Johnson v. District of Columbia ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JANNEASE JOHNSON, :
:
Plaintiff, : Civil Action No.: 20-2944 (RC)
:
v. : Re Document No.: 6, 10, 11
:
DISTRICT OF COLUMBIA, et al., :
:
Defendants. :
MEMORANDUM OPINION
DENYING DEFENDANTS’ PARTIAL MOTION TO DISMISS AS MOOT; GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION TO DISMISS; DENYING PLAINTIFF’S MOTION FOR
PARTIAL SUMMARY JUDGMENT
I. INTRODUCTION
This case concerns Plaintiff Jannease Johnson’s allegations against Defendants the
District of Columbia, Director of the D.C. Department of Corrections (“DOC”) Quincy Booth,
and Deputy Director of Operations of the DOC Wanda Patten, that she was demoted, re-
assigned, and fired from positions in the DOC due to disclosures and speech of hers concerning
DOC’s handling of the COVID-19 pandemic. Plaintiff alleges that she was retaliated against in
violation of the D.C. Whistleblower Protection Act, D.C. Code §§ 1-615.51 et seq. (“DCWPA”),
and the First Amendment under 42 U.S.C. § 1983. For the reasons set forth below, the Court
denies as moot Defendants’ Partial Motion to Dismiss, grants in part and denies in part
Defendants’ Motion to Dismiss, and denies Plaintiff’s Motion for Partial Summary Judgment.
II. BACKGROUND
Plaintiff alleges that until the events that are the subject of this action, she was a Sergeant
with DOC and the Executive Secretary of the Labor Committee of her union, the Fraternal Order
of Police for D.C. Jail employees (“FOP”). Am. Compl. ¶ 1, ECF No. 7. The pandemic caused
by COVID-19 began during her employment at DOC, with the first confirmed case of COVID-
19 in the United States on January 21, 2020, the first COVID-19 death in the United States on
February 29, 2020,1 and the first confirmed case of COVID-19 in D.C. on March 7, 2020. Id.
¶¶ 16, 18, 20.
Plaintiff alleges that she, the FOP, and the FOP’s lawyers at Hannon Law Group
(“Hannon”) took many steps to try and address what she felt were inadequate COVID-19 safety
precautions in the D.C. Jail. Starting March 13, 2020, the FOP Labor Committee—including
Plaintiff—began meeting daily with Hannon to “review DOC’s response to the [COVID-19]
emergency” and form a plan to protect the union members, which included sharing information
about “D.C. Jail operations” with Hannon “to assess the danger of COVID-19 to Unit Members,
inmates and the public.” Id. ¶¶ 23–24. Plaintiff alleges that DOC leadership and Mayor Bowser
were trying to keep DOC personnel “uninformed of the dangers associated with exposure to
COVID-19 in the Jail so as not to impair operations of the Jail.” Id. ¶¶ 25–27. On March 20,
2020, the Labor Committee held a vote of no confidence in Director of DOC Quincy Booth and
Deputy Director of DOC Wanda Patten. Id. ¶ 28.
On March 25, 2020, Hannon sent a letter to Booth “outlining conditions at the Jail and
listing those actions urgently requested by the FOP,” which included information provided by
Plaintiff. Id. ¶ 33. The letter cited problems such as lack of communication between DOC
leaders and the Labor Committee, lack of COVID-19 screening for incoming inmates, and lack
of personal protective equipment for correctional officers having “direct contact” with inmates.
Id. Also on March 25, Plaintiff told Hannon that “at least two inmates had tested positive for
COVID-19.” Id. ¶ 35. Plaintiff alleges that having received no response by March 28, “the
1
The Amended Complaint states February 28, but the cited source states February 29.
2
Labor Committee established Protocols for its membership based on CDC Guidance, and
delivered them to DOC,” and “urged members to refuse to comply with an order that violated
these Protocols.” Id. ¶ 36. Plaintiff alleges that as of March 29 there were five inmates known to
have tested positive for COVID-19. Id. ¶ 37.
Upon learning that the Public Defender Service for the District of Columbia (“PDS”) and
the ACLU were filing suit regarding DOC’s failure to protect inmates from COVID-19, the
Labor Committee allegedly issued a press release in agreement, stating that DOC was not
following Centers for Disease Control and Prevention guidance. Id. ¶¶ 41–42. The Labor
Committee also held a “live-streamed” press conference on April 1, 2020, outside the D.C. Jail
to announce that they had authorized Hannon to file an amicus brief in the PDS/ACLU suit
(Banks v. Booth, No. 1:20-cv-849 (D.D.C. filed Mar. 30, 2020)). Id. ¶¶ 44–45, 49. Among the
speakers at this press conference were J. Michael Hannon of the eponymous law firm, Plaintiff,
and other FOP members. Id. ¶ 49. Plaintiff allegedly “spoke passionately about the failure of
DOC to respond to COVID-19 in the Jail,” including lack of testing, contact tracing, and
reporting the number of employees testing positive. Id. She also criticized Booth for not visiting
the Jail. Id. By April 8, the Jail’s “official” count of positive-testing inmates was allegedly
thirty-seven. Id. ¶ 50.
Plaintiff alleges that the Labor Committee, including Plaintiff, and Hannon lawyers spoke
on April 11 with court-appointed amici in the PDS/ACLU suit, sharing information and
documents about DOC’s handling of COVID-19. Id. ¶ 52. On April 14, Hannon filed a class
action lawsuit on behalf of the Labor Committee and its Chairman, Corporal Benjamin
Olubasusi, in the Superior Court of the District of Columbia alleging that DOC failed to protect
DOC personnel from COVID-19. Id. ¶ 54. Plaintiff provided a declaration in support of this suit
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based on “her personal experiences in the Jail, and from the experiences of other Unit Members
who, because she was a Union Officer, turned to her to report their concerns.” Id. ¶ 55. Three
FOP members newly tested positive for COVID-19 on April 22. Id. ¶ 57.
Plaintiff alleges that on the evening of April 22, 2020, “inmates rioted” in the Jail after
not being allowed recreation time or showers for four days. Id. The next day, “an email
reporting the incident was sent through the DOC Incident Notification Mailing List under the
title ‘Planned Use of Force.’” Id. ¶ 58. Plaintiff alleges that “[t]he email contained no medical
information and was not marked confidential.” Id. She forwarded this email to Hannon lawyers
“as part of her ongoing work with the Labor Committee to collect information” about DOC’s
COVID-19 response. Id. ¶ 59. J. Michael Hannon provided the email to a reporter to “raise
public awareness of the state of the Jail.” Id. ¶ 60. The reporter then contacted a DOC official
and referenced the Planned Use of Force email. Id. ¶ 61. Plaintiff subsequently gave an
interview to the reporter on April 27 “to raise public awareness of the danger at the Jail,” noting
“that an FOP member had now died due to COVID-19,” and the reporter published an article
including a testimonial from Plaintiff on May 1. Id. ¶¶ 64, 67. The Labor Committee, including
Plaintiff, and Hannon lawyers met again with the Banks amici on May 9 and shared additional
documentation, including the Planned Use of Force email. Id. ¶ 69. During a bargaining session
between FOP and DOC on May 12, a DOC Deputy Director allegedly asked, “how can we move
forward when we have people going to the media.” Id. ¶ 70. On May 22, Hannon filed the
FOP’s amicus brief in Banks, which allegedly relied in part on information provided by Plaintiff.
Id. ¶ 72.
After the reporter referenced the Planned Use of Force email to the DOC official, DOC
allegedly began an investigation into Plaintiff’s “conduct in emailing to Mr. Hannon.” Id. ¶ 61.
4
Plaintiff alleges that she notified DOC of her April 27 interview in advance and that
“[i]mmediately thereafter” she was reassigned and “demot[ed]” because of her “effectiveness at
raising public concern.” Id. ¶¶ 64–65. The stated reason for reassignment was that there was “a
pending investigation into misconduct by [Plaintiff] wherein [she] allegedly released privileged
information.” Id. ¶ 65. On May 14, the DOC Office of Investigative Services allegedly
completed the investigation into Plaintiff’s alleged misconduct. Id. ¶ 71. The report stated that
Plaintiff’s transmission of emails to Hannon violated DOC policies and procedures, including the
Health Insurance Portability and Accountability Act (“HIPAA”). Id.On May 29, Deputy Director Patten allegedly proposed that Plaintiff be terminated from
her position because Plaintiff forwarded certain emails to Hannon. Id. ¶ 73. Plaintiff alleges that
in this proposal,
Patten intentionally failed to note that the offending emails were NOT marked
confidential, under DOC policy or federal HIPAA regulations. Nor did she note
that federal HIPAA regulations permit a Unit Member to forward otherwise
confidential documents to an attorney under whistleblower law. Director Patten’s
distortion of the facts represents a reckless disregard for the rights of SGT.
JOHNSON and the law.
Id. A hearing officer was appointed to review the proposed termination in accordance with the
FOP’s collective bargaining agreement. Id. ¶ 74. On June 30, the hearing officer recommended
against disciplining Plaintiff in part because Plaintiff’s disclosures to Hannon were protected by
D.C. whistleblower law. Id. ¶ 75.
Booth responded in writing on July 20, allegedly including “new legal arguments not
present in DOC’s original submission.” Id. ¶ 76. Booth allegedly focused on Plaintiff’s
supposed violation of HIPAA and “intentionally withheld” the fact that the emails were not
“marked confidential under DOC polices or HIPAA regulations . . . in reckless disregard for the
rights of [Plaintiff] and the law.” Id. Booth allegedly then “remanded” the case for the hearing
5
officer’s reconsideration. Id. On August 4, the hearing officer submitted new findings allegedly
“adopt[ing] almost in its entirety Director Booth’s updated arguments.” Id. ¶ 79. The hearing
officer concluded that even though Plaintiff’s “disclosure of DOC email to” Hannon was
permitted under 45 C.F.R. § 164.502(j), a whistleblower exception to HIPAA, Plaintiff’s
“forwarding the email through her attorneys to the media was not protected under the
Whistleblower Protection Act,” and Plaintiff was “bound by the actions of the attorneys.” Id.Plaintiff received notice of her dismissal on August 13, in a letter dated August 12, from
Booth adopting the hearing officer’s updated recommendation. Id. ¶ 80. Her employment with
DOC ended on August 21. Id. ¶ 81.
On September 3, 2020, Plaintiff filed a complaint in the Superior Court of the District of
Columbia alleging that Defendants violated the DCWPA and the First Amendment under 42
U.S.C. § 1983, and that Defendants did so as a civil conspiracy. Complaint, Johnson v. District
of Columbia, Civil Action No. 2020 CA 003889 B (D.C. Super. Ct. 2020), ECF No. 1-2 at 6–33.
Defendants removed this action to this Court on October 14, and Plaintiff filed an amended
complaint on November 18. Notice of Removal, ECF No. 1; Am. Compl. Plaintiff’s Amended
Complaint retains only the claims brought pursuant to the DCWPA and First Amendment under
42 U.S.C. § 1983.
Defendants moved to partially dismiss Plaintiff’s original Complaint and Plaintiff
responded. Defs.’ Partial Mot., ECF No. 6; Pl.’s Opp’n Partial Mot., ECF No. 8. Defendants
moved to dismiss Plaintiff’s Amended Complaint for failing to state claims upon which relief
can be granted for both the DCWPA and First Amendment claims. Defs.’ Mot., ECF No. 10;
Pl.’s Opp’n, ECF No. 20; Defs.’ Reply, ECF No. 21. Plaintiff moved for partial summary
6
judgment of several elements of her DCWPA claim (Count I). Pl.’s Mot., ECF No. 11; Defs.’
Opp’n, ECF No. 19; Pl.’s Reply, ECF No. 22.
III. LEGAL STANDARD
The Federal Rules of Civil Procedure require that a complaint contain “a short and plain
statement of the claim” to give the defendant fair notice of the claim and the grounds upon which
it rests. Fed. R. Civ. P. 8(a)(2); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam).
A motion to dismiss under Rule 12(b)(6) “tests the legal sufficiency of a complaint” under that
standard; it asks whether the plaintiff has properly stated a claim. Browning v. Clinton, 292 F.3d
235, 242 (D.C. Cir. 2002). “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). This means that a plaintiff’s factual allegations “must be enough to raise a right to relief
above the speculative level, on the assumption that all the allegations in the complaint are true
(even if doubtful in fact).” Twombly, 550 U.S. at 555–56 (citations omitted). “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements,” are
therefore insufficient to withstand a motion to dismiss. Iqbal, 556 U.S. at 678. A court need not
accept a plaintiff’s legal conclusions as true, see id., nor must a court presume the veracity of
legal conclusions that are couched as factual allegations, see Twombly, 550 U.S. at 555.
However, a court considering a motion to dismiss presumes that the complaint’s factual
allegations are true and construes them liberally in the plaintiff’s favor. See, e.g., United States
v. Philip Morris, Inc., 116 F. Supp. 2d 131, 135 (D.D.C. 2000).
Rule 56 of the Federal Rules of Civil Procedure requires a court to grant summary
judgment “if the movant shows that there is no genuine dispute as to any material fact and the
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movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A “material” fact is
one capable of affecting the substantive outcome of the litigation. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if there is enough evidence for a
reasonable jury to return a verdict for the non-movant. See Scott v. Harris, 550 U.S. 372, 380
(2007). The inquiry under Rule 56 is essentially “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.” Anderson, 477 U.S. at 251–52.
IV. ANALYSIS
A. Defendants’ Partial Motion to Dismiss (ECF No. 6)
Defendants moved to dismiss Plaintiff’s initial complaint on November 4, 2020. Defs.’
Partial Mot. Plaintiff subsequently filed an amended complaint and Defendants moved to
dismiss that amended complaint. Am. Compl.; Defs.’ Partial Mot. Therefore, Defendants’ first
motion to dismiss is denied as moot.
B. Defendants’ Motion to Dismiss (ECF No. 10)
Defendants move to dismiss both of Plaintiff’s claims for failure to state a claim. See
Fed. R. Civ. P. 12(b)(6). For the reasons set forth below, Defendants’ motion to dismiss is
granted in part regarding Plaintiff’s DCWPA claim and otherwise denied.2
2
Defendants also argue that Count III should be dismissed because it “does not assert a
cause of action, and instead merely asserts a prayer for the award of injunctive relief.” Defs.’
Mot. at 14. Plaintiff “takes no position on whether Count Three should stand alone or be
construed as part of the prayer for relief.” Pl.’s Opp’n at 18 n.2. The Court dismisses Count III
and will construe its content as part of Plaintiff’s prayer for relief. Cf. Elec. Priv. Info. Ctr. v.
Drone Advisory Comm., 369 F. Supp. 3d 27, 38 (D.D.C. 2019) (dismissing Declaratory
Judgment Act count and construing as part of prayer for relief), aff’d, No. 19-5238, 2021 WL
1703626 (D.C. Cir. Apr. 30, 2021).
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1. D.C. Whistleblower Protection Act (Count I)
Defendants argue that Plaintiff’s claim under the DCWPA fails for two reasons. First,
Defendants argue that Plaintiff did not plead that she made a protected disclosure. Second,
Defendants argue that Plaintiff did not adequately plead causation. The Court holds that
Defendants have only demonstrated that Plaintiff failed to state a claim under the DCWPA with
respect to her alleged protected disclosures through participation in an unfair labor practice
complaint and sixteen group grievances. Only Plaintiff’s claims based on those alleged protected
disclosures are therefore dismissed.
The DCWPA states “that the public interest is served when employees of the District
government are free to report waste, fraud, abuse of authority, violations of law, or threats to
public health or safety without fear of retaliation or reprisal.” D.C. Code § 1-615.51. “A
plaintiff asserting a claim under the DCWPA must establish a prima facie case that (1) he made a
‘protected disclosure’; (2) his supervisor took or threatened to take a ‘prohibited personnel
action’ against him; and (3) the protected disclosure was a ‘contributing factor’ to the prohibited
personnel action.” Bowyer v. District of Columbia, 793 F.3d 49, 52 (D.C. Cir. 2015) (citing D.C.
Code §§ 1-615.53(a), 1-615.54(b)).
a. Protected Disclosure
Defendants argue that Plaintiff failed to adequately plead a protected disclosure for three
reasons. First, Defendants argue that some of Plaintiff’s disclosures were not made directly “to a
supervisor or a public body,” as required by the DCWPA. Second, Defendants argue that one of
Plaintiff’s disclosures concerned information already widely known, and that protected
disclosures cannot have been already widely known. Third, Defendants argue that Plaintiff did
not plead sufficient facts regarding certain disclosures. As discussed below, the Court only
9
agrees with the third argument, which concerns alleged disclosures through Plaintiff’s
participation in an unfair labor practice complaint and sixteen group grievances.
“A supervisor shall not take, or threaten to take, a prohibited personnel action or
otherwise retaliate against an employee because of the employee’s protected disclosure.” D.C.
Code § 1-615.53. “Protected disclosure” is defined as
any disclosure of information, not specifically prohibited by statute, without
restriction to time, place, form, motive, context, forum, or prior disclosure made
to any person by an employee or applicant, including a disclosure made in the
ordinary course of an employee’s duties by an employee to a supervisor or a
public body that the employee reasonably believes evidences [certain categories
of mismanagement, abuse, danger, etc.].
Id. § 1-615.52(a)(6). “Prohibited personnel action” is defined to include at least
recommended, threatened, or actual termination, demotion, suspension, or
reprimand; involuntary transfer, reassignment, or detail; referral for psychiatric or
psychological counseling; failure to promote or hire or take other favorable
personnel action; or retaliating in any other manner against an employee because
that employee makes a protected disclosure or refuses to comply with an illegal
order, as those terms are defined in this section.
Id. § 1-615.52(a)(5)(A).
The definition of “protected disclosure” was amended in 2010 to replace “by statute”
with “by statute, without restriction to time, place, form, motive, context, forum, or prior
disclosure made to any person by an employee or applicant, including a disclosure made in the
ordinary course of an employee’s duties.” Whistleblower Protection Amendment Act of 2009
§ 2(a)(2), 2010 D.C. Law 18-117, 57 D.C. Reg. 896 (Mar. 11, 2020), https://code.dccouncil.us/
dc/council/laws/docs/18-117.pdf (“Whistleblower Protection Amendment Act of 2009”).
Defendants’ first argument is that Plaintiff’s disclosures to Hannon were not protected
disclosures because Hannon is not a supervisor or public body. See Defs.’ Mot. at 5; Defs.’
Reply at 2–4. This argument requires interpreting the DCWPA, a D.C. statute. “In answering
questions involving the proper interpretation of D.C. statutes, [we rely] on the construction of
10
these laws by the D.C. Court of Appeals.” Baylor v. Mitchell Rubenstein & Assocs., P.C., 857
F.3d 939, 947 (D.C. Cir. 2017) (alteration in original) (quoting Poole v. Kelly, 954 F.2d 760, 761
(D.C. Cir. 1992) (per curiam)). This rule does not extend to the D.C. Court of Appeals’ dicta.
United States v. Wade, 152 F.3d 969, 973 (D.C. Cir. 1998); see also id. (collecting cases). But
even such dicta should be carefully considered because when the interpretation of a D.C. statute
is not conclusively determined by a D.C. Court of Appeals decision, federal courts must predict
how the D.C. Court of Appeals would rule on the issue. See Coleman v. District of Columbia,
794 F.3d 49, 58 (D.C. Cir. 2015) (“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.” (alteration in original)).
The D.C. Court of Appeals’ “primary and general rule of statutory construction is that the
intent of the lawmaker is to be found in the language that he has used.” 1215 CT, LLC v. D.C.
Alcoholic Beverage Control Bd., 213 A.3d 605, 609 (D.C. 2019) (quoting Varela v. Hi-Lo
Powered Stirrups, Inc., 424 A.2d 61, 64–65 (D.C. 1980) (en banc)). “[T]he words of the statute
should be construed according to their ordinary sense and with the meaning commonly attributed
to them.” Id. (quoting Peoples Drug Stores, Inc. v. District of Columbia, 470 A.2d 751, 753
(D.C. 1983) (en banc)). “However, ‘there is wisely no rule of law forbidding resort to
explanatory legislative history no matter how clear the words may appear on superficial
examination.’” Id. (quoting Harrison v. N. Tr. Co., 317 U.S. 476, 479 (1943)). “Thus, ‘even
where the words of a statute have a superficial clarity, we may turn to legislative history to
ensure that our interpretation is consistent with legislative intent.” Id. (citation omitted; quoting
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Peoples Drug Stores, 470 A.2d at 754, and Aboye v. United States, 121 A.3d 1245, 1249 (D.C.
2015)).
Defendants argue that disclosures are only considered “protected disclosures” when they
are made “to a supervisor or a public body.” Defs.’ Mot. at 5. They contend that the pre-
amendment DCWPA required disclosure “to a supervisor or a public body” and the 2010
amendment did not alter this requirement. They claim that “statutory language, caselaw, [and]
legislative intent” support their interpretation. Defs.’ Reply at 3. Regarding statutory language,
Defendants argue that because the words “to any person” appear as part of the clause “without
restriction to . . . prior disclosure made to any person by an employee or applicant,” the “any
person” language refers to the recipients of prior disclosures, as opposed to the overall recipient
of a protected disclosure. Id. They cite Baumann v. District of Columbia as supporting their
view because the D.C. Circuit in that case held that certain disclosures were not protected
disclosures because they were made to a union committee, which was not a supervisor or public
body. Id. at 2–3; 795 F.3d 209, 219–20 (D.C. Cir. 2015). Defendants point to a D.C. legislative
report on the 2010 amendment which indicates that the “to any person” language was added as
part of an effort to provide protection to duplicative disclosures. See Defs.’ Reply at 3 (citing
D.C. Council, Report on Bill 18-233, the “Whistleblower Protection Amendment Act of 2009” at
4 (Nov. 19, 2009), ECF No. 19-4).
Plaintiff argues that protected disclosures post-amendment can be made to “any person.”
Pl.’s Opp’n at 9. They point to the “plain language meaning of the statute.” Pl.’s Reply at 2.3
3
This same statutory interpretation question was argued in the briefing for Plaintiff’s
Motion for Partial Summary Judgment, in addition to the briefing for Defendants’ Motion to
Dismiss. The Court considers arguments on this issue from both sets of briefs to answer the
same question of law for both motions.
12
Regarding case law, Plaintiff accurately notes that Baumann—cited for support by Defendants—
concerned the pre-amendment DCWPA. See 795 F.3d at 220 (“[E]ven assuming [the post-
amendment] statute encompasses Baumann’s disclosure, that amendment does not apply
retroactively.” (citation omitted)); see also id. at 219 (“any disclosure of information, not
specifically prohibited by statute, by an employee to a supervisor or a public body” (quoting
D.C. Code § 1-615.52(a)(6))). Moreover, Plaintiff cites both a D.C. Court of Appeals decision
and a decision of this Court that suggest in dicta that protected disclosures may be made to “any
person.” See Freeman v. District of Columbia, 60 A.3d 1131, 1141 & n.16 (D.C. 2012) (“The
FOX–5 broadcast two days later did not constitute a protected disclosure because it was not
made to a ‘supervisor or a public body’ as the DCWPA then required. . . . We note that the
Whistleblower Protection Amendment Act of 2009 relaxed this requirement.” (citation omitted));
Hawkins v. Boone, 786 F. Supp. 2d 328, 333 n.2 (D.D.C. 2011) (“Under the pre–2010 WPA,
statements to a newspaper would not be covered because The Washington Post was neither a
‘supervisor’ nor a ‘public body’ as required under § 1-615.52(a)(6). Under the current
incarnation of the WPA, a disclosure may be made ‘to any person.’”). Regarding legislative
history, Plaintiff points generally to the “overarching legislative intent of the act.” Pl.’s Reply at
4.
The Court believes Defendants’ interpretation is the one more likely to be adopted by the
D.C. Court of Appeals, and therefore interprets “protected disclosure” to only cover disclosures
“to a supervisor or a public body.” The plain language favors Defendants’ interpretation. The
Court finds the statutory language as codified to be ambiguous. It does not clearly limit “any
person” to the prior-disclosure provision, nor clearly remove the previously universal “supervisor
or a public body” limitation. One point weighing against Plaintiff’s interpretation is that under
13
Plaintiff’s interpretation, protected disclosures can generally be made to any person, but
“disclosure[s] made in the ordinary course of an employee’s duties” presumably can only be
protected disclosures if they are made to a “supervisor or a public body,” if the “supervisor or a
public body” language is to have any effect. The Court does not see why only disclosures made
in the ordinary course of an employee’s duties would need to be made to a supervisor or public
body when all others could be made to any person. Furthermore, if as Plaintiff argues, the
“supervisor or a public body” restriction applies only to disclosures made in the ordinary course
of an employee’s duties, the same logic seems to require the subsequent limitation—that the
employee reasonably believes the disclosed information to evidence certain categories of
mismanagement, abuse, danger, etc.—to apply only to “duties” disclosures as well. The Court
sees no indication from the statutory text that the D.C. Council intended to generally broaden
whistleblower protections to “any disclosure of information, not specifically prohibited by
statute, . . . made to any person by an employee,” Pl.’s Mot. at 30, yet restrict “duties”
disclosures to those made “to a supervisor or a public body” and for which “the employee
reasonably believes” the disclosures evidence certain categories of information.4
The legislative history also favors Defendants’ interpretation because it indicates that the
amendment to the definition of “protected disclosure” was not intended to broaden the category
4
The Court notes that a comma appears to have been lost during codification of the 2010
amendment. The pre-amendment statute defined “protected disclosure” to include “any
disclosure of information, not specifically prohibited by statute, by an employee to a supervisor
or public body.” D.C. Code Ann. § 1-615.52(a)(6) (West, effective until Mar. 10, 2020
amendment). The bill amending the DCWPA instructed that “by statute” be replaced with “by
statute, . . . including a disclosure made in the ordinary course of an employee’s duties.”
Whistleblower Protection Amendment Act of 2009 § 2(a)(2). Followed literally, the amended
statute should have a comma directly after “duties” because the pre-amendment statute had a
comma directly after “by statute.” Yet the as-codified, post-amendment version has no comma
after “duties.” See D.C. Code § 1-615.52(a)(6). That extra comma would indicate more clearly
that “to a supervisor or public body” applied universally.
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of potential recipients, but rather to address other issues. See Defs.’ Reply at 3 (citing D.C.
Council, Report on Bill 18-233, the “Whistleblower Protection Amendment Act of 2009” at 4
(Nov. 19, 2009), ECF No. 19-4). Although not every significant statutory change is included in
every relevant legislative report, this omission is another data point urging caution against
Plaintiff’s interpretation.
Although some cases suggest that the D.C. Court of Appeals may have previously
believed that protected disclosures could be made to “any person,” none of those cases squarely
address the issue. Freeman states in dicta that the requirement that a protected disclosure be
made to a supervisor or public body was “then required” by the DCWPA and had subsequently
been “relaxed.” Freeman, 60 A.3d at 1141 & n.16. The D.C. Court of Appeals indicated the
same understanding in dicta in a recent case where it stated in part that “‘protected disclosure’ is
defined to include (as pertinent here) ‘any disclosure of information . . . to any person by an
employee.’” Ukwuani v. District of Columbia, 241 A.3d 529, 551 (D.C. 2020). But there are
also some cases supportive of the Court’s and Defendants’ view. See, e.g., Clayton v. District of
Columbia, 374 F. Supp. 3d 119, 138 (D.D.C. 2019) (regarding amended DCWPA, stating in
dicta and without analysis that protected disclosures must be made to supervisor or public body);
District of Columbia v. Poindexter, 104 A.3d 848, 853 (D.C. 2014) (regarding amended
DCWPA, recounting jury instruction implying that protected disclosures must be made to
supervisor or public body). Overall, this Court believes that in a future case with the issue
squarely presented, the D.C. Court of Appeals would hold that protected disclosures must be
made “to a supervisor or a public body.”
Defendants further argue that protected disclosures must be made directly to a supervisor
or public body. See Defs.’ Reply at 4–5 (arguing that Plaintiff’s provision of information to
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attorneys for use in amicus brief was not disclosure made to public body because such
information was not “directly” provided to court). But the Court is not convinced that the
DCWPA requires direct disclosures. Defendants cite no authority supporting their view that
disclosures to a supervisor or public body must be made directly by the whistleblower to the
supervisor or public body. Plaintiff also cites no authority on this issue, but the Court notes at
least some persuasive case law indicating that indirect disclosures may be acceptable. See
Freeman, 60 A.3d at 1143 (holding that letter written by union attorney “on behalf of” plaintiff
was not plaintiff’s protected disclosure because at time of writing plaintiff was unaware of
potential illegality forming subject of letter, without mentioning indirect nature of disclosure);
Adams v. District of Columbia, No. 2009 CA 006419 B, 2011 WL 1991991, at *8–9 (D.C.
Super. Mar. 30, 2011) (“To the Court’s knowledge, neither the District of Columbia Court of
Appeals nor the D.C. Circuit has addressed whether the DC WPA’s ‘supervisor or [] public
body’ requirement limits protected disclosures to those made directly by the disclosor to the
disclosee—the supervisor or public body. . . . For this Court to hold that Detective Adams
cannot maintain an action under the DC WPA because he made a disclosure, which would have
otherwise been protected under the DC WPA, to the wrong person would be contrary to the
stated purpose of the DC WPA and public policy generally.” (first alteration in original)); cf.
Deneau v. Manor Care, Inc., 219 F. Supp. 2d 855, 864 (E.D. Mich. 2002) (holding that Michigan
whistleblower statute requiring reporting to “public body” may encompass indirect reports if
there is “a question of fact as to whether Plaintiff reported a suspected violation of law to a
public body”). At this time, the Court is not prepared to hold that disclosures must be made
directly to a supervisor or a public body.
16
Under this interpretation of the DCWPA, the Court holds that Defendants have not
demonstrated that their motion to dismiss should be granted regarding disclosure to a supervisor
or a public body for two reasons. First, Defendants did not argue that Plaintiff’s disclosures
failed to qualify as indirect disclosures to a supervisor or a public body; they only argued that
indirect disclosures were not protected by the DCWPA. E.g., Defs.’ Reply at 4–5 (“Although
Plaintiff alleges ‘participation’ in the Banks v. Booth class action, she did not directly provide
testimony or disclose information to the Court; rather, at best, she provided information to
attorneys, who then filed a brief as amicus curiae and a declaration by Plaintiff’s attorney.”
(emphasis added)). In fact, Defendants seem to acknowledge that at least some of Plaintiff’s
disclosures could count as indirect disclosures. For example, Defendants argue that one of
Plaintiff’s disclosures does not qualify “because she did not make any disclosures to the court”
and because an amicus brief and declaration filed in court by Hannon “cannot reasonably be
construed as Plaintiff’s own disclosures under the plain language of the DCWPA.” Defs.’ Mot.
at 5–6. Because Defendants did not argue that Plaintiff’s disclosures failed to qualify as either
direct or indirect protected disclosures, their motion cannot be granted on that ground.
Second, Plaintiff has pleaded sufficient facts alleging that her disclosures to Hannon were
indirect disclosures to public bodies. “Public body” is defined to include, among other entities,
any federal or D.C. judiciary, including any member thereof. D.C. Code § 1-615.52(a)(7)(B).
As Defendants acknowledge, Plaintiff “allege[d] that Plaintiff engaged in ‘protected disclosures
to attorneys for the FOP Labor Committee for the purpose of bringing litigation.’” Defs.’ Mot.
at 5 (emphasis added) (quoting Am. Compl. ¶ 84). Plaintiff alleges that after she forwarded the
Planned Use of Force email to Hannon, it was at least provided to court-appointed amici in
Banks v. Booth during a meeting between the Labor Committee—including Hannon—and court-
17
appointed amici, and the amici later submitted a report to the appointing judge. Compl. ¶ 69.
Plaintiff has therefore sufficiently alleged at this stage that sharing the Planned Use of Force
email with Hannon was an indirect disclosure to a public body. The amicus brief and declaration
filed by Hannon in Banks v. Booth are similarly alleged to be indirect disclosures to a federal
court. The Court therefore declines to grant Defendants’ motion to dismiss premised on failure
to have made disclosures to a supervisor or a public body.
Defendants’ second argument is that “Plaintiff’s participation as a plaintiff in the class
action lawsuit Olubasusi v. District of Columbia, Case No. 2020 CA 002256 B, in the D.C.
Superior Court, is not protected because the allegations in that complaint were already widely
known at the time of the case’s filing.” Defs.’ Mot. at 6. Defendants cite Johnson v. District of
Columbia for support, which suggests that “a true disclosure” under the DCWPA cannot concern
information that is “commonly known,” “a matter of public record,” or “already known” to the
recipients or “other supervisory persons.” 225 A.3d 1269, 1278–79 (D.C. 2020) (quoting
Wilburn v. District of Columbia, 957 A.2d 921, 925–26 (D.C. 2008)).
Taking the Plaintiff’s allegations as true, Defendants have not shown as a matter of law
that Plaintiff’s participation in Olubasusi raised only issues that were publicly known.
Defendants only make two specific factual arguments. They say that “Plaintiff concedes that
information related [to] DOC’s handling of COVID-19 was already the subject of a lawsuit filed
by the Public Defender Service and the ACLU,” Defs.’ Reply at 5 (citing Am. Compl. ¶ 41), and
that “Plaintiff also admits that the Labor Committee had given a press conference on that same
subject on April 1, 2020,” id. (citing Am. Compl. ¶ 49). But these are at a very high level of
generality. Plaintiff alleged that the content of the declaration she provided in Olubasusi “was
drawn from her personal experiences in the Jail, and from the experiences of other Unit Members
18
who, because she was a Union Officer, turned to her to report their concerns.” Am. Compl. ¶ 55.
This is also fairly high-level, but sufficient to survive a motion to dismiss. Although Plaintiff did
not explicitly plead that she provided information unknown to the general public, the Court finds
this to be a reasonable inference from the fact that she drew “from her personal experiences in
the Jail” and from first-hand accounts of the personal experiences of her colleagues. Defendants
may raise this issue again at the summary judgment stage with the benefit of discovery.
Defendants’ third argument is that Plaintiff failed to plead sufficient facts regarding
alleged protected disclosures through Plaintiff’s “participation in [an] unfair labor practice
complaint” and “participation in sixteen separate, group grievances.” Defs.’ Mot. at 6; Am.
Compl. ¶¶ 87–88. Defendants are correct. Plaintiff first mentions these two purported protected
disclosures in her claim for relief for Count I—with no mention of them in her extensive
“Factual Allegations” section—and says essentially no more than recited here other than that
these disclosures “serve the public interest.” These are “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements,” Iqbal, 556 U.S. at 678, and are
therefore dismissed.
b. Causation
In addition to challenging whether Plaintiff satisfied the protected-disclosure prong of a
DCWPA claim, Defendants also argue that Plaintiff did not adequately plead facts to support
causation. The causation element of a prima facie DCWPA claim requires establishing that “the
protected disclosure was a ‘contributing factor’ to the prohibited personnel action.” Bowyer, 793
F.3d at 52 (citing D.C. Code § 1-615.54(b)).
Defendants initially argue that “Plaintiff’s DCWPA claim . . . fails for lack of causation”
because her “termination stemmed from the findings of the investigation into Plaintiff’s use of
19
her District government email account to external sources, not any protected disclosure.” Defs.’
Mot. at 7–8. But this appears to again be an argument that Plaintiff’s disclosures to Hannon
were not protected disclosures because they were not made to a supervisor or public body.
Plaintiff correctly explains that Hawkins, the case relied upon by Defendants, is inapposite. In
that case, the plaintiff’s complaint “ma[de] clear that the adverse action occurred because of
[plaintiff’s] Washington Post interview,” yet that plaintiff did not allege that this interview was a
protected disclosure. 786 F. Supp. 2d at 333; see also Pl.’s Opp’n at 11. Defendants seem to
accept all of this in their reply, in which they state that “[t]he District does not dispute that
Plaintiff has sufficiently alleged causation in connection with the Planned Use of Force
Email . . . . But as to any other possible disclosure[,] . . . Plaintiff has pleaded no facts to support
an inference that these actions resulted in her termination.”5 Defs.’ Reply at 4.
The Court would be justified in denying this ground of Defendants’ motion because new
arguments cannot ordinarily be raised in reply. See Baloch v. Norton, 517 F. Supp. 2d 345, 348
n.2 (D.D.C. 2007) (“If the movant raises arguments for the first time in his reply to the non-
movant’s opposition, the court [may] either ignore those arguments . . . or provide the non-
movant an opportunity to respond.”), aff'd sub nom. Baloch v. Kempthorne, 550 F.3d 1191 (D.C.
Cir. 2008). Plaintiff was not afforded a fair opportunity to respond to this issue because of
Defendants’ shifting causation argument.
Regardless, the Court holds that Plaintiff has sufficiently pleaded causation for
disclosures other than the Planned Use of Force email. The strongest argument that Plaintiff did
not sufficiently plead causation for alleged disclosures other than the Planned Use of Force email
5
Defendants presumably intended to refer to “the Defendants” instead of “[t]he District”
because Count I is alleged against all Defendants.
20
are several statements suggesting that Plaintiff herself alleges that she was fired for sharing the
Planned Use of Force email with Hannon. See, e.g., Pl.’s Opp’n at 11 (“[Plaintiff] was fired for
providing the Planned Use of Force email to Mr. Hannon as the Hearing officer Specifically
found on remand.”). However, these statements are not sufficiently unambiguous to be
considered disclaimers. For example, the preceding sentence of the quote above is: “SGT.
JOHNSON was not fired for participating in an interview with Nathan Baca.” Id. It is plausible
that Plaintiff was imperfectly stating a comparison with Hawkins, where the plaintiff alleged that
he was fired for giving an interview. Plaintiff can be forgiven for poor wording when
Defendants seek to use it against them in a new argument in reply after initially focusing
Plaintiff’s attention on a different argument.
Plaintiff also alleges sufficient facts regarding causation of disclosures other than sharing
the Planned Use of Force email with Hannon to survive a motion to dismiss. For example,
Plaintiff alleges that on April 1, 2020, she spoke at a press conference outside the D.C. Jail at
which it was announced that the Labor Committee intended “to submit an authorized Amicus
Brief supporting the PDS/ACLU lawsuit.” Am. Compl. ¶ 49. DOC had allegedly been notified
of the press release in advance, id. ¶ 46, but even if they had not been, it can be inferred that
DOC personnel would become aware of the content of a press conference staged outside the Jail
by DOC employees and their union’s lawyers. Similarly, Plaintiff alleges that Hannon filed a
class action suit against DOC on April 14 which included a declaration from Plaintiff. Id. ¶ 54.
Because both of these occurred before the date of Plaintiff’s dismissal notice of August 12, and
because these disclosures allegedly criticized DOC’s handling of COVID-19, the facts as alleged
regarding causation are “enough to raise a right to relief above the speculative level, on the
21
assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly,
550 U.S. at 555–56 (citations omitted).
2. Section 1983—First Amendment (Count II)
In addition to her claim brought pursuant to the DCWPA, Plaintiff brings a First
Amendment claim under 42 U.S.C. § 1983, which Defendants have also moved to dismiss.6
Defendants argue that Plaintiff’s First Amendment claim under Section 1983 fails for three
reasons. First, Defendants argue that Plaintiff’s sharing of emails was not protected speech.
Second, Defendants argue that Plaintiff did not plead adequate facts connecting talking to the
press with retaliatory action. Third, Defendants argue that, even if Plaintiff has pleaded a
plausible claim under the First Amendment, Booth and Patten are entitled to qualified immunity
from such a claim. For the reasons set forth below, the Court holds that Defendants have not
shown that Plaintiff failed to sufficiently plead a First Amendment violation. Defendants’
motion is therefore denied with respect to Plaintiff’s First Amendment claim.
In the D.C. Circuit, courts apply a four-prong test in evaluating a government employee’s
First Amendment retaliation claim:
First, the public employee must have spoken as a citizen on a matter of public
concern. Second, the court must consider whether the governmental interest in
promoting the efficiency of the public services it performs through its employees
outweighs the employee’s interest, as a citizen, in commenting upon matters of
public concern. Third, the employee must show that [his] speech was a
substantial or motivating factor in prompting the retaliatory or punitive act.
Finally, the employee must refute the government employer’s showing, if made,
that it would have reached the same decision in the absence of the protected
speech.
6
References to “Defendants” in this subsection refer only to Booth and Patten in their
personal capacities in line with Count II as pleaded. See Am. Compl. ¶¶ 92–97.
22
Bowie v. Maddox, 642 F.3d 1122, 1133 (D.C. Cir. 2011) (alteration in original) (quoting Wilburn
v. Robinson, 480 F.3d 1140, 1149 (D.C. Cir. 2007)). In balancing the governmental interest
against the employee’s interest for the second prong—performing the Pickering balancing, see
Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563, 568 (1968)—courts
consider several factors including “whether the statement impairs discipline by superiors or
harmony among co-workers, has a detrimental impact on close working relationships for which
personal loyalty and confidence are necessary, or impedes the performance of the speaker’s
duties or interferes with the regular operation of the enterprise.” LeFande v. District of
Columbia, 841 F.3d 485, 494 (D.C. Cir. 2016) (quoting Rankin v. McPherson, 483 U.S. 378, 388
(1987)). This “balancing test calls for a fact-intensive inquiry.” Thompson v. District of
Columbia, 428 F.3d 283, 286 (D.C. Cir. 2005). “The first two factors . . . are questions of law
for the court to resolve, while the latter are questions of fact ordinarily for the jury.” Wilburn,
480 F.3d at 1149 (alteration in original).
“Qualified immunity shields federal and state officials from money damages unless a
plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and
(2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al–
Kidd, 563 U.S. 731, 735 (2011) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). For a
right to be “clearly established” at the time of the official’s conduct, “existing law must have
placed the constitutionality of the officer’s conduct ‘beyond debate.’” District of Columbia v.
Wesby, 138 S. Ct. 577, 589 (2018) (quoting Ashcroft, 563 U.S. at 741). The legal principle to be
applied must be “dictated by ‘controlling authority’ or ‘a robust consensus of cases of persuasive
authority’” that “clearly prohibit the officer’s conduct in the particular circumstances before
him.” Id. at 589–90 (quoting Ashcroft, 563 U.S. at 741–42). “Qualified immunity balances two
23
important interests—the need to hold public officials accountable when they exercise power
irresponsibly and the need to shield officials from harassment, distraction, and liability when
they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). The
Supreme Court has “stressed the importance of resolving immunity questions at the earliest
possible stage in litigation.” Id. at 232 (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per
curiam)).
Trial courts have discretion to decide which prong of the qualified immunity analysis to
address first. Pearson, 555 U.S. at 236; see Rasul v. Myers, 563 F.3d 527, 530 (D.C. Cir. 2009)
(“[L]ower federal courts have the discretion to decide only the more narrow ‘clearly established’
issue ‘in light of the circumstances of the particular case at hand.’” (quoting Pearson, 555 U.S. at
236)). On the “clearly established” prong, “[t]he dispositive question is ‘whether the violative
nature of particular conduct is clearly established.’” Abbasi, 137 S. Ct. at 1866 (quoting
Mullenix v. Luna, 577 U.S. 7, 12 (2015) (per curiam)); see also id. at 1867 (“[Q]ualified
immunity protects ‘all but the plainly incompetent or those who knowingly violate the law.’”
(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986))).
a. Protected Speech
Defendants move to dismiss Plaintiff’s First Amendment claim for failure to state a
claim, arguing that Plaintiff did not engage in protected speech based on the second prong of the
Pickering test: “whether the governmental interest in promoting the efficiency of the public
services it performs through its employees outweighs the employee’s interest, as a citizen, in
commenting upon matters of public concern.” Bowie, 642 F.3d at 1133 (quoting Wilburn, 480
F.3d at 1149). Defendants argue that “even if Plaintiff engaged in speech as a private citizen by
forwarding internal DOC emails to outside parties, the government’s interests in safeguarding
24
pre-investigatory information and medical records of inmates outweighs any possible interest
Plaintiff had in making that speech,” and that “Defendants’ interest in promoting the efficiency
and security of the operations at DOC significantly outweighs Plaintiff’s interest in releasing the
pre-investigatory and inmate medical information.” Defs.’ Mot. at 9–10. Citing HIPAA
regulations and “D.C.’s Freedom of Information Statute,” Defendants state that “[t]he
government has a substantial interest in safeguarding pre-investigatory information as well as
inmate medical information from public disclosure.” Id. at 10 (citing 45 C.F.R. § 160.101 et seq.
and § 164.102 et seq.; D.C. Code § 2-531 et seq.). Defendants claim that “Plaintiff’s speech
interfered with DOC’s obligation to comply with medical privacy laws and the standard
operations of the agency.” Id. Defendants criticize Plaintiff for failing to articulate why “this
speech in particular was protected,” even if “Plaintiff had an interest in speaking out about
DOC’s COVID-19 response generally.” Defs.’ Reply at 7.
It is Defendants’ burden as movants to demonstrate why Plaintiff’s allegations, taken as
true, fail as a matter of law to state a claim that would pass the Pickering balancing test. As
explained below, based on the current record the Court cannot say as a matter of law that
Plaintiff has failed to plead an interest that outweighs the government’s interest in the Pickering
balancing test.
Defendants do not sufficiently articulate how the Court could conclude at this pre-
discovery stage that Plaintiff’s “statement[s] impair[ed] discipline by superiors or harmony
among co-workers, ha[d] a detrimental impact on close working relationships for which personal
loyalty and confidence are necessary, or impede[d] the performance of the speaker’s duties or
interfere[d] with the regular operation of the enterprise,” LeFande, 841 F.3d at 494 (quoting
Rankin, 483 U.S. at 388), or why such effects could have been predicted. The closest
25
Defendants come to addressing the specific “governmental interest in promoting the efficiency of
the public services it performs through its employees,” Bowie, 642 F.3d at 1133 (quoting
Wilburn, 480 F.3d at 1149), is stating, without support, that “Plaintiff’s speech interfered with
DOC’s obligation to comply with medical privacy laws and the standard operations of the
agency,” Defs. Mot. at 10. But they say nothing specific about what type or degree of harm, if
any, resulted or could have resulted from Plaintiff’s disclosure, nor the importance generally of
ensuring strict compliance “with medical privacy laws and the standard operations of the
agency.” See Rankin, 483 U.S. at 388–89 (concluding that petitioners “fail to demonstrate a state
interest that outweighs” employee’s First Amendment rights in part because “there is no
evidence that it interfered with the efficient functioning of the office”). Compliance with
medical privacy laws such as HIPAA is surely important. But even assuming Plaintiff’s speech
violated HIPAA, Defendants say nothing about the actual or potential harm from disclosure of
the type of information at issue here. Furthermore, Defendants do not make clear what “standard
operations of the agency” they refer to, nor what kind of investigation the disclosed “pre-
investigatory information” could jeopardize, nor how this particular disclosure would jeopardize
that investigation. Without the benefit of discovery to conduct this “fact-intensive inquiry,”
Thompson, 428 F.3d at 286, and taking Plaintiff’s factual allegations as true, the Court is not
convinced that Defendants have identified a weighty interest on their side of the balancing test.
See id. at 286–87 (reversing judgment on the pleadings for defendants on plaintiff’s First
Amendment retaliation claim because, viewing the complaint’s allegations in the light most
favorable to plaintiff, with the record “[c]onsisting only of the complaint, the record contains no
evidence regarding the extent of [plaintiff’s] alleged disruptiveness,” and defendants “cannot
26
prevail in a balancing test with no record evidence on [their] side of the scale”).7 In fact, taking
Plaintiff’s allegations as true that she was fired “in retaliation for her first amendment protected
disclosures,” Am. Compl. ¶¶ 94–95 (emphasis added), rather than because she violated HIPAA
or DOC policies, suggests little to no interest on Defendants’ side because, as alleged,
Defendants did not fire Plaintiff for those violations.
In contrast, Plaintiff sufficiently alleges a weighty First Amendment interest. Taking
Plaintiff’s factual allegations as true, she sought “to bring public scrutiny on the deplorable and
dangerously poor response to COVID-19 by DOC.” Am. Compl. ¶ 94. The alleged spread of a
contagious disease among DOC personnel and inmates due to DOC mismanagement is a matter
of public concern. Additionally, given Plaintiff’s unique position to be informed about these
matters of public concern, her interest in commenting about them to the public is high. See
Baumann v. District of Columbia, 987 F. Supp. 2d 68, 77 (D.D.C. 2013) (“As a government
employee, and specifically a police officer, the Plaintiff and the public have a strong interest in
the Plaintiff’s ability to comment on matters of public concern.”), aff’d, 795 F.3d 209 (D.C. Cir.
2015). These allegations are more than sufficient to plausibly allege an interest that outweighs
the government’s interest when viewed in the light most favorable to Plaintiff, and therefore
survive a motion to dismiss. Although the Court would not characterize Defendants’ argument
as “embrac[ing] pointless secrecy,” Pl.’s Opp’n at 14, Defendants have not provided sufficient
7
Defendants cite a case in which a court held at the motion to dismiss stage “that the
governmental interests far outweighs any conceivable countervailing interests.” Pearson v.
District of Columbia, 644 F. Supp. 2d 23, 44 (D.D.C. 2009), aff’d, 377 F. App’x 34 (D.C. Cir.
2010). But that conclusion came after the court acknowledged that, “[w]here an employee is
simply performing his or her job duties, as the Court has concluded is the case here, the Court
need not—and should not—proceed to balance the competing interests.” Id. at 42. The
balancing analysis was therefore dicta.
27
support on this pre-discovery record to allow the Court to conclude that, taking Plaintiff’s
allegations as true, the government’s interest outweighs Plaintiff’s interest.
b. Causation for Press Disclosures
Defendants briefly argue that “the Amended Complaint establishes that Plaintiff’s
termination was the result of her unauthorized disclosures of sensitive information to attorneys at
Hannon Law Group,” and therefore Plaintiff has not pleaded sufficient allegations of retaliation
“for her participation in press conferences or interviews.” Defs.’ Mot. at 11; see also Defs.’
Reply at 6 n.3. But the Amended Complaint also states that “[i]n the instant case the speech was
both the sharing of emails with Union attorneys and sharing her experiences and beliefs with the
press regarding the COVID-19 pandemic in the Jail,” and that Defendants Booth and Patten
retaliated against her for this allegedly protected speech. Am. Compl. ¶¶ 94–96. Plaintiff
alleged that she participated in press conferences and interviews criticizing DOC’s handling of
COVID-19. See, e.g., Am. Compl. ¶¶ 49, 64, 67. She also alleged facts from which it can be
plausibly inferred that Booth and Patten became aware of such disclosures before her
reassignment or dismissal, including advance notice provided to DOC about the April 1 press
conference and an article being published on May 1 with a testimonial from Plaintiff. Id. ¶¶ 44–
47, 67. Given that Plaintiff is essentially alleging that Booth and Patten provided a pretextual
reason for their actions and there has not yet been any discovery, Plaintiff cannot be expected to
provide much more to show causation at this time. See Fed. R. Civ. P. 9(b) (“Malice, intent,
knowledge, and other conditions of a person’s mind may be alleged generally.”); Jones v.
Quintana, 831 F. Supp. 2d 75, 87 (D.D.C. 2011) (holding that at the “early stage” of a motion to
dismiss, plaintiff sufficiently alleged that her protected speech was “a substantial or motivating
factor” of the adverse employment actions in part because such allegations are “implicit” when
28
plaintiff alleged defendant’s conduct “was an ‘intentional’ effort to ‘prevent [plaintiff] from
exercising her First Amendment rights’”).
Furthermore, the temporal proximity between Plaintiff’s alleged participation in press
conferences and interviews and the alleged retaliation strengthens the plausibility of causation.
Plaintiff alleges that she participated in a press conference outside the Jail on April 1, 2020, Am.
Compl. ¶ 49, and gave an interview to a reporter on April 27, 2020, which resulted in a published
article on May 1, 2020, id. ¶¶ 64, 67. Plaintiff also alleges that she was removed from her post
“[i]mmediately []after” giving the interview, id. ¶ 65, that on May 12, 2020, “during a bargaining
session between the FOP Union and DOC, . . . DOC Deputy Director Gitanna Stewart-Ponder
stated ‘how can we move forward when we have people going to the media,’” id. ¶ 70, that on
May 14, 2020, DOC “completed a report on SGT. JOHNSON’s supposed misconduct,” id. ¶ 71,
and that on May 29, 2020, “SGT. JOHNSON was proposed by Defendant Wanda Patten for
removal from her position,” id. ¶ 73. The close temporal proximity between Plaintiff’s alleged
press conferences and interviews and Defendants’ subsequent alleged steps taken concerning
Plaintiff’s employment supports finding plausible causation. The allegation that DOC personnel
found “people going to the media” to be disruptive further supports this plausibility by alleging
that DOC had knowledge of “people going to the media” and that DOC perceived this
negatively. For these reasons, Defendants have not shown that Plaintiff failed to sufficiently
plead causation related to her alleged participation in press conferences and interviews.
c. Qualified Immunity
Finally, Defendants argue that they are entitled to qualified immunity with respect to
Plaintiff’s First Amendment claim. As stated above, “[q]ualified immunity shields federal and
state officials from money damages unless a plaintiff pleads facts showing (1) that the official
29
violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the
time of the challenged conduct.” Ashcroft v. al–Kidd, 563 U.S. 731, 735 (2011) (citing Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982)). The Court explained above why Defendants have not
shown that Plaintiff failed to sufficiently plead protected speech or causation. Therefore,
Defendants’ motion to dismiss based on qualified immunity can succeed only if the “clearly
established” prong of the qualified immunity test is met. See Defs. Mot. at 11 (“Even if Plaintiff
states a First Amendment retaliation claim, Booth and Patten are entitled to qualified
immunity.”).
It is first necessary to define what constitutional right must have been clearly established.
Defendants argue that
the relevant question is not whether Plaintiff’s conduct actually violated DOC
policies or HIPAA, but merely whether, at the time Patten recommended
Plaintiff’s termination and Booth gave Plaintiff her final notice, that the individual
defendants reasonably believed Plaintiff’s conduct violated DOC Policies and
HIPAA’s Privacy Rules and that she could be terminated on that basis.
Defs.’ Mot. at 13 (citing Mpoy v. Rhee, 758 F.3d 285, 295 (D.C. Cir. 2014)). But Plaintiff’s
factual allegations must be taken as true for purposes of a motion to dismiss. Therefore, the
question is not whether it was clearly established that Defendants could not fire Plaintiff for
violating DOC policies or HIPAA. The question is whether it was clearly established that
Defendants could not pretextually claim that they were firing Plaintiff for violating DOC policies
or HIPAA while actually firing her for “sharing of emails with Union attorneys and sharing her
experiences and beliefs with the press regarding the COVID-19 pandemic in the Jail . . . to bring
public scrutiny on the deplorable and dangerously poor response to COVID-19 by DOC.” Am.
Compl. ¶ 94. The phrase “and that she could be terminated on that basis” in Defendants’ brief
obscures Plaintiff’s allegation—taken as true at this stage—that “that basis” was pretextual.
30
Defendants put forth limited argument and cite no controlling authority about whether or
not the facts alleged indicate that Defendants violated clearly established law by firing Plaintiff
for the content of her speech. Defendants cite only an out-of-circuit district court case for the
proposition that “courts have consistently upheld terminations challenged by employees fired for
what their employer honestly and reasonably believed to be a violation of HIPAA.” Defs.’ Mot.
at 13; see Kopko v. Lehigh Valley Health Network, No. CV 14-1290, 2016 WL 6442062 (E.D.
Pa. Oct. 31, 2016), aff’d, 776 F. App’x 768 (3d Cir. 2019). The Court does not doubt that
employees could in some circumstances be legally fired for violating HIPAA. But, as explained
above, for purposes of this motion it is irrelevant whether Defendants could fire Plaintiff for
reasons other than those alleged. See Jones, 831 F. Supp. 2d at 87 (“While that may or may not
turn out to be true after the parties have had the opportunity to engage in discovery, the simple
and unavoidable fact is that Jones has alleged otherwise.”). Plaintiff has alleged that Defendants
retaliated against her for “rais[ing] her public-safety concerns” and “[t]his account is more than
adequately supported by the full panoply of factual allegations in the . . . Amended Complaint.”
Id.; see, e.g., Pl.’s Opp’n at 16–17 (recounting Plaintiff’s allegations that Defendants
intentionally declined to alert hearing officer to relevant facts and that Defendants “could not
have reasonably believed SGT. JOHNSON’s forwarding of emails violated HIPAA,” which if
true would belie Defendants’ stated justification for Plaintiff’s dismissal); Am. Compl. ¶¶ 94–
95 (alleging that Plaintiff’s protected speech was made “to bring public scrutiny on the
deplorable and dangerously poor response to COVID-19 by DOC,” and that she was fired “in
retaliation for her first amendment protected disclosures”).8
8
To the extent that Plaintiff argues that Defendants are not entitled to qualified immunity
because it was clearly established that Plaintiff did not violate HIPAA or “Agency Policies,” see
Pl.’s Opp’n at 16–18, Plaintiff also misunderstands the proper inquiry, as noted for Defendants
31
The question is therefore not whether Defendants had a “good faith belief that [Plaintiff]
committed a job-related violation of agency rules”; it is whether at the time “the general
principles governing First Amendment retaliation claims had been so fully articulated and
repeatedly applied to analogous employment disputes” such that it was “beyond debate” that
terminating Plaintiff’s employment for “rais[ing] her public-safety concerns” was
unconstitutional. Jones, 831 F. Supp. 2d at 88 (quoting Al-Kidd, 563 U.S. at 741). “The
Supreme Court has cautioned us not to define the right at too high a level of generality; instead,
we must examine the right in its ‘particularized’ context.” Aref v. Lynch, 833 F.3d 242, 267
(D.C. Cir. 2016) (citing Reichle v. Howards, 566 U.S. 658, 665 (2012)). But taking Plaintiff’s
allegations as true that she was pretextually reassigned and dismissed for her criticism of DOC’s
handling of COVID-19, and in light of this Court’s conclusion that Plaintiff has more than
sufficiently pleaded the elements of her Section 1983 action challenged by Defendants in their
motion, this is the most particularized the right needs to be defined in determining whether the
right was clearly established for purposes of this motion. See Taylor v. Riojas, 141 S. Ct. 52, 53–
54 (2020) (per curiam) (“[A] general constitutional rule already identified in the decisional law
may apply with obvious clarity to the specific conduct in question.” (quoting United States v.
Lanier, 520 U.S. 259, 271 (1997))).
In general, there can be “difficulty of finding clearly established law under Pickering”
because it requires a balancing of interests. Moran v. Washington, 147 F.3d 839, 847 (9th Cir.
1998); see also id. (collecting cases). But even though “reasonable officials might not always be
able to predict the outcome of a balancing test such as that used in Pickering cases,” in some
above. But to the extent Plaintiff alleges that Defendants “could not have reasonably believed”
Plaintiff violated HIPAA or agency policies,” id. at 17, to support her argument that Defendants’
stated reasons for dismissing her were pretextual, these allegations are relevant.
32
cases “the illegality of the [defendants’] conduct is sufficiently clear that they can fairly be said
to have been on notice of the impropriety of their actions.” Kinney v. Weaver, 367 F.3d 337,
371–72 (5th Cir. 2004); see Sanders v. District of Columbia, 522 F. Supp. 2d 83, 90 (D.D.C.
2007) (rejecting defendants’ argument that “because the law requires a balancing of competing
interests . . . the outcome in this particular instance would be difficult to predict” in part because
when “viewing the facts in the light most favorable to [plaintiff], a reasonable MPD official
surely would have known that retaliating against [plaintiff] for his public speech violated a
clearly established right”). In those cases, when “taking the plaintiff[’s] side of [factual]
disputes, th[e] case does not require any real balancing at all, for the [defendants] do not have
any relevant, legitimate interests to put on their side of the Pickering scales.” Kinney, 367 F.3d
at 372.
In light of the Pickering balancing above and the allegation—taken as true—that
Defendants’ contemporaneous justifications were pretextual, Defendants have not demonstrated
that it was not clearly established at the time that Defendants’ alleged actions violated the First
Amendment. “[T]he law is settled that as a general matter the First Amendment prohibits
government officials from subjecting an individual to retaliatory actions . . . for speaking out.”
Hartman v. Moore, 547 U.S. 250, 256 (2006) (citation omitted). A judge of this Court has stated
that at least as early as 2008, “any reasonable government official would have been on notice
that” it was “clearly unlawful” to “knowingly and intentionally” take adverse employment
actions against a government employee “because [the employee] had attempted to raise her
public-safety concerns about [Defendants’] own policies with the District of Columbia Council,
[the then-Mayor], and the media.” Jones, 831 F. Supp. 2d at 88 (internal quotation marks
omitted). Regarding the Pickering balancing test specifically—which itself is clearly
33
established—it would necessarily have been clear to any reasonable official that if there were no
legitimate interests on the government’s side of the balancing in a given case, the plaintiff’s
interest must prevail. See Thompson, 428 F.3d at 287 (“The [government] cannot prevail in a
balancing test with no record evidence on its side of the scale.”); Yniguez v. Arizonans for Off.
Eng., 69 F.3d 920, 943 (9th Cir. 1995) (explaining that the government “would lose by default”
in a Pickering balancing if there were “nothing on the non-free speech side of the scale”),
vacated sub nom. Arizonans for Off. Eng. v. Arizona, 520 U.S. 43 (1997); see also Mihos v.
Swift, 358 F.3d 91, 108 (1st Cir. 2004) (holding that that “when considering only the complaint,
as we are bound to do, we find a void on [defendant’s] side of the scale and the Pickering scale
tips decisively in favor of [plaintiff]” because plaintiff alleged that his termination was motivated
by “political interference and intimidation”); Edwards v. City of Goldsboro, 178 F.3d 231, 248
(4th Cir. 1999) (denying government’s motion for judgment on the pleadings in part because “at
this early pleading stage[] we cannot discern any legitimate interest of the Defendants” on their
side of the Pickering balancing test).
The D.C. Circuit has affirmed the denial of a motion to dismiss based on qualified
immunity when the defendants relied on support similar to that relied upon by Defendants here.
In Navab-Safavi v. Glassman, the plaintiff, a contractor for a unit of Voice of America, alleged
that her contract was terminated for appearing in a music video critical of the United States. 637
F.3d 311, 313 (D.C. Cir. 2011). The district court denied the defendants’ motion to dismiss
based on qualified immunity, and the defendants filed an interlocutory appeal. Id. at 314. The
D.C. Circuit panel acknowledged that “the government has presented a weighty interest in
support of its authority to take action” against the plaintiff, but went on to affirm the denial. Id.at 316–17. The court explained that when the plaintiff’s allegations were taken to be true and
34
construed in the light most favorable to her, the plaintiff’s interests were “weighed against little
government interest,” even though “this same view” might not “prevail after full discovery.” Id.
at 317. The court reasoned that “without further resolution of the factual questions underlying
the determination of the Pickering balance[,] . . . it is not possible to determine at this stage as a
matter of law that [plaintiff] has not alleged a violation of clearly established law.” Id. That was
because when “all we have of record is the [government’s] assertion that its interest in
performing its governmental functions and carrying out its statutory mandates was sufficiently
implicated by plaintiff’s conduct to warrant the protection of qualified immunity,” that is
insufficient because “qualified immunity cannot be based on a ‘simple assertion by [appellants]
without supporting evidence’ of the adverse effect of the speech on [the governmental
function].” Id. at 318 (quoting Shockency v. Ramsey Cty., 493 F.3d 941, 949–50 (8th Cir.
2007)). The court concluded that denial was proper because it was “unable to determine without
an evidentiary record whether any act [the government] committed in defense of those functions
constituted a violation of clearly established rights, or even in general terms, where the Pickering
balancing tips.” Id.Here, Plaintiff alleges that she was fired “in retaliation for her first amendment protected
disclosures” that “w[ere] undertaken as part of her personal responsibilities as Executive
Secretary for the Union Labor Committee in their efforts to bring public scrutiny on the
deplorable and dangerously poor response to COVID-19 by DOC.” Am. Compl. ¶¶ 94–95. As
discussed above, at this stage of the litigation the government has essentially nothing on its side
of the balancing test because the Court must rely on Plaintiff’s well-pleaded complaint,
construed liberally, and Plaintiff alleges that she was fired in retaliation for her speech, rather
than due to any potential or actual disruption to the government’s operations. “The Pickering
35
balance understandably favors the plaintiff when the test is based solely on the allegations in the
complaint.” Hafley v. Lohman, 90 F.3d 264, 267 (8th Cir. 1996). Like in Navab-Safavi, where
the D.C. Circuit affirmed denial of a motion to dismiss based on qualified immunity because “all
[the court] ha[d] of record” for the government’s interest was the government’s “assertion that its
interest in performing its governmental functions and carrying out its statutory mandates was
sufficiently implicated by plaintiff’s conduct to warrant the protection of qualified immunity,”
637 F.3d at 318, here, all Defendants have at this stage are their assertions that “the
government’s interests in safeguarding pre-investigatory information and medical records” and
“in promoting the efficiency and security of the operations at DOC” outweigh Plaintiff’s
interests, Defs.’ Mot. at 9–10. Because that is all Defendants have at this stage, and because
“qualified immunity cannot be based on a ‘simple assertion by [defendants] without supporting
evidence’ of the adverse effect of the speech on [the governmental function],” Navab-Safavi, 637
F.3d at 318 (second alteration in original) (quoting Shockency, 493 F.3d at 949–50), Defendants’
motion to dismiss based on qualified immunity must be similarly denied. For the same reason,
no reasonable official could have believed at the time that the Pickering balance would come out
in the government’s favor when taking Plaintiff’s allegations as true and construed in her favor
because Defendants then have nothing on their side of the scale.
With further development of the factual record there may potentially appear additional
contours to the relevant right such that it would not have been clearly established at the time.
For example, the right at issue would be defined differently if it was shown that Defendants
legitimately held separate, innocent justifications for the actions taken against Plaintiff, such as
the potential or actual detrimental effect on “the efficiency of the public services” from
violations of HIPAA or agency rules. But as elaborated elsewhere in this opinion, no such facts
36
are currently accepted when taking Plaintiff’s allegations as true and construing them liberally in
Plaintiff’s favor, as the Court must on a motion to dismiss. Therefore, “resolution of the
question of whether [Defendants’ are] entitled to qualified immunity must await further
development of the factual record.” Jones, 831 F. Supp. 2d at 83; see also Devlin v. Kalm, 531
F. App’x 697, 707 (6th Cir. 2013) (“[W]hile officers will often be entitled to qualified immunity
under Pickering, this will only be evident after an opportunity for discovery so that the court can
know ‘what is being balanced against what.’” (quoting Evans-Marshall v. Bd. of Educ. of Tipp
City Exempted Vill. Sch. Dist., 428 F.3d 223 (6th Cir. 2005) (Sutton, J., concurring))).
C. Plaintiff’s Motion for Partial Summary Judgment (ECF No. 11)
Plaintiff moves for partial summary judgment on certain elements of her DCWPA claim,
arguing that she is entitled to summary judgment because she made a protected disclosure,
Defendants took prohibited personnel actions against her, her protected disclosure was a
contributing factor to the prohibited personnel actions, and the prohibited personnel actions
would not have been taken without her protected disclosure. “A plaintiff asserting a claim under
the DCWPA must establish a prima facie case that (1) he made a ‘protected disclosure’; (2) his
supervisor took or threatened to take a ‘prohibited personnel action’ against him; and (3) the
protected disclosure was a ‘contributing factor’ to the prohibited personnel action.” Bowyer, 793
F.3d at 52 (citing D.C. Code §§ 1-615.53(a), 1-615.54(b)). For the reasons given below,
Plaintiff’s motion is denied.
1. Protected Disclosure
Plaintiff moves for summary judgment that her disclosures to Hannon were protected
disclosures. Pl.’s Mot. at 29–31. But Plaintiff has not demonstrated everything needed to prove
that she made protected disclosures beyond any genuine dispute of material fact, at least because
37
she has not established that she disclosed to a supervisor or a public body, held the required
belief, or made disclosures “not specifically prohibited by statute.” “Protected disclosure” is
defined as
any disclosure of information, not specifically prohibited by statute, without
restriction to time, place, form, motive, context, forum, or prior disclosure made
to any person by an employee or applicant, including a disclosure made in the
ordinary course of an employee’s duties by an employee to a supervisor or a
public body that the employee reasonably believes evidences:
(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).
Plaintiff does not make it perfectly clear which disclosures are the focus of this motion.
She refers to her “disclosures to [Hannon]” in plural, but then states that she “need only address
the single email upon which Director Quincy Booth relied, the April 23 Use of Force email.”
Pl.’s Mot. at 29. The following paragraph of her motion refers to “this email,” even though the
subsequent paragraph refers to “all of SGT. JOHNSON’s disclosures.” Id. at 30. Plaintiff does
not reference any other disclosures with specificity in her argument. Given the lack of analysis
dedicated to disclosures beyond the Planned Use of Force email and the relative focus of her
38
argument on that email, the Court construes the motion to be requesting summary judgment for
that email alone.9
First, the parties again debate whether the current DCWPA requires disclosures to have
been made to a supervisor or a public body to be considered protected disclosures. See, e.g.,
Defs.’ Opp’n at 4–6. For the reasons given above in Section IV.B.1.a, the Court holds that the
D.C. Court of Appeals would rule that protected disclosures must be made “to a supervisor or a
public body,” but that such disclosures may be made indirectly. Although Plaintiff has
sufficiently alleged that her disclosure of the Planned Use of Force email to Hannon was an
indirect disclosure to a public body for purposes of avoiding dismissal, Plaintiff has not provided
sufficient evidence for the Court to hold the same as a matter of law at this time. Plaintiff did not
advance any argument on this point in her opening memorandum, likely because she argued that
disclosures need only be made “to any person.” Pl.’s Mot. at 29 (quoting D.C. Code § 1-
615.52(a)(6)). In reply, Plaintiff states that “there is no dispute that SGT. JOHNSON made her
disclosure to attorneys at HANNON LAW GROUP for them to present the information to both
the Superior Court and to the District Court.” Pl.’s Reply at 4. But Plaintiff presents no
evidence in support, such as a citation to Defendants’ response to Plaintiff’s Statement of
Material Facts, to show a lack of dispute. This is therefore one reason to deny summary
judgment as to whether this disclosure was a protected disclosure.
9
If the Court instead construed Plainiff’s motion to be requesting summary judgment on
“all of SGT. JOHNSON’s disclosures,” Pl.’s Mot. at 29, her motion would similarly fail at least
because her Argument does not describe with any specificity which acts constitute “all of SGT.
JOHNSON’s disclosures.” The Court will not on its own attempt to divine arguments not
actually made by Plaintiff. Johnson v. Panetta, 953 F. Supp. 2d 244, 250 (D.D.C. 2013) (“[I]t is
not the obligation of this Court to research and construct the legal arguments available to the
parties. To the contrary, perfunctory and undeveloped arguments, and arguments that are
unsupported by pertinent authority, are deemed waived.” (internal quotation marks and citations
omitted)).
39
Second, Plaintiff has not provided sufficient undisputed evidence that she believed her
disclosure of this email evidenced at least one of the five statutory categories. Plaintiff argues
that due to “DOC’s deplorable response to the COVID-19 pandemic[,] . . . SGT. JOHNSON
could more than ‘reasonably believe’ that her disclosures were evidence of gross
mismanagement, violation of federal, state, or local law, rule or regulation, and/or substantial
danger to public health and safety.” Pl.’s Mot. at 29. In her Amended Complaint she alleges that
she forwarded the Planned Use of Force email to Hannon because she was “still genuinely
concerned about the health and safety of the inmates, Unit Members.” Am. Compl. ¶ 59. She
also alleged that her “disclosures evidence [the five statutory categories].” Id. ¶ 89. But none of
these affirmatively state that Plaintiff believed at the time of each disclosure that the information
in the disclosure evidenced at least one of those categories of information, even though the
gravamen of the Amended Complaint and this motion imply that that is her position and
Defendants do not specifically dispute this fact. See Freeman, 60 A.3d at 1143 (“[A]n employee
must have had such a belief at the time the whistle was blown in order to state a claim under the
DCWPA.”). Regardless, Plaintiff has not cited in her motion any evidence, such as an affidavit
from herself, from which a reasonable jury could conclude that she held such a belief at the time
of disclosure. Additionally, Defendants are largely unable to dispute this fact because they have
not had the opportunity to conduct discovery on this fact-specific question of belief. See
Coleman v. Allstate Ins. Co., 80 F. Supp. 3d 5, 8 (D.D.C. 2015) (“Summary judgment is
particularly inappropriate here where the parties have not yet engaged in discovery.”).
Third, Plaintiff has not shown that it is undisputed that her disclosure was “not
specifically prohibited by statute.” The only potential prohibitions on disclosing the email
discussed in the briefs are HIPAA and DOC confidentiality policies. For the reasons below,
40
Plaintiff has not shown a lack of genuine disputes of material fact such that she would be entitled
to judgment as a matter of law that her disclosure of the Planned Use of Force email was “not
specifically prohibited by statute.”
Regarding HIPAA, Defendants dispute Plaintiff’s assertion that the Planned Use of Force
email contained no medical information, presumably referring to “protected health information,”
the disclosure of which HIPAA forbids. Defs.’ Resp. Statement Material Facts ¶ 11, ECF No.
19-1. But neither party sufficiently analyzes the email’s contents and HIPAA case law to
persuade the court one way or the other. This would therefore be a disputed fact preventing
summary judgment if the dispute was material. But Plaintiff counters that even if the email
contained medical information protected from disclosure by HIPAA, there is a whistleblower
exception in HIPAA covering Plaintiff’s disclosure:
(a) Standard. A covered entity or business associate may not use or disclose
protected health information, except as permitted or required by this subpart or by
subpart C of part 160 of this subchapter.
....
(j)(1) Disclosures by whistleblowers. A covered entity is not considered to have
violated the requirements of this subpart if a member of its workforce or a
business associate discloses protected health information, provided that:
(i) The workforce member or business associate believes in good faith that
the covered entity has engaged in conduct that is unlawful or otherwise
violates professional or clinical standards, or that the care, services, or
conditions provided by the covered entity potentially endangers one or
more patients, workers, or the public; and
(ii) The disclosure is to:
(A) A health oversight agency or public health authority authorized
by law to investigate or otherwise oversee the relevant conduct or
conditions of the covered entity or to an appropriate health care
accreditation organization for the purpose of reporting the
allegation of failure to meet professional standards or misconduct
by the covered entity; or
41
(B) An attorney retained by or on behalf of the workforce member
or business associate for the purpose of determining the legal
options of the workforce member or business associate with regard
to the conduct described in paragraph (j)(1)(i) of this section.
45 C.F.R § 164.502;10 see Pl.’s Reply at 6–7 n.1. The application of this exception depends on at
least one question of material fact that Plaintiff has not sufficiently established—good-faith
belief that the disclosed information evidenced at least one of the above categories. The issue of
Plaintiff’s beliefs is discussed in more detail above, but the same infirmities there apply to
Plaintiff’s motion concerning the potential application of this HIPAA exception to Plaintiff’s
disclosure of the Planned Use of Force email. Plaintiff has therefore not established as a matter
of law that her disclosure met the above exception.
Regarding Defendants’ second argument that Plaintiff’s disclosure was “specifically
prohibited by statute”—that it was in violation of DOC confidentiality policies—Plaintiff argues
that “DOC Policy is not statute,” and that therefore DOC confidentiality policies are irrelevant.
Pl.’s Reply at 6. But Plaintiff cites no authority that agency policies or regulations promulgated
pursuant to statutory authority can never meet the “specifically prohibited by statute” standard.
The Court is not prepared to adopt such a restrictive interpretation at this time based on this
skeletal argument. Therefore, because “Defendants contend that the information in the email
was confidential and that they terminated Plaintiff for her unauthorized release of confidential
information,” Defs.’ Opp’n at 7, and because Plaintiff contends that “under no theory or DOC
policy is this email confidential,” Pl.’s Mot. at 30, there is a disputed issue of material fact.
10
Regarding the attorney-disclosure provision, a response to a comment in the Final Rule
states that “[w]orkforce members or business associates may not understand their legal options
or their legal exposure when they come into possession of information about unlawful or other
inappropriate or dangerous conduct. Permitting potential whistleblowers to consult an attorney
provides them with a better understanding of their legal options.” Standards for Privacy of
Individually Identifiable Health Information, 65 Fed. Reg. 82462, 82637 (Dec. 28, 2000).
42
2. Prohibited Personnel Action
Plaintiff also moves for summary judgment that Defendants took a prohibited personnel
action against her. As noted above, the DCWPA states that “[a] supervisor shall not take, or
threaten to take, a prohibited personnel action or otherwise retaliate against an employee because
of the employee’s protected disclosure.” D.C. Code § 1-615.53. “‘Prohibited personnel action’
includes but is not limited to: recommended, threatened, or actual termination, demotion,
suspension, or reprimand; involuntary transfer, reassignment, or detail; . . . or retaliating in any
other manner against an employee because that employee makes a protected disclosure or refuses
to comply with an illegal order . . . .” Id. § 1-615.52(a)(5)(A).
Plaintiff argues that because she was demoted, involuntarily transferred, and terminated
from her positions at DOC, she is entitled to summary judgment that Defendants took prohibited
personnel actions against her. Pl.’s Mot. at 31. Defendants do not dispute that Plaintiff was
“reassigned” and “dismiss[ed]” from her positions at DOC, Defs.’ Resp. Statement Material
Facts ¶¶ 14, 21, and do not specifically address this aspect of Plaintiff’s motion. Defendants’
only argument against granting summary judgment on this issue is a general objection that
summary judgment is currently premature. See Defs.’ Opp’n at 6–8.
The Court declines to grant summary judgment on this issue for two reasons. First,
Plaintiff did not address whether she must prove that a prohibited personnel action was taken
“because that employee makes a protected disclosure.” D.C. Code § 1-615.52(a)(5)(A). Second,
given that the underlying facts are not in dispute, the Court sees little benefit in granting
summary judgment on such a small segment of Plaintiff’s claim at this early stage of litigation.
43
3. Causation
Finally, Plaintiff moves for summary judgment on the causation elements of her DCWPA
claim. “A supervisor shall not take, or threaten to take, a prohibited personnel action or
otherwise retaliate against an employee because of the employee’s protected disclosure.” D.C.
Code § 1-615.53. The DCWPA employs a burden-shifting framework for litigating causation:
[O]nce it has been demonstrated by a preponderance of the evidence that an
activity proscribed by § 1-615.53 was a contributing factor in the alleged
prohibited personnel action against an employee, the burden of proof shall be on
the defendant 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.
D.C. Code § 1-615.54. “‘Contributing factor’ means any factor which, alone or in connection
with other factors, tends to affect in any way the outcome of the decision.” Id. § 1-615.52(a)(2).
The issue of causation is “[e]ssentially . . . measured under a ‘but for’ analysis.” Johnson v.
District of Columbia, 935 A.2d 1113, 1119 (D.C. 2007).
Plaintiff argues that she is entitled to summary judgment that “her protected disclosures
were a contributing cause of the prohibited personnel action” and that “there is no evidence that
the prohibited personnel action would have been taken absent her protected disclosures.” Pl.’s
Mot. at 31–32. She argues that because DOC listed her disclosures to Hannon as the justification
for her termination, and because she contends that those disclosures were protected disclosures,
that she is entitled to judgment as a matter of law that she would not have suffered the prohibited
personnel actions absent those protected disclosures. Id. Defendants agree “that they terminated
Plaintiff for her unauthorized release of confidential information,” but even crediting
Defendants’ statement, it is not clear which disclosures they argue formed the basis of Plaintiff’s
dismissal. See Defs.’ Opp’n at 7 (citing letter from Patten to Plaintiff, Defs.’ Opp’n Ex. 1, ECF
No. 19-2, which notes violations from forwarding the Planned Use of Force email to Hannon, id.44
at 2, as well as “various instances” of providing information to “external source(s),” id. at 4–5);
Defs.’ Resp. Statement Material Facts ¶ 16 (not disputing that “[t]he stated basis for the proposal
was SGT. JOHNSON’s forwarding certain email(s) to attorneys for the Union” (emphasis
added)). This ambiguity justifies denial of this segment of Plaintiff’s motion.
Additionally, even if Plaintiff and Defendants agreed that the alleged prohibited
personnel actions were caused by Plaintiff’s forwarding of the Planned Use of Force email, that
would not fully resolve the causation issue because the parties would be in disagreement about
whether the resulting violation of HIPAA or other agency rules caused the alleged prohibited
personnel actions, as Defendants contend, or whether other aspects of the forwarding of the
email, such as criticism of Defendants, caused the alleged prohibited personnel actions, as
Plaintiff contends. Because Plaintiff has not established as a matter of law based on undisputed
material facts that “her protected disclosures were a contributing cause of the prohibited
personnel action” or that “there is no evidence that the prohibited personnel action would have
been taken absent her protected disclosures,” Pl.’s Mot. at 31–32, Plaintiff’s motion for summary
judgment is denied regarding causation.
V. CONCLUSION
For the foregoing reasons, Defendants’ Partial Motion to Dismiss (ECF No. 6) is
DENIED as moot, Defendants’ Motion to Dismiss (ECF No. 10) is GRANTED IN PART
AND DENIED IN PART, and Plaintiff’s Motion for Partial Summary Judgment (ECF No. 11)
is DENIED. As explained above, only Plaintiff’s DCWPA claim (Count I) is dismissed in part,
and only to the extent that this claim is based on alleged protected disclosures through Plaintiff’s
participation in an unfair labor practice complaint and sixteen group grievances. See Am.
45
Compl. ¶¶ 87–88. An order consistent with this Memorandum Opinion is separately and
contemporaneously issued.
Dated: July 16, 2021 RUDOLPH CONTRERAS
United States District Judge
46