Miller v. Rosenker

• Decision Date: 29 September 2008
• Docket Number: Civil Action No. 06-1071(GK).
• Citation: 578 F.Supp.2d 107
• Parties: Richard MILLER, Plaintiff, v. Mark V. ROSENKER, Chairman National Transportation Safety Board, Defendant.
• Court: U.S. District Court — District of Columbia

578 F.Supp.2d 107

Richard MILLER, Plaintiff, v. Mark V. ROSENKER, Chairman National Transportation Safety Board, Defendant.

Civil Action No. 06-1071(GK).

United States District Court, District of Columbia.

September 29, 2008.

Carl S. Nadler, David A. Young, Heller, Ehrman, White & McAuliffe, Washington, DC, for Plaintiff.

Brian P. Hudak, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM ORDER

GLADYS KESSLER, District Judge.

Plaintiff Richard Miller brings this action ("Miller II") against Defendant Mark V. Rosenker in his official capacity as Chairman of the National Transportation Safety Board ("NTSB") pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.¹

The present matter is before the Court on Defendant's Motion to Dismiss and/or for Summary Judgment pursuant to Fed. R.Civ.P. 12(b)(1), 12(b)(6), and/or 56(b) [Dkt. No. 7].

Upon consideration of the Motion, Opposition, Reply, and the entire record herein, and for the reasons set forth below, Defendant's Motion to Dismiss [Dkt. No. 7] is granted for Counts III, IV, V, VI, VII, and VIII, and Defendant's Motion for Summary Judgment [Dkt. No. 7] is granted for Counts I and II.

I. BACKGROUND²

Plaintiff was employed with the NTSB from 1999 until June 30, 2006, when he was removed for unacceptable performance. During that time, he was repeatedly turned down for several positions within NTSB, including Special Assistant, Budget Officer, and Chief Financial Officer.

Plaintiff applied for the Budget Officer position in the spring of 2001. Plaintiff was not selected for this position, and was told that he had not demonstrated the requisite level of supervisory and management skill. A woman was selected for this position in October 2001.

Plaintiff applied for a temporary Special Assistant position in early 2001. There were two vacancies for the position, but Plaintiff was not selected for either. Defendant filled the positions with one man and one woman, both younger than Plaintiff. On April 30, 2001, these two candidates were selected for the permanent Special Assistant position. Plaintiff alleges that he contacted an Equal Employment Opportunity (EEO) counselor within forty-five days of learning of the selections for the temporary Special Assistant position and within forty-five days of learning of the selections for the permanent Special Assistant position.

On unspecified dates, Plaintiff was moved to an office on the sixth floor, denied access to emails and documents on Defendant's computer system, excluded from meetings, denied promotion opportunities, prevented from receiving training, and denied a parking spot and a cell phone.

Plaintiff filed a formal discrimination complaint with the NTSB's EEO office on March 13, 2002, alleging discrimination and retaliation.

Plaintiff filed a second EEO complaint on January 21, 2006, alleging thirty instances of discrimination based on mental and physical handicaps, sex, age, and retaliation.

Plaintiff filed this action on June 9, 2006. His Amended Complaint made eight separate allegations: (1) Count I: Gender Discrimination—Non-Selection; (2) Count II: Gender and/or Age Discrimination—Non-Selection; (3) Count III: Gender and/or Age Discrimination—Inaccurate Position Description, Lowered Performance Appraisal, Removal of Duties, Hostile Work Environment; (4) Count IV: Retaliation— Inaccurate Position Description, Lowered Performance Appraisal, Removal of Duties, Hostile Work Environment; (5) Count V: Discrimination on the Basis of Age, Gender, and/or Retaliation—Disparate Treatment; (6) Count VI: Discrimination on the Basis of Age, Gender, and/or Retaliation—Hostile Work Environment; (7) Count VII: Violation of Workers Compensation Statute; and (8) Count VIII: Violation of the Family and Medical Leave Act.

II. STANDARD OF REVIEW

To survive a motion to dismiss, a plaintiff need only plead "enough facts to state a claim to relief that is plausible on its face" and to "nudge[] [his or her] claims across the line from conceivable to plausible." Bell Atl. Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Id. at 1969.

Under the standard set out in Twombly, a "court deciding a motion to dismiss must not make any judgment about the probability of the plaintiff's success ... must assume all the allegations in the complaint are true (even if doubtful in fact) ... [and] must give the plaintiff the benefit of all reasonable inferences derived from the facts alleged." Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C.Cir.2008) (internal quotation marks and citations omitted).

Where, as here, the Court must consider "matters outside the pleading" to reach its conclusion, a Motion to Dismiss "must be treated as one for summary judgment and disposed of as provided in Rule 56." Fed. R.Civ.P. 12(b); see Yates v. District of Columbia, 324 F.3d 724, 725 (D.C.Cir. 2003).

A motion for summary judgment, on the other hand, may be granted "only if" the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c), as amended December 1, 2007; Arrington v. United States, 473 F.3d 329, 333 (D.C.Cir.2006). In other words, the moving party must satisfy two requirements: first, demonstrate that there is no "genuine" factual dispute and, second, that if there is, it is "material" to the case. "A dispute over a material fact is `genuine' if `the evidence is such that a reasonable jury could return a verdict for the non-moving party.'" Arrington, 473 F.3d at 333, quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "material" if it might affect the outcome of the case under the substantive governing law. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505.

In its most recent discussion of summary judgment, in Scott v. Harris, ___ U.S. ___, 127 S.Ct. 1769, 1776, 167 L.Ed.2d 686 (2007), the Supreme Court said,

[a]s we have emphasized, "[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party there is no `genuine issue for trial.'" Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (footnote omitted). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Liberty Lobby, 477 U.S. at 247-48, 106 S.Ct. 2505 (emphasis in original).

However, the Supreme Court has also consistently emphasized that "at 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." Liberty Lobby, 477 U.S. at 248, 249, 106 S.Ct. 2505. In both Liberty Lobby and Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000), the Supreme Court cautioned that "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts, are jury functions, not those of a judge" deciding a motion for summary judgment. Liberty Lobby, 477 U.S. at 255, 106 S.Ct. 2505.

In assessing a motion for summary judgment and reviewing the evidence the parties claim they will present, "[t]he non-moving party's evidence `is to be believed, and all justifiable inferences are to be drawn in [that party's] favor.'" Hunt v. Cromartie, 526 U.S. 541, 552, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999) (quoting Liberty Lobby, 477 U.S. at 255, 106 S.Ct. 2505). "To survive a motion for summary judgment, the party bearing the burden of proof at trial ... must provide evidence showing that there is a triable issue as to an element essential to that party's claim." Arrington, 473 F.3d at 335³; see Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "[I]f the evidence presented on a dispositive issue is subject to conflicting interpretations, or reasonable persons might differ as to its significance, summary judgment is improper." United States v. Philip Morris, 316 F.Supp.2d 13, 16 (D.D.C.2004) (quoting Greenberg v. FDA, 803 F.2d 1213, 1216 (D.C.Cir.1986)).

III. ANALYSIS

A. Defendant's Motion to Dismiss Is Granted for Counts III, IV, V, VI, VII, and VIII Because Plaintiff Failed To Oppose Substantial Portions of Defendant's Motion to Dismiss.

1. Failure to Respond to Defendant's Arguments

It is clearly established that when a plaintiff's opposition to a motion fails to respond to arguments raised by a defendant, a court may treat those unopposed arguments as conceded. FDIC v. Bender, 127 F.3d 58, 67-68 (D.C.Cir.1997), cited with approval in Hopkins v. Women's Div., Gen. Bd. of Global Ministries, 238 F.Supp.2d 174, 178 (D.D.C.2002); see also Day v. D.C. Dep't of Consumer & Regulatory Affairs, 191 F.Supp.2d 154, 159 (D.D.C.2002).

Here, Plaintiff failed to respond to the following six arguments that Defendant made in his Motion to Dismiss: (1) failure to timely exhaust his administrative remedies for Counts III and IV, (2) failure to state a prima facie case of retaliation (3) failure to state a claim for hostile work environment, (4) raised claims already pending before this Court in a separate action, (5) lack of subject matter jurisdiction for claims pursuant to the...