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Daryl Stevens v. Sodexo

March 6, 2012


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


This case, removed from the Superior Court of the District of Columbia in June 2011, involves an employee suing a former employer and former supervisor for wrongful termination and identity theft, among other claims. Before the Court are defendant Sodexo, Inc.'s Motion [5] to Dismiss*fn1 , plaintiff's Motion [12] for Permission to File a Sur-Reply, and plaintiff's Motion

[17] to Convert Defendant's Motion to Dismiss. Upon consideration of the motions, oppositions, replies, the entire record in this case, and the applicable law, the Court will grant Sodexo's Motion [5] to Dismiss, grant plaintiff's Motion [12] for Permission to File a Sur-Reply, and deny plaintiff's Motion [17] to Convert Defendant's Motion to Dismiss.


According to the factual allegations in the Complaint, the events giving rise to this lawsuit began in May 2009, when plaintiff Daryl Stevens was a "contract full[-]time employee" for Sodexo, Inc. Compl. [1-1] 4 ¶4, June 23, 2011. An attachment to Stevens' Complaint indicates that he worked as a bus driver, with occasional janitorial duties. Id. at Ex. 1. His immediate supervisors in May 2009 were Johnae Hairston and defendant Lavell Rollins. Id. at 4 ¶4. In an internal grievance authored by Stevens and dated May 4, 2009, he expressed concerns to Sodexo's Office of Human Resources about his treatment at the hands of Hairston, whom he said was a "thorn in his side." Id. at Ex. 1. He complained that she verbally abused him, disrespected him, and made his life more difficult. Id. He also complained of a specific incident, in April 2009, when she falsely accused him of not cleaning the "Science Lab." Id. While Stevens alleges in his Complaint that this grievance was directed at both Hairston and defendant Rollins, it only alleges misconduct on the part of Hairston. See id. The Complaint also describes the grievance as reporting "unfair labor practices" and "threats of violence" against Stevens, but (again) it does nothing of the sort. See id.

After this grievance was submitted to Sodexo, Stevens met with Rollins and Hairston, after which (Stevens alleges) they "became increasingly hostile" to him. Id. at 2 ¶8--9. This culminated in September 2009, when Rollins terminated Stevens' employment with Sodexo. Id. at 2 ¶11. However, Stevens was again hired by Sodexo that summer as a "full[-]time

[p]ermanent employee with full employee benefits." Id. at 2 ¶¶11(b), 14--15. But he was fired again, in August 2010, allegedly for insubordination. Id.

The next relevant incident occurred sometime in the spring of 2011, when Stevens prepared to file his taxes. While looking over his paperwork, he allegedly learned that Sodexo payroll checks had continued to be issued in his name after he was terminated. Id. at 3 ¶18. He also allegedly learned that these checks had been cashed by defendant Rollins. Id. Stevens' theory is that Rollins obtained the checks and impersonated Stevens at a local bank in order to cash them. Id. at 4 ¶20. Stevens further alleges that Rollins used the proceeds from his fraudulent scheme "for his benefit, and the benefit of others," without Stevens' knowledge or consent. Id. Shortly after he discovered the fraud, Stevens contacted various Sodexo employees, including an investigator, and he cooperated with the subsequent investigation. Id. at 4 ¶21. The Complaint doesn't say what happened during this investigation or what its results were.

On June 6, 2011, Stevens sued Sodexo, Inc., "Affiliated Companies," and Lavell Rollins in the Superior Court of the District of Columbia. Compl. [1-1] 1. That lawsuit was removed to this Court*fn2 later that month based on diversity of citizenship. Notice of Removal [1] 1, June 23, 2011. Stevens' Complaint (which is not brought pro se) is-to put it charitably-an almost complete mess, with misnumbered paragraphs and numerous misspelled words (and headings). The Complaint fails to separately number individual claims, is full of ambiguity, and contains several jarring inconsistencies regarding facts of great importance to Stevens' claims.

A careful and liberal interpretation of the Complaint reveals the following: "Count 1" alleges that Sodexo breached its employment contract with him when it terminated him in September 2009 and August 2010. Id. at 5. Within "Count 1," Stevens also brings claims for wrongful termination against Sodexo based on the same conduct. "Count 2" of his Complaint is for negligent hiring, supervision, and retention against Sodexo. Id. at 6. "Count 3" brings various claims (fraud, forgery, intentional infliction of emotional distress, identity theft, and misrepresentation) against Rollins only. Id. at 9. Finally, "Count 4," which is difficult to understand, alleges, inter alia, that Sodexo and Rollins are "jointly and severally" liable for fraud, forgery, and identity theft. Id. at 10 ¶46.

In June 2011, Sodexo moved to dismiss Stevens' Complaint as against Sodexo, Inc. and "Affiliated Companies," pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Def. Sodexo's Mot. Dismiss [5] 1, June 28, 2011. Following Sodexo's filing of a Reply to Stevens' Opposition to Sodexo's Motion to Dismiss in July 2011, Stevens filed a Motion for Permission to File a Sur-Reply. Pl.'s Mot. Permission [12] 1, July 26, 2011. Then, in November 2011, with Sodexo's Motion to Dismiss still pending, Stevens filed another motion, this time seeking to "convert" Sodexo's Motion to Dismiss into a motion for summary judgment-"with limited discovery"-brought under Rule 56 of the Federal Rules of Civil Procedure. Pl.'s Mot. Convert [17] 1, Nov. 27, 2011.


A motion to dismiss is appropriate when a complaint fails "to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). To overcome this hurdle, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted). The Court must "accept as true all of the factual allegations contained in the complaint," Atherton v. District of Columbia, 567 F.3d 672, 681 (D.C. Cir. 2009), and grant a plaintiff "the benefit of all inferences that can be derived from the facts alleged." Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).

However, the Court may not "accept inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in the complaint." Id. While a complaint does not need to contain detailed factual allegations, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). A complaint that offers "labels and conclusions" or a "formulaic recitation of the elements of a cause of action will not do." Id. (citations omitted). "Nor does a complaint suffice if it tenders 'naked assertion[s]" devoid of 'further factual enhancement.'" Id. (citations omitted). In ...

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