RUDOLPH CONTRERAS, United States District Judge.
Dr. Jennifer B. Campbell brought this action after she was terminated by her employer the District of Columbia amid allegations that she had attempted to steer government contracts toward certain parties. In the claims that remain pending, Campbell contends that the District deprived her without due process of the right to pursue her profession, retaliated against her for protected whistleblowing activity in violation of the D.C. Whistleblower Protection Act, and wrongfully discharged her in violation of D.C. common law. The District has moved for summary judgment on each of these claims. The Court denies the District's motion as to the procedural due process claim because Campbell has created a genuine dispute of material fact as to the deprivation of her liberty interest, and because the District does not contend that she received constitutionally sufficient process. The Court also denies the motion as to the Whistleblower Protection Act claim because the District has failed to prove by clear and convincing evidence that Campbell would have been terminated for legitimate, independent reasons even
In 2011, Campbell served as Director of Health Care Reform and Innovation Administration in the D.C. Department of Health Care Finance ("DHCF"). See Campbell Decl. ¶ 2, Pl.'s Ex. 1, ECF No. 25-2. In that role, Campbell oversaw the bidding process for contracts for establishing the District's health insurance exchange pursuant to the Patient Protection and Affordable Care Act, Pub.L. No. 111-148, 124 Stat. 119 (2010). See id. ¶¶ 6-7.
In the course of managing the bidding process, Campbell came to assert opinions different from those held by DHCF Director Wayne Turnage, with whom she worked closely. See Campbell Dep. at 25:14-26:2, Def.'s Ex. A, ECF No. 24-2. First, beginning around August 2011, she objected to Turnage's "open door policy" that encouraged meetings with prospective vendors, which she perceived as actually favoring CGI Technologies and Solutions, Inc. ("CGI"), a firm with which Turnage had previous dealings. See Campbell Decl. ¶¶ 36-43, Pl.'s Ex. 1. Additionally, in May 2012, Campbell refused to execute a contract previously awarded to CGI, on the basis that it lacked a liquidated damages clause and was inconsistent with CGI's final offer, and she remained adamant even after Turnage pressured her to approve the agreement. See id. ¶¶ 15-18; see also Campbell Dep. at 42:5-66:17, Def.'s Ex. A.
In May 2012, Campbell was promoted to Chief Operating Officer ("COO"). See Campbell Decl. ¶ 2, Pl.'s Ex. 1. The COO was an Excepted Service position, meaning that the role primarily entailed handling policy or confidential matters and required reporting directly to an agency head. See Termination letter of June 11, 2012, Pl.'s Ex. 2, ECF No. 25-2; see also D.C.Code § 1-609.02 (describing Excepted Service personnel). Her annual salary as COO was $146,000. See Campbell Decl. ¶ 2, Pl.'s Ex. 1. As COO, Campbell continued to work closely with Turnage on implementing the District's health insurance exchange. See id. ¶ 7; Campbell Dep. at 25:14-26:2, Def.'s Ex. A.
In early June 2012, unbeknownst to Campbell, Turnage learned of allegations that she had attempted to interfere improperly both with Phase I of the health insurance exchange contract, which had been awarded months earlier to Compass Solutions, LLC ("Compass"), and with the bidding process for Phase II. First, Campbell had allegedly required Compass to hire consultant Cedric Simon for its work on Phase I. See Onyewuchi Dep. at 42:1-11, Pl.'s Ex. 3, ECF No. 25-2. Second, Campbell had reportedly asked CGI to abandon plans to partner with Compass in bidding on Phase II and to partner instead with Document Managers, which was owned by Darryl Wiggins, an advisor to a D.C. Councilmember. See id. at 38:1-42:11; Campbell Decl. ¶¶ 27-30, Pl.'s Ex.
According to Campbell's evidence, all three allegations were false. See Campbell Decl. ¶¶ 27-35, Pl.'s Ex. 1. The allegation that she expressly required Compass to hire Simon for the Phase I contract is denied by Simon himself and by two other individuals who attended the kickoff meeting at which Campbell purportedly imposed the requirement; Campbell's evidence shows that in accordance with standard practice, she explained only that approval would be needed for any changes to the project team outlined in Compass's proposal. See Simon Aff. ¶ 8, Pl.'s Ex. 7, ECF No. 25-2; Norton Dep. at 11:7-15, 15:19-16:22, Pl.'s Ex. 5, ECF No. 25-2; Walker Dep. at 7:3-8:14, Pl.'s Ex. 4, ECF No. 25-2. Moreover, Campbell denies the allegation that she asked CGI to partner with Wiggins's company Document Managers, and Wiggins claims that he and Campbell never discussed such an arrangement. See Campbell Decl. ¶¶ 20, 28, Pl.'s Ex. 1; Wiggins Aff. ¶ 5, Pl.'s Ex. 9, ECF No. 25-2. Lastly, Campbell avers that she never sought to assemble a minority vendor team, and an executive at CGI — purportedly the source of the allegation — testified that she never made such reports. See Campbell Decl. ¶¶ 33-35, Pl.'s Ex. 1; compare Onyewuchi Dep. at 47:20-48:6 (Compass executive attributing allegation to CGI), with Ploog Dep. at 46:5-13, Pl.'s Ex. 16, ECF No. 25-4 (CGI executive stating that she never told Compass's Onyewuchi that Campbell was meeting with minority vendors).
On June 3, 2012, while attending a conference in Tennessee, Campbell was summoned back to D.C. for an urgent meeting with Turnage, set for the following day. See Campbell Decl. ¶ 21, Pl.'s Ex. 1. On June 4, Turnage's Chief of Staff and a human resources official met with Campbell and told her that she would be placed on administrative leave. Campbell was provided no explanation and was promptly disconnected from DHCF property and escorted out of the office. Id. ¶ 22; Turnage email of June 4, 2012, Pl.'s Ex. 17, ECF No. 25-4. That same day, she received a letter from the Department of Human Resources placing her on administrative leave during the pendency of a "preliminary investigation into inappropriate conduct" at DHCF. Stokes letter of June 4, 2012, Pl.'s Ex. 18, ECF No. 25-4. Campbell attempted unsuccessfully to schedule a meeting with Turnage. See Campbell Decl. ¶ 23, Pl.'s Ex. 1.
The night of June 4, Turnage sent an email to the Mayor's Chief of Staff Chris Murphy and others, providing various "updates" on Campbell. Turnage email of June 4, 2012, Pl.'s Ex. 17. His email explained that he had personally confirmed, through conversations with Compass and CGI representatives, the allegations that Campbell had attempted to steer contracts to certain parties, and reported that Campbell had been placed on administrative leave as of that morning. Id. The email explained Turnage's findings that, after the allegations surfaced, Compass and CGI had promptly terminated contact with Wiggins and that Compass had fired Simon, who "knew that Jennifer had been sent home — an indication that she likely called him." Id. Turnage further observed that "[c]uriously," Campbell had not contacted him since she was summoned back to D.C. Id. Summing up, Turnage wrote: "This concludes my investigation of this issue and I will inform
On June 11, 2012, Campbell received a letter notifying her of her termination, which would take effect on June 26, 2012. See Termination letter of June 11, 2012, Pl.'s Ex. 2. The letter summarized Turnage's findings and stated that Campbell's three counts of misconduct were each "violations of the District's ethical standards and [were] the basis for [her] separation for cause." Id. In closing, the letter confirmed that Campbell would remain on administrative leave with pay until the effective date of her separation, and noted that she was "not entitled to receive separation pay" because her termination was for cause. Id. (citing D.C.Code § 1-609.03(f)).
Meanwhile, Washington City Paper reporter Alan Suderman got wind of the controversy surrounding Campbell. Suderman initially sought out information about Campbell by calling Pedro Ribiero, Director of Communications in the Executive Office of the Mayor. On the phone, Ribiero explained that he did not know of Campbell or of "what was going on" with her. Ribiero Dep. at 6:2-21, 13:13-21, Pl.'s Ex. 21, ECF No. 25-5. Later, on June 7, 2012, Suderman sent an email to Ribiero again inquiring about Campbell. Suderman-Ribiero-Murphy emails of June 7, 2012, Pl.'s Ex. 20, ECF No. 25-5. This time, Ribiero obtained from Murphy paper copies of Turnage's emails concerning Campbell, and then allowed Suderman to review and take notes on the emails. See Ribiero Dep. at 6:2-8:1, 8:15-22, Pl.'s Ex. 21. Neither Ribiero nor Murphy knew whether Suderman, before reviewing the emails, had any knowledge of the specific allegations against Campbell. See Murphy Dep. at 7:19-22, Pl.'s Ex. 22, ECF No. 25-5; Ribiero Dep. at 6:14-18, Pl.'s Ex. 21.
On June 10, 2012, Suderman called Turnage. Suderman read excerpts of the emails to Turnage and threatened to use them directly for his article if Turnage did not comment. See Turnage Dep. at 42:20-46:4, Pl.'s Ex. 10, ECF No. 25-3. That evening, Turnage forwarded his emails to Suderman, each prefaced by various updates, corrections, and clarifications. See Turnage-Suderman emails of June 10, 2012, Pl.'s Ex. 23, ECF No. 25-5. Specifically, Turnage asked Suderman to "emphasize" a statement in one of his emails that "[i]t goes without saying that this process should be conducted confidentially for the protection of ... the agency and out of respect for Jennifer's potential innocence." Id.
On June 11, 2012, Suderman published an article in the Washington City Paper reporting that Campbell had been terminated on the basis of the three contract-steering allegations. See Health Care Finance COO Fired Over Contract Steering Allegations, Washington City Paper, June 11, 2012, Pl.'s Ex. 24, ECF No. 25-5. Campbell first learned of the allegations against her by reading Suderman's article, and she subsequently refused to meet with Turnage. See Campbell Decl. ¶ 26, Pl.'s Ex. 1. The following day, another reporter published a similar article in the Washington Post. See D.C. Official Is Fired Over Contract Allegations, Washington Post, June 12, 2012, Pl.'s Ex. 25, ECF No. 25-5.
After her termination, Campbell had difficulty securing full-time employment. She applied without success to over thirty positions. See Job search log, Pl.'s Ex. 34, ECF No. 25-6; Campbell Decl. ¶ 45, Pl.'s Ex. 1. During the period between her June 2012 termination and July 2014, she performed temporary work as a consultant and adjunct professor, though she earned a total of only $20,689, and none of these positions was within her chosen field of healthcare finance and management. Campbell Decl. ¶¶ 53-55, Pl.'s Ex. 1. On one occasion, in the fall of 2012, a prospective employer expressly told her that news reports concerning her departure from DHCF had raised concerns that she would be a "liability," before that employer decided to hire another candidate. See id. ¶¶ 51-52; Planned Parenthood emails, Pl.'s Ex. 29, ECF No. 25-6. According to a 2013 "Vocational Assessment" by a vocational rehabilitation counselor, Campbell's lack of success in finding new employment was attributable to the "taint of suspicion" arising from the ready online availability of the allegedly defamatory articles and subsequent reports of her lawsuit. See Vocational Assessment, Pl.'s Ex. 32, ECF No. 25-6.
In October 2012, Campbell filed the instant action against the District and Turnage. See generally Compl., ECF No. 1. The complaint asserts that she was deprived without due process of her liberty interest in pursuing her profession, in violation of the Civil Rights Act of 1871, 42 U.S.C. § 1983;
In July 2014, Campbell was hired into a full-time consulting position in her chosen field of healthcare finance and management. See Campbell Decl. ¶ 56-58, Pl.'s Ex. 1. Her annual salary in this role is $136,000. Id. ¶ 56.
Following discovery, the District moved for summary judgment. See ECF No. 24. The motion has been fully briefed and is ripe for decision.
A court may grant summary judgment when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A "material" fact is one capable of affecting the substantive outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The principal purpose of summary judgment is to streamline litigation by disposing of factually unsupported claims or defenses and determining whether there is a genuine need for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant bears the initial burden of identifying portions of the record that demonstrate the absence of any genuine issue of material fact. See Fed.R.Civ.P. 56(c)(1); Celotex, 477 U.S. at 323, 106 S.Ct. 2548. In response, the non-movant must point to specific facts in the record that reveal a genuine issue suitable for trial. See Celotex, 477 U.S. at 324, 106 S.Ct. 2548.
In Count I, Campbell seeks compensation under § 1983 on the basis that the circumstances of her termination unconstitutionally deprived her without due process of her protected liberty interest in pursuing her chosen field of employment. See Compl. ¶¶ 76-83.
"[T]o make out a violation of [procedural] due process, the plaintiff must show the Government deprived her of a `liberty or property interest' ... and that `the procedures attendant upon that deprivation were constitutionally insufficient.'" Roberts v. United States, 741 F.3d 152, 161 (D.C.Cir.2014) (citation and internal alteration omitted). The Due Process Clause of the Fifth Amendment protects a District of Columbia employee's liberty interest in "choos[ing] one's field of private employment." Conn v. Gabbert, 526 U.S. 286, 291-92, 119 S.Ct. 1292, 143 L.Ed.2d 399 (1999) (articulating same liberty interest under Fourteenth Amendment); see also Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 573-74, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (same).
In its motion for summary judgment, the District contends that the record evidence cannot establish the deprivation of a liberty interest under either a "reputation-plus" or "stigma or disability" theory. Below, however, the Court concludes that under both theories, Campbell has created a genuine dispute of material fact. Because a reasonable jury could find that Campbell suffered a liberty interest deprivation and because the District no longer
Under the "reputation-plus" theory, an individual loses her liberty interest in pursuing her chosen profession when "defamation [is] accompanied by a discharge from government employment or at least a demotion in rank and pay." O'Donnell, 148 F.3d at 1140 (emphasis omitted) (quoting Mosrie v. Barry, 718 F.2d 1151, 1161 (D.C.Cir.1983)). Under D.C. law, a plaintiff asserting a defamation claim must establish:
Rosen v. Am. Israel Pub. Affairs Comm., Inc., 41 A.3d 1250, 1256 (D.C.2012).
At the outset, the District does not dispute that Campbell was terminated, or that certain statements about Campbell "accompanied" the termination. O'Donnell, 148 F.3d at 1140.
In its motion for summary judgment, the District addresses the first, second, and fourth elements of the Rosen defamation rubric. In the District's view, the undisputed record evidence establishes (a) the lack of any false or defamatory statement, (b) the applicability of the common interest privilege, and (c) the absence of special harm. For the reasons given below, the Court disagrees as to each element.
The District first contends that there is no evidence that any statement made by any District official was "false or defamatory." See Mem. Supp. Def.'s Mot. Summ. J. 10-11. Because a reasonable jury could conclude that certain statements were both false and defamatory, the Court denies the District's motion as to this issue.
The Court concludes that there is a dispute of fact as to whether Turnage's emails were both false and defamatory. Beyond passing conclusory assertions, the District does not meaningfully dispute that a reasonable jury could find that Turnage's emails "ten[d] to injure [Campbell] in [her] trade, profession or community standing" because they concern her allegedly unethical interference with government contract management and bidding. Olinger, 409 F.2d at 144; Mem. Supp. Def.'s Mot. Summ. J. 11. Campbell has also created a genuine dispute of fact as to falsity by pointing to the factual assertions contained in Turnage's emails. In one email, Turnage recounts his own investigation purporting to confirm the allegations against Campbell: "This concludes my investigation of this issue and I will inform Director Stokes that I am firing Jennifer Campbell." Turnage email of June 4, 2012, Pl.'s Ex. 17. In another email, Turnage discredits certain claims made by Wiggins (with whom Campbell allegedly suggested CGI should partner) and suggests that Campbell had a personal relationship with Simon (whom Campbell allegedly required Compass to hire). See Turnage email of June 6, 2012, Pl.'s Ex. 17. The conflicting record evidence, however, could support a finding that all of the allegations confirmed by Turnage were in fact false. See supra Part II.B. Turnage's findings are thus "statement[s] of fact" whose truth must be decided by a jury. Rosen, 41 A.3d at 1256.
The District attempts to reduce the emails at issue to wholly innocuous, truthful statements that the District was simply undertaking an investigation into unconfirmed "allegations." Mem. Supp. Def.'s Mot. Summ. J. 10-11. Of course, no one disputes that certain allegations against Campbell gave rise to an investigation. But the Court cannot overlook the content of Turnage's emails — their detailed explication of the substance of the allegations and Turnage's conclusions as to their truth — given that Campbell has cited those very emails in opposing summary judgment. See Pl.'s Mem. Opp'n 20-21; Celotex, 477 U.S. at 324, 106 S.Ct. 2548 (explaining that non-movant must point to record evidence that reveals a genuine issue for trial).
The District next contends that the releases of Turnage's emails could not be defamatory because they were protected by the common interest privilege. See Mem. Supp. Def.'s Mot. Summ. J. 11-14. Because the District has failed to show that the privilege applies as a matter of law on the facts of this case, the Court declines to grant summary judgment on this basis.
"A statement is protected by the common interest privilege if it is `(1) made in good faith, (2) on a subject in which the party communicating has an interest, or in reference to which he has or honestly believes he has a duty (3) to a person who has such a corresponding interest or duty.'" Payne v. Clark, 25 A.3d 918, 925 (D.C.2011) (citation omitted). "Two circumstances foreclose asserting the privilege: first, excessive publication, defined as `publication to those with no common interest in the information communicated, or publication not reasonably calculated to protect or further the interest,' and, second, publication with malice, which, within the context of the common interest privilege, is `the equivalent of bad faith.'" Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 858 (D.C.Cir.2006) (citations omitted) (quoting Moss v. Stockard, 580 A.2d 1011, 1024-25 (D.C.1990)). "While the defendant bears the burden of proving the elements of the common interest privilege, the burden of defeating the privilege by showing excessive publication or publication with malice lies with the plaintiff." Id.
The District has failed to carry its burden to demonstrate that the common interest privilege covers its statements. The District contends that the applicable common interest is the District's and public's shared "genuine interest" in making known "how seriously the District took allegations of impropriety regarding its employees." Mem. Supp. Def.'s Mot. Summ. J. 13.
Accordingly, the District has not carried its burden to show that the common interest privilege forecloses Campbell's claim under the "reputation-plus" theory. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548.
Lastly, the District contends that the record evidence cannot establish that Campbell suffered "special harm," which is "limited to actual pecuniary loss." See Mem. Supp. Def.'s Mot. Summ. J. 14-15. But Campbell's declaration states that she earned only about $20,689 in total from her work during the two years following her termination, see Campbell Decl. ¶ 53, Pl.'s Ex. 1, as compared with her previous and subsequent full-time salaries of $146,000 and $136,000, respectively, see id. ¶¶ 2, 56. Accordingly, Campbell has proffered evidence of lost earnings sufficient to create a
As to each element of defamation that the District's motion has put into issue, the Court rejects the District's arguments: The record evidence could support jury findings that the District's disclosures of Turnage's emails satisfy the "false and defamatory" and "special harm" prongs of the defamation test, and the District fails to establish that the common interest privilege covers its disclosures. Because the District's contention that Campbell cannot establish defamation is the only basis for its motion for summary judgment as to the "reputation-plus" theory, the Court denies the District's motion as to this theory of Campbell's liberty interest deprivation.
In contrast to the "reputation-plus" theory, the "stigma or disability" theory hinges not on "official speech, but on a continuing stigma or disability arising from official action." O'Donnell, 148 F.3d at 1140 (emphasis added). Such "stigma or disability" results when state action has the "broad effect of largely precluding [the employee] from pursuing her chosen career." Id. at 1141 (citation omitted). The official action must have "the effect of seriously affecting, if not destroying a plaintiff's ability to pursue his chosen profession, or substantially reducing the value of his human capital." Id. (internal quotation marks, alterations, and citations omitted); see also Taylor v. Resolution Trust Corp., 56 F.3d 1497, 1506-07 (D.C.Cir. 1995) (explaining that the standard is "high").
The Court concludes that Campbell has proffered evidence that could support an inference that her termination from DHCF had the "broad effect of largely precluding [her] from pursuing her chosen career." O'Donnell, 148 F.3d at 1141 (citation omitted). During the two years after her termination, despite applying for over thirty positions, Campbell secured only two consulting contracts and an adjunct teaching position, and a reasonable jury could find that none of this work fell within her chosen field of healthcare finance or management. See Campbell Decl. ¶¶ 53-55, Pl.'s Ex. 1; Health Dimensions Group contract, Pl.'s Ex. 30, ECF No. 25-6; Wright Group contract, Pl.'s Ex. 31, ECF No. 25-6.
In reply, the District contends that a finding of "stigma or disability" is foreclosed by the fact that in July 2014, two years after her termination, Campbell secured her current job, which, she concedes, is within her chosen field. See Campbell Decl. ¶ 58, Pl.'s Ex. 1; see also Def.'s Reply 5-6. The District's implicit argument is that as a matter of law, an actionable liberty deprivation must last longer than two years, but it (again) cites no authority for its contention. The District's failure to explain the legal basis for its duration argument is alone grounds for rejecting it. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548 (describing movant's "initial responsibility" of showing "absence of a genuine issue of material fact"). Moreover, the Court knows of no authority supporting a bright-line minimum duration rule and declines to craft one here in the absence of sufficient briefing. Compare Wisconsin v. Constantineau, 400 U.S. 433, 435, 437, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971) (holding that police notice in local retail liquor stores barring sales or gifts of liquor to Constantineau "for one year" imposed a "badge of infamy" and required procedural protections); Taylor, 56 F.3d at 1507 (recognizing in dicta that "temporary" inability to pursue chosen profession could support procedural due process claim, though not a finding of irreparable injury for purposes of obtaining a preliminary injunction), Blantz v. Cal. Dep't of Corr. & Rehab., Div. of Corr. Health Care Servs., 727 F.3d 917, 925 (9th Cir.2013) ("Stigmatizing statements that merely cause reduced economic returns and diminished prestige, but not permanent exclusion from, or protracted interruption of, gainful employment within the trade or profession do not constitute a deprivation of liberty." (emphasis added) (citations and internal quotation marks omitted)).
Because Campbell has proffered evidence that as a result of the circumstances of her termination from DHCF, she was unable to secure employment in her chosen
Even if Campbell has created a dispute of material fact as to the deprivation of her liberty interest under both the "reputation-plus" and "stigma or disability" theories, her procedural due process claim would still fail if she had received a constitutionally sufficient post-termination opportunity to seek a "name-clearing" hearing. Doe v. U.S. Dep't of Justice, 753 F.2d 1092, 1113 (D.C.Cir.1985); see also Codd, 429 U.S. at 627, 97 S.Ct. 882. In its motion for summary judgment, the District initially argued that Campbell received constitutionally adequate process. See Mem. Supp. Def.'s Mot. Summ. J. 17; Def.'s Reply 7. But in response to the Court's order for supplemental briefing, the District subsequently withdrew this argument. See Def.'s Response, ECF No. 32. Because the District no longer contends that Campbell received constitutionally adequate process, the Court need not address the issue further.
In the interest of clarifying the law, however, the Court explains the reasons behind the District's about-face. In support of its initial argument that Campbell received sufficient process, the District relied exclusively on McCormick v. District of Columbia, 752 F.3d 980 (D.C.Cir. 2014). See Mem. Supp. Def.'s Mot. Summ. J. 17. In that case, McCormick was a Supervisory Correctional Officer in the D.C. Department of Corrections, an at-will position in the Management Supervisory Service. See McCormick, 752 F.3d at 982. After an internal investigation concluded that he had assaulted an inmate, he was terminated for cause. See id. at 983. In the district court, he claimed that his for-cause termination deprived him without due process of his liberty interest in obtaining future employment in his chosen field. See id. at 984, 987-88. On appeal, the D.C. Circuit held that because McCormick had the right to bring in Superior Court "an action for review, including one for severance" (which is not payable to employees terminated for cause), he was given the right to the "name-clearing hearing" required by the Due Process Clause. Id. at 990.
Here, the District initially contended in its motion for summary judgment that Campbell, like McCormick, had an opportunity to clear her name by seeking severance pay in Superior Court. To be sure, unlike McCormick, Campbell was a member of the Excepted Service, not the Management Supervisory Service. See Termination letter of June 11, 2012, Pl.'s Ex. 2; Def.'s Statement of Facts ¶ 3, ECF No. 24-1; see also D.C.Code § 1-609.01 (explaining mutual exclusivity of Excepted Service and Management Supervisory Service). But the District explained that the District of Columbia's Comprehensive Merit Personnel Act ("CMPA"), D.C.Code §§ 1-601.01 et seq., provides that Excepted Service employees, like Management Supervisory Service employees, can receive severance pay "upon separation for non-disciplinary reasons" according to a statutory severance schedule. D.C.Code §§ 1-609.03(f), 1-609.54(b). Because the McCormick court found dispositive the presence of a severance schedule in holding that a Management Supervisory Service employee could clear his name in an action for severance pay, the District initially argued that this Court, too, must conclude that Campbell enjoyed the same process. See McCormick, 752 F.3d at 990.
In response to the Court's order for supplemental briefing, however, the District now concedes that its reliance on McCormick was misplaced. See generally Def.'s Response.
Because the District has withdrawn its initial argument that Campbell received constitutionally sufficient process under McCormick, and because it has proffered no alternative argument, the District has
Because Campbell has created a genuine dispute of material fact as to the deprivation of her liberty interest in pursuing her chosen profession under both the "reputation-plus" and "stigma or disability" theories, and because the District no longer contends that this deprivation occurred with constitutionally adequate process, the Court denies the District's motion for summary judgment as to the procedural due process claim.
Count III of the complaint alleges that on account of Campbell's disclosures regarding the CGI contract irregularities, the District retaliated against her in violation of the DCWPA by releasing the emails to Suderman and, ultimately, by terminating her. See Compl. ¶¶ 90-94.
The DCWPA aims to "encourage disclosure of wrongdoing to persons who may be in a position to act to remedy it." Wilburn v. District of Columbia, 957 A.2d 921, 925 (D.C.2008). To that end, the Act provides that "[a] supervisor shall not take, or threaten to take, a prohibited personnel action or otherwise retaliate against an employee because of the employee's protected disclosure or because of an employee's refusal to comply with an illegal order." D.C.Code § 1-615.53(a). The Act defines "protected disclosure" to include disclosures of information that the employee reasonably believes demonstrates "[g]ross mismanagement" or "[a]buse of authority in connection with the administration of a public program or the execution of a public contract." Id. § 1-615.52(a)(6).
The DCWPA also establishes a "distinct" burden-shifting framework applicable to civil actions for violations of the Act. Coleman, 794 F.3d at 54. A plaintiff must first make out a prima facie claim of prohibited retaliation by showing by a preponderance of the evidence that "(i) she made a statutorily protected disclosure, and (ii) the disclosure was a `contributing factor' behind (iii) an adverse personnel action taken by her employer." Id. (citing Crawford v. District of Columbia, 891 A.2d 216, 219, 221 (D.C.2006)). Upon such a showing, "the burden of proof shall be on the defendant to prove by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected" by the Act. D.C.Code § 1-615.54(b). Under this framework, then, the "burden of persuasion remains on the defendant even once a legitimate and independent rationale for an action has been articulated." Coleman, 794 F.3d at 62 (contrasting DCWPA burden of persuasion under section 1-615.54(b) with federal Title VII burden of production under McDonnell-Douglas). Accordingly, at summary judgment, courts must "view the evidence presented through the prism of [this] clear and convincing substantive evidentiary burden."
Here, the District does not contend that Campbell has failed to make out a prima facie claim of retaliation under the DCWPA; it argues only that Campbell would have been terminated for legitimate, independent reasons even had she not engaged in protected activity. See Mem. Supp. Def.'s Mot. Summ. J. 17-18. Accordingly, the Court will proceed under the assumption that Campbell has established a prima facie case.
The Court finds that the District has not met its burden "to prove by clear and convincing evidence" that Campbell would have been terminated for "legitimate, independent reasons" even if she had not engaged in activity protected by the DCWPA. D.C.Code § 1-615.54(b); accord Coleman, 794 F.3d at 54. First, Campbell's evidence undermines the "legitima[cy]" of the District's proffered reasons. The District claims that it acted on the basis of the three allegations of contract steering, and that Campbell would have been terminated for this reason even if she had not engaged in any whistleblowing. See Mem. Supp. Def.'s Mot. Summ. J. 18. But in opposing summary judgment, Campbell has "c[ome] forward with affirmative evidence that counter[s] [the District's] proffered rationale" for her termination — evidence that controverts each of the allegations against her. Coleman, 794 F.3d at 63; see supra Part II.B (reviewing conflicting record evidence); cf. Bowyer v. District of Columbia, 793 F.3d 49, 55 (D.C.Cir.2015) (concluding that defendant met burden of proof under DCWPA where it offered an "unrebutted explanation" for alleged retaliation); accord Coleman, 794 F.3d at 66 n. 10. Second, as Campbell explains, the evidence showing that Turnage's investigation occurred in the space of only a few days and soon after Campbell refused to approve the CGI contract could support an inference that the District's reasons were not wholly "legitimate" and "independent." See Turnage email of June 4, 2012, Pl.'s Ex. 17; Pl.'s Mem. Opp'n 39; see also Coleman, 794 F.3d at 63 (reasoning that defendant could not "cherry pic[k] a few words and phrases out of [plaintiff's] memoranda and labe[l] them `paranoid' and `disturbing'" in order to justify a psychological examination).
The Court notes that the District does not contend that the DCWPA permits a defendant to assert that its "stated belief about the underlying facts is reasonable in light of the evidence" even if such belief turns out ultimately to be incorrect — a viable approach under federal employment discrimination statutes. Brady v. Office of Sergeant at Arms, 520 F.3d 490, 495 (D.C.Cir.2008) (emphasis added) (citing George v. Leavitt, 407 F.3d 405, 415 (D.C.Cir.2005)). In Coleman v. District of Columbia, the panel majority explained that although the defendant "perhaps could have" relied on such a theory in moving for summary judgment on a
Because the District has not met the DCWPA's demanding burden of proving by "clear and convincing evidence" that Campbell would have been terminated for "legitimate, independent reasons" even if she had engaged in activity protected by the Act, the Court denies the motion for summary judgment as to Count III.
In Count IV, the complaint alleges that Campbell was wrongfully terminated against public policy, in violation of D.C. common law. See Compl. ¶¶ 95-99.
The D.C. Court of Appeals has recognized a common-law tort of wrongful discharge "as an exception to the traditional at-will doctrine governing termination of employment, where the discharge violates a clear mandate of public policy." Carter v. District of Columbia, 980 A.2d 1217, 1225 (D.C.2009) (citations and internal quotation marks omitted). But if the D.C. Council has "creat[ed] a specific, statutory cause of action to enforce" the public policy at issue, courts must "decline to recognize a novel, competing cause of action for wrongful discharge at common law." Id. at 1226 (affirming grant of summary judgment on wrongful discharge claim premised on alleged whistleblowing protected by DCWPA); accord Lockhart v. Coastal Int'l Sec., Inc., 5 F.Supp.3d 101, 107 (D.D.C.2013) (granting defendant summary judgment and explaining that plaintiffs "may not rely upon an alleged [D.C. Family Medical Leave Act] violation as the basis for their wrongful discharge claim because this statute itself provides a statutory remedy").
On this record, Campbell may not seek relief under a wrongful discharge theory because the D.C. Council, by enacting the DCWPA, has created a cause of action to further the same public policy that she seeks to vindicate — the protection of whistleblowing. Here, Campbell alleges that she was terminated because of her disclosure of certain irregularities in the CGI contract and persistent refusal to approve the contract, notwithstanding directives to do so. See Compl. ¶¶ 96-97. Indeed, Campbell brings a separate claim under the DCWPA, premised essentially on the
Because Campbell may not bring a wrongful discharge claim to vindicate a public policy that the D.C. Council has opted to protect using the DCWPA, the Court grants the District's motion for summary judgment as to Count IV.
For the foregoing reasons, the District's motion for summary judgment (ECF No. 24) is
The District also contends that Campbell cannot prevail on a "defamation per se" theory, under which no proof of harm would be necessary. See Mem. Supp. Def.'s Mot. Summ. J. 14-15 (citing Franklin v. Pepco Holdings, Inc., 875 F.Supp.2d 66, 75 (D.D.C. 2012)). But Campbell does not argue that the statements at issue were defamatory per se.
To be clear, even if Campbell had not asserted a DCWPA claim or if the Court had granted summary judgment on that claim, the Court's analysis here would be unaffected. See Carter, 980 A.2d at 1226 n. 27 (noting that Carter did not assert claim under DCWPA, which statute nonetheless foreclosed his wrongful discharge claim).
