The opinion of the court was delivered by: Robert L. Wilkins United States District Judge
SUMMARY OPINION AND ORDER; NOT INTENDED FOR PUBLICATION
This matter is before the Court on Defendants' Motion for Summary Judgment (Docket No. 12). Plaintiff Jaman Chowdhury has asserted four causes of action against Defendants. Against Defendant Hilton Hotels Corporation, Plaintiff asserts: employment discrimination in violation of 42 U.S.C. § 1981 (Count I) and negligent supervision (Count IV). Against all Defendants, Plaintiff asserts violations of the D.C. Human Rights Act ("DCHRA") (Count II) and common law invasion of privacy (Count III).
For the following reasons, Defendants' Motion is DENIED as to Count I, GRANTED in part and DENIED in part as to Count II, and GRANTED as to Counts III and IV. For purposes of this ruling, the Court will assume that the reader is familiar with the factual assertions and arguments made by the parties, and will not recite those again here.
Summary judgment is appropriate when the moving party demonstrates 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. See Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009) (citing Fed. R. Civ. P. 56(c) and Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986)). A genuine issue of material fact exists if the evidence "is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. A party, however, must provide more than "a scintilla of evidence" in support of its position; the quantum of evidence must be such that a jury could reasonably find for the moving party. Id. at 252.
B.Count I-Section 1981 promotion discrimination
Defendant Hilton argues that it is entitled to summary judgment on Count I because Plaintiff bases this claim solely on national origin discrimination, and "[c]laims based on the place or nation of the plaintiff's origin are not covered" by 42 U.S.C. § 1981. Mem. at 13. Hilton relies solely on Plaintiff's deposition testimony, in which Plaintiff-in response to a question posed by Defendants' counsel-answered that his discrimination complaint was based on the fact that he was foreign-born. Plaintiff responds that his claim is based on the "racial and ethnic characteristics of his national origin." Opp. at 4. Plaintiff relies on his Complaint, the record, and a declaration that Plaintiff submitted (over Defendants' objection) for the first time with his Opposition.
The Court agrees with Defendants that, ordinarily, a party cannot
submit a declaration after close of discovery and in opposition to a
motion for summary judgment that contradicts its deposition testimony.
Plaintiff's response to a few leading questions during his deposition
that purported to summarize the basis of his claims is not, however,
dispositive on the issue of the basis of his discrimination complaint.
Plaintiff was never asked by defense counsel during the deposition if
he also felt that he was discriminated against because of race. Thus,
Plaintiff's declaration does not squarely contradict his deposition
testimony. Moreover, Plaintiff did allege in his Complaint that he had
been discriminated against due to the "race, color and ethnic
characteristics associated with his national origin . . . ." Complaint
¶ 46. He also alleged that he
is a South
Asian man of East Indian and Bangladeshi descent, who was
discriminated against because of race. Complaint ¶¶ 5, 12.
Plaintiff can certainly rely upon indirect evidence of discrimination to support his Section 1981 discrimination claim, and the circumstances of the FBI tip and the harassment (accusations of terrorist activity) that allegedly followed is sufficient evidence to raise a question of fact as to whether Plaintiff was discriminated against due to his ethnicity. As the Supreme Court stated in Saint Francis College v. Al-Khazraji, 481 U.S. 604, 613 (1987):
Based on the history of § 1981, we have little trouble in concluding that Congress intended to protect from discrimination identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics. Such discrimination is racial discrimination that Congress intended § 1981 to forbid, whether or not it would be classified as racial in terms of modern scientific theory. The Court of Appeals was thus quite right in holding that § 1981, at a minimum, reaches discrimination against an individual because he or she is genetically part of an ethnically and physiognomically distinctive sub-grouping of homo sapiens. It is clear from our holding, however, that a distinctive physiognomy is not essential to qualify for § 1981 protection. If respondent on remand can prove that he was subjected to intentional discrimination based on the fact that he was born an Arab, rather than solely on the place or nation of his origin, or his religion, he will have made out a case under § 1981.
Id. (internal quotation marks and citations omitted). Thus, though Plaintiff's evidence on this claim is somewhat weak, there is enough evidence to allow this claim to go to a jury. The ...