Milligan v. Clinton , 266 F.R.D. 17 ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
KIMBERLY A. Q. MILLIGAN, )
)
Plaintiff, )
)
v. ) Civil Action No. 09-0009 (RWR)
)
HILLARY RODHAM CLINTON, )
)
Defendant. )
______________________________)
MEMORANDUM OPINION AND ORDER
Plaintiff Kimberly A. Q. Milligan brought this action
against the Secretary of State1 alleging discrimination on the
basis of race and color and a hostile work environment in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e, et seq. The Secretary has moved to dismiss under
Federal Rule of Civil Procedure 12(b)(6) or, in the alternative,
for summary judgment under Rule 56, contending that Milligan has
failed to exhaust her administrative remedies and that Milligan
has failed to establish a prima facie case of discrimination and
hostile work environment. Milligan opposes, arguing for
discovery under Rule 56(f) and asserting that the Secretary’s
motion should be denied because the exhibits attached to the
motion are not admissible in evidence. Milligan has filed
1
Hillary Rodham Clinton is substituted as the defendant
under Fed. R. Civ. P. 25(d).
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separately a Rule 56(f) motion and a motion to strike the
Secretary’s exhibits. While Milligan has demonstrated her
entitlement to discovery to respond to the defendant’s
dispositive motion regarding the hostile work environment claim,
she has failed to carry her burden of showing how the discovery
she seeks to obtain would create a genuine issue of material fact
as to her remaining discrimination claims. Therefore, Milligan’s
Rule 56(f) motion will be granted in part. Milligan will be
directed to supplement her Rule 56(f) motion demonstrating how
the discovery she seeks would create a genuine factual dispute as
to her remaining discrimination claims. The Secretary’s motion
for summary judgment and Milligan’s motion to strike will be
denied without prejudice to reinstating the motions should
Milligan fail to demonstrate an entitlement to the discovery she
seeks on her remaining discrimination claims.
BACKGROUND
Milligan, an employee in the Executive Office of the Bureau
of Consular Affairs (“Agency”), filed suit under Title VII
alleging employment discrimination on the basis of race and
color, and a hostile work environment. The defendant has moved
to dismiss or, in the alternative, for summary judgment arguing
both that Milligan has failed to exhaust her administrative
remedies and that Milligan cannot establish a prima facie case of
discrimination. (Def.’s Mem. of P. & A. in Supp. of Mot. to
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Dismiss or, in the Alternative, for Summ. J. (“Def.’s Mem.”) at
4-17.) Milligan counters that under Rule 56(f), she should be
given the opportunity to conduct discovery because she cannot
fully oppose the Secretary’s motion without the benefit of
discovery. (Pl.’s Response and Opp’n at 6.) She also argues
that most of the exhibits submitted in support of the Secretary’s
motion are inadmissible under Rule 56(e) because they have not
been properly authenticated and contain inadmissible hearsay.
(Id. at 5-6.) Meanwhile, Milligan has filed a motion to strike
the Secretary’s exhibits and a motion for Rule 56(f) discovery,
based on the same reasons articulated in her opposition. The
defendant opposes both motions.
DISCUSSION
A party may move to dismiss a complaint for failure to state
a claim upon which relief can be granted. See Fed. R. Civ. P.
12(b)(6). In reviewing a Rule 12(b)(6) motion, a court “must
treat the complaint’s factual allegations as true . . . and must
grant plaintiff the benefit of all inferences that can be derived
from the facts alleged.” Sparrow v. United Air Lines, Inc., 216
F.3d 1111, 1113 (D.C. Cir. 2000) (internal citation and quotation
marks omitted). However, “when, on a Rule 12(b)(6) motion,
‘matters outside the pleadings are presented to and not excluded
by the court, the motion must be treated as one for summary
judgment under Rule 56.’” 1443 Chapin St., LP v. PNC Bank, Nat’l
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Ass’n, 258 F.R.D. 186, 187 (D.D.C. 2009) (quoting Fed. R. Civ. P.
12(d)). Because the Secretary has submitted and relies upon
multiple exhibits in support of her motion, the motion will be
treated as one for summary judgment.
“A party may respond to a motion for summary judgment by
moving for additional discovery.” Graham v. Mukasey, 608 F.
Supp. 2d 50, 52 (D.D.C. 2009). Rule 56(f) of the Federal Rules
of Civil Procedure provides that “[i]f a party opposing the
motion shows by affidavit that, for specified reasons, it cannot
present facts essential to justify its opposition, the court may
. . . order a continuance to enable affidavits to be obtained,
depositions to be taken, or other discovery to be undertaken[.]”
Fed. R. Civ. P. 56(f). This Rule “recognizes the importance of
discovery in defending a motion for summary judgment[,]” Wiggins
v. State Farm Fire and Cas. Co., 153 F. Supp. 2d 16, 19 (D.D.C.
2001) (citing Dyson v. Winfield, 113 F. Supp. 2d 35, 42 (D.D.C.
2000)), and “is intended to prevent railroading ‘a non-moving
party through a premature motion for summary judgment before the
non-moving party has had the opportunity to make full
discovery.’” Graham, 608 F. Supp. 2d at 53 (quoting Berliner
Corcoran & Rowe LLP v. Orian, 563 F. Supp. 2d 250, 253 (D.D.C.
2008)). “As the D.C. Circuit has consistently cautioned, summary
judgment ordinarily is proper only after the plaintiff has been
given adequate time for discovery.” 1443 Chapin St., LP, 258
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F.R.D. at 187 (internal quotation marks omitted). Under Rule
56(f), however, “[t]he party seeking discovery bears the burden
of identifying the facts to be discovered that would create
genuine issues of material fact and the reasons why the party
cannot acquire those facts without . . . discovery.” Graham, 608
F. Supp. 2d at 52-53. The Rule is not “designed to allow
‘fishing expeditions,’ and plaintiffs must specifically explain
what their proposed discovery would likely reveal and why that
revelation would advance the plaintiffs’ case.” Id. at 54.
To date, Milligan has not yet had the chance to engage in
discovery. (See Pl.’s Mem. of P. & A. in Supp. of Mot. for
Continuance (“Pl.’s Mem.”), Decl. of Pl. Milligan Pursuant to
Rule 56(f) (“Milligan Decl.”) ¶ 5.) She seeks, in part, to
obtain the “testimony of co-workers and others in management as
to . . . the nature, frequency, severity and extent of the
hostile work environment[.]” (Pl.’s Mem. at 2-3, Milligan Decl.
¶ 2.) Milligan has identified by name certain employees from
whom she seeks to elicit statements made by her first line
supervisor, Herbert Casey, and information related to how Casey
treated her. (Pl.’s Mem. at 3, Milligan Decl. ¶ 3.) Milligan
also has demonstrated that she cannot adequately respond to the
defendant’s motion without conducting discovery of these
witnesses who are in the employ of the defendant and has made a
showing, albeit spare, that the testimony could create a genuine
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fact issue as to whether Casey’s behavior was frequent or severe
enough to create a hostile work environment.
Milligan has identified other information that she seeks,
including personnel file documents, documents related to a 2008
Human Resources audit conducted by the State Department,
statistical information, and evidence of other race and color
discrimination complaints filed against the Agency (Pl.’s Mem. at
3-4, Milligan Decl. ¶ 4), but has failed to demonstrate how this
information would create a genuine issue of material fact on her
remaining discrimination claims. Because Milligan has not
purported to concede to the defendant’s dispositive motion on
those claims, but has failed to carry her burden of showing how
the additional discovery she seeks would advance her case, her
Rule 56(f) motion will be granted only in part. Milligan will be
directed to supplement her Rule 56(f) motion, identifying
specifically how the additional information she seeks would
create a genuine factual dispute on her remaining discrimination
claims. The defendant’s motion for summary judgment and
Milligan’s motion to strike will be denied without prejudice to
refiling them should Milligan fail to carry her burden of
demonstrating an entitlement to the discovery she seeks to obtain
on her remaining discrimination claims.
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CONCLUSION AND ORDER
Because Milligan has shown that information she seeks could
create a genuine factual dispute as to her hostile work
environment claim, her Rule 56(f) motion will be granted in part.
However, Milligan must supplement her Rule 56(f) motion, stating
specifically how the additional discovery she seeks would reveal
a genuine issue of material fact as to her remaining
discrimination claims. Further, Milligan’s motion to strike and
the Secretary’s motion to dismiss or, in the alternative, for
summary judgment will be denied without prejudice to refiling
them should Milligan fail to supplement adequately her Rule 56(f)
motion. Accordingly, it is hereby
ORDERED that Milligan’s Rule 56(f) motion [8] be, and hereby
is, GRANTED in part. Rule 56(f) discovery will be permitted
regarding the hostile work environment claim. However, before
the parties are asked to propose an order outlining the scope and
duration of any Rule 56(f) discovery, Milligan shall supplement
by April 1, 2010 her Rule 56(f) motion as explained above. It is
further
ORDERED that Milligan’s motion [9] to strike and the
Secretary’s motion [4] to dismiss or, in the alternative, for
summary judgment be, and hereby are, DENIED without prejudice to
reinstating the motions should Milligan fail to demonstrate an
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entitlement to the discovery she seeks on her remaining
discrimination claims.
SIGNED this 11th day of March, 2010.
/s/
RICHARD W. ROBERTS
United States District Judge