Hagos v. Pompeo ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LYDIA HAGOS,
Plaintiff,
v.
No. 18-cv-2647 (DLF)
MICHAEL R. POMPEO,
Defendant.
MEMORANDUM OPINION AND ORDER
Lydia Hagos, appearing pro se, brings this action against the Department of State (“State”),
alleging that she was subjected to discrimination while employed by a State contractor. Hagos
bases her discrimination claims on her disability and national origin. She further alleges that she
faced retaliation and a hostile work environment. Before the Court is State’s Motion to Dismiss
under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Dkt. 21 (Mot. to Dismiss). For the
reasons stated below, the Court will grant State’s motion in part and deny it in part.
I. BACKGROUND
A. Facts
On March 21, 2005, Federal Management Systems, Inc. extended a job offer to Hagos to
work on a State Department contract as an accountant. See Dkt. 1 (Compl.) at 25. Hagos worked
for “contractor FMS . . . for many years” when “Raven Tek . . . took over the contracting
company.” Id. at 2; see https://www.raventek.com/about-us (describing contracting services with
the federal government). Hagos alleges that RavenTek “only paid” her. Id. It was “never involved
in” her job duties, but it “got involved after” she notified the company about “the harassment” that
1
“was getting overwhelming.” 1 Id. In addition to harassment, Hagos alleges, among other things,
that she “was under a lot of stress and was sick.” Id. at 8. Hagos recounts events dating as far back
as 2012, when she “was hospitalized [and] diagnosed with generalized panic attack, stress related.”
Id. at 5. In May 2015, Hagos suffered “a heart attack due to stress” and was on short-term
disability until September 7, 2015. Id. at 8. When Hagos returned to her job in September, she
worked four days weekly until January 2016, when she was told that she could no longer work four
days a week and therefore was “denied [an] accommodation.” Id.
According to Hagos, she “was fired” by State employee “Mr. Hodges,” id. at 2, who at
some point was her supervisor. See id. at 4. Hagos alleges that Hodges had “shown his dislike
toward [her] and want[ed] to fire [her] ever since 2012, but [he] was not successful [since] upper
management was aware of his behavior [toward] many staff not only contractors but also civil
service employees.” Id. at 11. Hagos alleges that it was Hodges who “told” her (1) on January 15,
2016, that she could no longer “work 4 days a week per [his supervisor] Mr. Kidane,” id. at 8, and
(2) on January 20, that “Kidane said” that she was “not mentally capable of doing [her] work.” Id.
Finally, Hagos alleges that on May 19, 2016, Hodges “sent an email to management/Med and
Raventec, requesting [Hagos’s] immediate removal from Med Finance.” Id. at 5.
By letter of June 3, 2016, parent company RavenTek Solutions terminated Hagos’s
employment “for cause,” citing as grounds “misconduct by you that is detrimental to the Company,
insubordination.” Id. at 15.
B. Procedural History
On August 29, 2016, Hagos filed a formal complaint of discrimination with State. Mot. to
Dismiss, Ex. 2. In an affidavit provided to the EEO investigator in April 2017, RavenTek’s Chief
1
The Complaint contains various references to what might be an administrative record. For the
purposes of this opinion, the factual allegations, to the extent relevant and intelligible, are liberally
construed and accepted as true.
2
Operating Officer confirmed that at the relevant time RavenTek “was the Prime Contractor on
Dept. of State MED,” and the “Task Order ended on 9/30/2016.” Id., Ex. 1. In addition, the Chief
Operating Officer stated that (1) Hagos was a RavenTek employee who was “subcontracted” to
State; (2) the decision to terminate Hagos’s employment was not made at the “request or direction
of [State] officials”; and (3) the decision “was made solely by RavenTek, based on the contents of
the June 3, 2016 letter.” Id. On July 13, 2018, an EEO Administrative Judge issued an Order of
Dismissal, that State decided to “fully implement.” Compl. at 28 (Aug. 21, 2018 Final Order).
On November 15, 2018, Hagos filed this civil action, and on October 24, 2019, State moved
to dismiss the complaint. Despite the Court’s orders advising Hagos of deadlines to respond to
State’s motion to dismiss, Hagos has failed to file a response and appears to have no intention of
doing so without counsel. See Minute Orders of January 27, 2020 and October 15, 2019. Having
duly advised Hagos as a pro se party, see Order, Dkt. 22, the Court will proceed to the merits of
State’s motion to dismiss.
II. LEGAL STANDARD
Rule 12(b)(6) allows a defendant to move to dismiss the complaint for failure to state a
claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6)
motion, the complaint must contain factual matter sufficient to “state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A facially plausible
claim is one that “allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This standard does not
amount to a specific probability requirement, but it does require “more than a sheer possibility that
a defendant has acted unlawfully.” Id. A complaint need not contain “detailed factual allegations,”
but alleging facts that are “merely consistent with a defendant’s liability . . . stops short of the line
between possibility and plausibility.” Id. (internal quotation marks omitted).
3
Well-pleaded factual allegations are “entitled to [an] assumption of truth,” id. at 679, and
the court construes the complaint “in favor of the plaintiff, who must be granted the benefit of all
inferences that can be derived from the facts alleged,” Hettinga v. United States, 677 F.3d 471, 476
(D.C. Cir. 2012) (internal quotation marks omitted). But the assumption of truth does not apply to
a “legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678 (quotation marks
omitted). An “unadorned, the defendant-unlawfully-harmed-me accusation” is not credited;
likewise, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. Ultimately, “[d]etermining whether a complaint states a plausible
claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.” Id. at 679.
III. ANALYSIS
In its motion to dismiss, the Department of State argues that Hagos has failed to state a
claim for relief because she was a contractor, not a federal employee, and contractors cannot sue
for employment discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e,
et seq. (Title VII). Mot. to Dismiss at 4. State is correct with respect to Hagos’s Title VII claims.
But Hagos’s complaint also alleges disability discrimination, a claim that arises under the
Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq. (Rehabilitation Act). Federal contractors are
not barred from bringing disability discrimination claims under the Rehabilitation Act. Therefore,
the Court will grant in part and deny in part State’s motion to dismiss.
Title VII proscribes discrimination against federal employees based on race, color, religion,
sex, or national origin. 42 U.S.C. § 2000e-16. The D.C. Circuit has held that Title VII also
prohibits the federal government from retaliating against its employees for exercising their rights
under the statute. See Rochon v. Gonzales, 438 F.3d 1211, 1216 (D.C. Cir. 2006) (concluding that
“Congress clearly has waived sovereign immunity from [Title VII] claims of retaliation”). But
4
“Title VII cover[s] only those individuals in a direct employment relationship with a government
employer,” not individuals who “are independent contractors” or, like Hagos, “those not directly
employed by” the federal government. Spirides v. Reinhardt, 613 F.2d 826, 829 (D.C. Cir. 1979).
The Court thus agrees with State that dismissal of Hagos’s national origin discrimination,
retaliation, and hostile work environment claims is warranted.
However, Hagos’s disability claim is governed by the Rehabilitation Act, 29 U.S.C. §§ 791-
794, not Title VII. Congress enacted the Rehabilitation Act “to aid [disabled] individuals and in so
doing . . . ‘established the principle that (a) the federal government, (b) federal contractors, and (c)
recipients of federal funds cannot discriminate against the handicapped.’” Milbert v. Koop, 830
F.2d 354, 355 (D.C. Cir. 1987) (quotations and citations omitted). To that end, § 503 of the
Rehabilitation Act requires that a “party contracting with the United States [for an amount in
excess of $10,000] shall take affirmative action to employ and advance in employment qualified
individuals with disabilities.” 29 U.S.C. § 793(a). In addition, “§ 504 addresses discrimination in
‘any program or activity conducted by any Executive agency,’” Redd v. Summers, 232 F.3d 933,
937 (D.C. Cir. 2000) (quoting 29 U.S.C. § 794(a). Under § 504, an agency’s “contract may
constitute a federal program or activity, in which case [the plaintiff] is entitled to show that she was
unlawfully denied participation in the contract or retaliated against for protesting such denial.”
Redd, 232 F.3d at 941. Therefore, State’s sole argument in its Motion to Dismiss—that Hagos was
a contractor rather than a federal employee—does not defeat Hagos’s claim of disability
discrimination under the Rehabilitation Act.
Accordingly, it is
ORDERED that the defendant’s Motion to Dismiss, Dkt. 21, is GRANTED with respect to
the plaintiff’s Title VII claims. It is further
ORDERED that the defendant’s Motion to Dismiss, Dkt. 21, is DENIED WITHOUT
5
PREJUDICE as to the plaintiff’s Rehabilitation Act claim. It is further
ORDERED that on or before June 6, 2020, the parties shall propose a schedule for further
proceedings.
________________________
DABNEY L. FRIEDRICH
United States District Judge
Date: May 7, 2020
6