Robert Grimes v. District of Columbia Business Decisions Information, Inc., Welton Williams , 2014 D.C. App. LEXIS 104 ( 2014 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 12-CV-0218
ROBERT GRIMES, APPELLANT,
v.
DISTRICT OF COLUMBIA,
BUSINESS DECISIONS INFORMATION INC.,
WELTON WILLIAMS, APPELLEES.
Appeal from the Superior Court
of the District of Columbia
(CA-2009-9659)
(Hon. John M. Mott, Trial Judge)
(Argued December 4, 2013 Decided April 17, 2014)
Gregory L. Latimer, with whom Harold L. Levi was on the brief, for
appellant.
Gregory M. Cumming, Assistant Attorney General, with whom Irvin B.
Nathan, Attorney General for the District of Columbia, Todd S. Kim, Solicitor
General, and Donna M. Murasky, Deputy Solicitor General, were on the brief, for
appellee District of Columbia.
Aaron L. Handleman, with whom Justin M. Flint and Shannon Chaudhry
were on the brief, for appellees Business Decisions Information Inc. and Welton
Williams.
Before GLICKMAN, BLACKBURNE-RIGSBY, and MCLEESE, Associate Judges.
2
MCLEESE, Associate Judge: Appellant Robert Grimes seeks review of the
Superior Court’s dismissal of his claims against the District of Columbia, Business
Decisions Information Inc. (“BDI”), and Welton Williams, BDI’s Chief Operating
Officer.1 Mr. Grimes’s claims arise from the District’s hiring of BDI to investigate
Mr. Grimes after Mr. Grimes sought disability benefits. We affirm.
I.
In 1990, Mr. Grimes injured his back while working as a supervisory tax
auditor for the District of Columbia Department of Finance and Revenue. Mr.
Grimes filed a disability claim, which resulted in lengthy administrative
proceedings. Mr. Grimes ultimately prevailed, and in 1998 the Employees
Compensation Order Review Board awarded Mr. Grimes temporary total disability
benefits.
The District’s Officer of Risk Management terminated Mr. Grimes’s
disability benefits, based on evaluations conducted by independent medical
examiners. Mr. Grimes challenged the termination of his benefits, and an ALJ
1
We hereinafter refer to Business Decisions Information Inc. and Mr.
Williams collectively as “BDI.”
3
entered a compensation order concluding that Mr. Grimes remained entitled to
disability benefits.
The District refused to pay some of the benefits due to Mr. Grimes under the
compensation order. In support of its refusal, the District relied upon a report from
BDI, which the District had hired to investigate Mr. Grimes’s employment history
and income. According to Mr. Grimes, BDI’s report falsely said that from 1998 to
2007, while he was receiving disability benefits, Mr. Grimes also operated
“Grimes & Associates, CPAs,” where he earned income as an accountant. Mr.
Grimes also asserts that the BDI report falsely accused him of earning income from
real-estate investments and pursuing a personal-injury claim on behalf of his
deceased father. Finally, Mr. Grimes states that the District and BDI published the
report and its false information to other individuals “in the hope of generating other
negative information.”
In 2010, Mr. Grimes filed a complaint in Superior Court alleging that the
District and BDI had conspired to discredit Mr. Grimes and prevent him from
receiving disability benefits. Specifically, Mr. Grimes alleged (1) violations of the
Comprehensive Merit Personnel Act (“CMPA”), D.C. Code § 1-601.01 et seq.
(2012 Repl.); (2) conspiracy to violate his constitutional rights; (3) retaliation; (4)
4
intentional infliction of emotional distress (“IIED”); and (5) civil conspiracy. BDI
moved to dismiss Mr. Grimes’s complaint for failure to state a claim under
Superior Court Rule of Civil Procedure 12 (b)(6). The District moved for
judgment on the pleadings under Superior Court Rule of Civil Procedure 12 (c).
The trial court granted BDI’s motion to dismiss and the District’s motion for
judgment on the pleadings. First, the court noted that Mr. Grimes had stipulated to
a dismissal of the claim of conspiracy to violate his constitutional rights. Second,
the court held that the CMPA foreclosed Mr. Grimes’s remaining claims because
Mr. Grimes had failed to plead administrative exhaustion. Third, the court found
that Mr. Grimes had failed to state an IIED claim because Mr. Grimes had failed to
plead facts showing “extreme and outrageous conduct” or “emotional distress.”
Fourth, the court concluded that Mr. Grimes had failed to state a claim for civil
conspiracy because Mr. Grimes had not adequately pleaded an underlying tort.
II.
Mr. Grimes makes two threshold arguments: (1) that the District’s Rule
12 (c) motion was premature and (2) that the trial court analyzed the District’s
Rule 12 (c) motion and BDI’s Rule 12 (b)(6) motion under the wrong standard.
5
We conclude that the trial court did not commit reversible error in considering the
District’s Rule 12 (c) motion and applied the proper standard in ruling on the
motions.
A.
Rule 12 (c) states that “[a]fter the pleadings are closed but within such time
as not to delay the trial, any party may move for judgment on the pleadings.”
Generally, “Rule 12(c)’s condition that the pleadings be closed requires that an
answer have been filed . . . .” Iannucci v. Pearlstein, 629 A.2d 555, 558 (D.C.
1993). Mr. Grimes argues that the pleadings had not closed at the time of the trial
court’s dismissal order, because BDI had not answered Mr. Grimes’s amended
complaint. Mr. Grimes relies on Iannucci, where we said that a plaintiff’s Rule
12 (c) motion was premature because the trial court had struck the defendant’s
answers. 629 A.2d at 558. But Iannucci is a single-defendant case, and Mr.
Grimes sued multiple defendants (the District, BDI Inc., and Mr. Williams).
We have not directly addressed the question whether the pleadings are
closed for purposes of a Rule 12 (c) motion if the moving defendant has filed an
answer but one or more other defendants have not. Courts from other jurisdictions
6
are split on that question. Compare, e.g., Jung v. Association of Am. Med. Colls.,
339 F. Supp. 2d 26, 36 (D.D.C. 2004) (considering Rule 12 (c) motion under Rule
12 (c) for defendants who answered and under Rule 12 (b)(6) for defendants who
had not), aff’d, 184 F. App’x 9 (D.C. Cir. 2006), with, e.g., Watson v. County of
Santa Clara, No. C-06-04029, 2007 WL 2043852, at *1 (N.D. Cal. July 12, 2007)
(denying Rule 12 (c) motion as premature because not all defendants had
answered) (citing cases).
We need not decide whether the pleadings were closed for purposes of the
District’s Rule 12 (c) motion. Under Superior Court Rule of Civil Procedure 61:
No error in . . . anything done or omitted by the Court . . . is ground
for . . . vacating, modifying or otherwise disturbing a judgment or
order, unless refusal to take such action appears to the Court
inconsistent with substantial justice. The Court at every stage of the
proceeding must disregard any error or defect in the proceeding which
does not affect the substantial rights of the parties.
See also 11 Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 2884 (5th ed. 2012) (“Technical errors in pleading usually are treated
as harmless and disregarded.”). Even if the trial court erred in considering the
District’s motion under Rule 12 (c), we are satisfied that any error was harmless.
Although the District moved to dismiss Mr. Grimes’s complaint under Rule
7
12 (c), the same substantive relief would be available under Rule 12 (b)(6). See,
e.g., District of Columbia v. Beretta, U.S.A., Corp., 872 A.2d 633, 639 (D.C. 2005)
(en banc) (same standard applies to motion to dismiss for failure to state claim
under Rule 12 (b)(6) and motion for judgment on pleadings under Rule 12 (c)).
Mr. Grimes has failed to show how the trial court’s judgment would have been
different had the court reviewed the District’s motion under Rule 12 (b)(6). Cf.,
e.g., Jung, 339 F. Supp. 2d at 35-36 (“No prejudice to any party results from
treating a Rule 12(c) motion as a Rule 12(b)(6) motion because the standard of
review for motions for judgment on the pleadings under Rule 12(c) . . . is
essentially the same as that for motions to dismiss under Rule 12(b)(6).”); Seber v.
Unger, 881 F. Supp. 323, 325 n.2 (N.D. Ill. 1995) (construing Rule 12 (c) motion
as Rule 12 (b)(6) motion “[b]ecause [Rule 12 (c)] motion essentially serves the
same purpose as a Rule 12(b)(6) motion”). In sum, even if the District’s
Rule 12 (c) motion was premature, any error in considering the
motion under Rule 12 (c) rather than Rule 12 (b)(6) was harmless.
B.
Mr. Grimes also argues that the trial court should have considered the
District’s Rule 12 (c) motion and BDI’s Rule 12 (b)(6) motion as motions for
8
summary judgment under Superior Court Rule of Civil Procedure 56, because
discovery had closed and because the District and BDI had filed motions for
summary judgment with supporting materials. We disagree.
Rules 12 (b)(6) and 12 (c) provide that if “matters outside the pleading are
presented to and not excluded by the Court, the motion shall be treated as one for
summary judgment and disposed of as provided in Rule 56 . . . .” A trial court is
not required to convert a Rule 12 (b)(6) or Rule 12 (c) motion into a motion for
summary judgment, however, as long as the court does not consider matters
outside the pleadings. See, e.g., In re Estate of Barfield, 736 A.2d 991, 995 (D.C.
1999) (affirming trial court’s grant of Rule 12 (b)(6) motion to dismiss, because
court did not consider matters outside the pleadings); Harper v. Lawrence Cnty.,
Ala., 592 F.3d 1227, 1232 (11th Cir. 2010) (“A judge need not convert a motion to
dismiss into a motion for summary judgment as long as he or she does not consider
matters outside the pleadings.”). See also 5C Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 1371 (5th ed. 2012) (“As is true of
practice under Rule 12(b)(6), it is well-settled that it is within the [trial] court’s
discretion whether to accept extra-pleading matter on a [Rule 12 (c)] motion for
judgment on the pleadings and treat it as one for summary judgment or to reject it
and maintain the character of the motion as one under Rule 12(c).”).
9
Here, the trial court did not consider matters outside the pleadings. First, the
court’s substantive analysis of Mr. Grimes’s claims refers only to language from
Mr. Grimes’s complaint. Second, although the court discussed a court order from
an earlier case between Mr. Grimes and BDI, court orders are not “matters outside
the pleadings.” See Smith v. Public Defender Serv., 686 A.2d 210, 212 (D.C.
1996) (holding that “opinions and orders . . . do not constitute matters outside the
pleading[s]”) (internal quotation marks omitted). Third, the trial court’s
description of BDI’s report in the procedural-history section of the dismissal order
does not constitute consideration of matters outside the pleadings, because the trial
court merely repeated the complaint’s description of BDI’s report. The trial court
therefore was not required to treat the Rule 12 (c) and 12 (b)(6) motions as motions
for summary judgment under Rule 56.
III.
We now turn to the merits of Mr. Grimes’s appeal. Under Rules 12 (b)(6)
and 12 (c), we review de novo a trial court’s dismissal of a complaint. See Beretta,
872 A.2d at 639. To survive a Rule 12 (b)(6) or 12 (c) motion, “a complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief that is
10
plausible on its face.” Potomac Dev. Corp. v. District of Columbia, 28 A.3d 531,
544 (D.C. 2011) (internal quotation marks omitted). Pleadings that “are no more
than conclusions . . . are not entitled to the assumption of truth,” and are
insufficient to sustain a complaint. Id. But, “[w]hen there are well-pleaded factual
allegations, a court should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.” Id. In this court, Mr. Grimes
advances only his retaliation, IIED, and civil-conspiracy claims.2 We uphold the
trial court’s dismissal of the complaint.
A.
The trial court dismissed Mr. Grimes’s retaliation claim on the ground that it
was foreclosed by the CMPA. But if the complaint stated a viable claim of
retaliation under the District of Columbia Human Rights Act (“DCHRA”), D.C.
Code § 2–1401.01 et seq. (2012 Repl.), the CMPA would not foreclose that claim.
Coleman v. District of Columbia, 80 A.3d 1028, 1033 n.7 (D.C. 2013) (“The
CMPA does not foreclose claims arising under the . . . Human Rights Act.”). We
2
Mr. Grimes alleged in the complaint that the District violated unspecified
provisions of the CMPA. Because Mr. Grimes did not brief that claim in this
court, Mr. Grimes has abandoned the claim. See Maupin v. Haylock, 931 A.2d
1039, 1041 n.1 (D.C. 2007) (treating as “abandoned” claim made in complaint but
not briefed on appeal).
11
nevertheless affirm the trial court’s dismissal of the retaliation claim, because the
complaint fails to state a DCHRA retaliation claim.3
The DCHRA prohibits an employer from retaliating against an employee
because the employee has exercised a right granted or protected by the DCHRA.
See D.C. Code § 2-1402.61 (a) (2012 Repl.). To survive a Rule 12 (c) or 12 (b)(6)
motion, Mr. Grimes must allege: (1) that he engaged in statutorily protected
activity; (2) that his employer took adverse personnel action against him; and (3)
that a causal connection exists between the protected activity and the adverse
action. See Millstein v. Henske, 722 A.2d 850, 853 (D.C. 1999). We conclude that
Mr. Grimes failed to plead facts showing that he engaged in a protected activity.
Mr. Grimes identifies his protected activity as “the seeking of disability
benefits in itself.” The DCHRA protects employees from employer retaliation on
3
We may affirm the trial court’s dismissal on other grounds. See National
Ass’n of Postmasters of U.S. v. Hyatt Regency Wash., 894 A.2d 471, 474 (D.C.
2006) (“Where there will be no procedural unfairness, we may affirm a judgment
on any valid ground, even if that ground was not relied upon by the trial judge or
raised or considered in the trial court.”) (internal quotation marks omitted). We see
no unfairness in affirming on the ground that the complaint failed to state a
DCHRA retaliation claim, because Mr. Grimes briefed that issue in this court and
in the trial court. See In re Walker, 856 A.2d 579, 586 (D.C. 2004) (no procedural
unfairness where appellant “has had notice of the ground upon which affirmance is
proposed, as well as an opportunity to make an appropriate factual and legal
presentation with respect thereto”).
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the basis that the employee has “exercised or enjoyed . . . any right granted or
protected under this chapter.” D.C. Code § 2-1402.61 (a) (emphasis added).
Seeking workers’ compensation benefits is not a right “granted or protected” by
the DCHRA. See D.C. Code § 2-1402.11 (a)(1) (2012 Repl.) (DCHRA prohibits
“discriminatory practice . . . based upon . . . race, color, religion, national origin,
sex, age, marital status, personal appearance, sexual orientation, gender identity or
expression, family responsibilities, genetic information, disability, matriculation,
or political affiliation of any individual”). Put differently, filing a workers’
compensation claim seeking disability benefits is not equivalent to filing a
complaint alleging that an employer discriminated against an employee because of
disabilities protected by the DCHRA.
We therefore agree with the federal courts of appeals that have held that the
mere filing of a workers’ compensation claim is not a protected activity under
statutes analogous to the DCHRA. See, e.g., Kendall v. Postmaster Gen. of U.S.,
543 F. App’x 141, 144-45 (3d Cir. 2013) (per curiam) (filing workers’
compensation claim not protected activity for purposes of retaliation claim under
Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. (2012)); Reynolds v. American
Nat’l Red Cross, 701 F.3d 143, 154-55 (4th Cir. 2012) (filing workers’
compensation claim not protected activity for retaliation claim under Americans
13
with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (2012)); Jimenez v. Potter,
211 F. App’x 289, 290 (5th Cir. 2006) (per curiam) (filing workers’ compensation
claim not protected activity for retaliation claim under Title VII of Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq. (2012)); see generally Strass v. Kaiser Found.
Health Plan of Mid-Atl., 744 A.2d 1000, 1008 n.8 (D.C. 2000) (“In determining
the kind of proof required to prove [DCHRA] violations, this court has looked to
cases decided under analogous federal statutes for guidance.”).4 In sum, Mr.
Grimes has not stated a retaliation claim under the DCHRA.5
4
Several unpublished district-court decisions have held that filing a
workers’ compensation claim was a protected activity under statutes analogous to
the DCHRA, because other provisions of state law prohibited employers from
retaliating against employees for filing workers’ compensation claims. See, e.g.,
Names v. Lee Publ’ns, Inc., No. 09CV0132, 2009 WL 3008296, at *3 (S.D. Cal.
Sept. 21, 2009) (filing workers’ compensation claim was protected activity for
purposes of retaliation claim under California Fair Employment and Housing Act,
Cal. Gov’t Code § 12900 et seq., because California Labor Code prohibited
retaliation against employees for filing workers’ compensation claim). We express
no view as to whether those decisions are correct in the context of the specific
provisions at issue in those cases. Under the express language of the DCHRA,
protection against retaliation is limited to acts based on the exercise of rights
granted or protected by the DCHRA.
5
Although we conclude that the DCHRA does not provide a remedy for
retaliation against employees who seek workers’ compensation benefits, other
remedies may exist. For example, a District statute expressly prohibits retaliation
against employees who file workers’ compensation claims, see D.C. Code
§ 32-1542 (2012 Repl.), although that provision appears to be inapplicable to
District employees, see D.C. Code § 32-1501 (9)(B) (2012 Repl.). Even in the
absence of an express statutory protection, employees may have remedies if their
employers retaliate against them for seeking workers’ compensation benefits. See,
( continued…)
14
B.
We next turn to Mr. Grimes’s argument that he has sufficiently stated IIED
claims against the District and BDI. To state an IIED claim, a plaintiff must plead
facts showing “(1) extreme and outrageous conduct on the part of the defendant
which (2) intentionally or recklessly (3) causes the plaintiff severe emotional
distress.” Minch v. District of Columbia, 952 A.2d 929, 940 (D.C. 2008).
“Liability will be imposed only for conduct 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 intolerable in a civilized community.” Homan v.
Goyal, 711 A.2d 812, 818 (internal quotation marks omitted), amended by 720
A.2d 1152 (D.C. 1998) (per curiam). We uphold the trial court’s dismissal of Mr.
Grimes’s IIED claims.
(…continued)
e.g., Shick v. Shirey, 716 A.2d 1231, 1232-38 (Pa. 1998) (common-law cause of
action exists under Pennsylvania law against employer that discharges employee
for filing workers’ compensation claim).
15
1.
Mr. Grimes fails to state an IIED claim against BDI because Mr. Grimes has
not alleged facts showing extreme and outrageous conduct. “In the employment
context, we traditionally have been demanding in the proof required to support an
[IIED] claim.” Kerrigan v. Britches of Georgetowne, Inc., 705 A.2d 624, 628
(D.C. 1997). In Kerrigan, we upheld the dismissal of an IIED claim, on the
ground that the plaintiff did not allege sufficiently outrageous conduct, where the
plaintiff claimed 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.” Id. See also Williams v. District of
Columbia, 9 A.3d 484, 493-94 (D.C. 2010) (upholding dismissal of IIED claim on
the ground that the plaintiff failed to allege sufficiently extreme and outrageous
conduct, where plaintiff alleged that his employers’ agents spread false rumors that
employer terminated plaintiff for embezzlement).
Mr. Grimes’s IIED claim rests on the allegation that BDI knowingly wrote a
16
false report suggesting that Mr. Grimes was not entitled to workers’ compensation
benefits and published that report to others. Like the plaintiff’s allegations in
Kerrigan that his employer targeted him for investigation, manufactured false
evidence, and leaked that evidence to others, Mr. Grimes’s allegations that BDI
investigated him, wrote a false report, and published that report to others is conduct
attributable to “employer-employee conflicts [that] do not, as a matter of law, rise
to the level of outrageous conduct.” Kerrigan, 705 A.2d at 628 (alterations in
original and internal quotation marks omitted).
A plaintiff may state an IIED claim by alleging that the defendant caused the
plaintiff to be falsely arrested. See District of Columbia v. Tulin, 994 A.2d 788,
801 (D.C. 2010) (evidence supported IIED claim based on defendant’s role “in the
sequence of events which ultimately led to [the plaintiff’s] arrest and
prosecution”). Mr. Grimes, however, has expressly acknowledged that his IIED
claim is not based on a theory that BDI made and published its report for use in
judicial proceedings against Mr. Grimes. Mr. Grimes’s allegations are therefore
more similar to the employer-employee conflict in Kerrigan than to the allegations
that led to a false arrest in Tulin.
17
2.
The District argues that the CMPA forecloses Mr. Grimes’s IIED claim
against the District because the CMPA provides the exclusive remedy for Mr.
Grimes’s alleged injury. Generally, we would resolve that issue before turning to
the merits of Mr. Grimes’s IIED claim. See Dean v. United States, 938 A.2d 751,
769 (D.C. 2007) (“Before reaching the merits of an appeal, we must first determine
whether we have jurisdiction to entertain it.”) (internal quotation marks and
brackets omitted); Coleman, 80 A.3d at 1030 n.2 (“This court has consistently
understood the question whether claims are foreclosed by the CMPA to go to the
subject-matter jurisdiction of the Superior Court.”).
We nevertheless need not decide whether the CMPA foreclosed Mr.
Grimes’s IIED claim against the District. We have already decided that Mr.
Grimes’s amended complaint fails to state an IIED claim against BDI. Mr.
Grimes’s IIED claim against the District rests on the same factual allegations that
form the basis of his IIED claim against BDI, and Mr. Grimes’s IIED claim against
the District fails for the same reason that his IIED claim against BDI failed: the
complaint fails to allege actions that were sufficiently extreme and outrageous.
Thus, in concluding that Mr. Grimes failed to state an IIED claim against the
18
District, we are not skipping over a “jurisdictional question as a device for
reaching a question of law that otherwise would have gone unaddressed.” Steel
Co. v. Citizens for Better Env’t, 523 U.S. 83, 98 (1998). Rather, we simply rely on
our prior ruling in this case. Cf. id. at 98-99 (discussing Norton v. Mathews, 427
U.S. 524 (1976) (Supreme Court avoided jurisdictional issue because merits of
claim had been resolved in companion case)).
C.
Mr. Grimes has also failed to state a claim for civil conspiracy against the
District and BDI. “Civil conspiracy is not an independent tort but only a means for
establishing vicarious liability for an underlying tort.” Hill v. Medlantic Health
Care Grp., 933 A.2d 314, 334 (D.C. 2007) (internal quotation marks omitted).
Although Mr. Grimes argues that his civil-conspiracy claim is supported by his
retaliation and IIED claims, we have upheld the trial court’s dismissal of those
claims. We therefore affirm the trial court’s dismissal of Mr. Grimes’s
civil-conspiracy claim.
The judgment of the Superior Court is
Affirmed.