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Robert Jackson, Plaintiff v. Public Company Accounting Oversight Board

May 2, 2012


The opinion of the court was delivered by: James E. Boasberg United States District Judge


Plaintiff Robert Jackson was employed until January 2012 at Defendant Public Company Accounting Oversight Board. He brought this suit asserting that PCAOB breached his implied employment contract by retaliating against him for providing information in an internal investigation and also that it wrongfully terminated him. In now moving to dismiss his Amended Complaint, Defendant correctly argues that Plaintiff has not successfully pled either claim. The Court, consequently, will grant Defendant's Motion.


According to Plaintiff's Amended Complaint, which must be presumed true for purposes of this Motion, he was employed since December 2008 as "Deputy Director, Operations and Infrastructure of the Office of Information Technology ('OIT')" at PCAOB. Am. Compl., ¶ 6. Two years later, "Defendant commenced an internal investigation regarding OIT governance and staffing." Id., ¶ 8. "Plaintiff was one of three senior staff of OIT" who was interviewed, and he provided "truthful information . . . including his perception that OIT's senior leadership was lacking." Id., ¶¶ 10-11. The final report of the investigation was released in October 2011 and included a number of negative comments about OIT, which Plaintiff alleges reflect his statements. Id., ¶¶ 12-13.

After the report was released, Defendant added a senior position, Deputy Chief Administrative Officer (DCAO), to whom Plaintiff's superior now reported. Id., ¶ 15. On December 9, 2011, this new DCAO "met with Plaintiff, made numerous unfounded allegations that Plaintiff's conduct and job performance were poor, removed Plaintiff's staff and threatened that Plaintiff's employment was tenuous." Id., ¶ 17. After complaining to Defendant's ethics officer about this, Plaintiff met with its in-house lawyer, who ultimately "proposed that Plaintiff's employment terminate in exchange for a severance." Id., ¶¶ 19, 22. These "actions made Plaintiff's workplace intolerable and caused Plaintiff to sustain severe emotional distress and mental anguish." Id., ¶ 23. Ultimately, he alleges, his "work conditions were so intolerable that he was constructively discharged from his employment on January 30, 2011 [sic, presumably 2012]." Id., ¶ 27.

Plaintiff brings one cause of action, in which he claims, "By and through its conduct, Defendant breached its anti-retaliation policy and constructively discharged the Plaintiff from his employment." Id., ¶ 29. Defendant has now filed a Motion to Dismiss.

II.Legal Standard

Rule 12(b)(6) provides for the dismissal of an action where a complaint fails "to state a claim upon which relief can be granted." When the sufficiency of a complaint is challenged under Rule 12(b)(6), the factual allegations presented in it must be presumed true and should be liberally construed in plaintiff's favor. Leatherman v. Tarrant Cty. Narcotics & Coordination Unit, 507 U.S. 163, 164 (1993). The notice pleading rules are "not meant to impose a great burden on a plaintiff," Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005), and he or she must thus be given every favorable inference that may be drawn from the allegations of fact. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 584 (2007). Although "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion, Twombly, 550 U.S. at 555, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation omitted). Plaintiff must put forth "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Though a plaintiff may survive a 12(b)(6) motion even if "recovery is very remote and unlikely," Twombly, 550 U.S. at 555 (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)), the facts alleged in the complaint "must be enough to raise a right to relief above the speculative level." Id. at 555.


It is somewhat difficult to discern precisely what cause(s) of action Plaintiff intends from his sole count. Potential ones are breach of contract, wrongful termination, and retaliation. Although the terms "breach of contract" and "wrongful termination" never appear in the Amended Complaint, Plaintiff's Opposition makes clear that these are intended claims. See Opp. at 6 ("Plaintiff has alleged causes of action for breach of contract and wrongful termination."). On the other hand, Plaintiff never argues that the Complaint asserts a separate retaliation claim, so the Court may assume it did not, and it will thus treat Defendant's argument on that point as conceded. See Lewis v. District of Columbia, 2011 WL 321711, at *1 (D.C. Cir. 2011) ("'It is well understood in this Circuit that when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded.'") (quoting Hopkins v. Women's Div., General Bd. Of Global Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003)). The Court, accordingly, will address the contract and termination claims in turn.

A. Breach of Contract

Plaintiff does not assert that Defendant has breached a term of a specific employment contract since he concedes he is an at-will employee. Opp. at 1-2. Instead, his claim rests on an alleged "violation of Defendant's written anti-retaliation policy that is contained in its Employment Policies and Procedures Manual." Am. Comp., ¶ 2. More specifically, Plaintiff alleges that this policy "prohibits retaliation against its employees 'for providing truthful information in an internal . . . investigation.'" Id., ¶ 5 (ellipses in Amended Complaint). This policy, he contends, "creates a contract for which Defendant is liable for breaching." Opp. at 4.

Defendant vigorously disputes this theory, arguing that such a policy in an employee manual or handbook is not enforceable as an employment contract where a disclaimer exists. Mot. at 8-10. Defendant is correct. The District of Columbia Court of Appeals has explained that, although "the terms of an employer's personnel or policy manual may be sufficient to raise a jury question as to whether the manual creates contractual rights for the employee . . . , such implied contractual rights can be disclaimed, and the legal effect of such a disclaimer is, in the first instance, a question for the court to decide." Futrell v. Dept. of Labor Federal Credit Union, 816 A.2d 793, 806 (D.C. 2003) (citations and internal quotations marks omitted).

In this case, Defendant has quoted liberally from the Manual, the language of which the Court may consider on a motion to dismiss because Plaintiff has incorporated it by reference into his Complaint. See Rand v. Sec'y of the Treasury, 816 F. Supp. 2d 70, 71 (D.D.C. 2011). The Manual states, in ...

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