Mohamed v. George Wash. Univ., 1:22-cv-00812 (TNM)

CourtUnited States District Courts. United States District Court (Columbia)
Writing for the CourtTREVOR N. MCFADDEN, U.S.D.J.
Docket Number1:22-cv-00812 (TNM)
Decision Date09 August 2022




No. 1:22-cv-00812 (TNM)

United States District Court, District of Columbia

August 9, 2022



George Washington University terminated Abdulkadir Mohamed from his position at the University's library for job abandonment. Mohamed then sued the University and a third-party benefits administrator, Lincoln National Corporation (Lincoln). He alleges Defendants discriminated against him based on race in violation of 42 U.S.C § 1981, as well as discriminated and retaliated against him in violation of the Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601 et seq. Both Defendants now move to dismiss the Complaint, except as to Mohamed's FMLA retaliation claim against the University. For the reasons below, the Court will grant the motion.


Mohamed began working for George Washington University (GWU or the University) in 1990 as a library assistant. See Compl. ¶ 6, ECF No. 1-1. Mohamed-the only Ethiopian member of the library staff-ran into several issues throughout his employment. Id. He alleges


his direct supervisor was orally aggressive towards him and that an Equal Employment Office (EEO) employee was “hostile and inappropriate.” Id. In 2008, he applied for a promotion but was denied. Id. And in 2013 he was demoted. Id. Because of these alleged incidents, Mohamed filed several formal complaints of racial discrimination with the University's EEO. Id.

This suit, however, arises out of an incident that began in April 2019. Around that time Mohamed learned that his father-who lived in Italy-was seriously ill. Mohamed contacted GWU's Benefits Associate to ask about applying for leave. Id. ¶ 8. The University sent him a copy of a FMLA medical certification and instructed him to send the completed documents to Lincoln National Corporation-a third-party vendor GWU used to administer FMLA benefits. Id. ¶¶ 8, 9. Mohamed applied for leave in September 2019, after which GWU informed him the request was under review. Id. | 10. Lincoln also contacted him, conveying he had not yet been approved and had 15 days to submit a medical certification form. Id. ¶ 11.

Mohamed asked for an extension to submit the forms, which Lincoln denied. Id. The company advised him he could either fax or email the form and that failure to complete the form would lead to the denial of his leave request-although that denial could be later overturned. Id. Mohamed began leave anyway and the submission deadline passed. Id. ¶ 12. A week after the deadline Mohamed again sought (and was denied) an extension. Id. Lincoln then formally denied FMLA leave and told Mohamed to contact the University's HR department about his employment status. Id. Mohamed forged ahead and left for Italy in late October. Id. ¶ 14.

The University sent him a final warning letter, saying that if he failed to contact GWU they would interpret his silence as “job abandonment.” Id. ¶ 15. While abroad, Mohamed finally began gathering the necessary documentation. Id. ¶ 16. In early November, he sent the


medical certification form to Lincoln. Id. ¶ 17. Lincoln instructed him to contact GWU about his employment status. Id. The University eventually terminated Mohamed for job abandonment. Id. ¶ 18. Some weeks later he finally emailed GWU and learned the University had discharged him. Id. ¶ 22.

Mohamed now sues Lincoln and GWU for retaliation and discrimination in violation of the FMLA and for racial discrimination in violation of 42 U.S.C. § 1981. Defendants move to dismiss several claims under Rule 12(b)(6), and their motion is now ripe.


To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient factual allegations that, if true, “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A complaint must raise “more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Pleading facts that are “merely consistent with” a defendant's liability “stops short of the line between possibility and plausibility.” Twombly, 550 U.S. at 545-46. And in evaluating a motion to dismiss, legal conclusions or “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements” are not afforded the presumption of truth. Iqbal, 556 U.S. at 678. The Court is limited to “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.” Hurd v. District of Columbia, 864 F.3d 671, 678 (D.C. Cir. 2017).


Defendants offer several arguments in support of dismissal. Lincoln says it cannot be held liable under FMLA or § 1981 because it is not Mohamed's “employer” under either statute.


And the University argues Mohamed has not pled facts sufficient to support a claim under § 1981. The Court considers each in turn.


To state a claim to relief under FMLA, Mohamed must plausibly allege that Lincoln was his “employer.See 29 U.S.C. §§ 2611(4)(A), 2615(a). He has not done so here.

Mohamed undisputedly worked for GWU, so it might seem odd to call Lincoln his employer. But federal regulations provide that multiple entities may simultaneously be an individual's “employer” for purposes of antidiscrimination law. See 29 C.F.R. § 825.106 (the Joint Employer Regulation).[1] The regulations say a third-party may be a joint employer where it has the “right to hire, fire, assign, or direct and control the client's employees,” or it “benefits from the work that the employees perform.” Id. But that provision acknowledges certain entities, known as Professional Employer Organizations (PEOs), will “contract[] with client employers to perform administrative functions such as payroll, benefits, regulatory paperwork, and updating employment policies.” Id. § 825.106(b)(2). PEOs can sometimes qualify as a joint employer, but not where they “merely perform[] such administrative functions.” Id.

The D.C. Circuit has not adopted an authoritative interpretation of these provisions. See Miles v. Howard Univ., 653 Fed.Appx. 3, 4 (D.C. Cir. 2016). Other circuits employ a variety of standards, but they almost universally focus on whether the defendant exercised control over the employee or his working conditions. See, e.g., Moldenhauer v. Tazwell-Pekin Consol. Comms. Ctr.,


536 F.3d 640, 644 (7th Cir. 2008) (“for a joint-employer relationship to exist, each alleged employer must exercise control over the working conditions of the employee”); Grace v. USCAR, 521 F.3d 665, 666-67 (6th Cir. 2008) (finding a joint employer relationship where defendants “exercised significant control” over the employee).

Reviewing the Complaint, Mohamed has not alleged facts suggesting Lincoln has the requisite control or authority over him to qualify as a “joint employer.” He does not allege Lincoln had the right to “hire, fire, [or] assign” him. 29 C.F.R. § 825.106. Nor does he allege Lincoln could “direct and control” his day-to-day work responsibilities. Id. Indeed, the Complaint suggests the opposite-Lincoln instructed Mohamed to contact GWU about his employment status but continued to work with him on FMLA leave even after he was terminated. Compl. ¶¶17, 19, 20. It seems Lincoln is the prototypical PEO that “contracts with [GWU] to perform administrative functions such as . . ....

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