                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA

_____________________________
                             )
ROXANN J. FRANKLIN-MASON,    )
                             )
           Plaintiff,        )
                             )
           v.                ) Civil Action No. 03-945 (RWR)(JMF)
                             )
B.J. PENN,                   )
Secretary of the Navy,       )
                             )
           Defendant.        )
_____________________________)

                   MEMORANDUM OPINION AND ORDER

     Plaintiff Roxann J. Franklin-Mason filed this Title VII

action against the Secretary of the Navy,1 her employer at the

time, claiming that she was retaliated against for bringing a

previous Title VII action.   The defendant moved for a partial

summary judgment that seven of the discrete acts that Franklin-

Mason used to support her claim of retaliatory hostile work

environment could not be considered retaliation.   Magistrate

Judge John M. Facciola issued a report and recommendation finding

that because Franklin-Mason brought a single, indivisible claim

under Title VII of retaliation that included an assertion of a

hostile work environment, partial summary judgment was not

appropriate.   The Navy filed objections to the report and

recommendation.   Because the report and recommendation properly



     1
       B.J. Penn is substituted as the defendant under Fed. R.
Civ. P. 25(d).
                                 -2-

determined that partial summary judgment was inappropriate, the

recommendation will be adopted, and the defendant’s motion for

partial summary judgment will be denied.

                            BACKGROUND

     The history and background of this dispute are discussed in

Franklin-Mason v. Dalton, Civil Action No. 96-2505 (RWR)(JMF),

2006 WL 825418 (D.D.C. Mar. 21, 2006), issued in the previous

Title VII action, and the magistrate judge’s report and

recommendation in this action.   Report and Recommendation, Docket

Entry 40, at 1-2.   Briefly, Franklin-Mason, an African American

woman, brought the original Title VII action against her then-

former employer, the Secretary of the Navy, alleging that the

Navy had discriminated against her on the basis of race and

gender by failing to promote her to a position for which she had

applied.   The parties ultimately filed a settlement agreement and

stipulation of dismissal which required the Navy to appoint

Franklin-Mason as a Senior Financial Analyst/Advisor.   The

agreement also stated that a party could seek from the court

enforcement of the agreement should a breach of the agreement

occur.

     Franklin-Mason moved in the previous action to enforce the

settlement agreement, asserting that the Navy failed to live up

to its obligations.   Franklin-Mason then brought this action

alleging that after she moved to enforce the settlement
                                -3-

agreement, the Navy subjected her to adverse and disparate

treatment and a hostile work environment in retaliation for her

opposing the Navy’s unlawful employment practices.2   She says the

Navy refused to approve a request routinely granted to other

employees to restore use-or-lose annual leave, moved her from an

office with a window and office furniture to a significantly

smaller windowless cubicle in an area segregated by race, made it

harder for her than other employees to use family medical leave

time to care for sick family members, denied her requests for

developmental training routinely approved for other employees,

refused to give her performance appraisals or evaluations which

are essential for advancement, threatened to punish her if she

did not perform work that she was instructed to do, and did not

give her job duties or responsibilities commensurate with the

position promised to her in the settlement agreement.   (See

Compl. ¶¶ 13-20, 26; Def.’s Mot. for Partial Summ. J. (“Def.’s

Mot.”), Exhs. L at 8, M.)

     The Navy moved under Federal Rule of Civil Procedure 56 for

partial summary judgment on all but the last of these purported

acts of retaliation.3   (Def.’s Mem. in Supp. of Mot. for Summ. J.


     2
       She also asserted a separate claim for breach of the
settlement agreement, a claim she later voluntarily dismissed.
     3
       The Navy argued that they were not sufficient to be
considered retaliatory acts, and could not be used by Franklin-
Mason at trial to support her claim that she was subjected to a
retaliatory hostile work environment.
                                  -4-

(“Def.’s Mem.”) at 2, 11.)     Magistrate Judge Facciola issued a

report recommending denying the Navy’s motion for partial summary

judgment.    The report stated that Rule 56 does not empower a

court “to grant summary judgment as to one aspect of an

indivisible claim[,]” particularly where, as here, “some aspect

of an indivisible claim for relief remains in existence,

untouched by the defendant’s motion.”     Report and Recommendation

at 8, 9.    It reasoned that

      [i]n this case, it is clear that Count I of the
      plaintiff’s complaint is indivisible. . . . Plaintiff
      is asserting an indivisible claim by arguing that an
      entire course of action violated her rights. The
      defendant . . . argues first that the seven events are
      insufficient in themselves and then that, even when
      considered in total, do not constitute a hostile
      environment. But even if the seven events are not
      actionable, adverse employment actions or do not, in
      themselves, constitute a hostile work environment,
      . . . [this] does not entitle defendant to judgment as
      to count one.

Id. at 10-11.    Magistrate Judge Facciola ultimately determined

that the Navy was impermissibly seeking “‘partial summary

judgment’ as to a single indivisible claim for relief.”     Id. at

11.

      The Navy objects to the report, arguing that the magistrate

judge erred by failing to rule that Franklin-Mason could not

“argue to the jury that the events that were the subject of the

motion for summary judgment are evidence of retaliation and of

the creation of a hostile work environment.”     (Def.’s Objns. at

8; see id. at 20.)
                                 -5-

                            DISCUSSION

     The magistrate judge’s report and recommendation is reviewed

de novo.   LCvR 72.3(c); see also Fed. R. Civ. P. 72; Ames v.

Yellow Cab of D.C., Inc., Civil Action No. 00-3116 (RWR), 2006 WL

2711546, at *4 (D.D.C. September 21, 2006).

     The report and recommendation correctly determined that a

party may not file a motion for partial summary judgment on a

fact or an element of a claim.   See Beard v. D.C. Housing

Authority, 584 F. Supp. 2d 139, 140 n.1 (D.D.C. 2008) (denying

plaintiff’s motion for partial summary judgment because “‘Rule 56

does not contemplate a motion for partial summary judgment of the

sort [Beard] has filed[,]’ and judgment ‘may not be entered as to

a fact or an element of a claim’”) (quoting LaPrade v. Abramson,

Civil Action No. 97-10 (RWR), 2006 WL 3469532, at *8 (D.D.C.

November 29, 2006)).   The Navy acknowledged in its motion for

partial summary judgment that it was moving for judgment on less

than the entire surviving claim.   It stated that the element in

the claim that the Navy retaliated against Franklin-Mason by not

giving her job duties or responsibilities commensurate with the

position she was entitled to under the settlement agreement “is

not subject to this motion for partial summary judgment.”

(Def.’s Mem. at 4; see also Def.’s Mot. at 1 (“No genuine issue

as to any material fact exists as to most of the claims being

made by plaintiff, and defendant is entitled to judgment as a
                                 -6-

matter of law on these claims.” (emphasis added).)   Neither the

Navy’s request for a judgment on only part of an indivisible

claim nor its request that “seven of the eight alleged acts of

retaliation in the case . . . not be permitted to be pursued at

trial” (Def.’s Objns. at 1) is proper in a motion for partial

summary judgment.    See Primavera Familienstiftung v. Askin, 130

F. Supp. 2d 450, 540 (S.D.N.Y. 2001) (denying defendants’ motion

for partial summary judgment as “procedurally improper” because

the defendants sought “summary judgment only with respect to a

portion” of a claim).

                        CONCLUSION AND ORDER

     Because the magistrate judge correctly determined that

partial summary judgment as to a fact or an element of a claim is

not available under Rule 56, it is hereby

     ORDERED that the defendant’s objections [46] to the report

and recommendation be, and hereby are, OVERRULED, and the

defendant’s motion [26] for partial summary judgment be, and

hereby is, DENIED.

     SIGNED this 7th day of July, 2009.


                                         /s/
                                RICHARD W. ROBERTS
                                United States District Judge
