UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JOSHUA WHITE, Plaintiff v. Civil Action No. 18-2021 (CKK) WASHINGTON INTERN STUDENT HOUSING, et al., Defendants

MEMORANDUM OPINION (July 29, 2019)

Plaintiff Joshua White is a former employee of Washington Intern Student Housing

(“WISH”). As an employee of WISH, Plaintiff managed a dormitory referred to as Woodley

Park. Washington Media Institute (“WMI”), an organization that provides internships with media

organizations in the District of Columbia, houses some of their participants in Woodley Park.

Plaintiff argues that he was wrongfully terminated by WISH in retaliation for complaints that he

made about alleged harassment by Amos Gelb, the Director of WMI.

On April 25, 2019, the Court issued an Order dismissing several of Plaintiff’s claims

against Defendants WISH and WMI. See April 25, 2019 Order, ECF No. 22. Following the

Court’s Order, the only claim remaining against Defendant WMI is Plaintiff’s Count V negligent

supervision and retention claim. The Court denied without prejudice Defendant WMI’s prior

motion to dismiss this claim as the parties had failed to brief a central issue. See April 25, 2019

Memorandum Opinion, ECF No. 23, 21-23. Defendant WMI now, again, moves to dismiss

Plaintiff’s Count V claim for negligent supervision and retention.

1 Upon consideration of the pleadings1, the relevant legal authorities, and the record for

purposes of this motion, the Court GRANTS Defendant WMI’s Motion. The Court finds that

Plaintiff has failed to allege facts sufficient to state a plausible claim that WMI knew or should

have known that Mr. Gelb engaged in dangerous or otherwise incompetent behavior prior to the

alleged acts giving rise to Plaintiff’s claims. As such, Plaintiff’s Count V claim for negligent

supervision and retention is DISMISSED WITHOUT PREJUDICE.

I. BACKGROUND

On April 25, 2019, the Court issued a Memorandum Opinion resolving Defendant WMI

and Defendant WISH’s initial motions to dismiss. For purposes of this Memorandum Opinion,

the Court shall assume familiarity with, and incorporate herein, its April 25, 2019 Memorandum

Opinion which describes in detail the factual background of this case. As such, the Court only

briefly addresses those facts which are necessary to resolve Defendant WMI’s instant motion.

Plaintiff began working for WISH in late 2012. In August 2013, he moved into Woodley

Park, one of WISH’s dormitories. As part of his employment responsibilities, Plaintiff managed

the dormitory. Compl., ECF No. 2, ¶ 9. WMI participants were some of the residents at Woodley

Park. Id. at ¶ 10. And, WMI occasionally held classes at Woodley Park. Id. at ¶ 14.

1 The Court’s consideration has focused on the following documents: • Mem. of Law in Support of Def. WMI’s Mot. to Dismiss Count 5 of the Compl. (“Def. WMI’s Mot.”), ECF No. 24-1; • Pl.’s Mem. in Opp’n to Def. WMI’s Mot. to Dismiss Count 5 of the Compl. (“Pl.’s Opp’n to Def. WMI”), ECF No. 26-2; and • Def. WMI’s Reply in Support of Mot. to Dismiss Count 5 of the Compl. (“Def. WMI’s Reply”), ECF No. 27. In an exercise of its discretion, the Court finds that holding oral argument in this action would not be of assistance in rendering a decision. See LCvR 7(f).

2 Plaintiff alleges that Mr. Gelb, the Director of WMI, began sexually harassing him soon

after Plaintiff moved into Woodley Park. Id. Plaintiff claims that Mr. Gelb would knock on his

door late at night, make sexually suggestive remarks, and touch him in an aggressive, sexual

manner. Id. at ¶ 15. Plaintiff further alleges that Mr. Gelb would leave sexual notes on his door

and at other locations throughout Woodley Park. Id. Plaintiff also claims that in October 2016,

Mr. Gelb secretly recorded a video of Plaintiff and his partner having sex and sent it to several

Woodley Park residents. Id. at ¶ 16. Finally, Plaintiff claims that he was fired by WISH after Mr.

Gelb threatened to terminate WMI’s contract with WISH unless Plaintiff was fired. Id. at ¶ 21.

In Count V of his Complaint, Plaintiff brings a claim for negligent supervision and

retention against Defendant WMI. Plaintiff states that Defendant “WMI knew or should have

known that [Mr.] Gelb was unfit to work directly with Mr. White and posed a particular risk of

sexually harassing Mr. White.” Id. at ¶ 57. Plaintiff further alleges that Defendant WMI’s

negligent supervision and retention of Mr. Gelb “was a substantial factor in causing harm to Mr.

White.” Id. at ¶ 59. In the instant motion, Defendant WMI moves to dismiss Plaintiff’s Count V

claim for negligent supervision and retention.

II. LEGAL STANDARD

Defendant WMI moves to dismiss Count V in Plaintiff’s Complaint under Rule 12(b)(6).

According to Rule 12(b)(6), a party may move to dismiss a complaint on the grounds that it

“fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “[A]

complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual

enhancement.’” Ashcroft v. Iqbal,

(2009) (quoting Bell Atl. Corp. v. Twombly,

(2007)). Rather, a complaint must contain sufficient factual allegations that, if

accepted as true, “state a claim to relief that is plausible on its face.” Twombly,

.

3 “A claim has facial plausibility 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,

.

III. DISCUSSION

The only issue currently before the Court is Defendant WMI’s Motion to Dismiss

Plaintiff’s Count V claim for negligent supervision and retention. In order to state a claim for

negligent supervision and retention, the plaintiff must allege facts sufficient to support the

inference that the employer knew or should have known that the employee behaved in a

dangerous or otherwise incompetent manner prior to the conduct giving rise to the claim and

that, despite this actual or constructive knowledge, the employer failed to adequately supervise

the employee. See Giles v. Shell Oil Corp.,

(D.C. 1985).

In his Complaint, Plaintiff makes the conclusory allegation that Defendant “WMI knew

or should have known that [Mr.] Gelb was unfit to work directly with Mr. White and posed a

particular risk of sexually harassing Mr. White.” Compl., ECF No. 2, ¶ 57. This conclusory

allegation alone is insufficient to create a plausible claim for relief as Plaintiff has alleged no

facts explaining how Defendant WMI “knew or should have known” that Mr. Gelb posed a risk

to Plaintiff. Instead, Plaintiff contends that, “[b]y virtue of [Mr.] Gelb’s position as the Director

of WMI, WMI was aware of and ratified Gelb’s conduct and found it an acceptable part of his

employment.” Id. at ¶ 25. As such, Plaintiff’s claim for negligent supervision and retention rests

on the argument that Mr. Gelb’s knowledge of his own actions must be imputed to Defendant

WMI.

In both the briefing for the prior Motion to Dismiss and the briefing for the instant

Motion to Dismiss, the parties cite no cases involving a claim for negligent supervision and

4 retention in which the plaintiff argued that the employee’s knowledge should be imputed to the

employer based on the employee’s position within the organization. Conducting its own

research, the Court could also find no instructive cases.

Instead, as the Court suggested in its prior Memorandum Opinion, the parties look to the

principles of agency law for their arguments. See April 25, 2019 Memorandum Opinion, ECF

No. 23, 22-23. As the Court previously explained, pursuant to the principles of agency law, “[a]s

a general rule, knowledge acquired by a corporation’s officers or agents is properly attributable

to the corporation itself.” BCCI Holdings (Luxembourg), S.A v. Clifford,

(D.D.C. 1997). As the Director, Mr. Gelb is an officer or agent of Defendant WMI. Accordingly,

Mr. Gelb’s knowledge of his alleged conduct could theoretically be attributed to Defendant

WMI. However, there are exceptions to the general rule that knowledge of a corporation’s

officers will be attributed to the corporation. As is relevant here, “there will be no imputation of

knowledge if the officer or agent is adversely interested to the corporation.”

(internal

quotation marks omitted); see also FDIC v. Shrader & York,

(5th Cir. 1993)

(citing Restatement (2) of Agency, stating that a “principal is not affected by the knowledge of

an agent in a transaction in which the agent secretly is acting adversely to the principal and

entirely for his own or another’s purpose”). In its prior Memorandum Opinion, the Court refused

to decide whether or not the adverse interest exception applied in this case because the Court

lacked relevant arguments on the issue. Having now considered the parties relevant arguments,

the Court concludes that the adverse interest exception applies and that Mr. Gelb’s knowledge of

his own alleged conduct cannot be imputed to Defendant WMI.

Plaintiff contends that Mr. Gelb and Defendant WMI did not have adverse interest.

Instead, Plaintiff argues that their interests were coextensive because “[i]t was in both their

5 interests to 1) reject as untrue Mr. White’s allegations of harassment against Mr. Gelb, and 2)

persuade WISH to accede to Mr. Gelb’s demand that Mr. White’s employment be terminated, so

that WMI could continue to reap the pecuniary benefit associated with its students attending

classes in WISH’s facility.” Pl.’s Opp’n to Def. WMI, ECF No. 26-2, 2.

But, Plaintiff’s argument fails to address Defendant WMI’s interests at the relevant time-

point—the time that Mr. Gelb’s acts are alleged to have been committed. Instead of focusing on

Defendant WMI’s interests at the time that Mr. Gelb’s acts are alleged to have been committed,

Plaintiff’s argument focuses on the aftermath of Mr. Gelb’s alleged acts and a shared interest in

denying or discounting those acts. Plaintiff ignores that, to state a claim for negligent supervision

and retention, Mr. Gelb’s knowledge of his alleged acts would need to be imputed to Defendant

WMI prior to the time that Mr. Gelb’s conduct occurred. See Rawlings v. DC,

(D.D.C. 2011) (requiring plaintiff to show that the employee engaged in dangerous

behavior “before” the incident subject to litigation). Accordingly, even if the Court assumes that

Plaintiff is correct that Mr. Gelb and Defendant WMI had coextensive interests in the aftermath

of Mr. Gelb’s alleged conduct, such coextensive interests cannot be used to impute knowledge to

Defendant WMI of Mr. Gelb’s alleged conduct.

At the time that Mr. Gelb allegedly committed his acts, Mr. Gelb and Defendant WMI

had adverse interests. Mr. Gelb’s alleged harassment of Plaintiff was adverse to Defendant

WMI’s interests as it risked harming Defendant WMI’s working relationship with WISH which

was a pecuniary benefit for Defendant WMI. Additionally, Mr. Gelb’s interests would not have

been served by Defendant WMI having knowledge of his alleged harassment as he would have

risked professional reprimand or even termination.

Because Mr. Gelb and Defendant WMI had adverse interests at the time of the alleged

6 acts, the Court cannot impute Mr. Gelb’s knowledge of his own alleged conduct to Defendant

WMI. And Plaintiff provides no other argument as to how Defendant WMI would have known

or have had reason to know that Mr. Gelb posed a danger to Plaintiff. Accordingly, Plaintiff has

failed to state a claim for which relief may be granted for his Count V claim for negligent

supervision and retention.

Having concluded that Plaintiff failed to state a claim for which relief may be granted, the

Court must next decide whether to dismiss Plaintiff’s claim with or without prejudice. Plaintiff

asks the Court to dismiss without prejudice his claim for negligent supervision and retention

because discovery may reveal that Defendant WMI had reason to know of Mr. Gelb’s propensity

to engage in dangerous or otherwise incompetent behavior. Defendant WMI asks the Court to

dismiss with prejudice Plaintiff’s claim as “he should not be granted a further extension for his

fishing expedition.” Def. WMI’s Reply, ECF No. 27, 3.

Considering the parties’ arguments, the Court DISMISSES WITHOUT PREJUDICE

Plaintiff’s Count V claim for negligent supervision and retention. The United States Court of

Appeals for the District of Columbia Circuit has explained that “[d]ismissal with prejudice is the

exception, not the rule, in federal practice because it operates as a rejection of the plaintiff's

claims on the merits and [ultimately] precludes further litigation of them.” Rudder v. Williams,

(D.C. Cir. 2012) (internal quotation marks omitted). Given the relatively

high standard for dismissal with prejudice, the Court concludes that dismissal without prejudice

is more appropriate as the Court cannot say that it is impossible that Plaintiff will be able to

plead sufficient facts to maintain a claim of negligent supervision and retention against

Defendant WMI.

7 IV. CONCLUSION

For the foregoing reasons, the Court GRANTS Defendant WMI’s [24-1] Motion to

Dismiss. The Court DISMISSES WITHOUT PREJUDICE Plaintiff’s Count V claim for

negligent supervision and retention as Plaintiff failed to allege facts sufficient to support the

inference that Defendant WMI knew or should have known that Mr. Gelb behaved in a

dangerous or otherwise incompetent manner prior to the conduct giving rise to the claim. As

there are no remaining claims against Defendant WMI, Defendant WMI is DISMISSED from

this lawsuit.

An appropriate Order accompanies this Memorandum Opinion.

/s/ COLLEEN KOLLAR-KOTELLY United States District Judge

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