The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge
This matter comes before the Court on the defendants' Partial Motion to Dismiss the Plaintiff's Complaint. The defendants move to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure on the grounds that portions of the plaintiff's complaint fail to state a claim upon which relief can be granted. The defendants submitted a motion and memorandum in support of their position. The plaintiff submitted a memorandum in opposition, and the defendants subsequently filed a reply. Upon consideration of the parties' filings, the applicable law, the Federal Rules of Civil Procedure and the facts of this case, the Court finds that the defendants' motion to dismiss will be GRANTED.
The plaintiff filed this action against the defendants on March 26, 2004 in the Superior Court of the District of Columbia. The plaintiff, an employee of the defendants, seeks damages for alleged acts of: sex discrimination; retaliation; breach of contract; breach of implied covenant of good faith and fair dealing; infliction of emotional distress; and fraud, deceit, and misrepresentation. All of the plaintiff's claims surround her general accusation that she deserved a promotion to a higher position, but was denied said promotion because of her sex. On May 6, 2004, the defendants removed this action to this Court on the basis of diversity jurisdiction. The defendants now move to dismiss many of the plaintiff's claims. Specifically, the defendants moved to dismiss the following claims: (1) the plaintiff's breach of contract action averring there was no contract because the plaintiff was employed at-will; (2) the plaintiff's action for the breach of the implied covenant of good faith and fair dealing because the plaintiff was employed at-will; (3) the plaintiff's action for infliction of emotional distress because the plaintiff suffered no direct physical injury and the plaintiff was not present in the zone of physical danger, and because the plaintiff did not allege the requisite extreme or outrageous conduct; (4) the plaintiff's action for fraud, deceit, and misrepresentation because the plaintiff failed to allege the cause of action with the requisite particularity and because the alleged misrepresentations concern future events; and (5) the plaintiff's claims of sex discrimination and retaliation as against individual defendants, Holland, Hudson, Hyler, Schaab, Brennan, Slavin and Stover.
A. Dismissal Under Rule 12(b)(6)
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests whether a plaintiff has properly stated a claim for which relief can be granted. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982). The explicit language of Federal Rule of Civil Procedure 8(a)(2) provides that the complaint need only contain "a short and plain statement of the claim showing that the pleader is entitled to relief 47 (1957); U.S. ex. rel. Harris v. Bernad, 275 F. Supp. 2d 1, 5 (D.D.C. 2003). The complainant need not plead the elements of a prima facie case. Swierkiewicz v. Sormena N.A., 534 U.S. 506, 511-14 (2002) (holding that a complainant in an employment discrimination case need not plead the prima facie elements); see also Sparrow v. United Airlines, Inc., 216 F.3d 111, 1114 (D.C. Cir. 2000). In deciding a motion to dismiss under Rule 12(b)(6), the court is bound to consider all well-pleaded facts as true, and to draw all reasonable inferences in favor of the non-movant. Scheuer, 416 U.S. at 236; U.S. ex. rel. Harris, 275 F. Supp. 2d at 5. Therefore "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." Conely, 355 U.S. at 45-46.
The defendants move to dismiss the plaintiff's action for breach of contract because the plaintiff is an employee at-will according to the defendants' employee handbook. The plaintiff claims that various writings, and their provisions and representations, constitute a contract between the plaintiff and the defendant. (Pl.'s Compl. at ¶ 65).
In the District of Columbia, an employment relation of unspecified length is presumed to be employment at-will, and is thus terminable by either party at any time for any reason. Choate v. TRW, Inc., 14 F.3d 74, 76 (D.C. Cir. 1994) (citing Littel v. Evening Star Newspaper, 120 F.2d 36, 37 (D.C. Cir. 1941); Sullivan v. Snap-On Tools, 708 F.Supp. 750, 751 (E.D. Va. 1989), aff'd mem., 896 F.2d 547 (4th Cir. 1990)). In order to rebut the presumption that employment is atwill, and that a cause of action for wrongful discharge under a breach of contract theory can thus lie, a plaintiff must provide evidence of clear contractual intent on the part of both the employer and the employee. Choate, 14 F.3d at 76 (citing Minihan v. Am. Pharm. Ass'n, 812 F.2d 726, 727 (D.C. Cir. 1987); Sullivan v. Heritage Found., 399 A.2d 856, 860 (D.C. 1979)). The plaintiff attempts to meet this requirement by stating:
At all times relevant to this action, 1974 Pension Trust and the Funds has [sic] represented the employees in various writings, including but not limited to, personnel policies and procedure manuals, retirement and non-profit sharing plan and employee guidelines, that their employment relationship with defendant would be based on good faith, that employees would be treated fairly and equitably, that employees would be judged on the basis of individual merit and ability, and that employees would receive just compensation for their services rendered to defendant. These provisions and representations form part of [p]laintiff's employment contract with defendant. (Pl.'s Compl. at ¶ 65). The plaintiff argues the promised fair hiring procedures, and her application for a promotion made pursuant to those procedures, created an offer and acceptance that is enforceable as a contract. (Pl.'s Opp'n to Defs.' Partial Motion to Dismiss Pl.'s Compl. at 4).
District of Columbia contractual terms may be implied from an employee handbook or manual. Goos v. Nat'l Assoc. of Realtors, 715 F. Supp. 2, 4 (D.D.C. 1989); (citing Washington Welfare Assoc. Inc. v. Wheeler, 496 A.2d 613, 615 (D.C. 1985); McConnell v. Howard Univ., 818 F.2d 58, 62-63 (D.C. Cir. 1987); Greene v. Howard Univ., 412 F.2d 1128, 1132 (D.C. Cir. 1969)). In general, whether a handbook or manual creates contractual rights is a question for a jury. Goos, 715 F. Supp. at 4 (citing Wheeler, 496 A.2d at 615). An employer, however, can disclaim any implied contract exists in a handbook or manual. Goos, 715 F. Supp. at 4 (internal citations omitted); Elliott v. Healthcare Corp., 629 A.2d 6, 8 n.2 (D.C. 1993); Smith v. ULLICO, 620 A.2d 265, 269 (D.C. 1993). The legal effect of any such disclaimer is, in the first instance, a question for the Court. Goos, 715 F. Supp. at 4.
Here, the defendants assert that the handbook proves the plaintiff was an employee atwill, thus, her breach of contract claim should be dismissed. An employer can disclaim any implied contract through such unambiguous language as "this handbook does not imply an employment contract", Goos, 715 F. Supp. at 4 (citations omitted), or "it is not an employment contract and does not guarantee any fixed terms and conditions of employment", Elliott, 629 A.2d at 8 n.2, or "[t]his handbook is intended only for your information and guidance; it is not an employment contract...." Smith, 620 A.2d at 269 n.1. The language of these handbooks is substantially similar to the language of the defendants' handbook. The defendants' handbook states: "As you read through the Employee Handbook, please remember that it is designed to help you understand the Funds' personnel policies and practices. It is not an employment contract of any kind...." (Defs.' Handbook, Ex. A, Defs.' Partial Mot. to Dismiss Pl.'s Compl.). As the language of the defendants' handbook expressly disavows that it constitutes an employment contract, it cannot be reasonably interpreted to constitute an implied contract. To read the handbook, as the plaintiff does, to constitute an implied offer, acceptance and thus enforceable contract would be to reject its clear language that "[i]t is not an employment contract of any kind...." Id. The language of ...