Carson v. Sim

MEMORANDUM OPINION AND ORDER

RICHARD W. ROBERTS, District Judge.

Plaintiff Rodney Carson brings this action against his former employer, the Potomac Electric Power Company (“Pepeo”) and its President, William Sim, alleging in his amended complaint claims of discrimination and retaliation based on race, sex, and disability in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq., intentional infliction of emotional distress, and breach of contract. The defendants have moved to dismiss Carson’s amended complaint. Because Carson has stated a race discrimination claim regarding a promotion denied him in 2003, the motion will be denied as to that claim. As to the remaining claims, because Carson failed to exhaust his administrative remedies for some claims or otherwise failed to state a claim for which relief can be granted for others, and alleges yet other claims that are preempted by statute, those remaining claims will be dismissed.

BACKGROUND

Carson, a black male born in 1963, worked at Pepeo for fifteen years and achieved a pay grade of 13. (Am. Compl. ¶ 5, Ex. 1 (“Carson Aff.”) ¶¶ 1, 11.) On several occasions, Carson was temporarily promoted to crew leader with a pay grade of 15, and to lead mechanic with a pay grade of 17. However, Carson never received a permanent promotion above pay grade 13. (Carson Aff. ¶¶ 12-14, 17-19.) According to Carson, when he was the second-most senior employee in his career field at Pepeo and he had completed all the requirements to become a crew leader, he asked for the second time to be promoted and to enroll in the training program for lead mechanic. {Id. ¶¶ 14-15, 18-20.) Pepeo responded by allegedly refusing to assign Carson to any more temporary upgrades, while giving temporary upgrades to a woman with allegedly less experience and seniority. (Id. ¶¶ 23-26, 28-30, 33-34.) Pepeo also denied Carson’s promotion and additional enrollment request. Instead, it promoted to the crew leader position a “non-minority” male allegedly with less qualifications, experience and seniority, and after enrolling him in the lead mechanic training program, promoted him to the lead mechanic position. (Id. ¶¶ 21-22, 31-32.)

Carson filed a complaint with Pepco’s Human Resources department, alleging that Pepeo discriminated against him and subjected him to a hostile work environment. (Carson Aff. ¶ 35.) Carson alleges that three days after he filed that complaint, he was retaliated against by Pepeo when a• co-worker falsely reported that Carson did not complete an assignment correctly. (Id. ¶ 36.) Carson also asserts that he suffered what he describes as an “emotional breakdown” that resulted in a “work related Depressive Disorder.” (Id. ¶¶ 38-39.) In January 2004, Carson filed with the D.C. Office of Human Rights and the Equal Employment Opportunity Commission (“EEOC”) a charge of discrimination alleging that Pepeo discriminated against him based upon race and sex, and retaliated against him. The charge of discrimination stated, in relevant part:

I, Rodney Carson, believe I have been discriminated against by my employer based on my race (Black) and sex (male) by being denied promotion, subjected to a hostile work environment, and being subjected to a loss of pay, leave, and overtime. I have also been subjected to retaliation, after I complained about the discrimination.

From 1/02 to 8/03, I functioned in a temporary upgrade in the position of Crewleader. However, when I officially applied for the promotion in 10/03, I did not get the job. Although there were two vacancies, the jobs were given to two less-qualified employees with less seniority. This was an intentional interference with employee and union contracts. On 8/15/03, the foreman (black male) told my co-worker that I thought I “knew everything” and that he has a “trick” for me. On 9/30/03, the general foreman (white male) told my foreman to “watch me.” And on 10/9/03, the foreman told two of my co-workers that he was trying to “get” me.

From 3/31/03 to 9/29/03, I was performing the job of Lead Mechanic-grade 17. On 9/29/03, I was told that I was no longer needed in that position and was sent back to the temporary Crewleader position. That same day a co-worker (black female) returned from a medical leave and was given the Mechanic position. Prior to her medical leave, she was in the Conduit Department-grade 13. I have more seniority than my female co-worker and should not have been removed from that position.

(Pl.’s Opp’n to Pepco’s Mot. to Dismiss or for Summ. J. (“PL’s Opp’n”), Ex. 5 at 1-2.) In addition, according to Carson, Pepeo terminated his employment in 2006 in retaliation for complaining about the discrimination and the hostile work environment and insisting that Pepeo provide workers compensation. (Carson Aff. ¶ 2.)

Carson’s amended complaint contains eight counts. Counts I and II allege claims of race and sex. discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., for failing to promote him to vacancies at pay grades 15 or 17 and thrice failing to enroll him in the training program for the lead mechanic, pay grade 17 position. They also allege a variety of other discriminatory incidents, such as an August 2003 rescission of a temporary promotion, several occasions between August and December 2003 where Pepeo purportedly decided not to temporarily upgrade Carson, and Carson’s supervisor wrongly accusing Carson of failing to complete a task correctly. The amended complaint also alleges claims of breach of contract for denying Carson medical and workers compensation benefits from 2003 through 2006 and for denying Carson entry into training programs that would have made him eligible for promotion (Counts III through V); disability discrimination in violation of the ADA by failing to accommodate him despite the fact that he was disabled by workplace stress (Count VI); intentional infliction of emotional distress (Count VII); and retaliatory discharge (Count VIII). The defendants have moved to dismiss or for summary judgment, arguing that all counts should be dismissed against defendant Sim because Carson does not allege any act or omission on behalf of Sim 1 ; that judgment should be entered for the defendants on counts I and II because Carson did not exhaust his administrative remedies for the incidents not raised in his EEOC charge, and the remaining incidents are insufficient as a matter of law to support a claim of discrimination; that Counts III through V should be dismissed because breach of contract claims are preempted by a collective bargaining agreement (“CBA”) and Carson failed to exhaust the grievance and arbitration provisions of the CBA and failed to timely raise such claims; that Count VI should be dismissed for failure to exhaust administrative remedies because Carson did not file a charge of disability discrimination with the D.C. Office of Human Rights or the EEOC; that Carson’s intentional infliction of emotional distress should be dismissed because it is preempted by the CBA and the D.C. Workers’ Compensation Act, and that even if it were not preempted, the amended complaint fails to allege a plausible claim of intentional infliction of emotional distress; and that Carson’s retaliatory discharge claim should be dismissed because the amended complaint fails to allege a plausible claim of retaliatory discharge. Carson opposes the defendants’ motion.

DISCUSSION

A complaint can be dismissed under Federal Rule of Civil Procedure 12(b)(6) when the complaint fails to state a claim upon which relief can be granted. Peavey v. Holder, 657 F.Supp.2d 180, 185 (D.D.C.2009) (citing Fed.R.Civ.P. 12(b)(6)). “A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint.” Smith-Thompson v. Dist. of Columbia, 657 F.Supp.2d 123, 129 (D.D.C.2009).

To survive a motion to dismiss, a complaint must contain sufficient factual matter, acceptable as true, to “state a claim to relief that is plausible on its face.” ... A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.

Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The complaint must be construed in the light most favorable to the plaintiff and “the court must assume the truth of all well-pleaded allegations.” Warren v. Dist. of Columbia, 353 F.3d 36, 39 (D.C.Cir.2004). In deciding a motion brought under Rule 12(b)(6), a court does not consider matters outside the pleadings, but a court may consider on a motion to dismiss “the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint,” Gustave-Schmidt v. Chao, 226 F.Supp.2d 191, 196 (D.D.C.2002), or “documents ‘upon which the plaintiffs complaint necessarily relies’ even if the document is produced not by the plaintiff in the complaint but by the defendant in a motion to dismiss,” Hinton v. Corr. Corp. of Am., 624 F.Supp.2d 45, 46 (D.D.C.2009) (quoting Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir.1998)).

1. DISCRIMINATION AND RETALIATION

In Count I of his amended complaint, Carson alleges that he applied for a promotion to pay grades 15 and 17 in 2003, but Pepeo denied it on the basis of his race and his sex. (Am. Compl. ¶¶ 6-7, Carson Aff. ¶¶ 18-21.) In Count II, Carson alleges that Pepeo discriminated against him on the basis of his race and his sex in 2003 by twice refusing to enroll him in a training program for a promotion to the position of lead mechanic, pay grade 17. (Am. Compl. ¶ 12, Carson Aff. ¶¶ 18-21, 31.) The defendants argue that these counts should be dismissed because Carson should be allowed to advance only claims he included in his charge of discrimination, which they claim did not include those in Counts I and II. The defendants then argue that the two claims that Carson did include in his charge of discrimination — the October 2003 denial of his application for a promotion to a crew leader position, and the September 2003 revocation of his temporary assignment to the lead mechanic position and subsequent reassignment of that position to a purportedly less qualified woman (Defs.’ Mem. in Supp. of Mot. to Dismiss or for Summ. J. (“Defs.’ Mem.”) at 10, Ex. A at 1-2) — -are insufficient to form the basis of a viable Title VII cause of action. (Defs.’ Mem. at 7.) Carson argues the defendants are “trivializing] the seriousness of this litigation” and that his charge of discrimination sufficiently contained allegations of race and sex discrimination and retaliation to survive the defendants’ motion. (PL’s Opp’n at 13.)

“Before suing under either the ADEA or Title VII, an aggrieved [non-federal employee] must exhaust his administrative remedies by filing a charge of discrimination with the EEOC within 180 days of the alleged discriminatory incident.” Washington v. Washington Metro. Area Transit Auth., 160 F.3d 750, 752 (D.C.Cir.1998). “ ‘Only after the EEOC has notified the aggrieved person of its decision to dismiss or its inability to bring a civil action within the requisite time period can that person bring a civil action herself.’ ” Browne v. Potomac Elec. Power Co., Civil Action No. 05-1177(RWR), 2006 WL 1825796 at *2 (D.D.C. July 3, 2006) (quoting Park v. Howard Univ., 71 F.3d 904, 907 (D.C.Cir.1995)). Thereafter, a Title VII lawsuit following an administrative charge of discrimination is limited in scope to the claims that were included in the charge. Iweala v. Operational Techs. Servs., 634 F.Supp.2d 73, 83 (D.D.C.2009).

Here, Carson provides no evidence that he filed any administrative charges of discrimination regarding the incidents of discrimination that were not included in the January 2004 charge of discrimination. 2 While Carson notes that his charge of discrimination does contain allegations of race and sex discrimination and retaliation, the issue is whether Carson exhausted his administrative remedies for the discrete incidents of discrimination other than the October 2003 denial of his application for a promotion to a crew leader position, and the September 2003 revocation of his temporary assignment to the lead mechanic position. Carson has provided nothing to show that he even attempted to exhaust his administrative remedies for the inci dents not included in the charge of discrimination. See Shipman v. Vilsack, 692 F.Supp.2d 113, 116 (D.D.C.2010) (dismissing unexhausted claims where the plaintiff did not refute “that she did not exhaust certain claims and she has not provided any argument for equitable tolling”).

The defendants further argue that the incidents of discrimination and retaliation alleged in Carson’s administrative charge are insufficient as a matter of law to support Carson’s claims under Title VII. They assert that a prima facie case of race and sex discrimination when Pepeo denied him the October 2003 crew leader promotion requires proof that the positions were filled by persons outside of his protected class. Since both employees who were promoted were men and one was black, they say, Carson’s claim fails.

The defendants’ premise is wrong. Title VII does not require an allegation or a showing that Carson’s promotion request was rejected in favor of anyone outside of his protected class. The fact that an employer selects a person from within the same protected class is not, by itself, grounds for dismissing a Title VII claim. Stella v. Mineta, 284 F.3d 135, 145 (D.C.Cir.2002). Nor must a Title VII complaint contain facts establishing a prima facie case. Twombly, 550 U.S. at 569, 127 S.Ct. 1955 (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002)). Beyond the pleading stage, Carson may still demonstrate in establishing a prima facie case that “the employer treated [him] worse than others because [he] was a member of the protected class.” Stella, 284 F.3d at 145. Pepco’s selection of employees within Carson’s protected class may bear upon the ultimate question of whether discrimination was at the root of Pepco’s decision to deny the promotion to Carson, but such evidence alone does not doom Carson’s prima facie case. Teneyck v. Omni Shoreham Hotel, 365 F.3d 1139, 1153 (D.C.Cir.2004); see also Stella, 284 F.3d at 146 (disavowing the language in Brown v. Brody, 199 F.3d 446, 451 (D.C.Cir.1999) that a sex discrimination claim regarding lateral transfers would be baseless because two of the employees selected were women); Ginger v. Dist. of Columbia, 527 F.3d 1340, 1344 (D.C.Cir.2008); George v. Leavitt, 407 F.3d 405, 412-13 (D.C.Cir.2005); Wada v. Tomlinson, 517 F.Supp.2d 148, 195 (D.D.C.2007). In any event, Carson’s allegation that Pepeo denied his promotion request and promoted a white person with less seniority and experience is factually sufficient to state a claim of racial discrimination that is facially plausible. 3

II. BREACH OF CONTRACT

In Counts III through V, Carson alleges that Pepeo breached his employment contract, as codified in the collective bargaining agreement (“CBA”), in three ways. He claims Pepeo denied him medical benefits from 2003 through 2006 (Am. Compl. ¶ 15), denied him entry into training programs that would qualify him for permanent promotion to positions to which he was temporarily appointed (Am. Compl. ¶¶ 19-22), and denied him workers compensation benefits from 2003 through 2006. (Am. Compl. ¶¶ 23-25.) The defendants move to dismiss Counts III through V as preempted by Section 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185 et seq., because they require interpretation of the CBA, Carson failed to exhaust the grievance and arbitration requirements of the CBA, and the six-month limitations period applicable to actions brought under Section 301 of the LMRA expired before Carson raised his claims. (Defs.’ Mem. at 13-17.)

While Carson argues that his breach of contract claims are not preempted by the LMRA, he agrees that his breach of contract claims require interpretation of the CBA. (PL’s Opp’n at 14.) “Section 301 [of the LMRA] completely preempts any action predicated upon state law if that action ‘depends upon the meaning of a collective-bargaining agreement.’ ” Cephas v. MVM, Inc., 520 F.3d 480, 484 (D.C.Cir.2008) (quoting Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 405-06, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988)). “The pre-emptive force of § 301 is so powerful as to displace entirely any state cause of action ‘for violation of contracts between an employer and a labor organization.’ ” Cephas, 520 F.3d at 484 (quoting Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 23, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)). “Section 301 of the LMRA not only gives federal courts jurisdiction over claims involving labor contract disputes but also requires courts to apply federal substantive law to such disputes.” Bush v. Clark Constr. & Concrete Corp., 267 F.Supp.2d 43, 46 (D.D.C.2003) (citing Textile Workers of America v. Lincoln Mills, 353 U.S. 448, 456, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957) and Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557, 560, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968)). “In order to prevent the possibility of the terms in a CBA being given different meanings under state law and federal law, the Supreme Court concluded that ‘in enacting § 301 Congress intended doctrines of federal labor law to uniformly prevail over inconsistent state rules.’ ” Bush, 267 F.Supp.2d at 46 (quoting International Bhd. of Elec. Workers v. Hechler, 481 U.S. 851, 857, 107 S.Ct. 2161, 95 L.Ed.2d 791 (1987)).

“As a general rule, an employee-plaintiff who is subject to a collective bargaining agreement must seek to resolve [his] contract dispute under the agreement’s grievance and arbitration procedures before he ... can maintain a suit against his ... union or employer.” Plain v. AT & T, Corp., 424 F.Supp.2d 11, 23 (D.D.C.2006) (citing Republic Steel Corp. v. Maddox, 379 U.S. 650, 653, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965) and Commc’n Workers of Am. v. AT & T, 40 F.3d 426, 434 (D.C.Cir.1994)); see also Chester v. Wash. Metro. Area Transit Auth., 335 F.Supp.2d 57, 64 (D.D.C.2004) (quoting Republic Steel Corp. for the proposition that “plaintiff ‘may not seek redress in court on claims that could and should have been grieved’ ”).

Here, Article 17 of the CBA covering Carson’s employment sets forth a grievance procedure for purported violations of the CBA. (Defs.’ Mem. Ex. C.) The defendants assert, and Carson does not contradict, that Carson did not file any grievance or otherwise follow the procedure set forth in Article 17 regarding the breach of contract claims. Therefore, Carson failed to exhaust his administrative remedies under the CBA and Counts III, IV, and V will be dismissed. See Bush, 267 F.Supp.2d at 46 (dismissing the plaintiffs claim for failing to exhaust administrative remedies because employees covered by a CBA “must attempt to use the grievance procedures previously agreed upon by the employer and union before resorting to any other form of redress”).

III. DISABILITY DISCRIMINATION

In Count VI, Carson alleges that the ADA was violated when Pepeo, “aware of his disability caused by workplace stress, refused to accommodate him in the workplace and did terminate his employment asserting Carson’s failure to return to work.” The defendants argue that Count VI should be dismissed because Carson did not exhaust his administrative remedies by including a claim of disability discrimination in his charge of discrimination filed with the D.C. Office of Human Rights and the EEOC.

“A plaintiff seeking to file a civil action for disability discrimination under the ADA is required to exhaust his administrative remedies first.” Smith v. Janey, 664 F.Supp.2d 1, 9 (D.D.C.2009) (citing 29 U.S.C. § 626(d) and Jones v. Univ. of Dist. of Columbia) 505 F.Supp.2d 78, 81-82 (D.D.C.2007) (dismissing ADA claims for failure to exhaust administrative remedies)). “The ADA requires exhaustion of administrative remedies by filing an administrative charge with the EEOC within 180 days of the alleged discriminatory action, unless the plaintiff has first filed administrative proceedings with a state or local agency, in which case the limitations period is extended to a maximum of 300 days.” Ling Yuan Hu v. George Wash. Univ., Civil Action No. 10-1939(RMC), 766 F.Supp.2d 236, 241, 2011 WL 713700, at *3 (D.D.C. Mar. 2, 2011) (citing Gupta v. Northrop Grumman Corp., 462 F.Supp.2d 56, 58 (D.D.C.2006)). Carson’s charge of discrimination does not mention disability discrimination nor was the box next to the option for disability discrimination checked on the charge sheet. He offers no basis for finding that his failure to exhaust this claim is not fatal. Count VT will be dismissed.

IV. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

In Count VII, Carson alleges that Pepeo, “by way of its agents, created an egregiously emotionally and physically threatening environment,” which resulted in Carson’s emotional breakdown and irreparably damaged his marital relationship, self-image, and his ability to interact with the public. (Am. Compl. ¶¶ 29-32.) The defendants argue that this count should be dismissed because it is preempted by the D.C. Workers’ Compensation Act (“WCA”), and that even if it were not preempted, Count VII fails to state a claim for which relief could be granted. (Defs.’ Mem. at 21-24.) Carson counters that he properly pled his claim of intentional infliction of emotional distress because “denial of worker’s compensation benefits by Pepeo, which [Carson] is clearly entitled to, is yet another example of retaliation.” (Pl.’s Opp’n at 16.)

Under District of Columbia law, a prima facie case of intentional infliction of emotional distress requires proof of “(1) extreme and outrageous conduct on behalf of the defendant which (2) intentionally or recklessly (3) causes the plaintiff severe emotional distress.” Larijani v. Georgetown Univ., 791 A.2d 41, 44 (D.C.2002). “The conduct must be ‘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.’ ” Id. (quoting Homan v. Goyal, 711 A.2d 812, 818 (D.C.1998)). “In determining whether specific acts rise to the extreme and outrageous level, courts are guided by ‘(1) applicable contemporary community standards of offensiveness and decency, and (2) the specific context in which the conduct took place.’ ” Halcomb v. Woods, 610 F.Supp.2d 77, 80 (D.D.C. 2009) (quoting King v. Kidd, 640 A.2d 656, 668 (D.C.1993)).

Carson’s amended complaint does not plausibly allege a viable claim of intentional infliction of emotional distress. It alleges the type of conduct that generally accompanies a disharmonious employment relationship. In general, “employer-employee conflicts do not rise to the level of outrageous conduct” necessary for a viable claim of intentional infliction of emotional distress. Duncan v. Children’s Nat’l Med. Ctr., 702 A.2d 207, 211-12 (D.C.1997) (affirming dismissal of intentional infliction of emotional distress claim); see also Kerrigan v. Britches of Georgetowne, 705 A.2d 624, 628 (D.C.1997) (holding that allegation that employer fabricated a sexual harassment charge against employee, manufactured evidence to use against him on that charge, and unjustifiably demoted him, “even construed as true, was of the type attributable to employer-employee conflicts that do not, as a matter of law, rise to the level of outrageous conduct” necessary to state a viable claim of intentional infliction of emotional distress, and affirming dismissal of claim) (internal quotation omitted).

Even if Carson had sufficiently pled extreme or outrageous behavior by Pepeo, Carson would still need to demonstrate that his common law claim of intentional infliction of emotional distress is not preempted by the WCA. “The [Workers’] Compensation Act is a comprehensive legislative scheme requiring employers to provide compensation for employees who are disabled or killed in the course of employment.” Harrington v. Moss, 407 A.2d 658, 660 (D.C.1979) (citing D.C.Code § 36-501, and 33 U.S.C. § 903). “The Act ... provides employees with a practical and expeditious remedy for work-related accidents or injuries.” Harrington, 407 A.2d at 660. “The Act ... deprives employees and their representatives of the right to pursue common law tort suits, such as wrongful death actions, against their employers or co-workers if the injuries are covered by the Act.” Id. at 660-61 (citing Ciarrocchi v. James Kane Co., 116 F.Supp. 848, 851 (D.D.C.1953)). In other words, “if an injury is within the Act’s coverage, an employee (or representative) may only pursue a claim before the Benefits Review Board,” and may not pursue such a claim in court. Harrington, 407 A.2d at 661 (citing O’Rourke v. Long, 41 N.Y.2d 219, 391 N.Y.S.2d 553, 359 N.E.2d 1347, 1350 (1976)).

A claim for the tort of intentional infliction of emotional distress falls within the Act’s coverage. See Tatum v. Hyatt Corp., 918 F.Supp. 5, 8 (D.D.C.1994) (dismissing the plaintiffs claims of assault and battery, intentional infliction of emotional distress, and negligent infliction of emotional distress because the WCA provided the exclusive remedy for the plaintiffs workplace injuries); Ramey v. Potomac Elec. Power Co., 468 F.Supp.2d 51, 55-56 (D.D.C.2006) (dismissing the plaintiffs common law claims, including claims of intentional infliction of emotional distress and negligent infliction of emotional distress, because the WCA provided the exclusive remedy for those common law claims and the plaintiff did not demonstrate that his claims fell outside of the WCA). “[B]ecause the WCA contains a number of presumptions that favor coverage, the employee bears the burden of proving that the WCA does not apply.” Hamilton v. Sanofi-Aventis U.S. Inc., 628 F.Supp.2d 59, 63 (D.D.C.2009). Here, Carson argues that he properly pled this claim because “denial of worker’s compensation benefits by Pepeo, which [Carson] is clearly entitled to, is yet another example of retaliation.” (Pl.’s Opp’n at 16.) This assertion falls short of Carson meeting his burden to show that the WCA does not preempt this claim. Therefore, Count VII will be dismissed.

V. RETALIATORY DISCHARGE

Count VIII is captioned as a retaliatory discharge claim, although the text of the count makes the intended nature of the claim ambiguous. Carson alleges that Pepeo terminated his employment in 2006 in retaliation for Carson seeking promotions and medical benefits and filing a worker’s compensation claim. (Am. Compl. ¶ 33.) The defendants argue that if the claim is a common law claim, it is preempted because there is a statutory remedy for such purported contract violations, and it fails to state a cognizable wrongful discharge claim. (Defs.’ Mem. at 24-26.) They add that if the claim is a statutory claim under Title VII, it is unexhausted. (Defs.’ Mem. at 10.) Carson’s opposition maintains that Count VIII was brought under Title VII, despite the fact that the amended complaint cites Title VII as the basis for only Counts I and II, and Count VIII nowhere cites to Title VII. Whichever cause of action Count VIII is intended to allege, it fails.

As is discussed above, Counts III through V do not plead viable breach of contract claims for violations of the CBA because Carson did not file any grievance or otherwise follow the procedure set forth in Article 17 of the CBA. To the extent that Count VIII pleads a claim for violations of the WCA, he has not shown that such an unexhausted claim would not be similarly preempted by statute. See Harrington, 407 A.2d at 660.

Similarly, to the extent that Count VIII is intended to plead a common law claim of wrongful discharge, it does not. “In some circumstances, [courts in the District of Columbia] have recognized a common law tort of wrongful discharge ‘as an exception to the traditional at-will doctrine governing termination of employment, where the discharge violates a clear mandate of public policy.’” 4 Carter v. Dist. of Columbia, 980 A.2d 1217, 1225 (D.C.2009) (quoting Dist. of Columbia v. Beretta, U.S.A., Corp., 872 A.2d 633, 645 (D.C.2005) (internal quotation omitted)). The mandate of public policy must “be firmly anchored in either the Constitution or in a statute or regulation which clearly reflects the particular ‘public policy’ being relied upon,” and it must arise from a statute or regulation that does not provide its own remedy. Potts v. Howard Univ. Hosp., 736 F.Supp.2d 87, 97 (2010) (quoting Warren v. Coastal Int’l Secs., Inc., 96 Fed.Appx. 722, 722-23 (D.C.Cir.2004)); see also Carter, 980 A.2d at 1226 (declining to create a new exception to the at-will employment doctrine in order to vindicate a public policy since a statute specifically articulated the policy and created a cause of action to enforce it). One of those circumstances is where “ ‘the sole reason for [the employee’s] discharge [was] the employee’s refusal to violate the law.” Potts, 736 F.Supp.2d at 97 (quoting Adams v. George W. Cochran & Co., 597 A.2d 28, 34 (D.C.1991)); see also Fingerhut v. Children’s Nat’l Med. Ctr., 738 A.2d 799, 802, 807 (D.C.1999) (reversing dismissal of the plaintiffs wrongful discharge claim, where the plaintiff alleged that he was fired for refusing to violate District of Columbia statutes). Other circumstances where the courts in the District of Columbia have recognized claims for wrongful discharge in violation of public policy include termination in retaliation for testifying about a matter of public policy before the District of Columbia Council, see Carl v. Children’s Hosp., 702 A.2d 159 (D.C.1997), and termination in retaliation for protesting violations of health, food, and safety regulations. See Washington v. Guest Servs., Inc., 718 A.2d 1071 (D.C.1998). Here, Carson’s amended complaint identifies no public policy violated by his termination that cannot be enforced by existing causes of action, nor does it allege that Pepeo terminated his employment for refusing to violate a law, for testifying about a matter of public policy, or for protesting regulatory violations.

Finally, the text of Count VIII cannot be stretched to imply a viable claim of retaliation in violation of Title VII. “The elements of a claim of retaliation [under Title VII] are that the plaintiff engaged in a statutorily protected activity, the employer treated the plaintiff adversely, and a causal connection existed between the two.” Winston v. Clough, 712 F.Supp.2d 1, 11 (D.D.C.2010) (internal citations omitted). Not only does Count VIII not specify that the retaliatory discharge violated Title VII or even mention Title VII, Carson does not argue that he made any attempt to exhaust his administrative remedies regarding such a discharge. Nor does he offer any authority holding that his failure to exhaust his retaliation claim is not fatal because the claims were sufficiently related to his administratively exhausted claims. “Title VII ‘[complainants must timely exhaust the[ir] administrative remedies before bringing their claims to court.’ ” Payne v. Salazar, 619 F.3d 56, 65 (D.C.Cir.2010) (quoting Bowden v. United States, 106 F.3d 433, 437 (D.C.Cir.1997)). There is unresolved 5 discord in this circuit between district courts that have held that a plaintiff must exhaust his administrative remedies with respect to acts that occurred after the filing of an initial administrative charge, see, e.g., Taylor v. Mabus, 685 F.Supp.2d 94, 99 (D.D.C.2010); Romero-Ostolaza v. Ridge, 370 F.Supp.2d 139, 148-50 (D.D.C.2005) (stating that Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) “has, on the whole, been understood to ... bar [unexhausted claims of retaliation based on] discrete acts occurring after the time period, after the filing of an administrative complaint, when a plaintiff does not file a new complaint or amend the old complaint but instead presents these acts for the first time in federal court”); Coleman-Adebayo v. Leavitt, 326 F.Supp.2d 132, 137-38 (D.D.C.2004) (dismissing post-administrative complaint retaliation claim where the plaintiff failed to exhaust, and stating that there was “no reason” to treat post-administrative complaint retaliation charges “differently from other complaints of discrete acts”); and district courts that have held that claims of retaliation based on acts that occurred after an initial charge was filed need not be separately exhausted where they necessarily would have come within the “scope of any investigation that reasonably could have been expected to result from [the] initial [EEO] charge.” See Hazel v. Wash. Metro. Area Transit Auth., Civil Action No. 02-1375(RWR), 2006 WL 3623693, at *8 (D.D.C. Dec. 4, 2006); Thomas v. Vilsack, 718 F.Supp.2d 106, 121 (D.D.C.2010) (following Hazel and progeny, but granting motion to dismiss where the purported retaliation was not “of a like kind” to the allegations in the plaintiffs EEO complaint). Here, Carson pleads no facts plausibly showing that the 2006 discharge referred to in Count VIII was caused by or is of a like kind to the claims preserved in Carson’s 2003 charge of discrimination. Therefore, this claim will be dismissed.

CONCLUSION AND ORDER

Carson has alleged no acts against Sim and he will be dismissed as a defendant. Except for the race discrimination claim in Count One regarding the promotion Pepeo denied Carson in October 2003, he failed to state a claim for which relief can be granted in Counts I, II, and VI through VIII. Carson’s claims in Counts III through V are preempted by statute. Therefore, it is hereby

ORDERED that the defendant’s motion [20] be, and hereby is, GRANTED IN PART and DENIED IN PART. The amended complaint is dismissed as to defendant Sim. All claims in the amended complaint, except for the race discrimination claim in Count I regarding the promotion Pepeo denied Carson in October 2003 are dismissed.

Notes

1

. Carson has waived or conceded this issue by completely failing to address or rebut the defendants’ arguments. Therefore all claims against defendant Sim will be dismissed. See CSX Transp., Inc. v. Commercial Union Ins., Co., 82 F.3d 478, 482-83 (D.C.Cir.1996); Maib v. F.D.I.C., Civil Action No. 09-1261(RWR), 771 F.Supp.2d 14, 20, 2011 WL 1028000, at *5 (D.D.C. March 23, 2011); Felter v. Salazar, 679 F.Supp.2d 1, at 4 n. 2 (D.D.C.2010).

2

. Carson provides no argument that the doctrine of equitable tolling should be applied to revive the claims about the incidents that were not included in the EEOC charge.

3

. The facts that Carson does plead regarding sex discrimination bear not upon the October 2003 promotion denial or the refusal to enroll him in training, but upon Pepeo repeatedly giving temporary upgrades to a woman who allegedly had less seniority and experience rather than to him. (See Carson Aff. ¶¶ 24-25, 34.) The upgrades claim, like the enrollment claim in Count II, is unexhausted. Thus, only the race claim in Count I survives, and the remainder of Count I and all of Count II will be dismissed.

4

. The District of Columbia Court of Appeals has held that the tort of wrongful discharge in violation of public policy is available for both at-will employees and contractual employees. Byrd v. VOCA Corp., 962 A.2d 927, 934 (D.C.2008).

5

. See Weber v. Battista, 494 F.3d 179, 183-84 (D.C.Cir.2007) (declining to decide whether a claim arising after the filing of a formal administrative complaint must be raised with the agency's EEO office before being brought in the district court).

Case Details

Case Name: Carson v. Sim

Court Name: District Court, District of Columbia

Date Published: Apr 22, 2011

Citation: 778 F. Supp. 2d 85

Docket Number: Civil Action 04-1641 (RWR)

Court Abbreviation: D.D.C.