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