The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Presently before the court is defendants' motion to dismiss and, in
the alternative, motion for summary judgment (Dkt. No. 59).*fn1
The court heard this matter on its law and motion calendar on
September 29, 2011. (Minutes, Sept. 29, 2011, Dkt. No. 74.) Assistant
United States Attorney Bobbie J. Montoya appeared on behalf of
defendants. Plaintiff, who is proceeding without counsel and in forma
pauperis, appeared at the hearing and represented himself. The
undersigned has considered the appropriately filed briefs, oral
arguments, and the appropriate portions of the record in this case
and, for the reasons stated below, recommends that defendants' motion
to dismiss and motion for partial summary judgment be granted. The
undersigned ultimately recommends that judgment be entered in
A. Plaintiff's First Amended Complaint
Plaintiff's First Amended Complaint (Dkt. No. 57) is the operative complaint and remains, in certain respects, difficult to decipher. Plaintiff's First Amended Complaint attaches approximately 170 pages of exhibits, and many of these 20 exhibits consist of narrative documents or compilations prepared by plaintiff.
Plaintiff alleges that he is a disabled person of Middle Eastern heritage, who also has a Muslim background. He alleges that he applied with the U.S. Department of State ("State Department" or "Department of State") to become employed as a "Foreign Affairs Officer," and took an examination in connection with that application. (First Am. Compl. at 2.) Plaintiff alleges that he was discriminated against in the application process because of his "ethnic background, religion, national origin, and disability." (Id. at 2.) Briefly stated, plaintiff alleges that he would have scored within the "top three positions" out of all of the applicants who participated in the self-assessment examination process had he been given "disability points" in addition to his score on the self-assessment portion of the examination. (See id. at 2-3.) Plaintiff contends that the State Department's failure to accord his score a "five percent increase" based on his disability, which would purportedly would have made plaintiff eligible for the position he sought, violated the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112; the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution; and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2. (See id. at 3-5.) He also alleges that the failure to provide disability points was "grossly negligent (tort)." (Id. at 4.)
Plaintiff's First Amended Complaint repeatedly intimates that some measure of disability-based discrimination occurred because military veterans were awarded additional points for their service. (See First Am. Compl. at 7.) He alleges that the State Department's preferential award of additional points to veterans was a pretext for discrimination against disabled applicants. (See id. ("In other words hiring 'veterans' is the excuse for the defendants [sic] discrimination.").)
Plaintiff also alleges that the State Department's examination process discriminates on the basis of ethnicity and religious association. (First Am. Compl. at 5-6.) Plaintiff alleges that he was discriminated against "because he was forced to provide his original name on the application" (id. at 6); plaintiff's "original" name is "Rasoul Rahimi."
Finally, plaintiff alleges that the State Department violated his First Amendment rights, 42 U.S.C. § 1985, the ADA, and "Article III" by impeding his rights to discovery of "'workforce diversity' numbers." (See First Am. Compl. at 2, 7-8.) Plaintiff's claim appears to relate both to proceedings before the Equal Employment Opportunity Commission ("EEOC") and this court. (See id. at 2 (alleging that "Defendant took his 1st Amendment rights from his in [sic] course of discovery at EEOC and continued to take away his 1st Amendment rights by blocking his summon to court").)
Plaintiff filed his complaint on November 22, 2010, and defendants subsequently filed a motion to dismiss or for more definite statement (Dkt. Nos. 1, 38).*fn2 On June 20, 2011, the court granted defendants' motions and ordered plaintiff to file a First Amended Complaint. (Order, June 20, 2011, Dkt. No. 55.) Plaintiff filed his First Amended Complaint on July 13, 2011, and defendant filed the pending motion shortly thereafter.
On August 25, 2011, and prior to the time that plaintiff was required to file a written opposition to the pending motion, the undersigned held an already-scheduled status conference in order to discuss the implications of defendants' potentially dispositive motion to dismiss and motion for summary judgment, as well as the requirements placed on plaintiff in responding to the motion.*fn3 (Minutes, Aug. 25, 2010, Dkt. No. 65; Order, Aug. 29, 2011, at 1-2 ("Despite the filing of a potentially dispositive motion by defendants, the undersigned left the status conference on calendar largely for plaintiff's benefit; the undersigned intended to provide plaintiff with guidance regarding the need for plaintiff to follow the court's local rules and the Federal Rules of Civil Procedure in opposing defendants' motion."), Dkt. No. 67.) The undersigned had also intended to address whether plaintiff desired to conduct any discovery in the case prior to resolution of the portion of the motion that sought partial summary judgment. (See id. at 3-4.) However, plaintiff failed to appear at the conference, which was consistent with plaintiff's long history of failing to follow the court's orders and Local Rules, and the Federal Rules of Civil Procedure.*fn4 (See id. at 4-5.) Although the undersigned could have recommended the dismissal of plaintiff's entire case pursuant to Federal Rule of Civil Procedure 41(b), the undersigned declined to do so. And because plaintiff had indicated to defendants' counsel an intention to file hundreds of pages of briefing in multiple parts in response to defendants' motion, the undersigned imposed briefing requirements on plaintiff that, among other things, limited plaintiff to filing a single opposition brief, written in 12-point font, not to exceed 25 pages excluding exhibits.*fn5 (See id. at 2-4.) The court also advised plaintiff that he could file a motion to be permitted to conduct discovery pursuant to Federal Rule of Civil Procedure 56(d). (Id. at 3-4.) Plaintiff filed a motion for reconsideration of the order entered by the undersigned on August 29, 2010 (Dkt. No. 68), which was denied by the district judge assigned to this case (Order, Sept. 8, 2011, Dkt. No. 70).
Plaintiff filed a 25-page opposition brief typed in approximately 10-point font, which did not include an express Rule 56(d) motion for discovery (Dkt. No. 69).*fn6 Plaintiff did not file a statement of disputed facts consistent with Local Rule 260, but attempted to dispute some of defendants' proposed undisputed facts relying on the allegations in, and attachments to, the First Amended Complaint. (See Opp'n at 14-19.) Plaintiff submitted no declarations or evidence in opposition to the motion for partial summary judgment.
On September 26, 2011, and despite the undersigned's clear warning to
plaintiff regarding the filing of only one opposition brief, plaintiff
filed a document entitled "Response to
Summary Judgment," which constituted either plaintiff's second written
opposition to defendants' motions or a sur-reply (Dkt. No. 72).
Consistent with the order entered August 29, 2011, the undersigned
summarily disregarded and declined to consider plaintiff's "Response
to Summary Judgment," which was filed only three days prior to the
hearing. (Order, Sept. 27, 2011, Dkt. No. 73.) And although the
undersigned could have recommended the dismissal of plaintiff's entire
case pursuant to Federal Rule of Civil Procedure 41(b), the
undersigned again declined to make such a recommendation.*fn7
(Id. at 1-2.)
Defendants submitted 16 numbered undisputed facts, which are reprinted below.
Plaintiff does not dispute the facts numbered 1, 2, 9-13, 15, and 16. As to the remaining facts, plaintiff does not actually dispute the fact framed by defendants. Instead, plaintiff offers argument, legal conclusions, speculation, and conjecture that are not responsive to the facts proposed by defendants. (See Pl.'s Opp'n at 14-19.) Defendants' undisputed facts follow:
1. Plaintiff applied with the Department of State for two Foreign Affairs Officer positions, a GS-11 and a GS-12. Declaration of Janice M. Mason (hereinafter "Mason Decl."), filed in conjunction with the instant motion, at ¶ 6.
2. A total of 511 applicants applied for the GS-11 position, and 242 applied for the GS-12 position. Mason Decl. at ¶ 6.
3. Plaintiff scored 87.63 for the GS-11 position, and 93.48 for the GS-12 position. Mason Decl. at ¶ 9.
4. Scores were based on the applicants' answers to self-assessment questions on the application, along with any additional points for veteran's preference eligibility. Mason Decl. at ¶ 5.
5. There were 110 applicants who scored higher than plaintiff for the GS-11 position, and 26 applicants who scored higher for the GS-12 position. Mason Decl. at ¶ 7.
6. Five applicants were listed on the selection certificate for each position and referred to the selecting official for further consideration. Mason Decl. at ¶ 7; see also Mason Decl. Exhibit 3.
7. Plaintiff was not listed on either the GS-11 or GS-12 certificate. Mason Decl. at ¶ 9; see also Mason Decl. Exhibit 3.
8. No applicants were listed on the certificates that received scores lower than plaintiff. Mason Decl. at ¶ 9.
9. Plaintiff was notified by emails on or about May 4, 2009, that he had not been selected for the Foreign Affairs Officer positions. Mason Decl. at ¶ 10; see also Mason Decl. Exhibit 6.
10. On or about May 5, 2009, plaintiff contacted an EEO counselor alleging that his nonselection was ...