terminating plaintiff for these disciplinary violations, but
instead gave plaintiff the option to enter into a "Last Chance
Agreement" which set forth terms and conditions of plaintiff's
On June 27, 1995, plaintiff signed the Last Chance Agreement in
the presence of his union representative, Rick Iacino, Robert
Simko, a Customer Service Supervisor, and James J. Hare, III, the
Director of Customer Service.*fn3 The Agreement provided that:
(1) plaintiff was demoted from Lead Aircraft Cleaner to Aircraft
Cleaner and was not eligible to bid for any Lead or Supervisor
positions;*fn4 (2) plaintiff would be subject to immediate
discharge for any violation of the Agreement; (3) "Mr. Kidane
recognizes that just cause exists for his discharge"; and (4)
plaintiff agreed not to file any grievance or lawsuit with
respect to the Agreement.
Several weeks later, while investigating suspicious time card
entries by another employee, defendant discovered what appeared
to be alterations on several of plaintiff's time cards, the most
recent one occurring the day after plaintiff signed the Last
Chance Agreement. Though plaintiff denied the allegations he
altered his time cards, he was fired on July 21, 1995.*fn5
Plaintiff filed a complaint with the Equal Employment
Opportunity Commission ("EEOC") on December 1, 1994, alleging
race and national origin discrimination by defendant between
March 21, 1994 and December 1, 1994. After receiving a
right-to-sue letter, plaintiff filed Civil Action No. 95-2265,
alleging discrimination, harassment, and retaliation in violation
of both Title VII, 42 U.S.C. § 2000e et seq., and
42 U.S.C. § 1981. On March 10, 1997, apparently in an effort to remedy
deficiencies in his first complaint, plaintiff filed Civil Action
No. 97-477, alleging discrimination, harassment, and retaliation
in violation of 42 U.S.C. § 1981 only.
STANDARD OF REVIEW
A motion to dismiss may not be granted "unless plaintiff can
prove no set of facts in support of [his] claim which would
entitle [him] to relief." Kowal v. MCI Communications Corp.,
16 F.3d 1271, 1276 (D.C.Cir. 1994); Conley v. Gibson, 355 U.S. 41,
45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). All factual doubts must
be resolved and all inferences drawn in favor of the plaintiff.
Tele-Communications of Key West, Inc. v. United States,
757 F.2d 1330, 1334-35 (D.C.Cir. 1985).
In the event matters outside the pleadings are presented to and
not excluded by a court, and the court assures itself that such
treatment would be fair to both parties, a motion to dismiss may
be treated as one for summary judgment and disposed of as
provided in Federal Rule of Civil Procedure 56. Fed.R.Civ.P.
12(b); Americable Int'l Inc. v. Department of the Navy,
129 F.3d 1271, 1274 n. 5 (D.C.Cir. 1997); Tele-Communications, 757
F.2d at 1334. Summary judgment may be granted only 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, 106
S.Ct. 1348, 89 L.Ed.2d 538 (1986). Mere allegations of 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, 106 S.Ct. 2548, 91 L.Ed.2d 265
I. Plaintiff's Motion To Strike
As an initial matter, plaintiff moves to strike an attachment
to the affidavit of James J. Hare, III, defendant's Director of
Customer Service. The attachment is the summary of an interview
between Hare and Lucretia Moultrie, the payroll clerk who claimed
she altered time cards for plaintiff. Plaintiff argues that the
attachment should be stricken because it violates Federal Rule of
Civil Procedure 56(e), as it was not conducted under oath and
there is no statement that the declarant is competent or that the
allegations are based upon personal knowledge. The Court
Rule 56(e) provides that "sworn or certified copies of all
papers or parts thereof referred to in an affidavit shall be
attached thereto or served therewith." The Moultrie interview is
referred to extensively in the Hare affidavit, and the attached
copy of the interview is certified by Moultrie as an accurate
reflection of the conversation she had with Hare. The attachment
thus fully complies with Rule 56(e).*fn6
II. Plaintiff's Title VII Claims
In Civil Action No. 95-2265, plaintiff alleges that
disciplinary action and other treatment by defendant's
supervisory employees, culminating in plaintiff's termination,
constituted discrimination and retaliation in violation of Title
VII. Defendant argues that plaintiff's claims of discriminatory
demotion and discharge and retaliation are barred for failure to
exhaust administrative remedies. The Court agrees.
In order to bring a cause of action in federal court under
Title VII, a plaintiff must first exhaust his administrative
remedies. See 42 U.S.C. § 2000e-5; Park v. Howard Univ.,
71 F.3d 904, 907 (D.C.Cir. 1995). A Title VII lawsuit following an
EEOC complaint is limited to claims that are "like or reasonably
related to the allegations of the [EEOC] charge and growing out
of such allegations." Park, 71 F.3d at 907 (quoting Cheek v.
Western and Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir.
1994)). This limitation is important because it affords the
agency and the employer an opportunity to attempt conciliation
without resort to the courts. Rush v. McDonald's Corp.,
966 F.2d 1104, 1110 (7th Cir. 1992). Although the requirement of
specificity in the administrative charge should not be construed
to place a heavy technical burden on individuals, "[a] court
cannot allow liberal interpretation of an administrative charge
to permit a litigant to bypass the Title VII administrative
process." Park, 71 F.3d at 907.
In this case, therefore, plaintiff's Title VII retaliation
claim is barred for failure to exhaust administrative remedies.
In his EEOC complaint, filed December 1, 1994, plaintiff alleged
only discrimination based on race and national origin. There is
no evidence on the record indicating that plaintiff ever amended
his EEOC complaint to include a retaliation charge, even after
being demoted in June 1995 and fired in July 1995. See Hare
Aff. ¶¶ 37-38 & Ex. 2. Thus, defendant's motion for summary
judgment is granted with respect to plaintiff's Title VII
In addition, plaintiff's EEOC complaint contains no reference
to a charge of discriminatory demotion or discharge sufficient to
exhaust administrative remedies. Even had the EEOC complaint been
filed after plaintiff was demoted and/or fired (in fact, the
complaint was filed six months before plaintiff was demoted), the
complaint does not contain sufficient detail to encompass a
discriminatory demotion or discharge claim. The first paragraph
of plaintiff's three-paragraph complaint states: "In 1991, I was
promoted to the position of Lead Cleaner. Since March 21, 1994, I
have been subjected to the harassment of my immediate supervisor
and other white employees." See Hare Aff. Ex. 2. Although this
statement is sufficient to notify the EEOC of a claim of hostile
work environment, assuredly it cannot be read to encompass a
discriminatory demotion or discharge claim. Cf. Park, 71 F.3d
at 908 (claim that plaintiff was denied advancement due to
national origin does not encompass hostile work environment
claim). "The goals behind the requirement of prior resort to
administrative relief would be frustrated if the filing of a
general charge with the EEOC would open up the possibility of
judicial challenges to any related conduct that took place in
connection with the employment relationship." Id. (quoting
Rush, 966 F.2d at 1110) (internal brackets omitted). Thus,
defendant is entitled to summary judgment on plaintiff's Title
VII discriminatory demotion and discharge claim.
The only claim which satisfies Title VII's requirement of
exhaustion of administrative remedies is plaintiff's racially
hostile work environment claim. However, defendant is entitled to
summary judgment on this claim as well. In order to establish a
prima facie case of hostile work environment under Title VII,
plaintiff must proffer evidence that "the workplace is permeated
with discriminatory intimidation, ridicule, and insult that is
sufficiently severe or pervasive to alter the conditions of the
victim's employment and create an abusive working environment."
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367,
126 L.Ed.2d 295 (1993) (internal citation and quotation marks
omitted). "[C]asual or isolated manifestations of a
discriminatory environment, such as a few ethnic or racial slurs,
may not raise a cause of action" under Title VII. Bundy v.
Jackson, 641 F.2d 934, 943 n. 9 (D.C.Cir. 1981).
Plaintiff simply has not proffered sufficient evidence to
establish a hostile work environment claim under Title VII. The
basis of his complaint appears to be remarks allegedly made by a
white crew chief, identified only as "Casper." Plaintiff offers
evidence that "Casper" told him to "go back to [his] African
country," made references to camels, and called him "Abdulla" and
other names. See Kidane Decl. ¶ 4; Warner Decl. ¶ 2. Though
remarks such as these, if true, doubtless are discriminatory and
inappropriate, such isolated remarks are not sufficient to state
a claim of hostile work environment under Title VII.*fn7 See
Bundy, 641 F.2d at 943 n. 9.
III. Plaintiff's § 1981 Claims in Civil Actions No. 95-2265
Plaintiff makes identical allegations of racial and national
origin discrimination (hostile work environment and
discriminatory discharge) and retaliation in violation of
42 U.S.C. § 1981 in both of his cases. As an initial matter, to the
extent that plaintiff claims he was discriminated against based
on the fact that he is from Ethiopia, that claim is not
cognizable under § 1981. See St. Francis College v.
Al-Khazraji, 481 U.S. 604, 613, 107 S.Ct. 2022, 95 L.Ed.2d 582
(1987). Though the
racial discrimination prohibited by § 1981 includes intentional
discrimination based on "ancestry or ethnic characteristics," a
plaintiff cannot base proof of discrimination under § 1981 solely
on the place or nation of his origin. See id.; Hyman v. First
Union Corp., 980 F. Supp. 46, 52 (D.D.C. 1997).
With respect to plaintiff's claims of racial discrimination and
retaliation in violation of § 1981, the Court notes that the same
standards apply in evaluating claims of discrimination and
retaliation under Title VII and § 1981. See, e.g., Hamilton v.
Rodgers, 791 F.2d 439, 442 (5th Cir. 1986); Carter v.
Duncan-Huggins, Ltd., 727 F.2d 1225, 1236 (D.C.Cir. 1984);
Carney v. American Univ., 960 F. Supp. 436, 447-48 (D.D.C.
1997), aff'd in part, rev'd in part on other grounds,
151 F.3d 1090 (D.C.Cir. 1998); Hodges v. Washington Tennis Serv. Int'l,
Inc., 870 F. Supp. 386, 387 n. 1 (D.D.C. 1994). It follows that
plaintiff's claim of hostile work environment under § 1981 fails
for the same reasons as plaintiff's Title VII hostile environment
Plaintiff's remaining viable claims under § 1981, therefore,
are racially discriminatory demotion/discharge and retaliation.
In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct.
1817, 36 L.Ed.2d 668 (1973), the Supreme Court set forth the
basic allocation of burdens and order of presentation of proof in
cases alleging discriminatory treatment and retaliation. See
also Thomas v. NFL Players Ass'n, 131 F.3d 198, 202 (D.C.Cir.
1997); Batson v. Powell, 912 F. Supp. 565 (D.D.C. 1996). First,
the plaintiff has the burden of proving a prima facie case of
discrimination or retaliation. McDonnell Douglas, 411 U.S. at
802, 93 S.Ct. 1817; Thomas, 131 F.3d at 202. The burden then
shifts to the defendant to rebut the presumption of
discrimination by proffering a legitimate, non-discriminatory
reason for the adverse employment action. McDonnell Douglas,
411 U.S. at 802, 93 S.Ct. 1817. If a defendant does so, the
plaintiff must show, by a preponderance of the evidence, that the
defendant's asserted legitimate reason is a pretext for
discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,
506-508, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); McDonnell
Douglas, 411 U.S. at 804, 93 S.Ct. 1817.
In order to establish a prima facie case of discriminatory
discharge or demotion, a plaintiff must proffer evidence that he
belonged to a protected class, that he performed at or near the
level legitimately expected by his employer, and that he was
replaced by a person outside the protected class, or,
alternatively, that the position remained open. Park v.
Washington Metro. Area Transit Auth., 892 F. Supp. 5, 10 (D.D.C.
1995), aff'd, 107 F.3d 924 (D.C.Cir. 1996); see also Neuren v.
Adduci, Mastriani, Meeks & Schill, 43 F.3d 1507, 1512 (D.C.Cir.
1995). Plaintiff has failed to establish a prima facie case of
either discriminatory discharge or discriminatory demotion
because he was replaced on both occasions by members of his own
race. When plaintiff was demoted from Lead Aircraft Cleaner to
Aircraft Cleaner, he was replaced by a black woman, Carol Slater.
Hare Aff. ¶ 29. When plaintiff was fired from his Aircraft
Cleaner position, he was replaced by a black man from Ethiopia,
Desta Getachew.*fn8 Id. at ¶ 31.
Moreover, plaintiff has not proffered evidence that he
performed his duties at or near the level expected by defendant.
Defendant lists several incidents requiring discipline which
suggest that plaintiff was not properly performing his job. See
id. at ¶¶ 7-14. Plaintiff's only "contradictory" evidence is
statements by himself and two of his co-workers that he was a
"good worker," and his claim that one of the incidents cited by
defendant as a reason for discipline did not happen. See Kidane
Decl. ¶¶ 3 & 11; Cooper Decl. ¶ 3; Warner Decl. ¶ 2; see also
Mitchell v. Toledo Hosp., 964 F.2d 577, 584-85 (6th Cir. 1992)
(stating that affidavits containing "rumors, conclusory
allegations and subjective beliefs" are insufficient to establish
a claim of discrimination as a matter of law). He does not
dispute the other incidents cited by defendant as proof that he
was not performing at or near the level expected by defendant.
Thus, defendant's motion for summary judgment on plaintiff's
discriminatory demotion and discharge claims under § 1981 is
Plaintiff has, however, alleged sufficient facts to establish a
prima facie case of retaliation. See Thomas, 131 F.3d at 202.
Defendant counters this prima facie case with evidence that it
had many legitimate, nondiscriminatory reasons for demoting and
ultimately firing plaintiff. See Hare Aff. ¶¶ 7-14. To avoid
summary judgment, therefore, plaintiff must produce some
objective evidence showing that defendant's proffered reasons are
mere pretext. Ridley v. District of Columbia, 945 F. Supp. 333,
342 (D.D.C. 1996); Batson, 912 F. Supp. at 578. Plaintiff has
failed to meet his burden in this case. As previously discussed,
plaintiff does not dispute most of the incidents giving rise to
disciplinary action against him; he merely submits affidavits
from two of his co-workers stating that he was a "good worker."
See supra & n. 2. He has failed to proffer evidence suggesting
that his firing constituted disparate treatment, because there is
no evidence that employees who falsified their time cards but
were not fired were "similarly situated" to plaintiff. See
supra n. 8. Thus, defendant's motions for summary judgment on
plaintiff's § 1981 claims in Civil Actions No. 95-2265 and No.
97-477 are granted.*fn9
For the aforementioned reasons, summary judgment is granted to
defendant on all of plaintiff's claims in Civil Actions No.
95-2265 and 97-477. In accordance with Federal Rule of Civil
Procedure 58, appropriate Judgments for each case accompany this
For the reasons stated in the accompanying Opinion, it hereby
ORDERED, that plaintiff's motion to strike is denied. It hereby
ORDERED, that defendant's motion for summary judgment is
For the reasons stated in the accompanying Opinion, it hereby
ORDERED, that defendant's motion to dismiss or, in the
alternative, for summary judgment is granted. The Court grants
summary judgment on all counts of plaintiff's complaint.