                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


PAMELA WHITE,

                       Plaintiff,
               v.
                                                      Civil Action No. 11-1763 (BJR)
THOMAS J. VILSACK,
                                                      MEMORANDUM OPINION
SECRETARY,
DEPARTMENT OF AGRICULTURE

                       Defendant.



         DENYING DEFENDANT’S MOTION TO DISMISS; DENYING WITHOUT PREJUDICE
                   DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

                                        I. INTRODUCTION

       This matter is before the court on [Dkt. # 10] the motion to dismiss and alternative

motion for summary judgment filed by Defendant Food Safety and Inspection Service (“FSIS”)

of the United States Department of Agriculture. Plaintiff, an African American, alleges that her

employer, FSIS, discriminated against her on the basis of her race in violation of Title VII of the

Civil Rights Act of 1964 (“Title VII”), see 42 U.S.C. § 2000e, et. seq. Plaintiff claims that the

Secretary discriminated against her on the basis of her race by failing to (1) detail 1 her to a GS-9

level position 2 (“failure to detail claim”) (2) promote her to the Administrative Officer position

(“failure to promote claim”). See generally Compl. Defendant Thomas Vilsack, Secretary of the

Department of Agriculture (“the Secretary”), moves to dismiss both of Plaintiff’s claims under

Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, for summary judgment as to


1
       A detail is a temporary assignment to a different position for a specified period of time. See Dep’t
       of Def., Army-Air Force Exch. Serv. v. Fed. Labor Relations Auth., 659 F. 2d 1140, 1165 (D.C.
       Cir. 1981).
2
       GS is the General Schedule pay scale for federal employees. See Gilbert v. Napolitano, 670 F.3d
       258, 260 (D.C. Cir. 2012). The pay increases as the GS level increases; thus, for instance, a GS-
       11 position is a higher-paying position than a GS-9.
Plaintiff’s “failure to promote” claim. Upon review of the motion, the opposition thereto, and

the record in this case, the court concludes that the Secretary’s motion to dismiss must be denied

as to the Plaintiff’s failure to detail claim, and the Secretary’s motion for summary judgment

must be denied without prejudice as to the Plaintiff’s failure to promote claim.



                                        II. BACKGROUND

       Plaintiff was employed as a GS-7 Management Assistant at the Resource Management

and Planning Staff Division of FSIS. Compl. ¶ 4. In 2005, a GS-11 Administrative Officer

position became available in Plaintiff’s office. Id. ¶7. From August to October 2005, FSIS

detailed Plaintiff into the Administrative Officer position but compensated her at the GS-9 level,

a pay grade less than GS-11. Id.

       After her detail ended, Plaintiff returned to her position as a GS-7 Management Assistant

and continued to perform some Administrative Officer duties while the Administrative Officer

position remained vacant. Id. ¶ 7, 9. Given her additional duties, she requested that her

supervisor, Robert Cooke, provide her with another GS-9 level detail position or other

opportunities to advance her career. Id. ¶ 12. She claims that, although there were positions

available for career advancement in two other branches in FSIS, her supervisor took no action to

place her in the positions. Id. ¶ 13. Plaintiff alleges that she lost opportunities for career

advancement, training and future compensation as a result of this inaction. Id ¶ 5, 12.

       Throughout this period, Plaintiff also asked to be promoted to the vacant Administrative

Officer position or at least be allowed to compete for it. Id. ¶ 6. According to Plaintiff, in

September 2009, Gaye Gerard, a Caucasian woman compensated at the GS-12 level, assumed

the Administrative Officer post in Plaintiff’s office, a position that Plaintiff says was never

advertised. Id. ¶¶ 6, 16.


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       In January 2010, Plaintiff filed a formal Equal Employment Opportunity (“EEO”)

complaint, and the Equal Employment Opportunity Commission (“EEOC” or “the

Commission”) issued a Final Agency Decision the following year denying her claims. Id. ¶ 20.

Plaintiff now alleges disparate treatment on the basis of race in violation of Title VII. More

specifically, Plaintiff claims that the Secretary discriminated against her on the basis of her race

by failing to detail her to a GS-9 level position (“failure to detail claim”) and failing to promote

her to the Administrative Officer position (“failure to promote claim”). See generally Compl.

The Secretary moves to dismiss the failure to detail claim, asserting that Plaintiff failed to

exhaust administrative remedies, or, in the alternative, failed to allege an adverse employment

action. The Secretary also moves to dismiss or, in the alternative, moves for summary judgment

as to the failure to promote claim. With the motion ripe for consideration, the court turns to the

applicable legal standards and the parties’ arguments.

                                          III. ANALYSIS

        A. The Court Denies the Secretary’s Motion to Dismiss the Failure to Detail

                     1. Legal Standard - Rule 12(b)(6) Motion to Dismiss

       Under Federal Rule of Civil Procedure 12(b)(6), a defendant may file a motion to dismiss

to test “the sufficiency of the allegations within the four corners of the complaint after taking

those allegations as true.” In re Interbank Fund Corp. Sec. Litig., 668 F. Supp. 44, 47-48

(D.D.C. 2009) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)); see also FED. R. CIV. P.

12(b)(6). Ambiguities must be resolved in favor of the plaintiff, giving her the benefit of every

reasonable inference drawn from the well-pleaded facts and allegations in the complaint. See In

re Interbank Fund Corp. Sec. Litig., 668 F. Supp. at 47-48.

       To survive a Rule 12(b)(6) motion, the complaint must plead sufficient facts that, taken

as true, provide “plausible grounds” that discovery will reveal evidence to support the


                                                  3
allegations. Twombly, 550 U.S. at 544. A claim has facial plausibility when Plaintiff pleads

factual content that allows the court to draw the reasonable inference that Defendant is liable for

the alleged misconduct. Ashroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at

570)). Moreover, “[a] pleading that offers ‘labels and conclusions’ or a formulaic recitation of

the elements of a cause of action will not do. Nor does the complaint suffice if it tenders ‘naked

assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (citation omitted).

                     2. Plaintiff Exhausted Her Administrative Remedies

       The Secretary labels Plaintiff’s failure to detail claim as a failure to promote to a GS-9

claim, and then goes on to argue that Plaintiff did not include such a failure to promote to a GS-9

claim in her EEO complaint. Def.’s Mot. at 12. Therefore, the Secretary concludes, Plaintiff’s

complaint should be dismissed for failure to exhaust administrative remedies. Id. Plaintiff

counters that her failure to detail claim was included in her administrative complaint. Pl’s Opp’n

at 16. Plaintiff’s argument is well taken.

       A plaintiff must exhaust her administrative remedies with the EEOC before filing a Title

VII claim in federal court. Ahuja v. Detica Inc., No. 09-0224, 2012 WL 1268301, at *5 (D.D.C.

Apr. 16, 2012) (citing Lewis v. City of Chicago, Ill., 130 S. Ct. 2191, 2196-97 (2010)); 42 U.S.C.

§ 2000e-5(f)(1). This requirement “serves the important purposes of giving the charged party

notice of the claim and ‘narrow[ing] the issues for prompt adjudication and decision.’” Park v.

Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995) (citing Laffey v. Nw. Airlines, Inc., 567 F.2d

429, 472 (D.C.Cir. 1976)). A court “has authority over . . . claims like or reasonably related to

the allegations of the [EEOC] charge and growing out of such allegations.” Hudson v.

Children’s Nat’l Med. Ctr., 645 F. Supp. 2d 1, 3 (D.D.C. 2009) (citing Park, 71 F.3d at 907).

       In describing the claims made by Plaintiff in her administrative complaint, the EEOC’s

Final Agency Decision states that Plaintiff “asked [her] supervisor if [her] position[] could be


                                                 4
upgraded to [a] GS-9[]” or that she be given “the opportunity to detail to another branch in a GS-

9 position so she could eventually qualify for the GS-11 [Administrative Officer] position.”

Def.’s Ex. 5 at 2, 4. The Commission found that Plaintiff had made “verbal requests to be placed

on detail.” Id. at 7. Plaintiff alleges not only that she lost potential career opportunities, but also

that she lost the potential compensation that she would have earned in a GS-9 detail position.

See generally Compl.

       Although Plaintiff did not explicitly mention a potential increase in compensation in her

administrative complaint, the denial of a detail from a GS-7 to a GS-9 position necessarily

signifies that Plaintiff was denied a salary increase. As such, Plaintiff’s failure to detail claim is

“reasonably related” to, and “grow[s] out of” her EEOC allegations. Hudson, 645 F. Supp. 2d at

3; see also, Wiley v. Glassman, 511 F.3d 151 (D.C. Cir. 2007) (finding that the reduction in

airtime of a radio broadcaster could have reasonably been expected to grow out of administrative

complaints that Plaintiff was denied career advancement and promotional opportunities). The

court therefore concludes that Plaintiff has exhausted the administrative remedies available for

her failure to detail claim and that the Secretary’s motion to dismiss her claim on this basis must

be denied.

  2. Plaintiff Has Stated an Adverse Employment Action for Her Failure to Detail Claim

       The Secretary argues that the failure to detail claim should be dismissed because

Plaintiff’s allegations that “unspecified detail assignment . . . resulted in a ‘loss of compensation’

are merely speculative and thus do not constitute adverse actions.” Def.’s Mot. at 8. Plaintiff

responds that the denial of a detail position deprived her of higher pay, a tangible harm that




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elevates the Secretary’s failure to detail the Plaintiff to the level of an adverse employment

action. Pl.’s Opp’n at 12-13. The court agrees with Plaintiff. 3

       Title VII bars discrimination “because of . . . [an] individual’s race, color, religion, sex,

or national origin.” Ponce v. Billington, 2012 U.S. App. LEXIS 10025, at *6 (D.C. Cir. May 18,

2012) (quoting 42 U.S.C. § 2000e-2(a)(1)). A plaintiff can establish liability by “proving that a

protected characteristic was a but-for cause of the adverse employment action.” Id. Typically, a

plaintiff establishes but-for causation using a legal framework set forth in McDonnell Douglas.

411 U.S 792, 801 (1973). The first step of the McDonnell Douglas test requires that Plaintiff

“prove a prima facie case of discrimination.” Id. “[T]o state a prima facie claim of disparate

treatment discrimination, Plaintiff must establish that (1) she is a member of a protected class;

(2) she suffered an adverse employment action; and (3) the unfavorable action gives rise to an

inference of discrimination.” Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999). An adverse

employment action “is a significant change in employment status, such as hiring, firing, failing

to promote, reassignment with significantly different responsibilities, or a decision causing

significant change in benefits.” Douglas v. Donovan, 559 F.3d 549, 551-52 (D.C. Cir. 2009)

(citations omitted).

       Ordinarily, the denial of a detail is not an adverse employment action. See, e.g., Brooken

v. Solis, 616 F. Supp. 2d 81, 91 (D.D.C. 2009) (finding that the denial of a detail opportunity that

would have provided training, experience, and advancement opportunities did not constitute an

adverse employment action); Dorns v. Geithner, 692 F. Supp. 2d 119, 132 (D.D.C. 2010)

(explaining that simply stating that a transfer would have provided opportunities for growth does


3
       Plaintiff also argues that the failure to detail constitutes an adverse employment action because
       she was deprived of the opportunity to receive on-the-job training that would have qualified her
       for a promotion. The court rejects this argument. As elaborated below, allegations that a detail
       would have provided training, experience and advancement opportunities are too speculative to
       constitute an adverse employment action. See Brooken v. Solis, 616 F. Supp. 2d 81, 91 (D.D.C.
       2009); Dorns v. Geithner, 692 F. Supp. 2d 119, 132 (D.D.C. 2010).
                                                   6
not establish an adverse action). However, “the denial of a detail may constitute an adverse

employment action if the denial also ‘entailed materially adverse ‘consequences affecting the

terms, conditions, or privileges’ of [plaintiff’s] employment.” Id. (citations omitted). Actions

that have “direct, measurable, and immediate effect[s]” are generally actionable. Douglas, 559

F.3d at 552 (citing Russell v. Principi, 257 F.3d 815, 819 (D.C. Cir. 2001)). Notably, “the denial

of [a p]laintiff’s request for [a] temporary . . . position could be construed as an adverse

employment action if [the p]laintiff’s pay would have increased” as a result of the temporary

placement. Singleton v. Potter, 402 F. Supp. 2d 12, 40 (D.D.C. 2005).

       Here, Plaintiff claims that she would have earned additional compensation had she been

detailed to a GS-9 level position. The Secretary does not dispute that in 2005 Plaintiff received

higher pay when the USDA detailed her into the vacant Administrative Officer position at the

GS-9 level. Compl. ¶ 8. Construing the complaint in the light most favorable to the Plaintiff, the

court infers that, based on her past increase in pay, her claim that she could have obtained a

higher-paying detail is not “merely speculative”, as the Secretary asserts. Moreover, she has

plead with sufficient specificity that “there were open positions available for career advancement

in two other branches,” Compl. ¶ 14, and that she asked her supervisor to provide her “the

opportunity to detail to another branch within the Division in a GS-9 level position.” Id. ¶ 12.

       At this early stage of the case, the court must rely on allegations in the complaint. With

that in mind, the court determines that the denial of a detail position could possibly have affected

Plaintiff’s potential pay, thereby causing a “direct, measurable, and immediate” effect on

Plaintiff’s compensation, a term of her employment. Douglas, 559 F.3d at 552 (citing Russell,

257 F.3d at 819). Therefore, Plaintiff has alleged a materially adverse employment action.

Compare Russell, 257 F.3d at 819 (observing that the loss of potential compensation is tangible,

has direct, measurable effects, and therefore constitutes an adverse employment action), with


                                                  7
Brody, 199 F.3d at 456 (finding that a purely lateral transfer that does not affect pay or benefits

does not rise to the level of a materially adverse employment action). Accordingly, the court

denies the Secretary’s motion to dismiss the failure to detail claim.


C. The Court Denies Without Prejudice the Secretary’s Motion for Summary Judgment as
                        to Plaintiff’s Failure to Promote Claim

                           1. Legal Standard - Summary Judgment

       A motion for summary judgment should be granted only “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). A dispute is “genuine” if “the evidence is such that a reasonable

jury could return a verdict” for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). A fact is “material” if it could reasonably affect the outcome of the case. Id.

       Where the movant does not bear the ultimate burden at trial, it need only satisfy the initial

burden of demonstrating the absence of evidence to support the nonmovant’s case. Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the motion has been properly supported, the

burden shifts to the nonmovant to show that “the evidence is such that a reasonable jury could

return a verdict” in its favor. Anderson, 477 U.S. at 248.

       Finally, not every disputed factual issue is material in light of the substantive law that

governs the case. “Only disputes over facts that might affect the outcome of the suit under the

governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at

248-50 (noting that if the evidence is “merely colorable” or “not significantly probative,”

summary judgment may be granted).

                                  2. Legal Standard - Title VII

       If a defendant in a Title VII matter presents a legitimate, non-discriminatory reason for its

actions, the district court faced with a motion for summary judgment must ask: “Has the


                                                  8
employee produced sufficient evidence for a reasonable jury to find that the employer’s asserted

non-discriminatory reason was not the actual reason and that the employer intentionally

discriminated against the employee on the basis of race, color, religion, sex, or national origin?”

Brady v. Office of the Sergeant at Arms, U.S. House of Representatives, 520 F.3d 490, 494 (D.C.

Cir. 2008). In doing so, the court considers whether discrimination may be inferred from (1)

evidence used by the plaintiff to establish his prima facie case, 4 (2) any evidence the plaintiff

presents to attack the employer’s proffered explanation, and (3) any further evidence of

discrimination that may be available to the plaintiff. Waterhouse v. District of Columbia, 298

F.3d 989, 992-93 (D.C. Cir. 2002) (quoting Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1291 (D.C.

Cir. 1998)).

                               3. Summary Judgment is Premature

       As a preliminary matter, the Secretary has presented material outside of pleadings. 5 The

court will, therefore, treat the motion as one for summary judgment. See Holy Land Found. for

Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir. 2003) (observing that when “matters

outside the pleading are presented to and not excluded by the court, the motion [to dismiss for

failure to state a claim] shall be treated as one for summary judgment and disposed of as

provided in Rule 56”).

       Generally, the court is reluctant to consider a motion for summary judgment prior to

discovery. See Convertino v. Dep’t of Justice, 684 F.3d 93, 99 (D.C. Cir. 2012) (stating that

4
       To establish a prima facie case of race discrimination under Title VII, the plaintiff must show that
       “(1) [he] is a member of a protected class; (2) [he] suffered an adverse employment action; and
       (3) the unfavorable action gives rise to an inference of discrimination.” Brown v. Brody, 199 F.3d
       446, 452 (D.C. Cir. 1999); Stewart v. Ashcroft, 352 F.3d 422, 428 (D.C. Cir. 2003); Carroll v.
       England, 321 F. Supp. 2d 58, 68 (D.D.C. 2004).
5
       The material outside the pleadings that has been considered by the court includes the transfer
       documentation of the employee who had previously worked as the Administrative Officer, Def.’s
       Ex. 15, the affidavit of Plaintiff’s supervisor, Def.’s Ex. 6, the FSIS organizational chart, Def.’s
       Ex. 8, and the affidavit of a FSIS Human Resources employee, Def.’s Ex. 9. Def.’s Mot. at 14–
       15.
                                                    9
“summary judgment is premature unless all parties have had a full opportunity to conduct

discovery”) (internal quotations & citations omitted); Americable Int’l v. Department of Navy,

129 F.3d 1271, 1274 (D.C. Cir. 1997) (stating that “summary judgment ordinarily ‘is proper only

after the plaintiff has been given adequate time for discovery’”). After reviewing the parties’

filings, the court concludes that the current record is not sufficiently developed to allow a

determination as to whether a genuine dispute of material fact exists. The court believes a period

of discovery is appropriate to allow Plaintiff the opportunity collect evidence to support her

contentions. Accordingly, the court declines, in its discretion, to entertain the Secretary’s motion

for summary judgment before allowing a period for discovery. See, e.g., Gordon v. Napolitano,

786 F. Supp. 2d 82, 86 (D.D.C. 2011) (reasoning that although the plaintiff’s claims was unlikely

to survive a future summary judgment motion, “to dismiss them or convert this into a motion for

summary judgment is premature at this time because [the p]laintiff has not had the benefit of any

discovery to bolster her claims”); McWay v. LaHood, 269 F.R.D. 35, 37-38 (D.D.C. 2010)

(“[T]he D.C. Circuit has directed that because it is difficult for a plaintiff to establish proof of

discrimination, the court should view [pre-discovery] summary-judgment motions ... with special

caution."); Gray v. Universal Serv. Admin. Co., 581 F. Supp. 2d 47, 56 (D.D.C. 2008) (stating

that summary judgment “must be approached with special caution” in discrimination cases and

allowing discovery before entertaining a summary judgment motion). Once discovery has

concluded, the Secretary may renew his motion for summary judgment.




                                                  10
                                      IV. CONCLUSION

       For the foregoing reasons, the court concludes that [Dkt. #10] the Secretary’s motion to

dismiss as to the failure to detail claim is denied, and the motion for summary judgment on the

failure to promote claim, is denied without prejudice. An Order consistent with this

Memorandum Opinion is separately issued this 29th day of August, 2012.




                                                    BARBARA J. ROTHSTEIN
                                                    UNITED STATES DISTRICT JUDGE




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