TONY E. PASCHAL, 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

Plaintiff, 

v. 

DISTRICT OF COLUMBIA, Civil Action No. 13-1608 (GK) 

Defendant. 

MEMORANDUM OPINION 

Plaintiff Tony E. Paschal ("Plaintiff" or "Paschal") brings 

this action against Defendant the District of Columbia 

("Defendant") for retaliation and a hostile work environment in 

violation of the Americans with Disabilities Act of 1990 

("ADA"), 42 U.S.C. §§ 12203, 12132, and 12112(a). 

This matter is presently before the Court on Defendant's 

Motion to Dismiss or in the Alternative Motion for Summary 

Judgment [Dkt. No. 18]. Upon consideration of the Motion, 

Opposition, and Reply, the entire record herein, and for the 

reasons stated below, Defendant's Motion to Dismiss is granted 

in part and denied in part, Defendant's Motion for Summary 

Judgment is denied without prejudice, and Plaintiff's Motion for 

a Stay to Obtain Discovery is denied as moot. 
I . BACKGROUND 

A. Factual Background1 

On October 29, 2010, Plaintiff Tony E. Paschal started work 

as a Business Relations Specialist with the District of Columbia 

Department on Disability Services ("DDS"). Second Amended 

Complaint ("SAC") ~~ 2, 10. DDS is a service provider and 

advocate for individuals with disabilities seeking employment in 

the District of Columbia. SAC ~~ 8-9. Plaintiff's duties for DDS 

included outreach and engagement with employers to create 

relationships with the business community. SAC ~ 10. Plaintiff 

would leverage those relationships to find job opportunities for 

qualified DDS clients. SAC ~ 10. 

Plaintiff has lupus, type 1 diabetes, and rheumatoid 

arthritis, which he alleges substantially limit one or more 

major life activities, and are thus properly considered 

disabilities. SAC ~ 6. Plaintiff informed DDS of the nature of 

his disability when he was hired. SAC ~ 11. 

1 Defendant has requested Summary Judgment in the alternative 

to his Motion to Dismiss, but for the reasons set forth below, 

Summary Judgment is premature at this time. 

For purposes of ruling on a motion to dismiss, the factual 

allegations of the complaint must be presumed to be true and 

liberally construed in favor of the plaintiff. Aktieselskabet AF 

21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 15 (D.C. Cir. 

2 008) ; Shear v. Nat' l Rifle Ass' n of Am., 606 F. 2d 1251, 1253 

(D.C. Cir. 1979). Therefore, the facts set forth herein are 

taken from the Second Amended Complaint ("SAC") [Dkt. No. 11]. 

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Plaintiff alleges that beginning in November of 2011, his 

direct supervisor, Sylvia Bailey-Charles, "repeatedly made 

negative, derogatory statements to [him] and other staff about 

people with disabilities--in particular, the agency's clients." 

SAC ~~ 12, 13. The only such comment specifically alleged in his 

SAC, however, is that Ms. Bailey-Charles once commented that 

disabled persons should be "cleaning toilets . because they 

[are] handicapped." SAC ~ 13. On one occasion, "Ms. BaileyCharles sent job notices for janitorial and dishwashing work to 

a [DDS] client who was a former practicing physician with a 

medical degree." Id. 

Plaintiff decided to meet with an EEO counselor to discuss 

his concerns about Ms. Bailey-Charles. SAC ~ 14. Despite 

scheduling a meeting for May 2, 2012, which Plaintiff noted on 

his online work calendar, Id., it did not take place until May 

29, 2012. 

In the interim, on or about May 22, 2012, Plaintiff met 

with Ms. Bailey-Charles and Sharon Vaughn-Roach, the Program 

Operations Manager for the District of Columbia Rehabilitation 

Services Administration. SAC ~ 15. At the meeting, Ms. BaileyCharles indicated that she had read Plaintiff's calendar entry 

noting his date for meeting with an EEO counselor. SAC ~ 15. 

Plaintiff contends that Ms. Bailey-Charles made two threats at 

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that meeting: (1) to lower his pay grade, and (2) to put him on 

a Performance Improvement Plan ("PIP"). SAC ~ 15. 

On May 29, 2012, Paschal met with EEO Counselor David 

Prince. SAC ~ 17. 

On June 26, 2012, Ms. Bailey-Charles forwarded a PIP to 

Plaintiff and stated that the decision to issue the PIP was 

based on his alleged "lack of performance" during the 

performance period that ran from October 2011 through September 

2012. SAC ~ 18. 

On August 13, 2012, Plaintiff filed a Charge of 

Discrimination with the District of Columbia Office of Human 

Rights ("OHR"), alleging that he had been discriminated against 

on the basis of disability. SAC ~ 2 0. Plaintiff claims that 

since filing that charge, he continues to feel "intimidated" by 

Ms. Bailey-Charles. SAC~ 21. On November 29, 2012, Plaintiff 

again met with Ms. Bailey-Charles and Ms. Vaughn-Roach. Id. At 

that meeting, he felt that the two managers "bull[ied]" him, but 

did not allege any specific actions. Id. 

In November 2012, at Ms. Bailey-Charles' behest, Plaintiff 

stopped attending networking events and other meetings that he 

had routinely attended as part of his work. SAC ~ 22. Plaintiff 

alleges that the events and meetings were "prime opportunities" 

to network on behalf of DDS's clients and that exclusion from 

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these contacts interfered with his ability to perform his job 

duties. SAC~ 22. 

On December 12, 2012, Ms. Bailey-Charles gave Plaintiff a 

negative Annual Performance Evaluation, rating him a "Marginal 

Performer" for the period from October 1, 2011 through September 

30, 2012. SAC~ 23. 

On December 27, 2012, Plaintiff met with Ms. Bailey-Charles 

and Ms. Vaughn-Roach for his Annual Performance Review. SAC ~ 

24. At that meeting, both managers threatened to terminate 

Plaintiff 1 s employment or to demote him. SAC ~ 24. 

On February 12, 2013, Ms. Bailey-Charles informed Plaintiff 

that she would change his job description, although that change 

did not occur because of certain provisions in Plaintiff,s union 

contract and DDS personnel procedures. SAC ~ 25. 

On May 15, 2013, OHR issued a Letter of Determination 

finding No Probable Cause for Plaintiff 1 s hostile work 

environment and retaliation claims. SAC ~ 29. He timely 

submitted a request for reconsideration, and on July 24, 2013, 

OHR affirmed its findings. SAC ~ 30-31. 

B. Procedural Background 

On October 21, 2013, Paschal filed his Complaint, alleging 

retaliation and hostile work environment under the ADA [Dkt. No. 

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1] . On January 24, 2014, Plaintiff filed his Second Amended 

Complaint [Dkt. No. 11]. 

On February 18, 2014, Defendant filed a Motion to Dismiss 

or in the Alternative Motion for Summary Judgment [Dkt. No. 18]. 

On March 7, 2014, Plaintiff submitted a Rule 56(d) Motion for a 

Stay to Obtain Discovery [Dkt. No. 21] and a Memorandum of 

Points and Authorities in Opposition to Defendant's Motion to 

Dismiss or in the Alternative Motion for Summary Judgment, and 

in Support of Plaintiff's Rule 56(d) Motion [Dkt. No. 22]. 

II. STANDARD OF REVIEW 

To survive a motion to dismiss under Rule 12(b) (6), a 

plaintiff need only plead "enough facts to state a claim to 

relief that is plausible on its face" and to "nudge[ [his or 

her] claims across the line from conceivable to plausible." Bell 

Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). "[O]nce a 

claim has been stated adequately, it may be supported by showing 

any set of facts consistent with the allegations in the 

complaint." Id. at 563. 

Under the Twombly standard, a "court deciding a motion to 

dismiss must not make any judgment about the probability of the 

plaintiffs' success . [,] must assume all the allegations in 

the complaint are true (even if doubtful in fact) [, and] 

must give the plaintiff the benefit of all reasonable inferences 

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derived from the facts alleged." Aktieselskabet AF 21. November 

2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir. 2008) 

(internal quotation marks and citations omitted). A complaint 

will not suffice, however, if it "tenders 'naked assertion[s]' 

devoid of 'further factual enhancement.'" Ashcroft v. Iqbal, 556 

u.s. 662, 678 (2009) (quoting Twombly, 550 u.s. at 557) 

(alteration in Iqbal). 

III. ANALYSIS 

A. Hostile Work Environment 

In order to adequately plead a claim of hostile work 

environment, Plaintiff must allege facts showing "that his 

employer subjected him to 'discriminatory intimidation, 

ridicule, and insult' 'sufficiently severe or pervasive to 

alter the conditions of the victim's employment and create an 

abusive working environment. '" Baloch v. Kempthorne, 550 F.3d 

1191, 1201 (D.C. Cir. 2008) (quoting Harris v. Forklift Sys., 

Inc., 510 U.S. 17, 21 (1993)). "To determine whether a hostile 

work environment exists, the court looks to the totality of the 

circumstances, including the frequency of the discriminatory 

conduct, its severity, its offensiveness, and whether it 

interferes with an employee's work performance." Id. (citing 

Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998)). 

The Supreme Court has made clear that in order to prevent anti-

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discrimination laws from becoming a "general civility code [,]" 

"offhand comments, and isolated incidents (unless extremely 

serious) will not amount to discriminatory changes in the terms 

and conditions of employment." Faragher, 524 u.s. at 788 

(internal citations and quotation marks omitted). 

Plaintiff has made only two specific, factual allegations 

on which to base his hostile work environment claim: (1) Ms. 

Bailey-Charles' comment that disabled persons should be 

"cleaning toilets because they were handicapped [;]" and 

( 2) Ms. Bailey-Charles' transmission of job notices for 

janitorial and dishwashing work to a disabled former practicing 

physician. SAC ~ 13. 

With respect to "well-pleaded factual allegations[,]" "a 

court should assume their veracity and then determine whether 

they plausibly give rise to an entitlement to relief." Iqbal, 

556 U.S. at 679. These two instances simply do not satisfy this 

standard. Without more, the two examples Plaintiff provides are 

the very "isolated incidents of offensive conduct [that] do not 

amount to actionable harassment." Smith v. Jackson, 539 F. Supp. 

2d 116, 138 (D.D.C. 2008) (quoting Stewart v. Evans, 275 F.3d 

1126, 1134 (D.C. Cir. 2002)). 

Plaintiff does allege that "Ms. Bailey-Charles repeatedly 

made negative, derogatory statements 

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about people with 
disabilities[.]" SAC , 13. However, even if Ms. Bailey-Charles' 

single, quoted comment is taken as a representative example, 

Plaintiff has not met his burden. Plaintiff must show that 

Defendant's conduct was "sufficiently severe or pervasive to 

alter the conditions of the victim's employment and create an 

abusive working environment." Baloch, 550 F.3d at 1201 (internal 

citations and quotation marks omitted). Because Ms. BaileyCharles' comment--even if repeated--does not rise to this level 

of severity. Count II of the Complaint shall be dismissed. 

B. Retaliation 

A well-pleaded retaliation claim must allege that: "(1) 

[the plaintiff] engaged in protected activity, ( 2) [the 

plaintiff] was subjected to adverse action by the employer, and 

(3) there existed a causal link between the adverse action and 

the protected activity." Jones v. Wash. Metro. Area Trans. 

Auth., 205 F.3d 428, 433 (D.C. Cir. 2000) (internal citations 

omitted); Taylor v. Solis, 571 F.3d 1313, 1320 (D.C. Cir. 2009) 

("In order to prevail upon a claim of unlawful retaliation, an 

employee must show she engaged in protected activity, as a 

consequence of which her employer took a materially adverse 

action against her." (internal citations and quotation marks 

omitted)). Plaintiff argues--and Defendant does not contest--

that he "engaged in a statutorily protected activity when he 

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scheduled a meeting with an EEO counselor." SAC ~ 34. The Court, 

therefore, must determine whether the conduct alleged by 

Plaintiff constitutes an adverse action, and if so, whether the 

pleadings and all reasonable inferences to be drawn from them 

plausibly present a causal link between the EEO meeting and the 

alleged retaliatory conduct. Aktieselskabet, 525 F.3d at 17; 

Jones, 205 F.3d at 433. 

1. Adverse Action 

"Adverse actions in the retaliation context encompass a 

broader sweep of actions than those in a pure discrimination 

claim." Baloch v. Kempthorne, 550 F.3d 1191, 1198 n.4 (D.C. Cir. 

2008) (internal quotation marks omitted) . Retaliation actions 

are "not limited to [those] that affect the terms and conditions 

of employment." Burlington N. & Santa Fe Ry. Co. v. White, 54 8 

U.S. 53, 64 (2006) . "A materially adverse action is one that 

'could well dissuade a reasonable worker from making or 

supporting a charge of discrimination.'" Porter v. Shah, 606 

F.3d 809, 817-18 (D.C. Cir. 2010) (quoting Burlington Northern, 

548 u.s. at 57) . However, "petty slights, [and] minor 

annoyances" are normally not enough to deter workers from 

exercising their rights. Burlington Northern, 548 U.S. at 68. 

Plaintiff contends that several of Defendant's actions were 

materially adverse: Ms. Bailey-Charles' threat and eventual 

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imposition of the PIP, her assignment of a "Marginal Performer" 

rating, her threat to lower Plaintiff's pay grade, Ms. BaileyCharles' and Ms. Vaughn-Roach's threat to terminate or demote 

Plaintiff, the change in work duties and later threat to change 

Plaintiff's job description, and Plaintiff's feeling of 

intimidation and sense that Ms. Bailey-Charles and Ms. VaughnRoach tried to "bully" him. 

a. Perfor.mance Rating 

Improvement Plan 

and Perfor.mance 

Plaintiff's "Marginal Performer" rating and Performance 

Improvement Plan ("PIP") are best considered simultaneously 

because our Court of Appeals has held that together such actions 

may constitute an adverse action. Porter v. Shah, 606 F.3d 809, 

818 (D.C. Cir. 2010). Plaintiff points to Porter, 606 F.3d at 

818, as support for his contention that both the rating and the 

PIP constitute materially adverse actions in this case. Pl. 's 

Opp'n at 10. Defendant contends that Porter held that a 

particular performance report was not an adverse action "because 

it did not affect plaintiff's 'position, grade level, salary, or 

promotion opportunities.'" Def. 's Reply at 4 (quoting Porter, 

606 F.3d at 818) . 2 

2 Defendant also argues that the facts of 

distinct from those in Porter because Plaintiff 

successfully completed his PIP and successfully 

this case 

in this 

appealed 

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are 

case 

his 
In fact, Porter involved two separate interim performance 

reviews. 606 F.3d at 818. The first "was delivered orally, with 

no written record placed in Porter's personnel files, and it was 

superseded by his year-end annual review." Id. The Court of 

Appeals ruled that this evaluation was not an adverse action. 

Id. The second evaluation, delivered in a subsequent year, "was 

in writing [and] . was placed in Porter's personnel file[,]" 

despite a policy that normally excluded interim reviews from 

personnel files. Id. Moreover, the second evaluation was 

accompanied by a PIP. Id. This time, the Court of Appeals ruled 

that " [g] i ven the serious consequences affecting Porter's 

position, grade level, salary, or promotion opportunities, [the 

second, written] negative assessment together with [a] PIP 

constituted a material adverse action." Id. (internal quotation 

marks omit ted) (citing Baloch, 550 F.3d at 1199; Taylor v. 

Solis, 571 F.3d 1313, 1321 (D.C. Cir. 2009)). 

Plaintiff alleges that Defendant gave him both a negative 

performance rating and placed him on a PIP for the performance 

period that ran from October 2011 to September 2012. SAC ~~ 18, 

23. Plaintiff further alleges that the "negative performance 

evaluation and the PIP exposed [him] to [potential] removal or 

performance rating. Def. 's Reply at 4-5. Since that argument 

rests on facts that are not alleged in Plaintiff's pleadings, it 

cannot be addressed properly in a Motion to Dismiss. 

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reassignment, and they had a detrimental effect on his 

responsibilities and promotion opportunities." SAC 36. 

Defendant's alleged actions are therefore analogous to the 

second evaluation considered by the Porter Court and 

consequently, qualify as materially adverse actions. 3 

Plaintiff need not allege that he was denied a promotion, 

discharged, or received a salary reduction; he "must point to an 

action that a reasonable employee would have found materially 

adverse." Bonnette v. Shinseki, 907 F. Supp. 2d 54, 69-70 

(D.D.C. 2012) (internal quotation marks omitted). Plaintiff has 

done so here. 

3 Defendant looks to other authority to support its view. 

Citing Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003) and 

Brown v. Brody, 199 F.3d 446, 457-58 (D.C. Cir. 1999), Defendant 

contends that a PIP or a negative review can constitute adverse 

actions only when accompanied by a present effect on grade or 

salary. Def.'s Mot. at 11-12. However, the Supreme Court's more 

recent opinion in Burlington Northern, 548 U.S. at 64, makes 

clear that adverse actions are "not limited to discriminatory 

actions that affect the terms and conditions of employment." Our 

Court of Appeals has concluded that the retaliation standard 

applied in Brown v. Brody--that a plaintiff must show a 

materially adverse change in the terms and conditions' of 

employment--was abrogated by Burlington Northern. Steele v. 

Schafer, 535 F.3d 689, 692-696 (D.C. Cir. 2008). 

Moreover, in Porter (decided after Burlington Northern) our 

Court of Appeals made no finding that Melvin Porter had in fact 

experienced a reduction in grade or salary. Instead the Court 

found that "the rating and the PIP could expose him to removal, 

reduction in grade, withholding of within grade increase or 

reassignment." Porter, 606 F.3d at 818 (emphasis added). 

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b. Threats of Demotion and Ter.mination 

Plaintiff alleges that Ms. Bailey-Charles threatened him on 

two occasions. First, on or about May 22, 2012, Ms. BaileyCharles "threatened to lower [Plaintiff]'s pay grade or put him 

on a [PIP]." SAC ~ 15. Second, in a meeting on December 27, 2012 

to discuss his annual performance evaluation, both Ms. BaileyCharles and Ms. Vaughn-Roach "threatened to terminate 

[Plaintiff's] employment or demote him." SAC ~ 24. 

The threats of demotion and termination were made during 

conversations with Plaintiff about the PIP and "Marginal 

Performance" evaluation. The threats--and their timing and 

context--therefore, provide strong support to Plaintiff's 

allegation that the "negative performance evaluation and the PIP 

exposed [him] to removal or reassignment." SAC ~ 36. 

c. Change in Duties and Proposed Change in 

Job Description 

Plaintiff relies exclusively on Burlington Northern to 

support his argument that denial of the opportunity to attend 

networking events and other meetings constituted an adverse 

action. Pl. 's Opp' n at 11-12. That case, however, offers only 

weak support for Plaintiff's position. 4 Burlington Northern 

4 Plaintiff, however, is correct to point out that Burlington 

Northern supersedes previous precedent in this Circuit that 

would have required adverse actions that affect "the terms and 

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involved the transfer of a forklift operator to a general 

laborer position. There, "the jury had before it considerable 

evidence that the track laborer duties were by all accounts more 

arduous and dirtier; that the forklift operator position 

required more qualifications, which is an indication of 

prestige; and that the forklift operator position was 

objectively considered a better job and the male employees 

resented [the plaintiff] for occupying it." Burlington Northern, 

548 U.S. at 71. The conduct Plaintiff alleges does not come 

close to the conduct in Burlington Northern. 

Our Court of Appeals has made clear its "hesitancy to 

engage in judicial micromanagement of business practices by 

second-guessing employers' decisions about which of several 

qualified employees will work on a particular assignment." 

Baloch v. Kempthorne, 550 F.3d 1191, 1197 (D.C. Cir. 2008); see 

e.g., Taylor v. Solis, 571 F. 3d 1313, 1321 (D.C. Cir. 2009) (an 

employer did not take an adverse action by "slow[ing] the 

processing of [an employee's] cases and 

require[ing] her . to submit biweekly reports on the status 

of her work.") . Accordingly, it has held that an employee did 

not suffer "materially adverse consequences" when he "no longer 

conditions of employment" 

claim. ~~~~~~~~~~~ Steele v. Schafer, 

2008) . 

in order to make out a 

535 F.3d 689, 692-696 

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retaliation 

(D.C. Cir. 
attended management meetings or received management-related emails and other communications" for "several months [.]" Forkkio 

v. Powell, 306 F.3d 1127, 1131 (D.C. Cir. 2002). 

Plaintiff must show that the change in his duties were not 

just "petty slights" but "could well dissuade a reasonable 

worker from making or supporting a charge of discrimination." 

Burlington Northern, 548 u.s. at 57, 68. Denial of the 

opportunity to attend networking events and meetings falls short 

of that requirement. 

Finally, Plaintiff states that the proposed change in job 

description, if it had come to pass, "would have been more 

onerous, or would have involved 'duties that are less desirable 

than others.'" Pl.'s Opp. at 12 (quoting Burlington Northern, 

548 U.S. at 70) . However, he offers no factual allegations to 

support his speculation. "Alleged harms" that fall short of 

"firing or a significant change in benefits" "must not be unduly 

speculative." Bridgeforth v. Jewell, 721 F.3d 661, 663 (D.C. 

Cir. 2013) (internal citations and quotation marks omitted) . 

Consequently, the change in duties and proposed change in job 

description do not, as alleged, constitute adverse actions. 

d. Bullying and Intimidation 

Finally, Plaintiff contends that he felt "intimidated" and 

"bull[ied]" in a meeting with Ms. Bailey-Charles and Ms. Vaughn-

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Roach. SAC ~ 21. Plaintiff's contentions, without more, are the 

sort of "petty slights, minor annoyances, and simple lack of 

good manners" that are not actionable as retaliation. Burlington 

Northern, 548 U. 8. at 68. Moreover, our Court of Appeals has 

held that even "disproportionate" "profanity-laden yelling" may 

constitute the variety of "sporadic verbal altercations or 

disagreements [that] do not qualify as adverse actions for 

purposes of retaliation claims." Baloch, 550 F.3d at 1199. 

Consequently, these allegations do not constitute adverse 

action. 

Although, not all of Defendant's alleged conduct rises to 

the level of a materially adverse action, Plaintiff's 

allegations related to the threats, negative performance review, 

and PIP are enough to adequately plead his retaliation claim. 

2. Causal Link Between the Adverse Action and the 

Protected Activity 

Defendant argues that because "Plaintiff [did] not allege 

that [Ms.] Bailey-Charles or [Ms.] Vaughn-Roach specifically 

linked his calendar entry to pay or the proposed PIP[,]" there 

is no sufficient causal link between the protected activity and 

alleged adverse action. Def.'s Mot. at 5. Defendant is mistaken. 

A "causal connection may be established by showing that 

the employer had knowledge of the employee's protected activity, 

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and that the adverse . action took place shortly after that 

activity." Rochon v. Gonzales, 438 F.3d 1211, 1220 (D.C. Cir. 

2006) (quoting Mitchell v. Baldridge, 759 F.2d 80, 86 (D.C. Cir. 

1985)); see also Alston v. D.C., 561 F. Supp. 2d 29, 43 (D.D.C. 

2 008) ("a close temporal connection between the protected 

activity and the adverse action can indeed support an inference 

of causation.") (internal quotation marks omitted). 

Defendant does not dispute that Plaintiff engaged in 

protected activity when he scheduled a meeting with an EEO 

counselor. Nor does Defendant dispute that the actual meeting 

with the EEO counselor was protected. Ms. Bailey-Charles 

demonstrated her knowledge of the protected activity and 

threatened an adverse action in her May 22, 2012, conversation 

with Plaintiff. SAC ~ 15. She took the threatened action by 

placing Plaintiff on a PIP just over a month thereafter on June 

26, 2012. SAC~ 18. Based on these allegations, there is no 

question that a plausible causal relationship has been 

adequately pleaded. 

Defendant also argues that "[f]rom the facts alleged, it is 

as likely that [P]laintiff was placed on a PIP because of 

performance problems, as it is that it was retaliation for 

seeing an EEO counselor." De£.' s Reply at 4. Plaintiff "is not 

required, however, in order to state a claim of retaliation, to 

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allege facts sufficient to negate [Defendant's] alternative 

explanations for its actions-whatever they may turn out to be." 

Rochon, 43 8 F. 3d at 122 0. Given that Plaintiff is entitled to 

all reasonable inferences that arise from his allegations, 

Aktieselskabet, 52 5 F. 3d at 17, it is more than reasonable to 

infer that Ms. Bailey-Charles was retaliating against him 

because of his EEO meeting. Plaintiff has sufficiently alleged 

that he "engaged in protected activity, as a consequence of 

which [his] employer took a materially adverse action against 

[him]" and accordingly, has adequately pleaded his claim of 

unlawful retaliation. Taylor, 571 F.3d at 1320. 

C. Motion for Summary Judgment and Motion to Stay 

In the alternative to its Motion to Dismiss, Defendant 

requests Summary Judgment on Counts I and II of Plaintiff's 

Complaint. Def. 's Mot. [Dkt. No. 18] . Plaintiff asks the Court 

to deny Defendant's Motion for Summary Judgment as premature and 

to treat the District's motion purely as a motion to dismiss. 

Pl.'s Opp'n at 19 [Dkt. No. 22]. In the alternative, Plaintiff 

requests a Stay to Obtain Discovery pursuant to Fed. R. Civ. P. 

56(d). Pl.'s Mot. for a Stay to Obtain Disc. [Dkt. 21] 

At the time of Defendant's Motion, no discovery had been 

had by either party. Pl.'s Mot. for at Stay to Obtain Discovery 

at 1. Ordinarily, that alone would make summary judgment 

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premature. Hollabaugh v. Office of the Architect of the Capitol, 

847 F. Supp. 2d 57, 60 (D.D.C. 2012) (holding that a motion for 

summary judgment was premature in employment discrimination suit 

where no discovery had been conducted). The Court notes, 

moreover, that Defendant--prior to filing its Motion for Summary 

Judgment--requested a stay of discovery. See Joint Status Report 

(July 30, 2014) [Dkt. No. 27] . Our Court of Appeals has made 

clear that "fundamentally, under the Federal Rules of Civil 

Procedure, when a Rule 12(b) (6) motion to dismiss is converted 

into a motion for summary judgment, all parties must be given a 

reasonable opportunity to present all material made pertinent to 

such a motion by Rule 56 [, and] it is settled that the term 

'reasonable opportunity' includes the opportunity to pursue 

reasonable discovery." First Chicago Int' l v. United Exch. Co. , 

Ltd. I 836 F.2d 1375, 1380-81 (D.C. Cir. 1988). Therefore, 

Defendant's Motion for Summary Judgment is denied without 

prejudice. 

IV. CONCLUSION 

For the foregoing reasons, Defendant's Motion to Dismiss is 

granted in part and denied in part, Defendant's Motion for 

Summary Judgment is denied without prejudice and Plaintiff's 

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Motion for a Stay to Obtain Discovery is denied as moot. An 

Order shall accompany this Memorandum Opinion. 

August~, 2014 

Judge 

Copies to: attorneys on record via ECF 

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