Rowland v. Walker

245 F.Supp.2d 136

Dwight ROWLAND, Plaintiff, v. David WALKER, et al., Defendants.

No. CIV.A. 01-567(JMF).

United States District Court, District of Columbia.

February 21, 2003.

COPYRIGHT MATERIAL OMITTED

William Spencer Bach, Washington, DC, for Plaintiff.

Michael C. Johnson, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

FACCIOLA, United States Magistrate Judge.

Currently ripe and ready for resolution is Defendants' Motion for Summary Judgment ("Defs.Mot."). For the reasons articulated below, defendants' motion will be granted.

BACKGROUND

Dwight Rowland ("plaintiff) is suing David Walker, the Comptroller General of the General Accounting Office ("Walker"), Michele M. Hamilton, a Human Resources Manager at GAO ("Hamilton"), and Timothy DiNapoli, a Supervisor at GAO ("DiNapoli"), for employment discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e et seq.¹ Plaintiff claims that he was discriminated against because of his race and gender, that he endured a hostile work environment, and that he was retaliated against.

DISCUSSION

I. Defendants' Motion to Dismiss is not Premature

It is legitimate to oppose a motion for summary judgment by submitting an affidavit attesting that one cannot "for reasons stated present by affidavit facts essential to justify the party's opposition." FED. R. CIV. P. 56(f). Plaintiff attempts to meet this burden by insisting that he never received (1) the performance evaluations and progress reports for the African American Band ID evaluators of 1998 and (2) copies of the e-mails of the persons he named in his Request for Entry upon Land.²

Defendants first point out that plaintiff never requested information regarding the performance evaluations of African American Band ID evaluators during discovery. Defendants' Reply to Plaintiffs Opposition to Defendants' Motion for Summary Judgment ("Defs.Reply") at 3 n. 1. Defendants then explain that plaintiff narrowed his request for e-mail to all e-mails created by two persons during a certain period of time and that defendants sent these emails to plaintiffs counsel by a letter dated June 13, 2002. Id & Exhibit 20 (letter transmitting e-mails).

Plaintiff also seeks to forestall defendants' motion because he wishes to secure affidavits from James Driggins and from unnamed "coworkers, supervisors who rated Plaintiff as `fully successful' in his job performance." Affidavit of William S. Bach, Esquire. Additionally, plaintiffs counsel indicates a desire to secure affidavits from persons who rated plaintiff as fully successful before defendants' witnesses in this case found good cause to terminate him. Memorandum of Points and Authorities in Support of Plaintiffs Opposition to Defendants' Motion for Summary Judgment ("Plains.Opp.") at 10.

None of this is reason to postpone resolution of defendants' motion. First, according to defendants' counsel, plaintiff secured the emails on June 13, 2002. It is now several months later and plaintiff has never sought leave to use them to supplement his earlier opposition on any ground whatsoever. They, therefore, cannot possibly be relevant to any argument plaintiff wishes to make to defeat defendants' motion.

Second, defendants' assertion that plaintiff never sought the performance evaluations and progress reports of African American Band ID evaluators in discovery is uncontradicted. Since plaintiff never sought them in the first place, their absence cannot possibly be grounds under Fed.R.Civ.P. 56(f) to postpone resolution of a motion for summary judgment. The deadline to complete discovery in this case has come and gone. It cannot possibly be the law that a party can forego seeking information by discovery and, when confronted by a motion for summary judgment, seek discovery it never sought in the first place to defeat the motion. Fed. R.Civ.P. 56(f) cannot possibly be construed to justify such a result and it would be hard to imagine how one could more mock the meaning of a discovery deadline.

Plaintiffs attempt to forestall resolution of the motion based on what his counsel wishes to secure fares no better. First, James Driggins was deposed in this case. Plaintiff concedes as much, but indicates that "at no time has the Plaintiff deposed him or had the opportunity to obtain an affidavit from him." Plains. Opp. at 3. But nothing prevented plaintiffs counsel from eliciting whatever he wished to elicit that would support plaintiffs case during Driggins' deposition. That plaintiff has not deposed him is immaterial. I know of no rule of procedure that permits each witness to be deposed twice, once by a party's opponent and then by the party, with each side permitted to ask different questions during "plaintiffs deposition" and then during "defendant's deposition." As for plaintiffs inability to secure an affidavit from Driggins, no reason whatsoever is given for this inability. If he was available for a deposition, why was he unavailable to sign an affidavit?

Second, plaintiff wants to secure affidavits from plaintiffs supervisors who evaluated his performance before he went to work as a Band-1 evaluator with the General Accounting Office. Again, discovery in this case began on September 17, 2001, and ended on February 28, 2002. Defendants were granted until at least May 6, 2002, to file their motion for summary judgment. Hence, plaintiff had from September 17, 2001, to May 6, 2002, to secure affidavits from plaintiffs supervisors and did not do so. Moreover, unless the duties plaintiff had in all of the jobs at issue were identical, the manner in which one person rated him on one job is irrelevant to how someone else rated him on another job. Thus, the affidavits plaintiff seeks are irrelevant.³

A request to postpone resolution of a motion for summary judgment when the party opposing the motion has failed to avail himself of discovery to secure the information should be denied. Beattie v. Madison County School Dist., 254 F.3d 595, 606 (5th Cir.2001); Doty v. Illinois Cent. R.R. Co., 162 F.3d 460, 462 (7th Cir.1998); Alexander v. FBI, 186 F.R.D. 180, 185 (D.D.C.1999). See 10B CHARLES A. WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE, § 2741 (3d 1998). If failing to take discovery is no excuse, then so is failing to secure affidavits from witnesses one can find on one's own. Finally, as will become clear, plaintiff cannot establish that the affidavits he never secured, but wants to get now, would have any affect whatsoever on my resolution of the issues presented by the defendants' motion because affidavits from people who rated her in a certain way have nothing to do with why the government's motion must be granted. Hence, there is no reason whatsoever to postpone resolution of defendants' motion. See Chance v. Pac-Tel Teletrac Inc., 242 F.3d 1151 (9th Cir.2001).

II. The Case Against Hamilton and DiNapoli Must Be Dismissed

Under Title VII, federal employees claiming discrimination against the federal government must name "the head of the department, agency, or unit," as the defendant in an civil action. 42 U.S.C.A. § 2000e-16(c). While plaintiff properly named David Walker, Comptroller General of the National Security and International Affairs Division of the General Accounting Office, as a defendant, he also named Hamilton and DiNapoli as defendants. Hamilton was Human Resource Manager of the International Affairs Division and DiNapoli was a supervisor at GAO. Thus, while Hamilton and DiNapoli were employed by GAO, they were not department, agency, or unit heads and therefore cannot be sued in this Title VII action. See Wilkins v. Daley, 49 F.Supp.2d 1 (D.D.C. 1999). Therefore, they will be dismissed as party defendants.

III. Plaintiffs Burden

To defeat defendants' motion for summary judgment, plaintiff must point to admissible evidence that would permit a reasonable juror to return a verdict in his favor.⁴

IV. Plaintiffs Claim of Disparate Treatment Based on Race and Gender Must Be Dismissed

Plaintiff claims that he was discriminated against based on disparate treatment because of his race, African American, Compl. 114, and his gender. Compl. 116.

As to plaintiffs race claim, plaintiff alleges that whites were given "significantly more on the job training, coaching and mentoring ... [and] better assignments with more potential to develop basic skills critical to success as an evaluator." Compl. 14. As to plaintiffs claim of discrimination based on gender, plaintiff fails to make any allegations at all regarding the treatment of women compared to the treatment he received.

As noted above in footnote 4, all justifiable inferences are drawn in favor of the non-moving party. Additionally, the nonmoving party must do more than cast doubt on the facts-he must provide evidence that would allow a reasonable juror to find in his favor. Plaintiffs claim of discrimination, whether based on race or gender, fails completely. The only individual that plaintiff names as a potential comparator is Joanna Ayers ("Ayers"), whom the court presumes, based on the wording of plaintiffs opposition to the summary judgment motion, to be a "non-black female." Plains. Opp. at 7. However, when questioned about the opportunities that plaintiff claims Ayers was given that plaintiff was not, plaintiff could not provide any proof beyond his belief that this had occurred. In fact, in his deposition, plaintiff conceded that he has no proof that Ayers was given the opportunity to 1) participate in or lead meetings, Defendants' Notice of Filing of Exhibits in Support of Defendants' Motion for Summary Judgment ("Defs.Exhibits"), Tab 9, at 96, 2) draft chapters of reports, id., 3) design how a job would be accomplished, id, at 99, 4) conduct interviews, id, and 5) take courses, id, at 102. Thus, he fails utterly to meet his burden of establishing that he was treated differently from anyone who did not share his race or gender.

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