Ho v. Barr ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
TOMMY HO,
Plaintiff,
Civ. Action No. 20-912 (EGS)
v.
MERRICK B. GARLAND, in his
official capacity as Attorney
General of the United States,
U.S. Department of Justice,1
Defendant.
MEMORANDUM OPINION
I. Introduction
Plaintiff Tommy Ho (“Mr. Ho” or “Plaintiff”) brings this
lawsuit against Merrick B. Garland, in his official capacity as
Attorney General of the United States, U.S. Department of
Justice (the “Government” or “Defendant”), alleging race
discrimination and retaliation in violation of Title VII of the
Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et
seq., after Defendant reassigned Mr. Ho to the Joint Support
Operations Center (“JSOC”) and denied his transfer to the Las
Vegas Field Office (“LVFO”). See generally Compl., ECF No. 1.
1 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure,
the current Attorney General of the United States, Merrick
Garland, is substituted as Defendant for the former Attorney
General of the United States, William Barr. See Fed. R. Civ. P.
25(d).
1
Pending before the Court is Defendant’s Motion to Dismiss
or, in the Alternative, Motion for Summary Judgment. See Def.’s
Mot. Dismiss or, in the Alternative, Mot. Summ. J., ECF No. 13;
Mem. P. & A. Def.’s Mot. Dismiss or, in the Alternative, Mot.
Summ. J. (“Def.’s Mot.”), ECF No. 13-1. Mr. Ho opposes the
motion and moves for discovery pursuant to Federal Rule of Civil
Procedure 56(d). See Pl.’s Opp’n Def.’s Mot. Dismiss or, in the
Alternative, Mot. Summ. J., ECF No. 16; Mem. P. & A. Pl.’s Opp’n
Def.’s Mot. Dismiss or, in the Alternative, Mot. Summ. J.
(“Pl.’s Opp’n”), ECF No. 16-1; Pl.’s Mot. Under Rule 56(d), ECF
No. 17; Mem. P. & A. Pl.’s Mot. Under Rule 56(d) (“Pl.’s Mot.”),
ECF No. 17-1.
Upon consideration of the motions, oppositions, replies
thereto, and the applicable law, the Court GRANTS IN PART and
DENIES IN PART Defendant’s Motion to Dismiss or, in the
Alternative, for Summary Judgment, ECF No. 13; and GRANTS IN
PART and DENIES IN PART Mr. Ho’s Motion Under Rule 56(d), ECF
No. 17.
II. Background
A. Factual
Mr. Ho has worked for the Bureau of Alcohol, Tobacco,
Firearms and Explosives (“ATF”) since April 1999. Compl., ECF
No. 1 at 3 ¶ 10. In August 2012, he accepted a position within
2
the Special Operations Division (“SOD”), Technical Operations
Branch in the Unmanned Aircraft Systems (“UAS”) Program at ATF
Headquarters (“HQ”). Id. He had committed to that position for
three years, see id.; but the SOD suspended the UAS Program in
June 2014, id. at 3 ¶ 11. Mr. Ho was then involuntarily
transferred to the Washington Field Division (“WFD”). Id. While
at the WFD, he held the position of Senior Operations Officer
(“SOO”). Id. at 3 ¶ 12.
1. Mr. Ho’s Time at the WFD
While he worked at the WFD, Mr. Ho was supervised by
Special Agent in Charge (“SAC”) Smith (“SAC Smith” or “Mr.
Smith”). Id. at 4 ¶ 15. Soon after he was involuntarily
transferred to the WFD, Mr. Ho met with his supervisor. Id. at 4
¶ 16. Mr. Smith spoke with Mr. Ho about his job responsibilities
as a Senior Operations Officer. See T. Ho Dep. Tr. at 86:2-12.3.
At some point, Mr. Smith turned the conversation to discuss his
experience supervising another agent, Special Agent (“SA”) Casey
Xiong (“SA Xiong” or “Mr. Xiong”). See Compl., ECF No. 1 at 4 ¶
16. Mr. Smith described Mr. Xiong “as good at administrative
duties, but not as assertive as other agents.” Id. Both Mr.
Xiong and Mr. Ho are first-generation Asian immigrants who speak
English as a second language. Id. Mr. Ho understood that Mr.
3
Smith “made this comparison between SA Xiong and Plaintiff based
on their race, reflecting a stereotypical view of Asians.” Id.
Several months later, in December 2014, Mr. Smith invited
Mr. Ho and two other agents to join his family for dinner on
Christmas Eve. Id. at 4 ¶ 17. Mr. Ho declined this invitation.
Id. Mr. Smith commented on Mr. Ho’s decision to not attend this
dinner at least twice in the following weeks, stating “Tommy did
not want to go to a [B]lack man’s house.” Id. Mr. Smith made
these remarks in front of Mr. Ho and other WFD staff. Id.
2. Mr. Ho’s Involuntary Transfer
On April 30, 2015, Mr. Ho was involuntarily transferred
again—this time, to a GS-1811 SA/Project Officer position in the
JSOC, in the Office of Strategic Intelligence and Information
(“OSII”)—effective May 17, 2015. Id. His new position was
“clerical in nature,” and his “primary responsibilities included
answering phones and conducting history checks.” Id. at 3 ¶ 13.
For these reasons, Mr. Ho understood the JSOC to be “a
punishment position” that one would not desire if he sought “to
advance and gain experience in the agency.” Id.
The transfer process began when Assistant Director (“AD”)
of Field Operations Michael Gleysteen (“AD Gleysteen” or “Mr.
Gleysteen”) and Deputy Assistant Director (“DAD”) Marino Vidoli
(“DAD Vidoli” or “Mr. Vidoli”) contacted Acting DAD Essam Rabadi
4
(“DAD Rabadi” or “Mr. Rabadi”) to talk to the WFD about
backfilling positions at the JSOC. Id. at 3 ¶ 14. Mr. Rabadi
then contacted Mr. Smith “to provide him with the names of two
‘candidates that fit the criteria for a transfer to the JSOC.’”
Id. at 3-4 ¶ 14.
On April 22, 2015, Mr. Smith informed Mr. Ho about this
direction from HQ. Id. at 4 ¶ 15. Mr. Smith claimed that HQ
asked him “to select an agent who was assigned to the position
of Division Tactical Advisor, Intel Officer, or Senior
Operations Officer, or who was the subject of a pending internal
affairs investigation” for transfer to the JSOC. Id. Seven
agents, including Mr. Ho, met the criteria for transfer. Id.
According to AD McDermond (“Mr. McDermond”), agents are
involuntarily transferred to the JSOC only “if there are no
voluntary candidates for the position.” Id. at 5 ¶ 22. At the
time that Mr. Ho was transferred, one agent—SA Michael Jacobi
(“SA Jacobi” or “Mr. Jacobi”)—had volunteered to move to the
JSOC. Id.
Additionally, agents who could be impeached while
testifying in a criminal trial or who are unable to testify due
to credibility concerns (i.e., Giglio issues) are transferred to
HQ, including to the JSOC, until their conduct and credibility
issues are resolved. See id. Mr. Vidoli identified Brent Price
5
(“Mr. Price”) as a candidate for transfer to the JSOC on the
basis of this criteria. Id.
Mr. Smith forwarded one name—Mr. Ho—to HQ for transfer. Id.
at 4 ¶ 15. On or about April 30, 2015, Mr. Gleysteen signed the
selection memorandum transferring Mr. Ho to the JSOC. Id. at 5 ¶
20.
3. EEO Proceedings and Denied Transfer
On June 1, 2015, Mr. Ho filed an informal equal employment
opportunity (“EEO”) complaint alleging race discrimination and
reprisal. Id. at 5 ¶ 23.
On June 9, 2015, he met with his supervisors: Division
Chief of the Violent Crime Intelligence Division Kevin O’Keefe
(“Mr. O’Keefe”), Deputy Chief of the Criminal Intelligence
Division Jose Vazquez (“Mr. Vazquez”), and Branch Chief of the
JSOC Bryan Washington (“Mr. Washington”). Id. at 5-6 ¶ 24.
During this meeting, he requested information about his
reassignment to the JSOC. Id. He also discussed with his
supervisors another reassignment—this time to an office in the
San Francisco Field Division (“SFFD”). Id. at 6 ¶ 24. He
specifically mentioned that he would like to return to the LVFO.
Id. Mr. Ho was informed that this request would be discussed
among upper management. See id.
On June 17, 2015, EEO Specialist Brenda Bryant (“Ms.
Bryant”) conducted Plaintiff’s initial EEO interview. Id. at 6 ¶
6
25. In the days after this interview, Ms. Bryant contacted Mr.
Washington about the EEO complaint, informing him of Mr. Ho’s
claims and desired return to the LVFO. Id. at 6 ¶ 26. Mr.
Washington asked Ms. Bryant to direct all further questions
about Mr. Ho to Mr. O’Keefe. Id. Still, he communicated this
information to Mr. O’Keefe and Mr. Vazquez. Id. at 6 ¶ 27. Mr.
O’Keefe told Mr. Washington “to stand by and wait for further
instruction.” Id.
Ms. Bryant also contacted Mr. O’Keefe about the EEO
complaint, including the claims and requested relief. Id. at 6 ¶
28. Mr. O’Keefe told Ms. Bryant that he would discuss
reassigning Mr. Ho with Mr. McDermond, but they did not discuss
resolution of the EEO complaint. Id. Mr. O’Keefe then separately
notified Mr. Vazquez and Mr. Washington about the EEO complaint.
Id. at 6 ¶ 29. Mr. O’Keefe also contacted Mr. McDermond about
the same. Id.
Ms. Bryant conducted Mr. Ho’s final EEO interview on July
28, 2015. Id. at 6 ¶ 30.
On August 14, 2015, Mr. Ho filed a formal EEO complaint.
Id. at 6-7 ¶ 30. Ms. Bryant contacted Mr. O’Keefe in the
following days to inform him of the formal EEO complaint. Id. at
7 ¶ 31. Mr. O’Keefe then notified Mr. Vazquez and Mr.
Washington. Id. He then contacted Mr. McDermond, but he told the
AD that “Plaintiff was contemplating filing an EEO complaint”
7
and that “he was trying to help Plaintiff resolve the matter so
Plaintiff would not file a formal complaint.” Id. at 7 ¶ 32.
Mr. O’Keefe and Mr. McDermond met several times in the
coming days and discussed the status of Mr. Ho’s reassignment.
Id. at 7 ¶ 33. During one conversation, Mr. O’Keefe told Mr.
McDermond that Mr. Ho would be transferred to the San Jose Field
Office. Id.
Mr. Gleysteen informed DAD Luke Franey (“DAD Franey” or
“Mr. Franey”) of this transfer and asked for his help in the
process. See id. at 7 ¶ 34. Mr. O’Keefe told Mr. McDermond that
he would work with Mr. Franey and OSII Chief of Staff Ernest
Hickson (“Mr. Hickson”) to make the transfer. Id. at 7 ¶ 35. On
August 20, 2015, Mr. Franey told Mr. Hickson that Mr. Ho could
come to the San Jose Field Office and that Mr. Jacobi would
replace him at the JSOC. Id. at 7 ¶ 36.
Mr. Washington informed Mr. Ho of the reassignment that
same day. Id. at 7-8 ¶ 37. Mr. Ho immediately told Mr.
Washington that he could not go to a California field office
because his extensive firearms collection is prohibited in the
state. Id. at 8 ¶ 37. Mr. Washington discussed with Mr. O’Keefe,
who then contacted Mr. McDermond about the impossibility of a
San Jose Field Office transfer and the possibility of a LVFO
transfer. See id.
8
Mr. Franey agreed to pursue the LVFO transfer and informed
Mr. O’Keefe, who advised Mr. McDermond and Mr. Washington. Id.
at 8 ¶ 38. Mr. McDermond directed Mr. O’Keefe to continue with
the transfer. Id.
On August 21, 2015, Mr. Vazquez and Mr. Washington asked
Mr. Ho about the San Jose Field Office. Id. at 8 ¶ 40. Mr. Ho
gave them the response that he gave to Mr. Washington earlier.
See id.
Mr. Franey then contacted individuals at the SFFD about a
possible LVFO transfer. See id. ¶ 41. No one had any objection
to this proposal. See id. SFFD leadership agreed to the
reassignment. See id. at 8-9 ¶ 42. On direction, Mr. Franey
instructed the Field Operations Field Management Staff (“FMS”)
to initiate the Permanent Change of Station (“PCS”) paperwork
for Mr. Ho. See id. at 9 ¶ 43. Mr. Hickson then requested
coordination such that Mr. Ho would go to the LVFO and Mr.
Jacobi would go to the JSOC on the same dates. See id.; see also
id. at 9 ¶ 46 (“Plaintiff and SA Jacobi had the same report date
of November 29, 2015.”).
Angela Iaquinta (“Ms. Iaquinta”) was asked to prepare the
reassignment and selection memorandum for Mr. Ho, which she did
on or about August 24, 2015. Id. at 9 ¶¶ 43, 45. The PCS file
included: a selection notice with a PCS funding stamp, emails
about the above events, and a routing slip on the front of the
9
folder with initials and dates. See id. at 10 ¶ 48. She left the
PCS file with Mr. Gleysteen’s assistant, who then gave the
paperwork to Mr. Gleysteen. Id. at 9 ¶ 45. In the meantime, Mr.
Washington told Mr. Ho that his transfer to the LVFO had been
approved. Id. at 9 ¶ 44.
Mr. Gleysteen received Mr. Jacobi’s PCS file on August 24,
2015 and signed it on August 31, 2015. Id. at 9 ¶ 46. He signed
the transmittal slip on September 8, 2015. Id.
Although he had already approved PCS funding for Mr. Ho’s
reassignment to the SFFD and for Mr. Jacobi’s reassignment to
the JSOC, Mr. Gleysteen denied Mr. Ho’s reassignment. See id. at
9-10 at 47. Mr. Gleysteen also shredded Mr. Ho’s PCS file,
destroying the original and only copy of that paperwork. Id. at
10 ¶ 49.
Despite Mr. Gleysteen’s actions, Mr. Washington told Mr.
O’Keefe and Mr. Vazquez that Mr. Ho’s PCS file was awaiting
signature from Mr. Gleysteen. Id. at 10 ¶ 50. Several
individuals in leadership discussed the status of Mr. Ho’s
transfer, and Mr. Ho also asked Mr. Washington to confirm his
reporting date. See id. at 10 ¶ 51.
Ms. Iaquinta told Mr. Washington that the selection
memorandum had not been signed on September 10, 2015. Id. at 10
¶ 52. Mr. Washington and Mr. Vazquez each informed Mr. Ho that
his paperwork was awaiting signature. See id. at 10 ¶¶ 52-53.
10
In the following days, Mr. O’Keefe told Mr. McDermond that
the reassignment was stalled and asked whether the EEO complaint
was a factor. See id. at 11 ¶ 55. Mr. McDermond explained that
Mr. Ho’s reassignment “was tied to his EEO activity.” Id. Mr.
O’Keefe consulted with agency counsel and concluded that the EEO
complaint was the reason for the stalled reassignment. Id.
Agency counsel later informed Mr. McDermond that Mr.
Gleysteen had denied Mr. Ho’s reassignment to the LVFO. Id. at
11 ¶ 56. Mr. McDermond then talked to Mr. Gleysteen, who
informed him that “the only way he would authorize Plaintiff’s
move to the LVFO was if Plaintiff signed a settlement agreement
resolving his EEO complaint.” Id. at 11 ¶ 58.
Ms. Bryant contacted Mr. Ho about the possibility of
settlement on September 17, 2015. Id. at 11-12 ¶ 60. The next
day, she told Mr. Ho of Mr. Gleysteen’s “ultimatum.” Id. at 12 ¶
61. The Acting Deputy Chief of the EEO, Robyn Ferguson-Russ,
called Mr. Ho to tell him “that he would only be transferred to
the LVFO if he signed a settlement agreement and withdrew his
EEO complaint.” Id. at 12 ¶ 62.
On or about September 20, 2015, Mr. Jacobi’s transfer to
the JSOC was cancelled. Id. at 12 ¶ 63.
On or about September 25, 2015, agency counsel informed Mr.
O’Keefe and Mr. McDermond that Plaintiff was not willing to
settle his EEO complaint for a transfer to the LVFO. See id. at
11
12 ¶ 64. Mr. O’Keefe informed Mr. Vazquez and Mr. Washington,
and Mr. McDermond told Mr. Gleysteen. Id. No one informed Mr. Ho
that his transfer to the LVFO had been cancelled. Id. at 12 ¶
65.
B. Procedural
Mr. Ho filed this Complaint on April 6, 2020. See generally
Compl., ECF No. 1. On July 23, 2020, Defendant filed its Motion
to Dismiss or, in the Alternative, Motion for Summary Judgment.
See generally Def.’s Mot., ECF No. 13-1.
Plaintiff filed his Opposition to Defendant’s Motion to
Dismiss or, in the Alternative, Motion for Summary Judgment on
August 13, 2020. See generally Pl.’s Opp’n, ECF No. 16-1.
Plaintiff thereafter filed a Motion Under Rule 56(d). See
generally Pl.’s Mot. Under Rule 56(d), ECF No. 17.
Defendant filed its reply in support of the Motion to
Dismiss on September 3, 2020, see generally Def.’s Reply in
Supp. of Mot. Dismiss or, in the Alternative, Mot. Summ. J.
(“Def.’s Reply”), ECF No. 19; and its opposition to Plaintiff’s
Motion Under Rule 56(d) on September 10, 2020, see generally
Def.’s Opp’n Pl.’s Mot. Under Rule 56(d) (“Def.’s Opp’n”), ECF
No. 21. Plaintiff filed his final reply on September 17, 2020.
See generally Pl.’s Reply in Supp. of Mot. Under Rule 56(d)
(“Pl.’s Reply”), ECF No. 23.
The motions are ripe and ready for adjudication.
12
III. Standards of Review
A. Rule 12(b)(6) Motion to Dismiss
A motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) tests the legal sufficiency of a complaint. Browning v.
Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A complaint must
contain “a short and plain statement of the claim showing that
the pleader is entitled to relief, in order to give the
defendant fair notice of what the . . . claim is and the grounds
upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007). While detailed factual allegations are not required,
a complaint must contain “sufficient factual matter . . . to
state a claim to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009).
When ruling on a Rule 12(b)(6) motion, the Court “may
consider only the facts alleged in the complaint, any documents
either attached to or incorporated in the complaint and matters
of which we may take judicial notice.” EEOC v. St. Francis
Xavier Parochial Sch., 117 F. 3d 621, 624 (D.C. Cir. 1997). In
so doing, the court must give the plaintiff the “benefit of all
inferences that can be derived from the facts alleged.” Kowal v.
MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).
“Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements” are not sufficient to
state a claim. Iqbal, 556 U.S. at 678.
13
B. Motions Styled as Motions to Dismiss Or, in the
Alternative, for Summary Judgment in Employment
Discrimination Cases
Under Federal Rule of Civil Procedure 56, the movant’s
burden is to “show[] that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (1986). However, “summary
judgment ordinarily ‘is proper only after the plaintiff has been
given adequate time for discovery.’” Americable Int’l, Inc. v.
Dep’t of Navy, 129 F.3d 1271, 1274 (D.C. Cir. 1997) (quoting
First Chicago Int’l v. United Exch. Co., 836 F.2d 1375, 1380
(D.C. Cir. 1988)). “This is largely because, when faced with a
motion for summary judgment, the non-movant must point to
evidence in support of his opposition, and evidence is typically
the province of discovery.” Tyson v. Brennan, 306 F. Supp. 3d
365 (D.D.C. 2017) (citing Rochon v. Lynch, 139 F. Supp. 3d 394,
401 (D.D.C. 2015)). “Moreover, where a defendant has moved for
summary judgment under Rule 56 as an alternative to dismissal
under Rule 12(b)(6), ‘the decision regarding whether or not to
treat a motion to dismiss as one for summary judgment is
committed to the sound discretion of the trial court[,] which
means that this Court need not necessarily accede to [the
defendant’s] request regarding how its motion should be
evaluated.’” Id. (quoting Ross v. U.S. Capitol Police, 195 F.
14Supp. 3d 180, 192 (D.D.C. 2016)) (internal quotation marks and
citation omitted) (first alteration in original).
C. Rule 56(d) Motion for Discovery
Under Federal Rule of Civil Procedure 56(d), a non-moving
party may ask the court to stay the consideration of summary
judgment. A court may defer considering a motion for summary
judgment, deny the motion, or allow time for the non-movant to
take discovery if that party “shows by affidavit or declaration
that, for specified reasons, it cannot present facts essential
to justify its opposition.” Fed. R. Civ. P. 56(d). The criteria
of a Rule 56(d) declaration are that:
(1) It must outline the particular facts the
non-movant intends to discover and describe
why those facts are necessary to the
litigation, (2) it must explain why the non-
movant could not produce the facts in
opposition to the motion for summary judgment;
and (3) it must show the information is in
fact discoverable.
U.S. ex rel. Folliard v. Gov’t Acquisitions, Inc., 764 F.3d 19,
26–27 (D.C. Cir. 2014) (citing Convertino v. DOJ, 684 F.3d 93,
99-100 (D.C. Cir. 2012)). A Rule 56(d) motion for discovery
“should be granted almost as a matter of course unless the non-
moving party has not diligently pursued discovery of the
evidence.” Convertino, 684 F.3d at 99.
15
IV. Analysis
A. The Court Can Consider Portions of the Administrative
Record Without Converting the Rule 12(b)(6) Motion to
Dismiss to a Motion for Summary Judgment
“While a court may not consider ‘matters outside the
pleadings’ in evaluating a motion to dismiss under Rule
12(b)(6) without converting the motion to one for summary
judgment under Rule 56, see Fed. R. Civ. P. 12(d); documents
that are referenced in, or an integral part of, the complaint
are deemed not ‘outside the pleadings.’” Peters v. Dist. of
Columbia, 873 F. Supp. 2d 158, 179 (D.D.C. 2012) (quoting Mead
v. Lindlaw, 839 F.Supp.2d 66, 70 (D.D.C. 2012) (“In deciding
a Rule 12(b)(6) motion, a court may consider the facts alleged
in the complaint, documents attached as exhibits or incorporated
by reference in the complaint, or documents upon which the
plaintiff’s complaint necessarily relies even if the document is
produced not by [the parties].”) (internal quotations and
citations omitted)). “[A] document need not be mentioned by name
to be considered ‘referred to’ or ‘incorporated by reference’
into the complaint.” Strumsky v. Wash. Post Co., 842 F. Supp. 2d
215, 218 (D.D.C. 2012) (internal citation omitted). “In ruling
on a motion to dismiss, the Court may consider not only the
facts alleged in the complaint, but also documents attached to
or incorporated by reference in the complaint and documents
attached to a motion to dismiss for which no party contests
16
authenticity.” Demissie v. Starbucks Corp. Off. & Headquarters,
19 F. Supp. 3d 321, 324 (D.D.C. 2014). Here, Mr. Ho does not
dispute Defendant’s argument that his “complaint relies heavily—
almost exclusively—on the administrative record in this matter.”
Compare Def.’s Mot., ECF No. 13-1 at 22 n.6, with Pl.’s Opp’n,
ECF No. 16-1. Nor does he contest the authenticity of the
documents to which Defendant refers. See generally Pl.’s Opp’n,
ECF No. 16-1. Accordingly, the Court will consider the
administrative proceeding documents cited in this Memorandum
Opinion without converting the Motion to Dismiss to a Motion for
Summary Judgment.2
B. Plaintiff Exhausted His Administrative Remedies
Defendant first argues that the Court should dismiss the
Complaint because Mr. Ho failed to exhaust his administrative
remedies. See Def.’s Mot., ECF No. 13-1 at 26-28; Def.’s Reply,
ECF No. 19 at 7-10. Citing persuasive authority, the Government
argues that Title VII complainants must participate in good
faith to exhaust their administrative remedies and that Mr. Ho
failed to do so because he rejected ATF’s settlement offer—even
though that offer would have granted his requested relief to be
reassigned to the LVFO. See Def.’s Mot., ECF No. 13-1 at 26-27
2 As discussed herein, Mr. Ho is entitled to certain additional
discovery on his discrimination claim under Fed. R. Civ. P.
56(f).
17
(citing Wrenn v. Secretary, Dep’t of Veterans Affairs, 918 F.2d
1073, 1078 (2d Cir. 1990)). Mr. Ho does not dispute that Title
VII imposes a good-faith requirement on complainants. See
generally Pl.’s Opp’n, ECF No. 16-1. Rather, he contends that
Defendant’s offer did not constitute full relief and that
rejection of a settlement offer is not a failure to exhaust. Id.
at 14.3 For the reasons that follow, the Court DENIES Defendant’s
Motion to Dismiss on this ground.
Under Title VII, it is unlawful for an employer “to
discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual’s race, color, religion, sex, or
national origin.” 42 U.S.C. § 2000e-2(a)(1); see also McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 800-01 (1973). Congress
“created the Equal Employment Opportunity Commission and
established a procedure whereby . . . the Commission[] would
have an opportunity to settle disputes through conference,
conciliation, and persuasion before the aggrieved party was
permitted to file a lawsuit.” Alexander v. Gardner-Denver Co.,
415 U.S. 36, 44 (1974). Consequently, “Title VII complainants
must timely exhaust their administrative remedies before
3 Mr. Ho also argues that the settlement offer was “retaliatory
on its face.” Pl.’s Opp’n, ECF No. 16-1 at 14. The Court
addresses the issue of retaliation infra, as it is unnecessary
to decide for Defendant’s exhaustion claim.
18
bringing their claims to court.” Payne v. Salazar, 619 F.3d 56,
65 (D.C. Cir. 2010) (alterations, citation, and internal
quotation marks omitted). The government bears the burden of
pleading and proving non-exhaustion as an affirmative defense,
and only once it meets its burden does the burden shift to the
plaintiff to “plead[] and prov[e] facts supporting equitable
avoidance of the defense.” Bowden v. United States, 106 F.3d
433, 437 (D.C. Cir. 1997).
Defendant argues that “[j]udicial elaboration of the
exhaustion requirement has imposed an additional obligation of
good faith participation in the administrative process on
complainants who wish to bring civil actions.” Wrenn, 918 F.2d
at 1078 (citing Munoz v. Aldridge, 894 F.2d 1489, 1492 (5th Cir.
1990)). Although the Court of Appeals for the District of
Columbia Circuit (“D.C. Circuit”) has not described the
exhaustion requirement in such terms, the Second Circuit has
explained that “it follows [from this requirement] that a
claimant who is offered full relief in the administrative
process must either accept the relief offered or abandon the
claim.” Id.In Wrenn, the Second Circuit confronted for the first time
the issue of whether a plaintiff bringing an employment
discrimination claim may obtain relief in federal court after
rejecting an offer of full relief during the administrative
19
proceedings. See id. at 1074. The court, along with the district
court before it, concluded that the agency offered the plaintiff
full relief because the offer contained the “basic components of
‘make whole’ relief in hiring discrimination cases.” Id. at 1076
(collecting cases). The court then addressed the consequences of
the plaintiff rejecting an offer of full relief. Id. at 1077. It
determined that exhaustion must require good-faith participation
in the administrative proceedings because there is a
“legislative preference for voluntary conciliation.” Id. at
1078. Further,
To allow claimants . . . to continue to pursue
claims that have been fully remedied during
the administrative process would frustrate the
congressional policy favoring administrative
resolution of complaints for no discernible
reason. Continued pursuit of such claims
consumes judicial and other resources,
resulting in a dead-weight social loss except
for giving satisfaction to litigants who
prefer court proceedings to administrative
relief.
Id. at 1078-79. The court affirmed summary judgment for the
defendants on that basis. See id. at 1076-79.
Even if the Court were to conclude that the Wrenn court’s
articulation of the exhaustion argument is persuasive,
Defendant’s reliance on Wrenn is misplaced because here,
Defendant has not met its burden of pleading and proving that
the settlement offer constituted full relief. See Bowden, 106
F.3d at 437. Rather than pointing to evidence in the
20
administrative record, Defendant relies entirely on the
Complaint to assert that Mr. Ho was offered the relief he had
requested in his administrative complaint—paid reassignment to
the LVFO. Def.’s Mot., ECF No. 13-1 at 27. Defendant has pointed
to no evidence from which the Court could conclude that the
settlement offered Mr. Ho “full relief” here. Cf. Wrenn, 918
F.2d at 1076 (noting that “[t]he settlement proposal included
the three basic components of ‘make whole’ relief in hiring
discrimination cases: a job offer, backpay, and retroactive
seniority”).
Accordingly, the Court DENIES Defendant’s Motion to Dismiss
the Complaint for failure to exhaust administrative remedies.
C. Mr. Ho Has Sufficiently Pled a Claim of Discrimination
The Government next moves to dismiss Count II of the
Complaint, which alleges race discrimination in violation of
Title VII. See Def.’s Mot., ECF No. 13-1 at 28-31; Def.’s Reply,
ECF No. 19 at 10-17. For the reasons below, the Court concludes
that Mr. Ho has stated a claim of race discrimination.
“Under Title VII, . . . the two essential elements of a
discrimination claim are that (i) the plaintiff suffered an
adverse employment action (ii) because of the plaintiff’s race,
color, religion, sex, national origin, age, or disability.”
Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008). In
21
cases where there is no direct evidence of discrimination, as
here, the plaintiff must proceed under the burden-shifting
framework from McDonnell Douglas Corp. and Texas Department of
Community Affairs v. Burdine, 450 U.S. 248 (1981). See Jeffries
v. Barr, 965 F.3d 843, 859 (D.C. Cir. 2020). The plaintiff first
must plead a prima facie case of discrimination, see id.;
specifically, he must establish that “[]he is part of a
protected class under Title VII, []he suffered a cognizable
adverse employment action, and the action gives rise to an
inference of discrimination,” Walker v. Johnson, 798 F.3d 1085,
1091 (D.C. Cir. 2015). If he makes out a prima facie case, then
the burden shifts to the defendant to “‘articulate some
legitimate, nondiscriminatory reason’ for its action.” Jeffries,
965 F.3d at 859 (quoting Burdine, 450 U.S. at 252-53). “Should
the employer carry its burden at the second step,” the burden
shifts back to the plaintiff to “prove that the employer’s
asserted reasons ‘were not its true reasons, but were a pretext
for discrimination.’” Id. at 859-60 (quoting Burdine, 450 U.S.
at 253).
1. Plaintiff’s Prima Facie Case
To begin, a plaintiff may survive a Rule 12(b)(6) motion to
dismiss without pleading all of the elements of a prima facie
case. See Brown v. Sessoms, 774 F.3d 1016, 1023 (D.C. Cir.
2014). “The prima facie case under McDonnell Douglas . . . is an
22
evidentiary standard, not a pleading requirement.” Swierkiewicz
v. Sorema N.A., 534 U.S. 506, 510 (2002). Still, the Court
concludes that Mr. Ho had pled all of the elements of his prima
facie case at this stage in the proceedings.
Defendant argues that Mr. Ho has not carried his burden at
the first step.4 First, the Government disputes that reassignment
to the JSOC is an adverse employment action. See Def.’s Reply,
ECF No. 19 at 14. It argues that, in the Complaint, Mr. Ho made
“a single unsupported allegation that the Joint Support
Operations Center ‘is considered a punishment position and is a
difficult to fill,’” id. (quoting Compl., ECF No. 1 at 3 ¶ 13);
which is a “conclusory allegation[] not entitled to the
assumption of truth,” id. (citing Iqbal, 556 U.S. at 678-79).
Defendant’s argument ignores both controlling caselaw and other
allegations in the Complaint. The D.C. Circuit has explained
that “reassignment with significantly different
responsibilities” is “conclusively presumed to be [an] adverse
employment action[], even if any alleged harm is speculative.”
Douglas v. Donovan, 559 F.3d 549, 553 (D.C. Cir. 2009). Here,
Mr. Ho alleged that his reassignment to the JSOC entailed
significantly different responsibilities, specifically that
4 Defendant does not contest that Mr. Ho is a member of a
protected class under Title VII. See Def.’s Mot., ECF No. 13-1
at 6.
23
“[t]he JSOC SA position to which [he] was involuntarily
reassigned is clerical in nature,” and his “primary
responsibilities included answering phones and conducting
history checks.” Compl., ECF No. 1 at 3 ¶ 13. Although there may
be a dispute over whether the JSOC is a “punishment position,”
see Def.’s Reply, ECF No. 19 at 17 (citing Mr. O’Keefe’s
deposition transcript to explain that agents have volunteered
for reassignment to the JSOC); Mr. Ho has met his pleading
burden at this stage.
Second, the Government contends that Mr. Ho’s allegations
do not give rise to an inference of discrimination. See Def.’s
Mot., ECF No. 13-1 at 28-31; Def.’s Reply, ECF No. 19 at 10-17.
The Court begins by addressing Mr. Ho’s allegations about SAC
Smith’s “history of racially charged statements.” Pl.’s Opp’n,
ECF No. 16-1 at 17. SAC Smith made the first of the two
statements at issue in June 2014, shortly after Mr. Ho began his
assignment at the WFD. See Compl., ECF No. 1 at 3 ¶ 11; id. at 4
¶ 16. In this conversation, Mr. Smith discussed Mr. Ho’s job
responsibilities as a Senior Operations Officer at the WFD. See
Def.’s Reply, ECF No. 19 at 11 (citing Def.’s Ex. 1 (T. Ho Dep.
Tr.) at 86:2-12.3). Mr. Smith also talked about his experience
supervising Mr. Ho two years earlier when they both worked in
the SOD, see Def.’s Mot., ECF No. 13-1 at 7 (citing Def.’s Ex. 1
(T. Ho Dep. Tr.) at 90:9-11); and explained that, because of
24
that experience, “he knew the ‘type of person [Plaintiff was]
and he had an idea of what to expect of [Plaintiff],’” id.(quoting Def.’s Ex. 1 (T. Ho Dep. Tr.) at 90:9-22). Although he
already knew Mr. Ho in a supervisory capacity, see id.; Mr.
Smith turned the conversation to another man he had previously
supervised, SA Xiong, who had been a Division Operations Officer
at the Seattle Field Division, see id. (citing Def.’s Ex. 1 (T.
Ho Dep. Tr.) at 86:2-12). Mr. Xiong, like Mr. Ho, is a “first-
generation Asian immigrant[], with English as a second
language.” Compl., ECF No. 1 at 4 ¶ 16. Mr. Smith “described SA
Xiong as good at administrative duties, but not as assertive as
other agents.” Id. Mr. Ho alleges that “SAC Smith made this
comparison between SA Xiong and Plaintiff based on their race,
reflecting a stereotypical view of Asians.” Id.The second statement at issue came several months later. In
December 2014, Mr. Smith invited Mr. Ho and two other special
agents to join his family for dinner on Christmas Eve. Id. at 4
¶ 17. Mr. Ho declined the invitation. See id. In the following
weeks and in front of Mr. Ho and other WFD staff, Mr. Smith
commented that “Tommy did not want to go to a [B]lack man’s
house.” Id.The Court concludes that Mr. Ho has pled adequate facts
from which it may draw an inference of discrimination. Speaking
at the summary judgment stage where the plaintiff alleging
25
discrimination must prove more than at the motion to dismiss
stage, the D.C. Circuit has held:
Although we have found that an isolated race-
based remark unrelated to the relevant
employment decision could not, without more,
permit a jury to infer discrimination, see,
e.g., Waterhouse v. Dist. of Columbia, 298
F.3d 989, 996–97 (D.C. Cir. 2002), we have not
categorically labeled such comments
immaterial. To the contrary, we have found
these types of statements to support a verdict
for a Title VII plaintiff. See, e.g., Evans v.
Sebelius, 716 F.3d 617, 622–23 (D.C. Cir.
2013); Talavera v. Shah, 638 F.3d 303, 312–13
(D.C. Cir. 2011); Anderson v. Grp.
Hospitalization, Inc., 820 F.2d 465, 472 (D.C.
Cir. 1987); see also Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 152-53
(2000) (cautioning lower courts against
discounting discriminatory statements “not
made in the direct context” of the challenged
employment action).
Morris v. McCarthy, 825 F.3d 658, 669–70 (D.C. Cir. 2016).
Defendant argues that Mr. Smith’s statements are the “isolated”
remarks that cannot give rise to an inference of discrimination.
See Def.’s Mot., ECF No. 13-1 at 29-30; Def.’s Reply, ECF No. 19
at 11-14. But this argument minimizes Mr. Smith’s words.
“Although it is true [these statements] will not always be
evidence of racial animus, it does not follow that [these
words], standing alone, [are] always benign.” Ash v. Tyson
Foods, Inc., 546 U.S. 454, 456 (2006) (per curiam). It is
plausible that these statements reflect stereotypical views of
Asians and Asian-Americans—namely, that they excel in
26
administrative positions and that they are racist against Black
men. See Pl.’s Opp’n, ECF No. 16-1 at 22.
Nor is it fatal, as Defendant suggests, that Mr. Smith made
these statements months before he forwarded Plaintiff’s name for
involuntary transfer to the JSOC. See Def.’s Mot., ECF No. 13-1
at 29-30; Def.’s Reply, ECF No. 19 at 13-14. Indeed, the D.C.
Circuit has explained that “remarks made significantly before
the relevant employment action” may “support a verdict for a
Title VII plaintiff” and are “probative evidence of a
supervisor’s discriminatory attitude.” Morris, 825 F.3d at 670.
Thus, the Court considers these statements alongside “all other
evidence [] to determine whether a plaintiff has met her
burden.” Id. As Defendant argues, “context matters.” Def.’s
Reply, ECF No. 19 at 13.
Here, Mr. Ho has alleged other facts to support an
inference of discrimination. He alleges that Mr. Smith was
directed to provide “the names of two ‘candidates that fit the
criteria for a transfer to the JSOC.’” Compl., ECF No. 1 at 4 ¶
14. Seven agents, including Mr. Ho, met the criteria for
transfer. Id. at 4 ¶ 15. Additionally, another agent—SA Jacobi—
had volunteered for transfer to the JSOC. Id. at 5 ¶ 22. Agents
are involuntarily transferred to the JSOC only if no agents
volunteered for the transfer. Id. Even so, Mr. Smith forwarded
Mr. Ho’s name only, which resulted in the latter’s involuntary
27
reassignment to the JSOC. Id. at 4 ¶ 15. Given these
circumstances and Mr. Smith’s statements, Mr. Ho has more
support than the unsuccessful plaintiff Defendant cites in
McCleary-Evans v. Maryland Department of Transportation, 780
F.3d 582 (4th Cir. 2015), whose “complaint offered nothing to
support her conclusory assertions of discrimination beyond an
unsubstantiated mention of ‘a history of hires’ within the
division and statements identifying her race, the races of the
two members of the hiring review panel, and the races of the two
applicants hired for the positions.” 780 F.3d at 584
(alterations and internal quotation marks omitted). Mr. Ho has
submitted evidence of race-based remarks by his supervisor,
which are substantiated in the evidentiary record, as well as
circumstances around his involuntary transfer to the JSOC that
make it reasonable to infer discrimination.
Accordingly, the Court concludes that Plaintiff has
adequately pled his prima facie case of discrimination.
2. Defendant’s Legitimate, Nondiscriminatory Reasons
and Plaintiff’s Case for Pretext
The parties do not dispute that Defendant has offered
legitimate, nondiscriminatory reasons for Plaintiff’s
involuntary transfer to the JSOC. See Def.’s Mot., ECF No. 13-1
at 14-15; Pl.’s Opp’n, ECF No. 16-1 at 21-22; Def.’s Reply, ECF
No. 19 at 30-31. Specifically, Defendant claims that ATF needed
28
to backfill positions at the JSOC and that SAC Smith selected
Mr. Ho because he met the qualifications for transfer. See
Def.’s Mot., ECF No. 13-1 at 30-31. The Court agrees that
Defendant has articulated legitimate reasons for the employment
decision. See Burdine, 450 U.S. at 254 (“The defendant need not
persuade the court that it was actually motivated by the
proffered reasons. It is sufficient if the defendant’s evidence
raises a genuine issue of fact as to whether it discriminated
against the plaintiff.”)
The Court therefore turns to Mr. Ho’s argument that the
Government’s “asserted reasons ‘were not its true reasons, but
were a pretext for discrimination.’” Jeffries, 965 F.3d at 860
(quoting Burdine, 450 U.S. at 253). Mr. Ho makes four points to
support his argument about pretext: (1) Mr. Smith forwarded only
Plaintiff’s name despite having been asked to send two names;
(2) Mr. Smith’s history of race-based statements; (3) ATF’s
practice of transferring to the JSOC agents with disciplinary or
conduct issues; and (4) ATF’s practice of making involuntary
transfers to the JSOC only when there were voluntary candidates.
See Pl.’s Opp’n, ECF No. 16-1 at 21-22. In its reply briefing,
Defendant raises three points: (1) Plaintiff has not alleged
facts that Mr. Smith harbored racial animus against him; (2) one
of the agents Plaintiff identified—Mr. Price—was not a candidate
for reassignment by Mr. Smith; and (3) Mr. Jacobi was not a
29
candidate for reassignment by Mr. Smith. See Def.’s Reply, ECF
No. 19 at 15-17.
The Court need not address Defendant’s second argument, as
it is repetitive of Defendant’s earlier argument against the
prima facie case and has been addressed supra. See id. at 16.
Turning to Defendant’s other points, the Court is similarly
unpersuaded. In the Complaint, Mr. Ho alleges that “Brent Price
was identified by DAD Vidoli as a potential candidate for the
JSOC because he had Giglio issues.” Compl., ECF No. 1 at 5 ¶ 22.
Assuming arguendo that Mr. Price did have Giglio issues, see
Def.’s Reply, ECF No. 19 at 16 n.6; Defendant argues that Mr.
Price could not have been selected instead of Mr. Ho because Mr.
Price worked at the Seattle Field Division and thus was not a
candidate for Mr. Smith (at the WFD) to consider, id. at 16-17.
Even if Defendant’s contention is true, it does not explain why
Mr. Vidoli would have named Mr. Price as a potential candidate
for transfer to the JSOC. See Compl., ECF No. 1 at 5 ¶ 22. Nor
does it dispose of Mr. Ho’s general argument that other agents—
namely, those with Giglio issues—are considered for transfer to
the JSOC before other agents. See id. In fact, Defendant does
not dispute that this practice exists. See generally Def.’s
Reply, ECF No. 19; Def.’s Mot., ECF No. 13-1. Mr. Ho claims that
the Government veered from its usual course due to Mr. Smith’s
discriminatory actions, and Defendant’s argument about Mr. Price
30
at best creates a factual dispute about whether there were
candidates with Giglio issues at the time of Mr. Ho’s transfer.
Defendant makes a similar argument as to Mr. Jacobi, and
the Court comes to the same conclusion. Mr. Ho alleges that Mr.
Jacobi had volunteered for transfer to the JSOC and that “an
agent is only involuntarily transferred to the JSOC if there are
no voluntary candidates for the position.” Compl., ECF No. 1 at
5 ¶ 22. Defendant argues that Mr. Smith could not have
considered Mr. Jacobi for the reassignment because Mr. Smith
supervises agents at the WFD and Mr. Jacobi, like Mr. Price,
works at the Seattle Field Division. See Def.’s Reply, ECF No.
19 at 16-17. Given Mr. Ho’s allegations that ATF takes voluntary
transfers first and that Mr. Smith selected only one agent,
Defendant does not offer enough to explain why Mr. Smith
forwarded Mr. Ho’s name for transfer at all. Moreover, Defendant
undercuts its own argument by claiming that “ATF had not been
required to involuntarily reassign any other agent because
agents had always volunteered for the reassignment since around
2008.” Id. at 17 (citation omitted). Defendant offers no
explanation as to whether there were other volunteers in 2015,
why there were no volunteers other than Mr. Jacobi, or why ATF
failed to solicit more volunteers if needed. Left with these
gaps, the Court concludes that Mr. Ho has stated a claim that
ATF’s reason for reassigning Mr. Ho to the JSOC was pretextual.
31
Accordingly, the Court DENIES Defendant’s Motion to Dismiss
Count II of the Complaint alleging race discrimination in
violation of Title VII.
D. Mr. Ho Has Not Alleged a Plausible Claim of
Retaliation
1. The Settlement Offer Is Inadmissible
Defendant also moves to dismiss Count I of the Complaint,
which alleges retaliation in violation of Title VII, arguing
that Mr. Ho’s allegations are based on inadmissible evidence of
the settlement offer. See Def.’s Mot., ECF No. 13-1 at 31-34;
Def.’s Reply, ECF No. 19 at 17-22.
Mr. Ho’s retaliation claim is that “Defendant’s conduct in
denying Plaintiff’s transfer to the LVFO absent his agreement to
withdraw his EEO Complaint constitutes retaliation for engaging
in protected activity.” Compl., ECF No. 1 at 13 ¶ 70.
The Government argues that this “allegation[] cannot be
used to state a plausible claim of retaliation” because pursuant
to Federal Rule of Evidence 408(a), “evidence of [a settlement
offer or settlement discussions] is not admissible—on behalf of
any party—either to prove or disprove the validity5 or amount of
a disputed claim or to impeach by a prior inconsistent statement
5 Validity encompasses liability. See Fed. R. Evid 408, adv.
Comm. Note, 2011 Amend.
32
or a contradiction.” Def.’s Mot., ECF No. 13-1 at 31 (citing
Fed. R. Evid. 408(a)).
In response, Mr. Ho makes two arguments. First, he argues
that his “retaliation claim is not based on inadmissible
settlement discussions” because the basis for his retaliation
count is that “[a]fter [he] filed his formal EEO complaint, AD
Gleysteen denied [Mr. Ho’s] request to transfer to the LVFO and
shredded the original transfer paperwork, destroying evidence
for which there are no copies.” Pl.’s Opp’n, ECF No. 16-1 at 23
(citing Compl., ECF No. 1 at 10 ¶ 49).
Mr. Ho alleges that “[t]he paperwork for the transfer was
on AD Gleysteen’s desk when Plaintiff filed his formal
complaint” and that “after Plaintiff filed his formal EEO
complaint, AD Gleysteen denied Plaintiff’s request to transfer
to the LVFO and destroyed the original transfer paperwork.”6 Id.
(citing Compl., ECF No. 1 at 10 ¶¶ 50, 49). However, this is not
the basis of the retaliation count in the Complaint. See Compl.,
6 The allegations in the Complaint do not support this argument.
Rather, the Complaint alleges that Mr. Ho filed a formal EEO
complaint on August 14, 2015, see Compl., ECF No. 1 at 6-7 ¶ 30;
and that the paperwork did not reach AD Gleysteen’s desk until
sometime after August 24, 2015, see id. at 9 ¶¶ 43, 45.
Furthermore, during the administrative proceedings, Mr. Ho
failed to elicit any evidence demonstrating that Mr. Gleysteen’s
failure to approve the transfer to the LVFO was retaliatory
because there is no evidence that Mr. Gleysteen knew about Mr.
Ho’s EEO activity when he declined to approve the transfer to
the LVFO. See Gleysteen Dep., ECF No. 24-12 at 29:6-31-13;
McDermond Dep., ECF No. 14-5 at 53:17-54:15.
33
ECF No. 1 at 13 ¶ 70. “It is axiomatic that a complaint may not
be amended by the briefs in opposition to a motion to dismiss.”
Coleman v. Pension Benefit Guar. Corp., 94 F. Supp. 2d 18, 24
n.8 (D.D.C 2000) (citation omitted).
Mr. Ho’s second argument is that he can use the settlement
discussions “for another purpose, such as proving a witness’s
bias or prejudice.” Pl.’s Opp’n, ECF No. 16-1 at 23. He ties
this use of the settlement discussions again to “Defendant’s
offer to reassign Plaintiff to the LVFO and subsequent recission
of that offer,” arguing that the settlement offer is being used
to prove AD Gleysteen’s bias or prejudice. Id. As explained
above, however, Mr. Ho’s retaliation count is not based on this
incident, but on “Defendant’s conduct in denying Plaintiff’s
transfer to the LVFO absent his agreement to withdraw his EEO
Complaint constitutes retaliation for engaging in protected
activity.” Compl., ECF No. 1 at 13 ¶ 70.
Mr. Ho has provided no argument in support of his use of
the settlement offer to prove that Defendant retaliated against
him when it offered to transfer him to the LVFO so long as he
withdrew his EEO complaint, which is Mr. Ho’s retaliation
allegation in the Complaint. See Pl.’s Opp’n, ECF No. 16-1 at
23-24. The evidence of the settlement offer is therefore
inadmissible. See Fed. R. Evid. 408(a).
34
2. Mr. Ho Has Not Alleged a Plausible Retaliation Claim
Alternatively, Defendant argues that Mr. Ho cannot state a
claim for retaliation based on the offer of approving the
transfer to the LVFO in exchange for Mr. Ho withdrawing his EEO
complaint. See Def.’s Mot., ECF No. 13-1 at 32-34.
Under Title VII, it is unlawful for an employer to: (1)
“discriminate against any individual with respect to [his]
compensation, terms, conditions, or privileges of employment,
because of [his] race, color, religion, sex, or national
origin,” 42 U.S.C. § 2000e-2(a)(1); or (2) retaliate against any
individual for participating in a protected activity, 42 U.S.C.
§ 2000e-3(a). To establish a prima facie claim of retaliation,
the plaintiff must allege that he engaged in activity protected
by Title VII, the employer took adverse action against him, and
the employer took that action because of the employee’s
protected conduct. Hamilton v. Geithner, 666 F.3d 1344, 1357
(D.C. Cir. 2012).
In response, Mr. Ho again argues that he had stated a claim
for retaliation both as a result of “Defendant’s agreement to
transfer him to the LVFO and subsequent abandonment of that
agreement after learning that Plaintiff had filed a formal EEO
complaint” and Defendant’s settlement offer to transfer Mr. Ho
only if he withdrew his complaint. Pl.’s Opp’n, ECF No. 16-1 at
25. The Court will disregard Mr. Ho’s first argument because it
35
is not the retaliation count alleged in the Complaint and
because Mr. Ho elicited no evidence to support the argument
during the administrative proceedings. See supra. To the extent
Mr. Ho argues that the settlement offer constituted an adverse
employment action, the authority within this circuit upon which
he relies provides no support for this argument. In Rochon v.
Gonzales, the issue was whether the retaliatory action needs to
be employment related to state a Title VII claim. 438 F.3d 1211,
1217 (D.C. Cir. 2006). There, the allegation was that the
retaliatory conduct was the employer’s refusal to investigate a
death threat made against the plaintiff. Id. at 1219. Here,
there is no question that the alleged retaliatory act was
employment related. In Ramos v. Lynch, the Court found that
summary judgment for the employer was premature because “[t]he
information sought by plaintiff could show there was objective
harm caused by the transfer—either direct, financial harm, or
harm to plaintiff’s prospects for advancement at the agency . .
. .” 267 F. Supp. 3d 39, 47 (D.D.C. 2017). This provides no
support for the proposition that conditioning the transfer to
the LVFO in exchange for withdrawing his EEO complaint was an
adverse employment action.
Mr. Ho has provided no support for his argument that the
settlement offer constituted an adverse employment action and
therefore has failed to state a plausible claim for retaliation.
36
Cf. EEOC v. Allstate Ins. Co., 778 F.3d 444, 452 (3d Cir. 2015)
(finding that “denying an employee an unearned benefit on the
basis of the employee’s refusal to sign a release” is not an
adverse employment action); EEOC v. SunDance Rehab Corp., 466
F.3d 490, 499 (6th Cir. 2006) (holding that the offer of a
separation agreement that included a charge-filing ban did not
amount to retaliation).
For these reasons, the Court GRANTS Defendant’s Motion to
Dismiss Count I of the Complaint alleging retaliation in
violation of Title VII and DISMISSES this Count.
E. Plaintiff’s Motion Under Rule 56(d)
Mr. Ho requests additional discovery beyond that which the
parties conducted during the administrative proceedings. See
generally Pl.’s Mot., ECF No. 17-1. His request is narrow,
though, and his Motion Under Rule 56(d) outlines the five types
of discovery he requests for his federal court case: (1) a
deposition of SAC Smith; (2) a deposition of DAD Vidoli; (3)
discovery of six agents Mr. Smith considered for transfer; (4)
discovery of other agents who were involuntarily transferred to
the JSOC between 2013 and 2016; and (5) discovery of Defendant’s
policies and guidance regarding PCS files and litigation holds.
See id. Defendant opposes this request for discovery. See
generally Def.’s Opp’n, ECF No. 21. The Government addresses
37
each of the five areas of discovery Plaintiff identified. See
id. For the reasons explained below, the Court concludes that
discovery is warranted in this case.
Under Rule 56(d), the Court may defer considering a motion
for summary judgment, deny the motion, or allow time for the
non-movant to take discovery if that party “shows by affidavit
or declaration that, for specified reasons, it cannot present
facts essential to justify its opposition.” Fed. R. Civ. P.
56(d). Courts are generally reluctant to grant summary judgment
“unless all parties have ‘had a full opportunity to conduct
discovery.’” Convertino, 684 F.3d at 99 (quoting Anderson, 477
U.S. at 257). For that reason, the D.C. Circuit has directed
district courts to grant Rule 56(d) motions “‘almost as a matter
of course.’” Id. (quoting Berkeley v. Home Ins. Co., 68 F.3d
1409, 1414 (D.C. Cir. 1995)). This issue is particularly
sensitive in employment discrimination cases; as the Supreme
Court has explained, “[b]efore discovery has unearthed relevant
facts and evidence, it may be difficult to define the precise
formulation of the required prima facie case in a particular
case.” Swierkiewicz, 534 U.S. at 512.
A Rule 56(d) movant must: (1) “outline the particular facts
movant intends to discover and describe why those facts are
necessary to the litigation”; (2) “explain why the movant could
not produce the facts in opposition to the motion for summary
38
judgment”; and (3) “show the information is in fact
discoverable.” Convertino, 684 F.3d at 94. As Defendant suggests
in their briefing, see Def.’s Opp’n, ECF No. 21 at 7-8; “there
is no reason why the de novo proceedings need duplicate the
administrative record . . . and most de novo testimony would be
in the nature of supplementation to that record.” Hackley v.
Roudebush, 520 F.2d 108, 150 (D.C. Cir. 1975). Still, the D.C.
Circuit has instructed that “courts should focus on the
employee’s complaint” instead of “presuming that . . . the
plaintiff must affirmatively establish his need for
supplementation.” Id. at 151.
Here, Defendant’s Motion to Dismiss or, in the Alternative,
Motion for Summary Judgment was filed before discovery. See
generally Docket for Civil Action No. 20-912. Mr. Ho, in
responding to the Government’s motion, has identified potential
discovery needed to respond to this motion for summary judgment.
See generally Pl.’s Mot., ECF No. 17-1. The Court reviews each
area for discovery in turn.
1. Deposition of SAC Smith
Mr. Ho first requests that he be able to depose Mr. Smith.
Pl.’s Mot., ECF No. 17-1 at 4. He argues that this deposition is
relevant to his case because it will “show that Defendant’s
stated non-discriminatory reasons for the involuntarily transfer
39
were a pretext for discrimination.” Id. He plans to elicit
testimony regarding the following:
1) Smith’s understanding of whether the JSOC
is a punishment position; 2) Smith’s racially
charged statements to and about Plaintiff; 3)
Information concerning other agents Smith
transferred to the JSOC; 4) Whether those
agents were applying to positions outside the
Washington Field Division (WFD) when they were
transferred; 5) Whether their transfer was
voluntary; and 6) Whether Smith took into
account the types of positions to which
Plaintiff applied before involuntarily
transferring him to the JSOC.
Pl.’s Reply, ECF No. 23 at 8. Defendant objects at length to
this additional deposition. See Def.’s Opp’n, ECF No. 21 at 11-
22. The Government argues that any relevant information has
already been produced through Mr. Smith’s EEO affidavit,
Plaintiff’s EEO affidavit, Plaintiff’s EEO deposition, and Mr.
Graves’ EEO deposition. See id. at 12. Moreover, Defendant
contends, “Plaintiff has failed to articulate why those facts
are necessary to the litigation, why he could not produce those
facts absent additional discovery, and that those facts are
discoverable.” Id. at 14.
The Court will permit Mr. Ho to depose Mr. Smith. Most
significant is the fact that Mr. Ho never deposed his former
supervisor during the administrative proceedings and has relied,
thus far, only on Mr. Smith’s EEO affidavit. See Pl.’s Mot., ECF
No. 17-1 at 4. Despite Defendant’s detailed arguments, because
40
of Mr. Smith’s role, it is clear that his testimony will be
necessary to Mr. Ho’s claims. See Fed. R. Civ. P. 26(b)(1); cf.
Hackley, 520 F.2d at 151 (“[T]he employee should have the right
to conduct discovery and compel the attendance of witnesses to
furnish additional evidence.”).
2. Deposition of DAD Vidoli
Mr. Ho also requests a deposition of Mr. Vidoli. Pl.’s
Mot., ECF No. 17-1 at 6. He argues that this testimony is
relevant to a material fact—whether Mr. Vidoli directed Mr.
Smith to provide one or two names for transfer to the JSOC. See
id. In its opposition briefing, Defendant argues that this
deposition is not needed because Mr. Rabadi, not Mr. Vidoli,
communicated directly with Mr. Smith. Def.’s Opp’n, ECF No. 21
at 22-23. The Government adds that, though Mr. Ho possesses
relevant information from Mr. Rabadi’s EEO deposition as well as
Mr. Vidoli and Mr. Smith’s EEO affidavits, the issue of one or
two names “does not matter to the outcome of this litigation.”
Id. at 23.
Because Mr. Ho’s involuntary transfer to the JSOC is the
adverse employment action for his discrimination claim, it is
necessary for him to develop and ascertain facts about the
circumstances of the transfer. Part of Mr. Ho’s theory is that
Mr. Smith decided to transfer only Mr. Ho even though Mr. Vidoli
requested two transfers. See Compl., ECF No. 1 at 3-4 ¶¶ 14-15.
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Further, the Court does not find this request to be cumulative
or duplicative, as Mr. Vidoli has never been deposed. The Court
therefore will allow Mr. Ho to depose Mr. Vidoli.
3. Discovery of Six Other Agents Considered for Transfer
Mr. Ho contends that he needs discovery related to the six
agents Mr. Smith considered for transfer to the JSOC: Samuel
Katz, Jeffrey Meixner, Anthony Rather, Gary Styers, Vendarryl
Jenkins, and Marjorie Noel. Pl.’s Mot., ECF No. 17-1 at 6. He
explains that he “needs to obtain additional evidence about the
potential comparators’ job titles and duties as well as whether
they met the criteria for transfer.” Id. (citing Carter v.
George Washington Univ., 387 F.3d 872, 878 (D.C. Cir. 2004)).
Defendant opposes this request, arguing that the information is
not relevant because “[t]he issue . . . is not why Smith did not
select the other agents, but why Smith selected Plaintiff.”
Def.’s Opp’n, ECF No. 21 at 24. Moreover, the Government adds,
Plaintiff has already discovered information about these six
agents. See id. at 25-26.
Mr. Ho already has information about these six agents’ job
titles and duties, see id.; and so the Court denies Plaintiff’s
request for discovery on those topics, see Townsend v. Mabus,
736 F. Supp. 2d 250, 253 (D.D.C. 2010) (“That the Court’s review
of plaintiff’s claims is de novo does not, as plaintiff appears
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to claim, entitle her to discovery duplicative of that which is
already in the record.” (citing Hackley, 520 F.2d at 150)).
Mr. Ho also requests information about “whether [the six
agents] met the criteria for transfer.” Pl.’s Mot., ECF No. 17-1
at 6. Defendant points to some evidence in the administrative
record, such as performance appraisals. See Def.’s Opp’n, ECF
No. 21 at 25-26. To the extent that Mr. Ho seeks discovery of
other information about these agents related to the criteria for
transfer but not in the administrative record, the Court permits
further discovery. This information is necessary to respond to
the question of whether other agents would have been suitable
for transfer and therefore to the question of why Mr. Ho was
selected rather than another agent. This is enough to clear the
Convertino hurdle.
4. Discovery of Other Agents Involuntarily Transferred
to the JSOC
Mr. Ho argues that he requires discovery about the other
agents who were involuntarily transferred to the JSOC between
2013 and 2016. See Pl.’s Mot., ECF No. 17-1 at 7.7 He claims that
7 “At a minimum, Plaintiff seeks their: 1) names; 2) job titles
and duties; and 3) race and national origin. Plaintiff also
needs to know whether: 1) the agents had any disciplinary
issues, e.g. Giglio issues; 2) they volunteered for the transfer
to the JSOC; 3) the agents faced any barriers to upward mobility
after transferring to the JSOC; and 4) the agents were actively
seeking to be reassigned to a different division prior to
joining the JSOC.” Affidavit of Avni J. Amin, ECF No. 17-3 at 3
¶ 12.
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this information is necessary “[t]o prove Defendant’s non-
discriminatory reasons for involuntarily transferring Plaintiff
to the JSOC are pretextual.” Pl.’s Mot., ECF No. 17-1 at 7. In
its opposition briefing, Defendant contends that this
information is irrelevant, will not create an issue of material
fact, and is duplicative of discovery already conducted at the
administrative level.8 See Def.’s Opp’n, ECF No. 21 at 26-27.
This evidence is relevant to the case. The details of other
agents’ involuntary transfers are relevant to the question of
whether other similarly situated agents were involuntarily
transferred to the JSOC. Answers to this question may illuminate
whether Defendant’s reasons for transferring Mr. Smith instead
of other agents are pretextual. Cf. Cruz v. McAleenan, 931 F.3d
1186, 1192 (D.C. Cir. 2019) (“‘[C]omparative information
concerning an employer’s treatment of [protected groups] is
relevant evidence in an individual discrimination claim against
that employer. Such evidence can be used . . . to show that the
employer’s stated reasons for the challenged actions are a
pretext for discrimination.’” (quoting Minority Employees at
8 Defendant identifies two passages in a single deposition as the
discovery already produced in the case. See Def.’s Opp’n, ECF
No. 21 at 27 (citing Mr. O’Keefe’s deposition transcript). The
Court does not address this deposition because, as Plaintiff
describes in his motion and affidavit, this discovery request
involves specific data not covered in those passages.
44
NASA v. Beggs, 723 F.2d 958, 962 (D.C. Cir. 1983) (per
curiam))).
Further, this request is proportional to the needs of the
litigation. “[T]ransfers are not everyday occurrences,” Pl.’s
Reply, ECF No. 23 at 16; and so Plaintiff requires discovery
over the course of years, rather than months, to conduct his
inquiry. Looking at transfers from both before and after Mr.
Ho’s transfer may reveal information about ATF’s contemporary
practices. And because Mr. Ho has identified the data points he
needs from this discovery, the Court concludes that this request
is limited and proportional to the needs of the case.
5. Discovery of Defendant’s Policies on PCS Files and
Litigation Holds
Mr. Ho claims that he needs additional information about
any litigation hold and “Defendant’s guidance, policies, and
procedures concerning the types of documents and information
that would ordinarily comprise a PCS file” because AD Gleysteen
destroyed the only copy of his PCS file. Pl.’s Mot., ECF No. 17-
1 at 8. He explains that this evidence is relevant to his
retaliation claim. Id. at 9. Defendant opposes this request,
reasoning in part that Mr. Ho has already discovered this
information. See Def.’s Opp’n, ECF No. 21 at 28. The Court has
dismissed Mr. Ho’s retaliation claim, and so this request is
DENIED.
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Accordingly, the Court GRANTS IN PART and DENIES IN PART
Mr. Ho’s Motion Under Rule 56(d).
F. Conclusion
For the foregoing reasons, it is hereby ordered that
Defendant’s Motion to Dismiss or, in the Alternative, Motion for
Summary Judgment, ECF No. 13, is GRANTED IN PART and DENIED IN
PART; and it is further ordered that Mr. Ho’s Motion Under Rule
56(d), ECF No. 17, is GRANTED IN PART and DENIED IN PART.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
September 17, 2022
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