Vreven v. American Ass'n of Retired Persons

• Decision Date: 25 March 2009
• Docket Number: Civil Action No. 08-1099 (PLF).
• Citation: 604 F.Supp.2d 9
• Parties: Line VREVEN, Plaintiff, v. AMERICAN ASSOCIATION OF RETIRED PERSONS, Defendant.
• Court: U.S. District Court — District of Columbia

604 F.Supp.2d 9

Line VREVEN, Plaintiff, v. AMERICAN ASSOCIATION OF RETIRED PERSONS, Defendant.

Civil Action No. 08-1099 (PLF).

United States District Court, District of Columbia.

March 25, 2009.

Edward J. Tolchin, Fettmann Tolchin & Majors PC, Fairfax, VA, for Plaintiff.

Frank Charles Morris, Jr., Kathleen M. Williams, Epstein, Becker & Green, P.C., Washington, DC, for Defendant.

OPINION

PAUL L. FRIEDMAN, District Judge.

This matter, which stems from defendant's termination of plaintiff Line Vreven's employment, is before the Court on plaintiff's motion to amend her complaint, and on defendant's two motions to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The Court heard oral argument on March 18, 2009. After carefully considering the papers filed by the parties, the relevant case law, and the arguments of counsel, the Court grants plaintiff's motion to amend, and grants defendant's motion to dismiss in part and denies it in part.¹

I. BACKGROUND

Plaintiff alleges that she worked for defendant, the American Association of Retired Persons ("AARP"), in various capacities in the International Affairs department from May 17, 2006 until her discharge on May 15, 2008. See Compl. ¶¶ 5, 7, 8, 13.² During her employment by AARP, plaintiff alleges that she expressed concerns to her supervisors about AARP's relationship with AARP Global Network, LLC ("AGN"), a limited liability company founded and wholly owned and operated by AARP. See id. ¶¶ 9, 10. Plaintiff alleges that she was concerned that AARP's relationship with AGN jeopardized AARP's tax exempt status (pursuant to Section 501(c)(4) of the Internal Revenue Code). See id. ¶¶ 6, 10. Plaintiff also alleges that during her employment she expressed concerns to her supervisors about AARP employees' mishandling and improper spending of AARP funds as well as their use of inadequate audit procedures. See id. ¶ 11. She alleges that she was terminated because she had objected to AARP's "abuse and its structure and tax-exempt status resulting in AARP's evasion and avoidance of taxes pursuant to the Internal Revenue Code." Id. ¶ 15.

Plaintiff further alleges that defendant's chief executive officer, William Novelli, told others at AARP that plaintiff's employment was terminated because she engaged in misconduct, bore responsibility for missing money or assets, did not manage her AARP subordinates appropriately, and allowed them to steal from AARP, and that she personally stole money from AARP. See Compl. ¶ 29. She also alleges "upon information and belief" that Mr. Novelli repeated these comments to unnamed people outside of AARP. See id. Plaintiff alleges that Mr. Novelli's statements about the reason for her discharge were false and defamatory. See Compl. ¶ 30.

Plaintiff filed suit in this Court on June 25, 2008.³ Her original complaint asserted two counts—wrongful discharge (Count I) and unlawful discrimination based on her national origin (Belgian) (Count II). On December 22, 2008, plaintiff moved to amend her complaint to add a claim for defamation (Count III).

II. STANDARD OF REVIEW

Rule 12(b)(6) of the Federal Rules of Civil Procedure allows dismissal of a complaint if a plaintiff fails "to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), the Supreme Court clarified the standard of pleading that a plaintiff must meet in order to survive a motion to dismiss under Rule 12(b)(6). The Court noted that "Federal Rule of Civil Procedure 8(a)(2) requires only `a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to `give the defendant fair notice of what the ... claim is and the grounds upon which it rests[.]'" Id. at 544, 127 S.Ct. 1955 (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); see also Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007); Aktieselskabet AF 21 v. Fame Jeans Inc., 525 F.3d 8, 15 (D.C.Cir.2008). Although "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide the "grounds" of "entitle[ment] to relief," a plaintiff must furnish "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. at 555, 127 S.Ct. 1955; see also Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). The Court stated that there was no "probability requirement at the pleading stage," Bell Atlantic Corp. v. Twombly, 550 U.S. at 556, 127 S.Ct. 1955, but "something beyond ... mere possibility ... must be alleged[.]" Id. at 557, 127 S.Ct. 1955 The facts alleged in the complaint "must be enough to raise a right to relief above the speculative level," id. at 555, 127 S.Ct. 1955, because Rule 8(a)(2) requires a "showing," rather than a "blanket assertion," of entitlement to relief, id. at 555 n. 3, 127 S.Ct. 1955. The complaint must be sufficient "to state a claim for relief that is plausible on its face." Id. at 570, 127 S.Ct. 1955. The Court referred to this newly clarified standard as "the plausibility standard." Id. at 560, 127 S.Ct. 1955 (abandoning the "no set of facts" language from Conley v. Gibson). The D.C. Circuit has noted that Twombly "leaves the long-standing fundamentals of notice pleading intact." Aktieselskabet AF 21 v. Fame Jeans Inc., 525 F.3d at 15.

On a motion to dismiss under Rule 12(b)(6), the Court "must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 127 S.Ct. at 2200; see also Bell Atlantic Corp. v. Twombly, 550 U.S. at 555, 127 S.Ct. 1955. The complaint "is construed liberally in the [plaintiff's] favor, and [the Court should] grant [the plaintiff] the benefit of all inferences that can be derived from the facts alleged." Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). Nevertheless, the Court need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint; nor must the Court accept plaintiff's legal conclusions. See Kowal v. MCI Communications Corp., 16 F.3d at 1276; Browning v. Clinton, 292 F.3d 235, 242 (D.C.Cir.2002).

III. DISCUSSION

A. Motion to Amend Complaint

Plaintiff moves to amend her complaint to add a new count (Count III) for defamation related to her discharge by AARP. Rule 15(a) of the Federal Rules of Civil Procedure allows for liberal amendment of pleadings, "when justice so requires." FED. R. CIV. P. 15(a); see, e.g., Howard v. Gutierrez, 237 F.R.D. 310, 312 (D.D.C.2006) (quoting Davis v. Liberty Mutual Insurance Co., 871 F.2d 1134, 1136-37 (D.C.Cir.1989) ("It is common ground that Rule 15 embodies a generally favorable policy toward amendments.") (citations omitted)). The presumption runs in the plaintiff's favor that she may amend her complaint "[i]n the absence of any apparent or declared reason—such as undue delay, bad faith or dilatory motive on the part of the [plaintiff], repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc." Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). The decision whether to grant or deny leave to amend is within the district court's discretion. See Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C.Cir.1996).

Defendant opposes plaintiff's motion to amend on the ground of futility, making virtually the same arguments as those contained in its subsequent motion to dismiss Count III. Since the defendant has moved to dismiss the complaint as amended, and the Court heard oral argument on that motion, the Court will grant plaintiff's motion to amend and consider the motion to dismiss Count III on its merits.⁴

B. Plaintiff Has Stated a Claim for Wrongful Discharge

Defendant moves to dismiss Count I of plaintiff's complaint, alleging wrongful discharge, for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Under District of Columbia law, "[a]n employee who serves at the will of his or her employer may be discharged `at any time and for any reason, or for no reason at all.'" Liberatore v. Melville Corp., 168 F.3d 1326, 1329 (D.C.Cir.1999) (quoting Adams v. George W. Cochran & Co., 597 A.2d 28, 30 (D.C. 1991)). District of Columbia law thus presumptively bars wrongful termination claims brought by at-will employees. See Holman v. Williams, 436 F.Supp.2d 68, 76 (D.D.C.2006).

District of Columbia courts recognize limited exceptions to this presumptive bar. In Adams v. George W. Cochran & Co., the District of Columbia Court of Appeals recognized a "very narrow" policy exception to this rule—a discharged employee may bring a wrongful termination claim when "the sole reason for the discharge is the employee's refusal to violate the law." Adams v. George W. Cochran & Co., 597 A.2d at 34. Despite plaintiff's argument to the contrary, she has not alleged any facts to support the conclusion that defendant discharged her because she refused to assist in the commission of unlawful acts. The conclusory assertion to this effect, see Compl. ¶ 16, is not sufficient under Bell Atlantic Corp. v. Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (to survive dismissal, plaintiff must furnish "more than labels and conclusions").

The District of Columbia Court of Appeals expanded the Adams exception slightly in Carl v. Children's Hospital, 702 A.2d 159 (D.C.1997), in which it stated that circumstances other than an employee's outright refusal to violate a law may constitute grounds for a public policy exception if the employee acted in furtherance of a public policy "solidly based on a statute or regulation that reflects the particular public policy to be applied or (if appropriate) on a constitutional provision...