United States District Court for the District of Columbia
May 24, 2004.
REZA MIANEGAZ, Plaintiff
HYATT CORPORATION, Defendant
The opinion of the court was delivered by: RICARDO URBINA, District Judge
DISMISSING THE PLAINTIFF'S ADEA TERMINATION CLAIM AND
GRANTING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ON THE
This case comes before the court on the defendant's motion for summary
judgment. The plaintiff alleges that his former employer, the defendant,
unlawfully discriminated against him in violation of the Age
Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and
the District of Columbia Human Rights Act ("DCHRA"), D.C. Code §§ 2-1401
et seq. The court dismisses the plaintiff's ADEA termination claim
because he has failed to exhaust the ADEA's prescribed administrative
remedies for that claim. As to the plaintiff's remaining claims, the
court grants the defendant's motion for summary judgment because the
plaintiff has failed to establish a prima facie case of age discrimination
under either the ADEA or the DCHRA. II. BACKGROUND
A. Factual Background
The plaintiff began working for the defendant as a butcher in 1981.
Def's Statement of Undisputed Facts ("Def's Statement") ¶¶ 1-4; Pl.'s
Statement of Disputed Facts ("Pl.'s Statement") ¶ 4. In January 2000,
one of the plaintiff's supervisors reported that the plaintiff directed
inappropriate and abusive language at another employee. Def.'s Statement
¶ 6; see generally Pl.'s Statement. After this incident, the plaintiffs
supervisors warned him that any repeated conduct of this nature could
result in his termination. Def.'s Statement f 7; see generally Pl.'s
A few months later, in April 2000, a supervisor reported that the
plaintiff confronted and threatened him after once again directing
inappropriate and abusive language at another employee. Def.'s Statement
¶¶ 8-9; see generally Pl.'s Statement. As a result of this second
transgression, the defendant suspended the plaintiff for five days and
required him to attend and provide documentation of anger-management
counseling. Def.'s Statement ¶¶ 10-11; see generally Pl.'s Statement.
Nearly a year later, in March 2001, another supervisor reported that
the plaintiff had, yet again, used inappropriate and abusive language in
the workplace. Def.'s Statement ¶ 15; see generally Pl.'s Statement.
Consequently, the defendant suspended the plaintiff for ten days, again
ordering him to attend and document his enrollment in anger-management
counseling. Def.'s Statement ¶¶ 16-17; see generally Pl.'s Statement. The
plaintiff refused to attend the defendant's prescribed anger-management
counseling. Mussad Decl. ¶¶ 6-7 & Attachs. 3-4, 6-7. Due to his suspensions, on March 22, 2001, the then 58-year-old
plaintiff filed a complaint with the Equal Employment Opportunity
Commission ("EEOC"), alleging that the defendant discriminated against
him on the basis of his age. Def.'s Statement ¶ 39; Pl.'s Dep. Tr.
("Pl.'s Dep.") Ex. 3. Specifically, he claimed that the defendant had not
suspended similarly situated younger employees for comparable conduct.
Def.'s Statement ¶ 41; Pl.'s Dep. Ex. 3.
On November 2001, while his EEOC complaint was pending, the plaintiff
reported that he injured his back while lifting a box of meat at work.
Def.'s Statement ¶ 20; Pl.'s Statement ¶ 4. As a result of his alleged
injury, the plaintiff discontinued work, presented the defendant with a
doctor's statement restricting his employment activities, and filed for
workers' compensation. Def.'s Statement ¶ 22; Pl.'s Statement ¶ 4.
Thereafter, in an effort to verify the legitimacy of the plaintiff's
reported injury and inability to work, the workers' compensation
insurance provider had the plaintiff submit to an independent medical
evaluation and assigned private investigators to conduct surveillance of
the plaintiff. Def.'s Statement ¶ 23; see generally Pl.'s Statement. In
January 2002, the defendant received a videotape from the insurance
provider that contained footage of the plaintiff repeatedly lifting
luggage. Def.'s Statement ¶ 24; see generally Pl.'s Statement. The
defendant also received a copy of the independent medical evaluation,
which determined that the plaintiffs conduct on the videotape was
inconsistent with his reported condition and that the plaintiff could
work without restriction. Def.'s Statement ¶¶ 25-31; see generally Pl.'s
Statement. After reviewing the videotape and the medical evaluation, the
defendant's general manager, in conjunction with the recommendation of
the defendant's director of human resources, terminated the plaintiff for
"misrepresent[ing] his ability to work after allegedly suffering an
on-the-job injury." Def.'s Statement ¶¶ 33-34, 37; see generally Pl.'s
Statement. B. Procedural History
On March 29, 2002, the EEOC issued the plaintiff a "Notice of Right to
Sue" at the request of his counsel. Am. Compl. at 2; Pl.'s Dep. Ex. E. On
April 24, 2002, the plaintiff initiated this suit against the defendant,
alleging that the defendant violated the ADEA by suspending and later
terminating the plaintiff on account of his age. Compl. ¶ 2; Am. Compl.
at 1-2. On May 12, 2003, pursuant to the parties' stipulation, the
plaintiff amended his complaint, adding an unlawful-termination claim
under the DCHRA. Am. Compl. at 3-4. After receiving the plaintiff's
consent, the defendant late-filed an answer to the amended complaint,
advancing, inter alia, the affirmative defense of failure to exhaust
administrative remedies with regard to the plaintiff's ADEA termination
claim. Answer to Am. Compl. at 5. On November 3, 2003, the defendant
filed its motion for summary judgment. The court now addresses that
A. The Court Dismisses the Plaintiff's ADEA Termination
1. Legal Standard for Exhaustion of Administrative Remedies Under the
The purpose of the ADEA is to "promote employment of older persons
based on their ability rather than age; to prohibit arbitrary age
discrimination in employment; [and] to help employers and workers find
ways of meeting problems arising from the impact of age on employment."
29 U.S.C. § 621(b). Toward that end, the ADEA gives an individual who
is at least 40 years old the right to seek relief against his employer if
the employer has taken some adverse employment action against him on the
basis of age rather than ability. Id. §§ 623, 631(a).
Before filing suit under the ADEA, a putative plaintiff must exhaust
his administrative remedies by filing a charge of discrimination with the EEOC within 180
days of the alleged discriminatory incident. Id. § 626(d)(1); see also
Washington v. Wash. Metro Area Transit Auth., 160 F.3d 750, 752 (D.C.
Cir. 1998) (stating that "[b]efore suing under the ADEA[,] . . . an
aggrieved party must exhaust his administrative remedies by filing a
charge of discrimination with the EEOC"). The "charge" requirement
mandates the filing of a written statement identifying the potential
defendant and generally describing the alleged discriminatory incident.
H.R. Rep. No. 95-950, at 12 (1978) (conference report). According to the
[a] vague or circumscribed EEOC charge will not
satisfy the exhaustion requirement for claims it does
not fairly embrace. Allowing a complaint to encompass
allegations outside the ambit of the predicate EEOC
charge would circumvent the EEOC's investigatory and
conciliatory role, as well as deprive the charged
party of notice of the charge, as surely as would an
initial failure to file a timely EEOC charge.
Naturally every detail of the eventual complaint need
not be presaged in the EEOC filing, but the substance
of . . . [the] claim . . . must fall within the scope
of the administrative investigation that can be
reasonably expected to follow the charge of
Marshall v. Fed. Express Corp., 130 F.3d 1095, 1098 (D.C. Cir. 1997)
(internal citations and quotations omitted).
Dismissal results when a plaintiff fails to exhaust administrative
remedies. See Rann v. Chao, 346 F.3d 192, 194-95 (D.C. Cir. 2003)
(affirming the trial court's dismissal of the plaintiff's ADEA claim for
failure to exhaust administrative remedies). While it remains unclear
whether a failure to exhaust administrative remedies is jurisdictional,
"nothing turns on the characterization" of such a dismissal, and the
court need not "explore the matter [any] further." Id.; see also Stewart
v. Ashcroft, 352 F.3d 422, 425-26 (D.C. Cir. 2003) (declining to address
whether exhaustion qualifies as a jurisdictional requirement and
affirming the district court's dismissal of the discrimination claim for
failure to exhaust administrative remedies). 2. The Plaintiff's Failure to Exhaust Administrative
Remedies Bars His ADEA Termination Claim
The plaintiff's termination claim fails to meet the ADEA's exhaustion
requirements simply because his EEOC complaint does not "fairly embrace"
his termination. Marshall, 130 F.3d at 1098. In fact, the plaintiff's
EEOC complaint refers only to his suspensions, making no mention of his
termination. Pl.'s Dep. Ex. 3. Of course, it would be curious if not
clairvoyant for his EEOC complaint to actually reference his
termination, given the fact that he filed it some ten months before his
eventual discharge. Def.'s Statement ¶ 2; see generally Pl.'s
In a case that presents circumstances parallel to those in the instant
matter, the D.C. Circuit addressed the exhaustion requirements of the
Americans with Disabilities Act ("ADA"). Marshall, 130 F.3d at 1096-98.
In that case, an employee complained to the EEOC that her employer
violated the ADA by denying her the opportunity to apply for a different
position. Id. at 1096. The employer subsequently terminated the employee
and, as a result, the employee filed suit asserting a
discriminatory-discharge claim against her employer. Id. at 1097. The
D.C. Circuit held that the employee failed to exhaust administrative
remedies because she neither amended her EEOC charge to include the
discriminatory-discharge claim nor filed a separate charge related to her
termination. Id. at 1098; accord Johnson v. Quin Rivers Agency for Cmty.
Action, Inc., 140 F. Supp.2d 657, 663 (E.D. Va. 2001) (dismissing the
plaintiff's discriminatory-discharge claim for failure to exhaust
administrative remedies because her EEOC charge was "silent . . . with
respect to any allegation that [the p]laintiff was discharged, or that
such discharge was discriminatory").
Similarly, the plaintiff in the present case has failed to exhaust
administrative remedies for his ADEA termination claim. Marshall, 130 F.3d at 1098; accord
Stewart, 352 F.3d at 425-26; Rann, 346 F.3d at 194-95. Accordingly, the
court dismisses that claim and moves on to address the plaintiffs
remaining claims of unlawful suspension under the ADEA and unlawful
termination under the DCHRA.
B. The Court Grants the Defendant's Motion for Summary
Judgment on the Plaintiff's Remaining Claims
A plaintiff pursuing claims under the ADEA or the DCHRA may demonstrate
discrimination through either direct or circumstantial evidence. Dunaway
v. Int'l Bhd. of Teamsters, 310 F.3d 758
, 763 (D.C. Cir. 2002). Here, the
plaintiff neither establishes nor sufficiently alleges direct evidence of
age discrimination, relying instead on circumstantial evidence. See
generally Am. Compl.; Pl.'s Statement; Pl.'s Opp'n. In resolving the
defendant's summary-judgment motion, the court must therefore "apply the
framework developed in the context of Title VII litigation[. T]hat is,
where direct evidence of discriminatory intent is not available, a party
may establish unlawful age discrimination by relying on the familiar
burden-shifting scheme" known as the McDonnell Douglas framework. Hall
v. Giant Food, Inc., 175 F.3d 1074
, 1077 (D.C. Cir. 1999) (citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792
, 802-05 (1973)).
Courts routinely apply the McDonnell Douglas framework to ADEA claims.
E.g., id. at 1077 (applying the McDonnell Douglas framework to ADEA
claims); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 140-43
(2000) (assuming that the McDonnell Douglas framework is fully applicable
to ADEA actions); Paquin v. Fed. Nat'l Mortgage Ass'n, 119 F.3d 23, 26
(D.C. Cir 1997) (concluding that "[i]n ADEA cases we apply the familiar
three-step burdenshifting [McDonnell Douglas] framework"). This framework also
applies to DCHRA discrimination claims. Paquin, 119 F.3d at 27 n.1
(extending "the same analysis to . . . ADEA and DCHRA claims"); Perkins
v. District of Columbia, 769 F. Supp. 11, 14 n.3 (D.D.C. 1991) (Penn, J.)
(noting that the "McDonnell Douglas approach has been adopted by [c]ourts
reviewing [DCHRA] claims of employment discrimination").
1. The McDonnell Douglas Framework
The Supreme Court has explained the McDonnell Douglas framework as
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.
Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248
, 252-53 (1981)
(internal citations omitted) (quoting McDonnell Douglas, 411 U.S. at
To establish a prima facie case of age discrimination, the plaintiff
must show that: (1) he is a member of the ADEA's protected class of
persons over forty years of age; (2) he was qualified for his position and
was performing his job well enough to meet his employer's legitimate
expectations; (3) he suffered an adverse employment action despite his
qualifications and performance; and (4) he was disadvantaged in favor of
similarly situated younger employees. Reeves, 530 U.S. at 142; Hall, 175
F.3d at 1077; Paquin, 119 F.3d at 26 (citing Coburn v. Pan Am. World
Airways, Inc., 711 F.2d 339, 342 (D.C. Cir. 1983)). "The burden of
establishing a prima facie case of disparate treatment is not onerous," Burdine, 450
U.S. at 253, and because the McDonnell Douglas model of the prima facie
case is not "rigid, mechanized, or ritualistic," its requirements can
vary depending on the factual context. Swierkiewicz v. Sorema N.A.,
534 U.S. 506, 512 (2002) (quoting Furnco Constr. Corp. v. Waters,
438 U.S. 567, 577 (1978)). If the plaintiff establishes a prima facie
case, a presumption then arises that the employer unlawfully
discriminated against him. Burdine, 450 U.S. at 254.
To rebut this presumption, the defendant must articulate a legitimate,
non-discriminatory reason for its action. Id. The defendant, however,
"need not persuade the court that it was actually motivated by the
proffered reasons." Id. (articulating that the employer's burden is one of
production, not persuasion). Rather, "[t]he defendant must clearly set
forth, through the introduction of admissible evidence, reasons for its
actions which, if believed by the trier of fact, would support a finding
that unlawful discrimination was not the cause of the employment action."
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993).
If the defendant successfully presents a legitimate, non-discriminatory
reason for its action, "the McDonnell Douglas framework with its
presumptions and burdens disappears, and the sole remaining issue is
discrimination vel non." Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. Cir.
2003) (internal citations omitted). At this point, to survive summary
judgment, the plaintiff "must show that a reasonable jury could conclude
from all of the evidence that the adverse employment decision was made
for a discriminatory reason." Id. (citing Aka, 156 F.3d at 1290). The
court must therefore consider whether a jury could infer discrimination
from (1) the plaintiff's prima facie case, (2) any evidence the plaintiff
presents to attack the employer's proffered explanation, and (3) any
further evidence of discrimination that may be available to the plaintiff. Waterhouse v. District of Columbia, 298 F.3d 989, 992-93 (B.C.
Cir. 2002) (quoting Aka, 156 F.3d at 1289). The plaintiff need not
present evidence in each of these categories in order to avoid summary
judgment. Aka, 156 F.3d at 1289. Instead, the court should assess the
plaintiff's challenge to the defendant's explanation in light of the total
circumstances of the case. Id. at 1291.
2. Legal Standard for Summary Judgment
Summary judgment is appropriate when "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, 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); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540
(D.C. Cir. 1995). To determine which facts are "material," a court must
look to the substantive law on which each claim rests. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (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. Celotex, 477 U.S. at 322;
Anderson, 477 U.S. at 248.
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. Anderson, 477 U.S. at 255. A
nonmoving party, however, must establish more than "the mere existence of
a scintilla of evidence" in support of its position. Id. at 252. 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 on which
that party will bear the burden of proof at trial." Celotex, 477 U.S. at
322. By pointing to the absence of evidence proffered by the nonmoving party, a moving
party may succeed on summary judgment. Id.
In addition, the nonmoving party may not rely solely on allegations or
conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir.
1999); Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993). Rather, the
nonmoving party must present specific facts that would enable a
reasonable jury to find in its favor. Greene, 164 F.3d at 675. If the
evidence "is merely colorable, or is not significantly probative, summary
judgment may be granted." Anderson, 477 U.S. at 249-50 (internal
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, 879-80 (D.C. Cir. 1997), overturned
on other grounds, 156 F.3d 1284 (D.C. Cir. 1998) (en banc); see also
Johnson v. Digital Equip. Corp., 836 F. Supp. 14, 18 (D.D.C. 1993).
3. The Plaintiff Has Failed to Establish a Prima Facie
Case of Age Discrimination
As noted, the plaintiff must establish a prima facie case of age
discrimination with respect to his ADEA claim of unlawful suspensions and
his DCHRA termination claim. Because the same analytical framework
applies to both ADEA and DCHRA claims, the court analyzes the plaintiff's
remaining claims in tandem under the McDonnell Douglas approach. See
Paquin, 119 F.3d at 27 n.1 (concluding that "[b]ecause we apply the same
analysis to [the plaintiffs] ADEA and DCHRA claims, we refer from this
point on to his claim under the ADEA only").
To establish his prima facie case of age discrimination, the plaintiffs
evidence must "create a reasonable inference that age . . . was a
determining factor in the employment decision." Cuddy v. Carmen, 694 F.2d 853, 856-57 (B.C. Cir. 1982).
Specifically, the plaintiff must prove, inter alia, that he was performing
his job well enough to meet the defendant's legitimate expectations, and
was disadvantaged in favor of a similarly situated younger employee.*fn1
Reeves, 530 U.S. at 142; Hall, 175 F.3d at 1077; Paquin, 119 F.3d at 26;
Coburn, 711 F.2d at 342. This the plaintiff cannot do.*fn2
Right out of the starting gate, the plaintiff fails to prove that he
was performing his job well enough to meet his employer's legitimate
expectations. Indeed, the record demonstrates that the plaintiff's job
performance did not meet the defendant's legitimate expectations in
several respects. To begin with, the defendant received several reports that the
plaintiff directed inappropriate, profane, and abusive language at his
coworkers. Mussad Decl. ¶¶ 4-7 & Attachs. 1-5. This sort of behavior
violates the defendant's rules for employee conduct, which prohibit
"intimidation or threats of any kind against guests, supervisors, or
coworkers [, and] . . . using vulgarity or failing to be courteous at all
times." Ballinger Decl. ¶ 4. In addition, the plaintiff refused to
attend the defendant's prescribed anger-management counseling, even after
the defendant warned him that his failure to do so could lead to his
termination. Mussad Decl. ¶¶ 6-7 & Attachs. 3-4, 6-7. Adding insult to
injury, the plaintiff filed an apparently fraudulent workers'
compensation claim.*fn3 Id. Attach. 8; Ellin Decl. ¶ 5. Such conduct
also violates the defendant's rules for employee conduct, which proscribe
dishonesty and the "[f]alsification of any employment records . . .
during employment." Ballinger Decl. ¶ 4. In a rather terse response, the
plaintiff merely opines that these allegations are untrue, advancing no
probative evidence that he performed his job well enough to meet the
defendant's legitimate expectations.*fn4 See generally Pl.'s Statement;
Pi's Opp'n. Finally, the plaintiff essentially concedes that he was not
meeting the defendant's legitimate expectations. When asked why he
believed that age motivated the defendant's employment decisions, the
plaintiff stated in response: "That's the reason I felt it because I'm getting old," and that "this job is
getting too much. I need help." Pl.'s Dep. at 74-75, 90.
Moreover, the plaintiff does not demonstrate that he was disadvantaged
in favor of a similarly situated younger employee. McGill v. Munoz,
203 F.3d 843, 848 (D.C. Cir. 2000); Neuren v. Adduci, Mastriani, Meeks
& Schill, 43 F.3d 1507, 1514 (D.C. Cir. 1995); see also O'Connor v.
Consolidated Coin Caterers Corp., 517 U.S. 308, 312-13 (1996) (observing
that an ADEA plaintiff need not demonstrate that he was disadvantaged in
favor of a person outside of the protected class i.e., younger than 40
years of age and that he could demonstrate such disadvantage in favor
of a "substantially younger" individual); see generally Pl.'s Statement;
Pl.'s Opp'n. In fact, the plaintiff has not even so much as identified a
single similarly situated younger employee. Id.; Pl.'s Dep. at 93, 98.
Although the plaintiff asserts that two of his supervisors "used
profanity at all times" without consequence, Pl.'s Opp'n at 3; Miller
Decl. ¶¶ 3-4, this assertion is misplaced because the plaintiff's
supervisors are not proper comparators as a matter of law. Holbrook, 196
F.3d at 261; Barbour v. Browner, 181 F.3d 1342, 1345 (D.C. Cir. 1999);
Neuren, 43 F.3d at 1514 (quoting Pierce v. Commonwealth Life Ins. Co.,
40 F.3d 796, 802 (6th Cir. 1994)). In addition, the plaintiff undercuts
his argument by suggesting that there is no evidence that the
supervisors' alleged profanity reached the attention of management. See
Miller Decl. ¶ 5 (stating a belief that the supervisors' alleged
profanity went unreported to human resources). Without that integral
link, the court is unable to accept the plaintiff's invitation to infer
discriminatory conduct on the part of the defendant. On the other hand,
the defendant offers considerable evidence indicating that it treated
younger employees no differently than the plaintiff. Specifically, the
defendant provides evidence that it suspended several younger employees for using inappropriate, profane, or abusive language and other
unprofessional conduct involving guests, supervisors, and coworkers.
Ballinger Decl. ¶¶ 4-5. The defendant also reveals that it terminated
several of its younger employees for falsifying employment-related
documents.*fn5 Id. ¶ 4. Further buttressing the defendant's position is
the fact that the defendant neither replaced the plaintiff with a younger
employee, nor plans to hire someone to fill the plaintiff's shoes. Id.
At bottom, the plaintiff falls short of establishing a prima facie case
of discrimination by not drawing the necessary "inference that age . . .
was a determining factor in the [defendant's] employment decision[s]."
Cuddy, 694 F.2d at 856-57. Accordingly, the court grants the defendant's
motion for summary judgment on the plaintiff's ADEA unlawful-suspensions
claim and his DCHRA termination claim. FED. R. CIV. P. 56(c); Celotex,
477 U.S. at 322; Aka, 156 F.3d at 1291; Diamond, 43 F.3d at 1540. IV. CONCLUSION
For all of the foregoing reasons, the court dismisses the plaintiff's
ADEA termination claim and grants the defendant's motion for summary
judgment on the remaining claims. An order directing the parties in a
manner consistent with this Memorandum Opinion is separately and
contemporaneously issued this 24th day of May 2004.