Kassem v. Washington Hospital Center

• Court: District Court, District of Columbia
• Decided: January 9, 2009
• Docket: Civil Action No. 2005-2352
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

FADY KASSEM, : : Plaintiff, : : v. : Civil Action No. 05-2352 (JR) : WASHINGTON HOSPITAL CENTER, : : Defendant. :

MEMORANDUM

This Court’s previous dismissal of plaintiff’s

complaint for wrongful discharge and intentional infliction of

emotional distress was affirmed in part and reversed in part by

the Court of Appeals, 513 F.3d 251 (D.C. Cir. 2008). The

reversal related to plaintiff’s claim for intentional infliction

of emotional distress which, the Court held, could not be

dismissed at the pleading stage, because it alleges that the

defendant “intentionally filed a false charge against [plaintiff]

with the NRC –- a charge that could have prevented him from

working as a nuclear technologist and subject him to criminal

penalties” and thus “had . . . consequence other than an adverse

employment action. . . .” Id. at 256. The parties took

discovery after the remand, and defendant has now moved for

summary judgment. The motion correctly asserts that the case now

“hinges on a single issue –- whether the Washington Hospital

Center intentionally filed a false report with the Nuclear Regulatory Commission stating that plaintiff was involved in an

NRC violation.” The motion has been fully briefed. The

plaintiff has neither adduced any evidence that gives rise to a

genuine issue of material fact nor pointed to anything in the

record that does so. The defendant is entitled to judgment.

The allegations of Kassem’s complaint that captured the

attention of the Court of Appeals, and that had to be taken as

true for purposes of a motion to dismiss, turned out at the

summary judgment stage to be completely unsupported and even

(apparently) abandoned. Thus, the allegation that “the Hospital

fabricated evidence and pressured Kassem to corroborate it,” 513

F.3d at 253, citing compl. ¶¶ 23, 24, is not mentioned in either

side’s summary judgment papers. The statement attributed by

plaintiff in his complaint to a member of the Hospital’s

investigative team, that “if he said ‘what they wanted to hear to

make the investigation complete, then he would be able to save

his visa and his livelihood and wouldn’t be kicked out of the

country,’”, id., citing compl. ¶ 24, is not repeated in the

summary judgment papers. Nor is plaintiff’s allegation, compl.

¶ 48, that WHC “made false statements about [Kassem] to the NRC

with the intent of inducing the NRC to initiate disciplinary

action against” him. 513 F.3d at 253.

Kassem’s opposition to the motion for summary judgment

focuses, not on WHC’s decision to approach the NRC about an

- 2 - apparent serious violation of NRC regulation, but rather on the

merits of the question whether Kassem was involved or not in the

unauthorized use of nuclear material. Thus Kassem asserts that

the statement made by Lawrence Dioh (who allegedly was injected

with nuclear material) was “false under oath.” He denies that he

gave an injection to Dioh, emphasizes that the investigation done

by the NRC failed to implicate him, and insists that the

investigation was “irreparably flawed,” decl. of Fady Fassem at

¶ 4. But he offers no evidence, nor does he point to anything in

the record, to dispute WHC’s well supported factual statements:

that no renal scan was ordered by a physician for the date in

question; that no authorized renal scan was performed on that

date; that, on that date, plaintiff had ordered radioactive

isotopes that are only used for renal scans; or that the

Hospital, concluding that an unauthorized renal scan had been

performed, decided to report the event. Kassem’s claim that WHC

“intentionally filed a false charge against him with the NRC,”

compl. ¶¶ 48, 50, 513 F.3d at 256, if proven, could have amounted

to intentional infliction of emotional distress, as the Court of

Appeals held. After conducting discovery, however, plaintiff has

shown himself unable to support that charge with anything except

the ipse dixit of his own declaration.

- 3 - An order granting WHC’s motion is issued with this

memorandum.

JAMES ROBERTSON United States District Judge

- 4 -