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Omwenga v. United Nations Foundation

United States District Court, District of Columbia

September 30, 2019

Corrine Omwenga, Plaintiff,
v.
United Nations Foundation Defendant.

          MEMORANDUM OPINION

          TANYA S. CHUTKAN UNITED STATES DISTRICT JUDGE.

         In this 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 (NDAA).

         UNF has 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.

         I. BACKGROUND[1]

         A. Omwenga’s Hiring

         Omwenga 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.

         Before 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.

         Although 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. ¶¶ 18–21.

         B. Omwenga’s Job Responsibilities

         As a 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 . ¶¶ 25–29.

         However, 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.

         C. Complaints About Omwenga’s Work Performance

         Starting 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.

         On 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.

         Other 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.

         Omwenga 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 activity:

• (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 to USAID”;
• (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 USAID.” Id.

         During 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.

         Following 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.

         On 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 was terminated.

         On 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 ¶¶ 81–83.

         On 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.

         The 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.

         II. ...


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