The opinion of the court was delivered by: SULLIVAN
MEMORANDUM OPINION AND ORDER
Carleta Rowland commenced this discrimination action against the Department of Education and sets forth three claims in her complaint: 1) race discrimination under Title VII, 42 U.S.C. § 2000e et seq. ; 2) a violation of the Civil Rights Act of 1866, 42 U.S.C. § 1981; and 3) a violation of the Thirteenth Amendment of the U.S. Constitution. Plaintiff properly exhausted her administrative remedies
and timely filed this suit. Defendant has moved to dismiss or in the alternative, seeks summary judgment on all three claims. Plaintiff did not oppose the defendant's motion to dismiss on the § 1981 claim nor the Thirteenth Amendment claim. Thus, the only claim before this Court is the plaintiff's race discrimination claim under Title VII.
Upon consideration of defendant's motion to dismiss or in the alternative, for summary judgment, the response and reply thereto, and the arguments of counsel at the motions hearing on January 27, 1998, the defendant's motion for summary judgment is hereby GRANTED.
Plaintiff is a black female employed as secretary-typist by the Department of Education ("DOE"). On July 27, 1994, plaintiff injured herself when she tripped over a packing box. She missed 45 days of work as a result of her injuries.
Plaintiff applied for worker's compensation by filing a claim with the Office of Worker's Compensation Program ("OWCP"). Ms. Diane Schmitz, a white female and the director of the Health and Environmental Safety Staff, was responsible for carrying out DOE's federal worker's compensation program, including the processing of OWCP claims. Plaintiff's claim arises out of Ms. Schmitz's handling of her claim for worker's compensation.
In August 1994, Ms. Schmitz telephoned the office of plaintiff's personal physician, Dr. Cynthia Morgan, to discuss the accommodations and return-to-work initiatives available for plaintiff. Ms. Schmitz left a message for Dr. Morgan but never spoke to her. Someone from Dr. Morgan's office returned Ms. Schmitz's call, explaining that plaintiff had called the doctor's office to say that she did not consent to communication between her doctor and Ms. Schmitz.
Ms. Schmitz attempted to contact Dr. Morgan on two more occasions, but was informed that no one could speak with her because plaintiff had not given her consent. Ms. Schmitz never discussed plaintiff's health status with anyone from Dr. Morgan's office. Ms. Schmitz never called Dr. Morgan or her office again.
The Court will treat defendant's motion as one for summary judgment since defendant submitted documents outside of the pleadings in support of its motion. See Fed. R. Civ. P. 12(b). The Court may grant a motion for summary judgment only where is no "genuine issue as to any material fact and viewing the evidence in the light most favorable to the nonmoving party, the movant is entitled to prevail as a matter of law." Fed. R. Civ. P. 56(c); Diamond v. Atwood, 310 U.S. App. D.C. 113, 43 F.3d 1538, 1540 (D.C. Cir. 1995). The nonmoving party, however, cannot simply rest upon the allegations stated in its pleadings but must come forward with the specific facts that demonstrate that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Fed. R. Civ. P. 56(e).
Pursuant to Local Rule 108(h), defendant has submitted a list of facts which it contends are not in dispute. See Def.'s Statement of Material Facts as to Which There Is No Genuine Issue. Purporting to controvert defendant's undisputed facts, plaintiff filed an "Opposition to Statement of Material Facts". This "opposition" fails to "provide a concise statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue." See Local Rule 108(h). Rather, the "opposition" simply asserts conclusory allegations with no supporting facts whatsoever. Furthermore, this "opposition" does not contain a single reference to the record as is also required by Local Rule 108(h).
Likewise, the plaintiff has filed her own affidavit
with the mere conclusory allegation that non-white employees were treated differently than similarly situated white employees. See Rowland Aff. P 6. She provides no facts whatsoever to support this allegation. This is not enough to survive a motion for summary judgment. See Lujan v. National Wildlife Federation, 497 U.S. 871, 888-89, 111 L. Ed. 2d 695, 110 S. Ct. 3177 (1990) ("The object of [Rule 56] is not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit."); Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993)("Mere unsubstantiated allegation . . . creates no 'genuine issue of fact' and will not withstand summary judgment."); Benn v. Unisys Corp., 176 F.R.D. 2, 1997 WL 677437 (D.D.C. 1997).
Thus, since plaintiff has failed to bring forth any specific facts to support her race discrimination claim, the Court concludes that there are no genuine issues of material fact which would preclude summary judgment.
The Court now turns to whether defendant is entitled to judgment as a matter of law. Defendant urges that plaintiff has failed to state a prima facie case of race discrimination because the defendant ...