 


                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


CHRISTOPHER TALLEY,

            Plaintiff,

       v.
                                                          Civil Action No. 11-01510 (CKK)
DR. RAJIV SHAH, Administrator, United
States Agency for International Development,

            Defendant.


                                  MEMORANDUM OPINION
                                      (July 23, 2012)

       Plaintiff Christopher Talley (“Talley”) brings this action pro se against the Administrator

of the United States Agency for International Development (“USAID”), alleging that he was

discriminated against on the basis of his race, gender, and protected activity in violation of Title

VII of the Civil Rights Act of 1964 (“Title VII”). Currently before the Court is USAID’s [9]

Motion to Dismiss or, in the Alternative, Motion for Summary Judgment (“Motion for Summary

Judgment”). Upon careful consideration of the parties’ submissions, the relevant authorities, and

the record as a whole, USAID’s Motion for Summary Judgment shall be GRANTED.

                                       I. BACKGROUND

       Talley commenced this action on August 22, 2011, claiming that he was “employed by

USAID as a ‘Health Commodity and Logistics Advisor’ on a contract basis from February 2009

through September 2010” until he was “terminated . . . based on his race, gender and the

protected activity of opposing discrimination in the workplace in violation of . . . Title VII.”

Compl., ECF No. [1], ¶¶ 9, 32.




 
 


       USAID filed its Motion for Summary Judgment on January 6, 2012. See Def.’s Stmt. of

Facts as to which There is No Genuine Dispute, ECF No. [9-1]; Def.’s Mem. of P. & A. in Supp.

of Def.’s Mot. to Dismiss, or in the Alternative, for Summ. J., ECF No. [9-2]. The Court then

issued an order in accordance with Fox v. Strickland, 837 F.2d 507 (D.C. Cir. 1988) and Neal v.

Kelly, 963 F.2d 453 (D.C. Cir. 1992), advising Talley of the consequences of failing to respond

to USAID’s motion or failing to respond in the appropriate manner. See Order (Jan. 9, 2012),

ECF No. [10]. Among other things, the Court called Talley’s attention to Local Civil Rule

7(h)(1), which provides 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.” LCvR 7(h)(1). The Court also issued a separate procedural order advising Talley of

the requirements for briefing motions generally and motions for summary judgment specifically.

See Scheduling & Procedures Order (Jan. 9, 2012), ECF No. [11], ¶¶ 5-6. Among other things,

the Court warned Talley that “where a party fails to respond to arguments in opposition papers,

the Court may treat those specific arguments as conceded.” Id. ¶ 5(c). The Court also reiterated

that “[t]he Court may assume that facts identified by the moving party in its statement of material

facts are admitted, unless such facts are controverted in the statement filed in opposition to the

motion.” Id. ¶ 6(d).

       Talley filed his Opposition on January 23, 2012. See Mot. [sic] in Opp’n to Mot. to

Dismiss & Summ. J. (“Pl.’s Opp’n”), ECF No. [12]. Talley’s nine-page Opposition includes an

introductory paragraph, a paragraph-by-paragraph response to USAID’s statement of material

facts, a recitation of the relief requested in the Complaint, and a series of exhibits.




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       USAID filed its reply on February 17, 2012. See Def.’s Reply to Pl.’s Opp’n to Def.’s

Mot. to Dismiss, or in the Alternative, for Summ. J., ECF No. [15]. The motion is therefore fully

briefed and ripe for adjudication. In an exercise of its discretion, the Court finds that holding

oral argument would not be of assistance in rendering a decision. See LCvR 7(f).

                                     II. LEGAL STANDARD

       Athough styled in the alternative as a motion to dismiss for failure to state a claim

pursuant to Federal Rule of Civil Procedure 12(b)(6), USAID’s motion turns upon consideration

of materials that are outside the scope of the pleadings. Both parties effectively treat the motion

as one for summary judgment. Indeed, Talley relies heavily on materials that are outside the

scope of the pleadings in his Opposition. He does not suggest that he “cannot present facts

essential to justify [his] opposition. FED. R. CIV. P. 56(d). Accordingly, the Court shall treat the

motion solely as one for summary judgment.

       Summary judgment is appropriate where “the movant shows that there is no genuine

dispute as to any material fact and [that it] . . . is entitled to judgment as a matter of law.” FED.

R. CIV. P. 56(a). The mere existence of some factual dispute is insufficient on its own to bar

summary judgment; the dispute must pertain to a “material” fact. Id. Accordingly, “[o]nly

disputes over facts that might affect the outcome of the suit under the governing law will

properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255 (1986). Nor may summary judgment be avoided based on just any disagreement as to

the relevant facts; the dispute must be “genuine,” meaning that there must be sufficient

admissible evidence for a reasonable trier of fact to find for the non-movant. Id.

       In order to establish that a fact is or cannot be genuinely disputed, a party must (a) cite to

specific parts of the record—including deposition testimony, documentary evidence, affidavits or



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declarations, or other competent evidence—in support of his position, or (b) demonstrate that the

materials relied upon by the opposing party do not actually establish the absence or presence of a

genuine dispute. FED. R. CIV. P. 56(c)(1). Conclusory assertions offered without any factual

basis in the record cannot create a genuine dispute sufficient to survive summary judgment.

Ass’n of Flight Attendants-CWA, AFL-CIO v. U.S. Dep’t of Transp., 564 F.3d 462, 465-66 (D.C.

Cir. 2009). Moreover, where “a party fails to properly support an assertion of fact or fails to

properly address another party’s assertion of fact,” the district court may “consider the fact

undisputed for purposes of the motion.” FED. R. CIV. P. 56(e).

       When faced with a motion for summary judgment, the district court may not make

credibility determinations or weigh the evidence; instead, the evidence must be analyzed in the

light most favorable to the non-movant, with all justifiable inferences drawn in his favor. Liberty

Lobby, 477 U.S. at 255. If material facts are genuinely in dispute, or undisputed facts are

susceptible to divergent yet justifiable inferences, summary judgment is inappropriate. Moore v.

Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). In the end, the district court’s task is to determine

“whether the evidence presents a sufficient disagreement to require submission to a jury or

whether it is so one-sided that one party must prevail as a matter of law.” Liberty Lobby, 477

U.S. at 251-52. In this regard, the non-movant must “do more than simply show that there is

some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co., Ltd. v. Zenith

Radio Corp., 475 U.S. 574, 586 (1986); “[i]f the evidence is merely colorable, or is not

sufficiently probative, summary judgment may be granted,” Liberty Lobby, 477 U.S. at 249-50

(internal citations omitted).

       While “[a]ll pleadings shall be so construed as to do substantial justice,” FED. R. CIV. P.

8(f), pleadings filed by a party proceeding pro se must be “liberally construed,” Erickson v.



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Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quotation marks omitted). For example, where a

pro se party has filed multiple submissions, the district court must generally consider those

filings together and as a whole. See Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir.

1999). However, even with the liberality afforded pro se pleadings, the district court “need not

accept inferences unsupported by the facts alleged in the complaint or legal conclusions cast in

the form of factual allegations.” Kaemmerling v. Lappin, 553 F.3d 669, 667 (D.C. Cir. 2008)

(quotation marks omitted).

                                        III. DISCUSSION

       Talley claims that he was “terminated . . . based on his race, gender and the protected

activity of opposing discrimination in the workplace in violation of . . . Title VII.” Compl. ¶ 32.

Talley references Title VII no less than eight times in his Complaint, but the provisions he relies

upon all require a plaintiff to be “in a direct employment relationship with a government

employer.” Spirides v. Reinhardt, 613 F.2d 826, 829 (D.C. Cir. 1979); see also 42 U.S.C. §

2000e(f). Talley does not meet this threshold requirement because he readily admits that he was

employed not by USAID, but rather by non-party Public Health Institute (“PHI”) as part of its

Global Health Fellows Program. See Pl.’s Opp’n at 1 (“I was an employee of the Public Health

Institute and the Global Health Fellows Program . . . .”).

       Even absent this admission, Talley has failed to contest the USAID’s showing that the

“economic realities” of his employment demonstrate that he was employed by PHI and not

USAID. See Spirides, 613 F.2d at 831 (“[D]etermination of whether an individual is an

employee . . . for purposes of the Act involves . . . analysis of the ‘economic realities’ of the

work relationship.”) (citation omitted); see also Def.’s Mem. at 9-12. Talley was warned that

“when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments



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raised by the defendant, a court may treat those arguments that the plaintiff failed to address as

conceded.” Hopkins v. Women’s Div., Gen. Bd. of Global Ministries, 284 F. Supp. 2d 15, 25

(D.D.C. 2003), aff’d, 98 F. App’x 8 (D.C. Cir. 2004); accord Lewis v. District of Columbia, No.

10-5275, 2011 WL 321711, at *1 (D.C. Cir. Feb. 2, 2011) (per curiam). The Court exercises its

discretion to treat the USAID’s “economic realities” argument as conceded.

       Because Talley cannot recover against USAID under Title VII, USAID’s Motion for

Summary Judgment shall be GRANTED. See Harris v. Attorney General of the United States,

657 F. Supp. 2d 1, 8 (D.D.C. 2009) (“[D]efendant’s status as an ‘employee’ within the meaning

of 42 U.S.C. § 2000e [is] a question that [goes] to the merits of the case, not a jurisdictional

question.”) (citing Arbaugh v. Y & H Corp., 546 U.S. 500, 515 (2006)).

                                               * * *

       The foregoing analysis is fully dispositive of this case because the only claim identified

in the Complaint arises under Title VII. The Court nonetheless pauses to make two observations.

       First, the introductory paragraph to the Complaint includes a stray reference to

“retaliation for whistle blowing [sic] activity.” Compl. ¶ 1. Because Talley speaks only of

“opposing discrimination” when identifying his claim, id. ¶ 32, and because Talley characterizes

his claim as one for “discrimination in employment” in his Opposition, see Pl.’s Opp’n at 1, the

Court does not construe this stray reference as asserting a stand-alone claim for “whistle blowing

[sic] activity,” id.¶ 1. But even assuming, for the sake of argument, that Talley intended to assert

a claim under the federal Whistleblower Protection Act, that claim would also fail because that

statute similarly requires a plaintiff to establish a direct employment relationship as a

precondition to recovery. See 5 U.S.C. § 2302(b)(8).




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       Second, the introductory paragraph to Talley’s Opposition includes a stray reference to

42 U.S.C. § 1983 (“Section 1983”). See Pl.’s Opp’n at 1. But Talley’s Complaint does not

identify Section 1983 as a basis for relief and “[i]t is axiomatic that a complaint may not be

amended by the briefs in opposition to a motion to dismiss.” Arbitraje Casa de Cambio, S.A. de

C.V. v. U.S. Postal Serv., 297 F. Supp. 2d 165, 170 (D.D.C. 2003) (quotation marks omitted).

However, even assuming counterfactually that Talley had asserted a Section 1983 claim in his

Complaint, Talley cannot recover against USAID’s Administrator under Section 1983 because

“Section 1983 does not apply to federal officials acting under color of federal law.” Settles v.

U.S. Parole Comm’n, 429 F.3d 1098, 1104 (D.C. Cir. 2005). Furthermore, the Court does not

construe Talley’s stray reference to Section 1983 as asserting a claim under Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), but it is doubtful

in any event that a Bivens claim could be asserted in this context as Congress has already crafted

a comprehensive statutory scheme. See, e.g., Bush v. Lucas, 462 U.S. 367, 388-89 (1983).

Regardless, the only named defendant in this case is USAID’s Administrator and the Complaint

is devoid of any allegation that the Administrator personally engaged in wrongful conduct. See

Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) (“Because vicarious liability is inapplicable to

Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through

the official’s own individual actions, has violated the Constitution.”).

                                       IV. CONCLUSION

       For the reasons set forth above, USAID’s [9] Motion for Summary Judgment shall be

GRANTED. An appropriate Order and Judgment accompanies this Memorandum Opinion.

Date: July 23, 2012                                   _____/s/______________________
                                                      COLLEEN KOLLAR-KOTELLY
                                                      United States District Judge



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