The opinion
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
THERESA WILLIAMS,
Plaintiff,
Civil Action No. 15-2266 (BAH)
v.
Chief Judge Beryl A. Howell
CHUGACH ALASKA CORPORATION,
Defendant.
MEMORANDUM OPINION
The plaintiff, Theresa Williams, brought a Complaint against the defendant, Chugach
Alaska Corporation, alleging common law wrongful termination of her employment and
infliction of emotional distress. 1 Compl. ¶¶ 23–24, ECF No. 5-1. Pending before the Court is
the defendant’s Motion to Dismiss the Complaint (“Def.’s Mot.”), ECF No. 7, and the plaintiff’s
Motion to Amend Complaint and Opposition to Defendant’s Motion to Dismiss the Complaint
(“Pl.’s Mot. Amend.”), ECF No. 10. For the reasons set forth below, the defendant’s motion is
granted and, because the proposed amendment would be futile, the plaintiff’s motion is denied. 2
I. BACKGROUND
The following facts, taken from the Complaint and the Proposed Amended Complaint,
ECF No. 10-1, will be assumed as true for purposes of the pending motions. The Proposed
1
The defendant characterizes this claim as one for “intentional infliction of emotional distress.” Def.’s
Mem. Supp. Mot. Dismiss (“Def.’s Mem.”) at 7, ECF No. 7. In the Complaint, however, the plaintiff refers to the
claim simply as “Emotional Distress” and avers that the defendant’s “negligent conduct” caused that distress,
suggesting her claim is for negligent infliction of emotional distress. Compl. ¶ 24. As will be explained, the precise
nature of this part of the plaintiff’s original claim is irrelevant to the present analysis.
2
This Court has diversity jurisdiction over this lawsuit, under 28 U.S.C. § 1332(a), since the plaintiff is a
citizen of the District of Columbia and the defendant is citizen of Alaska, Compl. ¶ 6, and the amount in controversy
exceeds $75,000, Compl. at 5 (alleging that plaintiff is entitled to lost wages and benefits “in an amount not less than
650 thousand dollars”).
1
Amended Complaint asserts only a single claim for wrongful termination, bolstered by new
factual allegations, Proposed Am. Compl. ¶¶ 4–13, omits certain facts contained in the original
Complaint, and drops the plaintiff’s original claim for infliction of emotional distress. To aid in
resolving both the defendant’s motion to dismiss and the plaintiff’s motion for leave to file an
amended complaint, the factual allegations supporting both filings are set out below.
The plaintiff was an employee at the Potomac Job Corps Center (“PJCC”), from
December 2008 until her termination on October 3, 2014. Compl. ¶ 5. The defendant began
operating the PJCC, pursuant to a contract with the Department of Labor (“DOL”), in May 2011,
and employed plaintiff as a “Recreation Manager” until her termination. Id. ¶ 5. The Proposed
Amended Complaint describes two incidents.
The first incident allegedly occurred in August 2014, when the plaintiff and Fred Rowe,
who was the Community Living Director and the plaintiff’s supervisor, found themselves at
loggerheads about a matter involving use of funds. Specifically, PJCC was “planning to
celebrate 50 years of service.” Proposed Am. Compl. ¶ 5. Rowe instructed the plaintiff to
contact a graphic designer to design banners to mark the occasion and to order the banners by
August 25, 2014. Id. ¶ 6. The plaintiff contracted with FedEx to produce the banners at a cost of
approximately $1060.00. Id. ¶ 7. Rowe approved the amount and paid for the banners from the
funds allocated for the plaintiff’s recreation activities. Id. ¶ 8.
The plaintiff objected to this use of funds on the ground that PJCC was not permitted to
“transfer funds from one budget . . . category to another without getting approval from the DOL
Regional Office,” and that the PJCC had not obtained that approval. Id. ¶¶ 9–10. According to
the plaintiff, the “PJC[C], pursuant to OBM [sic] Circular 136, is restricted as it relates to illegal
transfers between line items,” and that “[n]o funds can be removed from one line item
2
(department) without the permission of the regional Job Corps Office.” Id. ¶¶ 12–13.
Nonetheless, the plaintiff alleges that she was ordered by Rowe, along with Roxanne Chin,
PJCC’s Director, to “expend recreation resources for the 50th Anniversary banners.” Id. ¶¶ 5, 10.
The second incident related to the plaintiff’s duty at PJCC to arrange monthly “incentive
activit[ies],” such as lunches, dinners, laser tag, or movies, for student volunteers who helped in
cleaning the recreation center. Compl. ¶¶ 9–10; Proposed Am. Compl. ¶¶ 15-16. According to
the plaintiff, this was “a practice for the last four years.” Compl. ¶ 9; Proposed Am. Compl. ¶
15. To arrange payment for these incentive activities, the plaintiff submitted purchase orders to
Deepa Gorge, Administrative Assistant to Rowe, whose approval was required for each purchase
order she submitted. Compl. ¶ 8; Proposed Am. Compl. ¶ 14.
“[W]eeks prior” to September’s incentive activity, which was dinner at the Cheesecake
Factory, the plaintiff submitted a purchase order to Gorge. Compl. ¶ 11; Proposed Am. Compl.
¶ 17. In addition “an email was forwarded” to Rowe, and he approved the activity. Compl. ¶ 12;
Proposed Am. Compl. ¶ 18. On September 12, 2014, the students were informed of the dinner,
and the plaintiff requested the funds for the dinner from Gorge. Compl. ¶ 13; Proposed Am.
Compl. ¶ 19. At that time, Gorge “shared that she had forgotten to complete the purchase order
for the funds.” Compl. ¶ 13; Proposed Am. Compl. ¶ 19 (stating “the purchase order for the
funds were never completed”). The plaintiff explains she “was disturbed,” noting that the
cafeteria was closed and thus the students would have no food unless the plaintiff purchased it
for them, and “because of policy, she would not be reimbursed.” Compl. ¶ 14; Proposed Am.
Compl. ¶ 20.
The plaintiff subsequently discussed the situation with Rowe in his office. Compl. ¶¶ 15-
16; Proposed Am. Compl. ¶ 22 (plaintiff “protested against the lack of funds”). During this
3
conversation, which took place before two other people, Rowe “used the word ‘Hell’ and hit the
desk with his fist.” Compl. ¶¶ 15–16. He accused the plaintiff of “ordering food without
permission.” Id. ¶ 16. While walking out of Rowe’s office, and not in the presence of Rowe, the
plaintiff, “to herself, said this is some ‘BS.’” Id. ¶ 17. Sometime later, in response to a question
by Grace Jibril, Human Resources Manager, the plaintiff denied that she had “curse[d] at her
supervisor,” and Rowe agreed that “no profanity had been used.” Id. ¶¶ 19–20. Nevertheless,
the plaintiff was put on administrative leave for three weeks starting on September 15, 2014, and
was subsequently terminated on October 3, 2014, on the ground that she had violated Chugach
Alaska Corporation Policies and Procedures, Policy B-2, Section: 6. Id. ¶¶ 21–22. 3
Thirteen months after her termination, the plaintiff filed a complaint, on November 20,
2015, against the defendant in the Superior Court of the District of Columbia, alleging wrongful
termination and emotional distress on the basis of the reimbursement incident. Id. at 1, ¶ 23–24.
After removing the case to this Court, Notice of Removal, ECF No. 1, the defendant moved to
dismiss the complaint, Def.’s Mot. As part of her opposition to dismissal, the plaintiff moved to
amend her original complaint, Pl.’s Mot. Amend., which motion the defendant opposes as futile.
Def.’s Mem. Opp’n Pl.’s Mot. Am. Compl. (“Def.’s Opp’n”) at 2–3, 5, ECF No. 11. The
defendant’s motion to dismiss and the plaintiff’s motion to amend are now ripe for consideration.
II. LEGAL STANDARD
A. MOTION TO DISMISS
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the
“complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that
3
The Complaint quotes from the policy, which prohibits “‘[i]nsubordination, including failure to perform
assigned or required duties and failure to follow instructions received from supervisor(s)’ [and] ‘[r]ude and
discourteous behavior toward shareholders, customers, or other employees including the use of foul language,
vulgarity or profanity.’” Compl. ¶ 21.
4
is plausible on its face.” Wood v. Moss, 134 S. Ct. 2056, 2067 (2014) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)). A claim is facially plausible when the plaintiff pleads factual content
that is more than “‘merely consistent with’ a defendant’s liability,” but “allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.
at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556–57 (2007)); see also Rudder v.
Williams, 666 F.3d 790, 794 (D.C. Cir. 2012). Although “detailed factual allegations” are not
required to withstand a Rule 12(b)(6) motion, a complaint must offer “more than labels and
conclusions” or a “formulaic recitation of the elements of a cause of action” to provide
“grounds” of “entitle[ment] to relief,” Twombly, 550 U.S. at 555, and “nudge[] [the] claims
across the line from conceivable to plausible,” id. at 570. Thus, “a complaint [does not] suffice
if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 557).
In considering a motion to dismiss for failure to plead a claim on which relief can be
granted, the court must consider the complaint in its entirety, accepting all factual allegations in
the complaint as true, even if doubtful in fact. Twombly, 550 U.S. at 555; Sissel v. U.S. Dep’t of
Health & Human Servs., 760 F.3d 1, 4 (D.C. Cir. 2014), cert. denied sub nom. Sissel v. Dep’t of
Health & Human Servs., 136 S. Ct. 925 (2016) (in considering a Rule 12(b)(6) motion, the
“court assumes the truth of all well-pleaded factual allegations in the complaint and construes
reasonable inferences from those allegations in the plaintiff’s favor, but is not required to accept
the plaintiff’s legal conclusions as correct” (internal citations omitted)). In addition, courts may
“ordinarily examine” other sources “when ruling on Rule 12(b)(6) motions to dismiss, in
particular, documents incorporated into the complaint by reference, and matters of which a court
5
may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322
(2007); see also English v. District of Columbia, 717 F.3d 968, 971 (D.C. Cir. 2013).
B. MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT
“[T]he grant or denial of leave to amend is committed to a district court’s discretion.”
Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996). While leave to amend a complaint
should be freely granted when justice so requires, see Fed R. Civ. P. 15(a)(2), the Court may
deny a motion to amend if such amendment would be futile, Foman v. Davis, 371 U.S. 178, 182
(1962); Hettinga v. United States, 677 F.3d 471, 480 (D.C. Cir. 2012) (citing James Madison
Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996)). Where a plaintiff “‘could not
allege additional facts that would cure the deficiencies in her complaint,’” a District Court acts
within its discretion in denying leave to amend the complaint as futile. Rollins v. Wackenhut
Servs., Inc., 703 F.3d 122, 131 (D.C. Cir. 2012) (quoting Belizan v. Hershon, 434 F.3d 579, 584
(D.C. Cir. 2006)).
III. DISCUSSION
The defendant asserts that the complaint must be dismissed because it fails to state a
claim and that the plaintiff’s proposed amendment still fails, despite the additional factual
allegations, to cure the deficiencies. The defendant is correct.
The defendant advanced several possible grounds for dismissal of the original Complaint,
arguing (1) that the plaintiff incorrectly identified her employer, the organization that operates
the PJCC, as Chugach Alaska Corporation (“CAC”), while in fact CAC’s subsidiary, Chugach
Government Services, Inc. (“CGSI”), is the entity that operates PJCC, Def.’s Mem. at 4–5; (2)
that the plaintiff failed to allege facts that could support a claim for wrongful termination, noting
that the plaintiff has not rebutted the presumption that her employment was “at will,” and thus
6
could be terminated by her employer at any time for any reason, unless doing so violated public
policy, Def.’s Mem. at 6–7; and (3) that the plaintiff failed to allege facts to support her claim of
emotional distress, Def.’s Mem. at 7–9. 4
In her Motion to Amend Complaint and Opposition to Defendant’s Motion to Dismiss the
Complaint, the plaintiff has not disputed any of the defendant’s contentions, opting instead to
provide an amended complaint attempting to remedy the alleged defects by “nam[ing] the proper
Defendant” and “set[ting] forth facts to support her claims.” Pl.’s Mem. Supp. Mot. Amend. at
4, ECF No. 10, as well as simply eliminating the challenged claim for infliction of emotional
distress. 5 While acknowledging that the Proposed Amended Complaint now names the correct
defendant and deletes the emotional distress claim, obviating its objections to those alleged
deficiencies of the Complaint, the defendant contends that the plaintiff’s amended wrongful
termination claim would nevertheless not withstand a renewed motion to dismiss. 6 Def.’s Opp’n
at 2.
4
The plaintiff provides absolutely no response to the defendant’s arguments or any explanation, other than
changing the named defendant, for how the amended complaint suffices to address the deficiencies pointed out in
the defendant’s motion to dismiss and in the defendant’s opposition to the plaintiff’s motion to file an amended
pleading, to which opposition the plaintiff filed no reply. Thus, the defendant’s motions to dismiss the Complaint
and deny the plaintiff’s motion to amend may be granted as conceded. See Texas v. United States, 798 F.3d 1108,
1110 (D.C. Cir. 2015) (“[I]f a party files an opposition to a motion and therein addresses only some of the movant's
arguments, the court may treat the unaddressed arguments as conceded.”) (quoting Wannall v. Honeywell, Inc., 775
F.3d 425, 428 (D.C. Cir. 2014)).
5
In explaining why the proposed amendment would not prejudice the defendant, the plaintiff makes puzzling
reference to the “addition of an equal protection claim against DOE and Messrs. Chu and Seward, as well as a due
process claim against DOE and the official capacity defendants, does not substantially change the theory on which
the case has been proceeding.” Pl.’s Mem. Supp. Mot. Amend at 7. The defendants and equal protection and due
process claims referenced in this portion of the plaintiff’s motion appear to have nothing to do with the instant case.
6
The defendant’s counsel has averred that “[f]or purposes of this Motion, undersigned counsel also
represents Chugach Government Services, Inc. to the extent the Court desires to know the position of the proposed
new defendant.” Def.’s Opp’n at 2 n.2.
7
Noting that the plaintiff has alleged no facts tending to show she was not an at-will
employee, the defendant asserts that the plaintiff has failed to plead facts placing that claim
“within the ‘very narrow’ public policy exception to the at-will doctrine.” Def.’s Opp’n at 4.
Under District of Columbia law, it is presumed “that a hiring not accompanied by an expression
of a specific term of duration creates an employment relationship terminable at will by either
party at any time.” Nickens v. Labor Agency of Metro. Wash., 600 A.2d 813, 816 (D.C. 1991).
The plaintiff has put forth no allegations to rebut that presumption, and therefore the at-will
employment doctrine applies to this case. 7 “‘It has long been settled in the District of Columbia
that an employer may discharge an at-will employee at any time and for any reason, or for no
reason at all.’” McCormick v. Dist. of Columbia, 752 F.3d 980, 987 (D.C. Cir. 2014) (quoting
Kassem v. Wash. Hosp. Ctr., 513 F.3d 251, 254 (D.C. Cir. 2008)). Thus, to plausibly claim
wrongful termination, the plaintiff must allege facts placing her claim within an exception to the
at-will employment doctrine.
“[T]he District of Columbia Court of Appeals [has] recognized a ‘very narrow’ public
policy exception to the at-will employment doctrine: ‘a discharged at-will employee may sue his
or her former employer for wrongful discharge when the sole reason for the discharge is the
employee’s refusal to violate the law, as expressed in a statute or municipal regulation.’”
Kassem, 513 F.3d at 254 (quoting Adams v. George W. Cochran & Co., 597 A.2d 28, 34 (D.C.
7
“This presumption can be rebutted by evidence that the parties intended the employment to be . . . subject
to specific preconditions before termination.” Nickens, 600 A.2d at 816. The plaintiff’s original complaint alleged
wrongful termination on the ground that her termination for the reimbursement incident, described supra, was not
consistent with the “Chugach Alaska Corporation Policies and Procedures” forming the basis of her termination.
Compl. ¶¶ 21, 23. The Proposed Amended Complaint makes no mention of these policies and procedures, though it
provides that her termination was “not in accordance with existing employment agreement.” Proposed Am. Compl.
¶ 26. It is thus unclear if the plaintiff presses a wrongful termination claim on the basis of either incident separate
from a claim under the public policy exception. In any event, the plaintiff offers no support in either the original or
Proposed Amended Complaint for the proposition that the company policies and procedures constituted an
employment contract such that the at-will employment doctrine does not apply.
8
1991)). That court has “specifically declined to follow numerous other state courts that have
adopted more expansive public policy exceptions,” requiring instead that “the public policy in
question [be] ‘solidly’ based in a specific statute or regulation or [that] a constitutional provision
‘concretely’ appl[y] to the employer’s conduct.” Leyden v. Am. Accreditation Healthcare
Comm’n, 83 F. Supp. 3d 241, 249 (D.D.C. 2015) (quoting Carl v. Children’s Hosp., 702 A.2d
159, 161 (D.C. 1997) (en banc)). Put another way, “lest the exception come to swallow the
rule,” the District of Columbia Court of Appeals has urged that such exceptions be recognized
“only if they ‘reflect a clear mandate of public policy . . . “officially declared” in a statute or . . .
regulation, or in the Constitution,’” and demonstrate “a ‘close fit between the policy thus
declared and the conduct at issue in the allegedly wrongful termination.’” Id.; see also Harris v.
D.C. Water & Sewer Auth., No. 12-1453 (JEB), 2016 WL 3659883, at *4 (D.D.C. July 1, 2016);
Peterson v. AT&T Mobility Servs., 134 F. Supp. 3d 112, 122 (D.D.C. 2015) (citing Hoff v. Rein,
110 A.3d 561, 564 (D.C. 2015)).
The Complaint and Proposed Amended Complaint are silent as to whether her
employer’s actions in the reimbursement incident allegedly violated any specific statute,
regulation, or constitutional provision to bring this conduct within the “‘very narrow’ public
policy exception” allowing her wrongful termination claim to go forward on this basis. Kassem,
513 F.3d at 254 (quoting Adams, 597 A.2d at 34). In the Proposed Amended Complaint, the
plaintiff also alleges facts suggesting that she was terminated for protesting the inappropriate use
of funds on the part of PJCC. Specifically, she contends that the PJCC’s use of funds from the
recreation budget to purchase anniversary banners was an “illegal transfer[]” under the
government’s policy reflected in “OBM [sic] Circular 136,” which prohibits “transfer[ring] funds
9
from one budget one category to another without getting approval from the DOL Regional
Office.” Proposed Am. Compl. ¶¶ 9, 12.
These new allegations fail to salvage the plaintiff’s wrongful termination claim for two
reasons. First, the cited circular, OMB Circular No. A-136, Financial Reporting Requirements,
is not a statute or a regulation, but simply a guide for federal agencies, intended to “establish[] a
central point of reference for all Federal financial reporting guidance for Executive Branch
departments, agencies, and entities required to submit audited financial statements, interim
financial statements, and Performance and Accountability Reports (PAR)” pursuant to various
statutes. OMB Circular A-136, Financial Reporting Requirements, at 1 (Sept. 18, 2014).
Second, section I.3 of that document clarifies that it applies “to each Executive Branch
department, agency, and other entity . . . that is required to prepare audited financial statements”
under the Chief Financial Officers Act, the Government Management and Reform Act, or the
Accountability for Tax Dollars Act. Id. at 2. The Proposed Amended Complaint does not
contain facts alleging that the PJCC qualifies as an entity required to prepare financial statements
under these statutes such that the circular even applies to it. Therefore, the plaintiff has alleged
neither that the circular would constitute “public policy” for the purposes of the exception, nor
that the activity against which she protested was in contravention of the guidance provided in
this circular. See Leyden, 83 F. Supp. 3d at 249 (“The common denominator in [cases applying
the public policy exception to ‘alleged retaliatory discharges’] is the existence of specific laws or
regulations that clearly reflect a policy prohibiting the activity about which the employee
complained . . . .”). Accordingly, the Proposed Amended Complaint fails to state a claim under
10
the narrow public policy exception to the District of Columbia’s at-will employment doctrine,
and thus the proposed amendment would be futile. 8
IV. CONCLUSION
For the foregoing reasons, the defendant’s motion to dismiss, ECF No. 7, is granted, and
the plaintiff’s motion to amend, ECF No. 10, is denied. The Clerk of the United States District
Court for the District of Columbia is directed to close this case.
An Order consistent with this Memorandum Opinion will be issued contemporaneously.
Digitally signed by Hon. Beryl A.
Howell
DN: cn=Hon. Beryl A. Howell,
Date: September 28, 2016 o=U.S. District Court for the District
of Columbia, ou=Chief Judge,
email=Howell_Chambers@dcd.usc
ourts.gov, c=US
Date: 2016.09.28 17:09:23 -04'00'
___________________________
BERYL A. HOWELL
Chief Judge
8
The defendant contends alternatively that the plaintiff’s motion to amend should be stricken or denied
because it “does not comply with the spirit of Local Civil Rule 7(m),” Def.’s Opp’n at 8, which requires that
“[b]efore filing any nondispositive motion in a civil action, counsel shall discuss the anticipated motion with
opposing counsel in a good-faith effort to determine whether there is any opposition to the relief sought and, if there
is, to narrow the areas of disagreement.” Local Civil Rule 7(m). The defendant notes that the plaintiff’s counsel
“contacted [the defendant’s counsel] on a Saturday only moments before filing” the motion to amend. Def.’s Opp’n
at 8. The plaintiff, however, combined the motion to amend with her opposition to the defendant’s motion to
dismiss; for this reason, as well as judicial efficiency, the motion has been considered, and having determined it
should be denied as futile, the defendant’s argument that it be denied for failure to comply with Rule 7(m) need not
be reached.
11