533 F.2d 13 (D.C. Cir. 1976), 74-2112, Vogel v. Washington Metropolitan Area Transit Authority

Docket Nº:74-2112.
Citation:533 F.2d 13
Case Date:April 08, 1976
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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533 F.2d 13 (D.C. Cir. 1976)

Herman VOGEL, Appellee,



No. 74-2112.

United States Court of Appeals, District of Columbia Circuit

April 8, 1976

Argued Nov. 4, 1975.

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Peter J. Ciano, Washington, D. C., for appellant.

Philip F. Herrick, Washington, D. C., with whom Manuel J. Davis, Washington, D. C., was on the brief for appellee.

Before LUMBARD,[*] Senior Circuit Judge for the Second Circuit, WRIGHT and TAMM, Circuit Judges.

Opinion for the Court filed by Circuit Judge TAMM.

TAMM, Circuit Judge:

In this action defendant-appellant Washington Metropolitan Area Transit Authority ("WMATA") appeals from a district court judgment granting plaintiff-appellee, Herman Vogel (Vogel), a $10,000 bonus and $3,928.80 in severance pay. The appellant raises essentially the following issues on appeal: (1) whether the trial court erred in finding that the D.C. Transit System, Inc. and Vogel intended to extend the latter's written employment contract after its expiration in 1971 and that WMATA assumed this same contractual obligation in 1973; and (2) whether the trial court erred in granting Vogel a bonus of $10,000 and severance pay of $3,928.80.

Because we hold that the trial court correctly decided that Vogel's employment contract was extended and then assumed by WMATA, but erred in its computation of a bonus and incorrectly granted severance pay, we reverse in part and remand to the district court for the entry of a proper order.


Vogel entered into a written employment contract with the D.C. Transit System, Inc. (Transit) on November 18, 1970. Vogel agreed to act as Director of Sales and Marketing in return for a yearly salary of $25,000 and a bonus "equivalent to 2% of the Company's net completed sales in the Chartering and Sight-Seeing Department in excess of $2,500,000.00 for the period of this contract, including Chartering and Sight-Seeing of its affiliate, Washington, Virginia and Maryland Coach Co., Inc." The contract also provided that "(t)he bonus for the period of this contract is not to exceed in any event $10,000.00." Appendix at 17. Vogel was not entitled to receive any bonus if terminated for cause before the expiration

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of the agreement on November 22, 1971. There also was an integration clause providing that the contract could not be modified, extended, or varied unless in writing and signed by both parties.

The problem here arose because Vogel continued to work in this capacity for Transit after November of 1971 without a written extension of his employment agreement. His salary remained the same and he received a $10,000 bonus in 1971 and 1972.

In January, 1973, WMATA acquired the Transit assets, including its employees, pursuant to the National Capital Area Transit Act of 1972. 86 Stat. 999. Vogel stayed on, working out of his office at 1422 New York Avenue. In February 1973 WMATA acquired the assets of Alexandria, Barcroft & Washington Transit Company ("AB&W") and WMA Transit Company (WMA). Vogel continued to direct all charter sales operations for WMATA.

WMATA moved its offices to L'Enfant Plaza in the spring of 1973. This move caused some confusion and handicapped the charter sales department because the new telephones were not functioning properly and there was no ready access to a copying machine. During this period, Vogel allegedly advocated a sickout to "teach the bastards a lesson." Record at 110, 135. He was greatly agitated because of the inartful move which hampered his sales operations. No employees, including Vogel, took sick leave at this time.

On June 22, 1973, Vogel and his superior, Mr. John Warrington, met to discuss Vogel's alleged remarks. Another meeting was held on July 2 at which Warrington verbally notified Vogel...

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