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Payne v. District of Columbia

December 30, 2008


The opinion of the court was delivered by: Colleen Kollar-kotelly United States 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 the supervisor of DCRA (Nicholas Majett) (collectively, "Defendants"). Payne's nine-count Amended Complaint alleges, inter alia, that Defendants systematically violated Payne's constitutional, statutory, and common law rights by retaliating against him in response to the exercise of his First Amendment rights and for his whistle-blowing activities. Defendants have responded to Payne's Amended Complaint with three Partial Motions to Dismiss, or in the alternative, Motions for Summary Judgment.*fn1 Defendants' Motions seek dismissal of four claims in the Amended Complaint based on Payne's failure to exhaust his administrative remedies: (1) Breach of Contract (Count VI), (2) Civil Conspiracy to Interfere with Payne's Employment Relations (Count VII), (3) Defamation and Tortious Interference with Prospective Advantage (Count VIII), and (4) Wrongful Discharge (Count IX).*fn2 Payne opposed dismissal of these claims by arguing that he was not required to exhaust his administrative remedies, and Defendants filed Replies. After reviewing all of the parties' submissions, relevant case law and applicable statutory authority, the Court shall GRANT Defendants' Motions to Dismiss, Docket Nos. [11, 21, 29], and deny as moot Defendants' alternative Motions for Summary Judgment, Docket Nos. [12, 23, 31], for the reasons that follow.*fn3


A. Factual Background

Payne was employed as a DS-12 certified elevator inspector with DCRA beginning in 2001.*fn4 Am. Compl. ¶ 5. While in that position, Payne also owned his own outside business that performed elevator consulting work. Id. ¶ 6. Payne alleges that he disclosed his outside business to Defendant Canavan in 2005 but neither Canavan nor DCRA objected to his business. Id.

Between 2001 and 2005, Payne observed various practices and policies associated with improper elevator inspections and enforcement. Id. ¶ 10. Among other examples, building owners were establishing companies to perform inspections of their elevator systems that they controlled. Id. ¶ 9. Payne raised concerns about this practice but was told it was permissible. Id. These companies were also required to have their employees obtain at least 180 days of training from the District of Columbia. Id. ¶ 8. Defendants Canavan, Morgan, and Argo refused to enforce this law. Id. Payne also observed that Defendants Canavan, Majett, Morgan, and Argo would frequently sign off on work performed and completed without appropriate permits and that they accepted inspections performed by contractors whose reports were several months old. Id. ¶ 11. These and other practices and policies allegedly resulted in numerous elevator accidents in the District of Columbia. Id. ¶ 10.

These elevator-related accidents generated interest from the public and the District of Columbia City Council. Id. ¶ 7. Payne was requested to meet with various members of the City Council and to provide testimony concerning elevator inspections and safety at DCRA. Id. ¶ 12. For example, Payne met with City Council Member Jim Graham in January 2005, testified before a subcommittee of the City Council in February 2005, and testified before the City Council and a subcommittee in March 2006. Id. ¶¶ 12-15. Following his testimony, Payne gave interviews to print media as well as various television and radio stations. Id. ¶ 15.

While these activities were occurring, Payne continued to work as an elevator inspector. He issued citations and shut down elevators in the District of Columbia on multiple occasions, only to have his supervisors reverse his decisions and/or discipline him. Id. ¶ 10. In one such instance, Payne was disciplined for violating the express directions of Defendant Majett when he refused to conduct a particular inspection while the building owners lacked necessary permits.

Id. ¶ 16. In another instance, Payne shut the elevators down in a building where he observed over 50 code violations, resulting in a subsequent reprimand and suspension for ten days.

Id. ¶ 18. Payne alleges that certain building owners "organized an effort to cause [his] termination and began to make complaints about [him] to officials at DCRA" because he issued citations and shut down building elevators when necessary. Id. ¶ 10. In November 2006, Defendant Canavan issued Payne a notice of removal on the grounds that he used his public office for private gain. Id. ¶ 19. An independent hearing examiner reversed that decision in February 2007, ordering that Payne be reinstated with back pay.

Id. ¶ 19. Defendant Argo reinstated Payne in July 2007 but, Payne has not received any back pay or other lost benefits to date. Id.

After Payne returned to work, Defendants Argo and Majett solicited individuals from businesses to which Payne had issued citations "to provide false information about [] Payne" Id. ¶ 20. In June 2007, Defendant Argo issued Payne a ten-day suspension for failing to follow instructions, and in July 2007, Payne received a second notice of removal. Id. This notice charged Payne with (1) soliciting elevator inspection and consulting work for his private commercial business while conducting business for DCRA, (2) accepting something of value from persons regulated by DCRA who had an interest in his decision as to whether to shut down elevators, and (3) using government time for activities other than official business, including the promotion of his private business and the training of employees of that business during working hours. Id. Payne alleges that Defendant Argo knew these charges were false. Id.

A different independent hearing examiner considered the evidence underlying this second notice of removal and upheld the termination. Id. ΒΆ 21. On September 18, 2007, Payne was summarily removed from his position with DCRA. Id. Payne alleges that all of the charges against him were false and were "manufactured to bring about his ...

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