Duncan v. Children's National Medical Center

RUIZ, Associate Judge,

dissenting in part:

A majority affirms dismissal of Duncan’s claim for wrongful termination based on breach of an employment agreement. I disagree. The complaint, although not a model of clarity, sets out a claim based on breach of an employment contract sufficient to meet the minimal requirements of notice pleading. Further, if the allegations in the complaint and inferences therefrom are construed in the light most favorable to Duncan, as they must be, the complaint states a claim that the Pregnancy and Radiation Plan constituted an agreement between CNMC and Duncan and that Duncan’s termination was in breach of CNMC’s obligations to Duncan under that employment agreement.

Duncan’s wrongful termination count alleges that CNMC failed to adhere to its Pregnancy and Radiation Plan, a copy of which she was provided, that governed situations in which pregnant employees may be exposed to radiation. The complaint quotes from the Plan in a number of places. The complaint alleges that the Plan declared a general policy:

It is the policy of Children’s Hospital National Medical Center to ensure that all practical measures are taken to ensure that the permissible dose of ionizing radiation to the embryo/fetus is not exceeded ruing [sic] the entire period of gestation. Further, it is the policy of CHNMC to-*214inform female radiation workers of the risks associated with exposrue [sic] to ionizing radiation involved uring [sic] pregnancy and of their options to continue employment. ... In addition, the policy should assist the employee by preventing unnecessary conflict or presure [sic] in the prvacy [sic] of the family.

(Emphasis added.)

Pursuant to that policy, the complaint alleges that the Plan requires CNMC to take specific preventive measures:

1.Once the supervisor has received notification of a radiation worker’s pregnancy, a pregnancy file will be started. The Radiation Safety Office, along with the individual will review the historical radiation records of the pregnant radiation worker....
3. The Radiation Safety Office and the supervisor will closely monitor the monthly radiation exposure records for this individual to insure that they are . minimal and that the cumulative exposure stays below 125 mrem during the gestation period.
The worker will be issued a TLD monitoring badge to be work [sic] at all times at waist level under the apron, in addition to their regular film badge, during duties performed in direct exposure areas.

The complaint alleges that CNMC “ignored” these safety precautions. Specifically, the complaint alleges that Duncan was not provided with a “badge” to monitor her exposure to radiation and that instead of monthly monitoring of Duncan’s radiation exposure, as required, her exposure was to be monitored only in three-month intervals.

The complaint further alleges that under the Pregnancy and Radiation Plan a pregnant employee exposed to radiation “will be responsible for making the decision of one of the following options”:

1. Worker remains on staff and assumes normal duties. These duties are subject to the above conditions.
2. Worker can request to be transferred to another department within the hospital if available.
3. Worker can apply for a Leave of Absence.
4. Worker may resign her position from the hospital

According to the complaint, Duncan requested a transfer to another department (the second option), but CNMC “refused to comply with the request.” Duncan could not choose the first option, continuing with her normal duties in the Blood Bank, because of the danger and stress caused by “unknown factors regarding the radiation exposure,” as a result of the lack of monthly monitoring and CNMC’s refusal to inform Duncan of the results of its internal investigation. Duncan’s complaint also explains that she did not choose the third option, applying for a leave of absence, because of the financial hardship it would cause her family and because if she had taken leave early in her pregnancy, she would have exceeded her available medical and family leave and been terminated as a result. The complaint alleges that that, indeed, is what occurred when CNMC terminated Duncan once her available leave expired after CNMC had involuntarily placed her on family leave.

An at-will employee may be discharged “at any time and for any reason, or for no reason at all,” Adams v. George W. Cochran & Co., 597 A.2d 28, 30 (D.C.1991), “subject, of course, to the caveat that an employer may not discharge an employee for a reason that has been made unlawful by a statute specifically applicable to the employer-employee relationship.” Carl, supra, 702 A.2d 159, 162 n. 1. The District of Columbia recognizes that an “implied contract may arise from the language of an employee handbook or manual.” Smith v. Union Labor Life Ins. Co., 620 A.2d 265, 269 (D.C.1993); see also, Sisco v. GSA Nat’l Capital Fed. Credit Union, 689 A.2d 52, 55 (D.C.1997). Interpretation of a contract is a question of law unless it is dependent on extrinsic evidence or the credibility of extrinsic evidence. See 1010 Potomac Associates v. Grocery Mfrs. of America Inc., 485 A.2d 199, 205 (D.C.1984). Concomitantly, a contractual writing “must be interpreted as a whole, giving a reasonable, lawful, and effective meaning to all its terms.” Id.; Re*215STATEMENT (SECOND) OF CONTRACTS § 202(2) (1981). In the context of an employee policy or handbook, this court looks to “both the terms of the manual and the manner of its distribution” to help interpret it and determine whether the at-will presumption is overcome and a jury issue presented. Sisco, supra, 689 A.2d at 55.

The complaint filed in this case provides limited excerpts of the Pregnancy and Radiation Plan and, according to the complaint's wrongful termination count, CNMC “failed to adhere to the terms and conditions of the Pregnancy Policy and Radiation Plan” in dealing with Duncan’s concerns over her exposure to radiation while pregnant, and as to her subsequent termination. As the majority recognizes, the excerpts from the Pregnancy and Radiation Plan provided in the complaint are insufficient for this court to conclude, as a matter of law, that the Plan did not create contractual obligations on the part of CNMC to Duncan. Having assumed favorably to Duncan that a contract existed, however, the majority reaches the opposite conclusion with respect to the question whether Duncan’s termination was in breach of the alleged agreement. I believe it similarly is impossible to conclude on the basis of the complaint alone that Duncan’s termination did not breach the contract, and that, therefore, Duncan’s claim should be dismissed. To the contrary, reading the complaint as a whole and drawing all favorable inferences for Duncan, the complaint can be construed as alleging that Duncan’s termination was a result of CNMC’s breach of its employment contract with Duncan, embodied in the Pregnancy and Radiation Plan, which obliges CNMC “to ensure that the permissible dose of ionizing radiation to the embryo/fetus is not exceeded.” CNMC’s breach consisted of its failure to monitor Duncan’s radiation exposure so as to assure her of the safety of continuing in the Blood Bank and to provide another option that, in the words of the Plan, would “assist [Duncan] by preventing unnecessary conflict or presure [sic] in the prvacy [sic] of the family.” CNMC’s breach compelled Duncan, after her transfer request was denied, to stay at home in order to avoid exposing herself to unmonitored and apparently unlimited levels of radiation in the Blood Bank to which she had been reassigned. That action, in turn, led to CNMC’s decision to terminate Duncan once her family and sick leave had expired.

The majority concludes, on the basis of the limited excerpts in the complaint, that CNMC satisfied whatever contractual obligations it had so long as Duncan was able to exercise one of the first three options set out in the Plan (staying on the job, requesting a transfer, or requesting a leave of absence). With respect to the option Duncan chose, transfer to another department, the majority summarily concludes that Duncan got all the contract gave her: a chance to make a request. Because Duncan did not exercise another option, taking a leave of absence, the majority concludes that she cannot claim that CNMC breached the contract. See ante at 213.

The majority’s interpretation of the contract and its inferences from the allegations in the complaint are flawed in significant respects. First, to conclude that CNMC had to provide only one option to the employee goes against the express Plan language alleged in the complaint that it is the employee who has the “responsibility for making the decision” among the options. That language strongly suggests that it is the employee who is to have a choice among alternative options, and not, as the majority concludes, that CNMC may restrict the employee’s options. At a minimum, the language is ambiguous and requires a contextual reading which, in this case, includes the Plan’s expressed policy to “ensure” the safety of pregnant workers exposed to radiation. Further, consideration of extrinsic evidence as to how CNMC has interpreted and implemented the Plan may be required before a sound interpretation of the contract can be reached.

Second, the complaint alleges that Duncan exercised the second option and requested a transfer. With respect to that contractual option, the majority concludes that although Duncan had the right to “request,” CNMC had no obligation to grant her request. The right to request, of course, is no right at all and hardly the stuff of which contracts are *216made. The majority’s odd interpretation is reached in a vacuum, without reference to the Plan’s broadly-stated policy, without having seen the alleged contract in its entirety, and without any knowledge of how CNMC may have interpreted and implemented its obligations in other situations where employees have requested a transfer. Instead, the majority simply makes the “obvious inference” that the decision whether to transfer Duncan “vested within the business judgment of CNMC.” That inference is contrary to our charge to make inferences in favor of Duncan’s claim.

Third, the complaint is silent on the reason for CNMC’s denial of Duncan’s request for transfer, but simply states that CNMC “refused to comply.” As the majority acknowledges, the complaint does not state whether CNMC’s refusal to grant Duncan’s request was for a business reason, no reason or in order to force Duncan out. The majority infers from that silence—again unfavorably to Duncan’s claim—that CNMC’s refusal must have been for a good-faith business reason.

Finally, the majority’s conclusion that Duncan “conceded” that she did not avail herself of the option to take a leave of absence is contradicted by the complaint. Duncan specifically alleges that she did not have enough available sick and family leave to see her through the remainder of her pregnancy. Even though Duncan did not choose to take family or sick leave during her pregnancy, CNMC involuntarily placed her on family leave and, according to the complaint, terminated Duncan once her leave time expired because she was absent without leave. In light of that allegation, the only inference favorable to Duncan is that she would have been similarly terminated if she had requested a leave of absence without having the sick or family leave necessary to cover the entire period. Otherwise, instead of terminating Duncan once her leave was used up, as alleged, CNMC would have involuntarily placed her on unpaid leave, just as it had previously involuntarily placed her on family leave.

CNMC had been put on notice by Duncan’s complaint of the nature of her contract-based wrongful termination claim. Construing all inferences in the light most favorable to Duncan and assuming all her allegations to be true, it cannot be said that Duncan could prove no set of facts in support of her claim. It may be that after some discovery and additional submissions, the undisputed facts would support a motion for summary judgment by CNMC. To dismiss the complaint at this preliminary stage, however, is to deprive the plaintiff of an opportunity to prove her claim. I would reverse in part the trial court’s dismissal of Duncan’s complaint and remand for proceedings to determine whether the Pregnancy and Radiation Plan constitutes an employment contract, and if so, whether CNMC’s breach of its obligations to Duncan under that contract resulted in her termination.