The opinion of the court was delivered by: John M. Facciola, United States Magistrate Judge
Currently ripe and ready for resolution is Defendants Motion for Summary
Judgment ("Defs. Mot."). For the reasons articulated below, defendants'
motion will be granted.
Dwight Rowland ("plaintiff") is suing David Walker, the Comptroller
General of the General Accounting Office ("Walker"), Michele M.
Hamilton, a Human Resources Manager at GAO ("Hamilton"), and Timothy
DiNapoli, a Supervisor at GAO ("DiNapoli"), for employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.A.
§ 2000e et seq.*fn1 Plaintiff claims that he was discriminated
against because of his race and gender, that he endured a hostile work
environment, and that he was retaliated against.
I. Defendants' Motion to Dismiss is not Premature
Defendants first point out that plaintiff never requested information
regarding the performance evaluations of African American Band 1D
evaluators during discovery. Defendants' Reply to Plaintiffs Opposition to
Defendants' Motion for Summarv Judgment ("Defs. Reply") at 3 n. 1.
Defendants then explain that plaintiff narrowed his request for e-mail to
all e-mails created by two persons during a certain period of time and that
defendants sent these e-mails to plaintiffs counsel by a letter dated June
13, 2002. Id. & Exhibit 20 (letter transmitting e-mails).
Plaintiff also seeks to forestall defendants' motion because he wishes to
secure affidavits from James Driggins and from unnamed "coworkers,
supervisors who rated Plaintiff as `fully successful' in his job
performance." Affidavit of William S. Bach, Esquire. Additionally,
plaintiffs counsel indicates a desire to secure affidavits from persons who
rated plaintiff as fully successful before defendants' witnesses in this
case found good cause to terminate him. Memorandum of Points and
Authorities in Support of Plaintiffs Opposition to Defendants' Motion for
Summary Judgment ("Plains. Opp.") at 10.
None of this is reason to postpone resolution of defendants' motion.
First, according to defendants' counsel, plaintiff secured the emails on
June 13, 2002. It is now several months later and plaintiff has never
sought leave to use them to supplement his earlier opposition on any ground
whatsoever. They, therefore, cannot possibly be relevant to any argument
plaintiff wishes to make to defeat defendants' motion.
Second, defendants' assertion that plaintiff never sought the
performance evaluations and progress reports of African American Band 1 D
evaluators in discovery is uncontradicted. Since plaintiff never sought
them in the first place, their absence cannot possibly be grounds under
Fed.R.Civ.P. 56(f) to postpone resolution of a motion for summary
judgment. The deadline to complete discovery in this case has come and
gone. It cannot possibly be the law that a party can forego seeking
information by discovery and, when confronted by a motion for summary
judgment, seek discovery it never sought in the first place to defeat the
motion. Fed.R.Civ.P. 56(f) cannot possibly be construed to justify such a
result and it would be hard to imagine how one could more mock the
meaning of a discovery deadline.
Plaintiffs attempt to forestall resolution of the motion based on what
his counsel wishes to secure fares no better. First, James Driggins was
deposed in this case. Plaintiff concedes as much, but indicates that "at no
time has the Plaintiff deposed him or had the opportunity to obtain an
affidavit from him." Plains. Opp. at 3. But nothing prevented plaintiffs
counsel from eliciting whatever he wished to elicit that would support
plaintiffs case during Driggins' deposition. That plaintiff has not deposed
him is immaterial. I know of no rule of procedure that permits each witness
to be deposed twice, once by a party's opponent and then by the party, with
each side permitted to ask different questions during "plantiffs
deposition" and then during "defendant's deposition." As for plaintiffs
inability to secure an affidavit from Driggins, no reason whatsoever is
given for this inability. If he was available for a deposition, why was he
unavailable to sign an affidavit?
Second, plaintiff wants to secure affidavits from plaintiffs supervisors
who evaluated his performance before he went to work as a Band 1 evaluator
with the General Accounting Office. Again, discovery in this case began on
September 17, 2001, and ended on February 28, 2002. Defendants were granted
until at least May 6, 2002, to file their motion for summary judgment.
Hence, plaintiff had from September 17, 2001, to May 6, 2002, to secure
affidavits from plaintiffs supervisors and did not do so. Moreover, unless
the duties plaintiff had in all of the jobs at issue were identical, the
manner in which one person rated him on one job is irrelevant to how
someone else rated him on another job. Thus, the affidavits plaintiff seeks
A request to postpone resolution of a motion for summary judgment when
the party opposing the motion has failed to avail himself of discovery to
secure the information should be denied. Beattie v. Madison County School
Dist., 254 F.3d 595, 606 (5th Cir. 2001); Doty v. Illinois Cent. R.R.
Co., 162 F.3d 460, 462 (7th Cir. 1998); Alexander v. FBI,
186 F.R.D. 180, 185 (D.D.C. 1999). See 10B CHARLES A.
WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND
PROCEDURE, § 2741 3d 1998). If failing to take discovery is no excuse,
then so is failing to secure affidavits from witnesses one can find on
one's own. Finally, as will become clear, plaintiff cannot establish that
the affidavits he never secured, but wants to get now, would have any
affect whatsoever on my resolution of the issues presented by the
defendants' motion because affidavits from people who rated her in a
certain way have nothing to do with why the government's motion must be
granted. Hence, there is no reason whatsoever to postpone resolution of
defendants' motion. See Chance v. Pac-Tel Teletrac Inc.,
242 F.3d 1151 (9th Cir. 2001).
II. The Case Against Hamilton and DiNapoli Must Be Dismissed
Under Title VII, federal employees claiming discrimination against the
federal government must name "the head of the department, agency, or unit,"
as the defendant in an civil action. 42 U.S.C.A. § 2000e-16(c).
While plaintiff properly named David Walker, Comptroller General of the
National Security and International Affairs Division of the General
Accounting Office, as a defendant, he also named Hamilton and DiNapoli as
defendants. Hamilton was Human Resource Manager of the International
Affairs Division and DiNapoli was a supervisor at GAO. Thus, while Hamilton
and DiNapoli were employed by GAO, they were not department, agency, or