The opinion of the court was delivered by: James E. Boasberg United States District Judge
Plaintiff Reginald A. Blue was employed as an investigator at various Environmental Protection Agency offices across the country for more than fifteen years. In this lawsuit he alleges that he was subjected to a number of adverse actions by his employer, including having his responsibilities diminished and his salary reduced, being passed over for jobs, and, ultimately, being terminated from his position. Blue claims that the EPA, in taking these actions, violated Title VII by discriminating against him both because of his race (black) and as retaliation for engaging in protected activity (filing Equal Employment Opportunity complaints).
The EPA has now filed a Partial Motion for Judgment on the Pleadings or, in the alternative, for Summary Judgment. The Court will grant this Motion as to all claims that Blue has failed to administratively exhaust, leaving only a claim of race-based discrimination relating to his non-selection for a job in August 2008 and a claim of retaliation based on his termination in December 2008. In addition, the Court will deny without prejudice Defendant's request for summary judgment on the merits of the remaining retaliation claim; as such a request is premature prior to any discovery that could provide Blue with an opportunity to develop facts in his favor.
According to the Complaint, which at this juncture must be presumed true, Blue began working for the EPA in 1992 as a Special Agent assigned to the Criminal Investigation Division in the agency's New York office. Compl., ¶¶ 8-9. In 1999, he was reassigned to the Minneapolis office, where he remained until April 2003. Id., ¶ 10. He was then reassigned to the Philadelphia office for approximately one year, before being transferred to the agency's headquarters in Washington, D.C., in May 2004. Id., ¶ 11. Blue remained in the D.C. office until his termination in December 2008. Id., ¶ 12.
Plaintiff alleges that he was subjected to racial discrimination while employed at the Philadelphia and D.C. offices over a period of approximately five years. Id., ¶¶ 11-13. Blue claims that he experienced the following discriminatory acts:
* Efforts by his supervisors to diminish his authority, id., ¶¶ 13C, 27, 29;
* Refusal to permit Blue to apply for a "Rotational Assignment," id., ¶13H;
* Being overlooked for temporary development assignments "on at least two occasions," id., ¶ 24; and
* Being demoted to a lesser title and having his salary reduced by $900. Id., ¶14. Additionally, although not specifically alleged in the Complaint, Blue claims that in August of 2008 he was passed over for at least one position for which he was qualified. Opp. at 2. Blue informally contacted an EEO counselor in early September 2008 and subsequently filed a formal EEO complaint on September 29, challenging his August non-selection for the position of Assistant Director for Investigations, Criminal Investigations Division based on his race, age, and retaliation. Compl., ¶ 34; Opp. at 2.
Shortly before he submitted his EEO complaint, Blue's supervisors were informed of an issue with Blue's off-duty conduct -- namely, allegations of domestic abuse by Blue against his wife. Pl.'s Response to Def.'s Statement of Undisputed Material Facts (SUMF), ¶¶ 7-8. The agency conducted an investigation into the alleged facts, Compl., ¶ 36; Pl.'s Response to Def.'s SUMF, ¶ 9, and Blue was terminated from his position in December 2008. Compl., ¶ 33. The agency claims that the termination occurred because "Plaintiff had committed acts of domestic abuse against his wife and had exhibited a lack of candor" during the agency's internal investigation. Mot., Exh. 7 (Notice of Proposed Removal). Blue appealed the termination of his employment to the Merit Systems Protection Board (MSPB). Opp., ¶ 4. In his appeal, he argued that the agency's stated reason for his termination was merely pretext and that the actual reason for his discharge was "wrongful and illegal discriminatory and retaliatory conduct." Compl., ¶ 36. On July 27, 2009, the MSPB affirmed the agency's removal action. Mot., Exh. 3 (MSPB Initial Decision), aff'd Blue v. EPA, 2010 MSPB LEXIS 1369 (Apr. 12, 2010). Blue subsequently brought suit in this Court, and Defendant has now filed this Motion.
Defendant has moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) or, in the alternative, for summary judgment. A Rule 12(c) motion is evaluated under the same standard as a Rule 12(b)(6) motion to dismiss, see, e.g., Robinson--Reeder v. Am. Council on Educ., 532 F. Supp. 2d 6, 12 (D.D.C. 2008), and, like a 12(b)(6) motion, must be converted into a Rule 56 motion for summary judgment if "matters outside the pleadings are presented to and not excluded by the court." Fed. R. Civ. P. 12(d). Because matters outside of the pleadings have been presented and will be considered, see Section III(A)(1), infra, the Court treats this Motion as one for summary judgment.
Summary judgment may be granted if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is "material" if it is capable of affecting the substantive outcome of the litigation. Holcomb, 433 F.3d at 895; Liberty Lobby, 477 U.S. at 248. A dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby., 477 U.S. at 248; Holcomb, 433 F.3d at 895. "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record." Fed. R. Civ. P. 56(c)(1)(A).
The party seeking summary judgment "bears the heavy burden of establishing that the merits of his case are so clear that expedited action is justified." Taxpayers Watchdog, Inc., v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987). When a motion for summary judgment is under consideration, "the evidence of the non-movant[s] is to be believed, and all justifiable inferences are to be drawn in his favor." Liberty Lobby, 477 U.S. at 255; see also Mastro v. PEPCO, 447 F.3d 843, 850 (D.C. Cir. 2006); Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc). On a motion for summary judgment, the Court must "eschew making credibility determinations or weighing the evidence." Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007).
The nonmoving party's opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits, declarations, or other competent evidence, setting forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The non-movant is required to provide evidence that would permit a reasonable jury to find in its favor. Laningham v. United States Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the non-movant's evidence is "merely colorable" or "not significantly probative," summary judgment may be granted. Liberty Lobby, 477 U.S. at 249-50.
In Count I, Blue alleges race-based discrimination, and in Count II he alleges retaliation based on protected activity, both under Title VII. Id., ¶¶ 37-42. (While Blue also makes reference to age-based discrimination within his EEO complaint, see Mot., Exh. 2 (EEO Counselor's Report) at 2, he does not raise any such claims in his Complaint, and the Court will thus not address them here.) In seeking judgment on the pleadings, Defendant argues that the bulk of the allegations in both counts should be dismissed for Plaintiff's failure to exhaust his administrative remedies. Mot. at 1. As to what remains, Defendant also contends that Plaintiff's retaliation claim relating to his termination should be dismissed on the merits. The Court will deal with each count in turn.
Ultimately, the Court agrees with Defendant that Plaintiff has only exhausted Count I's race-based discrimination claim relating to his August 2008 non-selection and Count II's retaliation-based claim concerning his termination. It will, consequently, dismiss all other claims for failure to exhaust administrative remedies. The Court, however, rejects as premature Defendant's arguments regarding the merits of the remaining retaliation claim, finding that Plaintiff deserves some discovery to support his argument of pretext.
A. Count I: Race-Based Discrimination
In Count I, Plaintiff purports to bring a race-based Title VII discrimination claim. While the Complaint captions this count as a "Pattern and Practice of Discrimination" claim, Compl. at 16, and refers to Defendant's alleged "pattern and practice of discriminating against African American males in the terms and conditions of employment," id., ¶ 38, the Court will evaluate Plaintiff's claim as it concerns him individually, as Title VII does not provide for pattern-and-practice challenges outside of class-based claims, which Plaintiff here does not purport to bring. See Lowery v. Circuit City Stores, 158 F.3d 742, 760--61 (4th Cir. 1998) ("[I]ndividuals do not have a private, non-class cause of action for pattern or practice discrimination"), vacated on other grounds, 527 U.S. 1031 (1999); Babrocky v. Jewel Food Co., 773 F.2d 857, 866--67 n.6 (7th Cir. 1985) (noting that pattern-or-practice "suits, by their very nature, involve claims of classwide discrimination" (internal citations omitted)); Hayes v. Chao, 592 F. Supp. 2d 51, 56 (D.D.C. 2008) (explaining that pattern-or-practice claims under Title VII cannot be brought by an individual plaintiff).
Having dispensed with Plaintiff's pattern-and practice claim, the Court will now turn to the thrust of Defendant's argument -- namely, lack of exhaustion -- before briefly ...