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Mentzer v. Lanier

January 6, 2010

MICHAEL L. MENTZER, ET AL., PLAINTIFFS,
v.
CATHY L. LANIER, CHIEF OF THE METROPOLITAN POLICE DEPARTMENT, DEFENDANT.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

This case is brought by Plaintiffs Michael Mentzer and Leo Scully against Defendant Cathy L. Lanier in her official capacity as Chief of the Metropolitan Police Department.*fn1

Plaintiffs allege that they suffered adverse employment actions in retaliation for engaging in activities protected by Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., as amended, the D.C. Whistleblower Protection Act, D.C. Code §§ 1-615.51 et seq., and the D.C. Human Rights Act, D.C. Code §§ 2-1401 et seq. Presently before the Court is Defendant's [29] Motion for Summary Judgment. Plaintiffs have filed a brief in opposition, and Defendant has filed a reply. For the reasons explained below, the Court shall grant Defendant's motion for summary judgment.

I. BACKGROUND

At all times relevant to this action, Plaintiffs Michael Mentzer and Leo Scully were police officers within the Special Operations Division of the D.C. Metropolitan Police Department ("MPD"). Def.'s Stmt.*fn2 ¶¶ 1-2. Plaintiffs previously worked within the Special Operations Division's Horse Mounted Unit ("HMU"). Id. ¶ 3. While working in the HMU, Plaintiffs believed that other officers in the unit were not performing their duties appropriately. Id. ¶ 4. Plaintiffs were concerned that other officers were not punctual, failed to exercise and care for the horses regularly, and inappropriately engaged in outside employment. Id.

On September 11, 2003, Officer Mentzer sent a letter to Assistant Chief of Police Broadbent detailing his concerns. See Def.'s Mem. P. & A. Supp. Def.'s Mot. Summ. J. ("Def.'s Mem."), Ex. A (Sept. 11, 2003 Letter). Although Mentzer had previously voiced his complaints to management staff within the Special Operations Division, the September 11, 2003 letter was his first written complaint. See id.; Pls.' Stmt. ¶ 7. Mentzer's letter accused Sergeant Dale Poskus, among other things, of mismanaging the HMU, submitting fraudulent receipts for reimbursement, failing to disclose the poor health condition of his horse, and, after leaving the HMU, stealing horse feed. See Def.'s Mem., Ex. A at 1-3. The letter claims that Mentzer and Scully "have been branded troublemakers" for their attempts to criticize and investigate mismanagement. See id. at 1.

Plaintiffs were also concerned with the stable in which HMU horses were housed, which was a federally-owned facility at Fort Dupont. Def.'s Stmt. ¶ 5. Plaintiffs believed that the horses should have been stabled at a city-owned facility, the historic Cavalry Barn on the campus of St. Elizabeth's Hospital. Id. ¶¶ 5-6. On March 29, 2004, Plaintiffs attended a meeting with D.C. Councilmember Jim Graham, Assistant Chief Broadbent, and other officials concerning the HMU and the plans for future stabling of horses. Id. ¶ 8; Compl. ¶ 30.

On April 9, 2004, Plaintiffs attended a party in which a U.S. Capitol police officer became belligerent. Def.'s Stmt. ¶ 9. Plaintiffs handcuffed the officer in an effort to control him. Id.; see Def.'s Mem., Ex. B (Dep. of Michael Mentzer) at 128; Def.'s Mem., Ex. C (Dep. of Leo Scully) at 106-07. Park Police officers then informed Plaintiffs that they would handle the situation and asked Plaintiffs to leave. Mentzer Dep. at 128; Scully Dep. at 107. The handcuffed officer later claimed that Plaintiffs assaulted him. Def.'s Stmt. ¶ 10. Plaintiffs were initially investigated by Capitol Police and later were investigated by MPD. Id.; Scully Dep. at 107-08. On April 14, 2004, five days after the incident, MPD placed Plaintiffs on paid administrative leave and removed them from the HMU. Def.'s Stmt. ¶ 11; Pls.' Mem., Ex. 8 (Dep. of Michael Mentzer) at 133. Plaintiffs' police powers were revoked for approximately two months. See Mentzer Dep. at 147.*fn3 Plaintiffs claim that the actual investigation was completed in just two days and that there was no reason to place them on administrative leave. See Mentzer Dep. at 133; Scully Dep. at 109. Nevertheless, Plaintiffs were not disciplined as a result of this particular investigation. Def.'s Stmt. ¶ 12. When Sergeant Scully returned to the HMU, he disciplined several officers. Scully Dep. at 113. Those officers complained that Scully was "picking on them" to then-Commander Lanier. Id. at 113-15.

On August 4, 2004, Sergeant Scully was removed from the HMU and detailed to the Special Events Branch. Def.'s Stmt. ¶ 13.*fn4 MPD has asserted that the reason for Scully's transfer was that there was a shortage of sergeants in the Special Events Branch. See Def.'s Mem., Ex. D (Dep. of MPD Police Chief Catherine Lanier) at 81-86; Scully Dep. at 112. Scully was told that he could return to the HMU after the 2005 presidential inauguration. See Lanier Dep. at 84; Scully Dep. at 112-13. However, Scully was not offered a chance to return to the HMU until 2006. See Lanier Dep. at 83-84; Def.'s Mem., Ex. E (Scully Interrog. Answers) at 2. When Scully was detailed out of HMU on August 4, 2004, he was told that there was going to be an investigation into his alleged misconduct. See Scully Dep. at 117. At one point, Scully was told that he was moved out of HMU because of this investigation. Id. at 113. However, Commander Lanier told Scully in November 2004 that she had never initiated any such investigation. Id. at 117. In March 2005, Scully was issued a Letter of Reprimand, apparently for using an expletive in an email to another officer regarding a situation that directly affected Scully. See Scully Dep. at 100. Scully filed a charge of discrimination with the D.C. Office of Human Rights on March 30, 2005. See Pls.' Mem., Ex. 4 (Notice of Charge of Discrimination).

In December 2004, Officer Mentzer requested that he be given an opportunity to work in a different division of the Special Operations Division with a larger group of people so that he could show that he was not a troublemaker. Mentzer Dep. at 166.*fn5 Mentzer was investigated for insubordination after his supervisor alleged that Mentzer refused to return agency equipment for use in the presidential inauguration during January 2005. Def.'s Stmt. ¶ 15. After a four-month period of limited duty, Mentzer returned to the HMU in April 2005. See Mentzer Dep. at 166. Mentzer missed a mandatory medical clinic appointment on May 11, 2005, despite working that day. Def.'s Stmt. ¶ 16. On June 9, 2005, Mentzer received a performance warning notice.

Def.'s Stmt. ¶ 17. The notice indicated that Mentzer was in danger of being rated below average and cited three areas of improvement: interpersonal relations, work habits, and general policing. See Def.'s Mem., Ex. F (Performance Rating Warning Notice). Mentzer was ultimately transferred out of the HMU and detailed to the Special Events Branch in June 2005. Def.'s Stmt. ¶ 18.

Plaintiffs claim that their jobs with the Special Events Branch are not as favorable as they were in the HMU. Although their salaries and benefits were not changed by the transfer, Plaintiffs claim that they would have greater overtime opportunities and a more favorable work schedule in the HMU. See Mentzer Dep. at 181. Moreover, Plaintiffs were passionate about horses and the HMU. See Lanier Dep. at 58.

In June 2006, Mentzer and Scully met with police Commander Contee and had a discussion regarding their possible return to the HMU. See Scully Interrog. Answers at 1-2. Scully learned that several officers within the HMU (about whom Scully had previously complained) attacked Scully's and Mentzer's character and made threats about what might happen if they returned to the unit. Id. at 2. These officers would not be moved out of the HMU. Id. Contee told Scully that he would move Mentzer and Scully back to the HMU if they wanted to go back. Id. However, Scully did not return to the HMU because of the continuing problems in the unit. Id.

Plaintiffs filed this action on February 15, 2006. During discovery, Plaintiffs produced several recordings of MPD officers, including meetings with Police Chief Lanier, that were made without prior approval of MPD and without consent of those recorded. Def. Stmt. ¶¶ 21-22. MPD conducted an internal affairs investigation of these recordings in August 2008. Id. ¶ 23. The internal affairs investigation concluded that Officer Mentzer should be disciplined. See Def.'s Mem., Ex. H (undated MPD Internal Affairs Bureau Memorandum).

II. LEGAL STANDARD

Summary judgment is proper when "the pleadings, the discovery [if any] and disclosure materials on file, and any affidavits 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). Under the summary judgment standard, the moving party bears the "initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). In response, the non-moving party must "go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Id. at 324 (internal quotation marks omitted). All underlying facts and inferences are analyzed in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).

The mere existence of a factual dispute, by itself, is insufficient to bar summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 248. To be material, the factual assertion must be capable of affecting the substantive outcome of the litigation; to be genuine, the issue must be supported by sufficient admissible evidence that a reasonable trier of fact could find for the non-moving party. Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987); Liberty Lobby, 477 U.S. at 251-52 (the court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law"). "If the evidence is merely colorable, or is not sufficiently probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50 (internal citations omitted). "Mere allegations or denials in the adverse party's pleadings are insufficient to defeat an otherwise proper motion for summary judgment." Williams v. Callaghan, 938 F. Supp. 46, 49 (D.D.C. 1996). The adverse party must do more than simply "show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Conclusory assertions offered without any factual basis for support do not satisfy an opponent's burden to set forth "affirmative evidence" showing a genuine issue for trial. Broaddrick v. Exec. Office of the President, 139 F. Supp. 2d 55, 65 (D.D.C. 2001) (citing Laningham, 813 F.2d at 1241).

III. DISCUSSION

Defendant has asserted five different bases for her Motion for Summary Judgment. First, Defendant contends that Plaintiffs' complaints concerning the HMU do not constitute protected disclosures under the D.C. Whistleblower Protection Act ("D.C. WPA"). Second, Defendant contends that Plaintiffs have not suffered any adverse employment action to provide a basis for liability under Title VII or the D.C. Human Rights Act. Third, Defendant contends that there is no evidence that the asserted non-discriminatory reasons for the employment actions at issue were a pretext for retaliation. Fourth, Defendant claims that she cannot be held personally liable under Title VII or the D.C. Human Rights Act. And fifth, Defendant raises defenses under the statute of limitations and notice of claim statute with respect to alleged retaliatory acts occurring prior to February 2005. The Court shall address each argument in turn.

A. Protected Disclosures Under the D.C. Whistleblower Protection Act

The D.C. WPA states "[a] supervisor shall not threaten to take or take a prohibited personnel action or otherwise retaliate against an employee because of the employee's protected disclosure or because of an employee's refusal to comply with an illegal order." D.C. Code § 1-615.53. The statute defines a protected disclosure as:

any disclosure of information, not specifically prohibited by statute, by an employee to a supervisor or a public body that the ...


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