UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________________ ) LILLIE M. MIDDLEBROOKS, ) ) Plaintiff, ) ) v. ) Civil Action No. 09-02048 (ESH) ) GODWIN CORPORATION, et al., ) ) Defendants. ) __________________________________________)

MEMORANDUM OPINION

Plaintiff Lillie Middlebrooks, proceeding pro se, has sued defendants Godwin

Corporation (“Godwin”), Janice Williams, Karen P. Watts, and the District of Columbia (“the

District”) for discrimination on the basis of race and color, retaliation, and hostile work

environment in violation of the Civil Rights Act of 1866,

; discrimination on

the basis of race and color in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. §

2000d; discrimination, retaliation, and hostile work environment in violation of the District of

Columbia Human Rights Act (“DCHRA”),

-1404.04; promissory

estoppel; negligent supervision; and wrongful termination in violation of D.C. public policy.

Before the Court are defendants’ motions to dismiss 1 under Federal Rule of Civil Procedure

12(b)(6) for failure to state a claim upon which relief may be granted. Upon review of the

parties’ legal memoranda and the applicable law, the Court will grant defendants’ motions.

1 The District and Watts filed a motion to dismiss on March 26, 2010. Godwin and Williams filed a motion to dismiss on May 17, 2010. BACKGROUND

Plaintiff alleges that in 2008, Godwin was awarded a two-year contract from the District

of Columbia Department of Health (“DCDOH”) to provide healthcare staffing for the District of

Columbia Healthy Start Program (“Healthy Start”). (Compl. ¶ 11.) According to plaintiff,

Healthy Start is federally funded by the U.S. Department of Health and Human Services and

is “designed to reduce infant mortality [and] premature infant births and to promote healthy

lifestyles among pregnant and parenting women residing in Wards 5, 6, 7, and 8 of the District of

Columbia.” (Id. ¶¶ 16-17.) Plaintiff alleges that she was interviewed and hired by defendant

Williams, an African-American female, in July 2008 as a “contract at will employee” of Godwin

to work as a Registered Nurse on behalf of Godwin for the DCDOH. (Id. ¶¶ 6, 9, 12.) When

plaintiff reported for work at the DCDOH on or about August 1, 2008, defendant Watts, also an

African-American female, assigned her to work as a nurse case manager in Healthy Start to assist

with a pilot program focused on high risk pregnant and parenting women. (Id. ¶¶ 8, 15, 27.)

Watts also assigned two family support workers, Kenya Singleton and Erica Proctor, to work in

the pilot program with plaintiff. (Id. ¶ 28.) According to plaintiff, Singleton is a “dark skinned

African-American female” and Proctor is a “milk chocolate African-American female.” (Id. ¶¶

29, 31.)

Plaintiff alleges that after a month of working with Singleton and Proctor, she filed a

written complaint of a hostile work environment against them with Watts. (Id. ¶¶ 34-35.)

According to plaintiff, she was subjected to a hostile work environment when she overheard

Proctor and Singleton making “rude condescending” remarks about plaintiff to another employee

2 and about Healthy Start clients’ economic status. 2 (Id. ¶¶ 37-41.) Plaintiff also claims that she

overheard a “sexual[ly] explicit” conversation among Singleton, Proctor, and other Godwin

employees that “primarily focused on their sex lives.” (Id. ¶ 42.) Plaintiff asserts that based on

this behavior, she requested reassignment to a different program. (Id. ¶ 43.) Although her

request was denied, another case manager volunteered to oversee Singleton while plaintiff

supervised a different support worker, Claudia Queen. (Id. ¶¶ 45-46.) Plaintiff alleges that

Proctor then made false allegations against Queen, and that based on those allegations and other

unspecified “conniving and devious acts” by Singleton and Proctor, she filed complaints against

them with Williams on October 2, 2008, stating that their behavior subjected plaintiff to “an

extreme hostile work environment.” (Id. ¶¶ 47-51, 54.) According to plaintiff, despite Williams’

promises to stop the “hostile working conditions,” Williams ignored plaintiff’s requests. (Id. ¶¶

54-55.)

Plaintiff alleges that in October 2008, she encountered several difficulties with Proctor

and Singleton as a result of their purportedly substandard care for Health Start clients. (Id. ¶¶

57-63.) According to plaintiff, Singleton violated Healthy Start policy by touching the stomach

of a Healthy Start client, taking her blood pressure, and inquiring of her weight. (Id. ¶¶ 63-66,

68.) Plaintiff maintains that upon learning this information, she made an appointment with Watts

for October 27, 2008. (Id. ¶¶ 64, 69.) Plaintiff alleges that she also informed Williams of

Singleton’s actions, but that Williams failed to follow up with plaintiff or with Singleton. (Id. ¶

73.) On October 27, 2008, plaintiff met with Watts, Singleton, Proctor, and two other women.

(Id. ¶ 74.) During the meeting, plaintiff claims that Singleton and Proctor lodged a complaint

2 In particular, plaintiff alleges that in reference to a Healthy Start client, Singleton stated, “She should be ashamed of herself for living in all that filth.” (Compl. ¶ 40.) Plaintiff also alleges that Singleton stated that the client is “disgusting and nasty” and she Singleton “hop[ed] that she don’t bring that newborn baby back to that filthy house.” (Id.)

3 against plaintiff for failing to drop a client from Healthy Start. (Id.) Plaintiff then alleges that

Proctor left the meeting so that plaintiff and the other women could ask Singleton about the

allegations that she had touched the stomach of the Healthy Start client. (Id. ¶ 75.) Although

Singleton denied touching the client, plaintiff informed Watts and the others that she believed the

client and that she protested Singleton’s actions. (Id. ¶¶ 75-91.) According to plaintiff, she

informed Watts that it was “imperative” that they “safeguard the care” of Healthy Start clients.

(Id. ¶ 91.) Plaintiff alleges that although Watts stated that she would investigate the claims

against Singleton, and although plaintiff informed Williams of the events at the October 27, 2008

meeting, Watts did not inform plaintiff of the results of the investigation of Singleton. (Id. ¶¶

94-95.)

Plaintiff further claims that at a mandatory staff meeting on October 30, 2008, she was

subjected to a hostile work environment when she witnessed Watts “scream and yell” at another

nurse case manager. (Id. ¶ 96.) She maintains that after that meeting, and after she observed

Williams meet with Watts, Williams ordered plaintiff to leave the building, effectively

terminating her. (Id. ¶ 97.) Plaintiff alleges that she was never provided with a written or verbal

explanation for why she was terminated. (Id. ¶¶ 103-104.) However, she asserts that she was

terminated based on her race and color and because she reported a hostile work environment and

protested the “unfair” and “illegal” treatment of Healthy Start clients. (Id. ¶¶ 106-118.)

Plaintiff filed the instant lawsuit on October 30, 2009. She alleges claims of race and

color discrimination under

, the DCHRA, and Title VI (Counts 1, 2, 3, 4, 13,

14, 15, 16, 17, and 18); retaliation under

and the DCHRA (Counts 5, 6, 7, 8,

19, 20, 21, and 22); race-based hostile work environment under

and the

DCHRA (Counts 9, 10, 11, 12, 23, 24, 25, and 26); aiding and abetting in unlawful retaliation

4 under the DCHRA (Counts 27, 28, 29, and 30); promissory estoppels (Counts 31 and 32);

negligent supervision (Counts 33, 34, 35, and 36); and wrongful termination in violation of

District of Columbia public policy (Counts 37, 38, 39, and 40).

ANALYSIS

I. STANDARD OF REVIEW

As the Supreme Court held in Ashcroft v. Iqbal,

(2009), “[t]o survive a

motion to dismiss [under Rule 12(b)(6) of the Federal Rules of Civil Procedure], a complaint

must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’”

at 1949 (quoting Bell Atlantic Corp. v. Twombly,

(2007)). A

complaint must be dismissed under Rule 12(b)(6) if it consists only of “[t]hreadbare recitals of

the elements of a cause of action, supported by mere conclusory statements.”

“Where a

complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of

the line between possibility and plausibility of entitlement to relief.’”

(quoting Twombly,

) (internal quotation marks omitted)). The allegations in plaintiff’s complaint are

presumed true at this stage and all reasonable factual inferences must be construed in her favor.

Maljack Prod., Inc. v. Motion Picture Ass’n of Am., Inc.,

(D.C. Cir. 1995).

However, “the [C]ourt need not accept inferences drawn by plaintiff[] if such inferences are

unsupported by the facts set out in the complaint.” Kowal v. MCI Commc’ns Corp.,

(D.C. Cir. 1994); see also Twombly,

(Court is “not bound to accept

as true a legal conclusion couched as a factual allegation”). Although “[a] pro se complaint . . .

‘must be held to less stringent standards than formal pleadings drafted by lawyers,’” Atherton v.

D.C. Office of the Mayor,

(D.C. Cir. 2009) (quoting Erickson v. Pardus,

(2007)), “a pro se complainant must plead ‘factual matter’ that permits the court to

5 infer ‘more than the mere possibility of misconduct.’”

at 681-82 (quoting Iqbal,

).

II. PLAINTIFF’S FEDERAL CLAIMS

A.

CLAIMS

Plaintiff maintains that defendants discriminated against her on the basis of her race and

color (Compl. ¶¶ 119-124), and retaliated against her on the basis of complaints she filed

alleging a hostile work environment (id. ¶¶ 125-130), in violation of § 1981. She further alleges

that defendants subjected her to a hostile work environment in violation of the same statute. (Id.

¶¶ 131-135.) The Court finds that plaintiff has failed to allege claims upon which relief can be

granted under § 1981.

1. No Enforceable Contract with the District and Watts

The District and Watts contend that plaintiff’s § 1981 claims against them must be

dismissed because plaintiff was never an employee of the District and therefore has no

enforceable contract with it. (Mem. of P. & A. In Supp. of Defs.’ Mot. to Dismiss the Compl.

[“District Mem.”] at 8.) “‘[A] plaintiff cannot state a claim under § 1981 unless [she] has (or

would have) rights under the existing (or proposed) contract that [she] wishes to make and

enforce.’” See Burnett v. Sharma,

(D.D.C. 2007) (quoting Domino’s

Pizza, Inc. v. McDonald,

(2006) (“Section 1981 plaintiffs must identify

injuries flowing from a racially motivated breach of their own contractual relationship.”)). 3

3 In relevant part, § 1981 provides:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and

6 Here, plaintiff’s complaint fails to allege that she was ever employed by or had a contract with

the District. (See Compl. ¶ 9 (plaintiff “accepted a position as [nurse] for Godwin . . . to work as

a contractor on behalf of Godwin. . . for the District of Columbia Department of Health”); see id.

¶ 12 (plaintiff’s offer letter stated that she was “a contract at will employee of Godwin”).) 4 As

such, she cannot state claims against the District or Watts under § 1981.

Plaintiff’s citation to Olzman v. Lake Hills Swim Club, Inc.,

(2d Cir.

1974), is inapposite. There, the court held that a paying guest of a club member had an

enforceable contract with the club when the guest paid the entry fee (i.e., the payment of the fee

created a contract) for purposes of bringing a claim under § 1981. Id. at 1339. Alternatively, the

court suggested that the contract between the member and club, of which the member’s guest

equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens . . . .

(a). 4 In her opposition to Godwin’s motion to dismiss, plaintiff states that she can demonstrate that she “had well over 55 enforceable contracts with the District of Columbia, Godwin Corporation, Janice Williams, and Karen Watts.” (Pl.’s Opp’n to Godwin Corp. & Janice Williams’ Mot. to Dismiss Pl.’s Compl. [“Godwin Opp’n”] at 21.) She goes on to state: [Plaintiff] entered into numerous contracts with the District of Columbia, Godwin Corporation, Janice Williams, and Karen Watts to provide case management services to each DC Healthy Start client that the Plaintiff enrolled into the DC Healthy Start Program. The DC Healthy Start clients are enrolled into the DC Healthy Start program for the length of their pregnancy and until the child turns two years of age. Therefore, [plaintiff] has an enforceable contract for each and every individual that [she] enrolled into the DC Healthy Start Program.”

. Even if one ignores the obvious problem that the enrollment of a Healthy Start client with the program would not constitute an enforceable contract between plaintiff and the District, plaintiff failed to include these allegations in her complaint, and plaintiff may not amend her complaint by the briefs in opposition to a motion to dismiss. See, e.g., Calvetti v. Antcliff,

(D.D.C. 2004) (quoting cases); see also Coll. Sports Council v. GAO,

, 71 n.16 (D.D.C. 2006) (“[T]he Court does not, and cannot, consider claims first raised in the plaintiff’s opposition.”).

7 was a third-party beneficiary, 5 was also enforceable by the guest.

Here, plaintiff alleges only

that she had an employment contract with Godwin (Compl. ¶ 12), and that Godwin had a two-

year contract with the District to provide health care staffing to Healthy Start. (Id. ¶ 11.)

Plaintiff does not allege, nor can it be inferred from her complaint, that a contract between

Godwin and the District by which the District pays Godwin to staff Healthy Start was intended to

benefit plaintiff. As such, plaintiff’s allegations of discrimination, retaliation, and hostile work

environment against the District and Karen Watts must be dismissed for failure to meet the

requirements of § 1981. See Burnett,

.

2. Discrimination

Defendants Godwin and Williams argue that the Court must dismiss plaintiff’s § 1981

discrimination claims because plaintiff merely asserts that defendants terminated her

employment and took other actions against her on the basis of race and color without providing

any specific factual allegations that support an inference of discrimination on those bases.

(Mem. of P. & A. In Supp. of Defs.’ Godwin Corp. and Janice Williams’ Mot. to Dismiss

[“Godwin Mem.”] at 10; see also Compl. ¶¶ 106-118.) “[T]o state a claim for racial

discrimination under Section 1981, a plaintiff must allege that (1) the plaintiff is a member of a

racial minority; (2) the defendant intended to discriminate against the plaintiff on the basis of

race; and (3) the discrimination concerned an activity enumerated in § 1981.” Mazloum v. Dist.

of Columbia Metro. Police Dep’t,

(D.D.C. 2007) (internal citation and

quotations omitted). However, “[i]n order to pursue a cause of action under § 1981, plaintiff

cannot merely invoke his race in the course of a claim’s narrative and automatically be entitled to

5 A third-party beneficiary has rights under a contract although she may not be a party to said contract. See, e.g., Restatement (Second) of Contracts § 304, p. 448 (1981) (“A promise in a contract creates a duty in the promisor to any intended beneficiary to perform the promise, and the intended beneficiary may enforce the duty.”).

8 pursue relief. Rather, plaintiff must allege some facts that demonstrate that his race was the

reason for [a] defendant’s actions.” Bray v. RHT, Inc.,

(D.D.C. 1990); see also

Mesumbe v. Howard Univ., No. 09-1582,

, at *4-*5 (D.D.C. Apr. 19, 2010);

Fagan v. U.S. Small Bus. Admin.,

(D.D.C. 1992) (“To establish a prima

facie case under § 1981, the plaintiff must demonstrate a racially discriminatory purpose.”).

Even reading plaintiff’s complaint in the light most favorable to her and construing all

reasonable inferences in her favor, the Court can find no facts that support an inference of

discrimination. There is nothing in the complaint that “permit[s] the [C]ourt to infer more than

the mere possibility of misconduct” on the part of Godwin and Williams, meaning that plaintiff

has failed to show that she is entitled to relief. Iqbal,

. The only suggestion

that plaintiff’s race or color played any role in her interactions with Godwin and Williams are

plaintiff’s conclusory statements that she was “terminated . . . based on [her] race” and “color.”

(Compl. ¶¶ 106-107.) These two allegations “amount to nothing more than a ‘formulaic

recitation of the elements’ of a constitutional discrimination claim” and, because of their

conclusory nature, are “not entitled to the assumption of truth.” Iqbal,

-51

(quoting Twombly,

). And none of the factual allegations in plaintiff’s complaint

suggest a racially discriminatory motive for defendants’ treatment of plaintiff. See Alexander v.

Wash. Gas Light Co.,

(D.D.C. 2006) (dismissing § 1981 claim where

plaintiff “has not pled any facts or made any suggestion of racially discriminatory motive on the

part of [d]efendants”).

Although Federal Rule of Civil Procedure 8 requires only a “short and plain statement of

the claim showing that the pleader is entitled to relief” and not a specific quantity of facts, Fed.

R. Civ. P. 8, “it does not unlock the doors of discovery for a plaintiff armed with nothing more

9 than conclusions.” Iqbal,

. Because plaintiff has not pled any factual content

that would allow the Court “to draw the reasonable inference that the defendant is liable for the

misconduct alleged,”

, it must dismiss plaintiff’s § 1981 discrimination claims.

3. Retaliation

Defendants contend that plaintiff has failed to state a claim for retaliation because she has

not alleged that she engaged in protected activity triggering the protections of § 1981. (Godwin

Mem. at 13-14.) A prima facie case for retaliation requires that the plaintiff suffer an adverse

action because he or she engaged in protected activity, such as opposing discrimination. Carney

v. Am. Univ.,

(D.C. Cir. 1998). Not every complaint by an employee

entitles the employee to protection from retaliatory action under § 1981. See Broderick v.

Donaldson,

(D.C. Cir. 2006). “While no ‘magic words’ are required, the

complaint must in some way allege unlawful discrimination”—that is, discrimination on the

basis of a protected characteristic. Id.; see also Hawkins v. 115 Legal Serv. Care,

,

693 (2d Cir. 1998) (“[T]o be actionable under § 1981, the retaliation must have been in response

to the claimant’s assertion of rights that were protected by § 1981.”). Here, plaintiff alleges that

she lodged complaints with her superiors regarding alleged unspecified “rude and

condescending” comments made by Proctor and Singleton about plaintiff (Compl. ¶ 37);

comments about the economic status and living conditions of Healthy Start clients (id. ¶¶ 38-42);

a conversation plaintiff overheard among Proctor, Singleton, and other regarding their sex lives

(id. ¶ 42); alleged false allegations made by Proctor and Singleton about another Healthy Start

employee (id. ¶¶ 51-54); and the alleged inappropriate treatment (i.e., touching of stomach,

taking of blood pressure, and asking about weight) of a Healthy Start client by Singleton. (Id. ¶¶

90-91.)

10 It is axiomatic that none of plaintiff’s alleged complaints concerned discrimination based

on race or color (i.e., the characteristics protected by § 1981, see DuBerry v. District of

Columbia,

(D.D.C. 2008) (“Section 1981 prohibits discrimination on the

basis of race in making and enforcing contracts, including employment contracts.”) (emphasis

added)). Indeed, plaintiff states repeatedly that she was terminated in retaliation for “protesting

the unfair treatment rendered toward D.C. Healthy Start clients” (Compl. ¶ 110); “reporting

unsafe health care practices and for reporting unauthorized healthcare practices” (id. ¶ 111);

“reporting inappropriate touching behavior and inappropriate groping behavior bestowed upon a

D.C. Healthy Start client” (id. ¶¶ 112-113, 117-118); and for reporting unsafe practices and

illegal activity (id. ¶¶114-116.) None of these allegations include any suggestion that the

behavior plaintiff reported was discriminatory on the basis of race and/or color. In fact, plaintiff

fails to state the race of any of the Healthy Start clients she references or make any allegations

that the unfair treatment of them (or “rude” comments directed toward plaintiff) were racially

motivated. See Mesumbe,

(dismissing disparate treatment claim where

plaintiff failed to “indicate the race, ethnicity, or national origin of the students who allegedly

received preferential treatment”). As for plaintiff’s claim that she reported a hostile work

environment based on a conversation she overheard regarding other employee’s sexual

preferences, there is no suggestion that this conversation constituted a hostile work environment

because of plaintiff’s race or color. See Brown v. Dist. of Columbia,

, 163

n.6 (“[I]t is well established that

does not provide a cause of action for sex

discrimination.”) (citing Runyon v. McCrary,

(1976)). As such, even

assuming that plaintiff’s conclusory allegations that defendants took adverse action against her

11 based on her complaints are true, plaintiff has failed to state a claim of retaliation under § 1981,

and these claims must be dismissed.

4. Hostile Work Environment

Defendants also contend that plaintiff has failed to state a hostile work environment claim

under § 1981 (Godwin Mem. at 14-16), and the Court agrees. The conduct alleged by plaintiff,

including an instance of overheard “rude condescending” comments by Singleton about plaintiff,

comments about the economic status and living conditions of Healthy Start clients (whose race is

unspecified in the complaint), alleged false allegations by Proctor regarding Godwin employee

Queen, and an overheard conversation about the sexual preferences of other Godwin employees

over the course of a one-month period, fails to demonstrate discriminatory conduct “sufficiently

severe or pervasive to alter the conditions of [plaintiff’s] employment.” Meritor Sav. Bank, FSB

v. Vinson,

(1986) (internal quotations and citation omitted); see also Faragher v.

City of Boca Raton,

(1998) (“[S]imple teasing, offhand comments, and

isolated incidents (unless extremely serious) will not amount to discriminatory changes in the

terms and conditions of employment.”) (internal quotations and citation omitted). Moreover,

plaintiff fails to allege that any of the events she maintains constituted a hostile work

environment were based on her race or color. “To make out a prima facie 6 case of hostile work

environment, ‘plaintiff must show that the alleged harassment was based on her membership in a

protected class, and that her employer knew or should have known of the harassment and failed 6 Although a plaintiff need not establish a prima facie case of discrimination in the complaint, Ware v. Nicklin Assocs., Inc.,

(D.D.C. 2008), courts can explore a plaintiff's prima facie case at the dismissal stage to determine “whether the plaintiff can ever meet [her] initial burden to establish a prima facie case.” Rochon v. Ashcroft,

(D.D.C. 2004), rev'd on other grounds sub nom. Rochon v. Gonzales,

(D.C. Cir. 2006); see also Ervin v. Howard Univ.,

(D.D.C. 2008) (“A plaintiff is not required to plead a prima facie case of hostile work environment in the complaint; however, the alleged facts must support such a claim.”).

12 to take any remedial action.’” E.g., Hutchinson v. Holder,

(D.D.C.

2009) (quoting Hunter v. Clinton,

(D.D.C. 2009)). None of the

allegations plaintiff makes in support of her hostile work environment claims suggests that the

alleged harassment was based on her race or color. Indeed, the majority of the comments cited

by plaintiff were allegedly made about Healthy Start clients, whose race (or races) are

unspecified in the complaint. Plaintiff alleges that defendants “racially abused, victimized, and

traumatized [her] by subjecting [her] to racially offensive and flagrant intimidating

discriminatory conduct” (Compl. ¶ 133), but her complaint is devoid of any factual allegations to

support such a claim, and the Court need not accept such a conclusory statement as true. Iqbal,

. Although, the comments plaintiff alleges may be considered offensive or

rude, she has not shown how such remarks unreasonably interfered with her work performance

or that they were based on her race or color. As such, the Court will dismiss plaintiff’s § 1981

hostile work environment claims.

B. TITLE VI (42 U.S.C. § 2000d) CLAIMS

Plaintiff alleges that Godwin and the District violated Title VI, 42 U.S.C. § 2000d,

because these defendants receive federal funding and engaged in intentional discrimination based

on her race, color, and/or national origin. (Compl. ¶¶ 136-141.) Title VI states that “[n]o person

in the United States shall, on the ground of race, color, or national origin, be excluded from

participation in, be denied the benefits of, or be subjected to discrimination under any program or

activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. However, Title VI does not

provide a cause of action against a program receiving federal funding based on the program’s

employment practices except in a very limited number of cases—namely, where the primary goal

of the federal funding is to provide employment. As 42 U.S.C. § 2000d-3 states, “[n]othing

13 contained in this subchapter shall be construed to authorize action under this subchapter by any

department or agency 7 with respect to any employment practice of any employer, employment

agency, or labor organization except where a primary objective of the Federal financial

assistance is to provide employment.” See also Johnson v. Transp. Agency, Santa Clara

County,

, 628 n.6 (1987) (citing 42 U.S.C. § 2000d-3 and noting intent of Congress

that Title VI not “impinge” on Title VII, which prohibits discriminatory employment practices).

Plaintiff states in her complaint that the “D.C. Healthy Start Program is federally funded”

and “is designed to reduce infant mortality, to reduce premature infant births, and to promote

healthy lifestyles among pregnant and parents women residing in Wards 5, 6, 7, and 8 of the

District of Columbia.” (Compl. ¶¶ 16-17.) Because plaintiff fails to allege that the primary

purpose of the federal funding to the DCDOH or Healthy Start is to provide employment 8 or that

7 It is unresolved whether, and to what extent, Title VI provides a private right of action for compensatory and/or punitive damages, which plaintiff seeks (see Compl. ¶ 141 (claiming humiliation, loss of self-esteem, undue stress, mental anguish, emotional and psychological harm, economic losses, and loss of earning capacity)), in addition to front and back pay, declaratory judgment, and injunctive relief. See, e.g., Dorsey v. U.S. Dep’t of Labor,

(D.C. Cir. 1994) (declining to decide whether to judicially infer private right of action for compensatory damages under Title VI). Because the Court finds that 42 U.S.C. § 2000d-3 precludes any claim against defendants based on Godwin’s employment practices, it need not address this issue. 8 In her opposition to the motion to dismiss filed by defendants Godwin and Williams, plaintiff argues, without support, that the National Healthy Start Association, Inc., “states that the Healthy Start Projects have given real jobs to hundreds of unemployed women, particularly those on welfare.” (Godwin Opp’n at 14.) However, again, plaintiff may not amend her complaint by the briefs in opposition to a motion to dismiss. See, e.g., Calvetti,

; see also Coll. Sports Council,

n.16. Moreover, plaintiff apparently refers to the goal of Healthy Start “to assist . . . clients to obtain suitable and sustainable employment.” (Godwin Opp’n at 14); see also

(program provides “job training” for clients).) Plaintiff does not allege that the federal funds received by Healthy Start have the primary objective of “providing” employment, as required by Title VI. See 42 U.S.C. § 2000d-3. Rather, she claims that the funds help defray the costs of a program that assists clients with a variety of services, including finding sustainable employment—not with the program itself, but elsewhere. Because plaintiff has made no allegation that the federal funds at issue are primarily intended to employ her or other individuals, she has not stated a claim under Title VI. See, e.g., Luallen v. Guilford

14 the intended beneficiaries of those funds are employees like plaintiff, the Court agrees with the

defendants’ argument 9 that plaintiff has failed to plead an actionable claim under Title VI. See,

e.g., Thornton v. Amtrak,

(D.D.C. 1998) (dismissing Title VI claims under

Rule 12(b)(6) where plaintiff failed to show that “that ‘a primary objective’ of federal financial

assistance to [defendant] is to provide employment or that employees are ‘primary’ or ‘intended’

beneficiaries of federal funds”); Temengil v. Trust Territory of Pac. Islands,

, 653

(9th Cir. 1989) (affirming dismissal of Title VI claims where primary purpose of program at

issue was not employment, but could be obtained only by hiring and training individuals to

support program objectives); Murphy v. Middletown Enlarged City Sch. Dist.,

(S.D.N.Y. 1981) (relying on Congress’ stated legislative purpose in holding that plaintiff

lacked standing to bring claim under Title VI because none of the programs at issue were

designed with the primary objective of providing employment).

Health Care Ctr., No. 02-cv-738,

, at *11 (M.D.N.C. Dec. 18, 2003) (denying Title VI claims where defendant “receives no federal funding for the purpose of employing individuals”). 9 There is some question in the decisional authority as to whether the limitation in 42 U.S.C. § 2000d-3 applies only to actions by federal departments and agencies or to private actions under Title VI, as well. See Grimes v. Superior Home Health Care of Middle Tenn., Inc.,

(M.D. Tenn. 1996) (noting that clear language of § 2000d-3 “indicates its applicability is only to federal departments or agencies” and does not reference private causes of action that may be judicially implied). However, the Court concurs with the many courts that have interpreted § 2000d-3 as limiting private rights of action, as well. See, e.g., Thornton v. Amtrak,

(D.D.C. 1998); Grimes,

(limiting private right of action under Title VI “to those employers who receive federal funds ‘where a primary objective of the Federal financial assistance is to provide employment’” and listing cases) (quoting 42 U.S.C. § 2000d-3); see also Consol. Rail Corp. v. Darrone,

(1984) (“[42 U.S.C. § 2000d-3] limits the applicability of Title VI to ‘employment practice[s] . . . where a primary objective of the federal financial assistance is to provide employment.’”) (emphasis in original) (quoting 42 U.S.C. § 2000d-3); Assoc. Against Discrimination in Employment, Inc. v. City of Bridgeport,

, 276 (1st Cir. 1981) (holding that 42 U.S.C. § 2000d-3 limits private causes of action under Title VI); Carmi v. Metropolitan St. Louis Sewer Dist.,

, 674-75 (8th Cir. 1980) (“[I]n [private] suits charging employment discrimination under title VI, one of the purposes of the federal financial assistance must be to provide employment.”) (abrogated on other grounds).

15 Plaintiff argues in her oppositions that the only way to achieve the Healthy Start Program

goals is to “hire Registered Nurses.” (Pl.’s Opp’n to Defs.’ Mot. to Dismiss Pl.’s Compl. at 3;

see also id. at 5 (maintaining that D.C. Healthy Start is federally funded for 48 full time

employment positions); Godwin Opp’n at 13 (same).) She further argues that Healthy Start

“cannot reduce infant mortality without providing employment in order to reduce infant

mortality.” (Godwin Opp’n at 13.) But the hiring of employees to implement program

objectives is incidental to Healthy Start’s overall goals regarding maternal and infant health. As

the Ninth Circuit observed when rejecting a similar argument in the Temengil case, such

“extended logic” would empty § 2000d-3 of meaning and would protect only a few, if any,

programs that employ people in order to carry out their primary objectives from suits under Title

VI and Title VII. 881 F.2d at 653; see also Johnson,

n.6 (Congress added §

2000d-3 because of its concern that the receipt of any form of financial assistance might render

an employer subject to the commands of Title VI rather than Title VII); N. Haven Bd. of Educ. v.

Bell,

, 528-30 n.20 (1982) (§ 2000d-3 was added to indicate or clarify limitation on

the class of beneficiaries of Title VI); United Steelworks of Am. v. Weber,

, 207 n.6

(1979) (“Title VII and Title VI . . . cannot be read in pari materia.”). Accordingly, plaintiff does

not meet the statutory requirements to state a claim under Title VI. See Thornton,

.

III. PLAINTIFF’S STATE LAW CLAIMS

In addition to her federal claims, plaintiff asserts the following state law causes of action:

discrimination and retaliation in violation of the DCHRA; promissory estoppel; negligent

supervision; and wrongful termination in violation of D.C. public policy. When the federal-law

claims providing the Court with original jurisdiction have been dismissed, the Court “may

16 decline to exercise supplemental jurisdiction” over the remaining state-law claims.

(c)(3). In deciding “whether to exercise jurisdiction,” the Court “should consider and weigh

. . . the values of judicial economy, convenience, fairness, and comity.” Carnegie-Mellon Univ.

v. Cohill,

(1988). “[I]n the usual case in which all federal-law claims are

eliminated before trial, the balance of factors . . . will point toward declining to exercise

jurisdiction over the remaining state-law claims.”

at 350 n.7. In light of the dismissal of

plaintiff’s federal claims, there is no reason for the Court to retain jurisdiction over the remaining

common law and D.C. statutory claims. The Court will therefore dismiss these claims without

prejudice pursuant to

(c)(3). See Ekwem v. Fenty,

(D.D.C. 2009).

CONCLUSION

For the foregoing reasons, the Court grants defendants’ motions to dismiss plaintiff’s §

1981 and Title VI claims with prejudice. The Court dismisses plaintiff’s remaining state law

claims without prejudice for lack of jurisdiction. A separate Order accompanies this

Memorandum Opinion.

/s/ ELLEN SEGAL HUVELLE United States District Judge

DATE: June 25, 2010

17