United States District Court, District of Columbia
L. FRIEDRICH UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
suit was reassigned to the undersigned judge on December 5,
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).
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,