Elevator Inspector Loses Whistle-Blower Claims

WASHINGTON, D.C. (CN) - An elevator inspector who lost his job after linking rider deaths to laidback audits cannot pursue whistle-blower claims, the D.C. Circuit ruled.

The D.C. Department of Consumer and Regulatory Affairs hired Audrick Payne as an elevator inspector in September 2001 and fired him in November 2006.

"From the beginning of his tenure, Payne observed that the frequency and quality of inspections was not, at least in his opinion, up to the standards required for either safety or regularity," Senior Circuit Judge David Sentelle wrote for a three-judge panel. "Indeed, in his filings in the District Court and before us, Payne produces instances of serious and even tragic accidents allegedly attributable to the deficient inspections he decried for years."

Payne was known to shut down "considerably more" elevators than other inspectors, according to the ruling.

Though supervisors commended Payne for his good intentions, they saw him as rigid and frequently reprimanded him for issuing what they saw as overly large fines.

One of the elevator jobs that Payne had tried to shut down proved fatal.

Payne had issued a stop-work order and a $21,000 fine against a large apartment complex that was installing elevators without permits with the help of a former department inspector who operated a third-party inspection business.

A week after his superiors overruled him and allowed the third-party inspector to complete the inspection of the construction, a malfunctioning elevator in the complex caused a woman to fall to her death.

In addition to speaking to the Washington Post about that accident, Fox 5 News also broadcast a March 2006 segment about "dangerous elevators" that used documents bearing Payne's signature and handwriting.

Payne also testified twice before the Council of the District of Columbia about the deficiencies he observed.

In February 2005 testimony, Payne "attributed the death of a firefighter to an outdated alarm system and testified more generally that the district was not devoting adequate resources to inspection of elevators," according to the ruling.

About a year later, he testified before the same committee that conditions had deteriorated.

For his lawsuit deposition, Payne said his supervisor had been upset that Payne mentioned his name "a number of times" while testifying before the committee.

Payne failed, however, to offer any evidence supporting "his statement about his supervisor's anger," Sentelle wrote.

The district meanwhile pointed to the other reasons it had for opening a year-long investigation into Payne and ultimately firing him.

Several building owners had complained to the district that they felt Payne was trying to coerce them into hiring his private elevator-inspection business.

Payne also admittedly took elevators out of service during this time without following department orders to first get a supervisor's approval.

These factors led a federal judge to conclude that Payne's claims against district and four supervisors could not survive summary judgment.

Sentelle and the other members of the D.C. Circuit refused Friday to revive Payne's whistle-blower claims.

"As the district court aptly declared, Payne 'has produced no direct evidence that DCRA's decisions were motivated by Payne's testimony," Sentelle wrote.

The ruling notes that Payne produced neither direct nor circumstantial evidence of causation. Even the alleged temporal proximity is insufficient, the court found.

"The gap between the protected activity and the alleged retaliation is approximately eight months," Sentelle wrote. "The district court rightly rejected this theory. ... All Payne really offers is evidence that he made a protected disclosure and that at a later time he suffered a termination. The fact that one event precedes another does not in itself evidence causation."

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