Grose v. Geithner et al

Filing 98

ORDER ADOPTING REPORT AND RECOMMENDATION TO PARTIALLY GRANT DEFENDANT'S MOTION TO DISMISS; DENYING ALL OTHER PENDING MOTIONS; SETTING DEADLINES FOR MOTIONS AND RESPONSES AND CONTINUING TRIAL. The report and recommendation is adopted as modified . Deft's motion to dismiss 77 is GRANTED as to the claims arising out of EEO administrative complaints EEODFS-06-0847-F and EEODFS-07-1159-M, but the motion is otherwise DENIED. The parties' motions for leave to file amended statements of facts [85 & 90] are DENIED without prejudice. Pla's motion for summary judgment 76 and deft's alternative motion for summary judgment are DENIED without prejudice. Pla's motion for sanctions 93 is DENIED. Motion filing and response deadlines as established in order. Trial of October 20, 2014 is continued, to be reset by the clerk. Signed by Judge James D. Todd on 10/03/2014. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
ANTHONY T. GROSE, SR.,
Plaintiff,
VS.
JACOB J. LEW, Secretary, United States
Department of the Treasury,
Defendant.

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No. 11-2562-JDT-cgc

ORDER ADOPTING REPORT AND RECOMMENDATION TO PARTIALLY
GRANT DEFENDANT’S MOTION TO DISMISS,
DENYING ALL OTHER PENDING MOTIONS,
SETTING DEADLINES FOR MOTIONS AND RESPONSES,
AND CONTINUING TRIAL

Plaintiff Anthony T. Grose, Sr., acting pro se, filed this employment discrimination
action against the U.S. Treasury Secretary (“Secretary”) on July 5, 2011. (ECF No. 1.) The
Court subsequently dismissed the complaint except for the claims against the Secretary
alleging discrimination on account of race, age, and disability under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act,
29 U.S.C. § 621 et seq., and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. (ECF
No. 8.) On February 13, 2012, Plaintiff filed an amended complaint (ECF No. 9), which the
Court allowed only insofar as Plaintiff sought to clarify and reorganize his allegations and
to expand the prayer for relief. (ECF No. 10 at 2.) Leave to amend was denied to the extent

that Plaintiff sought to reassert dismissed claims and to assert claims under 42 U.S.C.
§§ 1981, 1985(3) and 1986 and under 18 U.S.C. §§ 241 and 242. (Id. at 2-3.) After the
Secretary filed an answer, Plaintiff again sought to amend in order to reinstate his claims
against the dismissed Defendants. (ECF No. 39.) United States Magistrate Judge Charmiane
G. Claxton recommended that Plaintiff’s motion to amend be denied (ECF No. 41), and the
Court adopted that recommendation and denied leave to amend (ECF No. 44).
On April 4, 2014, Plaintiff filed a motion for summary judgment (ECF No. 76), which
Defendant subsequently moved to strike (ECF No. 79); Plaintiff then filed a motion seeking
to amend his motion for summary judgment (ECF No. 82). Also on April 4, 2014, Plaintiff
filed a motion to forward unattached exhibits (ECF No. 74) and a motion for an evidentiary
hearing (ECF No. 75). Defendant’s motion to dismiss or, alternatively, for summary
judgment was filed on April 4, 2014, as well. (ECF No. 77.)
Magistrate Judge Claxton issued an order on July 30, 2014, denying Plaintiff’s
motions to forward exhibits and for an evidentiary hearing, denying Defendant’s motion to
strike, and denying Plaintiff’s motion to amend his summary judgment motion. (ECF No.
83 at 14-17.) The Magistrate Judge also issued a Report and Recommendation in which she
recommended that Defendant’s motion to dismiss for failure to exhaust administrative
remedies be granted as to the claims stemming from EEO administrative complaints
EEODFS-06-0847-F and EEODFS-07-1159-M and denied as to the claims arising from
EEODFS-08-0166-F. (Id. at 5-13.) In addition, Magistrate Judge Claxton recommended that
both Defendant’s alternative motion for summary judgment and Plaintiff’s motion for
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summary judgment be denied for failure to comply with Federal Rule of Civil Procedure
56(c) and Local Rule 56.1(a)-(b). (Id. at 17-20.)1
On August 11, 2014, Defendant filed an objection to the Magistrate Judge’s
recommendation for denial of summary judgment (ECF No. 86), along with a motion for
leave to file an amended statement of undisputed facts (ECF No. 85). Defendant asks the
Court to modify the recommendation to allow the parties to file amended statements of
undisputed facts. Thereafter, Defendant asserts the Court should make a de novo ruling on
the motions for summary judgment or, alternatively, remand for another recommendation by
Magistrate Judge Claxton.
Plaintiff also filed a timely appeal of the Magistrate Judge’s denial of his motions and
objections to her recommendations (ECF No. 87), as well as a response to Defendant’s
motion to file an amended statement of undisputed facts (ECF No. 88). Defendant filed a
response to Plaintiff’s objections. (ECF No. 89.) On September 2, 2014, Plaintiff filed a
document titled “Plaintiff’s Motion for Leave of Court to File & Amended Statements of
‘Undisputed & Disputed’ Facts in Support for Plaintiff’s Motion for Summary Judgment and,
or Alternatively Demand for Trial By Jury.” (ECF No. 90.)
Plaintiff also filed a motion for sanctions on September 12, 2014 (ECF No. 93 & 94),
in which he appears to assert that Defendant engaged in witness tampering by somehow

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Magistrate Judge Claxton determined that neither Plaintiff nor Defendant had filed a proper statement of
undisputed facts containing accurate citations to evidence in the record.

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preventing him from locating and deposing Ms. McNeil prior to the close of discovery.
Defendant has filed a response to the motion. (ECF No. 97.)
With regard to Magistrate Judge Claxton’s denial of Plaintiff’s motions to forward
unattached exhibits, for an evidentiary hearing, and to amend his motion for summary
judgment, Plaintiff’s appeal is denied. The Court finds those rulings were not clearly
erroneous or contrary to law.
Plaintiff’s motion for sanctions is also denied.

Although Plaintiff knew the

whereabouts of Ms. McNeil before the Defendant did, Defendant nevertheless supplemented
his initial disclosures to provide Plaintiff with her contact information. Plaintiff deliberately
chose not to take her deposition. He has provided no evidence that Ms. McNeil was
“tampered” with in any way.
The Court has considered Plaintiff’s objections to the Magistrate Judge’s
recommendation to partially grant Defendant’s motion to dismiss on grounds of failure to
exhaust. Magistrate Judge Claxton thoroughly considered the law and the facts both as to
the exhaustion issue and as to whether equitable tolling should be applied. Nothing in
Plaintiff’s objections persuades the Court that her ruling on those issues should be modified
or rejected.

Therefore, the Court denies Plaintiff’s objections and adopts the

recommendation to grant Defendant’s motion to dismiss on the claims arising out of EEO
administrative complaints EEODFS-06-0847-F and EEODFS-07-1159-M but to deny the
motion to dismiss on the claims arising from EEODFS-08-0166-F.

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The parties’ objections to the Magistrate Judge’s recommendation to deny their cross
motions for summary judgment is denied. In addition, the Court denies the parties’ motions
asking the Court to modify that recommendation to allow them merely to file amended
statements of undisputed facts.2 Therefore, the recommendation to deny the cross motions
for summary judgment is adopted, but is modified to provide specifically that the denial is
without prejudice.
In summary, the parties’ objections to Magistrate Judge Claxton’s order and to her
report and recommendation are all DENIED, and the report and recommendation is
ADOPTED as modified. Accordingly, Defendant’s motion to dismiss (ECF No. 77) is
GRANTED as to the claims arising out of EEO administrative complaints EEODFS-060847-F and EEODFS-07-1159-M, but the motion is otherwise DENIED. The parties’
motions for leave to file amended statements of undisputed facts (ECF Nos. 85 & 90) are
DENIED without prejudice. Plaintiff’s motion for summary judgment (ECF No. 76) and
Defendant’s alternative motion for summary judgment also are DENIED without prejudice.
Plaintiff’s motion for sanctions (ECF No. 93) is DENIED.

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Plaintiff’s motion to amend his statement of undisputed facts still does not comply with Local Rule 56.1
or Federal Rule of Civil Procedure 56(c). The motion is accompanied by a 29-page “memorandum” (ECF No. 90-1)
that includes an “amended complaint” interspersed with numerous comments asserting that the factual allegations
are not in dispute, an objection to the Declaration of Pamela McNeil, a summary of the case as Plaintiff sees it, a
great deal of argument on the merits, and short synopses of various case law. Plaintiff’s motion is also accompanied
by 21 exhibits, consisting of 1,540 pages. (ECF Nos. 90-2 to 90-14, 91, & 92.) However, Plaintiff’s document
specifically cites only to portions of Exhibits 2, 4, 12, and 13. Instead, he makes general statements such as, “See,
‘all’ supporting evidence of genuine facts in attached Exhibits, Depositions, of Pruitt; Dyer; Conyers; Agency Report
of Investigation; Request for Admission and production of Documents” (ECF 90-1 at 5); “a genuine issues of
material facts as outline in ‘all’ the attached exhibit(s)” (id. at 11); and “Plaintiff contends base on ‘all’ exhibits
attached in this undisputed disputed issue(s) of facts, evidence . . . remains in dispute” (id. at 13). However, the
Court is not obligated to comb through all of Plaintiff’s numerous documents to determine if there is specific
evidence that supports his factual assertions. He must provide the Court with those citations.

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Defendant may file a second motion for summary judgment on or before November
3, 2014. Within 28 days after service of Defendant’s motion, Plaintiff may file a response
to Defendant’s motion.3 Defendant may file a reply within 14 days after Plaintiff’s response,
and Plaintiff may file a sur-reply within 14 days after Defendant’s reply.
Defendant’s initial brief and Plaintiff’s response brief shall not exceed 20 pages, and
their statements of undisputed material facts may not exceed 10 pages. Defendant’s reply
and Plaintiff’s sur-reply shall not exceed 15 pages, including any further statements of
undisputed material facts. No further briefing will be permitted. The Court will then await
another report and recommendation from Magistrate Judge Claxton.
The trial of this case, currently scheduled for October 20, 2014, is hereby
CONTINUED and will be reset by the Clerk.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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It is unnecessary for Plaintiff to file a separate cross-motion for summary judgment. He should make all
of his arguments in his response to Defendant’s motion. While Plaintiff should respond to Defendant’s statement of
undisputed facts and may also file his own in accordance with Local Rule 56.1(b), he need not re-file the voluminous
exhibits he has already filed. He may include citations to those exhibits currently filed in Docket Entries 90, 91, and
92, provided the citations are sufficiently specific.

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