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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 17-CV-989

GODWIN UKWUANI, APPELLANT,

V.

DISTRICT OF COLUMBIA,

MELINDA BOLLING,

and

LYNN UNDERWOOD, APPELLEES.

Appeal from the Superior Court

of the District of Columbia

(CAB-6886-15)

(Hon. Jennifer A. DiToro, Trial Judge)

(Argued October 8, 2019 Decided November 19, 2020)

David A. Branch for appellant.

Sonya L. Lebsack, Assistant Attorney General, with whom Karl A. Racine, 

Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor 

General, and Caroline S. Van Zile, Deputy Solicitor General, were on the brief, for 

appellees.

Before GLICKMAN, BECKWITH, and MCLEESE, Associate Judges.

GLICKMAN, Associate Judge: Appellant Godwin Ukwuani, a Nigerian-born, 

African American male, was terminated from his employment at the District of 
2

Columbia Department of Regulatory Affairs (DCRA) in June 2015. Following his 

termination, Mr. Ukwuani sued appellees—the District of Columbia, his former 

DCRA Director Melinda Bolling, and his former supervisor, Lynn Underwood—in 

Superior Court for violations of the District of Columbia Human Rights Act

(HRA)1 and the District of Columbia Whistleblower Protection Act (WPA).

2

Appellant alleged that, during his tenure at DCRA, he was reprimanded by Mr. 

Underwood and ultimately fired by Ms. Bolling because of his race and national 

origin, and in retaliation for his having complained about unlawful discrimination 

at DCRA and gross mismanagement and substantial and specific dangers to public 

safety. He also alleged that appellees had subjected him to a hostile work 

environment because of his race and national origin. The trial court granted 

summary judgment to appellees on all of these claims.

On appeal, appellant contends that the court erred in disposing of his claims 

on summary judgment. He presents three overarching claims for our review. First, 

appellant claims, the trial court erred by ignoring evidence of Bolling and 

Underwood’s bias and the allegedly pretextual nature of the reason given for his 

 1

 D.C. Code §§ 2-1401.01–1404.04 (2016 Repl. & 2020 Supp.).

2

 D.C. Code § 1-615.51 et seq. (2016 Repl.).
3

termination, which was sufficient to allow his intentional discrimination and 

hostile work environment claims to proceed. Second, appellant claims, the court 

erroneously rejected his HRA retaliation claims for failure to show that he engaged 

in protected activity and without taking into account evidence that Bolling and 

Underwood were aware of complaints he had made regarding racial and national 

origin discrimination. Third, appellant contends that the court erred in similarly 

concluding that he failed to establish a prima facie case of retaliation under the 

WPA. 

Our independent review of the record persuades us that appellant’s 

arguments are not well taken, and that the trial court properly granted summary 

judgment to appellees on all his causes of action. We affirm the entry of judgment 

for appellees.

I. 

A. Appellant’s Position Within DCRA

Appellant began working at DCRA in 1999 as a general mechanical 

engineer in its Permit Operations Division (POD). The POD issues permits for all 

District building constructions and modifications. The title of “engineer” in 
4

appellant’s position at the POD may be misleading. Although appellant had a 

master’s degree in mechanical engineering, the position description did not require 

an engineering license (which appellant did not have) and the job mainly involved 

reviewing building permit applications submitted by architects and professional 

engineers to ensure their compliance with the requirements of the District’s 

construction codes. However, the position description also stated that reviewers 

are expected to “exercise[] independent judgment on the acceptability of plans,” 

indicating that the job might involve more than just confirming code compliance. 

Appellant generally received positive performance reviews during his tenure 

with the POD, and in 2014 he was promoted to the managerial position of 

Supervisory Mechanical Engineer in POD’s Mechanical/Plumbing Section. This 

was an at-will position, meaning that the employee’s termination was neither 

grievable nor appealable. 

In January 2015, appellee Bolling (who is African American) was named the 

Director of DCRA. Previously she had been the Department’s General Counsel. 

The following month, appellee Underwood (who is white) became the Deputy 

Chief Building Official of DCRA, a position with oversight responsibility for the 

POD, including appellant. 
5

B. Appellant’s Disagreements with DCRA Management Regarding 

Qualifications for Plan Reviewers

According to Bolling, upon her elevation to Director she was charged by the 

Mayor with improving the speed and efficiency of the POD by directing permit 

reviewers, like appellant, to limit their review to whether plans complied with the 

District’s building codes and refrain from otherwise evaluating or commenting on 

plan designs.3

 In March 2015, the POD recruited for a Chief Structural Engineer. 

Cognizant of the Mayor’s emphasis that POD should focus on code review, 

Bolling encouraged Gary Englebert, a white man, to apply for the position. 

Bolling had worked with Englebert before and, as she testified in her deposition,

she “knew he had done code review in other jurisdictions.” Englebert’s 

qualifications also included expertise in the interpretation of the District’s building 

code and numerous International Code Council (ICC) certifications.4

 Bolling 

ultimately selected Englebert for the position over Benjamin Johnson, an African

 3

 As Director Bolling explained in her deposition testimony, “the decision 

was that the job you’re performing [in the POD] is plan review and not 

engineering. You’re not designing anything. You’re reviewing plans that have 

already been designed by a design professional licensed in the District, and you’re 

confirming that they comply with the code that’s in effect. But we can’t have you 

redesigning work from a licensed professional in the industry.”

4

 The ICC has promulgated model construction codes, ten of which the 

District has incorporated into its building code. See 12 DCMR § 101A.
6

American man with a lengthy tenure at the POD and an engineering degree. 

Bolling made the hiring decision after a review panel found both applicants highly 

qualified and eligible to fill the position in light of their high review scores.

5

Bolling chose Englebert over Johnson, she said, because of Englebert’s code 

review background and superior code review qualifications.

Appellant disagreed with Bolling’s decision. Although he was not informed 

of Englebert and Johnson’s rankings in the application process, he believed 

Johnson was more qualified to be made Chief Structural Engineer because Johnson 

also knew the District’s building code, appellant thought highly of his work, and it 

was appellant’s view that the position should be filled by an applicant with an 

engineering degree. He orally complained to Underwood about the decision and 

said he felt that Johnson was more qualified and had been treated unfairly because 

he was African American. He added that other plan reviewers opposed Englebert’s 

selection as well. Bolling was aware of appellant’s dissatisfaction with her hiring 

decision and his belief that it was racially motivated.

 5

 In the hiring process, Mr. Johnson received an “applicant score” of 98 and 

Mr. Englebert received a score of 96; these exceeded the scores of the other 

applicants. Nothing in the record discloses what the two-point difference between 

the high scores was based on, or suggests that the difference was significant. 
7

Appellant alleges that after Englebert was hired, Underwood discontinued 

his regular meetings with the other POD managers, all of whom were African

American or Asian American, and spoke more frequently with Englebert. 

This was not the first time appellant expressed opposition to the 

Department’s changing views of the plan reviewer role and qualifications. Two 

years earlier, in 2013, the DCRA’s Chief Building Official, Rabbiah Sabbakhan, 

proposed to hire additional plan reviewers to fill a new position in the POD at the 

GS-13 level that would be called “inspector” rather than “engineer.” The

minimum qualifications for this “inspector” position included several ICC

certifications and an associate’s degree in engineering, architecture, or construction 

technology. 

A group of foreign-born POD GS-12 plan reviewers with engineering 

degrees, including appellant, met with Sabbakhan and Bolling (who was then 

DCRA’s General Counsel) to voice objections to the “inspector” position and their 

status in relation to it. At that meeting, they requested a GS level increase on the 

grounds that their pay was not comparable to that of engineers in other District

agencies and that the “inspector” position offered a higher salary but required a 

less advanced degree. The group wrote a follow-up letter asserting that the 
8

proposed “inspector” position did not require the necessary qualifications for the 

performance of plan reviewing tasks, and that the disparity in pay between their 

“engineer” positions and the new position was unfair given that they had 

bachelor’s and master’s degrees. The objectors did not mention their race or 

national origin in the meeting or in the letter; there is no evidence in the record that 

appellant or any other GS-12 engineer complained to Sabbakhan or Bolling that 

the anticipated pay differential or change in their status or professional 

responsibilities was meant to discriminate against them, or would have the effect of 

doing so, on a racial or national origin (or other invidious) basis. One of the 

objecting plan reviewers, Tesfaye Habte, was deposed and testified that he 

“d[id]n’t remember saying . . . [or] participating in . . . a complaint about 

Caucasian and non-Caucasian . . . as such, but we’ve complained about the 

differences in grade, and if it turns out that the difference in grade is a color 

difference as well, I don’t know.” 

Sabbakhan and Bolling were not persuaded by the objections. They were of 

the view that the POD plan reviewer position could not be compared with 

engineering positions in other departments because plan reviewers did not do 

engineering work; rather, they focused narrowly on whether construction and 
9

building plans met code requirements. The new “inspector” position was approved 

with the proposed educational requirements.6 

C. Appellant’s Relationship with Underwood

Underwood was appellant’s direct supervisor from the time Underwood

joined the DCRA in February 2015 until appellant was terminated in June 2015. 

By all accounts, they did not have a positive working relationship. Appellant 

contends the friction began early in Underwood’s tenure, when Underwood 

“mocked” the experience of the GS-12 plan reviewers during a meeting with 

appellant, by remarking that he could “pose five code questions to them and bet 

they could not answer correctly.” Appellant believed the remark was indicative of 

Underwood’s general contempt for the plan reviewers he managed, all of whom 

were, like appellant, foreign-born or non-white employees. In depositions, other 

plan reviewers recalled Underwood as a supervisor who often lost his temper, 

yelled at employees, and was generally demeaning or “nasty.” None of them

attributed Underwood’s unpleasant attitude to racial or national origin bias or 

prejudice, however. 

 6

 On April 27, 2015, Sabbakhan forwarded the POD plan reviewers’ 2013 

complaint letter to Underwood, with the message “FYI.” 
10

Meanwhile, Underwood criticized appellant for not performing his 

managerial duties; according to Underwood, appellant “simply continued to do 

plan review,” allowed plans to get behind, and failed to correct behavior and 

erroneous building code calls by some plan examiners. Underwood communicated 

those criticisms to appellant by, as he put it, “verbal disciplining.” Underwood

also formally reprimanded appellant in a so-called Letter of Counsel on April 13, 

2015, in connection with an incident in which appellant sought to review certain 

employment applications that Underwood had rejected because the applicants did 

not have ICC certifications or plan review experience. In the letter, Underwood 

characterized appellant’s conduct as an act of “insubordination.” The letter further 

criticized appellant’s performance as “less than managerial,” citing his vocal 

opposition to Englebert’s hiring and his siding with plan reviewers’ dissatisfaction 

and complaints on various matters. Underwood recommended that appellant 

“extricate [him]self from fellow workers.” Appellant refused to sign the Letter of 

Counsel.

D. Appellant’s Disagreements with DCRA Management Regarding Building 

Permit Approvals and His Termination

Appellant also disagreed with his superiors over their policy of limiting 

building permit review to code compliance and their related encouragement of 
11

expeditious approval of building plans subject to the applicant’s subsequent 

satisfaction of conditions that would need to be met instead of requiring rounds of 

corrections to be made to the plans before the POD would sign off on them. 

Appellant expressed his dissenting views on these matters in connection with at 

least three building permit applications in 2015, and appellant’s recalcitrance in a 

fourth such instance was the impetus for Bolling’s decision to terminate him.

On January 26, 2015, Sabbakhan asked appellant to “note any conditions of 

substance” and issue the permit for a project at George Washington University that

afternoon. This urgency was in response to the applicant’s request, made to 

Bolling, that the approval be expedited. Appellant thought the permit required 

further discussion with the applicant and that it should have been revised, but he

issued the permit as Sabbakhan directed him to do, with the list of items he thought 

the applicant would need to address. Appellant then sent an email to Matt Orlins, a 

DCRA attorney, in which he said he was “somehow uncomfortable with the 

instruction . . . to approve [the] application today.” The email did not explain why 

appellant was “uncomfortable” or the substance of the revisions he deemed 

necessary; appellant did not claim it was dangerous to issue the permit. Orlins 

responded that he was “not involved” in the review and that appellant should work 

with his supervisor. There is no evidence in the record that either Sabbakhan or 
12

Bolling was informed of appellant’s email or that appellant pursued the matter 

further.

On February 20, 2015, Sabbakhan asked appellant for an update on the 

status of a pending permit application for a project called “Union Kitchen.” It 

appears the Director had asked Sabbakhan for a “specific reason” why the permit 

had been delayed, and Sabbakhan had told her it would be resolved that day. 

Appellant responded that he wanted to check the direction of the building’s 

exhaust system in the project plans, and if that information was not indicated, he 

would ask the applicant to correct the application. Sabbakhan rejected that 

approach and told appellant the issue was “not that complicated” and the permit 

should be approved forthwith, with any remaining issues listed as conditions to be 

enforced by way of a later inspection. Appellant wrote back with a general 

objection to the conditional approval practice, in which he expressed his views that 

“if the conditions were not met during construction, it would be too late and costly 

by the time our inspection gets to notice,” and that the practice made code 

enforcement more difficult.

Appellant again opposed the approval of a permit in May 2015. Englebert, 

who had assumed the position of Chief Structural Engineer by this time, had asked 
13

appellant to review a small residential construction permit for applicants described 

(by appellant) as “a white couple.” Appellant told Englebert that the application 

was not compliant because it specified an unrealistically low construction cost of 

only $100. In response, the applicants (who apparently were on the scene and 

waiting for the permit to be issued) crossed out the $100 and wrote in $1,000, but 

appellant was not satisfied and refused to approve the permit because the new 

figure was, in his view, “just guesswork.” In addition, appellant believed the

project design was not compliant with zoning regulations. Appellant’s actions 

were reported to Underwood, who allegedly yelled at him for his refusal to 

approve the permit.

The final incident unfolded in June, when appellant reviewed plans to 

renovate a basement for use as a hair salon or barber shop. On June 10, appellant 

had a lengthy and apparently contentious meeting with the architect for the plan, 

Eric Peterson. During that meeting, appellant insisted that the construction was a 

change to the building’s use and required a separate HVAC system that would flow 

to the basement. Peterson disagreed with the need for that change. Appellant told 

him he could take the matter up with Underwood. Peterson did so, and 

Underwood agreed with him rather than with appellant. Later that afternoon, 

Peterson again attempted to secure appellant’s approval of the plan with 
14

Underwood’s support. The three men discussed the issue in person, and appellant 

continued to insist that a separate HVAC system was required. In response, 

Underwood yelled at appellant and stated that nothing in the building code 

required the design change. This argument took place in an open space within the 

POD, and several other employees heard it. Appellant eventually approved the 

plan after his “further assessment determined that the design (arrangement) would 

be adequate.”

The next morning, on June 11, 2015, Underwood e-mailed a request to the 

human resources division to take disciplinary action against appellant. He 

proposed a suspension and potentially termination. That same day, appellant

emailed his version of the argument to Sabbakhan and Bolling, insisting that he 

had been right to question Peterson’s plans and complaining that Underwood had 

verbally abused him in front of colleagues. 

On June 12th, Underwood received a heated letter from Peterson

complaining about appellant’s handling of his application. Peterson wrote that he 

was “seriously inconvenienced” by the incident on June 10th; he felt he had lost a 

day of work to appellant’s need to “prove that he was right” and have his “ego” 
15

validated by a permit applicant. Underwood discussed the incident with Bolling, 

and he provided her with a copy of Peterson’s letter. 

Bolling terminated appellant on June 24, 2015. In her deposition, she 

testified that she did so because the letter “had the ring of truth,” and it

demonstrated appellant’s “poor customer service” when his job was to “mak[e] the 

process better.” Though Bolling said Peterson’s letter was the catalyst for 

appellant’s termination, she also stated that her decision was informed by reports 

from Underwood and Sabbakhan that appellant had been slow to adapt to his role 

as a manager of plan reviewers and resistant to the policy of focusing on code

compliance without “redesign[ing] plans submitted by applicants.” She

maintained, however, that she had not considered termination an appropriate action 

against appellant until after she had read Peterson’s letter.

7

II.

We review the trial court’s grant of appellees’ motion for summary 

judgment de novo, undertaking an “independent review of the record” and 

 7

 Bolling testified that this was not the only instance in which she 

terminated a manager at the DCRA on account of a “customer” complaint. On a 

later occasion, she did it again; in that instance, the manager was white. 
16

evaluating it in the light most favorable to appellant.

8 If we conclude there is any 

record evidence, after discovery, on which a jury could properly reach a verdict for 

appellant, we must reverse the grant of summary judgment.9 But while appellant is 

entitled to “the benefit of every reasonable inference from the evidence,” he is not 

entitled to “inferences based on guess or speculation.”10 Allegations that are 

unsupported or conclusory are “insufficient to establish a genuine issue of material 

fact to defeat the entry of summary judgment.”11

A. HRA – Discriminatory Termination Claim

We start by addressing appellant’s claim that his termination was the result 

of, or motivated by, discrimination on the basis of his race or national origin. The 

HRA prohibits employers from taking an adverse action against their employees

“wholly or partially for a discriminatory reason based upon . . . race [or] . . . 

 8

 Hollins v. Fed. Nat’l Mortg. Ass’n, 760 A.2d 563, 570 (D.C. 2000) 

(citation and quotation omitted).

9

 Cain v. Reinoso, 43 A.3d 302, 307 (D.C. 2012).

10 Vogel v. District of Columbia Office of Planning, 944 A.2d 456, 464 

(D.C. 2008) (citations and quotations omitted).

11 Beard v. Goodyear Tire & Rubber Co., 587 A.2d 195, 198 (D.C. 1991).
17

national origin.”12 At the summary judgment stage, we typically evaluate an

employee’s claim of such intentional discrimination using the three-part burdenshifting framework set forth in McDonnell Douglas Corp. v. Green.

13 Under that 

framework, the employee has the initial burden to state a prima facie claim, which 

raises a rebuttable inference of intentional discrimination that the employer may

counter by articulating a legitimate, non-discriminatory rationale for the adverse 

action.14 If the employer advances such a rationale, the inference of discrimination 

“drops from the case,” leaving the employee with the task of showing that the nondiscriminatory reason provided by the employer is false and that the employer’s 

action actually was motivated, in whole or in part, by a discriminatory reason.15

Thus, where an employer has produced evidence of a non-discriminatory reason

 12 D.C. Code § 2-1402.11(a)(1)(A) (2016 Repl. & 2020 Supp.).

13 411 U.S. 792 (1973); see Hollins, 760 A.2d at 571.

14 Furline v. Morrison, 953 A.2d 344, 352-53 & n.24 (D.C. 2008) (“Broadly 

speaking, to state a prima facie claim of disparate treatment discrimination, the 

plaintiff must establish that (1) she is a member of a protected class; (2) she 

suffered an adverse employment action; and (3) the unfavorable action gives rise to 

an inference of discrimination.” (internal quotation marks omitted)).

15 Id. at 353 (quoting Hollins, 760 A.2d at 571).
18

for its actions, “we need not pause to analyze whether [appellant] made out a prima 

facie case of [discrimination] in opposing summary judgment.”16

Appellees produced evidence that appellant was terminated for a legitimate, 

non-discriminatory reason—namely, his conduct in the incident that generated the 

Peterson letter. Therefore, the question on appeal now is whether a jury could 

infer that discrimination motivated appellant’s termination, based on “the

combination of (1) [his] prima facie case; (2) any evidence [he] presents to attack

[appellees’] proffered explanation for [their] actions; and (3) any further evidence 

of discrimination[.]”17

The trial court found that appellant presented evidence on which a jury could 

find that the Peterson letter was not the sole reason for terminating him, in that 

Bolling also cited her conversations with Underwood and Sabbakhan regarding 

appellant’s managerial difficulties and resistance to expediting code review. 

Nonetheless, the court awarded summary judgment to appellees. Appellant claims 

this ruling was erroneous in two respects. First, he argues that the trial court’s 

findings regarding an alternative explanation for his termination demonstrate that

 16 Id. at 353.

17 Id. at 354. 
19

appellees’ stated rationale was pretextual and that this showing of “pretext” was 

enough to permit a jury to infer that the real reason for his termination was 

discriminatory. Second, he contends that the court ignored circumstantial evidence 

that Underwood and Bolling harbored a racial bias against him. Neither of these 

contentions persuades us that a jury could properly find that Bolling terminated 

appellant for a discriminatory reason based, in whole or in part, on his race or 

national origin.

First, appellant misapprehends the significance of the court’s assessment that 

a jury could find that Bolling had additional reasons for terminating him besides 

the Peterson letter. A showing by a plaintiff of a prima facie case and a triable 

issue as to the truth of the employer’s proffered justification is not always enough 

to overcome a motion for summary judgment. The Supreme Court has explained 

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, or 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 

evidence that no discrimination had occurred.”18 This is such a case. What the 

 18 Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148 (2000) 

(emphasis added). 
20

trial court perceived (and we conclude the record confirms) is simply that a jury 

could find additional nondiscriminatory reasons supporting appellant’s 

termination; there is a fatal lack of evidence from which a jury fairly could infer 

that those were not, individually or in combination, the true reasons and that 

appellant’s termination really was motivated or informed by discriminatory 

animus.

Preliminarily, we think it most doubtful that a jury reasonably could 

disbelieve Bolling’s testimony that she terminated appellant on account of the 

Peterson incident merely because she acknowledged the other management 

concerns with appellant reported by Underwood and Sabbakhan. Bolling was 

definite and unwavering in her testimony that she was motivated by what she 

called Peterson’s “extremely detailed” account of his frustrating and unpleasant 

experience with appellant, and that she “counted all the problems that [Peterson] 

had encountered as a customer dealing with someone that was supposed to [be]

making the process better.” The record also indicates that Bolling did not consider 

firing appellant before she received the Peterson letter, and that she had also 

terminated a white employee for similar customer service complaints. But even if 

we assume that Bolling was motivated at least in part by Underwood’s and 

Sabbakhan’s concerns with appellant’s performance, those concerns were 
21

themselves legitimate, non-discriminatory rationales for his termination that do not 

support a finding of discrimination. While appellant disputes the merits of their 

criticisms of him and asserts that his job continued to necessitate design review, his 

unsupported opinion on these matters is insufficient to raise a disputed issue of fact 

as to whether appellees’ justifications for his termination were false.19 On this 

record, there is no evidence that could lead a reasonable jury to conclude that 

appellees are “making up or lying about the underlying facts that formed the 

predicate for the employment decision.”20

Furthermore, appellant also has not proffered other evidence from which a 

jury fairly could infer that the real motivations behind his termination included 

 19 Compare Walker v. Johnson, 798 F.3d 1085, 1094 (D.C. Cir. 2015) 

(employee’s own assessment of her performance insufficient to raise a disputed 

issue of fact as to whether employer’s justification for termination was false) and 

Cain, 43 A.3d at 315 (employee unable to show a triable issue of fact as to whether 

the employer’s judgments of her performance were pretextual where the employee 

did not meaningfully dispute the facts underlying the employer’s assessment) with

Estenos v. PAHO/WHO Fed. Credit Union, 952 A.2d 878, 893-94 (D.C. 2008) 

(plaintiff raised a factual dispute as to employer’s stated rationale that he 

terminated the plaintiff due to his lack of English language proficiency through 

evidence showing (1) it was unclear that English proficiency was actually a job 

requirement and (2) his English was not deficient). Of course, if appellant had 

provided evidence to eliminate either of appellees’ asserted justifications for his 

termination, “discrimination may well be the most likely alternative explanation;” 

but that is not the case here. Reeves, 530 U.S. at 147.

20 Brady v. Office of Sergeant at Arms, 520 F.3d 490, 495 (D.C. Cir. 2008).
22

racial or national origin discrimination. Nothing in the record suggests that Bolling 

displayed or had a discriminatory animus toward appellant or any other non-white 

or foreign-born employee.

21 Appellant argues that even if Bolling herself was not 

biased, her decision to terminate him was infected by the bias of a subordinate, 

Underwood, on whose reports and recommendations she allegedly relied. 

Appellant points to three facts for which there is record support that he contends 

create a triable issue on Underwood’s motivations. In our view, however, even

assuming arguendo that appellant could show Underwood impacted the decision

by Bolling to terminate him (as he must in order to prove he was fired because of a 

subordinate’s bias),22 the record demonstrates only a contentious and 

unprofessional relationship between appellant and Underwood. It does not support 

a finding that discriminatory animus underlaid the tension between them.

 21 Appellant’s contrary argument, made for the first time in his reply brief, 

that the trial court ignored evidence that Bolling displayed a willingness to

discriminate when she encouraged Mr. Englebert, a white man, to apply for and 

ultimately selected him as DCRA’s Chief Structural Engineer, does not persuade 

us of a triable issue of fact. While a decision maker’s prior discriminatory acts can 

be used as “background evidence in support of a [discrimination] claim,” Nat’l 

R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002), there is no evidence 

that Englebert’s selection had to do with his race rather than his significant code 

review experience. 

22 See Furline, 953 A.2d at 355-56. 
23

First, appellant argues that Underwood’s disrespectful statements about the 

GS-12 plan reviewers, such as his disparaging remark that they could not answer 

questions about the building code correctly, is circumstantial evidence of 

discrimination. We are not persuaded. The evidence may support a picture of 

Underwood as an ill-tempered and offensive manager who was dissatisfied and at 

odds with the employees he supervised. That is not enough to support a plausible 

inference that Underwood was motivated by discriminatory animus. Offensive and 

insulting remarks need not explicitly invoke a racial (or other invidious) 

classification to constitute evidence of discrimination—“[t]he speaker’s meaning 

may depend on various factors including context, inflection, tone of voice, local 

custom, and historical usage”23—but the record in this case evinces no such 

contextual or historical link between Underwood’s criticisms of his staff and his 

staff’s race or national origin. Underwood’s comments may have been rude or 

worse, but they related to job performance and there is no evidence showing that 

Underwood meant them as a racially or ethnically charged insult or that the 

comments were motivated by prejudice.

 23 Ash v. Tyson Foods, Inc., 546 U.S. 454, 456 (2006).
24

Second, appellant cites Underwood’s criticism of him for expressing and 

supporting the complaints and concerns of the engineers whom he supervised as 

evidence of bias. This is not, however, a case in which a jury reasonably could 

draw the inference that Underwood harbored discriminatory attitudes and animus

against appellant for his advocacy on behalf of a protected class.

24 The nub of the 

dispute was the agency’s shift away from design review to focus on expeditious 

code compliance, for reasons and with consequences unrelated to the employees’ 

membership in a protected class, and appellant’s perceived failure, in his role as a 

manager, to support the agency’s (and not his subordinates’) objectives. There is 

no evidence that Underwood would have responded differently to appellant’s 

support of his employees had those employees been white, and notably, no 

witness-employee in this case perceived Underwood’s management as racially or 

otherwise biased.

Third, appellant cites evidence that, after Englebert was hired, Underwood 

stopped having regular meetings with non-white POD managers and instead 

primarily communicated with them through Englebert. We see little significance 

 24 See, e.g., Ramsey v. Am. Air Filter Co., 772 F.2d 1303, 1310 (7th Cir. 

1985) (notation on black plaintiff’s job application that he was arrested for 

marching in a civil rights demonstration was probative evidence of employer’s 

discriminatory intent).
25

in this isolated fact. Underwood’s utilization of Englebert as an intermediary may 

have been entirely benign and understandable, since Englebert was vested with 

supervisory authority over at least some other POD employees (apparently

including appellant). But even if Underwood’s practice was some (slight) 

evidence of cronyism or favoritism, it does not show that Underwood had an 

unlawful motivation for ending the meetings or seeking to undermine appellant 

because of his race or national origin.25

While we generally disfavor the resolution of intentional discrimination 

claims on summary judgment “since they almost always involve issues concerning 

the employer’s (or supervisor’s) motive or intent”26 (generally a question “illsuited for determination as a matter of law” and better left for the fact finder27),

this is a case in which summary judgment is appropriate, because appellant has 

failed to present even circumstantial evidence of discrimination.

 25 Howard Univ. v. Green, 652 A.2d 41, 45-46 (D.C. 1994) (“[E]mployment 

practices such as cronyism and favoritism are not actionable under antidiscrimination statutes such as the HRA.”).

26 Hollins, 760 A.2d at 570-71.

27 In re Estate of Corriea, 719 A.2d 1234, 1243 (D.C. 1998).
26

B. HRA – Hostile Work Environment

To prevail on a hostile work environment claim under the HRA, a plaintiff

must establish “(1) that he is a member of a protected class, (2) that he has been 

subject to unwelcome harassment, (3) that the harassment was based on 

membership in a protected class, and (4) that the harassment is severe and 

pervasive enough to affect a term, condition, or privilege of employment.”28 The 

trial court correctly concluded that appellant failed to submit probative evidence of 

at least the third prong—as discussed above, the record on summary judgment does 

not demonstrate that Underwood’s quarrelsome relationship with appellant was 

based on or related to appellant’s protected class status. 

C. HRA – Retaliation

The HRA prohibits an employer from retaliating against an employee “for 

opposing an employment practice that is prohibited by the Act.”29 To make out a 

 28 Nicola v. Washington Times Corp., 947 A.2d 1164, 1173 (D.C. 2008).

29 Vogel, 944 A.2d at 463 & n.12 (citing D.C. Code §§ 2-1402.11(a), 2-

1402.61(a) (2001) and noting that this court has “construed [those] statutory 

provisions to guarantee employees the same protection from retaliation as is 

provided by the so called ‘opposition clause’ in Title VII of the Civil Rights Act of 

1964, 42 U.S.C. § 2000e-3(a) (2007)”).
27

prima facie case of retaliation, appellant must establish (1) that he engaged in a 

protected activity; (2) that appellees took an adverse action against him; and (3) 

that a causal relationship existed between that adverse action and the protected 

activity.30

“Whether actions by an employee constitute protected activity is a question 

of law.”31 For an activity to be “protected” under the Act, (1) it must be one in 

which an employee expresses a “reasonable good faith belief”32 that their employer 

violated the HRA; and (2) the employer must be aware of the activity; that is, the 

employee must “alert the employer that [they are] lodging a complaint about 

allegedly discriminatory conduct.”33

 30 See Green, 652 A.2d at 45.

31 Carter-Obayuwana v. Howard Univ., 764 A.2d 779, 790 (D.C. 2001).

32 Green, 652 A.2d at 46; see also Propp v. Counterpart Int’l, 39 A.3d 856, 

863 (D.C. 2012) (“An employee is protected from retaliation even if the 

employer’s conduct alleged to be discriminatory is lawful, so long as the employee 

reasonably believed the employer’s action was discriminatory.”) 

33 Green, 652 A.2d at 46; see also Vogel, 944 A.2d at 464 (“It is not enough 

for an employee to object to favoritism, cronyism, violation of personnel policies, 

or mistreatment in general, without connecting it to membership in a protected 

class, for such practices, however repugnant they may be, are outside the purview 

of the HRA.”).
28

However, because appellees produced evidence that appellant was 

terminated for a legitimate, non-discriminatory reason, we need not fixate on 

whether appellant made out a prima facie case of retaliation.

34 Instead, just as we 

did when analyzing appellant’s discrimination claim, “we may proceed to answer 

the ultimate question”: whether a jury could find that retaliation motivated 

appellant’s termination, based on a combination of appellant’s prima facie case, 

evidence rebutting appellees’ proffered reasons for their actions, and any further 

evidence of retaliation.35

On appeal, appellant maintains that the trial court overlooked three instances 

in which he complained about racial discrimination at DCRA and thus engaged in 

a protected activity: (1) his 2013 complaint regarding the creation of the GS-13 

“inspector” position; (2) his efforts to present to management the concerns of the

“foreign-born engineers” in the POD; and (3) his complaint that the hiring of Gary 

Englebert over Benjamin Johnson was racially motivated.36

 34 Furline, 953 A.2d at 353.

35 See supra notes 16 & 17 and accompanying text.

36 At oral argument in this appeal, appellant identified his June 11, 2015 

email communication to Bolling and Sabbakhan regarding Underwood’s treatment 

of him during the Peterson incident as a fourth protected activity for purposes of 

his retaliation claim. Out of fairness to the appellee, we generally do not consider 

(continued...)
29

First, appellant contends that the evidence at summary judgment showed that 

he “implicitly complained of race and national origin discrimination” at DCRA 

when he and other foreign-born GS-12 plan reviewers objected in 2013 to the 

proposed GS-13 “inspector” position. The record, however, demonstrates that the 

GS-12 reviewers, including appellant, did not even implicitly lodge a complaint 

that the new position was unlawfully discriminatory. It is true that several GS-12 

reviewers said in their depositions that there was a racial difference between them 

and the GS-13 “inspectors.” But no reviewer testified that this difference was the 

subject of a complaint. As one reviewer testified, he “d[id]n’t remember saying 

. . . [or] participating in . . . a complaint about Caucasian and non-Caucasian . . . as 

such, but we’ve complained about the differences in grade.” And appellant, in his 

own deposition, described the qualifications of the GS-13 position as unfair to him 

and the other GS-12 reviewers because they required an ICC certification and did 

not privilege their advanced degrees. The letter the reviewers sent is consistent 

with this view. 

 

(continued...)

a claim raised by an appellant for the first time at oral argument. See Jung v. Jung, 

844 A.2d 1099, 1112 n.9 (D.C. 2004). At any rate, the email raises no complaint 

of practices prohibited by the HRA, nor does it connect Underwood’s treatment of 

appellant to his race or national origin. It could not have alerted appellees to any 

unlawfully discriminatory conduct, and hence did not constitute protected activity 

under the HRA. See Green, 652 A.2d at 46.
30

These complaints certainly raised an objection to the disparity in pay created 

between their position and the GS-13 position that required no advanced degree, 

but “there is no sign” that appellant or the other GS-12 reviewers connected “the 

inequality to any difference” between their race or national origin and those who 

they believed would be considered for the GS-13 position.37 Even if appellant 

believed that the new position discriminated against the GS-12 reviewers because 

of race or national origin, his actual complaint to his employer did not reveal any 

such belief; thus, the 2013 complaint was not a protected activity under the HRA

and it cannot support appellant’s retaliation claim.

Second, appellant’s argument that Underwood advocated for his termination 

so that appellant could no longer represent the interests of other foreign-born plan 

reviewers fails for the same reason—his “advocacy” was on behalf of employees 

who happened to be members of a protected class, but he did not link his advocacy

to their national origin. Objections to agency “policies, or mistreatment in general, 

 37 Vogel, 944 A.2d at 465 (employee could not show a protected activity 

where she did not link her lower pay in comparison to newly hired employees to a 

difference in their ages); cf. McFarland v. George Washington Univ., 935 A.2d 

337, 360 (D.C. 2007) (doubting that an employee’s letter voicing “general 

dissatisfaction with the fact that he was passed over for [a] promotion” was a 

protected activity, though affirming award of summary judgment to employer on 

other grounds).
31

without connecting it to membership in a protected class . . . are outside the 

purview of the HRA.”38 

The missing connection is not supplied by an interrogatory answer cited by 

appellant, in which appellees concede “[u]pon information and belief” that

appellant verbally complained “that African-American employees including [Mr.] 

Johnson were being treated unfairly” and that Director Bolling was “aware that he 

had complained of discrimination within DCRA.” Although interrogatory answers

can help establish a genuine issue of material fact,39 not every interrogatory answer 

is created equally. Several circuits do not even consider interrogatory answers 

based “upon information and belief” when ruling on summary judgment motions,

because they do not meet the requirement under Fed. R. Civ. P. 56(c)(4) that 

affidavits submitted in opposition to summary judgment must “be based on 

 38 Vogel, 944 A.2d at 464; cf. Thompson v. Int’l Ass’n of Machinists & 

Aerospace Workers, 614 F. Supp. 1002, 1008, 1012 (D.D.C. 1985) (evidence at 

trial sufficient to prove that employee engaged in a protected activity for purposes 

of HRA retaliation claim where she advocated for an “increase in appointments of 

blacks and women to high-level positions”). 

39 Super. Ct. Civ. R. 56(c)(1)(A) (“A party asserting that a fact cannot be or 

is genuinely disputed must support the assertion by: . . . citing to particular parts of 

materials in the record, including . . . interrogatory answers, or other 

materials[.]”); Smith v. WMATA, 631 A.2d 387, 391 (D.C. 1993).
32

personal knowledge.”40 We can look to these circuits for guidance in interpreting

our local rule, Super. Ct. Civ. R. 56(c)(4), given that it is identical to its federal 

counterpart.

41 This not to say that we will not consider appellees’ interrogatory 

answer. After all, it might be admissible against the defendants at trial as the 

admission of a party-opponent.

42 But admissible evidence is not necessarily 

sufficient evidence; “[t]he mere existence of a scintilla of evidence in support of 

the plaintiff’s position will be insufficient to defeat a motion for summary 

judgment.”43 

 40 See Estate of Gustafson ex rel. Reginella v. Target Corp., 819 F.3d 673, 

677 n.4 (2d Cir. 2016); Pace v. Capobianco, 283 F.3d 1275, 1278-79 (11th Cir. 

2002) (citing cases in other circuits); see also Jameson v. Jameson, 176 F.2d 58, 60 

(D.C. Cir. 1949) (“Belief, no matter how sincere, is not equivalent to 

knowledge.”).

41 McAllister v. District of Columbia, 653 A.2d 849, 853 n.9 (D.C. 1995); 

see also Cormier v. District of Columbia Water and Sewer Auth., 959 A.2d 658, 

664 (D.C. 2008) (“[W]e think that Super. Ct. Civ. R. 56 should be construed 

consistently with its federal counterpart.”).

42 Importantly, however, that does not mean the admission would be 

conclusive of the issue or irrebuttable. See, e.g., Chaabi v, United States, 544 A.2d 

1247, 1249 (D.C. 1988) (explaining that the party-opponent is entitled to “ample 

opportunity” at trial to deny or explain the admission (quoting MCCORMICK ON

EVIDENCE § 37, at 81 (3d ed. 1984)).

43 Smith v. Swick & Shapiro, P.C., 75 A.3d 898, 902 (D.C. 2013) (quoting 

Aziken v. District of Columbia, 70 A.3d 213, 218 (D.C. 2013)).
33

The phrase “upon information and belief” raises sufficiency concerns, 

because it is nothing more than a bare profession of belief despite a lack of

knowledge as to the truth of the belief. It forces us to ask what “information” the

“belief” is based upon. The answer does not cite any specific documentation or 

other support, but appellant references two instances that purportedly corroborate 

it: appellant’s complaint regarding the hiring of Mr. Englebert over Mr. Johnson,

and appellant’s “voicing [of] staff mistreatment.” While the former is a claim of

racial discrimination, the latter is not; the record only shows that appellant 

“expressed outrage with how [he] perceive[d] staff have been mistreated,” not that 

they were being mistreated because of their race or national origin. Consequently, 

we conclude that even if the interrogatory answer is admissible, it is insufficient to 

establish that appellant complained about racial discrimination against anyone 

other than Mr. Johnson.

Lastly, appellant cites his complaint about the selection of Englebert over 

Johnson for the Chief Structural Engineer position as a protected activity.

44 It is 

 44 Appellant does not attempt to connect this complaint to his termination, 

but argues that, at least partly in response to this activity, Underwood issued the 

Letter of Counsel against him. Because we conclude that appellant’s objection to 

Englebert’s hiring is not a protected activity, we express no view on the separate 

question whether the Letter was a materially adverse action under the HRA.
34

undisputed that appellant told Underwood he believed Johnson was more qualified 

for the position and that he thought the selection of Englebert was an instance of 

racial discrimination. Appellees argue, however, that this was not protected 

activity because the record shows that appellant did not have a reasonable good 

faith belief that discriminatory hiring occurred, and the point was not in material 

dispute. We agree with appellees on this point.

The “reasonable good faith belief” test is not a high bar. It asks only 

whether the employee reasonably and sincerely believed when they made the 

report that unlawful discrimination occurred.

45 If so, the employee is protected 

from retaliation even if the belief was mistaken and the employer’s conduct was 

lawful, for the HRA’s goal of rooting out workplace discrimination “relies heavily 

on the initiative of aggrieved employees, whose efforts in the public interest would 

be severely chilled if they bore the risk of [retaliation] whenever they were unable 

 45 See, e.g., Green, 652 A.2d at 46; Moyo v. Gomez, 40 F.3d 982, 984 (9th 

Cir. 1994) (“An erroneous belief that an employer engaged in an unlawful 

employment practice is reasonable, and thus actionable . . . , if premised on a 

mistake made in good faith. A good-faith mistake may be one of fact or of law.”); 

Rucker v. Higher Educ. Aids Bd., 669 F.2d 1179, 1182 (7th Cir. 1982) (“[I]t is 

good faith and reasonableness, not the fact of discrimination, that is the critical 

inquiry in a retaliation case.”); Parker v. Balt. & Ohio R. Co., 652 F.2d 1012, 1019 

(D.C. Cir. 1981).
35

to establish . . . the merits of their claims.”46 Generally speaking, a plausible 

complaint that a more qualified member of a racial minority was passed over for a 

position in favor of a less qualified white applicant does suggest the existence of a 

reasonable and good faith belief that discriminatory hiring took place, even if the 

complainant turns out to be wrong about the relative merits of the applicants,47 and 

will be sufficient to trigger the anti-retaliatory protections of the HRA.

But the context of this case distinguishes it. For present purposes, we 

assume that appellant made his charge of racial discrimination in good faith. 

Nonetheless, appellant did not have, and has never articulated, an objectively 

reasonable basis for accusing DCRA of such discrimination in selecting Englebert 

over Johnson to head the POD. He failed to show a material dispute on this issue. 

It is undisputed that Director Bolling made the hiring decision after a review panel 

found both applicants to be highly qualified and eligible to be selected by her in 

light of their high review scores (96 for Englebert and 98 for Johnson). It is 

 46 Parker, 652 F.2d at 1019.

47 Cf. Brown v. Nat’l Acad. of Sciences, 844 A.2d 1113, 1123 (D.C. 2004) 

(employees will make out a prima facie case of discrimination in hiring if they can 

show (1) they belong to a protected class; (2) they were qualified for the position; 

(3) their “failure to be hired occurred despite [their] employment qualifications;” 

and (4) the decision not to hire them was based on their protected class status).
36

undisputed that she selected Englebert because of his superior code review 

qualifications, which was the area where supervision of the POD was deemed most 

needed. Appellant has pointed to no evidence that the review panel’s criteria were 

discriminatory, or applied discriminatorily in this instance, or that Bolling’s stated 

reason for picking Englebert was not her real reason.

Appellant’s longstanding disagreement on the merits with DCRA’s 

emphasis on code review over engineering skills in selecting a head of the POD 

did not provide a reasonable basis for his charge of racial discrimination. The 

record shows that the determination to prioritize code review skills and 

deemphasize engineering skills in this area was a legitimate and nondiscriminatory policy decision made to address a serious deficiency in the POD’s 

performance of its main function. Appellant has pointed to no evidence to the 

contrary. And appellant clearly knew that DCRA officials, including Bolling,

believed code review experience was critical and that engineering skills were 

secondary. They had been emphasizing that policy for years; it was, after all, the 

subject of appellant’s 2013 complaint about the GS-13 plan reviewer position—he 

disagreed with Bolling and Sabbakhan’s view then that the POD needed reviewers 

with ICC certifications more than it needed them to have engineering degrees. In 

other words, appellant was aware that there was a legitimate, sufficient, non-
37

discriminatory reason for Englebert’s selection, and the record does not show that 

appellant had a basis to dismiss that reason as pretextual.48 

Moreover, appellant did not have (and still does not have) a sound basis to 

assert that Johnson was materially more qualified than Englebert. Having made no 

inquiry into the actual hiring process, appellant was unaware how the two 

applicants had been evaluated or how they scored. Their virtually identical review 

scores would seem to imply, if anything, that they were equally qualified to fill the 

position. Certainly, appellant has failed to show that the two-point difference was 

significant, or that it would have made his belief in discrimination any more 

 48 Indeed, appellant proffered no evidence, other than his own unsupported 

opinion, that engineering degrees really were more valuable in the plan reviewer 

role than other qualifications, which conceivably might have lent support to a 

reasonable belief that Bolling had made up a pretextual basis for hiring Englebert. 

See, e.g., Estenos, 952 A.2d at 893-94 (factual dispute regarding job qualifications 

created a triable issue of fact on whether a termination was pretextual). Nor did 

appellant argue to his employer that their preference for applicants with ICC 

certifications disproportionately excluded non-white or foreign born applicants, 

which might have supported a reasonable belief that DCRA’s hiring policy had an 

unlawful disparate impact on those applicants, see, e.g., Ricci v. DeStefano, 557 

U.S. 557, 578 (2009) (“Under the disparate-impact [theory] a plaintiff establishes a 

prima facie violation by showing that an employer uses a particular employment 

practice that causes a disparate impact on the basis of” a protected class.), and 

there are no facts in the record to suggest this was the case. 
38

reasonable had he known of it.49 And the record indicates that both candidates had 

long experience, the big difference being that Englebert’s experience was focused 

on code review, which is what the DCRA deemed most important. At his 

deposition, appellant himself conceded that Englebert had acquired over thirty ICC 

certifications, while he did not know whether Johnson had obtained any. There 

appears to be no evidence in the record that Johnson in fact had acquired any ICC 

certification or other accreditations testifying to his code review expertise.

In sum, an accusation of racism is a very serious charge. For it to be 

objectively reasonable it is not enough that it is leveled in good faith. Such an 

accusation cannot be called objectively reasonable when, as here, the accuser (1) 

knows that the challenged decision has a genuine and legitimate nondiscriminatory rationale, (2) beyond that, has made no reasonable inquiry into the 

merits of the decision or the process by which it was made, and (3) has no basis for 

accusing the decision makers of any discriminatory animus or bias. We conclude 

 49 At least one circuit has held that information not known to the employee 

cannot support the reasonableness of an employee’s belief of employer 

misconduct. Clover v. Total System Services, Inc., 176 F.3d 1346, 1352 (11th Cir. 

1999) (analyzing a Title VII retaliation claim). We need not reach that issue in this 

case.
39

there is insufficient evidence that appellant reasonably believed the hiring of 

Englebert violated the HRA for his retaliation claim to survive summary judgment.

D. Whistleblower Protection Act

The WPA protects District employees from “retaliation or reprisal” when 

they, in the public interest, “report [government] waste, fraud, abuse of authority, 

violations of law, or threats to public health or safety.”50 In order to state a prima 

facie WPA claim, a plaintiff must show (1) that they made a disclosure protected 

by the Act; (2) that a supervisor “took or threatened to take a prohibited personnel 

action” or otherwise retaliated against them; and (3) that the protected disclosure 

“was a contributing factor to the retaliation or prohibited personnel action” (i.e. the 

protected disclosure and the prohibited personnel action are causally connected).51

A “protected disclosure” is defined to include (as pertinent here) “any 

disclosure of information . . . to any person by an employee . . . that the employee 

reasonably believes evidences,” among other things, “gross mismanagement,” a 

“violation of federal, state, or local law, rule, or regulation,” or a “substantial and 

 50 D.C. Code § 1-615.51 (2016 Repl.).

51 Wilburn v. District of Columbia, 957 A.2d 921, 924 (D.C. 2008).
40

specific danger to the public health and safety.”52 The employee must hold such a 

belief at the time the whistle is blown, and the belief must be both sincere and 

objectively reasonable.53 Appellant claims he made protected disclosures that

supported his WPA retaliation claim by (1) objecting to or refusing to approve the 

permit applications described above by GWU, Union Kitchen, Mr. Peterson, and a 

“white couple;” (2) complaining that Englebert was hired unlawfully; and (3)

complaining about the GS-13 “inspector” position.

In granting summary judgment to appellees, the trial court concluded that 

appellant had failed to proffer sufficient evidence from which a jury could find that 

he stated a prima facie case under the WPA. Specifically, the court ruled that (1) 

appellant did not make protected disclosures when he objected to three of the 

permit approvals and charged that Englebert had been hired unlawfully; and (2) 

appellant had not established that either his 2013 complaint regarding the GS-13 

“inspector” position or his January 2015 complaint concerning the GWU permit

 52 D.C. Code § 1-615.52(a)(6) (2016 Repl.).

53 See Freeman v. District of Columbia, 60 A.3d 1131, 1143 (D.C. 2012); 

Johnson (Nancy) v. District of Columbia, 225 A.3d 1269, 1276 (D.C. 2020) 

(“Plaintiffs . . . must show that they had a reasonable and genuine 

contemporaneous belief that the actions they disclosed rose to the level of 

seriousness required under the DCWPA.”).
41

(assuming they were protected disclosures) was linked to a retaliatory or adverse 

personnel action. Appellant argues that all those rulings were incorrect as a matter 

of law, and that his WPA claim therefore should proceed to trial. For the following 

reasons, we are not persuaded to reverse the trial court’s judgment in favor of 

appellees on this claim.

1. Appellant’s Alleged Protected Disclosures

Appellant argues that his objections to approving the plans submitted by 

Peterson, Union Kitchen, and the “white couple” were protected disclosures that 

raised issues of gross mismanagement, “violations of D.C. rules,” and a substantial 

and specific danger to public safety. He maintains that approving construction

permits in those instances without first requiring design or other changes meant 

approving plans with dangerous flaws and prevented the department from 

resolving code violations before construction on a project began.

We assess the reasonableness of appellant’s belief under the “disinterested 

observer test,” which asks whether “a disinterested observer with knowledge of the 

essential facts known to and readily ascertainable by the employee reasonably 
42

[could] conclude that the actions of the government evidence illegality?”54 This 

analysis does not “hinge[] upon whether the [action] was ultimately determined to 

be illegal,” but it does require that the employee’s belief be objectively reasonable 

and that the employee has not ignored essential facts, including those “which 

detract[] from a ‘reasonable belief.’”55 “In other words, the fact finder must 

consider whether the employee reasonably should have been aware of information 

that would have defeated his inference of official misconduct.”56 

While appellant frames his complaints regarding the permits as sounding an 

alarm about the risks of the agency’s focus on code compliance review rather than 

design evaluation, the record does not support a finding that appellant had a

“reasonable and genuine contemporaneous belief” that the approvals in question 

posed real safety concerns to the District or meaningfully impeded POD’s ability 

to regulate building construction and modification.57 He conceded to his 

 54 Freeman, 60 A.3d 1131, 1151 (D.C. 2012) (quoting Zirkle v. District of 

Columbia, 830 A.2d 1250, 1259-60 (D.C. 2003) (alterations omitted). This court 

adopted the “disinterested observer test” from federal authorities interpreting the 

“similarly worded” federal WPA. See Zirkle, 830 A.2d at 1260 n.13.

55 Freeman, 60 A.3d at 1152.

56 Id. (emphasis in original).

57 Johnson (Nancy), 225 A.3d at 1276.
43

supervisors, for example, that his “further assessment determined” Peterson’s 

basement design to be “adequate,” belying his contention on appeal that the design, 

or the process by which it was approved, was unsafe.58 And his complaints 

regarding the Union Kitchen permit and the “white couple’s” residential 

construction permit merely raised vague concerns that conditional approvals would 

prove “costly” (to whom, it is unclear) to correct and that “guesswork” in a private 

individual’s own construction costs would somehow cheat the government.

59 

Appellant opposed an agency policy that favored performing an expeditious

code review, noting issues of substance, and approving the permits conditioned on 

making the code corrections identified in the review. This was a policy about 

 58 Appellant raises the additional argument that the basement needed a 

separate ventilation system according to District law. He has cited no law or 

regulation to us indicating that is the case, and both his supervisor and Peterson 

clearly disagreed with his interpretation. On this record, the dispute appears to be 

nothing more than a “[d]ebatable difference[] of opinion,” and thus does not rise to 

the level of a protected disclosure. District of Columbia v. Poindexter, 104 A.3d 

848, 855 (D.C. 2014).

59 These complaints stand in marked contrast to the authorities appellant 

cites as support for his contention that he made protected disclosures about the 

safety and soundness of POD’s permitting policies. In those cases, plaintiffs raised 

specific complaints about the “serious and potentially life-endangering problems” 

with a manager’s response to a fire, see Coleman v. District of Columbia, 794 F.3d 

49, 58 (D.C. Cir. 2015), or reported such waste of funds that a jury could conclude 

that a District project was “just burning money,” see Williams v. Johnson, 776 F.3d 

865, 871 (D.C. Cir. 2015).
44

which reasonable people can disagree; in fact, appellees argue that the policy is 

consistent with that of other jurisdictions. A mere policy disagreement with an 

agency or supervisor is not enough to show either gross management or a 

substantial and specific danger to public safety; an employee “must disclose such 

serious errors by the agency that a conclusion that the agency erred is not debatable 

among reasonable people.”60 Appellant’s “purely subjective perspective” on the 

agency’s permitting process is insufficient for a reasonable jury to conclude that he 

made a protected disclosure under the WPA.61

Appellant further argues that he presented evidence sufficient to establish 

that when he complained to Underwood about the Englebert hiring, he reasonably 

believed the hiring decision was racially motivated or an act of preferential 

treatment and a violation of District law. Our reasons for rejecting this contention 

overlap with our reasons for rejecting his similar HRA retaliation claim.

Appellant’s claims of racial discrimination and preferential treatment in the 

Englebert hiring do not pass the disinterested observer test, because the objective 

merits of Englebert’s hiring were either known or “readily ascertainable” to 

 60 Johnson (Nancy), 225 A.3d at 1275 (quoting Wilburn, 957 A.2d at 925).

61 Poindexter, 104 A.3d at 858 (quoting Zirkle, 830 A.2d at 1260).
45

appellant. As previously discussed, at the time of his selection, appellant knew 

that the DCRA was moving in a direction that privileged Englebert’s code 

expertise and background. Appellant’s assertion that Johnson was clearly more 

qualified was out of touch with a disinterested observer’s view as to whom the 

agency reasonably and fairly could hire. 

2. “Disclosures” Regarding the GS-13 “Inspector” Position and 

the GWU Permit Approval

Appellant characterizes as protected disclosures his communications with 

Bolling and Sabbakhan in which he opposed the creation of the new GS-13 

“inspector” position, and his email to DCRA attorney Matt Orlins stating that the 

GWU permit made him “somehow uncomfortable.” The trial court assumed 

arguendo that these complaints were protected disclosures, but concluded that 

appellant had failed to show that they contributed to any prohibited personnel 

action taken against him. While we doubt a jury could find either was a protected 

disclosure,62 we affirm the award of summary judgment on the grounds on which 

the trial court relied. 

 62 As discussed above, there is no record support for appellant’s claim that 

his opposition to the GS-13 position was a protected disclosure because it raised an 

issue of disparate treatment of POD reviewers based on their national origin. And 

appellant’s email stating that he was “somehow uncomfortable” with a 

(continued...)
46

The two-year lapse between appellant’s complaints regarding the creation of 

the GS-13 position and his termination is fatal to his argument that those events 

were linked,

63 and while the record shows that Underwood was made aware of the 

2013 complaint by April 27, 2015, there is no evidence that the Letter of Counsel

(given to appellant on April 13, 2015), appellant’s termination (which occurred 

two months later), or any other reprimand by Underwood bore any relation to 

appellant’s 2013 advocacy.

As for appellant’s email about the GWU permit, the trial court correctly 

concluded that there was no causal connection between it and any prohibited 

personnel action, because there is no evidence that appellees were aware of the 

disclosure.

64 Appellant sent his email only to Mr. Orlins, and Bolling could not 

 

(continued...)

supervisor’s directive to approve a particular permit application was in all 

likelihood too vague to alert its addressee that appellant believed there was gross 

mismanagement or a substantial and specific danger to public safety.

63 See Freeman, 60 A.3d at 1144-45 (noting that “while the temporal 

proximity of an adverse personnel action to a protected disclosure may lend 

support to an inference of a causal relationship, ‘a stretch of over two years 

realistically cannot constitute temporal proximity in the ordinary sense of that 

phrase’”) (quoting Johnson (Michelle) v. District of Columbia, 935 A.2d 1113, 

1120 (D.C. 2007)).

64 See, e.g. Freeman, 60 A.3d at 1144 (no causal connection between 

alleged retaliatory act and alleged disclosure, because the disclosure took place 

(continued...)
47

recall speaking with Orlins. Appellant’s argument that it is “unlikely” that she 

would not have known of this email is unsupported and “based on guess or 

speculation.”65

III.

For the foregoing reasons, we affirm the trial court’s grant of summary 

judgment to appellees.

 

(continued...)

after the agency action); Williams v. Johnson, 701 F. Supp. 2d 1, 20 (D.D.C. 2010) 

(awarding summary judgment to the District on a WPA claim because the plaintiff 

failed to present evidence that it knew of her meeting with a D.C. Councilmember 

regarding alleged retaliatory acts the District took after she testified before the 

Council).

65 Vogel, 944 A.2d at 464 (D.C. 2008) (citations and quotations omitted).