                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


 CHRISTINA CONYERS WILLIAMS,

           Plaintiff,

      v.                                                    Civil Action No. 06-02076 (CKK)
 DISTRICT OF COLUMBIA,

           Defendant.


                                   MEMORANDUM OPINION
                                      (October 19, 2011)

       In this action, Plaintiff Christina Conyers Williams (“Williams”) claims that Defendant,

the District of Columbia (the “District”), retaliated against her in violation of the District of

Columbia Whistleblower Protection Act (the “DC-WPA”) for testimony that she provided before

the District of Columbia Council. The action is now in the pretrial stage of litigation and the trial

will begin on November 16, 2011. Currently before the Court is the District’s [158] Motion

Regarding Legal Basis for Defenses, through which the District asks the Court to instruct the jury

on three of its intended legal defenses at trial. Upon consideration of the parties’ submissions,

the relevant authorities, and the record as a whole, the Court shall GRANT-IN-PART and

DENY-IN-PART the District’s Motion.1




       1
          While the Court’s decision today is based on the record as a whole, its consideration
has focused on the following documents, listed in chronological order of their filing: Def.’s Mot.
Regarding Legal Basis for Defenses (“Def.’s Mem.”), ECF No. [158]; Pl.’s Opp’n to Def.’s Mot.
Regarding Legal Basis for Defenses (“Pl.’s Opp’n”), ECF No. [161]; Def.’s Reply in Further
Supp. of its Mot. Regarding Legal Basis for Defenses (“Def.’s Reply”), ECF No. [162].
                                      I. LEGAL STANDARD

        Before trial and with the district court’s leave, “a party may file and furnish to every other

party written requests for the jury instructions it wants the court to give.” FED . R. CIV . P.

51(a)(1). “Jury instructions are proper if, when viewed as a whole, they fairly present the

applicable legal principles and standards.” Czekalski v. LaHood, 589 F.3d 449, 453 (D.C. Cir.

2009) (internal quotation marks and citations omitted). The district court has considerable

discretion when crafting instructions, which should be exercised with an aim towards guiding the

jury “toward an intelligent understanding of the legal and factual issues involved in [its] search

for a proper resolution of the dispute.” 9C Charles Alan Wright & Arthur R. Miller, FEDERAL

PRACTICE AND PROCEDURE § 2556 (3d ed. 1995). So long as the instructions chosen are “legally

correct,” the district court is not required to use “any particular language.” Joy v. Bell Helicopter

Textron, Inc., 999 F.2d 549, 556 (D.C. Cir. 1993) (quoting Miller v. Poretsky, 595 F.2d 780, 788

(D.C. Cir. 1978)) (internal quotation marks omitted). Rather, “[i]t is sufficient if the substance of

the instruction as given be correct in law, adapted to the issues developed at trial and adequate

for guidance of the jury.” Heflin v. Silvertstein, 405 F.2d 1075, 1077 (D.C. Cir. 1968).

                                         II. DISCUSSION

        Through the present motion, the District seeks the Court’s imprimatur on three of its

intended defenses at trial. In particular, the District asks the Court to instruct the jury on the

contours of each defense. Below, the Court addresses each defense in turn.2


        2
         Parenthetically, the Court notes that Williams objects to the District raising certain
defenses on the basis that they were purportedly not specifically identified in the District’s
Answer, though she does not claim to have suffered any prejudice thereby. See Pl.’s Opp’n at 1-
2. Even setting aside the fact that the District’s ability to identify its defenses with particularity
was hampered in no small part by Williams’ “oblique explanations” of her own claims, Order

                                                   2
       A.      The “Ministerial or Nondiscretionary Investigation” Exception

       Under the DC-WPA, “[a] supervisor shall not take, or threaten to take, a prohibited

personnel action or otherwise retaliate against an employee because of the employee’s protected

disclosure.” D.C. CODE § 1-615.53(a) (2006). Here, the District asks the Court to instruct the

jury on the contours of what the Court shall refer to as the “ministerial or nondiscretionary

investigation” exception to the statutory definition of the term “prohibited personnel action.” At

the time the underlying conduct at issue in this case transpired, that term was defined as follows:

               “Prohibited personnel action” includes but is not limited to:
               recommended, threatened, or actual termination, demotion,
               suspension, or reprimand; involuntary transfer, reassignment, or
               detail; referral for psychiatric or psychological counseling; failure to
               promote or hire or take other favorable personnel action; or retaliating
               in any other manner against an employee because that employee
               makes a protected disclosure or refuses to comply with an illegal
               order, as those terms are defined in this section.

Id. § 1-615.52(a)(5) (2006). Long after the underlying conduct at issue in this case had

concluded, and during the pendency of this action, the District of Columbia Council passed the

Whistleblower Protection Amendment Act of 2009 (the “DC-WPAA”), 2010 D.C. Legis. Serv.

18-117 (West), which became effective on March 11, 2010. Among other changes, the DC-

WPAA amended the definition of the term “prohibited personnel action” to designate the

paragraph above as subparagraph (A) and to create a new subparagraph (B) reading as follows:

               (B)     For purposes of this paragraph, the term:



(July 25, 2011), ECF No. [134], at 2, the argument is unpersuasive because an answer need only
“affirmatively state any avoidance or affirmative defense.” FED . R. CIV . P. 8(c). The three
defenses addressed in the pending motion are not affirmative defenses; rather, each of the three
defenses are, in sum or in substance, an argument that Williams cannot satisfy one or more
essential elements of a cause of action under the DC-WPA.

                                                  3
                       (i)     “Investigation” includes an examination of fitness for
                               duty and excludes any ministerial or nondiscretionary
                               factfinding activity necessary to perform the agency’s
                               mission.

                       (ii)    “Retaliating” includes conducting or causing to be
                               conducted an investigation of an employee or
                               applicant for employment because of a protected
                               disclosure made by the employee or applicant who is
                               a whistleblower.

D.C. CODE § 1-615.52(a)(5) (2011). In short, by operation of the DC-WPAA, the DC-WPA now

provides, in essence, that an “investigation” qualifies as a prohibited personnel action, but

excepts from its coverage “any ministerial or nondiscretionary factfinding activity necessary to

perform the agency’s mission.” D.C. CODE § 1-615.52(a)(5)(B)(i) (2011). It is this last clause,

which came into being only with the passage of the DC-WPAA, that gives form to the

“ministerial or nondiscretionary investigation” exception.

               1.      The District Has Failed to Establish that Williams Has “Conceded” the
                       Applicability of the Exception in this Case

       The parties sharply dispute whether the “ministerial or nondiscretionary investigation”

exception should be applied in this case, which everyone agrees involves conduct that transpired

several years before the DC-WPAA became effective. But before the parties reach the merits of

their dispute, they argue over the threshold question of whether Williams may even be heard to

contest the applicability of the exception here because, in the District’s opinion, Williams has

“conceded” that the DC-WPAA applies to this case. Def.’s Mem. at 2.

       The District’s argument in this regard, made in passing and without citation to any legal

authority, is unavailing. Even the most cursory review of Williams’ opposition papers would

reveal that she has not conceded the applicability of the DC-WPAA in connection with the


                                                 4
pending motion. See Pl.’s Opp’n at 2-5. Accordingly, the Court can only assume that the

District’s argument is premised on a theory that Williams is somehow judicially estopped from

taking a different position than she has in the past. However, the District does not mention the

judicial estoppel doctrine in its moving papers, let alone attempt to establish that the Court

should exercise its discretion and apply the doctrine here. For example, the District offers no

factual or legal basis for concluding that (i) Williams’ current litigation position is “clearly

inconsistent” with a prior position, (ii) she “succeeded in persuading” the Court to accept her

prior inconsistent position, and (iii) she would “derive an unfair advantage” from being allowed

to adopt a different position now. New Hampshire v. Maine, 532 U.S. 742, 751-52 (2001).

       True, the District briefly cites to a “notice of supplemental authority” that Williams filed

in connection with the parties’ cross-motions for summary judgment on March 17, 2010, less

than a week after the DC-WPAA became effective. See Def.’s Mem. at 2. Therein, Williams

made the statement that “the Whistleblower Protection Amendment Act of 2009 applies to this

litigation.” Pl.’s Notice of Supplemental Authority, ECF No. [84-1], at 1. Admittedly, this broad

statement stands in some tension with Williams’ more refined position today that some elements

of the DC-WPAA—for example, its elimination of the pre-suit notice requirement under D.C.

CODE § 12-309—enact procedural changes that may be applied retroactively, while other

elements enact substantive changes that cannot be applied retroactively. Indeed, the Court has

previously taken note of this tension. See Order (Sept. 1, 2011), ECF No. [152], at 7. But the

history of this litigation has revealed that neither party has harbored any qualms about attempting

to lay claim to some of the changes brought about by the DC-WPAA while disregarding others.

For its part, the District at one point argued strenuously against the application of the DC-WPAA


                                                   5
in this case—specifically, insofar as the DC-WPAA eliminated the pre-suit notice requirement

under D.C. CODE § 12-309. In so doing, the District maintained that “[t]he 2009 Amendment

does not apply to this [case] which had been pending several years before its enactment.” Def.’s

Reply to Pl.’s Opp’n to Def.’s Suppl. Mot. for Partial Summ. J., ECF No. [117], at 2. It is not

without some irony that the District’s broad statement stands in tension with its position today

that at least some of the changes brought about by the DC-WPAA should be applied in this case.

       The Court need not belabor the point. Even assuming, arguendo, that Williams’ broad

statement that the DC-WPAA “applies to this litigation” could be characterized as “clearly

inconsistent” with her more refined position today, the District’s argument still comes to naught

because Williams did not succeed in persuading the Court to accept her broad statement. In fact,

in the course of resolving the parties’ cross-motions for summary judgment, the Court expressly

noted that it did not consider Williams’ “notice of supplemental authority,” having found that the

changes brought about the DC-WPAA were immaterial to the arguments actually raised by the

parties. Williams v. Johnson, 701 F. Supp. 2d 1, 12 n.7 (D.D.C. 2010). Simply put, Williams’

statement had no effect on the Court’s disposition of the issues presented.

       The parties did eventually turn their attention to the impact of the DC-WPAA on this

case. In particular, the Court granted the District leave to file a supplemental motion for

summary judgment addressing, in part, the question of whether the DC-WPAA’s elimination of

the pre-suit notice requirement under D.C. CODE § 12-309 should apply in this case. In the

course of briefing that motion, both sides developed more nuanced approaches to the retroactivity

question. See Pl.’s Opp’n to Def.’s Supplemental Mot. for Partial Summ. J., ECF No. [113];

Def.’s Reply to Pl.’s Opp’n to Def.’s Supplemental Mot. for Summ. J., ECF No. [117]. More


                                                 6
importantly, the Court was clear when it resolved that motion that whether certain changes could

be applied in this action depended on “[t]he distinction between substantive and procedural

legislation,” and applying that distinction, the Court found that the DC-WPAA’s elimination of

the pre-suit notice requirement was a procedural amendment that should be applied in this case.

Williams v. Johnson, __ F. Supp. 2d __, 2011 WL 2519663, at *4 (D.D.C. May 23, 2011). In

short, despite the broad statements tendered by the parties in the past, this Court has never been

persuaded that the DC-WPAA applies or does not apply to this case in toto. There is no

foundation for the Court to conclude that either party should be estopped from pursuing their

present positions.3

       In the final analysis, the District has fallen woefully short of establishing that Williams

should be judicially estopped from contesting the application of the DC-WPAA in this case

insofar as it pertains to the application of the “ministerial or nondiscretionary investigation”

exception. Accordingly, the Court shall now turn to the merits of that question.




       3
          In its reply memorandum, the District also cites in passing to Williams’ more recent
statement in a separate context that she brings her “claims under the District of Columbia
Whistleblower Protection Act, as amended.” Pl.’s Mot. in Supp. of Jury Instruction No. 19, ECF
No. [155], at 1 (emphasis added). To the extent the District intends to suggest that Williams’ use
of the phrase “as amended” is tantamount to a concession that the DC-WPAA applies in this
case, the suggestion is not well taken. As an initial matter, Williams’ statement is hardly “clearly
inconsistent” with her present litigation position; the DC-WPA was amended prior to the DC-
WPAA, most notably through the District of Columbia Whistleblower Reinforcement Act of
1998, 1998 D.C. Legis. Serv. 12-160 (West). Regardless, Williams’ passing statement was made
in an entirely separate context and was not even relevant to the motion in which it was made; as a
result, even adopting the District’s dubious premise that Williams’ statement implies that the
DC-WPAA applies to this case in its entirety, Williams did not succeed in persuading the Court
to adopt that position. In fact, even the unrelated relief underlying her motion was denied. See
Order (Oct. 17, 2011), ECF No. [167]; Mem. Op. (Oct. 17, 2011), ECF No. [168].

                                                  7
               2.      The District Has Failed to Establish that the “Ministerial or
                       Nondiscretionary Investigation” Exception Should Apply in this Case

       While the presumption against retroactive legislation is “deeply rooted in our

jurisprudence,” Landgraf v. USI Film Prods., 511 U.S. 244, 265 (1994), courts have historically

drawn a distinction between laws that affect procedural rights or obligations, on the one hand,

and laws that affect substantive rights or obligations, on the other hand. Whereas the former are

presumptively applicable to pending cases, the latter are presumed to apply only prospectively.

Compare Montgomery v. District of Columbia, 598 A.2d 162, 166 (D.C. 1991), with Lacek v.

Wash. Hosp. Ctr. Corp., 978 A.2d 1194, 1197 (D.C. 2009). Viewed from a slightly different

perspective, legislation cannot be said to be “truly retroactive” unless it changes the legal

consequences of primary conduct engaged in before its effective date. Lacek, 978 A.2d at 1197

(citing Landgraf, 511 U.S. at 269 n.3) (internal quotation marks omitted). Accordingly, the

essential question here is whether the DC-WPAA, in altering the statutory definition of the term

“prohibited personnel action” to exclude “any ministerial or nondiscretionary factfinding activity

necessary to perform the agency’s mission,” D.C. CODE § 1-615.52(a)(5)(B)(i) (2011), changed

the legal consequences of primary conduct. Answering this question “demands a commonsense,

functional judgment.” INS v. St. Cyr, 533 U.S. 289, 321 (2001) (internal quotation marks

omitted).

       Significantly, the District does not claim that the changes to the definition of the term

“prohibited personnel action”—and, in particular, the exclusion of “ministerial or

nondiscretionary” investigations—were merely procedural in nature. Nor could the District

credibly make such an argument. The term “prohibited personnel action” lies at the heart of the

operative liability provision of the DC-WPA. See D.C. CODE § 1-615.53(a) (2006) (“A

                                                  8
supervisor shall not take, or threaten to take, a prohibited personnel action or otherwise retaliate

against an employee because of the employee’s protected disclosure.”) (emphasis added). As a

result, any meaningful expansion or contraction of that term will have important consequences

for the substantive rights and obligations attaching to primary conduct. Distilling the matter to

the essence, the broader the term is defined, the more robust the protections afforded to

employees and the more expansive their cause of action. Concomitantly, the broader the term is

defined, the greater the obligations placed on supervisors and agencies and the more extensive

their potential legal liability. This landscape leads to the obvious question—in altering the

statutory definition of the term “prohibited personnel action” to exclude ministerial or

nondiscretionary investigations, did the DC-WPAA actually affect the scope of the parties’

substantive rights and obligations?

       The Court has no difficulty answering that question in the affirmative. The District

concedes, as it must, that “a retaliatory investigation was prohibited under the pre-amendment

[DC-]WPA.” Def.’s Mem. at 2 (citing Baumann v. District of Columbia, 655 F. Supp. 2d 1, 6-7

(D.D.C. 2009); Johnson v. District of Columbia, 935 A.2d 1113, 1118-19 (D.C. 2007)).

Therefore, an employee subjected to an investigation could recover under the DC-WPA provided

she could establish that the investigation was taken “because of [her] protected disclosure.” D.C.

CODE § 1-615.52(a)(5) (2006). That is, an investigation was presumptively actionable so long as

the employee’s protected disclosure was a “contributing factor” in the investigation. D.C. CODE

§ 615.54(b) (2006). Before the DC-WPAA, neither the statute nor the case law interpreting its

provisions recognized a categorical exception for ministerial or nondiscretionary investigations.

Of course, the Court recognizes that where an investigation is ministerial or nondiscretionary, it


                                                  9
may be significantly more difficult for an employee to establish a causal connection between the

investigation and her protected activity. Nonetheless, before the DC-WPAA, it was at least

theoretically possible that an employee could recover for a ministerial or nondiscretionary

investigation if she could establish that her protected activity was still a contributing factor in the

investigation. Simply by way of example, an employee might attempt to show that the agency

employing her had an established practice of failing to comply with a nondiscretionary duty to

conduct a certain type of investigation, such that its decision to comply with that duty with

respect to her would give rise to an inference of retaliation.

       That theoretical possibility has now been eliminated by operation of the DC-WPAA. By

virtue of the DC-WPAA, there is now a recognized categorical exception for ministerial or

nondiscretionary investigations: an employee simply may not recover for “any ministerial or

nondiscretionary factfinding activity necessary to perform the agency’s mission.” D.C. CODE §

1-615.52(a)(5)(B)(i) (2011). Regardless of whether it was the District of Columbia Council’s

intent, this change had the effect of contracting the right of action under the DC-WPA and

limiting the scope of an employer’s potential liability—or, in the parlance of the retroactivity

doctrine, it changed the legal consequences attaching to primary conduct. Lacek, 978 A.2d at

1197. In short, the creation of the “ministerial or nondiscretionary investigation” exception

effected a substantive change to the DC-WPA and therefore it is not properly applicable to this

case, which turns on conduct predating the amendment by several years. See Landgraf, 511 U.S.

at 265 (“[T]he legal effect of conduct should ordinarily be assessed under the law that existed

when the conduct took place.”) (citation omitted).

       The District attempts to avoid this conclusion by claiming that the DC-WPAA “merely


                                                  10
clarif[ied]” the prior state of the law. Def.’s Mem. at 2. However, for at least two reasons, the

Court finds the argument to be completely lacking in merit.

       First, the District cites to no legal authority in support of its position and appears to be

laboring under the misapprehension that a “clarifying” act should always be presumed to apply

retroactively. But that is not the law. In part because “there is serious debate and doubt as to

when, if ever, a legislature has a role in construing what an earlier legislature intended,” even an

enactment that purports to “clarify” the law may be subject to the general presumption against

retroactivity. Tippett v. Daly, 10 A.3d 1123, 1131 (D.C. 2010) (en banc) (internal quotation

marks omitted). Indeed, even “repeated references” in the legislative history to an intention to

“clarify” generally will “not justify an inference that the amendment was to be retroactive.”

Sikora v. Am. Can Co., 622 F.2d 1116, 1121 (3d Cir. 1980). Absent a “clearly expressed intent

to the contrary,” courts will “presume that the amendment does not apply retroactively.” Tippett,

10 A.3d at 1131. In this case, it is undisputed that the District of Columbia Council, in enacting

the DC-WPAA, made no affirmative indication that it intended all or part of the statute to apply

retroactively. See Sharma v. District of Columbia, __ F. Supp. 2d __, 2011 WL 2418917, at *3

(D.D.C. June 17, 2011). The District offers no justification for overriding the presumption

against retroactivity in this instance, and the Court can discern none.

       Second, and more importantly, the District simply misreads the legislative history, which,

contrary to the District’s proffered interpretation, does not suggest that the District of Columbia

Council, by enacting the DC-WPAA, intended to “clarify” that ministerial or nondiscretionary

investigations were non-actionable both before and after the DC-WPAA. Rather, the legislative

history provides that the DC-WPAA was intended to “clarify that the use of reprisal


                                                 11
investigations are prohibited under District law.” Council of the District of Columbia Committee

on Government Operations and the Environment, Report on Bill 18-223 (Nov. 19, 2009), at 6

(emphasis omitted). In other words, the District of Columbia Council sought to make it clear that

the DC-WPA has always “prohibit[ed] the practice of retaliatory investigations.” Id. at 5. The

Council apparently thought this clarification was appropriate because the pre-amended DC-

WPA’s definition of “prohibited personnel action” did not expressly enumerate investigations

among the list of proscribed actions, even though it would have fallen within the ambit of other

language. D.C. CODE § 1-615.52(a)(5) (2006).

       Meanwhile, the legislative history does not indicate that the District of Columbia Council

viewed the exclusion of ministerial or nondiscretionary investigations as part of its “clarifying”

enterprise. Instead, the legislative history merely states that the Council “appreciate[d] . . . that

in the course of its ordinary duties, an agency will need to conduct investigations,” and the

proposed statute “would not prohibit such investigations” provided they were not in “reprisal” for

an employee’s protected disclosure. Council of the District of Columbia Committee on

Government Operations and the Environment, Report on Bill 18-223 (Nov. 19, 2009), at 6

(emphasis omitted). In short, the legislative history cited by the District does not evince a clear

intention to retroactively and categorically deprive employees of their capacity to bring suit for

ministerial or nondiscretionary investigations. Nor does it suggest that the Council saw the

categorical exception for ministerial or nondiscretionary investigations to be part of the

established legal landscape before the DC-WPAA.

       For these reasons, the Court finds that the “ministerial or nondiscretionary investigation”

exception effected a substantive change to the DC-WPA and, as such, is not properly applicable


                                                  12
to this case, which turns on conduct predating the amendment by several years. Because “the

legal effect of conduct should ordinarily be assessed under the law that existed when the conduct

took place,” Landgraf, 511 U.S. at 265 (citation omitted), the Court declines the District’s

invitation to instruct the jury on the scope of the categorical exception. Instead, the Court shall

provide the jury with the parties’ agreed-upon Instruction No. 8, which sets for the definition of

the term “prohibited personnel action” prior to the DC-WPAA. See Revised Proposed Jury

Instructions, ECF No. [144], at 9. However, because the parties are in agreement that a

retaliatory investigation was actionable both before and after the DC-WPAA, the Court shall

revise this instruction to expressly mention investigations.4

       Furthermore, despite the Court’s conclusion that the District may not make use of the

categorical exception, the Court nonetheless recognizes that the question of whether the

investigation at issue in this case was nondiscretionary is highly relevant to the jury’s

determination of whether the investigation was taken “because of [Williams’] protected

disclosure.” D.C. CODE § 1-615.52(a)(5) (2006). Accordingly, upon the District’s request and

provided the District creates an appropriate evidentiary foundation at trial, the Court shall

consider providing the jury with an instruction along the following lines:

               Plaintiff claims that Robert Johnson and William Anthony
               commenced an investigation into her compliance with the D.C.
               Residency Preference Act in retaliation for her testimony before the
               District of Columbia Council. In determining whether Plaintiff has
               demonstrated by a preponderance of the evidence that her testimony
               was a contributing factor in the investigation, or in determining
               whether Defendant has proven by clear and convincing evidence that


       4
         The Court also encourages the parties to discuss whether the omission of references to
personnel actions that are not at issue in this case—for example, referrals for psychiatric or
psychological counseling—would help crystallize the issues relevant to the jury’s deliberations.

                                                 13
               the investigation would have occurred for legitimate, independent
               reasons even if Plaintiff had not provided the testimony, you may
               consider the extent to which the investigation was non-discretionary
               or required by regulation or policy.

       The parties shall promptly meet and confer and, by no later than November 14, 2011,

submit for the Court’s consideration a proposed instruction consistent with the foregoing,

proposing any adjustments to the wording that the parties consider appropriate.

       B.      The “De Minimis” or “Materiality” Requirement

       As aforementioned, under the DC-WPA, “[a] supervisor shall not take, or threaten to

take, a prohibited personnel action or otherwise retaliate against an employee because of the

employee’s protected disclosure.” D.C. CODE § 1-615.53(a) (2006). For purposes of this case,

the term “prohibited personnel action” is defined in a non-exhaustive fashion as follows:

               “Prohibited personnel action” includes but is not limited to:
               recommended, threatened, or actual termination, demotion,
               suspension, or reprimand; involuntary transfer, reassignment, or
               detail; referral for psychiatric or psychological counseling; failure to
               promote or hire or take other favorable personnel action; or retaliating
               in any other manner against an employee because that employee
               makes a protected disclosure or refuses to comply with an illegal
               order, as those terms are defined in this section.

Id. § 1-615.52(a)(5) (2006). Here, the parties dispute whether the reference to “retaliating in any

other manner” authorizes an employee to bring suit under the DC-WPA for any employment

action whatsoever, or whether the DC-WPA instead incorporates a “materiality” requirement

akin to the one in federal employment discrimination law. In this dispute, the Court finds that

the District has the better of the argument, and concludes in accordance with the federal

employment discrimination case law and those few courts that have addressed the issue in

connection with the DC-WPA, that an employee may recover under the DC-WPA only for those



                                                 14
personnel actions that might well have dissuaded a reasonable employee in the plaintiff’s

position from making a protected disclosure.

       Significantly, in formulating the legal standard governing claims brought under the DC-

WPA, the District of Columbia courts have consciously borrowed from case law interpreting

Title VII of the Civil Rights Act of 1964 (“Title VII”).5 See, e.g., Johnson, 935 A.2d at 1117-18.

Consistent with this approach, this Court has previously had the occasion to note that DC-WPA

claims are subject to the same materiality requirement used when evaluating retaliation claims

under Title VII. See Mentzer v. Lanier, 677 F. Supp. 2d 242, 251-52 (D.D.C.), aff’d, 408 F.

App’x 379 (2010) (per curiam); see also Booth v. District of Columbia, 701 F. Supp. 2d 73, 81

(D.D.C. 2010) (suggesting the same, in dicta). That is, “a plaintiff must show that a reasonable

employee would have found the challenged action materially adverse, which in this context

means that it might well have dissuaded a reasonable worker from making” a protected

disclosure. Burlington N. & Sante Fe Ry. Co. v. White, 548 U.S. 53, 58 (2006) (internal

quotation marks and citation omitted).6


       5
          On occasion, the District of Columbia courts have also looked to the terms of the
federal Whistleblower Protection Act (the “F-WPA”) for guidance in interpreting the DC-WPA.
See Wilburn v. District of Columbia, 957 A.2d 921, 925 (2008); Crawford v. District of
Columbia, 891 A.2d 216, 221 n. 12 (D.C. 2006). Like Title VII, the F-WPA includes a
materiality requirement, providing that any non-enumerated personnel action must rise to the
level of a “significant change in duties, responsibilities, or working conditions.” 5 U.S.C. §
2302(a)(2)(A). Indeed, the F-WPA would appear to require that the employee suffer a tangible
employment action, a requirement that has since been rejected in the Title VII retaliation context.
       6
         In Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), the
Supreme Court found that such a requirement should be read into Title VII even though “[n]o
such limiting words appear in the antiretaliation provision.” Id. at 62. The Supreme Court
observed that “[n]o one doubts that the term ‘discriminate against’ refers to distinctions or
differences in treatment that injure protected individuals.” Id. at 59 (emphasis added). Similarly,
the absence of limiting language in the DC-WPA does not preclude an interpretation

                                                15
       Such an interpretation has the benefit of being in harmony with the interpretive canon of

ejusdem generis, which provides that “where general words follows specific words, the general

words are construed to embrace only objects similar in nature to those objects enumerated by the

preceding specific words.” Cement Kiln Recycling Coal. v. EPA, 493 F.3d 207, 221 (D.C. Cir.

2007) (internal quotation marks and notations omitted) (quoting Edison Elec. Inst. v. OSHA, 411

F.3d 272, 281 (D.C. Cir. 2005)). Here, the statutory definition of “prohibited personnel action”

begins by enumerating several specific personnel actions, including (a) termination, (b)

demotion, (c) suspension, (d) reprimand, (e) transfer, (f) reassignment, (g) referral for counseling,

(h) failure to hire, and (i) failure to promote. See D.C. CODE § 1-615.53(a) (2006). The items on

this list share a common thread—namely, they are all materially adverse employment actions,

ones that rise to such a level that they might well dissuade a reasonable employee from making a

protected disclosure. Following these specific personnel actions, the District of Columbia

Council placed the generic phrase “or retaliating in any other manner against an employee.” Id.

Consistent with the canon of ejusdem generis, the Court construes this phrase to embrace only

those personnel actions that, like the specifically enumerated actions, might well dissuade a

reasonable employee from making a protected disclosure under the statute.

       Indeed, accepting Williams’ contrary interpretation would render the remainder of the

statutory definition superfluous, and deprive much of the language chosen by the District of

Columbia Council of any apparent purpose. If, as Williams suggests, the phrase “retaliating in

any other manner” embraced all personnel actions irrespective of their materiality, there would


incorporating a materiality requirement. No one would doubt that the DC-WPA’s use of the term
“retaliate,” or variations thereof, refers to treatment that injures an employee because of his or her
protected disclosure.

                                                 16
have been no need for the District of Columbia Council to enumerate several specific personnel

actions. That it chose to do so strongly suggests that there was a purpose in identifying specific

personnel actions, and undermines Williams contention that DC-WPA authorizes suit upon any

personnel action whatsoever.

        Despite Williams’ stated belief to the contrary, interpreting the DC-WPA to incorporate a

materiality requirement is not the least bit inconsistent with the stated statutory purpose to

“[e]nhance the rights of District employees to . . . express their views without fear of retaliation.”

D.C. CODE § 1-615.51(1). Logically, if an action is so immaterial or de minimis that it would

not dissuade a reasonable employee from making a protected disclosure, then ipso facto it can

have no meaningful impact on whether a reasonable employee would be inclined to “express

[his] views.” Id. Indeed, by focusing on those acts that might reasonably affect employees’

willingness to make protected disclosures, the District of Columbia Council quite sensibly

tailored its enactment to fit the precise public interest to be served.

        For the reasons set forth above, the Court concludes that an employee may recover under

the DC-WPA only for those personnel actions that “might well have dissuaded a reasonable

worker” from making a protected disclosure. Burlington N., 548 U.S. at 58 (internal quotation

marks and citation omitted). Accordingly, provided an evidentiary foundation is made at trial,

the Court shall consider amending the parties’ agreed-upon Jury Instruction No. 8 to provide as

follows, with the changes noted in bold italics:

                A “prohibited personnel action” includes, but is not limited to,
                recommended, threatened, or actual termination, demotion,
                suspension, or reprimand; involuntary transfer, reassignment, or
                detail; referral for psychiatric or psychological counseling; failure
                to promote or hire or take other favorable personnel action;
                investigations; or taking any other action that might well have

                                                   17
               dissuaded a reasonable employee in Plaintiff’s position from
               making a protected disclosure.

Revised Proposed Jury Instructions at 9.7 The parties shall promptly meet and confer and, by no

later than November 14, 2011, submit for the Court’s consideration a proposed instruction

consistent with the foregoing, proposing any adjustments to the wording that the parties consider

appropriate.

       Meanwhile, the Court declines the District’s invitation to instruct the jury that it must find

that each challenged personnel action “rise[s] to the same level of seriousness” as the specifically

enumerated actions, Def.’s Mem. at 10, a proposal that would depart from the standard under

federal law and is so vague that it would, in the Court’s estimation, be more likely to confuse

than guide the jury in its search for a proper resolution of the parties’ dispute.

       C.      Discrete Acts and Hostile Work Environment Claims

       Finally, the District asks the Court to provide the jury with the following instruction in

connection with Williams’ hostile work environment claim:

               Plaintiff has alleged claims for both retaliation and hostile work
               environment. Retaliation claims are distinct from hostile work
               environment claims, and plaintiff cannot rely on the same set of acts
               to support both types of claims. For any individual act of alleged
               retaliation for which Plaintiff seeks damages, you may not also
               consider that act in determining whether Plaintiff has met the required
               level of proof for establishing a hostile work environment.

Def.’s Mem. at 11. The District’s proposed instruction is based on a correct statement of the law,

but only in part. Accordingly, the Court declines to provide the instruction as proposed, and will



       7
          Again, the Court encourages the parties to discuss whether the omission of references to
personnel actions that are not at issue in this case would help crystallize those issues directly
relevant to the jury’s deliberations.

                                                  18
instead consider a modified version outlined below.

       In this Circuit, it is well-established that an employee may not attempt to “bootstrap”

discrete acts of retaliation into a broader hostile work environment claim. Baloch v. Norton, 517

F. Supp. 2d 345, 364 (D.D.C. 2007), aff’d sub nom. Baloch v. Kempthorne, 550 F.3d 1191 (D.C.

Cir. 2008); accord Nurriddin v. Goldin, 382 F. Supp. 2d 79, 108 (D.D.C. 2005), aff’d, 222 F.

App’x 5 (D.C. Cir. 2007), cert. denied, 552 U.S. 1243 (2008); Lester v. Natsios, 290 F. Supp. 2d

11, 33 (D.D.C. 2003). Because hostile work environment claims by definition “involve[]

repeated conduct,” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002), employees

may not recover under a hostile work environment theory based upon nothing more than an

amalgamation of loosely related discrete acts. “If certain actions are so remote in time or

different in kind that a reasonable trier of fact could not find them to be part of the same work

environment, then those actions should not be considered.” Mason v. Geithner, __ F. Supp. 2d

__, 2011 WL 4014300, at *27 (D.D.C. Sept. 12, 2011) (citing Vickers v. Powell, 493 F.3d 186,

199-200 (D.C. Cir. 2007); Verges v. Shelby Cnty. Sheriff’s Office, 721 F. Supp. 2d 730, 746

(W.D. Tenn. 2010)). These principles are well-established and non-controversial. Therefore,

upon the District’s request and assuming an appropriate evidentiary foundation is made at trial,

the Court shall consider providing the jury with an instruction along the following lines:

               When it comes to Plaintiff’s “hostile work environment” claim, the
               relevant employment practice is the work environment as a whole.
               If you find that any of the individual acts that Plaintiff alleges to be
               part of her claim are so different in kind or so remote in time from the
               remaining acts, then you should not consider those acts in
               determining whether Plaintiff has met her burden of proof.8


       8
          To be clear, this instruction would be in addition to the parties’ agreed-upon Jury
Instructions Nos. 22-23, which together spell out the general legal standard for a hostile work

                                                 19
The parties shall promptly meet and confer and, by no later than November 14, 2011, submit for

the Court’s consideration a proposed instruction consistent with the foregoing, proposing any

adjustments to the wording that the parties consider appropriate.

       While this much is non-controversial, the District’s proposed instruction would go much

farther, and would categorically prevent Williams from relying upon any “individual act of

alleged retaliation for which [Williams] seeks damages . . . in determining whether [she] has met

the required level of proof for establishing a hostile work environment.” Def.’s Mem. at 11. In

this regard, the District effectively seeks to transform the “no bootstrapping” rule, which is

designed to safeguard the boundaries between discrete retaliation claims and hostile work

environment claims, into a full-blown “election of remedies” rule, which is designed to prevent a

plaintiff from securing a double recovery based on two different liability findings where the

injury is the same for both claims. Simply put, the District cites to no authority supporting such a

radical position, and the Court declines the District’s invitation to instruct the jury on a novel and

unsupported view of the law.9

       Nonetheless, the Court acknowledges that, without adequate guidance, there is often a

risk that a jury will provide a plaintiff with a windfall by “award[ing] separate and duplicative

compensatory damages awards for the same injuries.” Hailey v. City of Camden, 650 F. Supp. 2d

349, 358 (D.N.J. 2009). Accordingly, upon the District’s request and assuming an adequate

evidentiary foundation is made at trial, the Court shall consider providing the jury with the



environment claim. See Revised Proposed Jury Instructions at 17-18.
       9
           The Court observes that only the question of compensatory damages will be decided by
the jury, as the parties have agreed to submit the determination of back pay and front pay to the
Court. See Order (July 25, 2011), ECF No. [134], at 6.

                                                 20
following generalized instruction to prevent a duplicative damages award:

               You must determine the amount of damages to be awarded on each
               claim for which you find in Plaintiff’s favor. However, Plaintiff may
               not recover twice for the same injury. Therefore, if you find in
               Plaintiff’s favor on two or more claims, and you find that any of those
               claims address the same injury, then you may not compensate
               Plaintiff twice for any damages she might have suffered for that
               shared injury. You may award additional damages only to the extent
               you find some aspect of injury that has not already been compensated
               for by another award.

See Bender v. City of New York, 78 F.3d 787, 794 (2d Cir. 1996) (“[T]he jurors should have been

instructed that they can award additional damages, beyond what they award for an overlapping

tort, only to the extent that they find some aspect of injury that has not been already compensated

for by the award of damages for the related tort.”); accord Martinez v. Port Auth. of N.Y. and

N.J., 445 F.3d 158, 161 (2d Cir. 2006). The parties shall promptly meet and confer and, by no

later than November 14, 2011, submit for the Court’s consideration a proposed instruction

consistent with the foregoing, proposing any adjustments to the wording that the parties consider

appropriate.

       For these reasons, the Court considers it inappropriate to provide the District’s proposed

jury instruction in articulating the legal standards governing Williams’ hostile work environment

claims. Instead, upon request and with an appropriate evidentiary foundation, the Court shall

consider (a) instructing the jury to disregard any individual acts that are “different in kind” or

“remote in time” that they could not be part of the same hostile work environment and (b)

directing the jury to avoid awarding duplicative damages for the same injury.

                                       III. CONCLUSION

       For the reasons set forth above, the Court shall GRANT-IN-PART and DENY-IN-PART


                                                  21
the District’s [158] Motion Regarding Legal Basis for Defenses as follows:

       (a)    The Court declines to instruct the jury on a categorical “ministerial or

              nondiscretionary investigation” exception to the DC-WPA. However, the Court

              shall (i) amend the parties’ agreed-upon Jury Instruction No. 8 to include a

              reference to “investigations” and (ii) upon the District’s request and provided an

              appropriate evidentiary foundation is made at trial, consider instructing the jury

              that it “may consider the extent to which the investigation was non-discretionary

              or required by regulation or policy” in determining whether Williams has met her

              burden of demonstrating that her protected disclosure was a “contributing factor”

              in the investigation or whether the District has met its burden of establishing by

              “clear and convincing” evidence that the investigation would have occurred even

              in the absence of Williams’ protected disclosure.

       (b)    The Court declines to instruct the jury that it must find that any challenged

              personnel action “rise[s] to the same level of seriousness” as those specifically

              enumerated in D.C. CODE § 1-615.52(a)(5) (2006). However, the Court shall

              consider instructing the jury that a prohibited personnel action must rise to such a

              level that it “might well have dissuaded a reasonable employee in Plaintiff’s

              position from making a protected disclosure.”

       (c)    The Court declines to instruct the jury that it cannot consider any “individual act

              of alleged retaliation for which [Williams] seeks damages . . . in determining

              whether [she] has met the required level of proof for establishing a hostile work

              environment.” However, the Court shall, upon the District’s request and provided


                                               22
               an appropriate evidentiary foundation is made at trial consider (i) instructing the

               jury to disregard any individual acts that are so “different in kind” or “remote in

               time” that they could not be part of the same hostile work environment and (ii)

               providing a generalized instruction to avoid a duplicative damages award.

       By no later than November 14, 2011, the parties shall submit for the Court’s

consideration (a) proposed instructions consistent with the Court’s conclusions set forth above,

proposing any adjustments to the wording provided by the Court that the parties consider

appropriate, and (b) a revised verdict form(s) updated to reflect the refinement of the claims and

defenses in this action and the parties’ proposed jury instructions.

       Before concluding, the Court pauses to acknowledge that it cannot predict with certainty

how events will unfold at trial. The foregoing analysis is based on the record as it now stands

and the arguments articulated by the parties to date. As evidence is presented at trial, the parties

may encounter “issues that could not reasonably have been anticipated” earlier. FED . R. CIV . P.

51(a)(2)(A). To be clear, the parties are not absolutely foreclosed from raising such issues at the

appropriate time. However, the parties are cautioned that this is not an invitation to recycle old

arguments.

       An appropriate Order accompanies the Memorandum Opinion.



Date: October 19, 2011

                                                              /s/
                                                      COLLEEN KOLLAR-KOTELLY
                                                      United States District Judge




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