Kolowski v. Dist. of Columbia, No. 18-CV-783
Decision Date | 31 December 2020 |
Docket Number | No. 18-CV-783 |
Citation | 244 A.3d 1008 |
Parties | Jason KOLOWSKI, Appellant, v. DISTRICT OF COLUMBIA, Appellee. |
Court | D.C. Court of Appeals |
Donna McL. Murphy, with whom Judith L. Wheat, Washington, and Nikita Westwere on the brief, for appellant.
Holly M. Johnson, Senior Assistant Attorney General, with whom Karl A. Racine, Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General, and Carolyn S. Van Zile, Deputy Solicitor General, were on the brief, for appellee.
Before Glickman, Beckwith, and Easterly, Associate Judges.
Dr. Jason Kolowski is a former employee of the District of Columbia Department of Forensic Services ("DFS"). After Dr. Roger Mitchell, then-Interim Director of DFS, terminated his employment, Dr. Kolowski sued the District under the Whistleblower Protection Act ("WPA"),1 claiming that Dr. Mitchell terminated him because of a protected disclosure he had made in the course of his employment. The trial court granted the District's motion for summary judgment, finding there was no triable issue as to whether Dr. Mitchell was aware of Dr. Kolowski's protected disclosure. We affirm.
Unless noted otherwise, the following facts are undisputed for purposes of this appeal. In the spring of 2012, Dr. Kolowski began working as a DNA lab manager with the Metropolitan Police Department ("MPD"). At that time, and at all relevant times in this case, Dr. Kolowski was an at-will employee of the District.
Later that year, the District created DFS to provide forensic science services to multiple stakeholders. Those stakeholders included MPD, the Office of the Chief Medical Examiner, the Office of the Attorney General, the Department of Health, and the Fire and Emergency Medical Services Department. DFS absorbed MPD's DNA lab, and as part of the consolidation, Dr. Kolowski was transferred to DFS and later promoted to director of its DNA lab.
In 2014, a nonprofit organization tipped Dr. Kolowski that duplicate firearms were recorded twice in MPD's casework firearms database. Dr. Kolowski investigated the issue and discovered that dozens of firearms had been logged into the database twice as having been used in separate, unrelated crimes. In early 2015, Dr. Kolowski delivered a report containing that finding to DFS's then-General Counsel Christine Funk. Ms. Funk advised Dr. Kolowski that she would confirm and verify his findings and have her staff conduct a separate investigation.
On April 25, 2015, an independent accreditation board temporarily suspended the accreditation of DFS's DNA lab after discovering that the lab suffered from several quality control issues. In an effort to rehabilitate its reputation with its stakeholders, DFS cleaned house and reorganized: On April 30, Ms. Funk and three other high-ranking DFS officials either resigned or were terminated from their employment; Deputy Mayor Kevin Donahue met with the remaining managers of DFS (including Dr. Kolowski), reassured them that their jobs were safe, and charged them with bringing the DNA lab back to accreditation; and Mayor Muriel Bowser appointed Dr. Roger Mitchell to serve as DFS's Interim Director.
In a sworn declaration, Dr. Mitchell attested that his main goal "was to restore DFS's accreditation to perform DNA testing." To that end, Dr. Mitchell promoted Dr. Kolowski to serve as the Director of Special Operations. Dr. Kolowski's main task was to facilitate the outsourcing of DNA casework to a private lab. That work was vitally important, as the District points out, because District law at the time required DFS to "process all sexual assault forensic examination kits within 90 days from the date of receipt."2 Dr. Mitchell, according to Dr. Kolowski, suggested that if he did well in his new position, he could receive another promotion.
In early May of 2015, and as a result of the loss of accreditation in its DNA lab, DFS was "under chaos mode," Dr. Kolowski testified, "working feverishly to maintain and improve [its] relationship[ ] with [its] stakeholders." Dr. Mitchell took a highly involved role in that process: Dr. Mitchell met with Dr. Kolowski and his team "on a nearly daily basis," Dr. Kolowski testified, "to touch base on the ongoing progress of fixing" DFS's lack of accreditation; and Dr. Mitchell expected "all employees working under him in DFS leadership roles" to "br[ing] to his attention" "all information regarding the operation of DFS and [its] challenges," according to Randall Wampler, a former director at DFS.
On May 4, a little before 11:00 a.m., Dr. Mitchell received a letter via email from the United States Attorney's Office ("USAO") containing a number of questions, including several questions about the number of untested sexual assault kits still in the possession of DFS. The email noted that DFS's answers to its questions would "assist in today's meeting." It is unclear what "meeting" the email was referring to, but Dr. Mitchell was set to testify later that day at 2:00 p.m. in an oversight hearing before the Council. Dr. Mitchell sent an email to Karen Wiggins, the DFS Deputy Director of Quality and the former director of the firearms lab, asking her to work with Dr. Kolowski and Paul Reedy, the director of DFS's forensic labs, to compile information to answer the USAO's questions. Ms. Wiggins forwarded the email to Dr. Kolowski and Mr. Reedy, asking for answers by 1:00 p.m.
At the May 4 oversight hearing, Dr. Mitchell informed the Council that DFS was still in possession of seventy-seven untested sexual assault kits. That number was incorrect, both parties agree, because DFS actually was still in possession of eighty-five untested sexual assault kits.
Dr. Mitchell received the incorrect number of seventy-seven, he claims, from Dr. Kolowski. "After this incident," Dr. Mitchell attested, "I personally made the decision to terminate [Dr.] Kolowski's employment with DFS because I did not believe that he could competently manage the DNA lab." Dr. Kolowski received word of his termination on May 18, when he was summoned to the D.C. Human Resources Office. He was told at that time that he could either resign or be terminated without cause. He chose the latter.
Dr. Kolowski claims that the proffered rationale for his termination—Dr. Mitchell's belief in his lack of competence—was a pretext, and that Dr. Mitchell had no reservations about his competence whatsoever. Dr. Kolowski denies that he furnished the erroneous number of sexual assault kits to Dr. Mitchell prior to the May 4 oversight hearing. Dr. Kolowski claims that he gave Dr. Mitchell that number on May 6, and that he provided the correct number on May 7. Dr. Kolowski cites two emails dated: (1) May 7, 2015, in which he told various DFS officers, including Dr. Mitchell, to "discard the draft from 5/6/15," and updated them on the correct tally of untested sexual assault kits; and (2) May 8, 2015, in which he responded to Ms. Wiggins's May 4 email asking that he and Mr. Reedy answer the USAO's questions concerning the number of untested sexual assault kits. To further disprove Dr. Mitchell's competence rationale, Dr. Kolowski cites a conversation he had three days prior to his termination with Yi-Ru Chen, then-Chief Operations Officer of DFS, in which she told him that he was being considered for another promotion. Plus, Dr. Kolowski says, Deputy Mayor Donahue had told him that his job was secure. And finally, the Human Resources Office informed him that he was terminated without cause.
The real reason he was terminated, Dr. Kolowski alleges, was for a protected disclosure he had made to DFS's new General Counsel Robert Hildum, who had replaced Ms. Funk in early May, reported directly to Dr. Mitchell, and was subject to Dr. Mitchell's expectation of being apprised of all important issues facing DFS. In a private meeting on May 11—one week before his termination—Dr. Kolowski had informed Mr. Hildum about his prior disclosure to Ms. Funk of the issue with MPD's firearms database. Dr. Kolowski explained to Mr. Hildum that the issue was "limited to just the MPD Firearms Intake Database" and that he "did not find any of th[o]se issues in the current [database]."3
The District denies that this report by Dr. Kolowski had anything to do with his termination. It points to Dr. Mitchell's sworn declaration in which he attested that "[n]o one directed or suggested that I terminate [Dr.] Kolowski[,] [and that] it was my decision alone and within my authority as Interim Director of DFS"; that "DFS General Counsel Robert Hildum did not advise me or otherwise encourage me to terminate [Dr.] Kolowski"; that "[Mr.] Hildum never spoke to me about the MPD Firearm Casework Database, or any issues regarding firearms, at any time before, during, or after my tenure at DFS"; and that "I was unaware of Jason Kolowski's claims regarding MPD's Firearms Casework Database, or any issues regarding firearms, until [Dr. Kolowski] filed the present lawsuit in 2016, and I was informed of Plaintiff's allegation by counsel." Dr. Kolowski's termination, Dr. Mitchell attested, was based solely on his lack of belief in Dr. Kolowski's competence.
On May 18, 2016, Dr. Kolowski filed suit against the District under the WPA, claiming that Dr. Mitchell terminated him because of the protected disclosure he had made to Mr. Hildum. On the District's motion for summary judgment, the trial court found that there was no triable issue of fact on whether Dr. Mitchell was aware of the protected disclosure he made to Mr. Hildum. The court accordingly dismissed Dr. Kolowski's claim because "[e]vidence of Dr. Mitchell's awareness that Dr. Kolowski blew the whistle is ‘essential’ to Dr. Kolowski's claim."4
"We review a grant of summary judgment de novo , applying the same standard as the trial court."5 In order to prevail under that standard, the moving party "must demonstrate that there is no genuine issue of material fact and that it is...
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