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MURRAY v. GILMORE

September 30, 2002

LUCY MURRAY, PLAINTIFF,
V.
DAVID GILMORE, DEFENDANT.



The opinion of the court was delivered by: Emmet G. Sullivan, United States District Judge

MEMORANDUM OPINION

Plaintiff, Lucy Murray, sues David Gilmore individually and in his official capacity as Receiver of the District of Columbia Housing Authority ("DCHA"). The parties filed cross motions for summary judgment. On March 31, 2002, the Court issued an order granting in part defendant's motion for summary judgment with respect to all claims against defendant in his individual capacity and as to plaintiff's Title VII claims against defendant in his official capacity. The Court denied defendant's motion with respect to plaintiff's due process and unlawful termination claims against defendant in his official capacity. The Court denied plaintiff's motion for summary judgment in its entirety. For the following reasons, and after much consideration, the Court modifies its March 31, 2002 order and grants defendant's motion for summary judgment on all of plaintiff's claims with the exception of plaintiff's due process claim. The Court dismisses without prejudice plaintiff's due process claim. Plaintiff's motion for summary judgment is denied.

I. Background

A. Receivership of DCHA

In 1992, Catherine Pearson and other individuals sued District of Columbia Mayor Sharon Pratt Kelly, seeking improvements in public housing. On May 19, 1995, Judge Steffen W. Graae of the Superior Court of the District of Columbia entered an order setting out stipulated conditions of settlement. With the agreement of the parties, Judge Graae appointed David Gilmore as receiver for the District of Columbia Department of Public and Assisted Housing and successor agencies. Order, Pearson v. Pratt Kelly, 92-CA-14030 (D.C. Sup. May 19, 1995) ("Pearson Order"). The order stated that the receiver was appointed by the court and was "subject to the control of [the] court." Id. at 2.

The Pearson order provides a non-exhaustive list of Gilmore's duties and responsibilities, and his powers and authority as receiver. The receiver's powers included the "[a]uthority to reorganize and restructure DPAH's, or its successor's, divisions." Id. at 5. The order sets forth in detail the receiver's authority to establish personnel policy. In relevant part, the order grants the receiver:

[a]uthority to establish personnel policies; to create, modify, abolish, or transfer positions; to hire, terminate, promote, transfer, evaluate, and set compensation for staff. . . . Employees who serve at the pleasure of the Mayor ("at-will employees") and employees in their probationary period serve at the will of the Receiver. Employees subject to collective bargaining agreements will be subject solely to the personnel rights set forth in the collective bargaining agreements. As to employees who are not subject to collective bargaining agreements, during the transition from the start-up of the receivership to the implementation of such personnel policies as the Receiver shall institute, such employees' rights as to benefits, compensation, and termination (except as stated herein) shall be governed by the Comprehensive Merit Personnel Act, D.C. Code § 1-601 et seq. Upon the establishment by the Receiver of published personnel policies for the governing of employees who are not subject to collective bargaining agreements, these employees shall be subject solely to the personnel policies the Receiver shall institute governing the employees' benefits, compensation and termination. The personnel policies established by the Receiver for employees who are neither at will employees, employees in their probationary period, nor subject to collective bargaining agreements ("permanent managerial civil service employees"), shall provide that these employees shall not be terminated except for cause or misconduct or for non-performance of duty or due to abolition of thier position (as these terms are defined by the Receiver in the published personnel policies). The personnel policies established by the Receiver for permanent managerial civil service employees shall further provide that salaries and benefits for these employees shall not be reduced, except for misconduct or for economic necessity for the Agency (as these terms are defined by the Receiver in the published personnel policies). The personnel policies established by the Receiver for permanent managerial civil service employees shall further provide these employees with a right for a time-limited appeal.

Pearson Order, at 6-7.

Prior to the inception of the receivership, the Office of Public Information at DPAH operated under the supervision, support and direction of the Mayor. However, with the commencement of the Pearson receivership and the establishment of DCHA as an independent agency, the DCHA Office of Public Information answered only to the receiver.

B. Plaintiff's Employment with DCHA

Plaintiff Lucy Murray was employed by the D.C. Department of Public and Assisted Housing and by its successor agency, DCHA, as a Visual and Public Information Officer from December 1987 until her termination on February 16, 1996.

At the time of the Pearson order, which established the receivership for DPAH, Ms. Murray was working as a Visual and Public Information Officer at the Office of Fair Hearings. This position was a "permanent managerial civil service" position. See Am. Compl. at 2. As such, the Pearson order authorized the receiver to dismiss Ms. Murray only for cause, misconduct, nonperformance of duties, or abolition of the position. See Pearson Order; Def.'s Mot. at 2.

When Mr. Gilmore assumed the position of receiver on May 22, 1995, Ms. Murray returned to her post at DPAH. Am. Compl. at 14. In September of 1995, DCHA issued a job description for the position of Director of Public Affairs. According to the description, this position was to be a policymaking position, with direct reporting to the receiver, and subject to termination without cause. Four days after the announcement of the opening for Director of Public Affairs, Mr. Gilmore announced that he had hired Arthur Jones, and African-American man, for the position.

On December 8, 1995, Mr. Gilmore issued the DCHA Personnel Policy Manual ("PPM"), a document intended to replace the District's CMPA. Mr. Gilmore made a written determination that the CMPA created an impediment to the recovery of DCHA. See Pl.'s Mot., Ex. K (Def.'s Response to Interrogatories, No. 4). The PPM authorized the receiver to determine the agency's structure and the number of positions in DCHA, and mandated that department directors serve at the pleasure of the receiver.

On January 11, 1996, Mr. Gilmore notified Ms. Murray that her position had been terminated in connection with a reduction in the number of permanent managerial positions at DCHA. Her termination was to be effective as of February 16, 1996. The positions of five women and eight men, in addition to that of Ms. Murray, were abolished in January of 1996. of the personnel occupying positions that were eliminated, six individuals did not return to work for DCHA in any other position. Three people applied for retirement benefits, and three others were involuntarily separated from DCHA. Ms. Murray and Ms. Nesbitt, both African-American women, were the only individuals who had their employment finally terminated. Mr. Brooms, who was involuntarily separated from employment with DCHA was subsequently employed by another city agency.

C. Procedural History

On February 23, 1996, Ms. Murray filed an administrative appeal with DCHA alleging that her termination was not part of a proper reduction-in-force. The administrative hearing on plaintiff's claim took place more than a year after plaintiff filed her administrative appeal. Although internal regulations require that findings be issued by the hearing officer within thirty days, Arbitrator Berk issued a recommended opinion some ten months after the parties submitted proposed findings of fact and conclusions of law.

At the administrative hearing, DCHA argued that there was no evidence that it had simply renamed Murray's position and hired Jones for the position. Murray, on the other hand, relied on testimony by the Agency Representative at the hearing that admitted that Mr. Jones' and plaintiff's jobs were "functionally equivalent." Def.'s Mot., Ex. Q, at 5 (Hearing Ex'mr Recommendation). The representative agreed that both jobs had overall responsibility for the Office of Public Information.

The hearing examiner, noting that "abolishment of positions are [sic] typically conducted for lack of funds, personnel ceilings, reorganization, decrease in work or exercise of reemployment rights," found that the reduction-in-force termination of Murray was pretextual. Id. at 11-12. The examiner noted the increase in the number of employees assigned to plaintiff's department and the increase in the department's operating budget, "coupled with the fact that another employee is hired to perform the same duties performed by Murray leads to the inescapable conclusion that the reorganization was a veil to effectuate Ms. Murray's termination. . . . [T]he record in this proceeding fails to establish that the separation of Murray pursuant to a RIF was proper. . . . This record clearly establishes that there was merely a reorganization on paper as budgetary constraints and/or shortage of work was due to the hiring of Jones." Id. at 14. The hearing examiner recommended that Ms. Murray's separation from DCHA be reversed and that she be reinstated and awarded back pay and benefits. Id. at 15.

Five days before summary judgment motions were due in this case, on August 25, 2000, Mr. Gilmore wrote Ms. Murray a letter indicating that he "declined to adopt and implement Hearing officer Susan Berk's recommendation." Mr. Gilmore affirmed the abolition of plaintiff's former position. In doing so, Mr. Gilmore relied on his ...


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