Appeal from the United States District Court for the District of Columbia (No. 1:03-cv-00948)
The opinion of the court was delivered by: Brown, Circuit Judge:
Before: SENTELLE, Chief Judge, BROWN, Circuit Judge, and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge BROWN.
Appellant David M. Bowie, a former official of the District of Columbia Office of the Inspector General ("OIG"), was fired after five years on the job, purportedly for poor performance. Bowie brought this suit against the District and officers of the OIG ("Defendants") after he was fired, alleging that they conspired to deter his testimony in a subordinate's employment discrimination trial and ultimately fired him in retaliation for his refusal to help sabotage his fellow employee. The district court entered judgment in favor of Defendants on Bowie's § 1985(2) conspiracy claim, a related claim under § 1986 for failure to prevent the conspiracy, and his First Amendment retaliation claim. After a trial on Bowie's Title VII retaliation claim, the jury found in favor of Defendants. We vacate the dismissal of Bowie's §§ 1985(2) and 1986 conspiracy claims, because the district court erroneously required an invidious, class-based motive for the alleged conspiracy and because the district court concluded, without support, that Title VII was the exclusive remedy for this type of retaliation. McCord v. Bailey, 636 F.2d 606, 614 (D.C. Cir. 1980). We affirm in all other respects.
Bowie was the Assistant Inspector General of the Investigations Division at the OIG from November 1997 until his termination in August 2002. Defendants say Bowie was fired for performance problems. But Bowie says his termination was the culmination of a retaliatory conspiracy by his superiors to punish him for supporting Emanuel Johnson, a subordinate whom the OIG fired over Bowie's dissent.
Bowie's professional relationship with Johnson dated back to the years they overlapped at the Federal Bureau of Investigation ("FBI"). (Bowie had worked for the FBI for twenty-four years before he joined the OIG.) Back in 1993, Bowie and Johnson had initiated a class action against the FBI, alleging a discriminatory failure to promote black agents. Bowie claims that in 1999, after Johnson followed him from the FBI to OIG's Investigations Division, Bowie's boss, Inspector General Charles C. Maddox, told Bowie that FBI Assistant Director Jimmy C. Carter had threatened not to "provide any assistance or cooperation with the [OIG] in investigative matters" if Johnson was involved. Bowie interpreted this as "a direct demand that Maddox fire Johnson" or "suffer a severed
FBI/[OIG] relationship." Bowie suspects Carter's ultimatum was motivated by his anger at Johnson for filing several discrimination complaints--some against Carter himself--with the FBI's Equal Employment Office.
Maddox met with OIG supervisors, including Bowie, on February 7, 2000, to discuss Johnson's future with the office. Bowie says he warned Maddox that firing Johnson would violate office policy and federal law, and he recommended putting Johnson on a sixty-day Performance Improvement Plan ("PIP") instead. After the meeting, Maddox ordered Bowie to give Johnson notice that he could either resign or be fired. Bowie did so two days later on February 9, 2000, and Johnson was terminated effective March 1, 2000. See Johnson v. Maddox, 270 F. Supp. 2d 38, 43 (D.D.C. 2003), aff'd 117 F. App'x 769 (D.C. Cir. 2004).
Johnson filed a discrimination charge against OIG with the Equal Employment Opportunity Commission ("EEOC") on March 28, 2000. Deputy Attorney General Gail Davis, who was representing the District before the EEOC, drafted an affidavit for Bowie to sign that detailed Johnson's "failure to perform his duties in a satisfactory manner" in three investigations. OIG General Counsel Karen Branson sent the draft to Bowie with instructions to sign it that day. Bowie refused, citing "misstatements of fact" and "language that would convey impressions that [he] would not agree with." Branson then asked Bowie to submit an affidavit in his own words by the following day. Bowie's substantially revised affidavit still noted problems with one investigative report Johnson had drafted and related his "sense that Mr. Johnson clearly did not yet understand the mechanics of how things are done in [the OIG] compared to his former employer." But Bowie also opined that the harshest criticism leveled at Johnson was inconsonant with the views of Johnson's immediate supervisors, who had praised him as a "model investigator." Bowie's affidavit repeated his view that putting Johnson on a PIP would have been a better course of action than firing him. Bowie submitted his affidavit to Branson, but Davis decided not to file it with the OIG's position statement before the EEOC because "it included too much information that was not relevant to the issue at hand," and which Bowie was unwilling to eliminate.
Bowie claims Defendants started setting him up for termination after he expressed support for Johnson. Bowie had received top-notch performance reviews for his first three years at the OIG, but his standing in the office took a turn for the worse in 2000. Bowie says that on February 11, 2000, days after he objected to the plan to fire Johnson, Bowie's superiors accused him of "not stepping up to the plate." In February 2001--about three months after Johnson filed a Title VII complaint in district court--Maddox removed Bowie from a high-profile investigation. In December 2001, Maddox elevated a former subordinate, Jerome Campane, to a newly created position, Deputy Inspector General for Investigations, one step above Bowie. Around this same time, Bowie's performance rating began to fall. In October 2001, his rating dropped from 4.9 to 4.1 on a five-point scale; that is, from "significantly exceeds expectations" to "exceeds expectations."
In May 2002--within a month after Bowie's name appeared on Johnson's witness list--a mid-year performance evaluation criticized Bowie's management, the quality and quantity of his office's Reports of Investigation ("ROIs"), and his overprotectiveness toward his subordinates. Defendants point out that a prior report, issued in December 1999 by the
Inspections and Evaluations Division, had forecast some of these problems. According to the 2002 mid-year evaluation, Bowie had failed to remedy faults identified in an individual performance plan created for him sometime in 2001. Soon after the mid-year performance evaluation issued, Maddox ordered the Inspections and Evaluations Division to reassess the Investigations Division because it had failed to begin internal preparations for a statutorily mandated peer review. Al Wright, the Assistant Inspector General for the Inspections and Evaluations Division had recommended the reinspection, suggesting it would provide "a roadmap of options . . . to make changes and lay the groundwork for [Campane's] new management team." Wright issued the reinspection report on July 26, 2002, and it repeated the mid-year evaluation's criticism of Bowie. Bowie was fired less than three weeks later, on August 16, 2002.
Bowie filed suit in April 2003 against the District and OIG officials in their official and individual capacities.*fn1 Relevant to this appeal, Bowie alleged a conspiracy to deter him from testifying in support of Johnson under 42 U.S.C. §§ 1985(2) and 1986 (failure to prevent the conspiracy), infringement of his First Amendment freedom of speech under 42 U.S.C. § 1983, and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and the D.C. Human Rights Act, D.C. Code § 2-1401.01 et seq.
The district court dismissed Bowie's conspiracy and First Amendment claims, and his retaliation claims proceeded to trial. The jury returned a verdict for Defendants, and the district court denied Bowie's motions for judgment as a matter of law and for a new trial. Bowie timely appealed.
Bowie alleges Defendants "knowingly and willfully conspire[d]" to "obstruct [his] testimony before a Federal Court" in violation of 42 U.S.C. § 1985(2) and failed to prevent that conspiracy in violation of § 1986. The first clause of § 1985(2) permits an ...