The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge
Plaintiff, Christina Conyers Williams, brings this action against the District of Columbia, and her supervisors Robert Johnson, individually and as Senior Deputy Director of the Addiction Prevention and Recovery Administration ("APRA") of the District of Columbia Department of Health ("DOH"), and David Anthony, individually and as Chief of Staff to the Senior Deputy Director of APRA (collectively "Defendants"). Plaintiff alleges that Defendants violated her rights under the First Amendment and the District of Columbia Whistleblower Protection Act ("WPA"), 1-615.01 et seq., by retaliating against her for her remarks during testimony before the District of Columbia Council ("D.C. Council") and during a separate meeting with a D.C. Councilman. Defendants have moved to dismiss Plaintiff's complaint under Federal Rule of Civil Procedure 12(b)(6). Upon a searching review of Defendants' Motion, Plaintiff's Opposition, Defendants' Reply, and the relevant statutes and case law, the Court shall GRANT-IN-PART and DENY-IN-PART Defendants' Motion to Dismiss. Specifically, the Court concludes that Plaintiff cannot state a First Amendment claim based upon her testimony before the D.C. Council, and shall therefore dismiss Count I of Plaintiff's First Amended Complaint insofar as it relies upon that testimony. The Court shall also dismiss any potential WPA claim against Defendants Johnson and Anthony in their individual capacity. The Court shall deny the remainder of Defendants' Motion to Dismiss.
A. Plaintiff's Employment and the ACIS Contract
Plaintiff, Christina Conyers Williams, was hired by the APRA in June 2004, and in February 2006 held the position of Chief of the Center of Research Evaluation and Grants ("CREG"). Am. Compl. ¶ 5.*fn1 Defendant Robert Johnson served as Plaintiff's immediate supervisor, and Defendant David Anthony was Mr. Johnson's assistant and Chief of Staff. Id. ¶¶ 7-8. According to Plaintiff, she had a good working relationship with Mr. Johnson prior to February 2006, id. ¶ 49, and her November 2005 performance evaluation, which Mr. Johnson completed, rated her as exceeding expectations overall and significantly exceeding expectations with respect to certain performance areas, id. ¶ 13, Ex. A.
In April 2005, Plaintiff was assigned the task of implementing APRA's Client Information System ("ACIS") software, which was purchased from Softscape, Inc. ("Softscape"), and designed to capture statistical data regarding APRA's clients, providers, and local contractors. Id. ¶ 18. Although the software had been scheduled to go on line in February or March 2005, little work had been done to that end when Plaintiff was assigned to implement the software. Id. ¶ 20. Getting ACIS on line became Plaintiff's primary job responsibility, id. ¶ 17,*fn2 and her staff grew by four employees, three contract employees and an IT specialist, id. ¶ 21. Plaintiff alleges that upon assuming responsibility for the ACIS project and throughout 2006, she repeatedly requested a copy of the Softscape contract from Pamela Shaw, the employee previously responsible for it, as well as from Mr. Johnson. Id. ¶¶ 19, 22-24. According to Plaintiff, her requests were denied, and as a result she "has not received a precise explanation of what tasks Softscape is required to perform under the terms of the contract and how much Softscape is entitled to be paid for services it performs." Id. ¶¶ 23-24.
Phase 1.0 of ACIS was intended to provide information about the experiences of clients at the detoxification unit at D.C. General Hospital. Id. ¶ 25. According to Plaintiff, Phase 1.0 went on line in June 2005, but did not work very well. Id. ¶ 26. Plaintiff therefore sought technical help from Softscape, which delayed responding, and then refused to do any work on ACIS until it was paid $175,000 cash in hand. Id. ¶¶ 26-27. Phase 2.0 of ACIS was scheduled to begin in November 2005, and provide information about six APRA programs not included in Phase 1.0, while Phase 3.0 was scheduled to begin in February 2006 and provide information about outside service contractors. Id. ¶ 29. According to Plaintiff, by the middle of September 2005, it was obvious that Phase 2.0 of ACIS would not be on line by November 2005, and in fact, Phase 2.0 had not even begun by February 2006. Id. ¶ 30.
B. February 14, 2006 D.C. Council Meeting and its Ramifications
A routine oversight hearing before the D.C. Council Committee on Health, headed by Councilman David A. Catania, was scheduled for February 14, 2006. Id. ¶ 33. In advance of that hearing, APRA received a set of questions covering every program in APRA, which were forwarded to the chief responsible for each program. Id. ¶ 34. Plaintiff alleges that she and her IT specialist provided answers to the questions about ACIS, including that Phase 2.0 would not be completed before November 2006. Id. Nevertheless, according to Plaintiff, Mr. Johnson represented to the D.C. Council that Phase 2.0 would be complete by June 2006. Id.
Mr. Johnson was to represent APRA at the oversight hearing, and Mr. Anthony briefed Mr. Johnson in preparation, using the staff answers to the advance questions. Id. ¶ 35. All APRA senior management personnel (including Plaintiff) were expected to attend the oversight hearing so that they could assist Mr. Johnson in the event that he was unsure how to respond to a question he received. Id. ¶ 36. According to Plaintiff, she attended oversight hearings quarterly, id. ¶ 45, and managers at her level were not generally expected to testify, id. ¶ 36. Nevertheless, Plaintiff "was told there was a small chance that [she] could be called to testify" at the February 14, 2006 hearing. Id. In fact, towards the end of the hearing, Councilman Catania began asking questions about ACIS, and Mr. Johnson beckoned Plaintiff to the witness table. Id. ¶ 37. Councilman Catania directed many of his questions about ACIS to Plaintiff, and Plaintiff states that she answered Councilman Catania's questions "truthfully and to the best of her ability." Id. ¶ 38. According to Plaintiff, her answers were short and concise, and her testimony lasted 10 minutes. Id. ¶ 39. During that time, Plaintiff testified that: (1) she was responsible for the implementation of ACIS; (2) as of the hearing, ACIS could only provide demographic information; and (3) ACIS would be up and running by November 2006. Id. ¶¶ 40-42.
Plaintiff alleges that her brief testimony was significant because her "disclosure that ACIS could provide only demographic data was a statement that ACIS was a major failure," because "notwithstanding all of the money spent by [the] District on ACIS, the software could not track such crucial information such as education or continuing use of drugs, which was one of the primary goals of the contract." Id. ¶ 41. Plaintiff further alleges that her testimony that ACIS would be operative by November 2006 "was another statement of major failure by the contractor that contradicted the written statement submitted to the Council by Mr. Johnson." Id. ¶ 42. Indeed, according to Plaintiff, following her testimony, Mr. Catania "sua sponte . . . raised the issue whether some kind of fraud had taken place within APRA because of the large amount of money involved." Id. ¶ 43.
The next day, Mr. Johnson scheduled a debriefing for the managers that attended the oversight hearing, which focused on whether APRA would be the target of a federal fraud investigation. Id. ¶¶ 44-46. According to Plaintiff, during the debriefing Mr. Johnson accused her of doing a poor job of answering Councilman Catania's questions, told her that her testimony made APRA look like crooks, and threatened that she would be held responsible if anything was found to be wrong with ACIS. Id. ¶¶ 47-48. Plaintiff describes the debriefing as a drastic change from her previously good working relationship with Mr. Johnson and the beginning of a "series of harassing actions" by Mr. Johnson and Mr. Anthony. Id. ¶¶ 49-50, 52. According to Plaintiff, Mr. Johnson accused her of thinking that APRA had done something wrong in connection with the ACIS contract, id. ¶ 51, told her that she should not be there and could "get out" if she thought that to be the case, id., told Plaintiff that he was tired of her asking questions, and told her that if she wanted to stay in her job, she needed to learn to be a "team player," id. ¶ 52.
C. Plaintiff's Private Meeting With Councilman Catania and its Ramifications
On March 8, 2006, Plaintiff and her husband met "privately" for an hour with Councilman Catania and two of his aides "to discuss the Softscape contract and Mr. Johnson's harassment of [Plaintiff] following her testimony before the Council." Id. ¶ 54. According to Plaintiff, Councilman Catania told Plaintiff and her husband that he had tried to get a copy of the ACIS contract and had not been provided with one. Id. ¶ 55. Plaintiff responded that she did not have a copy of the contract either and had doubts whether the contract actually existed. Id. Plaintiff asserts that, as a result of the information she provided, Councilman Catania instructed his staff to launch an investigation into the Softscape contract. Id. ¶ 56. That investigation began in the middle of March 2006 and Plaintiff alleges, on information and belief, that at that time "Mr. Johnson became aware that [Plaintiff] met with Councilman Catania and he concluded that Councilman Catania started the investigation because of [Plaintiff's] testimony before the Council and her statements to him during their private meeting in mid-March, 2006." Id. ¶ 57.
Plaintiff alleges that Mr. Johnson responded to Councilman Catania's investigation by launching an ultimately unsuccessful attempt to have Plaintiff terminated for failing to comply with a District residency preference requirement. Id. ¶¶ 59-69. Although Plaintiff was issued a Notice to Show Cause why she should not be fired for violating the residency requirement, it was ultimately dismissed in August 2006 because DOH failed to prove that Plaintiff's position was subject to a residency requirement and/or failed to prove that Plaintiff was advised that she was required to remain a District resident after she was hired. Id. ¶¶ 62, 66, 68-69. Plaintiff further alleges that while the residency investigation was pending, Mr. Anthony told another DOH employee and union steward that he was going to terminate Plaintiff, that Plaintiff was not on good terms with Mr. Johnson because of her testimony before the D.C. Council, and that Mr. Johnson said Plaintiff "talked too much" and revealed things to Councilman Catania that Mr. Johnson did not want disclosed. Id. ¶ 67.
According to Plaintiff, after Mr. Johnson learned that she was not going to be removed based on the residency requirement, he offered to find her a job outside of APRA and became hostile when she declined his offer. Id. ¶ 70. Plaintiff alleges that Mr. Johnson continued to harass Plaintiff through the fall of 2006 by: berating her, id. ¶ 71; making unnecessary work-related demands, id. ¶¶ 73-74; removing Plaintiff's responsibility for the ACIS contract without informing her and shrinking her staff as a result, id. ¶¶ 75-76; relocating Plaintiff's office space to a less desirable space and splitting her staff into different office spaces, id. ¶¶ 77-81, 84-86; removing Plaintiff's assigned parking space, id. ¶ 85; and denying Plaintiff the use of a Blackberry, id. ¶ 87. Plaintiff alleges that during the same period, Mr. Johnson repeatedly threatened to fire her, including for not being a "team player," id. ¶¶ 72, 95; began preparing a termination letter for Plaintiff, id. ¶ 88; sought permission to lower Plaintiff's performance evaluation, id. ¶ 89; directed a subordinate to audit Plaintiff's time and attendance records, id. ¶ 92; and interfered with a workers' compensation claim that ...