United States District Court, District of Columbia
E. BOASBERG United States District Judge.
Dale Orlowske, who worked for the Department of Health and
Human Services, brought this suit claiming a fourteen-day
suspension he received constituted retaliation under Title
VII. Yes, that's right: this federal case concerns
nothing more than two weeks without pay. In now seeking
summary judgment before even filing its Answer, HHS asserts
that it is undisputed that the agency suspended Orlowske
because he forged parking-permission slips for a contractor,
not in retaliation for an age-discrimination complaint. Thin
as Plaintiff's case appears, since this summary-judgment
Motion is nonetheless premature, the Court will deny it.
facts relevant to this Motion are straightforward; where
there is conflict, the Court credits Plaintiff's version
as he is the nonmovant. In addition, though the Complaint
itself is not evidence, it will be cited for some background
2013, Orlowske joined HHS as a GS-14 Senior Intelligence
Operations Specialist. See ECF No. 1 (Complaint),
¶¶ 1, 9. When his supervisor, Ricky Hill, left a
year later, Orlowske applied for his GS-15 position.
Id. ¶¶ 12-13; see ECF No. 8-1
(Defendant's Statement of Undisputed Facts). But HHS
instead gave the nod to another man, Daniel Chapple, nearly
two decades Orlowske's junior. Id. Believing
this unjust, on October 14, 2014, Orlowske filed a complaint
with HHS, alleging that he had been discriminated against in
this selection process because of his age. See ECF
No. 8, Exh. 2 (EEO Complaint).
the same time, Chapple issued performance plans for his new
subordinates. See ECF No. 8, Exh. 8 (Affidavit of
Daniel Chapple) at 7-8. Miffed again, Orlowske told Chapple
that he thought his plan was designed to punish him for the
complaint. See DSUF, ¶ 6. Because the complaint
did not allege any wrongdoing on Chapple's part, however,
this was the first that he had heard of it. Id. A
month later, the two had a further spat over Orlowske's
use of unscheduled leave in inclement weather. See
Compl., ¶¶ 22-24.
in December 2014, aperiodic facilities audit showed that
Orlowske had forged parking-pass forms for a contractor,
Ronald Nesbitt, five times. See Chapple Aff. at 5.
When the auditor alerted Chapple to this, he sought advice
from Human Resources on an appropriate sanction. See
ECF No. 8, Exh. 18 (Affidavit of Catherine Sanders) at 2-3.
That department instructed him that anything from a reprimand
to a fourteen-day suspension would be justified. Id.
at 3. Chapple, accordingly, informed Orlowske on December 23
that he was proposing a fourteen-day suspension without pay
due to the severity and frequency of the parking-pass
violations. See ECF No. 8, Exh. 13 (Memorandum from
Chapple to Orlowske). Chapple's supervisor, Kory Whalen,
later upheld the suspension. See ECF No. 8, Exh. 19
(Affidavit of Kory Whalen) at 4.
exhausting his administrative remedies, Orlowske filed this
action under Title VII, asserting that the suspension was
retaliation for his earlier complaint. See Compl.,
¶¶5-6. Before even answering, HHS immediately moved
for summary judgment on the grounds that Orlowske had failed
to make out a.prima facie case and, alternatively,
that he could not rebut the agency's legitimate reason
for imposing the suspension - i.e., the parking
shenanigans. See ECF No. 8 (Motion for Summary
Judgment) at 9-11. In opposition, Orlowske largely concedes
that he has not yet presented evidence to show that HHS's
proffered reason was actually a pretext for retaliation, but
he further asserts that he can correct this deficiency
through discovery. See ECF No. 11 (Response) at 2-3.
More specifically, he relies on Federal Rule of Civil
Procedure 56(d) to argue that the Motion is premature.
See ECF No. 11-1 (Rule 56(d) Affidavit).
judgment may be granted if "the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986); Holcomb v.
Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is
"material" if it is capable of affecting the
substantive outcome of the litigation. Holcomb, 433
F.3d at 895; Liberty Lobby, Inc., 477 U.S. at 248. A
dispute is "genuine" if the "evidence is such
that a reasonable jury could return a verdict for the
nonmoving party." Liberty Lobby, Inc., 477 U.S.
party seeking summary judgment "bears the heavy burden
of establishing that the merits of his case are so clear that
expedited action is justified." Taxpayers Watchdog,
Inc., v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987).
When a motion for summary judgment is under consideration,
"the evidence of the non-movant is to be believed, and
all justifiable inferences are to be drawn in his
favor." Liberty Lobby, Inc., 477 U.S. at 255;
see also Mastro v. PEPCO, 447 F.3d 843, 850 (D.C.
Cir. 2006); Aka v. Wash. Hosp. Ctr., 156 F.3d 1284,
1288 (D.C. Cir. 1998) (en banc). The nonmoving
party's opposition, however, must consist of more than
mere unsupported allegations or denials and must be supported
by affidavits, declarations, or other competent evidence,
setting forth specific facts showing that there is a genuine
issue for trial. See Fed.R.Civ.P. 56(e); Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986).
judgment is premature, though, unless the parties have
"had a full opportunity to conduct discovery."
Liberty Lobby, 477 U.S. at 257; see also
Fed.R.Civ.P. 56(d) ("If a nonmovant shows by affidavit
or declaration that, for specified reasons, it cannot present
facts essential to justify its opposition, the court may .. .
allow time to obtain affidavits or declarations or to take
discovery."). A request by the nonmoving party for
additional time to conduct discovery should thus be granted
"almost as a matter of course unless the non-moving
party has not diligently pursued discovery of the
evidence." Berkeley v. Home Ins. Co., 68 F.3d
1409, 1414 (D.C. Cir. 1995) (internal quotation and citation
omitted). To get this relief, the nonmoving party need only
submit an affidavit, under Rule 56(d), which "state[s]
with sufficient particularity . . . why discovery [is]
necessary." Ikossi v. Dep't of Navy, 516
F.3d 1037, 1045 (D.C. Cir. 2008) (internal quotation and
citation omitted). This affidavit must "outline the
particular facts he intends to discover and describe why
those facts are necessary to the litigation[, as well as] ..
. explain why he could not produce the facts in opposition to
the motion." Converting v. DOJ, 684 F.3d 93,
99-100 (D.C. Cir. 2012) (internal quotations and citations
Court must decide whether to terminate this case now or plow
ahead to discovery. Unlike the Nationals' chance of
making the playoffs this year, it's a close call.
Plaintiff largely concedes that he has not produced evidence
to show that Chapple's true reason for suspending him was
to retaliate for his complaint, rather than to censure his
parking transgressions. See ECF No. 11 (Response) at
2-4. This showing is essential to the survival of his claim.
See Weber v. Battista, 494 F.3d 179, 186 (D.C. Cir.
2007) (holding, under Title VII, a plaintiff alleging
retaliation must show that government's legitimate,
non-discriminatory reason for an employment action is false
and that retaliation was real reason). Orlowske nevertheless
asks the Court, pursuant to Rule 56(d), to stay the hatchet
while he pursues this evidence ...