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Ryan v. District of Columbia

United States District Court, District of Columbia

March 2, 2018

GENE RYAN, Plaintiff,
DISTRICT OF COLUMBIA, et al., Defendants.


          KETANJI BROWN JACKSON, United States District Judge

         Plaintiff Gene Ryan (“Ryan”) is an employee of the District of Columbia Fire and Emergency Medical Services Department (“FEMS” or “the Department”). Ryan claims that he uncovered “widespread waste, fraud, and negligence within [FEMS]” while acting as the Department's EMS Oversight Officer, and that shortly after he publicly disclosed what he perceived to be the Department's internal deficiencies, Defendant Kenneth Ellerbe-then Chief of FEMS-removed him from the oversight position and returned him to his previous position of fulltime Firefighter-Paramedic. (Am. Compl., ECF No. 5, ¶ 3.) Ryan purportedly persisted in reporting instances of wrongdoing within FEMS, after which he was allegedly subjected to “baseless charges and investigations, threats to his person and his career, and other forms of adverse employment actions[.]” (Id.)

         Ryan has filed the instant two-count complaint against Ellerbe and David Miramontes (the former Assistant Chief and Operational Medical Director of FEMS), in their official capacities as Department employees, and also against the District of Columbia (“the District”) (collectively, “Defendants”). (See Id. ¶ 1.) Ryan's complaint alleges that Defendants unlawfully retaliated against him in violation of the District of Columbia Whistleblower Protection Act (“DCWPA”), D.C. Code § 1-615.51 et seq. (see Id. ¶¶ 236-42 (Count I)), and that Defendants also deprived him of his right to freedom of speech in violation of section 1983 of Title 42 of the United States Code and the First Amendment of the United States Constitution (see Id. ¶¶ 243-54 (Count II)). Ryan agrees that this Court has original federal question jurisdiction only over his First Amendment claim; he contends that this Court has supplemental jurisdiction over his DCWPA claim under 28 U.S.C. § 1367(a). (See Id. ¶ 4.)

         Before this Court at present is Defendants' motion for summary judgment as to each of Ryan's claims. (See Defs.' Revised Mot. for Summ. J. (“Defs.' Mot.”), ECF No. 31; Mem. in Supp. of Defs.' Revised Mot. for Summ. J. (“Defs.' Mem.”), ECF No. 31-4.) With respect to Ryan's federal cause of action, Defendants point out that Ryan is required to demonstrate “that a municipal ‘policy' or ‘custom' violated the First Amendment” (Defs.' Mem. at 21), and they maintain that there is “no evidence” that any “final policy maker” here “acted in such a way to create a policy of retaliating against employees for speech[, ]” or that Ellerbe, the District's Fire Chief, “even . . . had the final say with regard to policy” (id.).[1] For the reasons explained below, this Court agrees with Defendants that Ryan has failed to demonstrate that Ellerbe was a final policymaker whose actions can be imputed to the District of Columbia, or that the District adopted a custom or practice that led to the alleged constitutional harms, or that the District adopted a policy of inaction or was otherwise deliberately indifferent to the risk that its agents would violate the constitutional rights of Ryan or others. Therefore, this Court finds that Ryan has failed to make the requisite showing of section 1983 municipal liability in support of the First Amendment claim, such that summary judgment must be granted in Defendants' favor with respect to the sole federal claim in the instant complaint.

         This Court further concludes that the equitable factors of judicial economy, convenience, fairness, and comity weigh against the retention of this case through the discretionary exercise of the Court's supplemental jurisdiction over the remaining state-law DCWPA claim. Accordingly, Defendants' motion will be GRANTED IN PART, and summary judgment will be entered in Defendants' favor with respect to the First Amendment claim (Count II), and the remaining state-law claim (Count I) will be DISMISSED WITHOUT PREJUDICE, leaving Ryan with the option of refiling the DCWPA claim in the appropriate local court, should he so choose. A separate Order consistent with this Memorandum Opinion will follow.

         I. BACKGROUND

         A. Basic Facts And Allegations[2]

         Ryan alleges he was hired by FEMS as a fulltime Firefighter-Paramedic in October of 2010 (see Am. Compl. ¶ 18), and that, in March of 2012, at the behest of Ellerbe, he assumed a new role as the Department's EMS Oversight Officer (see Id. ¶¶ 30, 32).[3] In the EMS Oversight Officer position, Ryan was “responsible for observing and reviewing EMS service delivery in the field” and “identify[ing] and recommend[ing] solutions in order to improve the Department's delivery of service.” (Pl.'s Revised Statement of Material Facts in Genuine Dispute (“Pl.'s Statement”), ECF No. 33-2, ¶ 6 (internal quotation marks and citation omitted).) In October of 2012, shortly after Ryan presented to FEMS leadership and staff his findings concerning problems with the Department's operations (see Id. ¶ 62), Ellerbe suspended the EMS Oversight Officer position until “a permanent Oversight Officer c[ould] be selected through the official District of Columbia Department of Human Resources process” (Email from Kenneth Ellerbe to Gene Ryan et al. (Oct. 13, 2012), Ex. 23 to Pl.'s Opp'n, ECF No. 33-5, at 140). Despite this suspension of the position, Ryan nonetheless continued to report on what he perceived to be deficiencies within the Department. (See, e.g., Pl.'s Statement ¶¶ 75, 83, 108, 127.)

         Ryan alleges that Ellerbe, Miramontes, and other FEMS management harassed him and retaliated against him due to the various reports and disclosures that he made, including by, inter alia, removing him as the EMS Oversight Officer (see Am. Compl. ¶¶ 3, 89); denying his requests to attend education and other training programs (see Id. ¶¶ 65, 95, 106-10, 166-67, 201-04, 226-28); failing to promote or transfer him (see Id. ¶¶ 91-94, 100-01, 119-21, 126-33, 148-49, 205-06, 210-13); requiring him to work shifts in excess of 36 consecutive hours (see Id. ¶¶ 151-53, 230); threatening him physically (see Id. ¶ 155); failing to provide him with proper pay (see Id. ¶¶ 98-99, 234-35); and subjecting him to accusations, investigations, and disciplinary actions (see Id. ¶¶ 49, 111-17, 134-47, 168-71, 196-97, 214-22). Ryan also claims that he reported the harassment and retaliation to Ellerbe and others within FEMS over a period of months. (See, e.g., id. ¶¶ 66-70, 164-65, 180-84, 189-95, 199.)

         B. Procedural History

         Ryan filed the instant amended complaint against Defendants on June 16, 2014. (See generally Am. Compl.) As to the complaint's sole federal cause of action, Ryan alleges that his disclosures of the Department's purported deficiencies constituted a lawful exercise of his “First Amendment right to speak on matters of public concern” (id. ¶ 245; see also Id. ¶ 246), and that “Defendants violated [his] First Amendment [r]ight[]” of free speech (id. ¶ 250) by taking “retaliatory actions against [him] for speaking publicly about [the Department's] mismanagement, fraud, and violations of laws” (id. ¶ 249).

         The parties have completed discovery, and Defendants have now filed a motion for summary judgment with respect to all of Ryan's claims. (See generally Defs.' Mot.; Defs.' Mem.) As relevant here, Defendants argue that, even assuming arguendo that Ryan's disclosures were protected speech, and that his First Amendment rights were violated as a result of the disclosures, the District cannot be held liable under 42 U.S.C. § 1983 because Ryan failed to prove that a “municipal ‘policy' or ‘custom'” caused those injuries, or that any “final policy maker” was involved in the alleged violations. (Defs.' Mem. at 21.) Ryan counters that Ellerbe is a final policymaker, who “adopted the policy that was the driving force behind the retaliation [Ryan] experienced following the exercise of his First Amendment right to free speech[, ]” “had knowledge of [Ryan's] disclosures[, ]” and “knew that a series of disciplinary actions were being taken against [Ryan.]” (Pl.'s Mem. in Opp'n to Defs.' Revised Mot. for Summ. J. (“Pl.'s Opp'n”), ECF No. 33, at 52.) Ryan further argues that, even though Ellerbe “[had] knowledge of the disciplinary actions repeatedly being taken against [Ryan], ” Ellerbe “did nothing” and actually “condoned the repeated attacks against [Ryan and] fail[ed] to intervene in any way.” (Id.) Thus, Ryan concludes, “[a] reasonable jury could find that Chief Ellerbe, though he may not have issued the disciplinary actions against [Ryan], was implicit [sic] in permitting other Department supervisors to retaliate against [Ryan] following his exercising his First Amendment rights.” (Id.) Defendants' motion for summary judgment is now ripe for this Court's review. (See generally Defs.' Mot.; Defs.' Mem.; Pl.'s Opp'n; Defs.' Reply to Pl.'s Revised Opp'n to Defs.' Revised Mot. for Summ. J., ECF No. 37.)


         A. Summary Judgment

         Federal Rule of Civil Procedure 56 provides that a court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A fact is material if it ‘might affect the outcome of the suit under the governing law, ' and a dispute about a material fact is genuine ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'” Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). To make this determination, courts must review all evidence in the light most favorable to the nonmoving party, and are required to draw all justifiable inferences in the nonmoving party's favor and to accept the nonmoving party's evidence as true. See Anderson, 477 U.S. at 255. However, the nonmoving party must establish more than the “mere existence of a scintilla of evidence” in support of its position. Id. at 252. Nor can the nonmoving party rely on allegations or conclusory statements; instead, it must present specific facts that would enable a reasonable jury to find it its favor. See Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999).

         B. Section 1983 Actions And Municipal Liability

         In Count II of his complaint, Ryan contends that Defendants are liable under 42 U.S.C. § 1983 for violations of his First Amendment rights. (See Am. Compl. ¶¶ 243- 54.) Notably, a section 1983 claim against municipal employees in their official capacities “is the equivalent of a suit against the municipality itself[, ]” Brown v. Corr. Corp. of Am., 603 F.Supp.2d 73, 78 (D.D.C. 2009); therefore, even with respect to the claims against Ellerbe and Miramontes, Ryan “must establish the municipality's liability for the alleged conduct[, ]” Miller v. City of St. Paul, 823 F.3d 503, 506 (8th Cir. 2016) (emphasis added) (citation omitted); see also Evangelou v. District of Columbia, 901 F.Supp.2d 159, 168 n.4 (D.D.C. 2012) (“Where the suit has been filed against the ...

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