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Payne v. District of Columbia

United States District Court, District Circuit

December 3, 2013

ERIC W. PAYNE, Plaintiff,
v.
DISTRICT OF COLUMBIA, et al., Defendants.

MEMORANDUM OPINION AND ORDER

RICHARD W. ROBERTS, Chief District Judge.

Plaintiff Eric Payne brings suit against defendants District of Columbia ("D.C.") and Dr. Natwar Gandhi, D.C.'s Chief Financial Officer ("CFO"), alleging that the defendants violated the D.C. Whistleblower Protection Act ("DC-WPA"), D.C. Code § 1-615.51 et seq., by retaliating against him for making protected disclosures, and that the defendants violated the United States Constitution by defaming him and depriving him of his liberty interest in following his chosen profession.[1] At the close of discovery, the defendants moved for summary judgment. Because Payne did not show that the defendants' legitimate, non-retaliatory reason for terminating him is pretextual, and the undisputed facts establish that Payne has no constitutional defamation claim, the defendants' motion for summary judgment will be granted as to Payne's DC-WPA claim regarding his termination and his constitutional defamation claim. The defendants' motion will be denied as to Payne's DC-WPA claim regarding other acts of retaliation given factual disputes concerning their causation.[2]

BACKGROUND

In July or August of 2004, Payne was hired as the Assistant General Counsel for procurement in the Office of the CFO ("OCFO"). See Payne v. District of Columbia (Payne II) , 859 F.Supp.2d 125, 127 (D.D.C. 2012). In May 2006, Payne was promoted to Director of Contracts. Payne v. District of Columbia (Payne I) , 773 F.Supp.2d 89, 92 (D.D.C. 2011). "[I]n that capacity, [Payne] initiated the process of awarding to one of two bidders a contract to be the service provider for the D.C. lottery." Payne II , 859 F.Supp.2d at 127. Payne alleged that after a "fair, reasonable, and objective competition, " he selected W2I for the contract. Id . "However, the proposed lottery contract was contingent upon the D.C. Council's review and approval." Id.

According to Payne, two D.C. Councilmembers "cajoled the [O]CFO into withdrawing W2I's contract." Id. at 128. Despite pressure from the D.C. Council and Gandhi, Payne refused to modify the proposed contract and warned "the Councilmembers that forcibly removing and replacing a joint venturer after completing the source selection process would be illegal." Payne II , 859 F.Supp.2d at 128 (alterations and internal quotation marks omitted). From April 2008 to July 2008, Payne complained several times to his supervisor Paul Lundquist, Lundquist's supervisor Angell Jacobs, and Gandhi, and filed a complaint with the Office of Integrity and Oversight ("OIO") within the OCFO about the irregularities with the lottery contract and his concerns with other general contracting practices at the OCFO. Defs.' Mot. for Summ. J. ("Defs.' Mot."), Defs.' Stmt. of Undisputed Material Facts in Supp. of Mot. for Summ. J. ("Defs.' Stmt.") ¶¶ 15-26. Payne also met with the D.C. Auditor in November 2008 to discuss these concerns. Id . ¶ 27.

During the same time that Payne was voicing his concerns about the lottery contract and OCFO's other contract and business practices, Payne alleges that his duties at the OCFO were being curtailed. On May 15, 2008, the OCFO's General Counsel filed a complaint against Payne with the OIO. Id . ¶ 28. The same day, Lundquist told Payne "to find another job by September 2008 or he would be let go." Id . ¶ 29. On July 1, 2008, Payne was told that he "would be removed from his supervisory role at the OCFO's Office of Contracts" and in August 2008, Payne's change in status was announced officially. Id . ¶¶ 30-31. In October 2008, Payne "was given an even more limited role" at the OCFO. Id . ¶ 32.

On January 9, 2009, Payne was terminated from the OCFO. Payne alleges that after his termination, "the OCFO made several defamatory statements about him to the public through major area newspapers, which impugned his reputation and marketability in the work place." Payne I , 773 F.Supp.2d at 94 (alterations, internal quotation marks, and citations omitted).

The Washington Post article at issue included a statement from Mr. Payne that he and other D.C. officials were pressured to reopen the lottery contract for bids, as well as a statement in response from the CFO's office that "no member of the City Council or their staffs nor anyone from the executive branch has made any attempt to influence the contract bidding process in any way."

Id. (alterations omitted) (quoting Tim Craig & Nikita Stewart, Rule Changes May Help LTE Keep Contract, Wash. Post, Apr. 20, 2009). Payne alleges that the "latter statement was false and effectively stated that Mr. Payne lied about facts." Id . (alterations and internal quotation marks omitted).

After Payne was terminated from the OCFO, he worked temporarily at "the District of Columbia Housing Authority [("DCHA")] as legal counsel, advising the procurement director." Defs.' Stmt. ¶ 4 (internal quotation marks omitted); Pl.'s Stmt. of Genuine Issues of Mat. Facts in Dispute ¶ 3(d). Payne also started a company, Public Procurement Solutions, where he "performed work for the District of Columbia Office of Contracting and Procurement, " "the Housing Authority of the City of San Buenaventura, California, " and "a Virginia federal contracting firm called Interactive Technologies Group." Defs.' Stmt. ¶¶ 5-8. Payne earned approximately $50, 000 from his work with Public Procurement Solutions. Id . ¶ 9.

Payne filed a five-count amended complaint against the defendants. Count One alleges that the defendants violated the Fifth Amendment by depriving Payne of a liberty interest without due process. Counts Two, Three, and Four charge that the defendants retaliated against Payne. Count Five alleges that the defendants intentionally inflicted emotional distress on Payne.[3]

The defendants move for summary judgment on Payne's DC-WPA claim arguing that the majority of the allegedly retaliatory actions are barred by the statute of limitations and that Payne cannot show any causal connection between his allegedly protected disclosures and his termination from the OCFO. The defendants further allege that Payne cannot make out a constitutional defamation claim.

DISCUSSION

Summary judgment may be granted when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A dispute is "genuine" "where the evidence is such that a reasonable jury could return a verdict for the non-moving party.'" Dozier-Nix v. District of Columbia , 851 F.Supp.2d 163, 166 (D.D.C. 2012) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986)). "To survive a motion for summary judgment, the nonmoving party must provide evidence showing that there is a triable issue as to an element essential to that party's claim." Banks v. Vilsack, 932 F.Supp.2d 185, 189 (D.D.C. 2013) (internal quotation marks omitted); see also Moore v. Hartman , 571 F.3d 62, 66 (D.C. Cir. 2009). "It is ...


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