Hopkins v. Blue Cross and Blue Shield Association ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SHEILA WATSON HOPKINS
Plaintiff,
v. Civil Action No. 10-900 (JDB)
BLUE CROSS AND BLUE SHIELD
ASSOCIATION,
Defendant.
MEMORANDUM OPINION
Plaintiff Sheila Watson Hopkins brings this action against defendant Blue Cross and Blue
Shield Association raising four claims related to her employment termination: breach of contract,
wrongful termination in violation of public policy, intentional interference with a prospective
economic advantage, and negligent supervision. Defendant moves to dismiss plaintiff's complaint
in its entirety pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim
upon which relief can be granted or, in the alternative, moves for summary judgment under Fed.
R. Civ. P. 56. For the reasons discussed below, the Court will grant defendant's motion to dismiss
plaintiff's claims for breach of contract, intentional interference with a prospective economic
advantage, and negligent supervision. As for plaintiff's claim of wrongful termination in violation
of public policy, the Court grants summary judgment in favor of defendant.
BACKGROUND
Plaintiff asserts four claims stemming from her termination of employment on May 15,
2009. Plaintiff was hired as an Executive Secretary at defendant Blue Cross and Blue Shield
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Association ("BCBSA") in 1988. See Plaintiff's Complaint ("Compl.") ¶ 8. She was promoted in
1995 to the position of Congressional Liaison/Coordinator and in 2001 was offered and accepted
the position of Assistant to the Executive Director of Political Affairs. Id. ¶ 9-10. In 2004, Ms.
Kathy Didawick was promoted to the position of Executive Director of Political Affairs and
served as plaintiff's manager for the period covering this suit. Id. ¶ 14, 16. In addition to her role
at BCBSA, Ms. Didawick also served as Chairman of the Children's 2009 Hospital Vintage
Affair, a Co-Chair of the Finance Committee for the March of Dimes Gourmet Gala, a Board
member of the American Red Cross National Capital Area Invitational Golf Tournament
Committee, and a Board member at the non-profit organization A Hand Up. Id. ¶ 17.
Beginning in January 2009, plaintiff alleges, Ms. Didawick began assigning her work
outside of her role as Assistant to the Executive Director of Political Affairs. Id. ¶¶ 22, 24, 26,
33-36, 38-40, 42-49, 52-54, 76. Specifically, plaintiff asserts that she was required to update Ms.
Didawick's BCBSA calender with meetings concerning events for the March of Dimes, update
Ms. Didawick's "to do" list and compile an address list concerning the Children's Hospital
Vintage Affair, schedule a meeting for the A Hand Up Board, and perform other clerical tasks
related to these charity events. Id. ¶¶ 36, 38, 42, 43, 52, 54. Plaintiff states that she had
"reservations" concerning these assignments, but ultimately completed the tasks. Id. ¶¶ 23, 25,
35, 37.
In April of 2009, plaintiff applied for a position with Ms. Kimberly Bolton, the Director
of Communication. Id. ¶ 70. Plaintiff asserts that Ms. Bolton had been told by Ms. Alissa Fox,
Vice President of Policy, that she was prohibited from interviewing plaintiff for any position
because of statements made by Ms. Didawick concerning plaintiff. Id. ¶¶ 50, 70. On May 15,
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2009, BCBSA terminated plaintiff's employment. Id. ¶ 56.
STANDARD OF REVIEW
I. Motion to Dismiss
All that the Federal Rules of Civil Procedure require of a complaint is that it contain "'a
short and plain statement of the claim showing that the pleader is entitled to relief,' in order to
'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). Although "detailed
factual allegations" are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide
the "grounds" of "entitle[ment] to relief," a plaintiff must furnish "more than labels and
conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S.
at 555-56; see also Papasan v. Allain, 478 U.S. 265, 286 (1986). "To survive a motion to dismiss,
a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that
is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550
U.S. at 570); accord Atherton v. District of Columbia Office of the Mayor, 567 F.3d 672, 681
(D.C. Cir. 2009). A complaint is plausible on its face "when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged." Iqbal, 129 S. Ct. at 1949. This amounts to a "two-pronged approach" under
which a court first identifies the factual allegations entitled to an assumption of truth and then
determines "whether they plausibly give rise to an entitlement to relief." Id. at 1950-51.
The notice pleading rules are not meant to impose a great burden on a plaintiff. Dura
Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005); see also Swierkiewicz v. Sorema N.A., 534
U.S. 506, 512-13 (2002). When the sufficiency of a complaint is challenged by a motion to
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dismiss under Rule 12(b)(6), the plaintiff's factual allegations must be presumed true and should
be liberally construed in his or her favor. Leatherman v. Tarrant County Narcotics &
Coordination Unit, 507 U.S. 163, 164 (1993); Phillips v. Bureau of Prisons, 591 F.2d 966, 968
(D.C. Cir. 1979); see also Erickson, 551 U.S. at 94 (citing Twombly, 550 U.S. at 555-56). The
plaintiff must be given every favorable inference that may be drawn from the allegations of fact.
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Sparrow v. United Air Lines, Inc., 216 F.3d 1111,
1113 (D.C. Cir. 2000). However, "the court need not accept inferences drawn by plaintiffs if such
inferences are unsupported by the facts set out in the complaint." Kowal v. MCI Commc'ns
Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Nor does the court accept "a legal conclusion
couched as a factual allegation," or "naked assertions [of unlawful misconduct] devoid of further
factual enhancement." Iqbal, 129 S. Ct. at 1949-50 (internal quotation marks omitted); see also
Aktieselskabet AF 21. November 21 v. Fame Jeans Inc., 525 F.3d 8, 17 n.4 (D.C. Cir. 2008)
(explaining that the court has "never accepted legal conclusions cast in the form of factual
allegations").
II. Summary Judgment
Summary judgment is appropriate when the pleadings and the evidence demonstrate that
"there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law." Fed. R. Civ. P. 56(a). The party seeking summary judgment bears the initial
responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its
motion by identifying those portions of "the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations (including those made for
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purposes of motion only), admissions, interrogatory answers, or other materials," which it
believes demonstrate the absence of a genuine issue of material fact. Fed. R. Civ. P. 56(c)(1); see
Celotex, 477 U.S. at 323.
In determining whether there exists a genuine dispute of material fact sufficient to
preclude summary judgment, the court must regard the non-movant's statements as true and
accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than
the "mere existence of a scintilla of evidence" in support of its position. Id. at 252. By pointing
to the absence of evidence proffered by the non-moving party, a moving party may succeed on
summary judgment. Celotex, 477 U.S. at 322. "If the evidence is merely colorable, or is not
significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50(citations omitted). 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.
DISCUSSION
I. Claim One: Breach of Contract
In her complaint, plaintiff asserts that defendant breached her employment contract by
assigning her work outside of her job description. Compl. ¶¶ 22, 24, 26, 33-36, 38-40, 42-49, 52-
54, 76. District of Columbia law has long established that "unless a contrary contractual intent is
clearly expressed, all employment is at-will." Turner v. Federal Express Corp., 539 F. Supp. 2d
404, 410 (D.D.C. 2008) (citing Green v. Bowne of N.Y. LLC, 2002 U.S. Dist. LEXIS 16872 at
*1-2 (D.D.C. Sept. 5, 2002)). Under the at-will employment doctrine, the employment
relationship can be terminated by either party for any reason, or no reason, at any time. See
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Adams v. George W. Cochran & Co., 597 A.2d 28, 30 (D.C. 1991); Lance v. United Mine
Workers of America 1974 Pension Trust, 355 F. Supp. 2d 358, 360 (D.D.C. 2005). An implied
employment contract, however, can be created when the policies and procedures implemented by
the employer do not coincide with the employment-at-will doctrine. For example, an implied
contract may "arise from the language of an employee handbook or manual" that is at odds with
the principles of at-will employment. Carter v. George Wash. Univ., 180 F. Supp. 2d 97, 109
(D.D.C. 2001) (citing Washington Welfare Ass'n, Inc. v. Wheeler, 496 A.2d 613, 615 (D.C.
1985)).
Plaintiff contends that an implied employment contract was created through the
defendant's policies, including the BCBSA Policy document 210: Code of Business Conduct
Standard and Ethics Guidelines for Association Business Practices and the BCBSA 2008
Compensation and Performance Guidelines for Managers. See Pl's Mem. in Opp'n to Def's Mot.
for Summ. J. ("Opp'n") at 5-6. Plaintiff asserts that she was entitled to rely on these documents
because they "relate to employment relationship [sic], employee behavior and provide procedural
requirements to be complied with and conduct to be avoided." Opp'n at 6. In response, defendant
points to the disclaimer BCBSA placed on its human resources ("HR") materials as evidence that
no implied contract was created. See Def's Mot. to Dismiss ("Def's Mot.") at 6-7. The language
in the disclaimer clearly confirms the existence of an at-will employment relationship:
BCBSA reserves the right to eliminate, change, or modify this policy at any
time. Also, the language used in this policy should not be construed as creating
a contract of employment between BCBSA and any of its employees or
otherwise altering an employee's at-will employment relationship with BCBSA.
Def's Mot. at 7; Opp'n at 7.
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Of course, the mere existence of a disclaimer is not enough, on its own, to dispel whether
the parties created an implied contract. See Strass v. Kaiser Found. Health Plan of Mid-Atlantic,
744 A.2d 1000, 10013-14 (D.C. 2000). If a disclaimer is "rationally at odds with other language"
in the employee manual and employer documents, then the presence of a disclaimer is not
dispositive as to the issue of whether an implied contract has been created. Greene v. Howard
Univ., 412 F.2d 1128, 1135 (D.C. Cir. 1969). Although the D.C. Circuit has acknowledged that
language that is at odds with the disclaimer and "clear enough in limiting the right to terminate to
specific causes or events" may overcome the presumption of at-will employment, a disclaimer
that "clearly reserve[s] the employer's right to terminate at will" will be enforced. United States
ex rel. Yesudian v. Howard Univ., 153 F.3d 731, 746 (D.C. Cir. 1998) (citing Sisco v. GSA Nat'l
Capital Fed. Credit Union, 689 A.2d 52, 55 (D.C. 1997)).
Here, the disclaimer contained in BCBSA HR materials clearly establishes that the HR
manuals and distributed polices do not alter any employee's at-will status at BCBSA. Plaintiff
argues that an implied contract exists because the disclaimer did not appear in a limited number of
BCBSA policy documents. Opp'n at 5. The Court does not agree. The sections of the BCBSA
2008 Compensation and Performance Guidelines for Managers that plaintiff refers to are not
"rationally at odds" with the disclaimer language. See Greene, 412 F.2d at 1135; Opp'n at 6;
Def's Reply Mem. at 3. Hence, the language of the policy documents does not overcome the
presumption of at-will employment. There is simply no doubt that an at-will employment
relationship existed between the parties and that it was not altered by any BCBSA HR materials,
and therefore plaintiff's claim of breach of contract will be dismissed.
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II. Wrongful Termination
In the District of Columbia, it is well established that at-will employment can be
terminated for any reason, or no reason, at any time by either party. See Adams v. George W.
Cochran & Co., 597 A.2d 28, 30 (D.C. 1991). However, a very narrow exception to the at-will
doctrine commonly referred to as the "public policy exception" is recognized. Id.Originally, this exception was narrowly crafted to protect employees "when the sole
reason for the discharge [was] the employee's refusal to violate the law, as expressed in state or
municipal regulation." Id. at 34. In Adams, the court recognized the unfair and unproductive
situation employees faced when forced to choose between breaking the law and keeping their job.
Id. The public policy exception serves to protect these employees from otherwise legal
termination under the at-will doctrine. Id. For several years after Adams, courts required a
plaintiff raising a public policy exception as part of a wrongful discharge claim to show by a
preponderance of the evidence that the sole reason for the wrongful discharge was the employee's
refusal to violate the law. Id. at 34. However, recognizing the limitations of this exception, the
court in Carl v. Children's Hosp., 702 A.2d. 159 (D.C. 1997), created a case-by-case standard that
included those claims "solidly based on a statute or regulation that reflects that particular public
policy to be applied or (if appropriate) on a constitutional provision concretely applicable to the
defendant's conduct." Carl, 702 A.2d at 163. This new standard expanded the public policy
exception, but plaintiffs still must show that the exception is "firmly anchored either in the
Constitution or in a statute or regulation which clearly reflects the particular public policy being
relied upon." Id. at 162. It has been found, for example, that plaintiffs that can demonstrate a
close fit between their employment termination and the public policy embodied in whistler
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blower or workplace safety laws can succeed under a Carl analysis. See Warren v. Coastal Intern.
Sec., Inc., 96 Fed. Appx. 722, 722-23 (D.C. Cir. 2004); Davis v. Gables Residential/H.G. Smithy,
525 F. Supp. 2d 87, 101 (D.D.C. 2007). The relationship between the relevant statute or
regulation and the proscribed conduct must be "carefully tethered . . . [and] . . . solidly based."
Carl, 702 A.2d at 164.
Here, the success of plaintiff's claim of wrongful termination hinges on two factors: (1)
whether the clerical tasks plaintiff was assigned to complete for her supervisor Ms. Didawick
were outside the scope of her job description; and (2) if so, was plaintiff's termination closely tied
to the public policy mandate recognized in section 501(c)(3) of the Internal Revenue Code
("IRC").
Ultimately, plaintiff fails to satisfy the requirements for a successful wrongful termination
in violation of public policy claim under either the Adams or the Carl framework. She cannot
succeed under an Adams assessment, because she agreed to perform these tasks several times and
thus was not terminated solely for her refusal to violate the law. See Riggs v. Home Builders
Inst., 203 F. Supp. 2d 1, 15 (D.D.C. 2002) (emphasizing that the plaintiff would not succeed
under an Adams framework "first because of his failure to refuse to violate the laws, and second,
because the 'sole reason' for his termination could not have been his refusal to violate the law"
(citing Thigpen v. Greenpeace Inc., 657 A.2d 770, 771 (D.C. 1995))(emphasis in original)).
Moreover, plaintiff's claim also fails under the more lenient Carl analysis. Plaintiff asserts
that the clerical tasks she was assigned to perform were outside of her job description and the
proper function of the BCBSA, and thus threatened to put the Association's tax-exempt status at
risk. Opp'n at 10. To succeed under Carl, plaintiff must "specify precisely how the alleged
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activities violate section 501(c)(3) under the relevant regulations." Riggs, 203 F. Supp at 13-14.
It is clear that "as with the policy of protecting public health [recognized in earlier public policy
cases], there is a clear mandate of public policy against the subsidization of private political
activity by the taxpayers . . . that is solidly based on section 501(c)(3)." Id. at 21. But plaintiff
has failed to establish the close fit between the public policy mandate and the conduct in question
here. There is, of course, nothing political about the clerical tasks plaintiff was allegedly required
to do.
The court "'need only decide' whether the firing, because of the plaintiff's conduct, 'is
sufficiently within the scope of the policy embodied in the statute so that a court may consider
imposing liability on [the defendant] for [the plaintiff's] termination for otherwise permissible
reasons.'" Riggs, 203 F. Supp. at 21 (quoting Carl, 702 A.2d at 164). The clerical work plaintiff
alleges she was required to perform, however, does not appear to be the type of activity with
which section 501(c)(3) is concerned. Under section 501(c)(3), an organization will not
operationally qualify for tax-exempt status if a substantial part of its activities furthers a non-
exempt purpose. See § 501(c)(3)-1(c)(1). Although a single non-exempt purpose can defeat the
exemption if it is "substantial in nature," the facts alleged by plaintiff do not support such a
finding. See Better Business Bureau v. United States, 326 U.S. 279, 283 (1945).
Plaintiff asserts that defendant required her to perform numerous tasks outside her job
description, but she "does not specify precisely how the alleged activities violate section
501(c)(3)." Riggs, 203 F. Supp. 2d at 14. Again, even if beyond the scope of her regular
assignments, the tasks she performed had no political purpose or appearance that would offend
section 501(c)(3). Plaintiff merely "disagreed with management decisions and [has] not allege[d]
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a violation of law or action contrary to public policy." Liberatore v. Melville Corp., 168 F.3d
1326, 1331 (D.C. Cir. 1999). Hence, plaintiff's complaint fails to satisfy the second prong of
Carl, which requires a "close fit between the policy thus declared and the conduct at issue in the
allegedly wrongful termination." Id. at 21.
Because matters outside the pleadings have been presented to the court on this claim, it
must be treated as one for summary judgment under Rule 56. See Fed. R. Civ. P. 12(d).
Although the party seeking summary judgment bears the initial responsibility of demonstrating
the absence of a genuine issue of material fact, the non-moving party must establish more than the
"mere existence of a scintilla of evidence in support of its position." Anderson , 477 U.S. at 252.
Plaintiff presents no evidence that the tasks she was assigned to perform varied substantially from
the purpose of BCBSA's tax-exempt status such that it put the Association's status under section
501(c)(3) in jeopardy. In addition, the complaint and attached documents, including affidavits
and exhibits, do not show that the conduct at issue in plaintiff's termination was within the scope
of the policy behind section 501(c)(3) such that the relationship between section 501(c)(3) and the
proscribed conduct is "carefully tethered . . . [and] . . . solidly based." Carl, 702 A.2d at 164. The
Court must therefore grant defendant's motion for summary judgment on the claim of wrongful
termination.
III. Intentional Interference with Prospective Economic Advantage
The "tort of intentional interference with a prospective business advantage runs 'parallel
to that for interference with existing contracts.'" PM Servs. Co. v. Odoi Assocs., 2006 U.S. Dist.
LEXIS 655, *108 (D.D.C. Jan. 4, 2006) (citing Brown v. Carr, 503 A.2d 1241, 1247 (D.C.
1986)). To succeed on a claim for intentional interference with a prospective business
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advantage, a plaintiff must show "(1) the existence of a valid business relationship or
expectancy; (2) knowledge of the relationship or expectancy on the part of the interferer; (3)
intentional interference inducing or causing a breach or termination of the relationship or
expectancy; and (4) resultant damage." Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir.
2002) (citing Bennett Enters. v. Domino's Pizza, Inc., 45 F.3d 493, 499 (D.C. Cir. 1995)). And
to survive a motion to dismiss, the plaintiff must "allege 'business expectancies, not grounded in
present contractual relationships, but which are commercially reasonable to expect.'" PM Servs.
Co., 2006 U.S. Dist. LEXIS at *109 (citing Sheppard v. Dickstein, Shapiro, Morin & Oshinsky,
59 F. Supp. 2d 27, 34 (D.D.C. 1999)). The expectancies most often protected by the courts can
best be classified as future contractual relations, such as the prospect of obtaining employment or
the opportunity to obtain and establish customer relations. See Carr v. Brown, 395 A.2d 79, 84
(D.C. 1978).
Here, plaintiff asserts that her supervisor, Ms. Didawick, interfered with her prospect of
obtaining employment. Plaintiff alleges that Ms. Didawick told Ms. Bolton that she did not want
Ms. Bolton to interview plaintiff for a position with the Manager of Communications. See Opp'n
at 19. Plaintiff argues that "but for the actions of Kathy Didawick, [she] would have been
selected for the position." See Opp'n at 20. However, plaintiff fails to address, let alone
articulate facts sufficient to meet, the four-part standard set out in Browning v. Clinton.
Although plaintiff might be able to meet the first two requirements – that a valid business
expectancy existed because she was the only employee qualified for the position and that Ms.
Didawick, as an agent of BCBSA, knew of that expectancy – her claim fails on the third prong of
the analysis, under which plaintiff must show "intentional interference inducing or causing a
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breach or termination of the relationship or expectancy." Browning, 292 F.3d at 235. 1 In order
to satisfy this prong, the conduct at issue must rise to the level of "egregious conduct such as
libel, slander, physical coercion, fraud, misrepresentation, or disparagement." Sheppard, 50 F.
Supp. 2d at 34 (citing Genetic Sys. Corp., v. Abbott Labs., 691 F. Supp. 407, 423 (D.D.C.
1998)). Throughout her complaint and memorandum in opposition, plaintiff fails to articulate
the precise conversation that serves as the basis for her intentional interference with a
prospective economic advantage claim. She alleges only that Ms. Didawick told a BCBSA
employee that she did not care for the plaintiff. See Opp'n at 19. Accepting plaintiff’s allegation
as true, as the court must, the fact that Ms. Didawick informed a BCSBA employee that she did
not care for plaintiff does not rise to the required level of libel, slander, misrepresentation, or
disparagement.
Furthermore, "an employer cannot interfere with its own contract." McManus v. MCI
Commc'ns Corp., 748 A.2d 949, 958 (D.C. 2000); see also American Petroleum Inst. v.
Technomedia Int'l, Inc., No. 09-529, 2010 U.S. Dist. LEXIS 31383 at *33-35; Donohoe v. Watt,
546 F. Supp. 754, 757 (D.D.C. 1982) (holding that "a defendant's conduct under his own contract
with the plaintiff may or may not rise to the level of a breach of that contract, but it cannot
support an action for interference with it"). Tortious interference with an employment contract
arises only when "there is an interference with a contract between the plaintiff and a third party."
1
The Court rejects defendant’s argument that plaintiff fails to satisfy the first prong of the intentional interference
with prospective economic advantage test because plaintiff neglected to specify exactly which of the two available
jobs she applied for in her complaint. See Def's Mot. at 12. The pleading requirements under Fed. R. Civ. P.
12(b)(6) place a minimal burden on the plaintiff in order to survive a motion to dismiss, requiring merely a short and
plain statement establishing that the plaintiff is entitled to relief and providing the defendant with sufficient notice.
See Twombly, 550 U.S. at 555. Plaintiff’s statements that she sought to apply for the open position with the
Manager of Communications and that Ms. Bolton made the alleged comment are sufficient to provide defendant with
notice of the claim and the grounds upon which it rests.
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Donohoe, 546 F. Supp at 757. But here, plaintiff complains only of interference by her employer
with her future employment with that same employer. Hence, plaintiff's claims against her
employer BCBSA for its alleged interference with her future employment at BCBSA must fail.
IV. Negligent Supervision
Finally, plaintiff alleges that defendant failed to properly supervise Ms. Didawick and
ensure that plaintiff was not given assignments outside of her job description and in conflict with
the tax exempt status of BCBSA. See Opp'n at 19. To establish a claim for negligent
supervision, a plaintiff must show that “(1) the . . . employee behaved in an incompetent or
dangerous manner; (2) [the employer] had actual or constructive knowledge of the employee’s
incompetent or dangerous behavior; and (3) despite having this actual or constructive knowledge,
[the employer] failed to adequately supervise the employee.” Mitchell v. DCX, Inc., 274 F. Supp.
2d 33, 51 (D.D.C 2003); see also Giles v. Shell Oil Corp., 487 A.2d 610, 613 (D.C. 1985).
Plaintiff has not done so.
To begin, plaintiff's claim must fail because the Court has dismissed her claims of
wrongful discharge and intentional interference with economic advantage. She no longer has a
claim that can serve as the common law predicate for the negligent supervision claim. Griffin v.
Acacia Life Ins. Co., 925 A.2d 564, 576 (D.C. 2007); Carroll v. Fremont Inv. & Loan, 636 F.
Supp. 2d 41, 54 (D.D.C. 2009). A common law claim of negligent supervision must be
predicated on common law causes of action or duties otherwise imposed by the common law.
Griffin, 925 A.2d at 576.
Moreover, plaintiff fails to provide adequate factual allegations to establish any dangerous
or incompetent behavior on the part of the defendant. Plaintiff references trips to Starbuck's,
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performing clerical work allegedly outside her job requirements, Ms. Didawick’s general dislike
for her, and alleged misuse of corporate resources. See Opp'n at 23; Compl. ¶ 76. This is not an
instance of an agent of the employer engaging in inherently dangerous activity. Plaintiff must
demonstrate that BCBSA knew or should have known its employee behaved in a dangerous or
otherwise incompetent manner and that BCBSA, "armed with that actual or constructive
knowledge, failed to adequately supervise the employee." Brown v. Argenbright Sec., Inc., 782
A.2d 752, 760 (D.C. 2001) (citing Giles, 487 A.2d at 613). Here, plaintiff has failed to offer any
evidence that the defendant knew or should have known that Ms. Didawick behaved in an
incompetent or dangerous manner in the past or even in the instant circumstance. This Court does
not find that Starbuck's runs and one employee expressing dislike for another employee rise to the
level of incompetent or dangerous behavior required to support the tort of negligent supervision.
Therefore, because plaintiff has not pled an underlying common law tort upon which a
claim of negligent supervision can be based, and has not alleged sufficient facts to show
incompetent or dangerous behavior, plaintiff's claim of negligent supervision must be dismissed.
CONCLUSION
Accordingly, the Court will dismiss plaintiff's claims for breach of contract, intentional
interference with prospective economic advantage, and negligent supervision, and will grant
summary judgment in favor of the defendant on plaintiff's claim of wrongful termination in
violation of public policy. A separate order has been issued on this date.
/s/
JOHN D. BATES
United States District Judge
Dated: December 21, 2010
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