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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 17, 2004 Decided June 25, 2004
No. 03-7155
VIOLA J. KEYES,
APPELLANT
v.
DISTRICT OF COLUMBIA AND CAROLYN GRAHAM,
DEPUTY MAYOR FOR CHILDREN AND FAMILIES
INTERIM DIRECTOR DEPARTMENT OF HUMAN SERVICES,
IN HER INDIVIDUAL CAPACITY,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 00cv01343)
Michael G. Kane argued the cause and filed the briefs for
appellant.
Donna M. Murasky, Assistant Attorney General, Office of
Attorney General for the District of Columbia, argued the
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
cause for appellee. With her on the brief were Robert J.
Spagnoletti, Attorney General for the District of Columbia,
and Edward E. Schwab, Deputy Attorney General, Office of
Attorney General for the District of Columbia.
Before: EDWARDS, SENTELLE and ROGERS, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
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.
I.
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 De-
partment 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,
3
1999, at A1. Contrary to the Post’s reporting, under Keyes’
supervision the OIC had investigated several deaths. Howev-
er, 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 con-
fused, 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.
4
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 involun-
tary, 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 deter-
5
mination that the voluntariness of Ms. Keyes’ resignation was
dispositive of all her claims, because she had previously
conceded that this inquiry was determinative.
II.
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.
A.
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 result-
ing memorandum opinion, both times in a cursory fashion
without any argument. See Appellant’s Br. at 2 (Jurisdiction-
al Statement), 3 (Statement of the Case). Arguments raised
belatedly in her reply brief do not remedy a failure to address
6
the issue earlier. See Rollins Envtl. Servs. (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 immediately following her discussion of the standard
of review, indicates that the district court did not abuse its
discretion when it concluded that Ms. Keyes ‘‘conceded that
the voluntariness issue was dispositive of her other claims;
she cannot now argue that the issue is not dispositive simply
because of an unfavorable ruling.’’
Thus, unless this court concludes that Ms. Keyes left her
job involuntarily, the court cannot reach the substance of her
claims. One route to characterizing her departure from
District government service as involuntary is her contention
on appeal that, because the effective date of her retirement
was one day after the date she maintains she was terminated
according to the terms of Director Graham’s letter, she was
discharged without a pre-termination hearing. While this
approach would appear to fly in the face of the plain language
of the termination notice, which afforded her ‘‘at least’’ fifteen
days, the court does not reach the merits of her argument. It
is not properly before the court because it was not raised in
the district court. See District of Columbia v. Air Florida,
Inc., 750 F.2d 1077, 1084 (D.C. Cir. 1984). Hence, as she
cannot show that she was actually terminated, the only ques-
tion is whether she has raised a material issue of fact that,
because her resignation by retirement was involuntary, her
retirement was effectively a termination.
Ms. Keyes’ contention that her retirement was involuntary
is based on two alternative theories: a theory of duress
caused by District government officials falsely accusing her of
malfeasance in office, and a theory of misrepresentations
based on misleading personnel information from District offi-
cials. Simply put, for duress she maintains that because
7
there was ‘‘no factual support for any of these allegations and
TTT some of them were outright falsehoods, the termination
letter lacked good cause when it stated, ‘The aforementioned
failures on your part constitute the on-duty or employment-
related act or omission that interfered with the efficiency or
integrity of government operations.’ ’’ Appellant’s Br. at 34.
Alternatively, she maintains that she was given ‘‘bad informa-
tion’’ about the effect of taking early-out retirement on her
efforts to fight the charges against her. She concludes that
she relied on these misrepresentations in deciding to retire,
and therefore her retirement was involuntary. The District
responds that she waived her duress claim, and, in any event,
has not satisfied the requirements for such a claim. The
District further maintains that her retirement was voluntary
because, in light of undisputed facts, the district court did not
err in finding she could not have been misled by any incorrect
information.
B.
It is doubtful that Ms. Keyes properly raised and preserved
a claim of duress in the district court. In opposing the
District’s motion for summary judgment, she scarcely men-
tioned duress, and she never fleshed out any coherent theory
to support the claim. She wrote simply that, ‘‘In addition, the
evidence also shows that Ms. Keyes resigned under duress as
a result of the false allegations.’’ Opp’n to Defs.’ Mot. for
Summ. J. at 7. Instead, she argued only her misrepresenta-
tion theory. Thus, it is no mystery why the district court, in
granting summary judgment, determined that ‘‘[a]side from
her ‘misrepresentation theory,’ [Ms. Keyes] has provided no
other legal basis, such as actual duress, to support her theory
that her retirement was involuntary.’’ To avoid summary
judgment, Ms. Keyes was required to ‘‘set forth specific facts
showing that there is a genuine issue for trial.’’ Fed. R. Civ.
P. 56(e); see 10A C. Wright, A. Miller, & M. Kane, Federal
Practice and Procedure § 2719 (1998). Her failure to include
a duress theory in her opposition precluded her from arguing
it in her motion for reconsideration, see Kattan v. District of
Columbia, 995 F.2d 274, 276 (D.C. Cir. 1993), and this court
does not normally consider arguments improperly raised in
8
the district court. However, even assuming that Ms. Keyes
properly raised a claim based on duress, the record only
establishes that she faced a hard choice in electing to retire,
not duress.
For a resignation to be rendered involuntary on account of
duress, three criteria must be met: ‘‘[1] an agency imposes
the terms of an employee’s resignation, [2] the employee’s
circumstances permit no alternative but to accept, and [3]
those circumstances were the result of improper acts of the
agency.’’ Schultz v. United States Navy, 810 F.2d 1133, 1136
(Fed. Cir. 1987); see Edgerton v. Merit Sys. Prot. Bd., 768
F.2d 1314, 1317 (Fed. Cir. 1985). However, ‘‘a retirement
request initiated by an employee is presumed to be a volun-
tary act,’’ Schultz, 810 F.2d at 1135, and ‘‘where an employee
is faced merely with the unpleasant alternatives of resigning
or being subject to removal for cause, such limited choices do
not make the resulting resignation an involuntary act.’’ Id. at
1136. Ms. Keyes’ appellate brief dwells on only the third of
the Schultz criteria. Viewing the evidence in the light most
favorable to her and assuming that District government
officials acted improperly in proposing to terminate her,
thereby satisfying the third criterion, Ms. Keyes has not
established either of the first two criteria. On the contrary,
the evidence shows that Ms. Keyes was confronted with a
difficult choice — i.e., whether to remain an employee and
continue to fight the charges or to take early-out retirement
and be done with it — but not duress, in deciding to retire.
If the charges against Ms. Keyes were baseless, as she
maintains, she could have retained her position and success-
fully defended herself at the hearing she had requested. Or
she could have retired, as she did, after nearly three decades
with the District government. Although choosing between
these options may have been difficult, it was a voluntary
decision nonetheless. No reasonable jury could find she
retired under duress.
C.
Her alternative misrepresentation theory ultimately fares
no better. Like the decision of the district court, our analysis
9
is guided by Stone v. University of Maryland Medical Sys-
tem Corp., 855 F.2d 167 (4th Cir. 1988). There the Fourth
Circuit held that ‘‘a resignation may be deemed involuntary if
induced by the employee’s reasonable reliance on her employ-
er’s misrepresentation of a material fact concerning the resig-
nation.’’ Id. at 174; see Scharf v. Dept. of the Air Force, 710
F.2d 1572, 1575 (Fed. Cir. 1983). The court rejected the
argument that the resignation of the Chief of the Division of
General Surgery at a state university hospital was involun-
tary as a result of university officials’ misrepresentation that
they could immediately expel him from the hospital’s medical
staff if he did not resign on the spot. Stone, 855 F.2d at 171,
176. The court held that no reasonable jury could find that
Stone had reasonably relied on this threat in resigning,
because, as a sophisticated, well-educated doctor with three
decades of service at teaching hospitals, where he had super-
vised numerous medical staff members, he was familiar with
hospital bylaws, which precluded such summary actions. Id.
He could not have reasonably resigned without consulting
them, and because his reliance on the university officials’
misrepresentations was therefore unreasonable, his resigna-
tion could not be deemed involuntary. Id.
Ms. Keyes proffered evidence that she was told by a
District government personnel specialist that she could retire
and continue to fight the charges against her. The specialist
also told her she would be off the payroll after the fifteen day
notice period. Furthermore, Director Graham’s letter stated
that Ms. Keyes was being given only fifteen days’ notice of
her proposed termination, even though in Ms. Keyes’ experi-
ence thirty days was the norm. These misrepresentations
are material because they concern the consequences of her
resignation or the alternatives thereto. See id. at 174; Cov-
ington v. Dept. of Health & Human Servs., 750 F.2d 937, 942
(Fed. Cir. 1984). But assuming the truth of these claimed
misrepresentations, for the first two of which we must rely
exclusively on Ms. Keyes’ declaration that fails to describe
adequately the context in which the specialist’s advice was
given, the district court correctly concluded, on the record at
hand, that no reasonable jury could find that Ms. Keyes was
10
misled. She had received written notice of the proposal to
remove her and of her right to administrative review of that
proposal; she was represented by private counsel; and, after
meeting with the personnel specialist, she had nearly a week
to decide whether to retire before the earliest date on which
her termination could have become effective. Under the
circumstances, Ms. Keyes could not have reasonably relied on
the incorrect statements. Like the supervising physician in
Stone, Ms. Keyes was in an unusually good position to know
that the information could not be correct. She had been a
District government employee for twenty-seven years, had
served in senior positions for most of that time supervising
numerous employees, and was knowledgeable about personnel
rules. Critically, she was also represented by private coun-
sel, whom she does not claim was unfamiliar with District
personnel laws, and who could advise her on such matters,
including any personnel issues with which she might be
unfamiliar. Additionally, after receiving the notice and
speaking with the personnel specialist, she had ample time —
fifteen and six days, respectively — to confirm the accuracy
of the information. A person in Ms. Keyes’ position could not
reasonably be misled by the misinformation. If, as she
claims, she was confused, she should not have resigned on the
basis of the representations without verifying them with her
attorney or perhaps even with the decisionmakers or the
regulations themselves.
Ms. Keyes relies on Cocome v. District of Columbia Lot-
tery and Charitable Games Control Board, 560 A.2d 547
(D.C. 1989), for the proposition that, where an employee is
misled about her rights, her retirement must be deemed
involuntary. In Cocome, the court was reviewing an agency
action under the plainly erroneous standard, see id. at 550,
which is a more deferential standard than de novo review.
Nothing in Cocome raised serious doubts about the reason-
ableness of the employee’s reliance on his supervisor’s mis-
representations. Mr. Cocome, who at the time of his retire-
ment was Chief of the Charitable Games Division of the
Lottery Board, had worked for the District government for
less than two years, was not well-acquainted with its person-
11
nel rules, had inadequate time — less than one day — to
verify his supervisor’s representations and to consider wheth-
er to resign, and consulted counsel who was unfamiliar with
District of Columbia personnel law and who, because of the
short time period, was unable to consult with the relevant
decisionmakers or gain access to pertinent materials. See id.
at 548–49. Given Ms. Keyes’ very different circumstances,
her reliance on Cocome is misplaced and does not support her
claim that her employer’s misrepresentations rendered her
resignation involuntary.
Accordingly, because Ms. Keyes has failed to present a
material issue of disputed fact that her retirement was invol-
untary, either as a result of duress or her employer’s misrep-
resentations, and because the court declines to resolve her
belated contentions that her other claims do not hinge on the
voluntariness of her retirement, we affirm the grant of sum-
mary judgment for the District and Director Graham.