                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


                                                )
SAMUEL ORTIZ-DIAZ                               )
                                                )
               Plaintiff,                       )
                                                )
       v.                                       )   Civil No. 12-726 (RCL)
                                                )
UNITED STATES DEPARTMENT                        )
OF HOUSING AND URBAN                            )
DEVELOPMENT, OFFICE OF THE                      )
INSPECTOR GENERAL                               )
                                                )
              Defendant.                        )
                                                )


                                 MEMORANDUM OPINION

       Plaintiff Samuel Ortiz-Diaz brings this Title VII action against his former employer––

defendant U.S. Department of Housing and Urban Development, Office of the Inspector General

(“HUD-OIG”)––alleging retaliation and discrimination on the bases of race and national origin

when HUD-OIG denied his requests to transfer and excluded him from meetings. HUD-OIG

moves to dismiss for failure to state a claim or, in the alternative, summary judgment. Upon

consideration of this motion [5], Ortiz-Diaz’s opposition [6] thereto, and HUD-OIG’s reply [8],

the Court will GRANT the motion with respect to the retaliation claim and DENY the motion

with respect to the discrimination claims.

I.     BACKGROUND

       Ortiz-Diaz worked as a criminal investigator in HUD-OIG headquarters in Washington,

DC, from December 15, 2009, to January 1, 2011. While in this position, he testifies to having

been subjected to a pattern of discriminatory treatment because he is Hispanic and was born in
Puerto Rico. In 2010 he began seeking transfer to HUD-OIG field offices in the northeast in an

alleged attempt to leave the discriminatory environment and find better opportunities for career

advancement. His attempts were never successful, however, and Ortiz-Diaz grew very angry

over HUD-OIG’s denials.

       Subsequently, in September 2010, Ortiz-Diaz claims that Assistant Inspector General for

Investigations John McCarty, ordered that Ortiz-Diaz no longer attend joint meetings with the

Department of Justice (“DOJ”) that he had previously been assigned to attend. Ortiz-Diaz

alleges that his exclusion from these meetings limited his training and opportunities for career

advancement by preventing him from interacting with employees of other agencies and generally

casting his reputation in a negative light.

       Also, in October 2010, Ortiz-Diaz claims that he had a telephone conversation with

Special Agent-in-Charge Rene Febles who informed him that Region 2 (New York) needed

another Special Agent at the same pay grade as Ortiz-Diaz’s current position. Ortiz-Diaz then

requested that he be transferred to HUD-OIG’s office in Albany, New York, to fill this position.

While there was no investigative division in the Albany office, Ortiz-Diaz claims that other

HUD-OIG offices commonly allow employees in various divisions to share office space even if

their divisions do not have an official presence in those offices. Ortiz-Diaz’s request was passed

up the chain of command to McCarty who was the ultimate decision maker. Despite Febles’

alleged support of the transfer, McCarty denied the request on October 12, 2010. That same day,

Ortiz-Diaz allegedly spoke with McCarty and verbally requested another transfer to Hartford,

CT, in response to an announcement offering a position also at Ortiz-Diaz’s pay grade.

According to Ortiz-Diaz, McCarty verbally denied the request.




                                                 2
       On November 2, 2010, Ortiz-Diaz filed a discrimination complaint with the Equal

Employment Opportunity Commission (“EEOC”), stating that the above events constituted

discrimination based on his “Hispanic” race and “Puerto Rican” national origin. In its Notice of

Acceptance, the EEOC stated that under its policy, “Hispanic” was defined as a national origin,

not a race, and that it would therefore only investigate for discrimination based on national

origin. Ortiz-Diaz’s counsel responded to this decision by objecting to the characterization of

“Hispanic” as only a national origin, and not a race, but stated, “given the method of proof

required to make a claim pursuant to Title VII, we see the distinction as insignificant.”

       After 180 days had passed from the filing of the complaint without a final decision from

EEOC, Ortiz-Diaz filed this action in federal court pursuant to 42 U.S.C. § 2000e-16(c). In his

complaint before this court, he alleges an additional count of retaliation not previously specified

in his EEOC complaint, claiming that HUD-OIG’s decision to exclude him from meetings was in

response to his belief that he had been discriminated against. HUD-OIG now moves to dismiss

for failure to state a claim or, in the alternative, for summary judgment. Ortiz-Diaz opposes this

motion and seeks time for discovery, given that none has been conducted since he filed his civil

action before this court.

II.    ANALYSIS

       Title VII of the Civil Rights Act of 1964 protects employees from discrimination on the

basis of certain protected statuses, such as race and national origin, as well as retaliation in

response to employee conduct that opposes prohibited discrimination. University of Texas

Southwestern Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2525 (2013). Status-based discrimination

claims arise under 42 U.S.C. § 2000e-2(a)(1): “It shall be an unlawful employment practice for

an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to



                                                  3
discriminate against any individual with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual’s race . . . or national origin.” (emphasis

added). To succeed under this section, employees must prove that they suffered an adverse

employment action that was at least partially motivated by the employer’s animus to their

protected status. See 42 U.S.C. 2000e-2(m) (holding employer’s liable when these statuses were

a “motivating factor for any employment practice, even though other factors also motivated the

practice”).

       Claims of retaliation are derived from 42 U.S.C. § 2000(e)-3, which provides in relevant

part, “[i]t shall be an unlawful employment practice for an employer to discriminate against any

of his employees . . . because [they] have opposed any practice made an unlawful employment

practice by this subchapter.” To succeed in this claim, employees must establish that (1) they

engaged in actions protected under this statute, that (2) these actions were a cause-in-fact of their

exclusion from the meetings, and that (3) the employer’s retaliation constituted an adverse

employment action. Nassar, 133 S.Ct. at 2534. Our review of both discrimination and

retaliation claims is de novo. Chandler v. Roudebush, 425 U.S. 840, 841 (1976).

       A.      Dismissal

       1. Failure to State a Claim (Rule 12(b)(6))

       The Federal Rules of Civil Procedure set a relatively low bar for complaints: they must

contain a “short and plain statement of the claim showing that the pleader is entitled to relief.”

Fed.R.Civ.P.8(a)(2). Given this liberal standard, dismissal under Rule 12(b)(6) is only

appropriate when a complaint does not allege enough facially plausible facts to permit the court

to reasonably infer that the defendant is liable for the alleged violation. Ashcroft v. Iqbal, 556

U.S. 662, 678–79; Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). For example,



                                                  4
complaints that merely state unsupported legal conclusions or that formulaically recite the

elements of a cause of action without alleging sufficient facts to back up the action are properly

dismissed under Rule 12(b)(6). E.g., Iqbal 556 U.S. at 678–79. When deciding whether a

complaint satisfies this standard, courts are to construe the complaint, and draw all reasonable

inferences from it, in a light most favorable to the plaintiff, and to accept as true all of the

complaint’s plausible factual allegations. 5B CHARLES ALAN WRIGHT & ARTHUR R. MILLER,

FEDERAL PRACTICE AND PROCEDURE § 1357 (3d ed. 2008).

        With specific reference to employment discrimination cases like this one, the Supreme

Court in Twombly emphasized that courts should not require complaints to contain more facts

than is necessary to “nudge[] [a] claim across the line from conceivable to plausible.” Twombly

550 U.S. at 569–70. Thus, they need not allege “specific facts beyond those necessary to state

[the] claim and the grounds showing entitlement to relief.” Id. (reaffirming its earlier holding in

Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) that complaints alleging employment

discrimination need not contain facts supporting each element of a cause of action in detail).

“[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 (emphasis added)). Moreover, our

circuit has, post-Twombly, been even more emphatic––“[b]ecause racial discrimination in

employment is a claim upon which relief can be granted, . . . ‘I was turned down for a job

because of my race’ is all a complaint has to state to survive a motion to dismiss under

Fed.R.Civ.P. 12(b)(6).” Potts v. Howard Univ. Hosp., 258 Fed.Appx. 346, 347 (D.C. Cir. 2007)

(alteration in original) (quoting Sparrow v. United Air Lines, Inc., 216 F.3d 111, 115 (D.C. Cir.

2000) (internal quotation marks omitted)); see also, Bryant v. Pepco, 730 F.Supp.2d 25, 29

(D.D.C. 2010) (observing this position).



                                                   5
         In support of its motion to dismiss for failure to state a claim, HUD-OIG provides the

court with nothing more than a conclusory allegation that “[t]he [p]laintiff is unable to provide

more than labels and conclusions, or assert a formulaic recitation of the elements of a cause of

action.” Def.’s Reply [8] at 2. After reviewing the complaint on its own, however, the court

finds it sufficient to withstand dismissal under 12(b)(6).

         With respect to the status-based claims, the complaint makes specific allegations

regarding Ortiz-Diaz’s race and national origin (Am. Compl. ¶ 6), denied transfer requests

adversely affecting his career opportunities 1 (Id. at ¶¶ 7–9, 16–18), and instances in which other,

similarly situated employees outside his protected class had their transfer requests treated more

favorably. (Id. at ¶¶ 10–11, 16–17). Such allegations easily satisfy the standard for 12(b)(6).

         The complaint is less specific with regard to the retaliation claim, yet still likely complies

with the permissive standard articulated by the Supreme Court and the D.C. Circuit. The

complaint contains sufficient facts for the court to infer that Ortiz-Diaz suffered an adverse

employment action when he was his excluded from meetings with DOJ. Am. Compl. ¶ 12.

However, it is less detailed in its explanation of how this exclusion was retaliatory. All it claims

is

         McCarty was aware that [p]laintiff believed the transfer or reassignment denials
         were discriminatory. Mr. McCarty was also aware that [p]laintiff was seeking a
         new position because he believed Mr. McCarty subjected him to discrimination.
         [p]laintiff discussed his new position with his immediate supervisors, who in turn
         discussed the issues with Mr. McCarty. Am. Compl. ¶ 13.
and,

         Plaintiff’s supervisor and the relevant decision maker were aware that [p]laintiff
         believed he had been discriminated against and that [p]laintiff was engaging in

1
 Even denials of “lateral” transfers, i.e., transfers to positions with no increase in pay and benefits, have in some
cases been an adverse employment action for the purposes of Title VII. E.g., Stewart v. Ashcroft, 352 F.3d 422,
426–27 (D.C. Cir. 2008); see also, Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986) (explaining that
Congress intended Title VII to prohibit all types of discriminatory treatment and not just those that have an
economic or tangible impact).

                                                           6
        protected activity. Because of [p]laintiff’s belief and complaints regarding
        discrimination and his attempt to seek a new position, Mr. McCarty negatively
        altered the terms and conditions of [p]laintiff’s employment by precluding him
        from attendance at meetings which were critical to [p]laintiff’s position. Id. at
        ¶ 20.

Such allegations do not inform the court as to how McCarty became aware of Ortiz-Diaz’s belief

or help it evaluate whether Ortiz-Diaz did anything that might constitute “opposition” for the

purposes of 42 U.S.C. § 2000e-3 2, but that is not the court’s role at this stage. Given the

pleading standard articulated by the Supreme Court and our circuit, the complaint’s simple

assertion that McCarty was aware that Ortiz-Diaz thought he was being discriminated against is

probably sufficient to state a claim. Ultimately, however, this determination is not necessary to

this court’s judgment because Ortiz-Diaz has failed to exhaust administrative remedies with

respect to his retaliation claim as discussed infra p. 10–11.

        2. Exhaustion of Administrative Remedies with Respect to the Racial Discrimination

and Retaliation Claims

        HUD-OIG also contends that Ortiz-Diaz’s claims of racial discrimination and retaliation,

in particular, should be dismissed for failure to exhaust administrative remedies. Before

initiating a Title VII civil action, federal employees are required to exhaust administrative

remedies by filing an administrative complaint with the EEOC. Harris v. Gonzales, 488 F.3d

442, 443 (D.C. Cir. 2007). After the EEOC has had sufficient time to investigate, federal courts

can review those claims “like or reasonably related to the allegations of the charge and growing

out of such allegations.” Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995) (internal

quotation marks omitted). Such claims are limited to those that are either encompassed within


2
 “Opposition” for the purposes of this statute has been read broadly. See e.g., Crawford v. Metropolitan Gov’t of
Nashville & Davidson County, Tennessee, 129 S.Ct. 846, 850 (2009) (considering an employee’s responses to an
employer’s questions about whether she had been discriminated against to be “opposition.”) Thus, even informal
verbal complaints might suffice depending on the context.

                                                         7
the administrative investigation or can reasonably be expected to arise out of the administrative

investigation. 3 Id. Making this inquiry necessarily involves examining the facts alleged in the

EEOC complaint to determine whether the EEOC had notice to investigate the claims first before

they were raised in court. Mangiapane v. Adams, 661 F.2d 1388, 1389 (D.C. Cir. 1981);

Mathirampuzha v. Potter, 548 F.3d 70, 76 (2d Cir. 2008). “It is the substance of the [EEOC

complaint] and not its label that controls.” Deravin v. Kerik, 335 F.3d 195, 201 (2d Cir. 2003).

        Significantly, all of the material facts alleged in the complaint before the court were also

alleged in the EEOC complaint. HUD-OIG argues, however, that because the EEOC excluded

the claim of racial discrimination from its investigation (because it did not consider “Hispanic”

to be a race), Ortiz-Diaz failed to exhaust administrative remedies with respect to that claim. It

also argues that the claim of retaliation should be dismissed because Ortiz-Diaz failed to check

the box marked “reprisal” in his administrative complaint.

        (a) Racial Discrimination

        Ortiz-Diaz’s racial discrimination claim appears sufficiently “like or reasonably related”

to the claim of national origin discrimination to allow it to proceed. Several courts have

recognized that, in some contexts, race and national origin may be so substantially related as to

be indistinguishable. E.g., Saint Francis College v. Al-Khazraji, 481 U.S. 604, 614 (1987)

(Brennan, J. Concurring); Deravin v. Kerik, 335 F.3d 195, 201 (2d Cir. 2003); Sinai v. New

England Tel. and Tel. Co., 3 F.3d 371, 475 (1st Cir. 1993); Bullard v. OMI Georgia, Inc., 640

F.2d 632, 634 (5th Cir. Unit B 1981). Whether “Hispanic” is better classified as a race or




3
 The “reasonably related” doctrine balances two opposing concerns. On the one hand, it recognizes that employees
who fill out EEOC complaints often do so without the assistance of counsel and may not know which legal claims
best match what they experienced. Mathirampuzha v. Potter, 548 F.3d 70, 77 n.6 (2d Cir. 2008). On the other
hand, it ensures that employers are alerted to all charges that may be brought against them. Id.

                                                       8
national origin is unclear. 4 Alonzo v. Chase Manhattan Bank, N.A., 25 F.Supp.2d 455, 460

(S.D.N.Y. 1998) (allowing the claim of racial discrimination when the plaintiff, a Hispanic, only

alleged national origin discrimination on his EEOC complaint).

         The procedural history of this case renders this analysis unnecessary, however. Here,

Ortiz-Diaz considered his race to be “Hispanic” and his national origin to be “Puerto Rican” and

alleged discrimination on both grounds. The EEOC, however, considered both “Hispanic” and

“Puerto Rican” to be national origins, and neither a race, and therefore only investigated for

national origin discrimination. Either way, the EEOC investigated for the very type of

discrimination that Ortiz-Diaz claims was racial discrimination––discrimination on account of

his being Hispanic. Thus, it is not possible for HUD-OIG to assert that the EEOC investigation

was not “like or reasonably related to” Ortiz-Diaz’s claim of racial discrimination. In fact, it was

the exact same investigation. Any distinction between the two is merely a matter of labels, not

of substance. 5



4
  Because of its obligation to review Title VII complaints de novo, the court does not show deference EEOC’s
definitions of these terms.
5
  Even if the EEOC did not investigate discrimination on account of his being Hispanic at all but instead limited its
investigation to national origin discrimination on account of his being Puerto Rican, the court would still be on solid
footing for considering his racial discrimination claim to be “like or reasonably related” to his national origin
discrimination claim. In Dequan Lin v. Salazar, this court acknowledged a tendency to treat claimants, like Ortiz-
Diaz, who are seeking to add racial discrimination claims to their national origin discrimination claims more
favorably than claimants who seek to add national origin discrimination claims to their racial discrimination claims.
Dequan Lin v. Salazar, 891 F.Supp.2d 49, 54–55 (D.D.C. 2012). It found that while allegations of racial
discrimination tend to “not preserve an allegation of national origin discrimination for a Title VII action, the reverse
is not necessarily true.” Id. (comparing Brown v. Georgetown Univ. Hosp. Medstar Health, 828 F.Supp.2d 1, 7
(D.D.C.2011) (national origin claim preserved racial discrimination claim) with Sisay v. Greyhound Lines, Inc., 34
F.Supp.2d 59, 64 (D.D.C.1998) (racial discrimination claim did not preserve a claim of national origin
discrimination). The question in all of these cases is whether the claim of national origin discrimination would
reasonably trigger an administrative investigation into racial discrimination, such that the employer would have had
notice. Dequan Lin, 891 F.Supp.2d. at 55. It seems likely that an investigation into whether Ortiz-Diaz was
discriminated based on his being Puerto Rican would be reasonably related to whether he was discriminated based
on his being Hispanic. See, e.g., Cordero v. Heyman, No. 97cv0435, 1998 WL 730558, at *5 (S.D.N.Y. Oct. 19,
1998) (finding claim of discrimination based on “Hispanic” race to be reasonably related to a claim of
discrimination based on “Puerto Rican” national origin); Dequan Lin, 891 F.Supp.2d at 55 (finding that an
investigation into discrimination on the basis of the plaintiff’s Chinese national origin was reasonably related to his
claim of discrimination on the basis of his Asian race).

                                                           9
        Moreover, this is not a situation where the Title VII complainant neglected to allege

racial discrimination at the administrative level and only now seeks to bring it in. Ortiz-Diaz

filed a claim for racial discrimination and was denied. In Mangiapane, the DC Circuit

emphatically held that Title VII complainants are deemed to have exhausted their administrative

remedies with respect to new allegations that they unsuccessfully attempted to introduce at the

administrative level. Mangiapane v. Adams, 661 F.2d 1388, 1390 (D.C. Cir. 1981). It noted that

agencies, not employees, have the burden of developing the administrative record, and that “the

only exhaustion requirement expressly made by Title VII is the employee’s duty to ‘first

complain to his employing agency.’” Id. That much Ortiz-Diaz has done by having included

racial discrimination on his EEOC complaint. 6

        (b) Retaliation

        However, the claim of retaliation cannot be construed as “like or reasonably related” to

the other claims in the administrative complaint. In the administrative complaint, Ortiz-Diaz

only checked the boxes for “race” and “national origin” but did not check the box for “reprisal.”

Moreover, while he alleged in that complaint that his employer had excluded him from meetings,

he left no indication that the exclusion was in response to his having engaged in a protected

activities.

        Complainants can normally still raise claims even if they failed to check the box

appropriate to those claims on their EEOC complaint as long as they allege facts that support the

claims. See Sanchez v. Standard Brands, 431 F.2d 455, 464 (5th Cir. 1970) (explaining that the



6
  On this point, HUD-OIG notes that Ortiz-Diaz failed to adequately object to the EEOC’s decision to limit his claim
to national origin discrimination. It observes that some courts have held that a failure to object to the EEOC’s
framing of issues effectively waives unrelated claims. E.g., Clayton v. Rumsfeld, 106 Fed.Appx. 268, 271–72 (5th
Cir. 2004); McKeithan v. Boarman, 803 F.Supp.2d 63, 67–79 (D.D.C. 2011). None of these cases are binding on
this court and all are much less relevant. Here, the investigation conducted by the EEOC is much more related to the
claim this plaintiff seeks to include; indeed, it is the exact same.

                                                        10
“selection of which box to check is . . . nothing more than the attachment of a legal conclusion to

the facts alleged” and that a party should not be “cut off merely because he fails to articulate

correctly the legal conclusion emanating from his factual allegations”). However, when nothing

in the facts would reasonably give rise to an investigation related to the claim the complainant

seeks to introduce in court, the claim must be dismissed for failure to exhaust administrative

remedies. Ndondji v. InterPark Inc., 768 F.Supp.2d 263, 279 (D.D.C. 2011) (denying retaliation

claim when complainant only alleged national origin discrimination and did not allege any facts

alleging retaliation); Ponce v. Billington, 652 F.Supp.2d 71, 73–74 (D.D.C. 2009) (same);

Rattigan v. Gonzales, 503 F.Supp.2d 56, 69 (D.D.C. 2007) (same). 7

        Certainly, the facts regarding Ortiz-Diaz’s exclusion from the meetings would reasonably

have prompted an investigation into whether they were in fact true and whether they were

motivated by animus toward his race or national origin, but they could not reasonably be

expected to give rise to an investigation into retaliation when the plaintiff did not allege to have

done or said anything that the employer might have retaliated against. Thus, this claim must be

dismissed.

        B. Summary Judgment

        Summary judgment is reserved only for cases in which “[1] there is no genuine dispute as

to any material fact and [2] the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P.

56(a); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A dispute about a

material fact “is ‘genuine’ . . . if the evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Anderson, 477 U.S. at 248. The moving party bears the burden of


7
  Plaintiffs do not need to exhaust administrative remedies before bringing retaliation claims when the alleged
retaliatory acts occurred in response to the filing of their EEOC complaint. Pyrne v. District of Columbia, 298
F.Supp.2d 7, 12 (D.D.C. 2002). Here, however, the actions that Ortiz-Diaz alleges were retaliatory––his exclusion
from the meetings––occurred prior to the filing of his EEOC complaint.

                                                        11
demonstrating the absence of any genuinely disputed material facts. Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986). Once it satisfies that burden, the moving party is “‘entitled to

judgment as a matter of law’ if the nonmoving party ‘fails to make a showing sufficient to

establish the existence of an element essential to that party’s case, and on which that party will

bear the burden of proof at trial.’” Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. Cir. 2003)

(quoting Celotex, 477 U.S. at 322). In making these determinations, the court must view the

evidence in the light most favorable to the nonmoving party, and draw all reasonable inferences

in his favor. Anderson, 477 U.S. at 250, 55.

       Summary judgment is inappropriate at this time because the plaintiff has not yet had the

benefit of discovery at the federal court level. The defendant argues that the investigation

conducted at the administrative level should be sufficient. District courts are strongly counseled

against resolving Title VII cases based on the administrative record alone, however. E.g., Ikossi

v. Dep’t of Navy, 516 F.3d 1037, 1045 (D.C. Cir. 2008); Hackley v. Roudebush, 520 F.2d 108,

149 (D.C. Cir. 1975). Title VII requires courts to allocate burdens of proof to the parties in

various ways depending on the types of claims raised and the evidence introduced. See e.g.,

Nassar, 133 S.Ct. at 2526 (contrasting the statutorily prescribed burden-shifting framework for

mixed motive discrimination claims with the different standard for retaliation claims); Trans

World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985) (limiting the burden-shifting

framework established in McDonnell Douglas Corp v. Green, 411 U.S. 792 (1973) to cases

where there is only circumstantial evidence of discrimination, not when there is direct evidence

of discrimination); Brady v. Office of Sergeant at Arms, 520 F.3d 490, 493 (D.C. Cir. 2008)

(explaining how, as a practical matter, plaintiffs almost never need to prove a prima facie case as

required by McDonnell Douglas even when they have no direct evidence of discrimination).



                                                 12
Without the benefit of discovery, therefore, it is very difficult for courts to know exactly what

showing plaintiffs will need to make at trial. Swierkiewicz, 534 U.S. at 511–12; Chappell-

Johnson v. Powell, 440 F.3d 484, 488–89 (D.C. Cir. 2005).

       Ortiz-Diaz also asserts that discovery is necessary to further develop the record. Rule

56(d) states:

       When Facts are Unavailable to the Nonmovant. If a nonmovant shows by
       affidavit or declaration that, for specified reasons, it cannot present facts essential
       to justify its opposition, the court may: (1) defer considering the motion or deny
       it; (2) allow time to obtain affidavits or declarations or take discovery; or (3) issue
       any other appropriate order.

Plaintiffs seeking additional discovery have a “burden to state with sufficient particularity to the

district court . . . why discovery [is] necessary.” Iksossi v. Dep’t of Navy, 516 F.3d 1037, 1045

(D.C. Cir. 2008) (internal quotation marks omitted). Ortiz-Diaz satisfies this burden with a

declaration from his attorney explaining that further investigation is needed to determine whether

similarly situated employees outside Ortiz-Diaz’s protected class were treated more favorably,

what role McCarty played in making transfer decisions, and other questions necessary to justify

Ortiz-Diaz’s claims. Pl.’s Opposition, Ex. I. Thus, consistent with its obligation to review Title

VII cases de novo and to not entirely rely on the administrative record, the court will deny

summary judgment with respect to the remaining discrimination claims without prejudice to

renew after the parties have engaged in discovery.

IV.    CONCLUSION

       Based on the foregoing, the court will GRANT defendant HUD-OIG’s motion in part and

DISMISS the retaliation claim.       However, it will DENY the motion with respect to the

discrimination claims without prejudice to a new motion after discovery has been conducted.

Pursuant to Fed.R.Civ.P. 12(b)(4)(A), the defendant has 14 days from this date to serve an



                                                 13
answer to the plaintiff’s complaint. The court also ORDERS discovery pursuant to Fed.R.Civ.P.

56(d) to help resolve Ortiz-Diaz’s surviving claims of racial and national origin discrimination.

Within 21 days of the defendant’s answer, the parties are to confer and develop a proposed

scheduling order in accordance with Fed.R.Civ.P. 16(b) and 26(f) and LCvR 16.3.            In its

scheduling order, the court will order a date for a renewed summary judgment motion to be filed.

       A separate Order consistent with this Memorandum Opinion shall issue this date.

       Signed by Royce C. Lamberth, United States District Judge, on August 16, 2013.




                                               14
