Clayton v. Dist. of Columbia

374 F.Supp.3d 119

Betty CLAYTON, Plaintiff,

v.DISTRICT OF COLUMBIA, et al., Defendants.

Civil Action No. 11-1889 (RDM)

United States District Court, District of Columbia.

Signed March 20, 2019

Levi S. Zaslow, Timothy Francis Maloney, Joseph, Greenwald & Laake, P.A., Greenbelt, MD, for Plaintiff.

Chad Wayne Copeland, Eric Uriol Johnson, Robert Joseph Rich, Shanna Laura Cronin, Office of the Attorney General for the District of Columbia, Washington, DC, for Defendant District of Columbia.

Roberto Cesar Martens, Jr., Jeremy Allen Haugh, Shanna Laura Cronin, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant District of Columbia National Guard.

MEMORANDUM OPINION AND ORDER

RANDOLPH D. MOSS, United States District Judge

The matter is before the Court on Defendants' motions for summary judgment. Dkt. 96; Dkt. 97. Plaintiff Betty Clayton, the former Director of D.C. Government Operations of the District of Columbia National Guard ("DCNG"), is suing the District of Columbia ("the District") and the DCNG for unlawful retaliation and sex discrimination under Title VII of the Civil Rights Act of 1964, and for unlawful retaliation under D.C. law. Clayton alleges that her career position was converted to at-will employment and that she was subsequently terminated because of her various whistleblowing activities, and she further alleges that she was terminated because of her sex. Defendants counter that Clayton was fired because of her poor job performance. Neither the District nor the DCNG, however, can identify the person who made the decision to terminate Clayton, anyone who can explain how the decision was made, or anyone who can offer a contemporaneous account of why the decision was made.

In light of that evidentiary lacuna and the fact that Clayton has adduced sufficient evidence for a reasonable jury to infer that her termination was in retaliation for reporting another employee's sexual harassment allegations against the Commanding General of the DCNG, the Court will deny both motions for summary judgment as to Clayton's Title VII retaliation claims. The Court will, however, grant both motions as to Clayton's sex discrimination claims. With respect to Clayton's D.C. law claims, the Court will grant summary judgment in favor of the District as to Clayton's retaliation claim under the D.C. False Claims Act and will deny summary judgment as to Clayton's retaliation claim under the D.C. Whistleblower Protection Act. The following claims, accordingly, remain in the case: Clayton's Title VII retaliation claims against both defendants and Clayton's D.C. Whistleblower Protection Act claim against the District.

I. BACKGROUND

This is not the Court's first opinion in this long-running employment discrimination and retaliation case. See Clayton v. District of Columbia , 931 F.Supp.2d 192 (D.D.C. 2013) (Roberts, C.J.) (" Clayton I "); Clayton v. District of Columbia , 999 F.Supp.2d 178 (D.D.C. 2013) (Roberts, C.J.) (" Clayton II "); Clayton v. District of Columbia , 117 F.Supp.3d 68 (D.D.C. 2015) (Moss, J.) (" Clayton III "). Since the inception of her suit in 2011, Clayton has partially survived multiple motions to dismiss, Dkt. 34; Dkt. 72, twice amended her complaint, Dkt. 22; Dkt. 45, and engaged in extensive discovery, including taking over a dozen depositions, see Dkt. 115. For the purposes of resolving Defendants' pending motions for summary judgment, the Court will only briefly recount the relevant background before delving into the facts in the analysis of the parties' respective arguments.

A. Factual Background

1. D.C. Government Operations Division

On June 23, 2008, Clayton was appointed Director of the D.C. Government Operations Division (the "Division") of the DCNG, which was then classified as a career service position. Dkt. 96-1 at 3 (DCNG Statement of Undisputed Material Facts ("SUMF") ¶ 11); Dkt. 97 at 50 (District SUMF ¶ 1); Dkt. 106 at 83 (Clayton Statement of Material Facts ("SMF") ¶¶ 4–5).¹ The Division "coordinate[s] operational programs so that the DCNG can efficiently respond to natural and civil emergencies in the District." Dkt. 96-1 at 1 (DCNG SUMF ¶ 2). Clayton interviewed with a panel of DCNG employees and Erroll Schwartz, then Adjunct General of the DCNG; she was formally appointed to her position by the District. Dkt. 106 at 82–83 (Clayton SMF ¶¶ 2–4). As the Director, Clayton supervised at least six employees, "mak[ing] sure they got their work done on time, mak[ing] sure [the Division was] coordinating properly with D.C. government downtown, and [managing] the budget for the agency." Dkt. 97 at 50–51 (District SUMF ¶¶ 2–3).

The parties dispute whether, at the time of Clayton's tenure as Director, the Division was an entity within the District government or within both the DCNG and the District government. Compare Dkt. 96-1 at 2 (DCNG SUMF ¶ 3) ("District Government Operations is a District Division within the District City Administrator's Office."), and id. (DCNG SUMF ¶ 5) ("District Government Operations employees working at the Armory are District employees subject to District, not DCNG, policies procedures, and guidelines."), with Dkt. 106 at 83–84 (Clayton SMF ¶ 8) ("[F]rom the 2008–2010 timeframe[,] ... the DC Government Operations [was] simultaneously a Directorate within Joint Force Head Quarters, DC National Guard[,] and an agency of the Government of the District of Columbia."). They also dispute the nature of Clayton's reporting relationship with the City Administrator's Office and the Commanding General of the DCNG. Compare Dkt. 96-1 at 2 (DCNG SUMF ¶ 4) ("Neil Albert, as District City Administrator, was ... Clayton's supervisor."), with Dkt. 106 at 84 (Clayton SMF ¶ 10) ("Clayton reported to both the commanding general and the mayor and city administrator.").

The parties agree, however, that, on August 27, 2010, D.C. Attorney General Peter Nickels addressed the legal status of the Division in a memorandum to the Commanding General of the DCNG at the time, Erroll Schwartz. See Dkt. 107-60 (Nickels Memo). That memorandum stated, in relevant part: the "Division, a unit that supports the DCNG, is a subordinate agency of the Mayor of the District of Columbia." Id. at 2 (Nickels Memo). It further explained that "the Mayor shall exercise supervisory authority over the Director of the Division on matters that pertain to the personnel affairs of District employees," but that, "for matters that pertain exclusively to the National Guard, while the Division Director is in the chain of command of the Mayor and the City Administrator, she also has an informal, dotted-line reporting relationship with the Commanding General." Id. at 3 (Nickels Memo).

2. Clayton's Alleged Whistleblowing Activities

Clayton served as Director of the Division from June 2008 to October 2010. See Dkt. 96-1 at 3 (DCNG SUMF ¶ 11) (June 23, 2008 appointment date); Dkt. 97-17 at 2 (Oct. 26, 2010 Separation Notice). She alleges that, during her tenure, she reported numerous instances of "potential wrongdoing at the DCNG" and that, "[a]s a result ... [,] [she] was terminated from employment by the District of Columbia and the District of Columbia National Guard." Dkt. 45 at 2–3 (Second Amd. Compl. ¶¶ 11–12). Her reports fell into three categories.

First , Clayton alleges that she reported the following instances of "misappropriation of funds ... [,] fraud, waste, and abuse," id. at 7 (Second Amd. Compl.), within the District government and the DCNG:

• the improper restoration of leave for Charlotte Clipper, the District Government Operations Human Resources Manager, id. (Second Amd. Compl. ¶ 49);

• the improper release of incentive awards to District of Columbia employees, id. at 8 (Second Amd. Compl. ¶¶ 55–56);

• the improper "steering" of a District of Columbia bus contract, id. (Second Amd. Compl. ¶ 57);

• the inappropriate co-mingling of DCNG youth leader camp § 501(c)(3) funds and District of Columbia local funds, id. (Second Amd. Compl. ¶ 58);

• the undisclosed federal and local tax withholdings of a federal security guard contract, id. (Second Amd. Compl. ¶ 59);

• the improper use of District of Columbia credit cards by employees on numerous occasions, id. (Second Amd. Compl. ¶ 60);

• the un-inventoried furniture and equipment purchases from 2007, id. at 9 (Second Amd. Compl. ¶ 64);

• the creation of two federal positions by the DCNG for the purpose of "transferring two employees from the District of Columbia budget to the federal budget," id. (Second Amd. Compl. ¶ 65); and

• the "potential United States security risks" posed by her predecessor, Anthony Devassey, who had "ordered and saved certain military research," id.

Aside from her allegations in the Second Amended Complaint, id. at 7–9 (Second Amd. Compl. ¶¶ 49–65), and her responses to the District's interrogatories, Dkt. 97-18 (Pl. Resp. to District's Interrogs.), however, Clayton has pointed to no additional evidence in her SMF to corroborate the above reports, see Dkt. 106 at 82–104.

Second , Clayton alleges that, in addition to the incident involving Charlotte Clipper described above, she attempted to terminate Clipper on numerous occasions for serious violations of the Division's policies, but that DCNG staff, "on behalf of [the] General[,] ... continuously attempted to block all proposed disciplinary action against ... Clipper." Dkt. 45 at 6–7 (Second Amd. Compl. ¶¶ 36, 37, 43). In support of her claim, Clayton's SMF cites to her own deposition testimony. See Dkt. 106 at 86 (Clayton SMF ¶ 22) (citing Dkt. 107-14 at 8–9 (Clayton Dep.) ). The DCNG disputes this assertion. It contends that the "DCNG, with the permission and coordination of the District, investigated all of ... Clayton's allegations and reported the findings to the District City Administrator for appropriate action." Dkt. 96-1 at 4 (DCNG SUMF ¶ 19) (citing Dkt. 96-24 (Ex. W) (Comentale Email to Forrest) (Aug. 14, 2008) ).

Third , and most significantly, Clayton reported Tamara Jones's...