Bowie v. Gonzales
| Decision Date | 04 May 2006 |
| Docket Number | Civil Action No. 03-948 (RCL). |
| Citation | 433 F.Supp.2d 24 |
| Parties | David M. BOWIE, Plaintiff, v. Alberto GONZALES, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
David M. Bowie, Fairfax, VA, pro se.
Charlotte A. Abel, United States Attorney's Office, David A. Jackson, Office of the Attorney General, Washington, DC, for Defendants.
This case comes before the Court on plaintiff's Motion [72] for Summary Judgment, or in the Alternative, Motion for Partial Summary Judgment, filed on behalf of David M. Bowie, appearing pro se, as well as defendants' Motion [73] for Summary Judgment, filed on behalf of Alvin Wright, Jr., Karen Branson, Anthony A. Williams, Charles C. Maddox, Austin A. Andersen, and Jerome A. Campane. Pursuant to Order [58] denying plaintiff's Motion [45] for Leave to File Second Amended Complaint, six claims remain under which the plaintiff proceeds: [1] wrongful termination against all defendants, pursuant to common law and 42 U.S.C. § 1983,1 [2] First Amendment claims against all defendants, [3] under the District of Columbia Whistleblowers Protection Act ("WPA"), D.C.Code § 2-223.01, claims against the District of Columbia, [4] retaliation in violation of the District of Columbia Human Rights Act ("DCHRA"), D.C.Code § 1402.61, against all defendants, [5] aiding and abetting retaliation in violation of the DCHRA, D.C.Code § 2-1402.62, against all defendants, and [6] unlawful retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq.
For the reasons set forth herein, plaintiff's motion will be denied and defendant's motion will be granted in part and denied in part.
Plaintiff was employed from November 1997 to August 2002, as the Assistant Inspector General for Investigations ("AIGI") for the District of Columbia Office of Inspector General ("DCOIG"). (Compl. 7.) Terrence Wyllie was hired in February of 1998. (Pl.'s Mot. 35.) During his employment, on June 21, 1999, plaintiff, Inspector General ("IG") Charles C. Maddox, and Deputy Inspector General Austin A. Andersen, attended a meeting at the Federal Bureau of Investigations ("FBI") Washington Field Office ("INFO") Headquarters. WFO's Assistant Director in Charge, Jimmy C. Carter, also attended. At the end of the meeting, Carter took Maddox aside for a private conversation, where he "indicated that the FBI would not make its resources available to Maddox's office in any police corruption case because, in Carter's view, [Emmanuel] Johnson [a member of the IG's office] had a conflict of interest that might compromise his work."2 Johnson v. Maddox, 270 F.Supp.2d 38, 40 (D.D.C.2003).
In February 2000, plaintiff participated in a meeting with Maddox, Andersen, and plaintiffs deputy at the time Alfred Miller, regarding the unsatisfactory performance of Emmanuel Johnson. (Compl. 13.) Remedial measures were considered, but in the end, the decision was made to dismiss Johnson. (Compl. 16-17.) Plaintiff disagreed with this decision, but informed Johnson of his termination. (Id.)
On March 28, 2000, Johnson filed a discrimination complaint against Maddox and Carter, alleging wrongful termination. (Compl. 24.) Gail Davis, Deputy Attorney General for the Office of the Attorney General for the District of Columbia, was assigned, in May of 2000, to represent and draft a position statement for DCOIG in response to the discrimination complaint filed by Johnson. (Pl.'s Mot. Summ. J. Ex. 20.) Davis, unable to meet with plaintiff, drafted an affidavit regarding the February meeting on Johnson's performance based on facts learned from Maddox and Andersen. (Id.)
Plaintiff, dissatisfied with the accuracy of the draft provided by Davis, prepared his own affidavit, which he submitted to Karen Branson, DCOIG General Counsel. (Compl. 27.) Davis decided to submit the position statement without plaintiffs affidavit, as "it included too much information that was not relevant to the issue at hand," and which the plaintiff was unwilling to eliminate. (Pl.'s Mot. Summ. J. Ex. 20.)
In June 2002, in preparation for a mandatory peer review required by DCOIG's enabling statute, several DCOIG divisions began internal preparations. (Defs.' Mot. Summ. J. 9.) Plaintiffs division, the Investigations Division ("ID") did not. (Id.) In response, and based on the scope of previously identified problems in that division, Maddox directed the Inspections and Evaluations Division ("I & E") to conduct an internal re-inspection (a repeat of an inspection that took place in 1999). (Id.) The re-inspection occurred June 1 to July 12, 2002. (Id.) This inspection had several irregular characteristics (as compared to other I & E inspections), in that it was: unexpected, rushed, not completed in accordance with normal procedures, and did not include ID leadership. (Pl. Mot. Summ. J. Ex. 31 at 2.) Further, neither the inspectors nor the ID leadership were given an opportunity to see the report until IG Maddox's briefing. (Id.)
On July 30, 2002, Andersen and Jerome Campane, Deputy Inspector General for Investigations, informed plaintiff that he was being terminated from DCOIG, with his last day of work to be August 2, 2002. (Compl. 48-49.) Plaintiff's official separation date was August 16, 2002. Plaintiff filed an Equal Employment Opportunity Commission ("EEOC") claim on February 25, 2003. (Compl. 49.)
Summary judgment is warranted where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." FED.R.CIV.P. 56(c). The presence of disputed facts alone is insufficient to defeat summary judgment; "the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue is genuine if there is evidence on which a jury could base a verdict for the nonmoving party. Id. at 248, 106 S.Ct. 2505. A fact is material if the dispute over it could determine the outcome of the suit under governing law. Holcomb v. Powell, 433 F.3d 889, 895 (D.C.Cir.2006).
The party seeking summary judgment bears the responsibility of demonstrating that no genuine issues of material fact are in dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party is entitled to summary judgment as a matter of law if the party opposing summary judgment "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322, 106 S.Ct. 2548. In making this determination, "the inferences to be drawn from the underlying facts ... must be viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)).
To the extent that he seeks unliquidated damages,4 plaintiffs claim against the District of Columbia based on wrongful termination is barred by the mandatory notice provision of D.C.Code § 12-309. See Beeton v. District of Columbia, 779 A.2d 918, 925-26 (D.C.2001) (); see also McRae v. Olive, 368 F.Supp.2d 91, 95 (D.D.C.2005) (citing District of Columbia v. Dunmore, 662 A.2d 1356, 1359 (D.C. 1995)); Gwinn v. District of Columbia, 434 A.2d 1376, 1378 (D.C.1981). The Code provides in relevant part:
An action may not be maintained against the District of Columbia for unliquidated damages to person or property unless, within six months after the injury or damage was sustained, the claimant ... has given notice in writing to the Mayor of the District of Columbia of the approximate time, place, cause, and circumstances of the injury or damage.
D.C.Code § 12-309 (2006) (emphasis added). The statute's purpose is "to protect the District of Columbia against unreasonable claims and to assist it in the defense of the public interest where claims are made within the 3-year statute of limitations but so long after the event that it is impossible for the District of Columbia to obtain evidence" for the resulting litigation. George v. Dade, 769 A.2d 760, 764 (D.C.2001) ().
The question whether plaintiff's notice to the District complied with § 12-309 is one of law. Wharton v. District of Columbia, 666 A.2d 1227, 1230 (D.C.1995) (citing Washington v. District of Columbia, 429 A.2d 1362, 1366 n. 15 (D.C.1981) (en banc)). The requirements of the statute are to be strictly construed. See Winder v. Erste, 2005 WL 736639, *10, 2005 U.S. Dist. LEXIS 5190, *29-30 (D.D.C.2005) (); District of Columbia v. Ross, 697 A.2d 14, 19 n. 6 (D.C.1997) (); Campbell v. District of Columbia, 568 A.2d 1076, 1078 (D.C.1990) (). As a matter of law in the present case the statute's requirements have not been met, as at no point does plaintiff assert written notice was given. Therefore, summary judgment must be granted in favor of the District of Columbia on plaintiffs common law claim of wrongful termination.
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