Samuel A. OLATUNJI, Plaintiff, v. DISTRICT OF COLUMBIA, Defendant.
Civil No. 10-1693 (RCL).
United States District Court, District of Columbia.
July 19, 2013.
David A. Jackson, Juliane T. DeMarco, Office of the Attorney General, District of Columbia, Civil Litigation Division, Washington, DC, for Defendant.
MEMORANDUM OPINION
ROYCE C. LAMBERTH, District Judge.
Plaintiff Samuel A. Olatunji, a black male working for the District of Columbia Department of Transportation (“DDOT“), brought a two-count complaint against defendant District of Columbia alleging racial and sexual discrimination (Count I), and retaliation (Count II), in violation of Title VII of the Civil Rights Act of 1964 and
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 rеlevant 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 ¶ 14; Pl.‘s SMF Resp. ¶ 14; 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 ¶ 15; Pl.‘s SMF Resp. ¶ 15; Ex. 5 to Def.‘s Mot. Summ. J.
In February 2009, Olatunji filed a second Charge of Discrimination with the EEOC. Def.‘s SMF ¶¶ 6-7; Pl.‘s SMF Resp. ¶¶ 6-7; Ex. 6 to Def.‘s Mot. Summ. J. In this Charge, Olatunji alleged he suffered verbal abuse, reduction of job responsibilities, and denial of work assistance as a consequence of racial discrimination and retaliation. Ex. 6 to Def.‘s Mot. Summ. J. The 2009 Charge also alleged that DDOT unjustly demoted Olatunji from a Supervisory Civil Engineer to a Civil Engineer as retaliation for the March 2008 settlement agreement. Id. On June 28, 2010, the EEOC issued a right-to-sue letter, allowing Olatunji to bring suit in federal court on the allegations contained in the 2009 Charge. Pl.‘s SMF ¶ 7; Def.‘s SMF Resp. ¶ 7; Ex. 7 to Def.‘s Mot. Summ. J. On October 4, 2010, Olatunji filed a Complaint in the U.S. District Court for the District of Columbia alleging that the District of Columbia discriminated and retaliated against plaintiff in violation of Title VII of the Civil Rights Act of 1964 аnd
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.”
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,
A party must file a Title VII suit in federal court within 90 days of receiving an EEOC right-to-sue letter.
Plaintiff brought this suit on October 4, 2010—four days after the limitations period ran. Plaintiff concedes this point: “The District apрears to be correct that Plaintiff filed his suit outside of the 90 day window for Title VII. Plaintiff is therefore conceding that claim.” Pl.‘s Opp‘n 5 n. 1. Thus, Defendant is entitled to summary judgment on plaintiff‘s Title VII claims.
B. Plaintiff Has No Viable Claims Under 42 U.S.C. § 1981
While conceding the untimeliness of his Title VII claims, plaintiff argues that he has stated a claim under
1. Legal Standard under Section 1981
Section 1981 protects the rights of all persons to, inter alia, “make and enforce contracts.”
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, 95 S.Ct. 1716, 44 L.Ed.2d 295 (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,
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, 101 S.Ct. 1089, 67 L.Ed.2d 207 (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, 93 S.Ct. 1817, 36 L.Ed.2d 668 (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 plaintiff succeeds, “the burden shifts to the defendant to articulate some legitimate, nondiscrimina-tory оr non-retaliatory reason justifying its
Nevertheless, “Section 1981 is not coextensive in its coverage with Title VII.” Johnson, 421 U.S. at 460, 95 S.Ct. 1716. 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, 96 S.Ct. 1961, 48 L.Ed.2d 402 (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, 109 S.Ct. 2702, 105 L.Ed.2d 598 (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 established its own remedial schemе.” Id. at 732, 109 S.Ct. 2702. After considering legislative history, the Court stated that “Congress intended that the explicit remedial provisions of [
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, 98 S.Ct. 2018. 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 govеrnment‘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.
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 at 109–10. “[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, 95 S.Ct. 1716. 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 thе 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 launсhes 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 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, 109 S.Ct. 2702).
Last year, Judge Bates of this Court considered whether Section 1981 conferred a private right of action against
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 under42 U.S.C. § 1981 .“), Arendale v. City of Memphis, 519 F.3d 587, 599 (6th Cir.2008) (same), Bolden v. City оf 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 amended42 U.S.C. § 1981 contains an implied cause of action against state actors, thereby overturning Jett‘s holding that42 U.S.C. § 1983 provides the exclusive remedy against state actors for the violation of rights under42 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, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975) that has since been strongly disfavored by the Supreme Court, Alexander v. Sandoval, 532 U.S. 275, 286-87, 121 S.Ct. 1511, 149 L.Ed.2d 517 (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, 98 S.Ct. 2018, and its progeny. See, e.g., Jett, 491 U.S. at 735-36, 109 S.Ct. 2702; 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
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 doеs not mention § 1983 anywhere in his Complaint or Opposition Brief, or even 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 а municipal policy or custom.” Atchinson v. District of Columbia, 73 F.3d 418, 422 (D.C.Cir.1996). 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 v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Plaintiff has com-pletely failed to state a claim against the District of Columbia because he cannot sue directly undеr § 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
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, 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,
A separate Order consistent with this Memorandum Opinion shall issue this date.
ROYCE C. LAMBERTH
United States District Judge