Bourdon v. Mabus

813 F.Supp.2d 200

Jonathan T. BOURDON and Jeffrey G. Walls, Plaintiffs,

v.Ray MABUS,1 Secretary of the Navy, et al., Defendants.

Civil Action No. 09–1229 (RBW).

United States District Court, District of Columbia.

Sept. 28, 2011.

Billy L. Ponds, The Ponds Law Firm, Washington, DC, for Plaintiffs.

Josh Hildreth, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

REGGIE B. WALTON, District Judge.

Plaintiffs Jonathan Bourdon and Jeffrey Walls bring this action against various defendants alleging violations of the Whistleblower Protection Act of 1989, Pub.L. No. 101–12, 103 Stat. 16 (1989) (codified as amended at sections throughout 5 U.S.C.), several common law torts, and 42 U.S.C. § 1983 (2006), stemming from the termination of their employment with the Department of Navy. Amended Complaint (“Am. Compl.”) ¶¶ 1, 4–11, 81–126. Among other forms of relief, the plaintiffs seek reinstatement, retroactive promotions and benefits, $12 million each in compensatory damages, and $40 million apiece in consequential damages. Id. at 24–25. Currently before the Court is the motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), or in the alternative for summary judgment pursuant to Rule 56 filed by Ray Mabus, O. Tom Crane, Harris Cummings, and Richard Gilbert (“federal defendants”).² After carefully considering the amended complaint, the parties' written submissions,³ and the applicable legal authority, the Court concludes for the reasons explained below that it must grant the federal defendants' motion to dismiss.

I. BACKGROUND

A. Plaintiff Jonathan Bourdon

Jonathan Bourdon was employed as a Federal Police Officer with the Naval District of Washington (“NDW”) from June 17, 1996 until May 26, 2007. Am. Compl. ¶¶ 2, 32. In 1998, 2001, and 2005, he “applied for promotions and each time ... was not selected.” Id. ¶ 21. In April 2004, Bourdon also applied for one of six open Sergeant positions, but was not selected. Id. ¶ 22. According to Bourdon, “only members of the local union bargaining committee were selected” for the Sergeant position, including a female applicant with lower scores than him on one aspect of the selection process. Id. ¶¶ 22–23. The unsuccessful effort to acquire the Sergeant position led Bourdon to submit a formal complaint to the United States Equal Employment Opportunity Commission (“EEOC”) on June 22, 2005.⁴ Id. ¶ 25. “On or about February 6, 2007, the EEOC dismissed Bourdon's complaint with prejudice. Bourdon appealed this dismissal and the decision was confirmed.” Id. ¶ 30.

Meanwhile, on or about November 30, 2006, Bourdon was involved in a verbal altercation with a York, Pennsylvania off-duty firefighter. Id. ¶ 51; Defs.' Mot., Exhibit (“Ex.”) 1 (Notice of Proposed Indefinite Suspension Without Pay) at 1. During this incident, which occurred when Bourdon was off-duty, he allegedly “identified [himself] as a Federal Marshall[,] ... showed the firefighter [his] badge[,] and said in words to the effect that if [the firefighter] messed with Tony he messed with you and that you had the federal government backing you.” Defs.' Mot., Ex. 1 (Notice of Proposed Indefinite Suspension Without Pay) at 1. As a result of this incident, the York Police Department issued an arrest warrant for Bourdon “based on the charge of Official Oppression.” Id. Also following this purported incident, the Navy proposed to suspend Bourdon indefinitely without pay for Conduct Unbecoming a Police Officer. Id. The proposed indefinite suspension was implemented on January 16, 2007. Am. Compl. ¶ 28; Defs.' Mot., Ex. 2 (Decision on Proposed Indefinite Suspension) at 1–2.

On January 30, 2007, Bourdon appealed his indefinite suspension to the Merit Systems Protection Board (“MSPB”). Am. Compl. ¶ 29. On March 26, 2007, the Navy informed Bourdon of its intention to remove him from federal employment for “conduct unbecoming a NDW police officer, providing false information to an investigator[,] and failure to cooperate in an Agency Investigation.” Am. Compl. ¶ 31. The Navy acted on the proposed removal on May 4, 2007, Defs.' Mot., Ex. 5 (Decision on Proposed Removal) at 2, and Bourdon's employment was terminated on May 26, 2007, Am. Compl. ¶ 32. On July 23, 2007, the MSPB dismissed Bourdon's appeal of his termination without prejudice. Defs.' Mot., Ex. 3 (Initial Decision) at 1–2.

On November 13, 2007, the charges against Bourdon in York, Pennsylvania were dismissed. Am. Compl. ¶ 55. On November 19, 2007, more than five months after his removal from the Navy took effect, Bourdon filed an appeal with the MSPB requesting that the termination of his employment by the Navy be stayed. Defs.' Mot., Ex. 6 (Order Denying Stay Request) at 1. The basis for this request consisted solely of Bourdon's allegation that he “had previously [blown] the whistle for ‘faulty equipment.’ ” Id. The request for a stay was denied on December 4, 2007. Id. In her Order denying the stay, MSPB Administrative Judge Sarah P. Clement remarked that Bourdon “did not explain how his alleged disclosure about ‘faulty equipment’ constituted whistleblowing [,] ... gave no details concerning the contents or circumstances of his disclosure, ... [and] ... thus failed to explain in even rudimentary fashion how his removal could have been in reprisal for his whistleblowing.” Id. at 2. A few months later, on March 18, 2008, Administrative Judge Clement dismissed Bourdon's appeal of his removal from federal service on the ground that it had been untimely filed. Defs.' Mot., Ex. 7 (Initial Decision).

Finally, at some point before December 23, 2009, Bourdon filed a complaint with the United States Office of Special Counsel (“OSC”) alleging violations of personnel practices against management officials at the NDW.⁵ See Pls.' Opp'n, Ex. E (December 23, 2009 Letter from the OSC to Bourdon) at 1. Bourdon asserted that he was “reprised against because of [his] whistleblowing activity between April 2004 and September 2006.” Id.; see also Am. Compl. ¶¶ 38–43. By letter dated December 23, 2009, the OSC notified Bourdon that because of “the absence of information to establish a connection between [his] indefinite suspension, the termination action[,] and [his] protected activity, [the OSC had] no basis for further inquiry into [his] allegations.” Pls.' Opp'n, Ex. E (December 23, 2009 Letter from the OSC to Bourdon) at 3. The letter also informed Bourdon that the OSC had “made a preliminary determination to close [their] inquiry into [his] complaint,” and that “before [they] actually close[d] the file,” they would give him thirteen days to submit a written response. Id. Bourdon was also advised that if the OSC did not hear from him within that time, they “anticipate[d] closing the file and ... send [ing] [him] a letter terminating the investigation and advising [him] of any additional rights [he] may have.” Id.

B. Plaintiff Jeffrey Walls

Jeffrey Walls was employed by the NDW from April 2001 until May 8, 2009, Am. Compl. ¶ 3, as a police officer, id. ¶ 74. In September 2006 and 2007, Walls informed Colonel Larry Graves that several supervisors at the NDW were abusing their authority by misrepresenting the number of hours they worked and improperly receiving bonuses. Id. ¶¶ 59, 61. Walls states that Colonel Graves failed to pursue his allegations. Id.

On June 6, 2008, Colonel Graves proposed to suspend Walls for thirty days as a result of inappropriate conduct and negligent behavior that occurred on May 25, 2008. Id. ¶ 62. The conduct in question concerned Walls' response to a situation involving an intoxicated motorist who had “flagged [him] down” while he was on patrol in his car. See Defs.' Mot., Ex. 8 (Proposed Suspension for Thirty (30) Calendar Days) at 1–2. Walls submitted a written reply regarding the events, but the Navy upheld his suspension on June 26, 2008. See Defs.' Mot., Ex. 9 (Decision to Effect Your 30–Day Calendar Suspension). On July 24, 2008, Walls filed an appeal of his thirty-day suspension with the MSPB. Am. Compl. ¶ 65. The suspension was upheld on November 26, 2008. Id. ¶ 66.

Meanwhile, on July 19, 2008, Walls “was obliged to take leave as a result of an injury to his left knee that occurred while on duty.” Id. ¶ 64. As a result of “his injury Walls was prescribed a daily medication to assuage his pain, required to wear knee braces ... [,] and placed in physical therapy based on the recommendation made by his [Veterans Administration] physician.” Id. Walls made requests to accommodate his disability, including “several requests to obtain ... access to a Sport Utility Vehicle.” Id. ¶ 68. These requests were unsuccessful, and Walls sustained another injury to his left knee in September 2008. Id. Walls was scheduled to return to duty on January 13, 2009, but was unable to do so because of complications with his knee and other family circumstances. Id. ¶ 69. Walls then submitted two requests for continued leave in February 2009, however, both were denied. Id. ¶ 70.

On March 30, 2009, the Navy proposed to terminate Walls for Extensive Unauthorized Absence. Id. ¶ 72; Defs.' Mot., Ex. 11 (Proposed Removal) at 1. In its termination proposal, the Navy noted that Walls had been absent without leave for 428 hours and explained how Walls was previously “informed ... that [he] needed to submit appropriate medical documentation to justify [his] continued absence.” Defs.' Mot., Ex. 11 (Proposed Removal) at 1. On May 5, 2009, the Navy upheld Walls' proposed removal. Defs.' Mot., Ex. 12 (Decision Concerning Your Proposed Removal). The Navy noted that Walls' “unauthorized absence totals 77 days or 648 duty hours” and that this “excessive unauthorized absence ... warrant[ed his] removal from the Federal service.” Id. at 2. The termination became effective on May 9, 2009. Id. at 8.

On August 5, 2009, Walls filed a formal complaint of employment discrimination against the Navy, alleging that his “separation from Federal...