Clayton v. Dist. of Columbia

• Decision Date: 04 August 2015
• Docket Number: Civil Action No. 11–1889–RDM
• Citation: 117 F.Supp.3d 68
• Parties: Betty Clayton, Plaintiff, v. District of Columbia and District of Columbia National Guard, Defendants.
• Court: U.S. District Court — District of Columbia

117 F.Supp.3d 68

Betty Clayton, Plaintiff,

v.District of Columbia and District of Columbia National Guard, Defendants.

Civil Action No. 11–1889–RDM

United States District Court, District of Columbia.

Signed August 4, 2015

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

Chad Wayne Copeland, Douglas Stuart Rosenbloom, Derrick Wayne Grace, Office of the Attorney General for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

RANDOLPH D. MOSS, United States District Judge

Plaintiff Betty Clayton sues Defendants the District of Columbia ("the District" or "D.C.") and the District of Columbia National Guard ("DCNG"), alleging that her career civil service job was converted into a non-career position and that she was subsequently terminated, both in retaliation for reporting sexual harassment, mismanagement, waste and abuse at the DCNG. She also alleges that she was transferred to a non-career position and terminated because of her sex and, while still employed, was not accorded the same authority as her male predecessor. An earlier version of Plaintiff's complaint was dismissed in part, and she has since filed a Second Amended Complaint alleging claims under the D.C. Whistleblower Protection Act, the D.C. False Claims Act, D.C. common law, the Due Process clause of the Fifth Amendment, and Title VII.

Defendants now move to dismiss Plaintiff's Second Amended Complaint in part. The District moves to dismiss Plaintiff's due process and Title VII claims (Counts Five, Six and Seven), but not the remaining claims (Counts One through Four), Dkt. 47–1 at 12, and the DCNG moves to dismiss all of the claims brought against it (Counts Six and Seven), Dkt. 56–1 at 23. For the reasons explained below, the District's motion is GRANTED in part and DENIED in part, and the DCNG's motion is converted in part to a motion for summary judgment pursuant to Rule 12(d) and DENIED without prejudice.

I. BACKGROUND

According to the Second Amended Complaint (Dkt.45, "Complaint"), the allegations of which are taken as true for purposes of the pending motions to dismiss, Chalabi v. Hashemite Kingdom of Jordan, 543 F.3d 725, 726 (D.C.Cir.2008), Clayton was appointed Director of D.C. Government Operations at the DCNG around June of 2008. Dkt. 45 ¶ 5. One of her responsibilities in that position was to "investigate and discipline potential wrongdoing at the DCNG as well as [to] report fraud, waste and abuse." Id. ¶ 11. Clayton alleges that she did just that. Among other things, she asserts that she reported a sexual harassment complaint made by an administrative assistant against Major General Errol R. Schwartz, who was the Commanding General of the DCNG, to the D.C. Human Resources Equal Employment Opportunity Officer in April 2010. Dkt. 45 ¶¶ 14–21. Clayton also alleges that she repeatedly took action to report and discipline a District employee working at the DCNG for misuse of District resources and violations of District employment policies. Id. ¶¶ 22–48. She further alleges that she objected to or reported several other instances of misuse or mismanagement of District funds and property and other policy violations.Id. ¶¶ 49–64.

According to Clayton, DCNG officials responded to her reporting activities by threatening to remove her from her position. Clayton alleges that General Schwartz threatened her with termination of her employment on four occasions in 2009 and 2010. Dkt. 45 ¶ 68. On one of those occasions, Clayton claims that General Schwartz confronted her after she reported the sexual harassment allegation against him, threatened to terminate her employment, and stated " ‘we'll see who's sitting in that seat on October 1st.’ " Id. ¶ 69. Clayton also alleges that the DCNG "attempted to block all proposed disciplinary action" against a D.C. employee who worked at the DCNG and that she faced "threats of potential repercussions if she continued to investigate" that employee. Id. ¶ 37.

In May of 2010, Clayton alleges that the DCNG staff sought the advice of the D.C. Human Resources Department's General Counsel "regarding General Schwartz's administrative authority over the employees of the Government Operations Division," including Clayton. Id. ¶ 70. In an August 27, 2010 letter, D.C. Attorney General Peter Nickles offered his Office's views "on whether the Government Operations Division of the [DCNG] is a District of Columbia agency, and if so, whether the Commanding General ... can direct the agency head of that Division to initiate personnel actions against District employees who are assigned to work at the DCNG." Dkt. 56–3 at 2.¹ Among other things, he opined that "the Mayor of the District of Columbia exercises personnel authority over" the Government Operations Division of the DCNG. Dkt. 56–3 at 2. The letter also noted, however, that "according to the DCNG's organizational chart, it appear[ed] that the Director of the Government Operations Division," though "a District employee," was also in General Schwartz's "chain of command." Id. The opinion letter authorized General Schwartz to "confer with the Mayor" about personnel matters involving District employees that "rise to the level where it impacts the readiness of the National Guard," as well as to "participate in the hiring process" of Government Operations Division employees and to "discuss with District officials whether administrative action should be filed against an employee." Id. at 3. The letter, moreover, noted that "[a]s for matters that pertain exclusively to the National Guard," the Director of the Government Operations Division "has an informal, dotted-line relationship with the Commanding General." Id.

A month later, Clayton received a letter reclassifying her position. While she had previously been a member of D.C.'s Career Service, from which employees may not normally be terminated without cause (see D.C.Code § 1–608.01 ), she was reassigned to the Management Supervisory Service, from which employees may be terminated without cause (see D.C.Code § 1–609.54 ). Dkt. 45 ¶ 74. She was terminated without cause on October 26, 2010, effective November 11, 2010.

Clayton filed this lawsuit on October 26, 2011. In her initial complaint, she alleged violations of the D.C. Whistleblower Protection Act, D.C., Code § 1–615.51 et seq.and the D.C. False Claims Act, D.C.Code § 2–381 et seq. , common law wrongful termination, and due process violations. Clayton was granted leave to file an amended complaint that included additional factual allegations on May 15, 2012. On March 23, 2013, Judge Roberts (now Chief Judge) of this Court granted the DCNG's motion to dismiss for lack of subject matter jurisdiction and granted in part the District's motion to dismiss for failure to state a claim. Dkt. 34. Clayton moved for leave to file a Second Amended Complaint, which re-alleged her prior claims and added claims for retaliation and sex discrimination under Title VII of the Civil Rights Act of 1965, 42 U.S.C.2000e et seq. Dkt. 40. The Court granted the motion in part and denied it in part, allowing Clayton to re-plead her D.C. Whistleblower Protection Act and D.C. False Claims Act counts and her as-applied due process challenge to her reassignment and termination against the District but denying her leave to re-allege those claims that the Court had previously dismissed.

With respect to the Title VII claims that Clayton sought to add, the DCNG argued that the Court should deny her leave to assert those claims against it on the ground that the DCNG was purportedly not her employer and thus adding those claims would be futile. Dkt. 43 at 1. The Court disagreed, holding that the DCNG had failed "to carry its burden of proving that it would be futile to allow Clayton to amend her complaint by adding Title VII claims." Dkt. 44 at 10.

On December 5, 2013, the District moved to dismiss Clayton's Title VII claims, as well as her as-applied due process claim.² Dkt. 47. On February 24, 2014, the DCNG moved to dismiss all of the claims against it for lack of subject matter jurisdiction and for failure to state a claim. Dkt. 56. Among other issues, the DCNG argues that Clayton failed to exhaust administrative remedies against the federal government. In considering this issue, the Court concluded that the exhaustion defense might raise factual issues better considered on summary judgment, and, accordingly, directed that the parties submit supplemental briefs and additional materials relevant to that defense. Supplemental briefing on this issue was completed on April 9, 2015. Dkt. 69.

II. LEGAL STANDARD

On a motion to dismiss for failure to state a claim, the Court must "treat ‘the complaint's factual allegations as true’ " and must grant Plaintiffs " ‘the benefit of all inferences that can be derived from the facts alleged.’ " Brown v. Whole Foods Mkt. Grp. , Inc., 789 F.3d 146, 151 (D.C.Cir.2015) (citation omitted). Although "detailed factual allegations" are not necessary, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929, "a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’ " Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955 ). The Court need not accept as true either a "legal conclusion couched as a factual allegation" or an inference drawn by the plaintiff if such inference is unsupported by the facts set out in the complaint. Trudeau v. FTC, 456 F.3d 178, 193 (D.C.Cir.2006) (citations and internal quotation marks omitted). The Court may consider "the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice." Gustave–Schmidt v. Chao, 226 F.Supp.2d 191, 196 (D.D.C.2002) (citation omitted).

On a motion to dismiss for lack of subject matter...