UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JACQUELINE C. PERKINS, : : Plaintiff, : Civil Action No.: 18-751 (RC) : v. : Re Document No.: 19 : WCS CONSTRUCTION, LLC, et al., : : Defendants. :

MEMORANDUM OPINION

DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

In this wrongful termination case, Plaintiff Jacqueline C. Perkins (“Perkins”) claims that

Defendants—her direct employer, WCS Construction LLC (“WCS Construction”), plus related

persons and entities (WCS Construction Development LLC, William C. Smith & Co., Inc., and

W. Christopher Smith)—illegally fired her after she reported violent threats made by a fellow

employee. After extensive discovery, Defendants now move for summary judgment. For the

reasons stated below, the Court will deny the motion and allow the matter to proceed to trial.

II. BACKGROUND 1

Ms. Perkins began working at WCS Construction on February 17, 2016. Defs.’

Statement of Material Undisputed Facts (“Defs.’ SOF”) ¶ 1, ECF No. 19-1. WCS Construction

is a general contractor that oversees commercial and residential construction projects and has

about seventy-five employees. Id. ¶ 2. WCS Construction “works closely with” William C.

1 Except where noted, the facts recited here are uncontested by the parties. Both parties’ statements of facts contain extensive detail and additional narrative; the Court focuses on the facts sufficient to resolve the motion. Smith & Co., Inc., a real estate development corporation. Id. ¶¶ 2–3. Both entities are owned

by the same individual, W. Christopher Smith, Jr., and share the same human resources

department. Id. ¶¶ 3, 27. Ms. Perkins initially worked as an Assistant Project Manager, but she

assumed a new role in March 2017, when she became the Executive Assistant to the then-

President of WCS Construction, Jim Anglemyer. Id. ¶¶ 4, 6.

The incident at the heart of this lawsuit allegedly took place on Thursday, June 15, 2017.

Id. ¶ 11. As Ms. Perkins recounts in deposition testimony, she was sitting in Mr. Anglemyer’s

office when Christopher “Cris” Shaw, the Vice President of Operations at WCS Construction,

came in to discuss the finances of a project with the Federal Realty Investment Trust (“FRIT”).

Id. At some point, Mr. Anglemyer left and Mr. Michael Christopher, the CFO, came in and

spoke with Mr. Shaw. Id. ¶¶ 12–13. During their conversation, Mr. Shaw said that he was

“going to drive down to Mr. Davies’ [an FRIT employee] office, take out his gun, and shoot

himself in the head.” Id. ¶ 13. Ms. Perkins stopped typing and said: “What?” Id. ¶ 14. Mr.

Shaw then clarified: “Well, after I shoot John Davies.” Id. Mr. Shaw and Mr. Christopher then

finished up their conversation and left Mr. Anglemyer’s office. Id. ¶ 15.

Ms. Perkins later testified that, because she knew that Mr. Shaw possessed firearms, she

was afraid that he might act on his comments. Pl.’s Mem. in Opp’n to Defs.’ Mot. Summ. J.

(“Pl.’s Opp’n”) ¶ 105, ECF No. 20. Mr. Shaw does indeed own several firearms. Id. ¶ 125.

Accordingly, four days after the incident (on Monday, June 19), Ms. Perkins submitted a letter to

Mr. Christopher (who was not her supervisor or in Human Resources) and voiced her concerns to

him. Defs.’ SOF ¶ 21. The letter relayed the comments made by Mr. Shaw and concluded:

This was a very odd and alarming thing to hear in this day and age, even for a construction company. After discussing this long and hard over the weekend with my boyfriend, he insisted that I document this if in fact it should ever happen. If this would actually occur, I could not live with myself and my conscious. Please allows

2 [sic] this letter to serve as my recount of the event and recommend the next steps of action.

Id. ¶ 20. Ms. Perkins testified that Mr. Christopher “told her to rip it up and throw it away” and

said, “I’m not getting involved.” Pl.’s Opp’n ¶ 106. Defendants maintain that Mr. Christopher,

“while disagreeing with Plaintiff’s assessments and characterizations of Mr. Shaw’s comments,”

merely “recommended that she consult either Mr. Anglemyer (because he was Plaintiff’s

supervisor and President of the company) or Human Resources.” Defs.’ SOF ¶ 21.

That same day, Ms. Perkins later gave the letter to her office manager, who forwarded it

to Human Resources. Id. ¶¶ 26–27. HR then launched an inquiry, interviewing both Mr.

Christopher and Mr. Shaw, but was unable to confirm Ms. Perkins’s account of the meeting. Id.

¶¶ 30–31. Nonetheless, HR informed Mr. Shaw that any comments about violence, even if made

in jest, were inappropriate in the workplace, and warned him against taking any action against

Ms. Perkins for reporting the incident. Id. ¶ 31. On June 21, an HR representative notified Ms.

Perkins that HR had investigated and “taken the necessary next steps and precautions,” thanked

her for raising the issue, and encouraged her to come forward with any additional concerns. Id.

¶ 32.

Ms. Perkins was not satisfied with HR’s response. Id. ¶ 34. She felt that HR had

insufficiently protected her confidentiality during the investigation and later reported at least one

subsequent “uncomfortable encounter” with Mr. Shaw. Id. ¶¶ 34, 49–52. On August 8, 2017,

Ms. Perkins called the Metropolitan Police Department’s (MPD) nonemergency line to report her

concerns. Id. ¶¶ 74–75. According to her deposition, she told an officer “the whole situation,”

the “threat that Cris Shaw made [on June 15, 2017], and then HR breaching [her] confidentiality,

and then that [she] was fearful of him or to myself, and felt like they were retaliating against

me.” Id. ¶ 76. MPD did not launch an investigation or file any charges; the officer told Ms.

3 Perkins that this was an issue that should be handled by the company according to its internal

policies. Id. ¶¶ 77–78.

The day after calling MPD, Ms. Perkins emailed Scott Vossler, who had replaced Mr.

Anglemyer as the President of WCS Construction, and Mr. Smith. Pl.’s Opp’n ¶ 152. The email

stated: “As you all know but continue to avoid and deny I am in an extremely hostile work

environment directly attributed to my reporting to HR the threat made by Cris Shaw and then the

exposing of my confidentiality by HR to Cris Shaw.” Pl.’s Opp’n Ex. EE (“Aug. 9 Email”), ECF

No. 20-31. It concluded: “You all are operating unjust and illegal. I will be consulting

representation and any support from the District as to how to handle this unfair and unjust

treatment.” Id. (Ms. Perkins contends here that “the District” here actually referred to “the

[Seventh] District [of the Metropolitan Police Department].” Pl.’s Opp’n ¶ 152.) Neither

recipient responded to the email; instead, it was forwarded “immediately” to Defendants’

lawyers. Id. Some days later, on August 21, Ian Kessler, the Vice President of Human

Resources, followed up about her email and invited her to a meeting with him and Mr. Vossler.

Pl.’s Opp’n Ex. HH, ECF No. 20-34. Ms. Perkins was fired at this meeting. Pl.’s Opp’n ¶ 155.

III. LEGAL STANDARD

Summary judgment is proper when “the movant shows that there is no genuine dispute as

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

56(a). A “material” fact is one capable of affecting the substantive outcome of the litigation, see

Anderson v. Liberty Lobby, Inc.,

(1986), while a dispute is “genuine” if there

is enough evidence for a reasonable finder of fact to decide in favor of the non-movant, see Scott

v. Harris,

(2007).

4 In considering a motion for summary judgment, a court must “eschew making credibility

determinations or weighing the evidence[,]” Czekalski v. Peters,

(D.C. Cir.

2007), and analyze all underlying facts and inferences in the light most favorable to the non-

movant, see Anderson,

. Nevertheless, conclusory assertions offered without any

evidentiary support do not establish a genuine issue for trial. See Greene v. Dalton,

, 675 (D.C. Cir. 1999). And because the nonmovant’s evidence must allow a reasonable jury

to find in its favor, “merely colorable” or “not significantly probative” evidence will not preclude

summary judgment. Potter v. District of Columbia,

(D.C. Cir. 2009) (quoting

Anderson, 477 U.S. at 249–50).

IV. ANALYSIS

As framed by the Defendants, the central issue here is whether a jury could conclude that

Ms. Perkins’s termination falls under the public policy exception to the at-will employment

doctrine. Generally, under District of Columbia law, an at-will employee like Ms. Perkins “may

be discharged ‘at any time and for any reason, or for no reason at all.’” Clay v. Howard Univ.,

(D.D.C. 2015) (quoting Adams v. George W. Cochran & Co.,

(D.C. 1991)). But in the District of Columbia, as in many jurisdictions, it can be illegal to

terminate even at-will employees for reasons offensive to certain clearly-articulated public

policies. See Carl v. Children’s Hosp.,

(D.C. 1997) (en banc). For a claim to

succeed, a plaintiff must both (1) point to “some identifiable policy that has been officially

declared in a statute or municipal regulation, or in the Constitution,” and (2) show that there is “a

close fit between the policy and the conduct at issue in the allegedly wrongful termination.”

Clay,

(D.D.C. 2015) (quoting Davis v. Cmty. Alternatives of Wash., D.C.,

Inc.,

(D.C. 2013)).

5 Earlier in this case, Defendants moved to dismiss Perkins’s claim on the grounds that,

even accepting the factual allegations in her complaint as true, her dismissal did not fall within

the public policy exception. The Court disagreed, finding that Perkins had “sufficiently tied her

claim to a public policy to survive the motion to dismiss.” Perkins v. WCS Constr., LLC

(Perkins I), No. 18-cv-751,

at *4 (D.D.C. Nov. 5, 2018). At this stage, with

the facts now in clearer view and in light of new and refined arguments from Defendants, it is

appropriate for the Court to take a fresh look at the applicability of the exception. See Herron v.

Fannie Mae, No. 10-943,

, at *17 (D.D.C. Mar. 8, 2016), aff’d,

(D.C. Cir. 2017) (“Now that discovery is over, the Court may consider the entirety of the record

and decide whether there [are] any statutes that support [plaintiff’s] alleged public policy as

required under D.C. law.”).

Consistent with their arguments at the motion to dismiss stage, Defendants contend that

they are entitled to summary judgment on either of two related grounds. First, they argue that

Ms. Perkins cannot identify a clear statement of official policy that the termination supposedly

offended. Defs.’ Mem. in Supp. Mot. Summ. J. (“Defs.’ MSJ”) at 3, ECF No. 19-2. Second,

they argue that, even if there is a sufficiently clear policy at issue, Ms. Perkins cannot establish

the required connection or “fit” between the policy and the allegedly wrongful termination.

at 3–4. As at the motion to dismiss stage, Ms. Perkins has the better argument on both questions.

A. Clear Public Policy

As this Court previously summarized, “courts in D.C. and in this circuit have painted a

somewhat confusing picture of what constitutes a public policy sufficiently rooted in law to give

rise to a claim for wrongful termination in violation of public policy.” Perkins I,

at *4. Despite some uncertainty on the margins, however, “courts have generally found

6 a viable public policy to be involved in two types of situations.”

First, “termination for

engaging in an activity when the employee points to a law that reflects a policy prohibiting

retaliation against an individual for engaging in the type of activity the employee was engaged

in.”

(citing Freas v. Archer Servs., Inc.,

, 1000–02 (D.C. 1998); Carl,

). Second, “termination for reporting illegal conduct when the employee points to ‘specific

laws or regulations that clearly reflect a policy prohibiting the activity about which the employee

complained, whether or not the employer actually violated the law or regulation.’”

(quoting

Leyden v. Am. Accreditation Healthcare Comm’n,

(D.D.C. 2015)).

In her complaint, Ms. Perkins identified three criminal statutes implicated by Mr. Shaw’s

actions: assault and threatened assault (

(a)(1)), affray (

-

1301), and threatened kidnapping or threatened injury to another or their property (

). See Compl. ¶ 44, ECF No. 1. She also relied on a statute that criminalizes

obstructing or interfering with the report of a criminal offense to a law enforcement agency

through force or intimidation (

).

In denying the motion to dismiss, the

Court suggested, without definitively deciding, that (1) Ms. Perkins’s termination could be

plausibly be characterized as a form of intimidation intended to prevent her from alerting the

police and (2) her reporting of potential criminal activity (i.e., Mr. Shaw’s alleged threats) to HR

and the police implicates a clear public policy embodied in at least some 2 of those general

criminal statutes. Perkins I,

at *7. Specifically, the Court noted that D.C.

code criminalizes “threatened assault or injury to another, which is essentially what she alleges

Shaw did during the June 15, 2017 meeting.” Id. at * 6; see also

(making

it a crime to “threaten[] . . . to kidnap any person or to injure the person of another”); D.C. Code

2 The Court was not “entirely convinced that affray is applicable to the facts of Perkins’s complaint.” Perkins I,

, at *6 n.3.

7 § 22-404(a)(1) (making it a crime to “unlawfully assault[], or threaten[] another in a menacing

manner”).

Rather than relitigating these issues directly, Defendants now press a slightly different

argument. They suggest that the four statutes that Ms. Perkins invokes cannot serve as the basis

for the public policy exception because none mandates a particular “standard of conduct for

Defendants as employers.” Defs.’ MSJ at 23. On their view, it seems as though “generalized

criminal statutes” can never serve as the basis for the public policy exception. Id. at 25 (arguing

that “at best, the statutes Plaintiff relies upon amount to considerations for police and

prosecutors in bringing general criminal charges, and notifications that there are criminal

consequences to kidnapping an individual or inflicting serious injury to another”). For this

proposition, Defendants rely on a close reading of Herron v. Fannie Mae,

(D.C.

Cir. 2017). But the Court does not read Herron as articulating such a rule. That case involved

an employee who was fired after alleging improper management of a federal mortgage assistance

program by her employer, Fannie Mae. See

at 165–66. The Circuit found that source of

public policy relied upon by the plaintiff in that case—certain broad provisions of the Emergency

Economic Stabilization Act of 2008 (“EESA”) that identified “public policy interests in

preventing foreclosures and protecting taxpayers’ interests”—“neither ‘set out a standard of

conduct’ for Fannie Mae nor ‘embody a specific public policy prohibiting [an employer] from

engaging in the conduct [the employee] alleges.”

at 171 (quoting Leyden,

) (alterations in original). In this Court’s reading, however, the language from Herron and

Leyden does not articulate a requirement that a particular public policy must somehow be

employer-specific or address employers qua employers. Rather, the language is one of many

glosses identifying when the exception can come into play. As Herron indicates elsewhere, the

8 more general “‘common denominator’ found in all of the cases applying the public exception” is

“‘the existence of specific laws or regulations that clearly reflect a policy prohibiting the activity

about which the employee complained.”

at 170 (quoting Leyden,

).

Herron is more plausibly read as determining that “the general purpose of the [EESA] statute

and the goals the Secretary [of the Treasury] must consider in exercising his statutory authority”

were too amorphous to serve as sources of a public policy exception. Id. at 171; see also id.

(noting that “courts are prohibited from creating new exceptions by ‘broaden[ing] the policies

expressed’ in a statute or ‘fill[ing] in a perceived gap in the statute’” (quoting Carl,

n.9, 162–63 (Terry, J., concurring) 3 (alterations in original))). Here, in contrast, Ms. Perkins

is not pointing to some general statements of policy or broad statutory exhortations; rather, she

has identified specific criminal statutes that are directly implicated by Mr. Shaw’s alleged

threats. In other words, the District of Columbia laws criminalizing threatened assault and

threatened injury (at a minimum) “clearly reflect a policy prohibiting the activity about which the

employee complained.” Herron,

(quoting Leyden,

).

Defendants’ fallback argument appears to be that Mr. Shaw’s alleged conduct was not

actually a violation of any of those cited criminal statutes. For example, as to § 22-404(a)(1),

Defendants point out that Mr. Shaw did not physically assault anyone; he “used no ‘force

causing injury to another,’ nor did he ever ‘attempt to cause injury’ to himself, Mr. Davies, or

any other individual.” Defs.’ MSJ at 30. Additionally, as Defendants point out, “Plaintiff does

not contend that the alleged victim [of the assault], Mr. Davies, was even present at the June 15,

2017 meeting,” so he could not have directly perceived Mr. Shaw’s words as a threat. Id.

3 As this Circuit has recognized, “Judge Terry’s concurrence in Carl ‘constitutes the effective holding of the en banc court.’” Herron v. Fannie Mae,

, 170 n.1 (D.C. Cir. 2017) (quoting Rosella v. Long Rap, Inc.,

, 778 n.3 (D.C. 2015)).

9 Likewise, with respect to § 22-1810, “Plaintiff reported no workplace kidnapping.” Id. at 28.

However, the Court is not convinced. First, Defendants do not address how Mr. Shaw’s alleged

statement did not fully constitute a “threat[] . . . to injure the person of another.”

. Second, it is not clear that Ms. Perkins is required to have observed every element of

the relevant crime in order to invoke the exception. To be sure, “conclusory assertions and

beliefs regarding the illegality” of the conduct at issue are insufficient. Bereston v. UHS of

Delaware, Inc.,

(D.C. 2018). But ultimately, Ms. Perkins’s burden is merely to

point to “the existence of specific laws or regulations that clearly reflect a policy prohibiting the

activity about which the employee complained, whether or not the employer actually violated the

law or regulation.” Leyden,

(emphasis added). In short, then, because the

Court finds that both

and D. C. Code § 22-404(a)(1) represent “some

identifiable policy that has been ‘officially declared’ in a statute,” Plaintiff has met her burden on

this score. Clay,

(quoting Leyden, 83 F. Supp 3d at 249).

Ultimately, in the Court’s view, the required analysis is relatively straightforward. The

Court must view the facts in the light most favorable to the plaintiff. That means discounting the

possibility that Ms. Perkins heard an ill-considered, fatalistic joke, and crediting Ms. Perkins’s

testimony that she observed and reported a credible threat of violence to Human Resources.

Then, the narrow question is whether D.C. law has specifically 4 articulated a disapproval of

4 Clay is perhaps the most helpful case for Defendants, because it declined to find a sufficiently specific public policy in “laws which criminalize fraud.” See 128 F. Supp. at 29 (reasoning that “the general public policy against fraud is not nearly as specific as the policies at issue in other viable wrongful discharge claims”). But Clay is persuasive authority only, and it does not clearly explain why a law criminalizing fraud would be too general, while a law criminalizing bribery, like the one at issue in Fingerhut v. Children’s Nat’l Med. Ctr.,

, 803–04 (D.C. 1999), would not. See

at 27–29. In any case, the criminal prohibitions at issue here—criminalizing threatened assault and injury—are arguably more specific than general

10 threatened violence. The answer, clearly, is yes. 5 As a result, under Carl and its progeny, an

employer should not be permitted to fire an employee for reporting or complaining about a threat

of violence. Cf. Washington v. Guest Services, Inc.,

(D.C. 1998) (case

permitted to proceed where “Ms. Washington has alleged, under oath, that she was discharged

for . . . protesting an alleged unsafe and unlawful practice.”). 6

B. “Close Fit”

Defendants also argue that, “[e]ven if Plaintiff had engaged in protected activity (which

she clearly did not), still there is no ‘close fit between the policy . . . declared and the conduct at

issue in the allegedly wrongful termination.’” Defs.’ MSJ at 31 (quoting Carl,

,

(Terry, J., concurring)). As Defendants recognized, the question here is one of causation. See

Stevens v. Sodexo, Inc.,

(D.D.C. 2012) (“Courts in this Circuit,

interpreting the DCCA’s decision in Carl, have required not only that a plaintiff clearly articulate

fraud statutes, which could apply to a broad range of conduct. Additionally, Clay also seemed to distinguish cases where, as here, “matters of human safety were at stake.” Id. at 28. 5 Because the assault and threat statutes provide the necessary clear statements of public policy needed to overcome the Defendants’ motion for summary judgment, the Court declines to decide whether the affray statute or the statute prohibiting interference with the reporting of crimes represent additional sources of public policy. 6 Some courts in this Circuit have articulated an additional requirement, determining that the public policy exception to the at-will doctrine “must arise from a statute or regulation that does not provide its own remedy.’” Stevens v. Sodexo, Inc.,

(D.D.C. 2012) (citing Carson v. Sim,

(D.D.C. 2011)). On this view, a criminal statute—which obviously has its own method of state-sponsored enforcement—might not qualify as a source of a public policy exception. But Defendants did not raise this argument, and it seems to be more properly implicated when there is a specific whistleblower or anti-retaliation statute that already provides a potential plaintiff with protection. See Carter v. District of Columbia,

(D.C. 2009) (“Thus, this is not a case where we have any need to create a new exception to the at-will employment doctrine in order to vindicate an important public policy. The Council squarely addressed the issue itself, articulating an express public policy in favor of government employee whistleblowing and creating a specific, statutory cause of action to enforce it.”). Here, Ms. Perkins cannot and does not claim a benefit from any such protective scheme; her only source of protection is the public policy exception.

11 the applicable public policy, but also show a causal connection between protected activity in

which that plaintiff engaged and his or her termination.”) (citations omitted). Courts usually

focus on whether the employer provided alternative, non-pretextual justifications for termination.

See, e.g., Robinson v. Securitas Servs., Inc.,

, 20–21 (D.D.C. 2011) (finding

no causal link based on evidence that employee was fired for deficient performance); Brathwaite

v. Vance Federal Sec. Servs., Inc.,

(D.D.C. 2009) (finding no causal link

based on evidence that employee was fired for instigating a fight with another employee).

However, questions of motive, intent, and pretext often hinge on credibility determinations by

the finder of fact. See Owens v. Nat’l Med. Care, Inc.,

(D.D.C. 2004)

(“[E]ven if there is a plausible legal reason for the plaintiff’s termination, the jury, after

reviewing the evidence and making the necessary credibility determinations, [can] still conclude

that the sole reason for his termination was because of the alleged protected activity”).

Defendants maintain that “as of August 21, 2017, WCS Construction reasonably thought

that Plaintiff was not going to be satisfied in any position or role, despite their efforts to appease

her, and lawfully ended her at-will employment.” Defs.’ MSJ at 32. Characterizing the record

somewhat, they argue that Ms. Perkins “walked out of meetings with executives, indicated she

was having difficulty working with several different employees at her small 75-person employer,

and continued to voice her dissatisfaction with her job, her employer, and everyday ordinary

workplace occurrences.”

Beyond these instances, Defendants do not point to any

deficiencies in performance or clear instances of misconduct. If anything, insofar as they rest on

generalized notions of “dissatisfaction” and “difficulty working” with others, Defendants’

proffered reasons for firing are consistent with Ms. Perkins’s theory that she was fired for

causing trouble and drawing attention to her uncomfortable interactions with Mr. Shaw. At its

12 core, Defendants’ argument seems to suggest that she was terminated not for reporting Mr.

Shaw, but for not dropping the matter and for complaining about fallout she felt she experienced

as a result. That is a nuance best left for a jury to decide.

For her part, Ms. Perkins points to a variety of direct and circumstantial evidence

suggesting that she was fired for complaining about Mr. Shaw’s alleged threat. During the

meeting at which she was fired, she directly asked Mr. Vossler and Mr. Kessler: “And this is in

direct relation to my reporting of Chris Shaw. And then the retaliation of him and every

encounter we had after my reporting.” Pl.’s Opp’n Ex. II at 10:8–11, ECF No. 20-35. One of

the two answered: “How could I say no?” Id. at 10:12. A reasonable fact finder could interpret

this as nearly a direct admission, and Defendants do not address or contextualize this exchange in

their reply. Additionally, the temporal proximity between her report of the June 15 incident and

her firing on August 22 is suggestive. See Owens,

(denying defendant’s

motion for summary judgment on a wrongful discharge claim “since the facts demonstrate that

the ‘employer had knowledge of the employee’s protected activity and that the adverse personnel

action took place shortly after that activity’”) (quoting Mitchell v. Baldrige,

(D.C. Cir. 1985)). These considerations alone render the Court unable to grant summary

judgment for the Defendants. A jury deserves to hear evidence from both sides and decide

whose version of events is more credible.

V. CONCLUSION

For the foregoing reasons, Defendants’ motion for summary judgment is denied. An

order consistent with this Memorandum Opinion is separately and contemporaneously issued.

Dated: June 12, 2020 RUDOLPH CONTRERAS United States District Judge

13