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Kristopher Baumann, Chairman of the Fraternal of Police, Metropolitan Police Labor Committee v. District of Columbia

April 8, 2011


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



Plaintiff Kristopher Baumann ("Plaintiff" or "Baumann"), Chairman of the District of Columbia Fraternal Order of Police and an Officer of the Metropolitan Police Department ("MPD"), brings this action alleging that his employer unlawfully retaliated against him for engaging in protected activity in violation of his rights under the First Amendment, the District of Columbia Whistleblower Protection Act, D.C. Code §§ 1-615.51 et seq. ("DCWPA"), and the District of Columbia Police Investigations Concerning First Amendment Activities Act of 2004, D.C. Code §§ 5-333.01 to 5-333.13. On September 30, 2010, the Court granted-in-part and denied-in-part Defendants' motion for judgment on the pleadings. See Baumann v. District of Columbia, 744 F. Supp. 2d 216 (D.D.C. 2010). On November 15, 2010, Baumann filed his Second Amended Complaint, which adds four MPD officials as defendants in both their official and individual capacities and also names Defendant Cathy L. Lanier, Chief of MPD, as a defendant in her individual capacity. Presently pending before the Court are Defendants' [59] Motion to Partially Dismiss Plaintiff's Second Amended Complaint and [60] Motion to Stay Discovery pending resolution of their motion to dismiss. For the foregoing reasons, the Court shall GRANT-IN-PART and DENY-IN-PART Defendants' Motion to Partially Dismiss Plaintiff's Second Amended Complaint and DENY Defendants' Motion to Stay Discovery as moot.


The facts alleged by Baumann in the First Amended Complaint were discussed at length in the Court's prior Memorandum Opinion, and the Court assumes familiarity with that opinion here. To summarize, this action arises out of a "barricade" incident that occurred on or about May 30, 2009. Following that incident, Baumann directed the Fraternal Order of Police ("FOP") Safety Committee to investigate actions that MPD officials had allegedly taken during the incident. The investigation uncovered a taped copy of the radio communications that occurred during the incident, and Baumann provided a portion of these recordings to two newspaper reporters. MPD Chief of Police Cathy Lanier ("Chief Lanier") ordered Lieutenant Dean Welch ("Lt. Welch") to conduct an Internal Affairs investigation into the unauthorized release of the recordings. Baumann alleges that the Internal Affairs investigation headed by Lt. Welch violated the terms of a collective bargaining agreement between MPD and FOP regarding the manner in which MPD may investigate union activities. Baumann was ultimately compelled to reveal during the Internal Affairs investigation that he had ordered the FOP Safety Committee to investigate the barricade incident and that he had given the audio recordings to the press. Baumann was threatened with termination and was temporarily relieved of his police duties, purportedly due to a missed training session. Baumann also claims that MPD sent a uniformed officer to "monitor" a speech he gave to a political group.

In his Second Amended Complaint, Baumann adds only a few new factual allegations pertaining to the four individuals who are added as defendants in their official and individual capacities: Assistant Chief of Police Patrick Burke ("Asst. Chief Burke"), Assistant Chief of Police Michael Anzallo ("Asst. Chief Anzallo"), Commander Christopher Lojacono ("Cmdr. Lojacono"), and Lt. Welch. Specifically, Baumann alleges that Asst. Chief Burke initiated the Internal Affairs investigation and provided false information knowing that it would contribute to the discipline imposed on Baumann. See Second Am. Compl. ¶ 42. Baumann alleges that Asst. Chief Anzallo, Cmdr. Lojacono, and Lt. Welch were aware of Baumann's protected disclosures and knowingly participated in an unjustified investigation that led to disciplinary actions against Baumann. See id. ¶ 43. Baumann also incorporates by reference factual allegations set forth in a post-hearing brief written by FOP in support of its unfair labor practice complaints pending before the Public Employee Review Board ("PERB"). See Second Am. Compl. ¶¶ 41-43. That post-hearing brief was attached as an exhibit to Plaintiff's Motion for Leave to File Second Amended Complaint, which the Court granted.


Under the Federal Rules of Civil Procedure, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. (8)(a), "in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Although "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion to dismiss for failure to state a claim, a plaintiff must furnish "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Id. "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 557). Rather, a complaint must contain sufficient factual allegations that, if accepted as true, "state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. 1949 (citing Twombly, 550 U.S. at 556).

When considering a motion to dismiss for failure to state a claim, the court "must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). "The complaint must be liberally construed in favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts alleged." Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979) (internal quotation marks omitted). However, a plaintiff must provide more than just "a sheer possibility that a defendant has acted unlawfully." Iqbal, 129 S.Ct. at 1950. When a complaint's well-pleaded facts do not enable a court, "draw[ing] on its judicial experience and common sense," "to infer more than the mere possibility of misconduct," the complaint has not shown that the pleader is entitled to relief. Id.


Defendants move to dismiss the new claims asserted in the Second Amended Complaint, i.e., the claims Baumann asserts against Chief Lanier in her individual capacity and the claims asserted against Asst. Chief Burke, Asst. Chief Anzallo, Cmdr. Lojacono, and Lt. Welch. Defendants argue that these claims against individuals should be dismissed because: (1) at the time of the alleged violations, the DCWPA did not provide a cause of action against individual supervisors; (2) any claims under the DCWPA are time barred; (3) Baumann has not alleged that any of these individual defendants were personally involved in the alleged deprivation of Baumann's constitutional rights; and (4) Baumann has failed to provide a "short and plain statement" of his claims as required by Rule 8. The Court shall address each of these arguments below.

A. Liability for Individual Supervisors Under the DCWPA

Defendants argue that any claims against individual supervisors under the DCWPA must be dismissed because the DCWPA did not provide a cause of action against individuals at the time of the alleged violations. This Court has previously addressed the scope of liability under the DCWPA prior to 2010, when the statute was amended to explicitly allow for suits against individual defendants. In Payne v. District of Columbia, 741 F. Supp. 2d 196 (D.D.C. 2010), this Court held that the DCWPA as originally enacted provided a cause of action only against the District of Columbia. See id. at 210-11. In doing so, the Court agreed with opinions issued by several other judges in this District that the DCWPA did not provide a cause of action against individual supervisors. See Tabb v. District of Columbia, 477 F. Supp. 2d 185, 189 (D.D.C. 2007) (Friedman, J.); Winder v. Erste, Civil Action No. 03-2623, 2005 WL 736639, at *9 (D.D.C. Mar. 31, 2005) (Bates, J.). The Court's decision was based in part on the plain language of the statute:

An employee aggrieved by a violation of ยง 1-615.53 may bring a civil action before a court or a jury in the Superior Court of the District of Columbia seeking relief and damages, including but not limited to injunction, reinstatement to the same position held before the prohibited personnel action or to an equivalent position, and reinstatement of the employee's seniority rights, restoration of lost benefits, back pay and interest on back pay, compensatory damages, and reasonable costs and ...

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