                  UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
ERIC W. PAYNE,                )
                              )
          Plaintiff,          )
                              )
          v.                  )    Civil Action No. 10-679 (RWR)
                              )
DISTRICT OF COLUMBIA, et al., )
                              )
          Defendants.         )
______________________________)

                  MEMORANDUM OPINION AND ORDER

     Plaintiff Eric Payne brings suit against defendants District

of Columbia (“D.C.”) and Dr. Natwar Gandhi, D.C.’s Chief

Financial Officer (“CFO”), alleging that the defendants violated

the D.C. Whistleblower Protection Act (“DC-WPA”), D.C. Code § 1-

615.51 et seq., by retaliating against him for making protected

disclosures, and that the defendants violated the United States

Constitution by defaming him and depriving him of his liberty

interest in following his chosen profession.1    At the close of

discovery, the defendants moved for summary judgment.    Because

Payne did not show that the defendants’ legitimate, non-

retaliatory reason for terminating him is pretextual, and the

undisputed facts establish that Payne has no constitutional



     1
       Payne also asserts a claim for wrongful termination in
violation of D.C. common law which he now agrees is “subsumed” by
his DC-WPA claim. See Pl.’s Opp’n to Defs.’ Mot. for Summ. J. at
13. Thus, judgment for the defendants will be entered on Payne’s
wrongful termination claim.
                                 -2-

defamation claim, the defendants’ motion for summary judgment

will be granted as to Payne’s DC-WPA claim regarding his

termination and his constitutional defamation claim.      The

defendants’ motion will be denied as to Payne’s DC-WPA claim

regarding other acts of retaliation given factual disputes

concerning their causation.2

                              BACKGROUND

     In July or August of 2004, Payne was hired as the Assistant

General Counsel for procurement in the Office of the CFO

(“OCFO”).   See Payne v. District of Columbia (Payne II), 859 F.

Supp. 2d 125, 127 (D.D.C. 2012).    In May 2006, Payne was promoted

to Director of Contracts.    Payne v. District of Columbia (Payne

I), 773 F. Supp. 2d 89, 92 (D.D.C. 2011).    “[I]n that capacity,

[Payne] initiated the process of awarding to one of two bidders a

contract to be the service provider for the D.C. lottery.”        Payne

II, 859 F. Supp. 2d at 127.    Payne alleged that after a “fair,

reasonable, and objective competition,” he selected W2I for the

contract.   Id.   “However, the proposed lottery contract was

contingent upon the D.C. Council’s review and approval.”        Id.

     According to Payne, two D.C. Councilmembers “cajoled the

[O]CFO into withdrawing W2I’s contract.”    Id. at 128.    Despite

pressure from the D.C. Council and Gandhi, Payne refused to


     2
       Payne also filed an untimely motion for summary judgment
on his DC-WPA claim that fails to show entitlement to judgment as
a matter of law. That motion will be denied.
                                 -3-

modify the proposed contract and warned “the Councilmembers that

forcibly removing and replacing a joint venturer after completing

the source selection process would be illegal.”      Payne II, 859 F.

Supp. 2d at 128 (alterations and internal quotation marks

omitted).    From April 2008 to July 2008, Payne complained several

times to his supervisor Paul Lundquist, Lundquist’s supervisor

Angell Jacobs, and Gandhi, and filed a complaint with the Office

of Integrity and Oversight (“OIO”) within the OCFO about the

irregularities with the lottery contract and his concerns with

other general contracting practices at the OCFO.     Defs.’ Mot. for

Summ. J. (“Defs.’ Mot.”), Defs.’ Stmt. of Undisputed Material

Facts in Supp. of Mot. for Summ. J. (“Defs.’ Stmt.”) ¶¶ 15-26.

Payne also met with the D.C. Auditor in November 2008 to discuss

these concerns.   Id. ¶ 27.

     During the same time that Payne was voicing his concerns

about the lottery contract and OCFO’s other contract and business

practices, Payne alleges that his duties at the OCFO were being

curtailed.   On May 15, 2008, the OCFO’s General Counsel filed a

complaint against Payne with the OIO.    Id. ¶ 28.   The same day,

Lundquist told Payne “to find another job by September 2008 or he

would be let go.”   Id. ¶ 29.   On July 1, 2008, Payne was told

that he “would be removed from his supervisory role at the OCFO’s

Office of Contracts” and in August 2008, Payne’s change in status
                                -4-

was announced officially.   Id. ¶¶ 30-31.   In October 2008, Payne

“was given an even more limited role” at the OCFO.    Id. ¶ 32.

     On January 9, 2009, Payne was terminated from the OCFO.

Payne alleges that after his termination, “the OCFO made several

defamatory statements about him to the public through major area

newspapers, which impugned his reputation and marketability in

the work place.”   Payne I, 773 F. Supp. 2d at 94 (alterations,

internal quotation marks, and citations omitted).

     The Washington Post article at issue included a statement
     from Mr. Payne that he and other D.C. officials were
     pressured to reopen the lottery contract for bids, as
     well as a statement in response from the CFO’s office
     that “no member of the City Council or their staffs nor
     anyone from the executive branch has made any attempt to
     influence the contract bidding process in any way.”

Id. (alterations omitted) (quoting Tim Craig & Nikita Stewart,

Rule Changes May Help LTE Keep Contract, Wash. Post, Apr. 20,

2009).   Payne alleges that the “latter statement was false and

effectively stated that Mr. Payne lied about facts.”    Id.

(alterations and internal quotation marks omitted).

     After Payne was terminated from the OCFO, he worked

temporarily at “the District of Columbia Housing Authority

[(“DCHA”)] as legal counsel, advising the procurement director.”

Defs.’ Stmt. ¶ 4 (internal quotation marks omitted); Pl.’s Stmt.

of Genuine Issues of Mat. Facts in Dispute ¶ 3(d).    Payne also

started a company, Public Procurement Solutions, where he

“performed work for the District of Columbia Office of
                                  -5-

Contracting and Procurement,” “the Housing Authority of the City

of San Buenaventura, California,” and “a Virginia federal

contracting firm called Interactive Technologies Group.”      Defs.’

Stmt. ¶¶ 5-8.    Payne   earned approximately $50,000 from his work

with Public Procurement Solutions.      Id. ¶ 9.

     Payne filed a five-count amended complaint against the

defendants.    Count One alleges that the defendants violated the

Fifth Amendment by depriving Payne of a liberty interest without

due process.    Counts Two, Three, and Four charge that the

defendants retaliated against Payne.       Count Five alleges that the

defendants intentionally inflicted emotional distress on Payne.3

     The defendants move for summary judgment on Payne’s DC-WPA

claim arguing that the majority of the allegedly retaliatory

actions are barred by the statute of limitations and that Payne

cannot show any causal connection between his allegedly protected

disclosures and his termination from the OCFO.      The defendants

further allege that Payne cannot make out a constitutional

defamation claim.

                              DISCUSSION

     Summary judgment may be granted 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.



     3
       Counts Two and Five were dismissed previously.      See Payne
I, 773 F. Supp. 2d at 99, 102.
                                  -6-

P. 56(a).    A dispute is “genuine” “where the ‘evidence is such

that a reasonable jury could return a verdict for the non-moving

party.’”    Dozier-Nix v. District of Columbia, 851 F. Supp. 2d

163, 166 (D.D.C. 2012) (quoting Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986)).     “To survive a motion for summary

judgment, the nonmoving party must provide evidence showing that

there is a triable issue as to an element essential to that

party’s claim.”     Banks v. Vilsack, 932 F. Supp. 2d 185, 189

(D.D.C. 2013) (internal quotation marks omitted); see also Moore

v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009).     “It is well

settled that conclusory allegations unsupported by factual data

will not create a triable issue of fact.”     Exxon Corp. v. FTC,

663 F.2d 120, 126-27 (D.C. Cir. 1980) (internal quotation marks

omitted).

I.   DC-WPA CLAIM

     To bring a civil action under the DC-WPA, the plaintiff must

timely file his action.     See D.C. Code § 1-615.54.   To establish

a prima facie case of retaliation in violation of the DC-WPA, a

plaintiff must show (1) “that [he] made a protected disclosure,”

(2) “that a supervisor retaliated or took or threatened to take a

prohibited personnel action against [him],” and (3) “that [his]

protected disclosure was a contributing factor to the retaliation

or prohibited personnel action.”     Wilburn v. District of

Columbia, 957 A.2d 921, 924 (D.C. 2008).     “[A]fter a plaintiff
                                 -7-

makes a prima facie case that his ‘protected disclosure’ was a

‘contributing factor’ in his dismissal, the burden shifts to the

defendant to show by clear and convincing evidence that the

[adverse employment action] would have occurred for ‘legitimate,

independent reasons’ even if he had not engaged in activities

protected under the Act.”    Crawford v. District of Columbia, 891

A.2d 216, 219 (D.C. 2006).   “If the defendant can articulate such

a reason for the action, plaintiff then bears the burden of

proving that the explanation for the action is a pretext.”

Coleman v. District of Columbia, 893 F. Supp. 2d 84, 101 (D.D.C.

2012) (citing Crawford, 891 A.2d at 218).   The defendants move

for summary judgment arguing that most of Payne’s claims are

time-barred, that Payne cannot show a causal connection between

his protected disclosures and his termination, and that Payne

cannot show that the defendants’ proffered legitimate, non-

retaliatory reason for terminating him is pretext.4


     4
       Payne also filed a motion arguing that he is entitled to
judgment as a matter of law that his 2008 demotion was
retaliatory. Discovery closed in this case on July 31, 2012.
See Order at 2, ECF No. 95. “Unless a different time is set by
local rule or the court orders otherwise, a party may file a
motion for summary judgment at any time until 30 days after the
close of all discovery.” Fed. R. Civ. P. 56(b). The Local Civil
Rules do not set a different time for filing motions for summary
judgment and the court did not order Payne to file his motion at
a different time. See generally LCvR 7(l) (“A dispositive motion
in a civil action shall be filed sufficiently in advance of the
pretrial conference that it may be fully briefed and ruled on
before the conference.”). Thus, Payne’s motion for summary
judgment was due on August 31, 2012. The defendants moved for an
extension of time to file their dispositive motion. That motion
                               -8-



was granted by minute order on September 7, 2012 and the
defendants were ordered to file their motion for summary judgment
by October 15, 2012. Payne did not move for an extension of time
to file his motion for summary judgment. Nevertheless, Payne
filed his motion for partial summary judgment on October 15,
2012. Accordingly, Payne’s motion is untimely.
     Even if Payne’s motion were filed timely, it would be denied
because Payne has not shown that he is entitled to judgment as a
matter of law that the defendants violated the DC-WPA by demoting
Payne in July 2008 because, among other things, there are genuine
disputes of material fact as to whether Payne’s protected
disclosures were a contributing factor to his demotion.
     A plaintiff can establish causation by showing that the
employer knew about the employee’s protected conduct and that the
adverse employment action occurred shortly thereafter. Clayton
v. District of Columbia, 931 F. Supp. 2d 192, 202 (D.D.C. 2013).
Payne alleges that he made protected disclosures in April 2008
and May 2008. He further alleges that his supervisors at the
OCFO knew about his disclosures before they demoted him in July
2008. Pl.’s Mot. for Partial Summ. J. (“Pl.’s Mot.”), Mem. of P.
& A. in Supp. of Pl.’s Mot. for Partial Summ. J. at 14-16; see
Pl.’s Mot., Ex. D (Paul Lundquist Dep. (“Lundquist Dep.”) at
181:15-17, 19-20) (testifying that he recalled Payne “mentioning
that he had [a concern about an OCFO employee] and wanted OIO to
look into it”); Pl.’s Mot., Ex. B (Eric W. Payne Aff. ¶ 11)
(stating that after June 12, 2008 Bob Andary, the Director of the
OIO at the OCFO, “disclosed to [Payne] that [Andary] had reported
[Payne’s] April 2008 investigation request to Gandhi”).
     The defendants counter that there are genuine disputes of
material fact regarding “whether, how, and how much his
supervisors knew about [Payne’s] disclosures.” Defs.’ Mem. of P.
& A. in Opp’n to Pl.’s Mot. for Partial Summ. J. (“Defs.’ Opp’n”)
at 11. For example, the defendants provide evidence that
Lundquist does not recall whether he knew about the OIO’s
investigation before Payne was demoted. See Lundquist Dep. at
181:9-20. Also, in his deposition, Andary testified that he had
no memory of telling Gandhi that the OIO had initiated an
investigation based on Payne’s disclosure. Defs.’ Opp’n, Ex. V
(Robert Andary Dep. at 152:11-154:2).
     Although Payne provided evidence to support his assertion
that his supervisors at the OCFO knew about his protected
disclosures, the defendants have put forward sufficient evidence
for a reasonable jury to find that Payne’s supervisors at the
OCFO did not know about his disclosures. The genuine dispute of
material fact as to whether Payne’s supervisors knew about his
disclosures precludes a judgment as a matter of law that Payne’s
                                -9-

     A.   Statute of limitations

     The defendants argue that the allegedly retaliatory conduct

that occurred before January 8, 2009 is time-barred under the law

in effect at the time that the conduct occurred.5   See Defs.’

Mot., Mem. of P. & A. in Supp. of Defs.’ Mot. for Summ. J.

(“Defs.’ Mem.”) at 14-15.   Payne counters that the 2010

amendments to the DC-WPA statute of limitations are retroactive

and that under the current statute, his claim based on conduct


protected disclosures were a factor contributing to his demotion.
     Furthermore, Payne bases his causation argument on the
temporal proximity between his employer’s learning of his
protected disclosures and his demotion. However, “an inference
of retaliation cannot rest solely on ‘temporal proximity’ (even
if it is established) where the opportunity for retaliation
conflicts with the opponent’s explicit evidence of an innocent
explanation of the event.” Johnson v. District of Columbia, 935
A.2d 1113, 1120 (D.C. 2007). Here, the defendants provide
evidence that Payne was demoted “after multiple and continued
complaints from both his subordinates and others who interacted
with his office” “because he was not effective as a manager.”
Defs.’ Opp’n at 12. At her deposition, Jacobs testified that in
June 2008, she often received “complaints about his management
style, the way he interacted with [staff], that he was he was a
bully, and that he was retaliatory in his management style.”
Id., Ex. P (Angell Jacobs Dep. at 51:11-52:10). Payne does not
attempt to dispute the defendants’ proffered reason for demoting
him. Thus, he has not shown that there is an undisputed causal
connection between his protected disclosures and his demotion.
     5
       Although Payne did not bring this action until April 30,
2010, the parties entered into a tolling agreement under which
the parties agreed “that all applicable statute of limitations as
to any and all claims that Payne may have against the District of
Columbia, in connection with, related to, or arising from his
employment and termination thereof, shall be tolled and suspended
during the period of time [the] Agreement [was] in effect.”
Defs.’ Mot., Ex. H (Am. Agreement - #2, To Toll Statute of
Limitations ¶ 1). The tolling agreement was in effect from
January 8, 2010 to May 1, 2010. Defs.’ Stmt. ¶¶ 11, 13.
                                -10-

that occurred before January 8, 2009 was filed timely.    See Pl.’s

Opp’n to Defs.’ Mot. for Summ. J. (“Pl.’s Opp’n”) at 19-20.

     Before 2010, to bring a civil action under the DC-WPA, a

complainant was required to file his action “within one year

after a violation occur[red] or within one year after the

employee first [became] aware of the violation.”    D.C. Code § 1-

615.54(a) (2009).   In 2010, an amendment to the statute of

limitations went into effect.   Whistleblower Protection Amendment

Act of 2009, 2010 D.C. Legis. Serv. 18–117 (West).    Under the

current law, a complainant must file his action “within 3 years

after a violation occurs or within one year after the employee

first becomes aware of the violation, whichever occurs first.”

D.C. Code § 1-615.54(a)(2).   The 2010 amendments to the statute

of limitations were made retroactive.    See Sharma v. District of

Columbia, 791 F. Supp. 2d 207, 212-13 (D.D.C. 2011) (discussing

D.C. case law that “establish[es] that the 2010 Amendments to the

statute of limitations . . . are retroactive” because the

amendment was procedural in nature).    Thus, the statute of

limitations as amended in 2010 applies to Payne’s DC-WPA claim.6



     6
       The defendants assert that in Payne I, Judge Friedman held
that the “pre-amendment version” of the DC-WPA applies to Payne’s
claim. Reply to Opp’n to Mot. for Summ. J. at 7. However, in
Payne I, Judge Friedman stated only that the amendment
authorizing an action against individual supervisors was not
given retroactive application. See Payne, 773 F. Supp. 2d at
100. He did not discuss whether the procedural amendments to the
statute of limitations were retroactive.
                               -11-

     In the defendants’ motion for summary judgment, they assume

that the pre-2010 version of the DC-WPA applies to Payne’s claim

and state that under the applicable law, Payne was required to

file his claim “within one year after a violation occurs.”    See

Defs.’ Mem. at 14-15.   The 2010 amendments allow a complainant to

file his claim within the earlier of three years after a

violation occurs or one year after the employee becomes aware of

the violation.   Thus, under the current law, Payne’s claim may

have been filed timely.   In their reply brief, the defendants

argue for the first time that the time began to run when Payne

first became aware of the violation.    See Reply to Opp’n to Mot.

for Summ. J. (“Defs.’ Reply”) at 8-9.   Arguments raised for the

first time in reply briefs are not considered.   See Am. Wildlands

v. Kempthorne, 530 F.3d 991, 1001 (D.C. Cir. 2008); Rollins

Envtl. Servs. (NJ) Inc. v. EPA, 937 F.2d 649, 652 n.2 (D.C. Cir.

1991).   But the defendants further contend that Payne “has not

argued that he was unaware of his claims at the time each alleged

discriminatory retaliation occurred.”   Defs.’ Reply at 8

(internal quotation marks omitted).    However, under D.C. law, the

defendants bear the burden of demonstrating that Payne’s claims

are time-barred.   See Oparaugo v. Watts, 884 A.2d 63, 73 (D.C.

2005).   Because the defendants have not shown that the one-year

statute of limitations applies to Payne’s claim, the defendants’
                                -12-

motion for summary judgment on the allegedly retaliatory conduct

that occurred before January 8, 2009 will be denied.

     B.    Causal connection between protected activity and
           termination

     To establish a prima facie case of retaliation in violation

of the DC-WPA, a public employee must show that a protected

disclosure was a contributing factor in the prohibited personnel

action.   However, to prevail on such a claim at trial, “‘a jury

must find a direct causal link’” between a protected disclosure

and the retaliatory action.    See Johnson v. District of Columbia,

935 A.2d 1113, 1119 (D.C. 2007).    “Essentially, then, liability

under the Whistleblower Protection Act is measured under a ‘but

for’ analysis.”   Id.   The defendants argue that Payne cannot

demonstrate that his protected disclosures were even a

contributing factor in, let alone a but for cause of, his

termination.   See Defs.’ Mem. at 15-16.   Payne counters that

“temporal proximity” between his protected disclosures and

termination and a record that “shows a consistent ongoing animus

against him following his earliest protected disclosures”

demonstrate causation.    Pl.’s Opp’n at 20.

     “A plaintiff may show causation through direct evidence or

circumstantial evidence, such as by showing . . . a close

temporal proximity between the employer’s knowledge and the

adverse actions.”   Clayton v. District of Columbia, 931 F. Supp.

2d 192, 202 (D.D.C. 2013) (citing Rattigan v. Gonzales, 503 F.
                                -13-

Supp. 2d 56, 77 (D.D.C. 2007); Johnson, 935 A.2d at 1120–21).

“The cases that accept mere temporal proximity between an

employer’s knowledge of protected activity and an adverse

employment action as sufficient evidence of causality to

establish a prima facie case uniformly hold that the temporal

proximity must be very close[.]”    Clark Cnty. Sch. Dist. v.

Breeden, 532 U.S. 268, 273 (2001) (internal quotation marks

omitted).   “[T]he cases cited by the Breeden Court seem to

suggest that if a plaintiff relies upon temporal proximity alone

to establish causation, the time span must be under three

months.”    Buggs v. Powell, 293 F. Supp. 2d 135, 148 (D.D.C.

2003).   The parties agree that Payne engaged in protected conduct

through November 2008 when Payne met with the D.C. Auditor.

Defs.’ Stmt. ¶ 27.7   While the defendants concede that the OCFO



     7
       In his opposition, Payne suggests that he engaged in
protected conduct through December 2008 when the Office of the
Inspector General completed its “extensive investigation of
Payne’s charges.” Pl.’s Opp’n at 22-23. Payne cites Exhibit 17
to his opposition to support his argument but unhelpfully, does
not provide specific citations to where in the 68-page exhibit
(much of which contains illegible handwritten notes) the nature
and date of Payne’s allegedly protected conduct is discussed.
Although a “district court is under no obligation to sift through
the record” to decide a motion for summary judgment, Jackson v.
Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 154
(D.C. Cir. 1996), a modest review of Exhibit 17 reveals several
references to a June 20, 2008 conversation between Payne and
“Case Agent” Johnnie Bright. See, e.g., Pl.’s Opp’n, Ex. 17 at
24. However, the Exhibit does not appear to support Payne’s
assertion that his protected conduct lasted through December
2008. Thus, Payne has not demonstrated that he engaged in
protected conduct through December 2008.
                                 -14-

knew about Payne’s protected disclosures through July 2008, see

Suppl. Mem. in Supp. of Summ. J. Addressing Pl.’s Ex. 17 at 3,

the defendants contend that “even after all the discovery taken

in this case, there is no evidence that anyone at the OCFO knew

about [Payne’s] meeting [with the D.C. Auditor],” Defs.’ Mem. at

19.   Citing Exhibit 17 to his opposition, Payne counters that the

“Defendants were well aware of Plaintiff’s protected disclosures,

prior to the May 15, 2008 action and prior to [Payne’s

termination].”   Pl.’s Opp’n at 23.     However, Payne does not point

to any place in the exhibit to support this assertion or to

demonstrate that anyone at the OCFO knew about the November

meeting.   Because Payne has not shown that the defendants knew

about his protected conduct in November 2008, only Payne’s

protected conduct through July 2008 will be considered.

      Payne was terminated in January 2009.    The passage of six

months between Payne’s protected conduct and termination is,

without more, insufficient to establish a causal connection.     See

Buggs, 293 F. Supp. 2d at 148.    Accordingly, Payne cannot rely

alone on the temporal proximity between his protected conduct and

termination to establish causation.

      Although Payne cannot show causation through temporal

proximity, “‘temporal proximity is but one method of proving

retaliation.   Evidence of discriminatory or disparate treatment

in the time period between the protected activity and the adverse
                                 -15-

employment action can be sufficient to show a causal

connection.’”    Id. at 149 (alteration omitted) (quoting Che v.

Mass. Bay Transp. Auth., 342 F.3d 31, 38 (1st Cir. 2003)).

“[W]here there is a lack of temporal proximity, circumstantial

evidence of a pattern of antagonism following the protected

conduct can also give rise to the inference.’”    Id. (internal

quotation marks omitted) (quoting Kachmar v. SunGard Data Sys.,

Inc., 109 F.3d 173, 177 (3d Cir. 1997)).    For example, in Buggs,

the plaintiff claimed that he was denied promotions in

retaliation for engaging in protected conduct.    See id. at 147.

There, the court found that a seven-month span between the

plaintiff’s protected conduct and the plaintiff’s non-promotion

was, by itself, insufficient to establish causation.    See id. at

149.    Nonetheless, the court found that “the proffered evidence

as a whole, when viewed in the light most favorable to the

plaintiff, creates an inference of retaliatory discrimination

with respect to the plaintiff’s non-[promotion], even though its

proximity to the protected activity would not alone support such

an inference.”    Id.   Specifically, the court found that the same

decisionmaker was responsible for a number of allegedly

retaliatory actions that occurred over a span of time.      Id. at

149-50.

       Here, Payne argues that “his protected disclosures

consistently and continuously resulted in Defendants’ repeated,
                               -16-

escalating acts of retaliation which . . . culminated in his

termination on January 9, 2009.”   Pl.’s Opp’n at 24.   Payne

alleges that as he continued to make protected disclosures, the

OCFO’s actions turned from internal complaints to threats that

Payne would be terminated, and from threats to formal action to

change Payne’s status, reduce Payne’s duties, and ultimately

terminate him.   Payne also alleges that the same OCFO employees

were responsible for these adverse employment actions.    During

this time, Payne also made numerous protected disclosures.      Given

Payne’s protected disclosures from April 2008 through July 2008

and evidence of the allegedly retaliatory actions, there is

sufficient evidence from which a reasonable jury could find a

causal connection between Payne’s protected disclosures and his

termination from the OCFO.8

     C.   Legitimate, independent reason for Payne’s termination

     The defendants argue that Payne would have been terminated

even if he had not engaged in protected conduct because “he

missed work and did not complete assignments.”   Defs.’ Mem. at



     8
       The defendants argue that protected “disclosures made
after an employer has contemplated taking an adverse action
cannot support a [DC-]WPA claim.” Defs.’ Mem. at 17 (emphasis
omitted). While a plaintiff relying solely on temporal proximity
cannot establish causation where an employer had contemplated an
adverse employment act before the employee engaged in protected
activity, see Breeden, 532 U.S. at 272, the defendants have not
shown that Payne cannot rely on retaliatory actions that occurred
after the OCFO contemplated terminating Payne to prove causation
by showing a pattern of antagonism.
                                 -17-

20.   In support of this proffered reason, the defendants provide

numerous e-mails that discuss Payne missing deadlines and not

reporting to work as required.    See Defs.’ Mot., Exs. D-E.    The

defendants also provide an e-mail from Lundquist to Payne asking

Payne to explain discrepancies between the start time Payne

listed on his timesheet and the first time Payne used his card

key to enter his office on the given day.    See Defs.’ Mot, Ex. F.

      Payne argues that the defendants’ have not shown by clear

and convincing evidence that Payne was terminated because he

missed deadlines and did not report to work.    Pl.’s Opp’n at 30-

31.   “Clear and convincing evidence is such that ‘will produce in

the mind of the trier of fact a firm belief or conviction as to

the facts sought to be established.’”    Brown v. The George

Washington Univ., 802 A.2d 382, 386 n.6 (D.C. 2002) (quoting In

re D.I.S., 494 A.2d 1316, 1326 (D.C. 1985)).    Thus, the standard

“generally requires the trier of fact, in viewing each party’s

pile of evidence, to reach a firm conviction of the truth on the

evidence about which he or she is certain.”    United States v.

Montague, 40 F.3d 1251, 1255 (D.C. Cir. 1994).    Here, Payne

argues that the discrepancies between Payne’s timesheet and his

card key access data do not establish conclusively that Payne

falsified his time sheet.   See Pl.’s Opp’n at 30.   Payne also

provides evidence that during this same time he was working on

some assignments.   See Pl.’s Opp’n at 31, Ex. 15.   Payne’s
                                -18-

argument and evidence show that the defendants have not

established conclusively their legitimate non-retaliatory reason

for terminating Payne.    However, the clear and convincing

evidence standard does not require such certainty.     See Hopkins

v. Price Waterhouse, 737 F. Supp. 1202, 1204 n.3 (D.D.C. 1990)

(“The clear and convincing standard . . . requires a degree of

persuasion higher than mere preponderance of the evidence, but

still somewhat less than clear, unequivocal and convincing or

beyond a reasonable doubt.” (internal quotation marks omitted)

(quoting Collins Sec. Corp. v. SEC, 562 F.2d 820, 824 (D.C. Cir.

1977)).   By providing evidence that Payne’s supervisor and

colleagues reported that Payne was missing deadlines and not

reporting to work, the defendants have provided sufficient

evidence to produce in the mind of a reasonable jury a firm

conviction that Payne missed deadlines and did not report to work

as required.

     Payne also argues that the defendants’ reason is pretextual.

Specifically, Payne asserts that the defendants offered

inconsistent testimony regarding who decided to terminate Payne.

Pl.’s Opp’n at 27-30.    However, the evidence Payne cites does not

support his assertion.    In its response to Payne’s

interrogatories, D.C. stated that “Paul Lundquist, Angell Jacobs

and LaSharn Moreland were involved in the decision to terminate

plaintiff.”    Pl.’s Opp’n, Ex. 21 (Def. D.C.’s Answers to Pl.’s
                               -19-

Interrogs.) at 3.   Payne contends that Lundquist testified at his

deposition that Gandhi was the only person involved in deciding

to terminate Payne.   However, the allegedly supporting page in

Lundquist’s deposition is omitted from the plaintiff’s exhibit

and the submitted portions of Lundquist’s deposition do not

support Payne’s contention.   See Pl.’s Opp’n, Ex. 8 (Lundquist

Dep. 11/9/11 at 46:9-12) (testifying he did not recall whether he

told Payne that his termination “represented, quote, unquote, the

will of [Gandhi]”).

     Payne further argues that there is a “factual inconsistency”

regarding whether Lundquist and Gandhi discussed Payne’s

performance during regularly scheduled meetings.   During his

deposition, Lundquist testified that he did not recall meeting

with Gandhi to discuss Payne in November 2008, December 2008, or

January 2008.   Pl.’s Opp’n, Ex. 9 (Lundquist Dep. 2/13/12 at

167:5-14).   Payne argues that Lundquist’s testimony is at odds

with D.C.’s statement in its response to its interrogatories.

However, Payne did not cite any evidence to support this

proposition.9


     9
       Payne also alleges that he has reason to believe that his
December 29, 2008 performance review was “created after the fact
to justify Defendant’s termination of Plaintiff.” Pl.’s Opp’n at
26. This unsupported, conclusory assertion is insufficient to
show pretext. Moreover, the defendants did not offer the
performance evaluation as evidence of their legitimate, non-
retalitory reason for terminating Payne. Although a
“factfinder’s disbelief of the reasons put forward by the
defendant (particularly if disbelief is accompanied by a
                                  -20-

      Because the defendants provided clear and convincing

evidence of their legitimate reason for terminating Payne and

Payne did not offer admissible evidence that the explanation is

pretextual, summary judgment will be entered for the defendants

on Payne’s DC-WPA claim that he was terminated in retaliation for

making protected disclosures.

II.   CONSTITUTIONAL DEFAMATION

      The defendants move for summary judgment on Payne’s

constitutional defamation claim arguing that Payne cannot make

out a claim because he has been employed in his chosen profession

since his termination from the OCFO.       See Defs.’ Mem. at 10-12.

      “A claim for deprivation of a liberty interest without due

process based on the defamatory statements of government

officials in combination with a termination may proceed on one of

two theories.”   Holman v. Williams, 436 F. Supp. 2d 68, 78

(D.D.C. 2006).   A plaintiff may bring a “reputation-plus” claim

or a “stigma or disability” claim.       See id. at 78-79.   Here,

Payne’s claim turns on “a continuing stigma or disability arising

from official action.”   Payne I, 773 F. Supp. 2d at 95 (internal

quotation marks omitted).


suspicion of mendacity) may, together with the elements of the
prima facie case, suffice to show [retaliation],” St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993), Payne has not
demonstrated that there is evidence in the record that a jury
could use to find that the defendants are lying about their
proffered legitimate non-retaliatory reason for terminating
Payne.
                               -21-

     To prevail in a “stigma or disability” claim, the plaintiff

must “demonstrate that [the] government ‘imposed on him a stigma

or other disability that foreclosed his freedom to take advantage

of other employment opportunities.’”   McCormick v. District of

Columbia, 899 F. Supp. 2d 59, 65 (D.D.C. 2012) (quoting Bd. of

Regents of State Colleges v. Roth, 408 U.S. 564, 573 (1972)).

The Fifth Amendment guarantees the “right to follow a chosen

trade or profession.”   Cafeteria & Rest. Workers Union, Local 473

v. McElroy, 367 U.S. 886, 895-96 (1961).   Thus, a plaintiff’s

liberty interest is implicated if an official government action

precludes the plaintiff from pursuing his chosen career or

profession.   See Kartseva v. Dep’t of State, 37 F.3d 1524,

1528-29 (D.C. Cir. 1994); see also Holman, 436 F. Supp. 2d at 80

(explaining that the official action must be one that “has 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” (internal quotation

marks omitted)).

     Here, Payne claims that the OCFO’s comments in the

Washington Post about Payne’s termination “suggested that

Plaintiff was dishonest, a liar and terminated for reasons

related to performance.”   Am. Compl. ¶ 73.   Payne further alleges

that the OCFO’s statements about “Plaintiff’s professional

competence and reputation . . . placed a significant roadblock on
                                -22-

his ability to obtain permanent full time employment in his

chosen field of contract procurement law” and “created a stigma

that foreclosed Plaintiff’s freedom to take advantage of other

employment opportunities, including pursuing employment in his

chosen field as an attorney interested in government

procurement.”   Id. ¶¶ 74-75.   The defendants contend that Payne’s

temporary employment with the DCHA as “legal counsel, advising

the procurement director” and Payne’s brief involvement with

Public Procurement Solutions demonstrate that Payne has not been

precluded from pursuing his chosen profession.    See Defs.’ Mem.

at 11-12.   Payne does not dispute that his temporary position

with the DCHA and work with Public Procurement Solutions were

positions in his chosen profession.    Instead, Payne argues that

despite his “limited, temporary employment,” a reasonable jury

could still find that he has been foreclosed from his chosen

profession.   See Pl.’s Opp’n at 16.

     A plaintiff’s employment in his chosen field, even if

temporary, suffices to defeat his “stigma or disability”

constitutional defamation claim.    In Alexis v. District of

Columbia, 44 F. Supp. 2d 331 (D.D.C. 1999), the plaintiffs

claimed that the defendants violated their Fifth Amendment

liberty interests by defaming them and the defendants moved for

summary judgment on this claim.    “Four of the plaintiffs

aver[red] that they ha[d] had no success obtaining employment
                                 -23-

within their respective fields despite repeated attempts to do

so.”    Id. at 341 (emphasis added).    As to those plaintiffs, the

court denied the defendants’ motion for summary judgment, in

part, because the plaintiffs provided evidence that “they ha[d]

been denied employment within their professions altogether.”     Id.

Two other plaintiffs “acknowledge[d] that subsequent to their

termination from District government employment, they ha[d] had

opportunities, albeit temporary ones, to work within their

professions.”    Id. at 342.   Thus, the court concluded that

“[n]otwithstanding the fact that the positions each plaintiff

secured were not permanent, and thus were understandably

unsatisfactory to them,” these plaintiffs had failed to show that

they were foreclosed from their chosen profession.     Id.   Because

“[n]o reasonable jury could find that they ha[d] been precluded

from employment in their respective fields,” the court granted

the defendant’s motion for summary judgment as to these

plaintiffs.    Id.

       Thus, even though Payne’s firm, Public Procurement

Solutions, ultimately failed and he was employed only temporarily

with the DCHA, no reasonable jury could find that Payne has been

precluded from employment as an attorney specializing in

government procurement.    Accordingly, the defendants’ motion for
                                 -24-

summary judgment on Payne’s constitutional defamation claim will

be granted.10

                         CONCLUSION AND ORDER

     The defendants did not show that Payne’s DC-WPA claim based

on retaliatory action that occurred before January 8, 2009 is

time-barred, but Payne did not rebut the defendants’ legitimate,

non-retaliatory reason for terminating him from the OCFO.

Payne’s untimely-filed cross-motion for summary judgment did not

establish undisputed material facts about why he was demoted.

Because Payne was temporarily employed in his chosen field after

the defendants made their allegedly defamatory statements, he

cannot show that he has been precluded from following his chosen

profession.     Payne’s wrongful termination claim is subsumed by

his DC-WPA claim.     Accordingly, it is hereby

     ORDERED that the defendants’ motion [129] for summary

judgment be, and hereby is, GRANTED IN PART and DENIED IN PART.

Summary judgment is entered for the defendants on Payne’s claim

in Count Three that he was retaliatorily terminated from the

OCFO, and on Counts One and Four.       Summary judgment is denied as

to Payne’s other claims of retaliation in Count Three.




     10
       Additionally, because Payne has not disputed the
defendants’ assertion that this is the only remaining claim
against Gandhi, Defs.’ Mem. at 7, 8, 12, Gandhi will be dismissed
from this action.
                               -25-

Dr. Natwar Gandhi is dismissed as a party defendant.       It is

further

     ORDERED that Payne’s motion [130] for partial summary

judgment be, and hereby is, DENIED.    It is further

     ORDERED that Payne’s motion [168] for a status conference

be, and hereby is, GRANTED.   The parties shall appear for a

scheduling conference on December 17, 2013 at 11:00 a.m.

     SIGNED this 3rd day of December, 2013.



                                               /s/
                                      RICHARD W. ROBERTS
                                      Chief Judge
