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MACINTOSH v. BUILDING OWNERS AND MANAGERS ASSOCIATION INT'L.

March 30, 2004.

SCOTT MACINTOSH Plaintiff,
v.
BUILDING OWNERS AND MANAGERS ASSOCIATION INTERNATIONAL; HENRY CHAMBERLAIN; and RON BURTON Defendants



The opinion of the court was delivered by: EMMET SULLIVAN, District Judge

MEMORANDUM OPINION

I. Introduction

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. Page 2

  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 Page 3 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 contract.

  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). Page 4

  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 ...


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