Ryan-White v. Blank

• Decision Date: 13 February 2013
• Docket Number: Civil Action No. 12–177 (BAH).
• Citation: 922 F.Supp.2d 19
• Parties: Jewell RYAN–WHITE, Plaintiff, v. Rebecca BLANK, Acting United States Secretary of Commerce, Defendant.
• Court: U.S. District Court — District of Columbia

922 F.Supp.2d 19

Jewell RYAN–WHITE, Plaintiff,

v.Rebecca BLANK, Acting United States Secretary of Commerce, Defendant.

Civil Action No. 12–177 (BAH).

United States District Court,

District of Columbia.

Feb. 13, 2013.

Camilla C. McKinney, McKinney & Associates, PLLC, Alexandria, VA, for Plaintiff.

Benton Gregory Peterson, United States Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

BERYL A. HOWELL, District Judge.

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 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 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 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 STANDARDSA. 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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see alsoFed.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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (alteration in original) (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). 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, 127 S.Ct. 1955). “[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. 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. See5C 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 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, 888 F.Supp.2d 93, 100 (D.D.C.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...