Ishakwue v. Dist. of Columbia

• Decision Date: 21 July 2022
• Docket Number: 20-CV-14
• Citation: 278 A.3d 696
• Parties: Sabrathia Draine ISHAKWUE, Appellant, v. DISTRICT OF COLUMBIA, Appellee.
• Court: D.C. Court of Appeals

278 A.3d 696

Sabrathia Draine ISHAKWUE, Appellant,

v.DISTRICT OF COLUMBIA, Appellee.

No. 20-CV-14

District of Columbia Court of Appeals.

Argued January 20, 2022

Decided July 21, 2022

Steven C. Kahn, Rockville, MD, for appellant.

Ethan P. Fallon, for appellee. Karl A. Racine, Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General at the time the brief was filed, Caroline S. Van Zile, Principal Deputy Solicitor General, Ashwin P. Phatak, Deputy Solicitor General, and Mary L. Wilson, Senior Assistant Attorney General, were on the brief, for appellee.

Before Glickman and McLeese, Associate Judges, and Ferren, Senior Judge.

Ferren, Senior Judge:

This case concerns alleged violations of the D.C. Whistleblower Protection Act (WPA),¹ which protects employees of the District of Columbia government against "retaliation or reprisal"² when, in the public interest, they report to "any person"³ evidence of government "waste, fraud, abuse of authority, violations of law, or threats to public health or safety."⁴ After termination of her employment with the District of Columbia Department of Youth Rehabilitation Services (DYRS), appellant Sabrathia Draine Ishakwue sued the District under the WPA. She alleges that her termination was in retaliation for concerns she had raised with her supervisors and the D.C. Department of Health about the medical treatment that DYRS was providing to youths in its custody who allegedly were showing signs of tuberculosis

. A jury found in favor of the District, concluding that the information disclosed by appellant did not constitute "protected disclosures" under the WPA.⁵ Appellant asks us to reverse the trial court's order denying her motion to set aside the verdict and to enter judgment in her favor, or, in the alternative, to order a new trial. In addition, as an independent reason for setting aside the jury's verdict and ordering a new trial, appellant contends that she was prejudiced by the trial court's erroneous exclusion of evidence she proffered. We conclude that the verdict finding that none of the disclosures was "protected" under the WPA has adequate support in the record, and that the trial court did not abuse its discretion in excluding proffered evidence. Accordingly, we affirm the judgment.

I. Factual Background

To provide context for the alleged WPA violations, we shall first address appellant's employment history. In June 2015, appellant began working as a Clinical Nurse II at DYRS, where she was a probationary employee during her first year of employment. She reported to Michelle Jackson, a supervisory clinical nurse who, in turn, reported to Dr. Alsan J. Bellard, a medical doctor.

DYRS operated two juvenile detention centers: the "New Beginnings" facility and the "Youth Services Center" (YSC), each of which had a medical unit staffed by nurses and overseen by Dr. Bellard. For the first few months of her employment, appellant was placed in the medical unit of New Beginnings. In October 2015, however, appellant was transferred to the YSC medical unit, where she worked for the remainder of her DYRS employment.

At trial, Nurse Jackson testified that she and Dr. Bellard had jointly decided to transfer appellant for several reasons: appellant's conflicts with some of the nurses and correctional officers at New Beginnings; appellant's reports of "feeling bullied" there; and Nurse Jackson's concern that appellant not "be in that type of environment anymore." The Personnel Request Form (PRF) submitted to Human Resources by Nurse Jackson and Dr. Bellard stated that the decision was made for the "morale of the staff and for a safe working environment."

A. First TB Disclosure and Reactions

At trial, appellant testified that, on December 23, 2015, she had performed the intake screening for a youth who did not speak English but, through an interpreter, reported that he had been coughing blood. The youth added that he had been on a long course of medication for an infection he could not recall the name of, and that he had lost the medication before completing the course. Explaining that in "standardized TB training, coughing blood is, like, one of the biggest clues that somebody might have TB," appellant testified that she had been particularly concerned that the youth could have tuberculosis

because he had been on a long course of medication, and that his failure to complete the treatment meant he could have been infectious. Appellant then testified, more specifically, about her understanding of the DYRS TB protocols: If, upon completion of the intake screening – including a tuberculosis skin test (PPD) – there is some suspicion that the youth may have TB, the nurse practitioner is supposed to order transport for the youth to a hospital facility until TB can be ruled out by conducting a chest X-ray.

Appellant further testified that after she "had got as much of the information from [the youth] as [she could]," she informed the supervisory nurse on duty that "she had a concern" because the youth had been coughing blood and had been on a course of medication that he had not completed. Appellant also testified that, apart from conducting the initial interview and "maybe" placing his PPD, she did not perform any assessment of the youth.

According to appellant, she also had spoken with Nurse Jackson about the youth. Appellant testified that this "conversation started around the 25th" of December (two days after the initial screening and placement of the PPD). Appellant further testified that by the time of this conversation, she was concerned about the youth's PPD reading, "which was 15 millimeters’ induration,⁶ [and] was considered positive."⁷ Appellant added that she had asked Nurse Jackson what the follow-up should be: "what should have happened and what should we do?" Nurse Jackson wasn't sure, and, said appellant, each agreed to try to find out more information.

In sum, as to the nature and timing of appellant's information, she testified that after learning the result of the PPD test she had administered on December 23, she informed Nurse Jackson "around the 25th" of December that the youth had a 15 millimeter reaction, indicating a "positive" test for tuberculosis

.

Nurse Jackson testified, however, that she did not recall a December 25 conversation with appellant, but in response to a hypothetical about a youth coughing up blood, Nurse Jackson agreed that a "further investigation" would have been the proper response because the youth's condition could have been "numerous things," including "bronchitis

" or "congestion." Nurse Jackson then testified that "we have a lot of kids that come in with bronchitis," and "[w]e can't put every kid on isolation because they're coughing up some type of blood in their sputum."

Dr. Bellard then testified, confirming that "if a kid comes in coughing blood ... I would need to get additional history and conduct a thorough physical exam." But, he added, "[m]ore often than not, particularly in this age range, a report of coughing up blood could come from a post-nasal sinus drip" or other ailments, particularly bronchitis

, "because a lot of our kids are heavy smokers." Dr. Bellard further testified that tuberculosis is very rare, especially in otherwise healthy young people; that it tends to affect small infants or the very elderly; and that, to his knowledge, no youth with active tuberculosis had ever been admitted to YSC. Dr. Bellard also explained that there is a difference between active tuberculosis, which is contagious, and latent tuberculosis, which is not. People with active tuberculosis "look sick" and have a cough, night sweats, and fever, he said, whereas people with latent tuberculosis are considered "perfectly fine" and have "essentially just had a reaction to the [tuberculosis skin ] test" known as the PPD.

In response to appellant's concerns about the first youth, Dr. Bellard testified that he had reviewed the youth's chart and spoken over the phone with one of the nurse practitioners involved in his care;⁸ that the nurse practitioner had explained to Dr. Bellard "what her rationale was for not making the decision" to isolate the youth; and that he had agreed with her treatment and care plan. Dr. Bellard then emphasized, more specifically, that the nurse practitioner had informed him that the youth had a history of coughing blood but did not have any recent weight loss; currently had no fevers; "sounded excellent" during the physical exam; and had "all of the indicators that the kid was normal and noncontagious."

On the other hand, an email from Dr. Bellard on December 29, 2015, to two nurse practitioners, including the one he believed he had spoken with over the phone, added confusion. In the email, he noted that he had been informed "[t]oday " that the youth had "both a positive PPD and positive quantiferon" (emphasis added).⁹ He emphasized that "said youth reported ‘coughing up blood,’ which is information that was not shared with me." Dr. Bellard then asked in his email: "Is there any reason that our index of suspicion¹⁰ for TB was not raised when the youth reportedly was coughing up blood?" And the email had a subject line, "Youth with Likely Tuberculosis

," adding an "importance" level of "[h]igh."

At trial, however, when asked to clarify his December 29 email, Dr. Bellard explained that he was referring to the fact that until that day he had not been informed that the youth was "actively coughing up blood," not merely someone with a "history of coughing up blood," and that Dr. Bellard, therefore, had been asking the nursing staff why the level of suspicion "wasn't raised further " based on this information (emphasis added). Dr. Bellard also reiterated that the youth had no other documented symptoms of tuberculosis

.

B. Events Following the First Disclosure

On January 6, 2016, appellant submitted a same-day leave request to Nurse Jackson, which she denied. Nurse Jackson forwarded her denial to Dr. Bellard, explaining that she...