Ekemezie v. Cvs Pharmacy, Inc.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

BLESSING EKEMEZIE,

Plaintiff,
v.
Civil Action No. 17-367 (TJK)
CVS RX SERVICES, INC.,

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff Blessing Ekemezie commenced this action in February 2017 after she was

terminated from her position as a pharmacist for CVS Pharmacy, Inc., bringing claims of

discrimination under both federal and District of Columbia law. On October 15, 2018, Plaintiff

filed a motion for leave to file a Second Amended Complaint. ECF No. 42. As relevant here,

the proposed amended complaint would supplement the existing claims against Defendant CVS

Rx Services, Inc., with additional facts, as well as add several new claims under federal law, the

District of Columbia Human Rights Act (DCHRA), and both District of Columbia and Virginia

common law. See ECF No. 42-2 (“2d Am. Compl.”). Defendant opposed Plaintiff’s motion in

part, challenging various aspects of the proposed amended complaint as futile. See ECF No. 45

(“Opp’n”).1 The Court will address each of these challenges separately, and for the reasons

explained below, Plaintiff’s motion will be granted in part and denied in part.

1
Defendant also filed a motion for leave to file a surreply, ECF No. 49, which Plaintiff opposed,
ECF No. 50. “[S]urreplies are generally disfavored, and the determination as to whether to grant
or deny leave is entrusted to the sound discretion of the district court.” Banner Health v.
Sebelius, 905 F. Supp. 2d 174, 187 (D.D.C. 2012) (citations omitted). “The standard for
granting . . . leave to file a surreply is whether the party making the motion would be unable to
contest matters presented to the court for the first time in the opposing party’s reply.” United
States v. Sum of $70,990,605, 4 F. Supp. 3d 209, 215 (D.D.C. 2014) (omission in original)
I. Legal Standard

Under Federal Rule of Civil Procedure 15(a)(2), when a plaintiff seeks leave to file an

amended complaint, courts “should freely give leave when justice so requires.” Nonetheless, a

court may deny such a request when, among other limited circumstances, it determines that the

amendment would be “futil[e].” Foman v. Davis, 371 U.S. 178, 182 (1962). An amendment is

deemed futile “if the proposed claim would not survive a motion to dismiss.” Williams v. Lew,

819 F.3d 466, 471 (D.C. Cir 2016) (quoting James Madison Ltd. by Hecht v. Ludwig, 82 F.3d

1085, 1099 (D.C. Cir 1996)).

As relevant here, a defendant may move to dismiss a claim under Federal Rule of Civil

Procedure 12(b)(1) for “lack of subject-matter jurisdiction” and under Rule 12(b)(6) for “failure

to state a claim upon which relief can be granted.” In reviewing a motion under Rule 12(b)(1), a

court need not accept unsupported factual inferences or legal conclusions, but it should “review

the complaint liberally, granting the plaintiff the benefit of all inferences that can be derived

from the facts alleged.” Cole v. Boeing Co., 845 F. Supp. 2d 277, 282–83 (D.D.C. 2012)

(quoting Barr v. Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004)). Similarly, “[t]o survive a

motion to dismiss [under Rule 12(b)(6)], a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” Xia v. Tillerson, 865 F.3d

(quoting Lewis v. Rumsfeld, 154 F. Supp. 2d 56, 61 (D.D.C. 2001)). “A surreply is not justified
to correct ‘an alleged mischaracterization.’” Id. (quoting Lewis, 154 F. Supp. 2d at 61).
Defendant claims that it seeks to file the proposed surreply “to address certain arguments
Plaintiff raised in her Reply, which arguments had either not been raised in Plaintiff’s original
motion or which could not have been anticipated to be raised in Reply.” ECF No. 49 at 2. But
Defendant identifies no such arguments in its motion. Instead, the filing is limited to challenging
alleged mischaracterizations of Defendant’s arguments by Plaintiff and pointing out deficiencies
in Plaintiff’s reply, neither of which are appropriate uses of a surreply. Accordingly,
Defendant’s motion will be denied.

2
643, 649–50 (D.C. Cir. 2017) (internal quotation marks omitted) (quoting Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009)). “Threadbare recitals of the elements of a cause of action, supported by

mere conclusory statements, do not suffice.” Id. at 650 (quoting Iqbal, 556 U.S. at 678).

II. Analysis

A. National Origin Discrimination under 42 U.S.C. § 1981 (Counts I and II) 2

Defendant objects to Plaintiff’s inclusion of references to her national origin in Counts I

and II, which bring discrimination and hostile-work-environment claims under 42 U.S.C. § 1981.

See Opp’n at 3–4; 2d Am. Compl. ¶¶ 152–63 (Count I), 164–70 (Count II). Defendant argues

that claims of discrimination based on national origin are not viable under § 1981. Opp’n at 3–4.

Plaintiff clarified in her reply, however, that she makes no attempt to claim discrimination based

on her national origin. See ECF No. 47 (“Reply”) at 7–8. Rather, she explains that Counts I and

II allege discrimination based on her race and ethnicity and that she only included her nation of

origin—Nigeria—“to clarify where her African/Ibo race originates.” Id. at 7. Given that express

disclaimer, the Court will not strip her proposed amended complaint of any mention of her

national origin, and it will grant her motion to amend as to Counts I and II.

B. Age Discrimination under Title VII (Count III)

Defendant next objects to Plaintiff’s addition of Count III for disparate treatment and

harassment on the basis of age under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq.,

because that statute does not prohibit age discrimination. Plaintiff conceded in response that the

inclusion of Count III was an error. See Reply at 8. Accordingly, Plaintiff’s motion will be

denied with respect to Count III.

2
All references to “Counts” refer to those in Plaintiff’s proposed Second Amended Complaint.

3
 C. Compensatory Damages under ADEA (Counts IV and V)

Defendant also objects to Plaintiff’s inclusion of references to pain and suffering and

emotional distress in Counts IV and V, which set forth claims under the Age Discrimination in

Employment Act (ADEA), 29 U.S.C. § 623 et seq. Though Defendant “does not oppose the

factual amplification of these counts,” it objects to her alleged “request for ‘compensatory’

damages for ‘physical and emotional injuries, including emotional distress, and mental anguish,

humiliation, embarrassment, loss of self-esteem, and anxiety,’” on the ground that ADEA only

permits recovery of lost wages. See Opp’n at 5 (quoting 2d Am. Compl. ¶¶ 193, 203).

The Court agrees that the law is clear on this question. “Monetary remedies under the

ADEA are limited to back wages . . . and liquidated damages.” Comm’r v. Schleier, 515 U.S.

323, 336 (1995); see also Younger v. D.C. Public Schools, 320 F. Supp. 3d 158, 162 (D.D.C.

2018) (“Compensatory damages in cases alleging discrimination because of age can only include

backpay and frontpay and cannot include pain and suffering.”). But Plaintiff does not claim any

particular type of damages in Count IV and Count V, as Defendant insists. She merely repeats

the same requests for “damages,” 2d Am. Compl. ¶ 192, and “compensatory damages,” id. ¶ 201,

that she included in her operative amended complaint. To be sure, she adds factual allegations

that she has suffered a variety of intangible injuries—which Defendant concedes her right to

include, Opp’n at 5—but she never specifically demands damages that are foreclosed under

ADEA. Therefore, her amendments are not futile. Accordingly, Plaintiff’s motion will be

granted with respect to her amendments to Counts IV and V.

D. DCHRA (Counts VI and VII)

In her proposed amended complaint, Plaintiff also includes two new causes of action

under the DCHRA, alleging disparate treatment (Count VI) and harassment and a hostile work

4
environment (Count VII) based on her age, disability, and race. See 2d Am. Compl. ¶¶ 202–11

(Count VI), 212–19 (Count VII). Defendant argues that the Court lacks subject-matter

jurisdiction over these DCHRA claims because none of the purported discriminatory conduct or

the effects of that conduct were alleged to have occurred in the District of Columbia, and thus

that adding these new claims to the complaint would be futile in that they would not survive a

motion to dismiss. See Opp’n at 5–7.

The District of Columbia Court of Appeals has made clear that in order to bring a claim

of discrimination under the DCHRA, the claimant must show that the “discriminatory decision

[was] made, or its effects [were] felt, or both . . . occurred, in the District of Columbia.”

Monteilh v. AFSCME, AFL–CIO, 982 A.2d 301, 305 (D.C. 2009). “It would not be

enough . . . to show that the company is headquartered [t]here or has officers [t]here.” Id. at

304–05; see also Conn v. American Nat’l Red Cross, 149 F. Supp. 3d 136, 150–51 (D.D.C.

2016) (“The DCHRA is not extraterritorial; its does not and cannot secure an end to

discrimination in jurisdictions outside the District of Columbia.” (quoting Cole, 845 F. Supp. 2d

at 284)).

Plaintiff’s proposed second amended complaint does not allege that any discriminatory

conduct took place, or that any of the effects of the alleged discriminatory conduct were felt, in

the District of Columbia. Plaintiff is a resident of Virginia, 2d Am. Compl. ¶ 4, at all relevant

times she worked at a CVS Pharmacy in Virginia, id., and all of the discriminatory conduct she

alleges in her proposed amended complaint took place in Virginia. It appears that the only

connections to the District of Columbia identified in the proposed amended complaint are the

fact that Defendant has stores located in the District of Columbia, id. ¶ 5, and that Plaintiff filed

her EEOC complaint with the District of Columbia office, see id. at 1; ECF No. 45-1

5
(Defendant’s notice of charge of discrimination). As the District of Columbia Court of Appeals

has made clear, those connections are not sufficient. See Monteilh, 982 A.2d at 304–05.

Plaintiff does make references in her proposed amended complaint to a “region-wide

management policy decision to terminate” Defendant’s older pharmacists, 2d Am. Compl. ¶ 105,

but she provides no evidence that a decision to terminate her or discriminate against her in any

respect was made anywhere other than in Virginia, see id. ¶ 135 (noting, as evidence of a pattern

of discrimination, that other individuals with similar characteristics were terminated from the

same CVS location in Virginia). Accordingly, even under the liberal standard afforded plaintiffs

under Rule 12(b)(1), the Court finds that it lacks jurisdiction under the DCHRA to adjudicate

Plaintiff’s claims of discrimination, that Counts VI and VII under the DCHRA would therefore

not survive a motion to dismiss for lack of subject-matter jurisdiction, and that amending the

complaint to add these claims would be futile. Therefore, Plaintiff’s motion for leave to file an

amended complaint will be denied as to the addition of these new counts.

E. Intentional Infliction of Emotion Distress (Count VIII)

Plaintiff’s operative amended complaint already contains a claim of intentional infliction

of emotional distress (IIED), ECF No. 12 ¶¶ 194–203, but Plaintiff now clarifies in her proposed

second amended complaint that she brings this claim under District of Columbia common law,

see 2d Am. Compl. at 62. Defendant objects to this addition, arguing that Virginia law, not

District of Columbia law, should govern Plaintiff’s IIED claim under traditional choice of law

principles. Opp’n at 9–10. And it further argues that, under Virginia common law, Plaintiff has

failed to plead sufficient facts to prove the elements of an IIED claim. Id. at 11–15.

When faced with claims based on state substantive law, federal courts apply the choice-

of-law rules of the forum state—here, the District of Columbia. Oveissi v. Islamic Republic of

6
Iran, 573 F.3d 835, 842 (D.C. Cir. 2009). “To determine which jurisdiction’s substantive law

governs a dispute, District of Columbia courts blend a ‘governmental interests analysis’ with a

‘most significant relationship’ test.” Id. (quoting Hercules & Co., Ltd. v. Shama Rest. Corp., 566

A.2d 31, 40–41 & n.18 (D.C. 1989)). Under the governmental interests analysis, a court must

“evaluate the governmental policies underlying the applicable laws and determine which

jurisdiction’s policy would be most advanced by having its law applied to the facts of the case

under review.” Id. (quoting Hercules, 566 A.2d at 41). “To determine which jurisdiction has the

most significant relationship to a case, a court must consider . . . (1) the place where the injury

occurred; (2) the place where the conduct causing the injury occurred; (3) the domicile,

residence, nationality, place of incorporation and place of business of the parties; and (4) the

place where the relationship, if any, between the parties is centered.” Id. (internal quotation

marks omitted) (quoting Restatement (Second) of Conflict of Laws § 154(2) (1971)).

Given that framework, the Court concludes that Virginia substantive law must apply to

Plaintiff’s IIED claim. As previously noted, all of the alleged discriminatory conduct occurred in

Virginia, Plaintiff is a resident of Virginia, and the parties’ employment relationship was

centered entirely in Virginia. The parties’ only tie to the District of Columbia is the fact that

Defendant operates multiple stores here, but those locations are not involved in this action, and

that fact alone is insufficient to overcome the overwhelming connection this dispute has to

Virginia. Furthermore, Virginia has a strong interest in protecting its citizens from tortious

actions that occur there, as opposed to any interest the District of Columbia has in the extra-

territorial application of its tort law. See Perkins v. Marriott Int’l, Inc., 945 F. Supp. 282, 284

(D.D.C. 1996) (“Maryland’s interest in preventing tortious acts against persons within its borders

. . . is stronger than any interest the District of Columbia might have in extra-territorial

7
application of its law of torts.”). Therefore, Plaintiff’s motion for leave to amend this claim so as

to assert it under District of Columbia common law must be denied.

Defendant also challenges the merits of Plaintiff’s IIED claim under Virginia law and

seeks to dismiss Count VIII entirely. But in doing so, Defendant attempts to litigate matters

beyond the scope of the instant motion. Plaintiff’s operative complaint already states a claim of

IIED. ECF No. 12, ¶¶ 194–203. The only change to that claim Plaintiff makes in her proposed

second amended complaint is the specification of District of Columbia common law. See ECF

No. 42-3 at 74–76. Thus, even as the Court denies Plaintiff leave to make that change, the

substance of the claim remains as pleaded in the operative complaint. The question of whether

the operative complaint sufficiently pleads the elements of an IIED claim is not before the Court.

F. Wrongful Discharge (Count IX)

Finally, Defendant objects to Plaintiff’s proposed addition of Count IX, which states

claims of wrongful discharge in violation of both District of Columbia and Virginia public

policy. 2d Am. Compl. ¶¶ 230–36. Among other challenges, Defendant argues that, for similar

reasons explained above, Virginia law rather than District of Columbia law should govern

Plaintiff’s wrongful discharge claims. Opp’n at 17–18. And Defendant argues that Plaintiff has

failed to adequately plead a claim of wrongful discharge under Virginia law because the only

statute Plaintiff cites in support of that claim was passed after Plaintiff was terminated. Id. at

21–22.

As to Defendant’s first argument, the Court agrees, for substantially the same reasons

stated above, that Virginia law, rather than District of Columbia law, governs Plaintiff’s

wrongful discharge claim. Plaintiff lives in Virginia, she worked and was terminated in Virginia,

and the alleged protected conduct occurred in Virginia. See Lurie v. Mid-Atlantic Permanente

8
Med. Grp., P.C., 787 F. Supp. 2d 54, 60 (D.D.C. 2011) (applying District of Columbia law to

wrongful discharge claim because employment relationship was centered here and the District

had a strong interest in protecting employees working here from wrongful termination).

Virginia law recognizes only three circumstances in which a plaintiff can state a claim of

wrongful discharge from at-will employment in violation of public policy: “(1) [w]hen an

employer violated a policy enabling the exercise of an employee’s statutorily created right”; “(2)

[w]hen the public policy violated by the employer was explicitly expressed in the statute and the

employee was clearly a member of that class of persons directly entitled to the protection

enunciated by the public policy”; and “(3) [w]hen the discharge was based on the employee’s

refusal to engage in a criminal act.” Francis v. Nat’l Accrediting Comm’n of Career Arts &

Scis., Inc., 796 S.E.2d 188, 190–91 (Va. 2017) (citations and internal quotation marks omitted).

Given that Plaintiff’s claim must satisfy one of these three narrow circumstances, the

Court agrees that it would not survive a motion to dismiss under Rule 12(b)(6). Plaintiff relies

on the second circumstance, but the only source of public policy Plaintiff identifies in her

proposed amended complaint is a Virginia Board of Pharmacy regulation prohibiting pharmacies

from “requir[ing] a pharmacist to work longer than 12 continuous hours in any work day” and

instructing that “a pharmacist working longer than six continuous hours shall be allowed to take

a 30-minute break.” 18 Va. Admin. Code § 110-20-110(B) (2018). Plaintiff asserts that she was

fired because she complained about her long hours and thereby implied that Defendant was

violating that regulation. See 2d Am. Compl. ¶¶ 235–36. But Defendant points out that the

regulation did not come into effect until February 8, 2017, well after Plaintiff was fired on

September 12, 2015. See 33 Va. Reg. Regs. 1136 (Jan. 9, 2017). Accordingly, Plaintiff cannot

rely on that provision to state a claim of wrongful discharge. Since Plaintiff has pointed to no

9
other source of Virginia public policy that would support such a claim, the addition of Count IX

would be futile, and Plaintiff’s request to add it to her complaint must be denied.

III. Conclusion and Order

For the foregoing reasons, it is hereby ORDERED that Plaintiff’s motion for leave to file

a second amended complaint, ECF No. 42, is GRANTED IN PART and DENIED IN PART.

Specifically, leave to amend is DENIED with respect to Plaintiff’s proposed amendment to

Count VIII and the additions of Count III, Count VI, Count VII, and Count IX. Leave to amend

is GRANTED with respect to all of her other proposed changes. In addition, Defendant’s

motion for leave to file a surreply, ECF No. 49, is DENIED.

It is further ORDERED that Plaintiff shall file her proposed second amended complaint,

as modified consistent with this opinion, no later than February 1, 2019. Defendant shall file a

responsive pleading within 21 days from the filing of Plaintiff’s second amended complaint.

SO ORDERED.

/s/ Timothy J. Kelly
TIMOTHY J. KELLY
United States District Judge

Date: January 25, 2019

10