Winder v. Erste

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ALFRED M. WINDER,

Plaintiff,
v. Civil Action No. 03-2623 (JDB)
LOUIS ERSTE, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Alfred M. Winder is a former employee of the District of Columbia's Division of

Transportation of the D.C. Public Schools ("DCPS"). He brought this action against defendants

the District of Columbia and DCPS official Louis Erste (collectively "the District"). After over a

decade of litigation, Winder has one remaining claim: breach of contract based on premature

termination. The District has [227] moved for summary judgment under Federal Rule of Civil

Procedure 56, arguing that Winder does not have an enforceable contract with DCPS. Winder

has [230] moved to strike part of the District's argument and its supporting evidence relating to

whether Winder was a member of the Executive Service and therefore employed at-will. Upon

consideration of the two motions and the parties' memoranda, 1 the applicable law, and the entire

record, and for the reasons set forth below, the Court will grant the District's motion for

summary judgment and will deny as moot Winder's motion to strike.

BACKGROUND

This case has a lengthy and complicated history, which has been set forth in several

previous opinions. See, e.g., Winder v. Erste, 934 F. Supp. 2d 109 (D.D.C. 2013); Winder v.
1
Defs.' Mot. for Summ. J. [ECF No. 227] ("Defs.' Mot."); Pl.'s Opp'n to Defs.' Mot. [ECF No. 229] ("Pl.'s
Opp'n"); Defs.' Reply to Pl.'s Opp'n [ECF No. 232] ("Defs.' Reply"); Pl.'s Mot. to Strike [ECF No. 230]; Defs.'
Opp'n to Pl.'s Mot. to Strike [ECF No. 233]; Pl.'s Reply to Defs.' Opp'n to Pl.'s Mot. to Strike [ECF No. 234].

1
Erste, 905 F. Supp. 2d 19 (D.D.C. 2012); Winder v. Erste, 767 F. Supp. 2d 179 (D.D.C. 2011);

Winder v. Erste, 566 F.3d 209 (D.C. Cir. 2009); Winder v. Erste, 511 F. Supp. 2d 160 (D.D.C.

2007); Winder v. Erste, Civ. Action No. 03-2623, 2005 WL 736639 (D.D.C. Mar. 31, 2005).

Now, Winder's sole remaining claim is that the District breached a one-year employment

contract with him when it terminated him after less than a year. The relevant, undisputed facts

follow.

In 1999, DCPS hired Winder as a general manager, overseeing the operation of

transportation services for special education students in the District. 905 F. Supp. 2d at 24.

Winder was hired to assist the District in complying with the various orders issued in Petties v.

District of Columbia, Civ. Action No. 95-0148-PLF (D.D.C.). Id. In May 2002, Winder was

informed that his position would be abolished. Id. Around this time, DCPS issued a vacancy

announcement for the position of "General Manager" in the Office of Transportation. Defs.'

Stmt. of Undisputed Facts [ECF No. 227] ¶ 3. The vacancy announcement stated that

"Appointees to this position serve at the pleasure of the appointing authority." Ex. 2 to Defs.'

Mot., General Manager Vacancy Announcement [ECF No. 227-2]. Winder applied for the

position, which had substantially similar responsibilities to his former position, and was selected.

905 F. Supp. 2d at 24. In July 2002, he received a hiring letter purporting to confirm a one-year

contract between Winder and DCPS for Winder's employment as General Manager. Ex. 1 to

Def.'s Mot., July 17, 2002 Letter from Erste to Winder [ECF No. 227-1]. The letter states in

relevant part:

13. DCPS agrees to and does hereby employ you as its General Manager of
Transportation commencing on July 22, 2002, with continued service in the
position contingent on the final results of your background check.

14. Your annual salary will be $103,530.

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 15. Salary reviews will be based upon your achievement of previously established
objectives and your performance. Your salary will be reviewed annually. The
tenure of this contract is one year from the commencement date.

16. You shall be entitled to the full range of fringe benefits including a health care
benefit plan; disability and life insurance; and an employer paid pension plan with
a contribution by DCPS of 7% of total compensation. Sick and annual leave will
be provided according to DCPS's policies and guidelines.

17. The Chief Operating Officer shall review this Agreement with the Employee
annually, and shall, no less than thirty (30) days prior to the expiration of this
Agreement or any renewal hereof, take official action determining whether or not
it is extended for an additional year or other mutually agreed upon period of time,
and notify Employee of such action in writing.

18. The Chief Operating Officer shall evaluate Employee's performance at least
once each Agreement year, using criteria, performance objectives and goals, and
an evaluation process adopted by DCPS for Employee's position, and which is
communicated to Employee no more than ninety (90) days after this Agreement is
signed.

Id. at 1-2. The letter was signed by Winder and by Louis Erste, the Chief Operating Officer of

DCPS. Id.

Shortly after beginning work in this new position, Winder's relationship with DCPS

deteriorated. See 2005 WL 736639, at *2 (D.D.C. 2005). Ultimately, on April 3, 2003—less

than a year after he was hired—Winder was terminated while on medical leave. 905 F. Supp. 2d

at 26. The following day, Winder filed a petition for appeal of his termination with the D.C.

Office of Employee Appeals ("OEA"). 511 F. Supp. 2d at 169. OEA held that Winder was a

probationary employee and that therefore he had no right of appeal to OEA. Id.

In late December 2003, Winder brought suit in this Court. See Compl. [ECF No. 1]. His

amended complaint, filed in February 2004, asserted a violation of his First Amendment rights

under 42 U.S.C. § 1983; a claim under the D.C. Comprehensive Merit Personnel Act of 1978, as

amended by the Whistleblower Reinforcement Act of 1998; defamation; tortious interference

with contract and prospective economic advantage; and claims under the D.C. and federal

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Family and Medical Leave Acts. See Am. Compl. [ECF No. 3]. In late 2005, Winder amended

his complaint for a second time to include a claim for breach of written employment contract, in

addition to other claims. See Mot. for Leave to File 2d Am. Compl. [ECF No. 59]; 2d Am.

Compl. [ECF No. 63]. After several rounds of motions practice, this Court granted summary

judgment for the District on the remaining claims, 2 with the exception of Winder's claim for lost

benefits. See 511 F. Supp. 2d at 187. Regarding Winder's breach of contract claim, the Court

found that Winder was not a contract employee with a vested interest in continued employment

through the length of his contract because "[t]he evidence submitted by defendants and plaintiff

is that plaintiff was employed . . . in the Executive Service . . . and thus [he] signed the

[employment] contract with knowledge that he served at the pleasure of the appointing

authority." Id. 178-79. In May 2008, the Court resolved the final outstanding issue of lost

benefits and awarded Winder $8,958.60, plus prejudgment interest accruing from April 3, 2003,

for Winder's unpaid salary and annual leave. See Winder v. District of Columbia, 555 F. Supp.

2d 103, 112 (D.D.C. 2008).

On appeal, the D.C. Circuit affirmed this Court on all matters, except Winder's breach of

contract claim and his related procedural due process claim. See 566 F.3d at 219. Finding that

Winder was improperly classified as a member of the Executive Service, the D.C. Circuit

remanded the contract-based claims "because [Winder's] employment classification is muddled

at best . . . [and] . . . there is a genuine question whether DCPS could terminate him when it did."

Id. at 217.

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The claims for relief that were pending at the time were "those alleging that [Winder] was subject to a
hostile work environment and terminated in violation of the First Amendment and 42 U.S.C. § 1983 (Counts I and
V); that he was terminated in retaliation for taking medical leave, in violation of the federal and D.C. Family and
Medical Leave Acts (Count III); that he was terminated in breach of a written employment contract and also lost
benefits promised under the contract (Count IX); that he was deprived of his property interest in employment in
violation of his right to procedural due process (Count X); that he was deprived of his liberty interest in pursuing
employment opportunities in his chosen profession without a name-clearing hearing (Count XI); and that he was
deprived of substantive due process (Count XII)." 511 F. Supp. 2d at 170.

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 After several subsequent decisions by this Court granting summary judgment in favor of

the District on Winder's procedural due process claim and reinstated Whistleblower Protection

Act claims, 3 Winder's sole remaining claim is whether the District breached a written

employment contract by terminating him when it did. The District has moved for summary

judgment on that claim, arguing that the purported contract signed by Erste and Winder is

unenforceable because Erste lacked authority to enter into a contract on behalf of DCPS, and

because Winder was hired into either the Career Service or the Executive Service and thus was

an at-will employee. Winder opposes the District's motion and moves to strike the District's

argument that Winder was in the Executive Service. Because the Court finds that Erste lacked

the authority to enter into a contract on behalf of DCPS and that Winder's purported employment

contract is therefore unenforceable, summary judgment will be granted in favor of the District.

The Court need not consider the District's argument that Winder was hired into either the Career

Service or the Executive Service. Hence, Winder's motion to strike the District's Executive

Service argument will be denied as moot.

LEGAL STANDARD

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). A fact is material if it could affect the outcome of the

case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if the

"evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The

party seeking summary judgment bears the initial responsibility of demonstrating the absence of

3
See 767 F. Supp. 2d 179 (denying both the District's motion to dismiss or for summary judgment and
Winder's motion for partial summary judgment on the breach of contract and violation of procedural due process
claims); 905 F. Supp. 2d 19 (granting summary judgment for the District on the procedural due process claim and
part of the reinstated D.C. Whistleblower Protection Act ("WPA") claims); 934 F. Supp. 2d 109 (granting summary
judgment for the District on the remaining DC WPA claims).

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a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (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.

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, 477 U.S.

at 255. The non-moving party must, however, establish more than the "mere existence of a

scintilla of evidence" in support of its position, id. at 252, and may not rely solely on allegations

or conclusory statements, Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). 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 (internal 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.

DISCUSSION

Winder's only remaining claim is that the District "breached the Written Employment

Contract by terminating Winder's employment prior to the expiration of the contract." 2d Am.

Compl. ¶ 127. The District argues that Winder did not have an enforceable employment

contract.

District of Columbia law has long established that, "unless a contrary contractual intent is

clearly expressed, all employment is at-will." Turner v. Federal Express Corp., 539 F. Supp. 2d

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404, 410 (D.D.C. 2008) (internal quotation marks and citation omitted); see also Reaves-Bey v.

Karr, 840 A.2d 701, 704 (D.C. 2004). Under the at-will employment doctrine, the employment

relationship can be terminated by either party for any reason, or no reason, at any time. See

Reaves-Bey, 840 A.2d at 704; Adams v. George W. Cochran & Co., 597 A.2d 28, 30 (D.C.

1991). The presumption of at-will employment applies "unless the parties state clearly their

intention to limit the employer's right to terminate, such as by a contract provision setting out

employment for a fixed term or language that allows termination only for cause." Daisley v.

Riggs Bank, N.A., 372 F. Supp. 2d 61, 67-68 (D.D.C. 2005) (citations and internal quotation

marks omitted); see also Simard v. Resolution Trust Corp., 639 A.2d 540, 551 (D.C. 1994).

Importantly, however, "[i]t is a basic principle of District law that a contracting official cannot

obligate the District to a contract in excess of his or her actual authority." District of Columbia

v. Greene, 806 A.2d 216, 222 (D.C. 2002); see also District of Columbia v. Brookstowne Cmty.

Dev. Co., 987 A.2d 442, 446 (D.C. 2010) ("A contract is void or voidable if one of the parties

lacked the capacity to enter into it. . . . For government agencies, the extent of the capacity to

contract is determined by the scope of their statutorily granted authority."). "Likewise, a person

making or seeking to make a contract with the District is charged with knowledge of the limits of

the agency's (or its agent's) actual authority." Greene, 806 A.2d at 222; see also Leonard v.

District of Columbia, 801 A.2d 82, 86 (D.C. 2002) (party attempting to contract with D.C.

government is "on constructive notice of the limits of the [government agent's] authority" and

contracting party's "claim of reasonable reliance is unavailing").

Here, the parties agree that Winder received a letter, dated July 17, 2002, from Erste

confirming Winder's hire. This letter is signed by both Erste and Winder and states that Winder's

employment commences on July 22, 2002, that "the term of this contract is one year from the

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commencement date," and that the Chief Operating Officer will determine whether this

"Agreement with Employee" shall be "extended for an additional year or other mutually agreed

upon period of time." July 17, 2002 Letter from Erste to Winder. Winder relies on this contract

language to argue that he could not be fired before the conclusion of a one-year term.

The District, on the other hand, contends that the purported employment contract is

unenforceable because Erste lacked authority to sign a contract on behalf of DCPS. According

to section 3700 of the District of Columbia Municipal Regulations, only the Superintendent of

Schools has the authority on behalf of DCPS to enter into contracts for services, and only he may

delegate that authority to specific subordinate officials in writing. See D.C. Mun. Reg. tit. 5-E, §

3700 et seq. The relevant excerpts of the District of Columbia Municipal Code follow:

"[T]he Superintendent of Schools . . . is delegated all authority to further the
needs and interests of the school system by entering into procurement contracts
and negotiated services agreements, subject to the provisions of this chapter."
D.C. Mun. Reg. tit. 5-E, § 3700.2.

"The Superintendent may redelegate in writing to subordinate officials of the
school system authority vested in him or her by this chapter." Id. § 3700.3.

"Any redelegation by the Superintendent shall specifically identify the individual
or individuals authorized, as contracting officers, to execute awards and to
approve determinations and findings, consistent with this chapter, and to sanction
procurement of supplies and services." Id. § 3700.4.

"The school system shall not generally be bound by agreements or contracts made
to prospective contractors by persons to whom procurement authority has not
been delegated or who are lacking the approval(s) required by this section." Id. §
3702.2.

"All negotiated contracts shall be reviewed by and receive the written approval of
a contract review committee, whose membership shall be designated by the
Superintendent of Schools." Id. § 3702.5.

The District contends that then-Superintendent Paul Vance never delegated contracting authority

to Erste. Therefore, the District argues, Erste did not have authority to enter into a contract on

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behalf of DCPS with Winder, and "thus [Winder] does not have an enforceable contract." Defs.'

Mot. at 5.

Winder responds that the contract is enforceable because Vance gave Erste "the authority

to hire and fire." Pl.'s Opp'n at 3, 6; see also Ex. A to Pl.'s Opp'n, Deposition of Paul L. Vance,

Sr. [ECF No. 229-3] 18:4-8. The authority to hire and fire, however, does not necessarily

include the authority to enter into contracts. See, e.g., Porshin v. Snider, 212 N.E.2d 216, 217

(Mass. 1965) ("The mere fact that he was general manager . . . with authority to hire and fire,

cannot be said to clothe him with ostensible authority to make a contract for permanent

employment."); Alderfer v. Bd. of Trs. of Edwards Cnty. Hosp. & Healthcare Ctr., 261 F. App'x

147, 150-53 (10th Cir. 2008) (explaining that the authority "to appoint" someone to a position

and "to remove" that person from that position does not include the authority to "enter into a

fixed-term employment contract"). As the District points out, "essentially every position in

District government is subject to someone's 'hiring and firing' authority, yet that authority does

not confer upon the thousands of District supervisors the ability to enter into employment

contracts." Defs.' Reply at 3. And here, although Vance gave Erste authority to hire and fire,

there is no evidence that Vance gave Erste the authority to enter into contracts on behalf of

DCPS. Without contracting authority, Erste could not enter into an enforceable employment

contract with Winder on DCPS's behalf. See, e.g., Orange v. District of Columbia, 59 F.3d 1267,

1270-71 (D.C. Cir. 1995) (finding employment contracts to be unenforceable where District

official lacked authority to include certain provisions in the contracts). Moreover, even if Vance

had orally delegated contracting authority to Erste (which is not the case here), that delegation

would not have been proper because it was not in writing. See D.C. Mun. Reg. tit. 5-E, § 3700.3

("The Superintendent may redelegate in writing to subordinate officials of the school system

9
authority vested in him or her by this chapter."). And even if Vance had properly delegated

contracting authority to Erste (which is also not the case here), Erste would have needed to

follow the relevant regulations that require all negotiated contracts to be "reviewed by and

receive the written approval of a contract review committee." Id. § 3702.5. Nothing indicates

that Winder's purported employment contract was ever reviewed or approved by a contract

review committee. Under the governing provisions of section 3700 et seq., then, Winder's

purported contract with DCPS is unenforceable.

Winder next argues that these provisions apply only to procurement contracts, not to

"[a]n employment contract paying a salary and granting fringe benefits," i.e., his purported

employment contract. Pl.'s Opp'n at 6. This argument is unavailing. Section 3700 et seq.

contains the "General Provisions" and related content of Chapter 5-E37, titled "Procurement and

Negotiated Services Contracts," which governs contractors who enter service agreements with

the District. See D.C. Mun. Reg. tit. 5-E, § 3700. If Winder had an employment contract with

the District—which is the crux of his breach of contract claim—then he is a contractor with a

service agreement, and thus subject to these regulations. If, on the other hand, Winder's

employment is not governed by section 3700 et seq., then he is not a contractor and thus is

employed at-will because "all of the employee specific regulations explicitly state that DCPS

employees are part of various career services, and are not hired under services contracts." Defs.'

Reply at 6. Winder may not rest on his conclusory statement that section 3700 et seq. simply

"do[es] not apply" to his contract, Pl.'s Opp'n at 6, and thereby avoid summary judgment. See

Greene, 164 F.3d at 675. He fails to proffer any other argument that section 3700 et seq. does

not apply to him as a purported contractor or that other regulations instead govern his

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employment. There is no genuine dispute of material fact, then, that if Winder had a contract

with DCPS, it would be governed by section 3700 et seq.

Winder presents two other arguments why the Court should not find that his purported

contract with DCPS is unenforceable. He first contends that "the Court should deny the District's

motion and strike the . . . defense that Erste lacked the authority to enter into a written

employment contract with Winder on the ground that [the] District never preserved any such

defense in its Answer." 4 Pl.'s Opp'n at 4. The District, however, properly executed its

obligations under Federal Rule of Civil Procedure 8. It included in "short and plain terms its

defenses to each claim asserted against it," Fed. R. Civ. P. 8(b), including defenses to Winder's

breach of contract claim. In its answer, the District "denies that [the letter signed by Erste and

Winder] created a binding employment contract," and states that "[Winder] was employed as a

managerial or supervisory 'at will' employee who served at the pleasure of the appointing

authority" and that Winder's breach of contract claim "fails to state a claim upon which relief can

be granted." Defs.' Supp. Answer Responding to Count IX of the 2d Am. Compl. ¶ 124, Aff.

Defenses ¶¶ 1-4 [ECF No. 87].

The District's statements unambiguously convey that it denied the existence of an

enforceable contract, adequately putting Winder on notice of the District's defense to his claim.

See Daingerfield Island Protective Soc'y v. Babbitt, 40 F.3d 442, 444 (D.C. Cir. 1994)

(explaining that the purpose of requiring defenses to be pled in an answer is "to put opposing

parties on notice of affirmative defenses and to afford them the opportunity to respond to the

defenses") (citing Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 350 (1971)).

Moreover, the District's more specific argument that Winder's contract is unenforceable because

4
The District failed to address Winder's argument on this point—its reply contains only the following
phrase that abruptly cuts off: "Plaintiff also argues that the District is precluded from arguing that Mr. Erste lacked
[. . .]." Defs.' Reply at 5 n.1.

11
Erste lacked the authority to enter into it was raised at least as early as 2011, and Winder did not

object to it then. See Defs.' 2d Mot. for Summ. J. at 10-13 [ECF No. 131] (noting that a

contracting officer "cannot obligate the District to a contract in excess of his or her actual

authority"; that "a person making or seeking to contract with a municipal corporation is charged

or imputed with knowledge of the scope of the agency's authority"; and that "Erste could not

obligate the District in excess of his actual authority"); see also Pl.'s Opp'n to Defs.' 2d Mot. for

Summ. J. [ECF No. 137] (failing to argue that the District had waived its ability to assert this

defense). Winder has therefore waived his objection. See, e.g., Mittleman v. United States, 997

F. Supp. 1, 6 (D.D.C. 1998) (explaining that plaintiff's objection to defendant's defense allegedly

not in answer may be waived where defense had already been litigated without objection by

plaintiff). Accordingly, the Court will not strike the District's defense argument.

Winder also argues that the District engaged in "misconduct" if Erste acted without actual

authority to enter into a contract with Winder, and therefore the District is "estopped from

denying the contract is enforceable." Pl.'s Opp'n at 7-8. "To assert an estoppel effectively,

[petitioner] must show that: (1) the District made a promise to him; (2) he suffered injury due to

reasonable reliance on it; and (3) the promise must be enforced to prevent injustice and promote

the public interest." Chamberlain v. Barry, 606 A.2d 156, 158 (D.C. 1992); accord Leekley v.

Dist. of Columbia Dep't of Emp't Servs., 726 A.2d 678, 680 (D.C. 1999). "[W]hen the agent of

the government whose representations are relied upon plainly lacks the authority to do whatever

he has promised," however, "the promisee's reliance cannot be 'reasonable.'" Brookstowne

Cmty. Dev. Co., 987 A.2d at 450 (internal citation omitted). "This is because 'a person making

or seeking to make a contract with the District is charged with knowledge of the limits of the

agency's (or its agent's) actual authority . . . . [A] party contracting with the government is 'on

12
constructive notice of the limits of the [government agent's] authority,' and cannot reasonably

rely on representations to the contrary.'" Id. (quoting Greene, 806 A.2d at 806); see also Mamo

v. District of Columbia, 934 A.2d 376, 386 (D.C. 2007) (holding that estoppel was not applicable

where a District employee, who signed a letter promising that plaintiff would be compensated for

his leasehold interest, business, and goodwill, did not have authority to commit the District to

pay business loss and goodwill damages); District of Columbia v. Stewart, 278 A.2d 117, 119

(D.C. 1971) (holding that the District cannot be estopped from bringing an action for

reimbursement where District employee did not have authority to relieve a decedent or his estate

from a statutory obligation to pay the full cost of his mental health care and maintenance).

Indeed, the D.C. Circuit has explained that, when a plaintiff relies on a government official

without authority to contract or make promises, "the government is not bound by the statements

or assurances of its officers where the actual authority to make such statements or assurances is

lacking." ATC Petroleum, Inc. v. Sanders, 860 F.2d 1104, 1111 (D.C. Cir. 1988). "As the

Supreme Court has made clear, parties dealing with the government 'are expected to know the

law and may not rely on the conduct of Government agents contrary to law.'" Id. (quoting

Heckler v. Cmty. Health Servs. of Crawford Cnty., Inc., 467 U.S. 51, 63 (1984)).

Here, Winder argues that, because he relied on Erste's representation, "the District is

estopped from denying the contract is enforceable." Pl.'s Opp'n at 8. Winder, however, is

charged with knowledge that Erste did not have the authority to bind the District to a one-year

employment contract. Accordingly, to the extent Winder relied on his understanding that he was

entering into a one-year contract, his reliance was unreasonable, because "a person making ...

a contract with the District is charged with knowledge of the limits of the agency's (or its agent's)

actual authority." Greene, 806 A.2d at 222. Hence, Winder's argument for estoppel fails.

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 Summary judgment in favor of the District is appropriate on Winder's breach of contract

claim because the purported employment contract is unenforceable. Erste was not authorized to

enter into a contract with Winder, and Winder is charged with knowledge of Erste's lack of

authority. There is no genuine dispute of material fact, and the District is entitled to judgment as

a matter of law. The Court need not consider the District's other argument that Winder was

either a Career Services employee or an Executive Services employee. Hence, Winder's motion

to strike the District's Executive Service argument is moot.

CONCLUSION

For the reasons set forth above, the Court will grant the District's motion for summary

judgment and will deny as moot Winder's motion to strike. A separate Order has been issued on

this date.

/s/
JOHN D. BATES
United States District Judge

Dated: July 23, 2014

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