Hicks v. Dist. of Columbia

• Decision Date: 30 March 2018
• Docket Number: Civil Action No. 15–1828 (CKK)
• Citation: 306 F.Supp.3d 131
• Parties: Paul HICKS, Plaintiff, v. DISTRICT OF COLUMBIA, Defendant.
• Court: U.S. District Court — District of Columbia

306 F.Supp.3d 131

Paul HICKS, Plaintiff,

v.DISTRICT OF COLUMBIA, Defendant.

Civil Action No. 15–1828 (CKK)

United States District Court, District of Columbia.

Signed March 30, 2018

Jeffrey J. Sadri, Pro Hac Vice, Paul V. Bennett, Bennett and Ellison, P.C., Annapolis, MD, for Plaintiff.

Alex Karpinski, Ali Naini, Cara J. Spencer, Office of the Attorney General for the District of Columbia, Washington, DC, Tram T. Pham, Douglas & Boykin, PLLC, Washington, DC, for Defendant.

MEMORANDUM OPINION

COLLEEN KOLLAR–KOTELLY, United States District Judge

Plaintiff Paul Hicks is an African American who was in his mid-sixties when Defendant District of Columbia terminated his job as Director of Medicaid Audits in the Office of the Inspector General. He does not accept Defendant's argument that he was fired because of alleged poor performance. Rather, Plaintiff argues that his dismissal was attributable to his race, his age, and retaliation for his insistence that Defendant comply with certain alleged reporting obligations for Defendant's alleged violations of Medicaid regulations.

Defendant presently seeks summary judgment as to all of Plaintiff's claims. Upon consideration of the briefing and evidence,¹ the relevant legal authorities, and the record as a whole, the Court GRANTS–IN–PART and DENIES–IN–PART Defendant's Motion for Summary Judgment, ECF No. 32.² The Court grants summary judgment to Defendant on Plaintiff's retaliation claims under the District of Columbia Whistleblower Protection Act, D.C. Code §§ 1–615.51 et seq. (2017), federal False Claims Act, 31 U.S.C. §§ 3729 et seq. (2016), and District of Columbia False Claims Act, D.C. Code §§ 2–381.01 et seq. (2017). The jury must decide Plaintiff's claims of age discrimination under the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 621 et seq. (2016), and of racial discrimination under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. (2016).

The Court also shall address a motion buried within Plaintiff's Opposition papers. With Defendant's consent, the Court GRANTS Plaintiff's Motion to Seal Certain Exhibits Which Accompany Defendant's Motion and Plaintiff's Opposition Thereto, ECF No. 33–5. Defendant's Exhibits 1, 3, 4, 5, and 9 attached to Defendant's Motion for Summary Judgment, ECF No. 32, shall be placed under seal pursuant to the parties' Protective Order, ECF No. 28. Plaintiff's Exhibits B, D, K, L, M, N, O, T, and aa, which accompany his Opposition to Defendant's Motion for Summary Judgment, ECF No. 33, also shall be placed under seal pursuant to the parties' Protective Order. The parties are reminded that documents subject to the parties' Protective Order must be filed in accordance with Local Civil Rule 5.1(h) and Paragraph 17 of that Protective Order in order to receive the benefit of sealing during the pendency of any motion to seal.

I. BACKGROUND

A. Factual Background

The Court identified many of the facts of this matter when it decided Defendant's motion to dismiss Plaintiff's claims under the federal False Claims Act and District of Columbia False Claims Act. See Mem. Op. and Order, ECF No. 19, at 6–9. The Court presently shall set forth certain material facts that are supported by uncontroverted evidence now in the record.³ Further facts, many of which are disputed, shall be addressed as necessary in pertinent portions of this Memorandum Opinion.

Plaintiff served as an auditor in the District of Columbia's Office of the Inspector General ("OIG"). Pl.'s Ex. K, ECF No. 33–16, at 1.⁴ On September 27, 2010, OIG offered Plaintiff a promotion to Director of Medicaid Audits, an at-will position within OIG's Management Supervisory Service, and Plaintiff accepted the following day. Def.'s Initial Stmt. ¶¶ 1–2. While Director of Medicaid Audits, Plaintiff's job description included, inter alia , "scheduling and completing performance audits, estimating workloads and capability of staff, ... [and] making adjustments in staff and workload to meet firm deadlines for special projects." Id. ¶ 3; Def.'s Ex. 2, ECF No. 32–4, at 064. He served in that position until August 15, 2014. See Def.'s Ex. 9, ECF No. 32–4, at 013.

Plaintiff was assigned the "Medicaid State Plan/Program Integrity" audit in September 2012. Def.'s Initial Stmt. ¶ 23. Among other audit reports for which Plaintiff was responsible during his employment was the "Nursing Home Performance and Administrative Salaries" audit. Pl.'s Stmt. ¶ 39; Pl.'s Ex. G, ECF No. 33–12, at 1 (citing various audits for which Plaintiff was director).

On September 15, 2013, Defendant provided Plaintiff with an annual performance evaluation for the period October 2, 2012, through September 30, 2013.⁵ Def.'s Initial Stmt. ¶ 4; Def.'s Ex. 3, ECF No. 32–4. Notwithstanding the parties' competing interpretations of this evaluation, it is clear that some language is complimentary of Plaintiff's performance and other language is critical of his performance. See generally Def.'s Ex. 3, ECF No. 32–4. In addition to ratings in specific areas, the review gave Plaintiff an "Overall Summary" rating of "3 Valued Performer," specifically 3.15 out of 5.00. Id. at 049; Def.'s Initial Stmt. ¶ 9. The review also noted that "[d]uring this rating period at the Mid–Year period [Plaintiff] was operating in a satisfactory manner." Def.'s Ex. 3, ECF No. 32–4, at 049. The record contains a second version of this report showing Plaintiff's signature and a handwritten indication that it was "[r]eviewed and [a]cknowledged" on December 30, 2013. Def.'s Ex. 4, ECF No. 32–4, at 041; see also Def.'s Initial Stmt. ¶ 10 (making uncontested point that he read and signed evaluation).

In an April 2013 debrief regarding the Medicaid State Plan/Program Integrity audit, upper-level management and Plaintiff discussed the fact that Medicaid payments had not been suspended to certain healthcare providers who were under investigation for fraudulent activity by Defendant's Medicaid Fraud Control Unit ("MFCU"). Pl.'s Stmt. ¶ 29. Management disagreed with Plaintiff's assertion that this fact should be included in his audit report. Id. ; Def.'s Reply Stmt. ¶ 29.

In October 2013, an employee of Defendant's Department of Healthcare Finance ("DHCF") emailed Plaintiff a list of providers whom DHCF had referred to MFCU for investigation but to whom payments were not suspended.⁶ Def.'s Initial Stmt.

¶ 24. Also in October 2013, Plaintiff discussed with Ron King, Assistant Inspector General for Audits ("AIGA"), Plaintiff's belief that Medicaid payments to healthcare providers under investigation by MFCU should have been suspended. Pl.'s Stmt. ¶ 30; Def.'s Reply Stmt. ¶ 30. Plaintiff also discussed the payment non-suspension issue during meetings on October 21 & 22, 2013, and on December 2, 2013, with Susan Kennedy, Assistant Inspector General for the MFCU. Pl.'s Stmt. ¶ 32; Dep. of Paul Hicks at 84:9–12, Pl.'s Ex. E, ECF No. 33–10. At least one of those meetings included Mr. King, who voiced his concern with the inclusion of the payment non-suspension issue in the Medicaid State Plan/Program Integrity audit report. Pl.'s Stmt. ¶ 32.

The record contains a December 13, 2013, letter from Charles Willoughby, the District of Columbia Inspector General ("IG"), to Wayne Turnage, the Director of the DHCF, "to inform [the latter] of a serious concern that Susan Kennedy, Director of the Medicaid Fraud Control Unit (MFCU), has brought to my attention about suspension of Medicaid providers after they have been referred to the MFCU for investigation." Def.'s Ex. 13, ECF No. 32–4, at 0482. Mr. Willoughby reported Ms. Kennedy's finding "from DHCF personnel that no providers referred by DHCF to the MFCU in FY 2013 have had payments suspended." Id. at 0483. The letter also discusses federal Medicaid regulations regarding payment suspension and DHCF's efforts pursuant to a "good cause" exception therein. Id. Non-suspension was particularly concerning, the IG wrote, because of a January 2013 "CMS Comprehensive Program Integrity Review Draft Report" that documented the District of Columbia's failure "to suspend $59 million in payments for providers referred to the Medicaid Fraud Control Unit ("MFCU") for investigation."Id. at 3 (internal quotation marks omitted).⁷

During the first quarter of 2014, Plaintiff again discussed the payment non-suspension issue with OIG officials, first on March 11, 2014, during the "AIGA's Weekly Directors' Meeting," and then on April 10, 2014, in a meeting that included Mr. King and LaDonia Wilkins, Deputy AIGA.⁸ Id. ¶¶ 33–34; see also Pl.'s Ex. U, ECF No. 33–26, at 1 (referring to Ms. Wilkins as "DAIGA"). Discussion at these meetings also included the Medicaid State Plan/Program Integrity audit report. Pl.'s Stmt. ¶¶ 33–34. Mr. King directed Plaintiff to remove the payment non-suspension issue from the draft Medicaid State Plan/Program Integrity audit report. Pl.'s Stmt. ¶ 34; Def.'s Reply Stmt. ¶ 34. Plaintiff argued during at least one meeting with Mr. King that the Government Accountability Office's ("GAO") Government Auditing Standards and 42 C.F.R. § 455.23 dictated that the payment non-suspension issue should be included in the Medicaid State Plan/Program Integrity audit report. Pl.'s Stmt. ¶ 35; Def.'s Reply Stmt. ¶ 35. Mr. King disagreed that the cited C.F.R. provision was applicable. Pl.'s Stmt. ¶ 35; Def.'s Reply Stmt. ¶ 35.

On May 16, 2014, Mr. King issued a memorandum that revoked Plaintiff's alternative work schedule ("AWS"), effective May 19, 2014. Def.'s Initial Stmt. ¶ 11; Def.'s Ex. 5, ECF No. 32–4, at 020.⁹ The memorandum stated that "Paul Hicks has been rated in his mid term [sic] performance review as unsatisfactory based on 5 audit reports that have been long term in process and are required to be issued by September 30, 2014." Def.'s Ex. 5, ECF No. 32–4, at 020.

On approximately June 3, 2014, a draft Medicaid State Plan/Program Integrity audit report was submitted to Ms. Wilkins. Pl.'s Stmt. ¶ 37. A draft...