United States District Court, District of Columbia
VERONICA W. OGUNSULA, Plaintiff,
STAFFING NOW, INC., Defendant.
S. CHUTKAN, UNITED STATES DISTRICT JUDGE.
employment discrimination action filed pro se,
Plaintiff alleges that Defendant, a temporary employment
agency, discriminated against her because of her race,
national origin and age. (Am. Compl., ECF No. 17). Following
a lengthy time for discovery, Defendant has moved for summary
judgment pursuant to Federal Rule of Civil Procedure 56 (ECF
No. 48), and Plaintiff has moved for additional discovery
pursuant to Rule 56(d) (ECF No. 56). For the reasons
explained below, the Court will GRANT Defendant's motion
and DENY Plaintiff's motion.
is an African American woman who is at least 40 years old.
Her surname is Nigerian. (Am. Compl. ¶ 4). Plaintiff
alleges the following facts: In July 2014, she contacted
Defendant “seeking temporary staffing and long-term
staffing opportunities in the Washington, D.C. metropolitan
area.” (Id. ¶ 5). In early August 2014,
Plaintiff spoke by telephone with Staffing Now Senior Manager
Chris Van Landingham regarding temporary assignments.
(Id. ¶¶ 7-8; Dec. 5, 2016 Ogunsala Dep. at
88, ECF No. 48-2). Van Landingham “seemed impressed
with [Plaintiff's] skills and asked her to send her
resume to him via email.” (Am. Comp. ¶ 8). Over
the next few weeks, Plaintiff called the agency periodically
but received no response from Van Landingham. In mid-August,
an agency receptionist referred Plaintiff to “another
recruiter, ” Niya Leek, to whom Plaintiff sent her
resume. (Id. ¶ 9). Plaintiff “followed up
with at least two calls to Ms. Leek, ” but did not
receive a response. (Id.).
September 2014, Plaintiff “called again to follow up on
her resume and staffing opportunities and was referred to Ms.
Ekundayo, ” to whom Plaintiff forwarded her resume.
(Id. ¶ 10). Plaintiff passed “office
automation tests” and interviewed with Ekundayo on
September 15, 2014. During the interview, Plaintiff provided
names of references, but when asked about a supervisor's
reference, she responded that “she had not been in a
supervisor employee relationship in several years but would
provide . . . the name of a supervisor from when she worked
at AT&T.” (Id. ¶ 12). Before
Plaintiff left the building, she completed “several
employment forms[, ] . . . including the I-9 form, ”
and was asked to resubmit her resume as a Microsoft Word
document. (Id. ¶ 13). Plaintiff's
“final discussions with Staffing Now personnel [were]
regarding payroll.” (Id. ¶ 14).
Plaintiff's subsequent calls to Ekundayo and Van
Landingham between September and November of 2014 went
unanswered, and she received no job assignments.
(Id. ¶¶ 16-17).
alleges that she has undergraduate and graduate degrees in
Business Administration and more than twenty years of
experience in “administrative, administration, and
office skills.” (Id. ¶ 5). Following her
interview with Ekundayo, Plaintiff “was given the
impression that she had great skills and was hired and that
she would be receiving calls for temporary staffing
opportunities”; she “believes that she had an
oral agreement regarding being hired as of her final
interview.” (Am. Compl. ¶¶ 17, 18).
December 2014, Plaintiff filed a charge with the EEOC,
alleging discrimination on the basis of age, race and
national origin. (Charge of Discrimination, ECF No. 1 at 6).
The EEOC investigated Plaintiff's claims and informed her
that it was “unable to conclude that the information
obtained establishes violations of the statutes” and
that she had a right to file a lawsuit. (Undated Dismissal
and Notice of Rights, ECF No. 1 at 5). Plaintiff alleges that
she “did not receive a charge letter in the mail”
but instead learned about the decision on January 23, 2015,
when she visited the EEOC to check the status of the
investigation. (Am. Compl. ¶ 20). Plaintiff timely filed
this civil action on April 13, 2015.
November 18, 2015, the court issued a scheduling order, which
closed fact discovery on May 31, 2016. On August 1, 2016, the
court granted the parties' joint motion and extended the
discovery deadline to October 14, 2016, and consequently
extended the deadlines for filing and briefing dispositive
motions. Defendant timely filed its motion for summary
judgment on December 28, 2016; Plaintiff missed her January
18, 2017 deadline to file an opposition. After repeated
attempts by Plaintiff to extend deadlines and to reopen
discovery, the court finally denied her motion to reopen
discovery and extended the deadline to June 16, 2017, for her
opposition to Defendant's summary judgment motion. The
court left the door open for Plaintiff to file a Rule 56(d)
motion if she could make the requisite showing. (See
May 11, 2017 Order, ECF No. 55).
judgment is appropriate where there is no disputed genuine
issue of material fact, and the movant is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex
Corp. v. Catrett, 477 U.S. 317, 325 (1986). A dispute is
“genuine” only “if the evidence is such
that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). In determining whether a
genuine issue of material fact exists, the court must view
all facts in the light most favorable to the non-moving
party. See Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986).
moving party bears the “initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of the ‘pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits . . .' which it
believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp., 477 U.S. at
323. The nonmoving party, in response, must “go beyond
the pleadings and by [its] own affidavits, or by the
‘depositions, answers to interrogatories, and
admissions on file, ' designate ‘specific facts
showing that there is a genuine issue for trial.'”
Id. at 324. “If the evidence is merely
colorable, or is not significantly probative, summary
judgment may be granted.” Liberty Lobby, 477
U.S. at 249-50 (citations omitted). “[A]t the summary
judgment stage the judge's function is not . . . to weigh
the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.”
Id. at 249.
response to Defendant's motion, Plaintiff has filed a
Rule 56(d) motion. Federal Rule of Civil Procedure 56(d)
provides that “[i]f a non-movant shows by affidavit or
declaration that, for specified reasons, it cannot present
facts essential to justify its opposition, ” a court is
empowered to grant the motion and allow further discovery.
Fed.R.Civ.P. 56(d). A Rule 56(d) affidavit must: (1) outline
the facts the non-movant “intends to discover and
describe why those facts are necessary to the litigation,
” (2) “explain ‘why [the non-movant] could
not produce the facts in opposition to the motion for summary
judgment, ' ” and (3) “show the information
is in fact discoverable.” U.S. ex rel. Folliard v.
Gov't Acquisitions, Inc., 764 F.3d 19, 26 (D.C. Cir.
2014) (citations omitted) (internal quotation marks omitted).
Plaintiff has not satisfied these criteria in her motion or
her sealed declaration (ECF No. 59). Rather, she (1) rehashes
arguments the court previously considered in denying her
motion to reopen discovery, (2) raises matters unrelated to
the issues at hand, and (3) argues generally against the
summary judgment motion, to which the court now turns.
mostly on Plaintiff's deposition testimony, Defendant
contends that Plaintiff cannot establish a prima
facie case of discrimination. (See Def.'s
Mem at 2-5, 7-11). The court agrees. Under Title VII of the
Civil Rights Act of 1964, an employer cannot “fail or
refuse to hire . . . any individual . . . because of such
individual's race, color, . . . or national
origin.” 42 U.S.C. § 2000e-2. Similarly, the Age
Discrimination in Employment Act (“ADEA”) makes
it unlawful for a private employer, such as Defendant,
“to fail or refuse to hire . . . any individual. . .
because of such individual's age.” 29 U.S.C. §
623(a)(1). The Supreme Court has interpreted ADEA's
language as requiring “a plaintiff [to] prove that age
was the ‘but-for' cause of the employer's
adverse decision.” Gross v. FBL Fin. Servs.,
Inc., 557 U.S. 167, 176 (2009); see Ford v.
Mabus, 629 F.3d 198, 205 (D.C. Cir. 2010) (confirming