UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
___________________________________ ) JILLIAN L. BROWN, ) ) Plaintiff, ) ) v. ) Civil Action No. 09-2456 (PLF) ) CHILDREN’S NATIONAL MEDICAL ) CENTER, et al., ) ) Defendants. ) ___________________________________ )
OPINION
This matter is before the Court on defendants’ motions to dismiss. For the
reasons discussed below, the motions will be granted in part and denied in part.
I. BACKGROUND
Plaintiff Jillian Brown, an African-American female, began her employment at
Children’s Hospital National Medical Center (“CNMC”), Emergency Medical Services for
Children (“EMSC”), National Resource Center (“NRC”), as a temporary employee in October
2002; she became a permanent employee, an Office Coordinator, in April 2003. Compl. at 8-9.
Among NRC’s employees were plaintiff’s direct supervisor, Edward Liao, id. at 9, Theresa
Morrison-Quintana, Partnership Outreach Team Leader, see id. at 2, Susan Eads Role, Director
of Partnerships and Public Policy, id. at 3, Jocelyn Hulbert, State Partnership Outreach
Coordinator, id. at 2, 10, and Kenneth Allen, id. at 5, Director of Program Planning and Training, id. at 22, to whom Morrison-Quintana and Hulbert reported, id. at 12.1 After Liao resigned in
July 2006, plaintiff assumed certain of his duties, including supervision of two Administrative
Assistants, Patricia Thompson and Nanette Pierre, both African American. Id. at 7-8. Plaintiff
then reported directly to the NRC’s Executive Director, Dr. Jane Ball. Id. at 9, 21.
In the fall of 2006, Dr. Ball announced her retirement effective at the end of that
year. Compl. at 10. According to plaintiff, Role and Allen “began pressuring [plaintiff] to join,
and later lead, a committee to align itself against Dr. Ball.” Id. Specifically, Role and Allen
intended to coerce Dr. Ball either to appoint one of them as the new Executive Director, or to
appoint both as Co-Directors, by threatening to accuse Dr. Ball of misappropriating federal
funds. Id. In furtherance of the plot, Role and Allen allegedly sought to obtain plaintiff’s
signature on a statement attesting to false allegations against Dr. Ball. Id. Plaintiff refused, and
instead reported these events to Kathryn Koepenick, the NRC’s Senior Human Resources
Consultant, in October 2006. Id. Apparently there was an investigation into Dr. Ball’s activities,
and in November 2006 she was “found . . . innocent.” Id. During the last week of December
2006, Dr. Ball allegedly warned plaintiff that she and Hulbert should “keep a low profile”
because Allen had them “on his radar.” Id. Dr. Ball allegedly shared her concerns with Tasmeen
Singh, who became NRC’s Executive Director as of January 1, 2007. Id.
On January 3, 2007, Singh requested a meeting with plaintiff to discuss
“accusations made against [her] by ‘many/several staff.’” Compl. at 12. Plaintiff was accused of
having said that Hulbert earned more than Morrison-Quintana, having forced Morrison-Quintana
1 Plaintiff has named Theresa Morrison-Quintana and Jocelyn Hulbert as defendants, as well as CNMC, Kathryn Kozpenick, and Tasmeen Singh.
2 to adjust her telecommuting schedule, and having behaved rudely to others because she was
dissatisfied with her job. Id. According to plaintiff, the events giving rise to these complaints
occurred several years earlier, see id. at 8; yet none had been raised with prior management
because plaintiff “was supposedly viewed as ‘intimidating and physically intimidating’ and a
‘favorite’ of [Dr.] Ball.” Id. During this meeting, Singh “made comments that made it obvious
that she was aware [plaintiff] had filed a charge of discrimination against a former employer
alleging racial discrimination.” Id. at 37. When plaintiff asked who had made complaints
against her, Singh responded that the complainant was Thompson, one of the administrative
assistants whom plaintiff supervised; other staff members allegedly confirmed Thompson’s
assertions. Id. at 12. Plaintiff later learned that Morrison-Quintana was her principal accuser.
See id. at 3, 14, 19.
Believing that “Dr. Ball’s fears were coming to fruition far sooner than [she]
expected,” on January 4, 2007, plaintiff called Hulbert to ask whether anyone had asked her
questions about plaintiff. Compl. at 13. Hulbert responded that, prior to January 3, 2007, Singh
“solicited feedback from her [about plaintiff],” and Hulbert had repeated “what she had heard”
from others. Id. Plaintiff allegedly warned Hulbert “to be careful because Dr. Ball . . . had the
same fears regarding . . . Hulbert.” Id.
On January 5, 2007, Singh and Koepenick informed plaintiff that she would be
suspended “for ‘bullying and intimidating’” Hulbert. Compl. at 13. Singh stated that “several
employees made allegations against [plaintiff],” and because “too many [were] saying the exact
same thing . . . an investigation would be conducted.” Id. Plaintiff believed that “she was being
subjected to a hostile work environment because one, or ‘many/several’ employees were making
3 false allegations against her, the fabricated allegations were only supported by gossip and
hearsay,” and that no one had any “intention of interviewing, question[ing] or speaking with [her]
to hear her side of the story.” Id. Rather, plaintiff “was already considered to be guilty of the
allegations,” id., and indeed was found “guilty of the allegations, additional transgressions,
and . . . was rude, had communication issues, was a bully, intimidating, physically intimidating,
confrontational, participates in unprofessional gossip discussions, and was retaliatory.” Id. at 14.
On January 11, 2007, plaintiff reported to the NRC “to learn of . . . the
investigative findings.” Compl. at 14. On that date, Singh issued a Final Written Notice to
plaintiff, id., which in relevant part stated:
[T]he notice is being issued because of concerns having to do with 1. intimidating conduct at the work place and 2. inappropriate communications of confidential information and 3. inappropriate conversations regarding other employees. As your manager, I have learned about this behavior through my investigation and through unsolicited complaints.
In response to these concerns and complaints, I spoke to you on January 3, 2007 to allow you the opportunity to respond and present your perspective. At the conclusion of this conversation I directed you not to have any conversations regarding our meeting with any staff member. However, the next morning it was brought to my attention that you called a staff member directly to ask if that individual had spoken to me regarding your performance and made comments to that individual about her own job security. As a result of this retaliatory and intimidating behavior, the decision was made to immediately remove you from the workplace by initiating a suspension pending the completion of the investigation. As part of that process, we gave you an opportunity to respond to the complaints made against you.
At this time, I have formally recommended that we lift the suspension so you can return to work. This notice is to provide you with clear expectations of the sorts of behaviors that are and are not permitted [, and plaintiff was instructed to] refrain from:
4 1. Conversations with employees about any NRC employee’s salary (including your own) or budget information or any other sensitive employment or contract information.
2. Unprofessional “gossip” such as discussions about who might get fired or warning employees that they are “next to go” or acting in other ways that lend themselves to a hostile work environment for those around you.
3. Making inappropriate remarks to co-workers regarding the reasonableness of compensation for NRC staff, the qualifications of employees for their pay grade and job duties, or the productivity of co-workers.
4. Being confrontational and/or intimidating in your demeanor including the use of an unusually loud tone or the use of physical gestures that may reasonably be construed as intimidating to any employee.
5. Retaliatory conduct against other employees who may have brought concerns about your conduct to the manager. This includes harassing dialogue with employees such as asking them directly whether they complained, engaging in conversations with any employee about what was said or the terms of the suspension or this final notice, or any other conversations related to the complaints brought against you.
* * *
It is expected that you demonstrate cooperative, courteous and professional behavior at all times. Any incidents of not responding to requests in a reasonable timeframe, or any other inappropriate actions/inaction or problematic communication is also not acceptable behavior under the terms of this notice.
While it is my sincere intention to work with you in good faith to overcome these performance issues, I need to be absolutely clear that failure to follow the instructions above, engagement in any form of retaliation or any continued performance problem will result in your immediate termination.
5 Pl.’s Mem. in Opp’n to Defs.’ Mot. to Dismiss [Dkt. #9] (“Pl.’s First Opp’n”), Ex. F (Final
Written Notice) at 1-2 (emphasis added).2
On January 16, 2007, plaintiff “filed a complaint with the EEOC and copied . . .
Singh, . . . Koepenick and the Human Resources Department on the complaint.” Compl. at 25;
see id. at 16, 33. The complaint took the form of correspondence to the Washington Field Office
of the Equal Employment Opportunity Commission (“EEOC”). Pl.’s First Opp’n, Ex. J (Letters
from plaintiff to EEOC dated January 15, 2007). After describing at length her suspension and
the Final Written Notice, plaintiff requested that the EEOC “review [her] submission and . . .
investigate this tangible employment action, discrimination/disparate treatment, retaliation,
harassment, and hostile work environment.” Id., Ex. J at J2 (page number designated by
plaintiff). Plaintiff submitted an additional letter to the EEOC. See id., Ex. K (Letter from
plaintiff to Hal Budnick, Intake Officer, Washington Field Office, EEOC, dated May 11, 2007).
The outcome of this exchange is not clear.
After these events, plaintiff allegedly no longer received group e-mail messages,
was not notified of mandatory training, was denied access to CNMC’s personnel policies and
was prevented “from utilizing CNMC’s Employee Complaint process to file internal grievances.”
Compl. at 24. Her workload was increased to include the taking of meeting minutes (previously
a task assigned to an employee at a lower grade), making photocopies, and covering the front
2 Singh allegedly “made comments that made it obvious that she was aware that [plaintiff] filed a charge of discrimination against a former employer alleging racial discrimination.” Compl. at 37. These comments may have been made either at the meeting during which the Final Written Notice was issued or at the time plaintiff was notified of her termination. According to plaintiff, both the disciplinary actions taken against her and her termination by RIF were “directly related to her prior protected activity.” Id.
6 desk when the receptionist was not available, while in other respects she was “stripped . . . of her
duties.” Id. at 25. For example, plaintiff no longer was responsible for processing and
reconciling check and travel requests, id. at 6, was denied access to files containing budget
information, id. at 8, was denied a master key which would have given plaintiff access to other
employees’ offices, id., and otherwise was “held up to all as an employee who could not be
trusted with keys, files, [and] confidential information[.]” Id. at 22. Singh allegedly “monitored
and questioned [her] every move, evaluated and reevaluated every task [she] performed,
micromanaged . . ., marginalized [her] within the department, effectively demoted [her] and
[became] an oppressive presence in [her] work environment.” Id. at 25.
Plaintiff took particular exception to the conditions set forth in the Final Written
Notice directing her to refrain from using a tone of voice or physical gestures that reasonably
could be construed as intimidating to any employee. In her view, this provision allowed her
coworkers “to construe [her] movements in any way that they saw fit,” and the terms “were
meant to humiliate [her] and to place her in a subservient position to her Caucasian coworkers.”
Compl. at 17. She believed that she “was prohibited from using body language,” and [e]ven
though communication is more nonverbal than verbal, [she] faced immediate termination if it
were construed that she used any body language.” Id. at 26. She was “in constant fear of losing
her job because the language of the Final Written Notice was so subjective that . . . any employee
could . . . accuse [her] of ‘being confrontational and/or intimidating in [her] demeanor[.]’” Id. In
addition, according to plaintiff, Singh, Koepenick and some of plaintiff’s co-workers allegedly
“used stereotypes,” describing her “as the loud black woman who rolls her eyes, was angry,
7 physically intimidated everyone, used body language, was a bully and had a problem
communicating.” Id. at 16.
Plaintiff’s employment came to an end on March 5, 2007, at which time Singh
and Koepenick informed her that, “[a]s a result of an internal evaluation of the administrative
personnel needs at the [NRC], the position of Office Coordinator [was] being eliminated.”
Compl. at 17. Pursuant to a reduction in force (“RIF”), four employees were terminated, three
African American (plaintiff, Thompson and Pierre) and one Caucasian. Id. at 3, 18. Three new
administrative positions were created, and the position of Staff Assistant “would assume all of
the prior responsibilities” of plaintiff and the two terminated African-American Administrative
Assistants. Id. According to plaintiff, NRC merely terminated her, changed the position title,
and transferred her responsibilities to a newly titled position, such that she “was terminated via a
pretextual RIF.” Id. Plaintiff deemed her termination by RIF the culmination of a series of
“numerous negative tangible employment actions,” Compl. at 19, designed to accomplish what
otherwise could not have occurred under the prevailing law. Pl.’s First Opp’n at 4-5.
On July 12, 2007, plaintiff filed a charge of discrimination with the EEOC. Mem.
in Supp. of Mot. to Dismiss [Dkt. #7-1] (“Defs.’ First Mem.”), Ex. A (Charge of Discrimination,
No. 570-2007-00866 dated July 12, 2007). According to the charge, plaintiff alleged that CNMC
discriminated against her on the basis of her race and in retaliation for prior EEO activity
between January 3, 2007 and March 13, 2007. Id., Ex. A. CNMC allegedly was responsible for
“Race-Based and Retaliatory Discrimination; Retaliation; Harassment; Intentional Infliction Of
Emotional Distress; Hostile Work Environment; Adverse/Tangible Employment Actions
(Heightened Scrutiny, Disparate Treatment, Decreased Responsibilities, Reprimand, Negative
8 Evaluation, Demotion, Discharge); Pretextual Argument For My Termination; Constructive
Termination; Actual termination (by way of the pretextual RIF[]).” Id., Attach. at 2.3 The EEOC
was “unable to conclude that the information obtained [during its investigation] establishes
violations” of the applicable employment discrimination statutes. Compl., Ex. A (Dismissal and
Notice of Rights dated September 23, 2009).
Plaintiff brings this action under Title VII of the Civil Rights Act of 1964 (“Title
VII”), as amended, see 42 U.S.C. § 2000e et seq., under 42 U.S.C. § 1981 (“Section 1981”), and
under the District of Columbia Human Rights Act (“DCHRA”), see D.C. Code § 1-1402.01 et
seq. In addition, she brings common law claims of defamation, negligence, intentional infliction
of emotional distress (“IIED”), and wrongful termination in violation of public policy. Plaintiff
demands that any reference to her suspension and final written notice be expunged from her
personnel file, that each defendant send plaintiff a letter of apology, and that a letter of reprimand
be placed in each individual defendant’s personnel file. She also demands unspecified
compensation for past and future economic and non-economic losses.
II. DISCUSSION
The Federal Rules of Civil Procedure require that a complaint contain “‘a short
and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give
the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957));
3 Plaintiff attached to her EEOC complaint a four-page typewritten document called “Complaint-Particulars.”
9 accord Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). Rule 12(b)(6) tests the legal
sufficiency of a complaint. See Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). “To
survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S.
Ct. 1937, 1949 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. at 570. A complaint must be
dismissed under Rule 12(b)(6) if it consists only of “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements.” Ashcroft v. Iqbal, 129 S. Ct. at 1949.
On a Rule 12(b)(6) motion, the Court treats the factual allegations of a plaintiff’s
complaint as if they were true, and draws all reasonable inferences stemming from such factual
allegations in the plaintiff’s favor. See Erickson v. Pardus, 551 U.S. at 94; Maljack Prods., Inc.
v. Motion Picture Ass’n of Am., Inc., 52 F.3d 373, 375 (D.C. Cir. 1995). While the complaint is
to be “construed liberally in the [plaintiff’s] favor,” the Court “need not accept inferences drawn
by plaintiff[] if such inferences are unsupported by the facts set out in the complaint.” Kowal v.
MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994); see also Bell Atl. Corp. v. Twombly,
550 U.S. at 555 (stating that a court is “not bound to accept as true a legal conclusion couched as
a factual allegation”). Although “[a] pro se complaint . . . ‘must be held to less stringent
standards than formal pleadings by lawyers,’” Atherton v. D.C. Office of the Mayor, 567 F.3d
672, 681 (D.C. Cir. 2009) (quoting Erickson v. Pardus, 551 U.S. at 94), cert. denied, 130 S. Ct.
2064 (2010), “a pro se complainant must plead ‘factual matter’ that permits the court to infer
‘more than the mere possibility of misconduct.’” Id. at 681-82 (quoting Ashcroft v. Iqbal, 129 S.
Ct. at 1950).
10 B. Discrimination Based on Race
1. Title VII
Under Title VII, it is “an unlawful employment practice for an employer . . . to fail
or refuse to hire or to discharge any individual, or otherwise to discriminate against any
individual with respect to [her] compensation, terms, conditions, or privileges of employment,
because of [her] race[.]” 42 U.S.C. § 2000e-2(a)(1). Nor may an employer discriminate against
an employee who has opposed an unlawful employment practice by making a charge, testifying,
assisting or participating in an investigation or proceeding arising from a violation of Title VII.
See 42 U.S.C. § 2000e-3(a). This language identifies “two elements for an employment
discrimination case: (I) the plaintiff suffered an adverse employment action (ii) because of [her]
race” or prior protected activity. Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 493
(D.C. Cir. 2008).
Defendants represent that the complaint “goes on for pages concerning the alleged
harassing and retaliatory conduct [plaintiff] claims she experienced,” Defs. Children’s Nat’l
Med. Ctr. and Kathryn Kopenick’s Mem. in Supp. of Mot. to Dismiss (“Defs.’ Second Mem.”)
[Dkt. # 12-1] at 7, focusing on “her purported unfair treatment after . . . Singh became director of
her department in January 2007.” Id. at 7-8. Yet, defendants continue, plaintiff’s “allegations of
racial discrimination and retaliation are belied by her own factual assertions,” id. at 8, principally
those which “tie the alleged disciplinary action and purported hostile conduct . . . to her prior
relationship with the former department head,” id., her refusal to participate in a scheme to
appoint the new Director of the NRC, id., and retribution for supporting Dr. Ball. Id. at 9.
11 Defendants’ reading of the complaint is overly narrow and appears to ignore
plaintiff’s awkward but perceptible efforts to tie defendants’ adverse employment actions to her
race. For example, plaintiff alleges that she, “an African-American employee of . . . CNMC, was
treated in a manner different from her similarly situated coworkers, and was subjected to . . .
CNMC’s altering the terms and conditions of her employment.” Compl. at 15. She also alleges
that the RIF was a pretext for discrimination against her and other African American employees.
Id.; see id. at 17-19, 30. And with her assertion that “the disciplinary actions taken against her
and the termination of her employment from CNMC . . . [were] directly related to her prior
protected activity,” Compl. at 37; see id. at 25, 33, plaintiff manages to allege a claim of
retaliation in violation of Title VII. It matters not that plaintiff failed to “specifically mention
race-based discrimination until many pages into her Complaint.” Pl.’s Mem. in Opp’n to Defs.
Children’s Nat’l Med. Ctr.’s and Kathryn Koepenick’s Mot. to Dismiss [Dkt. #14] (“Pl.’s Second
Opp’n”) at 21.
As the Court construes the complaint, plaintiff alleges that defendants both
discriminated against her on the basis of her race and retaliated against her by suspending her, by
issuing a Final Written Notice, and by terminating her through a pretextual RIF. The complaint
is not a model of clarity; it is rambling, disorganized and repetitive. But it is also prepared by a
pro se plaintiff and its allegations must be construed liberally. See Haines v. Kerner, 404 U.S.
519, 520 (1972); Atherton v. D.C. Office of the Mayor, 567 F.3d at 681. Notwithstanding the
imprecise and inartful drafting, plaintiff’s complaint goes beyond mere conclusory statements
and sets forth specific factual allegations that tend to support her causes of action. In other
12 words, the complaint does not “stop[] short of the line between possibility and plausibility of
entitlement to relief.” Ashcroft v. Iqbal, 129 S. Ct. at 1949.
Moreover, plaintiff’s obligation at the pleading stage is to put defendants on
notice of the claims against them and the bases on which they rest. Plaintiff accomplishes this
task; she need not plead all the facts she ultimately must prove in order to prevail on the merits.
See Atchison v. District of Columbia, 73 F.3d 418, 421-22 (D.C. Cir. 1996); see also
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (“This simplified notice pleading
standard relies on liberal discovery rules and summary judgment motions to define disputed facts
and issues and to dispose of unmeritorious claims.”). Treating plaintiff’s factual allegations as if
they were true, and drawing all reasonable inferences stemming from such factual allegations in
her favor, the Court concludes that plaintiff adequately states a claim of discrimination based on
race and a claim for retaliation under Title VII. See, e.g., Winston v. Clough, No. 07-1411, 2010
WL 1875626, at *8 (D.D.C. May 11, 2010); Kornegay v. AT&T, No. 05-0001, 2006 WL 825622,
at *3 (D.D.C. Mar. 29, 2006) (“In other words, plaintiff claims that he was a qualified employee
terminated under false pretenses because of his race [or protected activity] and therefore he need
not plead all the elements of a Title VII race discrimination [or retaliation] claim in order to state
a claim.”) (brackets omitted).
The next question is who may properly be sued under Title VII. An employer is defined
under Title VII as “a person engaged in an industry affecting commerce who has fifteen or more
employees . . . and any agent of such a person.” 42 U.S.C. § 2000e(b). Ostensibly, then, a
complainant’s supervisors or co-workers may be considered the agents of an employer. But the
District of Columbia Circuit has rejected the notion that such individuals may be held personally
13 liable under Title VII. “[W]hile a supervisory employee may be joined as a party defendant in a
Title VII action, that employee must be viewed as being sued in his capacity as the agent of the
employer, who is alone liable for a violation of Title VII.” Gary v. Long, 59 F.3d 1391, 1393
(D.C. Cir. 1995) (citing Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991)), cert.
denied, 516 U.S. 1011 (1995). To the extent that plaintiff joins Singh, Morrison-Quintana,
Hulbert and Koepenick as defendants to her Title VII claims because of their status as agents of
the employer, these claims “essentially merge[] with her claim against [CNMC].” Id. Plaintiff’s
Title VII claims against Singh, Morrison-Quintana, Hulbert and Koepenick in their individual
capacities therefore must be dismissed. See, e.g., Laurent v. Bureau of Rehab., Inc., 544 F. Supp.
2d 17, 25 (D.D.C. 2008) (granting summary judgment for the individual defendants who may be
sued in their official capacities, not their individual capacities, under Title VII); Isse v. Am. Univ.,
540 F. Supp. 2d 9, 27 (D.D.C. 2008) (dismissing Title VII claim against plaintiff’s immediate
supervisor); McMillan v. District of Columbia, 466 F. Supp. 2d 219, 223 (D.D.C. 2006)
(dismissing Title VII claim against acting department chief in his individual capacity).
2. Section 1981
Section 1981 of Title 42 of the United States Code provides: “All persons within
the jurisdiction of the United States shall have the same right in every State and Territory to
make and enforce contracts . . . as is enjoyed by white citizens.” 42 U.S.C. § 1981(a). The
statute further “prohibits racial discrimination in the ‘making, performance, modification, and
termination of contracts, and the enjoyment of all benefits, privileges, terms and conditions of the
contractual relationship.’” Pollard v. Quest Diagnostics, 610 F. Supp. 2d 1, 17-18 (D.D.C. 2009)
14 (quoting 42 U.S.C. § 1981(b)). It is established that such contracts include employment
contracts. See Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 460 (1975). To state a claim
under Section 1981, a plaintiff “must identify an impaired ‘contractual relationship’ . . . under
which [she] has rights,” Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 476 (2006), and she
must allege “some facts that demonstrate that race was the reason for the defendant’s actions.”
Bray v. RHT, Inc., 748 F. Supp. 3, 5 (D.D.C. 1990).
Defendants argue that, because the complaint fails to allege discrimination based
on race, it therefore fails to allege a Section 1981 claim. “Rather, [p]laintiff specifically alleges
that the conduct about which she complains stemmed from a power struggle within her
department and her support of the outgoing Executive Director.” Defs.’ Second Mem. at 9; see
Defs.’ First Mem. at 7. For the same reasons that the Court has concluded that the factual
allegations of plaintiff’s complaint support her Title VII claim, these same allegations necessarily
support her Section 1981 claim of discrimination based on race.
Because the complaint includes no express allegations as to the existence of a
formal, written contract or employment agreement between plaintiff and CNMC, the Court
presumes that plaintiff was an at-will employee of CNMC. Carl v. Children’s Hosp., 702 A.2d
159, 162 (D.C. 1997) (Terry, J., concurring) (“This court has long and consistently adhered to the
rule that employment is presumed to be at will, unless the contract of employment expressly
provides otherwise.”). It is established that an at-will employee may maintain an action under
Section 1981. See Sheppard v. Dickstein, Shapiro, Morin & Oshinsky, 59 F. Supp. 2d 27, 32
(D.D.C. 1999) (holding that Section 1981 covers at-will employment agreements because
“District of Columbia law . . . treat[s] at-will agreements as contracts”).
15 An employment discrimination claim brought under Section 1981 “mirrors, in
most ways, an employment discrimination claim brought pursuant to Title VII . . . . [But]
[u]nlike Title VII, individual liability can be imposed for personal involvement in discriminatory
activity that violates Section 1981.” Zaidi v. Amerada Hess Corp., 723 F. Supp. 2d 506, 516-17
(E.D.N.Y. 2010) (citations omitted). Moreover, “[i]ndividuals with supervisory authority . . .
may be held liable under [Section] 1981.” Tnaib v. Document Technologies, LLC, 450 F. Supp.
2d 87, 92 (D.D.C. 2006) (citing cases); see also Sheppard v. Dickstein, Shapiro, Morin &
Oshinsky, 59 F. Supp. 2d at 33 (finding that individual supervisors can be sued under Section
1981 and denying their motion to dismiss); see Page v. Winn-Dixie Montgomery, Inc., 702 F.
Supp. 2d 1334 (S.D. Ala. 2010) (noting that “a claim for individual liability under [Section] 1981
requires an affirmative showing linking the individual defendant with the discriminatory
action.”). Therefore, under District of Columbia law, an at-will employee alleging discrimination
based on race may bring a Section 1981 claim not only against her employer but also against
those supervisors who take actions in violation of Section 1981. At this stage of the proceedings
and on the current record, the complaint sufficiently alleges a Section 1981 claim against all
defendants. Their motions to dismiss the Section 1981 claim will be denied without prejudice.
3. District of Columbia Human Rights Act
Under the DCHRA, it is unlawful for an employer “[t]o fail or refuse to hire, or to
discharge, any individual[,] or otherwise to discriminate against any individual, with respect to
[her] compensation, terms, conditions, or privileges of employment, including promotion; or to
limit, segregate, or classify his employees in any way which would deprive or tend to deprive any
16 individual of employment opportunities, or otherwise adversely affect [her] status as an
employee” on the basis of her race. D.C. Code § 2-1402.11(a)(1). The term “employer” means
“any person who, for compensation, employs an individual,” as well as “any person acting in the
interest of such employer, directly or indirectly.” D.C. Code § 2-1401.02(10). An individual
therefore may be held liable personally under the DCHRA if she is acting on behalf of an
employer. Wallace v. Skadden, Arps, Slate, Meagher & Flom, 715 A.2d 873, 888 (D.C. 1998)
(finding that the DCHRA applies to individual partners of law firm because the partners acted in
the interest of the employer, a law partnership); see Zelaya v. UNICCO Serv. Co., 587 F. Supp.
2d 277, 284-85 (D.D.C. 2008) (concluding that plaintiff’s former supervisor can be individually
liable under the DCHRA); Alston v. District of Columbia, 561 F. Supp. 2d 29, 44-45 (D.D.C.
2008) (allowing claim under D.C. Code § 2-1402.41 for discrimination based on disability to
proceed as against agents of the District of Columbia Public Schools, an educational institution
covered by the DCHRA); MacIntosh v. Bldg. Owners and Managers Ass’n Int’l. 355 F. Supp. 2d
223, 227-28 (D.D.C. 2005) (citing Wallace, denying motion of association’s Executive Director
and a Vice President to dismiss DCHRA claims against them in their individual capacities).
“The limitation period for a civil action brought pursuant to the [DCHRA] is one
year.” Jones v. Howard Univ., 574 A.2d 1343, 1345 (D.C. 1990) (citing Davis v. Potomac Elec.
Power Co., 449 A.2d 278, 280-81 (D.C. 1982)). “When a charge of discrimination is filed with
the EEOC in the District of Columbia, a claim is automatically cross-filed with the D.C. Office
of Human Rights (‘DCOHR’) pursuant to a ‘worksharing agreement’ between the two agencies.”
Ellis v. Georgetown Univ. Hosp., 631 F. Supp. 2d 71, 78 (D.D.C. 2009); Ware v. Nicklin Assocs.,
Inc., 580 F. Supp. 2d 158, 164 (D.D.C. 2008) (citing Estenos v. PAHO/WHO Fed. Credit Union,
17 952 A.2d 878 (D.C. 2008)); see 29 C.F.R. § 1601.13(a)(4)(ii)(A). The timely filing of a
complaint with the DCOHR “toll[s] the running of the statute of limitations while the complaint
is pending,” D.C. Code § 2-1403.16(a), and “the timely filing of a charge with the EEOC, and the
automatic cross-filing of a claim with the DCOHR that follows, is sufficient to toll the one-year
statute of limitations for filing a claim under the DCHRA.” Ellis v. Georgetown Univ. Hosp.,
631 F. Supp. 2d at 78 (citations omitted). When plaintiff filed her complaint with the EEOC, she
named CNMC as the entity believed to have discriminated against her. The one-year limitations
period therefore was tolled as to CNMC.
Defendants Singh, Morrison-Quintana, Hulbert and Koepenick were not named as
respondents by plaintiff in her EEOC complaint. They move to dismiss plaintiff’s DCHRA
claims as untimely – she filed her lawsuit in December 2009, “more than 2 ½ years after the last
possible date that the purported discrimination or retaliation could have occurred.” Defs.’ First
Mem. at 9.4 Plaintiff counters that she timely filed her charge of discrimination with the EEOC,
and by doing so she “automatically co-filed” with the DCOHR. Pl.’s First Opp’n at 8; Pl.’s
Second Opp’n at 7-8. But plaintiff’s charge of discrimination did not name the individual
defendants as the parties responsible for the discrimination and retaliation she suffered. Plaintiff
cannot now proceed as against the individual defendants on DCHRA claims that were neither
brought within the one-year statute of limitations nor filed with the EEOC or the DCOHR. The
Court will dismiss without prejudice plaintiff’s DCHRA claims against defendants Singh,
Morrison-Quintana, Hulbert and Koepenick; these claims may proceed as against CNMC only.
4 Although defendant Koepenick does not move for dismissal of plaintiff’s DCHRA claims on this ground, the others’ argument applies equally to her.
18 C. Intentional Infliction of Emotional Distress
Intentional infliction of emotional distress consists of “(1) extreme and outrageous
conduct on the part of the defendant which (2) either intentionally or recklessly (3) cause[d] the
plaintiff severe emotional distress.” Halcomb v. Woods, 610 F. Supp. 2d 77, 80 (D.D.C. 2009)
(citing Larijani v. Georgetown Univ., 791 A.2d 41, 44 (D.C. 2002)); see also The Cuneo Law
Group, P.C. v. Joseph, 669 F. Supp. 2d 99, 121 (D.D.C. 2009); Evans v. District of Columbia,
391 F. Supp. 2d 160, 170 (D.D.C. 2005). “To establish the required degree of outrageousness [to
sustain an IIED claim], the plaintiff must allege conduct so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.” Kerrigan v. Britches of
Georgetowne, 705 A.2d 624, 628 (D.C. 1997) (internal citations and quotation marks omitted).
This “very demanding standard” is “only infrequently met.” Dale v. Thomason, 962 F. Supp.
181, 184 (D.D.C. 1997). “Especially in the employment context, the standard is exacting.”
Evans v. District of Columbia, 391 F. Supp. 2d at 170. “[M]ere insults, indignities, threats,
annoyances, petty oppressions, or other trivialities” cannot support an IIED claim, Halcomb v.
Woods, 610 F. Supp. 2d at 80 (quoting Restatement (Second) of Torts § 46 cmt. d (1965)), and
termination is not conduct so extreme and outrageous that it exceeds the bounds of decency. See
Brown v. Sim, No. 03-2655, 2005 WL 3276190, at *4 (D.D.C. Sept. 30, 2005); Elliott v.
Healthcare Corp., 629 A.2d 6, 9 (D.C. 1993); see also Duncan v. Children’s Nat’l Med. Ctr.,
702 A.2d 207, 211-12 (D.C. 1997) ( “[G]enerally, employer-employee conflicts do not rise to the
level of outrageous conduct.”).
19 Plaintiff’s complaint includes a section titled “Intentional Infliction of Emotional
Distress,” see Compl. at 28-31, in which she describes how her co-workers “were watching [her]
movements” in order to determine whether her behavior or demeanor violated the terms of the
Final Written Notice, such that she “arrived at work each day expecting to be fired.” Id. at 28.
Defendants move to dismiss the IIED claim because the complaint alleges neither severe
emotional distress on plaintiff’s part nor conduct rising to the level of outrageousness necessary
to sustain an IIED claim. Defs.’ First Mem. at 9-11; Defs.’ Second Mem. at 10-12.
That plaintiff “was under a great deal of intentional pressure,” Compl. at 29, does
not adequately allege that she suffered severe emotional distress. Neither the scrutiny she
endured nor the prospect of immediate termination for a violation of the terms of the Final
Written Notice comprises conduct “so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in
a civilized community.” Bernstein v. Fernandez, 649 A.2d 1064, 1075 (D.C. 1991). The Court
concludes that the complaint fails to state an IIED claim. The claim therefore will be dismissed
as against all defendants. See Darrow v. Dillingham & Murphy, LLP, 902 A.2d 135, 139 (D.C.
2006) (allegations that office manager was stripped of her duties, blocked from access to billing
software, and employer’s placement of an advertisement for a new office manager did not state
an IIED claim); Crowley v. N. Am. Telecomm. Ass’n, 691 A.2d 1169, 1172 (D.C. 1997)
(allegations that employee “was subjected to contempt, scorn and other indignities in the
workplace by his supervisor and an unwarranted evaluation and discharge” fail to state an IIED
claim); Elliott v. Healthcare Corp., 629 A.2d at 9 (employee’s discharge was not extreme and
outrageous as a matter of law).
20 D. Negligence
The basic elements of a negligence claim are that defendant owes plaintiff a duty
of care, defendant breached this duty and thereby caused plaintiff harm. See, e.g., District of
Columbia v. Harris, 770 A.2d 82, 87 (D.C. 2001). Defendants argue that the complaint fails to
state a negligence claim against them because it lacks allegations regarding a duty of care owed
to plaintiff. Defs.’ First Mem. at 12; Defs.’ Second Mem. at 13. Plaintiff counters that Singh
“owed at minimum[] a duty of fair treatment to [p]laintiff, Pl.’s First Opp’n at 16, as did
Koepenick. Pl.’s Second Opp’n at 23. Plaintiff does not articulate what this duty entails, and
instead appears to allege that, if there was negligence at all, the actual negligent party was
CNMC. See Compl. at 35-36.
Insofar as the conduct giving rise to plaintiff’s negligence claims is the same
conduct giving rise to her Title VII claims, the negligence claims appear to be duplicative.
Accordingly, the Court will dismiss the negligence claims without prejudice. See Wade v.
Washington Metro. Area Transit Auth., No. 01-0334, 2005 WL 1513137, at *6 (D.D.C. June 27,
2005) (finding that negligence claim arising from defendant’s alleged failure to assure that
company’s “sexual harassment policies were not violated, and more specifically, to assure that
[p]laintiff was not subjected to a hostile work environment . . . is preempted by Title VII as the
injury arises out of the alleged harassment itself”); Crosten v. Kamauf, 932 F. Supp. 676, 684 (D.
Md. 1996) (dismissing common law negligence claims “to impose liability on [the employer] for
its alleged failure to conform to the dictates of Title VII in its efforts to prevent sexual
harassment, or to properly respond to a report of sexual harassment” because they “merely restate
the claim brought under Title VII”).
21 E. Wrongful Termination in Violation of Public Policy
As noted earlier, the Court presumes that plaintiff is an at-will employee. An
employer may discharge an at-will employee “at any time and for any reason, or for no reason at
all.” Holman v. Williams, 436 F. Supp. 2d 68, 76 (D.D.C. 2006) (quoting Adams v. George W.
Cochran & Co., 597 A.2d 28, 30 (D.C. 1991) (citations omitted)). Under District of Columbia
law, however, “wrongful termination in violation of a clear public policy is an exception to the
traditional at-will employment doctrine.” Bowie v. Gonzales, 433 F. Supp. 2d 24, 30 (D.D.C.
2006) (citing District of Columbia v. Beretta, U.S.A. Corp., 872 A.2d 633, 645 (D.C. 2005)).
“Whether a discharge violates public policy is determined on a case-by-case basis, guided by the
concept that a wrongful termination cause of action must be ‘firmly anchored in the Constitution
or in a statute or regulation which reflects the particular public policy being relied upon.’” Id.
(quoting Warren v. Coastal Int’l Secs., Inc., 96 Fed. Appx. 722, 722-23 (D.C. Cir. 2004)). For
example, discharge of an employee who refused to violate a statute – that is, forcing the
employee to choose between breaking the law and keeping her job – is considered a wrongful
discharge in violation of public policy. See Adams v. George W. Cochran & Co., Inc., 597 A.2d
at 32, 34.
Defendants maintain that to successfully invoke this exception, plaintiff must
point to a “fundamental public policy expressed in a statute, regulation, or constitution that
supports her position that she was wrongly terminated,” and she has failed to do so. Defs.’
Second Mem. at 14; see Defs.’ First Mem. at 13. Nor does plaintiff demonstrate a connection
between a public policy and the conduct which brought about her termination. Defs.’ First Mem.
22 at 13. For plaintiff’s failure “to state a viable wrongful termination claim against [d]efendants,
. . . such claims must be dismissed.” Defs.’ Second Mem. at 14.
Defendants are correct that the public policy exception to the at-will doctrine must
be “solidly based on a statute or regulation that reflects the public policy to be applied or (if
appropriate) on a constitutional provision concretely applicable to the defendant’s conduct.”
Holman v. Williams, 436 F. Supp. 2d at 76 (quoting Carl v. Children’s Hosp., 702 A.2d at 163
(Terry, J., concurring)); see also Riggs v. Home Builders Inst., 203 F. Supp. 2d 1, 17 (D.D.C.
2002). Review of the complaint in this case reveals that the only policies allegedly violated were
CNMC’s internal personnel policies regarding employee discipline, grievances, equal
employment opportunity, harassment, and retaliation. Plaintiff identifies no public policy the
violation of which contravenes public policy, and therefore the complaint fails to state a wrongful
termination claim. See Davis v. Gables Residential/H.G. Smithy, 525 F. Supp. 2d 87, 102
(D.D.C. 2007) (dismissing wrongful discharge claim “in the absence of any identified public
policy” or, alternatively, absent a showing of a “‘close fit’ between the policy and [plaintiff’s]
conduct”); Bowie v. Gonzales, 433 F. Supp. 2d at 31 (concluding that, while “attempts to
strong-arm plaintiff into supporting [an employee’s] dismissal are not admirable actions, they do
not rise to the level necessary for a public policy violation supporting an exception to at-will
employment doctrine in a wrongful termination claim”).
F. Defamation
Plaintiff’s defamation claims arise principally from the comments Morrison-
Quintana allegedly made with respect to plaintiff’s performance and behavior issues occurring
23 prior to January 2007, see Compl. at 31-35, leading to plaintiff’s suspension and the issuance of
the Final Written Notice, see id. at 33. It appears, however, that plaintiff intends to bring
defamation claims against all defendants. See id. at 34.
Under District of Columbia law, “the right to maintain [an] action accrues . . . for
libel [and] slander” in one year. D.C. Code §12-301(4); see Maupin v. Haylock, 931 A.2d 1039,
1042 (D.C. 2007); Oparaugo v. Watts, 884 A.2d 63, 72 (D.C. 2005). Defendants argue that
plaintiff’s defamation claims are time-barred, as all of the events giving rise to her defamation
claim arose either before January 3, 2007, or not later than her post-termination exit interview on
March 13, 2007. See Defs.’ First Mem. at 11; Defs.’ Second Mem. at 12. Plaintiff counters that
her defamation claims are timely for the same reasons that her DCHRA claims are timely. See
Pl.’s Second Opp’n at 23. “Even though the EEOC does not investigate claims of defamation,
those claims would fall under the DCHRA,” and the statute of limitations is tolled while the
EEOC completes its investigation. Id.
Defamation is not an unlawful discriminatory practice under the DCHRA, and
plaintiff offers no alternative argument for the tolling of the one-year statute of limitations. Her
defamation claims, then, will be dismissed without prejudice as untimely. See DiLella v. Univ. of
the District of Columbia David A. Clark Sch. of Law, 570 F. Supp. 2d 1, 11 (D.D.C. 2008)
(dismissing defamation claim filed 13 months after it had accrued); Nevius v. Africa Inland
Mission Int’l, 511 F. Supp. 2d 114, 121 (D.D.C. 2007) (dismissing defamation claim filed nearly
seven months after statute of limitations had run).
24 G. Appointment of Counsel from the Civil Pro Bono Panel
The Court’s ruling on defendants’ dispositive motions resolves some, but not all,
of the legal claims plaintiff raises. On the assumption that this case will proceed to discovery,
the Court considers, sua sponte, whether counsel should be appointed to represent this plaintiff.
“The law is well established that there is no constitutional right to appointment of
counsel in a civil case,” Cookish v. Cunningham, 787 F.2d 1, 2 (1st Cir. 1986) (per curiam)
(citations omitted), and no indigent civil litigant is guaranteed counsel. Willis v. Fed. Bureau of
Investigation, 274 F.3d 531, 532 (D.C. Cir. 2001). The Court has the discretion, however, to
appoint counsel to represent an indigent pro se party under 28 U.S.C. § 1915(e)(1). Pursuant to
this authority, Local Civil Rule 83.11 provides:
When leave has been granted pursuant to 28 U.S.C. § 1915 for a pro se litigant to proceed in forma pauperis, the judge to whom the case is assigned may, on application by the pro se party or otherwise, appoint an attorney from the Panel to represent such party. The appointment should be made taking into account:
(I) the nature and complexity of the action; (ii) the potential merit of the pro se party’s claims; (iii) the demonstrated inability of the pro se party to retain counsel by other means; and (iv) the degree to which the interests of justice will be served by appointment of counsel, including the benefit the Court may derive from the assistance of the appointed counsel.
LCvR 83.11(b)(3); see Willis v. Fed. Bureau of Investigation, 274 F.3d at 532 (affirming
application of the factors set forth in the former LCvR 83.11(a)(4)(B) to decide a motion for the
appointment of counsel in a civil action brought under the Freedom of Information Act). The
Court has considered these factors and determines that appointment of counsel is warranted at
this time. All proceedings will be stayed pending entry of counsel’s appearance.
25 III. CONCLUSION
For the reasons discussed above, plaintiff’s Title VII and DCHRA claims against
defendants Singh, Morrison-Quintana, Hulbert and Koepenick in their individual capacities will
be dismissed. Because the complaint fails to state claims of intentional infliction of emotional
distress and wrongful termination in violation of public policy, these claims will be dismissed as
against all defendants. Plaintiff’s defamation claims as against all defendants will be dismissed
as untimely, and her negligence claims will be dismissed as duplicative of those brought against
CNMC under Title VII. Remaining, then, are plaintiff’s Title VII and the DCHRA claims
against CNMC, and her Section 1981 claims against all defendants. An appropriate Order
accompanies this Opinion.
/s/ PAUL L. FRIEDMAN DATE: March 30, 2011 United States District Judge