Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________
)
SALIM BILAL-EDWARDS, )
)
Plaintiffs, )
) v. ) Civil Action No. 11-2220 (RBW) )
UNITED PLANNING )
ORGANIZATION, et al., )
)
Defendants. )
____________________________________)
MEMORANDUM OPINION
This case, in which the plaintiff, Salim Bilal-Edwards, filed a six-count complaint against the defendants alleging, among other things, wrongful termination, negligence, extreme and outrageous conduct, and hostile work environment, [1] is currently before the Court on the Defendants’ Motion To Dismiss Counts 1, 3, 5 and 6 for Failure To State Claims upon which Relief Can Be Granted (“Defs.’ Mot.”), the Plaintiff’s Motion to Proceed with Counts 1, 3, 5, and 6 (“Pl.’s Mot.”), [2] and the Plaintiff’s Memorandum in Response to Defendant[s’] Motion to Dismiss Counts 1, 3, 5, and 6 [and] Plaintiff Ask for Continuance Until Appropriate Counsel Can *2 Assist with the Case (“Pl.’s Cont. Mot.”). [3] For the reasons explained below, the defendants’ motion will be granted, and the plaintiff’s motion will be denied as moot. [4]
I. BACKGROUND
A. The Plaintiff’s Factual Allegations
Viewed in the light most favorable to the plaintiff, the facts currently before the Court are as follows.
One of the defendants, the United Planning Organization (“UPO”), is a “human service agency” [5] doing business in the District of Columbia. Compl. ¶ 5. The other two defendants, DeAngelo Rorie and Andrea Thomas, are the Director of Youth Services and Chief of Staff of the UPO, respectively. Id. ¶¶ 6-7.
The plaintiff, Salim Bilal-Edwards, is a fifty-year old man who was hired in March 2009 as an Assistant Director of Youth Services at the UPO’s facility located at 301 Rhode Island Avenue, N.W. Id. ¶¶ 3, 8-9. As an Assistant Director, the plaintiff was responsible for monitoring at least some of the UPO’s financial activities, including ensuring that federal grant funds received by the UPO were expended properly. Id. ¶¶ 20, 22-23. The plaintiff also “developed partnerships” with other organizations within the community on behalf of the UPO. Id. ¶ 36.
*3 The plaintiff was instructed, but refused, to breach a contract with one of the UPO’s community partners and to “submit a potentially false report” to another. Id. ¶¶ 38-39, 45-46. Ms. Thomas and Mr. Rorie were “angry” and “enraged” with the plaintiff because of his refusals and complaints. Id. ¶¶ 44-46.
In the course of carrying out his various duties, the plaintiff discovered that the UPO was misusing federal grant funds, id. ¶¶ 27-28, and subsequently “informed staff that [the d]efendants could not spend federal stimulus grant dollars” inappropriately, id. ¶¶ 46-48. In addition to complaining about funding discrepancies and contracts, the plaintiff complained to Ms. Thomas about her “use of negative and derogatory names.” Id. ¶ 51. Ms. Thomas “often referred to [the p]laintiff and another male employee as ‘box lifters,’” and “referred to another male employee as her ‘pole dancer.’” Id. ¶¶ 49-50. The plaintiff further complained to the UPO’s Assistant Director of Human Resources about a female employee’s allegations that Ms. Thomas was sexually harassing her. Id. ¶¶ 57-59. Because of the plaintiff’s complaints, Ms. Thomas increased the amount of work required of the plaintiff. Id. ¶ 61.
In December 2009, the plaintiff was transferred to UPO’s 3839 Alabama Avenue, S.E. location. Id. ¶ 8. Both the UPO and Mr. Rorie were aware that the Alabama Avenue facility “had a history of sewage problems” and that “sewage was leaking” underneath the facility. Id. ¶¶ 10-11, 15. Additionally, a methane odor permeated the facility, resulting in the plaintiff and two female employees, both in their twenties, complaining to the UPO and to Mr. Rorie about the odor. Id. ¶¶ 13-14, 16. The “[p]laintiff inhaled [the] methane fumes for months,” causing him to fall ill and suffer from migraine headaches. Id. ¶ 16.
Neither the UPO nor Mr. Rorie responded to the plaintiff’s complaints about the odor or his resulting illness. Id. ¶ 18. Because of the plaintiff’s “complaints about the odor of methane,” id. ¶ 19, and “complaints about [Ms. Thomas’s] conduct toward older males on staff,” as well as the plaintiff’s “refus[al] to comply with [the d]efendants’ directives to engage in illegal reporting about the use of government funds,” id. ¶¶ 69-72, the defendants terminated the plaintiff’s employment.
B. Procedural History
After removing this action to this Court, the defendants filed their motion to dismiss on January 4, 2012. Because the plaintiff did not file a response within the appropriate time frame, the defendants filed a supplemental brief arguing that, in addition to the substantive arguments raised in their initial memorandum of law in support of their motion to dismiss, the plaintiff’s claims should be dismissed as conceded. Defs.’ Supp. Mem. at 2. The plaintiff did not immediately reply, but instead notified the Court and the defendants that his attorney “ha[d] been unresponsive to phone calls and emails,” and further noted that he would be proceeding pro se because he “lack[ed] the means to hire new [c]ounsel.” Pl.’s Jury Mot. at 1. The plaintiff eventually filed his opposition to the defendants’ motion to dismiss on May 14, 2012. On May 31, 2012, the plaintiff filed his motion for a continuance, which also contained additional arguments in response to the defendants’ motion to dismiss. Pl.’s Cont. Mot. at 3-5. The defendants opposed the plaintiff’s motion in a June 13, 2012 memorandum. Defs.’ Cont. Opp’n at 1.
II. STANDARD OF REVIEW
The defendants seek dismissal under Federal Rule of Civil Procedure 12(b)(6). A motion
to dismiss under Rule 12(b)(6) tests whether a complaint has properly stated a claim upon which
relief may be granted. Woodruff v. DiMario,
In evaluating a Rule 12(b)(6) motion under this framework, “[t]he complaint must be
liberally construed in favor of the plaintiff, who must be granted the benefit of all inferences that
can be derived from the facts alleged,” Schuler v. United States,
III. LEGAL ANALYSIS
A. The Plaintiff’s Motion for a Continuance
The plaintiff objects to the defendants’ argument that “Counts 1, 3, 5, and 6 [should] be
denied due to untimely filing by the Plaintiff,” and thus requests that the Court grant him a
continuance prior to ruling on the motion to dismiss in order to allow him to obtain new counsel.
Pl.’s Cont. Mot. at 1. Because the Court finds, upon considering the merits of the plaintiff’s
complaint and the plaintiff’s briefs, see, e.g., United States v. Palmer,
B. The Plaintiff’s Wrongful Termination Claim
The plaintiff alleges that the defendants terminated his employment in retaliation for his complaints about the misappropriation of government funds, refusal to breach a contract, and complaints about the UPO’s Alabama Avenue facility, Compl. ¶¶ 78-79, 83, 85, and “for insubordination,” Pl.’s Cont. Mot. at 3. The defendants argue that the plaintiff’s allegations do not fit under any public policy exception to the District of Columbia’s general principle that an at-will employee may be terminated at any time. [8] Defs.’ Mem. at 9-11.
“It has long been settled in the District of Columbia that an employer may discharge an
at-will employee at any time and for any reason, or for no reason at all.”
[9]
Adams v. George W.
Cochran & Co.,
The plaintiff fails entirely to state the public policy upon which his wrongful termination
claim is based. This omission requires the Court to dismiss the plaintiff’s wrongful termination
claim. See Davis,
C. The Plaintiff’s Negligence and “Extreme and Outrageous Conduct” Claims The plaintiff alleges that the UPO “was aware of sewage issues at their Alabama Avenue location but failed to ensure proper maintenance of the septic system.” Compl. ¶ 92. According to the plaintiff, the defendants knew that the plaintiff was suffering from migraine headaches as a result of the odor at the UPO’s Alabama Avenue facility, but did nothing to address the situation until a female employee complained that the odor was making her sick, as well. Id. ¶ 99. The plaintiff states that the defendants were negligent in their failure to maintain the septic system, id. ¶¶ 91-92, and also contends that their delay in addressing his complaints constituted “extreme and outrageous conduct,” id. ¶¶ 97-100.
The defendants counter arguing (1) that the plaintiff’s allegations are insufficient to support a claim for negligence because he fails to identify any duty owed to him by the defendants, and that, in any event, no duty exists, Defs.’ Mem. at 16-17, and (2) “the conduct described [in the complaint] does not rise to the level of extreme and outrageous conduct required to survive a motion to dismiss,” id. at 18. The defendants further argue that the plaintiff’s common law tort claims are barred by the District of Columbia’s Worker’s Compensation Act (the “Worker’s Compensation Act” or “WCA” or “Act”), D.C. Code §§ 32- 1503 to -1504 (2001). Id. at 16-17.
The District of Columbia Court of Appeals has stated that the Worker’s Compensation
Act, which “was enacted to provide a reasonably quick and efficient manner to compensate
*10
employees” for injuries that occur in the workplace, constitutes “a system in which common law
tort remedies [are] discarded for assured compensation regardless of negligence or fault.”
McCamey v. D.C. Dep’t of Emp’t Servs.,
Because (1) the plaintiff’s alleged injuries “ar[ose] out of and in the course of his
employment,” D.C. Code § 32-1504(b), (2) the plaintiff does not allege that the defendants
“specifically intended” to inflict injury specifically on the plaintiff, Everson, 414 F. Supp. 2d at
86, and (3) the plaintiff’s alleged injuries were “incidental to” his employment at the UPO’s
Alabama Avenue facility, Wright,
D. The Plaintiff’s Hostile Work Environment Claim
The plaintiff includes in his complaint a cause of action against Ms. Thomas for “hostile work environment.” Compl. ¶¶ 101-102. The Court construes this claim as either arising under the District of Columbia Human Rights Act (“DCHRA”), D.C. Code §§ 2–1402.11(a)(1), 2– *12 1402.61(a)–(b) (2001), or under Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. §§ 2000e-2 to -3 (2006).
The plaintiff alleges that Ms. Thomas subjected him to a hostile work environment by “instruct[ing him] to acquire partnerships with outside entities” and subsequently “knowingly and willfully attempt[ing] to breach contractual obligations” arising out of those partnerships. Compl. ¶ 102. Elsewhere in his complaint, the plaintiff also states that Ms. Thomas referred to him and another male co-worker in “negative and derogatory terms.” Id. ¶ 49. The defendants argue that the plaintiff “fails to allege incidents severe enough to state a claim of hostile work environment,” Defs.’ Mem. at 22, and fails to link his age or his gender to the harassment complained of or to any protected activity under Title VII, Defs.’ Mem. at 22-23.
“The law is clear that to establish a claim of discrimination based on a hostile work
environment under the DCHRA, a plaintiff must show: ‘(1) that he is a member of a protected
class, (2) that he has been subjected to unwelcome harassment, (3) that the harassment was based
on membership in a protected class, and (4) that the harassment is severe and pervasive enough
to affect a term, condition or privilege of employment.’” Campbell-Crane & Assocs. v.
Stamenkovic,
The first two elements of a hostile work environment under the DCHRA outlined above are easily met. The plaintiff “is a male over 40 years of age,” Compl. ¶ 75, making him a member of two protected classes. D.C. Code § 2–1402.11(a)(1) (“It shall be an unlawful discriminatory practice” for an employer “[t]o . . . discharge[] any individual[] or otherwise to discriminate against any individual” either “wholly or partially for a discriminatory reason based upon the actual or perceived . . . sex [or] age” of the individual). Additionally, the plaintiff contends that he was subjected to unwanted harassment by Ms. Thomas, [13] who the plaintiff *14 states “frequently referred to [him] and another male employee in negative and derogatory terms. For example, [Ms.Thomas] often[] referred to [the p]laintiff and another male employee as ‘box lifters’” and also “referred to another male employee as her ‘pole dancer.’” Compl. ¶¶ 49-50.
The third element, whether the harassment was based on a plaintiff’s membership in a protected class, is less clear. Other than the fact that the name-calling was directed at the plaintiff and other “older males on staff,” id. ¶ 69, the plaintiff fails to connect Ms. Thomas’s conduct to either his age or his gender.
The fourth element, whether “the harassment is severe and pervasive enough to affect a
term, condition, or privilege of employment,’” Campbell-Crane & Assocs.,
that person can be held individually liable under the DCHRA, Purcell v. Thomas,
the plaintiff does not reference the name-calling, his age or his gender. Compl. ¶¶ 101-102.
(quoting Lively,
Because the plaintiff does not connect the harassment to either his age or his gender, and because he has not alleged that the harassment altered a term, condition, or privilege of his employment, the plaintiff’s hostile work environment claim must be dismissed.
IV. CONCLUSION
For the reasons set forth above, the Court will grant the defendants’ motion to dismiss counts 1, 3, 5, and 6 of the plaintiff’s complaint for failure to state a claim upon which relief may be granted, and will deny the plaintiff’s motion for a continuance as moot.
SO ORDERED this 10th day of October, 2012.
REGGIE B. WALTON United States District Judge
Notes
[1] This Court’s jurisdiction arises out of the plaintiff’s allegations of discrimination under the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634 (2006), and retaliation under the Whistleblower Protection Act, 5 U.S.C. § 2302(b) (2006). Because the defendants did not move to dismiss those two claims, they are not the subject of this memorandum opinion.
[2] The Court construes the plaintiff’s motion as his opposition to the defendants’ motion to dismiss.
[3] The Court construes this as a motion for a continuance.
[4] In deciding the motions, the Court considered the following filings made by the parties: the plaintiff’s Complaint (“Compl.”), the Memorandum in Support of Defendants’ Motion To Dismiss Counts 1,3, 5 and 6 for Failure To State Claims upon which Relief Can Be Granted (“Defs.’ Mem.”), the Defendants’ Memorandum in Opposition To Plaintiff’s Motion To Proceed with Counts 1, 3, 5 and 6 (“Defs.’ Reply”), the Defendants’ Supplemental Memorandum in Support of Motion To Dismiss Counts 1, 3, 5 and 6 for Failure To State Claims upon which Relief Can Be Granted (“Defs.’ Supp. Mem.”), the Plaintiff’s Motion To Forgo Jury Trial (“Pl.’s Jury Mot.”), the Defendants’ Consent to Plaintiff’s Motion To Forgo Jury Trial (“Defs.’ Consent”), and the Defendants’ Memorandum in Opposition to Plaintiff’s Motion for a Continuance (“Defs.’ Cont. Opp’n”).
[5] The defendants describe the UPO as “a District of Columbia not-for-profit corporation dedicated to providing social services in the city.” Defs.’ Mem. at 4 & n.2.
[6] Neither the plaintiff nor the defendants provide the date on which the plaintiff’s employment was terminated.
[7] The Court will not entertain the plaintiff’s submissions in support of his opposition to the defendants’
motion to dismiss or of his motion for a continuance to the extent that they contain factual allegations not included
in his complaint. St. Francis Xavier Parochial Sch.,
[8] The defendants argue in the alternative, Defs.’ Mem. at 13-15, that the plaintiff’s wrongful termination claim fails because he has a remedy under the Whistleblower Protection Act (“the Act”), 5 U.S.C. § 2302(b). However, the Court notes that, by its terms, the Act applies only to federal employees, 5 U.S.C. § 2105(a) (generally defining an “employee” as an employee of the federal government for purposes of the Act). As such, the plaintiff, as an employee of a private organization, would have no remedy under the Act. Oddly, the defendants have not included the plaintiff’s claim for retaliation in violation of the Whistleblower Protection Act, Compl. ¶ 94, in their motion to dismiss.
[9] The plaintiff’s complaint indicates that he brings this action as an at-will employee. Compl. ¶ 82.
[10] The District of Columbia recognizes no cause of action for “extreme and outrageous conduct.” Because the
recognized tort of intentional infliction of emotion distress encompasses the element of “extreme and outrageous
conduct,” the Court construes plaintiff’s extreme and outrageous conduct claim as one for intentional infliction of
emotional distress, as did the defendants in their motion to dismiss. Defs.’ Mem. at 18 n.7; see Williams v. District
of Columbia,
[11] The defendants construe the plaintiff’s claim as one under Title VII. Defs.’ Mem. at 21 n. 8.
[12] Because the plaintiff was employed by a private organization, he is not required to exhaust any
administrative remedies in order to file suit under the DCHRA because “[g]enerally, only District of Columbia
government employees are required to exhaust their administrative remedies prior to filing a lawsuit under the
DCHRA.” Ndondji v. Interpark Inc.,
[13] Although the defendants argue that the plaintiff’s hostile work environment claim should be dismissed because Ms. Thomas, as an individual, is not the proper party, Defs.’ Mem. at 21 n.8, the District of Columbia Court of Appeals has held that when a person fits within the DCHRA definition of an “employer,” D.C. Code § 2– 1401.02(10) (including, among others, “any person acting in the interest of such employer, directly or indirectly”), (continued . . . )
[15] The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.