The opinion of the court was delivered by: Richard W. Roberts United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Tommy J. Winston, an employee of the Smithsonian Institution ("Smithsonian") filed a three-count complaint against the Secretary of the Smithsonian,*fn1 seeking damages under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000 et seq., for discrimination based on race and color, for retaliation, and for a hostile work environment. (Am. Compl. ¶¶ 45-53.) The Smithsonian moves under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) to dismiss Winston's amended complaint or for summary judgment. Because Winston failed to exhaust his administrative remedies regarding his duty station transfer, but otherwise amply pled claims of discrimination, retaliation, and a hostile work environment, the Smithsonian's motion will be granted in part and denied in part.
Winston, an African American employee of the Smithsonian, is a Facilities Management Specialist. He began his employment there in 1995. (Am. Compl. ¶¶ 1, 21.) In January 2006, David Samec, Winston's supervisor, informed Winston that a colleague named Kendra Gastright had accused him of threatening her with violence during a meeting that occurred earlier in January. (Id. ¶ 22.) On January 23, 2006, Samec issued a memorandum to Winston reassigning him effective on January 24, 2006 from the East Mall Zone in Washington, D.C. to the Suitland Maryland Zone, a zone that Winston claims Smithsonian employees refer to as the "Black Zone." Winston believed that the reassignment was temporary because the memorandum did not state that the reassignment would be permanent. However, Winston acknowledged receipt of the memorandum and wrote on the bottom, "I do not concur. I feel my right[s] have been violated." (Id. ¶ 24; Def.'s Mem. in Supp. of Mot. for Dismissal ("Def.'s Mem.") Ex. 1.) After Winston relocated on January 24, 2006 to the Suitland Zone, he ceased performing duties related to his position in Washington, D.C. as a facility maintenance manager, and instead performed various functions of decreased responsibility, prestige, and importance. (Am. Compl. ¶ 25.) On February 7, 2006, Samec issued to Winston a proposal to suspend Winston for one day without pay, not for any alleged threats of violence, but for acting "inappropriately and unprofessionally" during the January meeting by not complying with Gastright's request that he cease responding to her sarcastically and teasing her. Winston alleges that the memorandum proposing the suspension failed to mention Winston's equal employment opportunity ("EEO") rights or how he could appeal the one-day suspension through the EEO process. (Id. ¶¶ 26-27.)
Winston appealed the one-day suspension to a deciding official named Nancy Bechtol, who reversed the suspension on April 3, 2006 and instead imposed a "Confirmation of Counseling." (Am. Compl. ¶ 28.) Bechtol's decision did not address Winston's reassignment to the Suitland Zone. (Id.) Winston alleges that the Smithsonian treated him differently than it treated his non-black colleagues, because Gastright, an Asian woman, was required only to issue a written apology and was not reassigned or effectively demoted after she uttered profanity and acted disrespectfully toward her colleagues. (Id. ¶ 29.) Winston contacted an EEO counselor on April 27, 2006 regarding his transfer and Bechtol's action. (Id. ¶ 5; Def.'s Mem. Ex. 4.) He later filed in June 2006 a formal administrative complaint, unsuccessfully pressing the same allegations with the agency and later on appeal to the Equal Employment Opportunity Commission ("EEOC"). (Am. Compl. ¶¶ 6-9; Def.'s Mem. Ex. 5.)
According to Winston, at a weekly managers meeting held the following year, Winston's Suitland supervisor, Maurice Evans, put two other employees, David Sidbury and James Cutler, in charge of snow removal. Sidbury informed Evans that he wanted to place an employee named Oscar Waters on his snow removal team, and Cutler stated that he wanted an employee named James Taylor to be named to his snow removal team. (Am. Compl. ¶¶ 31-32.) Evans instructed Cutler that Taylor could assist him with snow removal, but stated that Waters would not be allowed to participate in snow removal. (Id. ¶ 33.) The following day, contrary to Evans' directive, Sidbury enlisted Waters in snow removal. (Id.) Three weeks later, Evans issued to Winston a proposal to suspend him for seven days without pay for failing to inform Waters that he should not report for snow removal, and for overusing a cellular telephone. (Id. ¶ 36.) In April 2007, Bechtol issued a decision upholding Evans' recommendation to suspend Winston for seven days without pay. Winston served his suspension in May of 2007. According to Winston, several of his co-workers who were outside of his protected class have used their cellular telephones more than Winston used his, and were not disciplined for doing so. (Id. ¶¶ 41-44.)
Winston filed this action on August 3, 2007. The amended complaint alleges three violations of Title VII: discrimination based upon race and color by transferring Winston to the Suitland Zone in 2006 and suspending him without pay for seven days in 2007 (Count I); retaliation for his having filed his June 2006 formal complaint by suspending him for the seven days in 2007 (Count II); and discriminatory hostile work environment based in part upon the actions complained of in Counts I and II (Count III). (Am. Compl. ¶¶ 45-53.)
The Smithsonian moves to dismiss Winston's amended complaint or for summary judgment, arguing that Winston failed to timely exhaust his administrative remedies for his claim of discrimination based upon reassignment from Washington D.C. to Maryland; failed to rebut in the amended complaint the legitimate non-discriminatory reasons for his suspension; failed to establish a temporal link between his protected activity and the adverse employment action sufficient to support his claim of retaliation; and failed to sufficiently allege a claim of discriminatory hostile work environment because his hostile work environment claim consists of a mere repetition of the same discrete acts that form the basis of his other claims. Winston opposes the Smithsonian's motion, arguing that he timely exhausted his administrative remedies regarding Count I or that the deadline should be tolled because he lacked constructive knowledge of the 45-day deadline; that pretext need not be pled in a complaint; that he has pled evidence of a causal connection between the protected activity and the adverse personnel action and that the length of time between them was sufficiently short to infer the causal connection; and that the discrete acts and the Smithsonian's entire course of conduct that Winston cites sufficiently support his claim of a hostile work environment that was so severe or pervasive as to change the terms and conditions of Winston's employment.*fn2
A complaint can be dismissed under Federal Rule of Civil Procedure 12(b)(6) when a plaintiff fails to state a claim upon which relief can be granted. Peavey v. Holder, 657 F. Supp. 2d 180, 185 (D.D.C. 2009) (citing Fed. R. Civ. P. 12(b)(6)). "A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint." Smith-Thompson v. Dist. of Columbia, 657 F. Supp. 2d 123, 129 (D.D.C. 2009).
To survive a motion to dismiss, a complaint must contain sufficient factual matter, acceptable as true, to "state a claim to relief that is plausible on its face." . . . A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 570 (2007)). The complaint must be construed in the light most favorable to the plaintiff and "the court must assume the truth of all well-pleaded allegations." Warren v. District of Columbia, 353 F.3d 36, 39 (D.C. Cir. 2004). In deciding a motion brought under Rule 12(b)(6), a court does not consider matters outside the pleadings, but a court may consider on a motion to dismiss "the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint," Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002), or "documents 'upon which the plaintiff's complaint necessarily relies' even if the document is produced not by the plaintiff in the complaint but by the defendant in a motion to dismiss," Hinton v. Corr. Corp. of Am., 624 F. Supp. 2d 45, 46 (D.D.C. 2009) (quoting Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998)), such as the memorandum of reassignment attached as Exhibit 1 to the Smithsonian's motion to dismiss. (See Am. Compl. ¶ 24; Def.'s Mem. Ex. 1.)
However, "where both parties submit material outside the pleadings and 'the parties are not taken by surprise or deprived of a reasonable opportunity to contest facts averred outside the pleadings and the issues involved are discrete' legal issues, the court may convert the motion to a motion for summary judgment 'without providing notice or the opportunity for discovery to the parties.'" Highland Renovation Corp. v. Hanover Insurance Group, 620 F. Supp. 2d 79, 82 (quoting Tunica-Biloxi Tribe of La. v. United States, 577 F. Supp. 2d 382, 405 (D.D.C. 2008) and Smith v. United States, 518 F. Supp. 2d 139, 145, 155 (D.D.C. 2007)). Summary judgment is appropriately granted when the moving party demonstrates that there is no genuine issue as to any material fact and that moving party is entitled to judgment as a matter of law. Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009) (citing Fed. R. Civ. P. 56(c) and Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986)). "In considering a motion for summary judgment, [a court is to draw] all 'justifiable inferences' from the evidence . . . in favor of the non-movant." Cruz-Packer v. Dist. of Columbia, 539 F. Supp. 2d 181, 189 (D.D.C. 2008) (quoting Anderson, 477 U.S. at 255); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The court must determine "whether there is a need for ...