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Payne v. Salazar

United States District Court, District of Columbia

October 21, 2012

Cassandra M. PAYNE, Plaintiff,
v.
Ken SALAZAR, Secretary, U.S. Department of the Interior, Defendant.

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David A. Branch, Law Office of David A. Branch and Associates, PLLC, Washington, DC, for Plaintiff.

Oliver W. McDaniel, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, District Judge.

Plaintiff Cassandra Payne (" Plaintiff" ), an employee of the Department of the Interior, commenced this action against Defendant Ken Salazar [1] in his official capacity as Secretary of the Department of the Interior (" Defendant" ), alleging two claims of retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. When presented with a motion to dismiss earlier in these proceedings, this Court dismissed the action in its entirety. Payne v. Salazar, 628 F.Supp.2d 42, 52 (D.D.C.2009), aff'd in part, rev'd in part 619 F.3d 56 (D.C.Cir.2010). Subsequently, the United States Court of Appeals for the District of Columbia Circuit affirmed this Court's decision in part and reversed in part, remanding the action for further proceedings on Plaintiff's

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first retaliation claim— that in 2004, Defendant retaliated against her for filing a charge of religious discrimination with Defendant's Equal Employment Opportunity (EEO) Office. Payne, 619 F.3d 56. Specifically, Plaintiff's Amended Complaint alleges that Defendant retaliated against her by, inter alia, changing her work duties, giving her a minute-by-minute work schedule, and engaging in various harassing conduct such as insulting her, requiring her to get on her hands and knees to scrub the floor and to climb a step ladder to wash vertical blinds, and refusing to retrieve her inhaler or call 911 when she suffered an asthma attack at work. Am. Compl. ¶¶ 12-16, 22. Currently pending before the Court is Defendant's [29] Motion for Summary Judgment. Upon careful consideration of the parties' submissions, the relevant authorities, and the record as a whole, [2] the Court finds that Defendant has failed to demonstrate the absence of genuine disputes of material fact going to Plaintiff's retaliation claim. Accordingly, this Court shall DENY Defendant's [29] Motion for Summary Judgment.

I. LEGAL STANDARD

Summary judgment is appropriate where " the movant shows that there is no genuine dispute as to any material fact and [that she] ... is entitled to judgment as a matter of law." FED.R.CIV.P. 56(a). The mere existence of some factual dispute is insufficient on its own to bar summary judgment; the dispute must pertain to a " material" fact. Id. Accordingly, " [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Nor may summary judgment be avoided based on just any disagreement as to the relevant facts; the dispute must be " genuine," meaning that there must be sufficient admissible evidence for a reasonable trier of fact to find for the non-movant. Id.

In order to establish that a fact is or cannot be genuinely disputed, a party must (a) cite to specific parts of the record— including deposition testimony, documentary evidence, affidavits or declarations, or other competent evidence— in support of her position, or (b) demonstrate that the materials relied upon by the opposing party do not actually establish the absence or presence of a genuine dispute. FED.R.CIV.P. 56(c)(1). Conclusory assertions offered without any factual basis in the record cannot create a genuine dispute sufficient to survive summary judgment. Ass'n of Flight Attendants-CWA, AFL-CIO v. U.S. Dep't of Transp., 564 F.3d 462, 465-66 (D.C.Cir.2009). Moreover, where " a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact," the district court may " consider the fact undisputed for purposes of the motion." FED.R.CIV.P. 56(e).

When faced with a motion for summary judgment, the district court may not make

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credibility determinations or weigh the evidence; instead, the evidence must be analyzed in the light most favorable to the non-movant, with all justifiable inferences drawn in her favor. Liberty Lobby, 477 U.S. at 255, 106 S.Ct. 2505. If material facts are genuinely in dispute, or undisputed facts are susceptible to divergent yet justifiable inferences, summary judgment is inappropriate. Moore v. Hartman, 571 F.3d 62, 66 (D.C.Cir.2009). In the end, the district court's task is to determine " whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Liberty Lobby, 477 U.S. at 251-52, 106 S.Ct. 2505. In this regard, the non-movant must " do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); " [i]f the evidence is merely colorable, or is not sufficiently probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. 2505 (internal citations omitted).

In recognition of the difficulty in uncovering clear evidence of discriminatory or retaliatory intent, the district court should approach summary judgment in an action for employment discrimination or retaliation with " special caution." Aka v. Wash. Hosp. Ctr., 116 F.3d 876, 879-80 (D.C.Cir.1997), vacated on other grounds, 156 F.3d 1284 (D.C.Cir.1998) ( en banc ). Be that as it may, the plaintiff is not relieved of her burden to support her allegations with competent evidence. Brown v. Mills, 674 F.Supp.2d 182, 188 (D.D.C.2009). As in any context, where the plaintiff would bear the burden of proof on a dispositive issue at trial, then at the summary judgment stage she bears the burden of production to designate specific facts showing that there exists a genuine dispute requiring trial. Ricci v. DeStefano, 557 U.S. 557, 586, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009).

II. BACKGROUND

The Court begins its discussion of the facts by noting that this Court strictly adheres to the text of Local Civil Rule 7(h)(1), which requires that a party submitting a motion for summary judgment attach a statement of material facts as to which that party contends there is no genuine issue, with specific citations to those portions of the record upon which the party relies in fashioning the statement. See LCvR 7(h)(1). The party opposing such a motion must, in turn, submit a statement of genuine issues enumerating all material facts which the party contends are at issue and thus require litigation. See id. Where the opposing party fails to discharge this obligation, a court may take all facts alleged by the movant as admitted. Id. As the District of Columbia Circuit has emphasized, " [Local Civil Rule 7(h)(1) ] places the burden on the parties and their counsel, who are most familiar with the litigation and the record, to crystallize for the district court the material facts and relevant portions of the record." Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 151 (D.C.Cir.1996) (citing Twist v. Meese, 854 F.2d 1421, 1425 (D.C.Cir.1988)). Here, although both parties submitted the required statements, the statements, each comprising only four numbered paragraphs, are sparse and largely unhelpful to the Court in setting forth the required background. Indeed, certain key facts discussed by both parties in their briefing— for example, facts going to the timing of Defendant's alleged retaliatory conduct— are nowhere to be found. Accordingly, contrary to its preferred practice, the Court shall in some instances cite directly

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to the exhibits on which the parties rely in their briefing rather than to their statements of material facts.[3]

Plaintiff began working for Defendant, at the Department of the Interior, in a temporary capacity beginning in 1978. Def.'s Stmt. ¶ 1. Plaintiff became a permanent employee in 1984, as a tractor operator at Rock Creek Park in Washington, D.C., where she worked Monday through Friday. Id. See also Am. Compl. ¶ 3. According to Plaintiff, in June 2000, she suffered a nearly fatal allergic reaction to a bee sting while at work. Am. Compl. ¶ 3; Pl.'s Opp'n at 3 (citing Ex. A (EEOC Hearing Transcript), at 10-11). Upon her return shortly thereafter, Plaintiff was reassigned to work indoors as a maintenance worker Wednesday through Sunday at the Rock Creek Nature Center. [4] Am. Compl. ¶¶ 3-5; Ans. ¶¶ 3-5; Pl.'s Opp'n at 3 (citing Ex. A (EEOC Hearing Transcript), at 10-11). In response to the change in her work schedule, Plaintiff asked her supervisor, Dwight Madison, if she could take weekend leave so that she could attend a Bible college on Saturdays and church services on Sundays, but her request was denied. Am. Compl. ¶¶ 5-6; Ans. ¶ 5; Pl.'s Opp'n at 3 (citing Ex. A (EEOC Hearing Transcript), at 12-15).

In January 2004, Plaintiff wrote a letter to Laura Illige, Chief Ranger of Rock Creek Park, requesting greater flexibility in her work schedule on Sundays to permit her to " exercise her religious observance." Pl.'s Opp'n, Ex. B (Selected EEOC Record Exhibits), at 76-77. See also Def.'s Mem. at 4. The record reflects, and Defendant nowhere disputes, that Plaintiff did not receive a response to this letter until May 2004, at which point her request was denied. Pl.'s Opp'n at 4 (citing Ex. B (Selected EEOC Record Exhibits), at 82). On May 10, 2004, Plaintiff sought informal counseling from Joy Harris, an EEO counselor, to whom she complained that Defendant was discriminating against her by not accommodating her religious beliefs. Def.'s Stmt. ¶ 2; Pl.'s Opp'n at 4 (citing Ex. A (EEOC Hearing Transcript), at 38). It was around this time, Plaintiff alleges, when Defendant's retaliatory conduct against her began— including, as set forth in greater detail below, harassing remarks, a change in duties, the imposition of unreasonable working conditions, and refusal to provide medical attention when she suffered

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an asthma attack at work. See Am. Compl. ¶ 22; Pl.'s Opp'n, at 4-5. To the contrary, Defendant contends that the alleged conduct about which Plaintiff complains, by Plaintiff's own admissions, began long before Plaintiff contacted the ...


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