Bowyer v. District of Columbia

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 13, 2014 Decided July 7, 2015

No. 13-7012

GREGORY BOWYER AND GERALD PENNINGTON,
APPELLANTS

v.

DISTRICT OF COLUMBIA, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cv-00319)

Donald M. Temple argued the cause and filed the briefs for
appellants.

Holly M. Johnson, Assistant Attorney General, Office of
the Attorney General for the District of Columbia, argued the
cause for appellees. With her on the briefs were Irvin B.
Nathan, Attorney General, Todd S. Kim, Solicitor General, and
Loren L. AliKhan, Deputy Solicitor General.

Before: HENDERSON, GRIFFITH, and MILLETT, Circuit
Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.
 2

GRIFFITH, Circuit Judge:

Appellants Gregory Bowyer and Gerald Pennington sued
the District of Columbia under the D.C. Whistleblower
Protection Act, alleging that they were unlawfully reassigned
to a less desirable position in retaliation for disclosures they
allegedly made accusing their superiors of gross
mismanagement and racial discrimination in the workplace.
The district court granted summary judgment to the District,
and we affirm, concluding that Bowyer and Pennington have
failed to point to any evidence countering the District’s
legitimate, independent reason for reassigning them.

I

A

Bowyer and Pennington were investigators with the Fire
Investigations Unit of the D.C. Fire and Emergency Medical
Services Department (the Department) in 2001. In 2007, they
locked horns with new Fire Chief Dennis Rubin and his
Deputy Chief Gary Palmer over plans to diversify the entirely
African-American Fire Investigations Unit. According to
Bowyer and Pennington (the investigators), Rubin and Palmer
put in place a race-based promotion policy that advanced
unqualified white firefighters. Bowyer and Pennington filed
complaints with the Department and with the Equal
Employment Opportunity Commission in the summer of 2008,
alleging racial discrimination.

During this same period, the investigators also found
themselves at odds with the District’s Office of the Attorney
General over the way prosecutors handled two criminal cases.
The first concerned the prosecution of Timothy Bridgewater
 3

for possession of illegal fireworks and a firearm following a
sting operation the investigators ran in July 2007. According to
the investigators, the fireworks they collected from
Bridgewater at the time of his arrest went missing while in the
Fire Investigations Unit’s custody. They also allege that the
case file included staged photographs showing Bridgewater’s
firearm in the front seat of his car, differing from photographs
that Bowyer had taken at the scene of the arrest with his own
camera showing the firearm in the backseat. The investigators
assert that they told the federal prosecutor handling the case of
these irregularities in November 2007 and that Pennington
requested off the case as a result.

Though the federal government soon dropped its case
against Bridgewater, the District pursued its own. The
investigators allege that their superiors ordered them, on threat
of discipline, to meet with the District prosecutor handling the
case. While nothing in the record suggests that they did not
meet with the prosecutor, the investigators allege that Deputy
Chief Palmer nonetheless stripped them of various work
privileges and placed them in an office space with K-9 dogs in
November 2007. The investigators aver that those penalties
took place soon after they had told the federal prosecutor of the
problems they had seen with the case against Bridgewater.

The investigators allege that they informed the District
prosecutor of the missing fireworks and staged photos but that
she pressed forward anyway. Bowyer eventually testified on
behalf of Bridgewater’s defense at a pretrial hearing, telling the
same story of misconduct. The prosecutor, for her part, denied
that either Bowyer or Pennington had ever shared their
concerns with her, and she told her supervisors that Bowyer
had perjured himself at the hearing.
 4

The investigators again butted heads with District
prosecutors after they arrested a juvenile called K.A. in June
2008 for arson following a house fire. The prosecution suffered
a setback when a court quashed a confession K.A. gave during
questioning by the investigators that continued, according to
the District, despite the youth’s request for counsel.
Prosecutors were also incensed that Bowyer testified at trial
that because a new colleague had bungled the initial
investigation, he could not determine the cause of the fire even
though he had signed an arrest warrant stating that it was
arson.1

On August 21, 2008, D.C. Assistant Attorney General
Robert Hildum told Fire Chief Rubin that District prosecutors
would no longer prosecute cases that Bowyer or Pennington
had investigated or call them to testify as witnesses. Soon after,
Rubin ordered the investigators reassigned from the Fire
Investigations Unit to the Community Services Unit, where
their duties would involve menial tasks such as checking fire
hydrants and installing batteries in smoke detectors.

The investigators sued Chief Rubin, Deputy Chief Palmer,
and the District of Columbia in federal district court on
February 19, 2009, claiming that this reassignment and their
earlier loss of privileges in November 2007 were illegal acts of
retaliation under the D.C. Whistleblower Protection Act, D.C.
Code § 1-615.51 et seq. (DCWPA).2

1
On cross-examination, Bowyer claimed he signed this form
only on direct order from Deputy Chief Palmer after the officer who
was supposed to sign refused.
2
The complaint also alleged violations of 42 U.S.C. § 1983.
The district court granted summary judgment to the defendants on
these claims, see Bowyer v. District of Columbia, 910 F. Supp. 2d
 5

B

A plaintiff asserting a claim under the DCWPA must
establish a prima facie case that (1) he made a “protected
disclosure”; (2) his supervisor took or threatened to take a
“prohibited personnel action” against him; and (3) the
protected disclosure was a “contributing factor” to the
prohibited personnel action. See D.C. Code §§ 1-615.53(a),
1-615.54(b); see also Crawford v. District of Columbia, 891
A.2d 216, 218-19 (D.C. 2006); Tabb v. District of Columbia,
605 F. Supp. 2d 89, 98 (D.D.C. 2009). The Act’s definition of a
“protected disclosure” includes “any disclosure of
information . . . that the employee reasonably believes
evidences . . . [g]ross mismanagement . . . [or] [a] violation of
a federal, state, or local law.” D.C. Code § 1-615.52(a)(6).

The DCWPA adopts a burden-shifting scheme that in
some ways parallels federal Title VII jurisprudence. Once a
plaintiff has set forth a prima facie case by a preponderance of
the evidence, the burden shifts to the defendant “to prove by
clear and convincing evidence that the alleged [prohibited
personnel] action would have occurred for legitimate,
independent reasons even if the employee had not” made the
protected disclosure. D.C. Code § 1-615.54(b); see also
Johnson v. District of Columbia, 935 A.2d 1113, 1118 (D.C.
2007). If the defendant shows at summary judgment that there
is no genuine issue of disputed fact as to its asserted legitimate,
independent reason, the plaintiff must “counter[] the defense
evidence” by “proffering contrary, admissible evidence that a
jury might credit.” Johnson, 935 A.2d at 1118 n.2. The plaintiff
thus must come forward with credible evidence showing that

173, 199-213 (D.D.C. 2012), and the investigators do not challenge
that part of the court’s ruling.
 6

the legitimate, independent reason the defendant offered was
pretext for an actual, discriminatory motive or did not actually
motivate the challenged personnel action. See id. at 1118.

C

Before the district court, the investigators conceded that
the DCWPA did not create a private right of action against
individuals. Bowyer v. District of Columbia, 2009 WL
3299815 at *2 (D.D.C. Oct. 14, 2009).3 The district court thus
dismissed Rubin and Palmer from the suit, leaving the District
as the only remaining defendant. Id.4

After extensive discovery, the District moved for summary
judgment. Three of the arguments the investigators made in
response are relevant to this appeal. First, they argued that in
November 2007, Deputy Chief Palmer stripped them of
privileges and moved their workstations to a room that housed
K-9 dogs in retaliation for their disclosures to prosecutors of
anomalies in the Bridgewater investigation. Next, they argued

3
The amended statute now authorizes such a cause of action,
see D.C. Code § 1-615.54(a), but Bowyer and Pennington do not
appeal the dismissal of Rubin and Palmer. In any event, we have
previously held that the amendment did not have retroactive effect.
See Payne v. District of Columbia, 722 F.3d 345, 351-53 (D.C. Cir.
2013).
4
The court also dismissed any part of the complaint that arose
from actions that occurred more than six months before the
investigators filed their suit because they did not comply with the
DCWPA’s requirement that the mayor be provided with notice of the
time, place, cause, and circumstances of their injury within six
months of that injury. See Bowyer, 2009 WL 3299815 at *2. The
court later reinstated those parts of the complaint, however, after the
District repealed the statute’s notice provision. Bowyer v. District of
Columbia, 779 F. Supp. 2d 159, 165-66 (D.D.C. 2011).
 7

that they were reassigned to the Community Services Unit in
August 2008 in retaliation for their testimony during the trial of
K.A. And finally, they argued that their reassignment was also
retaliation for the complaints they filed with the Department
and the Equal Employment Opportunity Commission (EEOC)
alleging racial discrimination in the Fire Investigations Unit.

The district court granted the District’s motion for
summary judgment, concluding that Bowyer and Pennington
failed to show that they had made protected disclosures in
either the Bridgewater matter or the K.A. case. And even
though the district court found that the complaints of racial
discrimination filed with the EEOC were indeed protected
disclosures, it held that the investigators had failed to show that
those who reassigned them knew anything about the
complaints. The court did not consider the similar complaints
that Bowyer and Pennington filed with the Department.

This appeal followed. We have jurisdiction under 28
U.S.C. § 1291.

II

The investigators charge the district court with making
two material errors. First, they argue the court erred by holding
that they had not introduced evidence sufficient to show that
they had made protected disclosures during the Bridgewater
investigation. Second, they argue that the district court erred by
failing to consider whether complaints they filed with the
Department alleging racial discrimination caused their
reassignment. We review the entry of summary judgment de
novo, drawing all inferences from the evidence in favor of the
nonmoving party. See McCormick v. District of Columbia, 752
F.3d 980, 984 (D.C. Cir. 2014). On de novo review, we may
 8

affirm the district court’s judgment on a different theory than
used by the district court. Id. at 986.

The investigators argued in the district court that they
made protected disclosures under the DCWPA when they told
the federal and local prosecutors about alleged improprieties
related to the Bridgewater investigation. The district court
found their evidence insufficient to withstand the District’s
motion for summary judgment because they had not introduced
anything beyond their own “self-serving and uncorroborated
deposition testimony” showing that they had in fact made any
disclosures. Bowyer, 910 F. Supp. 2d at 195. Before this court,
the investigators challenge the district court’s conclusion,
arguing that the court misapplied the standard for summary
judgment by not construing the facts in their favor. Cf. Adickes
v. S.H. Kress & Co., 398 U.S. 144, 157 (1970) (holding that
courts should view facts “in the light most favorable to” the
party opposing summary judgment). Curiously, the
investigators now argue that their Bridgewater disclosures led
to a different form of retaliation than the one they asserted
below. No longer do they maintain those disclosures triggered
their 2007 loss of privileges and move to a room shared by
dogs. Instead, they argue for the first time that the Bridgewater
disclosures were the reason for their 2008 reassignment to the
Community Services Unit, and they doubled down on this
position at oral argument, see Oral Arg. Tr. 5:23-6:15. In the
district court, however, they had argued only that this
reassignment was retaliation for their testimony during the trial
of K.A. and for their complaints alleging racial discrimination.

“It is the general rule, of course, that a federal appellate
court does not consider an issue not passed upon below.”
Singleton v. Wulff, 428 U.S. 106, 120 (1976). See also
10A CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE AND
PROCEDURE § 2716 at 282-85 & nn.12-13 (3d ed. 1998).
 9

Because the investigators did not argue before the district court
that their disclosures related to the Bridgewater case led to their
reassignment to the Community Services Unit, we decline to
consider this argument on appeal.5

This leaves only the question of whether the district court
erred in overlooking the investigators’ argument that the
complaints they filed with the Department alleging racial
discrimination triggered their allegedly retaliatory
reassignment.

The district court recognized that the complaints filed with
the EEOC were protected disclosures under the DCWPA.
Bowyer, 910 F. Supp. 2d at 196. After all, those complaints
alleged violations of local law prohibiting discrimination in the
workplace. Id.; see also D.C. Code § 1-615.52(a)(6)(D). But
the court correctly concluded that these complaints could not
have contributed to the investigators’ August 21, 2008,
reassignment because they were filed after their transfer to the
Community Services Unit had already taken place. Bowyer,
910 F. Supp. 2d at 198-99. Indeed, as the district court noted,
the EEOC complaints even mention the reassignment. Id.

The district court, however, completely overlooked the
complaints alleging racial discrimination in the Fire
Investigations Unit that the investigators filed with the
Department in June 2008, two months before they were
reassigned. That was a mistake, to be sure. But it is an error that
does not help the investigators rebut the District’s explanation
for the reassignments. There is no disputed question of material

5
We need not address the district court’s conclusion that the
investigators failed to come forward at summary judgment with
evidence sufficient to show that they made protected disclosures
during the Bridgewater investigation.
 10

fact in the record that the actual cause of the investigators’
reassignment was the refusal of the Office of the Attorney
General to take future cases involving them, not the complaints
they filed with the Department. On August 21, 2008, District
Deputy Attorney General Hildum informed Chief Rubin that
District prosecutors would no longer allow Bowyer and
Pennington to participate in court proceedings and would never
again call them as witnesses due to objections from prosecutors
concerning the roles they played in both the Bridgewater and
K.A. cases. The investigators do not dispute that this
conversation took place.

Later that same day, Rubin ordered an assistant fire chief
to transfer Bowyer and Pennington out of the Fire
Investigations Unit. Rubin explained in a declaration that
“[w]orking with [District] prosecutors was the essential part of
[the investigators’] job duties . . . [and] they could no[] longer
perform this function” following the decision by the District’s
Office of the Attorney General. Hence the reassignment.

The District has made a showing that any reasonable juror
would have to find by clear and convincing evidence that the
refusal of the Office of the Attorney General to work with
either Bowyer or Pennington was a “legitimate, independent
reason[]” for their reassignment to the Community Services
Unit. See D.C. Code § 1-615.54(b). Hildum informed Rubin
that the investigators could no longer perform a core function
of their jobs, and Rubin immediately ordered the reassignment.
Just as a close temporal proximity between a protected
disclosure and an act of retaliation suggests a causal
connection, see Cones v. Shalala, 199 F.3d 512, 521 (D.C. Cir.
2000), we see a clear link between Hildum informing Rubin
that prosecutors would no longer work with the investigators
and Rubin’s near-simultaneous decision to reassign them.
 11

Significantly, the investigators never assert that the reason
the District proffered for their reassignment was pretext. Cf.
Johnson, 935 A.2d at 1118. Their only gesture in that direction
is a footnote in their reply brief that Bowyer successfully
defended disciplinary charges related to the K.A. investigation
before an administrative trial board. But that is irrelevant to the
question at hand. What matters under the DCWPA is the
reason the District reassigned Bowyer and Pennington to the
Community Services Unit. See, e.g., McCormick v. District of
Columbia, 752 F.3d 980, 986 (D.C. Cir. 2014) (disregarding an
attempt by a plaintiff to show pretext by addressing a “wholly
different factual question” than the defendant’s legitimate,
independent reason for taking an adverse action). The
unrebutted explanation the District has offered is that the
Department reassigned the investigators because District
prosecutors refused to work with either of them and not
because they had filed Equal Employment Opportunity
complaints with the Department alleging racial discrimination.
Because the investigators failed to rebut this explanation, we
hold they have failed to demonstrate a genuine issue of
disputed fact sufficient to survive summary judgment on their
DCWPA claim.

III

We affirm the district court’s order granting summary
judgment to the defendant District of Columbia.