UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

ROSA ARIAS, 

Plaintiff, 

v. 

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

Defendant. 

MEMORANDUM OPINION 

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

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

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

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

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

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

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

negligent misrepresentation of material facts (Count 5) I 

aggravated assault (Count 6), fraudulent concealment of material 

fact (Count 7), and violation of D.C. Code § 32-1103 (Count 71 ). 

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

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

[Dkt. No. 3 3] . 

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

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

Motion is granted in part and denied in part. 

I . BACKGROUND 

A. Factual Background 

Plaintiff Rosa Arias, a Spanish American, has been employed 

in the Housekeeping Department at the Defendant's Washington 

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

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

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

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

such as furniture polish and antibacterial all-purpose cleaning 

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

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

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

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

she experienced severe eye irritation, headaches, respiratory 

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

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

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

Id. ~~ 3-4, 7. 

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

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

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

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

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

deposition testimony in another case, Sanchez v. Mariott 

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

against Defendant's affiliate Marriott Corporation, about the 

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

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

she and her coworkers told Marriott that the chemicals were making 

them sick and that Marriott never trained the Housekeeping 

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

asserts that Defendant obviously had notice of her deposition 

testimony in the Sanchez case. Id. ~ 30. 

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

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

representative informing her that her employment was terminated 

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and someone else had taken her position. SAC~ 14. However, later2 , 

she was told that her termination was rescinded. Id. 

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

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

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

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

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

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

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

1] 

B. Procedural Background 

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

Superior Court of the District of Columbia. See Corrected Notice 

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

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

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

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

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

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

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

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

2 The Second Amended Complaint gives no indication as to when Ms. 

Arias' alleged termination was rescinded. 

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2016 Order [Dkt. No. 30]. That same day, she filed the Second 

Amended Complaint, which is the operative Complaint. 

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

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

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

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

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

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

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

eight claims. 

II. STANDARD OF REVIEW 

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

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

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

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

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

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

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

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

dismiss must not make any judgment about the probability of the 

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

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

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the plaintiff the benefit of all reasonable inferences derived 

from the facts alleged." Aktieselskabet AF 21. November 2001 v. 

Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir. 2008) (internal 

quotation marks and citations omitted) . A complaint will not 

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

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

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

III. ANALYSIS 

A. Counts 5 and Both Counts 7 

Ms. Arias has voluntarily dismissed her claims of negligence 

and negligent misrepresentation of material facts (Count 5), 

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

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

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

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

the remaining five claims. 

B. Count 1- Violation of Title VII 

1. Racial Discrimination 

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

discrimination based on race, national origin3 and retaliation. In 

3 Defendant argues that Ms. Arias cannot make a Title VII claim 

based on her national origin. Mot. at 20, citing Amiri v. Securitas 

Sec. Servs. USA, Inc., 35 F. Supp. 3d 41, 47 (D.D.C. 2014), aff'd, 

608 F. App'x 15 (D.C. Cir. 2015). Ms. Arias does not appear to be 

making an argument that she faced discrimination based on being 

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order to establish a prima facie case of racial discrimination 

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

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

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

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

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

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

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

protected class. 

Ms. Arias has also shown that she suffered an adverse 

employment action. An adverse employment action is "a significant 

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

promote, reassignment with significantly different 

from Nicragua separate and apart from discrimination based on race. 

Therefore, the Court will consider only the claim of discrimination 

based on race. 

4 Ms. Arias' reliance on Sparrow v. United Air Lines, Inc., 216 

F.3d 1111 (D.C. Cir. 2000) is not sufficient to overcome her 

pleading deficiencies. Ms. Arias is correct that she need not plead 

facts showing each of these elements in order to def eat a Motion 

to Dismiss. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 515 (2002). 

However, her Complaint still must put the Defendant on notice of 

her legal theory and must contain allegations entitling her to 

offer evidence to support the claims. Id. Ms. Arias does claim 

that she is Hispanic, but does not claim that she was fired because 

of her race. Instead, she argues that she was fired because of her 

participation in a protected activity. Opp. at 8. Consequently, 

Ms. Arias' allegations entitle her to produce evidence on her claim 

of retaliation, but not of racial discrimination. 

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responsibilities, or a decision causing a significant change in 

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

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

medical leave, Defendant's representative notified her that she 

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

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

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

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

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

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

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

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

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

plead this element of racial discrimination. 

Ms. Arias must also plead a causal connection between her 

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

because she conflates her claims of racial . discrimination and 

retaliation under Title VII. Addressing both of her Title VII 

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

5 Defendant denies that Ms. Arias was ever terminated. Mot. at 2, 

18, and 22. It is unclear from the Second Amended Complaint whether 

Plaintiff was paid while on medical leave, but it is clear that 

she was not paid between mid to late May 2015 and September 20, 

2015 when she returned to work. SAC ~~ 5, 14-16, 19 

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element of a racial discrimination claim because, "[t]he employer 

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

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

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

unpaid leave as evidence of the causal connection between her 

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

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

Id. 

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

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

actions, and does not identify any disparate treatment between her 

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

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

has not satisfied the third element of a Title VII racial 

discrimination claim. 

2. Retaliation 

However, Ms. Arias has successfully plead in her Second 

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

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

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

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

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

Cir. 2016). 

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

separate case against Defendant constitutes a protected activity. 

Protected activity includes having "made a charge, testified, 

assisted, or participated in any manner in an investigation, 

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

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

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

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

therefore plead that she engaged in a protected activity. 

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

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

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

Finally, Ms. Arias has adequately plead a causal connection 

between her deposition testimony and her unpaid leave of absence. 

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

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

Sanchez and the call terminating her employment establishes the 

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

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

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

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

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

VII. 

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C. Count 2- Breach of Contract 

Defendant has argued that Plaintiff may not bring a claim of 

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

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

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

employment contract, because by its very terms the agreement 

contemplates that either party may end the employment 

relationship, with or without cause.") 

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

clearly expressed contrary intent. . the parties have in mind 

merely the ordinary business contract for continuing employment, 

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

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

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

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

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

September 5, 2002). 

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

to show that the parties intended that termination be subject to 

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

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

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

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

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

allegations regarding the terms of his employment contract [were] 

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

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

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

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

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

515. 

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

was a contract employee under expressed terms with all contract 

rights and privileges afforded thereto by the District of 

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

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

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

termination, however temporary, may therefore support a claim for 

breach of contract. 

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

Dealing 

"All contracts in the District of Columbia contain an implied 

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

shall do anything which will have the effect of destroying or 

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

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

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

it evades the spirit of the contract, willfully renders imperfect 

performance, or interferes with performance by the other party to 

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

Defendant argues that this claim must be dismissed because 

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

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

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

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

allow her to go forward on this Count. 

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

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

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

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

discharge in violation of public policy is a limited exception to 

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

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

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

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

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

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

SAC~ 14. 

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

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

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

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

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

A.2d 28, 30 (D.C. Cir. 1991). A "very narrow exception to the atwill doctrine has been recognized in this jurisdiction when the 

sole reason for the employee's termination" violates public 

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

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

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

wrongful discharge based upon a statute that carries its own remedy 

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

VII as the public policy that Defendant violated when it allegedly 

terminated Ms. Arias. SAC ~ 74. 

It is well settled that Title VII affords both legal and 

equitable remedies to plaintiffs who establish a cause of action. 

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

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

termination claim based upon the public policy underlying Title 

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

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F. Count 6- Aggravated Assault 

Ms. Arias' aggravated assault claim cannot survive the Motion 

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

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

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

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

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

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

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

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

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

private right of action under a criminal statute"). 

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

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

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

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

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

(dismissing assault claim because the WCA was the sole remedy 

available) . 

Ms. Arias asserts that her aggravated assault claim would 

fall under the exception to the WCA for injuries specifically 

intended by the employer to be inflicted on the particular employee 

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

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

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

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

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

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

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

assertion that the Defendant "intentionally and recklessly" forced 

her to work with dangerous chemicals without the required use of 

I 

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

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

removal of a safety device or toleration of a dangerous condition 

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

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

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

84. 

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

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

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

presents substantial evidence that the assault was motivated by 

something entirely personal to the employee and unrelated to the 

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

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

PPE to its housekeeping staff. In the absence of any evidence of 

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a personal motive unrelated to Ms. Arias' employment, this Court 

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

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

citations omitted) . 

Count 6 must therefore be dismissed. 

IV. CONCLUSION 

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

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

Memorandum Opinion.6 

November /:)_, 2016 

United States District Judge 

Copies to: attorneys on record via ECF 

6 The Court calls Plaintiff's counsel to read- and take heed for 

the future- Defendant's footnote 1 at page 5 of its Reply. The 

Court totally agrees with the language contained therein. 

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