UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
______________________________ ) JUOCHI IWEALA, ) ) Plaintiff, ) ) v. ) Civil Action No. 04-2067 (RWR) ) OPERATIONAL TECHNOLOGIES ) SERVICES, INC., ) ) Defendant. ) ______________________________)
MEMORANDUM OPINION AND ORDER
Plaintiff Juochi Iweala, a black female from Nigeria who was
pregnant twice while employed by defendant Operational
Technologies Services, Inc. (“OTS”) brings this action under
Title VII, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981,
alleging that OTS discriminated against her because of her race,
national origin, and pregnancies. After the close of discovery,
OTS moved for summary judgment. Because Iweala failed to exhaust
her administrative remedies under Title VII with respect to
claims challenging discrete acts alleged to have occurred more
than 300 days before she filed her administrative charge, summary
judgment will be granted for the defendant with respect to such
untimely claims. Because Iweala may bring her claims regardless
of her visa status during her employment with OTS and because
Iweala has created genuine factual disputes with respect to her
timely disparate treatment, retaliation, and hostile work -2-
environment claims, the defendant’s motion for summary judgment
will be denied in all other respects.
BACKGROUND
Iweala, who worked for OTS as a Computer Systems
Analyst/Programmer from 2001 until she was terminated on March 5,
2003, brings her amended complaint under Title VII and § 1981,
alleging claims of disparate treatment, retaliation, and hostile
work environment. She alleges that among other allegedly
discriminatory actions, her supervisors excluded her from
meetings, placed her on the bottom of every leader chart for
assignments, reprimanded her when other similarly-situated
individuals were treated more favorably, treated her rudely,
subjected her to profanity, removed her from service on OTS’ help
desk, and ultimately terminated her because of her race, national
origin, and pregnancy status. (Am Compl. ¶¶ 32-35; 38-51.) In
addition, Iweala contends that she experienced retaliation after
she repeatedly complained to her direct supervisors and other OTS
management about her discriminatory treatment. (Id. ¶¶ 62-64.)
OTS has moved for summary judgment contending that Iweala is
precluded from bringing her claims under Title VII and § 1981
because Iweala’s immigration status made her ineligible for
employment while she was employed at OTS. In the alternative,
OTS argues that to the extent Iweala’s visa status does not
preclude her claims, Iweala has not raised a genuine dispute of -3-
material fact and OTS is entitled to judgment as a matter of law
with respect to all claims.
DISCUSSION
Federal Rule of Civil Procedure 56(c) provides that summary
judgment may be granted “if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there
is no genuine issue as to any material fact and that the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c). A dispute about a material fact is “genuine . . . if the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). Facts in dispute are material if they are
capable of affecting the outcome of the suit under governing law.
Id. In considering a motion for summary judgment, a court must
view all evidence and inferences to be drawn from the underlying
facts in the light most favorable to the party opposing the
motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986).
I. IWEALA’S VISA STATUS
OTS first argues that Iweala has no standing to bring her
claims under Title VII or § 1981 because her visa status made her
employment with OTS unlawful. (Def.’s Mem. in Support of its
Mot. For Summ. J. (“Def.’s Mem.”) at 8.) OTS relies on a line of
cases from the Fourth Circuit: Egbuna v. Time-Life Libraries, -4-
Inc., 153 F.3d 184 (4th Cir. 1998), cert. denied, 525 U.S. 1142
(1999), Chaudhry v. Mobile Oil Corp., 186 F.3d 502 (4th Cir.
1999), and Reyes-Gaona v. N.C. Growers Ass’n, 250 F.3d 861 (4th
Cir. 2001). In Egbuna, the Fourth Circuit held that a plaintiff
is entitled to remedies under Title VII “only upon a successful
showing that the applicant was qualified for employment.” 153
F.3d at 187. Egbuna explained that when a job “applicant is an
alien, being ‘qualified’ for the position is not determined by
the applicant’s capacity to perform the job -- rather, it is
determined by whether the applicant was an alien authorized for
employment in the United States at the time in question.” Id.
The Fourth Circuit reaffirmed its position the following year in
Chauhdry, stating that a “foreign national is qualified for
employment,” and therefore entitled to Title VII protection, “if
‘the applicant was an alien authorized for employment in the
United States at the time in question.’” 186 F.3d at 504
(quoting Egbuna, 153 F.3d at 187).
In addition, OTS also argues that Iweala’s claims should be
barred under the reasoning of the Supreme Court’s decision in
Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002). In
Hoffman, an employer challenged the NLRB’s decision to award
backpay to undocumented foreign nationals under the National
Labor Relations Act. Hoffman held that the Immigration Reform
and Control Act (“IRCA”) of 1986 precluded the NLRB from awarding -5-
backpay to undocumented foreign nationals because awarding
backpay to them “would unduly trench upon explicit statutory
prohibitions critical to federal immigration policy . . . [and]
encourage the successful evasion of apprehension by immigration
authorities, condone prior violations of the immigration laws,
and encourage future violations.” 535 U.S. at 151. Nonetheless,
in rejecting the backpay award, the Court noted that their
decision did “not mean that the employer [got] off scot-free”
because the Board had “already imposed other significant
sanctions.” Id. at 152.
In contrast to the Fourth Circuit’s rule, in Rivera v.
NIBCO, Inc., 364 F.3d 1057 (11th Cir. 2004), the Eleventh Circuit
concluded that the protections of Title VII do apply to
undocumented foreign nationals. In Rivera, the plaintiffs,
employees of defendant NIBCO, Inc., alleged claims of employment
discrimination based on national origin under Title VII. Id. at
1061. NIBCO filed an interlocutory appeal challenging a
protective order barring it “from using the discovery process to
inquire into the plaintiffs’ immigration status and eligibility
for employment.” Id. Although NIBCO conceded that Title VII
applies to undocumented foreign nationals, the Eleventh Circuit,
in recognizing NIBCO’s concession, explained that NIBCO’s
concession was “consistent with what [they had] long assumed to
be the law of [that] circuit.” 364 F.3d at 1064 n.4 (citing EEOC -6-
v. Hacienda Hotel, 881 F.2d 1054, 1517 n.10 (9th Cir. 1989)).
The Eleventh Circuit also questioned whether Hoffman’s limitation
on backpay under the NLRA should be extended to bar backpay
awards under Title VII, noting the differences between scope of
private actions and remedies available under each statute. See
id. at 1066-70. Ultimately, it determined that it “need not
decide the Hoffman question” at that time because the question of
whether undocumented foreign nationals are entitled to backpay
“‘goes to the issue of damages, not liability.’” Id. at 1069
(quoting Hashimoto v. Dalton, 118 F.3d 671, 676 (9th Cir. 1997)).
Moreover, in Agri Processor Co., Inc. v. NLRB, 514 F.3d 1
(D.C. Cir. 2008), the D.C. Circuit considered whether after IRCA
and Hoffman, undocumented workers are employees covered under the
NLRA’s definition of employee. The court of appeals found that
“nothing in IRCA’s text alter[ed] the NLRA’s [expansive]
definition of ‘employee,’”1 which had been previously interpreted
1 Under the NLRA, [t]he term “employee” shall include any employee, and shall not be limited to the employees of a particular employer, unless th[e] subchapter explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual having the status of an independent contractor, or any individual employed as a supervisor, or any individual -7-
to include undocumented workers. Agri Processor Co., 514 F.3d at
4. Thus, applying the rule that “‘where two statutes are capable
of co-existence, it is the duty of the courts, absent a clearly
expressed congressional intention to the contrary, to regard each
as effective[,]’” the court of appeals found that undocumented
foreign workers were covered under the NLRA’s definition of
employee. Id. at 4-5 (quoting Ruckelshaus v. Monsanto, 467 U.S.
986, 1018 (1984)) (internal quotation marks omitted). The court
expressly rejected the argument that the Supreme Court’s decision
in Hoffman excluded undocumented foreign workers from protection
under the NLRA, noting that the Supreme Court’s decision in
Hoffman “addressed only what remedies the NLRB may grant
undocumented aliens when employers violate their rights under the
NLRA,” and the Court “explicitly declined to revisit [its
previous] holding that undocumented aliens are employees under
the NLRA.” Id. at 7.
Like the NLRA’s definition of employee, Title VII’s
definition of employee broadly states that “[t]he term ‘employee’
means an individual employed by an employer,” except for a few
narrow exceptions not applicable in this case. 42 U.S.C.
§ 2000e(f). Thus, Title VII, by its sweeping language, would
employed by an employer subject to the Railway Labor Act, as amended from time to time, or by any other person who is not an employer as herein defined. 29 U.S.C. § 152(3). -8-
seem to encompass all employees regardless of immigration and
visa status. Similarly, § 1981 affords “all persons within the
jurisdiction of the United States” the right “to make and enforce
contracts.” 42 U.S.C. § 1981. OTS identifies no congressional
action clearly intending to limit the scope of these broad
statutes to exclude foreign nationals without proper work
authorizations. Following the reasoning of Agri Processor,
because neither Title VII nor IRCA clearly expresses Congress’s
intent to exclude foreign nationals without proper work visas
from Title VII’s coverage, Iweala’s visa status and eligibility
for employment with OTS should not preclude her from protection
under Title VII, although her visa status and eligibility for
employment may limit her remedies. It is enough at this stage to
conclude that Iweala’s claims may proceed regardless of whether
her visa status made her employment with OTS unlawful, and it is
unnecessary to sort out what remedies may or may not be available
to her before any liability has been conclusively determined.
II. EXHAUSTION
OTS argues that it is entitled to judgment on all of
Iweala’s claims arising from adverse actions occurring more than
300 days before Iweala filed her charge with the EEOC. In her
opposition to OTS’ motion, Iweala does not respond to this
argument. “‘It is well understood in this Circuit that when a
plaintiff files an opposition to a motion to dismiss addressing -9-
only certain arguments raised by the defendant, a court may treat
those arguments that the plaintiff failed to address as
conceded.’” Peter B. v. CIA, Civil Action No. 06-1652 (RWR),
2009 WL 1529211, at *5 (D.D.C. June 1, 2009) (quoting Hopkins v.
Women’s Div., Gen. Bd. of Global Ministries, 238 F. Supp. 2d 174,
178 (D.D.C. 2002)). Thus, Iweala has conceded that any Title VII
claims arising from adverse actions occurring more than 300 days
before April 21, 2003 -- the date she filed her administrative
charge -- are barred and summary judgment will be granted for OTS
with respect to any Title VII claim based upon an adverse action
that occurred more than 300 days before Iweala filed her EEOC
complaint.
III. DISPARATE TREATMENT
Claims of disparate treatment under Title VII are analyzed
under the familiar burden-shifting framework established by
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The same
framework applies to § 1981 claims. See Carney v. Am. Univ., 151
F.3d 1090, 1092-93 (D.C. Cir. 1998) (explaining that “[i]n order
to evaluate claims under 42 U.S.C. § 1981, . . . courts use the
three-step McDonnell Douglas framework for establishing racial
discrimination under Title VII”); Prince v. Rice, 453 F. Supp. 2d
14, 21 (D.D.C. 2006). At the summary judgment stage, a plaintiff
carries the initial burden to establish a prima facie case of
discrimination. McDonnell Douglas, 411 U.S. at 802. To -10-
establish a prima facie discrimination case, the plaintiff must
show 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.” Vickers v.
Powell, 493 F.3d 186, 194 (D.C. Cir. 2007) (internal quotations
and citations omitted). Establishing a prima facie case “in
effect creates a presumption that the employer unlawfully
discriminated against the employee.” Texas Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 254 (1981). If the plaintiff
meets the burden of establishing a prima facie case, the burden
shifts from the plaintiff-employee to the defendant-employer, who
must then rebut the presumption of discrimination by producing
admissible evidence showing a legitimate, nondiscriminatory
reason for the adverse action taken against the employee.
Burdine, 450 U.S. at 255-56; McDonnell Douglas, 411 U.S. at 802.
Once the employer carries his burden, the presumption raised by
the prima facie case vanishes and the employee then bears the
burden of proving discrimination by showing that the defendant’s
nondiscriminatory reason was pretextual and “that the employer
intentionally discriminated against the employee on the basis of
race, color, religion, sex, or national origin[.]” See Brady v.
Office of the Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir.
2008). -11-
The court of appeals has explained that “‘the prima facie
case is a largely unnecessary sideshow’” once an employer asserts
a legitimate, nondiscriminatory reason for an adverse employment
action. Adeyemi v. District of Columbia, 525 F.3d 1222, 1226
(D.C. Cir. 2008) (quoting Brady, 520 F.3d at 494). If an
employer has offered a legitimate, nondiscriminatory reason for
the alleged adverse action taken, “the district court must
conduct one central inquiry in considering an employer’s motion
for summary judgment . . . : whether the plaintiff produced
sufficient evidence for a reasonable jury to find that the
employer’s asserted non-discriminatory reason [for an adverse
action] was not the actual reason and that the employer
intentionally discriminated against the plaintiff on a prohibited
basis.” Id. at 1226. In determining whether a plaintiff has
provided sufficient evidence of discrimination, a court may
consider “‘(1) the plaintiff’s prima facie case; (2) any evidence
the plaintiff presents to attack the employer’s proffered
explanations for its actions; and (3) any further evidence of
discrimination that may be available to the plaintiff (such as
independent evidence of discriminatory statements or attitudes on
the part of the employer).’” Dunaway v. Int’l Bhd. of Teamsters,
310 F.3d 758, 763 (D.C. Cir. 2002) (quoting Waterhouse v.
District of Columbia, 298 F.3d 989, 993 (D.C. Cir. 2002)). One
way a plaintiff may show an “employer’s stated reason for [an] -12-
employment action was not the actual reason” is by “produc[ing]
evidence suggesting that the employer treated other employees of
a different race, color, religion, sex, or national origin more
favorably in the same factual circumstances.” Brady, 520 F.3d at
495. In addition, inconsistent justifications for terminating an
employee can raise a genuine issue of material fact that
precludes summary judgment. See EEOC v. D.C. Pub. Schools, 277
F. Supp. 2d 44, 51 (D.D.C. 2003).
In this case, there is no question that Iweala’s status as a
black Nigerian female who was pregnant at the time she was
terminated places her in protected groups, nor is there any
dispute that her termination is an actionable adverse employment
action. It is unclear from Iweala’s filings which alleged
actions by OTS beyond her termination she asserts as
discriminatory adverse actions that are individually actionable
as significant changes in her employment status; which ones she
concedes, if any, are not individually actionable discrete acts,
but cumulatively support a hostile work environment claim; or
whether she is attempting to preserve her arguments in the
alternative. For Iweala’s claims of disparate treatment on the
basis of race, national origin, and pregnancy, the defendant’s
motion focuses primarily on whether she has stated a claim with
respect to her termination, with little discussion of what other
alleged actions may or may not have been sufficiently substantial -13-
changes in the terms and conditions of Iweala’s employment to be
actionable as discrete acts. Because OTS’s motion does not
clearly put Iweala or the court on notice that it seeks a ruling
on whether Iweala has provided sufficient evidence demonstrating
that any other alleged action taken against her besides her
termination was a discrete act individually supporting a claim on
its own, OTS’ motion will be construed as challenging whether
Iweala has provided sufficient evidence upon which a reasonable
jury could conclude that her termination was the result of race,
national origin, or pregnancy discrimination.
OTS has offered legitimate, nondiscriminatory reasons why it
terminated Iweala’s employment. It alleges that Iweala was
terminated for poor work performance, including her missing
deadlines and turning in assignments with errors, and her
“inability to behave in a professional manner and accept
constructive criticism regarding her work.” (Def.’s Mot. for
Summ. J. at 21; Pl.’s Opp’n, Ex. 2, Lobb Dep. Tr. 138:12-18.)
Thus, the critical question is whether Iweala has put forth
sufficient evidence for a reasonable jury to find that OTS’
asserted reason for her termination was pretextual and the actual
reason was her race, national origin, or pregnancy status.
Iweala has identified several pieces of evidence to show
that OTS’ alleged reasons for terminating her were pretextual.
First, she submits her 2002 annual performance appraisal -14-
reflecting performance ratings of “very good” in most areas.
(Pl.’s Opp’n, Ex. 9, Performance Appraisal.) Iweala also
provides evidence that there were two other employees who caused
a disruption in the workplace who were not terminated. (See
Pl.’s Opp’n, Ex. 10, Brown Dep. Tr. 135:6-10.) Finally, Iweala
also submits her own testimony stating that she did not cause a
disturbance in the office on the day she was terminated. (See
Pl.’s Opp’n, Ex. 1 (“Iweala Dep. Tr.”) 447:1-449:15.)
In addition, Iweala provides other circumstantial evidence
in support of her disparate treatment claims. She claims that
she was excluded from meetings to which other similarly-situated
employees were invited, and that she was disciplined for missing
a day of work when other similarly-situated individuals were not
disciplined. Iweala also alleges that her supervisor, Joe
Castle, removed her from help desk service because she had an
accent. (Iweala Dep. Tr. 281:7-20.) Finally, Iweala alleges
that she notified her supervisors about her pregnancy in October
of 2002 and that she complained about her pregnancy on or around
March 3, 2003, just before she was terminated. (See Iweala Dep.
Tr. 439:1-16; 442:10-443:19.)
Viewing all of this evidence in the light most favorable to
her, Iweala has carried her burden of identifying evidence upon
which a reasonable jury could conclude that OTS’ stated reasons
for her termination were pretextual and that the actual reason -15-
for her termination was unlawful discrimination. Thus, OTS’
motion for summary judgment will be denied with respect to
Iweala’s claims of disparate treatment.
IV. RETALIATION
Beyond her disparate treatment claims, Iweala also alleges a
hostile work environment claim and a retaliation claim. First,
she alleges that her termination was unlawful retaliation against
her because she complained about discrimination to a variety of
supervisors at OTS. (Pl.’s Opp’n at 5-6.) For her retaliation
claim, Iweala “must show 1) that she engaged in a statutorily
protected activity; 2) that the employer took an adverse
personnel action; and 3) that a casual connection existed between
the two.” Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999)
(internal quotation marks omitted). “Temporal proximity” between
a complaint of discrimination and an adverse action, such as
termination, can “support a jury’s finding of a causal link.”
Patterson v. Johnson, 505 F.3d 1296, 1299 (D.C. Cir. 2007). In
support of her retaliation claim, Iweala provides her answer to
OTS’ interrogatory and her deposition testimony stating that she
complained to a variety of individuals about alleged
discriminatory conduct toward her, including Diane Brown, Joseph
Castle, and Gerald Lobb -- all of whom Iweala alleges were
involved in the decision to terminate her -- and to OTS’s Vice
President of Operations, Pearlis Johnson. (Pl.’s Opp’n, Ex. 5, -16-
Interrog. 2; see Iweala Dep. Tr. 442:19-22, 449:11-450:11; Pl.’s
Opp’n, Ex. 3, Johnson Dep. Tr. 22:18-25:21.) Notably, in her
answers to OTS’s interrogatories, Iweala contends that she
complained repeatedly to Lobb in February, shortly before her
termination. (See Pl.’s Opp’n, Ex. 5, Interrog. 2.) In
addition, as is discussed above, Iweala has provided evidence
tending to show that OTS’ proffered reasons for her termination
was pretextual. In light of the temporal proximity between
Iweala’s complaints of discrimination and her termination, Iweala
has identified sufficient evidence in support of her retaliation
claim to withstand OTS’ motion for summary judgment.
V. HOSTILE WORK ENVIRONMENT
Iweala also alleges a hostile work environment claim. OTS
contends that Iweala failed to properly exhaust her
administrative remedies with respect to any hostile work
environment claim by not alleging it in the charge of
discrimination she filed with the D.C. Office of Human Rights and
the EEOC. “[A] Title VII lawsuit following the EEOC charge is
limited in scope to claims that are like or reasonably related to
the allegations of the charge and growing out of such
allegations.” Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir.
1995) (internal quotation marks omitted). However, the court of
appeals has cautioned that “the administrative charge requirement
should not be construed to place a heavy technical burden on -17-
‘individuals untrained in negotiating procedural labyrinths[.]’”
Id. (quoting Loe v. Heckler, 768 F.2d 409, 417 (D.C. Cir. 1985)).
Nonetheless, “the requirement of some specificity in a charge is
not a mere technicality.” Id. (internal quotation marks
omitted).
When Iweala first filed her charge of discrimination on
April 21, 2003, she checked the boxes for discrimination on the
basis of sex, race and national origin, and retaliation. She
then filed an amended charge on May 8, 2003, where she checked
the boxes for discrimination on the basis of sex and race,
retaliation, and other, although she did not clearly specify what
claim she alleged as falling within the “other” category. She
also checked the box for a continuing action each time. In her
first charge, she states that “she was intentionally isolated
from attending most of the analyst/programmers meetings several
times” between December 2001 and May 2002. (Def.’s Mot., Ex. H,
Apr. 21, 2003 Charge.) She also states that she was “subjected
to different terms and conditions of employment regarding
discipline, tardiness, and workload.” (Id.) In her second
charge, she states that she was harassed and discriminated
against because of her first pregnancy, and that when she was
visibly pregnant with her second child, her supervisors increased
her workload and shortened her deadlines. (Def.’s Mot., Ex. H,
May 8, 2003 Charge.) Although Iweala did not expressly state she -18-
was alleging a hostile work environment claim, her administrative
charges identify the facts underlying her claim, including her
exclusion from meetings and increased workload. Thus, her
hostile work environment claim is at least reasonably related to
the allegations in her administrative charge, and she has
properly exhausted her administrative remedies with respect to
her hostile work environment claim.
“When the workplace is permeated with discriminatory
intimidation, ridicule, and insult . . . that is sufficiently
severe or pervasive enough to alter the conditions of the
victim’s employment and create an abusive working environment,
. . . Title VII is violated.” Harris v. Forklift Sys., Inc., 510
U.S. 17, 21 (1993) (internal citation and quotation marks
omitted). In Faragher v. City of Boca Raton, 524 U.S. 775
(1998), the Supreme Court made clear, however, that for a
successful hostile work environment claim, “conduct must be
extreme to amount to a change in the terms and conditions of
employment.” Id. at 788. Thus, “offhand comments and isolated
incidents (unless extremely serious) will not amount to
discriminatory changes in the ‘terms and conditions of
employment.’” Id.; see Holbrook v. Reno, 196 F.3d 255, 262-63
(D.C. Cir. 1999) (concluding that no reasonable jury could have
found that an allegedly “abusive” four-hour interview alone
altered the conditions of the plaintiff’s employment where the -19-
plaintiff failed to show any post-interview changes to her work
environment). In addition, “in order to be actionable under the
statute, a [hostile work] environment must be both objectively
and subjectively offensive, one that a reasonable person would
find hostile or abusive, and one that the victim in fact did
perceive to be so.” Faragher, 524 U.S. at 787. Determining
whether an employee’s work environment is hostile requires
examining “all the circumstances, including the frequency of the
discriminatory conduct; its severity; whether [such conduct] is
physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with the
employee’s work performance.” Vickers, 493 F.3d at 197 (internal
quotation marks omitted).
Here, Iweala alleges that she experienced a hostile work
environment when her supervisors increased her workload and
shortened her deadlines so that she could not complete her
assignments, “ostracized” her and treated her “in a rude manner,”
repeatedly excluded her from meetings to which she should have
been invited, removed her from serving on OTS’ help desk,
reprimanded her on one occasion for failing to show up for work
because of snow when others were not reprimanded, and subjected
her to profanity. (Pl.’s Opp’n at 14.) Iweala’s main evidence
in support of her allegations is her own deposition testimony
attesting to her treatment and stating that she perceived the -20-
alleged actions taken against her as the result of her race,
national origin, and pregnancy status, and that these actions
interfered with the conditions of her employment. (See Iweala
Dep. Tr. 197:1-198:15, 277:10-281:20, 286:12-288:12, 434:4-12.)
Iweala also provides the deposition testimony of her former
supervisor Lionel Mew conceding that profanity was sometimes used
in the workplace. (Pl.’s Opp’n, Ex. 12, Mew Dep. Tr. 65:1-19.)
Although, as OTS points out, absent from Iweala’s allegations is
any evidence of overt comments about her race, national origin,
or pregnancy status made directly to her, Iweala has provided
other circumstantial evidence, described above, supporting her
allegations that OTS’ actions were motivated by unlawful
discrimination. Thus, Iweala has sufficiently raised a disputed
factual question as to whether an objectively reasonable person
would find Iweala’s workplace to be “permeated with
discriminatory intimidation, ridicule, and insult that [was]
sufficiently severe” to alter the conditions of her employment.
Harris, 510 U.S. at 370 (internal quotation marks omitted).
Accordingly, OTS’ motion for summary judgment on Iweala’s hostile
work environment claim will be denied.
CONCLUSION AND ORDER
Because Iweala has conceded that any claim arising from a
discrete act of discrimination more than 300 days before the
filing of her administrative charge is time-barred, OTS’ motion -21-
for summary judgment will be granted and judgment will be entered
in favor of the defendant with respect to any claim challenging a
discrete act of discrimination that occurred more than 300 days
before Iweala filed her administrative charge with the EEOC. On
the other hand, because Iweala’s claims are not barred by her
visa status at the time of her employment with OTS, and because
she has provided sufficient evidence to raise genuine disputes of
material fact with regard to her disparate treatment,
retaliation, and hostile work environment claims, OTS’ motion for
summary judgment will be denied in all other respects.
Accordingly, it is hereby
ORDERED that the defendant’s motion [31] for summary
judgment be, and hereby is, GRANTED IN PART and DENIED IN PART.
Judgment is ENTERED in favor of the defendant with respect to any
claim challenging a discrete act of discrimination that occurred
more than 300 days before Iweala filed her administrative charge
with the EEOC. The motion is denied in all other respects.
SIGNED this 14th day of July, 2009.
/s/ RICHARD W. ROBERTS United States District Judge