Maduforo v. Urban Service Systems Corp.

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

IJEOMA MADUFORO, : : Plaintiff, : : v. : Civil Action No. 09-0287 (JR) : URBAN SERVICE SYSTEMS CORP., : : Defendant. :

MEMORANDUM

The complaint in this employment case begins with a

sordid tale of sexual harassment, then shifts to allegations of

discriminatory discipline, and then asserts two federal claims

under 42 U.S.C. § 1981, Count I, for racial discrimination, and

Count III, for retaliation. Plaintiff conceded the dismissal of

Count III [#12], because there is no cause of action under § 1981

for retaliation arising from gender discrimination [#9], and

defendant then moved for summary judgment as to Count I.

Plaintiff responded with a motion for leave to amend her

complaint and a Rule 56(f) motion for discovery. Those motions

are now before the Court.

The motion for leave to amend [#23] will be denied.

Plaintiff may not amend as a matter of course, because defendant

has filed a responsive pleading within the meaning of Rule

15(a)(1)(A), see [#7]. Leave to amend is to be granted

“freely . . . when justice so requires,” to be sure, Foman v.

Davis, 381 U.S. 178, 182 (1962), but in this case justice does not so require. The motion is a transparent attempt to shore up

plaintiff’s invocation of this Court’s “arising under”

jurisdiction by adding one minuscule factual allegation to the

case, namely, that plaintiff did not receive an allowance for car

expenses that was granted to another, white employee, until she

asked for it.

Without plaintiff’s car allowance claim, her federal

case collapses. That is because her Rule 56(f) motion to stay or

deny is so far from meeting the requirements of Rule 56(f) that

it must be denied, with the result that she is left with no

response to the pending motion for summary judgment.

Rule 56(f) is a precision tool for narrowing issues and

controlling what would otherwise be blunderbuss discovery. “Rule

56 does not require that any discovery take place before a motion

for summary judgment may be granted.” Moore’s Fed. Prac.3d

¶ 56.10[8][a]. But Rule 56(f) “provides a means to obtain time

for further discovery”, id., if a party opposing summary judgment

shows by affidavit that it cannot present facts essential to

justify its opposition. The affidavit cannot be a generalized,

speculative request to conduct discovery but must demonstrate

that further specified discovery will defeat a summary judgment

motion -- it must show “specifically how a continuance for

further discovery will enable that party to rebut the assertions

contained in the pending summary judgment motion.” Moore’s Fed.

- 2 - Prac.3d § 576.10[8][d]. See Messina v. Krakower, 439 F.3d 755,

762 (D.C. Cir. 2006) (requiring concrete statement, rejecting

conclusory assertions).

Here the affidavits plaintiff offers in support of her

Rule 56(f) motion are her own and that of the white woman who

says she did receive a car allowance. The affidavits relate

exclusively to the car allowance claim and have nothing to do

with the claim that was the subject of the motion for summary

judgment. Thus, plaintiff states, “If I’m not allowed to conduct

discovery, namely deposing defendant’s representative Ms. Wilhoit

regarding the car allowance and sending interrogatories and

document requests regarding the car allowance, I will not be able

to defend against defendant’s motion for summary judgment.”

(Emphasis added.) But defendant’s motion for summary judgment

has nothing to do with the car allowance question; the car

allowance claim was not part of the record when the motion for

summary judgment was filed, and plaintiff’s attempt to cobble it

onto the case at this point is rejected.

Defendant’s motion for summary judgment asserts (and

supports the assertion with a declaration) that both plaintiff

and Ms. Wilhoit, the person plaintiff alleges was better treated

with respect to discipline on the job, were in fact treated

identically. [#15-2 at 5-6]. The motion also asserts that there

were legitimate and non-discriminatory reasons for plaintiff’s

- 3 - termination. Plaintiff’s response identifies no basis for a

finding of pretext. Without the car allowance claim, in other

words, there is nothing to plaintiff’s complaint, and she has

failed in her Rule 56(f) response to demonstrate that any

specified discovery would defeat the summary judgment motion.

What this case is really about, apparently, is

plaintiff’s claim that she was terminated because she resisted

the sexual advances of her superiors. That, as the record has

already established, is a retaliation claim not cognizable under

the rubric of 42 U.S.C. § 1981. Whether the claim is cognizable

under the D.C. Human Rights Act, which is the subject of Counts

II and IV, is not for this Court to determine. If the case

belongs anywhere, however, it is in Superior Court of the

District of Columbia. I will decline supplemental jurisdiction

of plaintiff’s DCHRA claims, 28 U.S.C. § 1367(c)(3), and dismiss

them without prejudice, so that plaintiff can pursue these

claims, if she chooses to do so, across the street.

An appropriate order accompanies this memorandum.

JAMES ROBERTSON United States District Judge

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