Jimenez v. Wolf

ROLANDO JIMENEZ, Plaintiff, v. CHAD R. WOLF, Defendant.

Case No. 17-cv-2731 (CRC)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

September 24, 2020

MEMORANDUM OPINION

Plaintiff Rolando Jimenez is an employee of U.S. Citizenship and Immigration Services ("USCIS"), a component of the Department of Homeland Security ("DHS"). He brings a multitude of claims against Chad R. Wolf, in his capacity as acting Secretary of Homeland Security, alleging that USCIS has discriminated against him based on his race, national origin, and age, and retaliated against him for asserting his Equal Employment Opportunity ("EEO") rights. In a prior opinion, this Court dismissed many of Mr. Jimenez's claims for either failure to exhaust administrative remedies or failure to state a claim. Jimenez v. McAleenan (Jimenez I), 395 F. Supp. 3d 22, 27 (D.D.C. 2019). Of Jimenez's remaining claims, all but one alleges discrimination based on his non-selection for eleven positions for which he applied in 2011 and 2012. Prior to discovery, the government moved for summary judgment on Jimenez's non-selection claims. The Court will grant the motion.

I. Background

Mr. Jimenez was born in the Dominican Republic in 1963 and has worked for USCIS and its predecessor agency since 1996. Am. Compl. ¶¶ 18-19. From 2006 until October 2016, he worked as an Immigration Officer in USCIS's Fraud Detection National Security Headquarters based in Washington, DC. Id. ¶ 20. Since then, he has served as a GS-14 Immigration Officer in USCIS's Immigrant Investor Program Office, also in Washington. Defendant's Statement of Facts Not in Genuine Dispute ("SOMF") ¶ 2, ECF 35-1. Prior to the events at issue here, he engaged in protected EEO activity.

Following three agency EEO complaints, Jimenez brought suit in this Court, advancing eight counts based on twenty separate underlying events. He alleges he has been discriminated against "based on his race (white),¹ national origin (Hispanic), age (YOB: 1963), and reprisal (prior EEO activity)." Am. Compl. ¶ 1. After filing an answer, the government moved for judgment on the pleadings, which the Court largely granted due to Jimenez's failure to exhaust and to state a claim. See Jimenez I, 395 F. Supp. at 31-44. At this point, only the following claims remain: Counts II (retaliation based on prior EEO activity), III (race discrimination), V (national origin discrimination), and VII (age discrimination) to the extent that these claims are based on what the Court will refer to as Events 3 through 13 and 17. (In its prior opinion, the Court laid out a numbering convention corresponding to Jimenez's allegations, which it will continue to use for the sake of clarity.)

As relevant here, Events 3 through 13 concern Jimenez's non-selection for various USCIS positions during a six-month span in 2011 and 2012. The complaint contains no details whatsoever about these non-selections. It alleges only that "[b]etween June 7, 2012 and September 14, 2012,² Plaintiff applied but was not selected for eleven positions within theAgency," and "Plaintiff was qualified for each of the positions but was passed over without explanation." Am. Compl. ¶¶ 26, 28. Based on this scant description, the agency has determined that Jimenez is referring to the non-selections that were part of his 2012 EEO Complaint, Def.'s Mot. for Summ. J. ("MSJ") 2 n.2, and he accepts this characterization of his claims in his opposition to summary judgment, Pl.'s Opp. ("Opp.") 3-22. Given the multitude of claims, the specific facts relating to each non-selection will be discussed in context below.

All eleven of these non-selections were part of Jimenez's 2012 EEO complaint. After investigating the claims, USCIS issued a nine-volume Report of Investigation, which contained some twenty-eight witness affidavits and substantial additional evidence collected by the agency. Thereafter, Jimenez requested a hearing before a U.S. Equal Employment Opportunity Commission Administrative Judge ("AJ"). Extensive discovery took place as part of the litigation before the AJ, including exchanges of interrogatories and document requests, and associated responses. When Jimenez failed to appear for his deposition, the AJ imposed sanctions, dismissing Jimenez's hearing request and remanding the case to the agency. See Mot. for J. Pleadings or Summ. J., Ex. 23 at 9, ECF 31-5. On remand, DHS's Office for Civil Rights and Civil Liberties ("CRCL"), the entity responsible for issuing final agency decisions ("FADs") for USCIS, directed USCIS to conduct a further investigation regarding, as relevant here, Jimenez's non-selection for a vacancy in Monterrey, Mexico (Event # 6) and non-selection for a Supervisory Immigration Services Officer vacancy in Miami (Event # 9), so that the agency could make a determination concerning those events. Mot. for J. Pleadings or Summ. J., Ex. 24,2012 CRCL FAD at 13, ECF 31-5. The agency conducted a further investigation and issued a supplemental ROI, bringing the ROIs to 10 volumes. Id.

CRCL proceeded to issue a FAD, which concluded that no discrimination or retaliation had occurred. Jimenez appealed that decision to the EEOC Office of Federal Operations, which affirmed. Mot. for J. Pleadings or Summ. J., Ex. 25, 2012 EEOC Decision at 31-33, ECF 31-5. Jimenez then commenced this litigation. The government now moves for summary judgment on the eleven non-selection claims.

II. Legal Standards

Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The party seeking summary judgment must "show[] that the materials cited do not establish the . . . presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed R. Civ. P. 56(c). A fact is material if it "might affect the outcome of the suit under the governing law," and a factual dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Additionally, for a factual dispute to count as "genuine," the nonmoving party must establish more than "[t]he mere existence of a scintilla of evidence in support of [its] position," id. at 252, and cannot rest on "mere allegations" or conclusory statements, see Equal Rights Ctr. v. Post Props., 633 F.3d 1136, 1141 n.3 (D.C. Cir. 2011). The Court is only required to consider the materials explicitly cited by the parties, but may on its own accord consider "other materials in the record." Fed. R. Civ. P. 56(c)(3).

In deciding a motion for summary judgment, courts must generally "view the facts and draw reasonable inferences in the light most favorable to the [non-moving] party." Scott v. Harris, 550 U.S. 372, 378 (2007) (internal citations and quotation marks omitted). In making this determination, the court "may not make credibility determinations or otherwise weigh the evidence." Johnson v. Perez , 823 F.3d 701, 705 (D.C. Cir. 2016). Thus, "a party may oppose summary judgment with sworn testimony, and . . . that party's own sworn testimony can alone defeat summary judgment." United States v. Seventeen Thousand Nine Hundred Dollars ($17,900.00) in U.S. Currency, 859 F.3d 1085, 1092 (D.C. Cir. 2017). Nevertheless, there exist "narrow circumstances under which courts may 'lawfully put aside testimony [because it] is so undermined as to be incredible.'" Id. (quoting Robinson v. Pezzat, 818 F.3d 1, 10 (D.C. Cir. 2016)). Specifically, courts may set aside self-serving and uncorroborated testimony "when a plaintiff's claim is supported solely by the plaintiff's own self-serving testimony, unsupported by corroborating evidence, and undermined either by other credible evidence, physical impossibility or other persuasive evidence that the plaintiff has deliberately committed perjury." Chenari v. George Washington University, 847 F.3d 740, 747 (D.C. Cir. 2017) (emphasis added) (internal citation and quotation marks omitted). In other words, if "opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Lash v. Lemke, 786 F.3d 1, 6 (D.C. Cir. 2015) (quoting Scott, 550 U.S. at 380).

III. Analysis

As threshold matters, the parties' briefing raises two questions regarding proper summary judgment procedures: first, whether the government's motion is premature prior to any discoveryhaving been conducted in this Court; and, second, whether the Court should consider the government's statement of undisputed facts to be conceded because Jimenez failed to respond to it in the manner required by Local Civil Rule 7(h). The Court will tackle these questions before considering the merits of Jimenez's non-selection claims.

A. Summary Judgment Procedural Rules

1. Pre-Discovery Summary Judgment

Jimenez urges the Court to deny the government's summary judgment motion because "[p]re-discovery summary judgment motions are usually premature and hence disfavored." Bourbeau v. Jonathan Woodner Co., 600 F. Supp. 2d 1, 3 (D.D.C. 2009). Jimenez is correct, as this Court has recently noted, that summary judgment is ordinarily appropriate only after the plaintiff has been given an adequate opportunity to conduct discovery. See, e.g., Curtis v. Dep't of Vet. Affairs, 19-cv-3271 (CRC), ECF 39 (D.D.C. June 30, 2020) (Cooper, J.); Glasgow v. United States Dep't of Def.'s, No. 18-CV-136, 2018 WL 5886654, at *3 (D.D.C. Nov. 9, 2018) (Cooper, J.). Nevertheless, "even at [an] early stage, a district court may deny a request for discovery and grant a motion for summary judgment when the non-moving party 'offer[s] no reasonable basis to suggest that discovery' will bear out its claims.'"...