The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge
Before the court is defendant's motion  to dismiss or for summary judgment. Plaintiff John Price, a 53-year-old white male alleges that his employer, defendant Chairman of the Board of Governors of the Federal Reserve System ("Agency"), illegally discriminated and retaliated against him on the basis of his age, sex, and race. Plaintiff's complaint presents four counts: Count I alleges discrimination under Title VII of the 1964 Civil Rights Act ("Title VII"); Count II alleges discrimination under the Age Discrimination in Employment Act ("ADEA"); Count III alleges retaliation under Title VII; and Count IV alleges retaliation under ADEA.
Also before the court is plaintiff's motion  to stay consideration of defendant's summary judgment motion for the purpose of permitting discovery. Plaintiff argues that he has not had sufficient opportunity for discovery, making it unfair to require him to produce, at this time, evidence in response to defendant's summary judgment motion.
For the following reasons, the court will deny plaintiff's motion for further discovery, dismiss the retaliation charges, Counts III and IV, for failure to comply with pertinent statutes of limitations periods, and will grant summary judgment to defendant on the remaining counts.
A motion to dismiss for failure to state a claim or for lack of subject matter jurisdiction 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); Flynn v. Veazey Constr. Corp., 310 F. Supp. 2d 186, 189-90 (D.D.C. 2004). 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).
Defendant has submitted evidence with its motion; therefore, the court, to the extent it considers facts outside of the complaint, will treat defendant's motion as one for summary judgment. See Rann v. Chao, 346 F.3d 192, 194 (D.C. Cir. 2003). 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).
Plaintiff has been employed as a Mainframe Systems Manager, FR-28, in the Agency's
Information Technology Division ("IT") since 1980. Plaintiff alleges that around 1996, Alice Rivlin, Vice Chair of the Board of Governors, noted a low percentage of minorities and women in senior Agency positions and that the Board responded with a directive, an "Upward Mobility Program," to hire and promote more minorities and women at the expense of white males over the age of 40 who had more tenure, skills, and experience. (Compl. ¶ 19.) To facilitate promotion of minorities and women, the Agency allegedly began transferring work away from white men over 40 so that minorities and women would have greater access to career advancement opportunities. Additionally, "[t]he agency justified its promotion of minorities and women by manipulating Performance Management Policy ("PMP") evaluation ratings for white males over the age of 40." and, moreover, instituted rating quotas. (Comp. ¶ 20.)
Marianne Emerson, plaintiff's supervisor in IT, has allegedly implemented the Agency directive to hire and promote more minorities and women. When two candidates were "pretty comparable" in five evaluative criteria, Emerson would allegedly "give slightly greater weight" to the minority candidate. (Compl. ¶ 15.) Before Emerson, Richard Stevens supervised plaintiff and allegedly implemented Agency policies favoring minorities and women from 1999-2002 and Steven Malphrus did likewise from 1992-1999 (29-30)
Plaintiff specifically alleges that he was wrongfully passed over for promotions on several occasions. In 1997 and 1998, for example, the Agency transferred career advancement opportunities from plaintiff to a female co-worker, Sue Marcyz, who was later promoted while plaintiff has remained at the same level. (Compl. ¶ 12-13.)
In response to this alleged discrimination by the Agency, plaintiff filed a formal EEO complaint on March 15, 2001 ("First EEO Complaint") alleging that the Agency discriminated against him on the basis of race, sex, and age through its pattern and practice of underrating the performance of white males over 40 with the intent or effect of wrongfully favoring females and minorities in career advancement and benefits.*fn1 The complaint also alleged that the February 6, 2001 reorganization of IT disparately impacted white males over the age of 40. Finally, the complaint alleged that as part of that reorganization, the Agency promoted two minority employees to Assistant Director positions over equally or more qualified white male employees, including plaintiff.
After filing the First EEO Complaint, the Agency, according to plaintiff, began to retaliate. After March 15, 2001, Emerson, plaintiff's supervisor, began to blame plaintiff for delays in implementing a new program. (Compl. ¶ 40.) The agency denied plaintiff's request for an Alternate Work Arrangement ("AWA"), which it had not denied to other employees prior to March 15, 2001. (Compl. ¶ 39.) It questioned plaintiff's decision to ask a subordinate employee to fill in for plaintiff on an AWA off-day, also something the Agency had not done prior to March 15, 2001. (Compl. ¶ 41.) Also after March 15, 2001, Emerson began excluding plaintiff from informal management meetings and refused to speak with plaintiff. (Compl. ¶ 42.) The agency increased the pace at which it transferred assignments away from plaintiff. (Compl. ¶ 43.) Naming some of these events as his basis, plaintiff filed a second formal EEO complaint on June 22, 2001 ("Second EEO Complaint") alleging not discrimination, but retaliation for his previous EEO activity. (Def. Exh. 5.)
On March 5, 2002, Stevens, one of plaintiff's former supervisors, allegedly informed plaintiff that plaintiff would not be selected for an IT Assistant Director position; Raymond Romero, a Hispanic male with fewer years of experience, would get that position. In response to this news, plaintiff filed his third formal EEO complaint on May 10, 2002 ("Third EEO Complaint") alleging discrimination on the basis of race. He alleges that on May 7, 2001, Stevens directed the IT officers and managers to target Hispanics for hiring and promotion. At that time, the "coveted" ...