United States District Court, District of Columbia
MEMORANDUM OPINION ADOPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
KETANJI BROWN JACKSON United States District Judge
Plaintiff Rachelle Lawrence (“Plaintiff”) has sued the Department of the Treasury (“Defendant”), alleging that the agency discriminated against her on the basis of her sex, race, and age, and retaliated against her for participating in protected activity in violation of Title VII of the Civil Rights Act of 1962, 42 U.S.C. §§ 2000e- 2000e-17, and the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621- 634. Plaintiff’s claims in this matter relate to two settlement agreements that she entered into with Defendant pertaining to a prior discrimination and retaliation complaint that Plaintiff had filed against Defendant-one dated February 2008 (“February Agreement”) and the other dated October 2008 (“October Agreement”)-and the allegations of the instant complaint also concern a circumstance that arose during the execution of those settlement agreements; specifically, Defendant’s apparent realization that it had overpaid Plaintiff under the terms of the agreements and its garnishment of her subsequent wages to recoup those overpayments. On February 10, 2014, Defendant moved for judgment on the pleadings and for summary judgment (ECF No. 29), a motion that Plaintiff opposed (ECF No. 33). On April 21, 2015, nearly a year after Defendant’s motion became ripe for this Court’s consideration, Plaintiff moved for leave to amend her complaint (ECF No. 38), seeking to add allegations related to different discrimination complaints that Plaintiff filed in 2013 and 2014. On February 24, 2015, this Court referred this matter to a Magistrate Judge for full case management.
Before this Court at present is the Report and Recommendation that the assigned Magistrate Judge, G. Michael Harvey, has filed regarding Defendant’s motion for judgment on the pleadings and for summary judgment and Plaintiff’s motion for leave to amend her complaint. (See ECF No. 40.) The Report and Recommendation, which is attached to this Memorandum Opinion, reflects Magistrate Judge Harvey’s opinion that this Court should treat Defendant’s motion as one for summary judgment, and so construed, should grant that motion and deny Plaintiff’s motion for leave to amend her complaint. (Id. at 1.) Specifically, Magistrate Judge Harvey first finds that Plaintiff’s response to Defendant’s statement of material facts largely fails to meet the requirements of this Court’s Rules or the Federal Rules of Civil Procedure, as it is argumentative and in many instances fails to cite to the factual record. (Id. at 2-6.) He further finds that Plaintiff’s claim that she was coerced into signing the October Agreement fails both because she has not established any adverse employment action, and also because she has not shown that Defendant did anything more than encourage her to sign the agreement or that Defendant was animated by discriminatory or retaliatory motive in offering such encouragement. (Id. at 19-24.) With respect to her claims regarding purported breach of the February Agreement, Magistrate Judge Harvey finds that the exclusive forum for any such claim is the Court of Federal Claims and not this Court, and that even if this Court could hear her claim, Defendant has offered legitimate, non-discriminatory reasons-reasons that Plaintiff has failed to rebut-for any violations of the February Agreement. (Id. at 25-35.) The Report and Recommendation further finds that Plaintiff’s wage garnishment claim fails because Defendant has offered legitimate, non-discriminatory, and unrebutted reasons the garnishment. (Id. at 35-36.) Finally, Magistrate Judge Harvey recommends that this Court deny Plaintiff’s motion for leave to amend her complaint to add allegations regarding additional EEO complaints that Plaintiff filed in 2013 and 2014, finding that the proposed amendment would broaden the scope of this litigation, delay trial of this matter, and unduly prejudice Defendant. (Id. at 36-39.)
Magistrate Judge Harvey’s Report and Recommendation further advises the parties that the failure to file timely objections may result in waiver of further review of the matters addressed in the Report and Recommendation. (Id. at 40.) Under this Court’s local rules, any party who objects to a Report and Recommendation must file a written objection with the Clerk of the Court within 14 days of the party’s receipt of the Report and Recommendation. LCvR 72.3(b). As of this date-over a month after the Report and Recommendation was issued-no objections have been filed.
This Court has reviewed Magistrate Judge Harvey’s report and agrees with its careful and thorough analysis and conclusions. Therefore, the Court will ADOPT the Report and Recommendation in its entirety. Accordingly, as set forth in the separate Order accompanies this Memorandum Opinion, Defendants’  Motion for Judgment on the Pleadings and for Summary Judgment will be GRANTED and Plaintiff’s  Motion for Leave to Amend Her Complaint will be DENIED.
REPORT AND RECOMMENDATION
Plaintiff, Rachelle Lawrence, brings this action against her employer, the Department of the Treasury, alleging that it discriminated against her based on her sex, race, and age, and retaliated against her for participating in protected Equal Employment Opportunity (“EEO”) activity in violation of Title VII of the Civil Rights Act of 1962, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. This case was referred to the undersigned for full case management on February 24, 2015. Before the undersigned are two motions: (1) defendant’s motion for judgment on the pleadings and for summary judgment and (2) plaintiff’s motion to amend her complaint. Upon consideration of the motions, the undersigned recommends that defendant’s motion be granted and plaintiff’s motion be denied.
A. Plaintiff’s Response to Defendant’s Statement of Material Facts
As in every motion for summary judgment,  defendant, the movant, submitted a statement of material facts which defendant claims support the entry of summary judgment against plaintiff. See Def. Mot., Statement of Material Facts (“SOF”). Plaintiff, in turn, responded to defendant’s statement of facts. See Pl. Opp., SOF. Based on those submissions, the undersigned must determine which material facts, if any, remain in dispute. Accordingly, before the undersigned can set forth the facts pertinent to the adjudication of defendant’s motion, the undersigned must address that threshold matter.
The facts set forth in Part B of this section are compiled primarily from the facts submitted in connection with defendant’s motion which went unchallenged by plaintiff in her response. See L. Civ. R. 7(h) (“In determining a motion for summary judgment, the Court may assume that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion.”). Where relevant facts are properly disputed, those disputes are addressed as they arise in the analysis. Facts not properly disputed are treated as conceded. The undersigned’s reasons for doing so are explained below.
In her response to defendant’s motion, plaintiff often attempts to raise a dispute of fact but fails to meet the standards for doing so imposed by Federal Rule of Civil Procedure 56 and our Local Rules. Rule 56 requires a party disputing an asserted fact to support the dispute with citation to “particular parts of materials in the record.” Fed.R.Civ.P. 56(c)(1). The Rule further states that a court need not consider materials not cited by a party in determining whether a genuine dispute of fact exists. Id. 56(c)(3). Finally, the Rule warns that failing to properly address a fact permits a court to find that the fact is undisputed for purposes of the summary-judgment motion. Id. 56(e). Similarly, Local Rule 7(h) provides, in relevant part: “[a]n opposition to . . . a motion [for summary judgment] 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, which shall include references to the parts of the record relied on to support the statement.” L. Civ. R. 7(h) (emphasis added).
Our Court of Appeals has repeatedly warned litigants against shirking their duties under Rule 56 and Local Rule 7(h) in responding to motions for summary judgment. For example, in Jackson, the D.C. Circuit upheld the decision of the district court to grant summary judgment to the defendant on the basis that the plaintiff had not properly responded to the defendant’s assertions of fact. Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 151 (D.C. Cir. 1996). There, the plaintiff failed to cite to parts of the factual record and instead “blend[ed] factual assertions with argument regarding their legal significance.” Id. at 148. The district court found such responses inadequate under the predecessor to our Local Rule 7(h) and concluded that the defendant’s statements of fact were therefore undisputed. Id. The D.C. Circuit affirmed, noting that the district court need not comb through the factual record to ferret out disputes of material fact. Id. at 151. Instead, rules like our Local Rule 7(h) appropriately “plac[e] 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.” Id. The Court of Appeals further observed that the plaintiff’s attempt at a response was wholly inadequate:
[Plaintiff’s] “relevant facts” section fails functionally to comply with the [local] rule’s plain terms and purpose. Twenty-nine pages long, the section hardly complies with the rule’s requirement that statement [sic] of genuine disputed material issues be “concise.” Replete with factual allegations not material to [plaintiff’s] substantive claims and repeatedly blending factual assertions with legal argument, the “relevant facts” section does not satisfy the purposes of a Rule 108(h) statement. In order to identify material disputed issues that would preclude the entry of summary judgment, the court would have to sift and sort through the record, that is, engage in time-consuming labor that is meant to be avoided through the parties’ observance of Rule 108(h).
Id. at 153. Indeed, the D.C. Circuit found that a district court can reject a deficient response to a statement of facts without first evaluating whether the failure was willful or prejudiced the movant. Id. Instead, the district court has broad discretion to excuse, or not excuse, such failures. Id.; see also Twist v. Meese, 854 F.2d 1421, 1425 (D.C. Cir. 1988) (finding that the district court is not “obliged to sift through hundreds of pages of depositions, affidavits, and interrogatories in order to make [its] own analysis and determination of what may, or may not, be a genuine issue of material disputed fact”); SEC v. Banner Fund Int’l, 211 F.3d 602, 616 (D.C. Cir. 2000) (district court was “fully justified in treating as admitted [plaintiff’s] statement of material facts” where defendant failed to “poin[t] to specific parts of the record controverting” those facts); Robertson v. Am. Airlines, Inc., 239 F.Supp.2d 5, 9 (D.D.C. 2002) (striking movant’s statement of facts for “liberally mix[ing] facts with argument” which “does nothing to assist the court in isolating the material facts, distinguishing disputed from undisputed facts, and identifying the pertinent parts of the record”); Gibson v. Office of Architect of the Capitol, No. Civ.A.00-2424(CKK), 2002 WL 32713321, at *1 (D.D.C. Nov. 19, 2002) (finding that non-movant’s response to statement of facts violated local rule because it was “not ‘concise’, ” was “devoid” of references to parts of the factual record, “rarely address[ed] the facts, ” and included “excess, unresponsive verbiage”); Williams v. Court Servs. & Offender Supervision Ag. for D.C., Case No. 08-cv-1538 (RCL), 2015 WL 3876602, at *1 (D.D.C. June 22, 2015) (striking response to statement of facts where responses were “replete with argument, speculation, conjecture, and assumptions, ” were voluminous, not concise, and failed to cite to record evidence).
Here, plaintiff’s responses to defendant’s statement of material facts fall woefully short of the requirements of Rule 56 and Local Rule 7(h). Many of plaintiff’s responses fail to cite to any part of the factual record. See Pl. Opp., SOF ¶¶ 6, 17, 19, 23, 27, 30, 33-35, 37, 38-43, 46, 47, 51, 52, 57. In some instances where plaintiff does cite to some part of the record, it appears that plaintiff intended to cite to her affidavit or some other document and simply failed to provide a sufficiently complete or specific citation. See, e.g., id. ¶¶ 23, 30, 33, 35, 39, 42, 47 (citing to “Declaration” without further indication of page or paragraph numbers); id. ¶ 38 (citing to “Plt’s Exh no. ??”); id. ¶ 53 (citing to “Def. Exh. ??”). At other times, it appears plaintiff simply left her thought unfinished. See, e.g., id. ¶ 43 (ending response with incomplete sentence). Most of plaintiff’s responses, whether they cite to the factual record or not, fail to meaningfully respond to defendant’s factual assertions. Indeed, many of them do not address whether the stated fact is true or false. Instead, they are replete with argument and speculation which is out of place in a statement of facts. See, e.g., ¶¶ 6, 14, 17-19, 21, 23, 27, 30, 34, 37, 41, 42, 46, 51, 56, 57.
In essence, plaintiff has submitted a half-composed draft of a response to defendant’s statement of facts. See Robinson v. Dist. of Columbia, Civil Action No. 09-2294 (JEB), 2015 WL 5442434, at *4 (D.D.C. Sept. 15, 2015) (chiding non-movant for submitting response to summary judgment “with a fit and finish more akin to a law student’s hastily drafted exam response than a professional, well-groomed submission”). The scattered, incomplete, and vague nature of plaintiff’s responses makes the work of the Court more onerous. It is not the burden of this Court to defend plaintiff against summary judgment. Instead, the burden is hers. The undersigned declines plaintiff’s invitation to do the heavy lifting for her in this case.
B. Relevant Facts
The relevant facts, drawn from facts submitted by defendant which went undisputed or were inadequately disputed by plaintiff, as well as the factual record submitted to the Court, are as follows:
Plaintiff is an African American female over the age of forty who, at all times relevant to this complaint, was an employee of the Bureau of Engraving and Printing, U.S. Department of the Treasury, in Washington, D.C. (“BEP”). Def. Mot., SOF ¶ 1. Plaintiff commenced her employment with BEP in 2004 as a police officer. Id. ¶ 2. She brings one ADEA claim and three Title VII claims against her employer. See Am. Compl. at 8-9.
In 2007, plaintiff filed an EEO discrimination complaint against BEP alleging that she was subjected to a hostile work environment motivated by her gender and prior engagement in protected EEO activities. Id. ¶¶ 5-6. The instant case arises from settlement proceedings which followed plaintiff’s 2007 EEO complaint. See Am. Compl. In those settlement negotiations, defendant was represented by Will Levy, then-Chief of Security and the person with settlement authority in relation to plaintiff’s EEO complaint. Id. ¶ 8. In February 2008, the parties entered into a settlement agreement in an attempt to resolve the 2007 EEO complaint (the “February Agreement”). Def. Mot., SOF ¶ 8. Plaintiff believes that defendant entered into the February Agreement in good faith. Pl. Opp., SOF ¶ 14.
The February Agreement detailed plaintiff to a Security Specialist, Adjudicator position at BEP. Def. Mot., SOF ¶ 9. This was plaintiff’s first detail to a Security Adjudicator position. Id. ¶ 12. While plaintiff had received prior details at BEP, those details had duties that differed from the duties of a Security Adjudicator. Id. ¶¶ 12-13. Accordingly, the February Agreement required defendant to provide plaintiff with basic training for the Security Adjudicator position. Def. Mot., Ex. D ¶ 1(b).
Prior to plaintiff’s detail to the Security Adjudicator position, she served as a BEP police officer at the TR-8 grade level. Am. Compl. ¶ 6. The Security Adjudicator position was a civilian government employee position that fell under the GS pay scale. See Def. Mot., Ex. D. At the time of the February Agreement, there was a “mismatch” between the TR and GS pay scales; a 1990 BEP policy required TR-8 employees like plaintiff to transfer to the GS-7 level, a level providing a substantially decreased salary from the TR-8 level. Def. Mot., Ex. V; Def. Mot., SOF ¶ 53. Accordingly, the February Agreement provided that plaintiff would continue to receive her pay at the TR-8 level while on Security Adjudicator detail. Def. Mot., SOF ¶ 9; Def. Mot., Ex. D, ¶ 1(a). The Agreement further stated:
In the future, when Chief Levy is able to get the TR position scales to meet GS position scales, Ms. Lawrence will accept the matching grade level for her current pay scale. It will be up to Ms. Lawrence, from that point forward, to meet the performance requirements of the job in order to take advantage of future openings for advancement in the Department. Future potential grade advances will be competed.
Def. Mot., Ex. D, ¶ 1(c); Def. Mot., SOF ¶ 11. The February Agreement, however, did not specify the GS pay grade and step plaintiff would receive when the TR and GS pay scales were brought into alignment. See Def. Mot., Ex. D, ¶ 1(c).
In June 2008, following the execution of the February Agreement, Chief Levy undertook ultimately unsuccessful efforts to align the TR and GS pay scales. Specifically, he wrote a memorandum to the manager of Human Resources, Karen Bickle, which was copied to the Associate Director of Management, Scott Wilson. Def. Mot., Ex. V at 3-4. Chief Levy’s memorandum detailed his concerns with the unfairness imposed upon a BEP employee who transferred from a TR law enforcement position into a civilian GS position under the 1990 policy. Id. at 5.
Despite Chief Levy’s efforts, the non-alignment between the TR and GS pay scales was not changed in 2008. See Def. Mot., SOF ¶¶ 14-15. It was not until December 2012 (after Chief Levy was promoted to Associate Director of Management) that BEP was able to obtain more flexibility in paying law enforcement employees when they transferred to a civilian position on the GS scale. Id. ¶ 15. Even under the amended policy, however, a TR-8 law enforcement employee like plaintiff seeking transfer into a civilian position would be transferred into a GS-7 position, which, absent pay retention, would not compensate the transferee at the same rate he or she received as a TR-8. Id.
In 2008, plaintiff requested that she be permanently transferred from her police officer position to the Security Specialist, Adjudicator position. Id. ¶ 18. Chief Levy requested that BEP’s human resources office do so and provided the department a copy of the February Agreement. See id. ¶ 19. However, the human resources department refused to process the transfer under the February Agreement. Id. ¶ 20.
In October 2008, to effectuate the plaintiff’s permanent transfer into the Security Adjudicator position, the parties entered into a second settlement agreement (the “October Agreement”). Id. ¶¶ 21, 28. The parties discussed the terms of the agreement over a period of months. Id. ¶ 21. Plaintiff had several meetings with BEP representatives in which she negotiated the terms of the Agreement. Id. ¶ 23. BEP informed plaintiff that if she chose not to sign the October Agreement, she could re-enter the EEO process and that the terms of the February Agreement would be considered met in full. Id. ¶ 27.
Plaintiff retained counsel to assist her during the negotiations over the October Agreement. Id. ¶ 22. The October Agreement allowed plaintiff twenty-one days to consider its terms and provided a seven-day revocation period. Id. ¶ 36; Def. Mot, Ex. A ¶ 10. The October Agreement nullified and superseded the February Agreement, providing, in relevant part:
The parties entered into an initial settlement agreement (“original Agreement”) on February 25, 2008. By signing this agreement, the parties agree to nullify the original agreement, and implement this amended agreement, and implement ...