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March 19, 1999


The opinion of the court was delivered by: Stanley S. Harris, District Judge.


This matter is before the Court on two motions to dismiss or, in the alternative, for summary judgment, one filed by the National Coalition for the Homeless ("NCH"), the NCH Board of Directors ("NCH Board"), Mary Ann Gleason, Bill Faith, Anita Beaty, and Gloria Marti (collectively "the NCH defendants"), and one filed by the United States and the United States Department of Housing and Urban Development ("HUD") (collectively "the federal defendants").*fn1 Upon consideration of the foregoing motions and the entire record, the Court grants the federal defendants' motion to dismiss or, in the alternative, for summary judgment, with respect to all but plaintiff's contract claims, on which the Court defers judgment pending plaintiff's decision to amend her complaint. The Court also grants in part and denies in part the NCH defendants' motion to dismiss or, in the alternative, for summary judgment. "Findings of fact and conclusions of law are unnecessary on decisions of motions under Rule 12 or 56. . . ." Fed.R.Civ.P. 52(a); Summers v. Department of Justice, 140 F.3d 1077, 1079-80 (D.C. Cir. 1998). Nonetheless, the Court sets forth its reasoning.


Plaintiff Peggy Brug, a black female, worked for the NCH from April 15, 1996, until May 22, 1997, as the Project Manager for Technical Assistance Services. She alleges that during her employment she was subjected to a racially hostile working environment and that, when she complained of the racial bias against her, she was fired in retaliation. Moreover, plaintiff alleges that her discharge violated the contract that existed between her and the NCH. Specifically, plaintiff alleges that defendant Gleason, the Executive Director of the NCH, made disparaging remarks about blacks, treated plaintiff differently from white employees in the areas of discipline, evaluation, and termination, and ultimately fired plaintiff for retaliatory reasons and without following the proper procedures.

Also named as defendants are HUD and the United States.*fn2 HUD allegedly funds and regulates the Technical Assistance Services Program ("TASP"). Plaintiff alleges that the HUD Agreement and the HUD Technical Assistance Delivery Plan ("TADP") controlled her employment with the NCH and, accordingly, that HUD and the United States are responsible for her hostile working environment and discriminatory discharge.

Moreover, plaintiff alleges that the NCH Board of Directors and defendants Faith, Beaty, and Marti tortiously breached the implied covenant of good faith and fair dealing by failing to evaluate Gleason's performance and by violating the impartiality and fairness provisions of the NCH grievance process. She further contends that all of the named defendants negligently failed to properly discharge their responsibilities related to her employment. Finally, plaintiff alleges that defendants Gleason and Faith intentionally released defamatory information about plaintiff's work and professional capabilities.


A motion to dismiss should not be granted "unless plaintiff[ ] can prove no set of facts in support of [her] claim which would entitle [her] to relief." Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The complaint is construed liberally in the plaintiff's favor, and plaintiff is given the benefit of all inferences that can be derived from the facts alleged. EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997); Tele-Communications of Key West, Inc. v. United States, 757 F.2d 1330, 1334-35 (D.C. Cir. 1985). "However, the court need not accept inferences drawn by plaintiff[ ] if such inferences are unsupported by the facts set out in the complaint. Nor must the court accept legal conclusions cast in the form of factual allegations." Kowal, 16 F.3d at 1276.

In the event matters outside the pleadings are presented to and not excluded by the court, and the court assures itself that such treatment would be fair to both parties, a motion to dismiss may be treated as one for summary judgment and disposed of as provided in Federal Rule of Civil Procedure 56. Fed.R.Civ.P. 12(b); Americable Int'l Inc. v. Department of the Navy, 129 F.3d 1271, 1274 n. 5 (D.C. Cir. 1997); Tele-Communications, 757 F.2d at 1334. Summary judgment may be granted only if the pleadings and evidence "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In considering a summary judgment motion, all evidence and the inferences to be drawn from it must be considered in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Mere allegations in the pleadings, however, are not sufficient to defeat a summary judgment motion; if the moving party shows that there is an absence of evidence to support the nonmoving party's case, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).


I. Title VII

Plaintiff first alleges that she was subjected to a racially hostile work environment and terminated from her position at the NCH due to her race in violation of Title VII. Compl. ¶¶ 1, 13-23.

1. Federal Defendants

The federal defendants move to dismiss or, in the alternative, for summary judgment on plaintiff's Title VII claim against them, on the ground that she was not a federal employee.*fn3 According to the Court of Appeals:

  Title VII cover[s] only those individuals in a
  direct employment relationship with a government
  employer. Individuals who are independent
  contractors or those not directly employed by
  such an employer are unprotected. Status as an
  employee is therefore of crucial significance for
  those seeking to redress alleged discriminatory
  actions in federal employment.
  (1) the kind of occupation, with reference to
  whether the work usually is done under the
  direction of a supervisor or is done by a
  specialist without supervision; (2) the skill
  required in the particular occupation; (3)
  whether the "employer" or the individual in
  question furnishes the equipment used and the
  place of work; (4) the length of time during
  which the individual has worked; (5) the method
  of payment, whether by time or by the job; (6)
  the manner in which the work relationship is
  terminated . . .; (7) whether annual leave is
  afforded; (8) whether the work is an integral
  part of the business of the "employer"; (9)
  whether the worker accumulates retirement
  benefits; (10) whether the "employer" pays social
  security taxes; and (11) the intention of the

Spirides, 613 F.2d at 832; see also King, 895 F. Supp. at 838 & n. 9 (noting that, although the Spirides factors were developed in a context where there was only one possible employer, it also provides the proper framework for analyzing the status of a putative co-employer).

Based on the Spirides factors, the Court concludes that, as a matter of law, plaintiff cannot establish that she was a federal employee.*fn4 The NCH paid plaintiff's salary, and plaintiff's insurance, retirement benefits, and sick and annual leave were governed by NCH policies.*fn5 See Supplemental Declaration of Cynthia Hernan ¶¶ 6-7 [hereinafter "Hernan II Decl."]; Affidavit of Peggy Brug ¶ 9 (acknowledging that "NCH issued my paychecks"); see also id. ¶ 4 (acknowledging that the NCH Personnel Manual, along with the HUD agreement, established her employment agreement); id. Ex. A. (NCH Personnel Manual, which provides at p. 5 that "[a]ll permanent employees will be covered by NCH . . . with Social Security, unemployment insurance and workmen's compensation," and explains the leave policies at pp. 6-8). The NCH also regulated the grievance and resignation procedures applicable to plaintiff's employment. See Brug Aff. Ex. A. Plaintiff's direct supervisor was Gleason, an NCH employee, and plaintiff worked at the NCH office. Id. ¶¶ 5 & 9. HUD did not have the authority to hire or fire plaintiff under the HUD Agreement.*fn6 See Declaration of Cynthia Hernan [hereinafter "Hernan I Decl."] Ex. A (the HUD Agreement); see also id. ¶¶ 6-8 (confirming that HUD did not have any input into the decision to hire or fire plaintiff).*fn7

Nor has plaintiff proffered sufficient evidence to create a genuine issue of material fact with respect to the most important factor in the Spirides analysis: the control that the federal defendants had over plaintiff's work product. Defendants proffer evidence that, although Hernan "had work meetings" with plaintiff, no one at HUD assumed a supervisory role over her work product. Hernan I Decl. ¶ 7. In rebuttal, plaintiff claims that Hernan "directed, critiqued, defined and approved every major aspect of my work." Brug Aff. ¶ 7 (emphasis added). Although the Court acknowledges that, on a motion for summary judgment, conflicting evidence must be viewed in the light most favorable to the nonmoving party, the Court concludes that the evidence proffered by plaintiff is simply not sufficient to create a genuine ...

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