SUMMARY OPINION AND ORDER; NOT INTENDED FOR PUBLICATION
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
MARY ANN SATTERTHWAITE,
Plaintiff,
v. Civil Action No. 09-cv-2374 (RLW)
DISTRICT OF COLUMBIA,
Defendant.
MEMORANDUM OPINION 1
This matter is before the Court on Defendant District of Columbia’s (“District”) Motion
for Summary Judgment (Dkt. No. 21). Plaintiff Mary Ann Satterthwaite (“Plaintiff”) asserts
three counts against the District:
• Count I: Discrimination under 42 U.S.C. § 1981 based on race
• Count II: Discrimination under Title VII based on race and gender; and
• Count III: Discrimination under D.C. Human Rights Act based on race and
gender.
Plaintiff seeks $2.3 million in compensatory damages against the District, lost income and back
pay, and attorneys’ fees and costs.
For the following reasons, the District’s Motion is GRANTED. For purposes of this
ruling, the Court will assume that the reader is familiar with the factual assertions and arguments
made by the parties, and will not recite those again here.
1 This is a summary opinion intended for the parties and those persons familiar with the facts and arguments set forth in the pleadings; not intended for publication in the official reporters. 1 SUMMARY OPINION AND ORDER; NOT INTENDED FOR PUBLICATION
ANALYSIS
A. Standard of Review
Summary judgment is appropriate when the moving party demonstrates 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 Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009) (citing FED. R. CIV. P. 56(c)
and Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986)). A genuine issue of material
fact exists if the evidence “is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson, 477 U.S. at 248. A party, however, must provide more than “a scintilla of
evidence” in support of its position; the quantum of evidence must be such that a jury could
reasonably find for the moving party. Id. at 252.
B. The District’s Statement of Material Facts Not In Dispute Is Deemed Admitted.
In considering whether the District is entitled to summary judgment, the Court will deem
the District’s statement of material facts not in dispute as admitted. Plaintiff has failed to
controvert the District’s facts and has repeatedly failed to submit an opposing statement of facts
that complies with the local rules.
On December 17, 2010, the District filed its Motion for Summary Judgment. (Dkt. No.
21). In compliance with the local and federal rules, the District submitted a Statement of
Material Facts Not in Dispute, listing 33 short and concise facts, each supported by specific
references to record evidence. 2 (Dkt. No. 21 at 19-22). After asking for and receiving an
extension of time to January 25, 2011, Plaintiff filed her Opposition brief on January 26, 2011.
2 The Court has satisfied itself that, but for a few minor and irrelevant points, the record evidence upon which the District relies supports its Statement of Material Facts Not in Dispute. See Jackson v. Finnegan Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 154 (D.C. Cir. 1996) (stating that, after having struck nonmovant’s opposing statement of facts, district court’s “obligation was to determine whether the [movant’s] statement of undisputed material facts was adequately supported by the record.”) (internal quotation marks omitted). 2 SUMMARY OPINION AND ORDER; NOT INTENDED FOR PUBLICATION
(Dkt. No. 23). Plaintiff’s “Statement of Facts” in that brief was merely an exact recitation of the
unsupported factual allegations in her Amended Complaint. (Dkt. No. 23 at 1-5). Plaintiff also
included in her brief a “Statement of Material Facts in Dispute,” listing 6 conclusory statements
with no record support. See, e.g., Dkt. No. 23 at 6 (listing the allegation that “the Defendant
violated it’s on [sic] policies as applied to Plaintiff because of her race and sex” as a material fact
in dispute). Instead of offering specific record support for these six contentions, Plaintiff merely
stated in a footnote that her statement of facts was “based on the depositions of Dana Friend,
Joseph E. Sanchez, Gloria Trotman, and Anne B. Wicks.” (Dkt. No. 23 at 6 & n.1). Plaintiff
then “cut and pasted” numerous long excerpts (a total of 28 pages) of these depositions into her
brief and attached the full transcripts of those depositions as exhibits to her Opposition. The
excerpts inserted into her brief were merely introduced with the statement: “Depositions of Dana
Friend, Joseph E. Sanchez, Gloria Trotman, and Anne B. Wicks show that a reasonable Trier of
fact could make a finding of discrimination.” (Dkt. No. 23 at 10). Plaintiff failed to dispute or
controvert any of the District’s facts. In its Reply, the District asked this Court to deem its
Statement of Material Facts as conceded due to Plaintiff’s failure to comply with LCvR 7(h)(1).
(Dkt. No. 25 at 1-2).
On July 14, 2011, this Court held a status conference to discuss the deficiencies in
Plaintiff’s opposing statement of facts. The Court explained to Plaintiff’s counsel in detail why
Plaintiff’s submission was deficient and how to correct the deficiencies. The Court instructed
Plaintiff’s counsel that Plaintiff “need[s] to respond to the District’s facts” “one by one.” If
Plaintiff disputed any of the District’s facts, the Court instructed Plaintiff to include a “short
statement of what you think the fact really is,” citing the evidence that supports Plaintiff’s
assertion.
3 SUMMARY OPINION AND ORDER; NOT INTENDED FOR PUBLICATION
The Court then instructed Plaintiff’s counsel that, if Plaintiff believed there were
additional material facts beyond what the District listed, those facts could be added to Plaintiff’s
opposing statement of facts. Plaintiff’s counsel agreed at the hearing that he would “clear up the
facts to respond one by one to the district’s facts” to “make it clearer for the Court . . . .”
Although the District again requested that its statement of facts be deemed admitted and that
Plaintiff not be given the opportunity to cure her deficiencies, the Court denied the District’s
request “with some reluctance.” Warning Plaintiff’s counsel that the Court would not look
favorably on future “blatant noncompliance” with the local rules, the Court allowed Plaintiff an
opportunity to cure her opposing statement of facts. The Court made clear, however, that
Plaintiff would not have the opportunity to write a new brief or to make new arguments: “What
simply you will be permitted to do is to submit a new responsive statement that complies with
the local rules and with the instructions that I’ve given you at this hearing.”
Although Plaintiff was to file her revised opposing statement of facts on August 15, 2011,
she did not do so until August 16, 2011. (Dkt. No. 26). Plaintiff’s “revised” filing again fell far
short. Plaintiff again wholly failed to respond to the District’s facts one by one, and to inform
the Court which facts were disputed. Rather, Plaintiff slightly re-worded and revised her initial
“Statement of Material Facts in Dispute.” The revised statement now contained 8 paragraphs,
which consisted of a mix of argument, legal conclusion, and an occasional purported fact, none
of which responded to, or refuted, the facts set forth in the District’s Motion. (Dkt. No. 26 at 1).
Examples of Plaintiff’s revised Statement of Material Facts include:
• “Plaintiff is being discriminated against and denied equal pay
as for working from 2007 to October 2010 in this position a
white male had previously held at a Grade 15. The Exhibits 1,
4 SUMMARY OPINION AND ORDER; NOT INTENDED FOR PUBLICATION
2, 3, 4; Depositions of DANA FRIEND, JOSEPH E. SANCHEZ,
GLORIA TROTMAN, AND ANNE B. WICKS.” (Dkt. No. 26 at 1-
2).
• “That the Defendant violated it’s on [sic] policies as applied to
Plaintiff because of her race and sex and Plaintiff have has [sic]
evidence to show a prima face [sic] case for race and sex
discrimination. The Exhibits 2, 3, 4; Deposition of Joseph E.
Sanchez, Gloria Trotman, and Anne B. Wicks.” (Dkt. No. 26
at 2).
Plaintiff’s 28-page “revised” opposing statement of facts again included long excerpts of
deposition transcripts and newly-raised legal arguments, which this Court expressly prohibited
Plaintiff from including.
Under this Court’s Local Civil Rule 7(h)(1):
Each motion for summary judgment shall be accompanied by a statement of material facts as to which the moving party contends there is no genuine issue, which shall include references to the parts of the record relied on to support the statement. An opposition to such a motion shall be accompanied by 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, which shall include references to the parts of the record relied on to support the statement. Each such motion and opposition must also contain or be accompanied by a memorandum of points and authorities and proposed order as required by LCvR 7(a), (b) and (c). In determining a motion for summary judgment, the court may assume that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion.
5 SUMMARY OPINION AND ORDER; NOT INTENDED FOR PUBLICATION
(emphasis added). As our Circuit Court of Appeals has explained, “a district court should not be
obliged to sift through hundreds of pages of depositions, affidavits, and interrogatories in order
to make [its] own analysis and determination of what may, or may not, be a genuine issue of
material fact.” Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 151
(D.C. Cir. 1996) (quoting Twist v. Meese, 854 F.2d 1421, 1425 (D.C. Cir. 1988), cert. denied
sub nom. Twist v. Thornburgh, 490 U.S. 1066 (1989)). Nonetheless, by wholly failing to
comply with the Local Rules and this Court’s detailed instructions, particularly where the Court
granted Plaintiff an opportunity to cure her blatant noncompliance, it is clear that Plaintiff
expects the Court to sift through the entire record and find support for her various conclusions.
Moreover, by including new arguments in her revised statement despite this Court’s express
instruction not to do so, it is clear that Plaintiff has no regard for this Court’s orders. The Court
has carefully considered the matter, and in an exercise of its discretion, rules that Plaintiff’s
revised Statement of Opposing Material Facts fails to comply with the Local Rules and will be
stricken and therefore not considered. Accordingly, the Court will treat the District’s Statement
of Material Facts Not in Dispute as admitted.
C. Count I: Discrimination Under 42 U.S.C. § 1981 Based on Race
In Count I, Plaintiff asserts a cause of action against the District of Columbia under 42
U.S.C. § 1981. (Dkt. No. 7 at 6-7). Section 1981 prohibits all persons from discriminating on
the basis of race in the creation or enforcement of contracts. 42 U.S.C. § 1981 (2006). In order
to establish liability against a municipality for a claim alleging a violation of § 1981, a plaintiff
must establish: first, that the defendant discriminated against her on the basis of her race with
respect to the making or enforcement of contracts; and second, that the discrimination was
effectuated pursuant to an official policy or custom of the District. See McGovern v. City of
6 SUMMARY OPINION AND ORDER; NOT INTENDED FOR PUBLICATION
Philadelphia, 554 F.3d 114, 121 (3d Cir. 2009) (rejecting plaintiff’s § 1981 claim against a
municipality in part due to the plaintiff’s failure to allege that the discrimination he suffered was
the result of an “official policy or custom” of the city); see, e.g., Dickerson v. Dist. of Columbia,
806 F. Supp. 2d 116, 120 (D.D.C. 2011); Hamilton v. Dist. of Columbia, 720 F. Supp. 2d 102,
114 (D.D.C. 2010); 5-87 MODERN FEDERAL JURY INSTRUCTIONS-CIVIL P § 87.19 (“[t]he fact that
an employee of a municipality deprived the plaintiff of his right to make and enforce contracts is
not alone a sufficient basis for holding the municipality liable…the plaintiff must establish by a
preponderance of the evidence that the action…was either the result of an official policy of the
municipality or an established custom of the municipality”); 3C FED. JURY PRAC. & INSTR. §
170.23 (5th ed.) (requiring a finding that the discrimination experienced by a § 1981 plaintiff
was pursuant to “a governmental custom, policy, ordinance, regulation or decision”).
The District argues that Plaintiff has failed to allege or establish that the District had a
custom or policy that led to discrimination against her, and that such failure is fatal to Plaintiff’s
Section 1981 claim. (Dkt. No. 21 at 9-11). Plaintiff fails to refute this argument in her
opposition brief. As such, this Court may treat the District’s argument as conceded. See LCvR
7(b); F.D.I.C. v. Bender, 127 F.3d 58, 67-68 (D.C. Cir. 1997); Newton v. Office of the Architect
of the Capitol, 2012 WL 768204, at *10 (D.D.C. Mar. 12, 2012) (“When a party files an
opposition addressing only certain arguments raised in a dispositive motion, a court may treat
those arguments that the non-moving party failed to address as conceded.”).
Even assuming the District’s argument were not conceded, Plaintiff has failed to raise a
genuine issue of fact regarding a discriminatory policy or custom on behalf of the District.
Construing Plaintiff’s Opposition very liberally, Plaintiff at best attempts to establish that Ms.
Anne Wicks (the Executive Officer of the D.C. Courts) is a “policymaker” and therefore
7 SUMMARY OPINION AND ORDER; NOT INTENDED FOR PUBLICATION
established a District of Columbia policy of unlawful discrimination by her single act of alleged
discrimination against the Plaintiff. Although the record reflects that Ms. Wicks is responsible
for the administration and management of the D.C. courts and has the authority to hire and fire
employees, there is no evidence that she was responsible for establishing the employment policy
for the District of Columbia. See Tabb v. Dist. of Columbia, 605 F. Supp. 2d 89, 96 (D.D.C.
2009). Moreover, for the reasons set forth below, even if Ms. Wicks had such policymaking
authority, Plaintiff has failed to show that any such policy or custom amounted to discrimination.
D. Counts II and III: Racial and Gender Discrimination Under Title VII and the D.C. Human Rights Act
Both Title VII and discrimination claims brought under the D.C. Human Rights Act are
analyzed under McDonnell Douglas burden-shifting framework. See McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973); Gaujacq v. EDF, Inc., 601 F.3d 565, 576 (D.C. Cir. 2010).
Under this framework, the plaintiff seeking to prove disparate treatment by circumstantial
evidence first has the burden of establishing a prima facie case of disparate treatment by showing
that “(1) she is a member of a protected class; (2) she suffered an adverse employment action;
and (3) the unfavorable action gives rise to an inference of discrimination.” Mastro v. Potomac
Elec. Power Co., 447 F.3d 843, 850 (D.C. Cir. 2006). Once she establishes a prima facie case,
the burden shifts to the defendant to “articulate” a “legitimate, non-discriminatory reason” for the
adverse employment action, after which the plaintiff must have the opportunity to show that the
articulated reasons were pretext for discrimination. McDonnell Douglas, 411 U.S. at 802-04.
The purpose of the prima facie case is to demonstrate “actions taken by the employer from which
one can infer, if such actions remain unexplained, that it is more likely than not that such actions
were ‘based on a discriminatory criterion.’” Furnco Const. Corp. v. Waters, 438 U.S. 567, 576
(1978).
8 SUMMARY OPINION AND ORDER; NOT INTENDED FOR PUBLICATION
Where the employer has asserted a legitimate, non-discriminatory reason for the
employment action, the employee’s burden of demonstrating pretext “merges” with her ultimate
burden of demonstrating discrimination, which can be demonstrated “either directly by
persuading the court that a discriminatory reason more likely motivated the employer or
indirectly by showing that the employer’s proffered explanation is unworthy of credence.”
Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). This Circuit has made clear
that where the employer has articulated a legitimate, nondiscriminatory reason for the adverse
employment action, the court is to consider only “one central question” in deciding the
employer’s summary judgment motion: “[h]as the employee produced sufficient evidence for a
reasonable jury to find that the employer’s asserted non-discriminatory reason was not the actual
reason and that the employer intentionally discriminated against the employee on the basis of
race, color, religion, sex, or national origin?” Brady v. Office of Sergeant at Arms, 520 F.3d
490, 494 (D.C. Cir. 2008).
Even assuming that Plaintiff has established a prima facie case of discrimination
necessary to satisfy her burden under the first step of the McDonnell Douglas test, Plaintiff has
ultimately failed to show any genuine issue of material fact necessitating a trial. The record in
this case amply supports the District’s proffered legitimate, non-discriminatory reasons for the
downgrade. According to the undisputed material facts, the position was downgraded from a
Grade 15 to a Grade 14 because the Executive Office determined that it would create an
“[im]prudent organizational structure” to have multiple senior management positions graded at
the 15 level in a division as small as the Capital Projects and Facilities Management Division,
which is the division encompassing the Building Operations Manager position and which
includes only 28 positions. (Dkt. No. 21 at 20 ¶¶ 11-15). In particular, setting the Buildings
9 SUMMARY OPINION AND ORDER; NOT INTENDED FOR PUBLICATION
Operations Manager at Grade 15 would have made the Deputy Director of that division (also a
Grade 15 position) unable to supervise the Building Operations Manager, and would have
necessitated a higher salary for the Deputy Director of that division than the Executive Office
was prepared to invest in such a small division. (Id.).
In light of these undisputed legitimate, non-discriminatory reasons for the District to
downgrade the position from a Grade 15 to a Grade 14, Plaintiff has failed to raise a genuine
issue of fact demonstrating that these reasons were pretextual or are unworthy of credence. Nor
has Plaintiff introduced any evidence demonstrating that discrimination, and not the District’s
articulated non-discriminatory reasons, more likely than not motivated the Defendant’s decision
to downgrade the position.
Although Plaintiff repeatedly alleges that the position was downgraded “after Plaintiff’s
race and gender became known to the Executive Office,” (Dkt. No. 7 at ¶ 21), that allegation is
not supported by the evidence. Ms. Wicks’ undisputed testimony reflects that Ms. Wicks was
well aware of Plaintiff’s race and gender, having known Plaintiff personally for more than ten
years. (Wicks Dep. 32:6-15). Moreover, it is undisputed that when the previous Building
Operations Manager, Zsolt Szalay (a white male), was hired for that position, he began that
position as a Grade 14. (Dkt. No. 21 at 20 ¶ 8). His grade was increased to 15 only after he
complained that he was led to believe at the time of his hire that he would be paid at a Grade 15
level. (Id. at ¶¶ 9-10). Although Ms. Wicks agreed to increase the grade of the Building
Operations Manager position to Grade 15 at that time, she did so “for the incumbent only.” (Id.
at ¶ 10). Given this undisputed evidence, it is clear that, notwithstanding any error that the
District may have made when it first announced the vacancy as a Grade 15 after Mr. Szalay’s
retirement, the District’s ultimate reduction of the position to a Grade 14 is consistent with its
10 SUMMARY OPINION AND ORDER; NOT INTENDED FOR PUBLICATION
conduct when Mr. Szalay was initially hired. Thus, given the strong support in the record for the
Defendant’s asserted non-discriminatory reasons for its actions, and Plaintiff’s failure to identify
or introduce any evidence suggesting that these reasons were pretextual and/or that the District
discriminated against her, the District is entitled to summary judgment.
E. Plaintiff’s Newly-Asserted Claim Under the Equal Pay Act
Plaintiff also asserts a claim under the Equal Pay Act, raised for the first time in her
opposition brief to the District’s motion for summary judgment. (Dkt. No. 23 at 39). The Equal
Pay Act prohibits employers from paying “wages to employees of the opposite sex…for equal
work on jobs the performance of which requires equal skill, effort, and responsibility.” 29
U.S.C. § 206(d)(1) (2006).
This Court will not address Plaintiff’s Equal Pay Act claim given that it was raised for the
first time in her Opposition to the District’s Motion for Summary Judgment. See Gonzalez v.
Holder, 763 F. Supp. 2d 145, 149 n.1 (D.D.C. 2011); Wright v. Ernst & Young LLP, 152 F.3d
169, 178 (2d Cir. 1998) (party may not amend its pleading by introducing claims for the first
time in an opposition brief). Even if this Court were to construe Plaintiff’s reference to the Equal
Pay Act in her Opposition as a Motion for Leave to Amend the Complaint, this Court would still
deny leave to amend because there is nothing to indicate that justice requires granting such leave.
Plaintiff offers no reason why she could not have included an Equal Pay Act claim in her
Amended Complaint. Moreover, as detailed earlier in this Opinion, in responding to the
District’s motion for summary judgment, Plaintiff has repeatedly violated this Court’s Local
Rules. Finally, Plaintiff failed to accompany her brief with an “original of the proposed pleading
as amended” as required by LCvR 7(i). Given such repeated infractions, combined with the lack
of any ostensible reason justifying its delay in adding this claim at this stage, this Court will not
the newly-raised Equal Pay Act claim. 11 SUMMARY OPINION AND ORDER; NOT INTENDED FOR PUBLICATION
Even assuming she had properly asserted an Equal Pay Act claim, summary judgment for
the District would still be appropriate. An employer is not liable under the Equal Pay Act where
any differential in pay was “based on any other factor other than sex.” 29 U.S.C. § 206(d)(1)
(2006). This Court has already concluded that there is substantial and undisputed evidence in the
record demonstrating that the District had legitimate, non-discriminatory reasons for lowering
the grade of the Building Operations Manager position from 15 to 14. This evidence has been
discussed supra with respect to the Title VII and DCHRA claims, and the Court need not repeat
it here.
CONCLUSION
For the foregoing reasons, Defendant’s Motion for Summary Judgment is granted. An
order accompanies this Memorandum. Digitally signed by Judge Robert L. Wilkins DN: cn=Judge Robert L. Wilkins, o=U.S. District Court, ou=Chambers of Honorable Robert L. Wilkins, email=RW@dc.uscourt.gov, c=US Date: 2012.03.30 19:39:01 -04'00' Date: March 30, 2012 ROBERT L. WILKINS United States District Judge