In Ishakwue v. Dist. of Columbia, No. 20-CV-14 (D.C. 2022), the appellant was a nurse who worked with at-risk youth. The nurse saw two patients with suspected active tuberculosis (“TB”). She reported the suspected TB cases to her superior. In the appellant’s professional opinion, the suspected TB cases were not treated according to medical standard practice.

Approximately one month following the appellant’s visit with the second suspected TB patient, the appellant was terminated from her position. She was not given any reason for the termination. After her termination, she filed a complaint with the D.C. Office of the Inspector General raising numerous issues regarding the medical and nursing practices of the District of Columbia Department of Youth Rehabilitation Services (“DYRS”). The appellant sued the District of Columbia (“District”), alleging that the District's employees at the DYRS had terminated her employment in violation of the Whistleblower Protection Act (“WPA”) because she had disclosed to DYRS supervisors and managers information regarding the suspected TB patients that she reasonably believed evidenced substantial danger to public health and safety.

At trial, the jury found that none of the appellant’s disclosures were protected and therefore found in favor of the District.

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Arguments on appeal

The appellant appealed, arguing that she was entitled to judgment as a matter of law because: (1) the jury could not rationally have found that her TB disclosures were unprotected by the WPA; and, (2) the evidence at trial simply would not have permitted a reasonable jury to find against her on contributing factor, or in favor of the District on an affirmative defense.

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Definition of a “protected disclosure” under the WPA

The D.C. Court of Appeals explained that a “protected disclosure” is any disclosure of information to any person by an employee that the employee reasonably believes evidences, among other things, substantial and specific danger to public health and safety (at 20).

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It was reasonable for the jury to find that the two claimed disclosures were not “protected disclosures” under the WPA

The appellant challenged the jury's verdict on the two allegedly protected TB disclosures to her DYRS superiors: the first in December 2015 regarding the DYRS’ responses to the youth who reported coughing blood ("the first TB disclosure"), and the second concerning the DYRS response in early January 2016 regarding a youth with a 12 millimeter PPD reading ("the second TB disclosure").

These two disclosures allegedly reflected the appellant's reasonable belief in good faith that DYRS had failed to test and isolate patients with classic symptoms of TB before returning them to crowded residential facilities pursuant to established DYRS policy. The appellant argued that, as a matter of law, the jury could not rationally have found that these disclosures were not "protected.”.

With respect to the first disclosure, the D.C. Court of Appeals noted that: 

1. Active TB is rare in otherwise healthy young people.
2. Latent TB is not contagious and is not a risk to public health.
3. The evidence was unclear that the appellant had a "sincere and objectively reasonable" belief that a "substantial and specific danger to public health and safety at the time the whistle was blown.

Thus, the D.C. Court of Appeals concluded that there was ample record evidence to support the jury's verdict that the first disclosure was not protected.

With respect to the second disclosure, the Court noted that the appellant’s evidence did not conclusively establish a "positive" PPD reading indicating either active or latent TB. Therefore, the Court found that it was possible that a reasonable juror, viewing the evidence in the light most favorable to the prevailing party, could have reached the verdict in the District's favor.

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Disposition

The D.C. Court of Appeals affirmed the trial court's order denying the appellant's motion to set aside the jury’s verdict.