UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

sHARoN M. HARRISoN,
Piaintiff,

"' civil Acri@n No. 09-01364 (CKK)

OFFICE OF THE ARCHITECT OF THE
CAPITOL,

Defendant.

MEM()RANDUM OPINION AND ORDER
(March 29, 2()12)

Plaintiff Sharon M. Harrison ("Harrison") brings this employment discrimination and
retaliation action against her employer, the Office of the Architect of the Capitol (the "AOC").
After discovery concluded, the AOC filed a [32] Motion for Summary Judgment.l Harrison
responded by, among other things, filing a [38] Motion for Relief Pursuant to F ederal Rule Civil
Procedure 56(D ("Motion for Relief’).z Despite the title, the Court construes Harrison’s Motion

for Relief as arising under Federal Rule of Civil Procedure 56(d),3 which delineates those

1 The motion remains pending and will be resolved in a subsequent opinion.

2 To be precise, Harrison first responded by filing an opposition that failed to comply with the
Local Rules of this Court and the directives set forth in the Court’s [30] Scheduling and
Procedures Order. On July l, 201 l, the Court struck Ham`son’s original opposition and directed
her to submit a revised opposition. See Mem. Order (July l, 2011), ECF No. [36]. Among other
things, the Court addressed Harrison’s apparent intention to "oppose [the AOC’S] motion on the
basis that she has not yet been provided with certain discovery." Ia’. at 4. In this regard, the
Court expressly warned Harrison that, "to the extent [she] intends to oppose [the AOC’S] motion
on the basis that she ‘cannot present facts to justify [her] opposition,’ she must support that
contention ‘by affidavit or declaration’ and provide ‘specified reasons."’ Ia’. (citing FED. R. CIV.
P. 56(d)) (notations in original).

3 Rule 56(d) was formerly designated as Rule 56(t).

l

circumstances under which a party may resist a motion for summary judgment on the basis that
she "cannot present facts essential to justify [her] opposition.” FED. R. CIV. P. 56(d). Upon
careful consideration of the parties’ submissions,4 the relevant authorities, and the record as a
whole, the Court finds that Harrison has failed to carry her burden under Rule 56(d).
Accordingly, her [38] Motion for Relief shall be DENIED.
I. LEGAL STANDARD AND DISCUSSION
Harrison seeks relief under Federal Rule of Civil Procedure 56(d), which provides:
When Facts Are Unavailable to the Nonmovant. If a
nonmovant shows by affidavit or declaration that, for specified

reasons, it cannot present facts essential to justify its opposition [to
a motion for summary judgment], the court may:

(1) defer considering the motion or deny it;

(2) allow time to obtain affidavits or declarations or to take
discovery; or

(3) issue any other appropriate order.

FED. R. CIV. P. 56(d). The decision of whether to grant or deny relief under Rule 56(d) is
discretionary and entrusted to the district court. Pardo-Kronemann v. Donovan, 601 F.3d 599,
611-12 (D.C. Cir. 2010). Harrison, as the party seeking relief under Rule 56(d), bears the
burden of making the required "showing." That is, Harrison must demonstrate "that, for
specified reasons, [she] cannot present facts essential to justify [her] opposition" to the AOC’s

Motion for Summary Judgment. FED. R. CIV. P. 56(d). For at least five separate reasons, any

4 Although the Court’s decision is based on the record as a whole, its consideration has focused
on the following documents: Plaintiff’s [43-1] Second Revised Memorandum of Law and Points
and Authorities in Support of her Motion for Relief Pursuant to Federal Rule Civil Procedure
56(f) ("Memorandum"); and Defendant’s [41] Reply to Plaintiff s Opposition to Defendant’s
Motion for Summary Judgment. Although Harrison was allocated until August 22, 2011 to file a
reply, the public docket reflects that she elected not do so. See LCvR 7(d); FED. R. CIV. P. 6(d).
Accordingly, the motion is fully briefed and ripe for a decision. In an exercise of its discretion,
the Court concludes that holding oral argument would not be of assistance in rendering a
decision. See LCvR 7(t).

one of which is sufficient to deny the relief sought, the Court finds that Harrison has failed to
discharge her burden.

First, a party seeking relief under Rule 56(d) must identify the additional discovery she
would seek to oppose a motion for summary judgment "concretely" and with "sufficient
particularity." See Strang v. U.S. Arms Control & Dz'sarmament Agency, 864 F.2d 859, 861
(D.C. Cir. 1989); Messz`na v. Krakower, 439 F.3d 755, 762 (D.C. Cir. 2006). Here, Harrison
never identifies the discovery she wants with any meaningful measure of specificity. lndeed, it
is not even clear from Harrison’s vague and disjointed submission whether she even wants any
additional discovery. Throughout her Motion for Relief, Harrison complains that the AOC
should have produced a copy of a report prepared by the AOC’s Office of lnspector General in
connection with an investigation into allegations raised by Harrison (the "OIG Report") during
discovery in this case, and faults the AOC for failing to provide her with updates as to the
progress of the investigation. See Pl.’s Mem. at 5-8. However, by the time Harrison filed her
opposition to the AOC’s Motion for Summary Judgment in this case, Harrison already had a
copy of the OIG Report because it had been filed in a related civil action almost four months
earlier. See Report of Investigation OlG-l-10-05, Harrison v. Ofj€ce of the Archz`tect of the
Capitol, Civil Action No. 11-00420 (CKK) (D.D.C.), ECF No. [12]. ln fact, in her opposition to
the AOC’s Motion for Summary Judgment in this case, Harrison actually relies upon the OIG
Report. See Pl.’s Mem. at 38-40. In short, the OIG Report was not "unavailable" to Harrison at
the time she filed her opposition and, as a result, it cannot serve as a basis for relief under Rule
56(d). Meanwhile, to the extent Harrison intended to suggest that she might have sought
additional discovery in this action had the OIG Report been available sooner, she was obligated

under Rule 56(d) to specifically z'a’entm/ that discovery. Because she has completely failed to do

so, her Motion for Relief fails on this basis alone. Cf Dunning v. Quana’er, 508 F.3d 8, 9 (D.C.
Cir. 2008) (per curiam) (finding the plaintiff’ s suggestion that he would take depositions of the
decision-makers involved in the challenged employment action to be insufficiently particularized
to support relief under Rule 56(d)).

Second, and in a similar vein, a party seeking relief under Rule 56(d) must articulate a
plan for obtaining the discovery alleged to be unavailable. See Garcz'a v. U.S. Air Force, 533
F.3d 1170, 1180 (10th Cir. 2008). In this regard, Harrison’s Motion for Relief does not even
allude to, let alone articulate, a specific, non-objectionable discovery request. Because
Harrison’s submission is devoid of a single concrete request for additional discovery, her Motion
for Relief fails on this separate, independent basis. See Estate ofParson v. Palestz`nian Auth.,
715 F. Supp. 2d 27, 35 (D.D.C. 2010) (providing that a party seeking relief under Rule 56(d)
cannot rely upon "a generalized request to conduct discovery" but must identify what "further
specified discovery" is needed), ajj"a’, 651 F.3d 118 (D.C. Cir. 2011).

Third, a party seeking relief under Rule 56(d) must establish that the discovery she seeks
is "essential to justify [her] opposition." FED. R. CIV. P. 56(d). Stated somewhat differently, a
party must show that the requested discovery, if obtained, "would alter the court’s
determination." Cheyenne Arapaho Tril)es of Oklahoma v. Unz'ted States, 558 F.3d 592, 596
(D.C. Cir. 2009). In this case, because Harrison fails to discharge her threshold burden of
specifically identifying what discovery is needed, she also fails to explain why that discovery
would be "essential" in opposing the AOC’s Motion for Summary Judgment in this case, Her
failure to do so is particularly problematic because Harrison actually references and relies upon
the contents of the OIG Report in her opposition. See Pl.’s Mem. at 38-40. Indeed, in her view,

the OIG Report constitutes "direct evidence" of discriminatory animus on the part of Stephen P.

Hayleck, the focus of many of Harrison’s allegations in this case. Ial. at 39. And yet, Harrison
never specifically identifies what other evidence she would seek above and beyond the OIG
Report and then articulate why it is "essential" to her opposition. Absent that showing, so far as
the Court is concerned, any additional evidence might very well be immaterial, cumulative, or
otherwise not "essential." Accordingly, Harrison’s Motion for Relief fails on this separate,
independent basis. Cf Carpenter v. Fed. Nat’l Mortg. Ass ’n, 174 F.3d 231, 237-38 (D.C. Cir.)
(concluding that the district court acted within its discretion in denying additional discovery

under Rule 56(d) where the plaintiff failed to identify what new facts could be obtained to

support her theory of pretext), cert. a'eniea', 528 U.S. 876 (1999); M0ses v. Doa’aro, 774 F. Supp.

2d 206, 215-16 (D.D.C. 2011) (finding that the plaintiff s contention that discovery would
demonstrate discrimination was insufficient to warrant additional discovery).

Fourth, and on a similar note, a party seeking relief under Rule 56(d) may not rely on
speculation that discovery will produce material evidence. Nat ’l Uhion Fire Ins. Co. of
Pittsburgh, Pa. v. Stroh Cos., Inc., 265 F.3d 97, 117 (2d Cir. 2001). Rather, she must adduce
"support for the proposition that discovery would have produced the evidence she anticipated."
Messina, 439 F.3d at 163 n.6. In this case, because Harrison fails to discharge her threshold
burden of specifically identifying what discovery is needed, she also fails to demonstrate that
additional discovery would, at the very least, be likely to uncover evidence essential to her
opposition to the AOC’s Motion for Summary Judgment Accordingly, her Motion for Relief
also fails on this separate, independent basis.

Fifth, and finally, the showing required by Rule 56(d) must be made "by affidavit or
declaration." FED. R. CIV. P. 56(d). The affidavit or declaration itself must "identify . . . the

specific facts that further discovery would reveal, and explain why those facts would preclude

summary judgment." Tatum v. City & Cnty. ofSan Francz`sco, 441 F.3d 1090, 1100 (9th Cir.
2006); see generally 11-56 J ames Wm. Moore et al., l\/IOORE’S FEDERAL PRACTICE §§ 56.100,
56.101 (3d ed. 1999) (identifying what the affidavit or declaration should include). In this case,
Harrison has personally executed a declaration in support of her Motion for Relief. See Revised
Decl. of Pl. Sharon M. Harrison, ECF No. [43-1]. However, Harrison’s declaration merely faults
the AOC for failing to provide her with updates as to the progress of the investigation See ia’. 111
141 -1 52. lt does not identify the specific facts that further discovery would reveal or explain
why those facts would preclude summary judgment. Accordingly, her Motion for Relief fails on
this separate, independent basis.
II. CONCLUSION AND ORDER
For the reasons set forth above, it is, this 29th day of March, 2012, hereby
ORDERED that Harrison’s [38] Motion for Relief is DENIED.

SO ORDERED.

/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge

