                   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
