Paschal v. District of Columbia ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
TONY E. PASCHAL,
Plaintiff,
v.
DISTRICT OF COLUMBIA, Civil Action No. 13-1608 (GK)
Defendant.
MEMORANDUM OPINION
Plaintiff Tony E. Paschal ("Plaintiff" or "Paschal") brings
this action against Defendant the District of Columbia
("Defendant") for retaliation and a hostile work environment in
violation of the Americans with Disabilities Act of 1990
("ADA"), 42 U.S.C. §§ 12203, 12132, and 12112(a).
This matter is presently before the Court on Defendant's
Motion to Dismiss or in the Alternative Motion for Summary
Judgment [Dkt. No. 18]. Upon consideration of the Motion,
Opposition, and Reply, the entire record herein, and for the
reasons stated below, Defendant's Motion to Dismiss is granted
in part and denied in part, Defendant's Motion for Summary
Judgment is denied without prejudice, and Plaintiff's Motion for
a Stay to Obtain Discovery is denied as moot.
I . BACKGROUND
A. Factual Background 1
On October 29, 2010, Plaintiff Tony E. Paschal started work
as a Business Relations Specialist with the District of Columbia
Department on Disability Services ("DDS"). Second Amended
Complaint ("SAC") `` 2, 10. DDS is a service provider and
advocate for individuals with disabilities seeking employment in
the District of Columbia. SAC `` 8-9. Plaintiff's duties for DDS
included outreach and engagement with employers to create
relationships with the business community. SAC ~ 10. Plaintiff
would leverage those relationships to find job opportunities for
qualified DDS clients. SAC ~ 10.
Plaintiff has lupus, type 1 diabetes, and rheumatoid
arthritis, which he alleges substantially limit one or more
major life activities, and are thus properly considered
disabilities. SAC ~ 6. Plaintiff informed DDS of the nature of
his disability when he was hired. SAC ~ 11.
1
Defendant has requested Summary Judgment in the alternative
to his Motion to Dismiss, but for the reasons set forth below,
Summary Judgment is premature at this time.
For purposes of ruling on a motion to dismiss, the factual
allegations of the complaint must be presumed to be true and
liberally construed in favor of the plaintiff. Aktieselskabet AF
21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 15 (D.C. Cir.
2 008) ; Shear v. Nat' l Rifle Ass' n of Am., 606 F. 2d 1251, 1253
(D.C. Cir. 1979). Therefore, the facts set forth herein are
taken from the Second Amended Complaint ("SAC") [Dkt. No. 11].
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Plaintiff alleges that beginning in November of 2011, his
direct supervisor, Sylvia Bailey-Charles, "repeatedly made
negative, derogatory statements to [him] and other staff about
people with disabilities--in particular, the agency's clients."
SAC `` 12, 13. The only such comment specifically alleged in his
SAC, however, is that Ms. Bailey-Charles once commented that
disabled persons should be "cleaning toilets . because they
[are] handicapped." SAC ~ 13. On one occasion, "Ms. Bailey-
Charles sent job notices for janitorial and dishwashing work to
a [DDS] client who was a former practicing physician with a
medical degree." Id.Plaintiff decided to meet with an EEO counselor to discuss
his concerns about Ms. Bailey-Charles. SAC ~ 14. Despite
scheduling a meeting for May 2, 2012, which Plaintiff noted on
his online work calendar, Id., it did not take place until May
29, 2012.
In the interim, on or about May 22, 2012, Plaintiff met
with Ms. Bailey-Charles and Sharon Vaughn-Roach, the Program
Operations Manager for the District of Columbia Rehabilitation
Services Administration. SAC ~ 15. At the meeting, Ms. Bailey-
Charles indicated that she had read Plaintiff's calendar entry
noting his date for meeting with an EEO counselor. SAC ~ 15.
Plaintiff contends that Ms. Bailey-Charles made two threats at
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that meeting: (1) to lower his pay grade, and (2) to put him on
a Performance Improvement Plan ("PIP"). SAC ~ 15.
On May 29, 2012, Paschal met with EEO Counselor David
Prince. SAC ~ 17.
On June 26, 2012, Ms. Bailey-Charles forwarded a PIP to
Plaintiff and stated that the decision to issue the PIP was
based on his alleged "lack of performance" during the
performance period that ran from October 2011 through September
2012. SAC ~ 18.
On August 13, 2012, Plaintiff filed a Charge of
Discrimination with the District of Columbia Office of Human
Rights ("OHR"), alleging that he had been discriminated against
on the basis of disability. SAC ~ 2 0. Plaintiff claims that
since filing that charge, he continues to feel "intimidated" by
Ms. Bailey-Charles. SAC~ 21. On November 29, 2012, Plaintiff
again met with Ms. Bailey-Charles and Ms. Vaughn-Roach. Id. At
that meeting, he felt that the two managers "bull[ied]" him, but
did not allege any specific actions. Id.In November 2012, at Ms. Bailey-Charles' behest, Plaintiff
stopped attending networking events and other meetings that he
had routinely attended as part of his work. SAC ~ 22. Plaintiff
alleges that the events and meetings were "prime opportunities"
to network on behalf of DDS's clients and that exclusion from
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these contacts interfered with his ability to perform his job
duties. SAC~ 22.
On December 12, 2012, Ms. Bailey-Charles gave Plaintiff a
negative Annual Performance Evaluation, rating him a "Marginal
Performer" for the period from October 1, 2011 through September
30, 2012. SAC~ 23.
On December 27, 2012, Plaintiff met with Ms. Bailey-Charles
and Ms. Vaughn-Roach for his Annual Performance Review. SAC ~
24. At that meeting, both managers threatened to terminate
Plaintiff s employment or to demote him. SAC
1
~ 24.
On February 12, 2013, Ms. Bailey-Charles informed Plaintiff
that she would change his job description, although that change
did not occur because of certain provisions in Plaintiff,s union
contract and DDS personnel procedures. SAC ~ 25.
On May 15, 2013, OHR issued a Letter of Determination
finding No Probable Cause for Plaintiff s 1
hostile work
environment and retaliation claims. SAC ~ 29. He timely
submitted a request for reconsideration, and on July 24, 2013,
OHR affirmed its findings. SAC ~ 30-31.
B. Procedural Background
On October 21, 2013, Paschal filed his Complaint, alleging
retaliation and hostile work environment under the ADA [Dkt. No.
-5-
1] . On January 24, 2014, Plaintiff filed his Second Amended
Complaint [Dkt. No. 11].
On February 18, 2014, Defendant filed a Motion to Dismiss
or in the Alternative Motion for Summary Judgment [Dkt. No. 18].
On March 7, 2014, Plaintiff submitted a Rule 56(d) Motion for a
Stay to Obtain Discovery [Dkt. No. 21] and a Memorandum of
Points and Authorities in Opposition to Defendant's Motion to
Dismiss or in the Alternative Motion for Summary Judgment, and
in Support of Plaintiff's Rule 56(d) Motion [Dkt. No. 22].
II. STANDARD OF REVIEW
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
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). "[O]nce a
claim has been stated adequately, it may be supported by showing
any set of facts consistent with the allegations in the
complaint." Id. at 563.
Under the Twombly standard, a "court deciding a motion to
dismiss must not make any judgment about the probability of the
plaintiffs' success . [,] 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
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derived from the facts alleged." Aktieselskabet AF 21. November
2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir. 2008)
(internal quotation marks and citations omitted). A complaint
will not suffice, however, if it "tenders 'naked assertion[s]'
devoid of 'further factual enhancement.'" Ashcroft v. Iqbal, 556
u.s. 662, 678 (2009) (quoting Twombly, 550 u.s. at 557)
(alteration in Iqbal).
III. ANALYSIS
A. Hostile Work Environment
In order to adequately plead a claim of hostile work
environment, Plaintiff must allege facts showing "that his
employer subjected him to 'discriminatory intimidation,
ridicule, and insult' 'sufficiently severe or pervasive to
alter the conditions of the victim's employment and create an
abusive working environment. '" Baloch v. Kempthorne, 550 F.3d
1191, 1201 (D.C. Cir. 2008) (quoting Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 21 (1993)). "To determine whether a hostile
work environment exists, the court looks to the totality of the
circumstances, including the frequency of the discriminatory
conduct, its severity, its offensiveness, and whether it
interferes with an employee's work performance." Id. (citing
Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998)).
The Supreme Court has made clear that in order to prevent anti-
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discrimination laws from becoming a "general civility code [,]"
"offhand comments, and isolated incidents (unless extremely
serious) will not amount to discriminatory changes in the terms
and conditions of employment." Faragher, 524 u.s. at 788
(internal citations and quotation marks omitted).
Plaintiff has made only two specific, factual allegations
on which to base his hostile work environment claim: (1) Ms.
Bailey-Charles' comment that disabled persons should be
"cleaning toilets because they were handicapped [;]" and
( 2) Ms. Bailey-Charles' transmission of job notices for
janitorial and dishwashing work to a disabled former practicing
physician. SAC ~ 13.
With respect to "well-pleaded factual allegations[,]" "a
court should assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief." Iqbal,
556 U.S. at 679. These two instances simply do not satisfy this
standard. Without more, the two examples Plaintiff provides are
the very "isolated incidents of offensive conduct [that] do not
amount to actionable harassment." Smith v. Jackson, 539 F. Supp.
2d 116, 138 (D.D.C. 2008) (quoting Stewart v. Evans, 275 F.3d
1126, 1134 (D.C. Cir. 2002)).
Plaintiff does allege that "Ms. Bailey-Charles repeatedly
made negative, derogatory statements about people with
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disabilities[.]" SAC , 13. However, even if Ms. Bailey-Charles'
single, quoted comment is taken as a representative example,
Plaintiff has not met his burden. Plaintiff must show that
Defendant's conduct was "sufficiently severe or pervasive to
alter the conditions of the victim's employment and create an
abusive working environment." Baloch, 550 F.3d at 1201 (internal
citations and quotation marks omitted). Because Ms. Bailey-
Charles' comment--even if repeated--does not rise to this level
of severity. Count II of the Complaint shall be dismissed.
B. Retaliation
A well-pleaded retaliation claim must allege that: "(1)
[the plaintiff] engaged in protected activity, ( 2) [the
plaintiff] was subjected to adverse action by the employer, and
(3) there existed a causal link between the adverse action and
the protected activity." Jones v. Wash. Metro. Area Trans.
Auth., 205 F.3d 428, 433 (D.C. Cir. 2000) (internal citations
omitted); Taylor v. Solis, 571 F.3d 1313, 1320 (D.C. Cir. 2009)
("In order to prevail upon a claim of unlawful retaliation, an
employee must show she engaged in protected activity, as a
consequence of which her employer took a materially adverse
action against her." (internal citations and quotation marks
omitted)). Plaintiff argues--and Defendant does not contest--
that he "engaged in a statutorily protected activity when he
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scheduled a meeting with an EEO counselor." SAC ~ 34. The Court,
therefore, must determine whether the conduct alleged by
Plaintiff constitutes an adverse action, and if so, whether the
pleadings and all reasonable inferences to be drawn from them
plausibly present a causal link between the EEO meeting and the
alleged retaliatory conduct. Aktieselskabet, 525 F.3d at 17;
Jones, 205 F.3d at 433.
1. Adverse Action
"Adverse actions in the retaliation context encompass a
broader sweep of actions than those in a pure discrimination
claim." Baloch v. Kempthorne, 550 F.3d 1191, 1198 n.4 (D.C. Cir.
2008) (internal quotation marks omitted) . Retaliation actions
are "not limited to [those] that affect the terms and conditions
of employment." Burlington N. & Santa Fe Ry. Co. v. White, 54 8
U.S. 53, 64 (2006) . "A materially adverse action is one that
'could well dissuade a reasonable worker from making or
supporting a charge of discrimination.'" Porter v. Shah, 606
F.3d 809, 817-18 (D.C. Cir. 2010) (quoting Burlington Northern,
548 u.s. at 57) . However, "petty slights, [and] minor
annoyances" are normally not enough to deter workers from
exercising their rights. Burlington Northern, 548 U.S. at 68.
Plaintiff contends that several of Defendant's actions were
materially adverse: Ms. Bailey-Charles' threat and eventual
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imposition of the PIP, her assignment of a "Marginal Performer"
rating, her threat to lower Plaintiff's pay grade, Ms. Bailey-
Charles' and Ms. Vaughn-Roach's threat to terminate or demote
Plaintiff, the change in work duties and later threat to change
Plaintiff's job description, and Plaintiff's feeling of
intimidation and sense that Ms. Bailey-Charles and Ms. Vaughn-
Roach tried to "bully" him.
a. Perfor.mance Rating and Perfor.mance
Improvement Plan
Plaintiff's "Marginal Performer" rating and Performance
Improvement Plan ("PIP") are best considered simultaneously
because our Court of Appeals has held that together such actions
may constitute an adverse action. Porter v. Shah, 606 F.3d 809,
818 (D.C. Cir. 2010). Plaintiff points to Porter, 606 F.3d at
818, as support for his contention that both the rating and the
PIP constitute materially adverse actions in this case. Pl. 's
Opp'n at 10. Defendant contends that Porter held that a
particular performance report was not an adverse action "because
it did not affect plaintiff's 'position, grade level, salary, or
promotion opportunities.'" Def. 's Reply at 4 (quoting Porter,
606 F.3d at 818) . 2
2
Defendant also argues that the facts of this case are
distinct from those in Porter because Plaintiff in this case
successfully completed his PIP and successfully appealed his
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In fact, Porter involved two separate interim performance
reviews. 606 F.3d at 818. The first "was delivered orally, with
no written record placed in Porter's personnel files, and it was
superseded by his year-end annual review." Id. The Court of
Appeals ruled that this evaluation was not an adverse action.
Id. The second evaluation, delivered in a subsequent year, "was
in writing [and] . was placed in Porter's personnel file[,]"
despite a policy that normally excluded interim reviews from
personnel files. Id. Moreover, the second evaluation was
accompanied by a PIP. Id. This time, the Court of Appeals ruled
that " [g] i ven the serious consequences affecting Porter's
position, grade level, salary, or promotion opportunities, [the
second, written] negative assessment together with [a] PIP
constituted a material adverse action." Id. (internal quotation
marks omit ted) (citing Baloch, 550 F.3d at 1199; Taylor v.
Solis, 571 F.3d 1313, 1321 (D.C. Cir. 2009)).
Plaintiff alleges that Defendant gave him both a negative
performance rating and placed him on a PIP for the performance
period that ran from October 2011 to September 2012. SAC `` 18,
23. Plaintiff further alleges that the "negative performance
evaluation and the PIP exposed [him] to [potential] removal or
performance rating. Def. 's Reply at 4-5. Since that argument
rests on facts that are not alleged in Plaintiff's pleadings, it
cannot be addressed properly in a Motion to Dismiss.
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reassignment, and they had a detrimental effect on his
responsibilities and promotion opportunities." SAC 36.
Defendant's alleged actions are therefore analogous to the
second evaluation considered by the Porter Court and
consequently, qualify as materially adverse actions. 3
Plaintiff need not allege that he was denied a promotion,
discharged, or received a salary reduction; he "must point to an
action that a reasonable employee would have found materially
adverse." Bonnette v. Shinseki, 907 F. Supp. 2d 54, 69-70
(D.D.C. 2012) (internal quotation marks omitted). Plaintiff has
done so here.
3
Defendant looks to other authority to support its view.
Citing Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003) and
Brown v. Brody, 199 F.3d 446, 457-58 (D.C. Cir. 1999), Defendant
contends that a PIP or a negative review can constitute adverse
actions only when accompanied by a present effect on grade or
salary. Def.'s Mot. at 11-12. However, the Supreme Court's more
recent opinion in Burlington Northern, 548 U.S. at 64, makes
clear that adverse actions are "not limited to discriminatory
actions that affect the terms and conditions of employment." Our
Court of Appeals has concluded that the retaliation standard
applied in Brown v. Brody--that a plaintiff must show a
materially adverse change in the terms and conditions' of
employment--was abrogated by Burlington Northern. Steele v.
Schafer, 535 F.3d 689, 692-696 (D.C. Cir. 2008).
Moreover, in Porter (decided after Burlington Northern) our
Court of Appeals made no finding that Melvin Porter had in fact
experienced a reduction in grade or salary. Instead the Court
found that "the rating and the PIP could expose him to removal,
reduction in grade, withholding of within grade increase or
reassignment." Porter, 606 F.3d at 818 (emphasis added).
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b. Threats of Demotion and Ter.mination
Plaintiff alleges that Ms. Bailey-Charles threatened him on
two occasions. First, on or about May 22, 2012, Ms. Bailey-
Charles "threatened to lower [Plaintiff]'s pay grade or put him
on a [PIP]." SAC ~ 15. Second, in a meeting on December 27, 2012
to discuss his annual performance evaluation, both Ms. Bailey-
Charles and Ms. Vaughn-Roach "threatened to terminate
[Plaintiff's] employment or demote him." SAC ~ 24.
The threats of demotion and termination were made during
conversations with Plaintiff about the PIP and "Marginal
Performance" evaluation. The threats--and their timing and
context--therefore, provide strong support to Plaintiff's
allegation that the "negative performance evaluation and the PIP
exposed [him] to removal or reassignment." SAC ~ 36.
c. Change in Duties and Proposed Change in
Job Description
Plaintiff relies exclusively on Burlington Northern to
support his argument that denial of the opportunity to attend
networking events and other meetings constituted an adverse
action. Pl. 's Opp' n at 11-12. That case, however, offers only
weak support for Plaintiff's position. 4 Burlington Northern
4
Plaintiff, however, is correct to point out that Burlington
Northern supersedes previous precedent in this Circuit that
would have required adverse actions that affect "the terms and
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involved the transfer of a forklift operator to a general
laborer position. There, "the jury had before it considerable
evidence that the track laborer duties were by all accounts more
arduous and dirtier; that the forklift operator position
required more qualifications, which is an indication of
prestige; and that the forklift operator position was
objectively considered a better job and the male employees
resented [the plaintiff] for occupying it." Burlington Northern,
548 U.S. at 71. The conduct Plaintiff alleges does not come
close to the conduct in Burlington Northern.
Our Court of Appeals has made clear its "hesitancy to
engage in judicial micromanagement of business practices by
second-guessing employers' decisions about which of several
qualified employees will work on a particular assignment."
Baloch v. Kempthorne, 550 F.3d 1191, 1197 (D.C. Cir. 2008); see
e.g., Taylor v. Solis, 571 F. 3d 1313, 1321 (D.C. Cir. 2009) (an
employer did not take an adverse action by "slow[ing] the
processing of [an employee's] cases and
require[ing] her . to submit biweekly reports on the status
of her work.") . Accordingly, it has held that an employee did
not suffer "materially adverse consequences" when he "no longer
conditions of employment" in order to make out a retaliation
claim. Steele v. Schafer, 535 F.3d 689, 692-696
``````````~
(D.C. Cir.
2008) .
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attended management meetings or received management-related e-
mails and other communications" for "several months [.]" Forkkio
v. Powell, 306 F.3d 1127, 1131 (D.C. Cir. 2002).
Plaintiff must show that the change in his duties were not
just "petty slights" but "could well dissuade a reasonable
worker from making or supporting a charge of discrimination."
Burlington Northern, 548 u.s. at 57, 68. Denial of the
opportunity to attend networking events and meetings falls short
of that requirement.
Finally, Plaintiff states that the proposed change in job
description, if it had come to pass, "would have been more
onerous, or would have involved 'duties that are less desirable
than others.'" Pl.'s Opp. at 12 (quoting Burlington Northern,
548 U.S. at 70) . However, he offers no factual allegations to
support his speculation. "Alleged harms" that fall short of
"firing or a significant change in benefits" "must not be unduly
speculative." Bridgeforth v. Jewell, 721 F.3d 661, 663 (D.C.
Cir. 2013) (internal citations and quotation marks omitted) .
Consequently, the change in duties and proposed change in job
description do not, as alleged, constitute adverse actions.
d. Bullying and Intimidation
Finally, Plaintiff contends that he felt "intimidated" and
"bull[ied]" in a meeting with Ms. Bailey-Charles and Ms. Vaughn-
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Roach. SAC ~ 21. Plaintiff's contentions, without more, are the
sort of "petty slights, minor annoyances, and simple lack of
good manners" that are not actionable as retaliation. Burlington
Northern, 548 U. 8. at 68. Moreover, our Court of Appeals has
held that even "disproportionate" "profanity-laden yelling" may
constitute the variety of "sporadic verbal altercations or
disagreements [that] do not qualify as adverse actions for
purposes of retaliation claims." Baloch, 550 F.3d at 1199.
Consequently, these allegations do not constitute adverse
action.
Although, not all of Defendant's alleged conduct rises to
the level of a materially adverse action, Plaintiff's
allegations related to the threats, negative performance review,
and PIP are enough to adequately plead his retaliation claim.
2. Causal Link Between the Adverse Action and the
Protected Activity
Defendant argues that because "Plaintiff [did] not allege
that [Ms.] Bailey-Charles or [Ms.] Vaughn-Roach specifically
linked his calendar entry to pay or the proposed PIP[,]" there
is no sufficient causal link between the protected activity and
alleged adverse action. Def.'s Mot. at 5. Defendant is mistaken.
A "causal connection may be established by showing that
the employer had knowledge of the employee's protected activity,
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and that the adverse . action took place shortly after that
activity." Rochon v. Gonzales, 438 F.3d 1211, 1220 (D.C. Cir.
2006) (quoting Mitchell v. Baldridge, 759 F.2d 80, 86 (D.C. Cir.
1985)); see also Alston v. D.C., 561 F. Supp. 2d 29, 43 (D.D.C.
2 008) ("a close temporal connection between the protected
activity and the adverse action can indeed support an inference
of causation.") (internal quotation marks omitted).
Defendant does not dispute that Plaintiff engaged in
protected activity when he scheduled a meeting with an EEO
counselor. Nor does Defendant dispute that the actual meeting
with the EEO counselor was protected. Ms. Bailey-Charles
demonstrated her knowledge of the protected activity and
threatened an adverse action in her May 22, 2012, conversation
with Plaintiff. SAC ~ 15. She took the threatened action by
placing Plaintiff on a PIP just over a month thereafter on June
26, 2012. SAC~ 18. Based on these allegations, there is no
question that a plausible causal relationship has been
adequately pleaded.
Defendant also argues that "[f]rom the facts alleged, it is
as likely that [P]laintiff was placed on a PIP because of
performance problems, as it is that it was retaliation for
seeing an EEO counselor." De£.' s Reply at 4. Plaintiff "is not
required, however, in order to state a claim of retaliation, to
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allege facts sufficient to negate [Defendant's] alternative
explanations for its actions-whatever they may turn out to be."
Rochon, 43 8 F. 3d at 122 0. Given that Plaintiff is entitled to
all reasonable inferences that arise from his allegations,
Aktieselskabet, 52 5 F. 3d at 17, it is more than reasonable to
infer that Ms. Bailey-Charles was retaliating against him
because of his EEO meeting. Plaintiff has sufficiently alleged
that he "engaged in protected activity, as a consequence of
which [his] employer took a materially adverse action against
[him]" and accordingly, has adequately pleaded his claim of
unlawful retaliation. Taylor, 571 F.3d at 1320.
C. Motion for Summary Judgment and Motion to Stay
In the alternative to its Motion to Dismiss, Defendant
requests Summary Judgment on Counts I and II of Plaintiff's
Complaint. Def. 's Mot. [Dkt. No. 18] . Plaintiff asks the Court
to deny Defendant's Motion for Summary Judgment as premature and
to treat the District's motion purely as a motion to dismiss.
Pl.'s Opp'n at 19 [Dkt. No. 22]. In the alternative, Plaintiff
requests a Stay to Obtain Discovery pursuant to Fed. R. Civ. P.
56(d). Pl.'s Mot. for a Stay to Obtain Disc. [Dkt. 21]
At the time of Defendant's Motion, no discovery had been
had by either party. Pl.'s Mot. for at Stay to Obtain Discovery
at 1. Ordinarily, that alone would make summary judgment
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premature. Hollabaugh v. Office of the Architect of the Capitol,
847 F. Supp. 2d 57, 60 (D.D.C. 2012) (holding that a motion for
summary judgment was premature in employment discrimination suit
where no discovery had been conducted). The Court notes,
moreover, that Defendant--prior to filing its Motion for Summary
Judgment--requested a stay of discovery. See Joint Status Report
(July 30, 2014) [Dkt. No. 27] . Our Court of Appeals has made
clear that "fundamentally, under the Federal Rules of Civil
Procedure, when a Rule 12(b) (6) motion to dismiss is converted
into a motion for summary judgment, all parties must be given a
reasonable opportunity to present all material made pertinent to
such a motion by Rule 56 [, and] it is settled that the term
'reasonable opportunity' includes the opportunity to pursue
reasonable discovery." First Chicago Int' l v. United Exch. Co. ,
Ltd. I 836 F.2d 1375, 1380-81 (D.C. Cir. 1988). Therefore,
Defendant's Motion for Summary Judgment is denied without
prejudice.
IV. CONCLUSION
For the foregoing reasons, Defendant's Motion to Dismiss is
granted in part and denied in part, Defendant's Motion for
Summary Judgment is denied without prejudice and Plaintiff's
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Motion for a Stay to Obtain Discovery is denied as moot. An
Order shall accompany this Memorandum Opinion.
August~, 2014
Judge
Copies to: attorneys on record via ECF
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