GODWIN UKWUANI, APPELLANT, v. DISTRICT OF COLUMBIA, MELINDA BOLLING, and LYNN UNDERWOOD, APPELLEES.
No. 17-CV-989
DISTRICT OF COLUMBIA COURT OF APPEALS
November 19, 2020
Argued October 8, 2019
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.
Appeal from the Superior Court of the District of Columbia (CAB-6886-15)
(Hon. Jennifer A. DiToro, Trial Judge)
David A. Branch for appellant.
Sonya L. Lebsack, 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 appellees.
Before GLICKMAN, BECKWITH, and MCLEESE, Associate Judges.
On appeal, appellant contends that the court erred in disposing of his claims on summary judgment. He presents three overarching claims for our review. First, appellant claims, the trial court erred by ignoring evidence of Bolling and Underwood‘s bias and the allegedly pretextual nature of the reason given for his termination, which was sufficient to allow his intentional discrimination and hostile work environment claims to proceed. Second, appellant claims, the court erroneously rejected his HRA retaliation claims for failure to show that he engaged in protected activity and without taking into account evidence that Bolling and Underwood were aware of complaints he had made regarding racial and national origin discrimination. Third, appellant contends that the court erred in similarly concluding that he failed to establish a prima facie case of retaliation under the WPA.
I.
A. Appellant‘s Position Within DCRA
Appellant began working at DCRA in 1999 as a general mechanical engineer in its Permit Operations Division (POD). The POD issues permits for all District building constructions and modifications. The title of “engineer” in appellant‘s position at the POD may be misleading. Although appellant had a master‘s degree in mechanical engineering, the position description did not require an engineering license (which appellant did not have) and the job mainly involved reviewing building permit applications submitted by architects and professional engineers to ensure their compliance with the requirements of the District‘s construction codes. However, the position description also stated that reviewers are expected to “exercise[] independent judgment on the acceptability of plans,” indicating that the job might involve more than just confirming code compliance.
Appellant generally received positive performance reviews during his tenure with the POD, and in 2014 he was promoted to the managerial position of Supervisory Mechanical Engineer in POD‘s Mechanical/Plumbing Section. This was an at-will position, meaning that the employee‘s termination was neither grievable nor appealable.
In January 2015, appellee Bolling (who is African American) was named the Director of DCRA. Previously she had been the Department‘s General Counsel. The following month, appellee Underwood (who is white) became the Deputy Chief Building Official of DCRA, a position with oversight responsibility for the POD, including appellant.
B. Appellant‘s Disagreements with DCRA Management Regarding Qualifications for Plan Reviewers
According to Bolling, upon her elevation to Director she was charged by the Mayor with improving the speed and efficiency of the POD by directing permit reviewers, like appellant, to limit their review to whether plans complied with the District‘s building codes and refrain from otherwise evaluating or commenting on plan designs.3 In March 2015, the POD recruited for a Chief Structural Engineer. Cognizant of the Mayor‘s emphasis that POD should focus on code review, Bolling encouraged Gary Englebert, a white man, to apply for the position. Bolling had worked with Englebert before and, as she testified in her deposition, she “knew he had done code review in other jurisdictions.” Englebert‘s qualifications also included expertise in the interpretation of the District‘s building code and numerous International Code Council (ICC) certifications.4 Bolling ultimately selected Englebert for the position over Benjamin Johnson, an African American
Appellant disagreed with Bolling‘s decision. Although he was not informed of Englebert and Johnson‘s rankings in the application process, he believed Johnson was more qualified to be made Chief Structural Engineer because Johnson also knew the District‘s building code, appellant thought highly of his work, and it was appellant‘s view that the position should be filled by an applicant with an engineering degree. He orally complained to Underwood about the decision and said he felt that Johnson was more qualified and had been treated unfairly because he was African American. He added that other plan reviewers opposed Englebert‘s selection as well. Bolling was aware of appellant‘s dissatisfaction with her hiring decision and his belief that it was racially motivated.
Appellant alleges that after Englebert was hired, Underwood discontinued his regular meetings with the other POD managers, all of whom were African American or Asian American, and spoke more frequently with Englebert.
This was not the first time appellant expressed opposition to the Department‘s changing views of the plan reviewer role and qualifications. Two years earlier, in 2013, the DCRA‘s Chief Building Official, Rabbiah Sabbakhan, proposed to hire additional plan reviewers to fill a new position in the POD at the GS-13 level that would be called “inspector” rather than “engineer.” The minimum qualifications for this “inspector” position included several ICC certifications and an associate‘s degree in engineering, architecture, or construction technology.
A group of foreign-born POD GS-12 plan reviewers with engineering degrees, including appellant, met with Sabbakhan and Bolling (who was then DCRA‘s General Counsel) to voice objections to the “inspector” position and their status in relation to it. At that meeting, they requested a GS level increase on the grounds that their pay was not comparable to that of engineers in other District agencies and that the “inspector” position offered a higher salary but required a less advanced degree. The group wrote a follow-up letter asserting that the proposed “inspector” position did not require the necessary qualifications for the performance of plan reviewing tasks, and that the disparity in pay between their “engineer” positions and the new position was unfair given that they had bachelor‘s and master‘s degrees. The objectors did not mention their race or national origin in the meeting or in the letter; there is no evidence in the record that appellant or any other GS-12 engineer complained to Sabbakhan or Bolling that the anticipated pay differential or change in their status or professional responsibilities was meant to discriminate against them, or would have the effect of doing so, on a racial or national origin (or other invidious) basis. One of the objecting plan reviewers, Tesfaye Habte, was deposed and testified that he “d[id]n‘t remember saying . . . [or] participating in . . . a complaint about Caucasian and non-Caucasian . . . as such, but we‘ve complained about
Sabbakhan and Bolling were not persuaded by the objections. They were of the view that the POD plan reviewer position could not be compared with engineering positions in other departments because plan reviewers did not do engineering work; rather, they focused narrowly on whether construction and building plans met code requirements. The new “inspector” position was approved with the proposed educational requirements.6
C. Appellant‘s Relationship with Underwood
Underwood was appellant‘s direct supervisor from the time Underwood joined the DCRA in February 2015 until appellant was terminated in June 2015. By all accounts, they did not have a positive working relationship. Appellant contends the friction began early in Underwood‘s tenure, when Underwood “mocked” the experience of the GS-12 plan reviewers during a meeting with appellant, by remarking that he could “pose five code questions to them and bet they could not answer correctly.” Appellant believed the remark was indicative of Underwood‘s general contempt for the plan reviewers he managed, all of whom were, like appellant, foreign-born or non-white employees. In depositions, other plan reviewers recalled Underwood as a supervisor who often lost his temper, yelled at employees, and was generally demeaning or “nasty.” None of them attributed Underwood‘s unpleasant attitude to racial or national origin bias or prejudice, however.
Meanwhile, Underwood criticized appellant for not performing his managerial duties; according to Underwood, appellant “simply continued to do plan review,” allowed plans to get behind, and failed to correct behavior and erroneous building code calls by some plan examiners. Underwood communicated those criticisms to appellant by, as he put it, “verbal disciplining.” Underwood also formally reprimanded appellant in a so-called Letter of Counsel on April 13, 2015, in connection with an incident in which appellant sought to review certain employment applications that Underwood had rejected because the applicants did not have ICC certifications or plan review experience. In the letter, Underwood characterized appellant‘s conduct as an act of “insubordination.” The letter further criticized appellant‘s performance as “less than managerial,” citing his vocal opposition to Englebert‘s hiring and his siding with plan reviewers’ dissatisfaction and complaints on various matters. Underwood recommended that appellant “extricate [him]self from fellow workers.” Appellant refused to sign the Letter of Counsel.
D. Appellant‘s Disagreements with DCRA Management Regarding Building Permit Approvals and His Termination
Appellant also disagreed with his superiors over their policy of limiting building permit review to code compliance and their related encouragement of expeditious approval of building plans subject to the applicant‘s subsequent satisfaction of conditions that would need to be met instead of requiring rounds of corrections to be made to the plans before the POD would sign off on them. Appellant expressed his dissenting views on these matters in connection with at least three building permit
On January 26, 2015, Sabbakhan asked appellant to “note any conditions of substance” and issue the permit for a project at George Washington University that afternoon. This urgency was in response to the applicant‘s request, made to Bolling, that the approval be expedited. Appellant thought the permit required further discussion with the applicant and that it should have been revised, but he issued the permit as Sabbakhan directed him to do, with the list of items he thought the applicant would need to address. Appellant then sent an email to Matt Orlins, a DCRA attorney, in which he said he was “somehow uncomfortable with the instruction . . . to approve [the] application today.” The email did not explain why appellant was “uncomfortable” or the substance of the revisions he deemed necessary; appellant did not claim it was dangerous to issue the permit. Orlins responded that he was “not involved” in the review and that appellant should work with his supervisor. There is no evidence in the record that either Sabbakhan or Bolling was informed of appellant‘s email or that appellant pursued the matter further.
On February 20, 2015, Sabbakhan asked appellant for an update on the status of a pending permit application for a project called “Union Kitchen.” It appears the Director had asked Sabbakhan for a “specific reason” why the permit had been delayed, and Sabbakhan had told her it would be resolved that day. Appellant responded that he wanted to check the direction of the building‘s exhaust system in the project plans, and if that information was not indicated, he would ask the applicant to correct the application. Sabbakhan rejected that approach and told appellant the issue was “not that complicated” and the permit should be approved forthwith, with any remaining issues listed as conditions to be enforced by way of a later inspection. Appellant wrote back with a general objection to the conditional approval practice, in which he expressed his views that “if the conditions were not met during construction, it would be too late and costly by the time our inspection gets to notice,” and that the practice made code enforcement more difficult.
Appellant again opposed the approval of a permit in May 2015. Englebert, who had assumed the position of Chief Structural Engineer by this time, had asked appellant to review a small residential construction permit for applicants described (by appellant) as “a white couple.” Appellant told Englebert that the application was not compliant because it specified an unrealistically low construction cost of only $100. In response, the applicants (who apparently were on the scene and waiting for the permit to be issued) crossed out the $100 and wrote in $1,000, but appellant was not satisfied and refused to approve the permit because the new figure was, in his view, “just guesswork.” In addition, appellant believed the project design was not compliant with zoning regulations. Appellant‘s actions were reported to Underwood, who allegedly yelled at him for his refusal to approve the permit.
The final incident unfolded in June, when appellant reviewed plans to renovate a basement for use as a hair salon or barber shop. On June 10, appellant had a lengthy and apparently contentious meeting with the architect for the plan, Eric Peterson. During that meeting, appellant insisted that the construction was a change to the building‘s use and required a separate HVAC system that would flow to the basement. Peterson disagreed with the need for that change. Appellant told him
The next morning, on June 11, 2015, Underwood e-mailed a request to the human resources division to take disciplinary action against appellant. He proposed a suspension and potentially termination. That same day, appellant emailed his version of the argument to Sabbakhan and Bolling, insisting that he had been right to question Peterson‘s plans and complaining that Underwood had verbally abused him in front of colleagues.
On June 12th, Underwood received a heated letter from Peterson complaining about appellant‘s handling of his application. Peterson wrote that he was “seriously inconvenienced” by the incident on June 10th; he felt he had lost a day of work to appellant‘s need to “prove that he was right” and have his “ego” validated by a permit applicant. Underwood discussed the incident with Bolling, and he provided her with a copy of Peterson‘s letter.
Bolling terminated appellant on June 24, 2015. In her deposition, she testified that she did so because the letter “had the ring of truth,” and it demonstrated appellant‘s “poor customer service” when his job was to “mak[e] the process better.” Though Bolling said Peterson‘s letter was the catalyst for appellant‘s termination, she also stated that her decision was informed by reports from Underwood and Sabbakhan that appellant had been slow to adapt to his role as a manager of plan reviewers and resistant to the policy of focusing on code compliance without “redesign[ing] plans submitted by applicants.” She maintained, however, that she had not considered termination an appropriate action against appellant until after she had read Peterson‘s letter.7
II.
We review the trial court‘s grant of appellees’ motion for summary judgment de novo, undertaking an “independent review of the record” and evaluating it in the light most favorable to appellant.8 If we conclude there is any record evidence, after discovery, on which a jury could properly reach a verdict for appellant, we must reverse the grant of summary judgment.9 But while appellant is entitled to “the benefit of every reasonable inference from the evidence,” he is not entitled to “inferences based on guess or speculation.”10 Allegations that are unsupported
A. HRA – Discriminatory Termination Claim
We start by addressing appellant‘s claim that his termination was the result of, or motivated by, discrimination on the basis of his race or national origin. The HRA prohibits employers from taking an adverse action against their employees “wholly or partially for a discriminatory reason based upon . . . race [or] . . . national origin.”12 At the summary judgment stage, we typically evaluate an employee‘s claim of such intentional discrimination using the three-part burden-shifting framework set forth in McDonnell Douglas Corp. v. Green.13 Under that framework, the employee has the initial burden to state a prima facie claim, which raises a rebuttable inference of intentional discrimination that the employer may counter by articulating a legitimate, nondiscriminatory rationale for the adverse action.14 If the employer advances such a rationale, the inference of discrimination “drops from the case,” leaving the employee with the task of showing that the nondiscriminatory reason provided by the employer is false and that the employer‘s action actually was motivated, in whole or in part, by a discriminatory reason.15 Thus, where an employer has produced evidence of a nondiscriminatory reason for its actions, “we need not pause to analyze whether [appellant] made out a prima facie case of [discrimination] in opposing summary judgment.”16
Appellees produced evidence that appellant was terminated for a legitimate, nondiscriminatory reason—namely, his conduct in the incident that generated the Peterson letter. Therefore, the question on appeal now is whether a jury could infer that discrimination motivated appellant‘s termination, based on “the combination of (1) [his] prima facie case; (2) any evidence [he] presents to attack [appellees‘] proffered explanation for [their] actions; and (3) any further evidence of discrimination[.]”17
The trial court found that appellant presented evidence on which a jury could find that the Peterson letter was not the sole reason for terminating him, in that Bolling also cited her conversations with Underwood and Sabbakhan regarding appellant‘s managerial difficulties and resistance to expediting code review. Nonetheless, the court awarded summary judgment to appellees. Appellant claims this ruling was erroneous in two respects. First, he argues that the trial court‘s findings regarding an alternative explanation for his termination demonstrate that appellees’ stated rationale was pretextual and that this showing of “pretext” was enough to permit a jury
First, appellant misapprehends the significance of the court‘s assessment that a jury could find that Bolling had additional reasons for terminating him besides the Peterson letter. A showing by a plaintiff of a prima facie case and a triable issue as to the truth of the employer‘s proffered justification is not always enough to overcome a motion for summary judgment. The Supreme Court has explained that “an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer‘s decision, or if the plaintiff created only a weak issue of fact as to whether the employer‘s reason was untrue and there was abundant and uncontroverted evidence that no discrimination had occurred.”18 This is such a case. What the trial court perceived (and we conclude the record confirms) is simply that a jury could find additional nondiscriminatory reasons supporting appellant‘s termination; there is a fatal lack of evidence from which a jury fairly could infer that those were not, individually or in combination, the true reasons and that appellant‘s termination really was motivated or informed by discriminatory animus.
Preliminarily, we think it most doubtful that a jury reasonably could disbelieve Bolling‘s testimony that she terminated appellant on account of the Peterson incident merely because she acknowledged the other management concerns with appellant reported by Underwood and Sabbakhan. Bolling was definite and unwavering in her testimony that she was motivated by what she called Peterson‘s “extremely detailed” account of his frustrating and unpleasant experience with appellant, and that she “counted all the problems that [Peterson] had encountered as a customer dealing with someone that was supposed to [be] making the process better.” The record also indicates that Bolling did not consider firing appellant before she received the Peterson letter, and that she had also terminated a white employee for similar customer service complaints. But even if we assume that Bolling was motivated at least in part by Underwood‘s and Sabbakhan‘s concerns with appellant‘s performance, those concerns were
themselves legitimate, non-discriminatory rationales for his termination that do not support a finding of discrimination. While appellant disputes the merits of their criticisms of him and asserts that his job continued to necessitate design review, his unsupported opinion on these matters is insufficient to raise a disputed issue of fact as to whether appellees’ justifications for his termination were false.19 On this record, there is no
Furthermore, appellant also has not proffered other evidence from which a jury fairly could infer that the real motivations behind his termination included racial or national origin discrimination. Nothing in the record suggests that Bolling displayed or had a discriminatory animus toward appellant or any other non-white or foreign-born employee.21 Appellant argues that even if Bolling herself was not biased, her decision to terminate him was infected by the bias of a subordinate, Underwood, on whose reports and recommendations she allegedly relied. Appellant points to three facts for which there is record support that he contends create a triable issue on Underwood‘s motivations. In our view, however, even assuming arguendo that appellant could show Underwood impacted the decision by Bolling to terminate him (as he must in order to prove he was fired because of a subordinate‘s bias),22 the record demonstrates only a contentious and unprofessional relationship between appellant and Underwood. It does not support a finding that discriminatory animus underlaid the tension between them.
First, appellant argues that Underwood‘s disrespectful statements about the GS-12 plan reviewers, such as his disparaging remark that they could not answer questions about the building code correctly, is circumstantial evidence of discrimination. We are not persuaded. The evidence may support a picture of Underwood as an ill-tempered and offensive manager who was dissatisfied and at odds with the employees he supervised. That is not enough to support a plausible inference that Underwood was motivated by discriminatory animus. Offensive and insulting remarks need not explicitly invoke a racial (or other invidious) classification to constitute evidence of discrimination—“[t]he speaker‘s meaning may depend on various factors including context, inflection, tone of voice, local custom, and historical usage”23—but the record in this case evinces no such contextual or historical link between Underwood‘s criticisms of his staff and his staff‘s race or national origin. Underwood‘s comments may have been rude or worse, but they related to job performance and there is no evidence showing that Underwood meant them as a racially or ethnically charged insult or that the comments were motivated by prejudice.
Third, appellant cites evidence that, after Englebert was hired, Underwood stopped having regular meetings with non-white POD managers and instead primarily communicated with them through Englebert. We see little significance in this isolated fact. Underwood‘s utilization of Englebert as an intermediary may have been entirely benign and understandable, since Englebert was vested with supervisory authority over at least some other POD employees (apparently including appellant). But even if Underwood‘s practice was some (slight) evidence of cronyism or favoritism, it does not show that Underwood had an unlawful motivation for ending the meetings or seeking to undermine appellant because of his race or national origin.25
While we generally disfavor the resolution of intentional discrimination claims on summary judgment “since they almost always involve issues concerning the employer‘s (or supervisor‘s) motive or intent”26 (generally a question “ill-suited for determination as a matter of law” and better left for the fact finder27), this is a case in which summary judgment is appropriate, because appellant has failed to present even circumstantial evidence of discrimination.
B. HRA – Hostile Work Environment
To prevail on a hostile work environment claim under the HRA, a plaintiff must establish “(1) that he is a member of a protected class, (2) that he has been subject to unwelcome harassment, (3) that the harassment was based on membership in a protected class, and (4) that the harassment is severe and pervasive enough to affect a term, condition, or privilege of employment.”28 The trial court correctly concluded that appellant failed to submit probative evidence of at least the third prong—as discussed above, the record on summary judgment does not demonstrate that Underwood‘s quarrelsome relationship with appellant was based
C. HRA – Retaliation
The HRA prohibits an employer from retaliating against an employee “for opposing an employment practice that is prohibited by the Act.”29 To make out a prima facie case of retaliation, appellant must establish (1) that he engaged in a protected activity; (2) that appellees took an adverse action against him; and (3) that a causal relationship existed between that adverse action and the protected activity.30
“Whether actions by an employee constitute protected activity is a question of law.”31 For an activity to be “protected” under the Act, (1) it must be one in which an employee expresses a “reasonable good faith belief”32 that their employer violated the HRA; and (2) the employer must be aware of the activity; that is, the employee must “alert the employer that [they are] lodging a complaint about allegedly discriminatory conduct.”33
However, because appellees produced evidence that appellant was terminated for a legitimate, non-discriminatory reason, we need not fixate on whether appellant made out a prima facie case of retaliation.34 Instead, just as we did when analyzing appellant‘s discrimination claim, “we may proceed to answer the ultimate question“: whether a jury could find that retaliation motivated appellant‘s termination, based on a combination of appellant‘s prima facie case, evidence rebutting appellees’ proffered reasons for their actions, and any further evidence of retaliation.35
On appeal, appellant maintains that the trial court overlooked three instances in which he complained about racial discrimination at DCRA and thus engaged in a protected activity: (1) his 2013 complaint regarding the creation of the GS-13 “inspector” position; (2) his efforts to present to management the concerns of the “foreign-born engineers” in the POD; and (3) his complaint that the hiring of Gary Englebert over Benjamin Johnson was racially motivated.36
(continued...)
a claim raised by an appellant for the first time at oral argument. See Jung v. Jung, 844 A.2d 1099, 1112 n.9 (D.C. 2004). At any rate, the email raises no complaint of practices prohibited by the HRA, nor does it connect Underwood‘s treatment of appellant to his race or national origin. It could not have alerted appellees to any unlawfully discriminatory conduct, and hence did not constitute protected activity under the HRA. See Green, 652 A.2d at 46.
These complaints certainly raised an objection to the disparity in pay created between their position and the GS-13 position that required no advanced degree, but “there is no sign” that appellant or the other GS-12 reviewers connected “the inequality to any difference” between their race or national origin and those who they believed would be considered for the GS-13 position.37 Even if appellant believed that the new position discriminated against the GS-12 reviewers because of race or national origin, his actual complaint to his employer did not reveal any such belief; thus, the 2013 complaint was not a protected activity under the HRA and it cannot support appellant‘s retaliation claim.
Second, appellant‘s argument that Underwood advocated for his termination so that appellant could no longer represent the interests of other foreign-born plan reviewers fails for the same reason—his “advocacy” was on behalf of employees who happened to be members of a protected class, but he did not link his advocacy to their national origin. Objections to agency “policies, or mistreatment in general, without connecting it to membership in a protected class . . . are outside the purview of the HRA.”38
The missing connection is not supplied by an interrogatory answer cited by appellant, in which appellees concede “[u]pon information and belief” that appellant verbally complained “that African-American employees including [Mr.] Johnson were being treated unfairly” and that Director Bolling was “aware that he had complained of discrimination within DCRA.” Although interrogatory answers
The phrase “upon information and belief” raises sufficiency concerns, because it is nothing more than a bare profession of belief despite a lack of knowledge as to the truth of the belief. It forces us to ask what “information” the “belief” is based upon. The answer does not cite any specific documentation or other support, but appellant references two instances that purportedly corroborate it: appellant‘s complaint regarding the hiring of Mr. Englebert over Mr. Johnson, and appellant‘s “voicing [of] staff mistreatment.” While the former is a claim of racial discrimination, the latter is not; the record only shows that appellant “expressed outrage with how [he] perceive[d] staff have been mistreated,” not that they were being mistreated because of their race or national origin. Consequently, we conclude that even if the interrogatory answer is admissible, it is insufficient to establish that appellant complained about racial discrimination against anyone other than Mr. Johnson.
Lastly, appellant cites his complaint about the selection of Englebert over Johnson for the Chief Structural Engineer position as a protected activity.44 It is undisputed that appellant told Underwood he believed Johnson was more qualified for
The “reasonable good faith belief” test is not a high bar. It asks only whether the employee reasonably and sincerely believed when they made the report that unlawful discrimination occurred.45 If so, the employee is protected from retaliation even if the belief was mistaken and the employer‘s conduct was lawful, for the HRA‘s goal of rooting out workplace discrimination “relies heavily on the initiative of aggrieved employees, whose efforts in the public interest would be severely chilled if they bore the risk of [retaliation] whenever they were unable to establish . . . the merits of their claims.”46 Generally speaking, a plausible complaint that a more qualified member of a racial minority was passed over for a position in favor of a less qualified white applicant does suggest the existence of a reasonable and good faith belief that discriminatory hiring took place, even if the complainant turns out to be wrong about the relative merits of the applicants,47 and will be sufficient to trigger the anti-retaliatory protections of the HRA.
But the context of this case distinguishes it. For present purposes, we assume that appellant made his charge of racial discrimination in good faith. Nonetheless, appellant did not have, and has never articulated, an objectively reasonable basis for accusing DCRA of such discrimination in selecting Englebert over Johnson to head the POD. He failed to show a material dispute on this issue. It is undisputed that Director Bolling made the hiring decision after a review panel found both applicants to be highly qualified and eligible to be selected by her in light of their high review scores (96 for Englebert and 98 for Johnson). It is undisputed that she selected Englebert because of his superior code review qualifications, which was the area where supervision of the POD was deemed most needed. Appellant has pointed to no evidence that the review panel‘s criteria were discriminatory, or applied discriminatorily in this instance, or that Bolling‘s stated reason for picking Englebert was not her real reason.
Appellant‘s longstanding disagreement on the merits with DCRA‘s emphasis on code review over engineering skills in selecting a head of the POD did not provide a reasonable basis for his charge of racial discrimination. The record shows that the determination to prioritize code review skills and deemphasize engineering skills in this area was a legitimate and non-discriminatory
Moreover, appellant did not have (and still does not have) a sound basis to assert that Johnson was materially more qualified than Englebert. Having made no inquiry into the actual hiring process, appellant was unaware how the two applicants had been evaluated or how they scored. Their virtually identical review scores would seem to imply, if anything, that they were equally qualified to fill the position. Certainly, appellant has failed to show that the two-point difference was significant, or that it would have made his belief in discrimination any more reasonable had he known of it.49 And the record indicates that both candidates had long experience, the big difference being that Englebert‘s experience was focused on code review, which is what the DCRA deemed most important. At his deposition, appellant himself conceded that Englebert had acquired over thirty ICC certifications, while he did not know whether Johnson had obtained any. There appears to be no evidence in the record that Johnson in fact had acquired any ICC certification or other accreditations testifying to his code review expertise.
In sum, an accusation of racism is a very serious charge. For it to be objectively reasonable it is not enough that it is leveled in good faith. Such an accusation cannot be called objectively reasonable when, as here, the accuser (1) knows that the challenged decision has a genuine and legitimate non-discriminatory rationale, (2) beyond that, has made no reasonable inquiry into the merits of the decision or the process by which it was made, and (3) has no basis for accusing the decision makers of any discriminatory animus or bias. We
D. Whistleblower Protection Act
The WPA protects District employees from “retaliation or reprisal” when they, in the public interest, “report [government] waste, fraud, abuse of authority, violations of law, or threats to public health or safety.”50 In order to state a prima facie WPA claim, a plaintiff must show (1) that they made a disclosure protected by the Act; (2) that a supervisor “took or threatened to take a prohibited personnel action” or otherwise retaliated against them; and (3) that the protected disclosure “was a contributing factor to the retaliation or prohibited personnel action” (i.e. the protected disclosure and the prohibited personnel action are causally connected).51
A “protected disclosure” is defined to include (as pertinent here) “any disclosure of information . . . to any person by an employee . . . that the employee reasonably believes evidences,” among other things, “gross mismanagement,” a “violation of federal, state, or local law, rule, or regulation,” or a “substantial and specific danger to the public health and safety.”52 The employee must hold such a belief at the time the whistle is blown, and the belief must be both sincere and objectively reasonable.53 Appellant claims he made protected disclosures that supported his WPA retaliation claim by (1) objecting to or refusing to approve the permit applications described above by GWU, Union Kitchen, Mr. Peterson, and a “white couple;” (2) complaining that Englebert was hired unlawfully; and (3) complaining about the GS-13 “inspector” position.
In granting summary judgment to appellees, the trial court concluded that appellant had failed to proffer sufficient evidence from which a jury could find that he stated a prima facie case under the WPA. Specifically, the court ruled that (1) appellant did not make protected disclosures when he objected to three of the permit approvals and charged that Englebert had been hired unlawfully; and (2) appellant had not established that either his 2013 complaint regarding the GS-13 “inspector” position or his January 2015 complaint concerning the GWU permit (assuming they were protected disclosures) was linked to a retaliatory or adverse personnel action. Appellant argues that all those rulings were incorrect as a matter of law, and that his WPA claim therefore should proceed to trial. For the following reasons, we are not persuaded to reverse the trial court‘s judgment in favor of appellees on this claim.
1. Appellant‘s Alleged Protected Disclosures
Appellant argues that his objections to approving the plans submitted by Peterson, Union Kitchen, and the “white couple” were protected disclosures that raised issues of gross mismanagement, “violations of D.C. rules,” and a substantial and specific danger to public safety. He maintains
We assess the reasonableness of appellant‘s belief under the “disinterested observer test,” which asks whether “a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee reasonably [could] conclude that the actions of the government evidence illegality?”54 This analysis does not “hinge[] upon whether the [action] was ultimately determined to be illegal,” but it does require that the employee‘s belief be objectively reasonable and that the employee has not ignored essential facts, including those “which detract[] from a ‘reasonable belief.‘”55 “In other words, the fact finder must consider whether the employee reasonably should have been aware of information that would have defeated his inference of official misconduct.”56
While appellant frames his complaints regarding the permits as sounding an alarm about the risks of the agency‘s focus on code compliance review rather than design evaluation, the record does not support a finding that appellant had a “reasonable and genuine contemporaneous belief” that the approvals in question posed real safety concerns to the District or meaningfully impeded POD‘s ability to regulate building construction and modification.57 He conceded to his supervisors, for example, that his “further assessment determined” Peterson‘s basement design to be “adequate,” belying his contention on appeal that the design, or the process by which it was approved, was unsafe.58 And his complaints regarding the Union Kitchen permit and the “white couple‘s” residential construction permit merely raised vague concerns that conditional approvals would prove “costly” (to whom, it is unclear) to correct and that “guesswork” in a private individual‘s own construction costs would somehow cheat the government.59
Appellant opposed an agency policy that favored performing an expeditious code review, noting issues of substance, and approving the permits conditioned on making the code corrections
Appellant further argues that he presented evidence sufficient to establish that when he complained to Underwood about the Englebert hiring, he reasonably believed the hiring decision was racially motivated or an act of preferential treatment and a violation of District law. Our reasons for rejecting this contention overlap with our reasons for rejecting his similar HRA retaliation claim. Appellant‘s claims of racial discrimination and preferential treatment in the Englebert hiring do not pass the disinterested observer test, because the objective merits of Englebert‘s hiring were either known or “readily ascertainable” to appellant. As previously discussed, at the time of his selection, appellant knew that the DCRA was moving in a direction that privileged Englebert‘s code expertise and background. Appellant‘s assertion that Johnson was clearly more qualified was out of touch with a disinterested observer‘s view as to whom the agency reasonably and fairly could hire.
2. “Disclosures” Regarding the GS-13 “Inspector” Position and the GWU Permit Approval
Appellant characterizes as protected disclosures his communications with Bolling and Sabbakhan in which he opposed the creation of the new GS-13 “inspector” position, and his email to DCRA attorney Matt Orlins stating that the GWU permit made him “somehow uncomfortable.” The trial court assumed arguendo that these complaints were protected disclosures, but concluded that appellant had failed to show that they contributed to any prohibited personnel action taken against him. While we doubt a jury could find either was a protected disclosure,62 we affirm the award of summary judgment on the grounds on which the trial court relied.
The two-year lapse between appellant‘s complaints regarding the creation of the GS-13 position and his termination is fatal to his argument that those events were linked,63 and while the record shows that Underwood was made aware of the 2013 complaint by April 27, 2015, there is no
As for appellant‘s email about the GWU permit, the trial court correctly concluded that there was no causal connection between it and any prohibited personnel action, because there is no evidence that appellees were aware of the disclosure.64 Appellant sent his email only to Mr. Orlins, and Bolling could not recall speaking with Orlins. Appellant‘s argument that it is “unlikely” that she would not have known of this email is unsupported and “based on guess or speculation.”65
III.
For the foregoing reasons, we affirm the trial court‘s grant of summary judgment to appellees.