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Emmette Mccormick, Jr v. the District of Columbia

October 22, 2012

EMMETTE MCCORMICK, JR., PLAINTIFF,
v.
THE DISTRICT OF COLUMBIA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: James S. GWIN,*fn1 United States District Judge:

OPINION & ORDER

[Resolving Doc. No. 57.]

In this long-running dispute, Plaintiff Emmette McCormick, Jr. says the District and individual defendants Wanda Patten and Devon Brown terminated his employment with the District of Columbia's Department of Corrections in violation of District of Columbia law and his Fifth Amendment rights. Defendants now seek summary judgment. They say that McCormick had no constitutionally-protected interest, that existing statutes provide adequate process for challenging a wrongful termination, that his termination was neither retaliatory nor wrongful, and that qualified immunity protects the individual defendants. Plaintiff McCormick opposes the motion because, he says, genuine disputes of material fact necessitate a jury trial. Because the Court finds that District statutes afforded McCormick adequate process, that the individual defendants are entitled to qualified immunity and that he has not shown that his discharge was retaliatory, the Court GRANTS Defendants' motion for summary judgment as to Counts I, II, III, IV, and V. Because the Court lacks jurisdiction over Plaintiff's wrongful discharge claim, the Court DISMISSES Count VI under Federal Rule of Civil Procedure 12(b)(1).

I. Facts

In March 2006, the District of Columbia Department of Corrections fired Plaintiff, Supervisory Correctional Officer Emmette McCormick. [Doc. 73 at 7.] McCormick says that the events leading to his termination began with two incidents in March 2005, one involving a leak by the Office of Internal Affairs and the other involving a crack cocaine seizure. He says that as a result of these events Internal Affairs retaliated and sought to have him fired. He says that while their initial attempts failed, Internal Affairs later succeeded based on his involvement in a third event in January 2006, where Internal Affairs found that McCormick struck a handcuffed inmate. Michael Tobias.

A. Leak Incident

McCormick says the chain of events that led to his termination began in March 2005, while he was serving as Acting Captain-in-Charge of the Special Management Unit. [Doc. 73 at 7.] Around this time then-Acting Warden of the Central Detention Facility, Larry Lee Corbett, received official notice that statements taken by then-Internal Affairs Investigator Defendant Wanda Patten in another case had been improperly released. [Doc. 73 at 10] The statements, given by two correctional officers, identified the two correctional officers as witnesses to an inmate's assault of a third correctional officer and contained their home addresses. [Doc. 73 10.] In an attempt to minimize the damage caused by this potentially-dangerous disclosure, Corbett ordered Plaintiff McCormick to search inmates' cells for copies of the Internal Affairs statements. [Doc. 73 at 10-11.] McCormick found unredacted copies of the statements in the cell of one inmate and prepared a report implicating Internal Affairs and Defendant Patten in the leak. [Doc. 73 at 7, 11.] He transmitted his report to Internal Affairs among others. [Doc. 73 at 11.]

B. Crack Cocaine Incident

McCormick says that Internal Affairs, disgruntled by his accusations, sought his termination in response. [Doc. 73 at 7.] Later in March, 2005, McCormick says he oversaw the seizure of crack cocaine from an inmate's cell. [Doc. 73 at 11.] He arrived after the seizure, examined the seized substance, tested it, and determined that it was crack cocaine. [Doc. 73 at 11-12.] He then directed the officer who had conducted the seizure to prepare a written report of the incident. [Doc. 73 at 12.] The officer's initial report said that the officer had seized the crack with the aid of a drug-sniffing dog. [Doc. 73at 12.] Subsequently, however, another officer informed McCormick that the dog only assisted the officers after the crack had already been seized. [Doc. 73at 12.] McCormick says he notified his superiors of this discrepancy and ordered the report corrected. [Doc. 73 at 12.] Shortly thereafter, he says Internal Affairs, under the direction of Defendant Patten, conducted an investigation into the changing of the report. [Doc. 73 at 12.] On June 9, 2005, Defendant Patten produced a report of her findings. [Doc. 73 at 12.]. On August 1, 2005, the then-Internal Affairs Chief transmitted the report to the Deputy Mayor with a recommendation to fire McCormick for some unexplained interference with the investigation of the arrest circumstances. [Doc. 73 at 12.] The Deputy Mayor declined, however, to follow the recommendation. [Doc. 73 at 12.]

C. Tobias Incident

While some details remain contested regarding the events immediately preceding Plaintiff's termination, the parties do not dispute the general chain of events. On January 13, 2006 a corrections officer mistakenly released a substantial number of inmates from their cells. [Doc. 73 at 13; Doc. 72 at 5.] Numerous correctional officers, including Plaintiff McCormick responded to order inmates back into their cells. [Doc. 73 at 13; Doc. 72 at 5.] McCormick alleges that while he worked to control the situation, an inmate on a higher floor threw water on him. [Doc. 73 at 13; Doc. 72 at 5.] Uncontradicted witness statements then say that McCormick ordered the inmate he believed responsible, Michael Tobias, to an area of the prison known as the "Sally Port." [Doc. 73 at 16; Doc. 72 at 6.] Some guard-witnesses gave statements testified that McCormick slapped handcuffed inmate Tobias while in the "Sally Port." Other guard-witnesses said they did not see, or were not in a position to see, McCormick strike Tobias. [Doc. 73 at 16--19; Doc. 72 at 6.]

D. Termination

As McCormick would have it, this would have been the end of this saga but for two intervening events, an investigation of the Tobias incident and his renewed efforts to implicate internal affairs in the leak incident. First, a woman representing herself to be a family member of Michael Tobias emailed a City Council member alleging that Plaintiff McCormick physically mistreated Tobias. [Doc. 73 at 1-2; Doc. 72 at 6.] That email eventually prompted an investigation of the Patten incident by Internal Affairs and overseen by Defendant Patten. [Doc. 73 at 1-2; Doc. 72 at 6.] During the investigation, Defendant Internal Affairs Investigator Patten took statements from numerous witnesses, but did not conduct an adversarial hearing. On March 9, 2006, the investigation culminated in a thirteen-page report, which concluded that "Lt. McCormick struck inmate Michael Tobias across the right side of his face with an open hand at least once while he was handcuffed in the sally port of the Southwest (3) housing unit on January 13, 2006." [Doc. 73-10.] McCormick vehemently contests this conclusion. [Doc. 73 at 26--29.]

Second, McCormick says that on February 13, 2006, while the investigation was taking place, he wrote to Defendant Corrections Director Brown, then recently-appointed as Director of the Department of Corrections, again alleging that Defendant Internal Affairs Investigator Patten was responsible for the leaked statements found in the inmate's cell in March 2005. [Doc. 73 at 31.] McCormick says that after Defendant Brown received this transmission, Defendant Patten relayed the allegations of the Tobias incident to Defendant Brown. [Doc. 73 at 31.] At that point, McCormick says, Corrections Director Brown ordered Internal Affairs to investigate the Tobias incident and placed McCormick on administrative leave. [Doc. 73 at 31.] McCormick's briefing gives no dates for these alleged events.

McCormick says that on the basis of Internal Affairs' report of the Tobias incident, Defendant Corrections Director Brown ordered McCormick fired for cause. [Doc. 73 at 20-21; 31.]

McCormick says that his termination coupled with the Internal Affairs report infringe his constitutionally protected liberty interests, violate DC whistleblower protections, and constitute common-law wrongful discharge. His constitutional claims proceed on two theories. Counts one and two allege that the District, and individual defendants, respectively, deprived McCormick of his constitutionally protected liberty interest in pursuing a career in corrections. [Doc. 3.] Counts three and four allege that his termination coupled with the threat of disclosure of information about the circumstances underlying his termination deprived him of a constitutionally protected liberty interest in his professional reputation. [Doc. 3.] McCormick also says that his termination violated the D.C. Whistleblower Statute, D.C. Code § 615.53(a) because protected disclosures-his reports on the leak incident--were a contributing factor to his termination. [Doc. 3.] Finally, McCormick says that the District wrongfully terminated him because of these disclosures. [Doc. 3.]

Defendants now move for summary judgment. First, they argue that Plaintiff has no liberty interest in continued employment because he was an at will employee and that his professional reputation was not defamed. [Doc. 72 at 9--32.] Second, they say that plaintiff did not exhaust administrative remedies under the DC Comprehensive Merit Personnel Act. Third, Defendants Devon Brown and Wanda Patten say they are qualifiedly immune. [Doc. 72 at 32--34.] Fourth, Defendants say that Plaintiff's alleged whistleblowing activities do not fall within the statute's protections. [Doc. 72 at 36--39.] Finally, Defendants say that ...


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