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BARRY v. UNITED STATES CAPITOL GUIDE BOARD

May 2, 2005.

KEVIN BARRY, Plaintiff,
v.
UNITED STATES CAPITOL GUIDE BOARD, Defendant.



The opinion of the court was delivered by: REGGIE B. WALTON, District Judge

MEMORANDUM OPINION

The plaintiff filed this action pursuant to the Congressional Accountability Act of 1995 ("CAA"), 2 U.S.C. § 1371(a) seeking to recover damages from the defendant, the United States Capitol Guide Board ("Guide Board"), for its alleged unlawful actions related to the termination of his employment.*fn1 Complaint ("Compl.") ¶¶ 1-2. The defendant has now filed a motion to dismiss, or in the alternative, for summary judgment,*fn2 arguing that the plaintiff cannot establish (1) a causal connection between his alleged protected activity and the unlawful employment action or (2) that the defendant's legitimate, nondiscriminatory reason for terminating his employment was a pretext for discrimination. Defendant's Motion to Dismiss or, in the Alternative, for Summary Judgment ("Def.'s Mot. for Summ. J.") at 1. The plaintiff, however, seeks to stay consideration of the defendant's summary judgment motion and to permit discovery pursuant to Federal Rule of Civil Procedure 56(f).*fn3 For the following reasons, this Court grants the plaintiff's motion to permit discovery and denies without prejudice the defendant's motion to dismiss, or in the alternative, for summary judgment.

I. Background

  Congress created the United States Capitol Guide Service ("Guide Service") to provide guided tours of the "United States Capitol Building for the education and enlightenment of the general public." 2 U.S.C. § 2166(a) (2004). The Guide Service is subject "to the direction, supervision, and control of the Guide Board, which consists of the Architect of the Capitol, the Sergeant at Arms of the Senate, and the Sergeant of Arms of the House of Representatives. Id. The plaintiff, who is deaf, and, as such, is allegedly a qualified individual with a disability as defined by the Rehabilitation Act of 1973, 29 U.S.C. § 791 and the Americans with Disabilities Act of 1990, 42 U.S.C. § 1211(8), began his employment with the Guide Service on January 1, 1994, as a guide. Compl. ¶¶ 9, 10. According to the plaintiff, as an employee of the Guide Service and the Guide Board,*fn4 which are "employing offices"*fn5 under the CAA, his employment falls under the CAA. Id. ¶¶ 5, 7; see 2 U.S.C. § 1301(3)(C), (9)(D) (2004).

  In 1996, the plaintiff applied for the position of Chief Guide with the Guide Service but was not selected. Id. ¶¶ 12, 13. Rather, another employee, who is not disabled, and according to the plaintiff less qualified than him, was selected for the position. Id. ¶ 13. The plaintiff opines that his non-selection was due solely and proximately to the plaintiff's disability and need for sign language interpreter services. Id. ¶ 15. On March 4, 1996, the plaintiff requested counseling with the Office of Compliance ("OC") regarding his non-selection and subsequently had two meditation meetings with the OC. During the second meeting, the counsel for the Guide Service asserted that the plaintiff's non-selection was not because of discrimination. In June, 1996, the plaintiff received a "Memorandum of Serious Misconduct," which alleged that he had engaged in sexual harassment and that the allegations had arisen during the investigation of the plaintiff's failure to promote complaint. Id. ¶¶ 17, 18. This memorandum was placed in the plaintiff's personnel file. Id. ¶ 21. In March, 1997, the plaintiff filed a formal administrative complaint, which alleged discrimination regarding the promotion denial and also retaliation against him when he was not provided an opportunity to rebut the sexual harassment charges. Id. ¶¶ 24-27. Following the filing of this complaint, an investigation ensued and all adverse references to the "Memorandum of Serious Misconduct" were removed from the plaintiff's personnel records. Id. ¶ 28.

  Over the next 6 years, the plaintiff alleges that his supervisor "bore a grudge" against him, which manifested in the creation of a difficult work environment. Id. ¶ 30. The plaintiff alleges that on one occasion, his supervisor told his interpreter in September, 1997 that "it takes two people to do [the plaintiff's] job," telling the interpreter that, because of his hearing impairment, the plaintiff caused the Guide Service to have to pay two people to perform one job. Id. ¶ 31. The supervisor purportedly told the plaintiff's interpreter "that she would not be getting a salary increase," which resulted in the interpreter leaving for a better paying job. Id. ¶¶ 33, 35. After the interpreter's departure and until his termination, the plaintiff was allegedly denied the services of a full time interpreter; rather, he was instructed by his supervisor to use the interpreters at the Congressional Special Services Office ("CSSO"), which is part of the Guide Service, Def.'s Mot. for Summ. J. at 4, where he had to make an appointment and "wait [his] turn." Id. ¶¶ 36, 37. As further proof of his hostile work environment claim, the plaintiff alleges that information on policy changes and tour information were withheld from him, making him appear incompetent and ignorant in front of his peers. Id. ¶¶ 42-44. The plaintiff also opines that he was treated in a disparate manner from his similarly situated co-workers when he asked to take vacation and bereavement leave. Id. ¶¶ 50-54.

  In June, 2003, the plaintiff had a conversation with a coworker, who was an interpreter temporarily working with the CSSO. Id. ¶ 56. In this conversation, the plaintiff allegedly asked the interpreter about her ethnic background and he told her that he thought she was Spanish, id. at 58, even though she is a third-generation American. Def.'s Mot. for Summ. J. at 7. In a separate conversation, the plaintiff allegedly asked the same interpreter if she was gay. Compl. ¶ 60. After learning about these conversations, the Assistant Director of the CSSO and the Director of the Visitor Services commenced an investigation. Def.'s Mot. for Summ. J. at 6. The investigation allegedly revealed that the plaintiff told the interpreter that she would not want to work at the Guide Board for various reasons. Id. at 7. At the time these alleged statements were made, the interpreter was working as a temporary contract interpreter in order for her to assess whether she would have liked to work for the CSSO if she had been given an offer of employment. Id. at 5.

  On July 15, 2003, following the completion of the investigation, the plaintiff's employment with the Guide Service was terminated. Id. ¶¶ 65-68. The Director concluded that the plaintiff was disloyal for undercutting CSSO's efforts to hire a qualified interpreter by trying to convince her not to take the job. Def.'s Mot. for Summ. J. at 11. Moreover, the Director did not find the plaintiff's statements made during the investigation credible and concluded that the plaintiff displayed poor judgment and unprofessional conduct as a manager. Id. The plaintiff argues, however, that his conversations with his coworker were innocuous and hence, his termination was really in retaliation for the complaints he filed in 1996 and 1997. Compl. ¶ 69. Accordingly, the plaintiff commenced this action alleging that the Guide Board retaliated against him for engaging in protected activity under the CAA and that the Guide Board violated the CAA, when it terminated his employment in July, 2003. Id. ¶¶ 2, 70, 79, 81.

  II. The Parties' Arguments

  The defendant seeks to have the complaint dismissed, or in the alternative, moves for summary judgment. The defendant posits that the plaintiff cannot establish a prima facie case of retaliation because he cannot establish a causal link between the alleged protected activity and the purported adverse employment action and thus the complaint should be dismissed. Def.'s Mot. for Summ. J. at 14. Morever, the defendant argues that even assuming the plaintiff's ability to establish a prima facie case of retaliation, the plaintiff cannot show that the defendant's articulated legitimate, non-discriminatory reason for terminating his employment was a pretext for retaliation and thus they are entitled to summary judgment. Id. at 21-22.

  In response, the plaintiff seeks to stay consideration of the defendant's motion for summary judgment and to permit the plaintiff time to conduct discovery pursuant to Federal Rule of Civil Procedure 56(f). Specifically, the plaintiff asserts that he cannot factually challenge the defendant's summary judgment motion without the opportunity to conduct discovery and that the plaintiff has raised meritorious allegations of bad faith, civil rights violations, and improper conduct on the part of the defendant that warrant his opportunity to conduct discovery. Pl.'s Mem. at 1-2. In support of his motion, the plaintiff included the affidavit of R. Scott Oswald, Esq. ("Oswald Aff."). The defendant argues that the plaintiff's motion to permit discovery should be denied because the plaintiff has neither identified any facts he intends to discover that would create a triable issue, nor explained why he cannot produce them without discovery. See Def.'s Opp'n. at 2, 4-5. The defendant opines in the alternative that if the Court permits discovery, then the scope of such discovery should be limited to the facts necessary to oppose the defendant's motion for summary judgment. Id. at 7.

  III. Standard of Review

  (A) Motion to Dismiss Under Rule 12(b)(6)

  On a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6), this Court must construe the allegations and facts in the complaint in the light most favorable to the plaintiff and must grant the plaintiff the benefit of all inferences that can be derived from the facts alleged. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Barr v. Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004) (citing Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)). However, the Court need not accept asserted inferences or conclusory allegations that are unsupported by the facts set forth in the complaint. Kowal, 16 F.3d at 1276. In deciding whether to dismiss a claim under Rule 12(b)(6), the Court can only consider the facts alleged in the complaint, documents attached as exhibits or incorporated by reference into the complaint, and matters about which the Court may take judicial notice. EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, ...


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