Donald M. McCall v. D.C. Housing Authority , 126 A.3d 701 ( 2015 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 14-CV-337
DONALD M. MCCALL, APPELLANT,
v.
D.C. HOUSING AUTHORITY, et al., APPELLEES.
Appeal from the Superior Court
of the District of Columbia
(CAB-8225-12)
(Hon. Thomas J. Motley, Trial Judge)
(Submitted February 26, 2015 Decided November 19, 2015)
F. Douglas Hartnett was on the brief for appellant.
Alfred L. Scanlan, Jr., and James N. Markels were on the brief for appellee.
Before WASHINGTON, Chief Judge, MCLEESE, Associate Judge, and BELSON,
Senior Judge.
BELSON, Senior Judge: Appellant Donald McCall filed a complaint against
the District of Columbia Housing Authority (DCHA) and four DCHA police
officers based on the District of Columbia Whistleblower Protection Act (WPA),
D.C. Code §§ 1-615.51-59 (2012 Repl.), on October 19, 2012. He now appeals
from the trial court‟s order dismissing his complaint as barred by the applicable
2
one-year statute of limitations.1 We reverse, holding (1) that McCall should have
the opportunity to demonstrate that the defendants violated the WPA by bringing
about a hostile work environment that persisted into the limitations period, and (2)
that regardless of the success or failure of McCall‟s hostile work environment
claim, his termination as alleged constituted a discrete violation of the statute that
independently triggered the limitations period.
I. Facts
We summarize the facts as alleged in the complaint, taking them as true for
purposes of reviewing the order dismissing the complaint. On January 5, 2011,
McCall was working as a Special Police Officer (SPO) for DCHA when he
arrested a man known as “Black” for violating a DCHA notice barring him from
entering the Garfield Terrace apartments. After the arrest, McCall found
marijuana, cocaine, and drug paraphernalia on the arrestee‟s person and in the
apartment where he was found. At this point McCall called for back-up, and “after
1
D.C. Code § 1-615.54 (a)(2) (“A civil action [alleging a violation of § 1-
615.53 of the Whistleblower Protection Act] shall be filed within three years after
a violation occurs or within one year after the employee first becomes aware of the
violation, whichever occurs first.”).
3
arriving on the scene a Metropolitan Police unit from the 3rd District assisted him
in searching the apartment for additional drugs and other contraband (guns).”2
Other members of the DCHA police force arrived, and instructed McCall to
give the arrestee a new five-year barring notice. They then removed the arrestee‟s
handcuffs, and told him he was free to go. When McCall asked why, he was told
that the order came from a supervisor, Sergeant Clarence Major and that he should
“go home.” Standard police forms documenting the arrest were not created, the
drugs and drug paraphernalia were not seized or properly processed and, McCall
alleges, they may instead have been sold or returned to drug dealers in the
community.
When McCall later asked Sergeant Major about the drugs, Sergeant Major
replied “[l]ook I‟m not the one who‟s going to look bad here I‟m going to put it on
you.” McCall wrote a standard statement detailing the events of January 5.
Lieutenant Johnnie Villines, DCHA Police Region Commander, asked another
officer (“E”) who had been on duty that night to lie in a manner that incriminated
2
The complaint contains little further discussion regarding the role played
by the Metropolitan Police Department (MPD), except for mention of the fact that
the Third District‟s records contained no documentation of the arrest and
subsequently discovered contraband.
4
McCall instead of the other officers involved, but “E” refused and as a result
suffered punishment by DCHA authorities. Subsequently, a “campaign of
harassment” began against McCall, involving excessive and repeated scrutiny and
false accusations of workplace blunders. The goal of this campaign was to force
McCall to quit or to find a pretext for firing him.
On or about April 5, 2011, McCall was ordered to attend a class on the
District‟s disorderly conduct statute at the MPD Training Academy. During a
break in the class, Lieutenant Julia Meyers called McCall back to DCHA
headquarters. As McCall walked into the building, Officer Floyd Flavors stated
that he would kill McCall if he continued to push the issue of the stolen narcotics.
In the meeting with Lieutenant Meyers, McCall was accused of impersonating a
police officer based on information that he reported to the class without his
badge—a situation that McCall had remedied by retrieving his badge from his car.
Nevertheless, McCall was placed on administrative leave on that same day, April
5, 2011, while the false impersonation charge was investigated—actions that
McCall views as retaliatory. DCHA officials sought a warrant for his arrest, but
were unable to obtain the cooperation of the U.S. Attorney. No charges were ever
filed against McCall regarding the incident.
5
McCall was eventually reinstated, but he became very sick, and also feared
for his life. Because his medical issues and fear rendered him unable to return to
work, he left his home to live with family in the state of New York. As late as
May 17, 2011, McCall voiced his concerns about the incidents of January 5, 2011,
to various persons with the DCHA, including Lieutenant Villines and Nicole
Mason, an attorney with the DCHA. He submitted a claim for worker‟s
compensation, but Lieutenant Villines refused to help him with his paperwork, and
insisted that he return to work even after a physician had certified that McCall
should not be working. This refusal persisted even after McCall‟s attorney re-
submitted the worker‟s compensation claim with full documentation. Around the
third week of November, McCall received by mail a notice stating that his
employment had been terminated, effective October 21, 2011.
II. Procedural History
McCall filed the instant complaint against the DCHA and four DCHA police
officers on October 19, 2012, setting forth three counts alleging: (Count I)
violations of the WPA, (Count II) violations of the District of Columbia Human
Rights Act (DCHRA), and (Count III) wrongful termination. The defendants‟
motion for partial dismissal requested, inter alia, dismissal of the WPA count as
6
barred by the statute of limitations to the extent that it relied upon events occurring
more than one year before the filing of his complaint. In its ruling of July 11,
2013, however, the trial court dismissed McCall‟s WPA claim in its entirety. The
trial court reasoned that “any claim plaintiff may have had under the WPA started
to accrue the first time defendants allegedly took prohibited personnel action,” and
because McCall had been aware of an allegedly prohibited personnel action since
at the latest April 5, 2011, the day that he was placed on administrative leave, the
whistleblower claim he filed in October of 2012 was time barred in toto.
Following discovery, McCall filed a motion to dismiss Counts II and III
with prejudice, “in order to perfect for appeal” the trial court‟s ruling on the statute
of limitations with respect to Count I. The trial court granted the motion, and this
appeal followed.
III. Analysis
A. Standard of Review
“We review de novo the trial court‟s dismissal of a complaint pursuant to
Super. Ct. Civ. R. 12(b)(6),” and “apply the same standard as the trial court,
7
meaning we accept the allegations of the complaint as true.” Comer v. Wells
Fargo Bank, N.A., 108 A.3d 364, 371 (D.C. 2015) (internal quotation marks
omitted). “To survive a motion to dismiss, a complaint must set forth sufficient
facts to establish the elements of a legally cognizable claim,” Woods v. District of
Columbia, 63 A.3d 551, 552-53 (D.C. 2013), containing “sufficient factual matter,
accepted as true, to „state a claim to relief that is plausible on its face.‟” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007)).
B. Discussion
On appeal, McCall makes two arguments. His first argument is that the
alleged campaign of harassment against him created a hostile work environment
that should be considered a single continuing violation, allowing him to file suit
within one year3 of any act that is part of the hostile work environment. See
3
Although the issue of whether a plaintiff was “aware” of retaliatory action
for purposes of determining whether the one-year or three-year time bar applies is
a distinct question, McCall‟s complaint indicates that he quickly became aware
that his supervisors and co-workers were retaliating against him for attempted
whistleblowing. Neither party disputes that the applicable provisions require
McCall to file “within one year,” and we are satisfied that the one-year bar applies
in these circumstances. See Clayton v. District of Columbia, 931 F. Supp. 2d 192,
(continued . . .)
8
National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115, 118 (2002)
(“Hostile environment claims are different in kind from discrete acts. Their very
nature involves repeated conduct.”). This argument requires us to consider
whether the continuing violation doctrine, which we have applied in the
employment discrimination context, applies to the provisions of the WPA.
McCall‟s second argument is that even if his continuing violation argument
ultimately fails—either as a matter of fact or a matter of law—his termination was
a discrete violation of the WPA that independently triggers the statute of
limitations, regardless of whether his prior suspension likewise violated the
statute.4 Thus, we must also consider whether an employee is time-barred from
initiating a whistleblower protection action against an agency or its employees who
took a prohibited personnel action against him within the preceding year—in this
____________________________________
(. . . continued)
203 (D.D.C. 2013) (“an employee may argue that she did not learn that the action
was retaliatory until some later date, and thus, the one-year statutory period began
later”) (citing cases).
4
See supra note 3. We note also that while McCall‟s termination was
effective October 21, 2011, he did not learn of his termination until “approximately
the third week of November, 2011.” However, since McCall filed his complaint
on October 19, 2012, the correct date from which the statute of limitations began to
run—at least for purposes of McCall‟s termination-based claim—is immaterial.
9
case, termination—because more than one year had elapsed since the defendants‟
first alleged violation of the statute.
For the reasons given below, we agree with both of McCall‟s arguments, and
hold that both the hostile work environment and the termination that McCall
allegedly suffered constitute separate, actionable violations of the WPA—the
former occurring on a continuing basis that extended into the limitations period,
and the latter occurring clearly within that one-year period. Accordingly, we
reverse the order dismissing McCall‟s complaint, and remand for further
proceedings.
1. A Hostile Work Environment
Drawing upon case law from the employment discrimination context,
McCall asks this court to “allow claims [under the WPA] based on acts which
occur over time[,] creating a hostile environment.” “A hostile work environment
claim is comprised of a series of separate acts that collectively constitute „one
unlawful employment practice,‟” and thus “if an act contributing to the [hostile
work environment] claim occurs within the filing period, the entire time period of
the hostile environment may be considered by the court for the purposes of
10
determining liability.” Lively v. Flexible Packaging Ass’n, 830 A.2d 874, 890
(D.C. 2003) (citing Morgan, supra, 536 U.S. at 116-17) (quotation marks omitted,
brackets in original). Ultimately, we conclude that the creation of a hostile work
environment in retaliation for a protected disclosure constitutes a violation of the
WPA. We also conclude that the complaint, fairly read, would permit a finder of
fact to determine that an act contributing to that work environment occurred within
the limitations period, thus bringing the entire continuing violation within the
statute of limitations, and thus reverse and remand on this basis.
As McCall contends, the retaliatory creation of a hostile work environment
is a violation of the WPA. The Act forbids supervisors from taking “prohibited
personnel action or otherwise retaliat[ing] against an employee because of the
employee‟s protected disclosure.”5 A “„[p]rohibited personnel action‟ includes but
is not limited to: recommended, threatened, or actual termination, demotion,
suspension, or reprimand; involuntary transfer, reassignment, or detail; . . . or
retaliating in any other manner against an employee because that employee makes
a protected disclosure . . . .” D.C. Code § 1-615.52 (a)(5)(A) (emphasis added).
Thus, although the statute lists examples of discrete retaliatory acts, there are
5
D.C. Code § 1-615.53 (a).
11
catch-all provisions in both the general prohibition on retaliation (“or otherwise
retaliate”) and in the specific definition of a prohibited personnel action (“includes
but is not limited to . . . retaliating in any other manner”) that demonstrate a
legislative intent to forbid all retaliation against whistleblowers, regardless of the
method of punishment adopted by a whistleblower‟s superiors.
The very definition of a hostile work environment demonstrates that
retaliation in this form is not an insignificant matter. Lively, supra, 830 A.2d at
888 (“a plaintiff . . . has a viable hostile environment claim if [he] can demonstrate
(1) that [he] is a member of a protected class [here, whistleblowing employees as
defined by the WPA], (2) that [he] has been subjected to unwelcome harassment,
(3) that the harassment was based on membership in the protected class, and (4)
that the harassment is severe and pervasive enough to affect a term, condition or
privilege of employment.”). Furthermore, as the foregoing quotation demonstrates,
we have already applied the hostile work environment doctrine in the employment
discrimination context.6 Similarly, other courts have held that a retaliatory hostile
6
Lively, supra, 830 A.2d at 890; see also Crawford v. District of Columbia,
891 A.2d 216, 221 (D.C. 2006) (referring to federal employment discrimination
legislation as “comparable” to the WPA).
12
work environment may violate both state whistleblower protection statutes,7 and
the whistleblower protection provisions included within several federal statutes.8
Accordingly, we now hold that a hostile work environment—if created in response
to an employee‟s protected disclosure—constitutes retaliation in a form
contemplated and prohibited by D.C. Code § 1-615.53.
Having determined that a retaliatory hostile work environment is a violation
of the WPA, we now turn to address the application of the statute of limitations to
McCall‟s claim. D.C. Code § 1-615.54 (a)(2) requires plaintiffs to file “within 3
years after a violation occurs or within one year after the employee first becomes
aware of the violation, whichever occurs first.” As we know from case law
interpreting similar language in the employment discrimination context, a hostile
work environment, by its nature, is a continuing violation that “cannot be said to
occur on any particular day. It occurs over a series of days or perhaps years.”
Lively, supra, 830 A.2d at 891-92 (“A hostile work environment claim is
7
Bodman v. Maine, Dep’t of Health & Human Servs., 720 F. Supp. 2d 115,
126 (D. Me. 2010) (Maine); Cokus v. Bristol Myers Squibb Co., 827 A.2d 1173,
1185 (N.J. Super. Ct. Law Div. 2002) (New Jersey).
8
Sassé v. United States Dep’t of Labor, 409 F.3d 773, 782 (6th Cir. 2005)
(whistleblower protections in the Clean Air Act, Solid Waste Disposal Act, and
Federal Water Pollution Control Act); Williams v. Administration Review Bd., 376
F.3d 471, 477 (5th Cir. 2004) (whistleblower protections in the Energy
Reorganization Act).
13
comprised of a series of separate acts that collectively constitute one „unlawful
employment practice.‟”) (quoting Morgan, supra, 536 U.S. at 115, 124).9
Accordingly, “[a]ll of the component acts comprising the hostile work environment
claim need not have taken place within the one-year period . . . but at least one „act
contributing to the claim‟ must occur within that period in order for the filing to be
timely.” Id. (quoting Morgan, supra, 536 U.S. at 117). Thus, McCall would have
one year from the last act contributing to the hostile work environment to file his
claim for relief.
Based on our review of McCall‟s complaint, we conclude that McCall has
alleged sufficient facts to permit a finding that a retaliatory hostile work
environment extended into the limitations period.10 The alleged “campaign of
9
This is in direct contrast to “[a] discrete retaliatory or discriminatory act
[which] „occurred‟ on the day that it „happened.‟” Morgan, supra, 536 U.S. at
110.
10
As neither the trial court nor the parties before us have questioned
whether McCall made the requisite “[p]rotected disclosure,” we have no occasion
to address that question here. See D.C. Code § 1-615.52 (a)(6) (A “[p]rotected
disclosure” is “any disclosure of information . . . that the employee reasonably
believes evidences . . . [g]ross mismanagement . . . [a]buse of authority . . .
violation of a . . . law, rule, or regulation . . . or . . . [a] substantial and specific
danger to the public health and safety.”). As we indicated, however, McCall
prepared a standard statement setting forth in detail what happened on January 5,
2011, and he repeated his statement and complaints about what occurred on that
date to Lieutenant Villines and to Nicole Mason, an attorney with DCHA.
14
harassment” against McCall included an attempt to have an officer incriminate him
in the original mishandling of contraband, excessive scrutiny, unfounded
accusations that he was frequently late to work, isolation from the assistance of
other officers, and a death threat specifically linked to his whistleblowing activity.
Most significantly for statute of limitations purposes, McCall alleges that when the
harassment created physical and mental health problems that rendered him unfit to
work, Lieutenant Villines insisted that he return to work (despite a physician-
certified need to refrain), and refused to fill out employer-side worker‟s
compensation forms—a refusal which, it can be inferred, persisted through
McCall‟s termination on October 21, 2011.11 Because McCall filed suit on
October 19, 2012, Villines‟s insistence that he work and refusal to assist him in
11
McCall cannot recover for discrete acts of retaliation (such as his
suspension and termination) under the rubric of a hostile environment claim.
Morgan, supra, 536 U.S. at 110 (because “a discrete retaliatory or discriminatory
act „occurred‟ on the day that it „happened,‟” the statute of limitations runs from
“the date of the act.”); see also id. at 114-15 (distinguishing between “[d]iscrete
acts such as termination,” and “[h]ostile environment claims”); Sassé, supra note
8, 409 F.3d at 783 (“[plaintiff‟s] May 2000 suspension was a discrete act that
cannot properly be characterized as part of a continuing hostile work
environment”). However, these discrete violations of the statute are available as
“background evidence” for his hostile environment claim. Morgan, supra, 536
U.S. at 113 (“an employee [may use] the prior acts as background evidence in
support of a timely claim”); Porter v. Cal. Dep’t of Corr., 419 F.3d 885, 893 n.4
(9th Cir. 2005) (“discrete acts still may be considered for purposes of placing non-
discrete acts in the proper context”); Huynh v. Damota, 61 F. App‟x 976, 978 n.4
(7th Cir. 2003).
15
obtaining allegedly deserved worker‟s compensation plausibly constitutes a
retaliatory act “comprising the hostile work environment claim” within the
statutory period. See Lively, supra, 830 A.2d 874, 891. Although the fact-finder
might eventually determine that McCall has “failed to identify an act of
discrimination with which to anchor his hostile work environment claim” within
the limitations period, Sassé, supra, 409 F.3d at 783, at this stage his complaint
contains “sufficient facts to establish the elements of a legally cognizable claim.”
Woods, supra, 63 A.3d at 552-53. Accordingly, we reverse and remand for further
proceedings on McCall‟s claim that he was subjected to a hostile work
environment in violation of the WPA.
2. Termination As A Discrete Act
McCall‟s suit was dismissed in its entirety because the trial court reasoned
that “any claim plaintiff may have had under the WPA started to accrue the first
time defendants allegedly took prohibited personnel action,” and McCall had failed
to file his complaint within a year of April 5, 2011, the day he was placed on
administrative leave. Regardless of whether McCall‟s hostile work environment
claim succeeds, his termination must be considered as a discrete violation of the
WPA, not as part of his hostile work environment claim. Morgan, supra, 536 U.S.
16
at 110-15 (distinguishing between “[d]iscrete acts such as termination,” and
“[h]ostile environment claims”); Sassé, supra note 8, 409 F.3d at 783
(“[plaintiff‟s] May 2000 suspension was a discrete act that cannot properly be
characterized as part of a continuing hostile work environment”). Accordingly, we
proceed to consider McCall‟s second claim: that his termination—as a discrete
violation of the statute—independently triggers the statute of limitations.12 Three
considerations lead us to agree with McCall‟s interpretation: (1) the wording of
the statute, which clearly ties both civil actions and the limitations period to “a
violation” of the statute, D.C. Code § 1-615.54 (a), thus allowing for the possibility
of multiple violations being claimed in a single suit; (2) the remedial purpose of
the WPA, clearly articulated in D.C. Code § 1-615.51, and (3) the nature of this
case, which exemplifies how several violations of the WPA might occur in an
escalating string of retaliatory personnel actions.
(a) Statutory Text
Any “employee aggrieved by a violation” of the WPA‟s prohibitions set
forth in D.C. Code § 1-615.53 may bring a civil action against those responsible,
12
Of course, our holding that each violation of the WPA triggers the statute
of limitations anew applies with equal force to hostile work environment claims.
17
and must file that action “within 3 years after a violation occurs or within one year
after the employee first becomes aware of the violation, whichever occurs first.”
D.C. Code § 1-615.54 (a)(1)-(2). The emphasis of this language is on the date that
“a violation” occurs. D.C. Code § 1-615.54 (a). The Council‟s use of the phrase
“a violation” is significant: because the statute can be violated by numerous types
of “prohibited personnel action,”13 the statute contemplates that multiple violations
can occur, and allows a civil action based on a single violation. We conclude that
failure to file suit within a year of one violation does not preclude filing suit based
on subsequent violations.14
This conclusion finds support in federal case law interpreting the same
provision of the D.C. Code. In Clayton, supra note 3, 931 F. Supp. 2d at 204, the
U.S. District Court for the District of Columbia held that Ms. Clayton‟s WPA
claim was not untimely, even though her claim was based on a reclassification
decision of which she had received notice by letter thirteen months earlier. The
13
D.C. Code § 1-615.52 (a)(5)(A) (“„Prohibited personnel action‟ includes
but is not limited to: recommended, threatened, or actual termination, demotion,
suspension, or reprimand; involuntary transfer, reassignment, or detail; referral for
psychiatric or psychological counseling; failure to promote or hire . . . .”).
14
See Morgan, supra, 536 U.S. at 114 (2002) (“Each incident of
discrimination and each retaliatory adverse employment decision constitutes a
separate actionable unlawful employment practice.”) (internal quotation marks
omitted).
18
reclassification placed Ms. Clayton in a category of employees terminable at will,
and made her vulnerable to the termination that followed shortly thereafter. Id. at
199. Because Ms. Clayton asserted that she did not learn that the reclassification
was retaliatory until her termination became effective, and she filed her complaint
less than one year after learning that fact, the court held that her claim based on the
reclassification that occurred in September of 2010, thirteen months prior to the
filing of the complaint, “was not filed untimely.” Id. at 204. This was true even
though Ms. Clayton had received whistleblowing-related “termination threats in
June or July 2009, January 2010, and September 2010,” and “threatened . . .
termination” based on an employee‟s “protected disclosure” constitutes an
actionable violation of the WPA. See id. at 198; D.C. Code § 1-615.52 (a)(5)(A).
Thus, Clayton supports the straightforward reading of the statute that McCall
desires. Because the limitations period begins to run from the date that “a
violation” occurs or from the date that an employee becomes “aware” of it, each
subsequent violation triggers the statute anew with respect to the subsequent
violation.15 D.C. Code § 1-615.54 (a). Accordingly, failure to file an action within
15
Although McCall also argues that the “campaign of harassment” he
suffered should be considered a single prohibited personnel action, his alternative
argument is that “[e]ven if the Superior Court was correct in determining that all
(continued . . .)
19
the limitations period for one violation does not make District agencies and their
employees immune from suit with respect to all subsequent violations. Such a
reading would conflict with the text and purpose of the statute.
(b) Statutory Purpose
Allowing a civil suit based on any particular violation of the WPA, along
with a distinct corresponding limitations period for each violation, is not merely
consistent with the text of the statute, it is also in accord with its declared policy:
effective protection for whistleblowers. D.C. Code § 1-615.51. The Act‟s initial
“declaration of purpose” states 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.” Id. It goes on to list the goals of the Act in great detail, declaring it to be
the Council‟s “policy to . . . [e]nhance the rights of District employees to challenge
____________________________________
(. . . continued)
actions prior to October 19, 2011[] would be untimely, there is no basis for
dismissing as untimely [claims based upon] acts which did not occur until after that
date. . . . [T]he statute clearly enumerates termination as a separate discrete
personnel action, which is prohibited if taken in retaliation for protected activity.”
For the reasons given in the text, both the governing language and stated purpose
of the WPA lead us to the conclusion that McCall‟s alternative argument is correct.
20
the actions or failures of their agencies and to express their views without fear of
retaliation . . . [and] [e]nsure that rights of employees to expose corruption,
dishonesty, incompetence, or administrative failure are protected.” Id.
The history of the statute evinces a consistent legislative intent to expand
and secure protections for whistleblowers. The Council‟s declaration of purpose
has remained substantially unchanged since the time that whistleblower protections
were originally enacted as part of the Comprehensive Merit Personnel Act of 1978.
Compare D.C. Code § 1-345.1 (1980 Supp.), with D.C. Code § 1-615.51 (2012
Repl.). However, these original protections made it unlawful only to retaliate
“against subordinate employees appearing as witnesses before the Council,” and
employees could initiate a civil action only after “the Corporation Counsel
decline[d] to prosecute” their case. D.C. Code § 1-345.3 (a), (f) (1980 Supp.).
To address these limitations, the Whistleblower Amendment Act of 1998
expanded the 1978 protections, declaring “that the public interest is served when
employees of the District government are free to report waste, fraud, abuse of
authority, [or] violations of law . . . without fear of retaliation or reprisal.” D.C.
Code § 1-616.11 (1999 Repl.). The 1998 amendments introduced the current
definitions for “protected disclosure” and “prohibited personnel action,” and
21
allowed “[a]n employee aggrieved by a violation” of the statute to “bring a civil
action . . . seeking relief and damages.” D.C. Code §§ 1-616.12-.14 (1999 Repl).
Along with this cause of action, the Council introduced a one year statute of
limitations, applicable from the date that “a violation occurs or . . . the employee
first becomes aware of the violation.” D.C. Code § 1-616.14 (a) (1999 Repl.).
In 2009, however, the Council found that “District employees continue to be
subject to retaliation when they report government misconduct,” and that “[w]orse,
many District employees remain silent despite the existing protections, because
those protections do not go far enough.” D.C. Council, Report on Bill 18-233 at 2
(Nov. 9, 2009) [hereinafter 2009 Committee Report]. Certain rulings by federal
judges had, in the Council‟s view, “diminished the law‟s efficacy” by holding that
plaintiffs were required by statute to provide notice of injury within six months,16
and that no implied right of action existed against supervisors.17 Id. at 3. The
Whistleblower Protections Amendment Act of 2009 addressed these “judicially
created gaps,” id. at 4, by “eliminat[ing] the requirement . . . that plaintiffs provide
16
Winder v. Erste, 566 F.3d 209, 213-14 (D.C. Cir. 2009) (applying D.C.
Code §§ 1-615.54 (a), 12-309 (2006)).
17
Tabb v. District of Columbia, 477 F. Supp. 2d 185, 189 (D.D.C. 2007)
(applying D.C. Code § 1-615.54).
22
notice of claims to the District of Columbia within six months of their injury,” and
expressly providing for a right of action against supervisors and other D.C.
employees. Bowyer v. District of Columbia, 779 F. Supp. 2d 159, 162, 165
(D.D.C. 2011) (noting that the Council ended the six-month notice requirement “to
ensure that WPA claims were not unnecessarily barred by technical
requirements”); see also 2009 Committee Report at 7.
The 2009 Act also extended the limitations period from one year to three
years for undiscovered violations, in order to “reduce the likelihood that a
whistleblower‟s case would be dismissed on procedural grounds while avoiding
the possibility of stale claims.” 2009 Committee Report at 6-7. These changes
indicate a legislative desire, consistent throughout the history of the statute, to
protect whistleblowers from retaliation.
By contrast, requiring whistleblowers to be vigilant to file suit as soon as
their employer takes the first in a series of what the employee has reason to believe
to be retaliatory actions would have the opposite effect. Some whistleblowers
would be forced to choose between filing quickly—with any number of potentially
23
adverse consequences18—or risk losing their cause of action entirely despite later
being fired or otherwise retaliated against in a more unequivocal manner. This
would not “[e]nsure that rights of employees to expose corruption, dishonesty,
incompetence, or administrative failure are protected,” or even come close to
“[m]otivat[ing] employees to do their duties justly and efficiently.” D.C. Code
§ 1-615.51. Instead, corrupt or incompetent city employees would be motivated to
punish whistleblowers through subtle though discernable violations of the statute,
thus triggering the one-year statute of limitations, while saving for later periods
more major retribution, for which they would face no civil liability. The most
significant cost would be the loss of information that might otherwise be reported.
As the Council succinctly put it, “[r]etaliation deters future whistleblowing.” 2009
Committee Report at 3.
Reading the statute of limitations as applying to each violation is not only
the most natural reading of the statutory text, but it is also consistent with the
statute‟s declared purposes: effective protection for whistleblowers. Consistent
18
For example, some whistleblowers thus pressured might file WPA suits
over petty or borderline violations of this anti-retaliation statute, thus straining
already fragile workplace relationships, and risking the expenses of litigation over
undeveloped workplace disputes.
24
with that purpose, it “ensure[s] that WPA claims [are] not unnecessarily barred by
technical requirements.” Bowyer, supra, 779 F. Supp. 2d at 165.
(c) Application to the Facts
The April 5, 2011, events leading up to and including McCall‟s placement
on administrative leave certainly constituted a violation of the WPA.19 However,
later actions by DCHA and other defendants can reasonably be viewed as further
discrete violations of the WPA, and McCall‟s termination, of which he was not
apprised until November 2011, certainly can be so viewed. D.C. Code § 1-615.52
(a)(5)(A) (“„Prohibited personnel action‟ includes . . . actual termination.”). The
fact that McCall was “aware” that his placement on administrative leave was
retaliatory would start the statute of limitations clock with respect to only that
violation. D.C. Code § 1-615.54 (a). To the extent that McCall‟s suit is based
upon renewed violations of the WPA, and is brought within one year of the time he
19
Seeking to silence McCall by placing him on administrative leave for a
phony impersonating-an-officer investigation, as alleged, would satisfy the
definition of a “prohibited personnel action,” which includes “recommended,
threatened, or actual . . . suspension, or reprimand . . . or retaliating in any other
manner against an employee because that employee makes a protected disclosure.”
D.C. Code § 1-615.52 (a)(5) (“„Retaliating‟ includes conducting . . . an
investigation of an employee . . . because of a protected disclosure.”).
25
became aware of those subsequent violations, his suit is not barred by the statute of
limitations. Id.
Conclusion
Taking the allegations of the complaint as true, McCall has suffered two
distinct violations of the WPA not barred by the statute of limitations: a hostile
work environment extending into the limitations period, and the termination of his
employment. Accordingly, the order dismissing Count I of the complaint is
reversed. We remand the case for further proceedings consistent with this opinion.
So ordered.