difference since "[m]ere idiosyncrasies of personal preference
are not sufficient to state an injury." See id. at 457. In the
instant case, the plaintiff does not claim that his transfer was
adverse simply because he preferred to stay in headquarters.
Instead, he explicitly claims a loss of per diem compensation.
See Pl.'s Opp'n at 22. He also claims that his promotional
opportunities were diminished because agents are often
transferred to regional offices for making mistakes. Thus, a
presumption could arise that he was transferred for poor
performance. See id. In addition, the plaintiff claims the work
in the regional office is not as high profile and is more routine
than the work in headquarters. See id.
The court holds that the plaintiff's involuntary transfer and
its surrounding circumstances in this case could constitute an
adverse personnel action under Title VII. Consequently, the court
will deny the defendant's motion to dismiss.
D. Equitable Tolling
Even if the court concluded that the transfer did not qualify
as an adverse personnel action, the court would still deny the
defendant's motion to dismiss on 12(b)(1) grounds because
equitable tolling would apply. The requirement of filing a timely
administrative complaint is "not a jurisdictional prerequisite to
suit in federal court, but a requirement that, like a statute of
limitations, is subject to waiver, estoppel, and equitable
tolling." Zipes v. Trans World Airlines, Inc., 455 U.S. 385,
392, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982); see also Bowden,
106 F.3d at 437. The court's power to toll the statute of
limitations, however, "will be exercised only in extraordinary
and carefully circumscribed instances." Mondy v. Secretary of
the Army, 845 F.2d 1051, 1057 (D.C.Cir. 1988). Thus, the
plaintiff will not be afforded extra time to file without
exercising due diligence, and the plaintiff's excuse must be more
than a "garden variety claim of excusable neglect." Irwin v.
Department of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453,
112 L.Ed.2d 435 (1990).
In Jarrell v. United States Postal Service, 753 F.2d 1088
(D.C.Cir. 1985), the Court of Appeals held that agency
misinformation is one of the exceptions to the rule that tolling
should be applied narrowly. In Jarrell, the plaintiff's
justifiable reliance on an EEO counselor's assurances was held to
be an equitable consideration that could excuse his noncompliance
with the filing requirement. See id. In this case, the
plaintiff asserts that his reliance on Mr. Beauchamp's promises
of an eventual promotion prevented him from recognizing a pattern
of discrimination. He alleges that Mr. Beauchamp discouraged him
from applying for promotions outside of the Washington, D.C.
office and misled him into believing that the reason the Agency
did not promote him was because it had another specific position
in mind for him. See Pl.'s Opp'n at 3-4. The plaintiff claims
that this reliance on Mr. Beauchamp's assurances prevented him
from timely filing after the four missed promotions. See id.
Accepting the plaintiff's well-pled facts as true for the
purposes of this motion, the court finds that this case resembles
Jarrell in that the plaintiff missed administrative deadlines
because he justifiably relied on affirmative agency
misrepresentations. Accordingly, even if the plaintiff were
deemed to have late-filed, equitable tolling would apply.
E. Elements of Prima-Facie Case of Discrimination and
In its motion to dismiss, the defendant also argues that the
complaint fails to make out a prima-facie case of discrimination
and retaliation. See Mot. to Dis. at 5. Specifically, the
defendant relies on cases that are no longer good law to argue
that, "[t]o make a case of either discrimination or retaliation,
the plaintiff is required to demonstrate, among other things,
that an adverse personnel action took place." Id. (citing
Mitchell v. Baldrige, 759 F.2d 80,
84 (D.C.Cir. 1985); Douglas v. Pierce, 707 F. Supp. 567 (D.D.C.
The D.C. Circuit has recently held, however, that a plaintiff
is not required to set forth the prima-facie elements of a
discrimination or retaliation case at the initial stage. In
Sparrow v. United Air Lines, Inc., 216 F.3d 1111 (D.C.Cir.
2000), the D.C. Circuit recognized that the McDonnell Douglas
test for proving unlawful discrimination applies, and that the
test's first prong places the burden of proof on the plaintiff to
establish a prima-facie case of discrimination. The Circuit
cautioned that "None of this, however, has to be accomplished in
the complaint itself." See id.*fn1
As this court has recently held, "[t]hese D.C. Circuit cases
serve as a stark reminder that a cornerstone of the Federal Rules
of Civil Procedure, and Rule 8 in particular, was to establish a
regime of notice pleading rather than one of fact pleading."
Woodruff v. DiMario, 197 F.R.D. 191, 194 (D.D.C. 2000) (Urbina,
J.) (citing Atchinson v. D.C., 73 F.3d 418, 421 (D.C.Cir.
1996)). In this case, the complaint contains a short and plain
statement that gives the defendant fair notice of the facts
underlying his claims. The plaintiff, therefore, has met the
minimum pleading requirements for his discrimination and
F. Motion for Summary Judgment
Because the court denies the defendant's motion to dismiss and
will allow discovery to proceed, the court will deny the
defendant's motion for summary judgment as premature.
For all of these reasons, the court will deny the defendant's
motion to dismiss and will deny without prejudice the defendant's
motion for summary judgment. An Order directing the parties in a
fashion consistent with this Memorandum Opinion is separately and
contemporaneously issued this 22 day of February, 2001.
DENYING THE DEFENDANT'S MOTION To DISMISS; DENYING WITHOUT
PREJUDICE THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
For the reasons stated in the court's Memorandum Opinion issued
separately and contemporaneously this 22 day of February, 2001,
ORDERED that the defendant's motion to dismiss shall be and
hereby is DENIED; and it is
FURTHER ORDERED that the defendant's motion for summary
judgment shall be and hereby is DENIED without prejudice.