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Luanne Moran v. United States Capitol Police Board

August 20, 2012

LUANNE MORAN, PLAINTIFF,
v.
UNITED STATES CAPITOL POLICE BOARD, DEFENDANT.



The opinion of the court was delivered by: Amy Berman Jackson United States District Judge

MEMORANDUM OPINION

Plaintiff Luanne Lynn Moran brings this action against the United States Capitol Police Board ("USCP") under the Congressional Accountability Act of 1995, 2 U.S.C. § 1301, et seq. ("CAA"). In an earlier Order, this Court granted the USCP's motion to dismiss Counts I, II, IV, V, and VI of the first amended complaint, see Order [Dkt. # 29], leaving only Count III. The remaining count alleges that the USCP retaliated against Moran for engaging in protected activity in violation of section 1317(a) of the CAA. After the close of discovery, the USCP moved for summary judgment on the remaining count. [Dkt. # 34]. Because the Court concludes that plaintiff has not proffered sufficient evidence from which a reasonable jury could infer retaliation, it will grant defendant's motion.*fn1

I. BACKGROUND

The following facts are uncontested, except where noted. Moran's employment with the United States Capitol Police began on October 3, 1995. Dep. of Luanne Moran ("Moran Dep."), Ex. 1 to Def.'s Mot. for Summ. J. [Dkt. # 34-6] ("Def.'s Mot.") at 12. In September 1998, she was transferred to the Dignitary Protection Division ("DPD"), which is the unit responsible for protecting congressional leadership. Decl. of Luanne Moran ("Moran Decl."), Ex. 1 to Pl.'s Opp. to Def.'s Mot. [Dkt. # 35-1] ("Pl.'s Opp.") ¶ 1. In January 2005, Moran filed a complaint with the Office of Compliance ("OOC") alleging that the USCP engaged in discrimination on the basis of sex in assigning officers to the detail of the Speaker of the House Nancy Pelosi ("Speaker"). Id. ¶ 2. Eventually, the complaint was settled and Moran was assigned to the Speaker's detail. Id. ¶3.

A. Disciplinary actions against Moran

On September 4, 2008, Supervisor Special Agent ("SSA") Raymond Stonestreet -- one of Moran's supervisors -- began an investigation into four incidents of alleged misconduct by Moran.*fn2 See USCP Report of Investigation, Att. 1 to Ex. 5 to Def.'s Mot. ("Investigation Rep."), at 3. According to the report of the investigation and the command discipline report, the four incidents are as follows:

1. On July 18, 2008,*fn3 while driving in the Speaker's motorcade, Moran allegedly had an unwarranted confrontation with Detective ("Det.") Tim Atkinson of the Austin Police Department in which she criticized the way he handled an assignment with the USCP. Investigation Rep. at 11--13; Ex. 9 to Investigation Rep. For example, she told him "that [he] could have killed a person when [he] pulled into the arrival area because [he] did not operate slowly." Ex. 9 to Investigation Rep. This conduct allegedly brought discredit upon herself, impaired efficiency, and discredited the reputation of the department. Investigation Rep. at 13.

2. On the same day, Moran allegedly second-guessed another agent (SA Sean MacDougal) in the presence of the Speaker regarding the drive time to an appointment the next morning. Command Discipline Report, Ex. 4 to Def.'s Mot. ("Command Discipline Rep.") at 3. This allegedly embarrassed SA MacDougal and reflected unfavorably on him. Id.

3. On August 4, 2008, upon arrival of the Speaker and her detail at the Speaker's hotel in Boston, Moran stepped out of formation. Ex. 16 to Investigation Rep. at 1. This caused the Speaker to follow Moran through a different entrance than the one that had been prepared for her arrival. Id. This incident allegedly "eroded the confidence the Speaker has with the protective operation and at the same time jeopardized the safety of the Speaker."*fn4 Command Discipline Rep. at 3. SSA Stonestreet discussed this incident with Moran on August 14, 2008.*fn5 Ex. 16 to Investigation Rep. 4. On August 10, 2008, Moran again questioned SA MacDougall's assessment of motorcade routes and travel times in the presence of the Speaker. Command Discipline Rep. at 3. This allegedly confused the Speaker and embarrassed SA MacDougall. Ex. 16 to Investigation Rep. at 1--2.

Several written statements and declarations, attached to the report of investigation, supported these findings. Ex. 3, 6--7, 9, 16--18 to Investigation Rep. Defendant has also submitted declarations and transcripts of depositions of USCP employees who allegedly witnessed these events. Ex. 6--7 to Def.'s Mot. On August 14, 2008, SSA Stonestreet first approached Moran to talk about the third and fourth events. Moran Decl. ¶ 6. He subsequently left town for a protective assignment. and upon his return on September 4, 2008, he began a formal investigation. Investigation Rep. at 3.

On November 18, 2008, after the investigation into these incidents concluded, SSA Stonestreet wrote a CP-534 and forwarded it through Moran's chain of command, according to USCP policy. Command Discipline Rep; see USCP Operational Directive, Ex. 2 to Def.'s Mot. ("USCP Operational Directive I"). A CP-534 is the form used to record command discipline. USCP Operational Directive I at 2. Command discipline is the method that the USCP uses for documenting and adjudicating minor infractions that have not been, or may not be corrected through, training and/or counseling and may result in a loss of time or pay up to and including twenty-four hours. Id. The CP-534 charged Moran with "Conduct Unbecoming" and stated that Moran's "conduct during these incidents brings discredit upon herself, impairs efficiency, and discredits the reputation of the US Capitol Police." Command Discipline Rep. at 1, 3.

Lt. John Erickson, the section commander, signed off on SSA Stonestreet's report on November 24, 2008. Command Discipline Rep. at 2. On the same day, Captain George Hawco reviewed the charge and recommended a forfeiture of sixteen hours of pay, explaining, "SA Moran's conduct is very disturbing. . . . Such misconduct can impact [] protectee confidence in DPD, is counter to DPD training and operations, affects operational relationships with outside law enforcement agencies that support DPD, and most significantly -- can adversely impact DPD's core mission of protecting the Congressional Leadership." Id.

Moran filed an internal appeal, alleging that the report mischaracterized the incidents described in the CP-534. Memorandum of Appeal, Ex. 3 to Def.'s Mot. ("Mem. of Appeal"). As to the first incident, Moran claimed that she and Detective Atkinson had a "conversation (not an altercation)." Id. at 3. As to the third incident, she claimed "Sgt. Stonestreet said nothing to the Speaker to point her in the right direction" even though he knew that the speaker should have entered through a different door than the one she used. Id. And as to the second and fourth incidents, she claimed that she did not embarrass SA MacDougall regarding the morning departure times. Id.

Chief Morse denied the appeal. Command Discipline Rep. at 2. Defendants have submitted a declaration by Chief Morse that explains in detail why he credited the facts in the investigation. Morse Decl., Ex. 14 to Def.'s Mot. With respect to the first incident, he explained that "there was no question that an incident occurred between Detective Atkinson and SA Moran." Id. ¶ 8. With regard to the second incident, he explained that "SA Moran admitted in her appeal to questioning and countermanding SA MacDougall in front of the protectee" and "[a]lthough SA Moran stated she had no idea how this event embarrassed SA MacDougall, she did not provide facts in her appeal to demonstrate that she did not embarrass him." Id. ¶¶ 15--16. With regard to the third incident, he found that SA Moran was not in proper formation and that "there was no dispute that the protectee followed SA Moran" which resulted in her entering through a less secure door. Id. ¶¶ 10--13. Finally, with regard to the fourth incident, he noted that "there was a dispute between SA Moran and two other agents present (SSA Stonestreet and SA MacDougall) as to whether she had questioned SA MacDougall in front of the protectee again." Id. ¶ 17. But he found that "SA Moran inappropriately contradicted SA MacDougall in front of the protectee when she did not have all the facts" and that in her role, "SA Moran should have known the answer to the protectee's question about travel times and should have answered it. Instead she looked to SA MacDougal to answer the question." Id. ¶¶ 17--19.

B. Moran's complaints

Moran claims that the issuance of the CP-534 and the investigation leading up to it were actually conducted in reprisal for three complaints she had filed: the 2005 complaint to the OOC regarding sex discrimination in appointing officers to the Speaker's detail, as well as two complaints that she filed in 2008 with the Office of Professional Responsibility ("OPR"), the USCP's internal affairs office. Am. Compl. ¶¶ 117--26. Specifically, Moran filed the first complaint with OPR on August 5, 2008 after verbally complaining to Lt. John Erickson about a supervisor. Moran Decl. ¶ 4. The complaint identified four occasions when that supervisor made sexually-charged comments to and about female USCP employees, and also alleged that the supervisor did nothing when another agent complained about racial comments. Compl. Rep. (Aug. 5, 2008), Ex. 11 to Def.'s Mot. at 2. None of the alleged comments were directed to or about Moran, or were witnessed first-hand by Moran. Id. Moran's second complaint to OPR was filed on November 7, 2008. Compl. Rep. (Nov. 6, 2008), Ex. 12 to Def.'s Mot. It claimed that SSA Stonestreet, the supervisor that she had complained about, and a third agent were retaliating against her for filing the August 5 complaint. Id. at 2. Moran later rescinded this complaint.*fn6 Id. at 3.

C. This Action

Moran filed the first amended complaint in this action on January 15, 2010. [Dkt. # 2]. The Court granted defendant's motion to dismiss five of the six counts. [Dkt. # 29]. The remaining count, Count III, alleges that the CP-534 and resulting forfeiture of sixteen hours of pay, was issued in retaliation for three complaints, which she claims are protected activities under the CAA. Am. Compl. ¶¶ 117--126. Defendant has moved for summary judgment on this count. [Dkt. # 34].

II. STANDARD OF REVIEW

Summary judgment is appropriate "if the movant shows 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 informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat summary judgment, the non-moving party must "designate specific facts showing there is a genuine issue for trial." Id. at 324 (internal quotation marks omitted). The existence of a factual dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247--48 (1986). A dispute is "genuine" only if a reasonable fact-finder could find for the non-moving party; a fact is only "material" if it is capable of affecting the outcome of the litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987).

In assessing a party's motion, "[a]ll underlying facts and inferences are analyzed in the light most favorable to the non-moving party." N.S. ex rel. Stein v. District of Columbia, 709 F. Supp. 2d 57, 65 (D.D.C. 2010), citing Anderson, 477 U.S. at 247. The non-movant may not, however, rest upon the mere allegations or denials in its pleadings, but must instead establish more than "the mere existence of a scintilla of evidence" in support of its position. Anderson, 477 U.S. at 252. The court will "not accept bare conclusory allegations as fact." Taylor v. F.D.I.C., 132 F.3d 753, 763 (D.C. Cir. 1997); see also District Intown Props Ltd. P'ship v. District of Columbia, 198 F.3d 874, 878 (D.C. Cir. 1999) ("[T]he court must assume the truth of all statements proffered by the non-movant except for conclusory statements lacking any factual basis in the record.").

III. ANALYSIS

Under the CAA, it is unlawful for the USCP "to intimidate, take reprisal against, or otherwise discriminate against, any covered employee" because she "has opposed any practice made unlawful by this chapter, or because the employee has initiated proceedings, made a charge, or testified, assisted, or participated in any manner in a hearing or other proceedings under this chapter." 2 U.S.C. § 1317(a). These are, respectively, the "opposition" and "participation" clauses. Although the CAA contains its own retaliation provision, courts refer to the body of case law regarding discrimination under Title VII to evaluate claims of retaliation under the CAA.*fn7 Herbert v. Architect of Capitol, 766 F. Supp. 2d 59, 74 n.13 (D.D.C. 2011); see also 2 U.S.C. §§ 1302(a)(2), 1311(a)(1) (the CAA extends the protections of Title VII to the legislative branch). Accordingly, courts in this circuit apply the McDonnell Douglas framework. Herbert, 766 F. Supp. 2d at 74 n.14; see Forman v. Small, 271 F.3d 285, 299 (D.C. Cir. 2001) (explaining the McDonnell Douglas framework).

Under the McDonnell Douglas framework, plaintiffs first bear the burden of making a prima facie showing of retaliation. Id. Once that showing has been made, the burden shifts to the defendant to produce a "legitimate, nondiscriminatory reason" for its actions. Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009) (internal quotation marks and citations omitted). If the employer makes this showing, then "the burden-shifting framework disappears," Carter v. George Washington Univ., 387 F.3d 872, 878 (D.C. ...


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