UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION 2211 Richard B. Russell Federal Building
and United States Courthouse
75 Spring Street, S.W.
Atlanta, GA 30303-3309 KHALDOUN KHATTAB, )
)
Pro Se Plaintiff, forma pauperis ) CIVIL ACTION FILE
) NO. 1:07-CV-196-RW. V
)
MOREHOUSE SCHOOL OF )
MEDICINE, )
)
Defendant . ) Honorable Judge Richard W Story
Honorable Judge Linda T Walker MEMORANDUM OF LAW in SUPPORT Of
Plaintiffs Motions and Objections to Defendant MSJ. COMES NOW khaldoun khattab , the Pro Se Plaintiff herein, and files MEMORANDUM OF LAW in SUPPORT Of Plaintiffs Motions and Objections to Defendant MSJ. , and addresses this Court as Follows : Jurisdiction.
This Honorable Court has jurisdiction over Plaintiffs’ Title VII and 42 U.S.C. § 1981 claims pursuant to 28 U.S.C. § 1331, and over his Georgia law claims pursuant to 28 U.S.C. § 1367(a), which provides supplemental jurisdiction over state law claims. Standard Summary Judgment approach This Honorable Court is bound by accepted standards with respect to
Any defendant Motion for summary Judgment. At the summary judgment stage the court’s function is NOT to weigh the evidence and determine the truth of the matter, but rather to determine whether there is a genuine issue for
trial. See Anderson, 477 U.S. at 249. In doing so, the court must construe the facts and inferences in the light most favorable to the non-moving party. Curley v. Klem, 298 F.3d 271, 277 (3d Cir. 2002). On a motion for summary judgment, the Court must view all the evidence and all factual inferences drawn there from in the light most favorable to the nonmoving party and determine
whether that evidence could reasonably sustain a jury verdict. Celotex, 477 U.S. at 322-23; Allen, 121 F.3d at 646. The Court must resolve all factual doubts and draw all reasonable inferences in favor of the party
Opposing the motion for summary judgment. See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1077 n.1 (3d Cir. 1996). A factual dispute is genuine if a reasonable jury could return a verdict for the non-movant and it is material if, under the substantive law, it would affect the outcome of the suit. See id. at 248. The moving party must show that if the evidentiary material of record were reduced to admissible evidence in court, it would be insufficient to permit the non-moving party to carry its burden of proof. See Celotex v. Catrett, 477 U.S. 317, 318 (1986).
The material fact or facts become genuine when a reasonable trier of fact could render a verdict for the non-moving party. Healey v. New York Life Ins. Co., 860 F.2d 1209, 1219 n.3 (3d Cir. 1988), cert. denied, 490 U.S. 1098 S.Ct. 2449 (1989). At summary Judgment a defendant relying on a purely subjective reason for discharge will face a heavier burden of production than it otherwise would.” Id. (citing Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 258 (1981); Robbins v. White-Wilson Medical Clinic, Inc., 660 F.2d 1064 (5th Cir. Unit B 1981)).
Defendant Morehouse is relying on a purely subjective
Opinion of a few limited individuals who never worked with plaintiff or supervised him inside any Hospital on earth , therefore All plaintive evidence must be forwarded to a Jury trial. Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, a district court may grant a motion for summary
judgment only when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any show that there is NO genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.” We must view the evidence
presented to the trial court, and any reasonable inferences
drawn therefrom, in the light most favorable to the nonmoving
party. See Curley v. Klem, 298 F.3d 271, 276-77 (3d
Cir. 2002). When the factual assertions of the party
opposing the motion conflict with those of the movant, we
must resolve those conflicts in favor of the former. See
Levendos, 860 F.2d at 1229 (citing Jackson v. University of
Pittsburgh, 826 F.2d 230, 232 (3d Cir. 1987), cert. denied,
484 U.S. 1020 (1988)). A factual issue is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). Harassment
Harassment because of national origin, including ethnic slurs and other verbal or physical conduct, is discriminatory if the conduct:
• Creates or is intended to create an intimidating, hostile, offensive working environment;
• Unreasonably interferes with work performance;or
• Otherwise adversely affects an individual's employment
Opportunities. Employers may be liable for harassment:
• By their supervisors, whether or not they knew of its occurrence
• By employees and nonemployees if they knew or should have
known of the conduct and did not take steps to correct it
Supervisor liability. Under U.S. Supreme Court decisions, employers are responsible for all forms of unlawful harassment by supervisors if the harassment culminates in a tangible employment action (e.g., firing,failure to promote, demotion, and/or reassignment) (Faragher v. City ofBoca Raton, 524 U.S. 775 (1998); National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002)). Tort Actions In tort actions, Plaintiffs must demonstrate that they have "standing" to sue . They must show that :
1) they have suffered an "injury in fact" that is concrete and particularized and actual or imminent, not conjectural or hypothetical ; 2) the injury is fairly traceable to conduct of the
defendant ; and, 3) it is likely, and not merely speculative, that the injury will be redressed by a favorable decision . Lugan v . Defenders of Wildlife , 504 U .S . 555, 560-61, 112 S . Ct . 2130, 119 L . Ed . 2d 351, (1992) . The United States Supreme Court has held that standing may be predicated on noneconomic injury . Valley Forge Christian College v . Americans United for Separation of Church and State, Inc ., 454 U .S . 464, 486, 102 S . Ct . 752, 70 L . Ed . 2d 700 (1982)). Discrimination Judgment approach This Honorable Court is bound by accepted standards with respect to
Analyzing Discrimination case as established by the US Supreme Court.
There are two standard methods of proving a case of discrimination under Title VII: the method set forth in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (mixed-motive) and the method established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)(pretext). The Supreme Court of the United States unanimously held that an employee can win a discrimination suit without proving intent or introducing direct evidence of discrimination. Reeves v. Sanderson Plumbing Products, Inc., 120 S. Ct. 2097 (2000). A-McDonnell Douglas Analysis/Approach. Under the McDonnell Douglas analysis, plaintiff has the initial burden of demonstrating a prima facie case of discrimination. To establish a prima facie case, plaintiff must show (1) he is a member of a protected class;
(2) he was qualified for her job and his job performance was satisfactory or he did a Legitimate work
(3) he suffered an adverse employment action; and
(4) other employees who are not members of the protected class were retained under apparently similar circumstances. Bryant v. Bell Atlantic Maryland, Inc., 288 F.3d 124, 133 (4th Cir. 2002). Under some circumstances, the fourth element can be established by presenting evidence raising an inference of discrimination. See Miles v. Dell, Inc., 429 F.3d 480, 486-87 (4th Cir. 2005); EEOC v. Sears Roebuck & Co., 243 F.3d 846, 851 n.2 (4th Cir. 2001)(citing Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981)).
Once plaintiff has established a prima facie case, the burden shifts to the defendant to produce a legitimate, nondiscriminatory reason for the termination. Burdine, 450 U.S. at 254. This is merely a burden of production, not of persuasion. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 506 (1993). B-Mixed-Motive establishment of Discrimination
Price Waterhouse 490 U.S. 228 (1989) Plaintiff may also proceed under the mixed-motive method of establishing intentional discrimination. Under this method, a plaintiff must present sufficient evidence, direct or circumstantial, that, despite the existence of legitimate, nondiscriminatory reasons for the adverse employment action, an illegal factor (i.e., race, religion ) was a motivating factor in the decision. Hill, 354 F.3d at 284-86. Plaintiff need not show race was the sole motivating factor but only that it was a motivating factor. Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). The racial bias must come from a relevant decision maker. Also, the protected trait “must have actually played a role in the. US Law/ Genuine Facts DISCUSSION
Title VII & (42 U.S.C. §1981)
Plaintiff brings part of the above-captioned action against Defendant Morehouse(MSM) pursuant to Title VII of theCivil Rights Act of 1964, 42 U.S.C. §2000e, et. seq., and 42 U.S.C. §§ 1981,1983, 1981a(b)(1), alleging he was subjected to employment discrimination by Defendant on the basis of his color, race ,religion, And national origin. Plaintiff also raises state law claims of intentional infliction of emotional distress. Further, Plaintiff seeks his former attorney fees pursuant to 42 U.S.C. § 1988. Morehouse claimed that this court properly exercises jurisdiction over the instant matter and is the appropriate venue. Section 1981 (42 U.S.C. §1981) . Covers discrimination in the making and enforcement of contracts by reason of race, including color or national origin differences, based on what was once erroneously thought of as race (Arabs, Jews, Italians etc.). Shaare Tefila Congregation, Cal., 481 U.S. 615 (1987); St.
Francis College v. Al-Khazraji, 481 U.S. 604 (1987). In 1991 Civil Rights Act, Section 1981 was amended to overrule Supreme Court decision in Patterson v. McLean Credit Union, 109 S. Ct. 2363
(1989). Section 101 of the Civil Rights Act, codified as 42 U.S.C. § 1981(b) provides that: "For purposes of this section, the term 'make and enforce contracts' includes the making, performance, modification and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." Discrimination based on alienage can be Section 1981 violation, Anderson v. Conboy, 156 F.3d 167 (2d Cir. 1998)(union fired business representative
because he was not a citizen;
§ 1981 provides that people of all races “shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens,” and prohibits racial
discrimination in “the making,performance,modification, and termination of contracts,and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” 42 U.S.C. § 1981; Reynolds v. Sch. Dist. No. 1, 69 F.3d 1523, 1532 (10th Cir. 1995). Accordingly, an essential element of a § 1981 claim is “an actual loss of a
contract interest.”Hampton v. Dillard Dep’t Stores, Inc., 247 F.3d 1091, 1101 n.1 (10th Cir. 2001).(Plaintiff lost his employment so he established the essential element of section 1081 42 U.S.C. § 1981
§ 1981 claims are not subject to the statute of limitations for Title VII claims, but are subject to the statute of limitations for personal injury claims. The Fifth Circuit has held that discrimination claims brought pursuant to section 1981 are governed by the same evidentiary framework applicable to employment discrimination claims
under Title VII. Id. at 281; Walker v. Thompson, 214 F.3d 615, 625 (5th Cir. 2000). 42 U.S.C. § 1981 provides: “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to
make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens . . .” 42 U.S.C. § 1981(a).
Congress amended § 1981 to apply to “all phases and incidents of the contractual relationship, including discriminatory contract terminations.”
Rivers v. Roadway Exp., Inc., 511 U.S. 298 (1994); See 42 U.S.C. § 1981(b). A. Title VII (42 U.S.C. § 2000e et seq.) 1. Covers all employment discrimination by covered employers if employment discrimination based upon race, color, religion, gender, national origin; also covers sex or race
harassment even without direct economic injury, following Civil Rights Act of 1991; see Harris v.Forklift Systems, Inc., 114 S.Ct. 367 (1993) -2. Civil Rights Act of 1991 (Section 102) adds a new provision to 42 U.S.C. §1981, Section 1981a, providing for compensatory and punitive damages in Title VII actions, subject to damage limitations found in 1981a(b)(3). Damages covers hedonic damages (loss of the enjoyment of life). 3-. The Supreme Court held in Kolstad v. American Dental
Association, 119 S.Ct. 2118 (1999) that egregious or outrageous conduct need NOT be shown.( Question arises whether punitive damages can be awarded only on showing that discriminatory conduct was egregious.) 4. Jury trial now provided for in Title VII cases, see Section 102(c) of 1991 Civil Rights Act, 42 U.S.C. §1981a(c). 5-Employee can succeed under Title VII if he/she shows discriminatory impact of employment practice, Newark Branch N.A.A.C.P. v. City of Bayonne, 134 F.3d 113, 121 (3d
Cir. 1998), i.e., that a "facially neutral standard had caused a significantly discriminatory hiring pattern." 5-Supreme Court answered question whether cap on fees for “future pecuniary losses” contained in 42 U.S.C. §1981a(b)(3) covers front pay award as well as compensatory and
punitive damages. In Pollard v. E.I.DuPont De Nemours Co., 121 S. Ct. 1946 (2001) Court held that caps do not apply to front pay awards. Title VII Liability In Burlington Industries, Inc. v. Ellerth, 524 U.S. 742
(1998) and Faragher v. City of Boca Raton, 524 U.S. 775
(1998), the Supreme Court addressed the scope of the
vicarious liability of an employer for the discriminatory and
harassing conduct of its supervisors in the context of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et
seq. (“Title VII”). The Court also sought to clarify the
confusion among the Courts of Appeals as to the scope and
proper grounds for such liability. To that end, the Court
held that an employer shall be strictly liable to a victimized
employee for an actionable hostile work environment
created by a supervisor, when the discrimination or
harassment at issue results in a “tangible employment
action.”1 Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807 B. Title VI (42 U.S.C. §2000d) 1. Prohibits discrimination by any recipient of federal financial assistance by reason of race, color, or national origin.
No person in the United States shall, on the ground of race, color, or national
origin be excluded from participation in, be denied the benefits of or be
subjected to discrimination under any program or activity receiving federal
assistance . 2. Since Morehouse School of Medicine admitted receiving federal financial assistance, Title VI claims could be brought by Plaintiff claiming discriminatory treatment. 3-Supreme Court held in Alexander v. Sandoval 121 S.Ct. 1511 (2001) discriminatory intent must be shown for any action brought under Title VI, and NO claim can be brought under regulations issued under Title VI. Retaliation Scope
A recent U.S.Supreme Court ruling has interpreted retaliation to include any action by an employer--whether job-related or not--that is "materially adverse" and could dissuade a reasonable employee or job applicant from exercising protected rights (Burlington Northern and Santa Fe Ry. Co. v. White, 126 S.Ct. 2405 (2006)). Under the Court's decision, retaliatory actions are not limited to actions that are employment-related (i.e., that affect the terms and conditions of employment or that occur in the workplace), but includeany action by an employer that has a materially adverse effect and could reasonably deter a person from engaging in activity protected by Title VII. Motivation
There are two methods of proving a case of intentional discrimination under
Title VII: the method set forth in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (mixed-motive)
and the method established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)(pretext). There are two methods of proving a case of intentional discrimination under
Title VII: the method set forth in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (mixed-motive)
and the method established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)(pretext). Under the McDonnell Douglas analysis, plaintiff has the initial burden of demonstrating a prima facie case of discrimination. To establish a prima facie case, plaintiff must show (1) he is a member of a protected class;
(2) she was qualified for her job and her job performance was satisfactory; (Legitimate work)
(3) she suffered an adverse employment action; and
(4) other employees who are not**********
members of the protected class were retained under apparently similar circumstances. Bryant v. Bell
Atlantic Maryland, Inc., 288 F.3d 124, 133 (4th Cir. 2002). Under some circumstances, the fourth element can be established by presenting evidence raising an inference of discrimination. See Miles v. Dell, Inc., 429 F.3d 480, 486-87 (4th Cir. 2005); EEOC v. Sears Roebuck & Co., 243 F.3d 846, 851 n.2 (4th Cir. 2001)(citing Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981)).
Once plaintiff has established a prima facie case, the burden shifts to the defendant to produce a legitimate, nondiscriminatory reason for the termination. Burdine, 450 U.S. at 254. This is merely a burden of production, not of persuasion. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 506
(1993). Plaintiff may also proceed under the mixed-motive method of establishing intentional discrimination. Under this method, a plaintiff must present sufficient evidence, direct or circumstantial, that, despite the existence of legitimate, nondiscriminatory reasons for the adverse employment action, an illegal factor (i.e., race) was a motivating factor in the decision. Hill, 354 F.3d at 284-86. Plaintiff need not show race was the sole motivating factor but only that it was a motivating factor. Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). The racial bias must come from a relevant decision maker.8 Also, the protected trait “must have actually played a role in the The Supreme Court of the United States unanimously held that an employee can win a discrimination suit without proving intent or introducing direct evidence of discrimination. Reeves v. Sanderson Plumbing Products, Inc., 120 S. Ct. 2097 (2000).
In Reeves, the Supreme Court held that an employer is not entitled to a judgment as a matter of law when the employee’s evidence consists exclusively of a prima facie case of discrimination combined with sufficient evidence for the trier of fact to disbelieve the defendant’s legitimate , non-discriminatory explanation for the challenged adverse employment action .
The Supreme Court pointed out that an employee’s initial or prima facie case along with evidence that the employer’s explanation was false can be but will not always be adequate to sustain a jury’s finding of liability (One very important practical lesson is taught by the case. Employers Like defendant and their lawyers must be straightforward and honest about the reasons for the termination. As this case demonstrates, if employers are not honest, juries will have the chance to presume the worst and infer discriminatory intent).
(this Court should note that Plaintiff can easily prove that Morehouse provided a false and Non logic reasons for terminating plaintiffs employment –see termination allegation and the section about plaintiffs Legitimate and superior work performance).
In Swierkiewicx v. Sorema N.A., 122 S. Ct. 992 (2002). The U.S. Supreme Court held that a plaintiff in an employment discrimination lawsuit is not required to plead facts establishing a prima facie case of discrimination under the framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). That case set forth four elements of a prima facie case of employment discrimination: (1) membership in a protected group, (2) qualification for the job in question, (3) an adverse employment action, and (4) circumstances that support an inference of discrimination. Here, Swierkiewicz, a 53-year-old Hungarian native, was fired by a reinsurance company. He sued the company, alleging that he had been terminated because of his age, in violation of the Age Discrimination in Employment Act (AREA), 29 U.S.C. sec 621 et seq.; and because of his national origin, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. secs 2000e et seq.