Kennedy v. Berkel & Company Contractors, Inc.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

KIMBERLY KENNEDY,

Plaintiff,

v.
Civil Action No. 17-1248 (DLF)
BERKEL & COMPANY CONTRACTORS,
INC., et al.,

Defendants.

MEMORANDUM OPINION

Kimberly Kennedy alleges that her boss, Dwayne Bruce, repeatedly raped and abused her

during her six weeks of employment with Berkel & Company Contractors. She brings twenty-

four counts against Bruce and Berkel, including claims of sex-based discrimination, religious

discrimination, retaliation, sexual harassment, discriminatory termination, and numerous torts.

Before the Court is the defendants’ Motion to Dismiss eighteen of those counts pursuant to

Rule 12(b)(6) of the Federal Rules of Civil Procedure. Dkt. 13. For the reasons that follow, the

Court will grant the motion in part and dismiss seven counts.

I. BACKGROUND

The Court will recount the facts set forth in the complaint, which is presumed truthful at

this stage. Kennedy moved to the District of Columbia in summer 2015 without employment.

Compl. ¶ 7, Dkt. 1. She lived in a homeless shelter while looking for work in the construction

industry. Id. Bruce, whom Berkel employed as a work-site superintendent, hired Kennedy as a

skilled laborer for his work site on August 20, 2015, and she began work that day. Id. ¶¶ 9–13.
Kennedy was the only female of Berkel’s approximately ten employees at the work site. Id.

¶ 17.

In Kennedy’s first days of work, Bruce assigned her to the role of directing traffic,

though all of the male employees were assigned to excavate a foundation. Id. ¶ 23. Kennedy

attempted to assist the other employees with excavation when there was no traffic to direct, but

Bruce told her to find other work. Id. Kennedy then asked if she could join the male employees

because she had experience with excavation, but Bruce denied the request, reasoning that

“women are distracting” and the other employees might be injured. Id. ¶¶ 24–25. Bruce instead

assigned Kennedy to lay asphalt in a secluded area that was out of the other employees’ view and

to clean the trailer he used as his office. Id. ¶ 26. On one occasion during these first days, Bruce

saw Kennedy talking with another company’s construction workers and threatened to fire her if

she spoke with them again. Id. ¶ 27.

After isolating Kennedy from the other workers, Bruce began sexually harassing her. On

a daily basis, he flirted with her, asked her if she was in a relationship, and commented on her

curves and physical appearance. Id. ¶ 29. Kennedy, who is celibate pursuant to her religion,

repeatedly told Bruce that his advances made her uncomfortable and that she is religious and

does not date outside marriage. Id. ¶ 30. But Bruce continued to inquire into Kennedy’s

personal life and at one point asked her to be his girlfriend. Id. ¶ 31. When Kennedy repeated

that she does not date outside of marriage because it is against her religion, Bruce refused to

accept the rejection and claimed that he saw in her eyes that she liked him. Id.

Once when Kennedy was cleaning the trailer alone, Bruce entered and demanded a hug,

which Kennedy refused. Id. ¶ 33. The next day, Bruce hugged Kennedy without her consent

and asked her how it felt. Id. Kennedy responded that the hug made her feel “not good” and

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guilty. Id. But Bruce continued to hug her on a near-daily basis without her consent. Id. ¶ 34.

He sometimes asked her if his hugs made her feel guilty, and she responded that they did because

of her religious beliefs. Id. Kennedy recounts that she felt powerless to stop Bruce because she

feared losing her job and being unable to leave the homeless shelter. Id. ¶ 35.

Bruce’s harassment and assaults soon escalated. Every day, Bruce hugged Kennedy and

rubbed his body against hers. Id. ¶ 37. Several times each day, Bruce approached Kennedy from

behind and rubbed his erect penis on her buttocks. Id. One day, Bruce exposed his penis to

Kennedy and then called her cell phone to ask her about it after she fled. Id. ¶ 40. Another day,

Bruce entered the trailer, grabbed Kennedy’s face, and forcibly kissed her despite her attempt to

escape. Id. ¶ 38. Bruce then gave Kennedy uninvited kisses every day at work. Id. ¶ 39. On

several occasions he put his hands up Kennedy’s shirt and grabbed and kissed her breasts. Id.

On September 23, 2015, Kennedy’s birthday, Bruce told her that he had a present for her

and insinuated with his tongue that he would perform oral sex on her. Id. ¶ 41. A few days later,

Bruce entered the trailer, forcibly kissed Kennedy, unzipped his pants, and repeatedly slapped

Kennedy’s face with his penis. Id. ¶ 42. When Kennedy resisted Bruce’s attempt to force his

penis into her mouth, he became angry and forced her to perform oral sex on him. Id. Bruce

again forced Kennedy to perform oral sex on him on three other days. Id. ¶ 43. On one

occasion, Bruce told Kennedy not to accept a phone call while he was assaulting her because she

was doing her “job.” Id. ¶ 45.

On September 30, Bruce became angry upon seeing Kennedy make small talk with other

Berkel superintendents. Id. ¶ 47–48. Bruce handed Kennedy a final paycheck and told her that

despite previous plans she would not be transferred to the next work site because the other

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superintendents said she was “too soft.” Id. ¶¶ 49–50. When Kennedy began to cry, Bruce told

her that “this is why I don’t like to hire women.” Id. ¶ 49.

Kennedy left the work site but returned later that day, hoping to change Bruce’s mind.

Id. ¶ 52. When Kennedy entered Bruce’s trailer to ask for her job back, Bruce forced his penis

into her mouth and vagina as she cried. Id. ¶ 53. After the rape, Bruce told Kennedy he would

call her later about the job, and she left. Id.

Kennedy was hired by another construction company several days later. Id. ¶ 55. Bruce

told other Berkel employees that the assaults were consensual, and the Berkel employees began

mocking Kennedy as promiscuous when they saw her with her new construction company. Id.

¶ 56.

In the months after her employment at Berkel, Kennedy suffered from severe depression

and suicidal thoughts. Id. ¶ 57. This prevented her from maintaining a job. After leaving the

second construction company, Kennedy was hired by the Laborers’ International Union of North

America as an audit clerk, but she was fired because she could not focus, retain information, or

learn new tasks. Id. ¶ 61. In August 2016, Kennedy’s emotional trauma required hospitalization,

and she was diagnosed with post-traumatic stress disorder and prescribed medication. Id. ¶ 58.

At the time the complaint was filed in June 2017, Kennedy was receiving weekly treatment and

still struggled daily with depression. Id. ¶ 59.

Kennedy’s suit was reassigned to the undersigned judge on December 5, 2017.

II. LEGAL STANDARDS

Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a defendant to move to

dismiss the complaint for failure to state a claim upon which relief can be granted. Fed. R.

Civ. P. 12(b)(6). To survive a Rule 12(b)(6) motion, a complaint must contain factual matter

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sufficient to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007). A facially plausible claim is one 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). This standard does not amount to a specific probability requirement,

but it does require “more than a sheer possibility that a defendant has acted unlawfully.” Id.; see

also Twombly, 550 U.S. at 557 (“Factual allegations must be enough to raise a right to relief

above the speculative level.”). A complaint need not contain “detailed factual allegations,” but

alleging facts that are “merely consistent with a defendant’s liability . . . stops short of the line

between possibility and plausibility.” Iqbal, 556 U.S. at 678 (internal quotation marks omitted).

Well-pleaded factual allegations are “entitled to [an] assumption of truth,” id. at 679, and

the court construes the complaint “in favor of the plaintiff, who must be granted the benefit of all

inferences that can be derived from the facts alleged,” Hettinga v. United States, 677 F.3d 471,

476 (D.C. Cir. 2012) (internal quotation marks omitted). The assumption of truth does not apply,

however, to a “legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678

(quotation marks omitted). An “unadorned, the defendant-unlawfully-harmed-me accusation” is

not credited; likewise, “[t]hreadbare recitals of the elements of a cause of action, supported by

mere conclusory statements, do not suffice.” Id. Ultimately, “[d]etermining whether a

complaint states a plausible claim for relief [is] a context-specific task that requires the reviewing

court to draw on its judicial experience and common sense.” Id. at 679.

When deciding a Rule 12(b)(6) motion, the court may consider only the complaint itself,

documents attached to the complaint, documents incorporated by reference in the complaint, and

judicially noticeable materials. EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624

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(D.C. Cir. 1997). A Rule 12(b)(6) dismissal “is a resolution on the merits and is ordinarily

prejudicial.” Okusami v. Psychiatric Inst. of Wash., Inc., 959 F.2d 1062, 1066 (D.C. Cir. 1992).

III. ANALYSIS

The complaint contains twenty-four counts, and the defendants move to dismiss eighteen

of them. (The other six are claims for sex-based discrimination and retaliation.) The

complaint’s federal questions and the parties’ diversity of citizenship confer subject-matter

jurisdiction on the Court. See Compl. ¶ 1; 28 U.S.C. §§ 1331, 1332(a), 1367(a).

Kennedy’s statutory claims are based on Title VII of the Civil Rights Act of 1964 and the

District of Columbia Human Rights Act. The D.C. Court of Appeals generally interprets the

D.C. Human Rights Act as operating in parallel to Title VII. See, e.g., Estenos v. PAHO/WHO

Fed. Credit Union, 952 A.2d 878, 886 (D.C. 2008) (observing that the D.C. Court of Appeals

“follow[s] cases construing Title VII in interpreting and applying the provisions of the [D.C.

Human Rights Act] . . . to the extent that the acts use similar words and reflect a similar

purpose”). Kennedy sues both Berkel and Bruce under the D.C. Human Rights Act and only

Berkel under Title VII.

A. Religious Discrimination

Kennedy asserts four counts of religious discrimination: (1) hostile work environment

under Title VII; (2) hostile work environment under the D.C. Human Rights Act;

(3) discriminatory termination under Title VII; and (4) discriminatory termination under the D.C.

Human Rights Act. See Compl. ¶¶ 86–93, 101–105, 131–139, 147–150. Both statutes prohibit

an employer from discriminating against an employee on the basis of religion with respect to the

employee’s terms or conditions of employment. 42 U.S.C. § 2000e-2(a)(1); D.C. Code § 2-

1402.11(a). The defendants argue that these counts fail for several reasons.

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 First, the defendants argue that the Title VII counts must be dismissed because Kennedy

failed to exhaust her administrative remedies.1 Defs.’ Mem. at 6–8, Dkt. 13. Title VII requires a

person alleging a violation to file a charge with the Equal Employment Opportunity Commission

(EEOC) before bringing a civil suit. 42 U.S.C. § 2000e-5(f)(1); see also Payne v. Salazar, 619

F.3d 56, 65 (D.C. Cir. 2010) (“Title VII complainants must timely exhaust their administrative

remedies before bringing their claims to court.” (internal quotation marks and alterations

omitted)). The EEOC provides a form for discrimination charges that directs the complainant to

check boxes corresponding to their alleged form(s) of discrimination (race, religion, etc.) and

also asks the complainant to describe the particular details of the charge in the complainant’s

own words. See Dkt. 13-1. Kennedy checked the “religion” box, along with the “sex” and

“retaliation” boxes, but did not describe any specifically religion-based form of discrimination in

the details section. Id. The defendants argue that Kennedy’s failure to present facts concerning

religious discrimination in the details section dooms her Title VII claims.

The exhaustion requirement is not so unforgiving. The requirement “serves the important

purposes of giving the charged party notice of the claim and narrowing the issues for prompt

adjudication and decision.” Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995) (internal

quotation marks and alteration omitted). Because notice is the goal, the exhaustion requirement

“should not be construed to place a heavy technical burden on individuals untrained in

negotiating procedural labyrinths.” Id. (internal quotation marks omitted). Here, Kennedy put

1
Title VII plaintiffs are not required to plead or demonstrate exhaustion in their complaints, see
Jones v. Bock, 549 U.S. 199, 212, 216 (2007), but a defendant may raise exhaustion as an
affirmative defense in a motion to dismiss “when the facts that give rise to the defense are clear
from the face of the complaint,” Smith–Haynie v. District of Columbia, 155 F.3d 575, 578 (D.C.
Cir. 1998). Here, the facts relevant to the exhaustion defense are clear from Kennedy’s EEOC
charge, which is incorporated by reference in the complaint and attached to the motion to
dismiss. See Compl. ¶ 6; Dkt. 13-1.

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the defendants and EEOC on full notice that she alleged religious discrimination when she

checked the box corresponding to religious discrimination. See Greer v. Bd. of Trustees of Univ.

of D.C., 113 F. Supp. 3d 297, 307 n.9 (D.D.C. 2015) (collecting cases for the proposition that

“[i]t is where plaintiffs have neither checked the correct box nor given some sort of notice of the

substance of their claims in the [details section] that courts will dismiss for failure to adequately

exhaust administrative remedies”). And nothing in the details section suggested that Kennedy

was not pursuing a religion-based claim. While Kennedy could have added explanation of the

religion allegation in the details section, explanation is not required.

Next, the defendants argue that the complaint inadequately alleges a hostile work

environment based on religious discrimination. Defs.’ Mem. at 9–10. An employer violates

Title VII and the D.C. Human Rights Act with discriminatory conduct that is “severe or

pervasive enough to create an [objectively and subjectively] hostile or abusive work

environment” and thus “alter[s] the conditions of the victim’s employment.” Harris v. Forklift

Sys., 510 U.S. 17, 21 (1993) (internal quotation marks omitted); see also Barrett v. Covington &

Burling LLP, 979 A.2d 1239, 1245 (D.C. 2009) (applying the Forklift Systems standard to a D.C.

Human Rights Act claim). This is not a “mathematically precise test,” but Forklift Systems

mentions as relevant factors (1) “the frequency of the discriminatory conduct;” (2) “its severity;”

(3) “whether it is physically threatening or humiliating;” (4) “whether it unreasonably interferes

with an employee’s work performance;” and (5) “[t]he effect on the employees psychological

well-being.” 510 U.S. at 22–23.

Kennedy sufficiently alleges that Bruce created a hostile work environment based on her

religion. According to the complaint, Kennedy repeatedly told Bruce that she did not date

outside marriage because of her religious beliefs, yet he repeatedly touched and harassed her

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sexually. See generally Compl. Bruce once mocked Kennedy as “trying to be a minister” when

she refused to date him. Id. ¶ 32. Upon learning that a nonconsensual hug made Kennedy feel

guilty, Bruce hugged her again and asked if it again made her feel guilty. Id. ¶¶ 33–34. After

Kennedy replied that it did because of her religious beliefs, Bruce hugged her on a near-daily

basis. Id. ¶ 34. And if Kennedy’s religious beliefs placed extramarital dating and opposite-sex

hugs off limits, Bruce flagrantly violated those beliefs by rubbing his erect penis on her buttocks.

Bruce did that several times each day. Id. ¶ 37. These egregious violations of Kennedy’s

religious code meet all five factors mentioned in Forklift Systems: they were frequent, severe,

physically threatening and humiliating, an unreasonable interference with Kennedy’s work

performance, and psychologically damaging. And while Bruce’s alleged conduct would have

created a hostile work environment for anyone, religious or not, the complaint allows for the

inference that Bruce’s behavior—accompanied by his mocking of Kennedy’s religious

scruples—was motivated at least partly by Kennedy’s religious beliefs. See 42 U.S.C.

§ 2000e-2(m) (“[A]n unlawful employment practice is established when the complaining party

demonstrates that . . . religion . . . was a motivating factor for any employment practice, even

though other factors also motivated the practice.”); D.C. Code Ann. § 2-1402.11(a) (prohibiting

acts done “wholly or partially for a discriminatory reason”).

Finally, the defendants argue that the discriminatory-termination claims fail on the

grounds that Bruce did not know Kennedy’s specific religion and that the complaint does not

allege a causal link between the termination and religious animus. Defs.’ Mem. at 13–14. The

defendants are wrong to argue that an employer must know an employee’s religion in order to

discriminate against the employee on the basis of religion. An employer undoubtedly violates

Title VII by firing an employee because the employee reads scripture even if the employer does

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not know what scripture the employee reads. See 42 U.S.C. § 2000e(j) (“The term ‘religion’

includes all aspects of religious observance and practice, as well as belief . . . .”).

But the defendants are correct that the complaint does not adequately plead causality

between the termination and religious discrimination. “Under Title VII, . . . the two essential

elements of a discrimination claim are that (i) the plaintiff suffered an adverse employment

action (ii) because of the plaintiff's race, color, religion, sex, national origin, age, or disability.”

Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008). Because “the ordinary rules for

assessing the sufficiency of a complaint apply” to a Title VII motion to dismiss, Swierkiewicz v.

Sorema N.A., 534 U.S. 506, 511 (2002), Kennedy must plead facts with enough specificity to

allow the Court, taking the factual allegations as true, to draw the reasonable inference that she

was fired because of her religion, see Iqbal, 556 U.S. at 678.

The complaint strongly suggests that Kennedy was fired because of her sex and because,

contrary to Bruce’s instructions, she spoke with other Berkel employees. See Compl. ¶¶ 48–49

(After “Bruce observed [Kennedy] interacting with [other employees] and was angry,” he

“handed [Kennedy] a final, handwritten paycheck and stated that he was not transferring her to

another site . . . .”); id. ¶ 49 (“Bruce . . . stated that he was not transferring [Kennedy] to another

site because . . . other superintendents said she was ‘too soft,’ which she understood to be a

reference to her sex. [Kennedy] started crying. Bruce told her ‘this is why I don’t like to hire

women.’”). In contrast, the complaint contains nothing to suggest that Kennedy’s religious

practices or beliefs had anything to do with her termination. Therefore, Kennedy’s

discriminatory-termination counts must be dismissed.

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 B. Quid Pro Quo Sexual Harassment

Sexual harassment can violate Title VII and the D.C. Human Rights Act by effectively

altering an employee’s terms and conditions of employment. Burlington Indus. v. Ellerth, 524

U.S. 742, 752 (1998). Two kinds of sexual-harassment claims are common: those alleging that

the harassment created a hostile work environment and those alleging a quid-pro-quo exchange

of employment benefit for sexual favors. Id. at 751–752. Kennedy pleads both; the defendants

move to dismiss only the quid-pro-quo claims.

An employer is liable for quid-pro-quo harassment “[w]hen a plaintiff proves that a

tangible employment action resulted from a refusal to submit to a supervisor’s sexual demands.”

Id. at 753. When a claim “involves only unfulfilled threats, it should be categorized as a hostile

work environment claim.” Id. at 754. The distinction, in other words, is that quid-pro-quo

harassment involves “threats [that] are carried out,” while hostile-work-environment harassment

involves “offensive conduct in general.” Id. at 751, 753; see also Curry v. District of Columbia,

195 F.3d 654, 659 (D.C. Cir. 1999) (“Courts describe an explicit alteration [of the terms or

conditions of employment] as ‘quid pro quo’ harassment and a constructive alteration as ‘hostile

work environment’ harassment.”).

Kennedy does not allege that Bruce terminated her employment because of a refusal to

submit to his sexual demands; indeed, in the weeks leading up to her termination, Bruce

succeeded in assaulting Kennedy repeatedly, despite her continual efforts to thwart his sexual

demands. Instead, Kennedy alleges that Bruce terminated her employment because she spoke

with other Berkel employees and was “soft.” Compl. ¶ 49. Her sex-discrimination claim is

based on severe and pervasive offensive conduct and is therefore properly categorized as

alleging a hostile work environment. Accordingly, the Court will dismiss the quid-pro-quo

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claims. But it makes no real difference—Kennedy’s sex-based hostile-work-environment

claims, which survive, fully encompass the allegations that compose the quid-pro-quo claims.

See Lutkewitte v. Gonzales, 436 F.3d 248, 260 (D.C. Cir. 2006) (Brown, J., concurring in the

judgment) (describing the difference between hostile-work-environment harassment and quid-

pro-quo harassment and citing Elleth for the proposition that “[o]nce actionable sexual

harassment of either type has been shown . . . the old labels are no longer useful”).

C. Negligence and Intentional Infliction of Emotional Distress

The complaint pleads common-law claims for negligence and negligent hiring and

supervision against Berkel and both intentional and negligent infliction of emotional distress

against Bruce. Compl. ¶¶ 158–164, 165–170, 201–204, 205–210. The defendants argue that the

D.C. Worker’s Compensation Act bars these claims. Defs.’ Mem. at 15–17, 20. The Act

“makes [an] employer liable without fault if [an] employee’s occupational injury or death falls

within the scope of the Act, but as a quid pro quo for such automatic liability, the Act provides

the employee’s exclusive remedy—an administrative remedy—against the employer for injuries

within its reach.” Estate of Underwood v. Nat’l Credit Union Admin., 665 A.2d 621, 630 (D.C.

1995) (citations omitted); see also D.C. Code §§ 32-1503, 32-1504(a). In other words, an

employee cannot file suit to redress an injury that is redressable by the Act.

The defendants’ argument fails because injuries caused by sexual harassment fall outside

the Act’s reach. The Act defines “injury” as “accidental injury or death arising out of and in the

course of employment.” D.C. Code § 32-1501(12). The D.C. Court of Appeals has interpreted

“injury . . . arising out of . . . employment” as occurring only “as the result of a risk involved in

or incidental to the employment.” Estate of Underwood, 665 A.2d at 634. Sexual harassment,

“as a matter of law,” is not “a risk involved in or incidental to employment.” Id. (internal

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quotation marks omitted). Because Kennedy’s injuries do not fall within the Act’s scope, the

Act does not prevent her from seeking redress here.

The defendants also argue that Kennedys’ tort claims fail because they are predicated on

violations of the D.C. Human Rights Act or Title VII, Defs.’ Mem. at 17–20, but this argument

fares no better. It is true that a common-law negligent-supervision claim “may be predicated

only on common law causes of action or duties otherwise imposed by the common law,” and the

common law “did not recognize an employer’s duty to prevent . . . sexual harassment” when

unaccompanied by “independently tortious conduct.” Griffin v. Acacia Life Ins., 925 A.2d 564,

576 & n.31 (D.C. 2007). But Kennedy alleges independently tortious conduct. See Griffin, 925

A.2d at 576 (“The common law . . . imposed on employers . . . [t]he duty to provide a safe place

to work.”). The D.C. Human Rights Act does not “preempt[] or otherwise abolish[] common

law causes of action based on the same set of operative facts” as those underlying a statutory

claim. Griffin, 925 A.2d at 577. An employee may pursue both a D.C. Human Rights Act claim

and “a negligent supervision claim predicated on a battery,” for example, “under a theory that the

employer was negligent in allowing the battery to happen.” Id. That is precisely the theory

Kennedy is pursuing. Likewise, Title VII does not preclude Kennedy’s tort claims. “When, as

here, the victim of a discriminatory act alleges a harm apart from discrimination, Title VII does

not preclude her from suing under a common law tort theory to remedy that distinct injury.”

Boyd v. O’Neill, 273 F. Supp. 2d 92, 96 (D.D.C. 2003). Kennedy’s tort claims are based on

Bruce’s rape and sexual and verbal abuse and Berkel’s failure to provide a safe place to work;

these alleged wrongs are plainly distinct from discrimination.

The defendants resist this conclusion with respect to the intentional infliction of

emotional distress claim on the ground that Kennedy pleaded that Bruce intentionally inflicted

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emotional distress upon her through, “inter alia, his pattern of sexual harassment and repeated

verbal abuse.” Compl. ¶ 202. The defendants argue that this focus on harassment and verbal

abuse prevents the claim from reaching Bruce’s assaults. Defs.’ Reply at 9, Dkt. 15. That is not

so: the complaint explicitly states that its references to sexual harassment and verbal abuse do

not exhaust the bases for the claim (“inter alia” being the key term). Pleading, moreover, is not

“a game of skill in which one misstep by counsel may be decisive to the outcome.”

Swierkiewicz, 534 U.S. at 514. The complaint contains more than enough to adequately allege

an independent claim for intentional infliction of emotional distress.

The claim for negligent infliction of emotional distress must be dismissed without

prejudice, however, because Kennedy concedes that it was improperly pleaded against Bruce

instead of Berkel. See Kennedy Opp’n at 24–25, Dkt. 14.

D. Wrongful Termination

Kennedy alleges common-law wrongful termination on the ground that she was

“terminated because of her sex and religion when she opposed Defendant Bruce’s sexual

advances and harassment.” Compl. ¶ 174. Kennedy was apparently an at-will employee. See

Defs.’ Mem at 20; Kennedy Opp’n at 26 (not contesting the defendants’ claim that Kennedy’s

employment was at-will); Tingling-Clemmons v. District of Columbia, 133 A.3d 241, 249 n.29

(D.C. 2016) (observing that in D.C., “there is a presumption that . . . employment is terminable at

will by any party at any time”). That is usually enough to fell a wrongful-termination claim: “[i]t

has long been settled in the District of Columbia that an employer may discharge an at-will

employee at any time and for any reason, or for no reason at all.” Bereston v. UHS of Delaware,

Inc., 180 A.3d 95, 104 (D.C. 2018) (quotation marks omitted). The D.C. Court of Appeals “has

recognized a designedly narrow exception to this common-law rule, under which an at-will

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employee may have a claim sounding in tort for wrongful discharge if the employer’s sole (or at

least predominant) reason for terminating the employee was the employee’s refusal to break the

law or was in some other respect contrary to a clear mandate of public policy,” id. (internal

quotation marks omitted), but the Court of Appeals has emphasized that courts should consider

arguments invoking this narrow exception only if they “reflect a clear mandate of public policy

. . . that has been officially declared in a statute or municipal regulation, or in the Constitution,”

Rosella v. Long Rap, Inc., 121 A.3d 775, 778 (D.C. 2015) (quotation marks omitted). The Court

of Appeals has also emphasized that “there must be a close fit between the policy thus declared

and the conduct at issue in the allegedly wrongful termination.” Rosella, 121 A.3d at 778

(quotation marks omitted). The public policy that Kennedy invokes is D.C.’s prohibition of

prostitution. See Kennedy Opp’n at 27; D.C. Code §§ 22-2701(a), 22-2701.01(3) (making it

“unlawful for any person to engage in prostitution” and defining prostitution as “a sexual act or

contact with another person in return for giving or receiving anything of value”).

Kennedy’s argument is flawed. First, the complaint alleges that Bruce repeatedly

sexually assaulted Kennedy—hardly the quid-pro-quo exchange contemplated by the D.C.

statute. The complaint therefore fails to allege the required close fit between policy and conduct.

Second, the complaint does not allege that Bruce terminated Kennedy’s employment on the

ground that she refused to “prostitute” herself. See supra Section III.B. The wrongful-

termination claim also fails, therefore, for the same reason that the quid-pro-quo claim fails.

E. Tortious Interference

Kennedy alleges that Bruce tortiously interfered with her business relationship with

Berkel. Compl. ¶¶ 151–157. “A prima facie case of tortious interference with business relations

requires: (1) existence of a valid contractual or other business relationship; (2) the defendant’s

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knowledge of the relationship; (3) intentional interference with that relationship by the

defendant; and (4) resulting damages.” Whitt v. Am. Prop. Constr., 157 A.3d 196, 202 (D.C.

2017) (internal quotation marks and alterations omitted). While the D.C. Court of Appeals’

precedent is inconsistent, it has generally held that “there is no tortious interference claim for at-

will employees in the District of Columbia.” Newmyer v. Sidwell Friends Sch., 128 A.3d 1023,

1040 n.14 (D.C. 2015); see also Metz v. BAE Sys. Tech. Solutions & Servs., 774 F.3d 18, 22–23

(D.C. Cir. 2014) (examining cases and noting inconsistency but concluding that “it is reasonably

clear that the general rule in the District of Columbia is that an at-will employment agreement

cannot form the basis of a claim of tortious interference with contractual relations” (internal

quotation marks omitted)).

The D.C. Court of Appeals reached a conclusion contrary to this general rule in one

recent case, Newmyer v. Sidwell Friends School, in which a school counselor sued the parent of a

student for tortiously interfering with his contract with the school. See 128 A.3d at 1027. The

Court of Appeals concluded that “an at-will employment relationship of the kind that existed [in

the case before it] is a valid and subsisting business relationship for the purposes of a tortious

interference claim.” Id. at 1040. The Court reaffirmed its previous decisions holding that at-will

employment cannot give rise to a tortious-inference claim, id. at 1040 n.14, but said little to

explain what made the difference. The Court did draw one distinction, however: in the case

before it—unlike in previous cases—the tortious-interference claim was not brought “against

third parties affiliated with [the] employer.” Id. In Newmyer, the defendant parent had no

business affiliation with the employer school.

Bruce did have an affiliation with Berkel, in contrast, but Kennedy argues that in a case

preceding Newmyer, the D.C. Court of Appeals left open the possibility of a tortious-interference

16
claim when a plaintiff can “produce[] facts that suggest that her supervisors procured a discharge

of the plaintiff for an improper or illegal purpose.” Kennedy Opp’n at 28 (quoting McManus v.

MCI Communications Corporation, 748 A.2d 949, 958 (D.C. 2000)) (alterations omitted).

Kennedy misreads McManus. The McManus Court granted summary judgment to the

defendants for two reasons: (1) the plaintiff had not showed improper or illegal purpose; and (2)

tortious-interference claims are not available to at-will employees. The Court could not have

been firmer that these were alternative holdings and that a tortious-interference claim was not

available. See id. at 957–58 (“This court never has held that an employee can maintain a suit for

[tortious interference] where her [business relationship] was based on an at-will relationship, and

we do not do so now. However, even were we to afford [the plaintiff] contractual protections

based on her alleged [business relationship] (which we are not willing to do), [the plaintiff] still

could not survive summary judgment on this record. . . . [The plaintiff] could survive a summary

judgment motion on her claims against [the defendants] (if available) only if she produced facts

that suggest that they procured a discharge of the plaintiff for an improper or illegal purpose.”

(internal quotation marks and alteration omitted and emphases added)).

Bruce was employed by Berkel and directly supervised Kennedy. Because that renders

this suit dissimilar to Newmyer and similar to the several cases in which the D.C Court of

Appeals stated that a plaintiff cannot “maintain a suit for [tortious interference] . . . based on an

at-will relationship,” id. at 957, the tortious-interference claim must be dismissed.

F. Equitable Tolling

Kennedy filed her complaint about twenty-one months after Bruce allegedly raped her,

which is outside the limitations period for many of her tort claims. See D.C. Code § 12-301(4)

(setting a one-year limitations period for “libel, slander, assault, battery, mayhem, wounding,

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malicious prosecution, false arrest or false imprisonment”). The defendants move to dismiss six

counts on this basis. See Defs.’ Mem. at 22–24. Kennedy argues that the statute of limitations

should be equitably tolled from her alleged rape on September 30, 2015 to the day she obtained

counsel on September 29, 2015, which would allow the claims.2 Kennedy Opp’n at 31–35.

The D.C. Code tolls a limitations period only if the plaintiff is a minor, imprisoned, or—

relevant here—mentally incapacitated. See D.C. Code § 12-302 (“[W]hen a person entitled to

maintain an action is, at the time the right of action accrues . . . non compos mentis . . . he or his

proper representative may bring action within the time limit[] after the disability is removed.”);

Black’s Law Dictionary (5th ed. 1979) (defining non compos mentis as “[n]ot sound of mind”).

Kennedy asks the Court to join the Ninth Circuit in announcing a judicially-created hardship

exception to limitations periods. Kennedy Opp’n at 32–33. The D.C. Court of Appeals,

however, has been very reluctant to add to the legislature’s three enumerated exceptions with its

own reasons for tolling. See, e.g., Johnson v. Marcheta Investors Ltd. P’ship, 711 A.2d 109, 112

(D.C. 1998) (“District of Columbia law does not recognize the concept of equitable tolling.”);

East v. Graphic Arts Indus. Joint Pension Tr., 718 A.2d 153, 156 (D.C. 1998) (“Limitations

periods . . . must be strictly adhered to by the judiciary. Remedies for resulting inequities are to

be provided by the legislature, not the courts.” (quotation marks and alterations omitted)); id.

(recognizing “two limited exceptions to our generally strict application of statutes of limitations:

the lulling doctrine and the discovery rule” [neither of which has any application here]); Sayyad

2
In support of her equitable-tolling argument, Kennedy asks the Court to consider, in addition to
the complaint, a declaration she attached to her opposition to the motion to dismiss. Kennedy
Opp’n at 32. When deciding a Rule 12(b)(6) motion, however, a court may consider only the
complaint itself, documents attached to the complaint, documents incorporated by reference in
the complaint, and judicially noticeable materials. EEOC v. St. Francis Xavier Parochial Sch.,
117 F.3d 621, 624 (D.C. Cir. 1997). The D.C. Circuit bends that rule for pro se litigants, see,
e.g., Abdelfattah v. DHS, 787 F.3d 524, 529 (D.C. Cir. 2015), but Kennedy has retained counsel.

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v. Fawzi, 674 A.2d 905, 906 (D.C. 1996) (rejecting equitable tolling because it was “bound

by . . . strict adherence to statutes of limitations”); Huang v. D’Albora, 644 A.2d 1, 3 (D.C.

1994) (rejecting an argument because it “boils down to a request that we adopt some sort

of equitable tolling, which we have previously refused to do in regard to general statutes of

limitations”).

But assuming the truth of Kennedy’s allegations, the Court cannot conclude as a matter

of law that Kennedy was not mentally incapacitated for most of the year between the September

30, 2015 rape and her retention of counsel. “The [D.C. Code] does not itself define non compos

mentis, but ‘the phrase non compos mentis generally refers to someone incapable of handling her

own affairs or unable to function in society.’” Smith-Haynie v. District of Columbia, 155 F.3d

575, 580 (D.C. Cir. 1998) (quoting Hendel v. World Plan Executive Council, 705 A.2d 656, 665

(D.C. 1997)). In McCracken v. Walls-Kaufman, the D.C. Court of Appeals held that a genuine

dispute of material fact existed as to the plaintiff’s mental incapacity when she alleged that she

had been unable to “handle ordinary affairs” and “unable to function as a normal person” after

being raped. 717 A.2d 346, 355 (D.C. 1998). “That she may have reported a rape to the police,”

the Court wrote, “does not demonstrate as a matter of law that [the plaintiff] was substantially

aware of her legal rights.” Id.

The situation here is similar. Kennedy alleges that in the months following her weeks of

rape and abuse at Berkel, she “regularly cried” and “suffered from severe depression and suicidal

thoughts.” Compl. ¶ 57. Because of this, she found it “difficult . . . to focus, retain information,

and learn new tasks” and was fired in a new job for that reason. Id. ¶ 61. In August 2016, the

emotional trauma caused Kennedy to be hospitalized and diagnosed with post-traumatic stress

disorder. Id. ¶ 58. She is now no longer able to “work in the construction industry in which she

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had been employed for over 15 years.” Id. ¶ 60. Although Kennedy, like the plaintiff in

McCracken, took some responsive action after allegedly being raped—here in the form of an

EEOC complaint—she alleges that she had trouble performing basic life functions in the

aftermath of being raped and abused. For now at least, these allegations are sufficient to sustain

her claims.

CONCLUSION

For the foregoing reasons, the Court grants in part and denies in part the defendants’

Motion to Dismiss. Dkt. 13. Specifically, Counts 2 and 8 (quid pro quo sexual harassment),

Counts 6 and 12 (religion-based discriminatory termination), Count 13 (tortious interference),

and Count 16 (wrongful termination) are dismissed with prejudice. Count 23 (negligent

infliction of emotional distress) is dismissed without prejudice. The other counts survive. A

separate order consistent with this decision accompanies this memorandum opinion.

________________________
DABNEY L. FRIEDRICH
United States District Judge
Date: July 24, 2018

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