UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
TARREN EVANS, : : Plaintiff, : Civil Action No.: 23-3925 (RC) : v. : Re Document No.: 7 : INDIVIDUAL ADVOCACY GROUP, INC., : : Defendant. :
MEMORANDUM OPINION
GRANTING DEFENDANT’S MOTION TO DISMISS
I. INTRODUCTION
In March 2023, Plaintiff Tarren Evans was fired from her job as a Clinical Nursing
Director for Defendant Individual Advocacy Group, Inc. (“IAG”). IAG is a nonprofit
organization that contracts with the D.C. Department of Disability Services (“DDS”) to support
adults with disabilities. Evans alleges that she was fired for raising concerns over IAG’s practice
of inaccurately backdating documents submitted to DDS. In December 2023, Evans sued IAG
for damages, alleging (1) retaliation under the False Claims Act’s whistleblower provision, 31
U.S.C. § 3730(h); (2) a similar violation of the D.C. False Claims Act, D.C. Code § 2-381.04;
and (3) wrongful discharge. IAG has moved to dismiss these claims under Federal Rule of Civil
Procedure 12(b)(6). For the reasons stated below, IAG’s motion to dismiss is granted. II. BACKGROUND
DDS, a D.C. government agency, contracts with IAG to serve the needs of individuals
with disabilities. Amended Compl. (“Compl.”) ¶¶ 5, 7, ECF No. 2. 1 IAG hired Evans as a
Clinical Nursing Director in April 2022. Id. ¶ 6. Her job duties included managing the nursing
staff and department, id., as well as “ensur[ing] that necessary documentation is provided to
ensure that service authorizations for nursing services . . . are current,” “[a]ssisting in the training
and promotion of nursing . . . and other staff members,” “[e]nsuring that the nursing staff and
IAG comply with the federal rules, regulations, and codes,” and working “with the Human
Resources Coordinator and the IAG corporate office to ensure that licenses are up to date,”
Def.’s Mot. to Dismiss Ex. A (“Ex. A”) at 3, ECF No. 7-1. 2 In addition to her duties as a
Clinical Nursing Director, Evans also had a “full caseload of 10 individuals,” which she had to
manage along with her compliance and oversight duties. Compl. ¶ 12. Her workload was
unusual for employees in her position; it was so heavy that she had to work several days unpaid.
Id.
In May 2022, Evans was directed to conduct an Individual Service Plan (“ISP”) meeting
with a supported person before she had received full training on DDS requirements. Id. ¶ 10.
Evans’s predecessor was supposed to train her, but failed to do so before resigning in June 2022.
1 To decide this Rule 12(b)(6) motion, the Court “accept[s] all the well-pleaded factual allegations of the complaint as true and draw[s] all reasonable inferences from those allegations in the plaintiff’s favor.” See Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1125 n.1 (D.C. Cir. 2015). 2 IAG attached Evans’s signed “Role Description” to its motion to dismiss. See Ex. A. Because Evans describes her job duties in her Complaint, they are integral to her claim, and she does not contest the authenticity of the Role Description document, the Court will consider it in ruling on IAG’s Rule 12(b)(6) motion. See Langeman v. Garland, 88 F.4th 289, 292 (D.C. Cir. 2023).
2 Id. ¶ 11. Around the time Evans’s predecessor resigned, Evans “raised her concerns about lack
of training to Dr. Nelson,” the regional director to whom she reported. Id. ¶¶ 8, 13.
Beginning on June 10, 2022, two IAG management officials—Gideon Olatuyi and
Martha Nyan—instructed Evans on multiple occasions to “backdate certain training documents”
so that “it appeared the training had been completed on an earlier date.” Id. ¶ 14. Olatuyi and
Nyan told Evans that backdating would avoid “residential, medical, or environmental
deficiencies with annual contract renewals, individual support plan (ISP) meetings, and trainings
being posted on the DDS dashboard.” Id. Evans raised concerns about this process to Olatuyi,
but he told her that if “the real date was not [in] the correct time frame, IAG would get
reprimanded for being out of compliance with DDS.” Id. ¶ 15.
In August 2022, Evans learned that DDS requires new nurses to complete a mandatory
training within 14 days of employment. Id. ¶ 16. Evans again raised her concerns about her
“lack of appropriate training” to Dr. Nelson. Id. Presumably, the 14-day deadline would not be
an issue for IAG were Evans to backdate her training certification, but that was something Evans
apparently refused to do. See id. ¶ 18. In September 2022, Evans “adamantly pushed” for IAG
to use electronic health records that could be managed in real time, but she was taken aside by
Olatuyi and told that “‘going live’ with online records will never happen in IAG due to the
backdating of documents and . . . the risk of getting audited by DDS.” Id. ¶ 23. From about June
2022 until her termination, Evans felt pressured “to make misrepresentations of facts to obtain
Federal health care payments,” such as by backdating patient forms that were provided to DDS.
Id. ¶ 18. “When she refused, she was retaliated against,” including by being “ostracized,
ignored, deprived of meeting agendas, and excluded from crucial annual . . . meetings,”
particularly from December 2022 until her firing. Id. ¶¶ 18–19. At the end of December, for
3 example, IAG discontinued her medical insurance coverage without informing her. Id. ¶ 25.
Evans raised complaints about the hostile work environment to Dr. Nelson and Nyan, but to no
avail. Id. ¶ 20.
In December 2022, Evans also complained that IAG’s “compliance deficiencies with
DDS regulations might jeopardize her professional licenses.” Id. ¶ 21. The next month, her
“suspicions of faulty documentation practices” were confirmed at a meeting involving
Dr. Nelson and all IAG administrative team members, a guardian of a supported person, and a
DDS service coordinator. Id. ¶ 24. During that meeting, the “guardian brought up a backdated
consent form that was sent to her,” which led the DDS coordinator to “scold[] the IAG team for
not sending . . . documentation to sign in ‘real time,’ which was an illegal action.” Id.
On February 1, 2023, Evans led a CPR training for new hires. Id. ¶ 28. During the class,
Evans left for about 10 minutes to take an urgent call regarding a DDS supported person, and
Olatuyi stepped in for her. Id. When she came back, she could tell that Olatuyi had done an
inadequate job leading the CPR training. Id. On February 3, Evans reported this incident to an
employee in Human Resources, “noting her concerns that proper standards were not being
adhered to.” Id. ¶ 29.
That same day, after an orientation training, Evans reminded a nurse that she needed to
drop off a supported person’s medication. Id. ¶ 30. The nurse said she was in a rush to pick up
her son, so Evans agreed to drop off the medication for her. Id. On February 6, Evans was told
that she had been accused of telling the nurse, “I’m gonna smack you,” as she was leaving. Id.
¶ 31. The next day, Evans was placed on administrative leave, and she was terminated on
March 8, 2023. Id. ¶¶ 32–33.
4 In December 2023, Evans filed her Complaint in this case, ECF No. 1, which she
amended in March 2024, ECF No. 2. The operative Complaint alleges that she was retaliated
against for complaining about IAG’s “improper and illegal business practices, including
falsification of business records with the purpose of defrauding” DDS. Compl. ¶ 1. The
Complaint seeks damages for three causes of action based on (1) a violation of the False Claims
Act’s whistleblower provision, 31 U.S.C. § 3730(h); (2) a similar violation of the D.C. False
Claims Act, D.C. Code § 2-381.04; and (3) wrongful discharge. Compl. ¶¶ 34–51.
IAG moved to dismiss the Complaint for failure to state a claim under Rule 12(b)(6).
Def.’s Mot. to Dismiss (“MTD”), ECF No. 7. The motion is now fully briefed and ready for this
Court’s consideration.
III. LEGAL STANDARD
To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “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)). In addition to the complaint, “[a] court may also consider
documents attached to a motion to dismiss if they are ‘referred to in the complaint,’ integral to
the claim(s), and if their authenticity is undisputed.” Langeman v. Garland, 88 F.4th 289, 292
(D.C. Cir. 2023) (quoting Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir. 2004)). “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.
at 678. “Factual allegations, although assumed to be true, must still ‘be enough to raise a right to
relief above the speculative level.’” Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir.
2012) (quoting Twombly, 550 U.S. at 555). And courts need not accept as true conclusory
5 allegations or legal conclusions. Iqbal, 556 U.S. at 678, 681. Instead, courts must draw upon
their “judicial experience and common sense” to determine whether the “well-pleaded facts”
support a plausible claim. Id. at 679.
IV. ANALYSIS
The Court first analyzes Evans’s retaliation claims under the federal and D.C. False
Claims Acts together, as the parties agree that the same legal standards apply. See MTD at 4–5;
Pl.’s Mem. Law Opp’n (“Pl.’s Opp’n”) at 12, ECF No. 10; Craig v. Not for Profit Hosp. Corp.,
626 F. Supp. 3d 87, 101–02 (D.D.C. 2022) (considering claims brought under the two Acts
together because “[t]here is no material difference between the two Acts’ anti-retaliation
provisions”). The Court then analyzes Evans’s wrongful discharge claim. Because the Court
concludes Evans failed to state a plausible claim to relief, the Court lastly addresses Evans’s
request for leave to amend her Complaint.
A. False Claims Act
The False Claims Act “imposes civil penalties and treble damages upon any person who,
among other things, ‘knowingly presents, or causes to be presented, a false or fraudulent claim
for payment or approval’ to the federal government, or ‘knowingly makes, uses, or causes to be
made or used, a false record or statement material to a false or fraudulent claim[.]’” Singletary v.
Howard Univ., 939 F.3d 287, 293 (D.C. Cir. 2019) (alteration in original) (quoting 31 U.S.C.
§ 3729(a)(1)(A)–(B)). The whistleblower provision of the Act states:
Any employee . . . shall be entitled to all relief necessary to make that employee . . . whole, if that employee . . . is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts done by the employee . . . or associated others in furtherance of an action under this section or other efforts to stop 1 or more violations of this subchapter.
6 31 U.S.C. § 3730(h)(1). 3 To state a claim under § 3730(h), “a plaintiff must plead facts showing
(i) that she engaged in protected activity, (ii) ‘because of’ which she was retaliated against.”
Singletary, 939 F.3d at 293 (quoting United States ex rel. Yesudian v. Howard Univ., 153 F.3d
731, 736 (D.C. Cir. 1998)). The Court addresses these two requirements in turn.
1. Engaged in Protected Activity
“Protected activity under the False Claims Act’s anti-retaliation provision takes two
forms.” Id. at 295. The first is reactive to a suspected violation, while the second is preventative
of a future violation. Id. at 296. Under the first prong, “an employee’s lawful acts are in
‘furtherance of an action under this section’ if she ‘investigat[es] matters that reasonably could
lead to,’ or have a ‘distinct possibility’ of leading to, a ‘viable False Claims Act case.’” Id.
at 295 (alteration in original) (quoting Hoyte v. American Nat’l Red Cross, 518 F.3d 61, 66, 68–
69 (D.C. Cir. 2008)). Neither dissatisfaction with treatment at work nor an investigation of
nothing more than an employer’s compliance with regulations is enough. Id. Rather, “‘the
plaintiff’s investigation must concern “false or fraudulent” claims’ submitted for federal
funding.” Id. (quoting Yesudian, 153 F.3d at 740). Under the second prong, a plaintiff can
establish that she engaged in protected activity “if she plausibly alleges facts showing that she
took lawful measures to stop or avert what she reasonably believed would be a violation of the
False Claims Act.” Id. at 297.
3 The D.C. False Claims Act whistleblower provision similarly states: Any employee . . . shall be entitled to all relief necessary to make that employee . . . whole, if that employee . . . is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts done by the employee . . . or associated others in furtherance of an action under this subchapter or other efforts to stop one or more violations of this subchapter. D.C. Code § 2-381.04(a).
7 IAG argues that “Plaintiff’s Complaint is devoid of any factual allegations she was
investigating false or fraudulent claims for payment by the Federal or D.C. government.” MTD
at 7. The Court agrees. In response, Plaintiff cites to portions of her Complaint in which she
raised concerns about deficient training, was instructed to backdate documents, and complained
about compliance jeopardizing her licensure. See Pl.’s Opp’n at 15–16. But none of these
allegations establish what investigative steps Evans took beyond voicing her concerns. Thus, the
Court proceeds to address whether Evans engaged in protected activity under the second prong.
To constitute protected activity under the second prong, the employee’s conduct must
pertain to her “objectively reasonable belief that the employer is violating, or will violate, the
False Claims Act.” Singletary, 939 F.3d at 296. Though “mere refusal to participate in an
allegedly fraudulent scheme” is not enough, see United States ex rel. Tran v. Computer Scis.
Corp., 53 F. Supp. 3d 104, 135 (D.D.C. 2014), refusal to engage in a fraudulent scheme can be
sufficient where the refusal is “intended and reasonably could be expected to prevent the
submission of a false claim to the government,” see United States ex rel. Chorches for Bankr.
Est. of Fabula v. Am. Med. Response, Inc., 865 F.3d 71, 96 (2d Cir. 2017).
Take, for example, the plaintiff in Singletary. There, the plaintiff alleged retaliation by
Howard University related to violations of National Institutes of Health (“NIH”) standards,
which were tied to some of the University’s grants. Singletary, 939 F.3d at 293–94. The
plaintiff repeatedly warned University officials that laboratory animals were being kept in
impermissibly hot quarters, in violation of NIH standards. Id. After many mice died from heat
exhaustion, she emailed the NIH to report the violation, copying her supervisors. Id. at 294. The
D.C. Circuit held that she had alleged protected activity to stop or avert a violation of the False
Claims Act, reasoning that she repeatedly informed her supervisor that the laboratory conditions
8 were not in compliance with NIH standards—on which the University’s grant money was
conditioned—and that she had an objectively reasonable belief that the University would submit
a false certification of compliance to the NIH based on the University’s annual certification
requirements. Id. at 297–98.
Here, Evans alleges that she repeatedly raised concerns about backdating to her
supervisors and IAG management officials, and that she herself refused to backdate documents.
Compl. ¶¶ 15, 18, 23. She further alleges that she was instructed to backdate documents—that
is, to misrepresent the date—to maintain compliance with DDS regulations and “to obtain
Federal health care payments.” Id. ¶¶ 14–15, 18. Whereas the fraudulent claim in Singletary
involved the inaccurate annual certification of compliance, here, the alleged fraud was even more
widespread, implicating several categories of documents required by DDS, such as patient
consent forms, ISP documents, and mandatory training forms. See Compl. ¶¶ 14, 18. Accepting
the Complaint’s allegations as true, and drawing reasonable inferences in Evans’s favor, the
Complaint sufficiently alleges the Evans engaged in protected activity by refusing to backdate
forms submitted to DDS and by attempting to get others at IAG to do the same.
IAG’s arguments to the contrary are unconvincing. IAG faults Evans for not providing
factual allegations regarding any false or fraudulent claims to the government. See MTD at 6.
But reading the Complaint as a whole, Evans did not need to identify specific fraudulent claims
because she alleges that IAG’s standard practice was to postdate documents to maintain DDS
compliance. See, e.g., Compl. ¶¶ 15, 23. IAG also argues that “Plaintiff’s concerns with
backdating documents pertained to IAG’s alleged non-compliance with DDS regulations and
requirements, including the impact it might have on her licensure.” MTD at 9; see Def.’s Reply
Br. (“Def.’s Reply”) at 5, 7, ECF No. 11. True, but the Complaint also alleges that the
9 “falsification of business records” was for “the purpose of defrauding” DDS, Compl. ¶ 1, and
that IAG management officials pressured Evans to backdate documents “to obtain Federal health
care payments,” id. ¶ 18. Though the Court agrees that Evans could have more clearly connected
the dots between DDS regulation compliance and funding, and the Court encourages her to do so
when amending her Complaint, the Court can reasonably infer that connection from the face of
the Complaint. See Pl.’s Opp’n at 15–16. Thus, the Court is satisfied that Evans has plausibly
alleged that she engaged in protected activity under the False Claims Act.
2. Retaliatory Motivation
Having established that she engaged in protected activity, Evans must also establish “(i) a
qualifying retaliatory employment action, (ii) [IAG’s] knowledge that she was engaged in
protected activity, and (iii) facts showing that the employment action was caused,” at least in
part, “by her engagement in that activity.” Singletary, 939 F.3d at 293, 299. “Discharge plainly
qualifies as a retaliatory employment action under Section 3730(h),” id. at 299, and IAG moves
to dismiss based on its lack of notice of the engaged protected activity, without reaching the third
element of causation, 4 MTD at 10–12. Thus, the dispositive issue is IAG’s notice of Evans’s
protected activity.
That means Evans must allege that IAG was aware that she engaged in lawful acts aimed
at preventing IAG’s submission of false or fraudulent claims. See Singletary, 939 F.3d at 300.
Importantly, however, “plaintiffs alleging that performance of their normal job responsibilities
4 IAG argues that “motive” is not at issue in its motion to dismiss. Def.’s Reply at 2 n.1. In doing so, IAG appears to misunderstand the significance of notice to the Court’s analysis. “Common sense teaches that an employer cannot retaliate against conduct of which it was unaware.” Singletary, 939 F.3d at 300. Accordingly, an employer’s lack of notice of protected activity defeats an argument that the employer acted “because of” the plaintiff’s protected activity. See id. Because IAG disputes notice, its motive is at issue.
10 constitutes protected activity must ‘overcome the presumption that they are merely acting in
accordance with their employment obligations’ to put their employers on notice.” United States
ex rel. Williams v. Martin-Baker Aircraft Co., 389 F.3d 1251, 1261 (D.C. Cir. 2004) (quoting
Yuhasz v. Brush Wellman, Inc., 341 F.3d 559, 568 (6th Cir. 2003)). But “when an employee acts
outside h[er] normal job responsibilities or alerts a party outside the usual chain of command,
such action may suffice to notify the employer that the employee is engaging in protected
activity,” and thus overcome the Martin-Baker presumption. See id.
Here, Evans fails to establish IAG’s notice of her protected activity because her
complaints to IAG regarding backdating were within the scope of her job duties. As mentioned,
Evans does not contest that those duties included “ensur[ing] that necessary documentation is
provided to ensure that service authorizations for nursing services . . . are current,” “[a]ssisting in
the training and promotion of nursing, DSP, and other staff members,” “[e]nsuring that the
nursing staff and IAG comply with the federal rules, regulations, and codes,” and working “with
the Human Resources Coordinator and the IAG corporate office to ensure that licenses are up to
date.” Ex. A at 3. Evans challenges the applicability of the Martin-Baker presumption because
her “core duties” were “not exclusively or even principally about ‘ensur[ing] compliance.’” Pl.’s
Opp’n at 19 (quoting Pitts v. Howard Univ., 111 F. Supp. 3d 9, 19 (D.D.C. 2015)). But Evans
alleges that her duties included “maintaining compliance of various mandatory training[s] for the
organization.” Compl. ¶ 12. Moreover, to accept Evans’s reasoning would seemingly limit the
presumption to compliance officials. Evans cites no authority for such a limitation; even the
court in Pitts, on which Evans relies, assumed without deciding that the presumption applied.
See Pitts, 111 F. Supp. 3d at 19–20. Because “training, completion of necessary paperwork,
assurance that necessary documentation for nursing services is current, and compliance with
11 rules, regulations and codes were all within Plaintiff’s regular job responsibilities,” MTD at 11,
the Court agrees that Evans had to do something beyond her duties to put IAG on notice of her
protected activity, see United States ex rel. Schweizer v. Oce N.V., 677 F.3d 1228, 1239 (D.C.
Cir. 2012) (reasoning that because government contract compliance was part of plaintiff’s job,
her retaliation claim could not succeed unless she acted outside her normal job responsibilities,
notified someone outside her usual chain of command, advised her employer to hire counsel, or
otherwise put her employer on notice that litigation was a reasonable possibility).
Evans has not met this burden. Her Complaint does not allege that she went beyond the
scope of her job duties in voicing her concerns about backdating. For example, to argue she
raised her concerns beyond the usual chain of command, Evans states that she contacted Human
Resources. Pl.’s Opp’n at 20. But she supports that assertion with citations to a declaration
attached to her opposition brief, not allegations included in her Complaint. See id. And to
support that she “clearly complained about IAG conduct being fraudulent or potentially
subjecting IAG to FCA liability,” she cites to paragraphs 15, 18, and 21 of her Complaint. Id.
None of those paragraphs mention FCA liability, and only paragraph 18 includes facts
implicating fraud, but does so in the context of what she felt pressured to do, not what she told
IAG. See Compl. ¶¶ 15, 18, 21. Evans does not even allege that she told IAG why she refused
to backdate documents. See id. ¶ 18.
What is more, Evans’s Complaint alleges that a January 2023 meeting with a DDS
coordinator confirmed her suspicion that backdating was illegal. See id. ¶ 24. But the Complaint
provides no factual allegations regarding what Evans did with this information, which seemingly
would have emboldened her to take action, such as “advising [IAG] to hire counsel,” see
Schweizer, 677 F.3d at 1239, submitting whistleblower reports to IAG officials, see United
12 States ex rel. Kini v. Tata Consultancy Servs., Ltd., 146 F.4th 1184, 1196 (D.C. Cir. 2025), or
sending an email to DDS, see Singletary, 939 F.3d at 301. Absent factual allegations that Evans
went beyond her normal job duties in expressing concerns about backdating, the Court is unable
to conclude IAG had notice of her protected activity. Consequently, the Court concludes that
Evans has failed to state a claim under the federal and D.C. False Claims Acts.
B. Wrongful Discharge
“[T]he District of Columbia Court of Appeals [has] recognized a ‘very narrow’ public
policy exception to the at-will employment doctrine: ‘a discharged at-will employee may sue his
or her former employer for wrongful discharge when the sole reason for the discharge is the
employee’s refusal to violate the law, as expressed in a statute or municipal regulation.’”
Kassem v. Washington Hosp. Ctr., 513 F.3d 251, 254 (D.C. Cir. 2008) (quoting Adams v. George
W. Cochran & Co., 597 A.2d 28, 34 (D.C. 1991)). Such exceptions should be recognized “only
if they reflect a clear mandate of public policy officially declared in a statute or regulation, or in
the Constitution, and demonstrate a close fit between the policy thus declared and the conduct at
issue in the allegedly wrongful termination.” Williams v. Chugach Alaska Corp., 210 F. Supp.
3d 25, 31 (D.D.C. 2016) (citation modified) (quoting Leyden v. Am. Accreditation Healthcare
Comm’n, 83 F.Supp.3d 241, 249 (D.D.C. 2015)). But in doing so, a plaintiff “must also show
that this policy is not already protected by another statute.” See Brown v. Howard Univ. Hosp.,
No. 19-cv-3340, 2021 WL 311001, at *3 (D.D.C. Jan. 29, 2021).
Evans’s Complaint alleges “a clear mandate of public policy in favor of allowing
employees to report to management health or safety issues, to complain about acts of retaliation
for having done so, and to complain of fraudulent activities of the employer.” Compl. ¶ 47. She
grounds this mandate in the Department on Disability Services Establishment Act, the
13 Rehabilitation Services Program Establishment Act, and the D.C. False Claims Act. Id. IAG
moved to dismiss this claim on all three bases. MTD at 13. In response, Evans did not address
IAG’s arguments regarding the Rehabilitation Services Program Establishment Act or the D.C.
False Claims Act, so the Court considers those arguments conceded. See Liu v. Georgetown
Univ., No. 22-cv-157, 2024 WL 4362128, at *5 (D.D.C. Sept. 30, 2024) (“Further, if a plaintiff
‘files an opposition to a dispositive motion and addresses only certain arguments raised by the
defendant, a court may treat those arguments that the plaintiff failed to address as conceded.’”
(quoting Xenophon Strategies, Inc. v. Jernigan Copeland & Anderson, PLLC, 268 F. Supp. 3d
61, 72 (D.D.C. 2017))).
Having narrowed the issue, Evans’s remaining basis does not fare much better. She relies
on the Department of Disability Services Establishment Act, specifically D.C. Code § 7-
761.03(3) and § 7-761.13(a)(1)(H), and identifies her reporting of “the CPR class incident” as
the protected reporting of “health and safety issues.” See Pl.’s Opp’n at 21. Neither of these
provisions supports Evans’s claim.
First, § 7-761.03(3) provides that “the Department on Disability Services is established as
a separate Cabinet-level agency, subordinate to the Mayor, within the executive branch of the
District of Columbia, for the purpose of . . . [p]romoting the well-being of individuals with
intellectual or developmental disabilities throughout their life spans, through the delivery of
individualized, high-quality, safe services and supports.” This is a general statement of purpose
for the creation of DDS. Thus, Evans’s claims, particularly those related to a deficient CPR
training, are not “solidly” and “close[ly]” based on that general statute. See Williams, 210 F.
Supp. 3d at 31 (quoting Leyden, 83 F. Supp. 3d at 249).
14 Second, § 7-761.13(a)(1)(H) provides that “[t]he Department shall . . . [e]stablish a
process for the resolution of formal complaints, including formal complaints filed with a
provider, which shall include, at a minimum . . . [p]rohibitions on retaliatory actions such as
reprisal, restraint, interference, coercion, or discrimination by DDS or a provider against a person
who files a formal complaint.” A “formal complaint” is defined in the statute as a “statement by
a person of his or her dissatisfaction with DDS or a provider, including the denial of any services
and supports under this chapter or other applicable law.” D.C. Code § 7-761.02(5B)(A). Thus,
the Court agrees with IAG that this section “provides that DDS must establish a process to
resolve ‘formal complaints,’ including ‘formal complaints’ filed with a provider, and sets forth
minimum provisions which must be included in DDS’[s] complaint resolution process.” Def.’s
Reply at 12. To the extent this provision reflects a policy in favor of raising complaints against
providers, because it “create[es] a specific, statutory cause of action to enforce” that policy
through a complaint resolution process, the provision cannot form the basis of a wrongful
termination claim. See Carter v. District of Columbia, 980 A.2d 1217, 1226 (D.C. 2009);
Brown, 2021 WL 311001, at *3. Because neither provision supports Evans’s wrongful discharge
claim, the Court will also grant IAG’s motion to dismiss this claim.
C. Leave to Amend
Under Rule 15(a), a “court should freely give leave” to amend a complaint “when justice
so requires.” Fed. R. Civ. P. 15(a)(2); see Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir.
1996). “The key issue in considering a motion to amend is whether the non-movant will suffer
any prejudice from the amendment.” Ellis v. Georgetown Univ. Hosp., 631 F. Supp. 2d 71, 79
(D.D.C. 2009) (quoting Clark v. Feder Semo & Bard, PC, 560 F. Supp. 2d 1, 3 (D.D.C. 2008)).
In Evans’s opposition brief, she requested that if the Court grants IAG’s motion to dismiss, she
15 be granted leave to amend. Pl.’s Opp’n at 22. IAG argues that the Court should deny this
request because “Plaintiff has failed to specify the grounds for her purported amendment.”
Def.’s Reply at 13. But, as IAG acknowledged, Plaintiff’s opposition brief and attached
declaration include “allegations [that] are not set forth in Plaintiff’s Complaint.” See id. at 4.
Though Evans could not amend her Complaint in her opposition brief, see Valibeigi v. District of
Columbia, No. 22-cv-3149, 2024 WL 4332626, at *5 n.8 (D.D.C. Sept. 27, 2024), the Court is
not certain that amendment would be futile, see In re Interbank Funding Corp. Sec. Litig., 629
F.3d 213, 215 (D.C. Cir. 2010) (affirming the district court’s denial of leave to amend the
complaint based on futility of amendment). Further, IAG does not argue that it will be
prejudiced by amendment at this early stage of the litigation. See Driscoll v. George Wash.
Univ., 42 F. Supp. 3d 52, 57 (D.D.C. 2012) (finding no prejudice from amendment at the
pleading stage); Ellis, 631 F. Supp. 2d at 80 (finding no undue prejudice from amendment “prior
to the commencement of briefing on summary judgment”). Accordingly, the Court will grant
IAG’s motion without prejudice, and grant Evans leave to amend her Complaint to address the
deficiencies identified in this Memorandum Opinion.
V. CONCLUSION
For the foregoing reasons, Defendant’s Motion to Dismiss (ECF No. 7) is GRANTED
without prejudice. The Court will grant Plaintiff leave to amend her Complaint on or before
October 16, 2025. An order consistent with this Memorandum Opinion is separately and
contemporaneously issued.
Dated: September 16, 2025 RUDOLPH CONTRERAS United States District Judge