                             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 17, 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 Williams’ [156] Motion in

Support of Jury Instruction No. 2, through which Williams requests a jury instruction mirroring

the statutory definition of the term “whistleblower” as “an employee who makes or is perceived

to have made a protected disclosure.” D.C. CODE § 1-615.52(a)(9). Upon consideration of the

parties’ submissions, the relevant authorities, and the record as a whole, the Court shall DENY

Williams’ 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: Pl.’s Mot. in
Supp. of Jury Instruction No. 2 (“Pl.’s Mem.”), ECF No. [156]; Def.’s Opp’n to Pl.’s Mot. in
Supp. of Jury Instruction No. 2, ECF No. [159]; Pl.’s Reply Mem. in Supp. of Mot. in Supp. of
Jury Instruction No. 2, ECF No. [164].
                                      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

        Under the DC-WPA, the term “whistleblower” is defined as “an employee who makes or

is perceived to have made a protected disclosure.” D.C. CODE § 1-615.52(a)(9). Williams asks

the Court to provide the jury with an instruction tracking this statutory language. See Pl.’s Mem.

at 1-2; Revised Proposed Jury Instructions, ECF No. [144], at 4. The District opposes the

request, with the focus of the parties’ dispute centering on whether an employee may recover

under the DC-WPA if she is “perceived to have,” but has not actually, made a disclosure under


                                                   2
the statute.

        The dispute presents a difficult question of first impression. On the one hand, the

“definitions” section of the DC-WPA defines a “whistleblower” as “an employee who makes or

is perceived to have made a protected disclosure.” D.C. CODE § 1-615.52(a)(9) (emphasis

added). On the other hand, the operative liability provision does not use the term

“whistleblower.” Instead, it provides 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) (emphasis added).

        Williams argues that the definition of the term “whistleblower” evidences a legislative

intent to cover “perceived” disclosures. Despite the plain language of the operative liability

provision, which on its face reflects no such intent, there is some support for Williams’ position

in the legislative history. The current definition of the term “whistleblower” traces its origins to

the District of Columbia Whistleblower Reinforcement Act of 1998 (the “DC-WRA”), 1998

D.C. Legis. Serv. 12-160 (West), which became effective on October 7, 1998. In its original

form, the DC-WRA would have defined a “whistleblower” simply as “an employee who makes a

protected disclosure.” See Council of the District of Columbia Committee on Government

Operations, Report on Bill No. 12-191 (Apr. 28, 1998), at 5.2 Subsequently, “[c]ouncilmembers

discussed how the bill might be amended to protect employees who are retaliated against because

they are preparing to make a protected disclosure, but before they actually made a disclosure.”

Id. at 10-11. Ultimately, Councilmember Carol Schwartz moved to add the perception language

to the statutory definition “in order to extend protection to an employee who is preparing to


        2
            A copy of the report is available at ECF No. [164-1] in this case.

                                                   3
make a protected disclosure, but is retaliated against before he or she is able to do so.” Id. at 11

(emphasis added). The proposed amendment passed by a unanimous voice vote. Id.

       But the District of Columbia Council never amended the operative liability provision to

incorporate the term “whistleblower” or to otherwise reflect that an individual may bring suit

where he or she is “perceived to have,” but has not actually, made a disclosure. Instead, the DC-

WPA only provides 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.” D.C. CODE § 1-615.53(a) (emphasis added). Contrary to Williams’ stated belief,

this hardly renders the perception language “superfluous,” Pl.’s Mem. at 2, as other provisions of

the DC-WPA employ the term “whistleblower,” see D.C. CODE § 1-615.54(c). Reconciling the

plain language of the statute with its legislative history may prove difficult and the tension

between the two gives rise to an interesting question—can an employee recover under the DC-

WPA where she is perceived to have, but has not actually, made a disclosure?

       However interesting that question may be in the abstract, the Court has no occasion to

answer it here for the simple reason that it has no bearing on the facts of this case. In this case, it

is undisputed that Williams made a disclosure to the District of Columbia Council. On February

14, 2006, she attended an oversight hearing before the Committee on Health and provided ten

minutes of videotaped testimony that she claims later resulted in a pattern of retaliation against

her by supervisors. See generally Williams v. Johnson, 747 F. Supp. 2d 10, 13 (D.D.C. 2010).

Given that this much is undisputed, it is strange that the parties have dedicated so much time and

attention to arguing over whether a hypothetical plaintiff could recover under the DC-WPA

where she is perceived as having made a disclosure but has not in fact made a disclosure when


                                                   4
that is not the factual record in this case.

        So far as the Court can tell, the parties’ dispute seems to have its roots in a fundamental

misunderstanding as to the pertinent statutory inquiry. The Court reiterates: the fact that

Williams made some sort of disclosure is not in dispute. Rather, the relevant dispute requiring

litigation is whether the disclosure that Williams made to the District of Columbia Council on

February 14, 2006 is “protected.” Under the DC-WPA, a disclosure of information to a public

body3 is “protected” if:

                [T]he employee reasonably believes [it] evidences:

                (A)     Gross mismanagement;

                (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.

D.C. CODE § 1-615.52(a)(6) (emphasis added). The parties have already agreed to a jury

instruction tracking this language. See Revised Proposed Jury Instructions at 5.

        The District intends to defend in this case in part on the basis that Williams “did not

report the type of serious misconduct covered by the Act.” Def.’s Stmt. of Defenses at 1 (citing

D.C. CODE § 1-615.52(a)(6)). In other words, the District will argue at trial that Williams’

        3
         The District does not dispute that the District of Columbia Council is a covered public
body. See generally Def.’s Second Revised Stmt. of Defenses & Related Notices (“Def.’s Stmt.
of Defenses”), ECF No. [150].

                                                    5
February 14, 2006 testimony before the District of Columbia Council did not include information

evidencing one of the five categories of “protected” disclosures under the DC-WPA. It appears

that Williams seeks the jury instruction presently at issue because she wants to argue that, even if

her testimony did not in fact include information falling within one of these five categories, the

District “perceived” her as having disclosed such information.

       The plain language of the DC-WPA reveals that such an argument would be misguided.

Williams does not have to show that her testimony in fact included information within one of the

five categories enumerated within the statutory definition of a “protected disclosure.” Both the

statute and case law are clear: all Williams must show is that she “reasonably believe[d]” that

her testimony included such information. D.C. CODE § 1-615.52(a)(6) (emphasis added); see

also Wilburn v. District of Columbia, 957 A.2d 921, 925 (D.C. 2008) (“[A] ‘protected

disclosure’ under the DC-WPA is one that the employee ‘reasonably believes’ evidences one or

more of the circumstances delineated in D.C. Code § 1-615.52(a)(6)(A)-(E).”). With respect to

this facet of the statutory inquiry, the District’s perception is completely irrelevant.4 The

question for the jury is whether a “disinterested observer with knowledge of the essential facts

known to and readily ascertainable” by Williams could “reasonably conclude” that the actions of

the government that were the subject her testimony evidenced the type of conduct described in

D.C. CODE § 1-615.52(a)(6)(A)-(E). Zirkle v. District of Columbia, 830 A.2d 1250, 1259-60

(D.C. 2003) (citation omitted).

       In short, Williams seeks an instruction that has no meaningful relationship to the facts of


       4
          Of course, the District’s perception may be relevant in other ways (e.g., showing that
there was a causal connection between Williams’ testimony and the challenged personnel
actions).

                                                  6
this case. Because it is undisputed that Williams made a disclosure, the employer’s perception

that a disclosure was made is inapplicable in this case. On the issue of whether the disclosure is

“protected,” the employee’s (not the employer’s) reasonable belief is at issue. It has long been

the case that “courts will never lay down as instructions to a jury, general or abstract positions,

such as are not immediately connected with and applicable to the facts of a cause [of action].”

Rhett v. Poe, 43 U.S. 457, 483 (1844); see also H. R. H. Constr. Corp. v. Conroy, 411 F.2d 722,

725 (D.C. Cir. 1969) (“[T]he trial judge need give only instructions that are related to the

evidence adduced during the trial.”) (citations omitted). Accordingly, the Court shall, in an

exercise of its discretion, decline Williams’ invitation to provide the jury with the proposed

instruction.

       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.

       /

       /

       /

       /

       /


                                                  7
                                    III. CONCLUSION

      For the reasons set forth above, Williams’ [156] Motion in Support of Jury Instruction

No. 2 shall be DENIED. An appropriate Order accompanies this Memorandum Opinion.



Date: October 17, 2011

                                                          /s/
                                                  COLLEEN KOLLAR-KOTELLY
                                                  United States District Judge




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