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Harmon v. Dyncorp International, Inc.

United States District Court, E.D. Virginia, Alexandria Division

February 6, 2015



LEONIE M. BRINKEMA, District Judge.

Before the Court is Defendant's Motion to Dismiss Plaintiffs' Second Amended Complaint. For the reasons stated during the oral argument of the motion and in this opinion, the motion will be granted.


On December 31, 2013, plaintiffs filed their first Complaint against the parent company of their former employer, [1] alleging that the defendant refused to pay them for work performed and discriminated against them on various bases, including race. Defendant timely filed a motion to dismiss the Complaint. Rather than oppose the motion, plaintiffs filed their First Amended Complaint ("FAC").

In the FAC, plaintiffs asserted common law claims and claims under 42 U.S.C. § 1981, which prohibits discrimination in contracting. The FAC requested aggregate actual damages of $1, 001, 515.00 and punitive damages of $5 million. Defendant moved to dismiss the FAC on several grounds, arguing primarily that the written employment agreements with each plaintiff contained an enforceable forum selection clause and that the named defendant was an entity distinct from plaintiffs' actual employer.

On July 9, 2014, the Court held a hearing on the motion to dismiss at which it dismissed the entire FAC without prejudice. In doing so, the Court expressed a number of concerns regarding the FAC, including that none of the plaintiffs reside in this district or have had any meaningful contact with this district and that the claims of the five plaintiffs were sufficiently different that there was no proper basis for them to be in one lawsuit. Tr. Mot. Hr'g 3-4, July 9, 2014. The Court also expressed concern that the wrong defendant had been named and that, although only one defendant was named in the caption, the FAC often referred to "defendants, " in the plural. Id. at 4. In addition, the Court chided plaintiffs for the excessively high punitive damages claim, which was likely tainting the case against settlement. Id. at 5. Lastly, the Court found that the FAC was "so vaguely pled" as to suggest that counsel had not adequately investigated these five plaintiffs and their claims. Id. at 7. For these reasons, the Court dismissed the FAC without prejudice and gave plaintiffs 30 days to refile. Id. at 7-8.

On September 11, 2014, after receiving a one-month extension of their deadline, plaintiffs filed their Second Amended Complaint under seal, adding a cause of action under the federal False Claims Act. The Court dismissed this complaint and ordered plaintiffs to refile a second amended complaint omitting the False Claims Act allegations. Order at 2, Oct. 8, 2014. Plaintiffs then filed a revised version of the Second Amended Complaint ("SAC"), which raises all of the same claims as the FAC had and which failed to correct most of the Court's concerns. Defendant has again moved to dismiss the entire complaint.

Plaintiffs Cynthia Harmon ("Harmon"), Frazier Shack ("Shack"), Yvetta Horsford Smith ("Smith"), Shondale Alford ("Alford"), and Melvin Riley ("Riley") are former employees of DynCorp FZ-LLC ("DynCorp FZ" or "DIFZ"), a foreign entity established in Dubai, United Arab Emirates. Second Am. Compl. ("SAC") ¶ 14(d). Plaintiffs allege that DIFZ is controlled by either DynCorp International Inc. ("DynCorp Inc.") or by DynCorp Inc.'s wholly-owned subsidiary, DynCorp International LLC ("DynCorp LLC"). SAC ¶¶ 12, 14(a), 14(e); see also SAC ¶¶ 75, 77. DynCorp Inc., the only named defendant in this action, is a Delaware corporation headquartered in Virginia. SAC ¶ 14(a). DynCorp LLC is a Delaware company headquartered in Fort Worth, Texas. SAC ¶ 12.

All the plaintiffs are African-Americans who signed written Foreign Service Employment Agreements ("FSEAs" or "written agreements") to work for DynCorp FZ in Afghanistan in support of the LOGCAP IV contract with the U.S. military.[2] SAC ¶¶ 12, 15. Plaintiffs allege that they were promoted to positions for which they were never paid and that they were discriminated against on various bases, including race. SAC ¶ 15. Other than those similarities, each plaintiffs work for DynCorp FZ involved different intervals between 2009 and 2013, different job titles and duties, and different supervisors.

Harmon, a resident of Georgia, began working in Kandahar, Afghanistan, in November 2009[3] as a Help Desk Specialist pursuant to her FSEA with DynCorp FZ. SAC ¶ 17; Mem. Supp. Def.'s Mot. Dismiss Pls.' Second Am. Compl. ("Def.'s Mem."), Ex. 1, at 1 (Harmon's December 2009 FSEA); Mem. Supp. Pls.' Opp'n Def.'s Mot. Dismiss ("Pls.' Opp'n"), Ex. 1 ¶ 3 (Harmon's Declaration). She was recruited for this job while working in Afghanistan for another employer, KBR. SAC ¶ 17. Harmon alleges that she was promoted to Aviation Supervisor in June 2011 and then eventually promoted to Flight Operations Supervisor but was never paid for either position. SAC ¶ 18. When Harmon complained to unidentified individuals in management about her incorrect salary, she was threatened with removal from her private sleeping quarters and placement in a sleeping car with five others. SAC ¶ 20. At some point, Harmon also complained to "headquarters in Fort Worth, Texas" regarding her pay issues, but the company denied her claim. SAC ¶ 19. In November 2011, Harmon voluntarily resigned, although she alleges that defendant's refusal to properly pay her constituted a wrongful constructive discharge. SAC ¶¶ 20-21. She now seeks $326, 975 in lost wages.[4] SAC ¶ 22.

Smith, a resident of Texas, began working in Kandahar in November 2010 as a Movement Control Coordinator pursuant to a FSEA with DynCorp LLC. SAC ¶¶ 9, 23; Def.'s Mem., Ex. 3 (Smith's November 2010 FSEA). She accepted the higher-paying position of Billeting Supervisor on June 20, 2011, which required her to transfer employment from DynCorp LLC to DIFZ and to sign a new FSEA.[5] SAC ¶ 23; SAC, Ex. 2 (emails documenting Smith's position change). Smith alleges that she did not begin receiving the increased pay rate until September 2011, two months into her new position. SAC ¶ 23; see Def.'s Mem., Ex. 4 (Smith's 2011 FSEA reflecting an effective date of August 26, 2011). Although Smith's FSEA with DIFZ expired in November 2011, she was rehired by DIFZ as a Transportation Coordinator in January 2012 and signed a new FSEA. SAC ¶ 24; Def.'s Mem., Ex. 5 (Smith's January 2012 FSEA).

Smith further alleges that in February 2012, "DynCorp made her apply for the position of Transportation Supervisor, " which would have increased her pay rate by three dollars per hour. SAC ¶ 24. Although the SAC does not state whether she actually received this promotion, Smith alleges that she "was assured she would be paid that amount, but was not, instead being informed that because she had not been employed long-term she could not receive the pay for performing that position." SAC ¶ 24. Smith further alleges that her Supervisor position was terminated in November 2012 in retaliation for her complaints regarding her pay rate. SAC ¶ 24.

In addition, Smith alleges that she was subjected to a racially hostile work environment and that defendant refused to sign her promotion papers for the Transportation Supervisor position, accusing her of obtaining her contract under false pretenses. SAC ¶ 26. At some point in 2012, Smith complained to "headquarters in Fort Worth, Texas, " regarding her pay issues but the company denied her claim. SAC ¶ 25. In April 2013, she decided to resign and return to the United States due to defendant's alleged refusal to pay her as a Supervisor, termination of her Supervisor position, and refusal to promote her. SAC ¶ 26. Upon her return, she complained to "headquarters in Virginia, " through counsel, regarding the unpaid wages, but her claims were denied. SAC ¶ 27. Smith now seeks $18, 458.76 in lost wages.[6] SAC ¶ 28.

Shack, a resident of Florida, had been working overseas, including in Iraq and Kuwait, for 12 years for KBR when he was recruited by DynCorp LLC to work in its Fort Worth, Texas, offices. SAC ¶ 29; Pls.' Opp'n, Ex. 3 ¶ 3 (Shack's Declaration). After working in Fort Worth for six months, Shack signed a one-year FSEA with DynCorp FZ in December 2009 to work as a Site Manager at Kandahar Airfield. SAC ¶ 30; Def.'s Mem., Ex. 6 (Shack's December 2009 FSEA). Shack alleges that in February 2010, he was "sent to Camp Leatherneck as the Regional Site Manager, " a more senior position, which he performed for five months without additional pay.[7] SAC ¶¶ 30-31. Following the five-month period, Shack was replaced as Regional Site Manager by a Caucasian employee. SAC ¶ 31. Thereafter, Shack was moved to various camps and at each new camp, he continued his position as Site Manager.[8] SAC ¶ 33; see Pls.' Opp'n, Ex. 3 (includes Shack's February 2011 FSEA with DynCorp LLC, which described his position as "Site Manager"). When Shack's employment ended in January 2012, he was replaced by a Caucasian employee. SAC ¶ 38.

The Second Amended Complaint alleges three different reasons for the non-renewal of Shack's employment contract at the end of 2011. First, the SAC alleges that "DynCorp refused to renew his contract after a series of false claims by Mike Thomas, " a deputy director "who made untrue statements about Frazier Shack for being on a leave for rest and recreation (R&R)." SAC ¶ 33. The SAC next alleges that Shack "was not approved for renewal of his [FSEA] for 2012 because he had been moved three times." SAC ¶ 35. Then, the SAC alleges that Shack "was retaliated against and terminated from employment as a result" of his complaints regarding the "whites-only, good old boy" work culture that he perceived, as well as about the improper pay that he and the other plaintiffs were receiving. SAC ¶¶ 35-37. Following his return to the United States, Shack lodged a complaint in May 2013 to "DynCorp headquarters in Virginia, " through counsel, regarding his unpaid wages, but his claim was not resolved in his favor. SAC ¶ 39. He now seeks $294, 677.70 in lost wages.[9] SAC ¶ 40.

Alford, a resident of Texas, began working in Afghanistan as a Travel Coordinator in August 2010 pursuant to a one-year FSEA with DynCorp FZ. SAC ¶ 41; Def.'s Mem., Ex. 8 (Alford's August 2010 FSEA). While in Afghanistan, Alford was allegedly asked by an unnamed individual to perform the duties of a Travel Supervisor and a "Flight Ops/Aviation Supervisor, " both higher paying positions, which she did for an unspecified length of time without receiving additional pay. SAC ¶ 41. Alford alleges that she applied for a Travel Supervisor position that became available in November 2010, but the position was given to a Caucasian woman. SAC ¶ 43. Alford further alleges that she applied for a Travel Supervisor position on several other occasions but was never granted an interview despite the fact that she had already performed the duties of the position. SAC ¶ 43. In addition to not receiving a promotion to Travel Supervisor, she alleges she was "forced to train Paul Rainey, a Caucasian, on how to perform the job." SAC ¶¶ 44, 50.

Alford alleges that in July 2011, she was "forced to relocate" to Camp Leatherneck to help establish a Travel Office. SAC ¶ 45. She further alleges that she should have been paid as a Travel Supervisor for this work and that she was subjected to unspecified "additional unfavorable treatment." SAC ¶ 45. Moreover, she alleges that "[s]imilarly situated Caucasian employees were not treated the same way as [she] was treated at Camp Leatherneck." SAC 1147. The sole example given is that Alford "was required to perform the job of Travel Supervisor and train others for the supervisory position and pay but was never paid for her services under the published schedule." SAC ¶ 47. Despite her dissatisfaction with how she was being paid, Alford nevertheless signed two more FSEAs. On July 27, 2011, she signed a modification to her August 2010 FSEA extending her employment period for one month but maintaining the same pay rate. Def.'s Mem., Ex. 9 (Alford's July 2011 modification). She then signed another one-year FSEA with DynCorp FZ for a Travel Coordinator position, effective September 2011. Def.'s Mem., Ex. 10 (Alford's September 2011 FSEA).

Alford further alleges she was acting as the Interim Flight Operations Supervisor and the Interim Travel Supervisor in November 2011 when Assistant Site Manager Douglas Lobdell allegedly asked whether she would like either position on a more permanent basis, to which she responded in the affirmative. SAC ¶ 48. Lobdell allegedly informed her that he would begin the process; however, the job was ultimately given to a newly-hired Caucasian woman with less experience. Id . Alford also alleges that the Site Manager verbally threatened her job and constantly stated that she was a problem but never stated why he thought so. Id.

Alford's final FSEA, which again described her position as "Travel Coordinator, " was to be in effect from October 2012 to October 2013. Def.'s Mem., Ex. 12 (Alford's October 2012 FSEA); however, her employment was terminated in January 2013 after she had returned to the United States earlier that month on medical leave. SAC ¶ 41. She alleges that she was fired "in retaliation and discrimination for her weight, sex and race."[10] SAC ¶ 51. In either March or May 2013, Alford complained, through counsel, to "DynCorp headquarters in Virginia" regarding her unpaid wages, but her claim was denied. SAC ¶¶ 46, 49. She now seeks $251, 704.00 in lost wages.[11] SAC ¶ 51.

Riley, a resident of Alabama, began working in Afghanistan in December 2009[12] as a Billeting Manager pursuant to a one-year FSEA with DynCorp FZ. SAC ¶ 52; Def.'s Mem., Ex. 13 (Riley's December 2009 FSEA). He had been working in Iraq for KBR when he was recruited to work for DIFZ. Pls.' Opp'n, Ex. 5 ¶¶ 3-4 (Riley's Declaration). He signed another one-year FSEA with DynCorp FZ, effective December 2010 to December 2011, in which he retained his Billeting Manager position at the same pay rate. Def.'s Mem., Ex. 14 (Riley's December 2010 FSEA). Riley alleges that he accepted a promotion to a Site Manager position for a Band 5 base on June 25, 2011, but did not receive the commensurate pay increase until August 2011.[13] SAC ¶¶ 52-53. On August 10, 2011, he was given a new FSEA, this time with DynCorp LLC, reflecting the promotion to Site Manager and the pay raise. SAC ¶ 52; Def.'s Mem., Ex. 15 (Riley's August 2011 FSEA).

On August 18, 2011, Riley was allegedly reassigned to be the Site Manager of a Band 4 base, "FOB Geronimo, " which entitled him to another pay increase. SAC ¶ 54. Riley alleges that he never received this increase. SAC ¶ 54. At FOB Geronimo, Riley found problems with the equipment and with functions not being performed in accordance with the LOGCAP IV contract. SAC ¶¶ 54-55. He brought these issues into compliance, causing some non-African-American employees to be disciplined for the noncompliance. SAC ¶ 55. These unnamed employees had friends in "higher management" and sought to retaliate against Riley by having him fired. SAC ¶ 55. Riley's employment was terminated "without warning" in October 2011. SAC ¶¶ 54, 58. Before his employment was terminated, Riley alleges that he had "repeatedly requested higher management" to correct his pay rate and provide him with back pay. SAC ¶ 56. He further alleges that he complained to "DynCorp headquarters in Virginia, " through counsel, in May 2013 regarding his improper pay, but his claim was denied. SAC ¶ 57. He now seeks $309, 699.23 in lost wages.[14] SAC ¶ 60.

The Second Amended Complaint consists of seven counts captioned as follows:

Count I: Breach of Contract, Express and Implied
Count II: Racial Discrimination and Retaliation in contracting ...

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