Opinion
Civil No. 03-466 (SBC).
March 17, 2005
MEMORANDUM OPINION AND ORDER
Jesse Clay sues the District of Columbia and Angel Cartagena, Chairman of the District of Columbia's Public Services Commission ("PSC") (collectively "defendants"), for terminating his employment with the PSC on February 14, 2002. Specifically, Clay alleges his termination constituted a wrongful discharge, and he asserts claims of promissory estoppel, breach of good faith and fair dealing, and negligent representation arising from PSC's alleged failure to pay him severance upon termination. Clay further contends a conversion that bestowed him with at-will employee status violated his constitutional right to due process under the Fifth Amendment and 42 U.S.C. § 1983. Defendants move for summary judgment pursuant to Fed.R.Civ.P. 56.
On March 11, 2005, this case was reassigned by the Chief Justice of the United States to the Honorable Suzanne B. Conlon, District Judge for the Northern District of Illinois. See Dkt. No. 14.
BACKGROUND
The material facts are undisputed. Prior to September 2000, Clay was a career service employee entitled to statutorily guaranteed job security protections under the Comprehensive Merit Personnel Act ("CMPA"), D.C. Code § 1-606.01, et seq. On August 4, 2000, Clay was informed by letter that his career service position was being converted to a management supervisory service ("MSS") position under the CMPA. See Mot. Ex. B. The August 4th letter indicated Clay would be appointed to the MSS position unless he declined appointment. Id. If Clay accepted MSS appointment he would receive a salary increase, but he would lose career service protection rights and his employment status would be at-will. Id. If Clay declined the MSS appointment, he would receive priority for appointment to an available career service position for which he was qualified or, if no position were available, he would receive a 30-day separation notice. Id. On September 1, 2000, Clay accepted the MSS appointment in writing, acknowledging:
I voluntarily accept appointment to the Management Supervisory Service. I understand that I will no longer have Career Service job protection rights and that, as a Management Supervisory Service employee, I will be in an at-will appointment, and I may be terminated from service with the District government upon being given 15-day notice prior to termination.Id.
Approximately two and a half years later, on February 8, 2002, Clay docketed a District of Columbia Office of People's Counsel ("People's Counsel") filing that criticized Cartagena. Cartagena, Leigh Slaughter, and General Counsel Tim Robinson opposed filing of the People's Counsel letter, Robinson instructed Clay to remove the letter from the docket. See e.g., Resp. Ex. 11. Clay indicated municipal regulations required him to docket the letter, but removed the letter from the formal docket when instructed to do so. Clay was not threatened with termination or disciplinary action if he refused to remove the letter from the docket. Robinson had no authority to threaten or impose negative consequences if Clay did not remove the letter. People's Counsel subsequently filed a lawsuit to have the letter re-docketed.
On February 14, 2002, Clay's employment was terminated. Clay was advised:
The decision to terminate your appointment is based on the Commission's reevaluation of the agency's needs and goals, and its decision that the position of Commission Secretary should be held by a candidate who possesses a Juris Doctorate degree, and is a qualified member of the Bar of the District of Columbia Court of Appeals.
Resp. Ex. 3. When Clay was terminated, the District of Columbia Office of Personnel had not changed his job description. Cartagena believed he had authority to change the position description, and did not consult with other commissioners regarding his decision to terminate Clay prior to actual termination. Resp. Ex. 4 at 60-61, 63. Cartagena had no particular interest in terminating Clay, but realized that by changing the secretary position description Clay, a non-attorney, would lose his job. Id. at 36, 38.
On March 1, 2002, the District of Columbia registered a personnel action terminating Clay's employment and indicating Clay was "entitled to $51,916.80 severance pay to be paid at a rate of $1,996.80 per week for 26 weeks beginning on 03-03-02." Mot. Ex. D. Shirley E. Jones, a D.C. Office of Pay and Retirement pay officer, attests that Clay received the entire severance amount and certifies the accuracy of Clay's 2002 W-2 wage statement reflecting his receipt of the severance package. Mot. Ex. E.
DISCUSSION
I. Legal StandardSummary judgment is appropriate when the moving papers and affidavits show there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once a moving party meets its burden, the non-moving party must go beyond the pleadings and set forth specific facts showing there is a genuine issue for trial. Fed.R.Civ.P. 56 (c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The court considers the record as a whole and draws all reasonable inferences in the light most favorable to the opposing party. Fed.R.Civ.P. 56(c); Celotex, 477 U.S. at 325. A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
II. Summary Judgment Motion
A. Wrongful Discharge
Defendants contend summary judgment on Clay's wrongful discharge claim is warranted. They argue Clay was terminable at-will, and he fails to satisfy an exception to the general rule that an at-will employee may be discharged at any time, for any reason. Specifically, defendants argue the only exception to the general rule regarding termination of at-will employment is "a discharged at-will employee may sue his or her former employer for wrongful discharge when the sole reason for the discharge is the employee's refusal to violate the law, as expressed in a statute or municipal regulation." Mot. at 7, quoting Adams v. George W. Cochran Co., 597 A.2d 28, 30 (D.C. 1991). Defendants assert Clay fails to meet the Adams exception because: (1) he admittedly was not threatened with termination or discipline if he refused to break the law; (2) he admittedly did not refuse to break the law, but instead complied with the PSC's request; and (3) he cannot prove the sole reason for his termination was refusal to break the law, as he asserts more than one reason for termination and one of the reasons does not implicate a statute or regulation.
Clay claims he was terminated for not hiring an applicant recommended by Cartagena. Compl. at ¶ 29. On summary judgment, he does not argue this conduct gives rise to a public policy exception to the at-will doctrine. Indeed, Clay's argument is not raised at all in his briefs or statement of facts and is presumably abandoned. See e.g., Capitol Hill Group v. Shaw Pittman LLP, 313 B.R. 344, 357 (D.D.C. 2004).
Clay contends issues of fact exist regarding the public policy exception to the at-will doctrine. He alleges PSC rules, specifically D.C. Mun. Regs. tit. 15, §§ 100.2-100.7, mandate that every matter requiring the commission's attention be docketed for public inspection. Clay contends Section 100.7 of the PSC rules required him to file the People's Counsel response letter. Section 100.7 states:
All pleadings and other filings shall comply with the requirement of Chapter 1 and 2 of this title and shall be considered filed when received by the Commission during the business hours of the Commission as set forth in this section.
He argues: (1) he was terminated for protesting removal of the letter from the docket; (2) the subsequent People's Counsel lawsuit to have the letter re-docketed highlights public policy implications of the letter's removal; and (3) the timing of his termination, six days after the letter was docketed and prior to an official change in his job description by the D.C. Office of Personnel, indicates Cartagena's proposed reason for termination was pretextual. Finally, Clay contends the Adams wrongful discharge exception has been expanded and his internal objection to removing the People's Counsel filing, when public policy required that it be filed, is protected by the public policy exception expressed in Liberatore v. Mehlville Corp., 168 F.3d 1326 (D.C. Cir. 1999).
A brief synopsis of the Adams case and its progeny is warranted. Adams brought a wrongful discharge action against his former employer, alleging he was terminated for refusing to drive a truck that lacked a required inspection sticker. See 597 A.2d 28, 30 (D.C. 1991). The District of Columbia Court of Appeals expressed the established rule that employment is presumed to be at-will, unless an employment contract expressly provides otherwise, and that an employer may discharge an at-will employee at any time and for any reason. Id. However, the court recognized a new public policy exception to the at-will doctrine: it is unlawful for an employer to compel an employee to choose between breaking the law and keeping his job. Id. at 34. The court recognized a "very narrow exception" when the "sole reason for the discharge is the employee's refusal to violate the law." Id. "The burden of proving by a preponderance of the evidence that this was the sole reason shall be on the fired employee." Id.
In Carl v. Children's Hosp., 702 A.2d 159 (D.C. 1997) ( en banc), the court determined that other exceptions, besides the narrow Adams exception, may be available to discharged at-will employees. Carl, a nurse employed by the defendant hospital, claimed she was discharged for: (1) testifying before the District of Columbia Council on proposed tort reform in a manner contrary to her employer's interests; and (2) testifying as an expert witness for plaintiffs in medical malpractice cases. Id. Carl asserted her termination contravened specific District of Columbia public policies, such as the prohibition of any endeavor to influence, intimidate or impede a witness in any proceeding before the Council. Id. at 159 and n. 2. While she conceded she did not meet the Adams wrongful discharge exception, Carl argued the exception should be expanded to include the rights of employees to speak out publicly on issues affecting the public interest. Id. at 159, 161. A majority of the en banc court agreed, holding the narrow Adams exception does not preclude recognition of other public policy exceptions to the at-will doctrine, and that the exception was not limited to cases where an at-will employee was discharged for an outright refusal to violate the law.
Wrongful discharge cases post- Adams and post- Carl have assessed whether the plaintiff claims termination for refusing to violate the law, warranting application of the Adams exception, or whether the plaintiff claims termination for conduct that implicates other expressly recognized public policies. For example, in Wallace v. Skadden, Arps, Slate, Meagher Flom, et al., 715 A.2d 873, 883-86 (D.C. 1998), an attorney claimed she was terminated for refusing to violate rules of professional conduct. The court held Wallace could not prevail because most of the alleged misconduct was insufficient to trigger the application of a public policy exception, and the misconduct that may have been sufficient was but one of many reasons for her termination. Id. Similarly, in Mandsager v. Jaquith, 706 A.2d 39 (D.C. 1998), Mandsager claimed she was terminated for refusing to violate statutes requiring non-profit organizations to register with states in which contributions were solicited. The court held the discharge was not subject to a public policy exception because there was no evidence that Mandsager was expressly directed to violate the law, nor that she outright refused to violate the law.
In contrast, the plaintiff in Liberatore v. Melville Corp., 168 F.3d 1326 (D.C. Cir. 1999), did not claim he refused to violate a law. Rather, Liberatore brought a wrongful discharge claim asserting he was terminated for threatening to report unlawful storage of drugs to the Federal Drug Administration. The Court of Appeals noted Carl's expansion of the public policy exception in a situation where an employee did not refuse to violate the law. Id. at 1330. "The court had never explicitly held that there was only one narrow public policy exception . . . circumstances other than an employee's outright refusal to violate a law constitute grounds for a public policy exception if solidly based on a statute or regulation that reflects the particular policy to be applied." Id. at 1330-31 (citations omitted). Liberatore's action withstood summary judgment because the court found the alleged conduct implicated express public policies regarding the handling and storing of drugs, as reflected by statutes and regulations imposing fines and imprisonment upon violations.
Viewing the facts in Clay's favor and assuming he was terminated for the docketing issue, he has failed to establish a viable claim under the "very narrow" public policy exceptions to the at-will doctrine. Adams, 597 A.2d at 34; Wallace, 715 A.2d at 883-86. Clay asserts he was discharged for docketing the People's Counsel letter and refusing to remove the letter from the docket. See Compl. at ¶¶ 28-30. He contends the People's Counsel filing was required by law to be docketed, but admits that he reluctantly removed the letter once instructed to do so by his superiors. It is clear from Adams, Wallace, and Mandsager, that to succeed on a wrongful discharge claim based on a refusal to violate laws, Clay must demonstrate his refusal was the sole reason for his termination and that he was placed in a position of either committing an illegal act or being fired. Clay admittedly did not refuse to violate the law, nor was he forced to choose between performing an illegal act or being fired. Accordingly, he fails to establish a claim within the Adams public policy exception.
Clay's reliance on Carl as an alternative method of establishing a wrongful discharge claim must also fail. An action pursued under Carl must be "firmly anchored in either the Constitution or in a statute or regulation which clearly reflects the particular `public policy' being relied upon," and "there must be a close fit between the policy thus declared and the conduct at issue." Fingerhut v. Children's Nat'l Med. Ctr., 738 A.2d 799, 803 n. 7 (D.C. 1999), quoting Carl, 702 A.2d at 162, 164; see also Liberatore, 168 F.3d at 1331. Clay relies on a municipal code section pertaining to public utilities and cable television that requires PSC to maintain dockets and make the dockets available for public inspection. See D.C. Mun. Regs. tit. 15, §§ 100.1-100.11. He asserts municipal regulations required him to docket the letter and his discharge for objecting to its removal contravened the public policy of making documents available for public inspection. However, not every statute or regulation qualifies as public policy. For example, the laws and guidelines proffered as the bases for wrongful discharge claims in Mandsager and Wallace, two post- Carl cases, were insufficient to invoke public policy exceptions. There the courts acknowledged the Carl decision, yet they did not apply the exception to the plaintiffs' claims. The cited municipal regulations do not constitute a clear mandate of any public policy. Clay provides no persuasive argument or legal authority for the court to liken the municipal regulation with the public policy interests implicated in Carl or Liberatore. Exceptions to the at-will doctrine must be narrowly construed. Adams, 597 A.2d at 33-34; Carl, 702 A.2d at 161. There is no material issue of fact with respect to Clay's wrongful discharge claim. Summary judgment on Count I must be granted.
B. Due Process
Clay challenges the constitutionality of conversion of his job to a MSS position. He contends defendants' imposition of MSS status removed job protections and constituted an unconstitutional taking of property without due process of law under the Fifth Amendment and 42 U.S.C. § 1983. Compl. at Count V. Further, Clay claims the legislation enacting the conversion deprived him of his Fifth Amendment due process rights. Id. at Count VI.
Defendants seek summary judgment on Clay's constitutional claims because: (1) this court lacks jurisdiction to hear the challenges as any employment dispute arising out of his career service appointment requires exhaustion of administrative remedies under the CMPA and before the D.C. Office of Employee Appeals; (2) any process due to Clay was limited to the procedural mechanisms set forth in the CMPA, which Clay failed to pursue; and (3) Clay waived his due process challenges by entering into a valid contract accepting at-will employment in exchange for an increase in salary and severance pay.
In response, Clay argues this court has original jurisdiction to hear claims challenging statutes that involve constitutional violations. Further, Clay contends his due process rights were violated when the government converted his career service position, which permitted discharge only for cause after notice and an opportunity to respond to the charges, to an unprotected position. Finally, Clay asserts he did not voluntarily accept MSS appointment, but was forced to accept MSS appointment or risk losing his job. He contends the August 4, 2000 notice of the conversion was superfluous because his position was already statutorily converted. See D.C. Code § 1-609.58(a).
Clay also contends summary judgment on his federal claims is premature. He originally filed his state law claims with the D.C. Superior Court. He voluntarily dismissed them after conducting partial discovery. See Resp. at 5-7. After adding two federal claims, Clay filed his complaint in federal district court and defendants immediately moved for summary judgment. Id. Clay submits a Rule 56(f) affidavit and requests discovery on his federal claims. However, he fails to establish additional discovery will create an issue of fact, or will materially impact his opposition to summary judgment. See Fed.R.Civ.P. 56(f). Indeed, the summary judgment motion on the state issues relies almost exclusively on Clay's deposition testimony. The motion on the constitutional issues does not require extrinsic evidence.
The CMPA provides district employees with their exclusive remedies for claims arising out of employer conducted personnel ratings, employee grievances and adverse actions. See Thompson v. District of Columbia, 593 A.2d 621, 635 (D.C. 1991). However, exhaustion of administrative remedies under the CMPA is not a prerequisite to filing a complaint based on federal claims. See Bridges v. Kelly, 84 F.3d 470, 476-77 (D.C. Cir. 1996) (administrative appeals are inadequate to pursue federal claims); Savage v. Dist. of Columbia, No. 03 CV 184, 2004 U.S. Dist. LEXIS 4422, *11-12 (D.D.C. Mar. 19, 2004) (exhaustion of CMPA remedies not prerequisite to filing § 1983 complaint); Crockett v. D.C. Metro Police Dep't, 293 F. Supp. 2d 63, 67 (D.D.C. 2003) (CMPA administrative forum inadequate for pursuit of federal claims). Accordingly, exhaustion of remedies under the CMPA was not required before Clay could sue in federal court.
However, the existence of the CMPA administrative procedures are fatal to Clay's claims. In determining whether his due process rights were violated, the court considers whether he was deprived of a protected interest and, if so, whether he received the process that was due. See UDC Chairs Chapter, Am. Ass'n of Univ. Professors v. Bd. of Trustees, 56 F.3d 1469, 1471 (D.C. Cir. 1995). The process typically due consists of notice and an opportunity to be heard. Id. at 1472. Here, it is unnecessary to determine whether Clay had a constitutionally protected property interest because, even assuming he did have a protected interest, he failed to utilize grievance procedures. Id. Clay was given notice of the conversion on August 4, 2000. Read together, D.C. municipal regulations §§ 6-1631.1, 6-1630.2 and 1-609.58 indicate Clay could have grieved the conversion of his position to MSS status through the CMPA administrative procedures. He did not challenge the conversion on August 4th, or in the month prior to his acceptance of the appointment, or even after the appointment through CMPA grievance procedures. Indeed, Clay did not challenge the conversion until almost three years later, after his termination. The opportunity for a hearing was available to Clay — his decision not to pursue a hearing cannot form the basis of a deprivation of process claim. Id.
Moreover, Clay accepted the converted appointment in writing, acknowledged the change of his status, and knowingly accepted a salary increase and entitlement to over $50,000 in severance pay. His assertion that he had no choice but to accept the converted position and lose protected status is belied by the August 4th letter and his September 1st acceptance. Mot. Ex. B. Both clearly indicate Clay would be given preference for other available career service positions if he wanted to maintain protected career service status. Rather than gamble on a position being unavailable to him, Clay chose to stay where he was for a salary increase. Any property interest or process Clay possessed in his career services job was likely waived by his acceptance of significant consideration. There is no material issue of fact regarding Clay's constitutional claims. Summary judgment on Counts V and VI must be granted.
C. Equitable Claims
Clay's three equitable claims — promissory estoppel (Count II), breach of the duty of good faith and fair dealing (Count III), and negligent misrepresentation (Count IV) — assert Clay was promised severance pay if he converted to at-will employment, he relied on that promise when accepting at-will employment, and that he was not offered severance pay when terminated. See Compl. at ¶¶ 32-33, 37-38, 43-44. Defendants argue summary judgment on the equitable claims is appropriate because despite Clay's assertion that he was not offered severance pay upon termination, the evidence shows he was in fact offered a severance package, he received more than $50,000, and severance pay was included in his 2002 W-2 form. Clay does not dispute defendants' evidence, nor does he refute defendants' motion on his equitable claims. There is no material issue of fact on Clay's equitable claims. Summary judgment on Counts II-IV must be granted.