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Kennedy v. Berkel & Co. Contractors, Inc.

United States District Court, District of Columbia

July 24, 2018




         Kimberly Kennedy alleges that her boss, Dwayne Bruce, repeatedly raped and abused her during her six weeks of employment with Berkel & Company Contractors. She brings twenty-four counts against Bruce and Berkel, including claims of sex-based discrimination, religious discrimination, retaliation, sexual harassment, discriminatory termination, and numerous torts. Before the Court is the defendants' Motion to Dismiss eighteen of those counts pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Dkt. 13. For the reasons that follow, the Court will grant the motion in part and dismiss seven counts.

         I. BACKGROUND

         The Court will recount the facts set forth in the complaint, which is presumed truthful at this stage. Kennedy moved to the District of Columbia in summer 2015 without employment. Compl. ¶ 7, Dkt. 1. She lived in a homeless shelter while looking for work in the construction industry. Id. Bruce, whom Berkel employed as a work-site superintendent, hired Kennedy as a skilled laborer for his work site on August 20, 2015, and she began work that day. Id. ¶¶ 9-13. Kennedy was the only female of Berkel's approximately ten employees at the work site. Id. ¶ 17.

         In Kennedy's first days of work, Bruce assigned her to the role of directing traffic, though all of the male employees were assigned to excavate a foundation. Id. ¶ 23. Kennedy attempted to assist the other employees with excavation when there was no traffic to direct, but Bruce told her to find other work. Id. Kennedy then asked if she could join the male employees because she had experience with excavation, but Bruce denied the request, reasoning that “women are distracting” and the other employees might be injured. Id. ¶¶ 24-25. Bruce instead assigned Kennedy to lay asphalt in a secluded area that was out of the other employees' view and to clean the trailer he used as his office. Id. ¶ 26. On one occasion during these first days, Bruce saw Kennedy talking with another company's construction workers and threatened to fire her if she spoke with them again. Id. ¶ 27.

         After isolating Kennedy from the other workers, Bruce began sexually harassing her. On a daily basis, he flirted with her, asked her if she was in a relationship, and commented on her curves and physical appearance. Id. ¶ 29. Kennedy, who is celibate pursuant to her religion, repeatedly told Bruce that his advances made her uncomfortable and that she is religious and does not date outside marriage. Id. ¶ 30. But Bruce continued to inquire into Kennedy's personal life and at one point asked her to be his girlfriend. Id. ¶ 31. When Kennedy repeated that she does not date outside of marriage because it is against her religion, Bruce refused to accept the rejection and claimed that he saw in her eyes that she liked him. Id.

         Once when Kennedy was cleaning the trailer alone, Bruce entered and demanded a hug, which Kennedy refused. Id. ¶ 33. The next day, Bruce hugged Kennedy without her consent and asked her how it felt. Id. Kennedy responded that the hug made her feel “not good” and guilty. Id. But Bruce continued to hug her on a near-daily basis without her consent. Id. ¶ 34. He sometimes asked her if his hugs made her feel guilty, and she responded that they did because of her religious beliefs. Id. Kennedy recounts that she felt powerless to stop Bruce because she feared losing her job and being unable to leave the homeless shelter. Id. ¶ 35.

         Bruce's harassment and assaults soon escalated. Every day, Bruce hugged Kennedy and rubbed his body against hers. Id. ¶ 37. Several times each day, Bruce approached Kennedy from behind and rubbed his erect penis on her buttocks. Id. One day, Bruce exposed his penis to Kennedy and then called her cell phone to ask her about it after she fled. Id. ¶ 40. Another day, Bruce entered the trailer, grabbed Kennedy's face, and forcibly kissed her despite her attempt to escape. Id. ¶ 38. Bruce then gave Kennedy uninvited kisses every day at work. Id. ¶ 39. On several occasions he put his hands up Kennedy's shirt and grabbed and kissed her breasts. Id.

         On September 23, 2015, Kennedy's birthday, Bruce told her that he had a present for her and insinuated with his tongue that he would perform oral sex on her. Id. ¶ 41. A few days later, Bruce entered the trailer, forcibly kissed Kennedy, unzipped his pants, and repeatedly slapped Kennedy's face with his penis. Id. ¶ 42. When Kennedy resisted Bruce's attempt to force his penis into her mouth, he became angry and forced her to perform oral sex on him. Id. Bruce again forced Kennedy to perform oral sex on him on three other days. Id. ¶ 43. On one occasion, Bruce told Kennedy not to accept a phone call while he was assaulting her because she was doing her “job.” Id. ¶ 45.

         On September 30, Bruce became angry upon seeing Kennedy make small talk with other Berkel superintendents. Id. ¶ 47-48. Bruce handed Kennedy a final paycheck and told her that despite previous plans she would not be transferred to the next work site because the other superintendents said she was “too soft.” Id. ¶¶ 49-50. When Kennedy began to cry, Bruce told her that “this is why I don't like to hire women.” Id. ¶ 49.

         Kennedy left the work site but returned later that day, hoping to change Bruce's mind. Id. ¶ 52. When Kennedy entered Bruce's trailer to ask for her job back, Bruce forced his penis into her mouth and vagina as she cried. Id. ¶ 53. After the rape, Bruce told Kennedy he would call her later about the job, and she left. Id.

         Kennedy was hired by another construction company several days later. Id. ¶ 55. Bruce told other Berkel employees that the assaults were consensual, and the Berkel employees began mocking Kennedy as promiscuous when they saw her with her new construction company. Id. ¶ 56.

         In the months after her employment at Berkel, Kennedy suffered from severe depression and suicidal thoughts. Id. ¶ 57. This prevented her from maintaining a job. After leaving the second construction company, Kennedy was hired by the Laborers' International Union of North America as an audit clerk, but she was fired because she could not focus, retain information, or learn new tasks. Id. ¶ 61. In August 2016, Kennedy's emotional trauma required hospitalization, and she was diagnosed with post-traumatic stress disorder and prescribed medication. Id. ¶ 58. At the time the complaint was filed in June 2017, Kennedy was receiving weekly treatment and still struggled daily with depression. Id. ¶ 59.

         Kennedy's suit was reassigned to the undersigned judge on December 5, 2017.


         Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a defendant to move to dismiss the complaint for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). To survive a Rule 12(b)(6) motion, a complaint must contain factual matter sufficient to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A facially plausible claim is one 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). This standard does not amount to a specific probability requirement, but it does require “more than a sheer possibility that a defendant has acted unlawfully.” Id.; see also Twombly, 550 U.S. at 557 (“Factual allegations must be enough to raise a right to relief above the speculative level.”). A complaint need not contain “detailed factual allegations, ” but alleging facts that are “merely consistent with a defendant's liability . . . stops short of the line between possibility and plausibility.” Iqbal, 556 U.S. at 678 (internal quotation marks omitted).

         Well-pleaded factual allegations are “entitled to [an] assumption of truth, ” id. at 679, and the court construes the complaint “in favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts alleged, ” Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012) (internal quotation marks omitted). The assumption of truth does not apply, however, to a “legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678 (quotation marks omitted). An “unadorned, the defendant-unlawfully-harmed-me accusation” is not credited; likewise, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. Ultimately, ...

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