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Dave v. District of Columbia Metropolitan Police Department

United States District Court, District of Columbia

November 9, 2012

Prateek DAVE, Plaintiff,

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David A. Branch, Law Office of David A. Branch and Associates, PLLC, Washington, DC, for Plaintiff.

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Denise J. Baker, Dwayne C. Jefferson, Steven J. Anderson, Office of the Attorney General for District of Columbia Civil Litigation, Washington, DC, for Defendant.





Plaintiff, Prateek Dave, is an Indian-American former cadet with the District of Columbia's Metropolitan Police Department (" MPD" ). He alleges that MPD failed to advance him and, ultimately, terminated his employment based on his race and national origin and in retaliation for his prior complaints of discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (" Title VII" ) and 42 U.S.C. § 1981. Additionally, plaintiff alleges that his termination violated the due process clause of the Fifth Amendment and 42 U.S.C. § 1983 because he was not given adequate notice or opportunity to be heard. Defendant, the District of Columbia, has moved for summary judgment. For the reasons set forth below, that motion is GRANTED in part, but the Court requires supplemental briefing concerning the liberty interest due process claim.


A. Factual Background

By letter dated September 15, 2004, MPD informed plaintiff that he had been selected for the position of Police Officer. The District of Columbia's Amended Motion for Summary Judgment (" MSJ" ) [Docket # 37], Exh. J. Plaintiff was explicitly informed that his first eighteen months would be served in a probationary status, during which his suitability for continued employment as a police officer would be assessed. Id. Additionally, plaintiff was informed that his appointment could be terminated with no rights to appeal. Id. Plaintiff accepted the offer and was assigned to recruit class 2004-8. MSJ, Exh. I.

fro the start, plaintiff had difficulty with the physical training. On October 5, 2004, he failed the assessment test for push-ups, sit-ups and the 1.5 mile run. MSJ, Exh. Q. He also failed some of his academic exams initially and on re-examination. MSJ, Exh. I.

On November 8, 2004, plaintiff was injured during physical training. MSJ, Exh. A (Plaintiff's Answers to Defendant's First Set of Interrogatories) at 2-3. Plaintiff alleges that, during a training exercise, Sergeant Timothy Desmond [1] pushed him down a steep and slippery hill, causing him to run down the hill into a parked vehicle resulting in severe injury to his shoulder. Id. Afterwards, plaintiff alleges that Sgt. Desmond asked him where he was from (which plaintiff interpreted as asking him what country he was from) and advised him not to let the class intimidate him (which plaintiff interpreted as he should not let his classmates intimidate him). See MSJ, Exh. B, Deposition of Prateek Dave (July 15, 2011)(" Depo. Vol. I" ) at 159-176. Plaintiff concluded that these statements were discriminatory and was offended by them. Id.

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Plaintiff claims that he complained about Sgt. Desmond's actions. Id. But it is unclear whether plaintiff complained that Sgt. Desmond's actions were discriminatory. See Depo. Vol. I at 172 (plaintiff submitted PD-119 form to Lieutenant Tommy Hayes but does indicate whether it contained allegations of discrimination); MSJ, Exh. C, Deposition of Prateek Dave (July 27, 2011) (" Depo. Vol. II" ) at 68-69 (plaintiff does not recollect whether the PD-119 referred to discrimination from Desmond), 70 (cannot recall whether he told Sgt. Jones that Desmond was racist); 90 (other than PD-119, plaintiff did not complain about Desmond's discrimination but cannot recall what he put in the document), 144-45 (plaintiff does not recollect telling anyone that Desmond discriminated against him, either verbally, in exhibit 154, or in the PD-119), 147-48 (plaintiff may have told Sgt. Jones, but maybe not). This is not an insubstantial issue. Plaintiff has based a large part of his claims on alleged retaliation. But he has not clearly demonstrated that he engaged in protected activities by complaining about discrimination. Without having engaged in protected activity, there can be no actionable retaliation claims. Regardless, because the parties have not raised or briefed this issue, for purposes of resolving this motion, the Court will assume without deciding that plaintiff engaged in protected activity.

Subsequent to his shoulder injury, plaintiff was placed on limited duty for a period of time. Depo. Vol. II at 98. Plaintiff does not challenge the basis of that decision. Id. He acknowledges that the decision was based on medical opinions and does not allege that any of the individuals he claimed discriminated against him had any influence on the process. Id. at 106-109, 177. But while plaintiff was on limited duty related to his shoulder injury, his classmates continued to progress with their training. Id. at 130-33. Thus, by the time plaintiff had returned to full duty status, his classmates had completed many of the training modules plaintiff had not, and the training class had graduated and plaintiff had to be sent to another class. Id.

Subsequent to being returned to full duty, plaintiff failed two physical training tests. Id. at 155-156; see also MSJ, Exh. Q. A third failure would have resulted in termination. Id. Although plaintiff was scheduled to take the third physical test, he did not do so because he developed asthma. Id. Based on plaintiff's doctor's recommendation (Dr. Varma), plaintiff was again placed on limited duty. Id. at 204-205. This again resulted in plaintiff falling behind his classmates with respect to physical training. Id. at 211-213.

As a result of his asthma, plaintiff received treatment from Dr. Michael Tsun, M.D. at Northern Virginia Pulmonary and Critical Care Associates. MSJ, Exh. F (Declaration of Michael Tsun, M.D.)(" Tsun Decl." ) at ¶ 3. Because of that treatment, on July 21, 2006, Dr. Tsun provided plaintiff with a handwritten note for hand-delivery to the Police and Fire Clinic Associates. Tsun Decl. at ¶ 5. That note stated that plaintiff could go back to full duty, however, Dr. Tsun preferred that plaintiff work indoors if air quality was code orange or red. Id.; MSJ, Exh. H at DC 31.

Martin Rosenthal, M.D., is a physician at the Police and Fire Clinic Associates, LLC. MSJ, Exh. D (Declaration of Martin Rosenthal, M.D.) (" Rosenthal Decl." ) at ¶ 2. In that capacity he provides occupational health services to sworn members of MPD, including plaintiff. Id. Due to his asthma, plaintiff had been on non-performance of duty status that prevented him from performing the full duties of an MPD cadet from February 1, 2006 through August 2, 2006. Id. at ¶ 4. On August 1,

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2006, Dr. Rosenthal received a hand-written note from Dr. Tsun indicating that plaintiff could return to full duty status. Id. at ¶ 5. Dr. Rosenthal signed the document he received. Id.; MSJ, Exh. H at DC 32. Dr. Rosenthal believed the document appeared altered because there were large gaps between numerous words in the document. Id.

The next day, on August 1, 2006, plaintiff saw Michelle Smith Jefferies, M.D., a consultant at the Police and Fire Clinic, for an Initial Disability Evaluation pertaining to his asthma. MSJ, Exh. E (Declaration of Michelle Smith-Jefferies, M.D.)(" Jefferies Decl." ) at ¶¶ 3-6. As part of this evaluation, Dr. Jefferies examined the note from Dr. Tsun. Id. at ¶¶ 6-8. Dr. Jefferies also considered the note suspicious and obtained plaintiff's consent to talk directly to Dr. Tsun. Id. Immediately after the evaluation, Dr. Jefferies telephoned Dr. Tsun who read the contents of the note he wrote to Dr. Jefferies. Id. at ¶ 9. Dr. Tsun also faxed a copy of the note he wrote to Dr. Jefferies which included the restrictions set forth above. Id. Dr. Jefferies also spoke to Dr. Rosenthal and confirmed that the note had not been altered between the time he accepted delivery the previous day and the evaluation. Id. Based on her strong suspicion that plaintiff had altered Dr. Tsun's handwritten note in an attempt to return to full duty, Dr. Jefferies submitted both versions of Dr. Tsun's handwritten note and a memorandum detailing what had taken place to Captain Michael Eldridge, MPD's Director of the Medical Services Section, for further review. Id. at ¶ 10; MSJ, Exh. H at DC 19.

As a result of the referral from Dr. Jefferies, MPD initiated an investigation concerning the allegation that plaintiff presented a falsified medical record to the doctors at the Police and Fire Clinic in an effort to maintain his employment. MSJ, Exh. H at DC 10-34. During the investigation, plaintiff denied he altered the document. Id. at DC 20-21. He stated then (and through this litigation) that he provided the Police and Fire Clinic the handwritten note that Dr. Tsun's office provided to him. Id.; Depo. Vol. II at 241-245.[2] Drs. Rosenthal and Jefferies cooperated with the investigation. Rosenthal Decl. at ¶ 8; Jefferies Decl. at ¶ 11. In the investigative report, Lieutenant Hayes concluded that plaintiff altered the document and recommended that he be cited for Adverse Action consistent with MPD guidelines. MSJ, Exh. H at DC 15. By letter dated September 19, 2006, the Director of MPD's Institute of Police Science concurred in the report's findings and recommended that plaintiff be terminated on the basis of the altered record. Id. at DC 11. On September 21, 2006, that recommendation was concurred with and forwarded to the Chief of Police. Id. at DC 10. By letter dated September 26, 2006 (served September 27, 2006), Chief of Police Ramsey notified plaintiff that he was terminated effective October 13, 2006. Id. at DC 2 & 7. The letter gave no reason for the termination. Id.

B. Procedural History

On October 23, 2006, plaintiff submitted an administrative complaint to the District of Columbia's Office of Human Rights. MSJ, Exh. L at DC 2-10. In it, he complained about race and disability discrimination concerning his discharge

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and discipline. Id. More specifically, plaintiff complained about his shoulder injury making him unable to properly do push-ups and being failed on that basis. Id. Plaintiff further complained that he was not given proper training and, after developing asthma, he was terminated because he could not perform his police duties. Id. By letter dated October 25, 2006, the Office of Human Rights informed plaintiff that his administrative complaint had been dismissed for failure to state a claim upon which relief may be granted. Id. at DC 1.

On March 13, 2007, plaintiff submitted an intake questionnaire to the Equal Employment Opportunity Commission (" EEOC" ). Plaintiff's Memorandum of Points and Authorities in Opposition to Defendant's Amended Motion for Summary Judgment [Docket # 42] (" Opposition" ), Exh. B. In that Questionnaire, plaintiff asserted race and disability discrimination concerning lack of training and his termination. Id. On May 25, 2007, plaintiff submitted a Charge of Discrimination to the EEOC. Opposition, Exh. C. In that Charge, however, he only alleged disability discrimination. Id.

Plaintiff filed the current action on May 19, 2008. After plaintiff received a full and fair opportunity to take discovery, defendant moved for summary judgment. For the reasons set forth below, that motion will be granted in part.


Summary judgment may be granted when " 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). A fact is " material" if it is capable of affecting the substantive outcome of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is " genuine" if sufficient evidence exists such that a reasonable jury could return a verdict for the non-moving party. See Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).

The principal purpose of summary judgment is to streamline litigation by disposing of factually unsupported claims or defenses and determining whether there is a genuine need for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the initial responsibility of identifying those portions of the record which demonstrate the absence of any genuine issue of material fact. Id. at 323, 106 S.Ct. 2548; Fed.R.Civ.P. 56(c)(1)(A) (noting that the movant may cite to " depositions, documents, electronically stored information, affidavits or declarations, ... admissions, interrogatory answers, or other materials" ). In response, the non-moving party must similarly designate specific facts in the record that reveal a genuine issue that is suitable for trial. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. On a motion for summary judgment, the court must " eschew making credibility determinations or weighing the evidence," Czekalski v. Peters, 475 F.3d 360, 363 (D.C.Cir.2007), and all underlying facts and inferences must be analyzed in the light most favorable to the non-moving party, Anderson, 477 U.S. at 255, 106 S.Ct. 2505. Nevertheless, conclusory assertions offered without any evidentiary support do not establish a genuine issue for trial. Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999).


Plaintiff alleges that MPD failed to advance him and, ultimately, terminated his employment ...

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