Brewer v. Hr Policy Association , 887 F. Supp. 2d 118 ( 2012 )


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  •                    UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    ______________________________
    )
    MAYA BREWER                   )
    )
    Plaintiff,               )
    )
    v.                       )          Civil Action No. 11-2263 (GK)
    )
    HR POLICY ASSOCIATION, et al.,)
    )
    Defendants.              )
    ______________________________)
    MEMORANDUM OPINION
    Plaintiff Maya Brewer brings this action against HR Policy
    Association,   McGuiness    &   Yager,   LLP,   and   Jeffrey    McGuiness
    (collectively, “Defendants”). Plaintiff asserts causes of action
    for discrimination    in   violation of     
    D.C. Code §§ 32-501
       -517
    et seq., and 
    D.C. Code § 2-1401.05
     et seq., under the District of
    Columbia Family and Medical Leave Act and the District of Columbia
    Human Rights Act; for sex and pregnancy discrimination in violation
    of Title VII of the Civil Rights Act of 1964, as amended, 
    42 U.S.C. § 2000
    (e) et seq. (“Title VII”); and for negligent infliction of
    emotional distress.
    This matter is before the Court on Defendants’ Motion to
    Dismiss Plaintiff’s Amended Complaint or, in the Alternative, for
    Summary Judgment [Dkt. No. 8]. Upon consideration of the Motion,
    Opposition [Dkt. No. 9], Reply [Dkt. No. 11], and the entire record
    herein, and for the reasons stated below, Defendants’ Motion to
    Dismiss Plaintiff’s Amended Complaint or, in the Alternative, for
    Summary Judgment is granted in part and denied in part.
    I.   Background
    A.     Factual Background1
    Plaintiff Maya Brewer is a resident of Virginia. Defendant, HR
    Policy Association (“HR POLICY”) is a non-profit whose principal
    place of    business   is   in   the   District   of   Columbia.   Defendant
    McGuiness & Yager (“M&Y”), is a limited liability partnership,
    whose principal place of business is in the District of Columbia.
    Defendant   Jeffrey    McGuiness   (“McGuiness”),      a   resident   of   the
    District of Columbia, is the president and CEO of HR POLICY, a
    senior partner with M&Y, and was, during the relevant time period,
    Brewer’s direct supervisor.
    In August 2009, M&Y hired Brewer as a full-time employee in
    the District of Columbia. In July 2010, Brewer informed McGuiness
    that she was pregnant and inquired about maternity leave policies.
    According to Brewer, she was led to believe that she was the first
    employee at HR POLICY or M&Y to ever become pregnant and that
    Defendants had not yet formulated a maternity leave policy to
    accommodate employees who become pregnant. Amended Complaint (“Am.
    Compl.”) ¶ 13. Brewer claims that McGuiness informed her that he
    would have to “get back to her” on the specifics of Defendants’
    1
    Unless otherwise noted, the facts set forth herein are drawn
    from parties' Statements of Material Facts Not in Dispute submitted
    pursuant to Local Rule 7(h).
    2
    maternity leave policy and their ability to accommodate pregnant
    employees. 
    Id.
    According to Brewer, in preparation for her maternity leave,
    she undertook efforts to arrange for a temporary fill-in employee
    for her position and informed McGuiness of these efforts. Am.
    Compl. ¶ 14. Brewer claims that, “[d]espite these efforts, on or
    about October 5, 2010, McGuiness informed [her] that her employment
    would end following the expiration of any maternity leave taken by
    [her].” 
    Id. ¶ 15
    . According to Brewer, the next day, on October 6,
    2010, Tim Bartl, a partner with M&Y, told her “that he wanted to
    ‘clear the air’ and informed her that she was ‘not necessarily
    being terminated per se’ but that she would have to re-apply for
    her job when she wished to return to work after the birth of her
    child.” 
    Id. ¶ 16
    . Brewer claims that she was “distraught and
    confused as to the status of her employment,” but continued to
    carry out her work duties. 
    Id.
    In October 2010, M&Y permitted Brewer to work from home due to
    her pregnancy. While working from home, Brewer continued to receive
    her full salary.
    According to Brewer, on November 5, 2010, HR POLICY publicly
    announced in an email blast the hiring of Vicky Mitchell to fill
    her position. 
    Id. ¶ 17
    . Brewer states that on November 9, 2010,
    McGuiness emailed her to ask where she would like her personal
    belongings sent. 
    Id. ¶ 18
    . Shortly thereafter, Brewer claims that
    3
    her name was removed from HR POLICY’S website. 
    Id. ¶ 19
    . Finally,
    Brewer contends that her voicemail greeting was deleted in November
    2010 and her telephone extension was assigned to Vicky Mitchell.
    
    Id. ¶ 20
    .
    On or about November 13, 2010, Brewer gave birth to her child.
    On November 15, 2010, as part of M&Y’s short term disability plan,
    Brewer began to receive 60% of her salary for three weeks following
    the birth of her child. Brewer received holiday pay as follows: two
    and one-half days in November 2010 for Thanksgiving; three days in
    December 2010 for Christmas and New Years; one day in January 2011
    for Martin Luther King Day; and one day in March 2011 for a firm
    holiday.
    On or about December 21, 2010, Brewer emailed Marisa Milton,
    then a partner with M&Y and an officer with HR POLICY, informing
    Ms. Milton that she was ready to return to work. Brewer’s email was
    not answered.
    In early January 2011, McGuiness received a demand letter on
    behalf of Brewer from Scott Lovernick of Jeffrey Scott, LLP, a law
    firm in San Francisco. The letter was dated December 27, 2010, six
    days after Brewer sent her email to Ms. Milton. In that letter, Mr.
    Lovernick stated that his firm had been retained by Brewer to
    pursue her claims related to “the company’s decision to terminate
    her employment.” The letter also stated that Brewer was an employee
    of HR POLICY.
    4
    On January 13, 2011, M&Y, through one of its partners, Michael
    Peterson, responded to Mr. Lovernick’s December 27, 2010 letter,
    stating that Brewer was M&Y’s employee and that Brewer had not been
    terminated, but was on leave. The letter further explained that
    Brewer was still on M&Y’s health plan and that it continued to pay
    her benefits. In closing, the letter stated, “[w]e anticipate
    hearing from Maya [Brewer] regarding her post-leave plans and
    discussing with her the opportunities going forward with the firm.”
    Brewer did not contact M&Y in response to that letter.
    On February 4, 2011, M&Y received a second letter from Mr.
    Lovernick,   dated   January   31,   2011,   in   which   he   repeated   his
    position that Brewer had been terminated. Mr. Lovernick also noted
    that Brewer had sent an email to Ms. Milton on December 21, 2010,
    but that Ms. Milton had not responded.
    According to Defendants, no one at M&Y, including Ms. Milton,
    received or was aware of the email Brewer sent on December 21,
    2010. Defs.’ SOMF ¶ 38. Defendants contend that upon receipt of the
    January 31, 2011 letter from Mr. Lovernick, M&Y’s information
    technology consultant found that the email never reached Ms.
    Milton, as it went directly into “spam mail.” 
    Id.
    On February 7, 2011, M&Y sent another letter to Mr. Lovernick,
    reiterating that Brewer was still an employee; that she continued
    to be on M&Y’s health plan; that she continued to have her health
    benefit premiums paid by M&Y; and that she had been paid for the
    5
    Martin Luther King Day holiday in January 2011. M&Y concluded the
    letter with an invitation to hear “directly from Maya [Brewer] to
    discuss her post-leave plans and her opportunities going forward
    with the firm.”
    On February 15, 2011, M&Y sent a letter directly to Brewer
    reiterating that she was still an employee of M&Y. M&Y again
    requested that Brewer contact M&Y to discuss her post-leave plans
    with the firm. Brewer did not respond to that letter.
    On March 15, 2011 M&Y sent another letter to Brewer. In that
    letter M&Y stated that because it had not heard from Brewer or her
    attorney,    it   assumes   that    she   terminated   the   employment
    relationship. The letter also stated that if that assumption is
    incorrect or if Brewer wants to continue her employment with M&Y,
    she should contact McGuiness by March 22, 2011.
    On March 23, 2011, having heard nothing from Brewer or her
    attorney, M&Y’s Director of Finance sent Brewer a continuation of
    coverage letter for her health benefits.
    B.   Procedural Background
    On December 20, 2011, Plaintiff filed her Complaint against
    Defendants [Dkt. No. 1].
    On December 29, 2011, Plaintiff received her right-to-sue
    letter from the EEOC as it relates to claims brought under Title
    VII.
    6
    On February 8, 2012, Defendants filed their Motion to Dismiss,
    or in the Alternative, for Summary Judgment on all counts of
    Brewer’s Original Complaint. [Dkt. No. 5]. Plaintiff did not oppose
    Defendants’ First Motion to Dismiss. Instead, on February 24, 2012,
    she filed an Amended Complaint. [Dkt. No. 7].
    On March 12, 2012, Defendants filed a Motion to Dismiss
    Plaintiff’s Amended Complaint or, in the Alternative, for Summary
    Judgment [Dkt. No. 8]. On March 26, 2012 Plaintiff filed her
    Opposition to Defendants’ Motion to Dismiss her Amended Complaint
    [Dkt. No. 9]. On April 2, 2012, Defendants filed their Reply to
    Plaintiff’s Opposition [Dkt. No. 11].
    II.   Standard of Review
    Defendants move to dismiss Plaintiff's Complaint or, in the
    alternative, for summary judgment. Where, as here, the Court must
    consider “matters outside the pleading” to reach its conclusion, a
    Motion to Dismiss “must be treated as one for summary judgment and
    disposed of as provided in Rule 56.” See Fed. R. Civ. P. 12(b); see
    also Yates v. District of Columbia, 
    324 F.3d 724
    , 725 (D.C. Cir.
    2003) (noting that when a judge considers matters outside the
    pleadings,   a   motion   to   dismiss   under   Rule   12(b)(6)   must   be
    converted into a Motion for Summary Judgment under Rule 56).
    Under Rule 56, summary judgment may be granted “only if” the
    pleadings, the discovery and disclosure materials on file, and any
    affidavits show that there is no genuine issue as to any material
    7
    fact and that the moving party is entitled to judgment as a matter
    of law. See Fed. R. Civ. P. 56(c), as amended December 1, 2007;
    Arrington v. United States, 
    473 F.3d 329
    , 333 (D.C. Cir. 2006). “A
    dispute over a material fact is ‘genuine’ if ‘the evidence is such
    that a reasonable jury could return a verdict for the nonmoving
    party.’” 
    Id.
     (quoting Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 248 (1986)). A fact is “material” if it might affect the
    outcome of the case under the substantive governing law. Liberty
    Lobby, 
    477 U.S. at 248
    .
    In deciding a motion for summary judgment, “the court must
    draw all reasonable inferences in favor of the nonmoving party, and
    it may not make credibility determinations or weigh the evidence.”
    Reeves v. Sanderson Plumbing Prods., Inc., 
    530 U.S. 133
    , 150
    (2000). Ultimately, the court must determine “whether the evidence
    presents a sufficient disagreement to require submission to a jury
    or whether it is so one-sided that one party must prevail as a
    matter of law.” Liberty Lobby, 
    477 U.S. at
    251–52. Summary judgment
    is appropriate if the non-movant fails to offer “evidence on which
    the jury could reasonably find for the [non-movant].” 
    Id. at 252
    .
    III. Analysis
    A.   Count I:   The DCFMLA and DCHRA
    Plaintiff claims that Defendants discriminated against her in
    violation of the District of Columbia Family and Medical Leave Act
    8
    (DCFMLA),2 
    D.C. Code §§ 32-501-517
     et seq., and the District of
    Columbia Human Rights Act (DCHRA),3 
    D.C. Code § 2-1401.05
     et seq.
    Amended   Compl.   ¶¶   23-27.   Plaintiff   alleges   that   “Defendants
    terminated [her] with knowledge and because of her pregnancy/sex
    and after she requested maternity leave” and that “[a]s a result of
    defendants’ conduct, [she] has experienced humiliation, mental
    anguish and physical and emotional distress and is entitled to
    economic damages exceeding $1,000,000.” 
    Id. at ¶¶ 24, 26
    . Plaintiff
    further alleges that “Defendants’ [] acts were willful, malicious
    2
    The DCFMLA provides employees of a covered employer with
    sixteen weeks of protected medical leave during any twenty-four-
    month period. 
    D.C. Code § 32-503
    (a). The act guarantees that an
    “employee returning from medical leave will be restored to the same
    position which that employee held when the leave began, or to an
    equivalent position.” Harrison v. Children’s Nat’l Med. Ctr., 
    678 A.2d 572
    , 575 (D.C. 1996); see also 
    D.C. Code § 32-505
    (d).
    Additionally, to the extent that employment benefits were provided
    prior to the temporary leave period, an employer is required to
    continue providing those benefits after an employee takes protected
    leave. See § 32-505(a). The act provides that an employee may bring
    a private cause of action to enforce its provisions. 
    D.C. Code § 32-510
    (a).
    3
    The DCHRA provides in relevant part that “discrimination on
    the basis of sex shall include, but not be limited to,
    discrimination on the basis of pregnancy...” and that “women
    affected by pregnancy...shall be treated the same for all
    employment-related purposes, including receipt of benefits under
    fringe benefit programs, as other persons not so affected but
    similar in their ability or inability to work, and this requirement
    shall include, but not be limited to, a requirement that an
    employer must treat an employee temporarily unable to perform the
    functions of her job because of her pregnancy-related condition in
    the same manner as it treats other employees with temporary
    disabilities.” 
    D.C. Code § 2-1401.05
    .
    9
    and oppressive” and that as such “[she] is entitled to an award of
    punitive damages.” 
    Id. at ¶ 27
    .
    1.   Defendants’ Motion to Dismiss Plaintiff’s DCFMLA
    Claim Is Granted
    Defendants argue that judgment should be granted in their
    favor on Plaintiff’s DCFMLA claim because they were not covered
    employers. Defendants contend that “it is uncontroverted” that the
    number of employees for any and all Defendants, whether jointly or
    severally, is fewer than the twenty employees required to allege a
    claim under the DCFMLA.4 Defs.’ MTD at 19. Defendants additionally
    argue that the DCFMLA claim is untimely as to all Defendants and
    therefore fails to state a claim. 
    Id.
     at 24-26
    Plaintiff responds that a genuine issue of material fact
    exists as to whether Defendants are covered employees under the
    DCFMLA. Plaintiff argues that “[w]ithout the benefit of discovery
    [she]    identifies   thirty-two   (32)   individuals   whom   she   worked
    alongside at defendants McGuiness & Yager and HR POLICY during from
    [sic] August 2009 - October 2010.” Pl.’s Opp’n at 6; see also
    Brewer Decl. ¶ 17. Plaintiff does not oppose Defendants’ argument
    that her DCFMLA claim is untimely.
    The DCFMLA has a one-year statute of limitations. See 
    D.C. Code § 32-510
    (b)(2001). The District of Columbia Code provides that
    4
    In order to be a covered employer under the DCFMLA, the
    employer must employ twenty or more persons in the District of
    Columbia. D.C. Code 32-516(2).
    10
    “[n]o civil action may be commenced more than 1 year after the
    occurrence or discovery of the alleged violation [of the DCFMLA]”
    
    D.C. Code § 32-510
    (b)(2001). Since Brewer filed her Complaint on
    December 20, 2011, any alleged adverse employment action prior to
    December 21, 2010 is not actionable.
    Plaintiff claims to have been terminated on either October 5,
    2010 or October 6, 2010, dates that do not fall within the DCFMLA’s
    one year limitations period. See Am. Compl. ¶¶ 15-16. Plaintiff has
    presented no opposition to Defendants’ argument that her claim is
    untimely. Therefore, Defendants’ Motion to Dismiss Plaintiff’s
    DCFMLA claim is granted.
    2.   Defendants’ Motion to Dismiss Plaintiff’s DCHRA
    Claim Is Granted
    Defendants argue that Plaintiff’s DCHRA Claim is untimely as
    to HR POLICY and McGuiness.5 Defs.’ MTD at 26.   Defendants further
    argue that “Plaintiff’s allegations in the Amended Complaint are
    the type of conclusory and formulaic recitations disregarded by the
    Supreme Court in [Ashcroft v. Iqbal, 
    566 U.S. 662
     (2009)]” and that
    “[t]he factual averments, whether timely or not, do not suggest or
    imply discrimination on account of pregnancy.” 
    Id. at 27
    . Plaintiff
    does not oppose Defendants’ arguments.
    5
    M&Y does not seek dismissal of the DCHRA claim on timelines
    grounds “assuming arguendo that the filing of a Charge of
    Discrimination with the EEOC tolled the cause of action against
    it.” Defs.’ MTD at 26 n.26.
    11
    Like      the    DCFMLA,    the     DCHRA    has    a   one-year      statute         of
    limitations. See 
    D.C. Code § 2-1403.16
    (a). Again, Plaintiff has
    presented no opposition to Defendants’ argument that her DCHRA
    claim is untimely. Moreover, the Court agrees with the Defendants’
    unopposed argument that Plaintiff failed to sufficiently allege a
    claim under the DCHRA. Accordingly Defendants’ Motion to Dismiss
    Plaintiff’s DCHRA claim is granted.
    B.     Count II:         Title VII
    Under Title VII, it is unlawful “for an employer to fail or
    refuse to      hire     or   to discharge        any    individual,       or   otherwise
    discriminate against any individual with respect to his [or her]
    compensation,        terms,    condition,      or      privileges    of    employment,
    because   of    such     individual’s      race,       color,    religion,         sex,    or
    national origin.”. 42 U.S.C. § 2000e-2(a)(1). The term “employer”
    under Title VII refers to “a person who has fifteen or more
    employees for each working day in each of twenty or more calendar
    weeks in the current or preceding calendar year...” 42 U.S.C.
    § 2000e(b).
    Plaintiff        alleges     that    “Defendants’          termination        of     her
    employment      based    on    her   sex/pregnancy        constitutes          a   willful
    violation of Title VII of the Civil Rights Act of 1964, as amended,
    entitling [her] to all relief afforded by the statute, including
    punitive damages.” Am. Compl. ¶ 29.
    12
    1.     Defendants’ Motion to Dismiss Plaintiff’s Title VII
    Claim as to McGuiness Is Granted
    The case law in this Circuit is clear that individuals may not
    be held personally liable under Title VII. Yesudian ex rel. U.S. v.
    Howard Univ., 
    270 F.3d 969
    , 972 (D.C. Cir. 2001) (“[W]e and all
    other circuits have held that the word ‘employer’ [under Title VII]
    does not cover a supervisor in his [or her] personal capacity.”);
    see also Brown v. Children’s Nat’l Medical Ctr., 
    773 F. Supp. 2d 125
    , 134, 135 (D.D.C. 2011) (granting motion to dismiss individuals
    from Title VII claims)(citing Gary v. Long, 
    59 F.3d 1391
    , 1393
    (D.C.   Cir.       1995).   Accordingly,       Defendants’     Motion   to   Dismiss
    Plaintiff’s Title VII claim against McGuiness is granted.
    2.          Defendants’ Motion to Dismiss Plaintiff’s Title VII
    Claim as to HR POLICY and M&Y Is Denied
    Defendants contend that Brewer failed to set forth a prima
    facie case for a violation of Title VII because none of the
    Defendants had fifteen or more employees for twenty or more weeks
    for any year in which Plaintiff was employed. Defs.’ MTD at 30.
    Defendants contend that “[HR POLICY and McGuiness] did not have any
    employees      in    2009   or   2010,   and    that   [M&Y]    employed     only   10
    employees in July 2010 and never had 20 employees in any week in
    2009 or 2010 in the District of Columbia.” Id. at 31. To support
    their position, Defendants point to records from M&Y’s payroll
    vendor, which they contend show that M&Y never had fifteen or more
    13
    employees for twenty weeks in any relevant year. Defs.’ Reply at
    12; see Exhibit 4 to Defs.’ MTD.
    Plaintiff responds that there is a genuine dispute regarding
    whether Defendants, either jointly or severally, were “employers,”
    as defined by Title VII. To support her argument, Plaintiff points
    to a print-out from the current6 HR POLICY website, which lists
    twenty-one individuals under the category of “Officers & Staff.”
    Exhibit 3 to Pl.’s Opp’n. Plaintiff also identifies by name twenty-
    eight individuals who she claims to have “worked with during 2009-
    2010 while employed by [M&Y] and HR POLICY.” Brewer Decl. ¶ 17.
    Plaintiff further argues that even if the Court determines that
    “any   of   Plaintiff’s   claims   are   insufficiently   pleaded,   then
    Plaintiff should be provided an opportunity to conduct discovery
    [under Federal Rule of Civil Procedure 56(d)] and thereafter
    receive leave to amend.” Pl.’s Opp’n at 12.
    It is well established in this Circuit that summary judgment
    “ordinarily ‘is proper only after the [non-moving party] has been
    given adequate time for discovery.’” Americable Int'l, Inc. v.
    Dep't of Navy, 
    129 F.3d 1271
    , 1274 (D.C. Cir. 1997) (quoting First
    Chicago Int'l v. United Exch. Co., 
    836 F.2d 1375
    , 1380 (D.C. Cir.
    1988)). Under Federal Rule of Civil Procedure 56(d), a court “may
    deny a motion for summary judgment or order a continuance to permit
    6
    Plaintiff contends that she does not have access to HR POLICY
    website history to determine who was listed as employees during the
    period of her employment. Brewer Decl. ¶ 19.
    14
    discovery if the party opposing the motion adequately explains why,
    at that timepoint, it cannot present by affidavit facts needed to
    defeat   the   motion.”   Strang   v.    United   States   Arms   Control   &
    Disarmament Agency, 
    864 F.2d 859
    , 861 (D.C. Cir. 1989). Rule 56(d)
    is “intended to prevent railroading a non-moving party through a
    premature motion for summary judgment before the non-moving party
    has had the opportunity to make full discovery.” Milligan v.
    Clinton, 
    266 F.R.D. 17
    , 18 (D.D.C. 2010) (citations omitted).
    Therefore, “District Courts are afforded discretion in ruling on
    requests for additional discovery pursuant to Rule 56[d].” Stella
    v. Mineta, 
    284 F.3d 135
    , 147 (D.C. Cir. 2002).7
    In this case, Defendants’ Motion was filed on March 12, 2012,
    well before discovery had begun.8 In fact, at this time, discovery
    remains at an early stage and is not scheduled to end until
    December 15, 2012. In responding to Defendants’ Motion, Plaintiff
    identified with adequate specificity the discovery she needs to
    oppose Defendants’ argument that it is not an “employer” under
    Title VII, including, but not limited to discovery topics such as:
    “the nature and relationship, or ‘economic realities’ of the
    partners/employees/officers/staff at [M&Y] or HR POLICY;” and the
    7
    Prior to the 2010 amendments to the Federal Rules of Civil
    Procedure, Rule 56(d) was codified as Rule 56(f).         It was
    recodified with no substantial changes. See Fed. R. Civ. P. 56(d)
    committee note to 2010 Amendments.
    8
    On July 9, 2012, the Court issued a Scheduling Order setting
    discovery deadlines. Scheduling Order [Dkt. No. 14].
    15
    nature of the relationship between M&Y and HR POLICY.9 See Pl.’s
    Opp’n at 10.
    Based on Plaintiff’s representations in her Opposition, the
    Court agrees that resolution of Defendants’ challenge to her Title
    VII claim is premature because discovery is at such an early stage,
    and the Defendants’ challenge involves disputed factual questions.
    Defendants raise no other grounds for judgment on Plaintiff’s Title
    VII claim. Accordingly, Defendants’ Motion to Dismiss Plaintiff’s
    Title VII claim against HR POLICY and M&Y is denied.
    C.   Count III: Negligent Infliction of Emotional Distress
    Plaintiff claims that “Defendants’ intentional, malicious,
    willful   and     wanton    acts    toward   [her]    constitute    negligent
    infliction of emotional distress entitling [her] to all relief
    allowed by law, including the award of compensatory, general and
    punitive damages.” Am. Compl. ¶ 31.
    Defendants     argue    that    Plaintiff’s      claim   for   negligent
    infliction   of    emotional   distress      should   be   dismissed   because
    “Brewer fails to allege any factual support for her claim.” Defs.’
    MTD at 36.
    9
    Plaintiff argues that “[a] genuine issue of fact [] exists
    as to whether defendants McGuiness & Yager and HR POLICY are ‘alter
    egos’ of one another or ‘joint employers’” whereby an employee of
    one should also count as an employee of the other under Title VII.
    Pl.’s Opp’n at 7-8. She then points to evidence supporting her
    theory that M&Y and HR POLICY are joint employers. Id. at 9-10.
    16
    In this Circuit, to recover for negligent infliction of
    emotional distress, a plaintiff must show either that “(1) the
    emotional distress resulted from direct physical injury or (2) if
    there is no physical impact, he [or she] was present in the zone of
    physical danger created by the defendant’s negligence and feared
    for his [or her] own safety.” Kun v. Finnegan, Handerson, Farabow,
    Garrett & Dunner, 
    949 F. Supp. 13
    , 20 (D.D.C. 1998) (citing Mackey
    v. United States, 
    8 F.3d 826
    , 831 (D.C. Cir. 1993); Ryczek v. Guest
    Services, Inc., 
    877 F. Supp. 754
    , 764 (D.D.C. 1995)).
    Plaintiff does not allege that any emotional distress resulted
    from direct physical injury. Plaintiff also does not allege that
    she was present in a zone of physical danger created by Defendants’
    negligence   and   that   she   feared   for   her   own   safety.   Finally,
    Plaintiff does not oppose Defendants’ argument that she failed to
    state a claim for negligent infliction of emotional distress.
    Accordingly, Defendants’ Motion to Dismiss Plaintiff’s claim for
    negligent infliction of emotional distress is granted.
    IV.   CONCLUSION
    For the reasons set forth above, Defendants’ Motion to Dismiss
    Plaintiff’s Amended Complaint or, in the Alternative, for Summary
    17
    Judgment is granted in part and denied in part. An Order will
    accompany this Memorandum Opinion.
    /s/
    August 28, 2012                      Gladys Kessler
    United States District Judge
    Copies via ECF to all counsel of record
    18