BATTLES v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY et al

Filing 41

MEMORANDUM AND OPINION. Signed by Judge Emmet G. Sullivan on 3/21/2019. (lcegs3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SHELDON BATTLES
v.

Plaintiff,

WASHINGTON METROPOLITAN AREA
TRANSIT AUTHORITY,

No. 16-cv-1655 (EGS)

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 13; 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., 272 F. Supp. 3d 5 (D.D.C.
2017).

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

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. Id. In that role, Mr. Battles supervised Rhonda GainesKelsey, 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 twomonth long relationship, they exchanged nude pictures. Id. at 6.
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. Id. 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 sevenpage 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. GainesKelsey admitted that her sexual relationship with Mr. Battles
was consensual, and she “welcome[d] the receipt of the nude,
sexual picture from Mr. Battles[.]” Id. The report also found
that Ms. Gaines-Kelsey’s five-day suspension was warranted. Id.
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, 272 F. Supp. 3d at 17. Id. The Court granted
in part and denied in part WMATA’s motion to dismiss the
complaint. Id. In doing so, this action proceeded against WMATA

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, 272 F.
Supp. 3d at 17.
2

7

as the sole defendant. Id. The remaining claim was Mr. Battles’
wrongful-termination (breach of contract) claim. Id. 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, 477 U.S. 317, 325 (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, 658 F. Supp. 2d 217,
224 (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, 742 F. Supp. 2d 40,
50 (D.D.C. 2010), aff’d, 473 F. App’x 1 (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., 706 F. Supp. 2d 86, 94
(D.D.C. 2010) (quoting Tsintolas Realty Co. v. Mendez, 984 A.2d
181, 187 (D.C. 2009)); see also Donovan v. U.S. Postal Serv.,
530 F. Supp. 872, 890 (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

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, 299 F.3d 887, 891 (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., 167 F. Supp. 3d 118, 129 (D.D.C. 2016) (applying
District of Columbia law to breach of contract claims).
3

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., 872 F.
Supp. 1069, 1073 (D.D.C. 1995), aff’d, 79 F.3d 169 (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., 620 A.2d 265, 269 (D.C. 1993); see also Strass v. Kaiser
Found. Health Plan of Mid-Atl., 744 A.2d 1000, 1011 (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., 129 F.3d
1283, 1290 (D.C. Cir. 1997). 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., 295 F.3d 36, 39 (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., 1 F. Supp. 2d 1, 10 (D.D.C. 1998). This immunity applies
except where expressly waived by statute, id., 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
4

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, 496 A.2d 587, 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., 256 F. Supp. 3d 30, 33 (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. Id. at 35 (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., 901 F.2d 135, 138 (D.C. Cir. 1990) (emphasis in
original); see also Martin v. Wash. Metro. Area Transit Auth.,
273 F. Supp. 2d 114, 119 (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,
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.
5

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, 744 A.2d at 1013 (language in employer’s policy manual
may form an implied contract between employer and employee); see
also Duffy v. Duffy, 881 A.2d 630, 637 (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.,
183 F.3d 855, 858 (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. 3311 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.,
818 F.2d 58, 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 crossmotions 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., 770 F. Supp. 2d 32, 43 (D.D.C. 2011); see also Nat’l
R.R. Passenger Corp. v. Bos. & Maine Corp., 850 F.2d 756, 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, 984 A.2d at 187 (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

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.
6

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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, 750 F.3d 863,
876 (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 workrelated 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
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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. GainesKelsey. 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. GainesKelsey 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
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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 crossmotion. 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, 683 F. Supp. 2d 33, 41, 47-48 (D.D.C.
2010) (declining to entertain new allegations at the summary
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judgment stage that were not raised in the complaint), aff’d,
748 F.3d 1285 (D.C. Cir. 2014)); Sharp v. Rosa Mexicano, D.C.,
LLC, 496 F. Supp. 2d 93, 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

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 lesserincluding 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.” Id. 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., 48 F. Supp. 3d 110, 129 (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.
7

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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 id. 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
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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

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