Wilburn v. District of Columbia

• Decision Date: 09 October 2008
• Docket Number: No. 07-CV-287.,07-CV-287.
• Citation: 957 A.2d 921
• Parties: Nadine WILBURN, Appellant, v. DISTRICT OF COLUMBIA, et al, Appellees.
• Court: D.C. Court of Appeals

957 A.2d 921

Nadine WILBURN, Appellant, v. DISTRICT OF COLUMBIA, et al, Appellees.

No. 07-CV-287.

District of Columbia Court of Appeals.

Argued September 5, 2008.

Decided October 9, 2008.

Gregory L. Lattimer, Washington, for appellant.

Edward E. Schwab, Deputy Solicitor General, Ret., with whom Linda Singer,

Attorney General for the District of Columbia at the time the brief was filed, Todd S. Kim, Solicitor General for the District of Columbia, and Donna M. Murasky, Acting Deputy Solicitor General, were on the brief, for appellee District of Columbia.

Joel P. Bennett was on the brief for appellee Kelvin Robinson.

Before KRAMER, FISHER and THOMPSON, Associate Judges.

THOMPSON, Associate Judge:

Appellant Nadine Wilburn served for a time as the Interim Director of the District of Columbia Office of Human Rights ("OHR") and, in 2003, she was on the short list of candidates being considered for appointment as permanent OHR Director. After then-Mayor Anthony Williams appointed someone else to the position, Wilburn sued appellees—the District of Columbia and Kelvin Robinson, the Mayor's Chief of Staff—under the District of Columbia Whistleblower Protection Act (the "DC-WPA").¹ She alleged that Robinson engineered Wilburn's non-appointment in retaliation for statements she made to the Council of the District of Columbia (the "Council") criticizing the performance of Curtis Lewis & Associates ("CLA"), a law firm that held a contract with OHR to perform reviews of discrimination complaints and draft determination letters.² The Superior Court granted defendants'/appellees' motion to dismiss for failure to state a claim, holding that the complaint did not causally link Wilburn's alleged protected disclosure to the personnel action complained of, and thus failed to state a prima facie case of retaliation.³ We affirm the judgment dismissing the complaint, although on a basis different from the one on which the trial court relied. Specifically, we hold that Wilburn's statements to the Council did not constitute a "protected disclosure" within the meaning of the DC-WPA.⁴

I.

Under its contract with OHR, CLA was to work on a backlog of pending cases and write determination letters addressing whether probable cause existed to pursue claimants' discrimination complaints. In July 2002, in her capacity as Interim Director of OHR, Wilburn decided not to exercise OHR's option to renew the CLA contract for the fiscal year beginning October 1, 2003.

On April 9, 2003, Wilburn responded in writing to inquiries from Councilmember Jim Graham in advance of an April 11, 2003 Council hearing on OHR's budget. In answer to the question, "What, in your opinion, was the level of quality of the investigations and letters of determination processed by Curtis Lewis & Associates?," Wilburn stated:

I have only personally reviewed three cases Curtis Lewis & Associates worked on. In those three cases, the quality of work was below average because the incorrect legal standard was utilized in two cases, and issues raised in the complaints were not investigated. On July 16, 2002, the Director's Special Assistant completed a Summary Evaluation of Curtis Lewis & Associates, which I reviewed and signed as the OHR's Contracting Officer and which in turn was forwarded to the District of Columbia Office of Contracts and Procurement. Although the evaluation acknowledged that Curtis Lewis & Associates met the contractual requirements in four of the eight criteria rated, Curtis Lewis & Associates marginally met the contract requirements in four of the eight criteria rated and received an overall rating of "poor." Under the Office of Contract and Procurement's guidelines, a rating of "poor" meant "[t]he performance [of the contractor] was simply marginal, and just barely met the contractual requirements. There are, or were, deficiencies in the overall performance that the contract needs to address. Generally, there were several concerns with the contractor's performance, quality and service.

Wilburn asserts that the foregoing response was a protected disclosure within the meaning of the DC-WPA, and she also claims that she made protected disclosures to the Council at a March 8, 2003 oversight hearing and in response to a March 10, 2003 letter from Councilmember Graham (the texts of which do not appear to be in the record).

On April 23, 2003, Mayor Williams gave remarks at OHR's annual Fair Housing Symposium. During his speech, the Mayor stated that he was going to forward Wilburn's name to the Council for confirmation as the permanent Director of the OHR. Wilburn testified in her deposition that another OHR employee heard appellee Robinson respond to the Mayor's announcement by saying, "That will never happen." At the time, Robinson was a member of the committee advising the Mayor on the selection of a new OHR Director. Wilburn alleges that Robinson "deliberately thwarted the Mayor's selection of plaintiff as the OHR Director" in retaliation for her comments to the Council about CLA.⁵

II.

On February 1, 2007, the trial judge dismissed Wilburn's complaint, granting defendants'/appellees' Renewed Motion to Dismiss for Lack of Subject Matter Jurisdiction and Failure to State a Claim, filed September 19, 2006. Contemporaneously with the filing of that motion, defendants/appellees also filed a motion for summary judgment, and Wilburn filed an opposition on October 16, 2006. Thus, when the trial judge granted the motion to dismiss for failure to state a claim (and denied all other outstanding motions as moot), she ruled with a fully developed summary judgment record before her. Appellees' Supplemental Appendix contains a copy of the summary judgment record, i.e., appellees' motion for summary judgment with supporting memorandum and exhibits, and appellant's opposition thereto with supporting exhibits.

As an appellate court, we may affirm the trial court's dismissal order "on any basis supported by the record." Carney v. American Univ., 331 U.S.App. D.C. 416, 151 F.3d 1090, 1096 (1998). Accordingly, if we determine that summary judgment was warranted, we may affirm dismissal of the complaint on that basis. See Jones v. Amtrak, 942 A.2d 1103, 1106 (D.C.2008) (explaining that we may "affirm the judgment on a different ground than that relied upon by the court below if the appellant will suffer no procedural unfairness—that is, if [appellant] had notice of the ground upon which affirmance is proposed, as well as an opportunity to make an appropriate factual and legal presentation with respect thereto") (citation and internal punctuation marks omitted). In determining whether summary judgment was warranted, we "assess the record independently ... [and view it] in the light most favorable to the party opposing the motion." Scoville St. Corp. v. District TLC Trust, 1996, 857 A.2d 1071, 1075 (D.C.2004) (internal citation omitted). Summary judgment is appropriate "if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Id. (citation and quotations marks omitted).

III.

In order to establish a prima facie case under the DC-WPA on the basis of her statements to the Council, Wilburn had to allege facts establishing that she made a protected disclosure, that a supervisor retaliated or took or threatened to take a prohibited personnel action against her, and that her protected disclosure was a contributing factor to the retaliation or prohibited personnel action. See Crawford v. District of Columbia, 891 A.2d 216, 218-19 (D.C.2006). The trial court found that Wilburn had "not sufficiently alleged a connection" between her testimony about CLA and her non-appointment as OHR's permanent Director. In particular, the court found, there was "nothing in Plaintiff's filings which sufficiently indicates that Defendant Robinson even knew about Plaintiff's testimony concerning CLA."⁶ While the court's statements may have correctly characterized Wilburn's complaint standing alone, Wilburn's opposition to the summary judgment motion set out more detailed allegations (including facts that could support an inference that Robinson knew about Wilburn's comments to the Council, and details about the temporal proximity between Wilburn's comments to Councilmember Graham and the Mayor's about-face decision to select someone else as OHR Director). In light of those more detailed allegations about an alleged nexus between Wilburn's comments criticizing CLA and her non-appointment as OHR Director that were part of the record when the trial court ruled, we would be reluctant to affirm the dismissal of Wilburn's complaint on the ground cited by the trial judge. We are persuaded, however, that the dismissal must be affirmed on the alternative ground that Wilburn's statements to the Council about CLA cannot properly be regarded as a "protected disclosure" within the meaning of the DC-WPA.

This court has recognized that the federal whistleblower statute, 5 U.S.C. § 2302(b)(8),⁷ "is instructive in interpreting similar state statutes," including the DC-WPA. Crawford, 891 A.2d at 221 n. 12 (discerning no evidence "that the D.C. Council intended to apply a different liability standard in its whistleblower cases than that applied in all other federal and state whistleblower laws ..."). As the federal courts have recognized, "the purpose of whistleblower statutes is to encourage disclosure of wrongdoing to persons who may be in a position to act to remedy it, either directly by management authority, or indirectly as in disclosure to the press." Huffman v. Office of Pers. Mgmt., 263 F.3d 1341, 1349-50 (Fed.Cir.2001) (explaining that the "purpose of the statute is to encourage disclosures that are likely to remedy the wrong) (emphasis added) (citation omitted)."

A "protected disclosure" under the DC-WPA is one that the employee "reasonably believes" evidences one or more of the circumstances delineated in D.C.Code § 1-615.52(6)(A)-(E) ...