Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 17-CV-485
NANCY JOHNSON, APPELLANT,
V.
DISTRICT OF COLUMBIA, ET AL., APPELLEES.
Appeal from the Superior Court of the District of Columbia (CAB-6045-12)
(Hon. Maurice A. Ross, Trial Judge)
(Argued September 17, 2019 Decided March 12, 2020)
David A. Branch for appellant.
Stacy L. Anderson, Senior Assistant Attorney General, with whom Karl A. Racine, Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General, and Caroline S. Van Zile, Deputy Solicitor General, were on the brief, for appellee.
Before FISHER, THOMPSON, and BECKWITH, Associate Judges.
FISHER, Associate Judge: Appellant Nancy Johnson filed a civil complaint
challenging her termination from the Office of the Attorney General for the
District of Columbia (“OAG”) and now appeals the trial court’s decision granting
summary judgment to appellees. She claims that the trial court erred in: (1) 2
determining that certain communications were not protected disclosures under the
District of Columbia Whistleblower Protection Act (“DCWPA”), D.C. Code §§ 1-
615.51 to –.59 (2012 Repl.); (2) determining that appellant had not made a prima
facie showing that any protected disclosures caused her termination; (3) finding
that appellant and another employee were not similarly situated for purposes of
establishing an inference of discrimination under the District of Columbia Human
Rights Act (“DCHRA”), D.C. Code §§ 2-1401.01 to -1402.83 (2016); and (4)
determining either that appellant had not established a prima facie case or had not
rebutted the non-discriminatory reason given by appellees for her termination. We
affirm.
I. Background
Nancy Johnson is an African-American attorney who joined the Child
Support Services Division (“CSSD”) of OAG in November 2005. She was
employed there until January 2012, when her termination was finalized.
As the chief of the Legal Services Section (“LSS”), Johnson reported
directly to Benidia Rice and Cory Chandler, who were in turn supervised by
Eugene Adams, the Chief Deputy Attorney General, and Irvin Nathan, the 3
Attorney General. 1 Johnson’s duties included supervising CSSD’s litigation
activities, reviewing pleadings prepared by line attorneys, and formulating and
implementing policy in tandem with the rest of the management team.
Around June 2009, the responsibility of reviewing, signing, and filing civil
contempt motions and establishment petitions 2 was transferred from Johnson’s
section to another CSSD section, Program Operations. Adrianne Day, an attorney
and the chief of Program Operations, began to sign the filings. The management
team also decided to automate the process by using an internal database, known by
the acronym “DCCSES,” to generate the motions and petitions. During the 90-day
pilot period of using the database in this way, Johnson discovered that the
contempt motions sometimes included erroneous information, such as an incorrect
date of issuance for support orders that CSSD was seeking to enforce. She met
with Rice and Chandler to address this issue and expressed her concerns. Rice
then asked Johnson and the Assistant Chief of LSS, Curtis Staley, to review a
sampling of the filings generated by the database to see if the errors discovered
were isolated incidents or indicative of a large-scale problem. That review
1 The named defendants in this case—who are now the appellees—are the District of Columbia, Irvin Nathan, Benidia Rice, and Eugene Adams. 2 Establishment petitions included petitions to establish paternity and petitions to establish child support. 4
revealed a large-scale problem, as they found a 68% error rate in the sampling.
The management team took remedial steps to address the issue.
Approximately a year later, in September 2010, a member of the Information
Technology section discovered that the DCCSES system was making some
additional mistakes, such as listing the wrong parents for children or providing
incorrect birth dates. After learning of the issue, Johnson brought the concerns to
the management team. The record does not disclose what remedial steps the
management team took to address this issue.
In April 2011, a magistrate judge ordered Day to show cause why she should
not be sanctioned for signing a petition to establish paternity without conducting an
adequate investigation of the grounds supporting it. Though Day had signed the
petition, an attorney working under Johnson’s supervision in LSS had attempted to
defend it in court. However, that attorney did not explain to the court that CSSD
had complied with the preconditions for re-filing the case. Day maintained that the
petition was properly filed, but became concerned about the risk to her license to
practice law created by the unusual institutional arrangement of having motions
and pleadings that she had signed being defended in court by an attorney not under
her supervision. Because of this concern, Day began to refuse to sign and file the 5
motions that had been transferred to her section in 2009. The management team
decided that her concerns were valid. Spurred by the need to shift that
responsibility elsewhere, defendants decided to commence a reorganization of
CSSD. As part of that reorganization, the management team decided to disband
the Program Operations section and to disperse its functions across CSSD, with
each remaining section receiving some new responsibilities.
At this point, the management team informed Johnson that the motions Day
had been signing would be shifted to Johnson’s section—a duty for which Johnson
had been responsible prior to June 2009. Because Day was no longer signing and
filing motions and the function could not be transferred immediately, a backlog of
filings accumulated.3 Rice recognized that cleaning up the backlog would be a
burden, but emphasized to both Johnson and Assistant Chief Staley that “[i]t is
fairly clear that we are in dire circumstances. CSSSD [sic] will need your support
to get out of this current state of affairs.” The management team offered
compensatory time to attorneys who helped resolve the backlog and, as a result, the
backlog was cleared in less than thirty days.
3 Some of the backlog appears to be related to miscommunication during a period in which Day was not signing petitions, believing that Adams had relieved her of this responsibility, while Rice was under the impression that Day was still signing them. 6
After detailing her concerns, Day requested and was granted a transfer out of
CSSD on June 7. She drafted a transfer memo at Rice’s request, which was the
second time she listed and described her duties so that the management team could
prepare for transferring them elsewhere. Along with Day’s petition-signing duties,
the management team indicated that Johnson would inherit other functions during
the reorganization. Other functions that Program Operations had previously
performed were transferred to other parts of CSSD. Johnson argued that her new
supervisory duties raised ethical issues, but the Chair of OAG’s Ethics Committee
decided that the proposed reorganization would not create an actual or potential
conflict of interest. After receiving notice of that decision, Johnson raised
concerns about the increased workload she would face with her additional duties.
Throughout the summer, as the management team planned and began to
implement the reorganization, Johnson was asked to comment on certain proposed
policies after she raised concerns about their advisability. She was also instructed
to produce policies and procedures related to her duties, such as an office policy
governing appropriate steps for establishing paternity. The management team
repeatedly stressed that they needed Johnson’s support in various transition-related
tasks in order for the reorganization to be successful. Johnson completed some 7
tasks, often after receiving multiple prompts from other members of the
management team, but did not complete others. When pressed on why she was not
completing assignments, Johnson repeatedly cited her “confusion” about various
policies and processes, the exact task assigned to her, or the reorganization more
generally.
In the midst of growing tension between Johnson and others, especially with
her direct supervisor, Rice, Johnson requested a transfer from CSSD along with a
salary review. She escalated this request to AG Nathan when Deputy AG Adams
did not promptly respond to multiple e-mails on the topic. She eventually met with
Adams on or around September 7, 2011. On September 29, 2011, Adams
informed Johnson of the proposal to terminate her. The letter to Ms. Johnson,
signed by Benidia Rice, explained that “[t]his disciplinary action is being proposed
because of your demonstrated failure to support the mission and goals of the
Division and deliberate attempts to decrease productivity and efficiency in your
section.” “In your capacity as Section Chief you have displayed a serious lack of
judgment and deficiency in leadership to fulfill the mission of LSS.” Johnson’s
“responsibility was to lead the unit” during the restructuring of CSSD, “with a goal
of increasing child support orders and payments,” but “[s]imply put, since I first
communicated the new structure to you, you have served as an obstructionist.” 8
“CSSD has much work to do and I need you to be a team player, especially at a
time when we are facing [federal] penalties because of declining numbers . . . . I
have lost all confidence in your ability to lead the Legal Unit in the direction that I
think we need to go in order to increase child support collections.”
Attorney General Nathan made the final decision to terminate appellant
Johnson. He found that Johnson “indeed failed to support the restructure [of
CSSD] by your actions or inactions in a circumstance where your support was
needed and reasonably expected. Because you were a manager and a person that
would be instrumental in helping with the restructuring and the anticipated
efficiencies that would come from it, your persistent failure to support Ms. Rice’s
goals for CSSD and embrace your new management responsibilities was critical.”
Given Johnson’s varied responsibilities during her tenure as Chief of LSS, and her
“involvement in the Executive Team discussions about the restructure . . . , your
continued complaints that you did not understand your role or responsibility—and
your continued efforts to resist these assignments—demonstrated your lack of
commitment to do the work Ms. Rice needed you to do.” Nathan also explained
that he was “troubled with the level of disdain shown through your email
communications with Ms. Rice in several of your responses. . . . After simple
requests made by Ms. Rice, your reaction was immature, inappropriate and 9
demonstrated a desire to challenge Ms. Rice’s goals as director of CSSD.” 4 This
termination effectively denied Johnson’s request for a transfer.
Shortly thereafter, Johnson filed this suit, claiming that her communications
related to the use of the DCCSES database and the reorganization of CSSD were
protected disclosures and that refusing to accommodate her request for a transfer,
while terminating her instead, showed that she was treated differently than
Adrianne Day because of her race. She alleges that her termination thus violated
the DCWPA and the DCHRA.
II. Legal Analysis
A. Standard of Review
Summary judgment is appropriate if there is no genuine dispute as to any
material fact and the moving party is entitled to judgment as a matter of law.
Joeckel v. Disabled Am. Veterans, 793 A.2d 1279, 1281 (D.C. 2002). Evidence
should be viewed in the light most favorable to the non-moving party, but “mere
4 Nathan found that it was “an open question” whether Johnson had intentionally attempted to reduce productivity and efficiency in her section. 10
conclusory allegations . . . are legally insufficient to avoid the entry of summary
judgment.” Id. “[T]here is no issue for trial unless there is sufficient evidence
favoring the nonmoving party for a jury to return a verdict for that party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). We review grants of
summary judgment de novo. District of Columbia v. Place, 892 A.2d 1108, 1110–
11 (D.C. 2006).
B. Appellant Has Not Established a Prima Facie Case Under the DCWPA
1. Legal Standard
The DCWPA “declares that the public interest is served when employees of
the District government are free to report waste, fraud, abuse of authority,
violations of law, or threats to public health or safety without fear of retaliation or
reprisal.” D.C. Code § 1-615.51. Nevertheless, the statute is not meant to be “a
weapon in arguments over policy or a shield for insubordinate conduct,” Zirkle v.
District of Columbia, 830 A.2d 1250, 1260 (D.C. 2003), and does not cover
disclosures that are “minor relative to the scope of the agency’s work.” Williams v.
Johnson, 776 F.3d 865, 871 (D.C. Cir. 2015) (summarizing previous decisions
applying DCWPA). A purported whistleblower “must disclose such serious errors 11
by the agency that a conclusion the agency erred is not debatable among
reasonable people.” Wilburn v. District of Columbia, 957 A.2d 921, 925 (D.C.
2008).
To establish a case under the DCWPA, Johnson must show that a supervisor
took, or threatened to take, “a prohibited personnel action or otherwise retaliate[d]
against” her because of her “protected disclosure” or her “refusal to comply with
an illegal order.” D.C. Code § 1–615.53(a). Though more categories are
delineated in the statute, only two kinds of protected disclosures are alleged here:
“gross mismanagement” and “a violation of a . . . law, rule, or regulation.” D.C.
Code § 1-615.52(a)(6). Gross mismanagement consists of “a management action
or inaction that creates a substantial risk of significant adverse impact on the
agency’s ability to accomplish its mission.” District of Columbia v. Poindexter,
104 A.3d 848, 855 (D.C. 2014). Violations of a law, rule, or regulation must not
be “merely technical or minimal” in nature. D.C. Code § 1-615.52(a)(6)(D).
Plaintiffs who allege violations of law or gross mismanagement must show
that they had a reasonable and genuine contemporaneous belief that the actions
they disclosed rose to the level of seriousness required under the DCWPA. Zirkle,
830 A.2d at 1260. This requirement is both subjective and objective; in other 12
words, the employee must provide evidence that she genuinely believed that the
action or inaction was gross mismanagement or a violation of law, but she also
must show that her belief was objectively reasonable. See Freeman v. District of
Columbia, 60 A.3d 1131, 1151–52 (D.C. 2012). To determine if a belief is
objectively reasonable, we ask whether “a disinterested observer with knowledge
of the essential facts known to . . . the employee [could] reasonably conclude that
the actions of the government evidence” illegality or gross mismanagement.
Zirkle, 830 A.2d at 1259–60 (quoting Lachance v. White, 174 F.3d 1378, 1381
(Fed. Cir. 1999)). To determine if the employee subjectively held such a belief, we
look to “the statements in her complaint to a supervisor or to a public body, not her
subsequent characterization of those statements in litigation.” Wilburn, 957 A.2d
at 925 (brackets and internal quotation marks omitted).
2. Purportedly Protected Disclosures
Johnson primarily argues that her communications related to the use of the
DCCSES database were protected disclosures. 5 Because she points to multiple
5 While Johnson’s arguments in the trial court pointed to a variety of complaints as potentially protected disclosures—nineteen in total—she does not offer argument as to most of them in her appellate brief. Therefore, we focus where she centers her attention: the continued use of the automated DCCSES (continued…) 13
moments in time, claiming each incident individually constituted a protected
disclosure about the continued use of the DCCSES database, we address each
alleged disclosure chronologically.
In 2009, CSSD decided to utilize the DCCSES database in a new way by
automating the process for generating establishment petitions and civil contempt
motions.6 At this time, CSSD had maintained and utilized the DCCSES database
for other functions for more than twenty years and it was passing its annual data
audits. As the internal memorandum distributed to staff explained, the goal of this
transition was to “improv[e] agency performance and efficiency.” The
management team began the transition with a two-week trial period, followed by a
ninety-day pilot period, both designed “to identify any problems associated with
(…continued) database to generate filings and her dissatisfaction with the related reorganization effort. Although she occasionally refers in her brief to some of these other complaints, we hold that any claims based upon them are waived. “Issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.” McFarland v. George Washington Univ., 935 A.2d 337, 351 (D.C. 2007). “[I]t is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel’s work, create the ossature for the argument, and put flesh on its bones.” Gabramadhin v. United States, 137 A.3d 178, 187 (D.C. 2016). 6 Though Johnson had argued to the trial court that the 2009 decision violated the DCWPA, she now seems to concede that the initial decision to automate the process was a “debatable policy call.” However, because it provides vital context for later issues with the database, we address it at some length. 14
the process including, but not limited to, system programming, policy or
procedures.” The memorandum actively solicited feedback, encouraging staff
members to “[p]lease report all system problems and concerns” and creating
multiple levels of review to consider responses.
As part of the management team, Johnson participated in numerous
conversations about the decision to make this change. The relevant positions of
the management team members are undisputed. In short, Johnson believed that the
electronic system could not be as effective or accurate as more stringent attorney
review; Rice would reply that “there were federal time lines and measures that
needed to be met and that the Agency was moving away from paper files.”
Meanwhile, Day thought the processing by Johnson’s unit “was inefficient and that
it was slowing the process to bring these matters to Court” and had “an excessive
level of review” because the cases “were not that complicated.”
These conversations reflected a debate within the management team about
the benefits and risks of moving to a more automated process. As Johnson stated
in her deposition, she “had an overall general concern” that it was not the right
decision to ramp up use of the DCCSES database. But Johnson’s general concern
cannot change the essential character of this decision; it was “an exercise of . . . 15
administrative discretion” on a “policy choice.” Zirkle, 830 A.2d at 1258, 1260.
“Mere differences of opinion between an employee and an agency supervisor as to
the proper approach to a particular problem or the most appropriate course of
action do not rise to the level of gross mismanagement.” Poindexter, 104 A.3d at
855 (brackets omitted). Johnson’s concerns do not evidence a contemporaneous
belief that the transition was gross mismanagement. See Wilburn, 957 A.2d at 926
(“In none of her communications . . . did Wilburn . . . us[e] the language of ‘gross’
waste or abuse, or of ‘violations,’ or any of the other abuses listed in section
615.52(6), or any similar language.”).
Johnson’s claims thus fail for at least three independent reasons: (1) she has
not presented evidence that she had—and expressed—a contemporaneous belief
that using the DCCSES database as part of an increasingly automated process was
such a grievous error that it threatened the very mission of CSSD; (2) she has not
presented evidence showing that this belief, if she had held it, would have been
objectively reasonable; and (3) the issue is not appropriately classified as whistle-
blowing, but was instead a question of policy that was being discussed among the
management team (of which Johnson was a member). 16
The next instance appellant points to is the September 2010 discovery that
the automated process was producing some previously undiscovered errors, such as
listing incorrect birthdates for dependent children or misidentifying their parents.
However, even assuming that Johnson’s amplification of these issues—which were
actually discovered by another employee—could qualify as whistleblowing,7
Johnson has not demonstrated that this claim differs in any significant way from
the concerns she voiced in 2009. She again presents general arguments against
using the automated system—and the management team was already well aware of
her displeasure with the DCCSES database—but the only change between the
initial management decision and this moment in time was that an uncertain number
of new errors were discovered by another person.
Viewing the evidence in the light most favorable to appellant, the crux of the
conversations between appellant and other members of the management team
appears to be a continuation of the same policy debate—one in which appellant
“believe[d] . . . that it was worse than [she] had previously thought.” But Johnson
has not presented evidence that her concerns in September 2010 differed in kind
from what she admits was a policy call in 2009; she merely adds additional
7 Cf. Wilburn, 957 A.2d at 925–26 (citing cases reasoning that “disclosures” cannot already be publicly known, known to the persons the putative whistleblower reported to, or known by other supervisors). 17
evidence for her perspective on one side of that policy debate. Johnson also has
not presented any evidence that these new errors impacted any particular court
proceeding, let alone put CSSD’s mission itself at risk. Because of those
deficiencies, no reasonable juror could find that these errors were so grave as to
make the conclusion that the agency erred to such a significant degree that its
mission was threatened “non-debatable.” See Poindexter, 104 A.3d at 856
(granting judgment notwithstanding the verdict because the management decision
was “merely debatable” and “was not erroneous beyond debate”) (internal
quotation marks omitted).
Johnson comes closer to pointing to a particular disclosure, rather than a
generalized grievance, when she implies that the show-cause order issued to
Adrianne Day in April 2011 was related to the ongoing use of the DCCSES
system. In that incident, Day signed a petition to establish paternity in a case that
had been dismissed without prejudice in 2007. The 2007 petition, which included
the same parties, was dismissed because CSSD was unable to complete the
necessary genetic testing, and the court instructed CSSD to not re-file the case
“until the government locate[d] the petitioner” and completed the necessary
testing. Because the CSSD attorney—an attorney in Johnson’s section, rather than
Day’s—was unable “to represent to the court that [CSSD] ha[d] complied with the 18
condition . . . placed upon further action,” the court issued a show-cause order,
asking why it should not sanction Day for violating Super. Ct. Dom. Rel. R. 11.8
Johnson now contends that the order was “due to the inadequacy of the automated
system Appellee Rice insisted on using.”
However, there is no evidence that the show-cause order Day received
related to any flaws in the database, let alone that Johnson contemporaneously
believed there to be a relationship and believed that the issue exposed gross
mismanagement or a violation of law. “The DCWPA . . . makes clear that an
employee must have had such a belief at the time the whistle was blown in order to
state a claim under the DCWPA.” Freeman, 60 A.3d at 1143 (emphasis in
original). Johnson’s contemporaneous reaction was not to point to the database as
the culprit, but rather to blame the judge who issued the order for bias and
“inappropriate . . . conduct.”
8 Rule 11(b) states that “[b]y presenting to the court a pleading, written motion, or other paper, including an electronic filing—whether by signing, filing, submitting, or later advocating it—an attorney . . . certifies” that the motion is “warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law” and that “factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.” 19
Johnson also never disputed the evidence in the record indicating that the
petition in question was properly filed, and that the order instead stemmed from a
lack of preparation by one of the attorneys Johnson supervised. Moreover,
Johnson was not making a true disclosure when she told others about the order.
The order was issued to Day, its existence was commonly known among several
people within the office, and it was a matter of public record. See Wilburn, 957
A.2d at 925–26 (“disclosure of information that is publicly known is not a
disclosure under the WPA” and “issues already known to either the persons [the
plaintiff] reported to, or at least to other supervisory persons,” are not disclosures).
Her post hoc allegations that the use of the DCCSES database was related to this
show-cause order do not, and cannot, transform her report of the show-cause order
into a protected disclosure under the DCWPA.
At certain points, appellant seems to suggest that events in April 2011
bolster her claim that she was making protected disclosures in 2009 and 2010.9
The first flaw in this claim is the previously mentioned failure to connect the show-
cause orders to any error traceable to the DCCSES database. The second flaw is
9 Johnson implies that the issues CSSD encountered in April 2011 with the show-cause order demonstrate that Johnson’s earlier warnings were proven correct—and thus that her warnings had correctly identified the breadth and magnitude of the issues created by increased reliance on the database. 20
that pointing to the negative effects of managerial decisions does not, by itself,
establish that the initial decision was gross mismanagement. We cannot review
effects in isolation, but instead must look to the contemporaneous context,
including the reasons for the change, whether any negative effects were
foreseeable, how likely they were to occur and how harmful they were likely to be,
and what other factors—such as legal necessity, expected positive results, and any
need for expeditious action—may be relevant to determining whether the decision
was “non-debatabl[y]” a mistake and was creating “a substantial risk . . . to the
agency’s . . . mission.” Poindexter, 104 A.3d at 855. See also Rodriguez v.
District of Columbia, 124 A.3d 134, 143–44 (D.C. 2015) (holding that alleged
negative effects of investigation conducted by defendants were not dispositive of
whether those actions constituted gross mismanagement, as the larger context
revealed that “it would be tantamount to dereliction of duty if OAG had swept the
. . . problem under the rug”).
Lastly, Johnson claims that her numerous complaints about the proposed
reorganization of CSSD were protected disclosures. Among other things, she
alleges that her new duties would have caused her workload to be so onerous that it
would have violated her ethical duties as an attorney. However, she did not make a
record to show that her increased workload would violate Rule 1.3 of the D.C. 21
Rules of Professional Conduct or any other objective standard.10 More generally,
it is clear that Johnson’s purported “disclosures” with regard to the proposed
reorganization are not protected, nor are they truly disclosures. She was not
disclosing anything unknown to defendants, but rather resisting the policies they
had decided to promulgate. Johnson’s discussions regarding these decisions are
textbook examples of an employee being given an opportunity to comment on
potential organizational changes; she made her comments, they were considered,
and then the team finalized its decisions after taking her comments into account,
though not allowing her perspective to be dispositive. The DCWPA is intended to
protect employees who disclose matters of public import rather than to authorize
judicial review of personnel decisions or second-guessing of administrative
priorities. We conclude that none of the complaints Johnson presents on appeal
can survive summary judgment under the DCWPA. 11
10 Rule 1.3(a) provides that “[a] lawyer shall represent a client zealously and diligently within the bounds of the law.” Comment 1 to Rule 1.3 states that “[a] lawyer’s workload should be controlled so that each matter can be handled adequately.” 11 Because of our holding that there were no protected disclosures related to the DCCSES database or the 2011 CSSD restructure, we do not reach the issue of causation on Johnson’s primary arguments. However, we briefly discuss three additional events that the trial judge ruled could be protected disclosures but did not survive summary judgment because there was no proof of causation. In short, Johnson claims that she disclosed to Rice and Chandler that: (1) a contract employee presented a CSSD line attorney with a forged statement that had been (continued…) 22
C. Appellant Has Not Produced Evidence That the Reason Given for
Her Termination Was a Pretext for Racial Discrimination
The DCHRA has a burden-shifting framework. The employee is initially
(…continued) notarized by another District employee in August 2009; (2) around March 2010 a CSSD caseworker “inappropriately executed an Acknowledgement of Paternity in a case in which she had a familial relationship”; and (3) at some point in time, Day instructed caseworkers to white-out and amend interstate petitions and to file these altered petitions with the Superior Court. Two of those events occurred twenty-five and eighteen months, respectively, before Johnson’s termination. Appellant was unable to specify a date when the third “disclosure” may have occurred. As a result, Johnson has not carried her burden to show temporal proximity that can support an inference of causation. See Johnson v. District of Columbia, 935 A.2d 1113, 1120 (D.C. 2007) (holding that “a stretch of four months realistically cannot constitute temporal proximity”). Johnson also has not presented any evidence from which a “pattern of antagonism” can be discerned. See Tingling-Clemmons v. District of Columbia, 133 A.3d 241, 247 (D.C. 2016) (a pattern of antagonism can imply a causal connection, but must occur “soon after the disclosure and continu[e] to the alleged retaliation”) (internal quotation marks omitted). No reasonable jury could find that appellees were motivated by these disclosures when terminating Johnson long after the events in question, especially when Johnson has produced no evidence that any of the issues were ever mentioned in the intervening period. Given the paucity of facts in the record about these three alleged disclosures, and their lack of temporal proximity to appellant’s termination, they do not create a prima facie case of a DCWPA violation. 23
required to establish a prima facie case that she had been terminated because of her . . . race. If such a showing is made, the burden shifts to the employer to articulate a legitimate basis for the employee’s termination. If the employer articulates a legitimate, nondiscriminatory basis for the employee’s termination, the burden shifts back to the employee to demonstrate that the employer’s action was pretextual. Although the burden of production may shift from the employee to the employer and back to the employee, the employee retains the ultimate burden of persuading the finder-of-fact that the employer acted with discriminatory animus.
Blackman v. Visiting Nurses Ass’n, 694 A.2d 865, 868 (D.C. 1997).
In order to make out a prima facie case, the employee must show that: (1)
she belongs to a protected class; (2) she was qualified for the job at which she
suffered the prohibited action; (3) the prohibited action occurred despite her
employment qualifications; and (4) the prohibited action was based on the
protected characteristic. Id. at 868–69. In order to show that the prohibited action
was based on the protected characteristic, employees may either offer direct
evidence of discrimination or present facts raising an inference of discrimination.
An inference of discrimination can be raised by presenting evidence that a
“similarly situated” employee who did not share the protected characteristic
engaged in the same conduct, but was treated differently. Hollins v. Fed. Nat.
Mortg. Ass’n, 760 A.2d 563, 578 (D.C. 2000). “An employee is considered 24
similarly situated to the plaintiff for the purpose of showing disparate treatment
when all of the relevant aspects of the plaintiff’s employment situation are nearly
identical to those of the other employee.” Id. (internal quotation marks omitted).
The similarity between the two comparators “must exist in all relevant aspects of
their respective employment circumstances, which would surely include both their
rank in the company and the alleged misconduct.” Id. (citation omitted). To show
that alleged misconduct is sufficiently similar, the plaintiff and the comparator
must have “engaged in the same conduct without such differentiating or mitigating
circumstances that would distinguish their conduct or the employer’s treatment of
them for it.” Id. (quoting Mitchell v. Toledo Hospital, 964 F.2d 577, 538 (6th Cir.
1992)). If the plaintiff and the comparator are sufficiently similar, but do not share
the protected characteristic, a jury may infer that the prohibited action was based
on the protected characteristic. Id. at 576 (“[I]n order to establish a prima facie
case of racial discrimination in the decision to terminate, appellant had to come
forward with evidence that he was fired from a job for which he was qualified
while white employees, similarly situated to him, were not terminated, but rather
treated more leniently.”) (brackets omitted).
If the prima facie case is established, the employer must proffer a legitimate,
non-discriminatory reason for the prohibited action. If that occurs, the burden of 25
production shifts back to the employee to demonstrate that the ostensibly
legitimate reason was pretextual; that is, “that the employer’s stated justification
for its action was not its true reason but was in fact merely a pretext to disguise
discriminatory practice.” Hollins, 760 A.2d at 571 (internal quotation marks
omitted). “This burden merges with the ultimate burden of persuasion on the
question of intentional discrimination.” Atl. Richfield Co. v. District of Columbia
Comm’n on Human Rights, 515 A.2d 1095, 1100 (D.C. 1986). To carry that
ultimate burden, the employee must show “both that the reason was false, and that
discrimination was the real reason.” Hollins, 760 A.2d at 571–72 (quoting St.
Mary’s Honor Center v. Hicks, 509 U.S. 502, 515 (1993)) (emphasis in original).
Thus, appellant must “present evidence showing not only that [the proffered
justifications] were a pretext for terminating [her] but also that they were a pretext
for terminating [her] because of [her] race, i.e., that race was the real motivating
factor.” Id. at 573 (emphasis in original).
2. Adverse Employment Actions
Johnson initially alleged that she had suffered multiple adverse employment
actions. However, during oral argument, counsel conceded that Johnson had not
established a prima facie case of pay disparity. Additionally, Johnson’s claim that 26
her workload increased to the point where it became a prohibited employment
action is not supported by the record; indeed, one of the core issues surrounding
her termination is that she never assumed many of the duties she was assigned.
She has not produced nearly enough evidence to demonstrate that her workload
increased to the point where it would become an act of discrimination cognizable
under the DCHRA. Because “mere conclusory allegations” do not suffice at the
summary judgment stage, Kotsch v. District of Columbia, 924 A.2d 1040, 1045
(D.C. 2007), her complaints about workload do not merit further analysis. Lastly,
she claims that the denial of her request for a transfer is an additional violation of
the statute. While the denial of a transfer may qualify as a prohibited employment
action under some circumstances, 12 here that denial is inextricably wrapped up
within her termination. Because the two essentially occurred simultaneously, we
do not see good reason to analyze them as separate events, and instead proceed to
discuss the termination issue.13
12 See, e.g., Lively v. Flexible Packaging Ass’n, 830 A.2d 874, 889 (D.C. 2003) (listing “denial of transfer” as a potential “discrete retaliatory or discriminatory act”). 13 While we ultimately affirm, we do not rely on the trial court’s statement that “it is clear from the oral argument that Plaintiff is not claiming discrimination under the DCHRA. She is claiming that others were accommodated, and she was not. That is not the law.” The denial of “accommodation” in the form of a transfer may be an adverse employment action. See Lively, 830 A.2d at 889. More (continued…) 27
3. Pretext
We hold that Johnson has failed to show that the non-discriminatory reason
presented by appellees for her termination was a pretext for racial discrimination.
Because she has failed to produce evidence sufficient to meet her burden of
production on that issue, she cannot meet her “ultimate burden of persuading the
trier of fact that the defendant intentionally discriminated against the plaintiff” and
summary judgment is appropriate. Hollins, 760 A.2d at 571 (quoting St. Mary’s
Honor Center, 509 U.S. at 507).
The asserted reason for Johnson’s termination—her failure to support and
lead the reorganization of CSSD—is a legitimate and non-discriminatory reason
with ample support in the record. Various defendants emphasized to Johnson at
numerous points between April and September 2011 that her support, as a leader in
CSSD, was crucial for the restructure to be a success. Despite this plainly
expressed need, Johnson did not complete some tasks related to the reorganization
and substantially delayed completing others. Johnson nonetheless claims that this
(…continued) broadly, disparate treatment can provide evidence of unlawful employment actions. Hollins, 760 A.2d at 578. 28
given reason was a pretext. However, Johnson has contributed no evidence that
the institutional need and frustration over her lack of leadership were not genuine.
Instead, she claims that the defendants were mistaken in their interpretations of her
actions because her delays in completing assignments were merely the result of her
need for further clarification before she could properly engage the tasks.
That claim is insufficient to forestall summary judgment. Taking all of
Johnson’s assertions as true and drawing all reasonable inferences in her favor, she
still has not established that the proffered reason was “a pretext for discrimination
either directly by [proving] that a discriminatory reason more likely motivated the
employer or indirectly by showing that the employer’s proffered explanation is
unworthy of credence.” Hollins, 760 A.2d at 573 (internal quotation marks
omitted).
Johnson has offered no direct evidence of racial discrimination. Therefore,
she must show that the reason proffered by the District is unworthy of credence by
demonstrating that it was not a genuine motivation. That is, she cannot merely
argue that the decision to terminate her was a poor business judgment, she must
show that the employer was not being candid when it asserted that her termination
was motivated by its non-discriminatory reason. Hollins, 760 A.2d at 573–74. 29
Because she must carry both the burden of production on the issue of pretext and
the ultimate burden of showing intentional discrimination at trial, if she cannot
point to evidence of this lack of candor, summary judgment is appropriate.
Johnson’s allegations do not demonstrate that OAG’s announced reason for
terminating her was pretextual. She claims that their interpretations of her actions
and inactions were mistaken, but presents no evidence that their assertions were not
made in good faith. Even if Rice, Chandler, Adams, and Nathan were all mistaken
in their assessments of Johnson’s motivations when she delayed preparing policy
documents, persisted in disputes over workload and ethics long after defendants
viewed them as resolved, and failed to take any initiative to ensure that the
reorganization would be successful, this would not show that their proffered reason
was a pretext, a falsehood generated for the purpose of masking their true reasons.
It would only demonstrate that their perspectives were misinformed.
Lastly, Johnson reincorporates the same arguments that she makes in
claiming that Adrianne Day was similarly situated to her. 14 She claims that her
14 Johnson also offers the names of three other possible comparators. However, she has not developed a record or presented arguments to show why any of the three should be considered a relevant comparator and we deem the issue waived. See McFarland, 935 A.2d at 351. 30
arguments regarding their similarities show disparate treatment and thus establish
pretext. However, while Day and Johnson were similarly situated in some ways,
their similarities do not lead to an inference of pretext. Appellant’s brief claims
that “Ms. Day engaged in actual insubordination, but was not terminated” and
alleges that Day sent inappropriate e-mails in 2006, “displayed inappropriate body
language” during a meeting in 2009, and had a generally negative relationship with
Rice. However, while a reasonable inference could be drawn that Day and
Johnson had similarly tense relationships with Rice, or were at least similarly
enough situated with regard to that kind of conduct, interpersonal conflict with
Rice is not the reason for termination that Johnson must expose as pretextual.
Although AG Nathan did comment that he was “troubled” by Johnson’s
“immature” and “inappropriate” interactions with Rice, he emphasized that “[her]
termination was proposed in response to [her] conduct in connection with the
September 2011 restructure.” The letter of termination details specific tasks
related to the restructuring “and [Johnson’s] continued efforts to resist these
assignments,” ultimately explaining that the reason for her termination was her
“fail[ure] to support the restructure by [her] actions or inactions in a circumstance
where [her] support was needed and reasonably expected.” 31
Day’s actions are not comparable to Johnson’s lack of support for the
reorganization of CSSD; indeed, as her transfer and the shifting of her duties
served as the catalyst of the reorganization, Day could hardly be as relevant a
comparator as the other section chiefs, who were also reacting to changing roles
and new duties. It is undisputed that the other section chiefs—who were also
African-American—were “meeting with their staff, doing the things that are
necessary to make the restructure a success,” and that Rice felt that she “needed the
same from [Johnson].” 15 Moreover, it is noteworthy that Day completed all
transition-related tasks promptly and to the satisfaction of the management team.
Johnson’s allegations about their similar duties, interpersonal conflicts, and job
15 “Where an employer has a strong record of equal opportunity employment, any inference of discrimination arising from the discrediting of the employer's explanation may be a weak one, and in some cases not strong enough to let a reasonable factfinder conclude that discrimination has occurred at all.” Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1290 (D.C. Cir. 1998). Further, “[a]n individual who is willing to hire and promote a person of a certain class is unlikely to fire them simply because they are a member of that class.” Waterhouse v. District of Columbia, 298 F.3d 989, 996 (D.C. Cir. 2002) (quoting Buhrmaster v. Overnite Transp. Co., 61 F.3d 461, 464 (6th Cir. 1995)). Here, there is abundant evidence of equal opportunity; Rice hired Johnson in the first instance, Rice and Adams are both African-American, and all of the other CSSD section chiefs were African-American at the time of Johnson’s termination. Accordingly, “there may be no legitimate jury question as to discrimination in a case in which a plaintiff has created only a weak issue of material fact as to whether the employer’s explanation is untrue, and there is abundant independent evidence in the record that no discrimination has occurred.” Aka, 156 F.3d at 1291. 32
titles do not support an inference that the employer’s proffered reason for
Johnson’s termination was a pretext for racial discrimination.
III. Conclusion
The DCWPA is not meant to be a “weapon in arguments over policy,”
Zirkle, 830 A.2d at 1259–60 (quoting Lachance, 174 F.3d at 1381), and Johnson’s
allegations do not rise above general disagreements with managerial decisions,
even if she claims that some of those decisions turned out to be unwise. Other
claims are unrelated to the larger agency mission or describe personal grievances;
most importantly, her claims about the DCCSES database and the restructuring of
CSSD are not true “disclosures” that implicate the kinds of government
misconduct the DCWPA is meant to combat. See generally D.C. Code § 1-615.51.
Appellant has failed as a matter of law to make out a prima facie case under the
DCWPA.
The DCHRA does not prohibit employers from terminating at-will
employees for reasons that the employee believes are misguided. Instead, the
DCHRA forbids terminating employees for particular reasons, such as their race.
See Hollins, 760 A.2d at 573–74 (“Even assuming arguendo that the investigations 33
were flawed, the reliability of the investigations and reports is irrelevant. The only
questions pertinent here are whether Fannie Mae believed, in good faith, that
Hollins had committed [] violations . . . and whether its decision to discharge
Hollins was based on that belief.”). Johnson’s allegations regarding pretext
amount to, at best, a claim that her employer terminated her because she was
undervalued and the District misjudged her actions. She has not provided the
necessary proof of racial discrimination.
The judgment of the Superior Court is
Affirmed.