Winder v. Erste

• Decision Date: 29 March 2013
• Docket Number: Civil Action No. 03–2623 (JDB).
• Citation: 934 F.Supp.2d 109
• Parties: Alfred M. WINDER, Plaintiff, v. Louis ERSTE, et al., Defendants.
• Court: U.S. District Court — District of Columbia

934 F.Supp.2d 109

Alfred M. WINDER, Plaintiff,

v.Louis ERSTE, et al., Defendants.

Civil Action No. 03–2623 (JDB).

United States District Court,

District of Columbia.

March 29, 2013.

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

Joseph Alphonso Gonzalez, Steven J. Anderson, Jonathan Hale Pittman, Denise J. Baker, Office of Attorney General, Washington, DC, for Defendants.

MEMORANDUM OPINION

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 has brought this action against the District of Columbia and DCPS official Louis Erste. The Court previously granted defendant's motion for summary judgment on Winder's procedural due process claims, and granted in part and denied in part the District's motion for summary judgment on Winder's District of Columbia Whistleblower Protection Act (“DC WPA”) claims. Based on certain deficiencies in the record, the Court gave the District an opportunity to file a renewed motion for summary judgment on the remnants of Winder's DC WPA claim, which were limited to the following three events: Winder's purported testimony before the D.C. Council; his conversation with Erste relating to the filing of a false affidavit; and his complaint to the InspectorGeneral. The District has now filed that motion. For the reasons discussed below, the Court will grant it in its entirety.

BACKGROUND

This case has a long and tortured 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 *1–2 (D.D.C. Mar. 31, 2005); Winder v. Erste, 511 F.Supp.2d 160, 165–70 (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); Winder v. Erste, 905 F.Supp.2d 19, 23–27 (D.D.C.2012). In short, the case arises from the termination of Winder from his position as transportation manager; in that capacity, he assisted in the District's compliance with the orders issued in Petties v. District of Columbia (D.D.C.) (“ Petties orders”), which were designed to address major problems in the way the District managed the transportation of special education students. The only issues left in the case concern three events that constitute Winder's remaining DC WPA claims. Hence, only the relevant facts relating to those claims are set forth here.¹

Winder purportedly testified about a work stoppage of bus drivers at a meeting of the D.C. Council Committee on Education, Libraries, and Recreation. 2007 Winder Decl. ¶¶ 93–94. He claims that the chair of the hearing, D.C. Council member Kevin Chavous, had been unsatisfied with Erste's and Operating Officer of the Division of Transportation Kennedy 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. Pl.'s WPA Stmt. ¶ 178.

Winder and Erste met on February 3, 2003 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; 2013 Winder Decl. ¶¶ 33, 35. He also wanted Winder to state that appointment of a receiver was unnecessary because improvements and progress were being made, and “all issues were on the road to correction.” 2013 Winder Decl. ¶ 36. Winder stated that he refused, and appears to claim that Erste and Khabo then submitted those false affidavits. 2013 Winder Decl. ¶¶ 38–39.

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 suffering retaliation for telling the truth to the Special Master about departmental problems in meeting the court orders. The Court dismissed most of Winder's WPA claims, but determined that, given Winder's position that his disclosures constituted “one large disclosure” and the incompleteness of the record in light of that stance, the better course would be to give the parties one final opportunity to brief several issues with respect to the WPA claim: whether Winder made protected disclosures through (1) his D.C. Council testimony, (2) his conversation with Erste relating to the filing of a false affidavit, and (3) his complaint to the Inspector General regarding Erste's and Khabo's purportedly false affidavits, and, if so, whether any of these disclosures was a contributing factor in his termination.

STANDARD OF REVIEW

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 also Celotex, 477 U.S. at 323, 106 S.Ct. 2548.

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. Moreover, “[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249–50, 106 S.Ct. 2505 (citations omitted). Summary judgment, then, is appropriate if the non-movant fails to offer “evidence on which the jury could reasonably find for the [non-movant].” Id. at 252, 106 S.Ct. 2505.

DISCUSSION

A. Applicable Law

The DC WPA allows District employees to “function as the ‘eyes and ears' of District taxpayers,” Saint–Jean v. District of Columbia, 846 F.Supp.2d 247, 260 (D.D.C.2012) (quoting Williams v. District of Columbia, 9 A.3d 484, 490 (D.C.2010)), by prohibiting retaliation against employees based on protected disclosures. SeeD.C.Code § 1–615.51–54. DC WPA claims are analyzed under a burden shifting analytical framework. Coleman v. District of Columbia, 893 F.Supp.2d 84, 100–01 (D.D.C.2012) (citing Johnson v. District of Columbia, 935 A.2d 1113 (D.C.2007)). A plaintiff must demonstrate that (1) he made a protected disclosure, (2) his supervisor took or threatened to take a prohibited personnel action against him, and (3) the protected disclosure was a contributing factor to the retaliation or prohibited personnel action. Tabb v. District of Columbia, 605 F.Supp.2d 89, 98 (D.D.C.2009) (citing Crawford v. District of Columbia, 891 A.2d 216, 218–19 (D.C.2006)). The plaintiff carries the initial burden of establishing these elements. Coleman, 893 F.Supp.2d at 100–01. The burden then shifts to the defendant to show “by clear and convincing evidence” that the adverse employment action would have taken place even if plaintiff had not engaged in protected activity. Id. (citing Crawford, 891 A.2d at 218). Finally, plaintiff has the burden of showing that the explanation is pretext. Id. Accordingly, “[l]iability under the [DC WPA] is measured under a ‘but for’ analysis.” Johnson, 935 A.2d at 1119 (quoting Crawford, 891 A.2d at 222).

Under the version of the DC WPA applicable to the 2003 events at issue,² “protected disclosure” means any disclosure of information, not specifically prohibited by statute, by an employee to a supervisor or a public body that the employee reasonably believes is evidence of: (A) gross mismanagement; (B) gross misuse or waste of public resources or funds; (C) abuse of authority in connection with the administration of a public program or the execution of a public contract; (D) a violation of law, or a contract term between the District and a government contractor which is not of a merely technical or minimal nature; or (E) a substantial and specific danger to the public health and safety. D.C.Code § 1–615.52(a)(6). Importantly, whether a disclosure is eligible for protection under the DC WPA “hinges not upon whether the [conduct disclosed] was ultimately determined to be illegal, but whether [the declarant] reasonably believed it was illegal.” Freeman v. District of Columbia, 60 A.3d 1131, 1140–42 (D.C.2012) (internal citations and quotations omitted). The DC WPA does not define “reasonable belief,” but the D.C. Court of Appeals has defined it as whether “a disinterested observer with knowledge of the essential...