           SUMMARY OPINION AND ORDER; NOT INTENDED FOR PUBLICATION


                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

JAMAN CHOWDHURY,

                       Plaintiff,

                       v.                             Civil Action No. 08-cv-2250 (RLW)

HILTON HOTELS CORP., et al.,

                       Defendants.

                                    MEMORANDUM OPINION

       This matter is before the Court on Defendants’ Motion for Summary Judgment (Docket

No. 12). Plaintiff Jaman Chowdhury has asserted four causes of action against Defendants.

Against Defendant Hilton Hotels Corporation, Plaintiff asserts: employment discrimination in

violation of 42 U.S.C. § 1981 (Count I) and negligent supervision (Count IV). Against all

Defendants, Plaintiff asserts violations of the D.C. Human Rights Act (“DCHRA”) (Count II)

and common law invasion of privacy (Count III).

       For the following reasons, Defendants’ Motion is DENIED as to Count I, GRANTED in

part and DENIED in part as to Count II, and GRANTED as to Counts III and IV. For purposes

of this ruling, the Court will assume that the reader is familiar with the factual assertions and

arguments made by the parties, and will not recite those again here.

                                            ANALYSIS

    A. Standard of Review

       Summary judgment is appropriate when the moving party demonstrates that there is no

genuine issue as to any material fact and that the moving party is entitled to judgment as a matter

of law. See Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009) (citing Fed. R. Civ. P. 56(c)

and Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986)). A genuine issue of material
                                                  1
 
           SUMMARY OPINION AND ORDER; NOT INTENDED FOR PUBLICATION


fact exists if the evidence “is such that a reasonable jury could return a verdict for the nonmoving

party.” Anderson, 477 U.S. at 248. A party, however, must provide more than “a scintilla of

evidence” in support of its position; the quantum of evidence must be such that a jury could

reasonably find for the moving party. Id. at 252.

    B. Count I—Section 1981 promotion discrimination

       Defendant Hilton argues that it is entitled to summary judgment on Count I because

Plaintiff bases this claim solely on national origin discrimination, and “[c]laims based on the

place or nation of the plaintiff’s origin are not covered” by 42 U.S.C. § 1981. Mem. at 13.

Hilton relies solely on Plaintiff’s deposition testimony, in which Plaintiff—in response to a

question posed by Defendants’ counsel—answered that his discrimination complaint was based

on the fact that he was foreign-born. Plaintiff responds that his claim is based on the “racial and

ethnic characteristics of his national origin.” Opp. at 4. Plaintiff relies on his Complaint, the

record, and a declaration that Plaintiff submitted (over Defendants’ objection) for the first time

with his Opposition.

       The Court agrees with Defendants that, ordinarily, a party cannot submit a declaration

after close of discovery and in opposition to a motion for summary judgment that contradicts its

deposition testimony. Plaintiff’s response to a few leading questions during his deposition that

purported to summarize the basis of his claims is not, however, dispositive on the issue of the

basis of his discrimination complaint. Plaintiff was never asked by defense counsel during the

deposition if he also felt that he was discriminated against because of race. Thus, Plaintiff’s

declaration does not squarely contradict his deposition testimony. Moreover, Plaintiff did allege

in his Complaint that he had been discriminated against due to the “race, color and ethnic

characteristics associated with his national origin . . . .” Complaint ¶ 46. He also alleged that he



                                                  2
 
            SUMMARY OPINION AND ORDER; NOT INTENDED FOR PUBLICATION


is a South Asian man of East Indian and Bangladeshi descent, who was discriminated against

because of race. Complaint ¶¶ 5, 12.

        Plaintiff can certainly rely upon indirect evidence of discrimination to support his Section

1981 discrimination claim, and the circumstances of the FBI tip and the harassment (accusations

of terrorist activity) that allegedly followed is sufficient evidence to raise a question of fact as to

whether Plaintiff was discriminated against due to his ethnicity. As the Supreme Court stated in

Saint Francis College v. Al-Khazraji, 481 U.S. 604, 613 (1987):

                Based on the history of § 1981, we have little trouble in concluding
                that Congress intended to protect from discrimination identifiable
                classes of persons who are subjected to intentional discrimination
                solely because of their ancestry or ethnic characteristics. Such
                discrimination is racial discrimination that Congress intended §
                1981 to forbid, whether or not it would be classified as racial in
                terms of modern scientific theory. The Court of Appeals was thus
                quite right in holding that § 1981, at a minimum, reaches
                discrimination against an individual because he or she is
                genetically part of an ethnically and physiognomically distinctive
                sub-grouping of homo sapiens. It is clear from our holding,
                however, that a distinctive physiognomy is not essential to qualify
                for § 1981 protection. If respondent on remand can prove that he
                was subjected to intentional discrimination based on the fact that
                he was born an Arab, rather than solely on the place or nation of
                his origin, or his religion, he will have made out a case under §
                1981.

Id. (internal quotation marks and citations omitted). Thus, though Plaintiff’s evidence on this

claim is somewhat weak, there is enough evidence to allow this claim to go to a jury. The Court

will deny summary judgment on this claim.

    C. Count II-Plaintiff’s Claims Under the DCHRA

        Plaintiff asserts two theories of discrimination under the DCHRA: failure to promote and

hostile work environment. The Court will address each claim in turn. First, Plaintiff alleges that


                                                   3
 
                      SUMMARY OPINION AND ORDER; NOT INTENDED FOR PUBLICATION


Defendants unlawfully failed to promote him on the basis of age and national origin in 1999 and

then again in 2007. Defendants argue that they are entitled to summary judgment on this claim.

The Court agrees.

              At the outset, Defendants correctly argue—and Plaintiff does not dispute—that Plaintiff

cannot assert a cause of action based on Defendants’ failure to promote him in 1999 because

such claims are time-barred under the DCHRA. See D.C. Code § 2-1403.16(a) (2001) (stating

that a private cause of action under the DCHRA should be filed “within one year of the unlawful

discriminatory act[] or the discovery thereof . . . .”). Thus, Defendants are entitled to summary

judgment on all claims arising out of the 1999 failure to promote.

              Defendants are also entitled to summary judgment on Plaintiff’s claim that Defendants

unlawfully failed to promote him in 2007 on the basis of his age and national origin. The facts

are undisputed that Plaintiff knew about the 2007 position and neither applied for it nor was

eligible because he had recently been suspended. Either factor, standing alone, is sufficient to

defeat Plaintiff’s claim. See Stella v. Mineta, 284 F.3d 135, 139 (D.C. Cir. 2002) (holding that

an element of a prima facie case of discriminatory non-promotion is that plaintiff “applied for

and was denied an available position for which he/she was qualified.”); Lathram v. Snow, 336

F.3d 1085, 1089 (D.C. Cir. 2003) (holding that Plaintiff’s failure to apply for position defeated

her claim);1 Brookens v. Solis, 616 F. Supp. 2d 81, 94 (D.D.C. 2009) (holding that summary

judgment was proper where plaintiff failed to establish he was qualified for the position).

Plaintiff has failed to make his prima facie case on this claim and, thus, Defendants are entitled

to summary judgment. Even assuming Plaintiff was qualified and had applied, the undisputed

                                                            
1
         Plaintiff argues that, under the exception mentioned in Lathram, Plaintiff was not
required to apply for the job to make out a prima facie claim because he was aware that applying
would be futile. The facts of this case, particularly Plaintiff’s subjective belief that it would be
futile to apply, without more, do not warrant invoking the exception.
                                                               4
 
            SUMMARY OPINION AND ORDER; NOT INTENDED FOR PUBLICATION


facts reflect that there was only a six-year age difference between Plaintiff and the successful

applicant, who also was foreign-born. Plaintiff has failed to raise enough of a dispute as to any

of the relevant facts to warrant sending this case to the jury. See Kelly v. Hairston, 605 F. Supp.

2d 175, 180 (D.D.C. 2009); McFarland v. George Washington Univ., 935 A.2d 337, 347 (D.C.

2007).

         Defendants are not entitled to summary judgment, however, as to Plaintiff’s theory of

hostile work environment. Plaintiff has raised enough issues of fact regarding alleged abusive

conditions in the workplace to allow the case to go to a jury. The Defendants’ witnesses concede

that the FBI interview was considered to be a confidential, personnel-type matter. Yet, Plaintiff

has raised a question of fact as to whether Defendant allowed the matter to become known to

other employees. Although Defendants attempt to narrowly construe Plaintiff’s hostile work

environment claim as one not being based on a protected class, Defendants miss the mark. The

alleged threats and taunting that Plaintiff received from other employees could be inferred to be

based on Plaintiff’s ethnicity and/or his foreign-born status. Thus, though the evidence in

Plaintiff’s favor is somewhat weak, there is enough evidence to allow this claim to go to a jury,

and the Court will deny summary judgment on this claim.

    D. Count III—Common Law Invasion of Privacy/False Light

         Defendants argue that they are entitled to summary judgment on Count III because the

evidence is insufficient to establish a claim for false light. The Court agrees. Plaintiff has failed

to establish that Defendants are liable given the failure to prove, by competent evidence, the

required elements of false statements and “publicity.” See Shipkovitz v. The Washington Post

Co., 571 F. Supp. 2d 178, 183 (D.D.C. 2008) (quoting Kitt v. Capital Concerts, Inc., 742 A.2d

856, 859 (D.C. 1999) (stating that the elements of a claim of false light in the District of

Columbia are: 1) publicity; 2) about a false statement, representation or imputation; 3)
                                                  5
 
                      SUMMARY OPINION AND ORDER; NOT INTENDED FOR PUBLICATION


understood to be of and concerning the plaintiff, and 4) which places the plaintiff in a false light

that would be offensive to a reasonable person). Although Plaintiff asserts that there is “ample

evidence” of publicity and false statements, Plaintiff fails to cite to anything beyond mere

unsupported conclusory allegations. This is simply not enough to overcome summary

judgment.2

       E. Count IV—Negligent Supervision

              Finally, Defendants argue that they are entitled to summary judgment on Plaintiff’s

negligent supervision claim. As Defendants correctly point out, and as Plaintiff concedes,

Plaintiff cannot base a claim for negligent supervision on the alleged statutory DCHRA

violations. See Griffin v. Acacia Life Ins. Co., 925 A.2d 564, 579 (D.C. 2007); see also Marshall

v. Honeywell Technology Solutions, Inc., 536 F. Supp. 2d 59, 70 (D.D.C. 2008). Moreover,

although Plaintiff contends that his claim for negligent supervision is actually based on his

common law invasion of privacy claim (Count III), the Court has already granted summary

judgment to Defendants on that claim for insufficiency of the evidence. Accordingly, because

Plaintiff’s surviving causes of action are statutory, there are no remaining common law claims

upon which to base Count IV. Accordingly, Defendants are entitled to summary judgment.




                                                            
2
        Although the Court has denied summary judgment on Plaintiff’s hostile work
environment claim based in part on the same alleged statements, the elements necessary to prove
the two claims are substantially different. Most notably, the element of “publicity” required to
prove false light requires a much higher showing than the one Plaintiff has made in this case.
See Steinbuch v. Cutler, 463 F. Supp. 2d 1, 3 (D.D.C. 2006) (stating that, in the District of
Columbia, whereas “publication” necessary to prove defamation can mean communication to
one person, “publicity” necessary to prove false light means “that the matter is made public, by
communicating it to the public at large, or to so many persons that the matter must be regarded
as substantially certain to become one of public knowledge.”) (quoting Restatement (Second) of
Torts § 652D (1977)).
                                                               6
 
           SUMMARY OPINION AND ORDER; NOT INTENDED FOR PUBLICATION


                                         CONCLUSION

       For the foregoing reasons, Defendants’ Motion for Summary Judgment is denied as to

Count I, granted in part and denied in part as to Count II, and granted as to Counts III and IV.

An order accompanies this Memorandum.

Date: August 25, 2011                                           /s/
                                                     ROBERT L. WILKINS
                                                     United States District Judge




                                                 7
 
