Abdelhady v. George Washington University

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
HDEEL ABDELHADY,
Plaintiff,
v. Case No. 1:22-cv-01334 (TNM)
GEORGE WASHINGTON UNIVERSITY,
et al.,
Defendants.
MEMORANDUM OPINION
Hdeel Abdelhady, a law professor, fell on a staircase at the George Washington
University Law School campus. She promptly filed for workers’ compensation benefits with her
employer, George Washington University (GW), which PMA Management Corporation (PMA)
helped administer on GW’s behalf. Abdelhady now sues GW and PMA for claims arising out of
her fall and their handling of her workers’ compensation claim. Her claims run the gamut from
common law negligence to violations of federal racketeering and civil rights laws.
Defendants move to dismiss all counts. They argue that the District of Columbia’s
Workers’ Compensation Act provides the exclusive remedy for Abdelhady’s injury. In the
alternative, they move for summary judgment and offer evidence in support. Because the
Workers’ Compensation Act provides Abdelhady’s exclusive remedy, the Court will grant
Defendants summary judgment on her negligence claim. The Court will dismiss the remaining
counts for failure to state a claim.
I.
GW employed Abdelhady as a part-time law professor. Am. Compl. (Compl.) ¶ 3, ECF
No. 13. In May 2019, she attended an “adjunct appreciation luncheon” on GW’s campus. Id.
1
¶ 9. As she left, she fell after stepping “on an uneven, sticky, and additionally hazardous stair
surface.” Id. ¶ 12. She hit the wall at the bottom of the stairwell, injuring her head, face, wrist,
hand, and fingers. See, e.g., id. ¶¶ 14, 29–30. Abdelhady was taken to The George Washington
University Hospital, where medical personnel diagnosed her with a traumatic brain injury. Id.
¶ 27. The Hospital later billed her directly for “thousands of dollars” of treatment. Id. ¶ 91. Her
doctor also referred her to specialists in neurology, ophthalmology, and plastic surgery. Id. ¶ 38.
Abdelhady “presumed” that the D.C. Worker’s Compensation Act (WCA), D.C. Code
§ 32-1501, et seq., applied to her injury. Id. ¶¶ 92, 135. So within a week of her accident,
Abdelhady filed an incident report with GW’s Office of Risk Management, and she later sent her
hospital bills to GW at its request. Id. ¶ 96–98. She then learned of PMA’s role as GW’s third-
party insurance administrator. Id. ¶ 99.
But Defendants “immediately after the accident decided to not pay any wage
indemnification to . . . Abdelhady, while knowing that [she] had not returned to work.” Id.
¶ 109. Two weeks after Abdelhady filed her incident report with GW, GW filed a Notice of
Controversion with the D.C. Department of Employment Services (Employment Services). Id.
¶ 115. The Notice “denied workers’ compensation for the reasons that continuing disability was
‘contested’ and that ‘no medical documentation had been received to support continuing
disability payments.’” Id. (cleaned up). A few weeks after that, Defendants filed another Notice
of Controversion “stating that workers’ compensation insurance was denied, on the grounds of
(1) no causal relationship to employment; (2) continuing disability contested; and, (3) other.” Id.
¶ 122 (cleaned up).
Abdelhady “filed a workers compensation claim [with Employment Services] under the
belief that GWU held appropriate workers compensation coverage and that she was acting within
2
the scope of her employment.” Id. ¶ 145. Defendants did not pay Abdelhady wage
indemnification for 45 days. Id. ¶ 123. Defendants eventually paid her. Id. But she alleges the
payments were less frequent and smaller than “as mandated by the [WCA].” Id. So she filed “an
application for a formal hearing to adjudicate her claims against [Defendants] for unpaid wage
indemnification, unfurnished medical support, and bad faith” with Employment Services. Id.
¶ 147. Abdelhady claims that GW then filed a “false ‘payroll record’ omit[ting] GWU’s salary
payment to . . . Abdelhady of May 31, 2019,” with Employment Services to reduce its liability.
Id. ¶ 189–92.
During the prehearing discovery phase, Defendants obtained nine subpoenas for
Abdelhady’s medical and law firm records from the administrative law judge (ALJ) presiding
over her claim. Id. ¶ 174. She claims that Defendants’ lawyer had ex parte communications
with the ALJ and offered to help her secure a Maryland judgeship. Id. ¶ 154. Abdelhady
contends these subpoenas were illegal and thus caused four of her medical providers to release
privileged medical information in violation of their fiduciary duty to her. Id. ¶¶ 175–76.
Afterward, Abdelhady’s “administrative case was dismissed without a formal hearing, for
the stated reason that [she] did not comply with [Defendants’] discovery requests, including for
her law firm client and business records.” Id. ¶ 160. She then petitioned for review of the ALJ’s
order with the D.C. Court of Appeals, which the court dismissed for failure to exhaust
administrative remedies. See Abdelhady v. D.C. Dep’t of Emp’t Servs., No. 20-AA-176 (D.C.
Feb. 22, 2022). 1
1
Courts may consider “public records subject to judicial notice.” Vasser v. McDonald, 228 F.
Supp. 3d 1, 10 (D.D.C. 2016).
3
Proceeding with counsel, this suit—and then a flurry of dispositive and miscellaneous
motions 2—followed. GW moved to dismiss all claims, arguing that the WCA provides the
exclusive remedy for Abdelhady’s work-related injury. See GW Mot. to Dismiss (GW MTD),
ECF No. 17. In the alternative, GW moved for summary judgment and submitted evidence
showing its WCA coverage. See GW Mot. for Summ. J. (GW MSJ), ECF No. 18. Then PMA
filed its own motion to dismiss, joining and adopting GW’s positions. 3 See PMA Mot. to
Dismiss (PMA MTD), ECF No. 23. These motions are ripe for decision. This Court has
jurisdiction under the federal question statute, 28 U.S.C. § 1331, and the diversity statute, 28
U.S.C. § 1332. See also 28 U.S.C. § 1367.
II.
To pass muster under Rule 12(b)(6), a complaint must contain sufficient factual
allegations that, if true, “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when the facts “allow[] the
2
Taking just one example, Abdelhady filed a notice of appeal of this Court’s minute order
granting in part and denying in part her motion to seal various documents filed by GW. See
Notice of Appeal, ECF No. 57; Min. Order Sept. 26, 2022. And GW then moved to strike. ECF
No. 60. The Court will deny the motion as moot because Abdelhady’s notice of appeal is
defective and thus does not deprive this Court of jurisdiction. See Gilda Indus., Inc. v. United
States, 511 F.3d 1348, 1350 (D.C. Cir. 2008) (“[W]here the deficiency in a notice of appeal by
reason of . . . reference to a non-appealable order . . . is clear to the district court, it may
disregard the purported notice of appeal and proceed with the case, knowing that it has not been
deprived of jurisdiction”).
3
Abdelhady has moved to strike PMA’s reply to her opposition to PMA’s motion to dismiss
because the reply was untimely. ECF No. 49. PMA concedes its reply was untimely and asks
the Court to grant an extension, explaining that a clerical error caused the delay. See ECF No.
52-2 at 2. The Court will deny the motion to strike. See Fed. R. Civ. P. 6(b)(1)(B) (courts may
extend the time “on motion made after the time has expired if the party failed to act because of
excusable neglect”). When the reply raises new arguments, the Court does not consider them.
The Court will also deny Abdelhady’s motion for reconsideration, ECF No. 22, of this Court’s
order granting PMA an extension of time to file a responsive pleading. See Min. Order August
4, 2022.
4
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). And courts must accept plaintiffs’ factual
allegations as true and grant in their favor “all inferences that can be derived from the facts
alleged.” L. Xia v. Tillerson, 865 F.3d 643, 649 (D.C. Cir. 2017) (cleaned up).
Yet courts need not credit “a legal conclusion couched as a factual allegation.” Iqbal,
556 U.S. at 678 (cleaned up). Courts consider “only the facts alleged in the complaint, any
documents either attached to or incorporated in the complaint[,] and matters of which [it] may
take judicial notice.” Hurd v. District of Columbia, 864 F.3d 671, 678 (D.C. Cir. 2017).
A court may grant summary judgment “if the movant shows 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 Court credits the nonmoving party’s factual allegations and draws all
justifiable inferences in her favor when ruling on a summary judgment motion. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). But “if the evidence is merely colorable, or is not
significantly probative, summary judgment may be granted.” Id. at 249–50.
Abdelhady now proceeds pro se. Yet she is “not automatically subject to the very liberal
standards afforded to a non-attorney pro se plaintiff because an attorney is presumed to have a
knowledge of the legal system and needs less protections from the court.” Robinson v. Howard
Univ., Inc., 335 F. Supp. 3d 13, 22 (D.D.C. 2018) (cleaned up), aff’d sub. nom., Robinson v.
Wutoh, 788 F. App’x 738 (D.C. Cir. 2019). For starters, Abdelhady is practicing member of the
D.C. Bar. See Compl. ¶ 55; Affidavit of Hdeel Abdelhady (Abdelhady SMJ Aff.) ¶ 12, ECF No.
26-5. More, Abdelhady began proceeding pro se after substantive briefing on Defendants’
dispositive motions had finished. See ECF No. 41. Thus, Abdelhady’s pleadings are not entitled
to the special solicitude that courts ordinarily give to pro se parties.
5
III.
For every claim except Count I (negligence), Defendants argue that, even if the WCA
does not apply, Abdelhady’s allegations fail to state a claim upon which relief can be granted. 4
The Court agrees.
A.
Count II alleges that Defendants violated the Racketeer Influenced and Corrupt
Organization (RICO) Act, 18 U.S.C § 1962, by “acting as an enterprise to make money and
subvert the [WCA].” Compl. ¶ 304; see also 18 U.S.C. § 1964. Defendants seek dismissal of
this claim for three reasons. First, they suggest that Abdelhady failed to sufficiently allege a
“pattern” of racketeering activity necessary to state a claim. Second, they contend that
Abdelhady failed to plead her allegations of fraud with sufficient particularity, as required by
Federal Rule of Civil Procedure 9(b). Last, they argue that Abdelhady does not have an adequate
property interest in workers’ compensation benefits to establish the injury to property required
for a RICO cause of action. The Court agrees that Abdelhady failed to allege a pattern of
racketeering activity or that she suffered an injury to property, and thus it will dismiss Count II
for failure to state a claim. 5
Dismissal is warranted under Rule 12(b)(6) because Abdelhady failed to allege a
plausible “pattern of racketeering activity.” 18 U.S.C. § 1962. RICO requires a plaintiff to
4
PMA argues for first time in its reply that all counts alleging negligence should be dismissed as
to them because, as the third-party administrator of GW’s compensation claims, PMA had no
duty to Abdelhady directly. See Reply to Opp’n PMA MTD at 5–6, ECF No. 35. The Court will
not consider arguments raised for the first time in reply. See, e.g., Lu v. Lezell, 45 F. Supp. 3d
86, 91 (D.D.C. 2014).
5
Because the Court concludes that Abdelhady failed to allege a pattern of racketeering activity
necessary to state a RICO claim, it need not reach Defendants’ arguments about whether
Abdelhady plead the predicate acts with sufficient particularity under Rule 9(b).
6
establish “(1) the conduct (2) of an enterprise (3) through a pattern of racketeering activity.”
Salinas v. United States, 522 U.S. 52, 62 (1997). A “pattern” requires at least two predicate acts
of racketeering activity. Id. “These predicate offenses are acts punishable under certain state
and federal criminal laws, including mail and wire fraud.” W. Assocs. Ltd. P’ship, ex rel. Ave.
Assocs. Ltd. P’ship v. Mkt. Square Assocs., 235 F.3d 629, 637 (D.C. Cir. 2001) (cleaned up)
RICO’s “pattern” requirement prevents “ordinary business disputes from becoming
viable RICO claims.” W. Assocs. Ltd. P’ship, 235 F.3d at 637. This element requires the
predicate acts to be both related and continuous. H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229,
239 (1989).
Defendants argue that Abdelhady fails to allege plausibly a “pattern” of racketeering
activity because all her allegations relate to a single alleged scheme to deprive her of asserted
rights under the WCA. GW MTD at 16–17. The Court agrees. Allegations of a “single
scheme” that entails “but a single discrete injury” suffered by a “small number of victims” does
not establish a pattern of racketeering activity. Edmonson & Gallagher v. Alban Towers Tenants
Ass’n, 48 F.3d 1260, 1265 (D.C. Cir. 1995); accord Ambellu v. Re’ese Adbarat Debre Selam
Kidist Mariam, 387 F. Supp. 3d 71, 82 (D.D.C. 2019). And that is what Abdelhady alleges here.
In her opposition, Abdelhady points to six alleged acts as establishing a pattern of
racketeering activity. See Opp’n GW MTD at 26 (citing Compl. ¶¶ 36, 116, 122, 154, 196, 266).
Three of these allegations pertain to Abdelhady’s claim that GW filed false Notices of
Controversion with Employment Services while administering her compensation claim. See
Compl. ¶¶ 36, 116, 122. Two other acts allege improper communications between Defendants’
attorney and the ALJ presiding over Abdelhady’s claim. See id. ¶¶ 154, 196. Taken together,
these allegations describe at most a “single scheme” to deprive Abdelhady of WCA benefits,
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“with no potential to extend to other persons or entities.” Edmonson, 48 F.3d at 1265 (cleaned
up). So the alleged acts of Defendants in administering her compensation claim do not show a
pattern of racketeering activity.
Nor does the last allegation Abdelhady points to transform her dispute over workers’
compensation benefits into a plausible RICO claim. She suggests that Defendants’ pattern of
racketeering activity went beyond their attempts to deny her workers’ compensation benefits
specifically. She claims that GW “specifically underreported claims and employment data” to
Employment Services to decrease its required contributions into government funds that support
the workers’ compensation system. Opp’n GW MTD at 28; see Compl. ¶¶ 252, 256. This is
unavailing.
Recall that to show a pattern of racketeering activity, Abdelhady must show continuity.
That is, she must allege “that the predicates themselves amount to, or that they otherwise
constitute a threat of, continuing racketeering activity.” H.J. Inc., 492 U.S. at 239. Abdelhady’s
allegations fall far short. She has alleged no specific continuing acts of wire or mail fraud. She
merely claims that Defendants’ “pattern of conduct was and is fraudulent.” Compl. ¶ 308. This
allegation is not well-pleaded, Iqbal, 556 U.S. at 678, and Abdelhady fails to “identify [any]
other reasons to believe that the specter of RICO violations remains.” Ambellu, 387 F. Supp. 3d
at 86. Thus, she has not plausibly alleged “activities that amount to or threaten long-term
criminal activity” sufficient to state a RICO claim. H.J. Inc., 492 U.S. at 243 n.4.
But Abdelhady has another problem, too. Even if she had plausibly alleged a pattern of
racketeering activity, her RICO claim would still fail because she lacks statutory standing.
Abdelhady brings her RICO claim under 18 U.S.C. § 1964(c), which provides a cause of action
for “[a]ny person injured in his business or property by reason of a violation of [18
8
U.S.C. § 1962].” No matter which unlawful act under § 1962 Defendants are alleged to have
taken, Abdelhady must show that she has been “injured in [her] business or property.” 18 U.S.C.
§ 1964(c). Abdelhady alleges the “deprivation of workers’ compensation benefits.” Opp’n GW
MTD at 30. Defendants argue that RICO claims are unavailable for an alleged deprivation of
workers’ compensation benefits. They are correct.
Abdelhady fails to meaningfully respond to Defendants claim that she did not suffer an
injury to property under RICO. See id. at 30 (citing no authority and describing Defendants’
claim as “immaterial and no more than a strawman argument”). So the Court treats this
argument as conceded, dooming her RICO claim. See Wannall v. Honeywell, Inc., 775 F.3d 425,
428 (D.C. Cir. 2014) (noting courts may treat a claim as conceded “if a party files an opposition
to a motion and therein addresses only some of the movant’s arguments”).
In any event, the Court finds Jackson v. Sedgwick Claims Managements Services, Inc.,
731 F.3d 556 (6th Cir. 2013) (en banc), persuasive. There, the court held that “racketeering
activity leading to a loss or diminution of benefits the plaintiff expects to receive under a
workers’ compensation scheme does not constitute an injury to ‘business or property’ under
RICO.” Id. at 568. Thus, as Abdelhady has not alleged a pattern of racketeering activity or an
actionable injury to property under RICO, the Court will dismiss Count II for failure to state a
claim.
B.
In Count III, Abdelhady brings a claim of negligent infliction of emotional distress. To
recover here, she must show that “(1) the defendant has a relationship with plaintiff, or has
undertaken an obligation to the plaintiff, of a nature that necessarily implicates the plaintiff’s
emotional well-being, (2) there is an especially likely risk that the defendant’s negligence would
9
cause serious emotional distress to the plaintiff, and (3) negligent actions or omissions of the
defendant in breach of that obligation have, in fact, caused serious emotional distress to the
plaintiff.” 6 Hedgepeth v. Whitman Walker Clinic, 22 A.3d 789, 810–11 (D.C. 2011) (en banc).
Abdelhady claims that a special relationship exists because GW “undertook an obligation to
[her] . . . to act in compliance with both its own and the [WCA’s] policies and procedures.”
Opp’n GW MTD at 31. She also claims that GW’s status as a landowner creates a special
relationship. See id. at 31–32. Neither claim has merit.
Abdelhady’s employment and work-related injury did not give rise to a special
relationship. The D.C. Court of Appeals teaches that “most cases claiming negligent infliction of
emotional distress have arisen—as we think will continue to arise—in the context of doctor-
patient relationships.” Hedgepeth, 22 A.3d at 813. This is so because in the doctor-patient
context “the emotional well-being of others is at the core of, or is necessarily implicated by, the
undertaking.” Id. On the other hand, “many other relationships, even if they involve fiduciary
obligations, generally will not come within the rule, because neither the purpose of the
relationship nor the fiduciary’s undertaking is to care for the plaintiff’s well-being; rather the
object of the engagement is to obtain a financial, commercial or legal objective.” Id.Abdelhady has failed to allege that she and Defendants were engaged in “a relationship or
undertaking . . . that necessarily implicates [her] emotional well-being.” Id. at 815. The special
relationship that Abdelhady describes is merely an employment relationship. And it is well-
established that “merely alleging an employer-employee relationship forecloses any special
6
Abdelhady does not argue that she can recover under the “‘zone of physical danger rule,’ which
permits recovery for mental distress if the defendant’s actions caused the plaintiff to be in danger
of physical injury and if, as a result, the plaintiff feared for his own safety.” Hedgepeth, 22 A.3d
at 797 (cleaned up); Opp’n GW MTD at 19–20.
10
relationship liability.” Robinson, 335 F. Supp. 3d at 31 (cleaned up); see also, e.g., Islar v.
Whole Foods Mkt. Grp., Inc., 217 F. Supp. 3d 261, 268 (D.D.C. 2016). Nor is there any reason
to think that it is “especially likely that serious emotional distress will result from” negligence in
the administration of her workers’ compensation claim. Hedgepeth, 22 A.3d at 813.
Finally, GW’s status as a landowner does not create a special relationship with its
invitees because “neither the purpose of the relationship nor [GW’s] undertaking is to care for
plaintiff’s well-being.” Id. Were it otherwise, a business owner would be in a special
relationship with every customer, a result rejected by the D.C. Court of Appeals in Hedgepeth.
Thus, Abdelhady fails to state a claim against Defendants for negligent infliction of emotional
distress.
C.
Abdelhady’s fraud claims (Counts IV and V) also fail. Defendants argue that
Abdelhady’s claims for fraud and fraudulent misrepresentation are insufficient under Rule 9(b),
which requires that “[i]n alleging fraud or mistake, a party must state with particularity the
circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b).
“Courts have sometimes characterized a plaintiff’s burden as providing the who, what,
when, and where with respect to the circumstances of the fraud.” United States ex rel. Bid Solve,
Inc. v. CWS Mktg. Grp., Inc., 567 F. Supp. 3d 59, 66 (D.D.C. 2021) (cleaned up). The purpose
of this heightened standard is to “discourage the initiation of suits brought solely for their
nuisance value, and safeguard potential defendants from frivolous accusations of moral
turpitude,” as well as “guarantee all defendants sufficient information to allow for preparation of
a response.” United States ex rel. Heath v. AT&T, Inc., 791 F.3d 112, 123 (D.C. Cir. 2015)
(cleaned up).
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Defendants argue that Abdelhady has not plead with particularity how she was influenced
by, or relied on, Defendants’ alleged misrepresentations. For instance, she alleges that she
“assumed” that her losses “would be covered by workers’ compensation,” but she does not
identify the time, date, or content of any specific representation. Compl. ¶ 86. And she similarly
alleges that GW misrepresented that “it was validly self-insured for workers’ compensation” but
fails to identify the time, place, or content of any such communication. Compl. ¶ 92. In her
opposition, Abdelhady does not engage any of Defendants’ arguments about her fraud claims.
She merely asserts that “[t]he alleged facts of this case make clear as to what the claims for fraud
were, when they were made, how they were made, and to whom they were made.” Opp’n GW
MTD at 32.
Abdelhady has conceded her claims of fraud and fraudulent misrepresentation. She
declined to materially address Defendants’ Rule 9 arguments. See Wannall, 775 F.3d at 428; see
also Schneider v. Kissinger, 412 F.3d 190, 200 (D.C. Cir. 2005) (“It is not enough to merely
mention a possible argument in the most skeletal way, leaving the court to do counsel’s work,
create the ossature for the argument, and put flesh on its bones. . . . A litigant has an obligation to
spell out its arguments squarely and distinctly, or else forever hold its peace.” (cleaned up)).
Abdelhady’s Complaint sprawls over 68 pages and contains more than 350 numbered
paragraphs. Because Abdelhady chose to leave Defendants’ persuasive arguments unaddressed,
the Court will dismiss Counts IV and V as conceded.
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D.
Consider next Count VIII, Abdelhady’s claim for tortious inducement of breach of
fiduciary duty. 7 She alleges that Defendants “made materially false and misleading
representations of fact and law in eight medical records subpoenas to induce medical providers to
disclose those medical records in violation of applicable law and [her] interests in privacy.”
Compl. ¶ 64. Defendants argue that Abdelhady fails to state a claim for two reasons. See GW
MTD at 21–23. First, they argue that she has not alleged that a medical provider actually
breached a duty to her. Second, they claim that she has not alleged that the issuance of
subpoenas to her medical providers caused damage. Defendants are correct, and the Court will
dismiss Count VIII.
In the District of Columbia, “a third party may be liable for another’s alleged breaches of
fiduciary duty if the third party can be shown to have induced this conduct.” Pietrangelo v.
Wilmer Cutler Pickering Hale & Dorr, LLP, 68 A.3d 697, 711 (D.C. 2013) (cleaned up). “A
predicate to any liability based on a theory of an inducement of a breach of a fiduciary duty is the
breach of fiduciary duty by the principal.” Id. The Court agrees with Defendants that
Abdelhady has failed to allege facts suggesting that her medical providers breached any fiduciary
duty.
Abdelhady claims that four of her providers released privileged medical information in
response to subpoenas issued by the ALJ presiding over her compensation claim. Compl.
¶¶ 174–75. And she claims that the subpoenas were issued in violation of the of Health
Insurance Portability and Accountability Act (HIPAA) and D.C. law. Id. ¶ 176. But critically,
7
Abdelhady has withdrawn Counts VI and VII, which alleged negligence per se and gross
negligence against Defendants. See Opp’n GW MTD at 32–33.
13
Abdelhady “has not cast blame upon her medical providers because they were forced to produce
the records under false pretenses.” Opp’n GW MTD at 34. By acknowledging that her providers
released her records in response to facially valid subpoenas, she has not alleged that her
providers failed to “scrupulously honor the trust and confidence reposed in them because of that
special relationship.” Vassiliades v. Garfinckel’s, Brooks Bros., 492 A.2d 580, 591 (D.C. 1985).
After all, “the mere fact that a third person has gained unauthorized access to hospital records
does not by itself establish that the provider was at fault or that it failed to exercise the utmost
caution and prudence.” Doe v. Medlantic Health Care Grp., Inc., 814 A.2d 939, 951 (D.C.
2003) (cleaned up). Thus, she has not alleged a breach of her fiduciary duty and fails to state a
claim for relief.
Abdelhady’s claim also fails because she does not plausibly allege damages caused by
release of her privileged medical information. “Breach of fiduciary duty is not actionable unless
injury accrues to the beneficiary or the fiduciary profits thereby.” Beckman v. Farmer, 579 A.2d
618, 651 (D.C. 1990) (cleaned up); see also Day v. Avery, 578 F.2d 1018, 1029 (D.C. Cir. 1976)
(“since neither injury to appellant nor profit to any appellee can be shown to flow from any
nondisclosure complained of, appellant’s allegation of breach of a fiduciary duty by
nondisclosure must also fail”). Abdelhady has not plead facts sufficient for the Court to infer
that the alleged release of her medical records caused any more than “only nominal damages or
speculative harm.” Hillbroom v. PricewaterhouseCoopers LLP, 17 A.3d 566, 573 (D.C. 2011).
So even if she had plausibly alleged breach, her claim would not be actionable. Thus, the Court
will dismiss Count VIII for failure to state a claim.
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E.
Abdelhady also brings a common law claim for abuse of process (Count IX) related to
Defendants’ discovery of her medical records during the investigation of her workers’
compensation claim. Abdelhady’s allegations fall short.
To prevail on her claim for abuse of process, Abdelhady must show that “the process has
been used to accomplish some end which is without the regular purview of the process, or which
compels the party against whom it is used to do some collateral thing which he could not legally
and regularly be required to do.” Morowitz v. Marvel, 423 A.2d 196, 198 (D.C. 1980) (cleaned
up). “The usual case of abuse of process is one of some form of extortion, using the process to
put pressure upon the other to compel him to pay a different debt or to take some other action or
refrain from it.” Scott v. District of Columbia, 101 F.3d 748, 755–56 (D.C. Cir. 1996) (quoting
Restatement (Second) of Torts § 682 cmt. B (1977)). With these principles in mind, it should
come as no surprise that Defendants’ discovery practices do not justify a claim for abuse of
process.
The WCA provides discovery mechanisms that allow parties to assess the scope of the
opposing party’s claims. See D.C. Code § 32-1525 (providing that parties may conduct pre-
hearing discovery “including but not limited to the use of interrogatories and depositions
. . . [that] will be helpful in determining the rights of the parties). Abdelhady seeks to hold
Defendants liable for its use of these mechanisms. See Compl. ¶ 364. The abuse of process she
describes is Defendants obtaining subpoenas for her medical providers and law firm. Id. ¶ 365.
This does not state a claim for abuse of process. Obtaining subpoenas for medical
records is not the “achievement of some end not contemplated in the regular prosecution of” a
workers’ compensation claim. Morowitz, 423 A.2d at 198. Rather, “one who invokes the legal
15
process to obtain such relief as it offers commits no abuse of process.” Harrison v. Howard
Univ., 846 F. Supp. 1, 3 (D.D.C. 1993). And allegations “that a person acts spitefully,
maliciously, or with an ulterior motive in instituting a legal proceeding is insufficient to establish
abuse of process.” Scott, 101 F.3d at 755. Thus, Defendants’ use of the WCA’s discovery
mechanisms does not plausibly allege an abuse of process.
The gravamen of this claim is that Defendants’ discovery practices violated HIPAA. See
Opp’n GW MTD at 36 (“While the discovery process does allow for a party to seek one’s
medical records, the rules and HIPAA require certain steps to be taken in order to protect
Plaintiff’s rights. Defendant knew of these rules and laws, failed to abide by them, and
misrepresented to the court and health care providers that they had complied with them.”). The
problem for Abdelhady is that HIPAA does not provide a private right of action. See Hudes v.
Aetna Life Ins. Co., 806 F. Supp. 2d 180, 195–96 (D.D.C. 2011), aff’d, 493 Fed. Appx. 107 (D.C.
Cir. 2012). Her “sole remedy for an alleged HIPAA violation is to lodge a written complaint
with the Secretary of Health and Human Services, through the Office for Civil Rights, who has
the discretion to investigate the complaint and impose sanctions, both civil and criminal.” Orr v.
Carrington, No. 18-cv-1986, 2019 WL 176958, at *3 (D. Conn. Jan 11, 2019). Thus, the Court
will dismiss Count IX for failure to state a claim.
F.
Abdelhady’s last claim, Count X, alleges that Defendants violated 42 U.S.C. § 1983while administering her workers’ compensation claim. Although she does not indicate which of
her civil rights Defendants violated, she suggests that she was denied “an impartial, rulebound
‘contested case’ before . . . [Employment Services].” Compl. ¶ 369. Abdelhady complains that
Defendants obtained “favorable ‘discovery’ rulings” by giving “something of value” to the ALJ.
16
See id. ¶ 371. Defendants respond that they are not liable under § 1983 because they did not act
under color of state law. Defendants are correct.
To state a § 1983 claim, Abdelhady “must allege both (1) that [s]he was deprived of a
right secured by the Constitution or laws of the United States, and (2) that the defendant acted
under color of the law of a state, territory or the District of Columbia.” Hoai v. Vo, 935 F.2d
308, 312 (D.C. Cir. 1991). Private parties “may be deemed to have acted under color of law in
two circumstances: when they conspire with state officials, and when they willfully engage in
joint activity with a state or its agents.” Id. But “mere recourse to state or local court procedures
does not by itself constitute ‘joint activity’ with the state sufficient to subject a private party to
liability under section 1983.” Id. Abdelhady suggests that Defendants conspired with the ALJ
overseeing her compensation case to obtain favorable discovery rulings, but her allegations
cannot state a claim.
“To prove a § 1983 conspiracy, a plaintiff must show: (1) an agreement between two or
more state actors or between a state actor and a private entity; (2) to act in concert to inflict an
unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages.”
Kenley v. District of Columbia, 83 F. Supp. 3d 20, 30 (D.D.C. 2015) (cleaned up). But
conclusory allegations of a conspiracy do not plausibly allege § 1983 liability. Abdelhady “must
supply ‘specific circumstantial evidence that each member of the alleged conspiracy shared the
same conspiratorial objective,’ and this evidence must ‘reasonably lead to the inference that the
defendants positively or tacitly came to a mutual understanding to try to accomplish a common
and unlawful plan.’” Austin v. District of Columbia, No. 05-cv-02219, 2007 WL 1404444, at
*11 (D.D.C. May 11, 2007) (quoting Hinkle v. City of Clarksburg, 81 F.3d 416, 421 (4th Cir.
1996)). So “[t]he mere repetition of a conclusory statement that a conspiracy exists and that all
17
the alleged events occurred as a result of a conspiracy are insufficient as a matter of law.”
Lemon v. Kramer, 270 F. Supp. 3d 125, 142 (D.D.C. 2017).
Abdelhady’s conspiracy allegations cannot survive dismissal. She claims that
Defendants colluded with the ALJ presiding over her compensation claim so Defendants would
obtain favorable discovery rulings. See Compl. ¶ 371. Abdelhady has not plead facts suggesting
the existence of an agreement between Defendants and the ALJ. She alleges that “Defendants
. . . acted in concert with the presiding ALJ . . . to deprive [her] of rights.” Id. But this
conclusory allegation lacks factual support and is not well-pleaded. Iqbal, 556 U.S. at 678.
Taking all inferences in her favor, Abdelhady does not plausibly allege that Defendants
and the ALJ “shared the same conspiratorial objective”—or even allege what that objective was.
Hinkle, 81 F.3d at 421. Indeed, Abdelhady seems to suggest that the ALJ may have been an
unknowing participant in Defendants’ alleged plan. See Opp’n GW MTD at 44 (“Plaintiff has
asserted that counsel for Defendant GW engaged with a state official for the purposes of acting
under the color of law for the purposes of § 1983. . . . While the ALJ may not have been aware
of such conduct at the time counsel made such considerations . . .”). Because Abdelhady has not
put forth “enough factual matter (taken as true) to suggest that an agreement was made” between
Defendants and the ALJ presiding over her compensation claim, the Court will dismiss Count X
for failure to state a claim. Twombly, 550 U.S. at 556.
IV.
Finally, consider Count I, Abdelhady’s negligence claim. Defendants assert that the
WCA provides the exclusive remedy for Abdelhady’s injury, precluding her from bringing this
claim in this Court. Abdelhady responds that there is a dispute whether her injury is
compensable under the WCA at all. Defendants are correct that there is no genuine dispute that
18
the WCA applies. Thus, the Court holds that the WCA bars her negligence claim. 8
The WCA applies 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 . . . while in the District
of Columbia[.]” D.C. Code § 32-1503(a)(1). For covered injuries, the WCA “is unambiguous in
its directive” that the statute provides the exclusive remedy against employers and their insurers.
Doe v. United States, 797 F. Supp. 2d 78, 82 (D.D.C. 2011). Section 32-1504(b) directs that
“[t]he compensation to which an employee is entitled under this chapter shall constitute the
employee’s exclusive remedy against the employer . . . or . . . insurer.” More, § 32-1504(a)
provides that “[t]he liability of an employer [under the WCA] shall be exclusive and in place of
all liability of such employer to the employee . . . on account [of an alleged workplace injury].”
“[T]he law in this jurisdiction is clear that the WCA is the exclusive remedy for work-
related injuries, with the result that common law tort claims arising from such injuries . . . are
barred in civil actions.” Lockhart v. Coastal Int’l Sec., Inc., 905 F. Supp. 2d 105, 117 (D.D.C.
2012); see also, e.g., Doe, 797 F. Supp. 2d at 82–84 (dismissing claims because WCA provided
exclusive remedy for plaintiff’s injury).
A.
So “[i]f the exclusivity provision is deemed applicable in her case, [Abdelhady’s] only
remedy would be workers’ compensation.” Tekle v. Foot Traffic, Inc., 699 A.2d 410, 412 (D.C.
1997). That is the situation here. After Abdelhady was injured while leaving a GW Law faculty
luncheon, she applied for workers’ compensation under the WCA. And after electing to receive
8
Because the Court finds that Abdelhady’s other counts fail to state a claim, the Court does not
decide whether the WCA would also preclude those claims.
19
WCA benefits, she successfully collected workers’ compensation payments from GW. Thus,
there is no genuine dispute that the WCA applies to Abdelhady’s injury.
Start with her allegations. To begin, she states that “[a]t all times relevant to this action,
[she] was employed part-time by [GW].” Compl. ¶ 3. And her operative Complaint is littered
with allegations that she suffered an injury compensable under the WCA. See id. ¶ 86 (“Because
Ms. Abdelhady was an employee of GWU on May 15, 2019, . . . any claims for medical
treatment . . . would be covered by workers’ compensation insurance”); id. ¶ 236 (GW was
“required by law” and by “Abdelhady’s terms of employment with GWU” to “furnish workers’
compensation”); id. ¶ 92 (“GWU did not . . . contact Ms. Abdelhady regarding her rights as
required by the [WCA] that was presumed . . . to be applicable”); id. ¶ 197 (“GWU took . . .
steps . . . to avoid Ms. Abdelhady’s claim under the WC[A]”).
And if there was any doubt, she affirmatively applied for workers’ compensation
benefits shortly after she was injured, claiming benefits for a “[f]all and collision in stairwell of
GW law school.” ECF No. 32-1 at 1. In her Application for Formal Hearing, she maintained
that she was an “[e]mployee” who “sustained multiple injuries at [GWU],” and that GWU
“failed to timely commence compensation.” ECF No. 32-3 at 2. And there is no indication in
the record that Abdelhady ever contested before Employment Services that her injuries arose out
of her employment. So the only implication of Abdelhady’s resort to the workers’ compensation
system is that she suffered an employment-related injury.
Now, Abdelhady asks this Court to ignore her election (and receipt) of workers’
compensation benefits and find that the WCA does not apply after all. She argues that it is
inapplicable here because she was not acting within the scope of her employment at the time of
the injury. Opp’n to GW MSJ at 18, ECF No. 26-1; Opp’n to GW MTD at 14–16, ECF No. 25-
20
1. The Court disagrees. Her successful pursuit of workers’ compensation benefits forecloses
this argument.
The D.C. Court of Appeals has explained that “once a workmen’s compensation act has
become applicable either through compulsion or election, it affords the exclusive remedy for the
injury by the employee.” Tekle, 699 A.2d at 412 (quoting 6 Larson’s Compensation Law,
§ 65.11 (1997 ed.) (emphasis added)); see also Georgetown Univ. v. D.C. Dep’t of Emp’t Servs.,
830 A.2d 865, 868 n.1 (D.C. 2003) (same). In other words, “an employee is barred from
bringing a common law tort action against his employer for injuries which have been . . .
compensated under the Act.” Garrett v. Wash. Air Compressor Co., Inc., 466 A.2d 462, 463
(D.C. 1983) (emphasis added). 9 Abdelhady affirmatively applied for benefits under the WCA,
and she then received and accepted workers’ compensation payments from GW. See Compl.
¶¶ 123, 145. Given her election of WCA benefits, the statute “affords the exclusive remedy for
the injury” she sustained. Tekle, 699 A.2d at 412 (cleaned up).
Abdelhady responds that her election of benefits is not binding because “an election of a
remedy which proves to be nonexistent is no election at all. Election . . . is a choice between two
valid but inconsistent remedies; it is not the mistaken pursuit of a misconceived right when only
one right in fact existed.” Opp’n GW MTD at 16 (quoting 6 Larson’s Workers’ Compensation
Law § 102.031 (1999 ed.)). But Abdelhady cannot have it both ways. The WCA benefits
Abdelhady applied for did not “prove[] to be nonexistent” in any sense. Id. Rather, she
successfully collected workers’ compensation payments from GW through January 2020. See
ECF No. 32-8 at 1–4; see also Compl. ¶ 123. And far from proving to Employment Services that
9
Garrett interpreted the WCA’s predecessor, the Longshoremen’s and Harbor Workers’
Compensation Act, 33 U.S.C. §§ 901 et seq., which “is similar to [the WCA] in all relevant
aspects.” Clark v. D.C. Dep’t of Emp’t Servs., 743 A.2d 722, 729 n.5 (D.C. 2000) (cleaned up).
21
the WCA offered no remedy, Abdelhady voluntarily withdrew her claim after accepting WCA
benefits. More, Professor Larson makes clear that “the most reliable” trigger of a workers’
compensation act exclusivity provision “is the actual acceptance of compensation benefits.” 6
Larson’s Workers’ Compensation Law § 100.012 (1999 ed.). Abdelhady’s successful election of
benefits leaves no dispute that her injury is subject to the WCA.
Even if Abdelhady had not successfully elected to receive workers’ compensation, the
Court would still find that the WCA applies to her injury. Abdelhady argues that the WCA is
inapplicable because her injury was not work related. The Court finds that there is no genuine
dispute on this record that her injury, which occurred at GW Law following a faculty event, falls
within the WCA’s scope.
Abdelhady’s “injury must both arise out of and occur within the course of [her]
employment” to be covered by the WCA. Koslon v. D.C. Dep’t of Emp’t Servs., 699 A.2d 357,
359 (D.C. 1997) (citation omitted). “Although ‘arising out’ of employment and ‘arising in the
course of’ employment are distinct concepts, the two are not totally independent; frequently
proof of one will incidentally tend to establish the other.” Lee v. D.C. Dep’t of Emp’t Servs., 275
A.3d 307, 312–13 (D.C. 2022) (cleaned up).
Consider first the “arise out of” requirement. This “refers to the origin or cause of the
injury.” Bentt v. D.C. Dep’t of Emp’t Servs., 979 A.2d 1226, 1232 (D.C. 2009) (cleaned up).
This “liberal standard” is expansive and “obviates any requirement . . . of a causal relationship
between the nature of the employment and the risk of injury.” Georgetown Univ., 830 A.2d at
872. And importantly, “an employee need not be engaged in activity of benefit to the employer
at the time of the injury.” Id.22
D.C. courts apply the positional-risk test, which categorizes a risk in one of three ways:
(1) “risks distinctly associated with the employment,” (2) “risks personal to the claimant,” and
(3) “‘neutral’ risks—i.e., risks having no particular employment or personal character.” Bentt,
979 A.2d at 1232 (cleaned up). Injuries flowing from employment-related risks are “universally
compensable” while those arising out of neutral risks are compensable when the injury “would
not have happened but for the fact that conditions and obligations of the employment placed
claimant in a position where he was injured.” Id. On the other hand, injuries arising from
personal risks are “universally noncompensable.” Id.Abdelhady argues that her risk of falling was neutral so that the WCA applies only if the
conditions and obligations of her employment were the but for cause of injury. Opp’n GW MTD
at 14–16. Assuming she is right, the Court still concludes that her injury is covered by the WCA
because her teaching obligations were the but for cause of her fall. See Gaines v. D.C. Dep’t of
Emp’t Servs., 210 A.3d 767, 772–73 (D.C. 2019) (assuming without deciding that workplace
escalator posed neutral risk of falling); Lee, 275 A.3d at 311–13 (assuming without deciding that
curb posed neutral risk of falling).
Abdelhady contends that “in no sense did [her] conditions of acting as a part-time
professor obligate her presence at a luncheon on campus.” Opp’n GW MTD at 15. The Court
accepts Abdelhady’s undisputed assertion that her contractual arrangement with GW did not
formally obligate her to attend the adjunct appreciation luncheon that preceded her fall. Opp’n
GW MSJ at 11. But the question is not whether Abdelhady had to be at the luncheon. Rather,
the inquiry is whether her injury would have happened “but for” her teaching obligations. Bentt,
979 A.2d at 1232. And Abdelhady fell on GW’s campus because of her employment
obligations: but for her teaching, she would not have been invited to the faculty appreciation
23
luncheon and exposed to the risks of attendance. See also Gaines, 210 A.3d at 773 (“injuries that
occur at the workplace as a result of a neutral risk arise out of the employment”).
Consider next the “in the course of” requirement, which focuses on “the time, place,[]
and circumstances under which the injury occurred.” Niles v. D.C. Dep’t of Emp’t Servs., 217
A.3d 1098, 1103 (D.C. 2019). “An injury occurs in the course of employment when it takes
place within the period of employment, at a place where the employee may reasonably be
expected to be, and while the employee is reasonably fulfilling duties of her employment or
doing something reasonably incidental thereto.” Id. (cleaned up). As an adjunct professor,
Abdelhady “may reasonably be expected to be” at a faculty appreciation luncheon, and a faculty
luncheon “is reasonably incidental” to her employment obligations. Id. (cleaned up).
Now, Abdelhady makes the remarkable claim that—despite applying for, receiving, and
accepting workers’ compensation benefits from GW—she was not employed at all by GW when
she was injured. This cannot be reconciled with her Complaint. See, e.g., Compl. ¶ 3 (“[a]t all
times relevant to this action, [she] was employed part-time by [GW]”); Compl. ¶ 86 (“Because
. . . Abdelhady was an employee of GWU on May 15, 2019 . . .”). Undeterred, Abdelhady
claims in her opposition that what she really meant was that she “has been employed part-time in
different periods in which she was actively teaching, and not continuously.” Opp’n GW MSJ at
3. She also produced an affidavit in which she now asserts that “her employment status with . . .
GWU is ‘terminated’” outside of an academic semester. Abdelhady SMJ Aff. ¶ 12. Defendants
counter that this representation is inadmissible under the “sham affidavit” rule. Reply to Opp’n
GW MSJ at 7–10, ECF No. 32. 10 The Court agrees.
10
Abedelhady has moved to file sur-replies to GW’s motion to dismiss and GW’s motion for
summary judgment. See ECF Nos. 46 (MTD), 48 (MSJ). Surreplies “are generally disfavored”
and the decision “as to whether to grant or deny leave is entrusted to the sound discretion of the”
24
The sham affidavit rule “precludes a party from creating an issue of material fact by
contradicting prior sworn testimony unless the shifting party can offer persuasive reasons for
believing the supposed correction is more accurate than the prior testimony.” Galvin v. Eli Lilly
Co., 488 F.3d 1026, 1030 (D.C. Cir. 2007) (cleaned up). Disputes of material facts should be
between parties, not between different versions of one party’s own claims. But if the challenged
affidavit “does not contradict but instead clarifies the prior sworn statement, then it is usually
considered admissible.” Id.According to Defendants, Abdelhady’s claim that she was not a GW employee directly
contradicts her earlier sworn statements to Employment Services while she pursued workers’
compensation benefits. GW submitted an affidavit that Abdelhady produced in support of her
motion to disqualify the ALJ presiding over her worker’s compensation claim. First Affidavit of
Hdeel Abdelhady (First Abdelhady Aff.), ECF No. 32-13. In that affidavit she states: “I am
employed part-time . . . at [GW] and have so been employed continuously from approximately
August 2004.” Id. ¶ 6. In other words, as in her operative Complaint, Abdelhady
unambiguously represented that she was a GW employee at the time of her injury. The Court
finds that this directly contradicts the affidavit she prepared to oppose summary judgment in
which she claims that, “[o]utside of an [academic semester], I am not and have not been an
employee of GWU.” Abdelhady SMJ Aff. ¶ 12.
Thus, Abdelhady’s prior assertion that she was a GW employee when injured “will
receive controlling weight unless [she] can offer persuasive reasons for believing the supposed
Court. Banner Health v. Sebelius, 905 F. Supp. 2d 174, 187 (D.D.C. 2012). The Court will deny
the motions because Abdelhady has not shown that GW’s “repl[ies] in fact raise[] arguments or
issues for the first time” nor that her proposed filings “would be helpful to the resolution of the
pending motion[s]” whatsoever. Id.25
correction.” Pyramid Sec. Ltd. v. IB Resol., Inc., 924 F.2d 1114, 1123 (D.C. Cir. 1991). And
although Abdelhady may explain her repudiation “by offering newly discovered evidence,” the
evidence on which she relies cannot justify her contradictory testimony. Id.Abdelhady produced GW employee records to support her claim that she was not a GW
employee on May 15, 2019. ECF Nos. 29 at 8–11 (sealed), 26-5 at 8–11 (unsealed). But these
records indicate that her personnel status was “active” on the date of her injury. See ECF No. 29
at 8–9. The Court fails to see how this undermines Abdelhady’s earlier statement to
Employment Services that GW employed her when she fell. To the contrary, these records
demonstrate that Abdelhady’s employment status was “active” throughout May 2019. In any
event, it is hard to see how either her own employment documents or status could be “newly
discovered” for her. Pyramid, 924 F.2d at 1123.
The remaining evidence that Abdelhady relies on to contest her status as a GW employee
does not explain her radically-changed sworn testimony. Abdelhady produced a payroll record
that she claims “indicat[es] that . . . [she] was not employed by GWU after April 30, 2019.” ECF
No. 26-5 at 29. Abdelhady fails to advance a good faith argument. To be sure, the payroll
record does not show for sure whether GW paid Abdelhady after April 30, 2019 (the last entry).
See id. But the Complaint specifically alleges that this payroll record is “false” because it
“omitted GWU’s salary payment to . . . Abdelhady of May 31, 2019.” Compl. ¶ 192. So
Abdelhady’s income history does not provide a “persuasive reason[]” for her incompatible
statements about her employment status. Pyramid, 924 F.2d at 1123. It is not “newly discovered
evidence” that could explain her convenient change of heart before this Court. Id. Rather, taken
with the allegations in her Complaint, the payroll record confirms that GW employed Abdelhady
at the time of the accident.
26
In applying the sham affidavit rule, the D.C. Circuit has stressed that “parties’
opportunism should not readily imperil summary judgment.” Id. at 1124. This Court agrees, and
it will not reward Abdelhady’s opportunism here. She has not undermined her sworn testimony
to Employment Services with anything more than a self-serving affidavit prepared to oppose
summary judgment. Abdelhady does not raise a material issue about her employment status
when she fell. Thus, because her injury is an “accidental injury . . . arising out of and in the
course of employment,” the WCA applies. D.C. Code § 32-1501(12).
Even if the Court were to consider the portions of Abdelhady’s affidavit asserting that she
was not a GW employee at the time of injury, the analysis would not change. The Court finds
that Abdelhady’s evidence “is not significantly probative” nor sufficient to create a genuine
dispute over her employment status. See Anderson, 477 U.S. at 250. This Court will not
sanction her attempt to rewrite her employment history after she proceeded through the workers’
compensation process, collected benefits under the WCA, and repeatedly represented under
penalty of perjury that she was an employee.
B.
Abdelhady brings other challenges to the WCA’s applicability to her injury. None are
persuasive. She first claims that GW “has yet to provide information to establish that it properly
obtained self-insured status.” Opp’n GW MSJ at 18. This argument is patently frivolous.
Consider first the affidavit of Jefferson Smith, GW’s Assistant Director of Insurance and
Contracts Risk Management. 11 Affidavit of Jefferson Smith (Smith Aff.), ECF No. 18-2. Smith
11
Abdelhady has filed a separate motion to strike Smith’s affidavit. See ECF No. 28. She later
moved for leave to file a supplemental memo and exhibits in support of her motion. See ECF
No. 53. Her main objection is that Smith’s affidavit is inadmissible for lack of personal
knowledge and for its reliance on uncertified documents. See ECF No. 28 at 2. Having
evaluated the motion, the opposition, and Abdelhady’s supplemental memo and exhibits, the
27
asserted that (1) GW has been certified as a self-insured employer by Employment Services
continuously since 1989, (2) GW posted the required Indemnity Bond with the District, and (3)
GW possessed a valid Certificate of Self-Insured Status when Abdelhady was injured. Id. ¶¶ 4,
7–8. But the Court need not take Smith’s word for it. GW submitted a letter from Employment
Services indicating that it had “furnished satisfactory proof of its financial ability to meet any
and all liabilities for workers’ compensation indemnity and medical benefits” and was “approved
to continue its status as a self-insured employer” through the time that Abdelhady was injured.
Letter from Lisa Baxter, Assoc. Dir., Off. of Workers’ Comp., to Jefferson Smith (June 21,
2018), ECF No. 18-3.
Still more, GW submitted a Continuation Certificate from its insurance company
demonstrating that the required $800,000 Indemnity Bond had been posted and was in effect
when Abdelhady was injured. See Continuation Certificate, ECF No. 18-4. GW also submitted
a copy of its insurance policy. See Insurance Policy, ECF No. 18-6. And GW provided a copy
of the Certificate of Self-Insured Status issued by Employment Services for the period
encompassing Abdelhady’s injury. See Certificate of Self-Insured Status, ECF No. 18-5. GW
Court finds that Abdelhady has not shouldered the “heavy burden” necessary to justify striking
Smith’s affidavit. Canady v. Erby Elektromedizin GmbH, 384 F. Supp. 2d 176, 180 (D.D.C.
2005); see also Barnes v. District of Columbia, 289 F.R.D. 1, 26 (D.D.C. 2012) (motions to
strike are “strongly disfavored”). Smith explicitly states that he has personal knowledge of all
matters addressed in his affidavit, “satisfying the low bar set forth in Rule 56’s personal
knowledge requirement.” Wye Oak Tech., Inc. v. Republic of Iraq, No. 10-cv-01182, 2018 WL
5983385, at *8 (D.D.C. Nov. 14, 2018); Smith Aff. ¶ 1. More, “a nonmovant is not required to
produce evidence in a form that would be admissible at trial,” and the Court finds that the
contents of Smith’s affidavit are “capable of being converted into admissible evidence.” Gleklen
v. Democratic Cong. Campaign Comm., Inc., 199 F.3d 1365, 1369 (D.C. Cir. 2000). Thus,
Abdelhady’s motion to strike Smith’s affidavit will be denied, and her motion for leave to file a
supplemental memo and exhibits will be denied as moot.
28
has clearly shown—through affidavit, correspondence from the D.C. Government, and
certification from the District—that GW was a lawful self-insured employer under the WCA.
Despite the extensive documentary evidence showing that GW was validly self-insured,
Abdelhady insists that “there is a clear dispute over whether [GW] properly reported payroll and
employment figures to both its insurance carrier and [Employment Services] in order to be
validly self-insured.” Opp’n GW MSJ at 21. The problem for Abdelhady is that she has not
produced any evidence suggesting that GW fraudulently obtained insurance coverage.
It is not enough for her to “plead . . . inaccuracies in the record keeping and reporting.”
Id. After all, “a mere unsubstantiated allegation . . . creates no genuine issue of fact and will not
withstand summary judgment.” Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993) (cleaned up).
To “accept[] such conclusory allegations as true . . . would defeat the central purpose of the
summary judgment device, which is to weed out those cases insufficiently meritorious to warrant
the expense of a jury trial.” Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). Thus,
Abdelhady’s unadorned speculation about the validity of GW’s insurance policy does not raise a
triable issue on GW’s self-insured status or the WCA’s effect.
Abdelhady also argues that the WCA has no effect here because GW has failed to show
that “it does not have an indemnitor-indemnitee relationship that trumps the exclusive remedy
provision.” Opp’n GW MTD at 17. Abdelhady relies on Holt v. Walsh Group, which explained
that “express indemnification language in [a] subcontract” can “trump the WCA’s exclusivity
provision.” 316 F. Supp. 3d 274, 279 (D.D.C. 2018). Holt is inapt. That case reaffirmed the
proposition that a third-party tortfeasor may seek indemnity from an employer for an employee’s
negligence action despite the WCA’s exclusivity provision. See id. (“This express
indemnification agreement, if freely entered . . . must be given effect and operates under [D.C.]
29
law to bar the WCA’s exclusivity provision.”). Holt does not suggest that an employee may
invoke a third-party’s indemnity agreement to avoid the WCA’s exclusivity provision.
Similarly, Abdelhady claims that “[i]f Aramark was not an agent of GWU and was
instead an independent contractor, the [WCA] would have no effect at all in this matter.” Opp’n
GW MTD at 19. (GW contracted with Aramark to provide facilities services. Compl. ¶ 7–9.)
This is incorrect. She relies on Henderson v. Charles E. Smith Management, Inc., 567 A.2d 59,
61 (D.C. 1989), and Beegle v. Restaurant Management, 679 A.2d 480, 484 (D.C. 1996), to
conclude that GW “is not afforded the protections of the [WCA] for the negligence of its
independent contractor.” Opp’n GW MTD at 20. But Henderson and Beegle merely hold that
the WCA may permit an employee to sue her employer’s independent contractor for negligence.
Neither suggests that an employer’s liability changes upon hiring an independent contractor. The
question of Aramark’s liability as an alleged independent contractor is not before the Court, and
the extent of that liability is unrelated to the WCA’s application to Defendants.
Abdelhady also argues that GW is equitably estopped from asserting that the WCA
provides her exclusive remedy. See Opp’n GW MTD at 17–18. She relies on GW’s initial
representation to Employment Services that she “was not acting within the scope of her
employment at the time of the incident.” Id. at 18. Abdelhady misapprehends the doctrine.
“Equitable estoppel applies to preclude a party from contradicting testimony or pleadings
successfully maintained in a prior judicial proceeding against the identical adverse party, where
the adverse party acted in reliance upon the opponent’s prior position and now faces injury if a
court were to permit the opponent to change positions.” Dennis v. Jackson, 258 A.3d 860, 870
(D.C. 2021) (emphasis added). That is, estoppel requires “a prior judicial acceptance of the
factual assertion made by the party who now advances an inconsistent contention.”
30
Konstantinidis v. Chen, 626 F.2d 933, 936 n.6 (D.C. Cir. 1980) (emphasis added). The evidence
shows that GW withdrew its assertion that Abdelhady’s accident did not arise out of and in the
course of employment and that GW informed her directly that it was withdrawing this defense.
See ECF No. 32-7 at 1–2. So GW is not equitably estopped from asserting that the WCA
applies.
* * *
With the applicability of the WCA resolved, the Court turns to Abdelhady’s negligence
claim. This claim falls squarely within the WCA’s ambit. The WCA provides the exclusive
remedy for any workplace injury that falls within its scope, see D.C. Code § 32-1504(b), and
“[t]he only injuries that fall outside the scope of the WCA are injuries specifically intended by
the employer to be inflicted on the particular employee who is injured.” Vazant v. WMATA, 557
F. Supp. 2d 113, 117 (D.D.C. 2008) (cleaned up). So Abdelhady’s negligence action is barred
by the WCA. See, e.g., Lockhart, 905 F. Supp. 2d at 117 (“the law in this jurisdiction is clear
that the WCA is the exclusive remedy for work-related injuries, with the result that common law
. . . claims for negligence . . . are barred in civil actions); Doe, 797 F. Supp. 2d at 83. Thus, the
Court will grant Defendants summary judgment on Count I. 12
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Because the Court considers matters outside the pleadings, the Court exercises its discretion to
convert PMA’s motion to dismiss into a motion for summary judgment under Rule 56. See, e.g.,
Ctr. for Auto Safety v. Nat’l Highway Traffic Safety Admin., 452 F.3d 798, 805 (D.C. Cir. 2006)
(court may treat a motion to dismiss as one for summary judgment when “both parties had a
reasonable opportunity to present all material made pertinent to such a motion by Rule 56” and
“none of the[] materials raise any issue of material fact”). Abdelhady had ample opportunity to
present material and develop a record here, including through her earlier workers’ compensation
proceedings.
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V.
For these reasons, the Court will grant Defendants summary judgment on Count I and
dismiss Counts II, III, IV, V, VIII, IX, and X without prejudice. The Court will deny
Defendants’ motions to dismiss insofar as they request dismissal with prejudice. Dismissals with
prejudice under Rule 12(b)(6) are disfavored in this Circuit, and the “standard for dismissing a
complaint with prejudice is high.” Coon v. Wood, 68 F. Supp. 3d 77, 82 (D.D.C. 2014); see also,
e.g., Rudder v. Williams, 666 F.3d 790, 794–95 (D.C. Cir. 2012) (dismissal with prejudice is “the
exception, not the rule” and is “warranted only when the allegation of other facts consistent with
the challenged pleading could not possibly cure the deficiency”). That high standard is not met
here. A separate Order will issue.
2022.11.29
17:22:48 -05'00'
Dated: November 29, 2022 TREVOR N. McFADDEN, U.S.D.J.
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