United States District Court, D. Columbia.
LINDA A. MCCAULEY, Plaintiff,
KENNETH L. SALAZAR, Secretary, DEPARTMENT OF THE INTERIOR, Defendant
LINDA A. MCCAULEY, Plaintiff, Pro se, Washington, DC.
For LINDA A. MCCAULEY, Plaintiff: Richard A. Ripley, LEAD ATTORNEY, HAYNES AND BOONE, LLP, Washington, DC.
For KENNETH LEE SALAZAR, Secretary, Department of the Interior, Defendant: Peter Rolf Maier, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.
AMY BERMAN JACKSON, United States District Judge.
On May 29, 2009, plaintiff Linda A. McCauley was terminated from her position as an Administrative Services Specialist at the U.S. Department of Interior's Division of Administration, Office of Surface Mining. EEOC Decision No. 0320110042, 1-2 [Dkt. # 1] (" EEOC Decision" ). Plaintiff claims that she was terminated " improperly" after filing a claim of " Harassment/Reprisal and discrimination," that she was denied leave to which she was entitled under an " FMLA Leave Share Program," that she was denied reasonable accommodations to which she was entitled, that she was denied compensation for an on-the-job injury, that she is owed pay for leave she accrued, and that her termination violated her right to due process. Compl. at 1-2, 4 [Dkt. # 1]. Defendant asserts that the true reasons for plaintiff's termination were her excessive absences and her absences without leave (" AWOL" ). Def.'s Mem. of Law in Supp. of Mot. for Summ. J. at 1-2 [Dkt. # 19-1].
Starting in July 2009, plaintiff filed a series of administrative appeals that culminated in a November 2011 EEOC decision upholding the Merit Systems Protection Board's (" MSPB" ) determination that her termination had been proper and non-discriminatory. EEOC Decision at 2, 6. Plaintiff then filed this pro se action against former Secretary of the Interior Kenneth Lee Salazar on December 23, 2011. Compl. at 1. Defendant answered the complaint on September 24, 2012 [Dkt. # 9]. After an initial scheduling conference with both parties, the Court referred the case to the Circuit Executive's Mediation Program and appointed counsel for plaintiff for that limited purpose. Order of Appointment of Counsel for the Limited Purpose of Mediation & Referral to Mediation at 1 [Dkt. # 13]. The mediation was unsuccessful, and defendant filed the motion for summary judgment now pending before the Court on July 12, 2013 [Dkt. # 19].
On July 17, 2013, the Court notified the pro se plaintiff that the Court " may grant
[defendant's] motion and dismiss the case if [she] fail[ed] to respond." Fox/Neal Order at 1 [Dkt. # 21], citing Fox v. Strickland, 837 F.2d 507, 509, 267 U.S.App.D.C. 84 (D.C. Cir. 1988) (holding that a district court must take pains to advise a pro se party of the consequences of failing to respond to a dispositive motion and that the notice " should include an explanation that the failure to respond . . . may result in the district court granting the motion and dismissing the case" ). The Court also directed plaintiff to Rule 56, setting forth those portions of the Rule related to supporting factual positions at summary judgment. Id. at 2, quoting Fed.R.Civ.P. 56(c), (e). The Court explained that " parties such as plaintiff, who are on the opposing side of a motion for summary judgment must rebut the moving party's affidavits with evidence, such as other affidavits or sworn statements; mere statements that the moving party's affidavits are inaccurate or incorrect are not sufficient." Id.
On August 16, 2013, plaintiff filed what was styled as her opposition to defendant's " Motion for Summary Judgment and to dismiss." Pl.'s Opp. to Mot. for Summ. J. to Dismiss at 1 [Dkt. # 22] (" Pl.'s Opp." ). But the pleading did not address the substance of the motion. In the three-page, handwritten opposition, plaintiff simply contested " line[s] 13, 14, 15 and 16" of defendant's Statement of Material Facts as to Which There is No Genuine Issue, saying that " Attachment 1 (9 pages)" and " Attachment 2 (2 pages) . . . prove[ ] that this fact is not accurate." Pl.'s Opp. at 1-2; see also Def.'s Statement of Material Facts as to Which There is No Genuine Issue ¶ ¶ 13-16 [Dkt. # 19-2]. Paragraphs 13 through 16 of defendant's statement of material facts relate to the timing of plaintiff's termination and her first administrative appeal. See id. Many documents have been attached to the various filings in this case, so it is not entirely clear which records were being referenced, but in any event, plaintiff offered no explanation as to why the cited materials created a genuine issue of fact, or why the dispute was material to the motion for summary judgment.
The remaining page and a half of the opposition was devoted to plaintiff's request for an extension of time to further respond to defendant's motion, her request for court-appointed counsel, and her request that the Court " consider this case as a De Novo Case." Pl.'s Opp. at 2--3. Plaintiff also attached thirteen pages of exhibits to the opposition, including a Wikipedia article defining " trial de novo" and correspondence with her former employer regarding her medical condition and requests for leave. See generally Ex. 1 to Pl.'s Opp. [Dkt. # 22-1].
On February 19, 2014, the Court in its discretion denied plaintiff's request for appointed counsel without prejudice and granted her request for an extension of time. Order of Feb. 19, 2014 at 3 [Dkt. # 24]; see also Poindexter v. FBI, 737 F.2d 1173, 1179, 238 U.S.App.D.C. 26 (D.C. Cir. 1984) (" The decision to appoint [counsel] rests in the sound discretion of the trial judge." ). Repeating the language of the original Fox/Neal Order, the Court directed plaintiff to take note of Rule 56, and it set forth the provisions of the Rule related to supporting factual positions at summary judgment. Order of Feb. 19, 2014 at 3-4, quoting Fed.R.Civ.P. 56(c), (e). The Court again explained that " parties such as plaintiff, who are on the opposing side of a motion for summary judgment, must rebut the moving party's affidavits with evidence, such as other affidavits or sworn statements. Mere statements that the ...