Bowyer v. District of Columbia

• Citation: 910 F.Supp.2d 173
• Decision Date: 20 December 2012
• Docket Number: Civil Action No. 09–319 (BAH).
• Parties: Gregory BOWYER, et al., Plaintiffs, v. DISTRICT OF COLUMBIA, et al., Defendants.
• Court: U.S. District Court — District of Columbia

910 F.Supp.2d 173

Gregory BOWYER, et al., Plaintiffs,

v.DISTRICT OF COLUMBIA, et al., Defendants.

Civil Action No. 09–319 (BAH).

United States District Court, District of Columbia.

Dec. 20, 2012.

Richard E. Condit, Karen J. Gray, Government Accountability Project, Washington, DC, for Plaintiffs.

Steven J. Anderson, Patricia B. Donkor, Office of Attorney General for DC, Washington, DC, for Defendants.

MEMORANDUM OPINION

BERYL A. HOWELL, District Judge.

The plaintiffs Gregory Bowyer and Gerald Pennington are two African American firefighters in the District of Columbia who bring this action against the defendants District of Columbia (“the District”), Dennis L. Rubin, and Gary Palmer, Jr. under 42 U.S.C. § 1983 and the District of Columbia Whistleblower Protection Act, D.C. Code §§ 1–615.51, et seq. Common to all three of their claims is the plaintiffs' contention that the defendants retaliated against them for speaking out about a variety of issues within the District of Columbia Fire and Emergency Medical Services (“DCFEMS”). Over the course of nearly two years, the plaintiffs allege that they complained within and outside the DCFEMS about what they believed was racial hostility and discrimination, the mishandling and subsequent cover-up of fire investigations, and general professional misconduct. The plaintiffs now claim that their complaints were met with swift and multifarious retaliation by the defendants in the form of disciplinary actions, removal of privileges and responsibilities, and other attempts to ostracize and isolate the plaintiffs from the rest of their unit. All three defendants have moved for summary judgment.

I. BACKGROUND

The plaintiffs are both “career firefighter[s] and fire investigator[s] currently employed by the DCFEMS.” Compl. for Declaratory, Injunctive, & Monetary Relief & Jury Demand (“Compl.”) ¶¶ 7–8, ECF No. 1. In particular, both of the plaintiffs worked for many years, beginning in 2001, as fire investigators in the Fire Investigations Unit (“FIU”), id. ¶ 12, which is a specialized unit within the DCFEMS responsible for investigating the origins and causes of all fires that occur in the District, investigating arsons, and enforcing compliance with fire-related laws and regulations. ¹

All parties agree that from 2003 to 2007, the racial makeup of the FIU was 100% African American. Def. D.C.'s Statement of Undisputed Facts (“D.C. Facts”) ¶ 8, ECF No. 49–1; Pls.' Statement of Disputed Facts in Response to D.C. (“Pls.' D.C. Facts”) ¶ 8, ECF No. 55–1.² In April 2007, defendant Rubin became the Fire Chief of DCFEMS, and Rubin promoted defendant Palmer to the position of Deputy Chief and Fire Marshal. D.C. Facts ¶ 9; Pls.' Mem. of P. & A. in Opp'n to Def. D.C.'s Mot. Summ. J. (“Pls.' D.C. Opp'n”) at 2, ECF No. 55. The plaintiffs claim that defendant Rubin “implemented a race based policy under which he assigned more white personnel to the FIU to increase the percentage of white investigators.” Pls.' D.C. Facts ¶ 9. To effectuate this policy, the plaintiffs claim that the defendants “relaxed the requirements and standards for promotion to the FIU in order to ensure the addition of the white candidates it assigned to the unit.” Id. More particularly, the plaintiffs claim that “[n]one of the white firefighters whom the Department assigned to the [FIU] pursuant to this policy met the qualification requirements for membership in the [FIU],” and the white firefighters in the FIU “have failed portions of the written, physical, or psychological examinations required for assignment to the position of fire investigator.” Compl. ¶ 13. With respect to the alleged relaxation of requirements and standards in the FIU, the plaintiffs claim specifically that the defendants (1) lowered the minimum number of years of experience required to become an investigator, from five years to three years; (2) increased the maximum allowable body fat percentage for fire investigators; (3) loosened the criminal background checks and psychiatric checks for new investigators; (4) changed the DCFEMS shift work and division to attract white candidates; (5) eliminated the formerly required 180–day investigator-training course and exam; and (6) assigned overtime disproportionately to white members of the FIU. Pls.' D.C. Opp'n at 36–37.

As a result of this alleged policy, the plaintiffs claim that the presence of African Americans in the FIU after 2007 dropped precipitously to 40%. See Compl. ¶ 15; see also Pls.' Ex. 19, ECF No. 55–2 (purporting to list “Active Members in DCFEMS FIU”). The plaintiffs allege that “[t]he policy of assigning new personnel to the FIU was based solely on race,” that “all of the supervisors in FIU are [now] white,” and that, in addition to the racial composition, the defendants' alleged policy has “also resulted in a substantial decline in DCFEMS' ability to determine accurately the cause and origin of fires and to perform accurate follow-up investigations of potential arsons ... given the assignment of unqualified personnel [to] this unit.” Compl. ¶ 15. It is this alleged “assignment of unqualified [white] firefighters to important roles in FIU” and the resulting alleged “serious problems with fire investigations” that is the starting point for the events that are at issue in this case. See id. ¶¶ 16–17.

The plaintiffs eventually filed internal Equal Employment Opportunity (“EEO”) complaints with the DCFEMS in June 2008 related to this alleged discriminatory policy, in which the plaintiffs complained of racial discrimination in the FIU, race-based assignments, and preferential treatment for white investigators. See id. ¶ 37; see also Pls.' Exs. 37–38, ECF No. 55–2. The plaintiffs also say that they repeatedly raised concerns to their superiors about the racial disparities within the FIU and the deleterious effects that the disparities were having upon fire investigations. See, e.g., Pls.' D.C. Opp'n at 18–19.

Beginning sometime in 2007, in addition to the explicitly race-based issues, the plaintiffs allege that they began raising concerns to their superiors about a broad range of other perceived improprieties within the DCFEMS, and the FIU in particular. See, e.g., Pls.' D.C. Opp'n at 18–26. The plaintiffs allege that they raised their concerns to “their direct supervisor Sergeant Phillip Proctor, Defendant Palmer, Defendant Rubin, and Assistant Fire Chief Brian Lee.” Compl. ¶ 17. The Court will discuss in further detail the issues that arose within the FIU, how the plaintiffs say they spoke out about those issues, and the alleged retaliation that followed.

A. Alleged Misconduct Within the FIU

During 2006, a number of firefighters were temporarily detailed to the FIU, and DCFEMS hired two outside instructors to provide instruction on fire investigation to the newly detailed firefighters. Def. D.C.'s Supplemental Statement of Undisputed Facts (“D.C. Supp. Facts”) ¶¶ 21–24, ECF No. 59–2. These outside instructors provided two weeks of instruction and administered an exam to the firefighters at the end of the two weeks. Id. ¶ 24. Sgt. Proctor also provided an additional week of training but decided not to administer any exam. Id. ¶ 25. Before deciding not to administer an exam, Sgt. Proctor inadvertently left a copy of an exam he planned to administer in a computer room printer, which was then obtained by a number of the detailed firefighters. Id. ¶ 26. After learning of this incident, Sgt. Proctor decided not to administer a test; informed his colleague, Lieutenant Robert Pearson, of the incident; and as a result Lt. Pearson administered a test to the detailed firefighters that differed from the one prepared by Sgt. Proctor. Id. The defendants maintain that, in addition to the fact that the administered test was different than the test obtained by the firefighters, the administered test also “had no bearing on whether these detailed firefighters would be admitted into FIU” and did not “affect[ ] the assignment or pay of the temporary fire investigators.” Id. ¶¶ 27, 36. A subsequent internal investigation of the matter concluded that Sgt. Proctor did not assist the incoming fire investigators in cheating on the exam. Id. ¶ 34. Nevertheless, the plaintiffs say that they complained to defendant Palmer that Sgt. Proctor had “helped white candidates cheat on the examinations required to become fire investigators.” Pls.' D.C. Opp'n at 4; Compl. ¶ 18.

In addition to the alleged cheating incident, the plaintiffs say that they complained to their superiors at the DCFEMS in 2007 about the conduct of Lieutenant Craig Duck, who was at that time the supervisor of the FIU. See Compl. ¶ 19. According to the plaintiffs, Lt. Duck was engaging in two separate types of misconduct. First, he was allegedly attempting to create a hostile work environment for African Americans in the FIU by referring to the white investigators as his “team,” reassigning follow-up investigations exclusively to these white investigators, and pressuring white investigators to stop associating with “Pennington's team,” which the plaintiffs claim referred to the African American investigators. Id. ¶¶ 19–20. The plaintiffs allege that Lt. Duck's behavior “created an atmosphere of tension and mistrust within the FIU,” which allegedly made it “nearly impossible for [the plaintiffs] to successfully complete the origin-and-cause investigations to which they were assigned.” Id. ¶ 20. The plaintiffs specifically contend that they complained to Lt. Duck directly on September 28, 2007, about the preferential treatment being given to white investigators, but the plaintiffs allege that Lt. Duck “denied Plaintiffs' accusations, and the preferential treatment of white members of the FIU continued.” Id. ¶ 21.

The plaintiffs also say that they complained about instances of what could be termed fraud, waste, or abuse by Lt. Duck. In June 2007, the plaintiffs allege that they complained to defendant Palmer, Sgt. Proctor, and Assistant...