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Audrick Payne v. District of Columbia

September 6, 2011


The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge


(September 6, 2011)

Plaintiff Audrick Payne ("Payne") filed this action against his former employer, the District of Columbia Department of Consumer and Regulatory Affairs ("DCRA"), three of its former directors (Linda Argo, Lisa Morgan, and Patrick Canavan), and one of its supervisors (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. On December 30, 2008, the Court granted Defendants' motion to dismiss Counts VI, VII, VIII, and IX of the Amended Complaint based on Payne's failure to exhaust his administrative remedies. See Payne v. District of Columbia, 592 F. Supp. 2d 29 (D.D.C. 2008). On September 29, 2010, the Court granted Defendants' motion for judgment on the pleadings and for summary judgment with respect to Counts I, II, III, IV, and V of the Amended Complaint. See Payne v. District of Columbia, 741 F. Supp. 2d 196 (D.D.C. 2010). Presently pending before the Court is Payne's [58] Motion to Amend Judgment, in which Payne asks the Court to reconsider its ruling awarding summary judgment to Defendants on his claims under the D.C. Whistleblower Protection Act ("DCWPA"), D.C. Code §§ 1-615.51 et seq., and, by way of 42 U.S.C. § 1983, under the First and Fifth Amendments to the U.S. Constitution. As explained below, the Court finds that there was no clear error in its prior judgment, and therefore the Court shall DENY Payne's motion.


The facts relevant to Payne's present motion were thoroughly laid out by the Court in its summary judgment opinion. See 741 F. Supp. 2d at 202-07. The Court assumes familiarity with that opinion here. For background purposes, the Court shall briefly recite the facts most relevant to the pending motion. The Court shall also describe its basis for the summary judgment ruling which Payne asks the Court to reconsider.

A. Factual Background

Plaintiff Audrick Payne was employed as an elevator inspector with DCRA beginning on September 4, 2001. Shortly after he started his job at DCRA, Payne became dismayed at the state of elevator safety in the District of Columbia. Payne was also critical of DCRA's practice of allowing third-party inspectors to be responsible for maintaining elevator safety in the District of Columbia. In February 2005, Payne testified before the Council of the District of Columbia ("D.C. Council") at a DCRA oversight hearing. 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. Payne's testimony focused on the state of elevator safety in the District of Columbia and the need for additional staff, supplies, and safety equipment.

Around August 2005, the District of Columbia Office of the Inspector General ("OIG") began an investigation into Payne. The investigation was started based on allegations from members of the business community that Payne had solicited work as a third-party inspector for his private consulting business while on official duty as a DCRA elevator inspector. The OIG investigator conducted a series of interviews during his investigation, which lasted over a year.

In March 2006, Payne testified again before the D.C. Council at a DCRA oversight hearing. 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.

On November 3, 2006, the OIG issued its final report on its investigation of Payne. 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. The Inspector General's recommendation was that appropriate action be taken against Payne. On November 9, 2006, DCRA terminated Payne from his position and moved him to non-pay status. The termination letter indicated that Payne was being summarily removed based on the outcome of the OIG investigation. The letter informed Payne that he had a right to administrative review of the decision by a hearing officer. Through his union, Payne submitted a response to the information in the OIG report, which was reviewed by Hearing Officer Theresa Cusick. Ms. Cusick issued her report on February 13, 2007.

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. 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. 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. 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." However, Ms. Cusick did not make any findings with respect to this claim by Payne. 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. 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. Accordingly, she recommended that Payne be reinstated immediately and the penalty of removal be reduced to a suspension.

On June 27, 2007, Payne was reinstated by DCRA Acting Director Linda Argo. 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. 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. The suspension related to an incident in which Payne allegedly shut down elevators without notifying his supervisor in advance, as required by DCRA policy. The suspension was to be effective from June 28, 2007 through July 12, 2007.

On July 12, 2007, DCRA issued a Fifteen (15) Day Advance Notice of Proposed Removal, signed by Deputy Director Nicholas Majett. 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. The notice relied on evidence collected during the OIG investigation as well as evidence collected in June 2007 by DCRA. The notice indicated that DCRA officials had investigated allegations that Payne solicited business and accepted a free lunch while on official duty in 2005. The notice concluded that based on these violations and Payne's past disciplinary actions, the penalty of removal was appropriate. The notice indicated that Payne had the right to file a response and have an administrative hearing.

On September 17, 2007, Acting Director Argo issued a final decision regarding the removal and terminated Payne's employment with DCRA. Payne notified DCRA that he intended to arbitrate the removal action. He 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. 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?" 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. 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 ...

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