United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 11, 2007 Decided January 22, 2008

No. 06-7161

FADY KASSEM,

APPELLANT

v.

WASHINGTON HOSPITAL CENTER,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 05cv02352)

Brian W. Shaughnessy argued the cause and filed the briefs

for appellant.

Keith J. Harrison argued the cause for appellee. With him

on the brief was Daniel M. Creekman.

Before: ROGERS, GARLAND, and KAVANAUGH, Circuit

Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge: Appellant Fady Kassem brought

this diversity action charging his former employer, Washington
2

Hospital Center, with wrongful discharge and intentional

infliction of emotional distress. The district court dismissed

each claim, under Federal Rule of Civil Procedure 12(b)(6), for

failure to state a claim upon which relief can be granted. We

affirm in part and reverse in part. 

I

Because the district court dismissed Kassem’s complaint

pursuant to Rule 12(b)(6), the following description of the facts

treats the complaint’s allegations as true and draws all

reasonable inferences in Kassem’s favor. See, e.g., Gilvin v.

Fire, 259 F.3d 749, 756 (D.C. Cir. 2001).

Prior to his discharge in 2003, Kassem worked as a nuclear

medical technologist at Washington Hospital Center (WHC).

WHC had sponsored Kassem, an Australian national, for a work

visa. According to the complaint, Kassem observed and

reported numerous violations of Nuclear Regulatory

Commission (NRC) regulations during his tenure at WHC. The

hospital’s administration, however, ignored his reports and

discouraged him from bringing violations to its attention.

Compl. ¶¶ 14-20.

On July 20, 2003, a serious violation of NRC regulations

occurred at the hospital. Lawrence Dioh, a WHC nuclear

technician, was injected with radioactive dye by another hospital

employee without the knowledge and approval of a physician.

Thereafter, WHC launched a sham investigation intended to

establish that it was Kassem who injected the dye, as retribution

for his previous reporting of regulatory violations. The hospital

fabricated evidence and pressured Kassem to corroborate it.

Compl. ¶¶ 23-24. One member of the hospital’s investigative

team told him that, if he said “‘what they wanted to hear to make

the investigation complete, then he would be able to save his
3

1

Kassem’s original complaint also identified a breach of contract

claim, but his opposition to the motion to dismiss recast the claim as

one for wrongful discharge, and the district court treated it as such. 

visa and his livelihood and wouldn’t be kicked out of the

country.’” Id. ¶ 24.

 Kassem, however, refused to cooperate with the

investigation. “Recognizing that he himself as well as the

Washington Hospital Center had a duty to inform the NRC

accurately of the violations, [Kassem] declined to participate in

[WHC’s] cover-up of its regulatory infractions.” Id. The

“consequence[] of his refusal [was] the termination of his

employment,” id., which took place on August 15, 2003, id. ¶

26. Ten days later, on August 25, WHC “made false statements

about [Kassem] to the NRC with the intent of inducing the NRC

to initiate disciplinary action against” him. Id. ¶ 48. In early

January 2005, the NRC completed its own investigation and

hearing. The Commission dismissed the charges against

Kassem for insufficient evidence and initiated proceedings

against WHC. Id. ¶ 27.

In December 2005, Kassem sued WHC in the United States

District Court for the District of Columbia, invoking the court’s

diversity jurisdiction. Kassem asserted two claims under

District of Columbia law: wrongful discharge and intentional

infliction of emotional distress (IIED).1

 WHC responded with

a motion under Rule 12(b)(6), asking the district court to dismiss

Kassem’s complaint for failure to state a claim upon which relief

can be granted. 

The district court granted WHC’s motion as to both claims.

The court dismissed the wrongful discharge claim on the basis

of the District of Columbia’s employment-at-will doctrine.

Although the court acknowledged that the District recognizes a
4

2

Kassem does not dispute that he was an at-will employee of

WHC. See Appellant’s Br. 8-9.

public policy exception to that doctrine, it found the exception

unavailable because the statute that created the public policy

upon which Kassem relied provided its own “‘specific and

significant remedy.’” Kassem v. Wash. Hosp. Ctr., No. 05-2352,

2006 WL 2474098, at *2 (D.D.C. Aug. 25, 2006) (quoting

Nolting v. Nat’l Capital Group, Inc., 621 A.2d 1387, 1390 (D.C.

1993)). The court dismissed Kassem’s IIED claim on the

ground that his allegations were based on “purely occupational

concerns with purely occupational consequences,” which the

court found did not satisfy the elements of the tort of IIED under

D.C. law. Id. at *4. 

II

We review de novo a district court’s dismissal of a

complaint under Rule 12(b)(6). Sparrow v. United Air Lines,

Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). In so doing, we

“must accept as true all of the factual allegations contained in

the complaint.” Erickson v. Pardus, 127 S. Ct. 2197, 2200

(2007) (citing Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1965

(2007)). Applying this standard, we affirm the dismissal of

Kassem’s wrongful discharge claim, but reverse the dismissal of

his IIED claim. 

A

“It has long been settled in the District of Columbia that 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., 597 A.2d 28, 30 (D.C. 1991) (citing, inter alia,

Pfeffer v. Ernst, 82 A.2d 763, 764 (D.C. 1951)).2

 In Adams,

however, the District of Columbia Court of Appeals recognized
5

a “very narrow” public policy exception to the at-will

employment doctrine: “a discharged at-will employee may sue

his or her former employer for wrongful discharge when the sole

reason for the discharge is the employee’s refusal to violate the

law, as expressed in a statute or municipal regulation.” Id. at 34.

Kassem contends that his suit falls within the Adams public

policy exception because WHC terminated him in retaliation for

his refusal to participate in a sham investigation that violated

NRC regulations. See Pl.’s Opp’n to Mot. to Dismiss at 5-6;

Compl. ¶ 35. Those regulations make it unlawful for licensees

and employees of licensees, among others, to “[d]eliberately

submit to the NRC [or] a licensee . . . information that the

person submitting the information knows to be incomplete or

inaccurate in some respect material to the NRC.” 10 C.F.R. §

30.10(a)(2). 

The public policy exception was itself limited in Nolting v.

National Capital Group, Inc., in which the D.C. Court of

Appeals held the exception unavailable “where the very statute

creating the relied-upon public policy already contains a specific

and significant remedy for the party aggrieved by its violation.”

621 A.2d at 1390. As the district court correctly held, Nolting

controls this case. The NRC regulations upon which Kassem

relies for his public policy protection were promulgated pursuant

to the Energy Reorganization Act (ERA), 42 U.S.C. § 5801 et

seq. See Deliberate Conduct by Unlicensed Persons, 63 Fed.

Reg. 1890, 1896 (Jan. 13, 1998). And that Act contains its own

remedy for retaliation against nuclear-safety whistleblowers. 

Section 5851 of the ERA provides that an employer may not

“discharge . . . or otherwise discriminate against any employee”

because the employee “notified his employer of an alleged

violation of this chapter” or “refused to engage in any practice

made unlawful by this chapter . . . , if the employee has

identified the alleged illegality to the employer.” 42 U.S.C. §
6

3

For the first time on appeal, Kassem contends that the ERA’s

remedy was effectively unavailable to him because his discharge led

to financial distress and withdrawal of his visa, which in turn caused

him to depart for Australia. Kassem never raised this argument in the

district court, and it is therefore waived. See, e.g., United States v.

Gartmon, 146 F.3d 1015, 1029 (D.C. Cir. 1998); District of Columbia

v. Air Florida, Inc., 750 F.2d 1077, 1084 (D.C. Cir. 1984). 

5851(a)(1). “Any employee who believes that he has been

discharged or otherwise discriminated against” in violation of §

5851(a) may file a complaint with the Secretary of Labor within

180 days after the violation. Id. § 5851(b)(1). The filing of a

complaint triggers an administrative process in which the

Secretary must conduct an investigation and issue an order

either providing relief or denying the complaint. See id. §

5851(b)(2)(A). If the Secretary determines that a violation has

occurred, “the Secretary shall order the person who committed

such violation to (i) take affirmative action to abate the

violation, and (ii) reinstate the complainant to his former

position together with the compensation (including back pay)

[and] privileges of his employment.” Id. § 5851(b)(2)(B). The

Secretary may also order the payment of compensatory

damages, costs, and expenses, including attorneys’ fees. See id.

Like the D.C. statute at issue in Nolting, ERA § 5851

provides a “specific and significant remedy for the party

aggrieved by its violation.” Nolting, 621 A.2d at 1390.

Although Kassem insists that “he was not required” to pursue

the § 5851 remedy, Appellant’s Br. 13, Nolting holds that a

plaintiff cannot “eschew the administrative remedy and instead

obtain recovery against the employer on a tort theory of

wrongful discharge under the narrow ‘public policy’ exception

to the employment-at-will doctrine.” Nolting, 621 A.2d at

1387.3
7

Finally, Kassem asserts that the remedy provided by § 5851

cannot displace his wrongful discharge claim because it contains

a “nonpreemption” provision. That provision states that § 5851

“may not be construed to expand, diminish, or otherwise affect

any right otherwise available to an employee under Federal or

State law to redress the employee’s discharge. . . .” 42 U.S.C.

§ 5851(h). But the deficiency in Kassem’s wrongful discharge

claim is not that § 5851 preempts it, but that the District’s own

common law extinguishes it when the statute giving rise to the

public policy at issue contains an alternative remedy -- as § 5851

does here. The district court was therefore correct in dismissing

Kassem’s wrongful discharge claim.

B

“To establish a prima facie case of intentional infliction of

emotional distress [under D.C. law], a plaintiff must show (1)

extreme and outrageous conduct on the part of the defendant

which (2) either intentionally or recklessly (3) causes the

plaintiff severe emotional distress.” Larijani v. Georgetown

Univ., 791 A.2d 41, 44 (D.C. 2002). Characterizing Kassem’s

allegations as “all revolv[ing] around purely occupational

concerns with purely occupational consequences,” Kassem,

2006 WL 2474098, at *4, the district court ruled that a claim of

IIED was unavailable. It is correct that “generally, employeremployee conflicts do not rise to the level of outrageous

conduct” required to satisfy the first element of an IIED claim.

Duncan v. Children’s Nat’l Med. Ctr., 702 A.2d 207, 211-12

(D.C. 1997). If the conduct at issue is otherwise outrageous,

however, a plaintiff’s “status as an employee does not materially

affect the sufficiency of her complaint.” Larijani, 791 A.2d at

45 n.3; see King v. Kidd, 640 A.2d 656, 677-78 (D.C. 1993)

(stating that a supervisor’s participation in retaliating against an

employee who had complained of sexual harassment supported

an IIED claim because such conduct “cannot be considered
8

4

See, e.g., Gionfriddo v. Town of Cromwell, 2007 WL 1346919,

at *4 (D. Conn. May 7, 2007) (holding that the plaintiff stated an IIED

claim where his employer knowingly made false statements to police,

implicating him in thefts, in retaliation for his complaints regarding

lax security); Caesar v. Hartford Hosp., 46 F. Supp. 2d 174, 180 (D.

Conn. 1999) (holding that a plaintiff stated an IIED claim where her

employer falsely reported misconduct to the state Department of

Public Health “to retaliate against her and jeopardize her profession”);

Taiwo v. Vu, 822 P.2d 1024, 1029-30 (Kan. 1991) (affirming a verdict

for IIED where an employer intentionally made a false report to the

police concerning an employee who had just resigned); Engrum v.

Boise S. Co., 527 So. 2d 362, 365 (La. Ct. App. 1988) (holding that an

employee stated an IIED claim where he alleged that his employer

falsely reported to the sheriff that he had forged a paycheck).

merely as an instance of typical ‘employer-employee

conflicts’”); Howard Univ. v. Best, 484 A.2d 958, 986 (D.C.

1984) (upholding an IIED claim based on a supervisor’s sexual

harassment of an employee, while rejecting an IIED claim based

on the supervisor’s interference with the employee’s

professional responsibilities).

In Carter v. Hahn, the D.C. Court of Appeals held that

reporting false information to the police can constitute

outrageous conduct for the purpose of stating an IIED claim.

See 821 A.2d 890, 895 (D.C. 2003). In that case, the defendant

store owner intentionally gave the police false information about

the plaintiff, claiming that she was the person who had cashed

a stopped check at the defendant’s store. No District of

Columbia case has suggested that Carter does not apply in the

employment context. Moreover, many state courts, and federal

courts applying state law, have held that the intentional filing of

a false report about an employee with government authorities

can be sufficiently outrageous to state an IIED claim.4

 Indeed,

in a case similar to Kassem’s, the Ohio Supreme Court held that

an employee properly alleged a cause of action for IIED where
9

his employer had made him the target of a federal investigation

in order to cover up the employer’s own misconduct. See Russ

v. TRW, Inc., 570 N.E.2d 1076, 1082-83 (Ohio 1991). In so

holding, the court rejected the contention that the verdict in the

employee’s favor should be overturned because the actions of

which he complained arose in the context of at-will

employment. Id.; cf. Graham v. Commonwealth Edison Co.,

742 N.E.2d 858, 867-68 (Ill. App. Ct. 2000) (acknowledging

that “courts often hesitate to find a claim for [IIED] in

employment situations,” but finding such a claim properly stated

where the employer, in retaliation for the employee reporting

nuclear safety violations to the NRC, targeted the employee in

a sham investigation in which it intentionally spread false

allegations of his misconduct).

In granting WHC’s motion to dismiss Kassem’s IIED claim,

the district court relied upon the D.C. Court of Appeals’ decision

in Kerrigan v. Britches of Georgetowne, Inc., 705 A.2d 624

(D.C. 1997). In Kerrigan, the plaintiff alleged that his employer

“targeted him for a sexual harassment investigation,

manufactured evidence against him in order to establish a false

claim of sexual harassment, leaked information from the

investigation to other employees, and unjustifiably demoted him

to the position of store manager in order to promote a woman to

his position.” 705 A.2d at 628. Finding that the employer’s

actions fell within the category of “employer-employee conflicts

[that] do not . . . rise to the level of outrageous conduct,” the

Court of Appeals held the plaintiff’s allegations insufficient to

state a claim of IIED. Id. (alteration in original) (internal

quotation marks omitted).

But Kerrigan does not decide this case. Kerrigan did not

involve a false report to government authorities. Rather, all of

the allegations involved acts that took place within the

workplace and that had no consequence other than an adverse
10

employment action (the plaintiff’s demotion). Kassem, by

contrast, does not merely plead intra-workplace mistreatment.

He further alleges that, after WHC fired him from his position,

it intentionally filed a false charge against him with the NRC --

a charge that could have prevented him from working as a

nuclear technologist and subjected him to criminal penalties.

See Compl. ¶¶ 48, 50; see also 10 C.F.R. § 30.64 (providing that

violations of § 30 are subject to criminal penalties). WHC did

so knowing that the charge was false, and with the intention of

“avoid[ing] NRC regulatory action against” the hospital itself.

Compl. ¶ 51. There is nothing in Kerrigan that limits the

applicability of Carter in such circumstances. Accordingly,

Kassem’s complaint cannot be dismissed at the pleading stage.

III

For the foregoing reasons, we affirm the dismissal of the

plaintiff’s wrongful discharge claim, but reverse the dismissal

of his IIED claim.

Affirmed in part and reversed in part.