Willoughby v. Potomac Elec. Power Co., 96-7001

• Decision Date: 26 November 1996
• Docket Number: No. 96-7001,96-7001
• Citation: 100 F.3d 999
• Parties: Page 999 100 F.3d 999 Theodore Robert Willoughby, Appellant v. Potomac Electric Power Company, Appellee United States Court of Appeals District of Columbia Circuit
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 999

100 F.3d 999

Theodore Robert Willoughby, Appellant v Potomac Electric Power Company, Appellee

No. 96-7001

United States Court of Appeals

District of Columbia Circuit

Argued October 21, 1996

Decided November 26, 1996

Appeal from the United States District Court for the District of Columbia (No. 94cv01313) Paul Victor Jorgensen, Middletown, MD, argued the cause for the appellant. Matthew Charles Leefer, Boonsboro, MD, was on brief.

William P. Flanagan argued the cause for the appellee. Patricia R. Ambrose, Washington, DC, was on brief.

Before: Williams, Henderson and Randolph, Circuit Judges.

Opinion for the court filed by Circuit Judge Henderson.

Karen LeCraft Henderson, Circuit Judge:

Theodore R. Willoughby (Willoughby) appeals the district court's grant of summary judgment to his former employer, the Potomac Electric Power Company (PEPCO), on Willoughby's claims that he was fired in violation of both his employment contract and the terms of a consent decree in a class action suit brought by certain PEPCO employees against PEPCO. He also appeals the district court's stay of discovery and its refusal to allow him to add two claims to his complaint. We affirm.

I. BACKGROUND

From 1986 until his firing in 1993, Willoughby was a supervisor in PEPCO's drafting department. He had no written employment contract. In September and October 1992, two of his subordinates alleged that Willoughby, a white male, made inflammatory racist and sexist remarks to them. He denies the charge.

Also from 1986 to 1993, PEPCO was defending a class action suit brought by named and unnamed PEPCO employees and applicants who claimed they had suffered racial and sexual discrimination (class action plaintiffs). The subordinates who complained of Willoughby's alleged remarks were named plaintiffs in the suit. The suit ended in a consent decree entered into by PEPCO and the class action plaintiffs that committed PEPCO to, among other things, changes in its personnel policies, establishment of a settlement fund and implementation of a procedure by which the named plaintiffs could request corrective personnel actions. Consent Decree at 13-34, 35-42, 42-46, In re PEPCO Employment Litigation (D.D.C. 1993) (No. CA 86-0603), reprinted at JA 69-90, 91-98, 98-102. The consent decree also released PEPCO and its officers and employees from any of the class action plaintiffs' claims related to the litigation. Id. at 9-11, reprinted at JA 65-67.

Willoughby was fired on June 4, 1993, shortly before the consent decree went into effect. According to PEPCO, his firing was based on race and sex discrimination complaints made by his subordinates.

II. DISCUSSION

A. Breach of Contract

Willoughby argues that the district court erred when it granted summary judgment to PEPCO on his claim that he was terminated in violation of an employment contract that allowed termination only for cause. We review the grant of summary judgment de novo. Choate v. TRW, Inc., 14 F.3d 74, 77 (D.C. Cir.), cert. denied, 114 S. Ct. 2710 (1994).

In the District of Columbia, whose law we apply in this action brought under our diversity jurisdiction, the employment relationship is presumed to be terminable at will by either employer or employee. See Sullivan v. Heritage Found., 399 A.2d 856, 860 (D.C. 1979). Attempting to rebut this presumption, Willoughby directs our attention to an oral promise PEPCO's chief draftsman allegedly made at the time of Willoughby's 1986 promotion and to a provision in the 1982 version of PEPCO's affirmative action plan. Regarding the promise,¹ this court has held that a mere promise of permanent employment is insufficient to rebut the presumption of at will employment. See Minihan v. American Pharm. Ass'n, 812 F.2d 726, 728 (D.C. Cir. 1987) (employer's statements indicating that employee had long-term or "permanent" employment do not rebut presumption of at will employment); see also Jankins v. TDC Management Corp., 21 F.3d 436, 443 (D.C. Cir. 1994) (same); Choate, 14 F.3d at 77 (same).

As to the provision in the affirmative action plan, District of Columbia case law does reflect that in some limited circumstances an unambiguous, uncaveated statement in a personnel manual may rebut the presumption of at will employment. See, e.g., Nickens v. Labor Agency of Metro. Wash., 600 A.2d 813, 817 (D.C. 1991); Law v. Howard Univ., 558 A.2d 355, 356 n.1 (D.C. 1989); Washington Welfare Ass'n v. Wheeler, 496 A.2d 613, 616 (D.C. 1985). Relying on this line of cases, Willoughby points to PEPCO's statement in the 1982 version of its affirmative action plan that "[e]mployees shall not be discharged unless for just cause." JA 266. Even assuming that the 1982 version of the affirmative action plan was promulgated in a manner that could have affected Willoughby's employment status,² PEPCO's subsequent revision of the plan undermines his claim.

In 1990, PEPCO revised its affirmative action plan, deleting the just cause provision. Instead, the relevant provision states only that "[e]mployees shall not be discharged for unlawful discriminatory reasons." JA 483. Subsequent revisions, including the 1993 revision in effect at the time of Willoughby's firing, contain the same language. JA 491. That PEPCO can and did make unilateral changes to its affirmative action plan suggests that the plan did not confer contractual rights on PEPCO employees. See, e.g., Shankle v. DRG Fin. Corp., 729 F. Supp. 122, 124 (D.D.C. 1989) (finding that employer's ability to amend personnel manual undermines claim that manual confers contractual rights). More to the point, the revisions eliminate the very language upon which Willoughby's argument depends.

Willoughby does not contend that PEPCO lacked the power unilaterally to revise its affirmative action plan. Instead, he argues that it was error for the district court to rely on the revised version because it was not accompanied by an affidavit or some other indicia of authenticity and because PEPCO provided only brief excerpts. Regarding the latter point, PEPCO appears to have given Willoughby complete copies of all of the revisions during discovery. Defendant's Reply in Support of Motion for Summary Judgment, and Reply in Support of Motion for Stay of Further Discovery at 13, Willoughby v. Potomac Elec. Power Co. (D.D.C. 1995) (No. CA 94-1313). More important, if Willoughby believed the excerpts suffered from some evidentiary flaw, he could (and should) have objected during the fifteen-month period between September 1994, when PEPCO attached a copy to its reply brief, and the district court's grant of summary judgment in December 1995.³ See Passaic Daily News v. NLRB, 736 F.2d 1543, 1554 n.15 (D.C. Cir. 1984) ("It is axiomatic that "a failure to object to an offer of evidence at the time the offer is made, assigning the grounds, is a waiver upon appeal of any ground of complaint against its admission.' " (quoting C. McCormick, Handbook of the Law of Evidence 113 (2d ed. 1972))). We will not entertain his objection now and instead conclude that the district court correctly determined that his employment was terminable at will.

B. Violation of Consent Decree

Willoughby next argues that the district court erred when it granted summary judgment to PEPCO on his claim that the consent decree agreed to by PEPCO and the class action plaintiffs protected him, as a third party beneficiary, from adverse actions arising from the discrimination litigation. He points principally to language in the consent decree barring claims by the class action plaintiffs against PEPCO or its employees. Consent Decree at 9, reprinted at JA 65. As a PEPCO employee, the consent decree did protect Willoughby from claims by the class action plaintiffs. See, e.g., Beckett v. Air Line Pilots Ass'n, 995 F.2d 280, 286 (D.C. Cir. 1993) (intended third party beneficiaries may sue to enforce their rights under consent decree). The plain language of the provision upon which Willoughby relies, however, manifests that the right of PEPCO employees to be protected from claims governs claims by the class action plaintiffs only, not personnel actions by PEPCO. Indeed, it would make no sense for PEPCO to have sought protection from personnel actions by PEPCO.

Neither of the other consent decree provisions Willoughby cites provides any more support for his position. As PEPCO points out, the provision requiring PEPCO to issue a statement that it would not tolerate retaliation against employees "involved in this litigation" does not create an obligation to do anything other than issue the statement. Consent Decree at 29, reprinted at JA 85. More substantively, there is absolutely no evidence that PEPCO fired Willoughby based on his "participation" as a potential witness listed by the class action plaintiffs in the litigation.

The consent decree provision stating that job relief for the class action plaintiffs will not come at the expense of other employees is likewise unavailing. Consent Decree at 45, reprinted at JA 101. Although Willoughby argues that one of the class action plaintiffs, Alphonso Fields (Fields), benefited from his firing (because he was no longer Fields's supervisor), he offers no evidence suggesting that PEPCO fired him to accommodate Fields. A jury could only conclude that any benefit Fields reaped as a result of Willoughby's firing was merely fortuitous. Neither is there any evidence upon which a jury could conclude that Willoughby was fired to make...