In Foxworth v. Denis McDonough, 2024 WL 111761 (D.D.C. Jan. 10, 2024), the court, inter alia, denied defendant’s motion for summary judgment on plaintiff’s sex discrimination and retaliation claims asserted under Title VII of the Civil Rights Act of 1964.
From the decision:
The Court cannot conclude at this point that Foxworth has established a genuine issue of material fact. Still, Foxworth shows that discovery is warranted. To justify deferring summary judgment to take additional discovery, the non-moving party must generally “show[ ] by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition.” Fed. R. Civ. P. 56(d). Further, the affidavit or declaration must (1) “outline the particular facts [the nonmovant] intends to discover and describe why those facts are necessary to the litigation,” (2) “explain why [the nonmovant] could not produce the facts in opposition to the motion for summary judgment,” and (3) “show the information is in fact discoverable.” Convertino v. DOJ, 684 F.3d 93, 99–100 (D.C. Cir. 2012) (cleaned up).
Foxworth argues for discovery in her Opposition without submitting an affidavit or declaration. But, for Rule 56(d) purposes, an opposition memorandum can serve as “as the functional equivalent of an affidavit” so long as it “alert[s] the district court of the need for further discovery.” First Chicago Int’l v. United Exch. Co., 836 F.2d 1375, 1380 (D.C. Cir. 1988); see also Butler v. Schapiro, 839 F. Supp. 2d 252, 258 (D.D.C. 2012) (“Even in the absence of an affidavit, courts may nonetheless postpone summary judgment if additional filings in the case have served as the functional equivalent of an affidavit[.]” (cleaned up)). In her Opposition, Foxworth argues that discovery is necessary to investigate comparators and to probe her supervisor’s motives in issuing the LOA and assessing her performance. Opp’n at 28–29. She hopes to obtain “communications between Mr. Martin and other Agency officials regarding the adverse actions at issue.” Id. at 29. She also intends to depose Martin regarding these actions. Id. According to Foxworth, this information is not included in the administrative record. Id.
The Court is mindful that summary judgment is usually “premature unless all parties have had a full opportunity to conduct discovery.” Convertino, 684 F.3d at 99 (cleaned up). Construed generously, Foxworth’s Opposition “states with sufficient particularity why additional discovery is necessary.” Id. Though the Opposition does not “identify precisely what evidence it is hoped will be discovered … [t]his lack of precision does not make any less self-evident … the nature of the evidence [Foxworth] seeks.” Ikossi v. Dep’t of Navy, 516 F.3d 1037, 1045 (D.C. Cir. 2008). It is self-evident, for example, that deposing her supervisor might provide evidence of pretext. See Moore-Davis v. U.S. Dep’t of the Navy, No. 21-cv-3402, 2023 WL 6276637, at *6 (D.D.C. Sept. 26, 2023) (granting Rule 56(d) motion to depose supervisor in employment discrimination case). With no discovery so far, Foxworth has not had the chance to obtain this information. And the Court sees no reason why the information Foxworth seeks—internal communications and the deposition—would not be discoverable. Nor does the Secretary argue that Foxworth’s reasons for needing discovery are unfounded. Foxworth thus satisfies the Convertino factors. Accordingly, the Court denies the Secretary’s motion for summary judgment without prejudice.
This decision thus illustrates that courts will hesitate before awarding summary judgment, particularly where the factual record is incomplete.