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Martin Freeman, et al v. District of Columbia

November 15, 2012

MARTIN FREEMAN, ET AL., APPELLANTS/CROSS-APPELLEES,
v.
DISTRICT OF COLUMBIA, APPELLEE/CROSS-APPELLANT.



Appeal from the Superior Court of the District of Columbia (CAB-2153-05) (Hon. Judith E. Retchin, Motions Judge; Hon. A. Franklin Burgess, Jr., Trial Judge)

The opinion of the court was delivered by: Glickman, Associate Judge:

(Argued April 12, 2012

Before GLICKMAN and EASTERLY, Associate Judges, and EPSTEIN, Associate Judge of the Superior Court.*fn1

Appellants/cross-appellees, eight Metropolitan Police Department ("MPD") officers,*fn1 brought suit in Superior Court under the District of Columbia Whistleblower Protection Act ("DCWPA").*fn2 Appellants‟ whistleblower claims arose out of their ultimately unsuccessful efforts to secure off-duty employment as security guards at the then newly opened Gallery Place mall in downtown Washington, D.C. Appellants needed to obtain the MPD‟s permission to engage in such off-duty work. The MPD granted this permission to about half of the officers, but in the end, Gallery Place contracted directly with the MPD to provide officers to staff a security detail there. Appellants complained to the Chief of Police and the Mayor that the MPD had acted illegally in obtaining the contract for itself and thereby depriving them of the lucrative mall security employment. In their lawsuit, appellants alleged that the MPD and then Commander (now Chief of Police) Cathy Lanier violated the DCWPA by disciplining or threatening to discipline them in retaliation for their protected disclosure of the MPD‟s illegal conduct.

The trial court granted summary judgment for the District against five of the eight plaintiffs and allowed the whistleblower claims of the remaining three, Officers Freeman, Fowler, and McLaughlin, to proceed to trial against the District. The jury found for McLaughlin and awarded him $12,665 in back pay and non-economic damages, but found against Freeman and Fowler on the grounds that the MPD took disciplinary action against them for "legitimate, independent reasons." The court denied the District‟s post-trial motion for judgment on McLaughlin‟s claim notwithstanding the verdict and awarded attorney‟s fees to McLaughlin as a prevailing party.

The officers appealed, and the District cross-appealed. Appellants contend that the trial court erred in disposing of the whistleblower claims of Officers Robin, Groom, Anderson, Williams, and Dean on summary judgment and in dismissing Commander Lanier as a defendant in the litigation. In addition, appellants challenge several of the court‟s rulings during trial. For its part, the District argues that the trial court should have granted its post-trial motion for judgment as a matter of law because McLaughlin (the only plaintiff who prevailed at trial) lacked a reasonable basis for believing that the MPD had engaged in the putatively illegal conduct of which it had been accused.

We agree with the District that McLaughlin failed as a matter of law to establish a valid claim under the DCWPA. The District therefore was entitled to judgment notwithstanding the jury‟s verdict in McLaughlin‟s favor. In all other respects, we uphold the challenged rulings of the trial court. Consequently, we vacate the judgment for McLaughlin and remand for entry of judgment for the District.

I. Factual Background of Appellants' Lawsuit

A. The Opening of an Investigation into Unauthorized Off-Duty Employment and "Brokering"

In October 2004, Officers Martin Freeman, Duane Fowler, Sean McLaughlin, and Billy Robin submitted to their supervisor, Sergeant Raymond Chambers, the forms required to request authorization to perform compensated off-duty security guard work at the Gallery Place mall. Chambers signed off on the requests and forwarded the applications, which are referred to as "PD 180 packages," to Commander Lanier‟s administrative lieutenant, Ralph Ennis. The applications were not granted, however. Lieutenant Ennis recognized some of the officers‟ names from an internal police investigation of unauthorized off-duty work at another site, in which it was charged that Officer Freeman had been "brokering" the outside employment. "Brokering," which occurs when a police officer "acts as an intermediary, liaison, referral agent, consultant, or third-party provider of police-related outside employment between a current or potential outside employer and any other member of the Metropolitan Police Department for the purpose of scheduling, coordinating, or any other similar activity," is illegal and grounds for termination from the police force.*fn3 With the pending investigation in mind, Lieutenant Ennis inquired of the Gallery Place project manager, Mark Bing-Zaremba, and learned that Freeman had been scheduling other officers to work at Gallery Place before they had obtained the required MPD authorization to do so.*fn4

Ennis contacted Internal Affairs and initiated an investigation. Around the same time, Officers Robert Grooms, Theodore Anderson, Antonio Williams, and Hilliard Dean also submitted PD 180 packages to work at Gallery Place. Their applications were approved.

Sergeant Chambers was tasked with undertaking the initial investigation into the unauthorized off-duty work at Gallery Place. As part of that investigation, he obtained Bing-Zaremba‟s sworn statement that Officer Freeman had been paid "10% of payroll" to "have off-duty police work evenings at Gallery Place." Bing-Zaremba provided Chambers with an invoice from Freeman detailing the compensation due him and five other officers, including Officers Fowler, McLaughlin, and Robin, for work they had performed at the mall during the week of October 20 to 26, 2004. The invoice stated that Freeman also was owed a 10% "Security Consultant Fee." Chambers informed the four officers that they were being investigated for unauthorized work at Gallery Place and had each of them submit a sworn statement in writing. In their statements, the officers denied having worked at Gallery Place with the expectation of receiving payment; Officer Freeman stated that he had "volunteered" security services there.

Chambers completed his investigation on November 23, 2004. He concluded in his report that Freeman, Fowler, McLaughlin, and Robin had engaged in unauthorized off-duty work; that Freeman had engaged in brokering; and that all of the officers had responded untruthfully to his inquiries. The report eventually reached Commander Lanier‟s desk, and on December 14, 2004, she signed off on it. Two days later, on December 16, a cover letter was attached to the report and it was forwarded up the chain of command.

B. The MPD Provides Gallery Place with a Reimbursable Detail, and Appellants Complain

The day before Chambers completed his investigation, on November 22, 2004, the MPD started providing Gallery Place with security services via a "reimbursable detail" of police officers working overtime. In a reimbursable detail, because the officers are on-duty, the security work is coordinated and supervised by the MPD. The MPD pays the officers, and the private party reimburses the MPD at a fixed rate.*fn5 At trial, Bing-Zaremba explained that he had contacted the MPD and spoken to Commander Thomas McGuire to arrange for the reimbursable detail because he had been dissatisfied with the off-duty services that Gallery Place had been receiving. Commander McGuire confirmed Bing-Zaremba‟s testimony.

Freeman testified that Bing-Zaremba had told him a different story, however. According to Freeman, Bing-Zaremba said he was "getting a little antsy" because it was taking so long for the officers to be approved for off-duty work at Gallery Place, and the MPD had approached him to propose an alternative. Freeman learned that "Commander McGuire and Chief [Brian] Jordan at different times told [Bing-Zaremba] that it was in his best interest for him to hire [a reimbursable detail] instead of using . . . the police officers" and warned Bing-Zaremba that the off-duty officers were "not going to get approved" to work for him.

Freeman surmised that "the whole purpose of delaying the paperwork [the PD 180 packages] had nothing to do with [the brokering] investigation," but was a "stall tactic" to "force Mark Bing-Zaremba to choose the department at a higher rate." Ostensibly on the basis of this belief, the officers complained to their union, the Fraternal Order of Police ("FOP"). On December 14, 2004, an attorney retained by the union sent a letter addressed to the Mayor and the Claims Bureau in the District of Columbia Office of Risk Management, with copies to the Chief of Police and the Chair of the Committee on the Judiciary of the D.C. Council. The letter asserted a class action claim against the District of Columbia for monetary damages in excess of $15 million on behalf of "certain members" (Freeman being the only member identified) who allegedly had been "harmed" by the MPD‟s establishment of the reimbursable detail at Gallery Place and "countless others similarly situated." The letter charged that:

[i]nstead of processing the [PD 180 packages for officers who wanted to work at Gallery Place], which normally occurs over the course of a few days, the MPD engaged in tortious conduct designed to prevent the officers from securing the off-duty contracts, while at the same time, pressuring the Gallery Place to retain the MPD to provide the services through the use of overtime officers.*fn6

The MPD‟s actions, the letter claimed, "violate[d] the regulations governing the private employment of officers," specifically the prohibition against brokering outside employment, and tortiously interfered with the officers‟ "contractual relationships and prospective economic advantages."*fn7 On December 16, 2004, Freeman and the union chairman disclosed the contents of the letter on a local evening news television broadcast (FOX-5).

C. Subsequent Action on the Investigative Report and Imposition of Discipline

After Commander Lanier approved Sergeant Chambers‟s investigative report on December 14, the report was submitted to Assistant Chief William Ponton, the head of the MPD‟s Office of Professional Responsibility. Ponton reviewed the report; "made a number of notes that [he] put into a memorandum[;] and sent the investigation and those notes to the internal affairs division[, directing] them to review the investigation, conduct any additional investigation that might be necessary and to address the comments that [he] had made." Ponton also provided internal affairs with a copy of the December 14, 2004, letter from the attorney for the FOP complaining about the establishment of a reimbursable detail at Gallery Place. At trial Ponton explained that, in light of that letter, he considered it preferable to bring in the internal affairs division to conduct the follow-up investigation rather than "sending it back to the same chain of command to have the same people" do so.

In his transmittal memorandum to the internal affairs division, Ponton commented that, while "the invoice [furnished by Freeman to Bing-Zaremba] included as proof of employment may be sufficient to sustain an adverse action . . . , the best evidence in this case would be copies of the check issued as payment or a record clearly indicating the checks were issued and payment was made." Ponton therefore suggested that Gallery Place be asked to "provide actual proof of payment in order to provide stronger grounds to support the untruthful statements charges." Sergeant Anthony Langley, the internal affairs officer assigned to the investigation, met with Bing-Zaremba, who confirmed that he had sent Freeman a check in response to the invoice. Langley did not obtain the cancelled check itself, but he did get a copy of Gallery Place‟s records documenting its payment to Freeman on December 22, 2004, of the amount requested in the invoice.

After completing his work, Langley prepared a supplemental memorandum with additional exhibits to append to Sergeant Chambers‟s original report. Langley also inserted a paragraph summarizing his supplemental investigation in Chambers‟s report and added his new exhibits to Chambers‟s original list of attachments. Asked at trial about Langley‟s alteration of Chambers‟s report, Ponton testified that the "insertion of this paragraph, as stupid as it is . . . has no bearing on the facts that were contained in either investigative report."

The final report of the investigation submitted by Sergeant Langley was reviewed and approved by his superiors. Inspector Glenn Shearod submitted the report to Assistant Chief for Human Services Shannon Cockett with the recommendation that Officers Fowler, McLaughlin, and Robin be suspended for twenty-five days and that Officer Freeman be terminated from the police force. Assistant Chief Cockett approved the recommended suspensions. A three-member adverse action panel held an evidentiary hearing on Freeman‟s proposed discipline in September 2005 and agreed with the recommendation that his employment be terminated. Assistant Chief Cockett accepted that recommendation.

II. Discussion

A. The District of Columbia Whistleblower Protection Act

The DCWPA "provides a specific, burden-shifting structure for the litigation of whistleblower claims[, which] is likewise the standard by which a summary judgment disposition must be reviewed."*fn8 First, a District government employee must prove by a preponderance of the evidence "[1] that [he or she] made a protected disclosure, [2] that a supervisor retaliated or took or threatened to take a prohibited personnel action against [him or her], and [3] that [his or her] protected disclosure was a contributing factor to the retaliation or prohibited personnel action."*fn9 In pertinent part, for purposes of the present case, a "protected disclosure" means: any disclosure of information, not specifically prohibited by statute, by an employee to a supervisor or a public body that the employee reasonably believes evidences . . . [a]buse of authority in connection with the administration of a public program . . . [or a] violation of federal, state, or local law, rule or regulation . . . . *fn10
The eligibility of a disclosure for protection under the DCWPA thus "hinges not upon whether the [conduct] was ultimately determined to be illegal, but whether appellant reasonably believed it was illegal."*fn11 The term "prohibited personnel action" includes a termination or suspension of an employee for making a protected disclosure.*fn12 If the plaintiff makes the requisite showing, the burden shifts to the District to "prove by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in [protected] activities."*fn13 In construing the DCWPA, we have found it helpful to consider how its federal counterpart, 5 U.S.C. § 2302 (b)(8)(B) (2008), and similar state whistleblower laws have been interpreted.*fn14

B. Summary Judgment

The trial court granted the District‟s motion for summary judgment on the whistleblower claims of Officers Robin, Dean, Anderson, Williams, and Grooms.*fn15

Preliminarily, the motion required the court to determine what could have constituted a "protected disclosure" in this case. The court found that only the December 14, 2004, letter sent on appellants‟ behalf by their union attorney could serve as a protected disclosure. The FOX-5 broadcast two days later did not constitute a protected disclosure because it was not made to a "supervisor or a public body" as the DCWPA then required.*fn16 And because the broadcast disclosed the substance of the allegations to the public, the broadcast "thereby foreclose[d] future protected disclosures regarding the same topic."*fn17 As to the December 14 letter itself, the court found that appellants made a potentially protected disclosure in alleging that the MPD had acted illegally and contrary to applicable regulations when it offered its own detail to Gallery Place while delaying the processing of the officers‟ PD 180 applications to perform off-duty work there. Appellants do not challenge these threshold rulings; they attack the court‟s summary judgment determinations on other grounds, grounds that vary depending on the affected individual.

For its part, the District does not argue on appeal that the December 14 letter fails to disclose information evidencing the MPD‟s use of illegal strong-arm tactics to coerce Gallery Place into accepting and paying for a reimbursable detail. We therefore assume without deciding that the letter contains sufficient factual allegations of undue coercion, vague and conclusory though the allegations are, to qualify as a potentially protected disclosure.*fn18 Apart from any such allegations of strong-arm tactics, though, we agree that the December 14 letter would not have passed muster as a protected disclosure. In particular, the letter‟s claim that the statutory prohibition of brokering forbade MPD officials from arranging to provide a reimbursable detail to Gallery Place is plainly without merit. The statutory prohibition applies only to private brokering of off-duty ...


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