United States District Court, District of Columbia
G. SULLIVAN UNITED STATES DISTRICT JUDGE
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.
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. 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
“insubordination.” Id. at 8 ¶ 44.
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.
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 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.
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.
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 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.
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 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.
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.
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. 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.
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
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 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).
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).
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 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 ...