United States District Court, District of Columbia
S. CHUTKAN UNITED STATES DISTRICT JUDGE.
employment discrimination and retaliation action, Plaintiff
Corrine Omwenga alleges eight claims against The United
Nations Foundation (UNF), her past employer: (1) violation of
the anti-retaliation provision of the Federal False Claims
Act (FCA); (2) common law wrongful termination in violation
of District of Columbia public policy; (3) discrimination
under the District of Columbia Human Rights Act (DCHRA); (4)
retaliation under DCHRA; (5) discrimination based on National
Origin/Race under Title VII of the Civil Rights Act of 1964
(Title VII); (6) discrimination based on sex under Title VII;
(7) retaliation under Title VII; and (8) whistleblower
retaliation under the National Defense Authorization Act
moved for summary judgment pursuant to Federal Rule of Civil
Procedure 56. For the reasons set forth below, the motion
will be GRANTED in part and DENIED in part.
is a black woman from Kenya who was employed by UNF as a
compliance officer from August 4, 2014 until she was
terminated on February 18, 2015. See
Plaintiff’s Response to Defendant’s Statement of
Facts (“Pl. Resp. to Def.’s SOF”), ECF No.
46-1 ¶¶ 2, 20, 92.
Omwenga’s employment at UNF, she applied for a newly
created position, Director of Business Services and Budgets,
but she was never interviewed. See Id . ¶ 11.
Instead, UNF hired Andrew McDermott, a white male. See Id
. ¶ 17. UNF contends that McDermott was interviewed
based on the experience on his resume and hired because of
his “superior performance” during his interview.
Id. ¶¶ 15, 17. UNF further argues that
Omwenga was not interviewed for the position because David
Burton, Executive Director of Budgets for the UNF, felt she
lacked the required qualifications, such as a “heavy
budgets and enterprise-level kind of view, ” which he
sought in a prospective director. Id. ¶¶
11, 12. Omwenga disputes this contention by (1) pointing to
individuals who were hired without meeting the minimum
requirements for positions, (2) noting that the Executive
Director had access to Omwenga’s resume, which divulged
her national origin, and (3) claiming that all other
candidates who were interviewed and rejected for the director
position had more experience than McDermott, but were women
or minorities. See Id . ¶¶ 11, 12, 16.
Omwenga was not interviewed for the director-level position,
she was offered an interview for the compliance officer
position, for which she was ultimately hired, at a salary
higher than initially advertised. Id. ¶¶
Omwenga’s Job Responsibilities
compliance officer, Omwenga’s job was to “ensure
that projects receiving [United States Government (USG)]
funding were fully compliant with the rules and regulations
governing the use of USG funds.” Id. ¶
24. Compliance officers also performed internal audits of the
government-funded projects, monitored project reporting
requirements, provided technical assistance when monitoring
the government grants, and raised compliance concerns about
the government grants. See Id . ¶¶
Omwenga disputes that all projects receiving USG funding were
under her purview. Id. ¶ 24. In particular, she
notes that she was not responsible for compliance of the
Mobile Hub project. Id. On that project, her role
was to assist Koki Hurley, the Grant Manager, with
compliance. See Id . ¶¶ 44–46;
Plaintiff’s Response to Defendant’s Motion for
Summary Judgment (“Pl. Resp. to Mot. Summ. J.”),
ECF No. 46, Ex. 20, Axelrod Dep. at 169:3–169:11;
Defendant’s Motion for Summary Judgment
(“Def.’s Mot. Summ. J.”), ECF No. 40, Ex.
14, Axelrod Dep. at 26–27.
Complaints About Omwenga’s Work Performance
in late September 2014, some employees began complaining
about a lack of clarity in Omwenga’s e-mails and
advice. Pl. Resp. to Def.’s SOF ¶¶
47–48, Def.’s Mot. Summ. J., Ex. 20, UNF 809.
They claimed that on several occasions, Omwenga would
reference a statute or contractual clause without making the
information accessible in laymen’s terms. See Id
. ¶¶ 46–48. These complaints were
brought mostly to Andrew Axelrod, the Executive Director of
the Mobile Hub Project. See Id . ¶¶ 24,
46–49; Def.’s Mot. Summ. J., Ex. 14, Axelrod Dep.
at 149–150, Ex. 20, UNFs 824, 842, 846, 867, 897.
Axelrod discussed Omwenga’s performance and
professionalism with Burton multiple times. See Pl.
Resp. to Def.’s SOF ¶ 49; Def.’s Mot. Summ.
J., Ex. 14, Axelrod Dep. at 149–150, 161–164.
Plaintiff asserts that she was never informed of any
complaints against her. See Pl. Resp. to
Def.’s SOF ¶¶ 52, 54–55.
November 20, 2014, Omwenga had her 90-day review with Burton,
during which he told her that she had successfully completed
the introductory period. Id. ¶¶
50–51. He also complimented her, stating that she
“had done a good job coming into a new position at the
Foundation and making it her own.” Id. ¶
51; Pl. Resp. to Mot. Summ. J., Ex. 3, Burton Dep. at
145:6–145:19. Burton contends that he was also trying
to convey to Omwenga that she needed to improve her
communication skills. Pl. Resp. to Def.’s SOF ¶
52. Omwenga disputes that Burton discussed her
communication skills, and there is no mention of the subject
in the written summary of the review. Id.; Pl. Resp.
to Mot. Summ. J., Ex. 3, Burton Dep. at 147:5–148:3.
individuals started to complain about Omwenga in December
2014 and January 2015. See Pl. Resp. to Def.’s
SOF ¶ 54; Def.’s Mot. Summ. J., Ex. 20, UNF 965,
985. Walter Cortes, UNF’s Chief Financial Officer,
stated that in December 2014 he started to believe that
Omwenga was not performing her job well. See
Def.’s Mot. Summ. J., Ex. 13, Cortez Dep. at 29. He
noted that Omwenga interrupted speakers and raised her voice
at meetings, traits that other coworkers had also mentioned.
See Id . at 29–31. Cortes also claimed that
this was the only time in his ten years at UNF that he could
recall an employee complaining about another employee’s
conduct. See Id . at 96–98. Around the end of
2014, the head of Human Resources, Maxine Somerville, was
notified about Omwenga’s performance and communication
problems. See Pl. Resp. to Def.’s SOF
¶¶ 60–61. Omwenga was not informed about
these problems. See id.
alleges that she engaged in protected activity when she
investigated UNF’s alleged fraudulent activities and
that she was terminated because of this activity.
See Mot. Summ. J., Ex. 15, Pl.’s Interrog.
Resp. No. 9. She proffered five instances of protected
• (1) on December 5, 2014, she e-mailed Camila Campo,
Cortes, and Burton about “unallowable
transactions” on a sub-award contract;
• (2) in early December 2014, she notified McDermott and
Campo about unallowable postings regarding
“transactions to projects whose award documents were
not issued yet”;
• (3) on January 29, 2015, she “requested
documentation” from Koki Hurley, Cortes, and Burton
“to justify $124, 000 in unallowable expenses charged
• (4) in late January, she gave Burton a document titled
“fraud indicators” which displayed a number of
UNF’s activities that “fell within the definition
of fraud”; and
• (5) on February 4, she met with Burton and Lara Sonti,
Senior Director for Business Services and Contracts, to
discuss “concerns about UNF’s project teams
posting unallowable charges on the contract with
the week of February 2, 2015, Hurley and Omwenga had a
lengthy e-mail exchange about how their roles coexisted on
compliance issues, as well as some missing documents.
See Pl. Resp. to Def.’s SOF ¶ 63; Pl.
Resp. to Mot. Summ. J., Ex. 30–31, E-Mail Exchange.
Hurley told Burton that Omwenga was unhelpful, accusatory,
and condescending. See Pl. Resp. to Def.’s SOF
¶¶ 62–65. On February 4, 2015, Burton and
Richard Parnell, UNF’s Chief Operating Officer, met to
discuss the issue, as well as Omwenga’s communication
style generally. Id. ¶¶ 67–72.
Burton contends that the meeting was focused on ways to
improve Omwenga’s communication style, not the
compliance issues she had raised in the e-mail. Id.;
Def.’s Mot. Summ. J., Ex. 2, Burton Dep. at
230–234. Burton further contends that, other than the
issue of Omwenga’s tone in the e-mails and the concerns
he claims were voiced at her performance review in November,
UNF did not tell Omwenga to address problems with her
communication skills. See Def.’s Mot. Summ.
J., Ex. 2, Burton Dep. at 229–234. In early February,
as a follow up to their meeting, Parnell told Burton to take
Omwenga offsite to discuss ways he could help her succeeded
at UNF. See Pl. Resp. to Def.’s SOF ¶ 70.
the meeting between Burton and Parnell, Burton and Sonti took
Omwenga to lunch on February 3, 2015. Id. ¶ 71.
Burton contends that the purpose of the lunch was to explain
to Omwenga that she could be useful to the Mobile Hub team,
and that they did not discuss the concerns Omwenga had raised
in her e-mail exchange with Hurley. Ex. 26, Def.’s
Second Interrog. Resp. No. 15 at 1–3. Omwenga, however,
claims that they talked about the issues in the e-mail
exchange, which included concerns about fraudulent charges
and reporting errors. See Pl. Resp. to Def.’s
SOF ¶ 72. Omwenga also claims that, although Sonti was
not officially “in-house counsel, ” Omwenga
viewed her as such because Sonti had a law degree and was
trained as a lawyer. Id. ¶ 72.
February 4, 2015, Parnell spoke with Kawanna Jenkins in Human
Resources to learn more about Burton’s “working
relationship” with Omwenga. Id. ¶ 73. He
explained to Jenkins that “there are other
[employees] who are complaining about working with
[Omwenga].” Id. ¶ 74. After the meeting,
and aware that employees had complained about Omwenga,
Jenkins suggested to Burton that Omwenga participate in
communications coaching. Id. ¶¶
74–76. Burton claims that he did not follow up on this
suggestion because he felt UNF reserved coaching for people
who would be receptive or would advance in the company, and
he was unsure if Omwenga met those criteria. See
Def.’s Mot. Summ. J., Ex. 2, Burton Dep. at
283–87. The UNF employee handbook indicates that
“coaching” precedes disciplinary action and that
verbal counseling is the first formal disciplinary step in
the “Conflict Resolution and Progressive
Discipline” guidelines. Pl. Resp. to Mot. Summ. J., Ex.
44, UNF handbook at 1. The handbook guidelines note that,
following verbal counseling, a “Written Warning,
Decision-Making Leave, and Investigation Suspension”
were the appropriate steps in the disciplinary process.
Id. at 1–2. Omwenga did not receive any
disciplinary action other than verbal counseling before she
February 5, 2015, Burton spoke with Omwenga about her
communication skills and tone. Pl. Resp. to Def.’s SOF
¶ 78. In an e-mail to Jenkins, Burton noted that the
meeting went well, that Omwenga recognized that there were
difficulties with the Mobile Hub team and she had explained
that she sometimes felt disrespected by the team, and that
she had a good working relationship with UNF’s other
teams. Id. ¶¶ 79–80; Def.’s
Mot. Summ. J., Ex. 29, UNF 1417. Omwenga and Burton agreed to
go over talking points and tone suggestions before the next
Mobile Hub monthly meeting. Pl. Resp. to Def.’s SOF
February 11, 2015, Burton and Omwenga met before the monthly
meeting to set communication expectations. Id.
¶ 83. Burton claims that at the meeting Omwenga raised
her voice and did not communicate effectively, although he
could not remember specifically what she did or said. See
Id . ¶ 84; Def.’s Mot. Summ. J., Ex. 2,
Burton Dep. at 297–300. Others at the meeting also said
that Omwenga was rude and condescending and interrupted
Burton and Hurley, forcing Burton to call a
“timeout” at the meeting. Def.’s Mot. Summ.
J., Ex. 30, Erbrick Decl. ¶¶ 3–6. Burton,
however, indicated it was a combination of Omwenga and
McDermott’s comments that caused the
“timeout.” See Pl. Resp. to Def.’s
SOF ¶¶ 84–89; Def.’s Mot. Summ. J., Ex.
2, Burton Dep. at 215:9–216:10.
following day, Burton met with Jenkins and told her he wanted
to fire Omwenga based on her behavior. Pl. Resp. to
Def.’s SOF ¶ 90–91; Def.’s Mot. Summ.
J., Ex. 2, Burton Dep. at 291–293. Omwenga disputes
that Burton’s decision was motivated by her behavior,
noting that Nicolas Bacon, a UNF Executive Director,
testified at his deposition that the only employee he could
recall being terminated from UNF without it following the
disciplinary policy in the employee handbook (or at least
without a written warning) was an employee who engaged in
years of bullying. See Pl. Resp. to Def.’s SOF
¶ 91. Omwenga also alleges that the termination
conversation between Burton and Jenkins occurred the same day
that Omwenga emailed Burton, Hurley, and McDermott about
consultants’ conflicts of interest and unallowable
costs charged to USAID. Id. UNF terminated Omwenga
on February 18, 2015. Id. ¶ 92.