Lu v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
QING LU, )
)
Plaintiff, )
)
v. )
) Case No. 20-cv-00461 (APM)
DISTRICT OF COLUMBIA, et al., )
)
Defendants. )
_________________________________________ )
MEMORANDUM OPINION
I.
Plaintiff Qing Lu is an employee in the District of Columbia Department of Consumer and
Regulatory Affairs (“DCRA”). Beginning in June 2016 and over the next three years, Plaintiff
repeatedly accused her coworker, S.B., of fraudulently claiming eight weeks of paid paternity leave
based on his wife’s “fake” pregnancy. She first reported her belief to the D.C. Office of the
Inspector General (“OIG”). That same month, Plaintiff accused S.B. of ethics violations in issuing
permits to his wife’s company, despite admitting to not having proof. A few months later, OIG
referred Plaintiff’s fraudulent-leave allegations to DCRA, and in February 2017, DCRA found the
allegations were unsubstantiated. Despite the investigation’s findings, Plaintiff continued to
contact OIG and DCRA with “new evidence.” In May 2017, OIG informed Plaintiff that the
investigation was closed and “no further action was warranted.” A few days later, Plaintiff took
her complaints to the Board of Ethics and Government Accountability (“BEGA”). Plaintiff got
the same response from BEGA.
After not receiving the response she wanted from DCRA, OIG, or BEGA, Plaintiff wrote
to the Executive Office of the Mayor, three D.C. Councilmembers, and various media outlets,
including CNN, WTOP, NBC Universal, The Washington Post and The City Paper. She continued
to allege that S.B. submitted a fake birth certificate and that his wife wore a “fake pregnancy belly”
so that he could secure paternity leave. Plaintiff did so despite having no evidence to support her
claims, and in the face of investigations by the DCRA, OIG, and BEGA finding no cause for
disciplinary action against S.B.
S.B. complained to his supervisors about Plaintiff’s harassing conduct in November 2018,
accusing her of levying personal attacks over 10 years, including the fake pregnancy allegations.
After S.B.’s complaint, DCRA assigned Special Investigator Tyrone Lawson to investigate S.B.’s
claims. In February 2019, in the midst of Lawson’s investigation, Plaintiff repeated her allegations
to D.C. Mayor Muriel Bowser in person and via email.
Lawson conducted a three-month-long investigation, resulting in a 150-page report. The
investigation (“Lawson Report”) concluded that Plaintiff “routinely misrepresented and falsified
material facts” in her official complaints, was “insubordinate on numerous occasions,” “willfully
reported false or misleading information to her supervisors on several occasions,” and made false
statements during interviews in connection with the investigation. Defs.’ Mot. to Dismiss & for
Summ. J., ECF No. 79 [hereinafter Defs.’ Mot.], Ex. 1, ECF No. 79-1 [hereinafter “Lawson
Report”], at 2. Based on the Lawson Report, Defendant Sydney Lester (S.B. and Plaintiff’s
immediate supervisor) recommended a 10-day suspension of Plaintiff. Lester’s supervisor,
Defendant Clarence Whitescarver, agreed with the recommendation to suspend Plaintiff but
reduced the suspension to eight days. Plaintiff’s suspension was premised on the false and
misleading statements she made to the Mayor and her “assertion that the investigatory process
[was] flawed,” which had “an unacceptable impact toward degrading public confidence in the
2
conduct of the District government[] and its processes.” Defs.’ Mot., Ex. 4, ECF No. 79-4
[hereinafter Final Suspension Notice], at 3. After receiving the suspension, Plaintiff filed this suit.
Plaintiff brings claims under the District of Columbia Whistleblower Protection Act,
D.C. Code § 1-615.51, against the District of Columbia (“the District”) and the supervisors
responsible for imposing the suspension, Sydney Lester and Clarence Whitescarver (together,
“Defendants”). She also asserts violations of the First Amendment under 42 U.S.C. § 1983 against
Lester and Whitescarver. Before the court are Defendants’ motion for summary judgment and
Plaintiff’s partial motion for summary judgment. Defs.’ Mot.; Pl.’s Mot. for Partial Summ. J.,
ECF No. 77 [hereinafter Pl.’s Mot.].
As discussed below, Plaintiff has failed to bring forward sufficient evidence to support her
claims. Accordingly, Defendants’ motion for summary judgment is granted and Plaintiff’s partial
motion for summary judgment is denied.
II.
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.
56(a). A material fact is one that is capable of affecting the outcome of the litigation, and a
genuine dispute exists when “a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In assessing a motion for summary
judgment, the court looks at the evidence in the light most favorable to the nonmoving party and
draws all justifiable inferences in that party’s favor. Id. at 255.
“To defeat a motion for summary judgment, the non-moving party must offer more than
mere unsupported allegations or denials.” Dormu v. District of Columbia, 795 F. Supp. 2d 7, 17
(D.D.C. 2011). Its opposition must be “supported by affidavits, declarations, or other competent
3
evidence, setting forth specific facts showing that there is a genuine issue for trial.” Elzeneiny v.
District of Columbia, 125 F. Supp. 3d 18, 28 (D.D.C. 2015). Summary judgment, then, is
appropriate when the nonmoving party fails to offer “evidence on which the jury could reasonably
find for the [nonmovant].” Anderson, 477 U.S. at 252.
III.
A.
The court starts with Plaintiff’s § 1983 claims. Pl.’s Original Compl., ECF No. 1
[hereinafter Compl.], ¶¶ 11, 13. Plaintiff alleges that Defendants 1 violated her First Amendment
rights when they suspended her for reporting “her belief that S.B. committed benefit[s] fraud.”
Compl. ¶ 18.2. Defendants respond that Plaintiff’s speech is about a “personnel workplace
dispute,” and not a matter of public concern, and therefore does not enjoy constitutional protection;
they also argue that the First Amendment does not protect “false statements about verifiable facts.”
Defs.’ Mot. at 52–53. Even if the speech is protected, Defendants continue, they had “adequate
justification to suspend [Plaintiff] for eight (or ten) days based on the District’s needs as an
employer.” Id. at 56 (cleaned up).
It is well established “that a state cannot condition public employment on a basis that
infringes the employee’s constitutionally protected interest in freedom of expression.” Connick v.
Myers, 461 U.S. 138, 142 (1983). However, “[w]hen a citizen enters government service, the
citizen by necessity must accept certain limitations on his or her freedom” because “[g]overnment
employers, like private employers, need a significant degree of control over their employees’
words and actions; without it, there would be little chance for the efficient provision of public
services.” Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). The Supreme Court has made clear
1
With respect to the court’s discussion of Plaintiff’s § 1983 claims, “Defendants” refers only to Lester and
Whitescarver. Plaintiff has not brought a § 1983 claim against the District.
4
that the government, as an employer, has broader powers than the government has as a sovereign.
Waters v. Churchill, 511 U.S. 661, 671–72 (1994). However, because “a citizen who works for
the government is nonetheless a citizen,” the Court has held that if “employees are speaking as
citizens about matters of public concern, they must face only those speech restrictions that are
necessary for their employers to operate efficiently and effectively.” Garcetti, 547 U.S. at 419.
“As a general matter, Pickering [v. Board of Education, 391 U.S. 563 (1968)] and its
progeny continue to be the meter by which the First Amendment rights of public employees are
measured.” Baumann v. District of Columbia, 795 F.3d 209, 215 (D.C. Cir. 2015) (internal
quotations omitted). The D.C. Circuit uses a “four-element test to determine whether a public
employee has established a claim of retaliation in violation of his First Amendment rights.”
LeFande v. District of Columbia (LeFande II), 841 F.3d 485, 493 (D.C. Cir. 2016).
To survive summary judgment, Plaintiff must proffer sufficient evidence to show that:
“(1) [she spoke] as a citizen on a matter of public concern; (2) [her] interest in speaking on matters
of public concern . . . outweigh[s] the government’s interest in promoting efficiency; (3) [her]
protected speech [was] a substantial or motivating factor in prompting the retaliation; and (4) the
government must be unable to show that it would have reached the same decision absent the
protected speech.” Id. at 494. “The first two elements involve questions of law” for the court to
resolve, and the “second two implicate questions of fact.” Id. Because the court finds in
Defendants’ favor as a matter of law on the first two elements, it does not reach the third and
fourth.
1.
Private Citizen Speaking on a Matter of Public Concern. “Whether an employee’s speech
addresses a matter of public concern must be determined by the content, form, and context of a
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given statement, as revealed by the whole record.” Connick, 461 U.S. at 147–48. The overall
inquiry is whether the “objective of the speech—as determined by content, form, and context—
was to bring wrongdoing to light or to further some purely private interest.” Kubiak v. City of
Chicago, 810 F.3d 476, 483 (7th Cir. 2016) (internal quotation marks omitted).
Content. Content is “the greatest single factor in the Connick inquiry.” Desrochers v. City
of San Bernardino, 572 F.3d 703, 710 (9th Cir. 2009) (internal quotation marks omitted). Speech
is not of public concern when it “deals with individual personnel disputes and grievances
and . . . the information would be of no relevance to the public’s evaluation of the performance of
governmental agencies.” LeFande v. District of Columbia (LeFande I), 613 F.3d 1155, 1159 (D.C.
Cir. 2010) (internal quotation marks omitted). “On the other hand, speech that concerns issues
about which information is needed or appropriate to enable members of society to make informed
decisions about the operation of their government merits the highest degree of first amendment
protection.” Id. (internal quotation marks omitted). The “public interest is near its zenith when
ensuring . . . that public funds are not purloined or wasted.” Handy-Clay v. City of Memphis, 695
F.3d 531, 543 (6th Cir. 2012) (internal quotation marks omitted).
Plaintiff argues that her speech regarding “an employee’s fraudulently obtaining payment
from the District” is a matter of public concern because it brings “official misconduct to light.”
Pl.’s Opp’n to Defs.’ Mot., ECF No. 87 [hereinafter Pl.’s Opp’n], at 26–27 (internal quotation
marks omitted). According to Plaintiff, the fact that multiple District agencies investigated S.B.’s
paternity leave application and found nothing wrong “does not make [her] disclosures any less of
[a] public interest.” Id. at 28. Defendants, for their part, argue that “the First Amendment does
not protect statements that express or imply a verifiably false fact,” and that Plaintiff was “not
speaking on a matter of public concern because she was making demonstrably false and misleading
6
statements about facts that had been repeatedly verified for her” by the DCRA, OIG, and BEGA.
Defs.’ Mot. at 52, 54 (internal quotation marks omitted).
Defendants’ argument that Plaintiff’s speech does not touch on a matter of public concern
because it is demonstrably false or misleading is unavailing. Other than intentionally or recklessly
false statements, “truthfulness . . . is not relevant in determining whether the speech involves a
matter of public concern.” Westmoreland v. Sutherland, 662 F.3d 714, 720 (6th Cir. 2011).
Defendants do not argue Plaintiff’s statements were intentionally or recklessly false. Because
Plaintiff’s speech concerned whether “public funds are . . . purloined or wasted,” Handy-Clay, 695
F.3d at 543, and is at least nominally related to the “public’s evaluation of the performance of
governmental agencies,” LeFande I, 613 F.3d at 1159, the content factor weighs in Plaintiff’s
favor.
Form. The form factor considers to whom the speech was communicated. A “limited
audience weighs against a claim of protected speech,” Desrochers, 572 F.3d at 714 (cleaned up),
and speech is more likely to be considered public if communicated to the press, as opposed to an
internal-employee-grievance process. See, e.g., Kubiak, 810 F.3d at 483 (“The fact that
[Plaintiff’s] complaints about [her coworker] were directed up the chain of command suggests that
[Plaintiff’s] speech did not address a matter of public concern.”). Plaintiff’s complaints were
largely “directed up the chain of command,” but she also contacted local politicians and news
outlets to share her concern about S.B.’s alleged abuse of parental leave and the resulting misuse
of public funds. Defs.’ Mot. at 2–3, 41. The form factor of the Connick inquiry thus weighs in
Plaintiff’s favor. Cf. Desrochers, 572 F.3d at 718 (finding no public concern where the “subject
matter of the speech before us at best relates only marginally to issues of public concern, the
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grievances were motivated by a personal dispute, and the [plaintiffs’] concerns were never relayed
to the press or the public” (internal quotation marks omitted)).
Context. Regarding the context of Plaintiff’s speech, the inquiry is whether Plaintiff spoke
to “bring to light actual or potential wrongdoing” or whether the speech is more “accurately
characterized as an employee grievance.” Connick, 461 U.S. at 148, 154. Despite Plaintiff’s
insistence that her speech was directed at bringing S.B.’s wrongdoing to light, the record tells a
different story. There is substantial evidence that leads the court to find that Plaintiff’s actions
were rooted more in a long-standing personal grievance than in bringing malfeasance to light. This
finding requires an extended discussion of the facts.
Plaintiff’s accusations began as early as June 2016, when she wrote to OIG that she
suspected that S.B.’s “baby story [was] a fiction” because his wife had “no . . . noticeable
pregnancy on her body” the month before S.B. took paternity leave. 2 Lawson Report at 65, 68. 3
Plaintiff expressed her belief that S.B. was facing “a serious offense [which] may lead to prison
time” (speeding and driving with a suspended license) that was scheduled for trial during his
paternity leave, and that this timing somehow was “consisten[t] with [her] speculation that the
baby setup could be a fraud.” Id. at 66–68. In other words, Plaintiff speculated that S.B. made up
his wife’s pregnancy and the need for paternity leave in order to serve jail time without tipping off
his employer.
In August 2016, Plaintiff emailed DCRA accusing S.B. of improperly assigning permits to
his wife’s company, noting “the possibility of conflict of interest and the extreme self-serving
intentions.” Defs.’ Mot, Ex. 5, ECF No. 79-5 [hereinafter Defs.’ Ex. 5], at 9. That month, Lester
2
Plaintiff alleged S.B.’s wife faked two pregnancies, one early in 2015 and one in May 2016. Lawson Report at 58.
3
Quotes from the Lawson Report reference direct statements made by Plaintiff. The court uses ECF pagination for
all Exhibits.
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emailed Plaintiff, noting that “for several years . . . you have made several allegation[s] about the
conduct of” S.B. that have become “more serious as time progressed,” and the recent ethics-
permitting allegations had “legal implications that cannot be ignored.” Lawson Report at 60.
Lester informed Plaintiff that there was “no evidence to conclude any wrong doing [sic],” and
asked her to present “proof that backs up [her] allegations.” Id. Plaintiff agreed to provide
evidence, but when the two met Plaintiff instead demanded Lester provide evidence, asking “what
information have you provided to draw [the] conclusion that there was no . . . wrong doing [sic]?”
Id. at 58. In September 2016, Plaintiff emailed two other DCRA employees complaining about
Lester’s response to her ethics complaint, lamenting that “even [if] I [was] not able to present any
proof immediately – due to my position in the organization and limited access to certain
information – that still does not mean the problem was not in existence,” and that Lester “should
have been the one to search for and locate the problem.” Id. In December 2016, S.B. was fined
$1,000 for the seemingly less serious violation of “[taking] official action on permit applications
submitted by his spouse, on behalf [of] her company.” Pl.’s Mot., Pl.’s App’x, ECF No. 77-2, at
23–26.
Meanwhile, Plaintiff continued to accuse S.B. of benefits fraud. In October 2016, OIG
referred the fake-pregnancy complaint to DCRA to investigate. Lawson Report at 56. In February
2017, Plaintiff emailed DCRA asking for an update on whether her allegations had been
“substantiated, unsubstantiated, [or found] inconclusive.” Id. at 62. DCRA notified Plaintiff that
month that the investigation had “come to an end,” and for a moment Plaintiff seemed to accept
this conclusion, writing that “there will [be] no more communications from me on this matter.”
Id. at 64. However, soon after, Plaintiff emailed DCRA with new evidence that she hoped would
“provide[] some new perspective.” Id. at 74. It did not. Id. (“This has not provided any new
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perspective[;] the agency has confirmed all required documentation needed for an approval [of
parental leave.]”).
Undeterred, the next month, March 2017, Plaintiff sent a four-page email with six
attachments to OIG , demanding to see S.B.’s child’s birth certificate. Defs.’ Mot, Ex. 7, ECF No.
79-7 [hereinafter Defs.’ Ex. 7], at 2, 4. On May 10, 2017, OIG informed Plaintiff that they
“conducted an independent analysis of the documentation provided by [DCRA] and determined
that no further action by the OIG is warranted.” Id. at 15.
Plaintiff did not accept that answer. Six days later she filed a complaint with BEGA,
alleging that S.B. “abused his Paid Family Leave by purchasing, or forging, a document to deceive
the government about the birth of his daughter.” Lawson Report at 83. In July, BEGA informed
Plaintiff that “[a]fter an interview with [S.B.] and a review of relevant documents obtained by
BEGA investigators, there [was] insufficient evidence to support a reasonable belief that a
violation of the Code of Conduct occurred.” Id. In September, DCRA Human Resources
confirmed that DCRA, OIG, and BEGA investigated Plaintiff’s concerns and “they could not find
any cause for the agency to take disciplinary action against [S.B.],” and told Plaintiff to “consider
this the final response on behalf of the agency as the matter has been investigated and deemed
closed.” Id. at 90.
At this point, Plaintiff had been informed by three government agencies that, after an
investigation and review of records, her allegations were unsubstantiated. But that did not dissuade
her. Plaintiff wrote to the Executive Office of the Mayor (“EOM”) in September 2017. Id. at 95.
Shortly after, EOM responded that the matter had been investigated and “no further action [would
be] taken.” Id. at 98. Still, Plaintiff continued to raise the same allegations to DCRA, OIG, and
BEGA over the next two years. See, e.g., id. at 113–118. During this time, she also contacted the
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media about S.B.’s alleged fake pregnancy scheme. See, e.g., id. at 119–20, 128–29. In October
2018, Plaintiff took her allegations to the D.C. Council. See id. at 135–144; Defs.’ Mot., Ex. 3,
ECF No. 79-3, at 32. S.B filed a complaint with his supervisors in November 2018. Lawson
Report at 2–3.
In February 2019, after S.B.’s complaint, Plaintiff took her accusations to the highest-
ranking District of Columbia official: Mayor Bowser. During a visit by the Mayor, Plaintiff
approached her and the Acting DCRA Director in person and told them that S.B. “took eight weeks
[of] government paternity leave without having a baby” and his “wife likely was wearing a pillow
underneath her clothes.” Defs.’ Mot., Ex. 12, ECF No. 79-12 [hereinafter “Lu Deposition”], at
7:22–8:3. The next day, Plaintiff emailed Mayor Bowser and the Acting DCRA Director repeating
her claims about “a paternity fraud that has been going on for almost 3 years” and accusing
government officials of using “their official power to make this crime go away.” Lawson Report
at 146–47. These contacts came more than two-and-a-half years after her initial complaint.
Despite making repeated allegations of wrongdoing over the course of years, Plaintiff never
once supported any of them with evidence. Instead, she continued to demand that the agencies
investigate and produce evidence to confirm her mere suspicion that S.B.’s wife faked her
pregnancy. See, e.g., Defs.’ Ex. 7 at 3 (stating on March 5, 2017, “I have sensed [a] very evident
unwillingness of my agency to take any initiative to investigate and to request any new proof”);
id. at 2 (same email demanding that DCRA “verify [S.B.’s] medical insurance statement to see if
there is a statement for induced labor, and also request[] him to submit [a] government issued Birth
Certificate” (internal quotation marks omitted)).
Given this extensive record, the court believes the context factor weighs heavily in
Defendants’ favor. It is clear that, however valid Plaintiff’s initial report of her concerns might
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have been, over time her speech related primarily to a personal grievance with S.B. and actually
“concerned a private issue.” See Kubiak, 810 F.3d at 484.
Weighing of Factors. Evaluating the content, form, and context of Plaintiff’s speech, the
court holds that these factors tip in favor of treating Plaintiff’s speech as a matter of public concern.
Although the court finds that Plaintiff’s speech ultimately related to a personal vendetta, her motive
“is relevant as part of the context in which the speech was made,” but it is not dispositive of the
inquiry. Id. at 483. The Sixth Circuit’s decision in Handy-Clay supports this conclusion. There,
the plaintiff similarly alleged that city employees were abusing city leave and payment policies.
Handy-Clay, 695 F.3d at 536. The plaintiff repeatedly raised her concerns “about corruption and
malfeasance in the City Attorney’s Office” to the City Attorney, the Senior Legal Attorney, the
acting Deputy City Attorney, the Chief Administrative Officer, a city payroll employee, and a city
councilman. Id. at 536–37. No action was taken in response, but plaintiff “nevertheless continued
to contact” the City Attorney and various employees in the Mayor’s office “regarding her
suspicions” that city employees were abusing leave policies and requested an investigation. Id. at
537. Plaintiff was fired. She then sued the City for retaliation in violation of, amongst other things,
her First Amendment rights. Id. The district court dismissed her First Amendment claim, finding
that plaintiff was not speaking on a matter of public concern because her complaint “had the ring
of internal office politics.” Id. at 543 (cleaned up). The Sixth Circuit reversed, explaining that the
“district court should have looked not at the motivation for speaking but at the content of the
speech.” Id. at 543–44. The court held that, even if the plaintiff was partially motivated by
personal grievances, her “communications alleging corruption and mismanagement by public
employees . . . [constituted] speech on a matter of public concern.” Id. at 544. So, too, here.
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Defendants argue that “Plaintiff’s years long effort to get someone to develop proof of her
allegations that her coworker made up a daughter to obtain parental leave is . . . a personnel
workplace dispute.” Defs.’ Mot. at 52. This court generally agrees. However, a public employee
can still be speaking on a matter of public concern even if they were motivated by personal
grievances in addition to the public concern. See Chappel v. Montgomery Cty. Fire Protection
Dist. No. 1, 131 F.3d 564, 574 (6th Cir. 1997) (“[T]he argument that an individual’s personal
motives for speaking may dispositively determine whether that individual’s speech addresses a
matter of public concern is plainly illogical and contrary to the broader purposes of the First
Amendment.”); Montery v. City of Yonkers, 890 F.3d 386, 400 (2d Cir. 2018) (reaffirming that an
“individual motivated by a personal grievance can simultaneously speak on a matter affecting the
public at large”).
Although the court finds that Plaintiff was speaking on a matter of public concern, her First
Amendment interest in the speech ultimately was “limited.” Connick, 461 U.S. at 154. The
Supreme Court’s decision in Connick is instructive. There, the plaintiff distributed a questionnaire
to colleagues regarding her supervisors and certain office policies. The Court found only one
question was related to a matter of public concern, and thus Plaintiff’s speech “touched upon
matters of public concern in only a most limited sense” and was actually more “accurately
characterized as an employee grievance concerning internal office policy.” Id. The Court
explained that the limited First Amendment interest did not require her employer to “tolerate action
which he reasonably believed would disrupt the office, undermine his authority, and destroy close
working relationships.” Id. The Court cautioned that “a stronger showing may be necessary if the
employee’s speech more substantially involved matters of public concern.” Id. at 152. Plaintiff
in this case enjoys a limited First Amendment interest for the same reasons. Though touching on
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a matter of public concern, Plaintiff’s speech over time about a single employee’s alleged benefits
fraud primarily took on the character of a personal grievance against S.B. Plaintiff was not
complaining about systemic violations by her employer; rather, her “whistleblowing” amounted
to a multi-year, dogged effort to hold a single employee accountable for an alleged fraud for which
she never produced any evidence and which no investigation found substantiated. Her First
Amendment interest in her speech therefore was “limited.”
2.
Pickering Balancing Test. The second prong of the Pickering test requires courts to
“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.” Bowie v. Maddox, 642 F.3d 1122, 1133 (D.C. Cir. 2011). The
analysis “involves a sliding scale, in which the amount of disruption a public employer has to
tolerate is directly proportional to the importance of the disputed speech to the public.” Munroe
v. Cent. Bucks Sch. Dist., 805 F.3d 454, 472 (3d Cir. 2015) (internal quotation marks omitted);
see, e.g., Connick, 461 U.S. at 150 (“Pickering unmistakably states . . . that the state’s burden in
justifying a particular discharge varies depending upon the nature of the employee’s expression.”);
Hernandez v. City of Phoenix, 43 F.4th 966, 977 (9th Cir. 2022) (“The more substantially an
employee’s speech involves matters of public concern, the weightier the government employer’s
interests must be in preventing disruption of the workplace or impairment of the employer’s
mission.”); Miller v. Clinton County, 544 F.3d 542, 548 (3d Cir. 2008) (“The balancing we must
undertake is a fact-intensive inquiry . . . and must yield different results depending on the relative
strengths of the issue of public concern and the employer’s interest.”).
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The inquiry is “whether the statement impairs discipline by superiors or harmony among
co-workers, has a detrimental impact on close working relationships for which personal loyalty
and confidence are necessary, or impedes the performance of the speaker’s duties or interferes
with the regular operation of the enterprise.” Rankin v. McPherson, 483 U.S. 378, 388 (1987)
(citing Pickering, 391 U.S. at 570–573). The government employer needs to articulate some threat
to maintaining discipline and harmony. See Wainscott v. Henry, 315 F.3d 844, 852 (7th Cir. 2003)
(finding Pickering balancing test weighed in employee’s favor when employer’s reasoning
“fail[ed] to persuade [the court] that a potential threat to discipline or harmony exists”). However,
“a showing of actual disruptiveness is not required; a government employer is allowed to consider
the potential disruptiveness of the employee’s speech.” Baumann, 795 F.3d at 217; see Connick,
461 U.S. at 152.
Defendants argue that “resisting your employer’s repeated independent determinations that
your coworker submitted sufficient documentation to qualify for parental leave both impairs
discipline and interferes with the regular operation of the enterprise, and that making allegations
directly to your coworker that his wife did not give birth to a daughter for whom he took parental
leave . . . impairs harmony among coworkers.” Defs.’ Mot. at 54 (cleaned up). Plaintiff responds
that she “was disciplined not based on allegations of harassment, but because she was deemed to
have lied to [Mayor Bowser] on February 5 and 6, 2019,” and argues that there is no evidence that
the Executive Office of the Mayor (“EOM”) was disrupted by Plaintiff’s comments. Pl.’s Opp’n
at 29.
Plaintiff’s argument misses the mark. First, Plaintiff’s view of the reasons for her
suspension is too myopic. To be sure, the disciplinary charge for which she was held responsible
was “knowingly and willfully report[ing] false or misleading information or purposely omit[ing]
15
material facts to a supervisor,” namely, the Mayor. Final Suspension Notice at 1. But
Whitescarver made that determination based on the whole body of her conduct, including her
harassment of S.B. Whitescarver said that his decision to discipline Plaintiff was based upon,
among other things, “a full review of the supporting documentation” of the suspension
recommendation by Plaintiff’s immediate supervisor, Lester. Id. Lester’s recommendation in turn
referenced the 150-page Lawson Report and its numerous exhibits. Defs.’ Mot, Ex. 2., ECF No.
79-2, at 1–3. Whitescarver therefore was aware of Plaintiff’s full history of making baseless
allegations against S.B.
Moreover, in finding that Plaintiff had been untruthful or misleading to the Mayor,
Whitescarver found that Plaintiff willfully “obfuscate[d]” the truth by failing to disclose the
“variety of District agencies, officials, supervisors, and investigator(s)” that had notified her “the
matter had been investigated and closed without having identified an incident of fraud or leave
abuse by the alleged perpetrator, Mr. [S.B.].” Final Suspension Notice at 2. Whitescarver’s
decision, by referencing the findings of no wrongdoing by multiple investigations and Plaintiff’s
refusal to accept them, therefore necessarily rested on the entirety of Plaintiff’s actions. Id. (“Your
responses also indicate that you have not fully conceded to the conclusions of the investigations
or supervisory direction provided to you in this case.”). Her suspension therefore was not simply
about the single incident with the Mayor.
Second, the question is whether the harmony in Plaintiff’s workplace was impaired, not
whether the harmony at EOM was impaired. And, as to her workplace, the employer need not
prove “actual disruptiveness,” a showing of the “potential disruptiveness of the employee’s
speech” is sufficient. Baumann, 795 F.3d at 217. And on that score, the Supreme Court has said
courts generally must defer to the employer’s assessment of the impact of an employee’s behavior
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on the workplace. Waters, 511 U.S. at 673 (“[W]e have consistently given greater deference to
government predictions of harm used to justify restriction of employee speech than to predictions
of harm used to justify restrictions on the speech of the public at large.”). Here, Whitescarver
justified Plaintiff’s suspension based on the adverse workplace consequences of her conduct.
Among other things, he found: (1) “[t]he offenses are serious and do impair operational
efficiency”; (2) Plaintiff’s use of “work time” to continue to make baseless allegations of fraud
and abuse demonstrated an “apparent disregard to the adverse effect in the workplace for [her]
actions,” which was an “aggravating factor”; (3) “persistent, unsubstantiated allegations of
impropriety on the part of an agency employee, together with an assertion that the investigatory
process is flawed due to findings that do not support your allegations does have an unacceptable
impact toward degrading public confidence in the conduct of the District government[] and its
processes”; and (4) the suspension “will impress upon her the need for her to stop engaging in
making false statements about her coworkers.” Final Suspension Notice at 2–3. The court must
give “substantial weight to [Whitescarver’s] reasonable predictions of disruption, even when the
speech involved is on a matter of public concern.” Waters, 511 U.S. at 673.
There is also ample record evidence to support Whitescarver’s assessments. S.B.
eventually complained to the former Chief Administrative Officer, Walter Crawford, copying
Lester and Deputy Chief Building Official Christopher Bailey. Lawson Report at 2. S.B. called
Plaintiff’s “direct accusations that [his] wife faked her pregnancy so that [he] could get family
leave” “slanderous” and “unbearable,” and he accused Plaintiff of “creat[ing] a hostile work
environment.” Id. at 3. The record shows Plaintiff interrupted work meetings to ask questions
like “how do we handle another employee using their wife with a fake belly to fake a pregnancy
and then the father requesting family leave?” Id. at 37. Plaintiff left print outs of Google searches
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of “fake pregnancy” in the office for S.B. to find. Id. at 40. Plaintiff confronted S.B. in the
workplace about his wife allegedly faking a pregnancy. Id. at 36. If “a government employer can
intervene before an employee’s speech actually disrupts the functioning of an office,” they can
certainly intervene after the speech causes disruption. LeFande II, 841 F.3d at 494 (emphasis
added). Additionally, Connick explained that the “manner, time, and place” in which speech is
delivered matters. Connick, 461 U.S. at 153. The fact that Plaintiff primarily “exercised her rights
to speech at the office supports [the District’s] fears that the functioning of [the] office was
endangered.” Id.Furthermore, factors that are irrelevant to the public concern inquiry, such as tone and
truthfulness, are relevant at the second prong of the Pickering balancing test. The “inappropriate
tone of the speech . . . could play a critical role in ascertaining the existence and likelihood of
disruption,” because comments are more likely to “impair discipline or employee harmony if they
are phrased in less elevated—and more opprobrious—terms.” Munroe, 805 F.3d at 457 (internal
quotation marks omitted). Additionally, “the truthfulness of [an employee’s] statements may be
relevant . . . in striking the appropriate balance between the employee’s right to free speech and
the employer’s interest in efficient administration.” Westmoreland, 662 F.3d at 721.
Both of these factors weigh in Defendants’ favor. Plaintiff’s disdain for S.B. and her
supervisors is evident in her testimony and emails to the various government agencies she enlisted
in investigating S.B. Plaintiff testified that she “firmly believe[s] [that S.B. is] dishonest,” showing
that her persistence in making allegations was, at least in part, a product of her animosity towards
S.B. Lu Deposition at 143:6. In emails, she wrote that S.B. has “deep character problems,
especially his unhealthy attitude towards money and extreme selfishness.” Defs.’ Ex. 5 at 6.
Plaintiff’s tone throughout the record appears “opprobrious” and even she acknowledged that she
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“sounds crazy.” Lawson Report at 72–73. Plaintiff accused DCRA of “deliberately avoiding
finding the truth by NOT verifying the document [SB] provided,” and of “not only negligen[ce]
but also abus[ing] the system.” Id. at 94. In her email to Mayor Bowser, Plaintiff accused DCRA,
OIG, BEGA, and DCHR of “work[ing] together to use their governmental official power to make
this crime go away” and using “each other’s negligence to defend their own negligence.” Lawson
Report at 146–47.
With respect to truthfulness, DCRA, OIG, and BEGA investigated Plaintiff’s complaints,
and found insufficient evidence to suggest S.B. and his wife had faked a pregnancy. See supra
pp. 9–10. “[A]n employer may defeat a First Amendment retaliation claim if supervisors
reasonably believed, after an adequate investigation, that [the employee’s] testimony was false,
even if it actually was true.” Swetlik v. Crawford, 738 F.3d 818, 828–29 (7th Cir. 2013) (finding
“the defendants were justified in bringing termination charges against [the plaintiff] on the basis
of the[ir] investigation report” (internal quotation marks omitted)). Swetlik is not binding on this
court; however, the reasoning is persuasive here. Plaintiff’s allegations were investigated by the
DCRA, OIG, and BEGA. Lawson Report at 98. None substantiated Plaintiff’s allegations. Even
taking all inferences in Plaintiff’s favor, this court finds Defendants “genuinely and reasonably
believed, based on an adequate investigation” by three government agencies that Plaintiff’s
allegations were false. Swetlik, 738 F.3d 828.
In performing the balancing, courts must consider whether the challenged government
action is tailored to address the harm that the government allegedly aims to protect. Baumann,
795 F.3d at 216. The government bears the burden of justifying its adverse-employment action.
Id. Plaintiff was suspended for 10 days following the Lawson Report, and her suspension was
eventually reduced to eight days. Final Suspension Notice at 3–4. This court thinks the challenged
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government action (Plaintiff’s eight-day suspension) was tailored to address the harm (impaired
harmony amongst coworkers, disrupted workplace, and damage to public confidence) that the
District aimed to protect. Final Suspension Notice at 3–4 (“It is with cautious optimism that a
reduction in suspension time has been decided. However, it is also noteworthy that, according to
your records, your behavioral corrections in this matter in the past are often short-lived, limiting
the scope of the suspension reduction to ensure that a lasting behavioral correction will ensue.”).
For the reasons stated above, the court finds that “[t]he personal context in which
[Plaintiff’s complaint’s] arose, in addition to the tangential connection between the issues of public
concern and the overall thrust of [her complaints] so minimizes any public concern in the subject
of her expression as to tip the First Amendment balance in favor of her employer,” Miller, 544
F.3d at 551, and that the suspension was a “speech restriction . . . necessary for [DCRA] to operate
efficiently and effectively.” Garcetti, 547 U.S. at 419.
The court grants Defendants summary judgment motion with respect to Plaintiff’s § 1983
claims. It therefore need not reach the argument that Lester and Whitescarver enjoy qualified
immunity. Defs.’ Mot. at 60.
B.
The court now turns to Plaintiff’s District of Columbia Whistleblower Protection Act
(“DCWPA”) claim. The DCWPA prohibits supervisors from “threaten[ing] to take or tak[ing] a
prohibited personnel action or otherwise retaliat[ing] against an employee because of the
employee’s protected disclosure.” D.C. Code § 2-223.02(a) (2020). The DCWPA defines a
“protected disclosure” to include:
any disclosure of information, not specifically prohibited by statute,
by an employee to a supervisor or to a public body that the employee
reasonably believes evidences: (A) Gross mismanagement in
connection with the administration of a public program or the
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execution of a public contract; (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.”
Id. § 2-223.01(7).
A plaintiff asserting a DCWPA claim must make a prima facie case “[1] that he made a
protected disclosure, [2] that a supervisor retaliated or took or threatened to take a prohibited
personnel action against him, and [3] that his protected disclosure was a contributing factor to the
retaliation or prohibited personnel action.” Baumann, 795 F.3d at 219. If a plaintiff establishes a
prima facie case, the burden shifts to the employer to “prove by clear and convincing evidence that
the alleged action would have occurred for legitimate, independent reasons even if the employee
had not engaged in activities protected by [the DCWPA].” Coleman v. District of Columbia, 794
F.3d 49, 54 (D.C. Cir. 2015).
To qualify as protected whistleblowing, the complaint must disclose “such serious errors
by the agency that a conclusion the agency erred is not debatable among reasonable people.” Id.
at 53. “At the summary judgment stage, the central question is whether a reasonable juror with
knowledge of the essential facts known to and readily ascertainable by the employee could find
that the employee disclosed an objectively serious governmental act of gross mismanagement,
gross misuse or waste of public funds, abuse of authority, a material violation of local or federal
law, or a substantial and specific danger to public health and safety.” Id. at 58 (cleaned up).
Whether the employee made a protected disclosure is often a “fact specific inquiry.” Id.Plaintiff’s Complaint alleges violations of the DCWPA based on gross misuse of public
funds, abuse of authority, and violation of a federal, state, or local law. Compl. ¶¶ 32–34.
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Defendants argue that Plaintiff did not make a protected disclosure because “she never had a
reasonable belief” that she was reporting serious government misconduct. Defs.’ Mot. at 63.
Plaintiff responds that the DCWPA does “not require proof that a disclosure is factually accurate
for it to be granted protection.” Pl.’s Opp’n at 3. The court agrees with Plaintiff that the disclosure
does not need to be proven factually accurate to get DCWPA protection; however, the belief has
to be reasonable, and Plaintiff’s belief falls short of any measure of reasonableness.
Gross Misuse of Public Funds. The term “gross misuse of funds” refers to “a more than
debatable expenditure that is significantly out of proportion to the benefit reasonably expected to
accrue to the government.” District of Columbia v. Poindexter, 104 A.3d 848, 857 (D.C. 2014).
Plaintiff argues that the government would suffer “a loss from S.B.’s absence, while he got two
months of paid leave for a non-existent child.” Pl.’s Opp’n at 43. Fair enough, if true. But the
court agrees with Defendants that “there is no legally significant evidentiary basis for a reasonable
jury to conclude” that S.B. was obtaining parental leave through fraud and forgery. Defs.’ Mot. at
64. Over the course of years, Plaintiff failed to proffer any actual evidence that S.B. was abusing
his paternity leave; yet she continued to accuse him of wrongdoing despite at least three
investigations finding none. Plaintiff testified that she never personally observed S.B.’s wife
“wearing a pillow under her shirt” and did not know anyone who had. Lu Deposition at 15:19–
19:9. Plaintiff told DCRA that she could “sense something [was] wrong” and that she “figured
[S.B.] may have submitted forged document[s] but I certainly have no proof myself.” Defs.’ Mot.,
Ex. 6, ECF No. 79-6. The lack of evidence is fatal to Plaintiff’s DCWPA claim based on the
misuse of public funds. No reasonable jury could find that Plaintiff held a reasonable belief that
she was exposing a “gross misuse of funds.”
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The D.C. Court of Appeals’ decision in Poindexer supports this conclusion. In Poindexter,
the plaintiff argued that she had made a protected disclosure on the basis of a gross misuse of
public funds because she had “reason to believe” two coworkers “were being paid for time and
work they were not performing, and thus ‘stealing time from the government’ by not accurately
reporting their hours on the sign-in sheet.” Poindexer, 104 A.3d at 857. The Court of Appeals
found that this did not constitute “gross misuse of funds” because plaintiff “failed to proffer any
evidence showing that [her coworkers] falsified their official time and attendance records
submitted to the OCP timekeeper,” and therefore “there was no legally sufficient evidentiary basis
for a reasonable jury to conclude that appellee’s evidence showed a ‘protected disclosure’ on this
basis.” Id. The same is true here.
Abuse of Authority. Under the DCWPA, a claimed abuse of authority must be “in
connection with the administration of a public program or the execution of a public contract.”
D.C. Code § 2-223.01(7)(C). Plaintiff argues that S.B. abused his authority by committing fraud
and abusing “his position as a D.C. employee to wrongly benefit himself without a valid basis or
benefit to the government.” Pl.’s Opp’n at 43. Defendants argue there is “absolutely no basis to
conclude that S.B. abused his authority by applying for parental leave or that anyone gave
preferential treatment to his application.” Defs.’ Mot. at 65. The court agrees with Defendants.
Even if S.B. did submit false family-leave documents—and there is no evidence that he did—this
still would not rise to the level of an abuse of authority under the DCWPA because S.B. did not
abuse his authority in connection to administering a public program or executing a public contract.
Violation of a Federal, State, or Local Law. To qualify as a protected disclosure under the
DCWPA, the alleged violation of law must be “not of a merely technical or minimal nature.”
D.C. Code § 2-223.01(7)(D). The inquiry is not whether the conduct was “ultimately determined
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to be illegal, but whether [plaintiff] reasonably believed it was illegal.” Freeman v. District of
Columbia, 60 A.3d 1131, 1141 (D.C. 2012). A “reasonable belief turns on whether a disinterested
observer with knowledge of the essential facts known to and readily ascertainable by the employee
could reasonably conclude that the actions of the government evidence illegality.” Harris v. D.C.
Water & Sewer Auth., 172 F. Supp. 3d 253, 261 (D.D.C. 2016). Plaintiff argues that if S.B.
fraudulently submitted a paternity-leave application, “chances are it violated laws against fraud,
false statements in government records, and perjury.” Pl.’s Opp’n at 43. That is true as far it goes.
But for the reasons explained above, supra pp. 21–23, Plaintiff’s belief that S.B. had committed a
criminal offense was not reasonable.
Accordingly, the court holds that Plaintiff has failed to sustain with sufficient evidence her
claim under the DCWPA.
IV.
For the foregoing reasons, Defendants’ Motion for Summary Judgment, ECF No. 79, is
granted, and Plaintiff’s Motion for Partial Summary Judgement, ECF No. 77, is denied. A final,
appealable order accompanies this Memorandum Opinion.
Dated: September 23, 2022 Amit P. Mehta
United States District Court Judge
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