The opinion of the court was delivered by: Reggie B. Walton United States District Judge
Harold C. Lindsey, the plaintiff in this civil lawsuit, brings this action against the District of Columbia alleging (1) age discrimination based on the circumstances surrounding his "remov[al] from his position as [an] Accelerant Detection Canine Handler" and the "appoint[ment] of Sergeant Proctor to the position . . . [,who u]pon information and belief . . . is under the age of 40," Complaint ("Compl.") ¶¶ 38, 46-47, (2) breach of "a duty of care to abide by the rules, regulations, procedures and laws then in effect within the District of Columbia Fire and [Emergency Medical Systems] Department and in the District of Columbia," id. ¶ 66, and (3) intentional infliction of emotional distress causing "humiliation, embarrassment, mental anguish[,] and pain and suffering," id. ¶ 70. Currently before the Court is the defendant's motion for summary judgment under Federal Rule of Civil Procedure 56. Upon consideration of the plaintiff's Complaint, the defendant's summary judgment motion, and all relevant memoranda and exhibits attached thereto,*fn1 the Court concludes for the following reasons that it must grant in part and deny in part the defendant's motion for summary judgment.
The plaintiff joined "the District of Columbia Fire and Emergency Medical Services ("DCFEMS") on or around November 1979 as a firefighter." Pl.'s Opp'n, Exhibit ("Ex.") 2 (The District of Columbia's Responses to Plaintiff's First Set of Requests for Admission ("Def.'s Resp. to Pl.'s Req. for Adm.")) ¶ 1. The plaintiff received several promotions during his tenure at the DCFEMS; in 1989, the plaintiff was elevated to the rank of Inspector, and then he was promoted to the rank of Fire Inspector in 1991,*fn2 before finally being promoted to the rank of Sergeant in January 2000. Id. at ¶¶ 2, 6; see Pl.'s Opp'n at 3. In addition to his other duties as a Sergeant, prior to February 2001 the plaintiff also served as an Accelerant Detection Canine Handler ("Canine Handler"). Def.'s Resp. to Pl.'s Req. for Adm. ¶ 5; Pl.'s Opp'n at 14, 17. In this additional position, the plaintiff's responsibilities included "the [i]nvestigation of fires to determine the cause and origin" through the use and assistance of a canine. Pl.'s Opp'n, Ex. 14 (Memorandum of Duties of a Canine Handler) at 2.
The "[p]laintiff was trained as [a]n arson accelerant detect[or] with [a] canine [named] Augie" in 1996. Pl.'s Opp'n at 3. When Augie retired, the plaintiff was then "certified to work with [a c]anine [named] Taz[,] since individuals are not certified alone but as a team comprised of a human handler and a trained canine." Id.; see Pl.'s Opp'n, Ex. 11 (Forensic & Scientific Investigations February 25, 2001 Letter ("Forensics Letter")) at 1. As a Canine Handler, the plaintiff "receive[d] compensation," in addition to his base salary, "of a minimum of two hours of overtime a day for taking care of the canine." The District of Columbia's Response to Plaintiff's Statement of Material Facts in Dispute ("Def.'s Resp. to Pl.'s Stmt.") ¶ 10."Because he was on call twenty-four hours a day, he was also guaranteed overtime for any hours spent outside of normal working hours completing duties related to operating and training a canine." Pl.'s Opp'n at 4; see Pl.'s Opp'n, Ex. 5 (Deposition of Sergeant Phillip Proctor ("Proctor Deposition")) at16:3-11, 17:13-22.
In 2001, the plaintiff was removed from the Canine Handler position, although he still maintained his position as a DCFEMS Sergeant. Pl.'s Opp'n at 4. While the plaintiff and the defendant disagree as to the timing of his removal, Def.'s Resp. to Pl.'s Req. for Adm. ¶ 5; Pl.'s Opp'n at 4; Plaintiff's Statement of Material Facts in Dispute ("Pl.'s Stmt.") ¶ 30; Lindsey v. District of Columbia, Civil Action No. 02-1592 (RMC), slip op. at 5 (D.D.C. Feb. 3, 2005), it appears from the February 25, 2001 letter to Chief Ronnie Few from David Latimer of Forensic & Scientific Investigations that the plaintiff's removal occurred in early 2001. See Pl.'s Opp'n, Ex. 11 (Forensics Letter) at 1 ("[W]e recently contacted Sgt. Harold Lindsey to monitor job performance with his new . . . Canine, 'Taz'. . . . During the conversation, Sgt. Lindsey . . . related some very distressing news; he said that Taz had been taken from him."). According to the plaintiff, he "was informed that he was being removed from [the Canine Handler] position because a DCFEMS officer (i.e., a Sergeant, Captain, or Lieutenant) could not be allowed to operate as a [Canine H]andler," due to the burden of performing both positions. Pl.'s Opp'n at 4. However, Richard Fleming, who at all relevant times in this case was a Deputy Chief Fire Marshall in the DCFEMS, indicated the plaintiff's removal from his Canine Handler position "had to do with the organization's structure and union regulations [regarding] who could be a [Canine H]andler, or a technician, and who couldn't." Pl.'s Opp'n, Ex. 3 (Deposition of Richard Fleming) at 23:6-12. During his tenure as a Canine Handler, the "[p]laintiff was the only member of the [DCFEMS] to be certified to work as an Accelerant Detection Canine Handler." Def.'s Resp. to Pl.'s Req. for Adm. ¶ 7. Upon receiving notice of his removal from the Canine Handler position, the plaintiff indicated "he was willing to give up his rank of Sergeant in order to remain part of the Accelerant Detection Team;" however, the "[d]efendant did not allow [the p]laintiff to" do so. Def.'s Resp. to Pl.'s Req. for Adm. ¶¶ 24, 25.
At the time of his removal as a Canine Handler, the "[p]laintiff was over 40 years of age." Id. at ¶ 9; Def.'s Resp. to Pl.'s Stmt. ¶ 1. Following the plaintiff's removal, "the next person to serve as . . . [a] Canine . . . Handler for DC was Sydney DeSilva," Def.'s Resp. to Pl.'s Req. for Adm. ¶ 12, who was under 40 years of age, id. at ¶ 16.
In August 2002, the plaintiff sued the District of Columbia and Fire Chief Adrian Thompson for age discrimination under the Age Discrimination in Employment Act ("ADEA"), seeking "to be returned to the Fire Prevention Division and allowed to work with another dog." Lindsey, slip op. at 7. Specifically, the plaintiff argued that the defendant discriminated against him by replacing him with "a person younger than 40 years old as a [C]anine [H]andler." Id. Relying on the Supreme Court's decision in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973), Judge Collyer found that the plaintiff had established a prima facie case of age discrimination because he was "over 40 years old and in the age-protected class, he was qualified to be a Sergeant [C]anine[ H]andler, and he was replaced by [DeSilva] who was under 40 years old." Lindsey, slip op. at 10. The Court then found, however, that the defendant had a legitimate, nondiscriminatory reason for its action when it decided that it was too burdensome for the plaintiff to work simultaneously as a sergeant and a Canine Handler, id. at 10-12, and because the plaintiff failed to present sufficient evidence to demonstrate that the defendant's legitimate, nondiscriminatory justification was a pretext designed to conceal its discriminatory actions, the Court granted the defendant's motion for summary judgment in February 2005, id. at 13-14. In her opinion in that case, Judge Collyer noted that despite the Department's explanation that it was too burdensome for the plaintiff "to adequately perform both duties as a Sergeant and a canine handler . . . does not undercut the fact that Sgt. Lindsey was qualified to perform both sets of duties." Lindsey, slip op. at 10, n.5.
In late 2005, the "District took disciplinary action against [DeSilva], and eventually removed him from the [C]anine [H]andler position." Def.'s Mem. at 20, ¶ 2.*fn3 At the onset of DeSilva's disciplinary action, the plaintiff notes that "Sergeant Proctor operated as the [canine] handler for the Department while simultaneously maintaining his duties as Sergeant." Pl.'s Stmt. ¶ 13. The defendant does not dispute this fact, but further explains that Sergeant Proctor never applied for, and was never granted, the [C]anine [H]andler position. Instead -- because he directly supervised a [C]anine [H]andler who, beginning in late-2005, was being disciplined for performance deficiencies that eventually led to his removal -- Sergeant Proctor was temporarily tasked with responsibility for handling the canine until these disciplinary proceedings were completed, and the position itself became vacant.
Def.'s Resp. to Pl.'s Stmt. ¶ 13. The defendant contends that because DeSilva "grieved his removal[,] the district was unable to fill the position or otherwise make any selections until the grievance process reached completion." Def.'s Mem. at 20, ¶ 3. The defendant further indicates that "under exigent circumstances designed to address the canine's welfare, Chief Richard Fleming instructed Sergeant Proctor, who had the requisite training, to fulfill the duties of the position on a temporary basis." Id. at ¶ 4. Moreover, the defendant notes that it "did not advertise the position of [Canine H]andler before placing Sergeant Proctor in the position," Def.'s Resp. to Pl.'s Stmt. ¶ 5, but contends this fact is immaterial because "Sergeant Proctor did not serve in the position of Accelerant Detection Canine Handler," Def.'s Resp. to Pl.'s Req. for Adm. ¶ 29.
Conversely, the plaintiff believes that Sergeant Proctor's appointment to the Canine Handler position "was never intended to be temporary [because] Sergeant Proctor operated as the [Canine H]andler and performed all of the duties and functions of a [Canine H]andler while performing the duties required of him in his rank [of] Sergeant for a minimum of one year." Plaintiff's Responses to Defendant's Statement of Uncontested Material Facts ("Pl.'s Resp.") ¶ 4. The plaintiff further contends that although the "defendant had a policy that a sergeant could not operate as a [Canine H]andler[, it] does not proffer a single policy or procedure in place within the DCFEMS that would prevent [him] from filling a vacancy while a grievance is pending." Pl.'s Resp. ¶ 3. And as further proof of his age discrimination claim, the plaintiff points out that when Sergeant Proctor assumed DeSilva's duties as a Canine Handler, he was also under forty years of age. See Pl.'s Opp'n, Ex. 5 (Proctor Deposition) at 6:21-22, 7:1 (Sergeant Proctor was born on June 12, 1966). The plaintiff contends that this fact is significant because "Chief Fleming and other DCFEMS officers regularly made remarks that the department wanted a younger workforce." Pl.'s Stmt. ¶ 7. In support of this assertion, the plaintiff cites a Memorandum from Chief Fleming dated December 3, 1998, which states "for the future I recommend selecting investigators and first line supervisors at an earlier stage of their careers. . . . Younger members will provide a greater return for the amount of time and money committed to their development." Pl.'s Opp'n, Ex. 15 (Memorandum from Chief Fleming) at 1.
On May 3, 2006, "the Department sent out a Memorandum for 'Members of Interest in the Position of Accelerant Canine Handler.'" Pl.'s Opp'n at 6;see Pl.'s Opp'n, Ex. 7 (May 3, 2006 Memorandum) at 1. While "the Memorandum listed a dozen very detailed qualifications and duties[,] . . . none [of them] indicated that an officer was not able [to] qualif[y] for the position," Pl.'s Opp'n at 6; see Pl.'s Opp'n, Ex. 7 (May 3, 2006 Memorandum) at 1-2, but the plaintiff was informed prior to and after the issuance of the May 3, 2006 Announcement that he was not able to apply because he was a Sergeant, Def.'s Resp. to Pl.'s Stmt. ¶ 12. On June 12, 2006, the plaintiff "filed a complaint for age discrimination with the [United States] Equal Employment Opportunity Commission ('EEOC') and the District of Columbia Office of Human Rights ('OHR')," alleging that he had been deemed ineligible to apply for the May 3, 2006 vacancy "because he held the rank of Sergeant[,] but [that] at the time of the Memorandum a much younger Sergeant Proctor was operating as a [Canine] Handler." Pl.'s Opp'n at 6. Specifically, the plaintiff stated in the typewritten portion of his EEOC charge that in May 2006, I was not afforded the opportunity to apply for a Sergeant position as a [Canine] Handler. . . . The person selected for this position has less than a year experience and is younger than me. In addition, employees selected for [Canine] Handler positions have been under the age of 40.
Def.'s Mem., Ex. C (EEOC Charge) at 1. In the questionnaire section of his EEOC charge, the plaintiff wrote that "the [F]ire [Department] sent a Sergeant to receive full training in becoming the [C]anine [H]andler and gave him the position without opening up the position to anyone in the department." Id. at 2.
In December 2006, "the Department issued a Vacancy Announcement for a 'Fire/Arson Investigator, Armed/Canine Handler,'" which indicated "[m]embers of the Department below the rank of Sergeant, with (5) years accredited service with DCFEMS" were eligible to apply. Pl.'s Opp'n at 6; Pl.'s Opp'n, Ex. 8 (December 1, 2006 Vacancy Announcement) at 1. Subsequent to the issuance of this announcement, Scott Wilson was assigned to the Canine Handler position. See Def.'s Resp. to Pl.'s Req. for Adm. ¶ 18. At the time of Wilson's assignment to the Canine Handler position, he also "was under 40 years of age." Id. Additionally, although the exact dates are unclear, at some point in time another Sergeant also served as a Canine Handler after the plaintiff's removal. Pl.'s Opp'n, Ex. 5 (Proctor Deposition) at 102:22-103:1-10. The plaintiff did not file a new EEOC charge based on the December 2006 vacancy posting, and he did not amend the EEOC administrative complaint that he filed in June 2006 to include any ...