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Winder v. Erste

United States District Court, District of Columbia

November 19, 2012

Alfred M. WINDER, Plaintiff,
Louis ERSTE, et al., Defendants.

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John F. Karl, Jr., McDonald & Karl, Brian Cooper Plitt, Washington, DC, for Plaintiff.

Steven J. Anderson, Office of Attorney General for DC, Washington, DC, for Defendants.


JOHN D. BATES, 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 the District of Columbia and DCPS official Louis Erste. After over nine years of litigation, plaintiff has three remaining claims: breach of contract based on premature termination; deprivation of property without procedural due process; and violations by the District under the District of Columbia's Whistleblower Protection Act (" DC WPA" ). Defendants have moved for summary judgment on the procedural due process and DC WPA claims. For the reasons discussed below, the Court will GRANT the

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motion for summary judgment on the procedural due process claim and GRANT IN PART and DENY IN PART the motion for summary judgment on the DC WPA claim.


This case has a long and complex history, which has been set forth more fully in previous opinions. See, e.g., Winder v. Erste, Civ. Action No. 03-2623, 2005 WL 736639, at *1-3 (D.D.C. Mar. 31, 2005); Winder v. Erste, 511 F.Supp.2d 160, 165-170 (D.D.C.2007); Winder v. Erste, 566 F.3d 209, 211-13 (D.C.Cir.2009); Winder v. Erste, 767 F.Supp.2d 179, 179-80 (D.D.C.2011). In 1999, Winder was hired as General Manager of the DCPS Division of Transportation where he oversaw the operation of transportation services for special education students in the District. Pl.'s Stmt. of Material Facts for DC WPA Summ. J. Mot. (" Pl.'s WPA Stmt." ) ¶¶ 2-3. Winder was brought into DCPS to assist the District in complying with the various orders issued in Petties v. District of Columbia, Civil Action No. 95-0148-PLF (D.D.C) ( " Petties orders" ). He worked for DCPS in that capacity pursuant to a series of employment contracts until his termination in April 2003.

Sometime in May 2002, Winder received a letter indicating that his position would be abolished through a Reduction in Force (" RIF" ). See Pl.'s Stmt. of Material Facts for Qual. Immun. Summ. J. Mot. (" Pl.'s QI Stmt." ) ¶¶ 1, 9. However, the timing and the applicability of the RIF to Winder's position, and the nature of Winder's employment from that point onward, are disputed. Defendants argue that plaintiff's position was lost due to the RIF on May 3, 2002 and that he was later hired into a new position, " Supervisory Management and Program Analyst," which was confirmed by letter on July 22, 2002. Erste's Stmt. of Material Facts for Qual. Immun. Summ. J. Mot. (" Def.'s QI Stmt." ) ¶¶ 9-10, 12. Winder claims that the RIF did not affect him because he had already signed his new employment contract, Pl.'s QI Stmt. ¶¶ 5, 9, 10, 12, but he does not dispute that he applied for a vacancy in 2002, was selected for the position, and then worked in the same capacity as he did previously. Id. ¶¶ 9-10.

From the outset, Winder took issue with what he perceived as DCPS's lack of commitment in complying with the Petties orders. Pl.'s WPA Stmt. ¶¶ 4, 64. From 2000 to 2003, Winder regularly complained to Special Master Baach, who was charged with overseeing the implementation of the Petties orders, about DCPS's attitude toward compliance. Id. ¶ 5. In early 2001, Erste was hired as DCPS's Chief Operating Officer. Id. ¶ 7. According to Winder, Erste had no intention of complying with the Petties orders, and his complaints all arise from that principal grievance. Id. ¶¶ 73-74.

Winder's relationship with Erste worsened over time, and his litany of criticisms— mostly against Erste, but also against DCPS generally— is long and sprawling. He complained about Erste's failure to cooperate with Special Master Baach and his unwillingness to provide Winder with resources to comply with the Petties orders. Id. ¶¶ 78-89. He criticized Erste's diversion of funds and resources from special education transportation to other department needs and uses, id. ¶¶ 95-103, 160-64, and the failure to maintain clean transportation facilities, id. ¶¶ 81, 103, 158. He complained about Erste's hiring practices, including the hiring of unqualified employees and the practice of nepotism, id. ¶¶ 104-42. He also complained about the hiring of Kennedy Khabo, who, as Operating Officer of the Division of Transportation, was Winder's

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supervisor. Sec. Am. Compl. ¶ 7; Pl.'s WPA Stmt. ¶¶ 122-24. Winder complained about these problems to Erste, the Special Master and her staff, DCPS legal counsel, and school board and city council members on numerous occasions. Erste, in return, blamed Winder for the alleged mismanagement.

Winder's complaints increased in the last year of his employment. In particular, his grievances were amplified in the August 2002 to March 2003 time period, when he claims that he communicated Erste's attitude " and his lies about providing adequate transportation resources" approximately " 15 to 20 different times." Id. ¶ 80. On December 3, 2002, Winder also sent Erste an e-mail in which he questioned the removal of $1.2 or $1.5 million from the DCPS special education transportation budget.[1] 2007 Winder Decl. ¶ 85; Pl.'s WPA Stmt. ¶ 99. These funds were apparently spent on regular education students, not on the transportation of students with disabilities. 2007 Winder Decl. ¶ 86; Pl.'s WPA Stmt. ¶ 99. Winder reported his concerns to the Special Master, both before and after the December 3, 2002 email. Pl.'s WPA Stmt. ¶ 100.

From December 2002 to January 2003, Winder encountered further conflict with Erste relating to the work stoppage of bus drivers. Winder claims that around Christmas 2002, he disclosed to Erste problems with the drivers' leave records and inaccurate recordkeeping of their holiday pay that could cause labor problems. He claims that Erste left on vacation without addressing the issue. Pl.'s Ans. to Def's Interrogatories at 8. Winder continued to warn Erste in the first two weeks of January 2003 that a possible work stoppage might occur due to driver dissatisfaction with the recordkeeping of their pay. Id. This work stoppage eventually took place on January 16 and 17, 2003. Pl.'s WPA Stmt. ¶ 156.

Shortly after the walkout, Winder testified about the work stoppage at a meeting of the D.C. Council Committee on Education, Libraries, and Recreation. 2007 Winder Decl. ¶¶ 93-94. D.C. Council member Kevin Chavous was unsatisfied with Erste and Khabo's responses, and called Winder to the witness table to answer questions. Pl.'s WPA Stmt. ¶ 179 (citing 2007 Winder Aff. ¶ 93). After Winder's testimony, Erste " express[ed] opposition and hostility" and Winder heard Erste tell Kevin Walsh, who worked for Special Master Baach, that " I should have fired that motherf* * * *r when I had the chance." Pl.'s WPA Stmt. ¶ 180; 2007 Winder Decl. ¶ 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 v. District of Columbia, 268 F.Supp.2d 38, 45 (D.D.C.2003); Pl.'s WPA Stmt. ¶ 178.

Winder and Erste met on February 3, 2002 to discuss the District's opposition to the motion to appoint a receiver. Pl.'s WPA Stmt. ¶ 182. According to Winder, Erste wanted him to submit a false affidavit stating that all positions within Winder's department had been filled and that the department was fully funded. Id. ¶¶ 182-85. When Winder refused, he claimed that Erste stated, " I'll take care of you down the road' or words to that effect." Id. ¶ 185. During that same meeting, Erste told Winder that he would have to resign. Id. ¶ 186. A few days later,

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Khabo also told Winder that Erste wanted him to resign. Id. ¶ 187.

On February 24, 2003, Winder filed a formal complaint against Khabo and Erste with the District of Columbia Inspector General. See Pl.'s Ex. E at 1-4, ECF No. 94-7. He alleged, inter alia, that Khabo and defendant Erste had filed false affidavits in the Petties litigation and that Winder was being retaliated against by Erste and Khabo for telling the truth to the Special Master about departmental problems in meeting the court orders, and he raised concerns that his rights under the First Amendment and the DC WPA were being violated.

A month later, on March 20, 2003, Winder left work on approved medical leave. 2007 Winder Decl. ¶¶ 18, 108-09. While on leave, Winder was terminated by letter dated April 3, 2003, without an opportunity to discuss his termination. Id. ¶ 109. The letter claimed that Winder was being discharged as a probationary employee, a claim that Winder has disputed throughout this litigation. Ex. 2 to Def.'s Mot. for Summ. J. Based on Qual. Immun. (" Def.'s QI Mot." ), ECF No. 159-2. Defendants also claim that Winder was terminated for failing to perform, including Winder's failure to avoid receivership. Def.'s QI Mot. at 2; Def.'s QI Stmt. ¶ 22. On June 25, 2003, the District and plaintiffs in the Petties litigation consented to the appointment of an independent transportation administrator to resolve the motion for appointment of a receiver. Pl.'s WPA Stmt. ¶ 196.

Initially, Winder asserted a myriad of claims before this Court. In its March 2005 decision, this Court granted defendants' motion to dismiss several claims, including Winder's DC WPA claim on the basis of Winder's failure to comply with the notice provisions of D.C.Code § 12-309. See generally Winder v. Erste, 2005 WL 736639 (D.D.C. Mar. 31, 2005). Eight months later, Winder amended his complaint a second time, adding additional claims for breach of contract, denial of substantive and procedural due process, and deprivation of a liberty interest without a name clearing hearing. See Pl.'s Mot. to Amend, ECF No. 59. This Court subsequently granted defendants' motion for summary judgment on the remaining claims, with the exception of plaintiff's written breach of contract claim for benefits allegedly owed. See Winder, 511 F.Supp.2d at 187. In May 2008, the Court awarded plaintiff $8,958.60 plus prejudgment interest accruing from April 3, 2003 for plaintiff's unpaid salary and annual leave. See Winder v. District of Columbia, 555 F.Supp.2d 103, 112 (D.D.C.2008).

In May 2009, the D.C. Circuit affirmed this Court on all matters, with the exception of plaintiff's premature termination and procedural due process claims. Winder, 566 F.3d at 219. The D.C. Circuit reversed and remanded these claims " because [plaintiff's] employment classification is muddled at best ... [and] ... there is a genuine question whether DCPS could terminate him when it did." Id. at 217. On remand, the parties filed cross-motions for summary judgment on these claims. The Court denied both parties' motions on the premature termination claim " [g]iven that several relevant facts regarding plaintiff's employment status remain in genuine dispute." Winder, 767 F.Supp.2d at 184. It reserved ruling on the procedural due process claims, given the uncertainty of Winder's employment status. Id. at 184 n. 2. The Court also allowed Winder to reinstate his DC WPA claim after the original basis for dismissal— failure to comply with D.C.Code § 12-309's notice requirement— was no longer applicable when the Whistleblower Amendment Act of 2009 eliminated the requirement for DC WPA

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claims. See Mem. Op. & Order 2, 5 (Mar. 7, 2011), ECF No. 155.

Now, Erste has filed a motion for summary judgment based on his qualified immunity from the procedural due process claim,[2] and the District of Columbia has filed a motion for summary judgment based on plaintiff's DC WPA claims. Voluminous briefs were received from both parties, and a motions hearing was held.


Summary judgment is appropriate when the pleadings and the evidence demonstrate that " there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). 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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party may successfully support its motion by identifying those portions of " the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of motion only), admissions, interrogatory answers, or other materials," which it believes demonstrate the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c)(1); see Celotex, 477 U.S. at 323, 106 S.Ct. 2548.[3]

In determining whether there exists a genuine dispute of material fact sufficient to preclude summary judgment, the court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A non-moving party, however, must establish more than the " mere existence of a scintilla of evidence" in support of its position. Id. at 252, 106 S.Ct. 2505. By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. " If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, ...

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