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.
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).