Howard University v. Watkins

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
HOWARD UNIVERSITY, )
)
Plaintiff, )
)
v. ) Civil Action No. 07-472 (RWR)
)
BELINDA LIGHTFOOT WATKINS, )
)
Defendant. )
______________________________)

MEMORANDUM OPINION AND ORDER

Plaintiff Howard University (“Howard”) brings this action

against Belinda Lightfoot Watkins, Howard’s former Acting Dean

for Student Life and Activities, for indemnification, fraud, and

misrepresentation, based upon Watkins’ actions that resulted in a

successful claim of discrimination and retaliation against Howard

by a former employee. Watkins has moved to dismiss or in the

alternative for summary judgment, and Howard opposes. Because

the complaint states plausible claims of equitable

indemnification, fraud and misrepresentation, the motion will be

denied.

BACKGROUND

The complaint alleges the following facts. Watkins was

employed by Howard from 1976 through July 2006. In 1998, Watkins

was named the Acting Dean for Student Life and Activities, which

was a supervisory position. Two of the employees supervised by

Watkins were an administrative assistant named Paulette Porter,
 -2-

and an Acting Assistant Dean of Students named Daniel Goodwin.

(Compl. ¶¶ 5-7, 14.) In September 1998, Goodwin suffered a

stroke that caused him to be hospitalized. Goodwin learned

during his hospital stay that he was infected with the Human

Immunodeficiency Virus (“HIV”). (Id. ¶ 16.) Porter frequently

visited Goodwin during Goodwin’s hospital stay. During those

visits, Porter learned that Goodwin was infected with HIV, and

communicated that information to Watkins. (Id. ¶¶ 17-18.) When

Goodwin returned to work in February 1999, Porter harassed

Goodwin. (Id. ¶¶ 19-21.) Watkins knew how Porter was treating

Goodwin, but did not discipline Porter or otherwise stop the

harassment. Indeed, Watkins made inappropriate statements about

Goodwin and about male students who met with Goodwin which led

students to believe that Goodwin suffered from Acquired Immune

Deficiency Syndrome. (Id. ¶¶ 22-25.)

Goodwin experienced side effects from his HIV medication

that prevented him from arriving at the office at the regularly

scheduled starting time. He attempted to compensate for his late

arrival by staying past the office’s regularly scheduled closing

time, but Watkins admonished Goodwin by letter for arriving late

to the office. Goodwin responded by asking Watkins to

accommodate him by allowing him to arrive at work after the

office opened and stay until after the office closed, but Watkins

refused Goodwin's proposed accommodation. (Compl. ¶¶ 28-32.)
 -3-

In 2002, Watkins proposed that Howard refrain from renewing

Goodwin’s contract as Acting Assistant Dean of Students. (Id.

¶ 34.) Representatives from Howard’s Office of General Counsel

and Office of Human Resources Management asked Watkins to explain

why she recommended not renewing Goodwin’s contract, and if

Goodwin was a member of a class protected by federal or local

anti-discrimination laws. Watkins responded by stating that

Goodwin had “behavior problems” including excessive socializing,

disrespectful behavior, misrepresenting his position, and

spreading rumors that Watkins had a drinking problem. Watkins

did not inform Howard’s representatives that Goodwin was infected

with HIV. Howard approved Watkins’ recommendation to not renew

Goodwin’s employment contract, which then expired on June 30,

2002. Howard would not have approved Watkins’ recommendation to

not renew Goodwin’s contract had it been aware that Goodwin

suffered from the HIV infection, or that Watkins had denied

Goodwin's request for an accommodation. (Id. ¶¶ 29-30, 35-41,

45.)

Goodwin filed a claim with the U.S. Equal Employment

Opportunity Commission (“EEOC”). The EEOC found that Watkins’

decision to recommend not renewing Goodwin’s contract constituted

retaliation for his request for accommodation. (Id. ¶ 42.)

Goodwin later filed suit against Howard and Watkins, alleging

claims of discrimination in violation of the Americans with
 -4-

Disabilities Act of 1991 (“ADA”), 42 U.S.C. § 12111 et seq., the

District of Columbia Human Rights Act (“DCHRA”), D.C. Code Ann.

§ 2-1401.01 et seq., Section 504 of the Rehabilitation Act, 29

U.S.C. § 794, and the Family and Medical Leave Act of 1993

(“FMLA”), 29 U.S.C. § 2601 et seq. (Def.’s Mem. in Supp. of Mot.

to Dismiss or for Summ. J. (“Def.’s Mem.”) Ex. 1.) Howard

settled Goodwin’s claims against both the University and Watkins

by paying Goodwin $253,000 in damages and attorneys fees.

(Compl. ¶¶ 46-47.)

Howard later filed this four-count complaint1 alleging

claims of equitable indemnity (Count I), misrepresentation by

concealment (Count II), constructive fraud (Count III), and

negligent misrepresentation (Count IV)2. Watkins has moved to

dismiss or for summary judgment, arguing that Howard failed to

plead fraud with particularity, that employers are not allowed to

seek contribution or indemnity from their employees for

1
Howard initially filed this complaint in the United States
District Court for the District of Maryland. However, that court
transferred this action to the District of Columbia. See Howard
University v. Watkins, Civil Action No. 2006-2076 (DKC), 2007 WL
763182, at * 4 (D. Md. March 12, 2007).
2
The defendant asserts, and the plaintiff does not contest,
that the plaintiff’s claims are brought under and governed by
District of Columbia law. (Def.’s Mem. in Supp. of Mot. to
Dismiss or for Summ. J. (“Def.’s Mem.”) at 16.) A court may base
its analysis upon such concessions by parties. Ali v.
Mid-Atlantic Settlement Servs., 640 F. Supp. 2d 1, 10 n.7 (D.D.C.
2009) (citing Jacobsen v. Oliver, 555 F. Supp. 2d 72, 77 (D.D.C.
2007) and CSX Transp., Inc. v. Commercial Union Ins. Co., 82 F.3d
478, 482-83 (D.C. Cir. 1996)).
 -5-

successful claims of discrimination, and that the remaining

claims are merely mislabeled attempts to re-state Count I’s claim

for equitable indemnity. Howard opposes.

DISCUSSION

“A complaint can be dismissed under Rule 12(b)(6) when a

plaintiff 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, 678 (2009) (quoting Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 570 (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
 -6-

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 plaintiff’s 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,” such as Goodwin’s

complaint in the underlying discrimination case. 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)). “[A]

complaint attacked by a Rule 12(b)(6) motion to dismiss does not

need detailed factual allegations[.]” Twombly, 550 U.S. at 555.

However, “[w]here a complaint pleads facts that are ‘merely

consistent with’ a defendant’s liability, it ‘stops short of the

line between possibility and plausibility of entitlement to

relief.’” Iqbal, 556 U.S. at 662 (quoting Twombly, 550 U.S. at

557).

“[W]here both parties submit material outside the pleadings

and ‘the parties are not taken by surprise or deprived of a

reasonable opportunity to contest facts averred outside the

pleadings and the issues involved are discrete’ legal issues, the

court may convert the motion to one for summary judgment

‘without providing notice or the opportunity for discovery to the

parties.’” Highland Renovation Corp. v. Hanover Insurance Group,

620 F. Supp. 2d 79, 82 (D.D.C. 2009) (quoting Tunica-Biloxi Tribe

of La. v. United States, 577 F. Supp. 2d 382, 405 (D.D.C. 2008)
 -7-

and Smith v. United States, 518 F. Supp. 2d 139, 145, 155 (D.D.C.

2007)). A motion for summary judgment is properly granted when

the moving party demonstrates that there is no genuine issue as

to any material fact and that moving party is entitled to

judgment as a matter of law. Moore v. Hartman, 571 F.3d 62, 66

(D.C. Cir. 2009) (citing Fed. R. Civ. P. 56(c) and Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247 (1986)). “In considering

a motion for summary judgment, [a court is to draw] all

‘justifiable inferences’ from the evidence . . . in favor of the

nonmovant.” Cruz-Packer v. Dist. of Columbia, 539 F. Supp. 2d

181, 189 (D.D.C. 2008) (quoting Anderson, 477 U.S. at 255);

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986). The court must determine “whether there is a need

for trial - - whether, in other words, there are any genuine

factual issues that properly can be resolved only by a finder of

fact because they may reasonably be resolved in favor of either

party.” Citizens for Responsibility and Ethics in Wash. v. Bd.

of Governors of the Fed. Reserve, 669 F. Supp. 2d 126, 129

(D.D.C. 2009) (internal quotation omitted).

I. EQUITABLE INDEMNIFICATION

“The common law remedy of indemnity arises from an express

or implied contract giving the right of complete reimbursement to

one party who has been compelled to pay that which should have

been paid by another.” Harris v. Howard Univ., 28 F. Supp. 2d 1,
 -8-

23-24 (D.D.C. 1998) (citing Howard Univ. v. Good Food Serv., 608

A.2d 116 (D.C. 1992)). The “obligation to indemnify exists where

the equities of the case and the relationship of the parties

support shifting responsibility from one party to another.”

Howard Univ. v. Good Food Services, Inc., 608 A.2d 116, 122 (D.C.

1992) (citing Nat’l Health Labs., Inc. v. Ahmadi, 596 A.2d 555,

557-58 (D.C. 1991) and George’s Radio Inc., v. Capital Transit

Co., 126 F.2d 219, 222 (1942)). “In the absence of an express

contractual duty to indemnify, a right to indemnity exists where

a duty to indemnify may be implied out of a relationship between

the parties to prevent a result which is unjust.” Good Food

Services, 608 A.2d at 122; see also C&E Services. v. Ashland,

Inc., 498 F. Supp. 2d 242, 266 (D.D.C. 2007) (stating that

equitable indemnification may be used to obtain an equitable

outcome and prevent injustice or otherwise unsatisfactory

results). If a “wrongful act of one person results in the

imposition of liability upon another without that other’s fault,

indemnity may be recovered from the actual wrongdoer.” Cokas v.

Perkins, 252 F. Supp. 563, 567 (D.D.C. 1966)(stating that “one of

the most common” situations in which courts impose equitable

indemnity is where an employer “has become subject to liability”

because of an employee-tortfeasor). “[A] prerequisite for a

claim for equitable indemnification ‘is that the party seeking it

(indemnitee) have discharged the liability for the party against
 -9-

whom it is sought.’” C&E Services, 498 F. Supp. 2d at 267

(quoting Dist. of Columbia v. Washington Hosp. Ctr., 722 A.2d

332, 340 (D.C. 1998)). “Indemnity has been granted to prevent

unjust enrichment” in several situations, such as where the

“indemnitee was liable only vicariously for the conduct of the

indemnitor,” and where the “indemnitee was induced to act by a

misrepresentation on the part of the indemnitor, upon which [it]

justifiably relied.” Washington Hosp. Ctr., 722 A.2d at 340 n.9.

Watkins argues, citing Northwest Airlines v. Transp. Workers

Union, 451 U.S. 77, 79-80 (1981), that Howard’s claim for

equitable indemnity should be dismissed because employees are not

liable to their employers for contribution or indemnity for Title

VII liability caused by those employees. (Def.’s Mem. at 7-9.)

The Court in Northwest Airlines held that Title VII and the Equal

Pay Act did not create a statutory cause of action for indemnity

or contribution against employees responsible for Title VII

discrimination liability. According to the Court, the

“comprehensive character of the remedial scheme[s] [in the Equal

Pay Act and Title VII] expressly fashioned by Congress strongly

evidences an intent not to authorize additional remedies . . .

The judiciary may not, in the face of such comprehensive

legislative schemes, fashion new remedies that might upset

carefully considered legislative programs ” Northwest Airlines,

451 U.S. at 95-97. The Northwest Airlines opinion addressed the
 -10-

possibility of state law causes of action for equitable

indemnification, by stating that “federal courts, including this

Court, have recognized a right to contribution under state law in

cases in which state law supplied the appropriate rule of

decision.” Id., 451 U.S. at 95, 97 n.38; see also Donajkowski v.

Alpena Power Co., 460 Mich. 243, 264 (1999) (allowing employer to

bring a third-party claim against union in gender discrimination

case brought under federal and state anti-discrimination

statutes); Rodolico v. Unisys Corp., 189 F.R.D. 245, 247

(E.D.N.Y. 1999) (allowing employer to bring claim for

contribution for potential New York Human Rights Law liability).

In this case, even assuming that the ADA, Rehabilitation Act, and

FMLA prohibit employers from bringing causes of action for

contribution or indemnification against employees, at least some

of the appropriate rule of decision is created by state law since

Goodwin’s suit included a claim under the DCHRA.

The DCHRA provides that “[a]ny person claiming to be

aggrieved by an unlawful discriminatory practice shall have a

cause of action in any court of competent jurisdiction for

damages and such other remedies as may be appropriate.” D.C.

Code § 2-1403.16(a). Unlike Title VII or the Equal Pay Act, the

DCHRA imposes liability on individuals. See D.C. Code §

2-1401.02(10); Wallace v. Skadden, Arps, Slate, Meagher & Flom,

715 A.2d 873, 888 (D.C. 1998) (finding that the DCHRA applies to
 -11-

individual partners of law firm when the partners acted in the

interest of the employer, a law partnership); Zelaya v. UNICCO

Serv. Co., 587 F. Supp. 2d 277, 284-85 (D.D.C. 2008) (ruling that

plaintiff’s former supervisor could be held individually liable

under the DCHRA). Furthermore, unlike the situation in Northwest

Airlines where there was no common law cause of action available

at the time the statutes in question were created, a common law

cause of action for equitable indemnification existed at the time

when the District of Columbia legislature enacted the DCHRA.

Watkins has provided no authority establishing that the DCHRA

precludes causes of action for equitable indemnification by

employers, or that the legislature manifested some intention to

foreclose a long-established cause of action such as equitable

indemnification.

Watkins also argues that Howard’s complaint does not state a

plausible claim for equitable indemnity because Howard was at

least partially responsible for the discrimination suffered by

Goodwin independent of Watkins’ actions, making it inequitable to

impose indemnification against Watkins. Watkins further argues

that, while the assertions in the complaint could justify

contribution, Howard is not asking for contribution in its

complaint. (Def.’s Mem. at 10.) According to Watkins, Howard

shares blame for Goodwin’s successful cause of action because

Porter engaged in some of the harassment of Goodwin, University
 -12-

officials other than Watkins had to review and approve the

decision to not renew Goodwin’s contract, and because Howard’s

“in-house experts on accommodation and EEO law reviewed, advised

and concurred in the decisions regarding Goodwin’s employment.”

(Id. at 10-12.)

Watkins’ argument is not persuasive. “When based upon

equitable principles, indemnity is restricted generally to

situations where the indemnitee’s conduct was not as blameworthy

as that of the indemnitor.” Washington Hosp. Ctr., 722 A.2d at

340 (citing R. & G. Orthopedic Appliances v. Curtin, 596 A.2d

530, 544 (D.C. 1991)). Here, Howard’s complaint asserts that its

liability to Goodwin was almost entirely the fault of Watkins,

and to the extent that Porter was responsible for some of the

conduct, Howard’s complaint alleges that Watkins knew of that

conduct and failed to report it, preventing Howard from acting

prophylacticly. (See Compl. ¶¶ 22-25, 35-41, 49; Pl’s Opp’n at

16-18.)

Watkins urges that dismissal of Count I is warranted because

Howard did not tender its defense to Watkins or provide her with

an opportunity to review and approve the terms of the settlement

with Goodwin. (Def.’s Mem. at 12.) However, that assertion is a

defense to the claim, not a showing that no claim has been amply

pled and must be dismissed. See Good Food Services, Inc., 608

A.2d at 125 n.5 (stating that “the general rule is that, in order
 -13-

for an indemnitee to prevail, the indemnitee must show by a

preponderance of the evidence that [it] was actually liable to

the person harmed or that the indemnitee submitted to the

purported indemnitor for approval a proposed settlement with the

plaintiff”). Nor would Watkins be entitled to summary judgment

on Count I. Even if failure to present a proposed settlement to

an indemnitor were an absolute defense to an action for equitable

indemnification, Howard has demonstrated at least that there is a

genuine factual dispute about whether Watkins was presented with

an opportunity to review and approve the settlement with Goodwin.

Howard attaches to its opposition the declaration of Timothy

McCormack, the attorney who represented Howard in Goodwin’s

action, who states that he periodically advised Watkins’ attorney

of the status of the negotiations to settle Goodwin’s claims

against Howard and Watkins, and advised Watkins of Howard’s

expectation of a contribution from Watkins toward the settlement

payment. (Def.’s Mem. Ex. B.)

Count I alleges a plausible claim for equitable

indemnification.

II. MISREPRESENTATION BY FRAUDULENT CONCEALMENT, FRAUD,
NEGLIGENT MISREPRESENTATION

Count II of the complaint alleges that Howard placed Watkins

in a position of trust and confidence as the Acting Dean of

Student Life and Activities, imposing upon her a duty to disclose

that Goodwin was infected with HIV, that Watkins and Porter had
 -14-

mistreated Goodwin because of his HIV infection and their belief

that he was homosexual, and that Goodwin had requested, but been

refused, an accommodation for his HIV infection. Count II

further alleges that Watkins breached that duty by failing to

disclose those facts, which damaged Howard by subjecting it to

liability in Goodwin’s action. (Compl. ¶¶ 52-57.) Count III of

the complaint alleges that Watkins engaged in constructive fraud

through the same non-disclosures referred to in Count II, and by

informing representatives from Howard’s Office of Human Resources

Management and Office of General Counsel that she recommended not

renewing Goodwin’s contract only because of “behavior problems.”

(Compl. ¶¶ 58-62.) Count IV of the complaint alleges that

Watkins negligently misrepresented to Howard’s Office of Human

Resources Management and Office of General Counsel that the only

illness that Goodwin suffered was his stroke in 1998, and

negligently failed to disclose that Goodwin had requested but

been denied an accommodation as a result of his HIV infection.

(Compl. ¶¶ 63-68.)

Under District of Columbia law, the elements of a claim of

fraudulent concealment are (1) a duty on behalf of the defendant

to disclose to the plaintiff a material fact; (2) the failure to

disclose that fact; (3) an intention to defraud or deceive the

plaintiff; (4) action taken by the plaintiff in justifiable

reliance on the concealment; and (5) damages as a result of the
 -15-

defendant’s concealment. Alexander v. Wash. Gas Light Co., 481

F. Supp. 2d 16, 36-37 (D.D.C. 2006). Similarly, the “essential

elements of common law fraud are: (1) a false representation

(2) in reference to material fact, (3) made with knowledge of its

falsity, (4) with the intent to deceive, and (5) action is taken

in reliance upon the representation.” Fort Lincoln Civic Ass'n,

Inc. v. Fort Lincoln New Town Corp., 944 A.2d 1055, 1074 n.22

(D.C. 2008) (quoting Bennett v. Kiggins, 377 A.2d 57, 59-60 (D.C.

1977)). In addition, “the plaintiff must also have suffered some

injury as a consequence of his reliance on the

misrepresentation.” Chedick v. Nash, 151 F.3d 1077, 1081 (D.C.

Cir. 1998) (citing Dresser v. Sunderland Apartments Tenants

Ass’n, Inc., 465 A.2d 835, 839 (D.C. 1983)). The elements of a

claim of negligent misrepresentation are (1) a false statement or

omission of a fact that a defendant had a duty to disclose; (2)

that the defendant intended or should have recognized that the

plaintiff would be deleteriously affected by reliance on the

misrepresentation; and (3) that the plaintiff reasonably relied

upon the misrepresentation to its detriment. Hall v. Ford

Enter., Ltd., 445 A.2d 610, 612 (D.C. 1982).

Federal Rule of Civil Procedure 9(b) requires a plaintiff to

state with particularity the circumstances constituting fraud or

fraudulent concealment. See Fed. R. Civ. P. 9(b); Firestone v.

Firestone, 76 F.3d 1205, 1211 (D.C. Cir. 1996) (stating that
 -16-

“[p]arties pleading fraudulent concealment must plead with

particularity the facts giving rise to the fraudulent concealment

claim and must establish that they used due diligence in trying

to uncover the facts”) (internal quotation omitted). The

complaint must plead with particularity matters such as the time,

location and content of the false misrepresentations, the

misrepresented fact and what was gained or lost as a result of

the fraud. United States ex rel. Williams v. Martin-Baker

Aircraft Co., 389 F.3d 1251, 1256 (D.C. Cir. 2004) (citing Kowal

v. MCI Communications Corp., 16 F.3d 1271, 1278 (D.C. Cir.

1994)). Requiring a plaintiff to plead fraud with particularity

“discourage[s] the initiation of suits brought solely for their

nuisance value, and safeguards potential defendants from

frivolous accusations of moral turpitude.” Id. (quoting United

States ex rel. Joseph v. Cannon, 642 F.2d 1373, 1386 (D.C. Cir.

1981)).

Watkins argues that Counts II, III, and IV should be

dismissed because the complaint failed to plead fraud or

misrepresentation with particularity. (Def.’s Mem. at 6.)

According to Watkins, “[t]here is not a single false or

fraudulent statement identified, much less where, when, or to

whom it was spoken.” (Def.’s Reply at 5.) Watkins further

argues that Howard did not reasonably rely on her

misrepresentations because “Howard’s lawyers had to ask enough
 -17-

questions to satisfy themselves that her reasons were legally

sufficient and were not retaliatory—if they chose not to, they

cannot claim to have been defrauded.” (Def.’s Reply at 8.)

However, the complaint alleges with particularity facts and

circumstances regarding the false or negligent representations

and omissions made by Watkins to the Office of the General

Counsel and the Office of Human Resources of Howard University in

the complaint. (Pl.’s Opp’n at 18.) It identifies both Watkins’

false statement - - that Goodwin’s contract should not be renewed

because he had “behavior problems” – - and her material omissions

- - namely, that Goodwin was suffering from the medication he was

taking for HIV and that he unsuccessfully requested accommodation

for that problem. While the counts appear to overlap somewhat,

the complaint alleges plausible causes of action of fraud and

misrepresentation, and alleges the elements of fraud with

sufficient particularity to survive Watkins’ motion.

CONCLUSION AND ORDER

Howard’s complaint alleges plausible claims of equitable

indemnity, fraud, and misrepresentation. Therefore, it is hereby

ORDERED that the defendant’s motion [3] to dismiss be, and

hereby is, DENIED.

SIGNED this 27th day of April, 2012.

/s/
RICHARD W. ROBERTS
United States District Judge