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Toomer v. Mattis

United States District Court, District of Columbia

July 19, 2017

MIRLIN S. TOOMER, Plaintiff,
v.
JIM MATTIS,[1] in his official capacity as Secretary of Defense, Defendant.

          MEMORANDUM OPINION

          EMMET G. SULLIVAN, UNITED STATES DISTRICT JUDGE

         This case is before the Court on plaintiff Mirlin Toomer's objections to Magistrate Judge G. Michael Harvey's Report and Recommendation (“R & R”), issued on March 24, 2016. Magistrate Judge Harvey recommends that the Court grant defendant's motion for summary judgment and deny Ms. Toomer's motion for partial summary judgment, her motion for spoliation sanctions, and her motion for a hearing on spoliation of evidence. Upon consideration of the R & R, Ms. Toomer's objections, defendant's response to those objections, the above-referenced motions, the responses and replies thereto, the relevant law, and the entire record, this Court ADOPTS Magistrate Judge Harvey's R & R, GRANTS defendant's motion for summary judgment, and DENIES Ms. Toomer's motion for partial summary judgment, her motion for spoliation sanctions, and her motion for a hearing on spoliation of evidence.[2]

         I. Background

         A. Federal Rule of Civil Procedure 56(e) and Local Civil Rule 7(h)

         When a party moves for summary judgment, it must accompany its motion with a statement of material facts as to which it contends there is no genuine issue. LCvR 7(h)(1). That statement must reference the specific parts of the record relied on to support the assertions of fact in the statement. Id. In turn, the non-movant's opposition brief must be accompanied by a concise statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue. Id. That statement of genuine issues also must include specific references to the evidentiary record. Id. But if it “fails to properly address another party's assertion of fact . . . the court may . . . consider th[at] fact undisputed for purposes of the motion.” Fed.R.Civ.P. 56(e)(2). That is, a 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.” LCvR 7(h)(1).

         Magistrate Judge Harvey determined that Ms. Toomer's statement of genuine issues filed in response to the statement of material facts that accompanied defendant's motion for summary judgment was “replete with legal argument, argument regarding the inferences to be drawn from the facts, and assertions of other facts which [Ms. Toomer] apparently believes ought to be considered in connection with the asserted fact.” R & R, ECF No. 96 at 7 (citing Pl.'s Statement of Material Facts in Dispute (“Pl.'s Resp. SMF”), ECF No. 73 ¶¶ 7-8, 14, 16, 28, 31-33, 36, 39, 41, 43, 46, 48, 51, 55-56, 59-60, 62). Accordingly, Magistrate Judge Harvey concluded that many of the assertions of fact in defendant's statement of material facts were not adequately controverted and, as a result, were undisputed. Id. at 4, 7. Thus, for purposes of his summary judgment analysis, he drew “from facts submitted by defendant which went undisputed or were inadequately disputed by [Ms. Toomer], the undisputed facts submitted by [Ms. Toomer] in connection with her motions, as well as the factual record submitted to the Court.” Id. at 7. Where facts were properly disputed, he addressed those disputes as they arose in his analysis. Id. at 4.

         Ms. Toomer objects to Magistrate Judge Harvey's characterization of the statement of genuine issues that she filed in response to defendant's statement of material facts. Obj. to Magistrate's R & R (“Pl.'s Objs.”), ECF No. 99 at 5-10. This Court overrules that objection. The relevant rules make clear that, for purposes of summary judgment analysis, a court may deem undisputed assertions of fact in a movant's statement of material facts that are not properly “controverted.” LCvR 7(h)(1); see also Fed. R. Civ. P. 56(e)(2). An assertion of fact properly presented in a movant's statement of material facts is not “controverted” when a non-movant supplies additional facts and “factual context, ” see Pl.'s Objs., ECF No. 99 at 5, that do not actually dispute the movant's asserted fact. See Gibson v. Office of the Architect of the Capitol, No. 00-2424, 2002 WL 32713321, at *1 n.1 (D.D.C. Nov. 19, 2002) (“Plaintiff's Statement is almost completely unhelpful to the Court as its provisions rarely address the facts outlined in Defendant's Statement, instead describing in lengthy detail the ‘contextual and structural background' surrounding Defendant's stated facts.”); Learnard v. Inhabitants of the Town of Van Buren, 182 F.Supp.2d 115, 119-20 (D. Me. 2002) (disregarding a plaintiff's responsive factual statements in part because many of those statements “do not actually controvert the Defendants' facts that they purport to address”); cf. Graves v. District of Columbia, 777 F.Supp.2d 109, 111-12 (D.D.C. 2011) (“Where the opposing party has additional facts that are not directly relevant to its response, it must identify such facts in consecutively numbered paragraphs at the end of its responsive statement of facts.”). This Court's review of defendant's statement of material facts and Ms. Toomer's statement filed in response reveals a consistent pattern of Ms. Toomer failing to controvert defendant's asserted facts and, instead, providing additional, non-responsive facts. Compare Def.'s Statement of Material Facts Not in Dispute (“Def.'s SMF”), ECF No. 68 ¶¶ 7-8, 14, 17, 19, 31-33, 36, 39, 43, 46-49, 51, 55-56, 60, 62, with Pl.'s Resp. SMF, ECF No. 73 ¶¶ 7-8, 14, 17, 19, 31-33, 36, 39, 43, 46-49, 51, 55-56, 60, 62. Accordingly, Magistrate Judge Harvey did not err in his determination of disputed and undisputed facts for purposes of the summary judgment analysis. He properly deemed undisputed those facts which the parties explicitly stated were not in dispute and those facts which the parties failed to adequately controvert, and he appropriately filled in factual gaps by scrutinizing the record submitted to the Court. See R & R, ECF No. 96 at 7.

         B. Relevant Facts

         Having found no error in Magistrate Judge Harvey's determination of the undisputed facts for purposes of summary judgment analysis and overruling Ms. Toomer's objection otherwise, this Court fully adopts Magistrate Judge Harvey's thorough recitation of the facts in his R & R and incorporates that recitation by reference here. See Id. at 7-21.

         II. Standards of Review

         A. Review of Objections to Magistrate Judge's Report and Recommendation

         “[A] district court may review only those issues that the parties have raised in their objections to the Magistrate Judge's report . . . .” Taylor v. District of Columbia, 205 F.Supp.3d 75, 79 (D.D.C. 2016) (internal quotation marks omitted). When specific written objections have been filed with respect to a report and recommendation concerning a dispositive motion, the district court's review of the portions of the report and recommendation implicated by those objections is de novo. Fed.R.Civ.P. 72(b)(2), (3). But “[w]hen a party objects . . . to a magistrate judge's determination with respect to a non-dispositive matter, the Court must modify or set aside all or part of the magistrate judge's order if it is ‘clearly erroneous' or ‘contrary to law.'” Intex Recreation Corp. v. Team Worldwide Corp., 42 F.Supp.3d 80, 86 (D.D.C. 2013) (quoting Fed.R.Civ.P. 72(a)).

         B. Summary Judgment

         Pursuant to Federal Rule of Civil Procedure 56, summary judgment should 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); Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). The moving party must identify “those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat summary judgment, the nonmoving party must demonstrate that there is a genuine issue of material fact. Id. at 324. A material fact is one that is capable of affecting the outcome of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine dispute is one where “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. Further, in the summary judgment analysis “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255.

         III. Analysis

         In her complaint, Ms. Toomer asserts four distinct claims: (1) racially hostile work environment; (2) retaliation; (3) racial discrimination; and (4) age discrimination. Compl., ECF No. 1 ¶¶ 48-76. Defendant filed a motion for summary judgment as to all of those claims, Def.'s Mot. for Summ. J. (“Def.'s Mot.”), ECF No. 68, and Ms. Toomer filed a motion for partial summary judgment as to the racially hostile work environment claim. Pl.'s Mot. for Partial Summ. J. and for Spoliation Sanctions (“Pl.'s Mot.”), ECF No. 70. Ms. Toomer also moved for spoliation sanctions, id., and later filed a motion for a hearing on the earlier-filed motion for spoliation sanctions. Pl.'s Mot. for Expedited Hr'g on Spoliation of Evid. (“Pl.'s Mot. for Hr'g”), ECF No. 92. Magistrate Judge Harvey's R & R recommends that this Court grant defendant's motion for summary judgment and deny Ms. Toomer's motion for partial summary judgment, her motion for spoliation sanctions, and her motion for a hearing.

         In addition to her objection addressed above concerning the R & R's disentanglement of disputed from undisputed facts, Ms. Toomer has only objected to Magistrate Judge Harvey's R & R as it concerns her racially hostile work environment claim, Pl.'s Objs., ECF No. 99 at 10-20, 34-35, her retaliation claim, id. at 20-34, and her motion for spoliation sanctions. Id. at 36-41. The Court limits the analysis that follows to those objections, see Taylor, 205 F.Supp.3d at 79 (“[T]he district court may review only those issues that the parties have raised in their objections to the Magistrate Judge's report . . . .”) (internal quotation marks omitted), and, for the reasons articulated below, overrules them.

         A. Ms. Toomer's Objections Concerning Her Racially Hostile Work Environment Claim

         To prevail on a hostile work environment claim “a plaintiff must show that his employer subjected him to ‘discriminatory intimidation, ridicule, and insult' that is ‘sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'” Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). The relevant analysis has both a subjective and an objective component: The victim must subjectively perceive the environment to be abusive, and the complained about conduct must be so severe or pervasive that it objectively creates a hostile or abusive work environment. Harris, 510 U.S. at 21-22. “To determine whether a hostile work environment exists, the court looks to the totality of the circumstances, including the frequency of the discriminatory conduct, its severity, its offensiveness, and whether it interferes with an employee's work performance.” Baloch, 550 F.3d at 1201 (citing Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998)).

         Magistrate Judge Harvey concluded that none of Ms. Toomer's proffered facts, taken alone or in combination, suffices to make out a claim of a racially hostile work environment. R & R, ECF No. 96 at 29. Thus, Magistrate Judge Harvey concluded that the display of the action figure, supervisor Diane Stiger's comments to Ms. Toomer regarding the action figure, and certain disciplinary actions taken against Ms. Toomer do not sustain a claim of a racially hostile work environment. Id. Accordingly, Magistrate Judge Harvey recommends that this Court grant summary judgment to defendant as to Ms. Toomer's racially hostile work environment claim and deny Ms. Toomer's motion for partial summary judgment as to that claim.

         Ms. Toomer specifically objects to Magistrate Judge Harvey's hostile work environment analysis as it concerns the display of the action figure. She argues that however one might characterize the action figure at issue in this case-e.g., as a monkey, ape, monkey-ape, Bigfoot, etc.-that that action figure was a “black object with its hands held in the air” wrapped in and hanging by a rope that she saw “every time that she left [her cubicle] to use the bathroom or walked into her cubicle” sustains a hostile work environment claim. Pl.'s Objs., ECF No. 99 at 11-14. She contends that the photographic evidence in the record, which she confirmed shows how the action figure appeared to her from June 8 through June 23, 2010, see Dec. 2, 2013 Dep. of Mirlin Toomer (“Dec. 2, 2013 Toomer Dep.”), ECF No. 68-1 at 192:4-7, standing alone “raises a specter on its face of a hostile workplace environment.” Pl.'s Objs., ECF No. 99 at 14. She asserts that Magistrate Judge Harvey erred in his assessment that the action figure display was not threatening, “especially not in the way that an obvious noose-tied rope would be, ” R & R, ECF No. 96 at 39-40, because such an assessment suggests some “threshold standard” for determining “an African-American's perception” of when a lynching has been depicted. Pl.'s Objs., ECF No. 99 at 4, 12, 14. She further contends that Magistrate Judge Harvey engaged in semantic gymnastics to conclude that there was merely a racially benign “doll” wrapped in “cord” rather than a racially invidious “monkey-ape” wrapped in “rope, ” id. at 3-4, 13-14, 18, and she contends that Magistrate Judge Harvey erroneously concluded that it is undisputed that the action figure at issue is supposed to represent the mythical creature Bigfoot rather than a monkey or an ape. Id. at 2, 4. And, finally, Ms. Toomer contends that Magistrate Judge Harvey erred in his conclusion that there was a benign explanation for the presence of the action figure display in the workplace. Id. at 18-20.

         Ms. Toomer also specifically objects to Magistrate Judge Harvey's hostile work environment analysis as it concerns Ms. Stiger's alleged comments to Ms. Toomer in response to the latter's complaints to the former about the action figure display. Ms. Toomer contends that Ms. Stiger's alleged comments-especially her question to Ms. Toomer, “[D]o you think of yourself as a monkey?, ” Dec. 2, 2013 Toomer Dep., ECF No. 68- 1 at 147:17-25-sustains a hostile work environment claim. See Pl.'s Objs., ECF No. 99 at 15-16. She argues that Magistrate Judge Harvey erred in categorizing Ms. Stiger's comments as a non-actionable “stray remark” because those comments were “connected to an ongoing racially offensive event, ”-i.e., the action figure display. Id. Ms. Toomer contends that Ms. Stiger's comments were not merely insensitive, unresponsive, or indifferent, as Magistrate Judge Harvey characterized them, but rather were “a callous validation of an extremely offensive workplace action.” Id. at 17.

         The Court agrees with Magistrate Judge Harvey's analysis of Ms. Toomer's hostile work environment claim and therefore ...


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