Summary
finding plaintiff's claims for intentional infliction of emotional distress preempted by the CMPA where plaintiff alleged superiors retaliated against him for reporting illegal conduct
Summary of this case from Kangethe v. Dist. of ColumbiaOpinion
Civil Action No. 03 CV 310 (SBC).
April 8, 2005
MEMORANDUM OPINION AND ORDER
Sidney Wise was terminated from his position as Chief of Contracting and Procurement for the District of Columbia's Commission of Mental Health Services ("CMHS"). As a result of his termination, he sues the District of Columbia ("the District"), Elizabeth Jones, CMHS chief operating officer, Dr. Scott Nelson, former court-appointed receiver for CMHS, Denny Jones, court-appointed receiver for CMHS, and Evette Jackson, director of community services agency, for violating his civil rights and First Amendment right to speak on matters of public concern (Counts I and V), wrongful termination (Count II), and intentional infliction of emotional distress (Counts III and IV). The District and Elizabeth Jones (collectively, "defendants") move to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) or, in the alternative, for summary judgment. The remaining defendants were never served during the two years this case has been pending. On March 13, 2005, movants gave Wise notice of his failure to serve the other defendants. On March 22, 2005, the court issued a rule to show cause why Scott Nelson, Denny Jones and Evette Jackson should not be dismissed pursuant to Fed.R.Civ.P.4(m), and for want of prosecution under Fed.R.Civ.P.41(b). Wise failed to respond to the rule to show cause.
On March 11, 2005, the Chief Justice of the United States reassigned this case to Judge Suzanne B. Conlon of the United States District Court for the Northern District of Illinois. See Dkt. No. 9, Case No. 03-310.
BACKGROUND
For purposes of this motion to dismiss, the court accepts all well-pleaded factual allegations in the complaint as true and draws all reasonable inferences in Wise's favor. See Stachon v. United Consumers Club, Inc., 229 F.3d 673, 675 (7th Cir. 2000). The court does not accept as true legal conclusions couched as factual allegations, such as Wise's allegations in ¶¶ 57, 62, 73, 74, 77 and 78 that the individual defendants acted as District policy-makers and/or agents. See Papasan v. Allain, 478 U.S. 265, 286 (1986).Wise was hired as CMHS Chief of Contracting and Procurement on April 13, 1998, CMHS was in receivership and Dr. Scott Nelson was the receiver at the time. CMHS remained in receivership throughout the duration of Wise's employment. When Wise was hired, CMHS contract and procurement system was in disarray and failed to comply with District of Columbia and federal contracting and procurement laws and regulations. Wise implemented several new procedures to enhance CMHS contract and procurement operations. Wise's superiors resisted the changes. As a result, contracts continued to violate District of Columbia and federal contracting and procurement laws. Wise complained of the violations to the receiver and Evette Jackson, director of community services agency ("CSA"), a subdivision of CMHS. Wise also complained that contractors performed work without a contract in violation of contract and procurement laws and regulations.
Around March 2000, Price Waterhouse audited CMHS contracting procedures. Wise sent Denny Jones a letter requesting an opportunity to review and comment on the draft audit report. Denny Jones and Elizabeth Jones refused to allow him to review or to comment on the draft audit report in retaliation for his complaints about the contract violations.
On April 14, 2000, Elizabeth Jones asked Wise to resign because of information reported in Price Waterhouse's audit report. Wise again asked to review the audit report; his request was denied. On April 17, 2000, Wise attempted to resign. His resignation was not accepted, but he was terminated. On April 20, 2000, the Washington Post reported that Wise was terminated for poor performance. On April 27, 2000, Wise received written notice of termination from Elizabeth Jones. The notice did not contain a reason for his termination. Wise's personnel records reflect a May 15, 2000 termination date.
DISCUSSION
I. Legal Standard
Defendants move to dismiss the complaint pursuant to Fed.R.Civ.P.12(b)(6) or, alternatively, for summary judgment pursuant to Fed.R.Civ.P. 56. In support of their motion, defendants submitted a statement of undisputed facts with supporting documents. Wise argues the supporting documents cannot be considered by the court because they are inadmissible under Fed.R.Civ.P. 56(e). In deciding this motion, the court does not rely on the statement of undisputed facts or the supporting documents, other than the public records in Fantasia v. Office of the Receiver, Case No. 01-1079, Jennings v. District of Columbia, Case No. 02-314, and Dixon v. Harris, Case No. 74-285. Defendants' motion is therefore properly treated as a Rule 12(b)(6) motion to dismiss. See Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir. 2004) (court may take judicial notice of public records when deciding motion to dismiss); Davis v. Bayless, 70 F.3d 367, 372, n. 3 (5th Cir. 1995) (court took judicial notice of court orders authorizing receiver's actions).
A motion to dismiss tests the sufficiency of the complaint, not its merits. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In ruling on a motion to dismiss, the court considers "whether relief is possible under any set of facts that could be established consistent with the allegations." Pokuta v. Trans World Airlines, Inc., 191 F.3d 834, 839 (7th Cir. 1999), citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957). A motion to dismiss should not be granted "unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley, 355 U.S. at 45-46.
II. Counts I and V
In Counts I and V, Wise alleges defendants violated his civil rights under 28 U.S.C. § 1983 and his First Amendment right to free speech. More specifically, he alleges Elizabeth Jones and Jackson violated his First Amendment rights by creating a hostile work environment, terminating his employment, and making false and defamatory statements about him in retaliation for speaking out on matters of public concern. He alleges Denny Jones and Nelson violated his First Amendment right by permitting Elizabeth Jones and Jackson to retaliate against him. He seeks to hold the District liable for the acts of Denny Jones and Nelson, claiming they were final policy-makers for the District regarding personnel matters. Complaint ¶ 57. He further alleges the individual defendants acted pursuant to a District custom, plan or policy to retaliate against employees who complained of illegal conduct. Id. at ¶¶ 49-57. Finally, he alleges the District's failure to supervise, monitor or train its agents caused the constitutional violations. Id. at ¶¶ 77-78.
Defendants argue Counts I and V must be dismissed against them because the District and its employees were divested of all authority over CMHS personnel matters as a result of the court-imposed receivership. On June 13, 1997, this court appointed a receiver to "oversee, supervise, and direct all financial, contractual, legal, administrative, and personnel functions of the CMHS, and to restructure the CMHS. . . ." Dixon v. Barry, 967 F.Supp. 535, 555 (D.D.C. 1997). The receivership order granted the receiver:
1. All powers over the CMHS currently exercised by the Commission of Mental Health Services, the Director of Human Services, and the Mayor of the District of Columbia. 2. The power to establish personnel policies; to create, abolish or transfer positions; to hire, terminate, promote, transfer, evaluate, and set compensation for staff. . . . [and] 4. The power to restructure and reorganize the management and administrative divisions of the CMHS.Id. at 555-556. Defendants argue they cannot be liable for Wise's termination or any retaliatory personnel decisions because the receiver had full authority over personnel matters, and they are not liable for the receiver's actions. The court agrees.
In Jennings v. District of Columbia, 02-314 (GK) (D.D.C. December 10, 2002), the plaintiff sued the District as a result of injuries she allegedly sustained while residing at a CMHS facility. The court dismissed the complaint because CMHS was in receivership at the time of the injuries. This court held as a matter of law that the District is not responsible for the receiver's actions because the Dixon receivership order divested the District of all power over the CMHS. Plaintiff contended she did not seek to hold the District liable for the receiver's actions, but rather for the District's unconstitutional policy of placing persons with mental illness in unlicensed and dangerous facilities. The court rejected this argument because the Dixon receivership order completely divested the District of all power over CMHS, including the power to develop and carry out CMHS policies. Jennings, slip op. at 6-7.
Defendants attach the Jennings slip opinion as Exhibit 1 to their supplemental brief in support of their motion to dismiss.
Similarly, in Fantasia v. Office of the Receiver of the Commission on Mental Health, 2001 U.S. Dist. LEXIS 25858 (D.D.C. December 21, 2001), plaintiff sued CMHS, among others, arising out of his termination from employment as director of financial services for CMHS. The court dismissed the complaint against CMHS because the Dixon receivership order divested CMHS and the District of authority over personnel matters. Id. at *17. The court concluded:
Defendants attach the Fantasia slip opinion as Exhibit 1 to their memorandum in support of motion to dismiss.
[i]t would be unjust to hold the District or Commission liable for activities undertaken by a court-appointed Receiver, where the Receiver, for the Court exercised full authority over the Commission's operations, including personnel functions, without any oversight from the District. Indeed, the Commission and the District not only lacked the power to override the Receiver, but were also bound by court order to comply with his directives. Accordingly, Fantasia's claims against the Commission are dismissed, necessarily precluding any claim against the District.Id.
Similarly, Counts I and V of the complaint must be dismissed against defendants because as a matter of law, the District and its employees lacked the power or authority to make personnel decisions or to establish personnel policies for CMHS. The court-appointed receivers exercised full authority over personnel matters throughout the duration of Wise's CMHS employment. As Jennings and Fantasia hold, the District is not liable for the receiver's personnel decisions or policies. Counts I and V must therefore be dismissed with prejudice against the District and Elizabeth Jones.
Wise relies on Mason v. District of Columbia, Civil Action No. 01-1356 (D.C. March 24, 2003), to argue defendants are liable for the receiver's actions. Opposition at 6-7. In Mason, the Superior Court for the District of Columbia denied the District's motion to dismiss plaintiff's complaint arising out of his termination from CMHS. As an initial matter, Mason is not controlling authority for the federal claims advanced in Counts 1 and V. Moreover, Mason is clearly distinguishable. The Mason court distinguished Fantasia based on the positions held by the plaintiffs. Unlike the plaintiff in Mason, the plaintiff in Fantasia held a high level administrative position. See Mason, slip op. at 2. Similarly, Wise held a high level administrative position — Director of Contracting and Procurement. Wise's reliance on Mason is therefore misplaced.
Wise attaches the Mason order as Exhibit 2 to his Opposition.
Wise also relies on the indemnification language in the Dixon receivership order as support for his argument that defendants are liable for the receiver's actions. Opposition at 3, 6. The receivership order provides that the receiver "shall be indemnified in the same manner and to the same extent as other agency heads within the District of Columbia government." Dixon, 967 F. Supp. at 556. Wise's argument fails for several reasons. First, he fails to provide any authority to support his argument that the indemnification provision creates a right of action against the District or its employees for alleged constitutional violations of the receiver. Second, he fails to distinguish Fantasia and Jennings. Both cases dismissed claims against the District based on the Dixon receivership order. The indemnification language has not changed. Under the Dixon order, neither the District nor its employees had authority over CMHS personnel decisions and policies. The court must therefore dismiss Counts I and V against the District and Elizabeth Jones with prejudice.
III. Count II
In Count II, Wise alleges defendants wrongfully terminated his employment in violation of District of Columbia Personnel Regulations. See D.C. Mun. Regs. title 6, § 907. As a matter of law, the Dixon receivership order divested the District and its employees of all authority to make personnel decisions and to establish personnel policies. As a result, the decision to terminate Wise's employment cannot be attributed to either the District or Elizabeth Jones, and Count II must be dismissed with prejudice against them. Fantasia, 2001 U.S. Dist. LEXIS at *17.
IV. Counts III and IV
In Counts III and IV, Wise alleges the individual defendants' retaliatory conduct constitutes an intentional infliction of emotional distress. He seeks to hold the District liable for the individual defendants' retaliatory conduct under the doctrine of respondeat superior. Complaint ¶ 74. For the reasons explained above, the District and Elizabeth Jones are not liable for any personnel decisions made by the receivers. Thus, Counts III and IV must be dismissed with prejudice against the District and Elizabeth Jones.
Defendants argue Counts III and IV must be dismissed because they are preempted by the Comprehensive Merit Personnel Act, D.C. Code § 1-602.01 ("CMPA"). Wise fails to respond to this argument in his opposition brief. With few exceptions, the CMPA is the exclusive remedy for a District of Columbia public employee who has a work-related complaint of any kind. Robinson v. District of Columbia, 748 A.2d 409, 411 (D.C. 2000); Stockard v. Moss, 706 A.2d 561, 565 (D.C. 1997). Wise was covered by the CMPA. See D.C. Code § 1-602.01(d). Moreover, the Dixon order requires the receivership to be carried out in accordance with District of Columbia laws and regulations. Dixon, 967 F. Supp. at 556.
In King v. Kidd, 640 A.2d 656, 663 (D.C. 1993), the court held the CMPA does not preempt all claims for intentional infliction of emotional distress. For example, intentional infliction of emotional distress claims fundamentally linked to charges of sexual harassment and retaliation are not preempted. Id. The CMPA preempts a common law action only if the acts allegedly forming the basis of the claim relate to personnel issues such as performance ratings, adverse employment actions, and employee grievances. Id.
In Burton v. District of Columbia, 835 A.2d 1076, 1077-8 (D.C. 2003), plaintiff alleged defendants retaliated against him for reporting misconduct. Defendants moved for judgment as a matter of law on the ground that plaintiff had failed to exhaust his administrative remedies as required by the CMPA. The district court granted the motion and entered judgment as a matter of law for the District. The judgment was affirmed on appeal. Id. at 1078. Similarly, Wise alleges defendants retaliated against him for reporting illegal conduct. Wise's intentional infliction of emotional distress claims arise out of the same allegations. Complaint ¶¶ 64, 65, 69, 70. Accordingly, even if Counts III and IV were not dismissed for the other reasons set forth above, dismissal would still be warranted because Wise has not exhausted his administrative remedies as required under the CMPA. See Burton, 835 A.2d at 1078.
Defendants argue Counts III and IV fail to state an intentional infliction of emotional distress claim under District of Columbia law. See Kerrigan v. Britches of Georgetown, 705 A.2d 624, 627-628 (D.C. 1997). Wise responds that he states a claim because the receivers and agents not only terminated his employment for exercising free speech, they then "rubbed salt into the wounds by telling him he could retire while going behind his back and telling the Washington Post he was fired." Opposition at 7. To state a claim for intentional infliction of emotional distress under District of Columbia law, Wise must allege defendants engaged in extreme or outrageous conduct that intentionally or recklessly caused him severe emotional distress. Kerrigan, 705 A.2d at 628. To establish outrageousness, Wise must allege conduct so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, to be regarded as atrocious, and utterly intolerable in a civilized community. See id; Cooke v. The Catholic University of America, 1998 U.S. Dist LEXIS 18567, at *15-16 (D.D.C. Nov. 20, 1998). When a claim for intentional infliction of emotional distress is raised in the employment context, District of Columbia courts are demanding in the proof required. See Kerrigan, 705 A.2d at 628 (infliction of emotional distress claim dismissed where plaintiff alleged defendant targeted him for sexual harassment investigation, leaked information regarding the investigation to other employees, and demoted him). Accepting Wise's allegations as true, he has not alleged conduct so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency. Even if Counts III and IV were not dismissed for the other reasons explained above, they must still be dismissed for failure to state a claim.
CONCLUSION
The motion of the District of Columbia and Elizabeth Jones to dismiss is granted. Counts I through V of the complaint are dismissed with prejudice against the District of Columbia and Elizabeth Jones. Their alternative motion for summary judgment is denied as moot. All claims against the remaining defendants are dismissed with prejudice for want of prosecution pursuant to Fed.R.Civ.P.41(b).