Sharma v. District of Columbia ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
RAMESH SHARMA, )
)
Plaintiff, )
)
v. ) Civil Action No. 10-1033 (GK)
)
DISTRICT OF COLUMBIA, )
)
Defendant. )
______________________________)
MEMORANDUM OPINION
Plaintiff, Ramesh Sharma, a former employee of the District of
Columbia Office of Contracting & Procurement (“OCP”), brings this
action against Defendant, District of Columbia, for retaliation in
violation of the D.C. Whistleblower Protection Act (“DCWPA”), D.C.
Code § 1-615.51 et seq., and the federal False Claims Act (“FCA”),
31 U.S.C. § 3730. This matter is presently before the Court on
Defendant’s Motion to Dismiss under Federal Rule of Civil Procedure
12(b)(6). Upon consideration of the Motion, Opposition, Reply, and
the entire record herein, and for the reasons set forth below, the
Motion to Dismiss is denied in its entirety.
I. Background
In January 2003, Plaintiff was hired as a Senior Contract
Specialist by the OCP, an agency of the District of Columbia
government. Compl. ¶¶ 3, 8. Beginning in 2005 and continuing until
early 2009, Plaintiff alleges that various D.C. employees pressured
him to approve contracts that were fraudulent, wasteful, and
violated D.C. and federal laws and regulations. Id. ¶¶ 10-111.
Plaintiff refused to approve these contracts and filed a series of
whistleblower complaints with various D.C. and federal agencies.
Id. ¶¶ 10-94. In alleged retaliation for his whistleblowing
activities, Plaintiff was allegedly demoted, stripped of his
contracting officer authority, deprived of various employment
opportunities within the D.C. government, and otherwise
discriminated against. Id. ¶¶ 30, 40-100, 109-11.
In March 2009, the construction contracting group at OCP,
where Plaintiff worked, was moved to the D.C. government’s Office
of Property Management (“OPM”). Id. ¶¶ 103, 105. In connection
with this move, Plaintiff’s co-workers were transferred to other
positions within OCP or were sent to the new OPM construction
contracting division. Id. ¶¶ 119-20. Plaintiff, by contrast,
received a notice of Reduction in Force (“RIF”) shortly after the
reorganization. Id. ¶ 115. This notice, which was dated May 18,
2009, was received by Plaintiff on May 29, 2009, and was effective
as of June 19, 2009. Id. ¶ 115-16. Plaintiff was the only member of
the OCP construction contracting group who was subjected to a RIF.
Id. ¶ 118. On June 3, 2009, Plaintiff was placed on administrative
leave with pay. Id. ¶ 122.
On June 11, 2009, Plaintiff filed a whistleblower complaint
and a complaint about the RIF with the D.C. Inspector General’s
Office. Id. ¶ 123. On June 19, 2009, Plaintiff’s RIF went into
effect and he was terminated from employment. Id. ¶ 124. On July
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16, 2009, Plaintiff appealed the RIF decision to the D.C. Office of
Employee Appeals (“OEA”). Id. ¶ 126. Plaintiff withdrew his appeal
without prejudice on April 11, 2010. Id. ¶ 127. Subsequently, the
OEA dismissed Plaintiff’s appeal with prejudice on April 13, 2010.
Id. ¶ 128.
On June 18, 2010, Plaintiff filed the instant Complaint
against the D.C. government [Dkt. No. 1]. On September 1, 2010,
Defendant filed its Motion to Dismiss all of Plaintiff’s claims
(“Def.’s Mot.”) [Dkt. No. 5]. On October 4, 2010, Plaintiff filed
his Opposition to Defendant’s Motion to Dismiss (“Plaintiff’s
Opp’n”) [Dkt. No. 7]. On October 21, 2010, Defendant filed its
Memorandum in Reply to the Plaintiff’s Opposition to the District’s
Motion to Dismiss (“Def.’s Reply”) [Dkt. No. 9].
II. Standard of Review
Under Rule 12(b)(6), a plaintiff need only plead “enough facts
to state a claim to relief that is plausible on its face” and to
“nudge[] [his or her] claims across the line from conceivable to
plausible.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
“[A] complaint [does not] suffice if it tenders naked assertions
devoid of further factual enhancement.” Ashcroft v. Iqbal, 129
S.Ct. 1937, 1949 (2009) (internal quotations omitted) (citing
Twombly, 550 U.S. at 557). Instead, the complaint must plead facts
that are more than “merely consistent with” a defendant’s
liability; “the pleaded factual content [must] allow[] the court to
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draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. at 1940 (citing Twombly, 550 U.S. at 556).
“[O]nce a claim has been stated adequately, it may be
supported by showing any set of facts consistent with the
allegations in the complaint.” Twombly, 550 U.S. at 563. Under the
standard set forth in Twombly, a “court deciding a motion to
dismiss must . . . assume all the allegations in the complaint are
true (even if doubtful in fact) . . . [and] must give the plaintiff
the benefit of all reasonable inferences derived from the facts
alleged.” Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc.,
525 F.3d 8, 17 (D.C. Cir. 2008) (internal quotations and citations
omitted). See Tooley v. Napolitano, 586 F.3d 1006, 1007 (D.C. Cir.
2009) (declining to reject or address the government’s argument
that Iqbal invalidated Aktieselskabet).
III. Analysis
Defendant argues that Plaintiff fails to state a claim for
relief under both the DCWPA and the FCA.
With regard to the DCWPA claim, Defendant raises substantive
as well as procedural challenges. In bringing its substantive
challenge, Defendant argues that many of Plaintiff’s allegations
are not covered by the DCWPA. In terms of its procedural challenge,
Defendant makes the over-arching claim that recent amendments to
the DCWPA do not apply to incidents, such as Plaintiff alleges,
that occurred before the amendments went into effect. In the
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alternative, Defendant argues that Plaintiff’s DCWPA claim must be
dismissed as preempted by the D.C. Comprehensive Merit Personnel
Act (“CMPA”), D.C. Code § 1-601.01 et seq.
A. Plaintiff’s DCWPA Claim
The DCWPA is intended to “[e]nsure that the rights of [D.C.]
employees to expose corruption, dishonesty, incompetence, or
administrative failure are protected” and to shield these employees
“from reprisal or retaliation for the performance of their duties.”
D.C. Code § 1-615.51(5),(7).
Under the DCWPA, D.C. employees have the right “to disclose
information unlawfully suppressed, information concerning illegal
or unethical conduct which threatens or which is likely to threaten
public health or safety or which involves the unlawful
appropriation or use of public funds.” D.C. Code § 1-615.58(2). The
statute obligates these employees to “make all protected
disclosures concerning any violation of law, rule, or regulation,
contract, misuse of government resources . . . as soon as the
employee becomes aware of the violation or misuse of resources.”
D.C. Code § 1-615.58(7). The DCWPA prohibits supervisors from
taking or threatening to take “prohibited personnel actions”1 or to
otherwise retaliate against an employee because of her protected
1
The DCWPA defines a “prohibited personnel action” as
including, among other things, a “recommended, threatened, or
actual termination, demotion, suspension, or reprimand.” D.C. Code
§ 1-615.52.
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disclosures or her refusal to comply with an illegal order. D.C.
Code § 1-615.53(a).
1. Defendant’s Substantive Argument Misperceives
Plaintiff’s Claim
In its Motion, Defendant argues that “many” of the allegations
raised by Plaintiff “are not ‘prohibited personnel actions’ as
defined by the [DCWPA].” Def.’s Mot. 5 n.1. This argument, in turn,
rests on the theory that Plaintiff’s DCWPA claim relies on numerous
separate violations of the statute. However, as reflected in the
Complaint, Plaintiff’s claim is, in fact, based on one and only one
incident, namely, the RIF. Compl. ¶ 141 (“By laying off plaintiff,
defendant retaliated against him because of his whistle-blowing
activities and thereby violated the D.C. Whistleblower Protection
Act . . . .”); Plaintiff’s Opp’n 23-24.
While the Complaint does contain numerous allegations that
Plaintiff made protected disclosures and was retaliated against for
his whistleblowing activities, those incidents are not the basis of
his DCWPA claim. Rather, these are factual allegations presented to
support Plaintiff’s sole legal claim under the statute, namely that
the RIF was retaliatory. With respect to this RIF, Defendant does
not challenge its status as a “prohibited personnel action” under
the DCWPA.
Accordingly, the Court denies Defendant’s substantive
challenge to Plaintiff’s DCWPA claim, which is based solely on the
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RIF. The Court will now turn to Defendant’s procedural arguments
against Plaintiff’s DCWPA claim.
2. The 2010 Amendments to the Statute of Limitations
and Pre-Suit Notice Requirement Are Retroactive
As already noted, the parties disagree about the applicability
of the Whistleblower Protection Amendment Act of 2009, which went
into effect on March 11, 2010 (“2010 Amendments”), 2010 D.C. Legis.
Serv. 18-117 (West), and amended the DCWPA originally enacted in
1998. Def.’s Mot. 3-6; Plaintiff’s Opp’n 26-28.
First, the 2010 Amendments changed the DCWPA’s statute of
limitations from “1 year after a violation occurs or within 1 year
after the employee first becomes aware of the violation” to “3
years after a violation occurs or within one year after the
employee first becomes aware of the violation, whichever occurs
first.” 2010 Amendments, Sec. 3(c).
Second, the 2010 Amendments eliminated the DCWPA’s pre-suit
notice requirement, contained in D.C. Code § 12-309 (“12-309
notice”), that had required employees to give written notice to the
D.C. Mayor’s office “within six months after the injury or damage
was sustained,” providing the “approximate time, place, cause, and
circumstances of the injury or damage.” 2010 Amendments, Sec. 2(c).
Defendant argues that because the 2010 Amendments lack clear
language supporting their retroactive application, this Court
“should apply the well established rule disfavoring retroactive
application[] of statutes.” Def.’s Mot. 4. In response, Plaintiff
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claims that D.C. and federal case law establishes that procedural
amendments, such as those involved here, may generally be applied
retroactively. Plaintiff’s Opp’n 26-27. Plaintiff also points to
recent case law from the D.C. courts that has specifically found
the DCWPA amendments to the statute of limitations and pre-suit
notice requirement to be retroactive. Id. at 26; Plaintiff Ex. 5 -
Notice of Supplemental Authority (Nov. 30, 2010) [Dkt. No. 11]:
Davis v. District of Columbia, No. 2005-CA-8772 B (D.C. Super. Ct.
Nov. 23, 2010).
It is well-settled that on issues of District of Columbia law
this Court defers to the decisions of the local D.C. courts.
Williams v. Martinez, 586 F.3d 995, 1001 (D.C. Cir. 2009). As
Plaintiff correctly points out, recent D.C. case law does indeed
establish that the 2010 Amendments to the statute of limitations
and § 12-309 notice requirement are retroactive.
In Cusick v. District of Columbia, No. 2008-CA-6915 (D.C.
Super. Ct. Aug. 17, 2010), the D.C. Superior Court held, in an oral
opinion, that the amendments to the DCWPA’s statute of limitations
and § 12-309 notice requirement were procedural. Plaintiff Ex. 3
(Oct. 4, 2010) [Dkt. No. 7-3] - Transcript of August 17, 2010
Cusick v. District of Columbia, Tr. 23:11-30:25. Therefore, the
court concluded that the 2010 Amendments should be applied
retroactively to a DCWPA claim alleging retaliation that occurred
in 2007. Id. In holding that the Amendments were procedural in
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nature, the court stated that “if a procedural statute is amended
the rule is that the amendment applies to pending proceedings as
well as to those instituted after the amendment . . . .” Id. at Tr.
29:9-12. The court further held that, in its view, “the committee
report [on the 2010 Amendments] is clear . . . that the statute is
to apply retroactively.” Id. at Tr. 27:1-2.
In Davis, the D.C. Superior Court also held that the 2010
Amendments to the statute of limitations and § 12-309 notice
requirement were retroactive and therefore applied to a DCWPA claim
involving events occurring in 2001 and 2004. In reaching this
conclusion, the court relied on the distinction between substantive
and procedural amendments drawn in Landgraf v. USI Film Products,
511 U.S. 244, 114 S. Ct. 1483 (1994). Davis, No. 2005-CA-8772 B,
slip op. at 4. In keeping with Landgraf, the court concluded that
procedural statutes “may often be applied to lawsuits arising
before their enactment without raising concerns about
retroactivity.” Id. at 5 (internal quotations and citations
omitted). Based upon Landgraf, as well as a review of the
Amendments’ legislative history, the court concluded that changes
to the DCWPA’s statute of limitations and § 12-309 notice
requirement are procedural and therefore retroactive. Id. at 4-7.2
2
Several recent decisions from this District Court have
specifically held that the change to the pre-suit notice
requirement is procedural and therefore retroactive. Williams v.
Johnson, 06-cv-02076, slip op. at 9-11 (D.D.C. May 23, 2011)
(continued...)
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In briefing on the pending Motion to Dismiss, Defendant fails
to even address this case law or to otherwise respond to
Plaintiff’s claim that the amendments are procedural.3 However, in
its Reply to the Metropolitan Washington Employment Lawyers
Association’s (“MWELA”) amicus brief filed in this case, Defendant
does challenge Plaintiff’s claim regarding the § 12-309 notice
provision. District of Columbia’s Reply to MWELA’s Amicus Curiae
Brief, 3 (Feb. 16, 2011) [Dkt. No. 17]. In its Reply, Defendant
argues that because elimination of the § 12-309 notice requirement
amounts to an “unconditional waiver of sovereign immunity” that has
“changed the terms under which [the District of Columbia] is
subject to suit,” the § 12-309 notice amendment is substantive, not
procedural, and, therefore, should not be applied retroactively.
2
(...continued)
(holding that amendment to DCWPA pre-suit notice requirement is
procedural and therefore retroactive); Bowyer v. District of
Columbia, 09-cv-0319, 2011 WL 1603257 at *4 (D.D.C. Apr. 29, 2011)
(same); Winder v. Erste, 03-cv-2623, slip op. at 4-5 (D.D.C. Mar.
7, 2011)(same). At least one judge in this District Court has,
however, held that the 2010 Amendments as a whole are not
retroactive. Payne v. District of Columbia, 741 F. Supp. 2d 196,
211 (D.D.C. 2010). In Davis, No. 2005-CA-8772 B, slip op. at 7 n.6,
the D.C. Superior Court distinguished Payne, observing that “[t]he
opinion in Payne . . . reached these conclusions without
considering the distinction between retroactive application of
substantive and procedural laws, the legislative history of the
DCWPA amendments, or the District of Columbia case law . . . .”
3
Although the Davis case was issued after briefing on the
Motion was complete, the Cusick case was included in Plaintiff’s
Opposition brief. Plaintiff’s Opp’n 26. Defendant did not address
this case in its reply brief or generally respond to Plaintiff’s
argument regarding the procedural nature of the DCWPA amendments
applicable to this matter.
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Id.The sovereign immunity defense is jurisdictional and can,
therefore, be raised at any time. FDIC v. Meyer, 510 U.S. 471, 475,
114 S. Ct. 996 (1994); JB Pictures, Inc. v. Dep’t of Defense, 86
F.3d 236, 238 (D.C. Cir. 1986). Consequently, although Defendant
presented this claim for the first time in reply to an amicus
brief, the argument is properly before this Court.
As case law establishes, Defendant’s sovereign immunity
argument lacks merit. The D.C. courts have clearly held that the
pre-suit notice provision, which is contained in D.C. Code § 12-
309, does not constitute a waiver of sovereign immunity. Tucci v.
District of Columbia, 956 A.2d 684, 695-96 (D.C. 2008). Rather,
pre-suit notice “is a condition precedent which, if not met, will
prevent the destruction of sovereign immunity. . . . A waiver of
sovereign immunity must be found in some other source [like] a
separate statute . . . .” Id. at 696 (internal quotations and
citations omitted). With regard to DCWPA claims, the D.C.
government waived its sovereign immunity when it first passed the
statute in 1998. Williams, 06-cv-02076, slip op. at 11; Bowyer,
2011 WL 1603257 at *4. Consequently, the 2010 amendment to the
DCWPA’s pre-suit notice requirement did not create a substantive
change to the D.C. government’s liability. Bowyer, 2011 WL 1603257at *4. Rather, it was a procedural amendment and therefore subject
to retroactive application. Williams, 06-cv-02076, slip op. at 11;
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Bowyer, 2011 WL 1603257 at *4.
In line with applicable D.C. law, this Court holds that the
2010 Amendments to the DCWPA’s statute of limitations and § 12-309
notice provision are procedural and therefore retroactive. The
Court will now consider whether these Amendments preclude dismissal
of Plaintiff’s DCWPA claim.
a. Statute of Limitations
Under the 2010 Amendments, a civil action is timely if
instituted "within 3 years after a violation occurs" or "within one
year after the employee first became aware of the violation,"
whichever occurs first. D.C. Code § 1-615.54 (a)(2). According to
the Complaint, on May 29, 2009, Plaintiff, who was on sick leave at
the time, received a RIF notice. Compl. ¶ 116. The notice was dated
May 18, 2009. Id. ¶ 115. On June 19, 2009, Plaintiff’s RIF “became
effective and he was terminated from employment.” Id. ¶ 124.
There is no dispute that a one year statute of limitations
applies to this case, but what is disputed is the date on which
this limitations period begins. Plaintiff argues that the
limitations period started on June 19, 2009, the effective date of
the RIF. Plaintiff’s Opp’n 23-25. Defendant argues that the statute
of limitations began to run either on May 18, 2009, the date the
RIF notice was issued, or on May 29, 2009, the date Plaintiff
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received the notice.4 Def.’s Mot. 3-5; Def.’s Reply 1-2.
To resolve this issue, the Court must determine, as a matter
of law, when Plaintiff’s discharge from employment occurred.
According to D.C. and federal case law, termination occurs at “the
time of the discriminatory act, not [at] the point at which the
consequences of the act become painful.” Stephenson v. American
Dental Ass’n, 789 A.2d 1248, 1250 (D.C. 2002) (quoting Chardon v.
Fernandez, 454 U.S. 6, 8, 102 S. Ct. 28 (1981) (per curiam))
(emphasis in original). Accordingly, a plaintiff is terminated from
employment when she receives "final, unequivocal, and definite"
notice of her termination, even if the effective date occurs later.
Del. State College v. Ricks, 449 U.S. 250, 259, 101 S. Ct. 498(1980); Cesarano v. Reed Smith, LLP, 990 A.2d 455, 465 (D.C. 2010)
(quoting Barrett v. Covington & Burling, LLP, 979 A.2d 1239, 1253
(D.C. 2009)); Stephenson, 789 A.2d at 1252-53. A notice of
termination will not be final, unequivocal, and definite if the
possibility of returning to work remains open. Cesarano, 990 A.2d
at 467.
In this case, Plaintiff concedes that he received notice of
the RIF on May 29, 2009. The Complaint is, however, silent as to
4
Defendant argues that the statute of limitations bars all
allegations raised by Plaintiff that occurred prior to these dates.
Def.’s Mot. 4-5; Def.’s Reply 1-2. However, as discussed supra,
this argument misconstrues Plaintiff’s DCWPA claim, which is based
only on his RIF. Consequently, the Court will only address
Defendant’s statute of limitations argument regarding the RIF.
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the specific content of the RIF notice.5 In briefing on the pending
Motion to Dismiss, Plaintiff argues that the RIF notice "merely
proposed" termination because Plaintiff "was still employed and on
the payroll until June 19. . . . [and] the termination was not
effective until June 19." Plaintiff’s Opp’n 24. Plaintiff also
argues that since he “could not have appealed his termination to
the Office of Employee Appeals until after June 19” the limitations
period should not begin before that date. Id.
Because this matter is raised in a Rule 12(b)(6) motion, the
court must “resolve ‘[a]ll factual doubts . . . and all
inferences . . . in favor of the plaintiff.’” U.S. ex rel. Williams
v. Martin Baker Aircraft Co., 389 F.3d 1251, 1261-62 (D.C. Cir.
2004) (quoting Tele-Commc’ns of Key West, Inc. v. United States,
757 F.2d 1330, 1334-35 (D.C. Cir. 1985)). Accordingly, because
there is no evidence that the RIF notice gave “final, unequivocal,
and definite” notice of termination, the Court concludes that
Plaintiff’s termination did not occur until he was finally
discharged from work on June 19, 2009. Consequently, Plaintiff’s
DCWPA claim, which was filed on June 18, 2010, falls within the one
year statute of limitations.
5
Curiously, neither party submitted a copy of the RIF notice.
Presumably, more facts about this notice will surface as the
litigation proceeds.
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b. § 12-309 Notice
Pursuant to the 2010 Amendments, Plaintiff was not required to
file notice, under Section 12-309 of the D.C. Code, with the D.C.
Mayor’s Office. However, Defendant’s argument on this issue fails
under either version of the statute because Defendant’s only claim
is that the § 12-309 notice provision bars those allegations
occurring before May 18, 2009. Def.’s Mot. 5-6. As the Court has
explained, supra, this argument misconstrues Plaintiff’s DCWPA
claim, which is based only on the RIF. Moreover, Defendant concedes
that Plaintiff filed proper pre-suit notice for his RIF challenge.
Def.’s Mot. 6; Compl. ¶ 153. Consequently, there are no grounds
under either the earlier DCWPA or the 2010 Amendments to dismiss
Plaintiff’s DCWPA claim for failure to file § 12-309 notice.
For the forgoing reasons, the Court denies Defendant’s motion
to dismiss Plaintiff’s DCWPA claim as barred by the statute of
limitations and § 12-309 notice requirement.
2. The CMPA Does Not Preempt Plaintiff’s DCWPA Claim
The CMPA is “[w]ith few exceptions . . . the exclusive remedy
for a District of Columbia employee who has a work-related
complaint of any kind.” Robinson v. District of Columbia, 748 A.2d
409, 411 (D.C. 2000) (citation omitted). The statute establishes “a
merit personnel system that, among other things, provides for (1)
employee ‘performance ratings,’ including ‘corrective actions’ when
necessary; (2) employee discipline through ‘adverse action’
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proceedings; and (3) prompt handling of employee ‘grievances.’”
District of Columbia v. Thompson, 593 A.2d 621, 625 (D.C. 1991)
(citations omitted). Under the CMPA, an employee must exhaust the
applicable administrative procedures before pursuing judicial
remedies. Robinson, 748 A.2d at 411. Thus, they are required to
first bring their challenge to the OEA, and may thereafter appeal
any adverse decision to the D.C. Superior Court and thereafter to
the District of Columbia Court of Appeals. Thompson v. District of
Columbia, 978 A.2d 1240, 1242 (D.C. 2009).
Defendant argues that Plaintiff’s DCWPA claim is covered by
the CMPA and therefore preempted by that statute’s requirement to
exhaust administrative remedies. Def.’s Mot. 7-9. Specifically,
Defendant claims that because of CMPA preemption, Plaintiff’s only
recourse was to appeal the April 2010 OEA decision on his RIF to
the D.C. Superior Court, which he failed to do. Id. at 8-9.
To ascertain whether the CMPA applies in this case, the Court
must determine: (1) whether Plaintiff was an employee covered by
the statute; and (2) whether Plaintiff’s DCWPA claim qualifies as
a “grievance” under the CMPA. While Plaintiff does not deny that he
is a covered employee,6 he argues that his RIF is actionable under
6
According to D.C. Code § 1-602.01, the CMPA applies to “all
employees of the District of Columbia government, except the Chief
Judges and Associate Judges of the Superior Court of the District
of Columbia and the District of Columbia Court of Appeals and the
nonjudicial personnel of said Courts.” While D.C. Code § 1-
602.01(c) lists certain categories of D.C. employees who are
(continued...)
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both the DCWPA and the CMPA. Plaintiff’s Opp’n 29. Plaintiff
contends that because of this “concurrent jurisdiction” he was not
required to exhaust administrative remedies before bringing his
DCWPA claim in federal court. Id. at 29-30.
a. The DCWPA Does Not Require Exhaustion of
Administrative Remedies
The DCWPA was passed in 1998 as an amendment to the CMPA,
which was enacted in 1979. Its purpose was to “increase protection
for District government employees who report waste, fraud, abuse of
authority, violations of law, or threat[s] to public health or
safety,” and “to impose an enforceable obligation on District
government supervisors to report violations of law when
circumstances require, and to afford the same whistleblower
protections to employees of District instrumentalities and
employees of contractors who perform work on District contracts.”
Whistleblower Protection for Certain District Employees, 1998 D.C.
Laws 12-160, Act 12-398.
It is clear that the DCWPA was intended to supplement the CMPA
by “enhanc[ing] the rights of District employees to challenge the
actions or failure of their agencies and to express their views
without fear of retaliation,” and by “provid[ing] new rights and
remedies to guarantee and ensure that public offices are truly
6
(...continued)
excepted from the CMPA, Plaintiff does not fall into any of these
groups.
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public trusts.” D.C. Code § 1-615.51 (1),(3). Among the rights that
the DCWPA clearly and unequivocally provided was the right of D.C.
employees to bring civil actions against the D.C. government to
enforce whistleblower rights and protections. See D.C. Code § 1-
615.54(a)(1) (“An employee aggrieved by a violation of [the DCWPA]
may bring a civil action against the District. . . .”).
As Plaintiff correctly points out, the DCWPA permits an
employee to pursue both administrative and judicial remedies. D.C.
Code § 1-615.56(b).7 In addition, the statute permits an employee
to completely forego administrative remedies and bring only a civil
action. D.C. Code § 1-615.56(a). As the Supreme Court held in
Pierce County, Washington v. Guillen, “[w]hen Congress acts to
amend a statute, we presume it intends its amendment to have real
and substantial effect.” 537 U.S. 129, 145, 123 S. Ct. 720 (2003)
7
Section 1-615.56 provides:
a. The institution of a civil action pursuant to §
1.615.54 shall preclude an employee from pursuing
any administrative remedy for the same cause of
action from the Office of Employee Appeals or from
an arbitrator pursuant to a negotiated grievance
and arbitration procedure or an employment
contract.
b. An employee may bring a civil action pursuant to
§ 1-615.54 if the aggrieved employee has had a
final determination on the same cause of action
from the Office of Employee Appeals or from an
arbitrator pursuant to a negotiated grievance and
arbitration procedure or an employment contract.
D.C. Code § 1-615.56.
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(internal quotations and citation omitted) (alteration in
original). Defendant’s argument that DCWPA claims are subject to
the CMPA’s administrative exhaustion requirement would, however,
deprive the DCWPA of precisely such “real and substantial effect”
because it would create a mandatory administrative scheme for DCWPA
claims that Section 1-615.56 of the statute explicitly excludes.
Statutory interpretations that create such “absurd results are
strongly disfavored.” United States v. Wilson, 290 F.3d 347, 361
(D.C. Cir 2002) (internal quotations and citation omitted).
b. Case Law Also Fails to Establish that the
CMPA Preempts Claims Brought Under the DCWPA
D.C. case law, while not extensive, also provides persuasive
evidence that CMPA preemption is inapplicable to DCWPA claims. See
Williams v. District of Columbia, 9 A.3d 484 (D.C. 2010)(no mention
of CMPA or need to exhaust administrative remedies in case alleging
violations of DCWPA); Wilburn v. District of Columbia, 957 A.2d 921(D.C. 2008)(same); Johnson v. District of Columbia, 935 A.2d 1113(D.C. 2007) (same).8 Although the CMPA’s administrative exhaustion
8
In Raphael v. Okyiri, 740 A.2d 935 (D.C. 1999), plaintiff
challenged her termination under the CMPA and also instituted a
civil action in D.C. Superior Court in which claims were brought
under both the CMPA and an earlier version of the whistleblower
statute. Notably, plaintiff brought her civil action before
exhausting her administrative remedies. See id. at 951 (noting that
plaintiff’s whistleblower claim constituted a “separate civil
action” from her administrative proceeding and had gone to trial
“less than four weeks” after plaintiff had won her administrative
claim). In rendering its decision, the court did not in any way
suggest that the CMPA’s administrative remedies should have been
(continued...)
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requirement was applied to a DCWPA claim in Burton v. District of
Columbia, 835 A.2d 1076(D.C. 2003), plaintiff had failed to raise
his argument on this issue in the proceedings below and therefore
the Court of Appeals refused to consider it. Defendant provides no
authority other than Burton, which is clearly distinguishable,
applying CMPA preemption to a DCWPA claim.9
For the foregoing reasons, the Court denies Defendant’s
argument that the CMPA preempts Plaintiff’s DCWPA claim.
8
(...continued)
exhausted before plaintiff brought her whistleblower action.
Although Raphael was decided in 1999, the events at issue in that
case occurred well before the DCWPA’s enactment. Because the DCWPA
explicitly provided that it was not applicable to claims arising
before its enactment, a previous version of the D.C. whistleblower
law governed the dispute. Id. at 937 n.1.
9
Defendant cites other cases, all of which involve only CMPA
preemption of common law and constitutional claims. Def.’s Mot. 7-
8; Def.’s Reply 2-3. See Johnson v. District of Columbia, 368 F.
Supp. 2d 30, 43-48 (D.D.C. 2005)(dismissing plaintiff’s wrongful
termination and constitutional claims as explicitly covered by CMPA
and holding that issue of CMPA’s applicability to tort claims
should be determined in first instance by OEA), aff’d, 552 F.3d 806(D.C. Cir. 2008); Robinson, 748 A.2d at 411-413 (holding that CMPA
preempted plaintiff’s tort claims); Bd. of Trustees, Univ. of D.C.
v. Myers, 652 A.2d 642, 646-48 (D.C. 1995) (holding that breach of
contract claim brought by professor against University of the
District of Columbia was preempted by CMPA-sanctioned collective
bargaining agreement between university and its employees);
District of Columbia v. Thompson, 593 A.2d at 635 (holding that
CMPA applied to preclude litigation of common law tort claims in
the first instance).
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B. Plaintiff’s FCA Claim
The FCA prohibits individuals from “knowingly present[ing], or
caus[ing] to be presented, a false or fraudulent claim for payment
or approval” to the U.S. government. 31 U.S.C. § 3729(a)(1)(A).
Under the statute, an employee who has been discriminated against
for engaging in protected activities may bring a civil action
against her employer. Section 3730(h), which is the basis of this
cause of action, provides that:
Any employee, contractor, or agent shall be
entitled to all relief necessary to make that
employee, contractor, or agent whole, if that
employee, contractor, or agent is discharged,
demoted, suspended, threatened, harassed, or
in any manner discriminated against in the
terms and conditions of employment because of
lawful acts done by the employee . . . in
furtherance of an action under this section or
other efforts to stop 1 or more violations of
this subchapter.
31 U.S.C. § 3730(h).
To make out a claim of retaliation under the FCA, an employee
must demonstrate that: “(1) he engaged in protected activity . . .
and (2) he was discriminated against because of that activity.”
U.S. ex rel. Yesudian v. Howard Univ., 153 F.3d 731, 736 (D.C. Cir.
1998) (internal quotations and citation omitted). Where there is no
direct evidence of discrimination, “the employee must . . . make
two further showings. The employee must show that: (a) the employer
had knowledge the employee was engaged in protected activity; and
(b) the retaliation was motivated, at least in part, by the
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employee's engaging in [that] protected activity.” Id. (internal
quotations and citations omitted) (alteration in original).
Defendant essentially argues that Plaintiff’s FCA claim fails
because he has not presented facts establishing a prima facie
case.10 Def.’s Mot. 10-11. This, however, is not the standard to be
applied to a Rule 12(b)(6) motion to dismiss. It is well-
established that this standard requires only that a complaint
contain “sufficient factual matter, accepted as true, to state a
claim for relief that is plausible on its face.” Iqbal, 129 S. Ct.
at 1949 (emphasis added). A claim is facially plausible when the
pleaded factual content “allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”
Id. Applying this standard, the Court will now consider whether
Plaintiff has stated a plausible claim for relief under the FCA.
1. Engaging in Protected Activities
Under the FCA, an employee engages in protected activity when
she “discloses fraud and corruption, as opposed to making a
‘complaint about mere regulatory compliance.’” Kakeh v. United
10
Defendant argues that Plaintiff fails the test in Yesudian
for several reasons. First, Plaintiff’s complaint is “devoid of
facts which would lead this Court to conclude that any of the
alleged irregularities reported by the plaintiff could have led to
a viable [FCA] claim.” Def.’s Mot. 10. Second, Plaintiff cannot
show that Defendant had knowledge of his protected activities
because his “complaints can be interpreted as unprotected grumbling
about job dissatisfaction or regulatory violations.” Id. at 11.
Finally, Plaintiff cannot show that his RIF resulted from his
“protected activities” because those activities occurred long
before the RIF. Id.
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Planning Org., Inc., 655 F. Supp. 2d 107, 117 (D.D.C. 2009)
(quoting Yesudian, 153 F.3d at 744-45). A plaintiff does not need
to have “developed a winning [case] before [she] is retaliated
against.” Yesudian, 153 F.3d at 739. Rather, it is sufficient that
her disclosures “reasonably could lead” to a viable FCA case. Id.
at 740.
Plaintiff has made numerous allegations that he repeatedly
complained about D.C. officials pressuring him to rubber stamp
contracts and invoices that were fraudulent and wasteful. Compl. ¶¶
10-11, 13, 17-19, 26, 35-37. These allegations specify the
government employees involved, detail the fraudulent and wasteful
nature of these contracts and invoices, and provide information
regarding the approximate time period when the violations occurred.
Plaintiff has more than adequately pled these allegations with
sufficient particularity to reasonably lead to a viable FCA claim.
Cf. Martin-Baker Aircraft Co., 389 F.3d at 1260 (holding that on a
12(b)(6) motion plaintiff’s whistleblower allegations under the FCA
are subject only to the general pleading requirements of Federal
Rule of Civil Procedure 8).
Consequently, Plaintiff has alleged sufficient facts to
demonstrate that he engaged in protected activities which
“reasonably could lead” to a viable FCA claim. Id.
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2. Knowledge of Plaintiff’s Protected Activities
As our Court of Appeals has held, the standard for
establishing employer knowledge is “flexible.” Id. Under the FCA,
a plaintiff may establish such knowledge by alleging “any action
which a factfinder reasonably could conclude would put the employer
on notice that litigation is a reasonable possibility.” Id. at 1261
(internal quotations and citation omitted). Where plaintiff alleges
that he acted “outside his normal job responsibilities” or
“alert[ed] a party outside the usual chain of command” to the
fraudulent activity, “such action may suffice to notify the
employer that the employee is engaging in protected activity.” Id.
(citation omitted). Plaintiff is not required to “announce he has
gone outside the institution” to report an FCA violation. Yesudian,
153 F.3d at 743.
Plaintiff has made numerous allegations that, if proven, would
establish Defendant’s knowledge of his protected activities.
Plaintiff spoke to his supervisor about the fraudulent and wasteful
actions occurring in his agency. See, e.g., Compl. ¶¶ 17-18, 35-37.
When his supervisor pressured him to disregard these violations and
approve the offending contracts and invoices, Plaintiff went beyond
the management chain and outside the OCP to complain by filing two
formal complaints with the U.S. Department of Justice. Id. ¶¶ 34,
94.
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Consequently, Plaintiff has presented allegations that, if
proven, could lead a fact-finder to “reasonably conclude” that
Defendant had knowledge of Plaintiff’s protected activities.
3. Causation
Defendant urges this Court to use the “temporal proximity”
test to decide whether Plaintiff’s termination was caused by his
protected activities. Def.’s Mot. 11; Def.’s Reply 3-5. Under that
test, courts determine causation based upon the lapse in time
between plaintiff’s protected activity and the adverse employment
action. While this Circuit has used temporal proximity in certain
circumstances, it has, contrary to Defendant’s position, often
looked beyond mere temporal proximity and evaluated causation based
on the totality of a plaintiff’s allegations.
Most recently, in Taylor v. Solis, 571 F.3d 1313, 1322-23
(D.C. Cir. 2009), our Court of Appeals analyzed a retaliation claim
by considering both temporal proximity as well as the pattern of
antagonism plaintiff suffered prior to the reprisals. Several of
our district court cases have also established that a number of
factors, including but not limited to temporal proximity, are
relevant to evaluating causation. See Walker v. England, 590 F.
Supp. 2d 113, 139 (D.D.C. 2008) (holding that “temporal
proximity . . . is not the exclusive method of showing a causal
connection”); Barry v. U.S. Capitol Guide Bd., No. 04-cv-0168, 2005
WL 1026703 at *6 (D.D.C. May 2, 2005) (holding that “it is clear
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that after drawing all appropriate inferences in his favor [] that
the plaintiff has stated a claim of retaliation even though its
proximity to the protected activity would not alone support the
claim”); Buggs v. Powell, 293 F. Supp. 2d 135, 149 (D.D.C. 2003)
(holding that the “proffered evidence as a whole . . . created an
inference of retaliatory discrimination” against plaintiff “even
though [the retaliatory act’s] proximity to the protected activity
would not alone support such an inference”).
In his Complaint, Plaintiff has presented sufficient
allegations, which must be taken as true, that could lead a jury to
conclude, by a preponderance of the evidence, that Plaintiff’s
termination was related to his protected activities. Over
approximately a four year period, Defendant filed numerous formal
complaints with various D.C. and government agencies alleging
illegal and fraudulent contract and procurement practices taking
place within his agency. According to Plaintiff, as a result of
these complaints, he was repeatedly denied employment
opportunities, and otherwise harassed and discriminated against by
D.C. officials. This discrimination and harassment began shortly
before Plaintiff’s first whistleblower complaint in July 2005 and
continued up until his termination in June 2009. See generally
Compl. ¶¶ 10-124.
Consequently, the Court concludes that Plaintiff has made
allegations, assumed to be true at this stage of the litigation,
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which are sufficient to establish a claim under the FCA. The Court,
therefore, denies Defendant’s motion to dismiss Plaintiff’s FCA
claim under Rule 12(b)(6).
IV. CONCLUSION
For the reasons stated herein, the Court denies Defendant’s
Motion to Dismiss in its entirety. An Order will accompany this
Memorandum Opinion.
/s/
June 17, 2011 Gladys Kessler
United States District Judge
Copies via ECF to all counsel of record
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