                  UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
                              )
SEDRICK HAMILTON,             )
                              )
               Plaintiff,     )
                              )
     v.                       )   Civ. Action No. 08-2052 (EGS)
                              )
SANOFI-AVENTIS U.S., INC.     )
                              )
               Defendant.     )
                              )
______________________________)


                        MEMORANDUM OPINION

     Sedrick Hamilton (“Plaintiff”) has brought a two-count

complaint against his employer, pharmaceutical company Sanofi-

Aventis (“Defendant” or “the company”).   Count I alleges that

Defendant violated the D.C. Human Rights Act by harassing

Plaintiff because of his disability, refusing to provide

reasonable accommodation for his disability, and discharging him,

at least in part, because of his disability.   Plaintiff alleges in

Count II that Defendant committed the common law tort of false

imprisonment by restraining him in a storage space by duress.

     Defendant has filed a motion to dismiss Count II pursuant to

Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

Specifically, Defendant contends that the D.C. Workers’

Compensation Act (“WCA”) governs this claim, which in turn would

mean that an administrative agency – the D.C. Department of

Employment Services (“DOES” or “the agency”) – has primary
jurisdiction to adjudicate the claim.     Defendant argues in the

alternative that Plaintiff has failed to state a claim of false

imprisonment because he failed to allege that he was physically

restrained.    Upon consideration of the motion, response and reply

thereto, the applicable law, and the entire record herein, the

Court GRANTS Defendant’s motion to dismiss Count II of the

complaint pursuant to Federal Rule of Civil Procedure 12(b)(1).


I.   Background

      A.   Factual Background1

     As a result of severe bacterial meningitis contracted in June

2000, Plaintiff has disabilities stemming from the amputation of

three toes, hard calluses on his heels and the balls of his feet,

and chronic pain.    Compl. ¶ 7.   Plaintiff has also suffered from

periodic migraine headaches since an automobile accident that

occurred in 2005.    Compl. ¶ 7.

     Plaintiff was hired by Defendant’s District Manager, Maria

Thompson (“Thompson”), to work as a specialty sales

representative, and began working on February 16, 2006.       Compl. ¶

8.   As a condition of taking the job, Plaintiff notified Thompson

in the interview that he could work full days as long as he was

permitted to take periodic breaks – typically four fifteen-minute

breaks over the course of the day.     Compl. ¶¶ 12, 20.   Thompson

     1
        Consistent with the standard of review at the Rule 12 stage,
this section presents the facts as alleged by Plaintiff in his
complaint.

                                   2
accepted this condition as long as Plaintiff made eight sales

calls a day and created a productive work schedule.     Compl. ¶ 12.

Nevertheless, the allegations in Plaintiff’s complaint make clear

that, from Plaintiff’s perspective, there exists a contentious

relationship between himself and Thompson relating to his

performance and the extent to which his physical disability

enables him to perform his job satisfactorily.

     For example, during a first ride-along, Thompson asked

Plaintiff how he was feeling, and he confessed that he was having

migraine headaches.    Compl. ¶ 15.    She expressed dissatisfaction

with the confession because it showed he could not handle the

work, and she subsequently gave him a mediocre job review.     Compl.

¶ 15-16.   After a second ride-along, Thompson gave Plaintiff a

poor job review.    Compl. ¶ 19.   This stands in contrast to a

laudatory review that he received from the Acting District

Manager, Michael Bienick, who filled in for Thompson while she was

on maternity leave.    Compl. ¶¶ 16-17.   Thompson also allegedly

sent a derogatory memorandum concerning Plaintiff’s performance

after he complained to Human Resources regarding Thompson’s

treatment of him.    Compl. ¶¶ 22-23.   Plaintiff claims to have

requested a meeting with Thompson to discuss his progress and

their relationship, which Thompson refused.     Compl. ¶ 26.

Finally, Thompson and Defendant’s Regional Manager accused

Plaintiff of refusing to respond to their phone calls despite the



                                   3
fact that he had a medical appointment when they called.         Compl. ¶

27.

      Plaintiff’s false imprisonment claim arises out of events

that took place on October 12, 2007.      On that day, Thompson and

Tom Hersh (“Hersh”), Defendant’s auditor, requested that Plaintiff

meet them at the Washington Hotel.      Compl. ¶ 28.   Thompson and

Hersh announced that they were randomly auditing the Arlington, VA

storage unit provided by the company in which Plaintiff maintained

his inventory of marketing materials and pharmaceutical product

samples.   Compl. ¶ 28.   Per company policy, Plaintiff had to be

present for the audit and within eyesight during the entire audit.

Compl. ¶ 29.    As a part of the audit, Thompson requested that

Plaintiff assist them in moving some items contained in the

storage unit.    Compl. ¶ 30.    Plaintiff pointed out that he had a

disability and asked if he could change from his dress shoes into

different shoes that were located in his car, but Thompson refused

to allow Plaintiff to go to his car and required him to stand and

walk for the entire audit.      Compl. ¶ 31.

      Plaintiff complains that he sustained injuries to his feet as

his heel bone “slashed through his flesh” as a result of the

physical labor from the audit.      Compl. ¶ 39.   Eventually,

Plaintiff contacted Defendant’s Human Resources Representative,

Scott Rew (“Rew”), and apprised him of the situation.       Compl. ¶

33.   Rew told Plaintiff to document the situation and also told

Thompson that Plaintiff was not required to perform any physical

                                    4
labor.     Compl. ¶ 33.   Thompson nevertheless required Plaintiff to

stand while the audit continued.        Compl. ¶ 34.   Plaintiff complied

for part of the time, but eventually the pain of standing became

so unbearable that he returned to his car.        Compl. ¶¶ 34-35.

      After the storage-unit audit, Thompson ordered Plaintiff to

leave the car while Hersh and Thompson audited the car.        Compl. ¶

35.   Hersh then accompanied Plaintiff in Plaintiff’s car to the

Washington Hotel where the three would review the results of the

audit.     Compl. ¶ 37.   Plaintiff, however, cut short the audit

review because of the severe pain in his feet.         He left after his

friend – an attorney whom Plaintiff had called for help – arrived

at 6:39 p.m.     Compl. ¶ 38.   According to the complaint, the injury

caused from this incident resulted in a severe pain and required

one surgery.     Compl. ¶ 40.   After returning from medical leave,

Plaintiff’s employment was terminated as of May 28, 2008.        Compl.

¶ 41.

      B.   Procedural Background

      Plaintiff filed a complaint against Defendant in the Superior

Court of the District of Columbia on October 9, 2008.        Defendant

removed the case to this Court based on diversity jurisdiction and

subsequently filed a motion to dismiss Count II of the complaint

(the false imprisonment claim).2


      2
        Plaintiff argues that Defendant’s failure to address Count I
(the discrimination claim) was tantamount to defaulting on that count.
Defendant responds that it has not defaulted on Count I because it
filed a motion to dismiss, which permits a defendant to delay the

                                    5
      Plaintiff opposes Defendant’s motion and requests that the

Court strike the Background section contained therein, arguing

that the section contains facts that “directly contradict the

allegations of the Complaint.”    Pl.’s Opp’n at 2.    Defendant

responds that “[it] did not intend for the information presented

in the Background section to be considered for any other purpose

and, in fact, acknowledged that this Court is bound to consider

the facts in the Complaint as true for purposes of this Motion.”

Def.’s Reply at 2 n.1.    The Court agrees with Defendant that the

Background section need not be struck; the section will, however,

be ignored insofar as Defendant presents facts in contradiction to

the facts set forth in the complaint.


II.   Discussion

      A.   Standard of Review

      On a motion to dismiss for lack of jurisdiction filed

pursuant to Federal Rule of Civil Procedure 12(b)(1), the

plaintiff bears the burden of establishing the Court’s




submission of an answer until the motion is denied or its disposition
is postponed until trial. The Court concludes that Defendant has not
defaulted on Count I despite its failure to file an answer within the
specified time limit. See Hinson v. Merritt Educ. Ctr., 521 F. Supp.
2d 22, 34 (D.D.C. 2007) (noting that no answer had been filed to one
of the plaintiff’s claim, “notwithstanding the fact that Defendants
did not move to dismiss that claim and that their time to answer has
long since passed,” and ordering defendants to file an answer); Fed.
R. Civ. P. 12(a)(4)(A) (recognizing that a motion to dismiss alters
the time limit for filing an answer). In the Order accompanying this
Memorandum Opinion, the Court therefore directs Defendant to file an
answer to Count I of the complaint.

                                   6
jurisdiction.     See, e.g., he plaintiff bears the burden of

establishing that the court has subject-matter jurisdiction.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).       In

deciding a 12(b)(1) motion, moreover, the court must give the

plaintiff’s factual allegations closer scrutiny than would be

required for a Rule 12(b)(6) motion because subject-matter

jurisdiction focuses on the Court’s power to hear the claim.         See

Uberoi v. EEOC, 180 F.Supp.2d 42, 44 (D.D.C. 2001).

“Additionally, a court may consider such materials outside the

pleadings as it deems appropriate to resolve the question whether

it has jurisdiction to hear the case.”     Scolaro v. D.C. Bd. of

Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000) (citing

cases).

       B.   Applicability of the WCA

       The WCA requires employers to provide compensation to

employees who are injured in the course of their employment where

the injury occurs in the District or the employment is “localized

principally” therein.     D.C. Code §§ 32-1501(12), 32-1503(a)(1)-

(2).    For injuries covered under the WCA, the statute provides

“the employee’s exclusive remedy against the employer.”     Id. § 32-

1504(b); see Rustin v. District of Columbia, 491 A.2d 496, 501

(D.C. 1985) (explaining that the WCA “deprives employees and their

representatives of the right to pursue common law tort suits . . .

against their employers or co-workers if the injuries are covered


                                   7
by the Act” (internal quotation marks omitted)).   The definition

of “injury” in the WCA includes the “willful act[s] of third

persons,” but does not apply to the intentional acts of the

employer.   D.C. Code § 32-1501(12); see Grillo v. Nat’l Bank of

Wash., 540 A.2d 743, 748 (D.C. 1988) (“[B]y definition, injuries

to an employee that are intended by the employer fall outside of

the WCA’s exclusivity provisions, even though they are work-

related, because they are nonaccidental.” (emphasis in original)).

Where the employer is a corporation, however, only actions by an

individual “who is realistically the alter ego of the corporation

and not merely a foreman, supervisor or manager” can be treated as

the intentional acts of the employer itself.   Rustin, 491 A.2d at

501 (internal quotation marks omitted).

     “[W]hen there is a ‘substantial question’ whether the WCA

applies, the administrative agency charged with implementing the

statute, given its special expertise, has ‘primary jurisdiction’

to ‘make the initial determination concerning coverage’ before the

courts can exercise jurisdiction.”   Estate of Underwood v. Nat’l

Credit Union Admin., 665 A.2d 621, 631 (D.C. 1995) (quoting

Harrington v. Moss, 407 A.2d 658, 661 (D.C. 1979)); see Grillo,

540 A.2d at 750 (explaining that a substantial question exists

unless the injuries are “clearly not compensable” under the WCA

(emphasis and internal quotation marks omitted)); see also Daniel

Keating, Comment, Employee Injuries Cases: Should Courts or Boards


                                 8
Decide Whether Workers’ Compensation Laws Apply?, 53 U. Chi. L.

Rev. 258, 266-67 (1986) (“Under the substantial question approach,

jurisdiction to determine jurisdiction rests primarily with the

board.    Only if there is no ‘substantial question’ – that is, if a

court views all factual questions as settled in a given action –

can a court make the ‘pure law’ determination of which law

applies.”).    And because the WCA contains a number of presumptions

that favor coverage, the employee bears the burden of proving that

the WCA does not apply.    See Harrington, 407 A.2d at 662-63.

     Defendant argues that Plaintiff’s injury falls under the WCA

because (1) it was “plainly ‘accidental’ within the meaning of the

WCA,” (2) it arose out of and in the course of his employment, and

(3) Plaintiff’s employment was localized principally within the

District.    Def.’s Mem. P. & A. Supp. Mot. Dismiss (“Def.’s Mem.”)

at 6-7.    In addition, Defendant contends that neither Thompson nor

Hersh qualifies as “realistically the alter ego” of Defendant, so

that any intentional actions by them cannot be imputed to the

company.    Def.’s Mem. at 6.   Alternatively, Defendant points out

that even if the Court disagrees that the injury is clearly

compensable under the WCA, a substantial question about the

applicability of the WCA is sufficient to require dismissal of

Count II.    Def.’s Mem. at 4-5.

     Plaintiff does not contest that the injury arose out of and

in the course of his employment or that his employment was



                                   9
localized principally within the District.3     He emphasizes,

however, that only “accidental” acts fall under the WCA, and

contends that he has alleged facts showing that (1) while

conducting an audit of the storage unit, Thompson and Hersh were

acting directly with the full authority and as the alter ego of

the corporate entity; and (2) Thompson’s actions “reveal the

deliberate actions of a manager intending to injure the Plaintiff

and intending specifically to create the harm that resulted.”

Pl.’s Opp’n at 2-3.

     Under the legal standards discussed above, Plaintiff’s claim

can only survive Defendant’s 12(b)(1) motion if the facts he has

alleged leave no substantial question that the company intended to

     3
        Plaintiff does rely on Estate of Underwood, 665 A.2d 621, to
argue that his claim does not fall under the WCA because that statute
“does not compensate emotional distress claims arising out of
discriminatory acts.” Pl.’s Opp’n at 3. In that case, the court held
that it, not the agency, had primary jurisdiction over the plaintiff’s
intentional infliction of emotional distress claim arising from
pervasive sexual harassment by a supervisor. The court concluded as a
matter of law that sexual harassment is not a “‘risk involved in or
incidental to’ employment,” and reasoned that because the plaintiff’s
emotional distress arose out of the sexual harassment, the claim was
not covered by the WCA. Id. at 634 (quoting Fazio v. Cardillo, 109
F.2d 835, 836 (D.C. Cir. 1940). To the extent that Plaintiff’s
reliance on this case is an attempt to argue that the injuries about
which he complains did not arise out of and in the course of his
employment, his argument is unpersuasive, because his claim is easily
distinguishable from the circumstances presented in Estate of
Underwood. Plaintiff’s injuries arose out of the conditions presented
by the auditing of his storage space; namely, that he was required to
stand for long periods of time. Unlike the plaintiff in Underwood,
his injuries are directly traceable to that activity, which he does
not dispute was a standard part of his employment. Thus, even if
Thompson required him to remaining standing because of a
discriminatory animus, this is not a situation where the claim arises
out of something that is not a risk incidental to employment. Cf. id.
at 633 n.18 (distinguishing from a claim “grounded only in part on” a
discriminatory act).

                                  10
injure Plaintiff during the audit at the storage space.   To reach

that conclusion, moreover, the Court would have to find that

Thompson and/or Hersh were “realistically the alter ego” of

Defendant and that they acted with the specific intent to injure

Plaintiff.   See Grillo, 540 A.2d at 744 (holding that “only

injuries specifically intended by employer to be inflicted upon

the particular employee who is injured fall outside the

exclusivity provisions of the WCA”); see also Underwood, 665 A.2d

at 633 n.19 (explaining that to show intent, the board of

directors had to do more than know that the plaintiff would be

hurt – the board of directors would have had to have intended for

the plaintiff to be injured to conclude that the harm was

intentional rather than accidental within the meaning of the WCA).

     Plaintiff’s complaint does not permit such a finding by the

Court.   At the very least, there exists a substantial question as

to whether, as Plaintiff argues, “Thompson and Hersh were

conducting an audit of the storage unit and were acting directly

with the full authority and as the alter ego of the corporate

entity.”   Pl.’s Opp’n at 3.   There is also a substantial question

as to whether, assuming that Thompson and Hersh were Defendant’s

alter egos, they acted with the specific intent to harm Plaintiff.

In short, because there is a substantial question as to whether

Plaintiff’s claim for injuries arising from his alleged false

imprisonment is covered under the WCA, the claim must be brought



                                  11
before DOES in the first instance.        This Court therefore concludes

that it lacks jurisdiction over Count II and that Defendant’s

motion to dismiss should be granted pursuant to Rule 12(b)(1).4


III.       Conclusion

       Accordingly, for the reasons set forth above, the Court

GRANTS Defendant’s motion to dismiss Count II of the complaint.

An appropriate Order accompanies this Memorandum Opinion.


Signed:        Emmet G. Sullivan
               United States District Judge
               June 24, 2009




       4
        Having concluded that dismissal of Count II is required under
Rule 12(b)(1), the Court need not reach Defendant’s contention that
Count II should be dismissed for failure to state a claim pursuant to
Rule 12(b)(6).

                                     12
