Appeal from the United States District Court for the District of Columbia (No. 00cv01343)
Before: Edwards, Sentelle and Rogers, Circuit Judges.
The opinion of the court was delivered by: Rogers, Circuit Judge
Viola J. Keyes appeals the grant of summary judgment to the District of Columbia and her former supervisor Carolyn Graham on the ground that they violated her civil rights and other statutory and constitutional rights in taking termination action against her. Because we conclude that Ms. Keyes left District government service voluntarily, and because she conceded that the voluntariness issue is dispositive of her claims, we affirm the judgment.
Viewing the evidence and making all justifiable inferences in the light most favorable to the non-moving party, see Fed. R. Civ. P. 56; Whitbeck v. Vital Signs, Inc., 116 F.3d 588, 592 (D.C. Cir. 1997) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)), reveals the following. In 1995, Viola J. Keyes, a civil servant holding multiple advanced degrees who had served the District of Columbia in management-level positions for over two decades, was appointed Chief of the Office of Investigations and Compliance ("OIC") of the Department of Human Services ("DHS"). As Chief, she "served as the sole official responsible for investigations of fraud, waste and abuse by employees in all Department of Human Service Programs, including, but not limited to the Mental Retardation and Developmental Disabilities Administration" ("MRDDA"). In 1999, the Washington Post published a series of articles reporting that the District government had failed to ensure proper treatment of MRDDA "customers," specifically, the mentally disabled citizens whose care was entrusted to the District government. The Post further reported that "DHS hasn't investigated a single death of a retarded person since at least 1993." See Katherine Boo, System Loses Lives and Trust, Washington Post, Dec. 5, 1999, at A1. Contrary to the Post 's reporting, under Keyes' supervision the OIC had investigated several deaths. However, outside investigators commissioned by the United States Department of Justice and an internal DHS review identified systemic problems similar to those reported in the Post.
On January 18, 2000, appellee Carolyn Graham, then the Interim Director of DHS, gave Keyes "advance notice of at least fifteen (15) calendar days" of her proposed removal as Chief of OIC (emphasis added). Director Graham based her decision on Ms. Keyes' "negligence in the performance of official duties," including her failure to have OIC conduct comprehensive investigations of MRDDA customer deaths. The notice informed Ms. Keyes of her right to an adversarial hearing and to representation by counsel. The letter further stated that Ms. Keyes could, within five days, file a written defense. The notice made clear that no final decision would issue until review of Ms. Keyes' appeal was complete.
On January 24, Ms. Keyes submitted a lengthy response to the charges prepared with the assistance of her private counsel. On January 27, she met with a District of Columbia Office of Personnel specialist, whom she had known since 1984, in order to determine whether she would be off the payroll after the fifteen day notice period, even if she were still fighting the proposed termination. Ms. Keyes was confused, because in her twenty-seven years' experience in the District government, employees were always given thirty days advance notice of an adverse action. The personnel specialist told Ms. Keyes that she would be off the payroll at the end of the fifteen day period, and that it was unclear when a hearing on Ms. Keyes' termination would take place. Recommending that Ms. Keyes take "early-out" retirement, which would provide her with income while she awaited her hearing, the personnel specialist assured Ms. Keyes that she would be able to continue challenging the charges even after her retirement. The personnel specialist further advised Ms. Keyes that she would be ineligible for early-out retirement after she was officially terminated, because she would no longer be a District government employee.
Based on this personnel advice, Ms. Keyes on January 27, 2000 completed a "Request for Personnel Action" form, on which she explained her resignation from District government employment as, "I have no choice based on false allegations" and "Early Out Retirement." On the Request, she indicated February 3, 2000 as the effective date of her retirement. The following day, January 28, Ms. Keyes took custody of her termination-related files from her private counsel, whom she discharged. When the District government processed Ms. Keyes' Request, it made her retirement effective February 1. On February 8, Director Graham wrote Ms. Keyes that, "[a]s a result of your retirement, no further action will be taken with regard [to your proposed termination]." Similarly, the official responsible for conducting Ms. Keyes' termination hearing wrote her on February 23 that, as a result of her retirement, "the proposal to remove you from [your] position is now moot and a decision from me is not necessary."
On June 9, 2000, Ms. Keyes filed a suit against the District of Columbia and several of its officials, alleging they had violated her civil rights under 42 U.S.C. § 1983 by retaliating against her for her First Amendment-protected speech; by depriving her of her property interest in her job without substantive and procedural due process; by infringing on her liberty interest without due process; and by denying her equal protection of the laws. She also alleged the violation of the District of Columbia's whistleblower statute, D.C. Code § 1-616.13 (now codified at D.C. Code § 1-615.53). The district court granted summary judgment for the District of Columbia and Director Graham (together, "the District"), the only remaining defendants, upon determining that each of Ms. Keyes' claims depended on her retirement being involuntary, and that, given the undisputed facts, no reasonable jury could find that her resignation was involuntary as a result of the District's misrepresentations. The district court denied Ms. Keyes' motion for reconsideration, see Fed. R. Civ. P. 59(e), refusing to consider her argument that she resigned under duress, because she had "mention[ed] duress only in passing and le[ft] any possible duress `argument' entirely undeveloped." The court also refused to reconsider its determination that the voluntariness of Ms. Keyes' resignation was dispositive of all her claims, because she had previously conceded that this inquiry was determinative.
On appeal, Ms. Keyes contends that the district court erred in granting summary judgment because it proceeded on the basis that she had retired voluntarily. According to Ms. Keyes, because her retirement was not effective until the day after her termination, her discharge was involuntary and occurred without a pre-termination hearing. She further maintains both that her retirement was the result of duress induced and misrepresentations made by District government personnel, and that the retirement voluntariness issue was not dispositive of her other claims. The court reviews de novo the grant of summary judgment, see Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994), which is proper only where there are no genuine issues of material fact and judgment is proper as a matter of law. See id. at 638. Our review of the denial of reconsideration is for abuse of discretion. See Anyanwutaku v. Moore, 151 F.3d 1053, 1058 (D.C. Cir. 1998). We first address several threshold matters, and then consider whether Ms. Keyes has raised a material issue of disputed fact concerning whether her retirement was involuntary as a result of duress or her employer's misrepresentations.
As an initial matter, Ms. Keyes cannot prevail on the basis that, contrary to the district court's conclusion, the issue of the voluntariness of her departure from government service is not dispositive of all her claims. As the District notes, Ms. Keyes failed to argue in her first appellate brief that the district court abused its discretion in denying her motion for reconsideration. Ms. Keyes' initial brief mentions only twice her motion for reconsideration and the district court's resulting memorandum opinion, both times in a cursory fashion without any argument. See Appellant's Br. at 2 (Jurisdictional Statement), 3 (Statement of the Case). Arguments raised belatedly in her reply brief do not remedy a failure to address the issue earlier. See Rollins Envtl. Serv. (NJ) Inc. v. United States EPA, 937 F.2d 649, 652 n.2 (D.C. Cir. 1991). Under the circumstances, where the District has been denied an opportunity to respond in its brief, the court declines to consider the issue. See Washington Legal Clinic for the Homeless v. Barry, 107 F.3d 32, 39 (D.C. Cir. 1997). In any event, a review of the record, see, e.g., Ms. Keyes' Opposition to Defendants' Motion for Summary Judgment at 7, in which Ms. Keyes addresses the voluntariness issue as a threshold question ...