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Mesafint Beyene v. Hilton Hotels Corporation

September 30, 2011

MESAFINT BEYENE, PLAINTIFF,
v.
HILTON HOTELS CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge

MEMORANDUM OPINION & ORDER

Plaintiff Mesafint Beyene brings this action against his employer, Hilton Hotels Corporation ("Hilton"), asserting claims of discrimination, retaliation, and harassment in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., intentional infliction of emotional distress, negligent hiring and retention, and invasion of privacy. Before the Court is Hilton's motion for summary judgment [#25]. Upon consideration of the motion, the opposition thereto, and the record of the case, the Court concludes that the motion should be granted in part and denied in part.

I. BACKGROUND

Beyene has been employed by Hilton since 1999, where he is a food server in the room service department at the Hilton Washington. He is a native of Ethiopia and a member of the Ethiopian Orthodox Tewahido Religion Church.

A. Interactions with Chowdhury and Salah

Beyene's case centers primarily on his interactions with two co-workers, Jaman Chowdhury and Yazan Salah. In approximately May 2007, Beyene reported to the U.S. Secret Service, the Federal Bureau of Investigation, and the Security Director at the Hilton Washington that he had heard Chowdhury and Salah threaten to kill then-President George W. Bush as well as make comments "favoring terrorist organizations, against the Jew [sic], denouncing Christianity and the West." Pl.'s Mem. of Law in Opp'n to Def.'s Mot. for Summ. J. ("Pl.'s Opp'n"), Ex. 3 (Decl. of Mesafint Beyene (Nov. 22, 2010)) ("Beyene Decl.") ¶ 16; see also Def.'s Mot. for Summ. J. ("Def.'s Mot."), Ex. A (Dep. of Mesafint Beyene (July 1, 2009)) ("Beyene First Dep.") at 50, 63. The Hilton Washington Security Department investigated Beyene's report about Chowdhury and Salah but was unable to substantiate Beyene's allegations. Def.'s Mot., Ex. G (Decl. of Ahmed Niazi, Director of Security, Hilton Washington (Oct. 28, 2010)) ¶¶ 4, 6.

According to Beyene, Chowdhury and Salah became aware that Beyene had made this report, and began to threaten and harass him. Beyene First Dep. at 55--56, 76; Def.'s Mot, Ex. B (Dep. of Mesafint Beyene (Sept. 28, 2010)) ("Beyene Second Dep.") at 76. These threats allegedly included threats on his life, such as threats to cut his throat and send his head to Africa. See Beyene Decl. ¶ 14; Def.'s Mot., Beyene Second Dep. at 120. He also avers that Chowdhury and Salah harassed him when they saw him reading the Bible in the workplace. Beyene Decl. ¶ 10. Beyene complained about Chowdhury and Salah's threatening and harassing conduct to Hilton management, but the harassment allegedly persisted for almost three years. Def.'s Mot., Beyene Second Dep. at 76.

B. Hilton's Response

As a result of Beyene's complaints, the Human Resources Department at the Hilton Washington launched an investigation into Chowdhury and Salah's conduct toward Beyene. The investigation included, at least, interviews of Beyene, Chowdhury, Salah, and two other potential witnesses, Hassan Boudieh and Omar Farouk. Def.'s Mot., Ex. E (Decl. of Atlabachew Aklilu (Oct. 29, 2010)) ("Aklilu Decl.") ¶¶ 3--5; Beyene Second Dep. at 87; Def.'s Mot., Ex. C (Decl. of Patricia Buckley (Oct. 28, 2010)) ("Buckley Decl.") ¶¶ 7--9; Def.'s Mot., Ex. H (Dep. of Patricia Buckley (Aug. 9, 2010)) ("Buckley Dep.") at 13--14.*fn1 Based on these interviews, Hilton was unable to corroborate Beyene's complaints. Aklilu Decl. ¶¶ 3--5; Def.'s Mot., Ex. D (Dep. of Atlabachew Aklilu (Aug. 16, 2010)) ("Aklilu Dep.") at 11; Def.'s Mot., Beyene Second Dep. at 25; Buckley Decl. ¶¶ 9, 11.

Despite Beyene's complaints about Chowdhury and Salah, Hilton kept Beyene on the same work shifts as Chowdhury and Salah, where they shared common work areas. Pl.'s Mot., Aklilu Dep. at 27. Further, Hilton denied Beyene's request to transfer to a different department. Pl.'s Opp'n, Beyene Second Dep. at 166.

Following his complaints about Chowdhury and Salah, Beyene avers that Hilton also engaged in retaliatory behavior, including causing him to receive two unjustified "write-ups." Beyene First Dep. at 89--90.*fn2 Additionally, Beyene alleges that Hilton gave him a different percentage of gratuities than was given to other room service servers. Beyene Decl. ¶ 22; Pl.'s Opp'n, Beyene Second Dep. at 71--72.

C. Sunday Work Schedule

After he was hired, Beyene informed Hilton that, pursuant to his religious beliefs, he had to attend church on Sundays. Beyene Decl. ¶ 8; Pl.'s Opp'n, Beyene Second Dep. at 39--40, 46; see also Pl.'s Opp'n, Aklilu Dep. at 27--28. He requested that Hilton not require him to work on Sundays, see Beyene Decl. ¶ 8; Pl.'s Opp'n, Beyene Second Dep. at 155, and provided Hilton with letters from the leader of his church asking that he be permitted to attend church on Sundays. Pl.'s Opp'n, Ex. 2 (Letters from Reverend Dr. Amare Kassaye, Head of the Church, Ethiopian Orthodox Tewahido Religion Church). According to Beyene, Hilton did not agree to this request and permitted him to take Sundays off only by using his Voluntary Days Off, thereby forcing him to forgo a paycheck for that day. Beyene Decl. ¶ 9; Pl.'s Opp'n, Beyene Second Dep. at 39--40.

II. LEGAL STANDARD

A motion for summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). A material fact is one that "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant must support its factual positions by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . , admissions, interrogatory answers, or other materials." FED. R. CIV. P. 56(c)(1)(A); see Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

If the moving party meets its burden, the non-moving party must then establish that a genuine dispute as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). To meet its burden, the non-moving party must show that "the evidence is such that a reasonable jury could return a verdict" in its favor. Anderson, 477 U.S. at 248. Such evidence must consist of more than mere unsupported allegations or denials and must set forth specific facts showing that there is a genuine dispute for trial. See FED. R. CIV. P. 56(c)(1), (e); Celotex, 477 U.S. at 322 n.3. If the evidence is "merely colorable" or "not significantly probative," summary judgment may be granted. Anderson, 477 U.S. at 249--50.

III. ANALYSIS

A. Title VII Claims

Beyene's amended complaint does not identify discrete claims under Title VII; instead, it lumps all of his allegations regarding Title VII under the heading "Count One (Employment Discrimination)." See Am. Compl. at 1. The Court reads Beyene's amended complaint as asserting the following violations of Title VII: (1) religious discrimination related to Hilton's scheduling Beyene to work on Sundays, id. ¶ 7; (2) national origin discrimination based on Hilton's practice of paying Beyene a lower percentage of gratuities than other employees, id. ¶ 13; Beyene Decl. ¶ 22; (3) the creation of a hostile work environment based on Beyene's religion and/or national origin, Am. Compl. ¶ 11; and (4) retaliation, id. ¶¶ 5, 9--12. The Court will first address Beyene's scheduling and payment claims and then turn to Beyene's hostile work environment and retaliation claims.

1. Unexhausted Claims

Under Title VII, a plaintiff must timely exhaust his administrative remedies before filing suit in federal court. Payne v. Salazar, 619 F.3d 56, 65 (D.C. Cir. 2010). To do so, a claimant must first file an administrative charge; only the claims contained in the charge or those that are "'like or reasonably related to the allegations of the charge'" can be raised in a Title VII lawsuit. Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995) (quoting Cheek v. W. & S. Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994)). "At a minimum, the Title VII claims must arise from 'the administrative investigation that can reasonably be expected to follow the charge of discrimination.'" Id. (quoting Chisholm v. USPS, 665 F.2d 482, 491 (4th Cir. 1981)). "A court cannot allow liberal interpretation of an administrative charge to permit a litigant to bypass the Title VII administrative process." Id.

Hilton contends that Beyene has failed to exhaust his administrative remedies with regards to his scheduling and pay disparity claims. The Court agrees. Beyene's signed Equal Employment Opportunity Commission ("EEOC") Charge alleges that Beyene's co-workers and Hilton management harassed him following Beyene's report of his co-workers' allegedly suspicious behavior. See Def.'s Mot., Beyene Second Dep. Attach. ("EEOC Charge").*fn3 The Charge makes no mention of any scheduling or pay disparity concerns.*fn4 Because Beyene's scheduling and pay disparity claims are not at all related to the harassment alleged in his EEOC Charge, the allegations in the Charge are not sufficient to administratively exhaust these claims. See, e.g., Lyles v. District of Columbia, 2011 WL 1428256, at *7--8 (D.D.C. April 14, 2011) (finding that certain of the plaintiff's claims of retaliation were not reasonably related to the EEO charge where the alleged adverse actions were not "mention[ed]" in the EEO charge and were "distinct and separate" from the acts alleged in the charge).

Beyene does not contest this conclusion; instead, he asserts that he did in fact raise the scheduling and pay disparity issues with an EEOC staff member when he filed his Charge, but because there was no Amharic interpreter present,*fn5 he signed the Charge without knowing that the EEOC staff member had not included those issues. Pl.'s Opp'n at 17. As evidence that he informed the EEOC staff member of those issues, Beyene points to his own deposition testimony:

Q: And you testified -- earlier, you mentioned about religious discrimination when you talked to the people at the EEOC. Is that correct?

A: I have told her many things.

Pl.'s Opp'n, Beyene Second Dep. at 155; see also Beyene Decl. ¶ 25 ("I informed the staff that interviewed me all the information about threats and harassment based on religion, national origin and also retaliation.").

Because "a plaintiff has an opportunity to review his charge prior to signing it, courts are reluctant to excuse exhaustion on the grounds that the EEOC investigator failed to include certain information in the charge." Marcelus v. Corr. Corp. of Am./Corr. Treatment Facility, 540 F. Supp. 2d 231, 236 (D.D.C. 2008) (holding that the plaintiff had failed to exhaust despite the plaintiff's assertion that an EEOC investigator incorrectly told him that his claims of retaliation were included in his EEOC Charge). Beyene's testimony is far too vague to overcome this judicial reluctance.*fn6 His statement that "I have told her many things" is not sufficient to create a genuine dispute as to whether he complained to the EEOC staff member about being required to work on Sundays and/or his belief that he was paid a lower percentage of gratuities than other room service servers based on his national origin. Cf. Beyene First Dep. at 116 ("Q: Earlier on when you talked about filing the charge . . . all that stuff that's in there was related to this national security issue. That's why you were filing it, right? A: Yes.").

Furthermore, Beyene's EEOC Intake Questionnaire undercuts Beyene's contention that he complained of these scheduling and pay disparity issues to the EEOC. The Questionnaire, which appears to have been filled out by Beyene, contains no allegations related to these concerns. To the contrary, he writes only "I was harrassed [sic] because I report very important information to police. It was about national security." ...


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