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Alston v. Johnson

United States District Court, District of Columbia

September 23, 2016

JEH CHARLES JOHNSON, in his official capacity as Secretary of the DHS Defendant.


         Plaintiff Edward Allston III alleges that he was not selected for a promotion because of his race, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq, and the Civil Rights Act of 1991, 42 U.S.C. § 1981a, et seq. Defendant moves to dismiss the suit under Federal Rule of Civil Procedure 12(b)(6), or, in the alternative, for summary judgment under Federal Rule of Civil Procedure 56. For the reasons stated herein, Defendant's motion is DENIED.

         I. BACKGROUND

         Plaintiff is an African American male, who began his employment with the United States Secret Service in February 1998. (Compl. ¶ 14). From August 2009 to August 2012, he worked as a GS-13 Senior Special Agent, Criminal Investigator, in the Office of Investigations, Forensics Services Division, Polygraph Operations. (Id. ¶¶ 16, 18). In August 2012, Plaintiff applied for one of two vacant GS-14 Assistant to the Special Agent in Charge Polygraph Program Manager positions in his office. (Id. ¶ 24). The vacancy announcement stated that applicants had to be verified Secret Service polygraph examiners, and that applicants who had operations experience within the polygraph program, or a comparable field, were preferred. (Def. Mot. to Dismiss, Ex. 10 at 8). Plaintiff was placed on the Best Qualified List to fill one of the vacancies. (Compl. ¶ 24).

         For GS-14 and 15 promotions in the Secret Service, the standard practice is for the Assistant Director of the office with the vacancy to recommend a candidate to an Advisory Board. (Compl. ¶ 26; Def. Mot. to Dismiss, Ex. 3 at 2-3). The Advisory Board in turn makes a recommendation to the Director of the Secret Service, who then makes the final decision. (Compl. ¶ 28; Def. Mot. to Dismiss, Ex. 3 at 2).

         The Assistant Director in Plaintiff's office, who knew Plaintiff personally, was David O'Connor. (Compl. ¶¶ 19, 21). Plaintiff alleges that some time in or around 2005, O'Connor was part of a group of Secret Service supervisors who sent emails containing racist and derogatory language. (Id. ¶ 20). Plaintiff also alleges that the Advisory Board was made up mostly of white individuals. (Id. ¶ 26). O'Connor recommended two other applicants, both of whom are white, and both of whom eventually received the promotions, instead of Plaintiff. (Id. ¶¶ 26, 29). Plaintiff alleges that he was the best qualified applicant for the position because he had the most education and applicable experience for the position, including being a certified polygraph examiner, and that neither of the individuals selected were certified polygraph examiners at the time. (Id. ¶¶ 25, 31-32).

         On or around September 7, 2012, Plaintiff contacted an EEO counselor and filed an informal complaint of racial discrimination. (Id. ¶ 9). He then filed a formal Individual Complaint of Employment Discrimination based on race on October 19, 2012, requesting an immediate promotion and punitive damages. (Compl. ¶ 10; Def. Mot. to Dismiss, Ex. 14). On January 30, 2014, he requested a right to sue letter in order to file his discrimination complaint in federal court, and on July 2, 2014, the EEOC Administrative Judge issued an order of dismissal in order to allow Plaintiff file a complaint in federal court, noting that more than 180 days had passed since Plaintiff had filed his EEOC complaint. (Id., Exs. 18, 19). But on August 7, 2014, the Director of the Complaints Management and Adjudication Section of the Office for Civil Rights and Civil Liberties in the Department of Homeland Security served Plaintiff with a Notification of Intent to Issue Final Action. (Id., Ex. 20). The Notification stated that the agency did not deem Plaintiff's administrative complaint fully withdrawn, and in order to withdraw completely, Plaintiff had to submit a written request to the agency, or submit a copy of a civil action filed in a federal district court. (Id.). Plaintiff subsequently submitted a request for a full withdrawal from the administrative process, and filed this suit on November 10, 2014. (Id., Ex. 12).

         Defendant raises two arguments in support of his motion: first, that Plaintiff failed to exhaust his administrative remedies, and second, that Plaintiff fails to make out a cognizable claim of discrimination.


         A motion to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state a claim tests the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is plausible when the factual content allows the court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Thus, although a plaintiff may survive a Rule 12(b)(6) motion even where “recovery is very remote and unlikely, ” the facts alleged in the complaint “must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (internal quotation marks omitted). Evaluating a 12(b)(6) motion is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.

         Summary judgment is appropriate where there is no disputed genuine issue of material fact, and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In determining whether a genuine issue of material fact exists, the court must view all facts in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The moving party bears the “initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the ‘pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . .' which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at 323. The nonmoving party, in response, must “go beyond the pleadings and by [its] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file, ' designate ‘specific facts showing that there is a genuine issue for trial.'” Id. at 324. “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (citations omitted). “[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Id. at 249.

         III. ANALYSIS

         a. Summary Judgment

         In evaluating a motion to dismiss, “the court may consider the facts alleged in the complaint, documents attached thereto or incorporated therein, and matters of which it may take judicial notice.” Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007) (quoting Stewart v. Nat'l Educ. Ass'n, 471 F.3d 169, 173 (D.C. Cir. 2006)) (internal quotation marks omitted). “[W]here a document is referred to in the complaint and is central to the plaintiff's claim, such a document attached to the motion papers may be considered without converting the motion to one for summary judgment. . . . Moreover, a document need not be mentioned by name to be considered ‘referred to' or ‘incorporated by reference' into the complaint.” Strumsky v. Washington Post Co., 842 F.Supp.2d 215, 217-18 (D.D.C. 2012) (citations omitted) (internal quotation marks omitted). Otherwise, “a plaintiff with a legally deficient claim could survive a motion to dismiss simply by failing to attach a dispositive document on which it relied.” Id. (internal quotation marks omitted). However, “[i]f, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.” Fed.R.Civ.P. 12(d).

         “The decision to convert a motion to dismiss into a motion for summary judgment is committed to the sound discretion of the trial court.” Ryan-White v. Blank, 922 F.Supp.2d 19, 22 (D.D.C. 2013) (quoting Flynn v. Tiede-Zoeller, Inc., 412 F.Supp.2d 46, 50 (D.D.C. 2006)) (internal quotation marks omitted). A court should convert the motion “[i]f extra-pleading evidence ‘is comprehensive and will enable a rational determination of a summary judgment motion, '” but, when extra-pleading evidence is “scanty, incomplete, or inconclusive, the district court is more likely to ...

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