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BROWN v. SIM

September 30, 2005.

JAMES R. BROWN, Plaintiff,
v.
WILLIAM SIM, et al., Defendants.



The opinion of the court was delivered by: PAUL FRIEDMAN, District Judge

OPINION

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 granted.

  I. BACKGROUND

  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.

  II. DISCUSSION

  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 agrees.*fn2

  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 contract.
Simpson v. Reynolds Metals Co., 629 F.2d 1226, 1241 (7th Cir. 1980).

  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 ...


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