United States District Court, D. Columbia.
For LUANNE LYNN MORAN, Plaintiff: Andrew D. Levy, LEAD ATTORNEY, ANNETTE DECESARIS, ATTORNEY AT LAW, LLC, Bowie, MD.
For UNITED STATES CAPITOL POLICE, Defendant: Frederick Michael Herrera, LEAD ATTORNEY, UNITED STATES CAPITOL POLICE, Washington, DC; Peter C. Pfaffenroth, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.
AMY BERMAN JACKSON, United States District Judge.
Plaintiff Luanne Lynn Moran brought this action against the United States Capitol Police (" USCP" ), alleging that defendant retaliated against her for engaging in protected activity in violation of the Congressional Accountability Act of 1995, 2 U.S.C. § 1301, et seq. (" CAA" ). Defendant has moved for summary judgment. Def.'s Mot. for Summ. J. [Dkt. # 17] (" Def.'s Mot." ); Def.'s Mem. of P. & A. in Supp. of Def.'s Mot. [Dkt. # 17] (" Def.'s Mem." ). Since defendant has advanced a legitimate, non-retaliatory reason for plaintiff's termination, and because plaintiff has failed to put forth sufficient evidence from which a reasonable juror could determine that defendant's proffered reason is pretextual, the Court will grant defendant's motion and dismiss the case.
I. Factual Background
The following facts are undisputed, except where noted. Plaintiff was employed as a Special Agent (" SA" ) with the USCP from October 1995 until her termination on October 19, 2011. Aff. of Luanne Lynn Moran, Ex. 1 to Pl.'s Opp. to Def.'s Mot. [Dkt. # 18-1] (" Moran Aff." ) ¶ 2. Beginning in 1998 and through her termination, plaintiff served with the Dignitary Protection Division. Id.
A. Plaintiff's Internal Complaints Against Defendant
In January of 2005, plaintiff filed an administrative complaint with the Office of Compliance, alleging that defendant discriminated against plaintiff on the basis of her gender when it denied her request to transfer to the detail protecting the then-Speaker of the House, Nancy Pelosi (" the Speaker" ). Moran Aff. ¶ 4; Def.'s Mem. at 2. This complaint was eventually settled, and plaintiff was assigned to the Speaker's detail in 2007. Moran Aff. ¶ ¶ 4-5; Def.'s Mem. at 2.
In August and November of 2008, plaintiff filed two separate administrative complaints with defendant's Office of Professional Responsibility (" OPR" ). Moran Aff. ¶ ¶ 9-10, 28. The first alleged that plaintiff had been told by coworkers that Supervisory Special Agent (" SSA" ) Dorman Simmons had made sexually inappropriate comments to and about other female employees. Id. ¶ 10. Plaintiff was not present for any of these comments, and none were directed at her. Id. ¶ ¶ 9-10; Def.'s Mem. at 3. Plaintiff's second complaint claimed that defendant's employees, including SSA Simmons, were retaliating against plaintiff for filing the August complaint against SSA Simmons. Moran Aff. ¶ 28.
B. Defendant's Investigation of Plaintiff
On August 16, 2008, plaintiff's coworker SA Dana M. Susak filed a complaint with SSA Raymond L. Stonestreet -- one of plaintiff's supervisors -- alleging that plaintiff had referred to SA Susak as " trash," told her to " get the f*** away from [plaintiff's] truck" while on a protective detail in Washington, D.C., and suggested on a separate occasion while on a protective detail in Napa, California that SA Susak should be shot with a BB gun. USCP Report of Investigation -- Truthfulness, Ex. 1 to Def.'s Mot [Dkt. # 17-1] (" Truthfulness Investigation Rep." ) at 2-3; Email from Dana M. Susak to Raymond L. Stonestreet (Aug. 16, 2008), Attach. 4 to Truthfulness Investigation Rep. [Dkt. # 17-1] at 1; see also Moran Aff. ¶ ¶ 18-19. SSA Stonestreet was present when plaintiff referred to SA Susak as " trash," but he was not present for the other incidents. Memorandum from SSA Raymond L. Stonestreet, Attach. 5 to Truthfulness Investigation Rep. [Dkt. # 17-1] at 1; Moran Aff. ¶ 18.
On September 4, 2008, SSA Stonestreet began a formal investigation based on SA Susak's allegations, and on October 28, 2008, he interviewed plaintiff in connection with the investigation. Truthfulness Investigation Rep. at 1-2; Moran Aff. ¶ ¶ 17-19. SSA John A. DeWolfe was also present for the interview. Truthfulness Investigation Rep. at 1; Moran Aff. ¶ 18. Prior to the interview, plaintiff reviewed and signed Form 1009, " Rights and Responsibilities Relative to Administrative Investigations," which states that USCP employees " are compelled to truthfully and fully answer all questions posed by a supervisor" during an investigation. Truthfulness Investigation Rep. at 1; Moran Aff. ¶ 18; USCP CP-1009, " Rights and Responsibilities Relative to Administrative Investigations," Attach. 11 to Truthfulness Investigation Rep. [Dkt. # 17-1].
During the interview, SSA Stonestreet questioned plaintiff about the incidents involving SA Susak. The interview was not transcribed, and the parties differ as to the exact phrasing of the questions posed to plaintiff and the content of her answers. According to defendant, plaintiff was asked directly whether she used profanity toward SA Susak while on a protective detail in Washington, D.C. and whether she stated while on a protective detail in Napa, California that SA Susak " should be shot with a BB gun," and plaintiff specifically denied both allegations. Def.'s Mem. at 6; see also Truthfulness Investigation Rep. at 1 (stating that plaintiff " denied both allegations" that she directed profanity at SA Susak and that she stated that SA Susak should be shot with a BB gun). Defendant points to contemporaneous accounts in support of its rendition of events. See Interview Notes of SSA DeWolfe, Attach. 10 to Truthfulness Investigation Rep. [Dkt. # 17-1] (" DeWolfe Notes" ) (noting that plaintiff stated that she " would not use profanity towards SA Susak" and that she " denied making the threatening statement involving the BB gun" ); Interview Notes of SSA Stonestreet, Attach. 12 to Truthfulness Investigation Rep. [Dkt. # 17-1] (" Stonestreet Notes" ) (stating that, regarding use of profanity, plaintiff said she " [d]idn't say it" and would " not curse @ her" and that regarding the BB gun comment, plaintiff stated that " she didn't say" it).
However, in her affidavit in opposition to defendant's motion for summary judgment, plaintiff describes the interview differently, and she insists that when she spoke to SSA Stonestreet in October 2008, she truthfully admitted calling SA Susak trash, she admitted directing profanity at SA Susak, and she answered simply that she did not recall when asked about the BB gun remark. Moran Aff. ¶ ¶ 18-19.
After his meeting with plaintiff, SSA Stonestreet interviewed and took written statements from coworkers who witnessed the incidents in question or discussed them immediately afterwards with plaintiff. Truthfulness Investigation Rep. at 1. These interviews corroborated SA Susak's claims. See Attachs. 2, 5, 7-9 to Truthfulness Investigation Rep. [Dkt. # 17-1]. At the conclusion of the investigation, SSA Stonestreet determined that plaintiff had made the comments in question and had violated the Rules of Conduct for Courtesy and Conduct Unbecoming of a USCP officer. See USCP Report of Investigation -- Courtesy and Conduct Unbecoming, Attach. 1 to Truthfulness Investigation Rep. [Dkt. # 17-1] at 12-13. SSA Stonestreet also undertook a review of plaintiff's veracity during the interview, and he drafted a report of investigation relating to plaintiff's truthfulness. Def.'s Mem. at 7 n.4; see also Draft USCP Report of Investigation -- Truthfulness, Attach. 2 to Truthfulness Investigation Rep. [Dkt. # 17-1] (" SSA Stonestreet Truthfulness Investigation Draft Rep." ) at 2.
Plaintiff was disciplined for the courtesy and conduct violations, and she appealed the decision to USCP Chief Phillip D. Morse in December 2008. See Memorandum of Appeal, Attach. 3 to Truthfulness Investigation Rep. [Dkt. # 17-1]. In her appeal, plaintiff recounted an incident where, in her words, she had told SA Susak " to get the f*** out of my vehicle," and she acknowledged that she " did call Dana [Susak] trash." Id. at 4. Chief Morse noted that plaintiff's appeal letter contradicted the testimony she reportedly provided during the Stonestreet interview, and he forwarded the case to OPR for an investigation into whether plaintiff had made untruthful statements during the official administrative investigation into her conduct. Decl. of Phillip D. Morse, Ex. 2 to Def.'s Mot [Dkt. # 17-2] (" Morse Decl." ) ¶ ¶ 4-6. In March 2009, plaintiff was placed on administrative leave as a result of the pending untruthfulness charge. Moran Aff. ¶ 32.
In response to Chief Morse's referral, OPR Investigator Sergeant Shawn Huycke reviewed SSA Stonestreet's draft report, the notes of the interview taken by SSA Stonestreet and SSA DeWolfe, and the testimony of several witnesses, and he issued a report in April 2009. Truthfulness Investigation Rep. at 4. Investigator Huycke found that plaintiff told SSA Stonestreet that she had not made a comment about shooting SA Susak with a BB gun, but that two witnesses and SA Susak herself testified that plaintiff did make the statement. Id. at 3. Further, Investigator Huycke found that while plaintiff denied directing profanity at SA Susak during the Stonestreet interview, two witnesses confirmed that plaintiff had used profanity, and plaintiff herself subsequently acknowledged in her appeal to Officer Morse that she had cursed at SA Susak. Id. As a result, he determined by a preponderance of the evidence that plaintiff had committed a truthfulness violation by making false statements during the October 2008 interview. Id. Investigator Huycke has testified that he was not " told," " directed," or " instructed" by anyone to conclude that plaintiff had been untruthful, and that he was not " consulted by management officials who recommended that [he] so conclude." Dep. of Shawn K. Huycke, Feb. 23, 2011, Ex. 7 to Def.'s Mot. [Dkt. # 17-7] at 157:5-22.
OPR then forwarded plaintiff's case to Scharon L. Ball, the USCP Disciplinary Review Officer (" DRO" ), for a penalty recommendation as to the truthfulness violation. Memorandum re: Review of OPR-09-039 (Special Agent Luanne Moran), Attach. 2 to Morse Decl. [Dkt. # 17-2] (" Ball Mem." ) at 1. In a June 9, 2009 memorandum, DRO Ball noted that " [t]he USCP Draft Penalty Table recommends termination of employment for a first violation" of truthfulness, and that in " recent cases involving violations of this rule . . . each violating employee received . . . termination of employment." Id. at 3. Although DRO Ball found that plaintiff's thirteen years of employment with defendant and her previous positive performance evaluations were " mitigating factor[s]," she recommended that plaintiff's employment be terminated in light of " the egregious nature of her misconduct of making untruthful statements during a Department investigation." Id. at 3-4. DRO Ball's termination recommendation was approved by plaintiff's Deputy Chief, Yancey Garner, on June 16, 2009. Morse Decl. ¶ 9; see also Ball Mem. at 1 (showing Deputy Chief Garner's signature and the word " approved" ).
In December 2009, plaintiff was given the opportunity to present her case before a four-member panel of defendant's Disciplinary Review Board (" DRB" ). See USCP DRB Final Findings and Recommendations, Attach. 3 to Morse Decl. [Dkt. # 17-2] (" DRB Findings" ); Moran Aff. ¶ ¶ 22-23. Plaintiff now states that her testimony before the DRB " was truthful" and was consistent with the version of events set forth in her affidavit in opposition to the summary judgment motion. Moran Aff. ¶ 23. In her affidavit, plaintiff maintains that she " consistently stated . . . that [she] told SA Susak to 'get the f*** out of the car' and that [she] did not, and to this day, do[es] not, recall threatening to shoot SA Susak with a BB gun." Id. ¶ 24. The DRB panel found plaintiff guilty of the truthfulness violation by a vote of three-to-one " [a]fter hearing testimony, reviewing the evidence introduced concerning aggravating and mitigating circumstances . . . and after examining [plaintiff's] personnel file and comparing any applicable penalties which have been assessed for similar infractions." DRB Findings at 3-5. The DRB panel recommended that plaintiff's employment be terminated. Id. at 6.
On January 4, 2010, plaintiff appealed the DRB panel's recommendation to Chief Morse, asserting that she was truthful during the October 2008 interview, that SSA Stonestreet's investigation was biased, and that numerous mitigating circumstances warranted a penalty less severe than termination. Letter from Matthew D. Estes re: Written Appeal of DRB Decision and Penalty Assessment, Attach. 4 to Morse Decl. [Dkt. # 17-2]. On September 16, 2011, Chief Morse denied the appeal, finding that plaintiff had failed to produce any evidence to controvert the notes memorializing her answers during the interview or to show that the investigation was biased or retaliatory. Letter from Phillip D. Morse re: Written Appeal of DRB Decision and Penalty Assessment, Attach. 5 to Morse Decl. [Dkt. # 17-2] (" DRB Appeal Denial" ). Chief Morse also noted that plaintiff " has not taken responsibility for her actions even when provided numerous opportunities to do so," and that the untruthfulness charge was " a very serious matter." Id. at 3. Accordingly, Chief Morse approved the DRB's recommendation of termination on September 16, 2011. Id. at 4. He submitted the matter to the Capitol Police Board (" CPB" ) on September 26, 2011, and the CPB unanimously concurred with the termination recommendation. Memorandum re: Termination Recommendation for Luanne Moran, Attach. 6 to Morse Decl. [Dkt. # 17-2] (" CPB Termination Mem." ). Plaintiff's employment was terminated effective October 19, 2011. Moran Aff. ¶ 2; Def.'s Mem. at 10.
II. Procedural History
Plaintiff has filed three separate suits before this Court stemming out of the series of events described above. Plaintiff filed Civil Action 09-1819 (" Moran I " ) in September 2009, and amended her complaint in January 2010 to set forth six counts against defendant. See Am. Compl., No. 09-1819 [Dkt. # 2]. Counts I and II alleged that defendant's issuance of two personal performance notes to plaintiff was retaliatory; Counts III and IV alleged that defendant's issuance of two command discipline citations to plaintiff was retaliatory; Count V alleged that defendant's suspension of plaintiff in March 2009 was retaliatory; and Count VI alleged that defendant's issuance of a third command discipline citation recommending plaintiff's termination was retaliatory. Id. The Court granted defendant's motion to dismiss five of the six counts, see Order (Oct. 27, 2011), No. 09-1819 [Dkt. # 29]; Mem. Op. (Oct. 27, 2011), [Dkt. # 30], 820 F.Supp.2d 48, and it later granted defendant's motion for summary judgment on the remaining count because plaintiff failed to offer sufficient evidence from which a reasonable juror could infer retaliation. See Order (Aug. 20, 2012), No. 09-1819 [Dkt. # 38]; Mem. Op. (Aug. 20, 2012), [Dkt. # 39], 887 F.Supp.2d 23.
On May 17, 2012, while Moran I was still pending, plaintiff filed the one-count complaint in Civil Action 12-801 (" Moran II " ). Compl., No. 12-801 [Dkt. # 1] (" Moran II Compl." ). Then, on September 20, 2012, plaintiff filed the one-count complaint in Civil Action 12-1561 (" Moran III " ), repeating the same claim advanced in Moran II. Compl., No. 12-1561 [Dkt. # 1] (" Moran III Compl." ). Both complaints alleged that defendant " unlawfully retaliated against Plaintiff for her engaging in protected activities, by, among other things, terminating Plaintiff's employment with USCP and engaging in a course of conduct with the purpose and intent of terminating Plaintiff's employment with USCP, based upon knowingly false charges." Moran II ...