The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge
REPORT AND RECOMMENDATION
For the reasons stated in this opinion, I recommend that the parties' cross motions for summary judgment be denied except that Howard University's motion be granted as to plaintiff's claims based on Howard's leaving certain faculty positions vacant and hiring a tax professor.
The plaintiff, Dawn V. Martin ("Martin"), was a visiting professor at Howard University Law School*fn1 from August 16, 1996 until her contract expired on May 15, 1998.
This lawsuit grows out of incidents involving a mentally deranged homeless man, Leonard Harrison ("Harrison"), whose strange behavior led plaintiff to seek protection from HU. Subsequently, however, plaintiff complains that HU created a hostile working environment because of its inadequate reaction to Harrison's behavior. She also complains that HU retaliated against her because of her complaints to the administration about its inadequate response.
I. The Parties' Failure to Comply with the Local Rules
The parties have cross-moved for summary judgment. This obliged each of them to comply with our local rules by filing a Statement of Material Facts as to Which There Is No Genuine Issue. LCvR 7.1(h). Once they received each other's Statement, they were obliged to file an opposition that"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." Id. The statement of genuine issues must refer to that portion of the record, created by discovery and otherwise, that supports the contention that a certain fact is disputed. Id. Neither party complied with the rule. Plaintiff filed Plaintiff's Statement of Material Undisputed Facts ("Plains. Statement"), but HU filed what it called Howard University's (Corrected) Statement of Material Facts that Preclude Summary Judgment for Plaintiff. HU said that it filed this document"to support its opposition to plaintiff's motion for summary judgment" and then in a footnote stated:
HU asserts that this statement precludes this Court from entering summary judgment for plaintiff. Indeed, to the extent these facts are undisputed by plaintiff, as set forth in HU's motion for summary judgment, this Court must grant summary judgment for HU. Moreover, the existence of these factual issues precludes the entry of summary judgment for plaintiff.
HU's assertion that material facts preclude summary judgment for plaintiff has to mean that plaintiff is not entitled to summary judgment because there are factual issues that have to be resolved by a jury. But, if there are factual issues that have to be resolved by a jury, that means that HU is not entitled to summary judgment either since the existence of any factual issues precludes granting summary judgment for HU as much as it precludes it for plaintiff.
Unfortunately, plaintiff, apparently forgetting that she was both movant and opponent of a motion, also failed to comply with the rule and file a statement of facts as to which there is a genuine issue. The parties' failure to comply with the local rule puts me in the impossible predicament of attempting to resolve cross-motions for summary judgment without knowing exactly what facts are disputed. Confronted with two irreconcilable versions of the facts, I certainly cannot prefer one to the other.
I could, at this point, say a plague on both your houses and strike both motions for failure to comply with the local rule. But, given the tortured, acrimonious history of this case, I am, to put it mildly, reluctant to engender another round of briefing or an appellate issue on what might be characterized as a technical ruling. Moreover, I have presided over this case so long that I can divine what is and what is not in dispute for the limited purposes of my responsibility. As will become obvious, I am firmly convinced that there are genuine issues of material fact as to nearly every issue dividing the parties. Given that conclusion, striking the cross motions would only prolong the agony that this case has become for the parties and the court.
II. Issues Resolved by Chief Judge Hogan Will Not Be Revisited
Before turning to my analysis, I must note that in 1999, Chief Judge Hogan denied HU's motion for summary judgment and specifically held that there were factual issues that precluded an award of summary judgment. Martin v. Howard Univ., 1999 U.S. Dist. LEXIS 19516 (D.D.C. Dec. 16, 1999). As hard as it is to believe, in its current motion, HU ignores that decision and once again advances the very arguments Judge Hogan rejected. It is, of course, legitimate for a party to renew a motion for summary judgment based on information newly garnered as a result of the discovery process. See Williamsburg Wax Museum, Inc. v, Historical Figures, Inc., 810 F.2d 243, 250 (D.C. Cir. 1987). But, what HU cannot do is ignore the Chief Judge's decision and expect me to ignore it as well. I cannot reconsider a decision I did not issue, nor do I have any power to overrule the Chief Judge. Thus, his determinations control.
More specifically, the Chief Judge concluded:
1. The alleged harassment by Harrison of the plaintiff was based on her sex;
2. Whether Harrison's conduct was sufficiently severe or pervasive to be actionable under the rubric of a hostile environment claim was a jury question;
3. Whether plaintiff's letter was sufficiently detailed to place HU's Dean Alice Gresham Bullock ("Bullock") on notice that plaintiff believed that she had been the victim of a hostile work environment was a question of fact for the jury;
4. Whether plaintiff engaged in protected activity when she informed Bullock of Harrison's activities and complained about what she felt was the inadequacy of campus security was a question of fact for the jury;
5. There was a sufficient causal connection between the adverse actions about which plaintiff complained and her complaints about Harrison and campus security to make the issue of whether the former were retaliation for the latter a triable issue of material fact; and
6. Whether one of plaintiff's complaints of retaliatory action, that, as a result of HU's retaliation, she was evicted from her officer prematurely, constituted an adverse employment action was a material issue of fact for the jury.
I will not permit HU, in its second motion for summary judgment, to re-litigate those issues that were resolved against it. Triable issues of fact in 1999 remain triable issues of fact in 2003.
III. The Issues Raised by HU's Second Motion That May Be Considered
Reading HU's second motion with some indulgence, there are only three issues that it did not press in its first motion: 1) whether plaintiff suffered an adverse personnel action, i.e., a materially adverse consequence affecting the terms, conditions, or privileges of employment because of Harrison's activities; 2) whether HU's response to plaintiff's complaints about Harrison was adequate;*fn2 and 3) whether information disclosed during discovery compels the conclusion that Howard did not retaliate against plaintiff such that no reasonable juror could conclude to the contrary.
I. Plaintiff Need Not Show an Adverse ...