March 17, 2015
from the Superior Court of the District of Columbia.
(CA-1788B-13). (Hon. Michael L. Rankin, Trial Judge).
A. Branch for appellant.
M. Johnson, Assistant Attorney General, with whom Irvin B.
Nathan, Attorney General for the District of Columbia at the
time the brief was filed, Todd S. Kim, Solicitor General, and
Loren L. AliKhan, Deputy Solicitor General, were on the
brief, for appellee.
GLICKMAN and BECKWITH, Associate Judges, and KING, Senior
BY: Stephen Glickman
Associate Judge : Michelle Tingling-Clemmons appeals
the dismissal of her complaint alleging violations of the
D.C. Whistleblower Protection Act and the D.C. Human Rights
Act and breach of contract. Her claims
arise from the termination of her employment as a Bureau
Chief in the District of Columbia Department of Health.
Because we conclude that her complaint does not assert
sufficient factual allegations to state a plausible claim for
relief, we affirm the judgment of the Superior Court. We
further hold that, in granting the District's motion to
dismiss, the court was not obliged to grant appellant leave
to file an amended complaint.
2005, appellant and the District of Columbia entered into a
settlement of a whistleblower lawsuit she had filed after
being terminated in 2002 as the District's State Director
for Special Nutrition and Commodity Distribution Programs. As
part of the 2005 settlement, the District agreed to place her
in a newly-created Bureau Chief position in the Department of
Health (DOH). The settlement agreement stated that appellant
would be compensated in this position as an " MSS
[management supervisory service] grade 15/4 at the annual
salary of $92,271" and " receive the same health
insurance benefits that all MSS employees under the authority
of the Mayor receive."
to the agreement, the DOH hired appellant in August 2005 as
its first Chief of the Nutrition and Physical Fitness Bureau
(NPFB). In that capacity, appellant was responsible for
overseeing nutrition programs funded by the U.S. Department
of Agriculture (USDA). Her salary was paid entirely from USDA
funds. She served as NPFB Bureau Chief for seven years, until
her employment by the District was terminated in July 2012.
brought her present suit in March 2013, naming as defendants
the District and one of her supervisors in the DOH, Deputy
Director for Operations Sandra Robinson. Her complaint claims
that the District and Robinson (1) violated the Whistleblower
Protection Act by terminating her in retaliation for her
disclosures of wrongdoing and her refusal to comply with
illegal orders; (2) violated the Human Rights Act by
terminating her while retaining similarly situated younger
employees; and (3) breached her 2005 settlement agreement by
terminating her in 2012 without cause. The District moved
to dismiss the complaint pursuant to Superior Court Civil
Rule 12 (b)(6), arguing that appellant did not plausibly
allege claims on which relief could be granted. The Superior
Court granted the District's motion.
alleged in her complaint that after the District re-hired her
in 2005 pursuant to their settlement agreement, senior DOH
managers " attempted to find ways to divert funds from
NPFB programs to use for programs other than the nutrition
program services the NPFB was charged with providing."
" As a result of [her] protests of and resistance to
DOH's unethical and illegal practices with respect to
misuse and diverting of funding of NPFB programs,"
appellant alleged, " a decision was made" in 2012
to terminate her and her senior managers (" two other
age-protected women" ) and move the programs she oversaw
to the Office of Aging (an executive branch agency outside
the DOH). According to the complaint, younger NPFB employees
were not terminated at this time. The complaint does not
identify who made the termination decisions. It also provides
no information as to the number or the circumstances of the
younger employees who were not terminated.
complaint alleges that appellant protested illegal practices
on the following occasions. First, early in her tenure as
Bureau Chief, in 2005 or 2006, appellant discovered that an
(unnamed) Interim Senior Director in the Maternal and Family
Health Administration (MFHA) " was paying an
administrative staffer (hired as a political favor) with
funds from NPFB." Appellant allegedly " had to
advise" the MFHA Interim Senior Deputy Director, the
Agency Personnel Officer, and the Chief Operating Officer
that " unless staff were doing work explicitly for the
USDA programs, it was a violation of USDA regulations, and it
was illegal to pay this individual with the agency
funds."  While the implication of this
allegation is that the unidentified staffer in question was
not working on a USDA-funded program, the complaint does not
directly make that allegation or otherwise specify what work
this staffer was performing.
at unspecified times from 2007 through 2012, appellant
allegedly was directed to work on projects for DOH "
while her salary was paid exclusively by the USDA." The
work assignments allegedly " violated NPFB's
agreement with the USDA," and appellant " protested
this violation of the law to senior managers at DOH."
Appellant worked on the projects " under protest."
The complaint does not describe the nature or magnitude of
the work assignments or indicate whether they interfered with
appellant's performance of what she believed to be her
proper, USDA-funded duties. The complaint also does
not specify when or to whom she protested these assignments
or the contractual provision they allegedly violated.
in 2010, a senior manager at DOH allegedly " suggested
diverting UDC's pass-through funding to DOH use."
(The complaint does not indicate whether " UDC"
refers to the University of the District of Columbia or some
other entity.) According to the complaint, appellant "
advised DOH management [not otherwise identified] that this
would be illegal because the funds were granted to UDC for
specific program functions and NPFB's only role was as
the pass through funder for it as a state partner
program." The complaint does not allege that the
suggestion to divert the funds was implemented.
review de novo the dismissal of a complaint for
failure to state a claim on which relief can be
granted. " In so doing, we apply the same
standard the trial court was required to apply, accepting the
[factual] allegations in the complaint as true and viewing
all facts and drawing all reasonable inferences in favor of
the plaintiff." 
pass muster, a complaint must be specific enough to "
give the defendant fair notice of what the . . . claim is and
the grounds upon which it rests."  It therefore must
" allege the elements of a legally viable claim,"
and its " factual allegations must be enough to raise a
right to relief above the speculative level."
 More specifically, Superior Court
Civil Rule 8 (a)'s " short and plain statement"
standard requires the complaint to " contain sufficient
factual matter, accepted as true, to state a claim to relief
that is plausible on its face."  The requirement
of facial plausibility " asks for more than a sheer
possibility that a defendant has acted unlawfully," and
a complaint falls short of showing a plausible entitlement to
relief if it " pleads facts that are merely consistent
with a defendant's liability."  To satisfy Rule 8
(a), plaintiffs must " nudge their claims across the
line from conceivable to plausible." 
following reasons, we conclude that appellant's
whistleblower, discrimination, and breach of contract claims
do not show a plausible entitlement to relief.
The Whistleblower Claim
Whistleblower Protection Act (WPA) 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 or because
of an employee's refusal to comply with an illegal
order."  A " protected disclosure"
includes " any disclosure" to a " supervisor
or a public body" of information that the employee
" reasonably believes evidences" (1) gross
mismanagement, (2) gross misuse or waste of public resources
or funds, (3) abuse of authority in connection with the
administration of a public program or the execution of a
public contract, or (4) a violation of federal, state, or
local law, rule, or regulation. An " illegal
order" means " a directive to violate or to assist
in violating a federal, state or local law, rule, or
state a claim under the WPA, appellant therefore needed to
allege facts plausibly showing that she made a protected
disclosure or refused to comply with an illegal order, on
account of which a supervisor fired her in
complaint does not allege that appellant refused to obey any
illegal order. Rather, it claims she disclosed
illegal actions (1) in 2005 or 2006, when she reported that
an employee who did not work on any USDA-funded program was
being paid with NPFB funds; (2) between 2007 and 2012, when
she protested assignments to work on non-USDA funded
projects; and (3) in 2010, when she advised Department
management that a proposed diversion of pass-through funds
would be illegal. In our view, however, appellant's
allegations relating to these disclosures did not suffice to
show a plausible claim for relief under the WPA.
the allegations to be deficient in several respects. For the
most part, we consider them too vague and conclusory to show
that appellant reasonably believed the actions she protested
were in violation of law, USDA regulations, or the conditions
imposed by the USDA. But even giving appellant the
benefit of the doubt with respect to the sufficiency of her
protected disclosure allegations, her WPA claim is still
doomed by its lack of specificity because her factual
allegations fail to demonstrate a plausible causal nexus
between her disclosures and her termination.
with other retaliation claims, the requisite " causal
connection . . . may be established by showing that the
employer had knowledge of the employee's protected
activity, and that the adverse personnel action took place
shortly after that activity."  However,
appellant failed to allege that the unidentified officials
who terminated her knew of her protected disclosures, and her
factual allegations do not give rise to a plausible inference
of knowledge on their part. And even if such knowledge could
be inferred, the complaint fails to allege that
appellant's termination in July 2012 occurred "
shortly after" she made her protected disclosures or the
relevant supervisors learned of them.
temporal proximity between the protected disclosure and the
allegedly retaliatory employment action is lacking, the
likelihood of a causal connection may be shown by an "
intervening pattern of antagonism" directed toward the
whistleblowing employee beginning " soon after" the
disclosure and continuing to the alleged
retaliation. Appellant argues that the following
allegations in her complaint show a sufficient pattern of
antagonism to justify the inference of causation:
(1) In 2006, when an NPFB program needed to relocate because
its lease expired, " DOH facilities management would not
support NPFB's move to a community agency that offered
space for a nominal fee . . . in the same neighborhood[,] nor
did it identify any other suitable replacement."
(2) In 2007, DOH senior managers " attempted to take
over control of NPFB's automated data system" and
require NPFB to participate in a " project to assess
consolidation of all agency data systems." To serve as
the point of contact, senior managers designated an IT
staffer whom appellant ...