Ryan-White v. Bryson

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. at

510 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