O'Donnell v. Barry
| Decision Date | 28 July 1998 |
| Docket Number | No. 97-7129,97-7129 |
| Citation | 331 U.S. App. D.C. 272,148 F.3d 1126 |
| Parties | 74 Empl. Prac. Dec. P 45,629, 331 U.S.App.D.C. 272, 14 IER Cases 1510 Philip A. O'DONNELL, Appellant, v. Marion S. BARRY, Jr., et al., Appellees. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (No. 96cv02195).
Robert C. Seldon, Washington, DC, argued the cause for appellant, with whom Joanne Royce was on the briefs. Sarah L. Levitt entered an appearance.
Donna M. Murasky, Assistant Corporation Counsel, Washington, DC, argued the cause for appellees, with whom John M. Ferren, Corporation Counsel, and Charles L. Reischel, Deputy Corporation Counsel, Washington, DC, were on the brief. Jo Anne Robinson, Principal Deputy, entered an appearance.
Before: WALD, SENTELLE and RANDOLPH, Circuit Judges.
Opinion for the Court filed by Circuit Judge WALD.
Philip O'Donnell, a career officer in the District of Columbia's Metropolitan Police Department, has brought suit against the District of Columbia, the Mayor, and the Chief of Police. O'Donnell claims that his transfer from the job of Deputy Chief of Police for Investigative Services to the (less desirable) job of head of the Department's Property Division, followed by his demotion to the rank of captain and the position of district patrol supervisor, violated his free speech and due process rights under the Constitution. The district court dismissed all of O'Donnell's claims, except for one of the due process claims, as to which it granted summary judgment; O'Donnell has appealed. We affirm, except as to one element of O'Donnell's First Amendment claim, which we believe requires further factual development.
O'Donnell's account of the events surrounding his transfer and demotion is set out below. Many of the facts he recounts are fiercely contested by the defendants; however, because the plaintiff's claims must be taken as true on a motion to dismiss, and the facts on the basis of which the district court granted summary judgment are not contested, we assume them to be true for purposes of the appeal as well.
O'Donnell began his career with the Police Department almost three decades ago, in 1969. Over the years, he rose through the ranks, until, in January 1995, he was appointed D.C. Deputy Chief of Police for the Investigative Services Bureau of the D.C. Police Department. This was a very senior position; O'Donnell had authority over offices specializing in a range of high-profile criminal matters, including the Homicide Branch (a fact whose importance will soon become clear). In his new position, O'Donnell reported to the then Assistant Chief of Police for the Patrol Services Bureau, Larry Soulsby; Soulsby, in turn, reported directly to the Chief of Police. O'Donnell avers in his complaint that he did an excellent job during his tenure, making a number of important reforms in the work of the offices under his command.
The first signs of trouble came in May of 1995, when Soulsby called O'Donnell into his office to discuss a newspaper article that reported that the Police Department had failed to resolve a total of 123 unexplained deaths of African-American women over a ten-year period. The article had caused considerable public controversy, and Soulsby was "incensed" because he believed that the story had been leaked by sources within the Police Department--specifically, by Captain William J. Hennessy, the head of the Homicide Branch, who was O'Donnell's immediate subordinate. O'Donnell denied that Hennessy was the source of the news report, and added that the Homicide Branch was aware of the unsolved homicides and was already conducting an investigation. According to O'Donnell, Soulsby "responded angrily that the article was untrue and ordered that nothing should be done to investigate the allegations." O'Donnell strongly disagreed, noting that a serial killer might be involved; at a routine staff meeting later in the day, the Chief of Police, Fred Thomas, ordered an investigation.
Two months later, Thomas retired and Soulsby was appointed interim chief of police. The week after his appointment, O'Donnell sent him a long memorandum, titled "Setting Priorities for the Metropolitan Police Department," which ranked crime-related issues and proposed solutions. Soulsby did not respond; O'Donnell claims that this was because Soulsby wished to keep things quiet pending his confirmation as Chief of Police by the D.C. City Council.
Soon afterwards, Soulsby told O'Donnell that Mayor Marion Barry was blocking O'Donnell's promotion to Assistant Chief of Police (a promotion Soulsby had promised to secure). Soulsby said that the Mayor believed that O'Donnell was a racist; there was, O'Donnell avers, no reason that anyone should believe that this was true. O'Donnell then spent several months off the job because of a heart condition. When he returned, in September 1995, he learned that he was to be transferred to a less responsible position, that of Commander of the Property Division. (O'Donnell did, however, retain his rank as Deputy Chief of Police.) Once again, Soulsby said that the transfer was because Barry thought O'Donnell was a racist.
Soulsby also reassigned Captain Hennessy to a less responsible job, that of Night Supervisor. According to O'Donnell, Soulsby then told the media in an off-the-record statement that Hennessy had been transferred because he was under investigation and likely to be indicted for violating the civil rights of a black suspect. O'Donnell says that when Hennessy learned of this claim he confronted Soulsby, who admitted he had lied. Hennessy apparently taped this conversation, and later told Soulsby that he had done so. As a result, the two allegedly entered into a pact (which O'Donnell refers to as the "Soulsby-Hennessy agreement") under which Hennessy got a better job (but not in the Homicide Branch), in exchange for silence, especially at Soulsby's pending confirmation hearing. Soulsby was confirmed as Chief of Police in December of 1995.
In the meantime, according to O'Donnell, he was doing an exemplary job of running the Property Division. In his new position, he was in charge of the Department's facilities for storing property and automobiles, and supervised personnel at a police drug laboratory. O'Donnell wrote a number of reports about problems at the Division, which Soulsby again ignored; O'Donnell nevertheless implemented a number of the suggestions that they contained.
On May 9, 1996, Soulsby made a speech at the District's Ballou High School in which he claimed that the backlog of 123 unsolved cases involving African-American women had only been discovered after O'Donnell and Hennessy had been transferred out of their jobs. O'Donnell protested to Soulsby orally and in writing, and ultimately said that he would retire. Shortly thereafter, the news media learned about the Soulsby-Hennessy agreement, and Hennessy's tape of his conversation with Soulsby; subsequent news reports were highly critical of the alleged agreement, and of Soulsby's performance as Chief of Police. For example, on July 14, 1996, the CBS television program 60 Minutes ran a report that said that the Police Department had performed poorly under Soulsby and that (in O'Donnell's words) Soulsby had "low credibility." The report also criticized the Mayor's poor response to the scandal surrounding the Soulsby-Hennessy agreement, and said that senior executives in the Homicide Branch believed that the reassignment of Captain Hennessy was unjustified and had damaged the Police Department. There were many demands for Hennessy and Soulsby to release the tape. Soulsby called on Hennessy to release the tape, and Hennessy, somewhat inexplicably, declined to do so until Soulsby released him from their agreement. Senior D.C. officials (including a D.C. Council member and the Corporation Counsel) eventually criticized Soulsby for entering into the claimed agreement with Hennessy, and Soulsby publicly apologized.
On July 18, 1996, in the midst of these events, the Washington Post published a letter to the editor by O'Donnell, which said:
I am writing to confirm the credibility of Capt. William L. Hennessy of the Metropolitan Police Department. I currently am employed by the Metropolitan Police Department as a deputy chief of police assigned to the technical services bureau as director of the property division.
I was Capt. Hennessy's bureau chief during the better part of the two years he spent as the commander of the homicide branch. During this time, I observed Capt. Hennessy to be a very loyal and extremely knowledgeable and hard-working individual--one who clearly is dedicated to the Metropolitan Police Department and the citizens of the District of Columbia. Capt. Hennessy is a "cop's cop"; he is a true leader.
I did not support Capt. Hennessy's transfer to a "nondescriptive" assignment. It is my opinion that Capt. Hennessy's transfer from the homicide branch not only was a tragic loss to the Metropolitan Police Department but a disservice to the citizens of the District.
Capt. Hennessy is an extremely credible person--unlike the chief of police.
The following day, Soulsby and Barry demoted O'Donnell to the rank of captain, and ordered him to a comparatively low position as district patrol supervisor.
O'Donnell retired two weeks later, on July 31, 1996. As a result of the fact that he was demoted before he retired, his severance pay and payments for unused annual leave were reduced by an amount that he estimates as $11,250. O'Donnell also says that he had intended to seek out a job as chief of police of a large city, but that his demotion "irreparably stigmatized" him in "the close-knit world of chiefs of police of large cities and municipalities and eliminated him from any real consideration for positions such as these." O'Donnell ended up with a job as...
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