PAYNE v. DISTRICT OF COLUMBIA

of 2009, § 2(c), D.C. Code § 1-615.54(a)(1) (2010) ("An employee aggrieved by a violation of § 1-615.53 may bring a civil action against the District, and, in his or her personal capacity, any District employee, supervisors, or official having personal involvement in the prohibited personnel action. . . ."). However, the amendments to the DCWPA will save Payne's claims against individual supervisors only if the amendments are given retroactive effect. "As a general rule, statutes are to be construed as having only a prospective operation, unless there is a clear legislative showing that they are to be given a retroactive or retrospective effect." Wolf v. D.C. Rental Accommodations Comm'n, 414 A.2d 878, 880 n. 8 (D.C. 1980); see also Redman v. Potomac Place Assocs., LLC, 972 A.2d 316, 319 n. 4 (D.C. 2009) ("[R]etroactive applications of legislation are not to be presumed absent express legislative language or other clear implication that such retroactivity was intended."). Payne has not cited, and the Court has not found, any indication that the D.C. Council intended its amendments to the DCWPA to be retroactive. Therefore, the Court finds that Payne's action is governed by the language of the DCWPA prior to the 2009 amendments, which does not provide a cause of action against individual supervisors. Accordingly, the Court shall grant the individual Defendants' motion for judgment on the pleadings with respect to Count I.

2. Statute of Limitations

Payne filed this action on January 28, 2008. Defendants argue that any claims relating to actions that occurred before January 28, 2007 should be dismissed as untimely under the DCWPA's one-year statute of limitations. See D.C. Code § 1-615.54(a) (2001) ("A civil action shall be filed within one year after a violation occurs or within one year after the employee first becomes aware of the violation."). Payne does not dispute that some claims may be untimely but argues that the Court should apply the three-year statute of limitations that was included in the statute when the D.C. Council amended the DCWPA in 2009. Again, however, Payne has failed to show that the D.C. Council intended to make the three-year statute of limitations retroactive. Therefore, the Court must apply the one-year statute of limitations and bar Payne's DCWPA claim to the extent it relies on violations that occurred (or were first discovered) before January 28, 2007. Thus, Payne cannot challenge his initial termination in November 2006 pursuant to the DCWPA.

3. Wrongful Discharge Claim

The DCWPA provides that an aggrieved employee must elect his preferred remedy, which may be either a civil action or an administrative remedy: "No civil action shall be brought pursuant to § 1-615.54 if the aggrieved employee has had a final determination on the same cause of action from the Office of Employee Appeals or from an arbitrator pursuant to a negotiated grievance and arbitration procedure or an employment contract." D.C. Code § 1-615.56(b) (2001). Defendants argue that Payne's DCWPA claim is barred with respect to any claim that he was wrongfully discharged because he elected to file a grievance over his discharge, which was arbitrated by the Federal Mediation and Conciliation Service. Payne argues that the arbitration was limited to the question, "Did the Agency have cause to terminate the grievant Audrick Payne?," and there is no evidence that the arbitrator reached a decision as to his November 2006 summary termination, the June 27, 2007 suspension, or the July 12, 2007 proposed removal. Ultimately, the question for the Court is whether "the same cause of action" was before the arbitrator.

The DCWPA does not define the phrase "same cause of action." Defendants apparently argue that this phrase should be interpreted expansively to include all claims based on Payne's termination. Such an interpretation would be consistent with how causes of action are construed for purposes of res judicata. See Capitol Hill Group v. Pillsbury, Winthrop, Shaw, Pittman, LLC, 574 F. Supp. 2d, 149 (D.D.C. 2008) ("[T]here is an identity of the causes of action when the cases are based on the `same nucleus of facts,' because `it is the facts surrounding the transaction or occurrence which operate to constitute the cause of action, not the legal theory upon which a litigant relies.'" (quoting Page v. United States, 729 F.2d 818, 820 (D.C. Cir. 1984)), aff'd, 569 F.3d 485, 490 (D.C. Cir. 2009). "Although preclusive effect may be given to certain administrative proceedings, it does not attach to administrative determinations that are neither final nor binding." Hoffman v. District of Columbia, 681 F. Supp. 2d 86, 92 (D.D.C. 2010). Although the arbitrator's decision of October 5, 2009 appears to be a final, binding decision, Defendants have not requested relief on grounds of res judicata, and it is unclear whether that doctrine is appropriately applied in this instance.

This Court previously dismissed Payne's wrongful discharge claim on administrative exhaustion grounds. If Payne's DCWPA claim is part of the same cause of action as his wrongful discharge claim, then the Court's prior ruling would effectively compel Payne to exhaust his DCWPA claim prior to filing suit. That result, however, would nullify the election of remedies that Payne is allowed under the statute. Therefore, based on the present record and the fact that the parties did not address this issue thoroughly in their briefs, the Court shall not grant Defendants' motion for summary judgment on this basis.

4. Notice of Claim Statute

As noted above, the DCWPA requires an aggrieved employee to comply with the requirements of D.C. Code § 12-309, the District of Columbia's notice of claim statute. That statute provides as follows:

An action may not be maintained against the District of Columbia for unliquidated damages to person or property unless, within six months after the injury or damage was sustained, the claimant, his agent, or attorney has given notice in writing to the Mayor of the District of Columbia of the approximate time, place, cause, and circumstances of the injury or damage. A report in writing by the Metropolitan Police Department, in regular course of duty, is a sufficient notice under this section.

D.C. Code § 12-309. Although the terms of § 12-309 generally apply only with respect to claims for unliquidated damages, see Elzeneiny v. District of Columbia, 699 F. Supp. 2d 31, 34-35 (D.D.C. 2010), the D.C. Circuit has held that the DCWPA's incorporation of this statute requires a party to provide notice of any claims under the DCWPA, whether or not they are for unliquidated damages. See Winder v. Erste, 566 F.3d 209, 213-14 (D.C. Cir. 2009).

The record shows that Payne submitted a notice to the District of Columbia Office of Risk Management on September 10, 2007. See Defs.' Mem., Ex. 13 (9/10/2007 Letter). That notice explained that Payne believed he was given his initial notice of removal, his ten day suspension, and the second removal notice because of his whistleblowing activities. See id. at 2. 1This notice was not within six months of the initial termination notice in November 2006. However, it does constitute timely notice of Payne's claims that he was injured by the ten-day suspension issued on June 27, 2007, and his final termination, the notice for which was issued on July 12, 2007. At most, then, Payne is precluded from seeking compensatory and punitive damages for injuries suffered prior to March 10, 2007.

5. Failure to Establish a Prima Facie Case of Retaliation

Defendants argue that Payne's DCWPA claim must be dismissed because he has failed to establish a prima facie case of retaliation under the statute. The D.C. Court of Appeals has explained that claims brought under the DCWPA are subject to familiar burden-shifting framework established in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Crawford v. District of Columbia, 891 A.2d 216, 221 (D.C. 2006); Johnson v. District of Columbia, 935 A.2d 1113, 1118 (D.C. 2007). Under this framework, a DCWPA plaintiff must establish a prima facie case of retaliation by producing evidence sufficient for a jury to conclude that his protected activity was a contributing factor in the alleged prohibited personnel action. Johnson, 935 A.2d at 1118; D.C. Code § 1-615.54(b). Once a prima facie case is established, the burden shifts to the employing agency "to prove by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in [protected activities]." D.C. Code § 1-615.54(b). If the employer provides such evidence, the burden is on the plaintiff to prove that the employer's explanation was pretextual. Johnson, 935 A.2d at 1118-19. If a plaintiff fails to produce evidence to support a finding that the proffered explanation is pretextual, summary judgment is appropriate for the employer. See id. at 1121-22.

Assuming arguendo that Payne's testimony before the D.C. Council is protected activity under the DCWPA — an assertion that Defendants dispute only halfheartedly — Payne has failed to produce evidence that would enable a jury to conclude that there was a causal connection between his testimony and his termination. Payne argues that his testimony before the D.C. Council in February 2005 and March 2006 was a factor in DCRA's decisions to terminate and suspend him. However, he has produced no direct evidence that DCRA's decisions were motivated by Payne's testimony, and the circumstantial evidence based on the timing of DCRA's actions is inadequate as a matter of law. The D.C. Court of Appeals has held that when there is a four-month lapse of time between the protected disclosures and the adverse actions, there is no proof of a causal connection. Johnson v. District of Columbia, 935 A.2d at 1120 ("For several reasons, we reject the four-month lapse of time as proof of a causal connection between the protected disclosures and the adverse actions. . . . [E]ven a combination of `temporal proximity' (when established) and suspicion is not enough to avoid summary judgment."). In this case, there was an eight-month gap between Payne's testimony in March 2006 and DCRA's first adverse action in November 2006, and an even longer gap between his testimony and his final suspension and termination actions in the summer of 2007. Even if all of DCRA's subsequent actions can be traced back to November 2006, that is too far removed from Payne's testimony to permit a jury to draw the conclusion that his testimony was a motivating factor in the decision.

Payne addressed this issue in his opposition brief, but Defendants did not actually raise it in their summary judgment brief, although they address it briefly in their reply. Because the Court finds that Payne has failed to establish evidence sufficient to show a causal connection between his testimony and any adverse action taken against him, the Court need not address this issue.

The only evidence suggesting a temporal gap of less than eight months is Payne's testimony during the arbitration hearing that he was called to the Inspector General to give a statement regarding his third-party inspection work in April 2006, about 30 days after the "news expose" and his testimony before the Council in March 2006. See Pl.'s Opp'n, Ex. A (Arbitration Hr'g Tr.) at 1246. Payne argues that this evidence establishes that "DCRA caused an investigation to be initiated against [him] by OIG within 30 days of his 2006 testimony before the DC City Council." See Pl.'s Opp'n at 18. However, Payne concedes that the OIG investigation began around August 2005, long before his March 2006 testimony. See Pl.'s Stmt. ¶ 18 ("The OIG investigation that is the alleged basis for Mr. Payne's removal began in August 2005.") Therefore, the timing of Payne's interview with the OIG investigator does not suggest that the investigation was motivated by Payne's protected activity. Even if the timing of Payne's disclosures may have influenced the investigation by prompting critics of Payne to talk to the OIG investigator, that shows only that third parties may have tried to retaliate against Payne by informing the OIG about his misconduct; it does not show that Defendants took any retaliatory action as a result of Payne's disclosures.

Payne argues that the investigation began "shortly after" his first testimony before the D.C. Council criticizing DCRA and the third-party inspection process. See Pl.'s Stmt. ¶ 18. However, there was approximately a six-month gap between the beginning of the investigation and Payne's testimony in February 2005, too long a delay to permit a jury to infer a causal connection.

The OIG report indicates that the interview of Steven Weaver, a third-party inspector whom Payne criticized, was conducted on March 3, 2006, around the time of some of Payne's statements to the media and testimony to the D.C. Council. See Defs.' Mem., Ex. 4 (Final Investigation Report) at 4. The record shows, however, that Weaver's interview occurred several months after the Dawn Phillips incident was reported in the media. See Pl.'s Opp'n, Ex. 1 (Arbitration Hr'g Tr.) at 1241.

Payne also argues in his opposition brief that there was an ongoing effort to terminate him after his March 2006 testimony. See Pl.'s Opp'n at 18. In support of this assertion, he refers to pages 8-20 of Exhibit B attached to his opposition, which appears to include the following: (1) an undated article in the Washington Post entitled "Elevator in Fatal Fall Malfunctioned" that states Payne "has spot-checked more than 200 inspections performed by third-party companies this year and has found problems in every case"; (2) an article in the Washington City Paper from February 2006 describing Payne's reputation as a whistleblower; (3) a Washington Post article from March 2006 describing the hearing at which Payne testified; (4) a March 2, 2006 email from Defendant Argo to other DCRA officials with no direct reference to Payne, with the script from the Fox 5 television news report on elevator safety attached; (5) a March 2007 internet news article reporting Payne's December 2006 termination; (6) a set of emails dated June 21, 2007 from individuals who were contacted by DCRA about Payne's distribution of personal business cards while on official duty; and (7) a copy of the September 20, 2007 letter giving Payne advance notice of a proposed 3-day suspension for improperly waiving a customer's business license fine. None of these documents provide any support for Payne's claim that DCRA

Payne has provided no foundation for the documents contained in Exhibit B. Defendants argue that for this reason, Payne's Exhibit B should be stricken from the record. The Court declines to strike the exhibit, however, because the Court finds that Defendants are not prejudiced by the Court's consideration of these materials.

retaliated against him in the months following his D.C. Council testimony in March 2006.

Payne argues, citing Jones v. Bernanke, 557 F.3d 670 (D.C. Cir. 2009), that an inference of retaliation can usually be drawn when the plaintiff puts forth evidence discrediting the employer's legitimate explanation for an adverse action. See 557 F.3d at 680-81 ("[S]uch evidence `usually' is itself sufficient to allow a reasonable jury to infer retaliation."). However, that is not always the case. "[I]n some instances, . . . the fact that there are material questions as to whether the employer has given the real explanation will not suffice to support an inference of [retaliation]." Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1291 (D.C. Cir. 1998) (en banc). "Sometimes an employer may offer a meritocratic or otherwise high-sounding explanation for a decision intending to cover up an unsavory reason-but one that is not illegal under the antidiscrimination laws." Carpenter v. Fed. Nat'l Mortgage Ass'n, 165 F.3d 69, 72 (D.C. Cir. 1999). Here, Payne's evidence rebutting Defendants' proffered legitimate explanation shows, at most, that Defendants were eager to remove Payne because he had been a difficult employee throughout his career with DCRA. The evidence does not support an inference that the real reason for his suspension or termination was retaliation for engaging in protected activity.

Defendants contend that they took adverse actions against Payne because (1) the OIG investigation report concluded that Payne had violated D.C. Code § 1-618.02 by soliciting work for his personal business as a third-party inspector while on duty (November 9, 2006 removal); (2) he violated written work policies requiring inspectors to contact their supervisor for approval before sealing an elevator out of service (June 27, 2007 suspension); and (3) DCRA's own investigation in June 2007 found that Payne had solicited personal business while on official duty in 2005 (July 12, 2007 removal). Payne argues that these reasons are pretext for retaliation because DCRA's decisions to remove Payne were discredited by Hearing Officer Theresa Cusick and the arbitrator, David Weinstein. However, the rulings by Ms. Cusick and Mr. Weinstein do not give rise to an inference that DCRA's actions were motivated by Payne's testimony before the D.C. Council.

Although Ms. Cusick's report found that some of the evidence in the OIG report was not credible, she agreed with the OIG's finding that Payne had engaged in conduct which met the standard for summary action under D.C. personnel rules. Similarly, the arbitrator found that Payne had in fact engaged in misconduct by promoting his personal business. The fact that DCRA failed to consider mitigating factors or follow a progressive discipline approach does suggest that, in November 2006 and June-July 2007, the agency was eager to get rid of Payne. However, there is nothing in either Ms. Cusick's report or the arbitrator's ruling that suggests the agency would not have terminated Payne but for his protected speech. To the contrary, the arbitrator's ruling indicates that DCRA wanted to get rid of Payne long before he testified before the D.C. Council in February 2005 and March 2006 because the agency disagreed with how strictly he conducted elevator inspections. While that may be an "unsavory reason" for seeking to terminate Payne, it does not point the causal arrow in the direction of Payne's protected speech. At most, the arbitrator's ruling suggests that DCRA was constantly struggling to deal with Payne during his entire tenure with the agency. Payne has failed to identify any evidence in the record that tends to show that his protected disclosures changed the agency's views about him in any material way.

In evaluating the record, the Court relies on the facts identified by the parties in their statement of material facts filed pursuant to Local Civil Rule 7(h). See LCVR 7(h)(1) ("An opposition to . . . a motion [for summary judgment] shall be accompanied by a separate concise statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated, which shall include references to the partes of the record relied upon to support the statement." (emphasis added)). The Court does not accept factual assertions by counsel that are not supported with citations to the record, nor does it scour the record for evidence that will support a party's claims. See United States ex rel. El-Amin v. George Wash. Univ., 533 F. Supp. 2d 12, 19 (D.D.C. 2008) ("It is not the Court's responsibility to formulate the [party's] arguments for them or to scour the record for evidence that will support their assertions. . . .").

Accordingly, the Court finds that Payne has failed to produce a genuine issue of material fact as to retaliation under the DCWPA. As noted above, the Court also finds that there is no cause of action under the DCWPA against individual supervisors. In addition, the Court finds that claims for violations occurring before January 28, 2007 are time-barred, and claims for injuries occurring before March 10, 2007, are barred for lack of notice under D.C. Code § 12-309. For all of these reasons, the Court shall grant Defendants' motion for judgment on the pleadings and for summary judgment with respect to Count I.

B. Count II ( First Amendment)

In Count II of the Amended Complaint, Payne contends that Defendants violated his First Amendment rights by taking adverse actions against him in retaliation for his protected speech, specifically his testimony before the D.C. Council in February 2005 and March 2006 and providing information to the media in March 2006 about the lack of regulatory oversight at DCRA. A public employee seeking to make out a claim of retaliation in violation of his First Amendment rights must meet a four-factor test: (1) the public employee must have spoken as a citizen on a matter of public concern; (2) the employee's interest in speaking on matters of public concern must outweigh the government's interest in promoting the efficiency of public services; (3) the employee must show that his speech was a substantial or motivating factor in prompting the retaliatory act; and (4) the employee must refute the government's showing, if made, that it would have reached the same decision in the absence of the protected speech. Wilburn v. Robinson, 480 F.3d 1140, 1149 (D.C. Cir. 2007); Tao v. Freeh, 27 F.3d 635, 638-39 (D.C. Cir. 1994). Defendants contend that Payne has failed to establish any of these four factors. The Court shall evaluate each of these factors in light of the evidence in the record.

1. Payne's Speech as a Citizen on a Matter of Public Concern

The record shows that Payne testified before the D.C. Council in February 2005 and March 2006 and contacted the news media in March 2006 about problems with the elevator inspection process. See Pl.'s Opp'n, Ex. A (Arbitration Hr'g Tr.) at 1238-41. Defendants argue that Payne's speech is not protected by the First Amendment because it was made pursuant to his official duties as an elevator inspector and therefore it was not speech made by Payne in his capacity as a citizen. In Garcetti v. Ceballos, 547 U.S. 410 (2006), the Supreme Court explained that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." 547 U.S. at 421. The Garcetti case involved a deputy district attorney who was disciplined for recommending dismissal of a case on the basis of purported governmental misconduct; the Court held that this speech was not protected because making such recommendations was a part of his job duties. Id. at 421-22. Similarly, in Wilburn v. Robinson, 480 F.3d 1140 (D.C. Cir. 2007), the court held that a former interim director of the D.C. Office of Human Rights did not engage in protected speech when she complained about alleged discrimination by officials who refused to approve the salaries that she had requested for her employees. 480 F.3d at 1150-51. The court found that salary and hiring fell within her

employment responsibilities, as did rooting out discrimination in the District government. Id. at 1151. Therefore, her speech was part of her official duties and not made in her capacity as a citizen.

The case law is fairly clear that when a public employee makes comments to his supervisors on subjects directly related to his job, that speech is made pursuant to official duties and is not subject to First Amendment protection. See Thompson v. District of Columbia, 530 F.3d 914, 917 (D.C. Cir. 2008) ("When employees make recommendations to supervisors on subjects directly related to their jobs, they are speaking as employees even if the supervisors discourage this speech."). In this case, however, Payne went outside his chain of command and made statements to the media and to the D.C. Council about his perceived problems with DCRA's elevator inspection regime. Such statements may not be protected if it is part of the employee's job duties to make such statements. See Winder v. Erste, 566 F.3d at 215-16 (holding that employee's statements to D.C. Council regarding the D.C. Public Schools' failure to comply with court orders were unprotected because the employee was hired for the purpose of ensuring such compliance). The question is not whether Payne's speech was related to his job as an elevator inspector, for "[s]peech can be covered by the First Amendment even if it is related to one's job function." Id. at 216. Rather, the question is whether the employee's speech can be properly characterized as part of the employee's official duties. Cf. Tao v. Freeh, 27 F.3d at 637-39 (employee's complaint about discrimination was not made pursuant to official duties because his job as language translator did not include exposing racial discrimination in the workplace); Wilburn, 480 F.3d at 1151 n. 16.

The record in this case does not clearly establish whether Payne's duties as an elevator inspector might have required him to speak out about mismanagement or lapses in DCRA's oversight of the third-party inspection program. According to his Amended Complaint, Payne "was responsible for inspecting elevators in the District of Columbia and issuing citations to building owners who were not in compliance with the D.C. Code." Am. Compl. ¶ 6. If that was the sole extent of his responsibilities, then it cannot be said that his criticism of DCRA's alleged lax enforcement of regulations was made pursuant to his official duties. According to a document that appears to be a job description for an elevator inspector, Payne's major duties included performing inspections and preparing inspection reports for a variety of elevator systems, issuing civil infraction citations for certain construction code violations, investigating complaints and accidents, and testifying in court as an expert witness on technical matters. See Pl.'s Opp'n, Ex. D at 25 (Elevator Inspector, RW-5313-13). Payne was not in a management position, nor does it appear that he was specifically charged with identifying any regulatory violations beyond the elevators he was specifically charged with inspecting. In Winder v. Erste, the D.C. Circuit recognized that "testimony before a city council might otherwise be just the sort of citizen speech protected by the First Amendment," but held that "the uncommonly close relationship between [the employee's] duties and his advocacy before the council precludes protection." 566 F.3d at 215. However, there is no clear indication in the record that it was part

Payne specifically avers that his testimony before the D.C. Council was outside the scope of his employment. See Am. Compl. ¶¶ 12, 14. However, Payne's own characterization of his testimony is not controlling.

As with the documents contained in Exhibit B, Payne has provided no foundation for the documents contained in Exhibit D. The Court denies Defendants' request to strike the exhibit, however, because the Court finds that Defendants are not prejudiced by the Court's consideration of these materials. The Court's ruling as to Payne's job duties does not explicitly rely on this document describing the job duties of an elevator inspector.

of Payne's job to report lax enforcement at DCRA.

The Court notes that Payne's own statements are contradictory as to whether he gave his testimony to the D.C. Council at the urging of DCRA officials. During his deposition, Payne testified that DCRA management had selected him to testify at the February 2005 and March 2006 oversight hearings. See Defs.' Mem., Ex. 1 (Payne Dep.) at 71-72, 96-97. However, Payne testified at his arbitration hearing that he had decided to contact D.C. Councilmember Jim Graham and to make statements to the media. See Pl.'s Opp'n, Ex. A (Arbitration Hr'g Tr.) at 1239-40. Therefore, the Court cannot conclude that Payne's testimony before the D.C. Council and statements to the media about perceived problems at DCRA were a part of "the tasks he was paid to perform," Garcetti, 547 U.S. at 422. Based on the present record, then, the Court concludes that Payne's speech was made in his capacity as a citizen rather than as a government employee.

Defendants do not seriously dispute that Payne's speech was on a matter of public concern. Payne's speech was directed to the issue of DCRA's enforcement of elevator safety regulations, and the public has a significant interest in learning whether elevators are operating safely in the District of Columbia. Accordingly, the Court finds that Payne's speech is protected by the First Amendment.

2. The Government's Interest in Ensuring Efficient Government Services

The second factor in the analysis requires the Court to consider "whether the governmental interest in `promoting the efficiency of the public services it performs through its employees' without disruption'" outweighs the employee's interest as a citizen in commenting on matters of public concern and the interest of potential audiences in hearing what the employee has to say. O'Donnell v. Barry, 148 F.3d 1126, 1133 (D.C. Cir. 1998) (quoting Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)). In evaluating the government's interests, courts have generally considered "whether the statement impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker's duties or interferes with the regular operation of the enterprise." Rankin v. McPherson, 483 U.S. 378, 388 (1987). Defendants have not argued that Payne's speech had any adverse impact on working relationships at DCRA or otherwise impaired Payne's ability to do his job effectively. Rather, they argue that "the District of Columbia's interest in promoting accurate and efficient testimony at its oversight hearing" outweighs Payne's interest in speaking. That rationale is misguided, however, because there is no indication in the record that Payne testified untruthfully before the D.C. Council. To the contrary, there is evidence in the record that DCRA management wanted Payne to testify, and Defendants argue that Payne did not provide the D.C. Council with any new information. See Defs.' Reply at 5. Therefore, the Court finds that the government's interest in promoting efficient government services does not outweigh Payne's interest in speaking out about elevator safety issues.

3. Causation

In order to prevail on a First Amendment retaliation claim, a public employee must demonstrate that his protected speech "was a substantial or motivating factor in prompting the retaliatory or punitive act of which []he complains." O'Donnell v. Barry, 148 F.3d at 1133 (citing Mt. Healthy City Sch. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)). The causation requirement for a First Amendment claim is therefore much greater than the showing required to establish a prima facie case of retaliation under the DCWPA, which requires only a showing that the protected activity was a "contributing factor" in the retaliatory act. Johnson, 935 A.2d at 1118-20; id. at 1120 ("[T]he standard for establishing the causation factor is an even higher hurdle for a plaintiff [asserting a First Amendment claim.]"). Although causation is normally a question of fact to be decided by the jury, a plaintiff opposing summary judgment must show that there is "evidence (either of a direct or indirect nature) from which a reasonable jury could find the required causal link between the protected disclosures . . . and the allegedly retaliatory actions." Williams v. Johnson, 701 F. Supp. 2d 1, 17 (D.D.C. 2010).

As explained in the context of his DCWPA claim, Payne has failed to show that there is evidence in the record sufficient to support a finding that his suspension or termination in 2007 was conducted in retaliation for his protected speech in February 2005 and March 2006. The record shows that OIG initiated its investigation into Payne in August 2005, six months after his initial testimony before the Council and eight months before his subsequent testimony and statements to the media. Payne argues that there was retaliation because, the morning after one of the media reports aired in March 2006, Payne was confronted by one of his managers who accused him of being the source and DCRA management held a meeting to discuss the media report. See Pl.'s Opp'n, Ex. A (Arbitration Hr'g Tr.) at 1244-45; id., Ex. B at 13 (3/2/2006 Email from Linda Argo to DCRA officials regarding "Fox5 report on elevators"). At most, however, that demonstrates that DCRA was aware that Payne had made comments to the media, a revelation that could not have been surprising considering Payne's public testimony before the D.C. Council on the very same issues. It does nothing to show any connection between Payne's speech activities and his initial termination eight months later, let alone his subsequent

suspension and termination in 2007. In the related context of retaliation under Title VII or the Americans with Disabilities Act, courts have noted that a causal inference cannot be drawn when there is an eight-month gap between the protected activity and the adverse action. See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (applying Title VII and citing with approval cases in which three- and four-month periods were held insufficient to establish causation); Mayers v. Laborers' Health Safety Fund, 478 F.3d 364, 369 (D.C. Cir. 2007) (applying the ADA and holding than an eight- or nine-month gap is "far too long" to infer causation by temporal proximity).

In his deposition, Payne explained his view that "retaliation . . . ties into everything pertaining to my employment with the District of Columbia." Defs.' Mem., Ex. 1 (Payne Dep.) at 206. However, in order to prevail on his First Amendment claim, Payne must provide some evidence suggesting that there is a connection between his speech and the adverse actions. "Mere speculation fails to create a genuine issue of material fact to avoid summary judgment." Atanus v. Sebelius, 652 F. Supp. 2d 4, 13 (D.D.C. 2009) (citation, internal quotation marks, and alterations omitted), aff'd, 2010 WL 1255937 (D.C. Cir. Mar. 2, 2010). As the Court explained with respect to Payne's DCWPA claim, the record as a whole suggests that Payne was a difficult employee for DCRA to deal with throughout his entire tenure with the agency, which began in 2001. Therefore, it is conceivable that Payne's D.C. Council testimony and disclosures to the media were on the long list of gripes that DCRA management had with Payne. In order to prevail on his First Amendment claim, however, Payne must demonstrate not just that DCRA was aware of his protected speech but that it was a "substantial" or "motivating" factor in his termination. There is no evidence in the record to support such an inference, however. The record does not show that DCRA management took any adverse actions against Payne in the immediate aftermath of his protected speech, nor does it show that DCRA officials considered Payne's speech in any way when they suspended or terminated him. Accordingly, the Court finds that Payne has failed to provide evidence connecting his protected speech to the adverse actions taken against him. Therefore, the Court shall grant Defendants' motion for summary judgment with respect to Count II. The Court need not separately address the evidence relating to pretext, as this was discussed in the context of Payne's DCWPA claim.

Because the Court shall dismiss Payne's First Amendment claim on the merits, it shall not address Defendants' alternative arguments that Payne has failed to establish municipal liability for the District of Columbia and failed to overcome the individual Defendants' entitlement to qualified immunity.

C. Counts III and IV (Due Process)

In Count III of his Amended Complaint, Payne contends that Defendants violated his right to due process under the Fifth Amendment by terminating him without cause and without procedural protections. In Count IV, Payne contends that Defendants violated his due process rights by failing to hold a pretermination hearing at which he could clear his name. The court construes both of these claims as asserting a violation of Payne's procedural due process rights. A plaintiff asserting a violation of his Fifth Amendment right to procedural due process must establish (1) that he was deprived of a protected interest in life, liberty, or property and (2) that he did not receive the process that was due. See Zinermon v. Burch, 494 U.S. 113, 125 (1990); UDC Chairs Chapter, Am. Ass'n of Univ. Professors v. Bd. of Trustees of the Univ. of the Dist. of Columbia, 56 F.3d 1469, 1471 (D.C. Cir. 1995). The parties do not dispute that Payne had a

protected property interest in his employment as an elevator inspector. Therefore, the only question is whether the process he was afforded comports with constitutional requirements.

Defendants argue that Payne was afforded due process because he filed a grievance under the collective bargaining agreement, which provided him with a hearing before an arbitrator. In his opposition to Defendants' motion, Payne effectively concedes that he was afforded due process with respect to his termination in September 2007, arguing only that his summary removal in November 2006 was procedurally deficient. See Pl.'s Opp'n at 28. Because Payne failed to argue in his opposition brief that he was deprived of due process for his September 2007 termination, the Court may treat that issue as conceded. See Hopkins v. Women's Div., Gen. Bd. of Global Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003), aff'd, 98 F. App'x 8 (D.C. Cir. 2004) ("It is well understood in this Circuit that when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded.") However, the record clearly shows that Payne appealed his November 2006 removal and presented evidence to Hearing Officer Theresa Cusick. Moreover, Defendants agreed to rescind the November 2006 summary removal and provide Payne with back pay. Therefore, any claim with respect to the November 2006 summary removal is moot. Accordingly, the Court shall grant Defendants' motion for summary judgment with respect to Counts III and IV of the Amended Complaint.

D. Count V (Hostile Work Environment and Retaliation)

In Count V of his Amended Complaint, Payne asserts a claim for "Hostile Work Environment and Retaliation and Violation of Civil Rights Under 42 U.S.C. § 1983." The allegations in this count allege that Defendants violated his First Amendment rights by creating a hostile work environment and retaliating against him. To the extent that Payne is seeking redress for a violation of his First Amendment rights, his claim is encompassed within Count II of his Amended Complaint. Defendants construe Count V as attempting to assert a hostile work environment claim based on Payne's national origin and invoke cases involving Title VII of the Civil Rights Act of the Civil Rights Act of 1964. See Defs.' Mem. at 18-19. However, the Amended Complaint contains no allegations relating to Payne's national origin, and Payne does not make this argument in his opposition brief. In fact, Payne does not address his hostile work environment claim at all in his opposition brief. Therefore, the Court may treat that claim as conceded. Accordingly, the Court finds that Count V fails to assert any additional claims that have not been addressed elsewhere, and the Court shall grant Defendants' motion for judgment on the pleadings with respect to Count V.

E. Payne's Motion for Leave to File Surreply

The last issue to be addressed is Payne's [54] Motion for Leave to File Surreply, which is opposed by Defendants. In his motion, Payne seeks leave to file a surreply for two purposes. First, Payne argues that a surreply is needed because Defendants raised new issues in their reply brief that he was unable to address in his opposition. However, the only new issue he identifies is the argument that Payne's meeting with Councilmember Graham and interviews with the news media are not protected speech. See Defs.' Reply at 2-3. The Court finds that Payne did address that issue in his opposition brief, and therefore he is not prejudiced by Defendants' failure to specifically include this item in their opening brief. Second, Payne seeks leave to submit a DVD that was admitted into evidence at his arbitration hearing and which contains Payne's testimony before the D.C. Council and his interview with the news media. Defendants object to the

admission of this DVD because it was not produced during discovery. The failure to produce evidence in discovery generally requires exclusion of that evidence from the Court's consideration. See Fed.R.Civ.P. 37(c)(a) ("If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or a trial, unless the failure was substantially justified or is harmless.") Moreover, in light of the Court's rulings above, the Court finds that Payne is not prejudiced by the Court's failure to consider the contents of the DVD. Accordingly, the Court shall deny Payne's motion for leave to file a surreply.

IV. CONCLUSION

The Court finds that, with respect to Payne's DCWPA claims, the DCWPA does not provide a cause of action against individual supervisors; violations that occurred before January 28, 2007, are barred by the statute of limitations; injuries sustained before March 10, 2007, are not recoverable for failure to give timely notice; and Payne has failed to establish a prima facie case of retaliation. With respect to Payne's First Amendment claim, the Court finds that Payne spoke as a citizen on a matter of public concern but that he has failed to produce evidence sufficient for a jury to conclude that there is a causal connection between his protected speech and his termination and suspension. As for Payne's due process claims, the Court finds that the record clearly shows, and Payne has conceded, that he was afforded due process. The Court also finds that Payne has failed to state a separate cause of action for hostile work environment and retaliation.

For the foregoing reasons, the Court shall GRANT Defendants' [47] Motion for Judgment on the Pleadings and for [45] Summary Judgment and DENY Plaintiff's [54] Motion for Leave to File Surreply. An appropriate Order accompanies this Memorandum Opinion.

Date: September 29, 2010.