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Gordon v. Duke

United States District Court, District of Columbia

August 24, 2017

JACQUELINE GORDON, Plaintiff,
v.
ELAINE DUKE, Acting Secretary, U.S. DEPARTMENT OF HOMELAND SECURITY, Defendant.

          MEMORANDUM OPINION

          JAMES E. BOASBERG, UNITED STATES DISTRICT JUDGE

         Over the past decade, pro se Plaintiff Jacqueline Gordon, an employee of the Federal Emergency Management Agency, has filed a series of unsuccessful discrimination complaints with the Equal Employment Opportunity Commission. Plaintiff then brought this suit, alleging principally that her EEOC complaints triggered numerous incidents of retaliatory conduct, including behavior among her co-workers that created a hostile work environment. Defendant now moves to dismiss the Complaint or, alternatively, for summary judgment. The Court will grant Defendant's Motion to Dismiss as to several counts; as to the remainder, it concludes that the undisputed facts also favor judgment for the Government.

         I. Background

         Gordon, a black woman over 40 years of age, was at all relevant times employed by FEMA, a component of the Department of Homeland Security. See Def. MSJ, Exh. 3 (Affidavit of Jacqueline Gordon) at 1, 8. In this suit, she reprises a long-running dispute with her employer. Before turning to the facts at issue in this Complaint, the Court will recount the somewhat-involved procedural history of the case.

         A. Procedural History

         As the reader will readily see, Gordon's disenchantment with FEMA is hardly of recent vintage. In September 2004, she filed a complaint with the EEOC alleging discrimination based on gender, race, color, and age, as well as retaliation for prior protected activity. Gordon v. Beers, 972 F.Supp.2d 28, 31 (D.D.C. 2013). The EEOC found in favor of the Agency. Id. Plaintiff believed that her EEO complaint had triggered retaliatory conduct, as well as treatment by her colleagues and supervisors that constituted a hostile work environment. In response, she filed a second complaint before the EEOC in January of 2007. Id. This later complaint, she alleged, resulted in an increasingly hostile work environment. Id. Once again, the EEOC resolved the matter in favor of DHS, and Plaintiff then brought suit (Civil Case No. 09-2211) against the Agency in November 2009. Id. at 32-33.

         In May 2011, this Court dismissed several counts of retaliation for which Plaintiff had failed to exhaust her administrative remedies. Gordon v. Napolitano, 786 F.Supp.2d 82, 84-85 (D.D.C. 2011). After allowing discovery on the remaining claims, the Court granted summary judgment for DHS in September 2013, finding that Plaintiff had failed to make out a prima facie case of retaliation and that she had cited no record evidence supporting a hostile work environment. Beers, 972 F.Supp.2d at 31.

         Undeterred, Gordon filed a third EEO complaint in 2012. See Def. MSJ, Exh. 5 (2012 EEO Compl.). This one fared no better than the first two, as the EEOC deemed her complaint unfounded. Id., Exh. 4 (Final Agency Decision) at 8. Plaintiff then filed this second pro se suit on May 29, 2014, making essentially the same claims based on a new set of workplace grievances. DHS once again moved to dismiss or for summary judgment on August 22, 2014, see ECF No. 8, and the Court ordered Plaintiff to respond by September 12, 2014, warning that it would otherwise grant the Motion and enter judgment against her. See ECF No. 9. Even after the Court granted Gordon an extension until October 14, 2014, see Minute Order of September 12, 2014, she declined to respond. Pursuant to Local Rule 7(b), as it read at the time, the Court then granted DHS's Motion as conceded on October 21, 2014. See Minute Order. Nearly three months later, Plaintiff moved for reconsideration. See ECF No. 13. In her 160-page submission, she gave no basis for her motion - e.g., excusable neglect or new evidence - nor did she include briefing responsive to DHS's dispositive Motion. Instead, she attached many exhibits, a statement of material facts, and bullet-point pages that accused the Court of corruption, misconduct, and tampering with mail. The Court thus denied reconsideration, and Plaintiff appealed.

         In June 2017, the D.C. Circuit, apparently treating the appeal as relating to summary judgment, remanded the case for further proceedings in light of an intervening case, Winston & Strawn, LLP v. McLean, 843 F.3d 503 (D.C. Cir. 2016). See Gordon v. Kelly, No. 15-5084 (D.C. Cir. June 2013, 2017) (per curiam). Per Winston, a district court cannot treat motions for summary judgment as conceded for want of opposition. Id. at 508. Rather, the court must “satisf[y] itself that the record and any undisputed facts justify granting summary judgment.” Id. at 507. The D.C. Circuit expressly reaffirmed, however, that a district court may “consider [a] fact undisputed if it has not been properly supported or addressed as required by Rule 56(c).” Id. at 507 (citing Fed.R.Civ.P. 56(e)(2)). Rule 56(c), in turn, requires that any non-moving party support disputed facts by citing particular parts of the record, such as depositions, documents, or affidavits, or otherwise show that materials cited establish a genuine dispute of fact.

         At the time that this Court initially considered Defendant's Motion for Summary Judgment, Plaintiff fell far short of Rule 56(c)'s requirements. She had made no effort to submit a counterstatement of material facts, as required by Local Rule 7(h)(1). Nor had she supported the allegations in her Complaint with record citations or otherwise disputed Defendant's factual assertions. Even after receiving a month-long extension to address DHS's Motion, Plaintiff wholly failed to respond. Although Gordon later submitted a counterstatement of facts, she did so nearly three months after the Court had granted summary judgment in favor of DHS, as part of her Motion for Reconsideration.

         After the D.C. Circuit remanded the case, this Court asked the parties for supplemental briefing on whether to treat Defendant's factual assertions as undisputed. See Minute Order of July 7, 2017. In other words, the Court inquired whether it should rule on the Motion for Summary Judgment as the record stood in October 2014 or whether it was required to look at subsequent filings. Plaintiff responded with a four-page Motion for Relief, which rehashed conclusory allegations from the Complaint. See ECF No. 23. She offered no argument as to whether this Court should treat Defendant's facts as undisputed nor any attempt to reopen the record.

         Although Winston precludes the Court from treating Defendant's Motion as conceded, the decision did nothing to upset a district court's settled authority to treat facts as undisputed, even when a party belatedly challenges them. See 843 F.3d at 507 (“[A] court must be able to evaluate an inadequately supported assertion of material fact and deem it not materially disputed, such that summary judgment is warranted in whole or in part.”) (quoting Grimes v. Dist. Columbia, 794 F.3d 83, 92 (D.C. Cir. 2015)). Rather, the D.C. Circuit has long held that a district court may exercise its discretion to “implement[] a scheduling order at the beginning of [a case] and insist[] on its reasonable observance during litigation.” Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 152 (D.C. Cir. 1996). In Jackson, for instance, the district court denied a party's motion to supplement his statement of material facts in dispute, which consisted of “five one-sentence entries” and was “devoid of citations to the record.” Id. at 148-49. Instead, the district court deemed the defendant's recitation of the facts “uncontroverted” and thus granted summary judgment in its favor. Id. at 149. The D.C. Circuit affirmed, citing the court's “prerogative to manage its docket, and its discretion to determine how best to accomplish this goal.” Id. at 151.

         At the time this Court granted summary judgment, Plaintiff had similarly failed to adhere to the Court's scheduling order or dispute Defendant's facts. That the D.C. Circuit has since remanded the case so that this Court can apply the correct legal standard does nothing to change the facts as they existed at that time. “On remand, the decision whether to hear new evidence is within the discretion of the trial court.” Carter Jones Lumber Co. v. LTV Steel Co., 237 F.3d 745, 751 (6th Cir. 2001); see also Modern Elec., Inc. v. Ideal Electronic Sec. Co., Inc., 145 F.3d 395, 397 (D.C. Cir. 1998) (holding district court did not abuse its discretion by denying request to reopen the record); Otero v. Mesa Cty. Valley Sch. Dist. No. 51, 628 F.2d 1271 (10th Cir. 1980) (holding district court did not err by refusing to reopen the record when appellate court “did not remand with directions to reopen the case”). The Court therefore considers the record as it stood in October 2014 and treats Defendant's statement of facts as undisputed for purposes of summary judgment. See Federal Rule of Civil Procedure 56(e)(2).

         B. Factual History

         This case picks up where Gordon's first suit left off. She again alleges that her supervisors and co-workers retaliated against her for filing her 2004 and 2007 EEO complaints. See Compl., ¶ 4. Principally, Plaintiff claims that her supervisors denied her a merited promotion. Id., ¶ 5. In DHS, as with most government agencies, an employee's pay is pegged to the “General Schedule” or GS Scale, which classifies all positions and the appropriate pay. See Def. MSJ, Exh. 6 (Affidavit of Ryan Batten), ¶ 33. At all times relevant, Plaintiff was an employee at the GS-5 level, meaning she provided clerical and technical work in support of management. See Compl., Exh. 2 at 12 (“Request for Upgrade of Program Support Assistant Jacqueline Gordon”). In May 2011, Gordon requested a promotion to the GS-6 scale. Id. (At times, the record indicates she also sought a promotion to GS-9, a classification reserved for program analysts who substantively evaluate the effectiveness of government programs or policies. See Batten Aff., ¶ 42.)

         Plaintiff sought reclassification by way of an “accretion of duty” promotion. Id. An employee may receive such a promotion when her position should be “reclassified at a higher grade, ” such as when “duties and responsibilities of the position have increased over a period of time.” Wiley v. Glassman, 511 F.3d 151, 156 (D.C. Cir. 2007) (internal quotation marks omitted). To that end, Gordon requested a “desk audit, ” which “allows an employee to have her duties independently reviewed by a human resource specialist. If the audit reveals her ...


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