Ramey v. U.S. Marshals Serv., Case No. 1:07–CV–01391.
| Decision Date | 13 December 2010 |
| Docket Number | Case No. 1:07–CV–01391. |
| Parties | Ava RAMEY, Plaintiff,v.U.S. MARSHALS SERVICE, Defendant. |
| Court | U.S. District Court — District of Columbia |
OPINION TEXT STARTS HERE
Phoebe Leslie Deak, Law Offices of Leslie Deak, Washington, DC, for Plaintiff.Jeremy S. Simon, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.
[Resolving Doc. Nos. 30, 31, 41]
In this Privacy Act and retaliation case over protected speech and union activity, Plaintiff Ava Ramey, a former Court Security Officer and local union president, brings claims against Defendant U.S. Marshals Service. Pending are cross motions for summary judgment. [Doc. 30; Doc. 31.] For the following reasons, the Court DENIES Plaintiff's motion for partial summary judgment and GRANTS the Defendant's motion for summary judgment on all Plaintiff's claims. 1
In exercising its statutory responsibility to “provide for the security of” the federal courts, 28 U.S.C. § 566(a), Defendant U.S. Marshals Service contracts with private companies to employ Court Security Officers (“CSOs”). CSOs provide on-the-ground security at the courthouses—monitoring the doors, patrolling the grounds, and screening visitors, for example. For CSOs in the “Twelfth Circuit”, which includes the District Court and the Superior Court in the District of Columbia, the U.S. Marshals Service contracts with MVM Inc, a private security staffing company. [Doc. 31 at 2.]
MVM employed Plaintiff Ava Ramey as a CSO under the Twelfth Circuit Contract until it fired her in 2006 after the U.S. Marshals determined that she had violated security protocol and performance standards. The U.S. Marshals ordered an investigation into Ramey after learning she had made an unsolicited visit to the Chief Judge of the Superior Court during one of his weekly open-chambers sessions. [Doc. 30 at 5.] Specifically, the Marshals asked MVM to investigate whether Ramey had improperly bypassed her reporting chain of command in meeting directly with the Chief Judge and also whether she had left her post unguarded to make the visit, a violation of security protocol. [Doc. 30 at 17–18.]
As part of its investigation, MVM interviewed Plaintiff Ramey. [Doc. 30 at 6.] Ramey admitted she visited the Chief Judge and recounted the conversation as follows:
The first question that I told [the Chief Judge] that was a concern for me was that some judges did not want you to wear your issued weapon. The second question was that some judges wanted you to remove the weapon and equipment when walking them to the subway. The third question was that if [a CSO] made an arrest inside DC Superior Court, the only place to take them is the control room where all of the cameras are for the building and that would compromise security.
[Doc. 31–18 at 2; Doc. 30–8 at 4.] Ramey also told the investigator that she visited the Chief Judge during her scheduled morning break, shortly after 10:00 am. [Doc. 36 at 12.] Security camera video, however, showed Ramey leaving her post around 9:00 am. [Doc. 30–2 at 63.]
MVM ultimately concluded that Ramey: (1) was not on an authorized break when she visited the Chief Judge and had left her post unattended; (2) failed to follow the chain of command in speaking directly to the Chief Judge; and (3) had not been candid with MVM during its investigation. [Doc. 36 at 18; Doc. 30–2 at 57.] MVM submitted these findings to the U.S. Marshals, along with a disciplinary recommendation that Plaintiff be suspended for ten days. [Doc. 36 at 18.] However, the U.S. Marshals Service, which retained the ultimate authority to make suitability determinations, disagreed with MVM's recommendation. [Doc. 36 at 19.] Given the “serious nature” of Ramey's breach combined with her “previous documented infractions”, the U.S. Marshals directed MVM to remove Plaintiff Ramey from performing services under the Twelfth Circuit Contract. [Doc. 36 at 19.] After Ramey refused a different assignment, MVM terminated her. [Doc. 36 at 3.]
Against this backdrop, Plaintiff brings three counts against the U.S. Marshals Service. First, she alleges that the Defendant directed MVM to remove her from the Twelfth Circuit Contract in violation of her First Amendment rights to speech and assembly. [Doc. 1 at 12–13.] Second, she alleges that the Defendant retaliated against her for whistleblowing in violation of the False Claims Act, 31 U.S.C § 3730(h). [Doc. 1 at 13–14.] And third, she alleges that the Defendant's directive to remove her from the Contract was based on inaccurate information and an incomplete investigation, a violation of the Privacy Act, 5 U.S.C. § 552a(e). [Doc. 1 at 14–15.]
A. Summary Judgment
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Tao v. Freeh, 27 F.3d 635, 638 (D.C.Cir.1994).
Under the summary judgment standard, the moving party bears the “initial responsibility of informing the district court of the basis for [its] motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits which [it] believe[s] demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In response, the non-moving party must “go beyond the pleadings and by [its] own affidavits, or depositions, answers to interrogatories, and admissions on file, ‘designate’ specific facts showing that there is a genuine issue for trial.” Id. at 324, 106 S.Ct. 2548 (internal citations omitted).
Although a court should draw all inferences from the supporting records submitted by the nonmoving party, the mere existence of a factual dispute, by itself, is insufficient to bar summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To be material, the factual assertion must be capable of affecting the substantive outcome of the litigation; to be genuine, the issue must be supported by sufficient admissible evidence that a reasonable trier-of-fact could find for the nonmoving party. Laningham v. U.S. Navy, 813 F.2d 1236, 1242–43 (D.C.Cir.1987).
“Mere allegations or denials in the adverse party's pleadings are insufficient to defeat an otherwise proper motion for summary judgment.” Williams v. Callaghan, 938 F.Supp. 46, 49 (D.D.C.1996). Instead, while the movant bears the initial responsibility of identifying those portions of the record that demonstrate the absence of a genuine issue of material fact, the burden shifts to the non-movant to “come forward with ‘specific facts showing that there is a genuine issue for trial.’ ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (citing Fed.R.Civ.P. 56(e)) (emphasis in original).
Plaintiff Ramey says her removal from the Twelfth Circuit Contract occurred in retaliation for exercises of her First Amendment rights to speech and assembly. She cites three events that prompted the U.S. Marshals to retaliate against her: (1) she spoke to the Chief Judge on behalf of herself and other CSOs as their union representative about matters affecting court security; (2) she filed grievances and unfair labor practice charges in her capacity as a union president; and (3) she accused MVM of wasting government funds. Responding, the Defendant says it is entitled to summary judgment because Plaintiff's conversation with the Chief Judge was not protected under the First Amendment and also because no sufficient evidence shows that Plaintiff's prior union, grievance, and whistleblowing activity were factors in its decision to remove her from the Contract for violating security protocol. [Doc. 30 at 38.]
“The government needs to be free to terminate both employees and contractors for poor performance.” Bd. of County Comm'rs v. Umbehr, 518 U.S. 668, 674, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996). However, “[t]he First Amendment's guarantee of freedom of speech protects government employees from termination because of their speech on matters of public concern.” Id. at 675, 116 S.Ct. 2342 (emphasis in original). Mindful of the government's dual roles as a sovereign and employer, for a government employee's or contractor's speech to have First Amendment protection, the employee or contractor must have (1) spoken as a citizen and (2) addressed matters of public concern. Wilburn v. Robinson, 480 F.3d 1140, 1149 (D.C.Cir.2007). Courts impose these same threshold requirements to First Amendment retaliation suits brought by “hybrid” government contractors—private employees of private companies with public contracts. See, e.g., Castro v. County of Nassau, 739 F.Supp.2d 153, 160–61, 2010 WL 3713185, at *2 (E.D.N.Y. Sept. 13, 2010) ().
In determining whether a government employee spoke as a citizen on a public issue, the court's analysis “must take into account the content, form, and context of the employee's speech.” LeFande v. District of Columbia, 613 F.3d 1155, 1159 (D.C.Cir.2010)(internal quotation omitted). “[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). Whether a government employee spoke as a citizen on a public issue is a question of law for the...
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