The opinion of the court was delivered by: Richard W. Roberts United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Howard University ("Howard") brings this action against Belinda Lightfoot Watkins, Howard's former Acting Dean for Student Life and Activities, for indemnification, fraud, and misrepresentation, based upon Watkins' actions that resulted in a successful claim of discrimination and retaliation against Howard by a former employee. Watkins has moved to dismiss or in the alternative for summary judgment, and Howard opposes. Because the complaint states plausible claims of equitable indemnification, fraud and misrepresentation, the motion will be denied.
The complaint alleges the following facts. Watkins was employed by Howard from 1976 through July 2006. In 1998, Watkins was named the Acting Dean for Student Life and Activities, which was a supervisory position. Two of the employees supervised by Watkins were an administrative assistant named Paulette Porter, and an Acting Assistant Dean of Students named Daniel Goodwin. (Compl. ¶¶ 5-7, 14.) In September 1998, Goodwin suffered a stroke that caused him to be hospitalized. Goodwin learned during his hospital stay that he was infected with the Human Immunodeficiency Virus ("HIV"). (Id. ¶ 16.) Porter frequently visited Goodwin during Goodwin's hospital stay. During those visits, Porter learned that Goodwin was infected with HIV, and communicated that information to Watkins. (Id. ¶¶ 17-18.) When Goodwin returned to work in February 1999, Porter harassed Goodwin. (Id. ¶¶ 19-21.) Watkins knew how Porter was treating Goodwin, but did not discipline Porter or otherwise stop the harassment. Indeed, Watkins made inappropriate statements about Goodwin and about male students who met with Goodwin which led students to believe that Goodwin suffered from Acquired Immune Deficiency Syndrome. (Id. ¶¶ 22-25.)
Goodwin experienced side effects from his HIV medication that prevented him from arriving at the office at the regularly scheduled starting time. He attempted to compensate for his late arrival by staying past the office's regularly scheduled closing time, but Watkins admonished Goodwin by letter for arriving late to the office. Goodwin responded by asking Watkins to accommodate him by allowing him to arrive at work after the office opened and stay until after the office closed, but Watkins refused Goodwin's proposed accommodation. (Compl. ¶¶ 28-32.)
In 2002, Watkins proposed that Howard refrain from renewing Goodwin's contract as Acting Assistant Dean of Students. (Id.
¶ 34.) Representatives from Howard's Office of General Counsel and Office of Human Resources Management asked Watkins to explain why she recommended not renewing Goodwin's contract, and if Goodwin was a member of a class protected by federal or local anti-discrimination laws. Watkins responded by stating that Goodwin had "behavior problems" including excessive socializing, disrespectful behavior, misrepresenting his position, and spreading rumors that Watkins had a drinking problem. Watkins did not inform Howard's representatives that Goodwin was infected with HIV. Howard approved Watkins' recommendation to not renew Goodwin's employment contract, which then expired on June 30, 2002. Howard would not have approved Watkins' recommendation to not renew Goodwin's contract had it been aware that Goodwin suffered from the HIV infection, or that Watkins had denied Goodwin's request for an accommodation. (Id. ¶¶ 29-30, 35-41, 45.)
Goodwin filed a claim with the U.S. Equal Employment Opportunity Commission ("EEOC"). The EEOC found that Watkins' decision to recommend not renewing Goodwin's contract constituted retaliation for his request for accommodation. (Id. ¶ 42.) Goodwin later filed suit against Howard and Watkins, alleging claims of discrimination in violation of the Americans with Disabilities Act of 1991 ("ADA"), 42 U.S.C. § 12111 et seq., the District of Columbia Human Rights Act ("DCHRA"), D.C. Code Ann. § 2-1401.01 et seq., Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601 et seq. (Def.'s Mem. in Supp. of Mot. to Dismiss or for Summ. J. ("Def.'s Mem.") Ex. 1.) Howard settled Goodwin's claims against both the University and Watkins by paying Goodwin $253,000 in damages and attorneys fees. (Compl. ¶¶ 46-47.)
Howard later filed this four-count complaint*fn1 alleging claims of equitable indemnity (Count I), misrepresentation by concealment (Count II), constructive fraud (Count III), and negligent misrepresentation (Count IV)*fn2 . Watkins has moved to dismiss or for summary judgment, arguing that Howard failed to plead fraud with particularity, that employers are not allowed to seek contribution or indemnity from their employees for successful claims of discrimination, and that the remaining claims are merely mislabeled attempts to re-state Count I's claim for equitable indemnity. Howard opposes.
"A complaint can be dismissed under Rule 12(b)(6) when a plaintiff fails to state a claim upon which relief can be granted." Peavey v. Holder, 657 F. Supp. 2d 180, 185 (D.D.C. 2009) (citing Fed. R. Civ. P. 12(b)(6)). "A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint." Smith-Thompson v. Dist. of Columbia, 657 F. Supp. 2d 123, 129 (D.D.C. 2009).
To survive a motion to dismiss, a complaint must contain sufficient factual matter, acceptable as true, to "state a claim to relief that is plausible on its face." . . . A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 570 (2007)). The complaint must be construed in the light most favorable to the plaintiff and "the court must assume the truth of all well-pleaded allegations." Warren v. Dist. of Columbia, 353 F.3d 36, 39 (D.C. Cir. 2004). In deciding a motion brought under Rule 12(b)(6), a court does not consider matters outside the pleadings, but a court may consider on a motion to dismiss "the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint," Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002), or "documents 'upon which the plaintiff's complaint necessarily relies' even if the document is produced not by the plaintiff in the complaint but by the defendant in a motion to dismiss," such as Goodwin's complaint in the underlying discrimination case. Hinton v. Corr. Corp. of Am., 624 F. Supp. 2d 45, 46 (D.D.C. 2009) (quoting Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998)). "[A] complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations[.]" Twombly, 550 U.S. at 555. However, "[w]here a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Iqbal, 556 U.S. at 662 (quoting Twombly, 550 U.S. at 557).
"[W]here both parties submit material outside the pleadings and 'the parties are not taken by surprise or deprived of a reasonable opportunity to contest facts averred outside the pleadings and the issues involved are discrete' legal issues, the court may convert the motion to one for summary judgment 'without providing notice or the opportunity for discovery to the parties.'" Highland Renovation Corp. v. Hanover Insurance Group, 620 F. Supp. 2d 79, 82 (D.D.C. 2009) (quoting Tunica-Biloxi Tribe of La. v. United States, 577 F. Supp. 2d 382, 405 (D.D.C. 2008) and Smith v. United States, 518 F. Supp. 2d 139, 145, 155 (D.D.C. 2007)). A motion for summary judgment is properly granted when the moving party demonstrates that there is no genuine issue as to any material fact and that moving party is entitled to judgment as a matter of law. Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009) (citing Fed. R. Civ. P. 56(c) and Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986)). "In considering a motion for summary judgment, [a court is to draw] all 'justifiable inferences' from the evidence . . . in favor of the non-movant." Cruz-Packer v. Dist. of Columbia, 539 F. Supp. 2d 181, 189 (D.D.C. 2008) (quoting Anderson, 477 U.S. at 255); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The court must determine "whether there is a need for ...