United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 11, 2007 Decided January 22, 2008
No. 06-7161
FADY KASSEM,
APPELLANT
v.
WASHINGTON HOSPITAL CENTER,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 05cv02352)
Brian W. Shaughnessy argued the cause and filed the briefs
for appellant.
Keith J. Harrison argued the cause for appellee. With him
on the brief was Daniel M. Creekman.
Before: ROGERS, GARLAND, and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: Appellant Fady Kassem brought
this diversity action charging his former employer, Washington
2
Hospital Center, with wrongful discharge and intentional
infliction of emotional distress. The district court dismissed
each claim, under Federal Rule of Civil Procedure 12(b)(6), for
failure to state a claim upon which relief can be granted. We
affirm in part and reverse in part.
I
Because the district court dismissed Kassem’s complaint
pursuant to Rule 12(b)(6), the following description of the facts
treats the complaint’s allegations as true and draws all
reasonable inferences in Kassem’s favor. See, e.g., Gilvin v.
Fire, 259 F.3d 749, 756 (D.C. Cir. 2001).
Prior to his discharge in 2003, Kassem worked as a nuclear
medical technologist at Washington Hospital Center (WHC).
WHC had sponsored Kassem, an Australian national, for a work
visa. According to the complaint, Kassem observed and
reported numerous violations of Nuclear Regulatory
Commission (NRC) regulations during his tenure at WHC. The
hospital’s administration, however, ignored his reports and
discouraged him from bringing violations to its attention.
Compl. ¶¶ 14-20.
On July 20, 2003, a serious violation of NRC regulations
occurred at the hospital. Lawrence Dioh, a WHC nuclear
technician, was injected with radioactive dye by another hospital
employee without the knowledge and approval of a physician.
Thereafter, WHC launched a sham investigation intended to
establish that it was Kassem who injected the dye, as retribution
for his previous reporting of regulatory violations. The hospital
fabricated evidence and pressured Kassem to corroborate it.
Compl. ¶¶ 23-24. One member of the hospital’s investigative
team told him that, if he said “‘what they wanted to hear to make
the investigation complete, then he would be able to save his
3
visa and his livelihood and wouldn’t be kicked out of the
country.’” Id. ¶ 24.
Kassem, however, refused to cooperate with the
investigation. “Recognizing that he himself as well as the
Washington Hospital Center had a duty to inform the NRC
accurately of the violations, [Kassem] declined to participate in
[WHC’s] cover-up of its regulatory infractions.” Id. The
“consequence[] of his refusal [was] the termination of his
employment,” id., which took place on August 15, 2003, id. ¶
26. Ten days later, on August 25, WHC “made false statements
about [Kassem] to the NRC with the intent of inducing the NRC
to initiate disciplinary action against” him. Id. ¶ 48. In early
January 2005, the NRC completed its own investigation and
hearing. The Commission dismissed the charges against
Kassem for insufficient evidence and initiated proceedings
against WHC. Id. ¶ 27.
In December 2005, Kassem sued WHC in the United States
District Court for the District of Columbia, invoking the court’s
diversity jurisdiction. Kassem asserted two claims under
District of Columbia law: wrongful discharge and intentional
infliction of emotional distress (IIED).1 WHC responded with
a motion under Rule 12(b)(6), asking the district court to dismiss
Kassem’s complaint for failure to state a claim upon which relief
can be granted.
The district court granted WHC’s motion as to both claims.
The court dismissed the wrongful discharge claim on the basis
of the District of Columbia’s employment-at-will doctrine.
Although the court acknowledged that the District recognizes a
1
Kassem’s original complaint also identified a breach of contract
claim, but his opposition to the motion to dismiss recast the claim as
one for wrongful discharge, and the district court treated it as such.
4
public policy exception to that doctrine, it found the exception
unavailable because the statute that created the public policy
upon which Kassem relied provided its own “‘specific and
significant remedy.’” Kassem v. Wash. Hosp. Ctr., No. 05-2352,
2006 WL 2474098, at *2 (D.D.C. Aug. 25, 2006) (quoting
Nolting v. Nat’l Capital Group, Inc., 621 A.2d 1387, 1390 (D.C.
1993)). The court dismissed Kassem’s IIED claim on the
ground that his allegations were based on “purely occupational
concerns with purely occupational consequences,” which the
court found did not satisfy the elements of the tort of IIED under
D.C. law. Id. at *4.
II
We review de novo a district court’s dismissal of a
complaint under Rule 12(b)(6). Sparrow v. United Air Lines,
Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). In so doing, we
“must accept as true all of the factual allegations contained in
the complaint.” Erickson v. Pardus, 127 S. Ct. 2197, 2200
(2007) (citing Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1965
(2007)). Applying this standard, we affirm the dismissal of
Kassem’s wrongful discharge claim, but reverse the dismissal of
his IIED claim.
A
“It 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.” Adams v. George W.
Cochran & Co., 597 A.2d 28, 30 (D.C. 1991) (citing, inter alia,
Pfeffer v. Ernst, 82 A.2d 763, 764 (D.C. 1951)).2 In Adams,
however, the District of Columbia Court of Appeals recognized
2
Kassem does not dispute that he was an at-will employee of
WHC. See Appellant’s Br. 8-9.
5
a “very narrow” public policy exception to the at-will
employment doctrine: “a discharged at-will employee may sue
his or her former employer for wrongful discharge when the sole
reason for the discharge is the employee’s refusal to violate the
law, as expressed in a statute or municipal regulation.” Id. at 34.
Kassem contends that his suit falls within the Adams public
policy exception because WHC terminated him in retaliation for
his refusal to participate in a sham investigation that violated
NRC regulations. See Pl.’s Opp’n to Mot. to Dismiss at 5-6;
Compl. ¶ 35. Those regulations make it unlawful for licensees
and employees of licensees, among others, to “[d]eliberately
submit to the NRC [or] a licensee . . . information that the
person submitting the information knows to be incomplete or
inaccurate in some respect material to the NRC.” 10 C.F.R. §
30.10(a)(2).
The public policy exception was itself limited in Nolting v.
National Capital Group, Inc., in which the D.C. Court of
Appeals held the exception unavailable “where the very statute
creating the relied-upon public policy already contains a specific
and significant remedy for the party aggrieved by its violation.”
621 A.2d at 1390. As the district court correctly held, Nolting
controls this case. The NRC regulations upon which Kassem
relies for his public policy protection were promulgated pursuant
to the Energy Reorganization Act (ERA), 42 U.S.C. § 5801 et
seq. See Deliberate Conduct by Unlicensed Persons, 63 Fed.
Reg. 1890, 1896 (Jan. 13, 1998). And that Act contains its own
remedy for retaliation against nuclear-safety whistleblowers.
Section 5851 of the ERA provides that an employer may not
“discharge . . . or otherwise discriminate against any employee”
because the employee “notified his employer of an alleged
violation of this chapter” or “refused to engage in any practice
made unlawful by this chapter . . . , if the employee has
identified the alleged illegality to the employer.” 42 U.S.C. §
6
5851(a)(1). “Any employee who believes that he has been
discharged or otherwise discriminated against” in violation of §
5851(a) may file a complaint with the Secretary of Labor within
180 days after the violation. Id. § 5851(b)(1). The filing of a
complaint triggers an administrative process in which the
Secretary must conduct an investigation and issue an order
either providing relief or denying the complaint. See id. §
5851(b)(2)(A). If the Secretary determines that a violation has
occurred, “the Secretary shall order the person who committed
such violation to (i) take affirmative action to abate the
violation, and (ii) reinstate the complainant to his former
position together with the compensation (including back pay)
[and] privileges of his employment.” Id. § 5851(b)(2)(B). The
Secretary may also order the payment of compensatory
damages, costs, and expenses, including attorneys’ fees. See id.
Like the D.C. statute at issue in Nolting, ERA § 5851
provides a “specific and significant remedy for the party
aggrieved by its violation.” Nolting, 621 A.2d at 1390.
Although Kassem insists that “he was not required” to pursue
the § 5851 remedy, Appellant’s Br. 13, Nolting holds that a
plaintiff cannot “eschew the administrative remedy and instead
obtain recovery against the employer on a tort theory of
wrongful discharge under the narrow ‘public policy’ exception
to the employment-at-will doctrine.” Nolting, 621 A.2d at
1387.3
3
For the first time on appeal, Kassem contends that the ERA’s
remedy was effectively unavailable to him because his discharge led
to financial distress and withdrawal of his visa, which in turn caused
him to depart for Australia. Kassem never raised this argument in the
district court, and it is therefore waived. See, e.g., United States v.
Gartmon, 146 F.3d 1015, 1029 (D.C. Cir. 1998); District of Columbia
v. Air Florida, Inc., 750 F.2d 1077, 1084 (D.C. Cir. 1984).
7
Finally, Kassem asserts that the remedy provided by § 5851
cannot displace his wrongful discharge claim because it contains
a “nonpreemption” provision. That provision states that § 5851
“may not be construed to expand, diminish, or otherwise affect
any right otherwise available to an employee under Federal or
State law to redress the employee’s discharge. . . .” 42 U.S.C.
§ 5851(h). But the deficiency in Kassem’s wrongful discharge
claim is not that § 5851 preempts it, but that the District’s own
common law extinguishes it when the statute giving rise to the
public policy at issue contains an alternative remedy -- as § 5851
does here. The district court was therefore correct in dismissing
Kassem’s wrongful discharge claim.
B
“To establish a prima facie case of intentional infliction of
emotional distress [under D.C. law], a plaintiff must show (1)
extreme and outrageous conduct on the part of the defendant
which (2) either intentionally or recklessly (3) causes the
plaintiff severe emotional distress.” Larijani v. Georgetown
Univ., 791 A.2d 41, 44 (D.C. 2002). Characterizing Kassem’s
allegations as “all revolv[ing] around purely occupational
concerns with purely occupational consequences,” Kassem,
2006 WL 2474098, at *4, the district court ruled that a claim of
IIED was unavailable. It is correct that “generally, employer-
employee conflicts do not rise to the level of outrageous
conduct” required to satisfy the first element of an IIED claim.
Duncan v. Children’s Nat’l Med. Ctr., 702 A.2d 207, 211-12
(D.C. 1997). If the conduct at issue is otherwise outrageous,
however, a plaintiff’s “status as an employee does not materially
affect the sufficiency of her complaint.” Larijani, 791 A.2d at
45 n.3; see King v. Kidd, 640 A.2d 656, 677-78 (D.C. 1993)
(stating that a supervisor’s participation in retaliating against an
employee who had complained of sexual harassment supported
an IIED claim because such conduct “cannot be considered
8
merely as an instance of typical ‘employer-employee
conflicts’”); Howard Univ. v. Best, 484 A.2d 958, 986 (D.C.
1984) (upholding an IIED claim based on a supervisor’s sexual
harassment of an employee, while rejecting an IIED claim based
on the supervisor’s interference with the employee’s
professional responsibilities).
In Carter v. Hahn, the D.C. Court of Appeals held that
reporting false information to the police can constitute
outrageous conduct for the purpose of stating an IIED claim.
See 821 A.2d 890, 895 (D.C. 2003). In that case, the defendant
store owner intentionally gave the police false information about
the plaintiff, claiming that she was the person who had cashed
a stopped check at the defendant’s store. No District of
Columbia case has suggested that Carter does not apply in the
employment context. Moreover, many state courts, and federal
courts applying state law, have held that the intentional filing of
a false report about an employee with government authorities
can be sufficiently outrageous to state an IIED claim.4 Indeed,
in a case similar to Kassem’s, the Ohio Supreme Court held that
an employee properly alleged a cause of action for IIED where
4
See, e.g., Gionfriddo v. Town of Cromwell, 2007 WL 1346919,
at *4 (D. Conn. May 7, 2007) (holding that the plaintiff stated an IIED
claim where his employer knowingly made false statements to police,
implicating him in thefts, in retaliation for his complaints regarding
lax security); Caesar v. Hartford Hosp., 46 F. Supp. 2d 174, 180 (D.
Conn. 1999) (holding that a plaintiff stated an IIED claim where her
employer falsely reported misconduct to the state Department of
Public Health “to retaliate against her and jeopardize her profession”);
Taiwo v. Vu, 822 P.2d 1024, 1029-30 (Kan. 1991) (affirming a verdict
for IIED where an employer intentionally made a false report to the
police concerning an employee who had just resigned); Engrum v.
Boise S. Co., 527 So. 2d 362, 365 (La. Ct. App. 1988) (holding that an
employee stated an IIED claim where he alleged that his employer
falsely reported to the sheriff that he had forged a paycheck).
9
his employer had made him the target of a federal investigation
in order to cover up the employer’s own misconduct. See Russ
v. TRW, Inc., 570 N.E.2d 1076, 1082-83 (Ohio 1991). In so
holding, the court rejected the contention that the verdict in the
employee’s favor should be overturned because the actions of
which he complained arose in the context of at-will
employment. Id.; cf. Graham v. Commonwealth Edison Co.,
742 N.E.2d 858, 867-68 (Ill. App. Ct. 2000) (acknowledging
that “courts often hesitate to find a claim for [IIED] in
employment situations,” but finding such a claim properly stated
where the employer, in retaliation for the employee reporting
nuclear safety violations to the NRC, targeted the employee in
a sham investigation in which it intentionally spread false
allegations of his misconduct).
In granting WHC’s motion to dismiss Kassem’s IIED claim,
the district court relied upon the D.C. Court of Appeals’ decision
in Kerrigan v. Britches of Georgetowne, Inc., 705 A.2d 624
(D.C. 1997). In Kerrigan, the plaintiff alleged that his employer
“targeted him for a sexual harassment investigation,
manufactured evidence against him in order to establish a false
claim of sexual harassment, leaked information from the
investigation to other employees, and unjustifiably demoted him
to the position of store manager in order to promote a woman to
his position.” 705 A.2d at 628. Finding that the employer’s
actions fell within the category of “employer-employee conflicts
[that] do not . . . rise to the level of outrageous conduct,” the
Court of Appeals held the plaintiff’s allegations insufficient to
state a claim of IIED. Id. (alteration in original) (internal
quotation marks omitted).
But Kerrigan does not decide this case. Kerrigan did not
involve a false report to government authorities. Rather, all of
the allegations involved acts that took place within the
workplace and that had no consequence other than an adverse
10
employment action (the plaintiff’s demotion). Kassem, by
contrast, does not merely plead intra-workplace mistreatment.
He further alleges that, after WHC fired him from his position,
it intentionally filed a false charge against him with the NRC --
a charge that could have prevented him from working as a
nuclear technologist and subjected him to criminal penalties.
See Compl. ¶¶ 48, 50; see also 10 C.F.R. § 30.64 (providing that
violations of § 30 are subject to criminal penalties). WHC did
so knowing that the charge was false, and with the intention of
“avoid[ing] NRC regulatory action against” the hospital itself.
Compl. ¶ 51. There is nothing in Kerrigan that limits the
applicability of Carter in such circumstances. Accordingly,
Kassem’s complaint cannot be dismissed at the pleading stage.
III
For the foregoing reasons, we affirm the dismissal of the
plaintiff’s wrongful discharge claim, but reverse the dismissal
of his IIED claim.
Affirmed in part and reversed in part.