United States District Court, D. Columbia
January 10, 2006.
JAMES LIGHTFOOT, Plaintiff,
DISTRICT OF COLUMBIA, et al., Defendants.
The opinion of the court was delivered by: REGGIE WALTON, District Judge
On July 30, 2004, the plaintiff, an employee of the District of
Columbia Public Schools ("DCPS"), filed this action against the
defendants, Robert Graves and the DCPS. The plaintiff alleges the
following claims: (1) a violation of the Federal Family and
Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq. (2000);
(2) a violation of the District of Columbia Family and Medical
Leave Act ("DCFMLA"), D.C. Code § 32-501, et seq. (2003); (3)
breach of contract; and (4) intentional infliction of emotional
distress. Currently before the Court is the Defendants' Motion
for Judgement on the Pleadings (Defs.' Mot.).*fn1 For the
reasons set forth below, the defendants' motion is
granted.*fn2 I. Factual Background
The DCPS hired the plaintiff, James Lightfoot, as an Assistant
Principal at Spingarn Senior High School ("Spingarn") in the
District of Columbia in August 2001. Complaint ("Compl.") at ¶ 4.
On March 12, 2003, the plaintiff submitted an "Application of
Leave," which requested twenty-four days off commencing on March
13, 2003, and concluding on April 15, 2003, due to "severe job
related anxiety and stress." Id. ¶ 5. This application included
a medical certification from his physician, Dr. Thomas Gay,
recommending that the plaintiff not work for at least one month.
Id. In response to the plaintiff's request, Robert Graves, the
Principal at Spingarn, wrote to the plaintiff informing him that
the proper procedure for requesting such leave was to complete an "Application for Leave of Absence Re: Extended
Leave of Absence and the Family Leave Act." Id. ¶ 6. Graves
included a copy of the application with his response. Id. In
addition to completing the application, the plaintiff was
required to submit all necessary supporting documentation and
comply with the requirements of both the "Family Leave Act and
the Board Rules." Id. Moreover, the letter from Graves noted
that until the plaintiff completed the enclosed application and
his request was approved, he would be placed in an absent without
leave status, which could lead to discplinary actions. Id.
After receiving Graves's response, one of the school's employees,
a time keeper, notified the plaintiff that "she had not received
his medical certification and could not process [her] payroll."
Id. ¶ 7. To address this deficiency, the plaintiff allegedly
delivered the medical certification to the school. Id.
Nonetheless, on April 3, 2003, the plaintiff received a letter
from Graves stating that he was "no longer privileged to enter
the premises or grounds of Spingarn. . . ." Id. ¶¶ 7-8. The
letter notified the plaintiff that all further communications
should be directed to the Assistant Superintendent of the DCPS.
Id. ¶ 8.
Following receipt of this letter, the plaintiff initiated a
grievance procedure. Id. ¶¶ 9-13. However, before the grievance
process commenced, the plaintiff was notified that he should
return to work on May 5, 2003. Id. ¶ 15. However, on May 4,
2003, the plaintiff sent a letter to Graves stating:
This letter is to notify you that pursuant to D.C.
Code [§] 32-506 and District of Columbia Municipal
Regulations Title 1600 The Family Medical Leave Act
I will be away from my job as Assistant Principal
at Spingarn High School for a period of sixteen (16)
weeks or less depending upon the advise of my medical
doctor. This is also to notify you that the original
"Application for Leave" I submitted on March 14, 2003
is now being converted to absence under the Family
and Medical Leave Act. Therefore, my Medical Leave
remedies are retroactive to March 14, 2003. In
accordance with the Act, I will be submitting to you
a medical certificate issued by my health care
provider as soon as practicable. I have an
appointment with my doctor scheduled for Monday, May
Id. ¶ 16. The plaintiff notes that he received a "Certificate
of Disability" from his physician on May 20, 2003, which stated
that he should not return to work until June 15, 2003. Id. ¶
17. However, the plaintiff never submitted the certificate to his
employer. Id. And, in a letter dated May, 7, 2003, the
plaintiff was informed that he had been terminated. Id. ¶ 18.
In a separate letter, the plaintiff was informed that he could
continue to pursue his grievance through the Council of School
Officers ("CSO"), as it is the exclusive representative of
assistant principals. Id.
Dissatisfied with the processing of his grievance, and
believing that it had not been fully resolved, the plaintiff
resubmitted his grievance to the Superintendent of the DCPS.
Id. ¶ 19. The plaintiff did not receive a response from the
Superintendent, and subsequently filed an administrative
complaint with the Equal Employment Opportunity Counsel ("EEOC")
for the DCPS. Id. The EEOC failed to timely investigate the
plaintiff's allegations within the required statutory time
period, and thus, the plaintiff filed a complaint with the
District of Columbia Office of Human Rights ("DCOHR"). Id. ¶¶
21-22. The parties attempted to resolve the dispute, but failed.
Id. ¶¶ 23-34. Thus, the plaintiff withdrew the complaint he had
filed with the DCOHR, and filed this action. Id. ¶ 35.
II. Standard of Review
A Court will grant judgement on the pleadings "only if it is
clear that no relief could be granted under any set of facts that
could be proved consistent with the allegations." Fed.R.Civ.P.
12(c); Longwood Village Rest., Ltd. v. Ashcroft,
157 F. Supp. 2d 61, 66 (D.D.C. 2001) (citing Hishon v. King & Spalding,
467 U.S. 69, 73 (1984)). "If there are allegations in the complaint which, if proved, would provide a basis for recovery[,]" the
Court cannot grant judgement on the pleadings. Haynesworth v.
Miller, 820 F. 2d 1245, 1254 (D.C. Cir 1987) (citations
omitted). Accordingly, all factual doubts must be resolved in
favor of the plaintiff. Id. (citations omitted). The standard
of review under Rule 12(c) is essentially the same as that for a
motion to dismiss under Rule 12(b)(6). Jung v. Ass'n of Am. Med.
Colls., 339 F. Supp. 2d 26, 35 (D.D.C. 2004) (citations
omitted); see generally 2 Moore's Federal Practice, § 12.38 (3d
On a motion to dismiss for failure to state a claim upon which
relief can be granted pursuant to Rule 12(b)(6), this Court must
construe the allegations and facts in the complaint in the light
most favorable to the plaintiff and must grant the plaintiff the
benefit of all inferences that can be derived from the alleged
facts. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Barr v.
Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004) (citing Kowal v.
MCI Comm'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)). "[T]he
complaint need only set forth `a short and plain statement of the
claim,' Fed.R.Civ.P. 8(a)(2), giving the defendant fair notice
of the claim and the grounds upon which it rests." Kingman Park
Civic Ass'n v. Williams, 348 F.3d 1033, 1040 (D.C. Cir. 2003)
(citing Conley, 355 U.S. at 47). "Such simplified `notice
pleading' is made possible by the liberal opportunity for
discovery and the other pretrial procedures established by the
Rules to disclose more precisely the basis of both claim and
defense and to define more narrowly the disputed facts and
issues." Conley, 355 U.S. at 47-48. While many well-plead
complaints are conclusory, the Court need not accept inferences
or conclusory allegations that are unsupported by the facts set
forth in the complaint. Kowal, 16 F.3d at 1276. Moreover, in
deciding whether to dismiss a claim under Rule 12(b)(6), the
Court can only consider the facts alleged in the complaint,
documents attached as exhibits or incorporated by reference into
the complaint, and matters about which the Court may take judicial notice. EEOC v.
St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 & n. 3.
A court may dismiss a claim pursuant to Rule 12(b)(6) only if the
defendant can demonstrate "beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle
him to relief." Conley, 355 U.S. at 45-46.
III. Legal Analysis
The defendants have moved for judgment on the pleadings
asserting that each of the claims raised by the plaintiff are
deficient as a matter of law. Defs.' Mem. at 2. The Court will
therefore address each of the plaintiff's claims below.
(A) The Plaintiff's Federal Family and Medical Leave Act
The defendants contend that the plaintiff's federal FMLA claim
should be dismissed as a matter of law because (1) the plaintiff
failed provide a timely and complete medical certification
required by the FMLA, and (2) he has not sufficiently alleged
that he is suffering from a serious health condition. Defs.' Mem.
at 4-7. The plaintiff, on the other hand, contends that his
application for leave submitted on March 14, 2003, was timely and
that he suffered from a serious health condition as defined by
the FMLA. Pl.'s Opp'n at 3-4.
The FMLA provides that "an eligible employee shall be entitled
to a total of 12 workweeks of leave during any 12-month period . . .
[b]ecause of a serious health condition that makes the
employee unable to perform the functions of the position of such
employee." 29 U.S.C. § 2612(a)(1)(D) (2000); see also Price
v. Wash. Hosp. Center, 321 F. Supp. 2d 38, 45 n. 1 (D.D.C. 2004)
(quoting Chang v. Inst. for Public-Private P'ships, Inc., No.
02-CV-1256, 2004 WL 742806, at *7 (D.D.C. 2004)). A "serious
health condition" is defined by FMLA as "an illness, injury,
impairment, or physical mental condition that involves [either]
inpatient care in a hospital . . . or continuing treatment by a health care
provider." 29 U.S.C. § 2611(11) (2000). Regulations promulgated
under the FMLA further provide that a serious health condition
that involves continuing treatment by a health care provider
(i) a period of incapacity . . . of more than three
consecutive calendar days, and any subsequent
treatment or period of incapacity relating to the
same condition, that also involves[:]
(A) Treatment two or more times . . .; or
(B) Treatment by a health care provider on at least
one occasion which results in a regimen of continuing
treatment under the supervision of the health care
29 C.F.R § 825.114(a) (2005).*fn3
Therefore, for a leave of
absence to qualify under the FMLA, a plaintiff must allege that
there was a period of incapacity of at least three days along
with treatment for that condition by a health care provider
either (1) on two or more occasions, or (2) at least once, as
long as it results in a regimen of continuing treatment under
that provider's supervision. Russell v. North Broward Hosp.,
346 F.3d 1335
, 1342 (11th Cir. 2003). The regulation further
provides that "treatment . . . includes (but is not limited to)
examinations to determine if a serious health condition exists
and evaluations of the condition." 29 C.F.R. § 825.114(b).
It is the plaintiff's burden to establish that the leave of
absence was caused by a "serious health condition." Bauer v.
Varity Dayton-Walther Corp., 118 F. 3d 1109, 1112 (6th Cir.
1997). Moreover, an employer can require that an employee's request for
leave under the FMLA be supported by a medical certification
issued by the employee's health care provider.
29 U.S.C. § 2613(a) (2000). A medical certification is sufficient if it
states: "(1) the date on which the serious health condition
commenced; (2) the probable duration of the condition; [and] (3)
the appropriate medical facts within the knowledge of the health
care provider regarding the condition." 29 U.S.C. § 2613(b). An
employer's request for a medical certification must be
accompanied by a notice indicating the consequence of failing to
provide an adequate certification. 29 C.F.R. § 825.301(b)(1)(ii).
However, if the employer "finds a certification incomplete," it
must "provide the employee a reasonable opportunity to cure any
such deficiency." 29 C.F.R. § 825.305(d); see also Kaufman
v. Fed. Express Corp., 426 F. 3d 880, 886 (7th Cir. 2005).
The defendants first contend that the plaintiff failed to
provide an adequate medical certification to the DCPS. Defs.'
Mem. at 4-5. Although the complaint lacks specificity, in that it
does not detail the contents of the medical certification
submitted to the defendants in March 2003, the plaintiff attached
what he purports to be his medical certification to his
opposition. Pl.'s Opp'n, Attach. 2 (medical certification from
Dr. Thomas Gay). This certification provides: (1) that the
plaintiff's totally incapacitating health condition commenced on
March 13, 2003 and would continue until April 15, 2003; (2) that
the plaintiff had "been seen and evaluated for severe job related
anxiety and stress;" and (3) that the plaintiff had been "advised
not to work for at least one month." Id. This was clearly
sufficient to satisfy the requirements of 29 U.S.C. § 2613(a).
However, the plaintiff failed to comply with the defendants'
request for additional information.*fn4 Compl. ¶¶ 6, 17. Admittedly, it is unclear
what additional information, if any, the defendants sought. Id.
¶ 6 (stating that Principal Graves advised the plaintiff that his
"Application form must be resubmitted to [the principal] with
supporting documentation."). And the FMLA requires nothing more
than what was provided by the plaintiff. Accordingly, this Court
cannot conclude that the plaintiff failed to provide the
requisite medical certification as required by 29 U.S.C. § 2913.
Thus, the defendants are not entitled to judgment on the
pleadings on this ground.
Second, the defendants assert that the plaintiff has failed to
allege any facts in his complaint from which this Court could
conclude that he has suffered from a "serious health condition"
as required by the FMLA. Defs.' Mem. at 6-7. Specifically, the
defendants argue that the plaintiff's physician simply
"evaluated" him "for severe job related anxiety and stress," and
did not indicate that the plaintiff was involved in either
inpatient or continuing care. Defs.' Mem. at 7. In response, the
plaintiff contends that his condition was a "serious health
condition" because his physician required him to be "away from
work . . . [for] more than three consecutive calendar days."
Pl.'s Opp'n at 3-4. However, contrary to the plaintiff's
position, this Court cannot conclude that the facts alleged in
the complaint demonstrate that the plaintiff had a serious health
condition within the meaning of the FMLA.
As already discussed, the FLMA defines a "serious health
condition," as "an illness, injury, impairment, or physical
mental condition that involves [either] inpatient care in a
hospital . . . or continuing treatment by a health care
provider." 29 U.S.C. § 2611(11). Here, there are no allegations that the plaintiff was involved in inpatient care.
Thus, the Court must examine whether he has alleged facts in his
complaint which support the conclusion that he was engaged in
continuing treatment by a health care provider. The regulation
promulgated to implement the FMLA sets forth a two prong-test to
determine if a person is receiving continuing treatment by a
health care provider. First, the plaintiff must demonstrate that
there is "a period of incapacity . . . of more than three
consecutive calendar days, and any subsequent treatment or period
of incapacity relating to the same condition. . . ." 29 C.F.R §
825.114(a)(1). And second, the plaintiff must show that he has
either been (1) treated more than two times; or (2) treated "by a
health care provider on at least one occasion which results in a
regimen of continuing treatment under the supervision of the
health care provider." 29 C.F.R § 825.114(a)(1); see Russell,
346 F.3d at 1342.
Here, the plaintiff's medical certification from his physician
states that he should not work for at least a month. Pl.'s Opp'n,
Attach. 2. In addition, the certification notes that the
plaintiff was "totally incapacitated" at the time the medical
certification was issued. Id. Thus, the plaintiff has satisfied
the first prong of the test. As to the second prong, there are no
allegations that the plaintiff is undergoing "a regimen of
continuing treatment under the supervision of the health care
provider." 29 C.F.R. § 825.114(a)(i)(B). The medical
certification simply states that the plaintiff was "seen and
evaluated for severe job related anxiety and stress," but there
is no indication of any continuing treatment in the medical
certification. Pl.'s Opp'n, Attach. 2. Moreover, there are no
allegations in the complaint or the papers before the Court that
the plaintiff was undergoing continuing treatment under the
supervision of a health care provider. Thus, to fall under the
protection of the FMLA, the plaintiff must demonstrate that he
had been treated two or more times. From the plaintiff's complaint, it is
clear that he was initially treated by his physician on or around
March 12, 2003, the date when his medical certification was
issued. Compl. ¶ 5. The complaint, however, fails to allege any
further facts which demonstrate that the plaintiff was treated on
a second occasion. While the complaint indicates that the
plaintiff was scheduled to see his doctor again on May 5, 2003,
compl. ¶ 16, there is no indication that he ever went to this
appointment, or had a further evaluation. Rather, the plaintiff
merely suggests that he had scheduled the appointment. This is
simply insufficient for the Court to conclude that the plaintiff
was treated on two or more occasions.
The plaintiff did, however, receive a second medical
certification from his physician on May 20, 2003, which indicated
that he should not work from March 13, 2002 through June 15,
2003. Id. ¶¶ 16-17. Even if this Court could conclude that the
plaintiff received treatment before receiving this second medical
certification, the plaintiff still failed to trigger the
protections of the FMLA for several reasons. First, the plaintiff
admits that he never delivered this second medical certification
to his employer. Id. ¶ 18. Thus, this Court cannot conclude
that the plaintiff satisfied the FMLA requirements because he
failed to provide his employer with the information the employer
needed to determine whether the plaintiff was eligible for FMLA
benefits. Bauer, 118 F. 3d at 1112 (noting that the burden is
on the plaintiff to establish eligibility for FMLA protection).
Second, this Court cannot conclude that this subsequent
evaluation, assuming it occurred, satisfies the requirements of
the FMLA because the first medical certificate indicated that the
plaintiff would be incapacitated until April 14, 2003, and the
second evaluation would not have occured until well over a month
after that date May 20, 2003.
The two treatment requirement, on its face, seems quite simple
to satisfy an individual must be treated twice. In certain unique situations, such as the
one here, the application is more complicated because the second
alleged treatment did not occur until after the date on which the
plaintiff could return to work as stated in the first medical
certification. Thus, the issue becomes whether this second
treatment, which occurred outside the initial period of
incapacitation, satisfies FMLA regulation 29 C.F.R. § 825.114(a).
Although the District of Columbia Circuit has not yet addressed
this question, this Court is persuaded by the Tenth Circuit,
which concluded that the FMLA requires that the second treatment
occur "during the `period of incapacity'. . . ." Jones v. Denver
Pub. Sch., 427 F.3d 1315, 1323 (10th Cir. 2005).*fn5 In
Jones, the Court found that by "fram[ing] the definition [of
serious health condition] in terms of a period of incapacity that
involves at least two treatments," the FMLA "indicates that the
timing of the treatments and not just the need for treatments is
important." Id. at 1321. The Jones Court found that "this
emphasis on the `period of incapacity' reinforces the view that
the necessary treatments must be temporally linked to that
period." Id. at 1320. Moreover, the Jones Court concluded
that an "indefinite timeframe reading [of the FMLA] would place
employers in a position of uncertainty regarding their FMLA
obligations," and "would invite strategic behavior by
[employees], who could schedule a second visit to `determine if a
serious health condition exists' long after all symptoms have
subsided, solely to bolster their claim of entitlement to FMLA leave in anticipation of the litigation." Id. at 1322-23.
Here, even if this Court could conclude through a strained
reading of the complaint that the plaintiff actually received a
second treatment, this second treatment was scheduled for May 5,
2003. However, it appears from the complaint that since the
plaintiff did not receive the second medical certification until
May 20, 2003, that this is the likely date of that second
treatment. However, regardless of which date the treatment was
provided, it did not take place until after the initial
designated period of incapacitation had expired. As such, the
right to take leave under the FMLA was not triggered. See id.
(holding that employee's absences from work did not qualify as
FMLA absences because the employee failed to allege sufficient
facts to demonstrate that he suffered from a "serious health
condition" where his second treatment occurred two weeks after
the initial period of incapacitation). Accordingly, even when
viewing the facts in the light most favorable to the plaintiff,
he has failed to allege sufficient facts to demonstrate that he
suffered from a "serious health condition" within the meaning of
the FMLA. Therefore, because of this failing, the defendants are
entitled to judgment on the plaintiff's federal FMLA claim.
(B) The Plaintiff's District of Columbia Family and Medical
Leave Act Claim
In addition to a claim under the federal Family and Medical
Leave Act, the plaintiff also asserts a violation of the District
of Columbia Family and Medical Leave Act ("DCFMLA"). Compl. ¶ 37.
The defendants argue, however, that this claim is barred by the
statutes one-year statute of limitations. Defs.' Mem. at 7.
Particularly, the defendants argue that the plaintiff's
employment was terminated on May 7, 2003, and he did not commence
this action until July 30, 2004, more than one year later. Id.
In the plaintiff's opposition, he does not advance an argument to
the contrary. Accordingly, this Court will treat this argument as
conceded by the plaintiff, and enter judgment in favor of the defendants. FDIC
v. Bender, 127 F.3d 58, 67-68 (D.C. Cir. 1997); Stephenson v.
Cox, 233 F. Supp. 2d 119, 121 (D.D.C. 2002).
However, even if this Court had to address the merits of this
claim, the defendants would still be entitled to judgment in its
favor. The District of Columbia Code provides that "[n]o civil
action may be commenced more than 1 year after the occurrence or
discovery of the alleged violation [of the DCFMLA]." D.C. Code §
32-510(b) (2001); see also Simmons v. District of Columbia,
977 F. Supp. 62, 64 (D.D.C. 1997). The plaintiff's termination is
the alleged unlawful action at issue in this litigation. While
the complaint does not identify the specific date on which the
plaintiff learned of his termination, it is clear that he was
notified of his termination in a letter sometime in early May,
2003. Comp. ¶ 18. Moreover, it was based on this letter that the
plaintiff filed a grievance with the Superintendent of the DCPS
on May 16, 2003. Id. ¶ 19. Thus, it is clear that the plaintiff
was aware of his termination at least by May 16, 2003. However,
he did not file this action until July 30, 2004. Therefore, even
using the last possible date when it is clear that the plaintiff
knew about the alleged unlawful act, the plaintiff did not file
this action until more than two months after the one-year statute
of limitations had elapsed. The plaintiff does not allege that he
was not required to comply with the one-year statute of
limitations, and the plaintiff's complaint evidences no reason
for his failure to do so.*fn6 Accordingly, the defendants
are entitled to judgment on the plaintiff's DCFMLA claim as well. (C) The Plaintiff's Breach of Contract Claims
The plaintiff asserts two breach of contract claims. First, he
alleges that his union's collective bargaining agreement was
breached when the defendants refused to conduct a grievance
hearing in accordance with this agreement. Compl. ¶ 38. Second,
the plaintiff supposes that by refusing to negotiate with his
attorney, the defendants violated D.C. Code § 1-617.06 (2005),
which according to the plaintiff amounts to a breach of contract.
Id. ¶ 39. In both respects, it appears that the plaintiff
contends that the defendants breached the collective bargaining
agreement when they allegedly failed to address or attempt to
settle his FMLA claims. The defendants seek dismissal of both
claims alleging that this Court lacks subject matter jurisdiction
to resolve them. Defs.' Mem. at 7-8. And because the plaintiff's
opposition fails to respond to the defendants' jurisdictional
challenge, the Court will treat the position as conceded.
Bender, 127 F.3d at 67-68; Stephenson,
233 F. Supp. 2d at 121. Nonetheless, even if this Court had to examine the merits of
the plaintiff's breach of contract claims, it is clear that they
would not survive the defendants' motion.
First, to the extent the plaintiff believes the defendants
breached the collective bargaining agreement by failing to
address his federal FMLA claims, this argument has no merit
because as indicated earlier in this opinion, the plaintiff has
failed to properly allege a federal FMLA claim. Moreover, even if
this Court could conclude that such a claim was properly alleged,
it is well-settled that the District of Columbia Comprehensive
Merit Personal Act, D.C. Code § 1-617.06 et seq. (2001)
("CMPA"), ". . . with a few exceptions, is the exclusive remedy
for a District of Columbia public employee who has a work-related
complaint of any kind." Robinson v. District of Columbia,
748 A.2d 409, 411 (D.C. 2000); see also, Hawkins v. Hall,
537 A.2d 571, 574 (D.C. 1988); Cooper v. AFSCME, Local 1033, 656 A.2d 1141,
1143-43 (D.C. 1995). In fact, the District of Columbia Court of
Appeals indicated that in an earlier case it had noted:
After reviewing the purpose and text of the CMPA,
that the Council of the District of Columbia intended
the Act to "address virtually every conceivable
personnel issue among the District, its employees,
and their unions with a reviewing role for the
courts as a last resort, not a supplementary role for
the courts as an alternative forum." We concluded
that "the Council intended CMPA to provide District
employees with their exclusive remedies for claims
arising out of employer conduct in handling personnel
ratings, employee grievances, and adverse actions."
Stockard v. Moss, 706 A.2d 561
, 565 (D.C. 1997) (alteration in
original) (internal citations omitted). Under the CMPA, an
employee must bring such a grievance to the District of Columbia
Public Employee Relations Board ("PERB"). Cooper,
656 A.2d at 1142-43. And only after a final order of the PERB has been issued
can the plaintiff seek judicial review. D.C. Code §
1-617.13(c)(2003). Such review, however, must commence in the
Superior Court of the District of Columbia. Id.; Feaster v.
Vance, 832 A.2d 1277
, 1282 (D.C. 2003). Moreover, the District
of Columbia Court of Appeals has made it clear that "whether a
union-represented employee challenges his [adverse employment
action] via CMPA procedures or through a CMPA-sanctioned
collective bargaining agreement, PERB retains exclusive, original
jurisdiction to determine `whether a particular breach (or
alleged breach) . . . is also an unfair labor practice.'"
Cooper, 656 A.2d at 1142-43.
Here, any failure on the part of the defendants to address the
plaintiff's FMLA claims, as purportedly required under the
collective bargaining agreement, is clearly an adverse personnel
action that should have been brought before the PERB in the first
instance. Moreover, to the extent that the plaintiff challenges
the defendants' failure to allegedly follow CMPA procedures set forth in D.C. Code § 1-617.06,*fn7 Compl. ¶ 39, this
claim also must be first taken by the plaintiff to the PERB. But
the plaintiff does not allege that he has made any effort to have
his breach of contract claims addressed by the PERB before coming
to this Court. Accordingly, the claim cannot be
(D) The Plaintiff's Intentional Infliction of Emotional
The plaintiff claims that he suffered intentional infliction of
emotional distress ("IIED") when the defendants (1) failed to
comply with the federal and District of Columbia FMLAs; (2)
refused to honor the terms of the collective bargaining
agreement; and (3) terminated him for attempting to exercise his
rights under the FMLA statutes and the collective bargaining
agreement. Compl ¶ 40. The defendants assert that this count is
deficient for two distinct reasons. First, because the defendants
have absolute governmental immunity, Defs.' Mem. at 8-9, and
second because the plaintiff has alleged no facts in his
complaint to satisfy the "outrageousness" requirement to
establish an IIED claim, id. at 10-12. Although the plaintiff
fails to address the defendants' second argument, he supposes
that governmental immunity does not exist in this case because the defendant deliberatively
violated non-discretionary statutory obligations by failing to
comply with the FMLA statutes. Pl.'s Opp'n at 4. The Court need
not address this argument, as it is clear that the plaintiff has
failed to state a claim for IIED.
The District of Columbia Court of Appeals has it made clear
that to state a claim for IIED, a plaintiff must establish "(1)
`extreme and outrageous' conduct on the part of the defendant
which (2) intentionally or recklessly (3) causes the plaintiff
`severe emotional distress.'" Adams, 597 A.2d at 35 (quoting
Howard University v. Best, 484 A.2d 958, 985 (D.C. 1984)).
Moreover, IIED liability has been found only where the conduct
has been 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."
Sere v. Group Hospitalization, Inc., 443 A.2d 33, 37 (D.C.
1982) (citation omitted); Smith v. Union Labor Life Ins. Co.,
620 A.2d 265, 270 (D.C. 1993) (citations omitted); Waldon v.
Covington, 415 A.2d 1070, 1076 (D.C. 1980) (citations omitted).
Here, even if this Court could conclude that the defendants are
not entitled to absolute immunity because they deliberatively
violated both the federal and District of Columbia FMLA statutes
and the collective bargaining agreement by terminating the
plaintiff despite the plaintiff's medical certification deeming
him incapacitated, it is clear that the defendants' alleged
actions are not "so outrageous in character . . . and so extreme
in degree . . ." such that an IIED claim could be sustained.
Sere, 443 A.2d at 37. In fact, many other courts have concluded
that "adverse actions taken against an employee by an employer do
not necessarily constitute `extreme and outrageous' behavior" to
warrant a finding of IIED. Schoen v. Consumers United Group,
Inc., 670 F. Supp. 367, 379 (D.D.C. 1986); see Adams,
597 A.2d at 35 (holding that employer's conduct was not so extreme and outrageous where the
employer discharged the employee for disobeying employer's order
to drive a truck without proper documentation in violation of the
law); Hoffman v. Hill Knowlton, Inc., 777 F. Supp. 1003, 1005
(D.D.C. 1991) (concluding that employer's conduct was not so
extreme and outrageous where the employer terminated the employee
due to his age, gave false pretextual reasons for the
termination, and allegedly communicated the false reasons to
future potential employers). Here, the plaintiff's termination,
even if it violated both the federal and District of Columbia
FMLA statutes or the collective bargaining agreement, would not
establish a viable IIED claim.*fn9 Accordingly, the
defendants are also entitled to judgment in their favor on the
plaintiff's IIED claim.
For the reasons set forth above, each count of the plaintiff's
complaint is deficient as a matter of law. Accordingly, the Court
grants the defendants' motion for judgement on the pleadings and
dismisses this case.
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