Kambala Wa Kambala v. Checchi and Company Consulting, Inc. ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
OLIVIER KAMBALA WA KAMBALA, )
)
Plaintiff, )
)
v. ) Case No. 17-cv-00451 (APM)
)
CHECCHI & COMPANY )
CONSULTING, INC., et al. )
)
Defendants. )
_________________________________________ )
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
Days after a heated argument with a colleague, Plaintiff Olivier Kambala wa Kambala was
fired from his position with Defendant Checchi and Company Consulting, Inc., a consulting firm
based in Washington, D.C., that performs international development work. Defendant retained
Plaintiff to play a key role in administering a contract that the United States Agency for
International Development awarded to Defendant to implement a project in Mali. Plaintiff is a
citizen of Congo and worked exclusively in Mali.
Plaintiff alleges that Defendant fired him because of his race and national origin, in violation
of federal and District of Columbia law, and that his termination breached the terms of his
employment. In addition, Plaintiff alleges that Defendant defamed him by telling foreign
government officials and non-profit workers that Plaintiff was fired because he assaulted a
superior. Defendant seeks judgment on the pleadings on these claims. For the reasons that follow,
Defendant’s partial motion for judgment on the pleadings is granted in part and denied in part.
II. BACKGROUND
A. Factual Background
1. Terms of Plaintiff’s Employment
This case originates out of a contract awarded to Defendant Checchi and Company
Consulting, Inc., to administer a project for the United States Agency for International
Development (“USAID”) in Mali, known as the Mali Justice Project (“Project”). See Second Am.
Compl., ECF No. 20 [hereinafter Second Am. Compl.], ¶¶ III, XI; Def.’s Answer, ECF No. 21
[hereinafter Answer], ¶ III. The terms of Defendant’s contract with USAID are contained in a
“Task Order” signed by Checchi Vice President James L. Agee and a USAID representative. See
Second Am. Compl. ¶ XI; Second Am. Compl., Ex. 1, ECF No. 20-1 [hereinafter Pl.’s Exs.], at 7–
8. 1 Under the terms of the Task Order, the Mali Justice Project was to commence on December 8,
2015, and run for three to five years. Pl.’s Exs. at 7; see Second Am. Compl. ¶ XVIII n.3.
In or around December 2015, Defendant hired Plaintiff Oliver Kambala wa Kambala, a
citizen of Congo who is black, to help run the Project. Second Am. Compl. ¶¶ I, III, XXXI(c); see
Pl.’s Exs. at 1–7. The parties entered into a written “Employment Agreement,” dated December 11,
2015, that memorializes the terms of Plaintiff’s employment. Pl.’s Exs. at 1. Signed by Plaintiff
and Agee, the Employment Agreement assigned Plaintiff the position of “Deputy Chief of
Party/Component 2 Leader” for a term of one year, beginning January 4, 2016, although the contract
could be extended by mutual agreement. Id. at 1, 5.
This case turns on two provisions of the Employment Agreement. The first is Article 8 of
the Employment Agreement, titled “Termination Conditions,” which lists the conditions under
which Defendant or Plaintiff could terminate their relationship. Id. at 2–3. The Article contains
1
All pincites to Plaintiffs’ exhibits, which are attached to his Second Amended Complaint, are to the CM/ECF-
generated page number.
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four subsections. The first three set forth specific circumstances under which either Defendant or
Plaintiff could end their arrangement, for example, if Defendant did not pay Plaintiff, if Plaintiff
violated a rule of conduct contained in the Task Order, or if USAID requested a personnel change.
Id. None of those three subsections are pertinent to the parties’ dispute, however. The key
subsection is the final one, 8(D), which grants both parties the power to terminate the relationship
“with or without cause by written notice of at least thirty (30) days in advance.” Id. at 3. Defendant
would invoke subsection 8(D) some 10 months later when it terminated Plaintiff. Answer ¶ XIX.
The second critical provision of the Employment Agreement is Article 14, titled
“Controlling Instruments.” Pl.’s Exs. at 4. That Article makes clear that the “Prime Contract”—
that is, the Task Order under which USAID hired Defendant—also potentially contains terms that
governed Plaintiff’s employment. Article 14 states, in relevant part: “In the event of a conflict
between the Prime Contract and this Agreement, the Prime Contract shall control.” Id. The Task
Order, as it turns out, contains a provision that addresses the termination of certain key employees,
including Plaintiff. Id. at 8. Clause F.7, titled “Key Positions/Personnel Requirements,” states
that certain positions and persons named to those positions are “considered essential to the
successful implementation of the contract.” Id. The Clause goes on to state:
Prior to replacing any of the specified individuals, the Contractor
must notify both the CO and the COR reasonably in advance and as
soon as possible, and must submit written justification (including
proposed substitutions) in sufficient detail to permit evaluation of
the impact on the contact. No replacement will be made by the
Contractor without the written consent of the Contracting Officer.
Id. Plaintiff is expressly identified as a “key” person whose potential removal is subject to the
terms of Clause F.7.
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2. Plaintiff’s Termination
Plaintiff moved from South Africa to Mali to begin work for Defendant, and took steps to
relocate his wife and children to Mali as well. Second Am. Compl. ¶¶ XV, XVI. During his
tenure, Plaintiff was involved in an altercation with a white, French co-worker, Francis Saudubray.
Second Am. Compl. ¶¶ XIX, XX; Answer ¶¶ XIX, XX. As Plaintiff tells it, Saudubray “stormed
into [Plaintiff’s] office” on October 13, 2016, and began “insulting [Plaintiff], claiming that
[Plaintiff] was incompetent” because he had not invited Saudubray to a recent work meeting.
Second Am. Compl. ¶ XX. Saudubray “pointed his hands at [Plaintiff’s] face, shouting at [him]
and calling [him] all sorts of names.” Id. When Plaintiff asked Saudubray to leave, “[a]n
altercation occurred between” the two. Id.
Saudubray evidently reported a different story to Defendant, claiming that Plaintiff
assaulted him. Id. ¶ XX; Answer ¶ XX. This prompted Defendant to dispatch Senior Project
Manager Kelly Gavagan from its District of Columbia office to Mali on October 17, 2016. Second
Am. Compl. ¶ XXV; Answer ¶¶ XIX, XXV. Gavagan interviewed Plaintiff and others who were
aware of the incident, though Gavagan did not speak to everyone that Plaintiff suggested might
have relevant information. Second Am. Compl. ¶ XXV; Answer ¶ XXV.
Defendant fired Plaintiff soon after. On October 19, 2016, Gavagan told Plaintiff that
Defendant’s “Main Office in D.C. [had] decided to terminate [Plaintiff’s] employment
agreement,” effective the very next day. Second Am. Compl. ¶ XXVIII; Answer ¶ XXVIII. A
termination letter, on company letterhead, dated October 20, 2016, signed by Agee and bearing
Defendant’s Washington D.C. address, followed Gavagan’s notification of termination. Id.
¶ XXIX; Answer ¶ XXIX; Def.’s Errata, ECF No. 23, Attach. 1, ECF No. 23-1 [hereinafter
Termination Letter]. The letter stated that Defendant was firing Plaintiff, effective immediately,
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pursuant to Article 8(D)—the at-will provision—of the parties’ Employment Agreement. Id.
¶ XXIX; Answer ¶ XXIX; Termination Letter. The letter did not explicitly state that Plaintiff had
been fired because of the altercation with Saudubray, nor did it reference the incident. Termination
Letter; see also Answer ¶ XXXI(b) (“Checchi Consulting admits that it terminated Plaintiff’s
employment in accordance with Article 8(D) of the Employment Agreement and that it disciplined
no one for what transpired between Plaintiff and [Francis] Saudubray.”).
Defendant allegedly then told others about Plaintiff’s termination. According to Plaintiff,
at a November 25, 2016, Rule of Law meeting at the Dutch Embassy in Bamako, Mali, an unnamed
“Checchi representative” “communicated about [Plaintiff’s] departure from Mali as a result (1) of
[Plaintiff] beating up [his] superior and (2) being terminated by the employer for that reason.”
Second Am. Compl. ¶ XXXIII(a). A “dozen” representatives from embassies, countries, aid
organizations, and the United Nations attended the meeting, although Plaintiff does not identify
by name the people who heard the alleged defamatory statement. Id. But, according to Plaintiff,
the meeting’s organizer, Roelof Havemann, the First Secretary of the Dutch Embassy, either heard
the statement directly or got wind of it, because Havemann confirmed to Plaintiff what the
“Checchi representative” had said. Id. Plaintiff suspects that the story eventually reached two
potential employers because they did not hire him for open positions that he sought after his
termination. Id. ¶ XXXIII(b).
B. Procedural History
On March 10, 2017, Plaintiff, proceeding pro se, sued Defendant over his termination. See
Compl., ECF No. 1. He amended his complaint approximately three weeks later. See Am. Compl.,
ECF No. 4. In response, Defendant sought a court order enjoining a related arbitration that Plaintiff
had initiated. See Def.’s Mot. to Enjoin Arbitration, ECF No. 8, at 4–5. The court granted the motion
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on May 4, 2017, finding that Plaintiff had waived his right to arbitrate by filing suit. See Mem. Op.
and Order, ECF No. 15.
In turn, Plaintiff filed a Second Amended Complaint on May 9, 2017, which advanced
additional allegations and named Checchi, Agee, and Gavagan as defendants. See Second Am.
Compl. The Second Amended Complaint contains the following claims: (1) breach of contract
and promissory estoppel; (2) tortious interference with contract and/or tortious interference with
business expectancy; (3) discrimination in violation of Title VII violation, 42 U.S.C. § 2000e et
seq.; (4) discrimination in violation of the District of Columbia Human Rights Act, D.C. Code
§ 2-1401.01 et seq.; and (5) defamation. Id. Defendant Checchi answered on May 23, 2017,
and filed a Motion for Judgment on the Pleadings that same day. Answer; Def.’s Mot. for J. on
Pleadings, ECF No. 22 [hereinafter Def.’s Mot.], Def.’s Mem. of Points and Authorities in Supp.,
ECF No. 22-1 [hereinafter Def.’s Mem.]. That motion is now ripe for the court’s consideration.
III. LEGAL STANDARD
A party may move for judgment on the pleadings, pursuant to Federal Rule of Civil
Procedure 12(c), after the pleadings are closed but early enough so as not to delay trial. Fed. R.
Civ. P. 12(c). The standard for reviewing a motion for judgment on the pleadings is essentially
the same as that for motions to dismiss under Rule 12(b)(6). Brown v. Dist. of Columbia, 249 F.
Supp. 3d 439, 442 (D.D.C. 2017). The court construes the complaint in the light most favorable
to the non-moving party and accepts as true all factual inferences drawn from well-pleaded factual
allegations. Coleman v. Dist. of Columbia, 828 F. Supp. 2d 87, 90 (D.D.C. 2011). Judgment is
appropriate when a complaint fails “to state a claim upon which relief can be granted.” Id. (internal
citation and quotation marks omitted). As with a motion to dismiss, the court should grant
judgment on the pleadings if the facts alleged in the complaint do not “raise a right to relief above
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the speculative level” or if they “fail to state a claim to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). But while the granting of a motion to dismiss
“typically merely means that the plaintiff has failed to satisfy one of the procedural prerequisites”
when asserting a claim for relief, the granting of a motion for judgment on the pleadings
“theoretically is directed towards a determination of the substantive merits of the controversy[.]”
United States v. All Assets Held at Bank Julius, 251 F. Supp. 3d 82, 88 (D.D.C. 2017) (quoting 5C
CHARLES ALAN WRIGHT , ARTHUR R. MILLER & MARY KAY KANE, FEDERAL P RACTICE AND
P ROCEDURE § 1369 (3d ed. 2017)). Consequently, courts grant motions under Rule 12(c) only
when “it is clear that the merits of the controversy can be fairly and fully decided in this summary
manner.” Id. (quoting Wright et al., supra, § 1369)).
When evaluating a motion for judgment on the pleadings, the court may rely on the
pleadings, the exhibits to the pleadings, and any judicially noticeable facts to assess whether the
movant has met its burden. See Allen v. U.S. Dep’t of Educ., 755 F. Supp. 2d 122, 125 (D.D.C.
2010). Here, the court considers Plaintiff’s Second Amended Complaint, the exhibits attached
thereto, and Defendant’s Answer.
IV. DISCUSSION
A. Title VII Claim
The court begins with Plaintiff’s claim under Title VII. Plaintiff alleges that Defendant
fired him because he is black and because he is a citizen of Congo, in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. See Second Am. Compl. ¶¶ IX; XXXI(a), (c),
(d). Defendant seeks judgment on the pleadings as to that claim on the ground that Plaintiff, as a
non-U.S. citizen who did not work in the United States, is not protected by Title VII.
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Title VII prohibits discrimination in employment based on an “individual’s race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). The statute’s protections do not,
however, extend to all persons who are employed by a covered employer. By its very terms, Title
VII “affirmatively grants protection only to ‘a citizen of the United States’” with respect to
employment in a foreign country. Shekoyan v. Sibley Int’l, 409 F.3d 414, 421 (D.C. Cir. 2005)
(quoting 41 U.S.C. § 2000e(f)). Thus, United States citizens working for covered employers outside
of the country fall within the protections of Title VII, see 42 U.S.C. § 2000e(f), but similarity situated
non-United States citizens do not, 42 U.S.C. § 2000e-1(a); see also 29 C.F.R. § 1614.103(d)(4)
(stating that “[a]liens employed in positions, or who apply for positions, located outside the United
States” are not protected). A covered employer, therefore, cannot be subject to Title VII liability
for discriminatory acts against a non-United States citizen employee working abroad.
A straightforward application of the foregoing principles compels dismissal of Plaintiff’s
Title VII claim. Plaintiff is a citizen of Congo who was employed by a United States corporation
in Mali. Second Am. Compl. ¶ I. He therefore does not enjoy the protections of Title VII. See
Shekoyan, 409 F.3d at 422 (concluding that non-resident foreign alien was outside Title VII’s
protections even though employer’s hiring decision and subsequent employment decisions about
the employee were made within the United States).
Plaintiff contends that because the Equal Employment Opportunity Commission
(“EEOC”) issued him a right-to-sue letter, instead of rejecting his claim outright, he is eligible for
Title VII’s protections. See Pl.’s Opp’n to Def.’s Mot. for J. on the Pleadings, ECF No. 25
[hereinafter Pl.’s Opp’n], at 23–24. But this argument misapprehends the meaning of a right-to-
sue letter. The purpose of such a letter is merely to notify an employee that the EEOC has decided
against filing a civil action on the employee’s behalf. See 42 U.S.C. § 2000e-5(f)(1). An
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employee’s receipt of the right-to-sue letter also starts the time within which he must bring suit in
federal court. 29 U.S.C. § 626(e). A right-to-sue letter cannot, however, confer rights that the
statute does not. The letter Plaintiff received, therefore, does not grant him a Title VII claim. See,
e.g., Boustany v. Xylem Inc., 235 F. Supp. 3d 486, 491–96, 498 (S.D.N.Y. 2017) (dismissing Title
VII claim brought by non-U.S. citizen who was employed outside of the United States because the
plaintiff was outside the reach of Title VII, even though plaintiff had received a right-to-sue letter).
B. District of Columbia Human Rights Act Claim
Turning next to Plaintiff’s claim under the District of Columbia Human Rights Act
(“DCHRA”), Plaintiff alleges, as he does in his Title VII claim, that Defendant fired him because of
his race and national origin in violation of the DCHRA, D.C. Code § 2-1402.11(a)(1). Second Am.
Compl. ¶¶ XXXI(c); XXXII. Defendant asserts that Plaintiff cannot advance a discrimination claim
under the DCHRA because that statute does not have “extraterritorial” application—that is, it does
not have application outside the United States. See Def.’s Mem. at 10.
A discrimination claim can arise under the DCHRA when either the discriminatory
employment decision was made in the District of Columbia or the effects of that discriminatory
decision were felt in the in the District. Monteilh v. AFSCME, AFL-CIO, 982 A.2d 301, 304–05
(D.C. 2009). In Monteilh, the D.C. Court of Appeals considered whether a plaintiff who lived and
worked outside of the District could bring a DCHRA claim against his District of Columbia-based
employer. Id. at 301–02. The plaintiff “never performed any work, nor applied for any position,
within the District of Columbia.” Id. at 302. Yet, the court in Monteilh concluded that the
plaintiff’s claim fell within the scope of the DCHRA because his employer “ha[d] made a
discriminatory decision in the District of Columbia, although the effects have been felt elsewhere.”
Id. at 304. The court explained that this interpretation of the DCHRA “is most faithful to the
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statutory language and purpose.” Id. The court observed that the statute’s text announces a “broad
prohibition” against discriminatory acts by employers and that the D.C. Council’s intent in passing
the statute was to eliminate discrimination in the District of Columbia. Id. “The gravamen of the
statutory proscription is discrimination as defined; the happenstance of where the conduct works
its consequences was not reasonably meant by the Council to be ‘the critical factual issue.’” Id.
(citation omitted). Thus, the court held that although merely alleging that an employer is
headquartered in the District of Columbia or has offices here would not be enough to implicate the
DCHRA, the DCHRA’s protections apply so long as the alleged discriminatory decision is made
in the District of Columbia, or its effects are felt here, or both. Id. at 305. Ultimately, in Monteilh,
the court remanded the matter for further fact development.
Applying Monteilh here, Plaintiff has stated a claim under the DCHRA. Specifically,
Plaintiff alleges facts that, if true, establish that Defendant’s decision to terminate him was made
within the District of Columbia. First, Plaintiff alleges that Gavagan, who investigated the
altercation in Mali, “announced to me that Checchi Main Office in D.C.” made the decision to
terminate him. Second Am. Compl. ¶ XXVIII. Defendant admits this allegation. Answer
¶ XXVIII. Second, the October 20, 2016, termination letter suggests that the decision to fire
Plaintiff was made in the District of Columbia. The letter was printed on company letterhead
bearing a Washington, D.C., address and was signed by Defendant’s Vice President, Agee, whose
office Defendant admits is located at the company’s Washington, D.C., address. Second Am.
Compl. ¶¶ V, XXIX; Answer ¶¶ V, XXIX; Termination Letter. These allegations are sufficient,
at this early stage of the litigation, to situate the alleged discriminatory act in the District of
Columbia and therefore permit Plaintiff’s DCHRA claim to proceed.
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Defendant advances a number of arguments to support its view that the DCHRA does not
have “extraterritorial” reach and therefore is inapplicable here. First, Defendant urges the court to
interpret the DCHRA consistently with Title VII, as the D.C. Court of Appeals often does, and
conclude that the DCHRA also does not to reach discrimination against non-U.S. citizens working
abroad. Def.’s Mem. at 8–9. While it is true that the D.C. Court of Appeals generally follows
cases construing Title VII when interpreting and applying the DCHRA, that practice holds true
only insofar as the two acts “use similar words and reflect a similar purpose.” Estenos v.
PAHO/WHO Federal Credit Union, 952 A.2d 878, 886 (D.C. 2008). Here, following Title VII
cases would be inappropriate because the text of the two statutes differ in a critical respect. While
Title VII expressly excludes non-U.S. citizens employed in a foreign country from its definition
of “employee,” see 42 U.S.C. § 2000e(f), no such limitation exists in the DCHRA’s definition of
“employee,” see D.C. Code § 2-1401.02(9) (defining an “employee” to mean “any individua l
employed by or seeking employment from an employer,” except unpaid interns). Thus, cases
interpreting Title VII’s inapplicability to non-U.S. citizens abroad offer no guidance about how to
interpret the applicability of the DCHRA to such persons.
Next, Defendant contends that the principle of statutory construction that presumes
Congress did not intend for a federal statute to apply extraterritorially, unless a contrary intent
appears, should be applied to legislation drafted by the D.C. Council. And, because the DCHRA
contains no clear expression of an intent to apply beyond the territorial jurisdiction of the United
States, Defendant maintains, the Act has no application in this case. Def.’s Mem. at 9 (citing
Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247, 255 (2010)). That interpretative principle,
however, is not controlling here because Plaintiff is not asking the court to apply the DCHRA
outside the territory of the United States. See Envtl. Def. Fund, Inc. v. Massey, 986 F.2d 528, 531
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(D.C. Cir. 1993) (stating that “an extraterritorial application of a statute involves the regulation of
conduct beyond U.S. borders”). To the contrary, Plaintiff’s claim is that Defendant engaged in a
discriminatory act—firing him because of his race and national origin—within the District of
Columbia, where the termination decision was made. Accordingly, the presumption against
extraterritorial application of federal law has no application here and thus does not support
Defendant’s preferred interpretation of the DCHRA. See id. (observing that “the presumption
against extraterritoriality is not applicable when the conduct regulated by the government occurs
within the United States”).
Finally, Defendant points to the D.C. Council’s expression of intent contained in the
DCHRA as evidence of its limited application. Def.’s Mem. at 10. Specifically, Defendant cites
two D.C. Code provisions: (1) D.C. Code § 2-1401.01, titled “Intent of Council,” which provides
that “[i]t is the intent of the Council of the District of Columbia, in enacting this chapter, to secure
an end in the District of Columbia to discrimination for any reason other than that of individua l
merit” (emphasis added); and (2) D.C. Code § 2-1402.01, which states that “[e]very individua l
shall have an equal opportunity to participate fully in the economic, cultural and intellectual life
of the District and to have an equal opportunity to participate in all aspects of life” (emphasis
added). Defendant relies on the italicized portions of these provisions as evidence that the Council
did not intend to apply the DCHRA beyond the District’s borders. Def.’s Mem. at 10. The D.C.
Court of Appeals, however, rejected that very argument in Monteilh. 982 A.2d at 304–05 (noting
the defendant’s argument invoked D.C. Code § 2-1402.01). It therefore gains no traction here.
Accordingly, the court concludes that the DCHRA reaches the discriminatory conduct
alleged by Plaintiff. He therefore has stated a plausible claim under that statute.
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C. Defamation Claim
Next up is Plaintiff’s defamation claim. Plaintiff alleges that Defendant defamed him when
a “representative” of the company told unspecified attendees at the Rule of Law meeting held at
the Dutch Embassy in Bamako, Mali, on November 25, 2016, that Plaintiff had been fired because
he had assaulted his supervisor. Second Am. Compl. ¶ XXXIII(a). Although Plaintiff does not
identify the attendee-listeners by name or position, he does allege the defamatory statement was
made to various dignitaries and that the First Secretary of the Dutch Embassy, who convened the
meeting, confirmed that Defendant had spread the story. Id. Defendant contends that Plaintiff’s
claim fails for lack of particularity. 2 Def.’s Mem. at 10–12.
To state a claim for defamation under District of Columbia law,3 a plaintiff must allege:
(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 was at least negligent; and (4) either the statement was actionable as a matter of law
irrespective of special harm, or that its publication caused special harm. Rosen v. Am. Israel Pub.
Affairs Comm., 41 A.3d 1260, 1256 (D.C. 2012). A statement is defamatory “if it tends to injure
[the] plaintiff in his trade, profession or community standing, or lower him in the estimation of the
2
Defendant appears to construe the Second Amended Complaint as containing two defamation claims: one,
concerning Plaintiff’s unsuccessful job applications, and the second concerning the statement allegedly made at the
November 25, 2016, meeting. See Def.’s Mem. at 11. But Plaintiff’s allegation concerning his unsuccessful job
applications arise out of the statement at the November 25 meeting. See, e.g., Second Am. Compl. ¶ XXXIII(b) (“I
am of the view that such silence following my application . . . is a result of the change of perception on my person by
the outgoing director following the slander of my name in the rule of law coordination meeting who in turn
communicated the information [to] the people in charge of recruitment . . . .”). Therefore, the court only considers
the alleged statement made at the Dutch Embassy as the basis for Plaintiff’s claim.
3
Notwithstanding the utterance of the alleged statement in Mali, the parties both assume that District of Columbia
law applies. See Def.’s Mem. at 11 n.8; Pl.’s Opp’n at 26. “Generally, when the parties do not raise the issue of the
applicability of foreign law, a court is under no obligation to apply foreign law and may instead apply the law of the
forum.” Oparaugo v. Watts, 884 A.2d 63, 70 (D.C. 2005) (quoting Rymer v. Pool, 574 A.2d 283, 285 (D.C. 1990)).
In light of that general rule and the briefing on this issue, the court applies District of Columbia law to Plaintiff’s
defamation claim.
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community.” Competitive Enter. Inst. v. Mann, 150 A.3d 1213, 1241 (D.C. 2016) (alteration in
original) (quoting Guilford Transp. Indus., Inc. v. Wilner, 760 A.2d 580, 594 (D.C. 2000)).
Defendant argues that Plaintiff’s claim falls short because Plaintiff has not identified the
“allegedly false words,” the name of the alleged speaker, and the names of the listeners who heard
the statement. Def.’s Mem. at 12. Defendant believes these deficiencies are fatal to Plaintiff’s
claim because it reads District of Columbia law as requiring the pleading of defamation claims by
alleging the time, place, content, speaker, and listener of a defamatory statement. Id. at 10–12.
This argument misses the mark. For starters, contrary to Defendant’s reading of the law,
the D.C. Court of Appeals has rejected the imposition of any heightened pleading standard with
respect to defamation claims, including that the plaintiff identify the speaker and the listener. See
Clampitt v. Am. Univ., 957 A.2d 23, 43 (D.C. 2008); Oparaugo v. Watts, 884 A.2d 63, 76 (D.C.
2005); see also Intelsat USA Sales Corp. v. Juch-Tech Inc., 935 F. Supp. 2d 101, 117–18 (D.D.C.
2013) (explaining that cases stating that District of Columbia law requires the “time, place, content,
speaker, and listener” to state a defamation claim are mistaken). Rather, District of Columbia courts
“focus . . . on whether ‘the factual allegations in the appellant’s complaint are sufficient to permit
the opposing party to form responsive pleadings[.]’” Solers, Inc. v. Doe, 977 A.2d 941, 948 (D.C.
2009) (quoting Oparaugo, 884 A.2d at 76–77). Plaintiff readily has met that standard. More
importantly, the pleading requirements under District of Columbia law are inapplicable because
Plaintiff has filed suit in federal court, where the Federal Rules of Civil Procedure govern. See
Fed. R. Civ. P. 1 (“These rules govern the procedure in all civil actions and proceedings in the
United States district courts . . . .”). Under Rule 8(a), Plaintiff is required only to provide a “short
and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). Plaintiff has satisfied this requirement. He has alleged that a representative of
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Defendant told “all parties” at the November 25, 2016, Rule of Law meeting at the Dutch Embassy
in Mali that Plaintiff was fired for assaulting a superior. Second Am. Compl. ¶ XXXIII(d)–(f).
Plaintiff further avers that this statement was false, “made out of malice,” and that no privilege
applies to the statement. Id. ¶ XXXIII(c). Those allegations are sufficient to state a plausible
claim of defamation and to give Defendant adequate notice of that claim. Plaintiff therefore may
proceed with his defamation cause of action.
D. Breach of Contract and Promissory Estoppel Claims
The court now moves to Plaintiff’s contract and quasi-contract claims. First, Plaintiff
alleges that by firing him, Defendant breached both an express contract and an implied-in-fact
contract. His express contract claim is based on the Task Order, which states that the Mali Justice
Project would run for either three or five years. 4 Id. ¶¶ XVIII n.3; XXX(a). Plaintiff contends that
this rebuts any presumption that his employment was at will, and thus, that Defendant could not
fire him without cause. See id. ¶ XXX(a). Plaintiff also alleges that Defendant breached an
implied-in-fact contract that was created by Defendant’s communications with him, including
statements about his benefits and the responsibilities he would have. Id. ¶¶ XVIII, XXX(a)–(b).
Finally, Plaintiff alleges a promissory estoppel claim, based on the promises that Defendant made
to him about the length of his employment and the benefits he would receive. Id. ¶ XVIII.
To prevail on a breach of contract claim, a party must establish: (1) a valid contract
between the parties; (2) an obligation or duty arising out of the contract; (3) a breach of that duty;
and (4) damages caused by breach. Tsintolas Realty Co. v. Mendez, 984 A.2d 181, 187 (D.C.
2009). An implied-in-fact contract is “inferred from the conduct of the parties in the milieu in
4
Construing Plaintiff’s complaint liberally, as this court must, Plaintiff is alleging that he was a third-party beneficiary
of the Task Order. See Corp. Sys. Res. v. Wash. Metro. Area Trans. Auth., 31 F. Supp. 3d 124, 131–32 (D.D.C. 2014)
(discussing when a non-party may bring a breach of contract claim as a third-party beneficiary to the contract).
Defendant does not challenge that Plaintiff was a third-party beneficiary of the Task Order.
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which they dealt.” Vereen v. Clayborne, 623 A.2d 1190, 1193 (D.C. 1993) (citation omitted).
Plaintiff’s promissory estoppel claim is an alternative to his express contract claim. See Daisley
v. Riggs Bank, 372 F. Supp. 2d 61, 71 (D.D.C. 2005) (“District of Columbia law presupposes that
an express, enforceable contract is absent when the doctrine of promissory estoppel is applied.”
(citation omitted)). To allege promissory estoppel, a plaintiff must establish: (1) the existence of
a promise, (2) that the promise reasonably induced reliance on it, and (3) that the promisee relied
on the promise to his detriment. Osseiran v. Int’l Dev. Fin. Corp., 498 F. Supp. 2d 139, 147
(D.D.C. 2007).
Defendant contends that the at-will provision in Article 8(D) of the Employment
Agreement, which Defendant cited in its termination letter, dooms Plaintiff’s claims. That
provision states:
Notwithstanding anything to the contrary, either party may
terminate this contract with or without cause by written notice of at
least thirty (30) days in advance, it being understood that in the event
of a termination without cause by the Employee, the Employee shall
forfeit all accrued leave.
Pl.’s Exs. at 3. Defendant further notes that Article 15 of the Employment Agreement states that
the contract could be modified only via a signed writing, and Plaintiff has not alleged that such an
instrument exists. Def.’s Mem. at 6–7; see Pl.’s Exs. at 4.
Defendant’s argument, however, overlooks other critical language in the Employment
Agreement and the Task Order. Article 14 of the Employment Agreement states that “[i]n the
event of a conflict between the [Task Order] and this Agreement, the [Task Order] shall control.”
Pl.’s Exs. at 4. Here, there is at least an arguable conflict between the termination conditions in
the Employment Agreement and those in the Task Order as they relate to Plaintiff. Although the
Employment Agreement allows Defendant to unilaterally end Plaintiff’s employment for any
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reason, the Task Order would appear to impose more stringent requirements for termination.
Under clause F.7 of the Task Order, Plaintiff is designated as one of four “key” personnel. Pl.’s
Exs. at 8. As to such persons, the Task Order requires Defendant to notify USAID before replacing
any of those employees and to “submit written justification (including proposed substitutions) in
sufficient detail to permit evaluation of the impact on the contract.” Id. The Task Order further
states that “[n]o replacement may be made by the Contractor without the written consent of the
Contracting Officer.” Id. Both parties are silent as to whether Defendant submitted the required
written notice and justification and whether USAID approved the personnel decision. Thus, at this
stage of the litigation, it is plausible that the Task Order’s language controls, and that Defendant
breached its express contract with Plaintiff when it terminated him. Therefore, the court denies
Defendant’s motion on Plaintiff’s express contract claim. 5
E. Tortious Interference with Contract and Business Expectancy Claims
That leaves for last Plaintiff’s tortious interference with contract and tortious interference
with business expectancy claims. 6 Defendant does not formally seek judgment with respect to that
claim, explaining that it did not do so because the pertinent portion of the Second Amended
Complaint only names Agee and Gavagan—not Checchi—and therefore the claim lies only against
5
Because the court has found a plausible claim for breach of an express contract, it need not consider at this stage
Plaintiff’s alternative implied-in-fact contract and promissory estoppel claims. The court construes those claims as
alternatives to his express contract claim because both deal with the length and conditions of his employment. See
Casciano v. JANSEN Rides, LLC, 109 F. Supp. 3d 134, 141 n.2 (D.D.C. 2015) (stating “that the existence of an express
contract precludes the existence of an implied-in-fact contract dealing with the same subject matter” (quoting Schism
v. United States, 316 F.3d 1259, 1278 (Fed. Cir. 2012))); Plesha v. Ferguson, 725 F. Supp. 2d 106, 112 (D.D.C. 2010)
(stating that District of Columbia courts generally prohibit the claim of promissory estoppel when there is an express
contract governing the parties’ conduct).
6
The Second Amended Complaint does not make clear whether Plaintiff is alleging a tortious interference with
contract claim, a tortious interference with business expectancy claim, or both. Defendant assumes Plaintiff intends
to state the former, see Def.’s Reply to Pl.’s Opp’n, ECF No. 27, at 2 n.3, while Plaintiff contends he has alleged both,
see Pl.’s Opp’n at 1. In light of Defendant’s briefing, the court need not decide whether Plaintiff is proceeding under
one or both theories.
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the individual defendants, neither of whom have been served. See Def.’s Reply to Pl.’s Opp‘n,
ECF No. 27, at 2 n.3; see also Second Am. Compl. ¶ XXX(d).
Defendant’s reading of the Second Amended Complaint is too narrow. This court is
obligated to construe liberally documents filed by pro se plaintiffs. See Erickson v. Pardus, 551
U.S. 89, 94 (2007). Construing the Second Amended Complaint in that way, Plaintiff has stated
a tortious interference claim against Defendant under a respondeat superior theory of liability.
This theory allows an employer to “be held liable for the acts of his employees committed within
the scope of their employment.” Brown v. Argenbright Sec., Inc., 782 A.2d 752, 757 (D.C. 2001)
(citation omitted). Plaintiff alleges that “Gavagan and Agee should be liable for their own torts,
in addition to the tort of Checchi Consulting as a corporation, even if they were just agents acting
on behalf of their employer.” Second Am. Compl. ¶ XXX(d) (emphasis added). Construing that
allegation liberally, Plaintiff seeks to hold not only Agee and Gavagan liable for their individua l
tortious acts, but also Defendant Checchi under a theory of respondeat superior liability. Plaintiff’s
tortious inference claim therefore may proceed against Defendant Checchi.
V. CONCLUSION AND ORDER
For the foregoing reasons, Defendant’s Motion for Judgment on the Pleadings is granted
as to Plaintiff’s Title VII claim. That claim is dismissed with prejudice. Defendant’s Motion is
denied with respect to all other claims.
Dated: December 1, 2017 Amit P Mehta
United States District Judge
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