Asare v. Loews Hotels ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BISMARCK ASARE, et al.,
Plaintiffs,
v. Civil Action No. 14-347 (JEB)
LM-DC HOTEL, LLC, et al.,
Defendants.
AMENDED MEMORANDUM OPINION
Plaintiffs Bismarck Asare, Antonio Brown, and Ana Velasquez worked in the front
office of the Madison Hotel here in the District until January 2013, when the hotel’s management
changed hands and they were terminated. Aggrieved by this abrupt turn of events, Asare and his
coworkers sued the owner of the hotel, the company that managed it while they worked there,
and the one that took over in January 2013, claiming racial discrimination in violation of the
D.C. Human Rights Act and 42 U.S.C. § 1981, as well as intentional and negligent infliction of
emotional distress. Plaintiffs then amended their Complaint in April of this year to add to and
strengthen their claims, and Defendants now move to dismiss. Although some of Plaintiffs’
allegations are patently deficient, others pass the relatively undemanding Rule 12(b)(6) bar. As a
result, the Court will grant Defendants’ Motion in part and deny it in part.
I. Background
Viewing the facts in the Amended Complaint as true, which is required at this stage, the
Court finds that Bismarck Asare and Antonio Brown, both black males, and Ana Velasquez, a
Hispanic female, were terminated from their employment at the Madison Hotel on January 29,
2013. See Am. Compl., ¶¶ 4-6. Each of the three Plaintiffs had worked at the Madison for at
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least four years. See id. Defendant LM-DC Hotel, meanwhile, had purchased the hotel in
November 2012, and it retained Defendant Destination Madison Management and, subsequently,
Defendant Loews M-DC Operating Company – over which it had effective control – to manage
operations. See id., ¶¶ 8, 11-12.
Moving swiftly after the November purchase, Defendants worked together to institute a
reorganization plan that would result in the termination of multiple black hotel employees, a
process one Madison employee allegedly referred to as “get[ting] rid of all the trash.” Id., ¶¶ 12,
20. Consistent with that goal, Plaintiffs were indeed fired, while certain white employees with
less experience – including “several foreigners” – were retained and even promoted. See id., ¶¶
12, 15. Asare was replaced by a white person from Germany, Velasquez by a white person from
Spain, and Brown by a white person of unknown, possibly foreign, origin. See id., ¶¶ 16-18.
Meanwhile, someone placed a poster in the break room that encouraged employees to “Party like
a rockstar, work like a slave.” Id., ¶ 20.
Prior to the culmination of Defendants’ purported scheme, Brown had complained in
writing to a superior – though it is not clear precisely whom – about racial discrimination, and
someone had complained at least once to the “management team” about the “trash” comments.
Id., ¶¶ 21-22 As a result of all of these slights, Plaintiffs filed this suit, ultimately – after
amending their Complaint once – espousing a number of legal theories: (1) Defendants
intentionally or negligently caused them emotional distress; (2) Defendants mistreated and
ultimately fired them because of their race in violation of 42 U.S.C. § 1981 and the D.C. Human
Rights Act; and (3) Defendants retaliated against Brown for activity that is protected under those
same statutes. Id., ¶¶ 24-39. Defendants have now moved to dismiss all of those claims.
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II. Legal Standard
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of an action where a
complaint fails “to state a claim upon which relief can be granted.” In evaluating Defendants’
Motion to Dismiss, the Court must “treat the complaint's factual allegations as true . . . and must
grant plaintiff ‘the benefit of all inferences that can be derived from the facts alleged.’” Sparrow
v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (quoting Schuler v. United
States, 617 F.2d 605, 608 (D.C. Cir. 1979)) (citation omitted); see also Jerome Stevens Pharms.,
Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). The notice-pleading rules are “not meant to
impose a great burden upon a plaintiff,” Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005),
and he 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, id. 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, 556 U.S. 662, 678 (2009)
(quoting Twombly, 550 U.S. at 570). Plaintiffs must put forth “factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. The Court need not accept as true “a legal conclusion couched as a factual allegation,” nor an
inference unsupported by the facts set forth in the Complaint. Trudeau v. FTC, 456 F.3d 178,
193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986) (internal quotation
marks omitted)). Although a plaintiff may survive a 12(b)(6) motion even if “recovery is very
remote and unlikely,” the facts alleged in the complaint “must be enough to raise a right to relief
above the speculative level.” Twombly, 550 U.S. at 555-56 (citing Scheuer v. Rhodes, 416 U.S.
232, 236 (1974)).
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Plaintiffs claim in their Opposition that Defendants have converted their Motion to
Dismiss into one for summary judgment by relying on a document that is attached to their
Motion and is therefore outside of the “four corners” of the Complaint – namely, an operating
agreement that governed LM-DC’s relationship with the hotel and may inform the Court’s
analysis of whether LM-DC qualifies as Plaintiffs’ employer. See Opp. at 4-5. As the Court
ultimately agrees with Plaintiffs that LM-DC is a proper Defendant in this suit – even after
considering the operating agreement – it need not linger over this dispute.
III. Analysis
In moving to dismiss, Defendants offer even more arguments than Plaintiffs provided
theories of liability – to wit: (1) Plaintiffs failed to state a claim for intentional or negligent
infliction of emotional distress; (2) LM-DC should be dismissed from the suit because it was not
Plaintiffs’ employer; (3) Brown failed to state a claim for retaliation; (4) Velasquez failed to state
a claim for race discrimination; and (5) the entire suit should be dismissed because Plaintiffs
failed to properly serve Defendants.
In the course of briefing, Plaintiffs never address the negligent-infliction argument, and
they essentially concede that their retaliation claim is deficient. See Opp. at 7-8 (discussing IIED
but not NIED); id. at 9 (admitting that Brown’s claims “should be more artfully plead [sic]” and
asking only that the Court reserve judgment at this time). “[A] litigant has the obligation to spell
out its arguments squarely and distinctly, or else forever hold its peace,” Dinkel v. MedStar
Health Inc., 880 F. Supp. 2d 49, 58 (D.D.C. 2012) (internal quotation marks omitted), so where a
party “fail[s] to address . . . [certain] positions . . . , the Court will treat those claims as
conceded.” Hopkins v. Women’s Div., Gen. Bd. of Global Ministries, 238 F. Supp. 2d 174, 178
(D.D.C. 2002). This is just such an instance.
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Defendants, the Court notes, would prevail on both negligent infliction and retaliation
even if Plaintiffs had not given up the ship. Negligent infliction, first, is a cause of action based
on physical harm, and although “[a] plaintiff need not show actual physical impact” to prove that
a defendant negligently caused her distress, “she must show that she actually feared for her
[physical] safety as a result of [the defendant’s] conduct.” Hollis v. Rosa Mexicano DC, LLC,
582 F. Supp. 2d 22, 27 (D.D.C. 2008). Plaintiffs fail to make any allegation of physical danger –
they do not argue, for example, that they feared for their safety on account of their supervisors’
penchant for racial slurs. Nor have they satisfied the second sine qua non of the negligent-
infliction cause of action: that Defendants’ conduct was outrageous. See Minch v. District of
Columbia, 952 A.2d 929, 941-42 (D.C. 2008). As a result, this claim fails.
The retaliation claim – pressed only by Brown – is similarly infirm for two reasons.
First, Brown has not sufficiently alleged that he engaged in any protected activity, see Lemmons
v. Georgetown Univ. Hosp., 431 F. Supp. 2d 76, 91 (D.D.C. 2006), pointing out nothing more
than that he “complained in writing to Defendant about racial discrimination.” Am. Compl., ¶
21. Even if he had done so, moreover, his allegations do not allege anything approaching a
causal connection between his internal complaint and his termination. See Gregg v. Hay Adams
Hotel, 942 F. Supp. 1, 8 (D.D.C. 1996). All that is alleged is that Brown complained about
discrimination in 2011, about a year and a half before his employment with the hotel came to an
end. The temporal proximity between a discrimination complaint and an adverse employment
action, however, must be “very close” to show a causal connection where no direct evidence is
present. See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001) (citing with
approval cases finding three to four months too long to demonstrate causal connection).
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Eighteen months is far too long of a delay, and, as a result, Brown could not prevail on his
retaliation count.
Defendants, for their part, allowed that Plaintiffs have done enough to satisfy the federal
service requirements. As a result, all that is still at issue are Defendants’ arguments regarding
intentional infliction of emotional distress, LM-DC’s role in the terminations, and Velasquez’s
status as a Plaintiff in the case. The Court will address each in turn.
A. Intentional Infliction of Emotional Distress
The Court begins with intentional infliction of emotional distress. IIED is a particularly
narrow cause of action that applies only when the alleged tortfeasor’s conduct is “so outrageous
in character, and so extreme in degree, as to go beyond all possible bounds of decency and [is]
regarded as atrocious, and utterly intolerable in a civilized community. Sere v. Group
Hospitalization, Inc., 443 A.2d 33, 37 (D.C. 1982). Unsurprisingly, courts have been careful to
restrict the reach of the doctrine. See Harvey v. Strayer Coll., 911 F. Supp. 24, 27 (D.D.C. 1996)
(“[T]he law does not, and doubtlessly should not, impose a general duty of care to avoid causing
mental distress.”). After all, “in our own interest and that of society, we need the privilege of
being careless whether we inflict emotional distress on our neighbors.” Id. (quoting Clark v.
Associated Retail Credit Men, 105 F.2d 62, 64 (D.C. Cir. 1939)). The allegations in Plaintiffs’
Complaint – consisting solely of run-of-the-mill discrimination claims – fail even to approach
this demanding standard.
To prevail on an IIED claim, Plaintiffs must prove: (1) extreme and outrageous conduct
that (2) intentionally or recklessly (3) caused them to suffer severe emotional distress. See
Duncan v. Children’s Nat’l Med. Ctr., 702 A.2d 207, 211 (D.C. 1997). This standard does not
become more relaxed merely because Defendants were Plaintiffs’ employers. Indeed, if
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anything, a plaintiff faces an even higher bar when suing his employer. See, e.g., Kerrigan v.
Britches of Georgetowne, Inc., 705 A.2d 624, 628 (D.C. 1997) (“In the employment context, we
traditionally have been demanding in the proof required to support an intentional infliction of
emotional distress claim.”). Liability does not extend to “mere insults, indignities, threats,
annoyances, petty oppressions, or other trivialities.” Waldon v. Covington, 415 A.2d 1070, 1076
(D.C. 1980) (quoting Restatement (Second) of Torts § 46 (1965)).
All Plaintiffs have alleged here is that they were called “trash” on at least two occasions
(apparently not even to their face), that an offensive poster appeared in their workspace, that they
were fired from their jobs, and that they were replaced by non-minorities. Courts have
repeatedly held that conduct more egregious than these “mere insults” and employment-related
slights does not meet the exacting IIED bar. See, e.g., Kerrigan, 705 A.2d at 628 (no IIED where
employer targeted plaintiff for sexual-harassment investigation, manufactured evidence, and
leaked information about investigation to other employees); Hoffman v. Hill & Knowlton, Inc.,
777 F. Supp. 1003, 1005 (D.D.C. 1991) (conduct not outrageous where employer stated false,
pretextual reasons for dismissing employee and spread rumors about him); Crowley v. N. Am.
Telecomm’ns Ass’n, 691 A.2d 1169, 1171-72 (D.C. 1997) (allegations that supervisor refused to
include plaintiff in meetings, treated him in hostile manner, and eventually terminated him were
insufficient as matter of law). The Court, accordingly, will dismiss Plaintiffs’ IIED claim.
B. LM-DC’s Role
Defendants next contend that the claims against one of their lot, LM-DC, should be
dismissed, as that entity was not actually Plaintiffs’ employer and thus could not have
discriminated against them. More specifically, they argue that LM-DC, which owns the hotel,
contracts with Loews M-DC Operating company, LLC, to handle management. It is Loews, they
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argue, that operates the hotel and that employed Plaintiffs when they worked there. See Mot. at
12 (citing Mot., Exh. A (Declaration of Eric Walnoha), ¶ 9 (describing the Hotel Management
Agreement, which states that “[e]ach Hotel employee shall be the employee of [Loews]”). LM-
DC, in contrast, they argue, does not make and never has made decisions regarding anyone’s
employment at the hotel, and so it is not a proper defendant in this case. Id.This contention, however, is a step too far. There is no doubt that Plaintiffs’ allegations
regarding LM-DC’s role are vague – they refer to LM-DC and Loews M-DC collectively in the
Complaint, for example, see Am. Compl., ¶ 12 – but this can be chalked up to the confusing
nature of the companies’ relationship. Without the benefit of discovery – or even of the Hotel
Operating Agreement – the Court cannot hold against Plaintiffs the fact that they conflated LM-
DC and L(oews) M-DC, and it will therefore look past their failure to allege any particular facts
to substantiate the argument that LM-DC was involved in the challenged employment decisions.
In fact, the confusion suggests that discovery is appropriate, as it will allow Plaintiffs to clarify
the argument, pled however inartfully in their Complaint, that LM-DC – the apparent owner of
the hotel – participated in or ratified the decision to terminate Plaintiffs on the basis of their race.
See Am. Compl., ¶¶ 3, 10-19.
The cases Defendants cite to support their argument on this front do not call that
conclusion into question. Indeed, each stands only for the proposition that someone who is not
involved in a plaintiff’s employment cannot be held responsible for violating employment laws.
The Court finds that observation uncontroversial as far as it goes, but none of the cases cited has
anything to say about this specific situation – namely, where one Defendant was part of the same
corporate structure as the direct employer and may have had some say – either contractual or de
facto – in the challenged employment decisions. See Oland v. Forever Living Prods. Int’l Inc.,
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No. 09-8039, 2009 WL 5128658, at *3 (D. Ariz. Dec. 17, 2009) (dismissing defendant as it “was
not [plaintiff’s] employer and thus cannot have violated the [relevant employment laws]”); Braun
v. Rothschild Registry Int’l, No. 87-7743, 1990 WL 106814, at *2 (S.D.N.Y. July 27, 1990)
(dismissing defendant because it “was not [plaintiff’s] employer and was therefore the wrong
defendant”). In fact, a defendant need not be the plaintiff’s direct employer to be liable for
discrimination if it participated in or ratified the discriminatory action. See, e.g., St. Jean v.
Orient-Express Hotels Inc., 963 F. Supp. 2d 301, 307 (S.D.N.Y. 2013) (holding that “[t]he
definition of ‘employer’ has been construed liberally for Title VII purposes and does not require
a direct employer/employee relationship” and that Title VII claims do not turn on “whether the
party may technically be described as an ‘employer’ . . . at common law”) (internal quotation
marks omitted). Plaintiffs insinuate that that may be the case here – that LM-DC directors may
have worked for Loews as well, or that they may have had some power over final employment
decisions, for example – so their claim against LM-DC may go forward.
C. Velasquez
Defendants, finally, submit that Velasquez fails to state a plausible race-discrimination
claim, as the Complaint refers primarily to discrimination against blacks, whereas Velasquez is
Hispanic. See Mot. at 16 (citing Am. Compl., ¶¶ 12, 14, 20, 32). Plaintiffs’ Complaint,
however, does allege that Defendants treated their “non-white” employees in a discriminatory
manner, see Am. Compl., ¶¶ 19-20, and it does identify sufficient facts to support the claim that
Velasquez – and not just the black Plaintiffs – was herself the subject of discrimination on the
basis of her race. See, e.g., id., ¶ 19 (“Defendants’ purported ‘reorganization’ constituted a
pretext for its intentional, racially biased termination of Plaintiffs and other non-White
employees.”) (emphasis added), ¶ 20 (hotel manager “stated that she was going to ‘get rid of all
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of the trash,’ apparently referring to Plaintiffs and other terminated employees”) (emphasis
added). Clumsy references to “African Americans” or “blacks” do not change that fact. In other
words, this is not a case, as Defendants would have it, where Plaintiffs “mention[ed] race,
without factual allegations demonstrating that any discrimination was racially-motivated.” Mot.
at 16 (quoting Ndodji v. InterPark Inc., 768 F. Sup. 2d 264, 274 (D.D.C. 2011) (dismissing
Section 1981 claim where plaintiff alleged mistreatment based on national origin and only
mentioned his race)). Here, instead, Plaintiffs alleged facts to support a claim of racial
discrimination and simply forgot to mention Velasquez’s specific racial background in two
discrete paragraphs. In these circumstances, she must be allowed to press her claim.
IV. Conclusion
For the foregoing reasons, the Court will grant Defendants’ Motion to Dismiss in part and
deny it in part. All three Plaintiffs may proceed against all three Defendants on their claims of
racial discrimination under both the DCHRA and § 1981, but the Court will dismiss their
negligent-infliction, intentional-infliction, and retaliation counts. A contemporaneous Order to
that effect will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: July 7, 2014
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