Paschal v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

TONY E. PASCHAL,

Plaintiff,

v.

DISTRICT OF COLUMBIA, Civil Action No. 13-1608 (GK)

Defendant.

MEMORANDUM OPINION

Plaintiff Tony E. Paschal ("Plaintiff" or "Paschal") brings

this action against Defendant the District of Columbia

("Defendant") for retaliation and a hostile work environment in

violation of the Americans with Disabilities Act of 1990

("ADA"), 42 U.S.C. §§ 12203, 12132, and 12112(a).

This matter is presently before the Court on Defendant's

Motion to Dismiss or in the Alternative Motion for Summary

Judgment [Dkt. No. 18]. Upon consideration of the Motion,

Opposition, and Reply, the entire record herein, and for the

reasons stated below, Defendant's Motion to Dismiss is granted

in part and denied in part, Defendant's Motion for Summary

Judgment is denied without prejudice, and Plaintiff's Motion for

a Stay to Obtain Discovery is denied as moot.
I . BACKGROUND

A. Factual Background 1

On October 29, 2010, Plaintiff Tony E. Paschal started work

as a Business Relations Specialist with the District of Columbia

Department on Disability Services ("DDS"). Second Amended

Complaint ("SAC") ~~ 2, 10. DDS is a service provider and

advocate for individuals with disabilities seeking employment in

the District of Columbia. SAC ~~ 8-9. Plaintiff's duties for DDS

included outreach and engagement with employers to create

relationships with the business community. SAC ~ 10. Plaintiff

would leverage those relationships to find job opportunities for

qualified DDS clients. SAC ~ 10.

Plaintiff has lupus, type 1 diabetes, and rheumatoid

arthritis, which he alleges substantially limit one or more

major life activities, and are thus properly considered

disabilities. SAC ~ 6. Plaintiff informed DDS of the nature of

his disability when he was hired. SAC ~ 11.

1
Defendant has requested Summary Judgment in the alternative
to his Motion to Dismiss, but for the reasons set forth below,
Summary Judgment is premature at this time.

For purposes of ruling on a motion to dismiss, the factual
allegations of the complaint must be presumed to be true and
liberally construed in favor of the plaintiff. Aktieselskabet AF
21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 15 (D.C. Cir.
2 008) ; Shear v. Nat' l Rifle Ass' n of Am., 606 F. 2d 1251, 1253
(D.C. Cir. 1979). Therefore, the facts set forth herein are
taken from the Second Amended Complaint ("SAC") [Dkt. No. 11].
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 Plaintiff alleges that beginning in November of 2011, his

direct supervisor, Sylvia Bailey-Charles, "repeatedly made

negative, derogatory statements to [him] and other staff about

people with disabilities--in particular, the agency's clients."

SAC ~~ 12, 13. The only such comment specifically alleged in his

SAC, however, is that Ms. Bailey-Charles once commented that

disabled persons should be "cleaning toilets . because they

[are] handicapped." SAC ~ 13. On one occasion, "Ms. Bailey-

Charles sent job notices for janitorial and dishwashing work to

a [DDS] client who was a former practicing physician with a

medical degree." Id.

Plaintiff decided to meet with an EEO counselor to discuss

his concerns about Ms. Bailey-Charles. SAC ~ 14. Despite

scheduling a meeting for May 2, 2012, which Plaintiff noted on

his online work calendar, Id., it did not take place until May

29, 2012.

In the interim, on or about May 22, 2012, Plaintiff met

with Ms. Bailey-Charles and Sharon Vaughn-Roach, the Program

Operations Manager for the District of Columbia Rehabilitation

Services Administration. SAC ~ 15. At the meeting, Ms. Bailey-

Charles indicated that she had read Plaintiff's calendar entry

noting his date for meeting with an EEO counselor. SAC ~ 15.

Plaintiff contends that Ms. Bailey-Charles made two threats at

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that meeting: (1) to lower his pay grade, and (2) to put him on

a Performance Improvement Plan ("PIP"). SAC ~ 15.

On May 29, 2012, Paschal met with EEO Counselor David

Prince. SAC ~ 17.

On June 26, 2012, Ms. Bailey-Charles forwarded a PIP to

Plaintiff and stated that the decision to issue the PIP was

based on his alleged "lack of performance" during the

performance period that ran from October 2011 through September

2012. SAC ~ 18.

On August 13, 2012, Plaintiff filed a Charge of

Discrimination with the District of Columbia Office of Human

Rights ("OHR"), alleging that he had been discriminated against

on the basis of disability. SAC ~ 2 0. Plaintiff claims that

since filing that charge, he continues to feel "intimidated" by

Ms. Bailey-Charles. SAC~ 21. On November 29, 2012, Plaintiff

again met with Ms. Bailey-Charles and Ms. Vaughn-Roach. Id. At

that meeting, he felt that the two managers "bull[ied]" him, but

did not allege any specific actions. Id.

In November 2012, at Ms. Bailey-Charles' behest, Plaintiff

stopped attending networking events and other meetings that he

had routinely attended as part of his work. SAC ~ 22. Plaintiff

alleges that the events and meetings were "prime opportunities"

to network on behalf of DDS's clients and that exclusion from
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these contacts interfered with his ability to perform his job

duties. SAC~ 22.

On December 12, 2012, Ms. Bailey-Charles gave Plaintiff a

negative Annual Performance Evaluation, rating him a "Marginal

Performer" for the period from October 1, 2011 through September

30, 2012. SAC~ 23.

On December 27, 2012, Plaintiff met with Ms. Bailey-Charles

and Ms. Vaughn-Roach for his Annual Performance Review. SAC ~

24. At that meeting, both managers threatened to terminate

Plaintiff s employment or to demote him. SAC
1
~ 24.

On February 12, 2013, Ms. Bailey-Charles informed Plaintiff

that she would change his job description, although that change

did not occur because of certain provisions in Plaintiff,s union

contract and DDS personnel procedures. SAC ~ 25.

On May 15, 2013, OHR issued a Letter of Determination

finding No Probable Cause for Plaintiff s 1
hostile work

environment and retaliation claims. SAC ~ 29. He timely

submitted a request for reconsideration, and on July 24, 2013,

OHR affirmed its findings. SAC ~ 30-31.

B. Procedural Background

On October 21, 2013, Paschal filed his Complaint, alleging

retaliation and hostile work environment under the ADA [Dkt. No.

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1] . On January 24, 2014, Plaintiff filed his Second Amended

Complaint [Dkt. No. 11].

On February 18, 2014, Defendant filed a Motion to Dismiss

or in the Alternative Motion for Summary Judgment [Dkt. No. 18].

On March 7, 2014, Plaintiff submitted a Rule 56(d) Motion for a

Stay to Obtain Discovery [Dkt. No. 21] and a Memorandum of

Points and Authorities in Opposition to Defendant's Motion to

Dismiss or in the Alternative Motion for Summary Judgment, and

in Support of Plaintiff's Rule 56(d) Motion [Dkt. No. 22].

II. STANDARD OF REVIEW

To survive a motion to dismiss under Rule 12(b) (6), a

plaintiff need only plead "enough facts to state a claim to

relief that is plausible on its face" and to "nudge[ [his or

her] claims across the line from conceivable to plausible." Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). "[O]nce a

claim has been stated adequately, it may be supported by showing

any set of facts consistent with the allegations in the

complaint." Id. at 563.

Under the Twombly standard, a "court deciding a motion to

dismiss must not make any judgment about the probability of the

plaintiffs' success . [,] must assume all the allegations in

the complaint are true (even if doubtful in fact) [, and]

must give the plaintiff the benefit of all reasonable inferences
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derived from the facts alleged." Aktieselskabet AF 21. November

2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir. 2008)

(internal quotation marks and citations omitted). A complaint

will not suffice, however, if it "tenders 'naked assertion[s]'

devoid of 'further factual enhancement.'" Ashcroft v. Iqbal, 556

u.s. 662, 678 (2009) (quoting Twombly, 550 u.s. at 557)

(alteration in Iqbal).

III. ANALYSIS

A. Hostile Work Environment

In order to adequately plead a claim of hostile work

environment, Plaintiff must allege facts showing "that his

employer subjected him to 'discriminatory intimidation,

ridicule, and insult' 'sufficiently severe or pervasive to

alter the conditions of the victim's employment and create an

abusive working environment. '" Baloch v. Kempthorne, 550 F.3d

1191, 1201 (D.C. Cir. 2008) (quoting Harris v. Forklift Sys.,

Inc., 510 U.S. 17, 21 (1993)). "To determine whether a hostile

work environment exists, the court looks to the totality of the

circumstances, including the frequency of the discriminatory

conduct, its severity, its offensiveness, and whether it

interferes with an employee's work performance." Id. (citing

Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998)).

The Supreme Court has made clear that in order to prevent anti-
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discrimination laws from becoming a "general civility code [,]"

"offhand comments, and isolated incidents (unless extremely

serious) will not amount to discriminatory changes in the terms

and conditions of employment." Faragher, 524 u.s. at 788

(internal citations and quotation marks omitted).

Plaintiff has made only two specific, factual allegations

on which to base his hostile work environment claim: (1) Ms.

Bailey-Charles' comment that disabled persons should be

"cleaning toilets because they were handicapped [;]" and

( 2) Ms. Bailey-Charles' transmission of job notices for

janitorial and dishwashing work to a disabled former practicing

physician. SAC ~ 13.

With respect to "well-pleaded factual allegations[,]" "a

court should assume their veracity and then determine whether

they plausibly give rise to an entitlement to relief." Iqbal,

556 U.S. at 679. These two instances simply do not satisfy this

standard. Without more, the two examples Plaintiff provides are

the very "isolated incidents of offensive conduct [that] do not

amount to actionable harassment." Smith v. Jackson, 539 F. Supp.

2d 116, 138 (D.D.C. 2008) (quoting Stewart v. Evans, 275 F.3d

1126, 1134 (D.C. Cir. 2002)).

Plaintiff does allege that "Ms. Bailey-Charles repeatedly

made negative, derogatory statements about people with

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disabilities[.]" SAC , 13. However, even if Ms. Bailey-Charles'

single, quoted comment is taken as a representative example,

Plaintiff has not met his burden. Plaintiff must show that

Defendant's conduct was "sufficiently severe or pervasive to

alter the conditions of the victim's employment and create an

abusive working environment." Baloch, 550 F.3d at 1201 (internal

citations and quotation marks omitted). Because Ms. Bailey-

Charles' comment--even if repeated--does not rise to this level

of severity. Count II of the Complaint shall be dismissed.

B. Retaliation

A well-pleaded retaliation claim must allege that: "(1)

[the plaintiff] engaged in protected activity, ( 2) [the

plaintiff] was subjected to adverse action by the employer, and

(3) there existed a causal link between the adverse action and

the protected activity." Jones v. Wash. Metro. Area Trans.

Auth., 205 F.3d 428, 433 (D.C. Cir. 2000) (internal citations

omitted); Taylor v. Solis, 571 F.3d 1313, 1320 (D.C. Cir. 2009)

("In order to prevail upon a claim of unlawful retaliation, an

employee must show she engaged in protected activity, as a

consequence of which her employer took a materially adverse

action against her." (internal citations and quotation marks

omitted)). Plaintiff argues--and Defendant does not contest--

that he "engaged in a statutorily protected activity when he
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scheduled a meeting with an EEO counselor." SAC ~ 34. The Court,

therefore, must determine whether the conduct alleged by

Plaintiff constitutes an adverse action, and if so, whether the

pleadings and all reasonable inferences to be drawn from them

plausibly present a causal link between the EEO meeting and the

alleged retaliatory conduct. Aktieselskabet, 525 F.3d at 17;

Jones, 205 F.3d at 433.

1. Adverse Action

"Adverse actions in the retaliation context encompass a

broader sweep of actions than those in a pure discrimination

claim." Baloch v. Kempthorne, 550 F.3d 1191, 1198 n.4 (D.C. Cir.

2008) (internal quotation marks omitted) . Retaliation actions

are "not limited to [those] that affect the terms and conditions

of employment." Burlington N. & Santa Fe Ry. Co. v. White, 54 8

U.S. 53, 64 (2006) . "A materially adverse action is one that

'could well dissuade a reasonable worker from making or

supporting a charge of discrimination.'" Porter v. Shah, 606

F.3d 809, 817-18 (D.C. Cir. 2010) (quoting Burlington Northern,

548 u.s. at 57) . However, "petty slights, [and] minor

annoyances" are normally not enough to deter workers from

exercising their rights. Burlington Northern, 548 U.S. at 68.

Plaintiff contends that several of Defendant's actions were

materially adverse: Ms. Bailey-Charles' threat and eventual
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imposition of the PIP, her assignment of a "Marginal Performer"

rating, her threat to lower Plaintiff's pay grade, Ms. Bailey-

Charles' and Ms. Vaughn-Roach's threat to terminate or demote

Plaintiff, the change in work duties and later threat to change

Plaintiff's job description, and Plaintiff's feeling of

intimidation and sense that Ms. Bailey-Charles and Ms. Vaughn-

Roach tried to "bully" him.

a. Perfor.mance Rating and Perfor.mance
Improvement Plan

Plaintiff's "Marginal Performer" rating and Performance

Improvement Plan ("PIP") are best considered simultaneously

because our Court of Appeals has held that together such actions

may constitute an adverse action. Porter v. Shah, 606 F.3d 809,

818 (D.C. Cir. 2010). Plaintiff points to Porter, 606 F.3d at

818, as support for his contention that both the rating and the

PIP constitute materially adverse actions in this case. Pl. 's

Opp'n at 10. Defendant contends that Porter held that a

particular performance report was not an adverse action "because

it did not affect plaintiff's 'position, grade level, salary, or

promotion opportunities.'" Def. 's Reply at 4 (quoting Porter,

606 F.3d at 818) . 2

2
Defendant also argues that the facts of this case are
distinct from those in Porter because Plaintiff in this case
successfully completed his PIP and successfully appealed his
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 In fact, Porter involved two separate interim performance

reviews. 606 F.3d at 818. The first "was delivered orally, with

no written record placed in Porter's personnel files, and it was

superseded by his year-end annual review." Id. The Court of

Appeals ruled that this evaluation was not an adverse action.

Id. The second evaluation, delivered in a subsequent year, "was

in writing [and] . was placed in Porter's personnel file[,]"

despite a policy that normally excluded interim reviews from

personnel files. Id. Moreover, the second evaluation was

accompanied by a PIP. Id. This time, the Court of Appeals ruled

that " [g] i ven the serious consequences affecting Porter's

position, grade level, salary, or promotion opportunities, [the

second, written] negative assessment together with [a] PIP

constituted a material adverse action." Id. (internal quotation

marks omit ted) (citing Baloch, 550 F.3d at 1199; Taylor v.

Solis, 571 F.3d 1313, 1321 (D.C. Cir. 2009)).

Plaintiff alleges that Defendant gave him both a negative

performance rating and placed him on a PIP for the performance

period that ran from October 2011 to September 2012. SAC ~~ 18,

23. Plaintiff further alleges that the "negative performance

evaluation and the PIP exposed [him] to [potential] removal or

performance rating. Def. 's Reply at 4-5. Since that argument
rests on facts that are not alleged in Plaintiff's pleadings, it
cannot be addressed properly in a Motion to Dismiss.
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reassignment, and they had a detrimental effect on his

responsibilities and promotion opportunities." SAC 36.

Defendant's alleged actions are therefore analogous to the

second evaluation considered by the Porter Court and

consequently, qualify as materially adverse actions. 3

Plaintiff need not allege that he was denied a promotion,

discharged, or received a salary reduction; he "must point to an

action that a reasonable employee would have found materially

adverse." Bonnette v. Shinseki, 907 F. Supp. 2d 54, 69-70

(D.D.C. 2012) (internal quotation marks omitted). Plaintiff has

done so here.

3
Defendant looks to other authority to support its view.
Citing Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003) and
Brown v. Brody, 199 F.3d 446, 457-58 (D.C. Cir. 1999), Defendant
contends that a PIP or a negative review can constitute adverse
actions only when accompanied by a present effect on grade or
salary. Def.'s Mot. at 11-12. However, the Supreme Court's more
recent opinion in Burlington Northern, 548 U.S. at 64, makes
clear that adverse actions are "not limited to discriminatory
actions that affect the terms and conditions of employment." Our
Court of Appeals has concluded that the retaliation standard
applied in Brown v. Brody--that a plaintiff must show a
materially adverse change in the terms and conditions' of
employment--was abrogated by Burlington Northern. Steele v.
Schafer, 535 F.3d 689, 692-696 (D.C. Cir. 2008).

Moreover, in Porter (decided after Burlington Northern) our
Court of Appeals made no finding that Melvin Porter had in fact
experienced a reduction in grade or salary. Instead the Court
found that "the rating and the PIP could expose him to removal,
reduction in grade, withholding of within grade increase or
reassignment." Porter, 606 F.3d at 818 (emphasis added).
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 b. Threats of Demotion and Ter.mination

Plaintiff alleges that Ms. Bailey-Charles threatened him on

two occasions. First, on or about May 22, 2012, Ms. Bailey-

Charles "threatened to lower [Plaintiff]'s pay grade or put him

on a [PIP]." SAC ~ 15. Second, in a meeting on December 27, 2012

to discuss his annual performance evaluation, both Ms. Bailey-

Charles and Ms. Vaughn-Roach "threatened to terminate

[Plaintiff's] employment or demote him." SAC ~ 24.

The threats of demotion and termination were made during

conversations with Plaintiff about the PIP and "Marginal

Performance" evaluation. The threats--and their timing and

context--therefore, provide strong support to Plaintiff's

allegation that the "negative performance evaluation and the PIP

exposed [him] to removal or reassignment." SAC ~ 36.

c. Change in Duties and Proposed Change in
Job Description

Plaintiff relies exclusively on Burlington Northern to

support his argument that denial of the opportunity to attend

networking events and other meetings constituted an adverse

action. Pl. 's Opp' n at 11-12. That case, however, offers only

weak support for Plaintiff's position. 4 Burlington Northern

4
Plaintiff, however, is correct to point out that Burlington
Northern supersedes previous precedent in this Circuit that
would have required adverse actions that affect "the terms and
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involved the transfer of a forklift operator to a general

laborer position. There, "the jury had before it considerable

evidence that the track laborer duties were by all accounts more

arduous and dirtier; that the forklift operator position

required more qualifications, which is an indication of

prestige; and that the forklift operator position was

objectively considered a better job and the male employees

resented [the plaintiff] for occupying it." Burlington Northern,

548 U.S. at 71. The conduct Plaintiff alleges does not come

close to the conduct in Burlington Northern.

Our Court of Appeals has made clear its "hesitancy to

engage in judicial micromanagement of business practices by

second-guessing employers' decisions about which of several

qualified employees will work on a particular assignment."

Baloch v. Kempthorne, 550 F.3d 1191, 1197 (D.C. Cir. 2008); see

e.g., Taylor v. Solis, 571 F. 3d 1313, 1321 (D.C. Cir. 2009) (an

employer did not take an adverse action by "slow[ing] the

processing of [an employee's] cases and

require[ing] her . to submit biweekly reports on the status

of her work.") . Accordingly, it has held that an employee did

not suffer "materially adverse consequences" when he "no longer

conditions of employment" in order to make out a retaliation
claim. Steele v. Schafer, 535 F.3d 689, 692-696
~~~~~~~~~~~
(D.C. Cir.
2008) .
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attended management meetings or received management-related e-

mails and other communications" for "several months [.]" Forkkio

v. Powell, 306 F.3d 1127, 1131 (D.C. Cir. 2002).

Plaintiff must show that the change in his duties were not

just "petty slights" but "could well dissuade a reasonable

worker from making or supporting a charge of discrimination."

Burlington Northern, 548 u.s. at 57, 68. Denial of the

opportunity to attend networking events and meetings falls short

of that requirement.

Finally, Plaintiff states that the proposed change in job

description, if it had come to pass, "would have been more

onerous, or would have involved 'duties that are less desirable

than others.'" Pl.'s Opp. at 12 (quoting Burlington Northern,

548 U.S. at 70) . However, he offers no factual allegations to

support his speculation. "Alleged harms" that fall short of

"firing or a significant change in benefits" "must not be unduly

speculative." Bridgeforth v. Jewell, 721 F.3d 661, 663 (D.C.

Cir. 2013) (internal citations and quotation marks omitted) .

Consequently, the change in duties and proposed change in job

description do not, as alleged, constitute adverse actions.

d. Bullying and Intimidation

Finally, Plaintiff contends that he felt "intimidated" and

"bull[ied]" in a meeting with Ms. Bailey-Charles and Ms. Vaughn-
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Roach. SAC ~ 21. Plaintiff's contentions, without more, are the

sort of "petty slights, minor annoyances, and simple lack of

good manners" that are not actionable as retaliation. Burlington

Northern, 548 U. 8. at 68. Moreover, our Court of Appeals has

held that even "disproportionate" "profanity-laden yelling" may

constitute the variety of "sporadic verbal altercations or

disagreements [that] do not qualify as adverse actions for

purposes of retaliation claims." Baloch, 550 F.3d at 1199.

Consequently, these allegations do not constitute adverse

action.

Although, not all of Defendant's alleged conduct rises to

the level of a materially adverse action, Plaintiff's

allegations related to the threats, negative performance review,

and PIP are enough to adequately plead his retaliation claim.

2. Causal Link Between the Adverse Action and the
Protected Activity

Defendant argues that because "Plaintiff [did] not allege

that [Ms.] Bailey-Charles or [Ms.] Vaughn-Roach specifically

linked his calendar entry to pay or the proposed PIP[,]" there

is no sufficient causal link between the protected activity and

alleged adverse action. Def.'s Mot. at 5. Defendant is mistaken.

A "causal connection may be established by showing that

the employer had knowledge of the employee's protected activity,

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and that the adverse . action took place shortly after that

activity." Rochon v. Gonzales, 438 F.3d 1211, 1220 (D.C. Cir.

2006) (quoting Mitchell v. Baldridge, 759 F.2d 80, 86 (D.C. Cir.

1985)); see also Alston v. D.C., 561 F. Supp. 2d 29, 43 (D.D.C.

2 008) ("a close temporal connection between the protected

activity and the adverse action can indeed support an inference

of causation.") (internal quotation marks omitted).

Defendant does not dispute that Plaintiff engaged in

protected activity when he scheduled a meeting with an EEO

counselor. Nor does Defendant dispute that the actual meeting

with the EEO counselor was protected. Ms. Bailey-Charles

demonstrated her knowledge of the protected activity and

threatened an adverse action in her May 22, 2012, conversation

with Plaintiff. SAC ~ 15. She took the threatened action by

placing Plaintiff on a PIP just over a month thereafter on June

26, 2012. SAC~ 18. Based on these allegations, there is no

question that a plausible causal relationship has been

adequately pleaded.

Defendant also argues that "[f]rom the facts alleged, it is

as likely that [P]laintiff was placed on a PIP because of

performance problems, as it is that it was retaliation for

seeing an EEO counselor." De£.' s Reply at 4. Plaintiff "is not

required, however, in order to state a claim of retaliation, to
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allege facts sufficient to negate [Defendant's] alternative

explanations for its actions-whatever they may turn out to be."

Rochon, 43 8 F. 3d at 122 0. Given that Plaintiff is entitled to

all reasonable inferences that arise from his allegations,

Aktieselskabet, 52 5 F. 3d at 17, it is more than reasonable to

infer that Ms. Bailey-Charles was retaliating against him

because of his EEO meeting. Plaintiff has sufficiently alleged

that he "engaged in protected activity, as a consequence of

which [his] employer took a materially adverse action against

[him]" and accordingly, has adequately pleaded his claim of

unlawful retaliation. Taylor, 571 F.3d at 1320.

C. Motion for Summary Judgment and Motion to Stay

In the alternative to its Motion to Dismiss, Defendant

requests Summary Judgment on Counts I and II of Plaintiff's

Complaint. Def. 's Mot. [Dkt. No. 18] . Plaintiff asks the Court

to deny Defendant's Motion for Summary Judgment as premature and

to treat the District's motion purely as a motion to dismiss.

Pl.'s Opp'n at 19 [Dkt. No. 22]. In the alternative, Plaintiff

requests a Stay to Obtain Discovery pursuant to Fed. R. Civ. P.

56(d). Pl.'s Mot. for a Stay to Obtain Disc. [Dkt. 21]

At the time of Defendant's Motion, no discovery had been

had by either party. Pl.'s Mot. for at Stay to Obtain Discovery

at 1. Ordinarily, that alone would make summary judgment
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premature. Hollabaugh v. Office of the Architect of the Capitol,

847 F. Supp. 2d 57, 60 (D.D.C. 2012) (holding that a motion for

summary judgment was premature in employment discrimination suit

where no discovery had been conducted). The Court notes,

moreover, that Defendant--prior to filing its Motion for Summary

Judgment--requested a stay of discovery. See Joint Status Report

(July 30, 2014) [Dkt. No. 27] . Our Court of Appeals has made

clear that "fundamentally, under the Federal Rules of Civil

Procedure, when a Rule 12(b) (6) motion to dismiss is converted

into a motion for summary judgment, all parties must be given a

reasonable opportunity to present all material made pertinent to

such a motion by Rule 56 [, and] it is settled that the term

'reasonable opportunity' includes the opportunity to pursue

reasonable discovery." First Chicago Int' l v. United Exch. Co. ,

Ltd. I 836 F.2d 1375, 1380-81 (D.C. Cir. 1988). Therefore,

Defendant's Motion for Summary Judgment is denied without

prejudice.

IV. CONCLUSION

For the foregoing reasons, Defendant's Motion to Dismiss is

granted in part and denied in part, Defendant's Motion for

Summary Judgment is denied without prejudice and Plaintiff's

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Motion for a Stay to Obtain Discovery is denied as moot. An

Order shall accompany this Memorandum Opinion.

August~, 2014
Judge

Copies to: attorneys on record via ECF

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