Dominick v. United States Department of Homeland Security

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

GAIL DOMINICK CIVIL ACTION

VERSUS NUMBER: 20-2713

CHAD F. WOLF, ACTING SECRETARY, SECTION: “L”(5)

UNITED STATES DEPARTMENT

OF HOMELAND SECURITY

ORDER AND REASONS

Before the Court is Defendant’s Motion for Summary Judgment. (Rec. doc. 15).

Plaintiff filed an opposition to the motion (Rec. doc. 18), and Defendant filed a reply. (Rec.

doc. 21). For the following reasons, the Court grants Defendant’s Motion for Summary

Judgment. (Rec. doc. 15).

I. Background

The Federal Emergency Management Agency (“FEMA”) is part of the U.S.

Department of Homeland Security and is responsible for, inter alia, administering and

coordinating any Federal governmental response to Presidentially-declared disasters

pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act (the

"Stafford Act"), 42 U.S.C. §§ 5121 et seq. FEMA’s role is to provide Federal assistance to

State and local governments in the event of a Presidentially-declared disaster or emergency

by providing, inter alia, “[f]ederal assistance programs for public and private losses and

needs sustained in disasters.” 44 C.F.R. § 206.3(a).

Responding to disasters requires specialized staffing. FEMA is thus authorized by

the Stafford Act to hire temporary personnel outside certain hiring requirements of the

federal personnel laws, found in Title 5 of the United States Code, to perform necessary

functions in support of the disaster site and to deliver emergency-related services for

which it does not have adequate full-time employees. 42 U.S.C. § 5149(b). Unlike

permanent, full-time staff, employees hired under the Stafford Act do not enter FEMA

through a competitive, merits-based hiring process. Therefore, they do not acquire the

same rights as those conferred upon individuals in the competitive service. See Willis v.

Dep’t of Homeland Security, 2009 MSPB LEXIS 7742 (M.S.P.B. Nov. 24, 2009).

Under the Stafford Act, FEMA employs Cadre On-Call Response Employees

(“COREs”), at-will employees hired pursuant to 42 U.S.C. § 5149(b) to provide continuity of

service for long-term, disaster-related projects and activities at FEMA’s fixed-site locations.

COREs are typically hired for two- or four-year term appointments with full Federal

benefits.

Plaintiff Gail Dominick worked as a CORE Administrative Assistant in FEMA’s Public

Assistance (“PA”) office in its Louisiana Integration and Recovery Office (“LIRO”) in New

Orleans since June 2006. FEMA opened the LIRO as the Louisiana Recovery Office

following Hurricane Katrina. FEMA hired Dominick, a White female, in January 2006. (Rec.

doc. 15-11 at pp. 11-12). The LIRO is a temporary office, which will eventually close, with

any remaining Louisiana disaster recovery work transitioned to FEMA’s regional office in

Denton, Texas. Dominick was aware that her position in New Orleans was not permanent.

(Rec. doc. 15-11 at p. 5).

In approximately late December 2016 to early January 2017, the New Orleans PA

office implemented new software that reduced the workload of three Administrative

Assistants, Bonnie Harpster, Avis Evans, and Dominick. (Rec. doc. 15-14 at pp. 104-05).

With the new software, project specialists could enter data directly into the computer

system and no longer needed the administrative staff to scan and upload project

worksheets. (Rec. doc. 15-8). As a result, Eddie Williams tasked a PA supervisor, Albert

Walters (Dominick’ third-line supervisor), with developing a rightsizing1 plan, which

included a workload assessment and a revised staffing plan to send to the Agency’s Office

of the Chief Component Human Capital Officer (“OCCHCO”) for approval. (Rec. doc. 15-14

at p. 105).

In January 2017, Williams held a meeting with the three PA Administrative

Assistants, Harpster, Evans, and Dominick, to inform them that a rightsizing would occur.

(Rec. doc. 15-11 at p. 8). In February 2017, Dominick received her 2016 annual

performance evaluation with a summary rating of “Achieved Expectations.” (Rec. doc. 15-4

at p. 110). Following the receipt of her evaluation, Dominick met with her supervisor,

Tiffany Martin, to express her feeling that her rating did not take into account all of her

additional job duties. (Rec. doc. 15-4 at. P. 54). Martin asked Dominick to email her a list of

the “additional duties.” (Id.). Dominick did not respond to Martin. (Rec. doc. 15-11 at p.

10). For the same rating period as Dominick had received her evaluation of “Achieved

Expectations,” Harpster and Evans had each been evaluated at “Exceeded Expectations.”

On or about April 18, 2017, Williams sent the rightsizing plan for approval to

OCCHCO, which is located at the Agency’s headquarters in Washington, D.C. and at an office

in Winchester, Virginia. (Rec. doc. 15-9). According to the rightsizing procedures, when

there is a reduction of individuals occupying the same position, the following criteria will

determine who will be retained:

A. The second line supervisor provides to OCCHCO the summary rating of the

COREs for the most recent performance evaluation year.

1 “Rightsizing” is the process of terminating employees when the workload diminishes. (Rec. doc. 1 at ¶ 51).

B. If individuals receive the same summary rating, the service computation

date is used to retain the individual with the longest service record.

(Rec. doc. 15-7 at p. 69).

Williams sent the rightsizing package, the assessment, performance evaluations, and

service computation records to OCCHCO to determine who would be retained and who

would be terminated. (Rec. doc. 15-14 at p. 279). Shannon Blair, an OCCHCO Branch Chief,

confirms that her office makes the determination on retention. (Rec. doc. 15-15 at ¶¶ 8-9).

On April 25, 2017, all three Administrative Assistants – Dominick, Harpster, and

Evans – attended another meeting at which they were given a General Advance Notice of

the rightsizing. (Rec. doc. 15-10). The letter provided a 60-day notice that a rightsizing

would occur at the Agency. (Id.).

After consideration of the 2016 performance evaluations and with seniority as the

tie breaker, FEMA ultimately decided to retain Evans and to terminate Harpster and

Dominick. One month later, on May 25, 2017, Dominick, along with Harpster, received

notices of termination of appointment. (Rec. doc. 15-4 at pp. 63, 66). The notices

encouraged Dominick and Harpster to apply for other jobs within the Agency. (Id.).

On October 3, 2020, Dominick filed this lawsuit against the Secretary of Homeland

Security as the head of the Department of Homeland Security and thus, indirectly,

responsible for FEMA. Dominick sues FEMA under Title VII of the Civil Rights of 1964, 42

U.S.C. § 2000e et seq., alleging that she was the victim of race-based rightsizing.

II. Legal Standard

Summary judgment is warranted when “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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v.

Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). “When

assessing whether a dispute to any material fact exists, [the Court] consider[s] all of the

evidence in the record but refrain[s] from making credibility determinations or weighing

the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-

99 (5th Cir. 2008). All reasonable inferences are drawn in favor of the nonmoving party,

but “unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and

conclusions of law’ are insufficient to either support or defeat a motion for summary

judgment.” Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985) (quoting

10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2738 (2d ed.

1983)); see also Little, 37 F.3d at 1075. “No genuine dispute of fact exists if the record

taken as a whole could not lead a rational trier of fact to find for the nonmoving party.”

EEOC v. Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014).

If the dispositive issue is one on which the moving party will bear the burden of

proof at trial, the moving party “must come forward with evidence which would ‘entitle it

to a directed verdict if the evidence went uncontroverted at trial.’” Int'l Shortstop, Inc. v.

Rally’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991) (quoting Golden Rule Ins. Co. v. Lease,

755 F. Supp. 948, 951 (D. Colo. 1991)). “[T]he nonmoving party can defeat the motion” by

either countering with evidence sufficient to demonstrate the “existence of a genuine

dispute of material fact,” or by “showing that the moving party’s evidence is so sheer that it

may not persuade the reasonable fact-finder to return a verdict in favor of the moving

party.” Id. at 1265.

If the dispositive issue is one on which the nonmoving party will bear the burden of

proof at trial, the moving party may satisfy its burden by pointing out that the evidence in

the record is insufficient with respect to an essential element of the nonmoving party’s

claim. See Celotex, 477 U.S. at 325. The burden then shifts to the nonmoving party, who

must, by submitting or referring to evidence, set out specific facts showing that a genuine

issue exists. See id. at 324. The nonmovant may not rest upon the pleadings but must

identify specific facts that establish a genuine issue for resolution. See, e.g., id.; Little, 37

F.3d at 1075 (“Rule 56 ‘mandates the entry of summary judgment, 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.’” (quoting Celotex, 477 U.S. at 322 (emphasis added)).

III. Legal Analysis

In this lawsuit under Title VII, Dominick complains that she was the victim of race-

based “rightsizing” when FEMA terminated her employment – and that of Harpster,

another White female – while retaining a Black female employee in the same position.

FEMA agrees that while Dominick can establish a prima facie case of discrimination, she

cannot establish that FEMA’s reason for her termination was a pretext for race.

Dominick carries the initial burden under Title VII of establishing a prima facie case

of racial discrimination. To establish a prima facie case of discrimination under Title VII, a

plaintiff may prove her claim either through direct evidence, statistical proof, or the test

established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

The McDonnell Douglas test requires the plaintiff to show: (1) she was a member of a

protected class, (2) she was qualified for the position she lost, (3) she suffered an adverse

employment action, and (4) that others similarly situated were more favorably treated. See

Geier v. Medtronic, Inc., 99 F.3d 238, 241 (7th Cir. 1996) (citing McDonnell Douglas, 411 U.S.

at 802). Once the employer articulates a legitimate, nondiscriminatory reason for the

employment action, however, the scheme of shifting burdens and presumptions “simply

drops out of the picture,” and “the trier of fact proceeds to decide the ultimate question:

whether plaintiff has proved ‘that the defendant intentionally discriminated against [her]’

because of [her] race.” St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993) (internal

citation omitted). The burden thus shifts to the employer to articulate some legitimate,

nondiscriminatory reason for the employee's termination. Id. at 509-10.

Here, FEMA maintains that Dominick cannot rebut the presumption that it

terminated her for a nondiscriminatory reason – i.e., the rightsizing. Dominick counters

with only one argument – that she needs more time for discovery to respond adequately to

the motion for summary judgment.

Before reaching the merits, such as they are, the Court first notes that this motion

was filed April 22, 2021. (Rec. doc. 15). Shortly thereafter, Plaintiff’s counsel asked

counsel for FEMA if he would be amenable to a 30-day continuation of the submission date

originally set for May 12, 2021. (Rec. doc. 21-1). Counsel for FEMA agreed and even

suggested continuing the submission date for approximately two months, for the express

purpose of allowing enough time for “the parties to hash out and deal with [Dominick’s]

intended course of discovery.” (Id.). Despite receiving said continuance, Dominick never

noticed a deposition, served any written discovery, or initiated any discussions about her

desire to conduct discovery until July 2, 2021, four days before her opposition to this

motion was due to be filed. (Rec. doc. 18-2).

Turning to the merits of the motion, the Court first observes that Dominick fails to

carry her burden of rebutting the presumption that she was terminated for a

nondiscriminatory reason because she effectively admits all of the materials facts asserted

by FEMA. Local Rule 56.2 requires that every opposition to a motion for summary

judgment include a “statement of the material facts which the opponent contends present a

genuine issue.” E.D. La. Loc. Civ. R. 56.2. Any facts in the moving party's statement that are

not controverted are deemed admitted. Id.; see also Brown v. Brown & Williamson Tobacco

Corp., 479 F.3d 383, 387 & n.1 (5th Cir. 2007), abrogated on other grounds by Altria Grp.,

Inc. v. Good, 555 U.S. 70 (2008) (applying Local Rule 56.2 to deem admitted facts not

specifically opposed in a statement of material facts); Abbott v. United States, No. CV 17-

01604, 2018 WL 1518448, at *3 (E.D. La. Mar. 28, 2018) (same).

Here, FEMA submitted a detailed list of facts that it claimed to be undisputed,

supported by citations to specific pieces of evidence in the record. (Rec. doc. 15-1).

Dominick did the same, but without including any record citations. (Rec. Doc. 18-1). Her

effort was so perfunctory as to essentially ignore FEMA’s undisputed facts. For example, in

response to FEMA’s uncontested facts, Dominick states, “Disputed because the fact is not

material to defendant’s motion and so no response is given to the truth or falsity of the

matter: 3, 4, 5, 6, 7, 9, 11, 12, 13, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30,

31, 32, 33, 34, 35, 36, 37.” (Rec. doc. 18-1 at p. 2) (emphasis added). The Court finds that

response to be ambiguous at best and notes that it is not up to the opponent of a properly

filed and supported summary judgment motion to decide what facts are “material to

Defendant’s motion” for the purpose of admitting or denying those facts. And, notably,

Dominick’s only list of disputed facts relates solely to her “need” to take additional

discovery. (Rec. doc. 18-1 at pp. 1-2).

Moreover, the Court finds that, substantively, Dominick’s claim that she needs more

time for discovery is belied both by the comprehensive Report of Investigation (Rec. doc.

15-4) that the EEOC produced in response to her EEO complaint as well as the discovery

conducted by the parties during the time the matter was pending before the EEOC. (Rec.

doc. 15-1 at ¶¶ 4-7). During said discovery period, Dominick deposed each of the three

management officials in her supervisory chain. (Id. at ¶ 7). These depositions – from

Tiffany Lashawn Martin (Rec. doc. 15-12), Eddie Williams (Rec. doc. 15-14) and Albert

Walters (Rec. doc. 15-13) – along with the deposition of Dominick herself taken by FEMA

(Rec. doc. 15-11), belie Dominick’s claim that she has not conducted discovery adequate to

respond to FEMA’s motion for summary judgment. Dominick’s counsel not only asked

questions of the management officials at their depositions, but he also examined his own

client during her deposition taken by FEMA.

The transcripts of these depositions, along with substantial documentary evidence,

are in the record in this case as exhibits to Defendant’s motion. In suggesting that she

“cannot adequately respond to defendant’s motion for summary judgment absent at least

the discovery [requested],” Plaintiff simply ignores (and asks the Court to ignore) the

copious evidence in the record – evidence that would simply be duplicates were the Court

to order Defendant to respond to Dominick’s eleventh-hour written discovery requests or

permit Plaintiff to re-depose witnesses who previously testified over hundreds of pages.

Motions under Rule 56(d) are “broadly favored and should be liberally granted”

because the rule is designed to “safeguard non-moving parties from summary judgment

motions that they cannot adequately oppose.” Culwell v. City of Fort Worth, 468 F.3d 868,

871 (5th Cir. 2006). The nonmovant, however, “may not simply rely on vague assertions

that additional discovery will produce needed, but unspecified, facts.” SEC v. Spence & Green

Chem. Co., 612 F.2d 896, 901 (5th Cir. 1980).

Notably for present purposes, a request to stay summary judgment under Rule

56(d) must “set forth a plausible basis for believing that specified facts, susceptible of

collection within a reasonable time frame, probably exist and indicate how the emergent

facts, if adduced, will influence the outcome of the pending summary judgment motion.”

Raby v. Livingston, 600 F.3d 552, 561 (5th Cir. 2010) (citing C.B. Trucking, Inc. v. Waste

Management Inc., 137 F.3d 41, 44 (1st Cir. 1998) (internal quotation marks and citations

omitted) (emphasis added)).2 Further, the Court may deny a Rule 56(d) motion if a party

had the opportunity to conduct discovery but did not diligently pursue it. Int’l Shortstop,

939 F.2d 1257, 1267 (5th Cir. 1991); see also Jacked Up, L.L.C. v. Sara Lee Corp., 854 F.3d

797, 816 (5th Cir. 2017).

The declaration of Dominick’s counsel – attached to her opposition – provides the

Court with no specific facts that any further discovery would reveal and fails to explain why

the documents in the record and discovery taken in the underlying proceeding are

inadequate to oppose the pending motion. Indeed, Dominick seeks to re-depose two

witnesses that she has already deposed – Martin and Williams. (Rec. doc. 18-4). She also

2 See also Access Telecom, Inc. v. MCI Telecomm. Corp., 197 F.3d 694, 720 (5th Cir. 1999) (“If it appears that

further discovery will not provide evidence creating a genuine issue of material fact, the district court may grant

summary judgment.”); Washington v. Allstate Ins. Co., 901 F.2d 1281, 1285 (5th Cir. 1990) (“This court has

long recognized that a plaintiff's entitlement to discovery prior to a ruling on a motion for summary judgment

is not unlimited, and may be cut off when the record shows that the requested discovery is not likely to

produce the facts needed by the plaintiff to withstand a motion for summary judgment.”); Int'l Shortstop, Inc. v.

Rally's, Inc., 939 F.2d 1257, 1267 (5th Cir. 1991) (“The nonmoving party must show how the additional discovery

will defeat the summary judgment motion, that is, will create a genuine dispute as to a material fact . . .”)

(emphasis added).

seeks to depose a separate fact witness – Jeremy Rose. However, the record is clear3 that

Dominick has had adequate time within which to depose Rose, yet chose not to do so,

which undermines her suggestion that his testimony is necessary.

Nor does counsel’s declaration offer an explanation for why the recent discovery

that she propounded on FEMA was served only two days before the submission date of the

motion for summary judgment, after having received a 60-day extension to do just that.

This Court simply cannot ignore that Dominick sought and obtained a continuance of the

submission date of the motion yet never propounded written discovery nor noticed a

deposition.

As the Fifth Circuit stated in Baker v. American Airlines – and as FEMA correctly

notes,

Baker’s argument fails because Rule 56 does not require that any

discovery take place before summary judgment can be granted. As a result, in

a motion to extend the time to respond to a motion for summary judgment,

the simple claim that discovery has not closed is insufficient. A trial court

cannot rule on a summary judgment motion where adequate discovery has

been denied a party, but any party claiming the need for additional discovery

to defend against a motion for summary judgment must make a sufficient

showing under Fed R. Civ. P. 56(f) [now Rule 56(d)].

For a party to mandate relief under Rule 56(f), the party must show

both why it is currently unable to present evidence creating a genuine issue

of fact and how a continuance would enable the party to present such

evidence. The . . . party may not simply rely on vague assertions that

additional discovery will produce needed, but unspecified, facts in opposition

to summary judgment. [Plaintiff] . . . has not made the required showing

under Rule 56(f) to merit the requested relief. Moreover, another criteria for

relief under Rule 56(f) is that the [plaintiff] must have exercised due

diligence in discovery “[T]he trial court need not aid non-movants who

have occasioned their own predicament through sloth.” Again, [plaintiff’s]

3 Dominick’s counsel did not contribute to that clarity when, in his opposition brief, he completely omitted

any mention of his request for a 30-day extension of the submission date and opposing counsel’s agreement

to a longer extension for the express purpose of resolving this very discovery issue. In fact, in requesting that

extension, counsel acknowledged that FEMA might not agree to a discovery plan, in which case the requested

extension “affords plaintiff about 1 extra month to oppose the agency’s [summary judgment] motion” –

presumably without the discovery he was requesting. (Rec. doc. 21-1).

actions justify denial of the requested relief. [Plaintiff] did not initiate

discovery until the last days of the allotted time. By that time, any responses

were not required until after the summary judgment briefing schedule was

completed. [Plaintiff] knew (or should have known) the briefing schedule

and the discovery period. Nevertheless, she failed to act diligently in the

pursuit of evidence. Her problem is one of her own making; Rule 56(f) [now

Rule 56(d)] precludes . . . relief in this situation.

430 F.3d 750, 756 (5th Cir. 2005) (alterations added).4

IV. Conclusion

Based on the Court’s thorough examination of the pleadings and the exhibits and

considering the controlling precedent, the Court finds that Dominick has failed to explain

with any specificity why she requires discovery beyond that conducted as part of the EEOC

proceeding and in any event failed to act diligently in the pursuit of such discovery.

Accordingly,

IT IS ORDERED that Defendant’s Motion for Summary Judgment (Rec. doc. 15) is

GRANTED.

New Orleans, Louisiana, this 2nd day of November , 2021.

MICHAEL B. NORTH

UNITED STATES MAGISTRATE JUDGE

4 Dominick raises no merits-based arguments to FEMA’s motion. This Court need not address the merits of

the motion for summary judgment.