Hillary Rodham Clinton is substituted as the defendant 1

under Fed. R. Civ. P. 25(d). 

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

______________________________

)

KIMBERLY A. Q. MILLIGAN, )

)

Plaintiff, )

)

v. ) Civil Action No. 09-0009 (RWR)

)

HILLARY RODHAM CLINTON, )

)

Defendant. )

______________________________)

MEMORANDUM OPINION AND ORDER

Plaintiff Kimberly A. Q. Milligan brought this action

against the Secretary of State alleging discrimination on the 1

basis of race and color and a hostile work environment in

violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e, et seq. The Secretary has moved to dismiss under

Federal Rule of Civil Procedure 12(b)(6) or, in the alternative,

for summary judgment under Rule 56, contending that Milligan has

failed to exhaust her administrative remedies and that Milligan

has failed to establish a prima facie case of discrimination and

hostile work environment. Milligan opposes, arguing for

discovery under Rule 56(f) and asserting that the Secretary’s

motion should be denied because the exhibits attached to the

motion are not admissible in evidence. Milligan has filed
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separately a Rule 56(f) motion and a motion to strike the

Secretary’s exhibits. While Milligan has demonstrated her

entitlement to discovery to respond to the defendant’s

dispositive motion regarding the hostile work environment claim,

she has failed to carry her burden of showing how the discovery

she seeks to obtain would create a genuine issue of material fact

as to her remaining discrimination claims. Therefore, Milligan’s

Rule 56(f) motion will be granted in part. Milligan will be

directed to supplement her Rule 56(f) motion demonstrating how

the discovery she seeks would create a genuine factual dispute as

to her remaining discrimination claims. The Secretary’s motion

for summary judgment and Milligan’s motion to strike will be

denied without prejudice to reinstating the motions should

Milligan fail to demonstrate an entitlement to the discovery she

seeks on her remaining discrimination claims. 

BACKGROUND

Milligan, an employee in the Executive Office of the Bureau

of Consular Affairs (“Agency”), filed suit under Title VII

alleging employment discrimination on the basis of race and

color, and a hostile work environment. The defendant has moved

to dismiss or, in the alternative, for summary judgment arguing

both that Milligan has failed to exhaust her administrative

remedies and that Milligan cannot establish a prima facie case of

discrimination. (Def.’s Mem. of P. & A. in Supp. of Mot. to
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Dismiss or, in the Alternative, for Summ. J. (“Def.’s Mem.”) at

4-17.) Milligan counters that under Rule 56(f), she should be

given the opportunity to conduct discovery because she cannot

fully oppose the Secretary’s motion without the benefit of

discovery. (Pl.’s Response and Opp’n at 6.) She also argues

that most of the exhibits submitted in support of the Secretary’s

motion are inadmissible under Rule 56(e) because they have not

been properly authenticated and contain inadmissible hearsay. 

(Id. at 5-6.) Meanwhile, Milligan has filed a motion to strike

the Secretary’s exhibits and a motion for Rule 56(f) discovery,

based on the same reasons articulated in her opposition. The

defendant opposes both motions.

DISCUSSION

A party may move to dismiss a complaint for failure to state

a claim upon which relief can be granted. See Fed. R. Civ. P.

12(b)(6). In reviewing a Rule 12(b)(6) motion, a court “must

treat the complaint’s factual allegations as true . . . and must

grant plaintiff the benefit of all inferences that can be derived

from the facts alleged.” Sparrow v. United Air Lines, Inc., 216

F.3d 1111, 1113 (D.C. Cir. 2000) (internal citation and quotation

marks omitted). However, “when, on a Rule 12(b)(6) motion,

‘matters outside the pleadings are presented to and not excluded

by the court, the motion must be treated as one for summary

judgment under Rule 56.’” 1443 Chapin St., LP v. PNC Bank, Nat’l
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Ass’n, 258 F.R.D. 186, 187 (D.D.C. 2009) (quoting Fed. R. Civ. P.

12(d)). Because the Secretary has submitted and relies upon

multiple exhibits in support of her motion, the motion will be

treated as one for summary judgment. 

“A party may respond to a motion for summary judgment by

moving for additional discovery.” Graham v. Mukasey, 608 F.

Supp. 2d 50, 52 (D.D.C. 2009). Rule 56(f) of the Federal Rules

of Civil Procedure provides that “[i]f a party opposing the

motion shows by affidavit that, for specified reasons, it cannot

present facts essential to justify its opposition, the court may

. . . order a continuance to enable affidavits to be obtained,

depositions to be taken, or other discovery to be undertaken[.]”

Fed. R. Civ. P. 56(f). This Rule “recognizes the importance of

discovery in defending a motion for summary judgment[,]” Wiggins

v. State Farm Fire and Cas. Co., 153 F. Supp. 2d 16, 19 (D.D.C.

2001) (citing Dyson v. Winfield, 113 F. Supp. 2d 35, 42 (D.D.C.

2000)), and “is intended to prevent railroading ‘a non-moving

party through a premature motion for summary judgment before the

non-moving party has had the opportunity to make full

discovery.’” Graham, 608 F. Supp. 2d at 53 (quoting Berliner

Corcoran & Rowe LLP v. Orian, 563 F. Supp. 2d 250, 253 (D.D.C.

2008)). “As the D.C. Circuit has consistently cautioned, summary

judgment ordinarily is proper only after the plaintiff has been

given adequate time for discovery.” 1443 Chapin St., LP, 258
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F.R.D. at 187 (internal quotation marks omitted). Under Rule

56(f), however, “[t]he party seeking discovery bears the burden

of identifying the facts to be discovered that would create

genuine issues of material fact and the reasons why the party

cannot acquire those facts without . . . discovery.” Graham, 608

F. Supp. 2d at 52-53. The Rule is not “designed to allow

‘fishing expeditions,’ and plaintiffs must specifically explain

what their proposed discovery would likely reveal and why that

revelation would advance the plaintiffs’ case.” Id. at 54.

To date, Milligan has not yet had the chance to engage in

discovery. (See Pl.’s Mem. of P. & A. in Supp. of Mot. for

Continuance (“Pl.’s Mem.”), Decl. of Pl. Milligan Pursuant to

Rule 56(f) (“Milligan Decl.”) ¶ 5.) She seeks, in part, to

obtain the “testimony of co-workers and others in management as

to . . . the nature, frequency, severity and extent of the

hostile work environment[.]” (Pl.’s Mem. at 2-3, Milligan Decl. 

¶ 2.) Milligan has identified by name certain employees from

whom she seeks to elicit statements made by her first line

supervisor, Herbert Casey, and information related to how Casey

treated her. (Pl.’s Mem. at 3, Milligan Decl. ¶ 3.) Milligan

also has demonstrated that she cannot adequately respond to the

defendant’s motion without conducting discovery of these

witnesses who are in the employ of the defendant and has made a

showing, albeit spare, that the testimony could create a genuine
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fact issue as to whether Casey’s behavior was frequent or severe

enough to create a hostile work environment. 

Milligan has identified other information that she seeks,

including personnel file documents, documents related to a 2008

Human Resources audit conducted by the State Department,

statistical information, and evidence of other race and color

discrimination complaints filed against the Agency (Pl.’s Mem. at

3-4, Milligan Decl. ¶ 4), but has failed to demonstrate how this

information would create a genuine issue of material fact on her

remaining discrimination claims. Because Milligan has not

purported to concede to the defendant’s dispositive motion on

those claims, but has failed to carry her burden of showing how

the additional discovery she seeks would advance her case, her

Rule 56(f) motion will be granted only in part. Milligan will be

directed to supplement her Rule 56(f) motion, identifying

specifically how the additional information she seeks would

create a genuine factual dispute on her remaining discrimination

claims. The defendant’s motion for summary judgment and

Milligan’s motion to strike will be denied without prejudice to

refiling them should Milligan fail to carry her burden of

demonstrating an entitlement to the discovery she seeks to obtain

on her remaining discrimination claims. 
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CONCLUSION AND ORDER

Because Milligan has shown that information she seeks could

create a genuine factual dispute as to her hostile work

environment claim, her Rule 56(f) motion will be granted in part. 

However, Milligan must supplement her Rule 56(f) motion, stating

specifically how the additional discovery she seeks would reveal

a genuine issue of material fact as to her remaining

discrimination claims. Further, Milligan’s motion to strike and

the Secretary’s motion to dismiss or, in the alternative, for

summary judgment will be denied without prejudice to refiling

them should Milligan fail to supplement adequately her Rule 56(f)

motion. Accordingly, it is hereby

ORDERED that Milligan’s Rule 56(f) motion [8] be, and hereby

is, GRANTED in part. Rule 56(f) discovery will be permitted

regarding the hostile work environment claim. However, before

the parties are asked to propose an order outlining the scope and

duration of any Rule 56(f) discovery, Milligan shall supplement

by April 1, 2010 her Rule 56(f) motion as explained above. It is

further

ORDERED that Milligan’s motion [9] to strike and the

Secretary’s motion [4] to dismiss or, in the alternative, for

summary judgment be, and hereby are, DENIED without prejudice to

reinstating the motions should Milligan fail to demonstrate an
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entitlement to the discovery she seeks on her remaining

discrimination claims. 

SIGNED this 11th day of March, 2010.

 /s/ 

RICHARD W. ROBERTS

United States District Judge