United States District Court, D. Columbia.
GREGORY L. TURNER, Plaintiff,
UNITED STATES CAPITOL POLICE, et al., Defendants
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For Gregory L. Turner, Plaintiff: John Patrick Mahoney, LEAD ATTORNEY, TULLY RINCKEY PLLC, Washington, DC, USA; Peter H. Noone, PRO HAC VICE, AVERY, DOOLEY & NOONE, LLP, Belmont, MA, USA.
For United States Capitol Police, Phillip D. Morse, in his official capacity as Chief, U.S. Capitol Police (Ex officio), United States Capitol Police Board, Defendants: John G. Interrante, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC, USA.
AMY BERMAN JACKSON, United States District Judge.
Plaintiff Gregory L. Turner has brought this action against the United States Capitol Police (" USCP" or " the Agency" ), the United States Capitol Police Board (" CPB" ), and the Honorable Philip D. Morse in his official capacity as the Chief of the United States Capitol Police. Plaintiff is a former lieutenant with the Capitol Police who was terminated from that position in May 2011. He alleges that in terminating his employment, defendants unlawfully discriminated against him on the basis of his age and race, and also violated his rights under the First and Fifth Amendments of the United States Constitution. Defendants have moved to dismiss all five counts of the complaint, or in the alternative for summary judgment on those counts. They have also moved to dismiss two defendants, the CPB and Chief Morse, on the grounds that they were improperly joined, that sovereign immunity bars the claims against them, and that plaintiff failed to exhaust his remedies as to them.
Defendants have attached numerous exhibits to the memorandum in support of their motion, and those documents include matters outside of the pleadings. Since the Court relied on some of this material in connection with its consideration of the motion to dismiss Counts One, Two, Three, and Five - the age and race discrimination claims, the Fifth Amendment due process claim, and the First Amendment freedom of association claim - it will treat defendant's motion as a motion for summary judgment on those counts. Plaintiff has failed to come forward with evidence that would establish the existence of a genuine dispute of material fact as to Count One, age discrimination, and Count Five, First Amendment freedom of association, and so defendants' motion will be granted on those claims. But since there are still genuine factual issues to be explored in connection with plaintiff's claims of race discrimination and denial of procedural due process, the Court will deny defendants' motion for judgment on Counts Two and Three without prejudice.
In addition, some matters can be determined on the face of the pleadings. The Court finds that plaintiff has failed to state a claim in Count Four for violation of his First Amendment right to free speech because he does not allege that he engaged in any speech at all, protected or otherwise. The Court also finds that it lacks
subject matter jurisdiction over Chief Morse and the CPB because plaintiff has failed to exhaust his administrative remedies as to those defendants.
I. Factual Background
The following facts are not in dispute except where noted. Plaintiff joined the United States Capitol Police as a law enforcement officer in 1995, was promoted to sergeant in 1998, and to lieutenant in 2008. Compl. ¶ 10 [Dkt. # 1]; Pl.'s Resps. to Defs.' Statement of Material Facts as to Which There is No Genuine Dispute ¶ 1 [Dkt. # 37] (" Pl.'s Resp." ). In 1998, plaintiff joined the Tribes Motorcycle Club (" TMC" ), a " social riding club" for motorcycle enthusiasts. Compl. ¶ ¶ 11-12. Although it is undisputed that TMC is not an " outlaw" motorcycle club, plaintiff's conduct in connection with his TMC membership has been the subject of multiple investigations by the USCP and the FBI. Pl.'s Resp. ¶ ¶ 3-4, 19.
In 2003, the USCP Internal Affairs Division conducted an investigation of plaintiff and his TMC activities that did not result in any discipline. Ex. A to Pl.'s Statement of Issues Presenting Matters for Disc. & Trial at 1 [Dkt. # 38-1]. In 2007, plaintiff learned that he and two other Capitol Police employees who were TMC members were all subjects of a criminal investigation by the FBI. Pl.'s Resp. ¶ 3. The FBI's investigation did not result in criminal charges, but in 2009, the USCP's Office of Inspector General (" OIG" ) launched its own investigation into the three employees' activities. Id. ¶ 4.
On January 19, 2009, the day before President Barack Obama's first inauguration ceremony, plaintiff was placed on administrative leave pending the outcome of the OIG investigation. Id.; Compl. ¶ 18; Defs.' Mem. of P. & A. in Supp. of Mot. to Dismiss or, in the Alternative, for Summ. J. at 36 [Dkt. # 27-1] (" Defs.' Mem." ). According to plaintiff, who is white, the Black Capitol Police Association (" BCPA" ) pressured the USCP to place him on leave, and it released a publication, Racism Unchecked, that attributed " white supremacist views" to TMC. Compl. ¶ 18; see Ex. A to Pl.'s Proposed Disc. Plan at 13-14 [Dkt. # 39-1] (excerpts from Racism Unchecked ).
The OIG eventually produced a report finding that plaintiff had associated with members of " outlaw" motorcycle clubs, with a white supremacist, and with convicted felons, and that he was serving as the president of TMC without prior authorization by the Capitol Police. Pl.'s Resp. ¶ 5. Based on the OIG's findings, in May 2010, the USCP charged plaintiff with violating rules prohibiting " Conduct Unbecoming," " Improper Associations," and " Outside Employment for Compensation or Voluntary Service," and recommended a penalty of termination of employment. Pl.'s Resp. ¶ ¶ 6-8; Ex. A. to Pl.'s Resp. at 1-2 [Dkt. # 37-1]. The USCP provided plaintiff with a redacted copy of the OIG report. Compl. ¶ 22; Defs.' Reply in Supp. of Mot. to Dismiss, or in the Alternative, for Summ. J. at 8 [Dkt. # 34] (" Defs.' Reply" ).
Plaintiff's disciplinary proceedings followed the three-step process for the termination of a USCP employee: first, he had an administrative hearing before a Disciplinary Review Board (" DRB" ), which issued its findings and recommendation to Chief Morse; second, Chief Morse issued his own recommendation to the Capitol Police Board, or CPB; and third, the CPB voted to approve Chief Morse's recommendation. See Ex. E to Defs.' Mem. [Dkt. # 27-5] (" USCP Gen. Order No. 2222" ); 2 U.S.C. § 1907(e)(1)(B) (2014) (providing that the Chief must give notice of a proposed
termination to the CPB and that the termination only becomes final after the Board approves it or takes no action for thirty days). Pursuant to USCP General Order No. 2222, a DRB is made up of a five-member panel of USCP law enforcement personnel, including a Presiding Officer. USCP Gen. Order No. 2222 at 1-2. Plaintiff was represented by counsel throughout the termination process, including at the DRB hearing itself. Pl.'s Resp. ¶ 11.
Before the DRB hearing, plaintiff lodged multiple objections to the composition of the board through counsel. First, plaintiff objected to the selection of the Presiding Officer on the grounds that plaintiff believed him to be " associated with the BCPA" and therefore not impartial. Compl. ¶ ¶ 24-25; Defs.' Mem. at 18. The Agency acceded to plaintiff's request and appointed a new Presiding Officer. Compl. ¶ 25; Defs.' Mem at 18. Plaintiff states that he also requested that all BCPA members be disqualified from the DRB selection process because " their organization's publication, Racism Unchecked, demonstrated a predetermined conclusion as to [his] alleged misconduct and an inability to decide the case impartially." Compl. ¶ 27. The Presiding Officer denied this request, and denied plaintiff's request for reconsideration of that ruling. Id. Finally, plaintiff states that he objected to the allegedly unexplained removal of a DRB member who was a former " probationary member" of TMC, and who plaintiff believed might be sympathetic to his case. Id. ¶ 28-32.
The DRB hearing took place over the course of two days. Pl.'s Resp. ¶ 9. Plaintiff had the opportunity to cross-examine some of the witness against him and to introduce multiple witnesses in his defense, although he alleges that he was not permitted to call " at least one" witness of his choice. See, e.g., Ex. D1A to Defs.' Mem. at 85-90 [Dkt. # 28-2] (transcript of DRB hearing); see also Pl.'s Statement of Material Facts ¶ 10 [Dkt. # 32] (" Pl.'s Statement" ). Plaintiff also complains that he was not given a copy of key witness statements before the hearing. Compl. ¶ 67. Plaintiff acknowledges, however, that he received the statements during the course of the proceedings. Id. ¶ ¶ 36-37.
The DRB found plaintiff " guilty" of just one of the three charges, " Conduct Unbecoming," and it recommended a penalty of a 14-day suspension without pay. Pl.'s Resp. ¶ ¶ 12-13. Plaintiff was informed that he had the right to appeal this decision, but he declined to do so. Id. ¶ ¶ 14-15. Plaintiff was found " not guilty" of the other two charges, " Improper Associations" and " Outside Employment for Compensation or Voluntary Service." Id. ¶ 12.
Pursuant to General Order No. 2222, the DRB submitted its findings and recommendation to Chief Morse. Compl. ¶ 38; USCP Gen. Order No. 2222 at 7-8. Instead of adopting the DRB's recommendation, though, Chief Morse recommended to the CPB that plaintiff's employment be terminated. Pl.'s Resp. ¶ 16. In a memorandum explaining his decision, Chief Morse stated that he had " reviewed the
Report of Investigation and exhibits, the Disciplinary Review Officer recommendation and supporting documents, and the Disciplinary Review Board hearing testimony and recommendation, as well as other Department documents." Ex. B to Defs.' Mem. at 1 [Dkt. # 27-3] (" Morse Mem." ). He stated that he based his recommendation of dismissal not only the DRB finding of " conduct unbecoming," but on the " totality of the circumstances."  Id. at 1, 6; Pl.'s Resp. ¶ 17. Chief Morse then laid out the grounds for his recommendation, including plaintiff's encounter with a founding member of the Hell's Angels, plaintiff's visit to the clubhouse of a Hell's Angels chapter, plaintiff's presence and alleged interactions with members of outlaw motorcycle clubs at certain events, photographs of plaintiff at outlaw motorcycle club clubhouses and with convicted felons, and plaintiff's alleged association with at least one white supremacist. Morse Mem. at 4-5. It is plaintiff's position that some of these alleged incidents were mischaracterized and that others never occurred at all, and he points out that the 2003 investigation yielded no disciplinary action, and that the DRB had rejected the charge of " improper associations." Compl. ¶ ¶ 14, 43; Pl.'s Resp. ¶ ¶ 20-22. Plaintiff further alleges that Chief Morse was truly motivated by discriminatory and improper considerations. Pl.'s Statement ¶ ¶ 17-19.
Prior to the CPB's final termination decision, plaintiff submitted a letter through counsel to the CPB Chairman, Terrance W. Gainer, arguing that Chief Morse had " commit[ted] no fewer than 12 misrepresentations of the evidentiary record" and requesting that Chairman Gainer affirm the DRB's recommendation of a 14-day suspension. Ex. G to Defs.' Mem. at 1, 4 [Dkt. # 27-7] (" Pl.'s Letter to Gainer" ). Despite plaintiff's objections, the CPB approved Chief Morse's termination recommendation by a two-to-one vote. Ex. H to Defs.' Mem. [Dkt. # 27-8]. After his dismissal, plaintiff initiated a counseling and mediation process against the USCP, but not against the other defendants. Pl.'s Resp. ¶ 28. This process terminated unsuccessfully on January 16, 2012. Id.
II. Procedural Background
Plaintiff filed suit in this Court on April 20, 2012, alleging five causes of action against seven defendants. Compl. at 1-2. In Count One, plaintiff claims that defendants discriminated against him based on his age in violation of the Age Discrimination in Employment Act (" ADEA" ), 29 U.S.C. § 621 et seq. , as applied to the USCP through the Congressional Accountability Act (" CAA" ), 2 U.S.C. § 1302(a)(4) (2012). Compl. ¶ ¶ 50-57. Count Two asserts that defendants also discriminated against plaintiff on the basis of his race in violation of Title VII of the Civil Rights Act of 1964 (" Title VII" ), 42 U.S.C. § 2000e et seq. , as applied to the USCP through the CAA, 2 U.S.C. § 1302(a)(2). Compl. ¶ ¶ 58-62. In Count Three, plaintiff asserts that defendants violated his Fifth Amendment right to due process. Id. ¶ ¶ 63-69. Counts Four and Five allege violations of plaintiff's First Amendment rights to freedom of speech and association, respectively. Compl. ¶ ¶ 70-76. Plaintiff seeks reinstatement to his former position, back pay and other monetary relief,
declaratory relief, damages, and costs and attorney ...