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March 17, 1999


The opinion of the court was delivered by: Stanley S. Harris, District Judge.


NOTE: These Civil Actions Are Not Consolidated But Are Dealt With Here In A Single Opinion.

Before the Court in Civil Action No. 95-2265 are defendant's motion for summary judgment, plaintiff's "Omnibus Opposition" thereto, and defendant's reply; and plaintiff's motion to strike the record of an interview between plaintiff's former supervisor, James J. Hare, III, and a former payroll clerk, Lucretia Moultrie, which is attached as an exhibit to Hare's affidavit, and defendant's opposition thereto. Before the Court in Civil Action No. 97-477 are defendant's motion to dismiss or, in the alternative, for summary judgment, plaintiff's opposition thereto, and defendant's reply.*fn1 Upon careful consideration of the pleadings and the entire record, the Court grants defendant's motions and denies plaintiff's motion to strike in Civil Action No. 95-2265. "Findings of fact and conclusions of law are unnecessary on decisions of motions under Rule 12 or 56. . . ." Fed.R.Civ.P. 52(a); Summers v. Department of Justice, 140 F.3d 1077, 1079-80 (D.C.Cir. 1998). Nonetheless, the Court sets forth its reasoning.


Plaintiff, a black male from Ethiopia, worked for defendant Northwest Airlines from April 22, 1985, until July 22, 1995, both as an Aircraft Cleaner and a Lead Aircraft Cleaner. Between November 1994 and May 1995, plaintiff was disciplined on numerous occasions for incidents such as trading shifts with other employees, seeking overtime pay in violation of company policy, and the failure of his crew to clean aircraft on time.*fn2 Defendant considered 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 continued employment.

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.


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 (1986).


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 ...

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