United States District Court, D. Columbia.
WAYNE A. WILSON, Plaintiff,
RAYMOND E. MABUS, JR., et al., Defendants
Decided August 21, 2014
For Wayne A. Wilson, Plaintiff: John W. Davis, LEAD ATTORNEY, JOHN W DAVIS & ASSOCIATES, Washington , DC.
For Raymond Edwin Mabus, Jr., Leon Panetta, In His Official Capacity as Secretary of Defense, Defendants: Andrea McBarnette, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington , DC.
Royce C. Lamberth, United States District Judge.
Before the Court is the defendant's Motion to Dismiss or, in the Alternative, for Summary Judgment  on plaintiff Wayne Wilson's complaint . Wilson filed a complaint alleging employment discrimination and retaliation pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., (" Title VII" ). Upon consideration of the defendant's Motion to Dismiss or, in the Alternative, for Summary Judgment, the plaintiff's Opposition thereto , and the defendant's Reply , the Court will GRANT the defendant's Motion for the reasons stated below.
The relevant facts are as follows: plaintiff, Wayne A. Wilson, is an African American male employed since 2002 by the United States Navy as a police officer assigned to the Naval District of Washington (" NDW" ) in Washington, D.C. According to Mr. Wilson, on November 27, 2009, after
drinking, plaintiff fired a gun multiple times after he arrived at his home in Prince George's County Maryland and observed unknown males with his daughters. Compl. ¶ 11. He believed the young men were trespassing on his property. Id. Plaintiff was arrested by the Prince George's County Police and charged with criminal reckless endangerment and second degree assault. Id. ¶ 12.
As a result of the November 27, 2009 incident, defendant placed plaintiff on indefinite suspension without pay, effective March 12, 2010, pending the disposition of the criminal proceedings against plaintiff, or until the completion of an administrative action. Id. ¶ 14; Def.'s Mot. to Dismiss, Ex. 5 (February 16, 2010 Proposed Suspension Letter). On June 15, 2010, plaintiff was acquitted of the criminal charges against him. Compl. ¶ 15. Subsequently, on June 23, 2010, defendant notified plaintiff that his indefinite suspension was terminated and plaintiff could return to active duty effective June 25, 2010. Id. ¶ 16.
Plaintiff filed an appeal with the Merit Systems Protection Board (" MSPB" ) on July 5, 2010, challenging his suspension without pay and his reinstatement without back pay and without restoration to his pre-suspension shift. Def.'s Mot. to Dismiss, Ex. 8 (July 5, 2010 MSPB Appeal). The MSPB dismissed plaintiff's appeal because it was untimely filed. Id., Ex. 9 (August 18, 2010 Initial MSPB Decision). Plaintiff later contacted an EEO counselor on July 6, 2010, and, on September 4, 2010, he filed a formal complaint of discrimination with the NDW EEO Office challenging his suspension without pay and his reinstatement without back pay or restoration to his preferred shift. Id. ¶ 26. Plaintiff noted in his EEO Complaint that he was subjected to retaliation and that white officers and female officers receive preferential treatment in shift assignment, pay, and discipline. Def.'s Mot. to Dismiss, Ex. 10 (September 4, 2010 EEO Complaint). Defendant dismissed plaintiffs EEO complaint on March 16, 2011 for untimely counselor contact and failure to state a claim of reprisal. Id., Ex. 11 (March 16, 2011 EEO Dismissal of Claims).
Plaintiffs claim of retaliation focuses on an incident on January 4, 2011 in which Officer Cassandra Thompson observed him using his cell phone while standing post and directing traffic, which is a violation of NDW rules. Compl. ¶ 32. As a result, defendant issued plaintiff a proposal to suspend him for five days. Id. In January 2012, defendant issued plaintiff a decision to affect the five-day suspension. Id. ¶ 33. Plaintiff contacted the NDW EEO ...