                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA


ROGER BELL,

              Plaintiff,

      v.                                            Civil Action No. 1:18-cv-01331 (CJN)

EAST RIVER FAMILY
STRENGTHENING COLLABORATIVE,
INC.,

              Defendant.


                                 MEMORANDUM OPINION

       Roger Bell brings this action against his former employer, East River Family

Strengthening Collaborative, Inc., asserting violations of the Employees of District Contractors

and Instrumentality Whistleblower Protection Act (“DCWPA”), defamation, and intentional

interference with economic interest. See generally Compl., ECF No. 1. East River has filed a

Motion for Summary Judgment on all claims. See generally Def.’s Mot. for Summ. J. (“Def.’s

Mot.”), ECF No. 17. For the reasons below, the Court grants East River’s Motion.

                                      I.      Background

       Bell was employed by East River as the Project Coordinator of the Credible Messenger

Initiative, which provides mentoring to at-risk and formerly incarcerated youth in the custody of

the District of Columbia. See Def.’s Mem. of P. & A. in Supp. of Def.’s Mot. (“Def.’s Mem.”)

at 1, ECF No. 17 at 4; Def.’s Statement of Material Facts (“Def.’s SOMF”) ¶ 1, ECF No. 17 at

48; Pl.’s Resp. to Def.’s SOMF (“Pl.’s Resp.”) ¶ 1, ECF No. 21-56. The Initiative is funded by

the D.C. Department of Youth Rehabilitation Services (“DYRS”). Def.’s SOMF ¶¶ 1–2; Pl.’s

Resp. ¶¶ 1–2. In his role as Project Coordinator, Bell shared responsibility for managing East



                                                1
River’s contract with DYRS, supervising staff, reviewing time records, overseeing daily

operations, and reporting to and informing DYRS of the status of Initiative efforts and any

program-related issues or problems. Def.’s SOMF ¶ 1; Pl.’s Resp. ¶ 1.

       After an internal investigation revealed Bell had engaged in improper conduct, East River

terminated his employment on April 18, 2018. Def.’s SOMF ¶¶ 7–8; Pl.’s Resp. ¶¶ 7–8. East

River states that it initiated the investigation after an employee, Danielle Crouch, alleged that she

and Bell had engaged in a scheme of padding her timesheets and splitting the amount she was

overcompensated. Def.’s SOMF ¶ 8; Pl.’s Resp. ¶ 8. According to Crouch, Bell gave her blank

timesheets to sign, Bell filled out the hours and submitted the timesheets, and then once East

River paid Crouch, Crouch would cash the check and split the extra pay with Bell. Aff. of

Danielle Crouch (“Crouch Aff.”) ¶¶ 4–6, ECF No. 17-9. East River states that after it conducted

the investigation, it consulted with counsel who advised East River that it had cause to terminate

Bell. Def.’s SOMF ¶ 9; Pl.’s Resp. ¶ 9.1

       Bell disputes that the investigation supported Crouch’s claims, Pl.’s Resp. ¶ 8, and asserts

that he was fired because of complaints he made to DYRS about East River’s operations—not

the internal investigation. Bell outlines four separate complaints he made about East River. Pl.’s

Mem. of P. & A. in Opp’n to Summ J. (“Pl.’s Opp’n”) at 8–14, ECF No. 21. First, he says that

he complained to DYRS about East River’s failure to expend funds that, in Bell’s view at least,

should have been spent on program activities. See Pl.’s Resps. to 1st Set of Interrogs. (“Pl.’s

ATI”) at 15–18, ECF No. 17-1; Pl.’s Statement of Facts Demonstrating Genuine Disputes of

Material Facts Necessitating Trial (“Pl.’s SOMF”) ¶ 19, ECF No. 21-55; see also Pl.’s Opp’n


1
 Bell disputes whether the attorneys “advised [East River] to terminate [him] or that [East
River’s] counsel conducted any independent inquiry that resulted in advice to terminate [him].”
Pl.’s Resp. ¶ 9.


                                                 2
at 8–10. Second, Bell claims that he disclosed East River’s failure to make timely and

appropriate mileage reimbursements. See Pl.’s SOMF ¶¶ 42–44; see also Pl.’s Opp’n at 8.

Third, Bell claims he reported that staff were misreporting their time, which, in turn, meant that

the Initiative was failing to abide by the DYRS grant’s hours requirements. Pl.’s ATI at 18; see

also Pl.’s Opp’n at 10–12. Finally, he claims that he reported that East River missed payroll on

November 30, 2017, an event that East River does not dispute. Pl.’s ATI at 16–17; Def.’s Mem.

at 11–13.

       Bell further claims that, following his termination, Mae Best, East River’s Executive

Director, told various individuals, including officials at DYRS and Progressive Life (a DYRS

fiscal mediator that administered funds for East River’s grant), that East River had terminated

Bell’s employment because of Crouch’s fraud claim. See Pl.’s SOMF ¶¶ 215–21. Bell further

claims that DYRS then commented to heads of other community development and support

organizations that he had been fired because of the alleged fraudulent scheme. Id. ¶ 222. Bell

claims that these statements have caused him reputational harm. Id.

       Bell asserts violations of the DCWPA, defamation, and intentional interference with

economic interest. See generally Compl. After discovery, East River moved for summary

judgment on all claims. See generally Def.’s Mot. Bell opposes summary judgment on his

DCWPA and defamation claims but concedes “that there is insufficient evidence of damages for

him to be able to prevail” on his intentional interference with economic interest claim. Pl.’s

Opp’n at 36–37. As a result, judgment will be entered in East River’s favor on that claim.

                                     II.     Legal Standard

       Summary judgment is appropriate “if the movant shows that there is no genuine dispute

as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). “A dispute about a material fact is not ‘genuine’ unless ‘the evidence is such that a


                                                 3
reasonable jury could return a verdict for the nonmoving party.’” Mogenhan v. Napolitano, 613

F.3d 1162, 1165 (D.C. Cir. 2010) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986)). “When the moving party does not bear the burden of persuasion at trial, its burden ‘may

be discharged by “showing”—that is, pointing out to the district court—that there is an absence

of evidence to support the nonmoving party’s case.’” Mokhtar v. Kerry, 83 F. Supp. 3d 49,

60–61 (D.D.C. 2015) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). After the

moving party has met its burden, the nonmoving party must designate “specific facts showing

that there is a genuine issue for trial” to defeat the motion. Celotex, 477 U.S. at 324. Though the

Court “may not resolve genuine disputes of fact in favor of the party seeking summary

judgment,” Tolan v. Cotton, 572 U.S. 650, 656 (2014) (citation omitted), the nonmoving party

must show more than “[t]he mere existence of a scintilla of evidence in support of ” its position,

Anderson, 477 U.S. at 252. In other words, “there must be evidence on which the jury could

reasonably find for [the nonmoving party].” Id. “[T]he determination of whether a given factual

dispute requires submission to a jury must be guided by the substantive evidentiary standards

that apply to the case.” Id. at 255.

       “Credibility determinations, the weighing of evidence, and the drawing of legitimate

inferences from the facts are jury functions, not those of a judge.” Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000) (quoting Anderson, 477 U.S. at 255). But

the nonmoving party’s opposition must consist of more than unsupported allegations or denials

and must be supported by facts from affidavits, declarations, or other competent evidence that

show there is a genuine issue for trial. See Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324.

       Of particular relevance here, “[s]ummary judgment for a defendant is most likely when a

plaintiff’s claim is supported solely by the plaintiff’s own self-serving, conclusory statements.”




                                                 4
Bonieskie v. Mukasey, 540 F. Supp. 2d 190, 195 (D.D.C. 2008) (citation omitted). “That is

because ‘conclusory allegations’ and ‘unsubstantiated speculation,’ whether in the form of a

plaintiff’s own testimony or other evidence submitted by a plaintiff to oppose a summary

judgment motion, ‘do not create genuine issues of material fact.’” Mokhtar, 83 F. Supp. 3d at 61

(citation omitted).

                                        III.    Analysis

                               A.      The Whistleblower Claim

       The DCWPA prohibits a supervisor from “threaten[ing] to take or tak[ing] a prohibited

personnel action or otherwise retaliate against an employee [1] because of the employee’s

protected disclosure or [2] because of an employee’s refusal to comply with an illegal order.”

D.C. Code § 2-223.02(a) (2020). The DCWPA defines a “protected disclosure” as

               [a]ny disclosure of information, not specifically prohibited by
               statute, by an employee to a supervisor or to a public body that the
               employee reasonably believes evidences:

               (A)    Gross mismanagement in connection with the administration
                      of a public program or the execution of a public contract;

               (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.

Id. § 2-223.01(7).




                                                5
         The DCWPA itself incorporates a burden-shifting framework, D.C. Code. § 2-223.03(b),2

and the D.C. Court of Appeals has applied the burden-shifting framework of McDonnell Douglas

Corp . v. Green, 411 U.S. 792 (1973), to DCWPA cases. Johnson v. District of Columbia, 935

A.2d 1113, 1118 (D.C. 2007). As a result, at summary judgment, a plaintiff alleging a violation

of the DCWPA must make “a proffer of admissible evidence that their ‘protected activity’ . . .

was a ‘contributing factor’” to the alleged prohibited personnel action, “measured under a ‘but

for’ analysis.” Id. at 1118–19. Assuming such evidence exists, the burden shifts to the

defendant to demonstrate “that the alleged action would have occurred for legitimate,

independent reasons even if the [plaintiff] had not engaged in activities protected by the

[DCWPA].” D.C. Code § 2-223.03(b). If the defendant meets that burden, the plaintiff bears the

burden of proving that the defendant’s explanation is pretextual. See Johnson, 935 A.2d at 1118.

         “A ‘protected disclosure’ under the [DCWPA] is one that the employee ‘reasonably

believes’ evidences one or more of the circumstances delineated” in the Act. Wilburn v. District

of Columbia, 957 A.2d 921, 925 (D.C. 2008). “An employee’s ‘reasonable belief turns on

whether a disinterested observer with knowledge of the essential facts known to and readily

ascertainable by the employee could reasonably conclude that the actions . . . evidence illegality,

gross abuse, etc.” Harris v. D.C. Water & Sewer Auth., 172 F. Supp. 3d 253, 261 (D.D.C. 2016)


2
    D.C. Code section 2-223.03(b) reads:

                 In a civil action or administrative proceeding, once it has been
                 demonstrated by a preponderance of the evidence that an activity
                 proscribed by § 2-223.02 was a contributing factor in the alleged
                 prohibited personnel action against an employee, the burden of
                 proof shall be on the employing District instrumentality or
                 contractor, or the person or entity that employed the security officer,
                 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.


                                                   6
(citation omitted); see also Zirkle v. District of Columbia, 830 A.2d 1250, 1259–60 (D.C. 2003)

(adopting the disinterested-observer test). “To establish a ‘protected disclosure’ on the basis of

‘gross mismanagement’ . . . [a plaintiff] must show ‘ a management action or inaction that

creates a substantial risk of significant adverse impact on an agency’s ability to accomplish its

mission.” District of Columbia v. Poindexter, 104 A.3d 848, 855 (D.C. 2014). “Gross waste of

public funds is a more than debatable expenditure that is significantly out of proportion to the

benefit reasonably expected to accrue to the government.” Id. at 857 (citation omitted). And

“[a]buse of authority occurs when there is an arbitrary or capricious exercise of power by [an]

. . . official or employee that adversely affects the rights of any person or that results in personal

gain or advantage to himself or to preferred other persons.” Id.

       “A purely subjective perspective of an employee is not sufficient even if shared by other

employees.” Zirkle, 830 A.2d at 1260 (citation omitted). “‘[T]he basis for determining the

nature of . . . charges’ that a putative whistleblower has made ‘are the statements . . . in [his]

complaint’ to a supervisor or to a public body, ‘not [his] subsequent characterization of those

statements’ in litigation.” Wilburn, 957 A.3d at 925 (citation omitted). And the DCWPA

requires that “an employee must have had such a belief at the time the whistle was blown.”

Freeman v. District of Columbia, 60 A.3d 1131, 1143 (D.C. 2012).

       Accordingly, for Bell’s complaints to constitute protected disclosures, he must

demonstrate that the facts known to him at the time would reasonably have led a disinterested

observer to conclude that East River was engaged in gross mismanagement, gross misuse or

waste of public resources, or the like. Bell argues that he made four such protected disclosures.3



3
 Bell limits his arguments to four theories of protected disclosures despite pointing to others at
other points in the litigation. See Pl.’s Opp’n at 8 & 8 n.1.



                                                   7
       1.      Mileage reimbursements

       East River argues that Bell waived reliance on his alleged disclosure regarding mileage

reimbursement because Bell failed to include it in response to an interrogatory that specifically

sought his theories of protected disclosures and because Bell’s complaints about mileage

reimbursements could never “rise to the level of protected whistleblower conduct.” Def.’s Reply

at 7, ECF No. 25.4 Regardless of whether he may have waived this theory, Bell does not make

any argument in support of it. See Pl.’s Opp’n at 8 (discussing only East River’s alleged waiver).

And in any event, it is hard to see how Bell’s purported complaint about East River’s failure to

make timely and appropriate mileage reimbursements could rise to the level of a protected

disclosure under the DCWPA. See D.C. Code § 2-223.01(7)(D) (defining “protected disclosure”

as a “violation . . . of a term of contract between the District government and a District

government contractor which is not of a merely technical or minimal nature” (emphasis added)).

       2.      Missed payroll

       Bell also relies on his disclosure that East River missed payroll on one occasion in

November 2017. Bell argues that “[e]ven a one-day delay in pay could have easily resulted in

late rent or mortgage payments and bounced bill payments.” Pl.’s Opp’n at 12. And he contends




4
  In his Opposition, Bell asserts that East River “failed to address [his] complaints about East
River’s failure to reimburse his reasonable mileage expenses.” Pl.’s Opp’n at 8 (citation
omitted). This, in Bell’s view, constitutes waiver of the argument that these complaints are not
protected under the DCWPA. Id. East River counters by noting that Bell did not raise the theory
of protected disclosure in his responses to East River’s interrogatories “despite a specific
interrogatory seeking that information.” Def.’s Reply at 7. Because Bell did not include this
theory in his response to East River’s interrogatory that asked Bell to “[i]dentify and provide
detailed descriptions of each and every occasion during your employment with defendant that
you contend constituted or was a ‘protected disclosure’ as defined in the [DCWPA],” Pl.’s ATI
at 18, East River did not waive its ability to counter that argument in its Reply.


                                                 8
that “the failure to make payroll could have led to an exodus of employees who were already

wary of continuing to perform their work.” Id. (citations omitted).

       The Court disagrees that this disclosure was sufficient to trigger the DCWPA. East River

does not dispute that it missed its November 2017 payroll by four days. But Bell’s speculation

of the fallout from missing payroll one time does not rise to the level of gross mismanagement,

gross misuse of public funds, or abuse of authority.

       Bell theorizes about a significant impact on East River in the way of “an exodus of

employees” that “were already wary of continuing to perform their work,” which he claims

equates to gross mismanagement. Pl.’s Opp’n at 12 (citing Pl.’s SOMF ¶¶ 27–29, 33, 39). But

the facts (or at least the facts on which Bell relies) do not support his claim. Bell does not

respond to East River’s explanation for its one-time delay nor does he explain why a

disinterested observer would reasonably conclude why a single delay would constitute gross

mismanagement. Instead, Bell points to deposition testimony and his own interrogatory

responses that stand, at most, for his own speculation that employees might leave because one

paycheck was late.

       Bell also attempts to argue that this incident constituted a gross waste of public funds, but

he puts forward no facts that this incident was “significantly out of proportion to the benefit

reasonably expected to accrue to the government,” Poindexter, 104 A.3d at 855. While he does

argue that “East River’s communications to employees about the missed pay made it appear that

East River was being untruthful,” Pl.’s Opp’n at 13 (citing Pl.’s SOMF ¶ 72), and that “[a]

reasonable person in [his] position certainly could have expected that East River would not be

paying salaries into the foreseeable future,” id., he ignores East River’s repeated communications

about the missed payroll and the fact that paychecks were distributed one business day after East




                                                  9
River alerted employees to the error. Pl.’s SOMF ¶¶ 72–73. Bell also does not counter East

River’s explanation for the delay: that a major funder was late in making its payment under the

grant. Def.’s Reply at 8 (citing Dep. of Mae Best at 56–57, ECF No. 25-3).5

        3.      Non-expenditure of activity funds

        Bell also argues that he complained that East River failed to expend activity funds, and

that this failure was either a violation of a term of a contract with the District or, in the

alternative, gross mismanagement. See D.C. Code § 2-223.01(7)(A), (D); see also Pl.’s Opp’n at

8–10. As for the contract argument, Bell did not know whether the failure to spend activity

funds was a breach of contract. See Pl.’s Opp’n at 9 (citing Pl.’s SOMF ¶¶ 19–22, 24, 35, 56).

Indeed, Bell conceded at his deposition that he had never seen the contract, did not have personal

knowledge of its terms, and was not involved with the budget. Dep. of Roger Bell at

39:9–44:14, ECF No. 21-6.

        It is thus doubtful that Bell could form a reasonable belief that East River was in breach

of its contract with DYRS. To be sure, Bell claims knowledge of the contractual requirements

based on conversations with DYRS employees. But Bell does not put forward any evidence to

permit the conclusion that, based on the facts known to him at the time, East River’s actions


5
  Bell mentions in his brief that this episode constituted an abuse of authority by East River, but
he does little to develop this argument, pointing to no facts indicating an “arbitrary or capricious
exercise of power” by East River “that adversely affect[ed] the rights of any person or that
result[ed] in personal gain or advantage to [East River] or to preferred other persons.”
Poindexter, 104 A.3d at 855. Rather, East River acknowledged the payroll delay and
communicated with employees until the issue was remedied, e.g., Pl.’s SOMF ¶ 72, steps that
can hardly be considered an “arbitrary or capricious exercise of power,” Poindexter, 104 A.3d at
855.

Bell also briefly alleges that the disclosure about missed payroll is protected because it was a
violation of D.C. law that was not technical or minimal in nature. Pl.’s Opp’n at 12. Despite the
argument not being fully developed, it is hard to see how a one-business day delay in processing
payroll was anything other than minimal.


                                                   10
reasonably evidenced a violation of a contract term that required the activity funds to be spent.

Bell testified during his deposition that the DYRS employee “was, like, I saw the budget, I mean,

I saw what remained in the budget, and it’s just—you guys aren’t utilizing it.” Id. at

169:18–170:5. And he stated that the DYRS managers stated that they were “hearing you guys

don’t have gift cards.” Id. at 172:18–19. To which he responded, “‘Yeah, we don’t,’ you know.

Do I need to call? Like I told them, you can call them. I mean, we request them. We’re just not

getting them.” Id. at 172:20–173:1. These statements, without more, could not form the basis

for a reasonable belief that East River was breaching its contract. And as to any argument that

Bell’s disclosure was more generally about East River’s failure to spend funds allocated to it,

Bell concedes that the DYRS employee informed him of that fact, such that any future disclosure

by Bell would not be protected under the DCWPA. See Wilburn, 957 A.2d at 926 (emphasizing

that DCWPA protection is meant to extend to employees who possess knowledge of concealed

wrongdoing).

       Alternatively, Bell argues that this complaint satisfies the DCWPA’s “gross

mismanagement” prong. Pl.’s Opp’n at 10. But Bell offers essentially no argument or facts to

establish how East River’s failure to spend activity funds, and to instead promote free events,

could have constituted gross management. At most, Bell has established an issue for trial about

whether the funds were being spent. He does not even attempt to explain how using free

activities created a substantial risk of adverse impact on East River’s ability to accomplish its

mission of engaging with children in the community. Instead, Bell appears to have disagreed

with East River over its purported policy of promoting free events over paid events—a

disagreement that the DCWPA does not protect. E.g., Zirkle, 830 A2d at 1260 (“The [DCWPA]




                                                 11
is not a weapon in arguments over policy . . . .” (quoting Lachance v. White, 174 F.3d 1378,

1381 (Fed. Cir. 1999)).

       4.      Stealing and misreporting of employees’ time

       Bell also asserts that his “complaints about staff stealing time and failing to abide by

requirements for engagement hours under the Grant . . . implicated violations of the grant, or

gross misuse or waste that created a substantial risk of significant adverse impact on [East

River].” Pl.’s Opp’n at 10. In particular, relying on his own deposition testimony, Bell provides

a rough personal estimate about the amount of time that he alleges three employees were stealing

or misreporting, but he does not support his claim with any documentation or other evidence and

does not explain whether other evidence is otherwise unavailable. To be sure, Bell points to

evidence indicating that other East River employees were aware that Bell was concerned with

whether certain employees were working their assigned hours, e.g., Pl.’s SOMF ¶¶ 63–64,

67–69, but that evidence, without more, does not help him establish a prima facie case. Outside

of his own statements, Bell does not explain (through providing an accounting or otherwise) how

the allegedly stolen hours created “a substantial risk of significant adverse impact on [East

River’s] ability to accomplish its mission,” Poindexter, 104 A.3d at 855, were “significantly out

of proportion to the benefit reasonably expected to accrue to the government,” id., or established

a nontechnical or nonminimal breach of East River’s contract with DYRS. See Bonieskie, 540

F. Supp. 2d at 195 (“Summary judgment for a defendant is most likely when a plaintiff’s claim is

supported solely by the plaintiff’s own self-serving, conclusory statements.”).

                                 B.      The Defamation Claim

       East River also argues that it is entitled to summary judgment on Bell’s defamation

claim. To establish defamation under D.C. law, a plaintiff must show:




                                                12
                  (1) that the defendant made a false and defamatory statement
                  concerning the plaintiff; (2) that the defendant published the
                  statement without privilege to a third party; (3) that the
                  defendant’s fault in publishing the statement amounted to at
                  least negligence; and (4) either that the statement was actionable
                  as a matter of law irrespective of special harm or that its
                  publication caused the plaintiff special harm.

Williams v. District of Columbia, 9 A.3d 484, 491 (D.C. 2010) (citation omitted). “A statement

that falsely imputes a criminal offense is defamatory per se.” Hall v. District of Columbia, 867

F.3d 138, 149 (D.C. Cir. 2017) (citing Smith v. District of Columbia, 399 A.2d 213, 220 (D.C.

1979)) (other citation omitted). “[A]n allegedly defamatory remark must be more than

unpleasant or offensive; the language must make the plaintiff appear ‘odious, infamous, or

ridiculous.’” Howard Univ. v. Best, 484 A.2d 958, 989 (D.C. 1984) (citation omitted). “If it

appears that the statements are at least capable of a defamatory meaning, whether they were

defamatory and false are questions of fact to be resolved by the jury.” Moss v. Stockard, 580

A.2d 1011, 1023 (D.C. 1990) (citation omitted).

       Bell claims that “East River defamed him when it told DYRS and Progressive Life and

InnerCity officials that [he] was terminated because of his involvement in the fraudulent scheme

that Ms. Crouch had alleged.” Pl.’s Opp’n at 32.6 For its part, East River concedes that it made

“[s]tatements regarding the investigation and [Bell’s] discharge were shared with representatives

of DYRS . . . and/or the government’s fiduciary manager, Progressive Life,” Def.’s SOMF ¶ 12.

But East River argues that Bell could not have been defamed because these statements were




6
  In his Complaint, Bell articulates the defamatory statement as follows: that he “had been fired
from . . . East River for being actively involved in a scheme to defraud the District of Columbia
government by stealing funds that were intended to be used on helping at-risk children.” Compl.
¶ 44.



                                               13
“substantially true.” Def.’s Mem. at 26 (citing Lohrenz v. Donnelly, 223 F. Supp. 2d 25, 59

(D.D.C. 2002)).

       “To successfully assert this defense, [East River] must prove that the statements made

were substantially true, and that any minor misstatements of fact or inaccuracies of expression

were immaterial.” Lohrenz, 223 F. Supp. 2d at 59 (citing Moldea v. N.Y. Times, 22 F.3d 310,

318 (D.C. Cir. 1994)). And “‘[s]ubstantially true’ means that the ‘gist’ of the statement is true or

that the statement is substantially true, as it would be understood by its intended audience.”

Benic v. Reuters Am., Inc., 357 F. Supp. 2d 216, 221 (D.D.C. 2004) (citation omitted). In

support of its argument, East River points to (1) Crouch’s affidavit, explaining Bell’s involving

in the scheme to inflate her hours and detailing how she informed East River’s management

team, see generally Crouch Aff.; (2) evidence that all four of East River’s decisionmakers found

her report credible, Def.’s SOMF ¶ 8 (citations omitted); and (3) the human resources

investigation into the behavior, which led to his termination, id. ¶ 9. Bell counters that, taking

the evidence in the light most favorable to him, a jury could conclude that the leadership knew

Crouch’s claims were false and thus that their conclusion about his involvement in the fraudulent

scheme was incorrect. Pl.’s Opp’n at 33. He supports his claim by criticizing East River’s

investigation as a whole, including by attacking Crouch’s and other employees’ credibility,

pointing out that minor details in and descriptions of the investigation were not accurate,

asserting that the investigation was not as comprehensive as it should have been, claiming that

members of East River’s leadership team held a bias against him in favor of other employees,

and arguing that East River falsified numerous statements and affidavits—among other items.

       To say that the record is muddled in this case would be an understatement. But even

taking the record in the light most favorable to Bell, summary judgment is appropriate. Bell




                                                 14
argues that he was defamed when East River “told DYRS and Progressive Life and InnerCity

officials that [he] was terminated because of his involvement in the fraudulent scheme that

Ms. Crouch had alleged.” Pl.’s Opp’n at 32. Bell, however, fails entirely to establish that

anything in this statement was false. Indeed, Bell does not dispute that the investigation

occurred and that East River concluded, based on its review of the facts collected and after

consultation with two attorneys, that he was involved in the scheme and should be terminated.

Bell instead focuses his argument on disputing the intricacies of the underlying investigation that

took place at East River and challenging the reasonableness of the conclusion reached by East

River’s management. Bell’s critique of the investigation itself, points at most to “minor

misstatements of facts or inaccuracies of expression, ” Lohrenz, 223 F. Supp. 2d at 59 (citation

omitted), whereas the “gist” of the allegedly defamatory statement was true: Bell was fired after

East River conducted an internal investigation that led to East River’s conclusion that Bell was

involved in an alleged fraudulent scheme.

                                       IV.     Conclusion

       Because no reasonable juror could find, based on the present record, that Bell made a

protected disclosure under the DCWPA or that East River made a defamatory statement about

Bell, East River is entitled to summary judgment on both claims. East River’s Motion for

Summary Judgment is therefore GRANTED. An order consistent with this Memorandum

Opinion will be issued contemporaneously.


DATE: August 11, 2020
                                                             CARL J. NICHOLS
                                                             United States District Judge




                                                15
