The opinion of the court was delivered by: Alan Kay United States Magistrate Judge
Plaintiff Sonya Owens ("Owens" or "Plaintiff") brings this Motion for Summary Judgment  against Defendants District of Columbia and Adrian Fenty ("Defendants"). Defendants oppose Plaintiff's Motion and make a Cross-Motion for Summary Judgment . This Memorandum Opinion corresponds with the Order filed on June 26, 2012. For the reasons set forth below, Plaintiff's Motion was denied and Defendants' Motion will be granted-in-part and denied-in-part.
Plaintiff is a former captain with the District of Columbia Metropolitan Police Department ("MPD") whose employment was terminated in October 2005. On August 31, 2005, prior to being terminated, Plaintiff filed a complaint in this Court alleging retaliation under 42 U.S.C. § 1981 and various claims under the D.C. Human Rights Act, D.C.Code § 2-1402.11 and § 2-1402.61(a), (c).*fn1 The parties went to trial before the undersigned on those claims, resulting in a jury verdict for Defendants. See Owens v. Dist. of Columbia ("Owens I"), No. 05-CV-1729 (D.D.C. filed Aug. 31, 2005).
Plaintiff filed her complaint in this case on November 25, 2008 and the case was assigned to Judge Huvelle. Plaintiff amended her complaint , alleging seven claims: Count One: deprivation of civil rights in violation of 42 U.S.C. § 1983; Count Two: deprivation and retaliation under the False Claims Act's protections for whistleblowers; Count Three: violation of employment rights and privileges under the District of Columbia Comprehensive Merit Personnel Act ("CMPA"), D.C.Code § 1-601.01 et al.; Count Four: retaliation under 42 U.S.C. § 1981; Count Five: defamation; Count Six: 18 U.S.C. § 241; Count Seven: 18 U.S.C. § 242. (Am. Compl. ¶¶ 88-161.)
Defendants filed a Motion to Dismiss  all counts of the Amended Complaint and to dismiss former Mayor Adrian Fenty ("Mayor Fenty") from the lawsuit. (Defs.' Mot. to Dismiss at 8-16.) Defendants argued that Plaintiff's claims in Owens II were barred by res judicata based on the jury's verdict in Owens I and that any new claims in Owens II could have been brought in Owens I. (Id. at 9-14.)
Judge Huvelle issued an Order  on the motion to dismiss on July 6, 2009. Judge Huvelle granted Defendants' Motion to Dismiss as to Count Two, Count Six and Count Seven and denied Defendants' Motion on the remainder of the claims and as to Mayor Fenty. She discussed res judicata in the accompanying Memorandum Opinion, stating: "paragraphs 2 through 64 of the instant complaint are virtually identical to allegations found in the Owens I complaint's statement of facts." (Italics omitted) (Judge Huvelle's Mem. Opinion, July 6, 2009 at 10.) Judge Huvelle held that any reliance on the factual allegations in paragraphs 3 through 64 are barred by res judicata because claims stemming from those facts could and should have been brought in Owens I. (Id. at 11.) However, other claims, including those "stemming from Plaintiff's termination from MPD and her efforts to administratively appeal that termination" could not have been raised in Owens I and therefore are not barred by res judicata. (Id.)
On August 13, 2009, the parties consented to the case being handled by Magistrate Judge Kay for all purposes and trial. (Consent .) Defendants filed a Motion for Summary Judgment  ("Defendants' First Motion for Summary Judgment") as to the remaining claims and the status of Mayor Fenty as a Defendant. Defendants made a number of arguments in support of their Motion. First, they argued Plaintiff's claims do not allege a due process violation because they are based on alleged violations of procedure. (Defs.' First Mot. for Summary Judgment at 8-9.) Second, Defendants argued that Plaintiff failed to exhaust her administrative remedies as required by the CMPA because she appealed the Office of Employee Appeals ("OEA") Initial Decision to the OEA Board, but she dropped the appeal before a determination was made. (Id. at 9-10.) Finally, Defendants asserted that Mayor Fenty should be dismissed from the lawsuit. (Id. at 11-12.)
The undersigned denied Defendants First Motion for Summary Judgment. (Judge Kay's Mem. Opinion, Nov. 8, 2010 .) The undersigned stated that Plaintiff alleges more than simply violations of procedure; namely, that Defendants retaliated against Plaintiff and deprived her of employment rights following her termination. (Id. at 6.) The undersigned held that a genuine dispute of material fact exists regarding whether Plaintiff exhausted her administrative remedies and relied on Judge Huvelle's conclusion that "the complaint states facts which, if true, could support a finding of exhaustion . . . ." (Id. at 5; Judge Huvelle's Mem. Opinion, July 6, 2009 at 13.) Finally, the undersigned noted that Judge Huvelle did not dismiss Mayor Fenty as a defendant, and "decline[d] to disturb that ruling. . . ." (Judge Kay's Mem. Opinion, Nov. 8, 2010 at 4.)
Plaintiff's remaining claims include: Count One: deprivation of civil rights under the First, Fifth and Fourteenth Amendments, 42 U.S.C. § 1983; Count Three: violation of employment rights and privileges under the District of Columbia Comprehensive Merit Personnel Act ("CMPA"), D.C.Code § 1-601.01 et al.; Count Four: retaliation under 42 U.S.C. § 1981; and Count Five: defamation.
Under Federal Rules of Civil Procedure 56, summary judgment is appropriate where the documents in the record show 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), (c). The moving party is responsible for informing the court of the basis for its motion and identifying portions of the record that demonstrate the absence of any genuine dispute of a material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To be material, a fact must affect the outcome of the case and relate to the substantive law governing the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505 (1986).
In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the non-moving party's favor and accept the nonmoving party's evidence as true.
Anderson, 477 U.S. at 252. The non-moving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. The non-moving party must establish "sufficient evidence" to favor the jury returning a verdict for ...