                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



 GLENFORD HEWITT,

        Plaintiff,
                v.                                          Civil Action No. 16-2192 (JEB)
 CHUGACH GOVERNMENT SERVICES,
 INC.,

        Defendant.


                                  MEMORANDUM OPINION

       Plaintiff Glenford Hewitt worked for six years as a Facility Maintenance Technician for

Defendant Chugach Government Services, Inc., here in Washington. In the summer of 2016,

Chugach fired him for allegedly sleeping on the job. He responded with this suit for wrongful

termination, which Defendant now moves to dismiss. As Chugach correctly points out, Hewitt

has not demonstrated that his claim falls within the public-policy exception to the doctrine that

bars at-will employees from suing for wrongful discharge. The Court will thus grant

Defendant’s Motion.

I.      Background

       According to Plaintiff’s Complaint, which must be presumed true for purposes of this

Motion, he “was employed on an at-will basis as a Facility Maintenance Technician by

Defendant through Potomac Job Corps Center, Washington, District of Columbia,[] since March

22, 2010.” ECF No. 1-1, Attach. B (Complaint), ¶ 2. “On or about June 22, 2016[,] Defendant

alleged that Plaintiff was ‘sleeping’ on the job and as proof thereof, the Human Resources

Manager alleged in writing that it [sic] ‘received a picture’ of Plaintiff sleeping on the job” that


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day. Id., ¶ 5. Although Plaintiff denied such somnolence, the company nonetheless relieved

him of his position in early July. Id., ¶¶ 6-7. Hewitt alleges that Defendant subsequently

admitted that no photographic proof existed. Id., ¶ 10.

       The Complaint sets out no specific causes of action. Given that it is entitled “Complaint

for Wrongful Termination of Employment,” id. at 1, however, the Court assumes this is the sole

count asserted. Plaintiff initially filed in the Superior Court of the District of Columbia, but

Defendant removed the matter here on the basis of diversity jurisdiction on November 2, 2016.

See ECF No. 1. In setting out his claim, Hewitt alleges that his termination contravened the

District’s public policy set forth in “D.C. Code, Title 51-110(b)(1)(2) [sic],” Compl., ¶ 11, a

code section related to unemployment benefits. More particularly, he alleges that, in responding

to his application for unemployment compensation, “the District of Columbia Department of

Employment Services concluded that Defendant has not established gross misconduct for the

discharge of Plaintiff from his employment.” Id., ¶ 9. Hewitt also claims to have “reasonably

relied on the provisions of the personnel manual regarding the cause for which employees could

be terminated and the procedures set forth for such termination,” which procedures, he believes,

were not followed. Id., ¶ 8.

       Defendant has now moved to dismiss under Federal Rule of Civil Procedure 12(b)(6).

II.     Legal Standard

       Rule 12(b)(6) provides for the dismissal of an action where a complaint fails “to state a

claim upon which relief can be granted.” In evaluating Defendants’ Motion to Dismiss, the

Court must “treat the complaint’s factual allegations as true . . . and must grant plaintiff ‘the

benefit of all inferences that can be derived from the facts alleged.’” Sparrow v. United Air

Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (quoting Schuler v. United States, 617 F.2d



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605, 608 (D.C. Cir. 1979)) (citation omitted); see also Jerome Stevens Pharms., Inc. v. FDA, 402

F.3d 1249, 1250 (D.C. Cir. 2005). The pleading rules are “not meant to impose a great burden

upon a plaintiff,” Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005), and he must thus be

given every favorable inference that may be drawn from the allegations of fact. Scheuer v.

Rhodes, 416 U.S. 232, 238 (1974).

        Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6)

motion, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), “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 Twombly, 550 U.S. at 570). Plaintiff must

put forth “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 “a legal

conclusion couched as a factual allegation,” nor an inference unsupported by the facts set forth in

the Complaint. Trudeau v. Fed. Trade Comm’n, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting

Papasan v. Allain, 478 U.S. 265, 286 (1986) (internal quotation marks omitted)). For a plaintiff

to survive a 12(b)(6) motion even if “‘recovery is very remote and unlikely,’” moreover, the

facts alleged in the complaint “must be enough to raise a right to relief above the speculative

level.” Twombly, 550 U.S. at 555-56 (citing Rhodes, 416 U.S. at 236).

III.    Analysis

        Plaintiff’s claim here is that Chugach improperly sacked him. His principal hurdle,

therefore, is his concession that he was merely an at-will employee. See Compl., ¶ 2. Such

status is not necessarily fatal to a wrongful-termination suit, however, as the Court explained in a

similar case:

                The general law “in the District of Columbia [is] that an employer
                may discharge an at-will employee at any time and for any reason,

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               or for no reason at all.” Adams v. George W. Cochran & Co., Inc.,
               597 A.2d 28, 30 (D.C. 1991) (citations omitted). In Adams, the D.C.
               Court of Appeals held that “there is a very narrow exception to the
               at-will doctrine under which a discharged at-will employee may sue
               his or her former employer for wrongful discharge when the sole
               reason for the discharge is the employee's refusal to violate the law,
               as expressed in a statute or municipal regulation.” Id. at 34.

               The DCCA then expanded this exception six years later in its en
               banc decision in Carl v. Children’s Hospital, 702 A.2d 159 (D.C.
               1997). The plaintiff in Carl was a nurse who was terminated after
               she testified in the City Council against the hospital’s interests and
               also as an expert witness for plaintiffs in malpractice cases. Id. at
               160. The majority of the DCCA – as constituted by those joining
               Judge Terry’s concurrence and Judge Steadman’s dissent – held that
               Adams’s exception was not the only possible one, but that “the
               recognition of any such [future public-policy] exception must be
               firmly anchored either in the Constitution or in a statute or regulation
               which clearly reflects the particular ‘public policy’ being relied
               upon.” Id. at 162 (Terry, J., concurring). In addition, “[t]his court
               should consider seriously only those arguments that reflect a clear
               mandate of public policy − i.e., those that make a clear showing,
               based on some identifiable policy that has been ‘officially declared’
               in a statute or municipal regulation, or in the Constitution, that a new
               exception is needed. Furthermore, there must be a close fit between
               the policy thus declared and the conduct at issue in the allegedly
               wrongful termination.” Id. at 164 (Terry, J., concurring) (footnotes
               omitted).

Robinson v. Securitas Servs., Inc., 819 F. Supp. 2d 18, 20 (D.D.C. 2011).

       In seeking to identify a public policy here that his termination violated, Plaintiff comes

up only with D.C. Code § 51-110(b)(2). See ECF No. 8 (Opposition) at 2; Compl., ¶ 11

(mislabeled as “(b)(1)(2)”). This statute, however, relates to unemployment benefits and

explains the situations in which they are available. For example, (b)(1) refers to individuals

“discharged for gross misconduct,” and (b)(2) concerns those “discharged for misconduct, other

than gross misconduct.” This statute in no way articulates or even suggests a public-policy

exception to the at-will doctrine.




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          Hewitt nonetheless contends that § 51-110 means that employees “can be discharge [sic]

only for gross misconduct occurring in the course of the employment.” Compl., ¶ 11; see Opp.

at 2 (“[A]n identifiable policy, namely, an employee cannot be terminated except for gross

misconduct, has been ‘officially declared’ in the said D.C. Code.”). The statute says nothing of

the kind, and any such interpretation would eviscerate the notion of at-will employment. This

claim thus cannot proceed.

          Finally, the Court pauses to note that Plaintiff’s Complaint also alleges that he

“reasonably relied on the provisions of the personnel manual regarding the causes for which

employees could be terminated and the procedures set forth for such termination,” which he says

were not followed here. See Compl., ¶ 8. Defendant correctly rejoins that a violation of an

employer’s own policies “does not fall within the narrow ambit of the public[-]policy exception.”

ECF No. 7 (Motion) at 5; see Jones v. Dist. of Columbia Water & Sewer Auth., 963 F. Supp. 2d

17, 21 (D.D.C. 2013) (“[I]t is clear that an employer’s violation of mere internal policies cannot

support the exception.”) (citations omitted). Plaintiff’s abbreviated two-page Opposition does

not even mention the manual or make any other argument that it could somehow support a

different or separate claim such that dismissal would be unwarranted. In such a circumstance, it

is not the Court’s duty to articulate a theory for him. See Lewis v. Dist. of Columbia, 2011 WL

321711, at *1 (D.C. Cir. 2011) (“It is well understood in this Circuit that when a plaintiff files an

opposition to a dispositive motion and addresses only certain arguments raised by the defendant,

a court may treat those arguments that the plaintiff failed to address as conceded.”) (quoting

Hopkins v. Women’s Div., Gen. Bd. of Global Ministries, 284 F. Supp. 2d 15, 25 (D.D.C.

2003)).




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IV.     Conclusion

        The Court, accordingly, will dismiss the case without prejudice. An accompanying Order

will issue this day.

                                                   /s/ James E. Boasberg
                                                   JAMES E. BOASBERG
                                                   United States District Judge
Date: December 5, 2016




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