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Winder v. Erste

March 31, 2005


The opinion of the court was delivered by: John D. Bates United States District Judge


Plaintiff Alfred M. Winder is a former employee of the District of Columbia in the Division of Transportation of the D.C. Public Schools ("DCPS"). He brings this action against defendants the District of Columbia ("the District"), DCPS, and officials associated with DCPS,*fn1 alleging that his employment was terminated in violation of his First Amendment rights and 42 U.S.C. § 1983 (Counts I and V), the D.C. Comprehensive Merit Personnel Act of 1978, as amended by the Whistleblower Reinforcement Act of 1998, D.C. Code §§ 1-615.51 et seq. (Count II), and the D.C. and federal Family and Medical Leave Acts, D.C. Code §§ 32-503 et seq., and 29 U.S.C. §§ 2601 et seq. (Count III). He also raises several causes of action under D.C. common law, including defamation, tortious interference with contract and prospective economic advantage, and civil conspiracy (Counts IV, VI, VII, and VIII). Defendants have filed motions to dismiss raising assorted procedural and substantive deficiencies in plaintiff's amended complaint. For the reasons explained below, the Court grants the motions to dismiss as to all claims except for those alleging violations of the First Amendment and 42 U.S.C. § 1983 and the claims under the D.C. and federal FMLAs.


Plaintiff has had a long and distinguished career supervising and managing complicated transportation systems both publicly and privately. In 1999, he was hired as General Manager of the DCPS Division of Transportation. His responsibilities included the management, administration, and operation of transportation services for special education students in the District. During his tenure, he shared in the responsibility for bringing the District into compliance with various Orders issued in the case of Petties v. District of Columbia, Civil Action No. 95-0148-PLF (D.D.C.), regarding the transportation of special education students to their classes and school activities.*fn3 The DCPS Division of Transportation was in court-ordered receivership during the period of his management, and he made substantial improvements to the system during his tenure. Because of the receivership status of the DCPS transportation system, he reported regularly to the Court's Special Master, Elise Baach, and court-appointed Transportation Administrator David Healey.

From 2000 to 2003, plaintiff repeatedly spoke out on the resistance of his managers, including Erste, Khabo, and McCullough, to complying with the Petties Orders. He criticized the cuts in transportation funding and diversion of large portions of the budget to other school departments, the District's refusal to meet staffing needs, the hiring of unqualified bus drivers, and the failure to repair and maintain transportation facilities, as well as other failures in the system. Plaintiff also complained to the Special Master and her assistants about these problems on several occasions, and specifically stated that Erste did not support plaintiff's efforts at reform of the transportation for special needs children. Erste, in return, sought to blame plaintiff for the alleged mismanagement, and complained that the transportation budget was too high. In March of 2001, plaintiff filed an official complaint against DCPS and Erste alleging interference with his job duties and his ability to comply with court orders.

In the last year of plaintiff's employment with DCPS, the problems with compliance with the Petties Orders worsened. Between April 2002 and January 2003, plaintiff made approximately 48 telephone calls to the Special Master to notify her and her staff about the numerous transportation department problems and the resulting difficulties in complying with the orders. These problems included lack of drivers, an inadequate budget, inaccurate employee paychecks, safety and security deficits, and diversion of funding.

As a result of plaintiff's reporting these problems to the Special Master, defendants Erste, Khabo, and McCullough allegedly began to retaliate against plaintiff. They accused him of being a poor performer, pressured him to resign, and encouraged school board employees and school district parents to raise complaints about plaintiff. In the fall of 2002, Khabo falsely informed plaintiff's staff that plaintiff was about to resign, and threatened plaintiff's staff and deputy general manager with dismissal if they were not loyal to Erste.

On December 3, 2002, plaintiff forwarded to Erste an email questioning the removal of $1.2 million from the transportation budget. These monies allegedly were spent instead on regular education students, which plaintiff reported to the Special Master. The following month, plaintiff submitted a document in the Petties litigation to set the record straight on his efforts to comply with the Orders in that litigation. The next day, the Financial Director of Transportation, Michael J. Rahim, was fired when he refused to tell Erste that plaintiff was at fault for the Division's failure to comply with the Petties Orders. Defendants also informed Rahim that they wanted to terminate plaintiff because he was too close to the Special Master. Khabo and Erste continued to pressure plaintiff directly to resign.

Plaintiff then filed a formal complaint with the Inspector General on February 24, 2003, alleging among other things that Erste and Khabo had submitted false affidavits in the Petties litigation and were retaliating against him for telling the truth to the Special Master about departmental problems in meeting the court orders. He raised concerns that his rights under the First Amendment and the D.C. Whisteblower Reinforcement Act were being violated.

On March 20, 2003, plaintiff commenced 30 days of sick leave to undergo extensive oral surgery. He was terminated while on leave, by letter dated April 3, 2003, delivered to his lawyer. He alleges that he has been unable to find similar work since then. He was not selected for the position of Director of Parking Operations after Erste allegedly made false statements about him to the Deputy Mayor for Operations in May 2003.


I. Dismissal of Certain Individual Defendants

A. Defendant Khabo -- Adequacy of Service of Process

Defendant Khabo moves to dismiss the complaint on the ground that plaintiff failed to effectuate proper service of process on him in compliance with Fed. R. Civ. P. 4(e).*fn4 The affidavit of service filed by plaintiff states that the process server left copies of the summons and complaint with Beverly Khabo, defendant Khabo's wife, at 1701 Lawrence St. NE, Washington, DC on February 10, 2004. Defendant Khabo's affidavit states that this address was neither his"dwelling house" nor his"usual place of abode" at the time service of process was purportedly executed (February 10, 2004). He states that, in November 2003, he moved to a new address at 3510 General DeGaulle Dr., New Orleans, Louisiana. He further states that he has not been served with the summons and complaint nor has he seen the summons and complaint.

Plaintiff opposes the motion on the ground that defendant Khabo has failed to provide sufficient evidence that he was improperly served, and specifically, that Khabo fails to explain why his wife's residence is not his residence or to offer additional evidentiary support that Louisiana is his primary place of residence. Plaintiff also argues that Khabo has actual notice of this action, and that his co-defendant, DCPS, has elected to represent Khabo by filing the motion to dismiss.

The law is clear that"[t]he party on whose behalf service is made has the burden of establishing its validity when challenged." Light v. Wolf, 816 F.2d 746, 751 (D.C. Cir. 1987); Norlock v. City of Garland, 768 F.2d 654, 656 (D.C. Cir. 1985) ("Once the validity of service of process has been contested, the plaintiff'must bear the burden of establishing its validity.'") (quoting Aetna Bus. Credit v. Universal Decor, 635 F.2d 434, 435 (5th Cir. 1981)); Saez Rivera v. Nissan Mfg. Co., 788 F.2d 819, 821 (1st Cir. 1986). Valid service of process is necessary in order to assert personal jurisdiction over a defendant. Mid-Continent Wood Products, Inc. v. Harris, 936 F.2d 297, 301 (7th Cir. 1991). A defendant's actual notice of the litigation is insufficient to satisfy the service of process requirements under Rule 4. Id.; Whitehead v. CBS/Viacom, Inc., 221 F.R.D. 1, 3 (D.D.C. 2004); Baade v. Price, 175 F.R.D. 403, 405 (D.D.C. 1997).

Plaintiff offers no evidence that contradicts Khabo's affidavit stating that he was not a resident at the place of service on February 10, 2004, and that his residence has been in New Orleans since November 2003. Plaintiff only makes conclusory assertions that Khabo's evidence is insufficient to establish the absence of residency at the above-stated residence in Washington, D.C. -- an argument based on the presumption that the defendant bears the burden of proving the insufficiency of service of process. However, as noted above, when a defendant contests the validity of service of process, as has been done here, the burden is on the plaintiff to establish its validity. Plaintiff has failed to meet this burden. Additionally,*fn5 there is no evidence in the record to indicate that defendant Khabo has attempted to evade service of process. His affidavit attests that his change of residence occurred in November 2003, before this lawsuit was filed. Accordingly, Khabo's motion to dismiss the complaint against him individually is granted.*fn6

B. Propriety of DCPS as a Defendant

Defendant DCPS moves to dismiss the complaint on the ground that it is not suable as a separate entity under D.C. law. Plaintiff argues that the D.C. Code makes DCPS sui juris by establishing it as an independent agency and that the course of conduct in the Petties litigation, in which DCPS purportedly was a named defendant, demonstrates that DCPS is a suable entity. Plaintiff further argues that the decision of the U.S. Supreme Court in Monell v. Dep't of Social Serv. of the City of New York, 436 U.S. 658 (1978), addressing municipal liability for constitutional violations, stands for the broad proposition that school systems are directly subject to liability as"persons" under § 1983.

As a threshold matter, DCPS is not a suable entity under the D.C. Code. See Kelley v. Morris, 400 A.2d 1045, 1047 (D.C. 1979) (holding that D.C. Code § 31-101a, now codified at § 1-204.95 (2001), vests control of the public schools in the Board of Education, which itself is not a suable entity); Tschanneral v. District of Columbia Bd. of Educ., 594 F. Supp. 407, 408 (D.D.C. 1984) (dismissing Board of Education as defendant based on Kelley, and noting that claims for injunctive relief were properly directed against Board members and school officials in their official capacities, while claims for damages must be made against the District of Columbia if District funds are to be reached); Graetz v. District of Columbia Public Schools, 1987 WL 8527, *1 (D.D.C.) ("The District of Columbia Public Schools... is not a suable entity under the District of Columbia Code").

Plaintiff's reliance on the Petties litigation for the proposition that DCPS is a proper defendant is misplaced. DCPS was not a named defendant in that litigation. Instead, the District, the Superintendent, and the Director of Special Education for DCPS were the named defendants. The cases cited by plaintiff serve to ...

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