Fuller v. Fried, Frank, Harris, Shriver & Jacobson LLP ( 2012 )

SUMMARY MEMORANDUM AND OPINION; NOT INTENDED FOR PUBLICATION.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
IVORY FULLER,
Plaintiff,
v. Civil Action No. 09-cv-1137 (RLW)
FRIED FRANK HARRIS SHRIVER &
JACOBSON LLP,
Defendant.
MEMORANDUM OPINION1
This matter is before the Court on Defendant’s motion for summary judgment. Dkt.# 43.
For the reasons set forth below, the motion will be GRANTED.
Plaintiff’s complaint alleges thirteen counts:
 Count I: Failure to Allow Leave as Required by D.C. Family and Medical Leave Act
(FMLA)
 Count II: Unlawful Interference with the Exercise of Rights under the D.C. Family and
Medical Leave Act
 Count III: Failure to Accommodate Disability in Violation of the D.C. Human Rights
Act (DCHRA)
 Count IV: Termination of Account of Disability in Violation of the D.C. Human Rights
Act
 Count V: Race Discrimination in Violation of the D.C. Human Rights Act
 Count VI: Unlawful Discrimination by Failing to Accommodate Family Responsibilities
in Violation of D.C. Code § 2-1402.11(a)(1)
1
This is a summary opinion intended for the parties and those persons familiar with the
facts and arguments set forth in the pleadings; not intended for publication in the official
reporters.
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SUMMARY MEMORANDUM AND OPINION; NOT INTENDED FOR PUBLICATION.
 Count VII: Unlawful Discrimination on Account of Family Responsibilities in Violation
of D.C. Code § 2-1402.11(a)(1)
 Count VIII: Retaliation for Opposing Discrimination in Violation of the D.C. Human
Rights Act
 Count IX: Failure to Pay Hourly Wages in Violation of the D.C. Wage Payment Statute
 Count X: Failure to Pay Overtime Wages in Violation of the D.C. Wage Payment Statute
 Count XI: Retaliatory Discharge in Violation of the D.C. Wage Law
 Count XII: Failure to Pay Overtime Wages in Violation of the Fair Labor Standards Act
 Count XIII: Retaliatory Discharge in Violation of the Fair Labor Standards Act
Complaint, Dkt.# 1, Exh. 1.
In this case, the Defendant moved for summary judgment, and as required by our Local
Rules, the motion was accompanied by a Statement of Undisputed Facts. Dkt# 43-1 at 2-8. The
Local Rules set forth the requirements of the movant’s statement, as well as the requirements for
a statement in response by the non-movant:
Each motion for summary judgment shall be accompanied by a statement of
material facts as to which the moving party contends there is no genuine issue,
which shall include references to the parts of the record relied on to support the
statement. An opposition to such a motion shall be accompanied by a separate
concise statement of genuine issues setting forth all material facts as to which it is
contended there exists a genuine issue necessary to be litigated, which shall
include references to the parts of the record relied on to support the statement.
Each such motion and opposition must also contain or be accompanied by a
memorandum of points and authorities and proposed order as required by LCvR
7(a), (b) and (c). In determining a motion for summary judgment, the court may
assume that facts identified by the moving party in its statement of material facts
are admitted, unless such a fact is controverted in the statement of genuine issues
filed in opposition to the motion.
Local Rule 7(h)(1) of the United States District Court for the District of Columbia (emphasis
added).
In compliance with the Local Rules, the Defendant’s Statement of Undisputed Facts
included citations to admissible evidence (including pinpoint cites to specific page or paragraph
numbers) for each assertion of fact. The Plaintiff’s statement, on the other hand, was woefully
insufficient in a number of respects.
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SUMMARY MEMORANDUM AND OPINION; NOT INTENDED FOR PUBLICATION.
The Plaintiff, who was represented by counsel when she filed the lawsuit, but who is now
proceeding pro se2, filed an opposition to the summary judgment motion. Plaintiff’s Opposition
brief included “Responses to Defendants [sic] Statement of Undisputed Facts.” Dkt# 49 at 23-
26. Plaintiff’s Response indicates that she does not dispute certain facts that were asserted in the
Defendant’s Statement. However, the Response disputes several other facts, generally citing
Plaintiff’s deposition transcript as support. Except for one instance, Plaintiff fails to identify
which page of the transcript supports each factual assertion in her Response. Id. Approximately
one month after she filed her Opposition, Plaintiff filed the 249-page transcript of her deposition
with the Court. Dkt# 51. In her Opposition brief, Plaintiff also included a “Statement of
Undisputed Facts,” and some of the assertions in Plaintiff’s Statement are not supported by
citation to any evidence, while most other assertions are supported to citations to the Complaint,
which is not admissible evidence. Dkt# 49 at 6-8. Significantly, the Plaintiff fails to cite to her
deposition as support for any of the assertions in her “Statement of Undisputed Facts.” Id.As our Circuit Court of Appeals has explained, “a district court should not be obliged to
sift through hundreds of pages of depositions, affidavits, and interrogatories in order to make
[its] own analysis and determination of what may, or may not, be a genuine issue of material
fact.” Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 151
(D.C.Cir.1996) (quoting Twist v. Meese, 854 F.2d 1421, 1425 (D.C.Cir.1988), cert. denied sub
nom. Twist v. Thornburgh, 490 U.S. 1066 (1989)). Nonetheless, by filing her 249-page
deposition transcript with the Court and by failing to cite specific pages in the transcript in her
statement of facts, the Plaintiff expects the Court to sift through hundreds of pages and find
2
Plaintiff’s counsel filed a motion to withdraw because Plaintiff failed to maintain contact with
and cooperate with counsel. Dkt.# 28. The prior judge assigned to this matter granted the
motion. See Docket Entry on 3/8/2010.
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SUMMARY MEMORANDUM AND OPINION; NOT INTENDED FOR PUBLICATION.
support for her various factual assertions. The Court has considered the matter, and in an
exercise of its discretion, rules that Plaintiff’s “Responses to Defendants [sic] Statement of
Undisputed Facts” and “Statement of Undisputed Facts” fail to comply with the Local Rules and
will be stricken and therefore not considered. Accordingly, the Court will treat Defendant’s
Statement of Undisputed Facts as conceded.3
The Court believes that this action is appropriate, notwithstanding Plaintiff’s status as a
pro se litigant. Plaintiff has prosecuted her case with a considerable lack of diligence, candor
and good faith. For example, Plaintiff disputes an assertion in Defendant’s Statement of
Undisputed Facts, even though her own deposition was the source of the assertion, and even
though she cites no evidence in support of her disputation. See Dkt.# 49 at 24 (Response to
Defendant’s Statement of Undisputed Fact No. 5). In addition, the Plaintiff asserted in her
Response that there was no personnel manual for the D.C. office during her tenure with Fried
Frank. Id. (Response to Defendant’s Statement of Undisputed Fact No. 2). However, Plaintiff
admitted during her deposition that Fried Frank had an FMLA policy in effect during her tenure
there and that she was aware of the FMLA policy and other employment policies during her
tenure there. Dkt.# 51 (Tr. at 28-32, 72-73, 166).
The Court simply cannot countenance this behavior if it is to maintain control of its
docket, let alone respect for the rules and the proper administration of justice. The record is
replete with instances in which Plaintiff failed to cooperate with discovery, with two separate
motions to compel filed against the Plaintiff, and both were granted, at least in part. Dkt# 13;
Minute Order of 2/25/2010; Dkt.# 30; Minute Order of 5/3/2010. On May 11, 2010, Plaintiff
3
Out of an abundance of caution, and in case this matter is ever reviewed by another court, the
Court nonetheless read the entire transcript of Plaintiff’s deposition. The Court did not find
anything in the deposition that contradicted Defendant’s Statement of Undisputed Facts.
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SUMMARY MEMORANDUM AND OPINION; NOT INTENDED FOR PUBLICATION.
also failed to appear for a previously scheduled post-discovery status hearing, causing the prior
judge assigned to this case to issue an order to show cause. Dkt# 36. The prior judge denied a
motion to dismiss the case based upon all of this history, but in doing so, the judge cautioned
Plaintiff that “[she] has compiled a disturbing history of a personal lack of diligence in
prosecuting her case, both before and after she became a pro se litigant” and that she was
“reaching the limit of the court’s tolerance for further delay by her. . . . “ Dkt.# 41. At
Plaintiff’s deposition, she testified that she had numerous emails that were relevant and
responsive to pending document requests that she had not produced, despite the fact that the case
had been pending for over a year and the discovery cutoff was a few short days after her
deposition. Dkt.#51 (Tr. at 44-50). Indeed, as noted above, Plaintiff’s counsel withdrew from
the representation because of Plaintiff’s failure to cooperate and communicate with counsel.
Dkt# 28. Thus, it is entirely appropriate under these circumstances to strike Plaintiff’s woefully
non-compliant statements in response to Defendant’s motion for summary judgment.
In this case, the undisputed facts show that Plaintiff was admittedly late for work despite
numerous prior formal warnings about her tardiness, and that this legitimate, non-discriminatory
reason was the basis for her termination. Pursuant to the undisputed facts, Plaintiff fails to make
even a prima facie showing of discrimination. Thus, none of the Plaintiff’s discrimination claims
have merit. While Plaintiff alleges that she was terminated in retaliation for requesting leave
pursuant to the FMLA, the undisputed facts show that Plaintiff’s claim is not only time-barred,
but also that Plaintiff failed to request any such leave or that she was eligible for any such leave.
While Plaintiff alleges that she was discriminated against because of a disability, the undisputed
facts show that Plaintiff did not have a disability that fell within the protections of the DCHRA,
and in addition, that Plaintiff’s failure to accommodate claims are time-barred. Plaintiff also
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SUMMARY MEMORANDUM AND OPINION; NOT INTENDED FOR PUBLICATION.
alleges that she was not paid for overtime and that she was retaliated against because she raised
payment issues, but the undisputed facts show that there is insufficient evidence to support any
of the claims related to these allegations. In sum, for the reasons stated in Defendant’s motion,
all of the Plaintiff’s claims fail.
For the foregoing reasons, this Court will grant the defendant’s motion for summary
judgment. Plaintiff’s complaint is hereby dismissed with prejudice. A separate Order
accompanies this Memorandum Opinion.
SO ORDERED.
Date: February 29, 2012
Digitally signed by Judge Robert L.
Wilkins
DN: cn=Judge Robert L. Wilkins, o=U.S.
District Court, ou=Chambers of
Honorable Robert L. Wilkins,
email=RW@dc.uscourt.gov, c=US
Date: 2012.02.29 19:46:39 -05'00'
Robert L. Wilkins
United States District Judge
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