THOMAS v. DISTRICT OF COLUMBIA
MEMORANDUM AND OPINION: It is hereby ORDERED that 36 Defendant's Motion for Summary Judgment be GRANTED. A separate Order accompanies this Memorandum Opinion. Signed by Judge Christopher R. Cooper on 09/16/2016. (lccrc3)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MICHAEL D. THOMAS,
Case No. 1:13–cv–1087 (CRC)
DISTRICT OF COLUMBIA,
Former District of Columbia Metropolitan Police Department (“MPD”) officer Michael
Thomas, while off duty and in another jurisdiction, shot an unarmed civilian who he believed
had tried to burgle his truck. Following an internal investigation and an administrative hearing,
MPD terminated Thomas on the grounds that the shooting was unjustified and violated several
MPD policies. Thomas, who is African-American, responded by suing the District of Columbia
for race discrimination. He disputes the Department’s factual findings regarding the incident and
claims the MPD has disciplined non-African-American officers less severely for comparable
infractions. The District now moves for summary judgment. Finding that Thomas has not
offered any evidence to suggest that he was terminated because of his race, the Court will grant
the District’s motion and dismiss the case.
A. The September 13, 2009 Incident
The following facts are drawn from police reports of the incident that led to Thomas’s
termination and materials cited by the parties from subsequent MPD administrative proceedings.
Thomas was off-duty in the early hours of September 13, 2009. Def.’s Mot. Summ. J. (“MSJ”)
Ex. B, 10. While he watching television in bed at a residence in Hyattsville, Maryland, Thomas
heard his key fob sound an alarm, potentially indicating that someone was breaking into his
truck. From the front window of the house, Thomas saw a stranger—later identified as Julio
Lemus—standing next to the truck. Thomas grabbed his MPD-issued badge and gun and ran to
the front porch. Id. According to Thomas, he twice identified himself as a police officer and
asked Mr. Lemus to move on. When Lemus refused, Thomas walked to within approximately
four feet of him. Lemus then asked, “That’s how you are going son?” Id. Thomas responded,
“Police, just leave,” and shifted his belt so Lemus could see his badge and gun. At that point
Thomas claimed Lemus began to approach him and reached into the pocket of his sweatshirt.
Purportedly fearing for his safety, Thomas drew his gun and shot Lemus twice. Lemus survived.
There was no damage to Thomas’s truck.
Lemus provided investigators a somewhat different account. He testified that he had
been walking home from his cousin’s nearby home, where the two had been drinking heavily.
Def.’s MSJ Ex. C, 6. Lemus explained that he stopped next to Thomas’s truck and attempted to
urinate, placing a bottle of beer on the truck in the process. Id. At this point, he heard something
from behind and turned to see Officer Thomas “charging” at him. Id. at 6. He raised his hands,
but Thomas continued to approach and pulled his gun. Lemus insisted that Thomas never
identified himself as a police officer. Yet as he turned to run away, Thomas shot him in the side
and leg. Lemus denied ever walking toward Thomas or provoking him in any way. Lemus was
B. MPD’s Investigation of the Incident
MPD conducted an internal investigation of the incident, which involved several levels of
administrative review. First, the Force Investigations Branch of MPD’s Internal Affairs Bureau
conducted a field investigation. Detective James King was “assigned as the lead investigator and
investigated the case under the direction of Lieutenant Guy Middleton of the Force
Investigations Branch.” See Def.’s MSJ Ex. B, 11. Detective King, in his initial report, found
the shooting to be justified. Id. at 23–24. King wrote that “Officer Thomas reacted to what he
perceived as a threat that could result in death or serious bodily injury and was in fear of his life
when he discharged his [firearm].” Id. at 23. Lieutenant Middleton disagreed. Middleton cited
numerous flaws in King’s report, including its failure to consider that Thomas had no lawenforcement authority in Maryland. Id. He added, moreover, that the shooting occurred
following a series of questionable decisions by Thomas, such as failing to notify local police
before confronting a person suspected of a non-violent property crime and not having less-thanlethal weapons at hand. Id. at 5. The Commanding Officer of the Force Investigations Branch
reviewed both reports, ultimately recommending to the Use of Force Review Board that
Thomas’s actions were “Not Justified, Not Within Department Policy.” Id. at 3. The Board
concurred and accordingly referred the case to MPD’s Disciplinary Review Branch for violations
of MPD General Orders pertaining to the use of deadly force. Def.’s MSJ Ex. B, 1.
Within the Disciplinary Review Branch, an Adverse Action Panel (“Panel”) reviewed the
case. The Panel held a hearing at which Thomas, Lemus, and other witnesses testified, including
Detective King. Notably, King testified against Thomas and appeared to retract his earlier
assessment that Thomas’s use of force was justified. According to the Panel findings, “Detective
King . . . testified that he did not have all the information, in regard to this shooting that was
available at the time he completed his report.” Def.’s MSJ Ex. C, 5. King further claimed that
“there were a lot of facts that he had not had an opportunity to review or to include in his
report[,] and that the report was probably not complete to a percentage.” Id. Finally, King
acknowledged that it is MPD policy for off-duty officers to “proceed cautiously, and . . . that it is
prudent for off-duty MPD personnel to contact on-duty police officers from the jurisdiction that
the incident occurred in prior to taking police action.” Id. at 6. The Panel ultimately found
against Thomas on two charges: 1) “commission of any act which would constitute a crime,” and
2) use of deadly force without necessary reason and not “to defend against an imminent attack
posing the risk of serious bodily injury or death.” Id. The Panel recommended termination.
Thomas appealed to the Chief of Police, who adopted the Panel’s findings and terminated
C. Procedural Background
Having exhausted his administrative remedies at MPD, Thomas filed suit in this Court
against the District of Columbia on July 16, 2013. He amended his complaint on September 26,
2013 and asserted four counts: Count One alleged employment discrimination on the basis of
race under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and
the District of Columbia Human Rights Act (“DCHRA”), D.C. Code § 2-1402.11. See First
Amend. Compl. 1–2. Count Two asserted a hostile work environment, also under Title VII and
the DCHRA. Id.
Count Three sought recovery for constitutional violations under 42 U.S.C. §
1983. Id. And Count Four sought equitable relief, including an order for the District of
Columbia to institute an antidiscrimination policy and for MPD supervisors to undergo
antidiscrimination training. Id. at 13–14.
Thomas consented to the dismissal of Counts Two and Four on October 1, 2014. Thomas
subsequently filed a Second Amended Complaint on October 14, 2014. See Second Amend.
Compl. The District of Columbia then filed a motion to dismiss Thomas’s § 1983 claim, arguing
that a municipality cannot be liable under § 1983 absent “an official custom, practice, or policy
that caused the alleged constitutional violation.” See Def.’s Mot. Dismiss Second Amend.
Compl. 4–5. The Court granted this motion on December 15, 2014, and the case proceeded to
discovery. The Court now considers the District of Columbia’s motion for summary judgment
on the remaining discrimination claim.
The Court shall grant summary judgment if “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A
dispute is “genuine” only when a reasonable fact-finder could find for the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” only if it is
capable of affecting the outcome of litigation. Id. Non-material factual disputes are thus
insufficient to prevent the Court from granting summary judgment. Id.
In determining whether summary judgment is appropriate, the Court is obligated to
review the “[u]nderlying facts and inferences … in the light most favorable to the non-moving
party.” Id. The party moving for summary judgment “bears the initial responsibility of
informing the district court of the basis for its motion and identifying those portions of the record
that it believes demonstrate the absence of a genuine issue of material fact.” Steele v. Carter,
2016 WL 3620722, at *4 (D.D.C. June 29, 2016) (quoting Celotex Corp. v. Caltrett, 477 U.S.
317, 322–23 (1986)). Once the moving party has demonstrated that a material fact cannot be
disputed, the party opposing summary judgment must then “set forth specific facts showing that
there is a genuine issue for trial.” Anderson, 477 U.S. at 250.
The non-moving party may oppose summary judgment using “any of the kinds of
evidentiary materials listed in Rule 56(c).” Celotex Corp., 477 U.S. at 324. This evidence
includes materials found in the record, such as “depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . . , admissions interrogatory answers or
other materials.” Fed. R. Civ. P. 56(c)(1). To defeat a motion for summary judgment in a Title
VII action, the non-moving party’s evidence may show “the employer’s better treatment of
similarly situated employees outside the plaintiff’s protected group, its inconsistent or dishonest
explanations, its deviation from established procedures or criteria, [ ] the employer’s pattern of
poor treatment of other employees in the same protected group as the plaintiff, or other relevant
evidence that a jury could reasonably conclude evinces an illicit motive.” Wheeler v.
Georgetown Univ. Hosp., 812 F.3d 1109, 115 (D.C. Cir. 2016).
This evidence must allow “the factfinder … [to] believe the plaintiff’s explanation of
intentional discrimination.” Id. at 147 (emphasis in original). In other words, to survive
summary judgment in a Title VII action, a plaintiff “must show both that the reason [for
termination] was false, and that discrimination was the real reason.” Aka v. Washington Hosp.
Center, 156 F.3d 1284, 1290 n.4 (D.C. Cir. 1998) (emphasis in original). “The evidence offered
is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S.
at 255. “Mere unsupported allegations or denials,” alone, are insufficient to defeat summary
judgment. Celotex Corp., 477 U.S. at 324. Summary judgment, therefore, is appropriate when
the non-moving party fails to provide “evidence on which the jury could reasonably find for the
[non-movant].” Anderson, 477 U.S. at 252.
Title VII of the Civil Rights of 1964 makes it unlawful for an employer to “refuse to hire
or to discharge any individual, or otherwise to discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of employment, because of such individual’s
race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2. The District of Columbia
Human Rights Act uses almost precisely the same language. See D.C. Code § 2–1402.11. When
presented with a suit alleging violations of each law, courts generally evaluate the claims under
Title VII jurisprudence. See Carpenter v. Fed. Nat’l Mortg. Ass’n, 165 F.3d 69, 72 (D.C. Cir.
1999) (applying the same test for violations of the Human Rights Act as would apply to
violations of Title VII due to the “substantial similarity” between the two laws). The Court will
therefore evaluate Thomas’s claims under both statutes simultaneously.
A plaintiff can defeat a summary judgment motion with either direct evidence or
circumstantial evidence of unlawful discrimination. Dunaway v. Int’l Bd. Of Teamsters, 310
F.3d 758, 763 (D.C. Cir. 2002). The Court must first determine if the former exists, as direct
evidence, alone, “generally entitle[s] a plaintiff to a jury trial.” Vatel v. Alliance of Auto. Mfrs.,
627 F.3d 1245, 1247 (D.C. Cir. 2011). Direct evidence may include, for example, “a statement
that itself shows a racial or gender bias in the [adverse employment] decision.” Id.
does not cite to any direct evidence of a Title VII violation. His claim relies instead on
purportedly circumstantial evidence of discrimination: that MPD has not terminated white
officers who engaged in similar or more egregious conduct.
If a plaintiff relies on circumstantial evidence to support a Title VII claim, the Court
ordinarily turns to the three-part framework established in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802–05 (1973); Hall v. Giant Food, Inc., 175 F.3d 1074, 1077 (D.C. Cir. 1999).
Under this framework, the plaintiff must first establish a prima facie case of discrimination.
McDonnell Douglas, 411 U.S. at 802–05. If the plaintiff sets forth a prima facie case, the
defendant then has the burden “to articulate some legitimate, nondiscriminatory reason” for the
adverse employment decision. McDonnell Douglas, 411 U.S. at 802–05. If the employer does
so—as the District has here—“the district court must resolve one central question: Has the
employee produced sufficient evidence for a reasonable jury to find that the employer’s asserted
non-discriminatory reason was not the actual reason and that the employer intentionally
discriminated against the employee on the basis of race, color, religion, sex, or national origin?”
Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). The Court considers
this question “in light of the total circumstances of the case.” Hamilton v. Geithner, 666 F.3d
1344, 1351 (D.C. Cir. 2012). MPD has offered a facially non-discriminatory reason for
Thomas’s termination: that he used unjustified deadly force against Mr. Lemus and violated
MPD policies regarding the use of force and police action while off duty and outside the
jurisdiction. The Court therefore turns to Thomas’s evidence that the District of Columbia’s
reason was pretext for discrimination.
Thomas’s purported evidence is two-fold: First, he cites other non-black officers who he
claims received lesser discipline for similar offenses. See Pl.’s Opp’n Def.’s MSJ (“Pl.’s
Opp’n”) 4–5. Second, he claims that MPD erroneously found his use of force to be
unreasonable. Id. (asserting that the reasonableness of Thomas’s shooting is a disputed material
fact that entitles him to a jury trial). The Court begins with the former. To be similarly situated
under Title VII, the plaintiff must demonstrate that “all of the relevant aspects” of plaintiff’s
employment situation were “nearly identical” to those of the comparable employee. Neuren v.
Adduci, Mastriani, Meeks & Schill, 43 F.3d 1507, 1514 (D.C. Cir. 1995). Moreover, “the
allegedly similarly situated . . . employee [must have been] charged with offenses of comparable
seriousness.” Holbrook v. Reno, 196 F.3d 255, 261 (D.C. Cir. 1999) (internal quotations
Thomas identifies four non-black officers who he claims were treated more favorably
than he was. See Pl.’s Opp’n 4–5. The first is Curt Bonney, a white officer who, like Thomas,
used deadly force against a civilian. See id. at 4; Buruca v. District of Columbia, 902 F. Supp.
2d 75, 78 (D.D.C. 2012) (granting defendant’s summary judgment motion in the wrongful death
action that followed Officer Bonney’s use of deadly force). In the purportedly comparable
incident, Officer Bonney responded to a 911 call reporting gunshots near a gas station. See
Buruca, 902 F. Supp. 2d at 78. When Bonney arrived at the scene, he ordered the gunman to
drop his weapon. The gunman refused and pointed his gun at the officer. Bonney then shot him.
Id. at 78–79. The incident involving Bonney is not comparable to that here. Unlike Thomas,
Bonney was on duty and within the District of Columbia. Bonney shot an armed suspect under
circumstances that a court ruled justified the use of deadly force. On these facts, Officer Bonney
is clearly not a similarly situated employee for the purposes of a Title VII action.
Thomas’s second comparator is a white officer, “J.T.” 1 See Pl.’s Opp’n 4–5. MPD
conducted an internal investigation of J.T. following allegations that he sexually assaulted a
cooperating witness in a drug investigation. According to an MPD internal investigation report,
J.T. categorically denied engaging in any type of sexual contact with the cooperating witness,
and investigators ultimately found a lack of evidence to support the witness’s allegations. The
MPD investigation thus concluded with a recommendation that the case be closed. Prosecutors,
moreover, declined to bring charges against J.T., citing the cooperating witness’s unwillingness
to fully cooperate with the investigation and the lack of an independent corroborating witness.
Id. at 24. Investigators did find that J.T. violated MPD general orders by using his personal
The Court will use the initials of the latter three officers because the information
concerning their infractions is found in their confidential personnel files. The parties filed these
confidential personnel files with the Court under seal. Information concerning the incident
involving Officer Bonney is publically available in the wrongful death lawsuit that the victim’s
family brought against the District of Columbia. See Buruca v. District of Columbia, 902 F.2d
75 (D.D.C. 2012).
vehicle to carry out his official duties without authorization. Id. at 25. On these facts, the Court
finds that J.T. is not a similarly-situated employee. The most important distinction is that J.T.,
unlike Thomas, was not found to have committed a serious offense. And the offense under
investigation, while serious, did not involve the use of deadly force. Accordingly, MPD’s
handling of J.T.’s case is not at all probative of its treatment of Thomas.
The third officer to whom Thomas seeks to draw a comparison is “M.R.,” a Hispanic
male. According to MPD records, M.R. entered the home of a male acquaintance who was in the
midst of a divorce. See Pl.’s Opp’n Ex. 17. Drunk and belligerent, M.R. physically pushed
either the acquaintance or his wife to the floor.2 Regardless, prosecutors declined to bring
charges against M.R. And while MPD initially disciplined M.R. by placing him on “Non-contact
status,” it subsequently found that “the investigation has not revealed facts which support a
requirement that [M.R.] should continue in a Non-contact status.” Id. The Court finds that M.R.
is not similarly situated to Thomas. The two cases are different because the potential offenses
that M.R. committed—burglary and battery—are much less serious than Thomas’s use of deadly
force against Mr. Lemus. M.R. got drunk and pushed someone to the ground. Thomas shot an
unarmed citizen twice. Since M.R. was not “charged with [an] offense[ ] of comparable
seriousness,” his treatment by MPD is not evidence of discrimination against Thomas.
Holbrook, 196 F.3d at 261.
Finally, Thomas points to a Hispanic officer, “F.L.,” who purportedly was similarly
situated and received less discipline. See Pl.’s Opp’n 5. In his Opposition to the District of
Columbia’s Motion for Summary Judgment, Thomas cites to an Exhibit 16 to support this claim.
The initial incident report states that M.R. committed the battery against the husband,
whereas a subsequent memorandum to the MPD’s Internal Affairs Bureau states that the wife
was the victim. See Pl.’s Opp’n Ex. 17.
Thomas, however, has filed no such exhibit with the Court. And “to defeat a motion for
summary judgment, the non-moving party must offer more than mere unsupported allegations or
denials.” Celotex, 477 U.S. at 324. But even if the Court were to accept Thomas’s unsupported
assertions about F.L. as true, they do not constitute evidence of discrimination. According to
Plaintiff’s co-worker, a Hispanic, F.L. was off duty and out of his
jurisdiction in Pennsylvania, when he became disruptive and was
asked to leave an establishment. He re-approached the
establishment with his weapon in hand and refused to drop the
weapon when ordered to do so by Detectives of the Pennsylvania
Police Department. F.L. was eventually taken to the ground and
placed under arrest. The MPD determined that the Charges against
F.L. should be sustained, and the Department was advised of the
date by which discipline could be timely brought.
Pl.’s Opp’n 5. Thomas does not say what level of discipline F.L. received. Id. Nevertheless,
F.L.’s purportedly disruptive behavior and his refusal to drop a weapon are not as serious as
Thomas’s use of deadly force against an unarmed civilian. As a result, the Court finds that F.L.
was not “charged with [an] offense of comparable seriousness.” Holbrook, 196 F.3d at 261.
Any discrepancy in MPD’s treatment of Thomas and F.L. is therefore not evidence of
discrimination against Thomas.3
Thomas has also filed with the Court a selection of MPD disciplinary records that
document a broad range of infractions from 2009 to 2013. See Pl.’s Opp’n Exs. 26–32 These
records list the offense committed, the race of the officer involved, and the punishment handed
down. Without reference to any single infraction listed among the exhibits, Thomas claims the
exhibits show that “White [o]fficers who have been involved in conduct the same or similar or
more egregious than Mr. Thomas have not been terminated because they are White.” Pl.’s
Opp’n 4 (citing Pl.’s Opp’n Exs. 26–32). The records provided, however, support no such
conclusion. Among the deficiencies is that none of the infractions listed in the selected records
is as serious as the use of deadly force against a civilian. See Pl.’s Opp’n Exs. 26–32.
Moving from comparator officers, Thomas also claims that MPD’s rationale for his
termination is pretextual because his shooting of Lemus was justified. See Pl.’s Opp’n 16–17
(arguing that the rationale MPD relied on in its decision to terminate Thomas “is unsupported by
the evidence”); id. at 4-6 (including the details of the shooting among a list of “material facts to
which there exists genuine issues in dispute”). To be sure, the underlying facts of the shooting
remain disputed. But these disputed facts are not material to this lawsuit. Even if the Court were
to find that Thomas’s use of force was justified, “it may not second-guess an employer’s
personnel decision absent demonstrably discriminatory motive.” Fischbach v. D.C. Dep’t of
Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996) (internal quotations omitted). Title VII, after all,
“does not authorize a Federal court to become a super-personnel department that reexamines an
entity’s business decisions.” Downing v. Tapella, 729 F. Supp. 2d 88, 93–94 (D.C. Cir. 2010)
(internal quotations omitted). Thomas will prevail here only if he proves MPD fired him
because of his race.
Accordingly, the Court need not wade too far into the merits of whether Thomas’s use of
deadly force against an unarmed civilian was justifiable under MPD policy. It suffices to note
that the MPD considered the evidence and found against Thomas at several levels of review.
Even Detective King, whose favorable initial report Thomas identifies as evidence of pretext,
effectively retracted his report and testified against Thomas. See Def.’s MSJ Ex. C, 3–5.
Nothing in the record suggests that the decision to terminate Thomas was tainted by
discrimination. The Court therefore finds that the factual disputes concerning the initial shooting
are not material, and do not entitle Thomas to a jury trial.
For the foregoing reasons, the Court will grant Defendant’s Motion for Summary
Judgment, and enter Judgment in favor of the District of Columbia on Thomas’s remaining
claims under Title VII and the District of Columbia Human Rights Act. An Order accompanies
this Memorandum Opinion.
September 16, 2016
CHRISTOPHER R. COOPER
United States District Judge
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