UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_________________________________________ 

 ) 

QING LU, ) 

 ) 

Plaintiff, ) 

 ) 

 v. ) 

 ) Case No. 20-cv-00461 (APM)

DISTRICT OF COLUMBIA, et al., ) 

) 

Defendants. ) 

_________________________________________ ) 

MEMORANDUM OPINION

I.

Plaintiff Qing Lu is an employee in the District of Columbia Department of Consumer and 

Regulatory Affairs (“DCRA”). Beginning in June 2016 and over the next three years, Plaintiff

repeatedly accused her coworker, S.B., of fraudulently claiming eight weeks of paid paternity leave

based on his wife’s “fake” pregnancy. She first reported her belief to the D.C. Office of the 

Inspector General (“OIG”). That same month, Plaintiff accused S.B. of ethics violations in issuing 

permits to his wife’s company, despite admitting to not having proof. A few months later, OIG 

referred Plaintiff’s fraudulent-leave allegations to DCRA, and in February 2017, DCRA found the 

allegations were unsubstantiated. Despite the investigation’s findings, Plaintiff continued to 

contact OIG and DCRA with “new evidence.” In May 2017, OIG informed Plaintiff that the 

investigation was closed and “no further action was warranted.” A few days later, Plaintiff took 

her complaints to the Board of Ethics and Government Accountability (“BEGA”). Plaintiff got 

the same response from BEGA. 

After not receiving the response she wanted from DCRA, OIG, or BEGA, Plaintiff wrote 

to the Executive Office of the Mayor, three D.C. Councilmembers, and various media outlets, 
2 

including CNN, WTOP, NBC Universal, The Washington Post and The City Paper. She continued 

to allege that S.B. submitted a fake birth certificate and that his wife wore a “fake pregnancy belly”

so that he could secure paternity leave. Plaintiff did so despite having no evidence to support her 

claims, and in the face of investigations by the DCRA, OIG, and BEGA finding no cause for 

disciplinary action against S.B. 

S.B. complained to his supervisors about Plaintiff’s harassing conduct in November 2018, 

accusing her of levying personal attacks over 10 years, including the fake pregnancy allegations. 

After S.B.’s complaint, DCRA assigned Special Investigator Tyrone Lawson to investigate S.B.’s 

claims. In February 2019, in the midst of Lawson’s investigation, Plaintiff repeated her allegations 

to D.C. Mayor Muriel Bowser in person and via email. 

Lawson conducted a three-month-long investigation, resulting in a 150-page report. The 

investigation (“Lawson Report”) concluded that Plaintiff “routinely misrepresented and falsified 

material facts” in her official complaints, was “insubordinate on numerous occasions,” “willfully 

reported false or misleading information to her supervisors on several occasions,” and made false 

statements during interviews in connection with the investigation. Defs.’ Mot. to Dismiss & for 

Summ. J., ECF No. 79 [hereinafter Defs.’ Mot.], Ex. 1, ECF No. 79-1 [hereinafter “Lawson 

Report”], at 2. Based on the Lawson Report, Defendant Sydney Lester (S.B. and Plaintiff’s 

immediate supervisor) recommended a 10-day suspension of Plaintiff. Lester’s supervisor, 

Defendant Clarence Whitescarver, agreed with the recommendation to suspend Plaintiff but 

reduced the suspension to eight days. Plaintiff’s suspension was premised on the false and 

misleading statements she made to the Mayor and her “assertion that the investigatory process 

[was] flawed,” which had “an unacceptable impact toward degrading public confidence in the 
3 

conduct of the District government[] and its processes.” Defs.’ Mot., Ex. 4, ECF No. 79-4 

[hereinafter Final Suspension Notice], at 3. After receiving the suspension, Plaintiff filed this suit. 

Plaintiff brings claims under the District of Columbia Whistleblower Protection Act, 

D.C. Code § 1-615.51, against the District of Columbia (“the District”) and the supervisors 

responsible for imposing the suspension, Sydney Lester and Clarence Whitescarver (together, 

“Defendants”). She also asserts violations of the First Amendment under 42 U.S.C. § 1983 against 

Lester and Whitescarver. Before the court are Defendants’ motion for summary judgment and 

Plaintiff’s partial motion for summary judgment. Defs.’ Mot.; Pl.’s Mot. for Partial Summ. J., 

ECF No. 77 [hereinafter Pl.’s Mot.]. 

As discussed below, Plaintiff has failed to bring forward sufficient evidence to support her 

claims. Accordingly, Defendants’ motion for summary judgment is granted and Plaintiff’s partial 

motion for summary judgment is denied. 

II. 

 Summary judgment is appropriate “if the movant shows that there is no genuine dispute 

as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.

56(a). A material fact is one that is capable of affecting the outcome of the litigation, and a 

genuine dispute exists when “a reasonable jury could return a verdict for the nonmoving party.” 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In assessing a motion for summary 

judgment, the court looks at the evidence in the light most favorable to the nonmoving party and 

draws all justifiable inferences in that party’s favor. Id. at 255. 

“To defeat a motion for summary judgment, the non-moving party must offer more than 

mere unsupported allegations or denials.” Dormu v. District of Columbia, 795 F. Supp. 2d 7, 17 

(D.D.C. 2011). Its opposition must be “supported by affidavits, declarations, or other competent 
4 

evidence, setting forth specific facts showing that there is a genuine issue for trial.” Elzeneiny v. 

District of Columbia, 125 F. Supp. 3d 18, 28 (D.D.C. 2015). Summary judgment, then, is 

appropriate when the nonmoving party fails to offer “evidence on which the jury could reasonably 

find for the [nonmovant].” Anderson, 477 U.S. at 252. 

III.

A.

The court starts with Plaintiff’s § 1983 claims. Pl.’s Original Compl., ECF No. 1 

[hereinafter Compl.], ¶¶ 11, 13. Plaintiff alleges that Defendants1 violated her First Amendment 

rights when they suspended her for reporting “her belief that S.B. committed benefit[s] fraud.” 

Compl. ¶ 18.2. Defendants respond that Plaintiff’s speech is about a “personnel workplace 

dispute,” and not a matter of public concern, and therefore does not enjoy constitutional protection; 

they also argue that the First Amendment does not protect “false statements about verifiable facts.” 

Defs.’ Mot. at 52–53. Even if the speech is protected, Defendants continue, they had “adequate 

justification to suspend [Plaintiff] for eight (or ten) days based on the District’s needs as an 

employer.” Id. at 56 (cleaned up). 

It is well established “that a state cannot condition public employment on a basis that 

infringes the employee’s constitutionally protected interest in freedom of expression.” Connick v. 

Myers, 461 U.S. 138, 142 (1983). However, “[w]hen a citizen enters government service, the 

citizen by necessity must accept certain limitations on his or her freedom” because “[g]overnment 

employers, like private employers, need a significant degree of control over their employees’ 

words and actions; without it, there would be little chance for the efficient provision of public 

services.” Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). The Supreme Court has made clear 

1 With respect to the court’s discussion of Plaintiff’s § 1983 claims, “Defendants” refers only to Lester and 

Whitescarver. Plaintiff has not brought a § 1983 claim against the District. 
5 

that the government, as an employer, has broader powers than the government has as a sovereign. 

Waters v. Churchill, 511 U.S. 661, 671–72 (1994). However, because “a citizen who works for 

the government is nonetheless a citizen,” the Court has held that if “employees are speaking as 

citizens about matters of public concern, they must face only those speech restrictions that are 

necessary for their employers to operate efficiently and effectively.” Garcetti, 547 U.S. at 419. 

“As a general matter, Pickering [v. Board of Education, 391 U.S. 563 (1968)] and its 

progeny continue to be the meter by which the First Amendment rights of public employees are 

measured.” Baumann v. District of Columbia, 795 F.3d 209, 215 (D.C. Cir. 2015) (internal 

quotations omitted). The D.C. Circuit uses a “four-element test to determine whether a public 

employee has established a claim of retaliation in violation of his First Amendment rights.” 

LeFande v. District of Columbia (LeFande II), 841 F.3d 485, 493 (D.C. Cir. 2016). 

To survive summary judgment, Plaintiff must proffer sufficient evidence to show that: 

“(1) [she spoke] as a citizen on a matter of public concern; (2) [her] interest in speaking on matters 

of public concern . . . outweigh[s] the government’s interest in promoting efficiency; (3) [her]

protected speech [was] a substantial or motivating factor in prompting the retaliation; and (4) the 

government must be unable to show that it would have reached the same decision absent the 

protected speech.” Id. at 494. “The first two elements involve questions of law” for the court to 

resolve, and the “second two implicate questions of fact.” Id. Because the court finds in 

Defendants’ favor as a matter of law on the first two elements, it does not reach the third and 

fourth. 

1. 

Private Citizen Speaking on a Matter of Public Concern. “Whether an employee’s speech 

addresses a matter of public concern must be determined by the content, form, and context of a 
6 

given statement, as revealed by the whole record.” Connick, 461 U.S. at 147–48. The overall 

inquiry is whether the “objective of the speech—as determined by content, form, and context—

was to bring wrongdoing to light or to further some purely private interest.” Kubiak v. City of 

Chicago, 810 F.3d 476, 483 (7th Cir. 2016) (internal quotation marks omitted). 

Content. Content is “the greatest single factor in the Connick inquiry.” Desrochers v. City 

of San Bernardino, 572 F.3d 703, 710 (9th Cir. 2009) (internal quotation marks omitted). Speech 

is not of public concern when it “deals with individual personnel disputes and grievances 

and . . . the information would be of no relevance to the public’s evaluation of the performance of 

governmental agencies.” LeFande v. District of Columbia (LeFande I), 613 F.3d 1155, 1159 (D.C. 

Cir. 2010) (internal quotation marks omitted). “On the other hand, speech that concerns issues 

about which information is needed or appropriate to enable members of society to make informed 

decisions about the operation of their government merits the highest degree of first amendment 

protection.” Id. (internal quotation marks omitted). The “public interest is near its zenith when 

ensuring . . . that public funds are not purloined or wasted.” Handy-Clay v. City of Memphis, 695 

F.3d 531, 543 (6th Cir. 2012) (internal quotation marks omitted). 

Plaintiff argues that her speech regarding “an employee’s fraudulently obtaining payment 

from the District” is a matter of public concern because it brings “official misconduct to light.” 

Pl.’s Opp’n to Defs.’ Mot., ECF No. 87 [hereinafter Pl.’s Opp’n], at 26–27 (internal quotation 

marks omitted). According to Plaintiff, the fact that multiple District agencies investigated S.B.’s 

paternity leave application and found nothing wrong “does not make [her] disclosures any less of 

[a] public interest.” Id. at 28. Defendants, for their part, argue that “the First Amendment does 

not protect statements that express or imply a verifiably false fact,” and that Plaintiff was “not 

speaking on a matter of public concern because she was making demonstrably false and misleading 
7 

statements about facts that had been repeatedly verified for her” by the DCRA, OIG, and BEGA. 

Defs.’ Mot. at 52, 54 (internal quotation marks omitted). 

Defendants’ argument that Plaintiff’s speech does not touch on a matter of public concern 

because it is demonstrably false or misleading is unavailing. Other than intentionally or recklessly 

false statements, “truthfulness . . . is not relevant in determining whether the speech involves a 

matter of public concern.” Westmoreland v. Sutherland, 662 F.3d 714, 720 (6th Cir. 2011). 

Defendants do not argue Plaintiff’s statements were intentionally or recklessly false. Because 

Plaintiff’s speech concerned whether “public funds are . . . purloined or wasted,” Handy-Clay, 695 

F.3d at 543, and is at least nominally related to the “public’s evaluation of the performance of 

governmental agencies,” LeFande I, 613 F.3d at 1159, the content factor weighs in Plaintiff’s 

favor. 

Form. The form factor considers to whom the speech was communicated. A “limited 

audience weighs against a claim of protected speech,” Desrochers, 572 F.3d at 714 (cleaned up), 

and speech is more likely to be considered public if communicated to the press, as opposed to an 

internal-employee-grievance process. See, e.g., Kubiak, 810 F.3d at 483 (“The fact that 

[Plaintiff’s] complaints about [her coworker] were directed up the chain of command suggests that 

[Plaintiff’s] speech did not address a matter of public concern.”). Plaintiff’s complaints were 

largely “directed up the chain of command,” but she also contacted local politicians and news 

outlets to share her concern about S.B.’s alleged abuse of parental leave and the resulting misuse 

of public funds. Defs.’ Mot. at 2–3, 41. The form factor of the Connick inquiry thus weighs in 

Plaintiff’s favor. Cf. Desrochers, 572 F.3d at 718 (finding no public concern where the “subject 

matter of the speech before us at best relates only marginally to issues of public concern, the 
8 

grievances were motivated by a personal dispute, and the [plaintiffs’] concerns were never relayed 

to the press or the public” (internal quotation marks omitted)).

Context. Regarding the context of Plaintiff’s speech, the inquiry is whether Plaintiff spoke 

to “bring to light actual or potential wrongdoing” or whether the speech is more “accurately 

characterized as an employee grievance.” Connick, 461 U.S. at 148, 154. Despite Plaintiff’s

insistence that her speech was directed at bringing S.B.’s wrongdoing to light, the record tells a 

different story. There is substantial evidence that leads the court to find that Plaintiff’s actions 

were rooted more in a long-standing personal grievance than in bringing malfeasance to light. This 

finding requires an extended discussion of the facts. 

Plaintiff’s accusations began as early as June 2016, when she wrote to OIG that she 

suspected that S.B.’s “baby story [was] a fiction” because his wife had “no . . . noticeable 

pregnancy on her body” the month before S.B. took paternity leave.2

 Lawson Report at 65, 68.

3

 

Plaintiff expressed her belief that S.B. was facing “a serious offense [which] may lead to prison 

time” (speeding and driving with a suspended license) that was scheduled for trial during his 

paternity leave, and that this timing somehow was “consisten[t] with [her] speculation that the 

baby setup could be a fraud.” Id. at 66–68. In other words, Plaintiff speculated that S.B. made up 

his wife’s pregnancy and the need for paternity leave in order to serve jail time without tipping off 

his employer. 

In August 2016, Plaintiff emailed DCRA accusing S.B. of improperly assigning permits to 

his wife’s company, noting “the possibility of conflict of interest and the extreme self-serving 

intentions.” Defs.’ Mot, Ex. 5, ECF No. 79-5 [hereinafter Defs.’ Ex. 5], at 9. That month, Lester 

2 Plaintiff alleged S.B.’s wife faked two pregnancies, one early in 2015 and one in May 2016. Lawson Report at 58. 3 Quotes from the Lawson Report reference direct statements made by Plaintiff. The court uses ECF pagination for 

all Exhibits.
9 

emailed Plaintiff, noting that “for several years . . . you have made several allegation[s] about the 

conduct of” S.B. that have become “more serious as time progressed,” and the recent ethicspermitting allegations had “legal implications that cannot be ignored.” Lawson Report at 60. 

Lester informed Plaintiff that there was “no evidence to conclude any wrong doing [sic],” and 

asked her to present “proof that backs up [her] allegations.” Id. Plaintiff agreed to provide 

evidence, but when the two met Plaintiff instead demanded Lester provide evidence, asking “what 

information have you provided to draw [the] conclusion that there was no . . . wrong doing [sic]?” 

Id. at 58. In September 2016, Plaintiff emailed two other DCRA employees complaining about 

Lester’s response to her ethics complaint, lamenting that “even [if] I [was] not able to present any 

proof immediately – due to my position in the organization and limited access to certain 

information – that still does not mean the problem was not in existence,” and that Lester “should 

have been the one to search for and locate the problem.” Id. In December 2016, S.B. was fined 

$1,000 for the seemingly less serious violation of “[taking] official action on permit applications 

submitted by his spouse, on behalf [of] her company.” Pl.’s Mot., Pl.’s App’x, ECF No. 77-2, at 

23–26. 

Meanwhile, Plaintiff continued to accuse S.B. of benefits fraud. In October 2016, OIG 

referred the fake-pregnancy complaint to DCRA to investigate. Lawson Report at 56. In February 

2017, Plaintiff emailed DCRA asking for an update on whether her allegations had been 

“substantiated, unsubstantiated, [or found] inconclusive.” Id. at 62. DCRA notified Plaintiff that

month that the investigation had “come to an end,” and for a moment Plaintiff seemed to accept 

this conclusion, writing that “there will [be] no more communications from me on this matter.” 

Id. at 64. However, soon after, Plaintiff emailed DCRA with new evidence that she hoped would 

“provide[] some new perspective.” Id. at 74. It did not. Id. (“This has not provided any new 
10 

perspective[;] the agency has confirmed all required documentation needed for an approval [of 

parental leave.]”). 

Undeterred, the next month, March 2017, Plaintiff sent a four-page email with six 

attachments to OIG , demanding to see S.B.’s child’s birth certificate. Defs.’ Mot, Ex. 7, ECF No. 

79-7 [hereinafter Defs.’ Ex. 7], at 2, 4. On May 10, 2017, OIG informed Plaintiff that they 

“conducted an independent analysis of the documentation provided by [DCRA] and determined 

that no further action by the OIG is warranted.” Id. at 15. 

Plaintiff did not accept that answer. Six days later she filed a complaint with BEGA, 

alleging that S.B. “abused his Paid Family Leave by purchasing, or forging, a document to deceive 

the government about the birth of his daughter.” Lawson Report at 83. In July, BEGA informed 

Plaintiff that “[a]fter an interview with [S.B.] and a review of relevant documents obtained by 

BEGA investigators, there [was] insufficient evidence to support a reasonable belief that a 

violation of the Code of Conduct occurred.” Id. In September, DCRA Human Resources

confirmed that DCRA, OIG, and BEGA investigated Plaintiff’s concerns and “they could not find 

any cause for the agency to take disciplinary action against [S.B.],” and told Plaintiff to “consider 

this the final response on behalf of the agency as the matter has been investigated and deemed 

closed.” Id. at 90. 

At this point, Plaintiff had been informed by three government agencies that, after an 

investigation and review of records, her allegations were unsubstantiated. But that did not dissuade 

her. Plaintiff wrote to the Executive Office of the Mayor (“EOM”) in September 2017. Id. at 95. 

Shortly after, EOM responded that the matter had been investigated and “no further action [would 

be] taken.” Id. at 98. Still, Plaintiff continued to raise the same allegations to DCRA, OIG, and 

BEGA over the next two years. See, e.g., id. at 113–118. During this time, she also contacted the 
11 

media about S.B.’s alleged fake pregnancy scheme. See, e.g., id. at 119–20, 128–29. In October 

2018, Plaintiff took her allegations to the D.C. Council. See id. at 135–144; Defs.’ Mot., Ex. 3, 

ECF No. 79-3, at 32. S.B filed a complaint with his supervisors in November 2018. Lawson 

Report at 2–3. 

In February 2019, after S.B.’s complaint, Plaintiff took her accusations to the highestranking District of Columbia official: Mayor Bowser. During a visit by the Mayor, Plaintiff 

approached her and the Acting DCRA Director in person and told them that S.B. “took eight weeks 

[of] government paternity leave without having a baby” and his “wife likely was wearing a pillow 

underneath her clothes.” Defs.’ Mot., Ex. 12, ECF No. 79-12 [hereinafter “Lu Deposition”], at 

7:22–8:3. The next day, Plaintiff emailed Mayor Bowser and the Acting DCRA Director repeating 

her claims about “a paternity fraud that has been going on for almost 3 years” and accusing 

government officials of using “their official power to make this crime go away.” Lawson Report 

at 146–47. These contacts came more than two-and-a-half years after her initial complaint. 

Despite making repeated allegations of wrongdoing over the course of years, Plaintiff never 

once supported any of them with evidence. Instead, she continued to demand that the agencies 

investigate and produce evidence to confirm her mere suspicion that S.B.’s wife faked her 

pregnancy. See, e.g., Defs.’ Ex. 7 at 3 (stating on March 5, 2017, “I have sensed [a] very evident 

unwillingness of my agency to take any initiative to investigate and to request any new proof”); 

id. at 2 (same email demanding that DCRA “verify [S.B.’s] medical insurance statement to see if 

there is a statement for induced labor, and also request[] him to submit [a] government issued Birth 

Certificate” (internal quotation marks omitted)). 

Given this extensive record, the court believes the context factor weighs heavily in 

Defendants’ favor. It is clear that, however valid Plaintiff’s initial report of her concerns might 
12 

have been, over time her speech related primarily to a personal grievance with S.B. and actually 

“concerned a private issue.” See Kubiak, 810 F.3d at 484. 

Weighing of Factors. Evaluating the content, form, and context of Plaintiff’s speech, the 

court holds that these factors tip in favor of treating Plaintiff’s speech as a matter of public concern. 

Although the court finds that Plaintiff’s speech ultimately related to a personal vendetta, her motive 

“is relevant as part of the context in which the speech was made,” but it is not dispositive of the 

inquiry. Id. at 483. The Sixth Circuit’s decision in Handy-Clay supports this conclusion. There, 

the plaintiff similarly alleged that city employees were abusing city leave and payment policies. 

Handy-Clay, 695 F.3d at 536. The plaintiff repeatedly raised her concerns “about corruption and 

malfeasance in the City Attorney’s Office” to the City Attorney, the Senior Legal Attorney, the

acting Deputy City Attorney, the Chief Administrative Officer, a city payroll employee, and a city 

councilman. Id. at 536–37. No action was taken in response, but plaintiff “nevertheless continued 

to contact” the City Attorney and various employees in the Mayor’s office “regarding her 

suspicions” that city employees were abusing leave policies and requested an investigation. Id. at 

537. Plaintiff was fired. She then sued the City for retaliation in violation of, amongst other things, 

her First Amendment rights. Id. The district court dismissed her First Amendment claim, finding 

that plaintiff was not speaking on a matter of public concern because her complaint “had the ring 

of internal office politics.” Id. at 543 (cleaned up). The Sixth Circuit reversed, explaining that the 

“district court should have looked not at the motivation for speaking but at the content of the 

speech.” Id. at 543–44. The court held that, even if the plaintiff was partially motivated by 

personal grievances, her “communications alleging corruption and mismanagement by public 

employees . . . [constituted] speech on a matter of public concern.” Id. at 544. So, too, here. 
13 

Defendants argue that “Plaintiff’s years long effort to get someone to develop proof of her 

allegations that her coworker made up a daughter to obtain parental leave is . . . a personnel 

workplace dispute.” Defs.’ Mot. at 52. This court generally agrees. However, a public employee 

can still be speaking on a matter of public concern even if they were motivated by personal 

grievances in addition to the public concern. See Chappel v. Montgomery Cty. Fire Protection 

Dist. No. 1, 131 F.3d 564, 574 (6th Cir. 1997) (“[T]he argument that an individual’s personal

motives for speaking may dispositively determine whether that individual’s speech addresses a 

matter of public concern is plainly illogical and contrary to the broader purposes of the First 

Amendment.”); Montery v. City of Yonkers, 890 F.3d 386, 400 (2d Cir. 2018) (reaffirming that an 

“individual motivated by a personal grievance can simultaneously speak on a matter affecting the 

public at large”). 

Although the court finds that Plaintiff was speaking on a matter of public concern, her First 

Amendment interest in the speech ultimately was “limited.” Connick, 461 U.S. at 154. The 

Supreme Court’s decision in Connick is instructive. There, the plaintiff distributed a questionnaire 

to colleagues regarding her supervisors and certain office policies. The Court found only one 

question was related to a matter of public concern, and thus Plaintiff’s speech “touched upon 

matters of public concern in only a most limited sense” and was actually more “accurately 

characterized as an employee grievance concerning internal office policy.” Id. The Court 

explained that the limited First Amendment interest did not require her employer to “tolerate action 

which he reasonably believed would disrupt the office, undermine his authority, and destroy close 

working relationships.” Id. The Court cautioned that “a stronger showing may be necessary if the 

employee’s speech more substantially involved matters of public concern.” Id. at 152. Plaintiff 

in this case enjoys a limited First Amendment interest for the same reasons. Though touching on 
14 

a matter of public concern, Plaintiff’s speech over time about a single employee’s alleged benefits 

fraud primarily took on the character of a personal grievance against S.B. Plaintiff was not 

complaining about systemic violations by her employer; rather, her “whistleblowing” amounted 

to a multi-year, dogged effort to hold a single employee accountable for an alleged fraud for which 

she never produced any evidence and which no investigation found substantiated. Her First 

Amendment interest in her speech therefore was “limited.” 

2. 

Pickering Balancing Test. The second prong of the Pickering test requires courts to 

“consider whether the governmental interest in promoting the efficiency of the public services it 

performs through its employees outweighs the employee’s interest, as a citizen, in commenting 

upon matters of public concern.” Bowie v. Maddox, 642 F.3d 1122, 1133 (D.C. Cir. 2011). The 

analysis “involves a sliding scale, in which the amount of disruption a public employer has to 

tolerate is directly proportional to the importance of the disputed speech to the public.” Munroe 

v. Cent. Bucks Sch. Dist., 805 F.3d 454, 472 (3d Cir. 2015) (internal quotation marks omitted); 

see, e.g., Connick, 461 U.S. at 150 (“Pickering unmistakably states . . . that the state’s burden in 

justifying a particular discharge varies depending upon the nature of the employee’s expression.”); 

Hernandez v. City of Phoenix, 43 F.4th 966, 977 (9th Cir. 2022) (“The more substantially an 

employee’s speech involves matters of public concern, the weightier the government employer’s 

interests must be in preventing disruption of the workplace or impairment of the employer’s 

mission.”); Miller v. Clinton County, 544 F.3d 542, 548 (3d Cir. 2008) (“The balancing we must 

undertake is a fact-intensive inquiry . . . and must yield different results depending on the relative 

strengths of the issue of public concern and the employer’s interest.”). 
15 

The inquiry is “whether the statement impairs discipline by superiors or harmony among 

co-workers, has a detrimental impact on close working relationships for which personal loyalty 

and confidence are necessary, or impedes the performance of the speaker’s duties or interferes 

with the regular operation of the enterprise.” Rankin v. McPherson, 483 U.S. 378, 388 (1987) 

(citing Pickering, 391 U.S. at 570–573). The government employer needs to articulate some threat 

to maintaining discipline and harmony. See Wainscott v. Henry, 315 F.3d 844, 852 (7th Cir. 2003) 

(finding Pickering balancing test weighed in employee’s favor when employer’s reasoning 

“fail[ed] to persuade [the court] that a potential threat to discipline or harmony exists”). However, 

“a showing of actual disruptiveness is not required; a government employer is allowed to consider 

the potential disruptiveness of the employee’s speech.” Baumann, 795 F.3d at 217; see Connick, 

461 U.S. at 152. 

Defendants argue that “resisting your employer’s repeated independent determinations that 

your coworker submitted sufficient documentation to qualify for parental leave both impairs 

discipline and interferes with the regular operation of the enterprise, and that making allegations 

directly to your coworker that his wife did not give birth to a daughter for whom he took parental 

leave . . . impairs harmony among coworkers.” Defs.’ Mot. at 54 (cleaned up). Plaintiff responds 

that she “was disciplined not based on allegations of harassment, but because she was deemed to 

have lied to [Mayor Bowser] on February 5 and 6, 2019,” and argues that there is no evidence that 

the Executive Office of the Mayor (“EOM”) was disrupted by Plaintiff’s comments. Pl.’s Opp’n 

at 29. 

Plaintiff’s argument misses the mark. First, Plaintiff’s view of the reasons for her 

suspension is too myopic. To be sure, the disciplinary charge for which she was held responsible 

was “knowingly and willfully report[ing] false or misleading information or purposely omit[ing] 
16 

material facts to a supervisor,” namely, the Mayor. Final Suspension Notice at 1. But 

Whitescarver made that determination based on the whole body of her conduct, including her 

harassment of S.B. Whitescarver said that his decision to discipline Plaintiff was based upon, 

among other things, “a full review of the supporting documentation” of the suspension 

recommendation by Plaintiff’s immediate supervisor, Lester. Id. Lester’s recommendation in turn 

referenced the 150-page Lawson Report and its numerous exhibits. Defs.’ Mot, Ex. 2., ECF No. 

79-2, at 1–3. Whitescarver therefore was aware of Plaintiff’s full history of making baseless 

allegations against S.B. 

Moreover, in finding that Plaintiff had been untruthful or misleading to the Mayor, 

Whitescarver found that Plaintiff willfully “obfuscate[d]” the truth by failing to disclose the 

“variety of District agencies, officials, supervisors, and investigator(s)” that had notified her “the 

matter had been investigated and closed without having identified an incident of fraud or leave 

abuse by the alleged perpetrator, Mr. [S.B.].” Final Suspension Notice at 2. Whitescarver’s 

decision, by referencing the findings of no wrongdoing by multiple investigations and Plaintiff’s 

refusal to accept them, therefore necessarily rested on the entirety of Plaintiff’s actions. Id. (“Your 

responses also indicate that you have not fully conceded to the conclusions of the investigations 

or supervisory direction provided to you in this case.”). Her suspension therefore was not simply 

about the single incident with the Mayor. 

Second, the question is whether the harmony in Plaintiff’s workplace was impaired, not 

whether the harmony at EOM was impaired. And, as to her workplace, the employer need not 

prove “actual disruptiveness,” a showing of the “potential disruptiveness of the employee’s 

speech” is sufficient. Baumann, 795 F.3d at 217. And on that score, the Supreme Court has said 

courts generally must defer to the employer’s assessment of the impact of an employee’s behavior 
17 

on the workplace. Waters, 511 U.S. at 673 (“[W]e have consistently given greater deference to 

government predictions of harm used to justify restriction of employee speech than to predictions 

of harm used to justify restrictions on the speech of the public at large.”). Here, Whitescarver 

justified Plaintiff’s suspension based on the adverse workplace consequences of her conduct. 

Among other things, he found: (1) “[t]he offenses are serious and do impair operational 

efficiency”; (2) Plaintiff’s use of “work time” to continue to make baseless allegations of fraud 

and abuse demonstrated an “apparent disregard to the adverse effect in the workplace for [her] 

actions,” which was an “aggravating factor”; (3) “persistent, unsubstantiated allegations of 

impropriety on the part of an agency employee, together with an assertion that the investigatory 

process is flawed due to findings that do not support your allegations does have an unacceptable 

impact toward degrading public confidence in the conduct of the District government[] and its 

processes”; and (4) the suspension “will impress upon her the need for her to stop engaging in 

making false statements about her coworkers.” Final Suspension Notice at 2–3. The court must 

give “substantial weight to [Whitescarver’s] reasonable predictions of disruption, even when the 

speech involved is on a matter of public concern.” Waters, 511 U.S. at 673. 

There is also ample record evidence to support Whitescarver’s assessments. S.B. 

eventually complained to the former Chief Administrative Officer, Walter Crawford, copying 

Lester and Deputy Chief Building Official Christopher Bailey. Lawson Report at 2. S.B. called 

Plaintiff’s “direct accusations that [his] wife faked her pregnancy so that [he] could get family 

leave” “slanderous” and “unbearable,” and he accused Plaintiff of “creat[ing] a hostile work 

environment.” Id. at 3. The record shows Plaintiff interrupted work meetings to ask questions 

like “how do we handle another employee using their wife with a fake belly to fake a pregnancy 

and then the father requesting family leave?” Id. at 37. Plaintiff left print outs of Google searches 
18 

of “fake pregnancy” in the office for S.B. to find. Id. at 40. Plaintiff confronted S.B. in the 

workplace about his wife allegedly faking a pregnancy. Id. at 36. If “a government employer can 

intervene before an employee’s speech actually disrupts the functioning of an office,” they can 

certainly intervene after the speech causes disruption. LeFande II, 841 F.3d at 494 (emphasis 

added). Additionally, Connick explained that the “manner, time, and place” in which speech is 

delivered matters. Connick, 461 U.S. at 153. The fact that Plaintiff primarily “exercised her rights 

to speech at the office supports [the District’s] fears that the functioning of [the] office was 

endangered.” Id. 

Furthermore, factors that are irrelevant to the public concern inquiry, such as tone and 

truthfulness, are relevant at the second prong of the Pickering balancing test. The “inappropriate 

tone of the speech . . . could play a critical role in ascertaining the existence and likelihood of 

disruption,” because comments are more likely to “impair discipline or employee harmony if they 

are phrased in less elevated—and more opprobrious—terms.” Munroe, 805 F.3d at 457 (internal 

quotation marks omitted). Additionally, “the truthfulness of [an employee’s] statements may be 

relevant . . . in striking the appropriate balance between the employee’s right to free speech and 

the employer’s interest in efficient administration.” Westmoreland, 662 F.3d at 721. 

Both of these factors weigh in Defendants’ favor. Plaintiff’s disdain for S.B. and her 

supervisors is evident in her testimony and emails to the various government agencies she enlisted

in investigating S.B. Plaintiff testified that she “firmly believe[s] [that S.B. is] dishonest,” showing 

that her persistence in making allegations was, at least in part, a product of her animosity towards 

S.B. Lu Deposition at 143:6. In emails, she wrote that S.B. has “deep character problems, 

especially his unhealthy attitude towards money and extreme selfishness.” Defs.’ Ex. 5 at 6. 

Plaintiff’s tone throughout the record appears “opprobrious” and even she acknowledged that she 
19 

“sounds crazy.” Lawson Report at 72–73. Plaintiff accused DCRA of “deliberately avoiding 

finding the truth by NOT verifying the document [SB] provided,” and of “not only negligen[ce] 

but also abus[ing] the system.” Id. at 94. In her email to Mayor Bowser, Plaintiff accused DCRA, 

OIG, BEGA, and DCHR of “work[ing] together to use their governmental official power to make 

this crime go away” and using “each other’s negligence to defend their own negligence.” Lawson 

Report at 146–47. 

With respect to truthfulness, DCRA, OIG, and BEGA investigated Plaintiff’s complaints, 

and found insufficient evidence to suggest S.B. and his wife had faked a pregnancy. See supra

pp. 9–10. “[A]n employer may defeat a First Amendment retaliation claim if supervisors 

reasonably believed, after an adequate investigation, that [the employee’s] testimony was false, 

even if it actually was true.” Swetlik v. Crawford, 738 F.3d 818, 828–29 (7th Cir. 2013) (finding

“the defendants were justified in bringing termination charges against [the plaintiff] on the basis 

of the[ir] investigation report” (internal quotation marks omitted)). Swetlik is not binding on this 

court; however, the reasoning is persuasive here. Plaintiff’s allegations were investigated by the 

DCRA, OIG, and BEGA. Lawson Report at 98. None substantiated Plaintiff’s allegations. Even 

taking all inferences in Plaintiff’s favor, this court finds Defendants “genuinely and reasonably 

believed, based on an adequate investigation” by three government agencies that Plaintiff’s 

allegations were false. Swetlik, 738 F.3d 828. 

In performing the balancing, courts must consider whether the challenged government 

action is tailored to address the harm that the government allegedly aims to protect. Baumann, 

795 F.3d at 216. The government bears the burden of justifying its adverse-employment action. 

Id. Plaintiff was suspended for 10 days following the Lawson Report, and her suspension was 

eventually reduced to eight days. Final Suspension Notice at 3–4. This court thinks the challenged 
20 

government action (Plaintiff’s eight-day suspension) was tailored to address the harm (impaired 

harmony amongst coworkers, disrupted workplace, and damage to public confidence) that the 

District aimed to protect. Final Suspension Notice at 3–4 (“It is with cautious optimism that a 

reduction in suspension time has been decided. However, it is also noteworthy that, according to 

your records, your behavioral corrections in this matter in the past are often short-lived, limiting 

the scope of the suspension reduction to ensure that a lasting behavioral correction will ensue.”). 

For the reasons stated above, the court finds that “[t]he personal context in which 

[Plaintiff’s complaint’s] arose, in addition to the tangential connection between the issues of public 

concern and the overall thrust of [her complaints] so minimizes any public concern in the subject 

of her expression as to tip the First Amendment balance in favor of her employer,” Miller, 544 

F.3d at 551, and that the suspension was a “speech restriction . . . necessary for [DCRA] to operate 

efficiently and effectively.” Garcetti, 547 U.S. at 419. 

The court grants Defendants summary judgment motion with respect to Plaintiff’s § 1983 

claims. It therefore need not reach the argument that Lester and Whitescarver enjoy qualified 

immunity. Defs.’ Mot. at 60. 

B.

The court now turns to Plaintiff’s District of Columbia Whistleblower Protection Act

(“DCWPA”) claim. The DCWPA prohibits supervisors from “threaten[ing] to take or tak[ing] a 

prohibited personnel action or otherwise retaliat[ing] against an employee because of the 

employee’s protected disclosure.” D.C. Code § 2-223.02(a) (2020). The DCWPA defines a 

“protected disclosure” to include: 

any disclosure of information, not specifically prohibited by statute, 

by an employee to a supervisor or to a public body that the employee 

reasonably believes evidences: (A) Gross mismanagement in 

connection with the administration of a public program or the 
21 

execution of a public contract; (B) Gross misuse or waste of public 

resources or funds; (C) Abuse of authority in connection with the 

administration of a public program or the execution of a public 

contract; (D) A violation of a federal, state, or local law, rule, or 

regulation, or of a term of a contract between the District 

government and a District government contractor which is not of a 

merely technical or minimal nature; or (E) A substantial and specific 

danger to the public health and safety.” 

Id. § 2-223.01(7). 

A plaintiff asserting a DCWPA claim must make a prima facie case “[1] that he made a 

protected disclosure, [2] that a supervisor retaliated or took or threatened to take a prohibited 

personnel action against him, and [3] that his protected disclosure was a contributing factor to the 

retaliation or prohibited personnel action.” Baumann, 795 F.3d at 219. If a plaintiff establishes a 

prima facie case, the burden shifts to the employer to “prove by clear and convincing evidence that 

the alleged action would have occurred for legitimate, independent reasons even if the employee 

had not engaged in activities protected by [the DCWPA].” Coleman v. District of Columbia, 794 

F.3d 49, 54 (D.C. Cir. 2015). 

To qualify as protected whistleblowing, the complaint must disclose “such serious errors 

by the agency that a conclusion the agency erred is not debatable among reasonable people.” Id.

at 53. “At the summary judgment stage, the central question is whether a reasonable juror with 

knowledge of the essential facts known to and readily ascertainable by the employee could find 

that the employee disclosed an objectively serious governmental act of gross mismanagement, 

gross misuse or waste of public funds, abuse of authority, a material violation of local or federal 

law, or a substantial and specific danger to public health and safety.” Id. at 58 (cleaned up). 

Whether the employee made a protected disclosure is often a “fact specific inquiry.” Id.

Plaintiff’s Complaint alleges violations of the DCWPA based on gross misuse of public 

funds, abuse of authority, and violation of a federal, state, or local law. Compl. ¶¶ 32–34. 
22 

Defendants argue that Plaintiff did not make a protected disclosure because “she never had a 

reasonable belief” that she was reporting serious government misconduct. Defs.’ Mot. at 63. 

Plaintiff responds that the DCWPA does “not require proof that a disclosure is factually accurate 

for it to be granted protection.” Pl.’s Opp’n at 3. The court agrees with Plaintiff that the disclosure 

does not need to be proven factually accurate to get DCWPA protection; however, the belief has 

to be reasonable, and Plaintiff’s belief falls short of any measure of reasonableness. 

Gross Misuse of Public Funds. The term “gross misuse of funds” refers to “a more than 

debatable expenditure that is significantly out of proportion to the benefit reasonably expected to 

accrue to the government.” District of Columbia v. Poindexter, 104 A.3d 848, 857 (D.C. 2014). 

Plaintiff argues that the government would suffer “a loss from S.B.’s absence, while he got two 

months of paid leave for a non-existent child.” Pl.’s Opp’n at 43. Fair enough, if true. But the 

court agrees with Defendants that “there is no legally significant evidentiary basis for a reasonable 

jury to conclude” that S.B. was obtaining parental leave through fraud and forgery. Defs.’ Mot. at 

64. Over the course of years, Plaintiff failed to proffer any actual evidence that S.B. was abusing 

his paternity leave; yet she continued to accuse him of wrongdoing despite at least three 

investigations finding none. Plaintiff testified that she never personally observed S.B.’s wife 

“wearing a pillow under her shirt” and did not know anyone who had. Lu Deposition at 15:19–

19:9. Plaintiff told DCRA that she could “sense something [was] wrong” and that she “figured 

[S.B.] may have submitted forged document[s] but I certainly have no proof myself.” Defs.’ Mot., 

Ex. 6, ECF No. 79-6. The lack of evidence is fatal to Plaintiff’s DCWPA claim based on the 

misuse of public funds. No reasonable jury could find that Plaintiff held a reasonable belief that 

she was exposing a “gross misuse of funds.” 
23 

The D.C. Court of Appeals’ decision in Poindexer supports this conclusion. In Poindexter, 

the plaintiff argued that she had made a protected disclosure on the basis of a gross misuse of 

public funds because she had “reason to believe” two coworkers “were being paid for time and 

work they were not performing, and thus ‘stealing time from the government’ by not accurately 

reporting their hours on the sign-in sheet.” Poindexer, 104 A.3d at 857. The Court of Appeals

found that this did not constitute “gross misuse of funds” because plaintiff “failed to proffer any 

evidence showing that [her coworkers] falsified their official time and attendance records 

submitted to the OCP timekeeper,” and therefore “there was no legally sufficient evidentiary basis 

for a reasonable jury to conclude that appellee’s evidence showed a ‘protected disclosure’ on this 

basis.” Id. The same is true here. 

Abuse of Authority. Under the DCWPA, a claimed abuse of authority must be “in 

connection with the administration of a public program or the execution of a public contract.” 

D.C. Code § 2-223.01(7)(C). Plaintiff argues that S.B. abused his authority by committing fraud 

and abusing “his position as a D.C. employee to wrongly benefit himself without a valid basis or 

benefit to the government.” Pl.’s Opp’n at 43. Defendants argue there is “absolutely no basis to 

conclude that S.B. abused his authority by applying for parental leave or that anyone gave 

preferential treatment to his application.” Defs.’ Mot. at 65. The court agrees with Defendants. 

Even if S.B. did submit false family-leave documents—and there is no evidence that he did—this 

still would not rise to the level of an abuse of authority under the DCWPA because S.B. did not 

abuse his authority in connection to administering a public program or executing a public contract. 

Violation of a Federal, State, or Local Law. To qualify as a protected disclosure under the 

DCWPA, the alleged violation of law must be “not of a merely technical or minimal nature.” 

D.C. Code § 2-223.01(7)(D). The inquiry is not whether the conduct was “ultimately determined 
24 

to be illegal, but whether [plaintiff] reasonably believed it was illegal.” Freeman v. District of 

Columbia, 60 A.3d 1131, 1141 (D.C. 2012). A “reasonable belief turns on whether a disinterested 

observer with knowledge of the essential facts known to and readily ascertainable by the employee 

could reasonably conclude that the actions of the government evidence illegality.” Harris v. D.C. 

Water & Sewer Auth., 172 F. Supp. 3d 253, 261 (D.D.C. 2016). Plaintiff argues that if S.B. 

fraudulently submitted a paternity-leave application, “chances are it violated laws against fraud, 

false statements in government records, and perjury.” Pl.’s Opp’n at 43. That is true as far it goes. 

But for the reasons explained above, supra pp. 21–23, Plaintiff’s belief that S.B. had committed a 

criminal offense was not reasonable. 

Accordingly, the court holds that Plaintiff has failed to sustain with sufficient evidence her 

claim under the DCWPA. 

IV.

For the foregoing reasons, Defendants’ Motion for Summary Judgment, ECF No. 79, is 

granted, and Plaintiff’s Motion for Partial Summary Judgement, ECF No. 77, is denied. A final, 

appealable order accompanies this Memorandum Opinion. 

 

Dated: September 23, 2022 Amit P. Mehta

 United States District Court Judge