CLAYTON v. DISTRICT OF COLUMBIA et al

Filing 34

MEMORANDUM OPINION AND ORDER granting in part and denying in part the District of Columbia's motion 26 to dismiss and granting the District of Columbia National Guard's motion 27 to dismiss. Signed by Judge Richard W. Roberts on 3/21/13. (lcrwr2)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
)
)
Plaintiff,
)
)
v.
)
)
DISTRICT OF COLUMBIA, et al., )
)
Defendants.
)
______________________________)
BETTY CLAYTON,

Civil Action No. 11-1889 (RWR)

MEMORANDUM OPINION AND ORDER
Plaintiff Betty Clayton brings suit against the District of
Columbia (“District”) and the District of Columbia National Guard
(“DCNG”), alleging that the District violated the D.C.
Whistleblower Protection Act (“DC-WPA”), D.C. Code § 1-615.51 et
seq., the D.C. False Claims Act (“DC-FCA”), D.C. Code § 2-381.01
et seq.,1 and D.C. common law by retaliating against her for
making protected disclosures and for engaging in other protected
conduct, and the defendants violated the United States
Constitution by depriving her of her property interest in her
employment without due process.2

Clayton also seeks a

1

Clayton brings her claims under D.C. Code § 2-308.16 et
seq. However, after Clayton filed her amended complaint, the DCFCA was recodified at D.C. Code § 2-381.01 et seq.
2

Although Clayton’s amended complaint appears to allege all
five counts against the District and the DCNG, Clayton states in
her opposition to the defendants’ motions to dismiss that “the
crux of Plaintiff’s claim against DCNG is as to the due process
violations.” Pl.’s Consolidated Opp’n to Defs.’ D.C. & D.C.
Nat’l Guard’s Mots. to Dismiss Am. Compl., Mem. of P. & A. in

-2declaratory judgment that D.C. Code § 1-609.58(a) is
unconstitutional.

The defendants move to dismiss the complaint

under Federal Rule of Civil Procedure 12(b)(6) for failure to
state a claim, and the DCNG moves under Rule 12(b)(1) to dismiss
the complaint for lack of subject matter jurisdiction.

Because

the court lacks subject matter jurisdiction over Clayton’s claims
against the DCNG, the DCNG’s motion to dismiss will be granted.
Because Clayton had amply pled a causal connection between her
protected disclosures and the adverse employment action and shown
that her DC-WPA claim is not time-barred, Clayton’s claims under
DC-WPA and DC-FCA against the District will not be dismissed.
Because Clayton failed to state a claim against the District
under D.C. common law and the Fifth Amendment of the U.S.
Constitution, Counts Three, Four, and Five of Clayton’s amended
complaint will be dismissed as to the District.
BACKGROUND
Clayton’s amended complaint makes the following factual
assertions.

In June 2008, Clayton was appointed as the Director

of the D.C. Government Operations Division of the DCNG.
Compl. ¶ 5.

Am.

The D.C. Government Operations Division is

“simultaneously a Directorate within Joint Force [Headquarters],
DC National Guard and an agency of the Government of the District

Supp. of Pl.’s Consolidated Opp’n to Defs.’ D.C. & D.C. Nat’l
Guard’s Mots. to Dismiss Am. Compl. (“Pl.’s Opp’n”) at 35 n.3.

-3of Columbia.”

Id. ¶ 9.3

When Clayton was appointed, the

Director of the D.C. Government Operations Division was a Career
Service position.

Id. ¶ 6.4

During the events relevant to the

complaint, Clayton reported to Major General Errol Schwartz, the
Commanding General of the Joint Force Headquarters of the DCNG.
Id. ¶¶ 7, 13.

General Schwartz also completed Clayton’s

performance evaluations and Clayton always received “flawless
employment appraisals.”

Id. ¶ 10.

As the Commanding General of

the DCNG, General Schwartz is a federal employee of the
Department of Defense.

See D.C. Code § 49-301(b).

As the agency head, Clayton was “under an obligation and
duty to investigate and discipline potential wrongdoing at the
DCNG as well as report fraud, waste and abuse.”

Am. Compl. ¶ 11.

In this capacity, from April 2010 through August 2010, Clayton
reported several incidents of unlawful conduct within the DCNG.
For example, Tamera Jones, General Schwartz’s administrative
assistant, filed a sexual harassment complaint against the
General.

Id. ¶ 14.

Despite pressure from Judge Advocate General

(“JAG”) and federal Inspector General investigators “to not file

3

“The Division serves as the primary link between the
District and the DCNG[.]” Def. D.C.’s Mot. to Dismiss the Am.
Compl., Mem. of P. & A. in Supp. of Def. D.C.’s Mot. to Dismiss
the Am. Compl. (“District’s Mem.”) at 3.
4

A Career Service employee “can be terminated only for
‘cause,’ and such terminations are subject to appeal to the
District’s Office of Employee Appeals (‘OEA’).” District’s Mem.
at 3-4 (citing D.C. Code. § 1-608.01(a)(13); Am. Compl. ¶ 104).

-4or report the sexual harassment allegations made by Ms. Jones[,]”
Clayton reported Jones’s allegations in April 2010.
18.

Id. ¶¶ 16-

Shortly after Clayton reported the sexual harassment

complaint, General Schwartz threatened Clayton saying “we’ll see
who’s sitting in that seat on October 1st.”

Id. ¶¶ 19-20.

General Schwartz made similar termination threats in June or July
2009, January 2010, and September 2010.

Id. ¶ 68.

Later, Clayton reported that Charlotte Clipper, the Human
Resources Supervisor of the D.C. Government Operations Division,
had “engaged in behavior that was inappropriate and against
policy on numerous occasions.”

Id. ¶¶ 8, 22.

For example,

Clayton reported that Clipper had used a DCNG credit card to
illegally pay for attorney’s fees for a non-work-related matter
for a former employee, and that Clipper had promoted herself,
“wrote her own performance evaluation for an incentive award,”
and “inappropriately removed paychecks from the DCNG building[.]”
Id. ¶¶ 24-29, 32.

Again, JAG investigators tried to stop Clayton

from reporting Clipper’s violations, id. ¶¶ 36-37, but Clayton
reported the violations, id. ¶ 38.

Clayton also reassigned

Clipper and attempted to have her terminated from the DCNG.
¶ 40.

Id.

Clayton reported these and other violations to General

Schwartz.

Id. ¶ 65.

In May 2010, “General Schwartz’s staff solicited the advice
of the D.C. Human Resources Department’s General Counsel

-5regarding General Schwartz’s administrative authority over the
employees of the Government Operations Division.”

Id. ¶ 70.

On

August 27, 2010, Attorney General Nickles responded to
General Schwartz’s inquiry stating that the Division is a
“subordinate agency of the Mayor of the District of Columbia” and
that the Director of the Government Operations Division is “a
District employee” who is “subject to the personnel rules,
regulations, laws and the policy of the District[.]”

Def. D.C.’s

Mot. to Dismiss the Am. Compl. (“District’s Mot.”), Ex. (Letter
from Peter J. Nickles, Attorney General for the District of
Columbia, to Major General Erroll [sic] R. Schwartz, Commanding
General, District of Columbia National Guard (Aug. 27, 2010) at
1-2).

The Director’s “chief responsibility” is “[s]upervision of

District personnel assigned to the DCNG.”

Id. at 2.

Although

the Division is a District agency, in light of the Division’s
mission “to facilitate the coordination of operational programs
so that the National Guard can efficiently respond to natural and
civil emergencies in the District,” the Commanding General has
“the opportunity to collaborate with District officials regarding
the personnel matters of the Division[.]”

Id.

The Commanding

General is also “free to confer with the Mayor” on personnel
matters “if personnel problems rise to the level where it impacts
the readiness of the National Guard[.]”

Id.

-6In August 2010, Clayton also met with Attorney General
Nickels to discuss “the interplay between the Government
Operations Division of the DCNG and the DCNG.”

Am. Compl. ¶ 77.

The Attorney General told Clayton that she should report to Neil
Albert, the District of Columbia City Administrator and a close
personal friend of General Schwartz.

Id.

After meeting with the

Attorney General, Clayton contacted Albert numerous times but was
told that Albert could meet with her no sooner than mid-November
2010.

Id.
On September 27, 2010, Clayton received a letter stating

that the Director position was being reclassified from a Career
Service position to an at-will, Management Supervisory Service
(“MSS”) position under D.C. Code § 1-609.58(a).5

5

Id. ¶¶ 74, 78.

D.C. Code § 1-609.58(a) provides:
Persons currently holding appointments to positions in
the Career Service who meet the definition of
“management employee” as defined in § 1-614.11(5) shall
be appointed to the Management Supervisory Service
unless the employee declines the appointment. Persons
declining appointment shall have priority for
appointment to the Career Service if a vacant position
for which they qualify is available within the agency
and is acceptable to the employee. If no such vacant
position is available, a 30-day separation notice shall
be issued to the employee, who shall be entitled to
severance pay in the manner provided by § 1-624.09.
D.C. Code § 1-609.58. This provision was added to the D.C.
Government Comprehensive Merit Personnel Act in June 1998. Even
though the language of the statute uses the modifier “currently,”
it appears that the District has previously used the process
outlined in the statute to reappoint to an MSS position a
management employee who was appointed to a Career Service
position after 1998. See, e.g., Final Brief for Appellees,
Geleta v. Gray, 645 F.3d 408 (D.C. Cir. 2011) (No. 10-7026), 2010

-7After learning that there were no vacant Career Service
positions, Clayton accepted that her Director position would be
converted to an MSS position.

Id. ¶ 75.

On October 26, 2010,

Clayton received a notification from Albert that she was being
terminated without cause effective November 10, 2010.

Id. ¶ 76.

On October 26, 2011, Clayton filed suit against the District
and the DCNG.

In Clayton’s five-count amended complaint, Clayton

alleges in Counts One and Two that the District retaliated
against her for making protected disclosures and engaging in
protected conduct in violation of the DC-WPA and the DC-FCA
respectively.

Id. ¶¶ 86-97.

Count Three alleges that the

District wrongfully terminated Clayton in violation of District
of Columbia common law.

Id. ¶¶ 98-102.

Count Four alleges that

the District and the DCNG violated Clayton’s constitutional due
process rights by depriving Clayton of her protected property
interest in her employment and right to seek review of any
termination of her employment with the Office of Employee Appeals
(“OEA”) without due process, and seeks money damages for the
constitutional violation.

Id. ¶¶ 103-07.

Count Five seeks a

WL 6368292, at *12, *23-24. A “management employee” is “any
person whose functions include responsibility for project
management and supervision of staff and the achievement of the
project’s overall goals and objectives.” D.C. Code § 1-614.11
(emphasis added). Thus, the Director of D.C. Government
Operations -- as described in the Attorney General’s letter -- is
a management employee subject to D.C. Code § 1-609.58.

-8declaratory judgment that D.C. Code § 1-609.58(a) is
unconstitutional on its face and as applied.

Id. ¶ 117 & 18-19.

The DCNG moves to dismiss the counts against it under Rule
12(b)(1) because neither Congress nor the DCNG has waived
sovereign immunity for Clayton’s constitutional claims.

D.C.

Nat’l Guard’s Mot. to Dismiss, D.C. Nat’l Guard’s Mem. in Supp.
of Mot. to Dismiss (“DCNG’s Mem.”) at 6-9.

The District also

moves to dismiss the amended complaint under Rule 12(b)(6).
District’s Mot. at 1.

Clayton opposes.
DISCUSSION

I.

CLAIMS AGAINST THE DCNG
Clayton’s amended complaint seeks damages from the DCNG

under the Fourteenth Amendment and a declaratory judgment that
D.C. Code § 1-609.58(a) is unconstitutional.

The DCNG argues

that both counts must be dismissed because they are barred by
sovereign immunity.

DCNG’s Mem. at 6-9.

“Absent a waiver, sovereign immunity shields the Federal
Government and its agencies from suit.”

FDIC v. Meyer, 510 U.S.

471, 475 (1994); United States v. Mitchell, 463 U.S. 206, 212,
(1983) (“It is axiomatic that the United States may not be sued
without its consent and that the existence of consent is a
prerequisite for jurisdiction.”).

“A waiver of sovereign

immunity ‘must be unequivocally expressed in statutory text, and
will not be implied.’”

Kurtz v. United States, 798 F. Supp. 2d

-9285, 289 (D.D.C. 2011) (quoting Lane v. Pena, 518 U.S. 187, 192
(1996)).

If sovereign immunity has not been waived, a claim is

subject to dismissal under Rule 12(b)(1) for lack of subject
matter jurisdiction.

Mullen v. Bureau of Prisons, 843 F. Supp.

2d 112, 116 (D.D.C. 2012); see also Meyer, 510 U.S. at 475
(stating that “[s]overeign immunity is jurisdictional in
nature”).

“Plaintiff bears the burden of establishing that

sovereign immunity has been abrogated.”

Stone v. Dep’t of Hsg. &

Urban Dev’t, 859 F. Supp. 2d 59, 63 (D.D.C. 2012).
In considering a motion to dismiss for lack of subject
matter jurisdiction, a court “treat[s] the complaint’s factual
allegations as true” and “grant[s] plaintiff ‘the benefit of all
inferences that can be derived from the facts alleged[.]’”
Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir.
2000) (quoting Schuler v. United States, 671 F.2d 605, 608 (D.C.
Cir. 1979)).

However, “[b]ecause subject matter jurisdiction

focuses on the court’s power to hear the claim, . . . the court
must give the plaintiff’s factual allegations closer scrutiny
when resolving a Rule 12(b)(1) motion than would be required for
a Rule 12(b)(6) motion[.]”

Aref v. Holder, 774 F. Supp. 2d 147,

159 (D.D.C. 2011).
Clayton does not dispute the DCNG’s assertion that the DCNG
is a federal entity.

Even if she did, “‘[i]t is apparent that

the organized militia of the District of Columbia, which is

-10organized, armed, and controlled by the President of the United
States, is essentially a component of the federal government.’”
Lilly v. Schwartz, 713 F. Supp. 2d 15, 19 n.2 (D.D.C. 2010)
(quoting Seegars v. Ashcroft, 297 F. Supp. 2d 201, 241 (D.D.C.
2004)).

In light of the “degree of supervision and control

exercised over the District Guard in peacetime by federal
authorities[,]” the DCNG is a federal entity during times of
peace and times of war.

O’Toole v. United States, 206 F.2d 912,

917-18 (3d Cir. 1953).
Despite the DCNG’s status as a federal entity, Clayton
argues that the court has subject matter jurisdiction over
Clayton’s claim for damages allegedly caused by the DCNG’s
constitutional violation because federal courts have jurisdiction
to hear military personnel decisions where constitutional wrongs
are alleged.

Clayton primarily relies on two cases for her

argument: Lilly and Larsen v. U.S. Navy, 486 F. Supp. 2d 11
(D.D.C. 2007).

However, neither case provides support for

Clayton’s argument that the United States has waived sovereign
immunity for claims for damages caused by constitutional
violations.

In Lilly, the plaintiff brought suit challenging his

removal from the DCNG and alleging that “the procedures that led
to his separation were inadequate.”
17.

Lilly, 713 F. Supp. 2d at

There, the plaintiff sought an equitable remedy in the form

of reinstatement to full active duty.

Id. at 16.

Similarly, in

-11Larsen, the plaintiff sought review of a military personnel
decision, alleging a constitutional violation and seeking
equitable remedies, and the court held that sovereign immunity
did not bar the claim.

See Larsen, 486 F. Supp. 2d at 16-17.

While these cases support a finding that constitutional
violations in military personnel decisions can be reviewed by
federal district courts, they do not disrupt the well-settled
principle that sovereign immunity bars claims against federal
agencies for damages caused by constitutional violations.

See

Meyer, 510 U.S. at 486 (holding that a remedy under Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971), is not available against the agencies of the federal
government); Duarte v. United States, 532 F.2d 850, 852 (2d Cir.
1976).

Because Clayton has not met her burden to establish that

this court has subject matter jurisdiction over her
constitutional claim for damages, Count IV of her amended
complaint will be dismissed as against the DCNG.
The DCNG also argues that the court does not have subject
matter jurisdiction over Clayton’s claim against it for a
declaratory judgment that D.C. Code § 1-609.58(a) is
unconstitutional.

Clayton asserts that this court has

jurisdiction to hear her claims under 28 U.S.C. §§ 1332 and 1367.
Am. Compl. ¶ 4.
immunity.

However, neither statute waives sovereign

See Reading v. United States, 506 F. Supp. 2d 13,

-1220-21 (D.D.C. 2007).

Similarly, the Declaratory Judgment Act, 28

U.S.C. § 2201, provides a remedy where the court already has
jurisdiction, but the Act does not waive sovereign immunity.

See

Stone v. Holder, 859 F. Supp. 2d 48, 52 (D.D.C. 2012) (citing
Walton v. Fed’l Bureau of Prisons, 533 F. Supp. 2d 107, 114
(D.D.C. 2008)).

Because Clayton has not demonstrated that

sovereign immunity has been abrogated for her claim seeking
declaratory relief, Count V will be dismissed as to the DCNG.6
II.

CLAIMS AGAINST THE DISTRICT
The District alleges that Clayton’s amended complaint should

be dismissed because it fails to state a claim against it.
A district court can dismiss a complaint under Rule 12(b)(6)
when the complaint “fail[s] to state a claim upon which relief
can be granted[.]”

Fed. R. Civ. P. 12(b)(6); see also Browning

v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002) (“A Rule 12(b)(6)
motion tests the legal sufficiency of a complaint[.]”).
To 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.” A claim has facial plausibility when the
plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is
liable for the misconduct alleged.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

6

Moreover, Clayton has not established that it would be
proper to sue DCNG -- a federal entity -- for a declaratory
judgment that a District of Columbia statute is unconstitutional.

-13“[A] complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations[.]”
555.

Twombly, 550 U.S. at

However, “[w]here a complaint pleads facts that are ‘merely

consistent with’ a defendant’s liability, it ‘stops short of the
line between possibility and plausibility of entitlement to
relief.’”

Iqbal, 556 U.S. at 678 (internal quotation marks

omitted) (quoting Twombly, 550 U.S. at 557).
When considering a Rule 12(b)(6) motion, a court construes
the complaint in the light most favorable to the plaintiff and
“assume[s] the truth of all well-pleaded allegations.”
District of Columbia, 353 F.3d 36, 39 (D.C. Cir. 2004).

Warren v.
The

court may consider “only the facts alleged in the complaint, any
documents either attached to or incorporated in the complaint and
matters of which [it] may take judicial notice.”

EEOC v. St.

Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir.
1997).
A.

Causal connection between protected activity and
adverse employment action

The District argues that Clayton failed to allege sufficient
facts in Counts One, Two, and Three to demonstrate that there was
a causal connection between Clayton’s protected activities and
the adverse employment action.

District’s Mot. at 1.

Clayton must allege that there is a causal link between her
supervisors’ threats of termination and her ultimate termination
on the one hand and her protected disclosures on the other hand

-14to state a claim of retaliation under the DC-WPA7 and DC-FCA8 or
a claim of wrongful termination under D.C. common law9.

Despite

the plaintiff’s burden, it is well-established that “[a]
plaintiff alleging retaliation faces a low hurdle at the motion
to dismiss stage.”

Teliska v. Napolitano, 826 F. Supp. 2d 94,

100 (D.D.C. 2011) (collecting cases).

With respect to causation,

“[a]t this early stage of the proceedings, plaintiff can meet her
prima facie burden of causation simply by alleging that the
adverse actions [that were supported by facts in her complaint]
were caused by her protected activity.”

Vance v. Chao, 496 F.

Supp. 2d 182, 185, 187 (D.D.C. 2007).

7

See Wilburn v. District of Columbia, 957 A.2d 921, 922 n.3
(D.C. 2008) (“A public employee makes a prima facie case [of
retaliation in violation of the DC-WPA] by showing that the
protected disclosure was a contributing factor in the prohibited
personnel action[.]” (citing Johnson v. District of Columbia, 935
A.2d 1113, 1119 (D.C. 2007))).
8

See Payne v. District of Columbia, 773 F. Supp. 2d 89, 97
(D.D.C. 2011) (“To establish a D.C. False Claims Act retaliation
claim, a plaintiff must show (1) that he or she engaged in
protected activity, (2) that the defendant had knowledge that the
plaintiff engaged in such protected activity, (3) that the
defendant terminated the plaintiff’s employment, and (4) that
there was a causal connection between the protected activity and
the defendant’s termination of the plaintiff’s employment.”).
9

To state a claim of wrongful termination under D.C. common
law, a plaintiff must “clearly articulate the applicable public
policy, [and] show a causal connection between protected activity
in which that plaintiff engaged and his or her termination.”
Stevens v. Sodexo, Inc., 846 F. Supp. 2d 119, 126 (D.D.C. 2012).
“That is, the plaintiff ‘must have been terminated for acting in
a protected manner.’” Id. (quoting Robinson v. Securitas Servs.,
Inc., 819 F. Supp. 2d 18, 21 (D.D.C. 2011)).

-15A plaintiff may show causation through direct evidence or
circumstantial evidence, such as by showing that the employer had
knowledge of the employee’s protected conduct and a close
temporal proximity between the employer’s knowledge and the
adverse actions.

Rattigan v. Gonzales, 503 F. Supp. 2d 56, 77

(D.D.C. 2007); see also Johnson, 935 A.2d at 1120-21.

Clayton

argues that her amended complaint alleges sufficient facts to
create an inference that her reclassification and termination
were in retaliation for her protected conduct.10

Clayton’s

amended complaint supports a finding that the District knew of
Clayton’s protected conduct and that there was a close temporal
relationship between that knowledge and the adverse employment
action.

The amended complaint alleges that Albert and General

Schwartz were personal friends.

Am. Compl. ¶ 77.

It also

suggests that Albert refused to meet with Clayton until after her

10

In her opposition, Clayton also argues that her notice of
reassignment is direct evidence that her reclassification and
termination were retaliatory because the notice stated that the
reclassification “‘[was] taken in accordance with’ [General
Schwartz’s] inquiries.” Pl.’s Opp’n at 13 (first alteration in
original). However, Clayton’s amended complaint does not contain
this factual allegation and neither party has submitted a copy of
the reassignment notice for consideration. Thus, this argument
will not be considered because it is not relevant to determine
whether Clayton has pled sufficient facts in her amended
complaint to state a cause of action for her claims. See
Arbitraje Casa de Cambio, S.A. de C.V. v. U.S. Postal Serv., 297
F. Supp. 2d 165, 170 (D.D.C. 2003) (“‘It is axiomatic that a
complaint may not be amended by the briefs in opposition to a
motion to dismiss.’” (quoting Coleman v. Pension Benefit Guar.
Corp., 94 F. Supp. 2d 18, 24 n.8 (D.D.C. 2000))).

-16termination was effective.

Id.

Considered in the light most

favorable to Clayton, these allegations and the reasonable
inferences drawn from them support a finding that Albert knew of
Clayton’s protected conduct.
The temporal proximity between Clayton’s protected
activities and her reclassification and termination also support
Clayton’s argument that the adverse employment actions were
retaliatory.

Clayton alleges that she engaged in protected

conduct through August 2010.

See id. ¶ 42.

Clayton’s position

was reclassified the next month and she was notified of her
termination in October 2010.

Id. ¶¶ 74, 76.

The passage of

merely two months between Clayton’s protected conduct and the
reclassification and termination can be sufficient to establish a
causal connection.

See Booth v. District of Columbia, 701 F.

Supp. 2d 73, 79 (D.D.C. 2010).

Clayton’s retaliation and

wrongful termination claims will not be dismissed for failure to
state a claim.
B.

DC-WPA claim

Clayton claims that reclassifying the Director position as
an MSS position violated the DC-WPA.

The District argues this

claim should be dismissed because it is time-barred.
Mot. at 1.

District’s

To bring a civil action against the District under

DC-WPA, a complainant must file the action “within 3 years after
a violation occurs or within one year after the employee first

-17becomes aware of the violation, whichever occurs first.”
Code § 1-615.54(a)(2).
October 26, 2011.

D.C.

Clayton filed her original complaint on

Courts presume that an employee becomes aware

of the violation at the time that the adverse employment act
occurs.

See Sharma v. District of Columbia, 791 F. Supp. 2d 207,

214 (D.D.C. 2011); Stephenson v. Am. Dental Ass’n, 789 A.2d 1248,
1250 (D.C. 2002).

However, an employee may argue that she did

not learn that the action was retaliatory until some later date,
and thus, the one-year statutory period began later.

See Payne

v. District of Columbia, 808 F. Supp. 2d 164, 171 (D.D.C. 2011)
(explaining that the one-year statute of limitations for the
employee’s DC-WPA claim that his termination was retaliatory
began when the employee received notice of his termination
because the employee “never argued that he did not discover that
his termination was retaliatory until some later date”).
The parties implicitly agree that a one-year statute of
limitations applies to Clayton’s reclassification claim but they
disagree to as to when the period began.

The District argues

that the one-year period began on September 27, 2010 when Clayton
“received a letter ‘removing her from her protected career
service position and reassigning her to an at-will MSS
position[.]’”

District’s Mot., Mem. of P. & A. in Supp. of Def.

D.C.’s Mot. to Dismiss the Am. Compl. (“District’s Mem.”) at 9
(quoting Am. Compl. ¶ 74).

Clayton alleges that although she

-18received notice of reclassification on September 27, 2010, she
did not discover that the reclassification was retaliatory until
her termination became effective on November 10, 2010.

See Pl.’s

Consolidated Opp’n to Defs.’ D.C. & D.C. Nat’l Guard’s Mots. to
Dismiss Am. Compl., Mem. of P. & A. in Supp. of Pl.’s
Consolidated Opp’n to Defs.’ D.C. & D.C. Nat’l Guard’s Mots. to
Dismiss Am. Compl. (“Pl.’s Opp’n”) at 10-11 (arguing that it was
not until November 2010 when “the operative facts of the
retaliation were revealed and made known to Plaintiff and the
discriminatory animus became known”).

Assuming that Clayton’s

allegation that she did not discover that the reclassification
was retaliatory until November 10, 2010 is true, her claim that
the reclassification of her Career Service position to an MSS
position was retaliatory was not filed untimely.
C.

Wrongful termination claim

The District also argues that Clayton’s wrongful termination
claim should be dismissed for failure to state a claim.
District’s Mem. at 15–17.

Clayton counters that her wrongful

termination claim falls under the “Adams exception” and is
distinct from her DC-WPA claim because Clayton also claims that
she was terminated for reporting Jones’s sexual harassment
complaint and “for taking action to stop [Clipper’s] illegal
activity[,]” not just for reporting it.

Pl.’s Opp’n at 24.

-19Generally, an employer may terminate an “at-will” employee
at any time for any reason.

However, in Adams v. George W.

Cochran & Co., Inc., 597 A.2d 28, 34 (D.C. 1991), the District of
Columbia Court of Appeals recognized a narrow public policy
exception to the at-will doctrine when “the sole reason for the
discharge is the employee’s refusal to violate the law, as
expressed in a statute or municipal regulation.”

Id.

In Carl v.

Children’s Hospital, 702 A.2d 159 (D.C. 1997), the court expanded
the public policy exception to include any exception “firmly
anchored either in the Constitution or in a statute or regulation
which clearly reflects the particular ‘public policy’ being
relied upon.”

Id. at 162 (Terry, J., concurring); see also

Stevens v. Sodexo, Inc., 846 F. Supp. 2d 119, 126 (D.D.C. 2012).
To state a claim for wrongful termination, the at-will
employee must “clearly articulate the applicable public
policy[.]”

Stevens, 846 F. Supp. 2d at 126.

Even where there is

a showing of a clearly identifiable policy, the D.C. Court of
Appeals has refused to find new exceptions to the doctrine of
at-will employment where the legislature has already “‘creat[ed]
a specific, statutory cause of action to enforce’ the public
policy at issue.”

See LeFande v. District of Columbia, 864 F.

Supp. 2d 44, 50 (D.D.C. 2012) (quoting Carter v. District of
Columbia, 980 A.2d 1217, 1225-26 (D.C. 2009)).

-20Here, Clayton’s wrongful termination claim fails for two
reasons.

First, to the extent that Clayton claims that she was

wrongfully terminated because she reported Jones’s sexual
harassment complaint and attempted to stop Clipper’s allegedly
illegal activity, Clayton does not clearly articulate the
applicable public policy found in the Constitution, a statute, or
a regulation.

Her amended complaint alleges that as the Director

of the D.C. Government Operations Division, Clayton was “under an
obligation and duty to investigate and discipline potential
wrongdoing at the DCNG[.]”

Am. Compl. ¶ 11; see also id. ¶ 18.

However, Clayton does not identify an actual statute or municipal
regulation that articulates the public policy she believes was
involved here, and a general, vague duty does not suffice to
state a claim of wrongful termination.

See Robinson, 819 F.

Supp. 2d at 21-22.
Second, to the extent that Clayton claims that she was
wrongfully terminated because she reported fraud, waste, and
abuse, her wrongful termination claim fails because this conduct
also violates the DC-WPA and the DC-WPA provides a remedy for the
illegal conduct.11

11

The public policy exception to the at-will

The DC-WPA “prohibits a supervisor from taking a
‘prohibited personnel action,’ including terminating an employee,
in retaliation for that employee’s having made a ‘protected
disclosure.’” Williams v. District of Columbia, 9 A.3d 484, 488
(D.C. 2010) (quoting D.C. Code §§ 1-615.52, 53). A protected
disclosure is
any disclosure of information . . . , including a

-21doctrine “must arise from a statute or regulation that does not
provide its own remedy.”

Stevens, 846 F. Supp. 2d at 126 (citing

Carson v. Sim, 778 F. Supp. 2d 85, 97 (D.D.C. 2011)).

Thus,

because Clayton’s “conduct in reporting violations fell squarely
under the aegis of the [DC-WPA,]” recognizing a public policy
exception here is not warranted.

See Carter, 980 A.2d at 1225-26

(declining to find a public policy exception where the plaintiff
alleged that she was terminated for making protected
disclosures).
D.

Due process claims

Clayton claims that converting the Director position to an
MSS position and terminating her violated the Due Process Clause
of the Fifth Amendment.

Clayton also brings a facial challenge

to the constitutionality of D.C. Code § 1-609.58(a).

The

disclosure made in the ordinary course of an employee’s
duties by an employee to a supervisor or a public body
that the employee reasonably believes evidences:
(A) Gross mismanagement;
(B) Gross misuse or waste of public resources or funds;
(C) Abuse of authority in connection with the
administration of a public program or the execution of
a public contract;
(D) A violation of a federal, state, or local law,
rule, or regulation, or of a term of a contract between
the District government and a District government
contractor which is not of a merely technical or
minimal nature; or
(E) A substantial and specific danger to the public
health and safety.
D.C. Code § 1-615.52. “An employee aggrieved by a violation of
the [DC-WPA] may bring a civil action against the District . . .
seeking relief and damages[.]” D.C. Code § 1-615.54(a)(1).

-22District argues that Clayton’s facial challenge is contrary to
settled law and does not state a claim for procedural due
process.12

District’s Mot. at 1.

To state a procedural due process claim, a plaintiff must
show that she was deprived of life, liberty, or property without
due process of law.

See Propert v. District of Columbia, 948

F.2d 1327, 1331 (D.C. Cir. 1991).

“Property interests are not

created by the Constitution, ‘they are created and their
dimensions are defined by existing rules or understandings that
stem from an independent source such as state law[.]’”

Cleveland

Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985) (quoting Bd.
of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972)).
1.

Reclassifying Director position

The District argues that reclassifying the Director position
from a Career Service position to an MSS position did not violate
Clayton’s due process rights as a matter of law because the
position was reclassified to comply with D.C. Code § 1-609.58(a),
a legislative action converting Career Service managers to atwill employees that the legislature had the right to take.
District’s Mem. at 19-21.

12

The District does not challenge the adequacy of Clayton’s
as-applied constitutional challenge. Accordingly, that claim
will not be dismissed.

-23Clayton was hired into a Career Service position that
carried with it a property right.13

“[A] D.C. Career Service

employee ha[s] a protected property interest in his job” because
he can be removed only for cause.

Thompson v. District of

Columbia, 530 F.3d 914, 918 (D.C. Cir. 2008); see also Hoey v.
District of Columbia, 540 F. Supp. 2d 218, 225 (D.D.C. 2008) (“By
ensuring that Career Service employees may only be terminated (or
otherwise disciplined) for cause and after adequate notice, the
[Comprehensive Merit Personnel Act] bestows upon Career Service
employees a legitimate claim of entitlement to their continued
employment that gives rise to a property interest protected by
the Due Process Clause.” (internal quotation marks omitted)).
Accordingly, a Career Service employee cannot “be ‘removed from
the Service’ without receiving due process.”

Thompson, 530 F.3d

at 918 (citing D.C. Dep’t of Corr. v. Teamsters Union Local No.
246, 554 A.2d 319, 326 (D.C. 1989)).

13

While the District does not dispute that a Career Service
employee has a property right in her job, the District argues
that Clayton does not have a property interest in her right to
seek review with the OEA of any termination of her employment.
District’s Mem. at 17 n.13 (citing Brandon v. D.C. Bd. of Parole,
823 F.2d 644, 649 (D.C. Cir. 1987) (explaining that the process
due is distinct from the substantive interest)). Although
Clayton alleges in her amended complaint that she had a property
interest in her right to appeal her termination to the OEA,
Clayton does not respond in her opposition to the District’s
argument. Thus, the District’s argument is undisputed and will
be deemed conceded. See Iweala v. Operational Techs. Servs.,
Inc., 634 F. Supp. 2d 73, 80–81 (D.D.C. 2009).

-24“[The court] [h]aving determined that [Clayton] possessed a
protected property interest in [her Career Service position], the
next question is what process was due.”
1331.

Propert, 948 F.2d at

Generally, a hearing is required before a party can be

deprived of a property right.

Where a party is deprived of a

property right following enactment of a statute, though, “the
legislative determination provides all the process that is
due[.]”

Logan v. Zimmerman Brush Co., 455 U.S. 422, 433 (1982);

see also Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239
U.S. 441, 445 (1915).

The District reclassified the Director

position as an MSS position to comply with D.C. Code § 1-609.58.
Clayton does not argue that the legislative process to enact the
statute was constitutionally deficient, but she notes that D.C.
Code § 1-609.58 was enacted long before her appointment and was
not what triggered the reclassification.

Given that, it may be

that her initial designation as a Career Service employee rather
than an MSS employee was faulty.

Nevertheless, the District

argues that Clayton received all the process due under the
statute when a Career Service management employee is converted to
MSS status.

Clayton neither disputes the legislative prerogative

to abolish protected government jobs nor sets forth what process
was due her in addition to the alternatives she was offered by
law to accept the reclassification or pursue other Career Service
opportunities, unpleasant as the alternatives may have been.

-25Clayton’s claim that reclassification of her position was
unconstitutional will be dismissed.14
Clayton also claims that D.C. Code § 1-609.58(a) is
unconstitutional on its face.

The District argues that this

claim should be dismissed because Clayton did not establish that
there is no set of circumstances under which the statute could be
constitutional.

District’s Mem. at 21 n.14.

As is discussed

above, when a general statute works to deprive a person of a
property interest, the democratic process and not an
individualized deprivation hearing sufficiently protects their
rights.

See Bi-Metallic, 239 U.S. at 445-46.

Moreover, Clayton

failed to meet her heavy burden to show that the statute is
unconstitutional.

See Kraft Gen. Foods, Inc. v. Iowa Dep’t of

Revenue & Fin., 505 U.S. 71, 82 (1992).

Clayton fails to allege

facts sufficient to “establish that no set of circumstances
exists under which [D.C. Code § 1-609.58] would be valid.”
United States v. Salerno, 481 U.S. 739, 745 (1987).

14

See

Thus,

Clayton’s argument that the District applied D.C. Code
§ 1-609.58 as pretext to unlawfully reclassify her position,
Pl.’s Opp’n at 34, does not compel a different conclusion.
Clayton does not contest that the Director of the D.C. Government
Operations Division is a “management employee.” Section 1-609.58
does not allow the District any discretion in deciding whether to
a reclassify a Career Service position held by a “management
employee” as an MSS position. Thus, “the state of mind of local
officials who enforce or comply with state or federal regulations
is immaterial to whether the local government is violating the
Constitution if the local officials could not act otherwise
without violating state or federal law.” Bethesda Lutheran Homes
& Servs., Inc. v. Leean, 154 F.3d 716, 718 (7th Cir. 1998).

-26Clayton’s facial challenge will be dismissed for failure to state
a claim.
2.

Termination

The District argues that Clayton’s termination did not
violate the Due Process Clause because Clayton did not have a
protected property interest in her job at the time she was
terminated.

District’s Mem. at 18-19.

Unlike a Career Service

position, “an at-will [MSS] employee has no liberty or property
interest in continued employment, and it is clear that D.C. law
creates no such interest.”
1139 (D.C. Cir. 1998).

O’Donnell v. Barry, 148 F.3d 1126,

Because Clayton was an at-will, MSS

employee at the time she was terminated, she did not have a
property interest in her position and she was not entitled to an
OEA appeal before she was terminated.

See Leonard v. District of

Columbia, 794 A.2d 618, 623-27 (D.C. 2002).
CONCLUSION AND ORDER
Because Clayton did not establish that the DCNG waived
sovereign immunity, the DCNG’s motion to dismiss will be granted.
Clayton alleged a causal connection between her protected
disclosures and the adverse employment actions and demonstrated
that her DC-WPA claim is not time-barred.
and DC-FCA claims will not be dismissed.

Thus, Clayton’s DC-WPA
Because Clayton failed

to state a claim of wrongful termination, her common law claim
will be dismissed.

Clayton has not pled facts reflecting that

-27she was denied due process when the Director position was
reclassified as an MSS position, and Clayton did not have a
property interest in her job at the time she was terminated.

In

addition, Clayton failed to state a claim making a facial
challenge to D.C. Code § 1-609.58(a).

Thus, her due process

claim and claim for a declaratory judgment that D.C. Code
§ 1.609-58(a) is unconstitutional on its face will be dismissed.
Accordingly, it is hereby
ORDERED that the DCNG’s motion [27] to dismiss be, and
hereby is, GRANTED.

It is further

ORDERED that the District’s motion [26] to dismiss be, and
hereby is GRANTED IN PART and DENIED IN PART.

The District’s

motion regarding Counts One and Two of Clayton’s amended
complaint is denied.

Counts Three and Four and Clayton’s facial

challenge to D.C. Code § 1-609.58(a) in Count Five of Clayton’s
amended complaint are dismissed.
SIGNED this 21st day of March, 2013.
/s/
RICHARD W. ROBERTS
United States District Judge