United States District Court for the District of Columbia
March 30, 2004.
SCOTT MACINTOSH Plaintiff,
BUILDING OWNERS AND MANAGERS ASSOCIATION INTERNATIONAL; HENRY CHAMBERLAIN; and RON BURTON Defendants
The opinion of the court was delivered by: EMMET SULLIVAN, District Judge
Plaintiff Scott Macintosh ("Macintosh"), a Canadian citizen, brings
claims against his former employer alleging violations of the D.C. Human
Rights Act, violations of 42 U.S.C. § 1981, wrongful termination, and
breach of contract. Defendants are Building Owners and Managers
Association International ("BOMA"), an Illinois non-profit corporation
authorized to do business in the District of Columbia, Henry Chamberlain
("Chamberlain"), Executive Director of BOMA, and Ron Burton ("Burton"),
Vice President of Advocacy and Research for BOMA. The claims against
Chamberlain and Burton are in their individual capacity.
II. Factual Background
Plaintiff was employed by BOMA from January 1999 to October 2002
pursuant to a TN visa, allowing plaintiff, a non-citizen, to work in the
United States. While employed at BOMA, plaintiff, who was Director of
Research, received two performance ratings of "very good" and one
performance rating of "outstanding."
In January 2002, plaintiff learned that BOMA had failed to make its
December 2001 401-K payment. Plaintiff brought this information to the
attention of Defendant Ron Burton. Burton spoke with Ellen Hobby, Vice
President of Finance and Administration, who informed Burton that BOMA
had until the end of January to make its payment. Plaintiff, believing
Hobby to be incorrect, found the Labor Department Regulation indicating
that the payment should have been made the previous month and showed the
regulation to Burton. In response, Burton sent an email to several
employees explaining why the payments had not been made and asking that
employees not spend their time listening to office gossip.
In February 2002, plaintiff sent Dora Blacknall, an African-American
employee under his supervision, to Hobby to collect a paycheck for
Sparkle Mitchell, another female African-American employee who had not
been paid in a timely fashion under the Wage and Hour Laws. When she
returned, Blacknall appeared upset. Plaintiff believes that Blacknall had
been mistreated on account
of her race. Plaintiff claims that no African-American employee in
BOMA's Washington office has reached a rank higher than that of manager.
He maintains that discrimination on the basis of race and gender were
"hallmarks" of BOMA's employment practices.
Plaintiff sent Burton a written note complaining about the incident.
Burton purportedly responded by accusing plaintiff of asserting that BOMA
had committed improprieties in performing its contract with the EPA.
In late April 2002, Burton and Hobby approached plaintiff in his office
and pressured him to fraudulently inflate BOMA's expenses under a
government contract with the EPA. Plaintiff refused to comply with their
request. On May 6, 2002, Defendant Henry Chamberlain fired plaintiff.
BOMA's official statement indicated that plaintiff had resigned.
Plaintiff has alleged that the actions of Defendants BOMA, Chamberlain,
and Burton violate both 42 U.S.C. § 1981 and the D.C. Human Rights
Act, D.C. Code § 2-1402 et seq. (2001) (hereinafter "DCHRA")
and constitute wrongful termination as well as breach of an employment
BOMA and the individual defendants have each file a Motion to Dismiss
the complaint pursuant to Federal Rule of Civil Procedure Rule 12(b)(6).
II. Standard of Review
When considering a Motion to Dismiss, the Court construes the facts in
the complaint as true and construes all reasonable inferences in the
light most favorable to the plaintiff. See Swierkiewicz v. Sorema,
534 U.S. 506, 508 (2002). A Motion to Dismiss is granted and the
complaint dismissed only if no relief could be granted on those facts.
See Sparrow v. United Air Lines Inc., 216 F.3d 1111, 1114 (D.C. Cir.
2002) (stating that complaints "need not plead law or match facts to
every element of a legal theory") (quoting Krieger v. Fadely, 211 F.3d 134,
136 (D.C. Cir. 2000)).
The Court will address the federal claims first, and then the local
claims, since the interpretation of the federal claims will impact the
interpretation of the local claims.
A. Plaintiff's Section 1981 Claims
1. Section 1981 Claims Against BOMA
Plaintiff alleges that he was fired for protesting the treatment of
female African-American employees at BOMA, a "protected activity" under
§ 1981. Compl. at ¶ 25.
BOMA's principal contention is that a plaintiff in a § 1981 action
must be a member of a racial minority. However, courts have roundly
rejected defendant's position. In DeMatteis v.
Eastman Kodak Co., a white plaintiff brought suit under § 1981,
alleging that he had been forced into early retirement after he sold his
house, which was located in an area inhabited by many Kodak employees, to
an African-American. 511 F.2d 306 (2d Cir. 1975). Relying on a Supreme
Court case in which the Court had held that a non-minority who attempts
to vindicate the right of a member of a minority group has standing to
sue under § 1982, the Second Circuit reversed the district court's
grant of summary judgment in favor of the defendant. Id. at 312 (citing
Sullivan v. Little Hunting Park, 396 U.S. 229, 237 (1969)). Two other
circuits have reached the same conclusion. See Alizadeh v. Safeway
Stores, Inc., 802 F.2d 111, 114 (5th Cir. 1986) (holding that the
Caucasian wife of an Iranian man, who alleged that she had been fired
because of the race of her husband, had a cause of action under §
1981); Winston v. Lear-Siegler, Inc., 50 F.2d 1266, 1270 (6th Cir. 1977)
(holding that a white employee had standing under § 1981 to sue
former employer for discharging him in alleged retaliation for the
employee's protesting the supposedly discriminatory firing of an
Although the D.C. Circuit has not directly addressed the question of
whether a non-minority plaintiff has standing to sue under § 1981,
Magistrate Judge Facciola confronted the issue in Glymph v. District
of Columbia. 211 F. Supp.2d 152 (D.D.C.
2002). In Glymph, the district court had already rejected the defendants'
partial Motion to Dismiss but, noting that the briefs were inadequate,
referred the question of whether the plaintiff's race prevented her from
stating a valid claim to Magistrate Judge Facciola. Citing DeMatteis and
its progeny with approval, Magistrate Judge Facciola concluded that the
best approach to allegations of racially motivated retaliatory action was
"that the race-based element must lie in the protected activity, not in
the race of the plaintiff." Id. at 154.
The Court sees no reason to question Magistrate Judge Facciola's
reasoning, which is in accord with the three circuits that have addressed
this precise issue. Because § 1981 appears not to preclude suit by a
non-minority who attempts to vindicate the rights of a member of a racial
minority, plaintiff has alleged enough in his complaint to survive a
Motion to Dismiss. Therefore, Defendant BOMA's Motion to Dismiss Count II
of the complaint is denied.
2. Section 1981 Claims against Chamberlain and Burton
Defendants Chamberlain and Burton argue, as did BOMA, that plaintiff's
§ 1981 claims fail as a matter of law because plaintiff is not a
member of a racial minority. Having disposed on that argument previously,
the Court turns to the question of whether the individual defendants can
be sued under § 1981 in their individual capacities.
An examination of recent case law reveals that defendants in a §
1981 suit can be held liable in their individual capacities. See Sheppard
v. Dickstein, Shapiro, Morin & Oshinsky, 59 F. Supp.2d 27, 33
(D.D.C. 1999); see also Al-Khazraji v. Saint Francis College, 784 F.2d 505,
518 (3d Cir. 1986) (holding that individuals personally involved in the
discriminatory action may be held liable); Santiago v. City of Vineland,
107 F. Supp.2d 512, 541 (D.N.J. 2000) (citing Sheppard and Al-Khazraji in
holding defendants liable in their individual capacities). In Sheppard,
the court noted that Title VII was intended "to address discriminatory
conduct in the workplace only," that the language of Title VII covered
only employers, and that the reach of § 1981 was clearly much
broader. The court thus held that individual supervisors could be sued
under § 1981, even if they could not be sued under Title VII. 59 F.
Supp.2d at 33.
Even if, as the Third Circuit observed in Al-Khazraji, defendants must
have "authorized, directed, or participated in the alleged discriminatory
conduct" in order to be liable in their individual capacities, plaintiff
has alleged enough facts in his complaint to survive a Motion to Dismiss
for failure to state a claim. 784 F.2d at 518. Construing all inferences
in favor of plaintiff, the Court denies Defendants Chamberlain and
Burton's Motion to Dismiss Count II.
B. Plaintiff's District of Columbia Human Rights Act Claims
Courts apply federal constructions of Title VII and § 1981 to
claims brought under the D.C. Human Rights Act, D.C. Code § 2-1402.11
et seq. (2001). See, e.g., Sparrow v. United Airlines, 216 F.3d 1111,
1114 (B.C. Cir. 2000) (holding that, when asserting a claim under the
DCHRA, the same analysis applies as in discrimination cases brought under
Title VII and § 1981); Carpenter v. Federal Nat. Mortg. Ass'n,
165 F.3d 69, 72 (B.C. Cir. 1999) (finding that B.C. courts accept federal
constructions of Title VII in handling claims under the DCHRA); Hunter
v. Ark Restaurants Corporation, 3 F. Supp.2d 9, 14 (D.D.C. 1998) (noting
that the same standards apply to cases brought under the DCHRA and §
Because the DCHRA looks to Title VII for its construction, the
individual defendants claim that plaintiff cannot recover against them in
their individual capacities. See Gary v. Long, 59 F.3d 1391, 1399 (D.C.
Cir.), cert. denied, 516 U.S. 1011 (1995) (holding that, "while a
supervisory employee may be joined as a party defendant in a Title VII
action, that employee must be viewed as being sued in his capacity as the
agent of the employer, who is alone liable for a violation of Title
VII."). Plaintiff, in contrast, relies on a B.C. Court of Appeals case
that held individual partners in a law firm liable under the DCHRA. See
Wallace v. Skadden, Arps, Slate, Meagher & Flom,
715 A.2d 873, 888 (D.C. 1997). The Wallace court, according to a
subsequent opinion from the district court, relied on the absence of the
word "employer" in the DCHRA to distinguish persons liable under DCHRA
from those liable under Title VII. See Hunter v. Ark Restaurants
Corporation, 3 F. Supp.2d 9, 16-17 (D.D.C. 1998) (Harris, J.). While the
Wallace court found this distinction dispositive, Judge Harris discovered
that the exclusion of the term "employer" was the result of a printing
error. Id. Therefore, Judge Harris found that his discovery undermined
the validity of Wallace. Id. The current version of the DCHRA does
include the limitation "by an employer." D.C. Code § 2-1402.11(a)(1)
Thus, the Court is left in a quandary. For violations of the DCHRA that
take their shape from Title VII, supervisors and managers cannot be held
liable in their individual capacities. But, for DCHRA violations that
take their shape from § 1981, these individuals can be held liable in
their individual capacities. Because the applicable legal standards found
in the federal constructions of § 1981 permit both suits by a person
who is not a member of a minority group and recovery against individual
supervisors and because this is not a claim on which no relief can be
granted, the Motions to Dismiss Count I filed by Defendants BOMA,
Chamberlain, and Burton are denied.
C. Plaintiff's Claim for Wrongful Termination
1. Wrongful Termination Against BOMA
In Count III of his complaint, plaintiff alleges that he was fired for
refusing to fraudulently inflate BOMA's expenses under a government
contract with the EPA. Compl. at ¶ 18.
In Adams v. George W. Cochran & Co., Inc., the D.C. Court of
Appeals held that an at-will employee could "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." 597 A.2d 28, 34 (D.C. 1991).
The Court of Appeals later expanded Adams in holding that courts could
find further public policy exceptions to the at-will presumption. Carl
v. Children's Hospital, 702 A.2d 159, 161 (B.C. 1997); see id. at 164
(Terry, J., concurring). In Carl, the concurring judges stated that a
plaintiff seeking to invoke the exception must point to "a clear mandate
of public policy" as embodied "in a statute or municipal regulation, or
in the Constitution." Id.
BOMA contends that plaintiff has not pointed to any specific statute or
regulation and has thus failed to establish a "clear mandate of public
policy" justifying an exception to the at-will doctrine. In response,
plaintiff identifies a federal statute, the False Claims Act,
31 U.S.C. § 3729(a) (2000), that criminalizes using false records or
documents to induce the
Government to pay a fraudulent claim. Because plaintiff alleged that BOMA
fired him for refusing to inflate BOMA's contractor expenses, plaintiff
has pointed to a clear mandate of public policy as expressed in a federal
criminal statute, satisfying both the broad standard announced in Carl
and the narrower rule from Adams. See Carl, 702 A.2d at 161-64.
BOMA further argues that plaintiff had to identify the specific statute
in his initial complaint in order to survive a Motion to Dismiss. See
Riggs v. Home Builders Institute, 203 F. Supp.2d 1, 11 (D.D.C. 2002).
Nowhere in its opinion, however, does the Riggs court hold that the
plaintiff must include citations to the statute or regulation on which she
relies in the initial complaint. On the contrary, the court discussed the
"liberal standard" of Federal Rules of Civil Procedure 8, emphasizing the
commitment to construe the pleadings so as to do "substantial justice."
Id. at 12 (citing Fed.R.Civ.P. 8(f)). Although the defendant correctly
observes that the plaintiffs in the exceptions recognized by the B.C.
Court of Appeals all cited particular statutes and regulations in their
complaints, the courts in those cases did not discuss how they would have
ruled had the plaintiff alleged only the underlying facts and not
provided a citation. Moreover, the Rule 12(b)(6) standard instructs that a
claim should be dismissed only if there are no facts that would entitle
the plaintiff to relief.
Because plaintiff does not need to cite the statute or regulation that
he believes embodies a clear mandate of public policy in his complaint
and because plaintiff has made the allegation that he was instructed to
inflate expenses under a government contract, which is clearly against
the law, the Court denies Defendant BOMA's Motion to Dismiss Count III.
2. Wrongful Termination Against Chamberlain and Burton
Plaintiff concedes that he cannot maintain a wrongful discharge claim
against Chamberlain and Burton. Pl.'s Opp. at 16. Instead, plaintiff
asks the Court to read this Count as alleging intentional interference
with contract relations. However, as plaintiff acknowledges, he can
maintain this new claim only if the Court finds that BOMA breached its
contract with him. Id. As will be discussed below, plaintiff did
not have an employment contract with BOMA.
Because the plaintiff was not under contract with BOMA at the time
Defendants Chamberlain and Burton allegedly tortiously interfered with
contract relations, the Court grants Defendants Chamberlain and Burton's
Motion to Dismiss Count III.
D. Plaintiff's Claim for Breach of Contract
Plaintiff's complaint alleges that he understood that he was to be
employed until at least October 6, 2002. Plaintiff implies
that an employment contract with BOMA was established because BOMA
listed the October 6, 2002 date in representations to the Immigration and
Naturalization Service ("INS") through which plaintiff obtained his visa.
Defendants rely on the well-established presumption in favor of at-will
employment and note that plaintiff has not indicated any document or
conversation in which the parties formed a contract.
Construing the facts in the light most favorable to plaintiff, the only
question is whether an employer's representations, when made in order to
secure an employment visa for a prospective employee, constitute a
contract. In a factually similar case, the Seventh Circuit held that an
employer's petition to the INS representing its intention to employ
someone for a fixed term constituted neither a contract nor a promise on
which one could reasonably rely. Geva v. Leo Burnett Co., Inc.,
931 F.2d 1220, 1223-24 (7th Cir. 1991). In Geva, the defendant company
submitted a petition to the INS describing the plaintiff's
qualifications, the company's needs, as well as the salary and benefits
to be awarded and the anticipated duration of the employment. Id. at
1222. The court rejected the plaintiff's attempts to show that an oral
contract had existed. Id. at 1223-24; see also Arboireau v.
Adidas-Salomon AG, 347 F.3d 1158, 1163 (9th Cir. 2003) (rejecting the
contention that employee's e-mailed acceptance of telephone offer
of fixed-term employment formed a contract).
Because there is a strong presumption in favor of at-will employment
and because an employer's representations to the INS during the
solicitation of a visa, standing alone, do not comprise an enforceable
contract, the Court grants defendants' Motion to Dismiss Count IV.
Defendants make a persuasive case for dismissing all counts of the
complaint, and plaintiff does little to rebut defendants' legal
arguments. However, the Court's independent research has answered many of
the doubts about the soundness of plaintiff's claims, at least to the
point where, when construing all facts in favor of plaintiff, some counts
are sufficient to survive defendants' Rule 12(b)(6) Motion to Dismiss.
Pursuant to the Order accompanying this Memorandum Opinion, defendants'
Motion to Dismiss is GRANTED in part and DENIED in part.
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