United States District Court, E.D. Virginia, Alexandria Division
M. HILTON UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on Defendant's Motion for
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
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
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.
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.
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.
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
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.
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.
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).
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.
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).
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 ...