Hu v. K4 Sols.
| Decision Date | 12 March 2020 |
| Docket Number | Civil Action No. 18-cv-1240 (TSC) |
| Parties | Ruifang Hu, Plaintiff, v. K4 Solutions, Inc., and RightDirection Technology Solutions LLC, Defendants. |
| Court | U.S. District Court — District of Columbia |
Plaintiff Ruifang Hu has sued her former employers, K4 Solutions, Inc. ("K4") and RightDirection Technology Solutions LLC ("RDTS"), alleging violations of numerous federal and D.C. employment laws. Defendants jointly move to dismiss the Amended Complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). (ECF No. 13 ("Def. Br.").) RDTS separately moves to dismiss under Rule 12(b)(6) on the ground that it was not Hu's joint employer. (ECF No. 17 ("RDTS Br.").)
Hu brings eight claims against both Defendants: wrongful discharge in violation of D.C. public policy (Count I); race discrimination and retaliation in violation of 42 U.S.C. § 1981 (Counts V and VI); sex, race, and national origin discrimination and retaliation in violation of the District of Columbia Human Rights Act, D.C. Code § 2-1402.11 ("DCHRA") (Count VII); violation of the Equal Pay Act, 29 U.S.C. § 206(d)(1) et seq. (Count VIII); defamation (Count IX); violation of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA") (Count X), and; violation of the D.C. Accrued Sick and Safe Leave Act, D.C. Code § 32-531-02 ("D.C. Leave Act") (Count XI).
Hu also brings three claims against K4 alone: race, sex, and national origin discrimination, hostile work environment, and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII") (Counts II, III, and IV).
Having reviewed the parties' submissions, the court will DENY in part and GRANT in part Defendants' motion to dismiss and DENY RDTS's motion to dismiss.
The U.S. Customs and Border Protection ("CBP") administers an Electronic Visa Update System Call Center ("Call Center") for certain visa holders to manage their biographic information. CBP contracted with K4 and RDTS to manage the Call Center. (Id. ¶¶ 5-8.) Hu, a woman of Chinese descent and national origin, worked as a customer service representative at the Call Center from August 2016 until March 2017. (Id. ¶ 4.) Hu claims she was an exemplary employee during her short tenure at the Call Center, and K4 gave her a certificate of appreciation for her performance. (Id. ¶¶ 18-20.) While K4 hired Hu, both K4 and RDTS managed the Call Center and supervised her. (Id. ¶¶ 4, 9.)
Shortly after she began work at the Call Center, Hu interviewed for a supervisor position. (Id. ¶¶ 11-12.) Her interviewer told her she was the best candidate and congratulated her on being offered the position. (Id. ¶ 13.) That offer, however, was "immediately revoked" by K4's Vice President, Marlene Duvall, because Hu "failed to speak more like an American." (Id. ¶ 13.) Duvall later purportedly told others she "preferred a white male" for the position. (Id.) K4 then consecutively hired two less qualified white men for the supervisor position. (Id. ¶¶ 14-15.) Each was quickly fired, one for not meeting the job requirements and the other because CBP complained he lacked the necessary Chinese language skills for the position. (Id.) K4 then promoted Abigail Johnson, a woman of Chinese descent, for the supervisor position in December2016. (Id. ¶ 21.) While Johnson had only worked at K4 for two weeks and was less qualified than Hu, Duvall allegedly promoted Johnson because she could "speak more like an American" and had married a white man. (Id. ¶¶ 21-22.) Hu was denied the opportunity to apply for promotion to supervisor again because Defendants did not post the vacancy. (Id. ¶ 22.)
In January 2017, RDTS created a new manager position at the Call Center and hired Alice Yeh, who had no prior experience. (Id. ¶¶ 37-38.) Yeh is a woman of Taiwanese descent, who was raised in the United States. (Id. ¶ 38.) Hu did not apply for the position because Defendants did not post it. (Id. ¶¶ 37-38.)
Hu then clashed with her direct supervisor, Johnson, who told Hu she did not "belong here and should leave," stood behind her chair "frequently observing her stance and manner," "kept notes on her whereabouts and work," questioned CBP officers about her assignments, commented on her conversations and activities, "spied" on her emails, and gave her worse shifts and fewer hours. (Am. Compl. ¶¶ 24-25, 27-28.) Hu complained about Johnson's behavior to Duvall and another K4 Vice President, Bethea, in December 2016. (Id. ¶ 26.) They "refused to listen" and informed Hu that because Johnson was her superior, Johnson could monitor her. (Id.) Bethea did, however, direct Hu to follow up with him if she experienced any retaliation. (Id. ¶ 31.)
After her complaint, Defendants gave Hu less desirable shifts and reduced her hours from approximately 40 to 15 each week. (Id. ¶ 28-29.) Hu claims that Johnson and Duvall also gave preferential treatment to favored employees with whom it was "commonly thought" they had intimate relationships. (Id. ¶¶ 32-35.) Those preferred employees were given more guidance, no discipline for misconduct, longer and better shifts, and more freedom in scheduling; Hu'srequests for schedule changes were rejected. (Id.) Hu again complained to Bethea and Duvall and received no response. (Id. ¶ 31.)
Hu also complained to Bethea and Duvall about being paid significantly less than the male customer service representatives and received no response. (Id. ¶¶ 31, 108, 109.) Hu and her coworkers also raised the unequal pay issue with K4's President; he rejected their request and told them that the male employee who disclosed his salary should not have done so. (Id. ¶¶ 109, 110.)
Finally, Hu made one more complaint regarding how Defendants assisted certain visa holders. Defendants had directed their employees not to assist visa holders who used virtual private network ("VPN") software to submit information to the Call Center in order to circumvent China's internet restrictions. (Id. ¶ 39.) On March 17, 2017, Hu emailed Johnson and others and told them that denying assistance to applicants using VPN software unfairly discriminated against Chinese visa holders based on political views and race. (Id. ¶¶ 40, 47(a).) Hu also "voiced her objection to discrimination in Defendant's hiring and promotion decisions." (Id. ¶ 41.) Defendants fired Hu the next day, when she was to begin medical leave. (Id. ¶¶ 42-43.) Yeh telephoned and texted Hu to inform her she was terminated "because her March 17, 2017 emailing was viewed as 'illegal.'" (Id. ¶ 42.) Defendants announced Hu's termination to the Call Center office and CBP officers. (Id. ¶ 120.)
A motion to dismiss under Rule 12(b)(6) for failure to state a claim tests the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). The court does not assess the truth of what is asserted nor "whether a plaintiff has any evidence to back up what is in the complaint." Id. (citation omitted). "To survive a motion to dismiss, a complaintmust 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) (internal quotation marks and citation omitted). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (citation omitted). "Factual allegations must be enough to raise a right to relief above the speculative level" and move plaintiff's claims "across the line from conceivable to plausible." Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555, 570 (2007). Facts that are "merely consistent" with a defendant's liability do not meet the plausibility standard. Iqbal, 556 U.S. at 678 (citation omitted).
The court presumes the truth of a plaintiff's factual allegations, see Iqbal, 556 U.S. at 679, and construes 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). This presumption does not apply, however, to a "legal conclusion couched as a factual allegation." Iqbal, 556 U.S. at 678; see Ralls Corp. v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 315 (D.C. Cir. 2014) ().
Both Defendants move to dismiss the Amended Complaint, arguing that it fails to state claims on which relief can be granted. RDTS separately moves to dismiss on the ground that it was not Hu's employer.
RDTS argues that Hu has not pleaded that RDTS jointly employed Hu, and therefore Hu cannot state claims against RDTS for wrongful discharge in violation of public policy,discrimination and retaliation, or wage violations of the Equal Pay Act or FLSA. (RDTS Br. at 6-9, 11-12.)
To determine whether a plaintiff worked for a joint employer in employment discrimination cases, courts in this Circuit have looked to the test articulated in NLRB v. Browning-Ferris Indus. of Pa., Inc., 691 F.2d 1117, 1123 (3d Cir. 1982). See, e.g., Redd v. Summers, 232 F.3d 933, 937-38 (D.C. Cir. 2000) ().1 Under Browning-Ferris, two businesses are joint employers when they "share or co-determine those matters governing essential terms and conditions of employment." Coles, 471 F. Supp. at 50 (quoting Browning-Ferris, 691 F.2d at 1124). Whether an alleged joint employer "retain[s] for itself sufficient control" over the "terms and conditions" of the alleged joint employee's employment is "essentially a...
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