Winder v. Erste

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 6, 2009 Decided May 15, 2009

No. 08-7068

ALFRED WINDER,

APPELLANT

v.

LOUIS ERSTE, INDIVIDUALLY, AND AS CHIEF OPERATING

OFFICER OF THE DIVISION OF TRANSPORTATION,

DISTRICT OF COLUMBIA PUBLIC SCHOOLS, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:03-cv-02623)

John F. Karl Jr. argued the cause and filed the briefs for

appellant.

Richard S. Love, Senior Assistant Attorney General,

Office of the Attorney General for the District of Columbia,

argued the cause for appellees. With him on the brief were

Peter J. Nickles, Attorney General, Todd S. Kim, Solicitor

General, and Donna M. Murasky, Deputy Solicitor General.

Before: HENDERSON, BROWN, and GRIFFITH, Circuit

Judges.

2

Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge: Alfred Winder managed the

transportation division of the District of Columbia Public

Schools (DCPS) from 1999 until he was fired in 2003. He

brought suit against the District of Columbia, DCPS, and

several DCPS officials, claiming, among other things, that his

firing not only was a breach of contract but also violated his

constitutional and statutory rights to report supervisors’

misconduct without fear of retaliation. The district court ruled

against Winder on every contested issue. We affirm its

decision, with one exception. Because there is a genuine issue

whether Winder was an at-will employee who served at the

pleasure of his employer or had a contractually protected term

of employment, we reverse the grant of summary judgment

against his claims of premature termination and violation of

procedural due process.

I.

A.

In 1999, DCPS hired Winder as General Manager of its

transportation division. Winder was responsible for the

management, administration, and operation of transportation

services for special education students. His duties primarily

consisted of helping DCPS comply with court orders issued in

Petties v. District of Columbia, No. 95-0148 (D.D.C.), a class

action brought by parents of special education students

frustrated with the District’s failure to provide their children

with adequate transportation. The Petties orders mandated

specific standards and procedures for DCPS’s transportation

of special education students. The court appointed a Special

Master and a Transportation Administrator to oversee

3

implementation of the orders. Winder’s job included regular

communication with these officials.

From 1999 to 2002, Winder was employed under a series

of one-year contracts. In a 2002 reorganization, DCPS

abolished the positions of all its managers and created new

managerial jobs. Managers who wanted to stay with DCPS

had to apply for these jobs. DCPS posted a vacancy

announcement for the “new” job of General Manager of the

transportation division (which had the same duties and

responsibilities as the position Winder had held). The

announcement described the position as “Senior Executive”

and stated that “Appointees to this position serve at the

pleasure of the appointing authority.” Supp. App. at 1. Winder

applied for and received the job. A letter summarizing the

terms of his employment stated that it would commence on

July 22, 2002, and that “[t]he tenure of this contract is one

year from the commencement date.” Letter from Louis J.

Erste, Chief Operating Officer, D.C. Pub. Sch. Transp. Div.,

to Alfred Winder, Gen. Manager of Transp., D.C. Pub. Sch.

(July 17, 2002). The letter also explained that Winder was

entitled to a range of benefits, including an employer-paid

pension plan as well as sick and annual leave.

Despite the contract’s one-year term, DCPS terminated

Winder on April 3, 2003. His firing followed years of tension

between Winder and his supervisors, stemming from

Winder’s belief that they were resisting or interfering with

efforts to comply with the Petties orders. Tensions peaked

during Winder’s 2002–2003 contract term. First, in late 2002,

Winder placed nearly fifty phone calls to the Special Master

reporting problems with his supervisors. According to

Winder, they began to retaliate against him as a result. They

pressured him to resign, encouraged parents and school board

4

members to file complaints against him, and falsely told his

staff that he planned to resign.

The hostilities escalated after December 2002, when

DCPS bus drivers walked off the job to protest a new policy

that deprived them of earned benefits. Two of Winder’s

supervisors, Louis Erste and Kennedy Khabo, testified about

the driver walkout at a January 2003 meeting of the D.C.

Council Committee on Education, Libraries, and Recreation.

Winder attended the meeting but did not sit with his

supervisors at the witness table. When Erste and Khabo failed

to provide answers to the satisfaction of a councilman, he

summoned Winder to the table. According to Winder, Erste

was angered by the answers he gave and expressed hostility

toward him after the meeting.

The next month, Winder filed a complaint with the D.C.

Inspector General against Erste and Khabo. The complaint

recited the difficulties Winder was experiencing in carrying

out his job duties because of them. It also charged both with

filing false affidavits in the Petties litigation, blocking

compliance with court orders, and harassing Winder and

others.

Winder left work for an extended, pre-approved medical

leave in March 2003. During this leave he received a letter

from DCPS telling him he was being discharged. Although he

has since found new employment, Winder alleges that his

former supervisors made it hard for him to do so. For

example, when Winder asked a friend in the D.C. government

about an open transportation position, he was told that Deputy

Mayor Herb Tillery considered him “persona non grata”

based on information from DCPS officials.

5

B.

Winder filed this action in the district court in December

2003, asserting constitutional, statutory, and common law

claims. The district court resolved almost all of these claims

in favor of the defendants.1 We discuss only those claims

relevant to this appeal.

In a March 2005 order, the court dismissed several of

Winder’s claims under FED. R. CIV. P. 12(b)(6) for failure to

state a claim. The court dismissed Winder’s common-law tort

claims for unliquidated damages and his claims under the

D.C. Whistleblower Act because he failed to provide the pre-

suit notice required by statute. The court also dismissed

Winder’s other common-law tort claims and his breach of

contract claims, holding that they were preempted by the D.C.

Comprehensive Merit Personnel Act (CMPA), which governs

grievances of District employees. Winder sought

reconsideration of the dismissal of his breach of contract

claims. For the first time, Winder informed the court that he

had already pursued relief under the CMPA. In December

2004, the District agency charged with enforcing that statute

held that it lacked jurisdiction over his claims. The court

therefore reinstated the claims that it had earlier held were

preempted by the CMPA. It did not reinstate the preempted

tort claims because Winder failed to seek their

reconsideration.

In September 2007, the court granted summary judgment

in favor of the District and several individual defendants on

Winder’s First Amendment claims. It held that under Garcetti

1

The court ruled in Winder’s favor on his uncontested claim that

the District owed him compensation for 176 hours of sick leave.

6

v. Ceballos, 547 U.S. 410 (2006), Winder’s speech was not

protected because he spoke pursuant to his official duties

when he complained to DCPS officials, reported problems to

the Petties Special Master, testified before the D.C. Council,

and filed a complaint with the D.C. Inspector General. The

court also granted summary judgment against Winder’s

claims that the defendants breached his written contract and

violated his procedural due process rights when they fired him

before the end of his one-year term. The court found that

Winder was a member of the Executive Service and thus,

under D.C. law, an at-will employee who served at the

pleasure of the mayor.

The district court issued its final ruling on May 20, 2008,

disposing of Winder’s claims that the District breached his

contract by denying him certain benefits. As to unpaid

compensatory time, the court held that the 2002 contract did

not provide for such payment, that regulations requiring

payment did not apply to Winder, that an alleged pre-contract

promise by a former supervisor was not incorporated into the

contract, and that Winder had not pleaded breach of any pre-

2002 contract. As to pension benefits, the court held that

Winder had not met the minimum vesting period under D.C.

regulations and federal law.

II.

On appeal, Winder challenges the district court’s Rule

12(b)(6) dismissal of his D.C. Whistleblower Act claims and

its summary judgment rulings against his First Amendment

claim, his breach of contract claims, and his procedural due

process claim. We review these dispositions de novo. See

Gilvin v. Fire, 259 F.3d 749, 756 (D.C. Cir. 2001). A court

may dismiss under Rule 12(b)(6) if, accepting the allegations

in the complaint as true, the plaintiff has nonetheless failed to

7

state plausible grounds for relief. See Bell Atl. Corp. v.

Twombly, 127 S. Ct. 1955, 1965 (2007). Summary judgment

is appropriate if, drawing all reasonable inferences in the

nonmovant’s favor, there is no genuine issue of material fact

and the moving party is entitled to judgment as a matter of

law. See Gilvin, 259 F.3d at 756.

A.

We first address the dismissal of Winder’s D.C.

Whistleblower Act claims for lack of pre-suit notice. The Act

provides that supervisors of District employees “shall not

threaten to take or take a prohibited personnel action or

otherwise retaliate against an employee because of the

employee’s protected disclosure.” D.C. CODE § 1-615.53

(2006). Aggrieved employees may bring a civil action seeking

reinstatement, back pay, restoration of lost benefits,

compensatory damages, and other relief. Id. § 1-615.54(a).

But the Act imposes a notice obligation on plaintiff

employees: “A civil action brought pursuant to this section

shall comply with the notice requirements of § 12-309.” Id.

Section 12-309 of the D.C. Code is a general notice provision

applicable to all tort claims against the District: “An action

may not be maintained against the District of Columbia for

unliquidated damages . . . unless, within six months after the

injury . . . the claimant . . . has given notice in writing to the

Mayor of the District of Columbia of the approximate time,

place, cause, and circumstances of the injury or damage.”

The question for us is whether, as the district court held,

the Whistleblower Act requires the written notice described in

section 12-309 for all claims. Section 12-309 itself imposes

this obligation only on plaintiffs seeking unliquidated

damages. But the district court dismissed all of Winder’s

Whistleblower Act claims for lack of notice, holding that “the

8

Act . . . specifies that compliance with § 12-309 is required

before bringing a civil action for any of the remedies

authorized thereunder.” Winder v. Erste, No. 03-2623, slip op.

at 19 n.11 (D.D.C. Mar. 31, 2005). Winder does not dispute

that he failed to provide pre-suit notice to the District, but he

challenges the dismissal of his Whistleblower Act claims for

injunctive relief and back pay. He argues that because section

12-309 only requires notice for unliquidated damages claims,

the Act’s incorporation of section 12-309 must include that

limitation as well.

We disagree. The district court’s reading of the

Whistleblower Act is faithful to the plain language of the

statute. The Act incorporates only “the notice requirements of

§ 12-309,” D.C. CODE § 1-615.54(a), which call for written

notice to the D.C. Mayor within six months after the injury is

sustained, see id. § 12-309. Unlike section 12-309, the

Whistleblower Act does not limit the application of those

requirements to specific claims for relief. Rather it mandates

compliance in “[a] civil action brought pursuant to this

section.” Id. § 1.615.54(a). Our reading of the statute is

reinforced by the “cardinal rule of statutory interpretation that

no provision should be construed to be entirely redundant,”

Kungys v. United States, 485 U.S. 759, 778 (1988) (plurality

opinion of Scalia, J.). Winder’s interpretation of section

1.615.54(a) would render it redundant with section 12-309,

which already applies its notice requirements to any claim for

unliquidated damages against the District. The district court

properly rejected this interpretation and dismissed all of

Winder’s Whistleblower Act claims for failure to comply with

the pre-suit notice requirements.

9

B.

We next address the district court’s conclusion that

Winder’s various complaints about his DCPS supervisors are

not protected by the First Amendment. On appeal, Winder

limits his challenge to his testimony before the D.C. Council,

his reports to the Petties Special Master, and his complaint to

the D.C. Inspector General. He argues that the defendants

violated his First Amendment rights by firing him in

retaliation for these actions.

A public employee like Winder “does not relinquish First

Amendment rights to comment on matters of public interest

by virtue of government employment,” Connick v. Myers, 461

U.S. 138, 140 (1983). At the same time, the government as

employer must be able to prevent employees’ speech from

interfering with the “efficient provision of public services.”

Garcetti, 547 U.S. at 418. The threshold question for a public

employee’s First Amendment claim is “whether the employee

spoke as a citizen on a matter of public concern.” Id. If so, his

speech is protected unless the government can justify treating

its employees differently from other citizens. But if the

employee spoke “pursuant to” his official duties, he cannot

claim constitutional protection. Id. at 421.

Winder argues that he spoke as a citizen because his

statements were made publicly, voluntarily, and outside his

chain of command. But by his own description, Winder’s

responsibilities with DCPS included implementing the Petties

court orders and reporting regularly to the Special Master.

J.A. at 120 ¶ 29, 183 ¶ 44 (Amended Complaint). Winder was

hired to help DCPS comply with the Petties court orders. And

in each communication at issue on appeal he acted in

furtherance of that duty by exposing the efforts of DCPS

officials to block compliance.

10

In our cases applying Garcetti, we have consistently held

that a public employee speaks without First Amendment

protection when he reports conduct that interferes with his job

responsibilities, even if the report is made outside his chain of

command. See Thompson v. District of Columbia, 530 F.3d

914, 917–18 (D.C. Cir. 2008) (Chief of Security for D.C.

Lottery Board spoke pursuant to duty to maintain Board’s

financial integrity when he reported Board members’

financial misconduct); Wilburn v. Robinson, 480 F.3d 1140,

1151 (D.C. Cir. 2007) (employee hired “to root out

discrimination in the District government” did not speak as

citizen when reporting discriminatory hiring practices); cf.

Tao v. Freeh, 27 F.3d 635, 640 (D.C. Cir. 1994) (FBI

translator spoke as citizen when reporting racial

discrimination because her job duties did not include exposing

or preventing discrimination). In reporting his supervisors’

alleged obstruction of the Petties orders to the Special Master,

Winder was fulfilling his undisputed duty to see that those

orders were implemented. Likewise, his complaint to the D.C.

Inspector General requested a formal inquiry into Erste and

Khabo’s efforts to block implementation of the orders.

Finally, Winder’s testimony to the D.C. Council

committee about the DCPS bus driver walkout was also

pursuant to his duty to implement the orders. The Petties

orders required DCPS to transport students in a punctual

manner using qualified, properly trained drivers. See, e.g., No.

95-0148 (D.D.C. July 9, 1999) (order summarizing DCPS

obligations). The drivers’ walkout prevented that from

happening. And although, as Winder points out, ordinary

citizens often speak at city council meetings, Winder was not

merely speaking as a citizen when he answered the

councilman’s questions. In testifying, he was promoting

DCPS’s compliance with the Petties orders—a duty he was

11

being “paid to perform,” Garcetti, 547 U.S. at 422. If the facts

before us were different—if Winder was not hired to enforce

the Petties orders but to perform some other function within

DCPS—his testimony before the committee might fall within

the protection of the First Amendment. But by Winder’s own

description, it was his job to implement the Petties court

orders. His testimony was an attempt to ensure proper

implementation of those orders and was therefore offered

pursuant to his job duties.

Winder argues that his complaints could not be part of his

official duties because his supervisors at DCPS did not want

him to speak candidly to officials who were reviewing the

system’s compliance with the Petties orders. Wilburn

forecloses this argument. In that case, the employee

complained of discriminatory hiring practices and the

supervisor did not approve of the speech at issue. See 480

F.3d at 1142–43, 1151. But we held the speech unprotected

because the employee’s specific duties included “root[ing] out

discrimination in the District government,” id. at 1151, and

the government as employer is free to control the content of

“speech that owes its existence to a public employee’s

professional responsibilities,” Garcetti, 547 U.S. at 421.

Although some complaints of hiring discrimination might

receive First Amendment protection, they are not covered

when made by an employee whose job duties involve exactly

such complaints. So too here, although testimony before a city

council might otherwise be just the sort of citizen speech

protected by the First Amendment, the uncommonly close

relationship between Winder’s duties and his advocacy before

the council precludes protection. Thus as in Wilburn, the

disapproval of Winder’s supervisors does not bring his

comments within the scope of the First Amendment.

12

Finally, Winder argues that the district court improperly

broadened the Garcetti test by holding unprotected any

speech that “concerns” an employee’s job duties. Had the

district court so held, we agree that it would be in error.

Speech can be covered by the First Amendment even if it is

related to one’s job function. See, e.g., Pickering v. Bd. of

Educ., 391 U.S. 563, 568 (1968) (holding that the First

Amendment protects a school teacher’s speech about the

school district’s use of taxpayer revenue). But Winder

mischaracterizes the district court’s holding. The court

observed that all of the speech Winder cited “concerned” his

official duties. Winder v. Erste, 511 F. Supp. 2d 160, 173

(D.D.C. 2007). But it did not rest its conclusion on that fact.

Rather it explained, as we have, how in each instance

Winder’s speech was an attempt to implement the Petties

orders and was therefore “pursuant to” his official duties. Id.

at 173–75.2

Some remedy, such as a properly preserved claim under

the whistleblower protection laws, may have been available to

Winder. But the district court correctly held that the First

Amendment does not provide that remedy.

2

By contrast, the district court held that Winder’s complaints to

Erste and Khabo were unprotected because they were made to his

supervisors and concerned “the precise subject matter of his

employment.” Winder, 511 F. Supp. 2d at 173. This holding could

be read as broader than the “pursuant to” standard. But the court

only applied this reasoning to the complaints to Erste and Khabo,

and Winder does not challenge the First Amendment status of those

complaints on appeal. Accordingly, we need not decide whether

this arguable gloss on Garcetti for speech to supervisors is correct.

13

C.

The next question for us is whether the district court

correctly held that Winder was an at-will employee without

the protection of a contract. Two of Winder’s claims—breach

of the 2002 contract through premature termination and

violation of procedural due process—turn on this question. If

the 2002 contract did not guarantee Winder a one-year term,

then DCPS did not breach that contract by firing him within a

year. Similarly, if the contract did not give Winder a property

interest in an employment term of one year, DCPS could not

have violated his due process rights by depriving him of that

interest.

The district court acknowledged that the plain language

of the July 2002 employment contract, which provides for a

one-year term, suggests that Winder was not an at-will

employee. But the court found two reasons to look past the

written contract. Most important, the court relied on the

District’s contention—and Winder’s apparent agreement—

that Winder was employed in the Executive Service. By

statute, “[p]ersons serving in the Executive Service . . . shall

serve at the pleasure of the Mayor.” D.C. CODE § 1-610.51(b).

Thus the court held that DCPS had no authority to hire

Winder for a fixed term. The court also looked to the vacancy

announcement for Winder’s position: “Appointees to this

position serve at the pleasure of the appointing authority.”

Supp. App. at 1.

The district court’s reliance on section 1-610.51(b) was

misplaced, because Winder could not have been a member of

the Executive Service. DCPS lacked authority to classify him

as such. The Executive Service consists of “any subordinate

agency head whom the Mayor is authorized to appoint in

accordance with subchapter X-A of this chapter.” D.C. CODE

14

§ 1-603.01(9). A “subordinate agency” is “any agency under

the direct administrative control of the Mayor.” Id. § 1-

603.01(17). At the time Winder worked for DCPS, the agency

was under the control of the Board of Education. See id. § 38-

102. The Board of Education was expressly excluded from the

definition of “subordinate agency,” id. § 1-603.01(17), and

was instead included in the definition of an “independent

agency” not subject to the administrative control of the

Mayor, id. § 1-603.01(13). And Winder was not even the

“head” of the transportation division, let alone DCPS or the

Board of Education.

Moreover, appellees make no argument that Winder was

“appointed in accordance with subchapter X-A,” id. § 1-

603.01(9). That subchapter requires the Mayor to nominate

and the D.C. Council to confirm members of the Executive

Service. See id. § 1-610.51(b) (directing the Mayor to

nominate subordinate agency heads to the Executive Service

using the process described in section 1-523.01); id. § 1-

523.01(a) (requiring confirmation by the D.C. Council of all

Executive Service nominees). Winder was neither nominated

by the Mayor nor confirmed by the Council.

The district court’s mistaken conclusion that Winder was

part of the Executive Service may have resulted from

personnel records listing Winder’s job class and pay plan as

“EX” and a representation by DCPS that these records

“indicate that Mr. Winder was employed in the ‘executive

service.’” Supp. App. at 6, 8. The meaning of Winder’s

classification is unclear. There is nothing in the statute or

regulations to support such a classification. According to the

statute, Executive Service members are classified as “DX,”

not “EX.” Id. § 1-610.52(a). And the regulations provide that

employees under the control of the Board of Education (like

Winder) were classified as “EA” (Board members), “EB”

15

(Excepted Service), “ET” (Former Teachers’ Salary Act),

“EG” (Former General Schedule), or “DS” (Career Service).

See D.C. MUN. REGS. tit. 5, § 1102.3–.4. There was no

category identified as “EX.”

Without a finding that Winder was in the Executive

Service and served at the pleasure of the Mayor, the sole

remaining support for the district court’s conclusion that he

was an at-will employee is the statement in the vacancy

announcement that appointees would serve at the pleasure of

the appointing authority. But as Winder points out, the plain

language of the contract negotiated between the parties

suggests that they intended to guarantee Winder a one-year

term. A contract that specifies a duration of time is not a

contract for at-will employment. See, e.g., Reaves-Bey v.

Karr, 840 A.2d 701, 704 (D.C. 2004) (“Absent ‘expression of

a specific term of duration’ in an employment relationship,

there is a presumption that the employment is ‘terminable at

will by any party at any time.’”); see also 19 WILLISTON ON

CONTRACTS § 54:39 (4th ed. 1993) (“There are two basic

forms of employment: employment for a definite or

ascertainable term and employment at will.”).

Because Winder’s employment classification is muddled

at best, there is a genuine question whether DCPS could

terminate him when it did. With that issue in dispute, the

district court lacked a basis to grant summary judgment

against Winder’s claims that he was fired prematurely and

that his procedural due process rights were violated.

D.

Finally, we decide whether the district court properly

disposed of Winder’s remaining contract claims.

16

As explained above, the district court initially ruled that

many of Winder’s claims, including those for breach of

contract, were preempted by the CMPA. At Winder’s request,

the court later reinstated the claim for breach of the written

contract discussed in Part II.C, supra, after the District agency

charged with administering the CMPA ruled that he was not

covered by that statute. Winder argues that the court erred by

refusing to reinstate his “claims of breach of oral contract.”

Appellant’s Br. at 28. But Winder never asserted such a

claim. He relies on Count VII of the amended complaint but

never asked the district court to reinstate Count VII. He

sought reinstatement only of Count IX, which only alleged

breach of the written contract. See Plaintiff’s Motion for

Reconsideration at 2, Winder, No. 03-2623 (D.D.C. Nov. 15,

2006) (“This motion seeks reconsideration only of the

portions of the . . . Orders dismissing the claims for breach of

written employment contract.”); id. at 7 (“[W]e request the

court to reinstate Winder’s contract claims in Count IX.”).

Having failed to request reinstatement of Count VII, Winder

cannot challenge its dismissal on appeal. See Trout v. Sec’y of

Navy, 540 F.3d 442, 448 (D.C. Cir. 2008) (arguments not

raised before the district court are waived). Even if his

argument were properly raised, Count VII does not contain a

claim for breach of oral contract. Although that claim is

labeled “Breach of contract and tortious interference,” its

allegations refer only to his written contract (and are

duplicative of the written contract claim in Count IX) or relate

to tortious interference. See J.A. at 139. Winder cannot

ground his new arguments about oral contract on Count VII.

Winder next argues that the district court improperly

granted summary judgment on his contract claim for

compensatory time. Before the district court, Winder argued

that he was entitled to payment for compensatory time he

accumulated prior to and under the 2002 contract. His claim

17

was based on an alleged pre-2002 oral promise from a DCPS

official, which Winder argued had become part of the 2002

contract. On appeal, however, Winder no longer relies on the

written contract to support his claim for compensatory time.

Instead he argues that the District’s failure to pay for this time

is a breach of the alleged oral contract. But again, Winder has

waived any claim for breach of oral contract by not raising it

before the district court, either in the complaint or in the

motion for reconsideration.

Finally, Winder argues that the district court should not

have granted summary judgment against his claim for pension

benefits. The 2002 contract entitled Winder to “an employer

paid pension benefit plan with a contribution by DCPS of 7%

of total compensation.” J.A. at 111. The District initially

agreed that Winder’s benefits had vested and directed him to

apply for a refund. But in its summary judgment reply brief,

the District changed positions, explaining that its regulations

and federal law imposed a minimum five-year vesting period.

Because Winder had not worked for the District for five

years, the court denied his pension benefits claim. Winder

does not dispute that, under federal law, a pension plan such

as the District’s must impose either a five-year minimum

vesting period before an employee has a right to 100% of

employer contributions or an alternative, graduated vesting

plan. See 26 U.S.C. § 411(a)(2)(A)(i) (2006). Nor does he

dispute that the District has chosen to comply with this

requirement by using the five-year, 100% vesting period. See

D.C. MUN. REGS. tit. 6, §§ 2602.3, 2605.10, 2606.1. Instead

he claims, without offering support, that these regulations do

not apply to him. But even if Winder could show that he was

within one of the exceptions to the regulations, federal law

also requires a five-year vesting period. The district court was

bound to apply that law regardless of the District’s initial

oversight.

18

III.

Because there is a genuine issue whether DCPS could fire

Winder before the expiration of the one-year term specified in

his employment contract, we reverse the district court’s

summary judgment on the premature termination and

procedural due process claims and remand for further

proceedings. We affirm the district court in all other respects.

So ordered.