The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge
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'  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.*fn1
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).
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. , 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 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.*fn2 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 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 DCWPA 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 DCWPA 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 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 body*fn3 is "protected" if:
[T]he employee reasonably believes ...