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 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  Order (Dec. 30, 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'  Motion for Judgment on the Pleadings and  for Summary Judgment, as well as Plaintiff's  Motion for Leave to File Surreply.
For the reasons explained below, the Court shall grant Defendants'  Motion for Judgment on the Pleadings and for Summary Judgment on the remaining counts in the Amended Complaint and deny Plaintiff's  Motion for Leave to File Surreply.
Plaintiff Audrick Payne ("Payne") was employed as an elevator inspector with DCRA beginning on September 4, 2001. Pl.'s Stmt.*fn1 ¶ 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,*fn2 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.*fn3 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. Id. at 3. Based on her review of the OIG report and Payne's evidence in response, Ms. Cusick concluded that Payne distributed his private business card in the course of his official government business on more than one occasion and that he discussed his private elevator inspection business on at least one occasion while conducting official business. Id. at 4. Ms. Cusick noted that Payne's "defense appears to be that there was a conspiracy to 'get him' because of his frequent complaints to the Office of the Inspector General, the Council and other agencies regarding improper agency activities or alternatively, the apartment building industry was trying to disarm him because of his rigorous attention to safety." Id. at 4. However, Ms. Cusick did not make any findings with respect this claim by Payne. Id. Ms. Cusick found by a preponderance of the evidence that Payne committed the alleged misconduct and that this conduct met the standard for summary action under D.C. personnel rules. Id. at 5. Ms. Cusick found, however, that the penalty of removal was not appropriate because there was no evidence that DCRA had considered mitigating factors or progressive penalties. Id. Accordingly, she recommended that Payne be reinstated immediately and the penalty of removal be reduced to a suspension. Id. at 6.
On June 27, 2007, Payne was reinstated by DCRA Acting Director Linda Argo. Defs.' Stmt. ¶ 7. The action letter stated that the summary removal of November 6, 2006 was rescinded and that Payne would be reimbursed for back pay and other benefits from that date forward. See Defs.' Mem., Ex. 7 (6/27/2007 Letter). Also on June 27, 2007, Director Argo issued Payne a Final Decision on Proposed Suspension for Ten (10) Days Without Pay in response to an October 11, 2006 proposed notice of suspension. Defs.' Stmt. ¶ 8. The suspension related to an incident in which Payne allegedly shut down elevators without notifying his supervisor in advance, as required by DCRA policy. See Defs.' Mem., Ex. 8 (6/27/2009 Letter). The suspension was to be effective from June 28, 2007 through July 12, 2007. Id. at 3.
On July 12, 2007, DCRA issued a Fifteen (15) Day Advance Notice of Proposed Removal, signed by Deputy Director Nicholas Majett. See Defs.' Mem., Ex. 9 (7/12/2007 Letter). The notice indicated that Payne was being removed because he (1) solicited elevator inspection and consulting work for his private commercial business while he was conducting business for DCRA as an elevator inspector; (2) accepted favors from persons regulated by DCRA who had a specific interest in his decision whether or not to shut down elevators; (3) used government time for other than official business, including promotion of his private business and training of employees for that business during working hours; and (4) had been suspended for failing to comply with work instructions given by his supervisor. Id. at 1-2. The notice relied on evidence collected during the OIG investigation as well as evidence collected in June 2007 by DCRA. Id. at 2-6. The notice indicated that DCRA officials had investigated allegations that Payne solicited business and accepted a free lunch while on official duty in 2005. Id. at 3-4. The notice concluded that based on these violations and Payne's past disciplinary actions, the penalty of removal was appropriate. Id. at 5. The notice indicated that Payne had the right to file a response and have an administrative hearing. Id.
On September 17, 2007, Acting Director Argo issued a final decision regarding the removal and terminated Payne's employment with DCRA. Defs.' Stmt. ¶ 10. Payne submitted a written response on October 19, 2007, and November 27, 2007, he sent a letter to Acting Director Argo informing her of his intent to arbitrate the removal action. Id. ¶ 11. Payne filed a notice pursuant to D.C. Code § 12-309 on September 12, 2007. Id. ¶ 12. Payne filed this action on January 28, 2008.
On October 5, 2009, arbitrator David Weinstein of the Federal Mediation and Conciliation Service issued an Arbitration Award in favor of Payne. See Defs.' Mem., Ex. 12 (Arbitration Award). The issues before the arbitrator were "Did the Agency [DCRA] have cause to terminate the grievant Audrick Payne?" and "If not, what should the remedy be?" See id. at 2. The arbitrator found that Payne was recruited and hired by DCRA in 2001 and "was in trouble from the get-go." Id. at 19. The arbitrator found that Payne was appalled at the state of elevators and elevator inspections in the District, and he particularly disliked the third-party inspection program and was not afraid to say so. Id. As a result, Payne was more thorough in his inspections than others and did not hesitate to cite violations, issue tickets, or even shut down elevators, frustrating the major building owners and managers in the District. Id. at 20. DCRA tried to terminate Payne at the end of his probationary period, but it waited too long, meaning that Payne could only be terminated for cause. Id. Payne continued with his job, receiving satisfactory or better performance evaluations, but he continued to be rigid in his enforcement, and he was found to be insubordinate by his supervisor in 2003, a claim that was sustained by the arbitrator. Id. The arbitrator noted that there were a number of complaints about Payne's elevator inspections but found that the "real issue" was Payne's handling of proven violations, which Payne enforced more harshly than other elevator inspectors. Id. at 21-23. The arbitrator wrote that DCRA "appears not to have come to grips with an employee intent on following the letter as well as the spirit of the law." Id. at 23. The arbitrator noted that Payne's supervisors gave him conflicting orders and instructions as to whether he was going too far or whether he was doing a good job. Id. The arbitrator found that rather than give Payne appropriate guidance as to how to do his job, DCRA tried to get rid of him as soon as possible. Id. at 23-24. The arbitrator found faults in the OIG investigation and concluded that DCRA accepted its findings too uncritically. Id. at 24-29.
The arbitrator found that Payne acknowledged that he was more rigorous than other DCRA inspectors and admitted supervisors sometimes overruled his elevator shutdowns or stop work orders but believed that they did so either because of political pressure exerted by well-connected building owners or managers or because of honest differences of opinion. Id. at 40-41.
Payne also acknowledged to the arbitrator that if reinstated, he would not change how he conducted inspections or sanctioned violations. Id. at 41. The arbitrator explained the union's position that the entire case against Payne "amounts to nothing more than the Agency's bad faith attempt to rid itself of an employee who was out of step because he actually wanted to enforce the letter of the law and who was willing to blow the whistle to achieve this goal." Id. at 49. However, the arbitrator did not make any findings with respect to the alleged retaliation.
Ultimately, the arbitrator found that DCRA was able to prove by a preponderance of the evidence only that Payne had promoted his personal business by distributing a few of his business cards and engaging in some discussions about his business. Id. at 52. The arbitrator noted that Payne thought that such low-level promotions of his own business (which operated only in Virginia and Maryland) while "off duty" did not pose any conflict of interest problems. Id. at 55. The arbitrator concluded, however, that Payne's actions did create a conflict of interest, or least the appearance of one, in violation of D.C. law. Id. at 55-56. The arbitrator also found that DCRA had failed to give Payne appropriate guidance with respect to how he could ethically promote his personal business while keeping his job as an elevator inspector. Id. at 58-60. The arbitrator concluded that DCRA had failed to prove that Payne engaged in egregious conduct justifying immediate removal without consideration of progressive discipline or mitigating circumstances, and therefore DCRA lacked cause to summarily remove him. Id. at 60. However, the arbitrator declined to determine a remedy, ordering the parties to further negotiate an appropriate remedy. Id. at 61-62.
A. Motion for Judgment on the Pleadings
Pursuant to Federal Rule of Civil Procedure 12(c), "[a]fter the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). The appropriate standard for reviewing a motion for judgment on the pleadings is "virtually identical" to that applied to a motion to dismiss under Rule 12(b)(6). See Haynesworth v. Miller, 820 F.2d 1245, 1254 (D.C. Cir. 1987), abrogated on other grounds by Hartman v. Moore, 547 U.S. 250 (2006); Jung v. Ass'n of Am. Med. Colleges, 339 F. Supp. 2d 26, 36 (D.D.C. 2004) ("[T]he standard of review for motions for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure is essentially the same as that for motions to dismiss under Rule 12(b)(6)."). Because a Rule 12(c) motion "would summarily extinguish litigation at the threshold and foreclose the opportunity for discovery and factual presentation," the Court must treat Defendants' motion "with the greatest of care" and deny it "if there are allegations in the complaint which, if proved, would provide a basis for recovery." Haynesworth, 820 F.2d at 1254.
The Federal Rules of Civil Procedure require that a complaint contain "'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly,550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). Although "detailed factual allegations" are not necessary to withstand a motion to dismiss, to provide the "grounds" of "entitle[ment] to relief," a plaintiff must furnish "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555; see also Papasan v. Allain, 478 U.S. 265, 286 (1986). Instead, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 556).
In evaluating either a Rule 12(c) motion for judgment on the pleadings or a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court must construe the complaint in a light most favorable to the plaintiff and must accept as true all reasonable factual inferences drawn from well-pleaded factual allegations. In re United Mine Workers of Am. Employee Benefit Plans Litig., 854 F. Supp. 914, 915 (D.D.C. 1994); see also Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979) ("The complaint must be 'liberally construed in favor of the plaintiff,' who must be granted the benefit of all inferences that can be derived from the facts alleged."). However, as the Supreme Court recently made clear, a plaintiff must provide more than just "a sheer possibility that a defendant has acted unlawfully." Iqbal,129 S.Ct. at 1950. Where the well-pleaded facts set forth in the complaint do not permit a court, drawing on its judicial experience and common sense, to infer more than the "mere possibility of misconduct," the complaint has not shown that the pleader is entitled to relief. Id. at 1950. Moreover, the court is not bound to accept the legal conclusions of the non-moving party. See Taylor v. FDIC, 132 F.3d 753, 762 (D.C. Cir. 1997).If, on a motion for judgment outside the pleadings, "matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56." Fed. R. Civ. P. 12(d).
B. Motion for Summary Judgment
Summary judgment is proper when "the pleadings, the discovery [if any] and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Under the summary judgment standard, the moving party bears the "initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). In response, the non-moving party must "go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that ...