Payne v. District of Columbia ( 2013 )

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.
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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.
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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
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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
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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.
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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
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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
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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
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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.
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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.
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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’
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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.
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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.
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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
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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,
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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.
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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
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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
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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
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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.
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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
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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
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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.
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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