Appendix — Brookens v. Solis

Supreme Court, U.S.

FILED

10-17 JUN 29 2010

OFFICE OF THE CLERK

APPENDIX

In the

Supreme Court of the United States

Benoit Brookens,

Petitioner,

Hilda L. Solis,

Secretary of Labor,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TABLE OF CONTENTS

March 31, 2010 Order of

The Court of Appeals for the District

of Columbia Circuit, En

at oe aay te gv obkgxckeseukceneed A-2

December 9, 2009 Order of the Court of

Appeals for the District of

ee disas c eta

Issue Raised by the Appellant

ode isacads kas oniebiancelens

U.S. District Court Opinion May 21,

ET Marea cnaue subeeeshaves aeederoneesi conus sick e

Applicable Constitutional Provisions,

Statutes,

hte aa ee a a co cara sudacwaeu kid A-19

Pleadings and Evidence Below:

Relevant Docket Entries ............ ee 4 |

Plaintiffs Exhibit (4) .....................A°23

United States Court of Appeals

For the District of Columbia

No. 09-5249

September Term 2009

1 :(08-cv-01612-ESH

Filed On: March 31, 2010

Benoit Otis Brookens, I],

Appellant

V.

Hilda L. Solis, Secretary, U.S. Department of

Labor,

Appellee

BEFORE: Sentelle, Chief Judge; and Ginsburg,

Henderson, Rogers, Tatel, Garland, Brown, Griffith,

and Kavanaugh, Circuit Judges

ORDER

Upon consideration of the petition for rehearing en

bane, and the absence of a request by any member of

the court for a vote, it 1s

ORDERED that the petition be denied.

Per Curiam

Michael C. McGrail

Deputy Clerk

A-2

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 09-5249

September Term 2009

1 :08-cv-01612-ESH

Filed On: December 9, 2009

Benoit Otis Brookens, IT,

Appellant

V.

Hilda L. Solis, Secretary, U.S. Department of

Labor,

Appellee

BEFORE: Garland, Brown, and Kavanaugh,

Circuit Judges

ORDER

Upon consideration of the motion for summary

affirmance, the opposition thereto, and the reply, it is

ORDERED that the motion be granted. The merits of

the parties' positions are so clear as to warrant

summary action. See Taxpayers Watchdog, Inc. v.

Stanley, 819F.2d 294, 297 (D.C. Cir. 1987) (per

curiam). Appellee has offered legitimate

nondiscriminatory and nonretaliatory reasons for the

failure to promote appellant and for the denial of

appellant's request for desk audits, work details, and

a within grade increase. Appellant has failed to

produce evidence sufficient for a reasonable jury to

find that those asserted non-discriminatory reasons

A-3

were not the actual reasons, and that the appellee

intentionally discriminated or retaliated against him.

See Kersey v. WMATA, No. 08-7040 (D.C. Cir. Nov.

10,2009); Jones v. Bernanke, 557 F.3d 670, 678 (D.C.

Cir. 2009); Brady v. Office of the Sergeant at Arms,

U.S. House of Representatives, 520 F.3d 490, 494

(D.C. Cir. 2008). The district court did not abuse

its discretion in denying appellant's request for

discovery, because that request lacked the requisite

specificity. See Messina v. Krakower, 439 F.3d 755,

762 (D.C. Cir .. 2006).

Finally, as the district court correctly observed, 42

U.S.C. § 1981 does not apply to actions against the

United States. See 42 U.S.C. § 1981 (c); Houri v.

United States,782 F.2d 227, 245 n.43 (D.C. Cir.

1986), vacated on other grounds, 482 U.S. 64 (1987).

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 09-5249

September Term 2009

Pursuant to D.C. Circuit Rule 36, this disposition will

not be published. ‘The Clerk is directed to withhold

issuance of the mandate herein until seven days after

resolution of any timely petition for rehearing or

petition for rehearing en bane. See Fed. R. App. P. 41

(b); D.C. Cir. Rule 41.

Per Curiam

STATEMENT OF ISSUES, CERTIFICATE OF

PARTIES, AND RELATED CASES

Statement of Issues to be Raised

Whether the District Court, citing Bell Atlantic Corp

v. I'wombley, 550 U.S. 544 (2007), applied the proper

standard for pleading facts in discrimination cases

under Title VII of the Civil Rights Act of 1991, (Title

VIJ) in dismissing the claims relating to the denials of

the desk audits and details of the plaintiff's

complaint, rather than relying on Swierkiewicz v.

Sorema N.A., 534 U.S. 506 (2002)?

Whether the District Court erred in failing to stay a

ruling on the summary judgment portion of the

defendant’s motion to dismiss pursuant to FRCP 56()

to provide the non-moving party, under FRCP (56(e),

adequate time for discovery as required by Celotex

Corp. v. Catrett, Administratrix of the Estate of

Catrett, 477 U.S. 317, 322 (1986)?

Whether the District Court erred in granting

summary judgment on all claims in plaintiffs

complaint?

Whether the District Court erroneously factually

characterized plaintiffs request for discovery as

“additional” discovery, Decision, p. 21, citing Messina

v. Krakower, 439 F.3d 755, 762 (D.C. Cir. 2006) when

no discovery at all was conducted by any of the

parties in the case?

Whether the District Court abused its discretion in

denying any discovery in this case?

A-6

Whether the trial court apphed an erroneous

standard in ruling, in denying a trial de novo, as

required by Chandler v. Roudebush, 425 U.S. 861, 48

L.Ed.2d 416, 96S. Ct. 1949, 1959-60, (1976), that the

issues were “fully litigated before the MSPB [Merit

Systems Protection Board] where plaintiff and

defendant, both of whom were represented by

counsel, introduced evidence’?

Whether the District Court erred in ruling that

“unresolved factual discrepancies” [Decision p. 20,

footnote 16], certificate of eligibles, the selection of

Anne Zollner and the promotion of ‘Tim Wedding were

irrelevant?

Whether the district court failed to properly apply

Burlington Industries, Inc. v. Elbert, 524 U.S. 742,

761-62 (1998) in ruling that the plaintiff ‘s allegation

of “denial of desk audits” (for promotion) and detatls

(with automatic pay increases after 30 days) and

promotion potential failed to constitute “adverse

employment action” under Tithe VII?

Whether the district court erred in dismissing “all

claims relating to the denials of the desk audits and

details and to summary judgment on all claims” in

plaintiff's complaint (Decision p. 11)?

Whether the District Court erred in ruling that a

federal employee could not bring a cause of action

under Title VII of the Civil Rights Act, Section 1981,

as amended in 1991, when The City of Milwaukee v

Saxbe, 546 F.2d 698 (Cir. )(1976) holds to the

contrary?

as J

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BENOIT BROOKENS

Plaintiff,

Civil Action No. 08-1612 (ESH)

HILDA L. SOLIS, Secretary,

Unified States Department of Labor,

Defendant.

ORDER

For the reasons set forth in the accompanying

Memorandum Opinion, defendant's Motion to

Dismiss Complaint or in the Alternative for

Summary Judgment [Dkt, #5, 6] is GRANTED,

plaintiffs Motion to Stay [Dkt. #9] is DENIED, and

this case is hereby DISMISSED with prejudice.

SO ORDERED.

Is]

ELLEN SEGAL HUVELLE

United States District Judge

DATE: May 21, 2009

Page 1 of 22

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BENOIT BROOKENS,

Plaintiff,

Civil Actien No. 08-1612 (ESH)

HILDA L. SOLIS, Secretary!,

United States Department of Labor,

Defendant.

MEMORANDUM OPINION

Plaintiff Benoit Brookens has again filed suit against

the Secretary of the United States Department of

Labor ("DOL") for race and age discrimination and

retaliation under Title VII, 42

US.C.. § 2000e et seg., and under the Age

Discrimination in Employment Act ("ADEA"),

29U.S8.C. § 621 et seg’ Ina prior lawsuit before this

Court, plaintiff raised claims of

1 : ™“ ° ‘ e ° ee

Hilda Solis, current Secretary of the United States

Department of Labor, is substituted for her predecessor. Fed. R.

Civ. P. 25(d).

Plaintiff also purports to bring this action under 42 U S.C. 8

198 L. However, as a federal employee, plaintiff may not bring an

employment discrimination claim pursuant to § 1981. Robinson

v. Chao, No. 05-5445,2006 U.S. App. LEXIS 12550, at *3 (D.C

Cir. May 2, 2006); Prince v. Rice, 453 F. Supp, 2d 14,25-27

(D.D.C. 2006).

discrimination and retahation regarding three

positions to which defendant failed to promote

him. On October 21, 2008, this Court granted

summary judgment in that case, and this ruling was

summarily affirmed. Broekens v. Chao, No. 08-0086

(D.D.C. Oct. 21, 2008) ("Brookens

Page 2 of 22

DD, atfd sub nom. Brookens v, Solis, No. 08-5527

(D.C. Cir. May 8,2009) (per curiam® In the instant

suit, plaintiff complains about a number of other

employment decisions, including denials of

promotions, detail requests, desk audits, and a

within-grade increase ("WGI") in pay. This matter

comes before the Court on defendant's Motion to

Dismiss Complaint or in the Alternative for Summary

Judgment and on plaintiff's Motion to Stay. For the

reasons set forth below, the Court will grant

defendant's motions and deny plaintiff's motion.

BACKGROUND

Plaintiff is an African-American male over age forty

who holds law and graduate business degrees from

Columbia University, New York, New York. (Compl,

paras. 7,8.) He has previously practiced law and

3 : ; :

In Brookens | this Court dismissed the suit at the outset,

finding that defendant had set forth legitimate,

nondiscriminatory reasons for its employment decisions, and

plaintiff had failed to adduce evidence that could allow a

reasonable trier of fact to conclude that those reasons were

pretextual.

A-10

taught as an adjunct professor at the University of

Virginia, Falls Church, Virginia. (/d. para. 9.) Starting

in 1990, he was employed by the DOL as an

International Economist in the Bureau of

International Labor Affairs ("ILAB") at grade GS, -12.

Ud. para. 10,13.)

In February 2007, defendant posted vacancy

announcement ILAB 07-068DE/M tor a Chiet of LLAB's

Trade Policy and Negotiations Division. (/. para. 29.)

Plaintiff submitted an application for the position in

March. (/d. 130; Declaration of Erick a Witt, dated

Jan. 5, 2009 ["First Witt Deci."] ,para. 14(b ).) That

same month, he also requested a GO-day detail to the

position, which was denied. (Compl. para. 31.) In

April 2007, plaintiff was notified that he was not

certified for the position because he failed to meet the

time-in-grade requirement. (/d. para. 32.) Plaintiff,

beheving that he was qualified, initiated a forma!

complaint, but the vacancy announcement was

End page 2

Page 3 of 22

cancelled in May 2007. Ud. paras. 33-34.) Around the

same time, plaintiff requested a second detail to the

position and a desk audit, both of which were denied.‘ (/d.

paras. 35-36.) In July 2007, defendant re-posted the

“According to defendant, "[ desk audits are reviews of an employee's

current responsibilities to determine whether an employee is actually

performing responsibilities at a grade level higher than the current

classification,” (Declaration of Gregory K. Schoepfe [Schoepfle Decl.]

para. 9.)

A-11

position for Chief of the Trade Policy and Negotiations

Division in vacancy announcement [LAB 07-157DE/M and

listed additionalqualifications that had not been included

in the prior vacancy announcement. (/d. paras. 37-38.)

Plaintiff was again determined to be unqualified for the

position. (See First Witt Decl. para. 15(d),) Instead,

Timothy Wedding, a white male whom plaintiff claims

was less qualified in the area of trade and policy

negotiations and needed training by plaintiff and others to

perform the duties of the position, was selected for the

vacancy. (Compl. paras. 41-42.) In August 2007, prior

to Mr. Wedding's appointment, plaintiffs request for a

detail as Acting Chief of the Trade Policy and

Negotiations Division was denied. (a. para. 24(c¢).)

Plaintiff then filed a formal administrative complaint

alleging race and age discrimination and reprisal based on

the DOL's determinations that he was unqualified for the

twice-advertised IAB vacancy and the denial of his

requests for details to that position and a desk

audit.5(/d. para. 43; Declaration of Naomi Barry-Perez

[Barry-Perez Decl.] Attach. 1.)

In December 2007, Mr. Wedding, who by that time had

been appointed Chief of the Trade Policy and Negotiations

Division, denied plaintiffs request for a desk audit and a

WGI. (Compl. paras. 24(e), 46.) Plaintiff thereafter

requested reconsideration of the denial of his WGI,

End page 3

° According to defendant, this administrative action was dismissed after

plaintiff filed the instant lawsuit. (Motion to Dismiss or for Summ. J. at

19.)

Page 4 of 22

which was denied. (See Schoepfle Decl. para. 11;

Def.’s Ex. A, Brookens v. Dept of Labor, MSPB No.

DC-531 D-08-0302-1-1, at 3 (May 1, 2008).) In March

2008, plaintiff filed a formal administrative complaint

of discrimination regarding the December 2007

denials of a desk audit and WGI. Both claims were

dismissed as untimely, and the WGI claim was also

dismissed because plaintiff had elected to file an

appeal with the Merit Systems Protection Board

("MSPB"). (Compl, para. 51; Barry-Perez Decl. para.

4.) The MSPB affirmed the DOL's decision to

deny plaintiffs WGI and also found that plaintiff had

failed to support his allegations of age discrimination

and reprisal, and thereafter, the Equal Employment

Opportunity Commission ("EEOC") upheld the

finding of no discrimination.* (Def.'s Ex. A, Brookens

v. Dep't of Labor, MSPB No. DC-531 D-08-0302-1-1

(May 1, 2008)); Brookens vy. Chao, No. 0320080075,

2008 WL 4107416 (B.E.0.C. Aug. 19, 2008).

In this case, in addition to alleging that these actions

constituted age and race discrimination, plaintiff also

alleges that defendant's actions were in retaliation for

his having filed complaints with the EEOC, the

MSPB, and this Court’? (See Com pl. paras. 18-25.)

Plaintiff did not allege race discrimination before the MSPB.

‘In his complaint, which was filed on September 19, 2008,

plaintiff also alleges that defendant issued a proposal on

September 5, 2008, to remove him from federal service in

retaliation for his prior EEO activity. (Compl, ~ 23.) However,

A=-13

Before the Court are defendant's motion to dismiss

the complaint or in the alternative for summary

judgment, plaintiffs opposition, and defendant's

reply, as well as plaintiffs motion to stay the

Court's ruling on defendant's summary judgment

motion pending completion of discovery,

End page 4

Page 5 of 22

defendant's opposition, and plaintiffs reply. The

issues before the Court, listed in the order in which

they will be addressed, are as follows:

(1) whether the DOL discriminated against

plaintiff based on his race and/or age or

retaliated against him based on his prior

EEO activity when the agency denied

his requests for details in March, May, and

August 2007 and his requests for desk

audits in May and December 2007;

(2) whether the DOL discriminated against

plaintiff based on his race and/or age or retaliated

against him based on his prior EEO activity when the

given that plaintiff filed his complaint just 14 days after

defendant's issuance of its proposal, plaintiff could not have

exhausted his administrative remedies prior to filing suit, a

requirement for claims brought under both Title VII and the

ADEA. See Washington v. Washington Metro. Area Transit

Auth., 160

F.3d 750, 752 (D.C. Cir. 1998). Therefore, the Court cannot

address this issue here.

agency failed to select him for the position of Chief of

the Trade Policy and Negotiation Division in

response to vacancy announcement ILAB

07-068DE/M or 1LAB 07-157 DE/M;

‘and

(3) whether the DOL discriminated against

plaintiff based on his race and/or age or retaliated

against him based on his prior EEO activity when the

agency denied his WGI in December 2007.

ANALYSIS

I. LEGAL STANDARDS

A. Motion to Dismiss

Acase must be dismissed pursuant to Federal Rule of

Civil Procedure 12(b)(6) for failure to state a claim

upon which relief can be granted if the complaint

does not plead "enough facts to state a claim to relief

that is plausible on its face." Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007). The allegations in plaintiff's

complaint are presumed true at this stage and all

reasonable factual inferences must be construed in

plaintiffs favor. Maljack Prods., Inc. v, Motion Picture

Ass'n of Am., Inc., 52 F.3d 373, 375 (D.C. Cir, 1995).

However, "the court need not accept inferences drawn

by plaintiff if such inferences are unsupported by the

facts set out in the complaint. Nor must the court

accept legal conclusions cast in the form of factual

allegations." Kowalv. MC] Commce'ns Corp., 16F.3d

1271, 1276 (D.C. Cir. 1994). To survive a motion to

End page 5

Page 6o0f 22

dismiss, the factual allegations in the complaint

"must be enough to raise a right to relief above the

speculative level." Twombly, 550 U.S, at 555. In this

case, plaintiff is proceeding pro se. The Court is

therefore mindful that "complaints or motions

drafted by pro se plaintiffs are held to ‘less stringent

standards than formal pleadings drafted by lawyers.”

Shankar v. ACS-GSI, 258 Fed. Appx. 344, 345 (D.C.

Cir, 2007) (quoting Greenhill v, Spellings, 482 F.3d

569, 572 (D.C. Cir. 2007»). Plaintiff, however, is a

lawyer and an experienced litigant, having pursued

the employment discrimination lawsuit in

Brookens I, as well as numerous other lawsuits before

this Court and the D.C. Circuit.®

B. Motion for Summary Judgment

A party is entitled to summary judgment if the

pleadings on file, together with the affidavits, if any,

show 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. Fed. R. Civ, P. 56(c). Material facts

® See, e.g., Brookens v. Whitc, 836 F.2d 653 (D.C. Cir, 1987);

Brookens v. us, 627 F.2d 494 (D.C. CiL 1980); In re Brookens,

No. 04-145 (D.D.C. Mar. 9, 2004); Brookensv. Local I2

AFGE, AFL-CIO, No. 01-1366 (D.D.C. Mar. 28, 2002); Brookens v.

Binion, No. 98-838 (D.D.C. Feb. 9, 1999), rev'd, No. 99-7030, 2000

U.S. App. LEXIS 2055 (D.C. Cir. Jan. 28, 2000):

Brookens v. Schultz, No. 86-3452 (D.D,C. Oct. 9, 1992), afd sub

nom. Brookens v. Christopher, No. 92-5458, 1993 U.S. App.

LEXIS 21231 (D.C. Cir. June 8, 1993). In each of these cases,

plaintiff proceeded pro se. Moreover, while plaintiff ultimately

obtained counsel in Brookens [he initially filed suit pro se.

are those that "might affect the outcome of the suit

under the governing law." Anderson v. Liberty Lobby.

Ine., 477 U.S. 242, 248 (1986). The party seeking

summary judgment bears the initial burden of

demonstrating the absence of a genuine issue of

material fact. Celotex Corp. v. Catrett, 477 U.S.

317,322 (1986). In considering whether there is a

triable issue of fact, the Court must draw all

reasonable inferences in favor of the non-moving

party. Anderson, 477 U.S. at 255. The party opposing a

motion for summary judgment, however, "may not

rely merely on allegations or

End page 6

Page 7 of 22

denials in its own pleading: rather, its response

must...set out specific facts showing a genuine issue

for trial." Fed. R. Civ. P. 56(e)(2). The non-moving

party must do more than simply "show that there is

some metaphysical doubt as to the material facts."

Matsushita Elec. Indus. Co., Ltd. vy. Zenith Radio Corp.,

475 U,S. 574, 586 (1986). Moreover, "any factual

assertions in the movant's affidavits will be accepted

as being true unless [the opposing party] submits his

own affidavits or other documentary evidence

contradicting the assertion." Neal v. Kelly, 963 F.2d

453, 456 (D.C. Cir.1992) (quoting Lewis v, Faulkner,

689 P,2d 100, 102 (7th Cir. 1982)).

Title VII and the ADEA

Z. Prima Facie Case

To succeed on a claim of discrimination under Title

Vil and the ADEA, a plaintiff has the initial burden of

establishing a prima facie case of discrimination by

showing that "( 1) [he] is a member of a protected

class; (2) [he] suffered an adverse employment action;

and (3) the unfavorable action gives rise to an

inference of discrimination." Ste//a v. Mineta, 284

F.3d 135, 145 (D.C. Cir. 2002); see also McDonnell

Douglas Corp. v, Green, 411 U.S. 792, 802 (1973);

Carter v. George Washington Univ., 387 F3d 872, 878

(D.C. Cir. 2004) (applying McDonnell Douglas

framework to ADEA claims). A prima facie case of

retaliation requires a plaintiff to show that "(1 ) [he]

engaged in statutorily protected activity; (2) [he]

suffered an adverse employment action; and (3) there

is a causal connection between the two." Zaylor v.

Small, 350 ¥. 2d 1286, 1292 (D.C. Cir. 2003); see also

42 U.S.C. § 2000e-3(a). Should plaintiff fail to make

out a prima facie case with respect to any claim, that

claim must be dismissed.

Pursuant to' this standard, to make out a prima facie case

of either discrimination or retaliation, plaintiff must

show an adverse action, which is defined as "a

significant chunge in employment status, such as

hiring, firing, failing to promote, reassignment with

significantly

End page 7

Page 8 of 22

different. responsibilities, or a decision causing

significant change in benefits." Douglas v, Preston,

559 F.3d 549, 552 (D.C. Cir. 2009) (citation and

internal quotation marks omitted).

"An employee suffers an adverse employment action

if he experiences materially adverse consequences

affecting the terms, conditions, or privileges of

employment or future employment opportunities

such that a reasonable trier of fact could find

objectively tangible harm." Forkkio vy, Powell, 306 F

3d 1127, 1131 (D.C Cir. 2002) (citing Brown v. Brody,

199 F 3d 446, 457 (D.C Cir. 1999)) In most cases, a

tangible employment action "inflicts direct economic

harm." Douglas, 559 F.3d at 552 (quoting Burlington

Indus., Inc. v. Ellerth, 524 U.S. 742, 762 (1998)).

However, where the alleged significant change in

employment status is not obvious, "an employee must

go the further step of demonstrating how the decision

nonetheless caused such an objectively tangible

harm," which requires a court "to consider whether

the alleged harm is unduly speculative," Jd at 553.

For a retaliation claim, the concept of adverse action

is broader than in the discrimination context and

"can encompass harms unrelated to employment or

the workplace 'so long as a reasonable employee

would have found the challenged action materially

adverse." Rattigan v. Holder, No, 04-2009,2009 U.S.

Dist. LEXIS 26495, at *27 (D.D.C. Mar. 30, 2009)

(quoting Baloch v. Kempthorne, 550 F. 2d 1191, 1198

n.4 (D,C. Cir. 2008) (citation and internal quotation

marks omitted). To be materially adverse, the action

must be one that "well might have ‘dissuaded a

reasonable worker from making or supporting a

charge of discrimination." Burlington N. & Santa Ke

ee

Ry. Co. v, White, 54% O.S. 53, 68 (2006) (quoting

Rochon v. Gonzales, 438% FJd 1211, 1219 (D.C. Cir

2006)).

ind page 8

Page 9 of 22

a Pretext

Once a plaintiff establishes a prima facie case, the

burden shifts te the defendant to produce evidence

that the challenged action was taken for a legitimate,

nondiscriminatory reason. See Holcomb v. Powell, 433

F. 2d 889, 896 (D.C. Cir. 2006). Once a defendant has

done so, the presumption of discrimination "simply

drops out of the picture," and "the plaintiff must

show that a reasonable jury could conclude from all of

the evidence that the adverse employment decision

was made for a discriminatory reason." /d. at 896°97

(citations omitted). "All of the evidence" may include

(1) evidence establishing the plaintiffs prima Lacie

case; (2) evidence attacking the employer's proffered

explanation for its actions; and (3) any further

evidence of discrimination that may be available to

the plaintiff, such as independent evidence of

discriminatory statements or attitudes on the part

ofthe employer.® /d. at 897.

*As cautioned by the D.C. Circuit in Brady v. Office of the Sergeant

at Arms, 520 F.3d 490,494 (D.C. CIL 2008), when reviewing a

motion for summary judgment in a discrimination case, a

district court need not - and should not - evaluate a plaintiff's

prima facic showing where a defendant sets forth a legitimate,

nondiscriminatory reason for its conduct. Brady v. Office of

the Sergeant at Arms, 520 F3d 490, 494 (D.C, Cir. 2008).

A-20

HM. = PLAINTIFE'S CLAIMS

Applying these standards, the Court will now turn to

plaintiffs claims. With respect to Plaintiff's claims

regarding the denials of a GO-day detail in March

2007 and then again in May 2007 and a detail in

August 2007 and the denial of desk audits in May and

December 2007,defendant argues that itis entitled to

dismissal because these denials do not. constitute an

adverse action, or in the alternative, summary

judgment should be entered because plaintiff has

failed to rebut defendant's legitimate,

nondiscriminatory reasons for these denial:

Kind page 9

Page 10 of 22

With respect to plaintiff's claims regarding

defendant's failure to promote him on two occasions

to the Chief of Trade Policy and Negotiations

Division, which is a GS-18 Supervisory International

Mconomist position, and defendant's denial of a WG]

in December 2007, defendant argues that itis entitled

to summary judgment because plaintiff has failed to

Instead, the court must look to whether the plaintiff ha:

“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

againet ithe plaintiff] " Id. (citations omitted): Jones v

sernanke, 557 F.3d 670, 678 (D.C. Cir. 2009) (applying same

principles to retaliation claims)

cast doubt on defendant's nondiscriminatory

explanation that plaintiff lacked the necessary

qualifications for a promotion to this position, and he

could not qualify for a WGI due to his deficient

performance rating.

In response, plaintiff essentially takes the position

that the Court should stay ruling on the motion for

summary judgment since he has not had the chance

to take discovery and that he should be able to get

statistical data as to defendant's policy and practices

relating to "hiring, promotion, desk audits, step

increases, grade increases, performance evaluation

and firing practices." (PI.'s Mot. to Stay at 2.) In his

reply, plaintiff also argues that the allegations of his

complaint are satisfactory since desk audits and

details "fall in the Court's definition of adverse

employment actions," (see P1.'s Reply at 4), and that

summary judgment should be denied on the grounds

that he has satisfied the requirements of Fed, R, Civ,

P. 56(f. (Vd. at 3.) In particular, plaintiff asserts that

he expects "that discovery will be able to disclose

genuine issues of material fact" (7d. at 2), and in

particular, in his affidavit, he claims that discovery

will reveal, inter alia, that he was the victim of

discrimination and retaliation, that the reasons for

the various actions by defendant are false, that

plaintiff was qualified for the two positions, that he

was treated less favorably than younger white

employees, and that there is a history of race and age

End page 10

Page 11 of 22

discrimination at the DOL/ILAB. (See Affidavit of

Benoit Brookens in Support of Motion to Stay and

Discovery [Brookens Aff.] paras. 6-14.) As discussed

more fully herein, the Court is persuaded that

defendant is entitled to dismissal of the claims

relating to the denials of the desk audits and the

details and to summary judgment on all claims on the

grounds that plaintiff has offered no rebuttal to

defendant's legitimate, non-discriminatory

explanations for its actions nor is he entitled to Rule

56(f) discovery.

A. Denial of Detail and Desk Audit

Requests

In his reply, plaintiff claims, without explanation,

that "a desk audit and detail fallin the Court's

definition of adverse employment action’ (PI.'s Reply

at 4.) But tn his complaint, plaintiff alleges that a

detail to the position of Trade Policy and Negotiations

Division Chief would have "provided] him training,

experience and promotional or advancement

opportunities" and, likewise, that a desk audit would

have "assessled] his competence and performance for

purposes of promotional or advancement

opportunities." (Compl. para.16(e), (f).) Even

assuming the truth ofthese allegations, as one must

at this stage, plaintiff's claims as to the denial of desk

audits and details do not constitute adverse

employment actions, and thus, he cannot establish a

prima facie case for either discrimination or

retaliation. Paced with similarly vague and

speculative assertions, the D.C. Cireuit has held that

the denial of a detail does not constitute an adverse

action. See Maramark v, Spellings, No. 06~5099, 2007

U.S. App. LEXIS 22545, at *2 (D.C. Cir. Sept. 20,

A-23

2007) (denial of a five-month detail that might have

allowed plaintiff to secure a permanent position was

"too speculative to constitute an objectively tangible

harm" (citation and internal quotation marks

omittedj); Stewart v. Evans, 275 P.3d 1126, 1135 (D.C.

Cir. 2002) (denial of "acting" designation cannot be

considered an adverse

End page 11

Page 12 of 22

employment action because "this type of temporary

designation 1s not one of the terms, conditions, or

privileges of employment contemplated by Title VII");

Taylorv. FDIC, 132 ¥.3d 753, 764 (D.C. Cir. 1997)

(repeated failure to designate plaintiffs as acting

section chief when their superiors temporartly left

the office is insufficient to constitute an adverse

employment action): see also Nichols v. Truscott, 424 F.

Supp. 2d 124, 136-37 (D,D.C. 2006) (the denial of

requests for detail assignments and requests to serve

as Acting Branch Chief did not constitute

adverse employment action). Similarly, the Fifth

Circuit has found that the denial of a desk audit is

"not an actionable ‘adverse personnel action’ under

Title VI!." Dollis v. Rubin, 77 F.3d 777, 782 (5th Cir.

1995); see also Douglas, 559 F. 2d at 553 (department

head's failure to recommend employee for a

Presidential Rank Award did not constitute adverse

employment action);

Edwardsv, EPA, 456 F, Supp. 2d 72, 86 (D.D.C. 2006)

("[Tlo be adverse, the denial of a travel or training

opportunity must have a discernible, as opposed to a

speculative, effect on the terms, conditions, or

privileges of one's employment."). This result does not

change under the more lenient standard set forth in

White for retaliation claims. For, as noted in Wuhite,

the anti-retaliation provision protects an individual

not from all retaliation, but from retaliation that

produces an injury or harm." 548 U.S. at 67. Here,

plaintiff does not allege any injury or harm resulting

from these denials, and whether any materially

adverse consequences could have resulted from these

denials is mere speculation.!¥

End page 12

Page 13 of 22

Sewell v. Chao, 532 F. Supp. 2d 126, 137 (D.D.C.

2008) (denial of training and transfer to anoth

department did not constitute adverse employment

actions for purposes of a retaliation claim), affd sub

In fact, neither a detail nor a desk audit would have qualified

plaintiff for the position of Chief of the Trade Policy and

Negotiations Division, which he sought in March and July 2007.

A temporary detailin March, May, or August 2007 or a desk

audit in Mayor December 2007 simply would not have enabled

plaintiff to meet the time-in-grade requirement under merit

staffing procedures or the one-year specialized experience

requirement under delegated examining procedures. See Section

II(B) znfra, Moreover, the first vacancy announcement

{[LAB 07-068) was cancelled by defendant in April 2007, before

plaintiff made either desk audit request, and the second vacancy

announcement (ILAB 07-157) was filled prior to plaintiffs

second desk audit request. (See First Witt Decl. para. 14(k), 16.)

Thus, neither desk audit request could have had any impact on

plaintiff's consideration for the position in the first vacancy

announcement, and the second request could not have impacted

his consideration for the position in the second vacancy

announcement.

nom. Sewell v. Hugler, No. 08-5079, 2009 U.S. App.

LEXIS 4136 (D.C. Cir. Feb. 25, 2009) (per curiam).

Moreover, even if plaintiff could make out a prima

facie case of discrimination or retaliation on the basis

of the denials of details and desk audits, he has failed

to rebut the legitimate reasons defendant has

proffered for the denial of the details and the

December 2007 desk audit. Specifically, with respect

to the details, Gregory K. Schoepfle, the Director of

the Office of Trade and Labor Affairs in ILAB, states

that after the retirement of the then Chief of the

Trade Policy and Negotiations Division in December

2006, he designated his Deputy Director, Carlos

Romero, a GS-15 Supervisory International

Economist, to serve as acting chief of the division

until the position could be permanently filled,

(Schoepfle Decl. para. 5.) Thus, Mr. Romero

concurrently served in both positions until the

division chief position was filled in September 2007,

id.) While Mr. Romero took a two-week vacation in

August 2007, Mr. Schoepfle states that he, as office

director, supervised the activities of the division

during that time. (/d. para. 8.) Accordingly, because

no detail opportunities were available when plaintiff

made his requests, Mr. Schoepfle denied them. (/d.

paras. 6-8.) Plaintiff has offered no evidence to

contradict these assertions or to otherwise raise an

inference that the reasons offered by Mr. Schoepfle

were pretextual.

End page 13

Page 14 of 22

Moreover, with respect to the December 2007 desk

audit request, Mr. Wedding, plaintiff's supervisor at

the time, indicates that plaintiff requested the desk

audit the day after the denial of his WGI, which in

turn was based on his most recent performance

rating of "Minimally Satisfactory" and subsequent

performance deficiencies. (See Declaration of Timothy J.

Wedding [Wedding Decl.] paras. 5-6; Def.'s Ex. A,

Brookens v. Dep't of Labor, MSPB No. DC-531 D-08-

0302-1-1, at 7 (May 1,2008); see a/so First Witt Decl.

para. 18.) Mr. Wedding states that he denied

the request because he "did not believe there had

been any significant material changes to [plaintiff's]

position" and because plaintiff performed significantly

less work than other International Economists."

(Wedding Decl. para.7.) "An employer is entitled to

rely on his perception of an employee's work

performance." Vasilevsky v, Reno, 31 F. Supp. 2d 143,

149 D.D.C. 1998). Plaintiff has made no effort to

dispute these assertions, even though they involve

matters clearly within his knowledge. Accordingly,

even if plaintiff has established prima

facie case, defendant would still be entitled to

summary judgment with respect to the denial of

plaintiff's detail and December 2007 desk audit

requests.

B. Failure to Promote

Plaintiff alleges that defendant's failure to select him

for the Chief of the Trade Policy and Negotiations

Division position posted first in vacancy

announcement ILAB 07-068DE/M

and again in vacancy announcement ILAB 07.

157DE/M was the result of discrimination and

retaliation for his protected activity. In response,

defendant moves for summary judgment on the

basis that plaintiff was unqualified for both of these

positions.

To support its claim, defendant submits the

declaration of Ericka Witt, the Human Resources

Specialist who was responsible for staffing both

vacancy announcements. Ms. Witt

indicates that the position, which was for a GS-15

Supervisory International Economist, was

End page 14

Page 15 of 22

announced under delegated examining (DE) and

merit staffing (MS) procedures.!! (First Witt Decl.

paras. 5,6.) She explains these procedures as follows:

Vacancies at Grade OS-12 and higher that are in the

competitive service and are advertised under MS

appointment are subject to a time-in-grade cligibility

requirement pursuant to which the applicant must

have 52 weeks of experience at the next lower GS

grade level, in this case OS-14. (/d. para. 10.) While

vacancies filled under DE procedures do not contain

this time-in-grade requirement, applicants must

meet both basic requirements and specialized

experience criteria listed in the Office of Personnel

Management's Individual Occupational

“Ms. Witt explains that "DE" refers to the type of appointment

used for the general public to apply to competitive service

vacancies, while "MS" refers to the type of appointment by

which federal employees apply to vacancy announcements in

either the competitive service or excepted service. (First Witt

Decl. para. 7, 10.) However, federal employees may apply under

either DE or MS procedures or both. Vd. para. 77.)

Requirements. (/d. para. 17.) Specialized

requirements for GS-13 and higher positions in the

GS-110 Economist series require candidates to

possess one year of specialized experience equivalent

to the next lower grade level, in this case GS-14.

(d.para. 9.)

Ms. Witt states that plaintiff applied under DE and

MS procedures for vacancy announcement JLAB

07-068 and under DE procedures for vacancy

announcement ILAB 07-157. (/d para. 12.) He was

neither certified nor were his application materials

forwarded to the selecting official for consideration in

either case.!2 (See id. paras.14( d), (j), 15( d).) With

respect to the ILAB

End page 15

Page 16 of 22

Ms. Witt states that she received 12 applications for vacancy

announcement ILAB 07- O68DE and six applications for vacancy

announcement ILAB 07-068M. (First Witt Decl. 14(c).) Based on

her review, she certified three of the candidates under DE

procedures and sent their applications to the selecting official

for consideration. Two others met the cut-off score but

were not certified; four applicants did not meet the cut-off score;

and three applicants, including plaintiff, were deemed

unqualified. (/d. para. 14(d).) Ms. Witt does not indicate whether

she certified any applicants under MS procedures. She indicates

that she received 12 applications for vacancy announcement

ILAB 07-157DE. Based on her review, she certified four of the

candidates and sent their applications to the selecting official for

consideration. Eight applicants, including plaintiff, were

deemed unqualified, (@d para 15(d).)

A-29

07-068 vacancy announcement, Ms. Witt indicates

that she determined that plaintiff, a GS-12 employee,

was not qualified under the DE appointment criteria

because he did not possess one year of specialized

experience equivalent to the GS-14 level. (/d. paras.

14(f)-(i).) She explains that plaintiff's adjunct teaching

experience, which he contends qualifies him "for

higher level promotional and advancement

opportunities" (Cornpl. ~ 160»), was not sufficient to

satisfy the specialized experience requirement. (/d.

paras. 14(g), 15(g) and Attach 1.) Similarly. Ms. Witt

determined that plaintiff was unqualified for the

ILAB 07-068 position under the MS appointment

criteria because he did not have 52 weeks of time-

in-grade experience at the GS-14 level.!3 (7d para.

14)).)

Plaintiff appears to suggest that defendant's ulterior motive

for cancelling vacancy announcement ILAB 07-068 was to avoid

hiring him, (See Compl. paras. 29-40.) Defendant, however, has

established that plaintiff was unqualified while several others

applicants did meet the requirements of the position. Moreover,

defendant has provided a nondiscriminatory explanation for

cancelling the vacancy, which plaintiff has failed to rebut

Specifically, Mr. Schoepfle, who was the selecting officer,

indicates that after reviewing the Certificate of Eligibles for the

position, which did not include plaintiffs name, he decided to

cancel the posting with the intention of redescribing the skill

and experience questions and thereafter reposting the position

in order to attract a more diverse candidate pool. (See Schoepfle

Decl. para. 3.) Summary judgment is appropriate when an

employer cancels a vacancy for legitimate, nondiscriminatory

reasons. See e.g., Lester v. Natsios, 290 F. Supp. 2d 11,26

(D,D.C. 2003) (granting summary judgment when "defendant

has convincingly explained that the vacancy was cancelled

because the responsible manager wanted to recast the position

differently, as to both its grade and function. Plaintiff offers no

rebuttal of this explanation, nor does she cast any doubt on its

validity."); Carter v. Pena, 14 F. Supp. 2d 1,6 (D.D.C. 1997)

Likewise, Ms. Witt determined that plaintiff was

unqualified for the [LAB 07-157 position under the

DE appointment criteria for the same reason that he

was unqualified for the

Kind page 16

Page 17 of 22

ILAB 07-068 position - - he did not possess one year of

specialized experience at the GS-14 level. 7d” 15( e),

(g)-G).) Ms. Witt indicates that Mr. Wedding "was selected

from the certificate of eligibles for vacancy announcement

ILAB 07-157M." (/d. para. 16.) This explanation more

than satisfies the DOL's burden of articulating a

legitimate,nondiscriminatory reason for its failure to

promote plaintiff to the position in response to either of

these vacancy announcements. Accordingly, plaintiff was

required to set forth evidence that "could allow a

reasonable trier of fact to conclude that [defendant's]

proffered reasonls] [were] a pretext for discrimination."

Paquin v, Fed. Nat Mortgage Ass 'n, 119 F 3d 23, 27-28

(D.C Cir. 1997). Plaintiff, however, has made no attempt

to rebut defendant's reason. In his complaint, plaintiff

alleges that Mr. Wedding had "lesser qualifications in

'trade policy and negotiations" than plaintiff and that Mr.

Wedding, in order "to perform the duties of the position,

was in need of formal and informal] training" by plaintiff

and others. (Comp! para. 41,-42.) However, plaintiff has not

("[P]laintiff failed to establish a prima facie case because no one

was ever hired for the vacant position, and the vacancy was

ultimately canceled."), afd, 1998 WL 315616, at *1 (D,C. Cir.

Apr. 8, 1998).

A-3)

presented any evidence to refute defendant's showing that

plaintiff did not satisfy the requirements for the

position.!4

Thus, because plaintiff "has produced no direct evidence of

discriminatory [or retaliatory] animus by the

decisionmaker and failed to produce any other evidence

that discredits the underlying reason" for his failure to be

selected, defendant is entitled to summary judgment on

these claims. Baloch v. Kempthorne, 550 F.3d 1191,

1198 (D.C. Cir. 2008).

End page 17

Page 18 of 22

C. Denial of WGI

Plaintiff also alleges that he was subjected to

discrimination based on his race and age and to

retaliation based on his prior EEO activity when he

was denied a WGI in December 2007, Defendant

responds by arguing that plaintiffs WGI was properly

withheld because his most recent rating of record at the

time was "Minimally Satisfactory," which evidenced

less than satisfactory performance, (See Schoepfle

In Brookens 1, this Court also found that plaintiff could not show

pretext for defendant's. failure to promote him to the position of a

GS-14/GS-15 Deputy Director of the Office of International Relations,

which was advertised under MS procedures, because he failed to meet

the time-in-grade requirement for the job, since he did not possess the

required 52 weeks of time: in-grade experience at the GS-14 level, This

finding was affirmed on appeal and is equally binding here as to the

position advertised in the ILAB 07-068 vacancy announcement, since

plaintiff also applied for that position under MS appointment criteria.

A\-32

Decl. paras. 10-11; Wedding Decl. para. 5; First Witt

Decl., para. 18.)

Plaintiffs overall "Minimally Satisfactory"

performance rating was based on the "needs to

improve" rating that he had received on element 4 of

his performance standards!® (Def.ts Ex, A, Brookens

v, Dep't of Labor, MSPB No. DC-531 0-08-0302-1-1,

at 2 (May 1, 2008).) According to Mr. Wedding, he

denied plaintiffs WGl based on his deficient

performance of element 4 as evidenced by his

performance rating anc on perceived subsequent

performance deficiencies, including plaintiffs alleged

continued unwillingness to accept additional

assignments. (See id.; Wedding Decl, para. 5.) Mr.

Schoepfle indicates that he upheld the denial of

plaintiffs WGI on a similar basis, (See Schoepfle Decl.

para. 11 (stating that he upheld the denial of

plaintiffs WGI "because he failed to achieve at least

'Meets' performance in a critical element of his

performance evaluation plan").

A rating of "Minimally Satisfactory” indicates that

the employee "[nleedls] to improve

Takes on assignments given, and assumes other

responsibilities as work schedule permits and with supervisor's

approval. Otherwise works cooperatively and effectively with

colleagues in ILAB and in the broader community of

stakeholders to promote the mission and strategic objectives of

the Bureau.

(Def 's Ex. A, Brookensv. Dep ‘t of Labor, MSPB No. DC-531

D-08-0302-1-], at 2 (May 1,2008),)

A-33

performance for one or more clements," (See

Schoepfle Decl., Attach. 1) Element 4 was:

Kind page 18

Page 19 of 22

Pursuant to regulations governing WGls:

An employee paid at less than the maximum rate of

the grade of his or her position shall earn

advancement in pay to the next higher step of the

grade or the next higher rate within the grade ... upon

meeting the following ... requirements established by

law:

(a) The employee's performance must be at an

acceptable level of competence. ... To be determined

at an acceptable level of competence, the employee's

most recent rating of record ...shall be at least Level 3

("Fully Successful" or equivalent).

5 C.F.R. § 531 404(a); see also 5 U.S.C. § 5335(a)(B)

(providing for periodic within grade step increases for

federal employees provided that "the work of the

employee is of an acceptable level of competence as

determined by the head of the agency"). Accordingly,

because plaintiff was found not to be performing at an

acceptable level of competence, defendant claims that

his WGI was properly denied.

By articulating a legitimate nondiscriminatory

reason for its denial of plaintiff's WGI, defendant has

satisfied its burden. Once again, however, plaintiff

makes no attempt to refute defendant's rationale.

Instead, he claims that he needs discovery in order to

I-34

respond. This claim is especially hollow with respect

to the denial of his WGL This issue was fully litigated

before the MSPRB, where plaintiff and defendant, both

of whom were represented by counsel, introduced

evidence. (See Def's ix, A, Brookens v. Dep’ of Labor,

MSPB No. DC-531D-08-0302-1-1, at 5-7,11-12 (May

1,2008) (rejecting plaintiffs claim of discrimination

and retaliation with respect to the WGI based on a

record that included testimony by plaintiff and other

DOL employees and documentary evidence).) Given

these circumstances, plaintiff's refrain that he need

discovery before he can offer any rebuttal to

defendant's evidence cannot be sustained. Defendant,

therefore, is entitled to summary judgment on this

claim.

Kind page 19

Page 20 of 22

D. Rule 56(1) Request for Discovery

As he did in Brookens I, plaintiff attempts to stave off

summary judgment by invoking Rule 56(), and he

also moves to stay the proceeding on the ground that

he needs discovery to obtain "statistical data as to

Defendant's hiring, promotion, desk audits, step

increases, grade increases, performance evaluation

and firing practices." (Pl.'s Mot. to Stay at Z; see also

srookens Aff. 15.) In addition, plaintiff avers that

discovery will enable him to prove his case by

revealing discrimination and retaliation inthe DOL’

treatment of plaintiff, as well as the lack of black

A-3¢

supervisors and professionals and a history of

discrimination in ILAB.!® (See Brookens Aff., paras.

6-14.)

While summary judgment ordinarily "is proper only

after the plaintiff has been given adequate time for

discovery," First Chicago Int ‘lv. United Exch. Co., 836

F.2d 1375, 1380 (D.C. Cir. 1988), under Rule 56(£), a

party opposing a summary judgment motion must

"showl] by affidavit that, for specified reasons, it

cannot present facts essential to justify its

opposition,” In this regard, the opponent of summary

judgment must provide the "requisite specificity" to

justify his request for discovery. See Brookens v. Solis,

No. 08-5527 (D.C. Cir, May 8, 20(9) (citing

End page 20

‘Plaintiff also points to various "unresolved factual

discrepancies,” which he claims could be resolved through

discovery. The alleged discrepancies involve (1) a Certificate of

Eligibles pursuant to which plaintiff was deemed eligible in July

2004 for a OS-14 position as a policy analyst with another federal

agency; (2) the selection of Anne Zollner, "a non-economist,

younger white female" as the successor to Timothy Wedding as

Chief of the Trade Policy and Negotiations Division; and (3) the

promotion of Mr. Wedding, "a younger white male," to

Deputy Director of the Office of Trade and Labor Affairs, (Opp'n

at 2.) However, none of these personne! actions is at issue in this

case. Moreover, plaintiff did not apply for either of the two

ILAB vacancies he mentions. (See Declaration of Ericka C. Witt,

dated April, 2009 ["Second Witt Decl.| para. 4-7.) Although

plaintiff does complain here about his failure to be considered or

selected for the division chief position that Ms. Zollner obtained,

his complaint concerns earliervacancy announcements, and he

does not allege that Ms. Zollner failed to meet the agency's

requirements for the position. Thus, these personnel actions are

irrelevant.

A-%6

Page 21 of 22

Messina v. Krakower, 439 F.3d 755, 762 (D.C. Cir.

2006) ("A party making a Rule 56(f) request must

statel] concretely why additional discovery is needed

to oppose a motion for summary judgment.") (citation

and internal quotation marks omitted»; Byrd v. EPA,

174 F.3d 239, 248 n.8 (D.C. Cir. 1999) (party seeking

discovery bears the burden of identifying the facts to

be discovered that would create a triable issue and

reasons why the party cannot acquire those facts

without discovery to challenge a motion for summary

judgment); Strang v. u.s. Arms Control &

Disarmament Agency, 864 F.2d 859, 861 (D.C. Cir.

1989) (plaintiff must "state with sufficient

particularity ... why discovery [is] necessary),

Plaintiff has again failed to meet this standard

despite having been told of the requirements of Rule

56(f) in Brookens, Jand having been reminded by the

Court's Fox/Neal/ Order of January 6, 2009, of the need

to provide evidence to contradict defendant's

assertions in its affidavits. As an initial matter, the

lack of discovery has no relevance tc defendant's

arguments under Rule 12(b )(6). And, as to

defendant's summary judgment arguments, plaintiff

fails to provide sufficient particularity to justify his

request for discovery. Instead, he presents conclusory

assertions that amount to nothing more than a claim

that he could prove his case if only he were permitted

discovery. Nor has he shown how the laundry list of

statistical data that he seeks would undercut

h-34

defendant's explanations for its actions.'7 Moreover,

the matters at

End page 21

Page 22 of 22

issue involve matters that are within plaintiffs

knowledge to dispute, so there is no excuse for

his failure to offer any rebuttal to defendant's

evidence.

For these reasons, there is nothing to suggest that

plaintiffs vague request for discovery would result in

his being able to create a triable issue of fact. Therefore, the

Court will deny plaintiffs motion for a stay and his Rule

56(f) request for discovery.

CONCLUSION

For the foregoing reasons, the Court will grant

defendant's motion to dismiss complaint

Plaintiff's rehance on Fitzgerald v. Henderson, 251 F.3d 345

(2d Cir. 2001), is unavailing. In that case, the plaintiff sought

recovery for discriminatory conduct that occurred outside the

applicable limitations period under the "continuing violation

theory," which, according to the district court, required plaintiff

to show a “formal policy or that discrimination was

'widespread.*” 251 F.3d at 362. In those circumstances, the

Second Circuit held that "[fjaulting [plaintiff] for failure to make

a showing of a formal policy - - or of other matters that

would similarly be beyond her knowledge - - was incompatible

with the court's denial of discovery." /d. In this case, however,

there is no allegation that any of the discrete acts of

discrimination alleged by plaintiff are untimely. Thus, the

continuing violation theory is irrelevant here.

A-3¢

or in the alternative for summary judgment and will

deny plaintiff's motion to stay. A separate

Order accompanies this Memorandum Opinion.

/s/

ELLEN SEGAL HUVELLE

United States District Judge

Date: May 21, 2009

A-39