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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 19-CV-0826
JAMES HOLBROOK, ET AL., APPELLANTS,
V.
DISTRICT OF COLUMBIA, APPELLEE.
Appeal from the Superior Court of the District of Columbia (CAB-5211-14)
(Hon. Florence Y. Pan, Trial Judge)
(Argued March 23, 2021 Decided September 23, 2021)
Neil L. Henrichsen for appellants.
Sonya L. Lebsack, Assistant Attorney General, with whom Karl Racine, Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General, Caroline S. Van Zile, Principal Deputy Solicitor General, and Carl J. Schifferle, Deputy Solicitor General, were on the brief, for appellee.
Before EASTERLY and DEAHL, Associate Judges, and LONG, ∗ Senior Judge, Superior Court of the District of Columbia.
∗ Sitting by designation pursuant to D.C. Code § 11-707(a) (2001). 2
DEAHL, Associate Judge: James Holbrook, Larry Bishop, Sonji Johnson, and
Collins Snow sued the District of Columbia alleging violations of the D.C.
Whistleblower Protection Act (WPA), D.C. Code §§ 1-615.51, et seq. (2016 Repl.).
They claim they were fired by the District of Columbia Department of Corrections
(DOC) in retaliation for refusing to engage in, and objecting to, DOC’s unlawful
treatment of two other employees (Deon Jones and Andra Parker). The trial court
granted the District’s motion for summary judgment, concluding that appellants did
not adduce evidence from which a reasonable jury could find that they were
retaliated against for engaging in conduct protected under the WPA. In other words,
they did not establish a so-called “prima facie case.” Johnson v. District of
Columbia, 225 A.3d 1269, 1280 (D.C. 2020).
We disagree. The WPA protects an employee’s refusal to comply with an
illegal order and their disclosure of information that they reasonably believe evinces
illegal conduct. D.C. Code §§ 1-615.53(a), 1-615.52(a)(4), (6). Appellants’
conduct, when we view the evidence in the light most favorable to them, includes
both refusals to comply with illegal orders and disclosures that they reasonably
believed evinced illegal conduct. They refused to comply with illegal orders when
each of them defied DOC’s instructions to treat Jones and Parker in a discriminatory
manner, and they disclosed information that evidenced unlawful conduct when each 3
of them objected to DOC’s disparate treatment of Jones and Parker. They also made
a sufficient showing of a causal link between their protected conduct and their
terminations. Evidence substantiated that DOC all but explicitly instructed staff to
harass Jones and Parker, and threatened to fire those who refused. Appellants each
refused to do so and were subsequently fired. Under these circumstances, a jury
might reasonably find that appellants’ terminations were causally related to their
protected conduct under the WPA. A prima facie showing was therefore made.
The District offers an alternative basis to affirm. It contends that even if
appellants made a prima facie showing of retaliation, thereby shifting the burden to
the District to demonstrate an independent and legitimate basis for their
terminations, see D.C. Code § 1-615.54(b), the District carried that burden. We
disagree. The District’s proffered independent reasons for appellants’ terminations
do not warrant summary judgment in its favor; they lack corroborating evidence and
are undermined by the significant evidence in the record suggesting appellants’
terminations were prompted by their protected conduct. We accordingly reverse and
remand to the trial court for further proceedings. 4
I.
A. Allegations Supporting the WPA Claims
In 2007, Deon Jones and Andra Parker filed a lawsuit against their employer,
DOC, claiming discrimination based on their sexual orientation. Although the case
settled in 2011, their lawsuit allegedly triggered a wave of retaliatory conduct
directed toward them. 1 That retaliation included receiving undesirable work
assignments, having various work requests denied, being ostracized by their
supervisors, and enduring homophobic slurs. Jones and Parker made numerous
complaints about the retaliation, including in letters addressed to then-Mayor
Vincent Gray, but the harassment continued. Fearing for their safety, Jones and
Parker eventually requested to be placed on administrative leave, which DOC
granted in October 2013.
The retaliation stemmed, in part, from directives DOC Director Thomas Faust
gave to his supervisory staff to treat Jones and Parker differently than other
employees. Deposition testimony indicated that Director Faust told his staff they
1 Because this appeal arises from a grant of summary judgment, the facts below are recited in the light most favorable to appellants, the non-moving party. Johnson, 225 A.3d at 1275. 5
“need[ed] to show Jones and Parker that they[ were] not running the facility,” and
that “he wanted something done” because he “was tired of complaints and stuff
coming from Parker and Jones.” DOC staff assumed this meant they “need[ed] to
make [Jones’s and Parker’s] lives miserable on the shift” and that they should
“target” them for disciplinary write-ups. Those who did not participate risked
repercussions. As Director Faust put it: “the train [was] leaving the station,” and if
his staff did not “get onboard and start thinking and doing things his way, then [they]
wouldn’t be on the train.” When supervisors did assist Jones and Parker, other
employees warned them that doing so would get them in “trouble” or fired, and that
not being a “team player” could “cost” them.
Appellants in this matter are four former management officers for DOC who
supervised Jones and Parker at various points after settlement of their 2007 lawsuit.
They each claim they were unlawfully terminated in retaliation for their objections
to how Jones and Parker were being treated, and for their refusals to actively
participate in such treatment.
i. James Holbrook
James Holbrook claims he refused to partake in the discriminatory treatment
of Jones and Parker on two occasions. The first occurred in early 2011, when 6
Holbrook granted Parker’s medical leave request despite instructions from his
supervisor not to do so. After granting the leave request, Holbrook was “chastised”
by his supervisors, to which he responded that he would not treat Parker differently
from other employees.
The second incident occurred around August 2013, when Jones approached
Holbrook about potential re-assignment to an open position under Holbrook’s
purview. Holbrook thought Jones “was a good candidate for the position,” but his
supervisor rejected the re-assignment, telling Holbrook to “[l]eave [Jones] alone.”
Holbrook initially complied with his supervisor’s directive, but when Jones inquired
about the position two to three weeks later and provided a memorandum requesting
the re-assignment, Holbrook again raised the possibility of Jones’s re-assignment to
his supervisor. Holbrook’s supervisor again brushed off the re-assignment request,
and Holbrook objected, telling his supervisor that he had “no viable excuse or reason
not to give [Jones] th[e] position” and that he was “trying to treat [Jones] the same
as [he] would any other officer.” Holbrook was informed of his termination “a
couple weeks later,” effective September 30, 2013. 7
ii. Larry Bishop
Larry Bishop recounted being involved in three instances relating to the
discriminatory treatment of Jones and Parker, all occurring after he was instructed
not to assist them without first seeking approval from supervisors. The first two
instances involved Parker: on separate occasions in June and July 2013, Bishop
changed Parker’s leave status and post assignment without obtaining pre-approval
from his supervisor. After each, Bishop was “chewed out” by his supervisor and
told not to move Parker from his post or to grant his leave requests without approval.
When he complained that was “not the normal procedure[s]” and questioned “[w]hy
[he] ha[d] to go through” his supervisor to approve those routine requests, he was
told to “just do what I tell you to do.” Bishop then began to notice a change in how
his colleagues were treating him; while previously he was “the go-to person” if
someone “want[ed] something done,” after changing Parker’s post assignment and
leave status, his colleagues “started shunning [him] and not letting [him] do
anything.” Frustrated with his treatment, Bishop filed a complaint regarding how
his supervisor was having him treat Parker, and further complaining about his own
treatment stemming from his initial refusal to comply. 8
The third incident occurred in September 2013 when Bishop signed Jones’s
workers’ compensation forms without pre-approval. Shortly after doing so,
Bishop’s supervisor called him into his office, “slammed the door,” and told Bishop
that he needed to leave Jones and Parker alone or he was going to get fired. A week
or so later, on September 12, 2013, Bishop learned of his termination, effective the
same day as Holbrook’s termination, September 30, 2013.
iii. Sonji Johnson
Sonji Johnson claims she either objected to, or refused to participate in,
DOC’s discriminatory treatment in two instances. The first was around the spring
of 2011, when Johnson’s supervisor gave her a pre-written reprimand directed at
Parker for a “miscount,” and instructed her to issue it. She refused because—based
on instructions given during staff meetings implying that supervisors should “target”
Jones and Parker for write-ups—she believed the reprimand was unwarranted and
was meant “to harass Parker.” She looked into the matter further and determined
that Parker was not at fault for the miscount. When Johnson informed her supervisor
of this, he directed her to write Parker up anyway and exclaimed that he did not tell
her “to conduct a fucking investigation.” Johnson still refused, and told her 9
supervisor that she was “not going to write [up an] officer[] knowing that it’s
wrong.”
Later that same year, in October 2011, Johnson signed off on a workers’
compensation claim for Parker after he was hurt on the job. After doing so, she
spoke with her supervisor who asked if she had “lost [her] mind” and that she was
going to get in “trouble” for doing so because “nobody be approving no paperwork
for Parker and Jones.” Johnson’s supervisor then instructed her not to verify the
claim when the claims examiner called her. Johnson defied the instruction because
she believed it was discriminatory and “substantie[d] the claim” on a follow-up call
with the claims examiner. She was then called into a meeting with four of her
supervisors where she was told that she was “expected to be a team player and right
now [she] wasn’t being a team player and that could cost [her].” Johnson responded
by saying that she “was not going to do anything that was unethical” and that she
“didn’t understand why [she] couldn’t treat Corporal Parker the way that [she] would
treat any other employee.” About four months later, in February 2012, Johnson was
fired. 10
iv. Collins Snow
Collins Snow recounted one instance where he expressed disagreement with
the way Jones and Parker were being treated. In 2010, Snow was “chastised” by his
supervisor for granting a leave request for Jones. Snow claims he “stood up” to his
supervisor in this instance, stating that he did not understand why he could not grant
Jones’s leave request and that “[h]ad it been someone else” besides Jones making
the request, “it wouldn’t have been any . . . issue.” Snow also highlights the fact that
his name appeared on the witness list for Jones and Parker in the 2007 litigation,
though he did not realize it until after he was terminated. Snow was terminated in
February 2012, on the same day as Johnson.
B. Trial Court Proceedings
Contending they were terminated because of their objections and resistance to
DOC’s treatment of Jones and Parker, appellants filed a complaint against the
District alleging they were unlawfully retaliated against in violation of the WPA,
D.C. Code § 1-615.53(a). Jones and Parker were also plaintiffs in the action. They
alleged unlawful retaliation under both the WPA and the District of Columbia
Human Rights Act (DCHRA), D.C. Code § 2-1402.61(a) (2016 Repl.), both of 11
which prohibit an employer from retaliating against an employee for complaining
about sexual orientation discrimination.
The District moved for summary judgment as to all parties. It argued that
appellants’ objections to the treatment of Jones and Parker were not protected under
the WPA, and even if they were, appellants did not demonstrate a causal link
between their protected activity and their terminations. As for Jones and Parker, the
District argued summary judgment was appropriate because both requested that they
be placed on administrative leave, so DOC granting that request could not be
retaliatory under either the WPA or DCHRA. The trial court denied the District’s
summary judgment motion with respect to Jones and Parker, concluding that they
substantiated a retaliation claim that went beyond their placement on administrative
leave by proffering evidence of an abusive workplace environment. But the court
granted the District’s motion as to appellants. It reasoned that their objections to the
treatment of Jones and Parker were, for the most part, not protected conduct under
the WPA. To the limited extent the trial court found that some protected disclosures
were made, it determined that appellants could not demonstrate the necessary causal
link between that conduct and their terminations. 12
Approximately two years later, Jones and Parker settled their claims against
the District, prompting the trial court to dismiss and close the case. Appellants then
filed this timely appeal arguing it was error for the trial court to grant summary
judgment in favor of the District on their WPA claims.
II.
We review the trial court’s grant of summary judgment de novo, undertaking
“an independent review of the record . . . by examining and taking into account the
pleadings, depositions, and admissions along with any affidavits on file.” District
of Columbia v. District of Columbia Pub. Serv. Comm’n, 963 A.2d 1144, 1155 (D.C.
2009). The record, as well as any reasonable inferences therefrom, must be viewed
in the light most favorable to the non-moving party—in this case, appellants. Bailey
v. District of Columbia, 668 A.2d 817, 819 (D.C. 1995). If we determine that record
evidence exists on which a jury could properly reach a verdict for appellants on their
WPA claims, then summary judgment was granted in error, and we must reverse.
Ukwuani v. District of Columbia, 241 A.3d 529, 541 (D.C. 2020).
Whether a jury could return a verdict favorable to appellants here depends,
first and foremost, on whether they presented sufficient evidence to make out a prima
facie case of retaliation under the WPA. A prima facie case consists of evidence 13
from which a reasonable jury could conclude that appellants were retaliated against
by their employer for engaging in conduct protected under the WPA. Johnson, 225
A.3d at 1275 (citing D.C. Code § 1-615.53(a)). That requires evidence that (1)
appellants engaged in protected conduct, and (2) their terminations were causally
related to that conduct. See id. The trial court found that appellants did not carry
this threshold burden. We disagree.
A. Protected Conduct Under the WPA
Protected conduct under the WPA includes (1) refusals to comply with an
“illegal order” and (2) “protected disclosure[s].” D.C. Code § 1-615.53(a). The Act
defines an “illegal order” as “a directive to violate or to assist in violating a federal,
state or local law, rule, or regulation.” Id. § 1-615.52(a)(4). It further defines a
“protected disclosure” as including “any disclosure of information . . . that the
employee reasonably believes evidences . . . [a] violation of a federal, state, or local
law, rule, or regulation.” 2 Id. § 1-615.52(a)(6)(D). Appellants claim they presented
2 The WPA delineates several other categories of protected disclosures, but this is the only category appellants adequately advance on appeal. While they occasionally allude to other categories in their brief (abuse of authority, public safety, and gross mismanagement), we consider these arguments waived as they are “unaccompanied by some effort at developed argumentation.” Johnson, 225 A.3d at 1277 n.5. The closest appellants get to pressing one of those alternative theories 14
evidence of both types of protected conduct. As for non-compliance with an illegal
order, they rely on their defiance of DOC’s instruction to treat work requests
received from Jones and Parker differently from other employees, which they
considered to be instructions to violate, or assist in violating, the DCHRA. As for
protected disclosures, they rely on the various express objections they made to their
supervisors about the discriminatory treatment of Jones and Parker, which they
maintain constituted reports of conduct violating the DCHRA. We agree on both
points.
i. Refusals to Comply with Illegal Orders
Appellants contend that DOC’s repeated instructions—from Director Faust
and his management team—to treat work requests from Jones and Parker differently
from other employees were directives to violate, or assist in violating, the DCHRA.
They further contend their refusals to comply with those illegal directives were thus
protected conduct under the WPA. D.C. Code § 1-615.53(a). We agree.
is a footnote in their reply brief, where they state—without support—that “differing treatment of Jones and Parker are necessarily an abuse of authority.” Even if we considered that conclusory assertion a sufficiently developed argument, “[i]t is the longstanding policy of this court not to consider arguments raised for the first time in a reply brief.” Stockard v. Moss, 706 A.2d 561, 566 (D.C. 1997). 15
The DCHRA prohibits an employer from retaliating against an employee who
complains about discrimination in the workplace. D.C. Code §§ 2-1402.11(a)(1)(A),
2-1402.61(a); see Ukwuani, 241 A.3d at 546. Jones and Parker alleged they were
retaliated against by way of an abusive and harassing workplace environment after
they complained of sexual orientation discrimination. The trial court found there
was sufficient evidence for a jury to conclude that Jones and Parker were unlawfully
retaliated against in violation of the DCHRA—through undesirable work
assignments, having their work requests denied, being ostracized, and so on—and
the District does not cast doubt on that ruling in this appeal. It follows that (1) DOC
directives that employees assist in that unlawful retaliation against Jones and Parker
would constitute an illegal order under the WPA, see D.C. Code § 1-615.52(a)(4),
and (2) that an employee’s refusal to comply with such directives would be protected
conduct under the WPA, id. § 1-615.53(a).
Viewed in the light most favorable to appellants, the evidence supports both
of those inferential steps. Each appellant was directed to assist in the unlawful
retaliation against Jones and Parker and each refused to comply:
• Holbrook approved a leave request for Parker after he was instructed not to do so. 16
• Bishop re-assigned Parker, changed Parker’s leave status, and approved Jones’s workers’ compensation claim, all in contravention of instructions not to assist Jones and Parker.
• Johnson substantiated a workers’ compensation claim for Jones after being told not to do so, and refused an order to write Parker up for a miscount that he did not commit. 3
• Snow granted a leave request for Jones contrary to Director Faust’s directives. 4
A reasonable jury could find that each of these refusals was in defiance of unlawful
orders and so is protected conduct under the WPA.
The trial court found otherwise, concluding that there was nothing illegal
about directing appellants to refer matters regarding Jones and Parker—leave
requests, shift changes, and the like—to supervisors up the chain of command. In
the trial court’s view, each appellant’s defiance of such orders could not “be
considered a refusal to comply with an illegal order, because . . . instructions” on
3 The District claims this charge was forfeited by Johnson because it was not raised during summary judgment briefing. Since the charge was raised in appellant’s complaint, part of the summary judgment record, addressed by the trial court in its grant of summary judgment, and raised on appeal, we conclude it was not forfeited. 4 The record is not clear as to whether Director Faust gave any such directives before Snow granted this leave request, yet the District seems to acknowledge that Snow’s approval of Jones’s leave request defied Director Faust’s directives for how staff was to handle Jones’s and Parker’s personnel requests. So we treat the point as conceded for purposes of this appeal. 17
how to treat a given employee’s work requests are “not illegal.” That paints with
too broad a brush. Instructions on how to treat a particular employee’s personnel
requests can absolutely be illegal, for instance, when those instructions are
discriminatory in both intent and effect. Here we have considerable evidence that
these directives—targeted only at Jones and Parker—were a way to harass and
intimidate them after they complained of discriminatory treatment. The record
evidence includes, to scratch the surface of it: (1) Director Faust’s comment that he
“was tired of complaints . . . coming from Parker and Jones,” (2) his instruction to
his staff that they needed to show Jones and Parker that they were “not running the
facility,” and (3) his staff’s understanding that this meant they needed to make
Jones’s and Parker’s “lives miserable.” Where Jones’s and Parker’s retaliation
claims under the DCHRA survived summary judgment, it follows that DOC
directions for its employees to contribute to that retaliation would be unlawful orders
to assist in violating the DCHRA, and that appellants’ defiance of such orders would
be protected conduct.
The District provides an alternative defense of the trial court’s ruling. It
argues that Jones and Parker did not suffer any adverse action as a result of how their
various work requests were handled, a necessary component for establishing a
DCHRA violation. See Kumar v. District of Columbia Water & Sewer Auth., 25 18
A.3d 9, 17 (D.C. 2011). But that reads appellants’ claims too narrowly. They were
not defying one-off instructions about how to handle one personnel request or
another, but instead were opposing the pervasive scheme animating Jones’s and
Parker’s hostile work environment claims. They refused to contribute to that
environment—as each of them, to one degree or another, expressly said when
defying orders to treat Jones and Parker differently, supra Part I.A. And a jury could
find that the hostile environment appellants refused to nurture ultimately led to
adverse actions against Jones and Parker, a point the District does not dispute. So
the relevant retaliation experienced by Jones and Parker is not confined to the
manner in which any given personnel request was handled, but instead includes
those adverse actions ultimately suffered by Jones and Parker as a result of their
disparate treatment. See Lively v. Flexible Packaging Ass’n, 830 A.2d 874, 890
(D.C. 2003) (the “entire mosaic” should be considered when evaluating a DCHRA
hostile work environment claim). The individual directives were mere cogs in a
wheel that appellants refused to help turn—or so a jury might reasonably find.
ii. Protected Disclosures
Appellants also claim they made protected disclosures when they voiced
objections to DOC’s directives. According to appellants, their objections exposed 19
DOC’s unlawful and discriminatory treatment of Jones and Parker, and were thus
protected under § 1-615.52(a)(6)(D) of the WPA. Those objections include:
• Holbrook telling his supervisor that he would not treat Parker differently from other employees after he was reprimanded for granting a leave request for Parker.
• Holbrook informing his supervisor that he was treating Jones as he would any other employee after he was instructed not to assist Jones with a re-assignment request.
• Bishop filing a complaint regarding the alleged retaliation he personally experienced after granting work requests for Parker.
• Johnson telling her supervisors that she would not treat Parker unethically or any differently from other employees after her supervisors insinuated she could be fired for substantiating Parker’s workers’ compensation claim.
• Snow “st[anding] up” to his supervisor and telling him he “didn’t understand why [he could not grant a leave request for Jones]” and that had the leave request been from anyone else, there would have been no pushback. 5
5 Snow also claims that his name’s appearance on the witness list for Jones and Parker in their 2007 lawsuit constitutes a protected disclosure under the WPA. We disagree. To the extent Snow actually intended to testify, there is no evidence that he disclosed that intent to anybody; he was unaware that his name was on the witness list. That is not to say an employee’s intent to testify regarding unlawful conduct by their employer is unprotected under the WPA. Cf. Bryant v. District of Columbia, 102 A.3d 264, 267-69 (D.C. 2014) (intent to testify protected activity under the DCHRA). Just that, if it is protected, it is not a protected disclosure where the employee never actually discloses such an intent. 20
Each disclosure is protected under the WPA if it conveyed information “the
employee reasonably believe[d]” evidenced “a violation of a federal, state, or local
law.” D.C. Code § 1-615.52(a)(6). In other words, this test is satisfied if the
employee genuinely and contemporaneously believes that their disclosure evinces
illegal conduct, and that genuine belief is reasonable. Johnson, 225 A.3d at 1276.
Appellants presented substantial evidence supporting both parts of that test. 6
6 This court has previously questioned whether there is any “disclosure” at all where the report conveys information already known to its recipient. Wilburn v. District of Columbia, 957 A.2d 921, 925-26 (D.C. 2008). As particularly relevant here, some federal courts have held—albeit in interpreting a prior iteration of the federal Whistleblower Protection Act—that a “disclosure of wrongdoing to the wrongdoer herself is not whistleblowing.” Hooven-Lewis v. Caldera, 249 F.3d 259, 275 (4th Cir. 2001) (citing Willis v. Dept. of Agriculture, 141 F.3d 1139, 1143 (Fed. Cir. 1998)). We note, however, that those federal authorities seem to have been abrogated by 2012 amendments to the federal Whistleblower Protection Act which clarify that reports to the wrongdoer herself may yet qualify as protected disclosures. 5 U.S.C. § 2302(f)(1)(A) (“A disclosure shall not be excluded” from the Act’s protection because it “was made to a supervisor or to a person who participated in” the reported wrongdoing), as amended by Pub. L. 112-199 (Nov. 12, 2012) (“Section 101. Clarification of Disclosures Covered”). We do not address or opine upon this nuance as neither the District nor the trial court suggests these reports are not protected disclosures because of the persons to whom they were communicated, but instead, each focuses on the content of the reports. We therefore do likewise. 21
a. Genuine Contemporaneous Belief
The words spoken by appellants provide sufficient evidence for a jury to
conclude they genuinely believed their objections evidenced illegal conduct. When
objecting to DOC’s treatment of Jones and Parker, appellants told their supervisors
that the treatment was unfair and disparate when compared to the treatment of other
employees. See supra Part II.A.ii. Appellants explained during discovery that they
believed those statements expressed their beliefs that DOC’s treatment of Jones and
Parker was unlawful. 7 Appellants thus provided ample support that they genuinely
and contemporaneously believed their conduct evidenced illegal activity.
The District argues that we should not consider appellants’ after-the-fact
characterizations during litigation, and that the words actually used by appellants
“belie[] [their] claim that [they] intended to” report wrongdoing covered by the
WPA, because appellants did not use the words “unlawful,” “illegal” or “DCHRA”
7 Holbrook testified that he believed his communications with his supervisors demonstrated his belief “that Jones was not being treated consistently with the District’s laws.” Bishop testified that he believed DOC’s treatment of Jones and Parker was unlawful. And both Johnson and Snow swore, under penalty of perjury in signed affidavits, that they believed DOC’s treatment of Jones and Parker was unlawful. 22
when making their objections. We disagree with several aspects of that argument,
along with its bottom line.
First, in determining whether appellants made out a prima facie case, we are
free to consider their after-the-fact characterizations of what they believed their
objections conveyed. That is particularly appropriate here because those
characterizations are in perfect alignment with their contemporaneous objections. It
is certainly true that when determining whether an employee subjectively believed
their conduct evidenced illegal activity, this court has stated that “we look to ‘the
statements in [the whistleblower’s] complaint to a supervisor or to a public body,
not [their] subsequent characterization of those statements in litigation,’” Johnson,
225 A.3d at 1276 (quoting Wilburn, 957 A.2d at 925). But we have endorsed that
reasoning only where the whistleblowing employee’s contemporaneous disclosure
betrayed no hint of wrongdoing. 8 That is not the case here. There is no incongruity
8 See, e.g., Wilburn, 957 A.2d at 926 (complaint stating that a law firm reviewing cases for a D.C. agency was not satisfactorily performing all of its work could not be later re-characterized as a complaint intending to disclose gross mismanagement or any other wrongdoing on the agency’s part by retaining the law firm); Johnson, 225 A.3d at 1278-79 (declining whistleblower’s post hoc allegations that a show-cause order evidenced wrongdoing on the part of the Office of the Attorney General where whistleblower’s contemporaneous reaction was to blame the judge for bias and inappropriate conduct, not gross mismanagement or a violation of law); Freeman v. District of Columbia, 60 A.3d 1131, 1142-43 (D.C. 2012) (finding that whistleblower could not have possessed the necessary subjective 23
between appellants complaining to their supervisors that they wanted to treat Jones
and Parker the same as other employees, and their later descriptions that those
objections were to DOC’s unlawful discriminatory treatment of Jones and Parker.
The two are in harmony.
Even more fundamentally, we disagree with the District’s contention that
appellants’ contemporaneous words did not convey a subjective belief that DOC’s
conduct was unlawful. The District makes much of the fact that, in the course of
questioning their superiors’ disparate treatment of Jones and Parker, appellants only
characterized DOC’s conduct as “unfair” and “unethical,” rather than “unlawful” or
“illegal.” But appellants’ failure to use legal terminology or to specifically mention
the DCHRA in their objections is not fatal. If the “‘complaint of unlawful
discrimination may be inferred or implied’ from the surrounding facts,” then a
whistleblower “need not employ any ‘magic words’ such as ‘discrimination.’”
McFarland v. George Wash. Univ., 935 A.2d 337, 359 (D.C. 2007) (quoting Carter-
Obayuwana v. Howard Univ., 764 A.2d 779, 791 (D.C. 2001)) (ellipses and
emphasis omitted); see also Langer v. Dep’t of Treasury, 265 F.3d 1259, 1266 (Fed.
belief because he admitted during deposition that he did not believe his employer’s conduct was potentially illegal until after he made his purported protected disclosure). 24
Cir. 2001) (reviewing surrounding circumstances to determine whether employee’s
statements “implicat[ed] an identifiable violation of law, rule, or regulation”). 9
Here, there is ample evidence that appellants believed they were objecting to
the unlawful treatment of two DOC employees. Jones and Parker were singled out
for differential treatment after filing a sexual orientation discrimination lawsuit
against DOC. Appellants were each aware of this, and each testified or swore under
oath to having knowledge of the disparate treatment Jones and Parker were subjected
to:
• Holbrook testified that there “was a culture among [the] supervisors” not to assist Jones and Parker because of the 2007 lawsuit, and that Director Faust “made it clear . . . that Jones and Parker [did] not run anything.”
• Johnson testified that staff members “were all asked to treat [Jones and Parker] differently,” that Director Faust said “he wanted something done . . . starting with the front-line staff” because he “was tired of complaints and stuff coming from Parker and Jones,” and that during command meetings, the supervisory staff would “gear [them] up towards targeting” Jones and Parker for disciplinary infractions.
• Bishop testified that everybody understood they were expected to make Jones’s and Parker’s lives “miserable on the shift” given the number of times Director Faust told his staff
9 When interpreting the WPA, we consider case law applying the federal whistleblower statute instructive. Wilburn, 957 A.2d at 925. 25
that they “need[ed] to show Jones and Parker that they’re not running the facility.”
• And Snow swore under penalty of perjury that he witnessed the unlawful treatment of Jones and Parker from 2002 until 2012, and that supervisors identified Jones and Parker as “‘troublemakers’ because they filed complaints and workers’ compensation claims.”
With that context, their reports of discriminatory treatment provide compelling
support for their testimony that they believed DOC was acting illegally.
b. Objectively Reasonable Belief
There was evidence from which a jury might also conclude those beliefs were
reasonable. This step of the inquiry asks whether “a disinterested observer with
knowledge of the essential facts known to [the whistleblower] could reasonably
conclude that the actions of” DOC evidenced illegality. Johnson, 225 A.3d at 1276.
Considering the record evidence detailed above regarding what each appellant
individually heard and knew about DOC’s treatment of Jones and Parker, 10 a jury
could readily find their beliefs were reasonable.
10 As we explained in Freeman, 60 A.3d at 1152, an employee’s belief cannot be considered reasonable under the “disinterested observer” test if they were not actually aware of the facts that made their belief reasonable. For that reason, we view appellants’ knowledge of DOC’s alleged discriminatory treatment of Jones and Parker individually as opposed to collectively. 26
The trial court found otherwise and summarily concluded that appellants’
objections evidenced only a “disagreement” with their supervisors’ directions, so a
“disinterested observer” could not have reasonably believed that appellants’
objections evidenced illegal conduct. For support, the trial court cited District of
Columbia v. Poindexter, 104 A.3d 848 (D.C. 2014), where this court stated that
“debatable differences of opinion concerning policy matters are not protected
disclosures.” Id. at 855 (citing White v. Dep’t of the Air Force, 391 F.3d 1377, 1382
(Fed. Cir. 2004)). But appellants’ objections were not mere differences of opinion
over policy decisions; they were objections to unlawful discriminatory treatment.
And as the Federal Circuit explained in White—which this court relied upon in
Poindexter—disclosures involving “a reasonable belief that a violation has
occurred” are protected even if “the existence of an actual violation may be
debatable.” 391 F.3d at 1382 n.2; id. (“The non-debatable requirement does not, of
course, apply to alleged violations of statutes or regulations.”). The trial court’s
reliance on Poindexter is thus misplaced.
The District offers two additional arguments for why no jury could conclude
appellants’ beliefs were reasonable, but neither is convincing. First, the District
asserts that it would have been “implausible” for a “supervisory officer[] well-versed
in the chain of command” to “reasonably believe[] that the DCHRA governed a 27
directive that a Major rather than a Captain handle . . . mine-run personnel matters.”
But appellants do not allege that the DCHRA is violated whenever a DOC policy
dictates who should handle work requests. They allege that the DCHRA is violated
when “mine-run personnel matters” are used as a weapon to retaliate against an
employee’s right to complain about discriminatory treatment in the workplace.
There is nothing implausible about that.
Second, citing Freeman, 60 A.3d at 1152, the District claims appellants never
sought clarification as to whether DOC’s instructions violated the DCHRA and thus,
they should not be rewarded for remaining “unjustifiably ignorant of information
that would have refuted or cast doubt on [their] charges.” While it is true that facts
“readily ascertainable” to a purported whistleblower that would defeat an inference
of wrongdoing under the WPA must be considered when divining reasonableness
under the “disinterested observer” test, id., the District is curiously silent as to what
“readily ascertainable” information could have “refuted or cast doubt” on appellants’
DCHRA charges. Not only that, it completely ignores Bishop’s testimony that on at
least three separate occasions he asked what possible legitimate reasons DOC had
for its disparate treatment of Jones and Parker, 11 only to be stonewalled each time.
11 The three occasions include: (1) when Bishop asked his supervisor why he could not sign Jones’s workers’ compensation claim, he was told to “leave Parker 28
Whistleblowers are not “unjustifiably ignorant” if their inquiries go unanswered, or
when there is no compelling reason to think the answers to their inquiries would
have dispelled rather than confirmed their beliefs.
B. Causal Nexus between the Conduct and the Terminations
Because appellants presented sufficient evidence that their conduct was
protected under the WPA, we consider whether evidence supported that such
conduct was a “contributing factor” to their respective terminations. D.C. Code § 1-
615.54(b). In other words, we consider whether appellants’ refusals to follow
DOC’s illegal orders or their objections to DOC’s unlawful retaliatory treatment of
Jones and Parker were causally connected to DOC’s decisions to terminate them.
See Kolowski v. District of Columbia, 244 A.3d 1008, 1013 (D.C. 2020) (citing D.C.
Code § 1-615.52(a)(2)). There is sufficient evidence to support that causal nexus.
and Jones alone”; (2) when Bishop asked another supervisor why Jones and Parker could not be treated according to “normal procedure[],” the supervisor responded with, “just do what I tell you to do”; and (3) when Bishop then sought a meeting with that same supervisor to discuss his complaint about the blowback he was receiving as a result of his refusal to treat Jones and Parker differently, he waited for four hours without his supervisor showing up and was never able to reschedule the meeting. 29
The District maintains, to paraphrase: (1) that appellants have produced no
smoking gun establishing that their terminations were motivated by retaliatory
animus, and (2) that the temporal proximity between appellants’ protected conduct
and their terminations is not, by itself, sufficient to give rise to an inference of
causation. Maybe so, but neither point is of much help to the District. As to the
first, it is quite “common that causation elements dependent upon the intent of an
actor would be proven by circumstantial rather than direct evidence.” Payne v.
District of Columbia, 722 F.3d 345, 354 (D.C. Cir. 2013). As to the second, whether
the timing of appellants’ terminations vis-à-vis their protected conduct is itself
sufficient to give rise to an inference of causation is of little moment. There is much
more than temporal proximity supporting a causal nexus in each of appellants’ cases.
See generally Kachmar v. SunGuard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir.
1997) (asking whether “the proffered evidence, looked at as a whole . . . suffice[s]
to raise the inference” of causation in analogous Title VII context).
Director Faust told his staff that Jones and Parker “didn’t run this fucking
agency,” that he was “tired of complaints and stuff coming from [them],” and that
“the train [was] leaving the station” so that if staff members did not “get onboard
and start thinking and doing things his way, then [they] wouldn’t be on the train.”
Lo and behold, when appellants refused to hop aboard, they were fired, which is 30
precisely what their bosses warned them would happen if they did not start being
“team player[s].” 12 When an employer threatens to fire any employee who refuses
to obey an order, and then follows through on that threat, it is not hard to infer that
the employee’s termination was causally related to that refusal. See Kachmar, 109
F.3d at 178-79 (employer’s statements that its employee’s complaints about gender
discrimination could negatively impact the employee’s job prospects was sufficient
to infer the employee’s termination was causally related to those complaints). That
is particularly true where, as in this case, the employer’s stated reasons for firing the
whistleblowing employees are dubious. See infra Part III.
The District persists that appellants did not offer any evidence that Director
Faust—the person who ultimately decided to terminate them—was aware of
appellants’ protected conduct. It is true that an employer’s awareness of its
12 After Bishop signed Jones’s workers’ compensation forms, his supervisor told him “you’re going to have to listen to me or they are going to fire you.” He was also told that he was “pissing some people off” after he granted a leave request for Parker, and was informed about a week before his termination that the Warden “wanted to fire him because of [his] interaction with Jones and Parker.” After Johnson signed off on Parker’s workers’ compensation form, her supervisor informed her that she would get in “trouble” because “nobody be approving no paperwork for Parker and Jones.” When Johnson proceeded to substantiate the claim, her supervisors called her into a meeting, said she “needed to understand the position . . . [she] had undertook as an employee,” that she was “expected to be a team player,” and that she wasn’t being one at the moment, which could “cost” her. 31
employee’s engagement in protected activity is “essential to making out a prima
facie case for retaliation.” McFarland, 935 A.2d at 356. But, again, appellants did
not need to produce a smoking gun; it was enough for them to “offer circumstantial
evidence that could reasonably support an inference that” Director Faust was aware
of their activity. Bryant, 102 A.3d at 269 (citing Jones v. Bernanke, 557 F.3d 670,
679 (D.C. Cir. 2009)). They did that by, among other things, adducing evidence that
Director Faust indicated any employee who did not “get onboard” with the
retaliatory scheme directed at Jones and Parker would be fired; here we have four
employees who did not get onboard and were then fired—each on the same day as
one of the others, no less. See O’Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1253
(10th Cir. 2001) (evidence showing that complainant was the only employee whose
hours were reduced after filing a discrimination complaint was sufficient to infer
retaliatory motive).
Our recent decision in Kolowski does not point to a different result, as the
District argues. In Kolowski, the purported whistleblower claimed a jury could infer
his employer was aware of his protected disclosure—despite his employer testifying
that he was not—because (1) there was an “expectation” that the employer would be
kept “apprised of all important issues,” and (2) the whistleblower claimed his
employer’s stated reason for terminating him was a “sham.” 244 A.3d at 1014. We 32
disagreed, explaining that the proffered circumstantial evidence was too speculative
because there was no evidence to suggest the employer was actually apprised of
important information—or that the whistleblower’s protected disclosure was
important enough to warrant informing the employer about—and there was no
evidence from which a jury could infer that the employer’s stated reason for
terminating the whistleblower was a sham. Id. at 1014-15.
The evidence of Director Faust’s knowledge of the protected conduct is much
stronger than what we confronted in Kolowski. It is not mere conjecture to infer that
an employer who threatens to fire employees if they refuse to retaliate against two
colleagues, and then fires four employees who refused to do so, was aware of their
refusals to comply. And, for the reasons outlined in Part III—unlike in Kolowski—
there is evidence substantiating that DOC’s stated reasons for firing appellants were
a “sham.” Although the burden of production lay with appellants to present a prima
facie case, it is also noteworthy that Director Faust—again, unlike the employer in
Kolowski—never disclaimed knowledge of appellants’ protected conduct. 13
13 This court has previously recognized that McFarland’s “employer awareness” requirement could be limited if an employee established causation based on a “cat’s paw” theory of liability. See Bryant, 102 A.3d at 268 n.3; see also Staub v. Proctor Hosp., 562 U.S. 411, 418-20 (2011) (recognizing that liability could be found under Title VII where the ultimate decisionmaker was not motivated by discriminatory animus, but a lower-level supervisor was and proximately caused the 33
III.
The existence of a prima facie case does not end the inquiry, however. That
is because an employer may rebut a prima facie showing by presenting clear and
convincing evidence that the whistleblowing employee’s termination “would have
occurred for legitimate, independent reasons even if the employee had not engaged
in protected activities.” Freeman, 60 A.3d at 1141 (quoting D.C. Code § 1-
615.54(b)); see Crawford v. District of Columbia, 891 A.2d 216, 219 (D.C. 2006).
The trial court did not reach this issue—believing appellants had not demonstrated
a prima facie case—but the District presses it as an alternative basis for affirmance.
See Wilburn, 957 A.2d at 924 (appellate court may affirm on alternative grounds).
Because the argument was preserved below, is fully briefed on appeal, and is heavily
intertwined with the factual record already discussed, we exercise our discretion to
consider it. The District argues it established, as a matter of law, that appellants
were fired for legitimate reasons independent from their protected conduct. We
disagree.
challenged employment action). Although this theory is arguably available to Johnson, see infra Part III.C, she did not raise it. In any event, we need not decide whether a cat’s paw causation theory is applicable here given the circumstantial evidence that Director Faust was personally aware of appellants’ protected conduct. 34
A. James Holbrook and Larry Bishop
According to the District, Holbrook and Bishop were fired on the same day
because they “pursued inappropriate personal relationships with female
subordinates.” But all it offers as substantiation are two form letters stating that
Holbrook and Bishop defied orders by engaging or attempting to engage in such
relationships. The letters give no specifics—no who, what, when, or where. Nor
was any additional information supplied during discovery to fill the informational
gap. DOC’s Rule 30(b)(6) 14 deponent could only testify as to what the contents of
the letters said; she had no knowledge as to the underlying facts or whether any
investigation was conducted into the merits of the allegations. An unsubstantiated
form letter is hardly clear and convincing evidence.
There are also many reasons to doubt this was the true reason for their firings.
For instance, both Holbrook and Bishop denied ever engaging in any inappropriate
relationships. That is about as much as they can do to dispute the non-existent details
supplied in the two form letters. There is also evidence in the record that Bishop
14 Pursuant to Superior Court Rule of Civil Procedure 30(b)(6), an organization served with a deposition subpoena must “designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf.” DOC did not designate Director Faust for this role. 35
and Holbrook never actually received those form letters as both disclaimed any
knowledge of that being the purported reason for their terminations. Indeed,
Holbrook and Bishop both stated in appellants’ joint complaint that they believed
their terminations were the result of an alleged reduction in force. If they are
believed, and they were never informed of this ostensible reason for their
terminations, that is probably reason enough to doubt that this was an independent
and legitimate reason for their terminations. And combined with everything else,
we have no doubt that a jury could reject the District’s purportedly independent
reasons for Holbrook’s and Bishop’s terminations.
B. Collins Snow
The District’s justification for Snow’s dismissal—that he was terminated as a
part of a reduction in force—is similarly unsubstantiated. For all we can tell, the
reduction in force was limited to the appellants in this case. That does not clearly
convince us that Snow’s termination was independent of his protected conduct.
Enough evidence exists for a jury to find that the District’s proffered reason for
Snow’s termination was a mere pretext. 36
C. Sonji Johnson
The evidence is admittedly stronger that there was an independent basis for
firing Johnson. The District submitted a memorandum which detailed an incident
involving alleged insubordination by Johnson “during an altercation with inmates.”
This memorandum supplies the necessary specifics that were lacking in Holbrook’s
and Bishop’s letters. It states who was involved, what happened, when it happened,
and where it occurred, giving it more legitimacy. Still, there is too much evidence
that Johnson was fired for her protected conduct for us to say as a matter of law that
Johnson was fired for the seemingly legitimate reasons noted in the memorandum.
In a sworn affidavit, Johnson states she was informed during her exit interview
that DOC was letting her “go as part of a reduction in force,” and that she did not
become aware of the District’s now-stated reason for her termination until the
deposition of DOC’s Rule 30(b)(6) designate. For reasons already explained, we
find it significant that Johnson was not informed of the ostensible reason for her
termination at the time, but instead was given a different explanation. See Guz v.
Bechtel Nat’l Inc., 8 P.3d 1089, 1114 (Cal. 2000) (“[E]vidence of dishonest reasons,
considered together with the elements of the prima facie case, may permit a finding
of prohibited bias.”); Waddell v. Small Tube Prods. Inc., 799 F.2d 69, 73 (3d Cir. 37
1986) (inferring retaliation where employer offered inconsistent reasons for
terminating an employee).
Johnson also swore that she could not recall the alleged act of insubordination
and questioned the veracity of her supervisor in reporting that the event occurred.
That skepticism is not unfounded. The supervisor who claimed to have witnessed
Johnson’s insubordination (David Holmes) and the supervisor who authored the
memorandum detailing her insubordination (Simon Wainwright) had only a few
months prior gotten into a dispute with Johnson about her refusal to participate in
DOC’s retaliation against Jones and Parker, suggesting the memorandum itself may
have been retaliatory. DOC’s shifting reasons for Johnson’s termination, the
potential fabrication of the memorandum alleged to be the reason for her
termination, and the circumstantial evidence of DOC’s retaliatory motive detailed
above, are all reasons a jury might reject the legitimacy of DOC’s stated reason for
Johnson’s termination. We thus do not affirm the grant of summary judgment on
this alternative ground.
In sum, for us to affirm the trial court’s grant of summary judgment based on
the District’s stated reasons for terminating appellants, we would have to conclude
that “any reasonable juror would have to find that the [District] had proven the 38
legitimacy of its action by ‘clear and convincing evidence.’” Coleman v. United
States, 794 F.3d 49, 60 (D.C. Cir. 2015) (quoting D.C. Code § 1-615.54(b)). The
paltry evidence the District marshals as “legitimate reasons” for appellants’
terminations, combined with the substantial evidence outlined above that would
permit a jury to infer those “legitimate reasons” were mere pretext, convinces us that
the District has not cleared this hurdle as to any appellant.
IV.
We reverse the Superior Court’s grant of summary judgment in favor of the
District and remand for further proceedings.
So ordered.