Ndondji v. Interpark, Inc.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
N’SAMBA NDONDJI,1
Plaintiff,
v. Civil Action No. 09-02457 (JDB)
INTERPARK INC.,
INTERPARK HOLDINGS, INC.
Defendants.
MEMORANDUM OPINION
Plaintiff N’samba Ndondji brings this action against his former employer, InterPark
Incorporated, and its parent company, InterPark Holdings Incorporated2 (“collectively
InterPark”), asserting claims of discrimination and retaliation in violation of 42 U.S.C. § 1981,
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and the District
of Columbia Human Rights Act (“DCHRA”), D.C. Code § 2-1401.01 et seq. Now before the
Court is InterPark’s motion to partially dismiss the amended complaint. For the reasons
discussed below, the Court will grant in part and deny in part InterPark’s motion.
BACKGROUND
Ndondji, a black male from Angola, started working on July 28, 1988, as a lobby
attendant for InterPark at the Willard Hotel. Am. Compl. ¶¶ 1-2. During his employment,
1
Ndondji’s name was originally misspelled in the complaint but was corrected in the amended complaint.
2
InterPark argues in a footnote to its filings that InterPark Holdings Inc., the parent company of InterPark
Inc., is not a proper defendant in this case because (1) the parent company did not employ Ndondji, and (2) the
parent company was not properly served with a summons. InterPark Holdings Inc. should file a motion if it seeks to
be dismissed on this basis.
-1-
InterPark transferred him to several different facilities to work as a parking attendant and then
later as an assistant manager. Id. He completed courses for customer service and was
recognized as “employee of the month” several times. Id. ¶¶ 7-8.
As a result of his work, Ndondji claims that he was transferred to assignments “where
others would not go” and “where the company was most busy.” Id. ¶ 9. According to Ndondji,
he would improve the parking situation at each location but received “little or no [pay]
increases” for his efforts. Id. Sometime in 2004, Ndondji was transferred to the 1900 19th
Street N.W. location, which he alleges was one of the “busiest” locations and where some
parking attendants3 caused accidents. Id. ¶ 10. “No one else was interested in taking this
location.” Id. Ndondji alleges that he “immediately improved all areas of operation at this
location,” id. ¶ 11, and focused on improving revenue and decreasing the number of accidents,
id. ¶ 12. Ndondji attempted to improve the performance of attendants by “testing” each one to
determine if they could perform their jobs. Id. ¶ 14. Many employees failed his test, but
management insisted that he continue working with them and “resisted” his efforts to improve
the location. Id.Although he fails to specify the timing of the alleged discrimination, Ndondji contends
that management placed him in the “worst” and “most difficult locations” and continued to
impose conditions that prevented him from successfully performing his job. Id. ¶¶ 33-34. He
was ordered to “refrain from putting up a ‘Full’ sign even when there were no safe [parking]
spaces available,” id. ¶ 13, and was forced to “overpark” to increase revenue, even though
overparking could lead to more accidents, id. ¶ 36.
3
Ndondji appears to use “attendants” and “assistants” interchangeably throughout the amended complaint.
To be consistent, the Court will use “attendants.”
-2-
Ndondji also claims that he received “very little support with manpower.” Id. ¶¶ 14-15,
34. Management allegedly failed to provide him with competent attendants and send
replacements when attendants failed to show up or called in sick. Id. ¶ 15. Unlike other workers
who were “similarly situated” and “not Black or of Angolan descent,” he was forced to work
without a reasonable number of attendants and was not allowed to choose the attendants assigned
to his area. Id. ¶ 32a.
Sometime in the beginning of 2006, Ndondji claims that garage and area managers
requested a meeting with corporate human resources department representatives from the
Chicago office to complain about the “ongoing discrimination” against “individuals of African
descent.” Id. ¶ 17. During the summer of 2006, human resources representatives met with
InterPark employees who complained about Melissa Silver-Ward from the human resources
department and Richard Rosenberger, the District General Manager. Id. ¶ 18. These employees
complained that foreign nationals received different treatment than non-foreign nationals and
that Rosenberger had targeted “foreign nationals” for disciplinary action. Id. ¶ 19. Ndondji was
“very vocal” at this meeting and claims that the representatives “promised to investigate and
respond” to the employees’ complaints but never did. Id. ¶ 21.
Ndondji alleges that Silver-Ward then assigned Tony Stevenson, a new manager, to
“observe” and “spy” on him in retaliation for his complaints of discriminatory behavior. Id. ¶¶
40B, 47. Stevenson allegedly made “false statements regarding [his] practices,” id. ¶ 23, and
falsely accused him of taking money and of poor performance, id. ¶¶ 40C, 48. Ndondji claims
that Stevenson’s accusations were untrue and that he actually improved the conditions at the
garage. Id. ¶¶ 24, 42-44. Shortly thereafter, Ndondji was placed on a Performance Improvement
-3-
Plan (“PIP”) for “failing to reduce the accidents and improve revenue.” Id. ¶ 23. Although he
believed he should not have been placed on the PIP, Ndondji maintains that he tried “his
hardest” to make even greater improvements and “gave up lunch and times off to drive when
attendants were unavailable.” Id. ¶ 25. Ndondji claims he never received periodic PIP
evaluations as required and was fired at the end of the PIP and before his scheduled vacation. Id.
¶¶ 26-27, 45. On December 12, 2006, Ndondji was terminated for failing to make
improvements, although he maintains that he was never offered any evidence of his poor
performance. Id. ¶ 27.
Ndondji alleges that he filed a timely charge of discrimination and retaliation with the
Equal Employment Opportunity Commission (“EEOC”) on February 27, 2007 and received an
EEOC right-to-sue letter that was dated September 30, 2009. Id. ¶¶ 28-29. On December 30,
2009, Ndondji filed his case in this Court. Ndondji’s amended complaint is vague in its
allegations and does not distinguish clearly between claims, but the Court discerns the following
claims: (1) discrimination and retaliation claims under section 1981, (2) discrimination and
retaliation claims under Title VII, and (3) discrimination and retaliation claims under DCHRA.
On March 1, 2010, InterPark filed a motion to partially dismiss the complaint and
attached as an exhibit Ndondji’s “Charge of Discrimination” (“DCOHR/EEOC charge”) that he
filed with the D.C. Office of Human Rights (“DCOHR”) on June 4, 2007. Ndondji’s
DCOHR/EEOC charge was cross-filed with the EEOC. On the DCOHR/EEOC charge, Ndondji
checked the box that indicated that he had been discriminated against on the account of his
national origin. He alleged that (1) he had been “unjustly issued a disciplinary write-up” and (2)
“unjustly discharged from employment.” Ndondji filed his opposition to the motion on March
-4-
12, 2010.4 On March 15, 2010, Ndondji filed an amended complaint, and on March 29, 2010,
prior to any discovery, InterPark filed a second motion to partially dismiss the amended
complaint, which is now ripe.
STANDARD OF REVIEW
All that the Federal Rules of Civil Procedure require of a complaint is that it contain “‘a
short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to
‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41,
47 (1957)); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). Although “detailed
factual allegations” are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide
the “grounds” of “entitle[ment] to relief,” a plaintiff must furnish “more than labels and
conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550
U.S. at 555-56; see also Papasan v. Allain, 478 U.S. 265, 286 (1986). “To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting
Twombly, 550 U.S. at 570); accord Atherton v. District of Columbia Office of the Mayor, 567
F.3d 672, 681 (D.C. Cir. 2009). A complaint is plausible on its face “when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
4
Ndondji attached a copy of his EEOC Intake Questionnaire, dated February 27, 2007. Ndondji’s amended
complaint demonstrates that he views the submission of his EEOC Intake Questionnaire as the date when he first
filed a complaint with the EEOC. See Plaintiff’s EEOC Intake Questionnaire, Pl.’s Response, Exh. 1.
The Court considers this motion under Fed. R. Civ. P. 12(b)(6) rather than Fed. R. Civ. P. 56. As a result,
the Court will not consider documents beyond Ndondji’s formal DCOHR/EEOC charge dated June 4, 2007 and will
exclude the EEOC Intake Questionnaire in evaluating InterPark’s motion to dismiss. Even if the Court were to
consider the EEOC Intake Questionnaire, it only reiterates Ndondji’s allegations in his DCOHR/EEOC charge and
would not change the Court’s analysis of this motion.
-5-
for the misconduct alleged.” Iqbal, 129 S. Ct. at 1949. This amounts to a “two-pronged
approach” under which a court first identifies the factual allegations entitled to an assumption of
truth and then determines “whether they plausibly give rise to an entitlement to relief.” Id. at
1950-51.
The notice pleading rules are not meant to impose a great burden on a plaintiff. Dura
Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005); see also Swierkiewicz v. Sorema N.A., 534
U.S. 506, 512-13 (2002). When the sufficiency of a complaint is challenged by a motion to
dismiss under Rule 12(b)(6), the plaintiff’s factual allegations must be presumed true and should
be liberally construed in his or her favor. Leatherman v. Tarrant County Narcotics &
Coordination Unit, 507 U.S. 163, 164 (1993); Phillips v. Bureau of Prisons, 591 F.2d 966, 968
(D.C. Cir. 1979); see also Erickson, 551 U.S. at 94 (citing Twombly, 550 U.S. at 555-56). The
plaintiff must be given every favorable inference that may be drawn from the allegations of fact.
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Sparrow v. United Air Lines, Inc., 216 F.3d 1111,
1113 (D.C. Cir. 2000). However, “the court need not accept inferences drawn by plaintiffs if
such inferences are unsupported by the facts set out in the complaint.” Kowal v. MCI Commc'ns
Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Nor does the court accept “a legal conclusion
couched as a factual allegation,” or “naked assertions [of unlawful misconduct] devoid of further
factual enhancement.” Iqbal, 129 S. Ct. at 1949-50 (internal quotation marks omitted); see also
Aktieselskabet AF 21. November 21 v. Fame Jeans Inc., 525 F.3d 8, 17 n.4 (D.C. Cir. 2008)
(explaining that the court has “never accepted legal conclusions cast in the form of factual
allegations”).
-6-
DISCUSSION
In considering a motion to dismiss, “a court is limited to considering facts alleged in the
complaint, any documents attached to or incorporated by reference in the complaint, matters of
which the court may take judicial notice, and matters of public record.” Felder v. Johanns, 595
F. Supp. 2d 46, 58-59 (D.D.C. 2009) (citing EEOC v. St. Francis Xavier Parochial Sch., 117
F.3d 621, 624 (D.C. Cir. 1997)). A court may consider an EEOC complaint and Notice of
Charge without converting a motion to dismiss into a motion for summary judgment because
such records are “public document[s] of which a court may take judicial notice.” Ahuja v.
Detica Inc., No. 09-2246, 2010 WL 3833956, at *4 (D.D.C. September 30, 2010) (citing Wiley
v. NEBF Invs., No. 09-CV-223, 2010 WL 114953, at *1 n.1 (D.D.C. January 12, 2010)); see also
Williams v. Chu, 641 F. Supp. 2d 31, 35 (D.D.C. 2009) (finding that the court could take judicial
notice of EEOC decision denying plaintiff’s request for reconsideration of her discrimination
complaints). The Court may therefore consider Ndondji’s Charge of Discrimination that was
filed with the DCOHR and cross-filed with the EEOC in evaluating this motion.
InterPark now moves to dismiss most of Ndondji’s claims in his amended complaint,
except his discrimination claims under Title VII and DCHRA based on his termination.
InterPark argues that all of Ndondji’s section 1981 claims should be dismissed because his
claims are not based on racial discrimination and that his other Title VII and DCHRA
discrimination and retaliation claims should be dismissed because he failed to exhaust his
administrative remedies, those claims are barred by the statute of limitations, and Ndondji failed
to establish a prima facie case of discrimination. The Court will address each of these arguments
in turn.
-7-
I. Section 1981 Claims
A. Failure to State a Claim
InterPark moves to dismiss all of Ndondji’s section 1981 claims because he only alleges
national origin discrimination and section 1981 provides protection against racial discrimination
only. Mem. of Points and Auth. in Supp. of Def. Interpark Inc.’s Mot. to Partially Dismiss Pl.’s
Am. Compl. (“Def.’s Mem.”) at 5-8; Def. InterPark Inc.’s Reply to Pl.’s Opp’n to Def.’s Mot. to
Partially Dismiss Pl.’s Am. Compl. (“Def.’s Reply”) at 2-4. InterPark argues that the only basis
for discrimination that Ndondji identified in his DCOHR/EEOC charge and his amended
complaint was national origin. Def.’s Mem. at 5; Def.’s Reply at 3, n.2. Ndondji responds that
he sufficiently alleged that he was discriminated against because of his race, adding that
discrimination based on ancestry and ethnic characteristics can also be the basis for a section
1981 claim. Pl.’s Response and Opp.’n to Def.’s Mot. to Partially Dismiss Am. Compl. (“Pl.’s
Response”) at 3-4.
The Supreme Court recognized in St. Francis College v. Al-Khazraji that section 1981
prohibits racial discrimination and protects classes of persons from “intentional discrimination
solely because of [] ancestry or ethnic characteristics.” 481 U.S. 604, 613 (1987). Section 1981
does not prohibit national origin discrimination per se, and a plaintiff must demonstrate that the
discrimination is based on “ancestry or ethnic characteristics,” not on his country of origin, in
order to prevail in a section 1981 suit. See Amiri v. Hilton Washington Hotel, 360 F. Supp. 2d
38, 42-43 (D.D.C. 2003) (dismissing section 1981 claim when plaintiff did not base his
complaint on racial or ethnic characteristics but rather based it solely on the fact that he was
from Afghanistan); Kidane v. Northwest Airlines, Inc., 41 F. Supp. 2d 12, 12 (D.D.C. 1999)
-8-
(finding that discrimination claims based on plaintiff’s national origin, Ethiopia, were not
cognizable under section 1981); Wesley v. Howard Univ., 3 F. Supp. 2d 1, 3 (D.D.C. 1998)
(national origin discrimination claims can be raised under section 1981 only when based on
“racial or ethnic characteristics associated with the national origin in question”).
Even the most liberal reading of Ndondji’s allegations, with all reasonable inferences
drawn in his favor, confirms that he is alleging discrimination based on national origin, not race.
Ndondji’s factual allegations are devoted to discriminatory acts based on his national origin. He
complains that individuals who were “not foreign nationals” did not receive the same treatment
as “foreign nationals”; that complaints by “foreign nationals” were ignored by management; that
InterPark supervisors made statements that “illustrated their bias against foreign nationals”; that
he was terminated because of his “foreign nationality”; and that a “non-foreign national
(‘American’)” took his position. Am. Compl. ¶¶ 17, 19, 20, 38, 59-60. Nearly all of Ndondji’s
claims allege that he was discriminated against based on his national origin, Angolan, and the
fact that he was a “foreign national,” not based on his race. See Hyman v. First Union Corp.,
980 F. Supp. 36, 52 (D.D.C. 1997) (dismissing section 1981 discrimination claims when the
“very language” of plaintiff’s complaint demonstrates that her claims were based on national
origin).
Moreover, Ndondji’s DCOHR/EEOC charge reinforces the fact that he believed that he
was discriminated against solely because of his national origin and not his race. Ndondji
checked off the “national origin” box as the basis for his discrimination claims, even though a
“race” box was available. Ndondji further elaborated in writing that he was replaced by a “non-
Angolan individual,” then stated “[he] was discriminated against upon [his] national origin,
-9-
Angolan.” See DCOHR/EEOC charge; Def.’s Mem, Exh. 1. His complaint that he was replaced
by a “non-Angolan” shows that he perceived being “Angolan” as referring to his national origin
and not his race. In fact, Ndondji never mentions his race or refers to his race as the basis for
any discrimination claims he raises in his DCOHR/EEOC charge.
The Court will not recognize Ndondji’s attempt to blur race and national origin in order
to make out a section 1981 claim. Race and national origin are “ideologically distinct
categories.” Nyunt v. Tomlinson, 543 F. Supp. 2d 25, 35 (D.D.C. 2008); see also Espinoza v.
Farah Mfg.Co., 414 U.S. 86, 88 (1973) (defining national origin as “the country where a person
was born, or more broadly, the country from which his or her ancestors came”). Ndondji
contends that he is a “Black Angolan,” which he argues should be recognized as a protected
group under section 1981, and that there are “very distinct ethnic characteristics of Blank[sic]
individuals who hail from Angola.” Pl.’s Response at 3. Ndondji, however, never identifies
himself as “Black Angolan” in his amended complaint or offers any factual allegations that he
was discriminated against because he is a member of this class. He also offers no evidence or
arguments as to why identifying oneself as “Angolan” should be considered a “very distinct”
ancestral or ethnic characteristic rather than a person’s place of birth or origin. Ndondji also
alleges that “individuals of African descent” experienced “ongoing discrimination,” Am. Compl.
¶ 17, but he never alleges that he was discriminated against because of his ancestry or avers any
factual allegations that create a reasonable inference of such a claim. Such general, conclusory
allegations that Ndondji was a victim of racial discrimination are simply not enough to bring a
section 1981 action, particularly when the clear thrust of his allegations is based on national
origin discrimination. In short, bare assertions cannot transform Ndondji’s national origin
-10-
discrimination claims into racial discrimination claims eligible for section 1981 relief. See
Nyunt, 543 F. Supp. 2d at 34 (rejecting plaintiff’s argument that his national origin
discrimination claims based on his Burmese national origin can be viewed “as like or reasonably
related” to race and can be the basis for a racial discrimination claim); Kun v. Finnegan, 949 F.
Supp. 13, 16 (D.D.C. 1996) (finding that it would be improper for the court to re-cast plaintiff’s
national origin claim as a race discrimination claim); Sisay v. Greyhound Lines, Inc., 34 F. Supp.
2d 59, 64 (D.D.C. 1998) (finding plaintiff’s national origin discrimination claim could not
reasonably be expected to grow out of his properly exhausted racial discrimination claim and
also noting that allegations of race discrimination may “be wholly unrelated to a claimant’s
country of origin”).
Ndondji’s occasional reference to his race in his amended complaint is also insufficient
to make out a section 1981 action. Am. Compl. Id. ¶ 32a. A plaintiff “cannot merely invoke his
race in the course of a claim’s narrative and automatically be entitled to pursue [section 1981]
relief. Rather, plaintiff must allege some facts that demonstrate that his race was the reason for
[a] defendant’s actions.” Middlebrooks v. Godwin Corp., 722 F. Supp. 2d 82, 88 (D.D.C. 2010)
(quoting Bray v. RHT, Inc., 748 F. Supp. 3, 5 (D.D.C. 1990)). Here, Ndondji states that he is
black and makes the conclusory allegation that he was discriminated against on the basis of his
“national origin/race,” but he fails sufficiently to allege facts to support that claim. He claims
that he was placed in the “worst” locations because of his “perceived race,” Am. Compl. ¶ 33,
and discriminated against because of race in the “conditions of his employment,” id. ¶ 40A.
More specifically, he claims that workers who were “not Black” were allowed to have parking
attendants when he did not and “have a say in the workers assigned to them.” Id. ¶ 32A. He also
-11-
alleges that InterPark discriminated against him on the basis of “race/national origin” when he
was falsely accused of stealing, blamed for poor performance, and later terminated. Id. ¶ 40C.
Beyond such conclusory statements, however, Ndondji makes no factual allegations
demonstrating that his race, ancestry, or ethnic characteristics were the reason for any
mistreatment he suffered at InterPark. He never identifies the races of the InterPark employees
who allegedly discriminated against him or, more importantly, the races of other similarly
situated employees who were allegedly treated more favorably than he was. Ndondji’s claims at
their core are based on national origin, and mentioning race, without factual allegations
demonstrating that any discrimination was racially-motivated, will not transform those claims
into section 1981 claims based on racial discrimination. See Mesumbe v. Howard Univ., 706 F.
Supp. 2d 86, 92 (D.D.C. 2010) (dismissing section 1981 claim when plaintiff’s complaint only
makes a conclusory allegation of racial discrimination but does not allege “disparate treatment
was racially motivated” or the “race, ethnicity, or national origin of those who allegedly received
preferential treatment”); Alexander v. Wash. Gas Light Co., 481 F. Supp. 2d 16, 31 (D.D.C.
2006) (dismissing section 1981 claims when plaintiff only stated that he is African-American but
failed to “[plead] any facts or [make] any suggestion of racially discriminatory motive”);
Kalantar v. Lufthansa German Airlines, 402 F. Supp. 2d 130, 138 (D.D.C. 2005) (dismissing
section 1981 claim when plaintiff did not offer any evidence that he was singled out on the basis
of “racial or ethnic characteristics” as “opposed to his citizenship”). Where the question is
whether vague allegations of race discrimination are sufficient when no other basis for
discrimination is alleged, courts may be more lenient in allowing a section 1981 claim to
survive. See, e.g., Gray v. Universal Serv. Admin. Co., 581 F. Supp. 2d 47, 55 (D.D.C. 2008)
-12-
(plaintiff sufficiently pled section 1981 claim based on race and ancestry discrimination to
survive motion to dismiss). But when a plaintiff has unambiguously pled national origin as a
distinct basis for discrimination, and the only question is whether the plaintiff has also pled
racial discrimination, courts should not strain to find that passing references to race are sufficient
to state a section 1981 claim. Here, Ndondji’s claims rely on national origin discrimination, a
distinct and different type of discrimination than racial discrimination. The few references to
race do not change the fact that Ndondji’s claims are fundamentally about discrimination on the
basis of national origin.
That the focus of Ndondji’s claims is national origin rather than race is even clearer for
his retaliation claims. Ndondji’s retaliation claims stem from a meeting where he and others
allegedly complained that they were written up when “others that were not foreign nationals did
not receive the same treatment,” Am. Compl. ¶ 19, and “[t]he foreign national employees . . .
complained” that Silver-Ward did not respond to their complaints,” id. ¶ 20. He does not allege
that he was retaliated against for making a complaint of discrimination based on his race.
Accordingly, the Court will dismiss all of Ndondji’s claims under section 1981.
B. Statute of Limitations
Alternatively, InterPark argues that Ndondji’s section 1981 claims should be dismissed
because most of those claims are time-barred. Def.’s Mem. at 8; Def.’s Reply at 4-5. Section
1981 claims must be brought within four years after the cause of the action accrues. Jones v.
R.R. Donnelley & Sons Co., 541 U.S. 369, 383-84 (2004). Ndondji filed his complaint on
December 30, 2009. Thus, any claims based on events arising prior to December 30, 2005 – four
years before he filed the complaint – are time-barred. InterPark argues that many of the acts
-13-
underlying Ndondji’s claims occurred prior to that date. Def.’s Mem. at 8; Def.’s Reply at 4-5.
Ndondji responds that InterPark is mistaken as to which events alleged in his complaint are
intended to serve as causes of action; he maintains that all of his claims actually fall within the
limitations period. Pl.’s Response at 4-5. As discussed above, Ndondji’s section 1981 claims
are dismissed for his failure to state a claim, and the Court need not further explore whether any
of his claims also are subject to dismissal on statute of limitations grounds.
II. Title VII Claims
A. Exhaustion of Administrative Remedies
InterPark moves to dismiss all of Ndondji’s Title VII discrimination and retaliation
claims, except for his discrimination claim based on his termination, for failure to exhaust
administrative remedies. Under Title VII, a plaintiff must timely exhaust his administrative
remedies before bringing an action in federal court. Payne v. Salazar, 619 F.3d 56, 65 (D.C. Cir.
2010). To be timely, a claimant first must file an administrative charge alleging that the
employer has engaged in an unlawful employment practice within a specified period (either 180
or 300 days) after the practice has occurred. Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550
U.S. 618, 623-24 (2007). Only those claims that are contained in the administrative complaint or
that are “like or reasonably related” to the allegations of the administrative complaint can be
raised in a Title VII lawsuit. Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995); see also
Bailey v. Verizon Comm., Inc., 544 F. Supp. 2d 33, 37-38 (D.D.C. 2009) (noting that “[i]f a
plaintiff’s EEOC charge makes a class of allegation altogether different from that which she later
alleges when seeking relief in federal district court, she will have failed to exhaust administrative
remedies”). Such claims “must arise from ‘the administrative investigation that can reasonably
-14-
be expected to follow the charge of discrimination.’” Park, 71 F.3d at 907 (quoting Chisholm v.
U.S. Postal Serv., 665 F.2d 482, 491 (4th Cir. 1981)). The exhaustion requirement provides the
EEOC the opportunity to investigate and “serves the important purpose of giving the charged
party notice of the claim and ‘narrow[ing] the issue for prompt adjudication and decision.’” Id.(quoting Laffey v. Northwest Airlines, Inc., 567 F.2d 429, 472 n.325 (D.C. Cir. 1976)). The
defendant bears the burden of proving by a preponderance of the evidence that the plaintiff has
failed to exhaust his administrative remedies. Bowden v. United States, 106 F.3d 433, 437 (D.C.
Cir. 1997); Brown v. Marsh, 777 F.2d 8, 14 (D.C. Cir. 1985). “Meager, conclusory allegations”
that plaintiff has not exhausted his administrative remedies will not be sufficient. Hudson v.
Children’s Nat’l Medical Ctr., 645 F. Supp. 2d 1, 5 n.4 (D.D.C. 2009) (quoting Brown, 777 F.2d
at 12).
Requiring claimants properly to raise claims before the EEOC should not be construed to
place a “heavy technical burden” on individuals, but “it is also true that ‘the requirement of some
specificity in a charge is not a mere technicality.’” Park, 71 F.3d at 907 (citing Ostrapowicz v.
Johnson Bronze Co., 541 F.2d 394, 398 (3d Cir. 1976)). A claimant is not necessarily limited to
the boxes selected in the administrative complaint as the basis for the claim if his written
explanation can provide a basis for identifying the nature of his claims. Robinson-Reeder v. Am.
Council Educ., 532 F. Supp. 2d 6, 13 (D.D.C. 2008). At the same time, “[a] court cannot allow
liberal interpretation of an administrative charge to permit a litigant to bypass the Title VII
administrative process.” Id. Dismissal is required when a plaintiff fails to exhaust his
administrative remedies with respect to particular claims. Rann v. Chao, 346 F.3d 192, 194-95
(D.C. Cir. 2003) (affirming dismissal of plaintiff’s age discrimination claims for failure to
-15-
exhaust administrative remedies); Gillet v. King, 931 F. Supp. 9, 12-13 (D.D.C. 1996)
(dismissing plaintiff’s Title VII claims for failure to exhaust administrative remedies).
1. Discrimination Based on National Origin
InterPark contends that the majority of Ndondji’s discrimination claims under Title VII
should be dismissed for failure to exhaust administrative remedies. Def.’s Mot. at 9-10; Def.’s
Reply at 6-8. According to InterPark, Ndondji has only alleged one proper claim – that
he was terminated because of his national origin. Def.’s Mem. at 2; Def.’s Reply at 11.
Ndondji’s “reassignment/transfer allegation” and all remaining discrimination claims, InterPark
argues, should be dismissed. Id. In response, Ndondji argues that all of his discrimination
claims are “like or reasonably related to the allegations” raised before the EEOC, and a
reasonable EEOC investigation would have led to an investigation of all of his claims. Pl.’s
Response at 5-6.
The Court finds that Ndondji properly exhausted his administration remedies for his
discrimination claims based on national origin relating to (1) his disciplinary write-up and (2) his
termination. His DCOHR/EEOC charge states:
I. On 7/28/88, I was hired by Respondent to work as a Lobby Attendant. I was
unjustly issued a disciplinary writeup regarding the disappearance of $209.00
from a company facility. Finally, on 12/12/06, while I was employed by a
Respondent as a Facility Manager, I was unjustly discharged from employment.
By contrast, I was replaced by a non-Angolan individual.
II. I believe that I was discriminated against based upon my national origin,
Angolan, in violation of Title VII of the Civil Rights Act of 1964, as amended.
Def.’s Mem., Exh. 1. Ndondji also checked the “national origin” box on the DCOHR/EEOC
form. The DCOHR and EEOC therefore had timely and sufficient notice of his national origin
discrimination claims based on his disciplinary writeup and his termination.
-16-
However, Ndondji failed to exhaust his administrative remedies for his remaining
discrimination claims.5 Ndondji now alleges a host of negative working conditions he allegedly
experienced, including transfers to difficult locations, an increased workload, management
reprimands, spying by a co-worker, and placement on PIP. Am. Compl. ¶¶ 32-40. But Ndondji
does not reference his working conditions or offer any factual allegations to support these claims
in his DCOHR/EEOC charge. Such claims do not involve the same factual circumstances or the
same types of discriminatory conduct as, and hence are not “like or reasonably related” to, the
only two acts raised in his DCOHR/EEOC charge: receiving a disciplinary write-up and being
terminated. See Chacko v. Patuxent Inst., 429 F.3d 505, 506 (4th Cir. 2005) (finding plaintiff
failed to exhaust administrative remedies when EEOC charge referenced “different time frames,
actors, and discriminatory conduct than the central factual allegations”).
Ndondji specified two claims in his DCOHR/EECO charge, a particular disciplinary
write-up in 2006 and his December 2006 discharge. Those administrative claims do not capture
the mix of working condition complaints that he now also pursues. A reasonable investigation of
Ndondji’s two specific complaints would not be expected to reveal his claims of negative
working conditions that started as far back as 2004. He should not be allowed to bypass the Title
VII exhaustion requirement and now litigate claims that he could have but never raised before
5
Some district courts applying the Supreme Court’s decision in National R.R Passenger Corp. v. Morgan,
536 U.S. 101 (2002), have held that a plaintiff must exhaust his administrative remedies with respect to each discrete
discriminatory and retaliatory act alleged. See, e.g., Taylor v. Mabus, 685 F. Supp. 2d 94, 99 (D.D.C. 2010);
Romero-Ostolaza v. Ridge, 370 F. Supp. 2d 139, 148-50 (D.D.C. 2005); Coleman v. Adebayo v. Leavitt, 326 F.
Supp. 2d 132, 137 (D.D.C. 2004). Cf. Thomas v. Vilsack, 718 F. Supp. 2d 106, 121 (D.D.C. 2010); Jones v.
Bernanke, 685 F. Supp. 2d 31, 37 (D.D.C. 2010); Lewis v. Dist. of Columbia, 535 F. Supp. 2d 1, 7 (D.D.C. 2008).
The D.C. Circuit has not weighed in on whether to adopt this interpretation of Morgan for the exhaustion of
remedies requirement. Payne, 619 F.3d at 65 (“We need not decide whether Morgan did in fact overtake [the] line
of cases [permitting the litigation of unfiled claims that were ‘like or reasonably related to claims’ filed with the
agency].”). This Court need not resolve the question here because Ndondji’s remaining discrimination claims do not
satisfy even the more permissive “like or reasonably related to” standard.
-17-
the EEOC or the DCOHR. To hold otherwise would undermine the purpose of the Title VII
exhaustion requirement – to provide sufficient notice to the agency and charged party of the
claims. Park, 71 F.3d at 907; Nyunt, 543 F. Supp. 2d at 35. Accordingly, the Court will dismiss
Ndondji’s national origin discrimination claims under Title VII, other than those based on his
disciplinary write-up and termination, for failure to exhaust his administration remedies.
2. Retaliation
The Court also agrees with InterPark that Ndondji failed to exhaust his administrative
remedies for his retaliation claims under Title VII. Ndondji is not required to allege facts
sufficient to make out a prima facie case of retaliation in his DCOHR/EEOC charge or even in
his complaint, see Ellis v. Georgetown Univ. Hosp., 631 F. Supp. 2d 71, 76 (D.D.C. 2009), but at
a minimum he must have raised his pre-charge retaliation allegations with the EEOC to exhaust
his administrative remedies, see Payne, 619 F.3d at 65 (affirming dismissal of retaliation claim
when plaintiff failed to exhaust her administrative remedies on that particular retaliation claim);
Maryland v. Sodexho, 474 F. Supp. 2d 160, 162 (D.D.C. 2007) (noting that an employee “must .
. . alert the EEOC and the charged employer with the nature of the alleged wrongdoing in the
EEOC charge”). Retaliation claims that occurred prior to the filing of a claim must be
administratively exhausted. See, e.g., Brown v. Dist. of Columbia, 251 F. Supp. 2d 152, 162
(D.D.C. 2003) (dismissing Title VII retaliation claims for failure to exhaust administrative
remedies when plaintiff failed to raise retaliation allegations in EEOC complaint); Pyne v. Dist.
of Columbia, 298 F. Supp. 2d 7, 12 (D.D.C. 2002) (finding that to exhaust administrative
remedies and seek relief, it is a “prerequisite” to bring a retaliation charge before the EEOC if
the retaliation occurred prior to the filing of the EEOC charge); Hunt v. Dist. of Columbia Dep’t
-18-
of Corrections, 41 F. Supp. 2d 31, 37 (D.D.C. 1999) (finding that plaintiff failed to exhaust
administrative remedies when alleging a retaliation claim that occurred prior to filing and was
different than that raised in EEOC charge).
Here, Ndondji failed to include any factual allegations in his DCOHR/EEOC charge
raising a retaliation claim. Although he does not organize his claims into specific counts, the
Court identifies four potential retaliation claims in his amended complaint. As a result of his
complaints to management sometime in 2006, Ndondji alleges that InterPark retaliated against
him by (1) assigning a co-worker to “spy” on him; (2) issuing a disciplinary warning; (3) placing
him on a Performance Improvement Plan (“PIP”), and (4) terminating him. Am. Compl. ¶¶ 23;
26; 47-49; 59-60. Each of Ndondji’s alleged retaliation claims occurred prior to his filing of the
administrative charge, but he neither checked the “Retaliation” box on the DCOHR/EEOC
charge, nor offered factual allegations in the charge to support a retaliation claim. His charge
thus lacks any facts alleging that InterPark acted in retaliation or any reference to complaints he
allegedly made to InterPark management or human resources. Ndondji was not necessarily
limited to the boxes he checked on the DCOHR/EEOC form to indicate the basis for his Title VII
claim, see Robinson-Reeder, 532 F. Supp. 2d at 13, but here, he never expressed or described
any belief that InterPark retaliated against him, see Maryland, 474 F. Supp. at 162 (finding that
plaintiff “need only describe [the nature of the charge] in the text of the [EEOC] charge form” to
exhaust his administrative remedies as to that charge). In fact, Ndondji’s written explanation on
the DCOHR/EEOC charge only discussed his belief that he was “discriminated against based
upon [his] national origin, Angolan.” Def.’s Mem., Exh. 1. Ndondji never gave any indication
whatsoever to the DCOHR or the EEOC that InterPark had engaged in retaliatory behavior.
-19-
Moreover, raising discrimination claims before the EEOC is not sufficient to warrant
adding retaliation claims later in a Title VII suit. Discrimination and retaliation claims are
considered distinct types of claims that must be raised independently if the retaliation occurred
prior to the filing of the administrative charge. See Ponce v. Billington, 652 F. Supp. 2d 71, 73-
74 (D.D.C. 2009) (finding plaintiff failed to exhaust administrative remedies for retaliation when
he did not allege retaliation in his EEOC complaint and retaliation was not “like or reasonably
related to” his other discrimination claims); Miller v. Rosenker, 578 F. Supp. 2d 107, 112
(D.D.C. 2008) (dismissing age or gender discrimination claims when he only raised retaliation
claims in his administrative complaint); Maryland, 474 F. Supp. 2d at 162 (dismissing earlier
discrimination claims when plaintiff only raised retaliation claims, failed to check the
discrimination box on the EEOC charge or give any indication in the EEOC charge that the
claims were based on discrimination). Therefore, because of the absence of any facts or
allegations in the DCOHR/EEOC charge indicating that his claims were based on retaliation,
Ndondji has failed to exhaust his administrative remedies for his retaliation claims under Title
VII. Accordingly, Ndondji’s retaliation claims under Title VII will be dismissed. See Marcelus
v. Corrections Corp. of America, 540 F. Supp. 2d 231, 236 (D.D.C. 2008) (dismissing retaliation
claims when plaintiff did not raise retaliation claim in EEOC charge and when nothing in EEOC
charge referenced retaliation).
B. Statute of Limitations
InterPark moves to dismiss Ndondji’s Title VII discrimination claims based on events
that occurred prior to August 9, 2006, as time-barred. Def.’s Mem. at 11; Def.’s Reply at 8; see
42 U.S.C. § 2000e-5(e)(1). Under Title VII, a plaintiff must file a charge with the EEOC within
-20-
300 days of the date of the alleged discriminatory act. Nat’l R.R. Passenger Corp. v. Morgan,
536 U.S. 101, 109-10 (2002); see 42 U.S.C. §20000e-5(e)(l) (2008). InterPark also notes that
Ndondji did not challenge its statute of limitations argument. Def.’s Mem. at 8; Def.’s Reply at
8. Ndondji contests InterPark’s statute of limitations arguments regarding his section 1981
claims, but he never addresses Title VII’s statute of limitations specifically. Pl.’s Response at 8.6
Dismissal based on this affirmative defense is appropriate when the facts giving rise to
the statute of limitations defense are clear from the face of the complaint. Smith-Haynie v. Dist.
of Columbia, 155 F.3d 575, 578 (D.C. Cir. 1998). The Court may dismiss a claim on statute of
limitations grounds if “no reasonable person could disagree on the date” on which the cause of
action accrued. Smith v. Brown & Williamson Tobacco Corp., 3 F. Supp. 2d 1473, 1475
(D.D.C. 1998) (citing Kuwait Airways Corp. v. Am. Sec. Bank, N.A., 890 F.2d 456, 463 n.11
(D.C. Cir. 1989)). “[B]ecause statute of limitations issues often depend on contested questions
of fact, dismissal is appropriate only if the complaint on its face is conclusively time-barred.”
Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996).
By requesting that the Court dismiss the majority of Ndondji’s claims on Title VII statute
of limitation grounds, InterPark appears to characterize those claims as having occurred shortly
after his 2004 transfer to a different location. Ndondji’s complaint, however, contains vague
allegations without precise dates. As InterPark acknowledges, Ndondji “did not provide specific
dates” for some alleged discriminatory acts. See Def.’s Mem. at 13, n. 9. Indeed, it is not clear
6
Arguably, the Court could treat this argument as conceded based on Ndondji’s failure to respond directly
to InterPark’s Title VII statute of limitations argument in his opposition. See Hopkins v. W omen’s Div., Gen. Bd. of
Global Ministries, 238 F. Supp. 2d 174, 178 (D.D.C. 2002) (“It is well understood in this Circuit that when a
plaintiff files an opposition to a motion to dismiss addressing only certain arguments raised by the defendant, a court
may treat those arguments that the plaintiff failed to address as conceded.”) (citations omitted).
-21-
as to the exact timing of any of the alleged discriminatory acts, except for his 2004 transfer to a
different location and his December 2006 termination. Prior to discovery, the Court is not
prepared to take a narrow reading of Ndondji’s complaint and hence declines to dismiss his
claims on statute of limitations grounds at this time. InterPark has failed to satisfy its burden to
demonstrate that Ndondji’s discrimination claims are “conclusively time-barred” on the face of
the complaint.
C. Adverse Employment Actions
The Court agrees with InterPark that Ndondji’s Title VII discrimination claims,
excluding his termination claim, are subject to dismissal for a failure to satisfy one element of a
prima facie case. InterPark argues that Ndondji’s discrimination allegations do not constitute
discrete adverse employment actions as required to bring a Title VII case, including the
following alleged actions: (1) InterPark placed him in the “worst” and “most difficult” locations
(Am. Compl. ¶¶33-34); (2) InterPark deprived him of “adequate” and satisfactory attendants (¶¶
34-35); (3) InterPark forced him to over-park the location and then blamed him for the failure to
prevent accidents (¶ 36); (4) InterPark overworked him and blamed him for the poor
performance of others (¶ 39); (5) InterPark assigned another employee to spy on him (¶ 40B);
and (6) InterPark placed him on a performance improvement plan (“PIP”) (¶ 42). See Def.’s
Mem. at 13-14; Def.’s Reply at 9. Ndondji largely avoids responding to InterPark’s arguments,
except to emphasize that there is a liberal pleading standard at the motion to dismiss stage. See
Pl.’s Response at 6-7.
A plaintiff does not need to plead each element of his prima facie case to survive a
motion to dismiss, Robinson-Reeder, 532 F. Supp. 2d at 14 (quoting Swierkiewicz v. Sorema
-22-
N.A., 534 U.S. 506, 515 (2002)), but he “must allege facts that, if true would establish the
elements of each claim” in his complaint, id. (citing Rattigan v. Gonzales, 503 F. Supp. 2d 56, 75
(D.D.C. 2007)). Thus, “the Court may explore the plaintiff’s prima facie case at the dismissal
stage to determine ‘whether the plaintiff can ever meet his initial burden to establish a prima
facie case for Title VII discrimination.’” Rattigan, 503 F. Supp. 2d at 72 (citation omitted). To
succeed on a Title VII claim, a plaintiff has the initial burden of establishing a prima facie case
of discrimination by showing that “‘(1) she is a member of a protected class; (2) she suffered an
adverse employment action; and (3) the unfavorable action gives rise to an inference of
discrimination.’” Wiley v. Glassman, 511 F.3d 151, 155 (D.C. Cir. 2007). “An ‘adverse
employment action’ is ‘a significant change in employment status, such as hiring, firing, failing
to promote, reassignment with significantly different responsibilities, or a decision causing
significant change in benefits.’” Douglas v. Preston, 559 F.3d 549, 549 (D.C. Cir. 2009); Taylor
v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003) (quoting Burlington Indus., Inc. v. Ellerth, 524
U.S. 742, 760 (1998)). The employee “must experience[] materially adverse consequences
affecting the terms, conditions, or privileges of employment or future employment opportunities
such that a reasonable trier of fact could find objectively tangible harm.” Forkkio v. Powell, 306
F.3d 1127, 1131 (D.C. Cir. 2002) (citing Brown v. Brody, 199 F.3d 446, 457 (D.C. Cir. 1999)).
“A tangible employment action in most cases inflicts direct economic harm.” Douglas, 559 F.3d
at 552 (quoting Burlington, 524 U.S. at 762). “[C]ourts cannot be wheeled into action for every
workplace slight, even one that was possibly based on protected conduct.” Taylor v. Fed.
Deposit Ins. Corp., 132 F.3d 753, 765 (D.C. Cir. 1997).
Here, Ndondji fails to allege any factual circumstances that constitute an adverse
-23-
employment action as required to bring a Title VII claim.7 Generally, his discrimination claims
other than his termination claim reflect employment-related grievances amounting to
dissatisfaction with his working conditions. These grievances cannot qualify as adverse
employment actions. “Not everything that makes an employee unhappy” is an adverse
employment action. Broderick v. Donaldson, 437 F.3d 1226, 1234 (D.C. Cir. 2006) (quoting
Russell v. Principi, 257 F.3d 815, 818 (D.C. Cir. 2001)). Only “tangible harm[s],” such as a
“change in grade, salary, or other benefits, rise to the level of adverse employment actions.”
Robinson-Reeder, 532 F. Supp. 2d at 16. “Minor changes in work-related duties or
opportunities” do not constitute adverse employment actions without some tangible harm.
Stewart v. Evans, 275 F.3d 1126, 1135 (D.C. Cir. 2002).
1. Transfers/Reassignments to Other Locations8
Ndondji claims that his transfers to the “worst” and “most difficult” locations must
constitute adverse employment actions. Am. Compl. ¶ 33-34. If his complaint is liberally
construed in his favor, Ndondji’s allegations could suggest that he was transferred to additional
locations beyond the one transfer to the 1900 19th Street location in 2004 mentioned in his
complaint. But Ndondji has not alleged that any undesirable transfer led to “objectively tangible
harm” such as a decrease in salary or benefits or that any transfer affected the “terms, conditions,
7
Ndondji’s amended complaint is vague in its allegations and does not clearly set forth all causes of action.
Hence, several of his allegations may have been intended to serve as “background information” rather than distinct
claims. For purposes of analyzing the viability of his Title VII discrimination claims, however, the Court will
consider all allegations that could potentially represent discrimination claims.
8
Ndondji explains that his allegation of a 2004 transfer to one of the busiest locations (Am. Compl. ¶ 10) is
not meant to be treated as a “cause of action.” Pl.’s Response at 4. Rather, he claims that this allegation is meant to
be read as a “supporting statement” for other discriminatory events that occurred later. Id. Ndondji, however,
explains that his allegation that he was “put in the worst locations” is meant to state a cause of action. Id.; Am.
Compl. ¶ 33.
-24-
or privileges” of his employment. See Martin v. Locke, 659 F. Supp. 2d 140, 148 (D.D.C. 2009)
(finding plaintiff failed to show that her job transfer constituted an adverse employment action
when she did not allege her pay or grade was reduced). Lateral transfers – those transfers where
a person does not suffer a decrease in compensation or benefits or a “demotion in form or
substance” – are generally not viewed as adverse employment actions. Stewart, 352 F.3d at 426
(citing Brown, 199 F.3d at 457). A lateral transfer must also involve the “withdrawing [of] an
employee’s supervisory duties” or “reassignment with significantly different responsibilities”
before it will amount to an adverse employment action. Czekalski v. Peters, 475 F.3d 360, 364
(D.C. Cir. 2007) (citations omitted). Ndondji has not alleged that his transfers led to a reduction
in pay or benefits or “demotion in form or substance” when compared to his position at other
locations. He may have been transferred to “less desirable” locations, but transfers without more
do not constitute adverse employment actions.
2. Heavier Workload
None of Ndondji’s allegations relating to his work conditions rises to the level of an
adverse employment action, including his claims that he was deprived of a reasonable number of
attendants compared to other employees and that he was over-worked. “Scarce resources and
increased workloads are familiar complaints in virtually every workplace and every industry, but
they do not give rise to a discrimination claim under Title VII.” Rattigan, 503 F. Supp. 2d at 73;
see also Mack v. Strauss, 134 F. Supp. 2d 103, 113-14 (D.D.C. 2001) (holding that an allegedly
increased workload is insufficient to bring a discrimination claim without “some adverse change
in the terms, conditions, or privileges of employment”); Brodetski v. Duffey, 141 F. Supp. 2d 35,
45 (D.D.C. 2001) (finding that plaintiff’s heavier workload compared to his peers was not
-25-
sufficiently adverse action, that “work inequity” is the “level of personnel decision-making in
which courts should not meddle,” and that employees should expect to shoulder an “extra load”
on occasion or “step in if there [are] unexpected staff shortages”). Ndondji alleges that he
worked during “lunch and times off” when he was placed on a PIP, Am. Compl. ¶ 25, but it is
not surprising that Ndondji may have put in extra time and effort while on a PIP. Besides his
time on a PIP, he fails to allege any other occasion when he was overworked due to the shortage
of qualified parking attendants. See Mayers v. Laborer’s Health & Safety Fund, 478 F.3d 364,
369 (D.C. Cir. 2007) (finding that plaintiff failed to allege “adverse action” when she failed to
allege that her workload increased “above and beyond what ordinarily was expected of her”).
Ndondji’s claims that management demanded that he over-park the garage also cannot,
standing alone, amount to an adverse employment action. “Courts are not in a position to review
every task that management assigns to employees.” Brodetski, 141 F. Supp. 2d at 45 (citing
Mungin v. Katten Muchin & Zavs, 116 F.3d 1549, 1556 (D.C. Cir. 1997)). Courts should
hesitate before engaging in “‘judicial micromanagement of business practices’ by second-
guessing employers’ decisions.” Baloch v. Kempthorne, 550 F.3d 1191, 1191 (D.C. Cir. 2008)
(citation omitted). Ndondji’s allegations that management “forced” him to over-park the cars
and issued orders concerning how to carry out his job responsibilities do not reflect a “significant
change in [his] employment status.” Taylor, 350 F.3d at 1293; see also Brantley v. Kempthorne,
No. 06-1137, 2008 U.S. Dist. LEXIS 38406, at *14 (D.D.C. May 13, 2008) (“To qualify as an
adverse action, the incident must be inherently related to plaintiff’s employment status . . . .
Events that merely have an effect on plaintiff’s work environment are legally insufficient.). This
Court will not second-guess InterPark’s business decisions as to what constitutes a reasonable
-26-
number of staff members and their appropriate location assignments. Ndondji’s disagreements
with InterPark management about the qualifications of other employees, the reasonable number
of employees assigned to a location, and its business practices, such as the proper time to put out
a “Full” sign for a parking garage, cannot form the basis of a Title VII lawsuit.
3. Management Reprimands
Similarly, management reprimands for failing to prevent parking accidents or blame for
the poor performance of Ndondji’s parking attendants are not adverse employment actions.
“Formal criticisms or poor performance evaluations” are not necessarily adverse employment
actions, and “should not be considered such if they did not ‘affect[] the [employee’s] grade or
salary.’” Taylor, 350 F.3d at 1293 (quoting Brody, 199 F.3d at 457); see also Douglas, 559 F.3d
at 552 (“[P]erformance evaluations ordinarily [are] not actionable under Title VII.”); Stewart,
275 F.3d at 1135 (noting that “formal criticisms or reprimand without additional disciplinary
action” are not adverse employment actions); Broderick, 437 F.3d at 1234 n. 2 (finding that
“disciplinary memo” does not constitute adverse action when it did not affect plaintiff’s “grade,
salary, duties or responsibilities”); Powell v. Castaneda, 390 F. Supp. 2d 1, 23-24 (D.D.C. 2005)
(finding that letter of reprimand for being late to a meeting and lower performance review did
not constitute adverse employment actions). Ndondji did not suffer any disciplinary action or
decrease in salary, benefits, or significant responsibilities as a result of management’s
reprimands; thus, his complaints about management reprimands cannot constitute adverse
employment actions.
4. “Spying” and Disciplinary Write-up
Ndondji’s allegation that InterPark assigned an employee to “spy” on him also does not
-27-
entail objectively tangible harm and thus does not constitute an adverse employment action.
Closely supervising an employee will not automatically subject an employer to Title VII
exposure. See, e.g., Zelaya v. Unicco Service Co., No. 07-02311, 2010 WL 3292364, at *8
(D.D.C. 2010) (finding that assigning an employee to monitor plaintiff temporarily constitutes a
“petty slight[]” and “minor annoyance[]” and is not a materially adverse action); Nurriddin v.
Bolden, 674 F. Supp. 2d 64, 89 n.20 (D.D.C. 2009) (finding that “spying” by co-workers fails to
qualify as adverse employment action because there was no allegation of objectively tangible
harm). “Being subject to ‘scrupulous monitoring’ does not constitute an adverse action because
‘it is part of the employer’s job to ensure that employees are safely and properly carrying out
their jobs.’” Rattigan, 503 F. Supp. 2d at 56 (quoting Runkle v. Gonzales, 391 F. Supp. 2d 210,
225 (D.D.C. 2005) (citation omitted)); see also Lester v. Natsios, 290 F. Supp. 2d 11, 30 (D.D.C.
2003) (“[B]eing closely supervised or ‘watched’ does not constitute an adverse action that can
support a claim under Title VII.”). Here, Ndondji maintains that an InterPark employee
(Stevenson) was assigned to spy on him and contends that the very act of “spying” itself
constituted a discriminatory act. Am. Compl. ¶¶ 23, 40B. Ndondji, however, has not alleged
that the spying led to a “reduction in [his] benefits, hours of work or salary, or that he suffered
significantly diminished work responsibilities, all of which would show [he] suffered an adverse
employment action.” Nurriddin, 674 F. Supp. 2d at 94.
Ndondji also claims that Stevenson falsely accused him of “false practices,” including
“falsely accusing him of taking money,” Am. Compl. ¶¶ 23, 40C, and although it is not clear in
the amended complaint, it appears that Ndondji is alleging that it is Mr. Stevenson’s false
statements that led him to be “unjustly issued a disciplinary write-up” as referenced in Ndondji’s
-28-
DCOHR/EEOC form. Receiving a disciplinary write-up alone, however, is not sufficient to
constitute an adverse employment action. Hunter v. Ark Restaurants Corp., 3 F. Supp. 2d 9, 20
(D.D.C. 1998) (finding that supervisors filing disciplinary write-ups against plaintiff is not an
adverse employment action when plaintiff did not allege any facts that he suffered a
“demonstrably adverse action” that affected his employment position). Ndondji also contends
that his disciplinary-write up resulted in his unfair placement on a PIP, Am. Compl. ¶¶ 23, but
PIP placement does not constitute an adverse employment action for the reasons discussed
below.
5. Performance Improvement Plan (“PIP”)
Finally, Ndondji argues that his placement on a PIP constituted a discriminatory act.
Am. Compl. ¶ 42; Pl.’s Response at 8. Placement on a PIP, however, cannot rise to the level of
an adverse employment action without allegations of “objectively tangible harm” to the “terms,
conditions, or privileges” of employment. See Taylor, 350 F.3d at 1293 (finding that placement
on a PIP alone does not constitute an adverse employment action); Kelly v. Mills, 677 F. Supp.
2d 206, 221 (D.D.C. 2010) (same). Here, Ndondji has not alleged that his placement on a PIP
affected his grade or salary, or led to a material change of benefits or responsibilities such that it
rose to the level of an adverse employment action. See Douglas, 559 F.3d at 552 (noting that
“performance evaluations ordinarily are not actionable under Title VII; ‘[t]he result of an
evaluation is often speculative, making it difficult to remedy’”)(quoting Russell, 275 F.3d at
818). Ndondji’s argument that his PIP was used to “embarrass” and “harass” him is also not
enough. “Public humiliation” or “loss of reputation” is not enough to establish an adverse
action. Forkkio, 306 F.3d at 1130-31 (quoting Stewart, 275 F.3d at 1136). The fact that Ndondji
-29-
allegedly never received PIP evaluations did not adversely affect his employment. Taylor, 350
F.3d at 1293 (finding that delay of plaintiff receiving PIP performance evaluations was not an
adverse employment action). Although Ndondji was eventually terminated after his PIP
placement, he does not allege any objectively tangible harm as a result of the PIP placement
itself. See Kelly, 677 F. Supp. 2d at 221 (dismissing plaintiff’s discrimination claim for the PIP
placement that led to plaintiff’s termination).
* * * * *
In sum, beyond his termination claim, each of Ndondji’s remaining discrimination claims
must be dismissed because each does not as a matter of law rise to the level of an adverse
employment action as required under Title VII to establish a prima facie case of discrimination.
See Rattigan, 503 F. Supp. 2d at 74-75; (citing Runkle, 391 F. Supp. 2d at 222) (dismissing
claims when allegations did not “amount to legally cognizable adverse actions and therefore
would not enable him to ever establish a prima facie case under Title VII.”).
III. D.C. Human Rights Act (“DCHRA”)
The DCHRA, like Title VII, prohibits certain discriminatory practices “[b]y an
employer,” making it unlawful to “fail or refuse to hire, or to discharge, any individual; or
otherwise discriminate against any individual, with respect to his compensation, terms,
conditions, or privileges of employment” based upon protected categories including, inter alia,
an individual’s “race, color, religion, national origin, [or] sex.” D.C. Code § 2-1402.11(a)(1). In
the end, Ndondji’s DCHRA claims fare about the same as his Title VII claims.
A. Failure to Exhaust Administrative Remedies
InterPark argues that Ndondji has failed to exhaust his administrative remedies for his
-30-
discrimination and retaliation claims under the DCHRA, and thus that this Court must dismiss all
of Ndondji’s DCHRA claims except his termination claim. See Def.’s Mem. at 9-10; Def.’s
Reply at 6-7. InterPark, however, is incorrect in arguing that Ndondji is required to satisfy such
a requirement under the DCHRA. Generally, only District of Columbia government employees
are required to exhaust their administrative remedies prior to filing a lawsuit under the DCHRA.
See Bowie v. Gonzales, 433 F. Supp. 2d 24, 33 (D.D.C. 2006); Fowler v. Dist. of Columbia, 122
F. Supp. 2d 37, 40 (D.D.C. 2000) (noting that the DCHRA “generally does not require
exhaustion of administration remedies, except for employees of the District of Columbia
government”) (citing Hunt, 41 F. Supp. 2d 31, 37 (D.D.C. 1999)); Kennedy v. Dist. of Columbia,
654 A.2d 847, 863 (D.C. 1995) (“[W]e [have] clearly stated that D.C. government employees,
unlike non-government employees, are required to exhaust the administrative remedies available
to them under the D.C. Human Rights Act.”) (citing Williams v. Dist. of Columbia, 467 A.2d
140, 141 (D.C. 1983)). Nothing in the plain language of the DCHRA suggests that an
exhaustion requirement applies to non-District of Columbia government employees, and
InterPark has not provided the Court with any authority to support its position. Therefore, the
Court finds that all of Ndondji’s DCHRA claims survive this challenge.
B. Statute of Limitations
InterPark also argues that Ndondji’s discrimination claims are time-barred under the
DCHRA and requests that the Court exclude from this case all alleged discriminatory acts that
occurred prior to June 4, 2006. See Def.’s Mem. at 10-11; Def.’s Reply at 8. InterPark notes
that Ndondji has failed to specifically contest its DCHRA statute of limitations arguments. Id.Under the DCHRA, claims must be filed within one year of the occurrence of the alleged
-31-
discriminatory act. D.C. Code §§ 2-1403.04, 2-1403.16. As discussed earlier, InterPark has not
established that any of Ndondji’s discrimination claims are “conclusively time-barred” except
his 2004 transfer to a different location, to the extent that it can be considered as a distinct
alleged discriminatory act. Prior to discovery, the Court declines to dismiss any of Ndondji’s
claims on statute of limitations grounds at this time.
C. Failure to State a Prima Facie Case for Discrimination
Lastly, InterPark, adopting the same reasoning directed to Ndondji’s Title VII
discrimination claims, argues that Ndondji’s DCHRA discrimination claims, excluding his
termination claim, should be dismissed for failure to state a prima facie case of discrimination.
Discrimination and retaliation claims brought under the DCHRA are analyzed in the same
manner as such claims arising under Title VII. Mungin, 116 F.3d at 1553; see also Ali v. Dist. of
Columbia, 697 F. Supp. 2d 88, 93 n.6 (D.D.C. 2010) (“The D.C. Court of Appeals has made
clear that federal case law addressing questions arising in Title VII cases is applicable to the
resolution of analogous issues raised regarding DCHRA claims.”); Wicks v. Am. Transmission
Co. LLC, 701 F. Supp. 2d 38, 43-44 (D.D.C. 2010) (applying the same analysis used in
evaluating Title VII discrimination claims to evaluate DCHRA discrimination claims); Howard
Univ. v. Green, 652 A.2d 41, 45 & n.3 (D.C. 1994). The Court will accordingly apply Title VII
analysis to evaluate Ndondji’s DCHRA claims. For the reasons discussed earlier, then, the Court
agrees that Ndondji has failed to allege discriminatory acts that constitute “adverse employment
actions.” Therefore, his discrimination claims under the DCHRA, other than his claim based on
his termination, will be dismissed for failure to establish a prima facie case of discrimination.
InterPark has not challenged Ndondji’s retaliation claims under DCHRA on this basis, and hence
-32-
they survive.
CONCLUSION
For the reasons stated above, the Court will grant in part and deny in part InterPark’s
motion to partially dismiss Ndondji’s amended complaint. As a result, Ndondji’s case may
move forward only with respect to the following claims: (1) discrimination under Title VII and
the DCHRA based on his termination and (2) retaliation under the DCHRA. A separate Order
accompanies this Memorandum Opinion.
/s/
JOHN D. BATES
United States District Judge
Dated: March 9, 2011
-33-