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AMIRI v. CAPITAL RESTAURANTS CONCEPTS

August 28, 2005.

ABDUL WAKIL AMIRI, Plaintiff,
v.
CAPITAL RESTAURANTS CONCEPTS, LTD., Defendant.



The opinion of the court was delivered by: RICHARD LEON, District Judge

MEMORANDUM OPINION

Plaintiff has filed an amended complaint alleging that he was discharged from his employment by defendant based on his race, color, ancestry, and national origin, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and 42 U.S.C. § 1981. Plaintiff also alleges that he was subjected to a hostile work environment and that defendant retaliated against him for filing a discrimination claim with the Equal Employment Opportunity Commission ("EEOC"). The amended complaint also contains a common law claim for tortious interference with prospective business advantage and economic relationship.

Defendant has filed a motion for summary judgment. Because the Court finds that the undisputed material facts establish that defendant had a legitimate, non-discriminatory reason for discharging plaintiff from his employment and that plaintiff has not provided sufficient evidence to support the hostile work environment and retaliation claims, summary judgment will be granted on the federal claims. The common law claim will be dismissed without prejudice. Factual Background

  Plaintiff is a native of Afghanistan. Amended Complaint ("Am. Compl."), ¶ 1. Defendant operates J. Paul Restaurant, located at 3218 M Street, NW, Washington, DC. Id. Plaintiff was employed at the J. Paul Restaurant from March 28, 1998 to January 5, 2002. Id., ¶ 6. In 1998, a Senior Executive Officer of defendant, Paul Cohn, met plaintiff working as a street vendor. Defendant's Motion for Summary Judgment ("Deft's Mot."), Exhibit ("Ex."), Declaration of Paul Cohn ("Cohn Decl."), ¶ 2. As an act of charity, Mr. Cohn directed J. Paul Restaurant to create a kitchen utility worker position for plaintiff so that plaintiff could afford basic living expenses. Id., ¶¶ 2-3. In that position, plaintiff's duties consisted of cleaning of storage areas and cutting up boxes. Id., ¶ 4.

  Plaintiff claims that prior to September 11, 2001 the restaurant was a hospitable work environment. Am. Compl., ¶ 6. From that day and until his termination, plaintiff alleges that defendant's officers and employees uttered racial and ethnic epithets at him, repeatedly harassed him and referred to him as a "terrorist" or "Taliban." Deft's Mot., Ex. 2, Deposition of Plaintiff ("Pl's Dep."), pp. 174, 223, 284-85, 307. On the date of his termination, plaintiff alleges that one of defendant's employees told him to leave and that he "doesn't want terrorists." Am. Compl., ¶ 11.

  In the Fall of 2001, J. Paul Restaurant suffered a significant decline in revenue. Cohn Decl., ¶ 6. As a result, defendant instituted a policy stating that no employee was to work more than 40 hours a week. Id. Plaintiff was repeatedly informed of this policy. Deft's Mot., Ex. 10, Declaration of Drew Jackman ("Jackman Decl."), ¶ 5. Plaintiff repeatedly violated the policy by refusing to work less than forty hours a week and disobeyed orders by his supervisors to clock out early on days when business was slow at the restaurant. Id., Ex. 11, Declaration of David Calkins ("Calkins Decl."), ¶¶ 4, 6; Ex. 13, Declaration of Lee Howard ("Howard Decl."), ¶¶ 4, 5.

  On January 5, 2002, B.T. All, the restaurant's sous-chef, told plaintiff to leave work before the end of his shift. Id., Ex. 15, Declaration of B.T. All ("All Decl."), ¶ 5. Plaintiff refused to comply with this order and told Mr. All that he did not have the authority to tell him to leave early. Id. Mr. All informed Lee Howard, the Assistant Manager, of these facts. Howard Decl., ¶ 6. Mr. Howard approached plaintiff that night and told him to clock out. Id. Plaintiff told Mr. Howard he did not have the authority to issue such an order. Id. In response, Mr. Howard instructed plaintiff not to return to work until he had spoken with Drew Jackman, the General Manager, on January 7, 2002. Id.

  The next day, plaintiff attempted to clock-in for work prior to speaking to Mr. Jackman. Id., ¶ 9. Mr. Howard told plaintiff to leave the restaurant. Id. On January 7, 2002, Mr. Jackman informed plaintiff that he was being terminated from his position due to insubordination. Jackman Decl., ¶ 6. On January 25, 2002, plaintiff alleges he filed a complaint with the EEOC. Am. Compl., ¶ 14. The EEOC sent plaintiff a right-to-sue letter on November 5, 2002. Compl., Attachment.

  Plaintiff asserts that he applied for over 200 jobs in the Washington, DC area following his termination by defendant. Plaintiff's Opposition to Motion for Summary Judgment ("Pl's Opp."), Ex. 1, Pl's Decl., ¶ 12. He also claims that several prospective employees informed him that he was not hired, in part, because of a negative reference from David Calkins, General Manager of J. Paul's restaurant. Id., ¶ 17. The Director of Human Resources at the Washington Monarch Hotel affirmed that Mr. Calkins' statement to her that plaintiff had been terminated for insubordination contributed to her decision not to hire plaintiff as a room attendant. Id., Ex. 11, Declaration of Isabelle Badoux ("Badoux Decl."), ¶ 7.

  Standard of Review

  Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate if the pleadings 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 judgment as a matter of law. Fed.R.Civ.P. 56 (c). Material facts are those that "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party seeking summary judgment bears the initial burden of demonstrating an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994).

  In considering whether there is a triable issue of fact, the Court must draw all reasonable inferences in favor of the non-moving party. Anderson, 477 U.S. at 255; see also Washington Post Co. v. United States Dep't of Health and Human Servs., 865 F.2d 320, 325 (D.C. Cir. 1989). The party opposing a motion for summary judgment, however, "may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 248. The non-moving party must do more than simply "show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Moreover, "any factual assertions in the movant's affidavits will be accepted as being true unless [the opposing party] submits his own affidavits or other documentary evidence contradicting the assertion." Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992) (quoting Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir. 1982)). The mere existence of a factual dispute by itself, however, is not enough to bar summary judgment. The party opposing the motion must show that there is a genuine issue of material fact. See Anderson, 477 U.S. at 247-48. To be material, the fact must be capable of affecting the outcome of the litigation; to be genuine, the issue must be supported by admissible evidence sufficient for a reasonable trier of fact to find in favor of the nonmoving party. Id.; see also Laningham v. United States Navy, 813 F.2d 1236, 1242-43 (D.C. Cir. 1987).

  Discussion

  Discriminatory ...


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