Omwenga v. United Nations Found.

CORINNE OMWENGA, Plaintiff, v. UNITED NATIONS FOUNDATION, Defendant.

Case No. 15-cv-0786 (TSC)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

September 29, 2020

MEMORANDUM OPINION

Plaintiff Corrine Omwenga brought this discrimination and retaliation suit against her former employer, Defendant United Nations Foundation (UNF). She alleged eight claims: (1) violation of the anti-retaliation provision of the False Claims Act (FCA), (2) common law wrongful termination in violation of District of Columbia public policy, (3) discrimination under the District of Columbia Human Rights Act (DCHRA), (4) retaliation under DCHRA, (5) discrimination based on national origin and race under Title VII of the Civil Rights Act of 1964 (Title VII), (6) discrimination based on sex under Title VII, (7) retaliation under Title VII, and (8) whistleblower retaliation under the National Defense Authorization Act (NDAA).

On September 30, 2019, this court granted summary judgment for UNF on the Title VII and DCHRA claims and denied summary judgment on the FCA, NDAA, and common law wrongful termination claims. (ECF No. 52, Mem. Op.; ECF No. 53, Order.) UNF has moved for reconsideration of the court's denial of summary judgment on those claims. (ECF No. 55.) For the reasons set forth below, the court will GRANT in part and DENY in part UNF's Motion for Reconsideration.

I. LEGAL STANDARD

A. Motion for Reconsideration

A court may grant a motion to reconsider a non-final order "at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities." Fed. R. Civ. P. 54(b). While Rule 54(b) does not specify the standard of review, courts in this Circuit apply the "'as justice requires' standard . . . , which requires 'determining, within the Court's discretion, whether reconsideration is necessary under the relevant circumstances.'" In Def. of Animals v. Nat'l Insts. of Health, 543 F. Supp. 2d 70, 75 (D.D.C. 2008) (citations omitted). Under this standard, interlocutory orders may be reconsidered "when the movant demonstrates (1) an intervening change in the law; (2) the discovery of new evidence not previously available; or (3) a clear error of law in the first order." Estate of Klieman v. Palestinian Auth., 923 F.3d 1115, 1122 (D.C. Cir. 2019) (quoting In re Vitamins Antitrust Litig., No. 99-197, 2000 WL 34230081 (D.D.C. Jul. 28, 2000)). The court's discretion is "subject to the caveat that where litigants have once battled for the court's decision, they should neither be required, nor without good reason permitted, to battle for it again." Singh v. George Wash. Univ., 383 F. Supp. 2d 99, 101 (D.D.C. 2005) (internal quotation marks omitted). The moving party bears the burden and must show that "some sort of 'injustice' will result if reconsideration is refused." Cobell v. Norton, 355 F. Supp. 2d 531, 540 (D.D.C. 2005).

B. Summary Judgment

Summary judgment is appropriate when there is no disputed genuine issue of material fact, and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A dispute of fact is "genuine" only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party."Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A dispute is "material" only when it involves facts "that might affect the outcome of the suit under the governing law." Id. In determining whether a genuine issue of material fact exists, the court must view all facts in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The moving party "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the 'pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . ' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp., 477 U.S. at 323. In response, the nonmoving party must "go beyond the pleadings" and identify specific facts showing a genuine disputed issue for trial. Id. at 324. To preclude summary judgment, the nonmovant must "provide evidence that would permit a reasonable jury to find [in his favor]." Laningham v. U.S. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987) (citations omitted).

In evaluating a motion for summary judgment, "the judge's function is not . . . to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Liberty Lobby, 477 U.S. at 249. The court must "eschew making credibility determinations" at the summary judgment stage. Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2017). However, "[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50 (citations omitted). "[C]onclusory assertions offered without any evidentiary support do not establish a genuine issue for trial." Wang v. Wash. Metro. Area Transit Auth., 206 F. Supp. 3d 46, 63 (D.D.C. 2016) (citing Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999)).

II. ANALYSIS

The facts of the case are set out in detail in the court's September 30, 2019 Memorandum Opinion. (Mem. Op. at 2-8.) Omwenga is a Black woman from Kenya who was employed by UNF as a compliance officer. (Id. at 2.) After other UNF employees complained about working with Omwenga, her supervisor David Burton spoke with her on February 5, 2019, regarding her communication skills and tone. (Id. at 3-6.) A week later, Burton attended a meeting with Omwenga and others on a project team, during which Burton called a "timeout" because of Omwenga's behavior. (Id. at 7-8.) UNF then terminated Omwenga on February 18, 2015, allegedly for her unprofessional behavior. (Id. at 8.) Omwenga claims she engaged in protected activity under the FCA and NDAA by reporting UNF's allegedly fraudulent activities on government contracts in December 2014, January 2015, and on February 4, 2015 (Id. at 5), and was terminated in retaliation for her protected activity. She asserts that UNF's proffered reason for her termination is pretextual.¹ (Id. at 8.)

A. Retaliation Claims

Omwenga claims that in terminating her for engaging in protected activity, UNF violated both the FCA and NDAA anti-retaliation provisions. This court held in its September 30, 2019 Memorandum Opinion that a reasonable jury could infer retaliation based on Omwenga's prima facie case and evidence of pretext. (Id. at 16-25.) UNF argues that two incorrect premises underlie the court's finding: UNF's failure to follow its progressive discipline policy for Omwenga, and UNF's discipline and temporal proximity between Omwenga's termination and her protected activity. (ECF No. 55-1, Def. Br., at 4-5.) UNF moves for reconsideration on theground that these findings were clear error because the court failed to consider controlling decisions and misunderstood the parties' evidence. (Id.)

1. Progressive Discipline Policy

UNF argues that the court's finding that UNF had not followed its progressive discipline policy was based on two incorrect factual premises: that Omwenga's supervisor did not refer her for coaching, as suggested by the discipline policy, and that UNF's Executive Director testified that he could only recall one person other than Omwenga being fired without following the progressive discipline policy. (Id. at 6.)

UNF's characterization of the court's ruling regarding pretext omits mention of several other undisputed facts that underlie the ruling. It is undisputed that Omwenga was first disciplined, through verbal counseling about her communication and professionalism skills, about one week before she was fired. (Mem. Op. at 6-7.) The court found this inconsistent with the guidelines in the UNF employee handbook encouraging UNF to work with employees. (Id. at 22.) It is also undisputed that UNF did not give Omwenga a written warning, decision-making leave, or an investigation suspension, which are all suggested disciplinary actions if an employee must be disciplined after verbal counseling. (Id.) These additional undisputed facts showed that UNF did not follow its progressive discipline policy in disciplining and ultimately firing Omwenga, and were part of the court's basis for finding that a reasonable jury could infer retaliation based on all of the evidence.

In deciding that a reasonable jury could infer retaliation, the court noted that UNF declined to refer Omwenga for coaching, even when it was suggested by the HR director. (Mem. Op. at 22-23.) UNF contends that the court's evaluation of the evidence regarding coaching is contradicted by the record; it asserts that the progressive discipline policy refers to only internalcoaching and that the unfollowed HR recommendation was for an outside coach. (Def. Br. at 6-7.) Therefore, it argues, Omwenga was not entitled to outside coaching under the progressive discipline policy. (Id.)

While the parties do not dispute that the discipline policy refers to coaching by "immediate supervisors" rather than HR's suggested external coach, the court did not suggest that UNF was required to provide an external coach. It did, however, consider the undisputed evidence that Omwenga's supervisor rejected HR's suggestion that Omwenga receive coaching on her communication skills and instead disciplined her through verbal counseling the next day. (Mem. Op. at 22-23.) On this basis, a reasonable fact-finder could conclude that after identifying problems with her performance, UNF failed to work with Omwenga, including providing her with coaching as suggested by its policy, before taking disciplinary action. Moreover, it is undisputed that UNF did not follow any of the other suggested steps in its progressive discipline policy, such as written warning, decision-making leave, and investigation suspension. (Id. at...