The opinion of the court was delivered by: Royce C. Lamberth, Chief Judge
Now before the Court comes defendants' motion  to dismiss, or in the alternative, for summary judgment. Upon consideration of the motion, plaintiff's opposition, the entire record herein, and applicable law, the Court will GRANT defendants' motion to dismiss without prejudice with respect to the Fifth and Eighth Amendment claims and GRANT defendants' motion for summary judgment with respect to the Title VII claim.
On December 21, 2006, plaintiff Laverna Simms filed suit in this Court alleging that she and other female contractors and employees were routinely subject to a pattern of sexual harassment at the District of Columbia Department of Corrections ("DOC"). (Second Am. Compl. ¶ 11.) Plaintiff's suit names three defendants: the District of Columbia, the Director of the DOC, and the Center for Correctional Health and Policy Studies ("CCHPS"). Although plaintiff's precise employment history is in dispute, plaintiff alleges that she "was at all times relevant herein, [ ] an employee and part owner and/or incorporator of [CCHPS] and employee, agent, and/or contractor for the defendants the District of Columbia Government and the District of Columbia [DOC]." (Id. ¶ 3.)
Plaintiff began working at the DOC as an intake coordinator in 1997. (Id. ¶ 17.) In 2001, she became one of the incorporators of CCHPS, a corporation that contracted with the DOC to provide mental health services to inmates. (Id. ¶ 24.) Plaintiff maintains that although she was a contractor, she also worked directly for the District of Columbia and DOC as an employee because of the nature of her work and CCHPS's contract. (Id. ¶ 25.) CCHPS employees performed all of the medical attention for inmates at the DOC but were not supervised by DOC. (Defs. Statement of Undisputed Material Facts ¶ 13.) Plaintiff was not paid wages or a salary by DOC, nor did DOC extend annual leave to plaintiff. (Id. ¶ 14.) In addition, plaintiff was not provided retirement benefits and DOC did not pay her social security taxes. (Id.) Although DOC screened employees of CCHPS when they began work at DOC, the DOC did not have the authority to terminate CCHPS employees. (Defs. Opp'nat 3-4.) Further, as CCHPS is an independent contractor, DOC alleges that it was not the intent of either CCHPS or DOC that CCHPS employees would become DOC employees. (Defs. Statement of Undisputed Material Facts ¶ 15.)
Soon after starting work at DOC, plaintiff met Correction Officer Harcourt Masi ("Masi") who approached her and asked her on a date the first time he saw her. (Second Am. Compl. ¶ 18.) After rejecting Masi's request for a date, for the next five years on a daily basis Masi would stand outside plaintiff's door and stare at her while she interviewed inmates. (Id. ¶ 19.) In addition, Masi continued to ask plaintiff out on dates and make comments about her body. (Id. ¶ 20.) Plaintiff characterized Masi's conduct as becoming more aggressive towards her and other female employees, which eventually resulted in Masi's fondling her in late December 2003 when he "touched and/or carressed her chest and arm and then grabbed her arm." (Id. ¶ 30.)This occurred again several weeks later. (Id. ¶ 31.)According to plaintiff, while she worked at the DOC there existed a culture in the D.C. jail where women were preyed upon by Correction Officers and male inmates.(Id. ¶ 33.)
Plaintiff filed discrimination complaints with the Office of Special Inspector, which investigated her claims of sexual discrimination. (Id. ¶ 35.)As a result of this, plaintiff alleges that Masi retaliated against plaintiff in 2004-05 by waiting in opening the door for plaintiff in order to delay her exit from housing units which subjected her to standing in the presence of inmates longer than necessary. (Id. ¶ 45.) Plaintiff asserts that this jeopardized her safety and that complaints about these actions were ignored or resolved in an inadequate manner. (Id.)
Under Federal Rule of Civil Procedure 8(a)(2), a plaintiff need only provide a short and plain statement of the claim that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests. In resolving a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court must ascertain whether the challenged complaint adequately states a claim on which relief may be granted. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982). In an employment discrimination case, the plaintiff need not set forth the elements of a prima facie case at the initial pleading stage. See Sparrow v. United Airlines, Inc., 216 F.3d 1111, 1113-14 (D.C. Cir. 2000). The Court will not grant a motion to dismiss for failure to state a claim "unless it appears 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. In addition, as to the other claims, the court must construe all allegations therein and draw all reasonable inferences in the plaintiff's favor as well. Scheuer, 416 U.S. at 236. While a complaint need not plead "detailed factual allegations," the factual allegations it does include "must be enough to raise a right to relief above the speculative level" and to "nudge  claims across the line from conceivable to plausible." Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1965, 1974 (2007). The court may, in its discretion consider matters outside the pleadings and thereby convert a Rule 12(b)(6) motion into a motion for summary judgment under Rule 56. See Fed. R. Civ. P. 12(b); Yates v. District of Columbia, 324 F.3d 724, 725 (D.C. Cir. 2003).
B. Title VII Employment Status
To sue under Title VII, a plaintiff must be an employee-"an individual employed by an employer." 42 U.S.C. § 2000e(f) (2006). In order to clarify this definition, the Supreme Court has noted that "Congress intended to describe the conventional master-servant relationship as understood by common-law agency doctrine." Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322--23 (1992) (citations omitted). To determine whether an individual is an employee or an independent contractor, a court must look to a variety of factors to assess the "economic realities" of the relationship. Spirides v. Reinhardt, 613 F.2d 826, 831 (D.C. Cir. 1979). There are at least twelve factors that a Court must analyze in this analysis, the most important of which is the extent of the right to control the "means and manner" of the worker's performance. See id. at 831--32.
Additional matters a court must consider include, among others, (1) the kind of occupation, with reference to whether the work usually is done under the direction of a supervisor or is done by a specialist without supervision; (2) the skill required in the particular occupation; (3) whether the "employer" or the individual in question furnishes the equipment used and the place of work; (4) the length of time during which the individual worked; (5) the method of payment; (6) the manner in which the work relationship terminated; (7) whether annual leave is afforded; (8) whether the work is an integral part of the business of the "employer"; (9) whether the worker accumulates retirement benefits; (10) whether the "employer" pays social security taxes; and (11) the intention of the parties. See id.
In the D.C. Circuit, however, it is unclear whether the Spirides test applies when a plaintiff claims to be a joint employee. See Redd v. Summers, 232 F.3d 933, 937-38 (D.C. Cir. 2000) ("This court has never invoked Spirides to resolve an issue of joint employment . . . .") Further, the D.C. Circuit has noted that a fairly common joint employment test looks at whether "one employer[,] while contracting in good faith with an otherwise independent company, has retained for itself sufficient control of the terms and conditions of employment of the employees who are employed by the other employer." Id. at 938 (quoting NLRB v. Browning-Ferris Industries of Pennsylvania, Inc., 691 F.2d 1117, 1123 (3d Cir. 1982)). Because the issue was not argued by the parties, the D.C. Circuit noted that it would "not try to resolve which test is applicable or indeed whether there is a material difference between the two . . . ." In an attempt to ...