Melkumyan v. Power

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
GAGIK MELKUMYAN, :
:
Plaintiff, : Civil Action No.: 21-2700 (RC)
:
v. : Re Document No.: 5, 8
:
SAMANTHA POWER, ADMINISTRATOR :
OF USAID, :
:
Defendant. :
MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS AMENDED
COMPLAINT; DENYING AS MOOT DEFENDANT’S MOTION TO DISMISS ORIGINAL COMPLAINT
I. INTRODUCTION
Plaintiff Gagik Melkumyan served as a Regional Controller for three Missions of the
U.S. Agency for International Development (“USAID”): in Georgia, Armenia, and Azerbaijan.
However, in 2017, the Mission Director for Azerbaijan requested that he not provide support for
the Mission in that country, for the sole and explicit reason that Melkumyan is of Armenian
origin. Over the next three and a half years, Melkumyan was denied the ability to perform his
job duties related to the Azerbaijan Mission. He did not file an administrative complaint,
however, until he was denied a promotion in February 2021, which he claims occurred because
his inability to cover his full portfolio damaged his promotion application. For the reasons
explained below, the Court will allow Melkumyan’s claim to proceed, with some limitations.
II. FACTUAL BACKGROUND
During the relevant time period, Melkumyan worked as a Foreign Service Officer for
USAID based in Tbilisi, Georgia. Am. Compl. ¶ 6, ECF No. 7. USAID supports the United
States’ foreign policy through development and humanitarian assistance programs in over 100
countries worldwide. See Who We Are, USAID, https://www.usaid.gov/who-we-are. 1
Melkumyan’s position of Regional Controller involved “financial management and fiduciary
oversight of taxpayer-funded programs” in three countries: Georgia, Armenia, and Azerbaijan.
Am. Compl. ¶ 7. Part of his duties required travel to the Missions in those countries. Id.
In November 2017, the Mission Director for USAID in Azerbaijan, Mikaela Meredith,
met Melkumyan when she was in Tbilisi and learned that his national origin was Armenian. Id.
¶¶ 9–10. There is a long-running conflict between Azerbaijan and Armenia that is a major
source of instability in the region. See Azerbaijan, CIA World Factbook, https://www.cia.gov/
the-world-factbook/countries/azerbaijan/#introduction (last updated July 13, 2022). Meredith
requested that Melkumyan’s supervisor eliminate Melkumyan’s official duties for USAID in
Azerbaijan, specifically giving Melkumyan’s Armenian national origin as the reason. Am.
Compl. ¶¶ 12–13.
Melkumyan expressed his concern to management and subsequent supervisors about
having a third of his duties removed but was nonetheless not permitted to work on issues
concerning Azerbaijan over the next three and a half years. Id. ¶¶ 14–18. Also during that time
frame, Melkumyan unsuccessfully attempted to receive a diplomatic visa permitting him to
travel to Azerbaijan for essential job tasks. Id. ¶ 20. He alleges that upper-level management at
USAID did not assist him with obtaining that visa. Id. ¶¶ 19–21.
Melkumyan nonetheless excelled in his responsibilities over the remaining two countries
in his portfolio, Georgia and Armenia. Id. ¶ 24. As a result, he was recommended for a
1
The Court may take judicial notice of information posted on the official public websites
of government agencies at the motion to dismiss stage. See Pharm. Research & Mfrs. of Am. v.
U.S. Dep’t of Health & Human Servs., 43 F. Supp. 3d 28, 33 (D.D.C. 2014) (“Courts in this
jurisdiction have frequently taken judicial notice of information posted on official public
websites of government agencies.” (citations omitted)).
2
promotion in the 2020 and 2021 evaluation cycles. Id. In February 2021, Melkumyan was
denied a promotion, allegedly because he was ranked against peers who had been able to perform
the full portfolio of their duties. Id. ¶ 26. Melkumyan then filed a charge with USAID’s Office
of Civil Rights and Diversity alleging discrimination on the basis of his national origin going
back to 2017. Id. ¶¶ 31–32. The agency released a Report of Investigation in September 2021,
and final action had not yet been taken when the action was filed in this Court. Id. ¶¶ 33–34.
III. LEGAL STANDARD
On a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1),
the plaintiff bears the burden of establishing by a preponderance of the evidence that the court
has subject matter jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).
Because subject matter jurisdiction focuses on the court’s power to even hear the claim, a court
is to apply closer scrutiny when resolving a Rule 12(b)(1) motion compared to a Rule 12(b)(6)
motion for failure to state a claim. See Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 913
(D.C. Cir. 2015).
In contrast, a motion to dismiss under Rule 12(b)(6) does not test a plaintiff's likelihood
of success on the merits, but rather “tests the legal sufficiency of a complaint” by asking whether
the plaintiff has properly stated a claim for which relief can be granted. Fed. R. Civ. P. 12(b)(6);
Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). The complaint must be construed
“liberally in the plaintiff’s favor with the benefit of all reasonable inferences derived from the
facts alleged.” Stewart v. Nat’l Educ. Ass’n, 471 F.3d 169, 173 (D.C. Cir. 2006) (citing Kowal v.
MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
3
Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements,” are insufficient to withstand a motion to dismiss. Id.A court need not accept a plaintiff’s legal conclusions as true, id., nor must a court presume the
veracity of legal conclusions that are couched as factual allegations, Twombly, 550 U.S. at 555.
“In determining whether a complaint fails to state a claim, [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 [the Court] may take judicial notice.” EEOC v. St. Francis Xavier
Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997) (citation omitted).
IV. ANALYSIS
The parties characterize the series of events in the amended complaint very differently.
The Government describes it as three discrete events—the failure of the agency to assist
Melkumyan in obtaining a visa to Azerbaijan, the reassignment of his duties of Azerbaijan, and
the denial of his promotion. Def.’s Mot. Dismiss or in Alt. Summ. J. (“Mot. Dismiss”) at 4–5,
ECF No. 8-1. 2 According to the Government, any failure to assist with the visa is unreviewable
under the political question doctrine, any claim regarding portfolio reassignment is time-barred
and not an adverse action, and the denial of the promotion was not based on Melkumyan’s
national origin by his own admission. Id. In contrast, Melkumyan claims that his exclusion
from one-third of his duties was part of an ongoing pattern of discrimination that culminated in,
2
The Government’s first motion to dismiss was filed on December 27, 2021. See Mot.
Dismiss, ECF No. 5. Rather than responding, Melkumyan filed an amended complaint as of
right within 21 days of that motion. See Am. Compl.; Fed. R. Civ. P. 15(a)(1)(B). Because the
amended complaint supersedes the original complaint and a new motion to dismiss pertaining to
the operative amended complaint has been filed, the Court denies the original motion to dismiss
as moot. See Adams v. Quattlebaum, 219 F.R.D. 195, 197 (D.D.C. 2004) (denying a motion to
dismiss that “pertain[ed] to the original and now-superseded complaint”); Bancoult v.
McNamara, 214 F.R.D. 5, 13 (D.D.C. 2003) (same).
4
and only became actionable with, the denial of the promotion. Opp’n to Mot. Dismiss Alt.
Summ. J. (“Opp’n”) at 1, 7–8, n.3, ECF No. 9.
As Melkumyan clarifies, the allegations in the amended complaint relating to the denial
of Melkumyan’s visa by the government of Azerbaijan and USAID’s failure to invoke 22 U.S.C.
§ 2426(b), which prohibits the use of economic development funds “to any country which
objects to the presence of any officer or employee of the United States who is present in such
country for the purpose of carrying out any program of economic development assistance . . . on
the basis of the race, religion, national origin, or sex of such officer or employee,” are provided
only as “background and context” for the discriminatory actions that his own supervisors and
colleagues took. See 22 U.S.C. § 2426(b) (cited in Opp’n at 7). Accordingly, the Court
fortunately has no need to delve into the “murky and unsettled” political question doctrine. See
Harbury v. Hayden, 522 F.3d 413, 418 (D.C. Cir. 2008) (quoting Tel–Oren v. Libyan Arab
Republic, 726 F.2d 774, 803 n.8 (D.C. Cir. 1984) (Bork, J., concurring)).
With respect to the remaining events, the Court agrees with the Government that
Melkumyan fails to state a claim for a hostile work environment or a continuing violation. The
Court will, however, allow Melkumyan’s discriminatory non-promotion claim to proceed.
A. The Reduction of Duties
Melkumyan’s difficulties began when he was relieved of responsibility over a third of his
assigned portfolio that corresponded to the USAID Mission in Azerbaijan because of his
Armenian national origin. Am. Compl. ¶¶ 11–13. The Government argues that Melkumyan
failed to timely exhaust administrative remedies with respect to this action. 3 Specifically, the
3
“A motion to dismiss on the ground that a plaintiff failed to exhaust her administrative
remedies properly is analyzed under Rule 12(b)(6).” Jones v. Bush, 160 F. Supp. 3d 325, 337
5
reduction of Melkumyan’s duties over the Azerbaijan Mission occurred in November 2017, and
Melkumyan did not initiate contact with an agency counselor until February 2021—well after the
45-day time period required by regulation. See Mot. Dismiss at 11 (citing 29 C.F.R.
§ 1614.105(a)(1)). Melkumyan instead counters that the reduction of his duties was a continuing
violation that created a hostile work environment and culminated in the denial of a promotion in
February 2021. Opp’n at 13.
When determining whether administrative exhaustion was timely, courts generally begin
by “analyz[ing the] Plaintiff’s claims to determine whether they fall into the category of discrete
or ongoing discriminatory acts.” Gordon v. Napolitano, 786 F. Supp. 2d 82, 84 (D.D.C. 2011).
Discrete acts “such as termination, failure to promote, denial of transfer, or refusal to hire” must
be exhausted within the applicable statutory period, whereas hostile work environment claims
are actionable if any of the alleged hostile actions occurred within the limitations period because
“[s]uch claims are based on the cumulative effect of individual acts” and therefore “cannot be
said to occur on any particular day.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114–
115 (2002).
The reduction of Melkumyan’s duties was a discrete act. It occurred on a single day—
November 9, 2017, to be exact—when Melkumyan’s supervisor made the decision to remove the
portions of his portfolio relating to Azerbaijan. See Am. Compl. ¶¶ 9, 12–13. Melkumyan was
immediately aware of the reassignment of his duties and the reason for it. Id. Although the
decision was subsequently adhered to, and therefore had continuing effects over a longer period
of time, the same can also be said of classically discrete actions such as the “failure to promote”
(D.D.C. 2016) (citation omitted), aff’d, No. 16-cv-5103, 2017 WL 2332595 (D.C. Cir. Feb. 21,
2017).
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or “denial of transfer.” See Morgan¸ 536 U.S. at 114; see also Chin v. Port Auth. of New York &
New Jersey, 685 F.3d 135, 157 (2d Cir. 2012) (determining that Morgan forecloses untimely
failure-to-promote claims even if they result from an ongoing policy).
Perhaps recognizing this flaw, Melkumyan argues that his claim only ripened when “the
consequences of the reduction of his duties manifested in his denial of promotion.” Opp’n at 1;
see also id. at 18 (“[W]ithout an adverse employment action, [Melkumyan] was compelled to
wait until after he learned that he was not promoted to initiate his EEO charge.”). 4 But just a
connection to present consequences is not enough to resurrect time-barred discrete actions. See
Taylor v. FDIC, 132 F.3d 753, 765 (D.C. Cir. 1997) (holding that an untimely suit “cannot be
revived by pointing to effects within the limitations period of unlawful acts that occurred earlier”
(citations omitted)).
Taylor v. FDIC addressed an allegedly retaliatory reassignment to an undesirable unit
prior to the limitations period. Id. at 765. There, the D.C. Circuit rejected the plaintiffs’
argument that the continuation of “their grim working conditions” within the limitations period
4
The Court need not address the Government’s alternative argument that merely
reassigning duties is not an adverse action, see Mot. Dismiss at 13, although it is skeptical that
the removal of one-third of Melkumyan’s job duties can be fairly considered a mere
“reassignment,” particularly where those duties were not replaced with other responsibilities and
did not result from an increase in the overall workforce or a department-wide reorganization.
See Baloch v. Kempthorne, 550 F.3d 1191, 1197 (D.C. Cir. 2008) (determining that no adverse
action had occurred where the reduction of the plaintiff’s duties was the result of the agency
expanding its staffing levels to full force after a budget freeze); Holcomb v. Powell, 433 F.3d
889, 902 (D.C. Cir. 2006) (concluding that a factfinder could determine an adverse action had
occurred where the plaintiff “experience[d] an extraordinary reduction in responsibilities” over
two years in which she “was performing tasks commensurate with . . . six grades below [her]
position” despite not suffering “a reduction in grade, pay, or benefits”). The Court also notes
that the Government’s alternative argument has been further weakened by the recent en banc
decision in Chambers v. District of Columbia, which determined that a discriminatory lateral
transfer, or the discriminatory denial thereof, affects the “terms, conditions, or privileges of
employment” within the meaning of Title VII regardless of whether it causes an “objectively
tangible harm.” 35 F.4th 870, 872–73 (D.C. Cir. 2022) (en banc).
7
was an actionable continuing violation because their “banishment . . . amply manifested itself as
a possible retaliation from the start.” Id. As the court explained, “a continuing violation is ‘one
that could not reasonably have been expected to be made the subject of a lawsuit when it first
occurred because its character as a violation did not become clear until it was repeated during the
limitations period . . . .’” Id. (citations omitted); see also Schrader v. Tomlinson, 311 F. Supp. 2d
21, 27 (D.D.C. 2004) (“[A] plaintiff may not rely on the continuing violation theory where she
was aware of the discriminatory conduct at the time it occurred.”). Here, construing all
allegations in the complaint as true, the removal of Melkumyan’s duties was immediately
identifiable as a discrete discriminatory action. And it is axiomatic that “discrete discriminatory
acts are not actionable if time barred, even when they are related to acts alleged in timely filed
charges.” Morgan, 536 U.S. at 113.
Melkumyan does not respond to the Government’s discussion of Taylor v. FDIC at all,
instead pivoting in his opposition brief to follow the well-worn path laid out in Morgan by
arguing that Meredith’s decision to exclude him from his duties relating to the Azerbaijan
Mission—and the agency’s ongoing adherence to that decision—created a hostile work
environment. Opp’n at 13. “The Morgan principle is not, however, an open sesame to recovery
for time-barred violations. Both incidents barred by the statute of limitations and ones not barred
can qualify as ‘part of the same actionable hostile environment claim’ only if they are adequately
linked into a coherent hostile environment claim . . . .” Baird v. Gotbaum, 662 F.3d 1246, 1251
(D.C. Cir. 2011) (quoting Morgan, 536 U.S. at 120–21)). But the Government is correct that
Melkumyan has failed to state a claim for a hostile work environment.
“To prevail on a hostile work environment claim, a plaintiff must first show that he or she
was subjected to ‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently severe or
8
pervasive to alter the conditions of the victim’s employment and create an abusive working
environment.’” Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 577 (D.C. Cir. 2013) (quoting Harris
v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). Courts evaluate whether a hostile work
environment exists by looking to the totality of the circumstances, including “the frequency of
the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a
mere offensive utterance; and whether it unreasonably interferes with an employee’s work
performance.” Morgan, 536 U.S. at 116. The environment must be both “objectively hostile or
abusive” and “subjectively . . . abusive.” Harris, 510 U.S. at 21–22; see also Hill v. Assocs. for
Renewal in Educ., Inc., 897 F.3d 232, 237 (D.C. Cir. 2018). “The key terms . . . are ‘severe,’
‘pervasive,’ and ‘abusive,’ as not just any offensive or discriminatory conduct rises to an
actionable hostile work environment.” Nurriddin v. Bolden, 674 F. Supp. 2d 64, 93 (D.D.C.
2009) (emphasis added).
First, it does not appear that Melkumyan exhausted a hostile work environment claim.
To be sure, courts do not require a plaintiff to raise that claim by name or to use specific “magic
words” in order to exhaust it. See Congress v. District of Columbia, 324 F. Supp. 3d 164, 171
(D.D.C. 2018); Whorton v. Washington Metro. Area Transit Auth., 924 F. Supp. 2d 334, 348
(D.D.C. 2013). But there must be enough of a suggestion of such a charge that the agency would
be on notice and able to investigate it. See Marshall v. Fed. Exp. Corp., 130 F.3d 1095, 1098
(D.C. Cir. 1997) (“A vague or circumscribed EEOC charge will not satisfy the exhaustion
requirement for claims it does not fairly embrace . . . [because this] would circumvent the
EEOC’s investigatory and conciliatory role, as well as deprive the charged party of notice of the
charge.” (internal quotation marks and citations omitted)). In the Affidavit of the Complaint,
9
attached to the first motion to dismiss,5 Melkumyan does not include any facts that would tend to
show hostility in his working environment. The administrative complaint was not submitted by
either party, but Melkumyan’s only allegation in that respect is that he “alleged a continuing
violation, and identified facts dating back to 2017 when Meredith originally discriminated
against him.” Am. Compl. ¶ 32. It says nothing about raising a hostile work environment to the
agency’s attention.
What’s more, the Amended Complaint filed in this Court does not state a claim for a
hostile work environment. See Taylor v. Mills, 892 F. Supp. 2d 124, 137 (D.D.C. 2012)
(rejecting a plaintiff’s attempt to add a hostile work environment claim in an opposition brief
even though the complaint included words like “harass[],” “abusive,” “humiliat[ing],” and
“embarrass[ing]” (internal citation omitted)). Like the plaintiff in Taylor v. Mills, Melkumyan
included only one count (discrimination on the basis of national origin) and did not include a
separate hostile environment claim. See id. And unlike the plaintiff in Taylor v. Mills,
Melkumyan did not even allege that any of the actions were hostile, abusive, or any such similar
adjectives. Id.; see also Reshard v. LaHood, 443 F. App’x 568, 570 (D.C. Cir. 2011) (rejecting a
plaintiff’s attempt to resurrect a hostile work environment claim even though it likely had been
exhausted in the administrative level because it was not raised or litigated until appeal);
Rospendowski v. Columbia Cnty. Sheriff, No. 4:16-cv-00526, 2020 WL 5602967, at *3 (M.D. Pa.
Sept. 18, 2020) (“[I]n the absence of a claim specifically pleading a hostile work environment, it
5
In employment discrimination cases, “courts may typically refer to administrative
records of Equal Employment Opportunity complaints, investigations, and adjudications for the
limited purpose of determining whether Plaintiff exhausted administrative remedies before suing
without converting the Motion to Dismiss into a Motion for Summary Judgment . . . .” Roberts
v. Scalia, 1:19-cv-00474, 2020 WL 1892057, at *3 n.2 (D.D.C. Apr. 16, 2020).
10
is not appropriate to infer the existence of a hostile work environment claim from the averment
of facts in support of a disparate treatment claim.”).
Melkumyan’s argument centers entirely on his allegations that the exclusion from any
duties related to Azerbaijan was ongoing and pervasive. Opp’n at 14, 16–17. But not all
ongoing conduct is necessarily hostile. The Court draws the inference in favor of Melkumyan
(as it must at this stage) that his exclusion from duties related to Azerbaijan was subjectively
offensive. But even so, none of his factual allegations allow the Court to infer that the alleged
acts rose to the kind of “extreme” objective conditions that constitute a hostile work
environment. Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). Being excluded from
certain tasks and told to “stand down,” see Am. Compl ¶¶ 17–18, falls well short of the
“discriminatory intimidation, ridicule, and insult” “creat[ing] an abusive working environment”
that is required for a hostile work environment claim, Harris, 510 U.S. at 21 (citations omitted).
Nor does the denial of the promotion raise the claim to the level of a cohesive hostile
environment, even when considered alongside the reduction in responsibility. See Whorton, 924
F. Supp. 2d at 354 (collecting cases in which denials of training and non-selection were
insufficient to state a claim for a hostile work environment); Laughlin v. Holder, 923 F. Supp. 2d
204, 220–21 (D.D.C. 2013) (dismissing a hostile work environment claim as insufficiently
severe even though the “defendant’s actions made [plaintiff’s] job more difficult[,] . . . hurt her
reputation and undermined her leadership” and even though plaintiff argued that “serving as
[supervisor] of the same division for more than seven years while nearly all of one’s peers are
promoted can be ‘objectively and subjectively humiliating’”); Nurriddin, 674 F. Supp. 2d at 94(dismissing hostile work environment claim alleging opposition to career advancement, close
scrutiny of assignments, removal of important assignments, denial of transfer, lowered
11
performance evaluations, and “fail[ure] to provide support for his work with staffing and
funding”).
In sum, Melkumyan’s claim of national origin discrimination based on the removal of his
responsibilities for the Azerbaijan Mission is untimely, and he cannot belatedly save it by
shoehorning it into a hostile work environment claim that he did not plead. See Arbitraje Casa
de Cambio, S.A. de C.V. v. U.S. Postal Serv., 297 F. Supp. 2d 165, 170 (D.D.C. 2003) (“It is
axiomatic that a complaint may not be amended by the briefs in opposition to a motion to
dismiss.” (citation omitted)). Accordingly, the Court will grant the Government’s Motion to
Dismiss with respect to the claim related to the removal of those duties.
B. The Failure to Promote
That leaves the final alleged event, the denial of a promotion to the FS-02 level in
February 2021. Am. Compl. ¶ 25. The Government does not dispute that this claim was
administratively exhausted within the applicable time limit, but it argues that Melkumyan has
conceded a lack of discriminatory intent on the part of the Promotion Board. Mot. Dismiss at
14. 6 Melkumyan counters that his eligibility for the promotion was “hampered” by the
preceding discrimination and was a direct cause of it. Am. Compl. ¶ 27; Opp’n at 19.
6
The Government asks the Court to convert the motion to dismiss into one for summary
judgment, perhaps because of its reliance on Melkumyan’s statement in his administrative
Affidavit that “I do not believe that the Promotion Board engaged in discrimination against me
based on my Armenian national origin.” Mot. Dismiss at 14 (citing Pl’s Aff., Ex. 1 of 1st Mot.
Dismiss). Although courts routinely take judicial notice of EEO complaints and charging
documents without converting motions to dismiss “[i]n the context of exhaustion,” see Sierra v.
Hayden, 254 F. Supp. 3d 230, 237 (D.D.C. 2017) (collecting cases), here the Government is
asking the Court to consider a portion of the Report of Investigation for its evidentiary value with
respect to discriminatory intent. The Court declines to do so. In any event, the proffered
evidence is duplicative of Melkumyan’s position in the Amended Complaint and briefing,
making conversion unnecessary.
12
“To establish a prima facie case of discriminatory non-promotion, the plaintiff must show
that: ‘(1) he is a member of a protected class; (2) he applied for and was qualified for an
available position; (3) despite his qualifications he was rejected; and (4) either someone . . . filled
the position or the position remained vacant and the employer continued to seek applicants.’”
Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. Cir. 2003) (citation omitted). In the typical case,
the burden would then shift to the employer to articulate a legitimate, nondiscriminatory reason
for the non-promotion, and then back to the employee to show pretext. Id. Unfortunately, the
cases cited by both parties, which relate to whether and how discriminatory intent can be inferred
in the decisionmaker under this burden-shifting format, are imprecise here because this is not the
typical case. Instead, Melkumyan advances the atypical theory that the earlier discrimination
“tainted” the promotion decision even though the decisionmakers did not themselves directly
discriminate on the basis of his national origin. Opp’n at 19–20. He urges the Court not to
“permit this agency . . . to engage in illegal discrimination through one set of its employees, then
‘cleanse’ the agency of its illegal conduct by having another set of employees, who are
themselves not discriminating, impose an ‘adverse action’ upon a plaintiff while relying upon
(even unwittingly) the fruits of the earlier illegal discrimination.” Id. at 19.
Although the precedent cited by Melkumyan misses the mark, the theory he articulates
corresponds to what is often referred to in the relevant jurisprudence as the “cat’s paw” theory. 7
In Staub v. Proctor Hospital, the Supreme Court addressed a situation in which the plaintiff’s
supervisors issued a baseless disciplinary reprimand out of a discriminatory animus that was then
relied on by the decisionmaker who ultimately terminated him. 562 U.S. 411, 414–15 (2011).
7
“The term ‘cat’s paw’ derives from a fable conceived by Aesop, put into verse by La
Fontaine in 1679, and injected into United States employment discrimination law by Judge
Posner in 1990.” Staub v. Proctor Hosp., 562 U.S. 411, 416 (2011).
13
Staub dealt with the Uniformed Services Employment and Reemployment Rights Act
(USERRA), which prohibits employment discrimination on the basis of military obligations in
similar language to Title VII. See id. at 416–17 (comparing the language of 38 U.S.C. § 4311(c)
to the language of 42 U.S.C. § 2000e-2(a), (m)). The Supreme Court held that “if a supervisor
performs an act motivated by antimilitary animus that is intended by the supervisor to cause an
adverse employment action, and if that act is a proximate cause of the ultimate employment
action, then the employer is liable under USERRA.” Id. at 422 (footnotes omitted).
The cat’s-paw theory has been applied in other employment discrimination contexts as
well. See Morris v. McCarthy, 825 F.3d 658, 668–69 (D.C. Cir. 2016) (discriminatory
suspension under Title VII); Heller v. Elkins, 340 F. Supp. 3d 18, 31–32 (D.D.C. 2018)
(retaliation claim under Title VII); Duncan v. Johnson, 213 F. Supp. 3d 161, 191 (D.D.C. 2016)
(same); see also Walker v. Johnson, 798 F.3d 1085, 1095 (D.C. Cir. 2015) (noting the potentially
overlooked application of the cat’s paw theory in a Title VII discrimination case). To prevail on
a cat’s-paw theory of discrimination, the employee should show that “[1] [the] supervisor
performs an act motivated by [discriminatory] animus [2] that is intended by the supervisor to
cause an adverse employment action, and . . . [3] that act is a proximate cause of the ultimate
employment action.” Morris, 825 F.3d at 668 (quoting Staub, 562 U.S. at 422). Similarly, this
Circuit has long held that “Title VII is violated when an employing organization uses
discriminatory evaluations of an employee which were prepared by its own supervisory
personnel, unless its procedures have given the employee a reasonable opportunity to inspect and
correct these evaluations.” Stoller v. Marsh, 682 F.2d 971, 976 (D.C. Cir. 1982); see also
Johnson v. Gen. Elec., 840 F.2d 132, 135 (1st Cir. 1988) (favorably citing Stoller in support of
the determination that “the application of a discriminatory system to a particular substantive
14
decision (e.g., to promote, demote, fire, or award benefits) constitutes an independent
discriminatory act which can trigger the commencement of the statute of limitations”), abrogated
on other grounds by Clockedile v. New Hampshire Dep’t of Corr., 245 F.3d 1 (1st Cir. 2001).
When drawing all inferences in Melkumyan’s favor, the Court determines that there is
enough factual matter in the Amended Complaint to survive the motion to dismiss phase under
this theory. The Amended Complaint alleges in no uncertain terms a discriminatory motive for
the restriction of Melkumyan’s duties, satisfying the first element. See Am. Compl. ¶ 13; cf.
Burley v. Nat’l Passenger Rail Corp., 801 F.3d 290, 297 (D.C. Cir. 2015) (considering the
applicability of a cat’s paw claim to a supervisor’s investigation and report of a train accident but
rejecting it because there was no evidence of discriminatory animus in the supervisor who
prepared the report).
The second element is a closer call. It is unclear whether Meredith and the supervisors
who enforced her decision intended to deprive Melkumyan of a promotion, both because the
decision significantly predated his non-promotion and because his supervisors in fact
recommended him for a promotion. See Am. Compl. ¶ 26. Still, Meredith’s actions had the
alleged effect of depriving Melkumyan the “building blocks” needed for a later promotion, and a
factfinder could reasonably infer that she and the other supervisors understood that to be the
practical impact of her decision at the time. See Bryson v. Chicago State Univ., 96 F.3d 912, 917
(7th Cir. 1996) (“Depriving someone of the building blocks for such a promotion . . . is just as
serious as depriving her of the job itself.”); see also Contreras v. Ridge, 305 F. Supp. 2d 126,
133–34 (D.D.C. 2004) (determining that a plaintiff class had sufficiently exhausted claims
related to discrimination in “career-enhancing opportunities” such as training, assignments,
transfers, and awards because “[a]ny EEOC investigation of the denial of promotions claim
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would necessarily involve investigation into the building blocks of promotion”). At this early
stage of the litigation, the Court is willing to allow Melkumyan the opportunity to develop this
argument further.
Finally, Melkumyan alleges that “he was denied promotion to FS-02 as a direct and
proximate result of the national origin discrimination carried out by Defendant.” Am. Compl.
¶ 25. That allegation, while admittedly conclusory, is plausible enough in light of the foregoing
factual allegations. Causation is normally a question of fact for the jury. Payne v. District of
Columbia, 741 F. Supp. 2d 196, 219 (D.D.C. 2010), aff’d, 722 F.3d 345 (D.C. Cir. 2013). And
as Melkumyan points out, without discovery there is no way to know what information the
Promotion Board considered in its ranking and whether the reduction of his duties had an impact
on his ranking. Opp’n at 20. Accordingly, the Court will allow Melkumyan’s claim for
discriminatory non-promotion to go forward.
V. CONCLUSION
For the foregoing reasons, Defendant’s Second Motion to Dismiss (ECF No. 8) is
GRANTED IN PART AND DENIED IN PART and Defendant’s First Motion to Dismiss
(ECF No. 5) is DENIED AS MOOT. An order consistent with this Memorandum Opinion is
separately and contemporaneously issued.
Dated: July 22, 2022 RUDOLPH CONTRERAS
United States District Judge
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