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February 21, 2003


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

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 are irrelevant.*fn3

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. ยง 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 ...

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