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MACNABB v. MACCARTEE

October 21, 1992

MARY ALICE MacNABB, Plaintiff,
v.
CARL C. MacCARTEE, JR., MD., STEPHEN S. HASS, M.D., and RICHARD M. GROSSMAN, M.D., P.A., Defendant.



The opinion of the court was delivered by: JOYCE HENS GREEN

 On March 2, 1992, plaintiff Mary Alice MacNabb ("MacNabb") initiated this action. MacNabb's second amended complaint filed June 22, 1992 named as defendant, Stephen S. Hass, M.D., Carl C. MacCartee, M.D., and Richard M. Grossman, M.D., P.A., a Maryland Corporation. The second amended complaint alleged that defendant terminated MacNabb's employment in its District of Columbia office in violation of the District of Columbia Human Rights Act, D.C. Code §§ 1-2501 et seq. and in violation of the common law of the District of Columbia.

 Presently pending is defendant's motion to dismiss Count Five of the second amended complaint. In its motion, defendant contends that plaintiff's claim of unlawful termination fails to state a claim for which relief can be granted under the law of the District of Columbia. For the following reasons, defendants' motion is denied.

 I. BACKGROUND

 After replacing MacNabb in November 1991, MacNabb claims that Gibson repeatedly inquired about the father of the child she was carrying and the father's plans with regard to the expected child. MacNabb contends that Gibson made repeated "discriminatory and denigrating" public comments about MacNabb's pregnancy, including the suggestion that MacNabb have an abortion. MacNabb further contends that despite her request that her pregnancy be kept private, Gibson ordered MacNabb to "stand up and show everyone how big you're getting."

 On December 20, 1991, defendant terminated MacNabb without notice. *fn1" The defendant told MacNabb that she was terminated because she was short with patients. According to plaintiff, however, plaintiff performed her job duties in an acceptable manner, receiving no negative performance evaluations. MacNabb claims that the reason given to her was a pretext for terminating her because of her sex, as exemplified by her pregnant condition and because of her family responsibilities, including her refusal to have an abortion. As a result, MacNabb contends that her termination was unlawful, in violation of public policy, as articulated in the District of Columbia Human Rights Act, Title VII, and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

 II. DISCUSSION

 In viewing a motion to dismiss, "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80 , 78 S. Ct. 99 (1957). The factual allegations of the complaint must be presumed true and liberally construed in favor of plaintiff. Shear v. National Rifle Association, 196 U.S. App. D.C. 344, 606 F.2d 1251, 1253 (D.C. Cir. 1979); 5A C. Wright & A. Miller, Federal Practice and Procedure, § 1357, p. 304 (1990). The plaintiff is entitled to all favorable inferences which may be drawn from those allegations. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90 , 94 S. Ct. 1683 (1974).

 Defendant has moved to dismiss plaintiff's unlawful termination claim as failing to state a claim for which relief can be granted under District of Columbia law. First, defendant argues that because plaintiff had no employment contract with defendant, plaintiff is an at-will employee, subject to termination at any time and for any reason or no reason. Second, defendant maintains that the D.C. Court of Appeals has recognized only one exception to the rule that at-will employees are subject to termination for any reason, and plaintiff simply does not fall within that narrow exception.

 Defendant's broad statement that only one exception exists stems from its narrow interpretation of Adams v. George W. Cochran & Co. In Adams, the Court of Appeals was confronted with an employee terminated for refusing to violate a state law. Id. at 29-30. In this context, the court discussed "public policy" exceptions in general, as well as discussing the case at hand. Because the Adams court was presented with an entirely different factual scenario than that in the instant case, Adams does not control the outcome of this case. However, Adams' discussion of the public policy exception and prior D.C. Court of Appeals caselaw is helpful.

 The Adams court noted that although public policy exceptions have been urged upon the court, the court had heretofore not recognized any such exceptions. As illustration, the court discussed Sorrells v. Garfinckel's, Brooks Bros., Miller & Rhoads, Inc., 565 A.2d 285 (D.C. 1985). The Sorrells analysis of the public policy exception claimed in that case also provides insight relevant to the instant case. Although, in Sorrells, the court did not find the existence of a public policy exception, the decision was grounded firmly in the facts as established in that case. The court did not hold that it would not carve out an exception to the at-will employment doctrine in any case involving alleged breach of a statutorily declared public policy. Instead, the Court stated that "even if we were disposed to carve out an exception to the at-will employment doctrine, no "'statutorily declared public policy' supports Sorrells' claim of wrongful discharge in this case." Sorrells, 565 A.2d at 289 (emphasis added).

 The Sorrells decision was based upon appellant's invocation of three non-statutorily based policies as well as upon one statutorily based claim. In addressing the non-statutorily based policies, the Sorrells court stated that appellant should not be permitted to sue her employer because the employer has "deep pockets," or because a discharged employee is a burden to society, or because of possible ...


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