Omwenga v. United Nations Found.

244 F.Supp.3d 214

Corinne OMWENGA, Plaintiff,

v.UNITED NATIONS FOUNDATION, Defendant.

Case No. 15–cv–0786 (TSC)

United States District Court, District of Columbia.

Signed March 27, 2017

R. Scott Oswald, Andrew Witko, Pro Hac Vice, The Employment Law Group, P.C., Washington, DC, for Plaintiff.

Deborah Persis Kelly, David T. Schur, Blank Rome LLP, Washington, DC, for Defendant.

MEMORANDUM OPINION

TANYA S. CHUTKAN, United States District Judge

Plaintiff Corinne Omwenga brings this case against the United Nations Foundation ("UNF"), alleging violations of the False Claims Act ("FCA"), 31 U.S.C. § 3730(h), Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. , and the D.C. Human Rights Act, D.C. Code § 2.1401.01 et seq. ("DCHRA"). Specifically, she alleges that UNF discriminated against her when it declined to hire her for a director position and later terminated her employment, and further that UNF retaliated against her when she reported concerns about potential violations of federal law relating to grant funding. UNF has filed a motion to dismiss. (ECF No. 21). For the reasons set forth below, Defendant's motion is DENIED.

I. BACKGROUND

Plaintiff Corinne Omwenga was an employee of UNF between July 2014 and February 2015. (Second Am. Compl. ("Compl.") ¶¶ 49, 25). She is a Black woman who was born in Kenya and later immigrated to the United States, and she holds two master's degrees in science and business administration. (Compl. ¶¶ 21–22). Plaintiff states that she has "spent many years working with nonprofit organizations and working with grants from USAID and other government entities." (Id. ¶ 22). In June 2014, she applied for a Director of Budgets position with the Business Services, Business and Reporting ("BSBR") department of UNF, and though she was not selected, she was invited to interview for a Compliance Officer position in the same department. (Id. ¶¶ 45–47). UNF offered her the position, and she accepted and began working in July 2014. (Id. ¶¶ 48–49). UNF filled the Director position with Andrew McDermott, a white male who Plaintiff alleges holds a bachelor's degree and has "never worked for a non-profit and had no experience handling government funds prior to his employment with Defendant." (Id. ¶¶ 50–52).

In her position as Compliance Officer, Plaintiff developed policies and procedures for how UNF employees should manage the federal grants it receives. (Id. ¶ 59). Plaintiff also reviewed all procurements that were funded by these grants before they were approved by the Contracts department, in order to perform due diligence and ensure compliance with internal policies as well as federal laws and regulations. (Id. ¶ 62). In the course of this work, Plaintiff found numerous allegedly unlawful expenditures and conflicts of interest, and she reported these in a December 2014 e-mail to Camila Campo, whose position is not clear, Walter Cortés, the Chief Financial Officer of UNF, and David Burton, the Executive Director of BSBR. (Id. ¶ 76; Def. Ex. 2). She reported additional issues the following month and alleges that she received "pushback." (Compl. ¶ 113). Additionally, on February 4, 2015, Plaintiff met with Burton and Lara Sonti, Counsel to UNF and Senior Director of the Contracts department, to discuss her concerns about these expenditures and conflicts of interest. (Id. ¶ 129).

During this time, Plaintiff also came to believe she was performing work at a Director–level and deserved a higher salary. (See id. ¶¶ 88–96). On December 11, 2014, Plaintiff e-mailed Maxine Somerville, the Executive Director of the Human Resources department, and, after laying out examples of how the work she was performing was above and beyond that envisioned by the job description, requested that Somerville consider changing Plaintiff's title. (Id. ¶ 92; Def. Ex. 1). In this e-mail, Plaintiff also stated that "[i]t feels like I face disparate treatment in my department" because all others who report directly to Burton, the Executive Director of BSBR, have the title "Director." (Compl. ¶¶ 92–93; Def. Ex. 1).

On February 18, 2015, Plaintiff was notified that she had been terminated from her position. (Compl. ¶ 140). She alleges that Burton told her that UNF was simply "going in a different direction" and that a Human Resources representative, Kawanna Jenkins, told her that the termination was not performance-related. (Id. ¶¶ 140–42). The following week, Plaintiff filed a complaint of discrimination and retaliation with the U.S. Equal Employment Opportunity Commission, and she was issued a Notice of Right to Sue letter on March 3, 2015. (Id. ¶¶ 17–18).

Plaintiff first filed her Complaint under seal in May 2015, alleging substantive violations of the False Claims Act. (ECF No. 1). The United States elected not to intervene in March 2016, and the court subsequently ordered the case unsealed. (ECF Nos. 4, 5). Plaintiff filed her First Amended Complaint in May 2016, and Defendant moved to dismiss the following month. (ECF Nos. 6, 15). The parties then consented to the dismissal of some of Plaintiff's claims as well as the filing of a Second Amended Complaint, which was filed in July 2016. (ECF Nos. 17, 18, 19, 20). Defendant has again moved to dismiss. (ECF No. 21).

II. MOTION TO DISMISS STANDARD

A motion to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a claim tests the legal sufficiency of a complaint. See Browning v. Clinton , 292 F.3d 235, 242 (D.C. Cir. 2002). "To survive a motion to dismiss, 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, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim is plausible when the factual content allows the court to "draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Thus, although a plaintiff may survive a Rule 12(b)(6) motion even where "recovery is very remote and unlikely," the facts alleged in the complaint "must be enough to raise a right to relief above the speculative level." Twombly , 550 U.S. at 555–56, 127 S.Ct. 1955. Evaluating a 12(b)(6) motion is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal , 556 U.S. at 679, 129 S.Ct. 1937.

III. DISCUSSION

A. False Claims Act Retaliation Claim (Count I)

In Count I of her Complaint, Plaintiff first alleges that UNF violated the anti-retaliation provision of the FCA, 31 U.S.C. § 3730(h), when it terminated her after she investigated and reported conduct that she believed violated the False Claims Act. (Compl. ¶¶ 147–56). In order to state a retaliation claim under the FCA, Plaintiff must show "(1) that [she] engaged in protected activity (‘acts done ... in furtherance of an action under [the FCA]’); and (2) that [she] experienced discrimination ‘because of’ [her] protected activity." Shekoyan v. Sibley Int'l , 409 F.3d 414, 422 (D.C. Cir. 2005) (quoting 31 U.S.C. § 3730(h) ). Further, "[t]o establish the second element, the employee must demonstrate [both] that the employer had knowledge of the employee's protected activity and that the retaliation was motivated by the protected activity." Id. (citing United States ex rel. Yesudian v. Howard Univ. , 153 F.3d 731, 736 (D.C. Cir. 1998) ).

Where, as here, a plaintiff's normal job responsibilities include investigating and reporting legal compliance issues, the plaintiff "must overcome the presumption that they are merely acting in accordance with their employment obligations to put their employers on notice." United States ex rel. Williams v. Martin–Baker Aircraft Co. , 389 F.3d 1251, 1261 (D.C. Cir. 2004) (internal quotation omitted). While "[t]hreatening to file a qui tam suit or to make a report to the government ... clearly is one way to make an employer aware[,] ... it is not the only way," Yesudian , 153 F.3d at 744, as "when an employee acts outside [her] normal job responsibilities or alerts a party outside the usual chain of command, such action may suffice to notify the employer that the employee is engaging in protected activity," Martin–Baker Aircraft , 389 F.3d at 1261.

Plaintiff alleges that "[a]s part of her job [as Compliance Officer], [she] developed policies and procedures for Defendant on how to manage and administer USG funds." (Compl. ¶ 59). Plaintiff's work also involved "ensur [ing] that all procurement requirements as outlined in [UNF's] procurement policies and procedures were met before the vendor contract was drawn up." (Id. ¶ 62). In December 2014, Plaintiff claims that she became concerned "that Defendant was attempting to charge unallowable expenses against [a] government grant," and she "sent an e-mail to Camila Campo, copying Cortés and Burton, in which Plaintiff pointed out unallowable transactions." (Id. ¶¶ 75, 76). The following month, January 2015, Plaintiff "found over $100,000 in procurements and transactions that were illegally charged to" the government grant. (Id. ¶ 105). Plaintiff reported these problems and "received pushback," and then later that month Plaintiff again "pushed the issue," and was told by Burton to "talk offline." (Id. ¶¶ 113, 118). Plaintiff also alleges that she "found problems related to conflicts of interest," and she met with Burton, Executive Director of BSBR, and Sonti, Counsel and Senior Director of Contracts in BSBR, to discuss her concerns in early February. (Id. ¶ 124, 129). She later met with Cortés to discuss her concerns, and he allegedly urged her to "let it go." (Id. ¶ 139). To establish the elements of a retaliation claim, Plaintiff alleges she engaged in protected activity throughout December through February, that Defendant retaliated against her by terminating her employment, and the temporal proximity of the two events implies causation. (Id. ¶¶ 151–55).

Defendant argues that P...