Frett v. Howard University

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JEANNETTE FRE'I"I``, )
)
Plaintiff, )
)
v. ) Civil Case N0. 13-551 (RJL)
)
HOWARD UNIVERSITY et al., )
, F I L E D
Defendants. ) MAR 1 0 2014
MEMORA DUM OPINIQ_§ C|erk, U.S. Dlstrict & Bankruptcy
(March l n, 2014) [Dkt_ ##13’ 14] Courts for the Dtstrlct of columbia
Jeannette Frett, an African Americar1 woman, brings this discrimination suit
against Howard University ("Howard" or "the University"); Howard’s President, Dr.
Sidney A. Ribeau; Howard’s Board of Trustees ("the Board"); and the Chairrnan of the
Board of Trustees’ Audit and Legal Committee, the Honorable L. Douglas Wilder
(collectively, "the Hovvard defendants");l as well as James "Jimmy" Jones, Howard’s
former Chief Human Resources Offrcer. See Compl. [Dkt. #l]. The non-University
Howard defendants and J ones move to dismiss all claims against them, and Howard
moves to dismiss one claim against it.z Upon consideration of the pleadings, relevant
law, and the entire record therein, both motions are GRANTED.
' Although the Howard defendants join in a single motion to dismiss, they request different relief
for the University than they do for Dr. Ribeau, the Board, and Chairman Wilder. For ease of
reference, I refer to the latter three defendants as "the non-University Howard defendants."
2 See Defs. Dr, Sidney A. Ribeau’s, Bd. of Trs. of Howard Univ.’s, Hon. L. Douglas Wilder’s,
and Howard Univ.’s Mot. to Dismiss Pl.’s Compl. [Dkt. #13]; Def. James Jones’s Mot. to
Dismiss Pl.’s Compl. [Dkt. #14].
BACKGROUND
Plaintiff’s complaint alleges the following facts, which I accept as true and
construe in her favor at this staged Howard University is a federally chartered private
historically black university that receives approximately $235,000,000 each year from the
federal government. Compl.1111 13, 15-l7. At all relevant times, Howard’s President and
Chief Executive Officer was Dr. Sidney A. Ribeau. Id. 1111 18~19. As President and CEO,
Dr. Ribeau was responsible for the University’s day-to»day decisions, practices, and
procedures. Id. 11 20. University governance fell under the purview of the Board of
Trustees, which had broad authority to exercise all powers conferred upon the University
by its Charter. Id. 11 22. Former Virginia Governor L. Douglas Wilder was a member of
the Board and the Chairrnan of the Audit and Legal Committee, which was responsible
for advising the Board on the University’s Code of Ethics and Conduct. Id. 1111 24-26.
Frett is a 53-year-old dark-skinned African American woman. Id. 1111 9, 78. In
September 2010, Howard University hired her as a consultant, and the following January,
she transitioned into a permanent position as Senior Director and Chief Talent Offrcer in
the Offlce of Human Resources. Id. 11 9. From the time of her promotion through her
termination, Frett reported directly to Howard’s Chief Hurnan Resources Offrcer and
Executive Vice President James Jones. Ia'. 1111 32, 55.
3 I am also considering those documents that are "incorporated in the complaint," E.E. O.C. v. Sr.
Francis Xavier Parochial Sch. , 117 F.3d 621, 624 (D.C. Cir. 1997), and those "upon which the
plaintiff s complaint necessarily relies," Hinton v. Corrections Corp. ofAm., 624 F. Supp. 2d 45,
46 (D.D.C. 2009) (internal quotation marks omitted).
2
Throughout her tenure, Frett had a number of interactions with J ones that she
claims created a hostile work environment and evidenced color or gender discrimination.
For instance, Jones often used the phrase "HNIC" ("Head Nigger in Charge") to refer to
himself and other high-ranking University employees, which Frett found to be "crude,
shocking, and highly offensive" and interpreted as a sign that J ones would not tolerate
anyone questioning his authority. Id. 1111 61»68. Jones also told sexual jokes and "openly
and casually discussed [his] perceived sexual prowess." Id. 1111 70-71. He ignored Frett’s
concerns about another employee’s disrespectful conduct, id. 1111 73-76, and her strong
recommendation that he replace an unqualified Director of the Employment Unit, a light-
skinned African American woman, iri 1111 95~100. In fact, Jones promoted the light-
skinned woman and gave her a pay raise, only to later replace her on the advice of a white
man, z``d. 1111 100-105. Frett, meanwhile, was denied bonuses that Jones had promised her,
supposedly because they had not been approved by the Board of Trustees, while males
with lower performance ratings received unapproved bonuses. Id. 1111 129-135, 159»»162.
On multiple occasions, Jones publicly insulted or raised his voice at female
empl0yees, see, e.g., z``d. 1111 106-107, 110-1 l l, 116-l 19, 121-122, and said he likes to
"wrestle" (z'.e., engage in "violently aggressive, public discussions") with them, id. 1111 81~
83. One day in June 2011, J ones both shouted at Frett and another female employee
during a meeting and also "walked up behind them, towering over their heads, and
provocatively asked them, ‘Have you ever worked for a black man before?"’ ld. 1111 79,
1 18-120. J ones also undermined Frett and other women by making work-related
decisions that adversely affected them_for instance, denying women the executive
coaching opportunities that were provided to men, and changing budget policies to
remove Frett’s decisionmaking authority. Id. 1111 123-124, 127. Frett ultimately came to
believe that J ones "fe[lt] superior to other African American people, especially dark-
skinned, African American females" and that he set up a "discriminatory hierarchy" with
women like her at the bottom. Id. 1111 78, 93.
On June 20, 201 l, Frett submitted her first intemal Equal Employment
Opportunity ("EEO") complaint to J ones and Antwan Lofton, Howard’s Director of the
Office of Equal Employment Opportunity & Diversity. Id. 11 142. Jones responded by
threatening Frett that if she did not retract her complaint, it would negatively impact her
career at Howard. Id. 1111 143, 145. Frett, Jones, and Lofton discussed the complaint in a
June 28 meeting, and Frett was sufficiently satisfied with the proposed resolution that she
withdrew her complaint. Id. 11 148. The situation did not improve, however, and J ones
used intermediaries to continue threatening Frett. Id. 1111 149-153. Jones also explored
the possibility of restructuring Frett’s areas of responsibility without her input, z'a'. 1111 156-
158, and shared Frett’s compensation information with her coworkers, ial 11 l60. On
November 14, 2011, Frett reinstated her EEO complaint. Id. 11 163.
During the next two weeks, Frett was out of the office on sick leave. ]d. 11 164.
On November 29, she returned to find that everything in her office had been moved
without warning into a dirty, unfurnished office outside of the Chief Human Resource
Officer’s suite. Id. 1111 164-165. ln the past, male employees were given notice of
pending relocations, and their new offices were cleaned, painted, and furnished ahead of
time. !``d. 11 168. About a week later, on December 8, Frett went on sick leave again due
to the emotional and physical stress caused by Jones. Id, 1111 176-177. The next day,
J ones announced that a male employee had assumed her responsibilities. Id. 11 181. Jones
then urged Frett to take a position in a different department. ]d. 11 186.
On December l4, 201 1, Frett filed an official EEO complaint. Id. 11 187. Whereas
male employees who had filed EEO complaints in the past were permitted to work in
other departments pending investigation, Howard compelled Frett to take administrative
leave while it reviewed her complaint. Id. 1111 188-189. The subsequent investigation was
conducted by an attomey who had a preexisting relationship with Howard, refused to
allow Frett to have counsel at an interview, and ultimately concluded there was no
discrimination without having ever met with Frett. Id. 1111 193-»206, 219.
While working for Howard, Frett investigated what she believed was a pattern and
practice at Howard of violating federal I-9 immigration laws and ERISA requirements, as
well as what she characterized as "abuse, f``raud, waste, and mismanagement of University
f``unds" resulting from a conflict of interest between Jones and a University contractor,
PRM Consulting Group ("PRM"). Id. 1111 207~208, 21 l. The conflict of interest allegedly
stemmed from Jones’s dual roles as a University officer and a senior manager at PRM,
which allowed him to award PRM no-bid contracts. Id. 1111 38-44. On February 26, 2012,
Frett filed a whistleblower complaint with Howard’s internal Auditor. Id. 1111 2l0.
Frett filed a formal charge with the Equal Employment Opportunity Commission
("EEOC") on March 27, 2012. Id. 11218.4 The next day, she leamed that Howard’s
intemal investigation had uncovered insufficient support for her informal complaints. Id.
11 219. At Howard’s behest, Frett returned to work on April 2, and she was terminated
that same day, purportedly as part of a University "reduction in force" ("RIF"). Id.
1111 138, 220~224. Although University terminations are usually merit-based, this RIF
resulted in the firing of women with higher performance reviews than some men who
remained employed. Id. 1111 140, 231-233. Two of the women fired, including Frett, had
recently filed EEOC charges against the University. Id. 1111 138-139, 225-229.
After being terminated, Frett informed the Board of Trustees and Chairrnan Wilder
about her earlier report of waste, fraud, and abuse and explained how the University had
retaliated against her for her previous EEOC and whistleblower activities. Id. 1111 23 8-
241. The Board responded by initiating an investigation to be conducted by an auditor
with a preexisting relationship with the University. Id. 1111 244-247. As of the filing of
her complaint, Frett had not been notified of the investigation’s results. Id. 11 255.
Plaintiff filed a five-count complaint in this case on April 23, 2013. Id. In it, she
alleges that the defendants engaged in color and gender discrimination in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the District of
4 She supplemented the charge on June 8, 2012. Id. 11 8.
6
Columbia Human Rights Act ("DCHRA"), D.C. Code § 2-1402.11; denied her equal pay
based on her gender in violation of the Equal Pay Act of l963, 29 U.S.C. § 206(d)(l); and
retaliated against her for filing an EEO complaint and EEOC charge in violation of Title
VII, § 2000e et seq., and the whistleblower provisions of the False Clairns Act ("FCA"),
31 U.S.C. § 3730(h). See Compl.1111 259-286. Although presented in separate briefs, the
non-University Howard defendants and Jones move to dismiss on the same grounds-
namely, that Title VII, the Equal Pay Act, and the FCA provide only for employer
liability, and the DCHRA’S one-year statute of limitations expired before plaintiff filed
her complaint.§ Howard also moves to dismiss the FCA count for failure to state a viable
claim under that statute. Plaintiff opposes both motions.°
LEGAL STANDARD
To survive a Rule l2(b)(6) 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." Ashcroji‘ v. Iqbal, 556 U.S. 662, 678 (2009) (intemal quotation marks omitted).
"A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
5 See Defs. Dr. Sidney A. Ribeau’s, Bd. of Trs. of Howard Univ.’s, Hon. L. Douglas Wilder’s, &
Howard Univ.’s Mem. of P. & A. in Supp. of Mot. to Dismiss Pl.’s Compl. (“Howard Defs.’
Mem.") [Dkt. #13-]]; Def. James Jones’s Mem. of Law in Supp. of l-Iis Mot. to Dismiss Pl.’s
Compl. ("Jones’s Mem.") [Dkt. #14].
6 See Pl.’s Mem. & Opp’n to Defs. Dr. Sidney Ribeau, Bd. of Trs. of Howard Univ., Hon. L.
Douglas Wilder, & Howard Univ.’s Mot. to Dismiss ("Pl.’s Howard Opp’n") [Dkt. #16]; Pl.’s
Mem. & Opp’n to Def. James Jones’s Mot. to Dismiss Pl.’s Compl. ("Pl.’s Jones Opp’n")
[Dkt. #l '/']. 7
alleged." Id. "[W]here the well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]’_
‘that the pleader is entitled to relief."’ Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). The
Court must "treat the complaint’s factual allegations as true" and "grant plaintiff the
benefit of all inferences that can be derived from the facts alleged." Sparrow v. Uniz‘ed
Ai'r Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (intemal quotation marks omitted).
But "the court need not accept inferences drawn by plaintiff[] if such inferences are
unsupported by the facts set out in the complaint. Nor must the court accept legal
conclusions cast in the form of factual allegations." Kowal v. MCI Commc ’ns Corp., 16
F.3d 1271, 1276 (D.C. Cir. 1994).
ANALYSIS
A. Title VII (Counts I and IV)
In her opposition briefs "[p]laintiff agrees that the proper [d]efendant in a Title VII
claim is the employer, that is Howard University and the Board of Trustees," Pl.’s J ones
Opp’n at 1, not Jones, Ribeau, or Wilder, see id.; Pl.’s Howard Opp’n at 19 (citing Gary
v. Long, 59 F.3d 1391, 1399 (D.C. Cir.), cerr. dem'ed, 516 U.S. 1011 (1995)). Plaintiff
thus concedes dismissal of Counts 1 and IV against the three individual defendants.
The Board of Trustees, on the other hand, plaintiff argues can be held liable as her
employer because it "should either be considered an identical party to Howard University
or a principal/agent of Howard University." Pl.’s Howard Opp’n at 19. The Howard
defendants disagree, arguing that claims against the Board should be dismissed because it
was not plaintiffs employer, See Howard Defs.’ Mem. at 9-l0. As one of my colleagues
recently noted in a similar case, the Board’s argument on this point "seems correct."
Johnson v. District ofColumbia, 947 F. Supp. 2d 123, 126 n.2 (D.D.C. 2013).
Fortunately, 1 need not wade into plaintiffs strained lines of reasoning because her own
complaint identifies only one "employer": Howard University.
In the very first paragraph of the complaint, Frett describes herself as "a former
employee of Howard Universz``ly" and alleges discrimination "during her employment at
Howard Universily." Compl.11 l (emphases added). Just a few pages later, she reiterates
that she "was employed continuously at Howard Unz``versity." Id. 11 10 (emphasis added).
She also alleges that defendant-1 ones was employed pursuant to an "employment contract
with Howard University," z``d. 1145 (emphasis added), which was signed by Howard’s
president on behalf of Howard University, see Employment Agreement Between Howard
University and James "Jimmy" R. J ones 111 at 9 (attached as E.x. 1 to Pl.’s J ones Opp’n)
[Dkt. #17-1]. lt is only logical to assume that plaintiffs employment agreement was
likewise with Howard University, not the Board of Trustees.
Indeed, nowhere in her complaint does Frett allege that she worked for the Board
of Trustees or that the Board had a principal/agent relationship with the University.
Those claims first appear in her opposition brief. lt is well established in our Circuit that
a plaintiff cannot overcome a motion to dismiss by alleging new facts in her responsive
pleading. See, e.g., Harrz``s v. District ofColumbia, 696 F. Supp. 2d 123, 136, 137 n.ll
(D.D.C. 20l0). Plaintiff pled in her complaint that Howard University was her employer,
so that is the defendant against which she can proceed under Title VII.?
B. DCHRA (Count II)
A DCHRA plaintiff has the choice of filing her complaint either with the D.C.
Office of Human Rights (DCOI-IR) or with a court, but regardless of which one she
chooses, she must file within one year of the alleged discrimination or discovery thereof,
D.C. Code §§ 2-l403.04(a), 2-1403.16(a). Bringing claims to the DCOHR tolls the one-
year statute of limitations for bringing those same claims to a court, § 2-1403.16(a), and
"[w]hen a charge of discrimination is filed with the EEOC in the District of Columbia, a
claim is automatically cross-filed with the [DCOHR] pursuant to a ‘worksharing
agreement’ between the two agencies," Ellis v. Georgetown Univ. Hosp., 631 F. Supp. 2d
7 Plaintiff would fare no better on the merits of her arguments. First, if the Board and University
are identical parties, then claims against the Board are duplicative of and merge with those
against the University. Cf Campbell v. District of Columbia, --- F. Supp. 2d ----, 2013 WL
5306641, at *l (D.D.C. Sept. 23, 20l3) ("Because the claims against the individual officer of the
D.C. government are duplicative of the claims against the District, the Court will merge those
claims and dismiss the officer as a party."); Johnson, 947 F. Supp. 2d at 126 n.l ("[B]ecause a
lawsuit against the Mayor acting in his official capacity is the same as a lawsuit against the
District, the Mayor’s inclusion in this lawsuit is unnecessary because it is duplicative."). Second,
even if the Board were an agent of the University, our Circuit Court has held that agents are not
individually liable under Title VII, and discrimination claims against them in their official
capacities merge with claims against employers. See Gary, 59 F.3d at 1399 (agreeing with Ninth
Circuit that "agent" in 42 U.S.C. § 2000e(b) serves only to incorporate employers’ respondeat
superior liability, not agents’ individual liability); see also Hoskins v. Howard Unz``v. , 839 F.
Supp. 2d 268, 276 (D.D.C. 2012). Furtherrnore, plaintiff s own factual assertions about the
Board_na.mely, that it "is entrusted with the governance of Howard University," Compl. 1122,
and is part of "the University’s management," z``d. 11 209 (quoting Howard’s Horline and
Whistleblower Policy and Procedure)_contradict her position that the Board is the "principal"
and the University its "agent."
10
71, 78 (D.D.C. 2009) (citing 29 C.F.R. § l60l.13(a)(4)(ii)(A), and Carter v. George
Washington Unc``v., 387 F.3d 872, 879 (D.C. Cir. 2004)). Here, none of the defendants
dispute that Frett’s March 27 and June 8, 2012 EEOC charges tolled the statute of
limitations for her claims against Howard. See Charge of Discrim. (attached as Ex. C to
Pl.’s Howard Opp’n) ("EEOC Charge") [Dkt. #16-1]; Suppl. Charge of Discrim.
(attached as Ex. A to Howard Defs.’ Mem.) (Suppl. Charge") [Dkt. #13-3]. The question
is whether, with respect to her claims against Jones and the non-University Howard
defendants, the EEOC charges toll at least tvventy-one days between plaintiff s April 2,
2012 termination and the filing of her complaint on April 23, 2013.8 1 find they do not.
A complaint filed under the DCHRA "shall state the name and address of the
person alleged to have committed the violation, hereinafter called the respondent." D.C.
Code § 2-1403.04(a) (emphasis added). 1n her charges, in the space provided below the
prompt: "NAMED1S THE EMPLOYER. . . WHO DISCRIMINATED AGAINST ME
(If more than one list below.)," plaintiff provided the name and address of only one
respondent: Howard University. See EEOC Charge at 5; Suppl. Charge at 3.
Frett nevertheless contends that he was identified as a respondent because his
name appears in the body of the charges and in a cover letter drafted by plaintiffs
counsel. See Pl.’s J ones Opp’n at 22-23. But plaintiff does not address one crucial
consideration: how J ones could have received notice of the charges or had the opportunity
3 Plaintiff does not challenge Jones’s argument that April 2, 2012 was "the last date on which she
could have been subjected to any alleged discrimination,” Jones’s Mem. at 8, nor does she point
to any discrimination discovered after that date.
l l
to participate in the EEOC conciliation process if his name and contact information were
not provided. She cites no authority for the notion that such indirect identification cfa
respondent puts him on notice of the charge or tolls the statute of limitations for claims
against him.g 1n the absence of any suggestion that J ones actually received notice or
participated in proceedings before the EEOC, 1 am compelled to dismiss the DCHRA
claim against him as barred by the statute of limitations. See, e.g., Brown v. Children ’s
Nat'! Med. Ctr., 773 F. Supp. 2d 125, 137 (D.D,C. 2011) ("Plaintiff cannot now proceed
as against the individual defendants on DCHRA claims that were neither brought within
the one-year statute of limitations nor filed with the EEOC or the DCOHR."); Anyat'be v.
Gt``lbert Sec. Serv., Inc., Civ. No. 94-2377, 1995 WL 322452, at *4 (D.D.C. May 18,
l995) (dismissing claims against two defendants because "[a] lthough they are both
mentioned in the plaintiffs [EEOC] affidavit, the plaintiff has presented no evidence (and
the Court is aware of none) that would suggest that either [defendant] was aware of the
contents of the affidavit" and because "there is no evidence that either of these defendants
was aware of the EEOC conciliation process or could have participated in the process").]o
9 ln fact, plaintiff herself cites an opinion from our Circuit Court that says "‘it makes sense, in
our view, to . . . read [EEOC charges] . . . with tveight to the construction given them by the
Commission in the matters it proceeds to investigate."’ Pl.’s Howard Opp’n at 23 (emphasis
added) (quoting Macklin v. Spector Fret'ght Sys., Inc., 478 F.2d 979, 988 (D.C. Cir. 1973)). In
this case, the EEOC considered Jones to be a "third party," not a respondent, to plaintiff s EEOC
charge. See Letter from Mindy E. Weinstein, EEOC Washington Field Office Acting Director, to
Amanda C. Dupree, Esq., Counsel for Defendant Jones, at Comment Page (Aug. 28, 2013)
(attached as Ex. B to Mot. for Leave to Fill Suppl. Mem. & Attachs in Supp. of Mot. to Dismiss
DCHRA Claims Against Def. J ames Jones) [Dkt. #21-2].
w lt bears noting that the cover letter from Frett’s attorney-as well as the fax cover sheet used to
transmit the charge to the EEOC-bear the subject line "'Re: Jearmette Frett’s Claims Agat``nst
12
As to the non-University Howard defendants, plaintiff concedes that they were not
named as respondents in the EEOC charges, see Pl.’s Howard Mem. at 23, but she asserts
that they "had actual notice of the charges against them, whether or not they were directly
named in Ms. Frett’s administrative charge," because "each [d]efendant had, at the very
least, an agency relationship with Howard University," t'd. at 24. Alternatively, she takes
the position that "when Howard University received actual notice of Ms. Frett’s EEOC
charge, the [non-University Howard defendants], would have, at a minimum, received
constructive notice as well." Id. at 25.
Plaintiff s complaint and briefs are devoid of any facts regarding when, where, or
how the non-University Howard defendants received actual notice, which means that her
entire argument turns the legal proposition that Howard’s knowledge of the EEOC charge
can be imputed to the other defendants. Unfortunately for plaintiff, that is not the law.
See U.S. v. $6,976,934.65, Plus lnterestDeposz``ted into Royal Bank of Scot. Int’l Account
No. 2029-56141070, Held in the Name afSoulburjy Ltd., 554 F.3d 123, 129 (D.C. Cir.
2009) ("‘[N]otice of facts that a principal knows . . . is not imputed downward to an
agent."’ (quoting RESTATEMENT (THIRD) oF AoENcv § 5.03 cmt. g (2006)). tn the final
analysis, the non-University Howard defendants, like Jones, did not participate in the
EEOC conciliation process and may not have even known about it because they were not
identified as respondents and their addresses were not included on the EEOC charge. The
Howard University.” EEOC Charge at 1, 2 (emphasis added).
13
DCHRA claims against them therefore must be dismissed."
C. Equal Pay Act (Count III)
Courts in this Circuit and elsewhere have recognized that the Equal Pay Act
"overlaps" with Title VII, and the two statutes should be "construed harmoniously with
the result that the principles developed under each . . . [be] applied interchangeably” with
the other. Hardy v. Bowen, Civ. No. 85-2119, 1986 WL 15710, at *8 (D.D.C. Nov. 19,
1986) (citing Coanty of Washington v. Gunther, 452 U.S. 161 (1981)), aff’d sub nom.,
Hardy v. Sullivan, 889 F.2d 291 (D.C. Cir. 1989); see also Lavin-McEleney v. Marist
Coll., 239 F.3d 476, 483 (2d Cir. 2001) ("The Equal Pay Act and Title VII must be
construed in harmony, particularly where claims made under the two statutes arise out of
the same discriminatory pay policies."); Orahood v. Bd. of Trs. ofUnz'v. of Ark., 645 F.2d
65l, 654 (8th Cir. 198l) ("In examining a sex discrimination case involving unequal
compensation, Title VII and the Equal Pay Act must be construed in harrnony."). As
under Title V11, then, only plaintiffs "employer" can be liable under the Equal Pay Act.
See Howard Unz``v. v. Watkt``ns, 857 F. Supp. 2d 67, 73 (D.D.C. 2012); Zuurbz``er v.
MedStar Health, Inc., 306 F. Supp. 2d l, 6 (D.D.C. 2004). Accordingly, plaintiffs Equal
Pay Act claim can proceed against only Howard University. See supra Part A.]z
ll lt appears that plaintiffs failure to exhaust administrative remedies might also provide an
additional ground for dismissing her Title VII and EPA claims against all defendants except the
University. But "failure to exhaust is an affirmative defense, and the burden rests with the
defendant[s],” Hayes v. Chao, 592 F. Supp. 2d 5l, 55 (D.D.C. 2008) (citing Bowen v. United
States, 106 F.3d 433, 437 (D.C. Cir. 1997)), who in this case have not even raised the argument
14
D. False Claims Act (Count V)
Finally, as under Title VII and the Equal Pay Act, FCA liability is limited to
"employers." See Yesudt``an, 270 F.3d at 972; Saunders v. District of Columbz``a, 789 F.
Supp. 2d 48, 57 (D.D.C. 2011) (citing Untted States ex rel. St``ewt``ck v. Jamieson Sct``. &
Eng ’g, Inc., 322 F.3d 73 8, 740-41 (D.C. Cir. 2003)). Plaintiff is correct that our Circuit
Court has not addressed this issue since the FCA was amended in 2009. See Fraud
Enforcement and Recovery Act of 2009, Pub. L. No. 111-21, § 4(d), 123 Stat. 1617,
1624-25. Other courts have, however, and 1 find their reasoning to be persuasive and
consistent with the logic of our Circuit’s case law. See, e.g., Lijoka v. Advantage Health
Grp., Inc., Civ. No. 13-2223, 2013 WL 5304013, at *10-12 (D, Kan. Sept. 20, 2013);
Aryai v. Forfet``ture Support Assocs., LLC, Civ. No. 10-8952, 2012 U.S. Dist. LEXIS
125227, at *19-27 (S.D.N.Y. Aug. 27, 20l2) (citing Yesudt'an, 270 F.3d at 972, for the
proposition that "even after the 2009 amendment[,] interpreting amended section 373 0(h)
to provide for individual liability is inconsistent with the [FCA’s] mandatory remedy of
reinstatement."). Once again, as Frett’s former employer, Howard University is the only
proper FCA defendant
Frett’s retaliation claim against the University must be dismissed as well because
12 Assuming arguendo that the non-University Howard defendants could be found liable under
the theory that they were "employer[s]" because they "act[ed] directly or indirectly in the interest
of an employer in relation to an employee," 29 U.S.C. § 203(d), Frett still has failed to state a
plausible claim. The complaint contains no specific allegations about these defendants’ role in
setting or supervising wages. Accordingly, there is no basis to infer that they "act[ed] directly or
indircctly" on Howard’s behalf when it came to Frett’s salary
15
she has not alleged a plausible violation of the FCA’s whistleblower provisions. To state
such a claim, plaintiff would have to show that she (1) "engaged in protected activity, that
is, acts done . . . in furtherance of an [FCA] action" and (2) "was discriminated against
because of`` that activity." United States ex rel. Yesudz``an v. Howard Unz``v., 153 F.3d 73 l,
736 (D.C. Cir. 1998) (internal quotation marks omitted). 1n her complaint in this case,
plaintiff cites a "whistleblower complaint" that she submitted to Howard’s intemal
auditor as reflecting her protected activity. See Compl. 11 210 (citing Complaint from
Jeanette Frett, Chief Talent Officer and Sr. Director-Human Resources, to Dr. Carroll
Little, internal Auditor (Feb. 16, 2012) (attached as Ex. D to Pl.’s Howard Opp’n)
("Whistleblower Compl.") [Dkt. #16-1]). Read in the light most favorable to plaintiff,
her allegations still do not meet the elements of an FCA retaliation claim.
To constitute a "protected activity," a plaintiff must be "investigating matters that
reasonably could lead to a viable [FCA] case." Yesudian, 153 F.3d at 740 (intemal
quotation marks omitted). "Mere dissatisfaction with one’s treatment on the job is not, of
course, enough. Nor is an employee’s investigation of nothing more than his employer’s
non-compliance with federal or state regulations." Id. Plaintiffs notice to the University
that "audit findings revealed a pattem of gross negligence and mismanagement . . . [of]
federally mandated 19 administration and recordkeeping," as well as "fail[ures] to comply
with federally mandated ERISA requirements," Whistleblower Compl. 1111 l, 2, fits
squarely within this last category of unprotected activities. Her complaint that Jones
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“created an environment of intimidation and hostility" that left employees "afraid to speak
out against mismanagement, inefficiencies and waste" also has no relation to any
potential FCA claim and more closely resembles an expression of dissatisfaction with her
treatment on the job. Id. 11 5.
Moreover, to establish causation, "[t]he employee must show that: (a) the
employer had knowledge the employee was engaged in protected activity; and (b) the
retaliation was motivated, at least in part, by the employee’s engaging in [that] protected
activity." Yesudtan, 153 F.3d at 736 (internal quotation marks omitted). When an
employee engages in reporting activities that could be "mistaken for routine actions in
accordance with [her] employment obligations," z``d. at 745-for example, a contract
administrator raising concerns about oversight of a government contract, z``a'. at 744 (citing
Robertson v. Bell Helz``copter Textron, Inc., 32 F.3d 948, 949-50 (Sth Cir. 1994))_courts
have ruled as a matter of law that the employer could not have known that the employee’s
actions might lead to FCA charges See, e.g., United States ex rel. Remseyer v. Centurj)
Healthcare Corp., 90 F.3d 1514, 1523 (l0th Cir. 1996); Robertson, 32 F.3d at 952.
Absent any notice that the employee is investigating FCA-typej$'aad_as opposed to
other potential problems that fall within the employee’s area of responsibility_"the
employer could not possess the retaliatory intent necessary to establish a violation of
§ 3730(h)." United States ex rel. Hopper v_ Anton, 91 F.3d 1261, 1269 (9th Cir. 1996),
Frett, by her own account, "was hired in September 2010 to conduct an assessment
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of the Employment/Recruitment Department in order to address critical deficiencies and
mitigate potentially costly risks that existed in the Office of Human Resources and the
Employment/Recruitment Department." Compl.11 94. She alleged in her whistleblower
complaint that Jones (1) had "contracted with PRM, Robinson Consulting Group (which
has a relationship with PRM) and Lee l-lecht Harrison for services that could have been
provided by current Howard HR staff"’ and had "hired PRM staff and longtime friend
Kirk Dixon of PRM to perform duties that could have been performed by current Howard
HR staff," allegedly because J ones had a financial interest in those companies and
(2) "abused his authority and mismanaged funds by increasing the salaries of select
employees without merit." Whistleblower Compl. 11113, 4. Although Frett used the word
"fraud" in her whistleblower complaint, her actual allegations did not describe any "false
or fraudulent claims" or even hint that Jones, PRM, or anyone else had "submitted false
records or demands for payment" that could lead to FCA liability. Campbell v. District of
Columbia, --- F. Supp. 2d ----, 2013 WL 5306641, at *6 (D.D.C. Sept. 23, 2013)
(dismissing retaliation claim under D.C. False Claims Act, which is "analyzed in a similar
fashion to[] a retaliation claim arising under the federal [FCA]."). "Although [plaintiff]
may have suspected that the [HR department’s contracts] were tainted by impropriety,
disclosing wasteful procedures or practices . . . does not amount to an investigation of
false or fraudulent claims." Id. (intemal quotation marks omitted).
Furthermore, because it was plaintiffs job to address deficiencies and risks in
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Howard’s HR department, there is no way that the University could have known that
plaintiffs report to the auditor constituted a step towards an FCA claim, rather than
simply a report detailing inefficiencies that she had discovered in the performance of her
job. Thus, even if her investigation and whistleblower complaint constitute "protected
activities," it would be impossible to find that the University retaliated against her for
those activities, as they were indistinguishable from her work in the HR department.
CONCLUSION
Thus, for all of the foregoing reasons the defendants’ motions to dismiss are
GRANTED. An appropriate order shall accompany this Memorandum 0pinion.
twa
mcHARD JQ_F})N
United States District Judge
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