Odutola v. Branch Banking and Trust Company ( 2018 )

FILED
UNITED STATES DISTRICT COUR'I`` AUG 0 7 2018
FOR THE DISTRICT OF COLUMBIA
C\erk, U.S./District & Bankruptcy
Courts for the D\str\ct of Co|umb\a
)
OLUWAROTIMI ODUTOLA, )
)
Plaintiff, )
)
v. )
)
BRANCH BANKING AND TRUST ) Case No. 18-cv-00094-RCL
COMPANY, )
)
Defendant. )
)
MEMORANDUM OPINION
Now before the Court are plaintiff’ s Motion to Remand to State Court [ECF No. 7] and
`` defendant’s Motion to Dismiss [ECF No. l3]. Upon consideration, plaintiffs Motion to Remand
to State Court is DENIED. Furthermore, defendant’s Motion to Dismiss is GRANTED. Counts
l and III of plaintiffs complaint are DISMISSED WITH PREJUDICE. Counts ll and IV of the
complaint are DISMISSED WITHOUT PREJUDICE.
I. Backgroundl
Plaintiff, Oluwarotimi Odutola, Worked for defendant, Branch Banking and Trust
Company, as a personal banker from October 17, 2015 to November 22, 2016. Am. Compl. 11 6.
ln October of 2016, plaintiff had several incidents at Work. See id. 1111 9-94.
First, plaintiff became concerned when his Superiors attempted to convince plaintiff to
violate defendant’s corporate policy by leaving a branch of the bank With only one teller Working.
Id. 1111 9-12. Plaintiff attempted to raise his concerns in a meeting With his manager the next day.
1 The recited facts are taken from the plaintiffs’ complaint, Which for the purpose of the motion to dismiss, the court
accepts as true.
Id. 11 l3. But the manager reprimanded plaintiff for not doing as he was told and used
discriminatory language in the process. Ia’. 1[ 13-15.
Just a few days later, plaintiff had an altercation with a customer. Id. 111 27-46. The
customer came into the bank and approached plaintiff s window at the teller counter, trying to cash
a suspicious check. Id. 1111 24-25. When plaintiff told the customer that he needed to provide
verification, the customer became enraged at plaintiff Ia'. 1111 25-32. Plaintiff asked the customer
to leave the premises, further angering the customer and causing him to make serious threats to
plaintiff s life. ld. 1111 33-35. Plaintiff came around the teller line window to try to alert the branch
manager, but the customer blocked his path. Id. 1111 36-41. A coworker tried to deescalate the
situation, grabbing the customer’s check and ID in order to notify the authorities Id. 1111 42-43.
Finally, the branch manager came out of her office; she returned the check and ID to the customer,
who left the store. Id. 1111 44-46.
Plaintiff was incredibly disturbed by the whole incident and the fact that the branch
manager never intervened or even reported the customer. Id. W 47-50. ln a meeting with the
branch manager, he told the manager that he planned to report both the incident With the customer
and the discriminatory language from the earlier meeting to the Equal Employment Opportunity
Commission (“EEOC”) and the Occupational Safety and Health Administration (“OSHA”). Ia'. ‘|l
55. Additionally, he wished to file a grievance report with defendant’s human resources
department Id. 11 57. The branch manager responded by making discriminatory remarks to
plaintiff and threatening to terminate his employment if he reported the incident. Id. 1[1] 55-6().'
Plaintiff eventually called the police to report the altercation with the customer. Id. 1111 77-
85. lmmediately after an officer came to question the branch manager, plaintiff was placed on
administrative leave. Ia'. 11 86. On October 19, 2016, he filed a claim with the EEOC. And on
November 22, 2016, the plaintiffs employment with the defendant was terminated. Ia’. 11 94.
On October 27, 2017, plaintiff filed the instant lawsuit in D.C. Superior Court. On
December 22, 2017, plaintiff amended his complaint seeking $4.3 million in damages and listing
four counts: (l) negligence; (2) hostile work environment; (3) violation of public policy; and (4)
retaliation. Am. Compl. 1111 95-209. Plaintiff is proceeding pro se.
II. Plaintiff s Motion to Remand to State Court is Denied
Plaintiff originally filed this suit in D.C. Superior Court. On January 16, 2018, defendant
filed a notice of removal, removing the case to this Court. Plaintiff now moves to remand the case
to Superior Court. For the reasons set forth below, plaintiffs motion is denied.
A. Legal Standard
Civil actions filed in state court may be removed to a United States district court by the
defendant so long as the case could have originally been filed in federal court. 28 U.S.C. § 1441 (a)
(2012). However, “[i]f at any time before final judgment it appears that the district court lacks
subject matter jurisdiction, the case shall be remanded.” Id. § 1447(0). A challenge to subject
matter jurisdiction may be raised on a motion to remand by the parties. Id. A “party opposing a
motion to remand bears the burden of establishing that subject matter jurisdiction exists in federal
court.” lnt’l Union of Bricklayers & Allied Craftworkers v. Ins. C0. of the W., 366 F. Supp. 2d 33,
36 (D.D.C. 2005) (citation omitted).
B. The Present Case is Properly Removable
Plaintiff appears to challenge whether the case is properly removable and whether the
defendant followed proper procedures in removing the case.
First, the plaintiff challenges diversity jurisdiction Pl.’s Mot. to Remand 1111 1~2. Federal
district courts have original diversity jurisdiction over civil actions in which (a) the amount in
controversy exceeds $75,000, and (b) all adverse parties are citizens of different states. 28 U.S.C.
§ 1332(a). Plaintiff claims that both defendant and himself are citizens of the District of Columbia
and, thus, not diverse. Pl.’s Mot. to Remand 1111 1-2. Specifically, plaintiff points to the fact that
defendant has “multiple branches and conducts business and all bank functions in the District of
Columbia.” Id. at jj 1. However, this is not the test.
A corporation is a citizen of both (a) the state of its incorporation, and (b) the state in which
it maintains its principal place of business 28 U.S.C. § 1332(0)(1). A corporation’s principal
place of business is its “nerve center”. Ordinarily, this is the place from Which its officers and
directors supervise and direct the corporation’s operations, or the corporation’s headquarters 'See
Herlz Corp. v. Friend, 559 U.S. 77, 92-93, 130 S. Ct. 77, 175 L. Ed. 2d 1029 (2010). Here,
defendant is a citizen of North Carolina. That is where the bank is incorporated, where it maintains
its headquarters, and where its officers and executives supervise and direct the bank’s operations
Branch Banking and T rust Company, North Carolina Secretary of State,
https://www.sosnc.gov/online_services/search/Business_Registration_Results (stating that
defendant has been incorporated in North Carolina since 1974 and maintains its principal office in
Winston-Salem, North Carolina); see also Corporate Information, BB&T,
https://bbt.investorroom.com/corporate-information (stating that defendant’s headquarters are in
North Carolina). Because plaintiff is a citizen of the District of Columbia and defendant is a citizen
of North Carolina, the parties are diverse. The case is properly removable
Second, plaintiff claims defendant did not follow the proper procedures for removal.2 ln
order to properly remove a case, a defendant must file a notice of removal “within 30 days after
the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting
forth the claim for relief upon which such action or proceeding is based[.]” 28 U.S.C. § 1446(b)(1).
Here, according to the D.C. Superior Court docket, the plaintiff filed his initial complaint
on October 27, 2017. Odutola v. BB&T, No. 2017-CA~007250 (D.C. Superior Court), docket
available at https://eaccess.dccourts.gov/eaccess/home.page.9. A summons was issued, but no
proof of service was retumed. Id. Plaintiff then filed an amended complaint on December 22,
2018. Id. Defendant claims that this was the first notice of the lawsuit that it received. See Def.
Notice of Removal 11 l. And without any proof of service, the Court has no reason to suspect
otherwise Defendant then filed a notice of removal less than 30``days later on January 16,``2018.
The notice of removal included a certificate of service The Court finds the defendant followed
the proper procedure
Because the case is removable and because defendant followed proper procedure under 28
U.S.C. § 1446, plaintiffs motion to remand is denied.
III. Defendant’s Motion to Dismiss
The defendant moves, pursuant to Federal Rule of Civil Procedure Rule 12(b)(6), to
dismiss plaintiffs complaint for failure to state a claim upon which relief may be granted. In
plaintiffs complaint, he asserts four causes of action: (1) negligence; (2) hostile work
environment; (3) violation of public policy; and (4) retaliation. Am. Compl. THI 95-209. Defendant
believes all of these claims must be dismissed For the reasons set forth below, the claims for
z Plaintiffs argument relating to the procedure of removal is quite unclear. But because plaintiff is proceeding pro
se, the Court constructs his pleadings liberally and will examine the removal procedure
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negligence and violation of public policy are dismissed with prejudice, while the claims for hostile
work environment and retaliation are dismissed without prejudice
A. Legal Standard
To survive a Rule 12(b)(6) 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. lqbal,
556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). When considering a motion to
dismiss under Rule 12(b)(6), “the court must assume ‘all the allegations in the complaint are true
(even if doubtful in fact),’ and the court must give the plaintiff the benefit of all reasonable
inferences derived from the facts alleged.”’ Aktieselskabet AF 21 . Nov. 2001 v. Fame Jeans Inc.,
525 F.3d 8,' 17 (D.C. Cir. 2008) (internal citations omitted).
A plaintiff proceeding pro se is held to a “less stringent” standard than a lawyer, and the
court must construe his claims liberally. Erickson v. Para'us, 551 U.S. 89, 94, 127, S.Ct. 2197,
167 L. Ed. 2d 1081 (2007). However, a pro se plaintiff is not exempt from Rule 12(b)(6)
requirements See Atherton v. D.C. Ojj?ce ofthe Mayor, 567 F.3d 672, 681-82 (D.C. Cir. 2009).
B. Plaintiff s Negligence Claim is Barred by the D.C. Workers’ Compensation Act
In Count 1 of plaintiffs complaint, he claims that defendant acted negligently in
connection with an October 14, 2016 altercation with a customer causing defendant injury. Am.
Compl. 1111 95-150. Specifically, he alleges that defendant failed to follow its own internal
procedures for reporting the altercation, failed to alert proper authorities about the altercation, and
failed to take precautions to protect him from future harm by the customer. Am. Compl. 1111 104-
108, 148. He claims the defendant breached a duty to provide him with a safe workplace, causing
him emotional and psychiatric injury. Id. 1111 101, 122-25, 132, 136, 138, 141-46.
The District of Columbia’s Workers’ Compensation Act (“WCA”) precludes such a claim.
The WCA applies, in relevant part, to “injury . . . of an employee that occurs in the District of
Columbia if the employee performed work for the employer, at the time of the injury or death,
while in the District of Columbia[.]” D.C. CODE § 32-1504(b). “The types of injuries covered by
the WCA are broadly defined to encompass ‘accidental injury or death arising out of and in the
course of employment . . . and includes an injury caused by the Willful act of third persons directed
against an employee because of his employment.”’ Lockhart v. Coastal Int’l Sec., Inc., 905 F.
Supp. 2d 105, 116 (D.D.C. 2012) (quoting D.C. CODE § 32-1501(12)). This includes claims for
emotional distress or mental anguish Where the underlying cause or tort is covered by the WCA.
Vanzam‘ v. Washington Metro. Area Transit Auth., 557 F. Supp. 2d 113, 117 (D.D.C. 2008). And
for these D.C. workplace injuries', the compensation provided under the law “constitute[s] the
employee’s exclusive remedy against the employer[.]” D.C. CODE § 32-1504(b). This
“exclusivity of remedy to employees is a fundamental part of the bargain reflected in workers’
compensation laws[.]” Lockhart, 905 F. Supp. 2d at 16.
Plaintiff does not dispute that he was an employee of defendant and that he Was at work
when the altercation on October 14, 2016 took place. Injuries resulting from an employee’s
altercation with a customer while the employee is working fall under the WCA. And so, defendant
is “immune from” plaintiffs “tort action[] . . . for personal injuries arising out of and in the course
of [his] employment, whether or not [he] exercise[d] [his] right to obtain workers’ compensation
benefits.” Id. (citing Georgetown Univ. v. D.C. Dep’t of Emp ’t Servs., 830 A.2d 865, 868, n.l
(D.C. 2012)). Plaintiff s negligence claim is dismissed with prejudice
C. Plaintiff’s Title VII Hostile Work Environment and Retaliation Claims Appear to
be Time-Barred; Plaintiff may make a Motion for Leave to Amend his Complaint
Counts 2 and 4 of the complaint allege that (a) plaintiff was subjected to a hostile working
environment based on his race, sex, nation origin, and color; and (b) he was retaliated against for
filing an internal grievance and contacting the EEOC. These are both Title VII claims
Under Title VII, a plaintiff must file a civil action within 90 days of receiving notice from
the EEOC of a right to sue See 42 U.S.C. § 2000e-5(f)(1). The 90-day time limit is not
jurisdictional; rather it functions like a statute of limitations and may be raised in a pre-answer
dispositive motion. See Smith~Haynie v. District of Columbia, 155 F.3d 575, 577-79 (D.C. Cir.
1998). Courts strictly construe the 90-day deadline and will dismiss suits filed even one day late
See, e.g., Wooa'ruffv. Peters, 482 F.3d 521 , 525 (D.C. Cir. 2007); Summers v. Howara' Univ. Hosp.,
300 F. Supp. 3d 268, 270 (D.D.C. 2018).
' ln the plaintiffs complaint, he states that he called the EEOC on October``l9, 2016 and
filed a claim for discrimination and retaliation. He mentions no other communication with the
EEOC in the complaint The EEOC issued a right-to-sue letter five days later on October 24, 2016
(the “October 2016 Letter”). See Def.’s Mot. to Dismiss Ex. B. But the plaintiff did not file suit
until over a year later on October 27, 2017. This is well outside of the statutory 90-day deadline
But the plaintiff claims in his response to defendant’s motion that this was an error by the
EEOC and that EEOC issued a “corrected” right-to-sue letter on August 24, 2017 (the “August
2017 Letter”). Plaintiff attaches “proof’ of this in his Amended Motion for Leave for Plaintiff to
File a Sur-reply to Defendant’s Motion to Dismiss [ECF No. 17]. He attaches an email from
Monica Colunga, a WFO Enforcement Supervisor at the EEOC, which states:
On October 20, 2016, you filed a charge of discrimination (EEOC Charge No. 570-
2017-00130). That charge included allegations of retaliation and sex/male
discrimination Because the initial charge failed to include additional allegations a
second charge (EEOC Charge Number 570-2017-013640) was filed on August 18,
2017. That charge included [sic] of sex/male, national origin, race/Black African
American, retaliation and color allegations
Am. Mot. for Leave for Pl. to File a Sur-Reply to Def.’s Mot. to Dismiss at Ex. l. Because of the
August 2017 Letter, plaintiff claims he is within the 90-day time limit and can permissibly bring
these claims before the Court.
Defendant disagrees First, defendant argues that there is not sufficient proof that the
EEOC reconsidered its original position. Plaintiff has not provided the Court with a Notice of
Reconsideration. And the second charge has a different charge number altogether. Second,
defendant argues that even if the EEOC reconsidered its original decision, it did not withdraw the
letter and plaintiffs suit is, therefore, still untimely. See 29 C.F.R. § 1601 .2l(b)(l). “If the EEOC
issues a notice of its intent to reconsider within 90 days after a right to sue letter is issued, and ‘the
charging party has not filed suit . . . the notice of intent to reconsider will vacate the dismissal or
letter of determination and revoke the notice of right to sue.”’ Obaseki v. Fanm``e Mae, 840 F.
Supp. 2d 341, 344-45 (D.D.C. 2012) (quoting 29 C.F.R. § 1601.21(b)(1)). But if “the EEOC did
not move to reconsider until after the initial time frame for Plaintiff to file suit, the EEOC’s
reconsideration did not revive the ninety day limit, and Plaintiff s suit is untimely.” Id. at 345.
Defendant’s position is correct and requires dismissal to the extent plaintiff seeks to sue
for the allegations of retaliation and sex discrimination from the October 2016 charge But as
defendant points out, the August 2017 Letter has an entirely different charge number. And as Ms.
Colunga states in her email, it includes additional allegations Reading the plaintiffs pro se
complaint most liberally, plaintiff may have been attempting to sue based on both charges
However, the complaint itself does not make any Such distinction. And the complaint fails to
mention the August 2017 Letter entirely. But if it had distinguished between the two letters, some
of the allegations related to the August 2017 charge may be timely. The Court, therefore, believes
that justice and equity favor giving the pro se plaintiff a second chance at stating a claim.
The Court dismisses the hostile work environment and retaliation claims without prejudice
Within thirty (30) days, the plaintiff may make a motion for leave to amend the complaint If the
plaintiff chooses to take this route, the Court directs him to include only those allegations in his
complaint from the August 2017 charge and none of the allegations from the October 2016. The
Court also notes that if the August 2017 charge was simply a second charge filed by the plaintiff
based on the same conduct by defendant, it may be untimely. Title VII requires a complainant to
file charges with the EEOC within 180 days after the occurrence of the alleged discrimination, or
within 300 days of such occurrence if the complainant has initially instituted state proceedings 42
U.S.C. § 2000e-5(e)(1). The August 18, 2017 charge was filed over 300 days after the alleged
discrimination in October 2016. In short, if the plaintiff decides to move for leave to amend, he
should provide as many details as possible related to the substance of the Augu‘st 2017 charge and
its distinctions from the October 2016 charge Plaintiff should also include allegations related to
his communication with EEOC in association therewith so that the Court may properly determine
whether the second charge is, itself, timely.
D. Plaintiff’s Wrongful Termination Claim
In Count III of the complaint, plaintiff alleges that the defendant terminated him in
violation of public policy. Specifically, plaintiff claims “[d] efendant terminated the [p]laintiff for
contacting OSHA, EEOC and calling 911 in direct retaliation for exposing their negligence and
unethical practices.” Am. Compl. 11 191.
Employment in the District of Columbia is, by default, at will. Carl v. Children ’s Hosp.,
702 A.2d 159, 162 (D.C. 1997). But the D.C. Court of Appeals has recognized an exception for
wrongful terminations in violation of a "clear mandate of public policy.” Coleman v. District of
Columbia, 828 F. Supp. 2d 87, 96 (D.D.C. 2011) (quoting Riggs v. Home Builders Inst., 203 F.
10
Supp. 2d 1, 21 (D.D.C. 2002). This is a narrow exception Rosella v. Long Rap, Inc., 121 A.3d
775, 778 (D.C. 2015). “Not only must a plaintiff plead a ‘clear mandate of public policy,’ but this
public policy must be one that is not already protected by another statute” Jones v. District of
Columbia Water & Sewer Aulh., 943 F. Supp. 2d 90, 94 (D.D.C. 2013).
Here, plaintiff fails to identify a clear mandate of public policy that does not already
provide a statutory enforcement scheme The plaintiff mentions both Title VII and OSHA as
potential sources of public policy. But neither of these can support a wrongful termination suit
because both of those statutes provide their own enforcement mechanisms See 42 U.S.C. § 2000e-
5(f)-(e) (Title VII); 29 U.S.C. § 660(c) (OSHA). Plaintiff may not “eschew [these statutes’]
administrative remed[ies] and instead obtain recovery against the employer on a tort theory of
' wrongful discharge under the narrow ‘public ``policy’ exception to the employment-at-will
doctrine.” See Nolling v. Nat’l Capital Group, lnc., 621 A.2d 1387, 1390 (D.C. 1993).
The only other source of policy plaintiff appears to rely on in his complaint is the corporate
policies listed in defendant’s employee handbook. Am. Compl. jH[ 179-82, 197. But plaintiff does
not explain to the Court how defendant’s corporate policy could be considered a clear mandate of
public policy. The D.C. Court of Appeals has been reluctant to expand the exception to cover
“‘nebulous’ concepts of public policy.” See Rosella, 121 A.3d at 778. So too is this Court.
Plaintiff fails to state a claim for wrongful termination in violation of public policy.
III. Conclusion
For the reasons stated herein, plaintiffs Motion to Remand [ECF No. 7] is DENIED.
Additionally, defendant’s motion to dismiss [ECF No. 13] is GRANTED. Plaintiffs claims for
negligence and wrongful termination are DISMISSED WITH PREJUDICE. Plaintiffs Title
VII claims for hostile work environment and retaliation are DISMISSED WITHOUT
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PREJUDICE. Within thirty (30) days, the plaintiff may make a motion for leave to amend the
complaint to include only those allegations related to the October 2017 EEOC charge In coming
to its decision, the Court considered plaintiffs sur-reply. As such, plaintiffs Amended Motion
for Leave to File a Sur-reply [ECF No. 17] is GRANTED. Plaintiff s Motion for Leave to File a
Sur-reply [ECF No. 16] is DENIED AS MOOT. An order consistent with this holding
accompanies this opinion
DATE¢ y/?j{ z C`` fw
Rdyce C. Lamberth
United States District Judge
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