UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DONNA M. HAWKINS,
Plaintiff,
Civil Action No. 09-1788 (CKK)
v.
SHAUN DONOVAN, Secretary of Housing
and Urban Development,
Defendant.
MEMORANDUM OPINION
(July 22, 2010)
Plaintiff Donna M. Hawkins, an employee of the Office of Inspector General (“OIG”)
within the U.S. Department of Housing and Urban Development (“HUD”), brings this case
against Defendant Shaun Donovan, in his official capacity as Secretary of HUD. Plaintiff alleges
that she was unlawfully retaliated against by Defendant for her participation in protected EEO
activity and for her opposition to HUD’s unlawful employment practices. Currently pending
before the Court are Defendant’s [9] Motion to Dismiss or, in the Alternative, for Summary
Judgment and Plaintiff’s [13] Motion for Continuance to Conduct Discovery pursuant to Federal
Rule of Civil Procedure 56(f). Upon a searching review of the parties’ submissions, applicable
case law, statutory authority, and the entire record of the case herein, the Court shall GRANT
Plaintiff’s Motion for Continuance to Conduct Discovery pursuant to Rule 56(f) and DENY
WITHOUT PREJUDICE Defendant’s Motion to Dismiss or, in the Alternative, for Summary
Judgment, for the following reasons.
LEGAL STANDARD AND DISCUSSION
It is well established that when, on a Rule 12(b)(6) motion, “matters outside the pleadings
are presented to and not excluded by the court, the motion must be treated as one for summary
judgment under Rule 56.” FED . R. CIV . P. 12(d). In the present case, Defendant has submitted
and relied extensively upon several affidavits and exhibits in support of his arguments in favor of
dismissal. In so doing, he has failed to identify or otherwise indicate which of these arguments,
if any, he purports nonetheless may be resolved solely on the basis of the pleadings without the
need to rely on matters outside the Complaint. From the Court’s own review of the motion, it
appears that each of Defendant’s arguments in favor of dismissal is largely, if not entirely,
predicated upon the Court’s acceptance of facts set forth in Defendant’s attached exhibits and
affidavits. As resolution of Defendant’s motion therefore depends upon factual matters outside
the pleadings, the Court must treat the motion as one for summary judgment pursuant to Rule 56.
Consequently, the only question now before the Court is whether Defendant is entitled to
summary judgment on the present record prior to the commencement of discovery.
As the D.C. Circuit has consistently cautioned, summary judgment “ordinarily ‘is proper
only after the plaintiff has been given adequate time for discovery.’” Americable Int’l, Inc. v.
Dep’t of Navy, 129 F.3d 1271, 1274 (D.C. Cir. 1997) (quoting First Chicago Int’l v. United
Exch. Co., 836 F.2d 1375, 1380 (D.C. Cir. 1988)). Pursuant to Federal Rule of Civil Procedure
56(f), 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 time[], it cannot
present by affidavit facts needed to defeat the motion.” Strang v. United States Arms Control &
Disarmament Agency, 864 F.2d 859, 861 (D.C. Cir. 1989); Londrigan v. Fed. Bureau of
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Investigation, 670 F.2d 1164, 1175 (D.C. Cir. 1981). In particular, the D.C. Circuit has
cautioned that Title VII cases ordinarily cannot be resolved based on an administrative record
and that plaintiffs are therefore generally entitled to take discovery that might reveal, for
example, motivations that “lie at the heart of [] discrimination claims.” Ikossi v. Dep’t of Navy,
516 F.3d 1037, 1045-46 (D.C. Cir. 2008).
In the present case, Defendant’s Motion for Summary Judgment was filed prior to
discovery in this litigation, and Plaintiff has identified potential discovery that is needed to
oppose Defendant’s Motion, including (but not limited to) discovery relating to: Defendant’s
decision to cancel the competition for the Assistant Division Director position in October of
2008 and to select Mr. Michael Beard for lateral reassignment into that position; the decision-
makers’ knowledge of Plaintiff’s interest in and application for the Assistant Division Director
position; HUD OIG’s implementation of the hiring freeze at issue; and raw budget, personnel
allocation, and staffing data. See Pl.’s Mot. for Con’t, Ex. 1 ¶¶ 59-60 (Affidavit of Robert C.
Seldon). The Court finds that Plaintiff’s Motion for a Continuance and the attached affidavits —
in particular, the attached Rule 56(f) affidavit by Plaintiff’s Counsel, Robert C. Seldon —
sufficiently demonstrate that Plaintiff is entitled to take discovery and should not be forced to
litigate the merits of her claim based solely on the documentation that is currently available. See
Chappell-Johnson v. Powell, 440 F.3d 484, 489 (D.C. Cir. 2006) (finding that the plaintiff was
entitled to take discovery where her counsel’s Rule 56(f) affidavit identified evidence that might
raise an inference of discrimination). Accordingly, the Court shall grant Plaintiff’s Motion for a
Continuance to Conduct Discovery pursuant to Rule 56(f) and deny without prejudice
Defendant’s Motion for Summary Judgment.
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CONCLUSION
For the reasons above, the Court treats Defendant’s Motion to Dismiss or, in the
Alternative, for Summary Judgment, as a motion for summary judgment pursuant to Rule 56
only. With that understanding in mind, the Court shall DENY WITHOUT PREJUDICE
Defendant’s [9] Motion for Summary Judgment and shall GRANT Plaintiff’s [13] Motion for
Continuance to Conduct Discovery pursuant to Rule 56(f). An appropriate Order accompanies
this Memorandum Opinion.
Date: July 22, 2010
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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