Coleman v. District of Columbia ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 17, 2014 Decided July 17, 2015
No. 12-7114
VANESSA COLEMAN,
APPELLANT
v.
DISTRICT OF COLUMBIA, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cv-00050)
Jatinique Randle, Student Counsel, argued the cause for
appellant. On the briefs was Aderson Bellegarde Francois.
Carl J. Schifferle, Assistant Attorney General, Office of
the Attorney General for the District of Columbia, argued the
cause for appellees. With him on the brief were Irvin B.
Nathan, Attorney General, Todd S. Kim, Solicitor General,
and Loren L. AliKhan, Deputy Solicitor General.
Before: BROWN and MILLETT, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge MILLETT.
2
Dissenting opinion filed by Circuit Judge BROWN.
MILLETT, Circuit Judge: Following a major fire in which
a high-rise apartment building was destroyed, the District of
Columbia Fire and Emergency Medical Services Department
took disciplinary action against the Appellant, Fire Captain
Vanessa Coleman. That disciplinary proceeding set off a
series of charges and complaints by Coleman and counter-
charges by the Department, culminating in Coleman’s
discharge.
Coleman subsequently filed a lawsuit that included a
claim under the District of Columbia Whistleblower
Protection Act (“Whistleblower Act”), D.C. Code §§ 1–
615.51 et seq. On the Department’s motion for summary
judgment, the district court grouped Coleman’s numerous
communications with her supervisors into broad categories,
and then granted summary judgment to the Department on the
ground that most of those categories were not statutorily
protected types of communications, and for the one group that
was protected, the Department had articulated a legitimate,
non-retaliatory reason for its actions.
Whistleblower protection, however, is not disbursed or
denied en masse. And the Whistleblower Act imposes a
rigorous burden on defendants to establish by clear and
convincing evidence the legitimate reasons for an adverse
action. When Coleman’s complaints are considered
individually rather than categorically, a reasonable jury could
conclude that one or more of them qualifies as a protected
complaint under the Whistleblower Act. Coleman also came
forward with sufficient evidence for a reasonable jury to find
a prima facie case of retaliation as to those complaints. The
Department, for its part, failed to meet its demanding
summary judgment burden of establishing that any reasonable
3
juror would have to find by clear and convincing evidence
that it had legitimate, non-retaliatory reasons for its actions.
We therefore reverse the grant of summary judgment as
to those aspects of Coleman’s Whistleblower Act claim. With
one exception, we affirm the district court’s grant of summary
judgment as to Coleman’s other challenges.
I
Statutory Framework
The purpose of the District of Columbia’s Whistleblower
Act is “to encourage disclosure of wrongdoing to persons who
may be in a position to act to remedy it.” Wilburn v. District
of Columbia, 957 A.2d 921, 925 (D.C. 2008) (emphasis
omitted). The Whistleblower Act thus is designed to combat
serious misconduct, abuses of governmental authority, or
waste of public resources by creating an environment in
which government employees who witness wrongdoing feel
safe coming forward and are protected from retaliation. See
D.C. Code § 1-615.51; see also id. §§ 2-223.01–2-223.07
(extending similar protections to, inter alia, employees of
contractors for the D.C. government).
Sometimes, however, a workplace complaint is just a
workplace complaint. To qualify as protected
whistleblowing, the complaint must disclose “such serious
errors by the agency that a conclusion the agency erred is not
debatable among reasonable people.” Wilburn, 957 A.2d at
925; see also Williams v. Johnson, 776 F.3d 865, 870 (D.C.
Cir. 2015) (same). More specifically, the Act defines
“protected disclosures” as those that the would-be
whistleblower “reasonably believes” evidence:
(A) Gross mismanagement;
4
(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(a)(6); see also Williams, 776 F.3d at
870 (discussing scope of Whistleblower Act protection).
For complaints falling within those categories, the Act
bars a supervisor from “tak[ing] or threaten[ing] to take, a
prohibited personnel action or otherwise retaliat[ing] because
of the employee’s protected disclosure or because of an
employee’s refusal to comply with an illegal order.” D.C.
Code § 1-615.53(a).
The Act prescribes a distinct burden-shifting framework
to govern the proof of whistleblowing claims. See Bowyer v.
District of Columbia, No. 13-7012, 2015 WL 4079800, at *2
(D.C. Cir. July 7, 2015). To make out a prima facie claim of
retaliation under the Whistleblower Act, the plaintiff must
show by a preponderance of the evidence that (i) she made a
statutorily protected disclosure, and (ii) the disclosure was a
“contributing factor” behind (iii) an adverse personnel action
taken by her employer. See Crawford v. District of Columbia,
891 A.2d 216, 219, 221 (D.C. 2006). A “contributing factor”
is “any factor which, alone or in connection with other
factors, tends to affect in any way the outcome of the
5
[employment] decision.” D.C. Code § 1-615.52(a)(2). Once
a plaintiff establishes a prima facie case, the burden shifts to
the employer 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
activities protected by this section.” Id. § 1-615.54(b); see
also Freeman v. District of Columbia, 60 A.3d 1131, 1141
(D.C. 2012).
Factual Background
Appellant Vanessa Coleman is a 17-year veteran of the
D.C. Fire Department. She began as a cadet after graduating
from high school and rose through the ranks to become a
captain in command of an engine company.
On March 12, 2008, a large fire broke out in a high-rise
apartment building in the Mount Pleasant neighborhood of
Washington, D.C. It developed into a five-alarm fire that
destroyed the entire structure and left its nearly 200 residents
homeless. Coleman headed an engine company that
responded to the fire. Battalion Fire Chief John Lee served as
the Incident Commander, and directed the operations of
firefighters on the scene, including Coleman’s company.
Upon arriving at the fire, Coleman led her company to
inspect the basement of the building, as required by the
Department’s Standard Operating Guidelines. Before she
could reach the basement, however, Battalion Chief Lee
instructed her to proceed directly to the third floor of the
building. Coleman abandoned the basement check, following
her superior’s command. Coleman did not advise Lee that the
basement inspection had not been completed. Nor did Lee
confirm its completion with Coleman or anyone else.
6
The fire proved to be one of the largest in D.C.’s recent
history. Failure to complete the basement check proved fatal
to the Department’s efforts to control the fire, which had in
fact begun in the basement. The fire and the Fire
Department’s failure to contain it generated widespread
public attention and criticism.
In the following days, the Department conducted an
informal internal critique of the Mount Pleasant fire that
included an inquiry into Coleman’s actions. In response,
Coleman sent memoranda to her superiors explaining her
actions, and advocating that a formal review of the Mount
Pleasant fire be undertaken to investigate all of the
departmental failures that day.
On April 5, 2008, Battalion Chief John Lee issued
Coleman a citation for violating the Standard Operating
Guidelines and the District of Columbia Fire and Emergency
Medical Services Department Order Book “by (1) not
reporting her basement findings to Command; or (2) if unable
to perform this assignment as so ordered by Command,
immediately notify[ing] Command of this fact.” J.A. 150.
Coleman refused to accept a settlement penalty, and instead
exercised her right to challenge the charge.
On April 21, 2008, Coleman wrote a memorandum to
Fire Chief Dennis Rubin explaining that she was challenging
the charge “because the violation referenced was not an
omission of neglect on [her] behalf. Instead, the error resulted
from the tactical decision of the IC [Incident Commander
John Lee].” J.A. 215. In Coleman’s view, “the execution of
the basement check wasn’t completed by [her company]
because the IC (deviating from standard protocol) ordered
[her company] to a greater assignment of priority.” Id. This,
Coleman asserted, evidenced a failure to properly manage fire
7
operations and to contain a large, multi-alarm fire. She also
repeated her recommendation that the Department conduct a
thorough and formal review of command failures at the
Mount Pleasant fire.
Four days later, on April 25, Battalion Chief John Lee
was cited for failing to follow up with Coleman’s company
regarding a basement report. Unlike Coleman, however, Lee
decided not to challenge the citation, and accepted an official
reprimand.
In May 2008, while Coleman awaited her hearing, she
wrote another memorandum to Chief Rubin, this time
complaining that, since April, her superiors had been failing
to endorse and timely process disciplinary actions she
initiated against her subordinates. When she received no
response from Chief Rubin, she continued over the next two
months to submit almost a dozen memoranda to the Chief
complaining that, among other things, her superiors were
collectively and intentionally ignoring her requests for
disciplinary support, misusing their authority to “cripple” her
professional career, and orchestrating a “mutiny” against her
by subverting her efforts to discipline those in her command.
J.A. 246, 267. Coleman also sent multiple communications to
Assistant Fire Chief Brian Lee expressing concern that her
disciplinary notices were not being timely processed.
On May 19, 2008, Battalion Fire Chief James Kane heard
Coleman’s appeal of her April 5th citation. He found her
guilty of the infraction, and recommended that she be
suspended for 24 duty hours. Assistant Chief Brian Lee
approved the recommendation.
On July 23, 2008, Coleman appealed her suspension to
Chief Rubin. In doing so, she filed a memorandum that not
only defended her own actions at the Mount Pleasant fire, but
8
also provided a detailed account of what she believed were
major command failures and dangerous practices by the
Department at the fire site. They included (i) failing to ensure
that each floor was checked and instead channeling resources
to the second floor in a mistaken belief that the fire originated
there, (ii) neglecting to request adequate resources at the
outset, (iii) untimely activating a second alarm to increase
fire-fighting resources, and (iv) requiring firefighters to work
in exceptionally dangerous conditions even though experts
knew early on that the building could not be saved. Coleman
explained that those failures both caused the loss of the
building and unnecessarily put firefighters at “extreme risk.”
J.A. 297.
While Assistant Chief Brian Lee had previously
contemplated the possibility of subjecting Coleman to a
fitness examination, within 48 hours of receiving the July
23rd memorandum, he pulled the trigger and ordered that
Coleman immediately undergo an evaluation of her
psychological fitness for duty. He grounded his order in “her
constant and sometimes alarming e-mails and reports about
possible conspiracy in the work place; and her inability to
adhere to directives given by myself and other Superior
officers,” concluding that the Department needed to
“determine if there is a medical cause for this behavior.” J.A.
306.
On July 28, 2008, Chief Rubin affirmed the May 19th
administrative decision suspending Coleman for her
performance at the Mount Pleasant fire. Three days later,
Coleman reported for the fitness-for-duty evaluation as
ordered, but refused to sign the requisite consent form
because it required her to attest that her participation was
voluntary. She was concerned about waiving challenges to
the test results and releasing her medical records. That same
9
day, she submitted a memorandum to Chief Rubin stating that
she believed she was being ordered to take the psychological
examination in retaliation for “whistle blowing” and that she
“was uncomfortable consenting to the waiver form without
first acquiring legal guidance.” J.A. 327. The Department
responded by charging Coleman with insubordination.
Coleman informed the Department that she would not
complete the fitness-for-duty examination unless certain
changes were made to the waiver form so that she could
record that she was submitting to the evaluation “under duress
and under the threat of further retaliation or adverse personnel
action.” J.A. 81. At that point, the Department put the
examination and insubordination charge on hold pending the
outcome of an equal employment investigation into her
charges. Once that investigation concluded with no action,
the Department reinstated the order that Coleman undergo the
fitness evaluation. Coleman, however, continued to refuse to
consent to the testing. On January 13, 2009, the Department
formally commenced insubordination proceedings against her.
The Department’s Trial Board found Coleman guilty of
two counts of insubordination. The Board recommended that
she receive a demotion of two ranks and be ordered again to
submit to the fitness-for-duty examination. Chief Rubin
agreed.
Coleman again refused to give her voluntary consent to
the examination, despite a warning that it could lead to her
termination. The Department terminated Coleman on October
7, 2009.
Procedural History
Coleman subsequently filed suit in the United States
District Court for the District of Columbia alleging violations
10
of the Whistleblower Act, along with other state and federal
causes of action. 1 Coleman named as defendants the
Department, Chief Rubin in his official capacity, and
Assistant Chief Brian Lee in his individual capacity
(collectively, “Department”). Coleman alleged that her
memoranda and other communications were statutorily
protected disclosures to Department management exposing
abuse of authority, gross mismanagement, violations of
federal and local laws, violations of Department rules, and
substantial and specific dangers to public health and safety.
She further alleged that she was unlawfully retaliated against
as a result of those protected disclosures through reprimands,
suspensions, orders to submit to the fitness-for-duty
evaluation, and eventually termination.
The district court granted summary judgment for the
Department and dismissed Coleman’s complaint. Grouping
Coleman’s communications into seven broad categories (such
as all “internal [intra-Department] communications regarding
the Mount Pleasant fire”), the court concluded that only three
categories of communications were even arguably protected
by the Whistleblower Act. Coleman v. District of Columbia,
893 F. Supp. 2d 84, 93, 101 (D.D.C. 2012). Those three
categories covered Coleman’s internal and external
communications and legal filings alleging race and sex
discrimination in the Department, and thus could be protected
allegations revealing violations of federal and local law.
Coleman’s communications regarding the Mount Pleasant
fire, however, were categorically dismissed as pertaining only
to an internal disciplinary matter. Id. at 101–102.
1
The federal claims gave rise to federal question jurisdiction, as
well as supplemental jurisdiction over Coleman’s Whistleblower
Act and other related state-law claims. See 28 U.S.C. §§ 1331,
1367.
11
With respect to the communications that the district court
found were generally protected, the court held that, even
assuming they were a substantial factor in sanctioning
Coleman, the Department had an independent and legitimate
reason for taking those actions. Coleman, 893 F. Supp. 2d. at
102. In so ruling, the court relied on certain justifications for
the Department’s actions that the court deemed to have been
“impliedly offered” by the Department. Id. at 103. The court
also relied on Coleman’s acknowledgement that the
challenged actions were taken in response to communications
that the district court had said were categorically unprotected.
Id. at 104. Because it had ruled that ordering the fitness-for-
duty evaluation was not retaliatory, the district court also held
that the Department’s sanctions for Coleman’s non-
compliance with that order, including ultimately termination,
were not retaliatory either. See id. at 105.
Finally, the court granted summary judgment on
Coleman’s First Amendment claim against Assistant Chief
Lee, see Coleman, 893 F. Supp. 2d at 94–99, as well as her
retaliation and hostile work environment claims under Title
VII of the Civil Rights Act, 42 U.S.C. §§ 2000 et seq., and the
District of Columbia’s Human Rights Act, D.C. Code §§ 2-
1401 et seq. See Coleman, 893 F. Supp. 2d at 105–109.
Coleman does not challenge those rulings on appeal. 2
2
The district court had dismissed Coleman’s other constitutional
and common law claims in a December 7, 2011 order granting the
Department partial judgment on the pleadings. See Coleman v.
District of Columbia, 828 F. Supp. 2d 87, 90–97 (D.D.C. 2011).
Coleman has not presented any objection to that ruling on appeal.
12
II
Analysis
We review the district court’s grant of summary
judgment de novo, drawing all reasonable inferences from the
evidence in favor of the nonmoving party. See Payne v.
District of Columbia, 722 F.3d 345, 351 (D.C. Cir. 2013).
Summary judgment may only be granted when there is no
genuine dispute as to any material fact, and the moving
party—in this case, the Department—is entitled to judgment
as a matter of law under the governing legal standard. Id.
Under the Whistleblower Act, once a prima facie case
has been established, the defendant must prove by clear and
convincing evidence that it had a legitimate, non-retaliatory
reason for any adverse employment actions that were taken in
the wake of a protected disclosure. D.C. Code § 1-615.54(b);
see also Bowyer, 2015 WL 4079800, at *2. Accordingly, in
reviewing the grant of summary judgment to the Department,
we must “view the evidence presented through the prism of
th[at]” clear and convincing “substantive evidentiary burden,”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986);
see id. (“Whether a jury could reasonably find for either party
* * * cannot be defined except by the criteria governing what
evidence would enable the jury to find for either the plaintiff
or the defendant.”).
In reviewing a claim under the Whistleblower Act, this
court applies the substantive law of the District of Columbia
and “[o]ur duty * * * is to achieve the same outcome we
believe would result if the District of Columbia Court of
Appeals considered the case.” Payne, 722 F.3d at 353.
13
Protected Disclosure
At the summary judgment stage, the central question is
whether a “reasonable juror ‘with knowledge of the essential
facts known to and readily ascertainable by the employee’”
could find that one or more of Coleman’s memoranda
disclosed an “objectively serious” governmental act of gross
mismanagement, gross misuse or waste of public funds, abuse
of authority, a material violation of local or federal law, or a
substantial and specific danger to public health and safety.
Williams, 776 F.3d at 871–872. 3 Whether the employee made
a protected disclosure is often “a ‘fact specific inquiry.’”
Williams, 776 F.3d at 870 (quoting Shekoyan v. Sibley Int’l,
409 F.3d 414, 423 (D.C. Cir. 2005)).
Applying that standard, a reasonable jury could find that
Coleman’s July 23rd memorandum cataloging serious and
potentially life-endangering problems with the Department’s
response to the Mount Pleasant fire was a protected
disclosure. That memorandum contained a detailed account
of the multiple departmental command failures Coleman
observed at the Mount Pleasant fire, which was one of the
most devastating fires in recent Department history and which
had generated public scrutiny and criticism of departmental
operations. Coleman pointed with specificity to how
inaccurate reports about conditions inside the burning
building impeded firefighters’ ability to pinpoint the location
of the fire, which is critical to containing a fire. She also
described the Department’s lack of attention to established
firefighting procedures, such as failing to check each floor as
firefighters ascended, and to the misdirection of resources,
3
See also Wilburn, 927 A.2d at 925; Zirkle v. District of Columbia,
830 A.2d 1250, 1259–1260 (D.C. 2003); D.C. Code § 1-
615.52(6)(A)-(E).
14
citing in particular an order diverting units to the second and
third floors. Coleman’s memorandum went on to explain that
there were insufficient firefighters on the scene to extinguish
what ended up being a five-alarm fire or to contain its spread.
As a consequence, the firefighters on the scene suffered from
“fatigue and mental exhaustion.” J.A. 297. She also alleged
that alarms calling in additional units to help fight the fire
were unjustifiably delayed. Lastly, Coleman states that “on
scene experts knew some 10 minutes into the fire that the
building wouldn’t be saved” and that, in spite of this
knowledge, “interior [firefighting] crews were put at extreme
risk.” Id.
A reasonable jury could conclude that the July 23rd
memorandum disclosed either gross mismanagement or a
“substantial and specific danger to the public health and
safety,” topics specifically protected by the Whistleblower
Act. D.C. Code § 1-615.52(a)(6)(A) & (E). If true (a matter
on which we express no opinion), the statements would reveal
serious and potentially life- and property-endangering errors
by the D.C. Fire Department in managing the blaze. The
memorandum is detailed and specific; it is not a general
undifferentiated complaint that contributes little to the
disclosure of actual governmental misconduct. The concerns
raised, moreover, bore directly on a matter of significant
public concern—the much-scrutinized Mount Pleasant fire.
The disclosures thus go far beyond a mere difference of
opinion among employees or self-interested finger-pointing
by Coleman. Instead, if true, they would reveal official
missteps that stand separate and apart from Coleman’s
individualized personnel dispute over responsibility for
checking the basement.
15
In granting summary judgment to the defendants, the
district court grouped all of Coleman’s “internal [intra-
Department] communications regarding the Mount Pleasant
fire” together and declared that entire category to be
unprotected because Coleman’s concern was to preserve her
“own career” and to fend off the Department’s “erroneous
citation of [her] for a professional error.” Coleman, 893 F.
Supp. 2d at 101.
The question, however, is whether a reasonable jury
could find that any, not all, of Coleman’s internal complaints
were protected. And that inquiry turns on whether an
individual disclosure might “reasonably” be viewed as
revealing “objectively serious” misconduct. Williams, 776
F.3d at 871–872. The whistleblower’s subjective motivation
is beside the point. See id. Indeed, there is nothing inherently
contradictory about disclosing serious misconduct while also
defending one’s own professional reputation. The proper
focus thus is on the objective content of the information
revealed, not the motives of the revealer. Cf. Horton v.
Department of Navy, 66 F.3d 279, 282–283 (Fed. Cir. 1995)
(discussing Congress’s rejection of employee motive as a
factor in determining whether a disclosure is protected under
the federal whistleblower law); see also Freeman, 60 A.3d at
1141 (“In construing the [Whistleblower Act], we have found
it helpful to consider how its federal counterpart, 5 U.S.C.
§ 2302(b)(8)(B) (2008), and similar state whistleblower laws
have been interpreted.”).
Finally, the Department’s objection (Br. 28) that aspects
of the disclosure were “rumor” or “too vague and unsupported
to be a protected disclosure” simply ignores the specific
content and details laid out in the July 23rd memorandum.
The argument also overlooks that Coleman was a 17-year
veteran of the D.C. Fire Department, who had earned her way
16
up to the level of Captain. She thus had first-hand experience
fighting fires in the District, and was familiar with the
Department’s command and containment protocols. Her
“expertise in these matters supports the reasonableness of her
belief” that the Department’s actions posed a substantial
threat to public safety. Or at least a reasonable jury could so
find. Chambers v. Department of the Interior, 602 F.3d 1370,
1379 (Fed. Cir. 2010).
While it presents a closer question, a reasonable jury
could also find that Coleman’s April 21st memorandum to
Chief Rubin was a protected disclosure because it disclosed
that Battalion Chief John Lee had reassigned Coleman’s
company before the basement check had been completed.
Coleman’s memorandum did not simply assert her
blamelessness in the missed basement check, but instead went
further and disclosed that Lee independently had failed to
follow up on and confirm that the basement check had been
completed. Given how critical that check was to the fire’s
containment, a reasonable jury could find that Lee’s oversight
created a significant safety risk. Indeed, four days after
Coleman’s memorandum, the Department cited Lee for the
very conduct that Coleman had described.
Coleman also claims on appeal that an April 1st
memorandum expressing her concern over the Department’s
decision to conduct only an informal, rather than formal,
investigation of the Mount Pleasant fire was protected. We
disagree. No reasonable jury could find that the decision
whether to proceed at least initially through an informal rather
than a formal investigatory process is the kind of serious error
that is “not debatable among reasonable people.” White v.
Department of Air Force, 391 F.3d 1377, 1383 (Fed. Cir.
2004). The April 1st memorandum also lacks the detail and
specificity needed to link the complaints to public safety. See
17
Chambers, 602 F.3d at 1376 (disclosure “reveal[ed] a
substantial and specific danger to public health and safety”
because there were “specific allegations or evidence either of
actual past harm or of detailed circumstances giving rise to a
likelihood of impending harm”).
Finally, we decline to consider whether Coleman’s July
31st memorandum to Chief Rubin explaining why she refused
to submit to the fitness-for-duty examination is a protected
disclosure. Coleman made no effort in her opening brief to
link this disclosure, which postdated the evaluation order, to
further acts of retaliation. If she meant instead to wrap this
disclosure in a broader claim that she was retaliated against
for refusing to comply with an unlawful order, that theory was
forfeited on appeal because it was presented only in her reply
brief. See Novak v. Capital Mgmt. & Development Corp., 570
F.3d 305, 316 n.5 (D.C. Cir. 2009).
Retaliation
Identifying a protected communication was only half of
Coleman’s summary-judgment task. That is because blowing
the whistle does not immunize employees from any and all
employment actions; it only protects against those adverse
employment actions for which the employee’s disclosure or
attempted disclosure was “essentially * * * a ‘but for’” cause.
Johnson v. District of Columbia, 935 A.2d 1113, 1119 (D.C.
2007). The Whistleblower Act spells out specifically how
that causation standard is to be met. First, Coleman had to
come forward at summary judgment with sufficient evidence
from which a reasonable jury could conclude both that her
communication was protected and that her whistleblowing
was a contributing factor to a “prohibited personnel action,”
D.C. Code § 1-615.54(b). See Payne, 722 F.3d at 353; see
also Freeman, 60 A.3d at 1141.
18
Once Coleman met that burden, the Whistleblower Act
required the government to show that there was no disputed
question of fact that the challenged action would have
occurred for legitimate reasons independent of Coleman’s
protected disclosure. More specifically, the government had
to prove that any reasonable juror would have to find that the
government had proven the legitimacy of its action by “clear
and convincing evidence,” D.C. Code § 1-615.54(b). See
Freeman, 60 A.3d at 1141; see also Bowyer, 2015 WL
4079800, at *2.
At the outset, the Department does not dispute that the
ordered fitness-for-duty examination, citation, suspension,
and ultimate discharge of Coleman constitute the types of
adverse employment actions that implicate the Whistleblower
Act’s protections. See D.C. Code § 1-615.52(a)(5)(A)
(defining prohibited personnel action as including
“recommended, threatened, or actual termination, demotion,
suspension, or reprimand; * * * referral for psychiatric or
psychological counseling; * * * or retaliating in any other
manner”); see also Freeman, 60 A.3d at 1141.
In concluding that the Department had met its burden of
justifying its employment actions, the district court committed
two legal errors. It implied justifications the Department had
not advanced, and it failed to enforce the Whistleblower Act’s
stringent burden of proof on the Department.
1. In identifying the Department’s non-retaliatory basis
for disciplining and discharging Coleman, the district court
relied in part not on reasons given by the Department, but
instead on those the court divined itself, and then deemed to
have been “impliedly offered.” Coleman, 893 F. Supp. 2d at
103. Proof in point: the district court stated that “defendants
have not specifically alleged an independent justification for
19
[reprimanding plaintiff] in their motion for summary
judgment”; instead, the court gleaned “possible
justification[s]” from the record. Id. at 104; see also id.
(stating that Coleman’s “pleading has inadvertently assisted
her opponents in constructing a justification for actions”).
That a trial court may not do.
In answering a plaintiff’s prima facie case, the burden is
on the employer-defendant to come forward with its actual
non-retaliatory justification for its employment decision. The
text of the Whistleblower Act itself requires that “the
defendant” rebut a showing of unlawful retaliation with proof
that the challenged employment action “would have”—not
could have—“occurred for legitimate, independent reasons”
regardless of the allegedly protected activities. D.C. Code
§ 1-615.54(b). A trial court may not do the defendant’s
summary-judgment work for it.
Precedent in analogous contexts confirms that the text of
the Whistleblower Act means what it says. The Supreme
Court has repeatedly held for federal employment laws—
where a defendant’s burden is generally only one of
production, rather than the Whistleblower Act’s duty of clear
and convincing persuasion—that the defendant must “clearly
set forth, through the introduction of admissible evidence, the
reasons for” its adverse employment actions. Texas
Department of Community Affairs v. Burdine, 450 U.S. 248,
255 (1981); see also St. Mary’s Honor Center v. Hicks, 509
U.S. 502, 509–510 (1993) (defendant must respond with
“evidence which, taken as true, would permit the conclusion
that there was a nondiscriminatory reason for the adverse
action”); cf. McKennon v. Nashville Banner Publishing Co.,
513 U.S. 352 (1995) (holding that, where an employer’s
actual motive for an employee’s termination was unlawfully
20
discriminatory, the post hoc advancement of reasons that
could have led to termination does not avoid liability).
Beyond that, to hypothesize why a defendant could have
taken an employment action is to ask the wrong question.
The point of the Whistleblower Act’s anti-retaliation
provision is to make clear to employers that they cannot use
their power to punish employees for whistleblowing or to cow
them into silence. See D.C. Code § 1-615.51. Asking
whether a misbehaving employer could have taken the same
employment action for a legitimate reason, rather than
whether the employer did so, would enfeeble the Act’s most
basic protection for employees and would open the door to
after-the-fact justifications for employment actions that were,
in fact, designedly retaliatory. That is not how causal analysis
works in the analogous employment-discrimination context,
and there is no textual or precedential reason to think the D.C.
Council wanted a peculiarly anemic version of burden-
shifting in the whistleblower context.
2. The district court also failed to analyze the
Department’s summary-judgment evidence under the exacting
“clear and convincing” standard of proof that the
Whistleblower Act imposes, D.C. Code § 1-615.54(b). See
McCormick v. District of Columbia, 752 F.3d 980, 986 (D.C.
Cir. 2014) (summary judgment on causation prong
appropriate where the “only evidence” on this point supported
the “independent lawful reasons” for termination offered by
the defendant); see also Liberty Lobby, 477 U.S. at 254
(summary judgment must factor in “the criteria governing
what evidence would enable the jury to find for either the
plaintiff or the defendant”).
More specifically, while the district court announced the
correct standard, it failed to recognize that, under the
21
Whistleblower Act, the burden of persuasion remains on the
defendant even once a legitimate and independent rationale
for an action has been articulated. Compare Freeman, 60
A.3d at 1141 (defendant’s burden under Whistleblower Act is
to “prove by clear and convincing evidence that the alleged
action would have occurred for legitimate independent
reasons” absent the protected conduct) (emphases added)
(quoting D.C. Code § 1-615.54(b)), and Bowyer, 2015 WL
4079800, at *2 (same), with St. Mary’s Honor Center, 509
U.S. at 509 (defendant’s analogous burden Title VII is simply
to “produc[e] evidence (whether ultimately persuasive or not)
of nondiscriminatory reasons”) (first emphasis added). 4
When the record is analyzed through the proper
summary-judgment lens, a reasonable jury could conclude
that (i) Coleman established a prima facie case of retaliation
with respect to her referral for a fitness evaluation, and (ii) the
Department failed to establish by clear and convincing
evidence that it would have taken the challenged actions for
legitimate, non-retaliatory reasons even in the absence of the
protected conduct.
To begin with, Assistant Chief Lee openly rested his
direction that Coleman undergo a fitness evaluation on her
4
In that regard, the dissenting opinion is mistaken in suggesting
(Dissenting Op. at 3–4) that the existence of a prima facie case
becomes largely irrelevant at the summary judgment stage once the
defendant asserts a legitimate, non-retaliatory reason for the
adverse action. Under the plain text of the Whistleblower Act, D.C.
Code § 1-615.54(b), Coleman’s establishment of a prima facie case
permanently shifted to the Department the burden of persuasion—
by clear and convincing evidence, no less—that the challenged
decision was not retaliatory. See Bowyer, 2015 WL 4079800, at *2,
*4.
22
filing of numerous complaints with superiors, which included
her April 21st and July 23rd communications detailing serious
problems at the Mount Pleasant fire. Assistant Chief Lee
specifically said that his decision was based in part on
Coleman’s “constant and sometimes alarming e-mails and
reports about possible conspiracy in the work place,” which
he deemed “disruptive to * * * the efficient management of
the Department.” J.A. 306.
In addition, the close temporal proximity between the
July 23rd memorandum in particular and the July 25th order
that Coleman undergo a fitness examination supports an
inference of causation. See Payne, 722 F.3d at 354 (close
temporal proximity “can provide circumstantial evidence of
causation”); Freeman, 60 A.3d at 1145 (proximity may “lend
support to an inference of a causal relationship”). 5
Coleman also came forward with affirmative evidence
that countered the Department’s proffered rationale for
ordering the examination—that her repeated memoranda
suggested she was unbalanced. Coleman put into the record a
declaration by a psychologist with significant experience in
conducting fitness-for-duty examinations for the District’s
Police and Fire Clinic. After evaluating Coleman and
reviewing the communications at issue and the testimony and
affidavits of the relevant officials and medical personnel in
the Department, Dr. Mitchell Hugonnet concluded that there
was “little to no logical, psychological or medical basis to
order Capt. Coleman to submit to a fitness for duty * * *
5
Other evidence indicates that Assistant Chief Brian Lee at least
contemplated having Coleman undergo a fitness-for-duty
examination a week before her July 23rd memorandum. But it was
within 48 hours of that protected memorandum that Lee chose to
order the exam.
23
psychological evaluation.” J.A. 579. Coleman also submitted
an affidavit from a subordinate working in her Company at
the time of the relevant events who attested to her fitness for
duty, stating: “I never witnessed any erratic or disturbing
behavior from Capt. Coleman. * * * [O]n the occasions that I
have had to communicate with Capt. Coleman, I have
observed no changes in her behavior, or witnessed conduct
that would give DC Fire & EMS reason to question her
physical or psychological abilities as an officer.” J.A. 557.
The Department cherry picks a few words and phrases
out of Coleman’s memoranda and labels them “paranoid” and
“disturbing,” reasoning that such wording provided a
legitimate basis for mandating the examination. Department
Br. 11–12. Language, however, must always be read in
context. And when the memoranda are read as a whole, there
is no basis for holding that—as a matter of law—Coleman’s
occasional word choices so entirely devalued or discredited
her substantive and detailed criticisms about fire management
in the April 21st and July 23rd memoranda as to warrant
summary judgment. While a jury could credit the
Department’s explanation, a jury could just as reasonably
agree with Dr. Hugonnet’s judgment that the memoranda “do
not raise any psychological or emotional issues that would
justify a psychological evaluation,” as her “thoughts are
cogent, well organized and follow logical themes.” J.A. 579–
580.
A reasonable jury could likewise agree with the Doctor
that, “[w]hile a few of the words that Capt. Coleman uses are
emotionally charged, such as the word ‘mutiny[,’] these terms
are not necessarily indicative of any emotional or
psychological dysfunction,” but rather are “likely indicative
of frustration in not getting closure on issues that Capt.
24
Coleman felt were important to the efficiency of the
Department’s operations.” J.A. 580. 6
To the extent, then, that the validity of the Department’s
rationale turns on whether its explanation is credited over that
of Coleman’s expert, that credibility judgment or “weighing
the evidence” is for a jury to make, not a court at summary
judgment. Jones v. Bernanke, 557 F.3d 670, 681 (D.C. Cir.
2009); see id. (“[A]t this stage we refrain from making
credibility determinations, weighing the evidence, or drawing
inferences from the evidence—these, after all are jury
functions, not those of a judge ruling on a motion for
summary judgment.”) (internal quotation marks omitted); see
also George v. Leavitt, 407 F.3d 405, 413–414 (D.C. Cir.
2005) (plaintiff proffered sufficient evidence from which a
jury could find that the employer’s stated reasons for
terminating plaintiff were pretextual, not “undisputed”).
Given all of those issues of disputed fact, Coleman’s claim
that the evaluation order was retaliatory survives the
Department’s motion for summary judgment. 7
6
Because Dr. Hugonnet’s assessment was based on the same set of
communications and actions that Lee cited as the impetus for his
order in the first place, the dissenting opinion is incorrect to suggest
that the timing of the assessment would as a matter of law preclude
a jury from crediting it. See Dissenting Op. at 10.
7
Her claim may also survive with respect to any subsequent
prohibited personnel actions that can be causally linked to the
evaluation order and the protected disclosures that Coleman claims
prompted it. The district court rested its holding that these
subsequent actions could not be shown to be retaliatory on its
conclusion that that order itself was not retaliatory, see Coleman,
893 F. Supp. 2d at 105. Having overturned that summary judgment
determination, we leave open on remand the question of whether
25
Finally, Coleman argues on appeal that her April 5th
citation and subsequent 24-hour suspension, as well as a June
5th citation for failing to enforce a grooming policy were
retaliatory as well.
The April 5th citation, however, predates all of the
protected disclosures that Coleman highlights on appeal, and
consequently could not have been caused by them. And the
suspension followed the Department’s determination, after an
evidentiary hearing, that Coleman did in fact make a mistake
at the fire ground when she failed to provide a basement
report. Although Coleman challenges that administrative
determination on appeal, the individually focused factual
question of whether Coleman actually made a mistake at the
fire site is a “wholly different” inquiry “from whether [the
Department cited her] because its investigation found that
[s]he had.” McCormick, 752 F.3d at 986. The latter is a
question of permissible employer motivation that this court
can review; the former is not.
Beyond that, Coleman presented no evidence that
Battalion Chief Kane, who presided over the hearing and
issued the suspension, had any knowledge of any protected
disclosure. Without evidence, circumstantial or otherwise,
that “the decision-maker[] responsible for the adverse action
had actual knowledge of the protected activity,” Coleman has
failed to create a disputed fact question about whether the
decision was retaliatory. McFarland v. George Washington
University, 935 A.2d 337, 357 (D.C. 2007); accord Talavera
v. Shah, 638 F.3d 303, 313 (D.C. Cir. 2011). Coleman thus
the Department may be held liable for subsequent adverse
personnel decisions stemming from Coleman’s refusal to submit to
the fitness-for-duty examination.
26
failed to make out even a prima facie case with respect to that
incident. 8
As for the June 5th citation, the district court deemed it
justified based on two rationales, neither of which the
Department itself proffered. That will not do. The
Department, moreover, did not supply on appeal any
alternative basis for affirming that decision. We consequently
vacate the grant of summary judgment as to the June 5th
citation. The reserved question of whether that claim was
forfeited by Coleman through her discovery responses
remains open on remand. See Coleman, 893 F. Supp. 2d at
104.
In closing, we note that the dissenting opinion spills a lot
of ink assembling summary judgment arguments that the
Department never pressed and on which the district court did
not rely. We do not dispute that a reasonable jury could credit
the evidence and draw the inferences on which the dissenting
opinion relies. Maybe the dissent is even correct that, were
we to weigh the evidence ourselves and draw inferences in
8
The D.C. Court of Appeals has subsequently noted (without
deciding) that its holding in McFarland could be limited if an
employee established causation based on a so-called “cat’s paw”
theory of liability. See Bryant v. District of Columbia, 102 A.3d
264, 268 n.3 (D.C. 2014); see also Staub v. Proctor Hosp., 131 S.
Ct. 1186, 1191–1194 (2011) (recognizing that liability could be
found under Title VII where the ultimate decisionmaker was not
motivated by discriminatory animus, but a lower-level supervisor
was and proximately caused the challenged employment action).
Coleman has made no attempt to proceed on such a theory here or
otherwise to suggest that McFarland’s actual-knowledge
requirement is not applicable.
27
favor of the defendants, the Department might have the better
of the argument.
But that is not how summary judgment is supposed to
work. This court is duty bound at this procedural juncture “to
view the facts in the light most favorable to the nonmoving
party,” and to draw all reasonable inferences in support of
Coleman—not the Department—while holding the
Department to its exacting burden of proof and the strategic
judgments it chose to make. Lash v. Lemke, 786 F.3d 1, 6
(D.C. Cir. 2015) (internal quotation marks omitted); see also,
e.g., Tolan v. Cotton, 134 S. Ct. 1861, 1863 (2014) (per
curiam) (vacating court of appeals’ judgment for disregarding
“the axiom that in ruling on a motion for summary judgment,
the evidence of the nonmovant is to be believed, and all
justifiable inferences are to be drawn in his favor”) (internal
quotation marks and brackets omitted).
In particular, whether or not the Department could have
argued that Coleman’s history of “conflict, dissension, and
disobedience,” Dissenting Op. at 10, underlay the referral for
a fitness evaluation, it is both telling—and procedurally
dispositive—that the Department did not make that argument
in any non-conclusory fashion on appeal, and only referenced
it in passing before the district court as well. See Defs.’ Br
38-40; Defs.’ Mot. for Summ. J. at 13, 25–28, 36–37,
Coleman v. District of Columbia, No. 1:09-cv-50 (RCL)
(Aug. 8, 2012), ECF No. 131. Thus if, as the dissent
suggests, Dr. Hugonnet did not address Coleman’s history in
detail, then he had company. More to the point, because the
court’s duty at summary judgment is to afford the plaintiff all
reasonable inferences from the record, “[i]t is not” and should
not be “enough merely to mention a possible argument in the
most skeletal way” in one sentence on the fortieth page of a
brief, and then “leav[e] the court”—or the dissenting
28
opinion—“to do counsel’s work.” Bryant v. Gates, 532 F.3d
888, 898 (D.C. Cir. 2008) (internal quotation marks omitted).
Likewise, while the Department perhaps could have
argued that Lee had a mistaken but reasonable and honestly
held belief that Coleman’s emails and actions warranted the
fitness evaluation, see Dissenting Op. at 9, it did not do so.
Unlike the dissenting opinion, we do not believe it is
appropriate for this court to save a summary-judgment
movant from the consequences of “its own muddled litigation
strategy.” Potter v. District of Columbia, 558 F.3d 542, 552
(D.C. Cir. 2009) (Williams, J., concurring); see also George,
407 F.3d at 415–416 (declining to affirm summary judgment
on an essentially identical “theory” that the government “did
not rely on * * * before us”). 9
The dissent grounds its contrary conclusion in case law
that did not involve the far more exacting clear-and-
convincing standard of proof that the defendants bear here.
See Dissenting Op. at 8; see also Aka v. Washington Hospital
Center, 156 F.3d 1284, 1289 (D.C. Cir. 1998) (noting
employer’s burden of production, not persuasion, under
federal burden-shifting framework). The dissenting opinion’s
reliance (at 8) on Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133 (2000), is even more baffling, since Reeves
says only that “abundant and uncontroverted independent
evidence” may be sufficient to obtain summary judgment
9
The dissenting opinion’s worry about the policy implications of
the decision also steps out of bounds. Whether the Whistleblower
Act should be applied to public safety agencies is a policy call for
the legislature. Our duty is to apply the statute as written and to
hew to precedent.
29
when the defendant does not bear any burden of proof at all,
id. at 148 (emphasis added). 10
Here, on what the dissenting opinion deems the key
question—“whether Lee honestly thought an exam was
warranted” because of Coleman’s history of dissension and
complaints (Dissenting Op. at 11)—the evidence is
controverted by (i) the Department’s admission that
Coleman’s communications played a role in the referral, (ii)
Coleman’s expert, (iii) the testimony of her colleague, and
(iv) the thus far uncontroverted fact that the only intervening
event between Lee’s wondering about a referral and his
decision to order it was Coleman’s protected disclosure on
July 23rd. Keeping in mind the Department’s exceptional
burden under the Whistleblower Act, we hold only that when
all reasonable inferences in this record are drawn in favor of
Coleman, the record does not compel as a matter of law the
conclusion either (i) that Coleman’s protected complaints
about fire management did not “tend[] to affect in any way”
the Department’s decision to refer her for a fitness for duty
examination, D.C. Code § 1-615.52(a)(2), or (ii) that the
Department proved by clear and convincing evidence that the
decision would have occurred for “legitimate, independent
reasons” even if Coleman had not made the protected
complaints, id. § 1-615.52(b).
10
This case stands in sharp contrast to Johnson where the plaintiffs
provided “no evidence” that the defendant’s proffered rationale was
pretextual. See 935 A.2d at 1122; see also Bowyer, 2015 WL
4079800, at *5 (summary judgment appropriate where plaintiffs
made no effort to show that the asserted reason for adverse action
was pretextual).
30
III
Conclusion
A reasonable jury could conclude based on the summary
judgment record that one or more of Coleman’s individual
complaints qualifies as protected under the Whistleblower
Act, that Coleman established a prima facie case of retaliation
as to those complaints, and that the Department failed to rebut
that prima facie case with clear and convincing evidence of a
legitimate, non-retaliatory reason for its actions. Accordingly,
we reverse the grant of summary judgment in favor of the
Department as to those aspects of Coleman’s Whistleblower
Act claim, as well as to the June 5th citation. We remand for
the determination whether and to what extent the Department
may be held liable for subsequent adverse personnel decisions
stemming from Coleman’s refusal to submit to the fitness-for-
duty examination, and for further proceedings consistent with
this opinion. We affirm the district court’s grant of summary
judgment on Coleman’s Whistleblower Act claim as it relates
to her April 5th citation and May 31st suspension.
So ordered.
BROWN, Circuit Judge, dissenting: This is an unusual
case—one in which the court’s interpretation of the
Whistleblower Protection Act, D.C. Code §§ 1-615 et seq.
(“WPA”) makes a virtue of insubordination; where the
existence of putative protected disclosures means defiance is a
complete defense—or at least a justification for a jury trial.
I reluctantly agree with my colleagues that Coleman’s
self-serving defenses to the discipline initiated by the Fire
Department included, among much finger-pointing and
disclaiming of responsibility, some complaints that might
qualify as protected disclosures under the WPA. I also agree
the WPA requires a defendant to meet a stringent standard
when retaliation is alleged, and that a district court cannot
compensate for inadequacies in the defense’s case by drawing
its own inferences as to the legitimacy of the employment
actions taken. Here, the employer marshalled a mountain of
evidence supporting the legitimate, non-retaliatory reasons for
its employment decision; but, because defense counsel failed
to recognize that Coleman’s blame-shifting criticisms might
fall within the broad ambit of protected disclosures, the
summary judgment motion was not as strong as it might have
been. However, as the court notes, the Department did
articulate legitimate, non-retaliatory rationales for referring
Coleman for a fitness evaluation. See Mot. for Summ. J. at 2–
16, 26–29, 36–37, Coleman v. District of Columbia, No. 1:09-
cv-50 (RCL) (Aug. 8, 2012), ECF No. 131. And the district
court considered the Department’s reasons. See J.A. 113
(“[Coleman’s] filings, as well as [her] other behavior, gave
the defendants legitimate concern about her mental state, and
her ability to safely command her company.”) (emphasis
added). Given Coleman’s anemic and largely irrelevant
rebuttal, no reasonable jury could have concluded the
Department’s purpose or motive was retaliatory. The
Department’s reasons for ordering the fitness evaluation hold
up even under the WPA’s clear and convincing standard.
2
To begin at the beginning, Coleman went to work for the
D.C. Fire and Emergency Medical Services Department
(“FEMS” or “the Department”) right out of high school. By
December 2007 she was a captain in charge of an engine
company.
In March 2008, a devastating fire erupted in a high rise
apartment building in Washington’s Mount Pleasant
neighborhood. Under FEMS Standard Operating Guidelines,
the first company to arrive at a fire scene is responsible for
checking the building’s basement, and Coleman’s company
was the first to arrive. That fire, one of the largest in the D.C.
Fire Department’s recent history, was badly managed. The
apartment building was totally destroyed and a nearby church
was badly damaged. An initial investigation indicated that
miscommunications contributed to the bad outcome. Battalion
Fire Chief John Lee, who was in charge of the fire scene,
radioed Captain Coleman for a “basement report.” Coleman
told him her company was on the second floor. The basement
check, which had been Captain Coleman’s initial
responsibility, was never completed. Coleman’s excuse was
that BFC Lee had ordered her to the third floor of the
building. Lee acknowledged that he gave the order and did
not confirm that the basement check had been completed.
Coleman followed his orders with alacrity but did not inform
Lee or Command this crucial task had been neglected. It was
Coleman’s obligation to inform command of her inability to
effectively carry out an order. Subsequent analysis of the fire
suggested the omission may have fatally undermined the
Department’s efforts to control the fire since it apparently
started in the basement. BFC Lee and Captain Coleman each
placed blame at the other’s feet; both were charged with a
violation of fire protocols. John Lee accepted the proposed
discipline and was reprimanded. Coleman refused to accept
any responsibility, challenged the decision, and ultimately
3
received a suspension. Coleman’s claim to whistleblower
protection arises out of her efforts to escape criticism for the
Mount Pleasant debacle.
Coleman instigated a near-obsessive campaign for
absolution. This campaign involved a barrage of e-mails to
her immediate supervisors and beyond, the circulation of a
blog post entitled Vanessa Coleman’s Job Crisis Journal, a
radio interview, a letter to the mayor and two D.C.
councilmembers, an EEO complaint, and finally a refusal to
submit to a fitness evaluation she had been ordered to
undergo. Coleman’s fixation with clearing herself of
wrongdoing culminated in the filing of this lawsuit, alleging
the request for a fitness evaluation was an act of retaliation by
the Department. Not surprisingly, the district court concluded
the Department had articulated legitimate, non-retaliatory
reasons for its actions. First, the court concluded the
Department “reprimanded [Coleman] for making an error at
the scene of the fire because they found she actually made
such an error.” J.A. 104 (emphasis in original). Moreover, the
court noted once defendants offered a legitimate, non-
retaliatory reason for taking action, a plaintiff’s inability to
show the proffered reasons are mere pretext is fatal. The court
held that “[b]y repeating and documenting her long trail of
filings and memoranda, [Coleman] has inadvertently provided
documentary support for defendant’s legitimate reason for
taking action against her.” J.A. 114.
As the district court noted, once the employer asserts a
legitimate, non-discriminatory reason for the challenged
action, see Brady v. Office of Sergeant at Arms, 520 F.3d 490,
494 (D.C. Cir. 2008), the court’s task is to review all the
evidence to determine a single question: whether the evidence
“either separately or in combination provides sufficient
evidence for a reasonable jury to infer retaliation.” Jones v.
4
Bernanke, 557 F.3d 670, 679 (D.C. Cir. 2009); see also
Crawford v. District of Columbia, 891 A.2d 216, 221 n.12
(D.C. 2006) (adopting the McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), burden shifting paradigm for
WPA cases). The only reason the prima facie case is
important here is because defendants, confident that
Coleman’s self-serving litany of excuses could not be deemed
protected disclosures, relied more heavily on the plaintiff’s
procedural deficiencies than on the Department’s abundance
of supporting facts.
The confusion is understandable. Ordinarily, a protected
disclosure precedes and arguably leads to the adverse
employment action and thus the inference of retaliation. Here,
in contrast, Captain Coleman was already in the midst of a
disciplinary procedure when she raised the disclosures at issue
as a defense. She then claimed subsequent employment
actions—the ordered fitness evaluation and the termination
that resulted from her adamant refusal to follow orders—were
retaliatory. But, these actions rise and fall together. If the
initial order for a fitness for duty assessment was not
retaliatory, the many additional opportunities to comply
cannot be faulted.
Assistant Chief Brian Lee’s intuition that all might not be
well with Coleman was not, as the court contends, cherry
picking a few words out of context. Maj. Op. at 23. Paranoia
was the leitmotif of Coleman’s communications during this
period. Coleman purported to “cite” a superior claiming he
had “orchestrated a behavior of mutiny.” J.A. 272. She
referred to a “conspiracy” against her, J.A. 272, and compared
herself to a victim of “concealed acts of friendly fire” during
“combat,” J.A. 249a, 253. She wrote that her superiors were
engaged in a “pursuit” to “diabolically cripple [her]
professional career,” and if quick action were not taken to
5
correct “such violent, misuse of authority,” the “entire [Fire
Department] will lie in irreversible peril,” J.A. 246, 248. In
another communication, Coleman stated: “If a man is facing
execution, at a certain time and certain place, it is his civic
right to be explained the charge for which he is being
executed for. It’s too late to remit explanation after the man is
dead—having already been executed.” J.A. 249a. Coleman
sometimes made these communications in a manic fashion;
she wrote, for example, six memoranda to the Fire Chief in a
single day. And Assistant Chief Brian Lee had other
indications that Coleman’s mental state might be
deteriorating. While talking to Coleman, Lee noticed that she
raised the same issues repeatedly and sounded “frantic,”
“disjointed,” and even a “little incoherent.” J.A. 893, 915–16.
Given these curious communications, any supervisor worth
their salt would question whether an employee was fit for
duty.
The Department also offered other reasons for ordering
the evaluation. In his affidavit, Brian Lee cited as the most
significant sign of erratic behavior that “Coleman’s
continually disregarded orders and the chain of command,
[and] repeatedly placed her subordinates and superiors on
numerous charges . . . .” J.A. 457. Indeed, he asked for
“immediate help” in ordering a fitness for duty evaluation
precisely because Coleman had violated “the chain of
command” and her reports had become “more alarming.” J.A.
288. Significantly, Lee asked for assistance in ordering the
evaluation a full week before Coleman’s July 23rd protected
disclosure—robust proof that Lee did not order the evaluation
for retaliatory purposes.
The different attitude displayed by Lee and Coleman
toward firehouse culture is illuminating. Lee continually
stressed the importance of obeying orders. He described the
6
Department as a “paramilitary organization” and stressed the
impropriety of willfully disobeying orders. Because being
willing to follow orders is part of the contract to which every
member of a fire department agrees when they accept the job,
he found Coleman’s objection that she had not consented to
the fitness exam incomprehensible. In an organization where
following orders is essential to function, following orders
cannot be inconsistent with consent. Coleman, in contrast,
refused to follow orders with which she disagreed. In 2006
Coleman alleged she was the victim of gender discrimination.
After an exhaustive investigation, no probable cause was
found to support her complaint, but a review of previous
complaints revealed “that every time Captain Coleman was
subject to personal discipline or something she did not like,
she alleged discrimination.” J.A. 459, Aff. of Detria Liles
Hutchinson. Soon after Coleman was promoted to captain she
was informed that several discrimination complaints had been
made against her. Coleman refused to meet with the head of
FEMS’s Women’s Advisory Committee; when the manager
of the EEO Program, Detria Hutchinson, went to the
Firehouse to talk with her, Coleman refused to meet with her;
and when that refusal led to an order to attend an EEO for
Managers class Coleman refused to comply, first claiming she
had a flat tire and then refusing to go because she claimed the
class was “punitive.” Coleman subsequently filed charges
against Hutchinson for recommending she attend the EEO for
Managers class. Hutchinson concluded: “Captain Coleman
believes . . . she is above such training.” J.A. 462.
The only time Coleman insisted that orders must be
followed is when she believed that requirement excused her
actions at the Mount Pleasant fire. The Trial Board’s
consideration of the charges of the insubordination that
resulted from refusing the fitness exam confirmed this pattern.
After a comprehensive review of Captain Coleman’s
7
personnel record, the Board noted a “particularly alarming”
finding: Captain Coleman frequently had conflicts with
superior officers and subordinates throughout her career.
Coleman’s repeated refusals to submit to a fitness
evaluation—a clear case of insubordination in a department as
hierarchical as FEMS—provided another sufficient alternative
explanation for her termination. See Johnson v. District of
Columbia, 935 A.2d 1113, 1118 (D.C. 2007) (“Even
assuming that the appellants had proffered [a prima facie
case], the summary judgment motion would have been
meritorious nonetheless if [plaintiff] could not counter the
[defendant’s] explanation that [plaintiff] would have been
suspended anyway, for an unrelated, legitimate reason.”).
Lee’s explanation is all the more persuasive since Coleman
identifies no specific disclosure for which the Department
sought to retaliate. Finally, Lee explained that if Coleman was
found fit for duty after the evaluation, she would be returned
“to commanding a frontline company,” suggesting the
evaluation was ordered for safety reasons, not as retaliation
for any protected disclosure. J.A. 457–58.
In the face of overwhelming proof that Lee ordered a
fitness evaluation to assess whether Coleman was a danger to
herself, the public, or other firefighters, the court claims
Coleman’s meager cache of contrary evidence rebuts the
Department’s proffered rationale. A psychologist with
significant experience in conducting fitness-for-duty
examinations reviewed the communications at issue and
concluded that there was no “logical, psychological or
medical basis” for ordering the evaluation. J.A. 579. The
court claims that, to the extent the “validity of the
Department’s rationale turns on whether its explanation is
credited over that of Coleman’s expert,” such a “credibility
8
judgment is for a jury to make, not a court at summary
judgement.” Maj. Op. at 24.
That is not the law of this circuit. What is occurring is not
simply a credibility determination; it is, just as with every
request for summary judgment, consideration of the entire
record in deciding whether a reasonable jury could conclude
that the plaintiff suffered retaliation. See Jones, 557 F.3d at
679 (a court must consider whether the evidence “either
separately or in combination provides sufficient evidence for
a reasonable jury to infer retaliation”). We have previously
noted that not every plaintiff “who creates a genuine issue of
material fact” as to pretext “will always be deemed to have
presented enough evidence to survive summary judgment.”
Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1290 (D.C.
Cir. 1998) (emphasis in original). We instead made clear that
a “court must consider all the evidence in its full context in
deciding whether the plaintiff has met [her] burden of
showing that a reasonable jury could conclude that [s]he had
suffered discrimination and accordingly summary judgment is
inappropriate.” Id. Indeed, the Supreme Court has expressly
held that an “employer would be entitled to judgment as a
matter of law if the record conclusively revealed some other,
nondiscriminatory reason for the employer’s decision. The
court dismisses Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133 (2000), but if the same framework governs
discrimination and retaliation cases, then abundant,
uncontroverted, independent evidence of an alternative, non-
retaliatory explanation for the employer’s action should be
dispositive no matter what evidentiary standard applies. If, as
the court here seems to hold, overcoming summary judgment
merely required an opposing evaluation from a plaintiff’s
expert—thus creating only a weak issue of fact on whether the
employer’s reason was untrue—then summary judgment
could never serve the role of weeding out cases with
9
insufficient proof. See Vatel v. Alliance of Auto. Mfrs., 627
F.3d 1245, 1249 (D.C. Cir. 2011) (“Vatel’s submission thus
boils down to the proposition that discrimination plaintiffs
should receive jury trials as a matter of course, on the theory
that the question whether the defendant was motivated by
racial or gender bias is always a question of fact for a jury.
But that is not the way the law has developed.”).
More importantly, even if a jury were to credit
Coleman’s expert, it would be insufficient to rebut the
reasonability of Lee’s belief that if Coleman’s general
disobedience to the chain of command, augmented by the tone
and volume of her communications, was left unaddressed, it
might endanger the public safety. See Brady, 520 F.3d at 496
(“The question is not whether the underlying . . . incident
occurred; rather, the issue is whether the employer honestly
and reasonably believed that the underlying . . . incident
occurred.”) (emphasis in original); George v. Leavitt, 407
F.3d 405, 415 (D.C. Cir. 2005) (“[A]n employer’s action may
be justified by a reasonable belief in the validity of the reason
given even though that reason may turn out to be false.”);
Fischbach v. District of Columbia Dep’t of Corr., 86 F.3d
1180, 1183 (D.C. Cir. 1996) (“Once the employer has
articulated a non-discriminatory explanation for its action . . .
the issue is not the correctness or desirability of the reasons
offered but whether the employer honestly believes in the
reasons it offers.”). In a close case, a plaintiff’s expert might
create a dispute sufficient to preclude summary judgment. But
here the communications on their face created great cause for
concern, as did Coleman’s repeated refusal to follow the chain
of command; the supervisor began planning for an evaluation
before the protected disclosure occurred; and the supervisor
explained that if Coleman passed the fitness-for-duty exam,
she would return to active service. Thus, only through the
other side of the looking glass has Coleman’s evidence
10
rebutted the Department’s “proffered rationale.” Maj. Op. at
22.
To say Coleman’s rebuttal is weak overstates the case.
Although Coleman’s expert indicated he reviewed numerous
affidavits and the testimony before the Fire Department Trial
Board, his opinion focuses only on the import of Captain
Coleman’s comments and neglects entirely the history of
conflict, dissension, and disobedience detailed in those
documents. 1 More importantly, how can an expert’s after-
the-fact review of Coleman’s written communications rebut
Lee’s contemporaneous observations? Indeed, Dr. Hugonnet,
who was hired by Coleman, performed his assessment a year
after Brian Lee requested the evaluation. And what relevance
does the testimony of Coleman’s subordinates have? See Maj.
Op. at 30. Neither was her superior or exercised supervisory
1
I agree with the court that the Department’s lawyering could have
been better. But the Department did raise Coleman’s lengthy
history of conflict before the district court. See Mot. for Summ. J. at
2–16, 26–29, 36–37, Coleman v. District of Columbia, No. 1:09-cv-
50 (RCL) (Aug. 8, 2012), ECF No. 131. And it did so again on
appeal. See Defs. Br. at 40 (raising “legitimate grounds for ordering
the evaluation,” which included that Ms. Coleman “was not
heeding direction from Assistant Chief Brian Lee or other
superiors, refused to take a required EEO training, and repeatedly
attempted to cite her superiors, as well as her subordinates, for
discipline. (See supra at 8–13)”); id at 8–13 (describing in detail
Coleman’s history of conflict, dissension, and disobedience).
Furthermore, the record presents this history from many disparate
perspectives—all confirming Brian Lee’s explanations for ordering
the fitness evaluation. J.A. 288, 306. The court ignores this
evidence because counsel’s argument is too skeletal. But see
Reeves, 530 U.S. at 148 (“[A]n employer would be entitled to
judgment as a matter of law if the record conclusively revealed
some other, nondiscriminatory reason for the employer’s
decision[ ].”).
11
authority, and there is no indication either one was privy to
Coleman’s conflict-riddled employment history or the
numerous disturbing communications between Coleman and
her superiors. Thus, Coleman’s evidence is of extremely
limited relevance, if any. See DeJarnette v. Corning Inc., 133
F.3d 293, 299 (4th Cir. 1998). Moreover, these offers of proof
attempt to answer the wrong question. That an expert, or
Coleman’s coworkers, did not believe Coleman’s conduct
justified an evaluation does not answer the question of
whether Lee honestly thought an exam was warranted. It is
well settled that it is the perception of the decision maker that
is relevant. See Vatel, 627 F.3d at 1247. Here, Lee’s
assessment was entirely consistent with the record. Coleman
was an unrepentant outlaw, who had made a number of
disjointed communications, failed to follow any orders or
directives that did not suit her, and apparently believed all her
co-workers were out to get her. These facts are not disputed. 2
As we have said many times, “[i]f the employer’s stated belief
about the underlying facts is reasonable in light of the
evidence . . . there ordinarily is no basis for permitting a jury
to conclude that the employer is lying about the underlying
facts.” Brady, 520 F.3d at 495; see also Carney v. American
University, 151 F.3d 1090, 1094 (D.C. Cir. 1998) (holding
that plaintiff’s “factual proffer requires too much speculation
to create a genuine issue of fact about [defendant’s]
motivations”).
In addition, Lee’s assessment was consistent with that of
Dr. Smith-Jeffries, the doctor assigned by the Fire Department
to evaluate Coleman. After Dr. Smith-Jeffries received the
2
Contrary to what the court claims, Lee’s justification for ordering
the evaluation based on Coleman’s “history of dissension” was
never controverted by Coleman’s expert, who addressed only
Coleman’s histrionic comments, or by her colleagues’ positive
views of her work performance.
12
request for an examination, the doctor phoned Brian Lee and
considered his rationale. Based on the information provided,
Dr. Smith-Jeffries had questions about Coleman’s
“competency” and “whether there might be some paranoia.”
J.A. 513. The questions were troubling enough that, although
Dr. Smith-Jeffries did not have sufficient information to
conclude Coleman was unfit, she concluded a “full
assessment” was warranted. J.A. 513–14. Dr. Hugonnet
dismisses this contrary evidence and the court ignores it, but it
is the finishing blow to any claim that a reasonable jury could
find the testimony of Coleman’s expert or coworkers
adequately rebuts the Department’s legitimate reason for
ordering the fitness evaluation. See Maj. Op. at 25. Coleman
should not be able to parlay her insubordinate refusal to
cooperate into proof the Department acted with bad motives.
In the end, the only inference of retaliation here is the
temporal proximity between the July 23rd protected
disclosure and Lee’s ordering of the fitness-for-duty exam on
July 25th. But “an inference of retaliation cannot rest solely
on temporal proximity (even if it is established) where the
opportunity for retaliation conflicts with the opponent’s
explicit evidence of an innocent explanation of the event.”
Freeman v. District of Columbia, 60 A.3d 1131, 1145 (D.C.
2012). Lee’s innocent explanation for ordering the exam can
be found in an email he sent a week before Coleman made the
protected disclosure. Lee stated that he needed “some
immediate help” in ordering an evaluation because Coleman
had broken the “chain of command” and her reports were
“becoming more alarming.” J.A. 288. Coleman did nothing to
rebut this explanation. No reasonable jury could believe the
protected disclosure was a “contributing factor” in Lee
ordering Coleman to undergo an evaluation. Crawford, 891
A.2d at 219.
13
Had the court’s result occurred in another context it
would be cause enough for alarm given the many ways it runs
counter to our precedents. That it occurred in the context of a
fire department makes it doubly distressing. The standard the
court adopts will lead supervisors in police and fire
departments to hesitate in ordering evaluations for employees
working in dangerous jobs (where evaluations are needed
most) if the employee claims to have made a protected
disclosure. Courts ordinarily defer to supervisors in
workplaces where employees must follow orders and respond
to stressful situations involving public safety. E.g. Coffman v.
Indianapolis Fire Dep’t, 578 F.3d 559, 565 (7th Cir. 2009)
(fire department); Conroy v. New York State Dep’t of Corr.
Servs., 333 F.3d 88, 99–100 (2d Cir. 2003) (correctional
facility); Brownfield v. City of Yakima, 612 F.3d 1140, 1146–
47 (9th Cir. 2010) (police department); Thomas v. Corwin,
483 F.3d 516, 527 (8th Cir. 2007) (juvenile unit of police
department). “In these ‘public safety’ workplaces, an
employer may be justified in requesting a psychological exam
on slighter evidence than in other types of workplaces
because employees are in positions where they can do
tremendous harm if they act irrationally, and thus they pose a
greater threat to themselves and others.” Kroll v. White Lake
Ambulance Auth., 763 F.3d 619, 626 (6th Cir. 2014); see also
Watson v. City of Miami Beach, 177 F.3d 932, 935 (11th Cir.
1999) (“In any case where a police department reasonably
perceives an officer to be even mildly paranoid, hostile, or
oppositional, a fitness for duty examination is job related and
consistent with business necessity.”). If, on this record, the
court finds the clear and convincing standard is still not met,
the real consequence is that every evaluation order following
any purportedly protected disclosure will precipitate a jury
trial. Such a result is not only contrary to our precedent but to
the Supreme Court’s as well. See Reeves, 530 U.S. at 148
(“[A]n employer would be entitled to judgment as a matter of
14
law . . . if the plaintiff created only a weak issue of fact as to
whether the employer’s reason was untrue and there was
abundant and uncontroverted independent evidence that no
discrimination had occurred.”).
The great irony of today’s decision is that the
Whistleblower Protection Act was designed to protect those
who might “risk their own personal job security for the
benefit of the public.” Williams v. District of Columbia, 9
A.3d 484, 490 (D.C. 2010). Our decision instead shields Ms.
Coleman’s insubordinate conduct and demands a jury trial for
a completely understandable and reasonable order requiring
Coleman to undergo an evaluation to see whether she
remained fit for duty—an order which itself was likely
intended to protect the public safety. I respectfully dissent.