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Lewis v. Government of District of Columbia

United States District Court, District of Columbia

October 18, 2017




         In 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.

         I. Background

         Because 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.

         A. Factual History

         For the 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.

         At some 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.” Id.

         On July 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.

         At the 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 stated:

[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.

         Plaintiff's 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.

         Defendants 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 “belligerent[ly]” and “disrespectful[ly]” voiced her objection to the Mayor's Order. See Def. SOF, ¶ 29.

         Two 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.

         In 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).

         B. Procedural History

         Nearly 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).

         Having 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.

         II. Legal Standard

         “When 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. 56(c)(1).

         In 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).

         To 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 249-50.

         III. Analysis

         As a 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.

         A. First ...

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