                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA



   VANESSA COLEMAN,

                          Plaintiff,

                         v.                           Civil Action 09-00050 (HHK)

   DISTRICT OF COLUMBIA, et al.,

                          Defendants.



                              MEMORANDUM OPINION & ORDER

       Vanessa Coleman, a former District of Columbia employee, who served in its Fire and

Emergency Medical Services Department (“FEMS”), brings this action against the District of

Columbia, Dennis Rubin, Chief of FEMS, in his official capacity, and Brian Lee, Assistant Chief

of FEMS, in his individual capacity. Coleman asserts causes of action based on alleged

violations of the D.C. Whistleblowers Act, D.C. Code §§ 1-615.51 et seq., and 42 U.S.C. § 1983,

and for negligent hiring, training and supervision.

       Before the Court is Coleman’s Motion to Amend her First Amended Complaint [#31].

Upon consideration of the motion, the opposition thereto, and the record of this case, the Court

concludes that the motion should be denied.

                                                 I.

       At the time of the incidents which gave rise to this suit Coleman held the rank of Captain.

Due to circumstances about which the parties dispute, Coleman was instructed by FEMS to

complete a fitness for duty examination, an examination which included a psychological
evaluation. Coleman refused to complete the examination. On January 13, 2009, FEMS notified

Coleman of proposed disciplinary action for insubordination based on her failure to complete the

examination as ordered on three occasions. See Defs.’ Opp’n to Pl.’s Mot. for Leave to File a

Second Am. Compl. (“Defs.’ Opp’n”) Ex. A at 1. The notice further stated that a trial would

take place before a FEMS Fire Trial Board (“Trial Board”).

       In July 2009, the hearing before the Trial Board concluded and on September 1, 2009,

Dennis Rubin, Chief of FEMS, issued a Trial Board Final Letter of Decision. See Defs.’ Opp’n

Ex. B (“Decision Letter”). In his decision letter, Chief Rubin notified Coleman that the Trial

Board had found her guilty of two of the three charges of insubordination and that he was

adopting the Trial Board’s recommendation that she be demoted to the rank of Sergeant and

ordered her to submit to a full fitness for duty evaluation, including a psychological examination,

by October 1, 2009. Id. at 1. Chief Rubin also informed her that “[f]ailure to complete the

fitness for duty tests will result in termination, as recommended by the Fire Trial Board.” Id.

                                                II.

       Coleman moves to amend her first amended complaint to include additional factual

allegations against Chief Rubin and to sue him in his individual capacity. The crux of Coleman’s

motion is that Chief Rubin himself acted improperly because he increased the disciplinary

measures recommended by the Trial Board. Defendants oppose Coleman’s motion because

Coleman’s allegations against Chief Rubin have no basis in fact such that any amendment of the

complaint to include them would be futile.




                                                 2
       Coleman contends that Chief Rubin (1) demoted her to the Trial Board’s lowest

recommended rank1 and (2) exceeded the Trial Board’s recommendation when he ordered her to

complete a fitness for duty examination that included a psychological and medical component to

avoid termination.2 Defendants rejoin that Chief Rubin merely adopted the Trial Board’s

recommendations and that Coleman’s allegations regarding the Trial Board’s conclusions and

Chief Rubin’s conduct “is wholly refuted by the plain terms of the Trial Board’s Findings and

Recommendations” Defs.’ Opp’n at 4. While the Court does not agree that the “plain terms of

the Trial Board’s Findings and Recommendations” refute Coleman’s allegation that Chief Rubin

added a requirement that she undergo a psychological evaluation, it agrees with Defendants that

Coleman should not be allowed to amend her complaint to sue Chief Rubin in his individual

capacity.

       First, regarding Coleman’s demotion, the Fire Trial Board did not make an either/or

recommendation as Coleman contends. Rather, the Board recommended that Coleman be

demoted once for each of the two charges that were found against her. The Board’s

recommendation explicitly stated: “In determining a penalty, the Trial Board Panel . . .

recommend[s] that [Coleman] be demoted to the rank of Lieutenant for Charge I, Specification 1,

and then demoted to the Rank of Sergeant for Charge 1, Specification 3.” Defs.’ Opp’n Ex. B at




       1
               Coleman claims that the Trial Board recommended that she be demoted either to
the rank of Lieutenant or to the lower rank of Sergeant and that Rubin demoted her to Sergeant.
       2
                  According to Coleman, “there was no recommendation by the Fire Trial Board
that . . . [she] should complete a psychological evaluation upon threat of termination.” Pl.’s
Mem. in Support at 4.

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12 (emphasis added). Therefore, Chief Rubin by no means exceeded the Fire Trial Board’s

recommendation regarding Coleman’s demotion.

       Read in context, Coleman also misstates the Trial Board’s recommendation regarding the

requirement that she submit to a fitness for duty examination. Coleman claims that this

recommendation did not include a requirement that she submit to a psychological evaluation.

Thus, Coleman argues, Chief Rubin’s requirement that she “undergo a complete fitness for duty

evaluation, which includes a medical and psychological component” required her to do more than

the Trial Board recommended. Coleman’s argument cannot be sustained. The Trial Board

specifically conditioned its recommendations upon her completion of the fitness for duty exam

and stated that her failure “to complete any aspect of the examination will be grounds for

immediate termination, and not the overall recommended demotion to the rank of Sergeant.”

Defs.’ Opp’n Ex. B at 12 (emphasis added). The record of this case clearly shows that the fitness

for duty examination to which the Trial Board referred included a psychological evaluation. The

record of this case also shows that Coleman was aware that the fitness for duty examination

included a psychological evaluation. Indeed, it was the requirement that she submit to such an

examination, one that included a psychological evaluation, that was the genesis of this suit and

the subject of her motion for a temporary restraining order and motion for a preliminary

injunction. Therefore, Chief Rubin’s decision letter indicating that Coleman must submit to a

fitness for duty examination, which included a psychological evaluation, did not exceed the Trial

Board’s recommendation.




                                                4
       The Court is not required to accept Coleman’s conclusions and inferences regarding

Chief Rubin’s alleged improper activities in his individual capacity if there is no support for

them. Because Coleman provides no factual basis for suing Chief Rubin in his individual

capacity her proposed amendment will not be permitted because it is futile.

                                                III

       For the foregoing reasons, it is this 14th day of January 2010, hereby

       ORDERED that plaintiff’s “Motion for Leave to Amend First Amended Complaint”

[#31] is DENIED.



                                                              Henry H. Kennedy, Jr.
                                                              United States District Judge




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