United States District Court, District of Columbia
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.
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. ¶
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).
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).
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).
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
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.
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
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).
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 ...