The opinion of the court was delivered by: Reggie B. Walton, United States District Judge.
This matter is before the Court on defendant Howard University's motion for summary judgment.*fn1 Having considered defendant's motion, plaintiff's opposition, and the record in this case, the Court will grant the motion in part, and deny the motion in part.
Plaintiff Larry Austin worked in the Medical Records Department at Howard University Hospital from December 1987 until his termination on May 17, 1999. On May 3, 1999, plaintiff and Sharyl Van Hook,*fn2 a female co-worker, had a heated verbal altercation at their workplace, during which both parties traded insults. Plaintiff reported the incident to their immediate supervisor, Maria McIntosh. Plaintiff's Memorandum of Points and Authorities in Support of his Opposition to Defendant's Motion for Summary Judgment ("Pl.'s Opp'n."), Ex. M (Deposition ("Dep.") of Maria McIntosh) at 47-48. Ms. McIntosh in turn informed her supervisor, Terrie McCray, the Director of Medical Records, of the incident. See id., Ex. N (Dep. of Terrie McCray) at 98-100. Ms. McIntosh requested and obtained written statements from Ms. Van Hook and other employees who witnessed the event.*fn3 See id., Ex. B-C (May 3, 1999 statements of Sonya Blizzard and Dana Hill). Based on these accounts, Ms. McCray recommended disciplinary action for both plaintiff and Ms. Van Hook. Pl.'s Opp'n, Ex. D (Memorandum from Terrie McCray, Director, Medical Records, to Renee Turner Inman, Manager, Employee and Labor Relations, regarding recommendations for disciplinary action). Both plaintiff and Ms. Van Hook subsequently were terminated. See Memorandum of Points and Authorities in Support of Defendant's Motion for Summary Judgment ("Def.'s Mem."), Ex. 2 (Dep. of Larry D. Austin) at 146, 150. Plaintiff received his termination letter on May 17, 1999. See id. at 76.
Plaintiff initially filed a pro se complaint in which he asserted a single claim of age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. (1999), and the District of Columbia Human Rights Act ("DCHRA"), D.C. Code § 2-1401.01 et seq. (2001). Howard University answered the complaint after its motion to dismiss was denied. Thereafter, the Court appointed counsel to represent plaintiff in this action. Counsel then filed an amended complaint in which he re-asserted the ADEA and DCHRA claims against Howard University (Counts V and VI respectively) and added claims against Howard University for breach of the collective bargaining agreement (Count I), breach of contract (Count III) and self-defamation (Count IV). The First Amended Complaint also added a claim of breach of the duty of fair representation against the American Federation of State, County and Municipal Employees, Local 2094 (Count II). Thereafter, plaintiff voluntarily dismissed with prejudice Counts I, II, V and VI of the complaint. Accordingly, the only remaining claims are those for breach of contract and for self-defamation (Counts III and IV respectively) that have been filed against Howard University.
Summary judgment should be granted to the movant if it has shown, when the facts are viewed in the light most favorable to the non-movant, that there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Fed. R. Civ. P. 56(c). A material fact is one"that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When evaluating a summary judgment motion, the Court must draw all reasonable inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. at 255."Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Id.; Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000). The party opposing a motion for summary judgment"may not rest upon the mere allegations or denials of his pleading, but... must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. at 248; see also Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 150 (D.C. Cir. 1996).
B. Breach of Contract Claim
Plaintiff alleges that the Howard University Employee Handbook ("Handbook") constitutes an employment contract, and that his termination did not comply with its terms. See First Amd. Compl. ¶¶ 29-34. As a result, plaintiff claims that he suffered damages arising from the loss of employment, the loss of income, and the loss of other employment benefits. See id. ¶¶ 23, 34. Defendant counters that the Handbook, by its terms, is not an employment contract. Further, defendant argues in the alternative, that even if the Handbook is a contract, plaintiff's failure to avail himself of the grievance procedures set forth therein constitutes a waiver of any rights created by the Handbook.
If an employee is hired without an expressed term or duration for his employment, as was plaintiff, it is presumed that he is an at-will employee. See Nickens v. Labor Agency of Metropolitan Washington, 600 A.2d 813, 816 (D.C. 1991); see Washington Welfare Ass'n, Inc. v. Wheeler, 496 A.2d 613, 616 (D.C. 1985); see Sullivan v. Heritage Foundation, 399 A.2d 856, 860 (D.C. 1979). Under District of Columbia law, an employer may discharge an at-will employee at any time for any reason. See, e.g., Thigpen v. Greenpeace, Inc., 657 A.2d 770, 771 (D.C. 1995). The at-will employment presumption may be rebutted"by evidence that the parties intended the employment to be for a fixed period, or subject to specific preconditions before termination." Nickens, 600 A.2d at 618 (citations omitted).
An employee handbook or personnel manual may provide evidence"of the terms and conditions both employer and employee accept as part of the [employment] agreement," and therefore rebut the at-will employment presumption. Wheeler, 496 A.2d at 615 (citing Green v. District of Columbia Unemployment Compensation Bd., 273 A.2d 479, 480 (D.C. 1971)). In certain circumstances, provisions of an employee handbook or personnel manual may create contractual rights for an employee. Strass v. Kaiser Foundation Health Plan of Mid-Atlantic, 744 A.2d 1000, 1011 (D.C. 2000). Whether an employee handbook creates contractual rights for an employee is a question for a jury. See Yesudian v. Howard University, 153 F.3d 731, 745 (D.C. Cir. 1998); see Wheeler, 496 A.2d at 615.
A handbook or manual's express terms, however, may disclaim the creation of any contractual obligations. See Strass, 744 A.2d at 1012. Thus, an employer may include language in an employee handbook which expressly disclaims the creation of an implied contract. See Roberts v. Howard University, 740 A.2d 16, 19 (D.C. 1999) (handbook did not apply to union member covered by collective bargaining agreement; in dicta, court noted handbook's terms declaring that it was not an employment contract); see Smith v. Union Labor Life Ins. Co., 620 A.2d 265, 269 (D.C. 1993) (language stating that employee handbook"is not an employment contract" and reiterating employer's right to terminate management personnel"at will" effectively disclaimed an implied employment contract). However, the inclusion of a contractual disclaimer does not lead inevitably to the conclusion that an employer is relieved of any obligation to comply with the manual's terms. See Strass, 744 A.2d at 1012. The District of Columbia Court of Appeals summarized its position on the subject, stating:
All told, we think... that assurances by an employer in a personnel or policy manual distributed to all employees that are clear enough in limiting the right to terminate to specific causes or events will overcome the presumption of at-will employment. Such a promise... creates a triable issue of fact as to the existence of an implied contract for continued employment. In effect, promises meeting this test reverse the normal presumption: to make them unenforceable at law, a manual ...