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Ross v. United States Capitol Police

United States District Court, District of Columbia

June 30, 2016

LEONARD ROSS, Plaintiff,


          KETANJI BROWN JACKSON United States District Judge.

         In this employment-discrimination lawsuit, Plaintiff Leonard Ross asserts that Defendant United States Capitol Police (“USCP” or “Capitol Police”)-his prior employer-forced him to retire and otherwise subjected him to unfavorable treatment due to his race and in retaliation for his prior engagement in protected activity. Ross is a plaintiff in an unrelated, longstanding civil-rights lawsuit against USCP; in the instant case, he alleges that USCP made a discriminatory and retaliatory decision to place him on administrative leave, rather than a less-restrictive duty status, after a domestic dispute he had with his wife in late June of 2012. Then, nearly one year later, USCP allegedly sent Ross a notice of proposed termination that cited a soon-to-lapse restriction on his use of a firearm as cause, and after he unsuccessfully attempted to contest the proposed termination, USCP purportedly led him to believe that he could retire in good standing in lieu of being fired-and thereby retain access to his badge and benefits such as payment for accrued leave-only to inform him several weeks after he opted to retire that such was not the case. Ross has filed the instant complaint against USCP to redress this allegedly impermissible series of employment-related actions. He makes two claims: race discrimination (Count I) and retaliation (Count II), both brought under the Congressional Accountability Act of 1995 (“CAA”), 2 U.S.C. § 1311 et seq.

         Before this Court at present is USCP’s motion to dismiss Ross’s complaint, or in the alternative, motion for summary judgment. (See Def.’s Mot. to Dismiss, or, in the Alternative, Mot. for Summ. J. (“Def.’s Mot.”), ECF No. 11, 1-2); Def.’s Mem. in Supp. of Def.’s Mot. (“Def.’s Mem.”), ECF No. 11, 3-33). For the reasons explained below, this Court will decline USCP’s invitation to treat its pending motion as one for summary judgment at this early stage of the case. With respect to the merits of the motion, this Court concludes that certain of Ross’s claims-specifically, his claims that USCP improperly placed him on administrative leave and improperly refused to pay his accrued leave upon his retirement-must be dismissed under Federal Rule of Civil Procedure 12(b)(1) because they are based on events for which Ross has failed to satisfy certain non-waivable jurisdictional prerequisites; however, Ross’s claims of race discrimination and retaliation stemming from USCP’s decision to terminate his employment must be allowed to proceed to discovery, because those claims were adequately exhausted and the related allegations of fact that appear in Ross’s complaint are sufficient to state a claim for discrimination and retaliation in violation of the CAA.

         Accordingly, USCP’s motion will be GRANTED IN PART and DENIED IN PART, and the claims over which the Court lacks jurisdiction will be DISMISSED. A separate order consistent with this Memorandum Opinion will follow.

         I. BACKGROUND

         A. Relevant Facts

         The following recitation is based on the allegations in Ross’s complaint, as well as “documents attached as exhibits or incorporated by reference in the complaint, or documents upon which the plaintiff’s complaint necessarily relies[.]” Page v. Mancuso, 999 F.Supp.2d 269, 275 (D.D.C. 2013) (internal quotation marks and citation omitted).

         Leonard Ross was employed as a Capitol Police officer from 1984 to 2013. (See Compl., ECF No. 1, at 2, ¶¶ 7-8.)[1] During this period of time, Ross, who is an African-American man, pursued litigation against USCP on two separate occasions: first, in 2001, he was a proposed class member in a class action that a group of current and former African-American Capitol Police officers filed in the U.S. District Court for the District of Columbia (see Id. at 3, ¶ 8); see also Blackmon-Malloy v. U.S. Capitol Police Bd., No. 01-cv-02221 (Blackmon-Malloy class action”); and second, in 2002, he filed an individual action against the Capitol Police Board alleging employment discrimination, which was consolidated with the Blackmon-Malloy class action in 2005. (See Compl. at 3-4, ¶¶ 8-10.) The Blackmon-Malloy class action continues today, and during all periods relevant here, Ross has been named as a complainant in that action’s governing complaint. (Id.); see also Joint Fourth Am. Class Action Compl., ¶¶ 56, 63, Blackmon-Malloy v. U.S. Capitol Police Bd., No. 01-cv-02221, (D.D.C. May 10, 2010), ECF No. 278 (referencing Ross); Proposed Joint Fifth Am. Consolidated Class Action Compl., ¶¶ 217-224, Blackmon-Malloy v. U.S. Capitol Police Bd., No. 01-cv-02221, (D.D.C. July 10, 2013), ECF No. 396-2 (doing the same).[2]

         The pertinent events for the purpose of the instant action commenced in June and July of 2012. On June 30, 2012, Ross had a domestic dispute with his ex-wife. (See Compl. at 5, ¶ 16.) According to the complaint, USCP placed Ross on administrative leave on July 3, 2012, after he self-reported that incident, despite his requests to be placed on “light duty status” in lieu of administrative leave. (Id. at 6, ¶¶ 21-22.) Then, on July 13, 2012, a protective order (dated July 9) that was rooted in the domestic dispute was served on Ross, and, among other things, the order prohibited him from possessing a firearm for an entire year-until July 9, 2013. (See Id. at 5, ¶ 16.)

         Nearly one year later, on June 27, 2013, USCP’s Human Resources division (“HR”) sent Ross a memo notifying him that, “[d]ue to [his] inability to carry a firearm[, ]” HR was recommending that his employment be “terminated for [his] failure to meet the conditions of employment.” (Termination Recommendation, Ex. 10 to Pl.’s Opp’n to Def.’s Mot., ECF No. 12-14, at 2; see also Compl. at 9-10, ¶ 29 (discussing termination recommendation letter).)[3] The memo further explained that Ross had the option of retiring “in lieu of involuntary separation prior to the effective date of the termination action[, ]” and that he would “remain in an administrative leave status pending final approval of [his] termination of employment.” (Termination Recommendation at 2.) The memo also stated that Ross could appeal the Human Resources division’s termination recommendation to Police Chief Kim C. Dine. (Id.)

         Ross elected to appeal, and on August 15, 2013, the Chief determined that there was no “basis in the record to concur with Ross’s argument[]” that his employment should not be terminated. (Letter Regarding Appeal of Recommendation for Termination of Employment (“Appeal Decision Letter”), Ex. 14 to Pl.’s Opp’n to Def.’s Mot., ECF No. 12-16, at 2; see also Compl. at 10-11, ¶ 34 (discussing and quoting from the Chief’s decision letter).) In the letter, the Chief emphasized that the proposed termination stemmed from Ross’s inability to perform his duties because he could not carry a firearm, and with respect to the fact that the protective order had expired at that point and thus no longer served as an impediment to Ross’s ability to possess a firearm, the letter stated that “[a]nytime an employee is unable to perform the essential functions of the position, the fact that he or she can now perform the duties is irrelevant” because the “issue is whether the essential functions of the position could be performed during the period in question.” (Appeal Decision Letter at 3.) Concluding that Ross’s “termination from employment . . . [was] the only appropriate personnel action[, ]” the letter explained that the Chief’s decision to move forward with the termination of Ross’s employment would be sent to the Capitol Police Board, which, by statute, had thirty days from receipt of the decision to approve or disapprove the determination. (Id. at 4); see also 2 U.S.C. § 1907(e)(1)(B). At the end of the letter, the Chief also reminded Ross that he could “of course, opt to resign or retire at any time prior to final approval by the Capitol Police Board.” (Appeal Decision Letter at 4.)

         After receiving Chief Dine’s letter, Ross visited Human Resources to discuss next steps. In the complaint, Ross avers that an HR employee told him that he would leave in good standing and would retain certain benefits-such as a “Retired Badge” and “Retirement Credentials”-if he opted to retire. (Compl. at 11-12, ¶ 38.) Ross alleges that he elected to retire, rather than waiting to be terminated, based on that representation, and that, when he did so, he was permitted to retain the retirement credentials and badge that are associated with retiring in good standing. (See id.)

         However, on September 13, 2013, HR sent Ross a letter informing him that, “[g]iven your retirement in lieu of termination, as sustained by the Capitol Police Board, you did not retire in good standing[, ]” and therefore, “the Retirement Credentials were issued to you in error and need to be returned.” (Letter from Jacqueline J. Whitaker to Leonard Ross (“Credential Return Letter”), Ex. 19 to Pl.’s Opp’n to Def.’s Mot., ECF 12-21, at 2; see also Compl. at 12, ¶ 39 (referencing and discussing the letter requesting the return of his credentials).) The letter also stated that Ross’s accrued annual leave payment would not be sent to him until he had returned the badge and credentials. (See Credential Return Letter at 2; see also Compl. at 12, ¶ 39-40.) According to the complaint, Ross refused to return the items, and as a result, he did not receive payment for more than 250 hours of accrued annual leave-an amount he says totals more than $12, 600. (See Compl. at 12, ¶ 40.)

         B. Procedural History

         On August 15, 2014, Ross filed the instant two-count complaint, claiming race discrimination and retaliation in violation of the CAA. In the complaint, four discrete acts of USCP are alleged as the basis for the discrimination and retaliation contentions, and all four acts are purportedly applicable to both claims: (1) the “deci[sion] to terminate [Ross] based on his inability to carry a firearm due to a Civil Protective Order and thereby force his involuntary retirement”; (2) the “fail[ure] to conduct and complete a timely and appropriate investigation into” the conduct leading to the protective order, which allegedly would have cleared him; (3) the “fail[ure] to grant [Ross’s] request to be assigned light duty in lieu of administrative leave”; and (4) the finding that he did not retire in good standing and consequent refusal to pay his annual-leave lump sum. (Id. at 13, ¶¶ 4-7; id. at 14, ¶¶ 12-15.)

         On January 16, 2015, USCP filed a motion to dismiss the complaint, or in the alternative, for summary judgment, arguing that (1) Ross’s failure to satisfy certain jurisdictional prerequisites deprives this Court of subject-matter jurisdiction over every claim in the complaint except USCP’s decision to terminate his employment and allegedly force his retirement (see Def.’s Mot. at 1); (2) “a recommendation for termination is not an adverse action” and Ross has failed to allege that he suffered any such action because he “opted to retire before a final decision could be made” (id. at 1- 2 (emphasis in original); and (3) in the alternative, USCP is entitled to summary judgment on the claims that are based on Ross’s termination and the withholding of his annual leave, in light of evidence that was submitted contemporaneously with the motion and that, according to USCP, demonstrates that it had a “legitimate business reason” for these actions (id. at 2).

         Ross has opposed all of these dismissal arguments, but has also specifically disclaimed any desire to rely on his failure-to-investigate assertions as independent grounds for relief. (See Pl.’s Opp’n to Def.’s Mot. (“Pl.’s Opp’n”), ECF No. 12, at 13- 14.) With respect to USCP’s request for summary judgment, Ross has also asserted that, due to the many “factual conflicts” that will “require credibility determinations” in this case, “Defendant is not entitled to summary judgment and discovery in this matter should proceed.” (Id. at 23.)

         USCP’s motion is now ripe for decision. (See Def.’s Reply, ECF No. 13; see also Pl.’s Sur-Reply in Opp’n to Def.’s Mot., ECF No. 16.)


         A. Federal Rules Of Civil Procedure 12(b)(1) And 12(b)(6)

         A defendant may request that a complaint be dismissed for lack of subject-matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). When a defendant deploys Rule 12(b)(1), it is the plaintiff’s burden to establish that the court has jurisdiction by a preponderance of the evidence, see Delta Air Lines, Inc. v. Exp.-Imp. Bank of U.S., 85 F.Supp. 3d 250, 259 (D.D.C. 2015) (citing, inter alia, Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)); see also Moran v. U.S. Capitol Police Bd., 820 F.Supp.2d 48, 53 (D.D.C. 2011), and if the plaintiff fails to do so, the court must dismiss the complaint, see, e.g., Moran, 820 F.Supp.2d at 55. Although the reviewing court must “treat the complaint’s factual allegations as true” and “grant plaintiff[s] the benefit of all inferences that can be derived from the facts alleged[, ]” the “factual allegations in the complaint” receive “closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim.” Delta Air Lines, 85 F.Supp. 3d at 259 (first alteration in original) (internal quotation marks and citation omitted). Furthermore, unlike the Rule 12(b)(6) context, the Court “may consider materials outside the pleadings” in resolving the Rule 12(b)(1) question. Id. (internal quotation marks and citation omitted).

         A motion under Rule 12(b)(6) raises the question of whether the complaint contains “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Harris v. D.C. Water & Sewer Auth., 791 F.3d 65, 68 (D.C. Cir. 2015) (internal quotation marks omitted) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The Supreme Court has explained that the key to making this evaluation is determining whether the allegations are sufficient to permit a “reasonable inference that the defendant is liable for the misconduct alleged[.]” Matrixx Initiatives, Inc. v. Siracusano, 563 U.S. 27, 46 (2011) (internal quotation marks and citations omitted). In this regard, the “court must accept as true all of the allegations contained in a complaint[, ]” but this tenet “is inapplicable to legal conclusions.” Harris, 791 F.3d at 68 (internal quotation marks omitted) (quoting Iqbal, 556 U.S. at 678). This means that “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (alteration in original) (internal quotation marks omitted) (quoting Iqbal, 556 U.S. at 678).

         Unlike Rule 12(b)(1), Rule 12(b)(6) “places th[e] burden on the moving party” to show that the complaint is legally insufficient. Cohen v. Bd. of Trustees of the Univ. of the Dist. of Columbia, 819 F.3d 476, 481 (D.C. Cir. 2016) (citing 5B Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (3d ed. 2015)). And when analyzing a motion to dismiss brought under Rule 12(b)(6), the court must limit its analysis to the four corners of the complaint, as well as any “documents attached as exhibits or incorporated by reference in the complaint, or documents upon which the plaintiff’s complaint necessarily relies[.]” Page, 999 F.Supp.2d at 275 (internal quotation marks and citations omitted).

         B. Motions Styled As “Motions To Dismiss, Or In The Alternative, For Summary Judgment” In Employment-Discrimination Cases

         In the instant case, Defendant USCP has filed a motion to dismiss under Rules 12(b)(1) and 12(b)(6), and has also asked, alternatively, for this Court to treat its motion as one for summary judgment under Rule 56. (See Def.’s Mot. at 1-2.) A motion for summary judgment requires the movant to “show[] that there is no genuine dispute as to any material fact and [that] the movant is entitled to judgment as a matter of law[, ]” Fed.R.Civ.P. 56(a), which is a hurdle that is typically mounted through the submission of declarations and other evidence. To this end, USCP points to various documents from its own files and argues that entry of summary judgment in its favor should be granted, even at this early stage of the litigation, because its evidence establishes that USCP had legitimate business reasons for recommending that Ross’s employment be terminated and for withholding his accrued annual leave. (See Def.’s Mot. at 2.) Notably, the decision regarding whether or not to treat a motion to dismiss as one for summary judgment “is committed to the sound discretion of the trial court[, ]” see Page, 999 F.Supp.2d at 275-76 (internal quotation marks and citations omitted); s ...

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