Return to Race or proceed to MedlockReplyBrief or Medlock4thCirDec.   


In the
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT


C.A. No. 03-1699

RICKEY MEDLOCK

vs.

DONALD RUMSFELD, SECRETARY OF DEFENSE, NIMA

C.A. No. 03-1699


Appeal from the United States District Court for the District of Maryland
(Honorable Deborah K. Chasanow)


________________________________________________________________


APPELLANT'S BRIEF

________________________________________________________________
         



                                 DAWN V. MARTIN
                                 Law Offices of Dawn V. Martin
                                 1090 Vermont Avenue, Suite 800
                                 Washington, D.C. 20005
                                 (202) 408-7040 telephone
                                 (703) 642-0208 facsimile
                                                 
                                 Attorney for Appellant


TABLE OF CONTENTS

Corporate Disclosure Statement…………………………………………………i

Table of Contents……………………………………………………………….ii

Table of Authorities ……………………………………………………………iii

Jurisdictional Statement…………………………………………………………1

Notice of Appeal………………………………………………………………..2

Statement of the Issues Presented for Review………………..………………...2

Statement of the Case…………………………………………………………...1

Statement of the Facts…………………………………………………………..4

Summary of the Argument……………………………………………………..14

Argument………………………………………………………………………15

Standard of Review……………………………………………………..15

Discussion of the Issues…………………………………………………15

Conclusion……………………………………………………………………..42

Signature of Counsel…………………………………………………………..42

Request for Oral Argument……………………………………………………43

Addendum…………………………………………………………Addendum

Certificate of Compliance…………………………………………Addendum-1

Certificate of Service………………………………………………Addendum-2



TABLE OF AUTHORITIES
CASES
Aiken v. Policy Management Systems Corporation, 13 F.3d 138
(4th Cir. 1993)…………………………………………………….35

Anderson v. Liberty Lobby, Inc. 477 U.S. 242 (1986)…………………..19, 35, 37

Arriola v. National Imagery and Mapping Agency, 01995813
(Dec. 11, 2001)……………………………………………………31

Barnhart v. Mack Trucks, 157 FRD 427 (N.D. Ill.1994), affd
without op 52 F.3d 328 (7th Cir.1995)……………………………37

Batey v. Stone, 24 F.3d 1330 (11th Cir. 1994)……………………………37
Bohac v. West, 85 F.3d 306 (7 Cir. 1996)…………………………………37
Brown v. Brody, 199 F.3d 446 (D.C. Cir. 1999)………………………….31, 34
Bruette v. Inman, 2003 U.S. LEXIS App. 12754 at * 10………………….19, 43
Burns v. Gadson State Community College, 908 F.2d 1512
(11th Cir. 1990)……………………………………………………..35

Caliendo v. Bentsen, 881 F. Supp. 44 (D.D.C. 1995)…………………….34

Castle v. Bentsen, 867 F. Supp. 1 (D.D.C. 1994)…………………………34
Celotex Corp. v. Catrett, 477 U.S. 317 (1986)…………………………….35, 37
Chernova v. Electronic Systems Services, Inc., 247 F. Supp. 2d 720
(D. Md. 2003)……………………………………………………18, 38, 40,                         43, 45, 49, 50, 52, 54

Chalimoniuk v. Interstate Brands Corporation, 172 F. Supp. 2d 1055
(S.D. Ind. 2001)……………………………………………………41

Childers v. Slater, 44 F. Supp. 2d 8 (D.D.C. 1999)……………………….34
Cobb v. Anheuser Busch, Inc., 793 F. Supp. 1457 (E.D. Mo. 1990)……..33
Collier v. Budd Co. 66 F.3d 886 (7th Cir.1995)………………………….. 37
Cones v. Shalala, 199 F.3d 512, 520 (D.C. Cir. 2000)……………………34
Conley v. Gibson, 355 U.S. 41 (1957)…………………………………….47
Courtney v. Biosound, Inc. 42 F.3d 414 (7th Cir.1994)…………………..37
Cowan v. J.C. Penney Co., 790 F.2d 1529 (11th Cir. 1986)……………..42
Dortz v. City of New York, 904 F. Supp. 127 (S.D.N.Y. 1995)…………..31
Drake v. Minnesota Mining & Manuf. Co., 134 F.3d 878
(7th Cir.1998)……………………………………………………….32

Evans v. Technologies Applications and Service Co., 80 F.3d 954
(4th Cir. 1996)………………………………………………………44, 45, 46  

Evans v. United Life and Accident Co., 871 F.2d 466
(4th Cir. 1996)………………………………………………………51

First National Bank of Arizona v. Cities Service Co., 391 U.S. 253
(1968)………………………………………………………………42

Foster v. Swift & Co., 615 F.2d 701 (5th Cir. 1980)………………………38
Garrett v. San Francisco Fire Department, 818 F.2d 1515
(9th Cir. 1987)……………………………………………………….36

Gentner v. Cheyney University of Pennslycannia, 1999 U.S. Dist. LEXIS
(E.D. Pa. 1999).…………………………………………………….33  

Goos v. Nat'l Ass'n of Realtors, 715 F. Supp. 2 (D.D.C. 1989)……………34
Griggs v. Duke Power, 401 U.S. 424 (1971)……………..…………….23, 29, 58  
Harrods Limited v. Sixty Internet Domain Names, 302 F.3d 214
(4th Cir.   2002)………………………………………….………18, 40, 41, 42, 43, 44, 45, 47, 52, 53, 54

Hayden v. First Nat'l Bank, 595 F.2d 994 (5 Cir. 1979)…………………..38
Hopson v. Daimler Chrysler Corp., 306 F.3d 427 (6th Cir. 2002)………..24
Iverson v. Johnson Gas, 172 F.3d 524 (8th Cir. 1999)……………………. 35
James v. Sheahan, 137 F.3d 1003 (7 Cir. 1998)………………………….. 37
Jones v. Western Geophysical Co. 669 F.2d 280 (5th Cir. 1982)…………..38
Kim v. Nash Finch Co., 123 F.3d 1046 (8th Cir. 1997)……………………32  
Kralman v. Illinois Dep't of Veterans' Affairs, 23 F.3d 150
(7th Cir. 1994), reh den., 1994 U.S. App LEXIS 13376,
cert den., 513 U.S. 948……………………………………………..37

Mann v. Princeton Community Hospital Association, Inc;
1992 U.S. App. LEXIS 3432 at 2 (4th Cir. 1992)…………………..34

Martin v. Howard University, 1999 U.S. Dist. LEXIS 19516
(D.D.C. 1999)………………………………………………………33

Mellen v. Bunting, 327 F.3d 355 (4th Cir. 2003)…………………………..19
Nguyen v. CNA Corp, 44 F.3d 234 (4th Cir. 1995)………………………..35
Pacific Insurance Company v. American National Fire Insurance
Company, 148 F.2d 396, 403 (4th Cir. 1998)………………………18

Pallante v. Department of Justice, EEOC Appeal No. 01A04996
(July 6, 2001)…………………………………………………………31

Palmer v. Tracor Inc., 856 F.2d 1131 (8th Cir. 1988)…………………….36
Perdomo v. Browner, 67 F.3d 140 (7th Cir. 1995)………………………..37
Piesco v. New York, Dep't of Personnel, 933 F.2d 1149 (2nd Cir. 1991),
cert den 502 U.S. 921 (1991)………………………………………38

Ramirez v. Oklahoma Dep't of Mental Health, 41 F.3d 584
(10th Cir. 1994)……………………………………………………..33

Randle v. City of Aurora, 69 F.3d 441 (10 Cir. 1995)……………………..37
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000)……... 19, 27
Rosen v. Thornburgh, 928 F.2d 528 (2nd Cir. 1991)………………………..38
Sames v. Gable, 732 F.2d 49 (3d Cir. 1984)………………………………..42

Sarsha v. Sears, Roebuck & Co. 3 F.3d 1035, reh, en banc, den
(7th Cir. 1993) 1993 U.S. App. LEXIS 27267……………………….37

Senner v. Northcentral Tech. College, 113 F.3d 750 (7 Cir. 1997)………...37
Settle v. Baltimore County, 34 F. Supp. 964, 994 (D. Md. 1999)………….33
Singletary v. District of Columbia, 225 F. Supp. 43 (D.D.C. 2000)……….33
Snook v. Trust Co. of Georgia Bank of Savannah, N.A. 859 F.2d 865
11th Cir. 1988)……………………………………………………….35

Sperling v. Hoffman-LaRoche, Inc. 118 F.R.D. 392, 397 (D.NJ. 1988)…….36

Stewart v. Evans, 275 F.3d 1126, 2002 U.S. App. Lexis 418
D.C. Cir. 2002)……………………………………………………….31
Straughn v. Delta Air Lines, Inc., 250 F.3d 23 (1st Cir. 2001)………………37
Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1973)…31
Temkin v. Frederick County Comm'rs, 945 F.2d 716 (4th Cir. 1991)
cert. denied, 502 U.S. 1095, 112 S. Ct. 1172 (1992)………………….35

Thomas v. Washington County School Board, 915 F.2d 922
(4th Cir. 1990).……………………………………………………17, 29, 30  

Thompson Everett, Inc. v. National Cable Advert, L.P. 57 F.3d 1317
(4th Cir. 1995).…………………………………………………….19

Thornbrough v. Columbus & G. R. Co., 760 F.2d 633 (5th Cir. 1985)…..38
Wards Cove v. Atonio, 490 U.S. 642 (1989)…………………………….23, 29, 58
Washington v. Jenny Craig Weight Loss Ctr., 3 F. Supp. 2d 941
(N.D. Ill. 1998)…………………………………………………………….32
Webb v. Garelick Mfg. Co., 94 F.3d 484 (8 Cir. 1996)…………………….37
Weiters v. Roper Hospital, 58 Fed. Appx. 40, 44, 2003 U.S. App.  
LEXIS 3620 at *9 (4th Cir. 2003)……………………………………42

Wohl v. Spectrum Mfg., 94 F.3d 353 (7 Cir.1996), reh, en banc, den
1996 U.S. App. LEXIS 30599……………………………………….37


STATUTES
Title VII of the Civil Rights Act of 1964,
42 U.S.C. 2000(e) et seq. ………………………………………...3, 4, 17,
29, 31, 32, 38, 40, 43, 45, 54

The Rehabilitation Act of 1973, as amended by the Americans
with Disabilities Act, 42 U.S.C. Section 12111, et. seq…………3, 4, 6

28 U.S.C. § 1291……………………………………………………….2

FEDERAL RULES
Fed. R. App. Proc., Rule 4(a)…………………………………………..3
Fed. R. Civ. P. 6……………………………………………………..2
Fed. R. Civ. P. 56(f)…………………………………………………5, 17, 18
Fed. R. Civ. P. 59(e)…………………………………………………2, 18
Fed. R. Civ. P. 60(b)…………………………………………………2, 50, 51
LEGAL COMMENTATARIES
Lex K. Larson, Employment Discrimination § 34.04,
at 34-57 to 34-62 (2d ed.1995)………………………………32

10B Charles A. Wright, Arthur R. Miller, & Mary Kay Kane,
Federal Practice & Procedure § 2740 (3d ed. 1998)………..42

Edward Brunet, The Timing of Summary Judgment,
198 F.R.D. 679 (2001)……………………………………….41

John F. Lapham, Note, Summary Judgment Before the
Completion of Discovery: A Proposed Revision of
Federal Rule of Civil Procedure 56(f),
24 U. Mich. J.L. Ref. 253 (1990)…………………………….42





STATEMENT OF ISSUES PRESENTED FOR REVIEW

Appellant Ricky Medlock appeals both the District Court’s December 31, 2002 and April 4, 2003 Memorandum
Opinions/Orders and asks the Appellate Court to reverse its grant of summary judgment to Donald Rumsfeld,
as the Secretary of Defense, responsible for the actions of the National Image Mapping Agency (NIMA),
hereinafter, “the Agency,” so that his case may be heard by a jury, on the merits.
Issues to be Raised on Appeal
A.        Whether the trial court erred, as a matter of law, by granting the Agency’s Motion for Summary Judgment,
accepting as fact, assertions made in affidavits by NIMA officials, without the benefit of depositions, cross-
examination, document production, or any other form of discovery, and depriving Medlock of any opportunity to
obtain the evidence needed to carry his burden of proof of discrimination.  
B.        Whether the trial court erred, as a matter of fact, by determining that the facts are not in dispute,
accepting assertions made in affidavits by Agency officials, without the benefit of depositions, cross-
examination, document production, or any other form of discovery, where Medlock vehemently disputes the
factual allegations asserted by the Agency and has been deprived of any opportunity to obtain the evidence
needed to carry his burden of proof of discrimination.  
C.        Whether the trial court erred, as a matter of law, by failing to consider Medlock’s claims of disparate
impact of the WORKFORCE 21 promotion system, on African-American employees, now abandoned by the
Agency due to its adverse impact on African-American employees.
D.        Whether the trial court erred, as a matter of law, by failing to consider Medlock’s claims of disparate
impact of the nepotism practiced by White supervisors, on African-American employees, in the application and
selection process under the WORKFORCE 21 promotion system.
E.        Whether the trial court erred, as a matter of law, and/or, by abusing its discretion, when it held that
Medlock failed to meet the substantive requirements set forth in Fed. R. Civ. Proc. 56(f), requiring that the non-
moving party notify the court of the need for discovery .  
F.        Whether the trial court erred, as a matter of law, and/or, by abusing its discretion, when it denied
Medlock’s Motion for Reconsideration of the Court’s December 31, 2002 Order, which included an affidavit that
conforms to the letter, as well as the spirit of Rule 56(f), and asked the District Court to reconsider its decision,
in the interests of justice, pursuant to Rules 59(e) and 60(b)(1), and/or (6) of the Federal Rules of Civil
Procedure.
G.        Whether the trial court erred, as a matter of law, in granting the Agency summary judgment on Medlock’s
retaliation claim, holding that a reduction in a performance evaluation does not constitute and adverse action
within the context of Title VII retaliation claim.  
STATUTES AND REGULATIONS

Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000(e) et seq.  

The Rehabilitation Act of 1973, as amended by the Americans with Disabilities Act, 42 U.S.C. Section 12111,
et. seq.

 JURISDICTIONAL STATEMENT
This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1291 and Fed. R. App. Proc., Rule 4(a).  The
District Court had subject matter jurisdiction of this matter pursuant to Title VII of the Civil Rights Act of 1964, 29
U.S.C. 2000(e) et seq.
NOTICE OF APPEAL

Appellant filed his Notice of Appeal on May 30, 2003.  (JA 4) The parties participated in mediation.  Mediation
failed.  





 STATEMENT OF THE CASE
I.        Procedural History, Course of Proceedings, and Disposition Below

A.        Complaint

The docket of the District Court is included in the Joint Appendix.  (JA 1-3).  On April 2, 2002, Appellant Rickey
Medlock filed a Complaint (JA 5-74) in the Circuit Court for the District of Maryland, against the Agency,
pursuant to Title VII of the Civil Rights Act of 1964 and the Rehabilitation Act of 1973, as amended by the
Americans with Disabilities Act of 1991, alleging employment discrimination on the basis of race, sex,
disability and retaliation.   
B.        Motion to Dismiss/Summary Judgment

In lieu of filing an Answer to the Complaint, on July 1, 2002, the Agency filed a Motion to Dismiss, or in the
Alternative, for Summary Judgment (JA 115-341); consequently, discovery was immediately put “on hold” and
no discovery ever took place.  Medlock filed an Opposition on On August 1, 2002.  (JA 342-391).  The Agency
filed a Reply on August 27, 2002 (JA 392-418)
C.        Orders of the District Court
1.        December 31, 2002 Order
On December 31, 2002, this Court denied the Agency’s Motion to Dismiss, upholding the sufficiency of the
Complaint (JA 86-91); however, in the same Order, the Court granted the Agency’s Motion for Summary
Judgment. (JA 75, 94-99, 102)  Because the Court granted the Agency’s motion for summary judgment, no
discovery has ever been conducted in this case.  The Agency never even answered the Complaint.  There are
no Answers to Interrogatories, depositions, document production, or any other discovery responses in the
record.   
2.        April 4, 2003 Order
On January 15, 2003, Medlock filed a Motion for Reconsideration of the Court’s December 31, 2002 Order.   (JA
419-448)  Medlock included in the Motion for Reconsideration, a Rule 56(f) affidavit from his counsel, to comply
with the letter, as well as the spirit of Rule 56(f). (JA 441-445)  The Agency filed an Opposition on January 31,
2003 (JA 449-461).  Medlock filed a Reply on February 12, 2003.  (JA 462-471)  In its Memorandum Opinion of
April 4, 2003, the District Court, via Judge Deborah K. Chasanow, refused to reconsider, and thus, reaffirmed,
her Order of December 31, 2002.  On December 31, 2002, Judge Chasanow refused to consider the Rule 56
(f) affidavit supplied, stating that it was “clearly overdue.”   (JA 109, fn. 2)    
There has never been a hearing, oral argument, status conference or any other court appearance or even a
telephone conference with the Court in this case.   
STATEMENT OF FACTS

Appellant Rickey Medlock is an African-American male with a disability, chronic pain facial disorder.  (JA 5,
366)  Medlock has a college degree, with a B.S. in Sociology and sixteen years of administrative experience.  
(JA 8, 366) Six of those years included military managerial administrative experience, including both national
and international operations.  (JA 8, 33-34, 366)  Plaintiff began with NIMA as a GS-6 security guard, on
January 23, 1997. (JA 7-8, 33-34, 366)   
Due to severe chronic pain in his face, Medlock must regularly take pain medication and additional medication
for resulting depression, and requires minor scheduling accommodations when the pain is particularly
egregious. (JA 9, 366-367) The NIMA guard force could not accommodate Medlock.  (JA 9, 366-367) Since
Medlock needs to take pain medication on a regular basis, he could no longer legally qualify to carry a
weapon.  (JA 9, 366)  Furthermore, the guard force employees rigid scheduling, since posts must be covered
at all times.  (JA 9, 366-367)  
Due to his disability, Medlock became unable to perform his duties as a security guard.  (JA 9, 366-367)  
Pursuant to the Rehabilitation Act of 1973, as amended by the Americans with Disabilities Act, as a
reasonable accommodation of his disability, Medlock was transferred to another position within the Agency for
which he qualified, in Human Resources as a Management and Program Assistant.  (JA 9)  
The Vacancy Announcement for the Human Resources career intern position, accepted by Medlock, posted on
March 29, 1999 (closing April 9, 1999), was written as a “GS” “career ladder” position (JA 12, 14, 344, 367-368,
375-377), as opposed to the newly “phased in” WORKFORCE 21 position (JA 14, 379-383).  When Medlock
accepted the Human Resource career intern position, offered to him on October 14, 1999, to commence on
October 25, 1999 (JA 14, 345-346), Agency documentation indicated that he was accepting a position in which
he could be non-competitively promoted, a career ladder employee.  (JA 12, 14, 344, 367-368, 375-377).  His
salary of approximately $24,000 was comparable to his GS-6 salary.  (JA 14, 367).  Medlock accepted the offer
based on the express representation in the job announcement that he would be mentored, trained and given
opportunities for promotion, based on his work performance, skills and abilities (JA 14, 367-368, 377).  
When Medlock applied for the position of Human Resources Career Intern, the Vacancy Announcement #
993019 indicated that the “Series/Grade” of the position was GS-0201-05/10, ranging from $22,208 to
$48,173.  (JA 14, 367-368, 376)  Under “Major Duties,” the announcement read:
These human resource professionals will rotate through entry level and developmental level assignments
under the Directorate for Corporate Affairs Intern Program. …  

Under “Other Information,” the vacancy announcement read:

The Career Intern Program is a two –year developmental program, that includes on-the-job training, formal
classroom training, and rotational assignments to other functional areas in the Directorate for Corporate
Affairs.”

Positions may be filled at varying salaries.  Appointments and advancement opportunities will be based on the
candidate’s experience, education and demonstrated abilities and skills.

Vacancy Announcement # 993019 did not indicate that the position and/or promotions from this position were
subject to WORKFORCE 21.  (JA 14, 367-368, 375)  The description of the promotion procedure in the March
29, 1999 Vacancy Announcement for the position of Human Resources Career Intern, # 993019 was
consistent with a career ladder position.  (JA 14, 367-368, 375-377)  
Medlock received performance pay, a monetary award, for his work performance, based on his performance
evaluation of September, 1999 (JA 8, 37-47, 368).  Medlock received a Special Act Award, an additional
monetary award, in July of 2000.  (JA 8, 368)  Medlock has received high praise as an outstanding employee
who goes the extra mile.” (JA 8, 37-61, 368).
At the time of the offer, Medlock had an offer as a career ladder GS-5/8 Personnel Assistant for the Washington
Headquarters Services, the Human Resources Office for the Pentagon, within the Department of Defense.   
(JA 368)  Medlock turned down the position at the Department of Defense because he was led to believe, by
the Vacancy Announcement and conversations with Agency personnel, that the promotion potential of the
Human Resources Career Internship was to become a Personnel Management Specialist, at a GS-12 level.  
(JA 368)  Medlock had already witnessed other people move up from those positions in Human Resources
from career interns to GS-12 Personnel Management Specialists (JA 368).  Indeed, the other two Human
Resources interns were career ladder employees. (JA 328-331)  
On September 14, 2000, Medlock was rejected for a promotion, for which he was highly qualified. (JA 8, 37-47,
368) Medlock’s supervisor, Bobby Webster, a White male, rated Medlock’s performance lower than every other
candidate except one.  (JA 11-12, 63, 369)  Medlock was told by his supervisors that he was rejected for the
position because: 1) under WORKFORCE 21, he was not entitled to a career ladder, non-competitive
promotion; and 2) he was not as qualified for a promotion as were the four persons promoted.  (JA 11, 369)  
Four candidates were promoted, from a pool of twenty applicants.  (JA 369)  All selectees were White females.  
(JA 7-8, 369)  The selection rate for White females applicants was 80%; the selection rate for African-American
applicants was 0%, although 50% of the applicants were African-American.  (JA 7-8, 369)  The selection rate
for males was 0%; Medlock was the only male candidate.  (JA 7-8, 369)  Human Resources support
personnel were predominantly female.  (JA 7-8, 369)  
The only African-American male in Human Resources, except Medlock was Dominyck Parker, an
Administrative Officer overseeing Human Resources.  (JA 8, 369)  Medlock worked under the supervision of
Mr. Parker from October 1998 through September 1999. (JA 8, 369)  Mr. Parker rated Medlock with 460 points
out of a possible 500, which in excellent performance and is only exceeded only by “superior” performance,
ranging from a score of 475-500, a rating rarely awarded. (JA 8, 37-47, 369)  
The hierarchy of the NIMA Human Resources Department is that African-American females have traditionally
been concentrated at lower to mid-level positions, White females are dispersed throughout the Department
and are readily promoted, and White males clustered at the highest management levels, moving “up or out”
quickly, if in Human Resources at all.  (JA 10-11, 369-370)  Other than Medlock, there were no African-
American males that carried the title of a Human Resources employee, out of more than one hundred such
employees.  (JA 10-11, 369-370)  
Of the four White female selected for promotions, two had disabilities; however, they were disabilities that
were not readily apparent, while Medlock’s disability, chronic facial pain disorder, is visibly apparent and
sometimes affects his speech.  (JA 9, 370)  
Medlock scored the lowest rating of all twenty candidates partially because his supervisor, Bobby Webster,
rated him only 1.5, on a scale of 3.0 – the lowest of all other candidates except one.  (JA 11-12, 63, 369)  In
addition, Webster was one of the nine panel members that ranked the candidates for promotion overall;
consequently, the adverse effect of the discriminatory animus harbored by Webster was compounded by his
opportunity to under-rate Medlock qualifications overall, in addition to under-rating his work performance.  (JA
9, 11-12, 347-348, 370)  The discrepancies between the ratings of the panel members, as well as the
discrepancies between Medlock’s excellent performance evaluation and his low performance rating when
considered for promotion, demonstrates that the promotion process was arbitrary, capricious and particularly
subject to abuse for discriminatory purposes.  (JA 11-12, 63, 370-371, 347-348, 369)  
Medlock could have been promoted, as a career ladder employee, without having to compete for a limited
number of “pay band” promotions.  (JA 12-13, 370)  Defendant claims that since Medlock was transferred into
the Human Resources Personnel Management Intern occupational series 301 on December 5, 1999, he was
not a career ladder employee.  (JA 12-13, 367-368, 370, 375-377)  On October 1, 1998, Defendant Agency
began to implement WORKFORCE 21.  (JA 12, 370)  Under WORKFORCE 21, employees had to compete for
a limited number of promotions in a particular “pay band,” irrespective of occupation or job title.  Employees
already on career ladders were “grand-fathered” and continued to receive promotion considerations under the  
career ladder promotion process, which allowed them to be assessed for promotions based on their own
performance, up to the grade level permitted by their job classifications.  (JA 12, 370)  
Defendant has attempted to justify the denial of Medlock’s promotion by stating that Medlock received the
lowest score of all twenty candidates for the promotion; however, Defendant cannot hide behind a “number” or
“score” that is based on subjective criteria.  (JA 11-12, 63, 347-348, 352-353, 369-371)  The overall numbers
ascribed to Medlock by the nine panel members were: 4, 6, 7, 8, 8, 9, 10, 11 and 12, respectively, out of a
possible score of 20.  (JA 7-8, 63, 352-353)  Similarly, there were candidates whose scores ranged from 5 to
13.  (JA 7-8, 63, 352-353)  With scores ranging from 4 to 12, there was no uniform application of objective
criteria.  (JA 7-8, 352-353)  
The Chair of the hiring panel for the promotions was Judy Schiebel, a White female from St. Louis.  (JA 12, 370-
371)  All of the selectees were also White females from St. Louis.  (JA 12, 348, 370-371)  Upon information
and belief, Schiebel identifies and socializes with the four White female selectees and their selection
constitutes nepotism.  (JA 12, 348, 370-371)  Upon information and belief, Schiebel assisted her friends and
associates from St. Louis, who were disproportionately (100%) White and female, in the application process,
advising them of how to prepare their applications for promotions.  (JA 12, 348, 370-371)       
Defendant has argued that Patricia Briggs, a White female, was similarly situated to Medlock and was also not
promoted or eligible for promotion under a career ladder system; however, Ms. Briggs is not an appropriate
comparator.  (JA 14-15, 348-349, 371)  Ms. Briggs did not compete for the internship.  (JA 14-15, 348-349,
371)  She was placed in career intern position (designated GS-7), due to a reduction in force (RIF) in her
former department.  (JA 14-15, 348-349, 371)  Ms. Briggs was permitted to retain her former grade level of GS-
11, for a period of two years (JA 14-15, 348-349, 371); consequently, Ms. Briggs did not need, and would not
have accepted the “pay band II” position, since it would not have constituted a promotion for her, but would
actually have been a demotion in terms of grade and salary.  (JA 14-15, 348-349, 371)  Ms. Briggs had
expressed her desire to leave Human Resources.  (JA 14-15, 348-349, 371)  Ms. Briggs is the only candidate
for a promotion who received a lower performance rating for promotion purposes than did Medlock.  (JA 14-15,
348-349, 371)  This performance should not be compared to that of an employee who put forth his best effort,
wanted to remain in HR, and received monetary awards for excellent work performance.   (JA 14-15, 348-349,
371)    
Despite the Agency’s claim that only persons who were “grand-fathered” into career ladder status were
exempt from WORKFORCE 21, exceptions were made for employees from various Offices and Departments
within the Agency. (JA 13, 349, 371)  On February 7, 2001, NIMA Director, Lt. General James R. Clapper, Jr., in
a television appearance, spoke of the arbitrariness of the pay band system, as applied at that time.  (JA 13, 65-
70, 349-350, 372)  General Clapper set out specific recommendations for change and accountability, which he
has been implementing since that date.  (JA 13, 65-70, 349-350, 372)  
On November of 2001, in “The Edge,” NIMA’s monthly internal newsletter, General Clapper again addressed
problems with WORKFORCE 21 and the pay band system (JA 65-70) General Clapper specifically stated that:
blacks are clearly the most disadvantaged (in terms of promotions, rotational assignments and percentages
of SESes, for example) of any grouping in NIMA…

General Clapper said that he would make it a “priority” to acknowledge the “issues arising from race, gender,
ethnic background, etc.”  (JA 65-70)  The term “WORKFORCE 21” is no longer used at NIMA.  (JA 13, 350, 372-
373)  The “pay band” promotion system has been completely revamped.  (JA 372-373)  The other two Human
Resource management interns, other than Medlock, both female (one White and one African-American) were
deemed career ladder employees.  (JA 13-14, 350, 372)  Their date of hire was February 1, 1998, eight
months prior to the implementation of WORKFORCE 21.  (JA 13-14, 350, 372)  
WORKFORCE 21 was abandoned by the Agency in late 2001/early 2002.  NIMA’s own Affirmative Employment
Program for Minorities and Women, Annual Accomplishments Report for Fiscal Year 2001, page 6-7,
specifically reported the results of its own study of the adverse impact of WORKFORCE 21 on African American
employees.  The Report concluded that the promotion process utilized under WORKFORCE 21 had an
adverse impact on African-Americans (JA 13, 350, 372-373, 387-391) The Agency specifically recommended
that the WORKFORCE 21 process be changed to include: “Established Improvement Process teams,
Established Standardized Promotion Methodology, Revised Supervisory Input Form and Instituted mandatory
training for all promotion panel members.”  (Id.)
After Medlock filed his internal September 2000 discrimination claim, his performance evaluation dropped
from 460, out of 500, which is in the range identified as “excellent,” to 280, in the range for a mere “successful”
rating.  (JA 16-17, 350, 362-363)  Medlock’s performance evaluation was reduced dramatically, in 2001, to 280
– an overall rating of “successful” (range of 276 through 375).  This rating was only five points above
“marginal” (200-275).  (JA 16-17, 350, 362-363)  If Medlock had scored five points less, he would have been
placed on a “PIP,” Performance Improvement Plan, and been in danger of dismissal.   (JA 16-17, 350, 362-
363)  
Medlock is currently an “Administrative Assistant IV” with a private contractor, Chugach Administrative Services,
Incorporated, contracting with NIMA to provide services for the Office of Information Services.   (JA 373)  
Medlock was employed directly by Defendant NIMA (“the Agency”) from January 23, 1997 to March 10, 2001.  
(JA 373)            
SUMMARY OF ARGUMENT

The trial judge erred by granting summary judgment to the Agency.  Defendant’s Motion for Summary
Judgment was not yet ripe for a decision a the time of the Court’s December 31, 2002 Order.  Absolutely no
discovery has ever taken place in this case.  Summary judgment is inappropriate when the non-movant has
not yet had an opportunity to conduct discovery necessary to respond to the motion for summary judgment.   
Medlock alleged discrimination in the promotion decision, both on theories of disparate treatment and
disparate impact.  The disparate treatment argument was based on the subjective decision of a panel, which
included his then supervisor, Bobby Webster, a White male.   Medlock alleged disparate treatment in the
promotion decision, based on race, sex, disability and retaliation, largely due to the participation and influence
of Webster.  Medlock also alleged disparate treatment by Judy Schiebel, the Chair of the promotion panel, a
White female, who favored other White females, in violation of Title VII.  
Medlock also claimed disparate impact discrimination in three respects: 1) the competitive promotion system
of WORKFORCE 21 had a disparate impact on African-Americans, as the Agency’s own studies concluded
before it was abolished; 2) Schiebel practiced nepotism, favoring promotion candidates from her own staff in
St. Louis, which consisted entirely of the four White females promoted by the panel; and 3) nepotism was
practiced in the administration of WORKFORCE 21 competitive promotion system, with White supervisors
helping White applicants through the process.  
Nepotism, although not a violation of Title VII per se, has been held to violate Title VII when its practice has a
disparate impact on the basis of race, in violation of Title VII. Thomas v. Washington County School Board, 915
F2d 922, 924 (4th Cir. 1990).   
Medlock met the substantive requirements set forth in Fed. R. Civ. Proc. 56(f), though not in the specific form,
affidavit, noted in Rule 56(f) in his Opposition to Defendant’s Motion for Summary Judgment.  The Fourth
Circuit has held that where plaintiff’s counsel set forth, in an Opposition to Defendant’s Motion for Summary
Judgment, the need for additional discovery, the substantive requirement of a Rule 56(f) affidavit was met.  
The trial judge erred, as a matter of law, and/or abused her discretion, by failing to reconsider her December
31, 2002 Memorandum Opinion.  A motion to amend judgment, pursuant to Rule 59(e) is appropriate to
“correct a clear error of law or prevent manifest injustice.” Pacific Insurance Company v. American National Fire
Insurance Company, 148 F.2d 396, 403 (4th Cir. 1998).  
The Fourth Circuit, as well as other circuits and authoritative legal commentators, have specifically held that it
is reversible error to strictly adhere to the affidavit requirement of Rule 56(f) where the party has, in its
opposition to Defendant’s motion for summary judgment, put the Court on notice of the need for discovery and
explained specifically how the party is prejudiced without that discovery.  Harrods Limited v. Sixty Internet
Domain Names, 302 F.3d 214, 244-245 and fn. 18 (4th Cir. 2002); Chernova v. Electronic Systems Services,
Inc., 247 F. Supp. 2d 720, 722-723 (D. Md. 2003).
Finally, even if Medlock’s Opposition did not meet the technical procedural requirements of Rule 56(f) because
counsel did not submit a Rule 56(f) affidavit, re-stating the arguments already included in the Opposition,
Medlock’s Motion for Reconsideration, did include an affidavit conforming to the letter of Rule 56(f).  The trial
judge abused her discretion, refused to correct clear errors of fact and law, and acted against the interests of
justice, in refusing to consider the court’s December 31, 2003 Order.
ARGUMENT
I.        STANDARD OF REVIEW FOR SUMMARY JUDGMENT
An award of summary judgment is reviewed de novo.  Bruette v. Inman, 2003 U.S. LEXIS App. 12754 at * 10;
Mellen v. Bunting, 327 F.3d 355, 363 (4th Cir. 2003).
Pursuant to Rule 56(c), a party is only entitled to Summary Judgment where “the evidence in the record shows
that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter
of law.”  Rule 56(c) requires that, for purposes of summary judgment, “the evidence of the non-movant is to be
believed and all justifiable inferences drawn in his favor,” citing Thompson Everett, Inc. v. National Cable
Advert, L.P. 57 F3d 1317, 1323 (4th Cir. 1995).  Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 255 (1986).  
Summary Judgment should only be granted where “no reasonable juror” or “rational fact finder” could find in
favor of the non-moving party.  Reeves v. Sanderson Plumbing Products, Inc. 530 U.S. 133, 148 (2000).   



II.        THE TRIAL COURT ERRED, AS A MATTER OF FACT, BY MAKING FACTUAL DETERMINATIONS
RESERVED FOR A JURY, AGAINST THE WEIGHT OF THE EVIDENCE ACTUALLY PRODUCED, AND IN THE
ABSENCE OF DISCOVERY

At no point in this litigation has the Agency filed a Statement of Material Undisputed Material Facts.  Medlock
did file a Statement of Undisputed Material Facts with his Opposition to Defendant’s Motion for Summary
Judgment.  The Agency never filed a Statement of Disputed Material Facts in response.  
The trial judge apparently ignored Medlock’s  Statement of Material Undisputed Material Facts and developed
her own set of facts, relying on the Agency’s arguments.  The trial judge then determined that the Agency’s
assertions should be considered undisputed facts, ignoring the evidence disputing those claims that Medlock
had already provided, and refusing to allow Medlock discovery to obtain additional evidence necessary to carry
his burden or proving his allegations.
Instead of allowing this case to proceed, to afford Medlock his right to discovery, the trial judge accepted the
“boiler plate” motion for summary judgment assertion of the Agency, made on page 4 of it Opposition to
Plaintiff’s Motion for Reconsideration, that “…  it was clear from the materials accompanying the briefs of both
parties that no genuine dispute as to a material aspect of any of Plaintiff’s claims…”  (JA 452); yet, this claim is
absolutely false.  Many of the material facts are vehemently disputed and the Agency’s “boiler plate” summary
judgment language does not apply to this case.  A few of the material disputed facts are discussed below, and
are discussed in more detail, with respect to the discovery needed to determine these facts, under Section VI
of this Brief.  
A.        The Parties Dispute whether Medlock was a Career Ladder Employee

Medlock alleged that he should have been promoted, irrespective of the competitive promotion process under
WORKFORCE 21, since his position was a career ladder position.  (JA 12-13, 359-360)  Medlock submitted,
with his Opposition to Defendant’s Motion for Summary Judgment, a Statement of Undisputed Material Facts.  
(JA 366-373)  Medlock included, as exhibits, vacancy announcements to demonstrate that his position was
advertised as “career ladder” rather than subject to WORKFORCE 21, so that he should not have been
required to compete for a promotion.  (JA 359-360, 375-383)  The Agency claims that Medlock’s position was
not a career ladder position.  (JA 122-123)  Obviously, then, whether Medlock’s position was career ladder or
subject to WORKFORCE 21 is a disputed fact.  
B.        The Parties Dispute Whether the WORKFORCE 21 was Uniformly Applied to Persons Other than
Medlock

The trial judge stated that Medlock “failed to provide any evidence to substantiate this allegation,” i.e. that there
were no exceptions to the WORKFORCE 21, competitive promotion system, except those “grandfathered” into
the career ladder system. (JA 96-97).  Medlock alleged that, upon information and belief, 32 persons were
promoted as career ladder employees after the implementation of WORKFORCE 21.  (JA 360, Opposition; see
also Complaint, JA 13.)  As he informed the trial court, discovery was needed to obtain documents solely in the
possession of the Agency, to confirm this belief.    
The trial court erroneously adopted, at face value, the agency’s assertion that no exceptions were made, while
ignoring the list of “exceptions” submitted by Medlock.  Medlock is entitled to an Answer to his Complaint,
Answers to Interrogatories, Document production and Requests for admissions addressing this issue.  He is
also entitled to depose the Agency’s witnesses on this issue.  In any case, the question of whether
WORKFORCE 21 was uniformly applied is a disputed fact.
C.        The Parties Appear to Dispute Whether WORKFORCE 21 was Discriminatory and/or Justified by
Business Necessity; if there is no Dispute, Medlock, not the Agency, is Entitled to Summary Judgment

Medlock submitted to the court the Agency’s own public statements that WORKFORCE 21 had a discriminatory
impact on African-Americans, and that there was no business justification for using the competitive
WORKFORCE 21 promotion system (JA 13, 65-70, 350, 372-373, 387-391), as required to justify the use of a
facially objective promotion system that has a discriminatory impact, pursuant to Wards Cove v. Atonio, 490 U.
S. 642 (1989); Griggs v. Duke Power, 401 U.S. 424 (1971).  Medlock also alleged that this disparate impact
was one of the reasons that WORKFORCE 21 was eventually abandoned.  (JA 13, 65-70, 350, 372-373, 387-
391)  If these facts are undisputed, Medlock, not the Agency, is entitled to summary judgment on his disparate
impact claim, at least on the issue of liability, regarding his non-promotion under WORKFORCE 21.  The only
remaining issue should be determining the appropriate remedy for Medlock by examining whether he would
have been promoted absent the discriminatory promotion system.
D.        The Parties Dispute whether the Decision-Makers in the Promotion Process Intentionally Discriminated
against Medlock and/or in Favor of White Female Applicants without Visible Disabilities

The trial judge accepted Defendant’s conclusory assertion that Plaintiff was not the “most qualified applicant
for the position,”  claiming that Plaintiff lacked the “breadth of assignments and experience” for the promotion.  
(JA 98).  Where the employer’s stated legitimate, non-discriminatory reason is vague, and failed to specify the
manner in which the White females were better qualified, they should be subject to particular scrutiny,
particularly when coupled with other factors, such as a statistical showing that a protected group is
underrepresented in the job category.  Hopson v. Daimler Chrysler Corp., 306 F.3d 427 (6th Cir. 2002).  
The statistics presented in the case at bar demonstrate a conspicuous absence of African-American males in
Human Resources and a promotion selection rate of 80% for White female applicants, 0 % for African
American applicants, and 0 % for male applicants, resulting in 100 % of the four selectees for promotions
being White females.  (JA 7-8, 369)  These statistics are admissible as evidence that the Agency had a pattern
or practice of discriminating against African-American males in Human Resources, as Medlock alleges.  
These statistics present enough of an inference of discrimination to preclude summary judgment.  Id.
Medlock submitted evidence that demonstrates that the selection panel used criteria that was subjective, as
demonstrated by the vast range of numbers assigned to each candidate by the various panel members.  
Medlock attached the “scores” of the decision-makers, demonstrating such a large range in numbers that the
system could not have been “objective,” but was completely arbitrary and allowed for discriminatory prejudices
to control the promotion decision.  (JA 348, 352-353).  This was true not only for Medlock,  but for other
candidates as well.  
The Agency cannot veil subjective decisions in the cloak of a purportedly objective “number” evaluation, when,
indeed, that number only represents the panel members’ subjective evaluation of the applicant.  (JA 347, 356)  
This “numbering system” is no more objective than asking a group of people to characterize their personal
taste with respect to chocolate cake on a scale of one to ten.  These numbers alone demonstrate that the
evaluations of the promotion candidates were not based on any objective criteria and may well have been
based on impermissible, discriminatory motives, particularly since all four selectees were White females.  
This evidence indicates that the Agency’s stated reasons for Medlock’s non-promotion, e.g., that he did not
have the appropriate experience and performance for the promotion, are pre-textual.  (JA 348, 352-353)  
Medlock alleged that his education surpasses that of some of the selectees.  (JA 352)  Medlock received a
Special Act Award, an additional monetary award, in July of 2000.  (JA 8, 37-47, 345-346, 368)  Medlock has
received high praise as an outstanding employee who goes the extra mile,” implying superior performance to
some of the other candidates.   (JA 8, 37-61, 345-346, 368)  The letters give details regarding his specific work
experience.  (JA 47-67)  Medlock received performance pay, or a monetary award, for his work performance,
based on his performance evaluation of September, 1999 (JA 8, 37-47, 345-346, 368).  
Medlock is entitled to confront the decision-makers with this and other evidence, through cross-examination, to
demonstrate that these purported “legitimate, non-discriminatory reasons” are pre-textual.  This is particularly
true where, as here, the stated “legitimate, non-discriminatory reasons” are general, conclusory and
subjective.  In addition, as Medlock argued in his Opposition, Motion for Reconsideration and Reply, he needs
more specific information about the selectees, such as their personnel files, in order to complete the
comparisons and to demonstrate pre-text, which can only be obtained through discovery, including document
requests, interrogatories and depositions.   
There is evidence of Webster’s disparate treatment of Medlock as his supervisor.  Webster ignored the praise
the Medlock received from other Human Resources employees, including his previous supervisor.  (JA 11,
362-363, 347, 370) Webster downgraded Medlock performance evaluation as “excellent” to “satisfactory.”  (JA
12, 362-363, 373)  Medlock challenged his performance evaluation, alleging discrimination on the basis of
race, sex and disability.  (JA 12, 362-363, 373)  Since Webster was on the promotion panel, he had yet another
opportunity to further discriminate against Medlock on the basis of race, sex and disability.  (JA 9, 11-12, 347-
348, 370)
Medlock has alleged that Webster was motivated by race, sex and disability discrimination when he ranked
Medlock second to last of all for the candidates for promotion, and that Webster’s assessment of Medlock
influenced other members of the promotion Committee to rank him low as compared to other candidates.  (JA
11, 370)  If this alleged fact is undisputed, Medlock should be granted summary judgment, not the Agency.  
As explained in Plaintiff’s Opposition to Defendant’s motion for Summary Judgment and Plaintiff’s Motion for
Reconsideration (JA 422-426), with nearly a page of case citations supporting this point, it is necessary to
depose Webster, and to allow a jury to assess his demeanor at trial, with respect to this low rating and his
conversations with other decision-makers regarding Medlock
In Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000), the Supreme Court held that “a plaintiff’
s prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false,
may permit the trier of fact to conclude that the employer unlawfully discriminated.”  Id. at 148.  “It is
permissible to infer the ultimate fact of discrimination from the falsity of the employer’s explanation.”  Id. at
147.  If Medlock can demonstrate that the Agency’s stated reason for his non-promotion is false, a jury could
reasonably  conclude that the real motive was impermissible discrimination.
If the facts are undisputed, Medlock, not the Agency, is entitled to summary judgment.           
III.        THE TRIAL COURT ERRED, AS A MATTER OF LAW, BY FAILING TO ADDRESS MEDLOCK’S CLAIMS
OF DISPARATE IMPACT

Medlock claimed disparate impact discrimination in three respects: 1) the competitive promotion system of
WORKFORCE 21 had a disparate impact on African-Americans, as the Agency’s own studies concluded
before it was abolished (JA 13, 349-350, 354); 2) Judy Schiebel, the Chair of the promotion panel, practiced
nepotism, favoring promotion candidates from her own staff in St. Louis, which consisted entirely of the four
White females promoted by the panel (JA 12, 354-355); and 3) nepotism in the administration of
WORKFORCE 21 competitive promotion system resulted in White supervisors helping their friends, who were
disproportionately White, through the competitive promotion process.  (JA 12, 354-355)  African-Americans
were disproportionately left without such assistance and were disadvantaged in the promotion process.
The Agency never moved to dismiss Medlock’s disparate impact claims, or for summary judgment on these
claims; consequently, these claims should have survived the Agency’s motion.
A.        Disparate Impact of WORKFORCE 21
As discussed in Medlock’s Complaint and Opposition (JA 349-350), the WORKFORCE 21 promotion policy,
now abandoned by Defendant, had an adverse impact on African-Americans, constituting a prima facie case of
discrimination under the disparate impact theory.  Wards Cove v. Atonio, 490 U.S. 642 (1989); Griggs v. Duke
Power, 401 U.S. 424 (1971).  The adverse impact of WORKFORCE 21 on African-Americans was specifically
acknowledged by General Clapper and discussed, with supporting documentation, in Medlock’s Complaint.  
(JA 13, 65-70)  NIMA’s own 2001 investigation and Report reveals that WORKFORCE 21 had an adverse
impact on African-Americans.  (JA 354-355, 372-373, 387-391)  Medlock has, therefore, established a prima
facie case of disparate impact, as alleged in his complaint, through the implementation of WORKFORCE 21.  
B.        Disparate Impact of Nepotism
The Fourth Circuit established, thirteen years ago, that nepotism, although not a violation of Title VII per se,
violates Title VII when its practice has a disparate impact on the basis of race.  Thomas v. Washington County
School Board, 915 F.2d at 924 (4th Cir. 1990).   Courts have therefore recognized that where a selecting official
favors his/her friends and/or relatives in employment decisions, the selectees tend to be of the same race, or
protected class, as the selecting official.  Id.               
The trial judge granted summary judgment to the Agency on all of Medlock’s claims, but did not address
Medlock’s disparate impact claims and did not analyze them under the disparate impact case law cited by
Medlock.  The trial court only mentioned one of Medlock’s disparate impact claims in footnote 6, on pages 16-
17 (JA 94-95), and mischaracterized it as a disparate treatment claim.  (JA 94-95, fn. 6).  Medlock specifically
brought this omission to the trial court’s attention in his Motion for Reconsideration (JA 434-435-436).  The trial
judge’s April 4, 2003 Memorandum Opinion purported to address Medlock’s disparate impact claims, but, in
fact, again mischaracterized them as disparate treatment claims and never discussed the controlling Fourth
Circuit case, Thomas v. Washington County School Board, 915 F.2d at 924, or any other case law examining
disparate impact analysis.   (JA 113-114)
Medlock alleged that co-decision-maker Judy Scheibel favored her friends and associates from St. Louis, all
White females, and that this was a substantial factor in the result that only these four White females were
promoted to the competitive promotions for which Medlock applied.   If the facts are undisputed, Medlock, not
the Agency, is entitled to summary judgment.   
V.        THE TRIAL COURT ERRED, AS A MATTER OF LAW, IN GRANTING SUMMARY JUDGMENT TO THE
AGENCY ON MEDLOCK’S RETALIATION CLAIM

The trial judge granted summary judgment to the Agency on Medlock’s retaliation claim, holding, as a matter of
law, that a downgrade in a performance appraisal does not constitute an adverse action; however, an adverse
action is defined as “any action reasonably likely to deter protected activity,” including a reduction in a
performance appraisal.  Pallante v. Department of Justice, EEOC Appeal No. 01A04996 (July 6, 2001); see
also Arriola v. National Imagery and Mapping Agency, 01995813 (Dec. 11, 2001 (being excluded from
conversations regarding workload and the agency’s refusal to process a document for approval constituted an
adverse action, within the meaning of Title VII, to qualify the complainant as a “person aggrieved.”)  
In order to establish a prima facie case of retaliation, Plaintiff must show that: (1) he was engaged in protected
activity under Title VII; (2) he was subjected to adverse employment action; (3) and a causal connection exists
between the protected activity and the adverse action.  Texas Department of Community Affairs v. Burdine, 450
I.S. 248, 252-253 (1973); Brown v. Brody, 33 U.S. App. D.C. 233, 199 F.3d 446, 452 (D.C. Cir. 1999); Stewart v.
Evans, 275 F.3d 1126, 1133, 2002 U.S. App. Lexis 418 (D.C. Cir. 2002).
In the context of Title VII, an adverse action is not restricted to classic adverse personnel actions such as
termination, demotion or loss of a tangible job benefit.  Retaliatory harassment may take form of interrogation,
reprimands, surveillance, unwarranted or unfavorable evaluations, or deprivation of normal benefits or rights of
position, such as overtime, vacations, in-house dispute resolution procedures, office privileges and client
access.  Lex K. Larson, Employment Discrimination § 34.04, at 34-57 to 34-62 (2d ed.1995) Retaliation can
occur when an employer responds to protected activity in a manner that is "'more disruptive than a mere
inconvenience or an alteration of job responsibilities' [or] changes in duties or working conditions that cause
no materially significant disadvantage." Kim v. Nash Finch Co., 123 F.3d 1046, 1060 (8th Cir. 1997).  The court
in Kim upheld the plaintiff’s claim of retaliation because his duties had been reduced, he received much lower
performance evaluations than he had received before filing his employment discrimination charge and he was
required to undergo special remedial training.  See also Drake v. Minnesota Mining & Manuf. Co., 134 F.3d
878, 886 (7th Cir.1998) ("retaliation can take the form of a hostile work environment"); Washington v. Jenny
Craig Weight Loss Ctr., 3 F. Supp. 2d 941, 949 (N.D. Ill. 1998) ("The very gist of a retaliatory harassment action
is that the employer has 'lashed out' against an employee for filing discrimination charges); Dortz v. City of
New York, 904 F. Supp. 127, 156 (S.D.N.Y. 1995) (employer's actions disadvantaged and interfered with
employee's ability to perform her job); Caliendo v. Bentsen, 881 F. Supp. 44, 48 (D.D.C. 1995) (alleging
personnel actions such as removal from undercover operation, failure to receive monetary award, removal as
acting group supervisor, receipt of letter of reprimand, etc. constituted series of adverse employment actions in
retaliation for EEOC activities).   
In Singletary v. District of Columbia, 225 F. Supp. 43, 62 (D.C.D.C. 2000), the Court specifically recognized
hostile work environment claims, based on retaliation.  "Certainly, harassment in retaliation for an employee's
protected activities could constitute an 'adverse employment action.” Accord Settle v. Baltimore County, 34 F.
Supp. 964, 994 (D. Md. 1999), Cobb v. Anheuser Busch, Inc., 793 F. Supp. 1457, 1491 (E.D. Mo. 1990);
Gentner v. Cheyney University of Pennslycannia, 1999 U.S. Dist. LEXIS, at 62-64, 72-73, 78-79, 83 (E.D. Pa.
1999).  
Where the adverse treatment closely follows, or occurs “on the heels of” the protected activity, Plaintiff has
established a prima facie case of retaliation.  Martin v. Howard University, 1999 U.S. Dist. LEXIS 19516 (D.C.D.
C. 1999) (non-renewal of professor’s contract, less than one month after plaintiff first reported sexual
harassment/stalking by a non-employee on campus and the same day as her last complaint), citing Ramirez
v. Oklahoma Dep't of Mental Health, 41 F.3d 584, 596 (10th Cir. 1994) (adverse action a month and a half after
protected activity constituted circumstantial evidence of retaliation); Goos v. Nat'l Ass'n of Realtors, 715 F.
Supp. 2, 3-4 (D.D.C. 1989) (five weeks constituted a short enough time lapse to establish a causal
connection); Castle v. Bentsen, 867 F. Supp. 1, 3 (D.D.C. 1994) (three to five months is a short enough time
lapse between EEO activity and reprisal to establish a causal connection).  See also Brown v. Brody, 339 U.S.
App. D.C. 233, 199 F.3d 446, 452-53 (D.C. Cir. 1999); Cones v. Shalala, 339 U.S. App. D.C. 299, 199 F.3d 512,
520 (D.C. Cir. 2000); Childers v. Slater, 44 F. Supp. 2d 8, 18 (D.D.C. 1999).
Medlock informally complained of discrimination on October 12, 2000 and filed a formal complaint on October
17, 2000.  (JA 16-17, 350, 362-363)  On December 21, 2000, Medlock received a performance appraisal that
was lower than his previous appraisal, and, in fact, was only five points away from placing him on a “PIP,”
which would indicate that he was in danger of losing his job altogether.  (JA 16-17, 350, 362-363)
In sharp contrast to Webster’s “assessment,” Medlock other supervisors and co-workers praised him as an
exceptional employee.  The performance appraisal given Medlock “on the heels” of his EEO complaint was
intended to punish Medlock for his EEO activity and to deter him and others from making EEO complaints.  
This evaluation may serve as the basis for other employment and promotional opportunities, including
employment outside of the government and any application that he makes to return to government.  
Furthermore, it is degrading and discouraging, creating emotional distress and reducing morale and
motivation, for a person who has extended himself far beyond his requirements, as had Medlock.  Plaintiff was
entitled to proceed on this claim and summary judgment should not have been granted.         
IV.        THE TRIAL JUDGE ERRED, AS A MATTER OF LAW, AND BY ABUSING HER DISCRETION, IN
GRANTING SUMMARY TO THE AGENCY WITHOUT THE BENEFIT OF ANY DISCOVERY

A.        Defendant’s Motion for Summary Judgment was not Ripe for a Decision and the Court Should only have
Considered its Motion to Dismiss

A motion for summary judgment should only be considered where the non-moving party has had an
opportunity to fully develop discovery. Nguyen v. CNA Corp, 44 F.3d 234, 242 (4th Cir. 1995), citing v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322, (1986); Temkin v. Frederick
County Comm'rs, 945 F.2d 716, 719 (4th Cir. 1991) cert. denied, 502 U.S. 1095, 117 L. Ed. 2d 417, 112 S. Ct.
1172 (1992). Accord Aiken, v. Policy Management Systems Corporation, 13 F.3d 138 (4th Cir. 1993); Mann v.
Princeton Community Hospital Association, Inc; 1992 U.S. App. LEXIS 3432 at 2 (4th Cir. 1992); Iverson v.
Johnson Gas, 172 F.3d 524, 525 (8th Cir. 1999); Burns v. Gadson State Community College, 908 F.2d 1512
(11th Cir. 1990); Snook v. Trust Co. of Georgia Bank of Savannah, N.A. 859 F.2d 865, 870 (11th Cir. 1988);
Palmer v. Tracor Inc., 856 F.2d 1131 (8th Cir. 1988); Garrett, v. San Francisco Fire Department, 818 F.2d 1515,
1518 (9th Cir. 1987); Sperling v. Hoffman-LaRoche, Inc. 118 F.R.D. 392, 397 (D.NJ. 1988).
Rule 56(c) specifically states that a judgment should only be entered for the moving party:
if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to a
judgment, as a matter of law.

When the district judge granted the Agency summary judgment, the only “pleading” in the file was the
Complaint.   There is still no Answer to the Complaint.  There are no answers to interrogatories, admissions
or depositions.  There are no responses to document requests.  There are only records in the file, exclusively
in control of the Agency, that the Agency has chosen to produce and affidavits that Agency counsel drafted for
the Agency’s employees.  Medlock has had no opportunity to request the documents that he deems relevant,
question any witnesses about them, or to find contradictions in the Agency’s assertions or support for his
position in Answers to Interrogatories or Admissions.  Discovery is the most basic right of a litigant in
collecting the information needed to properly present his/her case.  
The trial court recognized that summary judgment is only proper if no material facts are in dispute and the
moving party is entitled to judgment, as a matter of law.  December 31, 2002 Order, 9, citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).  If a
reasonable juror could resolve disputed facts in a manner favoring of the non-moving party and thus find in
favor of that party, summary judgment must be denied.  Id.  Without discovery, the non-movant is prevented
from making the evidentiary showing necessary under Rule 56(e) to defeat a Motion for Summary Judgment.  
Id.
Federal Courts have long disfavored summary judgment in employment discrimination cases, where motive
and intent are at issue.  Straughn v. Delta Air Lines, Inc., 250 F.3d 23 (1st Cir. 2001); James v. Sheahan, 137 F.
3d 1003 (7 Cir. 1998); Senner v. Northcentral Tech. College, 113 F.3d 750 (7 Cir. 1997); Wohl v. Spectrum Mfg.,
94 F.3d 353 (7 Cir.1996), reh, en banc, den 1996 U.S. App. LEXIS 30599; Webb v. Garelick Mfg. Co., 94 F.3d
484 (8 Cir. 1996); Bohac v. West, 85 F.3d 306 (7 Cir. 1996); Randle v. City of Aurora, 69 F.3d 441 (10 Cir. 1995);
Collier v. Budd Co. 66 F.3d 886 (7th Cir.1995); Perdomo v. Browner, 67 F.3d 140 (7th Cir. 1995); Barnhart v.
Mack Trucks, 157 FRD 427 (N.D. Ill.1994), affd without op 52 F.3d 328 (7th Cir.1995); Kralman v. Illinois Dep't
of Veterans' Affairs, 23 F.3d 150 (7th Cir. 1994), reh den., 1994 U.S. App LEXIS 13376, cert den., 513 U.S. 948;
Courtney v. Biosound, Inc. 42 F.3d 414 (7th Cir.1994); Batey v. Stone, 24 F.3d 1330 (11th Cir. 1994); Sarsha v.
Sears, Roebuck & Co. 3 F.3d 1035, reh, en banc, den (7th Cir. 1993) 1993 U.S. App. LEXIS 27267; Piesco v.
New York, Dep't of Personnel, 933 F.2d 1149 (2nd Cir. 1991), cert den 502 U.S. 921 (1991); Rosen v.
Thornburgh, 928 F.2d 528 (2nd Cir. 1991); Thornbrough v. Columbus & G. R. Co., 760 F.2d 633 (5th Cir. 1985);
Jones v. Western Geophysical Co. 669 F.2d 280 (5th Cir. 1982); Foster v. Swift & Co., 615 F.2d 701 (5th Cir.
1980); Hayden v. First Nat'l Bank, 595 F.2d 994 (5 Cir. 1979).
Depositions, interrogatories, and document production may be necessary to determine whether a Title VII
defendant’s stated reason for the challenged action is pre-textual.  Chernova v. Electronic Systems Services,
Inc., 247 F. Supp. 2d 720, 723 (D. Md. 2003).  Intent and motive must be ascertained through cross-
examination of the of the decision-makers and other witnesses regarding the Defendant’s purportedly non-
discriminatory reasons for the adverse action. The demeanor and credibility of the witnesses is also relevant
to determining intent and motive.     
Where the Defendant has access to its employees and the relevant records, and Plaintiff can only question
these employees and/or obtain these records through discovery, nearly every Title VII/ADEA/ADA plaintiff could
be “cut off at the knees” in litigation if the Defendant could simply file a Motion to Dismiss, halting/preventing
discovery, and simultaneously file a Motion for Summary Judgment which would require the plaintiff to produce
substantive evidence – not yet in plaintiff’s possession – to defeat the Motion for Summary Judgment.  
In his Opposition, Medlock argued that consideration of Defendant’s Motion for Summary Judgment, pursuant
to Rule 56, was not appropriate or timely, since no discovery had taken place and the Agency had not even
answered the Complaint; accordingly, Medlock responded to the Agency’s Motion to Dismiss, pursuant to Rule
12(b), which should be considered based on the sufficiency of the pleadings,  with Medlock’s factual
allegations being accepted as true.  (JA 84-86, December 31, 2002), citing cases.  Medlock even went well
beyond his Complaint and submitted all documentation in his possession in support of his factual
allegations, to the extent that he had access to this documentation without discovery.  Medlock also specified
the needed discovery and why this discovery was necessary to present proof of Medlock’s claims for purposes
of a motion for summary judgment and/or for trial.  (JA 343, 351, 352, 353, 360, 419, 420, 423, 424, 425, 426,
430, 431, 432, 433, 434, 435, 436, 464, 465, 466, 467)  
Medlock prevailed against the Agency’s Motion to Dismiss.   (JA 86-91)  Since the only pleading in the record
was the Complaint, pursuant to Fed. R. Civ. P. 12(b)(6), Medlock was entitled to have his well-pled allegations
accepted as true.  Medlock respectfully submits that the trial court should have stopped at this point and not
proceeded to address Defendant’s Motion for Summary Judgment under Rule 56, thus obviating the need for
any affidavit or equivalent under Rule 56(f).
B.        Plaintiff Met the Substantive Requirements of Rule 56(f)

The Court granted Defendant’s Motion for Summary Judgment, based on the absence of an affidavit, pursuant
to Rule 56(f) to refute the Agency’s purported legitimate, non-discriminatory reasons for its denial of Medlock’s
promotion or to “specif[y] legitimate needs” of (additional)  discovery.  (JA 94).  
Only six months ago, Judge Chasanow’s colleague on the bench, Judge J. Frederick Motz, considered the
issue of a Rule 56(f) affidavit, in a Title VII case identical to the case at bar in all respects relevant to Rule56(f),
Chernova v. Electronic Systems Services, Inc., 247 F. Supp. 2d 720.  
Not only did Judge Chasanow fail to follow the precedent set by her own court only two months earlier, but she
never even cited Chernova in her April 4, 2003 Memorandum Opinion.  Moreover, Judge Chasanow specifically
held, contra to Chernova, that Harrods Limited v. Sixty Internet Domain Names, 302 F.3d 214 (4th Cir. 2002)
does not apply to Title VII cases.   These contradictory rulings within the same district court need to be
resolved by the Fourth Circuit.
Federal Courts, including the Fourth Circuit, have reversed motions for summary judgment based on the
absence of a 56(f) affidavit where the attorney,  in the Opposition to the Motion for Summary Judgment, or even
in other pleadings, has put the Court on notice that pending discovery needs to be completed to present the
necessary evidence to defeat the motion for summary judgment.  Harrods, 302 F.3d at 244-245 and fn. 18.  
The purpose of the affidavit is to ensure that the nonmoving party is invoking the protections of Rule 56(f) in
good faith and to afford the trial court the showing necessary to assess the merit of a party's opposition."
(citations)  When the nonmoving party, through no fault of its own, has had little or no opportunity to conduct
discovery, and when fact-intensive issues, such as intent, are involved, courts have not always insisted on a
Rule 56(f) affidavit if the nonmoving party has adequately informed the district court that the motion is
premature and that more discovery is necessary. (citations)  Specifically, if the nonmoving party's objections
before the district court "served as the functional equivalent of an affidavit" (citation), and if the nonmoving party
was not lax in pursuing discovery, then we may consider whether the district court granted summary judgment
prematurely, even though the nonmovant did not record its concerns in the form of a Rule 56(f) affidavit.
                         ….
This approach is also supported by commentary. See, e.g., Edward Brunet, The Timing of Summary
Judgment, 198 F.R.D. 679, 689-695 (2001) (reviewing cases applying Rule 56(f) liberally and concluding that
"these cases exhibit sound reasoning"); John F. Lapham, Note, Summary Judgment Before the Completion of
Discovery: A Proposed Revision of Federal Rule of Civil Procedure 56(f), 24 U. Mich. J.L. Ref. 253, 269 (1990)
("Courts that allow some deviation from the strict letter of rule 56(f) have the stronger argument. The intent of
the drafters to infuse the Federal Rules with a spirit of procedural liberality is evident throughout the rules
themselves as well as the advisory committee's notes."); 10B Charles A. Wright, Arthur R. Miller, & Mary Kay
Kane, Federal Practice & Procedure § 2740, at 402-406 & n.14 (3d ed. 1998).

Id., fn. 18.  In Harrods, this Court thoroughly explained the case law addressing the purpose and substantive
compliance with the requirement of a Rule 56(f) attorney affidavit, citing Sames v. Gable, 732 F.2d 49, 51-52 &
n.3 (3d Cir. 1984) (where there were outstanding document requests, plaintiff's failure to file was "not
sufficiently egregious by warrant a non-merits resolution of the case"); Cowan v. J.C. Penney Co., 790 F.2d
1529, 1532 (11th Cir. 1986) (Rule 56 filing unnecessary where plaintiff had properly brought to court's attention
that discovery was still outstanding); First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 298, 88
S. Ct. 1575 (1968) (plaintiff’ Opposition and  Statement of a Material Facts As To Which There is a Genuine
Dispute, making plain that plaintiff needed information that still remained in the defendants' hands, served as
an adequate substitute for a Rule 56(f) affidavit).
This Court has twice reaffirmed its holding in Harrods within the last several months.  Weiters v. Roper
Hospital, 58 Fed. Appx. 40, 44, 2003 U.S. App.  LEXIS 3620 at *9 (4th Cir. 2003) (the absence of an attorney
affidavit is not fatal to a Rule 56(f) request for additional discovery to resist summary judgment); Bruette v.
Inman, 2003 U.S. LEXIS App. 12754 (the trial court properly assessed the need for discovery before granting
summary judgment, even though the plaintiff, not the attorney, filed an affidavit under Rule 56(f), offering his
personal opinions regarding the need for additional discovery).  
The Federal District Court for Maryland, in February of 2003, specifically adopted the Harrod’s analysis in a
Title VII case in precisely the same procedural posture as the case at bar, Chernova v. Electronic Systems
Services, Inc., 247 F. Supp. 2d at 722-723:
Rule 56(f) requires a party that wishes to oppose a motion for summary judgment because more time is
needed for discovery to file an affidavit to that effect.  Fed. R. Civ. P. 56(f).  The Fourth Circuit has recently held,
however, that Rule 56(f) affidavits are not necessary.  Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d
214, 244-45 (4th Cir. 2002).  If the non-moving party makes objections that satisfy the purpose of an affidavit
and is not lax in pursuing discovery, he or she may not need to file a Rule 56(f) affidavit.  Id. at 245.  “The
purpose of the affidavit is to ensure that the non-moving party is invoking he protections of Rule 56(f) in good
faith and to afford the trial court the showing necessary to assess the merit of a party’s opposition.  Id. at 244
(quoting First Chicago Int’l v. United Exchance Co., 267 U..S. App. D.C. 836 F.2d 1375, 1380 (D.C.Cir. 1988)).

 In her opposition, plaintiff states why she needs discovery and what discovery she plans to request.  She
contends that she needs interrogatories, depositions, and document production to prove ESS’s reasons for
terminating her were pretextual.  (Pl.’s Opp’n at 7.)  This demonstrates that plaintiff is invoking the protections
of Rule 56(f) in good faith and in an attempt to allow me to assess the merits of her opposition to ESS’s
motion for summary judgment.   Moreover, plaintiff has not been lax in discovery because she has not yet had
an opportunity to conduct any discovery.  (Id. at 6)

Judge Chasanow attempted to distinguish Harrods from the case at bar because Harrods is a trademark
case and the current case is an equal employment, civil rights case  (JA 109, 111-112), but offers no authority
for doing so.  Instead, the trial judge purported to rely on a seven year old case, less developed case than
Harrods, Evans v. Technologies Applications and Service Co., 80 F.3d 954 (4th Cir. 1996).  (JA 95, 109, 111-
112)   There is absolutely no authority or rationale for distinguishing between the causes of actions in
assessing the requirements of Rule 56(f), a procedural rule for all civil cases, irrespective of the causes of
action.  In fact, her own court had already applied the Harrods Rule 56(f) analysis to a Title VII employment
discrimination case,  Chernova v. Electronic Systems Services, Inc., 247 F. Supp. 720.  
There can be no justification for singling out civil rights plaintiffs and treating them less favorably than litigants
in trademark and other civil cases.  To the contrary, the right to be free from illegal discrimination has been
held to be a highly regarded right and summary judgment is strongly disfavored in such cases, as discussed
in Section IV, A, of this Brief.  
Finally, Judge Chasanow has not accurately represented this Court’s holding in Evans.  Evans does not
support the mechanical application of Rule 56(f), granting summary judgment based solely on the lack of an
affidavit.  Evans only holds, as does Harrods, that the non-moving party is obligated to notify the Court that
discovery has been insufficient/nonexistent, and that some, or additional discovery may be necessary to defeat
the motion for summary judgment:
… the non-moving party cannot complain that summary was granted without discovery unless that party had
made an attempt to oppose the motion on grounds that more time was needed for discovery or moved for a
continuance before the district court ruled.

80 F.3d at 961.  
Evans never informed the district court that she needed time to develop the factual record so that she could
properly oppose TAS’ (defendant’s) motion.

80 F.3d at 962.  The Fourth Circuit acknowledged that, in Evans, the plaintiff had mentioned, twice, in her
Opposition, that discovery had not yet taken place, but also stated that discovery was not necessary for her to
defeat establish a prima facie case of discrimination.  This Court, in Evans, reasoned that courts “reasonably
expect notification and explanation when more time for discovery is needed.”  80 F.3d at 962.  This Court
determined that Evans had not done so.  
Medlock clearly filed an Opposition and Statement of Undisputed Material Facts that served the same purpose
as a 56(f) affidavit.  Judge Chasanow’s description of Medlock’s Opposition (JA 111) is simply erroneous and
inaccurate, likening the instant case to Evans, rather than Harrods:
Similarly, in the instant case, Plaintiff generally raised discovery concerns twice, without clearly informing the
court what discovery he believed was needed.

Judge Chasanow’s April 4, 2003 opinion actually contradicts her December 31, 2002 opinion, in which she
acknowledged that Medlock did not just “mention” that discovery had not taken place, but explained why it was
necessary:
Plaintiff asserts that summary judgment is inappropriate at this state because discovery must be permitted in
order to obtain the proof necessary to establish pretext.  

(JA 94)
Medlock notified the district court, numerous times in its Opposition, that discovery was needed to defeat a
motion for summary judgment and explained why.  On page 2 of Medlock’s Opposition (JA 343), Medlock
explained:
Plaintiff is not required, in his Complaint, without the benefit of discovery, to establish that Defendant’s stated
legitimate reason for Plaintiff’s non-selection is pre-textual, but must be permitted discovery in order to obtain
the proof establishing pre-text;

On page 10 of his Opposition, Medlock set forth Supreme Court law on this issue:

The Supreme Court has held that the Complaint should be construed liberally in order to permit a Plaintiff to
develop his/her case in Court:

a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him to relief…. The Federal Rules
of Civil Procedure do not require a claimant to set out in detail the facts upon which he assess his claim.  To
the contrary, all the Rules require is “a short and plain statement of the claim” that will give the defendant fair
notice of what the plaintiff’s claim is and the grounds upon which it rests…. Such simplified “notice pleading “
is made possible by the liberal opportunity for discovery and the other pretrial procedures established by the
Rules of disclose more precisely the basis of both claim and defense and to define more narrowly the
disputed facts and issues.  

Conley v. Gibson, 355 U.S. 41, 45-46, 47-48 (1957).  Courts are reluctant, and well should be, to deprive a
Plaintiff of his/her day in Court without any opportunity to conduct discovery or otherwise discover the specific
evidence that is held in the guarded possession of the Defendant.

On page 11 of his Opposition (JA 352), Medlock stated:

Currently, there is little evidence in the record.  No discovery has taken place.  Defendant has not even
answered the Complaint.  Defendant pretends that, in order to avoid Summary Judgment, Plaintiff must prove
his entire case, including his rebuttal, in his Complaint.  Such is not the case.  

         …
Plaintiff cannot determine whether he was a “better qualified candidate” than the four selectees without
discovery.  

On page 12 (JA 353), of his Opposition, Medlock explained:

Defendant urges the Court to accept its stated non-discriminatory reasons for Plaintiff’s non-promotion as fact,
without the benefit of interrogatories, document production, depositions, or other Court mandated methods for
uncovering the truth.  Currently, Defendant has not even provided an Answer to the Complaint.  There is no
authority in the law for such a result – nor should there be such a disservice to the interests of justice.    

On page 19 of his Opposition (JA 360), Medlock explained:

Discovery would reveal whether career interns in other divisions were “grandfathered in.”  Plaintiff has
produced a list of 32 persons who were considered career ladder after the implementation of WORKFORCE
21.  (Complaint, paragraph 38).  Only through discovery can Plaintiff explore why these people were excepted
or determine whether other persons were also excepted.

On page 11 of his Opposition (JA 352), Medlock explained:

The legitimacy of the rating system must be examined rather than perfunctorily accepted simply because
subjective criteria have been transformed into numbers.

On page 12-13 of his Opposition (JA 353-354), Medlock explained that the Agency is not entitled to summary
judgment because it did not carry its burden of establishing that the material facts are undisputed:
Unless Defendant is admitting the factual allegations in Plaintiff’s Complaint, the material facts are very much
disputed.  Defendant did not provide a Statement of Undisputed Facts, but Plaintiff has attached such a
Statement.  If Defendant disputed the alleged material facts in its Reply, it must withdraw its Motion for
Summary Judgment.  Summary Judgment is only proper if no material facts are in dispute.  

Despite this specific warning, the trial court, with conflicting material allegations before it, inappropriately
usurped the province of the jury, making findings of fact.  Without allowing discovery for Medlock to obtain the
evidence to which any litigant is entitled, adopted the Agency’s allegations as its own findings of fact.  The trial
judge held that Medlock did not carry his burden of proof and did not meet the Rule 56(f) requirements to delay
a decision on summary judgment to conduct discovery.  
As in Chernova, Medlock’s Opposition placed the trial court on specific notice that no discovery had taken
place.  (JA 352)  As in Chernova, Medlock specifically explained to the district court that, without the opportunity
for discovery, including document production, Answers to Interrogatories, depositions of the decision-makers,
he was thwarted in his ability to prove that the Agency’s stated legitimate reasons for Medlock’s non-promotion
were pre-textual.  (JA 352, 353, 360).  
Medlock submitted to the Court the best evidence in his possession, indicating that the stated reasons were
pre-textual and/or had a disparate impact on African-Americans, unjustified by business necessity;  
nevertheless, the Court accepted as true, the Agency’s stated reasons for Plaintiff’s rejection for the promotion  
(JA 96-99), and prevented Medlock from proceeding with discovery, in direct conflict with the holdings in
Harrod, Chernova and the cases relied upon therein.
C.        An Attorney Affidavit is an Awkward and Artificial Means of Meeting a Technical Requirement of  Rule 56
(f)  

The body of law involving the awkwardness of an attorney affidavit under Rule 56(f) is discussed in Plaintiff’s
Motion for Reconsideration.  (JA 426-430)  The trial court has treated Medlock’s counsel’s omission of a Rule
56(f) affidavit with his Opposition, essentially, as irreparable malpractice. (JA 109)  Indeed, the trial judge says
of Medlock’s counsel:
Additionally, Plaintiff’s counsel now submits an affidavit in order to comply with “the letter, as well as the spirit
of rule 56(f).”  Paper no. 15, at 2.  This affidavit is clearly overdue.  In the affidavit, Plaintiff’s counsel tries to
explain that she did not file a Rule 56(f) affidavit earlier because she did not believe that Plaintiff’s case was
“even in the category of cases” requiring the non-moving party to explain why discovery was needed.  I., Ex. A,  
4.  However, to the extent that Rule 60(b) applies here, it does not protect Plaintiff from his lawyer’s
miscalculations.   See Evans v. United Life and Accident Ins. Co., 871 F.2d 466, 472 (4th Cir. 1989) (“a lawyer’s
ignorance or carelessness do [sic] not present cognizable grounds for relief under [Rule} 60(b)”).

(JA 109)  
Judge Chasanow’s excerpt omits counsel’s specific distinction between notifying a court of specific
“additional” discovery needed an notifying a court that no discovery at all has taken place and is needed.  
Paragraph 4 is only one paragraph of counsel’s five-page affidavit, encompassing seventeen single-spaced
paragraphs.  (JA 441-445)  The affidavit fully explains that counsel included in the Opposition specific
references to the need for discovery to carry Medlock’s burden of proof on each issue.  Paragraph 4 actually
states:  
I did not personally file an affidavit stating what discovery had not been conducted or why discovery was
necessary before the Court entertained a motion for summary judgment because I did not believe that the
case was even in the category of cases requiring the non-moving party to explain why “additional” discovery
was needed.  Since no discovery had been conducted at all and no answer had been filed, I believed that a
motion for summary judgment was premature and so argued in the Opposition.  Based on my research prior
to filing the Opposition, it was my understanding that, where facts are disputed, a motion for summary
judgment was only appropriately considered once the non-moving party had a full opportunity to conduct
discovery.  Since I argued, in the Opposition, that a Motion for Summary Judgment was not ripe for
consideration, I did not believe that Rule 56(f) applied.  

(JA 441)  

Although the trial court characterizes counsel’s failure to provide a Rule 56(f) affidavit to inexcusable
“ignorance” and “carelessness,”  the attorney affidavit is not a requirement set forth in Rule 56(f), but is a
concept that grew in case law, not known to most practicing attorneys.  Medlock’s counsel is clearly not the
only attorney who was unaware that an attorney affidavit is expected to comply with Rule 56(f).  
The body of case law and prominent legal commentaries addressing this scenario, cited by this Court in
Harrods, Chernova, and the cases cited therein, demonstrate that highly experienced litigators, even in large
law firms sharing information, have fallen in to the Rule 56(f) affidavit “trap.”  Although Rule 56(f) was intended
to prevent premature summary judgment, it can be used, as in this case, as a trap for plaintiffs’ attorneys.  In
lieu of answering the Complaint, addressing the merits of a case, Defendants can simply style a motion to
dismiss as a “Motion to Dismiss, or, in the Alternative, for Summary Judgment,” where there has been no
discovery, and hope that: 1) plaintiff’s counsel has never previously encountered this precise issue; and 2) that
the trial judge will mechanically apply the harshest ruling and clear his/her calendar of the case.  This process
does not further “the interests of justice” or serve any legitimate interest.  The appellate courts and
commentators have rejected sanctioning such a process.
Judge Chasanow’s harsh ruling and language arguably invite a malpractice suit by Medlock against his own
counsel for failing to submit a Rule 56(f) affidavit.  Should all of the attorneys discussed in Harrods, Chernova,
and the cases cited therein, have been sued for malpractice?       
Appellate courts and prominent legal commentators have not castigated attorneys who were unaware of the
Rule 56(f) “trap,” as having irreparably malpracticed.  Unless an attorney is specifically aware of the artificial
creation of this means of mechanically complying with Rule 56(f), the logical and natural recourse is to explain
the need for discovery in the opposition to Defendant’s motion.  Medlock clearly did so in his Opposition to
Defendant’s Motion for Summary Judgment.   
The application of the “letter” of Rule 56(f), granting summary judgment to Defendant, is unduly harsh.  Strict,
mechanical adherence to Rule 56(f) has resulted in manifest injustice.   Although Medlock believes that his
substantive compliance with Rule 56(f), alone, merits amending the Order to deny Defendant summary
judgment, after the trial court’s December 31, 2002 Memorandum Opinion, Medlock’s counsel took all
possible measures to remedy the technical procedural deficiency, providing a Rule 56(f) affidavit, and asked
the trial court to reconsider the harsh result of its December 31, 2002 Order depriving Medlock of any
opportunity to prove his case.   (JA 419-448)  Despite the recently decided Chernova decision by her own court,
adopting Harrods in a Title VII case identical to the case at bar, Judge Chasanow repeated her errors of law
and fact, and abused her discretion, by refusing reconsider her December 31, 2002 Order. (JA 109).  
Consistent with Harrods and Chernova, the trial court’s award of summary judgment should be reversed.
VI.        DISCOVERY IS NECESSARY TO DETERMINE MATERIAL FACTS BEFORE SUMMARY JUDGMENT IS
CONSIDERED

A.        Discovery is Needed to Determine Career Ladder Status

As noted in Section II, above, the trial judge accepted as fact the Agency’s purported legitimate, non-
discriminatory reason for Medlock’s non-promotion.  The trial court first accepted the Agency’s claim that
Medlock was not a career ladder employee, entitled to a non-competitive promotion.  JA 96-97.  Medlock’s  
status as a career ladder employee is a disputed fact, as Medlock asserted in his Opposition (JA 360)  
Medlock submitted, as Exhibit A of his Opposition, the Vacancy Announcement that led him to believe that he
was accepting a career ladder position.  (JA 375-377)  
The Vacancy Announcement for the Human Resources career intern position, accepted by Plaintiff, posted on
March 29, 1999 (closing April 9, 1999), was written as a “GS” “career ladder” position (JA 375-377), as
opposed to the newly “phased in” WORKFORCE 21 position (JA 379-383).  When Medlock accepted the
Human Resource career intern position, offered to him on October 14, 1999, to commence on October 25,
1999 (JA 385), Agency documentation indicated that he was accepting a position in which he could be non-
competitively promoted, a career ladder employee.  
The vacancy announcement for the position lists the position as “GS-5 or GS-7 or GS-9.”  (JA 379-383)  
Furthermore, Medlock was not Band 1 at the time that he applied for the position.  (JA 370)  In April of 1999, the
time of his application for the career intern position, Medlock was a GS-6 employee.  (JA 367)  WORKFORCE
21 was implemented in November of 1999. (JA 370)  Just before Medlock began his new position as a career
intern, the entire agency began to be “phased in” to WORKFORCE 21.    
The Agency has not explained why the Vacancy Announcement was written in conformity with career ladder
positions and what conversations surrounded the offer made to Medlock when he accepted this position.   
Medlock is entitled to make inquiries, through discovery, on this issue, in the form of an Answer to the
Complaint, Interrogatories, depositions and document production.  The right to full discovery on this issue –
and the complete absence of any opportunity to do so -- precludes summary judgment.    The trial court’s
erroneous factual finding on this issue should be reversed, summary judgment vacated, and discovery
conducted on this issue.
B.        Discovery is Needed to Uncover Exceptions to WORKFORCE 21

The trial judge accepted as true the Agency’s claim that there were no exceptions to the WORKFOCE 21,
competitive promotion system, except those “grandfathered” into the career ladder system.  (JA 96-97).  The
trial court accepted the Agency’s assertion that the two other Human Resources career interns (White
females) were grandfathered in, due to their selection dates; however, upon information and belief, 32
persons were promoted as career ladder employees after the implementation of WORKFORCE 21.  (JA  360).  
The trial court erroneously accepted, at face value, the Agency’s assertion that no exceptions were made.  
Medlock is entitled to serve Interrogatories, Document requests and Requests for admissions on this issue.  
He is also entitled to depose the Agency’s witnesses on this issue.  
C.        Discovery is Needed to Determine Intent and Motives of Decision-Makers

Medlock is entitled to serve Interrogatories, Document requests and Requests for admissions on the motives
of the decision-makers and the conversations that they had regarding the candidates, including how much
they may have been influenced by Webster and/or Schiebel.  Medlock is also entitled to depose the Agency’s
witnesses and cross-examine them regarding their purported non-discriminatory reasons for their subjective
selection.
The Court held that Medlock did not offer proof that he was the “most qualified” applicant (JA 98) (or one of the
four most qualified applicants, since four applicants were promoted).  Without any discovery, this was an
impossible burden for Medlock to overcome.  Unless he had stolen the personnel records of the selectees (for
which he could be terminated and/or criminally prosecuted), Medlock could not assess his own application
against those of the selectees.  Medlock is entitled to those personnel records in order to make this
assessment.  
In depositions, Medlock’s co-workers and supervisors could testify more specifically in comparing Plaintiff to
other candidates.  In addition, since some of the candidates were from other geographic locations, Medlock
has little or no information about them based on personal observations or reputation, but could only obtain
comparative information about them through discovery.  Medlock is entitled to pursue this information.
D.        Discovery is Needed to Determine Adverse Impact of WORKFORCE 21 and Lack of Business
Justification

Medlock is entitled to conduct discovery on the disparate impact of WORKFORCE 21 and the lack of a
business justification for it, as required by Wards Cove, Griggs and their progeny to defend a disparate impact
case.  Plaintiff should be afforded the opportunity to request documents used by the Agency to reach this
conclusion and to depose officials who can make these admissions on behalf of the Agency.   
E.        Discovery is Needed to Determine Nepotism in Promotion Process

Medlock is entitled to explore the relationships between Judy Scheibel and the four White female selectees
from St. Louis, whom she supervised, in order to determine whether she favored her friends, as a White
female who associates or identifies primarily with other White females, and/or whether she, or other White
supervisors, assisted them in the application process.         
NIMA’s own internal investigation indicates, that White supervisors assisted White applicants through the new
WORKFORCE 21 promotion process, while African-Americans were left to guess at what was required, never
having seen a sample application or been given any direction.  (JA 355-356, 387-391).  Plaintiff is entitled to
documents used by the Agency to reach this conclusion and to depose officials who can make these
admissions on behalf of the Agency.
CONCLUSION

The interests of justice are not furthered by cutting off Medlock’s opportunity to develop and present his case
based on the formality of the omission of an affidavit that does not substantively add to statements already
made in his Opposition.  For the foregoing reasons, Plaintiff respectfully requests that this Court reverse the
decision of the trial court granting summary judgment to the Appellee Agency.

                   Respectfully submitted,
                         
Dawn V. Martin, Esquire
                 Law Offices of Dawn V. Martin
                         1090 Vermont Avenue, Suite 800
                         Washington, D.C. 20005        
                         (202) 408-7040 telephone
 (703) 370-1226 facsimile
 dvmartinlaw@yahoo.com


REQUEST FOR ORAL ARGUMENT

Medlock respectfully requests oral argument in order to address any concerns of the Court.
Law Offices of  Dawn V.  Martin
Medlock v. Rumsfeld
Medlock Brief on Appeal before Fourth Circuit