Dieng v. American Institutes for Research in the Behavioral Sciences

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

YACINE DIENG

Plaintiff,
v.
No. 18-cv-1220 (EGS)
AMERICAN INSTITUTES FOR
RESEARCH IN THE BEHAVIORAL
SCIENCES,

Defendant.

MEMORANDUM OPINION

Plaintiff 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.
I. Background

A. Factual Background

The 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. 1 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

1 When citing electronic filings throughout this Opinion, the
Court cites to the ECF page number, not the page number of the
filed document.
2
“insubordination.” Id. at 8 ¶ 44.

During 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.

In 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

3
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.

Ms. 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.

Ms. 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

4
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.

Ms. 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

5
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.

Ms. 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.

6
 B. Procedural History

On May 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. 2 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. 3

2 The Amended Complaint asserts the following six counts:
(1) “Hostile Work Environment Created Against Plaintiff Because
of Her Race and Gender” under Title VII; (2) “Hostile Work
Environment Created Against Plaintiff Because of Her Race and
Gender” under DCHRA; (3) “Termination Taken Against Plaintiff on
the Basis of Race and Gender” under Title VII; (4) “Termination
Action Taken Against Plaintiff on the Basis of Race and Gender”
under DCHRA; (5) “Termination Action Taken Against Plaintiff on
the Basis of Retaliation” under Title VII; and (6) “Termination
Action Taken Against Plaintiff on the Basis of Retaliation”
under DCHRA. Am. Compl., ECF No. 8 at 9-10.
3The Amended Complaint includes the word “Gender” in the
headings for Counts I through IV. Am. Compl., ECF No. 8 at 9.
Ms. Dieng alleges that she is female. Id. at 2 ¶ 4; 2 ¶ 12. To
7
 AIR 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 adjudication. 4

II. Legal Standard

A 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

the extent that Ms. Dieng seeks to assert claims based on
gender, AIR argues that Ms. Dieng fails to include any factual
allegations to support her hostile work environment and
discrimination claims based on her gender. Def.’s Mem. in Supp.
of Def.’s Mot. to Dismiss (“Def.’s Mem.”), ECF No. 9-1 at 17;
see also Def.’s Reply, ECF No. 12 at 1-2 (citing LCvR 7(b)). By
not responding to this argument in her opposition brief, see
generally Pl.’s Opp’n, ECF No. 11, Ms. Dieng has conceded it.
See Wannall v. Honeywell, Inc., 775 F.3d 425, 428 (D.C. Cir.
2014) (“[Local Civil Rule 7(b)] is understood to mean that if a
party files an opposition to a motion and therein addresses only
some of the movant’s arguments, the court may treat the
unaddressed arguments as conceded.” (citing Hopkins v. Women’s
Div., Gen. Bd. of Global Ministries, 284 F. Supp. 2d 15, 25
(D.D.C. 2003), aff’d, 98 F. App’x 8 (D.C. Cir. 2004))).
Accordingly, the Court DISMISSES WITHOUT PREJUDICE Ms. Dieng’s
hostile work environment and discrimination claims based on her
gender (Counts I, II, III, and IV).
4 AIR requests an oral hearing on its motion to dismiss. See
Def.’s Mot. to Dismiss, ECF No. 9 at 1. The Court will not
exercise its discretion to hold a hearing. See LCvR 7(f). The
Court therefore DENIES AIR’s request for an oral hearing.
8
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).

A 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).

III. Analysis

AIR 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

9
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

not “racially charged,” “racially insensitive,” “severe,” or

“pervasive” to constitute such a claim. Id. at 10. The Court

addresses each claim in turn. 5

A. Discrimination Claims

The Court first considers Ms. Dieng’s discrimination claims

based on her race. Under Title VII, it is unlawful for an

employer “to discriminate against any individual with respect to

[her] compensation, terms, conditions, or privileges of

employment, because of such individual’s race, color, religion,

sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1) (emphasis

added). Ms. Dieng must establish “two essential elements”:

“(i) [she] suffered an adverse employment action (ii) because of

5 The Court will analyze Ms. Dieng’s Title VII and DCHRA claims
together because the legal standards for both statutes are
substantively the same. See, e.g., Burley v. Nat’l Passenger
Rail Corp., 801 F.3d 290, 296 (D.C. Cir. 2015) (recognizing that
the analysis is the same for Title VII and DCHRA claims and that
“Title VII claims and DCHRA claims thus rise and fall
together”); Williams v. District of Columbia, 317 F. Supp. 3d
195, 199 (D.D.C. 2018) (Sullivan, J.) (applying the same
analysis to Title VII and DCHRA claims).

10
the [her] race, color, religion, sex, national origin, age, or

disability.” Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C.

Cir. 2008); see also Douglas v. Donovan, 559 F.3d 549, 552 (D.C.

Cir. 2009) (“An adverse employment action is a significant

change in employment status, such as hiring, firing, failing to

promote, reassignment with significantly different

responsibilities, or a decision causing significant change in

benefits.” (citations and internal quotation marks omitted)).

“To prevail on a motion to dismiss, it is not necessary to

establish a prima facie case.” Greer v. Bd. of Trs. of the Univ.

of the D.C., 113 F. Supp. 3d 297, 310 (D.D.C. 2015) (citing

Gordon v. U.S. Capitol Police, 778 F.3d 158, 162 (D.C. Cir.

2015)). Nonetheless, Ms. Dieng “must allege facts that, if true,

would establish the elements of each claim.” Id. (citation and

internal quotation marks omitted).

It is undisputed that Ms. Dieng asserts that AIR’s unlawful

actions resulted in her termination on the basis of her race.

See Am. Compl., ECF No. 8 at 2 ¶¶ 4, 6, 12. AIR argues that Ms.

Dieng has “alleged nothing more than she is African American and

was terminated[,]” Def.’s Mem., ECF No. 9-1 at 14, and that Ms.

Dieng failed to address the arguments in its motion to dismiss

as to Counts III and IV in which Ms. Dieng alleges that she was

unlawfully terminated based on her race, see Def.’s Reply, ECF

11
No. 12 at 1-2. The Court disagrees.

While the “Argument” section in Ms. Dieng’s opposition

brief lacks a separate subheading for her discrimination claims

and her arguments could have been provided in a more direct and

clear manner to support those claims, see Pl.’s Opp’n, ECF No.

11 at 7-12, Ms. Dieng is asserting disparate treatment claims

based on her allegations of racial discrimination in light of

her arguments under the “Hostile Work Environment” subheading,

see id. at 7. Ms. Dieng explicitly references “numerous

incidents” of “disparate treatment,” id. at 9, including her

supervisor yelling at her and ignoring her during staff

meetings, id. at 2. Ms. Dieng contends that her grievances at

AIR escalated when she reported her “race claim” to the Human

Resources department, id. at 10, and that she was a “victim of

racial discrimination,” id. at 2. Because the Human Resources

department told her to “handle the conflict alone,” Am. Compl.,

ECF No. 8 at 3 ¶ 17, Ms. Dieng asserts that she reminded the

department of AIR’s policy that the department must be

“engage[d] in the diversity area to ensure that every employee

is respected and feels valued[,]” Pl.’s Opp’n, ECF No. 11 at 2.

According to Ms. Dieng, she continued to experience mistreatment

after she met with the Human Resources department. See id. at 2.

Ms. Dieng, “as the only person of color” in a particular

group at AIR, argues that she was treated differently than her

12
white co-workers, id. at 8, because her supervisors required her

to seek prior approval from management before telecommuting,

whereas her white co-workers could telecommute without prior

approval, id. at 9. Ms. Dieng points out that her supervisors

inserted falsehoods and mischaracterizations in her performance

evaluations, whereas the evaluations of her white co-workers

included true and accurate information about their performance.

Id. at 4, 8-10, 10 n.2. Ms. Dieng alleges that her supervisors

falsely accused her of touching a production system without

permission, but such permission was not required for her white

co-workers. Id. at 5 (citing Am. Compl., ECF No. 8 at 7 ¶ 43).

Indeed, she points out that she requested permission based on

the same procedure she had followed for five years. Id. And her

co-workers touched the production system without permission, but

she was the only employee to be reprimanded and fired. Am.

Compl., ECF No. 8 at 8 ¶ 43. She asserts that a week after she

met with the Human Resources department and her supervisors

concerning the accusations that she impermissibly touched the

production system, AIR terminated her. Pl.’s Opp’n, ECF No. 11

at 5; see also Am. Compl., ECF No. 8 at 7-8 ¶ 43.

AIR’s next argument—that Ms. Dieng has alleged nothing more

than she is African American and was terminated—is unavailing.

See, e.g., Def.’s Mem., ECF No. 9-1 at 14; Def.’s Reply, ECF No.

12 at 2. Construing the allegations in the light most favorable

13
to Ms. Dieng, the Court therefore finds that she has alleged

enough facts to state a disparate treatment claim based on her

race to survive the motion to dismiss. See, e.g., Jackson v.

Dist. Hosp. Partners, L.P., No. CV 18-1978 (ABJ), 2019 WL

3502389, at *5 (D.D.C. Aug. 1, 2019) (holding that plaintiff

stated a disparate treatment claim on the basis of race, sex,

and religious discrimination based on allegations that he was

wrongfully terminated for raising his voice and “other non-

Muslim, non-African-American, and female employees were treated

more favorably because they were not fired despite engaging in

similar conduct”); Winston v. Clough, 712 F. Supp. 2d 1, 10

(D.D.C. 2010) (holding that plaintiff stated a claim for racial

discrimination by alleging that he was subjected to discipline

that “was motivated by [his] race and color” and “that other co-

workers outside [his] protected class” engaged in the same

behavior for which he was disciplined “yet none was suspended or

disciplined for it”). Accordingly, the Court DENIES AIR’s motion

to dismiss as to Ms. Dieng’s discrimination claims based on race

(Counts III and IV).

B. Retaliation Claims

The Court next turns to Ms. Dieng’s retaliation claims.

Title VII “both prohibits employers from engaging in employment

practices that discriminate on the basis of race, see 42 U.S.C.

§ 2000e–2(a), and bars them from retaliating against an employee

14
‘because [she] has opposed any [such] practice,’ id. § 2000e–

3(a).” Harris v. D.C. Water & Sewer Auth., 791 F.3d 65, 68 (D.C.

Cir. 2015) (citation omitted). “In order to establish a prima

facie case of retaliation, a plaintiff must show (1) [she]

engaged in a statutorily protected activity; (2) [she] suffered

an adverse employment action; and (3) there is a causal

connection between the two.” Jackson, 2019 WL 3502389, at *5.

“[A] plaintiff need not plead each element of his prima facie

retaliation case to survive a motion to dismiss.” Id. For the

reasons explained below, Ms. Dieng has stated claims for

retaliation.

Here, it is undisputed that Ms. Dieng has sufficiently

alleged facts for the first two elements because she engaged in

protected activity when she complained to the Human Resources

department about her mistreatment in September 2015,

specifically about her Project Manager’s “disrespectful and

abusive behavior.” Am. Compl., ECF No. 8 at 2 ¶ 11. There is no

dispute that Ms. Dieng’s termination in February 2018

constitutes a materially adverse action. See id. at 2 ¶ 6, 8 ¶

44. The remaining issue is whether Ms. Dieng has alleged

sufficient facts for a causal connection between the protected

activity in 2015 and the termination in 2018. AIR argues, and

the Court disagrees, that “there are no allegations that Ms.

Dieng complained to Human Resources or anyone in AIR

15
[management] about the alleged hostile actions” and that the

Program Manager resolved her claims of mistreatment with an

apology. Def.’s Mem., ECF No. 9-1 at 15. Indeed, Ms. Dieng

alleges that she reported her claims of mistreatment to her

Staff Manager. Am. Compl., ECF No. 8 at 3 ¶ 14. And Ms. Dieng

asserts that she reported her Technical Project Manager’s

“abusive discriminatory behavior” and “abusive treatment” to her

Staff Manager during her first year in 2013. Id. at 6 ¶ 38.

Ms. Dieng alleges at least seven retaliatory actions that

were taken by her supervisors after she complained about her

mistreatment: (1) she was ignored at staff meetings, id. at 4 ¶

19; (2) her managers constantly questioned her work and made

irrelevant probes, id. at 4 ¶ 21; (3) she was required to seek

prior approval from senior management before telecommuting while

her team members telecommuted without such approval, id. at 4 ¶

22; (4) the Staff Manager reprimanded her for telecommuting

after verbally approving her request to do so, id. at 5 ¶ 26;

(5) Ms. Dieng lost her telecommuting privileges, id. at 5 ¶ 30;

(6) her supervisors ignored her repeated verbal and written

requests to address her concerns with her evaluation, id. at 6 ¶

35; (7) her supervisors rejected her initial request for a new

laptop, id. at 7 ¶ 42; and (8) her supervisors revoked her

access to the production system, id. at 8 ¶ 43.

Next, AIR contends that Ms. Dieng does not allege that the

16
alleged incidents in 2017 and 2018 were connected to her 2015

protected activity, and that “given the passage of time, there

is no reasonable inference that can be made to suggest that what

Ms. Dieng claims to have experienced in 2017 and 2018 was in any

way related to her alleged protected activity in 2015.” Def.’s

Mem., ECF No. 9-1 at 16. AIR correctly notes that “‘[t]emporal

proximity can indeed support an inference of causation, . . .,

but only where the two events are ‘very close’ in time.’” Id.

(quoting Woodruff v. Peters, 482 F.3d 521, 529 (D.C. Cir.

2007)). AIR argues that the Senior Manager—who accused Ms. Dieng

of impermissibly touching the production system that led to her

termination—lacked any knowledge about Ms. Dieng’s protected

activity in 2015. Id. at 17.

“[U]nder some circumstances, temporal proximity between an

employer’s knowledge of protected activity and an adverse

personnel action may alone be sufficient to raise an inference

of causation.” Harris, 791 F.3d at 69 (emphasis added); see also

Townsend v. United States, 236 F. Supp. 3d 280, 316 (D.D.C.

2017) (“If the causation element is predicated on temporal

proximity alone, however, that proximity must be ‘very close.’”

(citation omitted)). Here, Ms. Dieng asserts that she complained

to the Human Resources department in September 2015 about her

mistreatment and that she was terminated in February 2018. See

Am. Compl., ECF No. 8 at 2 ¶ 11, 3 ¶ 14. Ms. Dieng also reported

17
her mistreatment to her Staff Manager in 2013. Id. at 6 ¶ 38.

Viewing Ms. Dieng’s allegations in the light most favorable to

her, the allegations of her complaints in 2013 and 2015 were not

“very close” in time to her termination. Clark Cty. Sch. Dist.

v. Breeden, 532 U.S. 268, 273-74 (2001) (noting that a three- or

four-month period between an adverse action and protected

activity is insufficient to show a causal connection, and a

twenty-month period “suggests, by itself, no causality at all”);

see also Mason v. Geithner, 811 F. Supp. 2d 128, 189 (D.D.C.

2011) (finding that “approximately two years had elapsed since

[the plaintiff] had last engaged in protected activity in

connection with the [retaliatory act], precluding any potential

inference of retaliation based on temporal proximity.”), aff’d,

492 F. App’x 122 (D.C. Cir. 2012).

Relevant here, however, is AIR’s denial of Ms. Dieng’s

request to telecommute. See Am. Compl., ECF No. 8 at 5 ¶¶ 26-30.

Ms. Dieng met with the Human Resources department about the

accusations of insubordination where she “explained herself,”

id. at 5 ¶ 27, and the meeting appears to have taken place

around the time that Ms. Dieng received a “harsh reprimand about

telecommuting” from her Staff Manager, id. at 6 at ¶ 28. An

employee “can engage in ‘protected activity’ by verbally

complaining to [her] employer about unlawful discrimination.”

Jackson, 2019 WL 3502389 at *6. The United States Court of

18
Appeals for the District of Columbia Circuit (“D.C. Circuit”)

has made clear that a denial of a request to telecommute “could

constitute an adverse employment action.” Kline v. Berry, 404 F.

App’x 505, 506 (D.C. Cir. 2010); see also Burlington N. & Santa

Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (“[R]etaliation that

produces an injury or harm” is actionable if “a reasonable

employee would have found the challenged action materially

adverse, which in this context means it well might have

dissuaded a reasonable worker from making or supporting a charge

of discrimination.” (citation omitted)). Depending on the

context, “[a] schedule change in an employee’s work schedule” or

exclusion of an employee “from a weekly training lunch” could

deter a reasonable employee from complaining and therefore might

be actionable. White, 548 U.S. at 69.

Ms. Dieng alleges that the denial of her telecommuting

privileges—privileges that were enjoyed by her team members—was

disruptive. See Am. Compl., ECF No. 8 at 5 ¶ 30. Ms. Dieng

argues that the “denial of teleworking” impacted “her

performance.” Pl.’s Opp’n, ECF No. 11 at 10. The Amended

Complaint does not provide the exact date for Ms. Dieng’s “loss

of her telecommuting” privileges. Am. Compl., ECF No. 8 at 5 ¶

30. Assuming that the denial of Ms. Dieng’s telecommuting

privileges were “very close” in time to her complaints to AIR’s

management and the Human Resources department about her

19
mistreatment and reprimand for telecommuting, the Court may

infer a causal relationship. See Townsend, 236 F. Supp. 3d at

316.

“At the motion to dismiss stage, the hurdle of alleging a

causal link is not a high one.” Cavalier v. Catholic Univ. of

Am., 306 F. Supp. 3d 9, 38 (D.D.C. 2018). “Temporal proximity,

for example, may suffice . . . as may other factual allegations

that, construed in the light most favorable to the plaintiff,

would ‘plausibly’ establish this element of [the retaliation]

claim.” Id. (citations omitted). The D.C. Circuit’s decision in

Harris v. District of Columbia Water & Sewer Authority, 791 F.3d

65, 68-71 (D.C. Cir. 2015) is instructive. There, the D.C.

Circuit reversed a district court’s dismissal of a complaint

while declining to “decide whether a five-month time lag without

more would be sufficient to render [the plaintiff’s] claim

plausible because his complaint alleged more” in support of his

retaliation claim. Harris, 791 F.3d at 69. The D.C. Circuit

considered other allegations in the plaintiff’s complaint,

including that the plaintiff was “regularly commended for his

work” and made “numerous contributions to the improvement of”

the employer’s operations, as supporting the inference, at the

motion to dismiss stage, that the employer terminated the

plaintiff in retaliation. Id. (internal quotation marks and

citations omitted).

20
 “The only question before [the Court] is whether [Ms. Dieng

has] alleged facts that, taken as true, render [her] claim of

retaliation plausible.” Id. at 70; see also Iqbal, 556 U.S. at

679 (“[A] complaint that states a plausible claim for relief

survives a motion to dismiss.”). Ms. Dieng has done so. Ms.

Dieng alleges that she “became the go-to person as an expert at

fixing bugs, leading to her promotion as Lead Database

Engineer.” Am. Compl., ECF No. 8 at 2 ¶ 10. For the period of

January 1, 2016 to December 31, 2016, Ms. Dieng received an

overall performance rating of “Consistently Met Expectations” in

her performance evaluation at AIR. Id. at 6 ¶ 31. In fact, her

Manager stated that “[o]verall, the effort [Ms. Dieng] puts

forth, particularly for night and weekend deployments is

appreciated, and she is a key contributor on the team.” Def.’s

Ex. 1, ECF No. 9-2 at 2. With the exception of the Technical

Project Manager who exhibited “abusive discriminatory behavior”

towards her, Ms. Dieng alleges that she got along with the whole

team. Am. Compl., ECF No. 8 at 6 ¶ 38. Ms. Dieng challenges the

stated reasons for her termination—“performance issues” and

“insubordination.” Id. at 8 ¶ 44.

“If true, these facts would show that [Ms. Dieng’s]

termination was not attributable to [one] of the ‘two most

common legitimate reasons’ for termination: ‘performance below

the employer’s legitimate expectations[.]’” Harris, 791 F.3d at

21
69 (quoting George v. Leavitt, 407 F.3d 405, 412 (D.C. Cir.

2005)). In determining that the plaintiff’s complaint in Harris

alleged facts that, if shown, would be sufficient to state a

prime facie case of retaliation, the D.C. Circuit explained that

a showing that the plaintiff’s termination was not attributable

to the plaintiff’s performance below his employer’s legitimate

expectations was “sufficient to satisfy a plaintiff’s burden of

establishing a prima facie case at the summary judgment

stage[.]” Id. (citations omitted); see also Calhoun v.

Johnson, 632 F.3d 1259, 1261 (D.C. Cir. 2011) (“Usually,

proffering ‘evidence from which a jury could find that [the

employer’s] stated reasons . . . were pretextual . . . will be

enough to get a plaintiff’s claim to a jury.’” (quoting George,

407 F.3d at 413)). The Court therefore finds that Ms. Dieng’s

factual allegations are sufficient at this stage to state a

plausible claim for retaliation. Accordingly, the Court DENIES

AIR’s motion to dismiss as to Counts V and VI.

C. Hostile Work Environment Claims

The Court next considers Ms. Dieng’s hostile work

environment claims. “Hostile environment claims are different in

kind from discrete acts. Their very nature involves repeated

conduct.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,

115 (2002) (citation omitted). To state a hostile work

environment claim, Ms. Dieng must allege “that [her] employer

22
subjected [her] to discriminatory intimidation, ridicule, and

insult that is sufficiently severe or pervasive to alter the

conditions of [her] employment and create an abusive working

environment.” Baloch, 550 F.3d at 1201 (citations and internal

quotation marks omitted). “Although a plaintiff need not plead a

prima facie case of hostile work environment in the complaint,

the alleged facts must support such a claim.” McKeithan v.

Boarman, 803 F. Supp. 2d 63, 69 (D.D.C. 2011) (citation and

internal quotation marks omitted). In determining whether Ms.

Dieng has alleged facts to support her claim, the Court must

evaluate “the totality of the circumstances, including the

frequency of the discriminatory conduct, its severity, its

offensiveness, and whether it interferes with an employee’s work

performance.” Baloch, 550 F.3d at 1201; see also Baird, 792 F.3d

at 168 (“A hostile environment consists of several individual

acts that ‘may not be actionable on [their] own’ but become

actionable due to their ‘cumulative effect.’” (quoting Morgan,

536 U.S. at 115)). 6

Here, Ms. Dieng asserts that she was subjected to a hostile

6 Ms. Dieng relies on a Ninth Circuit decision to support her
hostile work environment claims. See Pl.’s Opp’n, ECF No. 11 at
8 (citing Vasquez v. Cty. of Los Angeles, 349 F.3d 634, 642 (9th
Cir. 2003)). The Court will not consider the out-of-Circuit
opinion because it is not binding on this Court and Ms. Dieng
provides no reasons for this Court to deviate from D.C. Circuit
precedent.
23
work environment based on racial harassment because “she was not

treated the same way that Whites were treated on the job.” Pl.’s

Opp’n, ECF No. 11 at 8. Ms. Dieng points out that “her

performance evaluation contained blatant mischaracterizations

and downright falsehoods, whereas no Caucasian was treated that

poorly[,]” id. at 8-9, and that her white co-workers had the

ability to telecommute without prior approval, but she could

only telecommute with “upper level approval[,]” id. at 9. Ms.

Dieng contends that several incidents of disparate treatment—her

supervisors yelling at her, ignoring her at staff meetings,

fabricating her performance evaluations, and revoking her

telecommuting privileges—all contributed to a hostile work

environment. Id. at 8-11. Acknowledging that “no racist comments

or utterances” were made in her presence, Ms. Dieng argues that

direct evidence is not necessary at the motion to dismiss stage.

Id. at 9 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802-05 (1973)). Finally, Ms. Dieng contends that AIR knew about

her claims of “racial harassment from the very first meeting

with [the Human Resources department]” and that she has

“recounted a number of adverse workplace events which created

for her a hostile work environment, including incidents

occurring more than 300 days prior to the filing of her Charge

with the [EECO].” Id. at 11.

AIR responds that Ms. Dieng’s allegations are insufficient

24
to “establish that the alleged hostile work environment was

based on [her] race.” Def.’s Reply, ECF No. 12 at 3. AIR argues

that “there are no allegations to connect the alleged racial

discrimination by the Program Manager in 2015, to the alleged

hostile behavior by the Staff Manager two years later in 2017”

and that “there are no allegations that the alleged actions of

the Staff Manager were racially motivated.” Id. AIR contends

that the performance evaluation, on its face, is racially

neutral and does not support Ms. Dieng’s claims that it contains

falsehoods or “negative feedback” from others. Id. at 4. AIR

argues that Ms. Dieng’s allegation—that her white co-workers had

telecommuting privileges, but she did not have the same

privileges—fails to establish that the “alleged harassment was

due to her race.” Id. AIR makes a timeliness argument with

respect to Ms. Dieng’s 2015 allegations, contending that the

allegations of yelling and ignoring her during staff meetings

are untimely because Ms. Dieng filed her EEOC charge of

discrimination in 2018. Id. at 5. Finally, AIR argues that the

2017 alleged misconduct is not sufficiently severe or pervasive

to show a hostile work environment. Id. at 6. Before addressing

each argument, the Court first turns to the parties’ timeliness

arguments.

1. Timeliness

Title VII requires the “person aggrieved” to file a charge

25
with the EEOC within 180 days “after the alleged unlawful

employment practice occurred,” but this period is extended to

300 days if the person “has initially instituted proceedings

with a State or local agency.” 42 U.S.C. § 2000e-5(e)(1); see

also D.C. Code § 2-1403.16(a) (DCHRA establishes a one-year

limitations period). Because Ms. Dieng filed the EEOC charge in

2018, Am. Compl., ECF No. 8 at 8 ¶¶ 46-47, and she does not

allege that she filed a complaint with the District of

Columbia’s Office of Human Rights, see id. at 8 ¶¶ 45-47, she

had 180 days from the time of the alleged violation to file her

EEOC charge. See Ashraf-Hassan v. Embassy of France in U.S., 878

F. Supp. 2d 164, 171 (D.D.C. 2012) (“Where Plaintiff has failed

to pursue her grievances through the state’s administrative

processes, as here, she cannot invoke the longer presentment

[300-day] window and must file her claims within the 180–day

window to be timely.”). The Court therefore finds that only the

allegations of discriminatory acts that occurred within the 180-

days window are timely for the purpose of determining Ms.

Dieng’s hostile work environment claims.

Ms. Dieng relies on National Railroad Passenger Corp. v.

Morgan, 536 U.S. 101, 113 (2002) for the proposition that “an

action against a defendant employer for a claim of hostile work

environment can include events occurring before the charge-filing

period, i.e., occurring more than 300 days before she filed her

26
claim with the EEOC.” Pl.’s Opp’n, ECF No. 11 at 11-12 (emphasis in

original). Ms. Dieng argues that “although the staff meeting

hostility occurred more than 300 days prior to [the] filing [of]

her EEOC Charge, if it is part of the same discriminatory hostile

work environment claim, those acts are included.” Id. at 12. In

response, AIR neither cites nor addresses Morgan. See Def.’s Reply,

ECF No. 12 at 5. As previously explained, the 300-day window does

not apply to Ms. Dieng’s situation. See Ashraf-Hassan, 878 F.

Supp. 2d at 171. Morgan, however, supports Ms. Dieng’s timeliness

argument.

In Morgan, the Supreme Court noted that hostile work

environment claims by “[t]heir very nature involve[ ] repeated

conduct.” 536 U.S. at 115. The Supreme Court made clear that an

unlawful employment practice “cannot be said to occur on any

particular day. It occurs over a series of days or perhaps years

and, in direct contrast to discrete acts, a single act of

harassment may not be actionable on its own.” Id. (emphasis added).

The Supreme Court explained:

A hostile work environment claim is composed
of a series of separate acts that collectively
constitute one “unlawful employment
practice.” 42 U.S.C. § 2000e–5(e)(1). The
timely filing provision only requires that a
Title VII plaintiff file a charge within a
certain number of days after the unlawful
practice happened. It does not matter, for
purposes of the statute, that some of the
component acts of the hostile work environment
fall outside the statutory time period.
Provided that an act contributing to the claim

27
 occurs within the filing period, the entire
time period of the hostile environment may be
considered by a court for the purposes of
determining liability.

Id. at 117. In other words, “a hostile work environment claim .

. . may properly be viewed as a ‘continuing violation’ under

both Title VII and the DCHRA.” Hammel v. Marsh USA Inc., 206 F.

Supp. 3d 219, 233 (D.D.C. 2016) (citing Morgan, 536 U.S. at 122;

Lively v. Flexible Packaging Ass’n, 830 A.2d 874, 890 (D.C.

2003)).

Here, AIR does not dispute that Ms. Dieng’s 2017

allegations in support of her hostile work environment claims

are timely. See Def.’s Reply, ECF No. 12 at 6. Ms. Dieng asserts

two specific acts of hostility that occurred in 2017: (1) “lies

as to her performance, which occurred on several occasions”; and

(2) the “denial of teleworking.” Pl.’s Opp’n, ECF No. 11 at 10.

Ms. Dieng’s hostile work environment theory is also based on

AIR’s alleged misconduct in 2015. See id. at 10. According to

Ms. Dieng, “[t]he yelling at [her] in staff meetings was most

humiliating. However, it became worse after she reported her

race claim to [the Human Resources department]. Then she was

totally ignored, unable to ask questions or contribute to work

conversations in the meeting.” Id. Ms. Dieng alleges other acts

of hostility without providing the exact dates. See Am. Compl.,

ECF No. 8 at 4 ¶¶ 20-21. Because Ms. Dieng only had to file an

28
EEOC charge within 180 days “of any act that is part of the

hostile work environment,” see Morgan, 536 U.S. at 118, the

Court therefore finds that all of her allegations are timely.

2. Failure to State a Claim

Having found that Ms. Dieng’s hostile work environment

claims are timely, the Court turns to the merits of those

claims. “[W]hether an environment is ‘hostile’ or ‘abusive’ can

be determined only by looking at all the circumstances. These

may include the frequency of the discriminatory conduct; its

severity; whether it is physically threatening or humiliating,

or a mere offensive utterance; and whether it unreasonably

interferes with an employee’s work performance.” George, 407

F.3d at 416 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17,

23 (1993)). Here, Ms. Dieng alleges that certain incidents at

AIR were humiliating. See, e.g., Pl.’s Opp’n, ECF No. 11 at 10;

Am. Compl., ECF No. 8 at 3 ¶¶ 13-16, 4 ¶¶ 20-21, 5 ¶¶ 24-30. But

the alleged incidents in Ms. Dieng’s Amended Complaint were not

“sufficiently severe or pervasive to alter the conditions of

[her] employment and create an abusive working environment.”

Baloch, 550 F.3d at 1201 (citation and internal quotation marks

omitted); see also Baird, 792 F.3d at 168-69 (explaining that

“Title VII is aimed at preventing discrimination, not auditing

the responsiveness of human resources departments”).

Ms. Dieng argues that the “lies as to her performance,

29
which occurred on several occasions” constitute a hostile work

environment. Pl.’s Opp’n, ECF No. 11 at 10. Because Ms. Dieng’s

Amended Complaint incorporates by reference the 2016 performance

evaluation, see Am. Compl., ECF No. 8 at 6 ¶ 31, the Court will

consider that document for purposes of evaluating whether Ms.

Dieng has stated a claim, see McManus v. Williams, 519 F. Supp.

2d 1, 5 (D.D.C. 2007) (Sullivan, J.). 7 The Court agrees with

AIR’s argument that the 2016 performance evaluation does not

contain the phrase “negative feedback” and that the evaluation

fails to support her allegations that she received negative

feedback from others. See Def.’s Reply, ECF No. 12 at 4. The

2016 performance evaluation states, in relevant part, that “[Ms.

Dieng] pretty consistently gets feedback from others on bugs or

issues in her code when code reviews are completed.” Def.’s Ex.

1, ECF No. 9-2 at 2 (emphasis added). While AIR provided as an

exhibit to its motion to dismiss the 2016 performance

evaluation, AIR did not attach Ms. Dieng’s other evaluations to

address her other allegations—she had a “perfect record” at AIR,

Am. Compl., ECF No. 8 at 7 ¶ 40, she sought “other independent

evaluations of her work[,]” id. at 7 ¶ 41, and she “received no

7 When ruling on a Rule 12(b)(6) motion, the Court may consider
“the facts alleged in the complaint, documents attached as
exhibits or incorporated by reference in the complaint, and
matters about which the Court may take judicial notice.”
Gustave–Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002).
30
negative feedback from any of her co-worker reviewers[,]” id.

Nonetheless, such allegations are not sufficiently severe or

pervasive to state a plausible hostile work environment claim.

See Laughlin v. Holder, 923 F. Supp. 2d 204, 216-21 (D.D.C.

2013) (finding that plaintiff failed to state a hostile work

environment claim based on certain performance-based actions,

such as alleged manipulation of performance evaluations).

Ms. Dieng points to other incidents in support of her

hostile work environment claims: (1) the “denial of

teleworking,” Pl.’s Opp’n, ECF No. 11 at 10; (2) yelling at her

during staff meetings, id.; (3) ignoring her at those meetings,

id.; and (4) “constant questioning of [her] work,” Am. Compl.,

ECF No. 8 at 4 ¶ 21. This Court and other courts in this

jurisdiction have found that similar allegations of misconduct

are not sufficiently severe or pervasive to state a hostile work

environment claim. See, e.g., Outlaw v. Johnson, 49 F. Supp. 3d

88, 92 (D.D.C. 2014) (Sullivan, J.) (dismissing hostile work

environment claim where allegations of “promotion denials, a

subjective performance review, and being hired at a lower grade

than Caucasian employees” were not sufficiently severe or

pervasive); Koch v. White, 134 F. Supp. 3d 158, 167-68 (D.D.C.

2015) (finding that denials of certain accommodations, including

request for “part-time telework arrangement,” did not create

hostile work environment claim); Casey v. Mabus, 878 F. Supp. 2d

31
175, 189 (D.D.C. 2012) (finding that supervisor’s “loud and

aggressive” statements and actions of “slamm[ing] his hands on

the desk” during meeting failed to constitute hostile work

environment). Furthermore, the D.C. Circuit has held that

workplace tribulations, such as “petty insults, vindictive

behavior, and angry recriminations[,]” are not actionable under

Title VII. Brooks v. Grundmann, 748 F.3d 1273, 1277-78 (D.C.

Cir. 2014) (citation omitted). The Court therefore finds that

the factual allegations set forth in Ms. Dieng’s Amended

Complaint fail to state a hostile work environment claim.

Accordingly, the Court GRANTS AIR’s motion to dismiss as to

Counts I and II.

IV. Conclusion

For the reasons set forth above, 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. Ms. Dieng’s remaining claims are

her discrimination and retaliation claims based on her race. A

separate Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan
United States District Judge
September 26, 2019

32