Ukwuani v. DC ( 2020 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 17-CV-989
GODWIN UKWUANI, APPELLANT,
V.
DISTRICT OF COLUMBIA,
MELINDA BOLLING,
and
LYNN UNDERWOOD, APPELLEES.
Appeal from the Superior Court
of the District of Columbia
(CAB-6886-15)
(Hon. Jennifer A. DiToro, Trial Judge)
(Argued October 8, 2019 Decided November 19, 2020)
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.
GLICKMAN, Associate Judge: Appellant Godwin Ukwuani, a Nigerian-born,
African American male, was terminated from his employment at the District of
2
Columbia Department of Regulatory Affairs (DCRA) in June 2015. Following his
termination, Mr. Ukwuani sued appellees—the District of Columbia, his former
DCRA Director Melinda Bolling, and his former supervisor, Lynn Underwood—in
Superior Court for violations of the District of Columbia Human Rights Act
(HRA) 1 and the District of Columbia Whistleblower Protection Act (WPA). 2
Appellant alleged that, during his tenure at DCRA, he was reprimanded by Mr.
Underwood and ultimately fired by Ms. Bolling because of his race and national
origin, and in retaliation for his having complained about unlawful discrimination
at DCRA and gross mismanagement and substantial and specific dangers to public
safety. He also alleged that appellees had subjected him to a hostile work
environment because of his race and national origin. The trial court granted
summary judgment to appellees on all of these claims.
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
1
D.C. Code §§ 2-1401.01–1404.04 (2016 Repl. & 2020 Supp.).
2
D.C. Code § 1-615.51 et seq. (2016 Repl.).
3
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.
Our independent review of the record persuades us that appellant’s
arguments are not well taken, and that the trial court properly granted summary
judgment to appellees on all his causes of action. We affirm the entry of judgment
for appellees.
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
4
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.
5
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
3
As Director Bolling explained in her deposition testimony, “the decision
was that the job you’re performing [in the POD] is plan review and not
engineering. You’re not designing anything. You’re reviewing plans that have
already been designed by a design professional licensed in the District, and you’re
confirming that they comply with the code that’s in effect. But we can’t have you
redesigning work from a licensed professional in the industry.”
4
The ICC has promulgated model construction codes, ten of which the
District has incorporated into its building code. See 12 DCMR § 101A.
6
American man with a lengthy tenure at the POD and an engineering degree.
Bolling made the hiring decision after a review panel found both applicants highly
qualified and eligible to fill the position in light of their high review scores. 5
Bolling chose Englebert over Johnson, she said, because of Englebert’s code
review background and superior code review qualifications.
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.
5
In the hiring process, Mr. Johnson received an “applicant score” of 98 and
Mr. Englebert received a score of 96; these exceeded the scores of the other
applicants. Nothing in the record discloses what the two-point difference between
the high scores was based on, or suggests that the difference was significant.
7
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
8
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 the
differences in grade, and if it turns out that the difference in grade is a color
difference as well, I don’t know.”
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
9
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.
6
On April 27, 2015, Sabbakhan forwarded the POD plan reviewers’ 2013
complaint letter to Underwood, with the message “FYI.”
10
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
11
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 applications in 2015, and appellant’s recalcitrance in a
fourth such instance was the impetus for Bolling’s decision to terminate him.
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
12
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
13
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 he could take the matter up with Underwood. Peterson did so, and
Underwood agreed with him rather than with appellant. Later that afternoon,
Peterson again attempted to secure appellant’s approval of the plan with
14
Underwood’s support. The three men discussed the issue in person, and appellant
continued to insist that a separate HVAC system was required. In response,
Underwood yelled at appellant and stated that nothing in the building code
required the design change. This argument took place in an open space within the
POD, and several other employees heard it. Appellant eventually approved the
plan after his “further assessment determined that the design (arrangement) would
be adequate.”
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”
15
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
7
Bolling testified that this was not the only instance in which she
terminated a manager at the DCRA on account of a “customer” complaint. On a
later occasion, she did it again; in that instance, the manager was white.
16
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 or conclusory are “insufficient to establish a genuine issue of material
fact to defeat the entry of summary judgment.” 11
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] . . .
8
Hollins v. Fed. Nat’l Mortg. Ass’n, 760 A.2d 563, 570 (D.C. 2000)
(citation and quotation omitted).
9
Cain v. Reinoso, 43 A.3d 302, 307 (D.C. 2012).
10
Vogel v. District of Columbia Office of Planning, 944 A.2d 456, 464
(D.C. 2008) (citations and quotations omitted).
11
Beard v. Goodyear Tire & Rubber Co., 587 A.2d 195, 198 (D.C. 1991).
17
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, non-discriminatory 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 non-
discriminatory 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 non-discriminatory reason
12
D.C. Code § 2-1402.11(a)(1)(A) (2016 Repl. & 2020 Supp.).
13
411 U.S. 792 (1973); see Hollins, 760 A.2d at 571.
14
Furline v. Morrison, 953 A.2d 344, 352-53 & n.24 (D.C. 2008) (“Broadly
speaking, to state a prima facie claim of disparate treatment discrimination, the
plaintiff must establish that (1) she is a member of a protected class; (2) she
suffered an adverse employment action; and (3) the unfavorable action gives rise to
an inference of discrimination.” (internal quotation marks omitted)).
15
Id. at 353 (quoting Hollins, 760 A.2d at 571).
18
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,
non-discriminatory 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
16
Id. at 353.
17
Id. at 354.
19
appellees’ stated rationale was pretextual and that this showing of “pretext” was
enough to permit a jury to infer that the real reason for his termination was
discriminatory. Second, he contends that the court ignored circumstantial evidence
that Underwood and Bolling harbored a racial bias against him. Neither of these
contentions persuades us that a jury could properly find that Bolling terminated
appellant for a discriminatory reason based, in whole or in part, on his race or
national origin.
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
18
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148 (2000)
(emphasis added).
20
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
21
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 evidence that could lead a reasonable jury to conclude that
appellees are “making up or lying about the underlying facts that formed the
predicate for the employment decision.” 20
Furthermore, appellant also has not proffered other evidence from which a
jury fairly could infer that the real motivations behind his termination included
19
Compare Walker v. Johnson, 798 F.3d 1085, 1094 (D.C. Cir. 2015)
(employee’s own assessment of her performance insufficient to raise a disputed
issue of fact as to whether employer’s justification for termination was false) and
Cain, 43 A.3d at 315 (employee unable to show a triable issue of fact as to whether
the employer’s judgments of her performance were pretextual where the employee
did not meaningfully dispute the facts underlying the employer’s assessment) with
Estenos v. PAHO/WHO Fed. Credit Union, 952 A.2d 878, 893-94 (D.C. 2008)
(plaintiff raised a factual dispute as to employer’s stated rationale that he
terminated the plaintiff due to his lack of English language proficiency through
evidence showing (1) it was unclear that English proficiency was actually a job
requirement and (2) his English was not deficient). Of course, if appellant had
provided evidence to eliminate either of appellees’ asserted justifications for his
termination, “discrimination may well be the most likely alternative explanation;”
but that is not the case here. Reeves, 530 U.S. at 147.
20
Brady v. Office of Sergeant at Arms, 520 F.3d 490, 495 (D.C. Cir. 2008).
22
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.
21
Appellant’s contrary argument, made for the first time in his reply brief,
that the trial court ignored evidence that Bolling displayed a willingness to
discriminate when she encouraged Mr. Englebert, a white man, to apply for and
ultimately selected him as DCRA’s Chief Structural Engineer, does not persuade
us of a triable issue of fact. While a decision maker’s prior discriminatory acts can
be used as “background evidence in support of a [discrimination] claim,” Nat’l
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002), there is no evidence
that Englebert’s selection had to do with his race rather than his significant code
review experience.
22
See Furline, 953 A.2d at 355-56.
23
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.
23
Ash v. Tyson Foods, Inc., 546 U.S. 454, 456 (2006).
24
Second, appellant cites Underwood’s criticism of him for expressing and
supporting the complaints and concerns of the engineers whom he supervised as
evidence of bias. This is not, however, a case in which a jury reasonably could
draw the inference that Underwood harbored discriminatory attitudes and animus
against appellant for his advocacy on behalf of a protected class. 24 The nub of the
dispute was the agency’s shift away from design review to focus on expeditious
code compliance, for reasons and with consequences unrelated to the employees’
membership in a protected class, and appellant’s perceived failure, in his role as a
manager, to support the agency’s (and not his subordinates’) objectives. There is
no evidence that Underwood would have responded differently to appellant’s
support of his employees had those employees been white, and notably, no
witness-employee in this case perceived Underwood’s management as racially or
otherwise biased.
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
24
See, e.g., Ramsey v. Am. Air Filter Co., 772 F.2d 1303, 1310 (7th Cir.
1985) (notation on black plaintiff’s job application that he was arrested for
marching in a civil rights demonstration was probative evidence of employer’s
discriminatory intent).
25
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 finder 27),
this is a case in which summary judgment is appropriate, because appellant has
failed to present even circumstantial evidence of discrimination.
25
Howard Univ. v. Green, 652 A.2d 41, 45-46 (D.C. 1994) (“[E]mployment
practices such as cronyism and favoritism are not actionable under anti-
discrimination statutes such as the HRA.”).
26
Hollins, 760 A.2d at 570-71.
27
In re Estate of Corriea, 719 A.2d 1234, 1243 (D.C. 1998).
26
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 on or related to appellant’s protected class status.
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
28
Nicola v. Washington Times Corp., 947 A.2d 1164, 1173 (D.C. 2008).
29
Vogel, 944 A.2d at 463 & n.12 (citing D.C. Code §§ 2-1402.11(a), 2-
1402.61(a) (2001) and noting that this court has “construed [those] statutory
provisions to guarantee employees the same protection from retaliation as is
provided by the so called ‘opposition clause’ in Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e-3(a) (2007)”).
27
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
30
See Green, 652 A.2d at 45.
31
Carter-Obayuwana v. Howard Univ., 764 A.2d 779, 790 (D.C. 2001).
32
Green, 652 A.2d at 46; see also Propp v. Counterpart Int’l, 39 A.3d 856,
863 (D.C. 2012) (“An employee is protected from retaliation even if the
employer’s conduct alleged to be discriminatory is lawful, so long as the employee
reasonably believed the employer’s action was discriminatory.”)
33
Green, 652 A.2d at 46; see also Vogel, 944 A.2d at 464 (“It is not enough
for an employee to object to favoritism, cronyism, violation of personnel policies,
or mistreatment in general, without connecting it to membership in a protected
class, for such practices, however repugnant they may be, are outside the purview
of the HRA.”).
28
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
34
Furline, 953 A.2d at 353.
35
See supra notes 16 & 17 and accompanying text.
36
At oral argument in this appeal, appellant identified his June 11, 2015
email communication to Bolling and Sabbakhan regarding Underwood’s treatment
of him during the Peterson incident as a fourth protected activity for purposes of
his retaliation claim. Out of fairness to the appellee, we generally do not consider
(continued…)
29
First, appellant contends that the evidence at summary judgment showed that
he “implicitly complained of race and national origin discrimination” at DCRA
when he and other foreign-born GS-12 plan reviewers objected in 2013 to the
proposed GS-13 “inspector” position. The record, however, demonstrates that the
GS-12 reviewers, including appellant, did not even implicitly lodge a complaint
that the new position was unlawfully discriminatory. It is true that several GS-12
reviewers said in their depositions that there was a racial difference between them
and the GS-13 “inspectors.” But no reviewer testified that this difference was the
subject of a complaint. As one reviewer testified, he “d[id]n’t remember saying
. . . [or] participating in . . . a complaint about Caucasian and non-Caucasian . . . as
such, but we’ve complained about the differences in grade.” And appellant, in his
own deposition, described the qualifications of the GS-13 position as unfair to him
and the other GS-12 reviewers because they required an ICC certification and did
not privilege their advanced degrees. The letter the reviewers sent is consistent
with this view.
(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.
30
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,
37
Vogel, 944 A.2d at 465 (employee could not show a protected activity
where she did not link her lower pay in comparison to newly hired employees to a
difference in their ages); cf. McFarland v. George Washington Univ., 935 A.2d
337, 360 (D.C. 2007) (doubting that an employee’s letter voicing “general
dissatisfaction with the fact that he was passed over for [a] promotion” was a
protected activity, though affirming award of summary judgment to employer on
other grounds).
31
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
can help establish a genuine issue of material fact, 39 not every interrogatory answer
is created equally. Several circuits do not even consider interrogatory answers
based “upon information and belief” when ruling on summary judgment motions,
because they do not meet the requirement under Fed. R. Civ. P. 56(c)(4) that
affidavits submitted in opposition to summary judgment must “be based on
38
Vogel, 944 A.2d at 464; cf. Thompson v. Int’l Ass’n of Machinists &
Aerospace Workers, 614 F. Supp. 1002, 1008, 1012 (D.D.C. 1985) (evidence at
trial sufficient to prove that employee engaged in a protected activity for purposes
of HRA retaliation claim where she advocated for an “increase in appointments of
blacks and women to high-level positions”).
39
Super. Ct. Civ. R. 56(c)(1)(A) (“A party asserting that a fact cannot be or
is genuinely disputed must support the assertion by: . . . citing to particular parts of
materials in the record, including . . . interrogatory answers, or other
materials[.]”); Smith v. WMATA, 631 A.2d 387, 391 (D.C. 1993).
32
personal knowledge.” 40 We can look to these circuits for guidance in interpreting
our local rule, Super. Ct. Civ. R. 56(c)(4), given that it is identical to its federal
counterpart. 41 This not to say that we will not consider appellees’ interrogatory
answer. After all, it might be admissible against the defendants at trial as the
admission of a party-opponent. 42 But admissible evidence is not necessarily
sufficient evidence; “[t]he mere existence of a scintilla of evidence in support of
the plaintiff’s position will be insufficient to defeat a motion for summary
judgment.” 43
40
See Estate of Gustafson ex rel. Reginella v. Target Corp., 819 F.3d 673,
677 n.4 (2d Cir. 2016); Pace v. Capobianco, 283 F.3d 1275, 1278-79 (11th Cir.
2002) (citing cases in other circuits); see also Jameson v. Jameson, 176 F.2d 58, 60
(D.C. Cir. 1949) (“Belief, no matter how sincere, is not equivalent to
knowledge.”).
41
McAllister v. District of Columbia, 653 A.2d 849, 853 n.9 (D.C. 1995);
see also Cormier v. District of Columbia Water and Sewer Auth., 959 A.2d 658,
664 (D.C. 2008) (“[W]e think that Super. Ct. Civ. R. 56 should be construed
consistently with its federal counterpart.”).
42
Importantly, however, that does not mean the admission would be
conclusive of the issue or irrebuttable. See, e.g., Chaabi v, United States, 544 A.2d
1247, 1249 (D.C. 1988) (explaining that the party-opponent is entitled to “ample
opportunity” at trial to deny or explain the admission (quoting MCCORMICK ON
EVIDENCE § 37, at 81 (3d ed. 1984)).
43
Smith & H. v. Swick & Shapiro, P.C., 75 A.3d 898, 902 (D.C. 2013) (quoting
Aziken v. District of Columbia, 70 A.3d 213, 218 (D.C. 2013)).
33
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
44
Appellant does not attempt to connect this complaint to his termination,
but argues that, at least partly in response to this activity, Underwood issued the
Letter of Counsel against him. Because we conclude that appellant’s objection to
Englebert’s hiring is not a protected activity, we express no view on the separate
question whether the Letter was a materially adverse action under the HRA.
34
undisputed that appellant told Underwood he believed Johnson was more qualified
for the position and that he thought the selection of Englebert was an instance of
racial discrimination. Appellees argue, however, that this was not protected
activity because the record shows that appellant did not have a reasonable good
faith belief that discriminatory hiring occurred, and the point was not in material
dispute. We agree with appellees on this point.
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
45
See, e.g., Green, 652 A.2d at 46; Moyo v. Gomez, 40 F.3d 982, 984 (9th
Cir. 1994) (“An erroneous belief that an employer engaged in an unlawful
employment practice is reasonable, and thus actionable . . . , if premised on a
mistake made in good faith. A good-faith mistake may be one of fact or of law.”);
Rucker v. Higher Educ. Aids Bd., 669 F.2d 1179, 1182 (7th Cir. 1982) (“[I]t is
good faith and reasonableness, not the fact of discrimination, that is the critical
inquiry in a retaliation case.”); Parker v. Balt. & Ohio R. Co., 652 F.2d 1012, 1019
(D.C. Cir. 1981).
35
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
46
Parker, 652 F.2d at 1019.
47
Cf. Brown v. Nat’l Acad. of Sciences, 844 A.2d 1113, 1123 (D.C. 2004)
(employees will make out a prima facie case of discrimination in hiring if they can
show (1) they belong to a protected class; (2) they were qualified for the position;
(3) their “failure to be hired occurred despite [their] employment qualifications;”
and (4) the decision not to hire them was based on their protected class status).
36
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 policy decision made to address a serious deficiency in the POD’s
performance of its main function. Appellant has pointed to no evidence to the
contrary. And appellant clearly knew that DCRA officials, including Bolling,
believed code review experience was critical and that engineering skills were
secondary. They had been emphasizing that policy for years; it was, after all, the
subject of appellant’s 2013 complaint about the GS-13 plan reviewer position—he
disagreed with Bolling and Sabbakhan’s view then that the POD needed reviewers
with ICC certifications more than it needed them to have engineering degrees. In
other words, appellant was aware that there was a legitimate, sufficient, non-
37
discriminatory reason for Englebert’s selection, and the record does not show that
appellant had a basis to dismiss that reason as pretextual. 48
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
48
Indeed, appellant proffered no evidence, other than his own unsupported
opinion, that engineering degrees really were more valuable in the plan reviewer
role than other qualifications, which conceivably might have lent support to a
reasonable belief that Bolling had made up a pretextual basis for hiring Englebert.
See, e.g., Estenos, 952 A.2d at 893-94 (factual dispute regarding job qualifications
created a triable issue of fact on whether a termination was pretextual). Nor did
appellant argue to his employer that their preference for applicants with ICC
certifications disproportionately excluded non-white or foreign born applicants,
which might have supported a reasonable belief that DCRA’s hiring policy had an
unlawful disparate impact on those applicants, see, e.g., Ricci v. DeStefano, 557
U.S. 557, 578 (2009) (“Under the disparate-impact [theory] a plaintiff establishes a
prima facie violation by showing that an employer uses a particular employment
practice that causes a disparate impact on the basis of” a protected class.), and
there are no facts in the record to suggest this was the case.
38
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 conclude
49
At least one circuit has held that information not known to the employee
cannot support the reasonableness of an employee’s belief of employer
misconduct. Clover v. Total System Services, Inc., 176 F.3d 1346, 1352 (11th Cir.
1999) (analyzing a Title VII retaliation claim). We need not reach that issue in this
case.
39
there is insufficient evidence that appellant reasonably believed the hiring of
Englebert violated the HRA for his retaliation claim to survive summary judgment.
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
50
D.C. Code § 1-615.51 (2016 Repl.).
51
Wilburn v. District of Columbia, 957 A.2d 921, 924 (D.C. 2008).
40
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
52
D.C. Code § 1-615.52(a)(6) (2016 Repl.).
53
See Freeman v. District of Columbia, 60 A.3d 1131, 1143 (D.C. 2012);
Johnson (Nancy) v. District of Columbia, 225 A.3d 1269, 1276 (D.C. 2020)
(“Plaintiffs . . . must show that they had a reasonable and genuine
contemporaneous belief that the actions they disclosed rose to the level of
seriousness required under the DCWPA.”).
41
(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 that approving construction
permits in those instances without first requiring design or other changes meant
approving plans with dangerous flaws and prevented the department from
resolving code violations before construction on a project began.
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
42
[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
54
Freeman, 60 A.3d 1131, 1151 (D.C. 2012) (quoting Zirkle v. District of
Columbia, 830 A.2d 1250, 1259-60 (D.C. 2003) (alterations omitted). This court
adopted the “disinterested observer test” from federal authorities interpreting the
“similarly worded” federal WPA. See Zirkle, 830 A.2d at 1260 n.13.
55
Freeman, 60 A.3d at 1152.
56
Id. (emphasis in original).
57
Johnson (Nancy), 225 A.3d at 1276.
43
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 identified in the review. This was a policy about
58
Appellant raises the additional argument that the basement needed a
separate ventilation system according to District law. He has cited no law or
regulation to us indicating that is the case, and both his supervisor and Peterson
clearly disagreed with his interpretation. On this record, the dispute appears to be
nothing more than a “[d]ebatable difference[] of opinion,” and thus does not rise to
the level of a protected disclosure. District of Columbia v. Poindexter, 104 A.3d
848, 855 (D.C. 2014).
59
These complaints stand in marked contrast to the authorities appellant
cites as support for his contention that he made protected disclosures about the
safety and soundness of POD’s permitting policies. In those cases, plaintiffs raised
specific complaints about the “serious and potentially life-endangering problems”
with a manager’s response to a fire, see Coleman v. District of Columbia, 794 F.3d
49, 58 (D.C. Cir. 2015), or reported such waste of funds that a jury could conclude
that a District project was “just burning money,” see Williams v. Johnson, 776 F.3d
865, 871 (D.C. Cir. 2015).
44
which reasonable people can disagree; in fact, appellees argue that the policy is
consistent with that of other jurisdictions. A mere policy disagreement with an
agency or supervisor is not enough to show either gross management or a
substantial and specific danger to public safety; an employee “must disclose such
serious errors by the agency that a conclusion that the agency erred is not debatable
among reasonable people.” 60 Appellant’s “purely subjective perspective” on the
agency’s permitting process is insufficient for a reasonable jury to conclude that he
made a protected disclosure under the WPA. 61
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
60
Johnson (Nancy), 225 A.3d at 1275 (quoting Wilburn, 957 A.2d at 925).
61
Poindexter, 104 A.3d at 858 (quoting Zirkle, 830 A.2d at 1260).
45
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.
62
As discussed above, there is no record support for appellant’s claim that
his opposition to the GS-13 position was a protected disclosure because it raised an
issue of disparate treatment of POD reviewers based on their national origin. And
appellant’s email stating that he was “somehow uncomfortable” with a
(continued…)
46
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 evidence that the Letter of Counsel
(given to appellant on April 13, 2015), appellant’s termination (which occurred
two months later), or any other reprimand by Underwood bore any relation to
appellant’s 2013 advocacy.
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
(continued…)
supervisor’s directive to approve a particular permit application was in all
likelihood too vague to alert its addressee that appellant believed there was gross
mismanagement or a substantial and specific danger to public safety.
63
See Freeman, 60 A.3d at 1144-45 (noting that “while the temporal
proximity of an adverse personnel action to a protected disclosure may lend
support to an inference of a causal relationship, ‘a stretch of over two years
realistically cannot constitute temporal proximity in the ordinary sense of that
phrase’”) (quoting Johnson (Michelle) v. District of Columbia, 935 A.2d 1113,
1120 (D.C. 2007)).
64
See, e.g. Freeman, 60 A.3d at 1144 (no causal connection between
alleged retaliatory act and alleged disclosure, because the disclosure took place
(continued…)
47
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.
(continued…)
after the agency action); Williams v. Johnson, 701 F. Supp. 2d 1, 20 (D.D.C. 2010)
(awarding summary judgment to the District on a WPA claim because the plaintiff
failed to present evidence that it knew of her meeting with a D.C. Councilmember
regarding alleged retaliatory acts the District took after she testified before the
Council).
65
Vogel, 944 A.2d at 464 (D.C. 2008) (citations and quotations omitted).