Christina Williams v. Robert Johnson

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 22, 2014 Decided January 16, 2015

No. 12-7074

CHRISTINA CONYERS WILLIAMS,

APPELLEE

v.

ROBERT JOHNSON, INDIVIDUALLY AND AS SENIOR DEPUTY

DIRECTOR, ADDICTION PREVENTION AND RECOVERY

ADMINISTRATION, DISTRICT OF COLUMBIA DEPARTMENT OF

HEALTH, ET AL.,

APPELLANTS

TORI WHITNEY AND DAVID A. CATANIA,

INTERVENORS

Consolidated with 12-7081

Appeals from the United States District Court

for the District of Columbia

(No. 1:06-cv-02076)

2

Holly M. Johnson, Assistant Attorney General, Office of

the Attorney General for the District of Columbia, argued the

cause for appellants. With her on the briefs were Irvin B.

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

and Donna M. Murasky, Deputy Solicitor General, at the time

the briefs were filed. Loren L. AliKhan, Deputy Solicitor

General, and Sarah L. Knapp, Assistant Attorney General,

entered appearances.

V. David Zvenyach argued the cause for intervenor David

Catania. With him on the brief was John Hoellen.

John F. Karl Jr. argued the cause for appellee/cross-

appellant. With him on the briefs was Kristen Grim Hughes.

Brian K. Flowers entered an appearance.

Les Alderman and Alan R. Kabat were on the brief for

amicus curiae Metropolitan Washington Employment

Lawyers Association in support of appellee/cross-appellant.

Before: KAVANAUGH, Circuit Judge, and EDWARDS and

GINSBURG, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge

GINSBURG.

GINSBURG, Senior Circuit Judge: When Christina

Conyers Williams, an employee in the D.C. Department of

Health, Addiction Prevention and Recovery Administration

(APRA), testified before the D.C. Council, she revealed that

her department‟s new software program to keep track of client

data was not currently useful and that its roll out was behind

schedule. She knowingly contradicted the overly optimistic

answers her supervisors had submitted to the Council in

advance of the hearing. Immediately following this incident

3

and for some months thereafter, Williams was harassed by her

supervisors, causing her to sue the District of Columbia for

retaliation under the D.C. Whistleblower Protection Act

(WPA)* and, eventually, to resign. At trial, the jury saw a

video of the 2006 Council meeting and heard evidence about

the way Williams‟s supervisors treated her afterward. They

returned a verdict finding that Williams‟s Council testimony

exposed information serious enough to warrant protection

under the WPA and awarded her $300,000 in damages, in part

for the salary cut she took when she resigned her position

with APRA and took a new position with the federal

government.

The District asks us to overturn the jury‟s verdict,

arguing both that Williams‟s disclosures are not serious

enough to warrant protection under the WPA and that the

evidence does not support a finding that her working

conditions were so oppressive as to give her no choice but to

resign. The District additionally argues Williams‟s claim for

back and front pay is barred because she failed to give the

District timely notice that she would argue her resignation

was a constructive discharge, which notice was required by

statute when she resigned but not when she amended her

complaint to include claims for back and front pay.

We conclude the jury‟s verdict finds adequate support in

the record and we affirm the district court‟s holding that the

notice provision is a procedural requirement that, having been

made inapplicable to the WPA, does not limit the claims a

plaintiff may bring against the District under that statute,

*

Williams additionally made claims under the First Amendment,

which claims gave the district court supplemental jurisdiction over

her D.C. law claims. The district court has since dismissed her

constitutional claims.

4

regardless whether the underlying conduct occurred while the

notice provision was in effect.

I. Background

In April 2005 Williams was tasked by APRA with

overseeing the implementation of ACIS, a new client

information system being developed by a software contractor

that was supposed to capture demographic and client

assessment data, similar to a system of electronic medical

records. Phase 1, in which the program was installed at a

single hospital and collected client demographic information,

was completed in June 2005, but there was no subsequent

progress toward Phase 2, which was supposed to include

bringing more hospitals and other facilities online, adding

client medical assessments, and measuring them against

national outcome standards. The deadline set for Phase 2 was

August 2005. The third and final phase was to be completed

and the contract closed out by November 2006.

In February 2006, APRA was going to have to answer for

its progress, or lack thereof, on the project at a routine

oversight hearing before the D.C. Council‟s Committee on

Health, chaired by Councilman David Catania. In

preparation, Williams drafted written answers to the Council‟s

questions and submitted them to her supervisor, Robert

Johnson. According to Williams‟s trial testimony, the

answers ultimately submitted to the Council were not as she

had drafted them and were materially misleading. Although

she had written that ACIS at that time could collect only

demographic data, the answers that APRA submitted to the

Council indicated it could collect client assessment data to be

measured against national outcome standards; similarly,

although she had written that the system would not be fully

5

rolled out until November 2006, the submitted answers stated

that would happen in July 2006.

At the hearing, when Chairman Catania asked Johnson

about ACIS, Johnson deferred to Williams, putting the altered

answers in front of her and saying “go for it.” According to

Williams‟s trial testimony, she saw for the first time when she

sat down to testify that her answers had been changed but she

understood Johnson wanted her to stick to the script, so to

speak. Williams instead testified truthfully, telling the

Council that ACIS had not yet been implemented at all the

planned facilities and could collect only demographic data.

Chairman Catania expressed frustration with these responses,

concluding that the system was essentially useless and that

without assessment data “we‟re just burning money.”

Williams also testified that the expected date for collecting

assessment data was November 2006, and although Catania

noted the discrepancy with the official estimate of July 2006,

he approved the extension. Finally, noting the program was

way over budget, the Chairman warned “this smells,” and

threatened a False Claims Act investigation into “what looks

like a competitively bid contract,” insinuating wrongdoing,

perhaps on the part of APRA in awarding the contract. At

trial the jury saw a videotape of this entire exchange.

The day after the hearing, Johnson held a staff meeting at

APRA in which he expressed concern over the threatened

investigation and blamed it on Williams‟s testimony;

according to Williams, Johnson said she had “made APRA

look like „crooks,‟ and made it appear the agency was doing

something wrong.” According to trial testimony by both

Williams and other witnesses, Johnson and his chief of staff

harassed Williams from this time forward by, among other

things, treating her with open hostility, subjecting her to

impossible demands, and threatening to terminate her. In

6

March 2006, one month after the hearing, Williams met

privately with Councilman Catania to discuss the problems

with ACIS and the harassment she was experiencing. After

this meeting, Williams testified, the harassment “took on a

different spin;” eventually Johnson stripped her of all

responsibilities, staff, and resources.

Beginning in August 2006, Williams sent the D.C. Office

of Risk Management several letters alleging harassment. In

October she began looking for a new job. At the beginning of

December, she filed this lawsuit, alleging retaliation for her

disclosures both at the Council hearing and at her private

meeting with Councilman Catania. The trial court granted the

District‟s motion for summary judgment with regard to her

claims concerning the private meeting for want of evidence

that Williams‟s supervisors were aware of that meeting.

Williams v. Johnson, 701 F. Supp. 2d 1, 16-19 (D.D.C. 2010).

At the end of December 2006, Williams was informed

that Johnson would not be returning in the new mayor‟s

administration. Her new supervisor, Linda Fisher, started in

January 2007 and Williams immediately asked Fisher to

restore her previous responsibilities. Although Fisher never

demonstrated any animus toward Williams, she did eliminate

Williams‟s position, transfer her to a different group, and

from February through June 2007 did not give her any

significant work to do. In June 2007, Williams finally

resigned because, she testified, “I had no job. I had no

duties.” She took a position with the U.S. Public Health

Service, accepting a lower salary and less responsibility than

in her prior position.

In August 2010, more than three years after she had

resigned, Williams amended her complaint to claim the

difference in pay “she would have earned had she not been

7

constructively discharged.” The District moved for summary

judgment on Williams‟s constructive discharge claim, arguing

she had not given the District notice of that claim, as required

by D.C. Code § 12-309, within six months of the alleged

retaliation. The court denied this motion on the ground that

the D.C. Council had since dropped compliance with § 12-

309 as a requirement for making claims under the WPA and

that this amendment applied retroactively to relieve Williams

of the duty to notify. Williams v. Johnson, 794 F. Supp. 2d 22

(D.D.C. 2011).

When the case went to trial, Williams pressed eleven

claims of retaliation under the WPA. The court dismissed one

and the jury found for Williams on the other ten, awarding her

$300,000 in damages. The jury returned a special verdict

finding Williams had made a “protected disclosure” before

the D.C. Council and that, in view of her treatment leading up

to and at the time she quit, her resignation amounted to a

constructive discharge. The District moved for judgment as a

matter of law or for a new trial, arguing the evidence did not

support either of the jury‟s findings. The district court denied

that motion, Williams v. Johnson, 870 F. Supp. 2d 158

(D.D.C. 2012), the District appealed, and Williams filed a

conditional cross-appeal.

II. Analysis

When an appellant challenges a district court‟s denial of a

motion for judgment as a matter of law filed after a jury

verdict is entered, as does the District here, our review is

“very limited.” Ferebee v. Chevron Chem. Co., 736 F.2d

1529, 1534 (D.C. Cir. 1984). In contrast, we review de novo

the purely legal question whether Williams‟s claim for

constructive discharge was barred by the requirement of

timely notice. See Whatley v. District of Columbia, 447 F.3d

8

814, 819-20 (D.C. Cir. 2006). At the same time, however, we

defer to the District of Columbia Court of Appeals‟

interpretation of the D.C. Code. See United States v. Edmond,

924 F.2d 261, 264 (D.C. Cir. 1991).

Williams cross-appeals in the event we vacate the verdict,

seeking to reinstate her claims based upon the private meeting

with Councilman Catania. Because we affirm the judgment

of the district court, we do not reach Williams‟s cross-appeal.

A. Sufficiency of the Evidence

The jury performs its quintessential function when it

decides the magnitude of a misdeed. Cf. Dellums v. Powell,

566 F.2d 167, 207 (D.C. Cir. 1977) (Leventhal, J.,

concurring) (“It is ... a traditional function of the jury to make

judgments as to the reasonableness of an actor‟s conduct”).

In this case, the jury was charged with deciding the

significance of the agency misconduct Williams disclosed to

the Council as well as the degree of mistreatment she endured

until she resigned. Because the jury was correctly instructed

about the requirements of the law, the District argues only

that the evidence presented at trial did not support the jury‟s

conclusion that the District‟s misconduct was sufficiently

serious to trigger liability. As the District well knows,

however, we will not overturn a jury verdict “unless the

evidence and all reasonable inferences that can be drawn

therefrom are so one-sided that reasonable men and women

could not disagree.” Scott v. District of Columbia, 101 F.3d

748, 753 (D.C. Cir. 1996).

1. Protected disclosure

We have often noted in retaliation cases that whether the

employee plaintiff engaged in a protected activity is a “fact

9

specific inquiry.” See, e.g., Shekoyan v. Sibley Int'l, 409 F.3d

414, 423 (D.C. Cir. 2005) (applying whistleblower provision

of the False Claims Act). The fact specific question here is

whether Williams‟s disclosure to the Council is the kind of

revelation the WPA is meant to protect. The D.C. Court of

Appeals has held that a disclosure is protected by the WPA if

it reveals “such serious errors by the agency that a conclusion

the agency erred is not debatable among reasonable people.”

Wilburn v. District of Columbia, 957 A.2d 921, 925 (2008)

(quoting White v. Air Force, 391 F.3d 1377, 1382 (Fed. Cir.

2004)). Pursuant to the statutory definition of “protected

disclosure,” that agency error can take any of several forms:

(A) Gross mismanagement;

(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).

The District first argues that Williams‟s disclosure about

the failures of ACIS is like disclosures the D.C. Court of

Appeals has previously held insufficient to qualify as “the

type of gross abuse or violations described in the statute.”

Wilburn, 957 A.2d at 926.

10

The D.C. Court of Appeals held in Wilburn that an

employee did not make a protected disclosure under § 1-

615.52(a)(6) when the “gist” of her revelation was that a

government contractor‟s work was sometimes unsatisfactory

and it had “just barely met the contractual requirements.” Id.

The court also cited with approval a Federal Circuit decision

holding that an employee did not disclose a gross waste of

funds by revealing that the Army paid for a scientist to travel

abroad for a meeting even though it was not necessary to the

Army‟s mission. Id. at 925 (citing Ward v. Merit Sys. Prot.

Bd., 981 F.2d 521, 523-28 (Fed. Cir. 1992)).

The District also calls our attention to a decision that

issued after oral argument in the present case: District of

Columbia v. Poindexter, Nos. 12-CV-1477 & 13-CV-82 (D.C.

Dec. 11, 2014). In that case, the Court of Appeals overturned

a WPA jury verdict, holding that the plaintiff did not reveal

gross mismanagement when she disclosed that her supervisor

required some employees to record their time but had a more

lax policy with others. The court announced that the test for

“gross mismanagement” is that the “action or inaction ...

creates a substantial risk of significant adverse impact on the

agency‟s ability to accomplish its mission” and it viewed the

plaintiff‟s disclosure as falling short because there was a

“difference of opinion” whether certain employees should

record their time. Id., slip op. at 11-13 (citation omitted).

In each of these cases, the employee‟s disclosure was

minor relative to the scope of the agency‟s work. In the

present case, however, there is surely room for debate

whether Williams‟s disclosure about the failures of ACIS is

significant enough to fall within any of several types of

disclosures protected under § 1-615.52(a)(6); therefore, the

district court correctly let the jury decide the matter.

11

Implementing ACIS was an important objective for

APRA and there could be no difference of opinion that the

project was off course. APRA‟s expenditures on ACIS were

significant and, in Councilman Catania‟s words, Williams‟s

disclosure showed the agency was “just burning money”

given that the system could only report gender, sex, and race.

This case is not like Wilburn, in which the contractual

requirements had been met, if just barely. To the contrary, in

discussing the contractor‟s performance, Catania questioned

whether the software vendor had violated the False Claims

Act and remarked “this smells ... three-and-a-half million

dollars for some simple data collection, this shouldn‟t take

two years, this should take 20 minutes and it sure shouldn‟t

cost three million dollars.” Although the Councilman‟s

opinion is not dispositive, he was familiar with the goals of

the project and had no apparent reason to overstate the

problems Williams disclosed during the Council meeting.

Therefore, the jury could reasonably infer from his reaction to

the facts Williams disclosed that APRA‟s oversight of the

project constituted “gross mismanagement” or a “gross ...

waste of public resources.”

Even if APRA‟s mismanagement of ACIS was

insufficiently serious to qualify Williams‟s statements for

protection under the WPA, those statements may reasonably

have been viewed by the jury as disclosing an “abuse of

authority” or a “violation of ... law” within the ambit of § 1-

615.52(a)(6). At trial, Williams testified that just before she

testified to the Council, she saw her answers to the Council‟s

questions had been changed, realized her supervisor wanted

her to give the incorrect answers, and proceeded instead to

give what she knew were the truthful answers.

The District argues Williams did not make clear which

changes she saw and therefore the jury would “have to

12

speculate to find that Williams even knew that she was

disclosing APRA‟s „misstatement.‟” This argument is too

little too late. The District had the opportunity on cross-

examination to clarify the extent to which Williams realized

her answers had been changed, but it did not do so then and

therefore left open to the jury the reasonable inference that

Williams intentionally exposed APRA‟s effort to mislead the

Council. Moreover, we think misleading the Council must be

either an “abuse of authority” or a “violation of ... law” within

the meaning of the statute defining “protected disclosure”

because the express purpose of the WPA is to ensure

employees are free to report, among other things, “fraud,

abuse of authority,” and “dishonesty.” See D.C. Code § 1-

615.51.

Finally, the District argues Williams did not present

evidence of her subjective belief that her Council testimony

revealed serious misconduct. Although it is true that

Williams is protected by the WPA only if she “reasonably

believed” she was revealing information demonstrating the

serious misconduct described in § 1-615.52(a)(6), see

Freeman v. District of Columbia, 60 A.3d 1131, 1141 (D.C.

2012), we find no support in the case law for the proposition

that she needed to present separate evidence of her subjective

belief. That a reasonable juror “with knowledge of the

essential facts known to and readily ascertainable by the

employee,” id. at 1151 (citation omitted), could find that the

revelations were objectively serious is sufficient to support a

jury‟s finding that Williams believed them to be serious when

she made them.

Only when the disclosing party was unaware of a fact

critical to the significance of the information disclosed has the

D.C. Court of Appeals held he lacked the requisite subjective

belief. That was the situation in Freeman: the employee

13

disclosed conduct he did not know was illegal and therefore,

the court held, he was not protected by the WPA. Id. at 1143.

We could find no case, however, in which the D.C. Court of

Appeals has required the disclosing party to offer evidence

that he appreciated the gravity of something that, knowing all

the facts he knew, a reasonable person could determine was

objectively serious. The District points to Zirkle v. District of

Columbia, 830 A.2d 1250 (D.C. 2003), but that case is

unhelpful. There the court considered the disclosing party‟s

subjective understanding of the gravity of the conduct only

because it was not objectively serious; he thought the conduct

he disclosed was illegal but it was not. Id. at 1259-60.

In sum, before the district court gave the jury the special

verdict form with the question “Do you find that Plaintiff‟s

testimony before the District of Columbia Council in

February 2006 included or constituted a protected

disclosure?” it had been presented with sufficient evidence to

answer in the affirmative.

2. Constructive discharge

“Whether working conditions are so intolerable that a

reasonable person is forced to resign,” like the question

whether a disclosure is sufficiently serious to warrant

protection, “is a question for the trier of fact.” Arthur Young

& Co. v. Sutherland, 631 A.2d 354, 362 (D.C. 1993) (citing

Simpson v. Fed. Mine Safety & Health Review Comm’n, 842

F.2d 453, 463 (D.C. Cir. 1988)).

First, the District argues the jury could not reasonably

conclude that harassment by Williams‟s former supervisors

justified her resigning six months after they had left. That,

however, was not what the jury was asked to determine; to the

contrary, it was instructed to find Williams was constructively

14

discharged only if her working conditions were intolerable “at

the time she left her position.” The earlier harassment was

relevant to the jury‟s inquiry only insofar as it may have

created an intolerable situation that persisted until Williams

finally resigned.

Second, the District argues the evidence does not support

the jury in concluding Williams‟s working conditions at the

time of her resignation were truly “intolerable.” The D.C.

Court of Appeals has held evidence of discriminatory actions

that “essentially locked [the employee] into a position” that

did not allow for career advancement is sufficient to support a

finding of constructive discharge. Id. at 362-63 (citing Clark

v. Marsh, 665 F.2d 1168, 1174 (D.C. Cir. 1981)). Williams

testified that, despite her request, none of the job

responsibilities her former supervisors had taken away from

her was ever restored; indeed, her new supervisor eliminated

her position and, although Williams was nominally put in a

new position, her new supervisor had not found any work for

Williams to do in more than five months of asking. In other

words, Williams presented evidence that the damage her

harassing supervisors had done had a lasting effect and that

she was essentially unable to work, let alone advance, in her

job. This scenario is far more dire than the one in Aliotta v.

Bair, 614 F.3d 556 (D.C. Cir. 2010), upon which the District

relies. There, the employee‟s prospects were merely

uncertain because the employer had threatened a reduction-in-

force layoff. Id. at 566-67. Under the circumstances of this

case, the district court was correct to let the jury resolve

whether Williams had no reasonable choice but to resign

when she did.

15

B. Requirement of Notice*

Finally, the District argues that Williams should not have

been able to bring her claim for constructive discharge

because she did not satisfy the requirement of timely notice

codified at § 12-309 of the D.C. Code:

An action may not be maintained against the District of

Columbia ... unless, within six months after the injury or

damage was sustained, the claimant ... has given notice in

writing to the Mayor of the District of Columbia of the

approximate time, place, cause, and circumstances of the

injury or damage.

At the time of Williams‟s resignation in June 2007, the

provision of the WPA creating a private right of action for

damages included a one-year statute of limitations as well as

the following requirement: “A civil action brought pursuant to

this section shall comply with the notice requirements of § 12-

309.” D.C. Code § 1-615.54(a) (2001). In March 2010, while

the parties in this case were still filing pretrial motions, the

Council amended the WPA to extend the statute of limitations

to three years and to abolish the notice requirement. D.C.

Code § 1-615.54(a)(2)-(3) (“Section 12-309 shall not apply to

any civil action brought under this section”). The question

*

We note that the District raised the argument that the notice

requirement applied to Williams‟s constructive discharge at the

summary judgment stage but not again after the verdict. Because

this is a purely legal issue, we have jurisdiction to review it even

though an order denying summary judgment is not usually a final

decision subject to review. Feld v. Feld, 688 F.3d 779, 783 (D.C.

Cir. 2012) (“We conclude that we have jurisdiction to hear

[appellant‟s] legal argument because we hold a Rule 50 motion is

not required to preserve for appeal a purely legal claim rejected at

summary judgment”).

16

therefore arises whether the 2010 amendment applies to the

claim for constructive discharge, which Williams filed after

the notice requirement was removed but arose while that

requirement was still in effect.

The D.C. Court of Appeals has instructed that

amendments to statutory procedural requirements “are

generally held to apply to pending cases,” but that a

requirement is not merely procedural if applying the

amendment would “impair vested rights.” Montgomery v.

District of Columbia, 598 A.2d 162, 166 (1991); see also

Bank of Am., N.A. v. Griffin, 2 A.3d 1070, 1075-76 (D.C.

2010) (holding new requirement to file lis pendens notice was

not “clearly procedural” because parties who had perfected

their claims under the prior procedure for securing property

had vested rights).

The District argues the notice requirement of § 12-309 is

not merely procedural even though the D.C. Court of Appeals

held a similar notice requirement was procedural in Lacek v.

Washington Hospital Center Corp., 978 A.2d 1194 (2009). In

that case, the Council had passed legislation requiring

plaintiffs to provide notice of their claims to defendant

medical providers, but the Court of Appeals deemed the

provision “procedural” rather than substantive and applied it

retroactively to require notice for a claim arising from

conduct that had occurred before the notice requirement was

added. Id. at 1197-98. The District attempts to distinguish

the notice requirement in the instant case on the ground that it

provided notice to the Government, not to a private defendant.

According to the District, once the six-month window for

providing notice had passed, the District had a vested right in

its sovereign immunity from Williams‟s claim.

17

To be sure, where the notice requirement of § 12-309

applies, the D.C. Court of Appeals has instructed that

“compliance with [it] is a condition precedent which, if not

met, will prevent the destruction of sovereign immunity,”

Tucci v. District of Columbia, 956 A.2d 684, 695 (2008)

(quotation marks and citation omitted). The District here

argues that consequently, because its sovereign immunity is a

substantive right, the amendment cannot be applied

retroactively to its detriment. The District‟s reasoning,

however, would obliterate the distinction between substance

and procedure. Removing a condition precedent (here,

notice) to the waiver of a substantive right (here, sovereign

immunity) is not the same as abridging the substantive right

itself; all procedural requirements are ultimately conditions

precedent to some substantive right, else they would be

requirements without consequence. As Williams points out,

the Court of Appeals in Tucci was clear in stating the

District‟s waiver of sovereign immunity is not contained in

§ 12-309; rather, the waiver “must be found in some other

source.” 956 A.2d at 696. Therefore, removing the § 12-309

requirement alters not the District‟s waiver of sovereign

immunity but only the steps necessary for a plaintiff to invoke

the waiver.

That the District was at one time during the pendency of

this suit entitled to assert sovereign immunity does not,

contrary to the District‟s argument, mean that entitlement

vested. The District cites several cases in which a claim was

time-barred and a court held it could not be revived even

though the legislature had subsequently extended the statute

of limitations. Those cases are crucially different from this

one because the very purpose of a statute of limitations is to

assure defendants that after a time certain they are free from

suit, an assurance that would be meaningless if a subsequent

amendment could at any time revive the claim. In the

18

statutory scheme before us, there was both a statute of

limitations and a notice-of-claims requirement; obviously,

therefore, the District‟s notice requirement was neither needed

nor intended to give the District security in being free from

suit. Cf. Brown v. United States, 742 F.2d 1498, 1505-06

(D.C. Cir. 1984) (en banc) (reasoning that § 12-309 “has a

purpose that is quite distinct” from “statutes of limitations,

tolling policies, and survival rules, that serve the exclusive

purpose of defining that point where the right to maintain a

cause of action ends”).

Rather, we think abolishing § 12-309 as a condition

precedent for a WPA claim means the Council was willing to

submit the District to suit by whistleblowers without retaining

the litigation advantage of early notice. See id. at 1502

(determining the purpose of § 12-309 is “to provide the

District an opportunity to investigate claims when all

evidence is still fresh, to allow the District to seek out early

settlement of meritorious claims, and generally to protect the

District's revenues from unreasonable suits”). Although the

District may have been better able to gather evidence or to

settle the case on favorable terms if it had been on earlier

notice of Williams‟s claim for constructive discharge, those

advantages bear upon the process of litigation, not upon the

District‟s or Williams‟s substantive rights under the WPA.

The Council‟s determination that the procedural costs in a

case such as this are an acceptable price to pay for the

increased protection of whistleblowers divested the District of

its former right to early notice.

Accordingly, we think Lacek controls and the instant

notice-of-claims requirement is procedural. Williams,

therefore, benefits from the amendment removing the

requirement and is not barred from bringing her constructive

19

discharge claim even though she did not formally notify the

District of that claim within six months of resigning.

III. Conclusion

For the reasons stated above, we agree with the district

court that Williams could bring her constructive discharge

claim and that the jury verdict was supported by sufficient

evidence of a protected disclosure and of a constructive

discharge. Accordingly, there is no need to reach Williams‟s

cross-appeal. The judgment of the district court entering the

verdict is

Affirmed.