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N'samba Ndondji,*Fn1 v. Interpark Inc.

March 9, 2011


The opinion of the court was delivered by: John D. Bates United States District Judge


Plaintiff N'samba Ndondji brings this action against his former employer, InterPark Incorporated, and its parent company, InterPark Holdings Incorporated*fn2 ("collectively InterPark"), asserting claims of discrimination and retaliation in violation of 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and the District of Columbia Human Rights Act ("DCHRA"), D.C. Code § 2-1401.01 et seq. Now before the Court is InterPark's motion to partially dismiss the amended complaint. For the reasons discussed below, the Court will grant in part and deny in part InterPark's motion.


Ndondji, a black male from Angola, started working on July 28, 1988, as a lobby attendant for InterPark at the Willard Hotel. Am. Compl. ¶¶ 1-2. During his employment, InterPark transferred him to several different facilities to work as a parking attendant and then later as an assistant manager. Id. He completed courses for customer service and was recognized as "employee of the month" several times. Id. ¶¶7-8.

As a result of his work, Ndondji claims that he was transferred to assignments "where others would not go" and "where the company was most busy." Id. ¶ 9. According to Ndondji, he would improve the parking situation at each location but received "little or no [pay] increases" for his efforts. Id. Sometime in 2004, Ndondji was transferred to the 1900 19th Street N.W. location, which he alleges was one of the "busiest" locations and where some parking attendants*fn3 caused accidents. Id. ¶ 10. "No one else was interested in taking this location." Id. Ndondji alleges that he "immediately improved all areas of operation at this location," id. ¶ 11, and focused on improving revenue and decreasing the number of accidents, id. ¶ 12. Ndondji attempted to improve the performance of attendants by "testing" each one to determine if they could perform their jobs. Id. ¶ 14. Many employees failed his test, but management insisted that he continue working with them and "resisted" his efforts to improve the location. Id.

Although he fails to specify the timing of the alleged discrimination, Ndondji contends that management placed him in the "worst" and "most difficult locations" and continued to impose conditions that prevented him from successfully performing his job. Id. ¶¶ 33-34. He was ordered to "refrain from putting up a 'Full' sign even when there were no safe [parking] spaces available," id. ¶ 13, and was forced to "overpark" to increase revenue, even though overparking could lead to more accidents, id. ¶ 36.

Ndondji also claims that he received "very little support with manpower." Id. ¶¶ 14-15, 34. Management allegedly failed to provide him with competent attendants and send replacements when attendants failed to show up or called in sick. Id. ¶ 15. Unlike other workers who were "similarly situated" and "not Black or of Angolan descent," he was forced to work without a reasonable number of attendants and was not allowed to choose the attendants assigned to his area. Id. ¶ 32a.

Sometime in the beginning of 2006, Ndondji claims that garage and area managers requested a meeting with corporate human resources department representatives from the Chicago office to complain about the "ongoing discrimination" against "individuals of African descent." Id. ¶ 17. During the summer of 2006, human resources representatives met with InterPark employees who complained about Melissa Silver-Ward from the human resources department and Richard Rosenberger, the District General Manager. Id. ¶ 18. These employees complained that foreign nationals received different treatment than non-foreign nationals and that Rosenberger had targeted "foreign nationals" for disciplinary action. Id. ¶ 19. Ndondji was "very vocal" at this meeting and claims that the representatives "promised to investigate and respond" to the employees' complaints but never did. Id. ¶ 21.

Ndondji alleges that Silver-Ward then assigned Tony Stevenson, a new manager, to "observe" and "spy" on him in retaliation for his complaints of discriminatory behavior. Id. ¶¶ 40B, 47. Stevenson allegedly made "false statements regarding [his] practices," id. ¶ 23, and falsely accused him of taking money and of poor performance, id. ¶¶ 40C, 48. Ndondji claims that Stevenson's accusations were untrue and that he actually improved the conditions at the garage. Id. ¶¶ 24, 42-44. Shortly thereafter, Ndondji was placed on a Performance Improvement Plan ("PIP") for "failing to reduce the accidents and improve revenue." Id. ¶ 23. Although he believed he should not have been placed on the PIP, Ndondji maintains that he tried "his hardest" to make even greater improvements and "gave up lunch and times off to drive when attendants were unavailable." Id. ¶ 25. Ndondji claims he never received periodic PIP evaluations as required and was fired at the end of the PIP and before his scheduled vacation. Id.

¶¶ 26-27, 45. On December 12, 2006, Ndondji was terminated for failing to make improvements, although he maintains that he was never offered any evidence of his poor performance. Id. ¶ 27.

Ndondji alleges that he filed a timely charge of discrimination and retaliation with the Equal Employment Opportunity Commission ("EEOC") on February 27, 2007 and received an EEOC right-to-sue letter that was dated September 30, 2009. Id. ¶¶ 28-29. On December 30, 2009, Ndondji filed his case in this Court. Ndondji's amended complaint is vague in its allegations and does not distinguish clearly between claims, but the Court discerns the following claims: (1) discrimination and retaliation claims under section 1981, (2) discrimination and retaliation claims under Title VII, and (3) discrimination and retaliation claims under DCHRA.

On March 1, 2010, InterPark filed a motion to partially dismiss the complaint and attached as an exhibit Ndondji's "Charge of Discrimination" ("DCOHR/EEOC charge") that he filed with the D.C. Office of Human Rights ("DCOHR") on June 4, 2007. Ndondji's DCOHR/EEOC charge was cross-filed with the EEOC. On the DCOHR/EEOC charge, Ndondji checked the box that indicated that he had been discriminated against on the account of his national origin. He alleged that (1) he had been "unjustly issued a disciplinary write-up" and (2) "unjustly discharged from employment." Ndondji filed his opposition to the motion on March 12, 2010.*fn4 On March 15, 2010, Ndondji filed an amended complaint, and on March 29, 2010, prior to any discovery, InterPark filed a second motion to partially dismiss the amended complaint, which is now ripe.


All that the Federal Rules of Civil Procedure require of a complaint is that it contain "'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). Although "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide the "grounds" of "entitle[ment] to relief," a plaintiff must furnish "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555-56; see also Papasan v. Allain, 478 U.S. 265, 286 (1986). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570); accord Atherton v. District of Columbia Office of the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009). A complaint is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949. This amounts to a "two-pronged approach" under which a court first identifies the factual allegations entitled to an assumption of truth and then determines "whether they plausibly give rise to an entitlement to relief." Id. at 1950-51.

The notice pleading rules are not meant to impose a great burden on a plaintiff. Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512-13 (2002). When the sufficiency of a complaint is challenged by a motion to dismiss under Rule 12(b)(6), the plaintiff's factual allegations must be presumed true and should be liberally construed in his or her favor. Leatherman v. Tarrant County Narcotics & Coordination Unit, 507 U.S. 163, 164 (1993); Phillips v. Bureau of Prisons, 591 F.2d 966, 968 (D.C. Cir. 1979); see also Erickson, 551 U.S. at 94 (citing Twombly, 550 U.S. at 555-56). The plaintiff must be given every favorable inference that may be drawn from the allegations of fact. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). However, "the court need not accept inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in the complaint." Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Nor does the court accept "a legal conclusion couched as a factual allegation," or "naked assertions [of unlawful misconduct] devoid of further factual enhancement." Iqbal, 129 S. Ct. at 1949-50 (internal quotation marks omitted); see also Aktieselskabet AF 21. November 21 v. Fame Jeans Inc., 525 F.3d 8, 17 n.4 (D.C. Cir. 2008) (explaining that the court has "never accepted legal conclusions cast in the form of factual allegations").


In considering a motion to dismiss, "a court is limited to considering facts alleged in the complaint, any documents attached to or incorporated by reference in the complaint, matters of which the court may take judicial notice, and matters of public record." Felder v. Johanns, 595 F. Supp. 2d 46, 58-59 (D.D.C. 2009) (citing EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997)). A court may consider an EEOC complaint and Notice of Charge without converting a motion to dismiss into a motion for summary judgment because such records are "public document[s] of which a court may take judicial notice." Ahuja v. Detica Inc., No. 09-2246, 2010 WL 3833956, at *4 (D.D.C. September 30, 2010) (citing Wiley v. NEBF Invs., No. 09-CV-223, 2010 WL 114953, at *1 n.1 (D.D.C. January 12, 2010)); see also Williams v. Chu, 641 F. Supp. 2d 31, 35 (D.D.C. 2009) (finding that the court could take judicial notice of EEOC decision denying plaintiff's request for reconsideration of her discrimination complaints). The Court may therefore consider Ndondji's Charge of Discrimination that was filed with the DCOHR and cross-filed with the EEOC in evaluating this motion.

InterPark now moves to dismiss most of Ndondji's claims in his amended complaint, except his discrimination claims under Title VII and DCHRA based on his termination. InterPark argues that all of Ndondji's section 1981 claims should be dismissed because his claims are not based on racial discrimination and that his other Title VII and DCHRA discrimination and retaliation claims should be dismissed because he failed to exhaust his administrative remedies, those claims are barred by the statute of limitations, and Ndondji failed to establish a prima facie case of discrimination. The Court will address each of these arguments in turn.

I. Section 1981 Claims

A. Failure to State a Claim

InterPark moves to dismiss all of Ndondji's section 1981 claims because he only alleges national origin discrimination and section 1981 provides protection against racial discrimination only. Mem. of Points and Auth. in Supp. of Def. Interpark Inc.'s Mot. to Partially Dismiss Pl.'s Am. Compl. ("Def.'s Mem.") at 5-8; Def. InterPark Inc.'s Reply to Pl.'s Opp'n to Def.'s Mot. to Partially Dismiss Pl.'s Am. Compl. ("Def.'s Reply") at 2-4. InterPark argues that the only basis for discrimination that Ndondji identified in his DCOHR/EEOC charge and his amended complaint was national origin. Def.'s Mem. at 5; Def.'s Reply at 3, n.2. Ndondji responds that he sufficiently alleged that he was discriminated against because of his race, adding that discrimination based on ancestry and ethnic characteristics can also be the basis for a section 1981 claim. Pl.'s Response and Opp.'n to Def.'s Mot. to Partially Dismiss Am. Compl. ("Pl.'s Response") at 3-4.

The Supreme Court recognized in St. Francis College v. Al-Khazraji that section 1981 prohibits racial discrimination and protects classes of persons from "intentional discrimination solely because of [] ancestry or ethnic characteristics." 481 U.S. 604, 613 (1987). Section 1981 does not prohibit national origin discrimination per se, and a plaintiff must demonstrate that the discrimination is based on "ancestry or ethnic characteristics," not on his country of origin, in order to prevail in a section 1981 suit. See Amiri v. Hilton Washington Hotel, 360 F. Supp. 2d 38, 42-43 (D.D.C. 2003) (dismissing section 1981 claim when plaintiff did not base his complaint on racial or ethnic characteristics but rather based it solely on the fact that he was from Afghanistan); Kidane v. Northwest Airlines, Inc., 41 F. Supp. 2d 12, 12 (D.D.C. 1999)

(finding that discrimination claims based on plaintiff's national origin, Ethiopia, were not cognizable under section 1981); Wesley v. Howard Univ., 3 F. Supp. 2d 1, 3 (D.D.C. 1998) (national origin discrimination claims can be raised under section 1981 only when based on "racial or ethnic characteristics associated with the national origin in question").

Even the most liberal reading of Ndondji's allegations, with all reasonable inferences drawn in his favor, confirms that he is alleging discrimination based on national origin, not race. Ndondji's factual allegations are devoted to discriminatory acts based on his national origin. He complains that individuals who were "not foreign nationals" did not receive the same treatment as "foreign nationals"; that complaints by "foreign nationals" were ignored by management; that InterPark supervisors made statements that "illustrated their bias against foreign nationals"; that he was terminated because of his "foreign nationality"; and that a "non-foreign national ('American')" took his position. Am. Compl. ΒΆΒΆ 17, 19, 20, 38, 59-60. Nearly all of Ndondji's claims allege that he was discriminated against based on his national origin, Angolan, and the fact that he was a "foreign national," not based on ...

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