Dieng v. American Institutes for Research in the Behavioral Sciences

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
YACINE DIENG
Plaintiff,
v.
No. 18-cv-1220 (EGS)
AMERICAN INSTITUTES FOR
RESEARCH IN THE BEHAVIORAL
SCIENCES,
Defendant.
MEMORANDUM OPINION
Plaintiff Yacine Dieng (“Ms. Dieng”) brings this action
against Defendant American Institutes for Research in the
Behavioral Sciences (“AIR”) under Title VII of the Civil Rights
Act, 42 U.S.C. § 2000e, et seq., and the District of Columbia’s
Human Rights Act (“DCHRA”), D.C. Code § 2–1401.01 et seq.,
arising out of the termination of her employment. Ms. Dieng, an
African-American woman, alleges that her supervisors at AIR
subjected her to discrimination, a hostile work environment, and
retaliation on the basis of her race and gender. Pending before
the Court is AIR’s motion to dismiss. Upon careful consideration
of the motion, the opposition, the reply thereto, the applicable
law, and the entire record herein, the Court GRANTS IN PART and
DENIES IN PART AIR’s Motion to Dismiss. The Court DISMISSES
WITHOUT PREJUDICE Ms. Dieng’s hostile work environment and
gender discrimination claims.
I. Background
A. Factual Background
The following facts reflect the allegations in the
operative complaint and the documents incorporated by reference
therein, which the Court assumes are true for the purposes of
deciding this motion and construes in Ms. Dieng’s favor. See
Baird v. Gotbaum, 792 F.3d 166, 169 n.2 (D.C. Cir. 2015). In
February 2013, AIR hired Ms. Dieng, an African-American female,
as a Senior Database Engineer in its “ORS Department.” Am.
Compl., ECF No. 8 at 2 ¶ 5. 1 With more than 1,800 employees, id.
at 2 ¶ 9, AIR is a non-profit organization with a mission to
“conduct and apply the best behavioral and social sciences
research and evaluation towards improving people’s lives[,]”
Def.’s Ex. 1, ECF No. 9-2 at 1. While working there, Ms. Dieng
became an “expert at fixing bugs[.]” Am. Compl., ECF No. 8 at 2
¶ 10. She often worked “every single day of the week including
week nights and weekends[,] id. at 5 ¶ 29, and she was allowed
to telecommute without prior approval from her supervisors, id.
at 4 ¶ 22. AIR eventually promoted her to Lead Database Engineer
II. Id. at 2 ¶ 5. On February 2, 2018, AIR terminated her
employment as a result of “performance issues” and
1 When citing electronic filings throughout this Opinion, the
Court cites to the ECF page number, not the page number of the
filed document.
2
“insubordination.” Id. at 8 ¶ 44.
During her first year, Ms. Dieng was subjected to “abusive
discriminatory behavior” by her Technical Project Manager and
she reported that “abusive treatment” to her Staff Manager. Id.
at 6 ¶ 38. Ms. Dieng was the only African-American female in a
group within the ORS Department. Id. at 2 ¶ 12. According to Ms.
Dieng, “upper management and the whole ORS department group”
witnessed “[s]uch repeated abusive behavior,” including one
incident where the Technical Project Manager “yelled on top of
his lungs for [Ms. Dieng] to sit down and shut up in [the]
middle of her presentation.” Id. at 6-7 ¶ 38. The Technical
Project Manager’s behavior “seem[ed] to have resolved itself in
the later years.” Id. at 6 ¶ 38.
In September 2015, however, “it became necessary for Ms.
Dieng to seek assistance from Human Resources due to a workplace
conflict which was created by her Project Manager’s . . .
disrespectful and abusive behavior in front of her office co-
workers.” Id. at 2 ¶ 11. Ms. Dieng’s Project Manager yelled at
her, “demeaning and embarrassing her” during staff meetings. Id.
at 3 ¶ 13. Ms. Dieng asserts that “[n]o one else was treated
that way” and that “[s]he was the only person abusively
reprimanded although others had made the exact same comment
without receiving any verbal abuse.” Id. At some point, Ms.
Dieng decided to attend the staff meetings via telephone as she
3
waited for AIR to resolve the dispute. Id. Ms. Dieng reported
her “concerns about mistreatment to her Staff Manager, who
refused to intervene and commanded her to start attending
meetings physically again[.]” Id. at 3 ¶ 14.
Ms. Dieng then informed the Human Resources department
about her concerns, explaining that her Project Manager
discriminated against her and treated her differently from
“every other employee in the group” who were “either Caucasian
or a co-national of the [Project Manager] (Indian descent)[.]”
Id. at 3 ¶ 16. In response, the Human Resources department told
Ms. Dieng to “handle the conflict alone.” Id. at 3 ¶ 17. At some
point, the Human Resources department facilitated a meeting with
the Project Manager and Ms. Dieng. Id. at 3 ¶ 18. The Project
Manager apologized to Ms. Dieng at that meeting. Id. But the
Project Manager’s apology did not end Ms. Dieng’s issues at AIR.
See id. at 3 ¶ 19. According to Ms. Dieng, the apology was
short-lived because the Project Manager became very hostile
towards her and the Project Manager “started working very hard”
to terminate her employment. Id.
Ms. Dieng alleges the following grievances: (1) the Project
Manager ignored Ms. Dieng at staff meetings, id. at 4 ¶ 19;
(2) the Staff Manager “constant[ly] question[ed]” her work and
made “irrelevant probes,” id. at 4 ¶ 21; (3) the Staff Manager
asserted false claims that her “code was buggy” based on a
4
report issued by the Project Manager, id.; (4) the Project
Manager’s reports questioned “Ms. Dieng’s ongoing ad hoc
telecommuting” during the summer of 2017, id. at 4 ¶ 22; (5) the
Staff Manager required Ms. Dieng to seek prior approval from
senior management before telecommuting while her team members
telecommuted without prior approval, id.; (6) the Staff Manager
“sternly reprimand[ed]” her for telecommuting after the Staff
Manager verbally approved her request to do so, id. at 5 ¶ 26;
(7) the Staff Manager labeled Ms. Dieng as insubordinate when
she refused to follow an order generated by the Project Manager,
id. at 5 ¶ 27; (8) the Staff Manager “put in writing a blatant
lie” in her performance evaluation—for the period of January 1,
2016 to December 31, 2016—that she received “negative feedback”
from her co-workers about her work product, id. at 6 ¶ 33, but
the Staff Manager did “not lie on evaluations of similarly
situated Caucasians/[the Project Manager’s] co-Nationals co-
workers[,]” id. at 6 ¶ 34; and (9) neither the Project Manager
nor the Staff Manager responded to Ms. Dieng’s repeated verbal
and written requests to dispute the “false evaluation,” id. at 6
¶ 35.
Ms. Dieng also asserts the following allegations: (1) the
Staff Manager raised “false performance issues” about Ms. Dieng
at a meeting with her and Human Resources personnel, id. at 6 ¶
37; (2) the Staff Manager accused Ms. Dieng of “not getting
5
along with the whole team,” id. at 6 ¶ 38; (3) the Staff Manager
initially rejected Ms. Dieng’s request for a new laptop, but the
Staff Manager later approved her request after “[o]ne of the
[Project Manager’s] co-national co-workers” explained that Ms.
Dieng needed a new laptop due to certain issues with the old
one, id. at 7 ¶ 42; (4) the Senior Manager accused Ms. Dieng of
“touching the production system without permission” in January
2018 even though she had “followed the same procedure for the
past [five] years by requesting permission from her [Project
Manager],” id. at 7 ¶ 43; and (5) management revoked Ms. Dieng’s
access to the production system even though none of her
“Caucasian/[Project Manager’s] co-nationals co-workers” received
the same treatment when they touched the production system, id.
at 8 ¶ 43. AIR ultimately fired Ms. Dieng for insubordination
and performance issues. Id. at 8 ¶ 44.
Ms. Dieng asserts that AIR’s “prior mistreatment” and her
termination were “because of her race and in retaliation for her
complaints.” Id. at 8 ¶ 45. She also alleges that AIR’s
mistreatment created a hostile work environment. Id. After her
termination in February 2018, Ms. Dieng filed a “timely
complaint” with the United States Equal Employment Opportunity
Commission (“EEOC”). Id. at 8 ¶ 46. On February 22, 2018, the
EEOC issued a notice of right to file suit. Id. at 8 ¶ 47.
6
B. Procedural History
On May 24, 2018, Ms. Dieng filed this employment
discrimination lawsuit, asserting Title VII and DCHRA claims
against AIR. See Compl., ECF No. 1 at 5-6. AIR moved to dismiss
the initial complaint on August 13, 2018, see generally Def.’s
Mot. to Dismiss, ECF No. 6, and the Court denied without
prejudice AIR’s motion after Ms. Dieng filed an Amended
Complaint on September 4, 2018. See Min. Order of Sept. 6, 2018;
see generally Am. Compl., ECF No. 8. 2 Ms. Dieng’s allegations
against AIR fall into three categories: (1) AIR created a
hostile work environment because of her race and gender in
violation of Title VII and DCHRA; (2) AIR discriminated against
her and terminated her because of her race and gender in
violation of Title VII and DCHRA; and (3) AIR retaliated against
her for engaging in protected activities in violation of Title
VII and DCHRA. See Am. Compl., ECF No. 8 at 9-10. 3
2 The Amended Complaint asserts the following six counts:
(1) “Hostile Work Environment Created Against Plaintiff Because
of Her Race and Gender” under Title VII; (2) “Hostile Work
Environment Created Against Plaintiff Because of Her Race and
Gender” under DCHRA; (3) “Termination Taken Against Plaintiff on
the Basis of Race and Gender” under Title VII; (4) “Termination
Action Taken Against Plaintiff on the Basis of Race and Gender”
under DCHRA; (5) “Termination Action Taken Against Plaintiff on
the Basis of Retaliation” under Title VII; and (6) “Termination
Action Taken Against Plaintiff on the Basis of Retaliation”
under DCHRA. Am. Compl., ECF No. 8 at 9-10.
3The Amended Complaint includes the word “Gender” in the
headings for Counts I through IV. Am. Compl., ECF No. 8 at 9.
Ms. Dieng alleges that she is female. Id. at 2 ¶ 4; 2 ¶ 12. To
7
AIR filed its motion to dismiss the Amended Complaint on
September 18, 2018, see Def.’s Mot. to Dismiss, ECF No. 9, Ms.
Dieng filed her opposition brief on October 9, 2018, see Pl.’s
Opp’n, ECF No. 11, and AIR filed its reply brief on October 16,
2018, see Def.’s Reply, ECF No. 12. The motion is ripe and ready
for the Court’s adjudication. 4
II. Legal Standard
A motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) “tests the legal sufficiency of a complaint.” Browning
v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). The court will
dismiss a claim if the complaint fails to plead “enough facts to
state a claim for relief that is plausible on its face.” Bell
the extent that Ms. Dieng seeks to assert claims based on
gender, AIR argues that Ms. Dieng fails to include any factual
allegations to support her hostile work environment and
discrimination claims based on her gender. Def.’s Mem. in Supp.
of Def.’s Mot. to Dismiss (“Def.’s Mem.”), ECF No. 9-1 at 17;
see also Def.’s Reply, ECF No. 12 at 1-2 (citing LCvR 7(b)). By
not responding to this argument in her opposition brief, see
generally Pl.’s Opp’n, ECF No. 11, Ms. Dieng has conceded it.
See Wannall v. Honeywell, Inc., 775 F.3d 425, 428 (D.C. Cir.
2014) (“[Local Civil Rule 7(b)] is understood to mean that if a
party files an opposition to a motion and therein addresses only
some of the movant’s arguments, the court may treat the
unaddressed arguments as conceded.” (citing Hopkins v. Women’s
Div., Gen. Bd. of Global Ministries, 284 F. Supp. 2d 15, 25
(D.D.C. 2003), aff’d, 98 F. App’x 8 (D.C. Cir. 2004))).
Accordingly, the Court DISMISSES WITHOUT PREJUDICE Ms. Dieng’s
hostile work environment and discrimination claims based on her
gender (Counts I, II, III, and IV).
4 AIR requests an oral hearing on its motion to dismiss. See
Def.’s Mot. to Dismiss, ECF No. 9 at 1. The Court will not
exercise its discretion to hold a hearing. See LCvR 7(f). The
Court therefore DENIES AIR’s request for an oral hearing.
8
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A complaint
must contain “a short and plain statement of the claim showing
that the pleader is entitled to relief,” Fed. R. Civ. P.
8(a)(2), “in order to give the defendant fair notice of what the
. . . claim is and the grounds upon which it rests,” Twombly,
550 U.S. at 555 (citation and internal quotation marks omitted).
A complaint survives a Rule 12(b)(6) motion only if it
“contain[s] 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 (2009) (quoting Twombly,
550 U.S. at 570). A claim is facially plausible “when the
plaintiff pleads factual content that allows the court to draw
[a] reasonable inference that the defendant is liable for the
misconduct alleged.” Id. A complaint alleging facts which are
“‘merely consistent with’ a defendant’s liability . . . ‘stops
short of the line between possibility and plausibility of
entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557).
III. Analysis
AIR advances three primary arguments for dismissal under
Rule 12(b)(6). See Def.’s Mem., ECF No. 9-1 at 8-17. First, Ms.
Dieng has not stated a discrimination claim because she alleges
no facts from which it can be inferred that race was a factor in
AIR’s decision to terminate her. Id. at 14-15. Next, Ms. Dieng
fails to state a retaliation claim because the Project Manager’s
9
apology resolved the one arguable protected activity (i.e. her
2015 complaint to AIR’s Human Resources department) and there
are no allegations that the discriminatory acts were connected
to the 2015 protected activity. Id. at 15-17. Finally, Ms. Dieng
fails to state a hostile work environment claim on the basis of
her race because the alleged “isolated events” of hostility were
not “racially charged,” “racially insensitive,” “severe,” or
“pervasive” to constitute such a claim. Id. at 10. The Court
addresses each claim in turn. 5
A. Discrimination Claims
The Court first considers Ms. Dieng’s discrimination claims
based on her race. Under Title VII, it is unlawful for an
employer “to discriminate against any individual with respect to
[her] compensation, terms, conditions, or privileges of
employment, because of such individual’s race, color, religion,
sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1) (emphasis
added). Ms. Dieng must establish “two essential elements”:
“(i) [she] suffered an adverse employment action (ii) because of
5 The Court will analyze Ms. Dieng’s Title VII and DCHRA claims
together because the legal standards for both statutes are
substantively the same. See, e.g., Burley v. Nat’l Passenger
Rail Corp., 801 F.3d 290, 296 (D.C. Cir. 2015) (recognizing that
the analysis is the same for Title VII and DCHRA claims and that
“Title VII claims and DCHRA claims thus rise and fall
together”); Williams v. District of Columbia, 317 F. Supp. 3d
195, 199 (D.D.C. 2018) (Sullivan, J.) (applying the same
analysis to Title VII and DCHRA claims).
10
the [her] race, color, religion, sex, national origin, age, or
disability.” Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C.
Cir. 2008); see also Douglas v. Donovan, 559 F.3d 549, 552 (D.C.
Cir. 2009) (“An adverse employment action is a significant
change in employment status, such as hiring, firing, failing to
promote, reassignment with significantly different
responsibilities, or a decision causing significant change in
benefits.” (citations and internal quotation marks omitted)).
“To prevail on a motion to dismiss, it is not necessary to
establish a prima facie case.” Greer v. Bd. of Trs. of the Univ.
of the D.C., 113 F. Supp. 3d 297, 310 (D.D.C. 2015) (citing
Gordon v. U.S. Capitol Police, 778 F.3d 158, 162 (D.C. Cir.
2015)). Nonetheless, Ms. Dieng “must allege facts that, if true,
would establish the elements of each claim.” Id. (citation and
internal quotation marks omitted).
It is undisputed that Ms. Dieng asserts that AIR’s unlawful
actions resulted in her termination on the basis of her race.
See Am. Compl., ECF No. 8 at 2 ¶¶ 4, 6, 12. AIR argues that Ms.
Dieng has “alleged nothing more than she is African American and
was terminated[,]” Def.’s Mem., ECF No. 9-1 at 14, and that Ms.
Dieng failed to address the arguments in its motion to dismiss
as to Counts III and IV in which Ms. Dieng alleges that she was
unlawfully terminated based on her race, see Def.’s Reply, ECF
11
No. 12 at 1-2. The Court disagrees.
While the “Argument” section in Ms. Dieng’s opposition
brief lacks a separate subheading for her discrimination claims
and her arguments could have been provided in a more direct and
clear manner to support those claims, see Pl.’s Opp’n, ECF No.
11 at 7-12, Ms. Dieng is asserting disparate treatment claims
based on her allegations of racial discrimination in light of
her arguments under the “Hostile Work Environment” subheading,
see id. at 7. Ms. Dieng explicitly references “numerous
incidents” of “disparate treatment,” id. at 9, including her
supervisor yelling at her and ignoring her during staff
meetings, id. at 2. Ms. Dieng contends that her grievances at
AIR escalated when she reported her “race claim” to the Human
Resources department, id. at 10, and that she was a “victim of
racial discrimination,” id. at 2. Because the Human Resources
department told her to “handle the conflict alone,” Am. Compl.,
ECF No. 8 at 3 ¶ 17, Ms. Dieng asserts that she reminded the
department of AIR’s policy that the department must be
“engage[d] in the diversity area to ensure that every employee
is respected and feels valued[,]” Pl.’s Opp’n, ECF No. 11 at 2.
According to Ms. Dieng, she continued to experience mistreatment
after she met with the Human Resources department. See id. at 2.
Ms. Dieng, “as the only person of color” in a particular
group at AIR, argues that she was treated differently than her
12
white co-workers, id. at 8, because her supervisors required her
to seek prior approval from management before telecommuting,
whereas her white co-workers could telecommute without prior
approval, id. at 9. Ms. Dieng points out that her supervisors
inserted falsehoods and mischaracterizations in her performance
evaluations, whereas the evaluations of her white co-workers
included true and accurate information about their performance.
Id. at 4, 8-10, 10 n.2. Ms. Dieng alleges that her supervisors
falsely accused her of touching a production system without
permission, but such permission was not required for her white
co-workers. Id. at 5 (citing Am. Compl., ECF No. 8 at 7 ¶ 43).
Indeed, she points out that she requested permission based on
the same procedure she had followed for five years. Id. And her
co-workers touched the production system without permission, but
she was the only employee to be reprimanded and fired. Am.
Compl., ECF No. 8 at 8 ¶ 43. She asserts that a week after she
met with the Human Resources department and her supervisors
concerning the accusations that she impermissibly touched the
production system, AIR terminated her. Pl.’s Opp’n, ECF No. 11
at 5; see also Am. Compl., ECF No. 8 at 7-8 ¶ 43.
AIR’s next argument—that Ms. Dieng has alleged nothing more
than she is African American and was terminated—is unavailing.
See, e.g., Def.’s Mem., ECF No. 9-1 at 14; Def.’s Reply, ECF No.
12 at 2. Construing the allegations in the light most favorable
13
to Ms. Dieng, the Court therefore finds that she has alleged
enough facts to state a disparate treatment claim based on her
race to survive the motion to dismiss. See, e.g., Jackson v.
Dist. Hosp. Partners, L.P., No. CV 18-1978 (ABJ), 2019 WL
3502389, at *5 (D.D.C. Aug. 1, 2019) (holding that plaintiff
stated a disparate treatment claim on the basis of race, sex,
and religious discrimination based on allegations that he was
wrongfully terminated for raising his voice and “other non-
Muslim, non-African-American, and female employees were treated
more favorably because they were not fired despite engaging in
similar conduct”); Winston v. Clough, 712 F. Supp. 2d 1, 10
(D.D.C. 2010) (holding that plaintiff stated a claim for racial
discrimination by alleging that he was subjected to discipline
that “was motivated by [his] race and color” and “that other co-
workers outside [his] protected class” engaged in the same
behavior for which he was disciplined “yet none was suspended or
disciplined for it”). Accordingly, the Court DENIES AIR’s motion
to dismiss as to Ms. Dieng’s discrimination claims based on race
(Counts III and IV).
B. Retaliation Claims
The Court next turns to Ms. Dieng’s retaliation claims.
Title VII “both prohibits employers from engaging in employment
practices that discriminate on the basis of race, see 42 U.S.C.
§ 2000e–2(a), and bars them from retaliating against an employee
14
‘because [she] has opposed any [such] practice,’ id. § 2000e–
3(a).” Harris v. D.C. Water & Sewer Auth., 791 F.3d 65, 68 (D.C.
Cir. 2015) (citation omitted). “In order to establish a prima
facie case of retaliation, a plaintiff must show (1) [she]
engaged in a statutorily protected activity; (2) [she] suffered
an adverse employment action; and (3) there is a causal
connection between the two.” Jackson, 2019 WL 3502389, at *5.
“[A] plaintiff need not plead each element of his prima facie
retaliation case to survive a motion to dismiss.” Id. For the
reasons explained below, Ms. Dieng has stated claims for
retaliation.
Here, it is undisputed that Ms. Dieng has sufficiently
alleged facts for the first two elements because she engaged in
protected activity when she complained to the Human Resources
department about her mistreatment in September 2015,
specifically about her Project Manager’s “disrespectful and
abusive behavior.” Am. Compl., ECF No. 8 at 2 ¶ 11. There is no
dispute that Ms. Dieng’s termination in February 2018
constitutes a materially adverse action. See id. at 2 ¶ 6, 8 ¶
44. The remaining issue is whether Ms. Dieng has alleged
sufficient facts for a causal connection between the protected
activity in 2015 and the termination in 2018. AIR argues, and
the Court disagrees, that “there are no allegations that Ms.
Dieng complained to Human Resources or anyone in AIR
15
[management] about the alleged hostile actions” and that the
Program Manager resolved her claims of mistreatment with an
apology. Def.’s Mem., ECF No. 9-1 at 15. Indeed, Ms. Dieng
alleges that she reported her claims of mistreatment to her
Staff Manager. Am. Compl., ECF No. 8 at 3 ¶ 14. And Ms. Dieng
asserts that she reported her Technical Project Manager’s
“abusive discriminatory behavior” and “abusive treatment” to her
Staff Manager during her first year in 2013. Id. at 6 ¶ 38.
Ms. Dieng alleges at least seven retaliatory actions that
were taken by her supervisors after she complained about her
mistreatment: (1) she was ignored at staff meetings, id. at 4 ¶
19; (2) her managers constantly questioned her work and made
irrelevant probes, id. at 4 ¶ 21; (3) she was required to seek
prior approval from senior management before telecommuting while
her team members telecommuted without such approval, id. at 4 ¶
22; (4) the Staff Manager reprimanded her for telecommuting
after verbally approving her request to do so, id. at 5 ¶ 26;
(5) Ms. Dieng lost her telecommuting privileges, id. at 5 ¶ 30;
(6) her supervisors ignored her repeated verbal and written
requests to address her concerns with her evaluation, id. at 6 ¶
35; (7) her supervisors rejected her initial request for a new
laptop, id. at 7 ¶ 42; and (8) her supervisors revoked her
access to the production system, id. at 8 ¶ 43.
Next, AIR contends that Ms. Dieng does not allege that the
16
alleged incidents in 2017 and 2018 were connected to her 2015
protected activity, and that “given the passage of time, there
is no reasonable inference that can be made to suggest that what
Ms. Dieng claims to have experienced in 2017 and 2018 was in any
way related to her alleged protected activity in 2015.” Def.’s
Mem., ECF No. 9-1 at 16. AIR correctly notes that “‘[t]emporal
proximity can indeed support an inference of causation, . . .,
but only where the two events are ‘very close’ in time.’” Id.
(quoting Woodruff v. Peters, 482 F.3d 521, 529 (D.C. Cir.
2007)). AIR argues that the Senior Manager—who accused Ms. Dieng
of impermissibly touching the production system that led to her
termination—lacked any knowledge about Ms. Dieng’s protected
activity in 2015. Id. at 17.
“[U]nder some circumstances, temporal proximity between an
employer’s knowledge of protected activity and an adverse
personnel action may alone be sufficient to raise an inference
of causation.” Harris, 791 F.3d at 69 (emphasis added); see also
Townsend v. United States, 236 F. Supp. 3d 280, 316 (D.D.C.
2017) (“If the causation element is predicated on temporal
proximity alone, however, that proximity must be ‘very close.’”
(citation omitted)). Here, Ms. Dieng asserts that she complained
to the Human Resources department in September 2015 about her
mistreatment and that she was terminated in February 2018. See
Am. Compl., ECF No. 8 at 2 ¶ 11, 3 ¶ 14. Ms. Dieng also reported
17
her mistreatment to her Staff Manager in 2013. Id. at 6 ¶ 38.
Viewing Ms. Dieng’s allegations in the light most favorable to
her, the allegations of her complaints in 2013 and 2015 were not
“very close” in time to her termination. Clark Cty. Sch. Dist.
v. Breeden, 532 U.S. 268, 273-74 (2001) (noting that a three- or
four-month period between an adverse action and protected
activity is insufficient to show a causal connection, and a
twenty-month period “suggests, by itself, no causality at all”);
see also Mason v. Geithner, 811 F. Supp. 2d 128, 189 (D.D.C.
2011) (finding that “approximately two years had elapsed since
[the plaintiff] had last engaged in protected activity in
connection with the [retaliatory act], precluding any potential
inference of retaliation based on temporal proximity.”), aff’d,
492 F. App’x 122 (D.C. Cir. 2012).
Relevant here, however, is AIR’s denial of Ms. Dieng’s
request to telecommute. See Am. Compl., ECF No. 8 at 5 ¶¶ 26-30.
Ms. Dieng met with the Human Resources department about the
accusations of insubordination where she “explained herself,”
id. at 5 ¶ 27, and the meeting appears to have taken place
around the time that Ms. Dieng received a “harsh reprimand about
telecommuting” from her Staff Manager, id. at 6 at ¶ 28. An
employee “can engage in ‘protected activity’ by verbally
complaining to [her] employer about unlawful discrimination.”
Jackson, 2019 WL 3502389 at *6. The United States Court of
18
Appeals for the District of Columbia Circuit (“D.C. Circuit”)
has made clear that a denial of a request to telecommute “could
constitute an adverse employment action.” Kline v. Berry, 404 F.
App’x 505, 506 (D.C. Cir. 2010); see also Burlington N. & Santa
Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (“[R]etaliation that
produces an injury or harm” is actionable if “a reasonable
employee would have found the challenged action materially
adverse, which in this context means it well might have
dissuaded a reasonable worker from making or supporting a charge
of discrimination.” (citation omitted)). Depending on the
context, “[a] schedule change in an employee’s work schedule” or
exclusion of an employee “from a weekly training lunch” could
deter a reasonable employee from complaining and therefore might
be actionable. White, 548 U.S. at 69.
Ms. Dieng alleges that the denial of her telecommuting
privileges—privileges that were enjoyed by her team members—was
disruptive. See Am. Compl., ECF No. 8 at 5 ¶ 30. Ms. Dieng
argues that the “denial of teleworking” impacted “her
performance.” Pl.’s Opp’n, ECF No. 11 at 10. The Amended
Complaint does not provide the exact date for Ms. Dieng’s “loss
of her telecommuting” privileges. Am. Compl., ECF No. 8 at 5 ¶
30. Assuming that the denial of Ms. Dieng’s telecommuting
privileges were “very close” in time to her complaints to AIR’s
management and the Human Resources department about her
19
mistreatment and reprimand for telecommuting, the Court may
infer a causal relationship. See Townsend, 236 F. Supp. 3d at
316.
“At the motion to dismiss stage, the hurdle of alleging a
causal link is not a high one.” Cavalier v. Catholic Univ. of
Am., 306 F. Supp. 3d 9, 38 (D.D.C. 2018). “Temporal proximity,
for example, may suffice . . . as may other factual allegations
that, construed in the light most favorable to the plaintiff,
would ‘plausibly’ establish this element of [the retaliation]
claim.” Id. (citations omitted). The D.C. Circuit’s decision in
Harris v. District of Columbia Water & Sewer Authority, 791 F.3d
65, 68-71 (D.C. Cir. 2015) is instructive. There, the D.C.
Circuit reversed a district court’s dismissal of a complaint
while declining to “decide whether a five-month time lag without
more would be sufficient to render [the plaintiff’s] claim
plausible because his complaint alleged more” in support of his
retaliation claim. Harris, 791 F.3d at 69. The D.C. Circuit
considered other allegations in the plaintiff’s complaint,
including that the plaintiff was “regularly commended for his
work” and made “numerous contributions to the improvement of”
the employer’s operations, as supporting the inference, at the
motion to dismiss stage, that the employer terminated the
plaintiff in retaliation. Id. (internal quotation marks and
citations omitted).
20
“The only question before [the Court] is whether [Ms. Dieng
has] alleged facts that, taken as true, render [her] claim of
retaliation plausible.” Id. at 70; see also Iqbal, 556 U.S. at
679 (“[A] complaint that states a plausible claim for relief
survives a motion to dismiss.”). Ms. Dieng has done so. Ms.
Dieng alleges that she “became the go-to person as an expert at
fixing bugs, leading to her promotion as Lead Database
Engineer.” Am. Compl., ECF No. 8 at 2 ¶ 10. For the period of
January 1, 2016 to December 31, 2016, Ms. Dieng received an
overall performance rating of “Consistently Met Expectations” in
her performance evaluation at AIR. Id. at 6 ¶ 31. In fact, her
Manager stated that “[o]verall, the effort [Ms. Dieng] puts
forth, particularly for night and weekend deployments is
appreciated, and she is a key contributor on the team.” Def.’s
Ex. 1, ECF No. 9-2 at 2. With the exception of the Technical
Project Manager who exhibited “abusive discriminatory behavior”
towards her, Ms. Dieng alleges that she got along with the whole
team. Am. Compl., ECF No. 8 at 6 ¶ 38. Ms. Dieng challenges the
stated reasons for her termination—“performance issues” and
“insubordination.” Id. at 8 ¶ 44.
“If true, these facts would show that [Ms. Dieng’s]
termination was not attributable to [one] of the ‘two most
common legitimate reasons’ for termination: ‘performance below
the employer’s legitimate expectations[.]’” Harris, 791 F.3d at
21
69 (quoting George v. Leavitt, 407 F.3d 405, 412 (D.C. Cir.
2005)). In determining that the plaintiff’s complaint in Harris
alleged facts that, if shown, would be sufficient to state a
prime facie case of retaliation, the D.C. Circuit explained that
a showing that the plaintiff’s termination was not attributable
to the plaintiff’s performance below his employer’s legitimate
expectations was “sufficient to satisfy a plaintiff’s burden of
establishing a prima facie case at the summary judgment
stage[.]” Id. (citations omitted); see also Calhoun v.
Johnson, 632 F.3d 1259, 1261 (D.C. Cir. 2011) (“Usually,
proffering ‘evidence from which a jury could find that [the
employer’s] stated reasons . . . were pretextual . . . will be
enough to get a plaintiff’s claim to a jury.’” (quoting George,
407 F.3d at 413)). The Court therefore finds that Ms. Dieng’s
factual allegations are sufficient at this stage to state a
plausible claim for retaliation. Accordingly, the Court DENIES
AIR’s motion to dismiss as to Counts V and VI.
C. Hostile Work Environment Claims
The Court next considers Ms. Dieng’s hostile work
environment claims. “Hostile environment claims are different in
kind from discrete acts. Their very nature involves repeated
conduct.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
115 (2002) (citation omitted). To state a hostile work
environment claim, Ms. Dieng must allege “that [her] employer
22
subjected [her] to discriminatory intimidation, ridicule, and
insult that is sufficiently severe or pervasive to alter the
conditions of [her] employment and create an abusive working
environment.” Baloch, 550 F.3d at 1201 (citations and internal
quotation marks omitted). “Although a plaintiff need not plead a
prima facie case of hostile work environment in the complaint,
the alleged facts must support such a claim.” McKeithan v.
Boarman, 803 F. Supp. 2d 63, 69 (D.D.C. 2011) (citation and
internal quotation marks omitted). In determining whether Ms.
Dieng has alleged facts to support her claim, the Court must
evaluate “the totality of the circumstances, including the
frequency of the discriminatory conduct, its severity, its
offensiveness, and whether it interferes with an employee’s work
performance.” Baloch, 550 F.3d at 1201; see also Baird, 792 F.3d
at 168 (“A hostile environment consists of several individual
acts that ‘may not be actionable on [their] own’ but become
actionable due to their ‘cumulative effect.’” (quoting Morgan,
536 U.S. at 115)). 6
Here, Ms. Dieng asserts that she was subjected to a hostile
6 Ms. Dieng relies on a Ninth Circuit decision to support her
hostile work environment claims. See Pl.’s Opp’n, ECF No. 11 at
8 (citing Vasquez v. Cty. of Los Angeles, 349 F.3d 634, 642 (9th
Cir. 2003)). The Court will not consider the out-of-Circuit
opinion because it is not binding on this Court and Ms. Dieng
provides no reasons for this Court to deviate from D.C. Circuit
precedent.
23
work environment based on racial harassment because “she was not
treated the same way that Whites were treated on the job.” Pl.’s
Opp’n, ECF No. 11 at 8. Ms. Dieng points out that “her
performance evaluation contained blatant mischaracterizations
and downright falsehoods, whereas no Caucasian was treated that
poorly[,]” id. at 8-9, and that her white co-workers had the
ability to telecommute without prior approval, but she could
only telecommute with “upper level approval[,]” id. at 9. Ms.
Dieng contends that several incidents of disparate treatment—her
supervisors yelling at her, ignoring her at staff meetings,
fabricating her performance evaluations, and revoking her
telecommuting privileges—all contributed to a hostile work
environment. Id. at 8-11. Acknowledging that “no racist comments
or utterances” were made in her presence, Ms. Dieng argues that
direct evidence is not necessary at the motion to dismiss stage.
Id. at 9 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-05 (1973)). Finally, Ms. Dieng contends that AIR knew about
her claims of “racial harassment from the very first meeting
with [the Human Resources department]” and that she has
“recounted a number of adverse workplace events which created
for her a hostile work environment, including incidents
occurring more than 300 days prior to the filing of her Charge
with the [EECO].” Id. at 11.
AIR responds that Ms. Dieng’s allegations are insufficient
24
to “establish that the alleged hostile work environment was
based on [her] race.” Def.’s Reply, ECF No. 12 at 3. AIR argues
that “there are no allegations to connect the alleged racial
discrimination by the Program Manager in 2015, to the alleged
hostile behavior by the Staff Manager two years later in 2017”
and that “there are no allegations that the alleged actions of
the Staff Manager were racially motivated.” Id. AIR contends
that the performance evaluation, on its face, is racially
neutral and does not support Ms. Dieng’s claims that it contains
falsehoods or “negative feedback” from others. Id. at 4. AIR
argues that Ms. Dieng’s allegation—that her white co-workers had
telecommuting privileges, but she did not have the same
privileges—fails to establish that the “alleged harassment was
due to her race.” Id. AIR makes a timeliness argument with
respect to Ms. Dieng’s 2015 allegations, contending that the
allegations of yelling and ignoring her during staff meetings
are untimely because Ms. Dieng filed her EEOC charge of
discrimination in 2018. Id. at 5. Finally, AIR argues that the
2017 alleged misconduct is not sufficiently severe or pervasive
to show a hostile work environment. Id. at 6. Before addressing
each argument, the Court first turns to the parties’ timeliness
arguments.
1. Timeliness
Title VII requires the “person aggrieved” to file a charge
25
with the EEOC within 180 days “after the alleged unlawful
employment practice occurred,” but this period is extended to
300 days if the person “has initially instituted proceedings
with a State or local agency.” 42 U.S.C. § 2000e-5(e)(1); see
also D.C. Code § 2-1403.16(a) (DCHRA establishes a one-year
limitations period). Because Ms. Dieng filed the EEOC charge in
2018, Am. Compl., ECF No. 8 at 8 ¶¶ 46-47, and she does not
allege that she filed a complaint with the District of
Columbia’s Office of Human Rights, see id. at 8 ¶¶ 45-47, she
had 180 days from the time of the alleged violation to file her
EEOC charge. See Ashraf-Hassan v. Embassy of France in U.S., 878
F. Supp. 2d 164, 171 (D.D.C. 2012) (“Where Plaintiff has failed
to pursue her grievances through the state’s administrative
processes, as here, she cannot invoke the longer presentment
[300-day] window and must file her claims within the 180–day
window to be timely.”). The Court therefore finds that only the
allegations of discriminatory acts that occurred within the 180-
days window are timely for the purpose of determining Ms.
Dieng’s hostile work environment claims.
Ms. Dieng relies on National Railroad Passenger Corp. v.
Morgan, 536 U.S. 101, 113 (2002) for the proposition that “an
action against a defendant employer for a claim of hostile work
environment can include events occurring before the charge-filing
period, i.e., occurring more than 300 days before she filed her
26
claim with the EEOC.” Pl.’s Opp’n, ECF No. 11 at 11-12 (emphasis in
original). Ms. Dieng argues that “although the staff meeting
hostility occurred more than 300 days prior to [the] filing [of]
her EEOC Charge, if it is part of the same discriminatory hostile
work environment claim, those acts are included.” Id. at 12. In
response, AIR neither cites nor addresses Morgan. See Def.’s Reply,
ECF No. 12 at 5. As previously explained, the 300-day window does
not apply to Ms. Dieng’s situation. See Ashraf-Hassan, 878 F.
Supp. 2d at 171. Morgan, however, supports Ms. Dieng’s timeliness
argument.
In Morgan, the Supreme Court noted that hostile work
environment claims by “[t]heir very nature involve[ ] repeated
conduct.” 536 U.S. at 115. The Supreme Court made clear that an
unlawful employment practice “cannot be said to occur on any
particular day. It occurs over a series of days or perhaps years
and, in direct contrast to discrete acts, a single act of
harassment may not be actionable on its own.” Id. (emphasis added).
The Supreme Court explained:
A hostile work environment claim is composed
of a series of separate acts that collectively
constitute one “unlawful employment
practice.” 42 U.S.C. § 2000e–5(e)(1). The
timely filing provision only requires that a
Title VII plaintiff file a charge within a
certain number of days after the unlawful
practice happened. It does not matter, for
purposes of the statute, that some of the
component acts of the hostile work environment
fall outside the statutory time period.
Provided that an act contributing to the claim
27
occurs within the filing period, the entire
time period of the hostile environment may be
considered by a court for the purposes of
determining liability.
Id. at 117. In other words, “a hostile work environment claim .
. . may properly be viewed as a ‘continuing violation’ under
both Title VII and the DCHRA.” Hammel v. Marsh USA Inc., 206 F.
Supp. 3d 219, 233 (D.D.C. 2016) (citing Morgan, 536 U.S. at 122;
Lively v. Flexible Packaging Ass’n, 830 A.2d 874, 890 (D.C.
2003)).
Here, AIR does not dispute that Ms. Dieng’s 2017
allegations in support of her hostile work environment claims
are timely. See Def.’s Reply, ECF No. 12 at 6. Ms. Dieng asserts
two specific acts of hostility that occurred in 2017: (1) “lies
as to her performance, which occurred on several occasions”; and
(2) the “denial of teleworking.” Pl.’s Opp’n, ECF No. 11 at 10.
Ms. Dieng’s hostile work environment theory is also based on
AIR’s alleged misconduct in 2015. See id. at 10. According to
Ms. Dieng, “[t]he yelling at [her] in staff meetings was most
humiliating. However, it became worse after she reported her
race claim to [the Human Resources department]. Then she was
totally ignored, unable to ask questions or contribute to work
conversations in the meeting.” Id. Ms. Dieng alleges other acts
of hostility without providing the exact dates. See Am. Compl.,
ECF No. 8 at 4 ¶¶ 20-21. Because Ms. Dieng only had to file an
28
EEOC charge within 180 days “of any act that is part of the
hostile work environment,” see Morgan, 536 U.S. at 118, the
Court therefore finds that all of her allegations are timely.
2. Failure to State a Claim
Having found that Ms. Dieng’s hostile work environment
claims are timely, the Court turns to the merits of those
claims. “[W]hether an environment is ‘hostile’ or ‘abusive’ can
be determined only by looking at all the circumstances. These
may include the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating,
or a mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance.” George, 407
F.3d at 416 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17,
23 (1993)). Here, Ms. Dieng alleges that certain incidents at
AIR were humiliating. See, e.g., Pl.’s Opp’n, ECF No. 11 at 10;
Am. Compl., ECF No. 8 at 3 ¶¶ 13-16, 4 ¶¶ 20-21, 5 ¶¶ 24-30. But
the alleged incidents in Ms. Dieng’s Amended Complaint were not
“sufficiently severe or pervasive to alter the conditions of
[her] employment and create an abusive working environment.”
Baloch, 550 F.3d at 1201 (citation and internal quotation marks
omitted); see also Baird, 792 F.3d at 168-69 (explaining that
“Title VII is aimed at preventing discrimination, not auditing
the responsiveness of human resources departments”).
Ms. Dieng argues that the “lies as to her performance,
29
which occurred on several occasions” constitute a hostile work
environment. Pl.’s Opp’n, ECF No. 11 at 10. Because Ms. Dieng’s
Amended Complaint incorporates by reference the 2016 performance
evaluation, see Am. Compl., ECF No. 8 at 6 ¶ 31, the Court will
consider that document for purposes of evaluating whether Ms.
Dieng has stated a claim, see McManus v. Williams, 519 F. Supp.
2d 1, 5 (D.D.C. 2007) (Sullivan, J.). 7 The Court agrees with
AIR’s argument that the 2016 performance evaluation does not
contain the phrase “negative feedback” and that the evaluation
fails to support her allegations that she received negative
feedback from others. See Def.’s Reply, ECF No. 12 at 4. The
2016 performance evaluation states, in relevant part, that “[Ms.
Dieng] pretty consistently gets feedback from others on bugs or
issues in her code when code reviews are completed.” Def.’s Ex.
1, ECF No. 9-2 at 2 (emphasis added). While AIR provided as an
exhibit to its motion to dismiss the 2016 performance
evaluation, AIR did not attach Ms. Dieng’s other evaluations to
address her other allegations—she had a “perfect record” at AIR,
Am. Compl., ECF No. 8 at 7 ¶ 40, she sought “other independent
evaluations of her work[,]” id. at 7 ¶ 41, and she “received no
7 When ruling on a Rule 12(b)(6) motion, the Court may consider
“the facts alleged in the complaint, documents attached as
exhibits or incorporated by reference in the complaint, and
matters about which the Court may take judicial notice.”
Gustave–Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002).
30
negative feedback from any of her co-worker reviewers[,]” id.
Nonetheless, such allegations are not sufficiently severe or
pervasive to state a plausible hostile work environment claim.
See Laughlin v. Holder, 923 F. Supp. 2d 204, 216-21 (D.D.C.
2013) (finding that plaintiff failed to state a hostile work
environment claim based on certain performance-based actions,
such as alleged manipulation of performance evaluations).
Ms. Dieng points to other incidents in support of her
hostile work environment claims: (1) the “denial of
teleworking,” Pl.’s Opp’n, ECF No. 11 at 10; (2) yelling at her
during staff meetings, id.; (3) ignoring her at those meetings,
id.; and (4) “constant questioning of [her] work,” Am. Compl.,
ECF No. 8 at 4 ¶ 21. This Court and other courts in this
jurisdiction have found that similar allegations of misconduct
are not sufficiently severe or pervasive to state a hostile work
environment claim. See, e.g., Outlaw v. Johnson, 49 F. Supp. 3d
88, 92 (D.D.C. 2014) (Sullivan, J.) (dismissing hostile work
environment claim where allegations of “promotion denials, a
subjective performance review, and being hired at a lower grade
than Caucasian employees” were not sufficiently severe or
pervasive); Koch v. White, 134 F. Supp. 3d 158, 167-68 (D.D.C.
2015) (finding that denials of certain accommodations, including
request for “part-time telework arrangement,” did not create
hostile work environment claim); Casey v. Mabus, 878 F. Supp. 2d
31
175, 189 (D.D.C. 2012) (finding that supervisor’s “loud and
aggressive” statements and actions of “slamm[ing] his hands on
the desk” during meeting failed to constitute hostile work
environment). Furthermore, the D.C. Circuit has held that
workplace tribulations, such as “petty insults, vindictive
behavior, and angry recriminations[,]” are not actionable under
Title VII. Brooks v. Grundmann, 748 F.3d 1273, 1277-78 (D.C.
Cir. 2014) (citation omitted). The Court therefore finds that
the factual allegations set forth in Ms. Dieng’s Amended
Complaint fail to state a hostile work environment claim.
Accordingly, the Court GRANTS AIR’s motion to dismiss as to
Counts I and II.
IV. Conclusion
For the reasons set forth above, the Court GRANTS IN PART
and DENIES IN PART AIR’s Motion to Dismiss. The Court DISMISSES
WITHOUT PREJUDICE Ms. Dieng’s hostile work environment and
gender discrimination claims. Ms. Dieng’s remaining claims are
her discrimination and retaliation claims based on her race. A
separate Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
September 26, 2019
32