                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
______________________________
                               )
MICA SAINT-JEAN, et al.,       )
                               )
     Plaintiffs,               )
                               )
     v.                        )    Civil Action No. 08-1769 (RWR)
                               )
DISTRICT OF COLUMBIA,          )
                               )
     Defendant.                )
______________________________)

                   MEMORANDUM OPINION AND ORDER

     Plaintiffs Mica Saint-Jean, Guerline Bourciquot, and Marie

Dorlus have brought claims against defendant District of Columbia

(“D.C.”) under the Fair Labor Standards Act (“FLSA”), 29 U.S.C.

§ 207, et seq., the D.C. Whistleblower Protection Act (“WPA”),

D.C. Code § 1-615.51, et seq., and local statutory and common law

arising from an alleged scheme which required them to pay

kickbacks to their supervisor in order to receive overtime

assignments.   D.C. has moved to dismiss those claims.1   Because

the plaintiffs’ FLSA and WPA claims are sufficiently pled and not

foreclosed by the unclean hands doctrine, the motion to dismiss

will be denied as to those claims.   The motion will be granted as

to the plaintiffs’ quantum meruit claim because it was based upon




     1
       D.C. unsuccessfully challenged claims plaintiffs have
brought under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e, et seq. See Saint-Jean v. D.C., Civil Action No.
08-1769 (RWR), 2012 WL 547814 (D.D.C. Feb. 21, 2012).
                                 -2-

an illegal arrangement, and as to their unexhausted defamation

claim which, in any event, fails to state a claim for relief.

                             BACKGROUND

     The plaintiffs allege the following facts, many of which are

set forth in Saint-Jean v. D.C. (“Saint-Jean II”), Civil Action

No. 08-1769 (RWR), 2012 WL 547814, at *1-*2 (D.D.C. Feb. 21,

2012).   The plaintiffs, all Haitian immigrants, worked at a

school bus terminal of the D.C. Public Schools Division of

Transportation (“DOT”).   They were denied the opportunity to work

overtime hours unless they paid illegal kickbacks to their former

supervisor, Michelle Smith, the Terminal Manager.    (2d Am. Compl.

¶¶ 2, 13-15, 24, 192.)    Saint-Jean and Dorlus each paid Smith

between $75 and $150 per pay period to obtain overtime

assignments.2   (2d Am. Compl. ¶¶ 30, 34-35.)   When they stopped

paying Smith in September of 2007, Smith retaliated by refusing

to assign them overtime hours, selectively enforcing DOT policies

against them, “issuing repeated and unnecessary warnings[,]” and

suspending Bourciquot without pay.     (2d Am. Compl. ¶¶ 5, 45-47,

57, 62-63, 193.)

     A group of Haitian DOT employees discussed Smith’s scheme

with DOT’s Transportation Administrator, David Gilmore, in




     2
       Saint-Jean began paying kickbacks to Smith in June of
2004. (2d Am. Compl. ¶ 30.) Dorlus began paying Smith kickbacks
in December of 2005. (Id. ¶ 34.)
                                -3-

October of 2006.   As a result, Smith was suspended for six weeks.

Smith resumed her scheme after she returned.   (2d Am. Compl.

¶¶ 4, 38-42).   In November or December of 2007, Saint-Jean and

Dorlus reported Smith’s illegal kickback scheme and retaliation

to the Mayor’s office, the Office of the Inspector General

(“OIG”), the Office of the Attorney General (“OAG”), and the FBI.

(Id. ¶ 6.)   Bourciquot disclosed the scheme to DOT Assistant

Manager Janice Waters in March of 2008.3   (Id. ¶ 56.)   Between

July 10 and 16, 2008, “Hastings-Carey” and “Washington” issued

four written warnings and a written reprimand to each of Saint-

Jean and Bourciquot for allegedly refusing a directive and

padding the clock.   (Id. ¶¶ 64-65, 184-85.)

     The plaintiffs discussed some of Smith’s discrimination

against Haitians with Gilmore on July 17, 2008.   (2d Am. Compl.

¶ 77.)   The following day, Saint-Jean told Gilmore that Smith

accepted bribes in exchange for paying employees for hours not

worked, and that Smith let her boyfriend use DOT buses for

personal purposes.   (2d Am. Compl. ¶¶ 79, 82.)   DOT Deputy

Terminal Manager Michael Roberts suspended Bourciquot and Dorlus

without pay on July 21, 2008, for five days, for an alleged

failure to “call to report they would be late [to work] on July



     3
       It was “one week after Bourciquot informed Waters of
Smith’s unlawful kickback scheme [that] Smith suspended
Bourciquot from March 24 [through] 26, 2008, without pay, citing
unspecified ‘time padding.’” (2d Am. Compl. ¶ 57.)
                                   -4-

18th” (id. ¶¶ 86-87), and directed a security guard to escort

them off DOT property later that afternoon.     (Id. ¶ 183.)     On

July 29, 2008, DOT notified Bourciquot and Dorlus of their

“proposed termination[s]” for insubordination to an immediate

supervisor.    (Id. ¶¶ 97, 99.)    Their effective date of

termination was August 14, 2008.     (2d Am. Compl. ¶ 100.)    DOT

placed Saint-Jean on a ten-day administrative leave for

insubordination on September 10, 2008, with notice that she would

be terminated effective September 24, 2008.     (2d Am. Compl.

¶¶ 114-115.)

     The defendant has moved in part to dismiss the plaintiffs’

claims under the FLSA and the WPA and for defamation and quantum

meruit relief for failure to state claims upon which relief can

be granted.    The plaintiffs oppose the motion.

                             DISCUSSION

     The Federal Rules of Civil Procedure provide for “extremely

liberal” pleading standards.      Vila v. Inter-Am. Inv., Corp., 570

F.3d 274, 291 (D.C. Cir. 2009).     Under Rule 8(a)(2), a complaint

need only contain “‘a short and plain statement of the claim’”

giving “‘the defendant fair notice of what the . . . claim is and

the grounds upon which it rests’” and “‘showing that the pleader

is entitled to relief.’”   Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47

(1957).   “[D]etailed factual allegations” are likewise
                                 -5-

unnecessary under Rule 12(b)(6), id., which authorizes dismissing

a complaint for failure to state a claim upon which relief can be

granted.   Fed. R. Civ. P. 12(b)(6).   To survive a Rule 12(b)(6)

motion, “‘a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on

its face.’”    Ivey v. Fenty, 65, 67-68 (quoting Ashcroft v. Iqbal,

129 S. Ct. 1937, 1949 (2009)) (citation omitted).   Facially

plausible claims permit “the reasonable inference that the

defendant is liable for the misconduct alleged.”    Iqbal, 129 S.

Ct. at 1949.   “Th[is] plausibility standard . . . asks for more

than a sheer possibility that a defendant has acted unlawfully.”

Id.

      In considering a Rule 12(b)(6) motion to dismiss, a court

“assume[s] all the allegations in the complaint are true (even if

doubtful in fact)” and “must give the plaintiff[s] the benefit of

all reasonable inferences derived from the facts alleged.”

Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc., 525 F.3d

8, 17 (D.C. Cir. 2008) (internal quotation marks and citation

omitted); accord Simba v. Fenty, 754 F. Supp. 2d 19, 22 (D.D.C.

2010).   However, “‘the court need not accept [unsupported]

inferences[,] . . . [nor must it] accept legal conclusions cast

in the form of factual allegations.’”   Vila, 570 F.3d at 291

(quoting Kowal v. MCI Communic’ns Corp., 16 F.3d 1271, 1276 (D.C.

Cir. 1994)).   Any “labels and conclusions,” “naked assertion[s],”
                                  -6-

and “unadorned, the-defendant-unlawfully-harmed-me

accusation[s],” will not suffice to avoid dismissal.    Iqbal, 129

S. Ct. at 1949; Mekuria v. Bank of Am., Civil Action No. 10-1325

(JEB), 2011 WL 4430868, at *3 (D.D.C. Sept. 23, 2011).

I.   FLSA

     “‘The central aim of the [FLSA] was to achieve, in those

industries within its scope, certain minimum labor standards.’”

McMaster v. State of Minn., 30 F.3d 976, 980 (8th Cir. 1994)

(quoting Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288,

292 (1960)).   It was enacted to support the “‘minimum standard of

living necessary for health, efficiency, and general well-being

of workers[,]’” and “to prevent unfair competition resulting from

the use of underpaid labor.”     Id. (quoting 29 U.S.C. § 202(a))

(citation omitted).

     A.     Overtime provision

     “The FLSA provides affected employees with a cause of action

to recover for violation of its overtime provision,” Figueroa v.

D.C. Metro. Police Dep’t, 633 F.3d 1129, 1132 (D.C. Cir. 2011)

(citing 29 U.S.C. § 216(b)), “which ordinarily requires

employers4 to pay employees time-and-one-half for hours worked

beyond forty per week[.]”   Saint-Jean v. D.C. Pub. Sch. Div. of



     4
       The parties do not dispute that DOT is an employer within
the meaning of the FLSA. The FLSA defines an “employer” as “any
person acting directly or indirectly in the interest of an
employer in relation to an employee.” 29 U.S.C. § 203(d).
                                  -7-

Transp. (“Saint-Jean I”), Civil Action No. 08-1769 (RWR), 2011 WL

4552982, at *2 (D.D.C. Mar. 31, 2011) (quoting Smith v. Gov’t

Emp. Ins. Co., 590 F.3d 886, 888 (D.C. Cir. 2010)).     D.C. argues

that the plaintiffs’ claim for overtime payments under FLSA fails

because it is time-barred, because Smith acted outside the scope

of her employment while orchestrating the illegal scheme, because

DOT paid plaintiffs “free and clear” for any and all overtime

hours, and because the plaintiffs were willing and voluntary

participants in Smith’s cash-for-overtime arrangement.    (Def.’s

Mot. [Dkt. #23] to Dismiss Pls.’ Compl. (“Def’s Mot. [Dkt. #23]”)

at 10-14; Def.’s Mot. [Dkt. #37-1] to Dismiss Pls.’ Am. Compl. or

for Summ. J. (“Def.’s Mot. [Dkt. #37-1]”) at 14-19.)

        The plaintiffs counter that they were not paid “free and

clear” for their overtime hours since they were compelled to pay

Smith kickbacks, that DOT’s FLSA violation was willful, and that

their participation in the scheme does not bar relief.    (Pls.’

Mem. in Opp’n to Def.’s Mot. to Dismiss Pls.’ Compl. (“Pls.’

Opp’n”) at 16-21.)    They allege that while they worked for more

than 40 hours per week, Smith, DOT’s agent, reduced their wages

by requiring them to pay kickbacks.     (2d Am. Compl. ¶¶ 2, 29, 31,

156.)    For example, Saint-Jean and Dorlus paid Smith as much as

$150 per pay period in order to obtain overtime work.    (Id. ¶¶ 2,

30, 32, 34-35.)    The plaintiffs claim that DOT was aware of
                                 -8-

Smith’s kickback scheme but repeatedly failed to take corrective

action against her.   (Id. ¶¶ 156-57.)

          1.   Time bar

     For actions against employers, the FLSA provides statute of

limitations periods of two years for non-willful violations and

three years for willful violations.    Desmond v. PNGI Charles Town

Gaming, L.L.C., 630 F.3d 351, 357 (4th Cir. 2011) (citing 29

U.S.C. § 255(a)).    Plaintiffs bear the burden to make a “factual

showing” of willfulness, Clarke v. JPMorgan Chase Bank, N.A., No.

08 Civ. 2400, 2010 WL 1379778, at *10 (S.D.N.Y. Mar. 26, 2010),

which the Supreme Court has described as an employer’s “either

[knowing] or . . . reckless disregard for the matter of whether

its conduct was [statutorily] prohibited.”     McLaughlin v.

Richland Shoe Co., 486 U.S. 128, 133 (1988)).     “Reckless

disregard . . . involves actual knowledge of a legal requirement,

and deliberate disregard of the risk that one is in violation.”

Clarke, 2010 WL 1379778, at *10 (internal quotation marks and

citation omitted).    Neither mere negligence nor a merely

unreasonable determination of the employer’s obligations under

the FLSA suffice to show willfulness.    Id.

     “[J]udicial experience and common sense[]” nudge the

allegations of DOT’s reckless disregard for FLSA’s requirements

“across the line from conceivable to plausible.”    Iqbal, 129 S.

Ct. at 1950, 1951 (internal quotation marks and citations
                                 -9-

omitted).    D.C. does not dispute that it knew of its legal

obligation to pay overtime wages undiminished by extorted

kickbacks.   See Teoba v. Trugreen Landcare, LLC, 769 F. Supp. 2d

175, 184 (W.D.N.Y. 2011) (stating that “FLSA's anti-kickback

regulation holds that any money an employee ‘kicks back directly

or indirectly to the employer or another person for the

employer’s benefit’ must be excluded from calculating the

employee’s actual wages.”) (citing 29 C.F.R. § 531.35)

(additional quotation marks and citation omitted).    The

plaintiffs have pled that Gilmore became aware of Smith’s

kickback scheme in 2006.    (2d Am. Compl. ¶ 4.)   After DOT

suspended Smith for six weeks because of the scheme, it

nevertheless reinstated her and restored her responsibility for

assigning overtime hours.   (Id. ¶¶ 40, 42.)    She resumed the

scheme, and employees “increased the amount of their kickbacks to

Smith [upon her return] and . . . [were] rewarded with more

overtime.”   (Id. ¶¶ 4, 42.)   These facts adequately allege that

DOT deliberately disregarded the risk of recurring FLSA

violations by re-appointing Smith to the same position with the

same responsibilities, and failing to monitor the kickback

scheme’s resurgence.   (See Pls.’ Opp’n at 20.)    Accordingly, the

three-year statute of limitations applies.     See 29 U.S.C.
                                -10-

§ 255(a).    The plaintiffs may challenge any alleged FLSA

violations occurring after October 16, 2005 –- the date three

years before the plaintiffs filed this action.5

            2.   Agency relationship

     D.C. argues that DOT did not violate the FLSA since Smith

acted outside the scope of her employment by orchestrating the

kickback scheme.    (Def.’s Mot. [Dkt. #23] at 13-14; Def.’s Mot.

[37-1] at 17.)    The plaintiffs respond that Smith’s malfeasance

is attributable to D.C.    (Pls.’ Opp’n at 6-8.)

     “Agency is the fiduciary relationship that arises when . . .

a ‘principal’ manifests assent to . . . an ‘agent[’] that the

agent shall act on the principal’s behalf and subject to the

principal’s control, and the agent manifests assent or otherwise

consents so to act.”    Restatement (Third) of Agency § 1.01

(2006).6    As a principal, “[a]n employer is subject to liability

for torts committed by [agent] employees while acting within the

scope of their employment.”    Id. § 2.04.   D.C. law governs the

question of vicarious liability.    Sharma v. D.C., 791 F. Supp. 2d



     5
       Any FLSA claim arising from payments Saint-Jean made to
Smith between June of 2004 and October 16, 2005, and those Dorlus
made to Smith before October 16, 2005, are therefore time-barred.
(2d Am. Compl. ¶ 30.)
     6
       “In 2006 the Restatement (Second) of Agency was superseded
by the Restatement (Third) of Agency, which uses ‘employer’ and
‘employee’ rather than ‘master’ and ‘servant[.]’” Schmidt v.
Burlington N. and Santa Fe Ry. Co., 605 F.3d 686, 690 n.3 (9th
Cir. 2010) (citation omitted).
                               -11-

207, 212 (D.D.C. 2011) (“It is well-settled that on issues of

District of Columbia law this Court defers to the decisions of

the local D.C. courts.”).   The D.C. Circuit recently stated that

the scope-of-employment test, which “D.C. [caselaw] appl[ies]

. . . very expansively,” “often is akin to asking whether the

defendant merely was on duty or on the job when committing the”

challenged conduct.   Harbury v. Hayden, 522 F.3d 413, 422 n.4

(D.C. Cir. 2008).   “[S]everal D.C. cases hold[] that seriously

criminal and violent conduct can still fall within the scope of a

defendant’s employment . . . -- including sexual harassment, a

shooting, armed assault, and rape.”   Id. at 422.7   Accordingly,

in identifying conduct within the scope of a defendant’s

employment, a court may consider whether the challenged conduct

“w[as] incidental to the defendant[‘s] legitimate employment

duties” or “foreseeable as a direct outgrowth of [her]




     7
       Under D.C. caselaw, a “university dean [was deemed to
have] acted within [the] scope of employment in sexually
harassing [a] faculty member during [faculty] meetings[,]” a
“laundromat employee acted within [the] scope of employment in
shooting [a] customer during [a] dispute over removing clothes
from [a] washing machine[,]” and a “mattress deliveryman acted
within [the] scope of employment in raping [a] customer after [a]
dispute arose during delivery.” Harbury, 522 F.3d at 422
(collecting cases); see also Kalil v. Johanns, 407 F. Supp. 2d
94, 98 n.3 (D.D.C. 2005) (citing Brown v. Argenbright Sec., Inc.,
782 A.2d 752, 758 (D.C. 2001) (holding that a reasonable jury
could determine a security guard’s perpetration of an alleged
assault occurred within the scope of employment because it began
with a physical search of a suspected shoplifter)).
                                -12-

responsibility” and “undertaken on [the employer’s] behalf.”8

Id. at 422.

     Here, the plaintiffs sufficiently have pled facts reflecting

that Smith’s conduct was incidental to her legitimate

responsibility to assign overtime hours and foreseeable as a

direct outgrowth of that responsibility -- certainly after

Gilmore became aware of the scheme in October of 2006.     Id.   (See

2d Am. Compl. ¶¶ 17, 22, 24, 38.)      The complaint articulates that

Smith’s “scheme was designed to extract money[]” rather than to

benefit DOT.   (Id. ¶ 37.)   The process Smith followed for

assigning overtime hours, corrupted as it was by kickback

requirements, can fairly be said to have been undertaken



     8
       Courts in this circuit also have applied the common law
agency test articulated in the Second Restatement of Agency.
See, e.g., Kalil v. Johanns, 407 F. Supp. 2d 94, 97 (D.D.C.
2005).

     [C]onduct of a servant is within the scope of
     employment if, but only if: [a] it is of the kind he is
     employed to perform; [b] it occurs substantially within
     the authorized time and space limits; [c] it is
     actuated, at least in part, by a purpose to serve the
     master; and [d] if force is intentionally used by the
     servant against another, the use of force is not
     unexpectable by the master.

Id. (quoting Restatement (Second) of Agency § 228(1).) Smith was
authorized to assign overtime hours and did so “within the
authorized time and space limits” of the job. See id. (2d Am.
Compl. ¶¶ 22, 24.) Smith’s “supervisory decision” to assign
overtime hours in a discriminatory manner “should be considered
‘actuated, at least in part, by a purpose to serve the master’”
in light of D.C.’s “expansive view of the scope of employment.”
Id. at 98 (citation omitted).
                                     -13-

nonetheless on DOT’s behalf and to serve DOT.9      Thus, the

complaint amply pleads that Smith’s scheme was executed within

the scope of her employment and that her actions are attributable

to DOT.

             3.     Free and clear

     D.C. argues that DOT paid the plaintiffs in full for their

overtime work and should not be held responsible for the

plaintiffs’ “voluntary” decision to spend their paychecks on

kickbacks.    (Def.’s Mot. [Dkt. #23] at 10-11; Def.’s Mot. [Dkt.

#37-1] at 14, 16.)      “Under the FLSA any money that the employee

‘“kicks back” directly or indirectly to the employer or another

person for the employer’s benefit’ must be excluded from

calculation of the employee’s actual wages.”      Yu G. Ke v. Saigon

Grill, Inc., 595 F. Supp. 2d 240, 257 (S.D.N.Y. 2008) (citing 29

C.F.R. § 531.35).      Wages must be “‘paid finally and

unconditionally or “free and clear”’” on payday, Cumbie v. Woody

Woo, Inc., 596 F.3d 577, 581 (9th Cir. 2010) (quoting 29 C.F.R.

§ 531.35), since the FLSA “prevents improper deductions [which]

reduc[e] the wages of a worker below the minimum wage[.]”

Arriaga v. Fla. Pacific Farms, L.L.C., 305 F.3d 1228, 1241 (11th

Cir. 2002).       “[Allowing] employers to frustrate the policy of



     9
       See also Pls.’ Opp’n at 7 (describing the third element of
the common law agency test as requiring that the conduct in
question be “performed, at least in part, to serve the employer”)
(quoting Restatement (Second) of Agency § 228 (1958)).
                                 -14-

. . . the FLSA through the use of kickbacks” is disfavored.

Donovan v. Crisostomo, 689 F.2d 869, 876 (9th Cir. 1982).

     Plaintiffs claim facts here like those in Yu G. Ke, where

“cash payments   . . . were demanded of plaintiffs for the benefit

of the defendants, that is, to ensure that a sufficient amount of

[overtime] work was accomplished by [DOT] staff.”   Yu G. Ke, 595

F. Supp. 2d at 257.   (See Pls.’ Opp’n at 18.)   The plaintiffs

have adequately alleged that the kickback payments here rise to

the level of a FLSA violation in light of Smith’s coercive

behavior.   (2d Am. Compl. ¶¶ 24, 45-47.)

            4.   Unclean hands

     D.C. argues that equity bars relief under the FLSA since the

plaintiffs paid illegal kickbacks and were complicit in Smith’s

scheme.   (Def.’s Mot. [Dkt. #23] at 12-14; Def’s Mot. [Dkt. #37-

1] at 16-17.)    The plaintiffs counter that their actions did “not

run afoul of the FLSA.”   (Pls.’ Opp’n at 20.)

     “[C]ourts have discretion to deny equitable relief to a

party who has not acted fairly and without fraud or deceit as to

the controversy at issue.”   Armenian Genocide Museum and

Memorial, Inc. v. Cafesjian Family Found., Inc., 691 F. Supp. 2d

132, 159 (D.D.C. 2010) (quotation marks and citation omitted).

Thus, the equitable doctrine of unclean hands can apply “where

there is misconduct by the plaintiff in the same transaction that

is the subject of h[er] claim.’”    Harrington v. Trotman, 983 A.2d
                                -15-

342, 348 (D.C. 2009) (quoting Int’l Tours & Travel, Inc. v.

Khalil, 491 A.2d 1149, 1155 (D.C. 1985)).

     D.C. bears the burden of showing that “unclean hands bars

equitable relief[.]”   Pedinol Pharmacal, Inc. v. Rising Pharm.,

Inc., 570 F. Supp. 2d 498, 505 (E.D.N.Y. 2008).   “That burden is

satisfied by a showing of ‘truly unconscionable and brazen

behavior.’”   Id. (citation omitted); see also Cochran v. Burdick,

89 F.2d 831, 834 (D.C. Cir. 1937) (citing fraudulent or

unconscionable behavior as conduct constituting unclean hands).

In determining whether a plaintiff’s own misbehavior operates to

bar recovery, “equity does not demand that its suitors shall have

led blameless lives[.]”    Ellipso, Inc. v. Mann, Civil Action No.

05-1186 (RCL), 2006 WL 1126814, at *2 (D.D.C. Apr. 27, 2006).

“[T]he doctrine may be relaxed if defendant has been guilty of

misconduct that is more unconscionable than that committed by

plaintiff[,]” Duggal v. Krishna, 554 F. Supp. 1043, 1047 (D.D.C.

1983) (internal quotation marks and citation omitted); see 11A

Wright, Miller, Kane and Marcus, Federal Practice and Procedure

§ 2946 (2d ed. 2011), or if the party invoking the doctrine was

“the principal actor in the perpetration of the fraud[.]”

Cochran, 89 F.2d at 834.    The plaintiffs were subordinate in

power to Smith who plaintiffs allege was the principal actor in

perpetrating the illegal scheme.   Plaintiffs’ capitulation to a

superior’s extortionate demand, if it is unconscionable, is far
                                -16-

less so than the superior’s making the demand.    The plaintiffs’

efforts reflect less “fraud or deceit” than they reflect an

effort to obtain overtime assignments which they were rightfully

entitled to seek.10   Baker v. David A. Dorfman, P.L.L.C., No. 99

CIV. 9385 DLC, 2000 WL 297160, at *3 (S.D.N.Y. Mar. 22, 2000).

Equity therefore does not bar the plaintiffs’ FLSA claim under

FLSA’s overtime provision, and it will survive dismissal.

     B.    Retaliation

     D.C. argues that the plaintiffs have failed to plead a prima

facie case for retaliation under the FLSA, in part because “only

Bourciquot and Dorlus are alleged to have suffered adverse

action.”   (Def.’s Mot. [Dkt. #37-1] at 19.)   “The

anti-retaliation provision of the FLSA [makes it] unlawful to

‘discharge or in any other manner discriminate against any

employee because such employee has filed any complaint or

instituted or caused to be instituted any proceeding under or

related to this chapter.’”   Arencibia v. 2401 Restaurant Corp.,

Civil Action No. 09-165 (CKK), 2011 WL 6396538, at *16 (D.D.C.

Dec. 21, 2011) (quoting 29 U.S.C. § 215(a)(3)).   “[I]n order to

establish a prima facie case of retaliation under the FLSA, a

plaintiff must demonstrate (1) that the employer was aware that

plaintiff was engaged in statutorily protected activity, (2) that


     10
       D.C. offers no support for the proposition, for example,
that the plaintiffs “knew they were not supposed to work
overtime.” (Def.’s Mot. [Dkt. #23] at 13 (emphasis added).)
                                 -17-

the employer took adverse action against the plaintiff, and (3)

that there was a causal relationship between the two.”   Cooke v.

Rosenker, 601 F. Supp. 2d 64, 72 (D.D.C. 2009) (citations

omitted).

     According to the plaintiffs, DOT was aware that they were

disclosing the scheme both internally and to local and federal

investigative authorities.   (2d Am. Compl. ¶¶ 6, 8, 56, 77.)   The

plaintiffs allege that, soon thereafter, DOT took adverse

employment action against them by “suspending their employment,

reprimanding them, harassing them and ultimately terminating

their employment” (id. ¶ 162).    Drawing all reasonable inferences

in the plaintiffs’ favor, the close temporal proximity of the

protected behavior and the alleged retaliation can suggest that

“there was a causal relationship between the two.”   Cooke, 601 F.

Supp. 2d at 72, 79.   No more is necessary to survive Rule

12(b)(6) dismissal.

     The D.C. Circuit has not yet determined whether mere

informal complaints can trigger protection from retaliation under

the FLSA.   Miller v. Health Servs. for Children Found., 630 F.

Supp. 2d 44, 49 (D.D.C. 2009) (citing Cooke, 601 F. Supp. 2d at

74-75 (collecting cases)).   “[E]ven assuming that retaliation for

making an informal complaint is cognizable under § 215(a)(3), an

‘employee must [still] step outside his or her role of

representing the company and . . . threaten to file [] an action
                               -18-

adverse to the employer, actively assist other employees in

asserting FLSA rights, or otherwise engage in activities that

reasonably could be perceived as directed towards the assertion

of rights protected by the FLSA.’”    Id. at 50 (quoting Hicks v.

Ass’n of Am. Med. Coll., 503 F. Supp. 2d 48, 52-53 (D.D.C.

2007)).   The plaintiffs initiated meetings to disclose Smith’s

fraud to the Mayor’s Office, the OIG, the OAG, and the FBI; they

also took the initiative to file complaints with the EEOC.       (2d

Am. Compl. ¶¶ 6, 48-55.)   Under these circumstances, they have

amply pled that they “step[ped] outside [their] role[s]” as DOT

representatives and “engaged in activities” reasonably perceived

as directed toward the protection of their FLSA rights.      Miller,

630 F. Supp. 2d at 49.   The FLSA retaliation claim will proceed.

II.   DCWPA

      The plaintiffs allegedly made multiple disclosures regarding

Smith’s scheme to local and federal authorities.    (2d Am. Compl.

¶ 169.)   In late 2007, they complained orally to the OAG, the

OIG, the Mayor’s Office and the FBI.    (Id. ¶¶ 6, 48-49.)      They

complained internally to Gilmore and Waters in March and July of

2008, respectively.   (Id. ¶¶ 4, 56, 77, 79, 82.)    Finally, on

September 17, 2008, all three plaintiffs filed written complaints

with the EEOC.   (Id. ¶¶ 105, 118.)    They allege that these

complaints constituted protected disclosures under the WPA and

prompted DOT to take prohibited personnel actions against them,
                              -19-

including suspending, reprimanding, and terminating them, and

rescinding their offers of reinstatement.    (Id. ¶¶ 170-171.)

D.C. argues that the plaintiffs have failed to plead a prima

facie case under the WPA or, alternatively, that the claim is

barred by the doctrine of “unclean hands.”   (Def.’s Mot. [Dkt.

#23] at 4-10; Def.’s Mot. [Dkt. #37-1] at 7-13.)

     The WPA’s central “premise . . . is that District employees

can function as the ‘eyes and ears’ of District taxpayers.”

Williams v. D.C., 9 A.3d 484, 490 (D.C. 2010) (citation omitted).

Accordingly, the Act “encourage[s] [D.C.] employees to ‘report

waste, fraud, abuse of authority, violations of law, or threats

to public health or safety’ by protecting such employees from the

‘retaliation or reprisal’ they could otherwise face for bringing

these government excesses to light.”   Hawkins v. Boone, 786 F.

Supp. 2d 328, 332 (D.D.C. 2011) (quoting D.C. Code § 1–615.51).

To plead a prima facie case under the WPA, “a plaintiff must

allege that 1) she made a protected disclosure,11 2) her employer


     11
       One 2010 amendment to the WPA revised the definition of
“‘protected disclosure’ so that the term explicitly includes ‘any
disclosure of information . . . without restriction to . . .
prior disclosure made to any person by an employee or
applicant[.]” Williams v. D.C., 9 A.3d at 490 n.5. Though the
amendment may not apply retroactively since it “attaches new
legal consequences to events completed before its enactment,”
Bowyer v. D.C., 779 F. Supp. 2d 159, 164 (D.D.C. 2011), it
nonetheless “reflects the D.C. Council’s focus on protecting
employees . . . who risk their job security to disclose
information that might have already been disclosed by another
employee or applicant[.]” Id. (emphasis added); compare also id.
at 489 (“a government employee may be protected by the WPA even
                               -20-

or supervisor retaliated by taking, or threatening to take,

prohibited personnel actions against her, and 3) her protected

disclosure was a contributing factor to the prohibited employment

action.”   Byrd v. D.C., 807 F. Supp. 2d 37, 73 (D.D.C. 2011).

     An employee making a protected disclosure must reveal agency

errors so serious that reasonable people would not debate whether

the agency erred.   Mentzer v. Lanier, 677 F. Supp. 2d 242, 250

(D.D.C. 2010).   When the plaintiffs filed this action, the WPA

defined a protected disclosure as

     any disclosure of information . . . by an employee to a
     supervisor or a public body that the employee
     reasonably believes evidences: (A) Gross mismanagement;
     (B) Gross misuse or waste of public resources or funds;
     (C) Abuse of authority in connection with the
     administration of a public program or the execution of
     a public contract; (D) A violation of federal, state,
     or local law ... which is not of a merely technical or
     minimal nature; or (E) A substantial and specific
     danger to the public health and safety.

D.C. Code § 1–615.52(a)(6) (2001) (emphasis added).   “The   . . .

inquiry . . . [is] not whether the conduct was in fact ultimately

found to be illegal or a gross abuse[.]”   Williams v. Johnson,

701 F. Supp. 2d 1, 14-15 (D.D.C. 2010).    Instead, an

individual’s reasonable belief turns on whether “‘a disinterested

observer with knowledge of the essential facts known to and


if [s]he disclosed information previously known by at least some
members of the public.”) with id. (holding that previous
disclosures bar WPA protection for subsequent disclosures which
involved “not only public knowledge but also vocalized public
concern about the very information that [the whistleblower]
conveyed.”)
                                 -21-

readily ascertainable by the employee [could] reasonably conclude

that the actions of the government evidence [illegality, gross

abuse, etc.].’”    Id. (quoting Zirkle v. D.C., 830 A.2d 1250,

1259-60 (D.C. 2003)) (alteration in original).

     Prohibited personnel actions within the meaning of the WPA

include

     recommended, threatened, or actual termination,
     demotion, suspension, or reprimand; involuntary
     transfer, reassignment, or detail; referral for
     psychiatric or psychological counseling; failure to
     promote or hire or take other favorable personnel
     action; or retaliating in any other manner against an
     employee because that employee makes a protected
     disclosure or refuses to comply with an illegal
     order[.]

D.C. Code § 1-615.52(a)(5)(A).

     A.   Prima facie case

          1.      Protected disclosure

     The defendant argues that the plaintiffs made no disclosure

at all because other Haitian bus drivers had revealed the scheme

to Gilmore as early as October of 2006.    (Def.’s Mot. [Dkt. #23]

at 8; 2d Am. Compl. ¶¶ 4, 38.)    The plaintiffs counter that they

can state a claim “without pleading that they were the first to

disclose Smith’s conduct.”12    (Pls.’ Opp’n at 9.)   Neither the


     12
       Plaintiffs inaccurately cite Tabb v. D.C., 605 F. Supp.
2d (D.D.C. 2009), as holding that “a plaintiff’s disclosure was
protected even though[] it was already widely known in the
agency.” (Pls.’ Surreply at 5.) In Tabb, the defendant disputed
that the plaintiff’s disclosures warranted protection since she
stated that her disclosure “was a well known fact.” Id. at 98.
Noting that the statement “was not under oath, . . . appears
                                -22-

text of the WPA nor the cases interpreting it require that “no

one . . . [be] aware of the [alleged] abuse[]” before disclosure.

Williams v. D.C., 9 A.3d at 489.    Instead, under D.C. caselaw, “a

plaintiff’s statements do not qualify as ‘protected disclosures’

under the WPA if the statements conveyed only information that

was already known to the person to whom the information is

reported[.]”   Williams v. Johnson, 701 F. Supp. 2d at 15

(citation omitted) (emphasis added).   The D.C. Court of Appeals

also has excluded from protection disclosures that merely

“relay[] . . . public complaints” where “members of the public

. . . themselves perceived an alleged abuse, and already

vociferously and repeatedly dr[ew] attention to it[.]”    Williams

v. D.C., 9 A.3d at 490.

     Other than certain complaints made to Gilmore, the

plaintiffs’ oral and written statements regarding Smith appear to

meet the statutory definition of protected disclosures.     See D.C.

Code § 1–615.52(a)(6).    The plaintiffs’ statements to Gilmore

about Smith’s discriminatory treatment of Haitians and her

kickback scheme do not warrant WPA protection since he already

was aware of those fraudulent activities.   (2d Am. Compl. ¶¶ 4,

7, 38.)   See also Williams v. Johnson, 701 F. Supp. 2d at 15.


likely to have been hyperbole[,]” and that the plaintiff later
stated that it was “hard to say who all knew[]” the subject of
her disclosure, the court concluded that whether the plaintiff’s
statements were protected disclosures constituted a “genuine
issue[] of material fact.” Id.
                               -23-

However, just as no pleading suggests that the Mayor’s office or

Waters knew of Smith’s scheme before Saint-Jean and Dorlus

disclosed it to them in November of 2007 and March of 2008,

respectively (2d Am. Compl. ¶ 48; see also id. ¶ 56), Gilmore

allegedly did not previously know that Smith accepted bribes in

exchange for paychecks and allowed her boyfriend to use DOT buses

for personal purposes.   (Id. ¶ 82.)   The plaintiffs likewise have

not alleged that D.C. retaliated against them after they relayed

already “public complaints about a perceived abuse” –-

circumstances which “may well merit reproach, but . . . do[] not

appear to be the particular evil at which the DC-WPA was aimed.”

Williams v. D.C., 9 A.3d 484 at 490 n.5.

     “‘[A] disinterested observer with knowledge of the essential

facts known to and readily ascertainable by the [plaintiffs]

[could] reasonably conclude that” Smith’s and DOT’s actions

evidenced illegality -– that is, the agency’s violation of

federal employment discrimination laws.    Williams v. Johnson, 701

F. Supp. 2d at 14; see also D.C. Code § 1-615.52(a)(6)(D).

Because the plaintiffs pled a reasonable belief that Smith

grossly mismanaged and abused her authority, and violated

employment discrimination laws, they have asserted disclosures

that were protected disclosures within the meaning of the WPA.

See D.C. Code § 1-615.52(a)(6)(A), (C).
                                -24-

            2.   Causality

     The plaintiffs allege that D.C.’s prohibited personnel

actions against them included “suspension, reprimands,

recommended, threatened and actual terminations” (2d Am. Compl.

¶ 170.)    D.C. argues that the plaintiffs’ protected disclosures

were not a “contributing factor” in causing the plaintiffs’

suspensions without pay and terminations.    (Def.’s Mot. [Dkt.

#23] at 9-11.)   The plaintiffs allege close temporal proximity

between their protected disclosures and the defendant’s

prohibited personnel actions.   (2d Am. Compl. ¶¶ 85-86, 170-71.)

     The plaintiffs must “demonstrate as part of [their] prima

facie case that the protected disclosure was a contributing

factor to the allegedly retaliatory actions . . . i.e., that

Defendants would not have taken the allegedly retaliatory actions

but for her protected disclosures.”    Williams v. Johnson, 701 F.

Supp. 2d   at 17 (internal quotation marks and citation omitted).

Under D.C. caselaw, close temporal proximity may suffice to

establish causality.   Johnson v. D.C., 935 A.2d 1113, 1120 (D.C.

2007) (stating that “four months realistically cannot constitute

temporal proximity in the ordinary sense of that phrase.”)    Here,

the plaintiffs have alleged that they suffered adverse employment

actions within days and weeks after reporting Smith’s scheme.

(2d Am. Compl. ¶¶ 86-87, 50, 183.)     They have therefore pled a

prima facie case under the WPA.
                                -25-

     B.    Unclean hands

     D.C. argues that the affirmative defense of unclean hands

bars the plaintiffs’ WPA claim given their complicity in Smith’s

scheme.   (Def.’s Mot. [Dkt. #23] at 8-10.)   D.C. also argues that

granting relief would undermine the policies underlying the WPA,

which was “enacted to motivate employees to do their duties

justly and efficiently.”   (Id. at 9 (quotation marks and citation

omitted) (emphasis removed).)   As is stated above, D.C. has not

met its burden to show that the plaintiffs’ conduct was truly

“unconscionable” or “brazen.”   See Pedinol, 570 F. Supp. 2d at

505; Cochran, 89 F.2d at 834.   Allowing this claim to proceed

would actually promote the policies underlying the WPA by testing

the merits of the plaintiffs’ whistleblowing efforts.

III. QUANTUM MERUIT

     D.C. argues that the plaintiffs’ quantum meruit claim13 is

barred because 1) they were compensated for their overtime work

and 2) the services they performed were based on an illegal

arrangement.   (Def.’s Mot. [Dkt. #23] at 14-15.)   The plaintiffs

counter that Smith’s misconduct is attributable to DOT, which was


     13
       D.C. appears to conflate claims for quantum meruit, which
concerns implied contract claims in fact, and unjust enrichment,
which applies to implied contract claims in law. Plesha v.
Ferguson, 725 F. Supp. 2d 106, 111 (D.D.C. 2010). “[A] party
asserting a claim for unjust enrichment must show that: 1) the
plaintiff conferred a benefit on the defendant; 2) the defendant
retains the benefit; and 3) under the circumstances, the
defendant’s retention of the benefit is unjust.” Id. (internal
quotation marks and citation omitted).
                               -26-

unjustly enriched because the agency did not compensate Saint-

Jean and Dorlus “free and clear.”     (Pls.’ Opp’n at 21-22.)

District of Columbia common law recognizes quantum meruit,

meaning “as much as he deserves,” as an implied-in-fact contract.

Flemming, Zulack and Williamson, LLP v. Dunbar, 549 F. Supp. 2d

98, 106 (D.D.C. 2008); Saint-Jean I, 2011 WL 4552982, at *3.     To

plead the claim, a plaintiff here must allege that D.C.’s conduct

implied the existence of a contractual relationship by

establishing 1) valuable services the plaintiff rendered, 2) for

the person from whom recovery is sought; 3) which services were

accepted and enjoyed by that person, and 4) under circumstances

which reasonably notified the person that the plaintiff, in

performing such services, expected to be paid.     Id. (citations

omitted).   The plaintiffs allege that they rendered valuable

services to DOT, which DOT enjoyed.    (2d Am. Compl. ¶¶ 13-15, 19-

21, 29, 31, 177.)   Drawing all reasonable inferences in the

plaintiffs’ favor, they reasonably expected DOT would pay them

for their overtime hours after DOT represented that Saint-Jean

and Dorlus would be compensated.    (Id. ¶ 177.)   See Saint-Jean I,

2011 WL 4552982, at *3.

     However, the second amended complaint repeatedly describes

the scheme in which the plaintiffs participated as “illegal.”

(See, e.g., 2d Am. Compl. ¶¶ 2, 4-8, 37-38, 42-43, 55, 63, 157.)

The D.C. Court of Appeals “has been insistent that quantum meruit
                               -27-

recovery for performance in return for a promise unenforceable on

public policy grounds is forbidden.”14   Sturdza v. United Arab

Emirates, 11 A.3d 251, 257 n.26 (D.C. 2011) (internal quotation

marks and citation omitted) (discussing contracts made in

violation of a licensing statute or regulation); see also 8

Williston on Contracts § 19:75 (4th ed. 2011) (“one who has given

illegal consideration or performed in whole or in part illegal

acts . . . cannot recover reasonable compensation”).     Its

“‘decisions rejecting any deviation from this rule span more than

a quarter-century.’”   Sturdza, 644 F. Supp. 2d at 53 (quoting

Cevern v. Ferbish, 666 A.2d 17, 19-20 (D.C. 1995)).    Smith’s

promise to assign to and compensate the plaintiffs for overtime

hours in exchange for kickbacks runs contrary to public policy

because a public agency’s decisions as to work distribution and

compensation should not be governed by private gain.15


     14
       Other courts have reached the same conclusion. See,
e.g., Am. Heritage Bancorp v. United States, 61 Fed. Cl. 376, 388
(Fed. Cl. 2004) (“[n]o court will lend its assistance in any way
to carry out the terms of an illegal contract, nor will the court
enforce any alleged rights directly springing from such
contract”); Markon v. Unicorp Am. Corp., 645 F. Supp. 62, 64-65
(D.D.C. 1986) (“courts have refused to permit recovery on a
quantum meruit basis” where a contingency fee contract was
“contrary to federal policy and therefore unenforceable”);
Roberts v. Fin. Tech., No. 3:06-0055, 2007 WL 3125289, at *11
(M.D. Tenn. Oct. 23, 2007) (“No principle of law is better
settled than that a party to an illegal contract cannot come into
a court of law and ask to have his illegal objects carried
out[.]”) (quotation marks and citation omitted).
     15
       It is not necessary to reach the issue whether Smith’s
malfeasance is attributable to DOT since, even if DOT is liable,
                                   -28-

Accordingly, the plaintiffs’ quantum meruit claim will be

dismissed.

IV.    DEFAMATION BY CONDUCT

       The defendant argues that the plaintiffs’ defamation claim

is foreclosed by the D.C. Comprehensive Merit Personnel Act

(“CMPA”), D.C. Code § 1-601.01, et seq. (2001) under which the

plaintiffs have failed to exhaust their administrative remedies,

and by their consent to written warnings under their union’s

collective bargaining agreement (“CBA”).        D.C. also argues that

the claim should be dismissed for the plaintiffs’ failure timely

to provide D.C. proper notice of the claim under D.C. Code § 12-

309.16      Finally, D.C. argues that the facts alleged do not state

a claim of defamation by conduct under District of Columbia

common law, and that the plaintiffs have failed to plead the

publication element of the claim.         (Def.’s Mot. [Dkt. #23] at 15-

17.)     Dorlus and Bourciquot claim to have exhausted their

administrative remedies by using the grievance procedures that

are contained in their union’s CBA.        (Pls.’ Surreply at 14-15.)


D.C. caselaw bars quantum meruit recovery.
       16
       D.C. also argues that the plaintiffs, as parties to the
CBA, consented to publication of written reprimands and notices
of suspension reflecting evaluations of their professional
performance. (Def.’s Mot. [Dkt. #37-1] at 23-24; see also CBA at
5-6.) Further, D.C. states that Hastings-Carey and Washington’s
warnings are privileged unless the plaintiffs allege malicious
intent. (Def.’s Mot. [Dkt. #37-1] at 23-24.) These arguments do
not warrant discussion here in light of the multiple, alternate
grounds on which the defamation claim will be dismissed.
                               -29-

They also argue that DOT’s defamatory statements included

warnings issued between July 10 and 16, 2008, and that it defamed

the plaintiffs by conduct when 1) Roberts suspended Bourciquot

and Dorlus for being “AWOL” on July 18, 2008, and 2) “required a

security guard to escort Bourciquot and Dorlus out of the New

York Avenue Terminal lot in full view of their coworkers and in a

manner that suggested they were part of criminal activity.”

(Pl.’s Opp’n at 23; 2d Am. Compl. ¶¶ 85-89, 182-84.)   Saint-Jean

alleges that D.C. defamed her by conduct when Hastings-Carey and

Washington issued four written warnings to her.   (2d Am. Compl.

¶ 185.)

     A.    CMPA

     “‘The CMPA was enacted to provide employees of the District

of Columbia an impartial and comprehensive administrative scheme

for resolving employee grievances.’”   Bowers v. D.C., Civil

Action No. 10–2056 (ESH), 2011 WL 2160945, at *7 (D.D.C. June 2,

2011) (quoting Holman v. Williams, 436 F. Supp. 2d 68, 74 (D.D.C.

2006)).   The Act “recognizes an employee’s right to challenge an

adverse employment decision either by using the grievance

procedures that are contained in an employee’s CBA negotiated by

the union or by pursuing a remedy under the appeal process

contained in the CMPA.”   Brown v. Watts, 993 A.2d 529, 533 (D.C.

2010) (emphasis added).   The employee must choose and pursue one

of these two “methods at the outset of the appeal.”    Id. at 533-
                                 -30-

534.   On the one hand, the CMPA appeal process “requires

employees . . . to appeal an adverse action to the Office of

Employee Appeals (“OEA”), whose final decision is appealable to

the Superior Court.”   Bowers, 2011 WL 2160945, at *7 (citing

Thompson v. D.C., 978 A.2d 1240, 1242–43 (D.C. 2009)); see also

Hoey v. D.C., 540 F. Supp. 2d 218, 231 (D.D.C. 2008) (dismissing

defamation claims since the CMPA required the plaintiff “to

[first] present them to OEA and obtain a Final Decision from that

body before pursuing judicial relief”).   On the other hand, the

plaintiffs’ CBA provides a four-step process for resolving

grievances.   (Def.’s Mot. [Dkt. #23], Ex. 1, “Agreement Between

the Transportation Administrator for DOT and Dist. Council 20”

(“the CBA”) at 6-9.)   These include a discussion between the

employee and her immediate supervisor, the submission of a

written grievance to DOT’s Operations Manager, the submission of

a written grievance to the Transportation Administrator, and a

hearing before arbitrators appointed by the Federal Mediation and

Conciliation Service (“FMCS”).    Id.

       The D.C. Circuit has not yet “resolv[ed] whether th[e]

[CMPA] exhaustion requirement is better understood as

jurisdictional or nonjurisdictional in federal court[.]”    Johnson

v. D.C., 552 F.3d 806, 811 n.2 (D.C. Cir. 2008).    In Robinson v.

D.C., 748 A.2d 409, 411 n.4 (D.C. 2000), a case involving

defamation, emotional distress, and false light claims, the D.C.
                                -31-

Court of Appeals stated that “[t]he [CMPA] is jurisdictional and

provides the exclusive remedy for almost all [work-related]

claims17 against public employers, with an opportunity to appeal

to the Superior Court.”   Where the CMPA applies, however, D.C.

courts have exempted from the exhaustion requirement only tort

claims based upon sexual harassment, which initially may be filed

in Superior Court.   Bowers, 2011 WL 2160945, at *8 n.4.

“[D]efamation claim[s] are . . . considered grievances [that]

must be pursued through CMPA procedures.”   Jackson v. D.C. Dep’t

of Health, Civil Action No. 06-1347 (EGS), 2007 WL 1307891, at *2

(D.D.C. May 3, 2007) (citing Baker v. D.C., 785 A.2d 696, 697-98

(D.C. 2001)) (holding that defamation claims must be litigated

under the CMPA); Hoey, 540 F. Supp. 2d at 231.

     Saint-Jean has neither pled nor argued that she exhausted

her administrative remedies under either of the CMPA’s two

approved methods.    See Brown, 993 A.2d at 533.   Her defamation

claim therefore is preempted by the CMPA, which is “the exclusive

avenue by which aggrieved employees of the District of Columbia

may pursue work-related complaints.”   Evans v. District of

Columbia, 391 F. Supp. 2d 160, 170 n.5 (D.D.C. 2005).     Drawing

all reasonable inferences in Bourciquot’s and Dorlus’s favor,

however, they timely “file[d] a grievance in writing in


     17
       “Work-related complaints . . . include common-law tort
claims against the employee’s supervisors.” Evans, 391 F. Supp.
2d at 170 n.5.
                                    -32-

accordance with the provision of the negotiated grievance

procedure[,]” triggering the CBA method of CMPA exhaustion.

Johnson v. D.C., 368 F. Supp. 2d 30, 37 (D.D.C. 2005) (quoting

D.C. Code § 1-616.52(f)).       (See 2d Am. Compl. ¶¶ 100-104.)    Yet

after Dorlus and Bourciquot’s “Stage 2 grievance hearing[s]” were

cancelled on September 18 and 19, 2008, respectively, they did

not proceed to the final three steps of the grievance procedure

which culminate in arbitration.         (Def.’s Mot. [Dkt. #23], CBA at

8-9.)        Neither have they pled that they appealed any arbitration

decision to the Public Employee Relations Board.        Johnson, 368 F.

Supp. 2d at 37 (citing D.C. Code § 1-605.02(6) (authorizing PERB

review of arbitration awards)).         Since none of the plaintiffs has

pled exhaustion of her administrative remedies as to this claim,

it is subject to dismissal.18       Johnson, 368 F. Supp. 2d at 46

(dismissing defamation claim for failure to exhaust

administrative remedies under the CMPA).

        B.      Notice under § 12-309

        D.C. also argues that the plaintiffs’ failure to provide

notice to D.C. of their defamation claim –- as to the suspension

Roberts issued and the warnings Hastings-Carey wrote -- bars




        18
       The plaintiffs offer no authority supporting the
proposition that their administrative remedies were inadequate.
(See Pls.’ Surreply at 15.)
                                -33-

relief.19   (Def.’s Mot. [Dkt. #37-1] at 24-26.)   Under D.C. Code

§ 12-309,

     [a]n action may not be maintained against the District
     of Columbia for unliquidated damages to person or
     property unless, within six months after the injury or
     damage was sustained, the claimant, his agent, or
     attorney has given notice in writing to the Mayor of
     the District of Columbia of the approximate time,
     place, cause, and circumstances of the injury or
     damage.

Bonaccorsy v. D.C., 685 F. Supp. 2d 18, 23 (D.D.C. 2010) (quoting

D.C. Code § 12-309).   “The notification requirement is strictly

applied[] and . . . ‘construed narrowly’ against claimants” at

this stage of litigation.   Id. (quoting Snowder v. D.C., 949 A.2d

590, 600 (D.C. 2008)).   (Compare Pls.’ Surreply at 14 (stating

that the matter of notice is not properly before the court)).

The plaintiffs neither assert nor provide a factual basis for the

assertion that they provided adequate notice to D.C. of these

alleged injuries.   See Bonaccorsy, 685 F. Supp. 2d at 23

(“‘Notice of one type of injury . . . is not notice of another

type of injury incurred in the same incident.’”) (quoting Breen

v. D.C., 400 A.2d 1058, 1062 (D.C. 1979)).   Accordingly, the

defamation claim based upon conduct by Roberts and Hastings-Carey

will be dismissed also for failure to comply with § 12-309.




     19
       The opening line of the plaintiffs’ response states that
D.C.’s notice argument “is not inaccurate.” (Pls.’ Surreply at
13.)
                                -34-

     C.     Prima facie case

     In the District of Columbia, “a statement is defamatory if

it tends to injure [the] plaintiff in [her] trade, profession or

community standing, or lower [her] in the estimation of the

community.”   Saint-Jean I, 2011 WL 4552982, at *3 (quoting

Guilford Transp. Indus., Inc. v. Wilner, 760 A.2d 580, 594 (D.C.

2000)).    To plead a defamation claim, a plaintiff must allege

“‘1) that the defendant made a false and defamatory statement

concerning the plaintiff; 2) that the defendant published the

statement without privilege to a third party; 3) that the

defendant’s fault in publishing the statement amounted to at

least negligence; and 4) either that the statement was actionable

as a matter of law irrespective of special harm or that its

publication caused the plaintiff special harm.’”     Id. (quoting

Williams v. D.C., 9 A.3d at 491).      However, “actionable

defamation is not necessarily restricted to verbal conduct[.]”

Clampitt v. Am. Univ., 957 A.2d 23, 39 (D.C. 2008) (quotation

marks and citation omitted); see also Wallace v. Skadden, Arps,

Slate, Meagher & Flom, 715 A.2d 873, 878 n.5 (D.C. 1998) (holding

that defendant’s deactivation of the plaintiff’s access key could

not “fairly be characterized as non-defamatory as a matter of

law”).20


     20
       In Wallace, the D.C. Court of Appeals “accept[ed] as true
. . . that [the alleged defamatory conduct -- the deactivation of
an employee’s access key after she was fired from the law firm]
                               -35-

     In resolving a Rule 12(b)(6) motion, “the Court may only

consider whether a statement cannot be reasonably capable of a

defamatory meaning.”   Armenian Assembly of Am., Inc. v.

Cafesjian, 597 F. Supp. 2d 128, 141 (D.D.C. 2009) (citation

omitted) (emphasis in original).    “[I]t is only when the court

can say that the publication is not reasonably capable of any

defamatory meaning and cannot be reasonably understood in any

defamatory sense that it can rule as a matter of law, that it was

not” defamatory.   Id. (internal quotation marks and citation

omitted).   “Context is key,” id. (collecting cases), and “the

publication must be considered as a whole, in the sense [that] it

would be understood by the readers to whom it was addressed.”

Ihebereme v. Capital One, N.A., 730 F. Supp. 2d 40, 56 (D.D.C.

2010).

     The plaintiffs have not stated a claim for defamation

because they have not pled that the offending statements or

conduct were “published” to third parties.    See Saint-Jean I,

2011 WL 4552982, at *3 (describing the second element of a

defamation claim as publication).     They make no allegation that



was ordinarily meted out only to attorneys who had engaged in
criminal or unethical activity.” Wallace v. Skadden, Arps,
Slate, Meagher & Flom, 715 A.2d 873, 878 n.5 (D.C. 1998)
(emphasis added); see also Benic v. Reuters America, Inc., 357 F.
Supp. 2d 216, 222 (D.D.C. 2004). Here, however, the plaintiffs
have not pled that publicly escorting employees off of DOT
property was a sanction reserved for suspected criminals or their
likes.
                               -36-

the warnings Hastings-Carey issued were disclosed to anyone other

than the plaintiffs themselves.   (2d Am. Compl. ¶¶ 184-85.)

Likewise, the plaintiffs do not assert that their suspensions

were made public.   The warnings and suspensions therefore are

“not reasonably capable of any defamatory meaning and cannot be

reasonably understood in any defamatory sense[.]”   Armenian, 597

F. Supp. 2d at 141.   (Compare 2d Am. Compl. ¶ 201 (“DOT . . .

issu[ed] repeated and unnecessary warnings and suspension[s].”).)

     The plaintiffs likewise have cited no authority reflecting

that a security guard escort, even in public view, constitutes

publishing defaming conduct under D.C. law.    The context

described here does not either.   (See 2d Am. Compl. ¶¶ 89-91.)

The plaintiffs describe the humiliation and shame they felt as

“other employees laughed at and mocked” them (2d Am. Compl. ¶¶

90-91) –- a decidedly unpleasant experience.   However, “‘[a]n

allegedly defamatory remark must be more than unpleasant or

offensive; the language must make the plaintiff appear odious,

infamous, or ridiculous.’”   Armenian, 597 F. Supp. 2d at 140-41

(quoting Johnson v. Johnson Publ’g Co., 271 A.2d 696, 697 (D.C.

1970)) (internal quotation marks and citation omitted).      “[A]t

this stage in the litigation[,] the Court need not find that the

statements actually portrayed plaintiff in an ‘odious, infamous,

or ridiculous’ light, but must merely find the statements

‘reasonably susceptible of a defamatory meaning,’ in order to
                                 -37-

find that plaintiff has stated a claim.”    Ihebereme, 730 F. Supp.

2d at 56 (quoting Clawson v. St. Louis Post-Dispatch, L.L.C., 906

A.2d 308, 313 (D.C. 2006)) (emphasis in original).

        Here, the plaintiffs have not pled that they were dragged,

gagged, handcuffed or otherwise restrained, or that the security

guard shouted at or insulted them while he escorted them “from

the trailer to the gate[.]”    (2d Am. Compl. ¶¶ 89, 183.)     They do

not allege that the guard openly declared them to be criminals or

charlatans.    Instead, they offer the “‘naked assertion[,]’”

Iqbal, 129 S. Ct. at 1949, that the guard escorted them “in a

manner that suggested [that] they had engaged in criminal

activity.”    (Id. ¶ 183.)   “[D]evoid of ‘further factual

enhancement[,]’” this allegation does not satisfy the publication

prong of a defamation by conduct claim.    See Iqbal, 129 S. Ct. at

1949.    On these alleged facts, publicly escorting the plaintiffs

off of DOT property “cannot be reasonably capable of a defamatory

meaning.”    Armenian, 597 F. Supp. 2d at 141.

        Accordingly, the defamation claim will be dismissed.

                         CONCLUSION AND ORDER

        The plaintiffs have sufficiently pled their WPA and FLSA

claims.    However, their quantum meruit claim is barred as based

upon an illegal arrangement, and they have failed to state a

claim for defamation by conduct.    Accordingly, it is hereby
                               -38-

     ORDERED that D.C.’s motion [23, 37-1] to dismiss will be

GRANTED IN PART and DENIED IN PART.    The motion will be GRANTED

as to the plaintiffs’ quantum meruit and defamation by conduct

claims.   The motion will be DENIED as to the plaintiffs’ WPA

claim, and as to those portions of the plaintiffs’ FLSA claim

that post-date October 16, 2005.

     SIGNED this 7th day of March, 2012.


                                              /s/
                                      RICHARD W. ROBERTS
                                      United States District Judge
