Kolowski v. United States, 244 A.3d 1008

Background

Jason Kolowski, an at-will DFS employee and former MPD DNA lab manager, discovered duplicate firearm entries in MPD’s firearms database and reported the issue to DFS General Counsel Christine Funk in early 2015 (a protected disclosure).
Following an accreditation suspension of DFS’s DNA lab in April 2015, Dr. Roger Mitchell was appointed Interim Director and promoted Kolowski to Director of Special Operations to help outsource DNA casework and restore accreditation.
On May 4, 2015, Mitchell reported at an oversight hearing that DFS had 77 untested sexual assault kits; the correct number was 85. Mitchell says he fired Kolowski (May 18) for incompetence based on the misreporting. Kolowski insists he corrected the count after May 4 and says the real motive was retaliation for his May 11 disclosure to new GC Robert Hildum about the MPD firearms database.
Kolowski sued under the D.C. Whistleblower Protection Act alleging his termination was retaliatory. The trial court granted summary judgment for the District, concluding there was no triable issue that Mitchell knew of Kolowski’s protected disclosure (employer awareness is required).
Kolowski also challenged the trial court’s denial of a belated request to extend discovery to take a Rule 30(b)(6) deposition; the court found the request untimely and that Kolowski had not shown the deposition would cure the central evidentiary deficit (Mitchell’s awareness).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Mitchell was aware of Kolowski’s protected disclosure (WPA contributing-factor/awareness element)	Kolowski argued circumstantial evidence (temporal proximity, Mitchell’s expectation that leadership report issues, and alleged pretext) permits a reasonable inference Mitchell knew of the disclosure	District argued Mitchell credibly attested he was unaware of the disclosure and Kolowski offered no independent evidence to rebut that testimony	Court held no triable issue: plaintiff failed to produce evidence from which a reasonable juror could infer Mitchell knew of the protected disclosure; summary judgment affirmed
Whether temporal proximity plus other circumstantial evidence sufficed to create a jury question	Temporal proximity (one week) and other circumstantial facts are sufficient to infer awareness	Temporal proximity alone is insufficient; plaintiff must offer additional, probative evidence of awareness	Court held proximity alone, without independent evidence, does not defeat summary judgment
Whether credibility disputes about Mitchell’s testimony preclude summary judgment	Kolowski contended Mitchell was lying and credibility is for the jury	District argued plaintiff relied only on impeaching testimony without independent facts to support an inference of deceit	Court held impeachment-only challenges are insufficient; plaintiff needed independent evidence from which a factfinder could infer defendants lied
Whether the trial court abused its discretion by denying extension to take a Rule 30(b)(6) deposition	Kolowski said denial prevented discovery that could have shown Mitchell’s awareness and so prejudiced his opposition to summary judgment	District and court noted the request was untimely, objections to the notice were unresolved, Kolowski did not use other available discovery tools, and he offered no justification for delay	Court held denial was not an abuse of discretion; plaintiff failed to preserve Rule 56(d) arguments and failed to show the deposition would cure the evidentiary gap

Key Cases Cited

McFarland v. George Washington Univ., 935 A.2d 337 (D.C. 2007) (employer awareness of protected activity is essential to a retaliation prima facie case)
Crawford v. District of Columbia, 891 A.2d 216 (D.C. 2006) (describing WPA burden-shifting framework)
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (U.S. 1986) (summary judgment standard)
Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268 (U.S. 2001) (temporal proximity alone is not necessarily dispositive)
Woodruff v. Peters, 482 F.3d 521 (D.C. Cir. 2007) (positive evidence beyond proximity required to rebut employer’s explanation)
Perkins v. District of Columbia, 146 A.3d 80 (D.C. 2016) (challenge to witness credibility cannot alone defeat summary judgment absent independent supporting evidence)
Bradshaw v. District of Columbia, 43 A.3d 318 (D.C. 2012) (courts will not deny summary judgment based solely on impugned honesty without independent facts)
Briscoe v. District of Columbia, 62 A.3d 1275 (D.C. 2013) (Rule 56(d) requirements for preserving discovery-based opposition to summary judgment)