United States District Court, District of Columbia
ARTHUR PERRY BRUDER, Plaintiff, Pro se, Fairfax, VA.
For STEVEN CHU, Dr., Secretary of Energy, Defendant: Kenneth A. Adebonojo, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.
JOHN D. BATES, United States District Judge.
Plaintiff Arthur Perry Bruder, an attorney representing himself, brought this action against Steven Chu, in his official capacity as the Secretary of Energy for the United States Department of Energy (the " Department" ), alleging discrimination on the basis of sex and age in violation of federal law.  The Department has filed a motion to dismiss Bruder's claims under Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, for summary judgment. For the reasons discussed below, the Court will grant in part and deny in part the Department's motion.
As an initial matter, the Court adheres to Local Civil Rule 7(h)(1), which requires that a party submitting a motion for summary judgment must attach a statement of
material facts about which the moving 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 the motion must, in response, submit a statement of genuine issues enumerating all material facts that the party contends are at issue, again with appropriate citations to the record.
See id. If the opposing party fails to discharge this obligation, a court may take all facts alleged by the movant as admitted. Id. The purpose of this rule is to " place 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, 322 U.S.App. D.C. 35 (D.C. Cir. 1996). " [I]f a party opposing the motion fails to comply with this rule, then the district court is under no obligation to sift through the record and should instead . . . deem as admitted the moving party's facts that are uncontroverted by the nonmoving party's [Local Rule 7(h)(1)] statement."
Bonnette v. Shinseki, 907 F.Supp.2d 54, 62 n.3 (D.D.C. 2012) (citing SEC v. Banner Fund Int'l, 211 F.3d 602, 616, 341 U.S.App. D.C. 175 (D.C. Cir. 2000) (internal quotations omitted)).
Bruder's Statement of Material Facts in Opposition to Defendant's Motion to Dismiss or in the Alternative for Summary Judgment [ECF No. 18] (Pl.'s Stat.), does not set out each fact in a separate, consecutively-numbered paragraph supported by specific citation to record evidence. Bruder's failure to comply with the local rules has made it unnecessarily difficult for the Court to discern which facts are in dispute, particularly because he intersperses disputed facts with both undisputed facts and self-serving arguments. Additionally, Bruder frequently states that " evidence indicates . . ." or " evidence shows . . . ," but either fails to cite to anything in the record or cites to documents that do not support his claim. See, e.g., Pl.'s Stat. at 6-9, 12. Bruder also repeatedly cites to various depositions that have not been submitted to the Court. See, e.g., Pl.'s Stat. at 3, 5-12. To the extent Bruder's statement fails to comply with the requirements of Local Rule 7(h), the Court will " assume that facts identified by [the Department] in its statement of material facts are admitted."
Taylor v. Mills, 892 F.Supp.2d 124, 128 (D.D.C. 2012).
Bruder is an attorney in the Office of the General Counsel. Def.'s Stat. of Mat. Facts [ECF No. 13-1] (Def.'s Stat.) ¶ 1. His claims in this action stem from his six-month tenure in the Administrative Litigation and Information Law (" ALIL" ) group of the General Law Section (" GC-77" ) of the Department. Id. ¶ 48. At the end of 2006, GC-77 was reorganized, and Bruder was moved from the Legal Counsel group to the ALIL group where Isaiah Smith and Susan Beard were " his first and second line supervisors respectively." Id. ¶ ¶ 49-50. In addition to Bruder, there were four other employees in the ALIL group, all of whom were female and younger than Bruder. See Compl. at 2-3. Bruder does not claim that GC-77's reorganization or his movement to the ALIL group were driven by discriminatory animus or negatively affected his employment status.
In March 2007 and June 2007, Bruder received two interim evaluations for his work in the ALIL group. Def.'s Stat. ¶ 52. On both evaluations, Bruder received a " 3" rating on a 1-4 ascending scale in all of the five categories reviewed. Id. A " 3" is considered " fully successful," and anything over a " 3" is considered " highly successful." Id. ¶ 53. However, Bruder believed the rating he received was " bad." Id. ¶ 54. Bruder asked Smith, the supervisor who
assigned the performance evaluation ratings, why he had received this rating. Id. Smith disagreed that the rating was " bad," but also told Bruder that " his performance had been less than stellar" on several projects and that he " often did not complete his assignments and he did not complete them in a fashion that would have warranted higher ratings." Id. ¶ ¶ 55-56.
Beginning on July 11, 2007, Smith went on leave from work for a medical emergency, and Beard became more directly involved in supervising Bruder. Id. ¶ 57. Around this time, Beard requested Bruder's case assignment sheet and was " able to close four [FOIA] cases in short order simply by making a few phone calls to offices within the Department." Id. Beard reviewed another FOIA matter assigned to Bruder and found that he had " missed the main legal issue." Id.
On July 23, 2007, per his own request, Bruder was temporarily detailed to another legal group within the Department. Id. ¶ 63. Bruder returned to the ALIL group in October 2007. Opp'n at 9. At the end of that month, Bruder was given a final performance rating of " 3.2" - a score considered to be " highly successful." Id. ¶ 24. " [B]ased on this evaluation," Bruder received a cash award of $2,592. Id. ¶ ¶ 25, 58.
Around this time, Bruder initiated a formal complaint with the Department's Office of Civil Rights (" OCR" ), alleging that he had received " unfair and biased ratings" and " every one of the younger females" received better ratings. Id. ¶ 26. Bruder also alleged that he was given inferior work assignments; that he was never asked to be acting supervisor when Smith was out of the office; and that his supervisors made untruthful statements about his work product. Id. ¶ 31. OCR accepted these claims, as well as several other claims not at issue before this Court, for investigation. Id. On May 20, 2001, after an investigation into Bruder's claims and a hearing on his complaint, an administrative judge assigned by the EEOC dismissed Bruder's claims, finding that there was no genuine issue of material fact. Compl. at 8-11 (Notice of Final Order).
Subsequently, Bruder filed a complaint in this Court, alleging that he was treated differently than the four younger, female employees in his section. See Compl. at 2. In particular, Bruder alleges that he suffered age and gender discrimination because he received lower ratings on his performance evaluations (Count 1), was not selected to temporarily supervise the office when Smith was out (Count 2), and was given inferior case assignments (Count 3). Id. at 3-5. Additionally, Bruder alleges that Smith and Beard conspired to denigrate Bruder's work by making untruthful statements (Count ...