United States District Court, D. Columbia
September 30, 2005.
JAMES R. BROWN, Plaintiff,
WILLIAM SIM, et al., Defendants.
The opinion of the court was delivered by: PAUL FRIEDMAN, District Judge
This matter is before the Court on defendants' partial motion
to dismiss plaintiff's complaint. Plaintiff James Brown brought
suit against William Sim and Potomac Electric Power Company
("PEPCO"), alleging violations of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000e, et seq. ("Title VII"), the
Americans with Disabilities Act, 42 U.S.C. §§ 12201, et seq.
("ADA"), the Rehabilitation Act of 1973, 29 U.S.C. §§ 701, et
seq. (the "Rehabilitation Act") and 42 U.S.C. §§ 1985 and 1986,
asserting claims of intentional infliction of emotional distress
and breach of contract.
Pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, defendants move to dismiss plaintiff's claim for
intentional infliction of emotional distress (Count VIII) as well
as all claims under the Rehabilitation Act.*fn1 Defendants
also move to dismiss Count XII, alleging violations of
42 U.S.C. §§ 1985 and 1986. After careful review of the complaint,
defendants' motion to dismiss, plaintiff's opposition, and
defendants' reply, the Court grants defendants' motion to dismiss plaintiff's claims under the
Rehabilitation Act, his conspiracy claims under 42 U.S.C. §§ 1985
and 1986, and his claim for intentional infliction of emotional
distress for failure to state a claim upon which relief can be
Plaintiff is an African-American male who has been employed by
PEPCO in the Underground Construction and Maintenance Department
in Washington, D.C. for the last eleven years. See Complaint
("Compl.") ¶ 1. During his tenure with PEPCO, plaintiff has risen
through several promotions to a position as crew leader, a pay
grade fifteen position. Id. at n. 1. On March 17, 1999,
plaintiff suffered an injury to his right wrist while working
with a jackhammer on site. See Compl. ¶ 2. Plaintiff sought
medical attention, but the severity of the injury necessitated
prolonged treatment and eventual surgery. As a result of his
injury, plaintiff was placed on "restricted light duty" work
status at a lower pay scale and his physical work assignments
were reduced to suit his condition. See id. From March 1999
to April 2002, plaintiff underwent extensive physical therapy and
rehabilitation for his wrist under the care of Dr. William
Vetter. See id.
On April 2, 2002, after three years of treatment, plaintiff
sought reevaluation from Dr. Vetter so that he could return to
his previous duties as crew leader. Compl. at ¶ 3. After
examining plaintiff, Dr. Vetter recommended that he be released
from restricted duty without further work restrictions related to
his wrist. See Kaiser Permanente History Provider Note (April
3, 2002), Ex. 2 to Compl. Plaintiff conveyed this medical opinion
to PEPCO. Plaintiff alleges that PEPCO refused to reinstate him as a crew
leader in direct defiance of favorable recommendations from Dr.
Vetter because of his race and physical handicaps. See Compl. ¶
13. Plaintiff alleges that he has since been passed over for
promotion to construction mechanic, a pay grade seventeen
position; that he was denied reinstatement as a crew leader; and
that these positions subsequently were awarded to Caucasian males
of lesser skill and qualifications. See id. ¶¶ 12, 13. As a
result of being denied promotions and reinstatement as a crew
leader, plaintiff filed two complaints with PEPCO's employee
grievance board, on October 16, 2002 and January 9, 2003. See
id. ¶¶ 15, 18. On February 26, 2003, without having received a
response from PEPCO, plaintiff submitted his discrimination
charge to the District of Columbia Human Rights Commission. See
id. ¶ 19. The parties pursued mediation at the recommendation
of the Human Rights Commission. After the parties failed to reach
an agreement, plaintiff filed suit in this Court. Defendants have
filed a motion to dismiss plaintiff's claim for intentional
infliction of emotional distress as well as his claims under the
Rehabilitation Act and 42 U.S.C. §§ 1985 and 1986.
A motion to dismiss for failure to state a claim should not be
granted unless it appears "beyond doubt the plaintiff can
demonstrate no set of facts that supports his claim entitling him
to relief." See Conley v. Gibson, 355 U.S. 41, 45-46 (1957);
Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002);
Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1117 (D.C.
Cir. 2000). In evaluating a motion to dismiss, the Court must
accept the factual allegations in the complaint as true and draw
all reasonable inferences in favor of the plaintiff. See
Harris v. Ladner, 127 F.3d 1121, 1123 (D.C. Cir. 1997). While the
complaint is to be construed liberally, the Court need not accept
inferences drawn by the plaintiff if those inferences are
unsupported by facts alleged in the complaint, nor must the Court
accept the plaintiff's legal conclusions. See National
Treasury Employees Union v. United States, 101 F.3d 1423, 1430
(D.C. Cir. 1996); Kowal v. MCI Communication Corp.,
16 F.3d 1271, 1276 (D.C. Cir. 1994).
A. Rehabilitation Act Claims
Plaintiff appears to seek recovery under Section 503(a) of the
Rehabilitation Act, 29 U.S.C. § 793(a), based on PEPCO's alleged
refusal "to accommodate [him] as a part of its policy of
discrimination against Brown because of his race." Compl. at
11-12; see Opposition to Defendants' Partial Motion to Dismiss
Nunc Pro Tunc ("Opp.") at 2-3. Defendants argue that Section
503(a) does not provide a private right of action. The Court
Section 503(a) requires the inclusion in any federal contract
exceeding $10,000 of a provision requiring the contractor to
"take affirmative action to employ and advance in employment
qualified individuals with disabilities." 29 U.S.C. § 793(a). And
although there is no binding authority in this circuit on the
point, it is established law that Section 503 creates no private right of action. See Hodges v. Atchison, T. & S.F.
Ry., 728 F.2d 414, 416 (10th Cir. 1984); Painter v. Horne
Bros., Inc., 710 F.2d 143, 144 (4th Cir. 1983); Beam v. Sun
Shipbuilding & Dry Dock Co., 679 F.2d 1077 (3rd Cir. 1982);
Fisher v. City of Tuscon, 663 F.2d 861, 867 (9th Cir. 1981);
Davis v. United Airlines Inc., 662 F.2d 120, 127 (2d Cir.
1981); Rogers v. Frito Lay, Inc., 611 F.2d 1074 (5th Cir.
1980); McMullin v. Ashcroft, 337 F. Supp. 2d 1281, 1291 (D.
Wyo. 2004); Giacobbi v. Biermann, 780 F. Supp. 33, 35 (D.D.C.
1992); Sanders v. Washington Metropolitan Area Transit
Authority, 652 F. Supp. 765, 770 (D.D.C. 1986). As the United
States Court of Appeals for the Seventh Circuit has stated:
By its terms, the language of Section 503 does not
manifestly endow with a private judicial remedy any
handicapped individual who believes he had been
harmed by a contractor's failure to meet his duty of
affirmative action. Rather, the language simply
requires any federal department or agency contracting
with a private employer to include an affirmative
action covenant in the procurement or service
Simpson v. Reynolds Metals Co., 629 F.2d 1226
, 1241 (7th Cir.
The Rehabilitation Act sets forth an administrative process
through which aggrieved parties may pursue claims of breach of
such contractual provisions. The statute provides that "if any
individual with a disability believes any contractor has failed
or refused to comply with the provisions of a contract with the
United States . . . such individual may file a complaint with the
Department of Labor." 29 U.S.C. § 793(b). After notification, the
Department of Labor must "promptly investigate such complaint and
shall take such action thereon as the facts and circumstances
warrant." Id. Section 503 therefore affords complainants the
ability to pursue administrative redress only for contractual
breaches, not for violation of the Rehabilitation Act itself. Because Section 503 does not provide a private right of action,
the complaint fails to state a claim upon which relief may be
granted, and the Court grants defendants' motion to dismiss
plaintiff's claims under the Rehabilitation Act.
B. Claims Under 42 U.S.C. §§ 1985 and 1986
Count XII of the complaint seeks redress from PEPCO and its
president William Sim under 42 U.S.C. §§ 1985 and 1986 for Sim's
alleged failure to "supervise agents of PEPCO to insure that they
did not discriminate." Compl. at 14.*fn3 Defendants argue
that plaintiff insufficiently alleges two of the requisite
elements of a claim under Section 1985 and therefore that any
claim under that section should be dismissed.
Section 1985(3) of the Civil Rights Act of 1964 provides a
civil remedy for conspiracies to interfere with constitutionally
or federally protected rights when motivated by invidiously
discriminatory animus. See Griffin v. Breckenridge,
403 U.S. 88, 102-03 (1971). Under Section 1985(3), a plaintiff must show:
(1) a conspiracy; (2) an act in furtherance of the conspiracy;
(3) an intent to deprive any person of the equal protection of,
or equal privileges and immunities under, the law; and (4) a
resulting injury to a legal right or privilege. See Great
American Federal Savings & Loan Assoc. v. Novotny, 442 U.S. 366,
373 (1979) (quoting Griffin v. Breckenridge, 403 U.S. at 102).
To state a claim under Section 1985(3), therefore, plaintiff much
allege the existence of a conspiracy in fact. Plaintiff alleges that a conspiracy existed solely between
PEPCO and William Sim, the President of PEPCO.*fn4 Under the
intracorporate conspiracy doctrine, however, "a corporation
cannot conspire with its employees, and its employees, when
acting in the scope of their employment, cannot conspire among
themselves." McAndrew v. Lockheed Martin Corp., 206 F.3d 1031,
1036-37 (11th Cir. 2000); see also Nelson Radio & Supply Co.
v. Motorola, Inc., 200 F.2d 911, 914 (5th Cir. 1952) ("a
corporation cannot conspire with itself any more than a private
individual can, and it is the general rule that the acts of the
agent are the acts of the corporation."); Michelin v. Jenkins,
704 F. Supp 1, 4 (D.D.C. 1989) (granting motion to dismiss
Section 1985(3) claim because District of Columbia Board of
Education and its officers constituted a single entity); Gladden
v. Barry, 558 F. Supp. 676, 679 (D.D.C. 1983) ("the weight of
authority holds that there can be no conspiracy if the conduct
complained of is essentially a single act by a single entity").
Plaintiff has offered no argument why the intracorporate
conspiracy doctrine should not apply, and therefore has not
alleged the existence of a conspiracy. Accordingly, the complaint
fails to state a claim under 42 U.S.C. § 1985.*fn5 Section 1986 imposes liability for negligence on persons who
have knowledge of "wrongs visited upon persons, and although
aware of the wrong, took no action." Thomas v. News World
Communications, 681 F.Supp. 55, 72 (D.D.C. 1988). The statute
"establishes unambiguously that a colorable claim under section
1985 is a prerequisite to stating an adequate claim for neglect
to prevent under section 1986." Id. Because plaintiff fails to
state a claim under Section 1985, he also cannot state a claim
under Section 1986, and the Court will grant defendants' motion
to dismiss those claims.
Accordingly, this Court finds that all claims under Sections
1985 and 1986 with respect to defendants William Sim and PEPCO
must be dismissed because the intracorporate conspiracy doctrine
precludes liability for alleged conspiracies between employees
and their employers, and because liability under Section 1985 is
a prerequisite to liability under Section 1986.
C. Intentional Infliction of Emotional Distress
Count VIII asserts a claim for intentional infliction of
emotional distress. Plaintiff alleges that the actions of PEPCO's
management "fit a pattern of behavior that singles out
African-Americans for discriminatory treatment," and that this
pattern created a hostile work environment that caused plaintiff
to suffer extreme emotional distress. Defendants argue in their
partial motion to dismiss that "none of the actions alleged by
plaintiff arise to the level of `extreme and outrageous' conduct
necessary to sustain" a claim for intentional infliction of emotional distress. Defendants' Reply in Support of Partial
Motion to Dismiss ("Def. Reply") at 2. Defendants assert that
plaintiff's claim amounts to nothing more than a "straightforward
employment dispute," which as a matter of law does not state a
claim for emotional distress. Id.
To state a claim for intentional infliction of emotional
distress, a plaintiff must allege that the defendant engaged in
"extreme and outrageous" conduct that either intentionally or
recklessly caused the plaintiff severe emotional distress.
Abourezk v. New York Airlines, Inc., 895 F.2d 1456, 1458 (D.C.
Cir. 1990); Amons v. District of Columbia, 231 F. Supp. 2d 109,
117 (D.D.C. 2002); Kerrigan v. Britches of Georgetowne,
705 A.2d 624, 628 (D.C. 1997). Conduct is "extreme and outrageous"
when it is "so outrageous in character, and so extreme in degree,
as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized
community" an extremely difficult standard to meet. Kaiser v.
United States, 761 F. Supp. 150, 156 (D.D.C. 1991) (citing
RESTATEMENT (SECOND) OF TORTS § 46 cmt. d (1965)). Especially in
the employment context, the standard is exacting. See Futrell
v. Dep't of Labor Fed. Credit Union, 816 A.2d 793, 808 (D.C.
2003); Kerrigan v. Britches of Georgetowne, 705 A.2d at 628.
Plaintiff alleges that defendant refused to allow plaintiff to
resume his former duties as a crew leader for medical reasons
despite the expressed opinion of plaintiff's physician that
plaintiff was fit to do so, restricted plaintiff from operating a
commercial vehicle on the job, refused to promote plaintiff to
the position of construction mechanic, refused to allow plaintiff
to take sick leave that plaintiff requested "due to stress"
arising from his employment situation, and demanded that
plaintiff submit to a further physical examination as a condition
of any promotion. See Compl. at 6-10. Construing plaintiff's
allegations as true, such conduct is "of the type attributable to `employer-employee conflicts [that] do not, as a
matter of law, rise to the level of outrageous conduct.'" It is
not sufficient to state a claim for intentional infliction of
emotional distress. Kerrigan v. Britches of Georgetowne,
705 A.2d at 628 (quoting Howard Univ. v. Best, 484 A.2d 958, 986
Plaintiff also makes the general allegation that "PEPCO agents
have harassed and otherwise created a hostile work environment,"
causing plaintiff to suffer an emotional breakdown. See id.
at 8. Although "[c]reation of a hostile work environment by
racial or sexual harassment may, upon sufficient evidence,
constitute a prima facie case of intentional infliction of
emotional distress," Howard Univ. v. Best, 484 A.2d at 986,
plaintiff does not allege that this conduct was motivated by any
discriminatory animus; more importantly, these allegations are
far too vague and conclusory to support a claim. Accordingly, the
complaint fails to state a claim for intentional infliction of
emotional distress, and the Court will grant defendant's motion
to dismiss Count VIII of the complaint.
Because plaintiff has failed to state a claim for intentional
infliction of emotional distress or for violations of the
Rehabilitation Act or Sections 1985 and 1986 of the Civil Rights
Act of 1964. Accordingly, Counts VIII and XII shall be dismissed.
An Order consistent with this Opinion shall issue this same
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