United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 17, 2014 Decided July 17, 2015

No. 12-7114

VANESSA COLEMAN,

APPELLANT

v.

DISTRICT OF COLUMBIA, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:09-cv-00050)

Jatinique Randle, Student Counsel, argued the cause for 

appellant. On the briefs was Aderson Bellegarde Francois.

Carl J. Schifferle, Assistant Attorney General, Office of 

the Attorney General for the District of Columbia, argued the 

cause for appellees. With him on the brief were Irvin B. 

Nathan, Attorney General, Todd S. Kim, Solicitor General, 

and Loren L. AliKhan, Deputy Solicitor General.

Before: BROWN and MILLETT, Circuit Judges, and 

EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge MILLETT.
2

Dissenting opinion filed by Circuit Judge BROWN.

MILLETT, Circuit Judge: Following a major fire in which 

a high-rise apartment building was destroyed, the District of 

Columbia Fire and Emergency Medical Services Department

took disciplinary action against the Appellant, Fire Captain

Vanessa Coleman. That disciplinary proceeding set off a 

series of charges and complaints by Coleman and countercharges by the Department, culminating in Coleman’s 

discharge. 

Coleman subsequently filed a lawsuit that included a 

claim under the District of Columbia Whistleblower 

Protection Act (“Whistleblower Act”), D.C. Code §§ 1–

615.51 et seq. On the Department’s motion for summary 

judgment, the district court grouped Coleman’s numerous 

communications with her supervisors into broad categories,

and then granted summary judgment to the Department on the 

ground that most of those categories were not statutorily 

protected types of communications, and for the one group that 

was protected, the Department had articulated a legitimate, 

non-retaliatory reason for its actions.

Whistleblower protection, however, is not disbursed or 

denied en masse. And the Whistleblower Act imposes a 

rigorous burden on defendants to establish by clear and 

convincing evidence the legitimate reasons for an adverse 

action. When Coleman’s complaints are considered

individually rather than categorically, a reasonable jury could

conclude that one or more of them qualifies as a protected 

complaint under the Whistleblower Act. Coleman also came 

forward with sufficient evidence for a reasonable jury to find

a prima facie case of retaliation as to those complaints. The 

Department, for its part, failed to meet its demanding

summary judgment burden of establishing that any reasonable 
3

juror would have to find by clear and convincing evidence 

that it had legitimate, non-retaliatory reasons for its actions. 

We therefore reverse the grant of summary judgment as 

to those aspects of Coleman’s Whistleblower Act claim. With 

one exception, we affirm the district court’s grant of summary 

judgment as to Coleman’s other challenges.

I

Statutory Framework

The purpose of the District of Columbia’s Whistleblower 

Act is “to encourage disclosure of wrongdoing to persons who 

may be in a position to act to remedy it.” Wilburn v. District 

of Columbia, 957 A.2d 921, 925 (D.C. 2008) (emphasis 

omitted). The Whistleblower Act thus is designed to combat

serious misconduct, abuses of governmental authority, or 

waste of public resources by creating an environment in 

which government employees who witness wrongdoing feel 

safe coming forward and are protected from retaliation. See 

D.C. Code § 1-615.51; see also id. §§ 2-223.01–2-223.07 

(extending similar protections to, inter alia, employees of 

contractors for the D.C. government).

Sometimes, however, a workplace complaint is just a 

workplace complaint. 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.” Wilburn, 957 A.2d at 

925; see also Williams v. Johnson, 776 F.3d 865, 870 (D.C. 

Cir. 2015) (same). More specifically, the Act defines 

“protected disclosures” as those that the would-be 

whistleblower “reasonably believes” evidence: 

(A) Gross mismanagement;
4

(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.

D.C. Code § 1-615.52(a)(6); see also Williams, 776 F.3d at 

870 (discussing scope of Whistleblower Act protection). 

For complaints falling within those categories, the Act 

bars a supervisor from “tak[ing] or threaten[ing] to take, a 

prohibited personnel action or otherwise retaliat[ing] because 

of the employee’s protected disclosure or because of an 

employee’s refusal to comply with an illegal order.” D.C. 

Code § 1-615.53(a). 

The Act prescribes a distinct burden-shifting framework 

to govern the proof of whistleblowing claims. See Bowyer v. 

District of Columbia, No. 13-7012, 2015 WL 4079800, at *2

(D.C. Cir. July 7, 2015). To make out a prima facie claim of 

retaliation under the Whistleblower Act, the plaintiff must 

show by a preponderance of the evidence that (i) she made a 

statutorily protected disclosure, and (ii) the disclosure was a 

“contributing factor” behind (iii) an adverse personnel action 

taken by her employer. See Crawford v. District of Columbia, 

891 A.2d 216, 219, 221 (D.C. 2006). A “contributing factor” 

is “any factor which, alone or in connection with other 

factors, tends to affect in any way the outcome of the
5

[employment] decision.” D.C. Code § 1-615.52(a)(2). Once 

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 this section.” Id. § 1-615.54(b); see 

also Freeman v. District of Columbia, 60 A.3d 1131, 1141 

(D.C. 2012).

Factual Background

Appellant Vanessa Coleman is a 17-year veteran of the 

D.C. Fire Department. She began as a cadet after graduating 

from high school and rose through the ranks to become a 

captain in command of an engine company.

On March 12, 2008, a large fire broke out in a high-rise 

apartment building in the Mount Pleasant neighborhood of 

Washington, D.C. It developed into a five-alarm fire that 

destroyed the entire structure and left its nearly 200 residents

homeless. Coleman headed an engine company that 

responded to the fire. Battalion Fire Chief John Lee served as 

the Incident Commander, and directed the operations of 

firefighters on the scene, including Coleman’s company.

Upon arriving at the fire, Coleman led her company to

inspect the basement of the building, as required by the 

Department’s Standard Operating Guidelines. Before she 

could reach the basement, however, Battalion Chief Lee 

instructed her to proceed directly to the third floor of the 

building. Coleman abandoned the basement check, following 

her superior’s command. Coleman did not advise Lee that the 

basement inspection had not been completed. Nor did Lee 

confirm its completion with Coleman or anyone else.
6

The fire proved to be one of the largest in D.C.’s recent 

history. Failure to complete the basement check proved fatal 

to the Department’s efforts to control the fire, which had in 

fact begun in the basement. The fire and the Fire 

Department’s failure to contain it generated widespread

public attention and criticism.

In the following days, the Department conducted an

informal internal critique of the Mount Pleasant fire that 

included an inquiry into Coleman’s actions. In response, 

Coleman sent memoranda to her superiors explaining her 

actions, and advocating that a formal review of the Mount

Pleasant fire be undertaken to investigate all of the 

departmental failures that day.

On April 5, 2008, Battalion Chief John Lee issued

Coleman a citation for violating the Standard Operating 

Guidelines and the District of Columbia Fire and Emergency 

Medical Services Department Order Book “by (1) not 

reporting her basement findings to Command; or (2) if unable 

to perform this assignment as so ordered by Command, 

immediately notify[ing] Command of this fact.” J.A. 150. 

Coleman refused to accept a settlement penalty, and instead 

exercised her right to challenge the charge.

On April 21, 2008, Coleman wrote a memorandum to 

Fire Chief Dennis Rubin explaining that she was challenging 

the charge “because the violation referenced was not an

omission of neglect on [her] behalf. Instead, the error resulted 

from the tactical decision of the IC [Incident Commander 

John Lee].” J.A. 215. In Coleman’s view, “the execution of 

the basement check wasn’t completed by [her company] 

because the IC (deviating from standard protocol) ordered 

[her company] to a greater assignment of priority.” Id. This, 

Coleman asserted, evidenced a failure to properly manage fire 
7

operations and to contain a large, multi-alarm fire. She also 

repeated her recommendation that the Department conduct a 

thorough and formal review of command failures at the 

Mount Pleasant fire.

Four days later, on April 25, Battalion Chief John Lee 

was cited for failing to follow up with Coleman’s company 

regarding a basement report. Unlike Coleman, however, Lee

decided not to challenge the citation, and accepted an official 

reprimand.

In May 2008, while Coleman awaited her hearing, she 

wrote another memorandum to Chief Rubin, this time

complaining that, since April, her superiors had been failing 

to endorse and timely process disciplinary actions she 

initiated against her subordinates. When she received no 

response from Chief Rubin, she continued over the next two 

months to submit almost a dozen memoranda to the Chief 

complaining that, among other things, her superiors were

collectively and intentionally ignoring her requests for 

disciplinary support, misusing their authority to “cripple” her 

professional career, and orchestrating a “mutiny” against her

by subverting her efforts to discipline those in her command. 

J.A. 246, 267. Coleman also sent multiple communications to

Assistant Fire Chief Brian Lee expressing concern that her 

disciplinary notices were not being timely processed.

On May 19, 2008, Battalion Fire Chief James Kane heard 

Coleman’s appeal of her April 5th citation. He found her 

guilty of the infraction, and recommended that she be 

suspended for 24 duty hours. Assistant Chief Brian Lee 

approved the recommendation.

On July 23, 2008, Coleman appealed her suspension to 

Chief Rubin. In doing so, she filed a memorandum that not 

only defended her own actions at the Mount Pleasant fire, but 
8

also provided a detailed account of what she believed were 

major command failures and dangerous practices by the 

Department at the fire site. They included (i) failing to ensure

that each floor was checked and instead channeling resources 

to the second floor in a mistaken belief that the fire originated 

there, (ii) neglecting to request adequate resources at the 

outset, (iii) untimely activating a second alarm to increase 

fire-fighting resources, and (iv) requiring firefighters to work 

in exceptionally dangerous conditions even though experts 

knew early on that the building could not be saved. Coleman 

explained that those failures both caused the loss of the 

building and unnecessarily put firefighters at “extreme risk.” 

J.A. 297.

While Assistant Chief Brian Lee had previously 

contemplated the possibility of subjecting Coleman to a 

fitness examination, within 48 hours of receiving the July 

23rd memorandum, he pulled the trigger and ordered that 

Coleman immediately undergo an evaluation of her 

psychological fitness for duty. He grounded his order in “her

constant and sometimes alarming e-mails and reports about 

possible conspiracy in the work place; and her inability to 

adhere to directives given by myself and other Superior 

officers,” concluding that the Department needed to 

“determine if there is a medical cause for this behavior.” J.A. 

306.

On July 28, 2008, Chief Rubin affirmed the May 19th 

administrative decision suspending Coleman for her 

performance at the Mount Pleasant fire. Three days later, 

Coleman reported for the fitness-for-duty evaluation as 

ordered, but refused to sign the requisite consent form 

because it required her to attest that her participation was 

voluntary. She was concerned about waiving challenges to 

the test results and releasing her medical records. That same 
9

day, she submitted a memorandum to Chief Rubin stating that 

she believed she was being ordered to take the psychological 

examination in retaliation for “whistle blowing” and that she 

“was uncomfortable consenting to the waiver form without 

first acquiring legal guidance.” J.A. 327. The Department 

responded by charging Coleman with insubordination.

Coleman informed the Department that she would not

complete the fitness-for-duty examination unless certain 

changes were made to the waiver form so that she could 

record that she was submitting to the evaluation “under duress 

and under the threat of further retaliation or adverse personnel 

action.” J.A. 81. At that point, the Department put the 

examination and insubordination charge on hold pending the 

outcome of an equal employment investigation into her 

charges. Once that investigation concluded with no action, 

the Department reinstated the order that Coleman undergo the 

fitness evaluation. Coleman, however, continued to refuse to 

consent to the testing. On January 13, 2009, the Department

formally commenced insubordination proceedings against her. 

The Department’s Trial Board found Coleman guilty of 

two counts of insubordination. The Board recommended that 

she receive a demotion of two ranks and be ordered again to 

submit to the fitness-for-duty examination. Chief Rubin 

agreed.

Coleman again refused to give her voluntary consent to 

the examination, despite a warning that it could lead to her 

termination. The Department terminated Coleman on October 

7, 2009.

Procedural History

Coleman subsequently filed suit in the United States 

District Court for the District of Columbia alleging violations 
10

of the Whistleblower Act, along with other state and federal 

causes of action.

1

 Coleman named as defendants the 

Department, Chief Rubin in his official capacity, and 

Assistant Chief Brian Lee in his individual capacity

(collectively, “Department”). Coleman alleged that her 

memoranda and other communications were statutorily 

protected disclosures to Department management exposing 

abuse of authority, gross mismanagement, violations of 

federal and local laws, violations of Department rules, and 

substantial and specific dangers to public health and safety. 

She further alleged that she was unlawfully retaliated against

as a result of those protected disclosures through reprimands, 

suspensions, orders to submit to the fitness-for-duty 

evaluation, and eventually termination. 

The district court granted summary judgment for the 

Department and dismissed Coleman’s complaint. Grouping 

Coleman’s communications into seven broad categories (such 

as all “internal [intra-Department] communications regarding 

the Mount Pleasant fire”), the court concluded that only three 

categories of communications were even arguably protected

by the Whistleblower Act. Coleman v. District of Columbia, 

893 F. Supp. 2d 84, 93, 101 (D.D.C. 2012). Those three 

categories covered Coleman’s internal and external 

communications and legal filings alleging race and sex 

discrimination in the Department, and thus could be protected 

allegations revealing violations of federal and local law. 

Coleman’s communications regarding the Mount Pleasant 

fire, however, were categorically dismissed as pertaining only 

to an internal disciplinary matter. Id. at 101–102.

 1 The federal claims gave rise to federal question jurisdiction, as 

well as supplemental jurisdiction over Coleman’s Whistleblower 

Act and other related state-law claims. See 28 U.S.C. §§ 1331, 

1367.
11

With respect to the communications that the district court 

found were generally protected, the court held that, even 

assuming they were a substantial factor in sanctioning 

Coleman, the Department had an independent and legitimate 

reason for taking those actions. Coleman, 893 F. Supp. 2d. at 

102. In so ruling, the court relied on certain justifications for 

the Department’s actions that the court deemed to have been 

“impliedly offered” by the Department. Id. at 103. The court 

also relied on Coleman’s acknowledgement that the 

challenged actions were taken in response to communications 

that the district court had said were categorically unprotected. 

Id. at 104. Because it had ruled that ordering the fitness-forduty evaluation was not retaliatory, the district court also held 

that the Department’s sanctions for Coleman’s noncompliance with that order, including ultimately termination, 

were not retaliatory either. See id. at 105.

Finally, the court granted summary judgment on

Coleman’s First Amendment claim against Assistant Chief 

Lee, see Coleman, 893 F. Supp. 2d at 94–99, as well as her 

retaliation and hostile work environment claims under Title 

VII of the Civil Rights Act, 42 U.S.C. §§ 2000 et seq., and the 

District of Columbia’s Human Rights Act, D.C. Code §§ 2-

1401 et seq. See Coleman, 893 F. Supp. 2d at 105–109. 

Coleman does not challenge those rulings on appeal.2

 2 The district court had dismissed Coleman’s other constitutional 

and common law claims in a December 7, 2011 order granting the 

Department partial judgment on the pleadings. See Coleman v. 

District of Columbia, 828 F. Supp. 2d 87, 90–97 (D.D.C. 2011). 

Coleman has not presented any objection to that ruling on appeal.
12

II

Analysis

We review the district court’s grant of summary 

judgment de novo, drawing all reasonable inferences from the 

evidence in favor of the nonmoving party. See Payne v. 

District of Columbia, 722 F.3d 345, 351 (D.C. Cir. 2013). 

Summary judgment may only be granted when there is no 

genuine dispute as to any material fact, and the moving 

party—in this case, the Department—is entitled to judgment 

as a matter of law under the governing legal standard. Id. 

Under the Whistleblower Act, once a prima facie case 

has been established, the defendant must prove by clear and 

convincing evidence that it had a legitimate, non-retaliatory 

reason for any adverse employment actions that were taken in 

the wake of a protected disclosure. D.C. Code § 1-615.54(b); 

see also Bowyer, 2015 WL 4079800, at *2. Accordingly, in 

reviewing the grant of summary judgment to the Department, 

we must “view the evidence presented through the prism of 

th[at]” clear and convincing “substantive evidentiary burden,” 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986); 

see id. (“Whether a jury could reasonably find for either party 

* * * cannot be defined except by the criteria governing what 

evidence would enable the jury to find for either the plaintiff 

or the defendant.”). 

In reviewing a claim under the Whistleblower Act, this 

court applies the substantive law of the District of Columbia

and “[o]ur duty * * * is to achieve the same outcome we 

believe would result if the District of Columbia Court of 

Appeals considered the case.” Payne, 722 F.3d at 353. 
13

Protected Disclosure

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 one or more of Coleman’s memoranda 

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. 

Williams, 776 F.3d at 871–872.

3

 Whether the employee made 

a protected disclosure is often “a ‘fact specific inquiry.’” 

Williams, 776 F.3d at 870 (quoting Shekoyan v. Sibley Int’l, 

409 F.3d 414, 423 (D.C. Cir. 2005)). 

Applying that standard, a reasonable jury could find that 

Coleman’s July 23rd memorandum cataloging serious and 

potentially life-endangering problems with the Department’s 

response to the Mount Pleasant fire was a protected 

disclosure. That memorandum contained a detailed account 

of the multiple departmental command failures Coleman

observed at the Mount Pleasant fire, which was one of the 

most devastating fires in recent Department history and which 

had generated public scrutiny and criticism of departmental 

operations. Coleman pointed with specificity to how 

inaccurate reports about conditions inside the burning 

building impeded firefighters’ ability to pinpoint the location 

of the fire, which is critical to containing a fire. She also 

described the Department’s lack of attention to established 

firefighting procedures, such as failing to check each floor as 

firefighters ascended, and to the misdirection of resources, 

 3

 See also Wilburn, 927 A.2d at 925; Zirkle v. District of Columbia, 

830 A.2d 1250, 1259–1260 (D.C. 2003); D.C. Code § 1-

615.52(6)(A)-(E).
14

citing in particular an order diverting units to the second and 

third floors. Coleman’s memorandum went on to explain that 

there were insufficient firefighters on the scene to extinguish

what ended up being a five-alarm fire or to contain its spread. 

As a consequence, the firefighters on the scene suffered from 

“fatigue and mental exhaustion.” J.A. 297. She also alleged

that alarms calling in additional units to help fight the fire 

were unjustifiably delayed. Lastly, Coleman states that “on 

scene experts knew some 10 minutes into the fire that the 

building wouldn’t be saved” and that, in spite of this

knowledge, “interior [firefighting] crews were put at extreme 

risk.” Id.

A reasonable jury could conclude that the July 23rd

memorandum disclosed either gross mismanagement or a 

“substantial and specific danger to the public health and 

safety,” topics specifically protected by the Whistleblower 

Act. D.C. Code § 1-615.52(a)(6)(A) & (E). If true (a matter 

on which we express no opinion), the statements would reveal 

serious and potentially life- and property-endangering errors 

by the D.C. Fire Department in managing the blaze. The 

memorandum is detailed and specific; it is not a general 

undifferentiated complaint that contributes little to the 

disclosure of actual governmental misconduct. The concerns

raised, moreover, bore directly on a matter of significant 

public concern—the much-scrutinized Mount Pleasant fire.

The disclosures thus go far beyond a mere difference of 

opinion among employees or self-interested finger-pointing

by Coleman. Instead, if true, they would reveal official 

missteps that stand separate and apart from Coleman’s 

individualized personnel dispute over responsibility for 

checking the basement. 
15

In granting summary judgment to the defendants, the 

district court grouped all of Coleman’s “internal [intraDepartment] communications regarding the Mount Pleasant 

fire” together and declared that entire category to be 

unprotected because Coleman’s concern was to preserve her 

“own career” and to fend off the Department’s “erroneous 

citation of [her] for a professional error.” Coleman, 893 F. 

Supp. 2d at 101.

The question, however, is whether a reasonable jury

could find that any, not all, of Coleman’s internal complaints 

were protected. And that inquiry turns on whether an 

individual disclosure might “reasonably” be viewed as 

revealing “objectively serious” misconduct. Williams, 776 

F.3d at 871–872. The whistleblower’s subjective motivation

is beside the point. See id. Indeed, there is nothing inherently 

contradictory about disclosing serious misconduct while also 

defending one’s own professional reputation. The proper 

focus thus is on the objective content of the information 

revealed, not the motives of the revealer. Cf. Horton v. 

Department of Navy, 66 F.3d 279, 282–283 (Fed. Cir. 1995) 

(discussing Congress’s rejection of employee motive as a 

factor in determining whether a disclosure is protected under 

the federal whistleblower law); see also Freeman, 60 A.3d at 

1141 (“In construing the [Whistleblower Act], we have found 

it helpful to consider how its federal counterpart, 5 U.S.C. 

§ 2302(b)(8)(B) (2008), and similar state whistleblower laws 

have been interpreted.”). 

Finally, the Department’s objection (Br. 28) that aspects 

of the disclosure were “rumor” or “too vague and unsupported 

to be a protected disclosure” simply ignores the specific 

content and details laid out in the July 23rd memorandum. 

The argument also overlooks that Coleman was a 17-year 

veteran of the D.C. Fire Department, who had earned her way 
16

up to the level of Captain. She thus had first-hand experience 

fighting fires in the District, and was familiar with the 

Department’s command and containment protocols. Her 

“expertise in these matters supports the reasonableness of her 

belief” that the Department’s actions posed a substantial 

threat to public safety. Or at least a reasonable jury could so 

find. Chambers v. Department of the Interior, 602 F.3d 1370, 

1379 (Fed. Cir. 2010).

While it presents a closer question, a reasonable jury 

could also find that Coleman’s April 21st memorandum to 

Chief Rubin was a protected disclosure because it disclosed 

that Battalion Chief John Lee had reassigned Coleman’s 

company before the basement check had been completed. 

Coleman’s memorandum did not simply assert her 

blamelessness in the missed basement check, but instead went 

further and disclosed that Lee independently had failed to 

follow up on and confirm that the basement check had been 

completed. Given how critical that check was to the fire’s 

containment, a reasonable jury could find that Lee’s oversight 

created a significant safety risk. Indeed, four days after 

Coleman’s memorandum, the Department cited Lee for the 

very conduct that Coleman had described.

Coleman also claims on appeal that an April 1st

memorandum expressing her concern over the Department’s 

decision to conduct only an informal, rather than formal, 

investigation of the Mount Pleasant fire was protected. We 

disagree. No reasonable jury could find that the decision 

whether to proceed at least initially through an informal rather 

than a formal investigatory process is the kind of serious error 

that is “not debatable among reasonable people.” White v. 

Department of Air Force, 391 F.3d 1377, 1383 (Fed. Cir. 

2004). The April 1st memorandum also lacks the detail and 

specificity needed to link the complaints to public safety. See 
17

Chambers, 602 F.3d at 1376 (disclosure “reveal[ed] a 

substantial and specific danger to public health and safety” 

because there were “specific allegations or evidence either of 

actual past harm or of detailed circumstances giving rise to a 

likelihood of impending harm”).

Finally, we decline to consider whether Coleman’s July 

31st memorandum to Chief Rubin explaining why she refused 

to submit to the fitness-for-duty examination is a protected 

disclosure. Coleman made no effort in her opening brief to 

link this disclosure, which postdated the evaluation order, to 

further acts of retaliation. If she meant instead to wrap this 

disclosure in a broader claim that she was retaliated against 

for refusing to comply with an unlawful order, that theory was 

forfeited on appeal because it was presented only in her reply 

brief. See Novak v. Capital Mgmt. & Development Corp., 570 

F.3d 305, 316 n.5 (D.C. Cir. 2009). 

Retaliation

Identifying a protected communication was only half of 

Coleman’s summary-judgment task. That is because blowing 

the whistle does not immunize employees from any and all 

employment actions; it only protects against those adverse 

employment actions for which the employee’s disclosure or 

attempted disclosure was “essentially * * * a ‘but for’” cause. 

Johnson v. District of Columbia, 935 A.2d 1113, 1119 (D.C. 

2007). The Whistleblower Act spells out specifically how 

that causation standard is to be met. First, Coleman had to 

come forward at summary judgment with sufficient evidence 

from which a reasonable jury could conclude both that her 

communication was protected and that her whistleblowing

was a contributing factor to a “prohibited personnel action,”

D.C. Code § 1-615.54(b). See Payne, 722 F.3d at 353; see 

also Freeman, 60 A.3d at 1141. 
18

Once Coleman met that burden, the Whistleblower Act 

required the government to show that there was no disputed 

question of fact that the challenged action would have 

occurred for legitimate reasons independent of Coleman’s 

protected disclosure. More specifically, the government had 

to prove that any reasonable juror would have to find that the 

government had proven the legitimacy of its action by “clear 

and convincing evidence,” D.C. Code § 1-615.54(b). See 

Freeman, 60 A.3d at 1141; see also Bowyer, 2015 WL 

4079800, at *2.

At the outset, the Department does not dispute that the 

ordered fitness-for-duty examination, citation, suspension, 

and ultimate discharge of Coleman constitute the types of 

adverse employment actions that implicate the Whistleblower 

Act’s protections. See D.C. Code § 1-615.52(a)(5)(A) 

(defining prohibited personnel action as including 

“recommended, threatened, or actual termination, demotion, 

suspension, or reprimand; * * * referral for psychiatric or 

psychological counseling; * * * or retaliating in any other 

manner”); see also Freeman, 60 A.3d at 1141. 

In concluding that the Department had met its burden of 

justifying its employment actions, the district court committed 

two legal errors. It implied justifications the Department had 

not advanced, and it failed to enforce the Whistleblower Act’s 

stringent burden of proof on the Department. 

1. In identifying the Department’s non-retaliatory basis 

for disciplining and discharging Coleman, the district court

relied in part not on reasons given by the Department, but 

instead on those the court divined itself, and then deemed to 

have been “impliedly offered.” Coleman, 893 F. Supp. 2d at 

103. Proof in point: the district court stated that “defendants 

have not specifically alleged an independent justification for 
19

[reprimanding plaintiff] in their motion for summary 

judgment”; instead, the court gleaned “possible 

justification[s]” from the record. Id. at 104; see also id.

(stating that Coleman’s “pleading has inadvertently assisted 

her opponents in constructing a justification for actions”). 

That a trial court may not do. 

In answering a plaintiff’s prima facie case, the burden is 

on the employer-defendant to come forward with its actual

non-retaliatory justification for its employment decision. The 

text of the Whistleblower Act itself requires that “the 

defendant” rebut a showing of unlawful retaliation with proof 

that the challenged employment action “would have”—not 

could have—“occurred for legitimate, independent reasons” 

regardless of the allegedly protected activities. D.C. Code 

§ 1-615.54(b). A trial court may not do the defendant’s 

summary-judgment work for it.

Precedent in analogous contexts confirms that the text of 

the Whistleblower Act means what it says. The Supreme

Court has repeatedly held for federal employment laws—

where a defendant’s burden is generally only one of

production, rather than the Whistleblower Act’s duty of clear 

and convincing persuasion—that the defendant must “clearly 

set forth, through the introduction of admissible evidence, the 

reasons for” its adverse employment actions. Texas 

Department of Community Affairs v. Burdine, 450 U.S. 248, 

255 (1981); see also St. Mary’s Honor Center v. Hicks, 509 

U.S. 502, 509–510 (1993) (defendant must respond with 

“evidence which, taken as true, would permit the conclusion 

that there was a nondiscriminatory reason for the adverse 

action”); cf. McKennon v. Nashville Banner Publishing Co., 

513 U.S. 352 (1995) (holding that, where an employer’s 

actual motive for an employee’s termination was unlawfully 
20

discriminatory, the post hoc advancement of reasons that 

could have led to termination does not avoid liability). 

Beyond that, to hypothesize why a defendant could have 

taken an employment action is to ask the wrong question. 

The point of the Whistleblower Act’s anti-retaliation 

provision is to make clear to employers that they cannot use 

their power to punish employees for whistleblowing or to cow 

them into silence. See D.C. Code § 1-615.51. Asking 

whether a misbehaving employer could have taken the same 

employment action for a legitimate reason, rather than 

whether the employer did so, would enfeeble the Act’s most 

basic protection for employees and would open the door to 

after-the-fact justifications for employment actions that were, 

in fact, designedly retaliatory. That is not how causal analysis 

works in the analogous employment-discrimination context, 

and there is no textual or precedential reason to think the D.C. 

Council wanted a peculiarly anemic version of burdenshifting in the whistleblower context.

2. The district court also failed to analyze the 

Department’s summary-judgment evidence under the exacting 

“clear and convincing” standard of proof that the 

Whistleblower Act imposes, D.C. Code § 1-615.54(b). See 

McCormick v. District of Columbia, 752 F.3d 980, 986 (D.C. 

Cir. 2014) (summary judgment on causation prong 

appropriate where the “only evidence” on this point supported 

the “independent lawful reasons” for termination offered by 

the defendant); see also Liberty Lobby, 477 U.S. at 254 

(summary judgment must factor in “the criteria governing 

what evidence would enable the jury to find for either the 

plaintiff or the defendant”). 

More specifically, while the district court announced the 

correct standard, it failed to recognize that, under the
21

Whistleblower Act, the burden of persuasion remains on the 

defendant even once a legitimate and independent rationale 

for an action has been articulated. Compare Freeman, 60 

A.3d at 1141 (defendant’s burden under Whistleblower Act is

to “prove by clear and convincing evidence that the alleged 

action would have occurred for legitimate independent 

reasons” absent the protected conduct) (emphases added) 

(quoting D.C. Code § 1-615.54(b)), and Bowyer, 2015 WL 

4079800, at *2 (same), with St. Mary’s Honor Center, 509 

U.S. at 509 (defendant’s analogous burden Title VII is simply 

to “produc[e] evidence (whether ultimately persuasive or not) 

of nondiscriminatory reasons”) (first emphasis added).4

 

When the record is analyzed through the proper 

summary-judgment lens, a reasonable jury could conclude

that (i) Coleman established a prima facie case of retaliation 

with respect to her referral for a fitness evaluation, and (ii) the 

Department failed to establish by clear and convincing 

evidence that it would have taken the challenged actions for 

legitimate, non-retaliatory reasons even in the absence of the 

protected conduct.

To begin with, Assistant Chief Lee openly rested his 

direction that Coleman undergo a fitness evaluation on her 

 4

 In that regard, the dissenting opinion is mistaken in suggesting 

(Dissenting Op. at 3–4) that the existence of a prima facie case 

becomes largely irrelevant at the summary judgment stage once the 

defendant asserts a legitimate, non-retaliatory reason for the 

adverse action. Under the plain text of the Whistleblower Act, D.C. 

Code § 1-615.54(b), Coleman’s establishment of a prima facie case 

permanently shifted to the Department the burden of persuasion—

by clear and convincing evidence, no less—that the challenged 

decision was not retaliatory. See Bowyer, 2015 WL 4079800, at *2, 

*4.
22

filing of numerous complaints with superiors, which included 

her April 21st and July 23rd communications detailing serious 

problems at the Mount Pleasant fire. Assistant Chief Lee 

specifically said that his decision was based in part on 

Coleman’s “constant and sometimes alarming e-mails and 

reports about possible conspiracy in the work place,” which 

he deemed “disruptive to * * * the efficient management of 

the Department.” J.A. 306.

In addition, the close temporal proximity between the 

July 23rd memorandum in particular and the July 25th order 

that Coleman undergo a fitness examination supports an 

inference of causation. See Payne, 722 F.3d at 354 (close 

temporal proximity “can provide circumstantial evidence of 

causation”); Freeman, 60 A.3d at 1145 (proximity may “lend 

support to an inference of a causal relationship”).5

 

Coleman also came forward with affirmative evidence 

that countered the Department’s proffered rationale for 

ordering the examination—that her repeated memoranda 

suggested she was unbalanced. Coleman put into the record a 

declaration by a psychologist with significant experience in 

conducting fitness-for-duty examinations for the District’s 

Police and Fire Clinic. After evaluating Coleman and 

reviewing the communications at issue and the testimony and 

affidavits of the relevant officials and medical personnel in 

the Department, Dr. Mitchell Hugonnet concluded that there 

was “little to no logical, psychological or medical basis to 

order Capt. Coleman to submit to a fitness for duty * * *

 5 Other evidence indicates that Assistant Chief Brian Lee at least 

contemplated having Coleman undergo a fitness-for-duty 

examination a week before her July 23rd memorandum. But it was 

within 48 hours of that protected memorandum that Lee chose to 

order the exam.
23

psychological evaluation.” J.A. 579. Coleman also submitted 

an affidavit from a subordinate working in her Company at 

the time of the relevant events who attested to her fitness for 

duty, stating: “I never witnessed any erratic or disturbing 

behavior from Capt. Coleman. * * * [O]n the occasions that I 

have had to communicate with Capt. Coleman, I have 

observed no changes in her behavior, or witnessed conduct 

that would give DC Fire & EMS reason to question her 

physical or psychological abilities as an officer.” J.A. 557.

The Department cherry picks a few words and phrases 

out of Coleman’s memoranda and labels them “paranoid” and 

“disturbing,” reasoning that such wording provided a 

legitimate basis for mandating the examination. Department 

Br. 11–12. Language, however, must always be read in 

context. And when the memoranda are read as a whole, there 

is no basis for holding that—as a matter of law—Coleman’s 

occasional word choices so entirely devalued or discredited 

her substantive and detailed criticisms about fire management

in the April 21st and July 23rd memoranda as to warrant 

summary judgment. While a jury could credit the 

Department’s explanation, a jury could just as reasonably 

agree with Dr. Hugonnet’s judgment that the memoranda “do 

not raise any psychological or emotional issues that would 

justify a psychological evaluation,” as her “thoughts are 

cogent, well organized and follow logical themes.” J.A. 579–

580. 

A reasonable jury could likewise agree with the Doctor 

that, “[w]hile a few of the words that Capt. Coleman uses are 

emotionally charged, such as the word ‘mutiny[,’] these terms 

are not necessarily indicative of any emotional or 

psychological dysfunction,” but rather are “likely indicative 

of frustration in not getting closure on issues that Capt. 
24

Coleman felt were important to the efficiency of the 

Department’s operations.” J.A. 580.6 

To the extent, then, that the validity of the Department’s 

rationale turns on whether its explanation is credited over that 

of Coleman’s expert, that credibility judgment or “weighing 

the evidence” is for a jury to make, not a court at summary 

judgment. Jones v. Bernanke, 557 F.3d 670, 681 (D.C. Cir. 

2009); see id. (“[A]t this stage we refrain from making 

credibility determinations, weighing the evidence, or drawing 

inferences from the evidence—these, after all are jury 

functions, not those of a judge ruling on a motion for 

summary judgment.”) (internal quotation marks omitted); see 

also George v. Leavitt, 407 F.3d 405, 413–414 (D.C. Cir. 

2005) (plaintiff proffered sufficient evidence from which a 

jury could find that the employer’s stated reasons for 

terminating plaintiff were pretextual, not “undisputed”). 

Given all of those issues of disputed fact, Coleman’s claim 

that the evaluation order was retaliatory survives the 

Department’s motion for summary judgment.7

 6

 Because Dr. Hugonnet’s assessment was based on the same set of 

communications and actions that Lee cited as the impetus for his 

order in the first place, the dissenting opinion is incorrect to suggest 

that the timing of the assessment would as a matter of law preclude 

a jury from crediting it. See Dissenting Op. at 10.

7 Her claim may also survive with respect to any subsequent 

prohibited personnel actions that can be causally linked to the 

evaluation order and the protected disclosures that Coleman claims 

prompted it. The district court rested its holding that these 

subsequent actions could not be shown to be retaliatory on its 

conclusion that that order itself was not retaliatory, see Coleman, 

893 F. Supp. 2d at 105. Having overturned that summary judgment 

determination, we leave open on remand the question of whether 
25

Finally, Coleman argues on appeal that her April 5th

citation and subsequent 24-hour suspension, as well as a June 

5th citation for failing to enforce a grooming policy were 

retaliatory as well. 

The April 5th citation, however, predates all of the 

protected disclosures that Coleman highlights on appeal, and 

consequently could not have been caused by them. And the 

suspension followed the Department’s determination, after an 

evidentiary hearing, that Coleman did in fact make a mistake 

at the fire ground when she failed to provide a basement 

report. Although Coleman challenges that administrative 

determination on appeal, the individually focused factual 

question of whether Coleman actually made a mistake at the 

fire site is a “wholly different” inquiry “from whether [the 

Department cited her] because its investigation found that 

[s]he had.” McCormick, 752 F.3d at 986. The latter is a 

question of permissible employer motivation that this court

can review; the former is not. 

Beyond that, Coleman presented no evidence that 

Battalion Chief Kane, who presided over the hearing and 

issued the suspension, had any knowledge of any protected 

disclosure. Without evidence, circumstantial or otherwise, 

that “the decision-maker[] responsible for the adverse action 

had actual knowledge of the protected activity,” Coleman has 

failed to create a disputed fact question about whether the 

decision was retaliatory. McFarland v. George Washington 

University, 935 A.2d 337, 357 (D.C. 2007); accord Talavera 

v. Shah, 638 F.3d 303, 313 (D.C. Cir. 2011). Coleman thus 

 

the Department may be held liable for subsequent adverse 

personnel decisions stemming from Coleman’s refusal to submit to 

the fitness-for-duty examination.
26

failed to make out even a prima facie case with respect to that

incident.8

As for the June 5th citation, the district court deemed it 

justified based on two rationales, neither of which the 

Department itself proffered. That will not do. The 

Department, moreover, did not supply on appeal any

alternative basis for affirming that decision. We consequently 

vacate the grant of summary judgment as to the June 5th

citation. The reserved question of whether that claim was 

forfeited by Coleman through her discovery responses

remains open on remand. See Coleman, 893 F. Supp. 2d at 

104.

In closing, we note that the dissenting opinion spills a lot 

of ink assembling summary judgment arguments that the 

Department never pressed and on which the district court did 

not rely. We do not dispute that a reasonable jury could credit 

the evidence and draw the inferences on which the dissenting 

opinion relies. Maybe the dissent is even correct that, were 

we to weigh the evidence ourselves and draw inferences in 

 8

 The D.C. Court of Appeals has subsequently noted (without 

deciding) that its holding in McFarland could be limited if an 

employee established causation based on a so-called “cat’s paw” 

theory of liability. See Bryant v. District of Columbia, 102 A.3d 

264, 268 n.3 (D.C. 2014); see also Staub v. Proctor Hosp., 131 S. 

Ct. 1186, 1191–1194 (2011) (recognizing that liability could be 

found under Title VII where the ultimate decisionmaker was not 

motivated by discriminatory animus, but a lower-level supervisor 

was and proximately caused the challenged employment action). 

Coleman has made no attempt to proceed on such a theory here or 

otherwise to suggest that McFarland’s actual-knowledge 

requirement is not applicable.
27

favor of the defendants, the Department might have the better 

of the argument. 

But that is not how summary judgment is supposed to 

work. This court is duty bound at this procedural juncture “to 

view the facts in the light most favorable to the nonmoving 

party,” and to draw all reasonable inferences in support of 

Coleman—not the Department—while holding the 

Department to its exacting burden of proof and the strategic 

judgments it chose to make. Lash v. Lemke, 786 F.3d 1, 6 

(D.C. Cir. 2015) (internal quotation marks omitted); see also, 

e.g., Tolan v. Cotton, 134 S. Ct. 1861, 1863 (2014) (per 

curiam) (vacating court of appeals’ judgment for disregarding 

“the axiom that in ruling on a motion for summary judgment, 

the evidence of the nonmovant is to be believed, and all 

justifiable inferences are to be drawn in his favor”) (internal 

quotation marks and brackets omitted). 

In particular, whether or not the Department could have

argued that Coleman’s history of “conflict, dissension, and 

disobedience,” Dissenting Op. at 10, underlay the referral for 

a fitness evaluation, it is both telling—and procedurally 

dispositive—that the Department did not make that argument 

in any non-conclusory fashion on appeal, and only referenced 

it in passing before the district court as well. See Defs.’ Br 

38-40; Defs.’ Mot. for Summ. J. at 13, 25–28, 36–37, 

Coleman v. District of Columbia, No. 1:09-cv-50 (RCL) 

(Aug. 8, 2012), ECF No. 131. Thus if, as the dissent 

suggests, Dr. Hugonnet did not address Coleman’s history in 

detail, then he had company. More to the point, because the 

court’s duty at summary judgment is to afford the plaintiff all 

reasonable inferences from the record, “[i]t is not” and should 

not be “enough merely to mention a possible argument in the 

most skeletal way” in one sentence on the fortieth page of a 

brief, and then “leav[e] the court”—or the dissenting 
28

opinion—“to do counsel’s work.” Bryant v. Gates, 532 F.3d 

888, 898 (D.C. Cir. 2008) (internal quotation marks omitted).

Likewise, while the Department perhaps could have 

argued that Lee had a mistaken but reasonable and honestly 

held belief that Coleman’s emails and actions warranted the 

fitness evaluation, see Dissenting Op. at 9, it did not do so. 

Unlike the dissenting opinion, we do not believe it is 

appropriate for this court to save a summary-judgment 

movant from the consequences of “its own muddled litigation 

strategy.” Potter v. District of Columbia, 558 F.3d 542, 552 

(D.C. Cir. 2009) (Williams, J., concurring); see also George,

407 F.3d at 415–416 (declining to affirm summary judgment 

on an essentially identical “theory” that the government “did 

not rely on * * * before us”).

9

The dissent grounds its contrary conclusion in case law 

that did not involve the far more exacting clear-andconvincing standard of proof that the defendants bear here. 

See Dissenting Op. at 8; see also Aka v. Washington Hospital 

Center, 156 F.3d 1284, 1289 (D.C. Cir. 1998) (noting 

employer’s burden of production, not persuasion, under 

federal burden-shifting framework). The dissenting opinion’s 

reliance (at 8) on Reeves v. Sanderson Plumbing Products, 

Inc., 530 U.S. 133 (2000), is even more baffling, since Reeves

says only that “abundant and uncontroverted independent 

evidence” may be sufficient to obtain summary judgment 

 9

 The dissenting opinion’s worry about the policy implications of 

the decision also steps out of bounds. Whether the Whistleblower 

Act should be applied to public safety agencies is a policy call for 

the legislature. Our duty is to apply the statute as written and to 

hew to precedent.
29

when the defendant does not bear any burden of proof at all, 

id. at 148 (emphasis added).

10

Here, on what the dissenting opinion deems the key 

question—“whether Lee honestly thought an exam was 

warranted” because of Coleman’s history of dissension and 

complaints (Dissenting Op. at 11)—the evidence is 

controverted by (i) the Department’s admission that 

Coleman’s communications played a role in the referral, (ii) 

Coleman’s expert, (iii) the testimony of her colleague, and 

(iv) the thus far uncontroverted fact that the only intervening 

event between Lee’s wondering about a referral and his 

decision to order it was Coleman’s protected disclosure on 

July 23rd. Keeping in mind the Department’s exceptional 

burden under the Whistleblower Act, we hold only that when 

all reasonable inferences in this record are drawn in favor of

Coleman, the record does not compel as a matter of law the 

conclusion either (i) that Coleman’s protected complaints 

about fire management did not “tend[] to affect in any way” 

the Department’s decision to refer her for a fitness for duty 

examination, D.C. Code § 1-615.52(a)(2), or (ii) that the 

Department proved by clear and convincing evidence that the 

decision would have occurred for “legitimate, independent 

reasons” even if Coleman had not made the protected 

complaints, id. § 1-615.52(b). 

 10 This case stands in sharp contrast to Johnson where the plaintiffs 

provided “no evidence” that the defendant’s proffered rationale was 

pretextual. See 935 A.2d at 1122; see also Bowyer, 2015 WL 

4079800, at *5 (summary judgment appropriate where plaintiffs 

made no effort to show that the asserted reason for adverse action 

was pretextual).
30

III

Conclusion

A reasonable jury could conclude based on the summary 

judgment record that one or more of Coleman’s individual 

complaints qualifies as protected under the Whistleblower 

Act, that Coleman established a prima facie case of retaliation 

as to those complaints, and that the Department failed to rebut 

that prima facie case with clear and convincing evidence of a 

legitimate, non-retaliatory reason for its actions. Accordingly, 

we reverse the grant of summary judgment in favor of the 

Department as to those aspects of Coleman’s Whistleblower 

Act claim, as well as to the June 5th citation. We remand for

the determination whether and to what extent the Department 

may be held liable for subsequent adverse personnel decisions 

stemming from Coleman’s refusal to submit to the fitness-forduty examination, and for further proceedings consistent with 

this opinion. We affirm the district court’s grant of summary 

judgment on Coleman’s Whistleblower Act claim as it relates 

to her April 5th citation and May 31st suspension.

So ordered. 
BROWN, Circuit Judge, dissenting: This is an unusual 

case—one in which the court’s interpretation of the 

Whistleblower Protection Act, D.C. Code §§ 1-615 et seq. 

(“WPA”) makes a virtue of insubordination; where the 

existence of putative protected disclosures means defiance is a 

complete defense—or at least a justification for a jury trial. 

I reluctantly agree with my colleagues that Coleman’s 

self-serving defenses to the discipline initiated by the Fire 

Department included, among much finger-pointing and 

disclaiming of responsibility, some complaints that might 

qualify as protected disclosures under the WPA. I also agree 

the WPA requires a defendant to meet a stringent standard 

when retaliation is alleged, and that a district court cannot 

compensate for inadequacies in the defense’s case by drawing 

its own inferences as to the legitimacy of the employment 

actions taken. Here, the employer marshalled a mountain of 

evidence supporting the legitimate, non-retaliatory reasons for 

its employment decision; but, because defense counsel failed 

to recognize that Coleman’s blame-shifting criticisms might 

fall within the broad ambit of protected disclosures, the 

summary judgment motion was not as strong as it might have 

been. However, as the court notes, the Department did 

articulate legitimate, non-retaliatory rationales for referring 

Coleman for a fitness evaluation. See Mot. for Summ. J. at 2–

16, 26–29, 36–37, Coleman v. District of Columbia, No. 1:09-

cv-50 (RCL) (Aug. 8, 2012), ECF No. 131. And the district 

court considered the Department’s reasons. See J.A. 113 

(“[Coleman’s] filings, as well as [her] other behavior, gave 

the defendants legitimate concern about her mental state, and 

her ability to safely command her company.”) (emphasis 

added). Given Coleman’s anemic and largely irrelevant 

rebuttal, no reasonable jury could have concluded the 

Department’s purpose or motive was retaliatory. The 

Department’s reasons for ordering the fitness evaluation hold 

up even under the WPA’s clear and convincing standard. 
2

To begin at the beginning, Coleman went to work for the 

D.C. Fire and Emergency Medical Services Department 

(“FEMS” or “the Department”) right out of high school. By 

December 2007 she was a captain in charge of an engine 

company. 

In March 2008, a devastating fire erupted in a high rise 

apartment building in Washington’s Mount Pleasant 

neighborhood. Under FEMS Standard Operating Guidelines, 

the first company to arrive at a fire scene is responsible for 

checking the building’s basement, and Coleman’s company 

was the first to arrive. That fire, one of the largest in the D.C.

Fire Department’s recent history, was badly managed. The 

apartment building was totally destroyed and a nearby church 

was badly damaged. An initial investigation indicated that 

miscommunications contributed to the bad outcome. Battalion 

Fire Chief John Lee, who was in charge of the fire scene, 

radioed Captain Coleman for a “basement report.” Coleman

told him her company was on the second floor. The basement 

check, which had been Captain Coleman’s initial 

responsibility, was never completed. Coleman’s excuse was 

that BFC Lee had ordered her to the third floor of the 

building. Lee acknowledged that he gave the order and did 

not confirm that the basement check had been completed. 

Coleman followed his orders with alacrity but did not inform 

Lee or Command this crucial task had been neglected. It was 

Coleman’s obligation to inform command of her inability to 

effectively carry out an order. Subsequent analysis of the fire 

suggested the omission may have fatally undermined the 

Department’s efforts to control the fire since it apparently 

started in the basement. BFC Lee and Captain Coleman each 

placed blame at the other’s feet; both were charged with a 

violation of fire protocols. John Lee accepted the proposed 

discipline and was reprimanded. Coleman refused to accept 

any responsibility, challenged the decision, and ultimately 
3

received a suspension. Coleman’s claim to whistleblower 

protection arises out of her efforts to escape criticism for the 

Mount Pleasant debacle. 

Coleman instigated a near-obsessive campaign for 

absolution. This campaign involved a barrage of e-mails to 

her immediate supervisors and beyond, the circulation of a 

blog post entitled Vanessa Coleman’s Job Crisis Journal, a 

radio interview, a letter to the mayor and two D.C. 

councilmembers, an EEO complaint, and finally a refusal to 

submit to a fitness evaluation she had been ordered to 

undergo. Coleman’s fixation with clearing herself of 

wrongdoing culminated in the filing of this lawsuit, alleging 

the request for a fitness evaluation was an act of retaliation by 

the Department. Not surprisingly, the district court concluded 

the Department had articulated legitimate, non-retaliatory 

reasons for its actions. First, the court concluded the 

Department “reprimanded [Coleman] for making an error at 

the scene of the fire because they found she actually made 

such an error.” J.A. 104 (emphasis in original). Moreover, the 

court noted once defendants offered a legitimate, nonretaliatory reason for taking action, a plaintiff’s inability to 

show the proffered reasons are mere pretext is fatal. The court 

held that “[b]y repeating and documenting her long trail of 

filings and memoranda, [Coleman] has inadvertently provided 

documentary support for defendant’s legitimate reason for 

taking action against her.” J.A. 114.

As the district court noted, once the employer asserts a 

legitimate, non-discriminatory reason for the challenged 

action, see Brady v. Office of Sergeant at Arms, 520 F.3d 490, 

494 (D.C. Cir. 2008), the court’s task is to review all the 

evidence to determine a single question: whether the evidence 

“either separately or in combination provides sufficient 

evidence for a reasonable jury to infer retaliation.” Jones v. 
4

Bernanke, 557 F.3d 670, 679 (D.C. Cir. 2009); see also 

Crawford v. District of Columbia, 891 A.2d 216, 221 n.12

(D.C. 2006) (adopting the McDonnell Douglas Corp. v. 

Green, 411 U.S. 792 (1973), burden shifting paradigm for 

WPA cases). The only reason the prima facie case is 

important here is because defendants, confident that 

Coleman’s self-serving litany of excuses could not be deemed 

protected disclosures, relied more heavily on the plaintiff’s 

procedural deficiencies than on the Department’s abundance 

of supporting facts. 

The confusion is understandable. Ordinarily, a protected 

disclosure precedes and arguably leads to the adverse 

employment action and thus the inference of retaliation. Here, 

in contrast, Captain Coleman was already in the midst of a 

disciplinary procedure when she raised the disclosures at issue 

as a defense. She then claimed subsequent employment 

actions—the ordered fitness evaluation and the termination 

that resulted from her adamant refusal to follow orders—were 

retaliatory. But, these actions rise and fall together. If the 

initial order for a fitness for duty assessment was not 

retaliatory, the many additional opportunities to comply 

cannot be faulted. 

Assistant Chief Brian Lee’s intuition that all might not be 

well with Coleman was not, as the court contends, cherry 

picking a few words out of context. Maj. Op. at 23. Paranoia 

was the leitmotif of Coleman’s communications during this 

period. Coleman purported to “cite” a superior claiming he 

had “orchestrated a behavior of mutiny.” J.A. 272. She 

referred to a “conspiracy” against her, J.A. 272, and compared 

herself to a victim of “concealed acts of friendly fire” during 

“combat,” J.A. 249a, 253. She wrote that her superiors were 

engaged in a “pursuit” to “diabolically cripple [her] 

professional career,” and if quick action were not taken to 
5

correct “such violent, misuse of authority,” the “entire [Fire 

Department] will lie in irreversible peril,” J.A. 246, 248. In 

another communication, Coleman stated: “If a man is facing 

execution, at a certain time and certain place, it is his civic 

right to be explained the charge for which he is being 

executed for. It’s too late to remit explanation after the man is 

dead—having already been executed.” J.A. 249a. Coleman 

sometimes made these communications in a manic fashion; 

she wrote, for example, six memoranda to the Fire Chief in a 

single day. And Assistant Chief Brian Lee had other 

indications that Coleman’s mental state might be 

deteriorating. While talking to Coleman, Lee noticed that she 

raised the same issues repeatedly and sounded “frantic,” 

“disjointed,” and even a “little incoherent.” J.A. 893, 915–16. 

Given these curious communications, any supervisor worth 

their salt would question whether an employee was fit for 

duty.

The Department also offered other reasons for ordering 

the evaluation. In his affidavit, Brian Lee cited as the most 

significant sign of erratic behavior that “Coleman’s 

continually disregarded orders and the chain of command, 

[and] repeatedly placed her subordinates and superiors on 

numerous charges . . . .” J.A. 457. Indeed, he asked for 

“immediate help” in ordering a fitness for duty evaluation

precisely because Coleman had violated “the chain of 

command” and her reports had become “more alarming.” J.A. 

288. Significantly, Lee asked for assistance in ordering the 

evaluation a full week before Coleman’s July 23rd protected 

disclosure—robust proof that Lee did not order the evaluation 

for retaliatory purposes.

The different attitude displayed by Lee and Coleman 

toward firehouse culture is illuminating. Lee continually 

stressed the importance of obeying orders. He described the 
6

Department as a “paramilitary organization” and stressed the 

impropriety of willfully disobeying orders. Because being 

willing to follow orders is part of the contract to which every 

member of a fire department agrees when they accept the job, 

he found Coleman’s objection that she had not consented to 

the fitness exam incomprehensible. In an organization where 

following orders is essential to function, following orders

cannot be inconsistent with consent. Coleman, in contrast, 

refused to follow orders with which she disagreed. In 2006 

Coleman alleged she was the victim of gender discrimination. 

After an exhaustive investigation, no probable cause was 

found to support her complaint, but a review of previous

complaints revealed “that every time Captain Coleman was 

subject to personal discipline or something she did not like, 

she alleged discrimination.” J.A. 459, Aff. of Detria Liles 

Hutchinson. Soon after Coleman was promoted to captain she 

was informed that several discrimination complaints had been 

made against her. Coleman refused to meet with the head of 

FEMS’s Women’s Advisory Committee; when the manager 

of the EEO Program, Detria Hutchinson, went to the 

Firehouse to talk with her, Coleman refused to meet with her; 

and when that refusal led to an order to attend an EEO for 

Managers class Coleman refused to comply, first claiming she 

had a flat tire and then refusing to go because she claimed the 

class was “punitive.” Coleman subsequently filed charges 

against Hutchinson for recommending she attend the EEO for 

Managers class. Hutchinson concluded: “Captain Coleman 

believes . . . she is above such training.” J.A. 462.

The only time Coleman insisted that orders must be 

followed is when she believed that requirement excused her 

actions at the Mount Pleasant fire. The Trial Board’s 

consideration of the charges of the insubordination that 

resulted from refusing the fitness exam confirmed this pattern. 

After a comprehensive review of Captain Coleman’s 
7

personnel record, the Board noted a “particularly alarming” 

finding: Captain Coleman frequently had conflicts with 

superior officers and subordinates throughout her career. 

Coleman’s repeated refusals to submit to a fitness 

evaluation—a clear case of insubordination in a department as 

hierarchical as FEMS—provided another sufficient alternative 

explanation for her termination. See Johnson v. District of 

Columbia, 935 A.2d 1113, 1118 (D.C. 2007) (“Even 

assuming that the appellants had proffered [a prima facie

case], the summary judgment motion would have been 

meritorious nonetheless if [plaintiff] could not counter the 

[defendant’s] explanation that [plaintiff] would have been 

suspended anyway, for an unrelated, legitimate reason.”). 

Lee’s explanation is all the more persuasive since Coleman 

identifies no specific disclosure for which the Department 

sought to retaliate. Finally, Lee explained that if Coleman was 

found fit for duty after the evaluation, she would be returned 

“to commanding a frontline company,” suggesting the 

evaluation was ordered for safety reasons, not as retaliation

for any protected disclosure. J.A. 457–58.

In the face of overwhelming proof that Lee ordered a 

fitness evaluation to assess whether Coleman was a danger to 

herself, the public, or other firefighters, the court claims 

Coleman’s meager cache of contrary evidence rebuts the 

Department’s proffered rationale. A psychologist with 

significant experience in conducting fitness-for-duty 

examinations reviewed the communications at issue and 

concluded that there was no “logical, psychological or 

medical basis” for ordering the evaluation. J.A. 579. The 

court claims that, to the extent the “validity of the 

Department’s rationale turns on whether its explanation is 

credited over that of Coleman’s expert,” such a “credibility 
8

judgment is for a jury to make, not a court at summary 

judgement.” Maj. Op. at 24. 

That is not the law of this circuit. What is occurring is not 

simply a credibility determination; it is, just as with every 

request for summary judgment, consideration of the entire 

record in deciding whether a reasonable jury could conclude 

that the plaintiff suffered retaliation. See Jones, 557 F.3d at 

679 (a court must consider whether the evidence “either 

separately or in combination provides sufficient evidence for 

a reasonable jury to infer retaliation”). We have previously 

noted that not every plaintiff “who creates a genuine issue of 

material fact” as to pretext “will always be deemed to have 

presented enough evidence to survive summary judgment.” 

Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1290 (D.C. 

Cir. 1998) (emphasis in original). We instead made clear that 

a “court must consider all the evidence in its full context in 

deciding whether the plaintiff has met [her] burden of 

showing that a reasonable jury could conclude that [s]he had 

suffered discrimination and accordingly summary judgment is 

inappropriate.” Id. Indeed, the Supreme Court has expressly 

held that an “employer would be entitled to judgment as a 

matter of law if the record conclusively revealed some other, 

nondiscriminatory reason for the employer’s decision. The 

court dismisses Reeves v. Sanderson Plumbing Prods., Inc., 

530 U.S. 133 (2000), but if the same framework governs 

discrimination and retaliation cases, then abundant, 

uncontroverted, independent evidence of an alternative, nonretaliatory explanation for the employer’s action should be 

dispositive no matter what evidentiary standard applies. If, as 

the court here seems to hold, overcoming summary judgment 

merely required an opposing evaluation from a plaintiff’s 

expert—thus creating only a weak issue of fact on whether the 

employer’s reason was untrue—then summary judgment 

could never serve the role of weeding out cases with 
9

insufficient proof. See Vatel v. Alliance of Auto. Mfrs., 627 

F.3d 1245, 1249 (D.C. Cir. 2011) (“Vatel’s submission thus 

boils down to the proposition that discrimination plaintiffs 

should receive jury trials as a matter of course, on the theory 

that the question whether the defendant was motivated by 

racial or gender bias is always a question of fact for a jury. 

But that is not the way the law has developed.”). 

More importantly, even if a jury were to credit 

Coleman’s expert, it would be insufficient to rebut the 

reasonability of Lee’s belief that if Coleman’s general 

disobedience to the chain of command, augmented by the tone 

and volume of her communications, was left unaddressed, it 

might endanger the public safety. See Brady, 520 F.3d at 496 

(“The question is not whether the underlying . . . incident 

occurred; rather, the issue is whether the employer honestly 

and reasonably believed that the underlying . . . incident 

occurred.”) (emphasis in original); George v. Leavitt, 407 

F.3d 405, 415 (D.C. Cir. 2005) (“[A]n employer’s action may 

be justified by a reasonable belief in the validity of the reason 

given even though that reason may turn out to be false.”); 

Fischbach v. District of Columbia Dep’t of Corr., 86 F.3d 

1180, 1183 (D.C. Cir. 1996) (“Once the employer has 

articulated a non-discriminatory explanation for its action . . . 

the issue is not the correctness or desirability of the reasons 

offered but whether the employer honestly believes in the 

reasons it offers.”). In a close case, a plaintiff’s expert might 

create a dispute sufficient to preclude summary judgment. But 

here the communications on their face created great cause for 

concern, as did Coleman’s repeated refusal to follow the chain 

of command; the supervisor began planning for an evaluation 

before the protected disclosure occurred; and the supervisor 

explained that if Coleman passed the fitness-for-duty exam, 

she would return to active service. Thus, only through the 

other side of the looking glass has Coleman’s evidence
10

rebutted the Department’s “proffered rationale.” Maj. Op. at 

22. 

To say Coleman’s rebuttal is weak overstates the case. 

Although Coleman’s expert indicated he reviewed numerous 

affidavits and the testimony before the Fire Department Trial 

Board, his opinion focuses only on the import of Captain 

Coleman’s comments and neglects entirely the history of 

conflict, dissension, and disobedience detailed in those 

documents.1

 More importantly, how can an expert’s afterthe-fact review of Coleman’s written communications rebut 

Lee’s contemporaneous observations? Indeed, Dr. Hugonnet, 

who was hired by Coleman, performed his assessment a year 

after Brian Lee requested the evaluation. And what relevance 

does the testimony of Coleman’s subordinates have? See Maj. 

Op. at 30. Neither was her superior or exercised supervisory 

 1 I agree with the court that the Department’s lawyering could have 

been better. But the Department did raise Coleman’s lengthy 

history of conflict before the district court. See Mot. for Summ. J. at 

2–16, 26–29, 36–37, Coleman v. District of Columbia, No. 1:09-cv50 (RCL) (Aug. 8, 2012), ECF No. 131. And it did so again on 

appeal. See Defs. Br. at 40 (raising “legitimate grounds for ordering 

the evaluation,” which included that Ms. Coleman “was not 

heeding direction from Assistant Chief Brian Lee or other 

superiors, refused to take a required EEO training, and repeatedly 

attempted to cite her superiors, as well as her subordinates, for 

discipline. (See supra at 8–13)”); id at 8–13 (describing in detail 

Coleman’s history of conflict, dissension, and disobedience). 

Furthermore, the record presents this history from many disparate 

perspectives—all confirming Brian Lee’s explanations for ordering 

the fitness evaluation. J.A. 288, 306. The court ignores this 

evidence because counsel’s argument is too skeletal. But see 

Reeves, 530 U.S. at 148 (“[A]n employer would be entitled to 

judgment as a matter of law if the record conclusively revealed 

some other, nondiscriminatory reason for the employer’s 

decision[ ].”).
11

authority, and there is no indication either one was privy to 

Coleman’s conflict-riddled employment history or the 

numerous disturbing communications between Coleman and 

her superiors. Thus, Coleman’s evidence is of extremely 

limited relevance, if any. See DeJarnette v. Corning Inc., 133 

F.3d 293, 299 (4th Cir. 1998). Moreover, these offers of proof

attempt to answer the wrong question. That an expert, or 

Coleman’s coworkers, did not believe Coleman’s conduct 

justified an evaluation does not answer the question of 

whether Lee honestly thought an exam was warranted. It is 

well settled that it is the perception of the decision maker that

is relevant. See Vatel, 627 F.3d at 1247. Here, Lee’s 

assessment was entirely consistent with the record. Coleman 

was an unrepentant outlaw, who had made a number of 

disjointed communications, failed to follow any orders or 

directives that did not suit her, and apparently believed all her 

co-workers were out to get her. These facts are not disputed.2

As we have said many times, “[i]f the employer’s stated belief 

about the underlying facts is reasonable in light of the 

evidence . . . there ordinarily is no basis for permitting a jury 

to conclude that the employer is lying about the underlying 

facts.” Brady, 520 F.3d at 495; see also Carney v. American 

University, 151 F.3d 1090, 1094 (D.C. Cir. 1998) (holding 

that plaintiff’s “factual proffer requires too much speculation 

to create a genuine issue of fact about [defendant’s] 

motivations”). 

In addition, Lee’s assessment was consistent with that of 

Dr. Smith-Jeffries, the doctor assigned by the Fire Department 

to evaluate Coleman. After Dr. Smith-Jeffries received the 

 2 Contrary to what the court claims, Lee’s justification for ordering 

the evaluation based on Coleman’s “history of dissension” was 

never controverted by Coleman’s expert, who addressed only 

Coleman’s histrionic comments, or by her colleagues’ positive 

views of her work performance. 
12

request for an examination, the doctor phoned Brian Lee and 

considered his rationale. Based on the information provided, 

Dr. Smith-Jeffries had questions about Coleman’s

“competency” and “whether there might be some paranoia.” 

J.A. 513. The questions were troubling enough that, although 

Dr. Smith-Jeffries did not have sufficient information to 

conclude Coleman was unfit, she concluded a “full 

assessment” was warranted. J.A. 513–14. Dr. Hugonnet 

dismisses this contrary evidence and the court ignores it, but it 

is the finishing blow to any claim that a reasonable jury could 

find the testimony of Coleman’s expert or coworkers

adequately rebuts the Department’s legitimate reason for 

ordering the fitness evaluation. See Maj. Op. at 25. Coleman 

should not be able to parlay her insubordinate refusal to 

cooperate into proof the Department acted with bad motives. 

In the end, the only inference of retaliation here is the 

temporal proximity between the July 23rd protected 

disclosure and Lee’s ordering of the fitness-for-duty exam on 

July 25th. But “an inference of retaliation cannot rest solely 

on temporal proximity (even if it is established) where the 

opportunity for retaliation conflicts with the opponent’s 

explicit evidence of an innocent explanation of the event.” 

Freeman v. District of Columbia, 60 A.3d 1131, 1145 (D.C. 

2012). Lee’s innocent explanation for ordering the exam can 

be found in an email he sent a week before Coleman made the

protected disclosure. Lee stated that he needed “some 

immediate help” in ordering an evaluation because Coleman 

had broken the “chain of command” and her reports were 

“becoming more alarming.” J.A. 288. Coleman did nothing to 

rebut this explanation. No reasonable jury could believe the 

protected disclosure was a “contributing factor” in Lee 

ordering Coleman to undergo an evaluation. Crawford, 891 

A.2d at 219.
13

Had the court’s result occurred in another context it 

would be cause enough for alarm given the many ways it runs 

counter to our precedents. That it occurred in the context of a 

fire department makes it doubly distressing. The standard the 

court adopts will lead supervisors in police and fire 

departments to hesitate in ordering evaluations for employees 

working in dangerous jobs (where evaluations are needed 

most) if the employee claims to have made a protected 

disclosure. Courts ordinarily defer to supervisors in 

workplaces where employees must follow orders and respond 

to stressful situations involving public safety. E.g. Coffman v. 

Indianapolis Fire Dep’t, 578 F.3d 559, 565 (7th Cir. 2009) 

(fire department); Conroy v. New York State Dep’t of Corr. 

Servs., 333 F.3d 88, 99–100 (2d Cir. 2003) (correctional 

facility); Brownfield v. City of Yakima, 612 F.3d 1140, 1146–

47 (9th Cir. 2010) (police department); Thomas v. Corwin, 

483 F.3d 516, 527 (8th Cir. 2007) (juvenile unit of police 

department). “In these ‘public safety’ workplaces, an 

employer may be justified in requesting a psychological exam 

on slighter evidence than in other types of workplaces 

because employees are in positions where they can do 

tremendous harm if they act irrationally, and thus they pose a 

greater threat to themselves and others.” Kroll v. White Lake 

Ambulance Auth., 763 F.3d 619, 626 (6th Cir. 2014); see also 

Watson v. City of Miami Beach, 177 F.3d 932, 935 (11th Cir.

1999) (“In any case where a police department reasonably 

perceives an officer to be even mildly paranoid, hostile, or 

oppositional, a fitness for duty examination is job related and 

consistent with business necessity.”). If, on this record, the 

court finds the clear and convincing standard is still not met, 

the real consequence is that every evaluation order following 

any purportedly protected disclosure will precipitate a jury 

trial. Such a result is not only contrary to our precedent but to 

the Supreme Court’s as well. See Reeves, 530 U.S. at 148 

(“[A]n employer would be entitled to judgment as a matter of 
14

law . . . if the plaintiff created only a weak issue of fact as to 

whether the employer’s reason was untrue and there was 

abundant and uncontroverted independent evidence that no 

discrimination had occurred.”). 

The great irony of today’s decision is that the 

Whistleblower Protection Act was designed to protect those 

who might “risk their own personal job security for the 

benefit of the public.” Williams v. District of Columbia, 9 

A.3d 484, 490 (D.C. 2010). Our decision instead shields Ms. 

Coleman’s insubordinate conduct and demands a jury trial for 

a completely understandable and reasonable order requiring 

Coleman to undergo an evaluation to see whether she 

remained fit for duty—an order which itself was likely 

intended to protect the public safety. I respectfully dissent.