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Carter v. District of Columbia

September 24, 2009

CAROLYN M. CARTER, APPELLANT,
v.
DISTRICT OF COLUMBIA, APPELLEE.



Appeal from the Superior Court of the District of Columbia (CAB 4651-04) (Hon. Mary A. Gooden Terrell and Hon. Geoffrey M. Alprin, Motions Judges).

The opinion of the court was delivered by: Glickman, Associate Judge

Argued April 1, 2009

Before REID, GLICKMAN, and OBERLY, Associate Judges.

In late 2001, Carolyn Carter was fired from her position as a supervisor in the District of Columbia Department of Human Services (DHS). By summer 2002, she filed a discrimination complaint with the D.C. Office of Human Rights. That complaint still was pending when she filed this civil suit in Superior Court against the District in June 2004. In a series of three orders, two judges of the Superior Court granted summary judgment to the District on each of Carter's claims. Carter asks us to reverse each ruling. We hold, however, that Carter's Human Rights Act claims were barred by either the statute of limitations or her election of an administrative remedy; that her severance pay claim is without merit because she chose to receive a retirement annuity instead; and that her common law wrongful discharge claim is similarly without merit because her case does not fall within an exception to the at-will employment doctrine. Carter also complains on appeal that the trial court entered final judgment for the District without allowing her to amend her complaint to assert new causes of action on the day set for trial. We hold that Carter forfeited her objection to that ruling. Accordingly, we affirm.

I. Factual Background*fn1

Carter began working for DHS in 1969. By 2000, she had advanced to the position of Supervisory Social Service Representative in the DHS Income Maintenance Administration (IMA). In that position, Carter supervised two unit chiefs who oversaw the processing by individual social workers of applications for public assistance. In August 2000, Carter was informed by letter that her position, formerly part of the Career Service,*fn2 would be converted to one in the Management Supervisory Service (MSS).*fn3 The letter explained that if she accepted the position, which entailed higher pay and greater responsibility, Carter would lose the rights afforded to her as a Career Service employee and would become an at-will employee. Carter accepted the position.

In approximately January 2001, Carter was passed over for a promotion to a Center Manager position and a concomitant pay increase. After failing to receive what she considered to be a satisfactory explanation for that decision, Carter sent a letter of complaint to IMA Director Carolyn Colvin in June 2001. The letter, prepared for Carter by an "employee representative," charged that "unlawful selection method[s]" had been used to fill the Center Manager positions*fn4 and that Carter's "employment rights" had been violated. The letter also asserted that Carter's supervisor, Berhan Kahsay-Jones, was "harass[ing]" her and creating a "hostile work environment."

Kahsay-Jones had become Carter's supervisor in approximately April 2001, and it appears their relationship was a rocky one from the start. As Carter later stated in her deposition, Kahsay-Jones made snide comments to her about "you people," which Carter took to be "a slur word for [American] blacks." (According to Carter, Kahsay-Jones "is Ethiopian.") On one occasion, Carter reported, Kahsay-Jones told her, "I'm saying you people are lazy. You people do not want to follow instructions." After Carter sent her complaint letter to Colvin, Kahsay-Jones began making derogatory comments about her weight. In addition, Carter testified, "[Kahsay-Jones] assigned me 10,000 cases with two employees, two supervisors, one clerk. She talked to me in a tone of voice that was very unprofessional. She screamed at me [and] tried to undermine my authority with my staff." In Carter's view, her termination was the culmination of this negative treatment.

DHS takes a different view. It attributes Carter's termination to poor job performance. Her work was already of concern to her supervisors by October 2000 (before Kahsay-Jones became her supervisor), when they placed her on an Individual Performance Plan because her performance review indicated that she "[did] not meet expectations." (In her deposition, however, Carter denied ever seeing the Performance Plan and denied signing the second and third pages of the Plan, suggesting that another employee had signed them in her stead.) Thereafter, in April 2001, Carter received the first of a series of memos from Kahsay-Jones complaining about various aspects of her job performance: that the employees Carter supervised were not complying with overtime procedures; that time-sensitive applications were not being processed; and that numerous errors were being made in the processing of the applications. (Carter denied ever having seen any of these memos, however. The record contains two memos responding to the complaints, purportedly from Carter to Kahsay-Jones, but Carter also denied writing them.) In September 2001, Kahsay-Jones recommended that Carter's employment with DHS be terminated.

The recommendation for termination was approved, and on December 17, 2001, Carter received a letter from Ms. Colvin informing Carter of her separation from government service effective as of the close of business on January 2, 2002. The letter stated that "employment in the Management Supervisory Service is terminable at-will and this termination action is neither grievable nor appealable." Carter was directed to return all government property in her possession immediately and was escorted off the premises. After receiving Colvin's letter, Carter applied for a "voluntary immediate retirement," effective January 3, 2002, which was granted. Carter claims that she was "forced to retire."

On February 20, 2002, Carter filed an intake form with the D.C. Office of Human Rights (OHR). She checked boxes on the form indicating that she had suffered discrimination and retaliation based on age and national origin. A few months later, on July 9, 2002, Carter filed a formal complaint with OHR. The complaint charged DHS with having discriminated against her and harassed her on the basis of her national origin and personal appearance; it contained no specific allegations of age discrimination or of retaliation. The complaint remained pending until December 21, 2004, when OHR issued its decision on the merits. OHR determined that DHS had taken adverse employment action against Carter because her job performance was consistently poor, and it found no probable cause to believe that DHS discriminated against Carter or subjected her to a hostile work environment. The decision did not address any claims by Carter of age discrimination or retaliation.*fn5

On June 10, 2004, while her administrative complaint still was pending before OHR, Carter filed the instant, four-count complaint in Superior Court. The complaint charged the District with (1) discrimination on the basis of age in violation of the Human Rights Act; (2) retaliation for conduct protected under the Human Rights Act; (3) breach of contract; and (4) common-law wrongful discharge in violation of public policy. In a series of three orders, the Superior Court disposed of each claim. First, on November 28, 2005, Judge Terrell awarded summary judgment to the District on the fourth count on the ground that Carter, an at-will employee, had failed to identify the public policy allegedly infringed by her discharge. Judge Terrell denied the District's motion for summary judgment as to the other three counts. Thereafter, the case was reassigned to Judge Alprin. On June 14, 2007, Judge Alprin granted summary judgment to the District on Carter's age discrimination and retaliation claims, finding them time-barred by the one-year statute of limitations. He denied summary judgment as to the breach of contract count, citing Judge Terrell's previous order as the law of the case.

The date set for trial on that sole remaining count was Monday, June 25, 2007. There was a flurry of last-minute motions activity. On Friday, June 22, Carter moved to continue the trial date. The next day, Saturday, June 23, the District moved the court to reconsider its denial of summary judgment with respect to the breach of contract count. And on the day of trial itself, Carter filed a motion for leave to amend her complaint to add two new causes of action -- one based on the Due Process Clause of the Fifth Amendment, the other on the federal Age Discrimination in Employment Act. The court deferred argument to the following day, Tuesday, June 26.

The only motion argued that day was the District's renewed motion for summary judgment, which Judge Alprin granted. The judge never ruled on Carter's motion for leave to amend her complaint. Although we cannot say for sure, it appears he may not have been made aware of the motion's existence. No one mentioned the motion to amend at the June 26 hearing. At the conclusion of the hearing, when Judge Alprin awarded summary judgment to the District and declared that his ruling "disposes of this case," Carter's counsel did not point out that the motion to amend the complaint -- which, if granted, would have kept the case alive -- remained to be considered. Moreover, Carter did not mention ...


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