Lewis v. Gov't of the D.C.

282 F.Supp.3d 169

Patricia D. LEWIS, Plaintiff,

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

Civil Action No. 15–521 (JEB)

United States District Court, District of Columbia.

Signed October 18, 2017

Adam C. Bonner, Charles A. Bonner, Bonner & Bonner, Sausalito, CA, Joseph A. Scrofano, Scrofano Law PC, Washington, DC, for Plaintiff.

Fernando Amarillas, Conrad Z. Risher, Office of the Attorney General for the District of Columbia, Washington, DC, Charles Theodore Tucker, Jr., Tucker Law Group LLP, Brandywine, MD, for Defendants.

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge

In response to an Order from then–Mayor Vincent Gray, the D.C. Department of Human Resources determined that all Office of Chief Medical Examiner employees would be subject to random drug and alcohol testing upon relocation to the new Consolidated Forensic Laboratory building. Plaintiff Patricia Lewis, a former OCME employee, objected and was ultimately terminated in April 2013. She responded with this suit alleging a host of constitutional and common-law claims against the District and several individual officials. Deciding earlier Motions to Dismiss, the Court narrowed both the claims and the number of Defendants. Following discovery, both sides have now filed Cross–Motions for Summary Judgment on the remaining counts. As genuine issues of material facts loom on some, the Court will deny the Motions in part, but enter judgment for Defendants on two causes of action.

I. Background

Because both sides have filed Cross–Motions, the facts cannot be set forth in the light most favorable to the non-moving party. As a result, the Court recounts the undisputed facts, while noting specific disagreements about others.

A. Factual History

For the better part of a decade, Lewis worked as a "[Human Resources] Advisor, Management Liaison Specialist" in D.C.'s Office of Chief Medical Examiner. See ECF No. 7 (Am. Compl.), ¶ 20. OCME's duties include autopsies as well as other forensic and medico-legal investigations. See generally D.C. Code § 5–1401 et seq. From the time she was hired until October 2012, OCME was located in an office building on Massachusetts Avenue in Southeast Washington. See Am. Compl., ¶ 24.

At some point, the city undertook a plan to design and construct the Consolidated Forensic Laboratory. This new laboratory would house under one roof a number of city departments, including OCME, the Department of Forensic Sciences, and several divisions of the Metropolitan Police Department, such as the Firearms and Fingerprint Examination Division, the DNA laboratory, and the Forensic Sciences Services Division. See D.C. Council Resolution No. 19–726 § 2(b) (Dec. 4, 2012). On June 18, 2012, Mayor Gray signed Order 2012–84, providing authority for the Director of the D.C. Department of Human Resources to "identify[ ] and designat[e] high-risk or sensitive positions" for employees who would have a duty station at the CFL. See Def. MSJ, Exh. C (Mayor's Order) at 1. Employees so designated would be subject to "background checks, investigations, mandatory criminal background checks, and[/or] testing for controlled substance use." Id.

On July 18, 2012, Charles Tucker, DCHR General Counsel, and other members of his department held a meeting at OCME and distributed letters informing the staff that the office would be moving to the CFL. Pursuant to the Mayor's Order, the letter advised that, "due to the nature of work performed in the CFL, employees occupying positions which have duty stations" there would be "subject to mandatory criminal background checks and testing for controlled substance use." Def. MSJ, Exh. E (Letter from DCHR Director Shawn Stokes to Lewis). The letter indicated that recipients could contact Plaintiff, the agency's HR Advisor, for additional information, and it directed policy-related questions to DCHR's Legal and Compliance Administration. Id.

At the meeting, DCHR also distributed several forms, including an "Individual Notification of Requirements Form for Drug and Alcohol Testing." Def MSJ, Exh. G at 1 (Notice and Acknowledgment Form). Citing the Mayor's Order, it stated:

[T]his notice informs you that you have been appointed to, or you currently occupy, either as an employee or volunteer, a covered position that makes you subject to drug and alcohol testing while assigned. Covered positions include protection-sensitive positions that affect the health, safety and welfare of the general public.... As an appointee, employee, or unsupervised volunteer in a covered position at a District government agency, you are hereby informed that this District agency is subject to drug and alcohol testing. Thirty (30) days after you acknowledge receipt of this advance written notice, you will be subject to drug and alcohol testing, unless you acknowledge a drug or alcohol problem during the 30–day notification period.

Id. The bottom portion of the notice, titled "Acknowledgement of Receipt," required the employee's signature, which would be an admission that she "currently occup[ied] a protection-sensitive position that is subject to drug and alcohol testing." Id. Plaintiff voiced her objections to the policy at the meeting and refused to sign the form. See Def. Statement of Facts, ¶ 33. So concludes the facts from that day upon which the parties agree.

Plaintiff's version of the meeting is as follows. According to her, Tucker "rude[ly]" descended upon the OCME staff, informing them of the move to the CFL and the resulting requirement "to undergo a background check and drug testing." Pl. SOF, ¶ 12. He told them that they had until 4:00 p.m. to sign and return the forms or they would be fired. Id., ¶ 14. Several employees, including Lewis, were taken aback by the request. Id., ¶¶ 39–42. Lewis "raised her hand and asked questions in a way that was neither belligerent nor impolite." Id., ¶ 29. She questioned why she would need to undergo such testing when her job responsibilities would not change once she moved to the CFL. See Pl. Reply, Attach. 2 (Declaration of Patricia Lewis), ¶ 14.

Defendants dispute nearly all of Lewis's account. According to them, Tucker held the meeting to inform OCME staff about the move to the CFL and the accompanying drug-and-alcohol-testing requirements. He did not give an ultimatum or tell anyone that they would have to undergo drug and alcohol testing, but merely informed them that they would be subject to substance testing "as a condition of relocating to the CFL." Def. SOF, ¶ 12. Tucker denies that he was anything other than the "messenger," sent to "carry out a mayor's directive." Pl. MSJ, Exh. 1 (Deposition of Charles Tucker) at 46:22. Defendants aver that employees were asked to sign the acknowledgment form without any time pressure, at which point Lewis "belligerent[ly]" and "disrespectful[ly]" voiced her objection to the Mayor's Order. See Def. SOF, ¶ 29.

Two days after the meeting, Plaintiff sent a grievance letter to Tucker protesting the policy and claiming that he was "violating [her] rights to be made aware of any change in working conditions and conditions of employment." Def. MSJ, Exh. H (July 20 Letter from Lewis to Tucker) at 1. Lewis stated that she "was hired into a non-sensitive position that has not been re-classified nor designated as high risk" and would not sign the acknowledgment form until DCHR conducted a "reclassification and risk assessment." Id. She further alleged that her direct supervisor, Beverly Fields, retaliated against her for speaking up at the meeting. Id. at 2. Plaintiff acknowledged that she had "asked a lot of questions in the meeting," but attributed her inquisitiveness to surprise. Id. at 2. "As the agency's HR Advisor," Lewis noted that she "might have taken a different approach if [she] had prior knowledge or involvement in this process." Id. She lamented that "no one at this agency nor the DC DCHR ha[d] involved [her] in any way about this relocation and the requirements that would be imposed," despite the fact that her "name was included in every employee's letter as being the point of contact." Id. Plaintiff maintained that she "had every right to protect [her] own best interests" and that the Agency as a whole was "caught totally off guard by this process." Id. On August 30, 2012, Tucker denied the grievance as unauthorized by the District Personnel Manual. See Def. MSJ, Exh. I.

In October 2012, DCHR Director Shawn Stokes sent Lewis two follow-up notices, requesting that she sign and return the notice-and-acknowledgment forms, but Plaintiff refused to do so. See Def. Exhs. J–K. The notices further advised that "corrective and/or adverse action" could result if she did not "comply with this process" by November 8, 2012. In late October, OCME moved to the CFL. See Def. MSJ, Exh. J (Notification of Relocation to CFL). On October 23, Lewis attempted to move some of her files into the CFL but was escorted out of the building. See Def. SOF, ¶ 69. She alleges that she had supervisor approval to move, but Defendants maintain that she was not cleared to enter the building because she had still not signed the acknowledgment forms. See Pl. SOF, ¶¶ 69, 84; Def. MSJ, Exh. K (October 23, 2012, Letter from Stokes to Lewis). While the rest of the OCME staff moved to the CFL, Lewis thus remained alone at the Massachusetts Avenue building. The parties disagree as to her working conditions there but, suffice it to say, they were not ideal. The building was old and had issues with the heat, elevators, and phones. See Def. SOF, ¶¶ 44, 46–47. Plaintiff nonetheless continued to work there until she received an Advance Written Notice of Proposed Removal on January 3, 2013, when she was placed on administrative leave.

See Def. MSJ, Exh. L; Def. SOF, ¶ 83. The letter charged her with "neglect of duty and insubordination" on three occasions: (1) refusing to sign the notice-and-acknowledgment forms on July 18; (2) refusing to sign the forms after the October follow-up...