United States District Court, District of Columbia
E. BOASBERG, UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.)
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 ...