Coleman v. Dist. of Columbia

• Decision Date: 17 July 2015
• Docket Number: No. 12–7114.,12–7114.
• Citation: 794 F.3d 49
• Parties: Vanessa COLEMAN, Appellant v. DISTRICT OF COLUMBIA, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

794 F.3d 49

Vanessa COLEMAN, Appellant

v.DISTRICT OF COLUMBIA, et al., Appellees.

No. 12–7114.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 17, 2014.

Decided July 17, 2015.

Jatinique Randle, Student Counsel, argued the cause for appellant. On the briefs was Aderson Bellegarde Francois.

Carl J. Schifferle, Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for appellees. With him on the brief were Irvin B. Nathan, Attorney General, Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor General.

Before: BROWN and MILLETT, Circuit Judges, and EDWARDS, Senior Circuit Judge.

Opinion

Opinion for the Court filed by Circuit Judge MILLETT.

Dissenting Opinion filed by Circuit Judge BROWN.

MILLETT, Circuit Judge:

Following a major fire in which a high-rise apartment building was destroyed, the District of Columbia Fire and Emergency Medical Services Department took disciplinary action against the Appellant, Fire Captain Vanessa Coleman. That disciplinary proceeding set off a series of charges and complaints by Coleman and counter-charges by the Department, culminating in Coleman's discharge.

Coleman subsequently filed a lawsuit that included a claim under the District of Columbia Whistleblower Protection Act (“Whistleblower Act”), D.C.Code §§ 1–615.51 et seq. On the Department's motion for summary judgment, the district court grouped Coleman's numerous communications with her supervisors into broad categories, and then granted summary judgment to the Department on the ground that most of those categories were not statutorily protected types of communications, and for the one group that was protected, the Department had articulated a legitimate, non-retaliatory reason for its actions.

Whistleblower protection, however, is not disbursed or denied en masse. And the Whistleblower Act imposes a rigorous burden on defendants to establish by clear and convincing evidence the legitimate reasons for an adverse action. When Coleman's complaints are considered individually rather than categorically, a reasonable jury could conclude that one or more of them qualifies as a protected complaint under the Whistleblwer Act. Coleman also came forward with sufficient evidence for a reasonable jury to find a prima facie case of retaliation as to those complaints. The Department, for its part, failed to meet its demanding summary judgment burden of establishing that any reasonable juror would have to find by clear and convincing evidence that it had legitimate, non-retaliatory reasons for its actions.

We therefore reverse the grant of summary judgment as to those aspects of Coleman's Whistleblower Act claim. With one exception, we affirm the district court's grant of summary judgment as to Coleman's other challenges.

IStatutory Framework

The purpose of the District of Columbia's Whistleblower Act is “to encourage disclosure of wrongdoing to persons who may be in a position to act to remedy it.” Wilburn v. District of Columbia, 957 A.2d 921, 925 (D.C.2008) (emphasis omitted). The Whistleblower Act thus is designed to combat serious misconduct, abuses of governmental authority, or waste of public resources by creating an environment in which government employees who witness wrongdoing feel safe coming forward and are protected from retaliation. See D.C.Code § 1–615.51 ; see also id. §§ 2–223.01–2–223.07 (extending similar protections to, inter alia, employees of contractors for the D.C. government).

Sometimes, however, a workplace complaint is just a workplace complaint. To qualify as protected whistleblowing, the complaint must disclose “such serious errors by the agency that a conclusion the agency erred is not debatable among reasonable people.” Wilburn, 957 A.2d at 925 ; see also Williams v. Johnson, 776 F.3d 865, 870 (D.C.Cir.2015) (same). More specifically, the Act defines “protected disclosures” as those that the would-be whistleblower “reasonably believes” evidence:

(A) Gross mismanagement;

(B) Gross misuse or waste of public resources or funds;

(C) Abuse of authority in connection with the administration of a public program or the execution of a public contract;

(D) A violation of a federal, state, or local law, rule, or regulation, or of a term of a contract between the District government and a District government contractor which is not of a merely technical or minimal nature; or

(E) A substantial and specific danger to the public health and safety.

D.C.Code § 1–615.52(a)(6) ; see also Williams, 776 F.3d at 870 (discussing scope of Whistleblower Act protection).

For complaints falling within those categories, the Act bars a supervisor from “tak[ing] or threaten[ing] to take, a prohibited personnel action or otherwise retaliat[ing] because of the employee's protected disclosure or because of an employee's refusal to comply with an illegal order.” D.C.Code § 1–615.53(a).

The Act prescribes a distinct burden-shifting framework to govern the proof of whistleblowing claims. See Bowyer v. District of Columbia, No. 13–7012, 793 F.3d 49, 51–52, 2015 WL 4079800, at *2 (D.C.Cir. July 7, 2015). To make out a prima facie claim of retaliation under the Whistleblower Act, the plaintiff must show by a preponderance of the evidence that (i) she made a statutorily protected disclosure, and (ii) the disclosure was a “contributing factor” behind (iii) an adverse personnel action taken by her employer. See Crawford v. District of Columbia, 891 A.2d 216, 219, 221 (D.C.2006). A “contributing factor” is “any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the [employment] decision.” D.C.Code § 1–615.52(a)(2). Once a plaintiff establishes a prima facie case, the burden shifts to the employer to “prove by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected by this section.” Id. § 1–615.54(b) ; see also Freeman v. District of Columbia, 60 A.3d 1131, 1141 (D.C.2012).

Factual Background

Appellant Vanessa Coleman is a 17–year veteran of the D.C. Fire Department. She began as a cadet after graduating from high school and rose through the ranks to become a captain in command of an engine company.

On March 12, 2008, a large fire broke out in a high-rise apartment building in the Mount Pleasant neighborhood of Washington, D.C. It developed into a five-alarm fire that destroyed the entire structure and left its nearly 200 residents homeless. Coleman headed an engine company that responded to the fire. Battalion Fire Chief John Lee served as the Incident Commander, and directed the operations of firefighters on the scene, including Coleman's company.

Upon arriving at the fire, Coleman led her company to inspect the basement of the building, as required by the Department's Standard Operating Guidelines. Before she could reach the basement, however, Battalion Chief Lee instructed her to proceed directly to the third floor of the building. Coleman abandoned the basement check, following her superior's command. Coleman did not advise Lee that the basement inspection had not been completed. Nor did Lee confirm its completion with Coleman or anyone else.

The fire proved to be one of the largest in D.C.'s recent history. Failure to complete the basement check proved fatal to the Department's efforts to control the fire, which had in fact begun in the basement. The fire and the Fire Department's failure to contain it generated widespread public attention and criticism.

In the following days, the Department conducted an informal internal critique of the Mount Pleasant fire that included an inquiry into Coleman's actions. In response, Coleman sent memoranda to her superiors explaining her actions, and advocating that a formal review of the Mount Pleasant fire be undertaken to investigate all of the departmental failures that day.

On April 5, 2008, Battalion Chief John Lee issued Coleman a citation for violating the Standard Operating Guidelines and the District of Columbia Fire and Emergency Medical Services Department Order Book “by (1) not reporting her basement findings to Command; or (2) if unable to perform this assignment as so ordered by Command, immediately notify[ing] Command of this fact.” J.A. 150. Coleman refused to accept a settlement penalty, and instead exercised her right to challenge the charge.

On April 21, 2008, Coleman wrote a memorandum to Fire Chief Dennis Rubin explaining that she was challenging the charge “because the violation referenced was not an omission of neglect on [her] behalf. Instead, the error resulted from the tactical decision of the IC [Incident Commander John Lee].” J.A. 215. In Coleman's view, “the execution of the basement check wasn't completed by [her company] because the IC (deviating from standard protocol) ordered [her company] to a greater assignment of priority.” Id. This, Coleman asserted, evidenced a failure to properly manage fire operations and to contain a large, multi-alarm fire. She also repeated her recommendation that the Department conduct a thorough and formal review of command failures at the Mount Pleasant fire.

Four days later, on April 25, Battalion Chief John Lee was cited for failing to follow up with Coleman's company regarding a basement report. Unlike Coleman, however, Lee decided not to challenge the citation, and accepted an official reprimand.

In May 2008, while Coleman awaited her hearing, she wrote another memorandum to Chief Rubin, this time complaining that, since April, her superiors had been failing to endorse and timely process disciplinary actions she initiated against her subordinates. When she received no response from Chief Rubin, she continued over the next two months to submit almost a dozen memoranda to the Chief complaining that, among other things, her superiors were collectively and intentionally ignoring her requests for disciplinary support,...