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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                  No. 14-CV-049

                             ALVIN HOFF, APPELLANT,

                                         v.

                           WILEY REIN, LLP, APPELLEE.


                          Appeal from the Superior Court
                            of the District of Columbia
                                  (CAB-8914-12)

                          (Hon. John M. Mott, Trial Judge)

(Argued January 6, 2015                             Decided February 12, 2015)

      Jolly C. Anaba for appellant.

      Robert L. Duston, with whom Carolyn Due was on the brief, for appellee.

      Before WASHINGTON, Chief Judge, FISHER, Associate Judge, and FERREN,
Senior Judge.


      FERREN, Senior Judge: Alvin Hoff, formerly an at-will employee at the

Wiley Rein law firm, seeks reversal of the trial court‟s dismissal of his two-count

lawsuit against the firm.      He claims:     (1) “wrongful termination” of his
                                          2


employment because he refused the firm‟s demand to violate a criminal law,1 and

(2) “retaliatory discharge” because that refusal, contrary to the direction of his

supervisor, was protected by the District of Columbia Human Rights Act

(DCHRA).2 More specifically, appellant Hoff, a former records coordinator for

appellee Wiley Rein, claims that he was fired unlawfully because he had not been

willing to enhance, and thus falsify, the performance evaluation of another

employee at the request of Hoff‟s supervisor, who allegedly had tender feelings for

that employee. Hoff contends that the trial court erred in granting Wiley Rein‟s

motion to dismiss on the ground that he had failed to plead facts sufficient to

support either count in his complaint. Perceiving no error, we affirm.


                                          I.


      In reviewing the grant of a motion to dismiss,3 we take as true the following

facts alleged in the complaint.4 Hoff was employed by Wiley Rein as Coordinator

in the Records Department. Among his responsibilities, Hoff drafted periodic


      1
          See Adams v. George W. Cochran & Co., 597 A.2d 28, 34 (D.C. 1991).
      2
          D.C. Code §§ 2-1401.01 to 2-1404.04 (2012 Repl.).
      3
          Super. Ct. Civ. R. 12 (b)(6).
      4
       Hoff filed his complaint on November 23, 2012. Four days later, he filed
an amended complaint, which serves as the basis for the facts set forth here.
                                        3


performance evaluations for employees in his department. Hoff reported directly

to his supervisor, Douglas Smith.



      At a meeting with both Hoff and Smith, the firm‟s Director of Operations,

Derek McCleskey, told them both to give Gloria Ward, an employee in the

Records Department, an “unsatisfactory” employment evaluation and to “place

Ward on „PIP,‟” which we understand to mean a performance improvement plan.

After this meeting, Smith made numerous attempts to persuade Hoff instead to

give Ward a satisfactory evaluation. When Hoff refused, Smith told Hoff that he

must issue a satisfactory evaluation for Ward, “or else.” Hoff then set about

drafting Ward‟s evaluation, which took roughly one week to produce, during

which Smith “continually pestered” Hoff to issue a satisfactory evaluation. Smith

also allegedly entered Hoff‟s office to “remind” and “threaten” Hoff to “lean easy

on [Ward],” because Smith did “not want anyone to be fired.”



      Hoff‟s employment evaluation, however, as McCleskey had requested,

characterized Ward‟s performance as “unsatisfactory,” and she was “placed on

PIP.” As a result, Smith was “furious” with Hoff, and on one occasion confronted

Hoff in his office “with a few choice words.” On March 1, 2011, shortly after Hoff

had given Ward her evaluation, McCleskey called Hoff into McCleskey‟s office
                                         4


and told Hoff that Ward had accused him of giving her an unsatisfactory evaluation

in retaliation for Ward‟s refusal to lend Hoff money. McCleskey fired Hoff on the

spot, informing him that Wiley Rein‟s human resources department had received

documents indicating that Hoff had received loans from Ward in violation of stated

policy.



      On November 23, 2012, Hoff filed suit, alleging wrongful termination for

refusing to falsely certify Ward‟s performance as satisfactory—a falsity, added

Hoff, that would have violated District of Columbia laws prohibiting “fraudulent

business activities.”   Hoff also alleged that Wiley Rein‟s actions violated the

DCHRA.5 Wiley Rein moved to dismiss the complaint, arguing that Hoff had

failed to allege facts sufficient to show that his situation fell within the narrow

Adams6 exception barring termination of at-will employment, or that his

“unsatisfactory” performance evaluation for Ward, contrary to his supervisor‟s

demand, was a “protected activity” under the DCHRA. Absent a ruling on the

motion, the parties proceeded to discovery, which ended in October 2013. Wiley

Rein promptly filed a motion for summary judgment.



      5
          See supra note 2.
      6
          See supra note 1.
                                           5


         Two months later, on December 19, the trial court granted Wiley Rein‟s

pending motion to dismiss and dismissed its motion for summary judgment as

moot.7 The trial court concluded that Hoff had failed to allege facts sufficient to

bring his claim within the Adams exception to the at-will employment doctrine,

and that Hoff had also failed to show that he had been engaged in a “protected

activity” under the DCHRA. Hoff filed a timely appeal from the trial court‟s

order.


                                           II.


                                           A.


         Hoff‟s notice of appeal failed to include the grounds for seeking relief, and

neither in his brief nor at oral argument has he pursued the trial court‟s dismissal of

his retaliatory discharge count under the DCHRA. Accordingly, we consider that




         7
          The trial court also granted Wiley Rein‟s motion to strike concerning
certain facts that were alleged and certain documents that were attached to Hoff‟s
opposition to Wiley Rein‟s motion to dismiss. These rulings are not contested
here.
                                          6


issue waived8 and limit our discussion to Hoff‟s claim for wrongful termination

under Adams based on public policy.



      We “review an order granting a motion to dismiss de novo,”9 applying the

“same standard the trial court was required to apply.” 10 We accept the “allegations

in the complaint as true” and view “all facts and draw[] all reasonable inferences in

favor of the plaintiff[].”11 All “uncertainties or ambiguities in the complaint must

be resolved in favor of the pleader.”12




      8
         Under this court‟s rules, appellant‟s brief must contain a “statement of the
issues presented for review” and the “contentions” and “reasons” that support his
or her position. D.C. App. R. 28 (a)(5), (8). Having failed to challenge the trial
court‟s ruling with respect to the retaliation claim, it is waived. See Long v.
District of Columbia Police & Firefighters Retirement & Relief Bd., 728 A.2d 112,
116 n.5 (D.C. 1999) (holding that claim first raised during oral argument was
waived under Rule 28 for failure to preserve it); Ramos v. United States, 569 A.2d
158, 162 n.5 (D.C. 1990) (noting that appellant‟s failure to brief this court on Fifth
Amendment claim constituted Rule 28 waiver of claim).
      9
         Hillbroom v. PricewaterhouseCoopers LLP, 17 A.3d 566, 573 (D.C. 2011)
(citing Chamberlain v. Am. Honda Fin. Corp., 931 A.2d 1018, 1022 (D.C. 2007)).
      10
           Id.
      11
         Id. (citing Murray v. Wells Fargo Home Mortg., 953 A.2d 308, 316
(D.C. 2008)).
      12
          Id. (quoting Atkins v. Indus. Telecomms. Ass’n, 660 A.2d 885, 887 (D.C.
1995)) (internal quotation marks omitted).
                                          7



                                         B.

      Now, the merits.      As a general rule in the District of Columbia, “an

employer may discharge an at-will employee at any time and for any reason, or for

no reason at all.”13 There is, however, “a very narrow exception to the at-will

doctrine” on which Hoff relies here.14 According to this court‟s decision in Adams

v. George W. Cochran & Co., “a discharged at-will employee may sue his or her

former employer for wrongful discharge when the sole reason for the discharge is

the employee‟s refusal to violate the law, as expressed in a statute or municipal

regulation.”15     Moreover, divisions of this court are not prohibited from

“recognizing exceptions to the at-will doctrine in addition to the one adopted in

Adams.”16



      Apropos of Adams, Hoff contends that he was forced to choose between

losing his job and violating one of several criminal fraud provisions: D.C. Code



      13
           Adams, 597 A.2d at 30 (D.C. 1991) (citation omitted).
      14
           Id. at 34.
      15
           Id.
      16
           Carl v. Children’s Hosp., 702 A.2d 159, 161-62 (D.C. 1997) (en banc)
(Terry, J., concurring).
                                         8


§ 22-3221 (c) (2012 Repl.) (“false promise as to future performance”).17          He

argues, more specifically, that as “Ward‟s direct supervisor,” he was required by

Wiley Rein, “on pain of termination” of his job, to enter a false “promise” or

“statement” into “Ms. Ward‟s permanent employment record, in violation of the

plain wording of section 22-3221(c).”        By this he means a false promise or

statement that would lead third parties to believe Ward‟s future job performance

would be satisfactory, even though Hoff knew at the time he made that promise or

statement that Ward‟s performance would be sub-par.18



      In announcing the “primary” rule of statutory construction, this court has

said that “the intent of the lawmaker is to be found in the language that he [or she]




      17
          (c) False promise as to future performance. — Fraud may be committed
by means of false promise as to future performance which the accused does not
intend to perform or knows will not be performed. An intent or knowledge shall
not be established by the fact alone that one such promise was not performed.
      18
          At least this is what we understand Hoff to be saying. His brief puts his
argument this way: to avoid termination of employment, he was required to make
“false promises and statements which [Wiley Rein] intended to be used as reliable
indicators by third parties as to Ward‟s future job performance which, by virtue of
Ward‟s consistently subpar job performance, both Appellant and Appellee knew at
that time would not be performed by Ward.”
                                           9


has used.”19 Thus, we look first “at the language of the statute by itself to see if the

language is plain and admits of no more than one meaning . . . .”20 Furthermore,

“the words of the statute should be construed according to their ordinary sense and

with the meaning commonly attributed to them.”21



      The language describing fraud of various sorts can be elusive, but the

criminal fraud language of the D.C. Code § 22-3221(c), which has not as yet

received definitive interpretation, comes readily into focus not only because its

language is reasonably clear but also because it essentially tracks a particular

variety of common law fraud—“promissory representation,” or a “representation

as to future events”—which this court has interpreted in civil cases.22 In these

decisions, we have said that, for a valid civil claim, the evidence must show that a

“promise was made without the intent to perform, or that the promisor had
      19
          In re M.M.D., 662 A.2d 837, 845 (D.C. 1995) (alteration in original)
(quoting Peoples Drug Stores v. District of Columbia, 470 A.2d 751, 753 (D.C.
1983) (en banc)).
      20
           Id. (quoting Peoples Drug Stores, 470 A.2d at 753).
      21
         Peoples Drug Stores, 470 A.2d at 753 (quoting Davis v. United States,
397 A.2d 951, 956 (D.C. 1979)).
      22
          Virginia Acad. of Clinical Psychologists v. Grp. Hospitalization & Med.
Servs., 878 A.2d 1226, 1234 (D.C. 2005) (quoting Bennett v. Kiggins, 377 A.2d 57,
60-61 (D.C. 1977)).
                                          10


knowledge that the events would not occur,”23 language that essentially has been

incorporated into the criminal statute at issue here, § 22-3221(c).24 Significantly,

moreover, we have said in the civil fraud context—and find applicable to criminal

fraud as well—that a person who makes an allegedly false promise about future

performance must “positively state[] that something is to be done or is to occur,

when he knows the contrary to be true . . . .”25 A mere “prophecy or prediction of

something” that is “hoped” for “or expected to occur in the future is not actionable

upon its nonoccurrence.”26


                                          C.


      With this understanding of the law, we turn to the merits. Recall that Hoff

complains that, in order to avoid being fired, he would have had to accede to Wiley

Rein‟s demand that he violate the criminal law, § 22-3221 (c), by preparing a false

evaluation of Ward‟s job performance. In legal effect, he says, this would be a


      23
           Id.
      24
          See D.C. Code § 22-3221 (c), supra note 17 (fraud committed by means
of “false promise as to future performance which the accused does not intend to
perform or knows will not be performed”).
      25
          Virginia Acad. of Clinical Psychologists, 878 A.2d at 1234 (emphasis
added) (quoting Bennett, 377 A.2d at 61).
      26
           Bennett, 377 A.2d at 61 (citations omitted).
                                          11


promise or representation that would lead third parties to believe that Ward‟s

performance in the future would be satisfactory, even though Hoff knew at the

time he made the promise or representation that Ward‟s performance would

continue to be subpar.



       We cannot agree that Hoff states a claim that satisfies the Adams public

policy exception; he was never put to a choice that would have caused him to

violate the law he cites. If Hoff had given a false evaluation of Ward‟s job

performance as allegedly demanded by Smith, his immediate supervisor, he could

not have been subject to criminal liability under § 22-3221(c) for several reasons.

First, that evaluation, referencing only past performance, would not have been a

false promise or representation “as to future performance.”27 Moreover, even if

Hoff‟s discussion of past performance could be taken to imply satisfactory

performance in the future, that would amount to mere “prophecy or prediction,”

not the required positive statement that “something is to be done or is to occur.”28



      Second, at oral argument counsel for Hoff disclaimed any argument that the

performance evaluation would mislead third parties outside Wiley Rein, such as

      27
           See supra note 17.
      28
           Bennett, 377 A.2d at 61 (emphasis added) (citations omitted).
                                        12


prospective employers of Ward if she were let go by Wiley Rein for unsatisfactory

work. Rather, we understand counsel to have argued that a false evaluation would

have misled Wiley Rein itself about Ward‟s continuing qualifications—a strange,

and entirely unpersuasive, argument.     After all, Derek McCleskey, the firm‟s

Director of Operations, had told both Hoff and his immediate supervisor, Douglas

Smith, to give Ward an “unsatisfactory” evaluation; thus, even if Hoff had agreed

with Smith‟s request to rate Ward a “satisfactory” employee, that would not have

misled Director McCleskey, who already knew that Ward‟s performance required

improvement. Furthermore, even though counsel at oral argument contended that

Smith, along with McCleskey and “human resources,” had authority to fire Hoff

for failure to provide a false, “satisfactory” evaluation of Ward, that authority

claimed for Smith is not alleged in the complaint, nor is it a reasonable inference

from the facts pleaded. And, given Smith‟s status below McCleskey in the Wiley

Rein chain of command, Hoff‟s contention is entirely implausible, especially

because McCleskey, not Smith, fired Hoff.



      Finally, according to Hoff, McCleskey fired him after claiming that the firm

“had received documents indicating that [Hoff] had received loans from Ward, and

that this conduct violated Firm Policy and Procedures.” Hoff‟s complaint denies

any such financial transaction with Ward, but, whatever reason Wiley Rein may
                                         13


have had for firing Hoff, his complaint offers no explanation beyond the fanciful

proposition that McCleskey fired Hoff because Hoff had filed an “unsatisfactory”

evaluation of Ward—an evaluation that, as Hoff‟s own complaint acknowledges,

McCleskey himself had requested.



                                       *****


      For the foregoing reasons, the judgment of the trial court is



                                                    Affirmed.
