Howard v. Fed. Express Corp.

Decision Date22 November 2017
Docket NumberCase No. 16–cv–02514 (APM)
Citation280 F.Supp.3d 26
Parties Alfred Wendell HOWARD, Jr. and Hikiem Sharodd Cain, Plaintiffs, v. FEDERAL EXPRESS CORPORATION and John O'Reilly, Defendants.
CourtU.S. District Court — District of Columbia

Charity Swift, pro hac vice, Stephen Christopher Swift, Swift & Swift, P.L.L.C., Alexandria, VA, for Plaintiffs.

Daniel T. French, P. Daniel Riederer, Peter D. Blumberg, Federal Express Corporation, Memphis, TN, for Defendants.


Amit P. Mehta, United States District Judge

Plaintiffs Alfred Howard and Hikiem Cain bring the present action against Defendants Federal Express Corporation ("FedEx") and John O'Reilly, a FedEx Operations Manager, asserting discrimination claims under 42 U.S.C. § 1981 and common law claims arising from the termination of their employment with FedEx. Before the court are the following motions: (1) Defendant FedEx's Partial Motion to Dismiss; (2) Defendant O'Reilly's Partial Motion to Dismiss; and (3) Plaintiffs' Motion for Leave to Amend.

For the reasons herein, the court grants in part and denies in part Plaintiffs' Motion for Leave to Amend. Because portions of the Amended Complaint are now the operative pleading in this matter, the court denies as moot Defendants FedEx's and O'Reilly's Partial Motions to Dismiss. The court assumes the parties' familiarity with this matter and therefore references the factual allegations only as necessary to resolve their disputes.


Plaintiffs are African-American males and former FedEx couriers who were suspended and subsequently terminated for losing custodial control of packages while performing deliveries in Washington, D.C. See Compl., ECF No. 1 ¶¶ 5–6; Compl., Howard Termination Letter, Ex. C, ECF No. 1–7; Compl., Cain Termination Letter, Ex. F, ECF No. 1–10. Plaintiffs filed the present action on December 23, 2016. The original Complaint alleges the following claims: (1) racial and intentional discrimination in the making and enforcement of contracts in violation of 42 U.S.C. § 1981 (Count I); (2) disparate treatment in violation of 42 U.S.C. § 1981 (Count II); (3) promissory estoppel as to Howard only (Count III); (4) breach of the duty of good faith and fair dealing (Count IV); (5) breach of express contract as to Howard only (Count V); (6) breach of implied contract (Count VI); (7) negligence (Count VII); and (8) defamation (Count VIII).

Defendant FedEx moved to dismiss Counts I, III, IV, V, VI, and VII of the Complaint on April 11, 2017. Def. FedEx Mot. to Dismiss, ECF No. 7 [hereinafter FedEx. Mot]. After FedEx's Motion ripened, Defendant O'Reilly moved to dismiss Counts I, III, IV, V, VI, VII, and VIII of the Complaint on May 30, 2017. Def. O'Reilly's Mot. to Dismiss, ECF No. 19 [hereinafter O'Reilly's Mot.]. Plaintiffs opposed O'Reilly's Motion, but before that Motion ripened, they sought leave of court to amend their Complaint. Pls.' Mot. for Leave to Am. Compl., ECF No. 22 [hereinafter Pls.' Mot. to Am.]. Plaintiffs' proposed Amended Complaint re-alleges the same claims as their original Complaint, but now expressly names O'Reilly as a Defendant as to all eight Counts and alleges additional facts concerning O'Reilly's conduct. See generally Pls.' Mot. to Am., Proposed Am. Compl., ECF No. 22–2 [hereinafter Am. Compl.]. Defendants oppose Plaintiffs' Motion for Leave to Amend on the ground that amendment would be futile because Plaintiffs' proposed changes to the operative complaint would not survive a motion to dismiss. Defs.' Opp'n to Pls.' Mot. to Am., ECF No. 25, at 2–3; see In re Interbank Funding Corp. Secs. Litig. , 629 F.3d 213, 215–16 (D.C. Cir. 2010) (stating that a district court may deny leave to amend "on grounds of futility where the proposed pleading would not survive a motion to dismiss").


Federal Rule of Civil Procedure 15(a) instructs courts to "freely give leave" to a party seeking to amend its pleadings. The Supreme Court has emphasized that Rule 15(a)'s "mandate is to be heeded." Foman v. Davis , 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). "If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits." Id . Denying leave to amend is "inconsistent with the spirit of the Federal Rules" and an abuse of discretion, id. , unless the court provides a sufficient reason for so doing, such as "futility of amendment, undue delay, bad faith, dilatory motive, undue prejudice, or repeated failure to cure deficiencies by previous amendments," Boyd v. Dist. of Columbia , 465 F.Supp.2d 1, 3 (D.D.C. 2006).

Given the posture of the case—pending motions to dismiss and a pending motion to amend—in the interest of judicial efficiency, the court will evaluate Defendants' arguments for dismissal against the claims and allegations presented in the proposed Amended Complaint, not against the Original Complaint. If the proposed Amended Complaint states cognizable claims, the court must allow the amendment as to those claims. The court evaluates Plaintiffs' arguments for dismissal under the familiar standards articulated in Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal , 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

For the reasons discussed below, the court grants Plaintiffs' Motion for Leave to Amend in part and denies it in part. Therefore, the proposed Amended Complaint shall become the operative pleading for the surviving claims. Accordingly, Defendants' Partial Motions to Dismiss are denied as moot. See Johnson v. Panetta , 953 F.Supp.2d 244, 248, 250–51 (D.D.C. 2013).

A. Breach of Contract and Breach of Duty of Good Faith and Fair Dealing

The court concludes that Plaintiffs' claims premised on the existence of an express or implied employment contract would not survive a motion to dismiss. Leave to amend Counts IV, V, and VI therefore is denied as futile.

Plaintiffs contend that these claims should survive because their employment with FedEx was governed by FedEx's "People Manual," which outlines a host of policies pertaining to employment with FedEx. As relevant here, the People Manual contains a progressive discipline policy—the "Acceptable Conduct Policy"—and a progressive appeals process for disciplinary actions—the "Guaranteed Fair Treatment Procedure." Am. Compl. ¶¶ 59–62, 88–91.1 Plaintiff Howard asserts in Count V that, by terminating him after only two instances of alleged misconduct, Defendants breached an express contract with him purportedly providing that termination may occur only after three instances of alleged misconduct within a twelve-month period. Am. Compl. ¶¶ 147–51. Plaintiffs additionally assert in Count VI that provisions in the People Manual created an implied obligation on Defendants' part not to terminate them without cause. Am. Compl. ¶¶ 152–63; see Pls.' Opp'n to FedEx's Mot., ECF No. 10–1 [hereinafter Opp'n to FedEx's Mot.], at 2. The court rejects Plaintiffs' assertions.

For starters, Plaintiffs fail to allege that Defendant O'Reilly was a party to any implied or express employment contract. They assert only that O'Reilly "knew and understood" FedEx's policies as outlined in the People Manual. E.g. , Am. Compl. ¶¶ 148, 160. That allegation is plainly insufficient to create a contract between O'Reilly and Plaintiffs. Accordingly, Plaintiffs fail to state a claim against O'Reilly as to Counts IV, V, and VI.

As to Defendant FedEx, the court reaches the same conclusion, but for different reasons. In the District of Columbia, all employment is presumed to be terminable at-will "unless a contrary contractual intent is clearly expressed." Turner v. Fed. Express Corp. , 539 F.Supp.2d 404, 410 (D.D.C. 2008). "The presumption of at-will employment is rebutted only where the parties clearly state an intention to place limits on the employer's right to terminate." Id. Such clear intent may be reflected in an employer's personnel manual or employment handbook, thereby giving rise to an implied contract. See Clampitt v. Am. Univ. , 957 A.2d 23, 35 (D.C. 2008). A personnel manual creates an implied employment contract when, as pertinent here, it sets out preconditions that must be met before termination of employment, Strass v. Kaiser Found. Health Plan , 744 A.2d 1000, 1013–14 (D.C. 2000), and when the employer publishes or distributes the personnel manual containing those preconditions to all employees, see Clampitt , 957 A.2d at 36. Employers may, however, "effectively disclaim any implied contractual obligations arising from such provisions." Boulton v. Inst. of Int'l Educ. , 808 A.2d 499, 505 (D.C. 2002). "The legal effect of such a disclaimer is, in the first instance, a question for the court to decide." Id.

Here, Plaintiffs' implied contract claims fail because (1) they have not identified any preconditions that FedEx must have fulfilled before termination, and (2) FedEx has expressly disclaimed that the People Manual imposes upon FedEx any contractual obligations. Plaintiffs maintain that the "essence" of the Guaranteed Fair Treatment Procedure ("GFTP") and the language of the Acceptable Conduct Policy contradict the existence of an at-will employment relationship, see Opp'n. to FedEx's Mot., at 9–12, but upon review of those provisions, it is clear that FedEx did not intend to limit its right to terminate its employees at-will. To begin with, the GFTP does not, as Plaintiffs suggest, mandate termination only for cause; instead, the Procedure provides employees a guaranteed process by which to appeal a disciplinary action, explicitly noting that "the outcome [of the process] is not ensured to be in the employee's favor," and that the Procedure "do[es] not create contractual rights regarding termination or otherwise." FedEx's Mot., GFTP, Ex. B, ECF No. 7–3, at 334, 336. And, despite Howard's preferred interpretation,...

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