UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SHELDON BATTLES

Plaintiff, v. No. 16-cv-1655 (EGS) WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY,

Defendant.

MEMORANDUM OPINION

Plaintiff Sheldon Battles (“Mr. Battles”), proceeding pro

se, brings this action against defendant Washington Metropolitan

Area Transit Authority (“WMATA”), arising out of the termination

of his employment. In November 2015, WMATA terminated

Mr. Battles from his supervisory position as Assistant

Superintendent of Bus Service Operations at the West Ox Bus

Division after determining that he violated: (1) WMATA’s

Nepotism/Favoritism Policy for engaging in a consensual sexual

relationship with a female subordinate; and (2) WMATA’s Sexual

Harassment Policy for inappropriate conduct with a female

employee in 2009. An internal investigation revealed that two

other female subordinates accused him of sexual harassment in

2015. While he denies those allegations, Mr. Battles admits to

engaging in a consensual sexual relationship with a female subordinate. He contends that his termination was both false and

pretextual.

Pending before the Court are the parties’ cross-motions for

summary judgment. Upon careful consideration of the parties’

submissions, the applicable law, and the entire record herein,

the Court concludes that there are no material facts in dispute,

and WMATA lawfully terminated Mr. Battles for cause. Therefore,

the Court GRANTS WMATA’s motion for summary judgment and DENIES

Mr. Battles’ cross-motion for summary judgment.

I. Background

The material facts in this case are undisputed. See, e.g.,

Def.’s Statement of Material Facts (“SOMF”), ECF No. 33-1 at 1-

3; Pl.’s SOMF, ECF No. 34 at 9-11; Def.’s Reply to Pl.’s SOMF,

ECF No. 38-1 at 1-4. 1 The Court will only refer to those facts as

necessary to resolve the cross-motions because the Court assumes

the parties’ familiarity with the factual background and

procedural history. The Court summarized the factual allegations

in this case in greater detail in its prior opinion. See Battles

v. Wash. Metro. Area Transit Auth.,

(D.D.C.

2017).

1 When citing electronic filings throughout this Opinion, the Court cites to the ECF page number, not the page number of the filed document. 2 A. Factual Background

Between 2007 and 2015, Mr. Battles earned a series of

promotions at WMATA. Compl., ECF No. 1 ¶ 8. He became Assistant

Superintendent of Bus Services Operations in the West Ox Bus

Division on March 22, 2015. Def.’s SOMF, ECF No. 33-1 at 1 ¶ 1.

He served in that supervisory position for more than eight

months.

In that role, Mr. Battles supervised Rhonda Gaines-

Kelsey, a female employee. See Compl., ECF No. 1 ¶¶ 9, 16-17.

Beginning in May 2015 and ending in July 2015, Mr. Battles and

Ms. Gaines-Kelsey engaged in a consensual sexual relationship.

See Investigative Report, ECF No. 33-9 at 2, 6. During the two-

month long relationship, they exchanged nude pictures.

.

At some point in September 2015 or October 2015,

Mr. Battles imposed a five-day suspension on Ms. Gaines-Kelsey

because she violated WMATA’s Absenteeism Policy.

On October

1, 2015, Ms. Gaines-Kelsey lodged an internal complaint of

sexual harassment against him in WMATA’s Office of Civil Rights,

alleging that Mr. Battles retaliated against her after she

refused to welcome his advances. Def.’s SOMF, ECF No. 33-1 ¶ 6;

see also Gaines-Kelsey’s Formal Compl., ECF No. 33-8 at 2-3.

Soon thereafter, WMATA’s Office of Equal Employment Opportunity

(“OEEO”) conducted an investigation into Ms. Gaines-Kelsey’s

allegations, and the OEEO investigator, Devin Walker,

interviewed Mr. Battles, Ms. Gaines-Kelsey, and seven other

3 WMATA employees, including Antoinette White and Renee Duren.

Def.’s SOMF, ECF No. 33-1 ¶ 7.

On November 9, 2015, the OEEO investigator issued a seven-

page investigative report, finding that “[t]here [was]

insufficient evidence to support a probable cause finding of

sexual harassment in [Ms. Gaines-Kelsey’s] complaint.”

Investigative Report, ECF No. 33-9 at 6. In fact, Ms. Gaines-

Kelsey admitted that her sexual relationship with Mr. Battles

was consensual, and she “welcome[d] the receipt of the nude,

sexual picture from Mr. Battles[.]”

The report also found

that Ms. Gaines-Kelsey’s five-day suspension was warranted.

The investigation, however, revealed that Ms. White and Ms.

Duren accused Mr. Battles of sexual harassment. Id. at 4-5, 7.

The report stated that those “two female Bus Operators . . .

alleged that they were regularly subjected to sexual

propositions and personal compliments from Mr. Battles.” Id. at

7. The investigation also revealed another incident:

[T]he evidence shows that on February 23, 2009, OEEO found that Mr. Battles, who was a Street Supervisor at that time, violated WMATA’s Sexual Harassment policy when he asked a female employee what type of underwear she was wearing. OEEO recommended that Mr. Battles be suspended for two days for his actions and to register for WMATA’s Sexual Harassment Training course.

Id. (emphasis added). The OEEO investigator forwarded the

findings regarding the sexual relationship between Mr. Battles

4 and Ms. Gaines-Kelsey to Robert Potts, Acting Assistant General

Manager, with a recommendation that “appropriate disciplinary

action be taken against Mr. Battles for engaging in an

inappropriate, personal relationship with [a female subordinate]

of a sexual nature.” Id.

Mr. Battles received a letter, dated November 10, 2015,

from the OEEO informing him that the investigation found that

“[t]here was insufficient evidence to support a probable cause

finding of sexual harassment in [Ms. Gaines-Kelsey’s]

complaint.” Pl.’s Ex. 1, ECF No. 34-1 at 1. As stated in the

letter, the evidence showed that his personal relationship with

Ms. Gaines-Kelsey was “inconsistent with WMATA’s

Policy/Instruction 7.8.2 ‘Nepotism/Favoritism,’ Section 5.01 and

5.02.” Id. The letter explained that Mr. Battles, who was in a

“supervisory position,” “demonstrated poor judgment by engaging

in an inappropriate, personal relationship of a sexual

nature[.]” Id. at 2-3. The letter informed him of the sexual

harassment allegations made by Ms. White and Ms. Duren, and the

OEEO’s findings regarding his sexual relationship with

Ms. Gaines-Kelsey were being forwarded to Mr. Potts. Id.

On November 27, 2015, WMATA terminated Mr. Battles. E.g.,

Def.’s SOMF, ECF No. 33-1 ¶ 11; Pl.’s SOMF, ECF No. 34 ¶ 10. The

termination letter explicitly cited Mr. Battles’ violation of

WMATA’s Sexual Harassment Policy as to the sexual harassment of

5 a female employee in 2009, and his violation of WMATA’s

Nepotism/Favoritism Policy as to his sexual relationship with

Ms. Gaines-Kelsey. Letter from Summon Cannon, Superintendent,

West Ox Division, to Mr. Battles (Nov. 27, 2015), ECF No. 33-3

at 1-2 (hereinafter “Term. Ltr.”).

On December 16, 2015, Mr. Battles challenged his

termination through WMATA’s grievance process by filing an

Employee Dispute Resolution Adverse Action Grievance to the

Department of Human Resources pursuant to WMATA’s

Policy/Instruction 7.3.4 (the “Employee Dispute Resolution

Policy”) and WMATA’s Policy/Instruction 7.8.5 (the “Disciplinary

Actions Policy”). See, e.g., Battles’ Grievance, ECF No. 33-10

at 1-10; Letter from Tawnya Moore-McGee, Chief Human Res.

Officer, to Battles (Jan. 21, 2016), ECF No. 33-11 at 1;

Disciplinary Actions Policy, ECF No. 33-6 at 4 (referencing the

Employee Dispute Resolution Policy); Employee Dispute Resolution

Policy, ECF No. 33-7 at 1-6.

To review, investigate, and respond to Mr. Battles’

grievance, WMATA appointed a reviewing officer, Shiva K. Pant,

on January 21, 2016. Def.’s SOMF, ECF No. 33-1 ¶ 13. The

reviewing officer upheld WMATA’s termination decision because,

inter alia: (1) Mr. Battles’ sexual relationship with Ms.

Gaines-Kelsey was “unacceptable for an individual in a

supervisory position”; (2) “[p]rior sexual harassment

6 allegations . . . were acknowledged by Mr. Battles”;

(3) “Mr. Battles was found to be in violation of [WMATA’s]

Nepotism/Favoritism Policy”; and (4) he “had earlier also been

found to be in violation of WMATA’s Sexual Harassment Policy.”

Mem. from Shiva Pant to Tawnya Moore-McGee, Chief Human Res.

Officer (Feb. 19, 2016), ECF No. 33-12 at 1.

B. Procedural History

On August 16, 2016, Mr. Battles filed this action against

WMATA and two of its employees, Summon Cannon and Devin Walker

(the “Individual Defendants”), asserting claims for wrongful

termination (breach of contract), wrongful termination in

violation of public policy, defamation, intentional infliction

of emotional distress, and negligent infliction of emotional

distress. See generally Compl., ECF No. 1. 2 On September 28,

2017, this Court granted the Individual Defendants’ motion to

dismiss. Battles,

.

The Court granted

in part and denied in part WMATA’s motion to dismiss the

complaint.

In doing so, this action proceeded against WMATA

2 Mr. Battles filed an amended complaint on April 24, 2017 without WMATA’s written consent or leave of the Court. See generally Am. Compl., ECF No. 19; see also WMATA’s Mot. to Dismiss, ECF No. 22 at 1 (citing Fed. R. Civ. P. 15). WMATA and the Individual Defendants moved to dismiss the amended complaint. See Individual Defs.’ Mot. to Dismiss, ECF No. 21; see also WMATA’s Mot. to Dismiss, ECF No. 22 at 1. On September 28, 2017, the Court denied both motions as moot. Battles,

. 7 as the sole defendant.

The remaining claim was Mr. Battles’

wrongful-termination (breach of contract) claim.

Thereafter,

the parties filed cross-motions for summary judgment. Those

motions are ripe and ready for the Court’s adjudication.

II. Legal Standard

Under Federal Rule of Civil Procedure 56, “[t]he court

shall grant summary judgment if the movant shows 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);

see also Celotex Corp. v. Catrett,

(1986). In

ruling on cross-motions for summary judgment, the court shall

grant summary judgment only if one of the moving parties is

entitled to judgment as a matter of law upon material facts that

are not genuinely disputed. See Citizens for Responsibility &

Ethics in Wash. v. U.S. Dep’t of Justice,

(D.D.C. 2009) (citation omitted). Summary judgment will be

granted, therefore, if the plaintiff fails to submit evidence

that creates a genuine factual dispute or entitlement to

judgment as a matter of law. Adair v. Solis,

(D.D.C. 2010), aff’d,

(D.C. Cir. 2012).

III. Analysis

The Court begins with the issue of whether there was an

implied employment contract between Mr. Battles and WMATA based

on the relevant policies, and then concludes that the parties’

8 cross-motions present no genuinely disputed material facts that

would preclude a grant of summary judgment in this case.

A. The Relevant WMATA Policies Created an Implied Employment Contract Between Mr. Battles and WMATA

Mr. Battles’ remaining claim is a wrongful-termination

(breach of contract) cause of action, which is predicated on the

existence of an implied employment contract. See Compl., ECF No.

1 ¶¶ 26-31. 3 He bears the burden of proving the necessary

elements of a breach of contract: “(1) a valid contract between

the parties; (2) an obligation or duty arising out of the

contract; (3) a breach of that duty; and (4) damages caused by

the breach.” Mesumbe v. Howard Univ.,

(D.D.C. 2010) (quoting Tsintolas Realty Co. v. Mendez,

(D.C. 2009)); see also Donovan v. U.S. Postal Serv.,

(D.D.C. 1981) (“[T]he elements of an

express and an implied contract are the same.” (citation

omitted)). For the reasons stated below, the Court agrees that

there was an implied contract between Mr. Battles and WMATA, but

3 The parties do not indicate the governing law in this action. See generally Def.’s Mot. for Summ. J. (“Def.’s MSJ”), ECF No. 33; Pl.’s Resp. & Mot. for Summ. J. (“Pl.’s MSJ”), ECF No. 34; Def.’s Reply, ECF No. 38. The Court will apply District of Columbia law to Mr. Battles’ breach of contract claim. See Republican Nat. Comm. v. Taylor,

(D.C. Cir. 2002) (“[C]ourts generally apply the law of the jurisdiction in which they sit.”); see also Robinson v. Wash. Metro. Area Transit Auth.,

(D.D.C. 2016) (applying District of Columbia law to breach of contract claims). 9 Mr. Battles has failed to prove that WMATA breached its

obligations.

“Under District of Columbia law, in the absence of an

express contract, a court may imply a contract from the course

of the parties’ conduct.” Grunseth v. Marriott Corp.,

(D.D.C. 1995), aff’d,

(D.C. Cir.

1996). “[A]n implied contract may arise from the language of an

employee handbook or manual[.]” Smith v. Union Labor Life Ins.

Co.,

(D.C. 1993); see also Strass v. Kaiser

Found. Health Plan of Mid-Atl.,

(D.C. 2000)

(recognizing that “contractual rights may arise from language in

employee manuals.”). Thus, “like any District of Columbia

employer WMATA can bind itself contractually in a personnel

manual[.]” Beebe v. Wash. Metro. Area Transit Auth.,

(D.C. Cir. 1997). 4

4 WMATA does not assert a sovereign immunity defense as to Mr. Battles’ breach of contract claim—a defense that can be traced to WMATA’s creation. See generally Def.’s MSJ, ECF No. 33; Def.’s Reply, ECF No. 38. WMATA was established by virtue of the Compact signed by Maryland, Virginia and the District of Columbia, and agreed upon by Congress (the “Compact”). D.C. Code § 9–1107.01; see also Watters v. Wash. Metro. Area Transit Auth.,

(D.C. Cir. 2002). Congress and the Compact’s individual signatories have conferred on WMATA the same Eleventh Amendment sovereign immunity that each individual signatory enjoys. Lucero-Nelson v. Wash. Metro. Area Transit Auth.,

(D.D.C. 1998). This immunity applies except where expressly waived by statute,

and Section 80 of the Compact, partially waives WMATA’s Eleventh Amendment immunity. D.C. Code § 9–1107.01(80). “Section 80 expressly provides for direct actions where WMATA is charged with a tort 10 “For an enforceable contract to exist, there must be both

(1) agreement as to all material terms; and (2) intention of the

parties to be bound.” Georgetown Entm’t Corp. v. District of

Columbia,

, 590 (D.C. 1985). Here, the parties do

not dispute the existence of an implied contract. See generally

Def.’s MSJ, ECF No. 33; Pl.’s MSJ, ECF No. 34; Def.’s Reply, ECF

No. 38. Neither do they dispute that Mr. Battles’ claim is

premised on an implied employment contract between him and WMATA

that appears to be inferred from the language of the relevant

policies, including WMATA’s Employee Dispute Resolution Policy

and its Disciplinary Actions Policy. See Def.’s MSJ, ECF No. 33

at 1, 5-6; see also Pl.’s MSJ, ECF No. 34 at 5.

Because the issue of “[w]hether a contract exists is a

question of law for the Court to resolve[,]” Dawson v. Wash.

Metro. Area Transit Auth.,

(D.D.C. 2017),

the Court next analyzes the plain language of WMATA’s policies

to determine whether those policies created an implied contract

between Mr. Battles and WMATA.

(evaluating the plain

language of certain policies to determine the existence of a

contract).

or a breach of its contracts[.]” Queen v. Wash. Metro. Area Transit Auth.,

(D.C. Cir. 1990) (emphasis in original); see also Martin v. Wash. Metro. Area Transit Auth.,

(D.D.C. 2003) (defense of sovereign immunity was inapplicable to plaintiff’s breach of contract claim). 11 1. Relevant Policies Pertaining to Termination

At the time of Mr. Battles’ employment, certain policies

governed disciplinary actions, termination, and the employee

dispute resolution process. See, e.g., Def.’s MSJ, ECF No. 33 at

6; Def.’s SOMF, ECF No. 33-1 ¶¶ 2-5; Pl.’s SOMF, ECF No. 34 ¶¶

2-4, 11. Under Section 5.01 of WMATA’s Policy/Instruction

7.2.1/1 (“Policy 7.2.1/1”), WMATA was “not obligated to

guarantee continued employment under any circumstances.” Policy

7.2.1/1, ECF No. 33-13 at 3, § 5.01. It also provided that

“Regular Employees may be dismissed only for cause.” Id.

(emphasis added). “Cause for dismissal include[d], but [was] not

limited to, job performance and/or conduct by an Employee which

[was] less than satisfactory.” Policy 7.2.1/1, ECF No. 33-13 at

3, § 5.01 (emphasis added). 5

2. Disciplinary Actions Policy

As outlined in WMATA’s Disciplinary Actions Policy, a

regular employee, like Mr. Battles, was subjected to certain

disciplinary actions if his “job performance and/or conduct may

be less than full satisfactory.” Disciplinary Actions Policy,

5 A “Regular Employee” was defined as “an Employee hired by [WMATA] to work on a regular basis for no specific duration and is entitled to certain [WMATA] benefits as indicted below.” Policy 7.2.1/1, ECF No. 33-13 at 1, § 3.02. In this case, WMATA has conceded that Mr. Battles qualified as a regular employee rather than an “at-will” employee; therefore, his employment was terminable only for cause. See Def.’s MSJ, ECF No. 33 at 5 n.1, 6. 12 ECF No. 33-6 at 1, § 1.01 (emphasis added). WMATA Employees were

“responsible for familiarizing themselves and observing all

[WMATA] rules, policies, guidelines, and procedures,

satisfactorily perform the duties and responsibilities of their

position and to understand the performance expectation for the

position.” Id. at 1, § 3.02 (emphasis added). Where an

employee’s job performance or conduct became “less than full

satisfactory,” the employee was subjected to the following

disciplinary actions: (1) oral warning, (2) written warning,

(3) suspension, (4) disciplinary demotion, (5) dismissal. Id. at

2-4, § 4.02(a). The Disciplinary Actions Policy used the terms

“dismissal” and “termination” interchangeably. See id. at 1-4.

Termination was warranted “if there [were] any further instances

of unacceptable job performance and/or conduct after an employee

return[ed] from suspension[.]” Id.

Generally, the Disciplinary Actions Policy was progressive

because suspension was a precondition for termination. See,

e.g., id. at 4 § 4.02(a)(5); id. at 3 § 4.02(a)(3) (“[A] written

warning, or warnings, will be issued prior to taking the

disciplinary action of suspension.”); Sexual Harassment Policy,

ECF No. 33-4 at 3 (employees were subjected to “progressive

discipline” for sexual harassment); Nepotism/Favoritism Policy,

ECF No. 33-5 at 3 (employees were subjected to “discipline, up

to and including termination”).

13 WMATA, however, had discretion to deviate from the

progressive disciplinary policy under Section 4.02(a)(5).

Disciplinary Actions Policy, ECF No. 33-6 at 4 § 4.02(a)(5).

That section provided: “[I]mmediate dismissal may also result if

the severity of the inappropriate behavior or conduct [was] such

that immediate management action [was] necessary with or without

a prior record of oral or written warnings or suspension(s).”

Id. at 4 § 4.02(a)(5). In other words, an employee could have

been terminated without suspension. See id.

Finally, a terminated employee had an opportunity to be

heard before his termination, if circumstances permitted it. See

id. (“If circumstances do not permit a written response by the

employee prior to his [or] her last day at work, a dismissed

employee may file a grievance under [the Employee Dispute

Resolution Policy] within the time limit provided in that

policy.”). And the terminated employee was entitled to WMATA’s

employee dispute resolution process to contest his termination.

Id. The latter is relevant here because Mr. Battles challenges

this process. See Pl.’s MSJ, ECF No. 34 at 1.

3. Employee Dispute Resolution Policy

A terminated employee, like Mr. Battles, was entitled to

WMATA’s employee dispute resolution process. See Def.’s SOMF,

ECF No. 33-1 ¶ 5; see also Pl.’s SOMF, ECF No. 34 ¶ 4. The

Employee Dispute Resolution Policy provided that an employee

14 could submit a “formal grievance challenging an action which

result[ed] in an economic loss in current wages, salary, and/or

leave by the employee.” Employee Dispute Resolution Policy, ECF

No. 33-7 at 1 § 3.01(a) (emphasis in original), 2 §§ 4.03, 5.01.

While “disciplinary actions associated with the resolution of

[sexual harassment] complaints” were ineligible for review under

the policy, id. at 1 § 2.02(c), an employee was eligible for

review of his dismissal by submitting a formal “Adverse Action

Grievance” within the prescribed time limits to the Chief Human

Resources Officer. Id. at 1 § 3.01(a), 3-6.

After a terminated employee filed a timely grievance, the

Chief Human Resources Officer had to acknowledge it, submit it

to the General Manager, and the General Manager would designate

a “disinterested Officer or Department Head” to review the

grievance and render a decision. Id. at 6. The Employee Dispute

Resolution Policy made clear that “[t]his decision is

administratively final.” Id. (emphasis in original).

Upon review of the relevant policies, the Court concludes

that the plain language of those policies demonstrates that

there was an implied contract between Mr. Battles and WMATA. It

is clear that: (1) the relevant policies were “intended by

[WMATA] to govern the rights and responsibilities of [WMATA]”

and Mr. Battles; and (2) the actions of WMATA and Mr. Battles

showed an intent to be bound by the terms in those policies.

15 Strass,

(language in employer’s policy manual

may form an implied contract between employer and employee); see

also Duffy v. Duffy,

(D.C. 2005) (parties’

actions may demonstrate mutual assent to the contract terms).

Here, the written policies supply proof of the parties’

agreement to the terms therein. See Ekedahl v. COREStaff, Inc.,

(D.C. Cir. 1999) (“Proof of a meeting of the

minds may be found . . . in the written agreement[.]”). The

parties also demonstrated their mutual assent to the terms of

the relevant policies because Mr. Battles took advantage of the

employee dispute resolution process by submitting a formal

grievance. See Battles’ Grievance, ECF No. 33-10 at 1-10.

WMATA’s Chief Human Resources Officer acknowledged receipt of

his grievance and later assigned a reviewing officer for the

administrative review. See Letter from Tawnya Moore-McGee, Chief

Human Res. Officer, to Mr. Battles (Jan. 21, 2016), ECF No. 33-

11 at 1). The reviewing officer rendered a final administrative

decision and accepted the underlying rationale for termination.

See Mem. from Shiva Pant to Tawnya Moore-McGee, Chief Human Res.

Officer (Feb. 19, 2016), ECF No. 33-12 at 1. Accordingly, it is

clear that there was an implied contract between WMATA and Mr.

Battles based on their respective rights and obligations as set

forth in the relevant policies. See McConnell v. Howard Univ.,

, 62–63 (D.C. Cir. 1987) (“It is well established

16 that, under District of Columbia law, an employee handbook . . .

defines the rights and obligations of the employee and the

employer, and is a contract enforceable by the courts.”).

B. WMATA Is Entitled to Summary Judgment as to Mr. Battles’ Breach of Contract Claim

Having found that there was an implied contract between

WMATA and Mr. Battles, the Court concludes that the cross-

motions do not present genuinely disputed material facts that

would preclude a grant of summary judgment in this case.

Mr. Battles acknowledges that there is no dispute as to the

existence of a contract. Pl.’s MSJ, ECF No. 34 at 5. But he

contends, in the alternative, that “there obviously exist

genuine issues of material fact[.]” Id. at 8.

The law in this Circuit is clear: “[I]f there is no dispute

as to what occurred between the parties, then whether the agreed

facts brought an enforceable contract into existence is a

question of law for the court.” C. Robert Suess v. Fed. Deposit

Ins. Corp.,

(D.D.C. 2011); see also Nat’l

R.R. Passenger Corp. v. Bos. & Maine Corp.,

, 764

n.5 (D.C. Cir. 1988) (noting that there were no genuine issues

of material fact where the parties agreed to the existence of

the agreement). In this case, there are no genuine issues of

material fact as to whether WMATA breached the contract because

the parties do not dispute the material facts or the existence

17 of a contract. See generally Def.’s MSJ, ECF No. 33; Pl.’s MSJ,

ECF No. 34; Def.’s Reply, ECF No. 38.

Neither is there a dispute that Mr. Battles was entitled to

the grievance process provided in the Employee Dispute

Resolution Policy. WMATA fulfilled its obligations under said

policy. He, therefore, cannot establish an essential element for

his claim: breach. See Mendez,

(discussing the

elements of breach of contract). Instead, he makes two arguments

to support his position that his termination was “false” and

“pretextual.” See Pl.’s MSJ, ECF No. 34 at 4. First, he

maintains that he did not violate the Nepotism/Favoritism Policy

because WMATA “cannot point to one instance of favoritism

bestowed upon the female subordinate employee accuser” and WMATA

admitted that Ms. Gaines-Kelsey’s five-day suspension was

warranted. Id. at 7. Next, he argues that his termination cannot

be based on his violation of the Sexual Harassment Policy

because he was “exonerated” of the “complaint of sexual

harassment[.]” Id.

WMATA responds that Mr. Battles ignores WMATA management’s

determination that his “behavior toward two other female

subordinates, coupled with his poor judgment of having a sexual

relationship with another subordinate, justified his termination

based on” his violations of the Sexual Harassment Policy and the

Nepotism/Favoritism Policy. Def.’s Reply, ECF No. 38 at 3.

18 The Court is not persuaded by Mr. Battles’ arguments. He

has produced no evidence to support his position that WMATA’s

stated reasons for terminating him were false and pretextual. To

the contrary, WMATA has presented sufficient evidence that

Mr. Battles violated both the Sexual Harassment Policy and the

Nepotism/Favoritism Policy.

1. The Nepotism/Favoritism Policy Violation

Mr. Battles’ argument—that his consensual sexual

relationship with Ms. Gaines-Kelsey cannot support a violation

of the Nepotism/Favoritism Policy—demonstrates his fundamental

misunderstanding of that policy. Section 5.01 of the

Nepotism/Favoritism Policy provides:

Employees who are . . . close associates are permitted to work in the same Metro unit or work location provided no direct reporting or supervisory/managerial relationship exists between them that would allow either employee to exert influence over the other regarding work assignment, compensation, benefits, overtime or compensatory time assignments, or career progress in general.

Nepotism/Favoritism Policy, ECF No. 33-5 at 2, § 5.01 (emphasis

added). 6 By his own words, this action involves “an approximately

6 The term “Close Associates” means employees who “have or had a close personal . . . relationship with the human resources management decision maker of such a nature or intimacy as to impair, or give the appearance of impairing, the decision maker’s ability to exercise independent and unbiased judgment toward such employees or applicants.” Nepotism/Favoritism Policy, ECF No. 33-5 at 1-2, § 3.04. 19 two month long consensual sexual relationship between

[Mr. Battles] and a subordinate female employee.” Pl.’s MSJ, ECF

No. 34 at 3. The Court cannot ignore his own admissions of fact

that he was “involved in a consensual sexual relationship with

one of his subordinate female employees.” Compl., ECF No. 1 ¶ 9;

see also El Paso Nat. Gas Co. v. United States,

(D.C. Cir. 2014) (“[F]actual allegations in operative

pleadings are judicial admissions of fact.”).

Moreover, WMATA’s documentary evidence demonstrates that

Ms. Gaines-Kelsey admitted that her sexual relationship with

Mr. Battles was consensual, and they exchanged nude pictures

during their relationship. Investigative Report, ECF No. 33-9 at

6. Therefore, the Court agrees with WMATA that Mr. Battles

violated Section 5.01 because he engaged in a “close personal

relationship” of a sexual nature with a “close associate” whom

he supervised. See Nepotism/Favoritism Policy, ECF No. 33-5 at

1-2, §§ 3.04, 5.01.

The Court is persuaded by WMATA’s argument that Mr. Battles

violated Section 5.02 of the Nepotism/Favoritism Policy, which

states that “[e]mployees who are . . . close associates must

avoid even indirect influences over each other’s work or work-

related activity. Examples of this include . . . evaluation or

review of disciplinary circumstance[.]” Id. § 5.02. It is

undisputed that Mr. Battles was a supervisor who disciplined

20 Ms. Gaines-Kelsey, and he could have exerted his influence over

her “disciplinary circumstance” because managers, like him, were

tasked with ensuring that their subordinates adhered to the

applicable policies, including the Absenteeism Policy and the

Disciplinary Actions Policy. See Investigative Report, ECF No.

33-9 at 6 (“[F]or a first offense to [the Absenteeism] policy,

supervisors must deny pay and provide a written warning to the

employee who fail[s] to provide timely a completed doctor’s

certification for an absence whatever duration.”).

WMATA correctly points out that Mr. Battles ignores the

definition of “close associates” when he argues that he did not

violate the Nepotism/Favoritism Policy because he was in “no way

related—not by blood, lineage, or marriage”—to Ms. Gaines-

Kelsey. See Pl.’s MSJ, ECF No. 34 at 7; see also Def.’s Reply,

ECF No. 38 at 3. He contends that WMATA “cannot point to one

instance of favoritism” to show that he was in violation of the

Nepotism/Favoritism Policy. Pl.’s MSJ, ECF No. 34 at 7. Although

“favoritism” is a defined term under the policy, WMATA was not

required to show that Mr. Battles offered a favor to Ms. Gaines-

Kelsey under the policy because an employee violated the

Nepotism/Favoritism Policy if: (1) the supervisor exerted

influence over a close associate as outline in Section 5.01; and

(2) the supervisor did not avoid indirect influence over the

close associate as provided in Section 5.02. See

21 Nepotism/Favoritism Policy, ECF No. 33-5 at 2, §§ 5.01, 5.02.

Mr. Battles’ other argument is unavailing. He contends that

WMATA breached its obligations under the relevant policies

because he “never received any notice, verbal or in writing, for

having violated the [Nepotism/Favoritism Policy]; and therefore,

was not afforded an opportunity for redress through the

established Employee Dispute Resolution process.” Pl.’s MSJ, ECF

No. 34 at 7. WMATA correctly points out that Mr. Battles asserts

a new claim regarding his alleged “lack of notice” for the

nepotism/favoritism charge for the first time in his cross-

motion. See, e.g., Def.’s Reply, ECF No. 38 at 3; Pl.’s MSJ, ECF

No. 34 at 4 (“[WMATA] failed to accord him due process on the

charge of Nepotism/Favoritism as their stated cause for

terminating his employment.”); Pl’s SOMF, ECF No. 34 at 10 ¶ 8

(“No written notice or verbal, of the charge of

nepotism/favoritism was presented to [him].”).

Although Mr. Battles alleges that he was unaware of the

Nepotism/Favoritism Policy and the charge of that policy, see

Compl., ECF No. 1 ¶¶ 23-24, Mr. Battles did not assert a due

process claim in his complaint. See generally Compl., ECF No. 1.

Accordingly, the Court will not consider this new claim at this

advanced stage of the litigation. See, e.g., Teltschik v.

Williams & Jensen, PLLC,

(D.D.C.

2010) (declining to entertain new allegations at the summary

22 judgment stage that were not raised in the complaint), aff’d,

(D.C. Cir. 2014)); Sharp v. Rosa Mexicano, D.C.,

LLC,

, 97 n.3 (D.D.C. 2007) (“[A] plaintiff

may not, through summary judgment briefs, raise the new

claims[.]”). Finally, even if Mr. Battles had asserted a due

process claim in his complaint, his own exhibit shows that OEEO

sent him a letter before his termination to, among other things,

“notify” him that his sexual relationship with Ms. Gaines-Kelsey

was “inconsistent” with Sections 5.01 and 5.02 of the

Nepotism/Favoritism Policy. Pl.’s Ex. 1, ECF No. 34-1 at 1. 7

7 Mr. Battles argues that WMATA “erroneously attempt[s] to treat” the Nepotism/Favoritism Policy violation as “some sort of lesser-including offense of sexual harassment.” Pl.’s MSJ, ECF No. 34 at 6. He goes on to contend that “there are no lesser- including offense[s] in this kind of administrative process. This is not a criminal offense wherein a lesser-including offense could be considered by [a] trier of the facts.”

Mr. Battles is mistaken for two reasons. First, plaintiffs have successfully put forward a lesser offense argument in the employment discrimination context. See Gibbs v. Wash. Metro. Area Transit Auth.,

(D.D.C. 2014) (finding that a jury could infer discriminatory animus by a white supervisor’s decision to initiate and investigate a more serious offense—falsification of data—for Black employees and a lesser offense—mere paperwork error—for white employees based on the same infraction). Second, Mr. Battles violated the Nepotism/Favoritism Policy based on his consensual sexual relationship with Ms. Gaines-Kelsey, see Def.’s Reply, ECF No. 38 at 2, and he separately violated the Sexual Harassment Policy based on his inappropriate conduct with a female employee in 2009. See Term. Ltr., ECF No. 33-3 at 1-2. Mr. Battles has failed to prove that WMATA treated one of his violations as a lesser offense. 23 2. The Sexual Harassment Policy Violation

Mr. Battles’ “false” and “pretextual” arguments fail for an

additional reason: Mr. Battles violated the Sexual Harassment

Policy in 2009 for “ask[ing] a female employee what type of

underwear she was wearing[.]” Investigative Report, ECF No. 33-9

at 6; see also Term. Ltr., ECF No. 33-3 at 1-2. Mr. Battles does

not deny that this incident occurred. See generally Pl.’s MSJ,

ECF No. 33. Neither does he contest the recommended suspension

stemming from his violation. See

The Sexual Harassment

Policy prohibited all forms of sexual harassment, including

“[p]ersistent sexual propositions and insults, innuendoes, jokes

or gestures of a sexual nature; recurring uninvited and

inappropriate physical contact; or repeated sexually-oriented

comments.” Sexual Harassment Policy, ECF No. 33-4 at 2. An

internal investigation into a female employee’s sexual

harassment allegations found that he violated this policy. Term.

Ltr., ECF No. 33-3 at 2. Mr. Battles offers no contradictory

evidence.

* * *

Mr. Battles has failed to prove that WMATA breached the

implied contract. WMATA’s decision to terminate Mr. Battles

complied with the applicable policies due to his violations of

the Nepotism/Favoritism Policy and the Sexual Harassment Policy.

There is no question that WMATA’s documentary evidence

24 demonstrates that Mr. Battles was terminated for cause because

his “conduct” was “less than satisfactory.” See Policy 7.2.1/1,

ECF No. 33-13 at 3, § 5.01. As an employee, he was tasked with

being familiar with all of the policies. See Disciplinary

Actions Policy, ECF No. 33-6 at 1, § 3.02. In his supervisory

position, he had the authority to enforce those policies. He was

required to comply with all of them. He failed to do so.

Therefore, the Court concludes that summary judgment should be

granted to WMATA with respect to Mr. Battles’ remaining breach

of contract claim.

IV. Conclusion

For the reasons set forth above, the Court GRANTS WMATA’s

motion for summary judgment and DENIES Mr. Battles’ cross-motion

for summary judgment. A separate Order accompanies this

Memorandum Opinion.

SO ORDERED

Signed: Emmet G. Sullivan United States District Judge March 21, 2019

25