RUDOLPH CONTRERAS, District Judge.
The plaintiff in this action claims that her former employer, a District of Columbia
In her complaint, Jennifer B. Campbell alleges that she is an experienced healthcare consultant, having acted as an associate director of a best-practice think tank and principal of a healthcare consulting corporation, both based in Washington, D.C. See Compl. ¶ 15, ECF No. 1. In 2008, she was hired by the D.C. Department of Health Care Finance ("DHCF") as Associate Director of the Office of Utilization Management within DHCF's Health Care Accountability Administration. See id. Eventually, Ms. Campbell was promoted to the position of Chief Operating Officer at DHCF — a position in which she served as the top advisor to Wayne Turnage, the Director of DHCF and a defendant in this action. See id. ¶ 16.
On March 23, 2010, President Obama signed into law the Patient Protection and Affordable Care Act ("PPACA"), Pub. L. No. 111-148, 124 Stat. 119 (2010) (codified as amended at scattered sections of U.S.C.), setting forth many structural changes to the American healthcare system. A major part of the PPACA involves the establishment of health benefit "exchanges," which serve as online marketplaces for health insurance. See generally 42 U.S.C. §§ 18301-33 (Supp. V 2011). Some of the exchanges are to be state-run, and the District of Columbia enacted the Health Benefit Exchange Authority Establishment Act of 2011, No. 19-94, 59 D.C.Reg. 213 (codified as amended at D.C.Code §§ 31-3171.01-.08 (Supp.2012)), setting up an authority to oversee the implementation of the District's health benefit exchange. See also Compl. ¶¶ 8-10, ECF No. 1. The District looked to the private sector for information technology support in creating and managing its exchange (the "DCAS Project"), presenting the opportunity for a valuable government contract, estimated at over $70 million. See id. ¶ 11. Ms. Campbell alleges that Mr. Turnage maintained an "open door policy" with contractors, allowing vendors to meet with him in person. See id. ¶ 18. However, she alleges that his door was "open" to only a few preselected vendors — a practice Ms. Campbell urged him to change, and to either allow all contractors visitation, or none. See id.
CGI Group, Inc. ("CGI") is a large information technology and consulting company that sought to do business with the District as part of the DCAS Project. See id. ¶ 19. Ms. Campbell alleges that CGI had a "pre-established relationship" with Mr. Turnage as a result of his prior work with the company, and that CGI was in
CGI later met with Mr. Turnage, Ms. Campbell, and other DHCF staff members to discuss its bid for the DCAS Project. See id. ¶ 26. At this meeting, it was brought to CGI's attention that the District requires that at least 35 percent of any contract over $250,000 go to a qualified small, local, or disadvantaged business, known as a certified business enterprise or "CBE." See id. ¶ 27; see also D.C.Code § 2-218.46(a)(2) (2001). CGI was not a CBE, and thus reached out to Ms. Campbell to discuss potential CBEs with which it could partner for the DCAS Project. See Compl. ¶¶ 29-30, 33, ECF No. 1. Ms. Campbell alleges that she alerted CGI to the fact that the District makes performance reviews of its contractors publicly available, and suggested that CGI review them. See id. ¶¶ 33-34.
According to Ms. Campbell's allegations, CGI later met with Mr. Turnage and other DHCF staff without her presence. See id. ¶ 35. DHCF later placed Ms. Campbell on administrative leave, and then terminated her for cause in June 2012. See id. ¶¶ 41, 48. Ms. Campbell later received a letter from the District of Columbia, claiming that she had "acted inappropriately and violated District ethical standards ... by giving preferential treatment to any person, impeding government efficiency or economy; and by affecting adversely the confidence of the public in the integrity of the government." Id. ¶ 57. The letter went on to state that COMPASS Consulting Services, Inc. ("COMPASS") — a company that was considering a potential partnership with CGI — had accused Ms. Campbell of, among other things, instructing CGI to call off its potential partnership with COMPASS. See id. ¶¶ 22, 60-61, 63. The media also caught wind of Ms. Campbell's termination, and both the Washington City Paper and the Washington Post published articles describing her departure for allegedly steering contracts toward a particular CBE. See id. ¶¶ 49, 66. Ms. Campbell alleges that information was leaked by DHCF, and that the allegations in the media and the District's letter are untrue. See id. ¶¶ 45, 53, 59, 62, 64.
Since her termination, Ms. Campbell has been unable to find employment in the field of healthcare finance.
On October 31, 2012, Ms. Campbell filed a complaint against Mr. Turnage and the District of Columbia, alleging constitutional
The Federal Rules of Civil Procedure require that a complaint contain "a short and plain statement of the claim" in order to give the defendant fair notice of the claim and the grounds upon which it rests. Fed.R.Civ.P. 8(a)(2); accord Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam). A motion to dismiss under Rule 12(b)(6) does not test a plaintiff's ultimate likelihood of success on the merits; rather, it tests whether a plaintiff has properly stated a claim. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). A court considering such a motion presumes that the complaint's factual allegations are true and construes them liberally in the plaintiff's favor. See, e.g., United States v. Philip Morris, Inc., 116 F.Supp.2d 131, 135 (D.D.C.2000). It is not necessary for the plaintiff to plead all elements of her prima facie case in the complaint. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511-14, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); Bryant v. Pepco, 730 F.Supp.2d 25, 28-29 (D.D.C.2010).
Nevertheless, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). This means that a plaintiff's factual allegations "must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citations omitted). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements," are therefore insufficient to withstand a motion to dismiss. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. A court need not accept a plaintiff's legal conclusions as true, see id., nor must a court presume the veracity of the legal conclusions that are couched as factual allegations. See Twombly, 550 U.S. at 555, 127 S.Ct. 1955.
Ms. Campbell's complaint contains four causes of action: constitutional defamation; retaliatory termination in violation of the D.C. False Claims Act ("DCFCA"); violation of the D.C. Whistleblower Protection Act ("DCWPA"); and wrongful termination against public policy. Defendants move to dismiss all four claims for failure to state a claim upon which relief can be granted. They also move to dismiss the claims against Mr. Turnage because they are duplicative of Ms. Campbell's claims against the District of Columbia.
Ms. Campbell's complaint asserts constitutional defamation in violation of the Civil Rights Act of 1871. See 42 U.S.C. § 1983 (2006). A constitutional defamation claim brought under section 1983 may be based upon a state actor's deprivation of a plaintiff's Fifth or Fourteenth Amendment
Stigma arising from termination of employment infringes upon a constitutionally protected liberty interest if a plaintiff's preclusion from employment "is either sufficiently formal or sufficiently broad." Taylor v. Resolution Trust Corp., 56 F.3d 1497, 1506 (D.C.Cir. 1995). Thus, a "stigma or disability" gives rise to a constitutional defamation claim if the adverse employment action (1) constitutes a formal bar, automatically excluding a plaintiff from her chosen trade or profession; or (2) has the broad effect of largely precluding a plaintiff from her chosen career. See O'Donnell, 148 F.3d at 1141 (citing Kartseva v. Dep't of State, 37 F.3d 1524, 1528 (D.C.Cir.1994)).
Because Ms. Campbell does not allege that her termination from DHCF constitutes a formal, automatic disqualification to her further employment in healthcare finance,
Defendants also argue that Ms. Campbell's stigma allegations are implausible because she brought suit just five months after her termination, and "[f]ive months is by no means a long period of time to find a job ...." Defs.' Mem. P. & A. Supp. Mot. Dismiss 8, ECF No. 7. But Defendants cite no authority suggesting that timing is relevant to the plausibility of a stigma or disability, nor do they provide any logical reasoning that would aid the Court (or Ms. Campbell) in determining the exact duration of unemployment that would convert her stigma from implausible to plausible. Moreover, although five months
Ms. Campbell's second claim for relief is based on the DCFCA, which prohibits retaliation against employees for actions taken in furtherance of reporting a false claim. See D.C.Code § 2-381.04 (2001). "To establish a [DCFCA] retaliation claim, a plaintiff must show (1) that he or she engaged in protected activity, (2) that the defendant had knowledge that the
The elements of a DCFCA retaliation claim mirror, and are analyzed in a similar fashion to, a retaliation claim arising under the federal False Claims Act ("FCA"). See, e.g., Payne, 773 F.Supp.2d at 97; see also Pl.'s Mem. Opp'n Mot. Dismiss 8-9, ECF No. 9 (quoting case law applying the FCA). "For the first requirement — engaging in protected activity — `it is sufficient that a plaintiff be investigating matters that reasonably could lead to a viable False Claims Act case.'" United States ex rel. Brown v. Aramark Corp., 591 F.Supp.2d 68, 76 (D.D.C.2008) (quoting United States ex rel. Yesudian v. Howard Univ., 153 F.3d 731, 740 (D.C.Cir.1998)) (applying the FCA). However, "an employee's investigation of nothing more than his employer's non-compliance with federal or state regulations" is not a protected activity. United States ex rel. Yesudian v. Howard Univ., 153 F.3d 731, 740 (D.C.Cir. 1998) (citing United States ex rel. Hopper v. Anton, 91 F.3d 1261, 1269 (D.C.Cir. 1996)). "To be covered by the False Claims Act, the plaintiff's investigation must concern false or fraudulent claims." Id. (emphasis added) (internal quotation marks omitted).
Ms. Campbell's complaint fails to plead the "protected disclosure" required to support a DCFCA claim. Although she alleges that Mr. Turnage favored particular vendors with his "open door policy" and that she brought attention to "several issues" and "inconsistencies" with CGI's proposed contract, see Compl. ¶¶ 18, 22-23, ECF No. 1; Pl.'s Mem. Opp'n Mot. Dismiss 9, ECF No. 9, such allegations do not rise to the level of investigating false or fraudulent claims. Ms. Campbell's allegations relate to the bidding and negotiation process for a government contract and do not allege that CGI or anyone else submitted false records or demands for payment. See Payne, 773 F.Supp.2d at 99; see also United States ex rel. Totten v. Bombardier Corp., 286 F.3d 542, 551 (D.C.Cir.2002) ("The FCA ... attaches liability, not to underlying fraudulent activity, but to the claim for payment." (internal quotation marks omitted)). Although Ms. Campbell may have suspected that the bidding process for the DCAS and HIT Projects were tainted by impropriety, "[d]isclosing wasteful procedures or practices ... does not amount to an investigation of false or fraudulent claims." Payne, 773 F.Supp.2d at 98 (citing Hagood v. Sonoma Cnty. Water Agency, 81 F.3d 1465, 1479 (9th Cir. 1996)). The Court will therefore dismiss Count II of the complaint, but will also grant Ms. Campbell leave to amend her complaint to fortify her factual allegations for this claim.
The DCWPA provides that "[a] supervisor shall not take, or threaten
D.C.Code § 1-615.52(a)(6) (Supp.2012). "For there to be a protected disclosure, `an employee must disclose such serious errors by the agency that a conclusion the agency erred is not debatable among reasonable people.'" Wilburn v. District of Columbia, 957 A.2d 921, 925 (D.C.2008) (quoting White v. Dep't of the Air Force, 391 F.3d 1377, 1382 (Fed.Cir.2004)). As with Ms. Campbell's DCFCA claim, the parties' primary dispute is whether she sufficiently pleads the required protected disclosure. See Defs.' Mem. P. & A. Supp. Mot. Dismiss 9, ECF No. 7; Pl.'s Mem. Opp'n Mot. Dismiss 9-10, ECF No. 9.
Ms. Campbell argues that four of her allegations "support a claim of gross mismanagement of the DHCF office [and] an abuse of power and gross misuse of public funds": (1) her objections to Mr. Turnage's "open door policy"; (2) that CGI was being unfairly favored in the planning for the DCAS Project; (3) that CGI's proposed contract for the HIT Project lacked a liquidated damages clause and was inconsistent with its best and final offer; and (4) that Mr. Turnage did nothing in response to CGI's resistance to change the HIT Project contract. See Pl.'s Mem. Opp'n Mot. Dismiss 9-10, ECF No. 9 (citing Compl. ¶¶ 18-19, 23-26, ECF No. 1). The latter three of these allegations do not support a DCWPA claim in the complaint as currently drafted. The complaint does not allege that Ms. Campbell actually disclosed to anyone her belief that CGI was being unfairly favored, nor does it allege that she reported Mr. Turnage's failure to push back against CGI's resistance to change the HIT Project contract. Ms. Campbell does allege that she raised several issues with the proposed HIT Project contract during a meeting with COO staff and the DHCF contract division lead, see Compl. ¶ 23, ECF No. 1, but CGI's insistence on favorable contract terms during the negotiation phase does not rise to the level of gross mismanagement or misuse of public resources. It is normal for parties to seek favorable terms during the negotiation of a contract.
Ms. Campbell's fourth claim is for wrongful termination against public policy in violation of D.C. common law. "An employee who serves at the will of his or her employer may be discharged `at any time and for any reason, or for no reason at all.'" Liberatore v. Melville Corp., 168 F.3d 1326, 1329 (D.C.Cir.1999) (quoting Adams v. George W. Cochran & Co., 597 A.2d 28, 30 (D.C.1991)). "D.C. law thus presumptively bars wrongful termination claims brought by at-will employees." Holman v. Williams, 436 F.Supp.2d 68, 76 (D.D.C.2006). However, the presumption against wrongful termination claims does not apply where "the sole reason for the discharge is the employee's refusal to violate the law, as expressed in a statute or municipal regulation[,]" Adams v. George W. Cochran & Co., 597 A.2d 28, 34 (D.C. 1991), or where the employee's claim is "solidly based on a statute or regulation that reflects the particular public policy to be applied," Carl v. Children's Hosp., 702 A.2d 159, 163 (D.C.1997) (en banc) (Terry, J., concurring). See also Holman, 436 F.Supp.2d at 76 (discussing Adams and Carl).
Defendants argue that Ms. Campbell's common law claim must fail because it is supported by the same allegations as her DCWPA claim. Defs.' Mem. P. & A. Supp. Mot. Dismiss 9-11, ECF No. 7. Where the D.C. Council has squarely addressed the issue in the DCWPA, the D.C. Court of Appeals has "decline[d] to recognize a novel, competing cause of action for wrongful discharge at common law." Carter v. District of Columbia, 980 A.2d 1217, 1226 (D.C.2009). Allowance of a common law claim under such circumstances would undermine the legislature's prerogatives. See id. But Ms. Campbell's wrongful termination claim is not based on her protected disclosures under the DCWPA. Rather, it is based on her alleged "refus[al] to modify the CBE guidelines for the DCAS policy" at Defendants' instruction. Compl. ¶ 97, ECF No. 1. A refusal to participate
The cases cited by Defendants are not to the contrary. In Carter v. District of Columbia, 980 A.2d 1217 (D.C.2009), the plaintiff argued that she was fired for reporting violations of municipal personnel regulations. Thus, her wrongful termination claim was based on the act of reporting — not refusing to participate — and thus could have been covered by a DCWPA claim. See id. at 1225-26. Similarly, in McManus v. MCI Commc'ns Corp., 748 A.2d 949 (D.C.2000), the D.C. Human Rights Act was the public policy allegedly breached. See id. at 957. That statute already provides a remedy for retaliatory termination itself, and so the Court rejected the application of a wrongful termination claim. See id. The CBE policies, in contrast, do not contain a retaliation or wrongful termination provision. The Court will therefore deny Defendants' motion to dismiss Count IV.
Finally, Defendants move to dismiss all four claims against Mr. Turnage as duplicative of Ms. Campbell's claims against the District of Columbia. See Defs.' Mem. P. & A. Supp. Mot. Dismiss 11-14, ECF No. 7.
Ms. Campbell presents no logical justification for maintaining a suit against
For the foregoing reasons, the Court will grant Defendants' motion to dismiss Ms. Campbell's DCFCA claim, but will deny their motion to dismiss her constitutional defamation, DCWPA, and wrongful termination claims. The Court will also merge the claims against Mr. Turnage in his official capacity with those against the District of Columbia, and dismiss Mr. Turnage as a party to this action. Ms. Campbell will be given leave to amend her complaint. An order consistent with this Memorandum Opinion is separately and contemporaneously issued.