Omene v. Accenture Federal Services ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BREE OMENE,
Plaintiff,
v. Case No. 1:18-cv-02414 (TNM)
ACCENTURE FEDERAL SERVICES,
Defendant.
MEMORANDUM OPINION
Bree Omene has sued her former employer, Accenture Federal Services (“Accenture”),
alleging that it subjected her to unlawful discrimination, retaliation, and harassment. Accenture
moves to dismiss Ms. Omene’s Second Amended Complaint. As Ms. Omene largely fails to
rebut or even address Accenture’s arguments, the Court will grant Accenture’s motion and
dismiss Ms. Omene’s Second Amended Complaint. But the Court will grant Ms. Omene leave
to file another amended complaint.
I.
Accenture provides management and technology services to government clients. Second
Am. Compl. ¶ 5, ECF No. 32. Ms. Omene began working as a software developer specialist
with Accenture in late 2014, and in June 2015, Accenture assigned her to a project for the U.S.
Postal Service. Id. ¶ 11. Johnny Wen was Ms. Omene’s manager on the Postal Service project.
Id. ¶ 12.
According to Ms. Omene, working under Mr. Wen was unpleasant, and “on multiple
occasions,” he “expressed a desire to remove [her] from his team.” Id. ¶¶ 14, 16. Ms. Omene is
African American, and Mr. Wen, who is Asian, allegedly wanted to build an all-Asian team. Id.
¶¶ 12–13, 15. Mr. Wen allegedly also complained that Ms. Omene, who was around 50 at the
time, was too old and was not a man. Id. ¶ 15, 17. According to Ms. Omene, Mr. Wen
reassigned her projects “to younger team members who were . . . 30 and under, male, and
Asian.” Id. ¶ 17. Ms. Omene complained to Human Resources, but they allegedly took no
action. Id. ¶ 21. Accenture eventually removed Ms. Omene from the Postal Service project—
allegedly at Mr. Wen’s direction—and reassigned her to a new project for “PCORI.” Id. ¶¶ 17,
27, 29.
But she had a bad experience there, too. She alleges that her new supervisor subjected
her to “daily abuse, intimidation, and harassment.” Id. ¶ 30. A different PCORI team member,
Kim Vay, allegedly “supervised and scrutinized [Ms. Omene’s] work unlike any other team
members,” “yelled at and belittled [Ms. Omene] in the presence of other employees,” “assigned
deadlines for tasks that she knew were impossible” for Ms. Omene to complete, and took other
unspecified “steps to ensure that [Ms. Omene] failed in [her] position.” Id. ¶ 31. Ms. Vay
allegedly wanted to replace Ms. Omene. Id. ¶ 35. According to Ms. Omene, when she asked
why Ms. Vay wanted to replace her, “[Ms. Vay] had no answer other than ‘because I can.’” Id.
¶ 36. Ms. Omene alleges that she again complained to Human Resources to no avail. Id. ¶¶ 40–
41, 43.
Ms. Omene alleges that the stress from work took a toll on her health. Id. ¶ 44. She
sought treatment for stress and anxiety, and her doctor placed her on disability leave. Id. ¶¶ 44–
45. Her doctor confirmed, she claims, that she suffered from “neck stiffness . . . and pain in her
arm [and] neck.” Id. ¶ 46. In November 2016, Ms. Omene’s doctor allegedly “updated
[Accenture] with information concerning [Mr. Omene’s] medical condition.” Id. ¶ 45.
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While Ms. Omene was “out on disability” in November 2016, Accenture terminated her.
Id. ¶ 49. She filed a Charge of Discrimination with the Equal Employment Opportunity
Commission (“EEOC”) exactly 300 days later, alleging that Accenture terminated her because of
her “age, race, national origin, and disability, retaliation, and color.” Id. ¶ 7. Ninety days after
the EEOC issued a Notice of Right-to-Sue, Ms. Omene filed this action. Id. ¶ 8.
Ms. Omene raises many claims for relief under six counts. First, she raises an age
discrimination claim under the Age Discrimination in Employment Act of 1967 (“ADEA”). Id.
¶¶ 51–57. Second, she claims discrimination based on race, gender, color, and national origin
under Title VII of the Civil Rights Act of 1964. Id. ¶¶ 58–64. Third, she claims discrimination
based on her disability under the Americans with Disabilities Act (“ADA”). Id. ¶¶ 65–74.
Fourth, she claims that Accenture interfered with her rights under the Family and Medical Leave
Act (“FMLA”) and its local counterpart (“DCFMLA”). Id. ¶¶ 75–80. 1 Fifth, she claims
Accenture retaliated against her for exercising her rights under the FMLA and DCFMLA. Id.
¶¶ 81–86. Finally, she claims that Accenture wrongfully terminated her employment. Id. ¶¶ 87–
90. Accenture has moved to dismiss all six counts. See Def.’s Mot. to Dismiss, ECF No. 33;
Def.’s Mem. in Supp. of Mot. to Dismiss (“Def.’s Mem.”), ECF No. 34. 2
II.
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of an action where a
complaint fails “to state a claim upon which relief can be granted.” To survive a motion to
1
“Under the FMLA, a plaintiff may state: (1) an interference claim under § 2615(a)(1), alleging that her employer
has restrained, denied, or interfered with her substantive rights under the Act, and/or (2) a retaliation claim under
§ 2615(a)(2), alleging that her employer has taken adverse action against her because she took leave or engaged in
activity protected by the Act, such as by filing a complaint.” Alford v. Providence Hosp., 945 F. Supp. 2d 98, 104
(D.D.C. 2013), aff’d, 561 F. App’x 13 (D.C. Cir. 2014). Count V explicitly specifies that it is a claim for retaliation,
so the Court considers Count IV to be a claim for interference.
2
The Court has jurisdiction over Ms. Omene’s claims under 28 U.S.C. § 1331, federal question jurisdiction, and
28 U.S.C. § 1367, supplemental jurisdiction.
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dismiss, a complaint must state a claim that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). To meet the “plausibility standard” and survive dismissal, a plaintiff must
“plead factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
In evaluating a motion to dismiss, courts must “treat the complaint’s factual allegations as
true . . . and must grant [the] plaintiff the benefit of all inferences that can be derived from the
facts alleged.” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (cleaned
up). But courts need not accept as true legal conclusions couched as factual allegations or draw
inferences unsupported by the facts set forth in the complaint. Grant v. Ent. Cruises, Inc., 282 F.
Supp. 3d 114, 116 (D.D.C. 2017). Ultimately, applying the motion to dismiss standard 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.
III.
Ms. Omene has conceded the claims in her Second Amended Complaint by failing to
address Accenture’s arguments for dismissal. First, Ms. Omene has conceded her claim for
wrongful termination. Accenture persuasively argued that Ms. Omene failed to allege a
connection between her termination and a public policy not already protected by another statute,
as required to state a claim for wrongful termination in the District of Columbia. See Def.’s
Mem. at 23–24 (citing Jones v. D.C. Water & Sewer Auth., 943 F. Supp. 2d 90, 94 (D.D.C.
2013)). Ms. Omene did not respond. See generally Pl.’s Opp’n, ECF No. 35. Nowhere in her
Opposition does she discuss “wrong termination” or any public policy underlying her claims. Id.
If a party opposes a motion but addresses only some of the movant’s arguments, the court
may treat the unaddressed arguments as conceded. Hopkins v. Women’s Div., Gen. Bd. of Glob.
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Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003), aff’d, 98 F. App’x 8 (D.C. Cir. 2004). More,
“[i]t is not enough to merely mention a possible argument in the most skeletal way, leaving the
court to do counsel’s work, create the ossature for the argument, and put flesh on its bones . . . .
[A] litigant has an obligation to spell out its arguments squarely and distinctly, or else forever
hold its peace.” Schneider v. Kissinger, 412 F.3d 190, 200 (D.C. Cir. 2005) (quoting United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)). The Court will therefore treat Accenture’s
arguments as conceded, and Ms. Omene’s wrongful termination claim (Count VI) will be
dismissed.
Ms. Omene conceded her claim under the ADA, too. It is not clear from the Second
Amended Complaint whether Ms. Omene’s ADA claim is for intentional discrimination or for
failure to accommodate. Accenture argued that the Second Amended Complaint fails to state a
claim under either theory. Def.’s Mem. at 16–18. For example, Accenture highlighted that the
Second Amended Complaint lacked facts showing that Ms. Omene was a qualified individual
under the ADA and that nowhere does she allege that she requested a reasonable
accommodation. Id. Again, Ms. Omene chose not to respond. See generally Pl.’s Opp’n. She
does not discuss her “disability” or whether she is a “qualified individual,” nor does she suggest
that she requested a “reasonable accommodation.” Id. In fact, those terms do not appear in her
Opposition. Id. So Accenture’s arguments are conceded, Hopkins, 284 F. Supp. 2d at 25, and
Ms. Omene’s ADA claim (Count III) will be dismissed.
So too with Ms. Omene’s claims under the FMLA and DCFMLA. To state a claim under
for interference, Ms. Omene must allege facts showing, among other things, that she gave
Accenture adequate notice of her intention to take FMLA leave and Accenture denied or
otherwise interfered with her right to take leave. See Hodges v. District of Columbia, 959 F.
5
Supp. 2d 148, 155 (D.D.C. 2013). And to state a claim for retaliation, Ms. Omene must allege
that she engaged in activity protected by the statutes, among other things. See Gordon v. U.S.
Capitol Police, 778 F.3d 158, 161–62 (D.C. Cir. 2015).
As Accenture argued in its Motion to Dismiss, Def.’s Mem. at 18–21, the Second
Amended Complaint lacks these necessary allegations. Again Ms. Omene did not respond to
Accenture’s arguments. See generally Pl.’s Opp’n. Her Opposition does not discuss, or even
mention, the FMLA/DCFMLA, any alleged interference or activity protected by those statutes,
or anything of the kind. The Court therefore treats Accenture’s arguments as conceded, Hopkins,
284 F. Supp. 2d at 25, and Counts IV and V will be dismissed.
Ms. Omene has also conceded her gender and national origin discrimination claims under
Title VII. As Accenture points out, nowhere in her Second Amended Complaint does Ms.
Omene state her national origin, and so nothing in the Second Amended Complaint ties her
national origin to an adverse employment action. Def.’s Mem. at 13–14. More, Accenture
argued that Ms. Omene failed to exhaust her administrative remedies for her gender
discrimination claim, noting that she did not allege sex discrimination in her EEOC complaint.
Id. at 14–15. Yet again, Ms. Omene did not address these arguments. See generally Pl.’s Opp’n.
In fact, the words “gender,” “sex,” and “national origin” make no appearance in her Opposition.
Id. The Court therefore treats Accenture’s arguments as conceded, Hopkins, 284 F. Supp. 2d at
25, and the Court will dismiss Ms. Omene’s gender and national origin discrimination claims
under Title VII.
So what is left of Ms. Omene’s claims? Ms. Omene defends only her age discrimination
claim under the ADEA (Count I) and her claim for race discrimination under Title VII (Count
II). She also responds to some of Accenture’s arguments about Title VII retaliation and Title VII
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hostile work environment claims—although neither of those claims are explicitly enumerated in
the Second Amended Complaint. But the Court will dismiss these claims, too.
For her discrimination and retaliation claims, Ms. Omene must allege that she suffered an
adverse employment action. See, e.g., Baloch v. Kempthorne, 550 F.3d 1191, 1196, 1198 (D.C.
Cir. 2008). 3 For this, Ms. Omene relies on her transfer to the PCORI project. Pl.’s Opp’n at 4–
6. But she has not alleged facts showing that her transfer was an adverse employment action,
and any claims arising from her transfer are time-barred.
In the discrimination context, adverse actions arise from “a significant change in
employment status, such as hiring, firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing a change in benefits.” Baird v. Gotbaum, 662
F.3d 1246, 1248 (D.C. Cir. 2011). So typically, “[a]n employment decision does not rise to the
level of an actional adverse action . . . unless there is a tangible change in the duties or working
conditions constituting a material employment disadvantage.” Walden v. Patient-Centered
Outcomes Research Inst., 304 F. Supp. 3d 123, 133–34 (D.D.C. 2018) (cleaned up). While Ms.
Omene alleges that Accenture reassigned her to the PCORI project, nowhere does she allege that
her reassignment involved significantly different responsibilities, a change in benefits, or a
tangible change in the duties or working conditions.
She certainly did not enjoy her time on the PCORI project. But “[n]ot everything that
makes an employee unhappy is an actionable adverse action.” Broderick v. Donaldson, 437 F.3d
1226, 1233 (D.C. Cir. 2006). And “purely subjective injuries, such as dissatisfaction with a
reassignment, public humiliation, or loss of reputation, are not adverse actions.” Holcomb v.
Powell, 433 F.3d 889, 902 (D.C. Cir. 2006) (cleaned up). Perhaps the transfer did rise to the
3
The standard for what qualifies as an adverse employment action for retaliation is slightly different from the
standard for discrimination. See Mogenhan v. Napolitano, 613 F.3d 1162, 1166 (D.C. Cir. 2010). But, as discussed
below, that distinction does not matter here because Ms. Omene’s claims related to her transfer are untimely.
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level of a material employment disadvantage. But that is not clear from this Amended
Complaint.
In any event, claims arising from Ms. Omene’s transfer are time-barred. Under Title VII
and the ADEA, a plaintiff must exhaust her administrative remedies by filing an EEOC charge
outlining her allegations within 300 days of the allegedly discriminatory or retaliatory act. See
42 U.S.C. § 2000e-5(e) (Title VII); 29 U.S.C. § 626(d)(1) (“ADEA”). Accenture removed Ms.
Omene from the Postal Service project in January 2016 and placed her on the PCORI project in
March 2016. Second Am. Compl. ¶¶ 27, 29. But Ms. Omene did not file her EEOC charge until
September 2017, well past the 300-day deadline. Id. ¶ 7.
Ms. Omene’s termination, however, certainly is an adverse employment action. See
Baird, 662 F.3d at 1248. Even so, her discrimination claims under Title VII and ADEA fail
because she has not plausibly alleged that Accenture terminated her because of her race or age.
According to Ms. Omene, her time on the PCORI team was unpleasant: her supervisor allegedly
yelled at her, assigned her unreasonable tasks, and belittled her in front of others. Second Am.
Compl. ¶ 31. But Ms. Omene does not plausibly tie Ms. Vay’s comments to any protected
characteristic, nor does she plausibly allege that her race or age were motivating factors behind
her termination. True, Ms. Omene alleges that Mr. Wen sought to remove her from the Postal
Service team based, in part, on her race. Id. ¶¶ 14–17. But she does not allege that Ms. Vay
played any role in her ultimate termination from a different project over eight months later.
The two elements of a discrimination claim are that the plaintiff (1) suffered an adverse
employment action (2) because of her protected status. Baloch, 550 F.3d at 1196. Thus, Ms.
Omene’s failure to tie her termination plausibly to her protected characteristics is fatal. See, e.g.,
Forkkio v. Powell, 306 F.3d 1127, 1130 (D.C. Cir. 2002) (“To state a prima facie case of
8
disparate treatment discrimination under [Title VII], the plaintiff must establish that . . . the
[adverse] action gives rise to an inference of discrimination (that is, an inference that his
employer took the action because of his membership in the protected class).”).
Accenture raised all these points in its Motion to Dismiss. Def.’s Mem. at 11–13. But
Ms. Omene failed to address Accenture’s arguments that she had not linked her protected
characteristics to her termination in November 2016. Indeed, she never mentioned her
November 2016 termination in her opposition, focusing instead on her transfer to the PCORI
project. See generally Pl.’s Opp’n. Thus, the Court will again treat Accenture’s meritorious
arguments as conceded, Hopkins, 284 F. Supp. 2d at 25, and Ms. Omene’s discrimination claims
(Counts I and II) will be dismissed.
For similar reasons, any retaliation claims under Title VII or the ADEA also fail. 4 The
Second Amended Complaint does not allege that Accenture terminated Ms. Omene in retaliation
for engaging in activity protected by Title VII or the ADEA. And for a retaliation claim to
survive dismissal, a plaintiff’s complaint must contain enough factual matter, accepted as true, to
establish plausibly a causal link between protected activity and an adverse employment action.
Howard R.L. Cook & Tommy Shaw Found. ex rel. Black Emps. of Library of Cong., Inc. v.
Billington, 737 F.3d 767, 772 (D.C. Cir. 2013).
Accenture forcefully argued that Ms. Omene had failed to plausibly allege a causal link
between any protected activity and her termination, and any protected activity did not occur
close enough to her termination to give rise to an inference of retaliation. See Def.’s Mem. at
22–23. But Ms. Omene ignored those arguments in favor of arguing that there was a temporal
4
It is not at all clear that Ms. Omene intended to raise ADEA or Title VII retaliation claims in her Second Amended
Complaint. The original Complaint contained a separate count for retaliation, see Compl. ¶¶ 36–39, that is not in the
Second Amended Complaint. Indeed, the Second Amended Complaint references retaliation only in the context of
the FMLA and DCFMLA. See Second Am. Compl. at 13.
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link between the protected activity and her transfer to PCORI. So the Court will treat
Accenture’s meritorious arguments as conceded, Hopkins, 284 F. Supp. 2d at 25, and any
retaliation claims (Counts I and II) will be dismissed.
Ms. Omene alleges that she complained about Ms. Vay leading up to her termination, but
as already discussed, Ms. Omene has not plausibly tied Ms. Vay’s conduct to any protected
characteristic. More, the specific content of her complaints is not alleged, so the Court cannot
reasonably infer whether those complaints qualify as protected activity. More still, the last
explicitly alleged complaint occurred in June 2016, and that is well outside the typical three-
month window allowed in this District for showing causation based on temporal proximity alone.
See McIntyre v. Peters, 460 F. Supp. 2d 125, 133 (D.D.C. 2006). And while Ms. Omene alleges
that some of her complaints occurred after June 2016, she specifies no dates that would allow the
Court to consider whether there is sufficient temporal proximity to her termination to infer a
causal connection.
Finally, Ms. Omene’s Title VII hostile work environment claim will also be dismissed. 5
Accenture offered four distinct arguments for why Ms. Omene’s Title VII harassment should be
dismissed. First, it argued that she failed to allege conduct severe or pervasive enough to create
a hostile work environment based on her race, color, gender, or national origin. Def.’s Mem. at
25–26. Second, according to Accenture, Ms. Omene failed to allege facts connecting the
purported “harassment” to her protected characteristics. Id. at 26. Third, she failed to exhaust
her administrative remedies because she did not sufficiently raise the issue in her EEOC
complaint. Id. at 26–27. Finally, Accenture argued that any harassment claim is time-barred
5
It is far from clear that Ms. Omene intended to bring such a claim, but “it appears from [her] opposition to
Defendant’s . . . motion to dismiss that [she] wishes to assert a hostile work environment claim now.” Bing v.
Architect of Capitol, 300 F. Supp. 3d 53, 59 (D.D.C. 2017).
10
because Ms. Omene failed to file her EEOC charge within 300 days of any instance of
harassment. Id. at 27–28.
Ms. Omene addressed only one of these arguments: “The conduct Plaintiff has alleged is
severe and pervasive enough to constitute a hostile work environment.” Pl.’s Opp’n at 5. The
Court will treat Accenture’s three other arguments as conceded. Hopkins, 284 F. Supp. 2d at 25.
That alone is grounds for dismissal. See, e.g., Park v. Howard Univ., 71 F.3d 904, 907 (D.C.
Cir. 1995) (“A Title VII lawsuit following the EEOC charge is limited in scope to claims that are
like or reasonably related to the allegations of the charge and growing out of such allegations.”
(cleaned up)).
More, Ms. Omene conceded that “courts in this District have regularly dismissed hostile
work environment allegations where the Plaintiff has alleged that she was subjected to yelling or
criticism,” like she alleges here. Pl.’s Opp’n at 5–6. She argues, however, that her case is
different because she complained to the Human Resources Department to no avail. Id. at 6. But
while her complaints are relevant to whether Accenture “knew or should have known about the
harassment, but nonetheless failed to take steps to prevent it,” they are less salient to the separate
issue of whether “the harassment was severe to a degree which affected a term, condition, or
privilege of employment,” Peters v. District of Columbia, 873 F. Supp. 2d 158, 189 (D.D.C.
2012). Ms. Omene has cited no authority suggesting otherwise. Thus, because Ms. Omene has
failed to address the bulk of Accenture’s arguments or allege specific facts showing severe or
pervasive harassment, her hostile work environment claim will be dismissed.
* * *
While this is Ms. Omene’s third complaint and Accenture has reasonable arguments for
dismissal with prejudice, the Court finds that it is appropriate to grant her one more bite at the
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apple. Ms. Omene filed her First Amended Complaint while she was proceeding pro se. And
she filed her Second Amended Complaint while she was recovering from surgery and shortly
after she retained counsel, limiting counsel’s ability to get up to speed. See Pl.’s Mot. for
Extension, ECF No. 26. More, while Ms. Omene did not explicitly raise ADEA or Title VII
retaliation or hostile work environment counts in her Second Amended Complaint, it is apparent
from the parties’ briefing that she does intend to include such claims. She should have an
opportunity flesh them out. See Bing v. Architect of the Capitol, 300 F. Supp. 3d 53, 58–59
(D.D.C. 2017). Thus, the Court will grant Ms. Omene leave for 30 days to amend her complaint.
IV.
For these reasons, the Defendant’s Motion to Dismiss will be granted and Ms. Omene’s
Second Amended Complaint will be dismissed without prejudice. The Court, however, will
grant Ms. Omene leave to file a Third Amended Complaint. A separate order will issue.
2019.09.30
12:19:13 -04'00'
Dated: September 30, 2018 TREVOR N. McFADDEN, U.S.D.J.
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