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Evans v. Washington Center for Internships and Academic Seminars

November 19, 2008

JAMIE EVANS, PLAINTIFF,
v.
THE WASHINGTON CENTER FOR INTERNSHIPS AND ACADEMIC SEMINARS ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge

MEMORANDUM OPINION

Plaintiff worked as an unpaid intern in the summer of 2007 at a health practice in Washington, D.C. She has now filed suit alleging that one of her supervisors, Steven Kulawy, committed the tort of battery and sexual harassment in violation of the District of Columbia Human Rights Act ("DCHRA"), D.C. Code § 2-1401.01 et seq. In addition, she has sued the Washington Center for Internships and Academic Seminars for negligently placing her with Dr. Kulawy without adequately investigating his past. And, she has sued Physical Medicine Associates LLC ("PMA"); its owner Daniel Storck; National Integrated Health Associates LLC ("NIHA"), which is also owned by Storck; and the Center for Integrative Body Therapies ("CIBT"), which is a trade name for PMA, based on a theory of respondeat superior and negligence. All defendants have moved for dismissal pursuant to Fed. R. Civ. P. 12(b)(6). As explained herein, plaintiff's claims for sexual harassment fail as a matter of law, and CIBT will be dismissed since it cannot be sued.

BACKGROUND

During the summer of 2007, Dr. Steven Kulawy was a chiropractor working for CIBT, which is the trade name for PMA. (Compl. ¶¶ 3-4, 26.) In May 2007, plaintiff began her unpaid summer internship at CIBT/PMA, where she worked with Dr. Kulawy. (Id. ¶¶ 25-26.) She was placed at the office by the Washington Center for Internships and Academic Seminars ("TWC"), an organization that places college students in internships in the Washington, D.C. area. (Id. ¶¶ 2, 12, 17.) Plaintiff alleges that TWC arranged for her to work with Dr. Kulawy without visiting the site, interviewing Dr. Kulawy or investigating his past, which, according to plaintiff, included a history of sexual misconduct, including fondling female patients. (Id. ¶¶19-22, 42-52.)

Plaintiff claims that Dr. Kulawy engaged in inappropriate and offensive behavior during her internship by making advances towards her, commenting on her appearance, massaging her shoulders, and wrapping his arm around her waist. (Id. ¶¶ 29-32.) As a result, plaintiff claims that she "grew increasingly anxious and uncomfortable" and changed her appearance to make herself less attractive. (Id. ¶¶ 33-34.) However, she did not report this behavior to anyone until mid-July 2007, when she talked to a TWC employee who was conducting a site visit. (Id. ¶¶ 53-54, 61.) As a result, on the recommendation of TWC, plaintiff stopped her internship at CIBT/PMA. Plaintiff claims that this experience forced her to change her career plans and has caused emotional and physical distress. (Id. ¶¶ 63-64.)

Before the Court are motions to dismiss filed by TWC and by Kulawy, NIHA, CIBT and Storck. Defendants seek dismissal of all counts, or at a minimum, the dismissal of NIHA, CIBT and Storck.

ANALYSIS

I. BATTERY

"To establish liability for the tort of battery in the District of Columbia, a plaintiff must plead and establish that the defendant caused 'an intentional, unpermitted, harmful or offensive contact with his person or something attached to it.'" Dammarell v. Islamic Republic of Iran, No. 01-cv-2224 (JMF), 2006 WL 2382704, at *26 (D.D.C. Aug. 17, 2006) (quoting Marshall v. District of Columbia, 391 A.2d 1374, 1380 (D.C. 1978)). Plaintiff's complaint incorporates all of these elements, as she alleges that "Dr. Kulawy intentionally touched [her] in an offensive manner each time he came up behind her and massaged her shoulders while she was typing or filing and each time he put his arm around her waist." (Compl. ¶ 71.) Defendants argue that the contact was not "unpermitted," Dammarell, 2006 WL 2382704, at *26, because plaintiff failed to object to Dr. Kulawy's touching until her last day at work. (Defs.' Mot. at 8-9.)*fn1 However, whether plaintiff consented to Dr. Kulawy's physical contact is a question of fact.*fn2 See, e.g., Anderson v. St. Francis-St. George Hosp., 614 N.E.2d 841, 844 (Ohio Ct. App. 1992) (for a battery claim, "[t]he finder of fact must make a determination on the issue of consent").

Likewise, defendants' argument that the contact could not possibly be construed as harmful or offensive (Defs.' Reply at 2-3)*fn3 is also a factual question. See, e.g., Harper v. Winston County, 892 So.2d 346, 354 (Ala. 2004) (reversing summary judgment because there was a factual question as to whether a supervisor's touching of an employee's arm was harmful or offensive). Accordingly, the battery count states a claim upon which relief can be granted.

II. SEXUAL HARASSMENT UNDER THE DCHRA

Plaintiff's sexual harassment claims fail because she was not an "employee" within the meaning of the DCHRA. The DCHRA defines an employee as "any individual employed by or seeking employment from an employer." D.C. Code § 2-1401.02(9). The statute defines an employer as "any person who, for compensation, employs an individual . . . ." D.C. Code § 2-1401.02(10) (emphasis added). Plaintiff did not satisfy this definition, as she was not working for compensation, nor was she seeking a paid job. Moreover, while this issue has never been decided under the DCHRA, it has consistently been held under Title VII that an unpaid intern is not an employee.*fn4 See, e.g., O'Connor v. Davis, 126 F.3d 112, 115-16 (2d Cir. 1997) (college student volunteering as an intern at a hospital as part of her academic studies was not an employee under Title VII); Neff v. Civil Air Patrol, 916 F. Supp. 710, 712 (S.D. Ohio 1996) ("unpaid volunteers are not employees within the protection of Title VII"); Haavistola v. Cmty. Fire Co. of Rising Sun, Inc., 6 F.3d 211, 221(4th Cir. 1993) (volunteer firefighter found to be an employee under Title VII because, while she did not receive direct compensation, she received other benefits such as a disability pension, survivor's pension for dependents, and tuition reimbursement).

Plaintiff argues that, because the scope of the DCHRA is generally broader than that of Title VII , the DCHRA should be construed to apply to unpaid interns. (Pl.'s Opp'n at 7.)*fn5 This argument is unpersuasive. The text of the DCHRA clearly provides that the employment must be "for compensation." See D.C. Code ยง 2-1401.02(10) (defining an employer as "any person who, for compensation, employs an individual . . . [or] any person acting in the interest of such employer, directly or indirectly"). And, even if the scope of the DCHRA is often broader than that of Title VII, this does not mean that every term in the DCHRA can be expanded beyond its plain meaning. Plaintiff notes that the DCHRA, unlike Title VII, permits suits against individuals and has an aiding and abetting provision. (Pl.'s Opp'n at 7.) However, there is a textual basis for these departures from Title VII. There is no ...


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