UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SHEILA WATSON HOPKINS

Plaintiff, v. Civil Action No. 10-900 (JDB) BLUE CROSS AND BLUE SHIELD ASSOCIATION,

Defendant.

MEMORANDUM OPINION

Plaintiff Sheila Watson Hopkins brings this action against defendant Blue Cross and Blue

Shield Association raising four claims related to her employment termination: breach of contract,

wrongful termination in violation of public policy, intentional interference with a prospective

economic advantage, and negligent supervision. Defendant moves to dismiss plaintiff's complaint

in its entirety pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim

upon which relief can be granted or, in the alternative, moves for summary judgment under Fed.

R. Civ. P. 56. For the reasons discussed below, the Court will grant defendant's motion to dismiss

plaintiff's claims for breach of contract, intentional interference with a prospective economic

advantage, and negligent supervision. As for plaintiff's claim of wrongful termination in violation

of public policy, the Court grants summary judgment in favor of defendant.

BACKGROUND

Plaintiff asserts four claims stemming from her termination of employment on May 15,

2009. Plaintiff was hired as an Executive Secretary at defendant Blue Cross and Blue Shield

-1- Association ("BCBSA") in 1988. See Plaintiff's Complaint ("Compl.") ¶ 8. She was promoted in

1995 to the position of Congressional Liaison/Coordinator and in 2001 was offered and accepted

the position of Assistant to the Executive Director of Political Affairs. Id. ¶ 9-10. In 2004, Ms.

Kathy Didawick was promoted to the position of Executive Director of Political Affairs and

served as plaintiff's manager for the period covering this suit. Id. ¶ 14, 16. In addition to her role

at BCBSA, Ms. Didawick also served as Chairman of the Children's 2009 Hospital Vintage

Affair, a Co-Chair of the Finance Committee for the March of Dimes Gourmet Gala, a Board

member of the American Red Cross National Capital Area Invitational Golf Tournament

Committee, and a Board member at the non-profit organization A Hand Up. Id. ¶ 17.

Beginning in January 2009, plaintiff alleges, Ms. Didawick began assigning her work

outside of her role as Assistant to the Executive Director of Political Affairs. Id. ¶¶ 22, 24, 26,

33-36, 38-40, 42-49, 52-54, 76. Specifically, plaintiff asserts that she was required to update Ms.

Didawick's BCBSA calender with meetings concerning events for the March of Dimes, update

Ms. Didawick's "to do" list and compile an address list concerning the Children's Hospital

Vintage Affair, schedule a meeting for the A Hand Up Board, and perform other clerical tasks

related to these charity events. Id. ¶¶ 36, 38, 42, 43, 52, 54. Plaintiff states that she had

"reservations" concerning these assignments, but ultimately completed the tasks. Id. ¶¶ 23, 25,

35, 37.

In April of 2009, plaintiff applied for a position with Ms. Kimberly Bolton, the Director

of Communication. Id. ¶ 70. Plaintiff asserts that Ms. Bolton had been told by Ms. Alissa Fox,

Vice President of Policy, that she was prohibited from interviewing plaintiff for any position

because of statements made by Ms. Didawick concerning plaintiff. Id. ¶¶ 50, 70. On May 15,

-2- 2009, BCBSA terminated plaintiff's employment. Id. ¶ 56.

STANDARD OF REVIEW I. Motion to Dismiss

All that the Federal Rules of Civil Procedure require of a complaint is that it contain "'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.'" Bell

Atl. Corp. v. Twombly,

(2007) (quoting Conley v. Gibson,

(1957)); accord Erickson v. Pardus,

(2007) (per curiam). 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." Twombly,

; see also Papasan v. Allain,

(1986). "To survive a motion to dismiss,

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,

(2009) (quoting Twombly,

); accord Atherton v. District of Columbia Office of the Mayor,

(D.C. Cir. 2009). A complaint is plausible on its face "when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged." Iqbal,

. This amounts to a "two-pronged approach" under

which a court first identifies the factual allegations entitled to an assumption of truth and then

determines "whether they plausibly give rise to an entitlement to relief."

.

The notice pleading rules are not meant to impose a great burden on a plaintiff. Dura

Pharm., Inc. v. Broudo,

(2005); see also Swierkiewicz v. Sorema N.A.,

(2002). When the sufficiency of a complaint is challenged by a motion to

-3- dismiss under Rule 12(b)(6), the plaintiff's factual allegations must be presumed true and should

be liberally construed in his or her favor. Leatherman v. Tarrant County Narcotics &

Coordination Unit,

(1993); Phillips v. Bureau of Prisons,

(D.C. Cir. 1979); see also Erickson,

(citing Twombly,

). The

plaintiff must be given every favorable inference that may be drawn from the allegations of fact.

Scheuer v. Rhodes,

(1974); Sparrow v. United Air Lines, Inc.,

(D.C. Cir. 2000). However, "the court need not accept inferences drawn by plaintiffs if such

inferences are unsupported by the facts set out in the complaint." Kowal v. MCI Commc'ns

Corp.,

(D.C. Cir. 1994). Nor does the court accept "a legal conclusion

couched as a factual allegation," or "naked assertions [of unlawful misconduct] devoid of further

factual enhancement." Iqbal,

(internal quotation marks omitted); see also

Aktieselskabet AF 21. November 21 v. Fame Jeans Inc.,

, 17 n.4 (D.C. Cir. 2008)

(explaining that the court has "never accepted legal conclusions cast in the form of factual

allegations").

II. Summary Judgment

Summary judgment is appropriate when the pleadings and the evidence demonstrate that

"there is no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law." Fed. R. Civ. P. 56(a). The party seeking summary judgment bears the initial

responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex

Corp. v. Catrett,

(1986). The moving party may successfully support its

motion by identifying those portions of "the record, including depositions, documents,

electronically stored information, affidavits or declarations, stipulations (including those made for

-4- purposes of motion only), admissions, interrogatory answers, or other materials," which it

believes demonstrate the absence of a genuine issue of material fact. Fed. R. Civ. P. 56(c)(1); see

Celotex,

.

In determining whether there exists a genuine dispute of material fact sufficient to

preclude summary judgment, the court must regard the non-movant's statements as true and

accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty

Lobby, Inc.,

(1986). A non-moving party, however, must establish more than

the "mere existence of a scintilla of evidence" in support of its position.

. By pointing

to the absence of evidence proffered by the non-moving party, a moving party may succeed on

summary judgment. Celotex,

. "If the evidence is merely colorable, or is not

significantly probative, summary judgment may be granted." Anderson,

(citations omitted). Summary judgment is appropriate if the non-movant fails to offer "evidence

on which the jury could reasonably find for the [non-movant]."

.

DISCUSSION

I. Claim One: Breach of Contract

In her complaint, plaintiff asserts that defendant breached her employment contract by

assigning her work outside of her job description. Compl. ¶¶ 22, 24, 26, 33-36, 38-40, 42-49, 52-

54, 76. District of Columbia law has long established that "unless a contrary contractual intent is

clearly expressed, all employment is at-will." Turner v. Federal Express Corp.,

(D.D.C. 2008) (citing Green v. Bowne of N.Y. LLC,

at

*1-2 (D.D.C. Sept. 5, 2002)). Under the at-will employment doctrine, the employment

relationship can be terminated by either party for any reason, or no reason, at any time. See

-5- Adams v. George W. Cochran & Co.,

(D.C. 1991); Lance v. United Mine

Workers of America 1974 Pension Trust,

(D.D.C. 2005). An implied

employment contract, however, can be created when the policies and procedures implemented by

the employer do not coincide with the employment-at-will doctrine. For example, an implied

contract may "arise from the language of an employee handbook or manual" that is at odds with

the principles of at-will employment. Carter v. George Wash. Univ.,

(D.D.C. 2001) (citing Washington Welfare Ass'n, Inc. v. Wheeler,

(D.C.

1985)).

Plaintiff contends that an implied employment contract was created through the

defendant's policies, including the BCBSA Policy document 210: Code of Business Conduct

Standard and Ethics Guidelines for Association Business Practices and the BCBSA 2008

Compensation and Performance Guidelines for Managers. See Pl's Mem. in Opp'n to Def's Mot.

for Summ. J. ("Opp'n") at 5-6. Plaintiff asserts that she was entitled to rely on these documents

because they "relate to employment relationship [sic], employee behavior and provide procedural

requirements to be complied with and conduct to be avoided." Opp'n at 6. In response, defendant

points to the disclaimer BCBSA placed on its human resources ("HR") materials as evidence that

no implied contract was created. See Def's Mot. to Dismiss ("Def's Mot.") at 6-7. The language

in the disclaimer clearly confirms the existence of an at-will employment relationship:

BCBSA reserves the right to eliminate, change, or modify this policy at any time. Also, the language used in this policy should not be construed as creating a contract of employment between BCBSA and any of its employees or otherwise altering an employee's at-will employment relationship with BCBSA.

Def's Mot. at 7; Opp'n at 7.

-6- Of course, the mere existence of a disclaimer is not enough, on its own, to dispel whether

the parties created an implied contract. See Strass v. Kaiser Found. Health Plan of Mid-Atlantic,

(D.C. 2000). If a disclaimer is "rationally at odds with other language"

in the employee manual and employer documents, then the presence of a disclaimer is not

dispositive as to the issue of whether an implied contract has been created. Greene v. Howard

Univ.,

(D.C. Cir. 1969). Although the D.C. Circuit has acknowledged that

language that is at odds with the disclaimer and "clear enough in limiting the right to terminate to

specific causes or events" may overcome the presumption of at-will employment, a disclaimer

that "clearly reserve[s] the employer's right to terminate at will" will be enforced. United States

ex rel. Yesudian v. Howard Univ.,

(D.C. Cir. 1998) (citing Sisco v. GSA Nat'l

Capital Fed. Credit Union,

(D.C. 1997)).

Here, the disclaimer contained in BCBSA HR materials clearly establishes that the HR

manuals and distributed polices do not alter any employee's at-will status at BCBSA. Plaintiff

argues that an implied contract exists because the disclaimer did not appear in a limited number of

BCBSA policy documents. Opp'n at 5. The Court does not agree. The sections of the BCBSA

2008 Compensation and Performance Guidelines for Managers that plaintiff refers to are not

"rationally at odds" with the disclaimer language. See Greene,

; Opp'n at 6;

Def's Reply Mem. at 3. Hence, the language of the policy documents does not overcome the

presumption of at-will employment. There is simply no doubt that an at-will employment

relationship existed between the parties and that it was not altered by any BCBSA HR materials,

and therefore plaintiff's claim of breach of contract will be dismissed.

-7- II. Wrongful Termination

In the District of Columbia, it is well established that at-will employment can be

terminated for any reason, or no reason, at any time by either party. See Adams v. George W.

Cochran & Co.,

(D.C. 1991). However, a very narrow exception to the at-will

doctrine commonly referred to as the "public policy exception" is recognized.

Originally, this exception was narrowly crafted to protect employees "when the sole

reason for the discharge [was] the employee's refusal to violate the law, as expressed in state or

municipal regulation."

. In Adams, the court recognized the unfair and unproductive

situation employees faced when forced to choose between breaking the law and keeping their job.

The public policy exception serves to protect these employees from otherwise legal

termination under the at-will doctrine.

For several years after Adams, courts required a

plaintiff raising a public policy exception as part of a wrongful discharge claim to show by a

preponderance of the evidence that the sole reason for the wrongful discharge was the employee's

refusal to violate the law.

. However, recognizing the limitations of this exception, the

court in Carl v. Children's Hosp.,

(D.C. 1997), created a case-by-case standard that

included those claims "solidly based on a statute or regulation that reflects that particular public

policy to be applied or (if appropriate) on a constitutional provision concretely applicable to the

defendant's conduct." Carl,

. This new standard expanded the public policy

exception, but plaintiffs still must show that the exception is "firmly anchored either in the

Constitution or in a statute or regulation which clearly reflects the particular public policy being

relied upon."

. It has been found, for example, that plaintiffs that can demonstrate a

close fit between their employment termination and the public policy embodied in whistler

-8- blower or workplace safety laws can succeed under a Carl analysis. See Warren v. Coastal Intern.

Sec., Inc.,

(D.C. Cir. 2004); Davis v. Gables Residential/H.G. Smithy,

(D.D.C. 2007). The relationship between the relevant statute or

regulation and the proscribed conduct must be "carefully tethered . . . [and] . . . solidly based."

Carl,

.

Here, the success of plaintiff's claim of wrongful termination hinges on two factors: (1)

whether the clerical tasks plaintiff was assigned to complete for her supervisor Ms. Didawick

were outside the scope of her job description; and (2) if so, was plaintiff's termination closely tied

to the public policy mandate recognized in section 501(c)(3) of the Internal Revenue Code

("IRC").

Ultimately, plaintiff fails to satisfy the requirements for a successful wrongful termination

in violation of public policy claim under either the Adams or the Carl framework. She cannot

succeed under an Adams assessment, because she agreed to perform these tasks several times and

thus was not terminated solely for her refusal to violate the law. See Riggs v. Home Builders

Inst.,

(D.D.C. 2002) (emphasizing that the plaintiff would not succeed

under an Adams framework "first because of his failure to refuse to violate the laws, and second,

because the 'sole reason' for his termination could not have been his refusal to violate the law"

(citing Thigpen v. Greenpeace Inc.,

(D.C. 1995))(emphasis in original)).

Moreover, plaintiff's claim also fails under the more lenient Carl analysis. Plaintiff asserts

that the clerical tasks she was assigned to perform were outside of her job description and the

proper function of the BCBSA, and thus threatened to put the Association's tax-exempt status at

risk. Opp'n at 10. To succeed under Carl, plaintiff must "specify precisely how the alleged

-9- activities violate section 501(c)(3) under the relevant regulations." Riggs, 203 F. Supp at 13-14.

It is clear that "as with the policy of protecting public health [recognized in earlier public policy

cases], there is a clear mandate of public policy against the subsidization of private political

activity by the taxpayers . . . that is solidly based on section 501(c)(3)." Id. at 21. But plaintiff

has failed to establish the close fit between the public policy mandate and the conduct in question

here. There is, of course, nothing political about the clerical tasks plaintiff was allegedly required

to do.

The court "'need only decide' whether the firing, because of the plaintiff's conduct, 'is

sufficiently within the scope of the policy embodied in the statute so that a court may consider

imposing liability on [the defendant] for [the plaintiff's] termination for otherwise permissible

reasons.'" Riggs, 203 F. Supp. at 21 (quoting Carl,

). The clerical work plaintiff

alleges she was required to perform, however, does not appear to be the type of activity with

which section 501(c)(3) is concerned. Under section 501(c)(3), an organization will not

operationally qualify for tax-exempt status if a substantial part of its activities furthers a non-

exempt purpose. See § 501(c)(3)-1(c)(1). Although a single non-exempt purpose can defeat the

exemption if it is "substantial in nature," the facts alleged by plaintiff do not support such a

finding. See Better Business Bureau v. United States,

(1945).

Plaintiff asserts that defendant required her to perform numerous tasks outside her job

description, but she "does not specify precisely how the alleged activities violate section

501(c)(3)." Riggs,

. Again, even if beyond the scope of her regular

assignments, the tasks she performed had no political purpose or appearance that would offend

section 501(c)(3). Plaintiff merely "disagreed with management decisions and [has] not allege[d]

-10- a violation of law or action contrary to public policy." Liberatore v. Melville Corp.,

(D.C. Cir. 1999). Hence, plaintiff's complaint fails to satisfy the second prong of

Carl, which requires a "close fit between the policy thus declared and the conduct at issue in the

allegedly wrongful termination." Id. at 21.

Because matters outside the pleadings have been presented to the court on this claim, it

must be treated as one for summary judgment under Rule 56. See Fed. R. Civ. P. 12(d).

Although the party seeking summary judgment bears the initial responsibility of demonstrating

the absence of a genuine issue of material fact, the non-moving party must establish more than the

"mere existence of a scintilla of evidence in support of its position." Anderson ,

.

Plaintiff presents no evidence that the tasks she was assigned to perform varied substantially from

the purpose of BCBSA's tax-exempt status such that it put the Association's status under section

501(c)(3) in jeopardy. In addition, the complaint and attached documents, including affidavits

and exhibits, do not show that the conduct at issue in plaintiff's termination was within the scope

of the policy behind section 501(c)(3) such that the relationship between section 501(c)(3) and the

proscribed conduct is "carefully tethered . . . [and] . . . solidly based." Carl,

. The

Court must therefore grant defendant's motion for summary judgment on the claim of wrongful

termination.

III. Intentional Interference with Prospective Economic Advantage

The "tort of intentional interference with a prospective business advantage runs 'parallel

to that for interference with existing contracts.'" PM Servs. Co. v. Odoi Assocs.,

, *108 (D.D.C. Jan. 4, 2006) (citing Brown v. Carr,

(D.C.

1986)). To succeed on a claim for intentional interference with a prospective business

-11- advantage, a plaintiff must show "(1) the existence of a valid business relationship or

expectancy; (2) knowledge of the relationship or expectancy on the part of the interferer; (3)

intentional interference inducing or causing a breach or termination of the relationship or

expectancy; and (4) resultant damage." Browning v. Clinton,

(D.C. Cir.

2002) (citing Bennett Enters. v. Domino's Pizza, Inc.,

, 499 (D.C. Cir. 1995)). And

to survive a motion to dismiss, the plaintiff must "allege 'business expectancies, not grounded in

present contractual relationships, but which are commercially reasonable to expect.'" PM Servs.

Co., 2006 U.S. Dist. LEXIS at *109 (citing Sheppard v. Dickstein, Shapiro, Morin & Oshinsky,

(D.D.C. 1999)). The expectancies most often protected by the courts can

best be classified as future contractual relations, such as the prospect of obtaining employment or

the opportunity to obtain and establish customer relations. See Carr v. Brown,

(D.C. 1978).

Here, plaintiff asserts that her supervisor, Ms. Didawick, interfered with her prospect of

obtaining employment. Plaintiff alleges that Ms. Didawick told Ms. Bolton that she did not want

Ms. Bolton to interview plaintiff for a position with the Manager of Communications. See Opp'n

at 19. Plaintiff argues that "but for the actions of Kathy Didawick, [she] would have been

selected for the position." See Opp'n at 20. However, plaintiff fails to address, let alone

articulate facts sufficient to meet, the four-part standard set out in Browning v. Clinton.

Although plaintiff might be able to meet the first two requirements – that a valid business

expectancy existed because she was the only employee qualified for the position and that Ms.

Didawick, as an agent of BCBSA, knew of that expectancy – her claim fails on the third prong of

the analysis, under which plaintiff must show "intentional interference inducing or causing a

-12- breach or termination of the relationship or expectancy." Browning,

. 1 In order

to satisfy this prong, the conduct at issue must rise to the level of "egregious conduct such as

libel, slander, physical coercion, fraud, misrepresentation, or disparagement." Sheppard, 50 F.

Supp. 2d at 34 (citing Genetic Sys. Corp., v. Abbott Labs.,

(D.D.C.

1998)). Throughout her complaint and memorandum in opposition, plaintiff fails to articulate

the precise conversation that serves as the basis for her intentional interference with a

prospective economic advantage claim. She alleges only that Ms. Didawick told a BCBSA

employee that she did not care for the plaintiff. See Opp'n at 19. Accepting plaintiff’s allegation

as true, as the court must, the fact that Ms. Didawick informed a BCSBA employee that she did

not care for plaintiff does not rise to the required level of libel, slander, misrepresentation, or

disparagement.

Furthermore, "an employer cannot interfere with its own contract." McManus v. MCI

Commc'ns Corp.,

(D.C. 2000); see also American Petroleum Inst. v.

Technomedia Int'l, Inc., No. 09-529,

; Donohoe v. Watt,

, 757 (D.D.C. 1982) (holding that "a defendant's conduct under his own contract

with the plaintiff may or may not rise to the level of a breach of that contract, but it cannot

support an action for interference with it"). Tortious interference with an employment contract

arises only when "there is an interference with a contract between the plaintiff and a third party."

1 The Court rejects defendant’s argument that plaintiff fails to satisfy the first prong of the intentional interference with prospective economic advantage test because plaintiff neglected to specify exactly which of the two available jobs she applied for in her complaint. See Def's Mot. at 12. The pleading requirements under Fed. R. Civ. P. 12(b)(6) place a minimal burden on the plaintiff in order to survive a motion to dismiss, requiring merely a short and plain statement establishing that the plaintiff is entitled to relief and providing the defendant with sufficient notice. See Twombly,

. Plaintiff’s statements that she sought to apply for the open position with the Manager of Communications and that Ms. Bolton made the alleged comment are sufficient to provide defendant with notice of the claim and the grounds upon which it rests.

-13- Donohoe, 546 F. Supp at 757. But here, plaintiff complains only of interference by her employer

with her future employment with that same employer. Hence, plaintiff's claims against her

employer BCBSA for its alleged interference with her future employment at BCBSA must fail.

IV. Negligent Supervision

Finally, plaintiff alleges that defendant failed to properly supervise Ms. Didawick and

ensure that plaintiff was not given assignments outside of her job description and in conflict with

the tax exempt status of BCBSA. See Opp'n at 19. To establish a claim for negligent

supervision, a plaintiff must show that “(1) the . . . employee behaved in an incompetent or

dangerous manner; (2) [the employer] had actual or constructive knowledge of the employee’s

incompetent or dangerous behavior; and (3) despite having this actual or constructive knowledge,

[the employer] failed to adequately supervise the employee.” Mitchell v. DCX, Inc.,

(D.D.C 2003); see also Giles v. Shell Oil Corp.,

(D.C. 1985).

Plaintiff has not done so.

To begin, plaintiff's claim must fail because the Court has dismissed her claims of

wrongful discharge and intentional interference with economic advantage. She no longer has a

claim that can serve as the common law predicate for the negligent supervision claim. Griffin v.

Acacia Life Ins. Co.,

(D.C. 2007); Carroll v. Fremont Inv. & Loan,

(D.D.C. 2009). A common law claim of negligent supervision must be

predicated on common law causes of action or duties otherwise imposed by the common law.

Griffin,

.

Moreover, plaintiff fails to provide adequate factual allegations to establish any dangerous

or incompetent behavior on the part of the defendant. Plaintiff references trips to Starbuck's,

-14- performing clerical work allegedly outside her job requirements, Ms. Didawick’s general dislike

for her, and alleged misuse of corporate resources. See Opp'n at 23; Compl. ¶ 76. This is not an

instance of an agent of the employer engaging in inherently dangerous activity. Plaintiff must

demonstrate that BCBSA knew or should have known its employee behaved in a dangerous or

otherwise incompetent manner and that BCBSA, "armed with that actual or constructive

knowledge, failed to adequately supervise the employee." Brown v. Argenbright Sec., Inc.,

(D.C. 2001) (citing Giles,

). Here, plaintiff has failed to offer any

evidence that the defendant knew or should have known that Ms. Didawick behaved in an

incompetent or dangerous manner in the past or even in the instant circumstance. This Court does

not find that Starbuck's runs and one employee expressing dislike for another employee rise to the

level of incompetent or dangerous behavior required to support the tort of negligent supervision.

Therefore, because plaintiff has not pled an underlying common law tort upon which a

claim of negligent supervision can be based, and has not alleged sufficient facts to show

incompetent or dangerous behavior, plaintiff's claim of negligent supervision must be dismissed.

CONCLUSION

Accordingly, the Court will dismiss plaintiff's claims for breach of contract, intentional

interference with prospective economic advantage, and negligent supervision, and will grant

summary judgment in favor of the defendant on plaintiff's claim of wrongful termination in

violation of public policy. A separate order has been issued on this date.

/s/ JOHN D. BATES United States District Judge

Dated: December 21, 2010

-15-