                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



STEPHANIE RICHIE,

        Plaintiff,
                v.                                        Civil Action No. 11-1884 (JDB)
TOM VILSACK, Secretary, U.S.
Department of Agriculture,

        Defendant.


                           MEMORANDUM OPINION & ORDER

       Plaintiff Stephanie Richie, an employee of the U.S. Department of Agriculture (USDA),

has sued Tom Vilsack, Secretary of USDA, asserting claims for race discrimination and

retaliation in violation of Title VII of the Civil Rights Act of 1964. In particular, Richie asserts

that she was subject to discrimination and retaliation when she was reassigned from her position

as the GS-14 Executive Conservation Correspondence Team Lead to a non-supervisory GS-14

Public Affairs Specialist position.


       No discovery has yet taken place. Defendant has filed a motion to dismiss or, in the

alternative, for summary judgment [Docket Entry 8]. Richie, in turn, has filed a Rule 56(d)

motion for discovery before summary judgment [Docket Entry 10]. See Fed. R. Civ. P. 56(d).

Defendant submitted several declarations, including from four management officials at USDA,

which criticize Richie’s work product, assert that Richie herself requested a new position, and

indicate that several white employees were also reassigned from supervisory to non-supervisory

positions at the same time as Richie. See Def.’s Statement of Material Facts [Docket Entry 8]

¶¶ 3-5, 10-11, 12 (Mar. 5, 2012). Richie submitted a declaration describing her positive


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performance ratings, stating that her performance was not criticized or cited as a reason for her

reassignment, disputing that she requested a new position, and otherwise challenging defendant’s

evidence. Richie Decl. [Docket Entry 10-3] ¶¶ 1-5 (Apr. 2, 2012).


                                       STANDARD OF REVIEW

       To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain “‘a short and

plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47

(1957)); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). Although “detailed

factual allegations” are not necessary, to provide the “grounds” of “entitle[ment] to relief,”

plaintiffs must furnish “more than labels and conclusions” or “a formulaic recitation of the

elements of a cause of action.” Twombly, 550 U.S. at 555-56 (internal quotation marks omitted).

“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, 129 S. Ct. 1937,

1949 (2009) (quoting Twombly, 550 U.S. at 570); accord Atherton v. D.C. Office of the Mayor,

567 F.3d 672, 681 (D.C. Cir. 2009).

       “[I]n passing on a motion to dismiss . . . the allegations of the complaint should be

construed favorably to the pleader.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also

Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164

(1993). Therefore, the factual allegations must be presumed true, and plaintiffs must be given

every favorable inference that may be drawn from the allegations of fact. See Scheuer, 416 U.S.

at 236; Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). However, the

Court need not accept as true “a legal conclusion couched as a factual allegation,” nor inferences


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that are unsupported by the facts set out in the complaint. Trudeau v. FTC, 456 F.3d 178, 193

(D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).

        Summary judgment, in turn, is appropriate when the pleadings and the evidence

demonstrate 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). The party seeking summary judgment bears

the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support

its motion by identifying those portions of “the record, including depositions, documents,

electronically stored information, affidavits or declarations, stipulations (including those made

for purposes of motion only), admissions, interrogatory answers, or other materials,” which it

believes demonstrate the absence of a genuine issue of material fact. Fed. R. Civ. P. 56(c)(1); see

also Celotex, 477 U.S. at 323.

        In determining whether there exists a genuine dispute of material fact sufficient to

preclude summary judgment, the Court must regard the non-movant’s statements as true and

accept all evidence and make all inferences in the non-movant’s favor. See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than

the “mere existence of a scintilla of evidence” in support of its position. Id. at 252. Moreover,

“[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may

be granted.” Id. at 249-50 (citations omitted). Summary judgment, then, is appropriate if the non-

movant fails to offer “evidence on which the jury could reasonably find for the [non-movant].”

Id. at 252.

                                           ANALYSIS




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       Turning first to defendant’s motion to dismiss, the Court will deny the motion. Defendant

argues that Richie fails to state a claim because she has not established a prima facie case of

unlawful discrimination or retaliation. But “under a notice pleading system, it is not appropriate

to require a plaintiff to plead facts establishing a prima facie case.” Swierkiewicz v. Sorema N.

A., 534 U.S. 506, 511 (2002); see also Twombly, 550 U.S. at 547 (rejecting the claim that the

opinion’s “analysis runs counter to Swierkiewicz . . . , which held that ‘a complaint in an

employment discrimination lawsuit [need] not contain specific facts establishing a prima facie

case of discrimination’” (alteration omitted)). Defendant never challenges this principle. Indeed,

while arguing that Richie failed to state a claim, defendant cites almost exclusively summary

judgment-stage cases and concludes that plaintiff has “failed to put forward sufficient evidence

for a reasonable jury to find” for her, and that her claim accordingly fails “as a matter of law,”

Def.’s Mot. to Dismiss or for Summ. J. [Docket Entry 8] at 14 (Mar. 5, 2012) (“Def.’s Mot.”).

Accordingly, all that remains of defendant’s argument is the motion for summary judgment. 1


       Defendant’s summary judgment argument, however, comes too early. “[S]ummary

judgment is premature unless all parties have ‘had a full opportunity to conduct discovery.’”

1
  Defendant never argues that Richie’s complaint has alleged insufficient factual matter. The
complaint offers no facts to support the retaliation claim—it fails to allege, for instance, that a
protected activity took place that could form the basis for the retaliation claim. Compare
Swierkiewicz, 534 U.S. at 511 (“[Petitioner’s] complaint detailed the events leading to his
termination, provided relevant dates, and included the ages and nationalities of at least some of
the relevant persons involved with his termination. These allegations give respondent fair notice
of what petitioner’s claims are and the grounds upon which they rest.”). Defendant does not
object to this omission and himself offers the protected activity omitted from the complaint. See
Def’s Mot. 14-15 (“Plaintiff’s alleged protected activity – filing an EEO charge in 2006 –
occurred four (4) years prior to the 2010 realignment under an entirely different supervisory
chain.”). Accordingly, this Court has no occasion to consider whether the complaint should be
dismissed on this ground or whether the D.C. Circuit’s holding that a Title VII complaint need
only assert that the plaintiff suffered an adverse employment action due to discrimination or
retaliation, see Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1115 (D.C. Cir. 2000), survives
Twombly and Iqbal. In any case, the complaint could be easily amended to correct the omission
because the parties’ filings make clear that Richie could make the requisite factual allegations.
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Convertino v. DOJ, 684 F.3d 93, 99 (D.C. Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 257 (1986)); see also Americable Int’l, Inc. v. Dep’t of Navy, 129 F.3d 1271, 1274

(D.C. Cir. 1997) (“[S]ummary judgment ordinarily is proper only after the plaintiff has been

given adequate time for discovery.” (internal quotation marks omitted)). Accordingly, “[a] Rule

56[(d)] motion requesting time for additional discovery should be granted almost as a matter of

course unless the non-moving party has not diligently pursued discovery of the evidence.”

Convertino, 684 F.3d at 99 (internal quotation marks omitted). Here, the parties have had no

opportunity, let alone a full opportunity, to conduct discovery.


       To obtain time for discovery under Rule 56(d), a plaintiff must submit an “affidavit or

declaration that, for specified reasons, [he] cannot present facts essential to justify [his]

opposition.” Fed. R. Civ. P. 56(d). The declaration must “outline the particular facts he intends to

discover and describe why those facts are necessary to the litigation,” explain why he could not

produce those facts, and “show the information is in fact discoverable.” Convertino, 684 F.3d at

99-100. The declaration Richie’s attorney submitted, see Renaud Decl. [Docket Entry 16] (Nov.

19, 2012), 2 satisfies the Rule 56(d) requirements for the discrimination claim and—when read

generously and supplemented by Richie’s motion—for the retaliation claim.


       The declaration lists specific facts Richie intends to discover that she hopes will undercut

defendant’s declarations, and it offers concrete reasons “to question the veracity” of these

declarations. See Dunning v. Quander, 508 F.3d 8, 10 (D.C. Cir. 2007) (per curiam) (internal

quotation marks omitted); see also Strang v. U.S. Arms Control & Disarmament Agency, 864

F.2d 859, 861 (D.C. Cir. 1989) (upholding denial of a Rule 56(d) motion where plaintiff offered

2
 Because no such declaration was attached to the initial motion, the Court ordered Richie to
submit a declaration to comply with the Federal Rules of Civil Procedure. See November 7, 2012
Order.
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no reason to question veracity of defendant’s affidavits and so plaintiff’s “plea [wa]s too vague

to require the district court to defer or deny dispositive action”). For instance, Richie seeks to

depose Jacqueline Fernette who, in a declaration, criticizes Richie’s work. In her competing

declaration, Richie states that Fernette was complimentary and had never expressed concerns

about Richie’s performance, and that Richie has received consistently positive performance

evaluations. See Renaud Decl. ¶ 6; see also Richie Decl. ¶¶ 1-2. This offers some reason to

question Fernette’s declaration, hence indicating that deposing Fernette might produce evidence

supporting Richie’s argument that defendant’s performance-based explanation is pretextual,

while the true reason is discriminatory. Similarly, two of defendant’s declarants stated that

Richie told them she wanted a new job, a statement that Richie contends she never made. See

Renaud Decl. ¶ 7; see also Richie Decl. ¶ 3. Having offered this reason to question the

declarants’ veracity, Richie seeks to depose them to undercut their statements and establish that

at least one of them is either intentionally testifying falsely or misrepresenting statements

because of Richie’s race. See Renaud Decl. ¶ 7; see also Chappell-Johnson v. Powell, 440 F.3d

484, 488-89 (D.C. Cir. 2006) (“discovery may even uncover direct evidence of discrimination”

in a Title VII case). Richie also seeks to determine, via discovery, the particular duties before

and after reassignment of the white coworkers defendant contends were treated exactly the same

as she was. See Renaud Decl. ¶ 8. All this demonstrates facts that she intends to discover and

which she might use defeat summary judgment as to her discrimination claim.


       Richie’s counsel’s declaration is, however, entirely silent as to retaliation. While alleging

that evidence might reveal a “discriminatory animus” or misrepresentations due to Richie’s

“race,” Renaud Decl. ¶ 7, the declaration says nothing at all about retaliation. Nonetheless,

cognizant that “district courts should construe motions that invoke [Rule 56(d)] generously,


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holding parties to the rule’s spirit rather than its letter,” Convertino, 684 F.3d at 99 (internal

quotation marks omitted), the Court determines that discovery is also proper on the retaliation

claim. First, Richie has offered reasons that discovery will reveal her performance was strong

and that defendant’s invocation of Richie’s performance is pretext, which in turn could be a

cover for retaliation just as it could for discrimination. Indeed, Richie argues that “[b]ased on the

witnesses’ false statements about Ms. Richie’s performance and her ‘request’ for a transfer,

Plaintiff believes that their depositions will reveal evidence of pretext and retaliatory motive.”

See Pl.’s Rule 56(d) Mot. [Docket Entry 10], at 4 (Apr. 2, 2012) (“Pl.’s Mot.”). While she should

have included this theory in her Rule 56(d) declaration, this technical error does not doom the

motion given the requisite “generous[]” reading under Convertino, 684 F.3d at 99 (internal

quotation marks omitted). Similarly, by allowing Richie to explore the purported inconsistency

as to whether Richie asked for a new assignment, depositions might reveal that the reasons for

the declarants’ purported misrepresentations are retaliatory just as they might reveal that they are

discriminatory. Pl.’s Mot. 2 (arguing that she needs discovery “to support her theory that the

witnesses’ false contentions are motivated by discrimination or retaliation”). 3 Exploring these

inconsistencies and purported cover-ups might unearth direct evidence of a connection between

Richie’s protected activity and her reassignment. See Chappell-Johnson, 440 F.3d at 488-89. In

other words, because the parties agree that Richie had engaged in protected activity and because

Richie has given some reason to question defendant’s account of this particular reassignment,

Richie has raised the possibility that discovery could reveal direct evidence of retaliation.


       In so holding, however, the Court notes that the retaliation claim is precipitously close to

one that should be resolved against a plaintiff before discovery. The key theories do not, as

3
 Again, Richie makes this argument in her motion only, rather than in the Rule 56(d)
declaration.
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required, appear in Richie’s counsel’s declaration. And the possibility that questioning the

declarants about the purportedly false declarations will reveal direct evidence sufficient to tie

Richie’s four-year-old complaint against a different set of officials to the reassignment is

extremely speculative. Richie’s counsel’s declaration offers no facts to establish a connection

between the individuals Richie seeks to depose and the protected activity she had undertaken.

But the Court is cognizant of the generous standard that applies, of a plaintiff’s entitlement to

discovery “almost as a matter of course,” Convertino, 684 F.3d at 99 (internal quotation marks

omitted), for any claim that survives a motion to dismiss, and of the fact that—because discovery

about retaliation will overlap very closely with discovery about discrimination—allowing

discovery to proceed as to retaliation imposes little additional burden on the defendant. Hence,

the Court concludes that discovery before summary judgment is appropriate for the retaliation

claim.


         Besides outlining particular facts she intends to discover, Richie has sufficiently

explained why she could not produce these facts and has shown that the information is in fact

discoverable. See id. at 99-100. Although USDA provided some information at the

administrative level, Richie could not produce the specific evidence she seeks because she has

had no opportunity to depose the relevant individuals or obtain additional documents in the

agency’s possession. Far from lack of diligence or sloth, the wholesale absence of the

opportunity for discovery is hence responsible. Compare Berkeley v. Home Ins. Co., 68 F.3d

1409, 1414 (D.C. Cir. 1995) (“Notwithstanding the usual generous approach toward granting

Rule 56[(d)] motions, the rule is not properly invoked to relieve counsel’s lack of diligence.”).

And defendant never contends, nor could he, that the information is not discoverable. In short,

Richie offers sufficient reasons that testing defendant’s declarations might prove fruitful and


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explains why discovery is necessary to develop her case. Richie is entitled to discovery to

attempt to unearth evidence to support her claims.


                                        CONCLUSION


       For the reasons discussed above, [10] plaintiff’s Rule 56(d) motion is GRANTED and

[8] defendant’s motion to dismiss or, in the alternative, for summary judgment is DENIED.

Defendant shall file an answer by not later than December 19, 2012.


       SO ORDERED.



                                                          /s/

                                                    JOHN D. BATES
                                               United States District Judge


Dated: December 5, 2012




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