The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge
Before the court is Defendant's Motion  to Dismiss Plaintiff's First Amended Complaint, or in the Alternative, for Summary Judgment. Plaintiff, appearing pro se,*fn1 filed a First Amended Complaint that contains two causes of actions. First, plaintiff alleges that the defendant discriminated against him on the basis of race when his application for promotion to GS 14 was denied. Second, plaintiff alleges that the defendant retaliated against him for filing a formal complaint and seeking the aid of a congressman and a senator concerning defendant's denial of promotion.
For the reasons set forth herein, defendant's motion will be granted in part and denied in part.
A motion to dismiss should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In reviewing a motion to dismiss, the Complaint's factual allegations must be presumed true and all reasonable inferences drawn in plaintiff's favor; however, the court need not "accept legal conclusions cast in the form of factual allegations." Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).
Where matters outside the pleadings are presented to the court in support of a motion to dismiss under Fed. R. Civ. P. 12(b)(6), such motion shall be treated as a motion for summary judgment and disposed of under Fed. R. Civ. P. 56. Fed. R. Civ. P. 12. Taylor v. FDIC, 132 F.3d 753, 762 (D.C. Cir. 1997).
Summary judgment is appropriate when the motion papers, affidavits, and other submitted evidence demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Whether a fact is "material" is determined in light of the applicable substantive law invoked by the action. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In light of the applicable substantive law, a "genuine issue of material fact" is a fact that is determinative of a claim or defense, and therefore, affects the outcome of the case.
See Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 248. The moving party bears the initial burden of demonstrating that no genuine issues of material fact are in dispute. Upon such a showing, the burden then shifts to the non-moving party to demonstrate that genuine issues of material fact are in dispute. The Court is precluded from weighing evidence or finding disputed facts and must draw all inferences and resolve all doubts in favor of the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986).
Though this case involves a complex web of interactions between plaintiff, defendant, the administrative machinery, and the arbitration process, the pertinent undisputed facts for this motion are not overwhelming.
From August of 1998 through January of 2001, plaintiff, a Hispanic, worked under Myles B. Harmon in the International Agreements group of the Office of Regulations and Rulings ("OR&R"), part of the United States Customs Office, which in turn is part of the Department of Homeland Security. In January of 2001, plaintiff switched into the Value Branch, another group within the OR&R, and began working under Virginia Brown. Plaintiff was then a GS-13 level attorney.
On August 28, 2001, plaintiff submitted an application for promotion to GS-14 under the non-competitive promotion plan promulgated on October 26, 1999 after negotiation between the National Treasury Employees Union and the OR&R. Under the Promotion Plan, an attorney wishing to be promoted to the GS-14 level must provide written notice to do so by submitting a statement of qualification demonstrating that he or she meets the criteria for promotion. Among other criteria, an attorney is required to cite examples of work that "demonstrates that the Attorney is performing GS-14 level work and doing so independently and responsibly." (Def. First Mot., Exh. 1, at 1).
As plaintiff's supervisor, Ms. Brown reviewed plaintiff's promotion application. She solicited input from plaintiff's former supervisor, Mr. Harmon, who recommended plaintiff for promotion based on his work in the International Agreements group. Ms. Brown considered Mr. Harmon's input, but based her determination on the quality of plaintiff's work in the Value Branch. In an October 3, 2001 memorandum, Ms. Brown set forth her initial reasoning for determining that plaintiff was not qualified, at that time, for promotion to GS-14 within the Value Branch while determining that plaintiff would nonetheless be qualified for promotion within International Agreements. (see Def. First Opp., Exh. 3.) Despite finding plaintiff unqualified for promotion, she offered plaintiff a chance to supplement his application with work from the Value Branch, as plaintiff had submitted no Value Branch work product with his application. Subsequently, after plaintiff offered no supplement, Ms. Brown denied plaintiff's promotion application.
In November of 2001, plaintiff's union filed a grievance on plaintiff's behalf pursuant to Article 31 of the collective bargaining agreement challenging the propriety of defendant's decision to deny him a promotion. This proceeding, at first, raised issues of discrimination but these issues were later taken out of the case so they could be pursued separately. Plaintiff filed, pursuant to his union's ...