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March 5, 2001


The opinion of the court was delivered by: Huvelle, District Judge.


Before the Court is defendant's Motion to Dismiss, or in the Alternative, for Summary Judgment, plaintiff's Opposition, and defendant's Reply. Having considered the pleadings and the entire record herein, the Court grants defendant's motion for summary judgment.


Plaintiff John Mack is employed by Pension Benefit Guaranty Corporation ("PBGC") as a GS-15 Supervisory Financial Analyst in the Corporate Finance and Negotiations Department ("CFND"). Plaintiff is an insulin dependant diabetic and suffers from end stage renal failure. Plaintiff underwent a combined kidney and pancreas transplant surgery in April 1997, and he then returned to work full time in July 1997. Plaintiff was responsible for the 1997 Financial Statement Closing Process at PBGC. This process involved compiling required forms from financial analysts at CFND and forwarding them to another department by a certain deadline. The forms were not forwarded on time, and the Controller from the Financial Operations Department, Wayne McKinnon, who is considered to be a "customer" of CFND, sent an e-mail to plaintiff's supervisor, Andrea Schneider, asking that she speak with plaintiff about the missed deadlines.

In November 1997, plaintiff met with his immediate supervisor, Robert Klein. In that meeting, Klein informed plaintiff that he would be receiving an "unsatisfactory" performance rating for Fiscal Year 1997. On December 2, 1997, plaintiff met with Klein and plaintiff's second line supervisor, Schneider. In this meeting Klein and Schneider suggested that plaintiff sign a 120-day extension letter in lieu of immediate receipt of his performance evaluation. Klein and Schneider told plaintiff that if he signed this letter, he would not receive an "unsatisfactory" performance appraisal at that time but would be evaluated for an additional 120 days and then receive a performance appraisal that included an evaluation of his performance during the extension period. Plaintiff declined to sign the extension letter and instead requested his performance appraisal.

On December 22, 1997, plaintiff received his evaluation which contained an "unsatisfactory" performance appraisal in the area of "Communications Skills and Customer Service." On February 2, 1998, plaintiff contacted an Equal Employment Opportunity ("EEO") counselor regarding his "unsatisfactory" performance appraisal. On August 14, 1998, John Seal, PBGC's Chief Management Officer and Director of PBGC's EEO Program, rescinded plaintiff's "unsatisfactory" rating and granted him a rating of "fully effective." Plaintiff filed a formal complaint with PBGC's EEO office on August 17, 1998. On July 19, 2000, plaintiff filed this one-count complaint alleging that defendant discriminated against him on the basis of a perceived physical handicap "by engaging in a course of conduct which included wrongfully issuing [p]laintiff an unsatisfactory rating because of his perceived physical handicap. . . ." (Cmplt. ¶ 61.)


I. Legal Standard

Summary judgment is appropriate only if "there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ. Proc. 56(c). The mere existence of some factual dispute will not preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "Only disputes over the facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. at 248, 106 S.Ct. 2505. In considering a motion for summary judgment, the "evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255, 106 S.Ct. 2505.

The non-moving party's opposition, however, must consist of more than mere allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "While summary judgment must be approached with special caution in discrimination cases, . . . a plaintiff is not relieved of [his] obligation to support [his] allegations by affidavits or other competent evidence." Calhoun v. Johnson, 1998 WL 164780 at *3 (D.D.C. March 31, 1998), aff'd, 1999 WL 825425 (D.C.Cir. Sept.27, 1999) (citation omitted). In addition, LCvR 7.1(h) provides that an opposition to a motion for summary judgment "shall be accompanied by a separate concise statement of genuine issues setting forth all materials facts as to which it is contended there exists a genuine issue necessary to be litigated, which shall include reference to the part of the record relied on to support the statement."

Plaintiff's Statement of Material Facts fails each and every one of these requirements. Instead, plaintiff presents his complaint as his Statement of Material Facts, executes an affidavit that states that the Statement "is true and correct of my own personal knowledge" and cites nothing but paragraphs of his complaint to support each paragraph of his Statement of Material Facts. Throughout the Statement of Material Facts, plaintiff repeats statements, without any citation to the record, as to which he could not have personal knowledge, since he was not present during the conversation. These statements constitute hearsay and cannot be considered. See, e.g., Pl.St. ¶¶ 19, 23, 26, 31, 33, 34 and 36.*fn1 Moreover, contrary to Fed. R.Civ.P. 56(e), plaintiff fails to attach some of the documents that he makes reference to in his affidavit. See, e.g., Pl.St. ¶ 47. Also, plaintiff makes no attempt to provide any references to the record to support his many factual assertions, thereby contravening both Fed.R.Civ.P. 56(e) and LCvR 7.1(h) and ignoring the clear dictate of this Circuit's opinion in Twist v. Meese, 854 F.2d 1421 (D.C.Cir. 1988), wherein the Court cautioned that the burden is on the parties, not on the court, to "identify the pertinent parts of the record, to isolate the facts that are deemed to be material, and to distinguish those facts which are disputed from those that are undisputed." Id. at 1425. Finally, plaintiff's Statement is riddled with self-serving, conclusory statements as to his supervisors' motivations and argumentative characterizations of their actions. See, e.g., Pl.St. ¶¶ 11, 19, 20, 21, 25, 29, 35 and 44.

Given these glaring deficiencies and plaintiff's blatant failure to comply with the rules, plaintiff's Statement of Material Facts cannot serve to refute any of the specific factual assertions that defendant has proffered. See Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 151 (D.C.Cir. 1996). Accordingly, defendant's Statement of Facts will be treated as conceded, as permitted by LCvR 7.1(h) ("[T]he 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.").

II. Exhaustion of Administrative Remedies

Defendants move for dismissal on the grounds that plaintiff failed to exhaust his administrative remedies because his formal complaint, filed with the Agency on August 17, 1998, made reference to discrimination based on an actual, not a perceived, disability. As explained more fully below, the Court does not find this ...

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