The opinion of the court was delivered by: John D. Bates United States District Judge
Plaintiffs Wesley Hamilton and Joseph Mitchell are former arson investigators for the District of Columbia Fire and Emergency Medical Services ("DCFEMS"). They allege that DCFEMS sought to adversely affect their employment because they are African-American, and have they filed suit against the District of Columbia ("the District") and DCFEMS claiming violations of 42 U.S.C. §§ 1981, 1983, and 1985, and intentional infliction of emotional distress. In a prior opinion, this Court dismissed plaintiffs' § 1985 claim and defendant DCFEMS. Hamilton v. District of Columbia, 720 F. Supp. 2d 102, 107-09 (D.D.C. 2010). The District has now moved for summary judgment, on the ground that plaintiffs' § 1981 and § 1983 claims are barred by the statute of limitations and that plaintiffs cannot establish that a policy or custom of the District caused the adverse employment action that they challenge here. Additionally, the District moves for summary judgment on plaintiffs' intentional infliction of emotional distress ("IIED") claim, arguing that it is barred by the statute of limitations, that plaintiffs failed to provide notice under D.C. Code § 12-309, and that plaintiffs cannot demonstrate extreme and outrageous conduct. For the reasons that follow, the District's motion for summary judgment will be granted.
The background facts have already been well-documented in the Court's prior opinion. The most relevant facts are set forth here. Plaintiffs Sergeant Wesley Hamilton and Investigator Joseph Mitchell were members of DCFEMS's Fire/Arson Investigation Unit. See Hamilton, 720 F. Supp. 2d at 106. On October 17, 2004 they investigated a fire at 3318 Prospect Street, NW, Washington, DC. Id. Subsequent to plaintiffs' investigation of the fire, allegations were made that they had improperly conducted the investigation and thus reached an erroneous conclusion as to the cause of the fire, and had lied to supervisors about their conduct. Id. These allegations were communicated to the U.S. Attorney's Office for the District of Columbia. On November 10, 2004, the U.S. Attorney's Office notified DCFEMS that it would not sponsor plaintiffs' testimony in future arson cases unless DCFEMS could clear up the allegations. Id. DCFEMS did not provide exculpatory evidence to the U.S. Attorney's office and plaintiffs' names were placed on the "Lewis list," which prevented plaintiffs from testifying on behalf of the government in criminal cases. Plaintiffs were thereafter transferred to other units within DCFEMS into what they characterize as lower status positions that were less well paid. Id.; Hamilton Dep., Pl.'s Ex. 1 at 30-32.
In December 2004, DCFEMS brought disciplinary charges against plaintiffs, claiming that they failed to follow protocol and procedures while conducting the Prospect Street fire investigation. Hamilton, 720 F. Supp. 2d at 106. After an investigation lasting more than a year, the DCFEMS Trial Board found plaintiffs not guilty of all charges. Id. Plaintiffs were notified of the Trial Board's conclusions on January 9, 2006. Id. Plaintiffs subsequently made requests to the fire chief and the deputy fire chief (Gary Palmer) to be reinstated to the fire investigations unit, but their requests were either ignored or denied. Hamilton Dep., Def. Ex. 1 at 43:17-19, 45-47; Mitchell Dep., Def. Ex. 3 at 39:9-11. They then made the same request via their attorney to DCFEMS General Counsel, who responded in a letter dated May 30, 2006 that DCFEMS had no control over the Lewis list and that plaintiffs could not be reinstated unless they succeeded in getting their names removed from the Lewis list. Pls.'s Ex. 6. As of May 2009, when plaintiffs filed their complaint, their names remained on the Lewis list. Hamilton, 720 F. Supp. 2d at 106.
On July 6, 2010, the Court dismissed DCFEMS from the action, and dismissed the § 1985(3) claim against the District. It denied the motion to dismiss as to the § 1981 and § 1983 claims, and the IIED claim. Following discovery, the District now moves for summary judgment on those claims.
Summary judgment is appropriate when the pleadings and the evidence demonstrate that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion by identifying those portions of "the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of motion only), admissions, interrogatory answers, or other materials," which it believes demonstrate the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c)(1).
In determining whether there exists a genuine dispute of material fact sufficient to preclude summary judgment, the court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than the "mere existence of a scintilla of evidence" in support of its position. Id. at 252. By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322. Moreover, "if the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249--50 (citations omitted). Summary judgment, then, is appropriate if the non-movant fails to offer "evidence on which the jury could reasonably find for the [non-movant]." Id. at 252.
I.Plaintiffs'§ 1981 and § 1983 Claims
The District argues that plaintiffs' § 1981 and § 1983 claims are barred by the statute of limitations. The parties disagree over the applicable statute of limitations, as well as the accrual date for plaintiffs' claims.
State law governs the applicable statute of limitations for plaintiffs' § 1983 claim. Banks v. Chesapeake & Potomac Tele. Co., 802 F.2d 1416, 1418-21 (D.C. Cir. 1986). In the District of Columbia, the applicable statute of limitations is three years. See Camey v. Am. Univ., 151 F.3d 1090, 1096 (D.C. Cir. 1998) (three-year residual statute of limitations in D.C. Code § 12-301(8) applies to claims under § 1983). Before 1991, all claims under § 1981 were also subject to the forum state's period for personal injury claims. However, on December 1, 1990, Congress passed 42 U.S.C. § 1658, which created a standardized four-year statute of limitations for all civil actions "arising under an Act of Congress enacted after the date of the enactment of this section." This clause has been interpreted to mean that claims which are "made possible" by a post-1990 enactment, including the Civil Rights Act of 1991, are governed by § 1658's four-year statutory period. Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382-83 (2004). The Civil Rights Act of 1991 expanded the scope of § 1981 claims to include protecting the right to "make and enforce contracts" without respect to race. 42 U.S.C. § 1981(a). Because plaintiffs allege that the District "interfered with the performance of an existing contract . . . [and] denied the plaintiffs the benefits of their contract with the city," causing "a sever [sic] loss of pay and prestige," Pls.' Opp. at 12, their claims appropriately arise under the Civil Rights Act of 1991 and are therefore subject to the four-year statutory period provided for in § 1658. See Jones, 541 U.S. at 372; see also Graves v. District of Columbia, 777 F. Supp. 2d 109, 115-16 (D.D.C. 2011). The fact that plaintiffs must enforce their § 1981 claims through the remedy outlined in § 1983 does not change the effective statute of limitations period for the cause of action. Given the three- and four-year statute of limitations periods for the § 1983 and § 1981 claims respectively, any claims premised on discriminatory conduct occurring before May 11, 2006, for the § 1983 claims, and before May 11, 2005, for the § 1981 claims, are time-barred.
Plaintiffs' complaint and pleadings are rife with typographical and grammatical errors which make them difficult to follow. However, from what the Court can discern, it appears that plaintiffs refer to three actions as reflective of the alleged discriminatory conduct from which to measure the statute of limitations. In their complaint, plaintiffs allege that the District violated § 1981 and § 1983 when it initially removed plaintiffs from the Fire Investigation Unit in late 2004. Compl. && 26(c), 33. They also allege that the District discriminated against them when it subjected plaintiffs to repeated transfers. Id. && 21, 26(b), 34. Finally, the complaint also states that DCFEMS failed to reinstate plaintiffs as arson investigators after they were cleared of charges in 2006, and that DCFEMS failed to notify the U.S. Attorney's Office that the charges had been cleared and that plaintiffs should be removed from the Lewis list. Id. ¶ 21-22. Plaintiffs' opposition to the District's summary judgment motion focuses entirely on DCFEMS's failure to reinstate plaintiffs as arson investigators after they ...