The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge
Re Document Nos.: 8, 10, 13, 15, 18
MEMORANDUM OPINION DENYING THE DEFENDANT'S MOTION TO DISMISS THE FIRST AMENDED COMPLAINT; DENYING WITHOUT PREJUDICE THE DEFENDANT'S MOTION IN THE ALTERNATIVE FOR SUMMARY JUDGMENT;DENYING THE PLAINTIFF'S MOTION FOR LEAVE TO FILE A SUR- REPLY;DENYING AS MOOT THE PLAINTIFF'S MOTIONS TO STRIKE
This matter comes before the court on the defendant's motion to dismiss or, in the alternative, for summary judgment. The pro se plaintiff, an attorney, claims that the defendant retaliated against him in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq., by declining to hire him as an Attorney Advisor because the plaintiff, whom the defendant employed for several months in 1994, had previously accused the defendant of committing unlawful discrimination. The defendant has moved to dismiss or, in the alternative, for summary judgment. Because the court rejects the basis for the defendant's motion to dismiss, and because summary judgment is not warranted at this time as the parties have not yet engaged in discovery, the court denies the defendant's motion to dismiss and denies without prejudice the defendant's motion in the alternative for summary judgment. This ruling renders moot the remaining motions currently pending in this case.
II. FACTUAL & PROCEDURAL BACKGROUND
The roots of this action trace back to February 1994, when the defendant hired the plaintiff as an Attorney Advisor in the Sacramento, California office of its Agency Office of Disaster Assistance (referred to by the parties and hereinafter as "the DAO4 position") following a major earthquake in California in January 1994. Am. Compl. ¶ 8. The DAO4 position was to last only sixty days, but the defendant extended the plaintiff's employment for successive sixty-day periods until September 1994, when the defendant terminated the plaintiff's employment. Id. ¶¶ 9, 13. According to the defendant, it decided not to continue the plaintiff's employment because of several inappropriate comments that he had made, which had created an uncomfortable work environment for the plaintiff's female co-workers in particular. Def.'s Mot. at 3-4. In a letter written to the defendant following his termination, the plaintiff maintained that it was he who was subjected to "intolerable and discriminatory working conditions," as a result of one female co-worker who appointed herself the "gender police" and overreacted to comments that the plaintiff made concerning sexual harassment in the workplace. See id., Ex. 2.
Following his termination from the DAO4 position, the plaintiff commenced a lawsuit in the Eastern District of California claiming sex discrimination, retaliation and constructive discharge. Am. Compl. ¶ 19. In 2001, that court granted summary judgment in the defendant's favor. See generally Light v. Alvarez, No. S-99-778 (E.D. Cal. Jan. 18, 2001). Three years later, in 2004, the plaintiff applied for one of several Attorney Advisor positions that had been created in Disaster Area Office 2 in the aftermath of Hurricane Charlie (referred to by the parties and hereinafter as "the DAO2 position"). The defendant maintains that when it received the plaintiff's application, it consulted the database of personnel records that it maintains for all former employees. Def.'s Mot., Ex. 4 (Aff. of Allan Hoberman, Director of Disaster Personnel ("Hoberman Aff.")). The "comments" section of the plaintiff's personnel records stated: "During employment in A4," -- i.e., the DAO4 position -- "the employee demonstrated conduct issues concerning his inability to get along w/his co-workers & managers." Def.'s Mot., Ex. 5. The plaintiff maintains that that comment is false. Am. Compl. ¶ 24. As a result of the comment, the plaintiff's application was forwarded to the defendant's Director of Disaster Personnel, Allan Hoberman, who was familiar with the plaintiff from his employment in the DAO4 position in 1994. Hoberman Aff. ¶ 3. In September 2004, the defendant notified the plaintiff that it had chosen not to hire him for the DAO2 position. Am. Compl. ¶ 29.
The plaintiff commenced this action in June 2008, claiming that the defendant's decision not to hire him for the DAO2 position was made in retaliation for the plaintiff's complaint of discrimination concerning the DAO4 position in 1994. Id. ¶ 34. The plaintiff filed an amended complaint in February 2009, see generally id., and the defendant filed a motion to dismiss or, in the alternative, for summary judgment in March 2009, see generally Def.'s Mot. As that motion is now ripe for adjudication, the court turns to the applicable legal standards and the parties' arguments.
A. Legal Standard for a Retaliation Claim
To prevail on a claim of retaliation, a plaintiff must follow the McDonnell Douglas framework. Taylor v. Solis, 571 F.3d 1313, 1320 n.* (D.C. Cir. 2009) (observing that "[r]etaliation claims based upon circumstantial evidence are governed by the three-step test of McDonnell Douglas Corp. v. Green"); Morgan v. Fed. Home Loan Mortgage Corp., 328 F.3d 647, 651 (D.C. Cir. 2003) (applying the McDonnell Douglas framework to a Title VII retaliation claim). The Supreme Court explained the framework as follows:
First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of [retaliation]. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant "to articulate some legitimate, [non-retaliatory] reason for the employee's rejection".... Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for [retaliation].... The ultimate burden of persuading the trier of fact that the defendant intentionally [retaliated] against the plaintiff remains at all times with the plaintiff.
Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981) (internal citations omitted) (quoting McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973)).
To establish a prima facie case of retaliation, a plaintiff must show that (1) he engaged in a statutorily protected activity, (2) a reasonable employee would have found the challenged action materially adverse,*fn2 and (3) there existed a causal connection between the protected activity and the materially adverse action. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-69 (2006); Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009). The plaintiff's burden is not great: he "need ...