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Termination may have been breach, not discrimination.

Byline: Virginia Lawyers Weekly

Where an employee was found to have been at least partially responsible for a transportation failure that left more than 150 special needs students stranded on the first day of school, the employee's subsequent termination did not constitute unlawful discrimination, but it may have been a breach of his employment contract.


In 2005, plaintiff Michael Asip began working for the Chesterfield County School Board as the Assistant Director of Exceptional Education. He was promoted to director three years later. In 2016, Asip decided to retire at the age of 63 and CCSB agreed to let him participate in its supplemental retirement program. Under the SRP agreement, Asip's retirement was effective on July 1, 2016, but he was to report back to work on Aug. 1, 2016 and retain his position for eleven months.

Asip's staff worked with administrators and coordinators of special education from the county schools who were responsible for gathering data regarding the transportation needs of special education students and sending that information to the transportation department to coordinate rides for these students. On Aug. 15, 2016, the Assistant Director of Transportation, Adrian Frierson, e-mailed Asip and his 37-year-old assistant director, Ben Lewis, asking them to contact their specialists and schools to inform them of the importance of timely and correct student data entry. Neither Lewis nor Asip responded to the e-mail.

CCSB transportation failed to pick up more than 150 special needs students on the first day of school in 2016. After multiple complaints were received by the new superintendent, James F. Lane, Lane directed the Director of Transportation, Robert Wingfield, to look into the problem. In an Oct. 23, 2016 e-mail, Lane concluded that the problem largely involved Asip's department and not the transportation department.

An investigation by the assistant superintendent, Lyle Evans, also conducted at Lane's request, found that if Lewis or Asip had responded to Frierson's request for assistance, the number of students affected by the transportation failure would have been decreased or eliminated. Evans recommended a 10-day suspension for Asip and a 3-day suspension for Lewis.

CCSB followed the recommendation for Lewis and suspended him for three days. However, the recommendation was ignored for Asip and, instead, he was terminated. Asip was subsequently offered the opportunity to resign, which he accepted, effective Dec. 30, 2016. Asip's replacement was a female in her thirties. No one else was punished as a result of the transportation failure.

Asip filed a complaint against CCSB alleging discrimination under the Age Discrimination in Employment Act and breach of contract. CCSB now moves for summary judgment on both claims.


The evidence in this case shows that Asip did not meet CCSB's legitimate expectations at the time his employment ended. Lane expressed specific concerns that Asip failed to provide the assistance requested by the transportation department and that he failed to acknowledge the gravity of the situation. Although Asip may have met performance expectations in the past, he did not do so at a time reasonably close to his termination. As such, Asip is unable to make a prima facie case on his ADEA claim.

Moreover, even if Asip was able to demonstrate that he met CCSB's legitimate performance expectations, he was unable to demonstrate that CCSB's reasons for terminating him were pretext. There is no evidence in the record to suggest that age discrimination was the real motivation behind Asip's termination. That Asip's younger assistant was not punished as harshly is insufficient. Notably, the transportation director, who was an SRP employee like Asip, was not punished at all.

Asip has, however, presented sufficient evidence to withstand summary judgment on his breach of contract claim. The SRP plan and CCSB policy do not define the satisfactory performance standards that SRP employees must meet to avoid termination. Asip's failure to meet his employer's expectations under the ADEA standard is not sufficient to demonstrate that he failed to meet the undefined performance standards of his SRP contract.

Motion granted in part and denied in part.

Asip v. Chesterfield County School Board, Case No. 3:18-cv-261, Feb. 8, 2019. EDVA at Richmond (Gibney). VLW 019-3-061. 12 pp.

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Title Annotation:Asip v. Chesterfield County School Board, U.S. District Court for the Eastern District of Virginia
Publication:Virginia Lawyers Weekly
Date:Mar 8, 2019
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