United States District Court, District of Columbia
P. MEHTA, UNITED STATES DISTRICT JUDGE
the court is Defendant Board of Trustees of the University of
the District of Columbia's unopposed Motion for Summary
Judgment. See Def.'s Mot. for Summ. J., ECF No.
29 [hereinafter Def.'s Mot.]. Defendant moves to dismiss
Plaintiff Seabern Hill's remaining claims under Section
1983, 42 U.S.C. § 1983, and the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 623. As
the parties are familiar with the facts and procedural
history of this case, the court recites only what is
necessary to rule on Defendant's Motion.
court reaches Defendant's Motion after providing
Plaintiff ample opportunity to respond. Defendant filed its
Motion on November 17, 2016. See Def.'s Mot.
Plaintiff's Opposition was originally due on December 1,
2016. See LCvR 7(b). Plaintiff repeatedly sought
extensions of time to file his Opposition, beginning on
December 6, 2016, to which Defendant consented until late
January 2017. Compare Pl.'s Consent Mot. for
Extension of Time, ECF No. 30, Pl.'s Consent Mot. for
Extension of Time, ECF No. 32, and Pl.'s Consent
Mot. for Extension of Time, ECF No. 34, with
Pl.'s Mot. for Extension of Time, ECF No. 35,
and Def.'s Mem. in Opp'n to Pl.'s Mot.
for Extension of Time, ECF No. 36. The court entered an Order
on January 27, 2017, denying as moot Plaintiff's most
recent Motion for Extension of Time, explaining that the date
by which Plaintiff stated he would file his Opposition had
passed. See Minute Order (dated Jan. 27, 2017). To
date, Plaintiff still has not filed his Opposition.
Accordingly, the court now rules on Defendant's Motion.
judgment is appropriate “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). The court may not treat a plaintiff's
failure to respond to a defendant's motion for summary
judgment as a concession of the motion. Winston & Strawn,
LLP v. McLean, 843 F.3d 503, 508 (D.C. Cir. 2016);
Fed.R.Civ.P. 56(e) advisory committee's 2010 note.
Rather, “the [d]istrict [c]ourt must always determine
for itself whether the record and any undisputed material
facts justify granting summary judgment.” Winston &
Strawn, LLP, 843 F.3d at 505 (internal quotation marks
omitted). The court may, however, treat any unaddressed
factual statement in the defendant's motion as
undisputed. See Id. at 507; LCvR 7(h)(1) (“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.”).
thorough consideration of the record, the court grants
Defendant's Motion for Summary Judgment as to each
remaining claim in the Amended Complaint. See Mem.
Op. & Order, ECF No. 10 (allowing Plaintiff to proceed with
his claims of age discrimination and violation of his right
to free speech, but dismissing his gender discrimination
with respect to Plaintiff's claim under the ADEA, summary
judgment is appropriate because Plaintiff cannot make out a
claim that Defendant discriminated against him based on his
age when Defendant chose to eliminate Plaintiff's
employment position. Defendant has offered a legitimate,
non-discriminatory reason for Plaintiff's termination-the
elimination of Plaintiff's position due to a reduction in
force arising from budgetary constraints-and the record
contains no evidence that Plaintiff was disadvantaged in
favor of a younger person when his employment was terminated;
no younger person was hired to replace him. See
Def.'s Mot. at 18-21. Nor is there any record evidence
that Defendant implemented the reduction in force in a manner
that discriminated against older employees. See Id.
In short, Plaintiff has offered no evidence that
Defendant's citation to budgetary constraints is pretext
for discrimination. As a matter of law, then, Plaintiff is
unable to prove that he was discriminated against on account
of his age. See Johnson v. Interstate Mgmt. Co., No.
14-7164, 2017 WL 836090, at *5 (D.C. Cir. 2017).
with respect to Plaintiff's Section 1983 claim, summary
judgment is appropriate because the undisputed facts reflect
that Plaintiff cannot make out a claim that Defendant
violated his First Amendment rights by abolishing his
position. Defendant's Motion states, and Plaintiff has
not disputed, that the scope of Plaintiff's employment
encompassed alerting his supervisors to any unlawful access
of student records, thus rendering the speech at issue in
this matter statements Plaintiff made pursuant to his
official duties as Records Officer. See Def.'s
Mot. at 24-25. In other words, Plaintiff's speech was not
the speech of a “citizen.” In addition, the
undisputed facts reflect that Defendant terminated
Plaintiff's employment because it needed to reduce the
size of its workforce due to budgetary concerns, not to
punish Plaintiff for his speech. See Id. at 30-31.
As a matter of law, then, Plaintiff cannot prove Defendant
violated his First Amendment rights by taking an adverse
employment action against him in retaliation for
constitutionally protected activity-Plaintiff's speech
was not protected activity and, even if protected, that
speech did not motivate Defendant's decision to eliminate
Plaintiff's position. See Coleman v. District of
Columbia, 893 F.Supp.2d 84, 96 (D.D.C. 2012),
aff'd in part and rev'd in part on other
grounds, 794F.3d49(D.C. Cir. 2015).
all the undisputed facts on the record, the court concludes
that Defendant is entitled to judgment in its favor as a
matter of law. See Fed. R. Civ. P. 56. Accordingly,