United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 6, 2010 Decided June 21, 2011
No. 08-5111
DAVID M. BOWIE,
APPELLANT
v.
CHARLES C. MADDOX, INSPECTOR GENERAL, IN HIS OFFICIAL
AND INDIVIDUAL CAPACITIES, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:03-cv-00948)
James C. Cox, appointed by the court, argued the cause for
appellant. With him on the briefs were David W. DeBruin and
Jessie K. Liu, appointed by the court.
David M. Bowie, pro se, filed briefs for appellant.
David A. Hyden, Assistant Attorney General, Office of the
Attorney General for the District of Columbia, argued the cause
for appellees. With him on the brief were Peter J. Nickles,
2
Attorney General, Todd S. Kim, Solicitor General, and Donna
M. Murasky, Deputy Solicitor General.
R. Craig Lawrence, Assistant U.S. Attorney, entered an
appearance.
Before: SENTELLE, Chief Judge, BROWN, Circuit Judge, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge BROWN.
BROWN, Circuit Judge: Appellant David M. Bowie, a
former official of the District of Columbia Office of the
Inspector General (“OIG”), was fired after five years on the job,
purportedly for poor performance. Bowie brought this suit
against the District and officers of the OIG (“Defendants”) after
he was fired, alleging that they conspired to deter his testimony
in a subordinate’s employment discrimination trial and
ultimately fired him in retaliation for his refusal to help sabotage
his fellow employee. The district court entered judgment in
favor of Defendants on Bowie’s § 1985(2) conspiracy claim, a
related claim under § 1986 for failure to prevent the conspiracy,
and his First Amendment retaliation claim. After a trial on
Bowie’s Title VII retaliation claim, the jury found in favor of
Defendants. We vacate the dismissal of Bowie’s §§ 1985(2) and
1986 conspiracy claims, because the district court erroneously
required an invidious, class-based motive for the alleged
conspiracy and because the district court concluded, without
support, that Title VII was the exclusive remedy for this type of
retaliation. McCord v. Bailey, 636 F.2d 606, 614 (D.C. Cir.
1980). We affirm in all other respects.
3
I
Bowie was the Assistant Inspector General of the
Investigations Division at the OIG from November 1997 until
his termination in August 2002. Defendants say Bowie was fired
for performance problems. But Bowie says his termination was
the culmination of a retaliatory conspiracy by his superiors to
punish him for supporting Emanuel Johnson, a subordinate
whom the OIG fired over Bowie’s dissent.
Bowie’s professional relationship with Johnson dated back
to the years they overlapped at the Federal Bureau of
Investigation (“FBI”). (Bowie had worked for the FBI for
twenty-four years before he joined the OIG.) Back in 1993,
Bowie and Johnson had initiated a class action against the FBI,
alleging a discriminatory failure to promote black agents. Bowie
claims that in 1999, after Johnson followed him from the FBI to
OIG’s Investigations Division, Bowie’s boss, Inspector General
Charles C. Maddox, told Bowie that FBI Assistant Director
Jimmy C. Carter had threatened not to “provide any assistance
or cooperation with the [OIG] in investigative matters” if
Johnson was involved. Bowie interpreted this as “a direct
demand that Maddox fire Johnson” or “suffer a severed
FBI/[OIG] relationship.” Bowie suspects Carter’s ultimatum
was motivated by his anger at Johnson for filing several
discrimination complaints—some against Carter himself—with
the FBI’s Equal Employment Office.
Maddox met with OIG supervisors, including Bowie, on
February 7, 2000, to discuss Johnson’s future with the office.
Bowie says he warned Maddox that firing Johnson would
violate office policy and federal law, and he recommended
putting Johnson on a sixty-day Performance Improvement Plan
(“PIP”) instead. After the meeting, Maddox ordered Bowie to
4
give Johnson notice that he could either resign or be fired.
Bowie did so two days later on February 9, 2000, and Johnson
was terminated effective March 1, 2000. See Johnson v.
Maddox, 270 F. Supp. 2d 38, 43 (D.D.C. 2003), aff’d 117 F.
App’x 769 (D.C. Cir. 2004).
Johnson filed a discrimination charge against OIG with the
Equal Employment Opportunity Commission (“EEOC”) on
March 28, 2000. Deputy Attorney General Gail Davis, who was
representing the District before the EEOC, drafted an affidavit
for Bowie to sign that detailed Johnson’s “failure to perform his
duties in a satisfactory manner” in three investigations. OIG
General Counsel Karen Branson sent the draft to Bowie with
instructions to sign it that day. Bowie refused, citing
“misstatements of fact” and “language that would convey
impressions that [he] would not agree with.” Branson then asked
Bowie to submit an affidavit in his own words by the following
day. Bowie’s substantially revised affidavit still noted problems
with one investigative report Johnson had drafted and related his
“sense that Mr. Johnson clearly did not yet understand the
mechanics of how things are done in [the OIG] compared to his
former employer.” But Bowie also opined that the harshest
criticism leveled at Johnson was inconsonant with the views of
Johnson’s immediate supervisors, who had praised him as a
“model investigator.” Bowie’s affidavit repeated his view that
putting Johnson on a PIP would have been a better course of
action than firing him. Bowie submitted his affidavit to Branson,
but Davis decided not to file it with the OIG’s position statement
before the EEOC because “it included too much information that
was not relevant to the issue at hand,” and which Bowie was
unwilling to eliminate.
Bowie claims Defendants started setting him up for
termination after he expressed support for Johnson. Bowie had
5
received top-notch performance reviews for his first three years
at the OIG, but his standing in the office took a turn for the
worse in 2000. Bowie says that on February 11, 2000, days after
he objected to the plan to fire Johnson, Bowie’s superiors
accused him of “not stepping up to the plate.” In February
2001—about three months after Johnson filed a Title VII
complaint in district court—Maddox removed Bowie from a
high-profile investigation. In December 2001, Maddox elevated
a former subordinate, Jerome Campane, to a newly created
position, Deputy Inspector General for Investigations, one step
above Bowie. Around this same time, Bowie’s performance
rating began to fall. In October 2001, his rating dropped from
4.9 to 4.1 on a five-point scale; that is, from “significantly
exceeds expectations” to “exceeds expectations.”
In May 2002—within a month after Bowie’s name appeared
on Johnson’s witness list—a mid-year performance evaluation
criticized Bowie’s management, the quality and quantity of his
office’s Reports of Investigation (“ROIs”), and his
overprotectiveness toward his subordinates. Defendants point
out that a prior report, issued in December 1999 by the
Inspections and Evaluations Division, had forecast some of
these problems. According to the 2002 mid-year evaluation,
Bowie had failed to remedy faults identified in an individual
performance plan created for him sometime in 2001. Soon after
the mid-year performance evaluation issued, Maddox ordered
the Inspections and Evaluations Division to reassess the
Investigations Division because it had failed to begin internal
preparations for a statutorily mandated peer review. Al Wright,
the Assistant Inspector General for the Inspections and
Evaluations Division had recommended the reinspection,
suggesting it would provide “a roadmap of options . . . to make
changes and lay the groundwork for [Campane’s] new
management team.” Wright issued the reinspection report on
6
July 26, 2002, and it repeated the mid-year evaluation’s criticism
of Bowie. Bowie was fired less than three weeks later, on
August 16, 2002.
Bowie filed suit in April 2003 against the District and OIG
officials in their official and individual capacities. 1 Relevant to
this appeal, Bowie alleged a conspiracy to deter him from
testifying in support of Johnson under 42 U.S.C. §§ 1985(2) and
1986 (failure to prevent the conspiracy), infringement of his
First Amendment freedom of speech under 42 U.S.C. § 1983,
and retaliation under Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq. and the D.C. Human Rights Act, D.C.
Code § 2-1401.01 et seq.
The district court dismissed Bowie’s conspiracy and First
Amendment claims, and his retaliation claims proceeded to trial.
The jury returned a verdict for Defendants, and the district court
denied Bowie’s motions for judgment as a matter of law and for
a new trial. Bowie timely appealed.
II
A
Bowie alleges Defendants “knowingly and willfully
conspire[d]” to “obstruct[] [his] testimony before a Federal
Court” in violation of 42 U.S.C. § 1985(2) and failed to prevent
that conspiracy in violation of § 1986. The first clause of
§ 1985(2) permits an action for damages when
1
Bowie’s complaint also named Attorney General John Ashcroft,
former FBI Assistant Director Jimmy C. Carter, and Mayor Anthony
Williams. Bowie voluntarily dismissed the federal defendants, Dist. Ct.
Docket No. 22, and the district court granted an unopposed motion to
dismiss the mayor. Dist. Ct. Docket No. 32.
7
two or more persons in any State or Territory[2]
conspire to deter, by force, intimidation, or
threat, any party or witness in any court of the
United States from attending such court, or from
testifying to any matter pending therein, freely,
fully, and truthfully, or to injure such party or
witness in his person or property on account of
his having so attended or testified.
42 U.S.C. § 1985(2). The next section of the Civil Rights Act
permits recovery against any “person who, having knowledge
that any of the wrongs conspired to be done, and mentioned in
[§ 1985], are about to be committed, and having power to
prevent or aid in preventing the commission of the same,
neglects or refuses so to do.” Id. § 1986. Recovery under § 1986
depends on the existence of a conspiracy under § 1985.
The district court dismissed Bowie’s conspiracy claims in a
one-page order with a cryptic reference to the previous day’s
court proceedings: “Upon review of plaintiff’s Amended
Complaint and after discussion with counsel for the parties at
the pretrial conference, it is obvious to the Court that there are
no facts alleged that could sustain plaintiff’s claim under 42
U.S.C. § 1985.” Dist. Ct. Docket No. 113. At the pretrial
conference mentioned in the order, the district court had
articulated two possible grounds for dismissal, but each is based
on a misunderstanding of the nature of Bowie’s conspiracy
claims.
2
The phrase “State or Territory” in this provision embraces the District
of Columbia. See Georgetown Univ. Hosp. v. Sullivan, 934 F.2d 1280,
1285 (D.C. Cir. 1991) (citing McCord v. Bailey, 636 F.2d 606, 617
n.15 (D.C. Cir. 1980)).
8
1
Our review of the transcript from the pretrial conference
suggests the district court’s dismissal of Bowie’s § 1985 claim
relied first and foremost on his failure to produce evidence of
class-based animus. Addressing that claim, the district court
said, “[i]t can’t be a race question if Wright is also black.” Tr. of
Pretrial Conference (May 10, 2007), at 9, reprinted at Joint
Appendix (“J.A.”) 481; see id. at 10 (“If Wright is also black,
then I don’t get what the 1985 claim could be.”). But Bowie’s
claim of a conspiracy to deter his testimony does not require
evidence of race discrimination. Lack of invidious motive is an
inadequate basis for dismissing a claim under the first clause of
§ 1985(2), because that clause “contain[s] no language requiring
that the conspirators act with intent to deprive their victims of
the equal protection of the laws.” Kush v. Rutledge, 460 U.S.
719, 725 (1983). 3 Therefore, to the extent the district court
based its dismissal of Bowie’s § 1985(2) claim on the fact that
3
The Supreme Court explained that
the sponsors of the 1871 bill added the ‘equal
protection’ language [in the second clause of
§ 1985(2) and the first two clauses of § 1985(3)] in
response to objections that the ‘enormous sweep of
the original language’ vastly extended federal
authority and displaced state control over private
conduct. That legislative background does not apply
to the portions of the statute [like the first clause of
§ 1985(2)] that prohibit interference with federal
officers, federal courts, or federal elections.
Kush, 460 U.S. at 726. As in Kush, “the statutory language that
provides the textual basis for the ‘class-based, invidiously
discriminatory animus’ requirement simply does not appear in the
portion of the statute that applies to this case.” Id.
9
defendants were of the same race and gender as Bowie, the court
erred.
2
At the same pretrial conference, the district court also
suggested Bowie’s § 1985 claim was foreclosed because it
“would be covered by Title [VII].” J.A. 482. The court reasoned
that as an at-will employee, Bowie had no right to continued
employment, and therefore “the only right he has here would be
to not be retaliated against[,] which is covered by Title [VII].”
Id. 483. This rationale is based on another misconception about
Bowie’s § 1985 claim—namely, that it is coterminous with
Bowie’s Title VII claim of retaliatory termination for supporting
Johnson. Cf. Ethnic Emps. of the Library of Cong. v. Boorstin,
751 F.2d 1405, 1414–15 (D.C. Cir. 1985) (“[T]he district court
properly dismissed those constitutional claims that simply
restated claims of racial, ethnic or other discrimination
cognizable under Title VII, or claims of retaliation for the
invocation of Title VII rights.”). But Bowie’s § 1985(2) claim
specifically alleged a conspiracy to deter him from testifying in
support of Johnson in federal court. The corresponding right is
created by § 1985(2), not Title VII. See Irizarry v. Quiros, 722
F.2d 869, 872 (1st Cir. 1983); cf. Great Am. Fed. Sav. & Loan
Ass’n v. Novotny, 442 U.S. 366, 378 (1979) (“[D]eprivation of a
right created by Title VII cannot be the basis for a cause of
action under § 1985(3).”).
Defendants have not attempted to explain how Title VII
preempts such a claim, and our research suggests it does not. See
Serzysko v. Chase Manhattan Bank, 461 F.2d 699, 703 (2d Cir.
1972) (“Our investigation of . . . Title VII . . . has failed to reveal
any provision that might conceivably cover appellant’s . . .
allegation of infringement of his right of access to the courts
10
[which] is suggestive of an action based upon 42 U.S.C. §
1985(2) . . . .”). The dismissal of Bowie’s conspiracy claim
under clause one of § 1985(2) cannot be sustained on the district
court’s unsupported belief that “Title [VII] is [the] exclusive
remedy for that type of retaliation.” J.A. 482.
3
Although the district court’s statements at the pretrial
conference were limited to the two theories we have just
rejected, Defendants rely on a third theory to defend the
dismissal of Bowie’s conspiracy claim. Defendants argue they
could not have engaged in a conspiracy because they are all
employees of the same District agency, and a single corporate
entity cannot conspire with itself. The intracorporate conspiracy
doctrine, as it is called, originated in the antitrust context, see
Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752,
769 (1984), and its application to civil rights conspiracies is an
open question in this circuit. 4
At least seven circuits have held the intracorporate
conspiracy doctrine applies to civil rights conspiracies. See
Grider v. City of Auburn, 618 F.3d 1240, 1261–62 (11th Cir.
2010); Hartline v. Gallo, 546 F.3d 95, 99 n.3 (2d Cir. 2008);
Amadasu v. Christ Hosp., 514 F.3d 504, 507 (6th Cir. 2008);
Benningfield v. City of Houston, 157 F.3d 369, 378 (5th Cir.
1998), cert. denied, 526 U.S. 1065 (1999); Hartman v. Bd. of
4
Amicus curiae, arguing on behalf of Bowie, points to one case in
which we affirmed a damages award under § 1985(3), even though one
of the relevant conspiracies involved only FBI agents. See Hobson v.
Wilson, 737 F.2d 1, 13 (D.C. Cir. 1984). But we did not mention the
intracorporate conspiracy doctrine in that case. We have yet to pick
sides in the circuit split regarding the doctrine’s applicability to civil
rights cases in general and the first clause of § 1985(2) in particular.
11
Trustees of Cmty. Coll. Dist. No. 508, 4 F.3d 465, 469–71 (7th
Cir. 1993); Richmond v. Bd. of Regents of Univ. of Minnesota,
957 F.2d 595, 598 (8th Cir. 1992); Buschi v. Kirven, 775 F.2d
1240, 1252–53 (4th Cir. 1985). But see Dussouy v. Gulf Coast
Inv. Corp., 660 F.2d 594, 603 (5th Cir. 1981) (questioning the
doctrine in dicta). Of those, four courts have applied the doctrine
to bar the specific cause of action at issue here—a claim brought
under the first clause of § 1985(2) for conspiracy to deter
attendance at or testimony in a federal court. Meyers v. Starke,
420 F.3d 738, 742 (8th Cir. 2005); Wright v. Ill. Dep’t of
Children & Family Servs., 40 F.3d 1492, 1507–09 (7th Cir.
1994); Doherty v. Am. Motors Corp., 728 F.2d 334, 339–40 (6th
Cir. 1984); Herrmann v. Moore, 576 F.2d 453, 459 (2d Cir.
1978). But another court has explicitly excepted such claims
from the doctrine’s reach. McAndrew v. Lockheed Martin Corp.,
206 F.3d 1031, 1035–41 (11th Cir. 2000). And some of the
same courts that apply the intracorporate conspiracy doctrine in
the civil rights context have recognized other exceptions that
Bowie argues would allow his § 1985(2) claim to proceed. In
some jurisdictions, for example, the doctrine does not apply
where the civil rights conspiracy consists of “a series of
discriminatory acts,” Volk v. Coler, 845 F.2d 1422, 1435 (7th
Cir. 1988); cf. Baker v. Stuart Broad. Co., 505 F.2d 181, 183
(8th Cir. 1974) (applying the doctrine where “the challenged
conduct is essentially a single act of discrimination by a single
business entity”); Dombrowski v. Dowling, 459 F.2d 190, 196
(7th Cir. 1972) (same), or where the corporate agents’ actions
were either unauthorized or motivated by “an independent
personal stake in achieving the corporation’s illegal objective,”
Buschi, 775 F.2d at 1252; see Benningfield, 157 F.3d at 378
(noting a “possible exception . . . where corporate employees act
for their own personal purposes”).
12
In contrast with the majority rule, two circuits have held the
intracorporate conspiracy doctrine does not preclude liability for
a civil rights conspiracy by the individual officers and
employees of a single corporate entity. See Brever v. Rickwell
Int’l Corp., 40 F.3d 1119, 1127 (10th Cir. 1994); Novotny v.
Great Am. Fed. Sav. & Loan Ass’n, 584 F.2d 1235, 1256–59 &
n.121 (3d Cir. 1978) (en banc), vacated on other grounds, 442
U.S. 366 (1979); cf. Robison v. Canterbury Vill., Inc., 848 F.2d
424, 430–31 (3d Cir. 1988) (applying the doctrine to affirm the
dismissal of a § 1985(3) claim against a corporation and its
president “in his corporate capacity”). A third court declined to
apply the doctrine on the narrower ground that the conspiracy
“went beyond ‘a single act’ of discrimination,” but expressed
skepticism about the doctrine’s place in any civil rights case.
Stathos v. Bowden, 728 F.2d 15, 20–21 (1st Cir. 1984) (Breyer,
J.). But see Rice v. President & Fellows of Harvard Coll., 663
F.2d 336, 338 (1st Cir. 1981) (affirming the dismissal of a claim
against “the President and Fellows of Harvard College, which is
a single corporate entity and, therefore, unable to conspire with
itself in violation of § 1985(3)”).
Finally, the Ninth Circuit has managed to avoid deciding
whether the intracorporate conspiracy doctrine applies in the
civil rights context, see Mustafa v. Clark County Sch. Dist., 157
F.3d 1169, 1181 (9th Cir. 1998), but has declined to extend the
doctrine to criminal cases, see United States v. Hughes Aircraft
Co., 20 F.3d 974, 979 (9th Cir. 1994).
The parties and amicus curiae tacitly agree the
intracorporate conspiracy doctrine was the controlling rationale
for the district court’s decision, but the record does not support
that assumption. The court’s order itself is devoid of
explanation; although Defendants consistently argued there
could be no conspiracy under § 1985 where all of them worked
13
for the same agency, the pretrial conference transcript gives us
no reason to believe the district court was persuaded by that
argument. The court’s only reference to the intracorporate
conspiracy doctrine occurred in a prior order dismissing Bowie’s
§ 1985 claim on that ground. Dist. Ct. Docket No. 57, at 10
(“Since all of the people in the alleged conspiracy were acting
within the scope of their employment for the District of
Columbia, they could not have legally conspired because of the
intracorporate conspiracy doctrine.”). But the district court
subsequently reversed itself, reinstating Bowie’s § 1985 claim
against District officials only and thereby implicitly rejecting the
intracorporate conspiracy doctrine. Dist. Ct. Docket No. 82, at 8.
Defendants have pointed to nothing, other than their own
arguments before the district court, to indicate the court
dismissed Bowie’s conspiracy claim on that ground a second
time.
Mindful of “the general rule . . . that a federal appellate
court does not consider an issue not passed upon below,”
Singleton v. Wulff, 428 U.S. 106, 120 (1976), we decline to
decide the validity of Defendants’ intracorporate conspiracy
defense in the absence of a relevant decision by the district
court. We may, of course, affirm the district court’s dismissal
“for any reason properly raised by the parties.” Aktieselskabet
AF 21 Nov. 2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir.
2008). But Defendants’ invocation of the intracorporate
conspiracy doctrine raises several questions of first impression
in this circuit that would benefit from the trial court’s
consideration—whether the doctrine applies at all in the civil
rights context; whether in particular it makes sense to attribute
the acts of an agency’s employees to the agency itself when what
is alleged is a conspiracy to deter testimony in federal court; and
whether any other relevant exception applies. In appropriate
circumstances, we may consider a novel legal question in the
14
first instance without the benefit of the district court’s initial
view. See Empagran S.A. v. F. Hoffman-Laroche, Ltd., 388 F.3d
337, 345 (D.C. Cir. 2004); Defenders of Wildlife, Inc. v.
Endangered Species Scientific Auth., 659 F.2d 168, 179 (D.C.
Cir. 1981). But “this court’s ‘normal rule’ is to avoid such
consideration.” Liberty Prop. Trust v. Republic Props. Corp.,
577 F.3d 335, 341 (D.C. Cir. 2009) (quoting District of
Columbia v. Air Fla., Inc., 750 F.2d 1077, 1085 (D.C. Cir.
1984)). Because the district court suggested no viable rationale
for its order, we vacate the dismissal of Bowie’s conspiracy
claims under §§ 1985(2) and 1986.
4
Bowie sought to thwart the intracorporate conspiracy
defense by adding federal officers and lawyers from the
District’s Office of the Attorney General to his roster of OIG
defendants, but the district court rebuffed that effort as futile.
We affirm the district court’s denial of Bowie’s motion to
reinstate Jimmy Carter and to add Gail Davis and Teresa Quon
as defendants. According to Bowie’s proposed amendments to
his complaint, the adverse employment actions designed to
control or silence Bowie’s testimony pertain only to the OIG
Defendants, not Carter. Dist. Ct. Docket No. 45-2, at 22–45.
Carter’s alleged participation in, and knowledge about, the
purported conspiracy ended with Johnson’s termination, i.e.,
before any conspiracy relating to Bowie’s testimony is alleged to
have started. Id. at 14–22. “[T]here are two substantive
limitations on a defendant’s responsibility for acts undertaken by
co-conspirators: Those acts must be ‘in furtherance of’ the same
conspiracy to which the defendant has agreed, and they must be
reasonably foreseeable to the defendant.” United States v.
Childress, 58 F.3d 693, 722 (D.C. Cir. 1995); see also United
States v. Saro, 24 F.3d 283, 288 (D.C. Cir. 1994) (“The extent
15
of a defendant’s vicarious liability under conspiracy law is
always determined by the scope of his agreement with his co-
conspirators. Mere foreseeability is not enough.”). Because
Bowie does not allege Carter was privy to any conspiracy to
deter Bowie’s testimony, Carter could not have been held liable
under § 1985(2).
As for Davis and Quon, Bowie alleges, at best, that they
interfered with his attempt to offer testimony before the EEOC.
Dist. Ct. Docket No. 45-2, at 28, 50–51. But § 1985(2) creates a
cause of action against one who deters the plaintiff from
attending or testifying in “any court of the United States.” 42
U.S.C. § 1985(2). We have never interpreted that phrase to
include an administrative agency like the EEOC, and other
courts have explicitly foreclosed such a broad reading of the
statute. See Seeley v. Bhd. of Painters, Decorators and Paper
Hangers of Am., 308 F.2d 52, 58 (5th Cir. 1962); Graves v.
United States, 961 F. Supp. 314, 319 (D.D.C. 1997); see also
McAndrew, 206 F.3d at 1039–40 & n.10 (contrasting § 1985(2)
with the broader scope of 18 U.S.C. § 1512(b), which
criminalizes interference with testimony “in any official
proceeding,” including one before a federal agency).
Finally, Bowie does not state a claim under § 1986 as to
Carter, Davis, or Quon, as he alleges neither that they had
knowledge of the alleged conspiratorial acts against Bowie, nor
that they would have had the power to prevent them. See 42
U.S.C. § 1986. Because adding these defendants to Bowie’s
complaint would have been futile, the district court did not
abuse its discretion in denying his motion for leave to amend.
See Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ., 366 F.3d
930, 945 (D.C. Cir. 2004). 5
5
We also affirm the denial of leave to amend as to Quon on the
alternative ground that Bowie waived this argument in the district
16
B
Bowie appeals the district court’s grant of summary
judgment for Defendants on the First Amendment retaliation
claim he brought under 42 U.S.C. § 1983. Bowie claims he was
terminated in retaliation for refusing to sign the affidavit drafted
for him in response to Johnson’s EEOC charge and for drafting
his own affidavit which implicitly criticized Maddox’s decision
to terminate Johnson.
It is true that individuals do not “relinquish the
First Amendment rights they would otherwise
enjoy as citizens” when they accept employment
with the government. . . . However, “the State
has interests as an employer in regulating the
speech of its employees that differ significantly
from those it possesses in connection with
regulation of the speech of the citizenry in
general.”
Navab-Safavi v. Glassman, 2011 U.S. App. LEXIS 3868, 8–9
(D.C. Cir. Mar. 1, 2011) (quoting Pickering v. Bd. of Educ., 391
U.S. 563, 568 (1968)). To balance these competing interests in
First Amendment retaliation claims by government employees,
we apply a four-factor test:
First, the public employee must have spoken as a
citizen on a matter of public concern. Second,
the court must consider whether the
governmental interest in promoting the
efficiency of the public services it performs
through its employees outweighs the employee’s
court. See Dist. Ct. Docket No. 64-1, at 10–11 (“Plaintiff agrees that
Teresa Quon should be dismissed as a defendant to this litigation as
her role differs substantially from that of Gail Davis.”).
17
interest, as a citizen, in commenting upon
matters of public concern. Third, the employee
must show that [his] speech was a substantial or
motivating factor in prompting the retaliatory or
punitive act. Finally, the employee must refute
the government employer’s showing, if made,
that it would have reached the same decision in
the absence of the protected speech.
Wilburn v. Robinson, 480 F.3d 1140, 1149 (D.C. Cir. 2007)
(quotation marks, citations, and alterations omitted).
The district court dismissed Bowie’s First Amendment
claim on the first of these prongs, holding that “[s]peech
regarding ‘individual personnel disputes and grievances’ is not
relevant to the public’s evaluation of governmental agencies’
performance.” Bowie v. Gonzales, 433 F. Supp. 2d 24, 33
(D.D.C. 2006) (quoting Murray v. Gardner, 741 F.2d 434, 438
(D.C. Cir. 1984)). Bowie points out that we have since
“reject[ed] the proposition that a personnel matter per se cannot
be a matter of public concern.” LeFande v. District of Columbia,
613 F.3d 1155, 1161 (D.C. Cir. 2010). He argues that his speech
was on a matter of public concern because he composed his
affidavit for the purpose of submitting it to the EEOC. See
Johnston v. Harris County Flood Control Dist., 869 F.2d 1565,
1578 (5th Cir. 1989) (“When an employee testifies before an
official government adjudicatory or fact-finding body[,] he
speaks in a context that is inherently of public concern.”).
We need not decide whether an affidavit prepared for an
EEOC proceeding is necessarily speech on a matter of public
concern, because Bowie’s claim fails for another reason.
“[W]hen public employees make statements pursuant to their
official duties, the employees are not speaking as citizens for
First Amendment purposes, and the Constitution does not
18
insulate their communications from employer discipline.”
Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). Even if the draft
affidavit and Bowie’s revision of it were “on a matter of public
concern,” Wilburn, 480 F.3d at 1149, he was not speaking “as a
citizen,” id., when he refused to sign the former or when he
composed the latter. In both instances, Bowie was acting
“pursuant to [his] official duties” as an employee of OIG.
Garcetti, 547 U.S. at 421.
Bowie’s efforts to produce an affidavit were undertaken at
the direction of his employer and in his capacity as Assistant
Inspector General for Investigations and Johnson’s superior. The
first version of the affidavit was drafted for OIG’s convenience
by a Deputy Attorney General as counsel for OIG, and it was
given to Bowie for his signature by the OIG’s general counsel.
Bowie revised the affidavit on a timetable approved by the
general counsel, and then submitted it to her for submission with
the OIG’s position statement in the EEOC. Bowie does not
allege Defendants stymied any personal effort to submit his
affidavit to the EEOC or to Johnson directly. Indeed, Bowie
made no such effort. His affidavit, like the draft he refused to
sign, identified him in the first paragraph and signature block as
“Assistant Inspector General for Investigations.” All the speech
underlying Bowie’s First Amendment claim occurred in his
official capacity. Government employers, like their private-
sector counterparts, necessarily exert control over their
employees’ speech in the course of operating an agency. “[T]he
First Amendment does not prohibit managerial discipline based
on an employee’s expressions made pursuant to official
responsibilities.” Wilburn, 480 F.3d at 1150 (quoting Garcetti,
547 U.S. at 424). We therefore affirm the district court’s grant of
summary judgment on Bowie’s First Amendment claim.
19
C
Finally, Bowie attacks the jury verdict on his Title VII and
D.C. Human Rights Act claims by appealing the district court’s
evidentiary decisions. “[W]e review a trial court’s evidentiary
rulings for abuse of discretion and even if we find error, we will
not reverse an otherwise valid judgment unless appellant
demonstrates that such error affected [his] substantial rights.”
United States ex rel. Miller v. Bill Harbert Int’l Constr., Inc.,
608 F.3d 871, 911 (D.C. Cir. 2010) (alterations and quotation
marks omitted) (quoting Whitbeck v. Vital Signs, Inc., 159 F.3d
1369, 1372 (D.C. Cir. 1998)). We find no abuse of discretion in
the evidentiary rulings Bowie challenges.
1
The district court did not abuse its discretion in excluding
testimony from Alfred Miller, a Deputy Assistant Inspector
General in the Investigations Division. Miller was allowed to
testify about the number of ROIs the Investigations Division
produced during Bowie’s tenure. But when Defendants objected
to Miller’s testimony about ROI production volume after
Bowie’s termination, the district court sustained the objection on
relevance grounds. Bowie argues the post-termination statistics
were relevant because they would have revealed as pretext one
of the stated reasons for Bowie’s termination—his purportedly
inadequate ROI production.
The relevance of post-termination evidence in a Title VII
case depends on the nature of the evidence, the purpose for
which it is offered, and the context in which it arises. In some
circumstances, post-termination data is relevant to the
employer’s state of mind before termination. See Greene v.
Safeway Stores, Inc., 98 F.3d 554, 561 (10th Cir. 1996)
20
(permitting plaintiff to introduce evidence that other employees
in the protected age class were replaced, because “evidence
concerning the make-up of the employment force and events
which occurred after plaintiff’s termination were entirely
relevant to the question of whether or not age was one of the
determinative reasons for plaintiff’s termination”), cited in Hall
v. Giant Food, Inc., 175 F.3d 1074, 1080 (D.C. Cir. 1999). In
other circumstances, post-termination data is irrelevant to pre-
termination events and motives. See Warren v. Prejean, 301
F.3d 893, 905 (8th Cir. 2002) (affirming the exclusion of
testimony about information that was not previously available to
the employer and was therefore “irrelevant as to the information
known to [the employer] at the time of the termination”). This is
an inquiry best suited to the district court, and our review is
appropriately deferential.
Although, sitting as a trial court, we may have allowed
Miller to testify, we cannot say the district court’s decision to
exclude testimony about ROI production following Bowie’s
termination was an abuse of discretion. Defendants could not
possibly have known for certain how ROI production would
change after Bowie left the OIG. At the time they made the
decision to fire Bowie, the only available ROI data was the data
from his own tenure. Under Bowie, the Investigations Division
issued 22 reports in 1998, 26 in 1999, 87 in 2000, 46 in 2001,
and 25 in 2002. Bowie was allowed to, and did, try to explain
the reasons for the sharp decline between 2000 and 2002.
Evidence that even fewer ROIs were issued by the succeeding
Assistant Inspector General, without more, would not have been
probative of Defendants’ state of mind when they fired Bowie.
The district court did not abuse its discretion in deciding the
specific post-termination evidence in this case was irrelevant to
the purpose for which it was admitted—proving pretext. See,
e.g., Green v. City of St. Louis, 507 F.3d 662, 669 (8th Cir.
21
2007) (“The district court did not purport to state a rule that
post-termination statements are never relevant to state of mind at
the time of termination; instead, the court assessed the evidence
as presented to it and concluded that the statements here were
only relevant to later events. There was no abuse of
discretion.”).
2
At Defendants’ request, and over Bowie’s objection, the
district court informed the jury that Johnson had lost his Title
VII case. See Johnson, 270 F. Supp. 2d 38. Under Rule 403 of
the Federal Rules of Evidence, the district court may exclude
relevant evidence “if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury.” Fed. R. Evid. 403. “We review
the district court’s Rule 403 determinations with great
deference, reversing only for grave abuse of discretion.”
Stevenson v. D.C. Metro. Police Dep’t, 248 F.3d 1187, 1191
(D.C. Cir. 2001).
Amicus argues that the outcome of Johnson’s case was
irrelevant to whether Defendants retaliated against Bowie for
supporting Johnson and that its admission risked confusing the
issues and prejudicing Bowie because the jury might have
equated the merits of his Title VII case with Johnson’s failed
claim. 6 Defendants respond that taking judicial notice of the
6
We have no qualms about addressing an argument raised by court-
appointed amicus curiae and not by the pro se party on whose behalf
he was appointed to present arguments. It is precisely because an
untrained pro se party may be unable to identify and articulate the
potentially meritorious arguments in his case that we sometimes
exercise our discretion to appoint amici. See D.C. Cir. Rule 29 (“The
rules stated below apply with respect to the brief for an amicus curiae
22
judgment in Johnson’s case “decrease[d] the chance that the jury
would improperly speculate on the outcome and the merits of
Johnson’s (and Bowie’s) complaints,” Appellees’ Br. 21, and
that Bowie could have offered a jury instruction to limit any
prejudicial side effects. We acknowledge the risks inherent in
informing the jury about the outcome of the very case Bowie
claims he was fired for supporting. Cf. Johnson v. Colt Indus.
Operating Corp., 797 F.2d 1530, 1534 (10th Cir. 1986) (“[T]he
admission of a judicial opinion as substantive evidence presents
obvious dangers. The most significant possible problem posed
by the admission of a judicial opinion is that the jury might be
confused as to the proper weight to give such evidence. It is
possible that a jury might be confused into believing that the
opinion’s findings are somehow binding in the case at bar.”).
But we cannot conclude any prejudice Bowie may have suffered
was the fault of the district court. The court invited Bowie to
submit a limiting instruction, and Bowie failed to do so. Under
these circumstances, we conclude the district court did not abuse
its discretion. See United States v. Edwards, 388 F.3d 896, 902–
03 (D.C. Cir. 2004).
3
In discovery, Bowie requested all Investigative Reports in
Defendants’ possession, including drafts that Defendants
contemplated using “to show ‘poor work performance’ by
Plaintiff.” Bowie moved to compel, complaining Defendants
had disclosed cover sheets without the corresponding “reports,
not appointed by the court. A brief for an amicus curiae appointed by
the court is governed by the provisions of Circuit Rule 28 [pertaining
to briefs for appellants, inter alia].”); cf. Edison Elec. Inst. v. OSHA,
849 F.2d 611, 625 (D.C. Cir. 1988) (citing the predecessor to Rule 29
in declining to address an issue raised exclusively by a non-court-
appointed amicus).
23
drafts, [and] tracking sheet[s] to show where the report was at a
given time.” The court denied the motion to compel in relevant
part, pointing out that the relevant disclosure request had asked
for only those reports and drafts that Defendants contemplated
using—it had not mentioned tracking documents. “We review
district court rulings on discovery matters solely for abuse of
discretion,” reversing only if the party challenging the decision
can show it was “clearly unreasonable, arbitrary, or fanciful.”
Charter Oil Co. v. Am. Emp’rs’ Ins. Co., 69 F.3d 1160, 1171
(D.C. Cir. 1995). We find no such abuse of discretion in the
district court’s partial denial of Bowie’s motion to compel. On
appeal, Bowie points to a letter he wrote to Defendants’ counsel
in which he complained of Defendants’ failure to produce
“routing slips” pertinent to a different disclosure request. We
assume, for the sake of argument, that “routing slip” and
“tracking document” are synonyms. But Bowie’s motion to
compel, which lists eight other disclosure requests by number
and describes them in detail, does not mention that one.
Finally, Bowie points to no specific document that
Defendants used against him in court yet failed to disclose in
advance. Since the relevant disclosure request specified only
documents that Defendants contemplated using to prove his
poor work performance, Bowie’s argument that Defendants
failed to supplement their disclosure is without merit. See Fed.
R. Civ. P. 26(e).
III
For the foregoing reasons, we vacate the district court’s
order dismissing Bowie’s conspiracy claims under 42 U.S.C.
24
§§ 1985(2) and 1986 and remand for further proceedings
consistent with this opinion. We affirm in all other respects. 7
So ordered.
7
Bowie asks us to reinstate his wrongful termination claim under 42
U.S.C. §§ 1981 and 1983 and D.C. law, and his D.C. Whistleblower
Protection Act claim, but neither his brief nor the brief submitted on
his behalf by court-appointed amicus curiae attempts a legal argument
in support of those claims. We need not address claims that are barely
mentioned in a party’s brief. See United States ex rel. Miller v. Bill
Harbert Int’l Constr., Inc., 608 F.3d 871, 879 (D.C. Cir. 2010) (“A
litigant does not properly raise an issue by addressing it in a cursory
fashion with only bare-bones arguments.” (quoting Cement Kiln
Recycling Coal. v. EPA, 255 F.3d 855, 869 (D.C. Cir. 2001))).