We just got a pretty good summary judgment decision in a D.C. District Court case, Herbert v. Architect of the Capitol, Civil Action No. 09-01719 (CKK). The decision is on Lexis, at 2012 U.S. Dist. LEXIS 37129.

It's the first case I can remember in a little while where the D.D.C. has let a hostile work environment claim survive summary judgment, but the case is really a civil procedure case, as she does not actually discuss the merits of the hostile environment claim.

A couple of points I thought were interesting in the case:

(1) The judge required us to split up the Plaintiff's case because some of the things we alleged in this civil action happened after discovery was well under way in a prior case we had filed. The court granted summary judgment on the prior claim (which if I am remembering correctly was premised on a reprimand). Judge Kollar Kotelly has left the door open for us to raise even the claims that were dismissed in the prior case as elements of the hostile environment in this case.

(2) She recognizes that even settled claims can be used as background to establish the hostile environment;

(3) She also recognized that - in some circumstances - discrete actions are suitable for consideration under a hostile environment theory. This is counter to some of her earlier decisions.

(4) A word to the wise when putting your facts together with Judge Kollar Kotelly: When you are citing to the factual support for your contention, cite to everything you have. Don't stop at one or two cites if you have 3 or 4 possible cites, as the following footnote illustrates:

Herbert has submitted a declaration with his opposition, which he cites in support of other allegations in his responsive statement of material facts. The Court is aware that, in his declaration, Herbert alleges that "[a]cting as a point man during Congressional [*13] moves entitles employees to better performance appraisals." Decl. of Cornell Herbert ("Herbert Decl."), ECF No. [43-5], ¶ 3. The Court declines to consider this allegation because Herbert failed to cite it as support for his contention that "[a]cting as a point man entitles employees to better performance appraisals." Pl.'s Resp. Stmt. ¶ 20 (citing Williams Decl. ¶ 11). See Fed. R. Civ. P. 56(c)(3) ("The Court need consider only the cited materials."); Scheduling & Procedures Order (Feb. 24, 2011) ("Scheduling Order"), ECF No. [34], ¶ 6(f) ("The parties must furnishprecise citations to the portions of the record on which they rely; the Court need not consider materials not specifically identified.") (bold in original). By doing so, Herbert failed to put the AOC on notice that he was relying on the allegation in his declaration and deprived the AOC of an opportunity to render a meaningful response.

Luckily for us, the point we were trying to make here was a very minor part of his claim. The AOC fared much worse. Kollar Kotelly basically ignored all of their arguments against our hostile environment because of a lack of clear citations to the record:

Meanwhile, where the AOC does address specific component acts identified by Herbert in its reply, its response almost invariably contravenes the terms of this Court's Scheduling and Procedures Order. Simply by way of example, the AOC (1) improperly attempts to incorporate argument made in its memoranda instead of setting forth all the information relevant to its response in its correspondingly numbered paragraph, see Def.'s Reply Stmt. ¶¶ 45-47, 49-50, 56-60, 102-111, (2) fails to offer precise citations to evidence in the record, id. ¶¶ 46-48, 49-53, 55-60, 65-119, and (3) fails to segregate its response to each paragraph in Herbert's responsive statement with a separate corresponding paragraph, see id. ¶¶ 46-47, 49-50, 52-53, 56-60, 66-72, 74-75, 76-79, 80-83, [*40] 86, 98-99, 102-111, 113-119. The Court declines to consider a response so plainly non-compliant with its directives.

– submitted by Les Alderman

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