                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


DANIEL M. COVINGTON,

               Plaintiff,
       v.
                                                       Civil Action No. 18-2727 (TJK)
HELIX ELECTRIC, INC.,

               Defendant.


                            MEMORANDUM OPINION AND ORDER

       Daniel Covington used to work for Helix Electric, Inc., as an electrician in the District of

Columbia. He asserts that he injured himself while on the job at a worksite here, but he filed a

workers’ compensation claim in Maryland, where he resides. After his injury, and before he

filed his claim, Helix suspended Covington from his position and never asked him back.

Covington now claims Helix fired him in retaliation for his pursuit of workers’ compensation

benefits. In this lawsuit, he brings a single common-law claim of wrongful discharge in

violation of public policy.

       Helix has moved to dismiss the complaint, arguing that Covington cannot bring his

wrongful discharge claim under District of Columbia law. In particular, it argues that Covington

has failed to identify a public policy, as expressed in a statute or regulation, that his termination

violated. And it further argues that the District of Columbia Court of Appeals has foreclosed the

specific type of wrongful discharge claim he brings here.

       The Court agrees that Covington cannot bring his claim under District of Columbia law.

But that does not end the matter; a choice-of-law analysis is required. The Court finds that under

the District of Columbia’s choice-of-law rules, Maryland law applies to Covington’s claim. And

under Maryland law, that claim may proceed. Accordingly, Helix’s motion to dismiss is denied.
       Factual and Procedural Background

       The facts, recounted here as alleged in the complaint, are uncomplicated. Daniel

Covington is a licensed electrician. ECF No. 1 (“Compl.”) ¶ 3. In 2016, he was employed by

Helix Electric, Inc., to work in the District of Columbia. Id.

       In November 2016, while on the job, Covington “tripped over debris in an unlit area,”

injuring his right foot, ankle, and leg. Id. ¶¶ 8–9, 11. Helix took him to receive medical

attention. Id. ¶ 11. Five days later, Helix suspended him “without providing a reason.” Id. ¶ 12.

Covington thereafter never “return[ed] to work for Helix.” Id. A week later, Covington filed a

claim with the Maryland Workers’ Compensation Commission based on the injuries he sustained

while working for Helix. Id. ¶ 14.

       Two years later, Covington commenced this action, bringing a single claim for the

common-law tort of wrongful discharge. See id. ¶¶ 7–17. He claims that “Helix terminated

[him] as a result of [his injury] on November 6, 2016[,] and [his] viable claim for workers’

compensation benefit[s].” Id. ¶ 15. That termination, Covington contends, “[was] a clear

violation of the public policies surrounding workers’ compensation benefits,” id. ¶ 17, and he

seeks compensatory and punitive damages, see id. at 4.

       Helix now moves to dismiss the complaint under Federal Rule of Civil Procedure

12(b)(6) for failure to state a claim. See ECF No. 3-1 (“MTD”). Covington has filed an

opposition, ECF No. 6 (“Opp’n”), and Helix a reply, ECF No. 7.

       Legal Standard

       A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a complaint.

Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). When ruling on such a motion, a court

must determine whether the complaint contains “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)


                                                  2
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court is generally limited to

“the facts alleged in the complaint, documents attached thereto or incorporated therein, and

matters of which it may take judicial notice.” Stewart v. Nat’l Educ. Ass’n, 471 F.3d 169, 173

(D.C. Cir. 2006). It must accept the factual allegations as true and construe them liberally,

granting the plaintiff “the benefit of all inferences that can be derived from the facts alleged,” but

it need not “accept legal conclusions cast in the form of factual allegations.” Kowal v. MCI

Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).

       Analysis

       Helix’s argument for dismissal is straightforward. Covington brings a single claim of

wrongful termination in violation of public policy—specifically, termination in retaliation for

filing a workers’ compensation claim in Maryland. As this action proceeds under the Court’s

diversity jurisdiction, see Compl. ¶ 5, the Court must apply state substantive law. See Hanna v.

Plumer, 380 U.S. 460, 465 (1965). Wrongful termination, Helix acknowledges, is a common-

law tort recognized in the District of Columbia. See MTD at 1 (citing Adams v. George W.

Cochran & Co., 597 A.2d 28 (D.C. 1991)). But to bring such a claim, Covington must identify

the source of the alleged public policy in a statute or regulation. Covington’s complaint, Helix

notes, cites no such source in District of Columbia law. Indeed, Covington only references

Maryland’s workers’ compensation statute. See Compl. ¶ 6. Therefore his claim must fail. See

MTD at 4–5.

       Moreover, Helix argues, even if Covington could rely on a Maryland public policy—i.e.

one expressed in Maryland’s workers’ compensation statute—for purposes of his tort claim

under District of Columbia law, the District of Columbia Court of Appeals forecloses claims for

wrongful discharge based on a statute that itself already provides a remedy for the party

aggrieved by its violation. See id. at 5 (citing Nolting v. Nat’l Capital Grp., Inc., 621 A.2d 1387


                                                  3
(D.C. 1993)). And Helix insists that Maryland’s workers’ compensation act provides such a

remedy. Id. at 5–6.

       Covington’s response is twofold. First, he argues that he can in fact bring a claim for

wrongful discharge under District of Columbia law based on Maryland’s workers’ compensation

statute. See Opp’n at 3. He contends that because he brought his claim in Maryland and that

Maryland’s workers’ compensation statute does not—despite Helix’s assertion to the contrary—

provide a civil remedy, the District of Columbia’s limitation on wrongful discharge claims where

the relevant statute already provides a remedy does not apply. See id. at 3–4. Second, and

alternatively, if he cannot bring a wrongful discharge claim under District of Columbia law, he

urges this Court to engage in a conflict-of-law analysis. Under Maryland law, he points out, an

individual has a common-law cause of action for wrongful discharge in retaliation for filing a

workers’ compensation claim. See id. at 5. That would present a conflict of laws, and

Covington argues that the applicable choice-of-law analysis requires the application of Maryland

law. See id. at 6–8.

       Both parties, at least in certain respects, miss the mark. But the Court agrees with

Covington that a choice-of-law analysis is required. That analysis leads to Maryland law, and,

ultimately, to the conclusion that Covington’s claim may proceed.

       “A federal court sitting in diversity must apply the choice-of-law rules of the forum

state—here, the District of Columbia.” In re APA Assessment Fee Litig., 766 F.3d 39, 51 (D.C.

Cir. 2014). When it appears that multiple states might have an interest in a particular dispute,

“the first step is to determine whether a ‘true conflict’ exists—that is, whether more than one

jurisdiction has a potential interest in having its law applied and, if so, whether the law of the

competing jurisdictions is different.” GEICO v. Fetisoff, 958 F.2d 1137, 1141 (D.C. Cir. 1992).




                                                  4
If such a conflict does indeed present, District of Columbia courts employ “a modified

‘governmental interests analysis’ which seeks to identify the jurisdiction with the ‘most

significant relationship’ to the dispute.” Washkoviak v. Student Loan Mktg. Ass’n, 900 A.2d 168,

180 (D.C. 2006) (quoting Moore v. Ronald Hsu Constr. Co., 576 A.2d 734, 737 (D.C. 1990)).

       Turning to that threshold question, the Court must determine whether the District of

Columbia’s and Maryland’s laws “present no conflict, a false conflict, or a true conflict.”

Barimany v. Urban Pace LLC, 73 A.3d 964, 967 (D.C. 2013). “A ‘no conflict’ situation arises

‘when the laws of the different jurisdictions are identical or would produce the identical result on

the facts presented.’” Id. (quoting USA Waste of Md., Inc. v. Love, 954 A.2d 1027, 1032 (D.C.

2008)). “A ‘false conflict’ situation arises ‘[w]hen the policy of one jurisdiction would be

advanced by application of its laws, and the policy of the other jurisdiction would not be

advanced by application of its laws.’” Id. (alteration in original) (quotation marks omitted)

(quoting District of Columbia v. Coleman, 667 A.2d 811, 816 (D.C. 1995)). And “[a] true

conflict arises when both states have an interest in applying their own laws to the facts of the

case” and the laws would lead to different outcomes. Id. (quoting Herbert v. District of

Columbia, 808 A.2d 776, 779 (D.C. 2002)).

       To begin with, the Court finds that the laws of the two jurisdictions at issue—Maryland

and the District of Columbia—do present a conflict, because they produce different results for

purposes of resolving Helix’s motion to dismiss. Under the laws of both jurisdictions, the

“employment at will doctrine” provides that “‘an employment contract of indefinite duration,

that is, at will, can be legally terminated at the pleasure of either party at any time’ without

giving rise to a cause of action for breach of contract.” Parks v. Alpharma, Inc., 25 A.3d 200,




                                                  5
208 (Md. 2011) (quoting Adler v. Am. Standard Corp., 432 A.2d 464, 467 (Md. 1981)); see also

Adams, 597 A.2d at 30 (same).

       Maryland courts, however, provide an exception and allow a terminated employee to

bring a common-law tort claim of wrongful discharge when he claims his termination violated

public policy. See Parks, 25 A.3d at 208–10. And they specifically recognize a claim for

wrongful discharge when the claimant alleges that he was fired in retaliation for filing a workers’

compensation claim, based on the “clear mandate of Maryland public policy” against such

retaliatory action expressed in Maryland’s workers’ compensation statute. Ewing v. Koppers

Co., 537 A.2d 1173, 1175 (Md. 1988); see also Md. Code Ann., Lab. & Empl. § 9-1105

(prohibiting retaliatory firing and imposing criminal penalty on employer for violation). As a

result, if the Court applies Maryland law, Covington has stated a claim, and Helix’s motion must

be denied.

       District of Columbia courts recognize a similar exception to the employment-at-will

doctrine when the claimant alleges that his termination violated public policy. See Carl v.

Children’s Hosp., 702 A.2d 159, 159–60 (D.C. 1997). And the District of Columbia’s workers’

compensation statute likewise prohibits retaliatory firing for seeking workers’ compensation

benefits. See D.C. Code § 32-1542. But that provision, in addition to declaring that conduct

unlawful, also provides a specific remedy to the employee, including “restor[ation] to his

employment . . . and compensat[ion] by his employer for any lost wages.” Id. Accordingly, the

District of Columbia Court of Appeals has refused to recognize a separate private right of action

under common law for this type of claim, explaining that no such cause of action lies where the

statutory provision “not only creates the wrong but also contains a specific remedy to




                                                 6
compensate the person suffering that wrong.” Nolting, 621 A.2d at 1389. And, as the Court

makes clear in further detail below, Covington’s claim proves no exception.

       Covington disputes this conclusion, arguing that District of Columbia law “recognizes a

judicial remedy for wrongful termination arising out of a retaliatory firing due to an employee’s

filing of a Workers’ Compensation Claim under [the] Maryland Workers’ Compensation Law.”

Opp’n at 3. His argument requires some untangling. It is not clear from Covington’s brief

whether he is asserting that he may bring a common-law claim for wrongful discharge under

District of Columbia law based on the public policy expressed by Maryland’s workers’

compensation statute, or whether he instead relies on the District of Columbia’s workers’

compensation statute as the source of the public policy but then looks to the Maryland law as the

applicable statute for determining whether he has a statutory remedy.

       Both articulations of his argument must fail, though. As for the former, when a state

court allows a plaintiff to bring a common-law claim for wrongful discharge in violation of

public policy, the relevant “public” is necessarily that of the forum state. And the declaration of

that policy can only come from bodies—whether state or federal—that govern that forum state.

See Carl, 702 A.2d at 164 (“[T]his court in the past has sought to make sure that any judicially

recognized public policy exception to the at-will doctrine is ‘carefully tethered’ to rights

officially recognized in statutes or regulations [enacted] by the elected representatives of the

people—the ‘public’ whose policy we are talking about.” (footnote omitted)); see also Gantt v.

Sentry Ins., 824 P.2d 680, 688 (Cal. 1992), overruled on other grounds by Green v. Ralee Eng’g

Co., 960 P.2d 1046, 1054 n.6 (1998) (“The employer is bound, at a minimum, to know the

fundamental public policies of the state and nation as expressed in their constitutions and

statutes.” (emphasis added)); Ewing, 537 A.2d at 1175 (explaining that “society as a whole has




                                                  7
an interest in ensuring that its laws and important public policies are not contravened” and

looking to the Maryland legislature for expressions of those policies). 1

       Indeed, the purpose of the exception is for state courts to “more fully effectuate” their

political counterparts’ policy determinations for the benefit of their constituents. Adams, 597

A.2d at 32 (quoting Petermann v. Int’l Brotherhood of Teamsters, 344 P.2d 25, 27 (Cal. 1959)).

Those courts have no mandate to look beyond those bodies and seek to give effect to the public

policies of their sister states, and this Court has encountered no instance, outside the conflict-of-

law context, in which a state court ventured to do so. At the very least, District of Columbia

courts have made no indication that they hold such an expansive view of the public policy

exception, and this Court will not step in to enlarge it on their behalf.

       The latter articulation of Covington’s argument presents a tougher question, but the Court

finds that it too does not withstand scrutiny. The District of Columbia’s workers’ compensation

statute condemns firing an employee in retaliation for seeking benefits under the act and imposes

criminal penalties for such conduct, see D.C. Code § 32-1542—a fairly clear expression of

public policy. But in Nolting, the Court of Appeals declined to recognize a private right of

action for those injured by such conduct, principally because the statute itself provided a remedy.

See 621 A.2d at 1389. The Court of Appeals did not make clear that it would have allowed such

a claim to proceed without the statutory remedy, although later decisions—particularly those in

the wake of the Court of Appeals’ decision to expand the scope of the public policy exception in



1
  As reflected above, in determining whether a cause lies for wrongful discharge, courts do also
look to federal sources of public policy. See, e.g., Liberatore v. Melville Corp., 168 F.3d 1326,
1331 (D.C. Cir. 1999). But the relevant public for those sources includes that of the particular
state whose law a court applies. And thus allowing a claim for wrongful discharge based on a
federal source of public policy does not present the same incongruency that allowing such a
claim based on another state’s law would pose.



                                                  8
Carl—suggest as much. See, e.g., Freas v. Archer Servs., Inc., 716 A.2d 998 (D.C. 1998)

(recognizing a claim for wrongful discharge in retaliation for filing a complaint alleging

unlawful wage deductions under District of Columbia law).

       But assuming that the Court of Appeals would allow that common-law claim to proceed

if the District of Columbia’s workers’ compensation statute did not provide its own civil remedy,

it does not necessarily follow that the cause of action would encompass the termination of an

individual, like Covington, who sought compensation under a different state’s statute or program.

The District of Columbia statute does not prohibit wrongfully terminating the employment of

such individuals. Rather, it prohibits terminating an employee because he has claimed or tried to

claim “compensation,” which the statute defines as “the money allowance payable to an

employee or to his dependents as provided for in this chapter,” D.C. Code § 32-1501(6)

(emphasis added), or “because he has testified or is about to testify in a proceeding under this

chapter.” Id. § 32-1542 (emphasis added).

       True, the Court of Appeals does not require an exact match between the statutory

mandate and the allegedly wrongful firing to recognize a wrongful discharge claim based on a

violation of public policy. See Fingerhut v. Children’s Nat’l Med. Ctr., 738 A.2d 799, 805–06

(D.C. 1999). And the conduct need not be “expressly prohibited.” Carl, 702 A.2d at 165 (Terry,

J., concurring). But the Court of Appeals has repeatedly cautioned that the public-policy

exception is a “very narrow” one. Id. at 160 (quoting Adams, 597 A.2d at 34). There must be a

“close fit” between the policy declared by the statute and the conduct at issue, id. at 164,

“carefully tethered to rights officially recognized in statutes or regulations by the elected

representatives of the people—the ‘public’ whose policy we are talking about,” id. (quotation

marks and footnote omitted) (quoting Gantt, 824 P.2d at 688).




                                                  9
       Given that direction, this Court is hard pressed to recognize the exception that Covington

apparently seeks here. Nothing in the District of Columbia’s retaliation provision proves with

that level of clarity that the District of Columbia pursues a policy of protecting employees from

retaliatory firing when they file a workers’ compensation claim with another state’s program.

And that coheres, in particular, with the Court’s earlier conclusion that the relevant “public

policy” when confronted with a wrongful discharge claim is that of the forum state. The clear

public policy that flows from the statute is an effort to encourage employees to seek the benefits

they are entitled to under District of Columbia law. It would be beyond the purview of this

Court to assume that the District of Columbia’s legislature would also encourage employees,

even those who work in the District, to seek benefits under a scheme that it did not enact and

does not administer.

       The upshot, then, is that the Court would reach a different result if it determined that

District of Columbia law governs Covington’s claim, as opposed to Maryland law. But that does

not mean that a “true conflict” exists. In fact, as the Court’s discussion of the relevant public

policies in play here makes clear, these circumstances present a quintessential “false conflict.”

       As noted above, a false conflict arises “[w]hen the policy of one jurisdiction would be

advanced by application of its law, and the policy of the other jurisdiction would not be

advanced by application of its law.” 2 Coleman, 667 A.2d at 816 (brackets omitted) (quoting



2
  Some courts have used “false conflict” as a blanket term encompassing both when the outcome
would not differ if either jurisdiction’s laws were applied as well as when only one of those
jurisdictions’ interests would actually be advanced by application of its laws. See, e.g., Beach
TV Props., Inc. v. Solomon, 306 F. Supp. 3d 70, 92 (D.D.C. 2018) (defining a “false conflict” to
include “when either (1) the laws of the interested states are the same; (2) when those laws,
though different, produce the same result when applied to the facts at issue; or (3) when the
policies of one state would be advanced by the application of its laws and the policies of the
states whose laws are claimed to be in conflict would not be advanced by application of their



                                                 10
Kaiser-Georgetown Comty. Health Plan. Inc. v. Stutsman, 491 A.2d 502, 509 (D.C. 1985)). In

that circumstance, “the law of the interested state prevails.” Biscoe v. Arlington Cty., 738 F.2d

1352, 1360 (D.C. Cir. 1984).

       The Court of Appeals’ decision in Coleman is instructive on this point. In that case, the

court confronted whether a detective for the District of Columbia’s Metropolitan Police

Department, sued for alleged assault and battery that happened in Maryland but based on his

purported violation of a District of Columbia statute and police regulations, could raise the

affirmative defenses of contributory negligence and assumption of risk. See 667 A.2d at 814,

817. District of Columbia courts had declined to recognize the defenses, explaining that doing

so would undermine the “public policy behind [the statute and police regulations] . . . ‘to

promote the safety of citizens by deterring police use of excessive force.’” Id. at 817 (quoting

District of Columbia v. Peters, 527 A.2d 1269, 1274 (D.C. 1987)). But the Court of Appeals in

Coleman determined that that policy was specific to ensuring the safety of citizens “within the

District itself,” and thus that the District of Columbia did not similarly have a “compelling

interest” in ensuring that District officers who committed negligent violations of District

regulations in a different state were held liable. Id. Rather, Maryland had the “primary

obligations and duties with respect to public safety in Maryland,” and so the Court of Appeals

concluded that Maryland law should apply. Id at 817–18.; see also Williams v. Rawlings Truck

Line, Inc., 357 F.2d 581, 585–86 (D.C. Cir. 1965) (finding a false conflict between New York’s

and the District of Columbia’s vehicle ownership rules because the District’s interests were not




law” (quoting Long v. Sears Roebuck & Co., 877 F. Supp. 8, 11 (D.D.C. 1995)). Here, the Court
uses the term only to refer to the latter circumstance, consistent with recent usage by the District
of Columbia Court of Appeals. See Barimany, 73 A.3d at 967.



                                                 11
advanced by applying its rules to the negligence suit at issue); Thuneibat v. Syrian Arab

Republic, 167 F. Supp. 3d 22, 43–44 (D.D.C. 2016) (applying Coleman and finding a “false

conflict” between Jordanian law and District of Columbia law because the District had no

interest in limiting the liability of tortfeasors who commit torts outside the District).

       Here, the District of Columbia’s interests would not be advanced by the application of its

laws to Covington’s unlawful discharge claim. Nothing in the District’s anti-retaliation

provision suggests that the District sought to extend protections to individuals who have sought

benefits in another state. Rather, the provision appears intended to encourage employees to seek

benefits specifically under the District’s program. Indeed, as noted above, the anti-retaliation

provision covers only those individuals who seek compensation under the act, and thus it does

not even prohibit the alleged conduct by Helix. The Court can hardly conclude, then, that the

District of Columbia has a “compelling interest” in whether Covington may proceed with his

claim seeking damages for that alleged conduct—and, in particular, an interest in the result the

Court would reach if it applied District of Columbia law: that he may not. Coleman, 667 A.2d at

817. Covington’s claim, based on his seeking compensation with the Maryland Workers’

Compensation Commission, simply does not implicate the District’s anti-retaliation provision

and its attendant policy aims.

       Maryland, on the other hand, has a strong interest in this dispute. Through the anti-

retaliation provision, the Maryland legislature “expressed the public policy of [the] State—an

employee may not be discharged for filing a compensation claim.” Kern v. S. Baltimore Gen.

Hosp., 504 A.2d 1154, 1157 (Md. 1986). And Covington alleges that Helix did just that—

terminated him because he filed a compensation claim under the Maryland act. But while

Maryland’s anti-retaliation provision imposes penalties for such conduct, it does not provide a




                                                  12
civil remedy for the injured employee. The very purpose of recognizing a tort for wrongful

discharge in contravention of public policy was to avoid “the prospect of a remediless

employee.” Makovi v. Sherwin-Williams Co., 561 A.2d 179, 183 (Md. 1989). Applying

Maryland law to Covington’s claim—both Maryland’s common law and the relevant statutory

sources of public policy—would vindicate that interest by allowing Covington to seek a remedy

for his alleged wrong.

       At bottom, the District of Columbia’s interests would not be advanced by the application

of its laws to the issue of whether Covington may pursue a claim for wrongful discharge under

these circumstances, while Maryland’s would. The Court must therefore apply Maryland law.

See Biscoe, 738 F.2d at 1360. As discussed above, under Maryland law, Covington’s claim is

actionable, and the Court will therefore deny Helix’s motion to dismiss.

       Conclusion and Order

       For all the above reasons, Helix’s Motion to Dismiss, ECF No. 3, is DENIED.


       SO ORDERED.

                                                            /s/ Timothy J. Kelly
                                                            TIMOTHY J. KELLY
                                                            United States District Judge

Date: September 7, 2019




                                               13
