Payne v. Dist. of D.C.

• Decision Date: 29 September 2010
• Docket Number: Civil Action No. 08–163 (CKK).
• Citation: 741 F.Supp.2d 196
• Parties: Audrick PAYNE, Plaintiff,v.DISTRICT OF COLUMBIA, et al., Defendants.
• Court: U.S. District Court — District of Columbia

741 F.Supp.2d 196

Audrick PAYNE, Plaintiff,

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

Civil Action No. 08–163 (CKK).

United States District Court, District of Columbia.

Sept. 29, 2010.

David A. Branch, Law Office of David A. Branch and Associates, PLLC, Washington, DC, for Plaintiff.Kerslyn D. Featherstone, Office of the Attorney General for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

COLLEEN KOLLAR–KOTELLY, District Judge.

Plaintiff Audrick Payne, a former elevator inspector with the District of Columbia Department of Consumer and Regulatory Affairs (“DCRA”), brings this suit against the District of Columbia, three former directors of DCRA (Linda Argo, Lisa Morgan, and Patrick Canavan), and a supervisor at DCRA (Nicholas Majett) (collectively, “Defendants”), contending that he was unlawfully terminated from his job because he spoke out publicly about elevator safety and vigorously enforced elevator safety standards. This Court previously granted Defendants' motions to dismiss Counts VI, VII, VIII, and IX of the Amended Complaint for failure to exhaust administrative remedies. See [34] Order, 592 F.Supp.2d 29 (D.D.C.2008). The remaining pending counts assert violations of the D.C. Whistleblower Protection Act, D.C. Code §§ 1–615.51 et seq. (Count I), and, by way of 42 U.S.C. § 1983, the First Amendment to the U.S. Constitution (Counts II, V), and the Due Process Clause of the Fifth Amendment to the U.S. Constitution (Counts III–IV). Presently pending before the Court is Defendants' [47] Motion for Judgment on the Pleadings and [45] for Summary Judgment, as well as Plaintiff's [54] Motion for Leave to File Surreply.

For the reasons explained below, the Court shall grant Defendants' [47] Motion for Judgment on the Pleadings and for Summary Judgment on the remaining counts in the Amended Complaint and deny Plaintiff's [54] Motion for Leave to File Surreply.

I. BACKGROUND

Plaintiff Audrick Payne (“Payne”) was employed as an elevator inspector with DCRA beginning on September 4, 2001. Pl.'s Stmt.¹ ¶ 1. Shortly after he started his job at DCRA, Payne became dismayed at the state of elevator safety in the District of Columbia. According to Payne, he inspected elevators that were more than twenty years overdue for inspection. See Pl.'s Opp'n, Ex. A (Arbitration Hr'g Tr.) at 1195–99. Payne also found a number of violations which he deemed to be serious safety hazards. For example, in May 2004, ² Payne was called to the scene of an elevator accident where a woman's body had been found in the elevator pit. Id. at 1223–26. Payne wrote up a number of violations at the site, but he was criticized by his supervisor. Id. at 1226–28. Around January or February 2005, there was a fire at a housing complex at Devonshire Place in which a 75–year old woman died. Id. at 1230. Payne had previously found a fire alarm violation at that complex, and third-party, i.e., non-DCRA inspectors had been responsible for following up and ensuring compliance at the complex. Id. at 1230–31. Based on this and other experiences, Payne was critical of the practice of allowing third-party inspectors to be responsible for maintaining elevator safety in the District of Columbia. The third-party inspection program had been created by the District of Columbia in 2001 to expedite elevator inspections by allowing qualified contractors to perform inspections. See Defs.' Mem., Ex. 4 (Final Investigation Report) at 2.

In February 2005, Payne testified before the Council of the District of Columbia (“D.C. Council”) at a DCRA oversight hearing. Defs.' Stmt. ¶ 2. ³ Payne testified during his deposition that he received a notice from DCRA management informing him that he was needed to testify before a committee managed by D.C. Councilmember Jim Graham. See Defs.' Mem., Ex. 1 (Payne Dep.) at 71. Although the content of Payne's testimony is not in the record, Payne has explained that he testified about the state of elevator safety in the District of Columbia. See id. at 73. Payne also testified about the need for additional staff, supplies, safety equipment, and the incident involving the fire at Devonshire Place. Id. at 81–88.

Around August 2005, the District of Columbia Office of the Inspector General (“OIG”) began an investigation into Payne. Pl.'s Stmt. ¶ 18. The investigation was predicated on a referral from DCRA Director Patrick Canavan, who had heard from a former DCRA Chief of Staff that there were allegations from members of the Apartment and Office Building Association (AOBA) that Payne had solicited work as a third-party inspector for his private consulting business while on official duty as a DCRA elevator inspector. See Defs.' Mem., Ex. 4 (Final Investigation Report) at 1. During the course of the investigation, it was alleged that Payne issued violation notices while conducting his inspections for the purpose of returning to the sites later so that he could conduct a re-inspection on overtime for higher compensation. Id. at 2. The OIG investigator conducted a series of interviews during his investigation, which lasted over a year. On September 14, 2005, the investigator interviewed the initial source of the complaint against Payne, AOBA Vice President Shaun Pharr, who told the investigator that she had heard complaints from AOBA members about Payne soliciting work for his private commercial business while on duty. Id. at 3. On November 9, 2005, the investigator interviewed Payne's supervisor, who stated he was aware of Payne's private business but assumed that Payne only conducted business in Maryland and Virginia to avoid a conflict of interest with his job at DCRA. Id. Payne's supervisor also explained that he received a large number of complaints about Payne for overzealous inspections. Id. He told the investigator that he thought Payne had become more aggressive in his inspections since the third-party inspection program started because he was seeking to find fault in the third-party inspectors' work. Id. On February 13, 2006, the investigator interviewed DCRA's labor relations specialist, who told him that one third-party inspector, Steven Weaver, had reported an incident in which Payne tried to convince a building manager to hire his private business. Id. at 4. On March 3, 2006, OIG interviewed Weaver, who said that Payne had a reputation for exaggerating the results of his inspections. Id. Weaver also said that Payne had tried to solicit work from him and had given Weaver his business card. Id. The investigator interviewed Payne on April 14, 2006 and conducted other interviews in March and May 2006. Id. at 4–7.

Around Thanksgiving 2005, there was an incident at the Gallery Place Apartments in which a woman, Dawn Phillips, fell six stories out of an elevator and died. See Pl.'s Opp'n, Ex. A (Arbitration Hr'g Tr.) at 1231, 1240. In July 2004, Payne had cited a violation at the Gallery Place Apartments for lacking a permit to install the elevators. Id. at 1232–33. According to Payne, Steven Weaver had been responsible for both reviewing the plans for the installation and conducting the inspection, and Payne brought this to the attention of DCRA. Id. at 1233–34. Following the death of Ms. Phillips, Payne talked to the press about this incident and the third-party inspection process. Id. at 1236, 1239.

In March 2006, Payne testified again before the D.C. Council at a DCRA oversight hearing. Defs.' Stmt. ¶ 3. Payne's testimony is not in the record, but the parties agree that Payne again testified about the state of elevator safety in the District of Columbia. Around this same time, Payne also gave information to news media about the problems he perceived in D.C.'s elevator inspection regime. Based at least in part on Payne's disclosures to the media, Fox 5 television aired a story involving violation citations issued by Payne. Pl.'s Stmt. ¶ 19. According to Payne, the day after the media report, a DCRA manager approached him and said “Payne, I watched that story and I knew you were involved.” Pl.'s Opp'n, Ex. A (Arbitration Hr'g Tr.) at 1244–45. There is also some evidence in the record to indicate that Defendant Linda Argo called a meeting with DCRA managers to discuss the issues raised in the Fox 5 report. See id., Ex. B at 13 (3/2/2006 Email from Linda Argo to DCRA officials regarding “Fox5 report on elevators”).

On November 3, 2006, the OIG issued its final report on its investigation of Payne. See Defs.' Mem., Ex. 4 (Final Investigation Report). The report concluded that Payne had solicited work for his personal business as a third-party inspector while on duty in violation of D.C. Code § 1–618.02. Id. at 8. However, the report concluded that Payne had not issued violation notices for the purpose of earning overtime compensation. Id. The Inspector General's recommendation was that appropriate action be taken against Payne. Id.

On November 9, 2006, DCRA terminated Payne from his position and moved him to non-pay status. Defs.' Stmt. ¶ 4. The termination letter indicated that Payne was being summarily removed based on the outcome of the OIG investigation. See Defs.' Mem., Ex. 5 (11/9/2006 Letter). The letter informed Payne that he had a right to administrative review of the decision by a hearing officer. Id. at 2. Through his union, Payne submitted a response to the information in the OIG report, which was reviewed by Hearing Officer Theresa Cusick. See Defs.' Mem., Ex. 6 (Report of Hr'g Officer). Ms. Cusick issued her report on February 13, 2007. Defs.' Stmt. ¶ 6.

Ms. Cusick's report found that some of the evidence in the OIG report was not credible because it was based on statements by persons without personal knowledge and for which there was no corroboration. See Defs.' Mem., Ex. 6 (Report of Hr'g Officer) at 4. However, Ms. Cusick found that Payne had admitted that he had a private elevator inspection business and that he had discussed that business with at least three individuals....