MEMORANDUM OPINION
Plaintiff Alfred M- Winder is a former employee of the District of Columbia in the Division of Transportation of the D.C. Public Schools (“DCPS”). He brings this action against defendants the District of Columbia (“the District”), DCPS, and officials associated with DCPS, 1 alleging that he was subject to a hostile work environment and then terminated in violation of his First Amendment and due process rights and 42 U.S.C. § 1983, and his rights *166 under the D.C. and federal Family and Medical Leave Acts, D.C.Code §§ 32-503 et seq., and 29 U.S.C. §§ 2601 et seq. He further alleges that the termination was in breach of his written employment contract, and that he has suffered a loss of benefits due under the contract. Before the Court are defendants’ motions for summary judgment, which include a supplemental motion addressing the contract claim. For the reasons explained below, the Court will grant defendants’ motions for summary judgment in their entirety, with the exception of the contract claim for benefits allegedly owed to plaintiff.
BACKGROUND
In August 1999, plaintiff was appointed as the General Manager of the Division of Transportation for DCPS. Pl.’s Ex. A, Decl. of Alfred M. Winder (“Winder Decl.”) ¶ 44.
2
Plaintiffs responsibilities included the management, administration and operation of transportation services for special education students in the D.C. metropolitan area.
Id.
¶¶ 19-20. He also shared in the responsibility for bringing the District into compliance with various Orders issued in
Petties v. District of Columbia,
As General Manager of the Transportation Division, plaintiff was required to report regularly to the Special Master and her staff, and communicated regularly with the Transportation Administrator. Winder Decl. ¶¶ 14, 44, 82-83. From 2000 to 2003, plaintiff repeatedly spoke out against what he perceived to be his supervisors’ purposeful resistance to the Petties orders and the general failure of the Transportation Division to meet the standards articulated in Petties. Id. ¶¶ 60-62. Plaintiff also protested the Transportation Division’s lack of adequately trained drivers; the Division’s insufficient budget and diversion of funds to other school departments; the absence of supplies needed for the maintenance of offices and bus terminals; the Division’s inaccurate record *167 keeping; and the hiring and retention of unqualified employees and contractors at excessive salaries. Id. ¶¶ 50-58.
Plaintiff believed that Erste, as well as DCPS General Counsel Veleter Mazyck and DCPS Labor Partnership Manager Janie McCullough, were stonewalling and, at several points, opposing, efforts by the Special Master to bring DCPS into compliance with the
Petties
orders.
Id.
¶¶ 77-101. Mazyck allegedly told plaintiff that the Special Master “is not going to run this school system and you don’t report to her,” and stated several times that she did not intend to cooperate with the Special Master’s requests or provide funds to do so.
Id.
¶¶ 79-80. Plaintiff reported the difficulties he faced within the Transportation Division to the Special Master and the Transportation Administrator.
Id.
¶¶ 61, 83. These reports allegedly included his belief that Erste had refused to meet staffing needs; failed to discipline absent bus drivers and provide necessary driver training; inaccurately audited employee leave balances; misunderstood transportation scheduling and the driver licensing process; failed to provide parents with appropriate Medicaid reimbursements; and spent transportation funds on other school programs while “transportation funding fell short.”
See
Second Am. Compl. ¶¶ 40, 43, 48, 56. Plaintiff told the Special Master that Erste “did not support [his] efforts at reform, as required by the Court’s orders,”
id.
¶ 41, and that plaintiff was “being set up as the ‘fall guy’ by Mazyck and ... Erste for Erste’s failings.”
Id.
¶¶ 48. In the midst of these events, the term of the first Transportation Administrator expired on January 31, 2002.
See Petties v. District of Columbia,
While tensions within the Transportation Division were mounting, DCPS decided to conduct a “reorganization” in mid-2002, under which DCPS abolished the positions of all managerial employees and required them to reapply for their positions. Winder Decl. ¶ 63. DCPS posted a vacancy announcement for the General Manager position, identifying it as a “Senior Executive” position, “serving] at the pleasure of the appointing authority.” Defs.’ Ex. 7, at 1. The duties included “organizing] and implementing] the transportation system in accordance with the policies of DCPS and the Special Education Transportation Corrective Action Plan approved by the [Petties] Court Order of March 21, 2007,” and listed many associated administrative and management duties. Id. at 1-3.
Plaintiff reapplied for the position and, in July 2002, was selected over at least two other candidates. See Defs.’ Ex. 10. The terms of plaintiffs employment are summarized in a July 17, 2002 letter signed by plaintiff and defendant Erste which states:
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.
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 *168 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.
Pl.’s Ex. C, at 1-2. Plaintiff states that he was “never told ... there were any limitations on the written employment contract” and the term “probationary” was never used in connection with plaintiffs employment. Winder Decl. ¶ 67. Following his reappointment, plaintiff continued to perform “the same job as [he] had done before.” Id. ¶¶ 19-20.
The problems within the Transportation Division soon worsened. From April 2002 to January 2003, plaintiff made approximately 48 telephone calls to the Special Master and her staff to report the numerous difficulties he encountered in effectuating compliance with the Petties orders. Second Am. Compl. ¶ 55. As a result of these reports, Erste and McCullough, together with the newly appointed Operating Officer of the Division of Transportation, Kennedy Khabo, allegedly began to retaliate against plaintiff. Id. ¶¶ 57-58. They told plaintiff that it was “in his best interest” to resign, and encouraged D.C. parents and school board members to file official complaints against him. Id. ¶¶ 58-59. Khabo also attempted to undermine plaintiffs authority by falsely informing plaintiffs staff that plaintiff intended to resign, and threatening the staff with dismissal if they failed to follow Khabo’s orders. Id. ¶ 61.
On December 3, 2002, plaintiff forwarded Erste an e-mail in which he questioned the removal of $1.2 million from the DCPS special education transportation budget. Winder Decl. ¶ 85. These funds were apparently spent on regular education students and bus services with charter service companies, rather than on the transportation of students with disabilities. Id. ¶ 86. Plaintiff reported his concerns to the Special Master. Id.
Plaintiff encountered further conflict with Erste the next month. Plaintiff testified in mid-January 2003 at a meeting of the D.C. Council Committee on Education, Libraries, and Recreation on the subject of a bus driver walkout earlier that month. Id. ¶¶ 93-94. Plaintiff states that he was asked by Councilman Chavous to come to the witness stand after Erste and Khabo “failed to give ... straight answers.” Id. Erste was angered by plaintiffs testimony, and expressed hostility towards plaintiff after leaving the meeting. Id. ¶ 94.
On January 28, 2003, the
Petties
plaintiffs filed a motion to appoint a receiver to bring the Transportation Division into compliance with the
Petties
orders.
See Petties v. District of Columbia,
On February 24, 2003, plaintiff filed a formal complaint against Khabo and Erste with the District of Columbia Inspector General. See PL’s Ex. E. at 1-4. Plaintiffs complaint alleged, inter alia, that Khabo and defendant Erste had filed false affidavits in the Petties litigation; that Erste was abusive to plaintiffs staff; that Erste arbitrarily withheld approval to employ transportation experts who could aid the Division in resolving its under-staffing problems; that the Division’s budget was poorly managed; and that plaintiff was being retaliated against by Erste and Khabo “for speaking the truth under [his] 1st amendment rights.” PL’s Ex. E. at 1-4.
A month later, on March 20, 2003, plaintiff left work for over two weeks of approved medical leave to undergo extensive oral surgery. 4 Winder Decl. ¶¶ 18, 108-09. He had, for several months, been taking antibiotics and painkillers for his condition — a serious infection involving bleeding gums and abscesses — but had delayed oral surgery due to the demands of his job. Id. ¶¶ 104-05.
Plaintiff was terminated while on leave, by letter dated April 3, 2003, without an opportunity to discuss his termination. Id. ¶ 109; Defs.’ Ex. 8. He received no compensation for his medical leave or other benefits due under his employment contract. 5 Winder Decl. ¶¶ 18, 109-10. The next day, plaintiff filed a petition for appeal with the D.C. Office of Employee Appeals (“OEA”), alleging that he had been terminated for filing a claim with the Inspector General in violation of the D.C. Whistleblower Act, and also noted that he had attempted to go on sick leave on two earlier occasions — February 27, 2003 and March 1, 2003 — but no “proposal” was ever given. Defs.’ Ex. 5, at 3. Plaintiff requested that he be paid all of his “entitlements, sick [leave], [and] vacation,” and also requested that he be restored to his job. Id. He also complained that he had never received a performance evaluation in his entire career with DCPS. Id. DCPS responded that plaintiff had no right to appeal because he was a “probationary employee” (i.e., employed under a term of less than a year) and/or an at-will employee. Defs.’ Ex. 3, OEA Decision at 3-4 (Dec. 6, 2004) (“OEA Decision”). In resolving plaintiffs appeal, the OEA held that plaintiff was a probationary employee, and thus had no right of appeal to the OEA. Id. at 5. This meant that plaintiff could not utilize the administrative process provided by the D.C. Comprehensive Merit Personnel Act. Id. at 4.
While his administrative appeal was pending, plaintiff searched for new employment. See Winder Decl. ¶ 115. Plaintiff asked his friend Wil Parker to speak to then-Deputy Mayor Herb Tillery about an unspecified transportation position with the District of Columbia government, *170 based on Parker’s acquaintance with Tillery through a church. Id. ¶ 114. Parker told plaintiff that Tillery had told Parker that plaintiff was “persona non grata,” and “would not be considered for the transportation job.” Id.
In January 2005, plaintiff accepted a position with Atel Bus-Truck (“Atel”) as Director of Business Development for Atel’s subcontract with the Baltimore Washington International Airport (“BWI”). Id, ¶ 116; see also Defs.’ Ex. 1, Winder Depo. at 6-9 (“Winder Depo.”). In this capacity, plaintiff is now responsible for overseeing two bus systems — the BWI Airport Shuttle and the D.C. Circulator bus that operates in the District’s downtown area. See Pl.’s Response to Defs.’ Statement of Material Facts ¶ 4; Winder Deck ¶¶2-4, 9; Winder Depo. at 6-9. Plaintiff works on commission, and he was paid $95,000 during his first year at Atel, and $92,000 during his second year. Winder Deck ¶¶ 4, 116. However, plaintiff believes that his position with Atel provides him with less responsibility and less benefits than his prior position with DCPS, explaining that he is now entitled to only five days of vacation (in contrast to three weeks), no compensatory time, and less in health insurance and pension benefits. Id. ¶¶ 5-7, 116.
Plaintiff filed this action on December 23, 2003, and an initial round of motions practice narrowing the claims as well as discovery have since been completed.
See Winder v. Erste,
STANDARD OF REVIEW
Summary judgment is appropriate when the pleadings and the evidence demonstrate that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact.
See Celotex Corp. v. Catrett,
In determining whether there exists a genuine issue 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.
*171
See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255,
DISCUSSION
I. First Amendment Claim (Counts I and V)
In Counts I and V, plaintiff alleges that defendants violated his rights under the First Amendment when they created a hostile work environment and terminated his employment as the General Manager of Transportation in response to his criticisms of the transportation provided for special education students and his supervisors’ alleged failure to comply with the Petties orders. 6 Specifically, plaintiff alleges he was retaliated against for reporting “the transportation department’s failures and inadequacies” to DCPS officials, the Petties Special Master and Transportation Administrator, the D.C. Council, and the D.C. Inspector General. See, e.g., Second Am. Compl. ¶¶ 30-31, 33, 36, 46-48, 55, 58, 74, 88; see also Pl.’s Mem. at 13, 18-19; Winder Deck ¶¶31, 93-94; Pi’s Ex. E. According to plaintiff, this constitutionally protected speech “was a substantial or motivating factor in the adverse actions taken against him by the D.C. Public Schools and defendants Erste ... and McCullough.” Second Am. Compl. ¶ 88.
Defendants move for summary judgment on Counts I and V, relying primarily on the Supreme Court decision issued last year in
Garcetti v. Ceballos,
— U.S.-,
This Circuit has explained that “[t]he speech of public employees enjoys considerable, but not unlimited, First Amendment protection.”
Wilburn v. Robinson,
To determine whether the speech of a public employee is protected by the First Amendment, the four-factor test developed in
Pickering v. Bd. of Educ.,
First, the public employee must have spoken as a citizen on a matter of public concern. Second, the court must consider whether the governmental interest in promoting the efficiency of public services it performs through its employees ... outweighs the employee’s interest, as a citizen, in commenting upon matters of public concern.... Third, the employee must show that her speech was a substantial or motivating factor in prompting the retaliatory or punitive act. Finally, the employee must refute the government employer’s showing, if made, that it would have reached the same decision in the absence of the protected speech.
Wilburn,
In Garcetti the Supreme Court elaborated further on the first factor— speech “as a citizen” on a matter of public concern — and held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Id. at 1960 (emphasis added). Where the employee is not speaking “as a citizen,” but instead pursuant to his official duties, “the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech.” Id. at 1958.
Thus, a court analyzing a First Amendment claim for retaliation after
Garcetti
must determine at the outset whether or not a public employee’s speech was made “as a citizen,” or instead pursuant to his official employment responsibilities.
See Wilburn,
Garcetti
provides limited guidance on what it means to speak “pursuant to” one’s “official duties,” in contrast to speaking as citizen, but it cautioned that a “written job description” or the location of the speech is not, standing alone, dispositive.
See Williams,
Thus, the Court begins with the scope of plaintiffs employment responsibilities. Plaintiff admits that, as General Manager of Transportation for DCPS, his responsibilities include “the management, administration, and operation of transportation services for special education students to schools in the District of Columbia, Maryland, and Virginia” and “helping to implement the Court Orders in the Pet-ties case and reporting regularly to Special Master Elise T. Baach.” Winder Decl. ¶ 19, 44; Second Am. Compl. ¶¶ 17, 29. Defendants do not dispute this account and, indeed, the 2002 vacancy announcement for plaintiffs position describes duties consistent with plaintiffs description. 7 See Defs.’ Ex. 7 at 1-2.
All of the speech cited by plaintiff in the present action concerned these official duties — ’that is, the management and performance of the DCPS Division of Transportation and compliance with the
Petties
orders. The “management, administration, and operation of transportation services” plainly encompasses plaintiffs complaints to DCPS officials about the Transportation Division’s lack of adequately trained drivers; the Division’s insufficient budget and diversion of funds to other school departments; the absence of supplies needed for the maintenance of offices and bus terminals; the Division’s inaccurate record keeping; and his supervisors’ alleged failures to comply with the
Petties
orders.
See
Second Am. Compl. ¶¶ 31, 32, 40, 43, 46, 48-49, 51, 55-56, 63. When plaintiff spoke on these matters, he was merely fulfilling the precise job functions that he was “paid to perform.”
See Garcetti,
Plaintiffs communications with the Pet-ties Special Master and the court-appointed Transportation Administrator also were clearly within the scope of his responsibilities as General Manager. Indeed, in his declaration plaintiff himself states that he was “hired to implement this Court Order” and that his duties included “implement[ing] the Court Orders and reporting] regularly to the Special Master.” See Winder Deck ¶¶ 14, 44. Consequently, plaintiffs reports to the court-appointed officials in Petties regarding the problems plaguing the Transportation Division were — -just like his reports to his own supervisors at DCPS — made “pursuant to” his official duties. 9
Plaintiffs speech in front of the D.C. Council Committee on Education, Libraries, and Recreation (idlffl 93-94) and the D.C. Inspector General
(id.
¶¶ 100-01; Pl.’s Ex. E) fares no better. Even though these criticisms of the Division constituted a somewhat “unusual” aspect of plaintiffs employment, such attempts to expose wrongdoing are not covered by the First Amendment where the speech is “pursuant to” an official duty.
See Wilburn,
Plaintiffs testimony before the D.C. Council Committee arose in the context of a hearing on the aftermath of a bus driver “walk-out” at which Erste and Khabo initially testified. Winder Deck ¶¶ 93-94. Plaintiff was present in the room, but not *175 sitting at the witness table. Id. ¶ 93. Plaintiff states that Councilman Chavous nonetheless requested that plaintiff testify because Chavous was not satisfied with the answers provided by plaintiffs supervisors. Id. The only reasonable inference to be drawn from plaintiffs description of that day’s events is that he was asked to testify on the subject of the bus driver situation in his capacity as an employee working with Erste and Khabo — that is, as General Manager of the Transportation Division. Nothing in plaintiffs description of events indicates he spoke, as he contends, “as a private citizen.”
As for plaintiffs complaint to the D.C. Inspector General, it is plain from the face of that administrative complaint that plaintiff was engaged in speech pursuant to his official duties, in his capacity as General Manager. The first line of the administrative complaint states: “As
General Manager of the Division of Transportation,
I am now lodging a
formal
complaint against Mr. Louis Erste ... and Mr. Kennedy Khabo.... ” Pl.’s Ex. E at 1 (emphasis added). The complaint goes on to describe Erste’s and Khabo’s alleged attempts to undermine plaintiffs management of the Transportation Division and their disregard of the
Petties
orders, apparently seeking to create a record of the events, initiate a formal inquiry, and protect plaintiff and his staff from further intimidation.
Id.
at 2-5. Other circuits interpreting
Garcetti
have affirmed that public employees’ allegations of misconduct by their colleagues do not constitute protected speech merely because the employees are “trying to focus attention on apparently misguided actions or improper situations.”
Green,
In short, the Court holds that, as a matter of law, the speech described in the second amended complaint and plaintiffs declaration was made “pursuant to” his responsibilities as the General Manager of Transportation rather than as a private citizen. Accordingly, the Court will grant defendants’ motion for summary judgment on Counts I and V. 10
*176 II. Claims Pertaining to Plaintiffs Employment Contract (Counts IX and X)
A. Due Process and Breach of Contract Claims Based on Premature Termination
Defendants seek summary judgment on plaintiffs claim of deprivation of property without procedural due process on the ground that plaintiff was an at-will employee who had no property interest in continued employment.
See
Defs.’ Mem. at 6-11. Defendants further contend that plaintiffs status as an at-will employee was determined by the D.C. Office of Employee Appeals (“OEA”), and that the doctrine of collateral estoppel bars plaintiff from relitigating that finding here. Defs.’ Suppl. Mem. at 4-9. Plaintiff responds that the OEA decision is not entitled to preclusive effect, and that his written employment contract establishes that he was not employed “at will,” but instead had a property interest in his employment for a one-year fixed term.
See
Pl.’s Mem. at 22-32. Plaintiffs claims of deprivation of property without due process and breach of contract based on premature termination overlap because the property interest at issue is continued employment under the contract.
See Hall v. Ford,
As a threshold matter, the Court addresses defendant’s contention that plaintiff is estopped from litigating his status as an at-will employee by the OEA decision of December 6, 2004. The Supreme Court has held that “when a state agency ‘acting in a judicial capacity ... resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate,’ federal courts must give the agency’s factfinding the same preclusive effect to which it would be entitled in the State’s courts.”
University of Tennessee v. Elliott,
The OEA’s findings, however, are entitled to preclusive effect under
University of Tennessee
only if they would be entitled to preclusive effect in District of Columbia courts. Under District of Columbia law, the doctrine of collateral estoppel “bars relitigation of an issue when (1) the issue is actually litigated[;] ... (2) determined by a valid, final judgment on the merits; (3) after a full and fair opportunity for litigation by the parties or their privies; [and] (4) under circumstances where the determination was essential to the judgment, and not merely dictum.”
Hogue v. Hopper,
Here, the Court finds that the doctrine of collateral estoppel should not give preclusive effect to OEA’s finding that plaintiff was an at-will employee. First, the OEA decision did not represent a “judgment on the merits,” and a
de facto
stay of proceedings was in effect while the OEA considered the jurisdictional issue.
See
OEA Decision at 1 (“Since a decision could be rendered based upon the documents submitted and oral arguments ..., no further proceedings, including an administrative hearing on the record, are necessary.”). The absence of a full adversarial hearing based on a complete record is one fact that indicates that collateral estoppel should not apply.
See Fonville v. District of Columbia,
In the District of Columbia, there is a presumption that an employment relationship is “terminable at will by any party at any time” unless evidence shows that the parties intended the employment to be a “specific term of duration” or subject to specific preconditions before termination.
Reaves-Bey v. Karr,
The employment contract that plaintiff signed states that “[t]he tenure of this contract is one year from the commencement date,” which is designated in the contract as July 22, 2002.
See
PL’s Ex. 2, at 1. At first glance, this provision for a fixed term of employment would seem to resolve the issue of plaintiffs employment status in plaintiffs favor. However, defendant points out that plaintiff was hired to a position in the “Executive Service,” in which, by statute, individuals “serve at the pleasure of the Mayor.” D.C.Code § 1-610.51(b);
see also
D.C. Mun. Regs. tit. 6, § 1000.3 (2002). Consistent therewith, the vacancy announcement for plaintiffs position states that “APPOINTEES TO THIS POSITION SERVE AT THE PLEASURE OF THE APPOINTING AUTHORITY.” Defs.’ Ex. 7. The phrase “at the pleasure of’ customarily means “at the will of the employer.”
J. David Leonard v. District of Columbia,
Plaintiff contends that the absence of the clause “at the pleasure of’ from the contract document means that it does not apply to him.
See
PL’s Mem. at 23. But the D.C.Code cannot be so easily cast aside. “A person making or seeking to make a contract with a municipal corporation is charged or imputed with knowledge of the scope of the agency’s [and its agents’] authority.”
Mawin L. Leonard v. District of Columbia,
This reading is not inconsistent with the contract provision that plaintiffs term of employment would be one year. Even a contract speaking in terms of “permanent employment” or a “fixed term” may be terminable at will if the circumstances surrounding the making of the contract support that interpretation.
See Hodge v. Evans Fin. Corp.,
Defendants and plaintiff spar at length over whether plaintiff was in a probationary period under D.C. Mun. Regs, title 6, § 1601. at the time of his discharge, because probationary status also would mean that plaintiff was employed at will. See Defs.’ Mem. at 4-8; PL’s Suppl. Mem. at 3-5. As noted above, defendants rely heavily on the OEA conclusion that plaintiff was a probationary employee at the time of his discharge and thus was employed at will. See OEA Decision at 4-5. The flaw in relying on the probationary period framework is that the referenced regulation on probationary periods is applicable only to “Career Service” employees. See D.C. Mun. Regs, title 6, § 1601 (“Section 1601 through 1618 [on discipline and grievances] apply to each employee of the District government in the Career Service who has completed a probationary period.”). The evidence submitted by defendants and plaintiff is that plaintiff was employed, instead, in the Executive Service. See Defs.’ Ex. 5 (plaintiffs petition for appeal with OEA identifying himself as “Senior Executive Service”); Defs.’ Ex. 2 (Office of Human Resources Request of Employment Action identifying plaintiffs classification as “EX,” abbreviation for Executive Service). Employees in the Executive Service are not covered by the Career Service regulations. Chapter 8 of the D.C. Municipal Regulations, entitled “Career Service,” is explicit on that point: “This Chapter applies to the Career Service of the District of Columbia which consists of all positions in the District government except ... (h) positions in the Executive Service of the District of Columbia pursuant to §§ 610.1 and 610.2, D.C.Code (1981).” (emphasis added). See D.C. Mun. Regs, title 6, § 800.1; see also id. § 813.2 (“An employee who is appointed to a Career Appointment (Probational) ... shall be required to serve a probationary period of one year.”). The Court therefore does not rely on the probationary period in resolving the issue of whether plaintiff was employed at will.
Hence, the Court finds that there is no genuine issue of material fact that plaintiff was in the Executive Service and thus signed the contract with knowledge that he served at the pleasure of the appointing authority. Because he could be discharged at will “for any reason or no reason at all,” defendants did not breach the contract by terminating him prior to the end of his one-year term, and their motion for summary judgment on this aspect of the contract claim (Second Am. Compl. ¶ 124) will be granted. Moreover, employees who are terminable at will have no property interest in continued employment under the Due Process Clause.
See, e.g., Piroglu v. Coleman,
B. Benefits Due Under the Contract
To hold that plaintiff had no property interest in continued employment under the contract does not, however, mean that no benefits were owed to plaintiff under the contract. Plaintiff alleges that defendants breached the contract not only by terminating him without cause, but also by denying plaintiff sick and annual leave, compensatory leave, and pension contributions. Second Am. Compl. ¶¶ 126-27. Defendants contend that this aspect of plaintiffs complaint must be dismissed because it is preempted by the D.C. Comprehensive Merit Personnel Act, D.C.Code §§ 1-601.01 et seq. (“CMPA”). Defen
*180
dants rely on
District of Columbia v. Thompson,
[T]he District of Columbia Court of Appeals has held that “ ‘public employees do not lose their common law rights to sue for the[ir] injuries ... [when] neither those injuries nor their consequences trigger the exclusive provisions of the CMPA,’ ” and whether a claim triggers the CMPA is initially determined by the OEA. See Grillo v. District of Columbia,731 A.2d 384 , 385-87 (D.C. 1999) (quoting King v. Kidd,640 A.2d 656 , 664 (D.C.1993)). Thus, a suit seeking recourse under the common law “may proceed if the OEA concludes that it lacks jurisdiction.” Id. at 387. “The determination whether the OEA has jurisdiction is ‘quintessentially a decision for the OEA to make in the first instance.’ ” Armstead v. District of Columbia,810 A.2d 398 , 400 (D.C.2002) (quoting Grillo,731 A.2d at 386 ).
Order (filed Jan. 23, 2007). Here, the OEA concluded that it lacked jurisdiction over plaintiffs appeal, and stated that plaintiff had no recourse under the CMPA. See OEA Decision at 4. Therefore, the Court reinstated plaintiffs breach of contract claim. Defendants offer no reason to revisit this holding. Accordingly, defendants’ motion for summary judgment on the benefits portion of plaintiffs breach of contract claim will be denied. 13 This claim will be allowed to proceed solely against the District of Columbia. See Order at 5 (filed Jan. 23, 2007).
III. Deprivation of Liberty Interest (Count XI)
Plaintiff has asserted a distinct due process claim based on allegedly stigmatizing statements made by defendants in deprivation of his liberty interest in pursuing employment opportunities in his chosen profession of transportation management. Second Am. Compl. ¶¶ 132-33. Defendants move for summary judgment on the ground that plaintiffs present employment in a similar transportation management position demonstrates, as a matter of law, that he has not suffered deprivation of a liberty interest. See Defs.’ Mem. at 12-16. Plaintiff responds that his present position is not similar because the salary and benefits are less, and he went through a period of unemployment. PL’s Mem. at 34-39.
The parties agree, in principle, on the governing law. “A person’s right to ... follow a chosen profession free from unreasonable governmental interference comes within the ‘liberty’ ... concept[ ] of the Fifth Amendment.”
See Trifax Corp. v. District of Columbia,
Plaintiffs claim cannot survive summary judgment for two reasons. First, plaintiff has failed to produce competent evidence, as required by Fed.R.Civ.P. 56, of the allegedly stigmatizing statement made by Tillery. The only evidence that plaintiff has adduced in support of his claim is his own declaration that “Parker told me that Tillery told Parker that I was ‘persona non grata’ and would not be considered for the transportation job, despite my qualifications.” Winder Decl. ¶ 114. The statement attributed to Tillery is double hearsay — it is plaintiffs account of his friend’s account of the declarant’s statement — a statement the declarant reportedly does not remember making.
See
Pl.’s Mem. at 37 n. 14. “While a nonmovant is not required to produce evidence in a
form
that would be admissible at trial, the evidence still must be capable of being converted into admissible evidence.”
Gleklen v. Democratic Congressional Campaign Comm.,
More significantly, even if plaintiffs declaration could be considered competent evidence of the Tillery statement under Rule 56, defendants still are entitled to summary judgment because the undisputed evidence shows that plaintiff has not been precluded from employment in his chosen field of transportation management. Plaintiff has been employed since January 2005 as the Director of Business Development with Atel Bus-Truck, where he oversees two bus systems — the BWI Airport Shuttle and the D.C. Circulator bus that operates in the District’s downtown area. See Pl.’s Response to Defs.’ Statement of Material Facts ¶ 4; Winder Decl. ¶¶ 2-4, 9; Winder Depo. at 6-9. Plaintiff works on commission rather than salary, and earned $95,000 in his first year, and $92,000 in his second year. PL’s Response to Defs.’ Statement of Material Facts ¶ 3; Winder Decl. ¶ 4. This is roughly comparable to his salary of $103,500 as General Manager of Transportation for DCPS and is within plaintiffs professional field of transportation management.
Plaintiff contends that his current position is not comparable to the former General Manager position because his salary and benefits are lower, and he went through a period of unemployment from April 2003 to December 2004.
See
PL’s
*182
Mem. at 37; Winder Decl. ¶¶ 3-6, 116. These differences are immaterial in a liberty interest analysis. Plaintiff must show that the government action has the effect of “ ‘seriously affect[ing], if not destroying],’ a plaintiffs ability to pursue his chosen profession,” or “substantially reducing] the value of his human capital.”
O’Donnell,
IV. Substantive Due Process (Count XII)
Plaintiff alleges in Count XII that defendants used their government power to “oppress” plaintiff — that is, by terminating his employment — for seeking to comply with judicial orders issued in the
Petties
litigation.
See
Second Am. Compl. ¶¶ 134-35. Defendants contend that, as a threshold matter, plaintiffs interest in employment is not protected by substantive due process, citing
McKinney v. Pate,
As a threshold matter, there is substantial doubt as to whether one’s interest in public employment is protected by substantive due process. Several circuits have rejected the proposition that a public employee may have a property interest in employment entitled to substantive due process protection.
See Nicholas v. Pa. State Univ.,
This Court finds persuasive those circuits that have held that employment interests are not protected by substantive due process. But the Court need not decide this claim on that ground, and indeed, is reluctant to do so in light of
Yates.
As alleged here, plaintiff does not have a cognizable substantive due process claim. This Circuit has held that “ ‘where a particular [Constitutional] Amendment provides an explicit source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of “substantive due process” must be the guide for analyzing these claims.’ ”
Tri County Indus., Inc. v. District of Columbia,
V. Family and Medical Leave Act
Although plaintiff contends that he was terminated for speaking out about the District’s alleged noncompliance with the Pet-ties orders, he alleges, in the alternative, that he was terminated because he took sick leave, in violation of both the D.C. and the federal Family and Medical Leave Acts, D.C.Code §§ 32-503 et seq., and 29 U.S.C. §§ 2601 et seq. (Count III). Defendants respond that plaintiff has failed to come forward with evidence that plaintiffs use of sick leave was the cause of his termination. 16 Defendants further submit *184 that, even if plaintiffs evidence supports a prima facie case, defendants are entitled to summary judgment because they have come forward with nondiscriminatory reasons for their actions and plaintiff has failed to show those reasons were a pretext for discrimination.
A. Framework for Evaluating FMLA Claims
Both statutes make it unlawful for a covered employer to discriminate against employees for exercising rights protected under the Acts’ respective provisions, which are, for present purposes, coterminous.
See
29 U.S.C. § 2615(a)(1); D.C.Code 32-507(a);
see also Chang,
The first step in the framework requires a plaintiff to carry the burden of establishing a prima facie case by a preponderance of the evidence.
McDonnell Douglas,
Once the plaintiff establishes a prima facie case, the burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions.
McDonnell Douglas,
If the employer is successful, the burden shifts back to the plaintiff to show that the employer’s stated reason was a pretext for discrimination.
Reeves v. Sanderson Plumbing Prods., Inc.,
Assuming then that the employer has met its burden of producing a nondiscriminatory reason for its actions, the focus of proceedings at trial (and at summary judgment) will be on whether the jury could infer discrimination from the combination of (1) the plaintiffs prima facie case; (2) any evidence the plaintiff presents to attack the employer’s proffered explanation for its actions; and (3) any further evidence of discrimination that may be available to the plaintiff (such as independent evidence of discriminatory statements or attitudes on the part of the employer) or any contrary evidence that may be available to the employer (such as evidence of a strong track record in equal opportunity employment).
Aka v. Washington Hosp. Ctr., 156 F.3d
1284, 1289 (D.C.Cir.1998) (en banc);
see also Waterhouse v. District of Columbia,
Although the “intermediate evidentiary burdens shift back and forth” under the
McDonnell Douglas
framework, “ ‘[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.’ ”
Reeves,
B. Causation
Defendants acknowledge that the Court held, at the pleading stage, that the factual allegations of plaintiffs complaint were sufficient to support an inference of causation, but contend that, now that discovery has been completed, plaintiff must come forward with evidence of more than temporal proximity to establish that his use of sick leave and his termination were causally connected.
See
Defs.’ Mem. at 27-29; Defs.’ Reply at 10. The flaw in defendants’ argument is that close temporal proximity between protected activity and an adverse employment action may, standing alone, be sufficient for a reasonable jury to infer causation.
See Gleklen,
C. Defendants’ Nondiscriminatory Reason, Pretext, and Discrimination Vel Non
Defendants contend that they are nonetheless entitled to summary judgment because they had a legitimate nondiscriminatory reason for terminating plaintiff. They note that, by plaintiffs own account of the events, the reasons for his termination had nothing to do with his sick leave. See Defs.’ Mem. at 35 (citing Second Am. Compl. ¶¶ 12-84). Whatever the words chosen to characterize plaintiffs level of success in managing the DCPS transportation system, there is no dispute that plaintiff and Erste, the Chief Operating Officer of the Division of Transportation, disagreed on significant staffing issues and on transportation priorities, and that this caused a deep-seated mistrust between the two. See Winder Decl. ¶¶ 51-57, 72, 83-93. 17 Both parties further agree that Erste sought to cast the blame on plaintiff for the District’s failure to provide the level of transportation for special education students required by the Petties orders and for the appointment of the judicially-appointed Transportation Administrator to oversee the operation of DCPS transportation. See Defs.’ Ex. 11 (Erste Depo. at 153-55) (“plaintiffs filed this huge motion [for appointment of receiver] which detailed in great verbiage ... how our transportation had failed, and to me that was a real wake up call,” and describing how Erste then decided to ask plaintiff to resign); Winder Decl. ¶ 101 (stating that Erste asked plaintiff to resign on February 3, 2003, about one week after the filing of the receivership motion, and describing his subsequent filing with the Inspector General stating: “I was certain I was being retaliated against for telling the truth to Erste and the DCPS and ... Baach about departmental problems in meeting the [.Petties ] Court Order.”); see also Second Am. Compl. ¶48 (“Mr. Winder expressed his concerns to Special Master Baach that he was being set up as the ‘fall guy’ by defendant Erste and Ms. Mazyck for defendant Erste’s failings.”).
*187 In opposing summary judgment, plaintiff makes much of the issue of “whether the failure of DCPS’s Transportation Department arose from any failure on Winder’s part, or whether the ‘failure’ arose from defendants’ refusal to comply with the Court’s Orders in Petties.” Pl.’s Mem., at 46-47. But the Court need not resolve the factual issue of who was to blame for the District’s compliance problems in Petties in order to resolve plaintiffs FMLA claims, for the undisputed record establishes that reasons wholly unrelated to plaintiffs sick leave — primarily, laying fault upon plaintiff for the problems in the Petties case, deservedly or not, and silencing a dissenting voice — motivated plaintiffs termination. Plaintiff himself attested to this at his deposition:
Q: You think you were fired because you took sick leave?
A: I don’t know why I was fired. I really don’t. To this day, I don’t know. The only thing I can even comprehend is that I spoke out well before my termination. I spoke out throughout my tenure. I spoke out in January [2003] specifically to the attorney — to the IG.
Winder Depo. at 126. Plaintiffs statements to the Inspector General in late February 2003, contemporaneous with his firing, further indicate that he believed Erste blamed him, albeit wrongfully, for the potential receivership situation and threatened plaintiff with termination: “Mr. Erste stated we cannot accept receivership, it’s your fault if you can’t get these ‘F***g’ people to work ... if you can’t get them to work, you will be removed.” PL’s Ex. E, at 5. Thus, it is evident that while plaintiff steadfastly believes that defendants’ proffered reasons for termination are pretext, he does not assert they are “pretext for discrimination” against him for using sick leave, but instead that they are pretext for retaliating against him for publicly criticizing defendants. That is not sufficient to avoid summary judgment— plaintiff must come forward with some evidence that the “proffered reason was a pretext
for discrimination.” Stewart v. Ashcroft,
Considering, then, the issue of discrimination vel non, the Court weighs the weakness of plaintiffs prima facie case, which relies solely on temporal proximity to support an inference of causation, and the overwhelming evidence that the other factors described above, wholly unrelated to plaintiffs sick leave, motivated plaintiff’s termination. The Court concludes that no reasonable jury could find that defendants terminated plaintiff because he took sick leave. See Stewart, 352 F.3d at 430 (holding that, where employer offered nondiscriminatory reasons for adverse action, and “there is a complete lack of evidence in the record that indicates [protected status] was a factor,” no reasonable jury could find discrimination). Accordingly, the Court will grant defendants’ motion for summary judgment on plaintiffs federal and DC FMLA claims.
CONCLUSION
For the foregoing reasons, the Court will grant defendants’ motion for summary judgment in its entirety, with the exception of the contract claim in Count IX for benefits allegedly owed to plaintiff. A separate order accompanies this memorandum opinion.
Notes
. The individual defendants are: Louis Erste, Chief Operating Officer of the DCPS Division of Transportation; Kennedy Khabo, Operating Officer of the DCPS Division of Transportation; Janet McCullough, Labor Partnership Manager at DCPS; and Elfreda Massie, Acting Superintendent of DCPS. Plaintiff sues each of these defendants in their individual as well as official capacities, with the exception of Massie, who is sued only in her official capacity.
. This position is referred to in various documents as "director,” "executive director,” and "general manager.” See Winder Decl. ¶ 44 ("general manager”); PL's Ex. K ("director”); Defs.’ Ex. 3 at 2 ("executive director”); Defs.’ Ex. 5 ("Executive Director/General Manager”). The precise job title is immaterial to resolve the pending claims. For ease of reference, the Court will refer to the position as General Manager, which the record reflects was the formal job title by at least July 2002 and thereafter.
. Plaintiff has described the DCPS Transportation Division as being in receivership at various times.
See
Winder Decl. ¶ 29; PL’s Mem. at 4-5, 14-15. Judge Friedman’s order indicates that his appointment of a Transportation Administrator in 2000 and again in 2003 was distinct from receivership.
See Pet-ties,
. The precise duration of the medical leave— whether 30 days (Winder Decl. ¶ 18, 108) or two and a half weeks (Winder Depo. at 129) is immaterial.
. Plaintiff estimates that he is owed $40,000 in unused annual leave, $45,260 in comp time, and $8,000 in sick leave. See PL's Ex. I, at 7. Plaintiff also contends that defendants still owe him for pension contributions. See Second Am. Compl. ¶ 127.
. Plaintiff brings this claim against the District of Columbia and the DCPS defendants in their official capacities, and against Erste and McCullough in their individual capacities.
. The vacancy announcement contains a long list of duties, including: (1) determining that all "sums expended ... are properly accounted for and within budget appropriations”; (2) "addressing complaints and resolving problems” within the Transportation Division; (3) disapproving “any arrangements that are not in conformity with the law and established standards”; and (4) ensuring "compliance with all ... court mandates.” See Defs.' Ex. 7 at 1-2.
. Plaintiff virtually concedes that his communications to his supervisors, Erste and Khabo, are not protected under the First Amendment.
See
Pl.’s Mem. at 19 ("To the extent that Winder's communications with Erste and Kahbo were part of his routine or daily duties, it appears that these communications may no longer be protected under the First Amendment.”). Of course, there is no requirement that communications to supervisors be "daily or routine,” as plaintiff suggests. The standard is whether the speech is made "pursuant to” official duties.
Wilburn,
. Plaintiff contends that the correctness of his opinions — that is, the District’s failures to comply with the
Petties
orders — must be determined by the Court in order to evaluate whether his speech is entitled to First Amendment protection.
See
Pl.'s Mem. at 13-15. That would be true if the Court reached the second factor of the
Pickering
analysis— whether the governmental interest in promoting the efficiency of the public services it performs through its employees outweighs the employee's interest, as a citizen, in speaking out
(see O’Donnell,
. In light of the Court's conclusion that plaintiff’s speech was not protected under the First Amendment, the Court has no occasion to reach the separate qualified immunity defense raised by defendant Erste.
. Plaintiff’s breach of contract claim has a second prong pertaining to wrongful withholding of benefits due under the contract, including sick and annual leave and pension contributions. Second Am. Compl. ¶¶ 125— 27. The benefits aspect of this claim will be analyzed separately because it raises an issue that does not rest on whether plaintiff was employed at will.
. District of Columbia courts recognize a narrow exception to the at will doctrine under which a discharged employee may bring a tort action for "wrongful discharge when the sole reason for the discharge is the employee's refusal to violate the law, as expressed in a statute or municipal regulation.”
See Adams v. George W. Cochran & Co., 597 A.2d
28, 34 (D.C. 1991),
discussed
in
Holman v. Williams,
. Plaintiff also seeks to pursue a breach of contract claim based on defendant’s failure to provide performance evaluations. See Second Am. Compl. ¶ 125. However, considering that plaintiff could be fired at will — that is, notwithstanding positive performance evaluations — it makes no sense to let this claim proceed. Judgment in defendants' favor on the termination claim effectively precludes plaintiff from recovering based on the allegedly withheld evaluations.
. Plaintiff's suggestion that Tillery might testify lacks any basis in the record. Plaintiff has indicated Tillery does not recall making the statement. See Pl.'s Mem. at 37 n. 14.
. The Court also rejects the substantive due process claim on the merits. Only "abuse of power ... which shocks the conscience” can support a substantive due process claim.
See Fraternal Order of Police Dep’t of Corrections Labor Comm. v. Williams,
. Defendants also argued in their initial brief that plaintiff failed to produce evidence of a "serious health condition.”
See
Defs.' Mem. at 29-33. Defendants have not pursued this argument following plaintiff's responsive brief and declaration.
See
Pl.'s Mem. at 39-43 & Winder Deck ¶¶34, 104-09. In short, plaintiff submits that he had a "serious health condition” because he had bleeding gums and abscesses that required treatment with antibiotics and prescription painkillers from November 2002 through March 2003, and oral surgery and further gum treatment on approximately seven consecutive work days in March 2003.
Id.
This plainly meets that standard of a "serious health condition” under both the federal and DC FMLA.
See
29 C.F.R. § 825.114(a)(2)(i) (defining "serious health condition” in terms of a “period of incapacity ... of more than three consecutive calendar days” and "treatment by a health care provider on at least one occasion which results in a regiment of continuing treatment,” including prescription medication);
Chang v. Inst, for Public-Private P'ships, Inc.,
. For example, plaintiff states that he tried to fire DCPS employees he believed were guilty of stealing from vending machines, "but Erste prevented [him] from doing so.” Winder Decl. ¶ 51. Plaintiff also avers that he attempted to implement a policy against hiring persons with criminal convictions as bus drivers and attendants, but "Erste prevented [him] from doing so.” Id. ¶ 52. Plaintiff also disagreed with Erste's hiring choices, citing at least two people hired at "high salaries]” whom plaintiff considered an inappropriate "drain on the DCPS budget.” Id. ¶¶ 56-57. Plaintiff also notes that Erste fired two of plaintiff's aides-Mohamed J. Rahim and Elliott Jones — without his knowledge or approval. Id. ¶ 72.
Plaintiff also spoke out on numerous occasions regarding defendants' alleged failure to make efforts to comply with the Petties orders or cooperate with Special Master Baach. See, e.g., id. ¶¶ 83 ("I reported to Special Master Baach that DCPSA was not going to comply with the Petties decrees.”); ¶¶ 85-86 ("I forwarded an e-mail to Erste questioning the removal of $1.2 million dollars from the transportation budget of D.C.’s special education students.... I reported the diversion of these funds to Special Master Baach.”); ¶ 93 ("When Erste and Khabo failed to give Councilman Chavous straight answers, Chavous asked me to come to the witness table to answer questions. I did so.”).