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Zelaya v. UNICCO Service Co.

November 26, 2008


The opinion of the court was delivered by: Chief Judge Royce C. Lamberth


This matter comes before the Court on defendant UNICCO Service Company's ("UNICCO") "Motion to Dismiss Counts Two, Three and Five of Complaint" [4], defendants Argueta and Fernandes's "Motion to Dismiss Complaint" [12], and defendant Alarcon's "Motion to Dismiss Complaint" [16]. Upon full consideration of the motions, the oppositions and replies thereto, the applicable law, and the entire record herein, the Court finds, for the reasons set forth below, that defendant UNICCO's motion to dismiss will be DENIED in part and GRANTED in part, defendants Argueta and Fernandes's motion to dismiss will be GRANTED, and defendant Alarcon's motion to dismiss will be DENIED.


Plaintiff Blanca Zelaya worked for defendant UNICCO as a custodian providing cleaning services at 1200 K Street in Washington, D.C., starting in 2004. (Compl. ¶ 9. ) Plaintiff alleges that from January 2005 until November 2006, UNICCO discriminated and/or retaliated against her based on her gender, and defendant Carlos Alarcon sexually harassed her, with the assistance of defendants Oscar Argueta and Carlos Fernandes, leading to a hostile work environment. (See generally id. ¶¶ 15-60.)

With respect to the actions of individual defendants, plaintiff alleges that her problems at UNICCO began shortly after January 4, 2005, when UNICCO promoted Alarcon to the position of Building Operations Manager at 1200 K Street. (Id. ¶ 13.) As Manager, Alarcon supervised plaintiff. (Id.) According to plaintiff, almost immediately after becoming supervisor, defendant Alarcon began making offensive and unwelcome sexual comments and sexual advances toward her while she was pregnant. (Id. ¶ 15.)

Plaintiff alleges that from January 2005 and continuing until April 2006, Alarcon subjected plaintiff to an extensive campaign of explicit comments, sexual propositions, unwanted touching, harassment, and other retaliatory job-related conduct after she refused his advances. (See generally id. ¶¶ 15-60.) Plaintiff further alleges that Alarcon enlisted the support of the other individual defendants on his behalf. Specifically, Alarcon first involved Argueta to "monitor" plaintiff, and to seek a reason to fire her during "spring 2005," activities that ended soon thereafter when Argueta was reassigned. (See id. ¶¶ 21-23.) These are the last, and only, acts attributed to Argueta by the complaint.

Plaintiff alleges that the stress from defendants' harassment negatively impacted her health both during and after her pregnancy. (Id. ¶ 28.) As a result, starting on May 18, 2005, she took extended leave from her job and gave birth to her child prematurely. (Id.)

Thereafter, beginning at some point after August 2005 when plaintiff returned to work following the birth of her son, Alarcon allegedly enlisted Fernandes to monitor plaintiff, and he is alleged to have participated in harassment by: giving her disciplinary notices; eliminating her break; and trying to drive her to a meeting with a human resources officer about her complaints of harassment, all during the period from March -- May, 2006. (See id. ¶¶ 34, 35, 45, 56.)

Plaintiff filed a discrimination complaint with the District of Columbia Office of Human Rights ("DCOHR") on April 18, 2006, listing UNICCO as the respondent and attaching her signed declaration, the first paragraph of which reads as follows:

I, Blanca Zelaya, this 14th day of April, 2006, am submitting this declaration in support of my claims against the UNICCO Services Company ("UNICCO") for sexual harassment, creation of a hostile work environment, and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, 42 U.S.C. § 2000e et seq., and against UNICCO and Carlos Alarcon, Operations Manager, for sexual harassment, sex discrimination, and unlawful retaliation in violation of the District of Columbia Human Rights Act ("DCHRA"), D.C. Code §§ 1-2501 et seq. (emphasis added). (DCOHR Complaint Form; Pl.'s Opp'n to Defs.' Mot. to Dismiss, Ex. A [13-2].) The DCOHR complaint was cross-filed with the Equal Employment Opportunity Commission ("EEOC"). (Compl. ¶ 74.) The charge of discrimination generated during this process was sent via certified mail to UNICCO on April 28, 2006, lists UNICCO as the employer that discriminated against the plaintiff, and under the section allowing for description of the particulars of the charge, only generically refers to a singular "Respondent's Building Operations Manager (Male)." (DCOHR Charge of Discrimination; Defs.' Reply to Pl.'s Opp'n to Defs.' Mot. to Dismiss, Ex. 1 [14-2].)

In July 2006, the plaintiff further alleges that defendant Fernandes helped UNICCO retaliate by denying her time off to attend a mediation of her claims by DCOHR. (See Compl. ¶ 58.) On November 9, 2006, UNICCO assigned plaintiff to a position at another building. (Id. ¶ 63.) Plaintiff alleges that Fernandes was one of the company employees who met with her to inform her of the transfer. (Id.) This is the last act attributed to Fernandes by the complaint.

Plaintiff alleges that UNICCO's retaliation culminated in terminating the plaintiff by transferring her to another building, where she claims UNICCO knew it would soon lose the maintenance contract. (Id. ¶¶ 63-64.) On April 23, 2007, shortly after defendant UNICCO transferred the plaintiff to the new building, UNICCO lost the contract on the building, such that the plaintiff was no longer employed by UNICCO as of that date. (See id. ¶ 66.) A new company, Cavalier, took over responsibility for cleaning the building and offered the plaintiff a position, which she turned down. (See id. ¶¶ 66, 69.) However, the plaintiff alleges Cavalier constructively discharged her by offering her a work schedule that was too late in the day to allow her to take care of her son, even though other positions were available. (Id. ¶¶ 68-69.) Plaintiff alleges that, upon information and belief, defendants UNICCO and Alarcon made false and defamatory statements about the plaintiff, which caused Cavalier to offer her the untenable work schedule, so she would be compelled to leave. (Id.) Plaintiff states that Cavalier should have offered her a different position because she had more seniority than the two other employees at the work site who held daytime positions like her.*fn1 (Id. ¶ 68.)

Plaintiff withdrew the complaint she had previously filed with DCOHR on November 14, 2007 and requested a Right to Sue Notice from the EEOC, which the EEOC issued on December 5, 2007. (Id. ¶ 74.) On December 21, 2007, plaintiff filed the complaint in this matter. The complaint consists of five counts as follows: (1) Title VII discrimination against defendant UNICCO; (2) DCHRA discrimination against defendant UNICCO and its individual employees, defendants Alarcon, Argueta, and Fernandes; (3) Title VII and DCHRA retaliation against defendant UNICCO; (4) DCHRA aiding and abetting of defendant UNICCO's retaliation by defendants Alarcon, Argueta, and Fernandes; and (5) intentional interference with prospective contractual relations against defendant UNICCO. Defendants' motions for dismissal target the inadequacy of the DCHRA claims in Counts II, III, and IV and the intentional interference with prospective contractual relations claim in Count V.


A. Rule 12(b)(6) Motion to ...

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