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Owens v. District of Columbia

July 6, 2009


The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge


Plaintiff Sonya Owens, proceeding pro se, has filed an amended complaint alleging that the District of Columbia, Office of the Corporation Counsel (now referred to as the Office of theAttorney General of the District of Columbia ("OAG")), and Mayor Adrian Fenty, in his official capacity, engaged in unlawful employment discrimination and retaliation, defamation, and deprivation of civil rights in violation of a variety of federal statutes, as well as the District of Columbia Comprehensive Merit Personnel Act ("CMPA"), D.C. Code 1-601.1 et seq. Plaintiff seeks both monetary damages and equitable relief, including reinstatement. Plaintiff's allegations against these same defendants formed the basis of an earlier complaint that she filed in this Court, with the assistance of counsel, alleging discrimination on the basis of race and gender, as well as unlawful retaliation. See Owens v. District of Columbia ("Owens I"), No. 05-CV-1729 (D.D.C. filed Aug. 31, 2005). That civil action came before Magistrate Judge Alan Kay, went to trial, and resulted in a jury verdict for defendants. See Clerk's Judgment, Owens I, No. 05-CV-1729 (D.D.C. Jan. 24, 2008). Defendants have filed a motion to dismiss the amended complaint for failure to state a claim upon which relief can be granted. For the reasons set forth below, defendant's motion will be granted in part and denied in part.



The facts, as alleged in the amended complaint and established through exhibits and other court documents, are as follows:

Plaintiff was a captain with the District of Columbia Metropolitan Police Department ("MPD"). (Am. Compl. ["Compl."] [Dkt. No. 12] ¶ 4.) In June 2001, plaintiff was interviewed by the Equal Employment Opportunity Commission ("EEOC") as a witness during the investigation of gender and pregnancy discrimination complaints filed by two other officers against a MPD district commander. (Id. ¶ 6.) During the course of that investigation, plaintiff stated that the two officers had been subject to "disparate inequitable treatment." (Id. ¶ 7.) In July 2004, the MPD learned that the two officers had filed a federal discrimination lawsuit, and in November, the MPD learned that plaintiff had been summoned as a witness in that suit. (Id. ¶¶ 16, 18.) Subsequently, plaintiff's "police powers were revoked," "her access to the general public was restricted," her "duty assignments and responsibilities were removed without being told beforehand," and she received a notice of proposed suspension "for 'overdue correspondence.'" (Id. ¶¶ 19-20.) In February 2005, plaintiff testified in the discrimination lawsuit. (See id. ¶¶ 21-26.) MPD then informed her that she would be suspended as previously notified. (Id. ¶ 27.)

In March 2005, plaintiff was interviewed by Internal Affairs regarding a citizen complaint filed by the State of Virginia Arlington County Animal Welfare Shelter ("AAS"). (Compl. ¶¶ 28-33.) Plaintiff, having apparently viewed this interview as a custodial interrogation, "invoked her civil rights . . . ." (Id. ¶ 32.) That same month, following this interview, the MPD "revoked all of [plaintiff's] official duties," referred her to the Office of Professional Responsibility for follow-up questioning on the AAS matter (for which plaintiff sought legal advice and counsel), and suspended her for two weeks for "overdue correspondence." (Id. ¶¶ 34-48.) Plaintiff appealed her suspension to the Office of Employee Appeals ("OEA"). (Id. ¶ 49.)

In April 2005, plaintiff was again suspended for twelve days for being absent without leave ("AWOL") for 80 hours during her previous suspension. (Compl. ¶ 58.) She therefore supplemented her pending OEA appeal to cover this second suspension. (Id. ¶ 60.) In May plaintiff received a notice of proposed termination from the MPD for, among other things, being involved in criminal activity. (Id. ¶ 61.) In response, she requested copies of all documents and information relevant to the MPD's "investigation(s)" (presumably relating to the claim of her involvement with criminal activity), although she did not receive anything in response to that request. (Id. ¶¶ 62, 64.) In August, after she filed a Notice of Intent to sue the District, the MPD conducted a termination hearing and, shortly before the hearing, provided her with some of the information she had previously requested. (Id. ¶¶ 65-67.) Plaintiff requested a continuance of the hearing so that she could review the information she had been given, and the continuance was granted, although she was not notified of this. (Id. ¶¶ 68-69.)

On August 31, 2005, plaintiff filed Owens I alleging discrimination and retaliation under 42 U.S.C. § 1981 and three provisions of the D.C. Human Rights Act ("DCHRA"), D.C. Code § 2-1402.11 and § 2-1402.61(a) & (c). (See Defs.' Mot. to Dismiss Amended Compl. ["Mot."] [Dkt. No. 14], Ex. 1 (Owens I complaint) at 15-19.) Shortly thereafter, the MPD resumed plaintiff's termination hearing without notifying her and included several additional charges. (Compl. ¶¶ 71-72.) In October 2005, the MPD notified plaintiff that it had decided to terminate her employment as of November. (Id. ¶ 73.) In December, plaintiff appealed her termination to the OEA. (Id. ¶ 74.)

In July 2006, an OEA administrative law judge ("ALJ") dismissed plaintiff's appeal of her suspension. (Compl. ¶ 75.) In August, plaintiff filed a petition seeking review of that dismissal by the Board of the OEA ("the Board"). (Id. ¶ 76.) In September, the OEA also ordered MPD to provide plaintiff with transcripts of her termination hearings, and in October, the OEA conducted a hearing on plaintiff's termination appeal. (Id. ¶¶ 77-78.) A year later, in November 2007, an OEA ALJ upheld the termination. (Id. ¶ 79.) In December plaintiff filed a petition for review of her termination with the Board. (Id. ¶ 80.)

Owens I went to trial in January 2008, with Magistrate Judge Alan Kay presiding. Plaintiff contends that during trial, witnesses for the MPD and the AAS testified that the AAS did not, in fact, file a citizen complaint regarding plaintiff, and that MPD witnesses also testified about how, among other things, the MPD "had conducted 'an ongoing criminal investigation that never stopped'" since November 2004. (Compl. ¶¶ 81-87.) On January 22, the jury found for the defendants, concluding that plaintiff had failed to prove that defendants had retaliated or discriminated against her. (Mot., Ex. 2 (Owens I jury verdict form) at 1-2.) The judgment in Owens I was entered two days later. (See id., Ex. 3 (Owens I judgment).) No appeal was taken from this judgment.

On April 9, 2008, plaintiff filed a petition for review with the District of Columbia Court of Appeals that "raise[d] the issues in this suit" and sought review of the OEA ALJ's decisions. (Pl.'s Opp'n to Mot. to Dismiss ("2nd Opp'n")*fn1 [Dkt. No. 17] at 3; see id. at 7 (Court of Appeals order).) However, on May 7, 2008, the Court of Appeals dismissed the petition for lack of jurisdiction. (Id., Ex. 1 at 7.) The court explained that because plaintiff's petitions for review were also still pending with the OEA Board, no appealable final administrative order had been issued. (Id. at 3.) The dismissal was without prejudice to plaintiff "filing a petition for review once a final order has issued." (Id.)

On May 12, 2008, plaintiff moved to withdraw her two petitions for review that were pending before the OEA Board. (Compl., Ex. 1 at 5-7.) On July 24, the Board granted plaintiff's motion, dismissed both appeals, and served plaintiff with notice. (Compl. ΒΆ 87 & Ex. 1 at 2, 4.) The Board's order of dismissal noted that the ALJ's initial decisions would become the OEA's "final decision[s]" after five days -- i.e., on or about August 1, 2008 -- and that once plaintiff received formal notice of the final decisions, she would have 30 days to take an appeal to the Superior Court of the District of Columbia. (Compl., Ex. 1at 3.) Subsequently, plaintiff appears to have filed another petition with the Court of Appeals, because on September 25, the court "dismiss[ed] her petition as [she] is not aggrieved . . . ." (2nd Opp'n at 7 (Court of Appeals order).) Plaintiff moved for ...

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