                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

                                                       )
LORRAINE TOWNSEND,                                     )
                                                       )
                       Plaintiff,                      )
                                                       )
                       v.                              )       Civil Action No. 10-0218 (ESH)
                                                       )
RAY MABUS, Secretary,                                  )
U.S. DEPARTMENT OF THE NAVY,                           )
                                                       )
                       Defendant.                      )
                                                       )

                                    MEMORANDUM OPINION

       Before the Court is defendant’s motion pursuant to Federal Rules of Civil Procedure

12(b)(6) and 56 to dismiss or, alternatively, for summary judgment. (See Def.’s Mot. to Dismiss

Or, Alternatively for Summ. J., July 19, 2010 [dkt. 10].) On July 26, 2010, the Court 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 plaintiff of her obligations under the Federal Rules of

Civil Procedure and the Local Civil Rules.1 (Order, July 26, 2010.) In particular, plaintiff was

informed that the Court would accept as true any factual assertions contained in affidavits,

declarations or attachments submitted by defendant in support of a motion for summary

judgment unless plaintiff submitted affidavits, declarations, or documentary evidence showing

that defendant’s assertions are untrue. (Id. at 3.)

       Here, defendant has submitted a lengthy memorandum in support of its motion to dismiss


       1
         The Court’s Order quoted extensively from Local Rule 7(h)(1) and Federal Rule of Civil
Procedure 56(e) and expressly warned plaintiff that she must “set out specific facts showing a
genuine issue for trial” and “rebut [defendant’s] affidavits with other affidavits or sworn statements;
simple allegations that [defendant’s] affidavits are incorrect are not sufficient.” (Order, July 26,
2010, at 2.)
and for summary judgment, including 26 exhibits. It has moved to dismiss plaintiff’s

constitutional and breach of contract claims for lack of jurisdiction,2 and it has moved for

summary judgment on plaintiff’s remaining claims on the grounds that there were legitimate,

non-discriminatory reasons for plaintiff’s dismissal and performance ratings. (Def.’s Mem. at 2,

30.) Defendant also contends that plaintiff’s claim regarding her 2008 performance rating, and

various other incidents in which plaintiff’s performance was described and/or assessed, do not

establish a hostile work environment. (Id. at 41.) In support of its motion, defendant attaches a

variety of documentation, including emails and memoranda by and concerning plaintiff; Equal

Employment Opportunity Commission (“EEOC”) hearing transcripts, decisions, and orders;

excerpts from a deposition of Ms. Townsend; and the entire 256-page Merit Systems Protection



       2
          Defendant moves to dismiss plaintiff’s breach of settlement/contract claims on the ground
that the Court of Federal Claims is the only court with jurisdiction over breach of settlement claims
against the federal government where the relief sought exceeds $10,000.00. (Def. Dep’t of the
Navy’s Mem. of P. & A. in Supp. of Its Mot. to Dismiss or, Alternatively, for Summ J. [“Def,’s
Mem.”] at 21); see also Greenhill v. Spellings, 482 F.3d 569, 571, 575-76 (D.C. Cir. 2007)
(concluding that Court of Federal Claims had “exclusive” jurisdiction over plaintiff’s claim that
government had breached settlement agreement reached after plaintiff filed discrimination
complaints with EEOC). Defendant moves to dismiss plaintiff’s constitutional claims on the ground
that Title VII provides the exclusive judicial remedy for claims of discrimination in federal
employment and that the government has not waived its immunity from suit for any constitutional
torts that may be committed by its employees regarding personnel actions. (Def.’s Mem. at 23-24);
see also Brown v. Gen. Servs. Admin., 425 U.S. 820, 828-29 (1976) (Title VII “provides the
exclusive judicial remedy for claims of discrimination in federal employment” ); see also Spagnola
v. Mathis, 859 F.2d 223, 230 (D.C. Cir. 1988) (“‘[S]pecial factors’ preclude the creation of a [Bivens
v. Six Unknown Federal Agents, 403 U.S. 388 (1971)] remedy for civil service employees and
applicants who advance constitutional challenges to federal personnel actions.”). Although
defendant frames both aspects of its motion to dismiss as jurisdictional, the Court is persuaded that
defendant’s argument regarding plaintiff’s constitutional claims is “better understood as seeking
dismissal under [Federal Rule of Civil Procedure] 12(b)(6), not Rule 12(b)(1).” Kim v. United
States, 618 F. Supp. 2d 31, 38 (D.D.C. 2009) (defendants’ argument that plaintiffs failed to state
claim for Bivens action because of the existence of a comprehensive statutory remedial scheme seeks
dismissal under Rule 12(b)(6), not Rule 12(b)(1)).

                                                  2
Board (MSPB) hearing transcript. The motion also includes a statement of material facts not in

dispute, setting forth plaintiff’s work performance leading to her poor review and termination.

(Def.’s Statement of Material Facts Not in Genuine Dispute in Supp. of Its Mot. for Summ. J.

[“SOMF”] ¶¶ 5-11.)

       Plaintiff’s three-page opposition to defendant’s motion fails to address any of the

arguments made by defendant. Plaintiff ignores defendant’s jurisdictional arguments, and

although she claims to “disput[e]” the “alleged facts of the Defendant,” she does not specify

which facts she disputes. (Opp’n to Def.’s Mot. to Dismiss, or, Alternatively, Mot. for Summ. J.

[“Opp’n”] at 1.) She does not identify any “specific facts showing that there is a genuine issue

for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Indeed, plaintiff’s

opposition contains no factual allegations. Plaintiff contends that “[d]efendant appears to be

maintaining that a person that has a hearing at Equal Employment Opportunity Commission

(EEOC) and Merit System Protection Board (MSPB) that it is precluded that a person can’t go to

the US District Court because of an unfavorable ruling.” (Opp’n at 2.) However, although

defendant’s brief relies on the testimony from the prior EEOC and MSPB hearings to establish a

record of the “legitimate, non-discriminatory reasons for plaintiff’s removal” and her

performance ratings (Def.’s Mem. at 31-37), defendant does not argue that these prior

proceedings preclude plaintiff’s lawsuit. Rather, defendant contends that evidence adduced in

those proceedings entitles it to summary judgment. (Id. at 38.)

       Plaintiff objects that “[t]here has been no facts being produced in this matter and

[defendant is] attempting to use the EEOC and MSPB as facts of this case.” (Opp’n at 3.) But

the hearing transcripts from these proceedings are part of the administrative record in this case,


                                                 3
and the Court is entitled to rely on the administrative record in a case brought under Title VII of

the Civil Rights Act of 1964.3 See, e.g., Hackley v. Roudebush, 520 F.2d 108, 150 (D.C. Cir.

1975) (“[T]he administrative record should be admissible for whatever weight the trial judge

wishes to accord it, and most de novo testimony would be in the nature of supplementation to

th[e administrative] record.”). That the Court’s review of plaintiff’s claims is de novo does not,

as plaintiff appears to claim, entitle her to discovery duplicative of that which is already in the

record. See id. (“[T]here is no reason why the de novo proceedings need duplicate the

administrative record..”).

        To the extent that plaintiff seeks discovery to complete or supplement what is already in

the record pursuant to Federal Rule of Civil Procedure 56(f),4 plaintiff has failed to “state with

‘sufficient particularity to the district court . . . why discovery [i]s necessary.’” Ikossi v. Dep’t of

Navy, 516 F.3d 1037, 1045 (D.C. Cir. 2008) (quoting Strang v. U.S. Arms Control &

Disarmament Agency, 864 F.2d 859, 861 (D.C. Cir. 1989)). “Federal Rule of Civil Procedure


        3
          Plaintiff does not assert any legal or other authority in support of her claim that “[i]t is well
established that the testimonies [in the administrative record] can only be used for impeachment
purposes and not as the law or facts of this case.” (Opp’n at 2.) In any event, this assertion is
incorrect. See Hackley v. Roudebush, 520 F.2d 108, 156 n.195 (D.C. Cir. 1975) (noting that
transcripts from underlying administrative hearings “may be admissible under [Federal Rule of
Evidence] 803(6) or (8)(B)”). Moreover, while “parties should be able to object to the admissibility
of particular portions of the administrative record on specific grounds,” whether such objections
should be sustained “depend[s] on the particular facts and circumstances of each case.” Id. Here,
plaintiff has made no attempt to specify portions of the administrative record she believes are
incomplete or otherwise objectionable, nor has she articulated a reason why the Court should not
rely on sworn testimony presented under penalty of perjury during an MSPB hearing at which
plaintiff was present and had the opportunity to question witnesses and respond to any statements
made by witnesses by providing her own testimony. (See SOMF, Ex. 25 at 7.)
        4
         Plaintiff’s opposition does not include a motion pursuant to Rule 56(f), nor does it include
an affidavit explaining why she cannot present facts essential to justify her opposition, as required
by the rule. Fed. Rule Civ. P. 56(f).

                                                    4
56(f) provides that a court may deny a motion for summary judgment or order a continuance to

permit discovery if the party opposing the motion adequately explains why, at that timepoint, it

cannot present by affidavit facts needed to defeat the motion.” Strang, 864 F.2d at 861. Here,

plaintiff has not stated why she cannot, absent discovery, present by affidavit facts essential to

justify her opposition defendant’s summary judgment motion. As such, the Court need not grant

plaintiff time to conduct such discovery before deciding defendant’s motion. See id.

       The only other argument plaintiff makes in her opposition is that defendant’s motion for

summary judgment is untimely because defendant has not filed an answer to the complaint in

this case. (Opp’n at 3.) However, under Federal Rule of Civil Procedure 56, a defendant may

move for summary judgment “at any time until 30 days after the close of all discovery.” Fed.

Rule Civ. P. 56(c)(1)(A); see also Jones v. U.S. Dep’t of Justice, 601 F. Supp. 2d 297, 302

(D.D.C. 2009) (“A defendant . . . is not required to respond in the form of an answer before

making a motion for summary judgment, which may be made by a defending party ‘at any

time.’”) (quoting Fed. Rule Civ. P. 56(c)(1)(A)); 10A C. Wright, A. Miller, M. Kane, Fed. Prac.

& Proc. 3d § 2718 (1998) (“A defending party is not required by the rule to file an answer before

moving for summary judgment.”). Accordingly, plaintiff’s argument that defendant’s motion

should be denied as untimely is unavailing.

       Plaintiff has failed to come forward with specific facts showing that there is a genuine

issue for trial, see Liberty Lobby, 477 U.S. at 256, and she has not explained why or what

discovery is necessary to supplement the administrative record in this case. Her mere statement

that she is “disputing” the facts as alleged by defendant is insufficient to prevent summary

judgment. (Opp’n at 1.) Moreover, she has failed to address any of defendant’s arguments


                                                 5
supporting its motion to dismiss, and binding case law establishes that the Court lacks

jurisdiction over plaintiff’s breach of contract claims and that plaintiff has failed to state valid

constitutional claims. See Brown, 425 U.S. at 828-29; Greenhill, 482 F.3d at 575-76. As such,

the Court will grant defendant’s motion to dismiss5 and for summary judgment. A separate

Order accompanies this Memorandum Opinion.



                                                         /s/
                                               ELLEN SEGAL HUVELLE
                                               United States District Judge

Date: September 13, 2010




       5
         Because the Court of Federal Claims may have jurisdiction over plaintiff’s claims that the
government violated the settlement agreement between the parties, the Court will dismiss these
claims without prejudice. See Greenhill, 482 F.3d at 575-76. Because plaintiff is precluded from
bring her constitutional claims against defendant in any court, the Court will dismiss these claims
with prejudice. See Brown, 425 U.S. at 828-29; Spagnola, 859 F.2d at 228-29.

                                                   6
