Johnson v. Dist. of Columbia

JANNEASE JOHNSON, Plaintiff, v. DISTRICT OF COLUMBIA, et al., Defendants.

Civil Action No.: 20-2944 (RC)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

July 16, 2021

Re Document No.: 6, 10, 11

MEMORANDUM OPINION

DENYING DEFENDANTS' PARTIAL MOTION TO DISMISS AS MOOT; GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS; DENYING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

I. INTRODUCTION

This case concerns Plaintiff Jannease Johnson's allegations against Defendants the District of Columbia, Director of the D.C. Department of Corrections ("DOC") Quincy Booth, and Deputy Director of Operations of the DOC Wanda Patten, that she was demoted, reassigned, and fired from positions in the DOC due to disclosures and speech of hers concerning DOC's handling of the COVID-19 pandemic. Plaintiff alleges that she was retaliated against in violation of the D.C. Whistleblower Protection Act, D.C. Code §§ 1-615.51 et seq. ("DCWPA"), and the First Amendment under 42 U.S.C. § 1983. For the reasons set forth below, the Court denies as moot Defendants' Partial Motion to Dismiss, grants in part and denies in part Defendants' Motion to Dismiss, and denies Plaintiff's Motion for Partial Summary Judgment.

II. BACKGROUND

Plaintiff alleges that until the events that are the subject of this action, she was a Sergeant with DOC and the Executive Secretary of the Labor Committee of her union, the Fraternal Order of Police for D.C. Jail employees ("FOP"). Am. Compl. ¶ 1, ECF No. 7. The pandemic caused by COVID-19 began during her employment at DOC, with the first confirmed case of COVID-19 in the United States on January 21, 2020, the first COVID-19 death in the United States on February 29, 2020,¹ and the first confirmed case of COVID-19 in D.C. on March 7, 2020. Id. ¶¶ 16, 18, 20.

Plaintiff alleges that she, the FOP, and the FOP's lawyers at Hannon Law Group ("Hannon") took many steps to try and address what she felt were inadequate COVID-19 safety precautions in the D.C. Jail. Starting March 13, 2020, the FOP Labor Committee—including Plaintiff—began meeting daily with Hannon to "review DOC's response to the [COVID-19] emergency" and form a plan to protect the union members, which included sharing information about "D.C. Jail operations" with Hannon "to assess the danger of COVID-19 to Unit Members, inmates and the public." Id. ¶¶ 23-24. Plaintiff alleges that DOC leadership and Mayor Bowser were trying to keep DOC personnel "uninformed of the dangers associated with exposure to COVID-19 in the Jail so as not to impair operations of the Jail." Id. ¶¶ 25-27. On March 20, 2020, the Labor Committee held a vote of no confidence in Director of DOC Quincy Booth and Deputy Director of DOC Wanda Patten. Id. ¶ 28.

On March 25, 2020, Hannon sent a letter to Booth "outlining conditions at the Jail and listing those actions urgently requested by the FOP," which included information provided by Plaintiff. Id. ¶ 33. The letter cited problems such as lack of communication between DOC leaders and the Labor Committee, lack of COVID-19 screening for incoming inmates, and lack of personal protective equipment for correctional officers having "direct contact" with inmates. Id. Also on March 25, Plaintiff told Hannon that "at least two inmates had tested positive for COVID-19." Id. ¶ 35. Plaintiff alleges that having received no response by March 28, "theLabor Committee established Protocols for its membership based on CDC Guidance, and delivered them to DOC," and "urged members to refuse to comply with an order that violated these Protocols." Id. ¶ 36. Plaintiff alleges that as of March 29 there were five inmates known to have tested positive for COVID-19. Id. ¶ 37.

Upon learning that the Public Defender Service for the District of Columbia ("PDS") and the ACLU were filing suit regarding DOC's failure to protect inmates from COVID-19, the Labor Committee allegedly issued a press release in agreement, stating that DOC was not following Centers for Disease Control and Prevention guidance. Id. ¶¶ 41-42. The Labor Committee also held a "live-streamed" press conference on April 1, 2020, outside the D.C. Jail to announce that they had authorized Hannon to file an amicus brief in the PDS/ACLU suit (Banks v. Booth, No. 1:20-cv-849 (D.D.C. filed Mar. 30, 2020)). Id. ¶¶ 44-45, 49. Among the speakers at this press conference were J. Michael Hannon of the eponymous law firm, Plaintiff, and other FOP members. Id. ¶ 49. Plaintiff allegedly "spoke passionately about the failure of DOC to respond to COVID-19 in the Jail," including lack of testing, contact tracing, and reporting the number of employees testing positive. Id. She also criticized Booth for not visiting the Jail. Id. By April 8, the Jail's "official" count of positive-testing inmates was allegedly thirty-seven. Id. ¶ 50.

Plaintiff alleges that the Labor Committee, including Plaintiff, and Hannon lawyers spoke on April 11 with court-appointed amici in the PDS/ACLU suit, sharing information and documents about DOC's handling of COVID-19. Id. ¶ 52. On April 14, Hannon filed a class action lawsuit on behalf of the Labor Committee and its Chairman, Corporal Benjamin Olubasusi, in the Superior Court of the District of Columbia alleging that DOC failed to protect DOC personnel from COVID-19. Id. ¶ 54. Plaintiff provided a declaration in support of this suitbased on "her personal experiences in the Jail, and from the experiences of other Unit Members who, because she was a Union Officer, turned to her to report their concerns." Id. ¶ 55. Three FOP members newly tested positive for COVID-19 on April 22. Id. ¶ 57.

Plaintiff alleges that on the evening of April 22, 2020, "inmates rioted" in the Jail after not being allowed recreation time or showers for four days. Id. The next day, "an email reporting the incident was sent through the DOC Incident Notification Mailing List under the title 'Planned Use of Force.'" Id. ¶ 58. Plaintiff alleges that "[t]he email contained no medical information and was not marked confidential." Id. She forwarded this email to Hannon lawyers "as part of her ongoing work with the Labor Committee to collect information" about DOC's COVID-19 response. Id. ¶ 59. J. Michael Hannon provided the email to a reporter to "raise public awareness of the state of the Jail." Id. ¶ 60. The reporter then contacted a DOC official and referenced the Planned Use of Force email. Id. ¶ 61. Plaintiff subsequently gave an interview to the reporter on April 27 "to raise public awareness of the danger at the Jail," noting "that an FOP member had now died due to COVID-19," and the reporter published an article including a testimonial from Plaintiff on May 1. Id. ¶¶ 64, 67. The Labor Committee, including Plaintiff, and Hannon lawyers met again with the Banks amici on May 9 and shared additional documentation, including the Planned Use of Force email. Id. ¶ 69. During a bargaining session between FOP and DOC on May 12, a DOC Deputy Director allegedly asked, "how can we move forward when we have people going to the media." Id. ¶ 70. On May 22, Hannon filed the FOP's amicus brief in Banks, which allegedly relied in part on information provided by Plaintiff. Id. ¶ 72.

After the reporter referenced the Planned Use of Force email to the DOC official, DOC allegedly began an investigation into Plaintiff's "conduct in emailing to Mr. Hannon." Id. ¶ 61.Plaintiff alleges that she notified DOC of her April 27 interview in advance and that "[i]mmediately thereafter" she was reassigned and "demot[ed]" because of her "effectiveness at raising public concern." Id. ¶¶ 64-65. The stated reason for reassignment was that there was "a pending investigation into misconduct by [Plaintiff] wherein [she] allegedly released privileged information." Id. ¶ 65. On May 14, the DOC Office of Investigative Services allegedly completed the investigation into Plaintiff's alleged misconduct. Id. ¶ 71. The report stated that Plaintiff's transmission of emails to Hannon violated DOC policies and procedures, including the Health Insurance Portability and Accountability Act ("HIPAA"). Id.

On May 29, Deputy Director Patten allegedly proposed that Plaintiff be terminated from her position because Plaintiff forwarded certain emails to Hannon. Id. ¶ 73. Plaintiff alleges that in this proposal,

Patten intentionally failed to note that the offending emails were NOT marked confidential, under DOC policy or federal HIPAA regulations. Nor did she note that federal HIPAA regulations permit a Unit Member to forward otherwise confidential documents to an attorney under whistleblower law. Director Patten's distortion of the facts represents a reckless disregard for the rights of SGT. JOHNSON and the law.

Id. A hearing officer was appointed to review the proposed termination in accordance with the FOP's collective bargaining agreement. Id. ¶ 74. On June 30, the hearing officer recommended against disciplining Plaintiff in part because Plaintiff's disclosures to Hannon were protected by D.C. whistleblower law. Id. ¶ 75.

Booth responded in writing on July 20, allegedly including "new legal arguments not present in DOC's original submission." Id. ¶ 76. Booth allegedly focused on Plaintiff's supposed violation of HIPAA and "intentionally withheld" the fact that the emails were not "marked confidential under DOC polices or HIPAA regulations . . . in reckless disregard for the rights of [Plaintiff] and the law." Id. Booth allegedly then "remanded" the case for the hearingofficer's reconsideration. Id. On August 4, the hearing officer submitted new findings allegedly "adopt[ing] almost in its entirety Director Booth's updated arguments." Id. ¶ 79. The hearing officer concluded that even though Plaintiff's "disclosure of DOC email to" Hannon was permitted under 45 C.F.R. § 164.502(j), a whistleblower exception to HIPAA, Plaintiff's "forwarding the email through her attorneys to the media was not protected under the Whistleblower Protection Act," and Plain...