Morris v. Carter Global Lee, Inc.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
TIMOTHY C. MORRIS,
Plaintiff,
v. Civil Action No. 12-01800 (CKK)
CARTER GLOBAL LEE, INC.,
Defendant.
MEMORANDUM OPINION
(November 5, 2013)
Plaintiff Timothy C. Morris (“Morris” or “Plaintiff”) brings this action pro se against
Defendant Carter Globle Lee, Inc. (“CGL” or “Defendant”) 1, asserting a variety of claims arising
out of the termination of Plaintiff’s employment with CGL. Currently before the Court is
Defendant’s [12] Rule 12(b)(6) Motion to Dismiss. Upon consideration of the pleadings 2, the
relevant legal authorities, and the record as a whole, the Court GRANTS-IN-PART AND
DENIES-IN-PART Defendant’s [12] Rule 12(b)(6) Motion to Dismiss. All of Plaintiff’s claims,
with the sole exception of his claim pursuant to 42 U.S.C. § 1981, are dismissed without
prejudice.
1
Defendant states that it has been incorrectly named by Plaintiff as “Carter Global Lee, Inc.”
2
Pl.’s Verified Amended Compl. for Violation of Civil and Human Rights, Intentional Infliction
of Emotional Distress, False Accusations Plaintiff, Fraud, and Wrongful Firing, ECF No. [10]
(“Am. Compl.”); Def.’s Rule 12(b)(6) Mot. to Dismiss, ECF No. [12] (“Def.’s MTD”); Def.’s
Mem. of P. & A. in Supp. of its Rule 12(b)(6) Mot. to Dismiss, ECF No. [13] (“Def.’s Mem.”);
Pl.’s Mem. of P. & A. in Opp’n to Def.’s Rule 12(b)(6) Mot. to Dismiss, ECF No. [18] (“Pl.’s
Opp’n”); Def.’s Mem of P. & A. in Reply to Pl.’s Opp’n to Def.’s Rule 12(b)(6) Mot. to
Dismiss, ECF No. [20] (“Def.’s Reply”).
1
I. BACKGROUND
A. Factual Background
The following facts are taken from the Plaintiff’s Amended Complaint and the materials
attached thereto and must be accepted as true for purposes of a motion to dismiss. See Atherton
v. D.C. Office of the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009). On or about February 23, 2009,
Plaintiff was employed by Defendant as a plumber at the District of Columbia Jail. Am. Compl.
¶¶ 2, 5. Plaintiff is a licensed master plumber in the District of Columbia, and was hired in this
capacity by Defendant CGL, which had a contract to provide plumbing services for the District
of Columbia Department of Corrections. Id. at ¶¶ 2, 3. However, on February 23, 2009,
Plaintiff’s employment with CGL was terminated. Id. at ¶ 9. According to Plaintiff, his
supervisor informed him that the Jail’s Warden had ordered CGL to fire him. Id. The
precipitating event for Plaintiff’s termination was his allegedly negligent action in shutting off
the valves controlling the Jail’s heating system. Id. at ¶¶ 8-9. Plaintiff claims that a supervisor
employed by Defendant confronted him on the morning of February 23, 2009 and accused him
of sabotaging the heating system. Id. at ¶ 14. Plaintiff contends that he did not commit any
misconduct, noting that in his final check of the heating system before termination he made sure
each floor of the Jail was receiving the proper heat. Id. at ¶ 5. He alleges that Defendant
terminated him without providing any proof of his wrongdoing. Id. at ¶ 14. He further states
that he was humiliated by the termination, which resulted in his being asked to return his keys
and ID badge and being escorted out of the building for his alleged misconduct. Id. at ¶ 6.
Plaintiff subsequently applied for unemployment compensation, which he was denied on
March 19, 2009 on the basis of the alleged misconduct that led to his termination. Id. at ¶ 11,
Notice of Benefit Determination. Plaintiff appealed this decision, and after Defendant failed to
2
participate in a hearing on May 30, 2009, the Unemployment Board awarded Plaintiff
unemployment compensation. Id., Affidavit of Timothy Morris ¶ 7.
On July 28, 2009, Plaintiff filed a Charge of Discrimination against Defendant with the
Equal Employment Opportunity Commission and the District of Columbia Office of Human
Rights alleging that in terminating him, Defendant had “discriminated against [him] because of
[his] race (Black American) and age (54), in violation of Title VII of the Civil Rights Act of
1964, as amended.” Id., Charge of Discrimination. On August 27, 2009, the EEOC sent
Plaintiff a Dismissal and Notice of Rights. Id., Dismissal and Notice of Rights. This document
informed Plaintiff that the EEOC was closing its file on his charges of discrimination because
“[b]ased on its investigation, the EEOC is unable to conclude that the information obtained
establishes violation of the statutes.” Id. The Dismissal and Notice of Rights further informed
Plaintiff of his right to file a lawsuit on his claims of discrimination under Title VII, noting that
“[y]our lawsuit must be filed WITHIN 90 DAYS of your receipt of this notice; or your right to
sue based on this charge will be lost.” Id.
B. Procedural History
Plaintiff initially filed suit against Defendant on May 29, 2012 in the Superior Court of
the District of Columbia alleging wrongful termination and violation of his civil rights. See
Notice of Removal, ECF No. [1]. On November 5, 2012, Defendant removed this matter to this
Court on the basis of federal question jurisdiction. Id. On the same day, Defendant filed its [3]
Rule 12(e) Motion for More Definite Statement, which the Court granted on the grounds that
Plaintiff’s Superior Court Complaint lacked any discussion of the legal basis for his claims. See
Order of Feb. 18, 2013, ECF No. [9]. Pursuant to this Court’s Order, on March 11, 2013,
Plaintiff filed his [10] Amended Complaint, which listed five purported claims against
3
Defendant: (1) Violation of Civil and Human Rights; (2) Intentional Infliction of Emotional
Distress; (3) False Accusations; (4) Fraud; (5) Wrongful Firing. Subsequently, Defendant filed
its [12] Rule 12(b)(6) Motion to Dismiss, contending that Plaintiff’s allegations fail to state a
claim upon which relief can be granted.
II. LEGAL STANDARD
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a
complaint on the grounds it “fail[s] to state a claim upon which relief can be granted.”
Fed.R.Civ.P. 12(b)(6). The Federal Rules of Civil Procedure require that a complaint 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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting
Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); accord Erickson v.
Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam). “[A] complaint
[does not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ ”
Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting
Twombly, 550 U.S. at 557). Rather, a complaint must contain sufficient factual allegations that,
if accepted as true, “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at
570. “A claim has facial plausibility 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, 556 U.S. at 678.
In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court must
construe the complaint in the light most favorable to the plaintiff and must accept as true all
reasonable factual inferences drawn from well-pleaded factual allegations. In re United Mine
4
Workers of Am. Employee Benefit Plans Litig., 854 F.Supp. 914, 915 (D.D.C.1994). Further, in
deciding a Rule 12(b)(6) motion, a court may consider “the facts alleged in the complaint,
documents attached as exhibits or incorporated by reference in the complaint,” or “documents
upon which the plaintiff's complaint necessarily relies even if the document is produced not by
the plaintiff in the complaint but by the defendant in a motion to dismiss.” Ward v. D.C. Dep’t of
Youth Rehab. Servs., 768 F.Supp.2d 117, 119 (D.D.C. 2011) (citations omitted).
A defendant may raise the affirmative defense of statute of limitations in a Rule 12(b)(6)
motion when the facts that give rise to the defense are clear from the face of the complaint. See
Smith–Haynie v. District of Columbia, 155 F.3d 575, 578 (D.C.Cir.1998). The court should grant
a motion to dismiss only if the complaint on its face is conclusively time-barred. Id.; Doe v.
Dep’t of Justice, 753 F.2d 1092, 1115 (D.C.Cir.1985). 3
III. DISCUSSION
Defendant argues that all of Plaintiff’s claims should be dismissed pursuant to Rule
12(b)(6). The Court agrees with Defendant as to all of Plaintiff’s claims, except for his claim
under 42 U.S.C. § 1981. The sufficiency of each of Plaintiff’s claims is addressed below.
A. Plaintiff’s Claim that Defendant Violated His Civil and Human Rights
Plaintiff alleges that CGL has violated his “civil and human rights under the 14th
Amendment of the U.S. Constitution and 42 U.S.C. §[§] 1881-1885 [sic]; 18 U.S.C. §[§] 241-
3
In his Opposition, Plaintiff argues that the Court should treat Defendant’s Rule 12(b)(6) motion
as a motion for summary judgment under Fed. R. Civ. P. 56. Pl.’s Opp’n at 3-4. While Fed. R.
Civ. P. 12(d) does state that “[i]f, on a motion under Rule 12(b)(6) . . . matters outside the
pleading are presented to and not excluded by the court, the motion must be treated as one for
summary judgment under Rule 56”, here, the Court has not considered materials outside the
pleadings, except to note that such materials are not properly considered on a motion to dismiss.
Accordingly, conversion of Defendant’s motion is not required. See McKinney v. Dole, 765 F.2d
1129, 1134 (D.C. Cir. 1985), abrogated on other grounds by Stevens v. Dep’t of Treasury, 500
U.S. 1, 11, 111 S.Ct. 1562, 114 L.Ed.2d 1 (1991) (conversion required under Rule 12(d) only
where “[d]istrict [c]ourt considered materials outside the pleadings in dismissing the case.”).
5
241, 28 U.S.C. § 1443, and Title VII of the Civil Rights Act of 1964.” Am. Compl. ¶ 14. For
the reasons stated below, with the exception of Plaintiff’s claim under 42 U.S.C. § 1981, none of
these contentions present a cognizable claim for relief.
1. Plaintiff’s Constitutional Claims and 42 U.S.C. § 1983Although Plaintiff invokes a bevy of statutes in support of his claim that Defendant
violated his “civil and human rights” under the Fourteenth Amendment, the factual basis for his
claim is his allegation that he was fired by Defendant based on unsubstantiated accusations
against which he was never given the opportunity to defend himself. Am. Compl. ¶ 14. By
summarily firing him, Plaintiff contends, CGL deprived him of his economic livelihood without
an opportunity to be heard in violation of the Due Process Clause. Id.Defendant contends that Plaintiff’s allegation that CGL “violated Plaintiff’s civil and
human rights” “is so vague and ambiguous that CGL cannot reasonably determine under which
legal theory, if any, Plaintiff is seeking a judgment against CGL.” Def.’s Mem. at 3. The Court
disagrees. Although Plaintiff does not clearly state that he brings his claim under the procedural
component of the Due Process Clause and instead names a slew of statutory provisions in
addition to the Fourteenth Amendment, the allegations in his complaint are sufficient to place
Defendant on notice of Plaintiff’s procedural due process claim. Plaintiff alleges that he was
deprived of his economic livelihood without the opportunity to defend himself against the false
accusations that led to his firing. Such action, Plaintiff contends, violates the Due Process
Clause of the Fourteenth Amendment.
Yet, although Plaintiff has made clear at least one legal basis for his claim of “violation
of civil and human rights”, the Court nevertheless concludes that this claim is not proper. Even
putting aside the question of whether CGL’s termination of the Defendant constitutes state action
6
subject to scrutiny under the Fourteenth Amendment, a question the Court does not address but
notes some skepticism regarding 4, Plaintiff’s claim alleging a violation of his procedural due
process rights is barred by the statute of limitations. Claims for damages for violations of
procedural due process rights are brought pursuant to 42 U.S.C. § 1983, which provides a cause
of action for remedying constitutional violations by state actors generally, including deprivations
of procedural due process rights. 5 See, e.g. Rendell-Baker v. Kohn, 457 U.S. 830, 834-35, 102
S.Ct. 2764, 73 L.Ed.2d 418 (1982) (plaintiff alleging that she had been discharged in violation of
her procedural due process rights under the Fourteenth Amendment brought suit under § 1983).
Here, Plaintiff’s claim for violation of his due process rights plainly falls outside the applicable
statute of limitations for § 1983 actions.
“Section 1983 sets no limitations period.” Earle v. District of Columbia, 707 F.3d 299,
304 (D.C. Cir. 2012). Rather, the appropriate statute of limitations for a § 1983 claim “is that
which the State provides for personal-injury torts.” Wallace v. Kato, 549 U.S. 384, 387, 127
S.Ct. 1091, 166 L.Ed.2d 973 (2007). “[W]here state law provides multiple statutes of limitations
for personal injury actions, courts considering § 1983 claims should borrow the general or
residual statute for personal injury actions.” Ownes v. Okure, 488 U.S. 235, 249-50, 109 S.Ct.
4
“Embedded in our Fourteenth Amendment jurisprudence is a dichotomy between state action,
which is subject to scrutiny under the Amendment’s Due Process Clause, and private conduct,
against which the Amendment affords no shield, no matter how unfair that conduct may be.”
National Collegiate Athletic Ass’n. v. Tarkanian, 488 U.S. 179, 191, 109 S.Ct. 454, 102 L.Ed.2d
469 (1988). In drawing the line between state and private action, the Supreme Court has
cautioned that “state action may be found if, [and] only if, there is such a close nexus between
the State and the challenged action that seemingly private behavior may be fairly treated as that
of the State itself.” Brentwood Academy v. Tenn. Secondary School Athletic Ass’n, 531 U.S.
288, 295, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001).
5
The Court notes that Plaintiff appears to have invoked 42 U.S.C. § 1983, through his reference
to 42 U.S.C. §[§] 1881-1885 [sic], as a separate basis for relief from his claims under the
Fourteenth Amendment. Yet because § 1983 provides the statutory cause of action through
which Plaintiff can seek to remedy the violation of his constitutional rights, the Court considers
Plaintiff’s claims under the Constitution and § 1983 together.
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573, 102 L.Ed.2d 594 (1989). Pursuant to this direction, the D.C. Circuit has applied the District
of Columbia’s three-year residual statute of limitations for tort claims to § 1983 claims. See
Earle, 707 F.3d at 305 (citing Singletary v. District of Columbia, 351 F.3d 519, 529 n.11 (D.C.
Cir. 2003).
However, while the statute of limitations for a § 1983 claim is a matter of state law, “the
accrual date of a § 1983 cause of action is a question of federal law that is not resolved by
reference to state law.” Wallace, 549 U.S. at 388 (emphasis in original). A § 1983 claim accrues
“when the plaintiff has ‘a complete and present cause of action,’ that is, ‘when the plaintiff can
file suit and obtain relief.’” Id. (quoting Bay Area Laundry & Dry Cleaning Pension Trust Fund
v. Ferbar Corp. of Cal., 522 U.S. 192, 201, 118 S.Ct. 542, 139 L.Ed.2d 553 (1997). See also
Munos v. Bd. of Trs. Of Univ. of Dist. Of Columbia, 427 Fed. Appx. 1, 4 (D.C. Cir. 2011) (per
curiam) (§ 1983 claim accrues when wrongful conduct occurs).
Accordingly, the statute of limitations on Plaintiff’s § 1983 claim alleging a violation of
his due process rights began to run when Plaintiff had “a complete and present cause of action”
and could “file suit and obtain relief.” Bay Area Laundry, 522 U.S. at 201 (citations omitted).
The “fundamental requirement of due process is the opportunity to be heard ‘at a meaningful
time and in a meaningful manner.’” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47
L.Ed.2d 18 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d
62 (1965)). The three basic elements of a procedural due process claim are (1) a deprivation, (2)
of life, liberty, or property, (3) without due process of law. See EDF Resource Capital, Inc. v.
U.S. Small Business Admin., 910 F.Supp.2d 280, 284 (D.D.C. 2010) (citing Propert v. District of
Columbia, 948 F.2d 1327, 1331 (D.C. Cir. 1991). Here, Plaintiff’s claims for a violation of his
procedural due process rights accrued at the time he was allegedly deprived of his employment
8
without due process of law – without notice of the reasons for his termination and an opportunity
to contest them. Accordingly, Plaintiff’s claim accrued on the date of his termination, February
23, 2009. Plaintiff did not bring suit in District of Columbia Superior Court on his claims until
May 29, 2012, more than three years after the date his claim accrued. Therefore, pursuant to the
three-year statute of limitations applicable to § 1983 claims in the District of Columbia, his claim
for violation of his procedural due process rights is time-barred.
In his Opposition, Plaintiff contends that his claim is not barred by the statute of
limitations because he was not aware of the reasons for his termination until “he was informed of
it at the hearing before the Unemployment Insurance Appeal Board on or about May 29, 2009.”
Pl.’s Opp’n at 7. He argues that the time for filing his action did not accrue “until the date he
became aware of the actual charges against him.” Id. This statement is both legally and
factually inaccurate. As an initial matter, Plaintiff’s claim that he only learned of the reasons for
his termination at the Unemployment Insurance Appeal Board meeting on or about May 29,
2009 appears nowhere in the Amended Complaint or any of the materials filed by the Defendant
in Superior Court. Rather, the Amended Complaint contradicts this statement, making clear that
Plaintiff knew of the reasons for his dismissal on the day of his termination. In his Amended
Complaint, Plaintiff alleges that, before firing Plaintiff, his supervisor attempted on three
occasions to get him to admit that he had turned off the heating system, and that he was “charged
with gross-misconduct and sabotage of the heating system . . . .” Am. Compl. at ¶ 10. See also
id. at ¶ 14 (“CGL confronted Morris on February 23, 2009 and accused him of sabotaging the
heating system.”). Moreover, even accepting Plaintiff’s allegations that he did not learn the true
reasons for his firing until May 29, 2009, these facts are legally irrelevant. The harm alleged by
a plaintiff in a procedural due process claim is the loss of life, liberty, or property without notice
9
and an opportunity to be heard. What matters is that Plaintiff was allegedly deprived of notice
and an opportunity to be heard at the time of his deprivation. Any claim that Plaintiff learned the
“true” reasons for his firing months after his termination is immaterial. His cause of action
became complete at the moment of his alleged deprivation without due process. Accordingly,
because the statute of limitations began to run on the date of Plaintiff’s termination, his
procedural due process claim is time-barred and must be dismissed pursuant to Rule 12(b)(6).
2. Plaintiff’s Claims Under 42 U.S.C. §§ 1981, 1982, 1984, and 1985
Plaintiff next attempts to find relief pursuant to various other provisions of Title 42 of the
U.S. Code. Although Plaintiff cites to 42 U.S.C. §§ 1881-1885, the Court presumes that he
intended to refer to 42 U.S.C. §§ 1981-1985, as the former sections concern the National Science
Foundation. With the exception of § 1981, Plaintiff has failed to state a claim for relief pursuant
to these provisions.
Pursuant to 42 U.S.C. § 1981, all persons “have the same right . . . to make and enforce
contracts . . . as is enjoyed by white citizens. ” This provision has been interpreted to forbid all
racial discrimination in the making of private and public contracts, including employment
contracts. See Saint Francis College v. Al-Khazraji, 481 U.S. 604, 609, 107 S.Ct. 2022, 95
L.Ed.2d 582 (1987). Accordingly, Defendant’s argument that Plaintiff’s § 1981 claim is barred
by the state action doctrine is misplaced. See Runyon v. McCrary, 427 U.S. 160, 173, 96 S.Ct.
2586, 49 L.Ed.2d 415 (1976) (concluding that § 1981 reaches private conduct). As amended by
the Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071, § 1981 “ensure[s] that
Americans may not be harassed, fired, or otherwise discriminated against in contracts because of
their race.” CBOCS West, Inc. v. Humphries, 553 U.S. 442, 450, 128 S.Ct. 1951, 170 L.Ed.2d
864 (2008) (quoting S.Rep. No. 101-315, p.6 (1990)). See 42 U.S.C. § 1981(b) (defining “make
10
and enforce contracts” to “includ[e] the making, performance, modification, and termination of
contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual
relationship.”).
A viable “claim brought under § 1981, therefore, must initially identify an impaired
contractual relationship under which the plaintiff has rights,” and whether “racial discrimination
blocks the creation of a contractual relationship [or] impairs an existing contractual relationship.”
Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 476, 126 S.Ct. 1246, 163 L.Ed.2d 1069(2006). To state a claim for racial discrimination under § 1981, a plaintiff “must allege that (1)
the plaintiff is a member of a racial minority; (2) the defendant intended to discriminate against
the plaintiff on the basis of race; and (3) the discrimination concerned an activity enumerated in
§ 1981.” Mazloum v. Dist. of Columbia Metro. Police Dep’t, 522 F.Supp.2d 24, 37 (D.D.C.2007)
(quotations omitted). As the Supreme Court has emphasized, § 1981 “can be violated only by
purposeful discrimination.” Gen. Bldg. Contractors Ass’n v. Pennsylvania, 458 U.S. 375, 391,
102 S.Ct. 3141, 73 L.Ed.2d 835 (1982). “In order to pursue a cause of action under § 1981,
plaintiff cannot merely invoke his race in the course of a claim’s narrative and automatically be
entitled to pursue relief. Rather, plaintiff must allege some facts that demonstrate that his race
was the reason for defendant’s action.” Bray v. RHT, Inc., 748 F.Supp. 3, 5 (D.D.C.1990)
(internal citation omitted); see also Alexander v. Wash. Gas Light Co., 481 F.Supp.2d 16, 31
(D.D.C.2006) (“Plaintiff, while stating . . . that he is African-American, has not pled any facts or
made any suggestion of racially discriminatory motive on the part of Defendants. As such,
Plaintiff has failed to state a claim pursuant to 42 U.S.C. § 1981.”).
Here, Plaintiff has just barely met this requirement. Although Plaintiff’s Amended
Complaint contains no mention of his race or racial discrimination in the termination of his
11
employment contract, in considering a motion to dismiss under Rule 12(b)(6), the Court is
permitted to look to “documents attached as exhibits or incorporated by reference in the
complaint . . . .” Ward, 768 F.Supp.2d at 119 (citations omitted). Here, Plaintiff has attached to
his Amended Complaint his Charge of Discrimination filed with the D.C. Office of Human
Rights and presented to the EEOC. This document states, “On February 23, 2009, I was
terminated for alleged gross misconduct. I believe I have been discriminated against because of
my race (Black American) and age (54), in violation of Title VII of the Civil Rights Act of 1964,
as amended.” Although Plaintiff only invokes Title VII, this statement, again attached to his
Amended Complaint, sets out all the allegations necessary for his claim under § 1981. He
alleges that he is a member of a racial minority who was discriminated against on the basis of his
race with respect to an action covered by § 1981 – the termination of his employment contract.
Accordingly, Plaintiff’s allegations are sufficient to survive Defendant’s motion to dismiss with
respect to his claim under 42 U.S.C. § 1981. “A court may not grant a motion to dismiss for
failure to state a claim ‘even if it strikes a savvy judge that . . . recovery is very remote and
unlikely.” Atherton, 567 F.3d at 681 (quoting Twombly, 550 U.S. at 556). “So long as the
pleadings suggest a ‘plausible’ scenario to ‘sho[w] that the pleader is entitled to relief,’ a court
may not dismiss.” Tooley v. Napolitano, 556 F.3d 836, 839 (D.C. Cir. 2009) (quoting Twombly,
550 U.S. at 557).
Defendant argues that Plaintiff’s claim under § 1981 should be dismissed pursuant to the
statute of limitations. See Def.’s Mem. at 5. In making this argument, Defendant fails to note
that some § 1981 claims will be subject to a three-year limitations period; others, a four-year
limitations period. This case happens to fall in the latter category. As this Court discussed at
length in Graves v. District of Columbia, 777 F.Supp.2d 109, 115-116 (D.D.C. 2011):
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[o]nce upon a time, federal courts faced with Section 1981 claims were directed to
“select the most appropriate or analogous state statute of limitations,” whatever
the nature of the claim, Goodman v. Lukens Steel Co., 482 U.S. 656, 660, 107
S.Ct. 2617, 96 L.Ed.2d 572 (1987), which in the case of the District of Columbia
was indeed a three-year statute of limitations, Carney v. Am. Univ., 151 F.3d
1090, 1096 (D.C.Cir.1998). But that landscape changed somewhat with the
enactment of the Civil Rights Act of 1991, Pub.L. No. 102–166, 105 Stat. 1071,
which added a new subsection to Section 1981—subsection (b)—expanding
Section 1981 to reach a universe of post-contract-formation conduct that was
previously non-actionable. Compare Patterson v. McLean Credit Union, 491 U.S.
164, 177, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989) (concluding that the pre-
amendment Section 1981 did not cover “postformation conduct . . . implicat[ing]
the performance of established contract obligations and the conditions of
continuing employment . . . .”), with 42 U.S.C. § 1981(b) (“[T]he term ‘make and
enforce contracts' includes the making, performance, modification, and
termination of contracts, and the enjoyment of all benefits, privileges, terms, and
conditions of the contractual relationship.”). Because the amendment to Section
1981 brought about by the Civil Rights Act of 1991 was an expansion and not a
clarification of existing law, Rivers v. Roadway Exp., Inc., 511 U.S. 298, 313, 114
S.Ct. 1510, 128 L.Ed.2d 274 (1994), some conduct will arise under the pre-
amended Section 1981—subsection (a)—and some conduct will arise under post-
amendment Section 1981—subsection (b). The distinction is critical in identifying
the applicable statute of limitations: if a claim arises under subsection (a), then the
district court must select the most appropriate or analogous state statute of
limitations; but if a claim arises under subsection (b), then the four-year “catch-
all” statute of limitations for any claim arising under a federal statute enacted after
December 1, 1990 is triggered. See 28 U.S.C. § 1658(a).
Here, Plaintiff’s claim relating to racial discrimination in the termination of his
employment contract involves the sort of post-contract-formation conduct that was not covered
by § 1981 until Congress enacted the Civil Rights Act of 1991. In other words, his claim arises
under subsection (b) and the four-year statute of limitations applies. Plaintiff commenced the
instant action on May 29, 2012, meaning that his claim under § 1981 must have accrued on or
after May 29, 2008 in order to be timely filed. Plaintiff’s § 1981 claim arises out of his
termination on February 23, 2009 and is accordingly timely filed.
The remaining provisions of Title 42 invoked by Plaintiff, however, provide no relief.
The next provision invoked by Plaintiff, 42 U.S.C. § 1982, is irrelevant to his claims, as it
13
provides that “[a]ll citizens of the United States shall have the same right, in every State and
Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and
convey real and personal property.” Plaintiff makes no allegation anywhere in his Amended
Complaint or in the attached documents that he has been deprived of his rights in real or personal
property on the basis of his race. Next, Plaintiff clearly has no possible claim under 42 U.S.C. §
1984 as this provision has been omitted from the U.S. Code.
Finally, Plaintiff does not allege a cognizable claim under 42 U.S.C. § 1985, which
prohibits conspiracies that interfere with civil rights. 6 As part of this provision, § 1985(3)
prohibits conspiracies to deprive any person of equal protection of the laws. “A plaintiff suing
under § 1985(3) must allege four elements: (1) a conspiracy; (2) for the purpose of depriving any
person or class of persons of the equal protection of the laws, or of privileges and immunities
under the law; (3) motivated by some class based, invidiously discriminatory animus []; (4)
whereby a person is either injured in his person or property, or is deprived of any right or
privilege of a citizen of the United States.” Graves v. United States, 961 F.Supp. 314, 320
(D.D.C. 1997) (citing Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S.Ct. 1790, 1798-99, 29
L.Ed.2d 338 (1971)). Yet Plaintiff’s Amended Complaint and the supporting materials contain
no allegations of a conspiracy to deprive him of his rights. In order for there to be a conspiracy,
there must be “an agreement to take part in an unlawful action . . . .” Hall v. Clinton, 285 F.3d
74, 83 (D.C. Cir. 2002). Here, Plaintiff’s pleadings contain nothing that would indicate
Defendant is liable under § 1985(3). In his Opposition, Plaintiff mentions a conspiracy to
terminate him in violation of his civil rights for the first time, blithely stating that “[t]he essential
6
Plaintiff does not specify which part of § 1985 he is suing under, but the Court presumes that it
is § 1985(3), as the other subsections, addressing conspiracies to prevent an officer from
performing his duties and conspiracies to obstruct justice, are clearly not applicable here.
14
elements for a conspiracy to terminate Morris [are] also present. Here, the act involved more
than one person who participated in the termination. Pl.’s Opp’n at 6. Yet the mere fact that
more than one person participated in the termination decision does not by itself indicate that
there was a racially-motivated agreement made to terminate Plaintiff in violation of his civil
rights, and indeed, Plaintiff has made no such allegation in his Amended Complaint or the
supporting documents. Accordingly, Plaintiff’s allegations are plainly insufficient to support his
claim under § 1985.
3. Plaintiff’s Title VII Claim
Plaintiff’s claim under Title VII of the Civil Rights Act is similarly subject to dismissal
pursuant to Rule 12(b)(6). Title VII provides that a plaintiff must bring suit within 90 days of
receipt of a dismissal of his or her complaint by the Equal Employment Opportunity
Commission. See 42 U.S.C. § 2000e-16(c) (“[w]ithin 90 days of receipt of notice of final action
taken by a department, agency . . . or by the Commission . . . an employee or applicant for
employment, if aggrieved by the final disposition of his complaint . . . may file a civil action. . .
.” The ninety-day time limit from the date of receipt “functions like a statute of limitations.”
Wiley v. Johnson, 436 F.Supp.2d 91, 96 (D.D.C. 2006). “When the date that a right-to-sue notice
was received is unknown or disputed, courts routinely presume that the notice was received
either three days or five days after it was mailed.” Mack v. WP Co., LLC, 923 F.Supp.2d 294,
299 (D.D.C. 2013).
Here, the Equal Employment Opportunity Commission’s “Dismissal and Notice of
Rights” concerning Plaintiff’s Claim of Discrimination was issued and mailed on August 27,
2009. The Dismissal and Notice of Rights stated that Plaintiff’s Title VII “lawsuit must be filed
WITHIN 90 DAYS of your receipt of this notice; or your right to sue based on this charge will
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be lost.” Yet Plaintiff did not file his suit alleging a violation of Title VII until almost three years
later on May 29, 2012. Accordingly, regardless of whether Plaintiff received this notice three or
five days after its mailing, his claim is clearly time-barred, as it falls well outside the ninety-day
window provided for suit. Furthermore, Plaintiff’s pro se status does not create an excuse for his
delay in filing suit. “The mere fact that a plaintiff is representing [him]self ‘does not render
[him] immune from the ninety-day requirement.’” Horsey v. Harris, No. 12-1457, 2013 WL
3649790, at *5 (D.D.C. July 16, 2013) (quoting Anderson v. Local 201 Reinforcing Rodmen, 886
F.Supp. 94, 97 (D.D.C. 1995). See also Smith v. Dalton, 971 F.Supp. 1, 2-3 (D.D.C. 1997)
(barring a pro se litigant who missed the ninety-day deadline by one day).
Plaintiff does not challenge the specific text of the Dismissal and Notice of Rights.
Indeed, he does not address this document. Rather, he argues that his Title VII claim is not time-
barred because he “did not become aware of the full reasons for his termination until he was
denied unemployment benefits for what amounted to misconduct.” Pl.’s Opp’n at 8. Yet this
argument is unavailing for a number of reasons. First, Plaintiff never explains what additional
information he learned when his unemployment benefits were denied. As discussed, supra,
Plaintiff was informed that Defendant had fired him for alleged misconduct at the time of his
termination. Furthermore, Plaintiff was denied unemployment benefits on March 19, 2009. Yet
Plaintiff did not file his charge of discrimination with the EEOC until July 28, 2009.
Accordingly, even if Plaintiff is correct that he did not become aware of the full reasons for his
termination until he was denied unemployment benefits, this event still occurred well before the
filing of his charge of discrimination with the EEOC, and even further before the EEOC’s
Dismissal and Notice of Rights. In light of these facts, Plaintiff provides no support for the
conclusion that the ninety-day time limit for suit in the EEOC’s Dismissal and Notice of Rights
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is somehow inapplicable here. Therefore, Plaintiff’s Title VII claim is also dismissed as time-
barred.
4. Plaintiff’s Remaining Claims under 18 U.S.C. §§ 241-242 and 28 U.S.C. § 1443Plaintiff attempts to assert a claim of criminal conspiracy against CGL pursuant to 18
U.S.C. §§ 241-242. As discussed, supra, Plaintiff fails to specify any factual or legal basis for
these allegations of conspiracy in his Amended Complaint. However, even if Plaintiff did
provide sufficient allegations, he is still not entitled to sue to enforce these federal criminal
provisions. See Johnson v. Fenty, No. 10-5105, 2010 WL 4340344, at *1 (D.C. Cir. Oct. 1,
2010) (per curiam) (“Appellant attempts to assert a conspiracy claim under 18 U.S.C. §§ 241-
242, but he has not shown that these criminal statutes provide a private cause of action.”); Sheehy
v. Brown, 335 Fed Appx. 102, 104 (2d Cir. 2009) (“To the extent that Appellants assert claims
based on the violation of federal criminal statutes, such as 18 U.S.C. §§ 241-242, these claims
are not cognizable, as federal criminal statutes do not provide private causes of action.”);
Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 511 (2d Cir. 1994) (18 U.S.C. § 242 is
a “criminal statute[] that do[es] not provide [a] private cause[] of action.”). See generally
Diamond v. Charles, 476 U.S. 54, 64-65, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986) (noting that
private citizens cannot compel enforcement of criminal law).
Finally, Plaintiff alleges that his human and civil rights were violated pursuant to 28
U.S.C. § 1443. However, this statute governs removal of an action to federal court and does not,
standing alone, provide a cause of action for which relief can be granted. Accordingly, any
claim Plaintiff purports to bring pursuant to this statute is similarly dismissed.
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B. Intentional Infliction of Emotional Distress
Plaintiff’s claim for intentional infliction of emotional distress is similarly dismissed
pursuant to Rule 12(b)(6). “To establish a prima facie case of intentional infliction of emotional
distress, a plaintiff must show (1) extreme and outrageous conduct on the part of the defendant
which (2) either intentionally or recklessly (3) causes the plaintiff severe emotional distress.”
Larijani v. Georgetown Univ., 791 A.2d 41, 44 (D.C. 2002). “There is no general duty of care to
avoid causing mental distress, and liability is not imposed for all conduct which causes mental
distress.” Duncan v. Children’s Nat. Medical Center, 702 A.2d 207, 211 (D.C. 1997). Rather, a
defendant’s conduct must be “so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in
a civilized community.” Drejza v. Vaccaro, 650 A.2d 1308, 1312 n. 10 (D.C. 1994) (quoting
Restatement (Second) of Torts § 46, cmt. h (1965)). Indeed, “a case of intentional infliction of
emotional distress is made out only if ‘the recitation of the facts to an average member of the
community would arouse his resentment against the actor, and lead him to exclaim
‘Outrageous!’” Homan v. Goyal, 711 A.2d 812, 818 (D.C. 1998) (quoting Restatement, § 46,
cmt. d). Moreover, “the defendants’ actions must proximately cause the plaintiff emotional upset
of so acute a nature that harmful physical consequences [are likely] . . . to result.” Sere v. Group
Hospitalization, Inc., 443 A.2d 33, 37 (D.C. 1982) (internal quotation marks omitted).
District of Columbia courts “have been exacting as to the proof required to sustain such
claims in an employment context.” Futrell v. Dep’t of Labor Fed. Credit Union, 816 A.2d 793,
808 (D.C. 2003) (internal quotation marks omitted). “[G]enerally, employer-employee conflicts
do not rise to the level of outrageous conduct.” Duncan, 702 A.2d at 211-12. For example, in
Crowley v. North Am. Telecomm. Ass’n., 691 A.2d 1169 (D.C. 1997), the plaintiff alleged that
18
his supervisor terminated him and then defamed him to his former co-workers, allegedly causing
him to suffer intentionally inflicted emotional distress. See id. at 1171 (“[Plaintiff] . . . alleged in
his complaint that . . . [his supervisor] told his employees and former co-workers that an empty
bullet casing had been found in the hallway which was probably left by [plaintiff] and that this
caused injury to his business and personal reputation.”). The District of Columbia Court of
Appeals affirmed the dismissal of the plaintiff’s complaint, stating that “[s]uch circumstances are
not the type for which liability may be imposed for this particular tort.” Similarly, in Kerrigan v.
Britches of Georgetowne, Inc., 705 A.2d 624, 628 (D.C. 1997), that court held that allegations
that an employer manufactured evidence to establish a claim of sexual harassment against an
employee, demoted him, and leaked the information to other employees did not ‘rise to the level
of outrageous conduct’ necessary to state a claim for intentional infliction of emotional distress.
“This conduct, even construed as true, was of the type attributable to ‘employer-employee
conflicts [that] do not, as a matter of law, rise to the level of outrageous conduct.” Id. (quoting
Howard v. Best, 484 A.2d 958, 986 (D.C. 1984)). See also Williams v. District of Columbia, 9
A.3d 484, 493-94 (D.C. 2010) (employee discharged for whistleblowing failed to state a claim
for intentional infliction of emotional distress based on allegations that former employer falsely
stated that plaintiff had been terminated for embezzlement).
Here, Plaintiff’s allegations plainly do not rise to the level of severe and outrageous
conduct. Plaintiff bases his claim for intentional infliction of emotional distress on his
allegations that Defendant falsely accused him of turning off the heating system at the District of
Columbia jail and then “deprived him of his dignity and humiliated Plaintiff by walking him off
the job site as if he had deliberately interfered with the health and welfare of the jail inmates.”
Am. Compl. ¶ 14. While the Court can understand the indignity and humiliation Plaintiff alleges
19
that he suffered in being discharged, it nevertheless concludes that Defendant’s alleged actions
do not constitute “conduct which exceeds all bounds of decency [or] acts which are regarded as
‘atrocious and utterly intolerable in a civilized community.” Waldon v. Covington, 415 A.2d
1070, 1076 (D.C. 1980) (citation and internal quotation marks omitted). Rather, they represent
the sort of employer-employee conflicts that the District of Columbia Court of Appeals has
repeatedly concluded do not state a claim for intentional infliction of emotional distress. As in
previous cases, “[e]ssentially, [Plaintiff] alleges only that he was subjected to contempt, scorn,
and other indignities in the workplace by his supervisor and an unwarranted evaluation and
discharge. While offensive and unfair, such conduct is not in itself of the type actionable on this
tort theory.” Crowley, 691 A.2d at 1172. See also Waldon, 415 A.2d at 1076 (Liability “does
not extend to mere insults, indignities [and] threats . . . .”).
C. Plaintiff’s Claim for False Accusations
Plaintiff alleges that “Defendant falsely accused Plaintiff of sabotaging the heating
system at the DC Jail and accused Plaintiff of repeated misconduct.” Am. Compl. ¶ 18.
Accordingly, he argues, “CGL is guilty of stating false accusations against Morris.” Id.However, there is no cause of action in the District of Columbia for false accusations. See
Hobley v. Wachovia Corp., 275 Fed. App’x. 16, 17 (D.C. Cir. 2008) (per curiam) (“There are,
however, no causes of action in the District of Columbia for ‘false accusation, false information,
false prosecution, and frame-up.’”).
Recognizing the lack of an applicable cause of action, in his Opposition, Plaintiff states
that there is a “related cause of action for ‘tortuous interference’ with employment contracts
which is applicable here.” Pl.’s Opp’n at 11. Yet, Plaintiff, in spite of his pro se status, is not
entitled to raise new claims for the first time in an opposition to a motion to dismiss. See
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Williams v. Spencer, 883 F.Supp.2d 165, 181 n. 8 (D.D.C. 2012) (“Where the amended
complaint does not make a claim, plaintiff cannot add a new claim through an opposition
brief.”); Mazloum v. District of Columbia, 442 F.Supp.2d 1, 12 n. 7 (D.D.C. 2006) (“the
amended complaint, as currently drafted, does not make such a claim, and plaintiff cannot further
amend his complaint through an opposition brief.”). Moreover, even ignoring this fact,
Plaintiff’s Opposition provides no legal theory or factual basis to support this claim, other than
simply mentioning “tortuous interference.” Furthermore, though the Court is left to guess at
what argument Plaintiff would make, presumably it involves interference with Plaintiff’s
employment contract by his employer. Under District of Columbia law, such claims are
generally not cognizable. See Morris v. Buvermo Properties, Inc., 510 F.Supp.2d 112, 120
(D.D.C. 2007) (“Generally speaking, an employer cannot be held liable for interfering with a
contract with its own employee.”); McManus v. MCI Communications Corp., 748 A.2d 949, 958
(D.C. 2000) (noting that it is “axiomatic that an employer cannot interfere with its own
contract”). Accordingly, the Court concludes that Plaintiff’s Claim for False Accusations is
dismissed pursuant to Rule 12(b)(6).
D. Fraud
Plaintiff next alleges fraud, contending in his Amended Complaint that “CGL sought to
intentionally damage Morris and to fire Plaintiff by accusing him of sabotaging the heating
system. Defendant without any proof stated that Morris’s supervisor found the heating valves
closed when Morris stated that he checked the system and found everything in worked [sic]
order. CGL’s actions are consistent with fraud.” Am. Compl. ¶ 20.
To succeed on a claim for fraud, the Plaintiff must establish: (1) that the defendant made
a false representation or willful omission of a material fact; (2) that the defendant had knowledge
21
of the misrepresentation or willful omission; (3) that the defendant intended to induce the
plaintiff to rely on the misrepresentation or willful omission; (4) that the plaintiff actually relied
on that misrepresentation or willful omission; and (5) that the plaintiff suffered damages as a
result of her reliance. Schiff v. Am. Ass'n of Retired Persons, 697 A.2d 1193, 1198 (D.C.1997).
“In alleging fraud or mistake, a party must state with particularity the circumstances constituting
fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be
alleged generally.” Fed. R. Civ. P. 9(b). Accordingly, a complaint must “state the time, place,
and content of the false misrepresentations, the fact misrepresented and what was retained or
given up as a consequence of the fraud.” Kowal v. MCI Communications Corp., 16 F.3d 1271,
1278 (quoting United States ex rel. Joseph v. Cannon, 642 F.2d 1373, 1385 (D.C. Cir. 1981)).
Plaintiffs must also “identify individuals allegedly involved in the fraud.” United States ex rel.
Williams v. Martin-Baker Aircraft Co., Ltd., 389 F.3d 1251, 1256 (D.C. Cir. 2004).
Here, Plaintiff’s brief allegations of fraud fail to satisfy this standard. Indeed, in the
Court’s view, Plaintiff is merely seeking to fit the facts of his termination based on allegedly
false accusations into the fraud cause of action. But termination on disputed grounds does not
constitute fraud, as shown by the poor fit between Plaintiff’s factual allegations and the elements
of the cause of action. Even assuming that Defendant misrepresented the material fact of
Plaintiff’s misconduct, Plaintiff has not alleged that Defendant sought to induce his reliance on
this fact or that Plaintiff actually relied on this fact to his detriment. Rather, Plaintiff, by his own
admission, never relied on this alleged misstatement, which he has disputed as false from the
very moment of his termination. See Am. Compl. ¶¶ 5, 8, 14. Accordingly, Plaintiff has failed
to allege a claim for fraud, and this claim is dismissed pursuant to Rule 12(b)(6).
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E. Wrongful Termination
Finally, Plaintiff contends that he was fired “without due process of law and without any
justifiable reason.” Am. Compl. ¶ 14. In the District of Columbia, at-will employment is
presumed, Nickens v. Labor Agency of Metro. Wash., 600 A.2d 813, 816 (D.C. 1991), and the
general rule is that at-will employees can be terminated from employment for any reason or no
reason at all, with or without cause or justification. Adams v. George W. Cochran & Co., 597
A.2d 28, 30 (D.C. 1991). The few narrow exceptions to this rule are grounded in considerations
of public policy, such as when the sole reason for discharge is the employee’s refusal to violate
the law, as expressed in statute or municipal regulation. Carl v. Children’s Hosp., 702 A.2d 159,
160. See also id. at 162 (Terry, J., concurring) (concluding that “the recognition of any such
exception must be firmly anchored either in the Constitution or in a statute or regulation which
clearly reflects the particular ‘public policy’ being relied on.”).
Here, Plaintiff has not alleged or provided any reason to suspect that his employment was
not-at will. Accordingly, even accepting all of Plaintiff’s allegations as true, there is no general
prohibition on CGL firing him without providing a reason. Furthermore, Plaintiff has made no
allegation that the reason for his discharge violates District of Columbia public policy as
expressed in constitutional, statutory, or regulatory law. Plaintiff alleges that he “was terminated
in [sic] allegations that he committed a criminal act and/or misconduct. Defendant was required
to prove those allegations in order to protect Plaintiff’s civil rights.” Pl.’s Opp’n at 13. Merely
firing an employee based on alleged misconduct or violation of criminal law does not raise the
sort of public policy concerns identified by the District of Columbia Court of Appeals in its
decisions setting out narrow exceptions to the at-will doctrine. In defining the scope of these
exceptions, that court has cautioned future courts to “consider seriously only those arguments
23
that reflect a clear mandate of public policy, i.e., those that make a clear showing, based on some
identifiable policy that has been ‘officially declared’ in a statute or regulation, or in the
Constitution, that a new exception is needed. Furthermore, there must be a close fit between the
policy thus declared and the conduct at issue in the allegedly wrongful termination.” Carl, 702
A.2d at 164. Here, Plaintiff has made no such showing, and to the extent Plaintiff attempts to
argue for a public policy exception which would require giving him an opportunity to contest his
termination based on the Due Process Clause of the Fourteenth Amendment, the Court declines
to create such an extension. Creating this new public policy exception would render the at-will
doctrine a nullity, as all employers would be required to provide all terminated employees notice
and an opportunity to be heard in all cases. This would hardly be in keeping with the “narrow
exception” that the District of Columbia Court of Appeals has carved out to the at-will rule.
Accordingly, Plaintiff’s claim for wrongful discharge is dismissed.
Furthermore, even if Plaintiff could state a claim for wrongful firing, his claim would be
time-barred. Plaintiff’s claim is subject to the three-year statute of limitations reserved for
claims for “which a limitation is not otherwise specifically provided.” D.C. Code § 12-301(8).
Here, Plaintiff brought suit on May 29, 2012, more than three years after the date of his
termination – the point at which he was allegedly terminated without any justifiable reason. As
discussed, supra, Plaintiff’s argument that the statute of limitations did not begin to run until he
discovered the true reasons for his firing at his Unemployment Hearing, Pl.’s Opp’n at 12, is
unavailing. Plaintiff’s Amended Complaint clearly states that he was made aware of the reasons
for his firing at the time of his termination. See Am. Compl. ¶ 14 (“CGL confronted Morris on
February 23, 2009 and accused him of sabotaging the heating system.”).
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IV. CONCLUSION
For the foregoing reasons, the Court GRANTS-IN-PART AND DENIES-IN-PART
Defendant’s [12] Motion to Dismiss. All of Plaintiff’s claims, with the sole exception of his
claim pursuant to 42 U.S.C. §1981 are hereby dismissed without prejudice. An appropriate
Order accompanies this Memorandum Opinion.
Dated: November 5, 2013
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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