Da'Vage v. Dist. of Columbia Hous. Auth.
| Citation | 583 F.Supp.3d 226 |
| Decision Date | 28 January 2022 |
| Docket Number | Civil Action No. 21-1318 (RDM) |
| Parties | Gerald D. DA’VAGE, Plaintiff, v. DISTRICT OF COLUMBIA HOUSING AUTHORITY, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Gerald D. Da'Vage, District Heights, MD, Pro Se.
Frederick Arnold Douglas, Douglas & Boykin PLLC, Washington, DC, for Defendants District of Columbia Housing Authority, Ronald McCoy, Paulette Campbell, Ronnie Thaxton.
Plaintiff Gerald Da'Vage, proceeding pro se , brings this wrongful termination action against the District of Columbia Housing Authority ("DCHA"), several DCHA officials, and the president of the union that represents DCHA employees, Miranda Gillis. Dkt. 1.1 Da'Vage alleges that he was a for-cause employee of DCHA but that (1) he was denied due process when he resigned under duress in the midst of a "gravely unfair investigation" into his conduct, id. at 6 (Compl. ¶ 3), and (2) Gillis did not adequately represent his interests during that investigation, id. at 17–18 (Compl. ¶¶ 55–57). He brings this suit under 42 U.S.C. § 1983 to collect back pay and other damages. Id. at 32 (Compl. ¶ 108).
DCHA and the two of the three named DCHA defendants move to dismiss, Dkt. 12, as does Gillis, Dkt. 15.2 For the reasons that follow, the Court will DENY the DCHA defendants’ motion to dismiss and GRANT Gillis's motion to dismiss.
Both the DCHA defendants and Gillis move to dismiss Da'Vage’s complaint for failure to state a claim. See Dkt. 12; Dkt. 15.3 For purposes of evaluating those motions, the following allegations, which are taken from Da'Vage’s complaint, are accepted as true. See Am. Nat'l Ins. Co. v. FDIC , 642 F.3d 1137, 1139 (D.C. Cir. 2011). The Court will also consider the "affidavits," including one from Gillis and one from a named DCHA defendant, Ronnie Thaxton, see Dkt. 1-1,4 that Da'Vage attached to his complaint, see EEOC v. St. Francis Xavier Parochial Sch. , 117 F.3d 621, 624 (D.C. Cir. 1997) ().
Da'Vage worked as a construction and housing inspector for DCHA for roughly ten years. See Dkt. 1 at 12, 31 (Compl. ¶¶ 29, 103). Although the complaint is not entirely clear on this point, it appears that the events underlying the current dispute began when DCHA opened an investigation in late 2017 into allegations of "unauthorized gas card usage" by Da'Vage during his time with DCHA. Id. at 7 (Compl. ¶ 8). According to Gillis's "affidavit," this investigation began in November 2017 because the gas card in question "was shown to have expenditures far exceeding the expenditures on other cards that had been issued to other employees and [because] some of the purchases had been made after work hours." Dkt. 1-1 at 1 (Gillis Aff. ¶ 1). Da'Vage learned of this investigation on Thursday, December 14, 2017, when his immediate manager "questioned [him] about unauthorized gas card usage." Dkt. 1 at 7 (Compl. ¶ 8); see also id. at 33 (Da'Vage Aff. ¶ 1).
Five days later, on Tuesday, December 19, 2017, Da'Vage met with DCHA's human resources department regarding the accusations against him. Id. at 8–9 (Compl. ¶¶ 10–12). A union representative—DCHA's "union shop steward"—accompanied Da'Vage to this meeting. Id. at 33 (Da'Vage Aff. ¶¶ 4-5). Da'Vage wanted to introduce "receipts ... to show similar purchase activity ... [by] similarly situated individuals," id. at 33 (Da'Vage Aff. ¶ 2), but the union representative declined to do so, because the investigation focused on Da'Vage’s conduct, rather than other employees’ conduct, id. at 8 (Compl. ¶¶ 12–13). Neither the union representative nor the DCHA employee who conducted the meeting advised Da'Vage "of his right to retain private counsel," according to the complaint. Id. at 8–9 (Compl. ¶¶ 14–15).
Later that same day, Gillis—the president of Da'Vage’s union—called Da'Vage to inform him that DCHA intended to "serve termination papers" on him. Id. at 10 (Compl. ¶ 19). Prior to this call, she had spoken with DCHA's labor and employee relations manager, Ronnie Thaxton. Dkt. 1-1 at 1 (Gillis Aff. ¶ 3). Thaxton told her that "the investigation had concluded" and that DCHA "would be issuing ... a notice of termination" that Friday, December 22, 2017. Id. This decision was based, Thaxton explained, on "the findings of the investigation ... coupled with the fact" that Da'Vage had been suspended for "[d]ishonesty" for three days on November 3, 2017, "for driving [a] government vehicle in Maryland and having an unauthorized passenger in the vehicle." Id.
When relaying this information to Da'Vage, Gillis explained that if he did not immediately resign, he would be subject to a 30-day, unpaid administrative suspension "pending a criminal investigation." Dkt. 1 at 10 (Compl. ¶ 19). The criminal investigation, Gillis continued, might result in a criminal prosecution and a term of imprisonment, which would impact his pension and retirement benefits, his health and life insurance benefits, his ability to collect unemployment payments, and his further job prospects. Id. But if Da'Vage resigned immediately, Gillis told him, he would receive "30-days paid administrative leave and a clear HR file," which would enable Da'Vage to "get another government job." Id. According to Gillis's "affidavit," however, "[a]t no time did [she] tell Mr. [Da'Vage] that Mr. Thaxton informed me that the agency was pursuing criminal charges," and "[a]t no time did [she] tell Mr. Da'Vage that he would be placed on unpaid administrative leave." Dkt. 1-1 at 2 (Gillis Aff. ¶ 4). Instead, Gillis states that she informed Da'Vage only that "any unauthorized use of the card is theft and that depending on the amount the agency had the right to pursue criminal charges." Id. Thaxton's affidavit similarly asserts that he "did not inform Mr. Da'Vage’s union representative[ ] that Mr. Da'Vage would be terminated ... if he did not resign immediately, [ ]or that DCHA was considering criminal prosecution of Mr. Da'Vage." Id. at 4 (Thaxton Aff. ¶ 9).
Regardless of the precise contents of this conversation, according to the complaint, Da'Vage spent the next day and a half "attempt[ing] to [obtain] information from HR and Payroll Office about the financial consequences of [his] rapidly approaching decision." Dkt. 1 at 10–11 (Compl. ¶¶ 21). When Da'Vage attempted to stop by the office on the afternoon of December 19, however, he discovered the office had closed for the day, and when he returned the next morning, the office was again closed, this time "for its ‘Christmas Party.’ " Id. at 10–11 (Compl. ¶¶ 21–22).
Gillis called him again on Thursday, December 21, 2017. Gillis warned him that, "[i]f you do not go to the office today and turn in your resignation letter, HR will start to charge you your earned leave and may even withdraw [the] resignation offer and initiate a criminal investigation." Id. at 11 (Compl. ¶ 23). She briefly got off the phone to consult with Thaxton "to see what other options were available," only to report that, according to Thaxton, DCHA's Office of General Counsel indicated that the agency "was firm in its decision" and that Da'Vage would receive his termination letter the very next day. Id. (Compl. ¶ 24). According Gillis, she also told him "that if he was not guilty[,] do not resign" because "the union will do whatever it needs to do," and she explained that if he would like to resign, "he had to do it prior to the issuance of the notice [of termination] if he did not want the discipline in his folder" and if he wanted to receive 30 days of medical benefits. Dkt. 1-1 at 2 (Gillis Aff. ¶ 6).
Da'Vage indicated that he wished to resign. Dkt. 1 at 12 (Compl. ¶ 26). Gillis did not, however, inform Da'Vage that "resignation ... would preclude administrative appeal." Id. at 11–12 (Compl. ¶ 25). Da'Vage told Gillis that "he did not know how to write a resignation letter," and so Gillis arranged for a union representative to draft Da'Vage’’s resignation letter, which Da'Vage signed and delivered to the human resources department. Id. at 11–12 (Compl. ¶¶ 26–28). Neither the union representative nor the human resources department, however, informed Da'Vage that resignation "would preclude the filing of an administrative appeal." Id. (Compl. ¶¶ 27–28). According to Gillis, Da'Vage continued to receive pay until his resignation became effective on January 19, 2018. Dkt. 1-1 at 2 (Gillis Aff. ¶ 7).
Da'Vage, proceeding pro se , filed this action on May 5, 2021. Brought under 42 U.S.C. § 1983, the suit seeks "full back pay and full benefits back pay with interest," along with compensatory and punitive damages. Id. at 7, 32 (Compl. ¶¶ 6, 108).
The crux of Da'Vage’s complaint against DCHA and the other named DCHA defendants is that he was entitled to further process during the investigation of his alleged misconduct, but that no DCHA official ever apprised him of these rights. Da'Vage alleges, for example, that Paulette Campbell, DCHA's director of human resources, "knew or reasonabl[y] should have known that Plaintiff did not receive minimal Due Process protections" and that Ronald McCoy, a direct supervisor who oversaw his immediate manager, either knew or "should have known" that Da'Vage never received "advanced written notice"—presumably, of the charges against him, although the complaint does not specify—or an "opportunity to be heard after receiving advanced written notice or pretermination hearing results." Id. at 13–14 (Compl. ¶¶ 32–34, 38). Da'Vage further alleges that Ronnie Thaxton, DCHA's labor and employee relations manager, (1) "did not advise Plaintiff of his right to retain private counsel" during the investigation; (2)...
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