                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


 CHRISTINA CONYERS WILLIAMS,

           Plaintiff,
                                                           Civil Action No. 06-02076 (CKK)
      v.

 ROBERT JOHNSON, et al.,

           Defendants.


                                  MEMORANDUM OPINION
                                      (May 23, 2011)

       Plaintiff Christina Conyers Williams (“Williams”) was once employed by the Addiction

Prevention and Recovery Administration of the District of Columbia Department of Health. In

December 2006, she commenced this civil action against the District of Columbia and two of her

former supervisors.1 Over the years, the claims at issue have been progressively winnowed down

through motions practice and by the decisions of this Court. Today, the exclusive focus of the

dispute is Williams’s contention that she was retaliated against in violation of the District of

Columbia Whistleblower Protection Act, D.C. Code §§ 1-615.01 et seq., for testimony that she

gave before the District of Columbia Council. She claims that she was subjected to a concerted

campaign of harassment in reprisal for her protected testimony, a campaign which she contends

ultimately compelled her to resign her employment to accept a less lucrative position elsewhere.

In connection with these allegations, she seeks to recover back pay and front pay representing the

difference in her lower earnings in her new position and the earnings that she would have



       1
          While it has not always been the case, the two individual defendants now appear in this
action solely in their official capacities.
received had she remained employed with the District of Columbia.

        Presently pending before the Court is the District of Columbia’s [111] Supplemental

Motion for Summary Judgment, in which the District of Columbia contends that Williams is

precluded from securing the aforementioned back pay and front pay for a single reason—namely,

because she purportedly failed to provide adequate pre-suit notice of her claims following her

resignation. Williams does not dispute that she did not provide pre-suit notice after she resigned

her position. Instead, she counters that, in the time since she commenced this action, the District

of Columbia Council has enacted the Whistleblower Protection Act of 2009, D.C. Act 18-265,

which amended the underlying statute to eliminate the pre-suit notice requirement altogether, and

she argues that the amended version of the statute should be applied in this case.2 The Court

agrees. Therefore, based upon a searching review of the parties’ submissions, the relevant

authorities, and the record as a whole, the shall deny the District of Columbia’s motion in its

entirety.3


        2
          Williams argues in the alternative that the pre-suit notice that she provided before she
actually resigned her position was sufficiently broad to satisfy the pre-suit notice requirements
with respect to any claims arising out of her resignation, but the Court need not—and does not—
reach that question here because it concludes that no such notice was required. Nonetheless, the
Court observes that there is some question as to whether the pre-suit notice that Williams
provided would have sufficed to discharge her obligations. See Francis v. District of Columbia,
731 F. Supp. 2d 56, 76 (D.D.C. 2010) (concluding that the plaintiff failed to provide adequate
pre-suit notice of claims when notice was provided before the injury occurred); Kennedy v.
District of Columbia Gov’t, 519 F. Supp. 2d 50, 58 (D.D.C. 2007) (same).
        3
         While the Court renders its decision today on the record as a whole, its consideration
has focused on the following documents, listed in chronological order of their filing: Def.’s
Mem. of P. & A. in Supp. of its Suppl. Mot. for Partial Summ. J., ECF No. [111]; Def.’s Stmt. of
Material Facts, ECF No. [111-1]; Pl.’s Opp’n to Def.’s Suppl. Mot. for Partial Summ. J., ECF
No. [113]; Pl.’s Resp. to Def.’s Suppl. Stmt. of Material Facts, ECF No. [113-2]; Def.’s Reply to
Pl.’s Opp’n to Def.’s Suppl. Mot. for Partial Summ. J., ECF No. [117]; Amicus Curiae Br., ECF
No. [118]; Def.’s Resp. to Amicus Curiae Br., ECF No. [120].

                                                 2
                                        I. BACKGROUND

       The Court assumes familiarity with its prior opinions in this action, which together set

forth in detail the factual and procedural background of this case. See Williams v. Johnson, 537

F. Supp. 2d 141 (D.D.C. 2008); Williams v. Johnson, 701 F. Supp. 2d 1 (D.D.C. 2010); Williams

v. Johnson, 747 F. Supp. 2d 10 (D.D.C. 2010). The Court shall therefore limit its discussion here

to those facts that are most germane to the instant motion. In addition, while the pending motion

is contested, there is surprisingly little disagreement as to the underlying facts, obviating in large

part the need to make specific references to the record. The Court will therefore reference the

record primarily when highlighting points of disagreement and contention.

       Williams was formerly employed as Chief of the Center of Research Evaluation and

Grants for the Addiction Prevention and Recovery Administration (the “APRA”) of the District

of Columbia Department of Health. Beginning in or about April 2005, she was assigned

responsibility for the implementation of the APRA’s Client Information System (“ACIS”)

software, which was intended to allow staff members to access information collected from the

APRA’s clients. On February 14, 2006, Williams and her supervisor attended a routine oversight

hearing before the District of Columbia Council Committee on Health, which was headed by

Councilmember David Catania. During the course of the hearing, Councilmember Catania asked

several questions concerning the ACIS software. Her supervisor beckoned Williams to approach

the witness table and respond to the Councilmember’s questions. Williams did so, providing

approximately ten minutes of testimony. According to Williams, her statements revealed that the

ACIS software was, despite significant monetary expenditures, a major failure.

       By Williams’s account, a concerted campaign of harassment and retaliation against her


                                                  3
began immediately on the heels of her testimony before the District of Columbia Council. She

contends that her supervisors reprimanded her, repeatedly threatened to terminate her

employment, removed her responsibilities and staff, and moved her office to a less desirable

location. Williams alleges that her supervisors eventually attempted to terminate her

employment on the pretext that she failed to comply with residency preference requirements—

namely, a statutory requirement that she remain a resident of the District of Columbia for a

certain length of time.

       On August 18, 2006, Williams, through counsel, sent the first of what would be four

letters to the District of Columbia’s Office of Risk Management setting forth in considerable

detail her allegations that she had been the target of harassment and efforts to wrongfully

terminate her employment as a result of her testimony before the District of Columbia Council.

See Def.’s Ex. C (Aug. 18, 2006 Ltr. from J. Karl, Jr.). The letter was expressly styled as a pre-

suit notice of claims under D.C. Code § 12-309. See id.

       Williams asserts that she began looking for alternative employment in October 2006. See

Def.’s Ex. B (Decl. of Christina Conyers Williams), ¶ 1. While her search was allegedly

ongoing, Williams sent three more pre-suit notice letters to the District of Columbia’s Office of

Risk Management—one on October 13, 2006, a second on November 29, 2006, and a third on

March 19, 2007. See Def.’s Ex. D (Oct. 13, 2006 Ltr. from J. Karl, Jr.), Ex. E (Nov. 29, 2006

Ltr. from J. Karl., Jr.), & Ex. F (Mar. 19, 2007 Ltr. from J. Karl, Jr.). Each letter added to

Williams’s allegations that she had been the target of harassment and efforts to wrongfully

terminate her employment. When Williams sent the last of her letters, she was still employed.

       Williams resigned her employment in June 2007 to accept a less lucrative position with


                                                  4
the U.S. Public Health Service. Williams did not send another pre-suit notice letter to the

District of Columbia’s Office of Risk Management at any time following her resignation in order

to supplement her allegations. Nonetheless, in this action, Williams seeks back pay and front pay

representing the difference in her earnings in her new position with the federal government and

the earnings that she would have received had she remained employed with the APRA.4

                                     II. LEGAL STANDARD

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

dispute as to any material fact and [that it] . . . is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). The mere existence of some factual dispute is insufficient on its own to bar

summary judgment; the dispute must pertain to a “material” fact, and therefore “[o]nly disputes

over facts that might affect the outcome of the suit under the governing law will properly


       4
          Parenthetically, the Court pauses to observe that the parties have long shared an
assumption about the scope of this action, an assumption which the Court need not—and does
not—question. Specifically, both parties have for quite some time operated under the
assumption that the allegations in the operative iteration of the Complaint are sufficiently broad
to support a claim that Williams was constructively discharged from her position with the APRA,
even though Williams may have technically filed that iteration of the Complaint a short time
before she actually resigned. See First Am. Compl., ECF No. [13]. The assumption is certainly
not an unreasonable one. In her Complaint, Williams alleged that her supervisors took a wide
variety of adverse employment actions against her in reprisal for her testimony; notably, she
averred—perhaps partly in anticipation of what would eventually transpire—that the prohibited
personnel actions included termination. Id. ¶ 110. As this action has progressed over the years,
the parties have reasonably proceeded as if Williams was pursuing a claim that she was
constructively discharged in connection with her resignation from the APRA. Simply by way of
example, when the District of Columbia moved in limine to preclude Williams from introducing
evidence concerning the difference between her purportedly lower earnings in her new position
with the federal government and her expected earnings had she remained employed by the
District of Columbia, both parties clearly understood that Williams intended to pursue a claim for
constructive discharge in this action, which the District of Columbia characterized as a necessary
prerequisite to Williams’s request for back pay and front pay. See Def.’s Mem. of P. & A. in
Supp. of Def.’s Mot. in Limine, ECF No. [92]; Pl.’s Opp’n to Def.’s Mot. in Limine, ECF No.
[94]; Def.’s Reply to Pl.’s Opp’n to its Mot. in Limine, ECF No. [100].

                                                   5
preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986). Nor may summary judgment be avoided based on just any disagreement as to the

relevant facts; the dispute must be “genuine,” meaning that there must be sufficient admissible

evidence for a reasonable trier of fact to find for the non-movant. Id.

       In order to establish that a fact is or cannot be genuinely disputed, a party must (a) cite to

specific parts of the record—including deposition testimony, documentary evidence, affidavits or

declarations, or other competent evidence—in support of its position, or (b) demonstrate that the

materials relied upon by the opposing party do not actually establish the absence or presence of a

genuine dispute. Fed. R. Civ. P. 56(c)(1). Conclusory assertions offered without any factual

basis in the record cannot create a genuine dispute sufficient to survive summary judgment.

Ass’n of Flight Attendants-CWA v. U.S. Dep’t of Transp., 564 F.3d 462, 465-66 (D.C. Cir. 2009).

Moreover, where “a party fails to properly support an assertion of fact or fails to properly address

another party’s assertion of fact,” the district court may “consider the fact undisputed for

purposes of the motion.” Fed. R. Civ. P. 56(e).

       When faced with a motion for summary judgment, the district court may not make

credibility determinations or weigh the evidence; instead, the evidence must be analyzed in the

light most favorable to the non-movant, with all justifiable inferences drawn in her favor.

Liberty Lobby, 477 U.S. at 255. If material facts are genuinely in dispute, or undisputed facts are

susceptible to divergent yet justifiable inferences, summary judgment is inappropriate. Moore v.

Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). In the end, the district court’s task is to determine

“whether the evidence presents a sufficient disagreement to require submission to a jury or

whether it is so one-sided that one party must prevail as a matter of law.” Liberty Lobby, 477


                                                  6
U.S. at 251-52. In this regard, the non-movant must “do more than simply show that there is

some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co., Ltd. v. Zenith

Radio Corp., 475 U.S. 574, 586 (1986); “[i]f the evidence is merely colorable, or is not

sufficiently probative, summary judgment may be granted,” Liberty Lobby, 477 U.S. at 249-50

(internal citations omitted). Stated differently, the mere existence of a “scintilla of evidence” in

support of the non-movant’s position will not suffice; there must be enough evidence on which

the jury could reasonably find for the non-movant. Talavera v. Shah, __ F.3d __, 2011 WL

1120285, at *2 (D.C. Cir. Mar. 29, 2011).

                                         III. DISCUSSION

       When the District of Columbia Council first enacted the Whistleblower Protection Act

(the “DCWPA”), D.C. Code §§ 1-615.01 et seq., it did so based on the finding that “the public

interest is served when employees of the District government are free to report waste, fraud,

abuse of authority, violations of law, or threats to public safety without fear of retaliation or

reprisal.” D.C. Code § 1-615.51 (2011). Consistent with this legislative finding, the DCWPA

prohibits a broad category of adverse employment actions taken in reprisal for protected

disclosures, providing that “[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.” Id. § 1-615.53(a) (2011).

       In its original form, the DCWPA required any plaintiff invoking its protections to provide

the District of Columbia with written notice of their claims prior to bringing suit. See D.C. Code

§ 1-615.54(a) (2006) (“A civil action brought pursuant to this section shall comply with the




                                                   7
notice requirements of § 12-309”).5 That is no longer the case. While this action was pending,

the District of Columbia Council passed the Whistleblower Protection Act of 2009, D.C. Act 18-

265, which made a number of changes to the DCWPA.6 Most notably, the District of Columbia

Council unambiguously eliminated the requirement that a plaintiff seeking to invoke the

protections of the DCWPA provide the District of Columbia with written notice of her claims

prior to bringing suit. See D.C. Code § 1-615.54(a)(3) (2011) (“Section 12-309 shall not apply to

any civil action brought under this section.”). As a result, the Court is left with two

fundamentally irreconcilable statutory commands—the first in effect at the time this action was

commenced and the time Williams’s claims accrued, and the second in effect today. This motion

turns on a straightforward question—which version should the Court apply?

       While there may be a presumption against retroactive legislation that is “deeply rooted in

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

historically drawn a distinction between laws that affect substantive rights or obligations and

laws that affect procedural rights or obligations. Substantive legislation is presumed to operate

prospectively, Lacek v. Washington Hosp. Ctr. Corp., 978 A.2d 1194, 1197 (D.C. 2009), but

procedural legislation is presumed to apply to pending cases, Montgomery v. District of

Columbia, 598 A.2d 162, 166 (D.C. 1991). Viewed from a slightly different perspective,



       5
          Section 12-309 provides, in pertinent part, that “[a]n action may not be maintained
against the District of Columbia . . . unless, within six months after the injury or damage was
sustained, the claimant, his agent, or attorney has given notice to the Mayor of the District of
Columbia of the approximate time, place, cause, and circumstances of the injury or damage.”
D.C. Code § 12-309 (2011).
       6
        The Court has no occasion to address the impact of any other changes that may have
been made by the Whistleblower Protection Act of 2009.

                                                  8
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 Landsgraf,

511 U.S. at 269 n.3).

       The distinction between substantive and procedural legislation is not readily reduced to

abstract principles. As the Supreme Court has observed, the question of whether a particular

provision is substantive or procedural is not formalistic but “demands a commonsense, functional

judgment” about what legal consequences it attaches to prior conduct. Immigration &

Naturalization Serv. v. St. Cyr., 533 U.S. 289, 321 (2001) (internal quotation marks omitted).

The essential question that the court “must ask [is] whether the new provision attaches new legal

consequences to events completed before its enactment.” Landsgraf, 511 U.S. at 269-70. This is

because the distinction between the two forms of legislation rests on the eminently sensible

conclusion that “[e]lementary considerations of fairness dictate that individuals should have an

opportunity to know what the law is and to conform their conduct accordingly.” Id. at 265. In

other words, the purpose of distinguishing between the two is to avoid post hoc changes to legal

rules on which parties have relied in shaping their primary conduct. Trout v. Sec’y of the Navy,

540 F.3d 442, 445 (D.C. Cir. 2008), cert. denied, __ U.S. __, 129 S. Ct. 2791 (2009). The same

concerns about applying legislation to past conduct simply does not arise when the legislation in

question “regulate[s] secondary rather than primary conduct.” Landsgraf, 511 U.S. at 275. This

remains true even where “the transaction which precipitated the dispute took place prior to the

enactment of the statute.” Montgomery, 598 A.2d at 166.

       Applying these general principles to the amendment that is at issue in this case is an easy

matter. Like the pre-suit notice requirement addressed by the District of Columbia Court of


                                                 9
Appeals in Lacek v. Washington Hosp. Ctr. Corp., 978 A.2d 1194 (D.C. 2009), neither the

presence nor the absence of a pre-suit notice requirement under the DCWPA curtails a plaintiff’s

right to sue for wrongful conduct (or the potential liability of a defendant to be sued), but instead

merely involves “a procedural requirement” that notice be given before suit may be filed. Id. at

1198 n.4. That is, the Whistleblower Protection Act of 2009 “merely removes a procedural

hurdle” to the assertion of claims under the DCWPA. Bowyer v. District of Columbia, __ F.

Supp. 2d __, 2011 WL 1603257, at *3 (D.D.C. Apr. 29, 2011).

        Stated differently, the pre-suit notice requirement plainly “regulate[s] secondary rather

than primary conduct.” Landsgraf, 511 U.S. at 275. It does not enlarge the scope of a plaintiff’s

cause of action or alter the responsibilities and liabilities of the District of Columbia and its

employees. Simply put, both prior to and after the elimination of the pre-suit notice requirement,

supervisors were always prohibited from retaliating against an employee because of that

employee’s protected disclosure. See D.C. Code § 1-615.53(a). In this case, were the individuals

implicated by Williams’s allegations to have looked at the law at the time of the allegedly

wrongful conduct and “conform[ed] their conduct accordingly,” Landsgraf, 511 U.S. at 265, the

pre-suit notice requirement would have had no bearing on their inquiry. They simply could not

have reasonably relied on the pre-suit notice requirement in shaping their primary conduct.

         The District of Columbia rejoins that the pre-suit notice requirement “effectively waives

sovereign immunity” and, as such, its removal from the statutory scheme is more than

procedural. Setting aside the fact that the District of Columbia’s argument seems all but

foreclosed by the decision of the District of Columbia Court of Appeals in Lacek, it fails at the

outset because it rests on a fundamental misunderstanding of the pre-suit notice requirement and


                                                  10
its relationship to sovereign immunity. The District of Columbia Court of Appeals has

repeatedly observed that the pre-suit notice requirement is not a waiver of sovereign immunity,

but is instead “‘purely a notice provision.’” Tucci v. District of Columbia, 956 A.2d 684, 694

(D.C. 2008) (quoting Gwinn v. District of Columbia, 434 A.2d 1376, 1378 (D.C. 1981)); see also

Barnhardt v. District of Columbia, 8 A.3d 1206, 1214 (D.C. 2010). It is, plain and simple, the

means by which the District of Columbia has prescribed the “terms and conditions imposed . . .

on [its] waiver of its immunity.” Tucci, 956 A.2d at 695 (internal quotation marks omitted). In

this case, the District of Columbia independently waived its immunity “when it enacted the

[DCWPA] in 1998, allowing aggrieved District employees to file civil actions and seek relief and

damages.” Bowyer, 2011 WL 1603257, at *4. The pre-suit notice requirement was, plain and

simple, nothing more than the procedure by which a waiver of sovereign immunity might occur.

The sovereign has now decided to abandon that procedural requirement. Such a procedural

change applies to pending cases, even where the conduct precipitating the case predated the

enactment of the legislation. As a result, the pre-suit notice requirement is effectively eliminated

from this action.

       /

       /

       /

       /

       /

       /

       /



                                                 11
                                      IV. CONCLUSION

       For the reasons set forth above, the Court concludes that the elimination of the pre-suit

notice requirement in the Whistleblower Protection Act of 2009 effected a procedural change to

the DCWPA, which is therefore properly applied to this case, eliminating the pre-suit notice

requirement for purposes of this action. Therefore, the Court shall deny the District of

Columbia’s [111] Supplemental Motion for Summary Judgment in its entirety. An appropriate

order accompanies this memorandum opinion.



Date: May 23, 2010
                                                             /s/
                                                     COLLEEN KOLLAR-KOTELLY
                                                     United States District Judge




                                                12
