UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JOHN DAVID O. WILKINS, : : Plaintiff, : : Civil Action No.: 10-0562 (RMU) v. : : Re Document No.: 8 LISA P. JACKSON, Administrator, : Environmental Protection Agency, : : Defendant. :

MEMORANDUM OPINION

GRANTING AS CONCEDED THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

The pro se plaintiff is an African-American male employed by the Environmental

Protection Agency (“EPA”). He commenced this action in April 2010, alleging violations of

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. See generally Compl. The

plaintiff contends that the EPA discriminated against him on the basis of his race by failing to

select him for a position for which he had applied, treating him differently from similarly

situated employees not of his race and subjecting him to a hostile work environment. See

generally id.

On August 20, 2010, the defendant filed a motion for summary judgment on all of the

plaintiff’s claims. See generally Def.’s Mot. for Summ. J. In the motion, which was supported

by a comprehensive memorandum of law and numerous exhibits, the defendant argued that the

plaintiff had failed to raise a genuine issue of material fact with respect to any of his claims. See

generally id. More specifically, the defendant argued that the plaintiff’s non-selection claim

failed because there is no evidence to rebut the defendant’s legitimate, non-discriminatory

justification for the plaintiff’s non-selection – namely, that the agency hired an individual with qualifications superior to those of the plaintiff. Id. at 4-8. The defendant also asserted that the

plaintiff had failed to make out a prima facie case with respect to his disparate treatment claims

because the actions on which they were premised – such as poor performance ratings, removal

from the Flexiplace program and mishandling of a background investigation – did not constitute

adverse employment actions. Id. at 8-16. Lastly, the defendant asserted that the plaintiff’s

hostile work environment claim failed as a matter of law because it amounted to nothing more

than a cobbling together of the plaintiff’s discrete claims of non-selection and disparate

treatment. Id. at 16-18.

In the parties’ Joint Report pursuant to Local Civil Rule 16.3, the plaintiff indicated that

he would respond to the defendant’s motion by September 27, 2010. See Joint Report ¶ 6. The

plaintiff, however, did not file an opposition by that date or request an extension of time to

oppose the defendant’s motion.

Accordingly, on October 14, 2010, nearly two months after the defendant moved for

summary judgment, the court issued a Fox-Neal order, directing the plaintiff to file his

opposition by October 28, 2010 and advising the plaintiff of the consequences of his failure to

respond. See generally Order (Oct. 14, 2010). The court specifically advised the plaintiff that

“the Court will accept as true any factual assertions contained in affidavits or attachments

submitted by the defendant in support of a motion for summary judgment unless the plaintiff

submits his own affidavits or documentary evidence showing that the defendant’s assertions are

untrue.” Id. at 2-3. The court further advised the plaintiff that his “response must – by affidavits

or otherwise provided in this rule – set out specific facts showing a genuine issue for trial. If the

opposing party does not so respond, summary judgment should, if appropriate be entered against

that party.” Id. at 2 (quoting FED. R. CIV. P. 56(c)).

2 On October 31, 2010, the plaintiff submitted a two-page response to the court’s October

14 order. See generally Pl.’s Response to the Court’s October 31, 2010 Order (“Pl.’s

Response”). In his response, the plaintiff states that he is “serious and very sincere” about his

desire to pursue his claim and reiterates that he is the victim of racial discrimination. Id. at 1-2.

The plaintiff also states that he is not “open to a concession to the defendant,” and that he did not

receive a copy of the October 14, 2010 order in a timely manner. Id. at 2. The plaintiff does not,

however, respond to any of the arguments raised in the defendant’s motion for summary

judgment or submit any affidavits or other proof to counter the factual representations in the

defendant’s motion, see generally id., despite the court’s clear warning that his failure to do so

could result in the defendant’s motion being granted as conceded, Order (Oct. 14, 2010) at 2.

It is well established that if a plaintiff fails to respond to an argument raised in a motion

for summary judgment, it is proper to treat that argument as conceded. See, e.g., Diggs v. Potter,

(D.D.C. 2010); Sykes v. Dudas,

(D.D.C. 2008);

see also LCvR 7(h) (providing that “[i]n 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”); cf. Fed. Deposit Ins. Corp. v. Bender,

(D.C. Cir. 1997)

(concluding that the district court did not abuse its discretion in granting a motion for summary

judgment as conceded based on the opposing party’s failure to file a timely opposition). The

Circuit has cautioned, however, that “in review of the severity of dismissal of a potentially

meritorious claim . . . treating an issue as conceded for failure to respond fully to a motion for

summary judgment ‘should only be applied to egregious conduct.’” Burke v. Gold,

(D.C. Cir. 2002) (quoting Robbins v. Reagan,

, 52 & n.23 (D.C. Cir. 1985)).

3 The plaintiff’s conduct in this case satisfies that threshold. Despite stating that he would

oppose the defendant’s motion for summary judgment by September 27, 2010, see Joint Report ¶

6, the plaintiff had not filed an opposition by mid-October. The court then issued a Fox-Neal

order clearly advising the plaintiff of his obligation to submit proof – through affidavits or

otherwise – in response to the evidence submitted by the defendant. Order (Oct. 14, 2010) at 2.

Nonetheless, the plaintiff responded to the order by submitting a two-page response that did not

address any of the arguments or evidence in the defendant’s motion for summary judgment. See

generally Pl.’s Response. Such conduct warrants treating the arguments in the defendant’s

motion as conceded. See Lytes v. D.C. Water & Sewer Auth.,

(D.C. Cir. 2009)

(holding that the plaintiff engaged in “egregious conduct” by responding to the defendant’s

motion for summary judgment on his disability claim by describing his disability “in a single

paragraph without any reference to record evidence supporting his description” and “present[ing]

a ‘counter-statement of material facts’ that failed to discuss his functional capacity at the time of

the alleged discrimination”).

Accordingly, because the plaintiff has failed to respond to any of the arguments for

dismissal raised in the defendant’s properly supported and comprehensive motion for summary

judgment, the court grants the defendant’s motion as conceded. An Order consistent with this

memorandum opinion is issued this 16th day of November, 2010.

RICARDO M. URBINA United States District Judge

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