Arias v. Marriott International, Inc. ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ROSA ARIAS,
Plaintiff,
v.
MARRIOTT INTERNATIONAL, INC., Civil Action No. 15-1258 (GK)
Defendant.
MEMORANDUM OPINION
Plaintiff Rosa Arias, ("Plaintiff") brings this action
against Defendant, Marriott International, Inc., ("Defendant," or
"Marriott"), for herself and others similarly situated. Ms. Arias
alleges violation of 42 u.s.c. 1981 for discrimination based on
race, national origin and retaliation (Count 1), breach of contract
(Count 2), breach of the implied covenant of good faith and fair
dealing (Count 3), wrongful termination (Count 4), negligence and
negligent misrepresentation of material facts (Count 5) I
aggravated assault (Count 6), fraudulent concealment of material
fact (Count 7), and violation of D.C. Code § 32-1103 (Count 7 1 ) .
1 Plaintiff has asserted two Counts 7 in her Amended Complaint.
This matter is presently before the Court on Defendant's
Motion to Dismiss Plaintiff's Second Amended Complaint ("Mot.")
[Dkt. No. 3 3] .
Upon consideration of the Motion, Opposition, and Reply, the
entire record herein, and for the reasons stated below, Defendant's
Motion is granted in part and denied in part.
I . BACKGROUND
A. Factual Background
Plaintiff Rosa Arias, a Spanish American, has been employed
in the Housekeeping Department at the Defendant's Washington
Marriott at Metro Center ("the Hotel") since 2003. Second Amended
Complaint `` 3, 16, 19 ("SAC") [Dkt. No. 31] . As a housekeeper,
Ms. Arias' duties included cleaning hotel rooms and bathrooms. Id.~ 3. · These duties required her to work with hazardous chemicals
such as furniture polish and antibacterial all-purpose cleaning
agents. Id. `` 3, 17. Ms. Arias asserts that the chemicals required
the use of Personal Protective Equipment ( "PPE") , and that Marriott
withheld the required PPE. Id. `` 3, 16.
Ms. Arias asserts that at some point during her employment,
she experienced severe eye irritation, headaches, respiratory
illness and chest pain. SAC ~4. Although Ms. Arias did not
initially know the cause of her illnesses, she now believes that
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they were related to the hazardous chemicals that she used at work.
Id. `` 3-4, 7.
In early 2015, Ms. Arias requested and was granted a four
month medical leave of absence. SAC ~ 5. She was scheduled to
return to work on May 15, 2015. Id. While on leave, Ms. Arias was
diagnosed with either heart or respiratory complications. Id. ~ 6.
On March 31, 2015, while still on leave, Ms. Arias gave
deposition testimony in another case, Sanchez v. Mariott
Corporation, 12-cv-1577, (D.D.C.), a separate Title VII suit
against Defendant's affiliate Marriott Corporation, about the
chemicals she used at the Hotel and the use of those chemicals
without PPE. SAC `` 7-12. Her testimony included statements that
she and her coworkers told Marriott that the chemicals were making
them sick and that Marriott never trained the Housekeeping
Department on the hazards of the chemicals. Id. ~ 9. Ms. Arias
asserts that Defendant obviously had notice of her deposition
testimony in the Sanchez case. Id. ~ 30.
On May 14, 2015, one day before Ms. Arias was scheduled to
return to work, she received a phone message from the Defendant's
representative informing her that her employment was terminated
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and someone else had taken her position. SAC~ 14. However, later 2 ,
she was told that her termination was rescinded. Id.In July, August and September 2015, Ms. Arias communicated
with the Hotel about returning from her leave of absence, and
whether she would have access to PPE upon her return. SAC `` 15-
16, 19. Ms. Arias asserts that at this point, her leave of absence
was unpaid. Id. `` 15-16. On September 20, 2015, Ms. Arias returned
to work, and she remains employed by the Hotel. Motion to Dismiss
Plaintiff's Second Amended Complaint at 3 ("Mot.") [Dkt. No. 33-
1]
B. Procedural Background
On or about June 15, 2015, Ms. Arias filed a Complaint in the
Superior Court of the District of Columbia. See Corrected Notice
of Removal at 1 [Dkt. No. 2]. On August 8, 2015, Defendants filed
a Notice of Removal from D.C. Superior Court [Dkt. No. 1].
On August 26, 2015, Ms. Arias filed a Consent Motion for Leave
to File an Amended Complaint ("Consent Motion to Amend") [Dkt. No.
8]. On August 27, 2015, the Court granted Ms. Arias' Consent Motion
to Amend [Dkt. No. 9], and she filed the First Amended Complaint
[Dkt. No. 10]. On April 21, 2016, this Court granted Ms. Arias'
Motion for Leave to File a Second Amended Complaint. April 21,
2The Second Amended Complaint gives no indication as to when Ms.
Arias' alleged termination was rescinded.
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2016 Order [Dkt. No. 30]. That same day, she filed the Second
Amended Complaint, which is the operative Complaint.
On May 5, 2016, Marriott filed a Motion to Dismiss Plaintiff's
Second Amended Complaint [Dkt. No. 33]. On June 1, 2016, Ms. Arias
filed her Opposition ("Opp.") [Dkt. No. 37]. On June 13, 2016,
Marriott filed its Reply ("Reply") [Dkt. No. 38].
On August 12, 2016, Ms. Arias filed a Notice of Dismissal of
Claims from Plaintiff's Second Amended Complaint ("Notice of
Dismissal") [Dkt. No. 40-1] and voluntarily dismissed three of her
eight claims.
II. STANDARD OF REVIEW
To survive a motion to dismiss under Rule 12(b) (6), a
plaintiff need only plead "enough facts to state a claim to relief
that is plausible on its face" and to "nudge[] [his or her] claims
across the line from conceivable to plausible." Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007). "[O]nce a claim has been
stated adequately, it may be supported by showing any set of facts
consistent with the allegations in the complaint." Id. at 563.
Under the Twombly standard, a "court deciding a motion to
dismiss must not make any judgment about the probability of the
plaintiffs' success ... [,] must assume all the allegations in the
complaint are true (even if doubtful in fact) ... [, and] must give
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the plaintiff the benefit of all reasonable inferences derived
from the facts alleged." Aktieselskabet AF 21. November 2001 v.
Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir. 2008) (internal
quotation marks and citations omitted) . A complaint will not
suffice, however, if it "tenders 'naked assertion[s]' devoid of
'further factual enhancement.'" Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Twombly, 550 U.S. at 557).
III. ANALYSIS
A. Counts 5 and Both Counts 7
Ms. Arias has voluntarily dismissed her claims of negligence
and negligent misrepresentation of material facts (Count 5),
fraudulent concealment of material fact (Count 7), and violation
of D.C. Code § 32-1103 (Count 7). Notice of Dismissal of Claims
from Plaintiff's Second Amended Complaint ("Notice of Dismissal")
[Dkt. No 40-1]. Thus, the Court will only address the merits of
the remaining five claims.
B. Count 1- Violation of Title VII
1. Racial Discrimination
Ms. Arias alleges violation of Title VII, 42 U.S.C. 1981, for
discrimination based on race, national origin3 and retaliation. In
3 Defendant argues that Ms. Arias cannot make a Title VII claim
based on her national origin. Mot. at 20, citing Amiri v. Securitas
Sec. Servs. USA, Inc., 35 F. Supp. 3d 41, 47 (D.D.C. 2014), aff'd,
608 F. App'x 15 (D.C. Cir. 2015). Ms. Arias does not appear to be
making an argument that she faced discrimination based on being
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order to establish a prima facie case of racial discrimination
under Title VII, a plaintiff must show that "(1) [s]he is a member
of a protected class, (2) [s] he suffered an adverse employment
action, and (3) the unfavorable action gives rise to an inference
;
of discrimination (that is, an inference that [her] employer took
the action because of [her] membership in the protected class) "
Forkkio v. Powell, 306 F.3d 1127, 1130 (D.C. Cir. 2002) . 4
The parties do not dispute that Ms. Arias is a member of a
protected class.
Ms. Arias has also shown that she suffered an adverse
employment action. An adverse employment action is "a significant
change in employment status, such as hiring, firing, failing to
promote, reassignment with significantly different
from Nicragua separate and apart from discrimination based on race.
Therefore, the Court will consider only the claim of discrimination
based on race.
4 Ms. Arias' reliance on Sparrow v. United Air Lines, Inc., 216
F.3d 1111 (D.C. Cir. 2000) is not sufficient to overcome her
pleading deficiencies. Ms. Arias is correct that she need not plead
facts showing each of these elements in order to def eat a Motion
to Dismiss. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 515 (2002).
However, her Complaint still must put the Defendant on notice of
her legal theory and must contain allegations entitling her to
offer evidence to support the claims. Id. Ms. Arias does claim
that she is Hispanic, but does not claim that she was fired because
of her race. Instead, she argues that she was fired because of her
participation in a protected activity. Opp. at 8. Consequently,
Ms. Arias' allegations entitle her to produce evidence on her claim
of retaliation, but not of racial discrimination.
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responsibilities, or a decision causing a significant change in
benefits." Douglas v. Preston, 559 F.3d 549, 552 (D.C. Cir. 2009).
Ms. Arias alleges that on May 14, 2015, while she was on
medical leave, Defendant's representative notified her that she
had been terminated. 5 SAC ~ 14. Although Plaintiff concedes that
her termination was rescinded at a later date, she claims that she
was forced to remain on an unpaid leave of absence until her return
to work on September 20, 2015. SAC`` 5, 14-16, 19. As a result of
this unpaid leave, Ms. Arias "was financially distressed" and was
in "emergency need of money to pay her rent and to buy food." SAC
~ 15-16. Unpaid leave for even a month may constitute a materially
adverse employment action. See Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 72 (2006). Therefore, Ms. Arias has adequately
plead this element of racial discrimination.
Ms. Arias must also plead a causal connection between her
race and the materially adverse action. Ms. Arias fails to do so
because she conflates her claims of racial . discrimination and
retaliation under Title VII. Addressing both of her Title VII
claims at once, Ms. Arias argues that she has satisfied the third
5 Defendant denies that Ms. Arias was ever terminated. Mot. at 2,
18, and 22. It is unclear from the Second Amended Complaint whether
Plaintiff was paid while on medical leave, but it is clear that
she was not paid between mid to late May 2015 and September 20,
2015 when she returned to work. SAC `` 5, 14-16, 19
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element of a racial discrimination claim because, "[t]he employer
took material adverse employment action for her (Plaintiff's)
participation in the protected activity." Opp. at 8. Ms. Arias
cites in her Opposition the 44 days between her deposition and the
unpaid leave as evidence of the causal connection between her
proteated status and her unpaid leave, but does not attempt to
connect the employer's racial discrimination to her unpaid leave.
Id.However, in her Second Amended Complaint, Ms. Arias makes no
factual allegations that race was the reason for the Hotel's
actions, and does not identify any disparate treatment between her
and non-Hispanic housekeepers. In fact, Ms. Arias does not identify
the race of any other housekeepers at the Hotel. Consequently, she
has not satisfied the third element of a Title VII racial
discrimination claim.
2. Retaliation
However, Ms. Arias has successfully plead in her Second
Amended Complaint a claim of retaliation under Title VII. In order
to establish a prima f acie case of retaliation, the plaintiff must
demonstrate that he or she engaged in a protected activity and the
employer's retaliation, which was materially adverse, was based on
that activity. See e.g., Johnson v. Perez, 823 F.3d 701, 706 (D.C.
Cir. 2016).
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Marriott does not dispute that Ms. Arias' testimony in a
separate case against Defendant constitutes a protected activity.
Protected activity includes having "made a charge, testified,
assisted, or participated in any manner in an investigation,
proceeding, or hearing" on the basis of discrimination under these
statutes. Jones v. Billington, 12 F.Supp.2d 1, 13 (D.D.C.1997),
aff 'd 1998 WL 389101 (D.C. Cir. 1998). Given the fact that Ms.
Arias testified in Sanchez, there is no question that she has
therefore plead that she engaged in a protected activity.
As demonstrated above, Ms. Arias had some amount of absence
without pay, which, if true, constituted a materially adverse
employment action. See supra at 7-8, 8 n. 5; `` 14-16.
Finally, Ms. Arias has adequately plead a causal connection
between her deposition testimony and her unpaid leave of absence.
Defendant had knowledge of Ms. Arias' deposition in Sanchez. SAC
~ 30. Ms. Arias argues that the 44 days between her deposition in
Sanchez and the call terminating her employment establishes the
causal connection required to plead a claim under Title VII. Opp.
at 8. In the absence of direct evidence, "mere temporal proximity
may establish causation." Keys v. Donovan, 37 F. Supp. 3d 368, 372
(D.D.C. 2014). Thus, viewed in the light most favorable to Ms.
Arias, she has adequately plead a claim for retaliation under Title
VII.
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C. Count 2- Breach of Contract
Defendant has argued that Plaintiff may not bring a claim of
breach of contract because she was an employee at-will. See Daisley
v. Riggs Bank, N.A., 372 F. Supp. 2d 61, 67 (D.D.C. 2005)
("Termination of employment, [] does not breach an at-will
employment contract, because by its very terms the agreement
contemplates that either party may end the employment
relationship, with or without cause.")
Our Court of Appeals has ruled that, "in the absence of
clearly expressed contrary intent. . the parties have in mind
merely the ordinary business contract for continuing employment,
terminable at the will of either party." Minihan v. , Am. Pharm.
Ass'n., 812 F.2d 726, 727 (D.C. Cir. 1987). In other words, there
is a presumption in this jurisdiction that, "unless a contrary
intent is clearly expressed, all employment is at-will." Greene v.
Bowne of New York LLC, 02-cv-1263, 2002 WL 34936072, at *1 (D.D.C.
September 5, 2002).
"[A] plaintiff bears the burden of alleging facts sufficient
to show that the parties intended that termination be subject to
specific preconditions." Daisley v. Riggs Bank, N.A., 372 F. Supp.
2d 61, 70 (D.D.C. 2005). However, the Court disagrees that overly
detailed factual pleadings are required, as some courts have held.
See Harris v. Corr. Corp. of 'Am., 796 F. Supp. 2d 7, 12 (D.D.C.
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. 2011) (granting Motion to Dismiss when "plaintiff's only
allegations regarding the terms of his employment contract [were]
that he 'was employed pursuant to an express and/or implied
employment contract,' that 'he was not an at will employee' and
'could not be terminated without due process and only for cause,'
and that he 'was paid a starting salary of $45,000 per annum.').
We remain in a notice pleading system." Swierkiewicz, 534 U.S. at
515.
The Court finds that Ms. Arias' allegations that "Plaintiff
was a contract employee under expressed terms with all contract
rights and privileges afforded thereto by the District of
Columbia," and that "[t]ermination of [the] contract could only be
effected for just cause," SAC `` 59-60, constitute sufficient
pleadings that she was not an at-will employee. Ms. Arias' alleged
termination, however temporary, may therefore support a claim for
breach of contract.
D. Count 3- Breach of Implied Covenant of Good Faith and Fair
Dealing
"All contracts in the District of Columbia contain an implied
duty of good faith and fair dealing, which means that neither party
shall do anything which will have the effect of destroying or
injuring the right of the other party to receive the fruits of the
contract." Brown v. Sessoms, 774 F.3d 1016, 1025 (D.C. Cir. 2014)
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(internal quotations omitted). "A party breaches this covenant if
it evades the spirit of the contract, willfully renders imperfect
performance, or interferes with performance by the other party to
the contract." Id. (internal quotations omitted).
Defendant argues that this claim must be dismissed because
Ms. Arias has not adequately plead the existence of a contract
with preconditions for her termination. Given the fact that Ms.
Arias has plead the existence of a contract, see supra at 11-13,
and that no discovery has been begun, the Court feels compelled to
allow her to go forward on this Count.
E. Count 4- Wrongful Termination in Violation of Title VII
Ms. Arias has plead, in the alternative, should this Court
find that she was an at-will employee, that she was wrongfully
discharged in violation of public policy. "The tort of wrongful
discharge in violation of public policy is a limited exception to
the general rule in the District of Columbia that an at-will
employee may be discharged at any time and for any reason, or for
no reason at all." Clay v. Howard Univ., 128 F. Supp. 3d 22, 27
(D.D.C. 2015) (internal citations omitted)
To begin with, it is not clear from the pleadings that there
was any period of time in which Ms. Arias was actually terminated.
SAC~ 14.
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However, as already noted, even if there was a non-negligible
period of time between the call discharging Ms. Arias and her
reinstatement, "in the District of Columbia . . . an employer may
discharge an at-will employee at any time and for any reason, or
for no reason at all." Adams v. George W. Cochran & Co., Inc., 597
A.2d 28, 30 (D.C. Cir. 1991). A "very narrow exception to the at-
will doctrine has been recognized in this jurisdiction when the
sole reason for the employee's termination" violates public
policy. Lockhart v. Coastal Int'l Sec., Inc., 5 F. Supp. 3d 101,
106 (D.D.C. 2013) (internal citations omitted)
However, "a plaintiff may not seek relief under a theory of
wrongful discharge based upon a statute that carries its own remedy
for violation." Id. Ms. Arias' Second Amended Complaint cites Title
VII as the public policy that Defendant violated when it allegedly
terminated Ms. Arias. SAC ~ 74.
It is well settled that Title VII affords both legal and
equitable remedies to plaintiffs who establish a cause of action.
Johnson v. Ry. Exp. Agency, Inc., 421 U.S. 454, 459-60 (1975).
Therefore, Ms. Arias cannot bring a separate common law wrongful
termination claim based upon the public policy underlying Title
VII. Lockhart, 5 F. Supp. 3d at 106 and Count 4 must be dismissed.
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F. Count 6- Aggravated Assault
Ms. Arias' aggravated assault claim cannot survive the Motion
to Dismiss because she brings the claim under D. C. Code § 22-
404.01. SAC ~ 95-96. As Defendant points out, this is a criminal
statute, and there is no private right of action under a criminal
statute. See Def's Opp'n at 6-8; Central Bank of Denver v. First
Interstate Bank of Denver, 511 U.S. 164, 190 (1994) ("we refused
to infer a private right of action from 'a bare criminal
statute.'"); Johnson v. D.C. Criminal Justice Act, 305 F. App'x
662, 662 (D.C. Cir. 2008); Kungle v. State Farm, Fire and Causality
Company, 48 F. Supp. 3d 67, 76-77 (D.D.C. 2014) ("there is no
private right of action under a criminal statute").
To the extent that Ms. Arias asks this Court, using extremely
convoluted language, to accept this claim as one of civil assault,
Opp. at 18-20, it would still be barred by the D.C. Worker's
Compensation Act ("WCA"). D.C. Code Ann. § 32-1501 et. ~; See
Fonseca v. Salminen, 896 F. Supp. 2d 84, 86-87 (D.D.C. 2012)
(dismissing assault claim because the WCA was the sole remedy
available) .
Ms. Arias asserts that her aggravated assault claim would
fall under the exception to the WCA for injuries specifically
intended by the employer to be inflicted on the particular employee
who is injured.
.
Pl.'s Reply at 19; See Grillo v. Nat'l Bank of
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Washington, 540 A.2d 743, 744 (D.C. 1988). Courts have interpreted
this exception narrowly. "Specific intent by the employer will not
be found even where an employer has knowledge to a 'substantial
certainty' that an injury will result from an act. Doe v. United
States, 797 F. Supp. 2d 78, 83-84 (D.D.C. 2011).
Even taken in the light most favorable to Ms. Arias, her bare
assertion that the Defendant "intentionally and recklessly" forced
her to work with dangerous chemicals without the required use of
I
Personal Protective Equipment ("PPE") does not fall within the
narrow WCA exception. See Grillo, 540 A.2d at 753 ("The intentional
removal of a safety device or toleration of a dangerous condition
may or may not set the stage for an accidental injury later. But
. it cannot be said, if such an injury does happen, that this
was deliberate infliction of harm")i Doe, 797 F. Supp. 2d at 83-
84.
"When an employee is assaulted on the employer's premises or
otherwise in the course of employment, the employee's resulting
injuries are presumed covered under the [WCA] unless the employer
presents substantial evidence that the assault was motivated by
something entirely personal to the employee and unrelated to the
employment." Fonseca, 896 F. Supp. 2d at 87. Ms. Arias has not
provided any evidence of Marriott's motive to refuse to provide
PPE to its housekeeping staff. In the absence of any evidence of
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a personal motive unrelated to Ms. Arias' employment, this Court
must presume that the alleged assault "arose out of Plaintiff's
employment, and thus is covered by the WCA." Id. (internal
citations omitted) .
Count 6 must therefore be dismissed.
IV. CONCLUSION
For the foregoing reasons, Defendant's Motion to Dismiss is
granted in part and denied in part. An Order shall accompany this
Memorandum Opinion.6
November /:)_, 2016
United States District Judge
Copies to: attorneys on record via ECF
6 The Court calls Plaintiff's counsel to read- and take heed for
the future- Defendant's footnote 1 at page 5 of its Reply. The
Court totally agrees with the language contained therein.
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