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Clayton v. District of Columbia

United States District Court, District of Columbia

March 20, 2019

BETTY CLAYTON, Plaintiff,
v.
DISTRICT OF COLUMBIA, et al, Defendants.

          MEMORANDUM OPINION AND ORDER

          RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE.

         The 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.

         In 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.

         I. BACKGROUND

         This is 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.

         A. Factual Background

         1. D.C Government Operations Division

         On June 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).[1]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 ¶¶ 2-3).

         The 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 administrator.").

         The 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).

         2. Clayton's Alleged Whistleblowing Activities

         Clayton 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.

         First, 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. ¶¶ 55-56);
• the improper "steering" of a District of Columbia bus contract, id. (Second Amd. Compl. ¶ 57);
• 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," id.

         Aside 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 82-104.

         Second, 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)).

         Third, 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).

         The 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).

         3. Clayton's Loss of Career-Position Protections and Termination

         It is 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 Appointment).

         On 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.)).

         B. Procedural Background

         Clayton 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.

         On 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.

         II. LEGAL STANDARD

         A party 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).

         If the 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.

         III. ANALYSIS

         A. The District of Columbia's Motion for Summary Judgment

         Previously, 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.

         1. Tit ...


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