Bernahu v. Blinken

• Decision Date: 30 November 2022
• Docket Number: Civil Action 21-459 (RBW)
• Parties: ADAM BERNAHU, Administrator of the Estate of ABEBA DESTA, Plaintiff, v. ANTONY BLINKEN,[1] in his official capacity as Secretary, U.S. Department of State, Defendant.
• Court: U.S. District Court — District of Columbia

ADAM BERNAHU, Administrator of the Estate of ABEBA DESTA, Plaintiff,
v.
ANTONY BLINKEN,^[1] in his official capacity as Secretary, U.S. Department of State, Defendant.

Civil Action No. 21-459 (RBW)

United States District Court, District of Columbia

November 30, 2022

MEMORANDUM OPINION

REGGIE B. WALTON, UNITED STATES DISTRICT JUDGE

The plaintiff, Abeba Desta,^[2] brought this civil action against the defendant, Mike Pompeo, in his official capacity as Secretary of the United States Department of State (the “Department”), asserting claims of: (1) discrimination based upon the plaintiff's national origin, and retaliation, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-3(a) (“Title VII”), see Amended Complaint (“Compl.”) ¶¶ 68-76, ECF No. 1; (2) discrimination based upon her disability, in violation of the Rehabilitation Act, 29 U.S.C. § 794, see id. ¶¶ 77-84; and (3) discrimination based upon her disability, in violation of the Americans with

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Disabilities Act (the “ADA”), 42 U.S.C. § 12101, and the ADA Amendments Act of 2008 (the “ADAAA”), 42 U.S.C. § 12101(3)(A), see id. ¶¶ 85-91. Currently pending before the Court is the Defendant's Motion to Dismiss (“Def.'s Mot.” or the “defendant's motion”), ECF No. 14, pursuant to Federal Rule of Civil Procedure 12(b)(6). Upon careful consideration of the parties' submissions,^[3] the Court concludes for the following reasons that it must grant in part and deny in part the defendant's motion.

I. BACKGROUND

A. Factual Background

The plaintiff, Abeba Desta, “was employed as an OBXtek, Inc., [c]ontractor, examining and adjudicating medical claims in the Bureau of Medical Services [ ], Finance Office, Medical Claims Section, for the United States Department of State [ ] in Washington, D.C.[,]” Compl. ¶ 20, and “worked as a [Department] [c]ontractor from approximately November 4, 2007[,] to October 19, 2016[,]” id. ¶ 21. During her employment, “[the plaintiff's first-line supervisor was Harold Hodges [ ], Budget Officer, Grade Level GS-14[,]” id. ¶ 22, and “[the plaintiff's second-line supervisor was Assefa Kidane, Deputy Executive Director, Grade Level GS-15[,]” id. ¶ 23.

The plaintiff represents that her “national origin is Ethiopian[,]” id. ¶ 17, and that she “[was] disabled, or regarded as being disabled, because she [had] been diagnosed with a chronic hearing problem since the age of seven [ ] years old[,]” id. ¶ 18. The plaintiff alleged that “[t]hroughout the course of her employment . . ., [she] was subjected to repeated hostile and demeaning comments from her first-line supervisor, Hodges.” Id. ¶ 24. “Specifically, [the p]laintiff observed that Hodges made demeaning comments on a regular basis during staff

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meetings, when she met with him one-on-one, and [when] he stopped at her cubicle from time to time.” Id. ¶ 25. These comments included Hodges stating that “‘she can't hear' and ‘she has a hearing problem[,]' . . . in the presence of other staff members[,]” id. ¶ 26; “stopp[ing] by [her] cubicle on multiple occasions and call[ing] her different nicknames mimicking her real name, like ‘Aboda' and ‘Adeba[,]'” id. ¶ 27; “at times yell[ing] these names[,] . . . [while the p]laintiff corrected him[] [and] plead[ed] with [him] not to yell at her[,]” id. ¶ 30; and “regularly, constantly, and repeatedly t[elling] her that she ‘was not fit to work in the medical claims section' and was ‘incompetent[,]'” id. ¶ 32. The plaintiff also alleges that “Hodges routinely requested to fire[,]” id. ¶ 35, employees “similarly-situated[,]” id., to the plaintiff, with respect to their national origin, see id. ¶ 40 (“Hodges['s] conduct amounted to a campaign o[f] intimidation and ultimately termination prejudiced against women of African origin[.]”). “Specifically, [the p]laintiff [contends that she] was aware that Hodges fired Lydia Hagos[,]” id. ¶ 36, and “Rachida El Alouani[,]” id. ¶ 38, both whom were of African descent, see id. ¶ 37 (“Lydia Hagos'[s] national origin is Eritrean.”); id. ¶ 39 (“Rachida El Alouani's national origin is Moroccan.”).

The plaintiff states that she “reported her treatment on multiple occasions to Ms. Greenlee, Senior Budget Analyst and [the p]laintiff's colleague, between October 2014 and October [20]16.” Id. ¶ 48. According to the plaintiff, Greenlee “was aware of Hodges['s] conduct because she had also been bullied and harassed by him, before management removed her from [his] supervision in 2012[,]” id. ¶ 52, and “observed that [the plaintiff's national origin played a role in [her] harassment because although [she] attended evening courses for writing and communication to enhance her job performance, the harassment from Hodges persisted[,]” id. ¶ 53. Greenlee also allegedly “observed that Hodges continued to behave in a demeaning manner towards [the p]laintiff because of her accent.” Id. ¶ 54 (emphasis in original).

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“[The p]laintiff was terminated on October 19, 2016[,] after ten (10) years of employment[,]” Id. ¶ 56, and “was informed . . . that her supervisor, Hodges, ‘no longer wanted her services[,]'” id. ¶ 57. The plaintiff states that she “was terminated despite being the most efficient and accurate employee in the medical claims section[,]” id. ¶ 61 (internal quotation marks omitted), as evidenced by the fact that she “created more claim records than other employees in fiscal year [ ] 2011 through 2012[,]” id. ¶ 62. Subsequent to her termination, the plaintiff participated in Equal Employment Opportunity (“EEO”) counseling. See id. ¶¶ 2-3. After receiving a Notice of Right to file on February 9, 2017, id. ¶ 3, the plaintiff “filed a formal complaint of discrimination with the Department on February 23, 2017[,]” id. ¶ 4. “Investigation of this claim was conducted, and the Report of Investigation ([‘]ROI[']) and notice of rights were sent to [the p]laintiff and her representative on November 17, 2017.” Id. ¶ 6. The complaint proceeded through the Equal Employment Opportunity Commission (“EEOC”) adjudication process, see id. ¶¶ 7-11, and “the Department issued a Final Agency Decision on November 24, 2020[,]” id. ¶ 12. The plaintiff then filed her complaint in this case on February 22, 2021, see Id. at 1, which was “within 90 days after [she] received the Notice of Right to Sue on her EEOC complaint[,]” id. ¶ 13.

B. Procedural History

On August 3, 2021, the defendant “move[d] for entry of an order staying all deadlines[,]” Joint Motion for Indefinite Stay at 1, ECF No. 7, in light of the fact that “the [p]laintiff is now deceased[,]” id. ¶ 2. On August 27, 2021, the Court granted the defendant's motion “to the extent that it s[ought] to vacate all deadlines in th[e] case, except for the deadlines governing substitution pursuant to Federal Rule of Civil Procedure 25[,]” Order at 1 (Aug. 27, 2021), ECF No. 8, and ordered the plaintiff's counsel to file a notice of death by September 13, 2021, and

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“move to substitute an administrator within ninety days after the filing of the [notice,]” id. at 2.

The plaintiff's counsel filed the notice of the plaintiff's death on September 13, 2021, see Statement of Notice of Death at 1, ECF No. 9, and a motion to substitute Adam Bernahu as the named plaintiff in his capacity as the administrator of the plaintiff's estate on December 11, 2021, see Motion to Substitute Administrator as Party at 1, ECF No. 10. The Court granted the plaintiff's motion and substituted Adam Bernahu as the named plaintiff in this case on January 13, 2022.^[4] See Minute (“Min.”) Order (Jan. 13, 2022). On February 3, 2022, the defendant filed his motion to dismiss, see Def's Mot. at 1, the plaintiff then filed her opposition to the defendant's motion on March 3, 2022, see Pl.'s Opp'n at 1, and the defendant filed his reply on March 29, 2022, see Def.'s Reply at 1.

II. STANDARD OF REVIEW

A Rule 12(b)(6) motion tests whether a complaint “state[s] a claim upon which relief can be granted[.]” Fed.R.Civ.P. 12(b)(6). “To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must contain 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 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible “when the plaintiff pleads

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factual content that allows the court to draw [a] reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).

In evaluating a motion to dismiss under Rule 12(b)(6), “the Court must construe the complaint in favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts alleged.” Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012) (internal quotation marks omitted). While the Court must “assume [the] veracity” of any “well-pleaded factual allegations” in a complaint, conclusory allegations “are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. Thus, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678 (citing Twombly, 550 U.S. at 555). Also, the Court need not “accept legal conclusions cast as factual allegations[,]” or “inferences drawn by [the] plaintiff if those inferences are not supported by the facts set out in the complaint[.]” Hettinga, 677 F.3d at 476. Finally, the Court “may consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint[,] and matters of which [the Court] may take judicial notice.” Equal Emp. Opportunity Comn'n v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).

III. ANALYSIS

The defendant argues that the Complaint should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) because: (1) for purposes of Title VII, “[the plaintiff] was a contractor and not...