Bowyer v. District of Columbia, 793 F.3d 49

Background

Bowyer and Pennington were Fire Investigations Unit investigators who complained in 2007–2008 about alleged race-based promotions and prosecutorial mishandling of two cases (Bridgewater and juvenile K.A.).
They allege they reported improprieties to federal and District prosecutors, filed internal complaints with the Department in June 2008, and later filed EEOC complaints in summer 2008.
In November 2007 they claim supervisors removed privileges and moved them to an office with K-9 dogs; in August 2008 D.C. prosecutors told Fire Chief Rubin they would no longer use or call the investigators as witnesses.
On August 21, 2008 Rubin reassigned them from Fire Investigations to the less desirable Community Services Unit; the EEOC complaints were filed after that reassignment and even referenced it.
The investigators sued under the D.C. Whistleblower Protection Act (DCWPA). The district court granted summary judgment for the District; the appellate court reviews de novo.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether disclosures to prosecutors about Bridgewater/K.A. were protected disclosures under DCWPA	Bowyer/Pennington say they told prosecutors about evidence problems and that those disclosures were protected and caused retaliation	District argued plaintiffs offered only self-serving, uncorroborated testimony and failed to show protected disclosures caused the reassignment	Court declined to reach new Bridgewater causal theory on appeal (not raised below) and agreed district court permissibly found evidence insufficient at summary judgment
Whether EEOC/Department complaints alleging racial discrimination contributed to reassignment	Plaintiffs argue their discrimination complaints prompted retaliation	District points to timing and to a contemporaneous legitimate reason: prosecutors' refusal to work with them led to reassignment	Court held EEOC complaints were filed after reassignment (so irrelevant); Department complaints (filed June 2008) were considered but did not create a genuine dispute because the undisputed reason for reassignment was prosecutors' refusal to work with them
Whether the District offered a legitimate, independent reason and whether plaintiffs rebutted it (pretext)	Plaintiffs implied complaints and testimony caused reassignment and suggested disciplinary vindication shows pretext	District showed by clear and convincing evidence that OAG's refusal to use them was the motivating, legitimate reason for reassignment	Court held District met its burden and plaintiffs failed to proffer admissible evidence showing pretext; summary judgment affirmed
Procedural waiver of new causal theory on appeal	Plaintiffs raise a new causal theory tying Bridgewater disclosures to the 2008 reassignment	District contends issue was not raised below so cannot be considered on appeal	Court declined to consider the new argument because it was not presented to the district court

Key Cases Cited

Crawford v. District of Columbia, 891 A.2d 216 (D.C. 2006) (defines DCWPA protected-disclosure elements)
Johnson v. District of Columbia, 935 A.2d 1113 (D.C. 2007) (burden-shifting and pretext standard under DCWPA)
McCormick v. District of Columbia, 752 F.3d 980 (D.C. Cir. 2014) (standard for affirming on alternate theory at summary judgment)
Cones v. Shalala, 199 F.3d 512 (D.C. Cir. 2000) (temporal proximity may suggest causation)
Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970) (summary judgment facts viewed in light most favorable to nonmoving party)