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Tingling-Clemmons v. District of Columbia

Court of Appeals of Columbia District

March 10, 2016


         Argued March 17, 2015

          Appeal from the Superior Court of the District of Columbia. (CA-1788B-13). (Hon. Michael L. Rankin, Trial Judge).

         David A. Branch for appellant.

         Holly 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.

         Before GLICKMAN and BECKWITH, Associate Judges, and KING, Senior Judge.

         OPINION BY: Stephen Glickman


         Glickman, Associate Judge : Michelle Tingling-Clemmons appeals the dismissal of her complaint alleging violations of the D.C. Whistleblower Protection Act[1] and the D.C. Human Rights Act[2] 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.


         In 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."

         Pursuant 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.

         Appellant 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.[3] 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.

         Appellant 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.

         The 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." [4] 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.

         Second, 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.[5] The complaint also does not specify when or to whom she protested these assignments or the contractual provision they allegedly violated.

         Lastly, 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.[6]


          We review de novo the dismissal of a complaint for failure to state a claim on which relief can be granted.[7] " 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[]." [8]

          To 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." [9] 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." [10] 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." [11] 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." [12] To satisfy Rule 8 (a), plaintiffs must " nudge[] their claims across the line from conceivable to plausible." [13]

         For the following reasons, we conclude that appellant's whistleblower, discrimination, and breach of contract claims do not show a plausible entitlement to relief.

         A. The Whistleblower Claim

          The 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." [14] 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.[15] An " illegal order" means " a directive to violate or to assist in violating a federal, state or local law, rule, or regulation." [16]

          To 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 retaliation.[17]

         The complaint does not allege that appellant refused to obey any illegal order.[18] 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.

         We find 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.[19] 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.

          As 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." [20] 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.[21]

         Where 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.[22] 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 ...

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