United States District Court, District of Columbia
PATRICIA D. LEWIS, Plaintiff,
GOVERNMENT OF THE DISTRICT OF COLUMBIA, et al., Defendants.
E. BOASBERG, UNITED STATES DISTRICT JUDGE.
response to an Order from then-Mayor Vincent Gray, the D.C.
Department of Human Resources determined that all Office of
Chief Medical Examiner employees would be subject to random
drug and alcohol testing upon relocation to the new
Consolidated Forensic Laboratory building. Plaintiff Patricia
Lewis, a former OCME employee, objected and was ultimately
terminated in April 2013. She responded with this suit
alleging a host of constitutional and common-law claims
against the District and several individual officials.
Deciding earlier Motions to Dismiss, the Court narrowed both
the claims and the number of Defendants. Following discovery,
both sides have now filed Cross-Motions for Summary Judgment
on the remaining counts. As genuine issues of material facts
loom on some, the Court will deny the Motions in part, but
enter judgment for Defendants on two causes of action.
both sides have filed Cross-Motions, the facts cannot be set
forth in the light most favorable to the non-moving party. As
a result, the Court recounts the undisputed facts, while
noting specific disagreements about others.
better part of a decade, Lewis worked as a “[Human
Resources] Advisor, Management Liaison Specialist” in
D.C.'s Office of Chief Medical Examiner. See ECF
No. 7 (Am. Compl.), ¶ 20. OCME's duties include
autopsies as well as other forensic and medico-legal
investigations. See generally D.C. Code §
5-1401 et seq. From the time she was hired until
October 2012, OCME was located in an office building on
Massachusetts Avenue in Southeast Washington. See
Am. Compl., ¶ 24.
point, the city undertook a plan to design and construct the
Consolidated Forensic Laboratory. This new laboratory would
house under one roof a number of city departments, including
OCME, the Department of Forensic Sciences, and several
divisions of the Metropolitan Police Department, such as the
Firearms and Fingerprint Examination Division, the DNA
laboratory, and the Forensic Sciences Services Division.
See D.C. Council Resolution No. 19-726 § 2(b)
(Dec. 4, 2012). On June 18, 2012, Mayor Gray signed Order
2012-84, providing authority for the Director of the D.C.
Department of Human Resources to “identify and
designat[e] high-risk or sensitive positions” for
employees who would have a duty station at the CFL.
See Def. MSJ, Exh. C (Mayor's Order) at 1.
Employees so designated would be subject to “background
checks, investigations, mandatory criminal background checks,
and[/or] testing for controlled substance use.”
18, 2012, Charles Tucker, DCHR General Counsel, and other
members of his department held a meeting at OCME and
distributed letters informing the staff that the office would
be moving to the CFL. Pursuant to the Mayor's Order, the
letter advised that, “due to the nature of work
performed in the CFL, employees occupying positions which
have duty stations” there would be “subject to
mandatory criminal background checks and testing for
controlled substance use.” Def. MSJ, Exh. E (Letter
from DCHR Director Shawn Stokes to Lewis). The letter
indicated that recipients could contact Plaintiff, the
agency's HR Advisor, for additional information, and it
directed policy-related questions to DCHR's Legal and
Compliance Administration. Id.
meeting, DCHR also distributed several forms, including an
“Individual Notification of Requirements Form for Drug
and Alcohol Testing.” Def MSJ, Exh. G at 1 (Notice and
Acknowledgment Form). Citing the Mayor's Order, it
[T]his notice informs you that you have been appointed to, or
you currently occupy, either as an employee or volunteer, a
covered position that makes you subject to drug and alcohol
testing while assigned. Covered positions include
protection-sensitive positions that affect the health, safety
and welfare of the general public. . . . As an appointee,
employee, or unsupervised volunteer in a covered position at
a District government agency, you are hereby informed that
this District agency is subject to drug and alcohol testing.
Thirty (30) days after you acknowledge receipt of this
advance written notice, you will be subject to drug and
alcohol testing, unless you acknowledge a drug or alcohol
problem during the 30-day notification period.
Id. The bottom portion of the notice, titled
“Acknowledgement of Receipt, ” required the
employee's signature, which would be an admission that
she “currently occup[ied] a protection-sensitive
position that is subject to drug and alcohol testing.”
Id. Plaintiff voiced her objections to the policy at
the meeting and refused to sign the form. See Def.
Statement of Facts, ¶ 33. So concludes the facts from
that day upon which the parties agree.
version of the meeting is as follows. According to her,
Tucker “rude[ly]” descended upon the OCME staff,
informing them of the move to the CFL and the resulting
requirement “to undergo a background check and drug
testing.” Pl. SOF, ¶ 12. He told them that they
had until 4:00 p.m. to sign and return the forms or they
would be fired. Id., ¶ 14. Several employees,
including Lewis, were taken aback by the request.
Id., ¶¶ 39-42. Lewis “raised her
hand and asked questions in a way that was neither
belligerent nor impolite.” Id., ¶ 29. She
questioned why she would need to undergo such testing when
her job responsibilities would not change once she moved to
the CFL. See Pl. Reply, Attach. 2 (Declaration of
Patricia Lewis), ¶ 14.
dispute nearly all of Lewis's account. According to them,
Tucker held the meeting to inform OCME staff about the move
to the CFL and the accompanying drug-and-alcohol-testing
requirements. He did not give an ultimatum or tell anyone
that they would have to undergo drug and alcohol testing, but
merely informed them that they would be subject to substance
testing “as a condition of relocating to the
CFL.” Def. SOF, ¶ 12. Tucker denies that he was
anything other than the “messenger, ” sent to
“carry out a mayor's directive.” Pl. MSJ,
Exh. 1 (Deposition of Charles Tucker) at 46:22. Defendants
aver that employees were asked to sign the acknowledgment
form without any time pressure, at which point Lewis
“disrespectful[ly]” voiced her objection to the
Mayor's Order. See Def. SOF, ¶ 29.
days after the meeting, Plaintiff sent a grievance letter to
Tucker protesting the policy and claiming that he was
“violating [her] rights to be made aware of any change
in working conditions and conditions of employment.”
Def. MSJ, Exh. H (July 20 Letter from Lewis to Tucker) at 1.
Lewis stated that she “was hired into a non-sensitive
position that has not been re-classified nor designated as
high risk” and would not sign the acknowledgment form
until DCHR conducted a “reclassification and risk
assessment.” Id. She further alleged that her
direct supervisor, Beverly Fields, retaliated against her for
speaking up at the meeting. Id. at 2. Plaintiff
acknowledged that she had “asked a lot of questions in
the meeting, ” but attributed her inquisitiveness to
surprise. Id. at 2. “As the agency's HR
Advisor, ” Lewis noted that she “might have taken
a different approach if [she] had prior knowledge or
involvement in this process.” Id. She lamented
that “no one at this agency nor the DC DCHR ha[d]
involved [her] in any way about this relocation and the
requirements that would be imposed, ” despite the fact
that her “name was included in every employee's
letter as being the point of contact.” Id.
Plaintiff maintained that she “had every right to
protect [her] own best interests” and that the Agency
as a whole was “caught totally off guard by this
process.” Id. On August 30, 2012, Tucker
denied the grievance as unauthorized by the District
Personnel Manual. See Def. MSJ, Exh. I.
October 2012, DCHR Director Shawn Stokes sent Lewis two
follow-up notices, requesting that she sign and return the
notice-and-acknowledgment forms, but Plaintiff refused to do
so. See Def. Exhs. J-K. The notices further advised
that “corrective and/or adverse action” could
result if she did not “comply with this process”
by November 8, 2012. In late October, OCME moved to the CFL.
See Def. MSJ, Exh. J (Notification of Relocation to
CFL). On October 23, Lewis attempted to move some of her
files into the CFL but was escorted out of the building.
See Def. SOF, ¶ 69. She alleges that she had
supervisor approval to move, but Defendants maintain that she
was not cleared to enter the building because she had still
not signed the acknowledgment forms. See Pl. SOF,
¶¶ 69, 84; Def. MSJ, Exh. K (October 23, 2012,
Letter from Stokes to Lewis). While the rest of the OCME
staff moved to the CFL, Lewis thus remained alone at the
Massachusetts Avenue building. The parties disagree as to her
working conditions there but, suffice it to say, they were
not ideal. The building was old and had issues with the heat,
elevators, and phones. See Def. SOF, ¶¶
44, 46-47. Plaintiff nonetheless continued to work there
until she received an Advance Written Notice of Proposed
Removal on January 3, 2013, when she was placed on
administrative leave. See Def. MSJ, Exh. L; Def.
SOF, ¶ 83. The letter charged her with “neglect of
duty and insubordination” on three occasions: (1)
refusing to sign the notice-and-acknowledgment forms on July
18; (2) refusing to sign the forms after the October
follow-up letters; and (3) attempting to move into the CFL
without being cleared. Id. at 1-2. On April 9, 2013,
the District officially terminated Lewis based on the charges
in the January 3 letter. See Def. MSJ, Exh. M
(Notice of Final Decision on Proposed Removal).
two years after her termination, Lewis filed this suit
against the District, former Mayor Gray, Tucker, Beverly
Fields (OCME Chief of Staff and Lewis's supervisor), Paul
Quander (former Deputy Mayor for Public Safety), and an
unspecified group of John Does. See Am. Compl. at 1.
The Complaint alleged a bevy of claims, some against only the
District, some against only individuals, and some against
all. On August 10, 2015, the District, Gray, and Fields filed
a Motion to Dismiss, which the Court granted in part.
See ECF Nos. 30-31. Specifically, the Court
dismissed Counts I (wrongful termination), III-VII (alleging
Intentional Infliction of Emotional Distress and violations
of Title VII, the D.C. Human Rights Act, § 1983, and the
Genetic Information Nondiscrimination Act), X (defamation),
and XI (Declaratory and Injunctive Relief). The Court also
dismissed Lewis's ADA claim except to the extent that she
alleged the District had made an improper inquiry into her
medical history. The Court further dismissed Gray and Fields
as Defendants, finding that any claim against them in their
official capacities was redundant given Plaintiff's
naming of the District, and any individual-capacity claim did
not sufficiently assert their personal involvement.
Defendants Tucker and Quander separately filed Motions to
Dismiss, and the Court denied the former but granted the
latter in a separate Opinion. See ECF No. 34. The
prior Opinions, therefore, left standing the District and
Tucker as the sole remaining Defendants and the following
claims: violations of the Fourth Amendment (Count II), ADA by
making an improper medical inquiry (Count VIII), First
Amendment (Count IX), as well as claims for defamation (Count
X) and IIED (Count VI).
conducted discovery for over a year, the parties now submit
Cross-Motions for Summary Judgment. Plaintiff does not appear
to have conjured up any use for the Doe Defendants, and she
also voluntarily dismisses her defamation claim. See
Pl. MSJ at 39. The parties' dueling Motions, therefore,
address the remaining causes of action.
faced with cross-motions for summary judgment, th[e C]ourt
must review each motion separately on its own merits
‘to determine whether either of the parties deserves
judgment as a matter of law.'” Family Trust of
Mass., Inc. v. United States, 892 F.Supp.2d 149, 154
(D.D.C. 2012) (quoting Rossignol v. Voorhaar, 316
F.3d 516, 523 (4th Cir. 2003)). Summary judgment is
appropriate “only if one of the moving parties is
entitled to judgment as a matter of law upon material facts
that are not genuinely disputed.” Airlie Foundation
v. IRS, 283 F.Supp.2d 58, 61 (D.D.C. 2003) (citing
Rhoads v. McFerran, 517 F.2d 66, 67 (2d Cir. 1975));
see also Fed.R.Civ.P. 56(a); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-48 (1986); CEI Wash.
Bureau, Inc. v. DOJ, 469 F.3d 126, 129 (D.C. Cir. 2006).
A fact is “material” if it is capable of
affecting the substantive outcome of the litigation. See
Liberty Lobby, 477 U.S. at 248; Holcomb v.
Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A dispute is
“genuine” if the evidence is such that a
reasonable jury could return a verdict for the non-moving
party. See Scott v. Harris, 550 U.S. 372, 380
(2007); Liberty Lobby, 477 U.S. at 248;
Holcomb, 433 F.3d at 895. “A party asserting
that a fact cannot be or is genuinely disputed must support
the assertion” by “citing to particular parts of
materials in the record” or “showing that the
materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Fed.R.Civ.P.
considering a motion for summary judgment, “[t]he
evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in [their]
favor.” Liberty Lobby, 477 U.S. at 255;
see also Mastro v. PEPCO, 447 F.3d 843, 850 (D.C.
Cir. 2006); Aka v. Wash. Hosp. Ctr., 156 F.3d 1284,
1288 (D.C. Cir. 1998) (en banc). The Court must
“eschew making credibility determinations or weighing
the evidence.” Czekalski v. Peters, 475 F.3d
360, 363 (D.C. Cir. 2007).
defeat summary judgment, however, the Opposition must consist
of more than mere unsupported allegations or denials and must
be supported by affidavits, declarations, or other competent
evidence, setting forth specific facts showing that there is
a genuine issue for trial. See Fed.R.Civ.P. 56(e);
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
The non-movant is required to provide evidence that would
permit a reasonable jury to find in its favor. Laningham
v. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the
non-movant's evidence is “merely colorable”
or “not significantly probative, ” summary
judgment may be granted. Liberty Lobby, 477 U.S. at
reminder to the readers keeping score, the remaining counts
against the District are: 1) First Amendment violation; 2)
Fourth Amendment violation; and 3) ADA violation. Against
Tucker, Plaintiff presses claims under the Fourth Amendment
and for intentional infliction of emotional distress. The
Court addresses each below.