Clayton v. District of Columbia , 931 F. Supp. 2d 192 ( 2013 )


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  •                   UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    ______________________________
    )
    BETTY CLAYTON,                )
    )
    Plaintiff,               )
    )
    v.                       )     Civil Action No. 11-1889 (RWR)
    )
    DISTRICT OF COLUMBIA, et al., )
    )
    Defendants.              )
    ______________________________)
    MEMORANDUM OPINION AND ORDER
    Plaintiff Betty Clayton brings suit against the District of
    Columbia (“District”) and the District of Columbia National Guard
    (“DCNG”), alleging that the District violated the D.C.
    Whistleblower Protection Act (“DC-WPA”), 
    D.C. Code § 1-615.51
     et
    seq., the D.C. False Claims Act (“DC-FCA”), 
    D.C. Code § 2-381.01
    et seq.,1 and D.C. common law by retaliating against her for
    making protected disclosures and for engaging in other protected
    conduct, and the defendants violated the United States
    Constitution by depriving her of her property interest in her
    employment without due process.2   Clayton also seeks a
    1
    Clayton brings her claims under 
    D.C. Code § 2-308.16
     et
    seq. However, after Clayton filed her amended complaint, the DC-
    FCA was recodified at 
    D.C. Code § 2-381.01
     et seq.
    2
    Although Clayton’s amended complaint appears to allege all
    five counts against the District and the DCNG, Clayton states in
    her opposition to the defendants’ motions to dismiss that “the
    crux of Plaintiff’s claim against DCNG is as to the due process
    violations.” Pl.’s Consolidated Opp’n to Defs.’ D.C. & D.C.
    Nat’l Guard’s Mots. to Dismiss Am. Compl., Mem. of P. & A. in
    -2-
    declaratory judgment that 
    D.C. Code § 1-609.58
    (a) is
    unconstitutional.   The defendants move to dismiss the complaint
    under Federal Rule of Civil Procedure 12(b)(6) for failure to
    state a claim, and the DCNG moves under Rule 12(b)(1) to dismiss
    the complaint for lack of subject matter jurisdiction.     Because
    the court lacks subject matter jurisdiction over Clayton’s claims
    against the DCNG, the DCNG’s motion to dismiss will be granted.
    Because Clayton had amply pled a causal connection between her
    protected disclosures and the adverse employment action and shown
    that her DC-WPA claim is not time-barred, Clayton’s claims under
    DC-WPA and DC-FCA against the District will not be dismissed.
    Because Clayton failed to state a claim against the District
    under D.C. common law and the Fifth Amendment of the U.S.
    Constitution, Counts Three, Four, and Five of Clayton’s amended
    complaint will be dismissed as to the District.
    BACKGROUND
    Clayton’s amended complaint makes the following factual
    assertions.   In June 2008, Clayton was appointed as the Director
    of the D.C. Government Operations Division of the DCNG.    Am.
    Compl. ¶ 5.   The D.C. Government Operations Division is
    “simultaneously a Directorate within Joint Force [Headquarters],
    DC National Guard and an agency of the Government of the District
    Supp. of Pl.’s Consolidated Opp’n to Defs.’ D.C. & D.C. Nat’l
    Guard’s Mots. to Dismiss Am. Compl. (“Pl.’s Opp’n”) at 35 n.3.
    -3-
    of Columbia.”   
    Id. ¶ 9
    .3    When Clayton was appointed, the
    Director of the D.C. Government Operations Division was a Career
    Service position.   
    Id. ¶ 6
    .4    During the events relevant to the
    complaint, Clayton reported to Major General Errol Schwartz, the
    Commanding General of the Joint Force Headquarters of the DCNG.
    
    Id. ¶¶ 7, 13
    .   General Schwartz also completed Clayton’s
    performance evaluations and Clayton always received “flawless
    employment appraisals.”     
    Id. ¶ 10
    .    As the Commanding General of
    the DCNG, General Schwartz is a federal employee of the
    Department of Defense.      See 
    D.C. Code § 49-301
    (b).
    As the agency head, Clayton was “under an obligation and
    duty to investigate and discipline potential wrongdoing at the
    DCNG as well as report fraud, waste and abuse.”      Am. Compl. ¶ 11.
    In this capacity, from April 2010 through August 2010, Clayton
    reported several incidents of unlawful conduct within the DCNG.
    For example, Tamera Jones, General Schwartz’s administrative
    assistant, filed a sexual harassment complaint against the
    General.   
    Id. ¶ 14
    .   Despite pressure from Judge Advocate General
    (“JAG”) and federal Inspector General investigators “to not file
    3
    “The Division serves as the primary link between the
    District and the DCNG[.]” Def. D.C.’s Mot. to Dismiss the Am.
    Compl., Mem. of P. & A. in Supp. of Def. D.C.’s Mot. to Dismiss
    the Am. Compl. (“District’s Mem.”) at 3.
    4
    A Career Service employee “can be terminated only for
    ‘cause,’ and such terminations are subject to appeal to the
    District’s Office of Employee Appeals (‘OEA’).” District’s Mem.
    at 3-4 (citing D.C. Code. § 1-608.01(a)(13); Am. Compl. ¶ 104).
    -4-
    or report the sexual harassment allegations made by Ms. Jones[,]”
    Clayton reported Jones’s allegations in April 2010.     Id. ¶¶ 16-
    18.   Shortly after Clayton reported the sexual harassment
    complaint, General Schwartz threatened Clayton saying “we’ll see
    who’s sitting in that seat on October 1st.”     Id. ¶¶ 19-20.
    General Schwartz made similar termination threats in June or July
    2009, January 2010, and September 2010.     Id. ¶ 68.
    Later, Clayton reported that Charlotte Clipper, the Human
    Resources Supervisor of the D.C. Government Operations Division,
    had “engaged in behavior that was inappropriate and against
    policy on numerous occasions.”    Id. ¶¶ 8, 22.    For example,
    Clayton reported that Clipper had used a DCNG credit card to
    illegally pay for attorney’s fees for a non-work-related matter
    for a former employee, and that Clipper had promoted herself,
    “wrote her own performance evaluation for an incentive award,”
    and “inappropriately removed paychecks from the DCNG building[.]”
    Id. ¶¶ 24-29, 32.    Again, JAG investigators tried to stop Clayton
    from reporting Clipper’s violations, id. ¶¶ 36-37, but Clayton
    reported the violations, id. ¶ 38.      Clayton also reassigned
    Clipper and attempted to have her terminated from the DCNG.       Id.
    ¶ 40.    Clayton reported these and other violations to General
    Schwartz.    Id. ¶ 65.
    In May 2010, “General Schwartz’s staff solicited the advice
    of the D.C. Human Resources Department’s General Counsel
    -5-
    regarding General Schwartz’s administrative authority over the
    employees of the Government Operations Division.”   Id. ¶ 70.       On
    August 27, 2010, Attorney General Nickles responded to
    General Schwartz’s inquiry stating that the Division is a
    “subordinate agency of the Mayor of the District of Columbia” and
    that the Director of the Government Operations Division is “a
    District employee” who is “subject to the personnel rules,
    regulations, laws and the policy of the District[.]”    Def. D.C.’s
    Mot. to Dismiss the Am. Compl. (“District’s Mot.”), Ex. (Letter
    from Peter J. Nickles, Attorney General for the District of
    Columbia, to Major General Erroll [sic] R. Schwartz, Commanding
    General, District of Columbia National Guard (Aug. 27, 2010) at
    1-2).   The Director’s “chief responsibility” is “[s]upervision of
    District personnel assigned to the DCNG.”   Id. at 2.    Although
    the Division is a District agency, in light of the Division’s
    mission “to facilitate the coordination of operational programs
    so that the National Guard can efficiently respond to natural and
    civil emergencies in the District,” the Commanding General has
    “the opportunity to collaborate with District officials regarding
    the personnel matters of the Division[.]”   Id.   The Commanding
    General is also “free to confer with the Mayor” on personnel
    matters “if personnel problems rise to the level where it impacts
    the readiness of the National Guard[.]”   Id.
    -6-
    In August 2010, Clayton also met with Attorney General
    Nickels to discuss “the interplay between the Government
    Operations Division of the DCNG and the DCNG.”     Am. Compl. ¶ 77.
    The Attorney General told Clayton that she should report to Neil
    Albert, the District of Columbia City Administrator and a close
    personal friend of General Schwartz.    Id.   After meeting with the
    Attorney General, Clayton contacted Albert numerous times but was
    told that Albert could meet with her no sooner than mid-November
    2010.       Id.
    On September 27, 2010, Clayton received a letter stating
    that the Director position was being reclassified from a Career
    Service position to an at-will, Management Supervisory Service
    (“MSS”) position under 
    D.C. Code § 1-609.58
    (a).5    
    Id. ¶¶ 74, 78
    .
    5
    
    D.C. Code § 1-609.58
    (a) provides:
    Persons currently holding appointments to positions in
    the Career Service who meet the definition of
    “management employee” as defined in § 1-614.11(5) shall
    be appointed to the Management Supervisory Service
    unless the employee declines the appointment. Persons
    declining appointment shall have priority for
    appointment to the Career Service if a vacant position
    for which they qualify is available within the agency
    and is acceptable to the employee. If no such vacant
    position is available, a 30-day separation notice shall
    be issued to the employee, who shall be entitled to
    severance pay in the manner provided by § 1-624.09.
    
    D.C. Code § 1-609.58
    . This provision was added to the D.C.
    Government Comprehensive Merit Personnel Act in June 1998. Even
    though the language of the statute uses the modifier “currently,”
    it appears that the District has previously used the process
    outlined in the statute to reappoint to an MSS position a
    management employee who was appointed to a Career Service
    position after 1998. See, e.g., Final Brief for Appellees,
    Geleta v. Gray, 
    645 F.3d 408
     (D.C. Cir. 2011) (No. 10-7026), 2010
    -7-
    After learning that there were no vacant Career Service
    positions, Clayton accepted that her Director position would be
    converted to an MSS position.   Id. ¶ 75.    On October 26, 2010,
    Clayton received a notification from Albert that she was being
    terminated without cause effective November 10, 2010.    Id. ¶ 76.
    On October 26, 2011, Clayton filed suit against the District
    and the DCNG.   In Clayton’s five-count amended complaint, Clayton
    alleges in Counts One and Two that the District retaliated
    against her for making protected disclosures and engaging in
    protected conduct in violation of the DC-WPA and the DC-FCA
    respectively.   Id. ¶¶ 86-97.   Count Three alleges that the
    District wrongfully terminated Clayton in violation of District
    of Columbia common law.   Id. ¶¶ 98-102.    Count Four alleges that
    the District and the DCNG violated Clayton’s constitutional due
    process rights by depriving Clayton of her protected property
    interest in her employment and right to seek review of any
    termination of her employment with the Office of Employee Appeals
    (“OEA”) without due process, and seeks money damages for the
    constitutional violation.   Id. ¶¶ 103-07.    Count Five seeks a
    WL 6368292, at *12, *23-24. A “management employee” is “any
    person whose functions include responsibility for project
    management and supervision of staff and the achievement of the
    project’s overall goals and objectives.” 
    D.C. Code § 1-614.11
    (emphasis added). Thus, the Director of D.C. Government
    Operations -- as described in the Attorney General’s letter -- is
    a management employee subject to 
    D.C. Code § 1-609.58
    .
    -8-
    declaratory judgment that 
    D.C. Code § 1-609.58
    (a) is
    unconstitutional on its face and as applied.     
    Id.
     ¶ 117 & 18-19.
    The DCNG moves to dismiss the counts against it under Rule
    12(b)(1) because neither Congress nor the DCNG has waived
    sovereign immunity for Clayton’s constitutional claims.     D.C.
    Nat’l Guard’s Mot. to Dismiss, D.C. Nat’l Guard’s Mem. in Supp.
    of Mot. to Dismiss (“DCNG’s Mem.”) at 6-9.     The District also
    moves to dismiss the amended complaint under Rule 12(b)(6).
    District’s Mot. at 1.    Clayton opposes.
    DISCUSSION
    I.   CLAIMS AGAINST THE DCNG
    Clayton’s amended complaint seeks damages from the DCNG
    under the Fourteenth Amendment and a declaratory judgment that
    
    D.C. Code § 1-609.58
    (a) is unconstitutional.     The DCNG argues
    that both counts must be dismissed because they are barred by
    sovereign immunity.   DCNG’s Mem. at 6-9.
    “Absent a waiver, sovereign immunity shields the Federal
    Government and its agencies from suit.”     FDIC v. Meyer, 
    510 U.S. 471
    , 475 (1994); United States v. Mitchell, 
    463 U.S. 206
    , 212,
    (1983) (“It is axiomatic that the United States may not be sued
    without its consent and that the existence of consent is a
    prerequisite for jurisdiction.”).      “A waiver of sovereign
    immunity ‘must be unequivocally expressed in statutory text, and
    will not be implied.’”   Kurtz v. United States, 798 F. Supp. 2d
    -9-
    285, 289 (D.D.C. 2011) (quoting Lane v. Pena, 
    518 U.S. 187
    , 192
    (1996)).    If sovereign immunity has not been waived, a claim is
    subject to dismissal under Rule 12(b)(1) for lack of subject
    matter jurisdiction.   Mullen v. Bureau of Prisons, 
    843 F. Supp. 2d 112
    , 116 (D.D.C. 2012); see also Meyer, 
    510 U.S. at 475
    (stating that “[s]overeign immunity is jurisdictional in
    nature”).   “Plaintiff bears the burden of establishing that
    sovereign immunity has been abrogated.”   Stone v. Dep’t of Hsg. &
    Urban Dev’t, 
    859 F. Supp. 2d 59
    , 63 (D.D.C. 2012).
    In considering a motion to dismiss for lack of subject
    matter jurisdiction, a court “treat[s] the complaint’s factual
    allegations as true” and “grant[s] plaintiff ‘the benefit of all
    inferences that can be derived from the facts alleged[.]’”
    Sparrow v. United Air Lines, Inc., 
    216 F.3d 1111
    , 1113 (D.C. Cir.
    2000) (quoting Schuler v. United States, 
    671 F.2d 605
    , 608 (D.C.
    Cir. 1979)).   However, “[b]ecause subject matter jurisdiction
    focuses on the court’s power to hear the claim, . . . the court
    must give the plaintiff’s factual allegations closer scrutiny
    when resolving a Rule 12(b)(1) motion than would be required for
    a Rule 12(b)(6) motion[.]”   Aref v. Holder, 
    774 F. Supp. 2d 147
    ,
    159 (D.D.C. 2011).
    Clayton does not dispute the DCNG’s assertion that the DCNG
    is a federal entity.   Even if she did, “‘[i]t is apparent that
    the organized militia of the District of Columbia, which is
    -10-
    organized, armed, and controlled by the President of the United
    States, is essentially a component of the federal government.’”
    Lilly v. Schwartz, 
    713 F. Supp. 2d 15
    , 19 n.2 (D.D.C. 2010)
    (quoting Seegars v. Ashcroft, 
    297 F. Supp. 2d 201
    , 241 (D.D.C.
    2004)).   In light of the “degree of supervision and control
    exercised over the District Guard in peacetime by federal
    authorities[,]” the DCNG is a federal entity during times of
    peace and times of war.   O’Toole v. United States, 
    206 F.2d 912
    ,
    917-18 (3d Cir. 1953).
    Despite the DCNG’s status as a federal entity, Clayton
    argues that the court has subject matter jurisdiction over
    Clayton’s claim for damages allegedly caused by the DCNG’s
    constitutional violation because federal courts have jurisdiction
    to hear military personnel decisions where constitutional wrongs
    are alleged.   Clayton primarily relies on two cases for her
    argument: Lilly and Larsen v. U.S. Navy, 
    486 F. Supp. 2d 11
    (D.D.C. 2007).   However, neither case provides support for
    Clayton’s argument that the United States has waived sovereign
    immunity for claims for damages caused by constitutional
    violations.    In Lilly, the plaintiff brought suit challenging his
    removal from the DCNG and alleging that “the procedures that led
    to his separation were inadequate.”    Lilly, 
    713 F. Supp. 2d at 17
    .   There, the plaintiff sought an equitable remedy in the form
    of reinstatement to full active duty.   
    Id. at 16
    .   Similarly, in
    -11-
    Larsen, the plaintiff sought review of a military personnel
    decision, alleging a constitutional violation and seeking
    equitable remedies, and the court held that sovereign immunity
    did not bar the claim.   See Larsen, 
    486 F. Supp. 2d at 16-17
    .
    While these cases support a finding that constitutional
    violations in military personnel decisions can be reviewed by
    federal district courts, they do not disrupt the well-settled
    principle that sovereign immunity bars claims against federal
    agencies for damages caused by constitutional violations.     See
    Meyer, 
    510 U.S. at 486
     (holding that a remedy under Bivens v. Six
    Unknown Named Agents of Federal Bureau of Narcotics, 
    403 U.S. 388
    (1971), is not available against the agencies of the federal
    government); Duarte v. United States, 
    532 F.2d 850
    , 852 (2d Cir.
    1976).   Because Clayton has not met her burden to establish that
    this court has subject matter jurisdiction over her
    constitutional claim for damages, Count IV of her amended
    complaint will be dismissed as against the DCNG.
    The DCNG also argues that the court does not have subject
    matter jurisdiction over Clayton’s claim against it for a
    declaratory judgment that 
    D.C. Code § 1-609.58
    (a) is
    unconstitutional.   Clayton asserts that this court has
    jurisdiction to hear her claims under 
    28 U.S.C. §§ 1332
     and 1367.
    Am. Compl. ¶ 4.   However, neither statute waives sovereign
    immunity.   See Reading v. United States, 
    506 F. Supp. 2d 13
    ,
    -12-
    20-21 (D.D.C. 2007).   Similarly, the Declaratory Judgment Act, 
    28 U.S.C. § 2201
    , provides a remedy where the court already has
    jurisdiction, but the Act does not waive sovereign immunity.     See
    Stone v. Holder, 
    859 F. Supp. 2d 48
    , 52 (D.D.C. 2012) (citing
    Walton v. Fed’l Bureau of Prisons, 
    533 F. Supp. 2d 107
    , 114
    (D.D.C. 2008)).   Because Clayton has not demonstrated that
    sovereign immunity has been abrogated for her claim seeking
    declaratory relief, Count V will be dismissed as to the DCNG.6
    II.   CLAIMS AGAINST THE DISTRICT
    The District alleges that Clayton’s amended complaint should
    be dismissed because it fails to state a claim against it.
    A district court can dismiss a complaint under Rule 12(b)(6)
    when the complaint “fail[s] to state a claim upon which relief
    can be granted[.]”   Fed. R. Civ. P. 12(b)(6); see also Browning
    v. Clinton, 
    292 F.3d 235
    , 242 (D.C. Cir. 2002) (“A Rule 12(b)(6)
    motion tests the legal sufficiency of a complaint[.]”).
    To survive a motion to dismiss, a complaint must
    contain sufficient factual matter, accepted as true, to
    “state a claim to relief that is plausible on its
    face.” A claim has facial plausibility when the
    plaintiff pleads factual content that allows the court
    to draw the reasonable inference that the defendant is
    liable for the misconduct alleged.
    Ashcroft v. Iqbal, 
    556 U.S. 662
    , 678 (2009) (citations omitted)
    (quoting Bell Atl. Corp. v. Twombly, 
    550 U.S. 544
    , 570 (2007)).
    6
    Moreover, Clayton has not established that it would be
    proper to sue DCNG -- a federal entity -- for a declaratory
    judgment that a District of Columbia statute is unconstitutional.
    -13-
    “[A] complaint attacked by a Rule 12(b)(6) motion to dismiss does
    not need detailed factual allegations[.]”    Twombly, 
    550 U.S. at 555
    .   However, “[w]here a complaint pleads facts that are ‘merely
    consistent with’ a defendant’s liability, it ‘stops short of the
    line between possibility and plausibility of entitlement to
    relief.’”    Iqbal, 
    556 U.S. at 678
     (internal quotation marks
    omitted) (quoting Twombly, 
    550 U.S. at 557
    ).
    When considering a Rule 12(b)(6) motion, a court construes
    the complaint in the light most favorable to the plaintiff and
    “assume[s] the truth of all well-pleaded allegations.”    Warren v.
    District of Columbia, 
    353 F.3d 36
    , 39 (D.C. Cir. 2004).     The
    court may consider “only the facts alleged in the complaint, any
    documents either attached to or incorporated in the complaint and
    matters of which [it] may take judicial notice.”    EEOC v. St.
    Francis Xavier Parochial Sch., 
    117 F.3d 621
    , 624 (D.C. Cir.
    1997).
    A.    Causal connection between protected activity and
    adverse employment action
    The District argues that Clayton failed to allege sufficient
    facts in Counts One, Two, and Three to demonstrate that there was
    a causal connection between Clayton’s protected activities and
    the adverse employment action.    District’s Mot. at 1.
    Clayton must allege that there is a causal link between her
    supervisors’ threats of termination and her ultimate termination
    on the one hand and her protected disclosures on the other hand
    -14-
    to state a claim of retaliation under the DC-WPA7 and DC-FCA8 or
    a claim of wrongful termination under D.C. common law9.    Despite
    the plaintiff’s burden, it is well-established that “[a]
    plaintiff alleging retaliation faces a low hurdle at the motion
    to dismiss stage.”   Teliska v. Napolitano, 
    826 F. Supp. 2d 94
    ,
    100 (D.D.C. 2011) (collecting cases).   With respect to causation,
    “[a]t this early stage of the proceedings, plaintiff can meet her
    prima facie burden of causation simply by alleging that the
    adverse actions [that were supported by facts in her complaint]
    were caused by her protected activity.”   Vance v. Chao, 
    496 F. Supp. 2d 182
    , 185, 187 (D.D.C. 2007).
    7
    See Wilburn v. District of Columbia, 
    957 A.2d 921
    , 922 n.3
    (D.C. 2008) (“A public employee makes a prima facie case [of
    retaliation in violation of the DC-WPA] by showing that the
    protected disclosure was a contributing factor in the prohibited
    personnel action[.]” (citing Johnson v. District of Columbia, 
    935 A.2d 1113
    , 1119 (D.C. 2007))).
    8
    See Payne v. District of Columbia, 
    773 F. Supp. 2d 89
    , 97
    (D.D.C. 2011) (“To establish a D.C. False Claims Act retaliation
    claim, a plaintiff must show (1) that he or she engaged in
    protected activity, (2) that the defendant had knowledge that the
    plaintiff engaged in such protected activity, (3) that the
    defendant terminated the plaintiff’s employment, and (4) that
    there was a causal connection between the protected activity and
    the defendant’s termination of the plaintiff’s employment.”).
    9
    To state a claim of wrongful termination under D.C. common
    law, a plaintiff must “clearly articulate the applicable public
    policy, [and] show a causal connection between protected activity
    in which that plaintiff engaged and his or her termination.”
    Stevens v. Sodexo, Inc., 
    846 F. Supp. 2d 119
    , 126 (D.D.C. 2012).
    “That is, the plaintiff ‘must have been terminated for acting in
    a protected manner.’” 
    Id.
     (quoting Robinson v. Securitas Servs.,
    Inc., 
    819 F. Supp. 2d 18
    , 21 (D.D.C. 2011)).
    -15-
    A plaintiff may show causation through direct evidence or
    circumstantial evidence, such as by showing that the employer had
    knowledge of the employee’s protected conduct and a close
    temporal proximity between the employer’s knowledge and the
    adverse actions.   Rattigan v. Gonzales, 
    503 F. Supp. 2d 56
    , 77
    (D.D.C. 2007); see also Johnson, 
    935 A.2d at 1120-21
    .     Clayton
    argues that her amended complaint alleges sufficient facts to
    create an inference that her reclassification and termination
    were in retaliation for her protected conduct.10     Clayton’s
    amended complaint supports a finding that the District knew of
    Clayton’s protected conduct and that there was a close temporal
    relationship between that knowledge and the adverse employment
    action.   The amended complaint alleges that Albert and General
    Schwartz were personal friends.   Am. Compl. ¶ 77.    It also
    suggests that Albert refused to meet with Clayton until after her
    10
    In her opposition, Clayton also argues that her notice of
    reassignment is direct evidence that her reclassification and
    termination were retaliatory because the notice stated that the
    reclassification “‘[was] taken in accordance with’ [General
    Schwartz’s] inquiries.” Pl.’s Opp’n at 13 (first alteration in
    original). However, Clayton’s amended complaint does not contain
    this factual allegation and neither party has submitted a copy of
    the reassignment notice for consideration. Thus, this argument
    will not be considered because it is not relevant to determine
    whether Clayton has pled sufficient facts in her amended
    complaint to state a cause of action for her claims. See
    Arbitraje Casa de Cambio, S.A. de C.V. v. U.S. Postal Serv., 
    297 F. Supp. 2d 165
    , 170 (D.D.C. 2003) (“‘It is axiomatic that a
    complaint may not be amended by the briefs in opposition to a
    motion to dismiss.’” (quoting Coleman v. Pension Benefit Guar.
    Corp., 
    94 F. Supp. 2d 18
    , 24 n.8 (D.D.C. 2000))).
    -16-
    termination was effective.   
    Id.
        Considered in the light most
    favorable to Clayton, these allegations and the reasonable
    inferences drawn from them support a finding that Albert knew of
    Clayton’s protected conduct.
    The temporal proximity between Clayton’s protected
    activities and her reclassification and termination also support
    Clayton’s argument that the adverse employment actions were
    retaliatory.    Clayton alleges that she engaged in protected
    conduct through August 2010.   See id. ¶ 42.    Clayton’s position
    was reclassified the next month and she was notified of her
    termination in October 2010.   Id. ¶¶ 74, 76.    The passage of
    merely two months between Clayton’s protected conduct and the
    reclassification and termination can be sufficient to establish a
    causal connection.    See Booth v. District of Columbia, 
    701 F. Supp. 2d 73
    , 79 (D.D.C. 2010).     Clayton’s retaliation and
    wrongful termination claims will not be dismissed for failure to
    state a claim.
    B.      DC-WPA claim
    Clayton claims that reclassifying the Director position as
    an MSS position violated the DC-WPA.    The District argues this
    claim should be dismissed because it is time-barred.    District’s
    Mot. at 1.    To bring a civil action against the District under
    DC-WPA, a complainant must file the action “within 3 years after
    a violation occurs or within one year after the employee first
    -17-
    becomes aware of the violation, whichever occurs first.”   
    D.C. Code § 1-615.54
    (a)(2).   Clayton filed her original complaint on
    October 26, 2011.   Courts presume that an employee becomes aware
    of the violation at the time that the adverse employment act
    occurs.   See Sharma v. District of Columbia, 
    791 F. Supp. 2d 207
    ,
    214 (D.D.C. 2011); Stephenson v. Am. Dental Ass’n, 
    789 A.2d 1248
    ,
    1250 (D.C. 2002).   However, an employee may argue that she did
    not learn that the action was retaliatory until some later date,
    and thus, the one-year statutory period began later.   See Payne
    v. District of Columbia, 
    808 F. Supp. 2d 164
    , 171 (D.D.C. 2011)
    (explaining that the one-year statute of limitations for the
    employee’s DC-WPA claim that his termination was retaliatory
    began when the employee received notice of his termination
    because the employee “never argued that he did not discover that
    his termination was retaliatory until some later date”).
    The parties implicitly agree that a one-year statute of
    limitations applies to Clayton’s reclassification claim but they
    disagree to as to when the period began.   The District argues
    that the one-year period began on September 27, 2010 when Clayton
    “received a letter ‘removing her from her protected career
    service position and reassigning her to an at-will MSS
    position[.]’”   District’s Mot., Mem. of P. & A. in Supp. of Def.
    D.C.’s Mot. to Dismiss the Am. Compl. (“District’s Mem.”) at 9
    (quoting Am. Compl. ¶ 74).   Clayton alleges that although she
    -18-
    received notice of reclassification on September 27, 2010, she
    did not discover that the reclassification was retaliatory until
    her termination became effective on November 10, 2010.    See Pl.’s
    Consolidated Opp’n to Defs.’ D.C. & D.C. Nat’l Guard’s Mots. to
    Dismiss Am. Compl., Mem. of P. & A. in Supp. of Pl.’s
    Consolidated Opp’n to Defs.’ D.C. & D.C. Nat’l Guard’s Mots. to
    Dismiss Am. Compl. (“Pl.’s Opp’n”) at 10-11 (arguing that it was
    not until November 2010 when “the operative facts of the
    retaliation were revealed and made known to Plaintiff and the
    discriminatory animus became known”).   Assuming that Clayton’s
    allegation that she did not discover that the reclassification
    was retaliatory until November 10, 2010 is true, her claim that
    the reclassification of her Career Service position to an MSS
    position was retaliatory was not filed untimely.
    C.   Wrongful termination claim
    The District also argues that Clayton’s wrongful termination
    claim should be dismissed for failure to state a claim.
    District’s Mem. at 15–17.   Clayton counters that her wrongful
    termination claim falls under the “Adams exception” and is
    distinct from her DC-WPA claim because Clayton also claims that
    she was terminated for reporting Jones’s sexual harassment
    complaint and “for taking action to stop [Clipper’s] illegal
    activity[,]” not just for reporting it.   Pl.’s Opp’n at 24.
    -19-
    Generally, an employer may terminate an “at-will” employee
    at any time for any reason.   However, in Adams v. George W.
    Cochran & Co., Inc., 
    597 A.2d 28
    , 34 (D.C. 1991), the District of
    Columbia Court of Appeals recognized a narrow public policy
    exception to the at-will doctrine when “the sole reason for the
    discharge is the employee’s refusal to violate the law, as
    expressed in a statute or municipal regulation.”    
    Id.
       In Carl v.
    Children’s Hospital, 
    702 A.2d 159
     (D.C. 1997), the court expanded
    the public policy exception to include any exception “firmly
    anchored either in the Constitution or in a statute or regulation
    which clearly reflects the particular ‘public policy’ being
    relied upon.”   
    Id. at 162
     (Terry, J., concurring); see also
    Stevens v. Sodexo, Inc., 
    846 F. Supp. 2d 119
    , 126 (D.D.C. 2012).
    To state a claim for wrongful termination, the at-will
    employee must “clearly articulate the applicable public
    policy[.]”   Stevens, 846 F. Supp. 2d at 126.    Even where there is
    a showing of a clearly identifiable policy, the D.C. Court of
    Appeals has refused to find new exceptions to the doctrine of
    at-will employment where the legislature has already “‘creat[ed]
    a specific, statutory cause of action to enforce’ the public
    policy at issue.”   See LeFande v. District of Columbia, 
    864 F. Supp. 2d 44
    , 50 (D.D.C. 2012) (quoting Carter v. District of
    Columbia, 
    980 A.2d 1217
    , 1225-26 (D.C. 2009)).
    -20-
    Here, Clayton’s wrongful termination claim fails for two
    reasons.   First, to the extent that Clayton claims that she was
    wrongfully terminated because she reported Jones’s sexual
    harassment complaint and attempted to stop Clipper’s allegedly
    illegal activity, Clayton does not clearly articulate the
    applicable public policy found in the Constitution, a statute, or
    a regulation.   Her amended complaint alleges that as the Director
    of the D.C. Government Operations Division, Clayton was “under an
    obligation and duty to investigate and discipline potential
    wrongdoing at the DCNG[.]”   Am. Compl. ¶ 11; see also id. ¶ 18.
    However, Clayton does not identify an actual statute or municipal
    regulation that articulates the public policy she believes was
    involved here, and a general, vague duty does not suffice to
    state a claim of wrongful termination.   See Robinson, 819 F.
    Supp. 2d at 21-22.
    Second, to the extent that Clayton claims that she was
    wrongfully terminated because she reported fraud, waste, and
    abuse, her wrongful termination claim fails because this conduct
    also violates the DC-WPA and the DC-WPA provides a remedy for the
    illegal conduct.11   The public policy exception to the at-will
    11
    The DC-WPA “prohibits a supervisor from taking a
    ‘prohibited personnel action,’ including terminating an employee,
    in retaliation for that employee’s having made a ‘protected
    disclosure.’” Williams v. District of Columbia, 
    9 A.3d 484
    , 488
    (D.C. 2010) (quoting 
    D.C. Code §§ 1-615.52
    , 53). A protected
    disclosure is
    any disclosure of information . . . , including a
    -21-
    doctrine “must arise from a statute or regulation that does not
    provide its own remedy.”   Stevens, 846 F. Supp. 2d at 126 (citing
    Carson v. Sim, 
    778 F. Supp. 2d 85
    , 97 (D.D.C. 2011)).    Thus,
    because Clayton’s “conduct in reporting violations fell squarely
    under the aegis of the [DC-WPA,]” recognizing a public policy
    exception here is not warranted.   See Carter, 
    980 A.2d at 1225-26
    (declining to find a public policy exception where the plaintiff
    alleged that she was terminated for making protected
    disclosures).
    D.   Due process claims
    Clayton claims that converting the Director position to an
    MSS position and terminating her violated the Due Process Clause
    of the Fifth Amendment.    Clayton also brings a facial challenge
    to the constitutionality of 
    D.C. Code § 1-609.58
    (a).    The
    disclosure made in the ordinary course of an employee’s
    duties by an employee to a supervisor or a public body
    that the employee reasonably believes evidences:
    (A) Gross mismanagement;
    (B) Gross misuse or waste of public resources or funds;
    (C) Abuse of authority in connection with the
    administration of a public program or the execution of
    a public contract;
    (D) A violation of a federal, state, or local law,
    rule, or regulation, or of a term of a contract between
    the District government and a District government
    contractor which is not of a merely technical or
    minimal nature; or
    (E) A substantial and specific danger to the public
    health and safety.
    
    D.C. Code § 1-615.52
    . “An employee aggrieved by a violation of
    the [DC-WPA] may bring a civil action against the District . . .
    seeking relief and damages[.]” 
    D.C. Code § 1-615.54
    (a)(1).
    -22-
    District argues that Clayton’s facial challenge is contrary to
    settled law and does not state a claim for procedural due
    process.12    District’s Mot. at 1.
    To state a procedural due process claim, a plaintiff must
    show that she was deprived of life, liberty, or property without
    due process of law.    See Propert v. District of Columbia, 
    948 F.2d 1327
    , 1331 (D.C. Cir. 1991).       “Property interests are not
    created by the Constitution, ‘they are created and their
    dimensions are defined by existing rules or understandings that
    stem from an independent source such as state law[.]’”      Cleveland
    Bd. of Educ. v. Loudermill, 
    470 U.S. 532
    , 538 (1985) (quoting Bd.
    of Regents of State Colls. v. Roth, 
    408 U.S. 564
    , 577 (1972)).
    1.   Reclassifying Director position
    The District argues that reclassifying the Director position
    from a Career Service position to an MSS position did not violate
    Clayton’s due process rights as a matter of law because the
    position was reclassified to comply with 
    D.C. Code § 1-609.58
    (a),
    a legislative action converting Career Service managers to at-
    will employees that the legislature had the right to take.
    District’s Mem. at 19-21.
    12
    The District does not challenge the adequacy of Clayton’s
    as-applied constitutional challenge. Accordingly, that claim
    will not be dismissed.
    -23-
    Clayton was hired into a Career Service position that
    carried with it a property right.13    “[A] D.C. Career Service
    employee ha[s] a protected property interest in his job” because
    he can be removed only for cause.     Thompson v. District of
    Columbia, 
    530 F.3d 914
    , 918 (D.C. Cir. 2008); see also Hoey v.
    District of Columbia, 
    540 F. Supp. 2d 218
    , 225 (D.D.C. 2008) (“By
    ensuring that Career Service employees may only be terminated (or
    otherwise disciplined) for cause and after adequate notice, the
    [Comprehensive Merit Personnel Act] bestows upon Career Service
    employees a legitimate claim of entitlement to their continued
    employment that gives rise to a property interest protected by
    the Due Process Clause.” (internal quotation marks omitted)).
    Accordingly, a Career Service employee cannot “be ‘removed from
    the Service’ without receiving due process.”    Thompson, 
    530 F.3d at
    918 (citing D.C. Dep’t of Corr. v. Teamsters Union Local No.
    246, 
    554 A.2d 319
    , 326 (D.C. 1989)).
    13
    While the District does not dispute that a Career Service
    employee has a property right in her job, the District argues
    that Clayton does not have a property interest in her right to
    seek review with the OEA of any termination of her employment.
    District’s Mem. at 17 n.13 (citing Brandon v. D.C. Bd. of Parole,
    
    823 F.2d 644
    , 649 (D.C. Cir. 1987) (explaining that the process
    due is distinct from the substantive interest)). Although
    Clayton alleges in her amended complaint that she had a property
    interest in her right to appeal her termination to the OEA,
    Clayton does not respond in her opposition to the District’s
    argument. Thus, the District’s argument is undisputed and will
    be deemed conceded. See Iweala v. Operational Techs. Servs.,
    Inc., 
    634 F. Supp. 2d 73
    , 80–81 (D.D.C. 2009).
    -24-
    “[The court] [h]aving determined that [Clayton] possessed a
    protected property interest in [her Career Service position], the
    next question is what process was due.”    Propert, 
    948 F.2d at 1331
    .    Generally, a hearing is required before a party can be
    deprived of a property right.    Where a party is deprived of a
    property right following enactment of a statute, though, “the
    legislative determination provides all the process that is
    due[.]”    Logan v. Zimmerman Brush Co., 
    455 U.S. 422
    , 433 (1982);
    see also Bi-Metallic Inv. Co. v. State Bd. of Equalization, 
    239 U.S. 441
    , 445 (1915).    The District reclassified the Director
    position as an MSS position to comply with 
    D.C. Code § 1-609.58
    .
    Clayton does not argue that the legislative process to enact the
    statute was constitutionally deficient, but she notes that 
    D.C. Code § 1-609.58
     was enacted long before her appointment and was
    not what triggered the reclassification.    Given that, it may be
    that her initial designation as a Career Service employee rather
    than an MSS employee was faulty.    Nevertheless, the District
    argues that Clayton received all the process due under the
    statute when a Career Service management employee is converted to
    MSS status.    Clayton neither disputes the legislative prerogative
    to abolish protected government jobs nor sets forth what process
    was due her in addition to the alternatives she was offered by
    law to accept the reclassification or pursue other Career Service
    opportunities, unpleasant as the alternatives may have been.
    -25-
    Clayton’s claim that reclassification of her position was
    unconstitutional will be dismissed.14
    Clayton also claims that 
    D.C. Code § 1-609.58
    (a) is
    unconstitutional on its face.   The District argues that this
    claim should be dismissed because Clayton did not establish that
    there is no set of circumstances under which the statute could be
    constitutional.   District’s Mem. at 21 n.14.    As is discussed
    above, when a general statute works to deprive a person of a
    property interest, the democratic process and not an
    individualized deprivation hearing sufficiently protects their
    rights.   See Bi-Metallic, 
    239 U.S. at 445-46
    .    Moreover, Clayton
    failed to meet her heavy burden to show that the statute is
    unconstitutional.   See Kraft Gen. Foods, Inc. v. Iowa Dep’t of
    Revenue & Fin., 
    505 U.S. 71
    , 82 (1992).   Clayton fails to allege
    facts sufficient to “establish that no set of circumstances
    exists under which [
    D.C. Code § 1-609.58
    ] would be valid.”      See
    United States v. Salerno, 
    481 U.S. 739
    , 745 (1987).     Thus,
    14
    Clayton’s argument that the District applied 
    D.C. Code § 1-609.58
     as pretext to unlawfully reclassify her position,
    Pl.’s Opp’n at 34, does not compel a different conclusion.
    Clayton does not contest that the Director of the D.C. Government
    Operations Division is a “management employee.” Section 1-609.58
    does not allow the District any discretion in deciding whether to
    a reclassify a Career Service position held by a “management
    employee” as an MSS position. Thus, “the state of mind of local
    officials who enforce or comply with state or federal regulations
    is immaterial to whether the local government is violating the
    Constitution if the local officials could not act otherwise
    without violating state or federal law.” Bethesda Lutheran Homes
    & Servs., Inc. v. Leean, 
    154 F.3d 716
    , 718 (7th Cir. 1998).
    -26-
    Clayton’s facial challenge will be dismissed for failure to state
    a claim.
    2.     Termination
    The District argues that Clayton’s termination did not
    violate the Due Process Clause because Clayton did not have a
    protected property interest in her job at the time she was
    terminated.     District’s Mem. at 18-19.   Unlike a Career Service
    position, “an at-will [MSS] employee has no liberty or property
    interest in continued employment, and it is clear that D.C. law
    creates no such interest.”      O’Donnell v. Barry, 
    148 F.3d 1126
    ,
    1139 (D.C. Cir. 1998).    Because Clayton was an at-will, MSS
    employee at the time she was terminated, she did not have a
    property interest in her position and she was not entitled to an
    OEA appeal before she was terminated.       See Leonard v. District of
    Columbia, 
    794 A.2d 618
    , 623-27 (D.C. 2002).
    CONCLUSION AND ORDER
    Because Clayton did not establish that the DCNG waived
    sovereign immunity, the DCNG’s motion to dismiss will be granted.
    Clayton alleged a causal connection between her protected
    disclosures and the adverse employment actions and demonstrated
    that her DC-WPA claim is not time-barred.       Thus, Clayton’s DC-WPA
    and DC-FCA claims will not be dismissed.      Because Clayton failed
    to state a claim of wrongful termination, her common law claim
    will be dismissed.    Clayton has not pled facts reflecting that
    -27-
    she was denied due process when the Director position was
    reclassified as an MSS position, and Clayton did not have a
    property interest in her job at the time she was terminated.     In
    addition, Clayton failed to state a claim making a facial
    challenge to 
    D.C. Code § 1-609.58
    (a).   Thus, her due process
    claim and claim for a declaratory judgment that 
    D.C. Code § 1.609-58
    (a) is unconstitutional on its face will be dismissed.
    Accordingly, it is hereby
    ORDERED that the DCNG’s motion [27] to dismiss be, and
    hereby is, GRANTED.    It is further
    ORDERED that the District’s motion [26] to dismiss be, and
    hereby is GRANTED IN PART and DENIED IN PART.   The District’s
    motion regarding Counts One and Two of Clayton’s amended
    complaint is denied.   Counts Three and Four and Clayton’s facial
    challenge to 
    D.C. Code § 1-609.58
    (a) in Count Five of Clayton’s
    amended complaint are dismissed.
    SIGNED this 21st day of March, 2013.
    /s/
    RICHARD W. ROBERTS
    United States District Judge
    

Document Info

Docket Number: Civil Action No. 2011-1889

Citation Numbers: 931 F. Supp. 2d 192

Judges: Judge Richard W. Roberts

Filed Date: 3/21/2013

Precedential Status: Precedential

Modified Date: 8/31/2023

Authorities (47)

Herman Duarte v. United States of America and United States ... , 532 F.2d 850 ( 1976 )

O'TOOle v. United States , 206 F.2d 912 ( 1953 )

Geleta v. Gray , 645 F.3d 408 ( 2011 )

Dolly Kyle Browning and Direct Outstanding Creations ... , 292 F.3d 235 ( 2002 )

Sparrow, Victor H. v. United Airlines Inc , 216 F.3d 1111 ( 2000 )

Bethesda Lutheran Homes and Services, Inc. v. Joseph Leean , 154 F.3d 716 ( 1998 )

Johnson v. District of Columbia , 935 A.2d 1113 ( 2007 )

Carl v. Children's Hospital , 702 A.2d 159 ( 1997 )

Roosevelt Brandon v. District of Columbia Board of Parole , 823 F.2d 644 ( 1987 )

Equal Employment Opportunity Commission v. St. Francis ... , 117 F.3d 621 ( 1997 )

Christopher B. Propert v. District of Columbia, a Municipal ... , 948 F.2d 1327 ( 1991 )

O'Donnell, Philip v. Barry, Marion S. , 148 F.3d 1126 ( 1998 )

Thompson v. District of Columbia , 530 F.3d 914 ( 2008 )

Warren v. District of Columbia , 353 F.3d 36 ( 2004 )

Williams v. District of Columbia , 9 A.3d 484 ( 2010 )

Leonard v. District of Columbia , 794 A.2d 618 ( 2002 )

Wilburn v. District of Columbia , 957 A.2d 921 ( 2008 )

District of Columbia Department of Corrections v. Teamsters ... , 554 A.2d 319 ( 1989 )

Stephenson v. American Dental Ass'n , 789 A.2d 1248 ( 2002 )

Carter v. District of Columbia , 980 A.2d 1217 ( 2009 )

View All Authorities »