Christina Williams v. Robert Johnson ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 22, 2014 Decided January 16, 2015
No. 12-7074
CHRISTINA CONYERS WILLIAMS,
APPELLEE
v.
ROBERT JOHNSON, INDIVIDUALLY AND AS SENIOR DEPUTY
DIRECTOR, ADDICTION PREVENTION AND RECOVERY
ADMINISTRATION, DISTRICT OF COLUMBIA DEPARTMENT OF
HEALTH, ET AL.,
APPELLANTS
TORI WHITNEY AND DAVID A. CATANIA,
INTERVENORS
Consolidated with 12-7081
Appeals from the United States District Court
for the District of Columbia
(No. 1:06-cv-02076)
2
Holly M. Johnson, Assistant Attorney General, Office of
the Attorney General for the District of Columbia, argued the
cause for appellants. With her on the briefs were Irvin B.
Nathan, Attorney General, Todd S. Kim, Solicitor General,
and Donna M. Murasky, Deputy Solicitor General, at the time
the briefs were filed. Loren L. AliKhan, Deputy Solicitor
General, and Sarah L. Knapp, Assistant Attorney General,
entered appearances.
V. David Zvenyach argued the cause for intervenor David
Catania. With him on the brief was John Hoellen.
John F. Karl Jr. argued the cause for appellee/cross-
appellant. With him on the briefs was Kristen Grim Hughes.
Brian K. Flowers entered an appearance.
Les Alderman and Alan R. Kabat were on the brief for
amicus curiae Metropolitan Washington Employment
Lawyers Association in support of appellee/cross-appellant.
Before: KAVANAUGH, Circuit Judge, and EDWARDS and
GINSBURG, Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge
GINSBURG.
GINSBURG, Senior Circuit Judge: When Christina
Conyers Williams, an employee in the D.C. Department of
Health, Addiction Prevention and Recovery Administration
(APRA), testified before the D.C. Council, she revealed that
her department‟s new software program to keep track of client
data was not currently useful and that its roll out was behind
schedule. She knowingly contradicted the overly optimistic
answers her supervisors had submitted to the Council in
advance of the hearing. Immediately following this incident
3
and for some months thereafter, Williams was harassed by her
supervisors, causing her to sue the District of Columbia for
retaliation under the D.C. Whistleblower Protection Act
(WPA)* and, eventually, to resign. At trial, the jury saw a
video of the 2006 Council meeting and heard evidence about
the way Williams‟s supervisors treated her afterward. They
returned a verdict finding that Williams‟s Council testimony
exposed information serious enough to warrant protection
under the WPA and awarded her $300,000 in damages, in part
for the salary cut she took when she resigned her position
with APRA and took a new position with the federal
government.
The District asks us to overturn the jury‟s verdict,
arguing both that Williams‟s disclosures are not serious
enough to warrant protection under the WPA and that the
evidence does not support a finding that her working
conditions were so oppressive as to give her no choice but to
resign. The District additionally argues Williams‟s claim for
back and front pay is barred because she failed to give the
District timely notice that she would argue her resignation
was a constructive discharge, which notice was required by
statute when she resigned but not when she amended her
complaint to include claims for back and front pay.
We conclude the jury‟s verdict finds adequate support in
the record and we affirm the district court‟s holding that the
notice provision is a procedural requirement that, having been
made inapplicable to the WPA, does not limit the claims a
plaintiff may bring against the District under that statute,
*
Williams additionally made claims under the First Amendment,
which claims gave the district court supplemental jurisdiction over
her D.C. law claims. The district court has since dismissed her
constitutional claims.
4
regardless whether the underlying conduct occurred while the
notice provision was in effect.
I. Background
In April 2005 Williams was tasked by APRA with
overseeing the implementation of ACIS, a new client
information system being developed by a software contractor
that was supposed to capture demographic and client
assessment data, similar to a system of electronic medical
records. Phase 1, in which the program was installed at a
single hospital and collected client demographic information,
was completed in June 2005, but there was no subsequent
progress toward Phase 2, which was supposed to include
bringing more hospitals and other facilities online, adding
client medical assessments, and measuring them against
national outcome standards. The deadline set for Phase 2 was
August 2005. The third and final phase was to be completed
and the contract closed out by November 2006.
In February 2006, APRA was going to have to answer for
its progress, or lack thereof, on the project at a routine
oversight hearing before the D.C. Council‟s Committee on
Health, chaired by Councilman David Catania. In
preparation, Williams drafted written answers to the Council‟s
questions and submitted them to her supervisor, Robert
Johnson. According to Williams‟s trial testimony, the
answers ultimately submitted to the Council were not as she
had drafted them and were materially misleading. Although
she had written that ACIS at that time could collect only
demographic data, the answers that APRA submitted to the
Council indicated it could collect client assessment data to be
measured against national outcome standards; similarly,
although she had written that the system would not be fully
5
rolled out until November 2006, the submitted answers stated
that would happen in July 2006.
At the hearing, when Chairman Catania asked Johnson
about ACIS, Johnson deferred to Williams, putting the altered
answers in front of her and saying “go for it.” According to
Williams‟s trial testimony, she saw for the first time when she
sat down to testify that her answers had been changed but she
understood Johnson wanted her to stick to the script, so to
speak. Williams instead testified truthfully, telling the
Council that ACIS had not yet been implemented at all the
planned facilities and could collect only demographic data.
Chairman Catania expressed frustration with these responses,
concluding that the system was essentially useless and that
without assessment data “we‟re just burning money.”
Williams also testified that the expected date for collecting
assessment data was November 2006, and although Catania
noted the discrepancy with the official estimate of July 2006,
he approved the extension. Finally, noting the program was
way over budget, the Chairman warned “this smells,” and
threatened a False Claims Act investigation into “what looks
like a competitively bid contract,” insinuating wrongdoing,
perhaps on the part of APRA in awarding the contract. At
trial the jury saw a videotape of this entire exchange.
The day after the hearing, Johnson held a staff meeting at
APRA in which he expressed concern over the threatened
investigation and blamed it on Williams‟s testimony;
according to Williams, Johnson said she had “made APRA
look like „crooks,‟ and made it appear the agency was doing
something wrong.” According to trial testimony by both
Williams and other witnesses, Johnson and his chief of staff
harassed Williams from this time forward by, among other
things, treating her with open hostility, subjecting her to
impossible demands, and threatening to terminate her. In
6
March 2006, one month after the hearing, Williams met
privately with Councilman Catania to discuss the problems
with ACIS and the harassment she was experiencing. After
this meeting, Williams testified, the harassment “took on a
different spin;” eventually Johnson stripped her of all
responsibilities, staff, and resources.
Beginning in August 2006, Williams sent the D.C. Office
of Risk Management several letters alleging harassment. In
October she began looking for a new job. At the beginning of
December, she filed this lawsuit, alleging retaliation for her
disclosures both at the Council hearing and at her private
meeting with Councilman Catania. The trial court granted the
District‟s motion for summary judgment with regard to her
claims concerning the private meeting for want of evidence
that Williams‟s supervisors were aware of that meeting.
Williams v. Johnson, 701 F. Supp. 2d 1, 16-19 (D.D.C. 2010).
At the end of December 2006, Williams was informed
that Johnson would not be returning in the new mayor‟s
administration. Her new supervisor, Linda Fisher, started in
January 2007 and Williams immediately asked Fisher to
restore her previous responsibilities. Although Fisher never
demonstrated any animus toward Williams, she did eliminate
Williams‟s position, transfer her to a different group, and
from February through June 2007 did not give her any
significant work to do. In June 2007, Williams finally
resigned because, she testified, “I had no job. I had no
duties.” She took a position with the U.S. Public Health
Service, accepting a lower salary and less responsibility than
in her prior position.
In August 2010, more than three years after she had
resigned, Williams amended her complaint to claim the
difference in pay “she would have earned had she not been
7
constructively discharged.” The District moved for summary
judgment on Williams‟s constructive discharge claim, arguing
she had not given the District notice of that claim, as required
by D.C. Code § 12-309, within six months of the alleged
retaliation. The court denied this motion on the ground that
the D.C. Council had since dropped compliance with § 12-
309 as a requirement for making claims under the WPA and
that this amendment applied retroactively to relieve Williams
of the duty to notify. Williams v. Johnson, 794 F. Supp. 2d 22
(D.D.C. 2011).
When the case went to trial, Williams pressed eleven
claims of retaliation under the WPA. The court dismissed one
and the jury found for Williams on the other ten, awarding her
$300,000 in damages. The jury returned a special verdict
finding Williams had made a “protected disclosure” before
the D.C. Council and that, in view of her treatment leading up
to and at the time she quit, her resignation amounted to a
constructive discharge. The District moved for judgment as a
matter of law or for a new trial, arguing the evidence did not
support either of the jury‟s findings. The district court denied
that motion, Williams v. Johnson, 870 F. Supp. 2d 158
(D.D.C. 2012), the District appealed, and Williams filed a
conditional cross-appeal.
II. Analysis
When an appellant challenges a district court‟s denial of a
motion for judgment as a matter of law filed after a jury
verdict is entered, as does the District here, our review is
“very limited.” Ferebee v. Chevron Chem. Co., 736 F.2d
1529, 1534 (D.C. Cir. 1984). In contrast, we review de novo
the purely legal question whether Williams‟s claim for
constructive discharge was barred by the requirement of
timely notice. See Whatley v. District of Columbia, 447 F.3d
8
814, 819-20 (D.C. Cir. 2006). At the same time, however, we
defer to the District of Columbia Court of Appeals‟
interpretation of the D.C. Code. See United States v. Edmond,
924 F.2d 261, 264 (D.C. Cir. 1991).
Williams cross-appeals in the event we vacate the verdict,
seeking to reinstate her claims based upon the private meeting
with Councilman Catania. Because we affirm the judgment
of the district court, we do not reach Williams‟s cross-appeal.
A. Sufficiency of the Evidence
The jury performs its quintessential function when it
decides the magnitude of a misdeed. Cf. Dellums v. Powell,
566 F.2d 167, 207 (D.C. Cir. 1977) (Leventhal, J.,
concurring) (“It is ... a traditional function of the jury to make
judgments as to the reasonableness of an actor‟s conduct”).
In this case, the jury was charged with deciding the
significance of the agency misconduct Williams disclosed to
the Council as well as the degree of mistreatment she endured
until she resigned. Because the jury was correctly instructed
about the requirements of the law, the District argues only
that the evidence presented at trial did not support the jury‟s
conclusion that the District‟s misconduct was sufficiently
serious to trigger liability. As the District well knows,
however, we will not overturn a jury verdict “unless the
evidence and all reasonable inferences that can be drawn
therefrom are so one-sided that reasonable men and women
could not disagree.” Scott v. District of Columbia, 101 F.3d
748, 753 (D.C. Cir. 1996).
1. Protected disclosure
We have often noted in retaliation cases that whether the
employee plaintiff engaged in a protected activity is a “fact
9
specific inquiry.” See, e.g., Shekoyan v. Sibley Int'l, 409 F.3d
414, 423 (D.C. Cir. 2005) (applying whistleblower provision
of the False Claims Act). The fact specific question here is
whether Williams‟s disclosure to the Council is the kind of
revelation the WPA is meant to protect. The D.C. Court of
Appeals has held that a disclosure is protected by the WPA if
it reveals “such serious errors by the agency that a conclusion
the agency erred is not debatable among reasonable people.”
Wilburn v. District of Columbia, 957 A.2d 921, 925 (2008)
(quoting White v. Air Force, 391 F.3d 1377, 1382 (Fed. Cir.
2004)). Pursuant to the statutory definition of “protected
disclosure,” that agency error can take any of several forms:
(A) Gross mismanagement;
(B) Gross misuse or waste of public resources or funds;
(C) Abuse of authority in connection with the
administration of a public program or the execution
of a public contract;
(D) A violation of a federal, state, or local law, rule, or
regulation, or of a term of a contract between the
District government and a District government
contractor which is not of a merely technical or
minimal nature; or
(E) A substantial and specific danger to the public health
and safety.
D.C. Code § 1-615.52(a)(6).
The District first argues that Williams‟s disclosure about
the failures of ACIS is like disclosures the D.C. Court of
Appeals has previously held insufficient to qualify as “the
type of gross abuse or violations described in the statute.”
Wilburn, 957 A.2d at 926.
10
The D.C. Court of Appeals held in Wilburn that an
employee did not make a protected disclosure under § 1-
615.52(a)(6) when the “gist” of her revelation was that a
government contractor‟s work was sometimes unsatisfactory
and it had “just barely met the contractual requirements.” Id.
The court also cited with approval a Federal Circuit decision
holding that an employee did not disclose a gross waste of
funds by revealing that the Army paid for a scientist to travel
abroad for a meeting even though it was not necessary to the
Army‟s mission. Id. at 925 (citing Ward v. Merit Sys. Prot.
Bd., 981 F.2d 521, 523-28 (Fed. Cir. 1992)).
The District also calls our attention to a decision that
issued after oral argument in the present case: District of
Columbia v. Poindexter, Nos. 12-CV-1477 & 13-CV-82 (D.C.
Dec. 11, 2014). In that case, the Court of Appeals overturned
a WPA jury verdict, holding that the plaintiff did not reveal
gross mismanagement when she disclosed that her supervisor
required some employees to record their time but had a more
lax policy with others. The court announced that the test for
“gross mismanagement” is that the “action or inaction ...
creates a substantial risk of significant adverse impact on the
agency‟s ability to accomplish its mission” and it viewed the
plaintiff‟s disclosure as falling short because there was a
“difference of opinion” whether certain employees should
record their time. Id., slip op. at 11-13 (citation omitted).
In each of these cases, the employee‟s disclosure was
minor relative to the scope of the agency‟s work. In the
present case, however, there is surely room for debate
whether Williams‟s disclosure about the failures of ACIS is
significant enough to fall within any of several types of
disclosures protected under § 1-615.52(a)(6); therefore, the
district court correctly let the jury decide the matter.
11
Implementing ACIS was an important objective for
APRA and there could be no difference of opinion that the
project was off course. APRA‟s expenditures on ACIS were
significant and, in Councilman Catania‟s words, Williams‟s
disclosure showed the agency was “just burning money”
given that the system could only report gender, sex, and race.
This case is not like Wilburn, in which the contractual
requirements had been met, if just barely. To the contrary, in
discussing the contractor‟s performance, Catania questioned
whether the software vendor had violated the False Claims
Act and remarked “this smells ... three-and-a-half million
dollars for some simple data collection, this shouldn‟t take
two years, this should take 20 minutes and it sure shouldn‟t
cost three million dollars.” Although the Councilman‟s
opinion is not dispositive, he was familiar with the goals of
the project and had no apparent reason to overstate the
problems Williams disclosed during the Council meeting.
Therefore, the jury could reasonably infer from his reaction to
the facts Williams disclosed that APRA‟s oversight of the
project constituted “gross mismanagement” or a “gross ...
waste of public resources.”
Even if APRA‟s mismanagement of ACIS was
insufficiently serious to qualify Williams‟s statements for
protection under the WPA, those statements may reasonably
have been viewed by the jury as disclosing an “abuse of
authority” or a “violation of ... law” within the ambit of § 1-
615.52(a)(6). At trial, Williams testified that just before she
testified to the Council, she saw her answers to the Council‟s
questions had been changed, realized her supervisor wanted
her to give the incorrect answers, and proceeded instead to
give what she knew were the truthful answers.
The District argues Williams did not make clear which
changes she saw and therefore the jury would “have to
12
speculate to find that Williams even knew that she was
disclosing APRA‟s „misstatement.‟” This argument is too
little too late. The District had the opportunity on cross-
examination to clarify the extent to which Williams realized
her answers had been changed, but it did not do so then and
therefore left open to the jury the reasonable inference that
Williams intentionally exposed APRA‟s effort to mislead the
Council. Moreover, we think misleading the Council must be
either an “abuse of authority” or a “violation of ... law” within
the meaning of the statute defining “protected disclosure”
because the express purpose of the WPA is to ensure
employees are free to report, among other things, “fraud,
abuse of authority,” and “dishonesty.” See D.C. Code § 1-
615.51.
Finally, the District argues Williams did not present
evidence of her subjective belief that her Council testimony
revealed serious misconduct. Although it is true that
Williams is protected by the WPA only if she “reasonably
believed” she was revealing information demonstrating the
serious misconduct described in § 1-615.52(a)(6), see
Freeman v. District of Columbia, 60 A.3d 1131, 1141 (D.C.
2012), we find no support in the case law for the proposition
that she needed to present separate evidence of her subjective
belief. That a reasonable juror “with knowledge of the
essential facts known to and readily ascertainable by the
employee,” id. at 1151 (citation omitted), could find that the
revelations were objectively serious is sufficient to support a
jury‟s finding that Williams believed them to be serious when
she made them.
Only when the disclosing party was unaware of a fact
critical to the significance of the information disclosed has the
D.C. Court of Appeals held he lacked the requisite subjective
belief. That was the situation in Freeman: the employee
13
disclosed conduct he did not know was illegal and therefore,
the court held, he was not protected by the WPA. Id. at 1143.
We could find no case, however, in which the D.C. Court of
Appeals has required the disclosing party to offer evidence
that he appreciated the gravity of something that, knowing all
the facts he knew, a reasonable person could determine was
objectively serious. The District points to Zirkle v. District of
Columbia, 830 A.2d 1250 (D.C. 2003), but that case is
unhelpful. There the court considered the disclosing party‟s
subjective understanding of the gravity of the conduct only
because it was not objectively serious; he thought the conduct
he disclosed was illegal but it was not. Id. at 1259-60.
In sum, before the district court gave the jury the special
verdict form with the question “Do you find that Plaintiff‟s
testimony before the District of Columbia Council in
February 2006 included or constituted a protected
disclosure?” it had been presented with sufficient evidence to
answer in the affirmative.
2. Constructive discharge
“Whether working conditions are so intolerable that a
reasonable person is forced to resign,” like the question
whether a disclosure is sufficiently serious to warrant
protection, “is a question for the trier of fact.” Arthur Young
& Co. v. Sutherland, 631 A.2d 354, 362 (D.C. 1993) (citing
Simpson v. Fed. Mine Safety & Health Review Comm’n, 842
F.2d 453, 463 (D.C. Cir. 1988)).
First, the District argues the jury could not reasonably
conclude that harassment by Williams‟s former supervisors
justified her resigning six months after they had left. That,
however, was not what the jury was asked to determine; to the
contrary, it was instructed to find Williams was constructively
14
discharged only if her working conditions were intolerable “at
the time she left her position.” The earlier harassment was
relevant to the jury‟s inquiry only insofar as it may have
created an intolerable situation that persisted until Williams
finally resigned.
Second, the District argues the evidence does not support
the jury in concluding Williams‟s working conditions at the
time of her resignation were truly “intolerable.” The D.C.
Court of Appeals has held evidence of discriminatory actions
that “essentially locked [the employee] into a position” that
did not allow for career advancement is sufficient to support a
finding of constructive discharge. Id. at 362-63 (citing Clark
v. Marsh, 665 F.2d 1168, 1174 (D.C. Cir. 1981)). Williams
testified that, despite her request, none of the job
responsibilities her former supervisors had taken away from
her was ever restored; indeed, her new supervisor eliminated
her position and, although Williams was nominally put in a
new position, her new supervisor had not found any work for
Williams to do in more than five months of asking. In other
words, Williams presented evidence that the damage her
harassing supervisors had done had a lasting effect and that
she was essentially unable to work, let alone advance, in her
job. This scenario is far more dire than the one in Aliotta v.
Bair, 614 F.3d 556 (D.C. Cir. 2010), upon which the District
relies. There, the employee‟s prospects were merely
uncertain because the employer had threatened a reduction-in-
force layoff. Id. at 566-67. Under the circumstances of this
case, the district court was correct to let the jury resolve
whether Williams had no reasonable choice but to resign
when she did.
15
B. Requirement of Notice*
Finally, the District argues that Williams should not have
been able to bring her claim for constructive discharge
because she did not satisfy the requirement of timely notice
codified at § 12-309 of the D.C. Code:
An action may not be maintained against the District of
Columbia ... unless, within six months after the injury or
damage was sustained, the claimant ... 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.
At the time of Williams‟s resignation in June 2007, the
provision of the WPA creating a private right of action for
damages included a one-year statute of limitations as well as
the following requirement: “A civil action brought pursuant to
this section shall comply with the notice requirements of § 12-
309.” D.C. Code § 1-615.54(a) (2001). In March 2010, while
the parties in this case were still filing pretrial motions, the
Council amended the WPA to extend the statute of limitations
to three years and to abolish the notice requirement. D.C.
Code § 1-615.54(a)(2)-(3) (“Section 12-309 shall not apply to
any civil action brought under this section”). The question
*
We note that the District raised the argument that the notice
requirement applied to Williams‟s constructive discharge at the
summary judgment stage but not again after the verdict. Because
this is a purely legal issue, we have jurisdiction to review it even
though an order denying summary judgment is not usually a final
decision subject to review. Feld v. Feld, 688 F.3d 779, 783 (D.C.
Cir. 2012) (“We conclude that we have jurisdiction to hear
[appellant‟s] legal argument because we hold a Rule 50 motion is
not required to preserve for appeal a purely legal claim rejected at
summary judgment”).
16
therefore arises whether the 2010 amendment applies to the
claim for constructive discharge, which Williams filed after
the notice requirement was removed but arose while that
requirement was still in effect.
The D.C. Court of Appeals has instructed that
amendments to statutory procedural requirements “are
generally held to apply to pending cases,” but that a
requirement is not merely procedural if applying the
amendment would “impair vested rights.” Montgomery v.
District of Columbia, 598 A.2d 162, 166 (1991); see also
Bank of Am., N.A. v. Griffin, 2 A.3d 1070, 1075-76 (D.C.
2010) (holding new requirement to file lis pendens notice was
not “clearly procedural” because parties who had perfected
their claims under the prior procedure for securing property
had vested rights).
The District argues the notice requirement of § 12-309 is
not merely procedural even though the D.C. Court of Appeals
held a similar notice requirement was procedural in Lacek v.
Washington Hospital Center Corp., 978 A.2d 1194 (2009). In
that case, the Council had passed legislation requiring
plaintiffs to provide notice of their claims to defendant
medical providers, but the Court of Appeals deemed the
provision “procedural” rather than substantive and applied it
retroactively to require notice for a claim arising from
conduct that had occurred before the notice requirement was
added. Id. at 1197-98. The District attempts to distinguish
the notice requirement in the instant case on the ground that it
provided notice to the Government, not to a private defendant.
According to the District, once the six-month window for
providing notice had passed, the District had a vested right in
its sovereign immunity from Williams‟s claim.
17
To be sure, where the notice requirement of § 12-309
applies, the D.C. Court of Appeals has instructed that
“compliance with [it] is a condition precedent which, if not
met, will prevent the destruction of sovereign immunity,”
Tucci v. District of Columbia, 956 A.2d 684, 695 (2008)
(quotation marks and citation omitted). The District here
argues that consequently, because its sovereign immunity is a
substantive right, the amendment cannot be applied
retroactively to its detriment. The District‟s reasoning,
however, would obliterate the distinction between substance
and procedure. Removing a condition precedent (here,
notice) to the waiver of a substantive right (here, sovereign
immunity) is not the same as abridging the substantive right
itself; all procedural requirements are ultimately conditions
precedent to some substantive right, else they would be
requirements without consequence. As Williams points out,
the Court of Appeals in Tucci was clear in stating the
District‟s waiver of sovereign immunity is not contained in
§ 12-309; rather, the waiver “must be found in some other
source.” 956 A.2d at 696. Therefore, removing the § 12-309
requirement alters not the District‟s waiver of sovereign
immunity but only the steps necessary for a plaintiff to invoke
the waiver.
That the District was at one time during the pendency of
this suit entitled to assert sovereign immunity does not,
contrary to the District‟s argument, mean that entitlement
vested. The District cites several cases in which a claim was
time-barred and a court held it could not be revived even
though the legislature had subsequently extended the statute
of limitations. Those cases are crucially different from this
one because the very purpose of a statute of limitations is to
assure defendants that after a time certain they are free from
suit, an assurance that would be meaningless if a subsequent
amendment could at any time revive the claim. In the
18
statutory scheme before us, there was both a statute of
limitations and a notice-of-claims requirement; obviously,
therefore, the District‟s notice requirement was neither needed
nor intended to give the District security in being free from
suit. Cf. Brown v. United States, 742 F.2d 1498, 1505-06
(D.C. Cir. 1984) (en banc) (reasoning that § 12-309 “has a
purpose that is quite distinct” from “statutes of limitations,
tolling policies, and survival rules, that serve the exclusive
purpose of defining that point where the right to maintain a
cause of action ends”).
Rather, we think abolishing § 12-309 as a condition
precedent for a WPA claim means the Council was willing to
submit the District to suit by whistleblowers without retaining
the litigation advantage of early notice. See id. at 1502
(determining the purpose of § 12-309 is “to provide the
District an opportunity to investigate claims when all
evidence is still fresh, to allow the District to seek out early
settlement of meritorious claims, and generally to protect the
District's revenues from unreasonable suits”). Although the
District may have been better able to gather evidence or to
settle the case on favorable terms if it had been on earlier
notice of Williams‟s claim for constructive discharge, those
advantages bear upon the process of litigation, not upon the
District‟s or Williams‟s substantive rights under the WPA.
The Council‟s determination that the procedural costs in a
case such as this are an acceptable price to pay for the
increased protection of whistleblowers divested the District of
its former right to early notice.
Accordingly, we think Lacek controls and the instant
notice-of-claims requirement is procedural. Williams,
therefore, benefits from the amendment removing the
requirement and is not barred from bringing her constructive
19
discharge claim even though she did not formally notify the
District of that claim within six months of resigning.
III. Conclusion
For the reasons stated above, we agree with the district
court that Williams could bring her constructive discharge
claim and that the jury verdict was supported by sufficient
evidence of a protected disclosure and of a constructive
discharge. Accordingly, there is no need to reach Williams‟s
cross-appeal. The judgment of the district court entering the
verdict is
Affirmed.