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Brewer v. District of Columbia

United States District Court, District of Columbia

May 22, 2015

DISTRICT OF COLUMBIA, et al., Defendants.



In the fall of 2009, District of Columbia Public Schools ("DCPS") Chancellor Michelle Rhee decided to fire 233 school teachers pursuant to a purported Reduction in Force ("RIF") that Rhee maintained was necessary due to budget constraints and poor performance. This DCPS employment action was highly controversial, in no small part because DCPS had just hired 934 new teachers the previous spring and summer, and unlike many of the seasoned, older RIF-separated teachers, the new hires were mostly people in their twenties who were just beginning teaching careers through programs like Teach for America. On October 9, 2009, the Washington Teacher's Union ("WTU") filed a lawsuit in the Superior Court of the District of Columbia against Rhee, DCPS, the District of Columbia, and D.C.'s Mayor on behalf of the RIF-separated teachers. WTU alleged that DCPS's assertion of a budget shortfall was a pretext for age discrimination; in the union's view, DCPS had claimed that it was undertaking a RIF in order to discharge older teachers without having to follow the discharge procedures in WTU's Collective Bargaining Agreement ("CBA") with DCPS. The Superior Court disagreed, granting summary judgment to DCPS on the grounds that the record clearly established that DCPS had implemented the terminations in response to budgetary constraints - i.e., that the employment action was, in fact, a RIF and not a pretext for age discrimination.

Plaintiff Willie Brewer ("Plaintiff" or "Brewer") is a former DCPS music teacher and WTU member who retired after receiving notice that his position was being eliminated due to the 2009 RIF. He now brings suit against the District of Columbia, current DCPS Chancellor Kaya Henderson in her official capacity, former DCPS Chancellor Michelle Rhee in her individual capacity, and former DCPS Chief Financial Officer Noah Wepman in his individual capacity (collectively, "Defendants"). The gravamen of Brewer's complaint is that DCPS's employment action in 2009 was not actually a valid RIF and, instead, was a pretext for age discrimination, and that even if it was a valid RIF, Defendants failed to implement the various procedural protections for RIF-separated teachers that D.C.'s municipal regulations require. As a corollary to his principal claims, Brewer also argues that Defendants unlawfully breached Brewer's own employment contract, and that Defendants fraudulently misrepresented both the reasons why DCPS made the terminations generally and the reasons for Brewer's termination in particular.

Before this Court at present are two motions: a motion to dismiss the complaint or, in the alternative, for summary judgment, that the District of Columbia and Henderson have filed, and a motion to dismiss the complaint that has been submitted by individual defendants Wepman and Rhee. Yesterday, this Court issued an Order announcing that both of these motions are GRANTED ( see Order, ECF No. 54), and the instant Memorandum Opinion explains the reasoning behind that ruling. In short, this Court concludes that Brewer's complaint must be DISMISSED for two reasons: first, because the Superior Court's judgment in the WTU lawsuit precludes Brewer from relitigating whether or not the 2009 DCPS employment action was, in fact, a RIF; and second, because Brewer chose to retire when the RIF announcement was made - that is, Brewer's employment was not actually terminated pursuant to the 2009 RIF - and as a result, Brewer lacks standing to challenge Defendants' alleged failure to implement post-RIF procedural protections for the benefit of RIF-separated teachers.


A. The 2009 DCPS Employment Action And Brewer's Response[1]

Plaintiff Willie Brewer worked for DCPS for over 28 years. (Compl. ¶ 4.) Most recently, Brewer worked at Thurgood Marshall Elementary School as an "Instrumental Music K-12 Grade Level Professional." ( Id. ¶¶ 2, 6.) In the spring and summer of 2009, DCPS hired 934 new teachers for the D.C. public school system - these new teachers were mostly recent college graduates at the beginning of teaching careers who DCPS hired through placements by programs like Teach for America. ( See Compl. ¶ 13; Suppl. Compl. ¶¶ 7-8, 10.) According to the complaint, the hiring of these new teachers was unsustainable under DCPS's budget, and DCPS knew that at the time. (Suppl. Compl. ¶ 9.)

The events preceding Brewer's separation from DCPS are largely undisputed. On October 2, 2009, Brewer received a letter that stated that his position with DCPS would be eliminated pursuant to a Reduction in Force. ( See Compl. ¶ 4.) The letter informed Brewer that employees subject to the RIF "may receive a severance payment" and that Brewer "may be eligible to retire in lieu of being separated from service[, ]" which would mean Brewer would be eligible for a retirement annuity. ( See Ltr. From Michelle Rhee to Willie Brewer Jr. (Oct. 2, 2009) ("RIF Notice"), ECF No. 24-1 at 2.)[2] The letter directed Brewer to consult the DCPS webpage for further information, and to contact the DCPS Office of Human Resources with any questions. ( Id. at 3.) Brewer ultimately opted to retire from his position as a music teacher. ( See Notification of Personnel Action, ECF No. 24-2 at 2; see also Suppl. Compl. ¶ 27 (contending that Brewer was "forced into involuntary retirement"); but see Compl. ¶ 4 ("Plaintiff was terminated by Defendants" as a teacher "due to a Reduction-in-Force'").)

B. The Union Litigation

Brewer was one of approximately 200 teachers who were notified that their positions were being eliminated pursuant to the 2009 RIF. ( See Compl. ¶ 10.) According to the complaint, a vast majority of the RIF-separated teachers were over forty years of age ( see id. ), and few if any of the younger teachers were fired as a result of the purported RIF ( see Suppl. Compl. ¶ 13). This Court takes judicial notice of the fact that, approximately one week after Rhee sent out the letter announcing the RIF in 2009, the Washington Teachers' Union Local #6 ("WTU"), filed a lawsuit in Superior Court to challenge DCPS's conduct on behalf of their members, including Brewer and other veteran teachers. See Wash. Teachers' Union Local #6 v. Rhee, Case No. 2009 CA 007482 B (D.C. Super Ct. filed Oct. 9, 2009) ("Union Litigation"). As explained infra, WTU generally contended that the terminations were not really a RIF but a mass discharge, and it sought to enjoin the terminations pending arbitration pursuant to the teachers' collective bargaining agreement, which required arbitration of discharges. ( See Union Litig. Am. Compl., ECF No. 24-3, ¶¶ 22, 30, 41.) In addition, WTU brought a statutory claim under the Public Education Reform Amendment Act, contending that the terminations violated DCPS's statutory duty to "endeavor to keep teachers in place after the start of the school year and transfer teachers, if necessary, during summer break." ( Id. ¶ 46 (quotation marks omitted).)

The specifics of WTU's substantive challenge to the RIF are pertinent to this Court's analysis of the claims Brewer makes in the instant action. In its complaint, WTU specifically alleged that the purported RIF was an "attempt to disguise [a] mass discharge[.]" ( Id. at 3.) The complaint stated that, despite DCPS's assertions to the contrary, there was no "budget shortfall" that necessitated a RIF, and that this explanation was merely a "pretextual attempt" to "discharge a substantial number of veteran teachers[.]" ( Id. at 3-4; see also id. at 3 ("DCPS' claim that a budget shortfall' made a [RIF] necessary is belied by the facts."); id. at ¶ 8 ("DCPS labeled the terminations... as a RIF due to an alleged budget shortfall, ' but in actuality, it was a mass discharge[.]").) Moreover, WTU alleged that, even if it turned out that there was a budget shortfall, DCPS had caused the budgetary problems on purpose, by hiring a large number of new young teachers knowing that the budget could not accommodate those hires, so that DCPS could remove older teachers. ( See id. at 3; id. ¶ 15.)

The Superior Court denied WTU's request for a preliminary injunction. ( See Super. Ct. Order in Union Litig. ("Union Litig. Op."), ECF No. 24-4, at 2.) Then, on September 7, 2012, after a limited discovery period, the Superior Court granted summary judgment to the District, finding that "the undisputed facts establish that the RIF was implemented in response to a shortfall that had been created in the DCPS budget[.]" ( Id. at 4; see also id. at 5 ("[B]ased on the undisputed material facts in the record, the RIF was undertaken in the fall of 2009 in response to a budget shortfall, and it was indeed a RIF.").) Moreover, the Superior Court emphatically rejected the allegation in WTU's complaint that the RIF was "a pretext for terminating more senior teachers who otherwise could not have been discharged[, ]" finding that "[t]he undisputed facts in the record in no way support that claim." ( Id. at 5 n.3.) WTU appealed the Superior Court's decision ( see Notice of Appeal, ECF No. 24-5), and that appeal is currently pending before the District of Columbia Court of Appeals.

Notably, Brewer was on the WTU Executive Board and remained a member of WTU until the Union Litigation ended. ( See Aff. of Pl. Willie Brewer ("Brewer Aff."), ECF No. 47, ¶ 1.) However, according to an affidavit that Brewer filed in the instant case, Brewer was dissatisfied with the way WTU handled the case in Superior Court. ( See id. ¶¶ 1-2; see also Exs. 1-4 to Brewer Aff., ECF Nos. 47-1-47-4 (letters expressing disagreement with Union litigation strategy).) Brewer claims that WTU "refused to consider evidence [Brewer] suggested" and that such evidence "would have weighed against whether [Rhee] reasonably believed that a budget shortfall existed at the time of the mass discharge." (Brewer Aff. ¶ 1.) Consequently, Brewer and other teachers allegedly "held several protest rallies outside of [the] WTU Office Building on the public sidewalk because WTU President George Parker and lawyers refused to hear from us." ( Id. ¶ 2.) Brewer also formed a non-profit - Fight for Fired DC Personnel - in order to "fight against the inadequacy" of the Union's representation. ( Id. ¶ 2.) Brewer claims that, because of his vocal disagreement with WTU's litigation strategy, he was ultimately "banned from attending and participating in WTU Executive Board meetings[.]" ( Id. ¶ 1.) Nevertheless, Brewer retained his WTU membership, and apparently remained a member of that union until some point after he filed the instant lawsuit. ( See id. ¶ 2 (noting that the members of Fight for Fired DC Personnel were also WTU members); see also id. ¶ 13-14 (noting that Brewer continued to participate in Fight for Fired DC Personnel activities through December of 2012).)

C. Procedural History

Brewer filed the instant action on June 29, 2011 ( see generally Compl.); he filed his supplemental complaint on July 12, 2013 ( see generally Suppl. Compl.). Generally speaking, Brewer alleges that the sole justification for the challenged DCPS conduct was Rhee's desire to hire a younger teaching staff, which she allegedly did with "actual malice against older teachers" and with disregard for their rights. (Suppl. Compl. ¶ 20.) To support this contention, Brewer alleges that Rhee specifically admitted at an October 29, 2009, City Council meeting that there was no budget problem necessitating a RIF, and based largely on this contention, Brewer maintains that, thus, the DCPS's employment action was unjustified. ( Id. ¶ 15.) In addition, Brewer alleges that Rhee and DCPS violated D.C. law by not following the required RIF-related provisions for re-hiring RIF-separated teachers. ( See, e.g., id. ¶ 25.)

Brewer alleges five separate counts against Defendants.[3] In Count One, Brewer alleges that Defendants' 2009 employment action had a disparate impact on teachers over 40 and thus violated the Age Discrimination in Employment Act, 29 U.S.C. §§ 631-634, and also that Brewer and other similarly-situated teachers were denied the reemployment procedures that the RIF regulations require. (Compl. ¶¶ 21-25.) In Count Two, Brewer alleges that the same conduct also violated the D.C. Human Rights Act, D.C. Code § 2-1402.11. (Suppl. Compl. ¶¶ 29.) In Count Three, Brewer alleges that Defendants violated 42 U.S.C. § 1983 "by using RIF procedures [ ] as a pretext to deprive the RIF-separated teachers of their government employment under color of law." ( Id. ¶ 32.)[4] Count Four alleges that Defendants generally committed fraudulent misrepresentation in violation of D.C. common law when they made statements concerning the RIF, or concealed the true information about the RIF, from the City Council, the older teachers generally, and the general public - each of whom allegedly detrimentally relied on the information. (Suppl. Compl. ¶¶ 35-37.)[5] As a result of that detrimental reliance, Brewer alleges that the older teachers "forfeited their property rights in continued employment[.]" ( Id. ¶ 37.) Finally, in Count Five, Brewer alleges that Defendants committed a breach of contract in violation of D.C. common law when it notified him his position was being eliminated in October of 2009, because his employment agreement allegedly guaranteed his employment through the 2010 academic year. (Compl. ¶¶ 39-40.) Significantly, the document that Brewer has attached to his Supplemental Complaint that purportedly memorializes his employment agreement is an amendment to WTU's Collective Bargaining Agreement with DCPS. ( See Mem. of Agreement, Attach. B to Suppl. Compl., ECF No. 20 at 34.)

Defendants District of Columbia and Henderson (collectively, "the District") have filed a motion to dismiss, or in the alternative, for summary judgment. ( See Defs.' Mot. to Dismiss, or in the Alternative, for Summ. J. ("Defs.' Mot."), ECF 24.)[6] The District contends that the entire complaint should be dismissed as res judicata because Brewer's union has already challenged the 2009 DCPS terminations in court and lost. ( See id. at 1.) The District also offers four alternative arguments in support of dismissal. First, the District argues that the Court should dismiss Brewer's discrimination claims (Counts One, Two, and Three) because Brewer retired before the 2009 RIF went into effect. ( See id. at 14.) Next, the District contends that Brewer's Section 1983 claim (Count Three) must be dismissed because the ADEA provides the exclusive federal remedy for age discrimination claims. ( See id. at 15.) Third, the District argues that the Court should dismiss Brewer's fraudulent misrepresentation claim (Count Four) because Brewer's supplemental complaint failed to allege either a specific representation that DCPS made or any action that Brewer took in reliance on such a statement. ( See id. at 16.) Fourth and finally, the District maintains that the Court should dismiss Brewer's claim for breach of contract (Count Five) because the District never guaranteed Brewer's employment, and even if the contract did guarantee employment, Brewer chose to retire. ( See id. at 17.)

Defendants Noah Wepman and Michelle Rhee ("the Individual Capacity Defendants") have also filed a motion seeking dismissal of Brewer's complaint. (Defs. Noah Wepman & Michelle Rhee's Mot. to Dismiss from the Case ("Indiv. Defs.' Mot."), ECF 37.) The Individual Capacity Defendants argue that the time allotted under the relevant statute of limitations for Brewer to name Wepman had expired before Brewer named Wepman as a defendant. ( See id. at 5-8.) The Individual Capacity Defendants argue that Rhee too must be dismissed from the case on statute of limitations grounds and, additionally, because Rhee has not been properly served. ( See id. at 8.)

This Court has now considered Defendants' motions, Brewer's responses, and Defendants' Replies. ( See Pl.'s Resp. to the Defs.' Mot. to Dismiss, or in the Alternative, for Summ. J., ECF No. 27; D.C.'s Reply to Pl.'s Resp. to Defs.' Mot. to Dismiss, or in the Alternative, for Summ. J., ECF No. 29; Pl.'s Surreply, ECF No. 39; Dist.'s Reply to Pl.'s Surreply to the Mot. to Dismiss, or in the Alternative, for Summ. J., ECF No. 50; Pl.'s Opp. to Defs.' Mot to Dismiss with Respect to Rhee, ECF No. 40; Def. Michelle Rhee's Reply to Pl.;s Opp'n to the Mot. to Dismiss Michelle Rhee from the Case, ECF No. 49 at 1.) The Court has also reviewed the various documents that the parties attached to their briefs, including (1) a letter from Chancellor Rhee to Brewer, dated October 2, 2009, informing Brewer that his position at DCPS "is being eliminated as part of a reduction in force" and that he "may be eligible to retire in lieu of being separated from service" (RIF Notice at 1); (2) a document titled "Notification of Personnel Action, " which indicates that Brewer elected to retire (Notification of Personnel Action, ECF No. 24-2); and (3) an affidavit from Brewer explaining his experience with respect to the Union Litigation ( see Aff. of Pl. Willie Brewer ("Brewer Aff."), ECF No. 47; Exs. 1-4 to Brewer Aff., ECF Nos. 47-1-47-4.). The Court has also held a hearing on this matter. ( See Minute Entry for Motion Hearing, May 14, 2014.)


Brewer's primary contention is that the DCPS's employment action in 2009 was not actually a valid RIF because it was not required for budgetary reasons and, instead, the termination of his position was a pretext for age discrimination. ( See, e.g., Compl. ¶¶ 10, 24; Suppl. Comp. ¶¶ 7, 19.) At the same time - and presumably in the alternative - Brewer argues that the 2009 RIF does qualify as a valid RIF, and that Defendants violated the law by failing to implement the post-RIF procedural protections for teachers that D.C. municipal regulations require. ( See, e.g., Compl. ¶ 14; Suppl. Compl. ¶¶ 24, 33(e).)[7] Brewer also claims that DCPS fraudulently misrepresented that the contested employment action was a RIF and thereby induced teachers such as himself to "forfeit[] their property rights in ...

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