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HUNTER v. ARK RESTAURANTS CORP.

March 31, 1998

MAURICE HUNTER, Plaintiff,
v.
ARK RESTAURANTS CORPORATION, ARK UNION STATION CORPORATION, ARK D.C. KIOSK, INC., and DAVID CLARKE, Defendants.



The opinion of the court was delivered by: HARRIS

OPINION

 This matter is before the Court on defendants' motion for summary judgment and related pleadings. In this employment discrimination action, plaintiff alleges hostile work environment in violation of the District of Columbia Human Rights Act ("DCHRA"), D.C. Code §§ 1-2501, et seq. (Count I), unlawful retaliation in violation of the DCHRA (Count II), and hostile environment and unlawful retaliation in violation of 42 U.S.C. § 1981 (Count III). Defendants seek summary judgment on all counts and also move for dismissal of the suit as a sanction for plaintiff's alleged destruction of evidence. Upon consideration of the entire record, the Court grants summary judgment on Count I to defendants Ark Restaurant Corporation and David Clarke. The Court denies summary judgment on Count I as to defendants Ark D.C. Kiosk and Ark Union Station. The Court grants summary judgment to all defendants on Count II. Further, the Court grants summary judgment to defendants Ark Restaurant Corporation and David Clarke on Count III and to Ark D.C. Kiosk and Ark Union Station on the retaliation component of the § 1981 claim. The Court declines to grant summary judgment on the hostile environment component of the § 1981 claim as to defendants Ark D.C. Kiosk and Ark Union Station. The Court also declines to dismiss this action as a sanction against plaintiff. Although "findings of fact and conclusions of law are unnecessary on decisions of motions under Rule. . . 56," Fed. R. Civ. P. 52(a), the Court nonetheless sets forth its analysis.

 BACKGROUND

 Plaintiff, a black male, was employed as a waiter/server at a restaurant called "America," owned by defendant Ark Union Station ("Ark Union"). Plaintiff worked at America from March 5 to June 11, 1994, when he was transferred to a restaurant called "Center Cafe," owned by defendant Ark D.C. Kiosk ("Ark Kiosk"). Both Ark Union and Ark Kiosk are District of Columbia corporations and are wholly-owned subsidiaries of defendant Ark Restaurant Corporation ("Ark"). Plaintiff worked at Center Cafe from June 12 until September 18, 1994, when he quit and moved to Atlanta, Georgia. Plaintiff subsequently returned to Washington and again went to work for Center Cafe beginning on December 21, 1994, working for twenty days before quitting on January 11, 1995.

 In March 1994, prior to beginning his employment, plaintiff completed America's training program and passed a written test. Shortly after he began working as a waiter, plaintiff became dissatisfied with his work assignments at America. He contends that his non-black co-workers, of equal or less tenure and experience, were routinely scheduled to work the more profitable sections of the restaurant on the more lucrative night and weekend shifts, while he continued to work primarily the less profitable sections on Monday through Thursday. Plaintiff told the assistant general manager of America and Center Cafe, Hillary Wand, that he felt management discriminated against him on account of his race. He requested more profitable work assignments, but plaintiff contends that Wand did nothing to address his concerns. Plaintiff also discussed his concerns with the general manager at America, Nancy Graefing, and thereafter he was assigned a shift upstairs. Plaintiff contends that Wand reprimanded him upon hearing of his meeting with Graefing.

 In May 1994, plaintiff was still dissatisfied with his work assignments at America and asked Graefing for a transfer to Center Cafe. Plaintiff allegedly told Graefing that his co-workers were teasing him and that management was discriminating against him with respect to scheduling. Plaintiff contends that Graefing did not address his complaints and that Wand refused to transfer plaintiff. Finally, in June, plaintiff obtained permission to transfer to Center Cafe.

 At Center Cafe, plaintiff worked with defendant Clarke, a bartender who also served as an assistant manager from May 1994 until November 1994. Clarke worked approximately twenty hours a week as assistant manager. His duties included closing the restaurant and dealing with problems that occurred; however, he could not set policy or hire or fire employees. Plaintiff contends that while Clarke was acting as assistant manager, Clarke made several racist comments in his presence. Plaintiff reported these comments to Rick Blumberg, another supervisor, who acknowledged that the comments were inappropriate in the workplace and told Clarke to stop. Blumberg did not record the incident or report it to any other managers; however, Blumberg stated that he would schedule plaintiff and Clarke to work on different days.

 In September 1994, plaintiff quit his job at Center Cafe to return to school in Atlanta. He soon returned to Washington, however, and resumed his job with Center Cafe. Plaintiff was assigned less desirable shifts than he had had before he quit, and he attributed this to discriminatory treatment by the management. He arranged several meetings with his immediate supervisors to discuss the situation, and eventually scheduled two meetings with Paul Gordon, Ark's regional manager. Following his discussion with plaintiff, Gordon spoke with Clarke for the first time regarding plaintiff's complaints of discrimination. The next day, Gordon again met with plaintiff and told him that "there would be changes" at America and Center Cafe, but that plaintiff would "have to accept them" or "there is no need for you to stay here." On January 11, 1995, plaintiff resigned his employment with Center Cafe. Plaintiff thereafter filed the instant action.

 STANDARD OF REVIEW

 Summary judgment may only be granted if the pleadings and evidence "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In considering a summary judgment motion, all evidence and the inferences to be drawn from it must be considered in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). Mere allegations in the pleadings, however, are not sufficient to defeat a summary judgment motion; if the moving party shows that there is an absence of evidence to support the nonmoving party's case, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 327, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 ANALYSIS

 I. Hostile Environment Claims

 Plaintiff alleges that defendants' actions created a hostile environment violating both the DCHRA and 42 U.S.C. § 1981. This Circuit has recognized that the same standards apply in evaluating a hostile environment claim under both Title VII and § 1981. Hodges v. Washington Tennis Serv. Int'l. Inc., 870 F. Supp. 386, 387 n.1 (D.D.C. 1994) (citing Carter v. Duncan-Huggins, Ltd., 234 U.S. App. D.C. 126, 727 F.2d 1225, 1236 (D.C. Cir. 1984)). Moreover, the District of Columbia Court of Appeals usually looks to Title VII as a source for interpreting the DCHRA. Id. (citing American Univ. v. District of Columbia Comm'n on Human Rights, 598 A.2d 416, 422 (D.C. 1991)). The Court, therefore, evaluates plaintiff's hostile environment claims under the DCHRA and § 1981 together.

 A. Liability of Ark Kiosk and Ark Union

 Defendants Ark Kiosk and Ark Union first argue that they are entitled to summary judgment on plaintiff's hostile environment claims because they took prompt remedial action in response to plaintiff's complaints of racial discrimination. In this Circuit, "an employer may not be held liable for a supervisor's hostile work environment harassment if the employer is able to establish that it had adopted policies and implemented measures such that the victimized employee either knew or should have known that the employer did not tolerate such conduct and that she could report it to the employer without fear of adverse consequences." Gary v. Long, 313 U.S. App. D.C. 403, 59 F.3d 1391, 1398 (D.C. Cir. 1995), cert. denied, 516 U.S. 1011, 116 S. Ct. 569, 133 L. Ed. 2d 493 (1995). This remedial defense, however, depends on "the ability of the employer to establish that its employees could not reasonably have failed to know of those measures and that its grievance procedures were clearly 'calculated to encourage victims of harassment to come forward.'" Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 73, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986).

 Construing the facts in the light most favorable to plaintiff, the Court concludes that there is an issue of material fact regarding whether defendants took appropriate remedial action. Defendants contend that their company manual explicitly stated that racially discriminatory conduct was not tolerated in the workplace, and that management attempted to rectify plaintiff's working conditions after each complaint. The mere existence of a restaurant policy, however, does not eliminate potential "employer's chargeability." Defendants have failed to establish that their ad hoc responses to plaintiff's complaints were part of a system of measures "calculated to encourage victims of harassment to come forward." Id. at 73. Therefore, the Court rejects defendants' argument that the statements regarding racial discrimination in the company manual preclude plaintiff's claims of hostile environment. *fn1"

 Defendants further argue that even if they are not entitled to summary judgment on the hostile environment claim under the DCHRA, summary judgment should be granted on plaintiff's § 1981 hostile environment claim because plaintiff misrepresented his background in applying for the position and thus fraudulently entered into an employment contract. Defendants contend that plaintiff's misrepresentations resulted in a void contract, which neither party could enforce, and thus defendants were free to terminate the employment relationship without any potential § 1981 liability. See Fair Employment Council of Greater Wash., Inc., v. BMC Marketing Corp., 307 U.S. App. D.C. 401, 28 F.3d 1268, 1271 (D.C. Cir. 1994).

 The Court rejects defendants' argument. Even if the defendants could prove the elements of a voidable contract, they could not avoid potential § 1981 liability. *fn2" In McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 130 L. Ed. 2d 852, 115 S. Ct. 879 (1995), the Supreme Court ruled that an employee was not barred from relief under the Age Discrimination in Employment Act, even though, after her discharge, her employer discovered wrongdoing that would have been a legitimate ground for termination had the employer known of it. See id. at 357-59. After-acquired evidence does not bar recovery because "the employer could not have been motivated by knowledge it did not have and it cannot now claim that the employee was fired for the nondiscriminatory reason." Id. at 360. The Supreme Court's holding in McKennon applies to various statutes intended to eliminate workplace discrimination. As amended in 1991, a purpose of § 1981 is to deter and eliminate workplace discrimination. *fn3" It would frustrate the ...


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