McKnight-nero v. Walmart, Inc. ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
CHEKETA MCKNIGHT-NERO, )
)
Plaintiff, )
)
v. ) Case No. 20-cv-1541 (APM)
)
WALMART, INC., )
)
Defendant. )
_________________________________________ )
MEMORANDUM OPINION
I. INTRODUCTION
Plaintiff Cheketa McKnight-Nero filed this putative class action lawsuit against Defendant
Walmart, Inc. (“Walmart”) after she was denied access to a Washington, D.C., Walmart location’s
exclusive shopping hour for customers with compromised health during the COVID-19 pandemic.
The Complaint alleges violations of (1) the Americans with Disabilities Act of 1990, 42 U.S.C.
§§ 12101 et seq. (“ADA”); (2) the District of Columbia Human Rights Act, D.C. Code §§ 2-
1401.01 et seq. (“DCHRA”); as well as (3) negligent retention, training, and supervision.
Defendant has moved to dismiss Plaintiff’s Complaint in its entirety under Federal Rules of Civil
Procedure 12(b)(6) and 12(b)(1) for failure to state a claim upon which relief can be granted and
for lack of subject matter jurisdiction.
Having carefully considered the Complaint and the parties’ arguments, for the reasons that
follow, the court grants Defendant’s Motion to Dismiss.
II. BACKGROUND
A. Factual Background
Plaintiff Cheketa McKnight-Nero is a resident of Maryland who suffers from various
health conditions, including diabetes, high blood pressure, and a rare blood cancer. See Compl.,
ECF No. 1 [hereinafter Compl.], ¶ 19. She alleges that on May 12, 2020, she traveled to the
Walmart store located at 5929 Georgia Avenue Northwest in Washington, D.C., for the purpose
of taking advantage of the store’s “exclusive shopping” hour for “Seniors and Customers with
Compromised Health” during the “COVID-19 public health crisis.” Id. ¶ 20. According to
Plaintiff, the store “provides exclusive shopping periods between the time of 6:00 a.m. to 7:00 a.m.
[on Tuesdays and Thursdays] for Senior citizens over the age of 65 and people who have an
impaired immune system, or identify as ‘immunocompromised,’” id. ¶¶ 8, 21, to “reduc[e] their
risk of contracting COVID-19 during regular business hours,” id. ¶ 20.
Upon arriving at the entrance to the store at approximately 6:20 a.m., Plaintiff alleges “she
was prohibited from entering . . . by a contracted security guard from Brosnan Security Solutions,”
a company with which Walmart contracts to “perform security services” at that particular location.
Id. ¶¶ 22–23. Plaintiff recounts two different reasons why the guard refused her entrance to the
store despite explaining to him that “she was an individual with a compromised immune system,”
id. ¶ 24, and that it would be her only opportunity “to shop for essential items that she needed for
the week,” id. ¶ 26. She first alleges that the guard “did not believe” she had compromised health.
Id. ¶ 24. Additionally, the guard later stated that he was instructed by Walmart to allow only
“‘seniors’ to enter the store between 6:00 a.m. and 7:00 [a].m.” Id. ¶ 29. In either event, Plaintiff
was denied entry.
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At that point, Plaintiff says, she asked to speak to the store manager. See id. ¶ 25. When
the guard refused to call for a manager, Plaintiff called the emergency telephone line of the police
station adjacent to the store, and within minutes, three officers from the D.C. Police Department
arrived at the scene. Id. ¶ 27. Plaintiff alleges that the police officers also asked the guard to call
a store manager, but the manager never arrived. Id. ¶ 30. By that time, it was after 7:00 a.m. and
the end of the exclusive shopping hour, so the guard permitted Plaintiff to enter the store. Id. ¶ 31.
Plaintiff maintains that she was unable to shop, however, “due to the stress and anxiety of shopping
with the public.” Id. ¶ 32.
B. Procedural Background
Plaintiff filed the Complaint in this action on June 11, 2020. See Compl. The Complaint
asserts seven counts: Counts 1 and 2 allege “Public Accommodations Violation” and “Disability
Discrimination” under the DCHRA, see id. ¶¶ 33–38; Count 3 alleges “Disability Discrimination”
under the ADA, see id. ¶¶ 39–41; Count 4 alleges “Negligent Retention, Training and
Supervision,” see id. ¶¶ 42–45; Counts 5 and 6 allege “Disparate Impact – Public Accommodation
Discrimination” and “Disparate Impact – Disability Discrimination” under the DCHRA, see id.¶¶ 46–55; and Count 7 alleges “Disparate Impact – Disability Discrimination” under the ADA, see
id. ¶¶ 56–60. Defendant has moved to dismiss Counts 3 and 7 for lack of standing, see Mot. to
Dismiss, ECF No. 13 [hereinafter Def.’s Mot.], at 12–14, and every Count for failure to state a
claim, see id. at 4–12, 14–17.
II. LEGAL STANDARD
A. Federal Rule of Civil Procedure 12(b)(1)
A motion to dismiss for lack of standing is properly considered under Rule 12(b)(1), as
standing goes to the court’s subject matter jurisdiction. M.J. v. Dist. of Columbia, 401 F. Supp. 3d
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1, 7–8 (D.D.C. 2019). When reviewing a motion to dismiss for lack of subject matter jurisdiction,
a court must “assume the truth of all material factual allegations in the complaint and ‘construe the
complaint liberally, granting [the] plaintiff the benefit of all inferences that can be derived from
the facts alleged.’” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011)
(quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)). Plaintiff bears the burden of
establishing by a preponderance of the evidence that the court has subject matter
jurisdiction. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). “If the court determines at any
time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed. R. Civ. P.
12(h)(3).
B. Federal Rule of Civil Procedure 12(b)(6)
To survive a motion to dismiss under Rule 12(b)(6), “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 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.” Id. 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. “Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Bradley v. D.C. Pub. Sch., 87 F. Supp. 3d 156, 160
(D.D.C. 2015).
IV. DISCUSSION
The court begins its discussion with Plaintiff’s ADA claims. The court then turns to
Plaintiff’s DCHRA claims and ends with a discussion of her negligent retention, training, and
supervision claim.
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A. Plaintiff’s ADA Claims (Counts 3 and 7)
Plaintiff’s ADA claims challenge her access to a place of public accommodation and
therefore arise under Title III of the statute. See Pl.’s Resp. in Opp’n to Walmart’s Mot. to Dismiss,
ECF No. 17 [hereinafter Pl.’s Opp’n], at 1, 4–6 (acknowledging that her claims arise under Title
III). Title III of the ADA provides that “[n]o individual shall be discriminated against on the basis
of disability in the full and equal enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public accommodation by any person who owns,
leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a).
“Private parties bringing suit under Title III of the ADA are limited exclusively to injunctive
relief.” Jefferson v. Stinson Morrison Heckler LLP, 249 F. Supp. 3d 76, 80 (D.D.C. 2017) (citing
42 U.S.C. § 12188 (incorporating § 2000a–3(a), which authorizes a “civil action for preventive
relief”)); see also Reeves v. MV Transp., Inc., 845 F. Supp. 2d 104, 107 (D.D.C. 2012) (“[O]nly
injunctive relief is available for violations of Title III.” (cleaned up)). In this case, Walmart argues
that Plaintiff lacks standing to assert her ADA claims because she has not shown a sufficient
“likelihood of future injury from Walmart’s exclusive shopping program” that could be remedied
by injunctive relief. Def.’s Mot. at 12. The court agrees.
This court’s powers under Article III of the Constitution are limited to adjudicating actual
cases or controversies. See Honig v. Doe, 484 U.S. 305, 317 (1988). “In an attempt to give
meaning to . . . [that] requirement, the courts have developed a series of principles termed
justiciability doctrines, among which [is] standing . . . .” Nat’l Treasury Emps. Union v. United
States, 101 F.3d 1423, 1427 (D.C. Cir. 1996) (internal quotation marks and citation omitted). To
establish standing, a plaintiff must show: (1) that she has “suffered an injury in fact,” defined as
the “invasion of a legally protected interest [that] is both (a) concrete and particularized, . . . and
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(b) actual or imminent, not conjectural or hypothetical”; (2) that a “causal connection” exists
“between the injury and the conduct complained of,” such that the injury is “fairly traceable to the
challenged action of the defendant”; and (3) that it is “likely, as opposed to merely speculative,
that the injury will be redressed by a” decision in favor of the plaintiff. Lujan, 504 U.S. at 560–
61 (cleaned up).
Furthermore, in actions like this one where a plaintiff seeks injunctive relief, “[t]he
standing requirement . . . ‘cannot be met absent a showing of a real or immediate threat that the
plaintiff will be wronged again.’” Jefferson, 249 F. Supp. 3d at 81 (quoting Deck v. Am. Haw.
Cruises, Inc., 121 F. Supp. 2d 1292, 1297 (D. Haw. 2000)). “[H]arm in the past . . . is not enough
to establish a present controversy, or in terms of standing, an injury in fact.” Am. Soc’y for the
Prevention of Cruelty to Animals v. Ringling Bros. & Barnum & Bailey Circus, 317 F.3d 334, 336
(D.C. Cir. 2003). Stated another way, “[b]ecause injunctions regulate future conduct, a party has
standing to seek injunctive relief only if the party alleges, and ultimately proves, a real and
immediate—as opposed to merely conjectural or hypothetical—threat of future injury.” Nat. Res.
Def. Council v. Pena, 147 F.3d 1012, 1022 (D.C. Cir. 1998).
Here, Plaintiff has failed to allege any facts whatsoever establishing a likelihood of future
injury from Walmart’s exclusive shopping program. For starters, there is no indication that
Plaintiff ever plans to return to the Georgia Avenue Walmart location. Plaintiff does not reside in
the District of Columbia, see Compl. ¶ 3, she makes no representation that she has ever visited this
particular Walmart location in the past, and she makes no averment that she intends to visit it in
the future. See Anderson v. Macy’s Inc., 943 F. Supp. 2d 531, 539 (W.D. Pa. 2013) (providing
factors courts look to in “determin[ing] the likelihood of a plaintiff returning to the place of [an]
alleged ADA violation,” including: “(1) the plaintiff’s proximity to the defendant’s place of public
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accommodation; (2) the plaintiff[’]s past patronage; [and] (3) the definitiveness of the plaintiff’s
plan to return”). Plaintiff therefore fails to plead any likelihood of future injury.
Even if Plaintiff had made a bare assertion of intent to return to the Georgia Avenue
Walmart’s exclusive shopping hour, that alone is insufficient to show “real or immediate threat
that the plaintiff will be wronged again.” Jefferson, 249 F. Supp. 3d at 81. The Supreme Court
has long held that “[p]ast exposure to illegal conduct does not itself show a present case or
controversy regarding injunctive relief.” O’Shea v. Littleton, 414 U.S. 488, 495 (1974); see also
City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983) (holding prior interaction with police did
not establish “real and immediate threat that [plaintiff] would again be stopped” and subjected to
allegedly unconstitutional tactic). Plaintiff’s allegations amount to the following: on one occasion,
a security guard denied Plaintiff entry to the Georgia Avenue Walmart store’s exclusive shopping
hour because the guard either 1) was instructed by Walmart to allow “only ‘seniors’ to enter the
store” for the exclusive shopping period, see Compl. ¶ 29, or 2) did not believe Plaintiff was
immunocompromised, id. ¶ 24. Those allegations say nothing about the likelihood that another
guard, or even the same guard, would make the same mistake on another occasion. Plaintiff would
have the court infer from Walmart’s alleged “no[n] uniform” exclusive shopping program policy
that she would again be denied access to the exclusive shopping hour on a future visit to the store.
Compl. ¶ 9; see Pl.’s Opp’n at 11 (“Without adequate policy or practices, Walmart’s guards or
employees . . . will commit ‘future violations of Plaintiff’s rights’”). Although Plaintiff is entitled
to “the benefit of all inferences that can be derived from the facts alleged,” Am. Nat’l Ins., 642
F.3d at 1139, she is not entitled to implausible inferences that are divorced from the actual facts
pleaded, cf. Deck, 121 F. Supp. 2d at 1297 (“[A] Plaintiff does not have standing to sue for []
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injunctive relief by merely alleging that Defendant has a policy and practice of discriminating
against disabled persons generally.” (citing Lyons, 461 U.S. at 101)).
Accordingly, because Plaintiff has not shown “a real or immediate threat that [she would]
be wronged again,” she lacks standing to seek injunctive relief. And because injunctive relief is
the only remedy available under Title III of the ADA, see Reeves, 845 F. Supp. 2d at 107, Counts
3 and 7 must be dismissed, see Fed. R. Civ. P. 12(h)(3). 1
B. Plaintiff’s DCHRA Claims (Counts 1–2 and 5–6)
Before diving into an analysis of Plaintiff’s DCHRA claims, the court must first untangle
them. The Complaint does not identify the specific provisions upon which Plaintiff’s DCHRA
claims are based, and Plaintiff appears to assert duplicative claims. Like the ADA, the DCHRA
prohibits discrimination on the basis of a disability in a place of public accommodation.
Specifically, it makes it unlawful for any “place of public accommodation” to deny a person “full
and equal enjoyment” of “goods, services, facilities, privileges, advantages, [or] accommodations”
if the denial is made “wholly or partially for a discriminatory reason based on the actual or
perceived . . . disability” of the individual. D.C. Code § 2-1402.31. In this context, a plaintiff may
base a claim of disability discrimination on one of three theories of liability: (1) intentional
discrimination, otherwise known as disparate treatment; (2) disparate impact; or (3) failure to
accommodate. See Badwal v. Bd. of Trs. of Univ. of D.C., 139 F. Supp. 3d 295, 308 (D.D.C. 2015).
Here, Plaintiff purports to be raising two disparate treatment claims—one for “Public
Accommodations Violation” (Count 1) and one for “Disability Discrimination” (Count 2), see
Compl. at 7—as well as two corresponding disparate impact claims (Counts 5 and 6), see id. at 9.
1
For reasons discussed infra Section IV.B., Plaintiff has also failed to state a claim for discrimination on the basis of
a disability in a place of public accommodation under the ADA.
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But a “public accommodations violation” is not a distinct claim from “disability discrimination”
under the DCHRA; they are two components of the same claim. That is, under D.C. Code
§ 2-1402.31, disability is the protected trait, and “full and equal enjoyment” of “public
accommodations” is what must be afforded on equal terms. Accordingly, Count 1 is duplicative
of Count 2, and Count 5 is duplicative of Count 6. The court thus construes the Complaint to
allege one count of disparate treatment and one count of disparate impact under the DCHRA.
Defendant argues that Plaintiff has failed to state a claim for either claim. See Def.’s Mot. at 5–12.
The court considers each claim in turn and agrees with Defendant.
1. Disparate Treatment (Counts 1 and 2)
Where a plaintiff alleges disparate treatment under the DCHRA, liability depends on
whether the defendant’s actions were taken “because of” the plaintiff’s disabilities. Boykin v.
Gray, 895 F. Supp. 2d 199, 210, 219 (D.D.C. 2012); see Seth v. District of Columbia, No. 18-cv-
1034, 2018 WL 4682023, at *11 (D.D.C. Sept. 28, 2018), aff’d, 2020 WL 2611716 (D.C. Cir.
Apr. 21, 2020). It is not enough for a plaintiff to allege that she has a disability and was denied
service. Rather, a plaintiff “need[s] to allege that” defendant’s actions were “on account of
[plaintiff’s] disabilities.” Boykin v. Fenty, 650 F. App’x 42, 44 (D.C. Cir. 2016). 2 Plaintiff in this
case has not done so.
Plaintiff’s Complaint is devoid of any facts showing that Walmart acted in any way
because of Plaintiff’s disability. In fact, the Complaint squarely forecloses such an inference, as
it provides two reasons for the security guard’s action, both of which suggest the guard acted
2
“District of Columbia courts interpreting the DCHRA ‘have generally looked [for guidance] to cases from the federal
courts’ arising under federal civil rights statutes.” Whitbeck v. Vital Signs, Inc., 116 F.3d 588, 591 (D.C. Cir. 1997)
(quoting Benefits Commc’n Corp. v. Klieforth, 642 A.2d 1299, 1302–02 (D.C. 1994)). Therefore, cases involving
parallel provisions of the ADA are persuasive in reviewing Plaintiff’s DCHRA claims. See Chang v. Inst. For Pub.-
Private P’ships, Inc., 846 A.2d 318, 324 (D.C. 2004).
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despite Plaintiff’s disability, not because of it. As discussed, Plaintiff alleges that the security
guard either 1) “did not believe that [plaintiff] was disabled,” Compl. ¶ 24, or 2) was instructed by
Walmart to allow “only ‘seniors’ to enter the store” for the exclusive shopping period, see id. ¶ 29.
As the Supreme Court recognized in Raytheon Co. v. Hernandez, a defendant cannot act “because
of [a] disability” if she is “entirely unaware that such a disability exist[s].” 540 U.S. 44, 54 n.7
(2003). Here, Plaintiff alleges that the security guard disbelieved that she was disabled and treated
her as if she did not have a disability. In such a scenario, the disabled person “cannot, ipso facto,
have been subject to disparate treatment.” Id.; see also Fiorillo v. United Techs. Corp., No. 13-
cv-1287, 2015 WL 5797010, at *10 n.9 (D. Conn. Sept. 30, 2015) (finding plaintiff’s employment
benefits were denied “not because of her physical and mental disabilities, as is necessary to sustain
an ADA claim, but because [defendant] believed that [plaintiff] was not disabled” and was instead
malingering); A.F. v. Starbucks Corp., No. 3:17-cv-1582, 2018 WL 1161385, at *5 (D. Or. Mar. 5,
2018) (dismissing action where plaintiff failed to “allege[] any facts to suggest that Defendant’s
employees knew about Plaintiff’s disability”); Spears v. E-Z Mart Stores, Inc., No. 12-cv-17,
2013 WL 1309398, at *4 (N.D. Okla. March 26, 2013) (dismissing action where plaintiff
“assert[ed] that [defendant] did not believe he was disabled”); Hendricks v. Stepp, No. 08-cv-3299,
2009 WL 2224524, at *5 (D.S.C. July 22, 2009) (“The defendants cannot have discriminated . . .
on the basis of a disability if they knew nothing about it.”).
Plaintiff’s reliance on case law involving “hidden disabilities” and emphasis on the
DCHRA’s language regarding “perceived” disabilities is misplaced. See Pl.’s Opp’n at 6–7
(discussing D.C. Code § 2-1402.31(a) (prohibiting discrimination based on “actual or perceived
. . . disability”)). The language in the DCHRA regarding perceptibility stands for the proposition
that a person who is not disabled remains protected from discrimination if someone “mistakenly
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believes” she is disabled and acts on that “misperception[n].” Sutton v. United Air Lines, Inc., 527
U.S. 471, 489 (1999). It does not, as Plaintiff suggests, negate the statute’s causality requirement
or protect someone mistakenly regarded as not disabled from being treated the same as non-
disabled customers. That is simply not the purpose of anti-discrimination laws. Cf. Doe v.
Pfrommer, 148 F.3d 73, 83 (2d Cir. 1998) (explaining that the purpose of the ADA is “to assure
that disabled individuals receive ‘evenhanded treatment’ in relation to the able-bodied”).
Because Plaintiff has “proffered absolutely no allegations supporting a plausible inference
that” the security guard denied her entry to Walmart’s exclusive shopping hour because of her
disability, Fenty, 650 F. App’x at 44, Plaintiff has failed to state a claim for disparate treatment
under the DCHRA. Accordingly, the court dismisses Counts 1 and 2.
2. Disparate Impact (Counts 5 and 6)
Plaintiff’s disparate impact claim under the DCHRA fails for similar reasons. 3 A plaintiff
may state a disparate impact claim by alleging facts showing that a “facially neutral practice or
policy has a disproportionate impact on persons with disabilities.” Fenty, 650 F. App’x at 44; see
D.C. Code § 2-1402.68 (prohibiting “[a]ny practice which has the effect or consequence of
violating any of the provisions of this chapter”); Seth, 2018 WL 4682023, at *12; Mitchell v. DCX,
Inc., 274 F. Supp. 2d 33, 47 (D.D.C. 2003). In other words, a place of public accommodation
cannot adopt even well intentioned policies that have the effect of preventing the disabled from
obtaining service equal to that offered to non-disabled individuals. See Doe, 148 F.3d at 83.
3
Plaintiff also appears to restate her disability discrimination counts as “class claims” in Counts 5–7, see Compl. at 9
(listing Counts 5–7 under the title “Class Claims”), but because those claims are premised on Plaintiff’s individual
discrimination claims, they fail for the same reasons. See Brewer v. Holder, No. 08-cv-1747(BJR), 2013 WL
12399111, at *2 (D.D.C. Oct. 11, 2013).
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Here, Plaintiff alleges that Walmart “implements a policy that randomly selects customers
that it perceives to have a disability[] to shop in its stores during exclusive shopping hours,” Compl.
¶ 48, and that policy “disproportionally impacts those with unseen or non-visible disabilities,” id.
¶ 49. In opposition to Defendant’s motion to dismiss, Plaintiff more generally asserts that
Walmart’s policy, “[a]lthough well intentioned, . . . has the effect of preventing those who are
immunocompromised or with hidden disabilities[] from obtaining equal services to what is made
available to individuals who are not disabled.” Pl.’s Opp’n at 9. But that simply cannot be because
“individuals who are not disabled” are not authorized to shop during the exclusive shopping hour.
Indeed, that is the fundamental problem with Plaintiff’s claim—Walmart’s policy is not “facially
neutral” to begin with; it is a policy applying to only a protected class (disabled and elderly
shoppers). Thus, here again, what Plaintiff seems to allege is that Walmart’s policy or practice
has the effect of treating individuals with “hidden disabilities” differently than persons with visible
disabilities, but the same as non-disabled persons. Such allegations are insufficient to state a claim
of disparate impact, and Plaintiff offers no authority suggesting otherwise.
Even if Plaintiff could state a disparate impact claim by alleging that Walmart’s policy
disproportionately favors one set of disabled persons over another, the Complaint lacks facts
supporting such an allegation. “Allegations about [a plaintiff’s] individual experiences accessing
services” are insufficient to show disparate impact, as they “say nothing about whether
[defendant’s policy or practice] ha[s] a disparate impact on persons with disabilities.” Fenty, 650
F. App’x at 44; see also City of Joliet v. New W., L.P., 825 F.3d 827, 830 (7th Cir. 2016)
(“Disparate-impact analysis looks at the effects of policies, not one-off decisions.”). Plaintiff does
not identify or otherwise hint at a single person other than herself who was wrongly denied access
to Walmart’s exclusive shopping hour. Plaintiff appends to her Complaint several tweets from
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individuals claiming they were wrongly denied access to exclusive shopping hours at other
retailers, see Compl., Ex. 1, ECF No. 1-1, but those allegations say nothing of the impact of
Walmart’s policy or practice. The only other Walmart customer Plaintiff mentions in her
Complaint is another customer without a visible disability who was permitted to enter the store
during the exclusive shopping hour. See Compl. ¶ 25. That allegation directly undermines
Plaintiff’s argument that Walmart’s policy disfavors customers with non-visible disabilities.
Thus, because Plaintiff has alleged no facts to plausibly show that Walmart’s exclusive
shopping program policy or practice has a “disproportionate impact on persons with disabilities,”
she has failed to state a claim for disparate impact. Counts 5 and 6 are therefore dismissed.
C. Negligent Retention, Training & Supervision (Count 7)
Plaintiff’s final claim is for negligent retention, training and supervision. See Compl.
¶¶ 42–45. Specifically, Plaintiff alleges that “Defendant breached [a duty of care owed to its
patrons] by failing to retain, train, and supervise its agents or employees about disability
discrimination.” Id. ¶ 43. “D.C. case law does not appear to distinguish between negligent
supervision and negligent retention.” Thorp v. District of Columbia, 319 F. Supp. 3d 1, 21 (D.D.C.
2016) (quoting Islar v. Whole Foods Mkt. Grp., Inc., 217 F. Supp. 3d 261, 265 n.1 (D.D.C. 2016)).
“To invoke [either] theory of liability[,] it is incumbent upon a party to show that an employer
knew or should have known its employee behaved in a dangerous or otherwise incompetent
manner, and that the employer, armed with that actual or constructive knowledge, failed to
adequately supervise the employee.” Giles v. Shell Oil Corp., 487 A.2d 610, 613 (D.C. 1985); see
also Doe v. Exxon Mobil Corp., 573 F. Supp. 2d 16, 28 (D.D.C. 2008) (“An employer has the legal
duty to use ordinary care so as not to employ or retain an independent contractor it knew or should
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have known was negligent in performing the contract.”). The court agrees with Defendant that
this claim also fails, for at least two reasons. See Def.’s Mot. at 14–17.
First, as already discussed, supra at pp. 9–11, Plaintiff has failed to plausibly state that the
contracted security guard discriminated against her on the basis of her disability, and therefore
“disability discrimination” is not a cognizable predicate for a negligent retention, training, and
supervision claim. See Steele v. Isikoff, 130 F. Supp. 2d 23, 37 (D.D.C. 2000) (dismissing
negligent hiring and supervision counts after rejecting “first eight counts” because “[w]ithout any
primary liability, there can be no derivative liability”).
Second, and more critically, “a common law claim of negligent supervision may be
predicated only on common law causes of action or duties otherwise imposed by the common
law.” Griffin v. Acacia Life Ins. Co., 925 A.2d 564, 576 (D.C. 2007). “To hold otherwise would
be to impose liability on employers for failing to prevent a harm that is not a cognizable injury
under the common law.” Tridico v. District of Columbia, 130 F. Supp. 3d 17, 31 (D.D.C. 2015)
(cleaned up). In other words, a statutory violation cannot give rise to a negligent supervision claim
and, thus, a “negligent supervision claim cannot be predicated on a violation of the DCHRA.”
Griffin, 925 A.2d at 579.
Because Plaintiff has not alleged independent tortious conduct by the contracted security
guard, she cannot maintain a claim against Defendant for negligently retaining, training or
supervising its employees. See Doe 1 v. George Washington Univ., 369 F. Supp. 3d 49, 87 (D.D.C.
2019) (dismissing negligent training and supervision claims because they were “not predicate[d]
. . . on a common law cause of action”); Islar, 217 F. Supp. 3d at 268 (dismissing negligent
supervision and retention claims where plaintiff could not identify a “predicate claim
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under Griffin that would permit him to recover on a negligent supervision or retention theory”).
Accordingly, Count 7 is dismissed.
V. CONCLUSION
For the foregoing reasons, Defendant’s Motion to Dismiss, ECF No. 13, is hereby granted
in full.
A final appealable Order accompanies this Memorandum Opinion.
Dated: February 19, 2021 Amit P. Mehta
United States District Court Judge
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