McCormick v. Dist. of Columbia

• Decision Date: 26 August 2014
• Docket Number: No. 12–7115.,12–7115.
• Citation: 752 F.3d 980
• Parties: Emmette McCORMICK, Jr., Appellant v. DISTRICT OF COLUMBIA, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

752 F.3d 980

Emmette McCORMICK, Jr., Appellant

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

No. 12–7115.

United States Court of Appeals, District of Columbia Circuit.

Argued Dec. 5, 2013.

Decided May 27, 2014.

Rehearing En Banc Denied Aug. 26, 2014.

Appeal from the United States District Court for the District of Columbia (No. 1:07–cv–00570).

Robert C. Seldon argued the cause for appellant. With him on the briefs was Lauren E. Marsh.

Holly M. Johnson, Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for appellees. With her on the brief were Irvin B. Nathan, Attorney General, Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General at the time the brief was filed.

Before: BROWN, Circuit Judge, and WILLIAMS and SENTELLE, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge SENTELLE.

SENTELLE, Senior Circuit Judge:

Emmette McCormick, Jr., a discharged supervisory employee of the District of Columbia Department of Corrections, brought this action against the District and two of its officials, alleging violations of his rights under the District's whistleblower statute and of his liberty interests under the Fifth Amendment. He appeals from the district court's grant of summary judgment in the defendants' favor on all counts. Because we agree with the district court that there is no genuine issue of material fact and that the defendants are entitled to judgment as a matter of law, we affirm the grant of summary judgment.

I. Background

A. Factual History

In 2006, appellant was a Supervisory Correctional Officer with the District of Columbia Department of Corrections. In that capacity, he was an at-will employee in the Management Supervisory Service. On January 13 of that year, approximately 100 inmates were mistakenly released from their cells at the central detention facility, where McCormick served in his supervisory capacity. Numerous correctional officers, including appellant, responded to the situation to get the inmates back into their cells. McCormick maced at least two inmates after they did not follow his instructions. During the disturbance, some inmate on a higher floor threw a bucket of ice water over McCormick. He did not see which inmate was responsible. Later evidence identified Michael Tobias as the inmate who had thrown “a watery liquid substance” at McCormick. After order was largely restored in the facility, McCormick had Tobias brought to the sally port, an enclosed entry and security area, and confronted him there. The parties do not agree on precisely what occurred there.

At the conclusion of the disturbance, each on-duty officer was required to file a “Report of Significant Incident.” Such reports, required to be filed following any out-of-the-ordinary event at the detention facility, should include any use of force by a corrections officer on an inmate or physical assault on a corrections officer by an inmate, as well as any injuries to an officer or inmate. None of the reports filed the day of the incident reported McCormick as having struck Tobias.

A few days after the incident, someone representing herself as a member of Tobias's family sent an email to a city council member, alleging that after the ice water incident, McCormick had Tobias escorted to the enclosed sally port and struck him in the face and ear while six other guards held him. The email was forwarded to the Department of Corrections and passed on to Internal Affairs for investigation. Wanda Patten, Chief of Internal Affairs, directed investigator Valerie Beard to conduct the investigation.

As we set forth the results of the investigation, we note that the parties disagree as to the truth of the statements obtained and the accuracy of the investigators' conclusions. However, as is pertinent to the case before the district court on summary judgment, there is no genuine issue of fact as to what the investigation reports, only as to the accuracy of the witness statements obtained by the investigators, which is not a matter for the court's review.

One corrections officer, Jimmy Harper, stated under oath that after the inmates were returned to their cells, McCormick inquired at the control module where Harper was stationed about the inmate who had thrown water on him. Harper then helped McCormick find Tobias in his cell and Tobias “was escorted to the sally port.” Then, when Harper was returning to the control module, he witnessed McCormick slap the handcuffed inmate while saying to him, “You better never throw s* * * on me again.”

Another corrections officer, David Thomas, stated under oath that he remembered the inmate being taken from his cell in handcuffs to the sally port. He also saw McCormick strike the handcuffed inmate with his open hand.

Corrections officer Kirkland Marion testified that he accompanied McCormick and five other officers to Tobias's cell and that Tobias was taken from the cell in handcuffs to the sally port. Although Marion did not accompany McCormick, the other officers, and Tobias to the sally port, he arrived there sometime after they did. When he was there, he saw and heard McCormick yelling, “Don't ever throw s* * * at me again.” He did not, however, see McCormick strike Tobias.

Senior correctional officer James McElhaney told Internal Affairs that he saw “McCormick yelling at Tobias” in the sally port and that McCormick was “in Tobias's face and Tobias had on handcuffs.” McElhaney witnessed the incident through the glass of a closed door and could not hear what McCormick was saying. However, he discerned from McCormick's gestures that McCormick was yelling. Like Marion, McElhaney did not see McCormick strike Tobias. Two other officers gave accounts of events in the sally port in which they apparently confused Tobias with one of the inmates who had been maced, but neither of them reported seeing McCormick strike anyone. Ten other correctional officers were interviewed and reported they had not witnessed the incident.

Although Tobias initially refused medical care, writing “I feel better,” he later asserted that he made that refusal after McCormick had threatened to put him in lockdown. The day after the incident, a doctor examined Tobias and found that his right ear had a small streak of blood about 4mm long, lying across the eardrum, and that he had suffered mild trauma to his right jaw.

Based on the results of the investigation, Valerie Beard, the Internal Affairs investigator, concluded that “McCormick struck inmate Michael Tobias across the right side of his face with an open hand at least once while he was handcuffed in the sally port.” She concluded that McCormick had “displayed a blatant disregard for the agency's established guidelines for the use of force” and may have violated “the assault statute of the Criminal Code of the District of Columbia.”

Investigator Beard referred her report to her superior Patten, who reviewed the report and Beard's findings. Patten made corrections in form, but submitted the report to Devon Brown, the Director of the Department of Corrections, without substantive change. Director Brown placed McCormick on administrative leave on March 9, 2006, after Patten told him that McCormick had “inappropriately, without just cause struck an inmate under his care.”

According to Director Brown, he then wrote to the Deputy Mayor of the District of Columbia, requesting approval to terminate McCormick, as was required for the termination of at-will employees of the District of Columbia Management Supervisory Service, like McCormick. Though no copy of that letter was ever produced, Brown proceeded with the termination, and there is no contention that the Deputy Mayor ever disapproved the termination.

Brown testified that he terminated McCormick because Internal Affairs had concluded that McCormick had assaulted a handcuffed inmate. He testified that he was aware of the evidence from the other corrections officers, both those who did and did not report seeing the incident. He further testified that he was aware that none of the officers had included the assault in their initial reports of the events of January 13 and had issued a directive to the staff that a “code of silence ... would not be accepted in the department.” At no time did Director Brown or the Department of Corrections publish the Internal Affairs report. The report was not placed in McCormick's personnel file. Brown did not provide McCormick's termination letter to anyone outside the Department. He did not disclose the basis of McCormick's termination to anyone other than the DeputyMayor, and that disclosure was necessary to obtain authorization for the termination. Beyond that, at some point after the investigation was complete, the Internal Affairs report was forwarded to the United States Attorney's Office for any criminal investigation that office might determine to conduct.

B. The Litigation

On February 21, 2007, McCormick filed the present action in the Superior Court of the District of Columbia against the District of Columbia, Department of Corrections Director Devon Brown, and Chief of Internal Affairs Wanda Patten. He alleged a claim against the District of Columbia for wrongful discharge, in violation of the District of Columbia Whistleblower Protection Act (“WPA”), D.C.Code § 1–615.51 et seq. (2006). He further alleged violation by all defendants of his constitutional rights, specifically of his liberty interests under the Fifth Amendment without due process. Thereafter, the District of Columbia removed the action to the district court, where it proceeded to the summary judgment motions and the entry of summary judgment in favor of all defendants now before this court. McCormick v. District of Columbia, 899 F.Supp.2d 59 (D.D.C.2012). We review the entry of summary judgment de novo, drawing all inferences from the evidence in favor of the nonmovant. Reeves v. Sanderson Plumbing Prods., 530...