The opinion of the court was delivered by: James E. Boasberg United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff William Hawkins is a Metropolitan Police Department detective who complained to a supervisor about MPD's "All Hands on Deck" staffing initiative. He also made his concerns known to The Washington Post. This media interview led to Hawkins's being disciplined and, ultimately, this lawsuit. He claims here that MPD's actions violated the Whistleblower Protection Act and his First Amendment rights. Defendants have now filed a Motion to Dismiss -- or, alternatively, for Summary Judgment -- some of which the Court grants.*fn1
I.Factual and Procedural Background
Hawkins has worked as a detective for the Metropolitan Police Department, an agency of Defendant District of Columbia, since 1998. Comp., ¶ 8. He is also a member of Plaintiff Fraternal Order of Police ("FOP"), a labor union. Id., ¶ 2.
In June 2009 Hawkins was assigned to investigate a home burglary. Id., ¶ 9. On June 23, in response to electronic communication he received from the victim, Hawkins informed her that he would not be able to begin work on the case until July 5, due to two upcoming All Hands on Deck ("AHOD") exercises. Id., ¶ 10. The homeowner forwarded these messages to Hawkins's supervisor, Insp. Michael Reese. Id., ¶ 11. Hawkins, meanwhile, forwarded them to Off. Kristopher Baumann, the Chairman of the FOP. Id., ¶ 12. The next day, Reese spoke with Hawkins about the email exchange, id., ¶ 13, and Hawkins expressed his concerns about the AHOD policy. Id.
On July 16, 2009, a Washington Post journalist contacted Hawkins regarding an article she was researching on the AHOD initiative. Id., ¶ 14. Hawkins alleges that he received authorization to speak to her on behalf of the FOP from Baumann. Id., ¶ 15. An article was published the next day in The Washington Post, in which Hawkins was quoted commenting on the AHOD policy and its effect on his caseload, including the burglary. Id., ¶ 16. That same day, Defendant Sgt. Thomas Boone contacted Hawkins, at the direction of Defendant Capt. Paul Shelton, regarding his disclosure to the press. Id., ¶ 17. Shelton had ordered Bonne to initiate an investigation of Hawkins, and Boone told Hawkins he would be served with a Witness Statement Report. Defendant Cmdr. Rodney Parks later served Hawkins with a reprimand for "Failure to Make Proper Notifications when Speaking to a Member of the Press." Id., ¶ 19.
Hawkins and the FOP then filed suit in the D.C. Superior Court on September 4, 2009, following which Defendants removed the case to federal court. Defendants then filed the instant Motion to Dismiss under Rule 12(b)(6), as failing to state a claim upon which relief may be granted, or, alternatively, for summary judgment under Rule 56. The case was ultimately transferred to the current Judge on April 1, 2011.
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of an action where a complaint fails to "state a claim upon which relief can be granted." When the sufficiency of a complaint is challenged under Rule 12(b)(6), the factual allegations presented in it must be presumed true. Leatherman v. Tarrant Cty. Narcotics & Coordination Unit, 507 U.S. 163, 164 (1993). The notice pleading rules are "not meant to impose a great burden on a plaintiff." Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005). And although "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), "a complaint must contain sufficient factual matter, [if] accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation omitted). Plaintiff must put forth "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged," id., and there must be "more than a sheer possibility that a defendant has acted unlawfully." Id.
A motion to dismiss under Rule 12(b)(6) must rely solely on matters within the complaint, see FED. R. CIV. P. 12(d), which includes statements adopted by reference as well as copies of written instruments joined as exhibits. FED. R. CIV. P. 10(c). Where the Court must consider "matters outside the pleadings" to reach its conclusion, a motion to dismiss "must be treated as one for summary judgment under Rule 56." FED. R. CIV. P. 12(d); see also Yates v. District of Columbia, 324 F.3d 724, 725 (D.C. Cir. 2003); Winston v. Clough, 712 F. Supp. 2d 1, 6 (D.D.C. 2010) ("[W]here both parties submit material outside the pleadings and the parties are not taken by surprise or deprived of a reasonable opportunity to contest facts averred outside the pleadings and the issues involved are discrete legal issues, the court may convert the motion to a motion for summary judgment without providing notice or the opportunity for discovery to the parties.") (internal citations omitted).
A. Count I -- Whistleblower Act
The D.C. Whistleblower Protection Act ("WPA") is meant to encourage District of Columbia employees to "report waste, fraud, abuse of authority, violations of law, or threats to public health or safety" by protecting such employees from the "retaliation or reprisal" they could otherwise face for bringing these government excesses to light. D.C. Code § 1-615.51. The WPA thus forbids an employer from "tak[ing], or threaten[ing] to take, a prohibited personnel action or otherwise retaliat[ing] against an employee because of the employee's protected disclosure." § 1-615.53(a).
In 2010 the WPA was amended in a number of ways, and both sides spend a great deal of time arguing about whether those amendments should have retroactive effect. Plaintiffs argue in favor of retroactivity, while Defendants argue against. Compare Mot. at 8-15 with Opp. at 6-9. Although one district court has found the WPA amendments not to be retroactive, see Baumann v. District of Columbia, 2011 WL 1333663, at *4 (D.D.C. 2011), this Court need not decide the issue. Even applying the new WPA, as Plaintiffs urge, does not yield them success.
To make out a prima facie case under either version of the WPA, an aggrieved employee must show by a preponderance of the evidence: (1) a protected disclosure, as defined in §1-615.52(6); (2) a prohibited personnel action, as defined in §1- 615.52(5); and (3) that the protected disclosure was a "contributing factor" or causally connected to ...