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Wa Kambala v. Checchi & Company Consulting, Inc.

United States District Court, District of Columbia

December 1, 2017



          Amit P Mehta, United States District Judge.


         Days after a heated argument with a colleague, Plaintiff Olivier Kambala wa Kambala was fired from his position with Defendant Checchi and Company Consulting, Inc., a consulting firm based in Washington, D.C., that performs international development work. Defendant retained Plaintiff to play a key role in administering a contract that the United States Agency for International Development awarded to Defendant to implement a project in Mali. Plaintiff is a citizen of Congo and worked exclusively in Mali.

         Plaintiff alleges that Defendant fired him because of his race and national origin, in violation of federal and District of Columbia law, and that his termination breached the terms of his employment. In addition, Plaintiff alleges that Defendant defamed him by telling foreign government officials and non-profit workers that Plaintiff was fired because he assaulted a superior. Defendant seeks judgment on the pleadings on these claims. For the reasons that follow, Defendant's partial motion for judgment on the pleadings is granted in part and denied in part.


         A. Factual Background

         1. Terms of Plaintiffs Employment

         This case originates out of a contract awarded to Defendant Checchi and Company Consulting, Inc., to administer a project for the United States Agency for International Development ("USAID") in Mali, known as the Mali Justice Project ("Project"). See Second Am. Compl., ECF No. 20 [hereinafter Second Am. Compl.], ¶¶ III, XI; Def.'s Answer, ECF No. 21 [hereinafter Answer], ¶ III. The terms of Defendant's contract with USAID are contained in a "Task Order" signed by Checchi Vice President James L. Agee and a USAID representative. See Second Am. Compl. ¶XI; Second Am. Compl., Ex. 1, ECF No. 20-1 [hereinafter Pl.'s Exs.], at 7-8.[1]Under the terms of the Task Order, the Mali Justice Project was to commence on December 8, 2015, and run for three to five years. Pl.'s Exs. at 7; see Second Am. Compl. ¶ XVIII n.3.

         In or around December 2015, Defendant hired Plaintiff Oliver Kambala wa Kambala, a citizen of Congo who is black, to help run the Project. Second Am. Compl. ¶¶ I, III, XXXI(c); see Pl.'s Exs. at 1-7. The parties entered into a written "Employment Agreement, " dated December 11, 2015, that memorializes the terms of Plaintiff's employment. Pl.'s Exs. at 1. Signed by Plaintiff and Agee, the Employment Agreement assigned Plaintiff the position of "Deputy Chief of Party/Component 2 Leader" for a term of one year, beginning January 4, 2016, although the contract could be extended by mutual agreement. Id. at 1, 5.

         This case turns on two provisions of the Employment Agreement. The first is Article 8 of the Employment Agreement, titled "Termination Conditions, " which lists the conditions under which Defendant or Plaintiff could terminate their relationship. Id. at 2-3. The Article contains four subsections. The first three set forth specific circumstances under which either Defendant or Plaintiff could end their arrangement, for example, if Defendant did not pay Plaintiff, if Plaintiff violated a rule of conduct contained in the Task Order, or if USAID requested a personnel change. Id. None of those three subsections are pertinent to the parties' dispute, however. The key subsection is the final one, 8(D), which grants both parties the power to terminate the relationship "with or without cause by written notice of at least thirty (30) days in advance." Id. at3. Defendant would invoke subsection 8(D) some 10 months later when it terminated Plaintiff. Answer ¶ XIX.

         The second critical provision of the Employment Agreement is Article 14, titled "Controlling Instruments." Pl.'s Exs. at 4. That Article makes clear that the "Prime Contract"- that is, the Task Order under which USAID hired Defendant-also potentially contains terms that governed Plaintiffs employment. Article 14 states, in relevant part: "In the event of a conflict between the Prime Contract and this Agreement, the Prime Contract shall control." Id. The Task Order, as it turns out, contains a provision that addresses the termination of certain key employees, including Plaintiff. Id. at 8. Clause F.7, titled "Key Positions/Personnel Requirements, " states that certain positions and persons named to those positions are "considered essential to the successful implementation of the contract." Id. The Clause goes on to state:

Prior to replacing any of the specified individuals, the Contractor must notify both the CO and the COR reasonably in advance and as soon as possible, and must submit written justification (including proposed substitutions) in sufficient detail to permit evaluation of the impact on the contact. No replacement will be made by the Contractor without the written consent of the Contracting Officer.

Id. Plaintiff is expressly identified as a "key" person whose potential removal is subject to the terms of Clause F.7.

         2. Plaintiff's Termination

         Plaintiff moved from South Africa to Mali to begin work for Defendant, and took steps to relocate his wife and children to Mali as well. Second Am. Compl. ¶¶ XV, XVI. During his tenure, Plaintiff was involved in an altercation with a white, French co-worker, Francis Saudubray. Second Am. Compl. ¶¶XLX, XX; Answer ¶¶ XIX, XX. As Plaintiff tells it, Saudubray "stormed into [Plaintiff's] office" on October 13, 2016, and began "insulting [Plaintiff], claiming that [Plaintiff] was incompetent" because he had not invited Saudubray to a recent work meeting. Second Am. Compl. ¶ XX. Saudubray "pointed his hands at [Plaintiff's] face, shouting at [him] and calling [him] all sorts of names." Id. When Plaintiff asked Saudubray to leave, "[a]n altercation occurred between" the two. Id.

         Saudubray evidently reported a different story to Defendant, claiming that Plaintiff assaulted him. Id. ¶ XX; Answer ¶ XX. This prompted Defendant to dispatch Senior Project Manager Kelly Gavagan from its District of Columbia office to Mali on October 17, 2016. Second Am. Compl. ¶ XXV; Answer ¶¶ XIX, XXV. Gavagan interviewed Plaintiff and others who were aware of the incident, though Gavagan did not speak to everyone that Plaintiff suggested might have relevant information. Second Am. Compl. ¶ XXV; Answer ¶ XXV.

         Defendant fired Plaintiff soon after. On October 19, 2016, Gavagan told Plaintiff that Defendant's "Main Office in D.C. [had] decided to terminate [Plaintiff's] employment agreement, " effective the very next day. Second Am. Compl. ¶ XXVIII; Answer ¶ XXVIII. A termination letter, on company letterhead, dated October 20, 2016, signed by Agee and bearing Defendant's Washington D.C. address, followed Gavagan's notification of termination. Id. ¶XXTX; Answer ¶ XXIX; Def.'s Errata, ECF No. 23, Attach. 1, ECF No. 23-1 [hereinafter Termination Letter]. The letter stated that Defendant was firing Plaintiff, effective immediately, pursuant to Article 8(D)-the at-will provision-of the parties' Employment Agreement. Id. ¶ XXIX; Answer ¶ XXIX; Termination Letter. The letter did not explicitly state that Plaintiff had been fired because of the altercation with Saudubray, nor did it reference the incident. Termination Letter; see also Answer ¶ XXXI(b) ("Checchi Consulting admits that it terminated Plaintiff s employment in accordance with Article 8(D) of the Employment Agreement and that it disciplined no one for what transpired between Plaintiff and [Francis] Saudubray.").

         Defendant allegedly then told others about Plaintiff s termination. According to Plaintiff, at a November 25, 2016, Rule of Law meeting at the Dutch Embassy in Bamako, Mali, an unnamed "Checchi representative" "communicated about [Plaintiffs] departure from Mali as a result (1) of [Plaintiff] beating up [his] superior and (2) being terminated by the employer for that reason." Second Am. Compl. ¶ XXXIII(a). A "dozen" representatives from embassies, countries, aid organizations, and the United Nations attended the meeting, although Plaintiff does not identify by name the people who heard the alleged defamatory statement. Id. But, according to Plaintiff, the meeting's organizer, Roelof Havemann, the First Secretary of the Dutch Embassy, either heard the statement directly or got wind of it, because Havemann confirmed to Plaintiff what the "Checchi representative" had said. Id. Plaintiff suspects that the story eventually reached two potential employers because they did not hire him for open positions that he sought after his termination. Id. ¶ XXXIII(b).

         B. Proce ...

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