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October 23, 2001


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


Plaintiff Tony Morgan, a black male, was employed by the Federal Loan Home Mortgage Corporation ("Freddie Mac") from January 1995 to March 1996. In anticipation of and after his termination on March 31, 1996, plaintiff applied for a number of positions with Freddie Mac but was not hired. On June 3, 1998, plaintiff filed a complaint, alleging discriminatory and retaliatory refusals to hire in violation of Title VII of the Civil Rights Act of 1964, codified as amended at 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981, and the District of Columbia Human Rights Act, D.C.Code. § 2-1401.01 et seq. ("DCHRA"). Defendants have moved for summary judgment on the grounds that, inter alia, the DCHRA claims are time-barred; plaintiff released any claims arising prior to April 7, 1996; and plaintiff has failed to present sufficient facts to establish a prima facie case of discrimination or retaliation. As explained more fully below, this Court concludes that defendants' motion should be granted.


Plaintiff was employed as Director, Corporate Relations-Executive by Freddie Mac at its McLean, Virginia headquarters from January 17, 1995 to March 31, 1996. Freddie Mac terminated his employment on March 31, 1996, as a result of a reduction-in-force. In exchange for six additional months of severance pay and outplacement assistance, plaintiff executed a "Release of All Claims," effective April 7, 1996 (the "Release"). Prior to and after executing the Release, plaintiff expressed interest in and applied for a number of positions at Freddie Mac, but was unsuccessful in his attempts to obtain re-employment.

Based on these refusals to hire, on December 11, 1996, plaintiff cross-filed discrimination complaints with the Fairfax County Human Rights Commission and the Equal Employment Opportunity Commission ("EEOC"). Plaintiffs EEOC complaint alleged racial discrimination in his non-selection for a variety of positions. On January 10, 1997, plaintiff filed a complaint with the D.C. Department of Human Rights, alleging discrimination on the basis of his Democratic Party affiliation in his non-selection for the positions of Director, Government Relations and Director, Industry Relations. After filing these complaints, plaintiff applied for a number of additional positions at Freddie Mac, but was not offered employment.

On June 3, 1998, plaintiff brought a class action lawsuit alleging, inter alia, harassment based on race and discriminatory and retaliatory refusal to hire under Title VII, Section 1981, and the DCHRA. The case was originally assigned to the Honorable Thomas Penfield Jackson. After months of discovery regarding the class claims, a statement was filed on February 1, 1999, indicating that "plaintiffs counsel have determined not to proceed at this time with moving to certify a class under Rule 23 . . . ." Thereafter, the case was reassigned to the undersigned. On November 9, 2000, this Court granted defendants' motion to dismiss the counts against defendants Leland Brendsel and John Gibbons. Following many months of protracted discovery disputes, which were ably managed by Magistrate Judge John Facciola, plaintiffs counsel moved to withdraw based on irreconcilable differences with plaintiff. This motion was ultimately granted on January 25, 2001. This withdrawal necessitated further delays in discovery so as to permit plaintiff to find new counsel. With the appearance of new counsel, discovery was finally completed and the case is now ripe for summary judgment consideration.

Despite this tortured history, the issues have now been narrowed considerably. As noted, there are no class claims. There is no issue as to the validity (as opposed to the interpretation) of the Release signed by the plaintiff, and thus, plaintiffs claims as to discrimination and harassment during his tenure at Freddie Mac are no longer at issue. Two of the three individual defendants have been dismissed, and plaintiff has conceded that he is no longer pursuing any claims regarding his nonselection for seven out of the fifteen positions that had been included in his complaint.*fn1

Left for consideration are claims relating to eight positions, four of which plaintiff applied for but was rejected prior to signing a Release. The only remaining defendants are Freddie Mac and its Vice-President of Government and Industry Relations, Mitchell Delk. The legal claims include discriminatory refusal to hire on the basis of race and political affiliation and retaliation in violation of Title VII (Count I), Section 1981 (Count II) and the DCHRA (Count III).

Defendants have moved for summary judgment on all remaining claims on the grounds that: (1) plaintiffs DCHRA claims are time-barred; (2) the Release bars those claims concerning non-selections occurring prior to April 7, 1996; and (3) plaintiff has failed to establish a prima facie case of discrimination or retaliation on the grounds that the positions at issue were either not available, were never filled, or plaintiff lacked the necessary qualifications for the position.


I. Summary Judgment Standard

Under Fed.R.Civ.P. 56, a motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). 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; see also Washington Post Co. v. United States Dep't of Health and Human Servs., 865 F.2d 320, 325 (D.C.Cir. 1989).

The nonmovant's opposition, however, must consist of more than mere unsupported 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). The nonmovant must provide evidence that would permit a reasonable jury to find in his favor. Laningham v. United States Navy, 813 F.2d 1236, 1241 (D.C.Cir. 1987). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted). "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 showing that there is a genuine issue for trial." Calhonn 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, Local Civil Rule 7.1(h) provides that "[a]n 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 part of the record relied on to support the statement."

Despite these principles of law and the requirements of the local rules, "Plaintiffs Statement of Genuine Issues in Dispute" (hereinafter "Plaintiffs Statement") is woefully deficient in many respects. Plaintiffs Statement fails to controvert most of the facts set forth by defendants, including material facts relating to the nonavailability of positions for which plaintiff applied and was refused employment.*fn2 Under Rule 7.1(h), "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." Even where facts are disputed, a careful review of the record citations reveals that there is a lack of support for plaintiffs assertions.*fn3 Plaintiffs Statement is also deficient insofar as reference is made to alleged facts for which a deposition is cited without any specific page reference.*fn4 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." Twist v. Meese, 854 F.2d 1421, 1425 (D.C.Cir. 1988), cert. denied, 490 U.S. 1066. 109 S.Ct. 2066, 104 L.Ed.2d 631 (1989); see also Jackson v. Finnegan, Henderson, Farabow, Garrett, & Dunner, 101 F.3d 145, 153 (D.C.Cir. 1996) (noting that the burden is on counsel, not the court, to "winnow the wheat from the chaff"). Furthermore, in support of his Statement, plaintiff often relies on his own self-serving Declaration, much of which is peppered with conclusory statements regarding his superior qualifications.*fn5

As explained more fully below, when the uncontroverted evidence is considered, it becomes readily apparent that plaintiffs DCHRA claims are time barred, he has released any possible claim as to four of the positions at issue, since the refusal to hire occurred prior to the effective date of the Release, and, as to the remaining positions, he cannot establish a prima facie case because there was no ...

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