Ortiz-Diaz v. United States Department of Housing & Urban Development

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
SAMUEL ORTIZ-DIAZ )
)
Plaintiff, )
)
v. ) Civil No. 12-726 (RCL)
)
UNITED STATES DEPARTMENT )
OF HOUSING AND URBAN )
DEVELOPMENT, OFFICE OF THE )
INSPECTOR GENERAL )
)
Defendant. )
)
MEMORANDUM OPINION
Plaintiff Samuel Ortiz-Diaz brings this Title VII action against his former employer––
defendant U.S. Department of Housing and Urban Development, Office of the Inspector General
(“HUD-OIG”)––alleging retaliation and discrimination on the bases of race and national origin
when HUD-OIG denied his requests to transfer and excluded him from meetings. HUD-OIG
moves to dismiss for failure to state a claim or, in the alternative, summary judgment. Upon
consideration of this motion [5], Ortiz-Diaz’s opposition [6] thereto, and HUD-OIG’s reply [8],
the Court will GRANT the motion with respect to the retaliation claim and DENY the motion
with respect to the discrimination claims.
I. BACKGROUND
Ortiz-Diaz worked as a criminal investigator in HUD-OIG headquarters in Washington,
DC, from December 15, 2009, to January 1, 2011. While in this position, he testifies to having
been subjected to a pattern of discriminatory treatment because he is Hispanic and was born in
Puerto Rico. In 2010 he began seeking transfer to HUD-OIG field offices in the northeast in an
alleged attempt to leave the discriminatory environment and find better opportunities for career
advancement. His attempts were never successful, however, and Ortiz-Diaz grew very angry
over HUD-OIG’s denials.
Subsequently, in September 2010, Ortiz-Diaz claims that Assistant Inspector General for
Investigations John McCarty, ordered that Ortiz-Diaz no longer attend joint meetings with the
Department of Justice (“DOJ”) that he had previously been assigned to attend. Ortiz-Diaz
alleges that his exclusion from these meetings limited his training and opportunities for career
advancement by preventing him from interacting with employees of other agencies and generally
casting his reputation in a negative light.
Also, in October 2010, Ortiz-Diaz claims that he had a telephone conversation with
Special Agent-in-Charge Rene Febles who informed him that Region 2 (New York) needed
another Special Agent at the same pay grade as Ortiz-Diaz’s current position. Ortiz-Diaz then
requested that he be transferred to HUD-OIG’s office in Albany, New York, to fill this position.
While there was no investigative division in the Albany office, Ortiz-Diaz claims that other
HUD-OIG offices commonly allow employees in various divisions to share office space even if
their divisions do not have an official presence in those offices. Ortiz-Diaz’s request was passed
up the chain of command to McCarty who was the ultimate decision maker. Despite Febles’
alleged support of the transfer, McCarty denied the request on October 12, 2010. That same day,
Ortiz-Diaz allegedly spoke with McCarty and verbally requested another transfer to Hartford,
CT, in response to an announcement offering a position also at Ortiz-Diaz’s pay grade.
According to Ortiz-Diaz, McCarty verbally denied the request.
2
On November 2, 2010, Ortiz-Diaz filed a discrimination complaint with the Equal
Employment Opportunity Commission (“EEOC”), stating that the above events constituted
discrimination based on his “Hispanic” race and “Puerto Rican” national origin. In its Notice of
Acceptance, the EEOC stated that under its policy, “Hispanic” was defined as a national origin,
not a race, and that it would therefore only investigate for discrimination based on national
origin. Ortiz-Diaz’s counsel responded to this decision by objecting to the characterization of
“Hispanic” as only a national origin, and not a race, but stated, “given the method of proof
required to make a claim pursuant to Title VII, we see the distinction as insignificant.”
After 180 days had passed from the filing of the complaint without a final decision from
EEOC, Ortiz-Diaz filed this action in federal court pursuant to 42 U.S.C. § 2000e-16(c). In his
complaint before this court, he alleges an additional count of retaliation not previously specified
in his EEOC complaint, claiming that HUD-OIG’s decision to exclude him from meetings was in
response to his belief that he had been discriminated against. HUD-OIG now moves to dismiss
for failure to state a claim or, in the alternative, for summary judgment. Ortiz-Diaz opposes this
motion and seeks time for discovery, given that none has been conducted since he filed his civil
action before this court.
II. ANALYSIS
Title VII of the Civil Rights Act of 1964 protects employees from discrimination on the
basis of certain protected statuses, such as race and national origin, as well as retaliation in
response to employee conduct that opposes prohibited discrimination. University of Texas
Southwestern Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2525 (2013). Status-based discrimination
claims arise under 42 U.S.C. § 2000e-2(a)(1): “It shall be an unlawful employment practice for
an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to
3
discriminate against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s race . . . or national origin.” (emphasis
added). To succeed under this section, employees must prove that they suffered an adverse
employment action that was at least partially motivated by the employer’s animus to their
protected status. See 42 U.S.C. 2000e-2(m) (holding employer’s liable when these statuses were
a “motivating factor for any employment practice, even though other factors also motivated the
practice”).
Claims of retaliation are derived from 42 U.S.C. § 2000(e)-3, which provides in relevant
part, “[i]t shall be an unlawful employment practice for an employer to discriminate against any
of his employees . . . because [they] have opposed any practice made an unlawful employment
practice by this subchapter.” To succeed in this claim, employees must establish that (1) they
engaged in actions protected under this statute, that (2) these actions were a cause-in-fact of their
exclusion from the meetings, and that (3) the employer’s retaliation constituted an adverse
employment action. Nassar, 133 S.Ct. at 2534. Our review of both discrimination and
retaliation claims is de novo. Chandler v. Roudebush, 425 U.S. 840, 841 (1976).
A. Dismissal
1. Failure to State a Claim (Rule 12(b)(6))
The Federal Rules of Civil Procedure set a relatively low bar for complaints: they must
contain a “short and plain statement of the claim showing that the pleader is entitled to relief.”
Fed.R.Civ.P.8(a)(2). Given this liberal standard, dismissal under Rule 12(b)(6) is only
appropriate when a complaint does not allege enough facially plausible facts to permit the court
to reasonably infer that the defendant is liable for the alleged violation. Ashcroft v. Iqbal, 556
U.S. 662, 678–79; Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). For example,
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complaints that merely state unsupported legal conclusions or that formulaically recite the
elements of a cause of action without alleging sufficient facts to back up the action are properly
dismissed under Rule 12(b)(6). E.g., Iqbal 556 U.S. at 678–79. When deciding whether a
complaint satisfies this standard, courts are to construe the complaint, and draw all reasonable
inferences from it, in a light most favorable to the plaintiff, and to accept as true all of the
complaint’s plausible factual allegations. 5B CHARLES ALAN WRIGHT & ARTHUR R. MILLER,
FEDERAL PRACTICE AND PROCEDURE § 1357 (3d ed. 2008).
With specific reference to employment discrimination cases like this one, the Supreme
Court in Twombly emphasized that courts should not require complaints to contain more facts
than is necessary to “nudge[] [a] claim across the line from conceivable to plausible.” Twombly
550 U.S. at 569–70. Thus, they need not allege “specific facts beyond those necessary to state
[the] claim and the grounds showing entitlement to relief.” Id. (reaffirming its earlier holding in
Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) that complaints alleging employment
discrimination need not contain facts supporting each element of a cause of action in detail).
“[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 (emphasis added)). Moreover, our
circuit has, post-Twombly, been even more emphatic––“[b]ecause racial discrimination in
employment is a claim upon which relief can be granted, . . . ‘I was turned down for a job
because of my race’ is all a complaint has to state to survive a motion to dismiss under
Fed.R.Civ.P. 12(b)(6).” Potts v. Howard Univ. Hosp., 258 Fed.Appx. 346, 347 (D.C. Cir. 2007)
(alteration in original) (quoting Sparrow v. United Air Lines, Inc., 216 F.3d 111, 115 (D.C. Cir.
2000) (internal quotation marks omitted)); see also, Bryant v. Pepco, 730 F.Supp.2d 25, 29
(D.D.C. 2010) (observing this position).
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In support of its motion to dismiss for failure to state a claim, HUD-OIG provides the
court with nothing more than a conclusory allegation that “[t]he [p]laintiff is unable to provide
more than labels and conclusions, or assert a formulaic recitation of the elements of a cause of
action.” Def.’s Reply [8] at 2. After reviewing the complaint on its own, however, the court
finds it sufficient to withstand dismissal under 12(b)(6).
With respect to the status-based claims, the complaint makes specific allegations
regarding Ortiz-Diaz’s race and national origin (Am. Compl. ¶ 6), denied transfer requests
adversely affecting his career opportunities 1 (Id. at ¶¶ 7–9, 16–18), and instances in which other,
similarly situated employees outside his protected class had their transfer requests treated more
favorably. (Id. at ¶¶ 10–11, 16–17). Such allegations easily satisfy the standard for 12(b)(6).
The complaint is less specific with regard to the retaliation claim, yet still likely complies
with the permissive standard articulated by the Supreme Court and the D.C. Circuit. The
complaint contains sufficient facts for the court to infer that Ortiz-Diaz suffered an adverse
employment action when he was his excluded from meetings with DOJ. Am. Compl. ¶ 12.
However, it is less detailed in its explanation of how this exclusion was retaliatory. All it claims
is
McCarty was aware that [p]laintiff believed the transfer or reassignment denials
were discriminatory. Mr. McCarty was also aware that [p]laintiff was seeking a
new position because he believed Mr. McCarty subjected him to discrimination.
[p]laintiff discussed his new position with his immediate supervisors, who in turn
discussed the issues with Mr. McCarty. Am. Compl. ¶ 13.
and,
Plaintiff’s supervisor and the relevant decision maker were aware that [p]laintiff
believed he had been discriminated against and that [p]laintiff was engaging in
1
Even denials of “lateral” transfers, i.e., transfers to positions with no increase in pay and benefits, have in some
cases been an adverse employment action for the purposes of Title VII. E.g., Stewart v. Ashcroft, 352 F.3d 422,
426–27 (D.C. Cir. 2008); see also, Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986) (explaining that
Congress intended Title VII to prohibit all types of discriminatory treatment and not just those that have an
economic or tangible impact).
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protected activity. Because of [p]laintiff’s belief and complaints regarding
discrimination and his attempt to seek a new position, Mr. McCarty negatively
altered the terms and conditions of [p]laintiff’s employment by precluding him
from attendance at meetings which were critical to [p]laintiff’s position. Id. at
¶ 20.
Such allegations do not inform the court as to how McCarty became aware of Ortiz-Diaz’s belief
or help it evaluate whether Ortiz-Diaz did anything that might constitute “opposition” for the
purposes of 42 U.S.C. § 2000e-3 2, but that is not the court’s role at this stage. Given the
pleading standard articulated by the Supreme Court and our circuit, the complaint’s simple
assertion that McCarty was aware that Ortiz-Diaz thought he was being discriminated against is
probably sufficient to state a claim. Ultimately, however, this determination is not necessary to
this court’s judgment because Ortiz-Diaz has failed to exhaust administrative remedies with
respect to his retaliation claim as discussed infra p. 10–11.
2. Exhaustion of Administrative Remedies with Respect to the Racial Discrimination
and Retaliation Claims
HUD-OIG also contends that Ortiz-Diaz’s claims of racial discrimination and retaliation,
in particular, should be dismissed for failure to exhaust administrative remedies. Before
initiating a Title VII civil action, federal employees are required to exhaust administrative
remedies by filing an administrative complaint with the EEOC. Harris v. Gonzales, 488 F.3d
442, 443 (D.C. Cir. 2007). After the EEOC has had sufficient time to investigate, federal courts
can review those claims “like or reasonably related to the allegations of the charge and growing
out of such allegations.” Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995) (internal
quotation marks omitted). Such claims are limited to those that are either encompassed within
2
“Opposition” for the purposes of this statute has been read broadly. See e.g., Crawford v. Metropolitan Gov’t of
Nashville & Davidson County, Tennessee, 129 S.Ct. 846, 850 (2009) (considering an employee’s responses to an
employer’s questions about whether she had been discriminated against to be “opposition.”) Thus, even informal
verbal complaints might suffice depending on the context.
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the administrative investigation or can reasonably be expected to arise out of the administrative
investigation. 3 Id. Making this inquiry necessarily involves examining the facts alleged in the
EEOC complaint to determine whether the EEOC had notice to investigate the claims first before
they were raised in court. Mangiapane v. Adams, 661 F.2d 1388, 1389 (D.C. Cir. 1981);
Mathirampuzha v. Potter, 548 F.3d 70, 76 (2d Cir. 2008). “It is the substance of the [EEOC
complaint] and not its label that controls.” Deravin v. Kerik, 335 F.3d 195, 201 (2d Cir. 2003).
Significantly, all of the material facts alleged in the complaint before the court were also
alleged in the EEOC complaint. HUD-OIG argues, however, that because the EEOC excluded
the claim of racial discrimination from its investigation (because it did not consider “Hispanic”
to be a race), Ortiz-Diaz failed to exhaust administrative remedies with respect to that claim. It
also argues that the claim of retaliation should be dismissed because Ortiz-Diaz failed to check
the box marked “reprisal” in his administrative complaint.
(a) Racial Discrimination
Ortiz-Diaz’s racial discrimination claim appears sufficiently “like or reasonably related”
to the claim of national origin discrimination to allow it to proceed. Several courts have
recognized that, in some contexts, race and national origin may be so substantially related as to
be indistinguishable. E.g., Saint Francis College v. Al-Khazraji, 481 U.S. 604, 614 (1987)
(Brennan, J. Concurring); Deravin v. Kerik, 335 F.3d 195, 201 (2d Cir. 2003); Sinai v. New
England Tel. and Tel. Co., 3 F.3d 371, 475 (1st Cir. 1993); Bullard v. OMI Georgia, Inc., 640
F.2d 632, 634 (5th Cir. Unit B 1981). Whether “Hispanic” is better classified as a race or
3
The “reasonably related” doctrine balances two opposing concerns. On the one hand, it recognizes that employees
who fill out EEOC complaints often do so without the assistance of counsel and may not know which legal claims
best match what they experienced. Mathirampuzha v. Potter, 548 F.3d 70, 77 n.6 (2d Cir. 2008). On the other
hand, it ensures that employers are alerted to all charges that may be brought against them. Id.8
national origin is unclear. 4 Alonzo v. Chase Manhattan Bank, N.A., 25 F.Supp.2d 455, 460
(S.D.N.Y. 1998) (allowing the claim of racial discrimination when the plaintiff, a Hispanic, only
alleged national origin discrimination on his EEOC complaint).
The procedural history of this case renders this analysis unnecessary, however. Here,
Ortiz-Diaz considered his race to be “Hispanic” and his national origin to be “Puerto Rican” and
alleged discrimination on both grounds. The EEOC, however, considered both “Hispanic” and
“Puerto Rican” to be national origins, and neither a race, and therefore only investigated for
national origin discrimination. Either way, the EEOC investigated for the very type of
discrimination that Ortiz-Diaz claims was racial discrimination––discrimination on account of
his being Hispanic. Thus, it is not possible for HUD-OIG to assert that the EEOC investigation
was not “like or reasonably related to” Ortiz-Diaz’s claim of racial discrimination. In fact, it was
the exact same investigation. Any distinction between the two is merely a matter of labels, not
of substance. 5
4
Because of its obligation to review Title VII complaints de novo, the court does not show deference EEOC’s
definitions of these terms.
5
Even if the EEOC did not investigate discrimination on account of his being Hispanic at all but instead limited its
investigation to national origin discrimination on account of his being Puerto Rican, the court would still be on solid
footing for considering his racial discrimination claim to be “like or reasonably related” to his national origin
discrimination claim. In Dequan Lin v. Salazar, this court acknowledged a tendency to treat claimants, like Ortiz-
Diaz, who are seeking to add racial discrimination claims to their national origin discrimination claims more
favorably than claimants who seek to add national origin discrimination claims to their racial discrimination claims.
Dequan Lin v. Salazar, 891 F.Supp.2d 49, 54–55 (D.D.C. 2012). It found that while allegations of racial
discrimination tend to “not preserve an allegation of national origin discrimination for a Title VII action, the reverse
is not necessarily true.” Id. (comparing Brown v. Georgetown Univ. Hosp. Medstar Health, 828 F.Supp.2d 1, 7
(D.D.C.2011) (national origin claim preserved racial discrimination claim) with Sisay v. Greyhound Lines, Inc., 34
F.Supp.2d 59, 64 (D.D.C.1998) (racial discrimination claim did not preserve a claim of national origin
discrimination). The question in all of these cases is whether the claim of national origin discrimination would
reasonably trigger an administrative investigation into racial discrimination, such that the employer would have had
notice. Dequan Lin, 891 F.Supp.2d. at 55. It seems likely that an investigation into whether Ortiz-Diaz was
discriminated based on his being Puerto Rican would be reasonably related to whether he was discriminated based
on his being Hispanic. See, e.g., Cordero v. Heyman, No. 97cv0435, 1998 WL 730558, at *5 (S.D.N.Y. Oct. 19,
1998) (finding claim of discrimination based on “Hispanic” race to be reasonably related to a claim of
discrimination based on “Puerto Rican” national origin); Dequan Lin, 891 F.Supp.2d at 55 (finding that an
investigation into discrimination on the basis of the plaintiff’s Chinese national origin was reasonably related to his
claim of discrimination on the basis of his Asian race).
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Moreover, this is not a situation where the Title VII complainant neglected to allege
racial discrimination at the administrative level and only now seeks to bring it in. Ortiz-Diaz
filed a claim for racial discrimination and was denied. In Mangiapane, the DC Circuit
emphatically held that Title VII complainants are deemed to have exhausted their administrative
remedies with respect to new allegations that they unsuccessfully attempted to introduce at the
administrative level. Mangiapane v. Adams, 661 F.2d 1388, 1390 (D.C. Cir. 1981). It noted that
agencies, not employees, have the burden of developing the administrative record, and that “the
only exhaustion requirement expressly made by Title VII is the employee’s duty to ‘first
complain to his employing agency.’” Id. That much Ortiz-Diaz has done by having included
racial discrimination on his EEOC complaint. 6
(b) Retaliation
However, the claim of retaliation cannot be construed as “like or reasonably related” to
the other claims in the administrative complaint. In the administrative complaint, Ortiz-Diaz
only checked the boxes for “race” and “national origin” but did not check the box for “reprisal.”
Moreover, while he alleged in that complaint that his employer had excluded him from meetings,
he left no indication that the exclusion was in response to his having engaged in a protected
activities.
Complainants can normally still raise claims even if they failed to check the box
appropriate to those claims on their EEOC complaint as long as they allege facts that support the
claims. See Sanchez v. Standard Brands, 431 F.2d 455, 464 (5th Cir. 1970) (explaining that the
6
On this point, HUD-OIG notes that Ortiz-Diaz failed to adequately object to the EEOC’s decision to limit his claim
to national origin discrimination. It observes that some courts have held that a failure to object to the EEOC’s
framing of issues effectively waives unrelated claims. E.g., Clayton v. Rumsfeld, 106 Fed.Appx. 268, 271–72 (5th
Cir. 2004); McKeithan v. Boarman, 803 F.Supp.2d 63, 67–79 (D.D.C. 2011). None of these cases are binding on
this court and all are much less relevant. Here, the investigation conducted by the EEOC is much more related to the
claim this plaintiff seeks to include; indeed, it is the exact same.
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“selection of which box to check is . . . nothing more than the attachment of a legal conclusion to
the facts alleged” and that a party should not be “cut off merely because he fails to articulate
correctly the legal conclusion emanating from his factual allegations”). However, when nothing
in the facts would reasonably give rise to an investigation related to the claim the complainant
seeks to introduce in court, the claim must be dismissed for failure to exhaust administrative
remedies. Ndondji v. InterPark Inc., 768 F.Supp.2d 263, 279 (D.D.C. 2011) (denying retaliation
claim when complainant only alleged national origin discrimination and did not allege any facts
alleging retaliation); Ponce v. Billington, 652 F.Supp.2d 71, 73–74 (D.D.C. 2009) (same);
Rattigan v. Gonzales, 503 F.Supp.2d 56, 69 (D.D.C. 2007) (same). 7
Certainly, the facts regarding Ortiz-Diaz’s exclusion from the meetings would reasonably
have prompted an investigation into whether they were in fact true and whether they were
motivated by animus toward his race or national origin, but they could not reasonably be
expected to give rise to an investigation into retaliation when the plaintiff did not allege to have
done or said anything that the employer might have retaliated against. Thus, this claim must be
dismissed.
B. Summary Judgment
Summary judgment is reserved only for cases in which “[1] there is no genuine dispute as
to any material fact and [2] the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A dispute about a
material fact “is ‘genuine’ . . . if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson, 477 U.S. at 248. The moving party bears the burden of
7
Plaintiffs do not need to exhaust administrative remedies before bringing retaliation claims when the alleged
retaliatory acts occurred in response to the filing of their EEOC complaint. Pyrne v. District of Columbia, 298
F.Supp.2d 7, 12 (D.D.C. 2002). Here, however, the actions that Ortiz-Diaz alleges were retaliatory––his exclusion
from the meetings––occurred prior to the filing of his EEOC complaint.
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demonstrating the absence of any genuinely disputed material facts. Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). Once it satisfies that burden, the moving party is “‘entitled to
judgment as a matter of law’ if the nonmoving party ‘fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.’” Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. Cir. 2003)
(quoting Celotex, 477 U.S. at 322). In making these determinations, the court must view the
evidence in the light most favorable to the nonmoving party, and draw all reasonable inferences
in his favor. Anderson, 477 U.S. at 250, 55.
Summary judgment is inappropriate at this time because the plaintiff has not yet had the
benefit of discovery at the federal court level. The defendant argues that the investigation
conducted at the administrative level should be sufficient. District courts are strongly counseled
against resolving Title VII cases based on the administrative record alone, however. E.g., Ikossi
v. Dep’t of Navy, 516 F.3d 1037, 1045 (D.C. Cir. 2008); Hackley v. Roudebush, 520 F.2d 108,
149 (D.C. Cir. 1975). Title VII requires courts to allocate burdens of proof to the parties in
various ways depending on the types of claims raised and the evidence introduced. See e.g.,
Nassar, 133 S.Ct. at 2526 (contrasting the statutorily prescribed burden-shifting framework for
mixed motive discrimination claims with the different standard for retaliation claims); Trans
World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985) (limiting the burden-shifting
framework established in McDonnell Douglas Corp v. Green, 411 U.S. 792 (1973) to cases
where there is only circumstantial evidence of discrimination, not when there is direct evidence
of discrimination); Brady v. Office of Sergeant at Arms, 520 F.3d 490, 493 (D.C. Cir. 2008)
(explaining how, as a practical matter, plaintiffs almost never need to prove a prima facie case as
required by McDonnell Douglas even when they have no direct evidence of discrimination).
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Without the benefit of discovery, therefore, it is very difficult for courts to know exactly what
showing plaintiffs will need to make at trial. Swierkiewicz, 534 U.S. at 511–12; Chappell-
Johnson v. Powell, 440 F.3d 484, 488–89 (D.C. Cir. 2005).
Ortiz-Diaz also asserts that discovery is necessary to further develop the record. Rule
56(d) states:
When Facts are Unavailable to the Nonmovant. If a nonmovant shows by
affidavit or declaration that, for specified reasons, it cannot present facts essential
to justify its opposition, the court may: (1) defer considering the motion or deny
it; (2) allow time to obtain affidavits or declarations or take discovery; or (3) issue
any other appropriate order.
Plaintiffs seeking additional discovery have a “burden to state with sufficient particularity to the
district court . . . why discovery [is] necessary.” Iksossi v. Dep’t of Navy, 516 F.3d 1037, 1045
(D.C. Cir. 2008) (internal quotation marks omitted). Ortiz-Diaz satisfies this burden with a
declaration from his attorney explaining that further investigation is needed to determine whether
similarly situated employees outside Ortiz-Diaz’s protected class were treated more favorably,
what role McCarty played in making transfer decisions, and other questions necessary to justify
Ortiz-Diaz’s claims. Pl.’s Opposition, Ex. I. Thus, consistent with its obligation to review Title
VII cases de novo and to not entirely rely on the administrative record, the court will deny
summary judgment with respect to the remaining discrimination claims without prejudice to
renew after the parties have engaged in discovery.
IV. CONCLUSION
Based on the foregoing, the court will GRANT defendant HUD-OIG’s motion in part and
DISMISS the retaliation claim. However, it will DENY the motion with respect to the
discrimination claims without prejudice to a new motion after discovery has been conducted.
Pursuant to Fed.R.Civ.P. 12(b)(4)(A), the defendant has 14 days from this date to serve an
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answer to the plaintiff’s complaint. The court also ORDERS discovery pursuant to Fed.R.Civ.P.
56(d) to help resolve Ortiz-Diaz’s surviving claims of racial and national origin discrimination.
Within 21 days of the defendant’s answer, the parties are to confer and develop a proposed
scheduling order in accordance with Fed.R.Civ.P. 16(b) and 26(f) and LCvR 16.3. In its
scheduling order, the court will order a date for a renewed summary judgment motion to be filed.
A separate Order consistent with this Memorandum Opinion shall issue this date.
Signed by Royce C. Lamberth, United States District Judge, on August 16, 2013.
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