United States District Court, D. Columbia
August 28, 2005.
ABDUL WAKIL AMIRI, Plaintiff,
CAPITAL RESTAURANTS CONCEPTS, LTD., Defendant.
The opinion of the court was delivered by: RICHARD LEON, District Judge
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
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).
Discriminatory Discharge Claim
In order to prevail in a Title VII case or a discrimination
claim under 42 U.S.C. § 1981, a plaintiff initially must
establish a prima facie case of prohibited discrimination.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973);
Carter v. George Washington Univ., 387 F.3d 872, 878 (D.C. Cir.
2004). If the plaintiff succeeds in establishing a prima facie
case, the burden of production shifts to the defendant to
articulate a legitimate, non-discriminatory reason for the
challenged action. McDonnell Douglas, 411 U.S. at 804. Once the
defendant proffers a sufficient non-discriminatory reason, the
burden shifts to the plaintiff to produce some evidence, either
direct or circumstantial, to show that defendant's proffered
reason is a pretext for discrimination. Id.; Morgan v. Federal
Home Loan Mortgage Corp., 328 F.3d 647, 651 (D.C. Cir.), cert.
denied, 540 U.S. 881 (2003). See also Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 143, 147-49 (2000).
To establish a prima facie case of discrimination in the
context of a termination from employment, the plaintiff must establish that (1) he is a member
of a protected class; (2) his job performance was at or near the
employer's legitimate expectations; (3) he was discharged; and
(4) the employer replaced plaintiff with an individual of equal
or lesser ability who is outside his protected class, or the
position remained open after the termination. Neuren v. Adduci,
Mastriani, Meeks & Schill, 43 F.3d 1507, 1512 (D.C. Cir. 1995);
Johnson v. Digital Equipment Corp., 836 F.Supp. 14, 15-16
(D.D.C. 1994). The burden of establishing a prima facie case of
employment discrimination is "not onerous." Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
The fact that plaintiff is from Afghanistan establishes his
membership in a protected class based on national origin.
Plaintiff was discharged from his position and the position was
not filled after plaintiff's termination. Three prongs of the
prima facie case have been established by plaintiff. The
evidence cited by plaintiff to support a finding that his work
performance met defendant's expectations is rather slight. One of
the reasons for this is that plaintiff's position was created
personally for him and he was not held to the same level of
standards and expectations as other employees at the restaurant.
See Jackman Decl., ¶ 2; Calkins Decl., ¶ 2.
In support of his argument that his work performance was
satisfactory, plaintiff cites the deposition testimony of
defendant's Director of Human Resources. She stated that "I don't
believe that [plaintiff] ever received a formal written
performance evaluation, but he did receive at one point in his
tenure a merit increase I mean a raise, a raise in his rate of
pay." Pl's Opp., Ex. 4, Deposition of Natalie Juenger ("Juenger
Decl."), p. 113. Although this statement is a slender reed upon
which to establish that plaintiff's work performance was
satisfactory, in the absence of negative performance evaluations
and given the low burden plaintiff must meet, the Court finds the evidence sufficient on this issue. Therefore, for the purpose
of the disposition of this motion, the Court concludes plaintiff
has established a prima facie case of discrimination.
To meet its burden of showing a legitimate reason for its
employment decision, the defendant need only "proffer," not
prove, a legitimate non-discriminatory reason for discharging the
plaintiff. McDonnell Douglas, 411 U.S. at 802. Defendant states
that plaintiff was terminated for insubordination. Defendants
cites instances where plaintiff refused to comply with orders by
supervisors that he reduce his work hours and where plaintiff
stated that he did not recognize his supervisors' authority. This
behavior continued over a period of several months.
Insubordination is a legitimate nondiscriminatory reason for
terminating an employee. Holbrook v. Reno, 196 F.3d 255, 263-64
(D.C. Cir. 1999); Richard v. Bell Atlantic Corp.,
164 F.Supp. 2d 10, 22 (D.D.C. 2001); Weiger v. Georgetown Univ.,
120 F.Supp. 2d 1, 20 (D.D.C. 2000).
Since defendant has proffered a legitimate reason for the
discharge decision, plaintiff must establish by a preponderance
of the evidence that the proffered explanation is a pretext for
discrimination. McDonnell Douglas, 411 U.S. at 804. In
assessing whether an employer's stated reason is a pretext, the
Court should consider whether a jury could infer discrimination
from the combination of (1) plaintiff's prima facie case; (2)
any evidence plaintiff presents to challenge the employer's
proffered explanation; (3) independent evidence of discriminatory
statements or conduct by the employer; and (4) any contrary
evidence by the employer of a positive record of equal
opportunity employment. Aka v. Washington Hospital Center,
156 F.3d 1284, 1289 (D.C. Cir. 1998). The issue is not one of the
correctness or the desirability of the reason offered, but
whether the employer honestly believes in the reason offered.
Fischbach v. D.C. Dep't of Corrections, 86 F.3d 1180, 1183
(D.C. Cir. 1996). Plaintiff must show that the reason offered is
a phony one. Id.
Plaintiff alleges that the proffered reason for terminating him
is a pretext for discrimination. Plaintiff contends that
defendant's failure to investigate his prior claims of
discrimination demonstrate pretext. As evidence for this
allegation, plaintiff offers three letters he allegedly telefaxed
to Mr. Cohn and Mr. Jackman on September 25, 2001, November 11,
2001, and January 6, 2002. See Pl's Opp., Exs. 5-7. However,
plaintiff has only submitted proof of confirmation on the last
letter, which was sent by plaintiff the day after he refused to
leave the restaurant as ordered. See id., Ex. 8. In addition,
defendant's supervisors all assert that they never received any
discrimination complaints from plaintiff. See Cohn Decl., ¶ 10;
Jackman Decl., ¶ 6; Calkins Decl., ¶ 8; Howard Decl., ¶ 12. The
Court finds, therefore, that plaintiff has failed to show that
the reason offered by defendant for its discharge decision is
Hostile Work Environment Claim
To establish a prima facie hostile work environment claim,
plaintiff must demonstrate that (1) he is a member of a protected
class; (2) he was subject to unwelcome harassment; (3) the
harassment occurred because of his race or national origin; (4)
the harassment affected a term, condition or privilege of
employment; and (5) defendant knew or should have known of the
harassment and failed to take action. Lester v. Natsios,
290 F.Supp. 2d 11, 22 (D.D.C. 2003). For a workplace to be hostile
under Title VII, the offensive conduct must permeate the
workplace "with discriminatory intimidation, ridicule and insult
that is sufficiently severe or pervasive to alter the conditions
of the victim's employment and create an abusive working
environment." Oncale v. Sundowner Offshore Servs., Inc.,
523 U.S. 75, 81 (1998).
In order to determine if the workplace environment was
sufficiently hostile for Title VII purposes, the Court should consider (1) the frequency of the
discriminatory conduct; (2) the severity of the conduct; (3)
whether the conduct was physically threatening or merely
offensive; and (4) whether the conduct reasonably interfered with
plaintiff's work performance. Faragher v. Boca Raton,
524 U.S. 775, 787-88 (1998). There is no Title VII liability for the
"ordinary tribulations of the workplace," such as sporadic use of
abusive language, occasional teasing, and isolated incidents.
Id. at 787; Clark County School District v. Breeden,
523 U.S. 268, 271 (2001).
Plaintiff alleges that following the events of September 11,
2001, employees at the restaurant subjected him to racial and
ethnic epithets. According to plaintiff, employees referred to
him as a "terrorist" or "Taliban" hundreds of times and the
restaurant's chef asked plaintiff "why are your people
terrorists." See Am. Compl., ¶¶ 8-9; Pl's Dep., pp. 174,
284-85. In his deposition, however, plaintiff admitted that he
enjoyed the job at the restaurant and wanted to continue to be
employed there. Plaintiff also conceded that despite this
harassment he did not seek another job. See id., pp. 191-92.
Plaintiff's hostile work environment claim fails for several
reasons. First, plaintiff has produced no evidence that the
conditions of his employment were materially altered due to the
alleged harassment. In addition, plaintiff cannot show that the
employer knew or reasonably should have known of the
discriminatory conduct. Plaintiff admitted in his deposition that
he initially did not complain about the employees' conduct
because he was afraid of losing his job. See Pl's Dep., p. 277.
Plaintiff contends he eventually sent written communications to
supervisors at the restaurant, but the record is devoid of proof
that these communications were in fact sent and received.
Plaintiff's self-serving affidavit alone will not foreclose the
granting of summary judgment or create a genuine issue of
material fact. Tolson v. James, 315 F.Supp.2d 110, 116 (D.D.C. 2004); Remedios Jose v. Hospital for Sick
Children, 130 F.Supp.2d 38, 43 (D.D.C. 2000). The relevant
employees unanimously stated that they were unaware of
plaintiff's complaints until after he was terminated. See Cohn
Decl., ¶ 10; Jackman Decl., ¶ 6; Calkins Decl., ¶ 8; Howard
Decl., ¶ 12. In sum, plaintiff has provided insufficient proof
that he was subjected to a pervasive, severe and discriminatory
hostile work environment.
Plaintiff has also brought a retaliation claim, alleging that
after he filed a complaint of discrimination with the EEOC
defendant retaliating against him by providing negative
references to prospective employees. To establish a retaliation
claim, plaintiff must show that (1) he engaged in statutorily
protected activity; (2) the employer took an adverse personnel
action; and (3) a causal connection existed between the two.
Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999) (quotations
omitted). It is well-established that filing an EEOC complaint is
a protected activity. See Holbrook, 196 F.3d at 263; Madan v.
Chow, ___ F.Supp. 2d ___, 2005 WL 555414 at *8 (D.D.C. March 2,
2005). Providing a negative reference to a prospective employer
is an adverse personnel action that can lead to Title VII
liability. Baker v. John Morrell & Co., 382 F.3d 816, 829
(8th Cir. 2004); Robinson v. City of Pittsburgh,
120 F.3d 1286, 1301 n. 15 (3rd Cir. 1997); Hashimoto v. Dalton,
118 F.3d 671, 674 (9th Cir. 1997).
A retaliation claim based on a negative job reference requires
that plaintiff show (1) disparaging comments were made by the
employer; (2) to whom the statements were made; and (3) plaintiff
was denied employment as a result of the negative reference.
Niedermeier v. Office of Baucus, 153 F.Supp. 2d 23, 31 (D.D.C.
2001). To support his claim, plaintiff has provided an affidavit
from Isabelle Badoux, Director of Human Resources at the
Washington Monarch Hotel. Ms. Badoux states that plaintiff applied for a room attendant
position at the hotel in late January, 2002. Badoux Decl. ¶ 4. On
his application, plaintiff noted that he had been employed by J.
Paul Restaurant. Id., ¶ 5. Ms. Badoux telephoned the restaurant
and was informed by Mr. Calkins that plaintiff had been fired for
insubordination. Id., ¶ 6. Ms. Badoux states that the negative
reference "contributed" to her decision not to hire plaintiff.
Id., ¶ 7.
Plaintiff has established that he filed a complaint with the
EEOC, that defendant provided a negative reference, and that
plaintiff was not offered employment as a result. However,
plaintiff has not demonstrated a causal connection between his
protected activity and the adverse personnel action. Plaintiff
has provided no proof of when he filed the EEO complaint or when
defendant became aware of the complaint.*fn1 He has not
shown a temporal link between the filing of his discrimination
complaint and defendant's negative reference to Ms. Badoux. Since
this connection is lacking, plaintiff's retaliation claim must
Tortious Interference Claim
The Court having determined that summary judgment in favor of
defendant on plaintiff's federal law claims is appropriate, the
only remaining claim is one for tortious interference with
prospective business advantage and economic relationship under
District of Columbia law. A United States District Court may
exercise supplemental jurisdiction over claims that are "part of
the same case or controversy" as a claim over which the court has
original jurisdiction. 28 U.S.C. § 1367. The court may decline to
exercise such jurisdiction if, inter alia, it has dismissed all
claims over which it has original jurisdiction.
28 U.S.C. § 1367(c)(3); see United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966).
Title 28, United States Code, Section 1367(d) provides that the
statute of limitations for any state law claim shall be tolled
while the claim is pending in federal court and for a period of
30 days after it is dismissed unless state law provides for a
longer tolling period. See Neal v. District of Columbia,
131 F.3d 172, 175 n. 5 (D.C. Cir. 1997), cert. denied, 525 U.S. 812
(1998). Since plaintiff will not be time barred from pursuing his
tort claim in the Superior Court of the District of Columbia, the
Court will decline to exercise supplemental jurisdiction and will
dismiss without prejudice plaintiff's tort claim.
The evidence presented by the parties shows that there are no
genuine issues of material fact. Plaintiff has failed to rebut
defendant's articulated non-discriminatory reason for the
decision to discharge plaintiff. As such, plaintiff cannot
establish a discrimination claim under either Title VII or
42 U.S.C. § 1981. Plaintiff has also failed to show a hostile work
environment or retaliation claim under Title VII. Defendant's
motion for summary judgment will be granted on the federal
claims. The Court will dismiss the state law claim without
prejudice. A separate Order accompanies this Memorandum Opinion.
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