Return to Race or proceed to MedlockBrief 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

Table of Contents……………………………………………………………....i

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

ARGUMENT

I.        The Trial Judge Erred, as a Matter Of Law, and Abused her
Discretion, In Granting Summary to NIMA, where Decision on
Summary Judgment was not Ripe……………………………..…………..1

A.        Plaintiff Met the Substantive Requirements of Rule 56(f)……………1

B.        Rule 56(f) was Adopted to Prevent Premature Summary Judgment…3
C.        Judge Chasanow’s Decision Improperly Discriminates against
Civil Rights Plaintiffs…………………………………………………4

D.        Judge Chasanow Abused her Discretion by Refusing to
Reconsider her Grant of Summary Judgment or to Allow Medlock
to Cure the Perceived Procedural Defect, Ignoring the
Interests of Justice……………………………….………………………5

II.        NIMA did not Meet the Requirements for Consideration of its
Motion for Summary Judgment in an Employment
Discrimination Case……………………………………………………..7

III.        The Trial Court Erroneously Disregarded Plaintiff’s
Disparate Impact Claim…………………………………………………8

A.        The Trial Court Erroneously Determined, as a Matter of Law, that Medlock’s Allegations do not Constitute
a Case of Disparate Impact Discrimination……………………………………………………………8

B.        Medlock is not Procedurally Barred from Asserting his Disparate Impact Claim in Federal
Court…………………………………………..12


1.        NIMA may not Raise an Argument, for the First Time,
on Appeal…………………………………………………….12

2.        Medlock’s Internal Complaint Constituted
Sufficient Notice of Discrimination to Allow a Proper
Internal Investigation……………………………………………14

IV.        Summary Judgment was Improperly Granted, since the Facts are Vehemently
Disputed…………………………………………………..18

V.        The Trial Court Erroneously Made Findings of Fact, Usurping
the Province Of The Jury, Without Even The Benefit Of Discovery…..19

A.        The Trial Court Erroneously Determined, as a Matter of Fact,
that Medlock was a not a Career Ladder Employee……………………19

B.        The Trial Court Erroneously Determined, as a Matter of Fact,
that WORKFORCE 21 was Uniformly Applied to Persons
other than Medlock………………………………………………………23

C.        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……………………………………………………….25

VI.        The Trial Court Erred, as a Matter of Law, in Granting
Summary Judgment to the Agency on Medlock’s Retaliation Claim…...28

Conclusion……………………………………………………………………29

Signature of Counsel…………………………………………………………29

Certificate of Compliance……………………………………………………30

Certificate of Service…………………………………………………………31


          

TABLE OF AUTHORITIES

Tables of Cases
Arriola v. National Imagery and Mapping Agency, 01995813
(Dec. 11, 2001)…………………………………………………………28

Bryant v. Bell Atlantic MD, Inc. 288 F.3d 124 (4th Cir 2003)………………...15

Brown v. General Serv. Admin., 425 U.S. 820 (1976)………………………..13

Chernova v. Electronic Systems Services, Inc., 247 F. Supp. 2d 720
(D. Md. 2003)…………..…………………………………..1, 2, 3, 4, 5, 7

Conley v. Gibson, 355 U.S. 41, 45-46, 47-48 (1957)………………………….17

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

Griggs v. Duke Power, 401 U.S. 424 (1971)…………………………………..8

Harrods Limited v. Sixty Internet Domain Names, 302 F.3d 214
(4th Cir. 2002)…………………………………………………… 1, 2, 3, 5

Kim v. Nash Finch Co., 123 F.3d 1046, 1060 (8th Cir. 1997)…………………28

Pallante v. Department of Justice, EEOC Appeal No. 01A04996
(July 6, 2001)…………………………………………………………..26

Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000)………..26  

Thomas v. Washington County School Board, 915 F2d 922 (4th Cir. 1990)….13

Thompson v. Potomic Electic Power Co., 312 F.2d 645 (4th Cir. 2002)………11

Wards Cove v. Atonio, 490 U.S. 642 (1989)…………………………………..8

Zografov v. V.A. Medical Center, 779 F. 2d 967 (4th Cir. 1985)……………..13


LEGAL COMMENTARIES

Lex K. Larson, Employment Discrimination § 34.04 (2d ed.1995)…………..28  



APPELLANT’S REPLY TO APPELLEE’S BRIEF
I.        THE TRIAL JUDGE ERRED, AS A MATTER OF LAW, AND ABUSED HER DISCRETION, IN GRANTING
SUMMARY TO NIMA,  WHERE DECISION ON SUMMARY JUDGMENT WAS NOT RIPE

A.        Plaintiff Met the Substantive Requirements of Rule 56(f)

On page 53 of its Brief, NIMA argues that Judge Chasanow correctly granted summary judgment to NIMA,
without discovery, because Medlock’s counsel did not file, with his Opposition, a Rule 56(f) affidavit, specifying
the need for “additional” discovery.  As discussed in Medlock’s Brief, pages 40-42, Fourth Circuit considered
all of the relevant case law from other circuits, as well as authoritative legal commentaries, in the controlling
law of the Fourth Circuit, Harrods Limited v. Sixty Internet Domain Names, 302 F.3d 214 (4th Cir. 2002).  The
controlling published decision in the Federal District Court of Maryland, is Chernova v. Electronic Systems
Services, Inc., 247 F. Supp. 2d 720 (D. Md. 2003).  Chernova is a Title VII case that is identical to the case at
bar in all relevant respects.   
Chernova properly applied Harrods and denied the defendant’s Motion for Summary Judgment, pending the
outcome of discovery.  If the Fourth Circuit upholds Judge Chasanow’s decision in this case, it will effectively
overrule the published decision of Judge Motz.  
Chernova, decided by Judge Chasanow’s colleague in Federal District Court for the District of Maryland, and
former Chief Judge of the Court, was completely ignored by Judge Chasanow.  Chernova was also simply
ignored by NIMA in its Brief; yet it is the controlling published decision on this issue for the district court that
decided the case at bar.  Moreover, as discussed in Medlock’s Brief, pages 38, 43-44, 45, 49, 50, 54, Judge
Chasanow specifically held, contra to Chernova, that Harrods does not apply to Title VII/civil rights cases –
citing absolutely no authority for this conclusion.  
As set forth in pages 44-45 of Medlock’s Brief, 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 on pages 44-45 and 37-39 of Medlock’s Brief.  
In support of its argument, NIMA cites outdated case law from other circuits, to which neither this Court, nor the
Federal District Court for the District of Maryland, is bound.  NIMA’s citation of these cases is simply an
irrelevant distraction from the relevant, indeed, controlling, case law of this Circuit and of the Federal District
Court of Maryland; consequently, Medlock will not “take the bait,” and waste this Court’s time distinguishing
these cases from the case at bar.   
After a thorough assessment of the case law involving Rule 56(f) and attorney affidavits, the Fourth Circuit
issued a detailed, well-reasoned opinion, Harrods, summarizing the relevant law.  The Fourth Circuit adopted
and/or rejected decisions of other circuits as it deemed just and reasonable. Chernova properly applied the
law of the Fourth Circuit.
B.        Rule 56(f) was Adopted to Prevent Premature Summary Judgment
As discussed on pages 41-45 of Medlock’s Brief, Rule 56(f) was adopted to prevent premature summary
judgment, prior to full and complete discovery for the non-moving party.  Rule 56(f), on its face, does not
require an attorney affidavit identifying needed discovery.  The requirement was developed, through case law,
taking into account the particular circumstances of each case.  Those cases included circumstances in which
the plaintiff could not provide an affidavit from personal knowledge, stating facts precluding summary
judgment, but could well be determined by evidence, still in the possession of the defendant, that would be
obtained through discovery.  
The courts developed the attorney affidavit requirement to prevent premature summary judgment where the
non-moving party could not provide the affidavit.  Rule 56(f) would be turned “on its head,” along with the case
law permitting the attorney affidavit, if it is used as a rigid, procedural bar to any discovery, where the defendant
has filed a premature motion for summary judgment.       
C.        Judge Chasanow’s Decision Improperly Discriminates against
Civil Rights Plaintiffs

Ironically, if Judge Chasanow’s rationale were adopted, plaintiffs in civil rights cases, alleging that they have
been subjected to illegal discrimination, will be again discriminated against – by the courts from which they
seek justice – with respect to the protection of their procedural rights and access to the courts.  To hold that a
major corporation, armed with a battalion of law firms, is entitled to greater procedural rights than is the
average working person, who has lost his/her job, or been denied a promotion, is, again, to turn the scales of
justice and equity “on their heads.”  Judge Motz, in Chernova v. Electronic Systems Services, Inc., 247 F. Supp.
2d at 723, set the law in the Federal District Court for Maryland, refusing to allow this discriminatory result.    



D.        Judge Chasanow Abused her Discretion by Refusing to Reconsider her Grant of Summary Judgment or
to Allow Medlock to Cure the Perceived Procedural Defect, Ignoring the Interests of Justice

On pages 54-55 of its Brief, NIMA argues that, in its Reply to Plaintiff’s Opposition to Defendant’s Motion for
Summary Judgment, argued that a Rule 56(f) affidavit was required, and that Medlock could therefore have
filed a Surreply that included such an affidavit, or a motion for a continuance of the motion for summary
judgment, until discovery had taken place.  NIMA’s Brief at 55.
Nothing in the controlling case law, i.e., Harrod’s or Chernova, requires that the non-moving party attempt to
file a surreply to include a Rule 56(f) affidavit or to file a motion for a continuance.  In fact, most courts
discourage litigants from “over-litigating” by filing unnecessary paper, including duplicative arguments, to
burden the court.  
Moreover, NIMA’s argument came “after the fact,” to take advantage of the perceived procedural deficiency to
secure summary judgment and avoid litigating this case on its merits.  It was not an invitation to Medlock to
correct any perceived deficiency in the Opposition.  
There is no right to file a surreply.  Medlock would have had to file a motion to Judge Chasanow to grant him
leave to file a surreply.   In light of Judge Chasanow’s rigid refusal to consider Medlock’s Rule 56(f) affidavit in
his Motion for Reconsideration, there is no reason to believe that Judge Chasanow would have granted a
motion by Medlock to file a surreply.  Judge Chasanow refused to consider Medlock’s Rule 56(f) affidavit,
choosing instead, to deny Medlock the right to present the substance of his case in court, stating simply that
the affidavit was filed “overdue,”  (JA 109), since it was not filed with Medlock’s Opposition.  
Judge Chasanow never indicated, in any way, in either of her opinions, that Medlock should have filed a motion
to file a surreply, or that it would have been granted, or that any submission of a Rule 56(f) afidavit, other than
in the Opposition, would have been considered by the court, rather than rejected as “overdue.”  
The idea that a surreply or a motion for a continuance might have afforded Medlock a viable chance at having
his “day in court” – or at least a day of discovery – is a total fiction, argued by NIMA, with no such indication from
Judge Chasanow.  The facts indicate, instead, that Judge Chasanow, for whatever reason, had decided to
discard the judicial presumption in favor of disposing of cases on their merits and remove his case from the
court system.  In that process, Judge Chasanow abused her discretion and her opinion should be reversed.   


II.        NIMA DID NOT MEET THE REQUIREMENTS FOR CONSIDERATION OF ITS MOTION FOR SUMMARY
JUDGMENT IN AN EMPLOYMENT DISCRIMINATION CASE

NIMA argues that Judge Chasanow had sufficient factual information before her to grant summary to
Defendant; however, as discussed on pages 37-39 of Medlock’s Brief, the federal judiciary has repeatedly and
consistently disfavored summary judgment in employment discrimination cases, since motive and intent are
at issue.  Depositions, interrogatories, and document production are necessary to determine whether a Title
VII defendant’s stated reason for the challenged action is pre-textual.  Again, Judge Chasanow’s decision
directly conflicts Judge Motz’ decision in Chernova v. Electronic Systems Services, Inc., 247 F. Supp. 2d at 723.  
This case turns on a litigant’s right to discovery.  Discovery is the most basic right of a litigant to collect the
information needed to properly present his/her case.  There is no question that absolutely no discovery has
taken place in this case.  Without discovery, the non-movant is prevented from making the evidentiary showing
necessary under Rule 56(e) to defeat a motion for summary judgment.  
As Medlock argued in his Brief, pages 37-39, nearly every Title VII/ADEA/ADA plaintiff could be “cut off at the
knees” in litigation if the NIMA has not even answered the Complaint. 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.  Such a result would thwart Title VII law and the goal of equal employment opportunity.  
Certainly, it would not serve the interests of justice.        
III.        THE TRIAL COURT ERRONEOUSLY DISREGARDED PLAINTIFF’S DISPARATE IMPACT CLAIM

A.        The Trial Court Erroneously Determined, as a Matter of Law, that Medlock’s Allegations do not Constitute
a Case of Disparate Impact Discrimination

In its Brief, pages 40-42, NIMA argues that Judge Chasanow properly disregarded Medlock’s disparate impact
claim because it was actually a disparate treatment claim.  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/pay raise 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.
NIMA’s own internal investigation determined that the disproportionately White WORKFORCE 21
promotions/pay raises resulted, at least in part, from the disparate impact of the nepotism practiced by White
supervisors/selecting officials.  NIMA’s own report indicated that supervisors and/or deciding officials, who
were disproportionately White, assisted their friends and associates with in the application process.  
Applicants receiving “inside” assistance were therefore also disproportionately White.  The applicants whose
applications included the type of detailed job descriptions and “buzz words,” that promotion committees most
value, were disproportionately submitted by White applicants, who had received assistance in writing their
applications from their friends, White supervisors.  
The trial Court, and NIMA argue that the scenario described above does not constitute disparate impact, but is
simply another form of disparate treatment.   This is not so.  As this Court held in Thomas v. Washington
County School Board, 915 F.2d at 924 (4th Cir. 1990), the neutral criterion of nepotism may have a disparate
impact on African-Americans.  This is precisely the point in the case at bar.
Medlock has not alleged that Judy Schiebel assisted all of the White applicants on the list for promotions
because of their race.  Medlock has only alleged that Scheibel favored persons who were her friends and/or
colleagues.  Ms. Schiebel may well have engaged in the practice specifically identified by NIMA as occurring in
the WORKFORCE 21 promotion system, i.e. assisting her friends/associates in the preparation of their
applications.  Indeed, all four of Ms. Schiebel’s friends/associates from St. Louis – all White females -- were
selected for the pay raises/promotions.  These four White women were the only selectees of the twenty
candidates.
If Ms. Schiebel did assist her four friends/associate with their applications, this did not constitute disparate
treatment on the basis of race.  Discrimination in favor of her personal/professional friends, by assisting them
with their applications, would also disadvantage the White female applicants who were not her friends. Not all
Whites or all White females were advantaged by Ms. Schiebel’s actions; however, White females, as a group,
were disproportionately advantages by her actions, as compared to African-Americans.  Indeed, 100% of all of
the selectees were White females.  
Since absolutely no African-American applicants were in Ms. Schiebel’s “inner circle” of advantaged
friends/associates from St. Louis, this nepotism, if practiced by Ms. Schiebel, as alleged, constituted disparate
impact discrimination, and should have been so recognized by the district court.    
In fact, if it is true, as NIMA alleges, on page 30 of its Brief, that Medlock’s application for promotion was not
viewed favorably by the Committee because he did not provide details his work experience, but the four White
female selectees did, this fact would actually lend support to Medlock’s disparate impact theory.  If, due to
nepotism, the four White female friends/co-workers of Ms. Schiebel from St. Louis, all submitted applications
that were worded and formatted in a manner preferred by deciding officials, and Medlock’s application was
disfavored because it was less savvy, then his non-promotion may be a result of “form over substance.” If
Medlock was denied a competitive promotion because of “ presentation over merit,” and his presentation was
not comparable to four White females who were assisted by a selecting official, then he was not judged on his
work experience or performance.
Based on NIMA’s own internal investigation of its WORKFORCE 21 promotion system, it appears that the
“presentation” of promotion applications was influenced by nepotism and that nepotism practiced by White
supervisors in favor of their friends (disproportionately White) had a discriminatory impact on Medlock and
other African-Americans.  It is both illogical and unjust for an Agency to conclude, by its own admission, that a
policy discriminates against African-American employees, and then deny that an African-American employee
who was adversely affected by the discriminatory policy is not entitled to any remedy.     
The concept of nepotism as a facially neutral factor having a discriminatory impact on African-Americans is not
a new concept in the Fourth Circuit.  Thomas v. Washington County School Board, 915 F2d 922, 924 (4th Cir.
1990).   Medlock should be able to pursue this claim.
B.        Medlock is not Procedurally Barred from Asserting his Disparate Impact Claim in Federal Court

1.        NIMA may not Raise an Argument, for the First Time, on Appeal

On pages 40-42, NIMA argues that Judge Chasanow properly disregarded Medlock’s disparate impact claim
because he failed to specify a claim of “disparate impact,” in his internal EEO complaint with NIMA.  NIMA
never made this argument in its Motion for Summary Judgment and may not raise an argument for the first
time on appeal.  Thompson v. Potomac Electic Power Co., 312 F.3d 645, 651 n. 2 (4th Cir. 2002).  
As an afterthought, “grasping at straws,” NIMA improperly mentioned this argument in its Reply to Plaintiff’s
Opposition to Defendant’s Motion for Summary Judgment.  Since a Reply must be restricted to the arguments
made in the Opposition, NIMA was not entitled to raise new arguments in a Reply, to which Plaintiff had not
right to file a response.   The trial court, therefore, should not have considered this argument at all.  Indeed, in
her December 31, 2002 decision, Judge Chasanow did not address this argument in any way.  It is only in her
April 4, 2003 decision, denying Plaintiff’s Motion for Reconsideration of her December 31, 2002 decision, that
Judge Chasanow acknowledged NIMA’s argument, but even then, only in a footnote, with the qualifier that the
argument would “likely,” prevail.  (JA 114, n.3)  The Court cited only two cases, Zografov v. V.A. Medical Center,
779 F. 2d 967, 968-69 (4th Cir. 1985) and Brown v. General Serv. Admin., 425 U.S. 820 (1976), both stating the
rule that an EEO plaintiff must exhaust his/her administrative remedies, but neither of which bore any
resemblance to the present case on the facts.   
Since NIMA raised this argument only in its Reply, Medlock had no opportunity to respond to it.  Since Judge
Chasanow ignored it in her first decision, Medlock had no reason to address it in his Motion for
Reconsideration of the Court’s December 31, 2002 Decision.  Judge Chasanow’s footnoted dicta about a
“likely” result of a legal argument, in her April 4, 2003 decision is barely a comment, and certainly not a
holding.   The opinion does reflect any case analysis on the issue and offered Medlock no opportunity to
respond to the argument.  This issue was not litigated at the trial level and should not be litigated, for the first
time, on appeal.
The fact that NIMA did not even attempt to raise this bogus argument in its Motion for Summary Judgment
demonstrates that not even NIMA actually found it to be credible.  In any case, since it did not raise it in its
Motion for Summary Judgment, it should not be permitted to litigate it on appeal.
2.        Medlock’s Internal Complaint Constituted Sufficient Notice of Discrimination to Allow a Proper Internal
Investigation

NIMA’s argument that Medlock is barred from asserting a disparate impact theory of discrimination, as
opposed to disparate treatment, is completely without merit.  In his internal complaint, Medlock did not specify
that his discrimination complaint was based on “disparate treatment,” but NIMA does not argue that his
disparate treatment claim is barred.
Medlock is a non-attorney, who filed his charge without the benefit of counsel.  He cannot be expected to set
forth legal theories of discrimination, in the terms of the experts.  Indeed, no court has so held.   NIMA
concedes that Medlock was not required to use the term “disparate impact,” in his internal complaint (Brief at
44), yet, NIMA argues that he was obligated to file a complaint “suggests that he was asserting that a NIMA
policy or standard was facially neutral, yet had a discriminatory effect on minorities.”  (Brief at 44) Surely, if
Medlock were sophisticated enough in EEO law to be able to articulate this sentence, he would have been
able to articulate it as the disparate impact theory of discrimination under Title VII.  No layperson can be
expected, or should be required, to set forth such a sophisticated legal theory in his/her basic, internal charge,
prior to any investigation, and without the benefit of counsel.
As indicated by NIMA’s own internal investigation, WORKFORCE 21 had a disparate impact on African-
American employees.  When faced with promoting African-Americans or Whites, the deciding officials
disproportionately selected White employees for pay raises.  This outcome could have resulted from either
disparate treatment, disparate impact, or both.  It could be that, when faced with increasing the salary of a
White employee or an African-American employee, the deciding officials discriminated on the basis of race,
either consciously, or unconsciously, and favored the White employee.  
The cases cited by NIMA do not support its position at all.   For example, Bryant v. Bell Atlantic Md. Inc., 288 F.
3d 124 (4th Cir. 2003) reasonably held that, since only race discrimination was alleged at the administrative
level, the plaintiff could not, in federal court, litigate claims of sex, color, and retaliation, having failed to give the
Agency an opportunity to investigate a complaint on these bases.  In the present case, however, plaintiff
alleged discrimination on the bases of race, gender, age and disability in the denial of a specific promotion.  
Medlock even raised alternative arguments for his belief that he was discriminatorily denied this promotion: 1)
that he should have been assessed under career ladder criteria; and 2) that he was discriminated against
under the Pay Band (WORKFORCE 21) promotion system.
At the time that Medlock filed his complaint, and even when he received his ROI, General Clapper had not yet
released NIMA’s conclusions that WORKFORCE 21 had an adverse impact on African-American employees.  
NIMA had this information, from its own internal records, but Medlock had no access to them.  Indeed, even
now, Medlock has no access to this information since he was never afforded any discovery and NIMA has not
even answered the Complaint.  Medlock has only the public statements of General Clapper as the basis of his
“information and belief,” that he was discriminated against on the basis of disparate impact.  He is entitled to
discovery to obtain the information upon which General Clapper based that conclusion.
Even at the federal court level, where an attorney normally frames the claims and legal theories, a Complaint
is only required to be a notice pleading that allows the defendant to determine the facts forming the basis of
the complaint.          
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).  
Particularly where NIMA was investigating itself to determine whether WORKFORCE 21 had a disparate
impact on African-American employees, it is certainly disingenuous for NIMA to argue that it was deprived of
the opportunity to investigate Medlock’s claim as a disparate impact claim because he did not specify that he
would assert that theory or a disparate treatment theory.  
Plaintiff did inform NIMA investigators of the facts forming the basis of his disparate impact claim.  Medlock
explained that 100% of the selectees were White females that worked with Judy Schiebel, in St. Louis, and that
it was rumored that supervisors and panel members had helped them prepare their promotion pages.  (JA
200, 201-202, NIMA’s Brief, page 13)  Medlock also specifically stated that no one had offered him any help
preparing his package, even though his supervisor, Bobby Webster, was on the panel.  (Id.)  
If NIMA is requiring its complainants to distinguish between these legal theories at the internal EEO level, then
the complaint form should ask this question and set forth an explanation of each of the two theories.  It does
not.  NIMA cannot expect layperson employees to these sophisticated legal terms in the form on their own and
it is completely unreasonably to penalize them for not doing so.            
IV.        SUMMARY JUDGMENT WAS IMPROPERLY GRANTED, SINCE THE FACTS ARE VEHEMENTLY
DISPUTED

On page 54 of its Brief, NIMA claims that Medlock has “made much ado about nothing,” by pointing out that
NIMA did not submit a Statement of Undisputed Facts.  It is true that the Local Rules for the Federal District
Court of Maryland doe not require a Statement of Undisputed Facts; however, NIMA failed to mention that
Medlock raised this issue along with pointing out that NIMA also failed to provide a Statement of Disputed
Facts, in response to Medlock’s Statement of Undisputed Facts.   The parties’ versions of the facts clearly
contradict each other.  NIMA avoided highlighting the disputed facts because summary judgment is
inappropriate where the facts are disputed.  
As discussed in Medlock’s Brief, page 19, 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.”  
The contradictory Statement of Facts asserted by each party clearly revealed that the facts were disputed.  The
case should therefore have proceeded to discovery.  Medlock should have been allowed an opportunity to
obtain the evidence, exclusively held by NIMA, to carry his burden of producing enough evidence to allow a jury
to conclude that he was denied the promotion due to discrimination.  If, after discovery, Medlock could not
produce such evidence, NIMA would certainly be entitled to file another motion for summary judgment;
however, summary judgment prior to discovery, in this case, was completely premature and inappropriate.   
IV.        THE TRIAL COURT ERRONEOUSLY MADE FINDINGS OF FACT, USURPING THE PROVINCE OF THE
JURY, WITHOUT EVEN THE BENEFIT OF DISCOVERY

A.        The Trial Court Erroneously Determined, as a Matter of Fact, that Medlock was a not a Career Ladder
Employee

On pages 21-23 of its Brief, NIMA claims that Medlock’s position was not a career ladder position.  Whether
Medlock was a “GS,” or career ladder employee, which would entitle him to be considered for a promotion, on
his own merit, within the position that he already held.  Under the career ladder promotion system, an
employee is evaluated for a raise based solely upon his/her own work performance of his/her own job duties.  
WORKFORCE 21 (now abandoned) was not a system in which similarly situated employees competed for a
promotion to a particular job.  WORKFORCE 21, as it existed when Medlock applied for his promotion,
grouped all employees in a department, such as Human Resources, eligible for a promotion together into
“pay bands,” irrespective of job title, job description, job duties, and/or the geographic location of the worksite.  
The four White female selectees who were promoted were not selected to perform the job duties of “career
intern,” nor were they competing with Medlock, in any way, for a job.  They were only competing with Medlock for
the right to obtain a pay raise, within the job titles and descriptions that they already held.  WORKFORCE 21, in
effect, compared “apples and oranges,” by deciding, between applicants with unrelated job duties and job
titles, who would receive pay raises.  
If Medlock was classified as a GS/career ladder employee, as the career intern vacancy announcement
indicates, he should not have been required to compete with persons outside of his job description, and even
state, for a pay raise within his own job description and title.
Significantly, Mattie Ligon, the Chair of the panel that interviewed candidates for the career intern position,
specifically stated that she believed that the career internship was a career ladder position.  (JA 261)  If the
Chair of the Committee believed that it was a career ladder position, there must have been a credible basis for
that belief.  Presumably, Ms. Ligon conveyed this belief to candidates for the position.  Medlock, as a candidate
who interviewed with Ms. Ligon, had every reason to believe that he was accepting a career ladder position
and that he would be promoted in accordance with the career ladder promotion system.
NIMA offered, as proof, a December 5, 1999 the “SF-50,” or personnel action designates Medlock as a pay
band “01” position; NIMA has not provided the SF-50 that converted him from his GS-6 position to Pay Band I,
which would indicate, at what date he was still as GS-6 employee.  Medlock was a GS-6 employee beyond his
starting date as a career intern, which was October 25, 1999, not December 5, 1999.  (JA 344-345, 385)  Even
though he has been denied discovery, Medlock has been able to secure his November 21, 1999 SF-50 and
will, under separate cover, move this Court to accept it as an exhibit to this Reply in order to demonstrate the
need for discovery in that NIMA has all relevant documents in its possession to determine whether Medlock
was a GS-6 or Pay Band I employee when he accepted the career intent position in Human Resources, where
he had already been working as a management assistant for a year.  
Medlock included, as exhibits, vacancy announcements to demonstrate that the career intern position was
advertised as a “GS,” or “career ladder” position.  Medlock’s Brief at 7-8; JA 375-377)  On page 4 of its Brief,
NIMA admits that the career intern position was advertised as a “GS-5 or GS-7 or GS-9 level.”   NIMA then
states that it sent out an e-mail, to all NIMA employees, again advertising the position at these GS-levels, but
adding, without explanation or emphasis, the words, “which do not provide promotion rights.”  NIMA’s Brief,
page 4.  NIMA argues that these additional words “expressly indicated that the vacancies were not under the
competitive, career ladder promotion structure.”  Clearly, this e-mail does not “expressly” say anything about
“career ladder” or “non-competitive” promotions.  Without an explanation, this sentence is open to numerous
interpretations.  
In addition, NIMA does not even claim that these words appeared on the actual vacancy announcement. An e-
mail is not a substitute for formally amending a vacancy announcement that employees have relied upon in
applying for, accepting and declining jobs, basing their futures, and the welfare of their families on these
representations.
Judge Chasanow’s acceptance of NIMA’s factual assertion that Medlock was a WORKFORCE 21 employee,
rather than a GS, or career ladder employee, at the time that he accepted the position and/or was placed in the
position of career inteen, is factual error.  Indeed, the documentation, provided by NIMA itself, clearly
demonstrates that Medlock was appointed to the position of career intern, as a “GS-6,” rather than a
WORKFORCE 21 employee.  The undisputed evidence of record provided by NIMA, even absent discovery,
requires such a finding of fact.  
Even if the court declined, and was not obligated, to make the factual determination that Medlock was, in fact,
appointed to the position of career intern, as a “GS-6,” rather than a WORKFORCE 21 employee, the case
should proceed to discovery and the trier of fact, the jury, at trial, with the benefit of the testimony of Medlock
and NIMA officials, should determine whether Medlock was a career ladder employee.  At minimum, Medlock
should have been permitted discovery, including the opportunity to depose NIMA officials, before the court
made a determination that Medlock would not be able to carry his burden at trial.
B.        The Trial Court Erroneously Determined, as a Matter of Fact, that WORKFORCE 21 was Uniformly
Applied to Persons Other than Medlock

On page 24-26 of its Brief, NIMA asserts that there were no exceptions to the WORKFORCE 21 promotion
system, except those employees “grandfathered” into career ladder promotions.  As set forth in his Brief,
pages 56-57, Medlock alleged, upon information and belief, that 32 persons were promoted as career ladder
employees after the implementation of WORKFORCE 21.  Medlock informed the trial court that discovery was
needed to obtain documents solely in the possession of the Agency, to confirm this belief.  He is also entitled
to depose the Agency’s officials on this issue.  
On page 26, fn. 2 of its Brief, NIMA correctly points out that the list of 32 persons that Medlock believes
represents exceptions made to WORKFORCE 21 promotions was not “submitted” to NIMA or the trial court;  
however, the document is in the possession of NIMA, and was provided to Medlock by NIMA, pursuant to FOIA
(the Freedom of Information Act).   NIMA did not include the FOIA document in its Report of Investigation, or as
an exhibit to any of its pleadings.  Medlock referenced the document in his Complaint,  38, and his Opposition
to Defendant’s Motion for Summary Judgment.
NIMA redacted the names of the persons on this list.  The list does indicate that the redacted names include
32 persons.  Since the names were redacted, the FOIA document provided to Medlock has limited probative
value on its own.  Medlock therefore did not “submit” it as an exhibit, but alleged the exceptions based upon
his “information and belief.”  In response to NIMA’s claim that it has no knowledge of this document, and that
Medlock would not be able to prove, even after discovery, that there were exceptions to WORKFORCE 21
promotions, Medlock will file a motion, under separate cover, pursuant to Local Rule 28(b), to submit this FOIA
NIMA document to the Court as an to this Reply, after consulting with opposing counsel to ascertain whether
NIMA consents or objects.  
In discovery, Medlock would have a right to the un-redacted version of this FOIA document, with the names of
the employees,  and would be able to depose NIMA officials regarding the promotions of these named
individuals.  Judge Chasanow’s grant of summary judgment, without discovery, prevented Medlock from
obtaining these names and determining whether there were exceptions to the WORKFORCE 21 promotion
system, and if so, whether the circumstances applied to these promotions made them similarly situated to
Medlock.
C.        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

On page 32 of its Brief, NIMA contends that there is no evidence of discriminatory motive by Bobby Webster.  
Indeed, on page 32 of its Brief, NIMA even describes Webster as being “supportive” of Medlock’s candidacy.  
This description of Webster is simply ludicrous.  It is undisputed that Webster rated Medlock “4” out a possible
score of “20.”  (Medlock’s Brief, page 25)  Webster’s score of Medlock was the lowest of all the panel
members’ rating of him.  Webster had also given Medlock a performance evaluation of “successful” (in
conjuntion with Ira Leifer) as opposed to his previous evaluation of “excellent.”   Webster clearly did not support
Medlock for a pay raise/promotion.  Indeed, his scoring of Medlock demonstrates that he wanted anyone
except Medlock -- the only African-American male applicant – to be awarded one of the four available pay raise
awards.  
Racial discrimination is evidenced, not just by overt racial slurs, but also by the treatment that African-
Americans receive, as compared to Whites, as recognized by the Supreme Court in Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133 (2000)  Medlock has established a prima facie case of discrimination
and is entitled to discovery to collect evidence that NIMA’s stated, non-discriminatory reason for his non-
promotion is pre-textual.
Judge Chasanow 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).  The additional problem with Judge Chasanow’s conclusion, is that the four selectees and
Medlock were not competing for the same position, nor did they have the same job duties.  As discussed in
Section IV, A, on pages 19-21, above, the candidates were not competing for a particular job, but only for a pay
raise within their own, unrelated, job descriptions.
NIMA also claimed that, since there were four African-American female members of the nine-member
promotion panel, there could have been no racial discrimination against Medlock.  (NIMA’s Brief, pages 34-
35)  Because there has been no discovery, there is absolutely no evidence in the record regarding how much
deference the African-American panel members afforded Webster, who was Medlock’s supervisor, and/or
Schiebel, who was the supervisor of all of the White female selectees.  Certainly, it is reasonable to expect that
panel members, unaware of any discriminatory motive, would afford substantial weight to the opinions of other
panel members who actually supervise candidates.  
These four African-American panel members may very well have objectively reviewed the applications.  If,
however, the four White female selectees did, in fact, submit the most detailed and appropriate written
applications, because they received assistance from Judy Schiebel, then these panel members, unwittingly,
were part of the discriminatory process.  Even if the African-American panel members based their objective
assessments on the neutral criteria of applications and supervisor evaluations, if these applications and
evaluations were tainted by nepotism, by Schiebel, and/or racism by Bobby Webster, their decisions were
infected with impermissible racial discrimination, based both on disparate treatment and disparate impact.    
IV.        THE TRIAL COURT ERRED, AS A MATTER OF LAW, IN GRANTING SUMMARY JUDGMENT TO THE
AGENCY ON MEDLOCK’S RETALIATION CLAIM

As discussed on pages 31-35 of Medlock’s Brief, courts and authoritative legal commentators have
recognized that retaliation, under Title VII, actionable “adverse actions” may take the form of unjust
performance evaluations and other terms and conditions of employment.  Kim v. Nash Finch Co., 123 F.3d
1046, 1060 (8th Cir. 1997); Pallante v. Department of Justice, EEOC Appeal No. 01A04996 (July 6, 2001);
Arriola v. National Imagery and Mapping Agency, 01995813 (Dec. 11, 2001); Lex K. Larson, Employment
Discrimination § 34.04, at 34-57 to 34-62 (2d ed.1995).  
The retaliation provision of Title VII was enacted to protect employees against negative consequences in their
employment for reporting Title VII violations.  Any action that discourages employees from making good faith
Title VII claims thwarts the purposes of Title VII and its enforcement.  There may well be inconsistencies
between the circuits, and even within the circuits, as to what constitutes an adverse action, for purposes of
retaliation under Title VII.  Medlock urges the Fourth Circuit to adopt the most current, reasonable and just case
law, prohibiting any retaliatory action by an employer that does, or would reasonably, discourage an employee
from asserting his/her rights under Title VII.  
CONCLUSION

The interests of justice are not furthered by cutting off Medlock’s opportunity to develop and present his case
on the merits.  For the foregoing reasons, Plaintiff respectfully requests that this Court reverse the decision of
the trial court granting summary judgment to NIMA.

          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) 642-0208 facsimile
dvmartinlaw@yahoo.com
Law Offices of  Dawn V.  Martin
Medlock v. Rumsfeld
Medlock Reply Brief, on Appeal before Fourth Circuit