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Rayyan v. Virginia Department of Transportation

United States District Court, E.D. Virginia, Alexandria Division

January 12, 2017

SINAN RAYYAN, Plaintiff,



         THIS MATTER comes before the Court on Defendant's Motion for Summary Judgment.

         Virginia Department of Transportation ("Defendant") hired Sinan Rayyan ("Plaintiff") as a senior project manager in its Fredericksburg District on January 10, 2012. Plaintiff, an Arab-American and Muslim, is a licensed professional engineer. In the Fredericksburg District, there were three licensed professional engineers: Plaintiff, Kevin Northridge, and Michelle Shropshire. Northridge and Shropshire are both Caucasian. Plaintiff reported to Northridge until Northridge resigned in December 2013. After Northridge resigned and until Plaintiff was fired, he reported directly to Shropshire, who had been Northridge's supervisor.

         Defendant provided employees with regular performance reviews. An employee could be rated as a "contributor" or as "below contributor." In the first year of his employment with Defendant, Plaintiff was on a probationary status and received four performance reviews. He was marked as a "contributor" with areas for improvement. In March 2013, Northridge gave Plaintiff a Notice of Improvement Needed/Substandard Performance because Plaintiff struggled in project documentation, time management, and understanding VDOT processes.

         In April, June, and August of 2013, Northridge provided Plaintiff with three more counseling memos advising Plaintiff that his performance was deficient. Plaintiff received the April memo for failing to prioritize an important project. He received the June memo for taking a document with Shropshire's signature, changing the text of the document, and then using the signature page without Shropshire's knowledge or consent. He received the August memo for failing to establish intermediate deadlines for another project. All of these memos warned Plaintiff to improve his performance or risk facing disciplinary action.

         In October 2013, Plaintiff received an annual performance review that rated him as "below contributor." Along with noting the deficiencies mentioned earlier in 2013, Northridge's review stated that Plaintiff was failing to provide sufficient guidance to his subordinates, which resulted in several projects running behind schedule. Northridge indicated that Shropshire edited all of these performance documents, but he agreed that Plaintiff was struggling to meet Defendant's performance expectations. When Plaintiff responded to the October 2013 review, he did not raise any issues of racial or religious discrimination.

         On November 22, 2013, Plaintiff grieved his "below contributor" rating and stated that he thought he experienced "discrimination or retaliation by immediate supervisor." This was the first time he indicated any issue of discrimination or retaliation. Northridge was Plaintiff's direct supervisor at the time. Plaintiff's grievance did not mention Shropshire by name. Defendant's Civil Rights Division reviewed Plaintiff's claim and closed its review on December 12, 2013, because the claim lacked evidentiary support. Throughout his employment with Defendant, Plaintiff never asked for a religious accommodation or mentioned his race.

         Plaintiff was placed on a 90-day performance improvement and re-evaluation plan. Northridge supervised Plaintiff until Northridge resigned on December 4, 2013. At the time, Northridge was under intense scrutiny for his own performance issues. After Northridge resigned, Shropshire supervised Plaintiff until he was terminated on January 28, 2014, because his re-evaluation plan rank was "below contributor." Plaintiff met with Shropshire and Barbara Booker, the Senior Human Resources Consultant for the Fredericksburg District, for a due process panel on January 30, 2014. At the meeting, Plaintiff did not indicate that he thought his termination was motivated by racial or religious discrimination.

         On December 22, 2015, Plaintiff filed the present action in federal court. He stated four counts: (1) racial discrimination and termination in violation of Section 1981 of the Civil Rights Act of 1866; (2) racial discrimination and termination in violation of Title VII of the Civil Rights Act of 1964; (3) retaliation and wrongful discharge in violation of Title VII of the Civil Rights Act of 1964; and (4) religious discrimination and termination in violation of Title VII of the Civil Rights Act of 1964.

         Plaintiff asserts that Shropshire discriminated against his race through statements such as "that behavior may be okay in your country, but that's not how it's done in America, " or that she told Plaintiff's colleagues he was a "dumb Arab" who "would not be around for long." For his religious discrimination claim, Plaintiff points to a single incident where Shropshire allegedly told him while walking through a Christmas buffet line "don't worry, this does not have pork." On November 18, 2016, Defendant moved for summary judgment. On December 16, 2016, this Court heard oral argument on the motion, and the matter is now ripe for disposition.

         Under Federal Rule of Civil Procedure 56, a court should grant summary judgment if the pleadings and evidence show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In reviewing a motion for summary judgment, the court views the facts in the light most favorable to the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Once a motion for summary judgment is properly made, the opposing party has the burden to show that a genuine dispute of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).

         First, Defendant is entitled to summary judgment on Count I for discrimination under § 1981 of the Civil Rights Act of 1866. The exclusive remedy for a violation of rights secured in § 1981 is a suit under 42 U.S.C. § 1983. See Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 735 (1989); Dennis v. Cty. of Fairfax, 55 F.3d 151, 156 (4th Cir. 1995). A suit brought under § 1983 must be against a person. Will v. Michigan Dep't of State Police, 491 U.S. 58, 64 (1989). Here, Defendant is a State actor that does not qualify as a "person" for the purposes of a suit brought under § 1983. Plaintiff has not attempted to bring a claim under § 1983, nor could he. Thus, Plaintiff cannot maintain his first count for a violation of § 1981 of the Civil Rights Act of 1866.

         Second, Defendant is entitled to summary judgment on Counts II and III because Plaintiff has not produced evidence of racial discrimination or retaliation in violation of Title VII. A plaintiff can prove discrimination through direct evidence or under the McDonnell Douglas burden-shifting framework. Burns v. AAF-McQuay, Inc., 96 F.3d 728, 731 (4th Cir. 1996). There are three phases in the McDonnell Douglas framework: (1) plaintiff must establish a prima facie case; (2) after plaintiff presents a prima facie case, then defendant must show a legitimate, nondiscriminatory reason for the adverse employment action; and (3) then the burden shifts to plaintiff to prove the reason given by defendant is pretextual. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).

         Plaintiff has failed to provide direct evidence of racial discrimination or retaliation. A derogatory remark may be direct evidence of discrimination, but there must be a close temporal connection between the remark and the adverse employment action. See Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 512 (4th Cir. 1994). An occasional or sporadic use of a racial or ethnic slur by itself is ...

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