United States District Court, District of Columbia
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Richard E. Condit, Karen J. Gray, Government Accountability Project, Washington, DC, for Plaintiffs.
Steven J. Anderson, Patricia B. Donkor, Office of Attorney General for DC, Washington, DC, for Defendants.
BERYL A. HOWELL, District Judge.
The plaintiffs Gregory Bowyer and Gerald Pennington are two African American firefighters in the District of Columbia who bring this action against the defendants District of Columbia (" the District" ), Dennis L. Rubin, and Gary Palmer, Jr. under 42 U.S.C. § 1983 and the District of Columbia Whistleblower Protection Act, D.C. Code §§ 1-615.51, et seq. Common to all three of their claims is the plaintiffs' contention that the defendants retaliated against them for speaking out about a variety of issues within the District of Columbia Fire and Emergency Medical Services (" DCFEMS" ). Over the course of nearly two years, the plaintiffs allege that they complained within and outside the DCFEMS about what they believed was racial hostility and discrimination, the mishandling and subsequent cover-up of fire investigations, and general professional misconduct. The plaintiffs now claim that their complaints were met with swift and multifarious retaliation by the defendants in the form of disciplinary actions, removal of privileges and responsibilities, and other attempts to ostracize and isolate the plaintiffs from the rest of their unit. All three defendants have moved for summary judgment.
The plaintiffs are both " career firefighter[s] and fire investigator[s] currently employed by the DCFEMS." Compl. for Declaratory, Injunctive, & Monetary Relief &
Jury Demand (" Compl." ) ¶¶ 7-8, ECF No. 1. In particular, both of the plaintiffs worked for many years, beginning in 2001, as fire investigators in the Fire Investigations Unit (" FIU" ), id. ¶ 12, which is a specialized unit within the DCFEMS responsible for investigating the origins and causes of all fires that occur in the District, investigating arsons, and enforcing compliance with fire-related laws and regulations. 
All parties agree that from 2003 to 2007, the racial makeup of the FIU was 100% African American. Def. D.C.'s Statement of Undisputed Facts (" D.C. Facts" ) ¶ 8, ECF No. 49-1; Pls.' Statement of Disputed Facts in Response to D.C. (" Pls.' D.C. Facts" ) ¶ 8, ECF No. 55-1. In April 2007, defendant Rubin became the Fire Chief of DCFEMS, and Rubin promoted defendant Palmer to the position of Deputy Chief and Fire Marshal. D.C. Facts ¶ 9; Pls.' Mem. of P. & A. in Opp'n to Def. D.C.'s Mot. Summ. J. (" Pls.' D.C. Opp'n" ) at 2, ECF No. 55. The plaintiffs claim that defendant Rubin " implemented a race based policy under which he assigned more white personnel to the FIU to increase the percentage of white investigators." Pls.' D.C. Facts ¶ 9. To effectuate this policy, the plaintiffs claim that the defendants " relaxed the requirements and standards for promotion to the FIU in order to ensure the addition of the white candidates it assigned to the unit." Id. More particularly, the plaintiffs claim that " [n]one of the white firefighters whom the Department assigned to the [FIU] pursuant to this policy met the qualification requirements for membership in the [FIU]," and the white firefighters in the FIU " have failed portions of the written, physical, or psychological examinations required for assignment to the position of fire investigator." Compl. ¶ 13. With respect to the alleged relaxation of requirements and standards in the FIU, the plaintiffs claim specifically that the defendants (1) lowered the minimum number of years of experience required to become an investigator, from five years to three years; (2) increased the maximum allowable body fat percentage for fire investigators; (3) loosened the criminal background checks and psychiatric checks for new investigators; (4) changed the DCFEMS shift work and division to attract white candidates; (5) eliminated the formerly required 180-day investigator-training course and exam; and (6) assigned overtime disproportionately to white members of the FIU. Pls.' D.C. Opp'n at 36-37.
As a result of this alleged policy, the plaintiffs claim that the presence of African Americans in the FIU after 2007 dropped precipitously to 40%. See Compl. ¶ 15; see also Pls.' Ex. 19, ECF No. 55-2 (purporting to list " Active Members in DCFEMS FIU" ). The plaintiffs allege that " [t]he policy of assigning new personnel to the FIU was based solely on race," that " all of the supervisors in FIU are [now] white," and that, in addition to the racial composition, the defendants' alleged policy has " also resulted in a substantial decline in DCFEMS' ability to determine accurately the cause and origin of fires and to perform accurate follow-up investigations of potential arsons ... given the assignment of unqualified personnel [to] this unit." Compl. ¶ 15. It is this alleged
" assignment of unqualified [white] firefighters to important roles in FIU" and the resulting alleged " serious problems with fire investigations" that is the starting point for the events that are at issue in this case. See id. ¶¶ 16-17.
The plaintiffs eventually filed internal Equal Employment Opportunity (" EEO" ) complaints with the DCFEMS in June 2008 related to this alleged discriminatory policy, in which the plaintiffs complained of racial discrimination in the FIU, race-based assignments, and preferential treatment for white investigators. See id. ¶ 37; see also Pls.' Exs. 37-38, ECF No. 55-2. The plaintiffs also say that they repeatedly raised concerns to their superiors about the racial disparities within the FIU and the deleterious effects that the disparities were having upon fire investigations. See, e.g., Pls.' D.C. Opp'n at 18-19.
Beginning sometime in 2007, in addition to the explicitly race-based issues, the plaintiffs allege that they began raising concerns to their superiors about a broad range of other perceived improprieties within the DCFEMS, and the FIU in particular. See, e.g., Pls.' D.C. Opp'n at 18-26. The plaintiffs allege that they raised their concerns to " their direct supervisor Sergeant Phillip Proctor, Defendant Palmer, Defendant Rubin, and Assistant Fire Chief Brian Lee." Compl. ¶ 17. The Court will discuss in further detail the issues that arose within the FIU, how the plaintiffs say they spoke out about those issues, and the alleged retaliation that followed.
A. Alleged Misconduct Within the FIU
During 2006, a number of firefighters were temporarily detailed to the FIU, and DCFEMS hired two outside instructors to provide instruction on fire investigation to the newly detailed firefighters. Def. D.C.'s Supplemental Statement of Undisputed Facts (" D.C. Supp. Facts" ) ¶¶ 21-24, ECF No. 59-2. These outside instructors provided two weeks of instruction and administered an exam to the firefighters at the end of the two weeks. Id. ¶ 24. Sgt. Proctor also provided an additional week of training but decided not to administer any exam. Id. ¶ 25. Before deciding not to administer an exam, Sgt. Proctor inadvertently left a copy of an exam he planned to administer in a computer room printer, which was then obtained by a number of the detailed firefighters. Id. ¶ 26. After learning of this incident, Sgt. Proctor decided not to administer a test; informed his colleague, Lieutenant Robert Pearson, of the incident; and as a result Lt. Pearson administered a test to the detailed firefighters that differed from the one prepared by Sgt. Proctor. Id. The defendants maintain that, in addition to the fact that the administered test was different than the test obtained by the firefighters, the administered test also " had no bearing on whether these detailed firefighters would be admitted into FIU" and did not " affect[ ] the assignment or pay of the temporary fire investigators." Id. ¶¶ 27, 36. A subsequent internal investigation of the matter concluded that Sgt. Proctor did not assist the incoming fire investigators in cheating on the exam. Id. ¶ 34. Nevertheless, the plaintiffs say that they complained to defendant Palmer that Sgt. Proctor had " helped white candidates cheat on the examinations required to become fire investigators." Pls.' D.C. Opp'n at 4; Compl. ¶ 18.
In addition to the alleged cheating incident, the plaintiffs say that they complained to their superiors at the DCFEMS in 2007 about the conduct of Lieutenant Craig Duck, who was at that time the supervisor of the FIU. See Compl. ¶ 19. According to the plaintiffs, Lt. Duck was engaging in two separate types of misconduct. First, he was allegedly attempting to create a hostile work environment for African Americans in the FIU by referring
to the white investigators as his " team," reassigning follow-up investigations exclusively to these white investigators, and pressuring white investigators to stop associating with " Pennington's team," which the plaintiffs claim referred to the African American investigators. Id. ¶¶ 19-20. The plaintiffs allege that Lt. Duck's behavior " created an atmosphere of tension and mistrust within the FIU," which allegedly made it " nearly impossible for [the plaintiffs] to successfully complete the origin-and-cause investigations to which they were assigned." Id. ¶ 20. The plaintiffs specifically contend that they complained to Lt. Duck directly on September 28, 2007, about the preferential treatment being given to white investigators, but the plaintiffs allege that Lt. Duck " denied Plaintiffs' accusations, and the preferential treatment of white members of the FIU continued." Id. ¶ 21.
The plaintiffs also say that they complained about instances of what could be termed fraud, waste, or abuse by Lt. Duck. In June 2007, the plaintiffs allege that they complained to defendant Palmer, Sgt. Proctor, and Assistant Fire Chief Lee that " Lt. Duck was manipulating fire-investigation data and reports in order to justify the purchase of newer or fancier equipment, which he referred to as ‘ toys.’ " Compl. ¶ 29. The plaintiffs say that they reported that " Lt. Duck overstated the utilization of particular pieces of equipment in hopes of hastening their replacement." Id.; see also Pls.' D.C. Opp'n at 22 (contending that Lt. Duck " instruct[ed] subordinates to say that a tank of bottled air had been used for four hours when it had actually been used for ten minutes" and " list[ed] use of equipment that the unit never had" ).
B. Allegedly Mishandled Fire Investigations
The bulk of the plaintiffs' alleged complaints to their superiors centered on what they believe was a series of mishandled fire-related investigations from 2007-2008. As discussed above, the plaintiffs generally attribute these " botched" investigations to what they claim was a race-based policy of bringing in inexperienced and unqualified white firefighters to the FIU to conduct fire investigations. See Compl. ¶¶ 15-16; see also Pls.' D.C. Opp'n at 12.
1. Eastern Market Fire
The first and most high profile of these fire investigations began on April 30, 2007, when a three-alarm fire destroyed the butcher, bakery, and fishmonger stalls at the District's historic Eastern Market. Compl. ¶ 23. See generally Keith L. Alexander, Michelle Boorstein, & Allison Klein, Beloved Eastern Market, Library in Georgetown Ravaged by Fires, WASH. POST,, May 1, 2007, at A1. Lt. Duck assigned fire investigator Keith Byrd— whom the plaintiffs allege was " an inexperienced white investigator" — to lead the investigation. Compl. ¶ 23. Within 24 hours of the blaze, Chief Rubin commented to the press that " he was '90 percent' sure last night that the Eastern Market fire was accidental, probably caused by an electrical problem." Alexander, et al., supra; see also Compl. ¶ 23. Byrd subsequently issued a report that came to the same conclusion: the fire was an accident. Compl. ¶ 23.
The plaintiffs allege, however, that the DCFEMS " had evidence suggesting that a serial arsonist had intentionally set the Eastern Market fire," namely, the fact that the DCFEMS " had recently extinguished an unusually large number of fires set in dumpsters within a four-block radius of Eastern Market, including several dumpster fires on the same night as the Eastern Market fire." Id. ¶ 24. Furthermore, a report issued by the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (" ATF" ) in the months after the fire ruled out electrical causes. Id.
The plaintiffs allege that, after the ATF report was released, " Sgt. Proctor changed Mr. Byrd's original fire report from an electrical cause to an undetermined cause." Id. The plaintiffs believed that the fire was intentionally set, and they claim that Sgt. Proctor shared their belief but " directed them to keep quiet because Defendant Rubin had already told the media the fire's origin was electrical." Id. The plaintiffs also allege that a suspect in the Eastern Market fire was arrested in May 2007 but was never charged. Id. ¶ 25.
In December 2007, media reports indicated that the cause of the Eastern Market fire was still publicly considered a " continuing mystery," citing that ATF had ruled out electrical causes, the DCFEMS officially considered the cause " undetermined," and no evidence had surfaced of arson. See Elissa Silverman, Eastern Market Fire Still at Issue ATF, D.C. Fire Chief Disagree on Cause, WASH. POST,, Dec. 23, 2007, at C1. The plaintiffs allege, however, that their own investigation " led them to conclude the fire was caused by arson." Compl. ¶ 25. In the end, an eleven-month investigation into the Eastern Market fire in 2009, conducted by the DCFEMS and " other experts in the field of fire and forensic investigations" concluded that the fire was " a result of an electrical faulting of the outside electrical circuit supplying the trash compactor." See Gov't of the Dist. of Columbia, Fire & Emergency Servs. Dep't, Supplemental Fire Investigation Report 2 (Dec. 16, 2009), available at http:// www. washingtonpost. com/ wpsrv/ metro/ documents/ eastern marketfire. pdf. This 2009 report appears to have been the final word on the matter.
2. Permit and Fire Code Violations
While the Eastern Market fire investigation was ongoing, in late June or early July 2007, the plaintiffs say that they informed defendant Palmer that Sgt. Proctor " had engaged in misconduct during the inspection of a nightclub, the K St. Lounge, by allowing the business to avoid penalties for clear safety and permit violations." Compl. ¶ 29. The plaintiffs elaborate in their briefing that the nightclub was " being operated over capacity" and the plaintiffs say that, as a part of the " club zone taskforce," they " found numerous violations at the club, ultimately totaling $150,000 in fines." Pls.' D.C. Opp'n at 22. The plaintiffs further contend, however, that " [Sgt] Proctor's interference and conduct resulted in the owner paying reduced ... fines of $17,000." Id. After this incident, the plaintiffs were removed from the club zone task force. See Decl. of Gregory Bowyer (" Bowyer Decl." ) ¶ 18, ECF No. 55-2; Decl. of Gerald Pennington (" Pennington Decl." ) ¶ 22, ECF No. 55-2.
In June 2007, a third incident occurred that the plaintiffs believe was mishandled by the DCFEMS. The DC Fire Marshal's office received a complaint of illegal use of propane at the Barry Farm's Goodman-League basketball tournament in Southeast D.C. and sent the plaintiffs to investigate. See Pls.' D.C. Opp'n at 7; Pls.' Ex. 3, at 292-93, ECF No. 55-2. The plaintiffs documented that food vendors at the tournament were using propane tanks without the required permit and were using the tanks " in a very reckless and negligent manner" by storing the tanks " a couple of feet from gasoline in cans ... near children and civilians." Pls.' Ex. 3, at 293-94. Initially, the plaintiffs let the vendors off with a warning, notifying them that they needed to obtain the proper permits, but when they returned later, the plaintiffs claim that the same violations persisted. Id. at 294-95. The plaintiffs and the police officer accompanying them decided that arresting the event organizer was imprudent, given the atmosphere of the event, and they tried instead to get his information so that an arrest warrant could be
issued later. Id. at 297. When the event organizer refused to provide any information to the plaintiffs, Pennington " signal[ed] an alert that there was increasing tension as a result of the situation." Pls.' D.C. Opp'n at 7. What followed between plaintiff Bowyer and the event organizer remains unclear.
The next day, however, the event organizer made a formal complaint about plaintiff Bowyer to defendant Palmer, and Palmer instructed Bowyer to write a " detailed report, point by point, addressing the actions at Barry Farms Basketball tournament." See Pls.' Ex. 32, ECF No. 55-2; Pls.' D.C. Opp'n at 7. The plaintiffs also allege that, after the vendor filed this complaint, defendant Palmer " subject[ed] them to investigations by Internal Affairs and the Office of the Inspector General (‘ OIG’ )" and " caus[ed] a Metropolitan Police Department detective to issue a baseless warrant for Mr. Bowyer's arrest." Compl. ¶ 29. The plaintiffs allege that Bowyer later met with D.C. Councilmember Phil Mendelson " to discuss the Department's mishandling of the incident in its decision not to pursue an arrest warrant for [the event organizer] and to raise safety concerns about illegal propane tank usage at Barry Farms." Pls.' D.C. Opp'n at 8.
3. The Bridgewater Case
The next incident that the plaintiffs claim was mishandled began in July 2007 when a man named Timothy Bridgewater sold illegal fireworks to plaintiff Pennington. See D.C. Facts ¶¶ 11-12. A search of Bridgewater's vehicle uncovered illegal fireworks as well as a handgun, resulting in his arrest. Id. Although plaintiff Pennington believed that the owner of the fireworks stand should also be arrested because he had directed Pennington to Bridgewater to purchase the illegal fireworks, D.C. Assistant Attorney General (" AAG" ) Lynette Collins counseled against such an arrest because she did not believe there was sufficient probable cause. Id. ¶¶ 13-15. An FIU investigator named James Taylor " papered" the investigation with several documents, which included a series of photographs from the scene of the Bridgewater arrest taken by FIU Investigator Scott Ford and Firefighter Keith Byrd. Id. ¶¶ 17-18.  The documents collected by Taylor, however, did not include photographs taken by plaintiff Bowyer at the scene with his personal camera that showed that the firearm in Bridgewater's vehicle was located in a book bag in the rear seat of the vehicle. See D.C. Facts ¶ 19; Pls.' D.C. Facts ¶ 19.
According to AAG Collins, plaintiff Pennington expressed concerns to her about the way Investigator Taylor was handling the investigation, and Pennington later chose to recuse himself from the Bridgewater case " based on his belief that Taylor should not be involved." Decl. of Lynette Collins (" Collins Decl." ) ¶¶ 15-18, 21, ECF No. 49-2. The plaintiffs, however, maintain that Pennington wanted to recuse himself from testifying " because of the underlying merits in the case" and his concerns about " the integrity of the case." Pls.' D.C. Facts ¶ 21. In particular, the plaintiffs say they raised what they believed were a number of " holes in the case," id. ¶ 22, including: (1) the photographs taken by plaintiff Bowyer of the scene, using his personal camera, were
absent from the case file, see Pls.' Ex. 3, at 127; (2) there were discrepancies with the chain of custody for the handgun found in Bridgewater's car, see id. at 128; and (3) " the fireworks, cash and book bag in the case were missing from the evidence locker," Pls.' D.C. Facts ¶ 31.
The Assistant United States Attorney (" AUSA" ) assigned to prosecute Bridgewater, Matt Graves, eventually decided to dismiss the case. Collins Decl. ¶ 20; Pls.' D.C. Opp'n at 9. AAG Collins avers that AUSA Graves indicated to her that he decided to dismiss the charges against Bridgewater " because of infighting involving FIU investigator Pennington and the lack of cooperation between FIU investigators." Collins Decl. ¶ 22. The plaintiffs, however, contend that " it is highly likely that AUSA Graves dismissed the charges because of the holes in the case that Investigator Pennington brought to his attention." Pls.' D.C. Facts ¶ 22.
Despite the federal government's decision not to prosecute, the D.C. Office of the Attorney General (" OAG" ) decided to pursue criminal charges of its own against Bridgewater, and AAG Collins was assigned to prosecute the case. Collins Decl. ¶¶ 23-24. That trial began on February 20, 2008. Id. ¶ 27. AAG Collins avers that she was unaware of the photographs taken by plaintiff Bowyer on his personal camera at the scene of Bridgewater's arrest. Id. ¶ 39. The plaintiffs dispute this statement and contend that " AAG Collins was aware of the existence of Plaintiff Bowyer's photographs but was attempting to prosecute the Bridgewater case without this evidence." Pls.' D.C. Facts ¶ 29.  Regardless, in a pretrial hearing in the Bridgewater case, defense counsel notified the court that the government had failed to disclose the photographs taken by plaintiff Bowyer. Collins Decl. ¶ 34. AAG Collins avers that, in a break during this same pretrial hearing, plaintiff Bowyer " disclosed to [her], for the first time, that he had used his personal camera to take photos of the scene of the Bridgewater offense." Id. ¶ 42. The photographs were turned over to defense counsel, but the court also conducted a hearing on the issue of the photographs. See id. ¶¶ 43, 45. At the hearing, plaintiff Bowyer " testified that he had previously informed [AAG Collins], his superiors and AUSA Graves of the photographs of the scene taken by him." Id. ¶ 46.
The parties dispute the veracity of plaintiff Bowyer's testimony in the Bridgewater case regarding the photographs. The plaintiffs insist that the hearing testimony was truthful, and plaintiff Bowyer even filed an ethics complaint against AAG Collins with the D.C. Bar Counsel for what the plaintiffs characterize as " her unethical conduct during the Bridgewater trial and falsely accusing [Bowyer] of perjury." Pls.' D.C. Facts ¶ 37. The defendants and AAG Collins, however, insist that the testimony was false. After the hearing testimony was given, AAG Collins filed a complaint about plaintiff Bowyer with AAG Barbara Chesser and AAG Collins's superior at the OAG, Deputy Attorney General Robert Hildum. See D.C. Facts ¶¶ 35, 39. Based on AAG Collins's complaints and similar complaints from another prosecutor in a separate case discussed below, the
OAG decided to bar both of the plaintiffs from testifying in future OAG prosecutions (known as being placed on the " Lewis List" ), and Hildum informed defendant Rubin of this decision in person on August 21, 2008 and via letters dated October 27-28, 2008. See Pls.' D.C. Facts ¶ 39; Decl. of Dennis L. Rubin (" Rubin Decl." ) ¶¶ 7-13, ECF No. 59-3; see also Pls.' Exs. 34-35, ECF No. 55-2.
4. The K.A. Case
The final investigation relevant to the plaintiffs' claims was of a house fire that occurred on June 18, 2008 at 317 L Street N.E. in Washington D.C. See D.C. Facts ¶¶ 40, 41. The fire was at the house of a juvenile, K.A. Id. ¶ 41. The plaintiffs allege that " DCFEMS had initially assigned an inexperienced investigator to head up the fire investigation," but " [a]fter the fire attracted public attention, Defendant Palmer assigned Mr. Bowyer as the lead follow-up investigator in order to close the case quickly." Compl. ¶ 33. Plaintiff Bowyer testified in his deposition that the investigator who had done the origin-and-cause investigation, Taunja Kittrell, " botched" the investigation because she " hadn't had the basic fire investigation [training]."  Pls.' Ex. 3, at 188-89. As a result of Kittrell's alleged lack of training, according to plaintiff Bowyer, " [s]he wasn't aware of the area of origin," she " wasn't aware of the standard methodology for investigating fires," and she " didn't understand basic fire dynamics." Id. at 190. Plaintiff Bowyer further testified that, while at the scene of the fire, he observed that citizens were being allowed to walk in and out of the scene, items and debris were improperly removed from the scene while the investigation was taking place, evidence was contaminated after it was removed from the house, and the scene was not photographed properly. See id. at 192-95. Plaintiff Bowyer says that he notified defendant Palmer, after the completion of the origin-and-cause investigation by Firefighter Kittrell, that " we may have problems with the arson case based on the botched investigation." Id. at 188.
After the initial origin-and-cause investigation by Kittrell, the plaintiffs were assigned to conduct the follow-up investigation. See Compl. ¶ 33. According to AAG Mary O'Connor, who prosecuted the K.A. case, K.A. confessed twice to setting the fire: once when the plaintiffs interviewed K.A. at K.A.'s home and once when K.A. was being questioned at the Youth Division. See Decl. of Mary O'Connor (" O'Connor Decl." ) ¶ 5, ECF No. 49-2. The plaintiffs, however, maintain that " [t]he Plaintiffs only obtained one confession at the Youth Division" and " [a]ny statements made at K.A.'s home were admissions."  Pls.' D.C. Facts ¶ 45. In any
event, K.A. moved to suppress the confession, and both of the plaintiffs testified at the suppression hearing: plaintiff Pennington for the government, and plaintiff Bowyer for the defense. See O'Connor Decl. ¶¶ 9-10. The defendants and AAG O'Connor maintain that the testimony at the suppression hearing established that K.A. asked for an attorney while being questioned by the plaintiffs and that the plaintiffs continued to question K.A. despite his requests for an attorney. See D.C. Facts ¶¶ 52-53; O'Connor Decl. ¶¶ 12-13. The plaintiffs concede that " [d]uring K.A.'s responses to questions he would refer to his lawyer," but contend that K.A. " never invoked his right to counsel." Pls.' D.C. Facts ¶ 52. Regardless, the parties agree that the presiding judge suppressed K.A.'s confession. See id. ¶ 55; D.C. Facts ¶ 55. The plaintiffs deny, however, the defendants' and AAG O'Connor's statements that the basis for the suppression was that the presiding judge determined that the plaintiffs had violated K.A.'s Miranda rights. See Pls.' D.C. Facts ¶ 55; see also D.C. Facts ¶ 55; O'Connor Decl. ¶ 14. Rather, the plaintiffs maintain that " [i]t was not the statements made by the Plaintiffs that caused the evidence to be suppressed but rather the lack of evidence presented by AAG O'Connor at trial." Pls.' D.C. Facts ¶ 55.
On June 21, 2008, after the plaintiffs had interviewed K.A., AAG Chesser informed the plaintiffs that they were no longer assigned to the K.A. case because they had been pet on the Lewis List by the OAG, as discussed above. See Pls.' Ex. 4, at 180; Pls.' Ex. 52, ECF No. 55-2; Pls.' D.C. Opp'n at 11. At trial in August 2008, plaintiff Bowyer was subpoenaed to testify on behalf of the defense as " an expert with regards to general fire origin and cause." Pls.' D.C. Facts ¶ 56; O'Connor Decl. ¶ 15. According to the defendants and AAG O'Connor, plaintiff Bowyer " testified that he could not determine how the fire was started," a conclusion that was inconsistent with a standard form (PD 379) signed by plaintiffs Bowyer and Pennington, which stated that " ‘ scene investigations revealed that fire was intentionally set.’ " D.C. Facts ¶¶ 57-59; O'Connor Decl. ¶¶ 16-18. The plaintiffs contend, however, that plaintiff Bowyer did not testify as the defendants describe because Bowyer " did not do the origin and cause investigation" and thus " he did not change his determination because he did not make a determination in the first place and was not asked to do so." Pls.' D.C. Facts ¶¶ 57, 60. Further, although the plaintiffs do not appear to contest the contents of the PD 379 form or that they signed that form, they contend instead that " Bowyer signed the PD-379 because he was ordered to do so by Defendant Palmer." Id. ¶ 58. In the end, the District's arson prosecution of K.A. was unsuccessful, O'Connor Decl. ¶ 20, and formal disciplinary charges were subsequently filed against plaintiff Bowyer for his testimony. The charges stated, inter alia, that the " statements you made at trial
directly contradict the PD 379 that you completed and signed on June 20, 2008, and therefore, constitutes perjury." Pls.' Ex. 43, at 5, ECF No. 55-2.
C. Alleged Retaliation by DCFEMS
The plaintiffs assert that the defendants retaliated against them after they spoke out about the instances of alleged misconduct and incompetence discussed above, and it is this alleged retaliation that is the nub of the plaintiffs' case. First and most generally, the plaintiffs contend that, as they began to speak out in 2007 about issues of racial discrimination, " botched" investigations, and other perceived misconduct within the DCFEMS, they were subjected to a " hostile work environment." See Compl. ¶¶ 20, 22, 28, 31, 42; Pls.' D.C. Opp'n at 4, 12; Bowyer Decl. ¶ 17; Pennington Decl. ¶ 21. According to the plaintiffs, this hostile work environment consisted of a racially divided FIU and the isolation of the plaintiffs from the rest of the Unit based on perceived disloyalty. See Compl. ¶¶ 20, 31.
According to the Complaint, " [t]he retaliation against Plaintiffs began in the early spring of 2007 when Defendant Rubin promoted Defendant Palmer to the position of Fire Marshal." Compl. ¶ 18. At that time, the plaintiffs say that they informed defendant Palmer about Sgt. Proctor helping white firefighters cheat on the fire investigator exam " in furtherance of the Department's racially discriminatory policy to increase the numbers of white fire investigators regardless of their qualifications." Id.; see also Pls.' Ex. 6, at 312, ECF No. 55-2. On March 26, 2007, after the plaintiffs say they had notified defendant Palmer about Sgt. Proctor's alleged cheating, the plaintiffs claim that Lt. Duck removed them from the Burned Vehicle Initiative (" BVI" ), a program established by the plaintiffs in January 2007 after they had noticed a rise in vehicle fires. Pls.' D.C. Opp'n at 5, 28; see also Pls.' Ex. 2 ¶ 6, ECF No. 55-2. Lt. Duck took over the BVI, and according to the plaintiffs he " reassigned these investigations to the white firefighters who were joining FIU." Compl. ¶ 19.
Next, the plaintiffs contend that, after they " raised concerns" about the origin-and-cause investigation for the Eastern Market fire on April 30, 2007 and the alleged manipulation of records by Lt. Duck for the purpose of obtaining new equipment for the FIU in June 2007, the defendants changed the plaintiffs' shift structure in retaliation. Pls.' D.C. Opp'n at 4, 28; Pls.' Ex. 1 ¶ 18, ECF No. 55-2. In particular, on June 16, 2007, the plaintiffs allege that the defendants changed their work schedule " from a Monday-Friday day shift to a 24 hours on, 72 hours off schedule." Compl. ¶ 29; see also Pls.' D.C. Opp'n at 28. Although defendant Palmer maintains that this shift change applied to the entire FIU " [t]o bring it in line with the rest of the department" because of payroll and ...