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U.S. Equal Employment Opportunity Commission v. MVM, Inc.

United States District Court, D. Maryland

May 14, 2018

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
MVM, INC., Defendant.

          MEMORANDUM OPINION

          THEODORE D. CHUANG, UNITED STATES DISTRICT JUDGE.

         Plaintiff U.S. Equal Employment Opportunity Commission ("EEOC") has filed suit against Defendant MVM, Inc. ("MVM") alleging that MVM subjected a class of African employees to national origin discrimination, consisting of disparate treatment and a hostile work environment, and to unlawful retaliation, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e-2(a)(1), 2000e-3(a) (2012). Pending before the Court is MVM's Motion to Dismiss and the EEOC's Motion to Stay. Having reviewed the Amended Complaint and the briefs, the Court finds no hearing necessary. See D. Md. Local R. 105.6 (2016). For the reasons set forth below, MVM's Motion to Dismiss is GRANTED IN PART and DENIED IN PART, and the EEOC's Motion to Stay is GRANTED.

         BACKGROUND

         The EEOC is a federal agency tasked with administering, interpreting, and enforcing Title VII. MVM is a security services firm that employs security guards in the State of Maryland.

         In September 2008, the National Institutes of Health ("NIH") awarded a contract to MVM to provide security services for its four research campuses in Maryland, including the Main Campus in Bethesda, Maryland. In October 2013, MVM appointed James Smith as the project manager for the NIH contract. In that capacity, Smith was responsible for supervising, including on matters of discipline, the security personnel at each of the four campuses. Around the same time, MVM hired Christopher McHale as its Vice President and General Counsel. In that capacity, McHale was responsible for reviewing and approving employee discipline requests and handling complaints of discrimination.

         When Smith was hired, approximately half of the 400 security personnel spread across MVM's four campuses were "African or foreign-born blacks." Am. Compl. ¶ 17, ECF No. 10. Within weeks of becoming project manager, Smith began complaining that there were "too many Africans" on the NIH contract, that he was not comfortable working with foreigners, and that he "couldn't understand their accents." Id. ¶ 19. He also stated his intention to reduce the number of Africans, including by refusing to hire them. Following these statements, MVM managers and supervisors who reported to Smith began mistreating employees who were African or perceived to be African, telling them to "go back to Africa, " ridiculing their names and accents, calling them pejorative names such as "African faggot, " and instructing them not to speak in their native dialects. Id. ¶ 20.

         During Smith's tenure, MVM also engaged in a variety of negative actions against African and foreign-born black security personnel, including denying them leave, forcing them to work on their scheduled days off, forcing them to work extra hours beyond their scheduled shifts, assigning them to undesirable posts, subjecting them to heightened scrutiny, disciplining them more harshly than called for by its discipline policy, intimidating and threatening them with termination, and denying them union representation so as to facilitate the imposition of discipline, suspensions, and termination without cause. MVM also obstructed employees from complying with MVM policy. For instance, in November 2014, Smith prevented Ronald Desir, a foreign-born black employee who speaks with an accent, from renewing his security credentials in order to justify his termination. MVM also fabricated incidents of misconduct and made false accusations of poor performance, such as in December 2014, when Smith falsely accused Anthony Stephens, another foreign-born black employee who speaks with an accent, of failing to open a garage on time in order to justify his termination. After witnessing such treatment, a number of employees complained to MVM, including to McHale, about the discriminatory treatment of Africans and those perceived to be African. MVM responded to these employees' complaints by subjecting them to the same forms of mistreatment that they alleged to be discriminatory. The EEOC alleges that at least nine employees were terminated either for discriminatory or retaliatory reasons.

         Once several African or foreign-born black employees were terminated, including union leaders and the most senior African on the NIH contract, other such employees concluded that they, too, would face termination. Because termination would negatively affect their ability to retain their security clearances and thus their future job prospects, several of these individuals decided to resign. By late 2016, as a result of terminations and resignations, the number of Africans employed on the NIH contract had decreased by approximately 29 percent.

         The following nine terminated employees filed charges against MVM with the EEOC: Mermoz Sikamba-Koyangbo, Shelly Wallace, Oliver Asaah, Celedo Kemngang, Christensia Asong, Fred Woldeab, Lasberry Nwabuwa, Raymond Buhmbi, and Amadou Bah ("the Charging Parties").

         Mermoz Sikamba-Koyangbo ("Sikamba") is a naturalized United States citizen who was born and raised in the Central African Republic and speaks with an African accent. He was hired by MVM in 2003 and was promoted to Assistant Project Manager of Operations in November 2012. In that capacity, he assisted Smith with investigating employee misconduct and advised Smith regarding disciplinary outcomes. In early 2014, Smith began undermining Sikamba's role by instructing others to bypass Sikamba and report directly to him, excluding Sikamba from staff meetings, and ignoring Sikamba's recommendations to discipline non-African employees when they violated MVM rules. On April 11, 2014, Sikamba received an anonymous complaint from African employees regarding Smith's conduct, which he shared with MVM Director of Federal Security Gregory Wholean on April 18, 2014. On April 24, 2014, Sikamba met with McHale to request a transfer to a different position within MVM in which he would not work with Smith. Instead of granting a transfer, MVM terminated Sikamba that day and later replaced him with a non-African employee.

         Shelly Wallace joined MVM in 1993 and was promoted to Quality Control Manager of the Main Campus in March 2013. In that capacity, she supervised Oliver Asaah, a naturalized United States citizen who was born and raised in Cameroon and speaks with an African accent; Faustina Blay, who was born and raised in Ghana and speaks with an African accent; and Charles Roper, a non-African. In February 2014, Smith accused Asaah and Blay of failing to perform their duties and demanded that Wallace terminate their employment, telling her that "the damn Africans" think they are "running things." Id. ¶ 33. In March 2014, Asaah and Blay submitted written grievances to Wallace alleging a hostile work environment, which included Smith's derogatory statements that there were too many Africans and that he intended to reduce their numbers. On April 10, 2014, Wallace met with Wholean and Smith to discuss these grievances, and on April 14, 2014, Asaah met with Wholean for the same purpose. On April 18, 2014, MVM terminated Wallace, Blay, and Asaah for "poor performance" and replaced them with non-African employees. Id. ¶ 35.

         Celedo Kemngang is a naturalized United States citizen who was born and raised in Cameroon and speaks with an African accent. Kemngang was hired by MVM in 2007 and was elected president of the local union, the United Security & Police Officers of America ("USPOA"), in 2012. On November 6, 2013, Kemngang called Smith to introduce himself as union president. Smith immediately passed the phone to Sikamba, who happened to be present, and demanded that Sikamba translate because he could "not understand [Kemngang's] accent." Id. ¶ 37. On February 7, 2014, Kemngang was instructed to keep his NIH identification active by logging into the NIH email system, which he had not done since 2012. Kemngang requested his log-in credentials from the Information Technology Department, which provided him with incorrect credentials. When Smith learned that Kemngang had attempted to access the NIH email system with incorrect credentials, he accused him of fraudulently accessing the system. Kemngang was then suspended without being afforded union representation. When Kemngang was notified of his suspension, a manager other than Smith referred to him as "African man." Id. ¶ 38. Kemngang complained to McHale about his suspension and being called "African man." Id. He was then terminated.

         Christensia Asong, a lawful permanent resident of the United States who was born and raised in Cameroon and speaks with an African accent, was hired by MVM in 2003 and was elected vice president of the USPOA in 2012. In January 2014, during Asong's first meeting with Smith, Smith stated "there were too many [Africans]" on the NIH contract and that he "was not comfortable working with foreigners." Id. ¶ 40. Around that time, Asong began receiving complaints about Smith from African employees. On April 16, 2014, Asong met with Smith to discuss both her own complaints about his behavior and the complaints of other African employees. Asong then began to collect contact information from employees interested in filing a grievance against Smith. When Smith learned of this activity, he suspended Asong for five days without pay and then, when she returned, transferred her to an undesirable post and reduced her hours to part-time. In June 2015, Smith accused Asong of violating MVM policy by failing to check identification cards at a checkpoint. However, when Asong and her supervisor, Lieutenant Dewdney Mazie, reviewed video surveillance of the alleged infraction, they determined that Asong had, in fact, checked the identification cards. After Mazie tried to explain to Smith that there had been no violation, MVM terminated Asong on June 26, 2015 and Mazie on July 13, 2015.

         Fred Woldeab is a naturalized United States citizen who was born and raised in Eritrea and speaks with an African accent. Woldeab was hired by MVM in 2001 and was later promoted to Shift Manager at the Main Campus. On April 9, 2014, Woldeab suffered a temporary injury that required him to take leave until June 22, 2014. When Woldeab attempted to return to work after his leave, Smith did not allow him to do so, stating that his paperwork was "incomplete." Id. ¶ 43. When Woldeab submitted updated paperwork on July 1, 2014, Smith did not accept it and instead terminated Woldeab and replaced him with a non-African employee.

         Lasberry Nwabuwa is a naturalized United States citizen who was born and raised in Nigeria and speaks with an African accent. Nwabuwa was hired in 2011 as a security guard and has served as a union steward. In February 2014, Nwabuwa met with Smith to complain about the discriminatory treatment of Mambu Massaquoi, a foreign-born black employee who speaks with an accent and was terminated as a result of a fabricated incident of misconduct. On May 27, 2014, Nwabuwa sought leave to travel to Nigeria in late November and early December 2014. Although MVM approved his request and Nwabuwa purchased an airline ticket, Smith revoked this approval in September 2014. On October 8, 2014, Smith suspended Nwabuwa indefinitely without pay based on the accusations that he failed to show his identification to the guard on duty, entered the campus through an unauthorized entrance, and left his post unguarded while he moved his car. After Nwabuwa appealed this suspension, he was terminated on December 15, 2014.

         Raymond Buhmbi is a naturalized United States citizen who was born and raised in Cameroon and speaks with an African accent. Buhmbi was hired by MVM in 2009. In June 2014, Buhmbi submitted a leave request to visit his brother in Canada, which Smith rejected without explanation. Buhmbi unsuccessfully complained about the denial to McHale. On September 30, 2014, Smith accused Buhmbi of a security breach, then suspended him for five days without pay and did not afford him union representation. In February 2015, Buhmbi overheard another supervisor state that "there [were] too many Africans" on the NIH contract. Id. ¶ 51. On March 19, 2015, Smith accused Buhmbi of another security breach and again suspended him without pay. After Buhmbi met with Smith and McHale to challenge his suspension, he was terminated on March 30, 2015.

         Amadou Bah, a naturalized United States citizen, was born and raised in the Republic of Guinea and speaks with an African accent. Bah joined MVM in 2006 as a security guard. On January 31, 2015, another security guard called Bah a "fucking African faggot." Id. ¶ 54. After Bah complained to management, Smith interviewed both Bah and the officer, who admitted that he made the statement. Nevertheless, Smith suspended Bah for three days without pay for failing to report the incident to his supervisor. In March 2015, Bah filed an EEOC charge alleging discrimination on the basis of national origin and retaliation in connection with the suspension. In April 2015, Bah submitted three separate leave requests, each of which was denied without explanation. In June 2015, Bah unsuccessfully complained to McHale about Smith's actions. Around that time, Bah was informed that he was required to complete a training session. Because the scheduled dates of the training conflicted with his part-time schedule, Bah arranged to attend a separate training on a different day. When Bah informed Smith of this arrangement, Smith discouraged him from attending and assured him that he would be able to complete the training through a different arrangement. Instead, on August 5, 2015, MVM terminated Bah for "failing to attend basic guard training." Id. ¶ 54.

         After the EEOC received the Charging Parties' complaints and conducted an investigation, it issued Letters of Determination ("LODs") on November 3, 2016, finding that there was reasonable cause to believe MVM had violated Title VII and inviting MVM to engage in informal conciliation. In each letter, Rosemarie Rhodes, Director of the EEOC Baltimore Field Office, summarized the Charging Party's allegations and found reasonable cause to believe that MVM had discriminated against the Charging Party through "unequal, terms, conditions, and privileges of . . . employment because of . . . national origin, " had retaliated against the Charging Party for engaging in protected activity, or both. See, e.g., Buhmbi LOD at 1-2, Mot. Dismiss Ex. 1, ECF No. 11-2.

         In each LOD, Rhodes concluded that:

I find that there is reasonable cause to believe that since at least October 2013, Respondent has subjected a class of foreign-born black applicants and employees, particularly Africans, and black applicants and employees who were perceived to be foreign-born, all of whom applied or were assigned to the NIH contract, to disparate terms, conditions, and privileges of employment, a hostile work environment, and disparate hiring and promotion practices. I further find that Respondent subjected to retaliation and retaliatory harassment employees who opposed its unlawful practices or otherwise engaged in protected activity by, inter alia, subjecting them to heightened scrutiny, denied leave requests, and unwarranted disciplinary actions, including discharge, in violation of Title VII of the Civil Rights Act of 1964, as amended. This pattern or practice of discrimination is ongoing.

E.g., Id. at 2. In each LOD, Rhodes also stated:

Evidence obtained during the Commission's investigation revealed Project Manager James Smith openly displayed animus towards foreign-born black employees, particularly Africans, and black employees who were perceived to be foreign-born, by making derogatory remarks about their perceived national origin, subjecting them to disparate terms, conditions, and privileges of employment, thereby creating a hostile work environment. Furthermore, testimonial evidence revealed Project Manager Smith openly expressed his discomfort in working with African employees and his intent to reduce the number of employees with accents assigned to the National Institutes of Health (NIH) contract. Additionally, evidence obtained during the course of the investigation revealed that he and other members of management retaliated against, up to and including discharge, and subjected to retaliatory harassment, employees who opposed Respondent's ...

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