Robertson v. District of Columbia ( 2022 )


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    DISTRICT OF COLUMBIA COURT OF APPEALS
    No. 19-CV-567
    MARGIE E. ROBERTSON, APPELLANT,
    V.
    DISTRICT OF COLUMBIA, et al., APPELLEES.
    Appeal from the Superior Court
    of the District of Columbia
    (CAB-005617-18)
    (Hon. John M. Campbell, Trial Judge)
    (Submitted September 24, 2020                         Decided February 17, 2022)
    Margie E. Robertson, pro se.
    Karl A. Racine, Attorney General for the District of Columbia, Loren L.
    AliKhan, Solicitor General, Carl J. Schifferle, Acting Deputy Solicitor General at
    the time of submission, and Jacqueline R. Bechara, Assistant Attorney General at
    the time of submission, were on the brief for appellees.
    Before GLICKMAN, THOMPSON *, and DEAHL, Associate Judges.
    *
    Judge Thompson was an Associate Judge of the court at the time of
    submission. Although her term expired on September 4, 2021, she will continue to
    serve as an Associate Judge until her successor is appointed and qualifies. See
    
    D.C. Code § 11-1502
     (2012 Repl.). She was appointed on October 4, 2021, to
    perform judicial duties as a Senior Judge. See 
    D.C. Code § 11-1504
    (b)(3) (2012
    Repl.). She will begin her service as a Senior Judge on a date to be determined
    after her successor is appointed and qualifies.
    (continued…)
    2
    THOMPSON, Associate Judge: In July 2017, while she was a probationary
    employee     of   the   District   of   Columbia   Courts   (the   “D.C.   Courts”),
    plaintiff/appellant Margie E. Robertson was terminated from her position as a
    supervisor in the Superior Court’s Warrants and Special Proceedings Division.
    She responded by filing suit against defendants/appellees the District of Columbia,
    the D.C. Courts, and D.C. Courts’ employees Daniel Cipullo, Yvonne Martinez-
    Vega, Belinda Carr, Alicia Shepard, Anne Wicks, James McGinley, and Tiffany
    Adams-Moore. Her Amended Complaint alleged inter alia (1) that she was subject
    to discrimination, retaliation, and, ultimately, termination based on her race
    (African-American), gender, age (60+), and dark skin, all in violation of the
    District of Columbia Human Rights Act of 1977 (the “DCHRA”) 1; (2) that her
    termination violated Title VII of the Civil Rights Act of 1964 (“Title VII”) 2; (3)
    that the defendants defamed her and inflicted emotional distress through statements
    about her they made to potential employers and former coworkers; (4) that she was
    wrongfully terminated in violation of public policy; and (5) that defendants
    conspired to terminate her employment. In this appeal, she contends that the
    (…continued)
    1
    See D.C Code §§ 2-1401.01 to 2-1431.08 (2016 Repl. & 2021 Supp.).
    2
    See 42 U.S.C §§ 2000e to 2000e-l7.
    3
    Superior Court erred in granting defendants’ motion to dismiss. 3 For the reasons
    that follow, we affirm the judgment of the Superior Court, including its
    determination that the DCHRA affords appellant no remedy for the claims she has
    raised.
    I.
    Appellant alleges that beginning in March 2017, defendant Carr, the
    Superior Court’s Branch Chief of Special Proceedings, began to pressure appellant
    to intimidate and bully her own staff, and that when appellant refused, Carr began
    to bully her. Appellant, who had been employed by the D.C. Courts for only seven
    months at the time, responded by filing an internal Equal Employment Opportunity
    (“EEO”) complaint with defendant Adams-Moore, the D.C. Courts EEO Officer.
    Appellant amended her internal complaint on July 24, 2017, to add allegations
    against defendant Cipullo, then-Director of the Superior Court Criminal Division;
    defendant Martinez-Vega, Deputy Director of the Criminal Division, and
    defendant Shepard, Branch Chief. Three days later, appellant received an email
    3
    The Amended Complaint also alleged a violation of the Age
    Discrimination in Employment Act of 1967, 29 U.S.C. §§ 62l to 634 (the
    “ADEA”) and asserted a breach of contract claim, but appellant has not assigned as
    error the dismissal of those claims.
    4
    from defendant Cipullo transmitting a letter informing her that she was terminated.
    The termination notice stated that appellant had failed to demonstrate satisfactory
    performance during her probationary period. Thereafter, appellant filed complaints
    with the federal Equal Employment Opportunity Commission (the “EEOC”) and
    with the District of Columbia Office of Human Rights (“OHR”). By letter dated
    October 12, 2017, she received from the EEOC a notice dismissing her complaint
    and notifying her of her right to file suit under the statutes enforced by the EEOC
    (including Title VII and the ADEA). OHR dismissed her complaint for lack of
    jurisdiction on March 20, 2018. Appellant filed her lawsuit on August 7, 2018. 4
    Ruling on defendants’ motion to dismiss, the Superior Court determined that
    the Amended Complaint failed to state a claim upon which relief could be granted.
    As noted above, appellant challenges all aspects of the court’s ruling except for its
    dismissal of her ADEA and breach of contract claims. Below, we address each
    portion of the Superior Court’s rationale for dismissal. Our review of the Superior
    4
    In her reply brief, appellant asserts that her Amended Complaint was
    primarily about retaliation, and she emphasizes the “temporal proximity” between
    her protected activity (i.e., her having expanded the scope of her internal EEO
    complaint) and her termination, as well as the absence of any “legitimate mentions
    of performance issues” prior to her filing (and thereafter amending) her internal
    complaint.
    5
    Court’s ruling granting defendants’ motion to dismiss is de novo. Grimes v.
    District of Columbia, 
    89 A.3d 107
    , 112 (D.C. 2014).
    II.
    A.
    In dismissing appellant’s DCHRA discrimination and retaliation claims, the
    Superior Court found that it is “established law” that the DCHRA is inapplicable to
    employees of the D.C. Courts. The court relied on Mapp v. District of Columbia,
    
    993 F. Supp. 2d 26
    , 28 (D.D.C. 2014) (holding that the broad power the DCHRA
    gives District of Columbia executive agencies to remedy discrimination in all
    aspects of employment “fatally conflicts” with the 1970 District of Columbia Court
    Reorganization Act (the “Court Reorganization Act” 5) and the 1973 District of
    Columbia Home Rule Act (the “Home Rule Act” 6)); see also Cornish v. District of
    Columbia, 
    67 F. Supp. 3d 345
    , 366 (D.D.C. 2014) (agreeing that “[t]he D.C. City
    5
    Pub. L. No. 91-358, Title I, 
    84 Stat. 473
    , codified at 
    D.C. Code § 11-101
    et seq. (2012 Repl.).
    6
    Pub. L. 93-198, 
    87 Stat. 774
    , codified at 
    D.C. Code § 1-201.01
     et seq.
    (2016 Repl.).
    6
    Council may not regulate matters covered by the Reorganization Act, which
    expressly reserves management of personnel policies to the [D.C. Courts] Joint
    Committee [on Judicial Administration,]” quoting Mapp, 993 F. Supp. 2d at 28
    (internal quotation marks omitted)). 7
    This court has not previously addressed whether the DCHRA applies to the
    D.C. Courts. Considering that issue for the first time in this case, we hold that it
    does not, i.e., that the DCHRA does not provide an employment-discrimination
    remedy for D.C. Courts employees.
    As the courts did in Mapp and Cornish, we begin our analysis with the
    language of the Court Reorganization Act and the Home Rule Act. The Court
    Reorganization Act established the District of Columbia Court of Appeals and the
    Superior Court of the District of Columbia as components of “a wholly separate
    court system designed primarily to concern itself with local law and to serve as a
    7
    Mapp was a former probation officer for the Superior Court who alleged
    multiple counts of employment discrimination in violation of the DCHRA. Mapp,
    993 F. Supp. 2d at 27. Cornish asserted causes of action for hostile work
    environment and disparate treatment based on personal appearance in violation of
    the DCHRA, based on allegations about her treatment during her tenure as a
    program specialist in the Superior Court’s Paternity and Child Support Branch.
    Cornish, 67 F. Supp. 3d at 348-49, 364.
    7
    local court system for a large metropolitan area.” Palmore v. United States, 
    411 U.S. 389
    , 408 (1973). The Court Reorganization Act also established the Joint
    Committee on Judicial Administration (the “Joint Committee”), conferring on it
    “responsibility within the District of Columbia court system for . . . [g]eneral
    personnel policies, including those for recruitment, removal, compensation, and
    training” and for “other policies and practices of the District of Columbia court
    system.”     
    D.C. Code § 11-1701
    (b)(1), (9).       The Reorganization Act further
    specified that “[a]ppointments and removals of court personnel shall not be subject
    to the laws, rules, and limitations applicable to District of Columbia employees.”
    
    D.C. Code § 11-1725
    (b). As we have previously observed, “[t]hese provisions,
    among others, manifest Congress’s overall intent to vest ‘final authority’ over the
    operations of the D.C. Courts in the Chief Judges and the Joint Committee.”
    Martin v. District of Columbia Courts, 
    753 A.2d 987
    , 992 (D.C. 2000).
    In enacting the Home Rule Act, Congress mandated that the District of
    Columbia court system “shall continue as provided under the . . . Court
    Reorganization Act,” “subject to . . . [D.C. Code] § 1-206.02(a)(4).” 8 
    D.C. Code § 1-207.18
    (a).    Section 1-206.02(a)(4) states that the Council of the District of
    Columbia (the “Council”) “shall have no authority to . . .             [e]nact any act,
    8
    Section 1-206.02 is entitled “Limitations on the Council.”
    8
    resolution, or rule with respect to any provision of Title 11 (relating to organization
    and jurisdiction of the District of Columbia courts).”
    The Mapp court relied on the foregoing provisions to conclude that, under
    the “plain and unambiguous” statutory language, the Council “may not [including
    through the DCHRA] regulate matters covered by the Reorganization Act, which
    expressly reserves management of [D.C. Courts] personnel policies to the Joint
    Committee[.]” 993 F. Supp. 2d at 28. The court reasoned that a holding that the
    DCHRA applies to the D.C. Courts “would permit regulation of court personnel by
    the Office and Commission on Human Rights” through their broad power under
    
    D.C. Code § 2-1411.03
     “to receive, review, investigate, and mediate employment
    discrimination claims” and “to remedy discrimination in all aspects of
    employment” in the District, and would “fatally conflict[]” with the Reorganization
    and Home Rule Acts. 
    Id.
     9
    9
    The Mapp court specifically rejected the argument that § 1-
    206.02(a)(4) merely “limits the prohibition on [C]ouncil action to regulations
    regarding organization and jurisdiction” of the D.C. Courts, id. at 29, reasoning
    that the argument “is defeated by the absence of any limiting language in the
    [Home Rule] statute,” id. at 28. The court acknowledged that the prohibition in
    § 1-206.02(a)(4) refers in a parenthetical to Title 11 as “relating to organization
    and jurisdiction of the District of Columbia courts[,]” but cited the holding of other
    courts that “‘relating to’ parentheticals are ‘descriptive and not limiting.’” Id. at
    29. We express no view as to whether the Mapp court’s analysis on this point is
    correct.
    9
    We have no difficulty agreeing with the Mapp court that because the
    DCHRA gives the Executive Branch “broad power [under the DCHRA] to remedy
    discrimination,” Mapp, 993 F. Supp. 2d at 28, permitting D.C. Courts employees to
    seek    remedies   for   alleged   employment-related     discrimination    through
    administrative complaints filed with OHR would be inconsistent with the Joint
    Committee’s plenary power with respect to court-system personnel policies and
    practices. 10
    10
    And indeed neither the DCHRA nor OHR’s operating procedures make
    any provision for an administrative complaint process or remedy with respect to
    any personnel practices by the D.C. Courts. The statute provides for the Mayor to
    make “[t]he final administrative determination” in matters involving administrative
    complaints alleging violations of the DCHRA by “District of Columbia
    government agencies, officials and employees.” 
    D.C. Code § 2-1403.03
    (a). The
    Commission on Human Rights — which the OHR website describes as “an agency
    within [OHR] that adjudicates private sector discrimination complaints brought
    under the [DCHRA]” — may order private-sector respondents to take “affirmative
    action” to remedy unlawful discriminatory practices, “including but not limited to”
    hiring, reinstating, or upgrading an employee who has been the victim of
    discrimination. 
    D.C. Code § 2-1403.03
    (a)(1)(A). By contrast, in dismissing
    appellant’s administrative complaint, OHR explained that it “does not have
    jurisdiction to accept or investigate complaints of discrimination against [the D.C.
    Superior Court]”.         Its operating procedures state the same.               See
    https://ohr.dc.gov/sites/default/files/dc/sites/ohr/publication/attachments/OHR%20
    Standard%20Operating%20Procedures_October2017_FINAL.pdf;
    https://perma.cc/E435-R3FW at 10 (last visited January 14, 2022).
    10
    This court has recognized the Council’s “inten[t] to allow the courts of this
    jurisdiction to grant broader relief under the DCHRA than the OHR [i]s authorized
    to grant” in resolving administrative complaints.        Arthur Young & Co. v.
    Sutherland, 
    631 A.2d 354
    , 371 (D.C. 1993). Thus, the same issue presented by
    OHR’s broad power to remediate DCHRA violations arises with respect to the
    broad remedial powers of courts in this jurisdiction, which likewise could be
    employed in a way that encroaches on the Joint Committee’s responsibility to
    determine personnel policies and practices for the D.C. Courts. However, given
    the “strong presumption . . . in favor of judicial reviewability” and our recognition
    that “the general equitable jurisdiction of the Superior Court extends to challenges
    by public employees of official decisions affecting their tenure,” Martin, 
    753 A.2d at 991
     (internal quotation marks omitted), we cannot easily conclude that an
    employee of the D.C. Courts may not sue the D.C. Courts to seek redress for what
    the employee alleges are the D.C. Courts’ violations of the DCHRA. 11
    11
    It also is not clear why a D.C. Courts employee’s suit against the D.C.
    Courts alleging breach of contract, wrongful termination, or violation of a District
    of Columbia law enacted for the protection of employees — any of which
    presumably could implicate the Joint Committee’s plenary authority over D.C.
    Courts’ personnel policies and practices — should be allowed, while an
    employment-discrimination suit based on alleged violations of the DCHRA would
    be inconsistent with the Joint Committee’s authority.
    11
    The Mapp court did not grapple with the issue of whether a judicial remedy
    would be inconsistent with the Court Reorganization Act’s reservation of
    “regulation of court personnel for the Joint Committee,” but concluded instead that
    “[a]ny legislation concerning [D.C. Courts] personnel policies exceeds th[e]
    boundaries [drawn by Congress].” 993 F. Supp. 2d at 29. 12 In other words, it
    reasoned that the DCHRA simply “is inapplicable to employees of the D.C.
    Superior Court and the D.C. Court of Appeals.” Id. at 28 (“The D.C. City Council
    may not regulate matters covered by the Reorganization Act, which expressly
    reserves management of personnel policies to the Joint Committee and explicitly
    exempts appointments and removals of court personnel from regulations generally
    applicable to District employees.”). As the language of the foregoing parenthetical
    shows, in reaching that conclusion, the Mapp court relied in part on the Court
    Reorganization Act language codified at 
    D.C. Code § 11-1725
    (b) that exempts
    “[a]ppointments and removals of court personnel” from “laws, rules, and
    limitations applicable to District of Columbia employees.” See 993 F. Supp. 2d at
    28 (paraphrasing § 11-1725(b) and adding the modifier “generally” before
    “applicable”).
    12
    See also Cornish, 67 F. Supp. 3d at 366; Council of the District of
    Columbia v. Gray, 
    42 F. Supp. 3d 134
    , 140 n.2 (D.D.C. 2014) (interpreting D.C
    Code § 1-206.02(a)(4) as prohibiting the Council from regulating the D.C. Courts),
    vacated as moot, 
    2015 U.S. App. LEXIS 8881
     (D.C. Cir. 2015).
    12
    We can agree that the DCHRA is a law applicable (or generally applicable)
    to District of Columbia employees. But so, for example, is Title VII; yet, as the
    Mapp court acknowledged, Title VII is applicable to D.C. Courts employees. 
    Id. at 29
    . This leads us to conclude that insofar as the Mapp court’s reasoning that the
    DCHRA “is inapplicable to employees of the [D.C. Courts]” was premised on the
    exemption expressed in § 11-1725(b), 13 the Mapp court’s reasoning is not
    persuasive.
    However, for purposes of our analysis here, what is instructive about the
    Court Reorganization Act provision codified at § 11-1725(b) is that it mandates
    that D.C. Courts employees are not generally to be considered “District of
    Columbia employees” (even though the D.C. Courts is the District’s “local court
    13
    In Martin, we observed that a “noteworthy” result of the exemption
    expressed in § 11-1725(b) is that the Comprehensive Merit Personnel Act (the
    “CMPA”), which establishes personnel policies for most employees of the District
    of Columbia government, “designedly does not apply to employees of the D.C.
    Courts.” 
    753 A.2d at 993
    . At least arguably, the (explicitly mandated and
    anticipated) CMPA or its predecessor merit personnel statute and the attendant
    regulations were the law and rules Congress had in mind in enacting the exemption
    expressed in § 11-1725(b). When Congress adopted the Court Reorganization Act,
    it certainly did not have in mind the later-enacted (and Council-enacted) DCHRA.
    13
    system” 14). What persuades us that D.C. Courts employees have no employment-
    discrimination remedy under the DCHRA is the Council’s understanding, reflected
    in statements it made when enacting the 2002 amendments to the DCHRA, that in
    the area of employment, the universe of individuals to whom the DCHRA applies
    includes, on the one hand, “District of Columbia employees,” and on the other
    hand, their “private sector counterparts” (and no one else). See Committee of the
    Whole, Report on Bill 14-132, “Human Rights Amendment Act of 2002” (April
    16, 2002), at 5. The 2002 legislation amended the DCHRA to remedy the disparity
    that “though their private sector counterparts do not have to, District of Columbia
    employees must first exhaust all administrative remedies before proceeding to
    court.”    Id.   The Council resolved this disparity “by allowing complaints by
    District employees alleging discrimination by the District to be filed either
    administratively or in Superior Court.” 15 Id. The Council found that the DCHRA
    should afford “the right to elect one’s remedy.” Id. This legislative history
    14
    Palmore, 
    411 U.S. at 408
    .
    15
    The legislation, D.C. Law 14-189, § 2(h), added a new subsection (b) to
    
    D.C. Code § 2-1403.03
    . See 
    49 D.C. Reg. 6523
    , 6524 (July 12, 2002). Section 2-
    1403.03(b) reads: “A person claiming to be aggrieved by an unlawful
    discriminatory practice on the part of District government agencies, officials, or
    employees may elect to file an administrative complaint under the rules of
    procedure established by the Mayor under this section or a civil action in a court of
    competent jurisdiction under § 2-1403.16.”
    14
    persuades us both that (1) the Council did not intend that the employment-
    discrimination provisions of the DCHRA would apply to D.C. Courts employees
    (who are neither District of Columbia employees nor private-sector employees),
    and (2) it would be inconsistent with the Council’s intended “right to elect one’s
    remedy” regulatory scheme to interpret the DCHRA as affording D.C. Courts
    employees a DCHRA-lawsuit remedy for alleged employment discrimination
    while, for the reasons discussed above, denying them access to an administrative
    remedy through OHR. 16 We therefore conclude that, as a matter of Council intent,
    the DCHRA simply does not afford any remedy to D.C. Courts employees (who,
    the Court Reorganization Act establishes, are not District of Columbia employees).
    We hasten to add, however, echoing the Mapp and Cornish courts’
    observations, that any concern that the “District’s courts would escape
    anti-discrimination regulation is diminished by the fact that local courts remain
    16
    “While the action of a later Council usually does not provide definitive
    evidence of the intent underlying the action of a former Council,” the rationale for
    an amendment may support an interpretation regarding the Council’s original
    intent. Coleman v. Cumis Ins. Soc., 
    558 A.2d 1169
    , 1172-173 (D.C. 1989)
    (citations omitted). To borrow language from the Supreme Court, if the Council
    did not intend to create a DCHRA remedy for D.C. Courts employees to obtain
    redress for employment discrimination, “a cause of action [for them under the
    DCHRA] does not exist and [this court] may not create one, no matter how
    desirable that might be as a policy matter, or how compatible with the [goals of]
    the statute.” Alexander v. Sandoval, 
    532 U.S. 275
    , 286-87 (2001).
    15
    subject to Title VII[.]” 17 Mapp, 993 F. Supp. 2d at 29; Cornish, 67 F. Supp. 3d at
    366. We also note that for federal employees, Title VII “provides the exclusive
    remedy for claims of federal workplace discrimination on the basis of membership
    17
    See 42 U.S.C. § 2000e-2(a)(1) (providing that “[i]t shall be an unlawful
    employment practice for an employer . . . to fail or refuse to hire or to discharge
    any individual, or otherwise to discriminate against any individual with respect to
    his compensation, terms, conditions, or privileges of employment, because of such
    individual’s race, color, religion, sex, or national origin”).
    Appellant alleged discrimination not only on the basis of race and sex but
    also on the basis that she is dark-skinned; her complaint refers to this as
    discrimination based on “personal appearance,” which is a prohibited basis of
    discrimination under the DCHRA but not under Title VII. However, the DCHRA
    prohibition against discrimination on the basis of “personal appearance” is a
    prohibition against discrimination based on “the outward appearance of any
    person, irrespective of sex, with regard to bodily condition or characteristics,
    manner or style of dress, and manner or style of personal grooming, including, but
    not limited to, hair style and beards.” 
    D.C. Code § 2-1401.02
    (22). Discrimination
    on the basis of dark skin would seem to constitute discrimination on the basis of
    color or race. Cf. Howard v. District of Columbia Pub. Sch., 
    501 F. Supp. 2d 116
    ,
    121 n.15 (D.D.C. 2007) (“Title VII claims based on color have been interpreted by
    the courts as relating to the complexion of one’s skin.”). Color and race are
    prohibited bases of discrimination under both Title VII and the DCHRA. See 42
    U.S.C. § 2000e-2(a)(1) and 
    D.C. Code § 2-1402.11
    (a). In addition, retaliation for
    having opposed discrimination on any of the prohibited bases is an unlawful
    practice under both Title VII and the DCHRA. See 42 U.S.C. § 2000e-3(a) (“It
    shall be an unlawful employment practice for an employer to discriminate against
    any of his employees . . . because he has opposed any practice made an unlawful
    employment practice by this title.”) and 
    D.C. Code § 2-1402.61
    (a) (“It shall be an
    unlawful discriminatory practice to coerce, threaten, retaliate against, or interfere
    with any person in the exercise or enjoyment of, or on account of having exercised
    or enjoyed, or on account of having aided or encouraged any other person in the
    exercise or enjoyment of any right granted or protected under this chapter.”).
    16
    in classes protected by Title VII.” 18 Because D.C. Courts non-judicial employees
    “shall be treated as employees of the Federal Government” for some (limited but
    significant) purposes, 
    D.C. Code § 11-1726
    (b)(1), it is neither untoward nor
    incongruous that D.C. Courts employees, like federal employees, are foreclosed
    from pursuing employment-discrimination claims through city or state anti-
    discrimination or human rights laws. 19 Finally, we note in addition that Policy No.
    0400(I) of the D.C. Courts Comprehensive Personnel Policies (“CPP”) adopted by
    the Joint Committee precisely tracks the DCHRA provision listing the prohibited
    bases of employment discrimination, thereby affording protection from invidious
    employment discrimination. 20
    18
    Moore v. Carson, 775 F. App’x 2, 2 (D.C. Cir. 2019); see also, e.g.,
    Howard v. Pritzker, 
    775 F.3d 430
    , 432 (D.C. Cir. 2015) (“In Title VII, Congress
    enacted ‘an exclusive, pre-emptive administrative and judicial scheme for the
    redress of federal employment discrimination.’” (quoting Brown v. Gen. Servs.
    Admin., 
    425 U.S. 820
    , 829 (1976))); Chennareddy v. Bowsher, 
    935 F.2d 315
    , 318
    (D.C. Cir. 1991) (“[T]he ADEA provides the exclusive remedy for a federal
    employee who claims age discrimination.”).
    19
    See Pretlow v. Garrison, 420 F. App’x 798, 801 (10th Cir. 2011)
    (explaining that federal employee’s exclusive remedy for complaints of
    discrimination and associated retaliatory conduct was provided by Title VII and
    that claims under state anti-discrimination law were precluded); Rivera v. Heyman,
    
    157 F.3d 101
    , 105 (2d Cir. 1998) (agreeing that federal employee could not sue
    under the Human Rights Laws of the State and City of New York because “Title
    VII provides the sole remedy for federal employees alleging employment
    discrimination”).
    20
    Compare CPP Policy No. 400(I) (“It is the policy of the District of
    Columbia Courts to provide equal employment opportunity for all persons; to
    (continued…)
    17
    To sum up, we conclude that D.C. Courts employees have no remedy under
    the DCHRA for employment discrimination, and we therefore uphold the Superior
    Court’s ruling dismissing appellant’s DCHRA discrimination and retaliation
    claims.
    (…continued)
    prohibit discrimination in employment on account of race, color, religion, national
    origin, sex, age, marital status, personal appearance, sexual orientation, gender
    identity or expression, family responsibilities, genetic information, disability,
    matriculation, political affiliation, status as a victim or family member of a victim
    of domestic violence, a sexual offense, or stalking, or credit information of any
    individual[.]”) with the DCHRA section codified at 
    D.C. Code § 2-1402.11
    (a)
    (prohibiting employment discrimination based on actual or perceived “race, color,
    religion, national origin, sex, age, marital status, personal appearance, sexual
    orientation, gender identity or expression, family responsibilities, genetic
    information, disability, matriculation, political affiliation, status as a victim or
    family member of a victim of domestic violence, a sexual offense, or stalking, or
    credit information of any individual”). Thus, the Cornish court’s observation that
    the D.C. Courts personnel policies “include[] similar language to the DCHRA
    about prohibiting discrimination,” 67 F. Supp. 3d at 367, is something of an
    understatement.
    Appellant’s complaint did not assert a violation of the CPP, and this appeal
    does not raise the issue of whether a D.C. Courts employee may sue to recover
    damages (the relief appellant seeks) for an alleged violation of Policy No. 400(I).
    Accordingly, we express no opinion as to that question. But see Martin, 
    753 A.2d at 993-94
     (holding that although no section of the CPP provides for judicial
    review, the procedures specified in the CPP are binding regulations and are
    enforceable through judicial review); Cornish, 67 F. Supp. 3d at 367 (concluding
    that nothing in sections of the CPP “grants an employee the right to sue the District
    or the D.C. Courts for monetary damages based on alleged employment
    discrimination”).
    18
    B.
    The Superior Court dismissed appellant’s Title VII claim (as well as her
    ADEA claim) as time-barred because appellant failed to file suit within ninety days
    from the date when she received notice from the EEOC of her right to file. See 42
    U.S.C. §§ 2000e-5(f)(1) and 2000e-16(c) and 
    29 U.S.C. § 626
    (e). Appellant’s
    EEOC right-to-sue notice was dated October 12, 2017, but she did not file her
    complaint until August 7, 2018, which the Superior Court aptly observed was
    “well beyond the filing period.”     We therefore uphold the dismissal of these
    claims.
    C.
    The Superior Court found that the Amended Complaint failed to allege facts
    that could support a claim for defamation. The statements about which appellant
    complains were (1) alleged statements by defendants to appellant’s former
    coworkers that appellant was not permitted to return to the workplace during
    business hours and (2) alleged statements to prospective employers that appellant
    was terminated for failure to perform.
    19
    To prove a claim of defamation, a plaintiff must show that (1) the defendant
    made a false and defamatory statement concerning the plaintiff; (2) the defendant
    published the statement without privilege to a third party; (3) the defendant’s fault
    in publishing the statement amounted to at least negligence; and (4) publication of
    the statement caused the plaintiff special harm or the statement was actionable as a
    matter of law irrespective of special harm. See Carter v. Hahn, 
    821 A.2d 890
    , 893
    (D.C. 2003). In this jurisdiction, “one who in the regular course of business is
    asked by a prospective employer . . . for information concerning a person, is
    entitled to the defense of qualified privilege if his reply would otherwise be
    regarded as defamatory.” Smith v. District of Columbia, 
    399 A.2d 213
    , 220 (D.C.
    1979) (quoting Collins v. Brown, 
    268 F. Supp. 198
    , 200 (D.D.C., 1967)); see also
    Edwards v. James Stewart & Co., 
    160 F.2d 935
    , 936 (D.C. Cir. 1947) (concluding
    that former employer’s letter to a prospective employer, stating that the former
    employee’s “services were not satisfactory,” was a privileged communication).
    Where (as here) the existence of such a privilege is apparent from the face of the
    complaint, to state a claim and withstand a motion to dismiss, the complaint must
    “plead facts which, if true, would demonstrate that defendants had lost the
    privilege by making statements with actual malice.” Issaenko v. Univ. of Minn., 
    57 F. Supp. 3d 985
    , 1033 (D. Minn. 2014) (citing Elkharwily v. Mayo Holding Co.,
    20
    
    955 F. Supp. 2d 988
    , 999-1000 (D. Minn. 2013)); see also Mosrie v. Trussell, 
    467 A.2d 475
    , 477 (D.C. 1983) (“[T]he defense [of qualified privilege] is lost by the
    showing of malice.”); Hargrow v. Long, 
    760 F. Supp. 1
    , 3 (D.D.C. 1989) (stating
    that privilege can be overcome if the plaintiff shows that the statements were
    “knowingly false [] or made in bad faith or reckless disregard of the truth”).
    The Superior Court dismissed appellant’s defamation claims on the ground
    that the alleged statements were not false. The court reasoned that the first of the
    alleged statements accurately restated what appellant was told in the termination
    notice, i.e., that as a former employee, she was allowed to retrieve personal items
    from the court building and to return D.C. Courts property only outside of office
    hours.     The court also found that the alleged statements implied nothing
    defamatory, but instead reflected “a standard and predictable aspect of workplace
    policy in an organization concerned about security.”         Regarding the alleged
    statements to prospective employers, the court noted that they accurately reflected
    the statement in the termination notice that appellant was terminated for “failure to
    demonstrate satisfactory performance.” The record supports the Superior Court’s
    analysis on these points.
    21
    Moreover, as numerous courts have held, “mere allegations of unsatisfactory
    job performance do not generally rise to the level of defamation per se.” Mann v.
    Heckler & Koch Def., Inc., 
    639 F. Supp. 2d 619
    , 635 (E.D. Va. 2009) (quoting
    McBride v. City of Roanoke Redevelopment & Housing, 
    871 F. Supp. 885
    , 892
    (W.D. Va. 1994); see also, e.g., ITT Rayonier, Inc. v. McLaney, 
    420 S.E.2d 610
    ,
    613 (Ga. App. 1992) (although supervisor asserted that the plaintiff’s job
    performance was unsatisfactory, the expression of that opinion did not constitute
    an actionable defamation). Further, although appellant alleges that the statements
    to prospective employers were pretextual and made with knowledge that the stated
    rationale of “failure to demonstrate satisfactory performance” was untrue, her
    Amended Complaint does not identify who allegedly conveyed the information in
    question to the prospective employers, and does not allege that those particular
    individuals knew what appellant claims were the actual (retaliatory) reasons for her
    termination.   Rather, the Amended Complaint refers vaguely to “Defendants’
    negative comments” and asserts that unspecified “Defendants have reportedly told
    prospective employers who called for a reference that Plaintiff was terminated for
    performance.” 21 In short, the complaint does not “plead facts which, if true, would
    21
    Cf. Stencel v. Augat Wiring Sys., 
    173 F. Supp. 2d 669
    , 681 (E.D. Mich.
    2001) (dismissing defamation claim against corporation and concluding that it was
    not pled with sufficient detail where the plaintiff failed to name as defendant(s) any
    individual person(s) who made the allegedly defamatory statement).
    22
    demonstrate that defendants . . . lost the privilege” by making statements with bad
    faith, malice, or reckless disregard of the truth. Issaenko, 57 F. Supp. 3d at 1033.
    For these reasons, too, we agree that appellant failed to plead facts sufficient for a
    plausible claim of defamation. See Clampitt v. American Univ., 
    957 A.2d 23
    , 29
    (D.C. 2008) (explaining that to withstand a motion to dismiss, a complaint’s
    “[f]actual allegations must be enough to raise a right to relief above the speculative
    level” (quoting Bell Atl. Corp. v. Twombly, 
    550 U.S. 544
    , 555 (2007)).
    For the foregoing reasons, we uphold the dismissal of appellant’s defamation
    claim.
    D.
    We likewise uphold the court’s dismissal of appellant’s intentional infliction
    of emotional distress (“IIED”) claim. To state a claim for IIED, a plaintiff must
    prove (1) extreme and outrageous conduct by the defendant that (2) intentionally or
    recklessly (3) caused the plaintiff severe emotional distress. See Kotsch v. District
    of Columbia, 
    924 A.2d 1040
    , 1045 (D.C. 2007). To be “extreme and outrageous,”
    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
    23
    intolerable in a civilized community.” Kerrigan v. Britches of Georgetowne, Inc.,
    
    705 A.2d 624
    , 628 (D.C. 1997) (internal quotation marks omitted) (quoting
    Bernstein v. Fernandez, 
    649 A.2d 1064
    , 1075 (D.C. 1991)).
    The Superior Court found that appellant had alleged no facts that satisfy that
    demanding standard; it reasoned that it is customary for prospective employers to
    inquire about a prospective employee’s work performance, and that a bare
    statement that appellant failed to demonstrate satisfactory performance was neither
    extreme nor outrageous. The court also found that appellant alleged nothing in the
    Amended Complaint to support a finding that she suffered severe emotional
    distress. We agree. 22
    E.
    Appellant’s wrongful termination claim was also properly dismissed. She
    was still a probationary employee at the time of her termination and thus was an at-
    will employee who could be discharged “at any time and for any reason, or for no
    22
    See also Ray v. Reich, No. 93-5294, 
    1994 WL 148105
    , at *1 (D.C. Cir.
    Apr. 13, 1994) (per curiam) (“[A]s Title VII provides the exclusive remedy for
    federal employees asserting discrimination claims, [appellant’s] claim[] for
    intentional infliction of emotional distress . . . w[as] properly dismissed.”).
    24
    reason at all.” Adams v. George W. Cochran & Co., 
    597 A.2d 28
    , 30 (D.C. 1991).
    There is, as the Superior Court recognized, a narrow exception to the at-will-
    employee doctrine that applies where an at-will employee is terminated for refusal
    to violate the law, or where the termination violates public policy. See 
    id. at 32
    .
    Appellant did not allege that she was terminated for refusal to violate the law. As
    for her claim that her termination was discriminatory and retaliatory and thus
    against public policy, that claim was not cognizable. As we have explained, where
    there is “a specific, statutory cause of action to enforce” a public policy (such as a
    policy against workplace discrimination and against retaliation based on invocation
    of rights under the antidiscrimination statute), this court will “defer to the
    legislature’s prerogatives and . . . decline to recognize a novel, competing cause of
    action for wrongful discharge at common law.” Carter v. District of Columbia,
    
    980 A.2d 1217
    , 1226 (D.C. 2009). Thus, the fact that appellant could have timely
    pursued her rights under the public policies that are embodied in Title VII 23 and the
    ADEA means that she may not pursue a claim for termination in violation of
    public policy based on the same factual allegations she asserted in support of her
    Title VII and ADEA claims. See Nolting v. National Capital Group, Inc., 
    621 A.2d 1387
    , 1390 (D.C. 1993) (“[W]e do not think [the ‘very narrow’ public policy
    23
    See, e.g., 42 U.S.C. § 2000e-3(a) (prohibiting retaliation for complaining
    of Title VII violation).
    25
    exception] can be invoked where the very statute creating the relied-upon public
    policy already contains a specific and significant remedy for the party aggrieved by
    its violation.”); see also, e.g., Kassem v. Washington Hosp. Ctr., 
    513 F.3d 251
    ,
    255 (D.C. Cir. 2008) (upholding dismissal of wrongful-discharge claim because
    “the District’s own common law extinguishes [such a claim] when the statute
    giving rise to the public policy at issue contains an alternative remedy”); Jones v.
    District of Columbia Water & Sewer Auth., 
    943 F. Supp. 2d 90
    , 96 (D.D.C. 2013)
    (“To the extent that Jones asserts a cause of action that rests on a public policy
    already advanced by Title VII, the DCHRA, or the District’s Whistleblower
    Protection Act, for example, [a public-policy exception] claim would
    fail.”); Stevens v. Sodexo, Inc., 
    846 F. Supp. 2d 119
    , 126 (D.D.C. 2012) (The
    public-policy exception must rest on “a statute or regulation that does not provide
    its own remedy.”); Carson v. Giant Food, Inc., 
    187 F. Supp. 2d 462
    , 483 (D. Md.
    2002) (rejecting public-policy exception where remedy already exists under Title
    VII).
    F.
    Finally, the Superior Court dismissed appellant’s conspiracy claim on the
    ground that the defendants constitute a single entity, such that, as a matter of law,
    26
    there could be no agreement among them establishing a conspiracy. See, e.g.,
    Hamilton v. District of Columbia, 
    720 F. Supp. 2d 102
    , 109 (D.D.C. 2010)
    (explaining that when D.C. government officials act within the scope of their
    employment, they are considered members of a single entity); McMillian v.
    District of Columbia, 
    466 F. Supp. 2d 219
    , 223 (D.D.C. 2006) (noting that an
    action for civil conspiracy does not encompass acts performed by a single entity,
    and concluding that because the defendant District of Columbia government and its
    officials constitute a single entity, the plaintiff’s allegations could not make out a
    case for civil conspiracy).
    Appellant contends that her Amended Complaint sufficiently alleged that the
    individual defendants agreed on a course of conduct that was not part of their
    employment responsibilities.     We need not resolve that issue because, in our
    jurisdiction, conspiracy is not an independent tort but depends upon the
    establishment of some other tortious conduct by the defendants. See Saucier v.
    Countrywide Home Loans, 
    64 A.3d 428
    , 446 (D.C. 2013) (“[[C]ivil] conspiracy is
    not independently actionable; rather it is a means for establishing vicarious liability
    for the underlying tort.”) (internal quotation marks omitted) (quoting Halberstam
    v. Welch, 
    705 F.2d 472
    , 479 (D.C. Cir. 1983)). Because appellant’s other claims
    fail for the reasons explained above, her conspiracy claim likewise fails.
    27
    For all the foregoing reasons, the judgment of the Superior Court is
    Affirmed.
    

Document Info

Docket Number: 19-CV-567

Filed Date: 2/17/2022

Precedential Status: Precedential

Modified Date: 2/17/2022

Authorities (29)

Stencel v. Augat Wiring Systems , 173 F. Supp. 2d 669 ( 2001 )

Carson v. Giant Food, Inc. , 187 F. Supp. 2d 462 ( 2002 )

venkareddy-chennareddy-general-class-representing-himself-and-all-others , 935 F.2d 315 ( 1991 )

Carter v. District of Columbia , 2009 D.C. App. LEXIS 472 ( 2009 )

McMillian v. District of Columbia , 466 F. Supp. 2d 219 ( 2006 )

Clampitt v. American University , 2008 D.C. App. LEXIS 408 ( 2008 )

Mann v. Heckler & Koch Defense, Inc. , 639 F. Supp. 2d 619 ( 2009 )

Hamilton v. District of Columbia , 720 F. Supp. 2d 102 ( 2010 )

Martin v. District of Columbia Courts , 2000 D.C. App. LEXIS 107 ( 2000 )

Bell Atlantic Corp. v. Twombly , 127 S. Ct. 1955 ( 2007 )

Mosrie v. Trussell , 1983 D.C. App. LEXIS 515 ( 1983 )

Saucier v. Countrywide Home Loans , 2013 D.C. App. LEXIS 164 ( 2013 )

Kassem v. Washington Hospital Center , 513 F.3d 251 ( 2008 )

Collins v. Brown , 268 F. Supp. 198 ( 1967 )

Amador Rivera v. I. Michael Heyman, Secretary, Smithsonian ... , 157 F.3d 101 ( 1998 )

ITT Rayonier, Inc. v. McLaney , 204 Ga. App. 762 ( 1992 )

Hargrow v. Long , 760 F. Supp. 1 ( 1989 )

elliott-jones-halberstam-individually-and-as-administratrix-of-the-estate , 705 F.2d 472 ( 1983 )

Bernstein v. Fernandez , 1991 D.C. App. LEXIS 359 ( 1991 )

Kotsch v. District of Columbia , 2007 D.C. App. LEXIS 267 ( 2007 )

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