                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


 MICHAEL L. MENTZER, et al.,

           Plaintiffs,
                                                             Civil Action No. 06-281 (CKK)
           v.

 CATHY L. LANIER, Chief of the
 Metropolitan Police Department,

           Defendant.


                                  MEMORANDUM OPINION
                                     (January 6, 2010)

       This case is brought by Plaintiffs Michael Mentzer and Leo Scully against Defendant

Cathy L. Lanier in her official capacity as Chief of the Metropolitan Police Department.1

Plaintiffs allege that they suffered adverse employment actions in retaliation for engaging in

activities protected by Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., as

amended, the D.C. Whistleblower Protection Act, D.C. Code §§ 1-615.51 et seq., and the D.C.

Human Rights Act, D.C. Code §§ 2-1401 et seq. Presently before the Court is Defendant’s [29]

Motion for Summary Judgment. Plaintiffs have filed a brief in opposition, and Defendant has

filed a reply. For the reasons explained below, the Court shall grant Defendant’s motion for

summary judgment.



       1
          Plaintiffs initially filed suit against Charles H. Ramsey in his official capacity as Chief
of the Metropolitan Police Department; Chief Lanier was substituted as Defendant pursuant to
Federal Rule of Civil Procedure 25(d). Plaintiffs have made clear that this action is brought
against Chief Lanier only in her official capacity and, as such, should be treated as a suit against
the Metropolitan Police Department. Pls.’ Mem. Opp’n to Def.’s Mot. Summ. J. (“Pls.’ Mem.”)
at 3; see Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (“[A]n official-capacity suit is, in all
respects other than name, to be treated as a suit against the entity.”)
                                        I. BACKGROUND

       At all times relevant to this action, Plaintiffs Michael Mentzer and Leo Scully were police

officers within the Special Operations Division of the D.C. Metropolitan Police Department

(“MPD”). Def.’s Stmt.2 ¶¶ 1-2. Plaintiffs previously worked within the Special Operations

Division’s Horse Mounted Unit (“HMU”). Id. ¶ 3. While working in the HMU, Plaintiffs

believed that other officers in the unit were not performing their duties appropriately. Id. ¶ 4.

Plaintiffs were concerned that other officers were not punctual, failed to exercise and care for the

horses regularly, and inappropriately engaged in outside employment. Id.

       On September 11, 2003, Officer Mentzer sent a letter to Assistant Chief of Police

Broadbent detailing his concerns. See Def.’s Mem. P. & A. Supp. Def.’s Mot. Summ. J. (“Def.’s

Mem.”), Ex. A (Sept. 11, 2003 Letter). Although Mentzer had previously voiced his complaints

to management staff within the Special Operations Division, the September 11, 2003 letter was

his first written complaint. See id.; Pls.’ Stmt. ¶ 7. Mentzer’s letter accused Sergeant Dale

Poskus, among other things, of mismanaging the HMU, submitting fraudulent receipts for

reimbursement, failing to disclose the poor health condition of his horse, and, after leaving the

HMU, stealing horse feed. See Def.’s Mem., Ex. A at 1-3. The letter claims that Mentzer and

Scully “have been branded troublemakers” for their attempts to criticize and investigate


       2
          The Court strictly adheres to the text of Local Civil Rule 7(h) (formerly Rule 56.1 when
resolving motions for summary judgment). See Burke v. Gould, 286 F.3d 513, 519 (D.C. Cir.
2002) (finding district courts must invoke the local rule before applying it to the case). The
Court has advised the parties that it strictly adheres to Rule 7(h) and has stated that it “assumes
facts identified by the moving party in its statement of material facts are admitted, unless such a
fact is controverted in the statement of genuine issues filed in opposition to the motion.” [7]
Order at 1 (Apr. 25, 2006). Thus, in many instances the Court shall cite only to one party’s
Statement of Material Facts (“Stmt.”) unless a statement is contradicted by the opposing party.
The Court shall also cite directly to evidence in the record, where appropriate.

                                                  2
mismanagement. See id. at 1.

       Plaintiffs were also concerned with the stable in which HMU horses were housed, which

was a federally-owned facility at Fort Dupont. Def.’s Stmt. ¶ 5. Plaintiffs believed that the

horses should have been stabled at a city-owned facility, the historic Cavalry Barn on the campus

of St. Elizabeth’s Hospital. Id. ¶¶ 5-6. On March 29, 2004, Plaintiffs attended a meeting with

D.C. Councilmember Jim Graham, Assistant Chief Broadbent, and other officials concerning the

HMU and the plans for future stabling of horses. Id. ¶ 8; Compl. ¶ 30.

       On April 9, 2004, Plaintiffs attended a party in which a U.S. Capitol police officer

became belligerent. Def.’s Stmt. ¶ 9. Plaintiffs handcuffed the officer in an effort to control him.

Id.; see Def.’s Mem., Ex. B (Dep. of Michael Mentzer) at 128; Def.’s Mem., Ex. C (Dep. of Leo

Scully) at 106-07. Park Police officers then informed Plaintiffs that they would handle the

situation and asked Plaintiffs to leave. Mentzer Dep. at 128; Scully Dep. at 107. The handcuffed

officer later claimed that Plaintiffs assaulted him. Def.’s Stmt. ¶ 10. Plaintiffs were initially

investigated by Capitol Police and later were investigated by MPD. Id.; Scully Dep. at 107-08.

On April 14, 2004, five days after the incident, MPD placed Plaintiffs on paid administrative

leave and removed them from the HMU. Def.’s Stmt. ¶ 11; Pls.’ Mem., Ex. 8 (Dep. of Michael

Mentzer) at 133. Plaintiffs’ police powers were revoked for approximately two months. See

Mentzer Dep. at 147.3 Plaintiffs claim that the actual investigation was completed in just two

days and that there was no reason to place them on administrative leave. See Mentzer Dep. at

133; Scully Dep. at 109. Nevertheless, Plaintiffs were not disciplined as a result of this



       3
         Plaintiff Scully’s revocation of police powers ended on around June 17-18, 2004, and he
returned to work after a vacation on June 30 or July 1, 2004. See Scully Dep. at 111.

                                                  3
particular investigation. Def.’s Stmt. ¶ 12. When Sergeant Scully returned to the HMU, he

disciplined several officers. Scully Dep. at 113. Those officers complained that Scully was

“picking on them” to then-Commander Lanier. Id. at 113-15.

       On August 4, 2004, Sergeant Scully was removed from the HMU and detailed to the

Special Events Branch. Def.’s Stmt. ¶ 13.4 MPD has asserted that the reason for Scully’s

transfer was that there was a shortage of sergeants in the Special Events Branch. See Def.’s

Mem., Ex. D (Dep. of MPD Police Chief Catherine Lanier) at 81-86; Scully Dep. at 112. Scully

was told that he could return to the HMU after the 2005 presidential inauguration. See Lanier

Dep. at 84; Scully Dep. at 112-13. However, Scully was not offered a chance to return to the

HMU until 2006. See Lanier Dep. at 83-84; Def.’s Mem., Ex. E (Scully Interrog. Answers) at 2.

When Scully was detailed out of HMU on August 4, 2004, he was told that there was going to be

an investigation into his alleged misconduct. See Scully Dep. at 117. At one point, Scully was

told that he was moved out of HMU because of this investigation. Id. at 113. However,

Commander Lanier told Scully in November 2004 that she had never initiated any such

investigation. Id. at 117. In March 2005, Scully was issued a Letter of Reprimand, apparently

for using an expletive in an email to another officer regarding a situation that directly affected

Scully. See Scully Dep. at 100. Scully filed a charge of discrimination with the D.C. Office of

Human Rights on March 30, 2005. See Pls.’ Mem., Ex. 4 (Notice of Charge of Discrimination).

       In December 2004, Officer Mentzer requested that he be given an opportunity to work in


       4
         There is a dispute in the record as to the nature of Scully’s removal from the HMU. It
appears that Scully was told his removal would be temporary, but Scully asserted at his
deposition in May 2008 that he was still technically assigned to the HMU “on paper” despite not
having served with the unit since his removal in August 2004. See Def.’s Stmt. ¶ 13; Scully Dep.
at 111.

                                                  4
a different division of the Special Operations Division with a larger group of people so that he

could show that he was not a troublemaker. Mentzer Dep. at 166.5 Mentzer was investigated for

insubordination after his supervisor alleged that Mentzer refused to return agency equipment for

use in the presidential inauguration during January 2005. Def.’s Stmt. ¶ 15. After a four-month

period of limited duty, Mentzer returned to the HMU in April 2005. See Mentzer Dep. at 166.

Mentzer missed a mandatory medical clinic appointment on May 11, 2005, despite working that

day. Def.’s Stmt. ¶ 16. On June 9, 2005, Mentzer received a performance warning notice.

Def.’s Stmt. ¶ 17. The notice indicated that Mentzer was in danger of being rated below average

and cited three areas of improvement: interpersonal relations, work habits, and general policing.

See Def.’s Mem., Ex. F (Performance Rating Warning Notice). Mentzer was ultimately

transferred out of the HMU and detailed to the Special Events Branch in June 2005. Def.’s Stmt.

¶ 18.

        Plaintiffs claim that their jobs with the Special Events Branch are not as favorable as they

were in the HMU. Although their salaries and benefits were not changed by the transfer,

Plaintiffs claim that they would have greater overtime opportunities and a more favorable work

schedule in the HMU. See Mentzer Dep. at 181. Moreover, Plaintiffs were passionate about

horses and the HMU. See Lanier Dep. at 58.

        In June 2006, Mentzer and Scully met with police Commander Contee and had a

discussion regarding their possible return to the HMU. See Scully Interrog. Answers at 1-2.

Scully learned that several officers within the HMU (about whom Scully had previously


        5
         The parties dispute whether Mentzer was requesting a “transfer” out of the HMU. At
his deposition, Mentzer denied that he was requesting a permanent reassignment out of HMU,
instead characterizing his request as a “temporary assignment.” Mentzer Dep. at 166.

                                                 5
complained) attacked Scully’s and Mentzer’s character and made threats about what might

happen if they returned to the unit. Id. at 2. These officers would not be moved out of the HMU.

Id. Contee told Scully that he would move Mentzer and Scully back to the HMU if they wanted

to go back. Id. However, Scully did not return to the HMU because of the continuing problems

in the unit. Id.

        Plaintiffs filed this action on February 15, 2006. During discovery, Plaintiffs produced

several recordings of MPD officers, including meetings with Police Chief Lanier, that were made

without prior approval of MPD and without consent of those recorded. Def. Stmt. ¶¶ 21-22.

MPD conducted an internal affairs investigation of these recordings in August 2008. Id. ¶ 23.

The internal affairs investigation concluded that Officer Mentzer should be disciplined. See

Def.’s Mem., Ex. H (undated MPD Internal Affairs Bureau Memorandum).

                                     II. LEGAL STANDARD

        Summary judgment is proper when “the pleadings, the discovery [if any] 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). 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, if

any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). In response, the

non-moving party must “go beyond the pleadings and by [its] own affidavits, or by the

depositions, answers to interrogatories, and admissions on file, designate specific facts showing


                                                  6
that there is a genuine issue for trial.” Id. at 324 (internal quotation marks omitted). All

underlying facts and inferences are analyzed in the light most favorable to the non-moving party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).

       The mere existence of a factual dispute, by itself, is insufficient to bar summary

judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 248. 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 non-moving party. Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987);

Liberty Lobby, 477 U.S. at 251-52 (the court must determine “whether the evidence presents a

sufficient disagreement to require submission to a jury or whether it is so one-sided that one party

must prevail as a matter of law”). “If the evidence is merely colorable, or is not sufficiently

probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249-50 (internal

citations omitted). “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). The adverse party must do more than simply “show that there is

some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 586 (1986). Conclusory assertions offered without any factual basis for

support do not satisfy an opponent’s burden to set forth “affirmative evidence” showing a

genuine issue for trial. Broaddrick v. Exec. Office of the President, 139 F. Supp. 2d 55, 65

(D.D.C. 2001) (citing Laningham, 813 F.2d at 1241).

                                        III. DISCUSSION

       Defendant has asserted five different bases for her Motion for Summary Judgment. First,


                                                  7
Defendant contends that Plaintiffs’ complaints concerning the HMU do not constitute protected

disclosures under the D.C. Whistleblower Protection Act (“D.C. WPA”). Second, Defendant

contends that Plaintiffs have not suffered any adverse employment action to provide a basis for

liability under Title VII or the D.C. Human Rights Act. Third, Defendant contends that there is

no evidence that the asserted non-discriminatory reasons for the employment actions at issue

were a pretext for retaliation. Fourth, Defendant claims that she cannot be held personally liable

under Title VII or the D.C. Human Rights Act. And fifth, Defendant raises defenses under the

statute of limitations and notice of claim statute with respect to alleged retaliatory acts occurring

prior to February 2005. The Court shall address each argument in turn.

A.     Protected Disclosures Under the D.C. Whistleblower Protection Act

       The D.C. WPA states “[a] supervisor shall not threaten to take or take a prohibited

personnel action or otherwise retaliate against an employee because of the employee’s protected

disclosure or because of an employee’s refusal to comply with an illegal order.” D.C. Code § 1-

615.53. The statute defines a protected disclosure as:

       any disclosure of information, not specifically prohibited by statute, by an employee
       to a supervisor or a public body that the employee reasonably believes evidences:

       (A) Gross mismanagement;

       (B) Gross misuse or waste of public resources or funds;

       (C) Abuse of authority in connection with the administration of a public program or
       the execution of a public contract;

       (D) A violation of a federal, state, or local law, rule, or regulation, or of a term of a
       contract between the District government and a District government contractor which
       is not of a merely technical or minimal nature; or

       (E) A substantial and specific danger to the public health and safety.


                                                  8
D.C. Code § 1-615.52(a)(6). A “public body” includes a member of the D.C. Council. Id. § 1-

615.52(a)(7). Defendant argues that Plaintiffs’ concerns—that certain HMU officers were not

punctual, failed to exercise the horses, and worked second jobs, and that management failed to

address those issues—do not amount to allegations of “gross mismanagement” as defined by the

D.C. WPA. See Def.’s Mem. at 7-8. Moreover, Defendant contends that Plaintiffs’ complaints

regarding the stabling of horses at Fort Dupont do not qualify as “disclosures” because the

information revealed was already public knowledge and known to the supervisors within MPD.

       The D.C. WPA itself does not define the term “gross mismanagement.” However, the

D.C. Court of Appeals has recognized that the federal whistleblower protection statute, 5 U.S.C.

§ 2302(b)(8), is instructive in interpreting the D.C. WPA. Wilburn v. District of Columbia, 957

A.2d 921, 925 (D.C. 2008). “For there to be a protected disclosure, ‘an employee must disclose

such serious errors by the agency that a conclusion the agency erred is not debatable among

reasonable people.’” Wilburn, 957 A.2d at 925 (quoting White v. Dep’t of the Air Force, 391 F.3d

1377, 1382 (Fed. Cir. 2004)). The term “gross mismanagement” has been defined as “a

management action or inaction which creates a substantial risk of significant adverse impact

upon the agency’s ability to accomplish its mission.” Kavanaugh v. Merit Systems Protection

Board, 176 Fed. Appx. 133, 135 (Fed. Cir. 2006) (citing White v. Dep’t of the Air Force, 63

M.S.P.R. 90, 95 (1994)). “Mere differences of opinion between an employee and his agency

superiors as to the proper approach to a particular problem or the most appropriate course of

action do not rise to the level of gross mismanagement.” White v. Dep’t of the Air Force, 391

F.3d at 1381. Moreover, “where a dispute is in the nature of a policy dispute, ‘gross

mismanagement’ requires that a claimed agency error in the adoption of, or continued adherence


                                                9
to, a policy be a matter that is not debatable among reasonable people.” Id. at 1383. Ultimately,

however, the issue is not whether the disclosures in fact evidenced gross mismanagement, but

whether the employees reasonably believed that they did so. See Zirkle v. District of Columbia,

830 A.2d 1250, 1259-60 (D.C. 2003). The “proper test” to determine whether an employee’s

belief is reasonable is whether a disinterested observer with knowledge of the essential facts

known to and readily ascertainable by the employee could reasonably conclude that the

government’s actions evidence gross mismanagement. Williams v. Johnson, 537 F. Supp. 2d

141, 156 (D.D.C. 2008) (citing Zirkle, 830 A.2d at 1250).

       There are two sets of “disclosures” at issue: (1) Plaintiffs’ disclosures to MPD senior

management regarding abuse and mismanagement within the HMU, as outlined in Officer

Mentzer’s September 11, 2003 letter to Assistant Chief of Police Broadbent; and (2) Plaintiffs’

meeting with D.C. Councilmember Graham regarding the stabling of horses at Fort Dupont.

Plaintiffs concede that their disclosures to their immediate supervisors are not at issue. See Pls.’

Mem. at 6-7. The first set of disclosures includes allegations that officers in the HMU made

false statements, negligently cared for their horses, submitted fraudulent requests for

reimbursement, and damaged relations with other mounted police units resulting in a deprivation

of training opportunities for HMU officers. See Sept. 11, 2003 Letter. Plaintiffs could have

reasonably believed that these disclosures constituted “a management action or inaction which

creates a substantial risk of significant adverse impact upon the agency’s ability to accomplish its

mission.” See Kavanaugh, 176 Fed. Appx. at 136. Defendant characterizes Plaintiffs’

complaints as relating to “minor matters [such] as [a] perceived lack of managerial skills.”

Def.’s Mem. at 8. However, the nature of these allegations is serious enough to permit a jury to


                                                 10
find that Plaintiffs reasonably believed their disclosures to evidence gross mismanagement by

HMU officials.

       With respect to Plaintiffs’ meeting with Councilmember Graham, the parties disagree

about whether Plaintiffs actually disclosed any new information. For a disclosure to be protected

by the whistleblower statute, it must contain information that is not publicly known. See

Meuwissen v. Dep’t of Interior, 234 F.3d 9, 12-13 (Fed. Cir. 2000) (applying federal

whistleblower statute). However, to award summary judgment, there must be no genuine issues

of material fact as to whether the content of Plaintiffs’ disclosures was public knowledge. See

Tabb v. District of Columbia, 605 F. Supp. 2d 89, 98 (D.D.C. 2009) (finding genuine issue of

material fact as to public knowledge of disclosures precluded grant of summary judgment).

Defendant contends that the location of the HMU in a federal stable was “public knowledge and

already known by plaintiffs’ supervisors and management.” Def.’s Mem. at 9. Plaintiffs

acknowledge that the stabling controversy was known within MPD but argue this is irrelevant

because it was unknown to Councilmember Graham. Pls.’ Mem. at 7. It is not apparent from the

summary judgment record assembled by the parties whether Plaintiffs actually disclosed any new

information to Councilmember Graham during their March 2004 meeting. However, Plaintiffs

had complained about specific details regarding the stabling of horses at Fort Dupont, see

Mentzer Dep. at 108, and it is probable that some of these details were not public knowledge

available to Councilmember Graham prior to the meeting. Defendant has failed to demonstrate

the absence of a genuine issue of material fact based on the present record, and therefore

summary judgment is inappropriate on this ground.




                                                11
B.     Adverse Employment Actions

       Defendant’s second basis for her summary judgment motion is her contention that

Plaintiffs have not suffered any adverse employment action that could form the basis for relief

under Title VII, the D.C. Human Rights Act, or the D.C. WPA. To make out a prima facie case

of retaliation under either federal or D.C. law, Plaintiffs must show that (1) they engaged in

statutorily protected activity; (2) they suffered an adverse employment action; and (3) there is a

causal connection between the two. See Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009)

(describing standard under Title VII); Howard Univ. v. Green, 652 A.2d 41, 45 (D.C. 1994)

(describing standard under D.C. Human Rights Act); Johnson v. District of Columbia, 935 A.2d

1113, 1117-18 (D.C. 2007) (describing standard under D.C. WPA). The Supreme Court has

recently clarified what constitutes an adverse employment action for purposes of Title VII.6 In

Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), the Supreme Court

explained that actions not directly related to employment terms, conditions, or status may be

actionable as retaliation under Title VII. See 548 U.S. at 61-64. A challenged action may be

considered retaliatory under Title VII if it would have dissuaded a reasonable worker from

making or supporting a charge of discrimination. Id. at 67. The Court emphasized that the

standard is objective but context-specific. Id. at 68-69. Thus, an action may be considered

retaliatory for certain employees but not for others. See id. at 69 (“A schedule change in an



       6
         The D.C. courts have consistently applied Title VII standards to the D.C. Human Rights
Act, so there is no need to separately analyze the standard for an adverse employment action
under the D.C. Human Rights Act. See Thong v. Andre Chreky Salon, 634 F. Supp. 2d 40, 44 n.2
(D.D.C. 2009); Elhusseini v. Compass Group USA, Inc., 578 F. Supp. 2d 6, 11 n.4 (D.D.C.
2008). The D.C. WPA also borrows its standards from the Title VII context. Johnson, 935 A.3d
at 1117-18.

                                                 12
employee’s work schedule may make little difference to many workers, but may matter

enormously to a young mother with school-age children.”)

       Plaintiffs claim they were subjected to a number of retaliatory actions: they were removed

from duty on the HMU; they were subjected to a hostile work environment; their police powers

were temporarily revoked after the incident involving the handcuffed Capitol police officer;

Sergeant Scully was publicly scolded in front of his subordinates and undermined by his

superiors’ refusals to follow through on investigations; Scully was given a Letter of Reprimand;

and Plaintiffs were investigated for making audio recordings of their superiors. See Pls.’ Mem.

at 12-13. Defendant denies that these actions satisfy the Burlington Northern standard. With

respect to the suspension surrounding the investigation of the Capitol police officer, Defendant

claims that it cannot be considered an adverse employment action because it did not result in

discipline and Plaintiffs were eventually reinstated. See Def.’s Mem. at 11. However, only one

of the cases cited by Defendant for this proposition involved a retaliation claim under Title VII,

and Burlington Northern has since made clear that any action can be retaliatory if the employee

could be reasonably dissuaded by it. The fact that Plaintiffs’ police powers were revoked for

approximately two months, during which they were denied opportunities for overtime, is enough

to find the suspension to be an adverse action. Defendant also claims that Plaintiff Mentzer’s

allegations regarding his unjustifiably poor performance rating and other disciplinary actions are

not actionable because Mentzer was never demoted or had his benefits or pay cut. Again,

however, Burlington Northern makes clear that retaliation is actionable under Title VII even if




                                                13
not directly connected to pay grade or status.7 To be actionable, the challenged conduct must be

materially adverse, producing significant, nontrivial harm to the employee. See 548 U.S. at 67-

68. In this case, Plaintiffs have produced enough evidence to permit a reasonable juror to

conclude that these actions may have dissuaded a reasonable worker from making or supporting a

charge of discrimination.

       Plaintiffs’ removal from duty in the HMU also qualifies as an adverse action under the

Burlington Northern standard, notwithstanding the fact that the conditions and privileges of

employment may have remained the same. There is ample evidence in the record of Plaintiffs’

commitment and devotion to the HMU, and a jury could easily conclude that detailing Plaintiffs

to a different division would have a punitive effect and discourage Plaintiffs from engaging in

protected activity. Plaintiffs have also produced evidence that in their current assignments they

experience a less desirable work schedule and are subject to redeployment, which may involve

long, unpredictable shifts. Defendant claims that Mentzer’s transfer out of the HMU cannot be

deemed materially adverse to him because he had actually requested the transfer. See Def.’s

Mem. at 11-12. However, the record on this point is disputed. While Mentzer did indicate that

he wanted an opportunity to work with a broader group of people within the Special Operations

Division to show that he was not a troublemaker, Mentzer testified at deposition that he never

sought a permanent transfer and has repeatedly been denied the opportunity to return to the


       7
         The Burlington Northern Court explained that Title VII establishes two separate
standards for what constitutes an adverse action—a more restrictive, employment-focused
standard for violations of Title VII’s substantive nondiscrimination provisions, and a more
expansive standard for violations of the statute’s antiretaliation provisions. Defendant’s
arguments regarding Plaintiffs’ pay status might prevail under the more restrictive standard for
discrimination claims, but they are an insufficient attack on the broader standard for retaliation
claims.

                                                 14
HMU. Thus, there is sufficient evidence for a jury to believe that Mentzer’s transfer was

materially adverse.

       Defendant similarly claims that Scully’s transfer could not be deemed materially adverse

because he was given an opportunity to return to the HMU in the summer of 2006 but refused to

do so unless certain conditions were met. See Def.’s Mem. at 13. Giving Scully an opportunity

to return in 2006 does not change the adversity of the initial transfer in 2004, although it may be

relevant to whether the transfer continued to be materially adverse after Scully was offered the

chance to return. Scully claims that he “orally conditioned his return upon creation of a work

environment that was non-hostile” and claims that the hostile work environment in the HMU

effectively created a “constructive discharge.” See Pls.’ Mem. at 10. The D.C. Circuit has held

that a hostile work environment can amount to retaliation under Title VII. See Hussain v.

Nicholson, 435 F.3d 359, 366 (D.C. Cir. 2006). However, in order to establish a hostile work

environment, Plaintiffs must show that they were subjected to “intimidation, ridicule, and insult

that is sufficiently severe or pervasive to alter the conditions of . . . employment and create an

abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (internal

citations and quotation marks omitted). To establish constructive discharge, Plaintiffs must

show that the conditions in the HMU were “so intolerable that a reasonable person in the

employee’s position would have felt compelled” to avoid it. Pa. State Police v. Suders, 542 U.S.

129, 141 (2004).

       There is insufficient evidence in the record to permit a jury to conclude that a hostile

work environment existed either within or without the HMU. Although Plaintiffs have identified

individual adverse actions that may be considered retaliatory under Burlington Northern, they


                                                 15
have failed to identify a pattern of abusive conduct that rises to the level of establishing a hostile

work environment claim. Plaintiffs point to evidence that police management had decided not to

conduct any investigations into misconduct by HMU officers as contributing to an “atmosphere

of harassment.” See Pls.’ Mem. at 8. But the record evidence cited consists of conclusory

allegations by the Plaintiffs themselves, see, e.g., Mentzer Dep. at 120 (discussing “the extremes

they went through to retaliate and paint us as being disgruntled, racist, crazy liars . . . .”), and

isolated incidents over a period of years, see Scully Dep. at 67-68 (discussing April 14, 2003

meeting in which Scully was undermined by his supervisor). Conclusory allegations not

supported by facts in the record are not credited on a motion for summary judgment. Ass’n of

Flight Attendants-CWA, AFL-CIO v. U.S. Dep’t of Transp., 564 F.3d 462, 465 (D.C. Cir. 2009).

“Even a few isolated incidents of offensive conduct do not amount to actionable harassment.”

Stewart v. Evans, 275 F.3d 1126, 1134 (D.C. Cir. 2002); see also Baskerville v. Culligan Int’l

Co., 50 F.3d 428, 430 (7th Cir. 1995) (holding that nine incidents spread over seven months did

not constitute sexual harassment because the supervisor never touched the employee and the

incidents were not sufficiently severe or pervasive). Plaintiffs did not directly allege a claim of

hostile work environment in their complaint, and there is not enough evidence of a pervasive,

abusive workplace to permit a finding that one was created in retaliation for Plaintiffs’ protected

activities.

C.      Evidence that Adverse Actions Were Pretext for Retaliation

        In order to prevail on their retaliation claims, Plaintiffs must ultimately show not only that

they suffered adverse actions, but that those actions were causally connected to their protected

activities. To establish a prima facie case of retaliation, Plaintiffs “merely need[] to establish


                                                   16
facts adequate to permit an inference of retaliatory motive.” Forman v. Small, 271 F.3d 285, 299

(D.C. Cir. 2001). Once they establish a prima facie case, “the burden shifts to the employer to

produce a legitimate, nondiscriminatory reason for its actions.” Jones v. Bernanke, 557 F.3d 670,

677 (D.C. Cir. 2009) (internal quotation marks omitted). However, once an employer proffers a

legitimate, nonretaliatory reason, the presumption raised by the prima facie case is rebutted, and

the only question for the district court is whether the plaintiff has produced sufficient evidence to

defeat the proffer and support a finding of retaliation. Na’im v. Rice, 577 F. Supp. 2d 361, 379

(D.D.C. 2008); Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). In

reviewing a motion for summary judgment, the court “looks to whether a reasonable jury could

infer . . . retaliation from all the evidence, which includes not only the prima facie case but also

the evidence the plaintiff offers to attack the employer’s proffered explanation for its action and

other evidence of retaliation.” Jones v. Bernanke, 557 F.3d at 677 (internal quotation marks

omitted). The plaintiff bears the burden of persuasion to show that a defendant’s proffered non-

retaliatory reason for the challenged action is a pretext. Morgan v. Fed. Home Loan Mortgage

Corp., 328 F.3d 647, 654 (D.C. Cir. 2003). A plaintiff can carry this burden by either showing

that the proffered reason is false, Montgomery v. Chao, 546 F.3d 703, 707 (D.C. Cir. 2008), or

“by presenting enough evidence to allow a reasonable trier of fact to conclude that ‘the

employer’s proffered explanation is unworthy of credence.’” Desmond v. Mukasey, 530 F.3d 944,

962 (D.C. Cir. 2008) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)).

“If the employer’s stated belief about the underlying facts is reasonable in light of the evidence,

however, there ordinarily is no basis for permitting a jury to conclude that the employer is lying

about the underlying facts.” Brady v. Office of the Sergeant at Arms, 520 F.3d at 495. “In


                                                 17
exceptional circumstances, the evidence supporting a plaintiff’s prima facie case may, on its own,

suffice to defeat the proffer’s presumption of validity and thus render summary judgment

improper.” Woodruff v. Peters, 482 F.3d at 530.

        Defendant has asserted that there are legitimate, nonretaliatory reasons for each of the

adverse actions suffered by Plaintiffs. The Court shall review each of these explanations and

what, if any, evidence Plaintiffs have produced to support their view that the actions were in fact

retaliatory.

        1.      Plaintiffs’ Administrative Leave Pending Investigation

        Plaintiffs have asserted that their two-month suspensions following the incident in which

they handcuffed a Capitol police officer were retaliatory. However, Defendant maintains that

Plaintiffs were placed on administrative leave (with pay, but without police powers) as part of a

routine investigation into the alleged assault by Plaintiffs. Defendant Lanier testified in her

deposition that if a police officer is alleged to have committed any act that might be criminal, it is

typical for that officer to be placed on administrative leave during the course of the investigation

until the U.S. Attorney’s Office declines to press charges. Lanier Dep. at 21. The evidence

shows that the allegations involving Mentzer and Scully were referred to the U.S. Attorney’s

Office and that a Letter of Declination was issued on June 3, 2004. See Pls.’ Mem., Ex. 1 (June

8, 2004 Memorandum from MPD Office of Prof’l Responsibility). Plaintiffs returned to duty

shortly thereafter.

        Plaintiffs claim that the MPD investigation was a sham. Mentzer testified at his

deposition that according to his understanding, “the investigation as a whole” was completed by

the Capitol Police within two days after the incident, clearing Plaintiffs of any wrongdoing, yet


                                                 18
Plaintiffs were suspended by MPD five days after the incident. See Mentzer Dep. at 130-33.

Scully testified at his deposition that Internal Affairs told him it was “procedure” for him to be

suspended during the investigation but that they never provided him with a written policy, which

he had requested. See Scully Dep. at 109-10. Plaintiffs also cite to a June 8, 2004 Memorandum

from the MPD Office of Professional Responsibility in support of their view that Plaintiffs “had

been cleared of any wrongdoing—almost immediately after the incident.” See Pls.’ Mem. at 12.

However, the June 8, 2004 Memorandum simply does not support Plaintiffs’ view—it was

written nearly two months after the April 9, 2004 incident and states that “[t]he Force

Investigation Team has begun a preliminary review of this case in consultation with the United

States Attorney’s Office.” See Pls.’ Mem., Ex. 1. In addition, Plaintiffs do not provide any basis

for Mentzer’s knowledge of the Capitol Police’s investigation. Mentzer’s unsubstantiated

testimony that the Capitol Police completed their own investigation exonerating Plaintiffs within

two days, combined with Scully’s testimony that MPD failed to explain in writing why he was

suspended, does not do anything to actually discredit the explanation proffered by Defendant:

that MPD performed its own investigation in response to the Capitol Police officer’s complaint

against Plaintiffs and that Plaintiffs were placed on administrative leave until the United States

Attorney’s Office declined to proceed with the case.

       Ultimately, Plaintiffs must produce enough evidence to permit a reasonable jury to

conclude that MPD’s investigation and suspension of Plaintiffs were actually motivated by

retaliatory animus. Without a credible attack on Defendant’s proffered nonretaliatory rationale,

Plaintiffs are left with only the fact that Plaintiffs were suspended just 17 days after their meeting

with Councilmember Graham. Temporal proximity between a protected activity and an adverse


                                                 19
action can establish a prima facie case of retaliation if the employer had knowledge of the

protected activity. See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001). But only

in “exceptional circumstances [will] the evidence supporting a plaintiff’s prima facie case . . . ,

on its own, suffice to defeat the proffer’s presumption of validity and thus render summary

judgment improper.” Woodruff v. Peters, 482 F.3d at 530. Moreover, the D.C. Court of Appeals

has held that with respect to claims under the D.C. WPA, “an inference of retaliation cannot rest

solely on ‘temporal proximity’ (even if it is established) where the opportunity for retaliation

conflicts with the opponent’s explicit evidence of an innocent explanation of the event.”

Johnson v. District of Columbia, 935 A.2d 1113, 1120 (D.C. 2007). In Johnson, the Court found

there was insufficient evidence of causation where the plaintiffs, who were D.C. police officers,

had failed to rebut the evidence showing that the real reason for their temporary suspension was

an excessive force complaint filed against them. See 935 A.2d at 1120-22. The Court noted that

the plaintiffs had the burden of “producing evidence to contradict the [employer’s] explanation

for why the investigation was initiated and why the police powers were temporarily revoked.”

Id. at 1121. Here, Plaintiffs’ evidence of retaliation amounts to little more than suspicion, which

the D.C. Court of Appeals has explicitly held is insufficient to survive summary judgment. See

Johnson, 935 A.2d at 1120. Based on the evidence in the record, a jury could not reasonably

conclude that the actual motivation for the suspension was retaliation for Plaintiffs’ protected

disclosures.8

       2.       Sergeant Scully’s Assignment Away from the Horse Mounted Unit


       8
        Plaintiffs do not argue, and there is no evidence in the record to indicate, that Plaintiffs’
meeting with Councilmember Graham constituted protected activity under Title VII or the D.C.
Human Rights Act. Thus, only Plaintiffs’ D.C. WPA claim is at issue.

                                                 20
       Defendant asserts that Scully was detailed to the Special Events Branch as a temporary

detail in August 2004 because of a shortage of sergeants in that branch and a need for additional

staffing for the 2005 presidential inauguration. Defendant Lanier testified at her deposition that

the HMU had two sergeants for only five or six personnel, whereas the Special Events Branch

had in excess of 40 personnel and was in need of additional sergeants because of the 2005

inauguration and other events. See Lanier Dep. at 85-86. Lanier also testified that she had told

Scully she hoped to be able to transfer him back to the HMU after the inauguration, but she was

unable to do so because she still had a critical shortage of sergeants in Special Events after the

inauguration. Id.

       Scully claims this explanation is pretextual because, according to his deposition

testimony, another sergeant was moved into the HMU shortly after Scully was transferred out,

without Scully being given the opportunity to return. See Pls.’ Mem. at 14; Scully Dep. at 120-

21. Additionally, Scully claims that he was given conflicting explanations for his transfer. He

was once told he was being transferred because of an investigation into his alleged misconduct,

but later was told that no such investigation had taken place. See Scully Dep. at 113, 117. Scully

has not produced any evidence that there was not, in fact, a shortage of sergeants in Special

Events branch. Nor has he pointed to other evidence in the record to substantiate his testimony

that another sergeant was moved into HMU just after Scully was detailed out.9

       In addition, Scully has no evidence to indicate that he was transferred as a consequence of



       9
        Defendant Lanier testified at her deposition that Sergeant Poskus was already in the
HMU when Scully was detailed out. See Lanier Dep. at 81-82. Plaintiffs alleged in their
complaint that Poskus was moved into the HMU immediately after Scully was detailed out, see
Compl. ¶ 57, but they have produced no evidence to support this allegation.

                                                 21
his protected activity. His transfer occurred more than four months after he met with

Councilmember Graham.10 The D.C. Court of Appeals in Johnson expressly rejected such a

four-month period as too long to permit an inference of causation between protected disclosures

and the adverse action. See Johnson, 935 A.2d at 1120 (applying the D.C. WPA); see also

Breeden, 532 U.S. at 273 (2001) (applying Title VII and citing with approval cases in which

three- and four-month periods were held insufficient to establish causation). Plaintiffs do

contend that the adverse actions against them were “continuing violations.” See Pls.’ Stmt. ¶ 28.

However, they fail to identify a chain of specific actions to temporally connect their protected

activities to their adverse actions.11 Indeed, most of Plaintiffs’ allegations of an “atmosphere of

harassment” pertain to events that occurred in mid-2003. See Mentzer Dep. at 71-72, 77-78

(discussing April 2003 decision not to investigate misconduct in the HMU). Accordingly, a jury

could not reasonably conclude that Sergeant Scully’s August 2004 transfer was motivated by

retaliatory animus.

       Scully also claims that his continually being denied the opportunity to return to the HMU

was based on retaliatory animus. However, there is even less evidence to connect Scully’s non-

return to the HMU to his protected activity than there is with respect to his August 2004 transfer

because these denials of a return to the HMU are even further removed in time from his protected



       10
         Plaintiffs have not identified any protected activities that occurred between the March
29, 2004 meeting with Councilmember Graham and the March 2005 filing of the EEO
complaint.
       11
          The protected activities predating Scully’s transfer in August 2004 include Scully’s
meeting with Councilmember Graham in March 2004 and the complaints made to MPD
management and culminating in the September 11, 2003 letter. Plaintiffs do not specifically
identify any other protected activities in which they have engaged prior to August 2004.

                                                 22
activity. Scully claims that he made repeated requests to return to the HMU that were denied,

and when finally offered the chance to return in 2006, he could not exercise that option because

MPD had failed to discipline the officers in the HMU who had undermined his authority. The

only instance of protected activity that is identified in the record during this time period is the

March 2005 filing of the charge of discrimination. The events occurring in 2006 are too far

removed from this protected activity to permit an inference of retaliatory motive. And Scully

does not in fact attribute any of his denials to that protected action. See Scully Dep. at 121

(“They wanted me out of that unit because . . . [of] the development of the calvary [sic] barn, my

desire to move the unit forward, and the desire to get us a good home is something that the D.C.

Government, the citizens of the D.C., the Metropolitan Police would be proud of, and . . . that I

. . . inadvertently embarrassed [Asst. Police Chief] Broad[b]ent in front of [Councilmember]

Graham.”) Accordingly, there is no evidence that Defendant’s denials of his return to the HMU

were motivated by retaliatory animus.

       3.      Officer Mentzer’s Discipline & Performance Evaluations

       Defendant has also proffered legitimate reasons for investigating Mentzer for

insubordination in early 2005, disciplining him for failing to report to a medical appointment on

a day he was working, and giving him a low performance rating. With respect to the

investigation for insubordination, Defendant claims that this was a legitimate investigation

following a supervisor’s allegation that Mentzer refused to return agency equipment for use in

the presidential inauguration. Def.’s Mem. at 14. Mentzer does not dispute that his supervisor

made this allegation and does not offer any evidence to rebut Defendant’s proffered explanation.

Accordingly, Mentzer cannot survive summary judgment with respect to this adverse action.


                                                  23
       Defendant also claims that Mentzer was justifiably disciplined for failing to show up for a

mandatory police clinic appointment on May 11, 2005 because he was working that day. Def.’s

Mem. at 15. Mentzer does not contest that he missed the appointment or that he was working.

Rather, he contends that MPD should not have disciplining him because he had a valid excuse

for missing the appointment: he had lost track of his calendar due to the recent death of his

grandmother and thought the appointment was for a different day. See Pls.’ Mem., Ex. G (May

25, 2005 Memorandum) at 2. In support of his argument that his discipline was pretext, he cites

Defendant Lanier’s deposition testimony in which she first says that attending a funeral would be

an appropriate reason to miss a clinic appointment and later says that she cannot answer a

hypothetical question as to whether it would be appropriate to discipline an officer who was

“attending to family members who had had a death in the family.” Lanier Dep. at 90-95. There

is no evidence in the record, however, that Mentzer was either attending a funeral or attending to

family members on the day in question. This deposition testimony by Defendant—based on

hypothetical facts that contradict the undisputed record—cannot create a triable issue of fact for

the jury as to whether Defendant’s explanation is pretext. Accordingly, Mentzer cannot survive

summary judgment with respect to his discipline for missing a medical appointment.

       With respect to Mentzer’s performance evaluation, Defendant asserts that he received the

performance ratings he deserved. Ultimately, the question before the Court is not whether the

negative evaluation was justified or fair, but whether the employer honestly believed it to be

accurate. See Fischbach v. D.C. Dep’t of Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996). Mentzer

has provided no evidence to suggest that his performance evaluation was unjustifiably low or to

suggest that MPD believed it to be anything other than accurate. Moreover, Mentzer has


                                                24
produced no evidence to connect this performance evaluation to any statutorily protected activity.

Accordingly, he cannot survive summary judgment with respect to this adverse action.

        4.     Officer Mentzer’s Assignment Away from the Horse Mounted Unit

        Defendant asserts that the reason that Mentzer was assigned out of the HMU is because

he requested a transfer. Mentzer disputes this, claiming that he “never requested to be removed

from the HMU.” See Pls.’ Stmt. ¶ 18. In support of this statement, he cites his deposition

testimony explaining that he had merely requested a “temporary assignment” elsewhere in the

Special Operations Division. See Mentzer Dep. at 165-66. Mentzer testified that he made this

request in December of 2004 and “during” 2005. Id. Mentzer explained that he was not

requesting a “transfer,” which he considered to mean a permanent reassignment. Id. at 166.

However, the record clearly indicates that Mentzer asked to be removed from the HMU in June

2005:

        Q:     When was the last time you worked there [in the HMU]?

        A:     June of ‘05.

        Q:     What were the circumstances surrounding your transfer out?

        A:     The harassment I was suffering from Sergeant Poskus and Officer Lee,
               Stewart, and Rodriguez. And I mean, I felt that I was going to be physically
               assaulted by one of them, not all of them. I ended up—Chief Robinson sent
               me over to the Special Events Branch.

        Q:     Okay. But I just want to understand whether this is at your request or
               whether this is involuntarily because there had been the request to be
               transferred out earlier?

        A:     It was my request.

Mentzer Dep. at 178. Mentzer also indicates in his interrogatory answers that he had requested



                                               25
in late 2004 to be detailed to Special Events. See Pls.’ Suppl. Ex. 1 (Mentzer Interrog.

Responses) at 9. Mentzer does not argue that he was forced out of the HMU by the harassment

of the officers in retaliation for his protected activities; he merely argues that he did not, in fact,

want to be out of the unit. See Pls.’ Mem. at 10. But even if Mentzer did not “want out of the

unit,” as he testifies at one point, see Mentzer Dep. at 165, there can be no genuine dispute that

he ultimately asked to be removed from the unit in 2005. Reading the facts in the light most

favorable to Mentzer, Mentzer requested to be temporarily removed from the unit in June 2005.

And there is no concrete evidence in the record that Mentzer requested to return to the HMU or

that any of his requests were denied.12 Even if it could be said that Scully spoke on behalf of

Mentzer when making his own requests to return to the HMU, there is no evidence in the record

to actually connect the denials to any protected activity such that a jury could infer a retaliatory

motive. In sum, Mentzer has failed to rebut Defendant’s explanation that he was transferred out

of the HMU at his own request.13

        5.      Other Adverse Actions

        In their opposition to Defendant’s motion for summary judgment, Plaintiffs cite the Letter


        12
           Mentzer states in his opposition brief that “[h]e has repeatedly sought to be returned to
the unit, but has been denied.” Pls.’ Mem. at 10. However, he provides no citation to record
evidence that supports this view, and the Court has not discovered any.
        13
          Defendant also argues that because Mentzer’s request to move out of the HMU was
voluntary, it cannot constitute an adverse action. See, e.g., Fenney v. Dakota, Minn. & E. R.R.
Co., 327 F.3d 707, 717 (“[A] plaintiff cannot state an adverse employment action if he
voluntarily resigned . . . .”). To the extent that Mentzer’s request was truly voluntary, this is an
alternative ground for summary judgment. However, because the record, construed most
favorably to Mentzer, indicates that Mentzer only requested a temporary transfer out of the
HMU, this rationale does not completely support summary judgment. Accordingly, the Court
treats voluntariness of the move to another unit as the employer’s proffered explanation which
Mentzer must show was pretext.

                                                   26
of Reprimand issued to Scully in March 2005 as an example of a retaliatory action. See Pls.’

Mem. at 12. The only evidence of this Letter of Reprimand in the record is in Scully’s deposition

testimony, where Scully explains that he was written up by Defendant Lanier for using an

expletive in an email to a lieutenant. Plaintiffs have not produced any evidence suggesting that

Defendant’s rationale for issuing the Letter of Reprimand was pretextual; instead they simply

argue that the Letter of Reprimand was “one step in a progressive discipline process that can

support lost pay in future instances and harm career advancement.” Pls.’ Mem. at 12. Plaintiffs

also do not explain how this Letter of Reprimand is causally connected to Scully’s protected

activity, other than to list this action as one in a list of several allegedly retaliatory actions that

followed Plaintiffs’ protected disclosures in 2004 and earlier.14 See Pls.’ Mem. at 8-12. This is

not sufficient evidence to even make out a prima facie case of retaliation.15 Accordingly, there is

no genuine issue of material fact for trial regarding the Letter of Reprimand.

        Plaintiffs have also claimed that Defendant’s investigation into Plaintiffs’ tape recording

of MPD officers without their permission was a retaliatory act. Defendant, however, has asserted



        14
           Plaintiffs do not argue, either in their Complaint or their opposition brief, that the
March 2005 Letter of Reprimand is causally connected to the filing of the charge of
discrimination, which occurred on March 30, 2005. It is also not clear from the record whether
the Letter of Reprimand was issued after the charge of discrimination was filed (in which case it
must have been on March 31, 2005 if Scully’s testimony is correct) or whether Defendant was
aware of the charge of discrimination at the time the Letter of Reprimand was issued. Thus,
Plaintiffs have not put forth evidence to establish a prima facie case of retaliation based on
temporal proximity to the charge of discrimination.
        15
           It should be noted that Defendant does not address this incident in her opening or reply
briefs in support of summary judgment. Although this Court has discretion in such
circumstances to treat unopposed arguments as conceded, the Court declines to do so here
because Plaintiffs did not include any allegations regarding the Letter of Reprimand in their
Complaint and have barely made any argument about it in their opposition.

                                                    27
a legitimate justification for that investigation—that the tape recordings were made in violation

of police department policy, specifically, General Order 304.04. See Def.’s Mem. at 16; Def.’s

Mem., Ex. H (undated MPD Internal Affairs Bureau Memorandum). Plaintiffs do not deny that

they made the tape recordings but contend that their conduct was lawful and that Defendant’s

investigation and charges—including referral to the U.S. Attorney’s Office for possible criminal

charges—are therefore unsubstantiated. See Pls.’ Mem. at 12-13. Even if Plaintiffs’ conduct

was lawful, they cannot survive summary judgment unless they present evidence sufficient to

attack Defendant’s reasonable belief that the conduct may have been unlawful. See Fischbach,

86 F.3d at 1183 (“Once the employer has articulated a non-discriminatory explanation for its

action . . . the issue is not the correctness or desirability of the reasons offered but whether the

employer honestly believes in the reasons it offers.”) (internal quotation marks omitted).

Plaintiffs have failed to provide any evidence that suggests Defendant’s investigation was

unreasonable or a sham. Therefore, they cannot survive summary judgment on this issue.

D.      Personal Liability

        Defendant argues neither the D.C. Whistleblower Protection Act, the D.C. Human Rights

Act, nor Title VII permits individual supervisors to be named as defendants. Def.’s Mem. at 9,

16. However, as noted above, see supra note 1, Plaintiffs have sued Defendant Lanier only in her

official capacity, and therefore they have not stated a claim against any individual supervisors.

E.      Statute of Limitations and Notice of Claim Statute

        In addition to the defenses on the merits, Defendant claims that some or all of Plaintiffs’

claims are barred by the statute of limitations or by Plaintiffs’ failure to notify the District of

claims against it in compliance with D.C. Code § 12-309. See Def.’s Mem. at 17-19. Under the


                                                   28
notice of claim statute, a plaintiff must notify the District of any potential claim against it within

six months after the injury or damage was sustained. See D.C. Code § 12-309. Plaintiffs’ notice

of claims was served on the District on July 20, 2005. Defendant therefore claims that Scully’s

claim of retaliatory transfer in August 2004 is barred. Similarly, Defendant claims that the one-

year statute of limitations for D.C. Human Rights Act and D.C. WPA claims, see D.C. Code

§§ 2-1403.16, 1-615.54(a), bars any claims accruing before February 15, 2005. See Def.’s Mem.

at 18-19. Plaintiffs argue that their claims did not accrue before March 2005 and therefore these

defenses are inapplicable. Because the Court finds that Plaintiffs have not produced enough

evidence to survive summary judgment on any of their claims, however, the Court need not

determine whether any of Plaintiffs’ claims are barred by the statute of limitations or the notice

of claim statute.

                                        IV. CONCLUSION

       For the foregoing reasons, the Court shall GRANT Defendant’s Motion for Summary

Judgment in its entirety. An appropriate Order accompanies this Memorandum Opinion.




Date: January 6, 2010

                                                              /s/
                                                       COLLEEN KOLLAR-KOTELLY
                                                       United States District Judge




                                                  29
