Turner v. U.S. Capitol Police

Decision Date31 March 2014
Docket NumberCivil Action No. 12–0638 (ABJ)
Citation34 F.Supp.3d 124
CourtU.S. District Court — District of Columbia
PartiesGregory L. Turner, Plaintiff, v. United States Capitol Police, et al., Defendants.

OPINION TEXT STARTS HERE

Motion granted in part and denied in part. John Patrick Mahoney, Tully Rinckey PLLC, Washington, DC, Patrick C. Tinsley, Peter H. Noone, Avery, Dooley & Noone, LLP, Belmont, MA, for Plaintiff.

John G. Interrante, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

AMY BERMAN JACKSON United States District Judge

Plaintiff Gregory L. Turner has brought this action against the United States Capitol Police (“USCP” or “the Agency”), the United States Capitol Police Board (CPB), and the Honorable Philip D. Morse in his official capacity as the Chief of the United States Capitol Police.1 Plaintiff is a former lieutenant with the Capitol Police who was terminated from that position in May 2011. He alleges that in terminating his employment, defendants unlawfully discriminated against him on the basis of his age and race, and also violated his rights under the First and Fifth Amendments of the United States Constitution. Defendants have moved to dismiss all five counts of the complaint, or in the alternative for summary judgment on those counts. They have also moved to dismiss two defendants, the CPB and Chief Morse, on the grounds that they were improperly joined, that sovereign immunity bars the claims against them, and that plaintiff failed to exhaust his remedies as to them.2

Defendants have attached numerous exhibits to the memorandum in support of their motion, and those documents include matters outside of the pleadings. Since the Court relied on some of this material in connection with its consideration of the motion to dismiss Counts One, Two, Three, and Five—the age and race discrimination claims, the Fifth Amendment due process claim, and the First Amendment freedom of association claim—it will treat defendant's motion as a motion for summary judgment on those counts. Plaintiff has failed to come forward with evidence that would establish the existence of a genuine dispute of material fact as to Count One, age discrimination, and Count Five, First Amendment freedom of association, and so defendants' motion will be granted on those claims. But since there are still genuine factual issues to be explored in connection with plaintiff's claims of race discrimination and denial of procedural due process, the Court will deny defendants' motion for judgment on Counts Two and Three without prejudice.

In addition, some matters can be determined on the face of the pleadings. The Court finds that plaintiff has failed to state a claim in Count Four for violation of his First Amendment right to free speech because he does not allege that he engaged in any speech at all, protected or otherwise. The Court also finds that it lacks subject matter jurisdiction over Chief Morse and the CPB because plaintiff has failed to exhaust his administrative remedies as to those defendants.

The DRB hearing took place over the course of two days. Pl.'s Resp. ¶ 9. Plaintiff had the opportunity to cross-examine some of the witness against him and to introduce multiple witnesses in his defense, although he alleges that he was not permitted to call “at least one” witness of his choice. See, e.g., Ex. D1A to Defs.' Mem. at 85–90 [Dkt. # 28–2] (transcript of DRB hearing); see also Pl.'s Statement of Material Facts ¶ 10 [Dkt. # 32] (“Pl.'s Statement”). Plaintiff also complains that he was not given a copy of key witness statements before the hearing. Compl. ¶ 67. Plaintiff acknowledges, however, that he received the statements during the course of the proceedings. 4 Id. ¶¶ 36–37.

The DRB found plaintiff “guilty” of just one of the three charges, “Conduct Unbecoming,” and it recommended a penalty of a 14–day suspension without pay. Pl.'s Resp. ¶¶ 12–13. Plaintiff was informed that he had the right to appeal this decision, but he declined to do so. Id. ¶¶ 14–15. Plaintiff was found “not guilty” of the other two charges, “Improper Associations” and “Outside Employment for Compensation or Voluntary Service.” Id. ¶ 12.

Pursuant to General Order No. 2222, the DRB submitted its findings and recommendation to Chief Morse. Compl. ¶ 38; USCP Gen. Order No. 2222 at 7–8. Instead of adopting the DRB's recommendation, though, Chief Morse recommended to the CPB that plaintiff's employment be terminated. Pl.'s Resp. ¶ 16. In a memorandum explaining his decision, Chief Morse stated that he had “reviewed the Report of Investigation and exhibits, the Disciplinary Review Officer recommendation and supporting documents, and the Disciplinary Review Board hearing testimony and recommendation, as well as other Department documents.” Ex. B to Defs.' Mem. at 1 [Dkt. # 27–3] (Morse Mem.). He stated that he based his recommendation of dismissal not only the DRB finding of “conduct unbecoming,” but on the “totality of the circumstances.” 5 Id. at 1, 6; Pl.'s Resp. ¶ 17. Chief Morse then laid out the grounds for his recommendation, including plaintiff's encounter with a founding member of the Hell's Angels, plaintiff's visit to the clubhouse of a Hell's Angels chapter, plaintiff's presence and alleged interactions with members of outlaw motorcycle clubs at certain events, photographs of plaintiff at outlaw motorcycle club clubhouses and with convicted felons, and plaintiff's alleged association with at least one white supremacist. Morse Mem. at 4–5. It is plaintiff's position that some of these alleged incidents were mischaracterized and that others never occurred at all, and he points out that the 2003 investigation yielded no disciplinary action, and that the DRB had rejected the charge of “improper associations.” Compl. ¶¶ 14, 43; Pl.'s Resp. ¶¶ 20–22. Plaintiff further alleges that Chief Morse was truly motivated by discriminatory and improper considerations. Pl.'s Statement ¶¶ 17–19.

Prior to the CPB's final termination decision, plaintiff submitted a letter through counsel to the CPB Chairman, Terrance W. Gainer, arguing that Chief Morse had “commit[ted] no fewer than 12 misrepresentations of the evidentiary record” and requesting that Chairman Gainer affirm the DRB's recommendation of a 14–day suspension. Ex. G to Defs.' Mem. at 1, 4 [Dkt. # 27–7] (“Pl.'s Letter to Gainer”).6 Despite plaintiff's objections, the CPB approved Chief Morse's termination recommendation by a two-to-one vote. Ex. H to Defs.' Mem. [Dkt. # 27–8]. After his dismissal, plaintiff initiated a counseling and mediation process against the USCP, but not against the other defendants. Pl.'s Resp. ¶ 28. This process terminated unsuccessfully on January 16, 2012. Id.

II. Procedural Background

Plaintiff filed suit in this Court on April 20, 2012, alleging five causes of action against seven defendants. Compl. at 1–2. In Count One, plaintiff claims that defendants discriminated against him based on his age in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., as applied to the USCP through the Congressional Accountability Act (“CAA”), 2 U.S.C. § 1302(a)(4) (2012). Compl. ¶¶ 50–57. Count Two asserts that defendants also discriminated against plaintiff on the basis of his race in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq., as applied to the USCP through the CAA, 2 U.S.C. § 1302(a)(2). Compl. ¶¶ 58–62. In Count Three, plaintiff asserts that defendants violated his Fifth Amendment right to due process. Id. ¶¶ 63–69. Counts Four and Five allege violations of plaintiff's First Amendment rights to freedom of speech and association, respectively. Compl. ¶¶ 70–76. Plaintiff seeks reinstatement to his former position, back pay and other monetary relief, declaratory relief, damages, and costs and attorney fees. Id. at 19.

Plaintiff voluntarily dismissed four of the original defendants on June 13, 2013, [Dkt. # 4]. On March 28, 2013, the remaining defendants filed the motion to dismiss or, in the alternative, for summary judgment that is now before the Court, [Dkt. # 27]. They sought to dismiss all five counts of the complaint either under Rule 12(b)(6) for failure to state a claim or under Rule 56 at summary judgment, and to dismiss the two individual defendants, Chief Morse and the CPB, under Rule 12(b)(1) for lack of subject-matter jurisdiction. Defs.' Mem. at 2–3. Plaintiff opposed the motion for summary judgment, and he complained generally that he had not yet had the opportunity to undertake discovery. Pl.'s Opp. to Defs.' Mot. to Dismiss or, in the Alternative, for Summ. J. at 3–4, 6–8, 10–12, 15, 18, 20–22 [Dkt. # 32] (“Pl's Opp.”); see also Ex. A to Pl.'s Opp. at 2–6 (affidavit of Peter H. Noone, plaintiff's counsel, repeating requests for discovery and citing Federal Rule of Civil Procedure 56(f)) [Dkt. # 32–1] (“Noone Aff.”). On December 30, 2013, the Court ordered plaintiff to file a response to defendants' statement of undisputed facts that comported with Local Civil Rule 7(h)(1), and to provide the Court with a proposed discovery plan that would clarify his contention that discovery was vital to his case, [Dkt. # 35]. Plaintiff filed his responses to that Order on February 14, 2014, [Dkt. # 37, 38, 39].

STANDARD OF REVIEW
I. Motion to Dismiss

“To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted); accord Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In Iqbal, the Supreme Court reiterated the two principles underlying its decision in Twombly : “First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” 556 U.S....

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