Carson v. Sim

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)
RODNEY CARSON, )
)
Plaintiff, )
)
v. ) Civil Action No. 04-1641 (RWR)
)
WILLIAM SIM et al., )
)
Defendants. )
)

MEMORANDUM OPINION AND ORDER

Plaintiff Rodney Carson brings this action against his

former employer, the Potomac Electric Power Company (“Pepco”) 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.
 -2-

BACKGROUND

Carson, a black male born in 1963, worked at Pepco 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 Pepco 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.)

Pepco 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.) Pepco 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 Pepco discriminated against him and

subjected him to a hostile work environment. (Carson Aff. ¶ 35.)
 -3-

Carson alleges that three days after he filed that complaint, he

was retaliated against by Pepco 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 Pepco 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.

* * *
 -4-

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, Pepco

terminated his employment in 2006 in retaliation for complaining

about the discrimination and the hostile work environment and

insisting that Pepco 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 Pepco 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
 -5-

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 Sim1; 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

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. 1986); Maib v. F.D.I.C., Civil Action No. 09-1261
(RWR), 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).
 -6-

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, 129 S. Ct. 1937, 1949 (2009) (citing Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 570 (2007)). The

complaint must be construed in the light most favorable to the
 -7-

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 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,” 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)).

I. 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

Pepco 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 Pepco 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
 -8-

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

“trivializ[ing] 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.
 -9-

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

incidents 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

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.
 -10-

“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 Pepco 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

(citing Swierkiewicz v. Sorema N. A., 534 U.S. 506, 508 (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
 -11-

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 Pepco 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 Pepco breached

his employment contract, as codified in the collective bargaining

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 Pepco 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.
 -12-

agreement (“CBA”), in three ways. He claims Pepco 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 pre-

empted 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 (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
 -13-

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 (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 (1957) and Avco Corp.

v. Aero Lodge No. 735, 390 U.S. 557, 560 (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

(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 (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
 -14-

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 plaintiff’s 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

Pepco, “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
 -15-

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), 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 VI will be

dismissed.
 -16-

IV. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

In Count VII, Carson alleges that Pepco, “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

Pepco, 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.
 -17-

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
 -18-

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 Pepco, 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, 359 N.E.2d 1347, 1350 (N.Y. 1976)).

A claim for the tort of intentional infliction of emotional

distress falls within the Act’s coverage. See Tatum v. Hyatt
 -19-

Corp., 918 F. Supp. 5, 8 (D.D.C. 1994) (dismissing the

plaintiff’s 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

plaintiff’s workplace injuries); Ramey v. Potomac Elec. Power

Co., 468 F. Supp. 2d 51, 55-56 (D.D.C. 2006) (dismissing the

plaintiff’s 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

Pepco, 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
 -20-

claim ambiguous. Carson alleges that Pepco 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
 -21-

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 (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

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).
 -22-

Fingerhut v. Children’s Nat’l Med. Ctr., 738 A.2d 799, 802, 807

(D.C. 1999) (reversing dismissal of the plaintiff’s 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 Pepco 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
 -23-

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 ‘[c]omplainants

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 unresolved5 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 (2002) “has, on the whole, been

understood to . . . bar [unexhausted claims of retaliation based

on] discrete acts occurring after the time period, after the

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).
 -24-

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 plaintiff’s 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.
 -25-

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 Pepco 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 Pepco denied Carson in October 2003 are

dismissed.

SIGNED this 22nd day of April, 2011.

/s/
RICHARD W. ROBERTS
United States District Judge