Ndondji v. Interpark, Inc.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

N’SAMBA NDONDJI,1

Plaintiff,
v. Civil Action No. 09-02457 (JDB)

INTERPARK INC.,
INTERPARK HOLDINGS, INC.

Defendants.

MEMORANDUM OPINION

Plaintiff N’samba Ndondji brings this action against his former employer, InterPark

Incorporated, and its parent company, InterPark Holdings Incorporated2 (“collectively

InterPark”), asserting claims of discrimination and retaliation in violation of 42 U.S.C. § 1981,

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and the District

of Columbia Human Rights Act (“DCHRA”), D.C. Code § 2-1401.01 et seq. Now before the

Court is InterPark’s motion to partially dismiss the amended complaint. For the reasons

discussed below, the Court will grant in part and deny in part InterPark’s motion.

BACKGROUND

Ndondji, a black male from Angola, started working on July 28, 1988, as a lobby

attendant for InterPark at the Willard Hotel. Am. Compl. ¶¶ 1-2. During his employment,

1
Ndondji’s name was originally misspelled in the complaint but was corrected in the amended complaint.

2
InterPark argues in a footnote to its filings that InterPark Holdings Inc., the parent company of InterPark
Inc., is not a proper defendant in this case because (1) the parent company did not employ Ndondji, and (2) the
parent company was not properly served with a summons. InterPark Holdings Inc. should file a motion if it seeks to
be dismissed on this basis.

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InterPark transferred him to several different facilities to work as a parking attendant and then

later as an assistant manager. Id. He completed courses for customer service and was

recognized as “employee of the month” several times. Id. ¶¶ 7-8.

As a result of his work, Ndondji claims that he was transferred to assignments “where

others would not go” and “where the company was most busy.” Id. ¶ 9. According to Ndondji,

he would improve the parking situation at each location but received “little or no [pay]

increases” for his efforts. Id. Sometime in 2004, Ndondji was transferred to the 1900 19th

Street N.W. location, which he alleges was one of the “busiest” locations and where some

parking attendants3 caused accidents. Id. ¶ 10. “No one else was interested in taking this

location.” Id. Ndondji alleges that he “immediately improved all areas of operation at this

location,” id. ¶ 11, and focused on improving revenue and decreasing the number of accidents,

id. ¶ 12. Ndondji attempted to improve the performance of attendants by “testing” each one to

determine if they could perform their jobs. Id. ¶ 14. Many employees failed his test, but

management insisted that he continue working with them and “resisted” his efforts to improve

the location. Id.

Although he fails to specify the timing of the alleged discrimination, Ndondji contends

that management placed him in the “worst” and “most difficult locations” and continued to

impose conditions that prevented him from successfully performing his job. Id. ¶¶ 33-34. He

was ordered to “refrain from putting up a ‘Full’ sign even when there were no safe [parking]

spaces available,” id. ¶ 13, and was forced to “overpark” to increase revenue, even though

overparking could lead to more accidents, id. ¶ 36.

3
Ndondji appears to use “attendants” and “assistants” interchangeably throughout the amended complaint.
To be consistent, the Court will use “attendants.”

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 Ndondji also claims that he received “very little support with manpower.” Id. ¶¶ 14-15,

34. Management allegedly failed to provide him with competent attendants and send

replacements when attendants failed to show up or called in sick. Id. ¶ 15. Unlike other workers

who were “similarly situated” and “not Black or of Angolan descent,” he was forced to work

without a reasonable number of attendants and was not allowed to choose the attendants assigned

to his area. Id. ¶ 32a.

Sometime in the beginning of 2006, Ndondji claims that garage and area managers

requested a meeting with corporate human resources department representatives from the

Chicago office to complain about the “ongoing discrimination” against “individuals of African

descent.” Id. ¶ 17. During the summer of 2006, human resources representatives met with

InterPark employees who complained about Melissa Silver-Ward from the human resources

department and Richard Rosenberger, the District General Manager. Id. ¶ 18. These employees

complained that foreign nationals received different treatment than non-foreign nationals and

that Rosenberger had targeted “foreign nationals” for disciplinary action. Id. ¶ 19. Ndondji was

“very vocal” at this meeting and claims that the representatives “promised to investigate and

respond” to the employees’ complaints but never did. Id. ¶ 21.

Ndondji alleges that Silver-Ward then assigned Tony Stevenson, a new manager, to

“observe” and “spy” on him in retaliation for his complaints of discriminatory behavior. Id. ¶¶

40B, 47. Stevenson allegedly made “false statements regarding [his] practices,” id. ¶ 23, and

falsely accused him of taking money and of poor performance, id. ¶¶ 40C, 48. Ndondji claims

that Stevenson’s accusations were untrue and that he actually improved the conditions at the

garage. Id. ¶¶ 24, 42-44. Shortly thereafter, Ndondji was placed on a Performance Improvement

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Plan (“PIP”) for “failing to reduce the accidents and improve revenue.” Id. ¶ 23. Although he

believed he should not have been placed on the PIP, Ndondji maintains that he tried “his

hardest” to make even greater improvements and “gave up lunch and times off to drive when

attendants were unavailable.” Id. ¶ 25. Ndondji claims he never received periodic PIP

evaluations as required and was fired at the end of the PIP and before his scheduled vacation. Id.

¶¶ 26-27, 45. On December 12, 2006, Ndondji was terminated for failing to make

improvements, although he maintains that he was never offered any evidence of his poor

performance. Id. ¶ 27.

Ndondji alleges that he filed a timely charge of discrimination and retaliation with the

Equal Employment Opportunity Commission (“EEOC”) on February 27, 2007 and received an

EEOC right-to-sue letter that was dated September 30, 2009. Id. ¶¶ 28-29. On December 30,

2009, Ndondji filed his case in this Court. Ndondji’s amended complaint is vague in its

allegations and does not distinguish clearly between claims, but the Court discerns the following

claims: (1) discrimination and retaliation claims under section 1981, (2) discrimination and

retaliation claims under Title VII, and (3) discrimination and retaliation claims under DCHRA.

On March 1, 2010, InterPark filed a motion to partially dismiss the complaint and

attached as an exhibit Ndondji’s “Charge of Discrimination” (“DCOHR/EEOC charge”) that he

filed with the D.C. Office of Human Rights (“DCOHR”) on June 4, 2007. Ndondji’s

DCOHR/EEOC charge was cross-filed with the EEOC. On the DCOHR/EEOC charge, Ndondji

checked the box that indicated that he had been discriminated against on the account of his

national origin. He alleged that (1) he had been “unjustly issued a disciplinary write-up” and (2)

“unjustly discharged from employment.” Ndondji filed his opposition to the motion on March

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12, 2010.4 On March 15, 2010, Ndondji filed an amended complaint, and on March 29, 2010,

prior to any discovery, InterPark filed a second motion to partially dismiss the amended

complaint, which is now ripe.

STANDARD OF REVIEW

All that the Federal Rules of Civil Procedure require of a complaint is that it contain “‘a

short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to

‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41,

47 (1957)); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). Although “detailed

factual allegations” are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide

the “grounds” of “entitle[ment] to relief,” a plaintiff must furnish “more than labels and

conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550

U.S. at 555-56; see also Papasan v. Allain, 478 U.S. 265, 286 (1986). “To survive a motion to

dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting

Twombly, 550 U.S. at 570); accord Atherton v. District of Columbia Office of the Mayor, 567

F.3d 672, 681 (D.C. Cir. 2009). A complaint is plausible on its face “when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable

4
Ndondji attached a copy of his EEOC Intake Questionnaire, dated February 27, 2007. Ndondji’s amended
complaint demonstrates that he views the submission of his EEOC Intake Questionnaire as the date when he first
filed a complaint with the EEOC. See Plaintiff’s EEOC Intake Questionnaire, Pl.’s Response, Exh. 1.
The Court considers this motion under Fed. R. Civ. P. 12(b)(6) rather than Fed. R. Civ. P. 56. As a result,
the Court will not consider documents beyond Ndondji’s formal DCOHR/EEOC charge dated June 4, 2007 and will
exclude the EEOC Intake Questionnaire in evaluating InterPark’s motion to dismiss. Even if the Court were to
consider the EEOC Intake Questionnaire, it only reiterates Ndondji’s allegations in his DCOHR/EEOC charge and
would not change the Court’s analysis of this motion.

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for the misconduct alleged.” Iqbal, 129 S. Ct. at 1949. This amounts to a “two-pronged

approach” under which a court first identifies the factual allegations entitled to an assumption of

truth and then determines “whether they plausibly give rise to an entitlement to relief.” Id. at

1950-51.

The notice pleading rules are not meant to impose a great burden on a plaintiff. Dura

Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005); see also Swierkiewicz v. Sorema N.A., 534

U.S. 506, 512-13 (2002). When the sufficiency of a complaint is challenged by a motion to

dismiss under Rule 12(b)(6), the plaintiff’s factual allegations must be presumed true and should

be liberally construed in his or her favor. Leatherman v. Tarrant County Narcotics &

Coordination Unit, 507 U.S. 163, 164 (1993); Phillips v. Bureau of Prisons, 591 F.2d 966, 968

(D.C. Cir. 1979); see also Erickson, 551 U.S. at 94 (citing Twombly, 550 U.S. at 555-56). The

plaintiff must be given every favorable inference that may be drawn from the allegations of fact.

Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Sparrow v. United Air Lines, Inc., 216 F.3d 1111,

1113 (D.C. Cir. 2000). However, “the court need not accept inferences drawn by plaintiffs if

such inferences are unsupported by the facts set out in the complaint.” Kowal v. MCI Commc'ns

Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Nor does the court accept “a legal conclusion

couched as a factual allegation,” or “naked assertions [of unlawful misconduct] devoid of further

factual enhancement.” Iqbal, 129 S. Ct. at 1949-50 (internal quotation marks omitted); see also

Aktieselskabet AF 21. November 21 v. Fame Jeans Inc., 525 F.3d 8, 17 n.4 (D.C. Cir. 2008)

(explaining that the court has “never accepted legal conclusions cast in the form of factual

allegations”).

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 DISCUSSION

In considering a motion to dismiss, “a court is limited to considering facts alleged in the

complaint, any documents attached to or incorporated by reference in the complaint, matters of

which the court may take judicial notice, and matters of public record.” Felder v. Johanns, 595

F. Supp. 2d 46, 58-59 (D.D.C. 2009) (citing EEOC v. St. Francis Xavier Parochial Sch., 117

F.3d 621, 624 (D.C. Cir. 1997)). A court may consider an EEOC complaint and Notice of

Charge without converting a motion to dismiss into a motion for summary judgment because

such records are “public document[s] of which a court may take judicial notice.” Ahuja v.

Detica Inc., No. 09-2246, 2010 WL 3833956, at *4 (D.D.C. September 30, 2010) (citing Wiley

v. NEBF Invs., No. 09-CV-223, 2010 WL 114953, at *1 n.1 (D.D.C. January 12, 2010)); see also

Williams v. Chu, 641 F. Supp. 2d 31, 35 (D.D.C. 2009) (finding that the court could take judicial

notice of EEOC decision denying plaintiff’s request for reconsideration of her discrimination

complaints). The Court may therefore consider Ndondji’s Charge of Discrimination that was

filed with the DCOHR and cross-filed with the EEOC in evaluating this motion.

InterPark now moves to dismiss most of Ndondji’s claims in his amended complaint,

except his discrimination claims under Title VII and DCHRA based on his termination.

InterPark argues that all of Ndondji’s section 1981 claims should be dismissed because his

claims are not based on racial discrimination and that his other Title VII and DCHRA

discrimination and retaliation claims should be dismissed because he failed to exhaust his

administrative remedies, those claims are barred by the statute of limitations, and Ndondji failed

to establish a prima facie case of discrimination. The Court will address each of these arguments

in turn.

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I. Section 1981 Claims

A. Failure to State a Claim

InterPark moves to dismiss all of Ndondji’s section 1981 claims because he only alleges

national origin discrimination and section 1981 provides protection against racial discrimination

only. Mem. of Points and Auth. in Supp. of Def. Interpark Inc.’s Mot. to Partially Dismiss Pl.’s

Am. Compl. (“Def.’s Mem.”) at 5-8; Def. InterPark Inc.’s Reply to Pl.’s Opp’n to Def.’s Mot. to

Partially Dismiss Pl.’s Am. Compl. (“Def.’s Reply”) at 2-4. InterPark argues that the only basis

for discrimination that Ndondji identified in his DCOHR/EEOC charge and his amended

complaint was national origin. Def.’s Mem. at 5; Def.’s Reply at 3, n.2. Ndondji responds that

he sufficiently alleged that he was discriminated against because of his race, adding that

discrimination based on ancestry and ethnic characteristics can also be the basis for a section

1981 claim. Pl.’s Response and Opp.’n to Def.’s Mot. to Partially Dismiss Am. Compl. (“Pl.’s

Response”) at 3-4.

The Supreme Court recognized in St. Francis College v. Al-Khazraji that section 1981

prohibits racial discrimination and protects classes of persons from “intentional discrimination

solely because of [] ancestry or ethnic characteristics.” 481 U.S. 604, 613 (1987). Section 1981

does not prohibit national origin discrimination per se, and a plaintiff must demonstrate that the

discrimination is based on “ancestry or ethnic characteristics,” not on his country of origin, in

order to prevail in a section 1981 suit. See Amiri v. Hilton Washington Hotel, 360 F. Supp. 2d

38, 42-43 (D.D.C. 2003) (dismissing section 1981 claim when plaintiff did not base his

complaint on racial or ethnic characteristics but rather based it solely on the fact that he was

from Afghanistan); Kidane v. Northwest Airlines, Inc., 41 F. Supp. 2d 12, 12 (D.D.C. 1999)

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(finding that discrimination claims based on plaintiff’s national origin, Ethiopia, were not

cognizable under section 1981); Wesley v. Howard Univ., 3 F. Supp. 2d 1, 3 (D.D.C. 1998)

(national origin discrimination claims can be raised under section 1981 only when based on

“racial or ethnic characteristics associated with the national origin in question”).

Even the most liberal reading of Ndondji’s allegations, with all reasonable inferences

drawn in his favor, confirms that he is alleging discrimination based on national origin, not race.

Ndondji’s factual allegations are devoted to discriminatory acts based on his national origin. He

complains that individuals who were “not foreign nationals” did not receive the same treatment

as “foreign nationals”; that complaints by “foreign nationals” were ignored by management; that

InterPark supervisors made statements that “illustrated their bias against foreign nationals”; that

he was terminated because of his “foreign nationality”; and that a “non-foreign national

(‘American’)” took his position. Am. Compl. ¶¶ 17, 19, 20, 38, 59-60. Nearly all of Ndondji’s

claims allege that he was discriminated against based on his national origin, Angolan, and the

fact that he was a “foreign national,” not based on his race. See Hyman v. First Union Corp.,

980 F. Supp. 36, 52 (D.D.C. 1997) (dismissing section 1981 discrimination claims when the

“very language” of plaintiff’s complaint demonstrates that her claims were based on national

origin).

Moreover, Ndondji’s DCOHR/EEOC charge reinforces the fact that he believed that he

was discriminated against solely because of his national origin and not his race. Ndondji

checked off the “national origin” box as the basis for his discrimination claims, even though a

“race” box was available. Ndondji further elaborated in writing that he was replaced by a “non-

Angolan individual,” then stated “[he] was discriminated against upon [his] national origin,

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Angolan.” See DCOHR/EEOC charge; Def.’s Mem, Exh. 1. His complaint that he was replaced

by a “non-Angolan” shows that he perceived being “Angolan” as referring to his national origin

and not his race. In fact, Ndondji never mentions his race or refers to his race as the basis for

any discrimination claims he raises in his DCOHR/EEOC charge.

The Court will not recognize Ndondji’s attempt to blur race and national origin in order

to make out a section 1981 claim. Race and national origin are “ideologically distinct

categories.” Nyunt v. Tomlinson, 543 F. Supp. 2d 25, 35 (D.D.C. 2008); see also Espinoza v.

Farah Mfg.Co., 414 U.S. 86, 88 (1973) (defining national origin as “the country where a person

was born, or more broadly, the country from which his or her ancestors came”). Ndondji

contends that he is a “Black Angolan,” which he argues should be recognized as a protected

group under section 1981, and that there are “very distinct ethnic characteristics of Blank[sic]

individuals who hail from Angola.” Pl.’s Response at 3. Ndondji, however, never identifies

himself as “Black Angolan” in his amended complaint or offers any factual allegations that he

was discriminated against because he is a member of this class. He also offers no evidence or

arguments as to why identifying oneself as “Angolan” should be considered a “very distinct”

ancestral or ethnic characteristic rather than a person’s place of birth or origin. Ndondji also

alleges that “individuals of African descent” experienced “ongoing discrimination,” Am. Compl.

¶ 17, but he never alleges that he was discriminated against because of his ancestry or avers any

factual allegations that create a reasonable inference of such a claim. Such general, conclusory

allegations that Ndondji was a victim of racial discrimination are simply not enough to bring a

section 1981 action, particularly when the clear thrust of his allegations is based on national

origin discrimination. In short, bare assertions cannot transform Ndondji’s national origin

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discrimination claims into racial discrimination claims eligible for section 1981 relief. See

Nyunt, 543 F. Supp. 2d at 34 (rejecting plaintiff’s argument that his national origin

discrimination claims based on his Burmese national origin can be viewed “as like or reasonably

related” to race and can be the basis for a racial discrimination claim); Kun v. Finnegan, 949 F.

Supp. 13, 16 (D.D.C. 1996) (finding that it would be improper for the court to re-cast plaintiff’s

national origin claim as a race discrimination claim); Sisay v. Greyhound Lines, Inc., 34 F. Supp.

2d 59, 64 (D.D.C. 1998) (finding plaintiff’s national origin discrimination claim could not

reasonably be expected to grow out of his properly exhausted racial discrimination claim and

also noting that allegations of race discrimination may “be wholly unrelated to a claimant’s

country of origin”).

Ndondji’s occasional reference to his race in his amended complaint is also insufficient

to make out a section 1981 action. Am. Compl. Id. ¶ 32a. A plaintiff “cannot merely invoke his

race in the course of a claim’s narrative and automatically be entitled to pursue [section 1981]

relief. Rather, plaintiff must allege some facts that demonstrate that his race was the reason for

[a] defendant’s actions.” Middlebrooks v. Godwin Corp., 722 F. Supp. 2d 82, 88 (D.D.C. 2010)

(quoting Bray v. RHT, Inc., 748 F. Supp. 3, 5 (D.D.C. 1990)). Here, Ndondji states that he is

black and makes the conclusory allegation that he was discriminated against on the basis of his

“national origin/race,” but he fails sufficiently to allege facts to support that claim. He claims

that he was placed in the “worst” locations because of his “perceived race,” Am. Compl. ¶ 33,

and discriminated against because of race in the “conditions of his employment,” id. ¶ 40A.

More specifically, he claims that workers who were “not Black” were allowed to have parking

attendants when he did not and “have a say in the workers assigned to them.” Id. ¶ 32A. He also

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alleges that InterPark discriminated against him on the basis of “race/national origin” when he

was falsely accused of stealing, blamed for poor performance, and later terminated. Id. ¶ 40C.

Beyond such conclusory statements, however, Ndondji makes no factual allegations

demonstrating that his race, ancestry, or ethnic characteristics were the reason for any

mistreatment he suffered at InterPark. He never identifies the races of the InterPark employees

who allegedly discriminated against him or, more importantly, the races of other similarly

situated employees who were allegedly treated more favorably than he was. Ndondji’s claims at

their core are based on national origin, and mentioning race, without factual allegations

demonstrating that any discrimination was racially-motivated, will not transform those claims

into section 1981 claims based on racial discrimination. See Mesumbe v. Howard Univ., 706 F.

Supp. 2d 86, 92 (D.D.C. 2010) (dismissing section 1981 claim when plaintiff’s complaint only

makes a conclusory allegation of racial discrimination but does not allege “disparate treatment

was racially motivated” or the “race, ethnicity, or national origin of those who allegedly received

preferential treatment”); Alexander v. Wash. Gas Light Co., 481 F. Supp. 2d 16, 31 (D.D.C.

2006) (dismissing section 1981 claims when plaintiff only stated that he is African-American but

failed to “[plead] any facts or [make] any suggestion of racially discriminatory motive”);

Kalantar v. Lufthansa German Airlines, 402 F. Supp. 2d 130, 138 (D.D.C. 2005) (dismissing

section 1981 claim when plaintiff did not offer any evidence that he was singled out on the basis

of “racial or ethnic characteristics” as “opposed to his citizenship”). Where the question is

whether vague allegations of race discrimination are sufficient when no other basis for

discrimination is alleged, courts may be more lenient in allowing a section 1981 claim to

survive. See, e.g., Gray v. Universal Serv. Admin. Co., 581 F. Supp. 2d 47, 55 (D.D.C. 2008)

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(plaintiff sufficiently pled section 1981 claim based on race and ancestry discrimination to

survive motion to dismiss). But when a plaintiff has unambiguously pled national origin as a

distinct basis for discrimination, and the only question is whether the plaintiff has also pled

racial discrimination, courts should not strain to find that passing references to race are sufficient

to state a section 1981 claim. Here, Ndondji’s claims rely on national origin discrimination, a

distinct and different type of discrimination than racial discrimination. The few references to

race do not change the fact that Ndondji’s claims are fundamentally about discrimination on the

basis of national origin.

That the focus of Ndondji’s claims is national origin rather than race is even clearer for

his retaliation claims. Ndondji’s retaliation claims stem from a meeting where he and others

allegedly complained that they were written up when “others that were not foreign nationals did

not receive the same treatment,” Am. Compl. ¶ 19, and “[t]he foreign national employees . . .

complained” that Silver-Ward did not respond to their complaints,” id. ¶ 20. He does not allege

that he was retaliated against for making a complaint of discrimination based on his race.

Accordingly, the Court will dismiss all of Ndondji’s claims under section 1981.

B. Statute of Limitations

Alternatively, InterPark argues that Ndondji’s section 1981 claims should be dismissed

because most of those claims are time-barred. Def.’s Mem. at 8; Def.’s Reply at 4-5. Section

1981 claims must be brought within four years after the cause of the action accrues. Jones v.

R.R. Donnelley & Sons Co., 541 U.S. 369, 383-84 (2004). Ndondji filed his complaint on

December 30, 2009. Thus, any claims based on events arising prior to December 30, 2005 – four

years before he filed the complaint – are time-barred. InterPark argues that many of the acts

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underlying Ndondji’s claims occurred prior to that date. Def.’s Mem. at 8; Def.’s Reply at 4-5.

Ndondji responds that InterPark is mistaken as to which events alleged in his complaint are

intended to serve as causes of action; he maintains that all of his claims actually fall within the

limitations period. Pl.’s Response at 4-5. As discussed above, Ndondji’s section 1981 claims

are dismissed for his failure to state a claim, and the Court need not further explore whether any

of his claims also are subject to dismissal on statute of limitations grounds.

II. Title VII Claims

A. Exhaustion of Administrative Remedies

InterPark moves to dismiss all of Ndondji’s Title VII discrimination and retaliation

claims, except for his discrimination claim based on his termination, for failure to exhaust

administrative remedies. Under Title VII, a plaintiff must timely exhaust his administrative

remedies before bringing an action in federal court. Payne v. Salazar, 619 F.3d 56, 65 (D.C. Cir.

2010). To be timely, a claimant first must file an administrative charge alleging that the

employer has engaged in an unlawful employment practice within a specified period (either 180

or 300 days) after the practice has occurred. Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550

U.S. 618, 623-24 (2007). Only those claims that are contained in the administrative complaint or

that are “like or reasonably related” to the allegations of the administrative complaint can be

raised in a Title VII lawsuit. Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995); see also

Bailey v. Verizon Comm., Inc., 544 F. Supp. 2d 33, 37-38 (D.D.C. 2009) (noting that “[i]f a

plaintiff’s EEOC charge makes a class of allegation altogether different from that which she later

alleges when seeking relief in federal district court, she will have failed to exhaust administrative

remedies”). Such claims “must arise from ‘the administrative investigation that can reasonably

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be expected to follow the charge of discrimination.’” Park, 71 F.3d at 907 (quoting Chisholm v.

U.S. Postal Serv., 665 F.2d 482, 491 (4th Cir. 1981)). The exhaustion requirement provides the

EEOC the opportunity to investigate and “serves the important purpose of giving the charged

party notice of the claim and ‘narrow[ing] the issue for prompt adjudication and decision.’” Id.

(quoting Laffey v. Northwest Airlines, Inc., 567 F.2d 429, 472 n.325 (D.C. Cir. 1976)). The

defendant bears the burden of proving by a preponderance of the evidence that the plaintiff has

failed to exhaust his administrative remedies. Bowden v. United States, 106 F.3d 433, 437 (D.C.

Cir. 1997); Brown v. Marsh, 777 F.2d 8, 14 (D.C. Cir. 1985). “Meager, conclusory allegations”

that plaintiff has not exhausted his administrative remedies will not be sufficient. Hudson v.

Children’s Nat’l Medical Ctr., 645 F. Supp. 2d 1, 5 n.4 (D.D.C. 2009) (quoting Brown, 777 F.2d

at 12).

Requiring claimants properly to raise claims before the EEOC should not be construed to

place a “heavy technical burden” on individuals, but “it is also true that ‘the requirement of some

specificity in a charge is not a mere technicality.’” Park, 71 F.3d at 907 (citing Ostrapowicz v.

Johnson Bronze Co., 541 F.2d 394, 398 (3d Cir. 1976)). A claimant is not necessarily limited to

the boxes selected in the administrative complaint as the basis for the claim if his written

explanation can provide a basis for identifying the nature of his claims. Robinson-Reeder v. Am.

Council Educ., 532 F. Supp. 2d 6, 13 (D.D.C. 2008). At the same time, “[a] court cannot allow

liberal interpretation of an administrative charge to permit a litigant to bypass the Title VII

administrative process.” Id. Dismissal is required when a plaintiff fails to exhaust his

administrative remedies with respect to particular claims. Rann v. Chao, 346 F.3d 192, 194-95

(D.C. Cir. 2003) (affirming dismissal of plaintiff’s age discrimination claims for failure to

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exhaust administrative remedies); Gillet v. King, 931 F. Supp. 9, 12-13 (D.D.C. 1996)

(dismissing plaintiff’s Title VII claims for failure to exhaust administrative remedies).

1. Discrimination Based on National Origin

InterPark contends that the majority of Ndondji’s discrimination claims under Title VII

should be dismissed for failure to exhaust administrative remedies. Def.’s Mot. at 9-10; Def.’s

Reply at 6-8. According to InterPark, Ndondji has only alleged one proper claim – that

he was terminated because of his national origin. Def.’s Mem. at 2; Def.’s Reply at 11.

Ndondji’s “reassignment/transfer allegation” and all remaining discrimination claims, InterPark

argues, should be dismissed. Id. In response, Ndondji argues that all of his discrimination

claims are “like or reasonably related to the allegations” raised before the EEOC, and a

reasonable EEOC investigation would have led to an investigation of all of his claims. Pl.’s

Response at 5-6.

The Court finds that Ndondji properly exhausted his administration remedies for his

discrimination claims based on national origin relating to (1) his disciplinary write-up and (2) his

termination. His DCOHR/EEOC charge states:

I. On 7/28/88, I was hired by Respondent to work as a Lobby Attendant. I was
unjustly issued a disciplinary writeup regarding the disappearance of $209.00
from a company facility. Finally, on 12/12/06, while I was employed by a
Respondent as a Facility Manager, I was unjustly discharged from employment.
By contrast, I was replaced by a non-Angolan individual.

II. I believe that I was discriminated against based upon my national origin,
Angolan, in violation of Title VII of the Civil Rights Act of 1964, as amended.

Def.’s Mem., Exh. 1. Ndondji also checked the “national origin” box on the DCOHR/EEOC

form. The DCOHR and EEOC therefore had timely and sufficient notice of his national origin

discrimination claims based on his disciplinary writeup and his termination.

-16-
 However, Ndondji failed to exhaust his administrative remedies for his remaining

discrimination claims.5 Ndondji now alleges a host of negative working conditions he allegedly

experienced, including transfers to difficult locations, an increased workload, management

reprimands, spying by a co-worker, and placement on PIP. Am. Compl. ¶¶ 32-40. But Ndondji

does not reference his working conditions or offer any factual allegations to support these claims

in his DCOHR/EEOC charge. Such claims do not involve the same factual circumstances or the

same types of discriminatory conduct as, and hence are not “like or reasonably related” to, the

only two acts raised in his DCOHR/EEOC charge: receiving a disciplinary write-up and being

terminated. See Chacko v. Patuxent Inst., 429 F.3d 505, 506 (4th Cir. 2005) (finding plaintiff

failed to exhaust administrative remedies when EEOC charge referenced “different time frames,

actors, and discriminatory conduct than the central factual allegations”).

Ndondji specified two claims in his DCOHR/EECO charge, a particular disciplinary

write-up in 2006 and his December 2006 discharge. Those administrative claims do not capture

the mix of working condition complaints that he now also pursues. A reasonable investigation of

Ndondji’s two specific complaints would not be expected to reveal his claims of negative

working conditions that started as far back as 2004. He should not be allowed to bypass the Title

VII exhaustion requirement and now litigate claims that he could have but never raised before

5
Some district courts applying the Supreme Court’s decision in National R.R Passenger Corp. v. Morgan,
536 U.S. 101 (2002), have held that a plaintiff must exhaust his administrative remedies with respect to each discrete
discriminatory and retaliatory act alleged. See, e.g., Taylor v. Mabus, 685 F. Supp. 2d 94, 99 (D.D.C. 2010);
Romero-Ostolaza v. Ridge, 370 F. Supp. 2d 139, 148-50 (D.D.C. 2005); Coleman v. Adebayo v. Leavitt, 326 F.
Supp. 2d 132, 137 (D.D.C. 2004). Cf. Thomas v. Vilsack, 718 F. Supp. 2d 106, 121 (D.D.C. 2010); Jones v.
Bernanke, 685 F. Supp. 2d 31, 37 (D.D.C. 2010); Lewis v. Dist. of Columbia, 535 F. Supp. 2d 1, 7 (D.D.C. 2008).
The D.C. Circuit has not weighed in on whether to adopt this interpretation of Morgan for the exhaustion of
remedies requirement. Payne, 619 F.3d at 65 (“We need not decide whether Morgan did in fact overtake [the] line
of cases [permitting the litigation of unfiled claims that were ‘like or reasonably related to claims’ filed with the
agency].”). This Court need not resolve the question here because Ndondji’s remaining discrimination claims do not
satisfy even the more permissive “like or reasonably related to” standard.

-17-
the EEOC or the DCOHR. To hold otherwise would undermine the purpose of the Title VII

exhaustion requirement – to provide sufficient notice to the agency and charged party of the

claims. Park, 71 F.3d at 907; Nyunt, 543 F. Supp. 2d at 35. Accordingly, the Court will dismiss

Ndondji’s national origin discrimination claims under Title VII, other than those based on his

disciplinary write-up and termination, for failure to exhaust his administration remedies.

2. Retaliation

The Court also agrees with InterPark that Ndondji failed to exhaust his administrative

remedies for his retaliation claims under Title VII. Ndondji is not required to allege facts

sufficient to make out a prima facie case of retaliation in his DCOHR/EEOC charge or even in

his complaint, see Ellis v. Georgetown Univ. Hosp., 631 F. Supp. 2d 71, 76 (D.D.C. 2009), but at

a minimum he must have raised his pre-charge retaliation allegations with the EEOC to exhaust

his administrative remedies, see Payne, 619 F.3d at 65 (affirming dismissal of retaliation claim

when plaintiff failed to exhaust her administrative remedies on that particular retaliation claim);

Maryland v. Sodexho, 474 F. Supp. 2d 160, 162 (D.D.C. 2007) (noting that an employee “must .

. . alert the EEOC and the charged employer with the nature of the alleged wrongdoing in the

EEOC charge”). Retaliation claims that occurred prior to the filing of a claim must be

administratively exhausted. See, e.g., Brown v. Dist. of Columbia, 251 F. Supp. 2d 152, 162

(D.D.C. 2003) (dismissing Title VII retaliation claims for failure to exhaust administrative

remedies when plaintiff failed to raise retaliation allegations in EEOC complaint); Pyne v. Dist.

of Columbia, 298 F. Supp. 2d 7, 12 (D.D.C. 2002) (finding that to exhaust administrative

remedies and seek relief, it is a “prerequisite” to bring a retaliation charge before the EEOC if

the retaliation occurred prior to the filing of the EEOC charge); Hunt v. Dist. of Columbia Dep’t

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of Corrections, 41 F. Supp. 2d 31, 37 (D.D.C. 1999) (finding that plaintiff failed to exhaust

administrative remedies when alleging a retaliation claim that occurred prior to filing and was

different than that raised in EEOC charge).

Here, Ndondji failed to include any factual allegations in his DCOHR/EEOC charge

raising a retaliation claim. Although he does not organize his claims into specific counts, the

Court identifies four potential retaliation claims in his amended complaint. As a result of his

complaints to management sometime in 2006, Ndondji alleges that InterPark retaliated against

him by (1) assigning a co-worker to “spy” on him; (2) issuing a disciplinary warning; (3) placing

him on a Performance Improvement Plan (“PIP”), and (4) terminating him. Am. Compl. ¶¶ 23;

26; 47-49; 59-60. Each of Ndondji’s alleged retaliation claims occurred prior to his filing of the

administrative charge, but he neither checked the “Retaliation” box on the DCOHR/EEOC

charge, nor offered factual allegations in the charge to support a retaliation claim. His charge

thus lacks any facts alleging that InterPark acted in retaliation or any reference to complaints he

allegedly made to InterPark management or human resources. Ndondji was not necessarily

limited to the boxes he checked on the DCOHR/EEOC form to indicate the basis for his Title VII

claim, see Robinson-Reeder, 532 F. Supp. 2d at 13, but here, he never expressed or described

any belief that InterPark retaliated against him, see Maryland, 474 F. Supp. at 162 (finding that

plaintiff “need only describe [the nature of the charge] in the text of the [EEOC] charge form” to

exhaust his administrative remedies as to that charge). In fact, Ndondji’s written explanation on

the DCOHR/EEOC charge only discussed his belief that he was “discriminated against based

upon [his] national origin, Angolan.” Def.’s Mem., Exh. 1. Ndondji never gave any indication

whatsoever to the DCOHR or the EEOC that InterPark had engaged in retaliatory behavior.

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 Moreover, raising discrimination claims before the EEOC is not sufficient to warrant

adding retaliation claims later in a Title VII suit. Discrimination and retaliation claims are

considered distinct types of claims that must be raised independently if the retaliation occurred

prior to the filing of the administrative charge. See Ponce v. Billington, 652 F. Supp. 2d 71, 73-

74 (D.D.C. 2009) (finding plaintiff failed to exhaust administrative remedies for retaliation when

he did not allege retaliation in his EEOC complaint and retaliation was not “like or reasonably

related to” his other discrimination claims); Miller v. Rosenker, 578 F. Supp. 2d 107, 112

(D.D.C. 2008) (dismissing age or gender discrimination claims when he only raised retaliation

claims in his administrative complaint); Maryland, 474 F. Supp. 2d at 162 (dismissing earlier

discrimination claims when plaintiff only raised retaliation claims, failed to check the

discrimination box on the EEOC charge or give any indication in the EEOC charge that the

claims were based on discrimination). Therefore, because of the absence of any facts or

allegations in the DCOHR/EEOC charge indicating that his claims were based on retaliation,

Ndondji has failed to exhaust his administrative remedies for his retaliation claims under Title

VII. Accordingly, Ndondji’s retaliation claims under Title VII will be dismissed. See Marcelus

v. Corrections Corp. of America, 540 F. Supp. 2d 231, 236 (D.D.C. 2008) (dismissing retaliation

claims when plaintiff did not raise retaliation claim in EEOC charge and when nothing in EEOC

charge referenced retaliation).

B. Statute of Limitations

InterPark moves to dismiss Ndondji’s Title VII discrimination claims based on events

that occurred prior to August 9, 2006, as time-barred. Def.’s Mem. at 11; Def.’s Reply at 8; see

42 U.S.C. § 2000e-5(e)(1). Under Title VII, a plaintiff must file a charge with the EEOC within

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300 days of the date of the alleged discriminatory act. Nat’l R.R. Passenger Corp. v. Morgan,

536 U.S. 101, 109-10 (2002); see 42 U.S.C. §20000e-5(e)(l) (2008). InterPark also notes that

Ndondji did not challenge its statute of limitations argument. Def.’s Mem. at 8; Def.’s Reply at

8. Ndondji contests InterPark’s statute of limitations arguments regarding his section 1981

claims, but he never addresses Title VII’s statute of limitations specifically. Pl.’s Response at 8.6

Dismissal based on this affirmative defense is appropriate when the facts giving rise to

the statute of limitations defense are clear from the face of the complaint. Smith-Haynie v. Dist.

of Columbia, 155 F.3d 575, 578 (D.C. Cir. 1998). The Court may dismiss a claim on statute of

limitations grounds if “no reasonable person could disagree on the date” on which the cause of

action accrued. Smith v. Brown & Williamson Tobacco Corp., 3 F. Supp. 2d 1473, 1475

(D.D.C. 1998) (citing Kuwait Airways Corp. v. Am. Sec. Bank, N.A., 890 F.2d 456, 463 n.11

(D.C. Cir. 1989)). “[B]ecause statute of limitations issues often depend on contested questions

of fact, dismissal is appropriate only if the complaint on its face is conclusively time-barred.”

Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996).

By requesting that the Court dismiss the majority of Ndondji’s claims on Title VII statute

of limitation grounds, InterPark appears to characterize those claims as having occurred shortly

after his 2004 transfer to a different location. Ndondji’s complaint, however, contains vague

allegations without precise dates. As InterPark acknowledges, Ndondji “did not provide specific

dates” for some alleged discriminatory acts. See Def.’s Mem. at 13, n. 9. Indeed, it is not clear

6
Arguably, the Court could treat this argument as conceded based on Ndondji’s failure to respond directly
to InterPark’s Title VII statute of limitations argument in his opposition. See Hopkins v. W omen’s Div., Gen. Bd. of
Global Ministries, 238 F. Supp. 2d 174, 178 (D.D.C. 2002) (“It is well understood in this Circuit that when a
plaintiff files an opposition to a motion to dismiss addressing only certain arguments raised by the defendant, a court
may treat those arguments that the plaintiff failed to address as conceded.”) (citations omitted).

-21-
as to the exact timing of any of the alleged discriminatory acts, except for his 2004 transfer to a

different location and his December 2006 termination. Prior to discovery, the Court is not

prepared to take a narrow reading of Ndondji’s complaint and hence declines to dismiss his

claims on statute of limitations grounds at this time. InterPark has failed to satisfy its burden to

demonstrate that Ndondji’s discrimination claims are “conclusively time-barred” on the face of

the complaint.

C. Adverse Employment Actions

The Court agrees with InterPark that Ndondji’s Title VII discrimination claims,

excluding his termination claim, are subject to dismissal for a failure to satisfy one element of a

prima facie case. InterPark argues that Ndondji’s discrimination allegations do not constitute

discrete adverse employment actions as required to bring a Title VII case, including the

following alleged actions: (1) InterPark placed him in the “worst” and “most difficult” locations

(Am. Compl. ¶¶33-34); (2) InterPark deprived him of “adequate” and satisfactory attendants (¶¶

34-35); (3) InterPark forced him to over-park the location and then blamed him for the failure to

prevent accidents (¶ 36); (4) InterPark overworked him and blamed him for the poor

performance of others (¶ 39); (5) InterPark assigned another employee to spy on him (¶ 40B);

and (6) InterPark placed him on a performance improvement plan (“PIP”) (¶ 42). See Def.’s

Mem. at 13-14; Def.’s Reply at 9. Ndondji largely avoids responding to InterPark’s arguments,

except to emphasize that there is a liberal pleading standard at the motion to dismiss stage. See

Pl.’s Response at 6-7.

A plaintiff does not need to plead each element of his prima facie case to survive a

motion to dismiss, Robinson-Reeder, 532 F. Supp. 2d at 14 (quoting Swierkiewicz v. Sorema

-22-
N.A., 534 U.S. 506, 515 (2002)), but he “must allege facts that, if true would establish the

elements of each claim” in his complaint, id. (citing Rattigan v. Gonzales, 503 F. Supp. 2d 56, 75

(D.D.C. 2007)). Thus, “the Court may explore the plaintiff’s prima facie case at the dismissal

stage to determine ‘whether the plaintiff can ever meet his initial burden to establish a prima

facie case for Title VII discrimination.’” Rattigan, 503 F. Supp. 2d at 72 (citation omitted). To

succeed on a Title VII claim, a plaintiff has the initial burden of establishing a prima facie case

of discrimination by showing that “‘(1) she is a member of a protected class; (2) she suffered an

adverse employment action; and (3) the unfavorable action gives rise to an inference of

discrimination.’” Wiley v. Glassman, 511 F.3d 151, 155 (D.C. Cir. 2007). “An ‘adverse

employment action’ is ‘a significant change in employment status, such as hiring, firing, failing

to promote, reassignment with significantly different responsibilities, or a decision causing

significant change in benefits.’” Douglas v. Preston, 559 F.3d 549, 549 (D.C. Cir. 2009); Taylor

v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003) (quoting Burlington Indus., Inc. v. Ellerth, 524

U.S. 742, 760 (1998)). The employee “must experience[] materially adverse consequences

affecting the terms, conditions, or privileges of employment or future employment opportunities

such that a reasonable trier of fact could find objectively tangible harm.” Forkkio v. Powell, 306

F.3d 1127, 1131 (D.C. Cir. 2002) (citing Brown v. Brody, 199 F.3d 446, 457 (D.C. Cir. 1999)).

“A tangible employment action in most cases inflicts direct economic harm.” Douglas, 559 F.3d

at 552 (quoting Burlington, 524 U.S. at 762). “[C]ourts cannot be wheeled into action for every

workplace slight, even one that was possibly based on protected conduct.” Taylor v. Fed.

Deposit Ins. Corp., 132 F.3d 753, 765 (D.C. Cir. 1997).

Here, Ndondji fails to allege any factual circumstances that constitute an adverse

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employment action as required to bring a Title VII claim.7 Generally, his discrimination claims

other than his termination claim reflect employment-related grievances amounting to

dissatisfaction with his working conditions. These grievances cannot qualify as adverse

employment actions. “Not everything that makes an employee unhappy” is an adverse

employment action. Broderick v. Donaldson, 437 F.3d 1226, 1234 (D.C. Cir. 2006) (quoting

Russell v. Principi, 257 F.3d 815, 818 (D.C. Cir. 2001)). Only “tangible harm[s],” such as a

“change in grade, salary, or other benefits, rise to the level of adverse employment actions.”

Robinson-Reeder, 532 F. Supp. 2d at 16. “Minor changes in work-related duties or

opportunities” do not constitute adverse employment actions without some tangible harm.

Stewart v. Evans, 275 F.3d 1126, 1135 (D.C. Cir. 2002).

1. Transfers/Reassignments to Other Locations8

Ndondji claims that his transfers to the “worst” and “most difficult” locations must

constitute adverse employment actions. Am. Compl. ¶ 33-34. If his complaint is liberally

construed in his favor, Ndondji’s allegations could suggest that he was transferred to additional

locations beyond the one transfer to the 1900 19th Street location in 2004 mentioned in his

complaint. But Ndondji has not alleged that any undesirable transfer led to “objectively tangible

harm” such as a decrease in salary or benefits or that any transfer affected the “terms, conditions,

7
Ndondji’s amended complaint is vague in its allegations and does not clearly set forth all causes of action.
Hence, several of his allegations may have been intended to serve as “background information” rather than distinct
claims. For purposes of analyzing the viability of his Title VII discrimination claims, however, the Court will
consider all allegations that could potentially represent discrimination claims.

8
Ndondji explains that his allegation of a 2004 transfer to one of the busiest locations (Am. Compl. ¶ 10) is
not meant to be treated as a “cause of action.” Pl.’s Response at 4. Rather, he claims that this allegation is meant to
be read as a “supporting statement” for other discriminatory events that occurred later. Id. Ndondji, however,
explains that his allegation that he was “put in the worst locations” is meant to state a cause of action. Id.; Am.
Compl. ¶ 33.

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or privileges” of his employment. See Martin v. Locke, 659 F. Supp. 2d 140, 148 (D.D.C. 2009)

(finding plaintiff failed to show that her job transfer constituted an adverse employment action

when she did not allege her pay or grade was reduced). Lateral transfers – those transfers where

a person does not suffer a decrease in compensation or benefits or a “demotion in form or

substance” – are generally not viewed as adverse employment actions. Stewart, 352 F.3d at 426

(citing Brown, 199 F.3d at 457). A lateral transfer must also involve the “withdrawing [of] an

employee’s supervisory duties” or “reassignment with significantly different responsibilities”

before it will amount to an adverse employment action. Czekalski v. Peters, 475 F.3d 360, 364

(D.C. Cir. 2007) (citations omitted). Ndondji has not alleged that his transfers led to a reduction

in pay or benefits or “demotion in form or substance” when compared to his position at other

locations. He may have been transferred to “less desirable” locations, but transfers without more

do not constitute adverse employment actions.

2. Heavier Workload

None of Ndondji’s allegations relating to his work conditions rises to the level of an

adverse employment action, including his claims that he was deprived of a reasonable number of

attendants compared to other employees and that he was over-worked. “Scarce resources and

increased workloads are familiar complaints in virtually every workplace and every industry, but

they do not give rise to a discrimination claim under Title VII.” Rattigan, 503 F. Supp. 2d at 73;

see also Mack v. Strauss, 134 F. Supp. 2d 103, 113-14 (D.D.C. 2001) (holding that an allegedly

increased workload is insufficient to bring a discrimination claim without “some adverse change

in the terms, conditions, or privileges of employment”); Brodetski v. Duffey, 141 F. Supp. 2d 35,

45 (D.D.C. 2001) (finding that plaintiff’s heavier workload compared to his peers was not

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sufficiently adverse action, that “work inequity” is the “level of personnel decision-making in

which courts should not meddle,” and that employees should expect to shoulder an “extra load”

on occasion or “step in if there [are] unexpected staff shortages”). Ndondji alleges that he

worked during “lunch and times off” when he was placed on a PIP, Am. Compl. ¶ 25, but it is

not surprising that Ndondji may have put in extra time and effort while on a PIP. Besides his

time on a PIP, he fails to allege any other occasion when he was overworked due to the shortage

of qualified parking attendants. See Mayers v. Laborer’s Health & Safety Fund, 478 F.3d 364,

369 (D.C. Cir. 2007) (finding that plaintiff failed to allege “adverse action” when she failed to

allege that her workload increased “above and beyond what ordinarily was expected of her”).

Ndondji’s claims that management demanded that he over-park the garage also cannot,

standing alone, amount to an adverse employment action. “Courts are not in a position to review

every task that management assigns to employees.” Brodetski, 141 F. Supp. 2d at 45 (citing

Mungin v. Katten Muchin & Zavs, 116 F.3d 1549, 1556 (D.C. Cir. 1997)). Courts should

hesitate before engaging in “‘judicial micromanagement of business practices’ by second-

guessing employers’ decisions.” Baloch v. Kempthorne, 550 F.3d 1191, 1191 (D.C. Cir. 2008)

(citation omitted). Ndondji’s allegations that management “forced” him to over-park the cars

and issued orders concerning how to carry out his job responsibilities do not reflect a “significant

change in [his] employment status.” Taylor, 350 F.3d at 1293; see also Brantley v. Kempthorne,

No. 06-1137, 2008 U.S. Dist. LEXIS 38406, at *14 (D.D.C. May 13, 2008) (“To qualify as an

adverse action, the incident must be inherently related to plaintiff’s employment status . . . .

Events that merely have an effect on plaintiff’s work environment are legally insufficient.). This

Court will not second-guess InterPark’s business decisions as to what constitutes a reasonable

-26-
number of staff members and their appropriate location assignments. Ndondji’s disagreements

with InterPark management about the qualifications of other employees, the reasonable number

of employees assigned to a location, and its business practices, such as the proper time to put out

a “Full” sign for a parking garage, cannot form the basis of a Title VII lawsuit.

3. Management Reprimands

Similarly, management reprimands for failing to prevent parking accidents or blame for

the poor performance of Ndondji’s parking attendants are not adverse employment actions.

“Formal criticisms or poor performance evaluations” are not necessarily adverse employment

actions, and “should not be considered such if they did not ‘affect[] the [employee’s] grade or

salary.’” Taylor, 350 F.3d at 1293 (quoting Brody, 199 F.3d at 457); see also Douglas, 559 F.3d

at 552 (“[P]erformance evaluations ordinarily [are] not actionable under Title VII.”); Stewart,

275 F.3d at 1135 (noting that “formal criticisms or reprimand without additional disciplinary

action” are not adverse employment actions); Broderick, 437 F.3d at 1234 n. 2 (finding that

“disciplinary memo” does not constitute adverse action when it did not affect plaintiff’s “grade,

salary, duties or responsibilities”); Powell v. Castaneda, 390 F. Supp. 2d 1, 23-24 (D.D.C. 2005)

(finding that letter of reprimand for being late to a meeting and lower performance review did

not constitute adverse employment actions). Ndondji did not suffer any disciplinary action or

decrease in salary, benefits, or significant responsibilities as a result of management’s

reprimands; thus, his complaints about management reprimands cannot constitute adverse

employment actions.

4. “Spying” and Disciplinary Write-up

Ndondji’s allegation that InterPark assigned an employee to “spy” on him also does not

-27-
entail objectively tangible harm and thus does not constitute an adverse employment action.

Closely supervising an employee will not automatically subject an employer to Title VII

exposure. See, e.g., Zelaya v. Unicco Service Co., No. 07-02311, 2010 WL 3292364, at *8

(D.D.C. 2010) (finding that assigning an employee to monitor plaintiff temporarily constitutes a

“petty slight[]” and “minor annoyance[]” and is not a materially adverse action); Nurriddin v.

Bolden, 674 F. Supp. 2d 64, 89 n.20 (D.D.C. 2009) (finding that “spying” by co-workers fails to

qualify as adverse employment action because there was no allegation of objectively tangible

harm). “Being subject to ‘scrupulous monitoring’ does not constitute an adverse action because

‘it is part of the employer’s job to ensure that employees are safely and properly carrying out

their jobs.’” Rattigan, 503 F. Supp. 2d at 56 (quoting Runkle v. Gonzales, 391 F. Supp. 2d 210,

225 (D.D.C. 2005) (citation omitted)); see also Lester v. Natsios, 290 F. Supp. 2d 11, 30 (D.D.C.

2003) (“[B]eing closely supervised or ‘watched’ does not constitute an adverse action that can

support a claim under Title VII.”). Here, Ndondji maintains that an InterPark employee

(Stevenson) was assigned to spy on him and contends that the very act of “spying” itself

constituted a discriminatory act. Am. Compl. ¶¶ 23, 40B. Ndondji, however, has not alleged

that the spying led to a “reduction in [his] benefits, hours of work or salary, or that he suffered

significantly diminished work responsibilities, all of which would show [he] suffered an adverse

employment action.” Nurriddin, 674 F. Supp. 2d at 94.

Ndondji also claims that Stevenson falsely accused him of “false practices,” including

“falsely accusing him of taking money,” Am. Compl. ¶¶ 23, 40C, and although it is not clear in

the amended complaint, it appears that Ndondji is alleging that it is Mr. Stevenson’s false

statements that led him to be “unjustly issued a disciplinary write-up” as referenced in Ndondji’s

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DCOHR/EEOC form. Receiving a disciplinary write-up alone, however, is not sufficient to

constitute an adverse employment action. Hunter v. Ark Restaurants Corp., 3 F. Supp. 2d 9, 20

(D.D.C. 1998) (finding that supervisors filing disciplinary write-ups against plaintiff is not an

adverse employment action when plaintiff did not allege any facts that he suffered a

“demonstrably adverse action” that affected his employment position). Ndondji also contends

that his disciplinary-write up resulted in his unfair placement on a PIP, Am. Compl. ¶¶ 23, but

PIP placement does not constitute an adverse employment action for the reasons discussed

below.

5. Performance Improvement Plan (“PIP”)

Finally, Ndondji argues that his placement on a PIP constituted a discriminatory act.

Am. Compl. ¶ 42; Pl.’s Response at 8. Placement on a PIP, however, cannot rise to the level of

an adverse employment action without allegations of “objectively tangible harm” to the “terms,

conditions, or privileges” of employment. See Taylor, 350 F.3d at 1293 (finding that placement

on a PIP alone does not constitute an adverse employment action); Kelly v. Mills, 677 F. Supp.

2d 206, 221 (D.D.C. 2010) (same). Here, Ndondji has not alleged that his placement on a PIP

affected his grade or salary, or led to a material change of benefits or responsibilities such that it

rose to the level of an adverse employment action. See Douglas, 559 F.3d at 552 (noting that

“performance evaluations ordinarily are not actionable under Title VII; ‘[t]he result of an

evaluation is often speculative, making it difficult to remedy’”)(quoting Russell, 275 F.3d at

818). Ndondji’s argument that his PIP was used to “embarrass” and “harass” him is also not

enough. “Public humiliation” or “loss of reputation” is not enough to establish an adverse

action. Forkkio, 306 F.3d at 1130-31 (quoting Stewart, 275 F.3d at 1136). The fact that Ndondji

-29-
allegedly never received PIP evaluations did not adversely affect his employment. Taylor, 350

F.3d at 1293 (finding that delay of plaintiff receiving PIP performance evaluations was not an

adverse employment action). Although Ndondji was eventually terminated after his PIP

placement, he does not allege any objectively tangible harm as a result of the PIP placement

itself. See Kelly, 677 F. Supp. 2d at 221 (dismissing plaintiff’s discrimination claim for the PIP

placement that led to plaintiff’s termination).

* * * * *

In sum, beyond his termination claim, each of Ndondji’s remaining discrimination claims

must be dismissed because each does not as a matter of law rise to the level of an adverse

employment action as required under Title VII to establish a prima facie case of discrimination.

See Rattigan, 503 F. Supp. 2d at 74-75; (citing Runkle, 391 F. Supp. 2d at 222) (dismissing

claims when allegations did not “amount to legally cognizable adverse actions and therefore

would not enable him to ever establish a prima facie case under Title VII.”).

III. D.C. Human Rights Act (“DCHRA”)

The DCHRA, like Title VII, prohibits certain discriminatory practices “[b]y an

employer,” making it unlawful to “fail or refuse to hire, or to discharge, any individual; or

otherwise discriminate against any individual, with respect to his compensation, terms,

conditions, or privileges of employment” based upon protected categories including, inter alia,

an individual’s “race, color, religion, national origin, [or] sex.” D.C. Code § 2-1402.11(a)(1). In

the end, Ndondji’s DCHRA claims fare about the same as his Title VII claims.

A. Failure to Exhaust Administrative Remedies

InterPark argues that Ndondji has failed to exhaust his administrative remedies for his

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discrimination and retaliation claims under the DCHRA, and thus that this Court must dismiss all

of Ndondji’s DCHRA claims except his termination claim. See Def.’s Mem. at 9-10; Def.’s

Reply at 6-7. InterPark, however, is incorrect in arguing that Ndondji is required to satisfy such

a requirement under the DCHRA. Generally, only District of Columbia government employees

are required to exhaust their administrative remedies prior to filing a lawsuit under the DCHRA.

See Bowie v. Gonzales, 433 F. Supp. 2d 24, 33 (D.D.C. 2006); Fowler v. Dist. of Columbia, 122

F. Supp. 2d 37, 40 (D.D.C. 2000) (noting that the DCHRA “generally does not require

exhaustion of administration remedies, except for employees of the District of Columbia

government”) (citing Hunt, 41 F. Supp. 2d 31, 37 (D.D.C. 1999)); Kennedy v. Dist. of Columbia,

654 A.2d 847, 863 (D.C. 1995) (“[W]e [have] clearly stated that D.C. government employees,

unlike non-government employees, are required to exhaust the administrative remedies available

to them under the D.C. Human Rights Act.”) (citing Williams v. Dist. of Columbia, 467 A.2d

140, 141 (D.C. 1983)). Nothing in the plain language of the DCHRA suggests that an

exhaustion requirement applies to non-District of Columbia government employees, and

InterPark has not provided the Court with any authority to support its position. Therefore, the

Court finds that all of Ndondji’s DCHRA claims survive this challenge.

B. Statute of Limitations

InterPark also argues that Ndondji’s discrimination claims are time-barred under the

DCHRA and requests that the Court exclude from this case all alleged discriminatory acts that

occurred prior to June 4, 2006. See Def.’s Mem. at 10-11; Def.’s Reply at 8. InterPark notes

that Ndondji has failed to specifically contest its DCHRA statute of limitations arguments. Id.

Under the DCHRA, claims must be filed within one year of the occurrence of the alleged

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discriminatory act. D.C. Code §§ 2-1403.04, 2-1403.16. As discussed earlier, InterPark has not

established that any of Ndondji’s discrimination claims are “conclusively time-barred” except

his 2004 transfer to a different location, to the extent that it can be considered as a distinct

alleged discriminatory act. Prior to discovery, the Court declines to dismiss any of Ndondji’s

claims on statute of limitations grounds at this time.

C. Failure to State a Prima Facie Case for Discrimination

Lastly, InterPark, adopting the same reasoning directed to Ndondji’s Title VII

discrimination claims, argues that Ndondji’s DCHRA discrimination claims, excluding his

termination claim, should be dismissed for failure to state a prima facie case of discrimination.

Discrimination and retaliation claims brought under the DCHRA are analyzed in the same

manner as such claims arising under Title VII. Mungin, 116 F.3d at 1553; see also Ali v. Dist. of

Columbia, 697 F. Supp. 2d 88, 93 n.6 (D.D.C. 2010) (“The D.C. Court of Appeals has made

clear that federal case law addressing questions arising in Title VII cases is applicable to the

resolution of analogous issues raised regarding DCHRA claims.”); Wicks v. Am. Transmission

Co. LLC, 701 F. Supp. 2d 38, 43-44 (D.D.C. 2010) (applying the same analysis used in

evaluating Title VII discrimination claims to evaluate DCHRA discrimination claims); Howard

Univ. v. Green, 652 A.2d 41, 45 & n.3 (D.C. 1994). The Court will accordingly apply Title VII

analysis to evaluate Ndondji’s DCHRA claims. For the reasons discussed earlier, then, the Court

agrees that Ndondji has failed to allege discriminatory acts that constitute “adverse employment

actions.” Therefore, his discrimination claims under the DCHRA, other than his claim based on

his termination, will be dismissed for failure to establish a prima facie case of discrimination.

InterPark has not challenged Ndondji’s retaliation claims under DCHRA on this basis, and hence

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they survive.

CONCLUSION

For the reasons stated above, the Court will grant in part and deny in part InterPark’s

motion to partially dismiss Ndondji’s amended complaint. As a result, Ndondji’s case may

move forward only with respect to the following claims: (1) discrimination under Title VII and

the DCHRA based on his termination and (2) retaliation under the DCHRA. A separate Order

accompanies this Memorandum Opinion.

/s/
JOHN D. BATES
United States District Judge
Dated: March 9, 2011

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