WHITE v. WASHINGTON INTERN STUDENT HOUSING, 1:18-cv-02021

Background

Joshua White worked for Washington Intern Student Housing (WISH) and managed the Woodley Park dormitory where Washington Media Institute (WMI) participants lived and sometimes held classes.
White alleges WMI Director Amos Gelb sexually harassed him at Woodley Park (late-night knocks, suggestive remarks, aggressive touching, notes) and secretly recorded and distributed a sexual video of White in October 2016.
White claims WISH fired him after Gelb threatened to terminate WMI’s contract unless White was terminated; White sued WISH and WMI, asserting among other claims a negligent supervision and retention claim (Count V) against WMI.
The Court previously dismissed other claims; only Count V against WMI remained. WMI moved to dismiss Count V under Rule 12(b)(6).
The Court evaluated whether WMI knew or should have known of Gelb’s dangerous/incompetent behavior prior to the alleged misconduct and whether Gelb’s knowledge could be imputed to WMI.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether White alleged facts to show WMI knew or should have known Gelb was dangerous or incompetent before the misconduct	White alleges WMI “knew or should have known” and that Gelb’s position and WMI’s ratification make WMI responsible	WMI argues the complaint contains only conclusory allegations and lacks facts showing actual or constructive knowledge	Dismissed: Plaintiff failed to plead sufficient factual allegations to plausibly show WMI knew or should have known prior to the conduct
Whether Gelb’s knowledge can be imputed to WMI based on his role as Director	White asserts Gelb’s knowledge should be imputed to WMI because their interests were coextensive and WMI ratified his conduct	WMI contends agency-law imputation is inapplicable because Gelb’s interests were adverse to WMI at the time of the alleged acts	Held: Imputation rejected under adverse-interest exception; Gelb’s knowledge not attributable to WMI
Whether the adverse-interest exception applies (i.e., if Gelb acted secretly or for his own interest)	White argues post-act coextensive interests (denying allegations; preserving contract) show no adverse interest	WMI argues Gelb’s alleged harassment was adverse to WMI (risking relationship with WISH and his job) and thus exception applies	Held: Court finds Gelb and WMI had adverse interests at time of acts; exception applies
Whether dismissal should be with or without prejudice	White requests dismissal without prejudice to allow discovery to possibly reveal facts	WMI requests dismissal with prejudice to prevent a fishing expedition	Held: Dismissed without prejudice (prejudice dismissal is exceptional; possible plaintiff could plead adequate facts later)

Key Cases Cited

Giles v. Shell Oil Corp., 487 A.2d 610 (D.C. 1985) (elements of negligent supervision and retention under D.C. law)
BCCI Holdings (Luxembourg), S.A. v. Clifford, 964 F. Supp. 468 (D.D.C. 1997) (corporate imputation of officers’ knowledge and exceptions)
FDIC v. Shrader & York, 991 F.2d 216 (5th Cir. 1993) (adverse-interest exception to imputation of agent knowledge)
Rawlings v. D.C., 820 F. Supp. 2d 92 (D.D.C. 2011) (requirement that dangerous behavior be known before the incident for negligent retention claims)
Rudder v. Williams, 666 F.3d 790 (D.C. Cir. 2012) (dismissal with prejudice is the exception; standards governing dismissal with prejudice)
Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standard: plausibility requirement)
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (pleading standard requiring factual enhancement beyond conclusory statements)