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).
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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
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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.
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(“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.)
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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
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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