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Perisic v. Kim

United States District Court, District of Columbia

October 25, 2019

MARIA PERISIC Plaintiff,
v.
JIM YONG KIM, et al., Defendants.

          MEMORANDUM OPINION

          Emmet G. Sullivan United States District Judge

         Plaintiff Maria Perisic (“Ms. Perisic”), proceeding pro se, filed this action in the Superior Court of the District of Columbia (“Superior Court”) against four officials of the World Bank Group (“World Bank Defendants”) and Cigna (together with the World Bank Defendants, “Defendants”). The World Bank terminated Ms. Perisic because her position became redundant. She later challenged her termination through an internal review process. The World Bank Administrative Tribunal (“Tribunal”) upheld the redundancy decision, but the Tribunal ordered the World Bank to pay Ms. Perisic four months' salary and attorney's fees due to a procedural flaw. Dissatisfied, Ms. Perisic asserts various claims against the World Bank Defendants, alleging wrongful termination, discrimination, theft of intellectual property, fraudulent misconduct, and mismanagement of insurance, pension, workers' compensation, and disability benefits.

         Cigna, with the consent of the World Bank Defendants, removed the case to this Court pursuant to 28 U.S.C. §§ 1331, 1441, and 1446 based on Ms. Perisic's claims that the Defendants mishandled the World Bank Group's medical insurance plan, denied her benefits under that plan, and failed to comply with the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001 et seq. Defendants separately move to dismiss the Complaint, and Ms. Perisic moves to remand this case to the Superior Court. Upon careful consideration of the parties' submissions, the applicable law, and the entire record herein, the Court GRANTS IN PART and DENIES IN PART the World Bank Defendants' Motion to Dismiss, GRANTS IN PART and DENIES IN PART Cigna's Motion to Dismiss, DENIES Ms. Perisic's Motion to Remand, and DISMISSES WITHOUT PREJUDICE this action.

         I. Background

         A. Factual Background

         The following facts-drawn from the Complaint and documents incorporated by reference therein-are assumed to be true. See Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1129 (D.C. Cir. 2015). Between 1994 and 2014, Ms. Perisic worked for the World Bank and the International Finance Corporation (“IFC”), a member of the World Bank Group.[1] See Compl., ECF No. 1-1 at 3 ¶ 4; see also World Bank Defs.' Mot. to Dismiss, ECF No. 7 at 5.[2] After completing the World Bank's Young Professional Program, Ms. Perisic began working for the IFC in 1995. Compl., ECF No. 1-1 at 3 ¶ 4, 6 ¶ 9. Ten years later, she moved to the World Bank, id. at 3 ¶ 4, where she earned promotions, id. at 7 ¶ 11. In November 1995, Ms. Perisic went on leave after suffering a stroke, and she returned to work in March 1996. Id. at 6 ¶ 9. After her return, she served in different positions and departments, ending in the South Asia Region's Agriculture Unit. See id. at 7 ¶ 11.

         Before moving to the Agriculture Unit, Ms. Perisic claims that one of her managers was “trying to push [her] out of his unit for reasons which were never explained[.]” Id. at 7 ¶ 10. But she acknowledges “the fact that [she] was aware that [her] job capabilities were not as good as they previously were.” Id. According to Ms. Perisic, her manager and the human resources officer “tried to push [her] out of [the] [Agriculture] [U]nit” in 2013. Id. at 7 ¶ 12. She alleges that her manager refused to give her work and blocked her efforts to generate work. Id. at 8 ¶ 12 n.8. As a result, Ms. Perisic experienced stress, dizziness, and weakness in her legs. Id. at 8 ¶ 12. She eventually applied for short-term disability after missing twenty-one days of work due to an illness. Id. at 8 ¶¶ 12, 12 n.9. At some point, Ms. Perisic attended a performance evaluation meeting with her manager, and the manager told her that her position had become redundant. Id. at 8 ¶ 12.

         On August 28, 2013, Ms. Perisic received a Notice of Redundancy. Id. at 8 ¶ 13. It was dated August 16, 2013 and signed by Philippe Le Houérou, the World Bank's Regional Vice President for South Asia. Id. The Notice states, in relevant part, that “this confirms your conversation with [the manager and the human resources officer] in which you were informed that . . . I have determined that your employment has become redundant with effect September 1, 2013” and “[s]hould the job search efforts prove unsuccessful, on March 1, 2014 your employment with the [World] Bank will be terminated . . . .” Id. at 8-9 ¶ 13. The Notice also states that “[u]pon termination, you will be entitled to severance payments . . . and other benefits for which you are eligible.” Id. at 9 ¶ 13. On February 28, 2014, the World Bank terminated her employment. Id. at 3 ¶ 4, 2 ¶ 2 n.2. Thereafter, Ms. Perisic retained an attorney and submitted a request for internal review. Id. at 9 ¶ 14. Her attorney later filed an application on her behalf to the Tribunal in 2015. See Id. The year-long process ended with the Tribunal's decision. Id. at 9 ¶ 14 n.11; see also Ex. A, World Bank Defs.' Mot. to Dismiss, ECF No. 7 at 22-59 [hereinafter “Tribunal's Decision”].

         In 2016, the Tribunal determined that the World Bank properly classified Ms. Perisic's position as redundant because there was a decline in her work program, resulting in underemployment. Tribunal Decision, ECF No. 7 at 44 ¶ 86, 45 ¶ 89. The Tribunal concluded that she failed to present a prima facie case for age and disability discrimination because the redundancy decision predated her short-term disability leave. Id. at 48 ¶¶ 99-100. The Tribunal also concluded that Ms. Perisic had received advance notice of the need to find alternative employment, but the World Bank had failed to provide her with a written explanation of the rationale for the redundancy decision and a copy of the redundancy notice with the specific sub-section of the Bank's applicable staff rules. Id. at 49-50 ¶¶ 104-07. Finding that the “procedural flaw entitle[d] [her] to some compensation, ” id. at 50 ¶ 107, the Tribunal ordered the World Bank to pay Ms. Perisic four months' salary and her attorney's fees in the amount of $20, 000. Id. at 59; see also Compl., ECF No. 1-1 at 9 ¶ 14 (alleging that the World Bank misstated that Ms. Perisic received $171, 387).

         Ms. Perisic characterized that outcome as a “partial victory” in 2016. Compl., ECF No. 1-1 at 27 ¶ 61. She later reported to the World Bank that documentation concerning the redundancy decision contained a fraudulent signature, and the World Bank conducted an internal review, determining that her concerns were unfounded because the signature was authentic. Id. at 27-28 ¶ 63. Satisfied with that review, Ms. Perisic became unsatisfied in December 2016 with her health insurance, pension payments, as well as claims for workers' compensation and disability benefits. Id. at 28 ¶ 65. She receives pension payments from the World Bank and participates in its “Retiree Medical Insurance Plan.” Id. at 2 ¶ 2 n.3. She also received a severance payment from the World Bank. Id. at 27 ¶ 62.

         On January 1, 2017, Cigna and Eye Med replaced Aetna as the administrators of the World Bank's dental and vision insurance plans for employees and retirees. Compl., ECF No. 1-1 at 28-29 ¶¶ 67-68; see also Pl.'s Ex. 1, ECF No. 19-1 at 2. According to Ms. Perisic, “[t]he [World] Bank did not have [her] consent to enroll [her] in the Cigna dental plan[, ]” and she had “no possibility to get out of the dental plan” so she “stay[ed] in the medical plan.” Pl.'s Reply & Opp'n (“Pl.'s Opp'n”), ECF No. 15 at 13 n.12. On April 6, 2017, a periodontist-an out-of-network provider-performed dental work on Ms. Perisic, and Cigna denied her claim for that work. Compl., ECF No. 1-1 at 32-33 ¶¶ 74-75. After her appeal, Cigna upheld its decision in September 2017. Id. at 33 ¶ 74. Ms. Perisic continued to have “several conversations with Cigna customer service representatives, ” and she communicated with representatives in Cigna's corporate headquarters and legal department via telephone and mail through May 2, 2018. Id. at 36 ¶ 81. Shortly thereafter, litigation ensued.

         B. Ms. Perisic's Allegations

         On July 26, 2018, Ms. Perisic filed a lawsuit in the Superior Court against the four World Bank Defendants-Dr. Jim Yong Kim, Philippe Le Houérou (“Mr. Houérou”), Snezana Stoiljkovic (“Ms. Stoiljkovic”), and Frank Heemskerk (“Mr. Heemskerk”)-and Cigna. See generally Compl., ECF No. 1-1 at 1.[3]Seeking a judgment against Defendants in the sum of $10 million, id. at 37, Ms. Perisic asserts a laundry list of allegations, and the precise allegations are not clear from the Complaint. She alleges that Dr. Kim dismissed her. Id. at 2 ¶ 2. She claims that his decision was “unethical” and “not in the interest of efficient administration.” Id. Ms. Perisic challenges “the consequent theft of [her] ‘intellectual property' and deprivation of the right to a fair ‘trial', fraudulent misconduct, and discrimination done by staff of the World Bank and the [IFC, ]” which have “seriously damaged the financial situation and the well-being of [her] family and [herself].” Id. at 2-3 ¶ 2. Ms. Perisic also alleges that she applied for positions where the hiring manager was Ms. Stoiljkovic, id. at 15 ¶ 22 n.16, and that she met with Mr. Heemskerk to discuss her pending termination, id. at 21 ¶ 40. For these allegations, the Complaint fails to cite or reference specific statutes or regulations.

         Turning to the allegations concerning her claimed benefits, Ms. Perisic appears to assert that the World Bank Defendants and Cigna: (1) failed to adequately manage her enrollment in the World Bank's dental retiree medical insurance plan; (2) mismanaged her health insurance and pension payments; and (3) “[mis]handle[d] the group health plan's compliance with ERISA[.]” Id. at 3 ¶ 3. Specifically, she alleges that Defendants did not include her stroke in 1995 in their records that resulted in her vision disability, and that Cigna declined to cover her blood work in the amount of $575 as part of her implant surgery in 2017. Id. According to Ms. Perisic, the dental plan is part of the World Bank Group's Retiree Medical Insurance Plan, which is “supposed to be governed by ERISA, [but it] is not.” Id. at 3 ¶ 3 n.4; see also Id. at 34 ¶ 77 (alleging that “I understand that the Bank is required to respect ERISA”). Indeed, Ms. Perisic alleges that she has a “right to bring legal action under ERISA, ” id. at 34 ¶ 77, based on her own research and her conversations with representatives from Cigna and the United States Department of Labor, see id.

         C. Procedural History

         On August 30, 2018, Cigna timely removed the action from the Superior Court to this Court on the basis of Ms. Perisic's claims for benefits under the World Bank's group insurance plan allegedly governed under ERISA. See 28 U.S.C. § 1446(b); see also Notice of Removal, ECF No. 1 at 2 ¶ 3 (stating that the notice was filed within thirty days of receipt of the Complaint). Cigna did not concede that the World Bank's retiree dental plan is subject to ERISA. Notice of Removal, ECF No. 1 at 2 n.3. And Cigna noted that Ms. Perisic used the trade name, which “is not a juridical entity capable of being sued.” Id. at 2 n.1. The World Bank Defendants consented to the removal. Ex. 5, World Bank Defs.' Consent to Removal, ECF No. 1-5 at 1. The World Bank did not waive its immunities from process and suit derived from the International Organizations Immunity Act (“IOIA”), 22 U.S.C. § 288 et seq. Id.

         Defendants move separately to dismiss Ms. Perisic's Complaint in its entirety. The World Bank Defendants move to dismiss the wrongful termination and employment-related claims for lack of subject-matter jurisdiction under Rule 12(b)(1), arguing that the World Bank Defendants are immune from suit. World Bank Defs.' Mot. to Dismiss, ECF No. 7 at 1, 10-14. In the alternative, the World Bank Defendants move to dismiss the employment discrimination and dental and vision benefits claims in the Complaint for failure to state a claim under Rule 12(b)(6). Id. at 1, 14-17. The World Bank Defendants contend that the group benefits plan is a “governmental plan” exempt from ERISA. Id. at 17. Cigna moves to dismiss on two primary grounds: (1) dismissal is warranted under Rule 12(b)(5) for insufficient service of process; and (2) Ms. Perisic fails to state a plausible claim for relief as to Cigna's administration of her dental benefits pursuant to Rule 12(b)(6). Def.'s Mem. of P. & A. in Supp. of Def.'s Mot. to Dismiss (“Def.'s Mem.”), ECF No. 8-1 at 1-3.[4]

         Ms. Perisic seeks to remand this case to the Superior Court because “[her] case is about theft, discrimination, and mismanagement of [her] health insurance . . . by [D]efendants” and her case “is not about ERISA.” Pl.'s Mot. to Remand, ECF No. 9 at 1 (styled as “Motion”).[5] Ms. Perisic argues that the lawyers representing Defendants have engaged in an “orchestrated effort to intimidate [her].” Id. at 6. She urges this Court to order “the attorneys to stop their malicious and distressful behavior[, ]” and “[D]efendants to stop their misconduct and wrongdoing.” Id. at 7. She seeks $6.5 million in “intangible damages” and $6.5 million in punitive damages. Id. Defendants oppose her motion. See Def.'s Opp'n, ECF No. 11 at 1-3; see also World Bank Def.'s Opp'n, ECF No. 13 at 1-5.

         On September 5, 2019, the Court ordered supplemental briefing on the issue of whether the Court has subject-matter jurisdiction if the World Bank's plan is a “governmental plan” exempt from ERISA. See Min. Order of Sept. 5, 2019. The Court, sua sponte, stayed this action pending the resolution of the jurisdictional issue. Id. The supplemental briefing is now complete, and the motions are ripe for the Court's adjudication.

         II. Legal Standard

         A. Motion to Remand

         A civil action may be removed from state court to a federal district court only if the federal district court has original subject-matter jurisdiction over the case. 28 U.S.C. § 1441(a). The Superior Court is considered a state court for removal purposes. Id. § 1451(a). “When it appears that a district court lacks subject matter jurisdiction over a case that has been removed from a state court, the district court must remand the case . . ., and the court's order remanding the case to the state court whence it came ‘is not reviewable on appeal or otherwise.'” Republic of Venezuela v. Philip Morris Inc., 287 F.3d 192, 196 (D.C. Cir. 2002) (citing 28 U.S.C. § 1447(c); quoting id. § 1447(d)). “Because of the significant federalism concerns involved, this Court strictly construes the scope of its removal jurisdiction.” Downey v. Ambassador Dev., LLC, 568 F.Supp.2d 28, 30 (D.D.C. 2008). “The party seeking removal of an action bears the burden of proving that jurisdiction exists in federal court.” Id.

         “Common bases for subject matter jurisdiction in a federal district court are federal question jurisdiction . . . and diversity jurisdiction . . . .” Bush v. Butler, 521 F.Supp.2d 63, 70 (D.D.C. 2007). For federal question jurisdiction, a defendant may seek removal on the grounds that the case “aris[es] under the Constitution, laws, or treaties of the United States.” Apton v. Volkswagen Grp. of Am., Inc., 233 F.Supp.3d 4, 11 (D.D.C. 2017) (quoting 28 U.S.C. § 1331). “The presence or absence of federal-question jurisdiction is governed by the ‘well-pleaded complaint rule,' which provides that federal jurisdiction exists only when a federal question is presented on the face of the complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). “[I]t is now settled law that a case may not be removed to federal court on the basis of a federal defense, including the defense of pre-emption, even if the defense is anticipated in the plaintiff's complaint, and even if both parties concede that the federal defense is the only question truly at issue.” Id. at 393.

         “A challenge to subject matter jurisdiction may be raised on a motion to remand by the parties.” Nat'l Consumers League v. Bimbo Bakeries USA, 46 F.Supp.3d 64, 69 (D.D.C. 2014) (citing 28 U.S.C. § 1447(c)). The Court must remand the case to the state court on the basis of a defect in the removal procedures. 28 U.S.C. § 1447(c). Remand is mandatory “[i]f at any ...


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