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Gouse v. District of Columbia

United States District Court, District of Columbia

January 14, 2019

BETH GOUSE, Plaintiff,
v.
DISTRICT OF COLUMBIA, Defendant.

          MEMORANDUM OPINION AND ORDER

          RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE.

         Plaintiff, a former employee of Saint Elizabeths Hospital in Washington, D.C., seeks documents relating to findings contained in a portion of a report issued by the D.C. Office of the Auditor (“Auditor”), which was prepared with the assistance of the Council for Court Excellence (“CCE”). Dkt. 20. Those findings and the investigation on which they were premised arguably bear on Plaintiff's claims that she was not selected to serve as the Chief Executive Officer (“CEO”) of Saint Elizabeths and, after having served as the interim CEO, was not reinstated to her prior position as Chief Clinical Officer because of her race and sex and because she had engaged in protected equal employment opportunity activity. Dkt. 1 at 2-3 (Compl. ¶¶ 4-5). The Auditor and CCE (“movants”) have filed a joint motion to quash Plaintiff's subpoenas on three grounds. They first, and most extensively, argue that the subpoenas seek documents protected by the District's Speech or Debate Statute, D.C. Code. § 1-301.42, which is modeled on the Speech or Debate Clause of the U.S. Constitution, art. I, § 6, cl. 1. Dkt. 20 at 10-21. Second, they invoke the deliberative process privilege. Id. at 24. Third, they contend that the subpoenas are unduly burdensome and that, at a minimum, Plaintiff should be required to exhaust the ordinary discovery process before burdening non-parties. Id. at 22-25.

         As explained below, the Court is unconvinced that the specific documents at issue are protected by the Speech or Debate Statute. At the same time, much of what Plaintiffs seeks might be protected by the deliberative process privilege, and it is also possible that the subpoenas are, at least in part, unduly burdensome or repetitive of discovery that Plaintiff may be able to obtain in the ordinary course. On the present record, however, movants have not carried their burden of demonstrating that any specific documents are privileged or that the subpoenas are unduly burdensome. The Court will, accordingly, deny the pending motion to quash. But, in light of the sensitivities posed by discovery seeking, among other things, notes of interviews of current and former employees expressing their candid assessment of other government employees and officials, the Court will grant movants leave to file an amended motion to quash on grounds of deliberative process privilege and undue burden supported by a more detailed showing.

         I. BACKGROUND

         A. Factual Background

         Plaintiff Beth Gouse, a Caucasian woman, worked as a clinical psychologist at Saint Elizabeths Hospital in Washington, D.C. from 1993 until 2016. Dkt. 1 at 1-2 (Compl. ¶¶ 1-4). During her tenure at Saint Elizabeths, Dr. Gouse received a number of promotions, eventually becoming Chief Clinical Officer in 2013. Id. at 1 (Compl. ¶ 1). In June 2015, Gouse was named interim CEO of the hospital, and one month after starting her interim position, she applied for the permanent CEO position. Id. (Compl. ¶ 1). In February 2016, however, the Director of the D.C. Department of Behavior Health (“DBH”) informed Gouse that she had not been selected, id. at 10 (Compl. ¶ 48), and Gouse later learned that the Director had chosen another applicant, Dr. James Kyle, for the CEO position, id. at 11 (Compl. ¶ 52). When Gouse requested to return to her previous role as Chief Clinical Officer, Saint Elizabeths informed Gouse that her employment would be terminated in March 2016. Id. at 11-12 (Compl. ¶¶ 53-55).

         Gouse alleges that her treatment was the result of discrimination based on race, sex, and reprisal. Id. at 2-3 (Compl. ¶ 5). She seeks to prove her case by demonstrating, in part, that Dr. Kyle, an African American male, “was not as qualified” as she was for the CEO position, id. at 2 (Compl. ¶ 2), and that the Director of DBH re-assigned several of Gouse's job duties to an African American female, Dr. Johnson, even though Dr. Johnson “had no supervisory authority to provide oversight or management of Saint Elizabeths patients, ” id. at 7 (Compl. ¶ 34), and was allegedly “investigated for abuse” due to her “behavior towards patients and staff, ” id. at 6-7 (Compl. ¶¶ 30-31).

         B. The D.C. Auditor and the Auditor's Report

         The Office of the District of Columbia Auditor is a position that exists pursuant to the District of Columbia's Charter. See D.C. Code § 1-204 et seq. The Auditor is “appointed by the Chairman” of the D.C. Council-the District's legislative branch-“subject to the approval of a majority of the Council, ” D.C. Code § 1-204.55(a), and is charged with “conduct[ing] a thorough audit of the accounts and operations of the government of the District in accordance with such principles and procedures and under such rules and regulations as [the Auditor] may prescribe.” Id. § 1-204.55(b). In carrying out these duties, the Auditor has “access to all books, accounts, records, reports, findings and all other papers, things, or property belonging to or in use by any department, agency, or other instrumentality of the District government and necessary to facilitate the audit.” Id. § 1-204.55(c). Once finalized, the Auditor must “submit his [or her] audit reports to the Congress, the Mayor, and the Council.” Id. § 1-204-55(d). Those reports “shall include such comments and information as the District of Columbia Auditor may deem necessary to keep the Congress, the Mayor, and the Council informed of the operations to which the reports relate” and shall contain “such recommendations with respect thereto as [s]he may deem advisable.” Id. After receiving the report, the Council must make the “report, together with such other material as it deems pertinent thereto, available for public inspection.” Id. § 1-204.55(e). The statute further requires that the “Mayor . . . state in writing to the Council, within an appropriate time, what action” she has “taken to effectuate the recommendations made by the District of Columbia Auditor” in the reports. Id. § 1-204.55(f).

         About three months after Plaintiff filed this lawsuit, the Auditor issued a report entitled Improving Mental Health Services and Outcomes for All: The D.C. Department of Behavioral Health and the Justice System (“Report”). See Dkt. 22 at 12-39 (excerpts of the Report).[1] As the Auditor explained in the cover letter conveying the report to Councilmembers Vincent Gray and Charles Allen, the Report was prepared by CCE “for the Office of the D.C. Auditor” and was designed to provide “a comprehensive review of the Department of Behavioral Health . . . and its work with justice-involved individuals and with the criminal justice system as a whole.” Id. at 17. CCE is a “nonprofit, nonpartisan civic organization” that “identifies and proposes solutions by collaborating with diverse stakeholders to conduct research, advance policy, educate the public, and increase civic engagement.” Dkt. 20-2 at 12.

         Although the 175-page Report addresses a wide range of topics, including “[f]unding [i]ssues, ” “[m]ethods of [d]elivery, ” and “[f]orensic [p]rocesses, ” id. at 14, Gouse's interest in the Report is limited to five pages, which discuss “the performance of DBH leadership” in the time surrounding her termination. See Dkt. 22 at 41 (quoting Dkt. 20-2 at 16). The relevant passages can be reproduced in full:

[A]s reported to CCE by several interviewees, one of the most notable actions by the current Directors was their termination of and request for the resignation of several members of DBH and [Saint Elizabeths Hospital] upper management who had helped see the Department through significant improvements, including exiting federal oversight. For example, in early 2016, the Mayor and the Director of DBH replaced the interim CEO [Gouse], a forensic psychologist with 20 years of experience at the hospital who had helped see the hospital through the U.S. Department of Justice (DOJ) oversight, with a candidate who seriously misrepresented his credentials and was not qualified for the position. In fact, D.C. regulators had previously found the candidate unqualified to work at the University of the District of Columbia as the “[Registered Nurse] director of nursing for non-credit programs, ” a position to which the Executive Office of the Mayor also appointed him.

Id. at 34. The “candidate” referred to is Dr. Kyle, the individual ultimately selected as CEO. A few pages later, the Report discusses Dr. Johnson, the Director of DFS, who Gouse alleges received several of Gouse's job duties:

Almost everyone with whom CCE spoke raised concerns about the management style and behavior of the Director of DFS. Current and former DBH staff, stakeholders, CSA staff, and consumer advocates described the management style and behavior as “vindictive, ” “punitive, ” “volatile, ” and “adversarial.” Many expressed concerns about the number of staff and patient complaints filed against the Director. Many DFS staff agreed to speak with CCE only on the condition of anonymity, asserting a fear of retribution from the DFS Director.
Moreover, after investigating six complaints filed against the Director in 2008 ranging from lack of professional deportment to verbal abuse of staff and patients, DBH's Office of Accountability issued a 10-page report that reached the following conclusions:
. . . the overall findings of this report support the position that [the current Director of DFS] behaved in a manner towards patients and staff members that could reasonably be considered to be argumentative, loud, offensive, abusive, and unprofessional. . . .
Despite the findings of that report, the Director of DFS was promoted to their current position. Court records further show that in FY 2017, the Director of DFS was the target of two Equal Employment Opportunity (EEO) complaints, which DBH asserted were both unsubstantiated.

Id. at 38.

         C. ...


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