Brug v. National Coalition for Homeless, CIV.A. 98-504 SSH.

• Decision Date: 19 March 1999
• Docket Number: No. CIV.A. 98-504 SSH.,CIV.A. 98-504 SSH.
• Citation: 45 F.Supp.2d 33
• Parties: Peggy BRUG, Plaintiff, v. NATIONAL COALITION FOR THE HOMELESS, National Coalition for the Homeless Board of Directors, Mary Ann Gleason, Bill Faith, Anita Beaty, Gloria Marti, the United States, and the United States Department of Housing and Urban Development, Defendants.
• Court: U.S. District Court — District of Columbia

Page 33

45 F.Supp.2d 33

Peggy BRUG, Plaintiff, v. NATIONAL COALITION FOR THE HOMELESS, National Coalition for the Homeless Board of Directors, Mary Ann Gleason, Bill Faith, Anita Beaty, Gloria Marti, the United States, and the United States Department of Housing and Urban Development, Defendants.

No. CIV.A. 98-504 SSH.

United States District Court, District of Columbia.

March 19, 1999.

COPYRIGHT MATERIAL OMITTED

Dana W. Johnson, McLemore & Johnson, Silver Spring, MD, for Plaintiff.

Assistant U.S. Atty. Stacy M. Ludwig, U.S. Attorney's Office, Washington, DC, for Defendants.

OPINION

STANLEY S. HARRIS, District Judge.

This matter is before the Court on two motions to dismiss or, in the alternative, for summary judgment, one filed by the National Coalition for the Homeless ("NCH"), the NCH Board of Directors ("NCH Board"), Mary Ann Gleason, Bill Faith, Anita Beaty, and Gloria Marti (collectively "the NCH defendants"), and one filed by the United States and the United States Department of Housing and Urban Development ("HUD") (collectively "the federal defendants").¹ Upon consideration of the foregoing motions and the entire record, the Court grants the federal defendants' motion to dismiss or, in the alternative, for summary judgment, with respect to all but plaintiff's contract claims, on which the Court defers judgment pending plaintiff's decision to amend her complaint. The Court also grants in part and denies in part the NCH defendants' motion to dismiss or, in the alternative, for summary judgment. "Findings of fact and conclusions of law are unnecessary on decisions of motions under Rule 12 or 56 ...." Fed.R.Civ.P. 52(a); Summers v. Department of Justice, 140 F.3d 1077, 1079-80 (D.C.Cir.1998). Nonetheless, the Court sets forth its reasoning.

BACKGROUND

Plaintiff Peggy Brug, a black female, worked for the NCH from April 15, 1996, until May 22, 1997, as the Project Manager for Technical Assistance Services. She alleges that during her employment she was subjected to a racially hostile working environment and that, when she complained of the racial bias against her, she was fired in retaliation. Moreover, plaintiff alleges that her discharge violated the contract that existed between her and the NCH. Specifically, plaintiff alleges that defendant Gleason, the Executive Director of the NCH, made disparaging remarks about blacks, treated plaintiff differently from white employees in the areas of discipline, evaluation, and termination, and ultimately fired plaintiff for retaliatory reasons and without following the proper procedures.

Also named as defendants are HUD and the United States.² HUD allegedly funds and regulates the Technical Assistance Services Program ("TASP"). Plaintiff alleges that the HUD Agreement and the HUD Technical Assistance Delivery Plan ("TADP") controlled her employment with the NCH and, accordingly, that HUD and the United States are responsible for her hostile working environment and discriminatory discharge.

Moreover, plaintiff alleges that the NCH Board of Directors and defendants Faith, Beaty, and Marti tortiously breached the implied covenant of good faith and fair dealing by failing to evaluate Gleason's performance and by violating the impartiality and fairness provisions of the NCH grievance process. She further contends that all of the named defendants negligently failed to properly discharge their responsibilities related to her employment. Finally, plaintiff alleges that defendants Gleason and Faith intentionally released defamatory information about plaintiff's work and professional capabilities.

STANDARD OF REVIEW

A motion to dismiss should not be granted "unless plaintiff[] can prove no set of facts in support of [her] claim which would entitle [her] to relief." Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The complaint is construed liberally in the plaintiff's favor, and plaintiff is given the benefit of all inferences that can be derived from the facts alleged. EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.Cir.1997); Tele-Communications of Key West, Inc. v. United States, 757 F.2d 1330, 1334-35 (D.C.Cir.1985). "However, the court need not accept inferences drawn by plaintiff[ ] if such inferences are unsupported by the facts set out in the complaint. Nor must the court accept legal conclusions cast in the form of factual allegations." Kowal, 16 F.3d at 1276.

In the event matters outside the pleadings are presented to and not excluded by the court, and the court assures itself that such treatment would be fair to both parties, a motion to dismiss may be treated as one for summary judgment and disposed of as provided in Federal Rule of Civil Procedure 56. Fed.R.Civ.P. 12(b); Americable Int'l Inc. v. Department of the Navy, 129 F.3d 1271, 1274 n. 5 (D.C.Cir.1997); Tele-Communications, 757 F.2d at 1334. Summary judgment may be granted only if the pleadings and evidence "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In considering a summary judgment motion, all evidence and the inferences to be drawn from it must be considered in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Mere allegations in the pleadings, however, are not sufficient to defeat a summary judgment motion; if the moving party shows that there is an absence of evidence to support the nonmoving party's case, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. See Fed. R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

DISCUSSION

I. Title VII

Plaintiff first alleges that she was subjected to a racially hostile work environment and terminated from her position at the NCH due to her race in violation of Title VII. Compl. ¶¶ 1, 13-23.

1. Federal Defendants

The federal defendants move to dismiss or, in the alternative, for summary judgment on plaintiff's Title VII claim against them, on the ground that she was not a federal employee.³ According to the Court of Appeals:

Title VII cover[s] only those individuals in a direct employment relationship with a government employer. Individuals who are independent contractors or those not directly employed by such an employer are unprotected. Status as an employee is therefore of crucial significance for those seeking to redress alleged discriminatory actions in federal employment.

Spirides v. Reinhardt, 613 F.2d 826, 829-830 (D.C.Cir.1979) (footnotes omitted); see also 42 U.S.C. § 2000e-16; Mares v. Marsh, 777 F.2d 1066, 1068 (5th Cir.1985) (observing that "inasmuch as 42 U.S.C. § 2000e-16 is a waiver of sovereign immunity, its coverage ought to be strictly construed to limit remedies to persons who are clearly under the control of the federal government"); King v. Dalton, 895 F.Supp. 831, 836 (E.D.Va.1995). In order to determine whether an individual had a sufficiently direct employment relationship with the federal government to trigger Title VII's protection, the Court must consider all of the circumstances surrounding the work relationship. Spirides, 613 F.2d at 831. The most important factor is the federal government's right to control plaintiff's work. Id.; King, 895 F.Supp. at 838. That factor, however, is not dispositive; other relevant factors include:

(1) the kind of occupation, with reference to whether the work usually is done under the direction of a supervisor or is done by a specialist without supervision; (2) the skill required in the particular occupation; (3) whether the "employer" or the individual in question furnishes the equipment used and the place of work; (4) the length of time during which the individual has worked; (5) the method of payment, whether by time or by the job; (6) the manner in which the work relationship is terminated ...; (7) whether annual leave is afforded; (8) whether the work is an integral part of the business of the "employer"; (9) whether the worker accumulates retirement benefits; (10) whether the "employer" pays social security taxes; and (11) the intention of the parties.

Spirides, 613 F.2d at 832; see also King, 895 F.Supp. at 838 & n. 9 (noting that, although the Spirides factors were developed in a context where there was only one possible employer, it also provides the proper framework for analyzing the status of a putative co-employer).

Based on the Spirides factors, the Court concludes that, as a matter of law, plaintiff cannot establish that she was a federal employee.⁴ The NCH paid plaintiff's salary, and plaintiff's insurance, retirement benefits, and sick and annual leave were governed by NCH policies.⁵ See Supplemental Declaration of Cynthia Hernan ¶¶ 6-7 [hereinafter "Hernan II Decl."]; Affidavit of Peggy Brug ¶ 9 (acknowledging that "NCH issued my paychecks"); see also id. ¶ 4 (acknowledging that the NCH Personnel Manual, along with the HUD agreement, established her employment agreement); id. Ex. A. (NCH Personnel Manual, which provides at p. 5 that "[a]ll permanent employees will be covered by NCH ... with Social Security, unemployment insurance and workmen's compensation," and explains the leave policies at pp. 6-8). The NCH also regulated the grievance and resignation procedures applicable to plaintiff's employment. See Brug Aff. Ex. A. Plaintiff's direct supervisor was Gleason, an NCH employee, and plaintiff worked at the NCH office. Id. ¶¶ 5 & 9. HUD did not have the authority to hire or fire plaintiff under the HUD Agreement.⁶ See Declaration of Cynthia Hernan [hereinafter "Hernan I Decl."] Ex. A (the HUD Agreement); see also id. ¶¶ 6-8 (confirming that HUD did not have any input into the decision to hire or fire plaintiff).⁷

Nor has plaintiff...