BERYL A. HOWELL, District Judge.
The plaintiff, Jewell Ryan-White, brings this employment discrimination action against the defendant, Acting United States Secretary of Commerce Rebecca Blank, in her official capacity pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. The plaintiff alleges that the defendant agency retaliated against her for making contact with the Equal Employment Office ("EEO"), which is statutorily protected activity. Pending before the Court is the defendant's motion to dismiss or, in the alternative, motion for summary judgment.
In October 2008, the plaintiff was hired by the defendant as a Partnership Data Services Coordinator ("Partnership Coordinator") with the Philadelphia Regional Census Center to perform work related to the 2010 Census. Compl. ¶ 8, ECF No. 1. The plaintiff's tenure as a Partnership Coordinator was pursuant to a "Mixed Tour work schedule," under which "Census employees could be changed from full-time, part-time, and intermittent schedules to accommodate fluctuating workloads and duty assignments." Id. ¶ 19. Under the terms of the plaintiff's 2008 initial appointment, her employment "was Not to Exceed (`NTE') two years or until September 30, 2010," though "this initial term could be extended for an additional two years or until September 30, 2012." Id. During the period of her employment, the plaintiff was supervised by three individuals: Fernando Armstrong (Regional Director of the Philadelphia office), Theodore Roman (Deputy Regional Director of the Philadelphia office), and Allison Assanah-Carroll (Assistant Regional Census Manager). See id. ¶¶ 6-7, 12.
On October 14, 2009, after beginning work with the Philadelphia Census office,
On June 3, 2010, the plaintiff claims that "Mr. Armstrong and Mr. Roman issued a Retention of Staff list," which included the plaintiff's name as "one of the employees selected to be retained by the [Commerce Department] through at least September 2010." Id. ¶ 18. Additionally, the plaintiff alleges that she was "assigned an important project" on June 15, 2010 that "upon information and belief, would have resulted in the extension of her appointment." Id. ¶¶ 21-22. Specifically, the plaintiff says that she was selected to the "Integrated Partner Contact Database (`IPCD') project," which "reconcile[d] Partner contact information into a central database to ensure accurate and complete information for thousands of Partners across the United States." Id. ¶ 22. The plaintiff also claims that, on July 1, 2010, she was assigned "to the Partnership Debriefing Conference to be held in Seattle, Washington from August 15-20, 2010," which "was a core forum intended to identify processes utilized during the most current Decennial Census, highlight best practices, and begin preparation for the next Decennial Census." Id. ¶ 24.
On July 7, 2010, however, the plaintiff alleges that "Mr. Roman directed Ms. Assanah-Carroll to notify [the plaintiff] that she was being converted from regular Full-Time Partnership Coordinator status to Intermittent status effective July 30, 2010." Id. ¶ 25. According to the plaintiff, the conversion to intermittent status "had a significant impact on the terms and conditions of her employment" because she "went from being a full-time employee with benefits to a non-paid employee with no benefits and no work." Id. ¶ 29. In other words, the plaintiff's "employment effectively terminated on the date her status was converted to Intermittent." Id. The plaintiff claims that "[t]he [Commerce Department] and the responsible management officials, including Mr. Roman and Mr. Armstrong, were aware of [the plaintiff's] protected activities," id. ¶ 56, and therefore the plaintiff alleges that the defendant "converted [the plaintiff's] status to Intermittent on July 7, 2010, effective July 30, 2010, in retaliation for her protected activities," id. ¶ 57.
The plaintiff filed her Complaint in the instant action on February 2, 2012, alleging three causes of action. The first two causes of action allege that the defendant discriminated against her on the basis of sex and race by denying her request to correct a pay disparity. See Compl. ¶¶ 33-52. These two causes of action, however, have been voluntarily dismissed by the plaintiff and are no longer at issue in this case. See Pl.'s Opp'n to Def.'s Mot. to Dismiss or, in the Alternative, Mot. for Summ. J. ("Pl.'s Opp'n") at 4 n. 1, ECF No. 13. The third cause of action alleges that the defendant retaliated against the
To survive a motion to dismiss under Rule 12(b)(6), a plaintiff need only plead "enough facts to state a claim to relief that is plausible on its face" and to "nudge[] [his or her] claims across the line from conceivable to plausible." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see also FED.R.CIV.P. 12(b)(6). "[A] complaint [does not] suffice if it tenders `naked assertion[s]' devoid of `further factual enhancement.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (alteration in original) (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). Instead, the complaint must plead facts that are more than "`merely consistent with' a defendant's liability." Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). "[T]he plaintiff [must] plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.; accord Rudder v. Williams, 666 F.3d 790, 794 (D.C.Cir.2012). The Court "must assume all the allegations in the complaint are true (even if doubtful in fact) ... [and] must give the plaintiff the benefit of all reasonable inferences derived from the facts alleged." Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C.Cir.2008) (citations and internal quotation marks omitted).
The Federal Rules of Civil Procedure provide that if "matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment," and if a motion is so converted, "[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." FED.R.CIV.P. 12(d). "The decision to convert a motion to dismiss into a motion for summary judgment is committed to the sound discretion of the trial court." Flynn v. Tiede-Zoeller, Inc., 412 F.Supp.2d 46, 50 (D.D.C.2006). "In exercising this discretion, the `reviewing court must assure itself that summary judgment treatment would be fair to both parties.'" Bowe-Connor v. Shinseki, 845 F.Supp.2d 77, 85-86 (D.D.C.2012) (quoting Tele-Commc'ns of Key W., Inc. v. United States, 757 F.2d 1330, 1334 (D.C.Cir.1985)). Therefore, "[i]n converting the motion, district courts must provide the parties with notice and an opportunity to present evidence in support of their respective positions." Kim v. United States, 632 F.3d 713, 719 (D.C.Cir.2011).
If extra-pleading evidence "is comprehensive and will enable a rational determination of a summary judgment motion," a district court will be more likely to convert to summary judgment, but "when it is scanty, incomplete, or inconclusive," the district court is more likely to decline to convert to summary judgment and permit
"Title VII's anti-retaliation provision makes it unlawful for an employer `to discriminate against [an] employee ... because he has opposed any practice' made unlawful by Title VII or `has made a charge, testified, assisted, or participated in' a Title VII proceeding." Steele v. Schafer, 535 F.3d 689, 695 (D.C.Cir.2008) (quoting 42 U.S.C. § 2000e-3(a)). The Court assesses Title VII retaliation claims under the burden-shifting framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). First, the plaintiff must prove a prima facie case of retaliation: "(1) he engaged in protected activity; (2) he was subjected to an adverse employment action; and (3) there was a causal link between the protected activity and the adverse action." Hamilton v. Geithner, 666 F.3d 1344, 1357 (D.C.Cir.2012) (internal quotation marks omitted). If the prima facie case is made, the "burden shifts to the defendant to prove that `the adverse employment actions were taken for a legitimate, nondiscriminatory reason.'" Youssef v. FBI, 687 F.3d 397, 402 (D.C.Cir. 2012) (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)). "[A] plaintiff alleging retaliation faces a low burden at the motion to dismiss stage and is not required to show that defendant's proffered reasons for its actions are pretext." Munro v. LaHood, 839 F.Supp.2d 354, 364 (D.D.C. 2012).
Notably, at the motion-to-dismiss stage, a Title VII plaintiff is not generally required to plead facts that specifically rebut a defendant's legitimate, nondiscriminatory reasons or establish discrimination vel non. Under the McDonnell Douglas burden-shifting framework:
Vickers v. Powell, 493 F.3d 186, 195 (D.C.Cir.2007) (quoting Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1289 (D.C.Cir. 1998)); accord Jones v. Bernanke, 557 F.3d 670, 678 (D.C.Cir.2009). In other words, once an employer produces a legitimate, nondiscriminatory reason for its action,
In urging for dismissal of this case, the defendant makes a number of arguments, many of which focus on a summary judgment standard. See, e.g., Def.'s Mem. in Supp. Mot. to Dismiss or in the Alternative for Summ. J. ("Def.'s Mem.") at 23-32, ECF No. 8. "As the Supreme Court and this Circuit have repeatedly held, summary judgment is ordinarily appropriate only after the plaintiff has been given an adequate opportunity to conduct discovery." McWay v. LaHood, 269 F.R.D. 35, 39 (D.D.C.2010); accord Convertino v. U.S. Dep't of Justice, 684 F.3d 93, 99 (D.C.Cir.2012) ("[S]ummary judgment is premature unless all parties have `had a full opportunity to conduct discovery.'" (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986))); Americable Int'l v. Dep't of Navy, 129 F.3d 1271, 1274 (D.C.Cir.1997) ("[S]ummary judgment ordinarily `is proper only after the plaintiff has been given adequate time for discovery.'" (quoting First Chi. Int'l v. United Exch. Co., 836 F.2d 1375, 1380 (D.C.Cir. 1988))). The exercise of discretion under Rule 12(d) to convert a motion to dismiss to a motion for summary judgment is usually only appropriate where (1) the evidence submitted is sufficiently comprehensive to conclude that further discovery would be unnecessary; and (2) the non-moving party has not been unfairly disadvantaged by being unable to access the sources of proof necessary to create a genuine issue of material fact. See, e.g., Fed. R.Civ.P. 12(d) ("All parties must be given a reasonable opportunity to present all
The plaintiff in this case has, in fact, requested discovery before consideration of summary judgment because her "ability to prove pretext is heavily dependent upon witness testimony, credibility issues and other evidence requiring discovery." See, e.g., Pl.'s Opp'n at 11. Furthermore, the plaintiff has submitted a sworn declaration, which states that "there is a myriad of relevant and discoverable documents that have not been obtained by the Plaintiff" that "would be necessary in order for Plaintiff to adequately and fully respond to Defendant's Motion." Rule 56(f) Aff. in Supp. Pl.'s Opp'n to Def.'s Mot. to Dismiss or, in the Alternative, Mot. for Summ. J. ("Pl.'s Rule 56(f) Aff.") ¶ 3, ECF No. 13-2.
In support of the motion to dismiss, the defendant makes two arguments. First, the defendant argues that "Plaintiff was not subjected to an adverse employment action." Def.'s Mem. at 2. Second, the defendant argues that "Plaintiff does not allege and cannot show the existence of a causal nexus between any of the alleged retaliatory actions and her prior EEO activity." Id. at 27. Neither of these arguments,
As discussed above, being subjected to an adverse employment action is an essential element of a retaliation claim under Title VII. See, e.g., Hamilton, 666 F.3d at 1357. The defendant argues that the plaintiff has failed to plead an adverse employment action in the instant case "because her employment was never terminated. Rather, as an employee working on a temporary, short-term operation, she was placed on intermittent status once the workload had decreased as anticipated." See Def.'s Mem. at 23. The defendant goes on to argue that "written within the very terms and conditions of employment was the possibility that employees like Plaintiff may be placed on intermittent status or released based on the needs of the Agency." Id. at 23-24. The plaintiff opposes this argument by contending that it "is a red herring that proves nothing" because the plaintiff's "status is essentially no different than any other at-will employee or federal government worker." Pl.'s Opp'n at 24.
Title VII's anti-retaliation provision "sweeps more broadly" than its substantive antidiscrimination provision. See Gaujacq v. EDF, Inc., 601 F.3d 565, 577 (D.C.Cir.2010); see also Baird v. Gotbaum, 662 F.3d 1246, 1250 (D.C.Cir.2011) (noting that "the concept of adverse action is somewhat broader" in retaliation claims); Baloch v. Kempthorne, 550 F.3d 1191, 1198 n. 4 (D.C.Cir.2008) ("`Adverse actions' in the retaliation context encompass a broader sweep of actions than those in a pure discrimination claim."). "[T]he antiretaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment." Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). This is because "[a]n employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace." Id. at 63, 126 S.Ct. 2405. Instead, the anti-retaliation provision "prohibits any employer action that `well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.'" Thompson v. N. Am. Stainless, LP, ___ U.S. ___, 131 S.Ct. 863, 868, 178 L.Ed.2d 694 (2011) (quoting Burlington Northern, 548 U.S. at 68, 126 S.Ct. 2405).
In light of Supreme Court's standard for adverse employment actions in retaliation claims, set forth in Burlington Northern, the Court notes at the outset that the defendant has invoked the wrong standard in arguing that the plaintiff failed to allege an adverse employment action in this case. The defendant relies principally on the standard articulated in Brown v. Brody, 199 F.3d 446 (D.C.Cir.1999). In Brown, the D.C. Circuit held that, in order to allege an adverse employment action for purposes of a Title VII retaliation claim, a plaintiff must allege some action that results in "materially adverse consequences affecting the terms, conditions, or privileges of her employment or her future employment opportunities." Brown, 199 F.3d at 457. In Burlington Northern, however, "the [Supreme] Court expressly rejected [this] standard for retaliation claims." See Steele, 535 F.3d at 695. Therefore, the defendant's reliance on Brown is mistaken.
Furthermore, the defendant's contention — that notice to the plaintiff of "the possibility that employees like Plaintiff may be placed on intermittent status or released based on the needs of the Agency"
The plaintiff's employment status in this case was undisputedly temporary, but merely because the plaintiff was a temporary employee does not mean that placing her on intermittent status, prior to the Not to Exceed ("NTE") date specified in her employment agreement, was not an adverse employment action.
The defendant also contends, see Def.'s Mem. at 27-29, that the plaintiff has failed to allege that "there was a causal link between the protected activity and the adverse action," see Hamilton, 666 F.3d at 1357. In support of this argument, the defendant makes three related points. First, the defendant contends that too much time elapsed between the plaintiff's protected activity and the adverse employment action for a causal link to be established. See Def.'s Mem. at 27-28. Second, the defendant argues that "downsizing was already being considered by Census Bureau Headquarters before the Plaintiff's EEO contact," which the defendant says further severs any potential causal link. See id. at 28. Finally, the defendant argues that the plaintiff has failed to allege "that either Mr. Roman or Mr. Armstrong knew about her previous protected activity at the time of the decision to convert her employment status," and thus there could not have been any causal connection. Id. at 27.
As to the defendant's first point regarding the amount of time that elapsed between the protected activity and the adverse employment action, the D.C. Circuit has held that "a close temporal relationship may alone establish the required causal connection," Singletary v. District of Columbia, 351 F.3d 519, 525 (D.C.Cir. 2003), though the word "close" has defied any precise definition. "Although the Supreme Court has cited circuit decisions suggesting that in some instances a three-month period between the protected activity and the adverse employment action may, standing alone, be too lengthy to raise an inference of causation," the D.C. Circuit has recognized that "neither the Supreme Court nor [the D.C. Circuit] has established a bright-line three month rule." Hamilton, 666 F.3d at 1357-58. In the instant case, the plaintiff alleges that she first made contact with the EEO on March 23, 2010, she filed a formal complaint with the EEO on April 26, 2010, and the EEO accepted her claims on June 11, 2010. See Compl. ¶¶ 17, 25. Additionally, the plaintiff alleges that she was notified of the adverse employment action on July 7, 2010, and the change in her employment status became effective July 30, 2010. See id. ¶ 25. In evaluating "whether evidence of temporal proximity satisfies the causation element," courts are to consider not just a plaintiff's initial statutorily protected activity but also "later protected activity." Hamilton, 666 F.3d at 1358. Measuring from the time the plaintiff allegedly submitted her formal complaint, the period between her protected activity and the decision to convert her to intermittent status was just under two and one half months. That relatively short amount of time has recently been held by the D.C. Circuit to be sufficiently "close" to establish temporal proximity at the motion-to-dismiss stage, see id. at 1358-59, and therefore the Court concludes that the plaintiff's allegations in this case are sufficient to establish a "close temporal relationship," see Singletary, 351 F.3d at 525.
The defendant's other two arguments are likewise unavailing at the motion-to-dismiss stage. First, the D.C. Circuit has held that a plaintiff is not required to allege that a specific supervisor had knowledge of protected activity to plead a
Second, the defendant's argument that the agency had decided to convert the plaintiff to intermittent status before she made contact with the EEO raises a factual question, not a deficiency in the plaintiff's pleading, and therefore it cannot be a basis for dismissing the plaintiff's Complaint at this stage of the litigation. See, e.g., Abigail Alliance for Better Access to Developmental Drugs v. von Eschenbach, 495 F.3d 695, 723 (D.C.Cir.2007) (observing that "a factual question ... is not properly resolved at the motion-to-dismiss stage when all reasonable inferences must be drawn to the plaintiff's benefit"); see also supra Part III.A (declining to convert motion to dismiss into motion for summary judgment). Furthermore, the plaintiff's Complaint alleges facts that, if proven, would call the defendant's legitimate, nondiscriminatory explanations into question. Most notably, the plaintiff alleges that Messrs. Armstrong and Roman placed her on a staff retention list on June 3, 2010, indicating that she would be retained "through at least September 2010." See Compl. ¶ 18. Additionally, the plaintiff alleges that, not only was she assigned to work on the "labor intensive" IPCD project on June 15, 2010 (less than a month before being notified of her conversion to intermittent status), but she also alleges that "Mr. Roman and Mr. Armstrong actually extended the appointment of other Partnership Coordinators and IPCD project staff beyond the initial two (2) year term." Id. ¶ 27. These factual allegations persuade the Court that the plaintiff's theory of pretext is "plausible on its face," and therefore the allegations are sufficient to survive a motion to dismiss. See Twombly, 550 U.S. at 570, 127 S.Ct. 1955.
For the reasons discussed above, the Court concludes that the plaintiff has adequately pleaded a prima facie Title VII retaliation claim, and therefore the defendant's motion to dismiss the Complaint is denied.
An appropriate Order accompanies this Memorandum Opinion.
