1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ANGELA MCCASKILL, Plaintiff,

v. Civil Action No. 13-1498 (JEB) GALLAUDET UNIVERSITY, Defendant.

MEMORANDUM OPINION As Gallaudet University’s Chief Diversity Officer, Plaintiff Angela McCaskill was tasked with promoting a diverse and inclusive colleg e community. In Oc tober 2012, several of McCaskill’s coworkers learned that she had si gned a petition to place Maryland’s Proposition 6 – a state constitutional amendment that would ha ve banned same-sex marri age – on the ballot. When this fact became more widely known on campus, Gallaudet administ rators decided that McCaskill’s ability to advocate for her const ituents – in particular the university’s gay community – had been compromised. As a result of that decision – or, as Plaintiff tells it, because of her race, religion, marital status, sexual orientation, and political affiliation – Gallaudet placed her on administrative leave and, ultimately, demoted her. When the university failed to restore McCaskill to her position af ter the furor had died down, she brought this diversity action alleging that the university had violated the D.C. Human Rights Act’s prohibitions against various form s of discrimination and had inte ntionally or negligently caused her emotional distress. She asserts, moreover, th at after she signed the pe tition, the university – acting through two of its employees – defame d her and placed her in a false light.2 Gallaudet has now responded by filing two Motions to Dismiss. The first argues that those two employees, whom Plaintiff voluntarily dismissed by filing an Amended Complaint, are indispensable parties; as their joinder would de stroy diversity, the motion asserts, the suit cannot proceed. The second contends that McCaskill has not sufficiently pled facts to support any of her claims. Convinced by Defendant’s substa ntive arguments, the Court will grant its second Motion and dismiss this case.
I. Background According to Plaintiff’s Complaint, which th e Court must presume to be true for the purpose of these Motions, McCaskill was employed at Gallaudet at all times relevant to this case, and at least since 2012. See Compl ., ¶ 7. As Deputy to the Presid ent of the university, Associate Provost for Diversity and Inclus ion, and Chief Diversity Offi cer, she was responsible for “foster[ing] and advanc[ing] a strategic and integrated approach to diversity priorities in all aspects of University life” and “establishing diversity priorities and enforc[ing] guidelines for the University that ensure[] equity, inclus ion, and social just ice.” Id., ¶ 8. On October 3, 2012, McCaskill received an e-mail from a co-worker, Dr. Martina Bienvenu, in which Bienvenu asked for a meeting to discuss an issue related to same-sex marriage in Maryland. Id., ¶ 9. At the meeting, Pl aintiff alleges, Bienvenu “confronted [her] in a very hostile manner” regarding Plaintiff’s deci sion to sign a petition to place Proposition 6 on the ballot. Id., ¶ 10. Plaintiff responded, “Yes, I did sign the petition. . . . I signed the petition at church during a [worship] service last July.” Id., ¶ 11. At that point, McCaskill complains, Bienvenu “responded in a very animated manner,” exclaiming, “I am really disgusted with you!” and asking, “Are you still a member of that church ?” before “criticiz[ing] Plaintiff’s Christian faith and belittl[ing] her religi ous beliefs.” Id., ¶ 13. The inte raction concluded with Bienvenu’s3 telling Plaintiff that the names and addresses of the people who signed the petition were a matter of public record, which Plaintiff took to imply “t hat harm could come to her home at the behest of Bienvenu.” Id., ¶ 14. Plaintiff believes, moreover, that Bienvenu did not leave things there. Instead, she alleges, Bienvenu and her partner, Kendra Smit h, spoke anonymously to PlanetDeafQueer.com, telling the web site, among other things, that Pl aintiff had signed an “anti-gay” marriage petition and that she supported overturning Maryland’s same-sex-marriage legislation. See id., ¶¶ 99,
110. “[G]reatly disturbed emotionally,” id., ¶ 18, Plaintiff took the matter to the Gallaudet administration. Although the President of the university expressed “shock and dismay” at Bienvenu’s actions, id., ¶ 19, no investigation wa s forthcoming, Bienvenu was not punished, see id., ¶¶ 21-25, and Plaintiff’s mistreatment at the hands of the Gallaudet faculty continued. See id., ¶ 57. The university placed her on “administ rative leave,” see id., ¶ 41, and ultimately demoted her and cut her office’s budget by 32 per cent. See id., ¶¶ 52, 55. Despite several requests for redress, Plaintiff never got her old job back. Feeling she had no other options, McCask ill filed this suit in September of 2013, asserting causes of action against Gallaudet for discriminatory treatment, disparate impact, retaliation, maintenance of a hos tile work environment, and ai ding and abetting discrimination, all in violation of the DCHRA (C ount I); intentional infliction of emotional distress (Count V); and negligence (Count VI); and against both the university and Bienvenu and Smith for defamation and false-light invasi on of privacy (Counts II-IV). In December, Plaintiff voluntarily dismissed Bienvenu and Smith, whose presence woul d have defeated diversity . See Mot. for Leave to File Amended Complaint, ¶ 1. Gallaud et has now moved to dismiss on the grounds that4 the two individual defendants are necessary part ies under the Federal Rules of Civil Procedure and that Plaintiff has failed to ad equately plead any of her claims.
II. Legal Standard Federal Rule of Civil Procedure 12(b)(6) pr ovides for dismissal of an action where a complaint fails “to state a claim upon which relie f can be granted.” In evaluating Defendant’s Motion to Dismiss, the Court must “treat the compla int’s factual allegations as true . . . and must grant plaintiff ‘the benefit of all inferences that can be derived fr om 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 605, 608 (D.C. Cir. 1979)) (internal citation omitted); see al so Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). The notice-plea ding rules are “not meant to impose a great burden upon a plainti ff,” Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005), and she must thus be granted every fa vorable inference that may be drawn from her allegations of fact. See Sparrow, 216 F.3d at 1114. “[D]etailed factual al legations” are not necessary to withstand a Rule 12(b)(6) motion, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), but “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 (2009) (quoting Twom bly, 550 U.S. at 570). Plaintiffs 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” or an infe rence unsupported by the facts set forth in the Complaint. Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)) (internal quotation marks omitted). Although a plaintiff may survive a 12(b)(6) motion even if “recove ry is very remote and unlikely,” Twombly, 550 U.S. at 5565 (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)), the facts alleged in the complaint “must be enough to raise a right to relief above the speculative level.” Id. at 555. Federal Rule of Civil Procedure 12(b)(7) also outlines a standard for dismissal, in this case for “failure to join a [necessary] party unde r Rule 19.” The burden is on the defendant to show that joinder is require d, see Citadel Inv. Grp., LLC v. Citadel Capital Co., 699 F. Supp. 2d 303, 317 (D.D.C. 2010), and courts have generally b een reluctant to grant Rule 12(b)(7) motions, finding that “dismissal is warranted only when the defect is serious and ca nnot be cured.” Direct Supply, Inc. v. Specialty Hosp. of Amer., LL C, 878 F. Supp. 2d 13, 23 (D.D.C. 2012) (citation omitted). As with Rule 12(b)(6) motions, a cour t must accept the allegations contained in the plaintiff’s complaint as true fo r the purpose of the Rule 12(b)(7 ) inquiry. See 16th & K Hotel, LP v. Commonwealth Land Title Ins. C o., 276 F.R.D. 8, 12 (D.D.C. 2011).
III. Analysis Defendant argues that the Court must dismiss Plaintiff’s suit in its entirety. Gallaudet begins by addressing the voluntary dismissal of former defendants Bienvenu and Smith, contending that because the two are necessary parties, the litigation may not proceed without them. If the Court reaches the merits, moreover, the university asserts that Plaintiff’s claims all fall short. The Court will addres s each of these arguments in turn.
A. Indispensable Parties Gallaudet first posits that this suit must be di smissed because Plaintiff has failed to join all indispensable parties – na mely, Bienvenu and Smith. Fede ral Rule 19 “establishes [the] procedure for determining whether an action must be dismissed because of the absence of a party needed for a just adjudication.” Cherokee Nation of Okla. v. Babbitt, 117 F.3d 1489, 1495-966 (D.C. Cir. 1997). Rule 19 requires joinder of “[a] person who is subject to service of process and whose joinder will not deprive the cour t of subject-matter jurisdiction” if: (A) in that person’s absence, the court cannot accord complete relief among existing parties; or (B ) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s abse nce may: (i) as a practical matter impair or impede the person’s abilit y to protect the interest; or (ii) leave an existing party subject to a substantial ri sk of incurring double, multiple, or otherwise incons istent obligations because of the interest. If the Court finds that a “required” person has no t been joined, it “must or der that the person be made a party.” Fed. R. Civ. P. 19(a)(2). If no necessary party has been excluded, the inquiry ends there and the case may proceed. No doubt some Rule 19 cases “can be complex,” Republic of Philippines v. Pimentel, 553 U.S. 851, 863 (2008), but this one is not. Thatis because neither of Rule 19’s textual hooks applies. More specifically, Defendant does not argue that the Court will be unable to “accord complete relief among existing parties” – name ly, McCaskill and Gallau det – without joining Bienvenu and Smith. Those two prospective defe ndants, moreover, do not “claim[] an interest relating to the subject of the ac tion.” As a result, the Court ne ed proceed no further; it can conclude at this juncture th at neither Bienvenu nor Smith is a required party, and so their exclusion is not a prope r basis for dismissal.
B. D.C. Human Rights Act Claims Having cleared that hurdle, the Court arrives atthe heart of Plaintiff’s case: employment discrimination. The DCHRA pros cribes discriminatory employ ment practices based on an employee’s “race, color, religion, national origin, sex, age, . . . or poli tical affiliation,” among other things. D.C. Code § 2-1402.11(a)(1). In Count I of her Amended Complaint, Plaintiff alleges that Gallaudet violated the DCHRA by: (1) suspending her and subsequently demoting7 her in a discriminatory manner; (2) retaliating against her for engaging in protected activity – namely, signing the petition suppor ting Proposition 6; (3) promoti ng a hostile work environment; (4) aiding and abetting discriminatory actions; an d (5) intentionally and maliciously disciplining her in violation of the statute’s “effects clau se.” See Am. Compl., ¶¶ 62-96. None of those claims, however, can withstand the present Motion to Dismiss.
1. Discriminatory Treatment The DCHRA makes it illegal to “discriminate ag ainst any individual, with respect to . . . compensation, terms, conditions, or privileges of employment, including promotion” and to “limit, segregate, or classify . . . employees in any way which would deprive or tend to deprive any individual of employment opportunities, or otherwise advers ely affect his status as an employee” on the basis of membership in a protected class. D.C. Code § 2-1402.11(a)(1). To adequately plead discriminatory treatment under the DCHRA, theref ore, Plaintiff must establish that: (1) she is a member of a protected class; (2) she suffered an adverse employment action; and (3) the unfavorable action gives rise to an in ference of discrimination. See Stella v. Mineta, 284 F.3d 135, 145 (D.C. Cir. 2002). McCaskill here alleges discriminatory treatm ent on the basis of a remarkable number of grounds: race, religion, sexual orientation, marita l status, and political affiliation. See Am. Compl., ¶¶ 62-77. While she correctly asserts that the university’s deci sions to place her on administrative leave and, eventually, to demote her constitute the requ isite adverse action, her stumbling block arrives at step thre e. To satisfy that third requirement, she must plead facts that show that the adverse action was taken because of her protected status – th at is, that the action “was not attributable to [a] common legitima te reason[].” George v. Leavitt, 407 F.3d 405, 412 (D.C. Cir. 2005). Mere specula tion as to the employer’s motiv ation cannot establish a prima8 facie case of discrimination. See Powell v. Washington Metro. Transit Auth., 238 F. Supp. 2d 160, 165 (D.D.C. 2002). McCaskill, however, does not alle ge any facts here that coul d allow a jury to conclude that Gallaudet took prohibited actions because of her membership in any of her claimed protected groups. This omission is fatal to he r discrimination claim. See Ass’n of Flight Attendants v. U.S. Dep’t of Transp., 564 F.3d 462, 465 (D.C. Cir. 2009) (plaintiff’s claim of discrimination failed because it contained no more than conclusory allegations of discrimination). With regard to religion, Plaintiff’s Amende d Complaint merely asserts that she was placed on leave “for, among other th ings, executing a legislative in itiative . . . while attending a religious service in her Christian church” and that she is a member of a protected class “because of her . . . religion as a Christ ian of the African Methodist Epis copalian denomination.” Id., ¶¶ 64, 66. Even if Gallaudet knew of her religious convictions or wa s aware that those convictions motivated her to sign the petition – a fact that remains hazy on the face of the Complaint – there is no factual allegation that he r religion somehow prompted her suspension or demotion. As a result, although it may be true that McCaskill si gned the petition because she is a Christian – and that Bienvenu approached her for the same reason – the university cannot be guilty of discrimination on that basis. The same is true of Plaintiff’s claims of discrimination based on race, marital status, and sexual orientation. Plaintiff does allege that an unidentified employee of Gallaudet wrote her a nasty letter after it became public that she had signed the petition, see Am. Compl., ¶ 59, and in her Opposition she asserts that th is letter included a racial epit het, see Opp. at 37, but she does nothing to tie this incident to th e university’s personnel decisions or even to link the views in the9 anonymous letter to Gallaudet administrators at all. Nor does she make any coherent argument that her marital status or sexual orientation, as opposed to her views about other people’s home lives, prompted the university to act. The best Pl aintiff can do on this front is to allege that she may, at some point, have been called “anti-gay” by one of her co-workers. See Am. Compl., ¶ 67. This, of course, does not allow the Court to infer that the university suspended her because of her own marital status or sexual orientation. If McCaskill is to prevail on her intenti onal-discrimination claim, then, she must convince the Court that Gallaudet discriminated ag ainst her on the basis of political affiliation. Such an argument might initially appear promisin g since McCaskill’s political stance on an issue generated the controversy. Yet, the DCHRA does not sweep so broadly. By the statute’s own terms, “‘political affiliation’ means the state of belonging to or endorsing any political party.” D.C. Code § 2-1401.02(25). The D.C. Court of Appeals, moreover, has read the statute narrowly. In Blodgett v. University Club, 930 A.2d 210 (D.C. 2007), the plaintiff had been expelled from a private club in part for his involvement with a right-wing group called the National Alliance. Those activities earned the club some negative publicit y, so it terminated his membership. Even though the court allowed th at Blodgett may have been dismissed “based on his affiliation with the National Alliance,” id. at 221, it observed that a plaintiff cannot satisfy the statute’s definition of “political affiliation” by asserting discri mination for “political reasons” or “politics generally,” id. at 221-22, and it found no evidence that Blodgett’s group was a political party “under any ordinary sense and with the meaning commonly attr ibuted to that term.” Id. (quotation marks omitted). After al l, the D.C. and U.S. Codes treat as political parties only those groups that nominate candidates for recognized public elections. See id. at 221 n.10 (citing D.C.10 Code § 1-1101.01(10) and 2 U.S.C. § 431(16)). Blodgett did not argue that the National Alliance did any such thing, so the cour t denied his political-affiliation claim. McCaskill’s claim is even weaker than Bl odgett’s. She alleges that the university discriminated against her because of her actions – namely, that she signed the Maryland petition – and not because of her membership in any gr oup, let alone any political party. She makes no attempt, moreover, to distinguish her signing a petition from the “general” politicking discussed in Blodgett. The Court, accordingly, will dismis s Plaintiff’s intentional-discrimination claim.
2. Retaliation Next, Plaintiff alleges that Ga llaudet suspended and demoted her in retaliation for signing the petition. The DCHRA prohib its an employer from retaliating against an employee “on account of having exercised or enjoyed . . . any ri ght granted or protecte d under this chapter.” D.C. Code, § 2-1402.61(a). “The elements of a retaliation claim under the DCHRA are the same as those under the federal employment discrimi nation laws.” McCain v. CCA of Tenn., Inc., 254 F. Supp. 2d 115, 124 (D.D.C. 2003). In other words, to prove unlawful retaliation, a plaintiff must show that: “(1) she engage d in [a statutorily protected activity]; (2) the employer took an adverse employment action against her; and (3) the adverse action was causally related to the exercise of her rights.” Holcomb v. Powell, 433 F.3d 889, 901-02 (D.C. Cir. 2006). It is difficult to make out precisely what pr otected activity Plaintiff thinks prompted her suspension and demotion. In her Complaint, she alleges that Defendant violated the DCHRA by retaliating against her “on account of her exer cising or enjoying her right to be free from unlawful discrimination.” Am. Compl., ¶ 78. At fi rst, one might think Plaintiff is claiming that she faced retaliation for complaining that she ha d been discriminated ag ainst. In the next paragraph of her Complaint, however, McCaskill alleges that the “protected activity” in which11 she was engaged was “signing [the] legislative in itiative” and “expressing herself as a married, heterosexual, African-American, Christian wo man/voter, who, through prayer and worship, searched for a means to enlighten Maryland voters on the issue of same-sex marriage in such a way to foster discourse, tolerance, and resp ect for the democratic process.” Id., ¶ 7. This, quite simply, is not the sort of “prote cted activity” contemplated by the statute. Although the plain language of the DCHRA is of limited use, courts have held that the law protects employees who bring or threaten to bring a discriminati on claim against their employer. See, e.g., Baloch v. Kempthorne, 550 F.3d 1191, 1198 (D.C. Cir. 2008); Tsehaye v. William C. Smith & Co., 402 F. Supp. 2d 185, 197 (D.D.C. 2005) (citing Jones v. Washington Metro. Transit Auth., 205 F.3d 428, 433 (D.C. Cir. 2000)). Plaintiff points to no authority – and the Court has found none – that supports the notion th at general political activity, political or religious speech, or prayer constitutes protecte d activity under the DCHRA’s retaliation provision. See Beckwith v. Career Blazer s Learning Ctr., 946 F. Supp. 1035, 1042 (D.D.C. 1996) (concluding that plaintiff’s participati on in Million Man Marc h was not statutorily protected activity for purpos e of retaliation claim). Instead, it seems Plaintiff has attempted to shoehorn a First Amendment argument into her Complaint against Gallaudet by dressing it up as an employment-discrimination allegation. While a citizen has an unfettered right to pe tition her government, such a constitutional claim aimed at Gallaudet cannot succeed here, as the university and its employees are private parties not subject to the First Amendment’s strictur es. See Jackson v. Metro. Edison Co., 419 U.S. 345, 352 (1974); see also Donohoe v. Wyatt, 546 F. Supp. 753, 757 (D.D.C. 1982) (private employer could not be liable under First Amendm ent for firing employee in retaliation for his12 sending letter to government official). As a resu lt, Plaintiff’s retaliation claim, as it appears, cannot succeed.
3. Hostile Work Environment Plaintiff also alleges that she was subjected to a hostile work environment because of her many protected characteristics. To prevail on such a claim, a plaintiff mustdemonstrate that she faced “discriminatory intimidation, ridicule, a nd insult” that was “sufficiently severe or pervasive to alter the conditions of the victim ’s employment and create an abusive working environment.’” Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 577 (D.C. Cir. 2013) (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)). That discrimination, moreover, must have been based on her membership in a protecte d class. Kelley v. Billington, 370 F. Supp. 2d 151, 156 (D.D.C. 2005) (citing Jone s v. Billington, 12 F. Supp. 2d 1, 11 (D.D.C. 1997), aff’d, 1998 WL 389101 (D.C. Cir. June 30, 1998)). In evaluating a hostile-work-environment clai m, the Court “looks to the totality of the circumstances, including the frequency of th e discriminatory conduct, its severity, its offensiveness, and whether it interferes with an employee’s work performance.” Baloch, 550 F.3d at 1201 (citing Faragher v. City of Bo ca Raton, 524 U.S. 775, 787-88 (1998)). “The Supreme Court has made it clear that ‘conduct must be extreme to amount to a change in the terms and conditions of employment.’” Leavitt, 407 F.3d at 416 (quoting Faragher, 524 U.S. at 788). By adhering to these standards, the Court thereby “ensure[s] that [employmentdiscrimination law] does not become a general civili ty code” that involves c ourts in policing “the ordinary tribulations of the workplace.” Faragher, 524 U.S. at 788 (citation and internal quotation marks omitted).13 Although the Court must refrain from weighing the credibility of the evidence at this stage, it finds that the limited f acts on the record, even as Plaintiff describes them, cannot meet the “demanding standard” for a hostile-work-en vironment claim under the DCHRA. Baird v. Gotbaum, 662 F.3d 1246, 1251 (D.C. Cir. 2011). McCaskill bases her theory on the following evidence:

 “Bienvenu confronted Plaintiff in a very hostile manner about whether Plaintiff signed a Petition to place Proposition 6 . . . on the ballot,” Am. Compl., ¶ 10;

 Bienvenu exclaimed: “I am really disgus ted with you!” and “cri ticized Plaintiff’s Christian faith and belittled he r religious beliefs,” id., ¶ 13;

 Bienvenu “sternly reminded Plaintiff that the names and addresses of the people who signed the petition is a matter of public record,” id., ¶ 14, with “an aggressive demeanor, a hostile tone, a scowl on her face, and overly dramatic signing,” id., ¶ 15;

 “Plaintiff was further forced to endure[] verbal abuse, condescension, and castigation . . . during Faculty Senate meetings,” id., ¶ 57; and

 “Plaintiff received [a] threatening letter from [a] faculty . . . member” (possibly using a racial epithet, though that allegation appears for the first time in Plaintiff’s Opposition), to which the university president “responded with . . . hubris.” Id., ¶ 59. These allegations simply do not support Plaint iff's contention that she was subjected to conduct “sufficiently severe or pe rvasive to alter the conditions of [her] employment and create an abusive working environment.” Harris, 510 U.S. at 21. The indignities that are described in the Amended Complaint – one confrontation with a coworker, unspecified “abuse” at meetings, and one threatening letter from a faculty member (about which nothing more is alleged) – simply do not satisfy that standard. See, e.g., L eavitt, 407 F.3d at 408, 416–17 (statements by three14 employees over six-month period th at plaintiff should “go back wh ere she came from,” separate acts of yelling, and hostility did not rise to level of severity necessary to find hostile work environment); Badibanga v. Howard Uni v. Hosp., 679 F. Supp. 2d 99, 104 (D.D.C. 2010) (dismissing hostile-work-environment claim where pl aintiff was placed on administrative leave due to false accusation, his accent was criticized, he was told he was easy to replace with an American, and he was told that his superv isor would not hire other Africans). Even if the treatment to which Plaintiff wa s subjected could plausibly occasion a hostilework-environment claim, moreover, she has offere d no facts to support the contention that such alleged mistreatment was due to her membership in any protected class. Indeed, although McCaskill asserts that she was mistreated by he r colleagues and her empl oyer “because of her religious expression,” Opp. at 15, nothing supports that claim. All we learn from Plaintiff’s Complaint is that Bienvenu asked her, “Are you still a member of that church?” Am. Compl., ¶ 13. In her Complaint, McCaskill also alleges th at the harassment and discrimination was based in part upon her sexual orientati on, “traditional marriage,” and “r ace, as an African American attending an African Methodist Episcopalian church.” Am. Co mpl., ¶ 25. Any mistreatment McCaskill suffered, though, was not based upon her se xual orientation, her marital status, or her race. If the mistreatment occurred, it was based on her decision to sign a political petition. To the extent Plaintiff is arguing that she faced a hostile work environment on account of her political affiliation or her “right to participate in the political process fr ee of voter intimidation,” Am. Compl., ¶ 25, that claim fails for the reasons described with respect to discriminatory
treatment. See Section III.A.1, supra . Nothing in the Complaint ties Plaintiff’s alleged mistreatment to anything but her political expr ession, which is not protected under the DCHRA. The Court will thus dismiss her host ile-work-environment claim as well.15 4. Aiding and Abetting Plaintiff next attempts to hang her hat on the DCHRA’s “aiding-and-abetting” clause. McCaskill, however, misconstrues the thrust of that provision, which makes it “an unlawful discriminatory practice for any person to aid, abet , invite, compel, or coerce the doing of any of the acts forbidden under th e provision of this chapter or to attempt to do so.” D.C. Code § 2- 1402.62. The aiding-and-abetting clause is mean t to prohibit an individual from assisting another person in discriminating, retaliating, or cr eating a hostile work environment. See, e.g., King v. Triser Salons, LLC, 815 F. Supp. 2d 328, 331 (D.D.C. 2011) (“Courts have held individuals liable under the DC HRA . . . when they aided or abetted in the discriminatory conduct of others . . . [or] when it was alleged that they knew or should have known about the discriminatory conduct and failed to stop it.”). Ho w, precisely, that clause would apply to the facts at hand is unclear. Gallaude t, after all, is itself the only pa rty accused of discriminating and retaliating against Plaintiff, so it could not plausibly have ai ded and abetted itself in those violations. Even if Plaintiff could make out the claim that th e university aided and abetted its employees – say, Bienvenu – in creating a hostile work environment, the Court has already concluded that no actionable hosti lity took place here. In these circumstances, then, Plaintiff’s aiding-and-abetting claim also fails.
5. Effects Clause Plaintiff’s final attempt to invoke the protec tion of the DCHRA draws on the statute’s socalled “effects clause.” That provision prohibi ts “[a]ny practice whic h has the effect or consequence of violating any of the provisions of this chapter.” D.C. Code § 2-1402.68. Under the effects clause, “despite the absence of any inte ntion to discriminate, pr actices are unlawful if they bear disproportionately on a protected cla ss and are not independent ly justified for some16 nondiscriminatory reason.” Gay Rights Coalition of Georgetown Univ. Law Ctr. v. Georgetown Univ., 536 A.2d 1, 29 (D.C. 1987); 2922 Sherman Ave. Tenants’ Ass’n v. Dist rict of Columbia, 444 F.3d 673, 685 (D.C. Cir. 2006) (adopting D.C. C ourt of Appeals’ in terpretation of the clause). Plaintiff’s claim, however, does not fall within the clause’s ambit. The DCHRA’s effects clause is modeled on the federa l disparate-impact doctrine that arose out of Griggs v. Duke Power Co., 401 U.S. 424 (1971). See Gay Rights Coalition, 536 A.2d at 29. That doctrine prohibits “practices” or “policies” that have th e effect of discriminating against a protected group of people. Indeed, “[a] prima facie case of disparate impact requires the identification of a specific employment practice that, while facially neutral, nonetheless ha d a disproportionate adverse effect on a protected class of indi viduals.” Anderson v. Duncan, No. 06-1565, 2013 WL 5429274, at *9 (D.D.C. Sept. 30, 2013) (emphasis adde d). Such a claim, moreover, requires a demonstration of causation through “statistical ev idence of a kind and degree sufficient to show that the practice in question . . . caused” indi viduals to suffer the offending adverse impact “because of their membership in a protected group.” Watson v. Fort Worth Bank & Trust , 487 U.S. 977, 994 (1988). As a result, one-time d ecisions that affect only one person are not typically actionable. Cf. Anders on, 2013 WL 5429274, at *9 (citing Watson , 487 U.S. 977 at 994). This limitation makes sense because if di sparate-impact claims were available based on the impact of a single incident on a single pers on, anyone could convert a failed discriminatoryintent claim into one for disparat e impact. Neither the authors of Griggs nor the framers of the DCHRA intended such a broad prohibition that would, in effect, swallow the discriminatoryintent rule whole. Plaintiff’s effects- clause claim is therefore dismissed.
C. Common-Law Claims17 1. Defamation and False Light Plaintiff next asserts that Gallaude t should be held responsible – via respondeat superior – for the defamatory and misleading statemen ts Bienvenu and Smith allegedly made to PlanetDeafQueer.com. To state a claim for de famation under D.C. law – which Plaintiff does not contest applies in this divers ity action – a plaintiff must show: “(1) that the defendant made a false and defamatory statement [about her]; (2 ) that the defendant published the statement without privilege to a th ird party; (3) that the defendant’s fault in publishing the statement amounted to at least negligence; and (4) either that the statemen t was actionable as a matter of law irrespective of special harm or that its publication caused the plai ntiff special harm.” Oparaugo v. Watts, 884 A.2d 63, 76 (D.C. 2005) (quoting Crowley v. North Am. Telecomms. Ass’n, 691 A.2d 1169, 1173 n.2 (D.C. 1997)). Claims of defamation and fals e-light invasion of privacy relying on identical allega tions are analyzed t ogether under District law. See Blodgett, 930 A.2d at 223. There is no question that McCaskill signed th e Maryland petition. If her defamation and false-light claims are to succeed, then, she must show Bienvenu and Smith used language in discussing her and the petition with the online mag azine that was both fals e and attributable to the university. Because the Court concludes that the contested statements constituted protected opinion – rather than demonstrably false fact – it need not address the question of attribution to the university. Plaintiff alleges that Bienvenu and Smith told PlanetDeafQueer.com that she: (1) “signed an ‘Anti-gay’ marriage petition”; (2) “is ‘Anti-gay’ because she si gned the . . . petition”; (3) “has always been a closet ‘Anti-gay’ who was outed by the discovery of her name an [ sic ] ‘Anti-gay’ petition”; and (4) “support s overturning same-sex marriage legi slation.” Am. Compl., ¶ 99. To18 begin with, McCaskill seems to ove rlook the fact that the article ne ver used “anti-gay” to refer to her. Instead, it said only that she signed an “anti-gay marriage petition,” see Bienvenu & Smith’s MTD, Exh. C (Gallaudet’s Chief Divers ity Officer Signs Anti-Gay Petition), Oct. 8, 2012, and it made no reference to her personal views about homosexuality, marriage, or the potential legislation. Plaintiff, moreover, offers no facts tending to prove that either Bienvenu or Smith used the term “anti-gay” in conversation with the web site ; the text of the article instead implies that it was the author, not the source, who described the petition that way. Plaintiff’s claim thus fails to satisfy elements of the first and second requireme nts of a defamation claim: that the defendant made a statement at all and that the statement was about the plaintiff. See Oparaugo, 884 A.2d at
76. It appears, in addition, that th is whole dispute might not have arisen had the author of the PlanetDeafQueer.com piece been more punctilious in his punctuation. Indeed, the article may not even have intended to call the petition “an ti-gay.” He may instead have meant “anti-gaymarriage petition.” Such a point would hardly ha ve been controversial. As support for that reading, the Court notes that ex cept for the title of the articl e (“Gallaudet’s Chief Diversity Officer Signs Anti-Gay Petition”), each time the phrase “anti-gay” is invoked, it is followed by “marriage petition.” The Court finds the phrase “marriage petition” to be an odd construction, and one unlikely to arise in this context. It is likely that the author of the piece, adhering to the more casual conventions of the inte rnet press, left out a final h yphen that would have created the compound adjective “anti-gay-marriage” to describe the “petition,” as opposed to applying the descriptor “anti-gay” to “marriag e petition.” If so, this is an even easier case. Whatever force the label “anti-gay” might have had when applied to the petition is blunted if the article or its19 anonymous source instead meant to describe it s imply as hostile to gay marriage. Such an assertion, after all, is at the very least a pr otected opinion. At best, it might well be true. In any event, even calling the petition or Plaintiff “anti-gay” certainly constitutes a protected statement of opinion, rather than a fals e declaration of fact. “A ssertions of opinion on a matter of public concern receive full constitution al protection if they do not contain a provably false factual connotation.” Guilford Trans p. Indus. v. Wilner, 760 A.2d 580, 597 (D.C. 2000) (internal quotation marks omitted). “[W]here the question of truth or falsity is a close one,” moreover, “a court should err on the side of non- actionability.” Moldea v. New York Times Co., 22 F.3d 310, 317 (D.C. Cir. 1994). To determine whet her a statement is actionable or protected, the Court must look at both the common usage and full context of the language used in the statement and the statement’s verifiability. Parsi v. Daioleslam, 595 F. Supp. 2d 99, 109 (D.D.C. 2009) (citing Ollman v. Evans, 750 F.2d 970, 979 (D.C. Cir. 1984)). Each of these factors tilts in Defendant’s favor . First, the term “anti-gay” carries a host of definitions and numerous connotations. Its “co mmon usage or meaning” is thus exceedingly difficult to pin down. Although Plaintiff points to one definition suggesting that “anti-gay” can mean “prejudiced against or opposed to homosex uality or homosexuals,” Opp. at 24 (citing http://oxforddictionaries.com), Defendant finds a similarly reputable sour ce that defines “antigay” as antipathy toward social and civil ri ghts for homosexuals. See Reply at 11 (citing, inter alia , http://www.dictionary.referen ce.com). When a term admits of “tremendous imprecision [in] meaning and usage . . . in the realm of political debate,” it takes a lot to conclude that it is a statement of fact. Buckley v. Littell, 539 F .2d 882, 893 (2d Cir. 1976) (no ting widely divergent definitions of “fascism” and declining to find the term actionable). Whether a particular definition of “anti-gay” accurate ly characterized the petition, th en, is a matter of opinion.20 This conclusion makes sense in light of the s econd Ollman factor, as a statement with a number of possible meanings is by its nature unve rifiable. Plaintiff must convince the Court that it is verifiably false that the Maryland petition was “anti-gay.” As the petition undeniably sought to place on the ballot a measure that would eliminate marriage ri ghts for homosexuals, this is something she cannot accomplish. Even if the arti cle had called her “anti-gay,” which it did not, Plaintiff would still lose. To show that it is verifiably false that she is “anti-gay,” McCaskill points out that “[g]iven the broad language of Proposition 6, [she] really could have voted against the measure for a myriad of reasons and still have been supportive of same-sex marriages.” Opp. at 25. This statement, however , is itself an opinion. While Plaintiff believes one can sign a petition placing th e gay-marriage question on the ba llot and remain “pro-gay,” others – say, the faculty members and stude nts who questioned McCaskill’s continuing employment – might disagree. Because differe nt constituencies can hold different – and completely plausible – views of Plaintiff’s act ions, statements characterizing those actions constitute protected opinion. That conclusion finds nationwid e support in the case law. A lthough D.C. courts have not had occasion to decide the issue, to the C ourt’s knowledge no decision has found statements claiming that a person is anti-gay or hom ophobic to be actionable defamation. See, e.g., Schumacher v. Argosy Educ. Grp., Inc., N o. 05-531, 2006 U.S. Dist. LEXIS 88068, at *45 (D. Minn. Dec. 6, 2006) (“The Court fi nds that referring to [plain tiff] as ‘homophobic’ does not constitute defamation as a matter of law.”); Le ster v. Powers, 596 A.2d 65, 71 (Me. 1991) (letter to editor asserting that prof essor was homophobic was protected opinion); Vail v. Plain Dealer Publishing Co., 649 N.E.2d 182, 186 (Ohio 1995) (artic le stating that candi date had “engag[ed] in an ‘anti-homosexual diatri be’ and foster[ed] ‘homophobia’” was protected opinion); Waterson21 v. Cleveland State Univ., 639 N.E.2d 1236, 1237-40 (Ohio Ct. App. 1994) (letter to editor alleging police officer was homophobic not defamatory as matter of law). The Court, therefore, holds that the Plan etDeafQueer.com article and its underlying statements are not actionable as defamation or false light.
2. Intentional Infliction of Emotional Distress In Count VI of her Amended Complaint, Pl aintiff alleges that Defendant engaged in conduct that was “outrageous” and “extreme” and t hus constitutes the intentional infliction of emotional distress. Am Compl., ¶ 124. In part icular, she contends th at Gallaudet caused her distress by choosing to: (1) tacitly encourage Bi envenu and Smith to make the petition dispute public, or, at the very least, fail to punish them once Plaintiff brought their alleged subterfuge to the administration’s attention, see id., ¶ 125; (2) “turn a blind ey e to continued harassment and discriminate [ sic ] against Plaintiff,” id., ¶ 127; (3) “s uspend Plaintiff then convert it to administrative leave, . . . demote Plaintiff, [and] cut her budget,” id., ¶ 128; and (4) “allow, approve, ratify and/or condone . . . threats to Plaintiff without so mu ch as an investigation.” Id., ¶ 129. McCaskill’s allegations, however, again come up empty. To prove a claim of intentional infliction of emotional distress, a plaintiff must show “extreme and outrageous conduct on the part of the defendant which . . . intentionally or recklessly . . . cause s the plaintiff severe emotional distress.” Duncan v. Children ’s Nat’l Med. Ctr., 702 A.2d 207, 211 (D.C. 1997) (internal quotation marks omitted); Garay v. Liriano, 943 F. Supp. 2d 1, 23 (D.D.C. 2013). “There is no general duty of care to avoid causing mental distress, and liability is not imposed for all conduct which causes mental distress.” Duncan, 702 A.2d at 211. Instead, conduct is considered actionable only when it is “so outrageous in character, a nd so extreme in degree, as to22 go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.” Bernstein v. Fernandez, 649 A.2d 1064, 1075 (D.C. 1991) (quoting Restatement (Second) of Torts § 46 cmt. d (1965)). The bar is even higher in the employment context, as, in general, “employer-employee conflicts do not rise to the le vel of outrageous conduct.” D uncan, 702 A.2d at 711-12. This is especially true when the alleged intentional in fliction arises out of an employer’s failure to respond to an employee’s personnel compla ints, see King v. Kidd, 640 A.2d 656, 670-74 (D.C. 1993), termination, see District of Columb ia v. Thompson, 570 A.2d 277, 290 (D.C. 1990), or even assault of an employee. Id. Perhaps most aptly, the D.C. Court of A ppeals has held that an employer who “manufactured evidence against [an em ployee] in order to establish a false claim of sexual harassment,” “leaked information from the investigation to other employees, and unjustifiably demoted him” was not guilty of intentional infliction of emotional distress. See Kerrigan v. Britches of Georgetowne, Inc., 705 A.2d 624, 628 (D.C. 1997). Plaintiff alleges far less, so her claim meets a similar fate.
3. Negligence Plaintiff, finally, alleges in Count VII that Galaudet was negligent in allowing its employees to violate Plaintiff’ s right to be free from criminal voter intimidation under Maryland Election Code ¶ 16-201. “The foundation of mode rn negligence law is the existence of a duty owed by the defendant to the plaintiff. Negligen ce is a breach of duty; if there is no duty, there can be no breach, and hence no negligence.” N.O.L. v. District of Columbia, 674 A.2d 498, 499 n.2 (D.C. 1995) (citing Palsgraf v. Long Island Railroad Co., 248 N.Y. 339 (N.Y. 1928)). Defendant argues that it had no duty to protect Plaintiff from the possibility that another of its employees would harm her in violation of Maryland law. See Gallaudet MTD for Failure23 to State a Claim at 29. After all, “[i]n general no liability exists in tort for harm resulting from the criminal acts of third pa rties.” Hall v. Ford Enters., Ltd., 445 A.2d 610, 611 (D.C. 1982). Plaintiff responds that “liability for such harm sometimes may be imposed on the basis of some special relationship between the parties” and argu es that she had a “special relationship” with Gallaudet, which, as her employer, had a duty to pr otect her from voter intimidation. See Opp. at 42-43 (quoting Hall, 445 A.2d at 611). In support of that contention, McCaskill points to Kline v. 1500 Massachusetts Ave. Apartment Corp., 439 F.2d 477, 482-83 (D.C. Cir. 1970), which allows that the employer-employee relationship ma y give rise to a duty of protection against third-party violations of the law. That case, however, is not nearly enough to support finding such a duty here. In Kline, the D.C. Circuit noted that in all of the employer-employee ca ses, “the theory of liability [was] essentially the same; that since the ability of one of the pa rties to provide for his own protection has been limited in some way by his submission to the control of the other, a duty should be imposed upon the one possessing control . . . to take reasonable precautions to protect the other one from assaults by third parties wh ich, at least, could reasonably have been anticipated.” Id. at 483. In s hort, “special-relatio nship” duties generally arise only if the plaintiff submitted to the control of the defendant and the eventual harm was foreseeable. Plaintiff’s situation is different in at least tw o ways. First, McCaskill’s ability to “provide for [her] own protection” was in no way limited. Un like the typical tort case, in which a delivery company, for example, might have a duty to protect its cu stomers from assault at the hands of an employee, see Schecter v. Merchant’s Home Delivery, Inc., 892 A.2d 415, 427-31 (D.C. 2006) (finding that this was question fo r jury), Plaintiff was not in harm’s way as a result of her relationship with Gallaudet, and Gallaudet did nothing to preven t her from defending herself.24 Second, the canonical cases al lowing for the possibility of liability for third-party crimes deal almost exclusively with acts of “violence.” Kline, 439 F.2d at 483. Such acts are universally known to be dangerous and, perhaps more relevant here , illegal, so it is not a stretch to expect an employer to foresee that a crime might occur on it s watch. Here, the Court believes it safe to assume that the voter-intimidation provision of the Maryland Election Code is not at the forefront of the minds of administrators of a D.C.-based university not actively involved in electioneering of any kind. Plaintiff attempts to sidestep these limitations by arguing that “Unive rsity policy” and the common law “confer[] a reasonable duty of protection” on Gallaudet. Am. Compl., ¶ 142. That may very well be true, but the rest of Plainti ff’s claim is her undoing. Although she argues that the university’s duty of protection required that it shield her fro m “harmful bullying, harassment, intimidation, threats of violence, and discrimina tion,” id., she has not alleged negligence in the context of any such harassment, contending inst ead that the university had a duty “to take reasonable measures to prevent Bienvenu from con tinuing to [attempt to] influence [her in] . . . violation of voter intimidation la ws.” Id., ¶ 135. The Court, therefore, concludes that the university did not owe Plaintiff a duty to protect her from voter intimidation in violation of the Maryland Election Code. It will, accor dingly, dismiss her negligence claim.
IV. Conclusion For the foregoing reasons, the Court will deny Defendant’s Motion to Dismiss for Failure to Join Indispensable Parties, but it will grant the university’s Motion to Dismiss for Failure to State a Claim in its entirety and without prejudice. An Order consistent with this Opinion will issue this day.
/s/ James E. Boasberg25 JAMES E. BOASBERG United States District Judge
Date: April 14, 2014