Winder v. Erste

• Decision Date: 15 May 2009
• Docket Number: No. 08-7068.,08-7068.
• Citation: 566 F.3d 209
• Parties: Alfred WINDER, Appellant v. Louis ERSTE, individually, and as Chief Operating Officer of the Division of Transportation, District of Columbia Public Schools, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

566 F.3d 209

Alfred WINDER, Appellant v. Louis ERSTE, individually, and as Chief Operating Officer of the Division of Transportation, District of Columbia Public Schools, et al., Appellees.

No. 08-7068.

United States Court of Appeals, District of Columbia Circuit.

Argued February 6, 2009.

Decided May 15, 2009.

Appeal from the United States District Court for the District of Columbia (No. 1:03-cv-02623).

John F. Karl Jr. argued the cause and filed the briefs for appellant.

Richard S. Love, Senior Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for appellees. With him on the brief were Peter J. Nickles, Attorney General, Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General.

Before: HENDERSON, BROWN, and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge:

Alfred Winder managed the transportation division of the District of Columbia Public Schools (DCPS) from 1999 until he was fired in 2003. He brought suit against the District of Columbia, DCPS, and several DCPS officials, claiming, among other things, that his firing not only was a breach of contract but also violated his constitutional and statutory rights to report supervisors' misconduct without fear of retaliation. The district court ruled against Winder on every contested issue. We affirm its decision, with one exception. Because there is a genuine issue whether Winder was an at-will employee who served at the pleasure of his employer or had a contractually protected term of employment, we reverse the grant of summary judgment against his claims of premature termination and violation of procedural due process.

I.

A.

In 1999, DCPS hired Winder as General Manager of its transportation division. Winder was responsible for the management, administration, and operation of transportation services for special education students. His duties primarily consisted of helping DCPS comply with court orders issued in Petties v. District of Columbia, No. 95-0148 (D.D.C.), a class action brought by parents of special education students frustrated with the District's failure to provide their children with adequate transportation. The Petties orders mandated specific standards and procedures for DCPS's transportation of special education students. The court appointed a Special Master and a Transportation Administrator to oversee implementation of the orders. Winder's job included regular communication with these officials.

From 1999 to 2002, Winder was employed under a series of one-year contracts. In a 2002 reorganization, DCPS abolished the positions of all its managers and created new managerial jobs. Managers who wanted to stay with DCPS had to apply for these jobs. DCPS posted a vacancy announcement for the "new" job of General Manager of the transportation division (which had the same duties and responsibilities as the position Winder had held). The announcement described the position as "Senior Executive" and stated that "Appointees to this position serve at the pleasure of the appointing authority." Supp.App. at 1. Winder applied for and received the job. A letter summarizing the terms of his employment stated that it would commence on July 22, 2002, and that "[t]he tenure of this contract is one year from the commencement date." Letter from Louis J. Erste, Chief Operating Officer, D.C. Pub. Sch. Transp. Div., to Alfred Winder, Gen. Manager of Transp., D.C. Pub. Sch. (July 17, 2002). The letter also explained that Winder was entitled to a range of benefits, including an employer-paid pension plan as well as sick and annual leave.

Despite the contract's one-year term, DCPS terminated Winder on April 3, 2003. His firing followed years of tension between Winder and his supervisors, stemming from Winder's belief that they were resisting or interfering with efforts to comply with the Petties orders. Tensions peaked during Winder's 2002-2003 contract term. First, in late 2002, Winder placed nearly fifty phone calls to the Special Master reporting problems with his supervisors. According to Winder, they began to retaliate against him as a result. They pressured him to resign, encouraged parents and school board members to file complaints against him, and falsely told his staff that he planned to resign.

The hostilities escalated after December 2002, when DCPS bus drivers walked off the job to protest a new policy that deprived them of earned benefits. Two of Winder's supervisors, Louis Erste and Kennedy Khabo, testified about the driver walkout at a January 2003 meeting of the D.C. Council Committee on Education, Libraries, and Recreation. Winder attended the meeting but did not sit with his supervisors at the witness table. When Erste and Khabo failed to provide answers to the satisfaction of a councilman, he summoned Winder to the table. According to Winder, Erste was angered by the answers he gave and expressed hostility toward him after the meeting.

The next month, Winder filed a complaint with the D.C. Inspector General against Erste and Khabo. The complaint recited the difficulties Winder was experiencing in carrying out his job duties because of them. It also charged both with filing false affidavits in the Petties litigation, blocking compliance with court orders, and harassing Winder and others.

Winder left work for an extended, pre-approved medical leave in March 2003. During this leave he received a letter from DCPS telling him he was being discharged. Although he has since found new employment, Winder alleges that his former supervisors made it hard for him to do so. For example, when Winder asked a friend in the D.C. government about an open transportation position, he was told that Deputy Mayor Herb Tillery considered him "persona non grata" based on information from DCPS officials.

B.

Winder filed this action in the district court in December 2003, asserting constitutional, statutory, and common law claims. The district court resolved almost all of these claims in favor of the defendants.¹ We discuss only those claims relevant to this appeal.

In a March 2005 order, the court dismissed several of Winder's claims under FED.R.CIV.P. 12(b)(6) for failure to state a claim. The court dismissed Winder's common-law tort claims for unliquidated damages and his claims under the D.C. Whistleblower Act because he failed to provide the pre-suit notice required by statute. The court also dismissed Winder's other common-law tort claims and his breach of contract claims, holding that they were preempted by the D.C. Comprehensive Merit Personnel Act (CMPA), which governs grievances of District employees. Winder sought reconsideration of the dismissal of his breach of contract claims. For the first time, Winder informed the court that he had already pursued relief under the CMPA. In December 2004, the District agency charged with enforcing that statute held that it lacked jurisdiction over his claims. The court therefore reinstated the claims that it had earlier held were preempted by the CMPA. It did not reinstate the preempted tort claims because Winder failed to seek their reconsideration.

In September 2007, the court granted summary judgment in favor of the District and several individual defendants on Winder's First Amendment claims. It held that under Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), Winder's speech was not protected because he spoke pursuant to his official duties when he complained to DCPS officials, reported problems to the Petties Special Master, testified before the D.C. Council, and filed a complaint with the D.C. Inspector General. The court also granted summary judgment against Winder's claims that the defendants breached his written contract and violated his procedural due process rights when they fired him before the end of his one-year term. The court found that Winder was a member of the Executive Service and thus, under D.C. law, an at-will employee who served at the pleasure of the mayor.

The district court issued its final ruling on May 20, 2008, disposing of Winder's claims that the District breached his contract by denying him certain benefits. As to unpaid compensatory time, the court held that the 2002 contract did not provide for such payment, that regulations requiring payment did not apply to Winder, that an alleged pre-contract promise by a former supervisor was not incorporated into the contract, and that Winder had not pleaded breach of any pre-2002 contract. As to pension benefits, the court held that Winder had not met the minimum vesting period under D.C. regulations and federal law.

II.

On appeal, Winder challenges the district court's Rule 12(b)(6) dismissal of his D.C. Whistleblower Act claims and its summary judgment rulings against his First Amendment claim, his breach of contract claims, and his procedural due process claim. We review these dispositions de novo. See Gilvin v. Fire, 259 F.3d 749, 756 (D.C.Cir.2001). A court may dismiss under Rule 12(b)(6) if, accepting the allegations in the complaint as true, the plaintiff has nonetheless failed to state plausible grounds for relief. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007). Summary judgment is appropriate if, drawing all reasonable inferences in the nonmovant's favor, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Gilvin, 259 F.3d at 756.

A.

We first address the dismissal of Winder's D.C. Whistleblower Act claims for lack of pre-suit notice. The Act provides that supervisors of District employees "shall not threaten to take or take a prohibited personnel action or otherwise retaliate against an employee because of the employee's protected disclosure." D.C.CODE § 1-615.53 (2006). Aggrieved employees may bring a civil action seeking reinstatement, back pay, restoration of...