The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
Stephen P. Amos sues the District of Columbia; Emeka Moneme, Director of the D.C. Department of Transportation ("DDOT"); and Attorney General for D.C., Peter Nickles, for alleged violations of his rights under the First Amendment to the Constitution of the United States and, against D.C. alone, an alleged violation of the District of Columbia Whistleblower Protection Act ("WPA"), D.C. Code § 1-615.51 et seq., in relation to his discharge from DDOT. Prior to the termination of his employment with DDOT, Mr. Amos complained about alleged contractor improprieties to two DDOT Deputy Directors; Director Moneme; Attorney General Nickles (then General Counsel to D.C. Mayor Adrian Fenty); the D.C. Office of the Inspector General ("OIG"); and the Federal Bureau of Investigation ("FBI"). He alleges that Director Moneme unlawfully discharged him because he made these complaints. Before the Court are Defendants' Motion to Dismiss Complaint [Dkt. # 7] and Motion to Dismiss First Amended Complaint [Dkt. # 10]. The Court will deny the former motion as moot and, for the reasons explained herein, will grant in part and deny in part the latter motion.
The facts are taken from Mr. Amos's First Amended Complaint and read in a light most favorable to him. See Aktieselskabet Af 21. Nov. 2001 v. Fame Jeans, Inc., 525 F.3d 8, 15-17 (D.C. Cir. 2008).
DDOT Director Moneme hired Mr. Amos in July 2007 to fill the position of Chief of Staff in the Management Supervisory Service, DDOT. Mr. Amos was the number two person in the office and reported directly to Director Moneme. In this role, Mr. Amos supervised the Offices of Integrity and Compliance, Risk Management/Emergency Preparedness, Communications, and Administrative and Management Support Services. His fundamental role was to assist DDOT management and employees to achieve "the highest level of integrity in order that the agency's external customers receive reliable and efficient service." First Am. Compl. ¶ 15.
On July 23, 2007, Mr. Amos first learned about Fort Myer Construction Corporation, a DDOT contractor, when a report disclosed that a street had collapsed due to the suspected use of low-grade asphalt on a contracting job. During an investigation into the incident, Mr. Amos learned that Fort Myer had been convicted of bribing a number of DDOT employees, five years earlier, in an investigation conducted by the FBI. The conviction led to Fort Myer being debarred from working on federally-funded construction projects for a period of eighteen (18) months.
On December 3, 2007, Francisco Edwin Gonzalez, a subordinate to Mr. Amos, reported Mr. Gonzalez's concerns about possible improprieties in the relationship among officials of DDOT, Fort Myer, Peake Construction Company and Pessoa Construction Company. Mr. Gonzalez expressed concern that Fort Myer had been working with various DDOT officials and using fraudulent means to obtain U.S. Department of Transportation ("USDOT") funding since its debarment ended, such as contracting with Peake, a purported Disadvantaged Business Enterprise ("DBE"), to qualify for some contracts. When, in August 2007, Mr. Gonzalez visited one such project - the Foxhall Road N.W. Safety Improvements Road Project - where Peake was supposed to be working as a subcontractor to Fort Myer, Peake was not performing the work but had further subcontracted to DEN United, an entity unauthorized by DDOT to be on the site. Mr. Gonzalez told Mr. Amos that he believed Peake was a shell company because it had no assets, no equipment, no trucks, and no office, and its Chief Executive Officer is Parney Jenkins, Sr., a former DDOT official convicted of taking bribes from Fort Myer. Mr. Gonzalez submitted a formal memo to Mr. Amos on December 4, 2007, laying out his concerns about the Foxhall Road, N.W. Safety Improvements Project and also the South Capitol Street, Near Term Improvement Project, at which Fort Myer had contracted sixty-two percent (62%) of its work to a company that was not DBE qualified.*fn1
On December 5, 2007, Mr. Amos reported the concerns voiced by Mr. Gonzalez to DDOT Deputy Directors Ken Laden and Carol Kissal, both jointly and separately. Mr. Amos told Ms. Kissel that he planned to speak to the OIG and she became upset, stating that D.C. City Administrator Dan Tangerlini (formerly DDOT Director) had advised her to manage this kind of risk-related issue internally. She told Mr. Amos that it would be better if the information did not go outside the Director's Office.
Later the same day, Director Moneme came to Mr. Amos's office and Mr. Amos repeated the information learned from Mr. Gonzalez. Mr. Amos told Director Moneme that he wanted to report this information to the OIG. Director Moneme allegedly became angry and ordered Mr. Amos "to keep the information internal and 'quiet' and not share it with the OIG." Id. ¶ 59. Nevertheless, Mr. Amos contacted the OIG via email and scheduled a confidential meeting for December 7, 2007.
In the meantime, Mr. Amos called Mr. Nickles on December 6, 2007, gave an overview of his concerns, and asked for a private meeting. The meeting was scheduled rapidly, only 30 minutes later. When they met, Mr. Amos detailed his concerns and related to Mr. Nickles the information that Mr. Gonzalez had told him. Mr. Nickles told Mr. Amos to report his information to the OIG.
Mr. Amos met with Leonard Odom, Assistant Inspector General, on December 7, 2007. Although Mr. Amos was ready to detail all of his concerns, he was concerned about retaliation and asked Mr. Odom for protection. Mr. Odom responded that without knowing more details, he could not guarantee that the information would remain confidential or that Mr. Amos would not be retaliated against. When Mr. Amos requested a joint OIG/FBI meeting, Mr. Odom said that he first needed to know more details and to review the documents. Amos decided not share any more specifics.
On December 11, 2007, Mr. Amos called Mr. Nickles to request a letter of assurance against retaliation but Mr. Nickles replied that "he did not have the authority to make assurances without knowing more about the situation." Id. ¶ 85. Mr. Amos emailed a number of documents to Mr. Nickles that involved an investigation regarding Kathleen Penney, DDOT's new Chief Engineer, "in which the Office of Integrity and Compliance was thwarted and could not conduct a simple fact-finding investigation." Id. ¶ 88. Mr. Amos apparently told Mr. Nickles that, "[a]t Tangerlini's direction, Moneme counseled Amos not to pursue this matter concerning Penney." Id. ¶ 89. Within 30 minutes, Mr. Amos was asked to meet with Mr. Nickles. Mr. Nickles chastised Mr. Amos for his failure to disclose his concerns fully in meeting with the OIG on December 7. Mr. Amos again asked for a letter to protect himself and his subordinates but Mr. Nickles responded, "'I do not make such commitments on a whim for employees that are in jeopardy and no letter of assurance will be forthcoming.'" Id. ¶ 93. Mr. Amos left the meeting with Mr. Nickles and immediately contacted the FBI, to whom he made full disclosures.
On the next day, December 12, 2007, Director Moneme held the first of a series of previously-scheduled Contract Meetings with the relevant parties present: Procurement, General Counsel, Civil Rights, Office of Integrity, and Mr. Amos, Chief of Staff. During the meeting, Director Moneme received an emergency call and abruptly postponed the rest of the meeting. Later that day, he came to Mr. Amos's office and allegedly screamed at Mr. Amos for "betraying" him by talking to the OIG. Id. ¶ 105. "Moneme said that the Mayor's Office had informed him that Amos had breached his trust and that Amos' actions had been inappropriate because this should have remained an internal matter." Id. ¶ 106. Director Moneme further said that Mr. Amos should be "sequestered in his office" or "escorted out of the building." Id. ¶ 108. As he left, Director Moneme demanded Mr. Amos's notes from the morning meeting, told him that he would be "precluded from all further investigations," and threatened, "you're done." Id. ¶¶ 109-111.
Mr. Amos left the building and sent an email to Mr. Nickles, summarizing all conversations to date and saying that he felt "compelled to communicate that which had been stymied internally and that which he believed to be an on-going criminal ...