McWay v. Lahood ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BERNARD MCWAY, :
:
Plaintiff, : Civil Action No.: 09-1541 (RMU)
:
v. : Re Document Nos.: 5, 6, 7
:
RAY LAHOOD, in his official capacity as :
Secretary of Transportation, :
:
Defendant. :
MEMORANDUM OPINION
DENYING WITHOUT PREJUDICE THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT;
GRANTING THE PLAINTIFF’S MOTION FOR DISCOVERY; DENYING AS MOOT THE
PLAINTIFF’S MOTION TO STRIKE THE DEFENDANT’S EXHIBITS
I. INTRODUCTION
This matter comes before the court on the defendant’s motion for summary judgment
and the plaintiff’s motions for discovery and to strike the defendant’s exhibits. The plaintiff is
an African-American employee of the Federal Motor Carrier Safety Administration (“FMCSA”)
in the Department of Transportation. He alleges that the defendant discriminated against him
based on his race and retaliated against him when he complained about the discrimination.
Before discovery in this case began, the defendant filed the instant motion for summary
judgment. The plaintiff opposes the motion and, in the alternative, asks the court to defer ruling
on the motion until he has had an opportunity to obtain discovery. Because summary judgment
is ordinarily inappropriate before discovery is complete, and because the court concludes in this
case that the plaintiff is entitled to obtain discovery before being required to respond to the
defendant’s motion for summary judgment, the court denies without prejudice the defendant’s
motion and grants the plaintiff’s motion for discovery. As a consequence, the court denies as
moot the plaintiff’s motion to strike the exhibits filed in support of the defendant’s motion for
summary judgment.
II. FACTUAL & PROCEDURAL BACKGROUND
The plaintiff has been employed by the FMCSA since early 2001. Compl. ¶¶ 3, 6. He
alleges the following facts in his complaint: in October 2005, he was promoted to the position of
Division Program Specialist in the Washington, D.C. division of the FMCSA, earning a GS-13
salary. Id. ¶ 6. In October 2006, the plaintiff applied for the position of Supervisory Highway
Safety Specialist in the Eastern Service Center of the FMCSA, a GS-14/15 position. Id. ¶ 9. In
December 2006, the plaintiff voiced his opposition to what he perceived to be “ongoing racism
and a hostile work environment.” Id. ¶ 11. The defendant chose not to hire the plaintiff to fill
the Supervisory Highway Safety Specialist position, selecting a Caucasian male instead. Id. ¶
18. Between February 2007 and December 2007, the defendant committed several acts of
retaliation against the plaintiff because he had complained about workplace discrimination,
including reassigning some of the plaintiff’s job responsibilities and giving the plaintiff lower
performance ratings than those the plaintiff had received prior to engaging in protected activity.
Id. ¶¶ 19-22.
The plaintiff commenced this action on August 14, 2009. See generally Compl. At an
initial status hearing held on December 17, 2009, the court ordered that discovery close on
October 28, 2010 and that summary judgment motions be filed on or before December 28, 2010.
See Minute Entry (Dec. 17, 2009). That same day, however – before discovery had begun – the
defendant filed this motion for summary judgment. See generally Def.’s Mot. for Summ. J. The
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plaintiff filed an opposition to the defendant’s motion, see generally Pl.’s Opp’n, along with a
motion for discovery under Federal Rule of Civil Procedure 56(f), see generally Pl.’s Discovery
Mot., and a motion to strike all but two of the exhibits filed in support of the defendant’s
summary judgment motion, see generally Pl.’s Mot. to Strike. As the aforementioned motions
are now ripe for adjudication, the court turns to the applicable legal standards and the parties’
arguments.
III. ANALYSIS
A. Legal Standard for a Motion for Summary Judgment
Summary judgment is appropriate when “the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540
(D.C. Cir. 1995). To determine which facts are “material,” a court must look to the substantive
law on which each claim rests. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
“genuine issue” is one whose resolution could establish an element of a claim or defense and,
therefore, affect the outcome of the action. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 248.
In ruling on a motion for summary judgment, the court must draw all justifiable
inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true.
Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than “the mere
existence of a scintilla of evidence” in support of its position. Id. at 252. To prevail on a motion
for summary judgment, the moving party must show that the nonmoving party “fail[ed] to make
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a showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. By pointing to
the absence of evidence proffered by the nonmoving party, a moving party may succeed on
summary judgment. Id.The nonmoving party may defeat summary judgment through factual representations
made in a sworn affidavit if he “support[s] his allegations . . . with facts in the record,” Greene v.
Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999) (quoting Harding v. Gray, 9 F.3d 150, 154 (D.C.
Cir. 1993)), or provides “direct testimonial evidence,” Arrington v. United States, 473 F.3d 329,
338 (D.C. Cir. 2006). Indeed, for the court to accept anything less “would defeat the central
purpose of the summary judgment device, which is to weed out those cases insufficiently
meritorious to warrant the expense of a jury trial.” Greene, 164 F.3d at 675.
Finally, the D.C. Circuit has directed that because it is difficult for a plaintiff to establish
proof of discrimination, the court should view summary-judgment motions in such cases with
special caution. See Aka v. Washington Hosp. Ctr., 116 F.3d 876, 879-80 (D.C. Cir. 1997),
overturned on other grounds, 156 F.3d 1284 (D.C. Cir. 1998) (en banc); see also Johnson v.
Digital Equip. Corp., 836 F. Supp. 14, 18 (D.D.C. 1993).
B. Legal Standard for Discovery Under Rule 56(f)
Under Rule 56(f), a court “may deny a motion for summary judgment or order a
continuance to permit discovery if the party opposing the motion adequately explains why, at
that timepoint, it cannot present by affidavit facts needed to defeat the motion.” Strang v. U.S.
Arms Control & Disarmament Agency, 864 F.2d 859, 861 (D.C. Cir. 1989); Londrigan v. Fed.
Bureau of Investigation, 670 F.2d 1164, (D.C. Cir. 1981). “[T]he purpose of Rule 56(f) is to
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prevent ‘railroading’ the non-moving party through a premature motion for summary judgment
before the non-moving party has had the opportunity to make full discovery.” Dickens v. Whole
Foods Market Group, Inc., 2003 WL 21486821, at *2 n.5 (D.D.C. Mar. 18, 2003) (citing Celotex
Corp. v. Catrett, 477 U.S. 317, 326 (1986)). Whether the circumstances warrant a continuance
to permit discovery is a decision that falls within the discretion of the district court. Stella v.
Mineta, 284 F.3d 135, 147 (D.C. Cir. 2002)
A non-moving party seeking the protection of Rule 56(f) “must state by affidavit the
reasons why he is unable to present the necessary opposing material.” Cloverleaf Standardbred
Owners Ass’n, Inc. v. Nat’l Bank of Wash., 699 F.2d 1274, 1278 n.6 (D.C. Cir. 1983); see also
Hotel & Rest. Employees Union, Local 25 v. Attorney Gen., 804 F.2d 1256, 1269 (D.C. Cir.
1986) (noting that this affidavit requirement helps “prevent fishing expeditions”), vacated on
other grounds, 808 F.2d 847 (D.C. Cir. 1987). The non-moving party bears the burden of
identifying the facts to be discovered that would create a triable issue and the reasons why the
party cannot produce those facts in opposition to the motion. Byrd v. Envtl. Prot. Agency, 174
F.3d 239, 248 n.8 (D.C. Cir. 1999). The non-moving party must show a reasonable basis to
suggest that discovery would reveal triable issues of fact. Carpenter v. Fed. Nat’l Mortgage
Ass’n, 174 F.3d 231, 237 (D.C. Cir. 1999). “It is well settled that conclusory allegations
unsupported by factual data will not create a triable issue of fact.” Byrd, 174 F.3d at 248 n.8
(internal citations omitted); see also Exxon Corp. v. Crosby-Miss. Res., Ltd., 40 F.3d 1474, 1488
(5th Cir. 1995) (holding that Rule 56(f) may not defeat summary judgment “where the result of a
continuance to obtain further information would be wholly speculative”).
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C. The Court Denies Without Prejudice the Defendant’s Motion for Summary Judgment
and Grants the Plaintiff’s Motion for Summary Judgment
The defendant asserts that it is entitled to summary judgment because it had legitimate,
nondiscriminatory reasons for choosing not to hire the plaintiff for the Supervisory Highway
Safety Specialist position and engaging in the allegedly retaliatory conduct. Def.’s Mot. for
Summ. J. at 11-21. The defendant contends that the undisputed facts demonstrate that the
plaintiff “cannot establish that discrimination or retaliation was a motivating factor, much less
that it was the sole motivating factor in the challenged decisions at issue here.” Id. at 11.
The plaintiff responds that he is unable to “respond fully to Defendant’s motion because
the facts at issue are largely in the possession of the Defendant.” Pl.’s Discovery Mot. at 1.
More specifically, the plaintiff asserts that before responding to the defendant’s motion with
respect to his failure to hire claim, he would like to depose the three members of the panel that
made the decision not to hire him and obtain the panel members’ interview notes and ratings. Id.
at 2-3. As for the plaintiff’s claim of retaliation, the plaintiff seeks written discovery concerning
the changes made to the plaintiff’s job responsibilities and his lowered performance review. Id.
at 3. Finally, the plaintiff seeks statistical information and other discovery concerning his
allegation of agency-wide discrimination at the FMCSA. Id. at 3-5.1 Accordingly, the plaintiff
asks that the court either deny the defendant’s summary judgment motion or hold the motion in
abeyance until discovery has closed. Id. at 6.
1
As required by Rule 56(f), the plaintiff has attached an affidavit articulating the reasons why he is
unable to obtain this material prior to discovery. See Cloverleaf Standardbred Owners Ass’n, Inc.
v. Nat’l Bank of Wash., 699 F.2d 1274, 1278 n.6 (D.C. Cir. 1983).
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In response, the defendant reiterates that the plaintiff has failed to demonstrate that
discovery would yield any material information concerning the plaintiff’s claims. Def.’s Opp’n
to Pl.’s Discovery Mot. at 6-10; Def.’s Reply in Support of Def.’s Mot. for Summ. J. at 5-9. The
defendant adds that “this case . . . had extensive discovery at the administrative level.” Id. at 5.
As the Supreme Court and this Circuit have repeatedly held, summary judgment is
ordinarily appropriate only after the plaintiff has been given an adequate opportunity to conduct
discovery. See, e.g., Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Americable Int’l,
Inc. v. Dep’t of Navy, 129 F.3d 1271, 1274 (D.C. Cir. 1997). “This is so even if a plaintiff has
had an opportunity to collect evidence through the EEO administrative process.” Richardson v.
Gutierrez, 477 F. Supp. 2d 22, 30 (D.D.C. 2007) (citing Wiggins v. Powell, 2005 WL 555417, at
*24 (D.D.C. Mar. 27, 2005)). In this case, the plaintiff states that he needs discovery to rebut the
asserted legitimate, nondiscriminatory reasons that the defendant proffers for its allegedly
discriminatory conduct. See generally Pl.’s Discovery Mot. The court agrees that the plaintiff is
entitled to conduct discovery before being required to oppose the defendant’s motion for
summary judgment.2 See Berkeley v. Home Ins. Co., 68 F.3d 1409, 1414 (D.C. Cir. 1995)
(noting favorably that another Circuit has opined that “Rule 56(f) motions should be granted
‘almost as a matter of course unless the non-moving party has not diligently pursued discovery
of the evidence’” (quoting Wichita Falls Office Assocs. v. Banc One Corp., 978 F.2d 915, 919
n.4 (5th Cir. 1992)); Farris v. Rice, 2007 WL 1697083, at *4 (D.D.C. June 12, 2007) (denying
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The court does not hold that the plaintiff will be entitled to all of the discovery that he seeks, only
that the plaintiff is entitled to seek discovery to which he is entitled pursuant to the Federal Rules
of Civil Procedure before being required to respond to the defendant’s motion for summary
judgment.
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the defendant’s motion for summary judgment because, although many of the plaintiff’s claims
were “borne from speculation and [were], therefore, an inappropriate consideration for the court
in assessing whether the plaintiff [had] demonstrated a need for discovery . . . the plaintiff also
point[ed] to evidence which loosely suggest[ed] discrimination and which, for the time being,
provide[d] a sufficient modicum for an inference of discrimination”); Chappell-Johnson v.
Powell, 440 F.3d 484, 488-90 (D.C. Cir. 2006) (holding that the plaintiff was entitled to
discovery pursuant to Rule 56(f)); accord Perry v. Clinton, 674 F. Supp. 2d 110, 120 (D.D.C.
2009); Scott v. Office of Alexander, 522 F. Supp. 2d 262, 273 (D.D.C. 2007); Williams v. Fed.
Nat’l Mortgage Ass’n, 2006 WL 1774252, at * 12 (D.D.C. June 26, 2006).
IV. CONCLUSION
For the foregoing reasons, the court denies without prejudice the defendant’s motion for
summary judgment and grants the plaintiff’s motion for discovery.3 An Order consistent with
this Memorandum Opinion is separately and contemporaneously issued this 9th day of August,
2010.
RICARDO M. URBINA
United States District Judge
3
As a result, the court denies as moot the plaintiff’s motion to strike the defendant’s exhibits.
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