United States District Court, District of Columbia
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[Copyrighted Material Omitted]
For BETTY CLAYTON, Plaintiff: Levi S. Zaslow, Timothy Francis Maloney, JOSEPH, GREENWALD & LAAKE, P.A., Greenbelt, MD.
For DISTRICT OF COLUMBIA, Defendant: Chad Alan Naso, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL, DISTRICT OF COLUMBIA, Washington, DC.
For DISTRICT OF COLUMBIA NATIONAL GUARD, Defendant: John J. Gowel, LEAD ATTORNEY, UNITED STATES ATTORNEY'S OFFICE FOR THE DISTRICT OF COL, Civil Division, Washington, DC.
RICHARD W. ROBERTS, United States District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff Betty Clayton brings suit against the District of Columbia (" District" ) and the District of Columbia National Guard (" DCNG" ), alleging that the District violated the D.C. Whistleblower Protection Act (" DC-WPA" ), D.C. Code § 1-615.51 et seq., the D.C. False Claims
Act (" DC-FCA" ), D.C. Code § 2-381.01 et seq.,  and D.C. common law by retaliating against her for making protected disclosures and for engaging in other protected conduct, and the defendants violated the United States Constitution by depriving her of her property interest in her employment without due process.  Clayton also seeks a declaratory judgment that D.C. Code § 1-609.58(a) is unconstitutional. The defendants move to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, and the DCNG moves under Rule 12(b)(1) to dismiss the complaint for lack of subject matter jurisdiction. Because the court lacks subject matter jurisdiction over Clayton's claims against the DCNG, the DCNG's motion to dismiss will be granted. Because Clayton had amply pled a causal connection between her protected disclosures and the adverse employment action and shown that her DC-WPA claim is not time-barred, Clayton's claims under DC-WPA and DC-FCA against the District will not be dismissed. Because Clayton failed to state a claim against the District under D.C. common law and the Fifth Amendment of the U.S. Constitution, Counts Three, Four, and Five of Clayton's amended complaint will be dismissed as to the District.
Clayton's amended complaint makes the following factual assertions. In June 2008, Clayton was appointed as the Director of the D.C. Government Operations Division of the DCNG. Am. Compl. ¶ 5. The D.C. Government Operations Division is " simultaneously a Directorate within Joint Force [Headquarters], DC National Guard and an agency of the Government of the District of Columbia." Id. ¶ 9.  When Clayton was appointed, the Director of the D.C. Government Operations Division was a Career Service position. Id. ¶ 6.  During the events relevant to the complaint, Clayton reported to Major General Errol Schwartz, the Commanding General of the Joint Force Headquarters of the DCNG. Id. ¶ ¶ 7, 13. General Schwartz also completed Clayton's performance evaluations and Clayton always received " flawless employment appraisals." Id. ¶ 10. As the Commanding General of the DCNG, General Schwartz is a federal employee of the Department of Defense. See D.C. Code § 49-301(b).
As the agency head, Clayton was " under an obligation and duty to investigate and discipline potential wrongdoing at the DCNG as well as report fraud, waste and abuse." Am. Compl. ¶ 11. In this capacity, from April 2010 through August 2010, Clayton reported several incidents of unlawful
conduct within the DCNG. For example, Tamera Jones, General Schwartz's administrative assistant, filed a sexual harassment complaint against the General. Id. ¶ 14. Despite pressure from Judge Advocate General (" JAG" ) and federal Inspector General investigators " to not file or report the sexual harassment allegations made by Ms. Jones[,]" Clayton reported Jones's allegations in April 2010. Id. ¶ ¶ 16-18. Shortly after Clayton reported the sexual harassment complaint, General Schwartz threatened Clayton saying " we'll see who's sitting in that seat on October 1st." Id. ¶ ¶ 19-20. General Schwartz made similar termination threats in June or July 2009, January 2010, and September 2010. Id. ¶ 68.
Later, Clayton reported that Charlotte Clipper, the Human Resources Supervisor of the D.C. Government Operations Division, had " engaged in behavior that was inappropriate and against policy on numerous occasions." Id. ¶ ¶ 8, 22. For example, Clayton reported that Clipper had used a DCNG credit card to illegally pay for attorney's fees for a non-work-related matter for a former employee, and that Clipper had promoted herself, " wrote her own performance evaluation for an incentive award," and " inappropriately removed paychecks from the DCNG building[.]" Id. ¶ ¶ 24-29, 32. Again, JAG investigators tried to stop Clayton from reporting Clipper's violations, id. ¶ ¶ 36-37, but Clayton reported the violations, id. ¶ 38. Clayton also reassigned Clipper and attempted to have her terminated from the DCNG. Id. ¶ 40. Clayton reported these and other violations to General Schwartz. Id. ¶ 65.
In May 2010, " General Schwartz's staff solicited the advice of the D.C. Human Resources Department's General Counsel regarding General Schwartz's administrative authority over the employees of the Government Operations Division." Id. ¶ 70. On August 27, 2010, Attorney General Nickles responded to General Schwartz's inquiry stating that the Division is a " subordinate agency of the Mayor of the District of Columbia" and that the Director of the Government Operations Division is " a District employee" who is " subject to the personnel rules, regulations, laws and the policy of the District[.]" Def. D.C.'s Mot. to Dismiss the Am. Compl. (" District's Mot." ), Ex. (Letter from Peter J. Nickles, Attorney General for the District of Columbia, to Major General Erroll [sic] R. Schwartz, Commanding General, District of Columbia National Guard (Aug. 27, 2010) at 1-2). The Director's " chief responsibility" is " [s]upervision of District personnel assigned to the DCNG." Id. at 2. Although the Division is a District agency, in light of the Division's mission " to facilitate the coordination of operational programs so that the National Guard can efficiently respond to natural and civil emergencies in the District," the Commanding General has " the opportunity to collaborate with District officials regarding the personnel matters of the Division[.]" Id. The Commanding General is also " free to confer with the Mayor" on personnel matters " if personnel problems rise to the level where it impacts the readiness of the National Guard[.]"
In August 2010, Clayton also met with Attorney General Nickels to discuss " the interplay between the Government Operations Division of the DCNG and the DCNG." Am. Compl. ¶ 77. The Attorney General told Clayton that she should report to Neil Albert, the District of Columbia City Administrator and a close personal friend of General Schwartz. Id. After meeting with the Attorney General, Clayton contacted Albert numerous times but was told that Albert could meet with her no sooner than mid-November 2010.
On September 27, 2010, Clayton received a letter stating that the Director position was being reclassified from a Career Service position to an at-will, Management Supervisory Service (" MSS" ) position under D.C. Code § 1-609.58(a).  Id. ¶ ¶ 74, 78. After learning that there were no vacant Career Service positions, Clayton accepted that her Director position would be converted to an MSS position. Id. ¶ 75. On October 26, 2010, Clayton received a notification from Albert that she was being terminated without cause effective November 10, 2010. Id. ¶ 76.
On October 26, 2011, Clayton filed suit against the District and the DCNG. In Clayton's five-count amended complaint, Clayton alleges in Counts One and Two that the District retaliated against her for making protected disclosures and engaging in protected conduct in violation of the DC-WPA and the DC-FCA respectively. Id. ¶ ¶ 86-97. Count Three alleges that the District wrongfully terminated Clayton in violation of District of Columbia common law. Id. ¶ ¶ 98-102. Count Four alleges that the District and the DCNG violated Clayton's constitutional due process rights by depriving Clayton of her protected property interest in her employment and right to seek review of any termination of her employment with the Office of Employee Appeals (" OEA" ) without due process, and seeks money damages for ...