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Kassem v. Washington Hospital Center

August 25, 2006

FADY KASSEM, PLAINTIFF,
v.
WASHINGTON HOSPITAL CENTER, DEFENDANT.



The opinion of the court was delivered by: James Robertson United States District Judge

MEMORANDUM

Plaintiff Fady Kassem sues Washington Hospital Center (WHC) for wrongful termination*fn1 and intentional infliction of emotional distress. WHC moves to dismiss both counts for failure to state a claim on which relief can be granted. That motion will be granted, and both counts of the complaint will be dismissed.

Background

Fady Kassem was employed by WHC as a nuclear medicine technologist. Complaint at 2. On July 20, 2003, another nuclear technician, Lawrence Dioh, was injected with radioactive material without the knowledge or approval of a physician and in violation of regulations promulgated by the Nuclear Regulatory Commission (NRC). Id. at 5. This incident sparked an internal investigation within WHC that Kassem alleges was a sham. Id. He alleges that the hospital made him a scapegoat of the investigation because he had conscientiously reported numerous NRC violations to his superiors, about technologists who came to work drunk, mishandled diagnostic procedures, and verbally abused patients; equipment malfunctions; computer network failures; poor safety and emergency documentation; poor quality control; and unsecured passages to nuclear material. Id. at 4-5. According to Kassem, WHC was more interested in making money than resolving these regulatory infractions and told him that, if he said "what they wanted to hear to make the investigation complete, then he would be able to save his visa and his livelihood and wouldn't be kicked out of the country." Id. at 5. Kassem refused to go along with what he describes as WHC's coverup of the Dioh injection incident, and, on August 15, 2003, he was fired. According to the complaint, WHC reported misconduct by Kassem to the NRC, but the NRC dismissed charges of wrongdoing against Kassem on January 7, 2005, and initiated regulatory proceedings against WHC. Id. at 6.

Standard of Review

A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A court should not dismiss a complaint for failure to state a claim unless the defendant can show beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Warren v. District of Columbia, 353 F.3d 36, 37 (D.C. Cir. 2004). In resolving a Rule 12(b)(6) motion, the court must treat the complaint's factual allegations, including mixed questions of law and fact, as true, drawing all reasonable inferences in the plaintiff's favor. Macharia v. United States, 334 F.3d 61, 64, 67 (D.C. Cir. 2003), cert. denied, 540 U.S. 1149 (2004).

Analysis

1. Wrongful Discharge

As a general rule, District of Columbia courts do not recognize a tort of wrongful discharge of an at-will employee. See Adams v. George W. Cochran & Co., Inc., 597 A.2d 28, 30 (D.C. 1991) ("[A]n employer may discharge an at-will employee at any time and for any reason, or for no reason at all.") One exception to this rule, however, is when the "sole reason for the discharge is the employee's refusal to violate the law, as expressed in a statute or municipal regulation." Id. at 34.

Kassem alleges that he was fired to prevent his reporting the facts of the Dioh injection to the NRC; in retaliation for his urging WHC to report its NRC violations; and for his refusal to engage in illegal activity by agreeing to cover up WHC's mistakes. Complaint at 7. These reasons, if true, would constitute flagrant violations of public policy and would fall within the Adams exception. The Adams exception is itself limited, however, when "the very statute creating the relied-upon public policy already contains a specific and significant remedy for the party aggrieved by its violation." Nolting v. National Capital Group, Inc., 621 A.2d 1387, 1390 (D.C. 1993). In such a case, plaintiffs may not "eschew the administrative remedy and instead obtain recovery against the employer on a tort theory of wrongful discharge under the narrow 'public policy' exception to the employment-at-will doctrine recognized by this Court." Id. at 1387.

Nolting governs the present case. The Energy Reorganization Act ("ERA"), 42 U.S.C. § 5801 et. seq., created the NRC and serves as the statutory basis for the public policy invoked by Kassem. It contains a "Nuclear Whistleblower Protection" provision, 42 U.S.C § 5851, that specifically addresses the situation he faced. That provision states:

No employer may discharge any employee...because the employee...(a) notified his employer of an alleged violation of this Act or the Atomic Energy Act of 1954; [or] (b) Refused to engage in any practice made unlawful by this Act or the Atomic Energy Act of 1954, if the employee has identified the alleged illegality to the employer.

42 U.S.C.A. § 5851(a)(1)(A)-(B). The ERA also provides an administrative remedy for any employee who believes he has been discharged in violation of the provision. Specifically, the ERA provides that:

[A]ny employee who believes that he has been discharged or otherwise discriminated against by the person in violation of subsection (a) may within 180 days after such violation occurs, file...a complaint with the ...


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