UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

GINA ASKEW, : : Plaintiff, : : v. : Civil Action No. 08-1755 (JR) : MERIDIAN IMAGING SOLUTIONS, INC. : d/b/a MERIDIAN IMAGING : SOLUTIONS, et al., : : Defendants. :

MEMORANDUM

Gina Askew sues her former employer Meridian Imaging

Solutions, Inc., and several of the company’s employees and

shareholders, alleging that she was treated poorly, and

eventually fired, because of her efforts to seek medical

treatment and to utilize available worker’s compensation laws

after suffering an on-the-job injury. Her claims are for

retaliatory termination after she revealed her intent to file a

worker’s compensation claim, invasion of privacy (a Meridian

employee allegedly remained in the examination room when the

plaintiff was examined by a doctor), and intentional infliction

of emotional distress. The defense has filed for summary

judgment as to the first count, [Dkt. #7], and for judgment on

the pleadings as to counts two and three, [Dkt. #9]. For the

reasons set forth in this memorandum, those motions will be

granted. Motion to Dismiss

A motion under Fed.R.Civ.P. § 12(c) may be granted when

the movant shows that “no material fact is in dispute and that it

is entitled to judgment as a matter of law.” Khadr v. Bush, ---

F.Supp.2d ----,

(D.D.C. 2008) (citing Peters

v. Nat'l R.R. Passenger Corp.,

(D.C.Cir.

1992); Fed.R.Civ.P. §§ 12(c) and 56(c). When evaluating a motion

under Rule 12(c) the court will accept as true and accord

reasonable inferences to the allegations made in the non-movant’s

pleadings. Schuchart v. La Taberna Del Alabardero, Inc.,

(D.C. Cir. 2004); Haynesworth v. Miller,

, 1249 fn. 11 (D.C. Cir. 1987).

The Complaint

The following allegations of fact are taken as true for

purposes of this motion: The plaintiff was hired in June 2007 to

work as a dispatch operator in Meridian’s Alexandria, Virginia,

location. One month later, she was transferred to work as a

facilities administrator at Meridian’s facility at 18th Street,

N.W. in the District of Columbia, which provides copying services

for the American Red Cross. Compl. ¶¶ 11, 12. In late December

2007, she fell from a chair while reaching for a Post-it note.

Id. ¶ 14. She called Kristan Dixon, Meridian’s human resources

director, to tell her about the accident. Dixon told her to go

to the emergency room, and that the expenses were covered by

- 2 - workman's compensation. Id. ¶ 17. When the hospital would not

process the plaintiff for examination without certain payment

information she used her own insurance. Id. ¶ 19. She was

eventually discharged and told to go to an orthopedist. Id.

¶¶ 20-21.

Dixon assured the plaintiff that she would provide the

appropriate worker’s compensation paperwork so that the plaintiff

could set up an appointment with an orthopedist, but she failed

to do so twice, both times within a week of the plaintiff’s

injury. Id. ¶¶ 22, 23. The plaintiff proceeded to set up an

appointment with the orthopedist herself, using her personal

insurance. Id. ¶ 23. When Dixon found out that the plaintiff

had used her own insurance, her reaction was to tell the

plaintiff that she had only a slight strain, id. ¶ 26, and then a

few days later to require the plaintiff to cancel the appointment

and reschedule with a doctor approved by the worker’s

compensation company. Id. ¶ 28. The plaintiff balked at the

delay, claiming that she was in severe physical pain. Id. ¶ 28.

Dixon suggested that the plaintiff go back to the emergency room.

The plaintiff again requested via email the worker’s compensation

information, but Dixon did not respond. Id. ¶ 30.

Later that same day, the plaintiff’s workplace was

changed. She was transferred to Meridian’s facility on 2025 E

- 3 - Street N.W., in D.C., which also provided copy services to the

Red Cross. Id. ¶ 29.

The next day the plaintiff went to the emergency room,

id. ¶ 31, and the day after that she was told to report to

Meridian’s Alexandria, Va. office. There Dixon told the

plaintiff that she “has no rights, that the decisions were those

of the insurance company, that she could contact the Worker’s

Compensation Board in Richmond, VA if she had any questions,” and

that Dixon had called the orthopedist with whom the plaintiff had

made an appointment, Dr. Koenig, to say that Meridian would not

pay for the visit. Id. ¶ 33. When the plaintiff insisted on

seeing Koenig, Dixon suggested three doctors approved by the

worker’s compensation insurance company, made an appointment for

the plaintiff at a Dr. Alexander’s office, id. ¶ 34, drove the

plaintiff to the appointment, and filled out the appropriate

paperwork, id. ¶ 35. Dr. Alexander examined the plaintiff and

diagnosed her with an “impacted” collarbone. Id. ¶¶ 35-36.

The plaintiff followed Dixon’s suggestion that she call

the Worker’s Compensation Board, and learned that she could get a

referral from Alexander to Koenig. Id. ¶ 37. She made an

appointment with Koenig, id. ¶ 38, and secured the referral from

Dr. Alexander, id. ¶ 41, but she told nobody where she was when

she went to this appointment, to prevent obstruction by others of

her medical care. Id. ¶ 43.

- 4 - Dixon informed the plaintiff that she could make

appointments with a physical therapist, as recommended by

Dr. Alexander, for workdays after 3 P.M., and that she could go

home afterward. Id. ¶ 39. The therapist could not always

accommodate that schedule, so the plaintiff scheduled some

appointments in the morning, and others back-to-back. Id. at

¶ 44. When Dixon found out about the appointments before 3 P.M.,

she called the therapist to reschedule them. Id. ¶ 45. As a

result of this “meddling” the therapist would not schedule any

new appointments, and as a consequence the plaintiff did not

receive therapy for six weeks. Id. ¶ 46.

Dixon wrote up the defendant for being late to work,

for not reporting to work after her therapy, and for unauthorized

time out of the office (relating to her appointment with Koenig),

id. ¶ 48. Over the course of the next month, Dixon “continually

hounded and harassed the plaintiff regarding time and attendance

as well as accountability issues,” id. ¶ 50, and eventually wrote

her up for these infractions too, id. ¶ 51.

In February 2008, Dr. Alexander set up a functional

capability evaluation (FCE) test, id. ¶ 49, which the plaintiff

took in March, id. ¶ 50. Afterwards, Dixon approached the

plaintiff and asked why she had taken the test, stating that

Dr. Alexander had said that it was cancelled. Id. ¶ 53. Later

that month, Dixon again drove the plaintiff to an appointment

- 5 - with Dr. Alexander, where the doctor confirmed that the FCE test

had not been cancelled. Id. ¶ 55. Dixon entered the doctor’s

examination room and remained throughout the exam. Id. ¶ 5.

Some days after the CFE exam, the worker’s compensation

claim representative told the plaintiff that she would be able to

work. Id. ¶ 57. The plaintiff made an appointment in April 2008

with Dr. Alexander to review the FCE results. Id. ¶ 58. Dixon

drove the plaintiff to this appointment, too, and she asked to

speak with the doctor before the exam. When the plaintiff

“stated that she had no objections,” Dixon and the doctor

conferred outside. Id. ¶ 59. Dixon then asked to stay in the

exam room again, but this time the plaintiff objected. Id. ¶ 59.

When the doctor prescribed an MRI, Dixon made the appointment.

Id. ¶ 60.

Four days later, the plaintiff’s employment was

terminated. Id. ¶ 61. In July 2008, she was “given” twelve

percent permanent disability for her shoulder injury by

Dr. Alexander. Id. ¶ 62. The plaintiff asks for $7.5 million in

damages.

Invasion of Privacy

The choice of law applicable to this claim is disputed.

The defendants urge the application of Virginia law, which would

be dispositive because Virginia does not recognize claims for

invasion of privacy. The plaintiff, understandably, favors D.C.

- 6 - law. “When deciding state-law claims under diversity or

supplemental jurisdiction, federal courts apply the choice-of-law

rules of the jurisdiction in which they sit.” Mastro v. Potomac

Elec. Power Co.,

(D.C. Cir. 2006) (quoting

Ideal Elec. Sec. Co. v. Int'l Fidelity Ins. Co.,

(D.C. Cir. 1997)). The jurisdiction in which I sit “follows

the ‘substantial interest’ position of the Restatement (Second)

of Conflict of Laws (1971) § 145, under which the court will

‘balance the competing interests of the two jurisdictions, and

apply the law of the jurisdiction with the more “substantial

interest” in the resolution of the issue.’” Jaffe v. Pallotta

TeamsWorks,

(D.C. 2004). “This inquiry is to

include consideration of several contacts, including (1) the

place where the injury occurred, (2) the place where the conduct

causing the injury occurred, (3) the domicile, residence,

nationality, place of incorporation and place of business of the

parties, and (4) the place where the relationship is centered.”

Jaffe,

(internal citation and quotation

omitted).

The plaintiff’s invasion of privacy claim is based

entirely on Dixon remaining in the room when the plaintiff was

being examined by Dr. Alexander at his office in Alexandria,

Virginia, and so both the injury and the conduct that caused the

injury occurred in Virginia. Compl. ¶¶ 70, 71. Meridian also

- 7 - has offices in Virginia, and the plaintiff was initially hired to

work in the Alexandria copy center as a dispatcher. Compl. ¶ 11.

These considerations, together with Virginia’s interest in

ensuring that its privacy law is consistently applied in doctor’s

offices within its borders, weigh conclusively in favor of

Virginia law. See Jaffe v. Pallotta TeamsWorks,

(D.C. 2004) (affirming the district court’s choice of

Virginia law for a negligence and wrongful death action when the

plaintiff’s “death and the medical care leading to it occurred in

Virginia.”). Because Va.Code. Ann. § 8.01-40, which involves the

misappropriation of an individual’s likeness, provides the only

remedy under Virginia law for invasion of privacy, the

plaintiff’s claim must be dismissed. WJLA-TV, et al. V. Levin,

, 395 fn. 5 (Va. 2002).

Intentional Infliction of Emotional Distress

The parties also dispute the choice of law for the IIED

claim, with the plaintiff again favoring District of Columbia law

over Virginia law. The choice here, however, involves

distinctions with very little difference: As a matter of law, the

facts alleged in the complaint cannot establish liability under

either state’s jurisprudence.

In D.C., “[t]o establish a prima facie case of

intentional infliction of emotional distress, a plaintiff must

show (1) extreme and outrageous conduct on the part of the

- 8 - defendant which (2) either intentionally or recklessly (3) causes

the plaintiff severe emotional distress.” Larijani v. Georgetown

University,

(D.C. 2002) (emphasis in original).

“The conduct alleged must be ‘so outrageous in character, and so

extreme in degree, as to go beyond all possible bounds of

decency, and to be regarded as atrocious, and utterly intolerable

in a civilized community.’”1 Bryant v. The Orkand Corp.,

(D.D.C. 2005) (quoting Homan v. Goyal,

(D.C. 1998)). Similarly, in Virginia, “the tort has

four elements that must be proved: 1) the wrongdoer's conduct was

intentional or reckless; 2) the conduct was outrageous or

intolerable; 3) there was a causal connection between the

wrongdoer's conduct and the resulting emotional distress; and

4) the resulting emotional distress was severe.” Almy v.

Grisham,

(Va. 2007). The conduct alleged

must be “‘so outrageous in character, and so extreme in degree,

as to go beyond all possible bounds of decency, and to be

regarded as atrocious, and utterly intolerable in a civilized

community.’” Almy,

(quoting Russo v. White,

(Va. 1991). “[L]iability arises only when the

emotional distress is extreme, and only where the distress

1 One decision states that an IIED case can be “made out only if the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim ‘Outrageous!’” Larijani v. Georgetown University,

(D.C. 2002).

- 9 - inflicted is so severe that no reasonable person could be

expected to endure it.” See Russo v. White,

,

(Va. 1991) (affirming demurrer when “t]here [wa]s

no claim, for example, that she had any objective physical injury

caused by the stress, that she sought medical attention, that she

was confined at home or in a hospital, or that she lost

income.”).

The plaintiff’s allegations of emotional distress in

both the complaint and her declaration are entirely conclusory

and unsupported by any specifics, and are therefore insufficient

as a matter of law to support that element of her IIED claim.

Nor does the plaintiff point to any specific factual allegation

that would support a finding of sufficiently outrageous behavior,

whether her employer’s conduct is considered “intra-workplace”

mistreatment, Kerrigan v. Britches of Georgetowne, Inc.,

, (D.C. App. 1997) (holding as insufficient to support an IIED

claim allegations that an employer “targeted [the plaintiff] for

a sexual harassment investigation, manufactured evidence against

him in order to establish a false claim of sexual harassment,

leaked information from the investigation to other employees, and

unjustifiably demoted him to the position of store manager in

order to promote a woman to his position.”) (internal citation

omitted), or otherwise, see Kassem v. Washington Hosp. Center,

(D.C. Cir. 2008)(holding as sufficient to

- 10 - survive a motion to dismiss an allegation that “after [the

defendant] fired [the plaintiff] from his position, it

intentionally filed a false charge against him . . . a charge

that could have prevented him from working as a nuclear

technologist and subjected him to criminal penalties.”).

Summary Judgment

Summary judgment "should be rendered if the pleadings,

the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any material

fact and that the movant is entitled to judgment as a matter of

law." Fed. R. Civ. P. 56(c). A genuine issue of material fact

exists if the evidence "is such that a reasonable jury could

return a verdict for the nonmoving party." Anderson v. Liberty

Lobby, Inc.,

(1986).

The parties agree that Virginia law applies to the

retaliation claim. Pl. Opp at 15-20; MTD1 at 5-7. The relevant

statute, Va. Code § 65.2-308, states that

No employer or person shall discharge an employee solely because the employee intends to file or has filed a claim under this title or has testified or is about to testify in any proceeding under this title. The discharge of a person who has filed a fraudulent claim is not a violation of this section.

(A) (emphasis added). Even assuming that

the plaintiff has produced enough evidence from which a

reasonable jury could find both that the plaintiff intended to

- 11 - file a worker’s compensation claim and that her employers knew

this, the plaintiff has failed to meet her burden of showing that

retaliation was the sole reason for the discharge, because the

defendants have produced unrefuted evidence that both economic

factors and Meridian’s internal policies played a large, if not

definitive, role in the plaintiff’s termination.

As discussed above, the plaintiff worked at facilities

in D.C. in which Meridian provided copy services for the Red

Cross. According to Meridian’s uncontroverted evidence, by early

2007, about the time when the plaintiff began working at

Meridian, the volume of copy services provided by Meridian to the

Red Cross began to decline dramatically. MSJ at 2 (citing

Edwards Aff. ¶ 9). In October 2007, Meridian and Red Cross

officials met to discuss this decline and Meridian recommended

cuts in staffing and photocopiers. Edwards Aff ¶ 9. By December

2007, Meridian stopped staffing its Red Cross copy facility in

Virginia altogether. Edwards Aff ¶ 11. Things worsened to the

point to where some months the 18th Street copy center had no

copy projects at all. Edwards Aff. ¶ 15. In January 2008, the

Red Cross publicly stated that it was cutting one third of its

staff. Edwards Aff ¶ 16. Meridian again approached the Red

Cross about reducing staff and removing unused equipment.

Edwards Aff. ¶ 18.

- 12 - According to Meridian’s evidence, it was because of

these economic factors that in April 2008, the defendants decided

to eliminate a position at the 2025 E Street facility, where the

plaintiff worked. Edwards Aff ¶ 19; Dixon Aff ¶ 24; Opp ex. 5

(the plaintiff’s severance letter). Meridian’s affiants also

testify that it was Meridian’s policy to eliminate the position

of the last employee assigned to a facility. Edwards Aff. ¶ 22;

Dixon Aff. at 24. This is supported by the text of the severance

letter, and it is undisputed that the plaintiff was “last in.”

Opp ex. 5.

The plaintiff argues that the severance letter implies

that the defendants had some discretion in their policy, that the

existence of the policy is insufficiently supported, that the

defendant has been inconsistent in its reasons for terminating

the plaintiff, and that there is an admitted exception to the

policy in that Meridian can also choose to discharge employees

who had written warnings in their file and were already in

jeopardy of being fired. Opp. at 17. But the purported

inconsistencies for why Meridian terminated the plaintiff are

unsupported by record citation, it is undisputed that neither of

the other two employees being retained at the 2025 E Street

location had ever been given written warnings, and the existence

of the policy and its application to plaintiff are supported by

both the severance letter and two affiants. Edwards Aff. at 20;

- 13 - Dixon Aff. at 23; Opp ex. 5. The plaintiff also implies that

Meridian transferred her to the 2025 E Street facility (four

months before her discharge) in order to use the policy to fire

her, Pl. Opp. 17-18, but this assertion is entirely unsupported

and is contradicted by the defendants’ evidence.

Given the undisputed evidence, no reasonable juror

could find that plaintiff’s intent to file a worker’s

compensation claim was the sole reason for her dismissal.

Conclusion

For the above discussed reasons, judgment will be

entered for the defendants on the retaliation count, and the IIED

and invasion of privacy counts will be dismissed. An appropriate

order will accompany this memorandum.

JAMES ROBERTSON United States District Judge

- 14 -