United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendants' motions for
summary judgment. Dkt. 96; Dkt. 97. Plaintiff Betty Clayton,
the former Director of DC. Government Operations of the
District of Columbia National Guard ("DCNG"), is
suing the District of Columbia ("the District") and
the DCNG for unlawful retaliation and sex discrimination
under Title VII of the Civil Rights Act of 1964, and for
unlawful retaliation under D.C. law. Clayton alleges that her
career position was converted to at-will employment and that
she was subsequently terminated because of her various
whistleblowing activities, and she further alleges that she
was terminated because of her sex. Defendants counter that
Clayton was fired because of her poor job performance.
Neither the District nor the DCNG, however, can identify the
person who made the decision to terminate Clayton, anyone who
can explain how the decision was made, or anyone who can
offer a contemporaneous account of why the decision was made.
light of that evidentiary lacuna and the fact that Clayton
has adduced sufficient evidence for a reasonable jury to
infer that her termination was in retaliation for reporting
another employee's sexual harassment allegations against
the Commanding General of the DCNG, the Court will deny both
motions for summary judgment as to Clayton's Title VII
retaliation claims. The Court will, however, grant both
motions as to Clayton's sex discrimination claims. With
respect to Clayton's D.C. law claims, the Court will
grant summary judgment in favor of the District as to
Clayton's retaliation claim under the D.C. False Claims
Act and will deny summary judgment as to Clayton's
retaliation claim under the D.C. Whistleblower Protection
Act. The following claims, accordingly, remain in the case:
Clayton's Title VII retaliation claims against both
defendants and Clayton's D.C. Whistleblower Protection
Act claim against the District.
not the Court's first opinion in this long-running
employment discrimination and retaliation case. See
Clayton v. District of Columbia, 931 F.Supp.2d 192
(D.D.C. 2013) (Roberts, C.J.) ("Clayton F); Clayton
v. District of Columbia, 999 F.Supp.2d 178 (D.D.C. 2013)
(Roberts, C.J.) ("Clayton II”); Clayton v.
District of Columbia, 117 F.Supp.3d 68 (D.D.C. 2015)
(Moss, J.) ("Clayton III”). Since the
inception of her suit in 2011, Clayton has partially survived
multiple motions to dismiss, Dkt. 34; Dkt. 72, twice amended
her complaint, Dkt. 22; Dkt. 45, and engaged in extensive
discovery, including taking over a dozen depositions,
see Dkt. 115. For the purposes of resolving
Defendants' pending motions for summary judgment, the
Court will only briefly recount the relevant background
before delving into the facts in the analysis of the
parties' respective arguments.
D.C Government Operations Division
23, 2008, Clayton was appointed Director of the D.C.
Government Operations Division (the "Division") of
the DCNG, which was then classified as a career service
position. Dkt. 96-1 at 3 (DCNG Statement of Undisputed
Material Facts ("SUMF") ¶ 11); Dkt. 97 at 50
(District SUMF If 1); Dkt. 106 at 83 (Clayton Statement of
Material Facts ("SMF") ¶¶
4-5).The Division "coordinate[s]
operational programs so that the DCNG can efficiently respond
to natural and civil emergencies in the District." Dkt.
96-1 at 1 (DCNG SUMF If 2). Clayton interviewed with a panel
of DCNG employees and Erroll Schwartz, then Adjunct General
of the DCNG; she was formally appointed to her position by
the District. Dkt. 106 at 82-83 (Clayton SMF ¶¶
2-4). As the Director, Clayton supervised at least six
employees, "mak[ing] sure they got their work done on
time, mak[ing] sure [the Division was] coordinating properly
with D.C. government downtown, and [managing] the budget for
the agency." Dkt. 97 at 50-51 (District SUMF
parties dispute whether, at the time of Clayton's tenure
as Director, the Division was an entity within the District
government or within both the DCNG and the District
government. Compare Dkt. 96-1 at 2 (DCNG SUMF
¶. 3) ("District Government Operations is a
District Division within the District City
Administrator's Office."), and Id. (DCNG
SUMF ¶ 5) ("District Government Operations
employees working at the Armory are District employees
subject to District, not DCNG, policies procedures, and
guidelines."), with Dkt. 106 at 83-84 (Clayton
SMF If 8) ("[F]rom the 2008-2010 timeframe[, ] ... the
DC Government Operations [was] simultaneously a Directorate
within Joint Force Head Quarters, DC National Guard[, ] and
an agency of the Government of the District of
Columbia."). They also dispute the nature of
Clayton's reporting relationship with the City
Administrator's Office and the Commanding General of the
DCNG. Compare Dkt. 96-1 at 2 (DCNG SUMF ¶ 4)
("Neil Albert, as District City Administrator, was . . .
Clayton's supervisor."), with Dkt. 106 at
84 (Clayton SMF If 10) ("Clayton reported to both the
commanding general and the mayor and city
parties agree, however, that, on August 27, 2010, D.C.
Attorney General Peter Nickels addressed the legal status of
the Division in a memorandum to the Commanding General of the
DCNG at the time, Erroll Schwartz. See Dkt. 107-60
(Nickels Memo). That memorandum stated, in relevant part: the
"Division, a unit that supports the DCNG, is a
subordinate agency of the Mayor of the District of
Columbia." Id. at 2 (Nickels Memo). It further
explained that "the Mayor shall exercise supervisory
authority over the Director of the Division on matters that
pertain to the personnel affairs of District employees,"
but that, "for matters that pertain exclusively to the
National Guard, while the Division Director is in the chain
of command of the Mayor and the City Administrator, she also
has an informal, dotted-line reporting relationship with the
Commanding General." Id. at 3 (Nickels Memo).
Clayton's Alleged Whistleblowing Activities
served as Director of the Division from June 2008 to October
2010. See Dkt. 96-1 at 3 (DCNG SUMF ¶ 11) (June
23, 2008 appointment date); Dkt. 97-17 at 2 (Oct. 26, 2010
Separation Notice). She alleges that, during her tenure, she
reported numerous instances of "potential wrongdoing at
the DCNG" and that, "[a]s a result...[, ] [she] was
terminated from employment by the District of Columbia and
the District of Columbia National Guard." Dkt. 45 at 2-3
(Second Amd. Compl. ¶¶ 11-12). Her reports fell
into three categories.
Clayton alleges that she reported the following instances of
"misappropriation of funds ...[, ] fraud, waste, and
abuse," id. at 7 (Second Amd. Compl.), within
the District government and the DCNG:
• the improper restoration of leave for Charlotte
Clipper, the District Government Operations Human Resources
Manager, id. (Second Amd. Compl. ¶ 49);
• the improper release of incentive awards to District
of Columbia employees, id. at 8 (Second Amd. Compl.
• the improper "steering" of a District of
Columbia bus contract, id. (Second Amd. Compl.
• the inappropriate co-mingling of DCNG youth leader
camp § 501(c)(3) funds and District of Columbia local
funds, id. (Second Amd. Compl. ¶ 58);
• the undisclosed federal and local tax withholdings of
a federal security guard contract, id. (Second Amd.
Compl. ¶ 59);
• the improper use of District of Columbia credit cards
by employees on numerous occasions, id. (Second Amd.
Compl. ¶ 60);
• the un-inventoried furniture and equipment purchases
from 2007, id. at 9 (Second Amd. Compl. ¶ 64);
• the creation of two federal positions by the DCNG for
the purpose of "transferring two employees from the
District of Columbia budget to the federal budget,"
id. (Second Amd. Compl. ¶ 65); and
• the "potential United States security risks"
posed by her predecessor, Anthony Devassey, who had
"ordered and saved certain military research,"
from her allegations in the Second Amended Complaint,
id. at 7-9 (Second Amd. Compl. fflf 49-65), and her
responses to the District's interrogatories, Dkt. 97-18
(PI. Resp. to District's Interrogs.), however, Clayton
has pointed to no additional evidence in her SMF to
corroborate the above reports, see Dkt. 106 at
Clayton alleges that, in addition to the incident involving
Charlotte Clipper described above, she attempted to terminate
Clipper on numerous occasions for serious violations of the
Division's policies, but that DCNG staff, "on behalf
of [the] General[, ] . . . continuously attempted to block
all proposed disciplinary action against. . . Clipper."
Dkt. 45 at 6-7 (Second Amd. Compl. ¶¶ 36, 37, 43).
In support of her claim, Clayton's SMF cites to her own
deposition testimony. See Dkt. 106 at 86 (Clayton
SMF ¶ 22) (citing Dkt. 107-14 at 8-9 (Clayton Dep.)).
The DCNG disputes this assertion. It contends that the
"DCNG, with the permission and coordination of the
District, investigated all of. . . Clayton's allegations
and reported the findings to the District City Administrator
for appropriate action." Dkt. 96-1 at 4 (DCNG SUMF
¶ 19) (citing Dkt. 96-24 (Ex. W) (Comentale Email to
Forrest) (Aug. 14, 2008)).
and most significantly, Clayton reported Tamara Jones's
sexual harassment allegations against General Schwartz to
Linda Brown, the District of Columbia Human Resources Equal
Employment Opportunity ("EEO") Officer in January
2010, who then referred the matter to the D.C. Office of
Human Rights ("OHR"). Dkt. 107-18 at 2 (Brown Email
to Jones) (Jan. 14, 2010); Dkt. 107-44 at 2, 3 (Jan. 15, 2010
Notice to OHR). It is undisputed that Jones, General
Schwartz's administrative assistant, relayed to Clayton
that she "had been a victim of sexual harassment/assault
by [General Schwartz]" and that she "felt th[at]
[she] had been intimidated and threatened by [General
Schwartz] not to act/file a complaint," and that she had
sought Clayton's counsel. Dkt. 107-47 at 3 (Jones Email
to Sharpe) (May 10, 2010) (listing witnesses and describing
their involvement); see also Dkt. 107-14 at 12-13
(Clayton Dep.) (relaying same conversation).
parties disagree about the ensuing events. According to
Clayton, she was approached by Sergeant Christopher Martin,
the DCNG's EEO Officer, who informed her that he had
discussed the allegations with General Schwartz and demanded
to know her involvement in the case. Dkt. 107-14 at 13
(Clayton Dep.). As he left the office, he allegedly added:
"I never lose a case," or words to that effect.
Id. Clayton further testified that, in January 2010,
April 2010, and September 2010, General Schwartz himself
threatened her employment, stating, "We'll see
who's still sitting in that chair come October 1."
See Id. at 14 (Clayton Dep.). General Schwartz also
requested that Nickels clarify the legal status of the D.C.
Government Operations Division and the DCNG Commanding
General's authority over the Division's employees.
See Dkt. 107-60 at 2 (Nickels Memo). The DCNG
counters that it "was unaware of. . . Clayton's
alleged involvement in Jones's discrimination complaint
prior to . . . Clayton's filing [of] this lawsuit."
Dkt. 96-1 at 7 (DCNG SUMF ¶ 38); see also Dkt.
115-6 at 28 (Schwartz Dep.) (testifying that he was unaware
of Clayton's involvement prior to the lawsuit). For its
part, the District does not dispute the occurrence of General
Schwartz's threats, but contends that they were the
result of interpersonal disputes with Clayton, see
Dkt. 97 at 53 (District SUMF ¶¶ 17-19), including
one that occurred in June or July 2009, before Clayton
reported that General Schwartz had allegedly sexually
harassed Jones, see Dkt. 45 at 10 (Second Amd.
Compl. ¶ 68).
Clayton's Loss of Career-Position Protections and
undisputed that, on September 27, 2010, Clayton received a
letter from Brender Gregory, the Director of DC. Office of
Human Resources, notifying Clayton that her career position
was being converted to the "Management Supervisory
Service" ("MSS")-that is, at-will
employment-effective October 10, 2010, "in accordance
with the [MSS] transition provisions of DC. official Code
§ 1-609.58(a); and legal opinion from Peter J. Nickels,
Attorney General for the District of Columbia." Dkt.
107-35 at 2 (Sept. 27, 2010 Notice). The letter further
advised that, if Clayton "decline[d] appointment to the
[MSS]," she would "receive priority for appointment
to a vacant Career Service position within [her] agency, if
available," but that, "[i]f no such vacant position
is available," she would receive 30-days' notice of
separation and be terminated. Id. The next day,
Clayton received further notice that "all other Career
Service supervisory and managerial staff in [the
Division]" at "grade level 11 and above" would
be "transitioned into the MSS," and the letter
asked Clayton to identify all positions that qualified for
conversion within her division. Dkt. 97-10 at 2-3 (Sept. 28,
2010 Notice). Clayton elected to accept her MSS appointment
on October 5, 2010. Dkt. 97-9 at 5 (Acceptance of MSS
October 26, 2010, Clayton received notice of her termination
from the Office of the City Administrator. Dkt. 97-17 at 2
(Oct. 26, 2010 Separation Notice). The parties disagree about
the reasons for Clayton's termination. The separation
letter, signed by the City Administrator, Neil Albert, did
not contain any reasons for Clayton's termination.
See Id. at 2-3 (Oct. 26, 2010 Separation Notice). He
later testified at his deposition: "I didn't make
the decision to remove . . . Clayton as far as I can
recall." Dkt. 115-12 at 6 (Albert Dep.). Other potential
decisionmakers-Gregory, General Schwartz, and the Mayor at
the time, Adrian Fenty-likewise denied responsibility for
making the decision to terminate Clayton and denied knowledge
of who made that decision or why. See Dkt. 107-33 at
7 (Gregory Dep.); Dkt. 107-59 at 2 (Fenty Deck ¶ 2);
Dkt. 107-20 at 18 (Schwartz Dep.). The District nevertheless
maintains that Clayton was terminated because of her job
performance: specifically, because "the City
Administrator . . . had expressed frustration with [her] lack
of cooperation with [his office]," Dkt. 97 at 56
(District SUMF ¶ 36), and because he was "advised .
. . about [Clayton's] unauthorized use of federal
letterhead on or about September 17, 2010" with regards
to an adverse personnel action against Clipper, id.
at 57 (District SUMF ¶¶ 41-42), after receiving
three prior directions or suggestions not to use DCNG
letterhead, see Id. at 56 (District SUMF
¶¶ 37-39). Clayton counters that that the
District's inability to identify the actual
decisionmaker-or anyone who can provide an account of how her
termination actually came about-provides sufficient basis for
a reasonable jury to find that the District's proffered,
nondiscriminatory reason for her termination is pretextual.
Dkt. 106 at 53-59; id. at 102-03 (Clayton SMF ¶
113). She also disputes the District's characterization
of her job performance, asserting that she had "no
performance issues according to both General Schwartz and
DC." Id. at 101 (Clayton SMF ¶ 110)
(citing Dkt. 107-20 at 10-15 (Schwartz Dep.)).
filed this lawsuit on October 21, 2011. Dkt. 1 (Compl.). In
her initial complaint, she alleged violations of the D.C.
Whistleblower Protection Act, D.C., Code § 1-615.51
et seq., and the D.C. False Claims Act, D.C. Code
§ 2-381 et seq., common law wrongful
termination, and due process violations. Id. at
10-12 (Compl. ¶¶ 60-81). Clayton was granted leave
to file an amended complaint that included additional factual
allegations on May 15, 2012. See Minute Order (May
15, 2012). On March 21, 2013, Chief Judge Roberts granted the
DCNG's motion to dismiss for lack of subject matter
jurisdiction and granted in part the District's motion to
dismiss for failure to state a claim. Clayton I, 931
F.Supp.3d at 196. Clayton then moved for leave to file a
Second Amended Complaint, which re-alleged her prior claims
and added claims for retaliation and sex discrimination under
Title VII. Dkt. 40. The Court granted that motion in part and
denied it in part, allowing Clayton to re-plead her D.C.
Whistleblower Protection Act and D.C. False Claims Act counts
and her as-applied due process challenge to her reassignment
and termination against the District but denying her leave to
re-allege those claims that the Court had previously
dismissed. Clayton II, 999 F.Supp.2d at 180.
December 5, 2013, the District moved to dismiss Clayton's
Title VII claims, as well as her as-applied due process
claim, Dkt. 47, and, on February 24, 2014, the DCNG moved to
dismiss all of Clayton's claims for lack of subject
matter jurisdiction and for failure to state a claim, Dkt.
56. The Court granted the District's motion to dismiss
Clayton's as-applied due process claim but denied the
District's motion to dismiss her Title VII claims.
See Clayton III, 117 F.Supp.3d at 76, 81. The Court
also converted in part the DCNG's motion to dismiss
Clayton's Title VII claims to a motion under Rule 56 and
denied it without prejudice. Id. at 71. Both
defendants now move for summary judgment on Clayton's
remaining claims. Dkt. 96; Dkt. 97.
is entitled to summary judgment under Federal Rule of Civil
Procedure 56 if she can "show that there is no genuine
dispute as to any material fact and [that she] is entitled to
judgment as a matter of law." Fed.R.Civ.P. 56(a). The
party seeking summary judgment "bears the initial
responsibility" of "identifying those
portions" of the record that "demonstrate the
absence of a genuine issue of material fact."
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
A fact is "material" if it could affect the
substantive outcome of the litigation. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a
dispute is "genuine" if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party. See Scott v. Harris, 550 U.S. 372, 380
(2007). The Court must view the evidence in the light most
favorable to the nonmoving party and must draw all reasonable
inferences in that party's favor. See Talavera v.
Shah, 638 F.3d 303, 308 (D.C. Cir. 2011).
moving party carries this initial burden, the burden then
shifts to the nonmoving party to show that sufficient
evidence exists for a reasonable jury to find in the
nonmoving party's favor with respect to the
"elements] essential to that party's case, and on
which that party will bear the burden of proof at
trial." Id. (quoting Holcomb v.
Powell, 433 F.3d 889, 895 (D.C. Cir. 2006)). The
nonmoving party's opposition, accordingly, must consist
of more than 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(c);
Celotex, 477 U.S. at 324. That is, once the moving
party carries its initial burden on summary judgment, the
nonmoving party must provide evidence that would permit a
reasonable jury to find in her favor. See Laningham v.
U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). If the
nonmoving party's evidence is "merely
colorable" or "not significantly probative,"
the Court should grant summary judgment. Liberty
Lobby, 477 U.S. at 249-50.
The District of Columbia's Motion for Summary
the Court dismissed Clayton's declaratory judgment and
as-applied due process claims against the District. See
Clayton I, 931 F.Supp.2d at 201; Clayton III,
117 F.Supp.3d at 76. Accordingly, only four claims against
the District remain: (1) sex discrimination and (2)
retaliation under Title VII, and violations of (3) the D.C.
Whistleblower Protection Act ("DC-WPA") and (4) the
D.C. False Claims Act ("DC-FCA"). The Court will
address each in turn.