Todd D. Zirkle v. D.C., et al.
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Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press. DISTRICT OF COLUMBIA COURT OF APPEALS No. 02-CV-310 T ODD D. Z IRKLE, A PPELLANT v. D ISTRICT OF C OLUMBIA , et al., A PPELLEES Appeal from the Superior Court of the District of C olumbia (CA-6959-01) (Hon. Herbert B. Dixon, Jr., Trial Judge) (Argued March 4, 2003 Decided August 28, 2003) Scott A. M ills for appellan t. Mary E. Pivec, with whom Robe rt A. De Berar dinis, Jr., Assistant Corporation Coun sel, was on the b rief, for ap pellees. Charles L. Reischel, Deputy Corporation Counsel at the time the brief was filed, also entered an appearance for appellees. Before TERRY, R EID, and G LICKMAN, Associate Judges. T ERRY, Associate Judge: Todd Z irkle appeals from the denial of his motion for a preliminary injunction. In that motion , appellant so ught to prev ent his employer, the District of Columbia Office of Tax and Revenue ( OTR ), from 2 terminating his emplo yment p ending the outcom e of his suit bro ught under the District of Columbia Whistleblower Protection Act, D.C. Code §§ 1-615.51 et seq. (2001) ( WP A ). 1 We affirm the trial cou rt s denial of injunctive relief. I From February 2, 1998, to September 5, 2001, appellant was employed as the Supervisor of Major Property Tax Assessments in OTR, an agency within the Office of the Chief Financial Officer of the District of Columbia. Thomas Branham, after serving as th e Chief A ssessor for a p eriod of time, became the Chief of Real Property Tax Assessments in OTR on August 1, 2001, and as such he became appellant s immediate supervisor. Above Mr. Branham was Henry Riley, the Director of the Rea l Property T ax and A ssessmen ts Division. Mr. Riley in turn reported to Herbert Huff, the Deputy Chief Financial Officer ( DCFO ). As DCFO, Mr. Huff was in charge of all personnel involved in the taxing function of OTR. 1 Appellant filed suit against the District of Columbia, OTR, and his supervisor, Thom as W. B ranham . Howe ver, OTR is not sui juris and therefore cannot be sued in its ow n nam e. See Simmons v. District of Columbia Armory Board, 656 A.2d 1155, 1156 (D.C. 1995) ; Braxton v. National Capital Housing Authority , 396 A.2d 215 , 216 (D.C. 1978 ). 3 As Supervisor of the Major Properties Section, appellant was responsible for (1) directing the work of five assessors in connection with the annual appraisal process for major properties i.e., those valued in excess of $2 million located principally in downtown Washington; (2) overseeing the informal first-level appeal process for major property taxpayers (described in detail hereafter); and (3) advocating OTR s position in ta xpayer ap peals befor e the District of Colum bia Board of Real Property Assessments and Appeals ( BRPAA ) and also before the Superior C ourt. A. The Tax Assessment Process Under D.C. Code § 47-820 (a)(3), 2 properties m ust be asses sed on the basis of their estima ted mark et value as of January 1 of the preceding tax ye ar. Estimated market value is defined as 100% of the most probable price at which a particular piece of real property . . . would be expected to transfer under prevailing marking conditions . . . . D.C. Code § 47-802 (4). Once assessments are made, 2 The assessment and taxation of real property in the District are governed by D.C. Code § § 47-801 throug h 47-874 (200 1). All references to the D.C. C ode in this opinion are to the current (2001) edition. 4 there is a three-level appeal process c onsisting of (1) an inform al first-level app eal, 3 (2) an a dmin istrative h earing b efore th e BRP AA, and (3) an appeal to the Superior Court of the District of Columbia. The hearing panel for a first-leve l appeal is usually com prised of thre e to five assessors. Appeals that proceed through the first level may result in an increase in the assessment, a decrease, or no change. By informal practice, a fourth option of withdrawal evolved among the assessors in the Major Properties Section. Under what came to be known as the five o clock rule, a property owner could withdraw a first-level appeal in writing before 5:00 p.m. on the day of the inform al hearing, th ereby avoiding the risk of an increased assessme nt. Following a first-lev el appe al hearin g, a Decision Form was prepared which would set forth each contention by the taxpayer and O TR s response. O nce this form was com pleted, appe llant would review it for edits and judgment revisions. He would then circulate it among the assessors who took part in the hearing, and thereafter, unless there were additional edits proposed, the form would be signed by appellant and each assessor, entered into the Ap peals Tracking System database, and then mailed to the appropriate parties or their representatives. 3 The first-level appe al process was instituted in the District of Columbia for Tax Year 19 99 and is codified at D .C. Code § 47-8 25.01 (f-1) and (f-2). 5 B. Appellant s Termination In February 2001 the Committee on Finance and Revenue of the Council of the District of Columbia held oversight hearings, in which it heard testimony from representatives of the Apartment and Office Building Association of Metropolitan Washington ( AOBA ). AOBA s testimony was very critical of the first-level appeal process. It focused, in particular, on the perceived un fairness of OTR s practice of basing increases on information not considered when determining the initial assessment. This practice, according to AOBA, had a chilling effect on appeals. Soon after this hearing , DCFO Huff and Mr. Bra nham d iscussed w ays to eliminate this perceived unfairness. Months later, on August 15, 20 01, at the direction of DCFO H uff, Mr. Branham approached appellant and expressed the view that increases on first-level appeals resulting from consideratio n of inform ation whic h the assess ors initially missed were not a good idea, and that if the assessors missed the estimated market value in one tax y ear, they sho uld leave it alone and increase it in the following tax year. Appellant disagreed with this philosophy, opining that a greater number of appeals would result because a taxpayer could now bring an appeal without risking an increase. N evertheless, appellant and M r. Branham ag reed that the assessors 6 should be permitted to continue with the first-level appeal process, make their decisions on estimated market value, and then sit down with Mr. Branham to review the evidence that supported the decisions. Just over a week later, on August 23, appellant and Mr. Branham met again, this time to discuss three specific cases for which an increase appeared warranted after a first-level appeal hearing. One of the cases involved a significant assessment increase for a downtown office building. Mr. Branham acknowledged that the building had been underassessed, and that the first-level appe al decision w ould result in an increase in p roperty taxes for that building. He then instructed appellant to contact the attorney who filed the first-level appeal to inform him of the increased assessment, and to offer the attorney an oppo rtunity to with draw the appeal. Appellant testified at the hearing below that he was stunned by this order and, without informing Mr. Branham, decided not to comply with it because he believed it to be illegal. Some time later, appellant and Mr. Branham met again to discuss two other properties one at L Enfant Plaza North and the other at Hamilton Square for which a first-level hearing had also res ulted in increa sed assessm ents. Referrin g to the attorney for the Hamilton Square property, Mr. Branham said to appellant, Why 7 don t you call her? . . . Maybe I ll just call her. In response to Mr. Branh am s call, the attorney sent a withdrawal letter for the Hamilton Square property. Appellant understood that he was supposed to consider the appeal as withdrawn at that point, bu t he testified that h e believed d oing so w ould be illeg al. On September 4, 2001, appellant informed Mr. Branham that he did not comply with the A ugust 23 o rder to call the ta xpayer s re presentative and refrain from issuing an in crease, since he believed that to do so w ould have been illegal. Appell ant also revealed that earlier that day he h ad reported Branh am to the Office of the Inspector General ( OIG ) for the illegal August 23 order and other unethical and/or illegal conduct (apparently referring to Mr. Branham s call to the representative for the Hamilton Square property). Finally, appellant told Mr. Branham that on August 31 he had mailed ou t increase notices to nineteen taxp ayers without discussing their cases with Mr. Branham or getting his approval to mail the notices (as appellant had agreed to do at their August 15 meeting). The trial court found this action to be in knowing v iolation of Branham s directives. Mr. Branham responded, W ell, I ll have to let you go. I thought we co uld work this out, but if yo u wan t to do th ings yo ur way , I ll have to let you go. Later that day, DCFO Huff, Director Riley, and Mr. Branham decided to place appellant on 8 administrative leave, pending his termination, because he had been insubordin ate and had violated a direct order not to issue increases on first-level appeals. C. Proceedings Below On Septem ber 18, 200 1, appellant file d a com plaint in the S uperior C ourt, along with a motion for a temporary restraining order ( TRO ). The complaint alleged a violation of the WPA, and the TRO motion sought to prevent the Chief Financial Officer from exerc ising his at-will authority to terminate app ellant s employ ment. On September 19, after an in camera hearing, the court issued an order temporarily restraining the defendants from terminating appellant for a period of five days. The TRO was later extended pending an evidentiary hearing on appellant s motion for a prelim inary injunction. In due cou rse an evidentiary hearing was held on that motion, and on February 14, 2002, the motion was denied in a written order, accompanied by a twenty-three-page memorandum opinion containing findings of fact and conclusions of law. This appeal followed. 9 II The decision to grant or deny preliminar y injunctive relief is com mitted to the sound discretion of the trial court. Stamen ich v. Ma rkovic, 462 A.2d 452, 456 (D.C. 1983) (citations omitted). A proper exercise of discretion requires the trial court to consider whether the mov ing party has clearly d emons trated: (1) that there is a substantial likelihood that he will prevail on the merits; (2) that he is in danger of suffering irreparable harm during the pendency of the action; (3) that more harm will result to him from the denial of the injunction than will result to the defendant from its grant; and, in appropria te cases, (4) that the public interest will not be disserved by the issuance of the requested order. Wieck v. Sterenbuch, 350 A.2d 384, 387 (D.C . 1976) (footnote om itted).4 4 This universally applied four-part test originated in Virginia Petroleum Jobbers Ass n v. Federal Power Commission, 104 U .S. App. D.C. 106, 110, 259 F.2d 921, 92 5 (195 8). Appellant argues that the test does not apply here because the WPA specifically allows for injunctive relief as a possible remedy. He offers no support for this proposition, however, nor are we aware of any. On the contrary, and by way of example, Minnesota s WPA also provides for injunctive relief as a potential remed y, see Minn. Stat. § 181.93 5 (a) (2002), yet the four-part test of Virginia Petroleum Jobbers is nonetheless applied to motions for prelim inary injunctive relief brought under that statute. See generally Minnesota Ass n of Nurse Anesthetists v. Unity Hospital, 59 F.3d 80 (8th C ir. 1995). 10 When this court reviews the granting or denial of a preliminary injunction, it is not our task to resolve the overall merits of the dispute between the parti es. . . . Rather, our role is confined to (1) examin ing the trial court s findings and conclusions to see if they are sufficiently supported b y the record; (2) assuring that the trial court s ana lysis reflects a res olution of all th e issues w hich nece ssarily underlie the issuance of an injunction; and (3) inquiring into any other claims of an abuse of discretion by the trial court. Id.5 Given our limited scope of review, we hold that the trial court did not abuse its discretion in denying appellant s motion for a preliminary injunction. A. Irreparable Harm In considering whether to issue a preliminary injunction, the most important inquiry is that concerning irreparable injury. 5 Wieck, 350 A.2d at 387. An There is a n arrow ex ception to th is rule, but it is not relevant here. [W]h ere the action of the trial court turns on a question of law or statutory interpretation, we may reach the merits of the controversy. Don t Tear It Down, Inc. v. District of Colum bia, 395 A.2d 388, 391 (D.C. 1978) (citations omitted). In the case at bar, we are not called upon to construe any statute or to determine whether the trial court ruled correctly on a particular point of law. The trial court s ruling was based on the facts presented a t the hearing on appella nt s motion for a prelim inary injunction; that is, the court held that the facts on which appellant based h is claim were insufficient to justify injunctive relief. Such a ruling does not bring this appeal within the exception articulated in Don t Tear It Down and other cases. 11 injunction should not be issued unless the threat of injury is immin ent and w ellfounded, and unless the injury itself would be incapable of being redressed after a final hearing on the merits. Id. at 388 (citation s omitted); see also Sampson v. Murray, 415 U.S. 61, 88 (1974) ( the basis of injunctive relief . . . has always been irreparable harm and inadequacy of lega l remedies (citations om itted)). At the hearing below, the only tangible harm to which appellant could point was the loss of a potential job offer. 6 The trial cou rt rejected app ellant s assertion that this harm was irreparable because econo mic and reputation-typ e injury are insufficient to justify prejudgment equitab le relief. In this the court wa s entirely correct, for it is well estab lished that eco nomic and reputational injuries are generally not irrep arable. A s the United States Court of Appeals has said in the leading case on prelim inary injunctive relief: The key word in this consideration is irrepar able. Mere injuries, however sub stantial, in terms of money, time, and energy necessarily expended in the absence of a stay, are not enough. The pos sibility that adequate compensatory or other corrective relief will be available at a later date, in the 6 Appellant did not establish at the hearing tha t the offer wa s withdrawn because of his termin ation, but on ly that the job w as no long er available once he began searching for alternative employment. Nevertheless, we assume for the sake of argument that the offer was lost as a result of his termination, and therefore a harm . 12 ordinary course of litiga tion, weigh s heavily against a claim or irreparable harm. Virginia Petroleum Jobbers, supra note 4, 104 U.S. App. D.C. at 110, 259 F.2d at 925 (empha sis in original); see also , e.g., District of Columbia v. Group Insurance Admin istration, 633 A.2d 2, 23 (D.C. 1993) ( economic loss does not, in and of itself, constitute irreparable harm, unless the loss threatens the very existence of the movant s business (citations and internal quotatio n marks omitted)); District 50, United Mine Workers v. International Union, United Mine Workers , 134 U.S. App. D.C. 34, 36, 412 F.2d 165, 167 (1969) (embarrassment and inconvenience are not irreparable harm). Should appellant prevail on the merits of his suit, we have no doubt that reinstatem ent with back p ay wo uld certa inly be a n adeq uate rem edy. See Sampson, 415 U.S. at 90 ( the tem porary loss of incom e, ultimately to be recovered, does not usually con stitute irreparable injury ). 7 Appellant relies heavily on Bonds v. Heyman, 950 F. Supp. 120 2 (D.D.C . 1997), in which a preliminary injunction was granted to prevent a federal employee 7 Indeed, this case is remarkably similar to Sampson, in which the Supreme Court overturned the granting of a preliminary injunction on the ground that an employee, who had been fired for her complete unwillingness to follow office procedure and to accept direction from [her] supervisors, 415 U.S. at 65, had failed to show irreparable harm. 13 from being fired pending the outcome of her discrimination suit. Unlike this case, however, Bonds presented a truly extraordinary situation, id. at 1216 , because it was unlikely that the plaintiff, who had w orked for the sam e employer for n early forty years and was nearing retirement age, could ever find work approaching what she now does, if she could find work at all. Id. at 1215. Comparable factors are not present here, and the record reveals no reason to expect that appellant would have difficulty finding work . See Nichols v. Agency for Int l Development, 18 F. Supp. 2d 1, 5 (D .D.C. 199 8) (plaintiff say s nothing a bout . . . how someo ne with his talents will incur difficulty locating emp loyment ). 8 Appellant also argues that even if he w ere to be rehired and made whole financially, his experience would have a chilling effect on other employees in that they would be d issuade d from exercis ing their rights un der the W PA. T his argument is not witho ut some s upport. 9 This court, however, has not yet had 8 Appella nt also cites Bonds for the proposition that the rigid fe deral rules regarding the inadequacy of reputational-type injuries do not apply to actions by state or D istrict of C olum bia age ncies. Bonds, however, said no such thing; on the contrary, the court in Bonds expressly d eclined to decide whether the same standard would apply. See 950 F. Supp. at 1215 n.14. 9 See Arcam uzi v. Continental Air Lines, Inc., 819 F.2d 935, 938 (9th Cir. 1987) ( Damag es and reinstatement w ould not remed y the coercive and inh ibitory effects upon the e mploye es organiz ational rights secured by the [Railway Labor (contin ued...) 14 occasion to decide whether a chilling effect on the exercise of statutory rig hts in the workplace constitutes irreparable harm. We need not do so here either, because appellant has totally failed to show that other employees were, or would be, in fact chilled. On the contrary, appellant s argument is highly spe culative . See National Student Ass n v. Hershey, 134 U.S. App. D.C. 56, 66-67, 412 F.2d 1103, 1113-1114 (1969) ( we are not persuaded that every plaintiff who alleges a First Amendment chilling effect and shivers in court has the reby established a case o r controversy ). At the hearing, appellant put on no evidence whatsoever of a chilling effect, and on appeal he states on ly that [t]he risk that other em ployees may be deterred from providing testimony or from protecting their own rights has been found by other courts to constitute irreparable harm. This statement is completely inadequate to establish irrepara ble harm . See Nichols, 18 F. Supp. 2d at 5 (plaintiff s singlestatement allegation, buttressed by no factual support, cannot support a finding of 9 (...continued) Act]. Such ha rm is irrepara ble. ); Holt v. Continental Group, Inc., 708 F.2d 87, 91 (2d Cir. 1983) ( A retaliatory discharge carries with it the distinct risk that other employees may be deterred from protecting their rights under the [Civil Rights] Act . . . . These risks may be found to constitute irreparable injury. ); Bonds, 950 F. Supp. at 1214-1215 ( a plaintiff who demonstrates that an adverse personnel action is likely to have a chilling effect on other employees wh o . . . would now refuse to file claims for fe ar of reprisals, w ould also m eet Sampson s barrier ); Segar v. Civiletti, 516 F. Supp. 314, 320 (D.D.C . 1981) ( unless Plaintiff is protected now from the adverse action, me mbers o f the class w ill refrain from coming forward w ith their claims. The injury to them will be irreparable. ). 15 irreparable injury based on a putative chilling effect ). Because appellant offered no evidence of a chilling effect on other employees, it is at least equally possible that other employees may very well be emboldened to exercise their rights under the WPA if appellant is u ltimately vin dicated. This is all the more likely because appellant does not allege, and the record does not establish, any history of retaliation by OTR. B. Likelihood of Success To make a prima fac ie showing of a WPA violation, the plaintiff must establish by a preponderance of the evidence that he was the subject of a prohibited personnel action because of his refusal to comply with an illegal order or because he has made a protected disclosure. See D.C. Code § 1-615.53.10 The trial court concluded that appellant s whistleblower claim did not have a substantial likelihood of success, ho lding that (1) the August 23 order given to him by Mr. Branham i.e., to call the taxpayer s representative and offer the chance to withdraw the appeal after it was determined that an increased assessment was warranted was not 10 Prohibited personne l action is defined in D.C. Code § 1-615.52 (5); illegal order is defined in D.C. Code § 1-615.52 (4); protected disclosure is defined in D.C. C ode § 1-615.52 (6 ). 16 illegal, and (2) informing the OIG wa s not a protected disclosure because appellant s belief that the order was illegal was not reasonable. We address each of these points in turn. 1. Legality of the order An illegal order is a directive to violate or to as sist in violating a fed eral, state, or local law , rule, or regulatio n. D.C . Code § 1-615 .52 (4). The trial court ruled that M r. Branham s August 23 directive was not illegal, but merely an exercise of the administrative discretion entrusted to OTR in the proper exercise of its agency function. Before this court appellant stresses that the assessed value of all real property shall be the proposed estimated market value, 9 DC MR § 306.1 (1998) (emphasis added), and that the assessed value must be established on the basis of the most current, accurate, and conclusive evidence of market value available at the time the assessed value is determined. 9 DCMR § 306.2. According to appellant, these regulations do not give OTR any discretion to allow taxpayers to withdraw their appeals after a first-level appeal hearing has determined that an increase is warranted, because d oing so at tha t point wo uld be tanta mount to 17 applying assessments that are no longer based on the most current estimated market value.11 D.C. Code §§ 47-825.0 1 (f-1) and (f-2), which codify the first-level appeal process, are completely s ilent as to how such appeals are to be conducted. Thus OTR s policy in no way contradicts any statutory language. As for the regulations, the DCFO is granted very broad discretion in deciding how to determine a property s estima ted ma rket valu e. See 9 DCMR § 307.2 ( the Deputy Chief Financial Officer may apply, when appropriate, one or more of the generally recognized approaches to valuation . . . or any other method the [DCFO] deems necessary to arrive at estim ated mar ket value ) ; see also Wolf, supra note 11, 611 A.2d at 48. This broad discretion in determining methodology is granted because, as even appellant s expe rt testified, establishing the estimated market value is by no means an exact sc ience. Con sequently, it ca nnot be sa id that the estimated market value arrived at during the first-level appeal hearing is the only possible assessment based on the most current, accurate, and conclusive evidence. On the contrary, we 11 Appellant correctly notes that in Wolf v. District of Colum bia, 611 A.2d 44 (D.C. 1992), we said that the District may take new information, obtained after suit was filed, and revise its estimate of value. Id. at 48. Nothing in that opinion said or implied, how ever, that the D istrict must take into consideration new information obtained a fter the initial asses sment. 18 think it was quite re asonable fo r OTR to conclud e, in light of its exp ertise in this area, that the initial assessment likewise met that requirement. Thus we are satisfied that OTR acted with in its discretion in allowing a taxpayer the option to withdraw the appeal if it appeared, after the first-level hearing, that an increase would be justified.12 2. Reasonableness of the belief A protected disclosure is defined, in relevant part, as any disclosure of informatio n . . . by an employee to a supervisor or a public body that the employee reasonab ly believes evidences . . . [a] violation of a federal, state, or local law, rule, or regulation . . . . D.C. Code § 1-615.52 (6)(D) (emphasis added). Appellant contends that he was fired because he disclosed to the OIG Mr. Branham s August 23 order, as well as Branham s telephone call to the attorney for the Hamilton 12 Appellant argues in the alternative that OTR acted illegally by creating a new rule when it adopted the new policy of no increases after first-level appeals. According to appellant, not only does OTR not have express rulemaking authority, but it did not prom ulgate this ne w rule in ac cordance with the D istrict of Colum bia Administrative Procedu re Act, D.C. Code §§ 2-501 to 2-511. Because appellant d id not make th is argume nt below, w e will not co nsider it on ap peal. See, e.g ., Miller v. Avirom, 127 U.S. App . D.C. 367, 369-37 0, 384 F.2d 319 , 321-322 (1967 ). 19 Square property, both of which he believed were illega l. To determ ine wheth er his belief was reasonable, the proper test is as follows: [C]ould a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee reasonably conclude that the actions of the government evidence [illegality]? A purely subjective perspective of an employee is not sufficient even if shared by other employ ees. The W PA is no t a weapo n in argume nts over policy or a shield for insu bordinate conduct. Lachance v. White, 174 F.3d 137 8, 1381 (Fed. Cir. 199 9).13 This analysis hinges not upon wheth er the or der wa s ultima tely dete rmine d to be ill egal, but whether appellant reason ably be lieved th at it was illegal. See Horton v . Departm ent of the Navy, 66 F.3d 279, 283 (Fed. Cir. 1995). The trial court foun d that appe llant s belief w as not that of a n objective ly reasonab le person, but rather that of a rigid partisan whose beliefs and conduct were being challenged by his superiors. We discern no error in this finding. Because OTR s new policy was, for reasons explained above, so clearly a proper exercise of discretion, we conclude that someone with appellant s background and 13 The term reasonable is not defined in the WPA, and this court has not yet had an opportunity to con sider it in a published opinion . Because the court s definition of reasonable in Lachance was based on the similarly worded fe deral WPA, we adopt that definition here. 20 expertise could not reasonably believe that Mr. B ranham s order, m ade pursu ant to that policy, w as illega l. See Haley v. Department of the Treasury, 977 F.2d 553, 557 (Fed. Cir. 1992) ( The relevant s tatutes c learly gr anted b road di scretion . . . . Petitioner s experience as an Examiner and the clear language of the relevant authorities make Petitioner s claim [of a reasonable belief] untena ble ). The unreasonableness of appellant s belief is compounded by the fact that he never raised any objection to and indeed helped to create OTR s five o clock rule. Appellant tries to distinguish the two policies from each other on the ground that OTR s new policy allows a tax payer to w ithdraw an appeal after learning that an increase appears warranted, whereas under the five o clock rule the taxpayer had to exercise the withdrawal option on the day of the hearing, which of course w ould be before a formal decision had been issued. This is not a meaningful distinction. As we hav e pointed o ut, 9 DCM R § 306 .2 requires as sessmen ts to be made on the basis of the most curre nt, accu rate, and conclu sive ev idence of ma rket valu e. Under the five o clock rule, even though a decision had yet to be rea ched, more recent information was adduced at the hearing, thereby creating a more current and perhaps accurate b ody of information . Thus, if appellant s reasoning w ere followed to its logical conclusion, no withd rawal could be allow ed under either policy. It was inco nsistent, and th erefore un reasonab le, for appellan t to believe that 21 the new OTR policy was illegal, while at the same time endorsing the previous five o clock rule. The trial court was correct w hen it concluded that the five o clock rule on which plaintiff relies is no more than a different policy choice in the exercise of that sa me dis cretion. 3. Contributing factor Even if appellant co uld establish that his belief was objectively reasonable, we would still be unpersuaded that appellant has a substantial likelihood of success on the merits of his WPA suit. The WPA requires an employee to demonstrate by a preponderance of the evidence that an activity proscribed by § 1-615.53 was a contributing factor in the alleged prohibited personnel action against [the] emplo yee. D.C. Code § 1-615.54 (b). The trial court found that appellant s termination did not result from his disclosure to the OIG, but was in respon se to a willful act of insubordination preceded by complaints from the public and administrative officials about plaintiff s unprofessional conduct. The reco rd amply supports this finding. At the hearing below , DCFO H uff testified that he placed appellant on administrative leave after learning of his insubordination because he was at his wits end in dealing with appellant. Mr. Huff stated that on five previous occasions appellant had been counseled for behaving in an intimidating and 22 condescending manner toward members of the BRPAA and taxpayer representatives. Two o f those incide nts are desc ribed in deta il in paragraphs 28 and 29 of the court s findings of fa ct.14 In addition, the evidence showed that appellant admitted to Mr. Branham on August 31 that he had sent out notices to nineteen taxpayers that their assessments were being increased. The trial cou rt found this to be a knowing violation of Mr. Branham s directive on August 15 to which appellant had agreed to confer with him and get his approval before issuing any such notices. Finally, and perhaps more seriously, appellant failed to adhere to O TR s Code of Conduct insofar as it required compliance with the local tax laws. The trial court noted in its findings that in 1994 appellant purchased a house on First Street, N.W. He applied for, and was granted, a homestead exemption which entitled 14 On one of those occasions, appellant had sent a letter to the Chairperson of the BRPA A expre ssing his disa greeme nt with on e of her evid entiary rulings in a pending case. When the ruling remained unchang ed, appellan t sent a letter to someone in the Executive Office of the Mayor, in which he characterized the BRPAA hearing process as a circus and requ ested the M ayor s office to intervene in the case . Again , about a year late r, appellant sent a letter to the Chairperson complaining about her refusal in another case to admit certain evidence, accusing the taxpayer s attorney and an expert witness of fraudulent conduct. The Chairperson replied i n a letter th at she fo und ap pellant s com ments to be, in the word s of the tr ial court , unpro fession al and u nmer ited. 23 him to a reduction in his tax obligation for that property.15 Under the terms of the homestead exemption program, residential taxpayers are entitled to its benefits for only one residen tial property. H oweve r, on Septem ber 28, 200 0, appellant a nd his then-fiancée (who later became his wife) jointly purchased another house on N Street, N.W., for which the previous owner had obtained a homestead exemption. The exem ption fo r that ho use rem ained in effect af ter the sa le, even though appellant and his wife continued to live in the First Street house. It was only when it came to th e attention of an OTR employee in May 2001 that appellant was receiving two exemptions that appellant asked to have the exemption removed from the N Street p roperty. Th is incident resulted in appellant s being investigated by the Internal Audit U nit at OTR, an investigation which b ecame the sub ject of a Washington Post article in August 2001 that caused great embarrassment to OTR.16 15 16 See D.C. Code § 47-850. Appellant testified that he was unaware he was receiving two homestead exemptions, even though he had access to computerized information regarding the tax status of all residential properties in the District of Columbia, and even though he had received a tax bill in 2001 (which he paid with his own check) indicating that the N Street property had been granted an exemption. The trial court found that appellant s testimony on this point was not credible. 24 A few da ys later, M r. Huff sent a memo randum to all O TR man agers alluding to this incident and reminding all managers to set an example of excellence in regard to meeting their tax obligations. The next day appellant confronted Mr. Huff in his office about the memorandum. The court in its findings described the confrontation: Huff testified that [appellant] pointed his finger in H uff s face and exclaimed: Don t you know what you are doing? I know what you are trying to do. You have embarrassed me. Don t you know what s going on in this agency? H uff testified that he felt threa tened and intimidated by [appellant s] c onduct. The record thus fully supports the trial cou rt s finding that Mr. Branha m s decision to place appellant on administrative leave, pending his termination, was a proper exercise of legitimate supervisory authority over an employee for cumulative acts of poor judgment that reached the stage of willful insubordination. The court concluded, and we agree, that appellant failed to prove by a preponderance of the evidence that he was entitled to a preliminary injunction.17 17 Because appellant did not meet the first two requirements for a p reliminary injunction (irreparable harm and likelihood of success), we need not address the other two in any detail. We no te, howev er, that the trial cou rt quite prope rly considered all four. With respect to the balancing of the parties interests, the court said that appellant failed to demonstrate that more harm would result to him from a denial of the injunction than would result to defendants from its grant. The restoration of a willfully in subordina te emplo yee to his former work unit would be (contin ued...) 25 III Appellant has failed to estab lish that he is like ly to suffer irrepa rable harm if a preliminar y injunction is not granted. On this point we find no material difference between this case and the Supreme C ourt case of Sampson v. Murray, and according ly we follow Sampson. We also hold, for the reasons stated in pa rt II-B of this opinion, that appellant has not shown that he is likely to succeed in his litigation based on the Whistleblower Act. The order denying his motion for a prelimina ry injunction is therefore Affirmed. 17 (...continued) counterproductive to an effectiv e emplo yment e nvironment. With respect to the public interest, the court said that appellant failed to demonstrate that the public interest would not be disserved by the issuance of the requested order. Maximization of real estate tax assessments is not the only public interest. The public is also entitled to assurances that tax assessments and collections are pursued fairly and professionally. We see no reason to quarrel with either of these rulings.
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