                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

_________________________________________
                                          )
SEABERN HILL,                             )
                                          )
      Plaintiff,                          )
                                          )
              v.                          )                  Case No. 14-cv-01809 (APM)
                                          )
BOARD OF TRUSTEES OF THE                  )
UNIVERSITY OF THE                         )
DISTRICT OF COLUMBIA,                     )
                                          )
      Defendant.                          )
_________________________________________ )

                                 MEMORANDUM OPINION

       Before the court is Defendant Board of Trustees of the University of the District of

Columbia’s unopposed Motion for Summary Judgment. See Def.’s Mot. for Summ. J., ECF No.

29 [hereinafter Def.’s Mot.]. Defendant moves to dismiss Plaintiff Seabern Hill’s remaining

claims under Section 1983, 42 U.S.C § 1983, and the Age Discrimination in Employment Act

(“ADEA”), 29 U.S.C. § 623. As the parties are familiar with the facts and procedural history of

this case, the court recites only what is necessary to rule on Defendant’s Motion.

       The court reaches Defendant’s Motion after providing Plaintiff ample opportunity to

respond. Defendant filed its Motion on November 17, 2016. See Def.’s Mot. Plaintiff’s

Opposition was originally due on December 1, 2016. See LCvR 7(b). Plaintiff repeatedly sought

extensions of time to file his Opposition, beginning on December 6, 2016, to which Defendant

consented until late January 2017. Compare Pl.’s Consent Mot. for Extension of Time, ECF No.

30, Pl.’s Consent Mot. for Extension of Time, ECF No. 32, and Pl.’s Consent Mot. for Extension

of Time, ECF No. 34, with Pl.’s Mot. for Extension of Time, ECF No. 35, and Def.’s Mem. in
Opp’n to Pl.’s Mot. for Extension of Time, ECF No. 36. The court entered an Order on January

27, 2017, denying as moot Plaintiff’s most recent Motion for Extension of Time, explaining that

the date by which Plaintiff stated he would file his Opposition had passed. See Minute Order

(dated Jan. 27, 2017). To date, Plaintiff still has not filed his Opposition. Accordingly, the court

now rules on Defendant’s Motion.

       Summary judgment is appropriate “if 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). The court may not treat a plaintiff’s failure to respond to a defendant’s motion for summary

judgment as a concession of the motion. Winston & Strawn, LLP v. McLean, 843 F.3d 503, 508

(D.C. Cir. 2016); Fed. R. Civ. P. 56(e) advisory committee’s 2010 note. Rather, “the [d]istrict

[c]ourt must always determine for itself whether the record and any undisputed material facts

justify granting summary judgment.” Winston & Strawn, LLP, 843 F.3d at 505 (internal quotation

marks omitted).     The court may, however, treat any unaddressed factual statement in the

defendant’s motion as undisputed. See id. at 507; LCvR 7(h)(1) (“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.”).

       After thorough consideration of the record, the court grants Defendant’s Motion for

Summary Judgment as to each remaining claim in the Amended Complaint. See Mem. Op. &

Order, ECF No. 10 (allowing Plaintiff to proceed with his claims of age discrimination and

violation of his right to free speech, but dismissing his gender discrimination claim).

       First, with respect to Plaintiff’s claim under the ADEA, summary judgment is appropriate

because Plaintiff cannot make out a claim that Defendant discriminated against him based on his



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age when Defendant chose to eliminate Plaintiff’s employment position. Defendant has offered a

legitimate, non-discriminatory reason for Plaintiff’s termination—the elimination of Plaintiff’s

position due to a reduction in force arising from budgetary constraints—and the record contains

no evidence that Plaintiff was disadvantaged in favor of a younger person when his employment

was terminated; no younger person was hired to replace him. See Def.’s Mot. at 18–21. Nor is

there any record evidence that Defendant implemented the reduction in force in a manner that

discriminated against older employees. See id. In short, Plaintiff has offered no evidence that

Defendant’s citation to budgetary constraints is pretext for discrimination. As a matter of law,

then, Plaintiff is unable to prove that he was discriminated against on account of his age. See

Johnson v. Interstate Mgmt. Co., No. 14-7164, 2017 WL 836090, at *5 (D.C. Cir. 2017).

       Second, with respect to Plaintiff’s Section 1983 claim, summary judgment is appropriate

because the undisputed facts reflect that Plaintiff cannot make out a claim that Defendant violated

his First Amendment rights by abolishing his position. Defendant’s Motion states, and Plaintiff

has not disputed, that the scope of Plaintiff’s employment encompassed alerting his supervisors to

any unlawful access of student records, thus rendering the speech at issue in this matter statements

Plaintiff made pursuant to his official duties as Records Officer. See Def.’s Mot. at 24–25. In

other words, Plaintiff’s speech was not the speech of a “citizen.” In addition, the undisputed facts

reflect that Defendant terminated Plaintiff’s employment because it needed to reduce the size of

its workforce due to budgetary concerns, not to punish Plaintiff for his speech. See id. at 30–31.

As a matter of law, then, Plaintiff cannot prove Defendant violated his First Amendment rights by

taking an adverse employment action against him in retaliation for constitutionally protected

activity—Plaintiff’s speech was not protected activity and, even if protected, that speech did not

motivate Defendant’s decision to eliminate Plaintiff’s position.      See Coleman v. District of



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Columbia, 893 F. Supp. 2d 84, 96 (D.D.C. 2012), aff’d in part and rev’d in part on other grounds,

794 F.3d 49 (D.C. Cir. 2015).

       Collecting all the undisputed facts on the record, the court concludes that Defendant is

entitled to judgment in its favor as a matter of law. See Fed. R. Civ. P. 56. Accordingly, the court

grants Defendant’s Motion for Summary Judgment.

       A separate Order accompanies this Memorandum Opinion.




Dated: March 29, 2017                                Amit P. Mehta
                                                     United States District Judge




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