UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

EMPLOYEE #1, 

 Plaintiff, 

 v. 

DEPARTMENT OF BEHAVIORAL 

HEALTH, et al., 

Defendants. 

 No. 23-cv-2553 (DLF)

MEMORANDUM OPINION

After a patient murdered another patient at St. Elizabeth’s Hospital, the hospital fired 

Employee 1, a psychiatric nurse who first discovered the murder. Employee 1, proceeding pro se 

and pseudonymously, brings this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 

§ 2000e et seq, and various state common law claims. Employee 1 argues he was terminated based 

on his sex and national origin and that the defendants defamed him, breached contracts, and 

committed various torts against him. Before the Court are the defendants’ Motions to Dismiss, 

Dkts. 41, 44, 54.1 For the reasons that follow, the Court will grant the defendants’ motions. 

1 The District of Columbia filed a Motion to Dismiss, or in the Alternative for Partial Summary 

Judgment, Dkt. 44, seeking partial judgment because the plaintiff did not comply with the 

mandatory notice requirements of D.C. Code § 12-309. At this stage, the Court will not convert 

the motion to one for partial summary judgment and consider the District’s supporting 

declaration, Dkt. 44-A. Instead, the Court will dismiss the plaintiff’s tort claims against the 

District for unliquidated damages—Counts III and VIII—without prejudice, because the plaintiff 

failed to allege in his complaint, see generally Second Am. Compl, Dkt. 37, or argue in his 

opposition, see generally Opp’n, Dkt. 48, that he gave the required notice. 
2 

I. BACKGROUND

A. Factual Background 

Employee 12 is a Nigerian male who was employed by the D.C. Department of Behavioral 

Health (“Department”) as an RN and then as a psychiatric nurse at St. Elizabeth’s Hospital (“St. 

Elizabeth’s”) from 2009 until 2022. Second Am. Compl. at 6–7, ¶¶ 1–5, Dkt. 37. On February 

11, 2022, St. Elizabeth’s staff found a shank made of four plastic spoons wrapped together and 

shaved down to a point in a patient’s room. Id. at 8, ¶¶ 4–5. According to the complaint, that 

patient, identified as Patient #2, had a history of violence and was in pretrial custody at St. 

Elizabeth’s for attacking a homeless man. Id. ¶¶ 20, 23. As alleged, St. Elizabeth’s failed to warn 

staff about Patient #2’s violent history or the manufactured weapon. Id. at 16, ¶ 40. Instead, St. 

Elizabeth’s continued to treat Patient #2 like any other patient. Id. ¶¶ 35, 39. 

A month later, Employee 1 was working the night shift. Id. ¶ 45. At 2:52 a.m., Patient #2 

entered the bedroom of another patient, Patient #1, and attacked him. Id. ¶¶ 124, 131. Despite 

checking on Patient #2’s room at 3:10 a.m., Employee 1 did not realize Patient #2 was absent. Id. 

¶¶ 125–26. At around 3:28 a.m., Employee 1 conducted his regular rounds. Only then did he 

notice Patient #2 standing in Patient #1’s room. Id. ¶ 132. Upon taking a closer look, Employee 

1 realized that Patient #2 was standing with his foot on the prone body of Patient #1. Id. ¶ 133. 

He entered the bedroom, telling Patient #2 to remove his foot. Id. ¶ 50. Patient #2 then charged 

Employee 1 in a “menacing manner,” and Employee 1 exited the room and called a “code blue”

emergency alert. Id. ¶¶ 56, 58. Other St. Elizabeth’s staff then responded. Id. ¶¶ 62, 65, 76. 

2 The plaintiff’s motion to proceed pseudonymously was preliminarily granted. Memorandum Op. 

& Order, Dkt. 5. Since then, none of the defendants have filed a motion to unseal the plaintiff’s 

identity. This Court declines to do so sua sponte and refers to the plaintiff as Employee 1. 
3 

After investigating the incident, the Department and St. Elizabeth’s terminated Employee 

1. Id. ¶ 147. University Legal Services, a non-profit group that conducts investigations related 

to individuals with disabilities, published a report summarizing the incident and identifying 

preventative measures that could be implemented. Id. at 7, ¶ 12; id at 40 ¶ 175; ULS Mot. to 

Dismiss at 2, Dkt. 54. 

B. Procedural Background

Employee 1 brought this lawsuit, alleging Title VII employment discrimination and state 

common law tort claims against almost twenty defendants, including the Department of Behavioral 

Health, St. Elizabeth’s, and a number of their employees. Am. Compl., Dkt. 7. Because many of 

the defendants were government employees sued in their official capacity, Employee 1 moved to 

file an amended complaint substituting those defendants for the District of Columbia. Mot. to 

Substitute, Dkt. 34. He filed the operative complaint on January 12, 2024. See Second Am. 

Compl. In that complaint, he pursued claims against four defendants: the director of the 

Department, Barbara Bazron, in her individual capacity; the CEO of St. Elizabeth’s, Mark 

Chastang, in his individual capacity; the District of Columbia; and University Legal Services. Id. 

The complaint alleges eight claims: (I) national origin discrimination; (II) sex discrimination; (III) 

assault; (IV) negligent infliction of emotional distress; (V) defamation; (VI) breach of contract; 

(VII) denial of benefits; and (VIII) failure to supervise. Id. The defendants filed motions to 

dismiss in February, March, and September of 2024. See Dkts. 41, 44, 54. This case was 

transferred to the undersigned on July 9, 2024. 

II. LEGAL STANDARDS 

Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a defendant to move to 

dismiss the complaint for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 
4 

12(b)(6). To survive a Rule 12(b)(6) motion, a complaint must contain factual matter sufficient to 

“state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 

(2007). A facially plausible claim is one that “allows the court to draw the reasonable inference 

that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 

(2009). This standard does not amount to a specific probability requirement, but it does require 

“more than a sheer possibility that a defendant has acted unlawfully.” Id.; see also Twombly, 550 

U.S. at 555 (“Factual allegations must be enough to raise a right to relief above the speculative 

level.”). A complaint need not contain “detailed factual allegations,” Iqbal, 556 U.S. at 678, but 

alleging facts that are “merely consistent with a defendant’s liability . . . stops short of the line 

between possibility and plausibility,” id. (internal quotation marks omitted).

Well-pleaded factual allegations are “entitled to [an] assumption of truth,” id. at 679, and 

the court construes the complaint “in favor of the plaintiff, who must be granted the benefit of all 

inferences that can be derived from the facts alleged,” Hettinga v. United States, 677 F.3d 471, 

476 (D.C. Cir. 2012) (internal quotation marks omitted). The assumption of truth does not apply, 

however, to a “legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678 (internal 

quotation marks omitted). An “unadorned, the defendant-unlawfully-harmed-me accusation” is 

not credited, id.; likewise, “[t]hreadbare recitals of the elements of a cause of action, supported by 

mere conclusory statements, do not suffice.” Id. Ultimately, “[d]etermining whether a complaint 

states a plausible claim for relief [is] a context-specific task that requires the reviewing court to 

draw on its judicial experience and common sense.” Id. at 679. 

When deciding a Rule 12(b)(6) motion, the court may consider only the complaint itself, 

documents attached to the complaint, documents incorporated by reference in the complaint, and 

judicially noticeable materials. EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 
5 

(D.C. Cir. 1997). A Rule 12(b)(6) dismissal “is a resolution on the merits and is ordinarily 

prejudicial.” Okusami v. Psychiatric Inst. of Wash., Inc., 959 F.2d 1062, 1066 (D.C. Cir. 1992). 

III. ANALYSIS

The defendants move to dismiss the complaint on various grounds. The government 

defendants argue that the complaint fails to plead facts sufficient to support Employee I’s eight 

claims and that the claims are also precluded by the Comprehensive Merit Personnel Act, the D.C. 

Code administrative scheme for adjudicating government-employee disputes. The District raises

an additional bar to certain claims: that Employee 1 failed to give notice of his unliquidated tort 

claims pursuant to D.C. Code § 12-309. See Blocker-Burnette v. District of Columbia, 730 F. 

Supp. 2d 200, 203 (D.D.C. 2010). This Court first will consider whether Employee 1 needed to 

exhaust his administrative remedies or provide notice before turning to the other bases to dismiss 

the remaining claims. 

A. Comprehensive Merit Personnel Act 

In the District of Columbia, the Comprehensive Merit Personnel Act (“CMPA”) provides 

recourse for employee grievances raised over work-related matters. See generally D.C. Code §§ 

1-601 et seq. This comprehensive administrative scheme is, with a few exceptions, the exclusive 

avenue for a government employee to bring work-related complaints. See Baker v. District of 

Columbia, 785 A.2d 696, 697–98 (D.C. 2001); Johnson v. District of Columbia, 368 F. Supp. 2d 

30, 37 (D.D.C. 2005); see also 6 DCMR § 1626. A grievance encompasses any personnel or 

disciplinary action taken by the District which “impairs or adversely affects the interest, concern, 

or welfare of employees.” D.C. Code § 1-603.01(10); see District of Columbia v. Thompson, 593 

A.2d 621, 624 (D.C. 1991). An aggrieved employee subject to this type of action must exhaust 

his claims within the administrative system, and may only turn to the courts as a “last resort.” 
6 

Armstead v. District of Columbia, 810 A.2d 398, 400 (D.C. 2002); see D.C. Code § 1-616.53. 

Courts should dismiss claims if there is even a “substantial question” on whether the CMPA 

applies. Johnson, 368 F. Supp. 2d. at 48. The District, Bazron, and Chastang argue that Employee 

1’s claims are barred because he did not follow CMPA exhaustion procedures. D.C. Mot. to 

Dismiss at 4, Dkt. 44; Bazron & Chastang Mots. to Dismiss at 4, Dkt. 41. The Court agrees as to

some, but not all, counts. 

Employee 1’s claims for negligent infliction of emotional distress (Count IV), defamation 

(Count V), breach of contract (Count VI), and denial of benefits (Count VII) raise a substantial 

question on whether they are covered by the CMPA. Count IV alleges the defendants negligently 

inflicted emotional distress by publicizing “false statements and allegations” against him, causing 

him further trauma. Second Am. Compl., at 62, ¶ 111. But those allegedly false statements were 

made to defend the hospital’s decision to fire Employee 1—the exact type of personnel decision 

that is covered by CMPA. See Johnson, 368 F. Supp. 2d at 46; Thompson, 593 A.2d at 635. 

Similarly, Employee 1’s defamation claim (Count V) disputes St. Elizabeth’s description of his 

conduct the night of the incident. Defamation claims regarding a “work related complaint” must 

go through the CMPA procedure. Baker, 785 A.2d at 698. Finally, this Court will construe both 

Counts VI and VII as raising breach of contract claims. See generally Second Am. Compl. at 70–

73. In Count VI, Employee 1 alleges that Bazron promised to provide him workplace resources 

to address his trauma, resources he never received because he was fired. Id. at 71, ¶¶ 140, 142. 

Similarly, Count VII alleges that St. Elizabeth’s made promises to re-train its employees. But 

because Employee 1 was terminated, he never received the promised training. Id. at 72, ¶¶ 145, 

147. Both allegations relate directly to personnel decisions covered by the CMPA—training, 

workplace resources, and termination. Cf. Johnson, 368 F. Supp. 2d at 43–44 (finding alleged 
7 

failure of employer to follow its own disciplinary rules needed CMPA exhaustion); White v. 

District of Columbia, 852 A.2d 922, 925–26 (D.C. 2004) (concluding fraudulent misrepresentation 

claims must follow CMPA procedure). Because a “substantial question” exists as to whether 

Counts IV, V, VI, and VII are covered by the CMPA, Employee 1 was required to exhaust his 

administrative remedies before seeking judicial relief. Johnson, 368 F. Supp. 2d. at 48. The Court 

will therefore dismiss Counts IV, V, VI, and VII against the District, Bazron, and Chastang for 

failure to exhaust. 

By contrast, the remaining four counts—assault, failure to supervise, and employment 

discrimination—fall outside the CMPA’s processes. The CMPA only covers grievances on 

specific issues: performance evaluations and disciplinary actions. See Thompson, 593 A.2d at 624. 

Any employee grievances that do not relate to discipline do not go through CMPA procedures. 

See D.C. Human Rights, Grievance Processing, at edpm.dc.gov/issuances/grievance-processing 

(accessed September 5, 2024) (classifying the types of actionable grievances).

3

 As relevant here, 

Employee 1’s assault claim (Count III) and failure to supervise claim (Count VIII) relate to the 

dangerous conditions of his employment, not disciplinary actions. Thus, they are not precluded 

by the CMPA. See Stockard v. Moss, 706 A.2d 561, 565 n.7 (D.C. 1997) (assault not covered by 

the CMPA). Likewise, Employee 1’s discrimination allegations (Counts I and II) are not covered 

by the CMPA. Even though they do relate to his termination, the CMPA excludes discrimination 

3 The District’s website for processing grievances under the CMPA also confirms that grievances 

only apply to discipline and other personnel decisions. Although the parties do not reference this 

in their briefs, the Court will take judicial notice of this fact because the accuracy of the information 

on the District’s official website “cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2); see 

also Herron v. Fannie Mae, No. 10-cv-00943 (RMC), 2012 WL 13042852 (D.D.C. Mar. 28, 2012) 

(taking judicial notice of “certain public records of federal agencies that are available on the 

agencies’ websites”); Hamilton v. Paulson, 542 F. Supp. 2d 37, 52 n.15 (D.D.C. 2008) (holding 

judicial notice may be taken of public records and government documents available from reliable 

sources on the internet), rev’d on other grounds, 666 F.3d 1344 (D.C. Cir. 2012). 
8 

issues. See King v. Kidd, 640 A.2d 656, 664 & n.9 (D.C. 1993). Counts I, II, III, and VIII therefore 

do not fall under the CMPA and do not need to be exhausted. 

B. Notice

Ordinarily, sovereigns, including the District of Columbia, are not liable to suit. But a 

sovereign may choose to waive its sovereign immunity subject to notice requirements. See Faison 

v. District of Columbia, 664 F. Supp. 2d 59, 68 (D.D.C. 2009). Relevant here, D.C. Code § 12–

309 prescribes notice requirements that potential plaintiffs must follow before bringing tort claims

for “unliquidated damages” against the District. “A debt is liquidated if at the time it arose, it was 

an easily ascertainable sum certain.” District of Columbia v. Campbell, 580 A.2d 1295, 1300 (D.C.

1990) (cleaned up). If the damages are not easily ascertainable, plaintiffs must give written notice 

to the mayor of the “time, place, cause, and circumstances” of the event within six months of the 

injury. D.C. Code § 12-309. These requirements must be “strictly construe[d].” Day v. D.C. 

Dep’t of Consumer & Regulatory Affairs, 191 F. Supp. 2d 154, 158 (D.D.C. 2002). Employee 1

does not allege in his complaint that he gave notice to the mayor. He also does not address this 

issue in his opposition to the defendants’ motion to dismiss. See generally Opp’n, Dkt. 48. Thus, 

Employee 1’s tort claims for unliquidated damages cannot go forward against the District. 

It remains to determine which claims, if any, are for unliquidated damages. Some of the 

requested forms of relief fall outside of the notice requirement, such as Employee 1’s demand for 

backpay and non-pecuniary equitable relief, and may therefore proceed. See Elzeneiny v. District 

of Columbia, 699 F. Supp. 2d 31, 35 (D.D.C. 2010) (prayers for equitable relief, such as 

reinstatement or promotion, are not subject to the notice requirement). Counts I and II fall under 

a federal statute and therefore state notice requirements do not apply. See infra §§ III.C.1, III.D.1. 

But Counts III and VIII, which allege tort claims for assault and negligence, are subject to D.C.’s 
9 

notice requirements. The damages for both alleged torts stem from a harm that is not easily 

quantifiable: “trauma” from the incident. Second Am. Compl. at 76; see Opp’n at 52. Because 

Counts III and VIII bring tort claims against the district for unliquidated damages, and Employee 1 

has not established that he provided notice, they cannot proceed against the District. 

The remaining Title VII and common law claims are Counts I and II (Title VII) against the 

District; Count III (Assault) against Bazron and Chastang; Count V (Defamation) against 

University Legal Services; and Count VIII (Failure to Supervise) against Bazron and Chastang. 

The Court will address each in turn. 

C. Count I: National Origin Discrimination

1. Exhaustion 

A federal employee bringing claims under Title VII must timely exhaust administrative 

remedies before filing suit in federal district court. See Barkley v. U.S. Marshals Serv. ex rel. 

Hylton, 766 F.3d 25, 33 (D.C. Cir. 2014); Hamilton v. Geithner, 666 F.3d 1344, 1349 (D.C. Cir. 

2012); see also 29 U.S.C. § 794a(a)(1). An employee does so by first filing a claim with the Equal 

Employment Opportunity Commission. See generally 42 U.S.C. § 2000e-5. If the EEOC declines 

to pursue the claim, it will notify the plaintiff and grant the plaintiff the right to sue. Id. § 2000e5(f)(1). A plaintiff has ninety days from receiving notice of his right to sue to commence a Title

VII suit in court. See Dougherty v. Barry, 869 F.2d 605, 609 (D.C. Cir. 1989). 

The EEOC issued a right to sue letter on May 12, 2023. EEOC Letter, Dkt. 48-1; Ndondji 

v. InterPark Inc., 768 F. Supp. 2d 263, 272 (D.D.C. 2011) (“A court may consider an EEOC 

complaint and Notice of Charge without converting a motion to dismiss into a motion for summary 

judgment.”). Employee 1 filed this suit ninety-four days later, on August 14, 2023. Compl., Dkt. 

1. According to the defendants, that makes his claims untimely. Reply at 2, Dkt. 49. But the 
10 

operative date for determining timeliness is when the plaintiff received the letter, not when the 

EEOC issued it. Employee 1 does not clearly allege when he received the EEOC’s letter.4 But 

“the presumptive day of receipt is three-to-five days after issuance and mailing.” Maggio v. 

Wisconsin Ave. Psychiatric Ctr., Inc., 795 F.3d 57, 59 n.1 (D.C. Cir. 2015). Adding that to the 

calculus means Employee 1’s filing fell within the 90-day period. His claims are therefore timely.

2. Failure to State a Claim 

As an initial matter, it is unclear from the complaint which defendants Employee 1 includes 

in this claim. Bazron, Chastang, and the District assume they are all included. See Bazron Mot. 

to Dismiss at 7; D.C. Mot. to Dismiss at 6–7. But Employee 1 sued Bazron and Chastang in their 

individual capacities only. “Title VII does not impose liability on individuals in their personal 

capacities.” Coulibaly v. Kerry, 213 F. Supp. 3d 93, 135 (D.D.C. 2016); see also Gary v. Long, 

59 F.3d 1391, 1399 (D.C. Cir. 1995). Thus, this Court will consider allegations in Count One 

against the District only. 

Employee 1 alleges St. Elizabeth’s and the Department discriminated against him on the 

basis of national origin by firing him. To prevail on a Title VII discrimination claim, a plaintiff 

must show (1) he is a member of the protected class; (2) he suffered an adverse employment action; 

and (3) that action was due to his protected status. Wiley v. Glassman, 511 F.3d 151, 155 (D.C.

Cir. 2007). The only disputed element is the third one. To show discrimination, Employee 1

points out that other American employees were also working that night but were not terminated. 

Second Am. Compl. at 47, ¶ 21. But beyond conclusory assertions that his disparate treatment 

was because of his national origin, Employee 1 offers no factual allegations that support his bald 

4 He attaches a Notice from the EEOC dated May 20, 2023. Although it’s possible that is the date 

he first received notice, Employee 1 does not clearly state as much. The Court will therefore treat 

the date of receipt as unknown. 
11 

assertion of discrimination. Indeed, Employee 1 admits he visited Patient #2’s room shortly after 

the attack occurred yet did not notice Patient #2 had left his room. Second Am. Compl., ¶¶ 125–

26. This oversight on the night of the incident, coupled with his responsibility as the first nurse to 

arrive, allows a plausible inference that he was not terminated for national origin discrimination. 

Absent more, Employee 1 has failed to allege a claim of national origin discrimination under Title 

VII against the District. Accordingly, the claim will be dismissed under Rule 12(b)(6). 

D. Count II: Gender Discrimination 

1. Exhaustion 

As discussed previously, federal employees bringing suit under Title VII must timely 

exhaust administrative remedies. See infra, § III.B.1. The exhaustion requirement “serves the 

important purposes of giving the charged party notice of the claim and narrowing the issues for 

prompt adjudication and decision.” Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995) 

(cleaned up). It limits the scope of an employee’s complaint in federal court “to claims that are 

like or reasonably related to the allegations of the [EEOC] charge and growing out of such 

allegations.” Id. (citation omitted). A claim is “reasonably related” to an EEOC charge if “[a]t a 

minimum,” the claim would “arise from the administrative investigation that can reasonably be 

expected to follow the charge of discrimination.” Haynes v. D.C. Water & Sewer Auth., 924 F.3d 

519, 526–27 (D.C. Cir. 2019) (internal quotation marks and citation omitted). 

When Employee 1 filed his charge with the EEOC, he listed national origin but did not 

mention sex discrimination as a basis for his discrimination claim. EEOC Charge at 3, Dkt. 48-1. 

He also failed to include any factual allegations related to his sex, nor did he claim that defendants’ 

conduct was motivated by his sex. Id. A plaintiff who includes in his complaint “allegations 

outside the ambit of the predicate EEOC charge” fails to exhaust his administrative remedies “as 
12 

surely as would an initial failure to file a timely EEOC charge.” Marshall v. Fed. Exp. Corp., 130 

F.3d 1095, 1098 (D.C. Cir. 1997); see also Haynes v. DC Water Is Life, 271 F. Supp. 3d 142, 154–

56 (D.D.C. 2017) (finding failure to exhaust race and age discrimination claims where EEOC 

charge only mentioned disability discrimination), aff'd sub nom. Haynes v. D.C. Water & Sewer 

Auth., 924 F.3d 519 (D.C. Cir. 2019). Employee 1 failed to exhaust his sex discrimination claim, 

and thus the Court will dismiss the claim with prejudice under Rule 12(b)(6). See Charles v. 

District of Columbia, 164 F. Supp. 3d 98, 103 n.6 (D.D.C. 2016). 

E. Count III: Assault

Employee 1 alleges Patient #2 assaulted him by lunging towards him in a menacing 

manner. Second Am. Compl. at 56, ¶ 72. Assault “occurs when one person (a) ‘acts intending to 

cause a harmful or offensive contact with the person of the other . . ., or an imminent apprehension 

of such a contact, and (b) the other is thereby put in such imminent apprehension.’” Stansell v. 

Cuba, 217 F. Supp. 3d 320, 343 (D.D.C. 2016) (quoting Restatement (Second) of Torts § 21(1)). 

Employee 1 pleads facts supporting the allegation that Patient #2 committed assault against him. 

But Patient #2 is not a party to this suit. And “[a]s a general rule, a private person does not have 

a duty to protect another from a criminal attack by a third person.” Kline v. 1500 Mass. Ave. 

Apartment Corp., 439 F.2d 477, 481 (D.C. Cir. 1970). Although the District may be held 

vicariously liable for the actions of its employees acting within the scope of their employment, 

Evans-Reid v. District of Columbia, 930 A.2d 930, 937 (D.C. 2007), that exception does not apply 

here. Patient #2 was not an employee, and he was not acting to further the District’s purposes. In 

any event, as discussed above, Employee 1 has not established he complied with notice 

requirements regarding the alleged assault. See supra § III.B. Although Bazron and Chastang are 

employees of the District, Employee 1 does not mention them in Count III of his complaint, much 
13 

less explain how they contributed to the assault. Thus, Employee 1 fails to state a claim for assault 

against any of the defendants. 

F. Count V: Conspiracy to Defame and Defamation of Character 

In addition to bringing this claim against the government defendants, Employee 1 alleges 

that University Legal Services—a private entity not subject to the CMPA—conspired and acted to 

defame him by publishing the investigation report on the incident. Second Am. Compl., at 63–70. 

The Court will dismiss this count also because Employee 1 fails to plead facts sufficient to support 

his claims of defamation and conspiracy to defame. 

1. Defamation 

To state a claim for defamation, a plaintiff must sufficiently allege: (1) “that the defendant 

made a false and defamatory statement concerning the plaintiff”; (2) “that the defendant published 

the statement without privilege to a third party”; (3) “that the defendant’s fault in publishing the 

statement amounted to at least negligence”; and (4) “either that the statement was actionable as a 

matter of law irrespective of special harm or that its publication caused the plaintiff special harm.” 

Croixland Props. Ltd. P’ship v. Corcoran, 174 F.3d 213, 215 (D.C. Cir. 1999) (quoting Crowley 

v. N. Am. Telecomm. Ass’n, 691 A.2d 1169, 1172 n.2 (D.C. 1997)). At a minimum, Employee 1 

has not met the fourth prong. 

First, only “statements about extreme subjects, such as criminal behavior, serious sexual 

misconduct, a loathsome disease, or a person’s suitability for his chosen profession,” are 

considered per se defamatory. Smith v. Clinton, 886 F.3d 122, 128 (D.C. Cir. 2018) (cleaned up). 

Employee 1 claims that the report painted him as “callous and indifferent” which was to his 

“detriment.” Second Am. Compl. at 65, ¶¶ 122–23. Although no individual wants to be portrayed 

as callous, a reputational slight is not enough to serve as a defamatory statement. Franklin v. 
14 

Pepco Holdings, Inc., 875 F. Supp. 2d 66, 75 (D.D.C. 2012). Employee 1 does not suggest that 

the report made any direct statements attacking his ability to serve as a psychiatric nurse. Nor does 

he allege any other statement that rises to the level of per se defamation. 

Second, Employee 1 also fails to establish special harm. To show special harm, a plaintiff 

must plead “actual pecuniary loss” resulting from the defamation. Conejo v. Am. Fed’n of Gov’t 

Emps., 377 F. Supp. 3d 16, 32 (D.D.C. 2019) (citing FAA v. Cooper, 566 U.S. 284, 295 (2012)). 

Although Employee 1 does list certain financial injuries, such as loss of income and retirement 

contributions, he does not allege that those pecuniary harms stemmed from University Legal 

Services’s defamation. Indeed, its report postdated his termination, so there is no way any 

defamatory statement caused him to lose his job. Second Am. Compl. at 7, ¶ 5 (fired 9/2022); id. 

at 64, ¶ 117 (report published 12/2022). Employee 1 thus does not allege pecuniary loss resulting 

from defamation. 

In sum, Employee 1 has not pleaded with specificity sufficient facts to support per se 

defamation or special harm resulting from ULS’s allegedly defamatory statements.

2. Conspiracy 

In order to plead a conspiracy claim, a plaintiff must allege facts sufficient to support a 

claim for the underlying act. Nader v. Democratic Nat. Comm., 567 F.3d 692, 697 (D.C. Cir. 

2009). Because Employee 1 has failed to plead facts supporting defamation, the Court will also 

dismiss his conspiracy claim. 

G. Count VIII: Failure to Supervise

Employee 1 alleges that the failure of District, Bazron, and Chastang to supervise patients 

at the hospital proximately caused the fatal incident. Second Am. Compl. at 73, ¶ 150–51. The 

Court will interpret this as a negligence claim. As already discussed, Employee 1 failed to allege 
15 

that he followed the notice requirements under D.C. Code § 12-309. See supra, § III.B. In 

addition, although he incorporates paragraphs 1 through 304 into Count VIII, it is unclear whether 

he brings this claim against Bazron and Chastang in their individual capacities. To the extent he 

intended to bring a negligence claim against these defendants, he has failed to plead facts sufficient 

to support such a claim. To plead a negligence claim, Employee 1 must allege facts sufficient to 

show that Bazron and Chastang (1) owed him a duty; (2) breached that duty; and that (3) the breach 

was the proximate cause of (4) his damages. See Jolevare v. Alpha Kappa Alpha Sorority, Inc., 

521 F. Supp. 2d 1, 14 (D.D.C. 2007). Employee 1’s complaint falls short because it does not allege 

what duty Bazron and Chastang owed to him personally, nor does it explain how they breached 

any such duty. General allegations that hospital residents were not properly supervised, see, e.g., 

Sec. Am. Compl., Dkt. 37 at 73, are insufficient to state a negligence claim against Bazron and 

Chastang. Employee 1 must provide specific details about the defendants’ duties, rather than mere 

“conclusory statements.” Iqbal, 556 U.S. at 678. Because he has not done so, the Court will 

dismiss Count VIII without prejudice. 
16 

CONCLUSION

For the foregoing reasons, the defendants’ Motions to Dismiss, Dkts. 41, 44, 54, are 

GRANTED. Counts II, IV, V, VI, and VII are dismissed with prejudice under Rule 12(b)(6) for 

failure to exhaust. Counts I, III, and VIII are dismissed without prejudice under Rule 12(b)(6). A 

separate order consistent with this decision accompanies this memorandum opinion. 

 ________________________ 

 DABNEY L. FRIEDRICH

United States District Judge

September 29, 2024