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Asip v. Chesterfield County School Board

United States District Court, E.D. Virginia, Richmond Division

February 7, 2019

MICHAEL ASIP, Ed.D, Plaintiff,



         This case involves an employment dispute between the plaintiff, Michael Asip, and his former employer, the Chesterfield County School Board ("CCSB"), and its superintendent at the time, James F. Lane. The dispute stems from a debacle in which over 150 special education students did not receive transportation on the first day of school in 2016. Asip, who worked as the school system's Director of Exceptional Education, claims that CCSB forced him to resign due to his age and in breach of his employment contract. CCSB asserts that it rightfully terminated Asip because of his role in the transportation failures.

         The Court heard argument on CCSB's[1] motion for summary judgment on January 25, 2019. At the hearing, the Court announced that it would grant the motion as to Asip's Age Discrimination in Employment ("ADEA") claim and deny it as to his breach of contract claim. The ADEA claim fails because even if Asip could establish that he met his employer's legitimate expectations, he cannot show that CCSB's stated reason for firing him was pretext for age discrimination. Conversely, a genuine factual dispute exists as to whether CCSB breached Asip's employment contract by terminating him. Accordingly, the Court grants in part and denies in part CCSB's summary judgment motion.

         I. BACKGROUND

         Asip began working for CCSB in 2005 as the Assistant Director of Exceptional Education. CCSB promoted him to Director of Exceptional Education in 2008. In June, 2016, Asip decided to retire at the age of 63. CCSB allowed Asip to participate in its supplemental retirement program ("SRP"). Under the SRP Agreement, Asip retired effective July 1, 2016, reported back to work on August 1, 2016, and retained his position for eleven months, until the end of the current school year. As compensation, Asip would receive 175% of his last salary, paid over a five-year period. Simultaneously, he would also receive retirement benefits.

         Asip's staff members worked with Administrators of Special Education ("ASEs") and Coordinators of Special Education ("CSEs") from the county schools. The ASEs and CSEs from each school entered data regarding transportation needs for special education students into a Google document. They sent the document to the transportation department to coordinate rides for these students. In April, 2016, Assistant Director of Transportation Adrian Frierson gave a presentation to exceptional education[2] staff about the importance of submitting timely data into the Google document for the transportation department.

         On August 15, 2016, Frierson sent an e-mail to Asip and Assistant Director of Exceptional Education Ben Lewis, discussing special education transportation for the first week of school. Frierson informed them that staff members submitting transportation needs after a certain deadline would "greatly affect our operations and preparation for the first day of school." (Dk. No. 18-8, at 1.) Specifically, Frierson requested, "Please make your staff aware that, while we will continue to process students for transportation, no students will be added to routes after Auzust 23 rd to September 6th." (Id. (emphasis in original).) The e-mail went on to say, "Please contact your specialists and schools to inform them of the importance of timely and correct student data entry. Missing or incorrect documentation may also cause delays in busing assignments." (Id.) Neither Asip nor Lewis acted in response to the e-mail.

         CCSB transportation failed to pick up over 150 special education students on the first day of school in 2016. Lane, who served his first year as superintendent during the 2016-17 school year, received many complaints about the transportation failures. At a School Board meeting on October 17, 2016, Asip explained the special education transportation breakdown. Asip tried to highlight the uniqueness of the 2016 problem, but Lane pointed out that transportation failures had occurred in the past. They ultimately agreed that the number of students affected increased in 2016.[3] Lane also indicated at the meeting that no one person caused the systemic problem.

         Lane asked Director of Transportation Robert Wingfield to look into the failures. Frierson reported to Wingfield that the transportation department did not receive timely information from staff members regarding student needs. A computer server malfunction also contributed to the problem. Lane reviewed e-mails in which Frierson tried to communicate with Asip, ASEs, and CSEs to help prevent the transportation glitches. Lane indicated in an October 23, 2016 e-mail that he found it "clear" that the problem largely involved Asip's department, not the transportation department. (Dk. No. 17-2, at 44.) Lane also expressed concern that Asip has publicly minimized the problem by saying that the 2016 issues had not occurred in the past. Lane directed Assistant Superintendent Lyle Evans to investigate further. Evans found that Frierson "directly request[ed] intervention and assistance to ensure timely data entry of special education transportation needs." (Dk. No. 18-17, at 3.) According to Evans, if Asip or Lewis had followed through with Frierson's request, they would have decreased or eliminated the number of affected special education students.[4] Evans recommended a 10-day suspension for Asip and a 3-day suspension for Lewis.

         CCSB suspended 37-year-old Lewis for three days pursuant to Evans' recommendation. Lane decided to terminate Asip, claiming he did so for reasons related to the transportation crisis- namely, failing to act on Frierson's e-mail and minimizing the issue at the October CCSB meeting. Evans offered Asip the opportunity to resign, which he took, effective December 30, 2016. CCSB replaced Asip with a female in her thirties.[5] Lane did not punish anyone else for the busing failures.

         Asip filed a complaint against CCSB and Lane for (I) ADEA discrimination; (II) First Amendment retaliation for protected speech; and (III) breach of contract. Asip voluntarily dismissed Count II, the only count pertaining to Lane. CCSB moved for summary judgment on both remaining counts.

         II. DISCUSSION[6]

         A. ADEA

         The ADEA prohibits employers from discriminating against employees because of age. 29 U.S.C. § 623 (2016). To succeed on an ADEA claim, a plaintiff must prove that his employer took adverse employment action against him because of his age. Id; Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 513 (4th Cir. 2006). Under the McDonnell Douglas burden-shifting scheme, [7] if the plaintiff presents a prima facie case of discrimination, the burden shifts to the defendant to articulate a valid, non-discriminatory reason for termination. Adams v. Trs. of the Univ. of N.C. Wilmington,640 F.3d 550, 558 (4th ...

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