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Winder v. Erste

September 30, 2007


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 he was subject to a hostile work environment and then terminated in violation of his First Amendment and due process rights and 42 U.S.C. § 1983, and his rights under 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. He further alleges that the termination was in breach of his written employment contract, and that he has suffered a loss of benefits due under the contract. Before the Court are defendants' motions for summary judgment, which include a supplemental motion addressing the contract claim. For the reasons explained below, the Court will grant defendants' motions for summary judgment in their entirety, with the exception of the contract claim for benefits allegedly owed to plaintiff.


In August 1999, plaintiff was appointed as the General Manager of the Division of Transportation for DCPS. Pl.'s Ex. A, Decl. of Alfred M. Winder ("Winder Decl.") ¶ 44.*fn2

Plaintiff's responsibilities included the management, administration and operation of transportation services for special education students in the D.C. metropolitan area. Id. ¶¶ 19-20. He also shared in the responsibility for bringing the District into compliance with various Orders issued in Petties v. District of Columbia, Civil Action No. 95-0148 (D.D.C.), a class action lawsuit by D.C. parents alleging that DCPS had failed to provide adequate transportation for special education students. Winder Decl. ¶ 12; see generally Petties, 2006 WL 1046943, at *1 (D.D.C. Apr. 21, 2006). Judge Friedman issue a series of orders in Petties mandating specific standards and requirements for the DCPS special education transportation system, and appointed a Special Master (Elise Baach) and a Transportation Administrator (David Healey and, later, David Gilmore) to oversee implementation of the orders.*fn3 See generally Petties, 2006 WL 1046943, at *1; Winder Decl. ¶ 44. Plaintiff worked with the chain-of-command within DCPS, including Louis Erste, the Transportation Division's Chief Operating Officer who also was plaintiff's supervisor, in implementing these orders. Id. ¶¶ 60, 71, 80-81.

As General Manager of the Transportation Division, plaintiff was required to report regularly to the Special Master and her staff, and communicated regularly with the Transportation Administrator. Winder Decl. ¶¶ 14, 44, 82-83. From 2000 to 2003, plaintiff repeatedly spoke out against what he perceived to be his supervisors' purposeful resistance to the Petties orders and the general failure of the Transportation Division to meet the standards articulated in Petties. Id. ¶¶ 60-62. Plaintiff also protested the Transportation Division's lack of adequately trained drivers; the Division's insufficient budget and diversion of funds to other school departments; the absence of supplies needed for the maintenance of offices and bus terminals; the Division's inaccurate record keeping; and the hiring and retention of unqualified employees and contractors at excessive salaries. Id. ¶¶ 50-58.

Plaintiff believed that Erste, as well as DCPS General Counsel Veleter Mazyck and DCPS Labor Partnership Manager Janie McCullough, were stonewalling and, at several points, opposing, efforts by the Special Master to bring DCPS into compliance with the Petties orders. Id. ¶¶ 77-101. Mazyck allegedly told plaintiff that the Special Master "is not going to run this school system and you don't report to her," and stated several times that she did not intend to cooperate with the Special Master's requests or provide funds to do so. Id. ¶¶ 79-80. Plaintiff reported the difficulties he faced within the Transportation Division to the Special Master and the Transportation Administrator. Id. ¶¶ 61, 83. These reports allegedly included his belief that Erste had refused to meet staffing needs; failed to discipline absent bus drivers and provide necessary driver training; inaccurately audited employee leave balances; misunderstood transportation scheduling and the driver licensing process; failed to provide parents with appropriate Medicaid reimbursements; and spent transportation funds on other school programs while "transportation funding fell short." See Second Am. Compl. ¶¶ 40, 43, 48, 56. Plaintiff told the Special Master that Erste "did not support [his] efforts at reform, as required by the Court's orders," id. ¶ 41, and that plaintiff was "being set up as the 'fall guy' by Mazyck and . . . Erste for Erste's failings." Id. ¶¶ 48. In the midst of these events, the term of the first Transportation Administrator expired on January 31, 2002. See Petties, 183 F. Supp. 2d 73, 74-75 (D.D.C. 2002).

While tensions within the Transportation Division were mounting, DCPS decided to conduct a "reorganization" in mid-2002, under which DCPS abolished the positions of all managerial employees and required them to reapply for their positions. Winder Decl. ¶ 63. DCPS posted a vacancy announcement for the General Manager position, identifying it as a "Senior Executive" position, "serv[ing] at the pleasure of the appointing authority." Defs.' Ex. 7, at 1. The duties included "organiz[ing] and implement[ing] the transportation system in accordance with the policies of DCPS and the Special Education Transportation Corrective Action Plan approved by the [Petties] Court Order of March 21, 2007," and listed many associated administrative and management duties. Id. at 1-3.

Plaintiff reapplied for the position and, in July 2002, was selected over at least two other candidates. See Defs.' Ex. 10. The terms of plaintiff's employment are summarized in a July 17, 2002 letter signed by plaintiff and defendant Erste which states:

13. DCPS agrees to and does hereby employ you as its General Manager of Transportation commencing on July 22, 2002, with continued service in the position contingent on the final results of your background check.

14. Your annual salary will be $103,530.

15. Salary reviews will be based upon your achievement of previously established objectives and your performance. Your salary will be reviewed annually. The tenure of this contract is one year from the commencement date.

16. You shall be entitled to the full range of fringe benefits including a health care benefit plan; disability and life insurance; and an employer paid pension plan with a contribution by DCPS of 7% of total compensation. Sick and annual leave will be provided according to DCPS's policies and guidelines.

17. The Chief Operating Officer shall review this Agreement with the Employee annually, and shall, no less than thirty (30) days prior to the expiration of this Agreement or any renewal hereof, take official action determining whether or not it is extended for an additional year or other mutually agreed upon period of time, and notify Employee of such action in writing.

18. The Chief Operating Officer shall evaluate Employee's performance at least once each Agreement year, using criteria, performance objectives and goals, and an evaluation process adopted by DCPS for Employee's position, and which is communicated to Employee no more than ninety (90) days after this Agreement is signed.

Pl.'s Ex. C, at 1-2. Plaintiff states that he was "never told . . . there were any limitations on the written employment contract" and the term "probationary" was never used in connection with plaintiff's employment. Winder Decl. ¶ 67. Following his reappointment, plaintiff continued to perform "the same job as [he] had done before." Id. ¶¶ 19-20.

The problems within the Transportation Division soon worsened. From April 2002 to January 2003, plaintiff made approximately 48 telephone calls to the Special Master and her staff to report the numerous difficulties he encountered in effectuating compliance with the Petties orders. Second Am. Compl. ¶ 55. As a result of these reports, Erste and McCullough, together with the newly appointed Operating Officer of the Division of Transportation, Kennedy Khabo, allegedly began to retaliate against plaintiff. Id. ¶¶ 57-58. They told plaintiff that it was "in his best interest" to resign, and encouraged D.C. parents and school board members to file official complaints against him. Id. ¶¶ 58-59. Khabo also attempted to undermine plaintiff's authority by falsely informing plaintiff's staff that plaintiff intended to resign, and threatening the staff with dismissal if they failed to follow Khabo's orders. Id. ¶ 61.

On December 3, 2002, plaintiff forwarded Erste an e-mail in which he questioned the removal of $1.2 million from the DCPS special education transportation budget. Winder Decl. ¶ 85. These funds were apparently spent on regular education students and bus services with charter service companies, rather than on the transportation of students with disabilities. Id. ¶ 86. Plaintiff reported his concerns to the Special Master. Id.

Plaintiff encountered further conflict with Erste the next month. Plaintiff testified in mid-January 2003 at a meeting of the D.C. Council Committee on Education, Libraries, and Recreation on the subject of a bus driver walkout earlier that month. Id. ¶¶ 93-94. Plaintiff states that he was asked by Councilman Chavous to come to the witness stand after Erste and Khabo "failed to give . . . straight answers." Id. Erste was angered by plaintiff's testimony, and expressed hostility towards plaintiff after leaving the meeting. Id. ¶ 94.

On January 28, 2003, the Petties plaintiffs filed a motion to appoint a receiver to bring the Transportation Division into compliance with the Petties orders. See Petties, 268 F. Supp. 2d 38, 45 (D.D.C. 2003). Two days later, on January 30, 2003, Erste fired the DCPS Financial Director of Transportation, Mohamed J. Rahim, without plaintiff's knowledge or approval, when Rahim refused to participate in Erste's attempt to make plaintiff the scapegoat for the Division's failures to comply with the Petties orders. Pl.'s Ex. O. After Rahim was fired, Khabo and defendant Erste continued to pressure plaintiff to resign. Winder Decl. ¶ 98; Pl.'s Ex. E, at 4. Three weeks later, on February 21, 2003, Erste chaired a meeting in plaintiff's office, with plaintiff, his staff, and others in attendance, and allegedly stated "we cannot accept receivership, it's your fault if you can't get these 'F***g' people to work . . . if you can't get them to work , you will be removed." Pl.'s Ex. E, at 5.

On February 24, 2003, plaintiff filed a formal complaint against Khabo and Erste with the District of Columbia Inspector General. See Pl.'s Ex. E. at 1-4. Plaintiff's complaint alleged, inter alia, that Khabo and defendant Erste had filed false affidavits in the Petties litigation; that Erste was abusive to plaintiff's staff; that Erste arbitrarily withheld approval to employ transportation experts who could aid the Division in resolving its under-staffing problems; that the Division's budget was poorly managed; and that plaintiff was being retaliated against by Erste and Khabo "for speaking the truth under [his] 1st amendment rights." Pl.'s Ex. E. at 1-4.

A month later, on March 20, 2003, plaintiff left work for over two weeks of approved medical leave to undergo extensive oral surgery.*fn4 Winder Decl. ¶¶ 18, 108-09. He had, for several months, been taking antibiotics and painkillers for his condition -- a serious infection involving bleeding gums and abscesses -- but had delayed oral surgery due to the demands of his job. Id. ¶¶ 104-05.

Plaintiff was terminated while on leave, by letter dated April 3, 2003, without an opportunity to discuss his termination. Id. ¶ 109; Defs.' Ex. 8. He received no compensation for his medical leave or other benefits due under his employment contract.*fn5 Winder Decl. ¶¶ 18, 109-10. The next day, plaintiff filed a petition for appeal with the D.C. Office of Employee Appeals ("OEA"), alleging that he had been terminated for filing a claim with the Inspector General in violation of the D.C. Whistleblower Act, and also noted that he had attempted to go on sick leave on two earlier occasions -- February 27, 2003 and March 1, 2003 -- but no "proposal" was ever given. Defs.' Ex. 5, at 3. Plaintiff requested that he be paid all of his "entitlements, sick [leave], [and] vacation," and also requested that he be restored to his job. Id. He also complained that he had never received a performance evaluation in his entire career with DCPS. Id. DCPS responded that plaintiff had no right to appeal because he was a "probationary employee" (i.e., employed under a term of less than a year) and/or an at-will employee. Defs.' Ex. 3, OEA Decision at 3-4 (Dec. 6, 2004) ("OEA Decision"). In resolving plaintiff's appeal, the OEA held that plaintiff was a probationary employee, and thus had no right of appeal to the OEA. Id. at 5. This meant that plaintiff could not utilize the administrative process provided by the D.C. Comprehensive Merit Personnel Act. Id. at 4.

While his administrative appeal was pending, plaintiff searched for new employment. See Winder Decl. ¶115. Plaintiff asked his friend Wil Parker to speak to then-Deputy Mayor Herb Tillery about an unspecified transportation position with the District of Columbia government, based on Parker's acquaintance with Tillery through a church. Id. ¶ 114. Parker told plaintiff that Tillery had told Parker that plaintiff was "persona non grata," and "would not be considered for the transportation job." Id.

In January 2005, plaintiff accepted a position with Atel Bus-Truck ("Atel") as Director of Business Development for Atel's subcontract with the Baltimore Washington International Airport ("BWI"). Id, ¶ 116; see also Defs.' Ex. 1, Winder Depo. at 6-9 ("Winder Depo."). In this capacity, plaintiff is now responsible for overseeing two bus systems -- the BWI Airport Shuttle and the D.C. Circulator bus that operates in the District's downtown area. See Pl.'s Response to Defs.' Statement of Material Facts ¶ 4; Winder Decl. ¶¶ 2-4, 9; Winder Depo. at 6-9. Plaintiff works on commission, and he was paid $95,000 during his first year at Atel, and $92,000 during his second year. Winder Decl. ¶¶ 4, 116. However, plaintiff believes that his position with Atel provides him with less responsibility and less benefits than his prior position with DCPS, explaining that he is now entitled to only five days of vacation (in contrast to three weeks), no compensatory time, and less in health insurance and pension benefits. Id. ¶¶ 5-7, 116.

Plaintiff filed this action on December 23, 2003, and an initial round of motions practice narrowing the claims as well as discovery have since been completed. See Winder, 2005 WL 736639 (D.D.C. Mar. 31, 2005) (dismissing several claims under District of Columbia law); see also Winder, Order, at 1-6 (D.D.C. Jan. 23, 2007) (reinstating breach of written employment contract claim). The claims for relief that remain pending in the Second Amended Complaint are those alleging that he was subject to a hostile work environment and terminated in violation of the First Amendment and 42 U.S.C. § 1983 (Counts I and V); that he was terminated in retaliation for taking medical leave, in violation of the federal and D.C. Family and Medical Leave Acts (Count III); that he was terminated in breach of a written employment contract and also lost benefits promised under the contract (Count IX); that he was deprived of his property interest in employment in violation of his right to procedural due process (Count X); that he was deprived of his liberty interest in pursuing employment opportunities in his chosen profession without a name-clearing hearing (Count XI); and that he was deprived of substantive due process (Count XII). Defendants have moved for summary judgment on all claims.


Summary judgment is appropriate when the pleadings and the evidence demonstrate that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion by "informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions ...

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