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
It is legitimate to oppose a motion for summary judgment by submitting an
affidavit attesting that one cannot "for reasons stated present by
affidavit facts essential to justify the party's opposition." FED. R. Civ.
P. 56(f). Plaintiff attempts to meet this burden by insisting that he
never received (1) the performance evaluations and progress reports for the
African American Band 1 D evaluators of 1998 and (2) copies of the e-mails
of the persons he named in his Request for Entry upon Land.*fn2
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
unit heads and therefore cannot be sued in this Title VII action. See
Wilkins v. Daley, 49 F. Supp.2d 1 (D.D.C. 1999). Therefore, they will
be dismissed as party defendants.
III. Plaintiffs Burden
To defeat defendants' motion for summary judgment, plaintiff must point
admissible evidence that would permit a reasonable juror to return a
verdict in his favor.*fn4
IV. Plaintiffs Claim of Disparate Treatment Based on Race and Gender Must
Plaintiff claims that he was discriminated against based on disparate
treatment because of his race, African American, Compl. ¶ 4, and his
gender. Compl. ¶ 6.
As to plaintiffs race claim, plaintiff alleges that whites were given
"significantly more on the job training, coaching and mentoring . . . [and]
better assignments with more potential to develop basic skills critical to
success as an evaluator." Compl. ¶ 4. As to plaintiffs claim of
discrimination based on gender, plaintiff fails to make any allegations at
all regarding the treatment of women compared to the treatment he
As noted above in footnote 4, all justifiable inferences are drawn in
favor of the non-moving party. Additionally, the non-moving party must do
more than cast doubt on the facts — he must provide evidence that
would allow a reasonable juror to find in his favor. Plaintiffs claim of
discrimination, whether based on race or gender, fails completely. The
only individual that plaintiff names as a potential comparator is Joanna
Ayers ("Ayers"), whom the court presumes, based on the wording of
plaintiffs opposition to the summary judgment motion, to be a "non-black
female." Plains. Opp. at 7. However, when questioned about the
opportunities that plaintiff claims Ayers was given that plaintiff was
not, plaintiff could not provide any proof beyond his belief that this
had occurred. In fact, in his deposition, plaintiff conceded that he has
no proof that Ayers was given the opportunity to 1) participate in or
lead meetings, Defendants' Notice of Filing of Exhibits in Support of
Defendants' Motion for Summary Judgment ("Defs. Exihibits"), Tab 9, at
96, 2) draft chapters of reports, id., 3) design how a job would be
accomplished id., at 99, 4) conduct interviews id., and 5) take
courses id., at 102. Thus, he fails utterly to meet his burden
of establishing that he was treated differently from anyone who did not
share his race or gender.
V. Plaintiff was not Subjected to a Hostile Work Environment
To permit a jury to find that he was subjected to a hostile working
environment, plaintiff must establish that his workplace was so permeated
with discriminatory intimidation, ridicule, and insult that it altered
the terms and conditions of his employment. Nat'l R.R. Passenger Corp.
v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 2073 (2002); Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993); Stewart v. Evans, 275 F.3d 1126,
1133-34 (D.C. Cir. 2002). In determining whether there is evidence upon
which a reasonable juror could find that such an environment exists,
courts are to consider the frequency of such conduct, its severity,
whether it was physically threatening or humiliating, and whether it
unreasonably interfered with the employee's work performance. Harris v.
Forklift Systems, Inc., 510 U.S. at 22.
Therefore, in assessing whether plaintiff has established even
a prima facie case of a hostile working environment, one must look at the
entire atmosphere in which plaintiff worked to see if it meets the Harris
Plaintiff claims that he was "subject to harsh and openly abusive
criticism by superiors in front of workers who were part of the daily
process of job growth and success." Compl. ¶ 4. Plaintiff further
claims that "[t]he work place that GAO presented to Plaintiff was unsafe
hostel [sic] and one in which he could not function and was harassed
daily." Id., ¶ 11. Plaintiff identifies two supervisors who he claims
treated him badly: Joan Slowitsky and Thomas Gosling.
A. Joan Slowitsky
When questioned by defense counsel during his deposition, plaintiff
claimed that Slowitsky made the following statements to him:
. . . [N]o one is going to show you how to get around at
GAO. There's no need of you going to the other team lead
or the assistant director about me because I've been
here 22 years. It don't matter — it does not
matter what you tell them, only what I say is going to
count. Her actions of when we were in counseling
session, her loud voice, and bamming [sic] and pointing
at me and slamming on the desk, expressions towards me,
the times when we were in counseling with Ms. Sladt and
she tried to belittle me and tell me that I wasn't
worthy of being at GAO, and I need to go find somewhere
else to be.
Defs. Exhibits, Tab 9, at 118.
In her deposition testimony, Slowitsky denies that she ever yelled at
plaintiff or even raised her voice at him. Defs. Exhibits, Tab 8, at 29. In
fact, Slowitsky claims that she even made efforts to help him succeed in
meeting the required performance standards Id., at 56.
B. Thomas Gosling
Gosling supervised plaintiff for a ninety day period from February 7,
2000, to May 7, 2000. Plaintiff claims that during that ninety day period,
known as plaintiffs "opportunity plan," Gosling treated him in a "strict"
manner. Defs. Exhibits, Tab 9, at 82. However, plaintiff conceded that he
had no evidence to support his claim and that Gosling explained that the
purpose behind the opportunity plan was to show improvement in the areas in
which he had received low marks from Slowitsky. Id.,
at 63. Thus, plaintiff
admitted that he understood that the reason he was not allowed to get
assistance in preparing his reports was that Gosling was attempting to rate
The assistant director whose name I think is Steve is
coming to me. Steve — I can't get his last name
out. Steve — he told me that because I'm under
scrutiny for 90 days, I can't be getting any help in
terms of coaching or helping write up documentation
because they have to grade me.
Id., at 66.
Clearly, the evidence in this case does not support plaintiffs claim that
he was subjected to a hostile work environment. Although both Slowitsky and
Gosling refute plaintiffs claim that they treated him poorly, even if true,
the alleged treatment does not rise to the level of a hostile work
environment. Slowitsky's alleged statements make no mention of either
plaintiffs race or gender. Furthermore, as to Gosling, there is no evidence
that plaintiff endured jokes, insults, or calumny based on either his race
or gender. His claim of being subjected to a hostile working environment is
utterly unsupported by any evidence and must, therefore, be dismissed.
VI. Plaintiff was not Subjected to Retaliation
In order to assert a claim of retaliation under Title VII, "plaintiff
must establish that: 1) he or she engaged in a statutorily protected
activity; 2) he or she was subjected to adverse personnel action; and 3)
a causal connection exists between the adverse action and the protected
activity." Lutes v. Goldin, 62 F. Supp.2d 118, 133 (D.D.C.
When specifically asked during his deposition what he believed to be the
form of the GAO's retaliation, plaintiff identified the following: 1)
Slowitsky's treatment of him, id., at 103, 2) Sladt's refusal to hear
plaintiffs complaints about Slowitsky, id., 3) Beusse's refusal to entertain
plaintiffs complaints, id., 4) the correction of his employment contract to
reflect a 2 year probationary period versus a 1 year period id. at 104, and
5) DiNapoli's telling plaintiff that it didn't matter what anyone else
thought about plaintiffs work and that only DiNapoli's opinion mattered
since he was plaintiffs supervisor. Id.
A. Slowitsky's Treatment of Plaintiff
Slowitsky was plaintiffs supervisor from September 1, 1999, to December
31, 1999. Although not specified by plaintiff, the court will assume that
the behavior he complains of occurred at some point during the period of
time that she oversaw plaintiffs work. It is unclear, however, what exactly
plaintiff claims provoked the alleged retaliation. Plaintiff cannot claim
that his treatment at the hands of Slowitsky was in retaliation for his
filing of an EEO complaint since plaintiff first contacted that GAO Civil
Rights Office on April 24, 2000, a full four months after he was last
supervised by Slowitsky.
B. Sladt's Treatment of Plaintiff
Next, plaintiff apparently claims Sladt's refusal to hear plaintiffs
complaints about Slowitsky was an act of retaliation. Again, however, the
court is unsure what exactly prompted the alleged retaliation. It could
be that plaintiff contends that Sladt's refusal to entertain his
complaints about Slowitsky was in retaliation for plaintiffs attempt to
register those complaints. If that is the case, plaintiffs claim of
retaliation as to Sladt must fail as it hardly rises to the level of
retaliation recognized by the law. Sladt's refusal to entertain
plaintiffs complaints, if true, can in no way be classified as an adverse
personnel action. See Brown v. Brody, 199 F.3d 446 (D.C. Cir. 1999).
Notwithstanding the negative impact Sladt's treatment may have had on
plaintiffs feelings, it did not constitute a significant change in
plaintiffs employment status or benefits and, therefore, is not
C. Beusse's Treatment of Plaintiff
The same argument that holds true for Sladt also applies to Beusse. If
plaintiff contends that Beusse's refusal to entertain plaintiffs complaints
about Slowitsky was in retaliation for plaintiffs attempt to register those
complaints, then that, too, fails to make out an actionable claim of
D. The Correction of Plaintiffs Employment Contract
Plaintiff alleges that the GAO's decision to change his personnel
records to reflect a longer probationary period was in fact retaliation
for his contacting the GAO Civil Rights Office on April 24, 2000: "And
also I'm testifying here that when I brought it to GAO's attention that
they had me under one-year probation under the civil rights complaint
that I filed at GAO*fn5 — that is, when they corrected it and told
me, oh, I'm sorry, Mr. Rowland, it's not one year." Defs. Exhibits, Tab
9, at 29. Plaintiff further states: "[w]hen I went to the civil rights
office and I was talking to the civil rights counselor in confidence, and
she was trying to do something off the record to help me and once she did
that, the only thing that happened — they rectified the situation
which goes back to the probationary period one year to be able to put me
in a position to where they continued the execution of ridding me out of
this organization." Id. at 104
Defendants argue that, when the GAO notified plaintiff that his
probationary status had been incorrectly conveyed in his original offer
letter dated August 10, 1998, it was merely correcting an oversight:
"Admittedly, Michele Hamilton sent to plaintiff a memorandum dated May
2, 2000, informing him that his original offer letter — indicating
that he would "serve a 1 year trial period" — was in error." Defs.
Mot. at 25. According to defendants, "Ms. Hamilton's May 2, 2000 letter
did not `change' plaintiffs probationary period to a two year period.
Rather, the letter merely notified plaintiff of an error in his record."
The issue, therefore, is whether there is any evidence that defendants
altered their original calculation in retaliation for plaintiffs meeting
with a counselor in the GAO Civil Rights Office in April 2000.
According to four Official Notices of Personnel Action that antedated
his contacting the GAO Civil Rights Office in 2000 dated August 16,
1998, August 30, 1998, January 3, 1999, and August 29, 1999, plaintiffs
appointment was identified as being subject to a two year probationary
period scheduled to begin August 16, 1998, just six days following the
date of the GAO's original offer letter to plaintiff.
In addition, it must be noted that the four Official Notices of Personnel
Action originated in the U.S. Office of Personnel Management, whereas
plaintiffs offer letter was sent by Michele Hamilton, Human Resource Manager
of the GAO. Although plaintiffs reliance on the letter from the
understandable, that reliance alone does not entitle plaintiff to benefits
or rights that were never his. In addition, the corrective memorandum that
plaintiff received from Hamilton on May 2, 2000, refers plaintiff not only
to a GAO regulation, but also to the four Official Notices of Personnel
Action that antedate his contacting the GAO Civil Rights office in 2000.
Plaintiff thus fails to meet his burden as to the very first element
of his prima facie case of retaliation. The memorandum sent by the GAO to
plaintiff regarding his probationary status, while disappointing to
plaintiff, clearly does not rise to the level of being an adverse personnel
action. Correcting a mistaken statement cannot possibly be a legal wrong,
actionable in a Title VII action.
E. DiNapoli's Statements
After receiving what was presumably an unfavorable write-up from
DiNapoli, plaintiff contacted Mr. Sprull. According to plaintiff, "after
the incident Mr. Sprull was reassigned on his reserve duty out of GAO for
a year." Defs. Exhibits, Tab 9, at 104. Plaintiff continues: "No sooner
than a week after Mr. DiNapoi told me that it doesn't matter what someone
else thinks about what you did. The only person that matter is me because
I'm the supervisor." Id. Plaintiff adds that he believed that this
statement, and perhaps others, were made between July 1998 and July
1999. Id. at 105. As with Sladt's and Beusse's treatment of plaintiff,
DiNapoli's statements do not rise to the level of an adverse personnel
action and, therefore, do not constitute a basis for an actionable claim
of retaliation. Additionally, and once again, DiNapoli's statements were
made before plaintiff filed his EEO complaint in 2000.
For the reasons stated above, defendants' motion for summary judgment
will be granted and this case will dismissed. An Order accompanies this
Memorandum Opinion. Additionally, final judgment is entered for the