United States District Court, District of Columbia
S. CHUTKAN, United States District Judge.
Corinne Omwenga brings this case against the United Nations
Foundation (“UNF”), alleging violations of the
False Claims Act (“FCA”), 31 U.S.C. §
3730(h), Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq., and the D.C. Human Rights Act,
D.C. Code § 2.1401.01 et seq.
(“DCHRA”). Specifically, she alleges that UNF
discriminated against her when it declined to hire her for a
director position and later terminated her employment, and
further that UNF retaliated against her when she reported
concerns about potential violations of federal law relating
to grant funding. UNF has filed a motion to dismiss. (ECF No.
21). For the reasons set forth below, Defendant's motion
Corinne Omwenga was an employee of UNF between July 2014 and
February 2015. (Second Am. Compl. (“Compl.”)
¶¶ 49, 25). She is a Black woman who was born in
Kenya and later immigrated to the United States, and she
holds two master's degrees in science and business
administration. (Compl. ¶¶ 21-22). Plaintiff states
that she has “spent many years working with nonprofit
organizations and working with grants from USAID and other
government entities.” (Id. ¶ 22). In June
2014, she applied for a Director of Budgets position with the
Business Services, Business and Reporting
(“BSBR”) department of UNF, and though she was
not selected, she was invited to interview for a Compliance
Officer position in the same department. (Id.
¶¶ 45-47). UNF offered her the position, and she
accepted and began working in July 2014. (Id.
¶¶ 48-49). UNF filled the Director position
with Andrew McDermott, a white male who Plaintiff alleges
holds a bachelor's degree and has “never worked for
a non-profit and had no experience handling government funds
prior to his employment with Defendant.” (Id.
position as Compliance Officer, Plaintiff developed policies
and procedures for how UNF employees should manage the
federal grants it receives. (Id. ¶ 59).
Plaintiff also reviewed all procurements that were funded by
these grants before they were approved by the Contracts
department, in order to perform due diligence and ensure
compliance with internal policies as well as federal laws and
regulations. (Id. ¶ 62). In the course of this
work, Plaintiff found numerous allegedly unlawful
expenditures and conflicts of interest, and she reported
these in a December 2014 e-mail to Camila Campo, whose
position is not clear, Walter Cortés, the Chief
Financial Officer of UNF, and David Burton, the Executive
Director of BSBR. (Id. ¶ 76; Def Ex. 2). She
reported additional issues the following month and alleges
that she received “pushback.” (Compl. ¶
113). Additionally, on February 4, 2015, Plaintiff met with
Burton and Lara Sonti, Counsel to UNF and Senior Director of
the Contracts department, to discuss her concerns about these
expenditures and conflicts of interest. (Id. ¶
this time, Plaintiff also came to believe she was performing
work at a Director-level and deserved a higher salary.
(See Id . ¶¶ 88-96). On December 11, 2014,
Plaintiff e-mailed Maxine Somerville, the Executive Director
of the Human Resources department, and, after laying out
examples of how the work she was performing was above and
beyond that envisioned by the job description, requested that
Somerville consider changing Plaintiffs title. (Id.
¶ 92; Def. Ex. 1). In this e-mail, Plaintiff also stated
that “[i]t feels like I face disparate treatment in my
department” because all others who report directly to
Burton, the Executive Director of BSBR, have the title
“Director.” (Compl. ¶¶ 92-93; Def. Ex.
February 18, 2015, Plaintiff was notified that she had been
terminated from her position. (Compl. ¶ 140). She
alleges that Burton told her that UNF was simply “going
in a different direction” and that a Human Resources
representative, Kawanna Jenkins, told her that the
termination was not performance-related. (Id.
¶¶ 140-42). The following week, Plaintiff filed a
complaint of discrimination and retaliation with the U.S.
Equal Employment Opportunity Commission, and she was issued a
Notice of Right to Sue letter on March 3, 2015. (Id.
first filed her Complaint under seal in May 2015, alleging
substantive violations of the False Claims Act. (ECF No. 1).
The United States elected not to intervene in March 2016, and
the court subsequently ordered the case unsealed. (ECF Nos.
4, 5). Plaintiff filed her First Amended Complaint in May
2016, and Defendant moved to dismiss the following month.
(ECF Nos. 6, 15). The parties then consented to the dismissal
of some of Plaintiff's claims as well as the filing of a
Second Amended Complaint, which was filed in July 2016. (ECF
Nos. 17, 18, 19, 20). Defendant has again moved to dismiss.
(ECF No. 21).
MOTION TO DISMISS STANDARD
motion to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to
state a claim tests the legal sufficiency of a complaint.
See Browning v. Clinton, 292 F.3d 235, 242 (D.C.
Cir. 2002). “To survive a 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.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). A claim is plausible when the
factual content allows the court to “draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. Thus, although a
plaintiff may survive a Rule 12(b)(6) motion even where
“recovery is very remote and unlikely, ” the
facts alleged in the complaint “must be enough to raise
a right to relief above the speculative level.”
Twombly, 550 U.S. at 555-56. Evaluating a 12(b)(6)
motion 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.
False Claims Act Retaliation Claim (Count I)
Count I of her Complaint, Plaintiff first alleges that UNF
violated the anti-retaliation provision of the FCA, 31 U.S.C.
§ 3730(h), when it terminated her after she investigated
and reported conduct that she believed violated the False
Claims Act. (Compl. ¶¶ 147-56). In order to state a
retaliation claim under the FCA, Plaintiff must show
“(1) that [she] engaged in protected activity
(‘acts done . . . in furtherance of an action under
[the FCA]'); and (2) that [she] experienced
discrimination ‘because of' [her] protected
activity.” Shekoyan v. Sibley Int'l, 409
F.3d 414, 422 (D.C. Cir. 2005) (quoting 31 U.S.C. §
3730(h)). Further, “[t]o establish the second element,
the employee must demonstrate [both] that the employer had
knowledge of the employee's protected activity and that
the retaliation was motivated by the protected
activity.” Id. (citing United States ex
rel. Yesudian v. Howard Univ., 153 F.3d 731, 736 (D.C.
as here, a plaintiff's normal job responsibilities
include investigating and reporting legal compliance issues,
the plaintiff “must overcome the presumption that they
are merely acting in accordance with their employment
obligations to put their employers on notice.”
United States ex rel. Williams v. Martin-Baker Aircraft
Co., 389 F.3d 1251, 1261 (D.C. Cir. 2004) (internal
quotation omitted). While “[t]hreatening to file a qui
tam suit or to make a report to the government . . . clearly
is one way to make an employer aware[, ] . . . it is not the
only way, ” Yesudian, 153 F.3d at 744, as
“when an employee acts outside [her] normal job
responsibilities or alerts a ...