WILLIAMS v. JOHNSONWILLIAMS v. JOHNSON
(March 18, 2010)
Plaintiff, Christina Conyers Williams, brings this action against the District of Columbia, and her supervisors Robert Johnson, individually and as Senior Deputy Director of the Addiction Prevention and Recovery Administration (“APRA“) of the District of Columbia Department of Health (“DOH“), and David Anthony, individually and as Chief of Staff to the Senior Deputy Director of APRA (collectively “Defendants“). Plaintiff alleges that Defendants violated her rights under the First Amendment and the District of Columbia Whistleblower Protection Act (“WPA“),
Presently pending before the Court are the parties’ cross-motions for summary judgment. Defendants have filed a [68] Motion for Summary Judgment, arguing that Plaintiff‘s remaining claims are without merit because Plaintiff‘s testimony before the D.C. Council does not constitute protected disclosures and Defendants had no knowledge that Plaintiff privately met with the individual Councilmember. Plaintiff in turn has filed a [72] Motion for Partial
I. BACKGROUND
A. Factual Background
At all times relevant to this action, Plaintiff was employed as Chief of the Center of
1. Plaintiff‘s Testimony Before the D.C. Council Committee on Health
On February 14, 2006, Plaintiff and Defendant Johnson attended a routine oversight hearing before the D.C. Council Committee on Health (“Committee“), headed by Councilmember David Catania. Id. ¶ 5 & Ex. E (D.C. Office of Cable Television video
During the course of the February 14, 2006 hearing, Councilmember Catania asked several questions regarding the ACIS software. Id. ¶ 10 & Ex. E (D.C. Office of Cable Television video recording of the Feb. 14, 2006 D.C. Council Committee on Health hearing); see also Pl.‘s Opp‘n, Ex. E (Transcript of selected portions of Feb. 14, 2006 D.C. Council Committee on Health hearing).3 He began the discussion by commenting that “the clock is
Plaintiff did so and subsequently provided approximately ten minutes of testimony in response to Councilmember Catania‘s questions about the ACIS software. See id. ¶¶ 12, 13 & Ex. E (D.C. Office of Cable Television video recording of the Feb. 14, 2006 D.C. Council Committee on Health hearing) at 1:10:20-1:19:20. Plaintiff began her testimony by stating that she was the individual responsible for the ACIS software. Id. ¶ 14. Councilmember Catania then repeated his question about the type of data that was being collected by the ACIS software; Plaintiff testified that, to-date, the software was capable of collecting only “demographic data” — i.e., the gender and race of APRA‘s clients and the type of drugs that the clients were using. Id. ¶ 15; see also id., Ex. E (D.C. Office of Cable Television video recording of the Feb. 14, 2006
After several minutes of additional discussion regarding the collection of data and the purpose of the ACIS software, Councilmember Catania asked Plaintiff when the ACIS software would be “up and functioning in every corner of APRA with every vendor that we utilize?” Defs.’ Stmt., Ex. E (D.C. Office of Cable Television video recording of the Feb. 14, 2006 D.C. Council Committee on Health hearing) at 1:17:53-1:18:13. Plaintiff responded that ACIS would be fully functional by “November 2006.” Id. ¶ 16 & Ex. E (D.C. Office of Cable Television video recording of the Feb. 14, 2006 D.C. Council Committee on Health hearing) at 1:18:13-15. Councilmember Catania responded by stating, “Oh good. That‘s a short period of time. . . . I hope that you are right because that is a very optimistic deadline.” Id. ¶ 17 & Ex. E (D.C. Office of Cable Television video recording of the Feb. 14, 2006 D.C. Council Committee on Health hearing) at 1:18:16-1:18:39. He further continued that if Plaintiff met that deadline, he would “personally recommend [her] promotion to whatever point and place in this government” she requested. Id. Defendants suggest that these comments by Councilmember Catania should be construed literally and taken as evidence that he was pleased with Plaintiff‘s testimony that the
The hearing then shifted to a discussion of another topic. Id. ¶ 17 & Ex. E (D.C. Office of Cable Television video recording of the Feb. 14, 2006 D.C. Council Committee on Health hearing) at 1:18:20. When Councilmember Catania regained the microphone approximately ten minutes later, he once again expressed dissatisfaction with the slow progress being made with respect to the ACIS software implementation, particularly given the large amount of money being spent on the system. Id. ¶ 18 & Ex. E (D.C. Office of Cable Television video recording of the Feb. 14, 2006 D.C. Council Committee on Health hearing) at 1:31:09-1:33:50. Councilmember Catania also noted that the written responses submitted by APRA in advance of the hearing indicated that — in contrast to Plaintiff‘s testimony — the “expected date of delivery” for a fully functioning ACIS system was July of 2006; in light of Plaintiff‘s testimony, however, Councilmember Catania stated that “we‘re going to go and move once again from the July deadline to the November ‘06 deadline, but then that is it.” Pl.‘s Resp. ¶ 43; see also Defs.’ Stmt., Ex. E (D.C. Office of Cable Television video recording of the Feb. 14, 2006 D.C. Council
that if I don‘t have a fully functioning ACIS system by November of ‘06, we‘re going to investigate how this supposed contract got let. This, what looks like a competitively bid contract, I don‘t see that being competitive. . . . if anyone is seriously thinking we‘re going to spend 3 million dollars on what could be an off-the-shelf system, they‘re nuts. . . . [T]his smells. . . . So I mean it, November ‘06, it better go nowhere near that 3 million dollar mark because if I find that these vendors have provided us claims that cannot be substantiated, I‘ll introduce them to the beauty of the False Claims Act. . . . Okay, so unless these vendors are prepared to go out of business, I suggest they get this system up and running and under this trumped up budget and they be quick about it.
Pl.‘s Resp. ¶¶ 44-49; see also Defs.’ Stmt., Ex. E (D.C. Office of Cable Television video recording of the Feb. 14, 2006 D.C. Council Committee on Health hearing) at 1:31:53-1:33:50.
2. Alleged Retaliatory Acts Taken by Defendants Immediately Following the D.C. Council Committee on Health Hearing
Plaintiff asserts — and Defendants do not dispute for purposes of this Memorandum Opinion — that “defendants began to harass [Plaintiff]” immediately following her testimony before the D.C. Council. Pl.‘s Resp., Ex. D (Pl.‘s Supplemented Answer to First Interrogatories) at p. 11; see also Defs.’ Stmt. ¶ 19 & n.1 (indicating that although “Defendants dispute plaintiff‘s allegations that she was retaliated against or harassed, [] this dispute is not material for the purposes of [Defendants‘] motion [for summary judgment]“). According to Plaintiff, while she had a “good working relationship” with Defendant Johnson prior to testifying at the February 14, 2006 hearing, “the relationship immediately underwent a complete change” directly following her testimony before the D.C. Council. Pl.‘s Resp. ¶¶ 50-51. Specifically, Plaintiff alleges that Defendant Johnson held an unprecedented “debriefing” session the next day at work, during which he blamed Plaintiff “for doing a poor job of answering [Councilmember] Catania because she said the ACIS contract would not be ready until November 2006” and complained that her
3. Plaintiff‘s Private Meeting with D.C. Councilmember Catania on March 8, 2006
Shortly thereafter, Plaintiff‘s husband arranged for her to have a private meeting with Councilmember Catania to discuss Defendants’ alleged retaliation against Plaintiff based upon her testimony at the February 14, 2006 D.C. Council hearing. Defs.’ Stmt. ¶ 22. The meeting took place on March 8, 2006. See Defs.’ Stmt., Ex. A (Excerpts from Dec. 22, 2008 Deposition of Christina Conyers Williams) (hereinafter “Williams Dep.“) at 55:6-10 (indicating that meeting took place in “the first week of March“); id., Ex. F (Declaration of Tori Fernandez Whitney) (hereinafter, “Whitney Decl.“) ¶ 9 (confirming that meeting took place on March 8, 2006). The only people present at the meeting were Plaintiff and her husband as well as Councilmember Catania and two of his staff members, specifically, Councilmember‘s special policy advisor Tori Fernandez Whitney and another unidentified member of the Councilmember‘s staff. Defs.’ Stmt.
4. Defendants’ Knowledge of Plaintiff‘s March 8, 2006 Private Meeting with Councilmember Catania
Plaintiff admits that she did not tell anyone prior to the March 8, 2006 meeting that she intended to meet privately with Councilmember Catania. Defs.’ Stmt. ¶ 25; see also Williams Dep. at 56:2-5 (“Q. Did you discuss the fact that you were going to meet with City Councilman Cantania [sic] with anybody other than your husband? A. No.“). Plaintiff also admits that neither she nor her husband discussed the meeting with anyone after it took place, explaining that “City Councilman Catania made it very clear . . . that the meeting was closed door and should not be discussed.” Defs.’ Stmt. ¶ 26; see also Williams Dep. 62:9-18. In particular, Plaintiff concedes that she never spoke with Defendant Johnson or Defendant Anthony about the March 8, 2006 meeting. Defs.’ Stmt. ¶ 30. She further admits that no one from APRA was aware that she planned to meet with Councilmember Catania and that she never spoke about the March 8, 2006 meeting with anyone from APRA. See Williams Dep. at 63:7-8, 19-21 (“Q. No one from APRA knew about the meeting? A. No one. . . . . Q. Did anybody at APRA ever speak to you about the meeting? A. No.“).
Defendants have also provided the declaration of Councilmember Catania‘s special policy advisor, Ms. Whitney, who avers that she did not reveal that the March 8, 2006 meeting had taken place to anyone at DOH or APRA nor did she discuss the meeting with anyone at DOH or APRA until after this lawsuit was filed. Defs.’ Stmt. ¶¶ 27, 29; see also Whitney Decl. ¶¶ 10,
Finally, both Defendant Johnson and Defendant Anthony aver that they did not learn about the March 8, 2006 meeting until after the instant lawsuit was filed. See Defs.’ Stmt. ¶¶ 35-36; see also id., Ex. B (Declaration of Robert Johnson) (hereinafter, “Johnson Decl.“) ¶ 6; id., Ex. C (Declaration of David Anthony) (hereinafter, “Anthony Decl.“) ¶ 6.
Based on this record, Plaintiff concedes that “she has no direct evidence that anyone at APRA knew about the meeting at the time” it occurred. Pl.‘s Resp. ¶ 20. She maintains, however, that she has proffered sufficient “indirect evidence that the fact of the meeting and its agenda leaked from Councilman Catania‘s office” at some unspecified time after the meeting took place. Id. The Court does not agree. Plaintiff herself testified at deposition that she has no
Q. No one from APRA knew about the meeting?
A. No one.
Q. Did anybody at APRA learn about the meeting?
A. I don‘t know because I never said anything to anybody and my husband didn‘t know APRA staff, so he never said anything. I just know on my part I never spoke about it again to nobody else.
Q. You have no reason to believe your husband did?
A. I don‘t think so.
Q. Did anybody at APRA ever speak to you about the meeting?
A. No.
Q. Did Mr. Johnson know about the meeting?
A. No.
Q. Did Mr. Anthony know about the meeting?
A. No.
Q. Either before or after it occurred?
A. I know before no. After, I don‘t know if someone in his office spoke with someone else, I don‘t know from me, from myself I never spoke to either one of them.
Q. Do you have any reason to believe that Mr. Johnson knew about the meeting?
A. Before?
Q. That he ever?
A. Apparently, his retaliation continued at a higher rate, after a week or two his
retaliation took on a different spin. Q. Anything else other than that?
A. He never discussed anything with me about Mr. Cantania [sic].
Q. You are shaking your head?
A. No, Mr. Johnson never spoke to me about the meeting with Mr. Cantania [sic].
Q. Do you . . . have any reason to believe Mr. Anthony knew about the meeting?
A. No, not from me.
Q. Did you hear or observe anything to lead you to believe that he had?
A. No.
Q. You had no reason to believe anybody else at APRA knew about the meeting?
A. No, because it was only me and my husband with Mr. Catania and his aides.
Williams Dep. at 63:7-65:12.
As is clear from review of this testimony, Plaintiff herself has no personal knowledge that either Defendants were aware of her March 8, 2006 meeting with Councilmember Catania. While she speculated in her testimony that Defendant Johnson, in particular, may have learned of the meeting at some unspecified point in time after it occurred, she conceded that she did know whether he in fact had knowledge of the meeting. Id. at 64:1-10 (“I know before no. After, I don‘t know if someone in his office spoke with someone else, I don‘t know from me, from myself I never spoke to either one of them.“). Rather, her testimony was based solely on her opinion that “his retaliation continued at a higher rate, after a week or two his retaliation took on a different spin.” Id. at 64:15-17. Plaintiff, however, did not specify how Defendant Johnson‘s allegedly retaliatory actions changed in the week or two after March 8, 2006. See id. Nor has
Plaintiff‘s reliance on the declaration of Dorothy Smith is similarly misplaced.6 Ms. Smith, an employee of APRA, avers that Defendant Anthony informed her in April of 2006 that “he was going to fire one of his own managers, an employee named Christine [sic] Williams.” Pl.‘s Resp., Ex. B (Declaration of Dorothy Smith) (hereinafter, “Smith Decl.“), ¶ 2. According to
[Defendant] Anthony told [her] that [Plaintiff] was not on good terms with her boss Robert Johnson because of her testimony before the D.C. Council. Anthony stated that Johnson was unhappy and displeased about the things [Plaintiff] said at a hearing before Councilman Catania. Johnson said that [Plaintiff] “talked too much” and revealed things to Councilman Catania that Johnson did not want disclosed.
Id. ¶ 3. Plaintiff urges that a “reasonable jury could [] find that Ms. Smith‘s statement . . . refers to the private meeting between Councilman Catania and Ms. Williams and not just to Ms. Williams’ testimony before the Council,” such that “both Mr. Johnson and Mr. Anthony both [sic] knew about Ms. Williams’ private March 8, 2006 meeting with Council member Catania.” Pl.‘s Opp‘n at 21-22. The Court is not so persuaded. Ms. Smith — who submitted a declaration on Plaintiff‘s behalf in this matter — does not mention or refer to the March 8, 2006 meeting. To the contrary, she avers only that she was informed Defendant Johnson was displeased “because of [Plaintiff‘s] testimony before the D.C. Council.” Smith Decl. ¶ 3. Plaintiff‘s claim that Ms. Smith‘s statements should be read to indicate that Defendants were also aware of, and unhappy with, Plaintiff‘s meeting with Councilmember Catania is without merit.
In addition, Plaintiff directs the Court to the deposition testimony of Julian Muhammad, who served as risk manager at DOH during the relevant time period. See Pl.‘s Resp. ¶ 20; see also Pl.‘s Not. of Filing Deposition of Julian Muhammed, Docket No. [81] (hereinafter, “Muhammed Dep.“), at 6:14-16. The cited portions of Mr. Muhammed‘s testimony, however, do not mention or refer to the private March 8, 2006 meeting between Plaintiff and Councilmember Catania, let alone indicate whether Mr. Muhammed had reason to believe that either Defendant Johnson or Defendant Anthony were aware that such a meeting had taken place; indeed, there is no indication that Mr. Muhammed himself was aware that such a meeting ever occurred. See
Accordingly, Plaintiff has failed to proffer any evidence on the present record (either of a direct or indirect nature) to contradict Defendant Johnson and Defendant Anthony‘s sworn statements that they were unaware of Plaintiff‘s private meeting with Councilmember Catania until after this lawsuit was filed. The Court therefore finds that Plaintiff has failed to demonstrate that a dispute of material fact exists with respect to Defendants’ knowledge of the March 8, 2006 meeting.
5. Defendants’ Alleged Efforts to Terminate Plaintiff for Failure to Comply with a District Residency Preference Requirement
Finally, Plaintiff alleges — and Defendants do not dispute for purposes of this memorandum opinion — that Defendant Johnson, with assistance from Defendant Anthony, attempted to terminate Plaintiff for failure to comply with a District residency preference requirement. See Defs.’ Stmt. ¶¶ 20-21; see also Pl.‘s Resp. ¶ 61. According to Plaintiff, on or about April 3, 2006, she was informed by Mr. Muhammad that she had been accused of violating a statutory requirement that she remain a resident of the District of Columbia. Pl.‘s Resp. ¶ 61 & Ex. D (Pl.‘s Supplemented Answer to First Interrogatories) at p. 4. Thereafter, on May 1, 2006, DOH issued a Notice to Show Cause why Plaintiff‘s employment should not be forfeited due to non-compliance with the D.C. residency preference requirement. Id. ¶ 64 & Ex. C (Final Decision and Order to Dismiss regarding Christian Williams Residency Preference Determination) at 2. Pre-hearing conferences were held on May 5, 2006 and on May 15, 2006, at which Plaintiff and representatives from the District were in attendance. Id. ¶ 64 & Ex. C (Final
The charge was ultimately dismissed against Plaintiff on August 8, 2006, on the basis that: (1) the “Agency‘s evidence fail[ed] to establish that [Plaintiff] was granted a residency requirement,” and the Agency therefore “ha[d] not met its burden of proof to show that [Plaintiff] was required to live in the District for five years from the date of appointment and that her failure to do so violated the residency requirement resulting in forfeiture of the position;” and (2) “[e]ven assuming arguendo that the [Plaintiff] received a residency preference . . . [t]he failure of the Agency to follow its procedures in providing a written notice to the [Plaintiff] and obtaining a written certification that she received notification of the residency requirements deprived [Plaintiff] of adequate notice and does not comply with basic due process.” Id. ¶ 64 & Ex. C (Final Decision and Order to Dismiss regarding Christian Williams Residency Preference Determination) at 12.
B. Procedural History
Plaintiff‘s First Amended Complaint contains two claims. Count I is brought pursuant to
By order and memorandum opinion dated March 14, 2008, the Court dismissed Plaintiff‘s First Amendment Claim (Count I) insofar as it was based upon her testimony before the D.C. Council and also dismissed any potential Whistleblower Protection Act claim (Count II) against Defendants Johnson and Anthony in their individual capacities. See Williams v. Johnson, 537 F. Supp. 2d 141 (D.D.C. 2008). Plaintiff‘s remaining claims in this action are therefore as follows: (1) Plaintiff‘s First Amendment claim remains viable as against the District and Defendants Johnson and Anthony in their individual as well as official capacities to the extent it is premised upon speech made during the March 8, 2006 private meeting with Councilmember Catania; and (2) Plaintiff‘s WPA claim remains viable in its entirety (i.e., based upon her testimony before the D.C. Council as well as statements made during her private meeting with Councilmember Catania), but only as asserted against the District and Defendants Johnson and Anthony in their official capacities.
Defendants have now moved for summary judgment on Plaintiff‘s remaining claims. See Defs.’ MSJ, Docket No. [68]. Defendants first argue that they are entitled to summary judgment on Plaintiff‘s WPA claim, to the extent it is based on her testimony before the D.C. Council, because such statements do not qualify as protected disclosures under the Act. Second, Defendants argue that they are entitled to summary judgment on both Plaintiff‘s First Amendment and WPA claims, to the extent each are based on statements made during the private
In addition, Plaintiff has filed a [72] Motion for Partial Summary Judgment on grounds of collateral estoppel, in which she argues that Defendants are barred under the principles of collateral estoppel from relitigating at trial any claim that Plaintiff violated the District of Columbia Residency Preference Act. Defendants have filed an opposition to Plaintiff‘s motion, see Defs.’ Opp‘n, Docket No. [78], and Plaintiff a reply, see Pl.‘s Reply, Docket No. [80]. Accordingly, the parties’ motions are both fully briefed and ripe for the Court‘s resolution.
Pursuant to
Although a court should draw all inferences from the supporting records submitted by the nonmoving party, the mere existence of a factual dispute, by itself, is insufficient to bar summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To be material, the factual assertion must be capable of affecting the substantive outcome of the litigation; to be genuine, the issue must be supported by sufficient admissible evidence that a reasonable trier-of-fact could find for the nonmoving party. Laningham v. U.S. Navy, 813 F.2d 1236, 1242-43 (D.C. Cir. 1987); Liberty Lobby, 477 U.S. at 251 (the court must determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law“). “If the evidence is merely colorable, or is not sufficiently probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249-50
III. DISCUSSION
A. Defendants’ Motion for Summary Judgment
The Court begins by considering Defendants’ motion for summary judgment. As indicated above, Defendants make two principal arguments in favor of their motion for summary judgment. First, Defendants argue that they are entitled to summary judgment on Plaintiff‘s WPA claim, insofar as it is based on alleged statements made before the D.C. Council, because such statements do not constitute protected disclosures under the WPA. Second, Defendants argue that they are entitled to summary judgment on Plaintiff‘s First Amendment and WPA claims, insofar as each are based on statements made during her private meeting with Councilmember Catania, because the record demonstrates that Defendants were unaware that the meeting had taken place and therefore could not have retaliated against her on that basis as a matter of law. Each argument shall be considered in turn below.
Defendants first argue that Plaintiff‘s statements made before the D.C. Council Committee on Health at the February 14, 2006 hearing do not qualify as protected disclosures under the WPA. The District of Columbia‘s Whistleblower Protection Act prohibits, in relevant part, a supervisor from threatening to take or taking a prohibited personnel action or otherwise retaliating against an employee because of the employee‘s “protected disclosure.”
any disclosure of information, not specifically prohibited by statute, by an employee to a supervisor or a public body that the employee reasonably believes evidences:
(A) Gross mismanagement;
(B) Gross misuse or waste of public resources or funds;
(C) Abuse of authority in connection with the administration of a public program or the execution of a public contract;
(D) A violation of a federal, state, or local law, rule, or regulation, or of a term of a contract between the District government and a District government contractor which is not of a merely technical or minimal nature; or
(E) A substantial and specific danger to the public health and safety.
The District of Columbia Court of Appeals has recently explained that “[a] ‘protected disclosure’ under the DC-WPA is one that the employee ‘reasonably believes’ evidences one or more of the circumstances delineated in
To determine whether an individual reasonably believed that such errors constituted gross misconduct or abuse or were illegal, a court must consider whether “‘a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee [could] reasonably conclude that the actions of the government evidence [illegality, gross abuse, etc.].‘” Zirkle v. District of Columbia, 830 A.2d 1250, 1259-60 (D.C. 2003) (quoting Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999)). “‘A purely subjective perspective of an employee is not sufficient even if shared by other employees.‘” Id. The key inquiry remains whether the plaintiff reasonably believed the conduct disclosed was illegal and/or a gross abuse and not whether the conduct was in fact ultimately found to be illegal or a gross abuse, etc. See id.
Plaintiff in this case alleges that her statements before the D.C. Council that (1) the ACIS software was capable at that time of collecting only demographic data and (2) the system would not be fully functional until November of 2006 qualify as protected disclosures under the WPA. Am. Compl. ¶¶ 41-42. According to Plaintiff, these statements revealed that the ACIS software was a “major failure.” Id. Specifically, she asserts that this testimony revealed that, despite the significant monetary expenditures made on the system, the ACIS software was currently unable to track crucial information concerning an individual‘s education and use of drugs (i.e., non demographic information), and that the software would not be completed until November 2006, contrary to APRA‘s written statement indicating that the software would be ready by July 2006. Id. Plaintiff therefore urges that these statements qualify as protected disclosures because she reasonably believed that the statements evidenced (1) “[g]ross management,”
Defendants contend that Plaintiff‘s statements do not qualify as protected disclosures under any of the relevant D.C. Code provisions for two principal reasons. First, Defendants assert that the D.C. Council was already aware that the ACIS software system was a “major failure.” Defs.’ MSJ at 9-10. Accordingly, Defendants urge that Plaintiff‘s testimony did not reveal any new information and therefore cannot qualify as a “disclosure” under the WPA. Id. The Court does not agree. While District of Columbia case law suggests that a plaintiff‘s statements do not qualify as “protected disclosures” under the WPA if the statements conveyed only information that was already known to the person to whom the information is reported, see Wilburn, 957 A.2d at 925-26, Defendants have not shown that this was the case in this instance. Defendants’ only evidence in support of their position that Plaintiff‘s testimony disclosed no new information is Councilmember Catania‘s statement, made at the beginning of the discussion regarding the ACIS software, that “a whole lot of money has been poured into this system [i.e., the ACIS software system] and we still don‘t have anything to show for it.” See Defs.’ MSJ at 10. This statement, however, is insufficient to establish that Councilmember Catania knew either that the ACIS software could collect only demographic information or that it would not be fully functional until November of 2006. Although Councilmember Catania‘s comment suggests that he was already aware, or at least suspected, that the ACIS software was
Second, Defendants contend that even if Plaintiff‘s statements disclosed information not previously known, her WPA claim based on her testimony before the D.C. Council nonetheless fails because “[a]t worst, her [testimony] reveals that a government project was six-months behind schedule.” Defs.’ MSJ at 10-11. Defendants urge that such testimony “merely buttressed Councilmember Catania‘s prior knowledge that the ACIS project was expensive and was not performing as expected.” Defs.’ Reply at 4. Defendants therefore conclude that “no reasonable juror could find that plaintiff‘s Council testimony was evidence of the type of gross abuse covered by the WPA.” Id. at 11. The Court does not agree. Drawing all reasonable inferences in Plaintiff‘s favor, her statements disclosed specific evidence that a three million dollar software system was both largely ineffective and behind schedule. Indeed, after hearing Plaintiff‘s testimony, Councilmember Catania questioned the validity of spending “3 million dollars on
2. Plaintiff‘s Claims of Retaliation in Violation of the WPA and the First Amendment Based Upon Statements Made During her Private Meeting with Councilmember Catania
Defendants next argue that Plaintiff‘s claims of retaliation — under both the WPA and the First Amendment — fail to the extent that each is based on statements made by Plaintiff during her meeting with Councilmember Catania on March 8, 2006. Specifically, Defendants contend that there is no evidence on the present record that Defendants knew about Plaintiff‘s meeting with Councilmember Catania, such that Plaintiff cannot succeed on her claims that Defendants retaliated against her based on protected disclosures made during that meeting. See Defs.’ MSJ at 11-12. For the reasons set forth below, the Court agrees and shall therefore grant Defendants’ motion for summary judgment on Plaintiff‘s First Amendment and WPA
To prevail on her section 1983 claim alleging retaliation in violation of her First Amendment rights, Plaintiff must show, inter alia, that her speech was “a substantial or motivating factor in prompting the retaliatory or punitive act.” Wilburn v. Robinson, 480 F.3d 1140, 1149 (D.C. Cir. 2007) (quoting O‘Donnell v. Barry, 148 F.3d 1126, 1133 (D.C. Cir. 1999)). Similarly, to succeed on her WPA claim, Plaintiff is required to demonstrate as part of her prima facie case that the protected disclosure was a “contributing factor” to the allegedly retaliatory actions and a jury must ultimately find that “a direct causal link in order for there to be liability” — i.e., that Defendants would not have taken the allegedly retaliatory actions “but for” her protected disclosures. Johnson v. District of Columbia, 935 A.2d 1113, 1119 (D.C. 2007) (emphasis in original) (internal quotation marks omitted). The causation inquiry, then, is substantially similar under both the First Amendment and the WPA. While the question is ordinarily one of fact for the jury, see Wilburn, 480 F.3d at 1149, summary judgment may be granted where, as here, the plaintiff has failed to proffer any evidence (either of a direct or indirect nature) from which a reasonable jury could find the required causal link between the protected disclosures allegedly made by Plaintiff to Councilmember Catania at the March 8, 2006 meeting and the allegedly retaliatory actions. See Amos v. District of Columbia, 589 F. Supp. 2d 48, 56 (D.D.C. 2008) (granting summary judgment to the District of Columbia where “no one in the D.C. government knew that [plaintiff] had [made the protected disclosure],” such that the disclosures “could not have been a substantial or motivating factor” for the allegedly retaliatory action); Johnson, 935 A.2d at 1120-21 (affirming grant of summary judgment to District of
Plaintiff has failed to proffer any evidence that Defendants were aware of her private meeting with Councilmember Catania at anytime prior to the institution of this lawsuit, and the record is therefore devoid of any evidence from which a reasonable jury could find that Defendants retaliated against her for statements made during that meeting. As discussed above, Plaintiff concedes that she lacks any direct evidence that anyone at APRA, including either Defendant Johnson or Defendant Anthony, was aware of her meeting with Councilmember Catania, see Pl.‘s Resp. ¶ 20, and the Court finds that she has not offered sufficient indirect evidence from which a reasonable jury could infer Defendants’ knowledge of the meeting. See generally supra at pp. 10-16. At most, Plaintiff‘s evidence demonstrates that she met with Councilmember Catania on March 8, 2006, and that approximately three weeks later she was informed by Mr. Muhammad that she had been accused of violating a statutory requirement that she remain a resident of the District of Columbia. Although in many instances temporal proximity by itself may be sufficient to create an inference of retaliation based on a protected activity, the Court concludes that — in light of the specific facts of this case — a jury could not reasonably infer that Defendants retaliated against Plaintiff for her participation in the March 8, 2006 meeting simply because the alleged retaliatory action (i.e., the investigation into Plaintiff‘s compliance with the District‘s residency requirement) took place shortly after her meeting with Councilmember Catania. In addition, Defendants undisputably had knowledge of Plaintiff‘s testimony before the D.C. Council on February 14, 2006, and, according to Plaintiff, began their
For this reason, Plaintiff‘s reliance on Jones v. Bernanke, 557 F.3d 670 (D.C. Cir. 2009), is misplaced, as the plaintiff in that case demonstrated that the defendant employer had knowledge of the protected activity. Id. at 678-79 (finding plaintiff‘s evidence that the employer had knowledge of the employee‘s protected activity, and that the adverse personnel action took place shortly after that activity, sufficient to permit an inference of retaliatory motive). Even setting that fact aside, however, the Court is not persuaded that the D.C. Circuit‘s opinion in Jones, which involved consideration of a retaliation claim under Title VII of the Civil Rights Act of 1964, is directly applicable to Plaintiff‘s instant claim of retaliation in violation of the First Amendment and the WPA. In considering claims of retaliation under Title VII, the D.C. Circuit has made clear that the prima facie case is “almost always irrelevant;” a district court therefore need not, and should not, decide whether a plaintiff has met her prima facie burden under the McDonnell Douglas burden shifting test, but should instead proceed directly to consider the ultimate issue of retaliation vel non. Id. at 678 (quoting Brady v. Off. of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008)).
B. Plaintiff‘s Motion for Partial Summary Judgment
The Court turns finally to consider Plaintiff‘s [72] Motion for Partial Summary Judgment, in which she contends that Defendants are precluded from relitigating at trial any claim that Plaintiff violated the District of Columbia Residency Preference Act. Collateral estoppel bars a party from relitigating “‘(1) [an] identical issue (2) that was fully and fairly litigated and (3) determined by a valid judgment on the merits (4) in which the issue was essential.‘” Melara v. China N. Indus. Corp., 658 F. Supp. 2d 178, 182 (D.D.C. 2009) (quoting Rogers v. Johnson-Norman, 466 F. Supp. 2d 162, 169 (D.D.C. 2006)). In this case, Plaintiff asserts that8 “[t]he District of Columbia has expressed the intention to relitigate at trial the issue of whether [Plaintiff] violated the D.C. Residency Preference Act.” Pl.‘s MSJ at 5. Plaintiff contends, however, that the District is precluded from doing so under the rules of collateral estoppel because the D.C. Office of Personnel has already found “that [Plaintiff] was not subject to a
Unfortunately for Plaintiff, her argument is premised on a mischaracterization of the D.C. Office of Personnel‘s final decision. Although Plaintiff is correct that the Office of Personnel ultimately dismissed the charges against Plaintiff, it did so based upon its conclusion that “the evidence of record establishes by a preponderance of the evidence that the Agency has not met its Burden of proof in the matter.” Pl.‘s MSJ, Ex. C (Final Decision and Order to Dismiss regarding Christian Williams Residency Preference Determination) at 12. Specifically, the Office of Personnel dismissed the charges against Plaintiff based on a finding that: (1) the District “ha[d] not met its burden of proof to show that [Plaintiff] was required to live in the District for five years from the date of appointment and that her failure to do so violated the residency requirement resulting in forfeiture of the position;” and (2) “[e]ven assuming arguendo that the [Plaintiff] received a residency preference . . . [t]he failure of the Agency to follow its procedures in providing a written notice to the [Plaintiff] and obtaining a written certification that she received notification of the residency requirements deprived [Plaintiff] of adequate notice and does not comply with basic due process.” Id. Contrary to Plaintiff‘s assertions, the Office of
In addition, the Court notes that Plaintiff‘s requests to bar Defendants from proffering certain evidence at trial and to provide certain instructions to the jury regarding the preclusive effect of the Office of Personnel‘s final decision are premature. Such requests are more appropriately dealt with through a motion in limine rather than through the pending motion for partial summary judgment. At the pre-trial stage in this litigation, the parties will have a more concrete understanding of the type of evidence they intend to introduce at trial as well as the manner in which they intend to utilize such evidence. While the District may arguably be precluded from relitigating at trial the propriety of the Office of Personnel‘s final decision dismissing the charges against Plaintiff, it does not necessarily follow that Defendants are barred from proffering evidence in support of their position that the charges against Plaintiff were brought for non-retaliatory reasons. To the extent Defendants seek to do so at trial by presenting evidence relating to the Office of Personnel‘s final decision, rulings regarding the admissibility of such evidence are better left for pre-trial motions in limine. Accordingly, the Court DENIES Plaintiff‘s [72] motion for partial summary judgment. Plaintiff may re-raise any evidentiary issues relating to the charges against Plaintiff and the Office of Personnel‘s final decision, as may be appropriate, at the motions in limine stage.
For the reasons set forth above, Defendants’ [68] Motion for Summary Judgment is GRANTED-IN–PART and DENIED-IN-PART. Specifically, Defendants’ motion is GRANTED with respect to Plaintiff‘s claims of retaliation in violation of the First Amendment and the WPA based on her private meeting with the D.C. Councilmember Catania, but is DENIED with respect to Plaintiff‘s WPA claim based upon her testimony before the D.C. Council. As such, only Plaintiff‘s allegation in Count II of the First Amended Complaint that Defendants impermissibly retaliated against her in violation of the WPA for remarks made to the D.C. Council remains viable. The Court shall also DENY Plaintiff‘s [72] Motion for Partial Summary Judgment. Plaintiff may re-raise any evidentiary issues relating to the charges against Plaintiff and the Office of Personnel‘s final decision, as may be appropriate, at the motions in limine stage.
Date: March 18, 2010
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge