hiring him for a part-time teaching position. Count II sets
forth allegations of similar violations of the District of
Columbia Human Rights Act, D.C.Code § 1-2501 et seq. ("the
DCHRA"). In Count III, the plaintiff claims he has suffered
intentional infliction of emotional distress as a result of the
On May 18, 2001, Howard filed a motion for summary judgment on
all three counts, arguing that Mr. Ben-Kotel has failed to make
prima-facie cases of national-origin discrimination under Title
VII and the DCHRA, and of intentional infliction of emotional
In August 1999, the Department of Modern Languages and
Literatures ("the Department") at Howard needed to hire teachers
to teach some Spanish classes left unassigned because of
last-minute resignations of several faculty members. See Mot.
for Summ. J. at 4. Dr. Alphonse Frost, the Interim Chairman of
the Department at the time, asked Professor Amelia Mondragon,
the Coordinator of the Spanish section, to find part-time
teachers to teach the unassigned classes. See id. at 2-4;
Frost Dep. at 48. Professor Mondragon, in turn, asked Professor
Aleida Rodriguez to contact the Department of Spanish and
Portuguese at the University of Maryland ("UMD") in search of
part-time teachers. See id. at 5; Pl.'s Opp'n to Mot. for
Summ. J. ("Pl.'s Opp'n") at 2; Mondragon Dep. at 42. Professor
Rodriguez called UMD and requested that notes be placed in
Teaching Assistants' mailboxes announcing the vacant positions
at Howard. See Mot. for Summ. J. at 5. These notes referred
interested parties to Professor Rodriguez. See id.
A student at UMD's doctoral program in Spanish, Mr. Ben-Kotel
called Professor Rodriguez in response to her inquiry. See
Ben-Kotel Dep. at 48. During the telephone conversation, held
entirely in Spanish, Professor Rodriguez told Mr. Ben-Kotel to
call Professor Mondragon. See id. at 50. In his conversation
with Professor Mondragon, also held entirely in Spanish,
Professor Mondragon told Mr. Ben-Kotel to send in his resume and
to call Dr. Frost. See Mot. for Summ. J. at 5-6; Ben-Kotel
Dep. at 52, 54. Mr. Ben-Kotel called Dr. Frost, and during this
conversation, held entirely in English, Dr. Frost stated that he
needed to interview him. See Mot. for Summ. J. at 6; Ben-Kotel
Dep. at 58-59.
Shortly thereafter, Mr. Ben-Kotel had his interview with Dr.
Frost. See Mot. for Summ. J. at 6; Ben-Kotel Dep. at 59.
During this meeting, also held entirely in English, Dr. Frost
gave Mr. Ben-Kotel an application form and told him to submit
three references. See Mot. for Summ. J. at 6; Frost Dep. at
49-50; Ben-Kotel Dep. at 70. Accompanied by his wife, Mr.
Ben-Kotel personally delivered the completed application to Dr.
Frost and discussed, among other things, the classes he would be
teaching. See Mot. for Summ. J. at 7; Frost Dep. at 62;
Ben-Kotel Dep. at 75. Dr. Frost wanted Mr. Ben-Kotel to teach
Intensive Spanish One and Two. See id. Finally, Dr. Frost told
Mr. Ben-Kotel to call Paul Logan, the Associate Dean for the
Humanities in the College of Arts and Sciences at Howard. See
id. at 2, 7; Logan Dep. at 10.
After this second meeting, Mr. Ben-Kotel called Professor
Mondragon and told her that his interview with Dr. Frost went
well and that Dean Logan would interview him next. See Mot.
for Summ. J. at 8; Mondragon Dep. at 61. In response, Professor
Mondragon indicated that the interview with Dean Logan would
probably be a formality, discussed the textbook used in the
Intensive Spanish class, and invited
Mr. Ben-Kotel to a faculty meeting. See Ben-Kotel Dep. at 84;
Mondragon Dep. at 61.
Soon thereafter, Dean Logan interviewed Mr. Ben-Kotel over the
telephone. See Mot. for Summ. J. at 8; Pl.'s Opp'n at 4; Logan
Dep. at 60; Ben-Kotel Dep. at 90. This interview was held
entirely in English. See Mot. for Summ. J. at 8; Ben-Kotel
Dep. at 90. After the interview, Dean Logan expressed concerns
about Mr. Ben-Kotel to Dr. Frost. See Mot. for Summ. J. at 11.
Specifically, Dean Logan complained that he had difficulty
understanding Mr. Ben-Kotel's responses to questions. See id;
Logan Dep. at 62-66; Frost Dep. at 76. Dr. Frost agreed. See
Mot for Summ. J. at 11. Dean Logan was concerned that students
would not understand Mr. Ben-Kotel when he would have to explain
Spanish grammar in English and, therefore, told Dr. Frost that
he should not go forward with Mr. Ben-Kotel's application. See
Dr. Frost called Mr. Ben-Kotel and explained that his
application would not move forward because of concerns about his
ability to explain Spanish grammar in English. See id. at 12;
Frost Dep. at 76-77. According to Mr. Ben-Kotel, however, Dr.
Frost told him that his application would not proceed because of
his accent. See Pl.'s Opp'n at 5.
Howard states that at this time, it stopped seeking candidates
for the part-time position, and that existing faculty juggled
their schedules and taught the previously unassigned classes.
See Mot. for Summ. J. at 12; Frost Dep. at 84-85.
Believing that he was discriminated against on the basis of
his national origin, Mr. Ben-Kotel wrote to Howard seeking
reconsideration and clarification of why it had rejected his
application. See Pl.'s Opp'n at 6. In response, Dr. Clarence
Lee, the Dean of the College of Arts and Sciences at Howard,
advised Mr. Ben-Kotel that his letter had been forwarded to
Howard's General Counsel. See id.
Receiving no further response from Howard, Mr. Ben-Kotel filed
a Complaint with the Equal Employment Opportunity Commission
("EEOC") and the D.C. Human Rights Commission. See id. at 6-7.
The EEOC determined that there was reasonable cause for a
discrimination claim under Title VII.*fn1 See EEOC
Determination dated February 15, 2000. On June 8, 2000, the EEOC
issued a letter giving Mr. Ben-Kotel the right to sue. See
Compl. at 6; Pl.'s Opp'n at 7. Mr. Ben-Kotel filed this case on
August 15, 2000.
A. Legal Standard
Summary judgment is appropriate when the pleadings and
evidence demonstrate that there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a
matter of law. See FED. R. Civ. P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C.Cir. 1995).
To determine what facts are "material," a court must look to the
substantive law on which each claim rests. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986). A "genuine issue" is one whose resolution
could establish an element of a claim or defense and, therefore,
affect the outcome of the action. See Celotex, 477 U.S. at
322, 106 S.Ct. 2548;
Anderson, 477 U.S. at 248, 106 S.Ct. 2505.
In ruling on a motion for summary judgment, the court must
draw all justifiable inferences in the nonmoving party's favor
and accept the nonmoving party's evidence as true. See
Anderson, 477 U.S. at 255, 106 S.Ct. 2505. All evidence and the
inferences drawn must be considered in the light most favorable
to the nonmoving party. A nonmoving party, however, must
establish more than "the mere existence of a scintilla of
evidence" in support of its position. See Anderson, 477 U.S.
at 252, 106 S.Ct. 2505. To prevail on a motion for summary
judgment, the moving party must show that the nonmoving party
"fail[ed] to make a showing sufficient to establish the
existence of an element essential to that party's case, and in
which that party will bear the ultimate burden of proof at
trial." See Celotex, 477 U.S. at 325, 106 S.Ct. 2548. By
pointing to the absence of evidence proffered by the nonmoving
party, a moving party may succeed on summary judgment. See id.
In addition, the nonmoving party may not rely solely on
allegations or conclusory statements. See Greene v. Dalton,
164 F.3d 671, 674 (D.C.Cir. 1999). Rather, the nonmoving party
"must come forward with specific facts" that would enable a
reasonable jury to find in its favor. See id. If the evidence
"is merely colorable, or is not significantly probative, summary
judgment may be granted." Anderson, 477 U.S. at 249-50, 106
S.Ct. 2505 (citations omitted). Finally, the D.C. Circuit has
directed that because it is difficult for a plaintiff to
establish proof of discrimination, the court should view
summary-judgment motions in such cases with special caution.
See Aka v. Washington Hosp. Ctr., 116 F.3d 876, 879 (D.C.Cir.
1997); see also Johnson v. Digital Equip. Corp., 836 F. Supp. 14,
18 (D.C. 1993).
B. Discrimination Claims under Title VII and the DCHRA
(Counts I and II)
Counts I and II allege employment discrimination under Title
VII and the DCHRA, respectively. See Compl. at 6-8. Title VII
prohibits an employer from refusing to hire any individual, or
otherwise to discriminate against any individual, because of the
individual's race, color, sex, or national origin. See
42 U.S.C. § 2000e-2(a)(1). The DCHRA proscribes the same conduct.
See D.C.Code § 1-2512(a)(4)(B).*fn2
1. The McDonnell Douglas Framework
To prevail on a claim of discrimination under Title VII, the
Supreme Court has held that a plaintiff must follow a three-part
burden-shifting analysis. See McDonnell Douglas v. Green,
411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The Court
explained this scheme as follows:
First, the plaintiff has the burden of proving by the
preponderance of the evidence a prima facie case of
discrimination. Second, if the plaintiff succeeds in
proving the prima facie case, the burden shifts to
the defendant "to articulate some legitimate,
nondiscriminatory reason for the employee's
rejection." Third, should the defendant carry this
burden, the plaintiff must then have an opportunity
to prove by a preponderance of the evidence that the
legitimate reasons offered by the defendant were not
its true reasons, but were a pretext for
discrimination. . . . The ultimate
burden of persuading the trier of fact that the
defendant intentionally discriminated against the
plaintiff remains at all times with the plaintiff.
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248,
252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (quoting
McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817 (citations
Thus, the plaintiff must first establish a prima-facie case of
discrimination. See McDonnell Douglas, 411 U.S. at 802, 93
S.Ct. 1817; Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1288
(D.C.Cir. 1998) (en banc). As a general matter, a prima-facie
case of discrimination consists of the following elements: (1)
the plaintiff is a member of a protected class; (2) the
plaintiff applied for and was qualified for the position at
issue; (3) the plaintiff was rejected despite his
qualifications; and (4) after the plaintiffs rejection, the
position remained open and the employer continued to seek
applicants. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct.
1817; Bundy v. Jackson, 641 F.2d 934, 951 (D.C.Cir. 1981).
If the plaintiff succeeds in making a prima-facie case, the
burden shifts to the employer to articulate a non-discriminatory
reason for its action. The employer's burden, however, is merely
one of production. See Burdine, 450 U.S. at 254-55, 101 S.Ct.
1089 (1981). The employer "need not persuade the court that it
was actually motivated by the proffered reasons. It is
sufficient if the defendant's evidence raises a genuine issue of
fact as to whether it discriminated against the plaintiff."
Id. If the employer is successful, the burden shifts back to
the plaintiff to show that the defendant's proffered reasons are
pretextual and that discrimination was the real reason for the
action. See McDonnell Douglas, 411 U.S. at 802-805, 93 S.Ct.
1817; St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 508, 113
S.Ct. 2742, 125 L.Ed.2d 407 (1993).
In moving for summary judgment on the discrimination claims,
the defendant makes two arguments. First, the defendant asserts
that the plaintiff has failed to establish a prima-facie case of
national origin discrimination under Title VII and the DCHRA.
See Mot. for Summ. J. at 1. Second, the defendant maintains
that the plaintiff has not met his burden of showing that the
defendant's articulated legitimate, non-discriminatory reason
for not hiring him was pretextual. See id. The court addresses
each argument in turn.
2. The Plaintiffs Prima-Facie Case
The defendant argues that the plaintiff has failed to
establish a prima-facie case of national origin discrimination
because after the plaintiff was denied employment, the part-time
position did not remain open and the defendant did not seek
additional applicants. See Mot. for Summ. J. at 1718. Instead,
after denying the plaintiff employment, the defendant arranged
for existing faculty members to teach the unassigned classes.
See id; Logan Dep. at 82, 86; Frost Dep. at 84-85.
The plaintiff counters by claiming that the defendant
continued to seek applicants and hired an African-American, Ms.
Kadidia Thiere. See Pl.'s Opp'n at 13. In so doing, the
plaintiff relies on Dean Logan's and Dr. Frost's depositions.
See id. When Dean Logan was asked about employment interviews
he had conducted in the last five years, he mentioned Ms.
Thiere. See Logan Dep. at 28-29. Dean Logan stated that he
thought that his interview with Ms. Thiere took place in 1999.
See id. at 29. Based on this statement, the plaintiff claims
that Ms. Thiere was hired for the part-time position for which
he had applied. See Pl.'s Opp'n at 13-14.
The defendant replies, however, that even though Dean Logan
thought that Ms. Thiere was interviewed (and subsequently
hired) in late 1999, Ms. Thiere was in fact hired on August 16,
1998. See Repiy at 7-8. In support, the defendant provides the
(1) Dr. Frost's affidavit stating that "Ms. Thiero
[sic] was hired effective August 16, 1998." Frost
Aff. at 1-2.
(2) Ms. Thiere's "Personnel Recommendation Form,"
signed by Dr. Frost (with August 16, 1998 as the
"effective date"); see Ex. 1 to Dr. Frost's
(3) Howard's Director of Employment, Mr. Marion
McClain's affidavit, stating that "Howard University
hired Kadidia Thiero [sic] effective August 16,
1998." McClain Aff. at 2.
(4) Howard's Director of Payroll, Mr. Philip Martin's
affidavit, stating that payroll records indicate that
"Ms. Theiro [sic] was hired effective August 16,
1998." Martin Aff. at 1-2.
(5) Payroll printout titled "Employee Information"
(with "Hire Date" as August 16, 1998).
In light of this evidentiary support and the lack of any
persuasive evidence to the contrary, the court agrees with the
defendant that Dean Logan was simply mistaken when he said he
thought that he interviewed Ms. Thiere in 1999. The court
concludes that Ms. Thiere was hired on August 16, 1998, and,
therefore, the defendant did not hire her for the part-time
position that the plaintiff applied for in August 1999.
In addition to Dean Logan's deposition, the plaintiff also
relies on Dr. Frost's statements to try to show that Ms. Thiere
was hired for the part-time position. See Pl.'s Opp'n at 13
(citing Frost Dep. at 28-32, 43). In this portion of his
deposition, however, Dr. Frost was not referring to Ms. Thiere,
but rather to Ms. Maria Elvira Luna ("Ms.Luna"), another
part-time teacher at Howard. See Frost Dep. at 28 ("Who was
the coordinator at the time Ms. Luna was hired?"), at 29 ("Do
you know why Ms. Luna came in?"), at 30 ("Did you contact the
faculty, Dr. Frost, with regard to Ms. Luna?"). The plaintiff,
apparently, is simply mistaken. In any event, Ms. Luna was also
hired in 1998. See Reply at 6; Luna Dep. at 6-8. She too,
then, was not hired for the part-time position that the
plaintiff applied for in August 1999.
In sum, Ms. Thiere and Ms. Luna were both hired before August
1999. Accordingly, the plaintiff raises no genuine issue of
material fact. The plaintiff has failed to demonstrate that the
defendant continued to seek applicants for the part-time
position. Because the plaintiff has failed to provide the
requisite showing with respect to his prima-facie case, the
court need not address the defendant's remaining arguments.
Accordingly, the court grants the defendant's motion for summary
judgment on Counts I and II.
C. Intentional Infliction of Emotional Distress (Count III)
A claim for intentional infliction of emotional distress
requires the plaintiff "to show (1) extreme and outrageous
conduct [by the defendant] which (2) intentionally or recklessly
(3) causes the plaintiff severe emotional distress." Howard
University v. Best, 484 A.2d 958, 985 (D.C. 1984) (quotations
and citations omitted). The "extreme and outrageous" requirement
is not an easy one to meet. See Drejza v. Vaccaro,
650 A.2d 1308, 1312 (D.C. 1994) (citations omitted). The defendant's
conduct has to be "so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency."
Jackson v. District of Columbia, 412 A.2d 948, 957 (D.C. 1980)
(citations omitted). Finally, in an employment context, the
proof required to support a claim for intentional infliction of
emotional stress is particularly demanding. See Kerrigan v.
Britches of Georgetowne, Inc., 705 A.2d 624, 628 (D.C. 1997).
The plaintiff argues that summary judgment is inappropriate
for the emotional-distress claim because there are material
disputed facts. See Pl.'s Opp'n. at 27. The defendant counters
by asserting that the alleged conduct complained of by the
plaintiff, "does not rise to the level required to establish a
prima-facie case." See Mot. for Summ. J. at 30. The court
agrees with the defendant.
The plaintiff essentially makes three arguments. First,
according to the plaintiff, the defendant's alleged
discrimination was not an isolated incident. See Pl.'s Opp'n
at 28. Second, the defendant has failed to provide "statistical
evidence that would be probative of [the] egregious conduct."
Id. Finally, the plaintiff argues that he will be able to
demonstrate that the defendant's egregious conduct "caused him
significant emotional distress." See id. at 28-29.
First, the plaintiff argues that the defendant has a history
of discriminating against Hispanics. See id. at 28. In
support, the plaintiff states that "[t]o the extent that [he]
can establish that" there is a "history of selecting-out
Hispanic applicants and employees for discriminatory treatment,
he would have gone a long way in making the required showing of
outrageous or extreme conduct." See id. This argument,
however, does not refer to any specific conduct in this case
that would qualify as extreme and outrageous. For example, while
"the sort of irrational accent-based discrimination that the
[p]laintiff encountered," see id. at 29, could support a Title
VII claim, it could not by itself support an intentional
infliction of emotional distress claim. See Kerrigan, 705 A.2d
at 628 (targeting an employee for sexual harassment,
manufacturing false evidence, leaking information to other
employees, and unjustifiably demoting the employee does not rise
to the required level of outrageous conduct); King v. Kidd,
640 A.2d 656, 670-74 (D.C. 1993) (supervisor's repeated failure
to respond to employee's sexual harassment claim does not rise
to the required level of extreme and outrageous conduct);
Hoffman v. Hill & Knowlton Inc., 777 F. Supp. 1003, 1005 (D.C.
1991) (interference with employee's ability to work, stating
false, pretextual reasons for dismissing employee knowing that
it would be communicated to others, and ultimately dismissing
employee does not rise to the required level of extreme and
Second, the plaintiff alleges that the defendant has refused
to provide "statistical evidence that would be probative of
[the] egregious conduct." This discovery-dispute argument,
however, is not appropriate in an opposition to summary
judgment. See Initial Scheduling And Procedures Order dated
October 26, 2000 at 2-3(RMU) ("If . . . counsel are unable to
resolve [discovery disputes], counsel shall contact chambers
[to] arrange a telephone conference with the court."); see also
Chung Wing Ping v. Kennedy, 294 F.2d 735, 737 (D.C.Cir. 1961)
(affirming summary judgment because the nonmoving party may not
delay discovery "as a back-door defense to a test of the merits
of [the] claim"). The plaintiffs argument appears to be a
last-ditch attempt to avoid summary judgment.
Finally, the plaintiff insists that he will be able to
demonstrate that the defendant's conduct caused him significant
emotional distress. See Pl.'s Opp'n at 28-29. This assertion,
however, deals with the causation requirement and does not
relate to whether the defendant's conduct was
extreme and outrageous. In other words, even if the plaintiff
did establish that the defendant's conduct caused him emotional
distress, he could not demonstrate, as a matter of law, that the
defendant's conduct was extreme and outrageous. Because the
court holds that the plaintiff has "fail[ed] to make a showing
sufficient to establish the existence of" an essential element
of his claim — whether the defendant's conduct was extreme and
outrageous — the court grants the defendant's motion for summary
judgment on the intentional infliction of emotional distress
claim. See Celotex, 477 U.S. at 325, 106 S.Ct. 2548.
For all these reasons, the court grants the defendant's motion
for summary judgment on all three counts. An order directing the
parties in a manner consistent with this Memorandum Opinion is
separately and contemporaneously issued this 15th day of August,
GRANTING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
For the reasons stated in this court's Memorandum Opinion
separately and contemporaneously issued this 15th day of August,
2001, it is hereby
ORDERED that the defendant's motion for summary judgment is