The opinion of the court was delivered by: Richard W. Roberts United States District Judge
Plaintiff Mary Bonaccorsy brings this action against her employer, the District of Columbia ("D.C."), alleging federal constitutional violations and several common law torts arising out of an altercation begun by a co-worker and a fifteen-day suspension Bonaccorsy sustained in its wake. D.C. has moved to dismiss the complaint or in the alternative for summary judgment. Because D.C. has shown that Bonaccorsy failed to provide sufficient notice of her common law tort claims, that her claim alleging municipal liability fails to sufficiently allege that she was harmed as a result of a custom or policy, and that she failed to exhaust her administrative remedies before filing her 42 U.S.C. § 1981 claim for discrimination, the motion to dismiss or in the alternative for summary judgment will be granted.
Bonaccorsy, a detective employed by the District of Columbia Metropolitan Police Department ("MPD"), alleges that on February 1, 2008, she traveled to the Fifth District police station to investigate allegations of a threat against another MPD officer. (Compl. ¶ 3.) While there, MPD Sergeant Cassandra Gudger threatened Bonaccorsy regarding a "relationship [Bonaccorsy and Gudger] shared with MPD Detective . . . Ray Crawford" and said Crawford supported Gudger confronting Bonaccorsy. (Compl. ¶¶ 4-7.) As Bonaccorsy left the station, Gudger continued the confrontation and said that "it was not over." (Id. ¶ 8.) On the same day, Bonaccorsy sought and was granted an emergency temporary protective order in the District of Columbia Superior Court against Gudger and Crawford. (Id. ¶¶ 8-9.) Following a hearing three days later, the court extended the temporary protective order for a period of 14 days. (Id. ¶ 10.)
The MPD conducted an internal affairs investigation of the facts surrounding Bonaccorsy's request for a temporary protective order. It found that contrary to the statements she made in her request to the court when she sought the temporary protective order, Bonaccorsy was not actually in fear of Crawford. (Compl. ¶ 11; Def.'s Mem. in Supp. of Mot. to Dismiss or for Summ. J. ("Def.'s Mem.") at 1-2.) Based upon that determination, the MPD served Bonaccorsy with a notice of proposed adverse action.
It charged her with engaging in behavior that was prejudicial to the reputation and good order of the police force in violation of MPD General Order 120.21, and proposed a 15-day suspension as punishment. (Compl. ¶ 19; Def.'s Mem. Ex. 1.) Bonaccorsy opposed the charge and the proposed punishment. The Commander of the Office of Human Resource Management issued a final decision finding that Bonaccorsy violated MPD General Order 120.21 and upholding the proposed 15-day suspension. Among other things, the Commander found that Bonaccorsy sought the protective order against Crawford knowingly withholding from the judges facts belying her claim to be in fear of Crawford, including that Crawford had never displayed any behavior during their relationship that ever put her in fear, that she never complained to Crawford's superiors that she feared him, and that indeed she was dismayed that Crawford was ending the relationship. (Def.'s Mem. Ex. 2 at 2-3.) Bonaccorsy appealed the suspension to the Chief of the MPD, who denied her appeal on September 15, 2008. (Def.'s Mem. Ex. 3.)
On October 10, 2008, D.C.'s Office of Risk Management received a letter from Bonaccorsy dated September 25, 2008 that purported to be Bonaccorsy's notice that claimants are required to provide to the Mayor of the District of Columbia under D.C. Code § 12-309 of the time, place, cause and circumstances within six months of any claim arising against the District of Columbia for unliquidated damages. (Def.'s Mem. Ex. 5.) It alleged that on February 1, 2008, Gudger had assaulted and threatened her, that her suspension violated Title VII and the First Amendment because it was retaliation against her for exercising her right to petition the courts for a protective order, and that the suspension caused her extreme emotional distress and harmed her reputation. (Id.) D.C.'s Office of Risk Management replied that her claims failed to provide the timely and complete notice within the required six-month period. (Def.'s Mem. Ex. 6.) Meanwhile, on October 6, 2008, D.C. received a letter from the union to which Bonaccorsy belonged, stating that "in accordance with . . . the Collective Bargaining Agreement, the [Fraternal Order of Police, Metropolitan Police Labor Committee] demands arbitration on behalf of Detective Mary A. Bonaccorsy[.]" The letter stated that the Union sought dismissal of Bonaccorsy's suspension as a remedy. (Def.'s Mem. Ex. 4.)
On December 9, 2008, Bonaccorsy filed the complaint in this matter against the District of Columbia containing nine counts: retaliation in violation of Bonaccorsy's rights under the First Amendment of the U.S. Constitution as protected through 42 U.S.C. § 1983 (Count I); discrimination in violation of 42 U.S.C. § 1981 (Count II); defamation (Count III); assault in violation of D.C. Code §§ 403-407 (Counts IV, V, and VI); malicious prosecution (Count VII); intentional infliction of emotional distress (Count VIII), and conspiracy to commit tortious acts (Count IX).
(Compl. ¶¶ 22-51.) Her arbitration was still pending. (Def's Mem. Ex. 5.)
The District of Columbia moves for summary judgment on Counts III through IX based on Bonaccorsy's purported failure to provide the timely and ample notice to the Mayor required by D.C. Code § 12-309*fn1 (Def.'s Mem. at 5-8), and on Count II claiming that Bonaccorsy failed to exhaust her administrative remedies.*fn2
(Id. at 9-11.) D.C. further moves to dismiss Count I arguing that the complaint fails to state a viable claim of municipal liability. (Id. at 8-9.) Bonaccorsy opposes D.C.'s motion, and cross-moves for summary judgment on all counts, asserting that "the undisputed facts support entry of summary judgment" in favor of Bonaccorsy.*fn3 (Pl.'s Mem. in Supp. of Mot. for Summ. J. at 4.)
Summary judgment may be appropriately granted when the moving party demonstrates that there is no genuine issue as to any material fact and that moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). "In considering a motion for summary judgment, [a court is to draw] all 'justifiable inferences' from the evidence . . . in favor of the non-movant." Cruz-Packer v. Dist. of Columbia, 539 F. Supp. 2d 181, 189 (D.D.C. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, a non-moving party cannot defeat summary judgment by "simply show[ing] that there is some metaphysical doubt as to the material facts." Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009) (quoting Matsushita, 475 U.S. at 586). "Briefs containing mere allegations or merely denying the movant's pleading are not enough to prevent summary judgment; instead, a non-movant must go beyond the pleadings to proffer specific facts rebutting the movant's assertions." Graham v. Holder, Civil Action No. 03-1951 (RWR), 2009 WL 3088816, at *3 (D.D.C. September 29, 2009) (citing Greer v. Paulson, 505 F.3d 1306, 1315 (D.C. Cir. 2007), and Burke v. Gould, 286 F.3d 513, 517-18 (D.C. Cir. 2002)). "The relevant inquiry 'is the threshold inquiry of determining whether there is a need for a trial - - whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.'" Single Stick, Inc. v. Johanns, 601 F. Supp. 2d 307, 312 (D.D.C. 2009) (quoting Anderson, 477 U.S. at 250). A genuine issue is present in a case where the "evidence is such that a reasonable jury could return a verdict for the non-moving party," in contrast to a case where the evidence is "so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 248, 252.
A complaint can be dismissed under Federal Rule of Civil Procedure 12(b)(6) when a plaintiff fails to state a claim upon which relief can be ...