Sergeant was to be given." Id. at 15.
Replying to the plaintiff's opposition to its motion to dismiss, the defendant characterizes the plaintiff's reliance on Rule 60(b) as "misplaced." Def.'s Reply at 1. First, the defendant argues that Rule 60(b) "imposes a strict one year deadline for motions based upon newly discovered evidence." Id. Second, the defendant maintains that the relief accorded to "an independent action" under Rule 60 "is granted only under the most stringent of circumstances."
Id. at 2. Finally, the defendant urges that earlier resolved "[c]ases must be given final effect," and that allowing a "plaintiff to re-file the same case on a theory of newly discovered evidence that allegedly surface after the case was decided on the merits would preclude any case from reaching finality." Id. at 3. This result, the defendant warns, would preclude any municipalities from changing "its policies and/or procedures for fear that the change would be ...