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Vanessa Coleman v. District of Columbia

September 28, 2012




This action was filed by plaintiff Vanessa Coleman asserting claims against the District of Columbia, the chief of D.C.'s Fire and Emergency Medical Services (FEMS), Dennis Rubin in his official capacity, and the Assistant Fire Chief (AFC) Brian Lee in his individual capacity under 28 U.S.C. § 1983 for violations of her First, Fourth, and Fifth Amendment rights, and a common law claim for negligent hiring, training, and supervision. Docket No. 09-cv-50. Coleman subsequently filed an additional action naming only the District of Columbia as a defendant and asserting claims under Title VII of the Civil Rights Act of 1964 (Title VII) and D.C. Human Rights Act (D.C. HRA) for retaliation and hostile workplace. Docket No. 11-cv-1322. Several of plaintiff's initial claims were dismissed by this court in a December 7, 2011 Order granting defendant's motion for partial judgment on the pleadings, and the two cases were subsequently consolidated. [99, 100]. Now pending before this court is defendants' motion for summary judgment on all of plaintiff's remaining claims. For the reasons contained in this Memorandum Opinion, this Court GRANTS defendant's motion for summary judgment.


A.The Mount Pleasant Fire

Plaintiff, an African-American female, was a captain in FEMS*fn1 on March 12, 2008 when a fire broke out in a high-rise apartment building in the Mt. Pleasant neighborhood of Washington, D.C. See Pl. Br. at 2. The fire was one of the "largest in the Department's recent history, and drew a great deal of attention and criticism from the public." Pl. Br. at 3. The fire was apparently not adequately controlled by FEMS, and led to a total loss of the building as well as damage to a neighboring church. Pl. Br. at 2-3.

An internal FEMS dispute over plaintiff's role at the scene of the fire triggered the main events leading to this litigation. Plaintiff claims that upon arrival at the scene, she began a check of the basement as required by the department's standard operating guidelines before being interrupted by the operations commander at the scene, Battalion Fire Chief (BFC) John Lee, who diverted her away from the basement and towards the third floor. Pl. Br. at 2-3. Later, an investigation revealed that FEMS' failure to check the basement first had been fatal to the department's efforts to control the fire, which had in fact begun in the basement. Pl. Br. at 2; Defs. Br. at 4.

In the months following the fire, FEMS began investigating the failure. Plaintiff filed a series of memoranda to superiors, providing her side of the story, contesting her innocence of misconduct, explaining that John Lee's tactical error had caused the failure to control the fire, and requesting a formal investigation into the events. Pl. Br. at 3-4; Pl. Ex. 8, 11, 12; Defs. Ex. A-07, A-13, A-14. Plaintiff also aired some of these grievances publicly, through a "personal journal" posted on a blog, and a phone interview that aired on a radio station. Pl. Ex. 95 at 2.

On April 17, BFC John Lee cited the plaintiff for violating Article VII, Section 2 of the D.C. Fire and EMS Order Book for violating the Standard Operating Guide and "fail[ing] to ensure that the basement check was completed." Defs. Br. at 4; Defs. Ex. A-07; Pl. Ex. 8; see also Pl. Br. at 4. BFC Schaeffer offered to settle the charge against plaintiff with a written reprimand, but plaintiff declined this offer, and challenged the charges. Pl. Br. at 4; Defs. Br. at 4.

On April 25, BFC John Lee, whom plaintiff insists was responsible for the department's failure to control the Mount Pleasant fire, also received notice of an infraction for failing to "follow up with . . . [plaintiff's Engine Company] regarding the lack of a basement report . . .". Defs. Br. at 5; Defs. Ex. J. Like plaintiff, Lee was offered a settlement of an official reprimand. Defs. Br. at 5. Unlike plaintiff, however, he accepted the settlement. Defs. Br. at 5.

On May 19, plaintiff's challenge was heard by BFC James Kane. Pl. Br. at 4. On May 30, Kane found plaintiff guilty and recommended a 24-hour suspension. Defs. Br. at 4; Pl. Br. at 4.

Plaintiff reacted to all this by filing a series of memoranda and appeals in June and July contesting her innocence, complaining that the hearing before Kane was procedurally defective, and seeking reversal. Pl. Br. at 4-5; Pl. Ex. 23, 45, p. 12, 29, 30, 42; Defs. Ex. A-29, A-37, A-41. Several of these memos contained unusual language. In one, plaintiff purported to cite a superior,*fn2 claiming that he "ha[d] orchestrated a behavior of mutiny" and referred to a "conspiracy against her." Defs. Br. at 7 (citing Defs. Ex. A-33). Another complained that a "pursuit to diabolically cripple [her] professional career" had "become the primary agenda of [her] chief officials." Defs. Br. at 7 (citing Defs. Ex. A-25, A-26, A-28). The volume of these memoranda peaked when plaintiff filed six memoranda directed to a single officer (Chief Rubin) in the course of the single day -- behavior which plaintiff acknowledges "a supervisor could perhaps find . . . out of the ordinary." Pl. Br. at 29. On July 28, Fire Chief Rubin affirmed Kane's decision and the 24-hour suspension as penalty. Pl. Br. at 5; Pl. Ex. 42, pp. 28-30.

B.Fitness For Duty Evaluation, Insubordination, and Termination

On July 25, defendant and assistant chief Brian Lee ordered plaintiff to undergo a fitness for duty evaluation at the Police and Firefighters Clinic (PFC), with both psychological and physical components. Pl. Br. at 9; Pl. Ex. 44, 77. At her July 31 appointment, plaintiff declined to sign the waiver form requesting to speak first with counsel. Pl. Br. at 9. The Coordinator of Behavioral Health Services at PFC, Dr. Jacqueline Jackson, initially decided to place plaintiff on limited duty pending completion of her evaluation. However, Dr. Jackson apparently conferred with several officials, including defendant Lee, and then informed plaintiff that she would be placed on sick leave. Pl. Br. at 9; Defs. Ex. N.

Next, BFC Begley told plaintiff that she would be charged with insubordination for disobeying the order to undergo the fitness for duty evaluation. Pl. Br. at 9-10. Plaintiff submitted a memorandum to Chief Rubin defending her actions in disobeying the order, alleging that the order was retaliatory. Pl. Br. at 10; Pl. Ex. 31; Defs. Ex. A-42. Begley endorsed the memorandum, and charged plaintiff with insubordination. Pl. Br. at 10; Pl. Ex. 47.

On August 7, plaintiff returned for a rescheduled appointment to undergo the psychological component of her fitness for duty evaluation. This time, she signed the waiver form only after making alterations to it, and noting that she was submitting to the evaluation "under duress and under the threat of further retaliation or adverse personnel action." Pl. Br. at 10; Pl. Ex. 48. The attending psychologist informed plaintiff that PFC legal counsel would have to review the modified form before the evaluation was conducted, and sent plaintiff away. Pl. Br. at 10.

Later that month, plaintiff and her counsel met with defendant Lee and FEMS deputy general counsel, Thelma Chichester, to discuss the outstanding order to complete a fitness for duty evaluation and plaintiff's pending claims of discrimination. Pl. Br. at 10. The meeting resulted in an agreement, formalized in a September 3, 2008 memorandum by Ms. Chichester, that allowed plaintiff to return to work, referred plaintiff's complaints about racial and sex discrimination in FEMS to an outside EEO investigator, and promised to hold in abeyance both the order for plaintiff to undergo evaluation as well as any accompanying administrative action resulting from plaintiff's failure to comply with this order, pending resolution of plaintiff's EEO claims. Pl. Br. at 10.*fn3

The EEO investigation concluded with no action in late October. Pl. Br. at 15. Plaintiff began the process of filing a formal complaint with the D.C. Office of Human Rights on November 13. Defs. Br. at 11 (citing Pl. Ex. 73).

After the EEO investigation of plaintiff's complaints was concluded, plaintiff's obligations to complete the fitness for duty evaluation were no longer held in abeyance, and on November 20, plaintiff was informed that she was scheduled for a psychological evaluation on November 26. Pl. Br. at 11. On the morning of the appointment, plaintiff filed a complaint in D.C. Superior Court, seeking to enjoin defendants from compelling her to submit to a fitness for duty evaluation, and called the PFC to inform them she would not be able to appear for her appointment. Pl. Br. at 11.

On January 13, 2009 defendant Lee issued formal charges of insubordination against the plaintiff for challenging the order that she submit to a fitness for duty evaluation. Pl. Br. at 12.

In February, with charges pending, plaintiff was again ordered to report to the PFC for an evaluation. Pl. Br. at 12. On February 11, plaintiff attended the PFC appointment, signed the waiver without alteration, completed the written exam portion of her psychological evaluation. Pl. Br. at 12-13. Plaintiff returned on February 18 to complete the oral interview portion of the psychological evaluation, during which she informed the attending doctor, Dr. Morote, that she was at PFC under duress. Pl. Br. at 13. After hearing this statement, Morote stopped the interview, and requested that plaintiff submit a written statement clarifying her reasons for appearing at PFC. Pl. Br. at 13. On February 24, plaintiff submitted a statement in which she asserted that she was being forced to undergo an evaluation "in retaliation for raising concerns about a number of important issues within the department." Pl. Br. at 13 (quoting Pl. Ex. 34). Dr. Morote later wrote that she would be "unable to proceed" with the evaluation in light of plaintiff's written statement. Pl. Br. at 14 (quoting Pl. Ex. 71).

On March 11, plaintiff was further charged with insubordination for failing to complete the February 18 fitness for duty evaluation. Pl. Br. at 13.

In June and July 2009, a FEMS Trial Board was held concerning the charges of insubordination. The Trial Board concluded that plaintiff was guilty of insubordination for failing to complete the fitness for duty evaluations as ordered on July 31, 2008, and November 26, 2008. Pl. Br. at 43. The panel recommended that plaintiff be demoted two ranks, to Sergeant, and ordered (again) to submit to a fitness for duty evaluation or face termination. Pl. Br. at 15 (citing Pl. Ex. 88, pp. 171-72).

On June 26, 2009, plaintiff reported again to PFC for a psychological exam, where she was informed she would be terminated unless she stated that she was taking the psychological evaluation voluntarily. She refused to do so. Pl. Br. at 15.

In August, 2009, plaintiff was informed of yet another appointment for the psychological exam. Pl. Br. at 16. On August 25, 2009, plaintiff did not attend the appointment, and instead filed a motion for a temporary restraining order, seeking to enjoin the defendants from forcing her to take the evaluation. Pl. Br. at 16.

In September, plaintiff was notified that she had until October 1 to complete the exam or face termination. Plaintiff declined to do so, and on October 7, she was terminated. Pl. Br. at 17.

C.Other Alleged Protected Activities and Retaliatory Actions

Over this same period, plaintiff also composed and filed a number of other memoranda, complaints, and letters.

On January 19, 2007, plaintiff submitted a memorandum addressed to then interim Fire Chief Brian Lee reporting a FEMS paramedic providing substandard care. Pl. Br. at 5; Pl. Ex. 2; Defs. Ex. A-03.

In early 2007, plaintiff sent a letter to then D.C. Council-Chairman Vincent Gray and Mayor Adrian Fenty, complaining that FEMS engaged in race- and sex-based discrimination. Pl. Br. at 5; Pl. Ex. 1; Defs. Ex. A-01.*fn4 Plaintiff forwarded a copy of this letter to FEMS Diversity and EEO Program coordinator Detria Liles-Hutchinson. Pl. Br. at 5; Pl. Ex. 52.

In March 2007, plaintiff sent a letter to an EEO investigator complaining that her reassignments to and out of the fire prevention division at FEMS were made because of her race and sex. Pl. Br. at 5; Pl. Ex. 4. In August, she filed an intake questionnaire with the EEOC alleging the same, and plaintiff continued to provide additional information to an EEOC investigator regarding these allegations. Pl. Br. at 6.

Throughout 2008, plaintiff maintained a blog describing the race- and sex-based discrimination and harassment she had experienced and witnessed at FEMS.

On March 31, 2008, plaintiff submitted a memorandum to several superior officers, detailing an incident in which her radio transmissions were ignored. Pl. Br. at 3.

In April, 2008, plaintiff filed a grievance with her Union complaining about being forced to attend an EEO training class, and attributing this order to her race and sex and in retaliation for her previous orders. Pl. Br. at 6-7. She also filed a memorandum complaining of this order to attend the EEO training to Chief Rubin. Pl. Br. at 7.

In May, 2008, plaintiff filed a memorandum complaining that several previous reports placing disciplinary charges on subordinates had not been properly and timely acted upon by her superiors. Pl. Br. at 6.

Also in May, plaintiff sent a memorandum to Chief Rubin, complaining of an incident involving a firefighter violating the grooming policy, and her thwarted efforts to punish him. Pl. Br. at 7. In June, plaintiff was reprimanded for failing to enforce the grooming policy. Pl. Br. at 45.

In June, plaintiff sent numerous memoranda to Chief Rubin purporting to charge her superior officers with failing to timely process disciplinary charges she had filed against subordinates. Pl. Br. at 7. Plaintiff also sent other memoranda to Chief Rubin -- complaining about being forced to take her unit out of service while she worked on her report about the Mount Pleasant incident, and also about the discipline incident regarding the firefighter who violated the grooming policy. Pl. Br. at 7.

Also in June, plaintiff sent letters to D.C. Councilmembers, the Mayor, and Chief Rubin complaining that FEMS officials were retaliating against her for speaking out. Pl. Br. at 7

Still in June, plaintiff filed yet more memoranda to Chief Rubin complaining about superiors' failure to timely process her disciplinary charges, alleging racial discrimination as the cause of this failure. Pl. Br. at 8.

And, in June, plaintiff claims that defendants removed her ability to obtain case reference numbers necessary for tracking her disciplinary matters. Pl. Br. at 50; Pl. Ex. 33; Defs. Ex. A-48.

In July, plaintiff wrote another memorandum to Chief Rubin alleging that her superiors were selectively disciplining Black firefighters, but declining to support her efforts to discipline her own subordinates. Pl. Br. at 8.

On July 2, 2008, plaintiff alleges that her ability to cite superior officers was removed. Pl. Br. at 50.

On July 8, 2008, plaintiff was detailed from Engine Company 21 to the Facilities Maintenance Division of FEMS, where she was assigned "to count and catalogue chairs." Pl. Br. at 8.

On July 13, 2008, plaintiff was detailed to the facilities maintenance division away from her company. Pl. Br. at 50.

On July 21, 2008, plaintiff was ordered to attend EEO training. Pl. Br. at 50.

In February 2009, plaintiff filed charges with the D.C. Office of Human Rights and EEOC, disparate treatment, and retaliation. Pl. Br. at 8-9; Pl. Ex. 33; Defs. Ex. A-48.*fn5


For purposes of analysis, these events are best broken into substantive categories. Plaintiff's statements, filings, complaints, and letters may be broken down into the following seven categories:

(1) internal (FEMS) communications regarding the Mount Pleasant fire;

(2) internal communications protesting the fitness for duty evaluation and EEO training;

(3) internal communications complaining about incompetence, procedural violations, or poor performance of subordinate or superior officers;

(4) internal communications regarding race and sex-discrimination;

(5) legal action to enjoin the fitness for duty evaluation;

(6) legal and administrative filings, including judicial, EOC, and D.C. Office of Human Rights alleging discrimination;

(7) external statements regarding race and sex discrimination at FEMS.

The adverse employment actions taken by defendants against plaintiff can be broken into the following thirteen events:

(1) citation for failing to check basement at Mt. Pleasant fire (April 2008);

(2) offer of formal rebuke as settlement ...

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