Ryan-White v. Bryson , 922 F. Supp. 2d 19 ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JEWELL RYAN-WHITE,
Plaintiff,
Civil Action No. 12-177 (BAH)
v.
Judge Beryl A. Howell
REBECCA BLANK,
Acting United States Secretary of Commerce,
Defendant.
MEMORANDUM OPINION
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.
I. BACKGROUND
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
1
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. 1
On October 14, 2009, after beginning work with the Philadelphia Census office, the
plaintiff was relocated to the District of Columbia Partnership office. Id. ¶ 13. After this transfer
occurred, the plaintiff alleges that she “became increasingly concerned about numerous . . .
instances of disparate treatment by Mr. Armstrong and Mr. Roman.” Id. ¶ 14. In particular,
between October 2009 and March 2010, the plaintiff alleges that she was discriminated against
by Messrs. Armstrong and Roman by, inter alia, being “subjected to unwarranted criticism and
threats of disciplinary action.” Id. ¶¶ 13–16. As a result of this perceived discriminatory
conduct, the plaintiff “sent a grievance complaining of discrimination by Mr. Armstrong and Mr.
Roman” to a superior official in the Census Bureau and subsequently “made initial contact with
an EEO Counselor on March 23, 2010.” Id. ¶ 17. The plaintiff alleges that she submitted a
formal EEO complaint on April 26, 2010, and the EEO accepted her claims on June 11, 2010.
Id. ¶¶ 17, 25.
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
1
The plaintiff is an African American female, Mr. Armstrong is a white Hispanic male, and Mr. Roman is a
Caucasian male. See Compl. ¶¶ 4, 6–7.
2
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
3
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 plaintiff for engaging in statutorily protected
activity, in violation of Title VII. See Compl. ¶¶ 53–62. Currently pending before the Court is
the defendant’s motion to dismiss or, in the alternative, motion for summary judgment. For the
reasons discussed below, the Court denies the defendant’s motion.
II. LEGAL STANDARDS
A. Motion to Dismiss
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
(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
(2009) (alteration in original) (quoting Twombly, 550 U.S. at 557). 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). “[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.
4
November 2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir. 2008) (citations and internal
quotation marks omitted). 2
B. Conversion to Motion for Summary Judgment
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 further discovery. See 5C CHARLES ALAN
WRIGHT, et al., FEDERAL PRACTICE & PROCEDURE (“WRIGHT & MILLER”) § 1366 (3d ed. 2012).
Thus, there is no bright-line threshold for conversion under Rule 12(d); the touchstone is fairness
and whether consideration of summary judgment is appropriate, in light of the nature of the
2
The plaintiff cites the more lenient standard governing motions to dismiss under Rule 12(b)(6) set forth in Conley
v. Gibson, 355 U.S. 41, 47 (1957). See Pl.’s Opp’n at 9. The Supreme Court, however, has “abrogated the Conley
formulation in [Twombly, 550 U.S. at 562–63].” Jones v. Horne, 634 F.3d 588, 596 n.4 (D.C. Cir. 2011).
5
extra-pleading material submitted, the parties’ access to sources of proof, and the parties’
concomitant opportunity to present evidence in support or opposition to summary judgment. See
id.; see also, e.g., White v. Vilsack, No. 11-1763, 2012 WL 3715394, at *5 (D.D.C. Aug. 29,
2012) (declining to convert to summary judgment because “the current record is not sufficiently
developed to allow a determination as to whether a genuine dispute of material fact exists”). If a
non-moving party is able to “show[] by affidavit or declaration that, for specified reasons, it
cannot present facts essential to justify its opposition” to summary judgment, a court may defer
consideration of the motion; deny the motion; or permit the non-moving party time to take
discovery or obtain other extra-pleading material in opposition to summary judgment. See FED.
R. CIV. P. 56(d).
C. Title VII Retaliation
“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 (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 (1993)). “[A] plaintiff alleging retaliation faces a low burden at the motion to
6
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:
After the employer offers a non-discriminatory justification for its actions, the
McDonnell Douglas framework falls away, and [the court] must determine whether a
reasonable jury “could infer discrimination from the combination of (1) the plaintiff’s
prima facie case; (2) any evidence the plaintiff presents to attack the employer’s
proffered explanation for its actions; and (3) any further evidence of discrimination
that may be available to the plaintiff.”
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, “the sole remaining issue [is] ‘discrimination vel non.’” Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 143 (2000) (quoting U.S. Postal Serv. Bd. of Governors v.Aiken, 460
U.S. 711, 714 (1983)). The McDonnell Douglas framework, however, “function[s] as a means
of ‘arranging the presentation of evidence,’” not as a pleading standard. See Hicks, 509 U.S. at510 n.3 (emphasis added) (quoting Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 986
(1988)); see also McDonnell Douglas, 411 U.S. at 800 (“The critical issue before us concerns the
order and allocation of proof in a private, non-class action challenging employment
discrimination.” (emphasis added)). The Supreme Court has made clear that, at the motion-to-
dismiss stage, the question “[is] ‘not whether [the plaintiff] will ultimately prevail,’ . . . but
whether his complaint [is] sufficient to cross the federal court’s threshold.” Skinner v. Switzer,
131 S. Ct. 1289, 1296 (2011) (citation omitted) (citing Swierkiewicz v. Sorema N.A., 534 U.S.
506, 514 (2002)). Furthermore, since discovery may reveal direct evidence of discrimination, it
7
would be “incongruous to require a plaintiff, in order to survive a motion to dismiss, to plead
more facts than he may ultimately need to prove to succeed on the merits.” Swierkiewicz, 534
U.S. at 511–12; see also Twombly, 550 U.S. at 547 (rejecting the claim that the opinion’s
“analysis runs counter to Swierkiewicz”). The Twombly/Iqbal pleading standard only requires a
complaint to “state a facially plausible claim,” Rudder, 666 F.3d at 790 (emphasis added) (citing
Iqbal, 556 U.S. at 662), and does not require plaintiffs to anticipate defenses or justifications
presented to meet the plaintiff’s prima facie allegations.
III. DISCUSSION
A. The Court Will Not Convert the Defendant’s Motion to Dismiss into a
Motion for Summary Judgment.
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
(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
8
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 material that is pertinent to the
motion.”); Tele-Commc’ns of Key West, 757 F.2d at 1334 (requiring court to “assure itself that
summary judgment treatment would be fair to both parties” before converting motion to dismiss
to motion for summary judgment); WRIGHT & MILLER § 1366 (noting the importance of having
“comprehensive” extra-pleading evidence to convert to summary judgment, as opposed to
“scanty, incomplete, or inconclusive” evidence).
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. 3 The plaintiff goes on to list a
variety of matters that will require further discovery before the issue of discrimination vel non
will be ripe for consideration through a motion for summary judgment. See id. ¶¶ 4–13. In light
of the materials submitted by the plaintiff, the Court agrees that the plaintiff has not had a
“reasonable opportunity to present all material that is pertinent” to the issue of pretext, see FED.
R. CIV. P. 12(d), since the plaintiff in the instant action has had no opportunity for discovery
3
The plaintiff states that she submits this affidavit “pursuant to Fed. R. Civ. P. 56(f),” see Pl.’s Rule 56(f) Aff. ¶ 1,
however, the Federal Rules of Civil Procedure were amended in 2010, and as a part of those amendments the
provisions formerly contained in Rule 56(f) were moved to current Rule 56(d). See FED. R. CIV. P. 56 advisory
committee’s note (2010 Amendments).
9
beyond the administrative process, see Pl.’s Rule 56(f) Aff. ¶ 2. Therefore, the Court will not
consider any “matters outside the pleadings” and thereby will not convert the defendant’s motion
to dismiss into a motion for summary judgment. See FED. R. CIV. P. 12(d); accord Smith v. De
Novo Legal LLC, No. 12-296, 2012 WL 5873679, at *4 (D.D.C. Nov. 21, 2012) (denying motion
to dismiss retaliation claim before discovery had occurred, finding that whether defendant “had a
legitimate, non-discriminatory reason . . . is a fact-sensitive inquiry that can only be undertaken
after discovery has run its course”); Blue v. Jackson, 860 F. Supp. 2d 67, 78 (D.D.C. 2012)
(denying defendant’s motion for summary judgment without prejudice, finding summary
judgment “premature . . . before [the plaintiff] has been afforded any opportunity to develop facts
to support his argument of pretext”); Gray v. Universal Serv. Admin. Co., 581 F. Supp. 2d 47, 57
(D.D.C. 2008) (“[L]itigants in discrimination cases are ‘entitled to discovery before being put to
their proof, and treating the allegations of the complaint as a statement of the party’s proof leads
to windy complaints and defeats the function of Rule 8.’” (quoting Bennett v. Schmidt, 153 F.3d
516, 519 (7th Cir. 1998))).
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, however, warrants dismissal of the plaintiff’s
Complaint.
B. The Plaintiff Has Alleged an Adverse Employment Action.
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
10
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 anti-
discrimination 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 (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. 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, 131 S. Ct. 863, 868 (2011) (quoting
Burlington Northern, 548 U.S. at 68).
11
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” precludes the existence of an adverse employment action—is out of touch with
basic principles of employment law. See Def.’s Mem. at 24. The defendant’s argument in this
regard is premised on the fact that the possibility of being converted to intermittent status was
“written within the very terms and conditions of employment” and therefore “Plaintiff agreed to
this condition of employment prior to accepting the position.” Id. at 23–24. The fallacy in this
argument is that, just because the defendant indisputably retained the power to place an
employee on intermittent status says nothing of whether such an action was adverse within the
meaning of Title VII’s anti-retaliation provision. The defendant is essentially advocating for
some kind of “assumption of the risk” defense to employment discrimination claims, whereby an
employer could fire employees for impermissible reasons and then be immune from subsequent
12
Title VII claims so long as the employer first notified its employees that they could be fired. See,
e.g., Def.’s Reply in Supp. Mot. to Dismiss or in the Alternative Mot. for Summ. J. (“Def.’s
Reply”) at 5, ECF No. 15-1 (arguing that the plaintiff “was acutely aware of the inevitability that
her appointment would conclude at any time and would not be made permanent or converted to
an at-will position”); id. at 10 (“Plaintiff knowingly and voluntarily signed two documents that
put her on notice that her appointment may not last until the [Not to Exceed] date and her work
schedule could change at any time.”). This novel legal argument runs completely contrary to the
purposes of Title VII and the long line of cases interpreting that statute, and thus the Court
rejects it ab initio.
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. 4 Rather, there can be no doubt that placing the plaintiff on
intermittent status, which the plaintiff claims changed her “from being a full-time employee with
benefits to a non-paid employee with no benefits and no work,” Compl. ¶ 29, was an adverse
employment action. The plaintiff is correct to characterize such an action as the “effective[]
terminat[ion]” of her employment, see id., and the D.C. Circuit and other courts have long held
that termination and its functional equivalents are the quintessential examples of adverse
employment actions under Title VII. See, e.g., Douglas v. Donovan, 559 F.3d 549, 554 (D.C.
Cir. 2009) (calling “termination” an “obvious” adverse employment action); see also Strate v.
Midwest Bankcentre, Inc., 398 F.3d 1011, 1019 & n.8 (8th Cir. 2005) (holding that Title VII
4
This conclusion could potentially be different if a temporary employee were placed on intermittent status on the
NTE date, since an NTE date is essentially a predetermined end date for the temporary employment term. The
Court need not reach this question, however, since it is undisputed that the plaintiff in the instant action was placed
on intermittent status approximately two months prior to her NTE date.
13
plaintiff satisfied prima facie case where she “was effectively terminated . . . when she was told
that her position had been eliminated”). Indeed, even “the temporary deprivation of wages
counts as materially adverse action” for purposes of a Title VII retaliation claim. Taylor v. Solis,
571 F.3d 1313, 1321 (D.C. Cir. 2009) (emphasis added). The defendant is therefore badly
misguided in attempting to argue that entirely eliminating the plaintiff’s position (including her
salary and benefits) would not be an adverse employment action. The Court concludes that the
plaintiff’s factual allegations regarding her placement on intermittent status are sufficient to
qualify as an adverse employment action for purposes of her Title VII retaliation claim.
C. The Plaintiff Has Adequately Pleaded a Causal Connection Between Her
Protected Activity and the Alleged 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
14
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 prima facie case of retaliation. See
Hamilton, 666 F.3d at 1358 (“The [defendant] claims that [the plaintiff] failed to show that [the
15
supervisor who took the adverse employment action] knew of [the plaintiff’s] complaint, but at
the prima facie stage the fact that [the plaintiff] submitted the complaint to the agency is
sufficient.”). Regardless, the plaintiff has alleged that Messrs. Armstrong and Roman were
aware of her protected activity before they decided to convert her employment status, see Compl.
¶ 56, and the defendant admits as much in its opening brief, see Def.’s Mem. at 8.
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
16
“plausible on its face,” and therefore the allegations are sufficient to survive a motion to dismiss.
See Twombly, 550 U.S. at 570. 5
IV. CONCLUSION
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.
Date: February 13, 2013
/s/ Beryl A. Howell
BERYL A. HOWELL
United States District Judge
5
The plaintiff’s factual allegations further indicate that converting the defendant’s motion to dismiss into a motion
for summary judgment would be inappropriate because the evidence submitted by the defendant is not sufficiently
comprehensive to conclude that further discovery would be unnecessary to decide the question of discrimination vel
non. See supra Part III.A (discussing when it is appropriate to convert motion to dismiss into motion for summary
judgment). The plaintiff must be given a “reasonable opportunity” to present evidence in support of her factual
allegations regarding pretext before the Court can appropriately decide any motion for summary judgment premised
on the plaintiff’s failure to prove pretext. See FED. R. CIV. P. 12(d).
17