1
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
VALERIE KLINE, )
)
Plaintiff, )
)
v. ) Civil Action No. 07-0451 (JR)
)
LINDA M. SPRINGER, DIRECTOR, )
U.S. Office of Personnel Management, )
)
Defendant. )
____________________________________)
DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION FOR LEAVE TO FILE
SURREPLY AND AMENDED OPPOSITION TO DEFENDANT’S STATEMENT OF
MATERIAL FACTS AND DEFENDANT’S MOTION FOR STAY
OF FURTHER DISCOVERY PENDING A RULING ON
DEFENDANT’S MOTION TO DISMISS OR FOR SUMMARY JUDGMENT
I. Introduction
Plaintiff has filed a motion for leave to file a surreply and amended opposition to
defendant’s statement of material facts not in dispute. R. 48. Plaintiff has also requested that
defendant provide dates before June 16, 2008, for additional depositions of Arlene Taylor, Lara
Rivera-Lopez, Jose Velaquez, Issac Evans, Stephen Hickman and Miriam Johnson. See
Attachment A, hereto (Text of email from Kline to Defendant’s counsel, dated 5/13/08).
Defendant does not object to plaintiff’s motion for leave to file a surreply and amended
opposition to the extent that she attempts to respond to defendant’s reply. However, defendant
does objects to plaintiff’s request to take additional discovery, specifically, the six additional
requested depositions. Plaintiff has not offered, nor can she, any relevant basis for these
depositions. Plaintiff does not argue, nor can she, that she otherwise would meet the showing
Case 1:07-cv-00451-JR Document 49 Filed 05/23/2008 Page 1 of 8
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necessary for discovery under Fed. R. Civ. P. 56(f). As previously briefed in this matter, none of
these individuals were similarly-situated to plaintiff. See R. 41 & 45. Thus, plaintiff’s requested
depositions would serve no legitimate purpose, would be unduly burdensome and harassing, and
would not satisfy the requirements of Fed. R. Civ. P. 56(f) at this stage of the proceedings.
Accordingly, plaintiff’s request for additional discovery should be denied.
II. Discussion
A. Response to Plaintiff’s Motion for Leave to File a Surreply & Amended
Opposition to Defendant’s Statement of Material Facts Not in Dispute.
As noted above, defendant does not object to plaintiff’s motion for leave to file a surreply
to the extent that she is presenting argument in response to defendant’s reply. However, as
provided by the ROI and the evidence adduced to date, including plaintiff’s own filings,
deposition testimony, and other documents provided in discovery all show that plaintiff was not
similarly-situated with any of her proposed comparators. See R. 45 at pp. 5-7; see also,
Attachments B-H, hereto. Accordingly, plaintiff’s filing offers no additional evidence upon
which the Court may properly rely.
Plaintiff’s argument at p. 2 of her surreply that she “can show that the relevant aspects of
her employment situation are or were nearly identical to the employees she was comparing
herself to, such as Jacquline Carter, Robert Coco, Lara Rivera-Lopez, and Issac Evans, because
she was either performing the same relevant duties, was the same grade or in other ways nearly
identical to these employees” misstates the law, is incorrect and is not supported by the record.
Contrary to plaintiff’s representations, the deposition testimony and the record before the Court
does not show that Ms. Kline was similarly-situated to the individuals with whom she attempts
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1 With the exception of Attachment A (plaintiff’s email regarding additional depositions)
and Attachments C & D, plaintiff’s & Ms. Carter’s position descriptions, the other documents
have been previously filed at R. 41. However, because those documents may not be readily
available to the Court, defendant attaches them to this filing.
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to compare herself. See Transcript Excerpts attached to Defendant’s Reply (R. 45, Att. A-C); see
also Position Descriptions attached to Defendant’s Opposition to Plaintiff’s Motion for Sanctions
(R.41) and attached, hereto, for the Court’s convenience.1
Defendant also notes that plaintiff’s newly filed motion departs significantly from her
first motion for leave to file a surreply, which plaintiff subsequently withdrew when she filed a
revised motion in substitution. See R. 47 and R. 48. In her original filing, Ms. Kline provided
the Court with an excerpt from Jacquline Carter’s deposition testimony. Ms. Carter was
plaintiff’s reviewer for regulatory matters. See R. 47 at pp. 9-10. In this excerpt, Ms. Carter
relates at least one problematic incident involving plaintiff. While Ms. Carter was away on
vacation, Ms. Kline, without first seeking requisite approval from her supervisor, sent a
regulatory package from OPM to the Federal Register for publication that had not been approved
by OMB. Id. In plaintiff’s second motion, she declined to include this excerpt. R. 48. Instead,
Ms. Kline states that the incident was the subject of another EEO proceeding and refers the
Court to an attachment. However, defendant notes that the attachment provided by Ms. Kline
shows that the incident related by Ms. Carter occurred on or about December 21, 2005. Id. Att.
2 at p. 5. Although outside of the rating period at issue in this case, the event was closely related
in time to plaintiff’s performance period and reflected the ongoing concerns of her supervisors
with her performance in the regulatory area. This lends additional credence to the correctness of
defendant’s fully successful rating of plaintiff which she challenges here.
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Defendant also observes that plaintiff’s Amended Opposition to Statement of Material
Facts in Dispute still does not conform to the requirements of Local Rule LCvR 7(h). See
Defendant’s Reply, R. 45, pp. 2-3.
B. Further Discovery in this Case Should be Stayed Pending a Ruling on Defendant’s
Pending Motion to Dismiss, or in the alternative, for Summary Judgment.
On at least one occasion, this Court has instructed Ms. Kline that after a motion to
dismiss or for summary judgment has been filed by defendant in these proceedings, should
plaintiff seek further discovery, she must proceed under Fed. R. Civ. P. 56(f). See Transcript of
Status Conference on November 15, 2007. See R.26. Instead of proceeding under Rule 56(f) and
providing an affidavit explaining why further discovery would be necessary in order to respond
to defendant’s motion, plaintiff responded with a full and lengthy opposition, with numerous
attachments. R. 40. Instead of requesting discovery under Rule 56(f), plaintiff chose to file a
motion for sanctions, purportedly under Rule 56(f). See R. 39. Defendant has responded to both
these filings. R.40 & R. 41. Now plaintiff has, in an effort to bypass the procedure set forth in
Rule 56(f), notified defendant of her intent to take the depositions of six individuals, i.e., Arlene
Taylor, Lara Rivera-Lopez, Jose Velaquez, Issac Evans , Stephen Hickman, Miriam Johnson.
See Attachment A, hereto (email from Valerie Kline, dated 5/13/08). Ms. Kline has already
taken the depositions of three employees in her office, i.e., Robert Coco, Jacqueline Carter and
Shirley Sewell prior to the filing of defendant’s dispositive motion. See Transcript Excerpts
attached to Defendant’s Reply to Plaintiff’s Opposition to Defendant’s dispositive motion, R. 45.
By notifying defendant of her intent to take depositions of additional witnesses
[Attachment A], not only has Ms. Kline bypassed the Rule 56(f) requirements, by this request,
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she would exceed, by four, the number of depositions ordinarily permitted in this type of
proceeding. Defendant respectfully requests that a stay of discovery be issued pending
resolution of defendant’s motion to dismiss or for summary judgment. The grounds for this
request are as follows:
1. Plaintiff was instructed on the proper procedure under Fed. R. Civ. P. 56(f) and failed
to follow it. Transcript of 11/15/07 Status Conference. R. 26, pp. 3-4.
2. The burden on OPM’s Publication Management Group (“PMG”) and the individuals
is unwarranted. Ms. Kline wishes to establish through the new depositions that she was
similarly-situated to the proposed deponents or others and was treated differently from them.
See e.g., Plaintiff’s Opposition at Statement of Material Facts Not in Dispute, ¶¶ 5, 27, 28, 29,
30, 33, 39, 42; Opposition at pp. 10, 19, 22, 23, 29, 30, 33. Were plaintiff’s request for a new
round of depositions permitted, plaintiff will have taken the deposition of virtually every staff
member of PMG at the time of her alleged claims of discrimination, retaliation and hostile work
environment, except the alleged discriminating officials. See Attachment B (Excerpts from the
Report of Investigation--personnel listings, one of which is attached to plaintiff’s opposition at
R. 40-5, p. 17 of 80). Moreover, it would be only a matter of time before she would request to
take the depositions of Messrs. Benedi and Davis. As she had an opportunity to take any
deposition she wished to take without restriction before defendant’s dispositive motion was filed
and because she failed to file a Fed. R. Civ. P. 56(f) affidavit after defendant’s motion was filed,
plaintiff should be excluded from further discovery during the pendency of defendant’s
dispositive motion.
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3. The depositions would not establish that she was similarly-situated to any of the
employees she worked with in PMG during the period of her complaints. As previously noted, it
has already been established that Ms. Kline was not similarly-situated to:
a. Jacquline Carter. See Attachment D & at R. 45 at p. 5;
b. Robert Coco. id. at 6 & Attachment H, hereto;
c. Shirley Sewell, R. 45, p. 6 & Attachment E, hereto;
d. Lara Rivera-Lopez, R.45 at p. 6;
e. Jose Velaquez, id.;
f. Issac Evans, id. at p. 7; Attachment I, hereto
g. Miriam Johnson, R. 45 at p. 7.; Attachment F, hereto.
With regard to Stephen Hickman, he was not employed at PMG at the time of plaintiff’s
EEO complaints that are the subject of this civil action. He, therefore, could not be similarly-
situated to Ms. Kline during the relevant period before the Court. To the extent that Ms. Kline
attempts to establish that Mr. Hickman now performs the duties that Ms. Carter performed
before she retired, as Ms. Kline’s duties are and were significantly different then Ms. Carter’s at
the time of the allegations, it is impossible to determine what admissible evidence plaintiff
believes she can uncover by taking his deposition. Although she argues that she “retained the
regulatory duties . . . under her old Position Description. [Pl. Surreply at p. 3], she cannot refute
that her duties were changed in May of 2003, that the regulatory function was only a portion of
her new responsibilities and she was responsible for assisting Mr. Coco. See Attachments C, D
& H. Indeed, when she worked exclusively on regulatory matters, her role was to assist Ms.
Carter; Ms. Carter reviewed her work. See e.g. R. 45, Att. A at p. 22, lines 18-22; p. 23, lines 1-
22; p. 39, lines 13-22.
It is undisputed that Ms. Carter performed supervisory review of Ms. Kline’s regulatory
work. There is no claim before this Court related to the changed position description.
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Moreover, as a cursory review of the attached position descriptions show, that none of the
alleged comparators were “nearly identical” to plaintiff as plaintiff urges. These position
descriptions, which are attached hereto for the Court’s convenience, show that Ms. Sewell, Ms.
Heard-Johnson, Mr. Hickman, Mr. Evans and Mr. Coco were not similarly-situated to Ms. Kline.
Attachment B also shows that the only employees that were at Ms. Kline’s grade of GS-12 were
Leon Brody, the librarian, and Miriam Johnson, a Lead Printing Services Specialist. As noted
previously, Ms. Rivera-Lopez and Mr. Velasquez were not members of PMG’s staff and not
reflected on the roster [Attachment B], but were detailees from another office on a temporary
assignment with PMG. R. 45, p. 6.
With regard to Arlene Taylor, she was also not a member of PMG, and therefore, not
similarly-situated to Ms. Kline. See Attachment B. To the extent that Ms. Kline attempts to
elicit testimony concerning the “offensive” email, she must first establish that it was offensive.
A perusal of the email shows that there is nothing offensive about it:
Arlene:
Good afternoon!!!
I happened to notice that you were in our office twice today for a good amount of
time. I then discovered that there are changes being made to [Federal Register
Management System] FRMS. What changes?
The FRMS is the responsibility of PMG and as such no changes, other then
technical should be made without explicit authorization from Claudio or me.
Please let me know what the current issue is and how it will affect this office.
Plaintiff’s Opposition, R. 40-5, p. 24 of 80.
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4. There is No Allegation that these Individuals Have Knowledge Concerning
Plaintiff’s Claims of Discrimination, Retaliation or Hostile Work Environment.
Because plaintiff has failed to comply with the Rule 56(f) process, it is unclear as to why
plaintiff has requested the new depositions. Because the individual complaints identified by Ms.
Kline involved decisions by Mr. Benedi and Mr. Davis, there is no evidence that the named
individuals were privy to their decision-making process. Except for attempting to estimate the
size of their offices or when they were required to have lunch, if they telework or ever had their
leave audited, there is little or no factual information to be elicited from them. Accordingly, the
Court should not permit plaintiff to side step the requirements of the rules.
CONCLUSION
For the reasons set forth herein, defendant moves for a stay in further discovery
pending the resolution of defendant’s motion to dismiss or for summary judgment.
Respectfully submitted,
/s/
JEFFREY A. TAYLOR , D.C. Bar # 498610
United States Attorney
/s/
RUDOLPH CONTRERAS, D.C. Bar # 434122
Assistant United States Attorney
/s/
CLAIRE WHITAKER, D.C. Bar # 354530
Assistant United States Attorney
United States Attorney’s Office
Civil Division
555 4th Street, N.W., Room E-4204
Washington, D.C. 20530
(202) 514-7137
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
VALERIE KLINE, )
)
Plaintiff, )
) Case Number:
v. ) 1:07-CV-451 (JR)
)
LINDA M. SPRINGER, DIRECTOR )
United States Office of Personnel )
Management, )
)
Defendant. )
____________________________________)
ORDER
Upon consideration of plaintiff’s motion for leave to file a surreply, defendant’s
response thereto, and defendant’s motion to stay discovery, it is this ____ day of _______
ORDERED, that plaintiff’s motion is granted. Leave is granted to file plaintiff’s
surreply and amended opposition to defendant’s statement of material facts not in dispute,
and it is
FURTHER ORDERED, that defendant’s motion to stay discovery pending further
order of this Court is granted.
________________________________________
UNITED STATES DISTRICT COURT
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