Said v. Nat'l R.R. Passenger Corp.

• Citation: 317 F.Supp.3d 304
• Decision Date: 10 July 2018
• Docket Number: Civil Action No. 15–1289 (RBW)
• Parties: Cheryl Renee SAID, Plaintiff, v. NATIONAL RAILROAD PASSENGER CORPORATION, Defendant.
• Court: U.S. District Court — District of Columbia

317 F.Supp.3d 304

Cheryl Renee SAID, Plaintiff,
v.
NATIONAL RAILROAD PASSENGER CORPORATION, Defendant.

Civil Action No. 15–1289 (RBW)

United States District Court, District of Columbia.

Signed July 10, 2018

317 F.Supp.3d 310

Charity Swift, Pro Hac Vice, Stephen Christopher Swift, Swift & Swift, P.L.L.C., Alexandria, VA, for Plaintiff.

Eunju Park, Joshua B. Waxman, Littler Mendelson, P.C., Washington, DC, for Defendant.

MEMORANDUM OPINION

REGGIE B. WALTON, United States District Judge

The plaintiff, Cheryl Renee Said, instituted this civil action against the defendant, the National Railroad Passenger Corporation ("Amtrak"), alleging violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e–2 to – 7 (2012) ("Title VII"), § 1981 of the Civil Rights Act of 1866, as amended, 42 U.S.C. § 1981, the District of Columbia Human Rights Act ("DCHRA"), D.C. Code § 2–1402.11(a)(1) (2012), the Due Process Clause of the Fifth Amendment to the United States Constitution, District of Columbia public policy, and District of Columbia common law. See Complaint

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("Compl.") ¶¶ 3, 64.¹ Currently before the Court is the Defendant's Motion for Summary Judgment ("Def.'s Mot."). Upon careful consideration of the parties' submissions,² the Court concludes that it must grant in part and deny in part the defendant's motion.

I. BACKGROUND

As an initial matter, the defendant argues that the Plaintiff's Statement of Disputed Facts fails to comply with the Federal Rules of Civil Procedure and the local rules of this Court, and therefore, "the Court should ... not accept any argument [raised] therein as creating a factual dispute that may defeat [its] motion, deem each of [its] factual statements as admitted, and grant summary judgment in [its] favor on the record evidence it presents in support of its motion." Def.'s Reply at 3. The defendant further argues that "the Court should disregard all of the unsupported ‘facts’ and unauthenticated exhibits [the p]laintiff relies upon in opposing [its] motion," emphasizing that the plaintiff has "not set[ ] forth any of her ‘facts’ in her [s]eparate [s]tatement[, and] has complied with none of the[ ] requirements [in the federal and local rules] for the purported ‘facts’ in her brief." Id. at 4.

The Court agrees with the defendant that the plaintiff's submissions to the Court fail to comply with both the federal and local rules in a number of respects. The Plaintiff's Statement of Disputed Facts fails to comply with Local Rule 7(h), which requires "[a]n opposition ... [to include] a separate concise statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated, ... [and] references to the parts of the record relied on to support the statement," LcvR 7(h)(1), and also Federal Rule of Civil Procedure 56(c)(1), which similarly requires that "[a] party asserting that a fact ... is genuinely disputed must support the assertion by [ ] citing to particular parts of materials in the record," Fed. R. Civ. P. 56(c)(1). Although the Plaintiff's Statement of Disputed Facts purports to identify seven broad "issues" in dispute, it fails to set forth any statements of fact or provide any corresponding citations to the record. See, e.g., Pl.'s Disputed Facts ¶ 4 (asserting merely that "[t]here is a genuine material issue of fact in dispute as to whether [the d]efendant's claimed reason for terminating

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the p]laintiff[ ] was a pretext and a cover up"). Furthermore, the Plaintiff's Statement of Disputed Facts fails to specifically respond to the individual statements of fact asserted in the Defendant's Statement of Undisputed Facts. See id. at 2 (generally asserting only that "[w]ith the exception of [ ] nos. 1–6, ... [the d]efendant[']s undisputed facts are arguments, and as such [the p]laintiff disputes [the d]efendant[']s claimed [u]ndisputed facts"). Moreover, although "the 2010 amendments to Federal Rule of Civil Procedure 56 eliminated the unequivocal requirement that documents submitted in support of a summary judgment motion [or opposition] must be authenticated," Akers v. Beal Bank, 845 F.Supp.2d 238, 243 (D.D.C. 2012) (internal quotation marks omitted), it is still the plaintiff's "burden [as] the proponent [of the material cited to support or dispute a fact] to show that the material is admissible as presented or to explain the admissible form that is anticipated," Fed. R. Civ. P. 56(c)(2) advisory committee's note to 2010 Amendment, subsection c, and the plaintiff has failed to do that here, at least not in a manner that is apparent to the Court. And finally, the defendant is correct that aside from intermittent citations to these same exhibits, the plaintiff's opposition is almost entirely devoid of citations to the record. See generally Pl.'s Opp'n.

Although the Court is troubled by the plaintiff's counsel's non-compliance, which "makes the work of the Court more onerous," Lawrence v. Lew, 156 F.Supp.3d 149, 155–56 (D.D.C. 2016), in the interest of resolving the defendant's summary judgment motion without further delay, and because "strong policies favor the resolution of genuine disputes on their merits," Jackson v. Beech, 636 F.2d 831, 832 (D.C. Cir. 1980), the Court declines to "disregard" all of the plaintiff's facts and exhibits or deem the Defendant's Statement of Undisputed Facts admitted. Rather, the Court will consider the plaintiff's facts and exhibits to the extent that they are relevant and supported by evidence in the record that is readily identifiable by the Court. See Fed. R. Civ. P. 56(c)(3) ("The court need consider only the cited materials, but it may consider other materials in the record."); see also Chambliss v. Nat'l R.R. Passenger Corp., Civ. Action No. 05-2490 (CKK), 2007 WL 581900, at *2 (D.D.C. Feb. 20, 2007) ("Despite [the p]laintiff's abject failure to comply with his obligations under Local Civil Rule 56.1..., in the interest of justice, the Court has nevertheless undertaken a review of the record evidence ... in order to determine whether that evidence raises genuine issues of fact."). Furthermore, the Court will make an independent assessment as to whether the facts in the Defendant's Statement of Undisputed Facts are indeed undisputed by the plaintiff. See Fed. R. Civ. P. 56(e) ("If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact ..., the court may [ ] ... consider the fact undisputed for purposes of the motion." (emphasis added) ).³

Based on the Court's independent review of the record evidence, including the plaintiff's deposition testimony, the Court concludes that the following relevant facts are undisputed, with the exception of facts attributed solely to the plaintiff's deposition testimony or otherwise noted as an

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allegation by the plaintiff. The "[p]laintiff, an African American female," was employed by Amtrak as a Lead Service Attendant [ ] based out of Washington, D.C. Def.'s Facts ¶ 1 (footnote omitted); see also Def.'s Mot., Att. (Declaration of Joshua B. Waxman in Support of Defendant's Motion for Summary Judgment (Apr. 28, 2017) ("Waxman Decl.") ), Exhibit ("Ex.") A (Deposition Transcript of Cheryl Renee Said (Feb. 13, 2017) ) ("Said Dep.") 23:22–25. During the plaintiff's employment with Amtrak, she was a "member[ ] of a bargaining unit whose terms and conditions of employment [we]re governed by a collective bargaining agreement (‘CBA’) between Amtrak and [the] Amtrak Service Workers Council (... the ‘Union’)." Def.'s Facts ¶ 5; see also Said Dep. 30:14–25. The plaintiff's direct supervisor was On–Board Services Manager Phyllis McClinton, see Def.'s Facts ¶ 2; see also Said Dep. 26:16–18, an African American female, see Def.'s Facts ¶ 4, and Philip Ryan, a Caucasian male, was the Washington, D.C. Crew Base Manager, Def.'s Facts ¶¶ 44, 46; see also Said Dep. 79:25–80:2. "Per the [U]nion contract, [Ryan] was [also] the [plaintiff's] supervisor," Def.'s Mot., Att. (Waxman Decl.), Ex. C (DCOHR Interview with Phil Ryan, Crew Base Manager ("Ryan Interview") (Oct. 29, 2013) ) at DCOHR000038; however, he "was not [the p]laintiff's day-to-day supervisor," Def.'s Facts ¶ 46.

The plaintiff testified during her deposition that in 2010, "around two months before" February 2, 2011, see Said Dep. 89:9–10, she was "confronted" by Ryan, id. 87:17–21, who, according to the plaintiff, called her to his office because he "had assumed that [she] was not at [her] post, and he wanted to ... discipline [her]," id. 87:14–17. She testified that McClinton and a fellow Lead Service Agent, Lee Lockhart, a Caucasian male, were also present during the encounter, id. 87:17–21, 89:11–22, 92:25–93:1, and that Lockhart "spoke up for [her] to let [Ryan] know that [she] was where [she] was suppose[d] to be," id. 93:4–5. She further testified that "as [she was] leaving" Ryan's office, Ryan "mentioned to [her,] ... I thought it was you, because you all look alike." Id. 87:22–24. The plaintiff asserted that Lockhart was present when Ryan made this statement, id. 89:20–22, but "McClinton was not [with]in the distance where she could hear [Ryan's statement]" because she had left the office before the statement...