                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

    JAQUIA BUIE,
          Plaintiff,
          v.                                            Civil Action No. 16-1920 (CKK)
    DISTRICT OF COLUMBIA, et al.,
          Defendants.

                          MEMORANDUM OPINION AND ORDER
                                 (August 30, 2017)

        This action arises from the alleged sexual assault of Plaintiff Jaquia Buie by Defendant
Darrell L. Best, who was at the time an employee of the District of Columbia Metropolitan Police
Department (“MPD”). Compl. ¶ 3. The following sequence of events is gleaned from the
allegations of the complaint, which are accepted as true solely for purposes of the pending motion.
On December 3, 2014, Defendant Best picked up Plaintiff at a Metro stop in an unmarked police-
issued vehicle. Id. ¶ 30. Defendant Best then drove Plaintiff to a restaurant on 15th Street N.W. Id.
At the time, he was in full police uniform and armed. Id. At the restaurant, Defendant Best made
lewd comments to Plaintiff, and Plaintiff asked to go home. Id. ¶ 34. Although Plaintiff said she
would rather take the Metro, Defendant Best insisted that he would drive her home. Id. Once back
in the police vehicle, however, Defendant Best told Plaintiff that he needed to stop by MPD
headquarters on business before returning her home. Id. ¶ 35. Once at police headquarters, Plaintiff
tried to remain in the police vehicle, but was ordered by Defendant Best to exit the car. Id. ¶ 37.
Plaintiff was then taken by Defendant Best from the secure underground garage, by use of a secure
elevator, to his office at police headquarters. Id. ¶¶ 36, 38. There, he allegedly sexually abused
her—a crime for which he has pled guilty and been sentenced to 18 years in prison. Id. ¶¶ 38, 42.

        Presently before the Court is a [10] Partial Motion to Dismiss, pursuant to Federal Rule of
Civil Procedure 12(b)(6), filed by Defendant District of Columbia (“the District”) and Defendant
Muriel E. Bowser, Mayor of the District of Columbia (collectively, the “District Defendants”). 1
Pursuant 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, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)).



1
    The Court’s consideration has focused on the following documents:
      • Complaint, ECF No. 1 (“Compl.”);
      • District Defs.’ Partial Mot. to Dismiss, ECF No. 10 (“Defs.’ Mem.”);
      • Mem. of P&A in Supp. of Pl.’s Opp’n to the District of Columbia’s Mot. for Partial
         Dismissal, ECF No. 13 (“Opp’n Mem.”);
      • Reply in Supp. of District Defs.’ Partial Mot. to Dismiss, ECF No. 14 (“Reply Mem.”).
                                                 1
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, 550 U.S. at 570.

        The District Defendants contend that the complaint asserts no theory of liability as to
Mayor Bowser, and that as a result, she should be dismissed from this case. Plaintiff does not
respond to this argument, meaning it is conceded. See LCvR 7(b). In any event, because Mayor
Bowser is sued only in her official capacity, and because the claims against her are merely
duplicative of those against the District, her dismissal from this lawsuit is appropriate. Robinson
v. District of Columbia, 403 F. Supp. 2d 39, 49 (D.D.C. 2005) (Kollar-Kotelly, J.) (“Based upon
the understanding that it is duplicative to name both a government entity and the entity’s
employees in their official capacity, courts have routinely dismissed corresponding claims against
individuals named in their official capacity as ‘redundant and an inefficient use of judicial
resources.’” (citations omitted)).

        For its part, the District contends that in “counts four through eight of Plaintiff’s complaint
– Negligence, Negligent Entrustment, Negligent Retention, Negligent Infliction of Emotional
Distress and Intentional Infliction of Emotional Distress – Plaintiff asserts claims which only
survive as to defendant the District if defendant Best was acting within the scope of his
employment at the time of the alleged acts.” Defs.’ Mem. at 6. For the moment, the Court assumes
that this proposition is true—that is, that these claims can proceed only under a theory of
respondeat superior liability. 2 Granted this assumption, the District contends that it is not liable
under a theory of respondeat superior liability because Defendant Best was not acting within the
scope of his employment at the time he allegedly sexually abused Plaintiff. Id. at 3.

       In defining scope of employment, the District of Columbia follows section 228 of the
RESTATEMENT (SECOND) OF AGENCY (1958) (the “Restatement”). See Council on Am. Islamic
Relations v. Ballenger, 444 F.3d 659, 663 (D.C. Cir. 2006). With respect to the factual
circumstances of this case, the most relevant authority is Boykin v. District of Columbia, 484 A.2d
560, 562 (D.C. 1984). There, the District of Columbia Court of Appeals found that a school teacher
who sexually assaulted his student in the school cafeteria was not acting within the scope of his
employment as a matter of law. Boykin, 484 A.2d at 564. Although the teacher’s responsibilities
included physical contact with his students—he was a teacher for the deaf and blind—the Court
of Appeals held that respondeat superior liability did not attach because “the employee’s conduct
was [not] the outgrowth of any action undertaken in the employer’s behalf.” Id. In other cases,
however, where the employee’s illicit conduct somehow aided the employer, the employer has
been found to be vicariously liable. See Lyon v. Carey, 533 F.2d 649, 652 (D.C. Cir. 1976) (whether
a delivery man’s rape of a customer was within the scope of employment was a jury question
because the rape grew out of a dispute over payment); Brown v. Argenbright Sec., Inc., 782 A.2d
752 (D.C. 2001) (“While it is probable that the vast majority of sexual assaults arise from purely
personal motives, it is nevertheless possible that an employee’s conduct may amount to a sexual


2
  In fact, as Plaintiff argues, several of the counts appear to assert claims of direct liability against
the District. See Opp’n Mem. at 6. The extent to which each claim turns on direct or vicarious
liability, however, is an issue that the Court need not, and does not, decide in the context of the
pending motion.
                                                   2
assault and still be actuated, at least in part, by a desire to serve the employer’s interest.” (internal
quotation marks and alterations omitted)).

       Plaintiff does not challenge the District’s contention that Defendant Best was acting outside
the scope of his employment. Rather, Plaintiff contends that vicarious liability nevertheless
attaches on the District pursuant to sections 219(2)(b) and 219(2)(d) of the Restatement. See Opp’n
Mem. at 4–5. Because Plaintiff has plausibly alleged vicarious liability under section 219(2)(d),
the Court reserves judgment with respect to the other section.

        Section 219(2)(d) provides that “[a] master is not subject to liability for the torts of his
servants acting outside the scope of their employment, unless . . . the servant purported to act or to
speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in
accomplishing the tort by the existence of the agency relation.” (Emphasis added.) The District of
Columbia has not expressly adopted this section of the Restatement, see Doe v. Sipper, 821 F.
Supp. 2d 384, 391 (D.D.C. 2011, but it has been relied upon by the United States Court of Appeals
for the District of Columbia Circuit (“D.C. Circuit”).

       Particularly, in Gary v. Long, the D.C. Circuit offered the following analysis of section
219(2)(d):

        In a sense, a supervisor is always “aided in accomplishing the tort by the existence
        of the agency” because his responsibilities provide proximity to, and regular contact
        with, the victim. . . . The commentary to the Restatement suggests that this
        exception embraces a narrower concept that holds the employer liable only if the
        tort was “accomplished by an instrumentality, or through conduct associated with
        the agency status.” Thus a telegraph company may be held liable for a tort
        committed by a telegraph operator who sends a false telegraph message, as may the
        undisclosed principal of a store whose manager cheats a customer. In such cases,
        “[l]iability is based upon the fact that the agent’s position facilitates the
        consummation of the tort, in that from the point of view of the third person the
        transaction seems regular on its face and the agent appears to be acting in the
        ordinary course of the business confided to him.”

59 F.3d 1391, 1397 (D.C. Cir. 1995) (alteration and citations omitted). Although Plaintiff’s position
regarding section 219(2)(d) is thoroughly articulated, the District offers no response in its reply,
and does not contest the applicability of the section. Furthermore, even reaching the issue, the
Court finds that Plaintiff has plausibly alleged that the District is vicariously liable for the alleged
sexual assault at issue pursuant to section 219(2)(d) under the narrow reading of that section
espoused by the D.C. Circuit.

         The complaint alleges that Defendant Best was wearing his full police uniform and armed
at the time of the assault, plausibly suggesting that he was purporting to act on behalf of the MPD.
Furthermore, the assault was in numerous ways allegedly accomplished by use of instrumentalities
associated with Defendant Best’s official position. Plaintiff was driven in an official police vehicle,
while Plaintiff was in his full police uniform. She was taken to MPD headquarters. There,
Defendant Best initially took her to the garage, which allegedly required police credentials for

                                                   3
access. Then, by use of an elevator that likewise allegedly required an MPD pass, Defendant Best
took Plaintiff to his office at MPD headquarters, where the assault was allegedly committed. As a
result, various instrumentalities associated with Defendant Best’s official position with the MPD
allegedly facilitated the commission of the tortious conduct at issue in this case. Indeed, it is
plausible that, from a third-party perspective, Defendant Best’s conduct would have appeared to
be in the ordinary course of his police business—taking a private citizen from his official vehicle,
while in his official uniform, to his office in MPD headquarters. Accordingly, Plaintiff has
plausibly alleged a theory of respondeat superior liability for the District stemming from Defendant
Best’s alleged sexual abuse of the Plaintiff at MPD headquarters. See Sipper, 821 F. Supp. 2d at
393 (denying motion to dismiss on the basis of section 219(2)(d) because there was a fact issue as
to whether an executive of a company used the instrumentalities of his position to rape an
employee); see also Doe v. Forrest, 853 A.2d 48, 61 (Vt. 2004) (“What makes the circumstances
of this case virtually unique from a policy perspective is the extraordinary power that a law
enforcement officer has over a citizen. A number of courts have talked about this power in finding
vicarious liability in cases involving sexual assaults by police officers.”).

                                         *       *       *

       For the foregoing reasons, the [10] Partial Motion to Dismiss is GRANTED-IN-PART
and DENIED-IN-PART. Mayor Bowser is dismissed from this lawsuit. In all other respects, the
case may proceed.

       SO ORDERED.
                                                         /s/
                                                     COLLEEN KOLLAR-KOTELLY
                                                     United States District Judge




                                                 4
