Vreven v. Aarp

• Court: District Court, District of Columbia
• Decided: March 26, 2009
• Docket: Civil Action No. 2008-1099
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________________ ) LINE VREVEN, ) ) Plaintiff, ) ) v. ) Civil Action No. 08-1099 (PLF) ) AMERICAN ASSOCIATION OF RETIRED ) PERSONS, ) ) Defendant. ) __________________________________________)

OPINION

This matter, which stems from defendant’s termination of plaintiff Line Vreven’s

employment, is before the Court on plaintiff’s motion to amend her complaint, and on

defendant’s two motions to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal

Rules of Civil Procedure. The Court heard oral argument on March 18, 2009. After carefully

considering the papers filed by the parties, the relevant case law, and the arguments of counsel,

the Court grants plaintiff’s motion to amend, and grants defendant’s motion to dismiss in part

and denies it in part.1

1 The Court considered the following papers: plaintiff’s First Amended Complaint (“Compl.”); plaintiff’s Amended Motion for Leave to File First Amended Complaint; defendant’s Opposition to Plaintiff’s Motion for Leave to File First Amended Complaint; plaintiff’s Reply in Support of Amended Motion for Leave to File First Amended Complaint; defendant’s Motion to Dismiss Count I of Complaint; plaintiff’s Opposition to Defendant’s Motion to Dismiss Count I of the Complaint; defendant’s Reply Brief in Support of Motion to Dismiss Count I of Complaint; defendant’s Motion to Dismiss Count III of First Amended Complaint; plaintiff’s Opposition to Defendant AARP’s Motion to Dismiss Count III of First Amended Complaint; and defendant’s Reply Brief in Support of Defendant AARP’s Motion to Dismiss Count III of First Amended Complaint. I. BACKGROUND

Plaintiff alleges that she worked for defendant, the American Association of

Retired Persons (“AARP”), in various capacities in the International Affairs department from

May 17, 2006 until her discharge on May 15, 2008. See Compl. ¶¶ 5, 7, 8, 13.2 During her

employment by AARP, plaintiff alleges that she expressed concerns to her supervisors about

AARP’s relationship with AARP Global Network, LLC (“AGN”), a limited liability company

founded and wholly owned and operated by AARP. See id. ¶¶ 9, 10. Plaintiff alleges that she

was concerned that AARP’s relationship with AGN jeopardized AARP’s tax exempt status

(pursuant to Section 501(c)(4) of the Internal Revenue Code). See id. ¶¶ 6, 10. Plaintiff also

alleges that during her employment she expressed concerns to her supervisors about AARP

employees’ mishandling and improper spending of AARP funds as well as their use of

inadequate audit procedures. See id. ¶ 11. She alleges that she was terminated because she had

objected to AARP’s “abuse and its structure and tax-exempt status resulting in AARP’s evasion

and avoidance of taxes pursuant to the Internal Revenue Code.” Id. ¶ 15.

Plaintiff further alleges that defendant’s chief executive officer, William Novelli,

told others at AARP that plaintiff’s employment was terminated because she engaged in

misconduct, bore responsibility for missing money or assets, did not manage her AARP

subordinates appropriately, and allowed them to steal from AARP, and that she personally stole

money from AARP. See Compl. ¶ 29. She also alleges “upon information and belief” that Mr.

Novelli repeated these comments to unnamed people outside of AARP. See id. Plaintiff alleges

2 All references to the “Complaint” in this Opinion are to the First Amended Complaint.

2 that Mr. Novelli’s statements about the reason for her discharge were false and defamatory. See

Compl. ¶ 30.

Plaintiff filed suit in this Court on June 25, 2008.3 Her original complaint

asserted two counts — wrongful discharge (Count I) and unlawful discrimination based on her

national origin (Belgian) (Count II). On December 22, 2008, plaintiff moved to amend her

complaint to add a claim for defamation (Count III).

II. STANDARD OF REVIEW

Rule 12(b)(6) of the Federal Rules of Civil Procedure allows dismissal of a

complaint if a plaintiff fails “to state a claim upon which relief can be granted.” FED . R. CIV . P.

12(b)(6). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court clarified

the standard of pleading that a plaintiff must meet in order to survive a motion to dismiss under

Rule 12(b)(6). The Court noted that “Federal Rule of Civil Procedure 8(a)(2) requires only ‘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[.]’”

Id. at 544 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); see also Erickson v. Pardus, 127

S. Ct. 2197 (2007); Aktieselskabet AF 21 v. Fame Jeans Inc., 525 F.3d 8, 15 (D.C. Cir. 2008).

Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6) motion to

dismiss, to provide the “grounds” of “entitle[ment] to relief,” a plaintiff must furnish “more than

labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell

3 Plaintiff, a resident of Maryland, alleges jurisdiction based on diversity of citizenship pursuant to 28 U.S.C. 1332(a). See Compl. ¶¶ 1, 3. Defendant, a District of Columbia nonprofit corporation with its principal place of business in the District of Columbia, does not challenge diversity jurisdiction. See Compl. ¶ 2.

3 Atlantic Corp. v. Twombly, 550 U.S. at 555; see also Papasan v. Allain, 478 U.S. 265, 286

(1986). The Court stated that there was no “probability requirement at the pleading stage,” Bell

Atlantic Corp. v. Twombly, 550 U.S. at 556, but “something beyond . . . mere possibility . . .

must be alleged[.]” Id. at 557 The facts alleged in the complaint “must be enough to raise a right

to relief above the speculative level,” id. at 555, because Rule 8(a)(2) requires a “showing,”

rather than a “blanket assertion,” of entitlement to relief, id. at 555 n.3. The complaint must be

sufficient “to state a claim for relief that is plausible on its face.” Id. at 570. The Court referred

to this newly clarified standard as “the plausibility standard.” Id. at 560 (abandoning the “no set

of facts” language from Conley v. Gibson). The D.C. Circuit has noted that Twombly “leaves

the long-standing fundamentals of notice pleading intact.” Aktieselskabet AF 21 v. Fame Jeans

Inc., 525 F.3d at 15.

On a motion to dismiss under Rule 12(b)(6), the Court “must accept as true all of

the factual allegations contained in the complaint.” Erickson v. Pardus, 127 S. Ct. at 2200; see

also Bell Atlantic Corp. v. Twombly, 550 U.S. at 555. The complaint “is construed liberally in

the [plaintiff’s] favor, and [the Court should] grant [the plaintiff] the benefit of all inferences that

can be derived from the facts alleged.” Kowal v. MCI Communications Corp., 16 F.3d at 1276.

Nevertheless, the Court need not accept inferences drawn by the plaintiff if those inferences are

unsupported by facts alleged in the complaint; nor must the Court accept plaintiff’s legal

conclusions. See Kowal v. MCI Communications Corp., 16 F.3d at 1276; Browning v. Clinton,

292 F.3d 235, 242 (D.C. Cir. 2002).

4 III. DISCUSSION

A. Motion to Amend Complaint

Plaintiff moves to amend her complaint to add a new count (Count III) for

defamation related to her discharge by AARP. Rule 15(a) of the Federal Rules of Civil

Procedure allows for liberal amendment of pleadings, “when justice so requires.” FED . R. CIV . P.

15(a); see, e.g., Howard v. Gutierrez, 237 F.R.D. 310, 312 (D.D.C. 2006) (quoting Davis v.

Liberty Mutual Insurace Co., 871 F.2d 1134, 1136-37 (D.C. Cir. 1989) (“It is common ground

that Rule 15 embodies a generally favorable policy toward amendments.”) (citations omitted)).

The presumption runs in the plaintiff’s favor that she may amend her complaint “[i]n the absence

of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the

part of the [plaintiff], repeated failure to cure deficiencies by amendments previously allowed,

undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the

amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962). The decision whether to grant or

deny leave to amend is within the district court’s discretion. See Firestone v. Firestone, 76 F.3d

1205, 1209 (D.C. Cir. 1996).

Defendant opposes plaintiff’s motion to amend on the ground of futility, making

virtually the same arguments as those contained in its subsequent motion to dismiss Count III.

Since the defendant has moved to dismiss the complaint as amended, and the Court heard oral

argument on that motion, the Court will grant plaintiff’s motion to amend and consider the

motion to dismiss Count III on its merits.4

4 Because the allegations in the amended complaint as to Counts I and II appear identical to those in the original complaint, the Court will treat defendant’s motion to dismiss Count I of the original complaint as applying to the amended complaint.

5 B. Plaintiff Has Stated a Claim for Wrongful Discharge

Defendant moves to dismiss Count I of plaintiff’s complaint, alleging wrongful

discharge, for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil

Procedure. Under District of Columbia law, “[a]n employee who serves at the will of his or her

employer may be discharged ‘at any time and for any reason, or for no reason at all.’” Liberatore

v. Melville Corp., 168 F.3d 1326, 1329 (D.C. Cir. 1999) (quoting Adams v. George W. Cochran

& Co., 597 A.2d 28, 30 (D.C. 1991)). District of Columbia law thus presumptively bars

wrongful termination claims brought by at-will employees. See Holman v. Williams, 436 F.

Supp. 2d 68, 76 (D.D.C. 2006).

District of Columbia courts recognize limited exceptions to this presumptive bar.

In Adams v. George W. Cochran & Co., the District of Columbia Court of Appeals recognized a

“very narrow” policy exception to this rule — a discharged employee may bring a wrongful

termination claim when “the sole reason for the discharge is the employee’s refusal to violate the

law.” Adams v. George W. Cochron & Co., 597 A.2d at 34. Despite plaintiff’s argument to the

contrary, she has not alleged any facts to support the conclusion that defendant discharged her

because she refused to assist in the commission of unlawful acts. The conclusory assertion to

this effect, see Compl. ¶ 16, is not sufficient under Bell Atlantic Corp. v. Twombly, 550 U.S. at

555 (to survive dismissal, plaintiff must furnish “more than labels and conclusions”).

The District of Columbia Court of Appeals expanded the Adams exception

slightly in Carl v. Children’s Hospital, 702 A.2d 159 (D.C. 1997), in which it stated that

circumstances other than an employee’s outright refusal to violate a law may constitute grounds

for a public policy exception if the employee acted in furtherance of a public policy “solidly

6 based on a statute or regulation that reflects the particular public policy to be applied or (if

appropriate) on a constitutional provision concretely applicable to the defendant’s conduct.” Id.

at 163 (Terry, J., concurring).5 The court in Carl considered the claims of plaintiff, a nurse, that

she had been discharged because she advocated for patients’ rights and against her employer’s

interests both before the Council of the District of Columbia and in court as an expert witness for

plaintiffs in medical malpractice cases. See Carl v. Children’s Hospital, 702 A.2d at 160.

Relying on a provision of the District of Columbia Code that prohibited threatening behavior

against witnesses before the Council of the District of Columbia, the court determined that the

Code constituted “a declaration of policy by the Council seeking to ensure the availability of

information essential to its legislative function by imposing criminal penalties on anyone who

seeks to impede Council access to such information.” Id. at 165. The court further explained

that plaintiff had alleged an adequately “close fit” between this public policy and her termination:

“the most severe and most effective [method of influencing the employee’s testimony before the

Council] — the one that would inflict the greatest injury on the person or property of the

employee — is the termination of employment.” Id.

The Court finds that plaintiff has stated a claim under the exception articulated in

Carl v. Children’s Hospital based on her allegations that she was terminated because “she

objected to AARP’s abuse of its structure and tax-exempt status.” Compl. ¶ 15. As Judge

5 Relying on Carl v. Children’s Hospital, the courts have treated Judge Terry’s concurring opinion as the relevant standard. See, e.g., Riggs v. Home Builders Inst., 203 F. Supp. 2d 1, 8 n.5 (D.D.C. 2002) (“While a majority of judges on the en banc court . . . did not explicitly articulate the precise confines of the public policy exception to the at-will doctrine, Judge Terry’s concurrence appears to at least implicitly represent the broadest demarcation of its boundaries acceptable to a majority of the court.”).

7 Hogan explained in Riggs, a case involving Section 501(c)(3) of the Internal Revenue Code, “the

policy of protecting against abuse of the public treasury by utilizing its funds for partisan activity

is a sufficiently clear mandate of public policy for the purposes of Carl.” Riggs v. Home

Builders Institute, 203 F. Supp. 1, 21 (D.D.C. 2002). While plaintiff has not specified the

manner in which AARP allegedly violated its tax exempt status under Section 501(c)(4) and

evaded or avoided taxes, other than through its relationship with AGN, Compl. ¶¶ 9-10, the

Court finds her allegations sufficient under Rule 8(a) and Twombly to invoke the Carl exception.

See Holman v. Williams, 436 F. Supp. 2d at 78; Riggs v. Homebuilders Institute, 203 F. Supp.

2d at 21-22. They make plausible the conclusion that defendant discharged plaintiff as a result of

her objections to alleged violations of defendant’s tax exempt status. Defandant’s motion to

dismiss Count I will be denied.

C. Plaintiff Has Not Stated a Claim for Defamation

In order to make out a prima facie case of defamation under District of Columbia

law, a plaintiff must allege facts showing: (1) that the defendant made a false and defamatory

statement concerning the plaintiff; (2) that the defendant published the statement without

privilege to a third party; (3) that the defendant’s fault in publishing the statement amounted to at

least negligence; and (4) either that the statement was actionable as a matter of law irrespective

of special harm or that its publication caused the plaintiff special harm. See Marsh v. Hollander,

339 F. Supp. 2d 1, 5 (D.D.C. 2004) (citing Crowley v. North Am. Telcoms. Ass’n, 691 A.2d

1169, 1173 (D.C. 1997)); see also Restatement (Second) of Torts § 558 (1977).

8 Defendant argues that the defamation claim should be dismissed because the

complaint is insufficiently specific as to the second element — defendant’s publication of the

statement to a third party. Defendant asserts that the description in plaintiff’s complaint of the

alleged third parties is too vague to state a claim adequately. Plaintiff has alleged that Mr.

Novelli made defamatory statements about her to “others at AARP and, upon information and

belief, [to people] outside of AARP . . .” Compl. ¶ 29. While there is no heightened pleading

standard for defamation claims in the District of Columbia, see Croixland Props. Ltd. Partnership

v. Corcoran, 174 F.3d 213, 215 n. 2 (D.C. Cir. 1999), such claims must be pleaded with

particularity and specify the person or persons to whom the statements were made or published.

Coates v. Law School Admission Council, Civil Action No. 05-0641, 2005 U.S. Dist. LEXIS

35217 at *6 (D.D.C. October 25, 2005) (citing Wiggins v. Dist. Cablevision, Inc., 853 F.Supp.

484, 494 (D.D.C. 1994)). In addition, all plaintiffs, of course, are bound by the pleading

requirements of Rule 8(a) of the Federal Rules of Civil Procedure, and the Supreme Court’s

recent explication of that Rule in Twombly. The Court therefore must determine whether Count

III of plaintiff’s complaint adequately identifies third parties, or “listeners,” with sufficient

specificity to enable the defendant to answer the complaint and thereby withstand defendant’s

motion to dismiss. See Oparaugo v. Watts, 884 A.2d 63, 77 (D.C. 2005) (“we consider whether

the factual allegations are sufficient to respond to appellant’s claim of defamation”).

In Oparaugo v. Watts, the District of Columbia Court of Appeals concluded that

the allegation that a defamatory letter was published to “various persons, both private and public,

in Nigeria” was insufficient to state the third parties to whom the letter was published and thus

too broad to provide sufficient notice to enable the opposing party to prepare an answer.

9 Oparaugo v. Watts, 884 A.2d at 78. The court contrasted the breadth of that alleged publication

with a separate allegation that the letter was published to “the Nigerian authorities in [plaintiff’s]

court case,” and found that the latter was sufficiently specific to state a claim for defamation,

while the former was not. Id. Here, plaintiff’s allegation “on information and belief” that Mr.

Novelli defamed her to unnamed people outside of AARP is as vague and amorphous as the

allegation rejected by the court in Oparaugo. The Court also concludes that plaintiff’s allegation

that Mr. Novelli defamed her to unnamed AARP employees also fails to clear the Oparaugo

threshold. The court in Oparaugo relied on the fact that plaintiff specified the particular Nigerian

court employees involved in the plaintiff’s case, namely, those “Nigerian authorities who were

considering appellant’s complaint against Mrs. Oparaugo’s family in Nigeria.” See Oparaugo v.

Watts, 884 A.2d at 78. “These allegations,” the court held, were “sufficient to apprise appellees

of the persons to whom the letter was published, at least by category.” Id.

In this case, plaintiff alleges that AARP’s CEO, Mr. Novelli, who oversees the

entire organization, “has told [unnamed] others at AARP” various allegedly defamatory things

about plaintiff. See Compl. ¶ 29. Plaintiff fails to narrow this allegation any further by

identifying anyone to whom Mr. Novelli spoke or wrote by name, by department, or by any other

identifying feature. At oral argument, counsel for defendant represented that AARP employs

about 2,200 people, most of whom work in the same building as did plaintiff. Plaintiff’s

complaint, taken at face value, makes possible the conclusion that Mr. Novelli may have

defamed her to any one of these employees. Absent any factual allegations that narrow this field,

defendant would have to conduct thousands of interviews in order to answer the complaint. The

Court finds that plaintiff’s complaint thus does not give defendant “fair notice” of the nature of

10 the claims and the “grounds” on which the claim rests, both of which are necessary in order for

defendant to respond properly. See Bell Atlantic v. Twombly, 550 U.S. at 555 n.3; see also

Oparaugo v. Watts, 884 A.2d at 77-78.

Plaintiff is not helped by Crowley v. North Am. Telcoms. Ass’n, 691 A.2d 1169

(D.C. 1997). The plaintiff in that case alleged that a former supervisor defamed him to unnamed

“employees and former co-workers[.]” Id. at 1171. While the court in Crowley did not quote

from plaintiff’s complaint, it found the complaint sufficient to withstand a motion to dismiss

because it allowed for “identification by employment” of the third party audience for the

defamatory comments. Id. at 1172. It provided no explanation for that finding, and the Court is

unwilling to conclude that this characterization was shorthand for an allegation as broad and

unrefined as plaintiff’s allegation that she was defamed to unnamed AARP employees anywhere

in the building in which she worked. Interpreting Crowley this broadly would compel the Court

to reach the conclusion that an allegation that defamatory statements made, for example, to

“employees at General Motors,” would be sufficient to state a claim simply because the plaintiff

had identified a category of employees. Such a conclusion flies in the face of the requirement

that defamation cases be pled with particularity, as well as the pleading requirements of Rule 8(a)

of the Federal Rules of Civil Procedure. The Court therefore grants defendant’s motion to

dismiss with respect to Count III of plaintiff’s complaint.6

6 Plaintiff’s counsel suggested at oral argument that the Court could “infer” from paragraph 31 of the complaint that Mr. Novelli at least told members of AARP’s Board those things which plaintiff says are defamatory. But that is not what paragraph 31 asserts. “Without some factual allegation in the complaint” that Mr. Novelli made these statements to the Board of Directors, “it is hard to see how [plaintiff] could satisfy the requirement of providing . . . ‘fair notice’” to defendant. Bell Atlantic Corp. v. Twombly, 550 U.S. at 555 n. 3.

11 IV. CONCLUSION

For these reasons, the Court will grant plaintiff’s motion for leave to file her first

amended complaint and will deny in part and grant in part defendant’s motions to dismiss.

Count III of the Amended Complaint is dismissed. Counts I and II remain pending. A separate

Order consistent with this Opinion will issue this same day.

_/s/_______________________ PAUL L. FRIEDMAN United States District Judge

DATE: March 25, 2009