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Nessar v. District of Columbia

United States District Court, District Circuit

August 27, 2013

ALI NESSAR, Plaintiff,



For almost twenty years, Plaintiff Ali Nessar was employed as a correctional officer with the District of Columbia Department of Corrections. In October 2008, however, he claims that he was forced to resign as a result of discrimination based on his race, religion, and national origin. Having filed an administrative complaint and having been issued a right-to-sue letter, Plaintiff filed this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., alleging disparate treatment (Count I), hostile work environment (Count II), and retaliation (Count III). The District now moves for summary judgment, challenging both the timeliness of the suit and its merits. Because the Court finds that the non-promotion claims in Count I are untimely and that Plaintiff has failed to raise a genuine issue of material fact as to any of his remaining claims, it will grant Defendant’s Motion.

I. Background

For the most part, the evidence in this case is undisputed. As Nessar is the nonmoving party, the Court will, in discussing the state of the record, credit his evidence and draw justifiable inferences in his favor.

Plaintiff began his lengthy career as a correctional officer in the District of Columbia when he was hired by the Department of Corrections in March of 1988. See Opp., Exh. 1 (10/25/12 Deposition of Ali Nessar (Nessar Dep. I)) at 15:7-17. Over the next ten years, Nessar passed numerous tests and was promoted to Corporal, Sergeant, and ultimately Lieutenant. See id. at 17:6-18:12. In 2001, however, he was released from his position in what the District claimed was a reduction in force. See id. at 25:11-19. Nessar was the only employee with the rank of Lieutenant who was released during the reduction, and other employees with similar rank who had been at the Department for less time remained. Nessar filed a lawsuit in this District in 2003 stemming from the discharge, which was later dismissed for want of prosecution. See id. at 26:1-13; Opp., Exh. 3 (11/30/12 Deposition of Ali Nessar (Nessar Dep. II)) at 6:5-9; Opp., Exh. 2 (Pl.’s Response to Interrogatories), ¶ 9. Plaintiff was re-hired by the District in 2003 and remained at the rank of Lieutenant until he resigned in 2008. See Nessar Dep. I at 34:3-6, 18:15-19:14; Nessar Dep. II at 6:11-12.

During both periods of employment with the District, Nessar claims that he was subjected to discrimination on the basis of his race (non-black), religion (Muslim), and national origin (Afghani). See Nessar Dep. II at 5:1-9, 6:13-17. This discrimination, he contends, grew worse following the terrorist attacks of September 11, 2001. See Nessar Dep. I at 79:11-22. From 2003 to 2008, Nessar contends he was passed over for numerous promotions that ultimately went to less-qualified employees who were black, Christian, and native-born. See Nessar Dep. II at 10:4-12:17. The specifics of what these promotions were and when they were available will be discussed in greater detail below. See Section III.A.1, infra.

In addition to being passed over for promotions, Nessar maintains that:

• Supervisors “would attempt to find false reasons to reprimand [Nessar] and [he] was verbally abused with threats to terminate [his] employment, ” see Pl.’s Resp. to Interrogs. at 6;
• He was “made to feel very uncomfortable and unwanted, ” see id.;
• He “was assigned to more difficult zones (special handling units), which [he] often had to work alone to supervise . . . while other people in the same positions would often receive additional help, ” see id.;
• He was “ignored” and “treat[ed] . . . badly, ” see id. at 7; and
• He was “talked to by others, even if the actual words were not threats or harassment, the tone conveyed something discriminatory.”

See id. at 8.

Two events in October 2008 punctuate the ongoing abuses Nessar experienced. First, while speaking to his superior (and friend) Captain Murray Jones, Nessar complained that the Department “give[s] their own relatives and friends in the same race and culture and color and nationality [promotions]. I don’t think I don’t have no future in this department.” See Nessar Dep. II at 50:15-18; see also id. at 34:14-17. Several minutes later, Jones passed along this comment to Captain Nora Talley, and “both of them laughed.” See id. at 51:2. Nessar understood their laughter as an acknowledgment by his superiors that he had no future there. See id. at 51:1-3. Second, later that month Nessar’s supervisors threatened to fire him for refusing to sign an incident report related to an issue with an inmate. See Nessar Dep. I at 28:10-32:15; Nessar Dep. II at 25:10-27:13. According to Nessar, his supervisors concocted this dispute as part of a plan to oust him from the Department. See id. As a result of these incidents, Nessar tendered his resignation, effective October 29, 2008. See Opp., Exh. 5 (Resignation Letter).

On April 24, 2009, Nessar filed a charge of discrimination with the D.C. Office of Human Rights, which was cross-filed with the Equal Employment Opportunity Commission. See Opp., Exh. 4 (Charge of Discrimination). The Charge alleged that he had “been subjected to a disparate treatment and retaliated against on the bases of race (Asian), religion (Muslim) and national origin (‘Persian’)” from June 30 through November 29, 2008. See id. at 1. He received a right-to-sue letter on January 24, 2012, and subsequently filed this suit on April 20. See Opp., Exh. 6 (Right-to-Sue Letter).

II. Legal Standard

Summary judgment may 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion” by “citing to particular parts of materials in the record” or “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).

When a motion for summary judgment is under consideration, “[t]he evidence of the non-movant[s] is to be believed, and all justifiable inferences are to be drawn in [their] favor.” Liberty Lobby, 477 U.S. at 255; see also Mastro v. PEPCO, 447 F.3d 843, 850 (D.C. Cir. 2006); Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc). On a motion for summary judgment, the Court must “eschew making credibility determinations or weighing the evidence.” Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007).

The nonmoving party’s opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits, declarations, or other competent evidence, setting forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The nonmovant is required to provide evidence that would permit a reasonable jury to find in its favor. Laningham v. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the nonmovant’s evidence is ...

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