Askew v. Meridian Imaging Solutions, Inc. ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
GINA ASKEW, :
:
Plaintiff, :
:
v. : Civil Action No. 08-1755 (JR)
:
MERIDIAN IMAGING SOLUTIONS, INC. :
d/b/a MERIDIAN IMAGING :
SOLUTIONS, et al., :
:
Defendants. :
MEMORANDUM
Gina Askew sues her former employer Meridian Imaging
Solutions, Inc., and several of the company’s employees and
shareholders, alleging that she was treated poorly, and
eventually fired, because of her efforts to seek medical
treatment and to utilize available worker’s compensation laws
after suffering an on-the-job injury. Her claims are for
retaliatory termination after she revealed her intent to file a
worker’s compensation claim, invasion of privacy (a Meridian
employee allegedly remained in the examination room when the
plaintiff was examined by a doctor), and intentional infliction
of emotional distress. The defense has filed for summary
judgment as to the first count, [Dkt. #7], and for judgment on
the pleadings as to counts two and three, [Dkt. #9]. For the
reasons set forth in this memorandum, those motions will be
granted.
Motion to Dismiss
A motion under Fed.R.Civ.P. § 12(c) may be granted when
the movant shows that “no material fact is in dispute and that it
is entitled to judgment as a matter of law.” Khadr v. Bush, ---
F.Supp.2d ----, 2008 WL 4966523 *2 (D.D.C. 2008) (citing Peters
v. Nat'l R.R. Passenger Corp., 966 F.2d 1483, 1485 (D.C.Cir.
1992); Fed.R.Civ.P. §§ 12(c) and 56(c). When evaluating a motion
under Rule 12(c) the court will accept as true and accord
reasonable inferences to the allegations made in the non-movant’s
pleadings. Schuchart v. La Taberna Del Alabardero, Inc., 365
F.3d 33, 34 (D.C. Cir. 2004); Haynesworth v. Miller, 820 F.2d
1245, 1249 fn. 11 (D.C. Cir. 1987).
The Complaint
The following allegations of fact are taken as true for
purposes of this motion: The plaintiff was hired in June 2007 to
work as a dispatch operator in Meridian’s Alexandria, Virginia,
location. One month later, she was transferred to work as a
facilities administrator at Meridian’s facility at 18th Street,
N.W. in the District of Columbia, which provides copying services
for the American Red Cross. Compl. ¶¶ 11, 12. In late December
2007, she fell from a chair while reaching for a Post-it note.
Id. ¶ 14. She called Kristan Dixon, Meridian’s human resources
director, to tell her about the accident. Dixon told her to go
to the emergency room, and that the expenses were covered by
- 2 -
workman's compensation. Id. ¶ 17. When the hospital would not
process the plaintiff for examination without certain payment
information she used her own insurance. Id. ¶ 19. She was
eventually discharged and told to go to an orthopedist. Id.
¶¶ 20-21.
Dixon assured the plaintiff that she would provide the
appropriate worker’s compensation paperwork so that the plaintiff
could set up an appointment with an orthopedist, but she failed
to do so twice, both times within a week of the plaintiff’s
injury. Id. ¶¶ 22, 23. The plaintiff proceeded to set up an
appointment with the orthopedist herself, using her personal
insurance. Id. ¶ 23. When Dixon found out that the plaintiff
had used her own insurance, her reaction was to tell the
plaintiff that she had only a slight strain, id. ¶ 26, and then a
few days later to require the plaintiff to cancel the appointment
and reschedule with a doctor approved by the worker’s
compensation company. Id. ¶ 28. The plaintiff balked at the
delay, claiming that she was in severe physical pain. Id. ¶ 28.
Dixon suggested that the plaintiff go back to the emergency room.
The plaintiff again requested via email the worker’s compensation
information, but Dixon did not respond. Id. ¶ 30.
Later that same day, the plaintiff’s workplace was
changed. She was transferred to Meridian’s facility on 2025 E
- 3 -
Street N.W., in D.C., which also provided copy services to the
Red Cross. Id. ¶ 29.
The next day the plaintiff went to the emergency room,
id. ¶ 31, and the day after that she was told to report to
Meridian’s Alexandria, Va. office. There Dixon told the
plaintiff that she “has no rights, that the decisions were those
of the insurance company, that she could contact the Worker’s
Compensation Board in Richmond, VA if she had any questions,” and
that Dixon had called the orthopedist with whom the plaintiff had
made an appointment, Dr. Koenig, to say that Meridian would not
pay for the visit. Id. ¶ 33. When the plaintiff insisted on
seeing Koenig, Dixon suggested three doctors approved by the
worker’s compensation insurance company, made an appointment for
the plaintiff at a Dr. Alexander’s office, id. ¶ 34, drove the
plaintiff to the appointment, and filled out the appropriate
paperwork, id. ¶ 35. Dr. Alexander examined the plaintiff and
diagnosed her with an “impacted” collarbone. Id. ¶¶ 35-36.
The plaintiff followed Dixon’s suggestion that she call
the Worker’s Compensation Board, and learned that she could get a
referral from Alexander to Koenig. Id. ¶ 37. She made an
appointment with Koenig, id. ¶ 38, and secured the referral from
Dr. Alexander, id. ¶ 41, but she told nobody where she was when
she went to this appointment, to prevent obstruction by others of
her medical care. Id. ¶ 43.
- 4 -
Dixon informed the plaintiff that she could make
appointments with a physical therapist, as recommended by
Dr. Alexander, for workdays after 3 P.M., and that she could go
home afterward. Id. ¶ 39. The therapist could not always
accommodate that schedule, so the plaintiff scheduled some
appointments in the morning, and others back-to-back. Id. at
¶ 44. When Dixon found out about the appointments before 3 P.M.,
she called the therapist to reschedule them. Id. ¶ 45. As a
result of this “meddling” the therapist would not schedule any
new appointments, and as a consequence the plaintiff did not
receive therapy for six weeks. Id. ¶ 46.
Dixon wrote up the defendant for being late to work,
for not reporting to work after her therapy, and for unauthorized
time out of the office (relating to her appointment with Koenig),
id. ¶ 48. Over the course of the next month, Dixon “continually
hounded and harassed the plaintiff regarding time and attendance
as well as accountability issues,” id. ¶ 50, and eventually wrote
her up for these infractions too, id. ¶ 51.
In February 2008, Dr. Alexander set up a functional
capability evaluation (FCE) test, id. ¶ 49, which the plaintiff
took in March, id. ¶ 50. Afterwards, Dixon approached the
plaintiff and asked why she had taken the test, stating that
Dr. Alexander had said that it was cancelled. Id. ¶ 53. Later
that month, Dixon again drove the plaintiff to an appointment
- 5 -
with Dr. Alexander, where the doctor confirmed that the FCE test
had not been cancelled. Id. ¶ 55. Dixon entered the doctor’s
examination room and remained throughout the exam. Id. ¶ 5.
Some days after the CFE exam, the worker’s compensation
claim representative told the plaintiff that she would be able to
work. Id. ¶ 57. The plaintiff made an appointment in April 2008
with Dr. Alexander to review the FCE results. Id. ¶ 58. Dixon
drove the plaintiff to this appointment, too, and she asked to
speak with the doctor before the exam. When the plaintiff
“stated that she had no objections,” Dixon and the doctor
conferred outside. Id. ¶ 59. Dixon then asked to stay in the
exam room again, but this time the plaintiff objected. Id. ¶ 59.
When the doctor prescribed an MRI, Dixon made the appointment.
Id. ¶ 60.
Four days later, the plaintiff’s employment was
terminated. Id. ¶ 61. In July 2008, she was “given” twelve
percent permanent disability for her shoulder injury by
Dr. Alexander. Id. ¶ 62. The plaintiff asks for $7.5 million in
damages.
Invasion of Privacy
The choice of law applicable to this claim is disputed.
The defendants urge the application of Virginia law, which would
be dispositive because Virginia does not recognize claims for
invasion of privacy. The plaintiff, understandably, favors D.C.
- 6 -
law. “When deciding state-law claims under diversity or
supplemental jurisdiction, federal courts apply the choice-of-law
rules of the jurisdiction in which they sit.” Mastro v. Potomac
Elec. Power Co., 447 F.3d 843, 858 (D.C. Cir. 2006) (quoting
Ideal Elec. Sec. Co. v. Int'l Fidelity Ins. Co., 129 F.3d 143,
148 (D.C. Cir. 1997)). The jurisdiction in which I sit “follows
the ‘substantial interest’ position of the Restatement (Second)
of Conflict of Laws (1971) § 145, under which the court will
‘balance the competing interests of the two jurisdictions, and
apply the law of the jurisdiction with the more “substantial
interest” in the resolution of the issue.’” Jaffe v. Pallotta
TeamsWorks, 374 F.3d 1223, 1227 (D.C. 2004). “This inquiry is to
include consideration of several contacts, including (1) the
place where the injury occurred, (2) the place where the conduct
causing the injury occurred, (3) the domicile, residence,
nationality, place of incorporation and place of business of the
parties, and (4) the place where the relationship is centered.”
Jaffe, 374 F.3d at 1227 (internal citation and quotation
omitted).
The plaintiff’s invasion of privacy claim is based
entirely on Dixon remaining in the room when the plaintiff was
being examined by Dr. Alexander at his office in Alexandria,
Virginia, and so both the injury and the conduct that caused the
injury occurred in Virginia. Compl. ¶¶ 70, 71. Meridian also
- 7 -
has offices in Virginia, and the plaintiff was initially hired to
work in the Alexandria copy center as a dispatcher. Compl. ¶ 11.
These considerations, together with Virginia’s interest in
ensuring that its privacy law is consistently applied in doctor’s
offices within its borders, weigh conclusively in favor of
Virginia law. See Jaffe v. Pallotta TeamsWorks, 374 F.3d 1223,
1227 (D.C. 2004) (affirming the district court’s choice of
Virginia law for a negligence and wrongful death action when the
plaintiff’s “death and the medical care leading to it occurred in
Virginia.”). Because Va.Code. Ann. § 8.01-40, which involves the
misappropriation of an individual’s likeness, provides the only
remedy under Virginia law for invasion of privacy, the
plaintiff’s claim must be dismissed. WJLA-TV, et al. V. Levin,
564 S.E.2d 383, 395 fn. 5 (Va. 2002).
Intentional Infliction of Emotional Distress
The parties also dispute the choice of law for the IIED
claim, with the plaintiff again favoring District of Columbia law
over Virginia law. The choice here, however, involves
distinctions with very little difference: As a matter of law, the
facts alleged in the complaint cannot establish liability under
either state’s jurisprudence.
In D.C., “[t]o establish a prima facie case of
intentional infliction of emotional distress, a plaintiff must
show (1) extreme and outrageous conduct on the part of the
- 8 -
defendant which (2) either intentionally or recklessly (3) causes
the plaintiff severe emotional distress.” Larijani v. Georgetown
University, 791 A.2d 41, 43 (D.C. 2002) (emphasis in original).
“The conduct alleged must be ‘so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable
in a civilized community.’”1 Bryant v. The Orkand Corp., 407
F.Supp.2d 29, 37 (D.D.C. 2005) (quoting Homan v. Goyal, 711 A.2d
812, 818 (D.C. 1998)). Similarly, in Virginia, “the tort has
four elements that must be proved: 1) the wrongdoer's conduct was
intentional or reckless; 2) the conduct was outrageous or
intolerable; 3) there was a causal connection between the
wrongdoer's conduct and the resulting emotional distress; and
4) the resulting emotional distress was severe.” Almy v.
Grisham, 639 S.E.2d 182, 187 (Va. 2007). The conduct alleged
must be “‘so outrageous in character, and so extreme in degree,
as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized
community.’” Almy, 639 S.E.2d at 187 (quoting Russo v. White,
400 S.E.2d 160 (Va. 1991). “[L]iability arises only when the
emotional distress is extreme, and only where the distress
1
One decision states that an IIED case can be “made out only
if the recitation of the facts to an average member of the
community would arouse his resentment against the actor, and lead
him to exclaim ‘Outrageous!’” Larijani v. Georgetown University,
791 A.2d 41, 44 (D.C. 2002).
- 9 -
inflicted is so severe that no reasonable person could be
expected to endure it.” See Russo v. White, 241 Va., 23, 400
S.E.2d 160, 163 (Va. 1991) (affirming demurrer when “t]here [wa]s
no claim, for example, that she had any objective physical injury
caused by the stress, that she sought medical attention, that she
was confined at home or in a hospital, or that she lost
income.”).
The plaintiff’s allegations of emotional distress in
both the complaint and her declaration are entirely conclusory
and unsupported by any specifics, and are therefore insufficient
as a matter of law to support that element of her IIED claim.
Nor does the plaintiff point to any specific factual allegation
that would support a finding of sufficiently outrageous behavior,
whether her employer’s conduct is considered “intra-workplace”
mistreatment, Kerrigan v. Britches of Georgetowne, Inc., 705 A.2d
624, (D.C. App. 1997) (holding as insufficient to support an IIED
claim allegations that an employer “targeted [the plaintiff] 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.”) (internal citation
omitted), or otherwise, see Kassem v. Washington Hosp. Center,
513 F.3d 251, 255 (D.C. Cir. 2008)(holding as sufficient to
- 10 -
survive a motion to dismiss an allegation that “after [the
defendant] fired [the plaintiff] from his position, it
intentionally filed a false charge against him . . . a charge
that could have prevented him from working as a nuclear
technologist and subjected him to criminal penalties.”).
Summary Judgment
Summary judgment "should be rendered if the pleadings,
the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter of
law." Fed. R. Civ. P. 56(c). A genuine issue of material fact
exists if the evidence "is such that a reasonable jury could
return a verdict for the nonmoving party." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
The parties agree that Virginia law applies to the
retaliation claim. Pl. Opp at 15-20; MTD1 at 5-7. The relevant
statute, Va. Code § 65.2-308, states that
No employer or person shall discharge an employee
solely because the employee intends to file or has
filed a claim under this title or has testified or
is about to testify in any proceeding under this
title. The discharge of a person who has filed a
fraudulent claim is not a violation of this
section.
Va. Code Ann. § 65.2-308(A) (emphasis added). Even assuming that
the plaintiff has produced enough evidence from which a
reasonable jury could find both that the plaintiff intended to
- 11 -
file a worker’s compensation claim and that her employers knew
this, the plaintiff has failed to meet her burden of showing that
retaliation was the sole reason for the discharge, because the
defendants have produced unrefuted evidence that both economic
factors and Meridian’s internal policies played a large, if not
definitive, role in the plaintiff’s termination.
As discussed above, the plaintiff worked at facilities
in D.C. in which Meridian provided copy services for the Red
Cross. According to Meridian’s uncontroverted evidence, by early
2007, about the time when the plaintiff began working at
Meridian, the volume of copy services provided by Meridian to the
Red Cross began to decline dramatically. MSJ at 2 (citing
Edwards Aff. ¶ 9). In October 2007, Meridian and Red Cross
officials met to discuss this decline and Meridian recommended
cuts in staffing and photocopiers. Edwards Aff ¶ 9. By December
2007, Meridian stopped staffing its Red Cross copy facility in
Virginia altogether. Edwards Aff ¶ 11. Things worsened to the
point to where some months the 18th Street copy center had no
copy projects at all. Edwards Aff. ¶ 15. In January 2008, the
Red Cross publicly stated that it was cutting one third of its
staff. Edwards Aff ¶ 16. Meridian again approached the Red
Cross about reducing staff and removing unused equipment.
Edwards Aff. ¶ 18.
- 12 -
According to Meridian’s evidence, it was because of
these economic factors that in April 2008, the defendants decided
to eliminate a position at the 2025 E Street facility, where the
plaintiff worked. Edwards Aff ¶ 19; Dixon Aff ¶ 24; Opp ex. 5
(the plaintiff’s severance letter). Meridian’s affiants also
testify that it was Meridian’s policy to eliminate the position
of the last employee assigned to a facility. Edwards Aff. ¶ 22;
Dixon Aff. at 24. This is supported by the text of the severance
letter, and it is undisputed that the plaintiff was “last in.”
Opp ex. 5.
The plaintiff argues that the severance letter implies
that the defendants had some discretion in their policy, that the
existence of the policy is insufficiently supported, that the
defendant has been inconsistent in its reasons for terminating
the plaintiff, and that there is an admitted exception to the
policy in that Meridian can also choose to discharge employees
who had written warnings in their file and were already in
jeopardy of being fired. Opp. at 17. But the purported
inconsistencies for why Meridian terminated the plaintiff are
unsupported by record citation, it is undisputed that neither of
the other two employees being retained at the 2025 E Street
location had ever been given written warnings, and the existence
of the policy and its application to plaintiff are supported by
both the severance letter and two affiants. Edwards Aff. at 20;
- 13 -
Dixon Aff. at 23; Opp ex. 5. The plaintiff also implies that
Meridian transferred her to the 2025 E Street facility (four
months before her discharge) in order to use the policy to fire
her, Pl. Opp. 17-18, but this assertion is entirely unsupported
and is contradicted by the defendants’ evidence.
Given the undisputed evidence, no reasonable juror
could find that plaintiff’s intent to file a worker’s
compensation claim was the sole reason for her dismissal.
Conclusion
For the above discussed reasons, judgment will be
entered for the defendants on the retaliation count, and the IIED
and invasion of privacy counts will be dismissed. An appropriate
order will accompany this memorandum.
JAMES ROBERTSON
United States District Judge
- 14 -