Olatunji v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
SAMUEL A. OLATUNJI, )
)
Plaintiff, )
)
v. ) Civil No. 10-1693 (RCL)
)
DISTRICT OF COLUMBIA )
)
Defendant. )
)
MEMORANDUM OPINION
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.
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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 (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 (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. A nonmoving party must establish more than “the existence of a scintilla
of evidence” in support of its position. Id. at 252. 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.
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III. DISCUSSION
A. 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-Hayne 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. § 1981While 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
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brought under 42 U.S.C. § 1981 1, 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 (2008) (§ 1981 encompasses
retaliation claims); Rivers v. Roadway Express, 511 U.S. 298, 302 (1994) (Civil Rights Act of
1991 states that § 1981 reaches all phases of contractual relationship, including discriminatory
contract terminations).
1
Claim I is titled, “Defendant Violated Title VII of Civil Rights Act Prohibiting Discrimination Based on Sex and
Race,” Compl. 4, ¶16, and Claim II is titled, “Defendant Violated Title VII of Civil Rights Act by Retaliating
Against Plaintiff for Prior EEO Complaint,” id. at 4, ¶17.
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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 remedies he possesses and
is not limited to Title VII in his search for relief.” Johnson v. Ry. Exp. Agency, Inc., 421 U.S.
454, 459 (1975). “Congress noted ‘that the remedies available to the individual under Title VII
are co-extensive with the indiv(i)dual’s [sic] right to sue under the provisions of the Civil Rights
Act of 1866, 42 U.S.C. § 1981, and that the two procedures augment each other and are not
mutually exclusive.’” Id. (quoting H.R. REP. NO. 92-238, at 19 (1971), reprinted in 1972
U.S.C.C.A.N. 2137, 2154).
Courts analyze Title VII and Section 1981 employment discrimination claims under
similar legal standards. “Under either Title VII or Section 1981, [the plaintiff] must demonstrate
by a preponderance of the evidence that the actions taken by the employer were ‘more likely than
not based on the consideration of impermissible factors’ such as race, ethnicity, or national
origin.” Pollard v. Quest Diagnostics, 610 F. Supp. 2d 1, 18 (D.D.C. 2009) (quoting Texas
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981)). Under this standard, the plaintiff
may either prove his claim with direct evidence of discrimination or he may indirectly prove
discrimination under the familiar burden-shifting analysis of McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973). The McDonnell Douglas burden-shifting framework applies
to employment discrimination claims, id.; retaliation claims, Carney v. American Univ., 151 F.3d
1090. 1094 (D.C. Cir. 1998); and claims brought pursuant to Section 1981, Carter v. George
Washington Univ., 387 F.3d 872, 878 (D.C. Cir. 2004).
Under the McDonnell Douglas framework, the plaintiff has “the initial burden of proving
by a preponderance of the evidence a prima facie case.” Pollard, 610 F. Supp. 2d at 18. If the
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plaintiff succeeds, “the burden shifts to the defendant to articulate some legitimate, non-
discriminatory or non-retaliatory reason justifying its conduct.” Id. If the defendant is
successful at this step, “the McDonnell Douglas framework—with its presumptions and
burdens—disappear[s], and the sole remaining issue [is] discrimination vel non,” Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142–43 (2000) (internal citations and quotation
marks omitted); or “retaliation vel non,” Pardo–Kronemann v. Donovan, 601 F.3d 599, 603–04
(D.C. Cir. 2010). In other words, after the employer has articulated a non-discriminatory or non-
retaliatory justification, the only issue is whether “based on all the evidence, a reasonable jury
could conclude that [the] proffered reason…was pretext for retaliation” or discrimination. Id.(internal citations and quotation marks omitted).
Nevertheless, “Section 1981 is not coextensive in its coverage with Title VII.” Johnson,
421 U.S. at 460. There are important differences. Congress made Title VII the exclusive
remedy for federal employment discrimination and retaliation claims, preempting Section 1981
and other remedies. Brown v. General Services Admin., 425 U.S. 820, 829 (1976). This does
not preclude the instant case, as “Congress did not similarly designate Title VII as the exclusive
remedy for state and local employees.” Hamilton v. District of Columbia, 720 F. Supp. 2d 102,
110 (D.D.C. 2010) (considering claims that District of Columbia violated rights conferred by §
1981 though acts of employment discrimination and retaliation). 2
The key difference is that the Supreme Court has held that Section 1981 does not itself
provide an independent remedy against state actors. Jett v. Dallas Indep. Sch. Dist., 491 U.S.
701, 733 (1989). In Jett, the Supreme Court noted Section 1981 did not explicitly create a
private right of action, and the Court is hesitant to imply rights of action “where Congress has
2
This case also held that when the defendant is a state actor such as the District of Columbia, violations of the
substantive rights conferred by § 1981 could only be redressed through the remedial scheme of 42 U.S.C. § 1983.
See Hamilton, 720 F. Supp. 2d at 110. This issue is discussed in more detail infra.
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established its own remedial scheme.” Id. at 732. After considering legislative history, the
Court stated that “Congress intended that the explicit remedial provisions of [42 U.S.C.] § 1983
be controlling in the context of damages actions brought against state actors alleging violation of
the rights declared in § 1981.” Id. Since a plaintiff may only enforce the rights conferred in §
1981 against a state actor via § 1983, the plaintiff must meet the requirements for municipal
liability stated in Monell v. New York City Dept. of Social Services, 436 U.S. 658, 691 (1978).
See Jett, 491 U.S. at 735–36 (“Thus to prevail on his claim for damages against the school
district, petitioner must show that the violation of his ‘right to make contracts’ protected by §
1981 was caused by a custom or policy within the meaning of Monell and subsequent cases.”).
Monell rejects a respondeat superior theory of municipal liability; the District cannot be
held liable simply because it employs a wrongdoer. 436 U.S. at 691. As Monell states:
[A] local government may not be sued under § 1983 for an injury inflicted solely
by its employees or agents. Instead, it is when execution of a government’s
policy or custom, whether made by its lawmakers or by those whose edicts or acts
may fairly be said to represent official policy, inflicts the injury that the
government as an entity is responsible under § 1983.
Id. at 694. The plaintiff must be injured by some “action [made] pursuant to official municipal
policy.” Id. at 691. “[M]unicipal liability should not be imposed when the municipality was not
itself at fault,” City of Oklahoma City v. Tuttle, 471 U.S. 808, 818 (1985), and plaintiff must
“show fault on the part of the city based on a course its policymakers consciously chose to
pursue,” Carter v. District of Columbia, 795 F.2d 116, 122 (D.C. Cir. 1986). Simply being a
“supervisor” does not make a District employee a “policymaker” for the purposes of Monell.
See, e.g., St. Louis v. Praprotnik, 485 U.S. 112, 126 (1988) (O’Connor, J., plurality opinion);
Triplett v. District of Columbia, 108 F.3d 1450, 1453 (D.C. Cir. 1997). Instead, the official must
have “final policymaking authority [under] state law,” Triplett, 108 F.3d at 1453—an issue
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which “is assessed by looking to local law.” Hamilton v. District of Columbia, 852 F. Supp. 2d
139, 150 (D.D.C. 2012) (finding immediate supervisors and Deputy Fire Chief were not final
policymakers in §§ 1981 and 1983 suit against the District for employment discrimination).
2. Plaintiff’s Untimeliness Under Title VII
Does Not Preclude His Section 1981 Claims
The plaintiff’s failure to exhaust administrative remedies or timely file under Title VII
does not necessarily preclude his claims under Section 1981. See Hamilton, 720 F. Supp. 2d at109–10. “[T]he remedies available under Title VII and under § 1981, although related,
and…directed to most of the same ends, are separate, distinct and independent.” Johnson, 421
U.S. at 461. As Judge Bates of this Court stated, “[b]ecause state employees are not required to
proceed through Title VII, they need not exhaust those administrative remedies prior to bringing
suit under §§ 1981 or 1983 when the rights asserted are…not conferred by Title VII.” Hamilton,
720 F. Supp. 2d at 109. This Court finds that logic equally applicable to this case. Since
plaintiff claims a violation of rights independently conferred by Section 1981, Title VII’s 90 day
limitations period does not apply and does not bar his claims under Section 1981.
3. Section 1981 Does Not Confer Plaintiff an Independent
Right of Action Against the District of Columbia
In his Opposition Brief, plaintiff speaks of Section 1981 and Title VII as if they were
virtually synonymous—he launches into a discussion of the merits of his retaliation claim is if it
were brought under Title VII. Pl.’s Opp’n 7–11. Such a discussion may have been appropriate if
he had sued a private party, as courts analyze retaliation claims brought under Title VII and
Section 1981 under the McDonnell Douglas framework. See Pollard, 610 F. Supp. 2d at 18–19.
However, the defendant here is not a private actor but the District of Columbia. While Title VII
does not provide the exclusive remedy against the District of Columbia for employment
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discrimination and retaliation, see Hamilton, 720 F. Supp. 2d at 110, “[v]iolation of the rights
guaranteed by § 1981 by state entities can be remedied exclusively through the cause of action
for damages created by § 1983,” id. at 114. “To prevail on a claim under § 1981 against the
District, therefore, a plaintiff must show that the violation of his ‘‘right to make contracts’
protected by § 1981 was caused by a custom or policy within the meaning of Monell and
subsequent cases.’” Id. (quoting Jett, 491 U.S. at 735–36).
Last year, Judge Bates of this Court considered whether Section 1981 conferred a private
right of action against the District of Columbia. Sledge v. District of Columbia, 869 F. Supp. 2d
140 (2012). In that case, the plaintiff argued that the Civil Rights Act of 1991, Pub. L. 102–166,
105 Stat. 1072., abrogated the Supreme Court’s ruling in Jett v. Dallas Independent School
District, 491 U.S. 701 (1989). As Judge Bates explained:
The Civil Rights Act of 1991 amended § 1981. In addition to adding a definition
of the phrase “make and enforce contracts,” 42 U.S.C. § 1981(b), the amendments
mandated that the rights protected by § 1981 are “protected against impairment by
nongovernmental discrimination and impairment under color of State law,” 42
U.S.C. § 1981(c). The question now presented is whether the 1991 amendments
abrogated the Court’s holding in Jett and created a separate cause of action under
§ 1981 against local government entities. Seven circuits have considered this
issue, with all but one holding that Congress did not create such a cause of action
by amending § 1981. Compare McGovern v. City of Philadelphia, 554 F.3d 114,
122 (3rd Cir. 2009) (“[W]e join five of our sister circuits in holding that no
implied right of action exists against state actors under 42 U.S.C. § 1981.”),
Arendale v. City of Memphis, 519 F.3d 587, 599 (6th Cir. 2008) (same), Bolden v.
City of Topeka, 441 F.3d 1129, 1137 (10th Cir. 2006) (same), Oden v. Oktibbeha
Cnty., 246 F.3d 458, 464 (5th Cir. 2001) (same), Butts v. Cnty. of Volusia, 222
F.3d 891, 894 (11th Cir. 2000) (same), and Dennis v. Cnty. of Fairfax, 55 F.3d
151, 156 n. 1 (4th Cir. 1995) (same), with Fed’n of African Am. Contractors v.
City of Oakland, 96 F.3d 1204, 1214 (9th Cir. 1996) (“[W]e conclude that the
amended 42 U.SC. § 1981 contains an implied cause of action against state actors,
thereby overturning Jett’s holding that 42 U.S.C. § 1983 provides the exclusive
remedy against state actors for the violation of rights under 42 U.S.C. § 1981.”).
Sledge, 869 F. Supp. 2d at 143–44. Judge Bates then explained that the outlying Ninth Circuit
opinion relied on an interpretation of Cort v. Ash, 422 U.S. 66 (1975) that has since been
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strongly disfavored by the Supreme Court, Alexander v. Sandoval, 532 U.S. 275 286–87 (2001),
and the D.C Circuit, McKesson Corp. v. Islamic Republic of Iran, 672 F.3d 1066, 1078 (D.C.
Cir. 2012). Sledge, 869 F. Supp. 2d at 144. Thus, Judge Bates found that “in the 1991
amendments, Congress neither explicitly created a remedy against state actors in addition to §
1983, nor expressed its intent to overrule Jett.” Id. at 145. This Court agrees with Judge Bates’
approach, and holds that plaintiff cannot maintain an independent cause of action under § 1981
against the District of Columbia.
4. Plaintiff Alleges No Facts Whatsoever That Would
Support Municipal Liability Under Monell and its Progeny
Plaintiff cannot sue the District for employment discrimination and retaliation through a
private right of action conferred by § 1981. Instead, he may only pursue alleged violations of his
substantive § 1981 rights through the remedial scheme of § 1983. As such, the plaintiff must
allege that his injuries were caused by a municipal custom or practice within the meaning of
Monell, 436 U.S. 658, and its progeny. See, e.g., Jett, 491 U.S. at 735–36; Sledge, 869 F. Supp.
2d at 145; Hamilton, 720 F. Supp. 2d at 110. He may not rely on a respondeat superior theory of
municipal liability, and may only sue the District if it discriminated or retaliated against him
pursuant to official District policy. See Harris v. District of Columbia, 696 F. Supp. 2d 123, 129
(D.D.C. 2010). In order to establish liability, the District must have acted pursuant to a “policy
statement, ordinance, regulation, or decision officially promulgated by” the District, Monell, 436
U.S. at 690, or a practice “so permanent and well settled as to constitute a ‘custom or usage’ with
force of law,” id. at 694.
Nowhere in the Complaint does plaintiff mention any official policy or custom of the
District. Plaintiff mentions § 1981 once in the opening paragraph, Compl. ¶ 1, and nowhere else.
Plaintiff does not mention § 1983 anywhere in his Complaint or Opposition Brief, or even
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acknowledge the standard for municipal liability under Monell. Plaintiff’s Complaint reads like
a standard Title VII complaint, with a passing reference made to § 1981. Plaintiff’s Opposition
Brief reads like a standard Title VII brief, and ignores completely whether plaintiff may sue the
District directly under § 1981.
“[A] section 1983 complaint alleging municipal liability must include some factual basis
for the allegation of a municipal policy or custom.” Atchinson v. District of Columbia, 73 F.3d
418, 422 (D.C. Cir. 1966). In this case, plaintiff “has failed to include any allegations
whatsoever demonstrating how the individual actions cited in his Complaint constitute ‘the
official policy’ of the District of Columbia.” Harris, 696 F. Supp. 2d at 129. He has even failed
to include “naked assertion[s]” that the District acted pursuant to official policy. Ashcroft, 556 at
678; Twombly, 550 U.S. at 557. Plaintiff has completely failed to state a claim against the
District of Columbia because he cannot sue directly under § 1981, and has failed to allege any
facts regarding District policy or custom as required by § 1983. Looking beyond the Complaint,
nothing in the public record or the record of this case plausibly infers municipal liability.
5. Defendant is Entitled to Summary Judgment
Plaintiff’s Complaint fails to state a claim upon which relief can be granted under either
42 U.S.C. § 1981 or § 1983. Plaintiff’s claims would fail even under the Rule 12(b)(6) standard,
which is highly deferential to the facts alleged in the non-moving party’s complaint. See, e.g.,
Atherton v. District of Columbia, 567 F.3d 672, 681 (D.C. Cir. 2009); Kowal v. MCI Commc’ns
Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). In this case, defendant moved for summary
judgment under Rule 56, and this Court thinks it is appropriate to resolve the § 1981 claims
under Rule 56. There has been a full and fair opportunity for discovery in this matter. See
Scheduling Order, Feb. 22, 2011, ECF No. 5 (setting three month discovery period; establishing
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deadline for dispositive motions five days after close of discovery). Plaintiff has not requested
any additional discovery to respond to the defendant’s Motion for Summary Judgment. FED. R.
CIV. P. 56(d). 3 Since plaintiff’s Section 1981 claims are facially and legally implausible,
defendant can meet its burden of “show[ing] 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), rather
easily. See Def.’s Mot. Summ. J. 3 n.1; Def.’s Reply 2–5. 4
The Court has looked beyond the four corners of plaintiff’s Complaint to see if anything
could infer municipal liability. Cf. Nat’l Postal Prof’l Nurses v. U.S. Postal Serv., 461 F. Supp.
2d 24, 28 (D.D.C. 2006). The Court examined the exhibits, declarations, and affidavits
submitted by both parties in the light most favorable to the plaintiff to determine if anything in
the record could infer that plaintiff was injured pursuant to an official policy. After looking at
the record, this is a typical employment discrimination and retaliation suit—properly addressed,
3
While defendant did not devote any substantial portion of its Motion for Summary Judgment to plaintiff’s § 1981
claims, the District did object to the § 1981 claims in its summary judgment motion. Def.’s Mot. Summ. J. 3 n.1.
Furthermore, plaintiff cannot claim (nor does he) any “surprise” that defendant objected to his § 1981 claims, as
plaintiff premises his opposition on the viability of those § 1981 claims. See Pl.’s Opp’n 5–7.
4
While courts are not obliged to “consider cursory arguments made only in a footnote,” Hutchins v. District of
Columbia, 188 F.3d 531, 539 n.3 (D.C. Cir. 1999), that is not a hard and fast rule. In this case, where plaintiff gave
very little attention to Section 1981 in his Complaint, it was not improper for defendant to object to plaintiff’s
§ 1981 claims in a footnote in the summary judgment motion.
The defendant’s reply brief develops the §1981 argument in much greater detail. Nevertheless, defendant had raised
the Section 1981 issue in its opening brief. Def.’s Mot. Summ. J. 3 n.1. Furthermore, defendant’s reply responded
directly to the plaintiff’s lengthy discussion, presented in the opposition brief, of Section 1981. Pl.’s Opp’n 5–11.
Up to this point, Section 1981 was cosigned to a passing reference in plaintiff’s Complaint and did not seem
particularly central.
The doctrine that courts should not consider arguments made for the first time in a reply brief is a prudential
doctrine. See Natural Res. Def. Council, Inc. v. E.P.A., 25 F.3d 1063, 1079 (D.C. Cir. 1994) (Wald, J., dissenting in
part and concurring in part). The basis for that rule is that “allowing novel arguments to be introduced so late would
be ‘manifestly unfair to the appellee who, under our rules, has no opportunity for a written response,’ and would
‘risk the possibility of an improvident or ill-advised opinion.’” Id. (quoting Herbert v. Nat’l Academy of Sciences,
974 F.2d 192, 196 (D.C. Cir. 1992)) (internal quotation marks and citation omitted).
In this case, there is no risk of “sandbagging” the plaintiff, Corson & Gruman Co. v. NLRB, 899 F.2d 47, 50 n.4
(D.C. Cir. 1990), when plaintiff himself made Section 1981 the focus of his opposition. Defendant is not truly
raising issues “for the first time” in its reply brief. The District is expounding on an earlier position, developed
further in direct response to the plaintiff’s opposition. The prudential factors in Herbert do not apply to this case.
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when the District of Columbia is the defendant, though Title VII. There is absolutely nothing in
the record that could plausibly infer municipal liability under Section 1983. Since the plaintiff’s
claims under §§ 1981 and 1983 are legally infirm under any plausible reading of the record, there
are no material facts in dispute and defendant is entitled to summary judgment.
IV. CONCLUSION
As plaintiff concedes, he failed to bring his Title VII claims in federal court within 90
days of receiving the EEOC right-to-sue letter. As such, plaintiff abandoned his Title VII claims
and instead relied on the Civil Rights Act of 1866, as amended. 42 U.S.C. § 1981. While
Section 1981 may function similarly to Title VII vis-à-vis private employers, the defendant here
is a state actor. The Supreme Court held in Jett v. Dallas Independent School District, 491 U.S.
701 (1989) that Section 1981 infers no private right of action against state actors such as the
District of Columbia. Instead, 42 U.S.C. § 1983 provides the exclusive remedy for damages
against a state actor for a violation of the rights conferred by § 1981. Since plaintiff must pursue
his § 1981 substantive claims through the § 1983 remedial mechanism, the plaintiff must plead
and prove that he was injured pursuant to some official policy, custom, or usage of the District of
Columbia. Nothing in the Complaint or record plausibly provides any basis for municipal
liability. Therefore, defendant is entitled to summary judgment on all counts and on all claims.
A separate Order consistent with this Memorandum Opinion shall issue this date.
Signed by Royce C. Lamberth, United States District Judge, on July 19, 2013.
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