                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

                                              )
EDWARD ALSTON, III,                           )
                                              )
                                              )
              Plaintiff,                      )
                                              )
        v.                                    )       Civil Action No. 14-cv-1888 (TSC)
                                              )
JEH CHARLES JOHNSON, in his official          )
capacity as Secretary of the DHS              )
                                              )
              Defendant.                      )
                                              )

                                  MEMORANDUM OPINION

        Plaintiff Edward Allston III alleges that he was not selected for a promotion because of

his race, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §

2000e, et seq, and the Civil Rights Act of 1991, 42 U.S.C. § 1981a, et seq. Defendant moves to

dismiss the suit under Federal Rule of Civil Procedure 12(b)(6), or, in the alternative, for

summary judgment under Federal Rule of Civil Procedure 56. For the reasons stated herein,

Defendant’s motion is DENIED.

   I.        BACKGROUND

        Plaintiff is an African American male, who began his employment with the United States

Secret Service in February 1998. (Compl. ¶ 14). From August 2009 to August 2012, he worked

as a GS-13 Senior Special Agent, Criminal Investigator, in the Office of Investigations,

Forensics Services Division, Polygraph Operations. (Id. ¶¶ 16, 18). In August 2012, Plaintiff

applied for one of two vacant GS-14 Assistant to the Special Agent in Charge Polygraph

Program Manager positions in his office. (Id. ¶ 24). The vacancy announcement stated that

applicants had to be verified Secret Service polygraph examiners, and that applicants who had

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operations experience within the polygraph program, or a comparable field, were preferred.

(Def. Mot. to Dismiss, Ex. 10 at 8). Plaintiff was placed on the Best Qualified List to fill one of

the vacancies. (Compl. ¶ 24).

       For GS-14 and 15 promotions in the Secret Service, the standard practice is for the

Assistant Director of the office with the vacancy to recommend a candidate to an Advisory

Board. (Compl. ¶ 26; Def. Mot. to Dismiss, Ex. 3 at 2–3). The Advisory Board in turn makes a

recommendation to the Director of the Secret Service, who then makes the final decision.

(Compl. ¶ 28; Def. Mot. to Dismiss, Ex. 3 at 2).

       The Assistant Director in Plaintiff’s office, who knew Plaintiff personally, was David

O’Connor. (Compl. ¶¶ 19, 21). Plaintiff alleges that some time in or around 2005, O’Connor

was part of a group of Secret Service supervisors who sent emails containing racist and

derogatory language. (Id. ¶ 20). Plaintiff also alleges that the Advisory Board was made up

mostly of white individuals. (Id. ¶ 26). O’Connor recommended two other applicants, both of

whom are white, and both of whom eventually received the promotions, instead of Plaintiff. (Id.

¶¶ 26, 29). Plaintiff alleges that he was the best qualified applicant for the position because he

had the most education and applicable experience for the position, including being a certified

polygraph examiner, and that neither of the individuals selected were certified polygraph

examiners at the time. (Id. ¶¶ 25, 31–32).

       On or around September 7, 2012, Plaintiff contacted an EEO counselor and filed an

informal complaint of racial discrimination. (Id. ¶ 9). He then filed a formal Individual

Complaint of Employment Discrimination based on race on October 19, 2012, requesting an

immediate promotion and punitive damages. (Compl. ¶ 10; Def. Mot. to Dismiss, Ex. 14). On

January 30, 2014, he requested a right to sue letter in order to file his discrimination complaint in



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federal court, and on July 2, 2014, the EEOC Administrative Judge issued an order of dismissal

in order to allow Plaintiff file a complaint in federal court, noting that more than 180 days had

passed since Plaintiff had filed his EEOC complaint. (Id., Exs. 18, 19). But on August 7, 2014,

the Director of the Complaints Management and Adjudication Section of the Office for Civil

Rights and Civil Liberties in the Department of Homeland Security served Plaintiff with a

Notification of Intent to Issue Final Action. (Id., Ex. 20). The Notification stated that the agency

did not deem Plaintiff’s administrative complaint fully withdrawn, and in order to withdraw

completely, Plaintiff had to submit a written request to the agency, or submit a copy of a civil

action filed in a federal district court. (Id.). Plaintiff subsequently submitted a request for a full

withdrawal from the administrative process, and filed this suit on November 10, 2014. (Id., Ex.

12).

         Defendant raises two arguments in support of his motion: first, that Plaintiff failed to

exhaust his administrative remedies, and second, that Plaintiff fails to make out a cognizable

claim of discrimination.

   II.      LEGAL STANDARD

         A motion to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a claim tests the

legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). “To

survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true,

to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). A claim is plausible when the factual content allows the court to “draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id. Thus, although a plaintiff

may survive a Rule 12(b)(6) motion even where “recovery is very remote and unlikely,” the facts

alleged in the complaint “must be enough to raise a right to relief above the speculative level.”



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Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007) (internal quotation marks omitted).

Evaluating a 12(b)(6) motion is a “context-specific task that requires the reviewing court to draw

on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.

           Summary judgment is appropriate where there is no disputed genuine issue of material

fact, and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex

Corp. v. Catrett, 477 U.S. 317, 325 (1986). In determining whether a genuine issue of material

fact exists, the court must view all facts in the light most favorable to the non-moving party. See

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The moving party

bears the “initial responsibility of informing the district court of the basis for its motion, and

identifying those portions of the ‘pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits . . .’ which it believes demonstrate the absence of

a genuine issue of material fact.” Celotex Corp., 477 U.S. at 323. The nonmoving party, in

response, must “go beyond the pleadings and by [its] own affidavits, or by the ‘depositions,

answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is

a genuine issue for trial.’” Id. at 324. “If the evidence is merely colorable, or is not significantly

probative, summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

249–50 (1986) (citations omitted). “[A]t the summary judgment stage the judge's function is not

himself to weigh the evidence and determine the truth of the matter but to determine whether

there is a genuine issue for trial.” Id. at 249.

    III.      ANALYSIS

              a. Summary Judgment

           In evaluating a motion to dismiss, “the court may consider the facts alleged in the

complaint, documents attached thereto or incorporated therein, and matters of which it may take

judicial notice.” Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007) (quoting
                                                    4
Stewart v. Nat'l Educ. Ass'n, 471 F.3d 169, 173 (D.C. Cir. 2006)) (internal quotation marks

omitted). “[W]here a document is referred to in the complaint and is central to the plaintiff's

claim, such a document attached to the motion papers may be considered without converting the

motion to one for summary judgment. . . . Moreover, a document need not be mentioned by

name to be considered ‘referred to’ or ‘incorporated by reference’ into the complaint.” Strumsky

v. Washington Post Co., 842 F. Supp. 2d 215, 217–18 (D.D.C. 2012) (citations omitted) (internal

quotation marks omitted). Otherwise, “a plaintiff with a legally deficient claim could survive a

motion to dismiss simply by failing to attach a dispositive document on which it relied.” Id.

(internal quotation marks omitted). However, “[i]f, on a motion under Rule 12(b)(6) or 12(c),

matters outside the pleadings are presented to and not excluded by the court, the motion must be

treated as one for summary judgment under Rule 56.” Fed. R. Civ. P. 12(d).

       “The decision to convert a motion to dismiss into a motion for summary judgment is

committed to the sound discretion of the trial court.” Ryan-White v. Blank, 922 F. Supp. 2d 19,

22 (D.D.C. 2013) (quoting Flynn v. Tiede–Zoeller, Inc., 412 F. Supp. 2d 46, 50 (D.D.C. 2006))

(internal quotation marks omitted). A court should convert the motion “[i]f extra-pleading

evidence ‘is comprehensive and will enable a rational determination of a summary judgment

motion,’” but, when extra-pleading evidence is “scanty, incomplete, or inconclusive, the district

court is more likely to decline to convert to summary judgment and permit further discovery.”

Ramsey v. Moniz, 75 F. Supp. 3d 29, 40 (D.D.C. 2014) (internal quotation marks omitted).

       Defendant argues that its motion should be converted under Fed. R. Civ. P. 12(d) because

Plaintiff had an opportunity for discovery during the administrative phase of the dispute and the

evidence which Plaintiff seeks to gather in discovery is irrelevant, or not in dispute. Plaintiff

opposes converting the motion and instead requests discovery because his “ability to prove



                                                  5
pretext is heavily dependent upon witness testimony, credibility issues and other evidence

requiring discovery.” (Pl. Opp. at 26). Plaintiff submitted a Rule 56(d) affidavit declaring that

“there is a myriad of relevant material and discoverable documents that have not been obtained

by Plaintiff,” and listing discoverable material which he claims must be obtained before the

dispute is ripe for summary judgment. (Id., Ex. 1 at 2).

        Federal Rule of Civil Procedure 56(d) states that “[i]f a non-movant shows by affidavit or

declaration that, for specified reasons, it cannot present facts essential to justify its opposition,” a

court is empowered to grant the motion and allow further discovery. Fed. R. Civ. P. 56(d). A

Rule 56(d) affidavit must: (1) outline the facts the non-movant “intends to discover and describe

why those facts are necessary to the litigation[;]” (2) “explain ‘why [the non-movant] could not

produce the facts in opposition to the motion for summary judgment[;]’” and (3) “show the

information is in fact discoverable.” U.S. ex rel. Folliard v. Gov't Acquisitions, Inc., 764 F.3d

19, 26 (D.C. Cir. 2014) (citations omitted) (internal quotation marks omitted). Plaintiff’s

affidavit meets all three criteria: he lists the items he intends to discover; he explains that he

received only partial responses to his discovery requests during the administrative phase and that

there are still relevant material documents that he does not have, such as agency emails and

internal documents; and he states that he did not have the opportunity to depose individuals

involved in the selection process, such as O’Connor. While Defendant does not deny that some

of the materials Plaintiff seeks were not provided during the administrative phase, it argues that

this information is not pertinent to the dispute.

        The situation here is similar to Ryan-White v. Blank, 922 F. Supp. 2d 19 (D.D.C. 2013),

in which the plaintiff sought recovery under Title VII, alleging retaliation for filing an EEOC

complaint. Id. at 21–22. In Ryan-White, Plaintiff filed a Rule 56(d) affidavit after having no



                                                    6
discovery outside of the administrative context and, in language similar to the Plaintiff’s here,

listed discoverable material necessary to make the dispute ripe for summary judgment. Id. at 25.

The court declined to convert the defendant’s motion to dismiss to one for summary judgment,

finding that the affidavit listed sufficient materials that had yet to be produced. Id. For the same

reasons, this court finds that Plaintiff’s affidavit suffices to establish that he is entitled to further

discovery on his claim, and will therefore not convert Defendant’s motion to dismiss to one for

summary judgment.

    b. Exhaustion

        Plaintiffs in Title VII actions must first exhaust their administrative remedies before

filing suit in federal court. Howard v. Pritzker, 775 F.3d 430, 438–439 (D.C. Cir. 2015).

“Exhaustion is required in order to give federal agencies an opportunity to handle matters

internally whenever possible and to ensure that the federal courts are burdened only when

reasonably necessary.” Brown v. Marsh, 777 F.2d 8, 14 (D.C. Cir. 1985).

        Under Title VII, 42 U.S.C. § 2000e-16(c), a plaintiff who has timely filed a complaint

with the EEOC may sue in federal court 180 days after filing the EEOC complaint “if aggrieved

by the final disposition of his complaint, or by the failure to take final action on his complaint.”

In addition to the mandated time period, “[e]xhaustion under Title VII demands a ‘good faith

effort by the employee to cooperate with the agency and EEOC and to provide all relevant,

available information.’” Payne v. Locke, 766 F. Supp. 2d 245, 249 (D.D.C. 2011) (internal

quotation marks omitted). For example, “[a] plaintiff's suit ‘will be barred for failure to exhaust

administrative remedies’ if he ‘forces an agency to dismiss or cancel the complaint by failing to

provide sufficient information to enable the agency to investigate the claim.’” Koch v. White,

744 F.3d 162, 165 (D.C. Cir. 2014) (quoting Wilson v. Peña, 79 F.3d 154, 164 (D.C. Cir. 1996)).



                                                    7
       Defendant argues that Plaintiff failed to exhaust his administrative remedies because he

voluntarily withdrew his complaint before final agency action was taken, and therefore cannot be

“aggrieved,” since his withdrawal of the complaint frustrated the Agency’s ability to resolve it.

Defendant relies on Wiley v. Johnson, 436 F. Supp. 2d 91 (D.D.C. 2006), in which the plaintiff,

after more than 180 days had passed since filing his complaint, and prior to the agency taking

final action, wrote to the EEOC and asked to withdraw from the administrative process and sue

in federal court. Id. at 95. The EEOC granted the plaintiff’s request for dismissal without

issuing a right to sue letter. Id. The court then dismissed the suit for failure to exhaust, noting

that “[a] voluntary dismissal cannot be used to circumvent the requirement of exhaustion.” Id.

       However, as Defendant notes, courts in this district have disagreed on whether voluntary

withdrawal after 180 days amounts to exhaustion. In Payne, where the plaintiff alleged that he

was not hired due to gender discrimination, the defendant sought to dismiss the complaint

because the plaintiff stopped cooperating with the agency over 239 days after filing his

administrative complaint, and then voluntarily withdrew to file suit in federal court. 766 F.

Supp. 2d at 247–248. The court denied the government’s motion, noting that all a plaintiff must

do to exhaust is cooperate with the agency for 180 days before withdrawing to sue in federal

court. Id. at 249–250. The court also found that “[b]ecause the Wiley opinion failed to consider

the language in 42 U.S.C. § 2000e–16(c) and 29 C.F.R. § 1614.407 authorizing federal

employees to bring suit 180 days after the filing of administrative complaints, this Court agrees

with other courts that have reviewed the opinion and declined to follow it.” Id. at 251. This

court agrees with the reasoning in Payne, and declines to follow Wiley. Defendant does not

argue that Plaintiff failed to cooperate with the agency during its investigation, was

uncooperative, or acted in bad faith. Defendant relies solely on the fact that Plaintiff chose to



                                                  8
withdraw his complaint—well over 180 days after he had filed it—and litigate in federal court,

as permitted under the statute. The court does not find the fact that the Plaintiff chose to

withdraw his administrative complaint to be determinative, especially given the length of time it

had been pending. See Howard v. Pritzker, 775 F.3d 430, 439 (D.C. Cir. 2015) (alteration in

original) (citations omitted) (“In recognition of lengthy administrative delays, Congress allowed

an employee to ‘escape from the administrative quagmire,’ by ‘fil[ing] a civil action if, after 180

days from the filing of the initial charge or appeal, the [employing] agency or the [EEOC] has

not taken final action.’”); Payne, 766 F. Supp. 2d at 250 (“[R]ecent opinions in this judicial

district have recognized that federal employees may seek judicial review after their

discrimination claims languished for more than 180 days at the administrative level.”); Augustus

v. Locke, 699 F. Supp. 2d 65, 71 (D.D.C. 2010) (“[A] plaintiff may withdraw from an

administrative hearing after cooperating with an agency's investigation for 180 days.”); Ramsey

v. Moniz, 75 F. Supp. 3d 29, 46 (D.D.C. 2014) (“[P]laintiff cooperated in the EEO proceedings

for more than 180 days and withdrew from her optional administrative hearing in good faith.

Thus, the plaintiff's withdrawal from the administrative process does not amount to a failure to

exhaust her administrative remedies.”). Given the length of time in which Plaintiff’s EEOC

complaint had been pending, and the fact that he did not act in bad faith or otherwise fail to

cooperate in the prosecution of his complaint, the court finds that Plaintiff properly exhausted his

administrative remedies.

           c.   Plaintiff’s Discrimination Claim

       When the record before the court contains no direct evidence of discrimination, it

employs the burden shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802 (1973), to determine if an individual suffered discrimination in violation of Title VII:



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       First, the plaintiff has the burden of proving by the preponderance of the evidence
       a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the
       prima facie case, the burden shifts to the defendant “to articulate some legitimate,
       nondiscriminatory reason for the [action in question].” Third, should the defendant
       carry this burden, the plaintiff must then have an opportunity to prove by a
       preponderance of the evidence that the legitimate reasons offered by the defendant
       were not its true reasons, but were a pretext for discrimination.


Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252–53 (1981) (quoting McDonnell

Douglas, 411 U.S. at 802, 804). “To establish a prima facie case of discrimination, a claimant

must show 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.’”

Wiley v. Glassman, 511 F.3d 151, 155 (D.C. Cir. 2007) (quoting Brown v. Brody, 199 F.3d 446,

452 (D.C. Cir. 1999)). In the context of non-hiring or non-promotion, the framework

“demand[s] that the alleged discriminatee demonstrate at least that his rejection did not result

from the two most common legitimate reasons on which an employer might rely to reject a job

applicant: an absolute or relative lack of qualifications or the absence of a vacancy in the job

sought.” Morgan v. Fed. Home Loan Mortg. Corp., 328 F.3d 647, 650–651 (D.C. Cir. 2003)

(quoting Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 358 n.44 (1977)) (internal

quotation marks omitted).

       At the motion to dismiss stage though, a plaintiff need not establish a prima facie case.

Gordon v. U.S. Capitol Police, 778 F.3d 158, 161–162 (D.C. Cir. 2015). Rather, he need only

allege “facts that, if true, would establish the elements of each claim.” Tressler v. Nat’l R.R.

Passenger Corp., 819 F. Supp. 2d 1, 5 (D.D.C. 2011) (quoting Robinson–Reeder v. Am. Council

on Educ., 532 F. Supp. 2d 6, 14 (D.D.C. 2008)) (internal quotation marks omitted). Thus “the

Court may explore the plaintiff's prima facie case at the dismissal stage to determine whether the

plaintiff can ever meet his initial burden to establish a prima facie case for Title VII

                                                 10
discrimination.” Id. (quoting Rattigan v. Gonzales, 503 F. Supp. 2d 56, 72 (D.D.C. 2007))

(internal quotation marks omitted).

       Neither party here disputes that Plaintiff is a member of a protected class. Defendant

argues that Plaintiff has failed to meet the second and third factors of McDonnell Douglas

because: (1) he was not selected for the promotion because he was not as qualified as the

selectees, and (2) he fails to raise an inference of discrimination. However, these arguments are

not appropriate at the motion to dismiss stage, where Plaintiff need only plead sufficient factual

allegations to support each element of a discrimination claim. The court finds that Plaintiff has

done so here.

       A failure to promote is an adverse action so long as there is an open position. Yarber-

Butler v. Billington, 53 F. App'x 120, 120 (D.C. Cir. 2002) (citing Stella v. Mineta, 284 F.3d 135,

146 (D.C. Cir. 2002)). Plaintiff alleges that he applied for an open position, that he was not

chosen for the promotion—despite allegedly being on the most qualified list and being a certified

polygraph operator—and that two other white individuals were selected. (Compl. ¶¶ 22, 24, 25,

29, 31–32).

       Plaintiff also alleges a sufficient factual basis to support an inference of discrimination.

He claims that his third line supervisor, who was the recommending official for the promotion,

was involved in sending racist emails in 2005. (Id. ¶ 20). In addition, he asserts that he was

more qualified than the white individuals who were selected. (Id. ¶¶ 24, 25, 29, 31–32). While

courts are reluctant to infer discrimination based on “stray remarks,” discriminatory comments

“are much more likely to raise an inference of bias in employment decisions where they ‘refer

directly to the plaintiff,’ and where they are made by decisionmakers, rather than coworkers

without influence over the challenged decision.” Hyson v. Architect of Capitol, 802 F. Supp. 2d



                                                 11
84, 99 (D.D.C. 2011) (citations omitted) (internal quotation marks omitted). Here, although

Plaintiff does not allege that the emails referred directly to him, he does allege that they were

sent by the supervisor who made the decision not to recommend Plaintiff and to select two white

employees. The court finds that at this stage of the proceedings, Plaintiff has alleged sufficient

facts to make a claim for relief plausible, and will therefore deny Defendant’s motion to dismiss.

   IV.      CONCLUSION

         For the foregoing reasons, Defendant’s motion is DENIED. A corresponding order will

issue separately.



Dated: September 23, 2016




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