Olatunji v. Dist. of Columbia

• Decision Date: 19 July 2013
• Docket Number: Civil No. 10–1693 (RCL).
• Citation: 958 F.Supp.2d 27
• Court: U.S. District Court — District of Columbia
• Parties: Samuel A. OLATUNJI, Plaintiff, v. DISTRICT OF COLUMBIA, Defendant.

958 F.Supp.2d 27

Samuel A. OLATUNJI, Plaintiff,

v.DISTRICT OF COLUMBIA, Defendant.

Civil No. 10–1693 (RCL).

United States District Court,

District of Columbia.

July 19, 2013.

James L. Kestell, Kestell & Associates, Falls Church, VA, for Plaintiff.

David A. Jackson, Juliane T. DeMarco, Office of the Attorney General, District of Columbia, Civil Litigation Division, Washington, DC, for Defendant.

MEMORANDUM OPINION

ROYCE C. LAMBERTH, District Judge.

Plaintiff Samuel A. Olatunji, a black male working for the District of Columbia Department of Transportation (“DDOT”), brought a two-count complaint against defendant District of Columbia alleging racial and sexual discrimination (Count I), and retaliation (Count II), in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. Complaint, Oct. 4, 2010, ECF No. 1. Plaintiff claims, inter alia, that the DDOT demoted him as retaliation for filing a complaint with the Equal Employment Opportunity Commission (“EEOC”). Compl. ¶¶ 7–17. Before the Court is the defendant's Motion for Summary Judgment, Mar. 15, 2012, ECF No. 12. Upon consideration of the motion, the plaintiff's Opposition, Apr. 16, 2012, ECF No. 13, the defendant's Reply thereto, Apr. 24, 2012, ECF No. 14, and the record herein, the Court will grant defendant's Motion for Summary Judgment.

I. BACKGROUND

Plaintiff Samuel Olatunji is a black male who was born and raised in Ghana, Africa. Compl. ¶ 7. He began working for the District of Columbia as a civil engineer in 1990. Id. During the period relevant to the Complaint, Olatunji worked as a Supervisory Civil Engineer and Project Manager in the DDOT Infrastructure Project Management Administration. See Def.'s Statement of Undisputed Material Facts ¶ 2 (“Def.'s SMF”), Mar. 15, 2012, ECF No. 12; Pl.'s Resp. to Def.'s SMF ¶ 2 (“Pl.'s SMF Resp.”), Apr. 16, 2012, ECF No. 13–2. In that role, Olatunji monitored the day to day operations of DDOT construction projects. See Def.'s SMF ¶ 3; Pl.'s SMF Resp. ¶ 3. Olatunji's immediate supervisor was Ali Shakeri, a male of Iranian descent. Compl. ¶ 10; Ex. 3 to Def.'s Mot. Summ. J.

In February 2008, Olatunji filed a Charge of Discrimination with the D.C. Office of Human Rights and the EEOC, in which he alleged discrimination, retaliation, and a hostile work environment. Def.'s SMF ¶ 4; Pl.'s SMF Resp. ¶ 4; Ex. 4 to Def.'s Mot. Summ. J. In that 2008 Charge, Olatunji alleged that Shakeri treated him differently than a similarly-situated colleague, an Iranian female. Ex. 4 to Def.'s Mot. Summ. J. He also claims he received poor performance evaluations as retaliation for filing a January 2007 internal EEO complaint, and was subjected to threats and demeaning comments that constituted a hostile work environment. Id. In March 2008, Olatunji and DDOT entered into a settlement agreement which ended the then-pending 2008 Charge. Def.'s SMF ¶ 5; Pl.'s SMF Resp. ¶ 5; Ex. 5 to Def.'s Mot. Summ. J.

In February 2009, Olatunji filed a second Charge of Discrimination with the EEOC. Def.'s SMF ¶¶ 6–7; Pl.'s SMF Resp. ¶¶ 6–7; Ex. 6 to Def.'s Mot. Summ. J. In this Charge, Olatunji alleged he suffered verbal abuse, reduction of job responsibilities, and denial of work assistance as a consequence of racial discrimination and retaliation. Ex. 6 to Def.'s Mot. Summ. J. The 2009 Charge also alleged that DDOT unjustly demoted Olatunji from a Supervisory Civil Engineer to a Civil Engineer as retaliation for the March 2008 settlement agreement. Id. On June 28, 2010, the EEOC issued a right-to-sue letter, allowing Olatunji to bring suit in federal court on the allegations contained in the 2009 Charge. Pl.'s SMF ¶ 7; Def.'s SMF Resp. ¶ 7; Ex. 7 to Def.'s Mot. Summ. J. On October 4, 2010, Olatunji filed a Complaint in the U.S. District Court for the District of Columbia alleging that the District of Columbia discriminated and retaliated against plaintiff in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. Compl., ECF No. 1.

II. LEGAL STANDARD

“The court shall grant summary judgment 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The mere existence of any factual dispute will not defeat summary judgment; “the requirement is that there be no genuine issue of material fact.” Anderson, 477 U.S. at 247–48, 106 S.Ct. 2505 (emphasis in original). A fact is material if, under the applicable law, it could affect the outcome of the case. Id. A dispute is genuine if the “evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. Because “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge,” the “evidence of the non-movant is to be believed,and all justifiable inferences are to be drawn in his favor.” Id. at 255, 106 S.Ct. 2505. A nonmoving party must establish more than “the existence of a scintilla of evidence” in support of its position. Id. at 252, 106 S.Ct. 2505. The inferences drawn from the evidence “must be reasonably probable and based on more than mere speculation.” Rogers Corp. v. E.P.A., 275 F.3d 1096, 1103 (D.C.Cir.2002) (citations omitted). The nonmoving party may not rely solely on allegations or conclusory statements. See Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999). The nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Id. If the evidence presented is “merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249–50, 106 S.Ct. 2505.

III. DISCUSSIONA. Plaintiff's Title VII Claims are Untimely, as Plaintiff Concedes

Plaintiff brought claims for employment discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2, 2000e–3, and the Civil Rights Act of 1866, 42 U.S.C. § 1981. Compl. ¶ 1. As plaintiff concedes, Pl.'s Opp'n 5 n. 1, his Title VII claims are untimely. Therefore, this Court must grant the defendant summary judgment as to the plaintiff's Title VII claims.

A party must file a Title VII suit in federal court within 90 days of receiving an EEOC right-to-sue letter. 42 U.S.C. § 2000e–5(f)(1). A court presumes a party receives a right-to-sue letter within three days of the letter's issuance. See Smith–Haynie v. District of Columbia, 155 F.3d 575, 578 n. 3 (D.C.Cir.1998). Thus, in the typical case a party has 93 days from the date the EEOC issues a letter to file suit in federal court. See Coleman v. Potomac Elec. Power Co., 310 F.Supp.2d 154, 158 (D.D.C.2004). In the instant case, the EEOC issued a right-to-sue letter on June 29, 2010. See Ex. 7 to Def.'s Mot. Summ. J. Applying the three-day rule, the Court would assume that plaintiff received the letter by July 2, 2010. Thus, Olatunji would have 90 days from July 2nd to bring suit—with the limitations period expiring on September 30, 2010.

Plaintiff brought this suit on October 4, 2010—four days after the limitations period ran. Plaintiff concedes this point: “The District appears to be correct that Plaintiff filed his suit outside of the 90 day window for Title VII. Plaintiff is therefore conceding that claim.” Pl.'s Opp'n 5 n. 1. Thus, Defendant is entitled to summary judgment on plaintiff's Title VII claims.

B. Plaintiff Has No Viable Claims Under 42 U.S.C. § 1981

While conceding the untimeliness of his Title VII claims, plaintiff argues that he has stated a claim under 42 U.S.C. § 1981. While neither of the plaintiff's claims state that they are brought under 42 U.S.C. § 1981¹, the opening paragraph of the Complaint states that the “matter is brought under [ Title VII] ... and the Civil Rights Act of 1866, as amended, 42 U.S.C. § 1981, to redress race (African) and sex (male) discrimination, and retaliation (prior protected activity).” Compl. ¶ 1. Since the defendant District of Columbia is a state actor, plaintiff cannot sue the District directly under Section 1981, but may only do so through the enforcement mechanism of 42 U.S.C. § 1983. Section 1983 claims require the plaintiff to be injured by some action taken pursuant to the official policy, practice, or custom of the defendant. Since plaintiff fails to allege any facts that would infer municipal liability, he has failed to state a viable claim. None of the exhibits or affidavits include facts or allegations which, if included in an amended complaint, would help plaintiff state a plausible claim. As there are no material facts in dispute and defendant is entitled to judgment as a matter of law, this Court will grant the District summary judgment on plaintiff's claims under § 1981 and/or § 1983.

1. Legal Standard under Section 1981

Section 1981 protects the rights of all persons to, inter alia, “make and enforce contracts.” 42 U.S.C. § 1981(a). The law defines the term “make and enforce contracts” as “including the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” 42 U.S.C. § 1981(b). Section 1981 can encompass employment discrimination and retaliation claims. CBOCS West, Inc. v. Humphries, 553 U.S. 442, 450–52, 128 S.Ct. 1951, 170 L.Ed.2d 864 (2008) (§ 1981 encompasses retaliation claims); Rivers v. Roadway Express, 511 U.S. 298, 302, 114 S.Ct. 1510, 128 L.Ed.2d 274 (1994) (Civil Rights Act of 1991 states that § 1981 reaches all phases of contractual relationship, including discriminatory contract terminations).

There is considerable overlap between Title VII and Section 1981. “Despite Title VII's range and its design as a comprehensive solution for the problem of invidious discrimination in employment, the aggrieved individual clearly is not deprived of other...