                               UNITED STATES DISTRICT COURT
                               FOR THE DISTRICT OF COLUMBIA


TONY E. PASCHAL,

                 Plaintiff,

       v.

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

                 Defendant.


                                     MEMORANDUM OPINION

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

this     action          against         Defendant         the   District    of     Columbia

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

violation         of     the    Americans           with    Disabilities     Act    of   1990

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

       This matter is presently before the Court                            on Defendant's

Motion      to    Dismiss       or       in   the    Alternative    Motion    for    Summary

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

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

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

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

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

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

        A.     Factual Background 1

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

as a Business Relations Specialist with the District of Columbia

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

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

advocate for individuals with disabilities seeking employment in

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

included       outreach            and        engagement            with        employers        to    create

relationships with the business community.                                       SAC   ~   10.    Plaintiff

would leverage those relationships to find job opportunities for

qualified DDS clients. SAC                     ~   10.

        Plaintiff         has       lupus,         type         1        diabetes,     and       rheumatoid

arthritis,          which     he       alleges       substantially                limit    one        or   more

major        life     activities,              and        are        thus        properly        considered

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

his disability when he was hired. SAC                                ~    11.

1
     Defendant has requested Summary Judgment in the alternative
to his Motion to Dismiss, but for the reasons set forth below,
Summary Judgment is premature at this time.

       For purposes of ruling on a motion to dismiss, the factual
allegations of the complaint must be presumed to be true and
liberally construed in favor of the plaintiff. Aktieselskabet AF
21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 15 (D.C. Cir.
2 008) ; Shear v. Nat' l Rifle Ass' n of Am., 606 F. 2d 1251, 1253
 (D.C. Cir. 1979). Therefore, the facts set forth herein are
taken from the Second Amended Complaint ("SAC") [Dkt. No. 11].
                                                     -2-
        Plaintiff alleges               that beginning in November of 2011,                             his

direct         supervisor,          Sylvia        Bailey-Charles,                 "repeatedly          made

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

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

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

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

disabled persons should be "cleaning toilets                                 .            because they

[are]     handicapped."            SAC    ~     13.     On     one     occasion,         "Ms.   Bailey-

Charles sent job notices for janitorial and dishwashing work to

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

medical degree." Id.

        Plaintiff decided to meet with an EEO counselor to discuss

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

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

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

29, 2012.

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

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

Operations Manager                for    the District           of     Columbia Rehabilitation

Services Administration.                  SAC     ~    15.     At    the meeting,         Ms.   Bailey-

Charles        indicated that           she had read Plaintiff's                        calendar entry

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

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

                                                      -3-
that meeting:             (1)    to lower his pay grade, and (2)                            to put him on

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

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

Prince. SAC         ~    17.

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

Plaintiff          and    stated that             the    decision       to   issue           the       PIP was

based        on     his         alleged       "lack        of     performance"               during           the

performance period that ran from October 2011 through September

2012. SAC ~ 18.

       On         August        13,      2012,          Plaintiff       filed           a     Charge           of

Discrimination with                   the   District        of    Columbia         Office          of    Human

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

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

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

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

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

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

did not allege any specific actions. Id.

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

stopped attending networking events and other meetings that he

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

alleges that the events and meetings were "prime opportunities"

to network on behalf of DDS's clients and that exclusion from
                                                    -4-
these contacts interfered with his ability to perform his                                       job

duties.    SAC~     22.

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

negative Annual           Performance Evaluation,            rating him a              "Marginal

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

30, 2012.       SAC~   23.

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

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

24.   At    that    meeting,       both     managers       threatened            to    terminate

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

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

that she would change his job description,                        although that change

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

contract and DDS personnel procedures. SAC                    ~   25.

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

finding     No      Probable       Cause        for   Plaintiff s     1
                                                                               hostile         work

environment        and     retaliation          claims.     SAC       ~    29.        He     timely

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

OHR affirmed its findings. SAC              ~    30-31.

      B.        Procedural Background

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

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



                                            -5-
1] .   On    January   24,    2014,    Plaintiff         filed       his       Second Amended

Complaint [Dkt. No. 11].

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

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

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

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

Points and Authorities           in Opposition to Defendant's Motion to

Dismiss or in the Alternative Motion for Summary Judgment,                                    and

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

II.    STANDARD OF REVIEW

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

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

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

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

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

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

any    set    of   facts      consistent       with       the    allegations            in    the

complaint." Id. at 563.

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

dismiss must not make any judgment about the probability of the

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

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

must give the plaintiff the benefit of all reasonable inferences
                                            -6-
derived from the facts alleged." Aktieselskabet AF 21. November

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

(internal       quotation marks              and citations omitted).                        A complaint

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

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

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

(alteration in Iqbal).

III. ANALYSIS

        A.      Hostile Work Environment

        In    order     to     adequately          plead        a        claim       of    hostile        work

environment,           Plaintiff       must        allege       facts           showing          "that     his

employer         subjected            him     to         'discriminatory                   intimidation,

ridicule, and insult'                         'sufficiently severe or pervasive to

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

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

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

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

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

circumstances,          including           the    frequency             of     the       discriminatory

conduct,        its     severity,           its     offensiveness,                   and     whether        it

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

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

The Supreme Court has made clear that in order to prevent anti-
                                                   -7-
discrimination laws             from becoming a               "general     civility code [,]"

"offhand       comments,        and         isolated       incidents      (unless        extremely

serious)       will not amount to discriminatory changes in the terms

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

(internal citations and quotation marks omitted).

        Plaintiff     has      made        only two     specific,        factual    allegations

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

Bailey-Charles'            comment           that      disabled         persons     should          be

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

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

janitorial and dishwashing work to a disabled former practicing

physician. SAC ~ 13.

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

court    should     assume          their veracity and            then    determine        whether

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

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

standard.       Without more,              the two examples Plaintiff provides are

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

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

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

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

        Plaintiff     does      allege        that     "Ms.    Bailey-Charles          repeatedly

made    negative,     derogatory             statements                   about     people        with

                                                 -8-
disabilities[.]" SAC ,                 13. However,            even if Ms. Bailey-Charles'

single,       quoted       comment       is    taken      as    a   representative           example,

Plaintiff          has    not    met     his    burden.         Plaintiff       must       show      that

Defendant's          conduct       was    "sufficiently             severe     or     pervasive          to

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

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

citations          and    quotation       marks       omitted).            Because    Ms.      Bailey-

Charles'       comment--even if repeated--does not rise to this level

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

       B.      Retaliation

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

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

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

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

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

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

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

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

employee       must       show    she     engaged         in    protected       activity,           as    a

consequence         of     which    her       employer         took    a    materially         adverse

action       against       her." (internal            citations         and    quotation            marks

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

that    he    "engaged in a              statutorily protected activity when he
                                                    -9-
scheduled a meeting with an EEO counselor." SAC                                ~    34. The Court,

therefore,           must       determine         whether          the    conduct     alleged         by

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

pleadings and all                reasonable inferences to be drawn from them

plausibly present a causal link between the EEO meeting and the

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

Jones, 205 F.3d at 433.

                1.         Adverse Action

        "Adverse           actions     in      the    retaliation         context     encompass        a

broader sweep of actions                       than those          in a    pure discrimination

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

2008)     (internal           quotation marks               omitted) .     Retaliation         actions

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

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

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

'could        well        dissuade         a    reasonable         worker     from      making        or

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

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

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

annoyances"           are      normally         not       enough    to    deter      workers        from

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

        Plaintiff contends that several of Defendant's actions were

materially           adverse:        Ms.       Bailey-Charles'            threat     and      eventual
                                                     -10-
imposition of the PIP, her assignment of a "Marginal Performer"

rating,    her threat to lower Plaintiff's pay grade,                          Ms.   Bailey-

Charles'       and Ms.      Vaughn-Roach's        threat       to terminate or demote

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

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

intimidation and sense that Ms.               Bailey-Charles and Ms.                 Vaughn-

Roach tried to "bully" him.

                             a.    Perfor.mance  Rating                and     Perfor.mance
                                   Improvement Plan

        Plaintiff's         "Marginal    Performer"        rating       and     Performance

Improvement       Plan       ("PIP")    are   best       considered          simultaneously

because our Court of Appeals has held that together such actions

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

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

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

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

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

particular performance report was not an adverse action "because

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

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

606 F.3d at 818) . 2



2
     Defendant also argues that the facts of this case are
distinct from those in Porter because Plaintiff in this case
successfully completed his PIP and successfully appealed his
                                           -11-
        In fact,        Porter involved two separate interim performance

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

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

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

Appeals ruled that this evaluation was not an adverse action.

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

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

despite      a    policy      that    normally     excluded       interim reviews                 from

personnel         files.       Id.    Moreover,      the        second           evaluation       was

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

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

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

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

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

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

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

        Plaintiff alleges that Defendant gave him both a negative

performance rating and placed him on a PIP for the performance

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

23.    Plaintiff        further       alleges    that     the     "negative          performance

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

performance rating. Def. 's Reply at 4-5. Since that argument
rests on facts that are not alleged in Plaintiff's pleadings, it
cannot be addressed properly in a Motion to Dismiss.
                               -12-
reassignment,         and     they     had     a    detrimental         effect     on        his

responsibilities            and     promotion      opportunities."         SAC                36.

Defendant's       alleged         actions    are    therefore     analogous            to     the

second      evaluation            considered       by     the    Porter        Court          and

consequently, qualify as materially adverse actions. 3

     Plaintiff need not allege that he was denied a promotion,

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

action that       a   reasonable employee would have                found materially

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

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

done so here.



3
     Defendant looks to other authority to support its view.
Citing Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003) and
Brown v. Brody, 199 F.3d 446, 457-58 (D.C. Cir. 1999), Defendant
contends that a PIP or a negative review can constitute adverse
actions only when accompanied by a present effect on grade or
salary. Def.'s Mot. at 11-12. However, the Supreme Court's more
recent opinion in Burlington Northern, 548 U.S. at 64, makes
clear that adverse actions are "not limited to discriminatory
actions that affect the terms and conditions of employment." Our
Court of Appeals has concluded that the retaliation standard
applied in Brown v. Brody--that a plaintiff must show a
materially adverse change in the terms and conditions' of
employment--was abrogated by Burlington Northern. Steele v.
Schafer, 535 F.3d 689, 692-696 (D.C. Cir. 2008).

     Moreover, in Porter (decided after Burlington Northern) our
Court of Appeals made no finding that Melvin Porter had in fact
experienced a reduction in grade or salary. Instead the Court
found that "the rating and the PIP could expose him to removal,
reduction in grade, withholding of within grade increase or
reassignment." Porter, 606 F.3d at 818 (emphasis added).
                               -13-
                             b.      Threats of Demotion and Ter.mination

        Plaintiff alleges that Ms. Bailey-Charles threatened him on

two     occasions.     First,       on or about        May 22,       2012,      Ms.    Bailey-

Charles "threatened to lower [Plaintiff]'s pay grade or put him

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

to discuss his annual performance evaluation,                            both Ms.      Bailey-

Charles        and    Ms.         Vaughn-Roach         "threatened         to         terminate

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

        The    threats of demotion and termination were made during

conversations         with        Plaintiff     about     the    PIP       and        "Marginal

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

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

allegation that the "negative performance evaluation and the PIP

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

                             c.      Change in Duties and Proposed Change in
                                     Job Description

        Plaintiff     relies        exclusively      on    Burlington           Northern     to

support his argument that denial of the opportunity to attend

networking       events      and    other     meetings     constituted           an     adverse

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

weak     support     for     Plaintiff's        position. 4      Burlington           Northern


4
     Plaintiff, however, is correct to point out that Burlington
Northern supersedes previous precedent in this Circuit that
would have required adverse actions that affect "the terms and
                                              -14-
involved         the       transfer        of     a    forklift       operator       to     a    general

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

evidence that the track laborer duties were by all accounts more

arduous      and           dirtier;        that        the     forklift       operator          position

required         more        qualifications,                 which     is     an     indication         of

prestige;         and            that     the         forklift        operator       position         was

objectively            considered          a    better        job     and    the    male        employees

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

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

close to the conduct in Burlington Northern.

      Our    Court           of    Appeals        has     made       clear    its    "hesitancy         to

engage      in    judicial              micromanagement          of    business        practices        by

second-guessing              employers'           decisions          about     which       of     several

qualified        employees              will     work     on     a    particular       assignment."

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

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

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

processing            of     [an        employee's]          cases                     and

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

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

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

conditions of employment" in order to make out a                                           retaliation
claim. Steele v. Schafer, 535 F.3d 689, 692-696
          ~~~~~~~~~~~
                                                                                            (D.C. Cir.
2008) .
                             -15-
attended management meetings or received management-related e-

mails and other communications" for "several months [.]" Forkkio

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

       Plaintiff must show that the change in his duties were not

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

worker from making or supporting a                         charge of discrimination."

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

opportunity to attend networking events and meetings falls short

of that requirement.

       Finally,    Plaintiff states that the proposed change in job

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

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

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

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

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

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

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

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

Consequently,      the change in duties and proposed change in job

description do not, as alleged, constitute adverse actions.

                              d.     Bullying and Intimidation

       Finally,    Plaintiff contends that he felt                         "intimidated" and

"bull[ied]" in a meeting with Ms. Bailey-Charles and Ms. Vaughn-
                                              -16-
Roach.    SAC     ~    21.    Plaintiff's contentions, without more, are the

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

good manners" that are not actionable as retaliation. Burlington

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

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

constitute        the        variety         of      "sporadic        verbal       altercations         or

disagreements           [that]          do     not      qualify       as    adverse        actions     for

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

Consequently,              these        allegations            do     not    constitute            adverse

action.

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

the      level        of      a     materially                adverse       action,         Plaintiff's

allegations related to the threats, negative performance review,

and PIP are enough to adequately plead his retaliation claim.

             2.         Causal Link Between                     the   Adverse       Action     and     the
                        Protected Activity

       Defendant argues that because "Plaintiff                                    [did]    not allege

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

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

is no sufficient causal link between the protected activity and

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

A "causal connection                              may be established by showing that

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

                                                       -17-
and that the adverse                        . action took place shortly after that

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

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

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

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

activity and the adverse action can indeed support an inference

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

         Defendant       does      not        dispute          that        Plaintiff          engaged       in

protected        activity       when        he     scheduled          a    meeting          with     an    EEO

counselor.       Nor does Defendant dispute                           that      the actual meeting

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

demonstrated         her      knowledge             of     the     protected             activity          and

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

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

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

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

question         that    a      plausible              causal         relationship             has        been

adequately pleaded.

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

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

performance        problems,           as     it    is     that       it     was      retaliation          for

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

required, however,            in order to state a claim of retaliation,                                     to
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allege           facts     sufficient       to     negate      [Defendant's]          alternative

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

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

all     reasonable             inferences        that    arise      from    his      allegations,

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

infer        that        Ms.     Bailey-Charles          was     retaliating         against    him

because of his EEO meeting.                      Plaintiff has sufficiently alleged

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

which        [his]       employer took a          materially adverse action against

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

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

        C.         Motion for Summary Judgment and Motion to Stay

        In        the    alternative       to     its    Motion     to     Dismiss,     Defendant

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

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

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

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

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

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

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

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

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

at     1.        Ordinarily,        that    alone        would     make     summary      judgment
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premature. Hollabaugh v. Office of the Architect of the Capitol,

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

summary judgment was premature in employment discrimination suit

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

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

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

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

clear       that    "fundamentally,             under     the     Federal        Rules      of    Civil

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

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

reasonable opportunity to present all material made pertinent to

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

'reasonable          opportunity'         includes         the        opportunity        to      pursue

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

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

Defendant's          Motion      for     Summary         Judgment           is     denied     without

prejudice.

IV.        CONCLUSION

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

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

Summary Judgment is denied without prejudice and Plaintiff's




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

Order shall accompany this Memorandum Opinion.




August~, 2014
                                                                Judge


Copies to: attorneys on record via ECF




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