                      UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF COLUMBIA


ROSA ARIAS,

             Plaintiff,

        v.

MARRIOTT INTERNATIONAL, INC.,               Civil Action No. 15-1258 (GK)

             Defendant.




                            MEMORANDUM OPINION

        Plaintiff   Rosa   Arias,      ("Plaintiff")       brings   this   action

against Defendant, Marriott International, Inc.,                ("Defendant," or

"Marriott"), for herself and others similarly situated. Ms. Arias

alleges violation of 42       u.s.c.    1981 for discrimination based on

race, national origin and retaliation (Count 1), breach of contract

    (Count 2), breach of the implied covenant of good faith and fair

dealing (Count 3), wrongful termination (Count 4), negligence and

negligent     misrepresentation        of     material      facts    (Count    5)   I




aggravated assault     (Count 6),      fraudulent concealment of material

fact (Count 7), and violation of D.C. Code             §   32-1103 (Count 7 1 ) .




1    Plaintiff has asserted two Counts 7 in her Amended Complaint.
           This matter is        presently before the             Court on Defendant's

Motion to Dismiss Plaintiff's Second Amended Complaint                             ("Mot.")

[Dkt. No. 3 3] .

           Upon consideration of the Motion, Opposition, and Reply, the

entire record herein, and for the reasons stated below, Defendant's

Motion is granted in part and denied in part.

I .        BACKGROUND

      A.     Factual Background

           Plaintiff Rosa Arias, a Spanish American, has been employed

in     the    Housekeeping       Department          at    the   Defendant's   Washington

Marriott at Metro Center ("the Hotel") since 2003. Second Amended

Complaint       ~~    3, 16, 19      ("SAC")    [Dkt. No.        31] . As a housekeeper,

Ms. Arias' duties included cleaning hotel rooms and bathrooms. Id.

~     3. · These duties required her to work with hazardous chemicals

such as furniture polish and antibacterial all-purpose cleaning

agents. Id.          ~~   3, 17. Ms. Arias asserts that the chemicals required

the use of Personal Protective Equipment ( "PPE") , and that Marriott

withheld the required PPE. Id.                 ~~    3, 16.

           Ms. Arias asserts that at some point during her employment,

she        experienced      severe     eye    irritation,        headaches,    respiratory

illness        and    chest    pain.    SAC    ~4.        Although   Ms.   Arias   did   not

initially know the cause of her illnesses,                        she now believes that



                                               -2-
they were related to the hazardous chemicals that she used at work.

Id. ~~ 3-4, 7.

       In early 2015,       Ms. Arias requested and was granted a four

month medical leave of absence.                   SAC       ~    5.   She was scheduled to

return to work on May 15, 2015. Id. While on leave, Ms. Arias was

diagnosed with either heart or respiratory complications. Id.                                    ~    6.

       On March 31,       2015,     while    still on leave,                 Ms.    Arias gave

deposition     testimony       in    another            case,         Sanchez       v.     Mariott

Corporation,     12-cv-1577,        (D.D.C.),           a       separate     Title       VII     suit

against   Defendant's       affiliate        Marriott             Corporation,           about       the

chemicals she used at the Hotel and the use of those chemicals

without PPE. SAC     ~~     7-12. Her testimony included statements that

she and her coworkers told Marriott that the chemicals were making

them   sick    and   that    Marriott        never              trained    the     Housekeeping

Department on the hazards of the chemicals.                            Id.   ~     9. Ms. Arias

asserts   that Defendant obviously had notice of                              her deposition

testimony in the Sanchez case. Id.                 ~    30.

       On May 14,    2015, one day before Ms. Arias was scheduled to

return to work, she received a phone message from the Defendant's

representative informing her that her employment was terminated




                                            -3-
and someone else had taken her position.          SAC~   14. However, later 2 ,

she was told that her termination was rescinded. Id.

          In July,   August and September 2015,      Ms. Arias communicated

with the Hotel about returning from her leave of absence,                    and

whether she would have access to PPE upon her return. SAC               ~~   15-

16, 19. Ms. Arias asserts that at this point, her leave of absence

was unpaid. Id.       ~~   15-16. On September 20, 2015, Ms. Arias returned

to work, and she remains employed by the Hotel. Motion to Dismiss

Plaintiff's Second Amended Complaint at 3            ("Mot.")   [Dkt. No. 33-

1]

     B.     Procedural Background

          On or about June 15, 2015, Ms. Arias filed a Complaint in the

Superior Court of the District of Columbia. See Corrected Notice

of Removal at 1 [Dkt. No. 2].          On August 8, 2015, Defendants filed

a Notice of Removal from D.C. Superior Court [Dkt. No. 1].

          On August 26, 2015, Ms. Arias filed a Consent Motion for Leave

to File an Amended Complaint ("Consent Motion to Amend")             [Dkt. No.

8]. On August 27, 2015, the Court granted Ms. Arias' Consent Motion

to Amend [Dkt. No.          9], and she filed the First Amended Complaint

[Dkt. No.      10]. On April 21,      2016,   this Court granted Ms. Arias'

Motion for Leave to File a           Second Amended Complaint.      April 21,



2The Second Amended Complaint gives no indication as to when Ms.
Arias' alleged termination was rescinded.
                               -4-
2016 Order         [Dkt.   No.   30].    That same day,             she filed the Second

Amended Complaint, which is the operative Complaint.

        On May 5, 2016, Marriott filed a Motion to Dismiss Plaintiff's

Second Amended Complaint [Dkt. No. 33]. On June 1, 2016, Ms. Arias

filed her Opposition             ("Opp.")      [Dkt.       No.    37].   On June 13,   2016,

Marriott filed its Reply ("Reply")                       [Dkt. No. 38].

       On August 12, 2016, Ms. Arias filed a Notice of Dismissal of

Claims      from    Plaintiff's         Second       Amended      Complaint     ("Notice     of

Dismissal")        [Dkt. No. 40-1] and voluntarily dismissed three of her

eight claims.


II.     STANDARD OF REVIEW

       To    survive       a   motion     to    dismiss          under   Rule   12(b) (6),    a

plaintiff need only plead "enough facts to state a claim to relief

that is plausible on its face" and to "nudge[]                           [his or her] claims

across the line from conceivable to plausible." Bell Atlantic Corp.

v.    Twombly,     550 U.S.      544,    570    (2007).      "[O]nce a claim has been

stated adequately, it may be supported by showing any set of facts

consistent with the allegations in the complaint." Id. at 563.

       Under the Twombly standard,                   a    "court deciding a motion to

dismiss must not make any judgment about the probability of the

plaintiffs' success ...           [,] must assume all the allegations in the

complaint are true (even if doubtful in fact) ...                         [, and] must give


                                               -5-
the plaintiff 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    citations     omitted) .       A complaint      will    not

suffice,       however,       if it "tenders          'naked assertion[s]'          devoid of

    'further factual enhancement.'" Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009)          (quoting Twombly, 550 U.S. at 557).

III. ANALYSIS

           A. Counts 5 and Both Counts 7

           Ms. Arias has voluntarily dismissed her claims of negligence

and        negligent       misrepresentation          of   material       facts    (Count   5),

fraudulent concealment of material fact                        (Count 7), and violation

of D.C. Code           §   32-1103    (Count 7). Notice of Dismissal of Claims

from Plaintiff's Second Amended Complaint ("Notice of Dismissal")

    [Dkt. No 40-1]. Thus,            the Court will only address the merits of

the remaining five claims.

      B.     Count 1- Violation of Title VII

             1. Racial Discrimination

           Ms. Arias alleges violation of Title VII, 42 U.S.C. 1981, for

discrimination based on race, national origin3 and retaliation. In


3 Defendant argues that Ms. Arias cannot make a Title VII claim
based on her national origin. Mot. at 20, citing Amiri v. Securitas
Sec. Servs. USA, Inc., 35 F. Supp. 3d 41, 47 (D.D.C. 2014), aff'd,
608 F. App'x 15 (D.C. Cir. 2015). Ms. Arias does not appear to be
making an argument that she faced discrimination based on being
                                                -6-
order   to   establish a prima facie case of                 racial   discrimination

under Title VII, a plaintiff must show that "(1)                  [s]he is a member

of a protected class,        (2)   [s] he suffered an adverse employment

action, and (3) the unfavorable action gives rise to an inference
                                           ;




of discrimination (that is, an inference that [her] employer took

the action because of       [her] membership in the protected class) "

Forkkio v. Powell, 306 F.3d 1127, 1130 (D.C. Cir. 2002) . 4

     The parties do not dispute that Ms. Arias is a member of a

protected class.

     Ms.     Arias   has   also    shown       that    she    suffered    an   adverse

employment action. An adverse employment action is "a significant

change in employment status,         such as hiring,            firing,   failing to

promote,        reassignment         with             significantly        different



from Nicragua separate and apart from discrimination based on race.
Therefore, the Court will consider only the claim of discrimination
based on race.

4 Ms. Arias' reliance on Sparrow v. United Air Lines, Inc., 216
F.3d 1111 (D.C. Cir. 2000) is not sufficient to overcome her
pleading deficiencies. Ms. Arias is correct that she need not plead
facts showing each of these elements in order to def eat a Motion
to Dismiss. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 515 (2002).
However, her Complaint still must put the Defendant on notice of
her legal theory and must contain allegations entitling her to
offer evidence to support the claims. Id. Ms. Arias does claim
that she is Hispanic, but does not claim that she was fired because
of her race. Instead, she argues that she was fired because of her
participation in a protected activity. Opp. at 8. Consequently,
Ms. Arias' allegations entitle her to produce evidence on her claim
of retaliation, but not of racial discrimination.

                                      -7-
responsibilities,       or a decision causing a significant change in

benefits." Douglas v. Preston, 559 F.3d 549, 552 (D.C. Cir. 2009).

       Ms.   Arias alleges that on May 14,           2015,   while she was on

medical leave,       Defendant's representative notified her that she

had been terminated. 5 SAC       ~   14. Although Plaintiff concedes that

her termination was rescinded at a later date, she claims that she

was forced to remain on an unpaid leave of absence until her return

to work on September 20, 2015.         SAC~~     5, 14-16, 19. As a result of

this unpaid leave, Ms. Arias "was financially distressed" and was

in "emergency need of money to pay her rent and to buy food." SAC

~   15-16. Unpaid leave for even a month may constitute a materially

adverse employment action. See Burlington N. & Santa Fe Ry. Co. v.

White, 548 U.S. 53, 72 (2006). Therefore, Ms. Arias has adequately

plead this element of racial discrimination.

      Ms.    Arias must also plead a causal connection between her

race and the materially adverse action. Ms. Arias fails to do so

because      she   conflates   her claims   of    racial . discrimination and

retaliation under Title VII.           Addressing both of her Title VII

claims at once, Ms. Arias argues that she has satisfied the third




5 Defendant denies that Ms. Arias was ever terminated. Mot. at 2,
18, and 22. It is unclear from the Second Amended Complaint whether
Plaintiff was paid while on medical leave, but it is clear that
she was not paid between mid to late May 2015 and September 20,
2015 when she returned to work. SAC ~~ 5, 14-16, 19
                                -8-
element of a racial discrimination claim because, "[t]he employer

took material     adverse        employment       action      for    her    (Plaintiff's)

participation in the protected activity."                     Opp.    at 8.       Ms. Arias

cites in her Opposition the 44 days between her deposition and the

unpaid leave as        evidence of        the causal connection between her

proteated status and her unpaid leave,                   but does not attempt to

connect the employer's racial discrimination to her unpaid leave.

Id.

       However, in her Second Amended Complaint, Ms. Arias makes no

factual     allegations    that     race    was    the     reason     for       the   Hotel's

actions, and does not identify any disparate treatment between her

and non-Hispanic housekeepers. In fact, Ms. Arias does not identify

the race of any other housekeepers at the Hotel. Consequently, she

has   not    satisfied     the    third     element      of    a     Title      VII    racial

discrimination claim.

          2. Retaliation

      However,   Ms.     Arias     has    successfully         plead       in   her    Second

Amended Complaint a claim of retaliation under Title VII. In order

to establish a prima f acie case of retaliation, the plaintiff must

demonstrate that he or she engaged in a protected activity and the

employer's retaliation, which was materially adverse, was based on

that activity. See e.g., Johnson v. Perez, 823 F.3d 701, 706 (D.C.

Cir. 2016).

                                           -9-
       Marriott does not          dispute    that Ms.       Arias'         testimony in a

separate case against Defendant constitutes a protected activity.

Protected activity          includes      having    "made    a    charge,       testified,

assisted,   or     participated      in any manner           in       an    investigation,

proceeding, or hearing" on the basis of discrimination under these

statutes. Jones v.          Billington,     12 F.Supp.2d 1,            13    (D.D.C.1997),

aff 'd 1998 WL 389101         (D.C. Cir. 1998).         Given the fact that Ms.

Arias testified in Sanchez,               there    is no question that she has

therefore plead that she engaged in a protected activity.

       As demonstrated above, Ms. Arias had some amount of absence

without pay,       which,    if   true,     constituted a         materially adverse

employment action. See supra at 7-8, 8 n. 5;                     ~~   14-16.

       Finally, Ms. Arias has adequately plead a causal connection

between her deposition testimony and her unpaid leave of absence.

Defendant had knowledge of Ms. Arias' deposition in Sanchez. SAC

~   30. Ms. Arias argues that the 44 days between her deposition in

Sanchez and the call terminating her employment establishes the

causal connection required to plead a claim under Title VII. Opp.

at 8. In the absence of direct evidence, "mere temporal proximity

may establish causation." Keys v. Donovan, 37 F. Supp. 3d 368, 372

(D.D.C.   2014).    Thus,     viewed in the light most favorable to Ms.

Arias, she has adequately plead a claim for retaliation under Title

VII.
                                          -10-
     C.     Count 2- Breach of Contract

          Defendant has argued that Plaintiff may not bring a claim of

breach of contract because she was an employee at-will. See Daisley

v.    Riggs    Bank,       N.A.,    372   F.     Supp.       2d    61,    67     (D.D.C.      2005)

("Termination         of     employment,         []    does       not    breach      an     at-will

employment      contract,          because      by    its    very       terms    the    agreement

contemplates          that     either        party          may     end        the     employment

relationship, with or without cause.")

          Our Court    of Appeals         has    ruled that,             "in the       absence of

clearly expressed contrary intent.                           . the parties have in mind

merely the ordinary business contract for continuing employment,

terminable at the will of either party." Minihan v. , Am.                                    Pharm.

Ass'n., 812 F.2d 726, 727 (D.C. Cir. 1987). In other words, there

is a presumption in this jurisdiction that,                              "unless a contrary

intent is clearly expressed, all employment is at-will." Greene v.

Bowne of New York LLC, 02-cv-1263, 2002 WL 34936072, at *1 (D.D.C.

September 5, 2002).

          "[A] plaintiff bears the burden of alleging facts sufficient

to show that the parties intended that termination be subject to

specific preconditions." Daisley v. Riggs Bank, N.A., 372 F. Supp.

2d 61, 70 (D.D.C. 2005). However, the Court disagrees that overly

detailed factual pleadings are required, as some courts have held.

See Harris v.      Corr. Corp. of 'Am.,               796 F. Supp.          2d 7,      12   (D.D.C.

                                               -11-
. 2011)        (granting    Motion     to     Dismiss          when    "plaintiff's      only

allegations regarding the terms of his employment contract [were]

that      he     'was   employed     pursuant        to   an    express   and/or   implied

employment contract,'           that 'he was not an at will employee'                     and

 'could not be terminated without due process and only for cause,'

and that he 'was paid a starting salary of $45,000 per annum.').

We remain in a notice pleading system." Swierkiewicz, 534 U.S. at

515.

          The Court finds that Ms. Arias' allegations that "Plaintiff

was a contract employee under expressed terms with all contract

rights         and   privileges      afforded        thereto      by    the   District     of

Columbia," and that "[t]ermination of [the] contract could only be

effected for            just cause,"    SAC     ~~    59-60,      constitute    sufficient

pleadings that she was not an at-will employee. Ms. Arias' alleged

termination, however temporary, may therefore support a claim for

breach of contract.

   D.       Count 3- Breach of Implied Covenant of Good Faith and Fair
            Dealing

          "All contracts in the District of Columbia contain an implied

duty of good faith and fair dealing, which means that neither party

shall do anything which will have the effect of destroying or

injuring the right of the other party to receive the fruits of the

contract." Brown v. Sessoms, 774 F.3d 1016, 1025 (D.C. Cir. 2014)


                                            -12-
(internal quotations omitted). "A party breaches this covenant if

it evades the spirit of the contract, willfully renders imperfect

performance, or interferes with performance by the other party to

the contract." Id.      (internal quotations omitted).

       Defendant argues that this claim must be dismissed because

Ms.    Arias has not adequately plead the existence of a contract

with preconditions for her termination. Given the fact that Ms.

Arias has plead the existence of a contract, see supra at 11-13,

and that no discovery has been begun, the Court feels compelled to

allow her to go forward on this Count.

  E.      Count 4- Wrongful Termination in Violation of Title VII

       Ms. Arias has plead,    in the alternative,    should this Court

find that she was an at-will employee,        that she was wrongfully

discharged in violation of public policy.        "The tort of wrongful

discharge in violation of public policy is a limited exception to

the    general   rule   in the District of   Columbia that   an at-will

employee may be discharged at any time and for any reason, or for

no reason at all." Clay v. Howard Univ.,         128 F. Supp. 3d 22,   27

(D.D.C. 2015)     (internal citations omitted)

        To begin with, it is not clear from the pleadings that there

was any period of time in which Ms. Arias was actually terminated.

SAC~    14.



                                   -13-
       However, as already noted, even if there was a non-negligible

period of    time between the call discharging Ms.               Arias and her

reinstatement,     "in the District of Columbia . . . an employer may

discharge an at-will employee at any time and for any reason, or

for no reason at all." Adams v. George W. Cochran & Co., Inc., 597

A.2d 28, 30 (D.C. Cir. 1991). A "very narrow exception to the at-

will doctrine has been recognized in this jurisdiction when the

sole   reason     for   the   employee's     termination"      violates   public

policy. Lockhart v. Coastal Int'l Sec., Inc.,            5 F. Supp. 3d 101,

106 (D.D.C. 2013)       (internal citations omitted)

       However,   "a plaintiff may not seek relief under a theory of

wrongful discharge based upon a statute that carries its own remedy

for violation." Id. Ms. Arias' Second Amended Complaint cites Title

VII as the public policy that Defendant violated when it allegedly

terminated Ms. Arias. SAC       ~   74.

       It is well settled that Title VII affords both legal and

equitable remedies to plaintiffs who establish a cause of action.

Johnson v.   Ry. Exp. Agency,        Inc.,   421 U.S.   454,    459-60    (1975).

Therefore, Ms. Arias cannot bring a separate common law wrongful

termination claim based upon the public policy underlying Title

VII. Lockhart, 5 F. Supp. 3d at 106 and Count 4 must be dismissed.




                                      -14-
     F.         Count 6- Aggravated Assault

          Ms. Arias' aggravated assault claim cannot survive the Motion

to Dismiss because she brings the claim under D. C.                             Code    §   22-

404.01. SAC            ~    95-96. As Defendant points out, this is a criminal

statute, and there is no private right of action under a criminal

statute. See Def's Opp'n at 6-8; Central Bank of Denver v. First

Interstate Bank of Denver, 511 U.S. 164, 190 (1994)                            ("we refused

to     infer       a       private   right      of   action   from    'a    bare   criminal

statute.'"); Johnson v. D.C.                    Criminal Justice Act,         305 F. App'x

662, 662 (D.C. Cir. 2008); Kungle v. State Farm, Fire and Causality

Company,         48    F.    Supp.   3d 67,     76-77    (D.D.C.    2014)     ("there is no

private right of action under a criminal statute").

          To the extent that Ms. Arias asks this Court, using extremely

convoluted language, to accept this claim as one of civil assault,

Opp.      at     18-20,      it would still be barred by the D.C.                  Worker's

Compensation Act ("WCA"). D.C. Code Ann.                      §    32-1501 et.     ~;       See

Fonseca v.             Salminen,     896   F.    Supp.   2d 84,     86-87     (D.D.C.   2012)

(dismissing assault claim because the WCA was                              the sole remedy

available) .

          Ms.    Arias asserts that her aggravated assault claim would

fall      under the exception to the WCA for                       injuries    specifically

intended by the employer to be inflicted on the particular employee

who is injured.
                                                                       .
                              Pl.'s Reply at 19; See Grillo v. Nat'l Bank of

                                                 -15-
Washington, 540 A.2d 743, 744 (D.C. 1988). Courts have interpreted

this exception narrowly. "Specific intent by the employer will not

be found even where an employer has knowledge to a          'substantial

certainty' that an injury will result from an act. Doe v. United

States, 797 F. Supp. 2d 78, 83-84 (D.D.C. 2011).

      Even taken in the light most favorable to Ms. Arias, her bare

assertion that the Defendant "intentionally and recklessly" forced

her to work with dangerous chemicals without the required use of
           I

Personal Protective Equipment       ("PPE")   does not fall within the

narrow WCA exception. See Grillo, 540 A.2d at 753 ("The intentional

removal of a safety device or toleration of a dangerous condition

may or may not set the stage for an accidental injury later. But

      . it cannot be said, if such an injury does happen, that this

was deliberate infliction of harm")i Doe,        797 F. Supp. 2d at 83-

84.

      "When an employee is assaulted on the employer's premises or

otherwise in the course of employment,         the employee's resulting

injuries are presumed covered under the [WCA] unless the employer

presents substantial evidence that the assault was motivated by

something entirely personal to the employee and unrelated to the

employment."   Fonseca,   896 F.   Supp.   2d at 87.   Ms. Arias has not

provided any evidence of Marriott's motive to refuse to provide

PPE to its housekeeping staff. In the absence of any evidence of
                                   -16-
a personal motive unrelated to Ms. Arias' employment, this Court

must presume that the alleged assault "arose out of Plaintiff's

employment,   and     thus   is   covered   by   the   WCA."   Id.   (internal

citations omitted) .

      Count 6 must therefore be dismissed.

IV.   CONCLUSION

      For the foregoing reasons, Defendant's Motion to Dismiss is

granted in part and denied in part. An Order shall accompany this

Memorandum Opinion.6




November /:)_, 2016
                                            United States District Judge


Copies to: attorneys on record via ECF




6 The Court calls Plaintiff's counsel to read- and take heed for
the future- Defendant's footnote 1 at page 5 of its Reply. The
Court totally agrees with the language contained therein.
                               -17-
