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
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.
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 ...