Howard v. Locke , 729 F. Supp. 2d 85 ( 2010 )

729 F.Supp.2d 85 (2010)

Janet HOWARD, Plaintiff,
v.
Gary LOCKE, Secretary, U.S. Department of Commerce, et al., Defendants.

Civil Case No. 09-1601 (RJL).

United States District Court, District of Columbia.

July 27, 2010.

Janet Howard, Spotsylvania, VA, pro se.

Brian P. Hudak, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM ORDER

RICHARD J. LEON, District Judge.

Plaintiff, Janet Howard ("Howard"), acting pro se, brings this action against Gary Locke ("defendant"), Secretary of the Department of Commerce ("Agency"), appearing to allege that her termination from the Agency was motivated by retaliation made unlawful under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. Before the Court is defendant's Motion for Summary Judgment, or in the Alternative, to Dismiss Under Rule 8(a). Upon consideration of the parties' pleadings, relevant law, and the entire record herein, the defendant's Motion for Summary Judgment is GRANTED.

The plaintiffs complaint copies and pastes large swaths of unproven allegations and immaterial assertions concerning her prior EEO and district court complaints, rather than focusing on her current claims and allegations. To the best I can decipher, the only indication plaintiff has given of her cause of action is the following sentence: "Plaintiff allege discriminated and Involuntary removal from federal career service for prior EEO activity and filing a class complaint (civil action no. 05-1968(JDB)." Compl. 1 (referencing a failed class action that Howard is now pursuing on an individual basis in the District Court before Judge Bates). Accordingly, I will construe the Complaint as alleging that Howard was wrongfully terminated, for both discriminatory and retaliatory reasons.

Howard was removed from her position at the Agency for performance-based reasons effective April 25, 2008. See Decision Regarding Proposed Removal, Apr. 21, 2008, Def.'s Mot. for Summ. J. ("Def.'s Mot.") Ex. 3. On May 16, 2008, plaintiff filed a mixed case appeal of the removal decision with the Merit Systems Protection Board ("MSPB"). See MSPB Initial Decision, Nov. 7, 2008, Def.'s Mot. Ex. 5. Ultimately, the MSPB determined that plaintiffs complaint did not merit relief and that the Agency had sufficiently proven plaintiffs unacceptable performance. See id.; MSPB Final Order, May 19, 2009, Def.'s Mot. Ex. 20. After the EEOC Office of Federal Operations ("OFO") denied plaintiffs petition for review, Howard filed this action on August 24, 2009.^[1]See EEOC OFO Decision, July 7, 2009, Def.'s Mot. Ex. 21.

Defendant moves for summary judgment pursuant to Fed.R.Civ.P. 56. Summary judgment shall be granted when the record demonstrates "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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citing same). In deciding whether there is a disputed issue of material fact, the Court must draw all justifiable inferences in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, a party opposing a motion for summary judgment "may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial." Id. at 248, 106 S.Ct. 2505 (quoting Fed.R.Civ.P. 56(e)).

"It is well understood in this Circuit that when a plaintiff files an opposition to a motion ... addressing only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded." Nwachuku v. Jackson, 605 F.Supp.2d 285, 286 n. 1 (D.D.C.2009) (quoting United States v. Real Property Identified as: Parcel XXXXX-XXXR, 287 F.Supp.2d 45, 61 (D.D.C. 2003)). Similarly, Local Rule 7(h) provides that "[i]n 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." LCvR 7(h); see also Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 154 (D.C.Cir.1996) ("[P]ursuant to the remedy afforded by Rule [7(h)], the district court is to deem as admitted the moving party's facts that are uncontroverted by the nonmoving party's Rule [7(h)] statement.").

In this case, after defendant filed his motion for summary judgment, the Court specifically instructed Howard, a pro se plaintiff, on her need to respond to the defendant's statement of undisputed material facts and the arguments set forth in the defendant's opening brief, or else risk the Court treating defendant's motion as conceded. See Order, Howard v. Locke, No. 09-1601 (D.D.C. Dec. 23, 2009) (Dkt. 11) (citing Fox v. Strickland, 837 F.2d 507 (D.C.Cir.1988), and Neal v. Kelly, 963 F.2d 453 (D.C.Cir.1992)). Nevertheless, plaintiffs opposition utterly fails to address both the facts set forth in the defendant's statement of undisputed material facts and the arguments for summary judgment made in defendant's opening brief. Rather, plaintiffs opposition continues the same misguided approach she adopted in drafting her complaint, i.e., copying and pasting allegations and assertions irrelevant to her current claim, which concerns her termination from the Agency. Other than one unspecific passage, Howard's opposition consists solely of a rehash of her previous filings and is therefore not a response to defendant's motion. See Pl.'s Opp'n 6-7 (briefly describing the administrative process and stating a general complaint of unfair treatment). As such, plaintiff does not contest that she failed to participate in the administrative process, including repeatedly failing to respond to the Agency's discovery requests and deposition notices to the point that the administrative law judge ("ALJ") sanctioned Howard. See Def.'s Mot. 7 (citing MSPB Order, Sept. 10, 2008, Def.'s Mot. Ex. 11). Nor does Howard contest that the ALJ, in all practical effect, struck the allegations of discrimination and retaliation because of Howard's failure to cooperate in the administrative process. Id. (citing same). Plaintiff also fails to contest or otherwise address the legal authority cited by defendant that renders her failure to cooperate an insurmountable bar to this action. See id. 11-13. As a result, Howard has effectively conceded the grounds for defendant's motion for summary judgment.

Therefore, in light of the plaintiffs concession and the Court's review of the motions, the relevant law cited therein, and the record, it is hereby

ORDERED that the defendant's Motion for Summary Judgment [# 9] is GRANTED, and it is further

ORDERED that the above-captioned case be DISMISSED with prejudice.

SO ORDERED.

NOTES

[1] The Court notes that this case is related to Howard v. Evans, No. 04-756 (D.D.C. filed May 11, 2004). Howard was represented by counsel in that case, in which she alleged violations of the Rehabilitation Act of 1973 and Title VII on the theory that the Agency failed to provide reasonable accommodations for her disabilities and also did so in retaliation. On January 13, 2010, this Court granted the defendant's Renewed Motion for Summary Judgment, finding all of plaintiff's claims to be insufficient as a matter of law. Howard v. Evans, No. 04-756, slip op. at 7 (D.D.C. Jan. 13, 2010).