Brown v. Georgetown University Hospital Medstar Health

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_____________________________

)

BONITA M. BROWN, )

)

Plaintiff, )

)

v. ) Civil Action No. 06-1417 (RWR)

)

)

GEORGETOWN UNIV. HOSP. )

MEDSTAR HEALTH, )

)

Defendant. )

_____________________________ )

MEMORANDUM OPINION

Plaintiff Bonita Brown brings this action alleging

retaliation and discrimination on the basis of race or national

origin in violation of Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e, et seq., and Article 49B of the Maryland

Annotated Code, wrongful termination, breach of contract, and

intentional infliction of emotional distress (“IIED”). The

defendant, Georgetown University Hospital Medstar Health

(“Hospital”), has moved for summary judgment. Because Brown has

failed to exhaust her administrative remedies as to her

retaliation claim, the Hospital took no adverse employment action

against her, and the employment dispute took place in the

District of Columbia, the Hospital’s motion for summary judgment

will be granted with respect to Brown’s Title VII and Maryland

law claims. In addition, summary judgment for the Hospital will

be granted on Brown’s wrongful termination claim because Brown

-2-

resigned, on Brown’s breach of contract claim because Brown did

not follow her collective bargaining agreement (“CBA”) grievance

procedures, and on the IIED claim because Brown has failed to

demonstrate that the Hospital’s conduct was extreme and

outrageous.

BACKGROUND

For approximately two and one-half years, Brown was an at-

will employee for the Hospital and a member of the District

1199E-DC, Health Care Workers Union SEIU (“SEIU”). (Pl.’s Second

Am. Compl. (“Compl.”) ¶ 5; Def.’s Stmt. of Material Facts

(“Def.’s Stmt.”) ¶¶ 2, 4.)1 During the course of Brown’s

employment, the Hospital changed Brown’s work schedule by one and

one-half hours due to patient needs. (Compl. ¶¶ 10-11, 13;

Def.’s Stmt. ¶ 10.) Brown also was suspended with pay for

several days for refusing to respond to a patient’s needs and was

escorted off hospital premises for refusing to meet with her

supervisor, Michelle Humphrey. (Def.’s Stmt. ¶¶ 13-18, 21-22,

24-25; Compl. ¶¶ 21, 24.)

In mid-August 2005, Brown took sick leave from work and then

was granted leave under the Family Medical Leave Act (“FMLA”)

from August 22 through October 31, 2005. (Def.’s Stmt. ¶ 27;

1

While Brown has claimed she was employed for four years

(see Compl. ¶ 6; Def. Georgetown Univ. Hospital’s Mot. for Summ.

J. (“Def.’s Mot.”), Ex. 15), she does not contest the Hospital’s

statement that Brown was employed from March 2003 until November

2005. (Def.’s Stmt. ¶ 2.)

-3-

Def. Georgetown Univ. Hospital’s Mot. for Summ. J. (“Def.’s

Mot.”), Ex. 29.) During Brown’s absence, the Hospital removed

Brown from the schedule pending Brown’s completion of her annual

performance evaluation. (Def.’s Stmt. ¶ 25; Compl. ¶ 28.)

However, Brown never returned to work because, after extending

her FMLA leave through mid-November, Brown resigned on

November 14, 2005. (Compl. ¶ 31; Def.’s Mot., Ex. 31.)

After filing an Equal Employment Opportunity Commission

(“EEOC”) complaint alleging discrimination on the basis of

national origin, Brown brings this suit alleging retaliation and

discrimination under Title VII and Maryland law on the basis of

race or national origin, wrongful termination, breach of

contract, and IIED. (Compl. ¶ 3; Def.’s Stmt. ¶ 34-35; Def.’s

Mot., Ex. 15.) The defendant has moved for summary judgment

arguing, in part, that Brown has failed to exhaust her

administrative remedies for her discrimination claims, and that,

even if Brown has exhausted her administrative remedies, Brown

has failed to allege that she suffered from any adverse

employment action. The Hospital further argues that Maryland law

does not apply, that the wrongful termination claim fails because

Brown resigned, that the breach of contract claim fails because

Brown did not follow her CBA grievance procedures, and that there

was no outrageous conduct to substantiate Brown’s IIED claim.

-4-

DISCUSSION

To succeed on a motion for summary judgment, the movant must

show that, when the facts are viewed in the light most favorable

to the non-movant, there are no genuine issues of material fact

in dispute and that the movant is entitled to judgment as a

matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986); Fed. R. Civ. P. 56(c). In ruling on a motion for summary

judgment, the court must draw all justifiable inferences in the

nonmoving party’s favor and accept the nonmoving party’s evidence

as true. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986). Moreover, to prevail on a summary judgment motion, the

moving party must demonstrate that the non-moving party failed to

show “the existence of an element essential to that party’s case,

and on which that party will bear the burden of proof at trial.”

Celotex, 477 U.S. at 322. A party can “defeat summary judgment

through factual representations made in a sworn affidavit if

[she] supports [her] allegations . . . with facts in the record,

. . . or provides direct testimonial evidence.” Baloch v.

Norton, 517 F. Supp. 2d 345, 353 (D.D.C. 2007) (internal

quotation marks and citations omitted). Ultimately, “all that is

required [from a nonmoving party] is that sufficient evidence

supporting the claimed factual dispute be shown to require a jury

or judge to resolve the parties’ differing versions of the truth

-5-

at trial.” Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009)

(alteration in original).

I. TITLE VII

A. Administrative remedies

“[A] timely administrative charge is a prerequisite to

initiation of a Title VII action in the District Court.”

Hutchinson v. Holder, 668 F. Supp. 2d 201, 212 (D.D.C. 2009)

(alteration in original). This is a mandatory requirement

“because the administrative charge gives the charged party notice

of the claim and it ‘narrow[s] the issues for prompt adjudication

and decision.’” Caldwell v. ServiceMaster Corp., 966 F. Supp.

33, 48 (D.D.C. 1997) (alteration in original) (quoting Park v.

Howard Univ. 71 F.3d 904, 907 (D.C. Cir. 1995)). Although a

“vaguely worded [administrative] charge is not fatal to a Title

VII plaintiff[’s] case” because charges “are often drafted by

persons unschooled in technical pleading[,] . . . the requirement

of some specificity in a charge is not a mere technicality, . . .

and a liberal interpretation of an administrative charge cannot

be used to permit a litigant to bypass the Title VII

administrative process.” Id. at 49 (internal quotation marks and

citations omitted). Moreover, “the Supreme Court’s decision in

Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002),

established that ‘each discrete adverse employment action

individually triggers Title VII’s procedural requirements,’ such

that a plaintiff alleging more than one discrete discriminatory

-6-

action ‘must exhaust the administrative process [with respect to

each allegedly discriminatory action] regardless of any

relationship that may exist between those discrete claims and any

others.’” Porter v. Jackson, 668 F. Supp. 222, 229 (D.D.C. 2009)

(alterations in original) (quoting Coleman-Adebayo v. Leavitt,

326 F. Supp. 2d 132, 137-38 (D.D.C. 2004)).

Brown has asserted discrimination and retaliation claims

under Title VII.2 It is undisputed that national origin was a

basis of Brown’s EEOC charge. (See Pl.’s Opp’n at 11; Def.’s

Mot., Ex. 15, EEOC Form.) The Hospital, however, argues that

summary judgment should be granted with respect to Brown’s added

claims of racial discrimination and retaliation because the EEOC

complaint makes no reference to race or retaliation. (Def.’s

Mot. at 17.) Contrary to the defendant’s assertions, however,

the plaintiff’s EEOC complaint raises as an issue racial

discrimination. For example, Brown wrote “African American” next

to “National Origin” in the space where the complainant is to

2

Brown also has asserted a discrimination claim under

Article 49B of the Maryland Annotated Code, arguing that there is

supplemental jurisdiction over the state claim. (Compl. at 5-6;

Pl.’s Mem. of P. & A. in Supp. of Pl.’s Response to Def.’s Mot.

for Summ. J. (“Pl.’s Opp’n”) at 7.) However, Article 49B

provides only “for a private right of action in limited

circumstances, where discrimination occurs within certain

counties in Maryland[.]” Hopes v. Roche, Civil Action No. RBD-

04-2963, 2005 WL 1812820, at *8 n.5 (D. Md. Aug. 2, 2005), and

the latest amended complaint states clearly that “the employment

practices at issue here were committed within the jurisdiction of

the District of Columbia.” (Compl. ¶ 1.) The defendant’s motion

for summary judgment, therefore, will be granted on the

plaintiff’s Article 49B discrimination claim.

-7-

provide the basis for her charge. (Def.’s Mot., Ex. 15, EEOC

Charge of Discrimination.) Brown also wrote that she felt

insulted “as an African-American” when Humphrey stated “[i]t’s a

cultural thing” during a meeting organized to raise employee

awareness of cultural differences. (Id.; Def.’s Stmt. ¶ 11.)

Even though one court observed that “allegations of national

origin discrimination are not so closely related to allegations

of racial discrimination such that a conclusion about one could

reasonably be expected to grow out of an investigation of the

other[,]” Sisay v. Greyhound Lines, Inc., 34 F. Supp. 2d 59, 64

(D.D.C. 1998), Brown’s EEOC complaint includes sufficient facts

to reasonably trigger an administrative investigation into racial

discrimination.

On the other hand, Brown’s EEOC complaint makes no reference

to retaliation. While the EEOC complaint alleges that Humphrey

harassed Brown throughout her years of employment, “especially

during the last six months” and that Brown “wrote a lengthy

letter to the human resource office detailing the problems [she

had] encountered” (Pl.’s Mem. at 11; Def.’s Mot., Ex. 15),

nowhere on the complaint does the word retaliation appear. Nor

is there any reference to specific events occurring after Brown’s

letter to human resources that would put the defendant on notice

of any retaliation claim. Given that the exhaustion requirement

intends to give the agency an opportunity to handle claims

“internally and ensures that only claims plaintiff has diligently

-8-

pursued will survive,” Romero-Ostolaza v. Ridge, 370 F. Supp. 2d

139, 149 (D.D.C. 2005), the Hospital’s motion for summary

judgment will be granted with respect to Brown’s retaliation

claim.

B. Adverse employment action

Under Title VII, “it is unlawful for an employer to fail or

refuse to hire or to discharge any individual, or otherwise to

discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment,

because of such individual’s race, color, religion, sex, or

national origin.” Duniya v. Rice, Civil Action No. 04-0851 (GK),

2007 WL 1549074, at *3 (D.D.C. May 25, 2007) (quoting 42 U.S.C.

§ 2000e-2(a)(1)). In the absence of direct evidence of

discrimination, a plaintiff claiming disparate treatment

employment discrimination under Title VII must establish: “(1)

she is a member of a protected class3; (2) she suffered an

3

The defendant’s claim that plaintiff, as an American, is

not a member of a protected class (Def.’s Mot. at 20) is without

merit. It is undisputed that Brown is African-American, and, as

such, Brown is a member of a protected class. See Brownfield v.

Bair, 541 F. Supp. 22 35, 41 (D.D.C. 2008). National origin has

been defined as “the country where a person was born, or, more

broadly, the country from which his or her ancestors came.”

Espinoza v. Farah Mfg. Co., Inc. 414 U.S. 86, 88 (1973). Here,

of course, Brown’s ancestral reference is a continent, not a

country. But because Brown is African-American, she not only can

support her race claim, but also can support her national origin

claim. Several courts have accepted without question a

plaintiff’s Title VII national origin discrimination claim where

the plaintiff was African-American. See, e.g., Vines v. Gates,

577 F. Supp. 2d 242, 245 (D.D.C. 2008); Waldo v. N.Y. City Health

and Hospitals Corp., No. 06-CV-2614, 2009 WL 2777003, at *9

-9-

adverse employment action; and (3) the unfavorable action gives

rise to an inference of discrimination.” Id. at *4.

The D.C. Circuit defines adverse employment action as “a

significant change in employment status, such as hiring, firing,

failing to promote, reassignment with significantly different

responsibilities, or a decision causing significant change in

benefits.” Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir.

2003). Courts focus on “ultimate employment decisions such as

hiring, granting leave, promoting and compensating employees in

this context and adverse employment actions do not include purely

subjective injuries, such as dissatisfaction with reassignment,

public humiliation, or loss of reputation.” Williams v. Tapella,

658 F. Supp. 2d 204, 211 (D.D.C. 2009).

Brown claims that she suffered adverse employment actions

when the Hospital changed her schedule, suspended her with pay,

escorted her off the premises, and temporarily removed her from

the schedule. (Compl. ¶¶ 10, 19-20, 24-25, 28.) None of these

alleged actions, however, amounts to an adverse employment

action. A scheduling dispute, without evidence of a material

change in responsibilities or employment status, is not an

adverse employment action. Blake v. Potter, 247 Fed. App’x 673,

675 (6th Cir. 2007) (stating that denying an employee’s schedule

(E.D.N.Y. Aug. 31, 2009); Brown v. Ill. Dep’t of Natural Res.,

No. 07 C 2808, 2009 WL 1393298, at *1 (N.D. Ill. May 15, 2009);

Turner v. St. Luke’s Episcopal Health System, Civil Action No. H-

06-1668, 2008 WL 706709, at *7 (S.D. Tex. 2008).

-10-

change request does not constitute an adverse employment action

where it does not result in a less distinguished title, a

material loss of benefits, or significantly diminished material

responsibilities); Jackson v. Acedo, Civil Action No. 08-1941

(RBW), 2009 WL 2619446, at *5 (D.D.C. Aug. 26, 2009) (noting that

denying a plaintiff’s request for a schedule change does not

constitute a tangible change in duties or working conditions, or

a material employment disadvantage). The Hospital gave Brown

over four weeks notice of the schedule change (Def.’s Mot., Ex.

14), and the modification represented only a one and one-half

hour change from the plaintiff’s previous schedule. (Def.’s Mot.

at 24.) Moreover, the plaintiff makes no showing that the

revised schedule resulted in a change of employment status or

work-related duties. (See id. at 23.) The mere fact that Brown

might have preferred to keep her previous work schedule or that

the change might have inconvenienced Brown is not sufficient to

make out an adverse employment action. See Brown v. Brody, 199

F.3d 446, 457 (D.C. Cir. 1999) (“Mere idiosyncrasies of personal

preference are not sufficient to state an injury”), abrogated on

other grounds by Steele v. Schafer, 535 F.3d 689 (D.C. Cir.

2008).

Nor does Brown’s suspension with pay constitute an adverse

employment action. See Roberson v. Snow, 404 F. Supp. 2d 79, 93

(D.D.C. 2005) (collecting cases); Boykin v. England, Civil Action

No. 02-950 (JDB), 2003 WL 21788953, at *4 n.5 (D.D.C. July 16,

-11-

2003) (noting that “an employee’s placement on paid

administrative leave for a limited period does not constitute an

adverse employment action”); Dickerson v. SecTeck, Inc., 238 F.

Supp. 2d 66, 79 (D.D.C. 2002) (stating that “when an employee is

placed on administrative leave or suspended pending an internal

investigation, that decision does not constitute adverse

employment action, at least when the suspension is relatively

brief”); see also Peltier v. United States, 388 F.3d 984, 988

(6th Cir. 2004) (holding that “suspension with pay and full

benefits pending a timely investigation into a suspected

wrongdoing is not an adverse employment action”) (emphasis in

original); cf. Greer v. Paulson, 505 F.3d 1306, 1318 (D.C. Cir.

2007) (noting that the Supreme Court “recently observed . . .

[that] a suspension without pay, even where the employer later

provided back pay, could be a ‘serious hardship’ to a reasonable

employee, and thus ‘materially adverse’”) (emphasis added); Banks

v. District of Columbia, 498 F. Supp. 2d 228, 233 (D.D.C. 2007)

(finding that a “nine day suspension without pay can certainly be

described as an adverse employment action” (emphasis added)).

Brown was “suspended with pay pending investigation from

May 26th, 2005 to June 6th, 2005 for gross misconduct” after she

became argumentative with a patient’s relatives and “refused to

get another member of [the] staff to replace” her at the

patient’s request. (Def.’s Mot., Ex. 19.) Brown’s behavior was

-12-

deemed a “blatant disregard” of the Hospital’s Code of Conduct

and Disciplinary Actions and Dismissals’ policy. (Id.) The

suspension was brief, Brown received full pay and benefits, and

she did not suffer a change in employment status or economic

harm. The suspension, therefore, did not constitute an adverse

employment action.

The same conclusion follows from Brown having been removed

from the schedule. The removal did not change Brown’s employment

status and was temporary only. In fact, the removal was wholly

dependant on Brown fulfilling her obligation to meet with

Humphrey to discuss her performance evaluation. Moreover, the

removal was implemented during a period in which Brown was not

reporting to work due to sickness (Def.’s Mot. at 25; Pl.’s

Compl. ¶¶ 25-28) and had no substantive effect on Brown’s duties

or responsibilities.

Finally, escorting Brown off hospital premises does not

amount to an adverse employment action. “Actions short of an

outright firing can be adverse within the meaning of Title VII,

but not all lesser actions by employers count.” Forkkio v.

Powell, 306 F.3d 1127, 1130 (D.C. Cir. 2002). While the

Hospital’s action may have embarrassed Brown, such subjective

injury is not an adverse action for the purposes of Title VII.

Because Brown has failed to allege any adverse employment action,

the defendant’s motion for summary judgment will be granted on

Brown’s Title VII discrimination claim.

-13-

II. WRONGFUL TERMINATION

Brown alleges that her “termination was wrongful and without

any cause[] whatsoever[.]” (Compl. ¶ 41.) It is undisputed,

however, that the plaintiff was not terminated; rather, she

resigned. (Def.’s Mot., Ex. 31.) Even if the Hospital had

terminated Brown’s employment, it would have been well within its

rights to do so. “[T]he District of Columbia does not recognize

wrongful discharge claims for an at-will employee.” Frazier v.

Univ. of D.C., 742 F. Supp. 28, 29 (D.D.C. 1990). “Termination

of employment does not breach an at-will employment contract

because by its very terms the agreement contemplates that either

party may end the employment relationship without cause.” Ames

v. HSBC Bank USA, N.A., Civil Action No. 06-2039 (RMC), 2007 WL

1404443, at *2 (D.D.C. May 11, 2007).

Brown, however, in her response to the Hospital’s summary

judgment motion, now argues that her “claim rises to the level of

‘constructive discharge.’” (Pl.’s Resp. at 12.) “An actionable

constructive discharge claim requires a showing that

(1) intentional discrimination existed, (2) the employer

deliberately made working conditions intolerable and

(3) aggravating factors justified the plaintiff’s conclusion that

she had no option but to end her employment.” Turner v. District

of Columbia, 383 F. Supp. 2d 157, 171 (D.D.C. 2005) (citing

Carter v. George Washington Univ., 180 F. Supp. 2d 97, 110

(D.D.C. 2001)). In the D.C. Circuit, “a ‘finding of constructive

-14-

discharge depends on whether the employer deliberately made

working conditions intolerable and drove the employee’ out.”

Mungin v. Katten Muchin & Zavis, 116 F.3d 1549, 1558 (D.C. Cir.

1997) (quoting Clark v. Marsh, 665 F.2d 1168, 1173 (D.C. Cir.

1981)). The test is objective and “federal courts have

established a relatively high threshold for what a reasonable

employee would tolerate.” Kalinoski v. Gutierrez, 435 F. Supp.

2d 55, 78 (D.D.C. 2006).

The only facts that Brown alleges in support of her

constructive discharge claim are that her annual evaluation never

occurred and that she was escorted off hospital premises. (Pl.’s

Reply at 12-13.) However, the Hospital has shown that Humphrey

tried to schedule Brown’s annual evaluation (Def.’s Mot., Ex. 28)

and that Brown was escorted off hospital premises after refusing

to report to Humphrey’s office. (Def.’s Stmt. ¶ 25.) Moreover,

the plaintiff has not shown that her work conditions were so

intolerable that she was driven out. See, e.g., Kalinoski, 435

F. Supp. 2d at 78 (granting defendant summary judgment on the

plaintiff’s constructive discharge claim where the plaintiff’s

only evidence was that she was denied requests for accrued

medical leave and placed on leave without pay); cf. Hunt v. City

of Markham, Ill., 219 F.3d 649, 655 (7th Cir. 2000) (“A person

who is told repeatedly that he is not wanted, has no future, and

can’t count on ever getting another raise would not be acting

unreasonably if he decided that to remain with this employer

-15-

would necessarily be inconsistent with even a minimal sense of

self-respect, and therefore intolerable.”) Also, the defendant

makes no showing of intentional discrimination. See Sewell v.

Chao, 532 F. Supp 2d 126, 144 (D.D.C. 2008) (noting that because

plaintiff could not satisfy her age discrimination or hostile

work environment claim, summary judgment also must be granted to

the defendant on a constructive discharge claim); cf. Harris v.

Wackenhut Servs., Inc., 590 F. Supp. 2d 54 (D.D.C. 2008) (noting

that the Court presumes that the plaintiff has satisfied the

intentional discrimination prong of a constructive discharge

claim after having previously decided that an issue of material

fact exists as to the plaintiff’s race discrimination claim).

Without more, the plaintiff’s belated claim for constructive

discharge cannot survive the defendant’s summary judgment motion.

III. BREACH OF CONTRACT

Brown alleges that the Hospital breached the CBA between it

and the SEIU by refusing “to allow her to meet with management

with her union representati[ve]” and terminating her without

cause. (Compl. ¶ 45; Pl.’s Reply at 13.) In response, the

Hospital argues that Brown failed to exhaust her administrative

remedies by failing to “proceed through the grievance procedures

established by [the] agreement.” (Def.’s Mot. at 37.)

-16-

“[P]arties to a collective bargaining agreement normally

must seek to resolve their contract disputes under agreed-upon

grievance and arbitration procedures[.]” Noble v. U.S. Postal

Serv., 537 F. Supp. 2d 210, 219 (D.D.C. 2008) (internal citation

omitted); see also Allis-Chalmers Corp. v. Lueck, 471 U.S. 202,

210 (1985). “The general rule in this circuit is that the

exhaustion requirement ‘may be waived in only the most

exceptional circumstances.’” Communic’ns Workers of Am. v. A.T.

& T., 40 F.3d 426, 432 (D.C. Cir. 1994) (quoting Peter Kiewit

Sons’ Co. v. U.S. Army Corps of Eng’rs, 714 F.2d 163, 168-69

(D.C. Cir. 1983)). “[E]xhaustion can be excused ‘on grounds of

futility only when resort to administrative remedies is clearly

useless.’” Noble, 537 F. Supp. 2d at 219 (quoting Ass’n of

Flight Attendants - CWA, AFL-CIO v. Chao, 493 F.3d 155, 159 (D.C.

Cir. 2007)).

When a provision of the CBA at issue here is breached, an

aggrieved employee must follow a two-step process. First, the

employee must present her “grievance orally to [her] immediate

supervisor” within 21 days of the occurrence of the event.

(Def.’s Mot., Ex. 2, Art. 22.) If the grievance is not resolved

at Step 1, the employee may proceed to Step 2 within 21 days of

the employer’s response to the employee’s oral grievance. There,

a union representative or aggrieved employee must present the

grievance in writing to the Manager of Employee and Labor

Relations, or the appropriate Vice President or designee. An

-17-

employer’s failure to answer a grievance at any step is not

deemed to be acquiescence and the union may proceed to the next

step. (Id.)

Brown does not dispute that she should have followed the

CBA’s grievance procedures, but argues that she “diligently

sought to follow the procedures . . . as best as she could

despite efforts by [the Hospital] to thwart her attempts to meet

with management while being represented by counsel.” (Pl.’s

Reply at 13.) Brown’s argument is deficient in two primary ways.

First, Brown provides no evidence that she was entitled to have

union representation at her management meeting. While the CBA

gives an employee the right to have a “union delegate present

when being discharged or during the issuance of an official

warning or suspension” (Def.’s Mot., Ex. 2., Art. 21, ¶ 1), Brown

fails to state whether the meeting with management involved a

warning, suspension, or discharge. Rather, the meeting appears

to have been scheduled for a performance evaluation. Second,

even if the Hospital had breached the CBA, Brown provides no

evidence that she orally notified her supervisor of the grievance

or that she proceeded to Step 2 and submitted any writing

detailing the grievance in the absence of a response from her

supervisor. Because Brown failed to exhaust her administrative

remedies under the CBA, the Hospital’s summary judgment motion

will be granted as to Brown’s breach of contract claim.

-18-

IV. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

IIED requires a showing of “(1) extreme and outrageous

conduct [by the defendant] which (2) intentionally or recklessly

(3) causes the plaintiff severe emotional distress.” Ben-Kotel

v. Howard Univ., 156 F. Supp. 2d 8, 14 (D.D.C. 2001) (internal

quotation marks omitted) (alterations in original). It is not

easy for a plaintiff to prove that she was subject to extreme and

outrageous conduct. Wanko v. Catholic Univ. of Am., Civil Action

No. 08-2115, 2009 WL 3052477, at *5 (D.D.C. Sept. 22, 2009). A

defendant is liable “only where the conduct has been 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.”

Id.

Brown alleges that the defendant forcibly escorted her off

the premises and that she suffered “from a heart condition known

as Angina” as a result. (Id. ¶¶ 47-48.) This alleged conduct,

however, is neither extreme nor outrageous. See, e.g.,

Tiefenbacher v. Am. Ass’n of Retired Persons, Civil Action No.

05-1802 (CKK), 2006 WL 1126841, at *4 (D.D.C. 2006) (dismissing

IIED claim where defendant’s alleged actions included “escorting

[the plaintiff] from the building ‘like a common criminal,’”

making obscene, crude and sexually offensive statements, and

terminating plaintiff). While Brown’s complaint alleges that she

was “forcibly” escorted off the premises, she provides no facts

-19-

or evidence to substantiate her claim. Also, the Hospital’s

alleged conduct occurred in the context of an employment dispute.

“Courts are particularly demanding when intentional infliction of

emotional distress claims are made in an employment context.”

Elhusseini v. Compass Group USA, Inc., 578 F. Supp. 2d 6, 23

(D.D.C. 2008). “Employer-employee conflicts generally do not, as

a matter of law, rise to the level of outrageous conduct.” Id.

Moreover, courts have dismissed intentional infliction of

emotional distress claims under far more egregious circumstances.

See Crowley v. N. Am. Telecomm. Assoc., 691 A.2d 1169, 1172 (D.C.

1997) (dismissing claim where plaintiff allegedly was subjected

to contempt, scorn and other indignities by his supervisor, and

received an unwarranted evaluation and discharge); Kerrigan v.

Britches of Georgetowne, Inc., 705 A.2d 624, 628 (D.C. 1997)

(dismissing claim where the defendant allegedly targeted the

plaintiff for a sexual harassment lawsuit, manufactured evidence

against him, leaked to other employees information from the

investigation, and unjustifiably demoted him). Here, the

Hospital’s alleged conduct is not sufficient to constitute IIED

or withstand the defendant’s summary judgment motion.

CONCLUSION

Because Brown has failed to exhaust her administrative

remedies as to her retaliation claim, the Hospital took no

adverse employment action against her, and none of the alleged

events took place in Maryland, the defendant’s summary judgment

-20-

motion will be granted with respect to Brown’s Title VII and

Maryland law discrimination claims. Furthermore, summary

judgment will be granted on Brown’s wrongful termination claim

because Brown resigned, on Brown’s breach of contract claim

because Brown failed to follow her CBA grievance procedures, and

on Brown’s IIED claim because Brown has failed to demonstrate

that the Hospital’s conduct was outrageous and extreme.

A final, appealable Order accompanies this Memorandum

Opinion.

SIGNED this 29th day of March, 2011.

/s/

RICHARD W. ROBERTS

United States District Judge