United States District Court, D. Columbia.
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For BRANDY MCGINNIS, Plaintiff: Nigel L. Wilkinson, Thomas J. Craven, Benjamin G. Chew, PATTON BOGGS, LLP, Washington, DC.
For DISTRICT OF COLUMBIA, ASHLEY ROSENTHAL, ALISA PETTY, GREGORY STROUD, DIANA HAINES-WALTON, Defendants: Joseph Alfonso Gonzalez, LEAD ATTORNEY, OFFICE OF ATTORNEY GENERAL/DC, Washington, DC.
Emmet G. Sullivan, United States District Judge.
Brandy McGinnis brings this action against the District of Columbia (" the District" ) and four employees of the Metropolitan Police Department (" the MPD" ). Ms. McGinnis claims that her constitutionally protected liberty interest was violated when she was falsely accused of having lied on her application to the MPD and terminated from employment. Ms. McGinnis also brings claims for intentional infliction of emotional distress and defamation. Pending before the Court is defendants' motion to dismiss plaintiff's liberty-interest claims. Upon consideration of the motion, the response and reply thereto, the applicable law, and the entire record, the Court DENIES defendants' motion.
A. Ms. McGinnis Becomes a Police Officer in Florida.
Ms. McGinnis is a former police officer with the Aventura Police Department in Aventura, Florida. See First Am. Compl., ECF No. 10 ¶ 2. She was " a well-respected and decorated police officer" during her time in Aventura, and " received several awards, promotions, and recognitions" there. Id. ¶ ¶ 2, 26.
Prior to becoming a police officer in Aventura, Ms. McGinnis attended the Miami-Dade School of Justice for training. See id. ¶ 3. During training, Ms. McGinnis " discovered that she has a medical condition involving a severe allergy to" pepper spray (which is also known as oleoresin capsicum or " OC" spray). Id. ¶ ¶ 3, 27. This arose when Ms. McGinnis " suffered an unusually harsh reaction to [OC] spray." Id. ¶ 28. Ms. McGinnis had been " sprayed directly in the eyes," and she " suffered permanent damage to her right eye which requires her to wear eyeglasses at night and while reading." Id. ¶ ¶ 3-4. She was ordered by a supervisor to seek medical treatment and was ultimately diagnosed with " both an allergy and a hypersensitivity to OC spray." Id. ¶ ¶ 28-29. This allergy " does not prevent her from carrying or even using OC spray," so long as she " avoid[s] a direct spray to the eyes." Id. ¶ 30. Accordingly, the incident had no effect on her training, and she graduated successfully. See id. ¶ 4.
B. Ms. McGinnis Applies to Become a Police Officer in the District of Columbia.
On December 5, 2011, Ms. McGinnis filled out an application for employment with the MPD. See id. ¶ 34. On this application, Ms. McGinnis " disclosed the OC spray allergy, but noted that she is certified to use and carry OC spray." Id. On December 14, 2011, she interviewed with a background investigator. See id. ¶ 35. Ms. McGinnis informed the investigator of her allergy and he " indicated that this would not be a problem." Id.
The next step in the application process was a physical examination, which Ms. McGinnis took on January 17, 2012. See id. ¶ 36. During the examination, she completed " a medical history form that inquired about drug and sinus allergies, but not food or other types of allergies," checked a box which indicated that she had an eye injury, and " in the space provided . . . to explain . . . disclosed that she suffered an eye injury from OC spray in 2007." Id. During the physical examination, Ms. McGinnis also informed the doctor " that she had an allergy to OC spray . . . that there was no specific place for her
to make the OC spray allergy disclosure on the medical history form, but that she disclosed the eye injury she suffered [as a result of OC spray]." Id. ¶ 37. The doctor informed her that " this would not be a problem since she disclosed the allergy to [the investigator] and was already certified," and indicated that " he would make a note of it in Ms. McGinnis's file." Id.
C. Ms. McGinnis Begins Training at the MPD Academy.
Ms. McGinnis was hired by the MPD on January 25, 2012. See id. ¶ 38. On January 31, 2012, she began training at the MPD Academy " where she immediately excelled and was made Class Leader on the second day of training." Id. ¶ 5. Her allergy was discussed soon after training began, when Ms. McGinnis " advised [Sergeant] Young and Class Officer Kelwin Ford . . . that she was allergic to OC spray." Id. ¶ 41. When Class Officer Ford expressed his belief that everyone is allergic to OC spray, Ms. McGinnis explained that " although everyone suffers irritation from OC spray, people with an allergy suffer much more significant and longer-lasting effects following a direct spray to the eyes." Id. Class Officer Ford indicated " that they would deal with the issue when the time came for OC spray training." Id.
Ms. McGinnis reminded Sergeant Young of her OC spray allergy in May 2012, and again in June 2012, at which point Sergeant Young told her " to get something in writing." Id. ¶ ¶ 43-44. Accordingly, on July 17, 2012, Ms. McGinnis provided him a letter from Major William Washa of the Aventura Police Department, which indicated that Major Washa had witnessed Ms. McGinnis's reaction to OC spray. See id. ¶ 45. Sergeant Young said that he would give the letter to the OC spray instructor, Lieutenant Ashley Rosenthal, and " advised that it should not be a problem." Id.
Ms. McGinnis alleges that she expected to participate fully in the MPD's OC spray training because " according to the other MPD officers who were certified to conduct the . . . training . . . they were . . . trained . . . to spray recruits across the forehead rather than directly in the eyes." Id. ¶ 47. Ms. McGinnis alleges that Lieutenant Rosenthal was also trained to spray across the forehead, " but because MPD apparently lacks a clear policy for OC spray training and because Lt. Rosenthal evidently believes this method is not effective enough, Lt. Rosenthal has implemented her own custom . . . of spraying recruits . . . across the eyes." Id. ¶ 48.
D. Ms. McGinnis is Placed on Limited Duty.
On July 20, 2012, Ms. McGinnis was told to go to the medical clinic to be exempted from OC spray training. See id. ¶ 49. Ms. McGinnis protested " that she was not asking to be exempt, she was just requesting that she not be sprayed directly in the eyes," id., but Lieutenant Rosenthal insisted she meet with an MPD doctor. See id. ¶ 50. That doctor " placed Ms. McGinnis on limited duty and advised that [she] would need to see an allergy specialist." Id. When Ms. McGinnis next reported to the MPD Academy, two class officers " told her to remove her uniform and put on civilian attire because she was on limited duty." Id. ¶ 53. Ms. McGinnis's responsibilities as Class Leader were also reassigned. See id. Later, Ms. McGinnis attended her appointment with the allergy specialist and the doctor agreed to provide the MPD with a letter " indicating that Ms. McGinnis has an 'extra sensitivity to pepper spray.'" Id. ¶ ¶ 55-56.
The following week, Ms. McGinnis went to the MPD clinic as directed, and " was
advised that she could not be exempted from the OC spray training." Id. ¶ 57. Her doctor called the Medical Services Director, Gregory Stroud, " advised Ms. McGinnis that she was still on limited duty," and directed Ms. McGinnis to report back to the clinic on August 16, 2012. See id.
Ms. McGinnis continued to report to the Academy. On August 3, 2012, she encountered Inspector Alisa Petty, the individual in command of the Academy, who asked her why she was wearing civilian clothing. See id. ¶ 60. After Ms. McGinnis explained, Inspector Petty " indicated this was the first she had heard of the matter." Id. Five days later, when Ms. McGinnis's class underwent OC spray training--and were sprayed " directly across the eyes," id. ¶ 62--Inspector Petty advised Ms. McGinnis that " she was 'not doomed, just delayed.'" Id. ¶ 63. Although Ms. McGinnis was permitted to be present during the OC spray training, Lieutenant Rosenthal later told her to leave the area " due to her allergy." See id. ¶ 64.
Over the next week, Ms. McGinnis continued to participate in training, had her photograph taken to be used in the graduation program, and took her final written exam, which she " passed with an 85%, one of the highest scores in the class." Id. ¶ ¶ 65-68. On August 16, 2012, she attended an appointment at the MPD clinic, was " advised . . . that she would remain on limited duty," and was given additional documents for her allergy specialist to complete, including a request " to clarify whether Ms. McGinnis has an allergy to OC spray" and a request for a determination " whether Ms. McGinnis is 'capable of performing the full range of duties required of a police officer.'" Id. ¶ 70. Ms. McGinnis then spoke with Medical Services Director Stroud, who informed her " that all officers are required to be OC spray certified" and " that, had another MPD officer not called him on Ms. McGinnis's behalf, he would have fired her already." Id. ¶ 71. Director Stroud " further advised that once Ms. McGinnis returned to full duty, she should 'suck it up' and take the direct spray across the eyes." Id. ¶ 72.
E. Ms. McGinnis is Terminated from Employment with the MPD.
On August 17, 2012, Sergeants Young and Butler drove Ms. McGinnis to the MPD headquarters. See id. ¶ 75. Ms. McGinnis asked Sergeant Young if she was being fired and he said that she was; when she asked why, Sergeant Young indicated that he did not know. See id. Upon arrival, Sergeant George Bernard gave Ms. McGinnis a letter and asked her " if she knew why she was being terminated." Id. ¶ ¶ 76-77. When Ms. McGinnis responded that she did not, Sergeant Bernard said that it was " because she lied to the department about a medical condition." Id. ¶ 77. The MPD, Sergeant Bernard indicated, " was claiming it never knew about her condition." Id. ¶ 78.
Sergeant Bernard exited the room and left behind paperwork that Sergeants Young and Butler began to read. See id. ¶ 80. Ms. McGinnis also read the materials, which included " the medical history form on which Ms. McGinnis disclosed her 2007 OC spray injury" as well as an August 14, 2012 memorandum from the MPD's Director of Human Resources, Diana Haines-Walton, to the Chief of Police (" the Haines-Walton Memo" ). See id. ¶ 81. The Memo stated that Ms. McGinnis: (1) " 'failed to disclose her severe allergy to OC spray during the recruitment process'" ; (2) " 'deliberately and consciously made ...