Paschal v. McHugh

• Decision Date: 22 June 2015
• Docket Number: Civil Action No. CV-12-S-2985-NE
• Parties: ALESYA M. PASCHAL, Plaintiff, v. JOHN M. McHUGH, Secretary of the Army, Defendant.
• Court: U.S. District Court — Northern District of Alabama

ALESYA M. PASCHAL, Plaintiff,
v.
JOHN M. McHUGH, Secretary of the Army, Defendant.

Civil Action No. CV-12-S-2985-NE

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA NORTHEASTERN DIVISION

June 22, 2015

MEMORANDUM OPINION

Plaintiff, Alesya M. Paschal, is a General Engineer who is employed by the United States Army's Space & Missile Defense Center located on Redstone Arsenal in Huntsville, Alabama. She asserts a claim for sexual harassment, numerous claims of gender discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and a claim of disability discrimination in violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701 et seq.¹ All claims are asserted against defendant, John M. McHugh, in his official capacity as Secretary of the United States Army.² The case currently is before

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the court on defendant's motion for summary judgment.³

I. INTRODUCTION

Before considering the merits of defendant's motion, this court must address the dilemma that was created on January 5, 2015, when the Alabama State Bar placed plaintiff's attorney on "inactive status," and thereby declared that he was "not in good standing."⁴ That action was preceded by the following events.

On November 12, 2014, this court struck plaintiff's initial brief in opposition to defendant's motion for summary judgment for failing to comply with the "Uniform Initial Order" that had been entered shortly after commencement of this action.⁵ That order directed plaintiff to file a brief that complied with the formatting requirements and page limitations of the Uniform Initial Order (i.e., not more than 85 pages) on or before December 3, 2014.⁶

Plaintiff's counsel did not comply with those directives in any respect. Instead, on December 5, 2014, two days late, he filed a motion for permission to submit his

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revised response of time,⁷ a motion to exceed the 85-page limit,⁸ and, a proposed, 200-page responsive brief.⁹ (If the three-page "Table of Contents" that was filed with the revised brief as a separate "Exhibit" is counted,¹⁰ the responsive brief actually was 203 pages in length.) This court struck plaintiff's second attempt at a responsive brief, but allowing her attorney fourteen additional days (until December 22, 2014) to file a brief that complied with the Uniform Initial Order.¹¹

On December 23, 2014, one day late, plaintiff's counsel filed a motion seeking a further extension of time: i.e., "four and one half days until Noon CST to and including December 29, 2014, in which to respond to Defendant's Motion for Summary Judgment."¹² This court granted that motion by means of a so-called "TEXT ORDER" electronically "stamped" on the case action summary (docket) sheet maintained by the Clerk.¹³

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Yet again, however, plaintiff's counsel did not comply with the court's deadline. Instead, on January 5, 2015, seven days late, he filed a motion seeking yet another extension of time, "until Noon CST to and including January 8, 2015," and permission to file a brief containing 125 pages.¹⁴ This court initially was inclined to summarily deny that relief and to consider defendant's motion for summary judgment with no response from plaintiff. But, mindful of the need to give fair consideration to the claims of plaintiff, despite her attorney's failures, this court ultimately granted the motion in both respects, stating that:

The deadline for plaintiff to respond to defendant's motion for summary judgment is EXTENDED until January 8, 2015. Thereafter, defendant will have until January 22, 2015 to file a reply brief. The page limit for plaintiff's brief is EXTENDED to 125 pages.¹⁵

Perhaps it will come as no great shock that plaintiff's attorney only partially complied with those requirements. His brief was less than 125 pages in length, but it was one day late.¹⁶ The most serious problem, however, arose from the fact that the Alabama State Bar had placed him on inactive status four days before.

With the sole exception of attorneys from other jurisdictions who are admitted pro hac vice, or individual parties who represent themselves pro se, only lawyers who

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are licensed by, and in good standing with, the Alabama State Bar possess the authority to practice law in the courts of the State of Alabama, and to be admitted to practice before the Bar of the United States District Court for the Northern District of Alabama. See, e.g., Herndon v. Lee, 199 So. 2d 74, 78 (Ala. 1967) ("Only such persons as are regularly licensed have authority to practice law."); N.D. Ala. Local Rule 83.1(a)(1).¹⁷

Before this court could formally address the issue of the standing of plaintiff's attorney to file pleadings in this action, however, his client, Alesya M. Paschal, filed a pro se pleading that objected to the "withdrawal" of her attorney — a pleading that this court construes as an objection to striking the most recent brief filed on her

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behalf.¹⁸ Ms. Paschal asserts that: her attorney required a $30,000 retainer (!); she had "paid him in full"; and, accordingly, "[f]or him to withdraw [sic] denies me the benefit of what I paid him for."¹⁹

Hence, the dilemma. This court is sensitive to plaintiff's concerns. Even though the court is not pleased with the failure of her attorney to comply with the requirements of the "Uniform Initial Order," or the orders outlined above, this court is mindful of the interests of justice. Therefore, in an effort to ensure that no aspect of plaintiff's numerous claims is overlooked, this court exercises its inherent discretion to consider not only the most recent responsive brief filed on plaintiff's behalf (doc. no. 69), but also the two briefs that were previously stricken (doc. nos. 53 and 60). Accordingly, it is ORDERED that this court's prior orders striking plaintiff's initial and second briefs in response to defendant's motion for summary judgment are WITHDRAWN and RESCINDED,²⁰ both reply briefs are REINSTATED,²¹ and each will be considered together with the brief filed on January

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9, 2015.²²

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 56 provides that a court "shall grant summary judgment 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). In other words, summary judgment is proper "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "In making this determination, the court must review all evidence and make all reasonable inferences in favor of the party opposing summary judgment." Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (quoting Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)). Inferences in favor of the non-moving party are not unqualified, however. "[A]n inference is not reasonable if it is only a guess or a possibility, for such an inference is not based on the evidence, but is pure conjecture and speculation." Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321, 1324 (11th Cir. 1983) (alteration supplied). Moreover,

[t]he mere existence of some factual dispute will not defeat

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summary judgment unless that factual dispute is material to an issue affecting the outcome of the case. The relevant rules of substantive law dictate the materiality of a disputed fact. A genuine issue of material fact does not exist unless there is sufficient evidence favoring the nonmoving party for a reasonable jury to return a verdict in its favor.

Chapman, 229 F.3d at 1023 (quoting Haves, 52 F.3d at 921) (emphasis and alteration supplied). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986) (asking "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law").

Following application of the foregoing standards to the pleadings, briefs, and evidentiary submissions, this court concludes that defendant's motion for summary judgment is due to be granted.

III. SUMMARY OF FACTS

The following statements are the "facts" for summary judgment purposes only, and may not be the actual facts. See Cox v. Administrator U.S. Steel & Carnegie Pension Fund, 17 F.3d 1386, 1400 (11th Cir. 1994). All reasonable doubts have been resolved in favor of plaintiff, the nonmoving party. See Information Systems and Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir. 2002).²³

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A. Harassment

Plaintiff has worked as a GS-14 General Engineer in the "Future Warfare Center" of the United States Army's Space & Missile Defense Center on Redstone Arsenal since 2002.²⁴

Steve Fox, Chief of the Models & Simulations Division in the Future Warfare Center, served as plaintiff's direct supervisor from 2002 until 2008.²⁵ Prior to 2008, plaintiff and Fox had a "trusting, friendly" relationship.²⁶ during 2005, for example, when plaintiff...