Payne v. District of Columbia , 4 F. Supp. 3d 80 ( 2013 )


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  •                   UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    ______________________________
    )
    ERIC W. PAYNE,                )
    )
    Plaintiff,          )
    )
    v.                  )    Civil Action No. 10-679 (RWR)
    )
    DISTRICT OF COLUMBIA, et al., )
    )
    Defendants.         )
    ______________________________)
    MEMORANDUM OPINION AND ORDER
    Plaintiff Eric Payne brings suit against defendants District
    of Columbia (“D.C.”) and Dr. Natwar Gandhi, D.C.’s Chief
    Financial Officer (“CFO”), alleging that the defendants violated
    the D.C. Whistleblower Protection Act (“DC-WPA”), 
    D.C. Code § 1
    -
    615.51 et seq., by retaliating against him for making protected
    disclosures, and that the defendants violated the United States
    Constitution by defaming him and depriving him of his liberty
    interest in following his chosen profession.1    At the close of
    discovery, the defendants moved for summary judgment.    Because
    Payne did not show that the defendants’ legitimate, non-
    retaliatory reason for terminating him is pretextual, and the
    undisputed facts establish that Payne has no constitutional
    1
    Payne also asserts a claim for wrongful termination in
    violation of D.C. common law which he now agrees is “subsumed” by
    his DC-WPA claim. See Pl.’s Opp’n to Defs.’ Mot. for Summ. J. at
    13. Thus, judgment for the defendants will be entered on Payne’s
    wrongful termination claim.
    -2-
    defamation claim, the defendants’ motion for summary judgment
    will be granted as to Payne’s DC-WPA claim regarding his
    termination and his constitutional defamation claim.      The
    defendants’ motion will be denied as to Payne’s DC-WPA claim
    regarding other acts of retaliation given factual disputes
    concerning their causation.2
    BACKGROUND
    In July or August of 2004, Payne was hired as the Assistant
    General Counsel for procurement in the Office of the CFO
    (“OCFO”).   See Payne v. District of Columbia (Payne II), 
    859 F. Supp. 2d 125
    , 127 (D.D.C. 2012).    In May 2006, Payne was promoted
    to Director of Contracts.    Payne v. District of Columbia (Payne
    I), 
    773 F. Supp. 2d 89
    , 92 (D.D.C. 2011).    “[I]n that capacity,
    [Payne] initiated the process of awarding to one of two bidders a
    contract to be the service provider for the D.C. lottery.”        Payne
    II, 859 F. Supp. 2d at 127.    Payne alleged that after a “fair,
    reasonable, and objective competition,” he selected W2I for the
    contract.   Id.   “However, the proposed lottery contract was
    contingent upon the D.C. Council’s review and approval.”        Id.
    According to Payne, two D.C. Councilmembers “cajoled the
    [O]CFO into withdrawing W2I’s contract.”    Id. at 128.    Despite
    pressure from the D.C. Council and Gandhi, Payne refused to
    2
    Payne also filed an untimely motion for summary judgment
    on his DC-WPA claim that fails to show entitlement to judgment as
    a matter of law. That motion will be denied.
    -3-
    modify the proposed contract and warned “the Councilmembers that
    forcibly removing and replacing a joint venturer after completing
    the source selection process would be illegal.”      Payne II, 859 F.
    Supp. 2d at 128 (alterations and internal quotation marks
    omitted).    From April 2008 to July 2008, Payne complained several
    times to his supervisor Paul Lundquist, Lundquist’s supervisor
    Angell Jacobs, and Gandhi, and filed a complaint with the Office
    of Integrity and Oversight (“OIO”) within the OCFO about the
    irregularities with the lottery contract and his concerns with
    other general contracting practices at the OCFO.     Defs.’ Mot. for
    Summ. J. (“Defs.’ Mot.”), Defs.’ Stmt. of Undisputed Material
    Facts in Supp. of Mot. for Summ. J. (“Defs.’ Stmt.”) ¶¶ 15-26.
    Payne also met with the D.C. Auditor in November 2008 to discuss
    these concerns.   Id. ¶ 27.
    During the same time that Payne was voicing his concerns
    about the lottery contract and OCFO’s other contract and business
    practices, Payne alleges that his duties at the OCFO were being
    curtailed.   On May 15, 2008, the OCFO’s General Counsel filed a
    complaint against Payne with the OIO.    Id. ¶ 28.   The same day,
    Lundquist told Payne “to find another job by September 2008 or he
    would be let go.”   Id. ¶ 29.   On July 1, 2008, Payne was told
    that he “would be removed from his supervisory role at the OCFO’s
    Office of Contracts” and in August 2008, Payne’s change in status
    -4-
    was announced officially.   Id. ¶¶ 30-31.   In October 2008, Payne
    “was given an even more limited role” at the OCFO.    Id. ¶ 32.
    On January 9, 2009, Payne was terminated from the OCFO.
    Payne alleges that after his termination, “the OCFO made several
    defamatory statements about him to the public through major area
    newspapers, which impugned his reputation and marketability in
    the work place.”   Payne I, 
    773 F. Supp. 2d at 94
     (alterations,
    internal quotation marks, and citations omitted).
    The Washington Post article at issue included a statement
    from Mr. Payne that he and other D.C. officials were
    pressured to reopen the lottery contract for bids, as
    well as a statement in response from the CFO’s office
    that “no member of the City Council or their staffs nor
    anyone from the executive branch has made any attempt to
    influence the contract bidding process in any way.”
    
    Id.
     (alterations omitted) (quoting Tim Craig & Nikita Stewart,
    Rule Changes May Help LTE Keep Contract, Wash. Post, Apr. 20,
    2009).   Payne alleges that the “latter statement was false and
    effectively stated that Mr. Payne lied about facts.”    
    Id.
    (alterations and internal quotation marks omitted).
    After Payne was terminated from the OCFO, he worked
    temporarily at “the District of Columbia Housing Authority
    [(“DCHA”)] as legal counsel, advising the procurement director.”
    Defs.’ Stmt. ¶ 4 (internal quotation marks omitted); Pl.’s Stmt.
    of Genuine Issues of Mat. Facts in Dispute ¶ 3(d).    Payne also
    started a company, Public Procurement Solutions, where he
    “performed work for the District of Columbia Office of
    -5-
    Contracting and Procurement,” “the Housing Authority of the City
    of San Buenaventura, California,” and “a Virginia federal
    contracting firm called Interactive Technologies Group.”      Defs.’
    Stmt. ¶¶ 5-8.    Payne   earned approximately $50,000 from his work
    with Public Procurement Solutions.      Id. ¶ 9.
    Payne filed a five-count amended complaint against the
    defendants.    Count One alleges that the defendants violated the
    Fifth Amendment by depriving Payne of a liberty interest without
    due process.    Counts Two, Three, and Four charge that the
    defendants retaliated against Payne.       Count Five alleges that the
    defendants intentionally inflicted emotional distress on Payne.3
    The defendants move for summary judgment on Payne’s DC-WPA
    claim arguing that the majority of the allegedly retaliatory
    actions are barred by the statute of limitations and that Payne
    cannot show any causal connection between his allegedly protected
    disclosures and his termination from the OCFO.      The defendants
    further allege that Payne cannot make out a constitutional
    defamation claim.
    DISCUSSION
    Summary judgment may be granted when “the movant shows that
    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.
    3
    Counts Two and Five were dismissed previously.      See Payne
    I, 
    773 F. Supp. 2d at 99, 102
    .
    -6-
    P. 56(a).    A dispute is “genuine” “where the ‘evidence is such
    that a reasonable jury could return a verdict for the non-moving
    party.’”    Dozier-Nix v. District of Columbia, 
    851 F. Supp. 2d 163
    , 166 (D.D.C. 2012) (quoting Anderson v. Liberty Lobby, Inc.,
    
    477 U.S. 242
    , 248 (1986)).     “To survive a motion for summary
    judgment, the nonmoving party must provide evidence showing that
    there is a triable issue as to an element essential to that
    party’s claim.”     Banks v. Vilsack, 
    932 F. Supp. 2d 185
    , 189
    (D.D.C. 2013) (internal quotation marks omitted); see also Moore
    v. Hartman, 
    571 F.3d 62
    , 66 (D.C. Cir. 2009).     “It is well
    settled that conclusory allegations unsupported by factual data
    will not create a triable issue of fact.”     Exxon Corp. v. FTC,
    
    663 F.2d 120
    , 126-27 (D.C. Cir. 1980) (internal quotation marks
    omitted).
    I.   DC-WPA CLAIM
    To bring a civil action under the DC-WPA, the plaintiff must
    timely file his action.     See 
    D.C. Code § 1-615.54
    .   To establish
    a prima facie case of retaliation in violation of the DC-WPA, a
    plaintiff must show (1) “that [he] made a protected disclosure,”
    (2) “that a supervisor retaliated or took or threatened to take a
    prohibited personnel action against [him],” and (3) “that [his]
    protected disclosure was a contributing factor to the retaliation
    or prohibited personnel action.”     Wilburn v. District of
    Columbia, 
    957 A.2d 921
    , 924 (D.C. 2008).     “[A]fter a plaintiff
    -7-
    makes a prima facie case that his ‘protected disclosure’ was a
    ‘contributing factor’ in his dismissal, the burden shifts to the
    defendant to show by clear and convincing evidence that the
    [adverse employment action] would have occurred for ‘legitimate,
    independent reasons’ even if he had not engaged in activities
    protected under the Act.”    Crawford v. District of Columbia, 
    891 A.2d 216
    , 219 (D.C. 2006).   “If the defendant can articulate such
    a reason for the action, plaintiff then bears the burden of
    proving that the explanation for the action is a pretext.”
    Coleman v. District of Columbia, 
    893 F. Supp. 2d 84
    , 101 (D.D.C.
    2012) (citing Crawford, 
    891 A.2d at 218
    ).   The defendants move
    for summary judgment arguing that most of Payne’s claims are
    time-barred, that Payne cannot show a causal connection between
    his protected disclosures and his termination, and that Payne
    cannot show that the defendants’ proffered legitimate, non-
    retaliatory reason for terminating him is pretext.4
    4
    Payne also filed a motion arguing that he is entitled to
    judgment as a matter of law that his 2008 demotion was
    retaliatory. Discovery closed in this case on July 31, 2012.
    See Order at 2, ECF No. 95. “Unless a different time is set by
    local rule or the court orders otherwise, a party may file a
    motion for summary judgment at any time until 30 days after the
    close of all discovery.” Fed. R. Civ. P. 56(b). The Local Civil
    Rules do not set a different time for filing motions for summary
    judgment and the court did not order Payne to file his motion at
    a different time. See generally LCvR 7(l) (“A dispositive motion
    in a civil action shall be filed sufficiently in advance of the
    pretrial conference that it may be fully briefed and ruled on
    before the conference.”). Thus, Payne’s motion for summary
    judgment was due on August 31, 2012. The defendants moved for an
    extension of time to file their dispositive motion. That motion
    -8-
    was granted by minute order on September 7, 2012 and the
    defendants were ordered to file their motion for summary judgment
    by October 15, 2012. Payne did not move for an extension of time
    to file his motion for summary judgment. Nevertheless, Payne
    filed his motion for partial summary judgment on October 15,
    2012. Accordingly, Payne’s motion is untimely.
    Even if Payne’s motion were filed timely, it would be denied
    because Payne has not shown that he is entitled to judgment as a
    matter of law that the defendants violated the DC-WPA by demoting
    Payne in July 2008 because, among other things, there are genuine
    disputes of material fact as to whether Payne’s protected
    disclosures were a contributing factor to his demotion.
    A plaintiff can establish causation by showing that the
    employer knew about the employee’s protected conduct and that the
    adverse employment action occurred shortly thereafter. Clayton
    v. District of Columbia, 
    931 F. Supp. 2d 192
    , 202 (D.D.C. 2013).
    Payne alleges that he made protected disclosures in April 2008
    and May 2008. He further alleges that his supervisors at the
    OCFO knew about his disclosures before they demoted him in July
    2008. Pl.’s Mot. for Partial Summ. J. (“Pl.’s Mot.”), Mem. of P.
    & A. in Supp. of Pl.’s Mot. for Partial Summ. J. at 14-16; see
    Pl.’s Mot., Ex. D (Paul Lundquist Dep. (“Lundquist Dep.”) at
    181:15-17, 19-20) (testifying that he recalled Payne “mentioning
    that he had [a concern about an OCFO employee] and wanted OIO to
    look into it”); Pl.’s Mot., Ex. B (Eric W. Payne Aff. ¶ 11)
    (stating that after June 12, 2008 Bob Andary, the Director of the
    OIO at the OCFO, “disclosed to [Payne] that [Andary] had reported
    [Payne’s] April 2008 investigation request to Gandhi”).
    The defendants counter that there are genuine disputes of
    material fact regarding “whether, how, and how much his
    supervisors knew about [Payne’s] disclosures.” Defs.’ Mem. of P.
    & A. in Opp’n to Pl.’s Mot. for Partial Summ. J. (“Defs.’ Opp’n”)
    at 11. For example, the defendants provide evidence that
    Lundquist does not recall whether he knew about the OIO’s
    investigation before Payne was demoted. See Lundquist Dep. at
    181:9-20. Also, in his deposition, Andary testified that he had
    no memory of telling Gandhi that the OIO had initiated an
    investigation based on Payne’s disclosure. Defs.’ Opp’n, Ex. V
    (Robert Andary Dep. at 152:11-154:2).
    Although Payne provided evidence to support his assertion
    that his supervisors at the OCFO knew about his protected
    disclosures, the defendants have put forward sufficient evidence
    for a reasonable jury to find that Payne’s supervisors at the
    OCFO did not know about his disclosures. The genuine dispute of
    material fact as to whether Payne’s supervisors knew about his
    disclosures precludes a judgment as a matter of law that Payne’s
    -9-
    A.   Statute of limitations
    The defendants argue that the allegedly retaliatory conduct
    that occurred before January 8, 2009 is time-barred under the law
    in effect at the time that the conduct occurred.5   See Defs.’
    Mot., Mem. of P. & A. in Supp. of Defs.’ Mot. for Summ. J.
    (“Defs.’ Mem.”) at 14-15.   Payne counters that the 2010
    amendments to the DC-WPA statute of limitations are retroactive
    and that under the current statute, his claim based on conduct
    protected disclosures were a factor contributing to his demotion.
    Furthermore, Payne bases his causation argument on the
    temporal proximity between his employer’s learning of his
    protected disclosures and his demotion. However, “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). Here, the defendants provide
    evidence that Payne was demoted “after multiple and continued
    complaints from both his subordinates and others who interacted
    with his office” “because he was not effective as a manager.”
    Defs.’ Opp’n at 12. At her deposition, Jacobs testified that in
    June 2008, she often received “complaints about his management
    style, the way he interacted with [staff], that he was he was a
    bully, and that he was retaliatory in his management style.”
    
    Id.,
     Ex. P (Angell Jacobs Dep. at 51:11-52:10). Payne does not
    attempt to dispute the defendants’ proffered reason for demoting
    him. Thus, he has not shown that there is an undisputed causal
    connection between his protected disclosures and his demotion.
    5
    Although Payne did not bring this action until April 30,
    2010, the parties entered into a tolling agreement under which
    the parties agreed “that all applicable statute of limitations as
    to any and all claims that Payne may have against the District of
    Columbia, in connection with, related to, or arising from his
    employment and termination thereof, shall be tolled and suspended
    during the period of time [the] Agreement [was] in effect.”
    Defs.’ Mot., Ex. H (Am. Agreement - #2, To Toll Statute of
    Limitations ¶ 1). The tolling agreement was in effect from
    January 8, 2010 to May 1, 2010. Defs.’ Stmt. ¶¶ 11, 13.
    -10-
    that occurred before January 8, 2009 was filed timely.    See Pl.’s
    Opp’n to Defs.’ Mot. for Summ. J. (“Pl.’s Opp’n”) at 19-20.
    Before 2010, to bring a civil action under the DC-WPA, a
    complainant was required to file his action “within one year
    after a violation occur[red] or within one year after the
    employee first [became] aware of the violation.”    
    D.C. Code § 1
    -
    615.54(a) (2009).   In 2010, an amendment to the statute of
    limitations went into effect.   Whistleblower Protection Amendment
    Act of 2009, 2010 D.C. Legis. Serv. 18–117 (West).    Under the
    current law, a complainant must file his action “within 3 years
    after a violation occurs or within one year after the employee
    first becomes aware of the violation, whichever occurs first.”
    
    D.C. Code § 1-615.54
    (a)(2).   The 2010 amendments to the statute
    of limitations were made retroactive.    See Sharma v. District of
    Columbia, 
    791 F. Supp. 2d 207
    , 212-13 (D.D.C. 2011) (discussing
    D.C. case law that “establish[es] that the 2010 Amendments to the
    statute of limitations . . . are retroactive” because the
    amendment was procedural in nature).    Thus, the statute of
    limitations as amended in 2010 applies to Payne’s DC-WPA claim.6
    6
    The defendants assert that in Payne I, Judge Friedman held
    that the “pre-amendment version” of the DC-WPA applies to Payne’s
    claim. Reply to Opp’n to Mot. for Summ. J. at 7. However, in
    Payne I, Judge Friedman stated only that the amendment
    authorizing an action against individual supervisors was not
    given retroactive application. See Payne, 
    773 F. Supp. 2d at 100
    . He did not discuss whether the procedural amendments to the
    statute of limitations were retroactive.
    -11-
    In the defendants’ motion for summary judgment, they assume
    that the pre-2010 version of the DC-WPA applies to Payne’s claim
    and state that under the applicable law, Payne was required to
    file his claim “within one year after a violation occurs.”    See
    Defs.’ Mem. at 14-15.   The 2010 amendments allow a complainant to
    file his claim within the earlier of three years after a
    violation occurs or one year after the employee becomes aware of
    the violation.   Thus, under the current law, Payne’s claim may
    have been filed timely.   In their reply brief, the defendants
    argue for the first time that the time began to run when Payne
    first became aware of the violation.    See Reply to Opp’n to Mot.
    for Summ. J. (“Defs.’ Reply”) at 8-9.   Arguments raised for the
    first time in reply briefs are not considered.   See Am. Wildlands
    v. Kempthorne, 
    530 F.3d 991
    , 1001 (D.C. Cir. 2008); Rollins
    Envtl. Servs. (NJ) Inc. v. EPA, 
    937 F.2d 649
    , 652 n.2 (D.C. Cir.
    1991).   But the defendants further contend that Payne “has not
    argued that he was unaware of his claims at the time each alleged
    discriminatory retaliation occurred.”   Defs.’ Reply at 8
    (internal quotation marks omitted).    However, under D.C. law, the
    defendants bear the burden of demonstrating that Payne’s claims
    are time-barred.   See Oparaugo v. Watts, 
    884 A.2d 63
    , 73 (D.C.
    2005).   Because the defendants have not shown that the one-year
    statute of limitations applies to Payne’s claim, the defendants’
    -12-
    motion for summary judgment on the allegedly retaliatory conduct
    that occurred before January 8, 2009 will be denied.
    B.    Causal connection between protected activity and
    termination
    To establish a prima facie case of retaliation in violation
    of the DC-WPA, a public employee must show that a protected
    disclosure was a contributing factor in the prohibited personnel
    action.   However, to prevail on such a claim at trial, “‘a jury
    must find a direct causal link’” between a protected disclosure
    and the retaliatory action.    See Johnson v. District of Columbia,
    
    935 A.2d 1113
    , 1119 (D.C. 2007).    “Essentially, then, liability
    under the Whistleblower Protection Act is measured under a ‘but
    for’ analysis.”   
    Id.
       The defendants argue that Payne cannot
    demonstrate that his protected disclosures were even a
    contributing factor in, let alone a but for cause of, his
    termination.   See Defs.’ Mem. at 15-16.   Payne counters that
    “temporal proximity” between his protected disclosures and
    termination and a record that “shows a consistent ongoing animus
    against him following his earliest protected disclosures”
    demonstrate causation.    Pl.’s Opp’n at 20.
    “A plaintiff may show causation through direct evidence or
    circumstantial evidence, such as by showing . . . a close
    temporal proximity between the employer’s knowledge and the
    adverse actions.”   Clayton v. District of Columbia, 
    931 F. Supp. 2d 192
    , 202 (D.D.C. 2013) (citing Rattigan v. Gonzales, 503 F.
    -13-
    Supp. 2d 56, 77 (D.D.C. 2007); Johnson, 
    935 A.2d at
    1120–21).
    “The cases that accept mere temporal proximity between an
    employer’s knowledge of protected activity and an adverse
    employment action as sufficient evidence of causality to
    establish a prima facie case uniformly hold that the temporal
    proximity must be very close[.]”    Clark Cnty. Sch. Dist. v.
    Breeden, 
    532 U.S. 268
    , 273 (2001) (internal quotation marks
    omitted).   “[T]he cases cited by the Breeden Court seem to
    suggest that if a plaintiff relies upon temporal proximity alone
    to establish causation, the time span must be under three
    months.”    Buggs v. Powell, 
    293 F. Supp. 2d 135
    , 148 (D.D.C.
    2003).   The parties agree that Payne engaged in protected conduct
    through November 2008 when Payne met with the D.C. Auditor.
    Defs.’ Stmt. ¶ 27.7   While the defendants concede that the OCFO
    7
    In his opposition, Payne suggests that he engaged in
    protected conduct through December 2008 when the Office of the
    Inspector General completed its “extensive investigation of
    Payne’s charges.” Pl.’s Opp’n at 22-23. Payne cites Exhibit 17
    to his opposition to support his argument but unhelpfully, does
    not provide specific citations to where in the 68-page exhibit
    (much of which contains illegible handwritten notes) the nature
    and date of Payne’s allegedly protected conduct is discussed.
    Although a “district court is under no obligation to sift through
    the record” to decide a motion for summary judgment, Jackson v.
    Finnegan, Henderson, Farabow, Garrett & Dunner, 
    101 F.3d 145
    , 154
    (D.C. Cir. 1996), a modest review of Exhibit 17 reveals several
    references to a June 20, 2008 conversation between Payne and
    “Case Agent” Johnnie Bright. See, e.g., Pl.’s Opp’n, Ex. 17 at
    24. However, the Exhibit does not appear to support Payne’s
    assertion that his protected conduct lasted through December
    2008. Thus, Payne has not demonstrated that he engaged in
    protected conduct through December 2008.
    -14-
    knew about Payne’s protected disclosures through July 2008, see
    Suppl. Mem. in Supp. of Summ. J. Addressing Pl.’s Ex. 17 at 3,
    the defendants contend that “even after all the discovery taken
    in this case, there is no evidence that anyone at the OCFO knew
    about [Payne’s] meeting [with the D.C. Auditor],” Defs.’ Mem. at
    19.   Citing Exhibit 17 to his opposition, Payne counters that the
    “Defendants were well aware of Plaintiff’s protected disclosures,
    prior to the May 15, 2008 action and prior to [Payne’s
    termination].”   Pl.’s Opp’n at 23.     However, Payne does not point
    to any place in the exhibit to support this assertion or to
    demonstrate that anyone at the OCFO knew about the November
    meeting.   Because Payne has not shown that the defendants knew
    about his protected conduct in November 2008, only Payne’s
    protected conduct through July 2008 will be considered.
    Payne was terminated in January 2009.    The passage of six
    months between Payne’s protected conduct and termination is,
    without more, insufficient to establish a causal connection.     See
    Buggs, 
    293 F. Supp. 2d at 148
    .    Accordingly, Payne cannot rely
    alone on the temporal proximity between his protected conduct and
    termination to establish causation.
    Although Payne cannot show causation through temporal
    proximity, “‘temporal proximity is but one method of proving
    retaliation.   Evidence of discriminatory or disparate treatment
    in the time period between the protected activity and the adverse
    -15-
    employment action can be sufficient to show a causal
    connection.’”    
    Id. at 149
     (alteration omitted) (quoting Che v.
    Mass. Bay Transp. Auth., 
    342 F.3d 31
    , 38 (1st Cir. 2003)).
    “[W]here there is a lack of temporal proximity, circumstantial
    evidence of a pattern of antagonism following the protected
    conduct can also give rise to the inference.’”    
    Id.
     (internal
    quotation marks omitted) (quoting Kachmar v. SunGard Data Sys.,
    Inc., 
    109 F.3d 173
    , 177 (3d Cir. 1997)).    For example, in Buggs,
    the plaintiff claimed that he was denied promotions in
    retaliation for engaging in protected conduct.    See id. at 147.
    There, the court found that a seven-month span between the
    plaintiff’s protected conduct and the plaintiff’s non-promotion
    was, by itself, insufficient to establish causation.    See id. at
    149.    Nonetheless, the court found that “the proffered evidence
    as a whole, when viewed in the light most favorable to the
    plaintiff, creates an inference of retaliatory discrimination
    with respect to the plaintiff’s non-[promotion], even though its
    proximity to the protected activity would not alone support such
    an inference.”    Id.   Specifically, the court found that the same
    decisionmaker was responsible for a number of allegedly
    retaliatory actions that occurred over a span of time.      Id. at
    149-50.
    Here, Payne argues that “his protected disclosures
    consistently and continuously resulted in Defendants’ repeated,
    -16-
    escalating acts of retaliation which . . . culminated in his
    termination on January 9, 2009.”   Pl.’s Opp’n at 24.   Payne
    alleges that as he continued to make protected disclosures, the
    OCFO’s actions turned from internal complaints to threats that
    Payne would be terminated, and from threats to formal action to
    change Payne’s status, reduce Payne’s duties, and ultimately
    terminate him.   Payne also alleges that the same OCFO employees
    were responsible for these adverse employment actions.    During
    this time, Payne also made numerous protected disclosures.      Given
    Payne’s protected disclosures from April 2008 through July 2008
    and evidence of the allegedly retaliatory actions, there is
    sufficient evidence from which a reasonable jury could find a
    causal connection between Payne’s protected disclosures and his
    termination from the OCFO.8
    C.   Legitimate, independent reason for Payne’s termination
    The defendants argue that Payne would have been terminated
    even if he had not engaged in protected conduct because “he
    missed work and did not complete assignments.”   Defs.’ Mem. at
    8
    The defendants argue that protected “disclosures made
    after an employer has contemplated taking an adverse action
    cannot support a [DC-]WPA claim.” Defs.’ Mem. at 17 (emphasis
    omitted). While a plaintiff relying solely on temporal proximity
    cannot establish causation where an employer had contemplated an
    adverse employment act before the employee engaged in protected
    activity, see Breeden, 
    532 U.S. at 272
    , the defendants have not
    shown that Payne cannot rely on retaliatory actions that occurred
    after the OCFO contemplated terminating Payne to prove causation
    by showing a pattern of antagonism.
    -17-
    20.   In support of this proffered reason, the defendants provide
    numerous e-mails that discuss Payne missing deadlines and not
    reporting to work as required.    See Defs.’ Mot., Exs. D-E.    The
    defendants also provide an e-mail from Lundquist to Payne asking
    Payne to explain discrepancies between the start time Payne
    listed on his timesheet and the first time Payne used his card
    key to enter his office on the given day.    See Defs.’ Mot, Ex. F.
    Payne argues that the defendants’ have not shown by clear
    and convincing evidence that Payne was terminated because he
    missed deadlines and did not report to work.    Pl.’s Opp’n at 30-
    31.   “Clear and convincing evidence is such that ‘will produce in
    the mind of the trier of fact a firm belief or conviction as to
    the facts sought to be established.’”    Brown v. The George
    Washington Univ., 
    802 A.2d 382
    , 386 n.6 (D.C. 2002) (quoting In
    re D.I.S., 
    494 A.2d 1316
    , 1326 (D.C. 1985)).    Thus, the standard
    “generally requires the trier of fact, in viewing each party’s
    pile of evidence, to reach a firm conviction of the truth on the
    evidence about which he or she is certain.”    United States v.
    Montague, 
    40 F.3d 1251
    , 1255 (D.C. Cir. 1994).    Here, Payne
    argues that the discrepancies between Payne’s timesheet and his
    card key access data do not establish conclusively that Payne
    falsified his time sheet.   See Pl.’s Opp’n at 30.   Payne also
    provides evidence that during this same time he was working on
    some assignments.   See Pl.’s Opp’n at 31, Ex. 15.   Payne’s
    -18-
    argument and evidence show that the defendants have not
    established conclusively their legitimate non-retaliatory reason
    for terminating Payne.    However, the clear and convincing
    evidence standard does not require such certainty.     See Hopkins
    v. Price Waterhouse, 
    737 F. Supp. 1202
    , 1204 n.3 (D.D.C. 1990)
    (“The clear and convincing standard . . . requires a degree of
    persuasion higher than mere preponderance of the evidence, but
    still somewhat less than clear, unequivocal and convincing or
    beyond a reasonable doubt.” (internal quotation marks omitted)
    (quoting Collins Sec. Corp. v. SEC, 
    562 F.2d 820
    , 824 (D.C. Cir.
    1977)).   By providing evidence that Payne’s supervisor and
    colleagues reported that Payne was missing deadlines and not
    reporting to work, the defendants have provided sufficient
    evidence to produce in the mind of a reasonable jury a firm
    conviction that Payne missed deadlines and did not report to work
    as required.
    Payne also argues that the defendants’ reason is pretextual.
    Specifically, Payne asserts that the defendants offered
    inconsistent testimony regarding who decided to terminate Payne.
    Pl.’s Opp’n at 27-30.    However, the evidence Payne cites does not
    support his assertion.    In its response to Payne’s
    interrogatories, D.C. stated that “Paul Lundquist, Angell Jacobs
    and LaSharn Moreland were involved in the decision to terminate
    plaintiff.”    Pl.’s Opp’n, Ex. 21 (Def. D.C.’s Answers to Pl.’s
    -19-
    Interrogs.) at 3.   Payne contends that Lundquist testified at his
    deposition that Gandhi was the only person involved in deciding
    to terminate Payne.   However, the allegedly supporting page in
    Lundquist’s deposition is omitted from the plaintiff’s exhibit
    and the submitted portions of Lundquist’s deposition do not
    support Payne’s contention.   See Pl.’s Opp’n, Ex. 8 (Lundquist
    Dep. 11/9/11 at 46:9-12) (testifying he did not recall whether he
    told Payne that his termination “represented, quote, unquote, the
    will of [Gandhi]”).
    Payne further argues that there is a “factual inconsistency”
    regarding whether Lundquist and Gandhi discussed Payne’s
    performance during regularly scheduled meetings.   During his
    deposition, Lundquist testified that he did not recall meeting
    with Gandhi to discuss Payne in November 2008, December 2008, or
    January 2008.   Pl.’s Opp’n, Ex. 9 (Lundquist Dep. 2/13/12 at
    167:5-14).   Payne argues that Lundquist’s testimony is at odds
    with D.C.’s statement in its response to its interrogatories.
    However, Payne did not cite any evidence to support this
    proposition.9
    9
    Payne also alleges that he has reason to believe that his
    December 29, 2008 performance review was “created after the fact
    to justify Defendant’s termination of Plaintiff.” Pl.’s Opp’n at
    26. This unsupported, conclusory assertion is insufficient to
    show pretext. Moreover, the defendants did not offer the
    performance evaluation as evidence of their legitimate, non-
    retalitory reason for terminating Payne. Although a
    “factfinder’s disbelief of the reasons put forward by the
    defendant (particularly if disbelief is accompanied by a
    -20-
    Because the defendants provided clear and convincing
    evidence of their legitimate reason for terminating Payne and
    Payne did not offer admissible evidence that the explanation is
    pretextual, summary judgment will be entered for the defendants
    on Payne’s DC-WPA claim that he was terminated in retaliation for
    making protected disclosures.
    II.   CONSTITUTIONAL DEFAMATION
    The defendants move for summary judgment on Payne’s
    constitutional defamation claim arguing that Payne cannot make
    out a claim because he has been employed in his chosen profession
    since his termination from the OCFO.       See Defs.’ Mem. at 10-12.
    “A claim for deprivation of a liberty interest without due
    process based on the defamatory statements of government
    officials in combination with a termination may proceed on one of
    two theories.”   Holman v. Williams, 
    436 F. Supp. 2d 68
    , 78
    (D.D.C. 2006).   A plaintiff may bring a “reputation-plus” claim
    or a “stigma or disability” claim.       See 
    id. at 78-79
    .   Here,
    Payne’s claim turns on “a continuing stigma or disability arising
    from official action.”   Payne I, 
    773 F. Supp. 2d at 95
     (internal
    quotation marks omitted).
    suspicion of mendacity) may, together with the elements of the
    prima facie case, suffice to show [retaliation],” St. Mary’s
    Honor Ctr. v. Hicks, 
    509 U.S. 502
    , 511 (1993), Payne has not
    demonstrated that there is evidence in the record that a jury
    could use to find that the defendants are lying about their
    proffered legitimate non-retaliatory reason for terminating
    Payne.
    -21-
    To prevail in a “stigma or disability” claim, the plaintiff
    must “demonstrate that [the] government ‘imposed on him a stigma
    or other disability that foreclosed his freedom to take advantage
    of other employment opportunities.’”   McCormick v. District of
    Columbia, 
    899 F. Supp. 2d 59
    , 65 (D.D.C. 2012) (quoting Bd. of
    Regents of State Colleges v. Roth, 
    408 U.S. 564
    , 573 (1972)).
    The Fifth Amendment guarantees the “right to follow a chosen
    trade or profession.”   Cafeteria & Rest. Workers Union, Local 473
    v. McElroy, 
    367 U.S. 886
    , 895-96 (1961).   Thus, a plaintiff’s
    liberty interest is implicated if an official government action
    precludes the plaintiff from pursuing his chosen career or
    profession.   See Kartseva v. Dep’t of State, 
    37 F.3d 1524
    ,
    1528-29 (D.C. Cir. 1994); see also Holman, 
    436 F. Supp. 2d at 80
    (explaining that the official action must be one that “has the
    effect of seriously affecting, if not destroying, a plaintiff’s
    ability to pursue his chosen profession, or substantially
    reducing the value of [his] human capital” (internal quotation
    marks omitted)).
    Here, Payne claims that the OCFO’s comments in the
    Washington Post about Payne’s termination “suggested that
    Plaintiff was dishonest, a liar and terminated for reasons
    related to performance.”   Am. Compl. ¶ 73.   Payne further alleges
    that the OCFO’s statements about “Plaintiff’s professional
    competence and reputation . . . placed a significant roadblock on
    -22-
    his ability to obtain permanent full time employment in his
    chosen field of contract procurement law” and “created a stigma
    that foreclosed Plaintiff’s freedom to take advantage of other
    employment opportunities, including pursuing employment in his
    chosen field as an attorney interested in government
    procurement.”   Id. ¶¶ 74-75.   The defendants contend that Payne’s
    temporary employment with the DCHA as “legal counsel, advising
    the procurement director” and Payne’s brief involvement with
    Public Procurement Solutions demonstrate that Payne has not been
    precluded from pursuing his chosen profession.    See Defs.’ Mem.
    at 11-12.   Payne does not dispute that his temporary position
    with the DCHA and work with Public Procurement Solutions were
    positions in his chosen profession.    Instead, Payne argues that
    despite his “limited, temporary employment,” a reasonable jury
    could still find that he has been foreclosed from his chosen
    profession.   See Pl.’s Opp’n at 16.
    A plaintiff’s employment in his chosen field, even if
    temporary, suffices to defeat his “stigma or disability”
    constitutional defamation claim.    In Alexis v. District of
    Columbia, 
    44 F. Supp. 2d 331
     (D.D.C. 1999), the plaintiffs
    claimed that the defendants violated their Fifth Amendment
    liberty interests by defaming them and the defendants moved for
    summary judgment on this claim.    “Four of the plaintiffs
    aver[red] that they ha[d] had no success obtaining employment
    -23-
    within their respective fields despite repeated attempts to do
    so.”    
    Id. at 341
     (emphasis added).    As to those plaintiffs, the
    court denied the defendants’ motion for summary judgment, in
    part, because the plaintiffs provided evidence that “they ha[d]
    been denied employment within their professions altogether.”     
    Id.
    Two other plaintiffs “acknowledge[d] that subsequent to their
    termination from District government employment, they ha[d] had
    opportunities, albeit temporary ones, to work within their
    professions.”    
    Id. at 342
    .   Thus, the court concluded that
    “[n]otwithstanding the fact that the positions each plaintiff
    secured were not permanent, and thus were understandably
    unsatisfactory to them,” these plaintiffs had failed to show that
    they were foreclosed from their chosen profession.     
    Id.
       Because
    “[n]o reasonable jury could find that they ha[d] been precluded
    from employment in their respective fields,” the court granted
    the defendant’s motion for summary judgment as to these
    plaintiffs.    
    Id.
    Thus, even though Payne’s firm, Public Procurement
    Solutions, ultimately failed and he was employed only temporarily
    with the DCHA, no reasonable jury could find that Payne has been
    precluded from employment as an attorney specializing in
    government procurement.    Accordingly, the defendants’ motion for
    -24-
    summary judgment on Payne’s constitutional defamation claim will
    be granted.10
    CONCLUSION AND ORDER
    The defendants did not show that Payne’s DC-WPA claim based
    on retaliatory action that occurred before January 8, 2009 is
    time-barred, but Payne did not rebut the defendants’ legitimate,
    non-retaliatory reason for terminating him from the OCFO.
    Payne’s untimely-filed cross-motion for summary judgment did not
    establish undisputed material facts about why he was demoted.
    Because Payne was temporarily employed in his chosen field after
    the defendants made their allegedly defamatory statements, he
    cannot show that he has been precluded from following his chosen
    profession.     Payne’s wrongful termination claim is subsumed by
    his DC-WPA claim.     Accordingly, it is hereby
    ORDERED that the defendants’ motion [129] for summary
    judgment be, and hereby is, GRANTED IN PART and DENIED IN PART.
    Summary judgment is entered for the defendants on Payne’s claim
    in Count Three that he was retaliatorily terminated from the
    OCFO, and on Counts One and Four.       Summary judgment is denied as
    to Payne’s other claims of retaliation in Count Three.
    10
    Additionally, because Payne has not disputed the
    defendants’ assertion that this is the only remaining claim
    against Gandhi, Defs.’ Mem. at 7, 8, 12, Gandhi will be dismissed
    from this action.
    -25-
    Dr. Natwar Gandhi is dismissed as a party defendant.       It is
    further
    ORDERED that Payne’s motion [130] for partial summary
    judgment be, and hereby is, DENIED.    It is further
    ORDERED that Payne’s motion [168] for a status conference
    be, and hereby is, GRANTED.   The parties shall appear for a
    scheduling conference on December 17, 2013 at 11:00 a.m.
    SIGNED this 3rd day of December, 2013.
    /s/
    RICHARD W. ROBERTS
    Chief Judge
    

Document Info

Docket Number: Civil Action No. 2010-0679

Citation Numbers: 4 F. Supp. 3d 80, 2013 WL 6234517, 2013 U.S. Dist. LEXIS 169897

Judges: Chief Judge Richard W. Roberts

Filed Date: 12/3/2013

Precedential Status: Precedential

Modified Date: 11/7/2024

Authorities (25)

Brown v. George Washington University , 2002 D.C. App. LEXIS 379 ( 2002 )

Alexis v. District of Columbia , 44 F. Supp. 2d 331 ( 1999 )

Johnson v. District of Columbia , 2007 D.C. App. LEXIS 671 ( 2007 )

Lillian Kachmar v. Sungard Data Systems, Inc. Lawrence A. ... , 109 F.3d 173 ( 1997 )

Cafeteria & Restaurant Workers Union, Local 473 v. McElroy , 81 S. Ct. 1743 ( 1961 )

Clark County School District v. Breeden , 121 S. Ct. 1508 ( 2001 )

Che v. Massachusetts Bay Transportation Authority , 342 F.3d 31 ( 2003 )

Petition of DIS , 1985 D.C. App. LEXIS 415 ( 1985 )

Moore v. Hartman , 571 F.3d 62 ( 2009 )

Anderson v. Liberty Lobby, Inc. , 106 S. Ct. 2505 ( 1986 )

Holman v. Williams , 436 F. Supp. 2d 68 ( 2006 )

Payne v. District of Columbia , 773 F. Supp. 2d 89 ( 2011 )

Hopkins v. Price Waterhouse , 737 F. Supp. 1202 ( 1990 )

Sharma v. District of Columbia , 791 F. Supp. 2d 207 ( 2011 )

American Wildlands v. Kempthorne , 530 F.3d 991 ( 2008 )

Collins Securities Corporation and Timothy Collins v. ... , 562 F.2d 820 ( 1977 )

Oparaugo v. Watts , 2005 D.C. App. LEXIS 501 ( 2005 )

Wilburn v. District of Columbia , 2008 D.C. App. LEXIS 414 ( 2008 )

Crawford v. District of Columbia , 2006 D.C. App. LEXIS 15 ( 2006 )

St. Mary's Honor Center v. Hicks , 113 S. Ct. 2742 ( 1993 )

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