                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


 GREGORY ISLAR,

                Plaintiff,

        v.                                                 Civil Action No. 16-1098 (RDM)

 WHOLE FOODS MARKET GROUP, INC.,

                Defendant.


                             MEMORANDUM OPINION AND ORDER

       Plaintiff Gregory Islar was terminated from his position at a supermarket operated by

Defendant Whole Foods Market Group, Inc. (“Whole Foods”). Islar now brings claims against

Whole Foods for (1) violations of the Civil Rights Act of 1866, 42 U.S.C. § 1981; (2) breach of

implied contract; and (3) negligent retention and supervision. See Dkt. 1-1 at 8–15. Whole

Foods has moved to dismiss the third count for failure to state a claim under the rule of Griffin v.

Acacia Life Insurance Co., 925 A.2d 564, 576–77 (D.C. 2007). Dkt. 4. For the reasons

explained below, Whole Foods’s motion will be granted.

                                     I.     BACKGROUND

       For purposes of Whole Foods’s motion to dismiss, the following allegations in Islar’s

complaint are taken as true. See, e.g., Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).

       Islar, who is African American, was employed by Whole Foods between April 1996 and

May 2013. Compl. ¶¶ 4, 6. Starting in 2005, he served as the Customer Service Team Leader at

the Whole Foods supermarket in the Georgetown neighborhood of Washington, D.C. Id. ¶ 6.

Islar was responsible for supervising cashiers, and reported to the Store Team Leader and

Assistant Store Team Leaders. Id.
       On January 19, 2013, Whole Foods employee Jean Michel Bartolo was transferred to the

Georgetown store in the position of Store Team Leader—that is, as Islar’s supervisor. Id. ¶¶ 8,

9. Islar alleges that Bartolo “had developed a reputation for mistreating employees and

terminating a large number of employees.” Id. ¶ 7. Just before Bartolo was set to begin, an

Assistant Store Team Leader asked Islar to “get rid of” Islar’s assistant, Kim Wilson, because

Bartolo “did not get along with her.” Id. ¶¶ 7, 10. Wilson had previously filed a complaint

against Bartolo. Id. ¶ 7. Islar refused, saying that he would not demote or terminate Wilson

“because she was a good employee.” Id. ¶ 8.

       Upon Bartolo’s arrival, he “[i]mmediately . . . began targeting [Islar] for termination.”

Id. ¶ 9. Whole Foods policy provides that employees may be terminated after receiving three

written reprimands. Id. Islar received his first such reprimand from Bartolo on January 21,

2013, just two days after Bartolo arrived. Id. A cashier had temporarily left her register to help

other employees, and had done so at the request of an Assistant Team Leader. Id. Islar was not

at work that day. Id. Nonetheless, Bartolo issued Islar a written reprimand “because the cashier

[had] left the register.” Id. Islar received his second reprimand on February 4, 2013, the day

after Superbowl Sunday. Id. ¶ 10. Islar had not worked that Sunday, but Bartolo reprimanded

him anyway “because the check[-]out lines [had been] too long.” Id. According to Wilson, there

had been “no lines for customers” that Sunday. Id.

       After receiving the second reprimand, Islar complained to the Regional Manager and

Human Resources Manager that he “was being mistreated by” Bartolo. Id. ¶ 11. The HR

Manager set up a meeting in the hopes of mediating the dispute. Id. During the meeting, Bartolo

said that Islar “was not ready to be a team leader” and “should step down from his position.” Id.




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Islar responded that he had held that job for seven years and would not step down. Id. The

dispute was not resolved. Id.

       On May 2, 2013, Islar received his third reprimand because “there were lines at cash

registers.” Id. ¶ 12. Islar was immediately terminated. Id. Islar alleges that he at no point

“engage[d] in any conduct which warranted discipline and/or termination.” Id. ¶ 18.

       According to Islar, Bartolo has terminated approximately twenty African American

employees at the Georgetown store since January 2013. Id. ¶ 13. Islar says these employees

were written up for “insignificant issues,” such as alleged failure to greet or smile at customers

or because a customer complained about having to wait in line. Id. Minority employees were

terminated as soon as they received their third written reprimand. Id. But Bartolo “did not

terminate . . . non-African American employees for the same alleged infractions.” Id.

       On May 2, 2016, Islar filed the instant lawsuit against Whole Foods in D.C. Superior

Court. Dkt. 1 at 1. His complaint includes three counts. Count I alleges that Bartolo violated

the Civil Rights Act of 1866, 42 U.S.C. § 1981, by applying the Whole Foods discipline policy

“in an arbitrary and discriminatory manner,” by demanding that Islar step down, and by

retaliating against Islar after Islar complained about Bartolo’s conduct. Compl. ¶¶ 15–21. Count

II alleges that Bartolo violated the Whole Foods employee handbook, which Islar says

constitutes a breach of an implied contract. Id. ¶¶ 22–25. And Count III alleges that Whole

Foods negligently retained and supervised Bartolo, in that Whole Foods knew about Bartolo’s

“mistreatment of employees,” his “arbitrary and discriminatory enforcement” of the disciplinary

policy, and his “disproportionate termination of minority employees,” but failed to correct the

behavior. Id. ¶¶ 26–30. On June 13, 2016, Whole Foods removed the case to this Court,




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invoking the Court’s diversity and federal question jurisdiction. Dkt. 1 at 3 (citing 28 U.S.C.

§§ 1331, 1332).

       Whole Foods’s motion to dismiss Count III of Islar’s complaint—i.e., the count for

negligent retention and supervision—is now before the Court. Dkt. 4.

                               II.     STANDARD OF REVIEW

       A party moving to dismiss a complaint under Rule 12(b)(6) bears the burden of showing

that the complaint “fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P.

12(b)(6); see also Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). “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, 556 U.S. 662, 678 (2009) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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.” Id. The Court need not accept as true any legal

conclusions disguised as factual allegations, any “‘naked assertion[s]’ devoid of ‘further factual

enhancement,’” or any “formulaic recitation[s] of the elements of a cause of action.” Id.

(quoting Twombly, 550 U.S. at 555, 557). The plaintiff, however, is entitled to “the benefit of all

inferences that can be derived from the facts alleged.” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d

1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)).

                                        III.    ANALYSIS

       Under District of Columbia law, “negligent supervision and retention” is a tort predicated

on the employer’s “direct negligence,” rather than on a theory of vicarious liability. Phelan v.




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City of Mount Rainier, 805 A.2d 930, 937 (D.C. 2002). 1 As with the more general tort of

negligence, negligent supervision occurs when the employer “breaches a duty of care which

proximately results in injury” to the plaintiff. Id. For the more specific tort of negligent

supervision, however, the plaintiff must further show that the employer “knew or should have

known [that] its employee behaved in a dangerous or otherwise incompetent manner,” and that

the employer nonetheless “failed to adequately supervise the employee.” Id. at 937–38.

       The D.C. Court of Appeals added another important caveat in Griffin v. Acacia Life

Insurance Co., 925 A.2d 564 (D.C. 2007), holding that a “claim of negligent supervision may be

predicated only on common law causes of action” or on “duties otherwise imposed by the

common law.” Id. at 576. In Griffin, the plaintiff alleged that her manager had “pulled down a

co-worker’s brassier strap” and then retaliated against the plaintiff after she complained. Id. at

566. She brought claims against the company for sex discrimination and retaliation under the

D.C. Human Rights law, and also alleged that the company had negligently supervised the

manager. Id. at 571. The Court of Appeals rejected the negligent supervision claim because “the

common law did not recognize an employer’s duty to prevent the sort of sexual harassment

alleged in [the plaintiff’s] complaint.” Id. at 576. Although “a negligent supervision claim could

lie in a sexual harassment case if supported by a viable claim of independent tortious conduct as

recognized at common law” (such as, for example, a claim of battery), “no evidence of

independent tortious conduct of that kind was proffered or presented” in Griffin. Id. at 577. At

the same time, however, the court declined to decide whether the offending employee’s

conduct—that is, the conduct of the “servant”—must be “independently tortious.” Id. at 576



1
  D.C. case law does not appear to distinguish between “negligent supervision” and “negligent
retention.” See, e.g., Phelan, 805 A.2d at 937.

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n.32. “For present purposes,” the court wrote, “it is sufficient to say that a negligent supervision

action requires a breach by the employer”—that is, by the master—“of a duty owed to the

plaintiff, and that this duty must be imposed by the common law and not by statute.” Id.

(emphasis added).

       Here, Whole Foods moves to dismiss Islar’s negligent supervision claim on the ground

that he has not alleged the breach of a predicate common law duty by Whole Foods as required

by Griffin. Dkt. 4 at 3–4. In response, Islar does not dispute that a negligent supervision claim

cannot be predicated upon an alleged violation of 42 U.S.C. § 1981. See Dkt. 7 at 7–8; see also

Newman v. Borders, Inc., 530 F. Supp. 2d 346, 350–51 (D.D.C. 2008). Instead, Islar argues that

he can predicate his negligent supervision claim on either (1) his claim for breach of implied

contract or (2) his unasserted claim for intentional or negligent infliction of emotional distress.

Dkt. 7 at 7. The Court evaluates each theory in turn.

A.     Breach of Contract as a Predicate for Negligent Supervision

       The Court first considers Islar’s theory based on breach of contract. For this purpose, the

Court assumes (but does not decide) that Bartolo’s alleged conduct effected a breach of contract

between Islar and Whole Foods. As framed by Griffin, the question is whether an employer has

a “common law duty” to prevent its employees from breaching the employer’s contracts with its

other employees. See 925 A.2d at 576 & n.32.

       Admittedly, Griffin does not clearly foreclose the possibility that a negligent supervision

claim might be predicated upon a breach of contract. For example, Griffin at one point states

that negligent supervision claims may be predicated “only on common law causes of action,”

925 A.2d at 576—a class that would seem to include causes of action for breach of contract, see,

e.g., Campbell v. Fort Lincoln New Town Corp., 55 A.3d 379, 382 (D.C. 2012) (characterizing



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breach of contract as a “common law cause[] of action”). And Griffin expressly declined to hold

that the servant/employee’s conduct must be “independently tortious.” Id. at 576 n.32. Instead,

Griffin phrases its holding in terms of more-general “common law duties” (as opposed to

common law tort duties), leaving open the door to arguments about whether there is a “duty” not

to breach contracts and, if so, whether that duty is imposed by the contract itself or by common

law.

         Nonetheless, in applying state law, this Court is not merely a “ventriloquist’s dummy” to

local courts. Norwood v. Marrocco, 780 F.2d 110, 113 n.4 (D.C. Cir. 1986). Rather, the Court

must apply D.C. law conscientiously, with the goal of “achiev[ing] the same outcome [it]

believe[s] would result if the District of Columbia Court of Appeals considered th[e] case.” Metz

v. BAE Sys. Tech. Sols. & Servs. Inc., 774 F.3d 18, 22 (D.C. Cir. 2014) (internal quotation mark

omitted); 19 Charles Alan Wright & Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURE

§ 4507 & n.30 (3d ed. updated Oct. 2016). And the Court concludes here that the D.C. Court of

Appeals would not allow a negligent supervision claim to be predicated on a breach of contract

alone.

         First, as Whole Foods rightly notes, to hold otherwise would effectively “assign tort

liability to breaches of contract.” Dkt. 8 at 3. On Islar’s theory, any time an employee breaches

a contract, and the employer should have known the breach was likely, the party suffering from

the breach would have a cause of action not just in contract but also in tort. D.C. law is clear,

however, that “the mere negligent breach of a contract . . . is not enough to sustain an action

sounding in tort.” Hunter ex rel. A.H. v. District of Columbia, 64 F. Supp. 3d 158, 186 n.18

(D.D.C. 2014) (alteration in original) (quoting Curry v. Bank of Am. Home Loans Servicing, 802




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F. Supp. 2d 105, 109 (D.D.C. 2011)); see also, e.g., KBI Transp. Servs. v. Med. Transp. Mgmt.,

Inc., 679 F. Supp. 2d 104, 108–09 (D.D.C. 2010).

       Second, although the Griffin court found it “unnecessary . . . [f]or present purposes” to

hold that the servant/employee’s conduct must be “independently tortious,” the opinion’s

reasoning suggests that the servant’s conduct must at least be of a kind actionable as a common

law tort. See, e.g., Griffin, 925 A.2d at 576 (citing PROSSER & KEETON ON TORTS § 80 (5th ed.

1984) and the RESTATEMENT (SECOND) OF TORTS § 314B(1) (1965) for descriptions of the

“common law . . . duties” that employers owe their employees); id. at 576 & n.31 (dismissing

plaintiff’s claim in part because her claims “did not include any allegations of conduct

independently tortious” and because “[s]exual harassment has never been a common law tort”);

id. at 577 (explaining that a negligent supervision claim for sexual harassment could lie “if

supported by a viable claim of independent tortious conduct as recognized at common law”).

And the Court of Appeals further noted that it had previously “suggested,” albeit without

deciding, that “the conduct of the servant must be independently tortious.” 925 A.2d at 576 n.32;

see Daka, Inc. v. McCrae, 839 A.2d 682, 693 (D.C. 2003) (stating that it is “most probably right”

that “negligent supervision . . . requires logically antecedent proof of a tort committed by the

supervised employee”). This is the conclusion the Court believes the D.C. Court of Appeals

would adopt if presented with Islar’s argument in this case.

       Third, while Islar asserts that “Whole Foods had a duty under D.C. common law to

adequately supervise its employees to ensure they did not breach Whole Foods’[s] contract with

its employees,” Dkt. 7 at 7, Islar cites no authority for that novel contention. Nor does he cite

any case in which a negligent supervision claim has been allowed to proceed based solely on an

alleged breach of contract. See id. The Court has not located one, either. For all these reasons,



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the Court concludes that Islar’s alleged breach of contract contact claim is an improper basis for

his negligent supervision claim under District of Columbia law.

B.      Infliction of Emotional Distress as a Predicate for Negligent Supervision

        As a fallback, Islar argues that his negligent supervision claim “is predicated on a claim

for intentional or negligent infliction of emotional distress,” Dkt. 7 at 9—notwithstanding that

his complaint asserts neither type of claim, see Compl. ¶¶ 15–30. As an initial matter, it is not

obvious that a plaintiff can ground a negligent supervision claim on a cause of action which he

does not actually assert. The Court need not reach that issue, however, as it is clear that the

alleged facts are insufficient to state a claim for either intentional or negligent infliction of

emotional distress.

        To start, Islar has not pleaded facts sufficient to state a claim for intentional infliction of

emotional distress. Under D.C. law, intentional infliction of emotional distress requires proof of

“(1) extreme and outrageous conduct on the part of the defendant which (2) either intentionally

or recklessly (3) causes the plaintiff severe emotional distress.” Larijani v. Georgetown Univ.,

791 A.2d 41, 44 (D.C. 2002). “The conduct 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.’” Id. (quoting Homan v. Goyal, 711 A.2d 812, 818

(D.C. 1998)). This is a “very demanding standard,” “[e]specially in the employment context.”

Brown v. Children’s Nat. Med. Ctr., 773 F. Supp. 2d 125, 137 (D.D.C. 2011). “[G]enerally,

employer-employee conflicts do not rise to the level of outrageous conduct.” Duncan v.

Children’s Nat. Med. Ctr., 702 A.2d 207, 211–12 (D.C. 1997) (collecting D.C. cases). Here, the

Court agrees with Whole Foods that Islar “simply does not allege the sort of ‘extreme and

outrageous’ conduct necessary to distinguish his case from a garden-variety wrongful



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termination claim.” Dkt. 8 at 5; see also, e.g., Beyene v. Hilton Hotels Corp., 815 F. Supp. 2d

235, 249 (D.D.C. 2011) (allegations that a supervisor submitted “allegedly unjustified ‘write-

ups’ [of the plaintiff] . . . [did] not rise to the level of ‘extreme and outrageous conduct,’” and

explaining that “much more extreme” conduct has “routinely” been held to be insufficiently

outrageous).

        Nor has Islar pleaded facts that constitute negligent infliction of emotional distress.

Under D.C. law, a plaintiff may recover for negligent infliction of emotional distress under either

of two theories. Lesesne v. District of Columbia, 146 F. Supp. 3d 190, 195 (D.D.C. 2015). “The

well-established ‘zone of danger’ test allows a plaintiff to recover ‘for mental distress if the

defendant's actions caused the plaintiff to be in danger of physical injury and if, as a result, the

plaintiff feared for his own safety.’” Id. (quoting Hedgepeth v. Whitman Walker Clinic, 22 A.3d

789, 796 (D.C.2011) (en banc)). Alternatively, a plaintiff can recover if, among other things,

there is a “special relationship” between the parties that “necessarily implicates the plaintiff’s

emotional well-being.” Hedgepeth, 22 A.3d at 811–12. Neither theory is available to Islar. Islar

does not allege any risk of physical injury or that he feared for his own safety, so there can be no

“zone of danger” liability. And Islar has not alleged that he and Bartolo had anything other than

arm’s length, supervisor-employee relationship, foreclosing any “special relationship” liability.

       As such, Islar has not identified any predicate claim under Griffin that would permit him

to recover on a negligent supervision or retention theory.




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                                       CONCLUSION

       Whole Foods’s motion to dismiss Count III of Islar’s complaint, Dkt. 4, is accordingly

GRANTED. It is further ORDERED that Whole Foods shall file an answer to the remainder of

Islar’s complaint on or before December 1, 2016.

       SO ORDERED.



                                                   /s/ Randolph D. Moss
                                                   RANDOLPH D. MOSS
                                                   United States District Judge


Date: November 17, 2016




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