RICHARD W. ROBERTS, District Judge.
Plaintiffs Mica Saint-Jean, Guerline Bourciquot, and Marie Dorlus have brought claims against defendant District of Columbia ("D.C.") under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 207, et seq., the D.C. Whistleblower Protection Act ("WPA"), D.C.Code § 1-615.51, et seq., and local statutory and common law arising from an alleged scheme which required them to pay kickbacks to their supervisor in order to receive overtime assignments. D.C. has moved to dismiss those claims.
The plaintiffs allege the following facts, many of which are set forth in Saint-Jean v. D.C. ("Saint-Jean II"), Civil Action No. 08-1769(RWR), 844 F.Supp.2d 16, 18-20, 2012 WL 547814, at *1-*2 (D.D.C. Feb. 21, 2012). The plaintiffs, all Haitian immigrants, worked at a school bus terminal of the D.C. Public Schools Division of Transportation ("DOT"). They were denied the opportunity to work overtime hours unless they paid illegal kickbacks to their former supervisor, Michelle Smith, the Terminal Manager. (2d Am. Compl. ¶¶ 2, 13-15, 24, 192.) Saint-Jean and Dorlus each paid Smith between $75 and $150 per pay period to obtain overtime assignments.
A group of Haitian DOT employees discussed Smith's scheme with DOT's Transportation Administrator, David Gilmore, in October of 2006. As a result, Smith was suspended for six weeks. Smith resumed her scheme after she returned. (2d Am. Compl. ¶¶ 4, 38-42). In November or December of 2007, Saint-Jean and Dorlus reported Smith's illegal kickback scheme and retaliation to the Mayor's office, the Office of the Inspector General ("OIG"), the Office of the Attorney General ("OAG"), and the FBI. (Id. ¶ 6.) Bourciquot disclosed the scheme to DOT Assistant Manager Janice Waters in March of 2008.
The plaintiffs discussed some of Smith's discrimination against Haitians with Gilmore on July 17, 2008. (2d Am. Compl. ¶ 77.) The following day, Saint-Jean told Gilmore that Smith accepted bribes in exchange for paying employees for hours not worked, and that Smith let her boyfriend use DOT buses for personal purposes. (2d Am. Compl. ¶¶ 79, 82.) DOT Deputy Terminal Manager Michael Roberts suspended Bourciquot and Dorlus without pay on July 21, 2008, for five days, for an alleged failure to "call to report they would be late [to work] on July 18th" (id. ¶¶ 86-87), and directed a security guard to escort them off DOT property later that afternoon. (Id. ¶ 183.) On July 29, 2008, DOT notified Bourciquot and Dorlus of their "proposed termination[s]" for insubordination to an immediate supervisor. (Id. ¶¶ 97, 99.) Their effective date of termination was August 14, 2008. (2d Am. Compl. ¶ 100.) DOT placed Saint-Jean on a ten-day administrative leave for insubordination on September 10, 2008, with notice that she would be terminated effective September 24, 2008. (2d Am. Compl. ¶¶ 114-115.)
The Federal Rules of Civil Procedure provide for "extremely liberal" pleading standards. Vila v. Inter-Am. Inv., Corp., 570 F.3d 274, 291 (D.C.Cir.2009). Under Rule 8(a)(2), a complaint need only contain "`a short and plain statement of the claim'" giving "`the defendant fair notice of what the ... claim is and the grounds upon which it rests'" and "`showing that the pleader is entitled to relief.'" 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)). "[D]etailed factual allegations" are likewise unnecessary under Rule 12(b)(6), id., which authorizes dismissing a complaint for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). To survive a Rule 12(b)(6) motion, "`a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ivey v. Fenty, 789 F.Supp.2d 65, 67-68 (D.D.C. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)) (citation omitted). Facially plausible claims permit "the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949. "Th[is] plausibility standard ... asks for more than a sheer possibility that a defendant has acted unlawfully." Id.
In considering a Rule 12(b)(6) motion to dismiss, a court "assume[s] all the allegations in the complaint are true (even if doubtful in fact)" and "must give the plaintiff[s] the benefit of all reasonable inferences derived from the facts alleged." Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C.Cir. 2008) (internal quotation marks and citation omitted); accord Simba v. Fenty, 754 F.Supp.2d 19, 22 (D.D.C.2010). However, "`the court need not accept [unsupported] inferences[,] ... [nor must it] accept legal conclusions cast in the form of factual allegations.'" Vila, 570 F.3d at 291 (quoting Kowal v. MCI Communic'ns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994)). Any "labels and conclusions," "naked assertion[s]," and "unadorned, the-defendant-unlawfully-harmed-me accusation[s]," will not suffice to avoid dismissal. Iqbal, 129 S.Ct. at 1949; Mekuria v. Bank of Am., Civil Action No. 10-1325(JEB), 2011 WL 4430868, at *3 (D.D.C. Sept. 23, 2011).
"`The central aim of the [FLSA] was to achieve, in those industries within its scope, certain minimum labor standards.'" McMaster v. State of Minn., 30 F.3d 976, 980 (8th Cir.1994) (quoting Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 292, 80 S.Ct. 332, 4 L.Ed.2d 323 (1960)). It was enacted to support the "`minimum standard of living necessary for health, efficiency, and general well-being of workers[,]'" and "to prevent unfair competition resulting from the use of underpaid labor." Id. (quoting 29 U.S.C. § 202(a)) (citation omitted).
"The FLSA provides affected employees with a cause of action to recover for violation of its overtime provision," Figueroa v. D.C. Metro. Police Dep't, 633 F.3d 1129, 1132 (D.C.Cir.2011) (citing 29 U.S.C. § 216(b)), "which ordinarily requires employers
The plaintiffs counter that they were not paid "free and clear" for their overtime hours since they were compelled to pay Smith kickbacks, that DOT's FLSA violation was willful, and that their participation in the scheme does not bar relief. (Pls.' Mem. in Opp'n to Def.'s Mot. to Dismiss Pls.' Compl. ("Pls.' Opp'n") at 16-21.) They allege that while they worked for more than 40 hours per week, Smith, DOT's agent, reduced their wages by requiring them to pay kickbacks. (2d Am. Compl. ¶¶ 2, 29, 31, 156.) For example, Saint-Jean and Dorlus paid Smith as much as $150 per pay period in order to obtain overtime work. (Id. ¶¶ 2, 30, 32, 34-35.) The plaintiffs claim that DOT was aware of Smith's kickback scheme but repeatedly failed to take corrective action against her. (Id. ¶¶ 156-57.)
For actions against employers, the FLSA provides statute of limitations periods of two years for non-willful violations and three years for willful violations. Desmond v. PNGI Charles Town Gaming, L.L.C., 630 F.3d 351, 357 (4th Cir.2011) (citing 29 U.S.C. § 255(a). Plaintiffs bear the burden to make a "factual showing" of willfulness, Clarke v. JPMorgan Chase Bank, N.A., No. 08 Civ. 2400, 2010 WL 1379778, at *10 (S.D.N.Y. Mar. 26, 2010), which the Supreme Court has described as an employer's "either [knowing] or ... reckless disregard for the matter of whether its conduct was [statutorily] prohibited." McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133, 108 S.Ct. 1677, 100 L.Ed.2d 115 (1988)). "Reckless disregard... involves actual knowledge of a legal requirement, and deliberate disregard of the risk that one is in violation." Clarke, 2010 WL 1379778, at *10 (internal quotation marks and citation omitted). Neither mere negligence nor a merely unreasonable determination of the employer's obligations under the FLSA suffice to show willfulness. Id.
"[J]udicial experience and common sense[ ]" nudge the allegations of DOT's reckless disregard for FLSA's requirements "across the line from conceivable to plausible." Iqbal, 129 S.Ct. at 1950, 1951 (internal quotation marks and citations omitted). D.C. does not dispute that it knew of its legal obligation to pay overtime wages undiminished by extorted kickbacks. See Teoba v. Trugreen Landcare, LLC, 769 F.Supp.2d 175, 184 (W.D.N.Y. 2011) (stating that "FLSA's anti-kickback regulation holds that any money an employee `kicks back directly or indirectly to the employer or another person for the employer's benefit' must be excluded from
D.C. argues that DOT did not violate the FLSA since Smith acted outside the scope of her employment by orchestrating the kickback scheme. (Def.'s Mot. [Dkt. # 23] at 13-14; Def.'s Mot. [37-1] at 17.) The plaintiffs respond that Smith's malfeasance is attributable to D.C. (Pls.' Opp'n at 6-8.)
"Agency is the fiduciary relationship that arises when ... a `principal' manifests assent to ... an `agent['] that the agent shall act on the principal's behalf and subject to the principal's control, and the agent manifests assent or otherwise consents so to act." Restatement (Third) of Agency § 1.01 (2006).
Here, the plaintiffs sufficiently have pled facts reflecting that Smith's conduct was incidental to her legitimate responsibility to assign overtime hours and foreseeable as a direct outgrowth of that responsibility — certainly after Gilmore became aware of the scheme in October of 2006. Id. (See 2d Am. Compl. ¶¶ 17, 22, 24, 38.) The complaint articulates that Smith's "scheme was designed to extract money[ ]" rather than to benefit DOT. (Id. ¶ 37.) The process Smith followed for assigning overtime hours, corrupted as it was by kickback requirements, can fairly be said to have been undertaken nonetheless on DOT's behalf and to serve DOT.
D.C. argues that DOT paid the plaintiffs in full for their overtime work and should not be held responsible for the plaintiffs' "voluntary" decision to spend their paychecks on kickbacks. (Def.'s Mot. [Dkt. #23] at 10-11; Def.'s Mot. [Dkt. # 37-1] at 14, 16.) "Under the FLSA any money that the employee "`kicks back'" directly or indirectly to the employer or another person for the employer's benefit' must be excluded from calculation of the employee's actual wages." Yu G. Ke v. Saigon Grill, Inc., 595 F.Supp.2d 240, 257 (S.D.N.Y.2008) (citing 29 C.F.R. § 531.35). Wages must be "`paid finally and unconditionally or "free and clear"'" on payday, Cumbie v. Woody Woo, Inc., 596 F.3d 577, 581 (9th Cir.2010) (quoting 29 C.F.R. § 531.35), since the FLSA "prevents improper deductions [which] reduc[e] the wages of a worker below the minimum wage[.]" Arriaga v. Fla. Pacific Farms, L.L.C., 305 F.3d 1228, 1241 (11th Cir.2002). "[Allowing] employers to frustrate the policy of ... the FLSA through the use of kickbacks" is disfavored. Donovan v. Crisostomo, 689 F.2d 869, 876 (9th Cir.1982).
Plaintiffs claim facts here like those in Yu G. Ke, where "cash payments ... were demanded of plaintiffs for the benefit of the defendants, that is, to ensure that a sufficient amount of [overtime] work was
D.C. argues that equity bars relief under the FLSA since the plaintiffs paid illegal kickbacks and were complicit in Smith's scheme. (Def.'s Mot. [Dkt. # 23] at 12-14; Def's Mot. [Dkt. # 37-1] at 16-17.) The plaintiffs counter that their actions did "not run afoul of the FLSA." (Pls.' Opp'n at 20.)
"[C]ourts have discretion to deny equitable relief to a party who has not acted fairly and without fraud or deceit as to the controversy at issue." Armenian Genocide Museum and Memorial, Inc. v. Cafesjian Family Found., Inc., 691 F.Supp.2d 132, 159 (D.D.C.2010) (quotation marks and citation omitted). Thus, the equitable doctrine of unclean hands can apply "where there is misconduct by the plaintiff in the same transaction that is the subject of h[er] claim.'" Harrington v. Trotman, 983 A.2d 342, 348 (D.C.2009) (quoting Int'l Tours & Travel, Inc. v. Khalil, 491 A.2d 1149, 1155 (D.C.1985)).
D.C. bears the burden of showing that "unclean hands bars equitable relief[.]" Pedinol Pharmacal, Inc. v. Rising Pharm., Inc., 570 F.Supp.2d 498, 505 (E.D.N.Y.2008). "That burden is satisfied by a showing of `truly unconscionable and brazen behavior.'" Id. (citation omitted); see also Cochran v. Burdick, 89 F.2d 831, 834 (D.C.Cir.1937) (citing fraudulent or unconscionable behavior as conduct constituting unclean hands). In determining whether a plaintiff's own misbehavior operates to bar recovery, "equity does not demand that its suitors shall have led blameless lives[.]" Ellipso, Inc. v. Mann, Civil Action No. 05-1186(RCL), 2006 WL 1126814, at *2 (D.D.C. Apr. 27, 2006). "[T]he doctrine may be relaxed if defendant has been guilty of misconduct that is more unconscionable than that committed by plaintiff[,]" Duggal v. Krishna, 554 F.Supp. 1043, 1047 (D.D.C.1983) (internal quotation marks and citation omitted); see 11A Wright, Miller, Kane and Marcus, Federal Practice and Procedure § 2946 (2d ed. 2011), or if the party invoking the doctrine was "the principal actor in the perpetration of the fraud[.]" Cochran, 89 F.2d at 834. The plaintiffs were subordinate in power to Smith who plaintiffs allege was the principal actor in perpetrating the illegal scheme. Plaintiffs' capitulation to a superior's extortionate demand, if it is unconscionable, is far less so than the superior's making the demand. The plaintiffs' efforts reflect less "fraud or deceit" than they reflect an effort to obtain overtime assignments which they were rightfully entitled to seek.
D.C. argues that the plaintiffs have failed to plead a prima facie case for retaliation under the FLSA, in part because "only Bourciquot and Dorlus are alleged to have suffered adverse action." (Def.'s Mot. [Dkt. #37-1] at 19.) "The anti-retaliation provision of the FLSA
According to the plaintiffs, DOT was aware that they were disclosing the scheme both internally and to local and federal investigative authorities. (2d Am. Compl. ¶¶ 6, 8, 56, 77.) The plaintiffs allege that, soon thereafter, DOT took adverse employment action against them by "suspending their employment, reprimanding them, harassing them and ultimately terminating their employment" (id. ¶ 162). Drawing all reasonable inferences in the plaintiffs' favor, the close temporal proximity of the protected behavior and the alleged retaliation can suggest that "there was a causal relationship between the two." Cooke, 601 F.Supp.2d at 72, 79. No more is necessary to survive Rule 12(b)(6) dismissal.
The D.C. Circuit has not yet determined whether mere informal complaints can trigger protection from retaliation under the FLSA. Miller v. Health Servs. for Children Found., 630 F.Supp.2d 44, 49 (D.D.C.2009) (citing Cooke, 601 F.Supp.2d at 74-75 (collecting cases)). "[E]ven assuming that retaliation for making an informal complaint is cognizable under § 215(a)(3), an `employee must [still] step outside his or her role of representing the company and ... threaten to file [ ] an action adverse to the employer, actively assist other employees in asserting FLSA rights, or otherwise engage in activities that reasonably could be perceived as directed towards the assertion of rights protected by the FLSA.'" Id. at 50 (quoting Hicks v. Ass'n of Am. Med. Coll., 503 F.Supp.2d 48, 52-53 (D.D.C.2007)). The plaintiffs initiated meetings to disclose Smith's fraud to the Mayor's Office, the OIG, the OAG, and the FBI; they also took the initiative to file complaints with the EEOC. (2d Am. Compl. ¶¶ 6, 48-55.) Under these circumstances, they have amply pled that they "step[ped] outside [their] role[s]" as DOT representatives and "engaged in activities" reasonably perceived as directed toward the protection of their FLSA rights. Miller, 630 F.Supp.2d at 49. The FLSA retaliation claim will proceed.
The plaintiffs allegedly made multiple disclosures regarding Smith's scheme to local and federal authorities. (2d Am. Compl. ¶ 169.) In late 2007, they complained orally to the OAG, the OIG, the Mayor's Office and the FBI. (Id. ¶¶ 6, 48-49.) They complained internally to Gilmore and Waters in March and July of 2008, respectively. (Id. ¶¶ 4, 56, 77, 79, 82.) Finally, on September 17, 2008, all three plaintiffs filed written complaints with the EEOC. (Id. ¶¶ 105, 118.) They allege that these complaints constituted protected disclosures under the WPA and prompted DOT to take prohibited personnel actions against them, including suspending, reprimanding, and terminating them, and rescinding their offers of reinstatement. (Id. ¶¶ 170-171.) D.C. argues
The WPA's central "premise ... is that District employees can function as the `eyes and ears' of District taxpayers." Williams v. D.C., 9 A.3d 484, 490 (D.C. 2010) (citation omitted). Accordingly, the Act "encourage[s] [D.C.] employees to `report waste, fraud, abuse of authority, violations of law, or threats to public health or safety' by protecting such employees from the `retaliation or reprisal' they could otherwise face for bringing these government excesses to light." Hawkins v. Boone, 786 F.Supp.2d 328, 332 (D.D.C.2011) (quoting D.C.Code § 1-615.51). To plead a prima facie case under the WPA, "a plaintiff must allege that 1) she made a protected disclosure,
An employee making a protected disclosure must reveal agency errors so serious that reasonable people would not debate whether the agency erred. Mentzer v. Lanier, 677 F.Supp.2d 242, 250 (D.D.C.2010). When the plaintiffs filed this action, the WPA defined a protected disclosure as
D.C.Code § 1-615.52(a)(6) (2001) (emphasis added). "The ... inquiry ... [is] not whether the conduct was in fact ultimately found to be illegal or a gross abuse[.]" Williams v. Johnson, 701 F.Supp.2d 1, 14-15 (D.D.C.2010). Instead, an individual's reasonable belief turns on whether "`a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee [could] reasonably conclude that the actions of the government evidence [illegality, gross abuse, etc.].'" Id. (quoting Zirkle v. D.C., 830 A.2d 1250, 1259-60 (D.C.2003)) (alteration in original).
Prohibited personnel actions within the meaning of the WPA include
D.C.Code § 1-615.52(a)(5)(A).
The defendant argues that the plaintiffs made no disclosure at all because other Haitian bus drivers had revealed the scheme to Gilmore as early as October of 2006. (Def.'s Mot. [Dkt. #23] at 8; 2d Am. Compl. ¶¶ 4, 38.) The plaintiffs counter that they can state a claim "without pleading that they were the first to disclose Smith's conduct."
Other than certain complaints made to Gilmore, the plaintiffs' oral and written statements regarding Smith appear to meet the statutory definition of protected disclosures. See D.C.Code § 1-615.52(a)(6). The plaintiffs' statements to Gilmore about Smith's discriminatory treatment of Haitians and her kickback scheme do not warrant WPA protection since he already was aware of those fraudulent activities. (2d Am. Compl. ¶¶ 4, 7, 38.) See also Williams v. Johnson, 701 F.Supp.2d at 15. However, just as no pleading suggests that the Mayor's office or Waters knew of Smith's scheme before Saint-Jean and Dorlus disclosed it to them in November of 2007 and March of 2008, respectively (2d Am. Compl. ¶ 48; see also id. ¶ 56), Gilmore allegedly did not previously know that Smith accepted bribes in exchange for paychecks and allowed her boyfriend to use DOT buses for personal purposes. (Id. ¶ 82.) The plaintiffs likewise have not alleged that D.C. retaliated against them after they relayed already "public complaints about a perceived abuse" — circumstances which "may well merit reproach, but ... do[ ] not appear to be the particular evil at which the DC-WPA was aimed." Williams v. D.C., 9 A.3d at 490 n. 5.
The plaintiffs allege that D.C.'s prohibited personnel actions against them included "suspension, reprimands, recommended, threatened and actual terminations" (2d Am. Compl. ¶ 170.) D.C. argues that the plaintiffs' protected disclosures were not a "contributing factor" in causing the plaintiffs' suspensions without pay and terminations. (Def.'s Mot. [Dkt. #23] at 9-11.) The plaintiffs allege close temporal proximity between their protected disclosures and the defendant's prohibited personnel actions. (2d Am. Compl. ¶¶ 85-86, 170-71.)
The plaintiffs must "demonstrate as part of [their] prima facie case that the protected disclosure was a contributing factor to the allegedly retaliatory actions ... i.e., that Defendants would not have taken the allegedly retaliatory actions but for her protected disclosures." Williams v. Johnson, 701 F.Supp.2d at 17 (internal quotation marks and citation omitted). Under D.C. caselaw, close temporal proximity may suffice to establish causality. Johnson v. D.C., 935 A.2d 1113, 1120 (D.C.2007) (stating that "four months realistically cannot constitute temporal proximity in the ordinary sense of that phrase.") Here, the plaintiffs have alleged that they suffered adverse employment actions within days and weeks after reporting Smith's scheme. (2d Am. Compl. ¶¶ 86-87, 50, 183.) They have therefore pled a prima facie case under the WPA.
D.C. argues that the affirmative defense of unclean hands bars the plaintiffs' WPA claim given their complicity in Smith's scheme. (Def.'s Mot. [Dkt. # 23] at 8-10.) D.C. also argues that granting relief would undermine the policies underlying the WPA, which was "enacted to motivate employees to do their duties justly and efficiently." (Id. at 9 (quotation marks and citation omitted) (emphasis removed).) As is stated above, D.C. has not met its burden to show that the plaintiffs' conduct was truly "unconscionable" or "brazen." See Pedinol, 570 F.Supp.2d at 505; Cochran, 89 F.2d at 834. Allowing this claim to proceed would actually promote the policies underlying the WPA by testing the merits of the plaintiffs' whistleblowing efforts.
D.C. argues that the plaintiffs' quantum meruit claim
However, the second amended complaint repeatedly describes the scheme in which the plaintiffs participated as "illegal." (See, e.g., 2d Am. Compl. ¶¶ 2, 4-8, 37-38, 42-43, 55, 63, 157.) The D.C. Court of Appeals "has been insistent that quantum meruit recovery for performance in return for a promise unenforceable on public policy grounds is forbidden."
The defendant argues that the plaintiffs' defamation claim is foreclosed by the D.C. Comprehensive Merit Personnel Act
"`The CMPA was enacted to provide employees of the District of Columbia an impartial and comprehensive administrative scheme for resolving employee grievances.'" Bowers v. D.C., Civil Action No. 10-2056(ESH), ___ F.Supp.2d ___, ___, 2011 WL 2160945, at *7 (D.D.C. June 2, 2011) (quoting Holman v. Williams, 436 F.Supp.2d 68, 74 (D.D.C. 2006)). The Act "recognizes an employee's right to challenge an adverse employment decision either by using the grievance procedures that are contained in an employee's CBA negotiated by the union or by pursuing a remedy under the appeal process contained in the CMPA." Brown v. Watts, 993 A.2d 529, 533 (D.C.2010) (emphasis added). The employee must choose and pursue one of these two "methods at the outset of the appeal." Id. at 533-534. On the one hand, the CMPA appeal process "requires employees ... to appeal an adverse action to the Office of Employee Appeals ("OEA"), whose final decision is appealable to the Superior Court." Bowers, ___ F.Supp.2d at ___, 2011 WL 2160945, at *7 (citing Thompson v. D.C., 978 A.2d 1240, 1242-43 (D.C.2009)); see also Hoey v. D.C., 540 F.Supp.2d 218, 231 (D.D.C.2008) (dismissing defamation claims since the CMPA required the plaintiff "to [first] present them to OEA and obtain a Final Decision from that body before pursuing judicial relief"). On the other hand, the plaintiffs' CBA provides a four-step process for resolving grievances. (Def.'s Mot. [Dkt. #23], Ex. 1, "Agreement Between the Transportation Administrator for DOT and Dist. Council 20" ("the CBA") at 6-9.) These include a discussion between the employee and her immediate supervisor, the submission of a
The D.C. Circuit has not yet "resolv[ed] whether th[e] [CMPA] exhaustion requirement is better understood as jurisdictional or nonjurisdictional in federal court[.]" Johnson v. D.C., 552 F.3d 806, 811 n. 2 (D.C.Cir.2008). In Robinson v. D.C., 748 A.2d 409, 411 n. 4 (D.C.2000), a case involving defamation, emotional distress, and false light claims, the D.C. Court of Appeals stated that "[t]he [CMPA] is jurisdictional and provides the exclusive remedy for almost all [work-related] claims
Saint-Jean has neither pled nor argued that she exhausted her administrative remedies under either of the CMPA's two approved methods. See Brown, 993 A.2d at 533. Her defamation claim therefore is preempted by the CMPA, which is "the exclusive avenue by which aggrieved employees of the District of Columbia may pursue work-related complaints." Evans v. District of Columbia, 391 F.Supp.2d 160, 170 n. 5 (D.D.C.2005). Drawing all reasonable inferences in Bourciquot's and Dorlus's favor, however, they timely "file[d] a grievance in writing in accordance with the provision of the negotiated grievance procedure[,]" triggering the CBA method of CMPA exhaustion. Johnson v. D.C., 368 F.Supp.2d 30, 37 (D.D.C. 2005) (quoting D.C.Code § 1-616.52(f)). (See 2d Am. Compl. ¶¶ 100-104.) Yet after Dorlus and Bourciquot's "Stage 2 grievance hearing[s]" were cancelled on September 18 and 19, 2008, respectively, they did not proceed to the final three steps of the grievance procedure which culminate in arbitration. (Def.'s Mot. [Dkt. #23], CBA at 8-9.) Neither have they pled that they appealed any arbitration decision to the Public Employee Relations Board. Johnson, 368 F.Supp.2d at 37 (citing D.C.Code § 1-605.02(6) (authorizing PERB review of arbitration awards)). Since none of the plaintiffs has pled exhaustion of her administrative remedies as to this claim, it is subject to dismissal.
D.C. also argues that the plaintiffs' failure to provide notice to D.C. of their defamation claim — as to the suspension Roberts issued and the warnings Hastings-Carey
Bonaccorsy v. D.C., 685 F.Supp.2d 18, 23 (D.D.C.2010) (quoting D.C.Code § 12-309). "The notification requirement is strictly applied[ ] and ... `construed narrowly' against claimants" at this stage of litigation. Id. (quoting Snowder v. D.C., 949 A.2d 590, 600 (D.C.2008)). (Compare Pls.' Surreply at 14 (stating that the matter of notice is not properly before the court)). The plaintiffs neither assert nor provide a factual basis for the assertion that they provided adequate notice to D.C. of these alleged injuries. See Bonaccorsy, 685 F.Supp.2d at 23 ("`Notice of one type of injury ... is not notice of another type of injury incurred in the same incident.'") (quoting Breen v. D.C., 400 A.2d 1058, 1062 (D.C.1979)). Accordingly, the defamation claim based upon conduct by Roberts and Hastings-Carey will be dismissed also for failure to comply with § 12-309.
In the District of Columbia, "a statement is defamatory if it tends to injure [the] plaintiff in [her] trade, profession or community standing, or lower [her] in the estimation of the community." Saint-Jean I, 815 F.Supp.2d at 5 (quoting Guilford Transp. Indus., Inc. v. Wilner, 760 A.2d 580, 594 (D.C.2000)). To plead a defamation claim, a plaintiff must allege "`1) that the defendant made a false and defamatory statement concerning the plaintiff; 2) that the defendant published the statement without privilege to a third party; 3) that the defendant's fault in publishing the statement amounted to at least negligence; and 4) either that the statement was actionable as a matter of law irrespective of special harm or that its publication caused the plaintiff special harm.'" Id. (quoting Williams v. D.C., 9 A.3d at 491). However, "actionable defamation is not necessarily restricted to verbal conduct[.]" Clampitt v. Am. Univ., 957 A.2d 23, 39 (D.C.2008) (quotation marks and citation omitted); see also Wallace v. Skadden, Arps, Slate, Meagher & Flom, 715 A.2d 873, 878 n. 5 (D.C.1998) (holding that defendant's deactivation of the plaintiff's access key could not "fairly be characterized as non-defamatory as a matter of law").
In resolving a Rule 12(b)(6) motion, "the Court may only consider whether a statement cannot be reasonably capable of a defamatory meaning." Armenian Assembly of Am., Inc. v. Cafesjian, 597 F.Supp.2d 128, 141 (D.D.C.2009) (citation omitted) (emphasis in original). "[I]t is only when the court can say that the publication
The plaintiffs have not stated a claim for defamation because they have not pled that the offending statements or conduct were "published" to third parties. See Saint-Jean I, 815 F.Supp.2d at 5-6 2011 WL 4552982, at *3 (describing the second element of a defamation claim as publication). They make no allegation that the warnings Hastings-Carey issued were disclosed to anyone other than the plaintiffs themselves. (2d Am. Compl. ¶¶ 184-85.) Likewise, the plaintiffs do not assert that their suspensions were made public. The warnings and suspensions therefore are "not reasonably capable of any defamatory meaning and cannot be reasonably understood in any defamatory sense[.]" Armenian, 597 F.Supp.2d at 141. (Compare 2d Am. Compl. ¶ 201 ("DOT ... issu[ed] repeated and unnecessary warnings and suspension[s].").)
The plaintiffs likewise have cited no authority reflecting that a security guard escort, even in public view, constitutes publishing defaming conduct under D.C. law. The context described here does not either. (See 2d Am. Compl. ¶¶ 89-91.) The plaintiffs describe the humiliation and shame they felt as "other employees laughed at and mocked" them (2d Am. Compl. ¶¶ 90-91) — a decidedly unpleasant experience. However, "`[a]n allegedly defamatory remark must be more than unpleasant or offensive; the language must make the plaintiff appear odious, infamous, or ridiculous.'" Armenian, 597 F.Supp.2d at 140-41 (quoting Johnson v. Johnson Publ'g Co., 271 A.2d 696, 697 (D.C.1970)) (internal quotation marks and citation omitted). "[A]t this stage in the litigation[,] the Court need not find that the statements actually portrayed plaintiff in an `odious, infamous, or ridiculous' light, but must merely find the statements `reasonably susceptible of a defamatory meaning,' in order to find that plaintiff has stated a claim." Ihebereme, 730 F.Supp.2d at 56 (quoting Clawson v. St. Louis Post-Dispatch, L.L.C., 906 A.2d 308, 313 (D.C. 2006)) (emphasis in original).
Here, the plaintiffs have not pled that they were dragged, gagged, handcuffed or otherwise restrained, or that the security guard shouted at or insulted them while he escorted them "from the trailer to the gate[.]" (2d Am. Compl. ¶¶ 89, 183.) They do not allege that the guard openly declared them to be criminals or charlatans. Instead, they offer the "`naked assertion[,]'" Iqbal, 129 S.Ct. at 1949, that the guard escorted them "in a manner that suggested [that] they had engaged in criminal activity." (Id. ¶ 183.) "[D]evoid of `further factual enhancement[,]'" this allegation does not satisfy the publication prong of a defamation by conduct claim. See Iqbal, 129 S.Ct. at 1949. On these alleged facts, publicly escorting the plaintiffs off of DOT property "cannot be reasonably capable of a defamatory meaning." Armenian, 597 F.Supp.2d at 141.
Accordingly, the defamation claim will be dismissed.
The plaintiffs have sufficiently pled their WPA and FLSA claims. However, their quantum meruit claim is barred as based upon an illegal arrangement, and they
ORDERED that D.C.'s motion [23, 37-1] to dismiss will be GRANTED IN PART and DENIED IN PART. The motion will be GRANTED as to the plaintiffs' quantum meruit and defamation by conduct claims. The motion will be DENIED as to the plaintiffs' WPA claim, and as to those portions of the plaintiffs' FLSA claim that post-date October 16, 2005.
Id. (quoting Restatement (Second) of Agency § 228(1).) Smith was authorized to assign overtime hours and did so "within the authorized time and space limits" of the job. See id. (2d Am. Compl. ¶¶ 22, 24.) Smith's "supervisory decision" to assign overtime hours in a discriminatory manner "should be considered `actuated, at least in part, by a purpose to serve the master'" in light of D.C.'s "expansive view of the scope of employment." Id. at 98 (citation omitted).
