                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

CHARLES B. JONES,                             :
                                              :
                       Plaintiff,             :
                                              :       Civil Action No.:      04-1696 (RMU)
                       v.                     :
                                              :       Re Document Nos.:      62, 64
BEN BERNANKE, Chairman of                     :
The Board of Governors of the                 :
Federal Reserve System,                       :
                                              :
                       Defendant.             :

                                    MEMORANDUM OPINION

     GRANTING THE PLAINTIFF’S MOTION FOR LEAVE TO SUPPLEMENT THE COMPLAINT;
        DENYING WITHOUT PREJUDICE THE PLAINTIFF’S MOTION FOR DISCOVERY

                                      I. INTRODUCTION

       This matter is before the court on the plaintiff’s motion for leave to supplement his

complaint and motion for discovery. The plaintiff, a former employee of the Federal Reserve,

commenced this action alleging that the defendant discriminated against him on the basis of his

age and gender and retaliated against him for participating in protected activity, in violation of

the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 633a et seq., and Title VII

of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e-1 et seq. The court granted

summary judgment to the defendant on all of the plaintiff’s claims. On appeal, the Circuit

affirmed the dismissal of the plaintiff’s discrimination claims but remanded the plaintiff’s

retaliation claims for further proceedings. The plaintiff now moves to supplement his complaint

to add claims of additional retaliatory treatment and constructive discharge. In addition, the

plaintiff seeks discovery pursuant to Federal Rule of Civil Procedure 56(f).
       Because the plaintiff’s proposed supplemental claims are not futile and because

permitting supplementation would not significantly prejudice the defendant, the court grants the

plaintiff’s motion for leave to supplement the complaint. The court, however, denies without

prejudice the plaintiff’s Rule 56(f) motion for discovery as that motion is premature.



                     II. FACTUAL & PROCEDURAL BACKGROUND

       The factual background and procedural history underlying this case are detailed in the

prior decisions of this court and the Circuit. See, e.g., Mem. Op. (Mar. 10, 2008) at 2-5; Jones v.

Bernanke, 550 F.3d 670, 672-74 (D.C. Cir. 2009). By way of brief background, the plaintiff

alleges that in March 1998, Michael Martinson, his then-supervisor, did not promote him to a

managerial position and instead selected a younger woman for the position. Am. Compl. ¶¶ 9-

10. The plaintiff suspected that his age or gender was a factor in his non-selection, but did not

file a complaint with the Equal Employment Opportunity Commission (“EEOC”) because

Martinson and another supervisor, William Ryback, assured him that he would receive a one-

level promotion. Id. ¶¶ 11-12. After the promised promotion did not materialize, in November

1999, the plaintiff filed an informal charge with the defendant’s EEOC office. Id. ¶ 17. The

plaintiff then filed a formal administrative complaint in January 2000. See Def.’s First Mot. for

Summ. J., Ex. 4.

       The plaintiff alleges that after he filed the administrative complaint, Martinson

unjustifiably downgraded his performance evaluations from “outstanding” in 1999 to

“commendable” in 2000, 2001, 2002 and 2003. Am. Compl. ¶ 18. The plaintiff contends that

these “false” and “disparaging” performance evaluations were given in retaliation for his

participation in protected EEOC activity. Id. ¶ 27.




                                                 2
       The plaintiff filed his original complaint in this court on October 4, 2004, alleging that

the defendant unlawfully retaliated against him in violation of Title VII and the ADEA by giving

him downgraded performance evaluations for the years 2000, 2001, 2002 and 2003. See

generally Compl. On December 13, 2005, the court granted summary judgment to the defendant

on all of the plaintiff’s claims except for the one based on his performance evaluation for the

year 2000. See generally Mem. Op. (Dec. 13, 2005).

       On August 29, 2006, the court granted the plaintiff’s motion to amend his complaint to

assert a disparate treatment claim under Title VII and the ADEA based on his non-selection for

the manager position. See generally Mem. Op. (Aug. 29, 2006). In a memorandum opinion

dated June 11, 2007, the court granted the defendant’s motion for summary judgment on his non-

selection claim and allotted thirty days for the defendant to file a motion addressing the

retaliation claim based on the 2000 performance evaluation. See generally Mem. Op. (June 11,

2007). On March 10, 2008, the court granted summary judgment to the defendant on the

plaintiff’s remaining retaliation claim based on his 2000 performance evaluation, thus disposing

of all of the plaintiff’s claims. See generally Mem. Op. (Mar. 10, 2008).

       On appeal, the Circuit affirmed the court’s dismissal of the plaintiff’s disparate treatment

claim, but reversed the court’s ruling on the plaintiff’s claim regarding his 2000 performance

evaluation, holding that the plaintiff had offered sufficient evidence to permit a reasonable jury

to believe that the performance evaluation constituted retaliation. Jones, 557 F.3d at 674, 679-

81. In addition, the Circuit reversed the court’s ruling on the plaintiff’s claims based on his

2001, 2002 and 2003 performance evaluations and remanded those claims for further

proceedings. Id. at 681.




                                                 3
          Following remand, the plaintiff filed this motion to supplement the complaint under

Federal Rule of Civil Procedure 15(d). See generally Pl.’s Mot. to Supplement Compl. The

plaintiff seeks to add a claim regarding the performance evaluation he received in 2004, which

assigned the plaintiff a marginal rating in several performance categories and which the plaintiff

contends was retaliatory like the performance evaluations given in 2000, 2001, 2002 and 2003.

See id. at 8-13. In addition, the plaintiff seeks to add a claim for constructive discharge, alleging

that the defendant’s retaliatory behavior forced him to resign from his position in August 2005.

See id.

          On June 29, 2009, the plaintiff filed a motion for discovery. See generally Pl.’s Mot. for

Discovery. Through this motion, the plaintiff seeks to augment the discovery he obtained at the

administrative level under Federal Rule of Civil Procedure 56(f), which authorizes discovery to

permit a party to obtain facts essential to justify its opposition to a motion for summary

judgment. See generally id.

          Both motions are now ripe. See generally Def.’s Opp’n to Pl.’s Mot. to Supplement

Compl. & Pl.’s Mot. for Discovery (“Def.’s Opp’n”); Pl.’s Reply in Support of Mot. to

Supplement Compl. (“Pl.’s Reply”). The court now turns to an analysis of the applicable legal

standards and the parties’ arguments.



                                           III. ANALYSIS

    A. The Court Grants the Plaintiff’s Motion for Leave to Supplement the Complaint

              1. Legal Standard to Supplement a Pleading Pursuant to Rule 15(d)

          Federal Rule of Civil Procedure 15(d) authorizes the court, “upon reasonable notice and

upon such terms as are just,” to permit a party to serve a supplemental pleading setting forth




                                                   4
events which have occurred since the filing of the original complaint. FED. R. CIV. P. 15(d). The

rule’s basic aim is “to make pleadings a means to achieve an orderly and fair administration of

justice.” Gomez v. Wilson, 477 F.2d 411, 417 (D.C. Cir. 1973) (quoting Griffin v. County School

Bd., 377 U.S. 218, 227 (1964)). Supplements under Rule 15(d) always require leave of the court,

and should be “freely granted when doing so will promote the economic and speedy disposition

of the entire controversy between the parties, will not cause undue delay or trial inconvenience,

and will not prejudice the rights of any of the other parties to the action.” Hall v. CIA, 437 F.3d

94, 100 (D.C. Cir. 2006) (citing United States v. Hicks, 283 F.3d 380, 385 (D.C. Cir. 2002));

Wildearth Guardians v. Kempthorne, 592 F. Supp. 2d 18, 23 (D.D.C. 2008) (noting that leave to

supplement under Rule 15(d) “should be freely given unless there is a good reason, such as

futility, to the contrary”) (quoting Willoughby v. Potomac Elec. Power Co., 100 F.3d 999, 1003

(D.C. Cir. 1996)). The court has broad discretion in determining whether to allow supplemental

pleadings in the interests of judicial economy and convenience. Wildearth Guardians, 592 F.

Supp. 2d at 23.

                                   2. The Parties’ Arguments

       The plaintiff seeks leave to supplement his complaint to add a retaliation claim based on

his 2004 performance evaluation and a claim for constructive discharge. See generally Pl.’s

Mot. to Supplement Compl. He asserts that the proposed claim regarding his 2004 performance

evaluation is merely a continuation of the claims concerning the retaliatory performance

evaluations he received in 2000, 2001, 2002 and 2003. Id. at 8. Likewise, the plaintiff contends

that his constructive discharge claim is “connected” to the original complaint in that his forced

resignation was the result of the defendant’s ongoing retaliatory performance evaluations, which

precluded him from any further career advancement. Id. at 9. Given the fact that the proposed




                                                 5
supplemental claims represent a continuation of the claims raised in the complaint, the plaintiff

argues, the defendant can claim neither surprise nor prejudice and the court should permit

supplementation.1 Id. at 12.

        The defendant contends that the court should deny the plaintiff’s motion to supplement as

futile. See generally Def.’s Opp’n. The defendant argues that the plaintiff failed to exhaust his

administrative remedies for either claim, such that those claims would be subject to dismissal if

the court granted leave to supplement. Id. at 6-9. In addition, the defendant contends that the

plaintiff has failed to state a claim for retaliation or constructive discharge because he has not

asserted a set of allegations that would plausibly support either claim. Id. at 3-5, 9-10. Lastly,

the defendant contends that allowing the plaintiff to supplement his complaint at this stage of the

litigation would result in prejudice to the defendant. Id. at 10-11.

        The plaintiff responds that he was not required to exhaust his administrative remedies for

either proposed supplemental claim, noting that the court had previously ruled that exhaustion is

not required with respect to retaliation claims based on conduct arising after the filing of the

administrative complaint. Pl.’s Reply in Support of Mot. to Supplement Compl. (“Pl.’s Reply”)

at 7 (citing Mem. Op. (Dec. 13, 2005) at 5). In addition, the plaintiff contends that both his

retaliation claim premised on the 2004 performance evaluation and his constructive discharge

claim have the requisite plausibility to withstand a motion to dismiss, and therefore are not futile.

Id. at 1-6, 11-16.

        The court addresses each of the disputed issues – exhaustion of administrative remedies,

failure to state a claim and prejudice – in turn.




1
        The plaintiff also notes that trial has not yet been scheduled in this case. Pl.’s Mot. to
        Supplement Compl. at 12.


                                                      6
              a. The Administrative Exhaustion Requirement Does Not Render
                    the Plaintiff’s Proposed Supplemental Claims Futile

       Turning first to the exhaustion issue, the court notes that before commencing a Title VII

or ADEA suit in the district court, a plaintiff must exhaust his or her remedies at the

administrative level by asserting his claims in an administrative complaint. 42 U.S.C. § 2000e-

16(c); 29 U.S.C. § 633a(b). Dismissal results when a plaintiff fails to exhaust his or her

administrative remedies. Rann v. Chao, 346 F.3d 192, 194-95 (D.C. Cir. 2003) (affirming the

trial court’s dismissal of the plaintiff's ADEA claim for failure to exhaust administrative

remedies); Stewart v. Ashcroft, 352 F.3d 422, 426 (D.C. Cir. 2003) (affirming the dismissal of

the plaintiff’s claim because “timely exhaustion of administrative remedies is a prerequisite to a

Title VII action against the federal government”).

       As the plaintiff points out, this court held in a prior decision in this case that “a plaintiff

need not exhaust administrative remedies to file a retaliation claim in court.” Mem. Op. (Dec.

13, 2005) at 5-6 (citing Turner v. District of Columbia, 383 F. Supp. 2d 157, 178 (D.D.C. 2005)).

Since the entry of that decision, however, this court has had occasion to revisit this issue in other

cases. See, e.g., Lewis v. District of Columbia, 535 F. Supp. 2d 1, 6-8 (D.D.C. 2008); Jones v.

Univ. of D.C., 505 F. Supp. 2d 78, 84 (D.D.C. 2007). As noted therein, several courts in this

district have interpreted the Supreme Court’s ruling in National Railroad Passenger Corporation

v. Morgan, 536 U.S. 101 (2002) as requiring a plaintiff to separately exhaust his or her

administrative remedies for every discrete act of discrimination or retaliation, regardless of

whether the claims are “like or reasonably related” to claims contained in the administrative

complaint. See, e.g., Lewis, 535 F. Supp. 2d at 7 (citing cases). The court observed, however,

that at least one court in this district has adopted a narrower reading of Morgan in the context of

retaliation claims. See id. (citing Hazel v. Wash. Metro. Area Transit Auth., 2006 WL 3623693,



                                                   7
at *8 (D.D.C. Dec. 4, 2006)). Relying on a post-Morgan decision in the Eighth Circuit, the

Hazel court held that separate exhaustion is not required for acts of retaliation occurring after the

filing of an administrative complaint that would have come within the “scope of any

investigation that reasonably could have been expected to result from [the] initial

[administrative] charge of discrimination.” Hazel, 2006 WL 3623693, at *8 (citing Wedow v.

City of Kansas City, Mo., 442 F.3d 661, 674 (8th Cir. 2006)).

       This court has since adopted the reasoning of Hazel and Wedow, holding that if the

allegations underlying the plaintiff’s retaliation claims “were of a like kind to the retaliatory acts

alleged in the EEOC charge, which were specified to be of an ongoing and continuing nature,” a

plaintiff’s failure to separately exhaust his or her administrative remedies will not serve as a bar

to suit, as those claims would have come within the scope of any investigation that reasonably

could have been expected to result from the administrative complaint. Smith-Thompson v.

Rodriguez, 2009 WL 3069666, at *11 (D.D.C. Sept. 28, 2009) (quoting Wedow, 442 F.3d at 673)

(internal citation omitted); see also Hairston v. Tapella, 2009 WL 3379008, at *7 (D.D.C. Oct.

21, 2009) (observing that “[a] more recent view is that acts of alleged retaliation occurring after

an EEOC charge is filed need not be separately exhausted where they necessarily would have

come within the ‘scope of any investigation that reasonably could have been expected to result’”

from the administrative complaint) (quoting Hazel, 2006 WL 3623693, at *8)); cf. Jones v.

Calvert Group, Ltd., 551 F.3d 297, 304 (4th Cir. 2009) (vacating summary judgment for the

employer because the plaintiff’s retaliation claim related to allegations asserted in the

administrative complaint and noting that Morgan does not require a different result); Vasquez v.

County of Los Angeles, 349 F.3d 634, 644 (9th Cir. 2003) (holding after Morgan that the court’s

jurisdiction extends to “all claims of discrimination that fall within the scope of the EEOC’s




                                                  8
actual investigation or an EEOC investigation that could reasonably be expected to grow out of

the charge”).

          With these principles in mind, the court turns to the plaintiff’s proposed retaliation claim

premised on his poor performance evaluation in 2004. The 2004 performance evaluation is

plainly “of a like kind” to the retaliatory acts asserted at the administrative level regarding the

negative performance evaluations he received in 2000, 2001, 2002 and 2003. See Def.’s 1st Mot.

for Summ. J., Ex. 9A (EEOC Final Agency Decision) at 6-8 (granting the defendant’s motion for

summary judgment on the plaintiff’s retaliation claims premised on his 2000, 2001, 2002 and

2003 performance evaluations). Furthermore, in his first motion to amend his administrative

complaint, filed with the EEOC in June 2002, the plaintiff requested leave to assert claims

concerning, inter alia, the “retaliatory performance evaluations” he received in 2000 and 2001,

which he described as “part of the continuing age and sex discrimination and retaliation against

Mr. Jones by the Federal Reserve.” Def.’s 1st Mot. for Summ. J., Ex. 7 at 3 (emphasis added).2

Thus, the plaintiff expressly averred at the administrative level that negative performance

evaluations were part of a continuing pattern of retaliation, as required to satisfy the second

prong of the Wedow standard. See Wedow, 442 F.3d at 673. Accordingly, the court holds that

the plaintiff’s failure to separately exhaust his administrative remedies with respect to his claim

regarding his 2004 performance evaluation does not render that proposed retaliation claim futile.

See id.

          Likewise, the plaintiff’s constructive discharge claim arises out of the negative

performance evaluations that were adjudicated at the administrative level. Pl.’s Mot. to

Supplement Compl., Ex. 1 (Proposed Supplemental Compl.) ¶¶ 30-32. More specifically, the


2
          In December 2002, the EEOC administrative judge granted the plaintiff’s motion to amend in
          relevant part. Pl.’s Opp’n to Def.’s First Mot. for Summ. J., Ex. 27 at 5.


                                                    9
plaintiff alleges that the defendant “constructively discharged [him] in retaliation for his EEO

activity when it continued to present him with false evaluations from 2000 through 2004 in

violation of [the ADEA].” Id. ¶ 31. Thus, like the proposed retaliation claim premised on the

plaintiff’s 2004 performance evaluation, the plaintiff’s proposed constructive discharge claim

grows out of the claims asserted in the administrative complaint and likely would have come

within the scope of any investigation that reasonably could have been expected to result from the

administrative complaint. See Calvert Group, 551 F.3d at 303-04 (holding that the plaintiff’s

retaliatory termination claim was sufficiently related to allegations in the administrative

complaint so as not to require separate administrative exhaustion); Wedow, 442 F.3d at 673-75

(holding that the plaintiffs’ administrative charge, which alleged ongoing retaliatory denials of

advancement opportunities, obviated the need for the separate administrative exhaustion of the

plaintiffs’ termination claim); Hazel, 2006 WL 3623693, at *8 (holding that the plaintiff’s

retaliatory non-selection and termination claims were not barred because these additional

allegations “concern[ed] ongoing retaliatory activity of a kind similar to that alleged in her initial

charge”). Accordingly, the court declines to hold that the plaintiff’s proposed constructive

discharge claim would be futile based on his failure to exhaust his administrative remedies.

           b. The Plaintiff’s Proposed Claims Are Not Futile Under Rule 12(b)(6)

        “To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.

Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks omitted); Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007) (abrogating the oft-quoted language from Conley v. Gibson,

355 U.S. 41, 45-46 (1957), instructing courts not to dismiss for failure to state a claim unless it

appears beyond doubt that “no set of facts in support of his claim [] would entitle him to relief”).




                                                   10
A claim is facially plausible when the pleaded factual content “allows the court to draw the

reasonable inference that the defendant is liable for the misconduct.” Iqbal, 129 S. Ct. at 1949.

“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a

sheer possibility that a defendant has acted unlawfully.” Id.

       The court turns first to the plaintiff’s proposed claim that his 2004 performance

evaluation was retaliatory. To establish a prima facie case of retaliation, a plaintiff must show

that (1) he engaged in a statutorily protected activity, (2) a reasonable employee would have

found the challenged action materially adverse,1 and (3) there existed a causal connection

between the protected activity and the materially adverse action. Burlington N. & Santa Fe Ry.

Co. v. White, 548 U.S. 53, 67-69 (2006); Jones, 557 F.3d at 677. The plaintiff’s burden is not

great: he “merely needs to establish facts adequate to permit an inference of retaliatory motive.”

Forman v. Small, 271 F.3d 285, 299 (D.C. Cir. 2001).

       The defendant contends that supplementation would be futile because the plaintiff has

failed to properly allege a causal connection between the 2004 performance evaluation and any

involvement in protected activity. Def.’s Opp’n at 10. Yet the plaintiff alleges that after he

received his 2004 performance evaluation, his direct supervisor explained that she was under

pressure to “hammer” the plaintiff and that her supervisors had complained that she had not

“hammered” him enough. Pl.’s Mot. to Supplement Compl. at 5. Furthermore, the plaintiff

alleges that he received a marginal assessment of his ability to “interact[] well with staff of other


1
       In the retaliation context, the term “adverse action” “encompass[es] 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). Thus, “[r]etaliation claims are ‘not limited to discriminatory actions that affect
       the terms and conditions of employment’ and may extend to harms that are not workplace-related
       or employment-related so long as ‘a reasonable employee would have found the challenged
       action materially adverse.’” Id. (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.
       53, 64, 68 (2006)).



                                                   11
divisions, Reserve Banks, and other agencies and regulated institutions,” despite the fact that

prior to his filing of an EEO complaint, he had been praised for his communication skills. Id. at

4. These allegations, if true, would offer support to the plaintiff’s theory that the 2004

performance evaluation was not an honest assessment of the plaintiff’s performance, but was

instead given in retaliation for his involvement in protected activity. See Jones, 557 F.3d at 680-

81 (noting that evidence undermining the employer’s assertion that a disputed performance

evaluation was an honest assessment of the plaintiff’s performance “‘usually’ is itself sufficient

to allow a reasonable jury to infer retaliation”) (citing George v. Leavitt, 407 F.3d 405, 413 (D.C.

Cir. 2005)).

         Furthermore, the plaintiff alleges that the defendant issued his 2004 performance

evaluation in November 2004, shortly after the plaintiff filed his complaint in this court on

October 4, 2004. See generally Compl. A plaintiff may establish a causal connection by

showing a close temporal proximity between his involvement in protected activity and the

materially adverse action taken by his employer. See Cones v. Shalala, 199 F.3d 512, 521 (D.C.

Cir. 2000) (quoting Mitchell v. Baldrige, 759 F.2d 80, 86 (D.C. Cir. 1985)); accord Clark County

Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (noting that the temporal connection must be

“very close”: a three- or four-month period between an adverse action and protected activity is

insufficient to show a causal connection, and a twenty-month period suggests “no causality at

all”).

         Moreover, numerous courts have emphasized that a plaintiff alleging retaliation faces a

relatively low hurdle at the motion to dismiss stage. See Rochon v. Gonzales, 438 F.3d 1211,

1220 (D.C. Cir. 2006) (observing that “in order to survive a motion to dismiss, ‘all [the]

complaint has to say’ is ‘the Government retaliated against me because I engaged in protected




                                                 12
activity’”) (quoting Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1114 (D.C. Cir. 2000));

accord Rhodes v. Napolitano, 656 F. Supp. 2d 174, 186 (D.D.C. 2009) (holding that the

plaintiff’s allegations that her employer “initiated the vehicle investigation and subsequently

issued the Letter of Counseling in retaliation for her 2003 or 2004 EEOC activity” was

“sufficient to survive a motion to dismiss”); Beckham v. Nat’l R.R. Passenger Corp., 590 F.

Supp. 2d 82, 89 (D.D.C. 2008) (denying the defendant’s motion to dismiss a retaliation claim

because the plaintiff “satisfied her burden by alleging that she was denied benefits because of her

opposition to actions made unlawful by Title VII”); Vance v. Chao, 496 F. Supp. 2d 182, 187

(D.D.C. 2007) (denying the defendant’s motion to dismiss because “[a]t this early stage of the

proceedings, [the] plaintiff can meet her prima facie burden simply by alleging that the adverse

actions were caused by her protected activity”); see also Swierkiewicz v. Sorema N.A., 534 U.S.

506, 511 (2002) (noting that the plaintiff need not plead every element of his prima facie case).

In sum, the plaintiff’s allegation that the 2004 performance evaluation was given in retaliation

for his involvement in protected activity is sufficient to meet this pleading standard.

       The court next turns to the plaintiff’s proposed claim for constructive discharge. To state

a claim for constructive discharge, the plaintiff must show “(1) intentional discrimination

existed, (2) the employer deliberately made working conditions intolerable, and (3) aggravating

factors justified the plaintiff’s conclusion that she had no option but to end her employment.”

Cole v. Powell, 605 F. Supp. 2d 20, 25 (D.D.C. 2009) (quoting Turner v. District of Columbia,

383 F. Supp. 2d 157, 171 (D.D.C. 2005)); see also Mungin v. Katten Muchin & Zavis, 116 F.3d

1549, 1558 (D.C. Cir. 1997) (holding that a plaintiff alleging constructive discharge must show

that the “employer deliberately made working conditions intolerable and drove the employee

out” of the position). “The mere existence of workplace discrimination is insufficient to make




                                                 13
out a constructive discharge claim.” Veitch v. England, 471 F.3d 124, 130 (D.C. Cir. 2006).

Rather, constructive discharge “requires a finding of discrimination and the existence of certain

‘aggravating factors’” that would force a reasonable employee to resign. Id. (quoting Mungin,

116 F.3d at 1558); see also Greer v. Paulson, 505 F.3d 1306, 1320 (D.C. Cir. 2007) (affirming

summary judgment for the defendant on a constructive discharge claim because the plaintiff

“proffered no evidence of the requisite ‘aggravating factors’”); Hopkins v. Price Waterhouse,

825 F.2d 458, 476 (D.C. Cir. 1987) (noting that “the mere fact of discrimination, without more,

is insufficient to make out a claim of constructive discharge”), rev’d on other grounds, 490 U.S.

224 (1989); Clark v. Marsh, 665 F.2d 1168, 1173 (D.C. Cir. 1981) (observing that “case law

does indicate a general reluctance to predicate a finding of constructive discharge upon the fact

of discrimination”).

       As previously noted, the plaintiff alleges that the defendant forced him to resign “when it

continued to present him with false evaluations from 2000 through 2004.” Pl.’s Mot. to

Supplement Compl., Ex. 1 (Proposed Supplemental Compl.) ¶ 31. Although the defendant

contends that the plaintiff has not identified any “aggravating factors” that forced his resignation,

the plaintiff has alleged that these negative performance evaluations effectively precluded him

from any further advancement in his career. See id. ¶ 12; Pl.’s Reply at 4. This Circuit has held

that the denial of advancement opportunities may, under certain circumstances, create working

conditions so intolerable as to satisfy the “aggravating factors” requirement. See Hopkins, 825

F.2d at 473 (holding that an employer’s decision to deny the plaintiff partnership status, coupled

with its decision not to re-nominate her for partnership consideration, constituted an

“aggravating factor” because any reasonable employee in the plaintiff’s position would have

viewed these circumstances as “career-ending”); Clark, 665 F.2d at 1174 (holding that the




                                                 14
plaintiff’s subjection to “a continuous pattern of discriminatory treatment, encompassing

deprivation of opportunities for promotion, lateral transfer, and increased educational training,

existing over a period of several years” constituted “aggravating factors” supporting her

constructive discharge claim). Indeed, the Circuit has held that a plaintiff may establish the

existence of “aggravating factors” by demonstrating that the continuous denial of advancement

opportunities “essentially locked [the plaintiff] into a position from which she could apparently

obtain no relief.” Clark, 665 F.2d at 1174.

       Whether the plaintiff’s poor performance evaluations foreclosed the possibility of any

future advancement and signaled the end of his career with the defendant are matters that will

turn on the specific circumstances of this case. See id. The plaintiff cannot succeed on the claim

merely by showing working conditions that were unpleasant but objectively tolerable.3 See

Taylor v. Fed. Deposit Ins. Corp., 132 F.3d 753, 766 (D.C. Cir. 1997). Nor will the plaintiff

succeed based solely on his subjective belief that the performance evaluations were “career-

ending.” See Crenshaw v. Georgetown Univ., 23 F. Supp. 2d 11, 20 (D.D.C. 1998) (noting that

the plaintiff’s “subjective belief that her tenure has become intolerable is insufficient to support a

claim for constructive discharge”). At this stage, however, the sole question before the court is

whether the plaintiff’s allegations state a plausible claim for constructive discharge. See Iqbal,

3
        The defendant argues that the plaintiff’s retirement e-mail, which is attached as Exhibit 1 to the
        defendant’s opposition, indicates that he resigned to pursue another opportunity and not because
        he was forced out. See Def.’s Opp’n at 4 & Ex. 1. Indeed, this Circuit has noted that a
        constructive discharge “does not occur when an employee leaves an unpleasant but objectively
        tolerable job because alternatives have become more attractive.” Taylor v. Fed. Deposit Ins.
        Corp., 132 F.3d 753, 766 (D.C. Cir. 1997). Although the court will consider this argument upon
        the defendant’s motion for summary judgment, the court may not take the plaintiff’s retirement e-
        mail into account in considering the futility of the plaintiff’s claim because the court would then
        be relying on matters outside the pleadings. See Holy Land Found. for Relief & Dev. v. Ashcroft,
        333 F.3d 156, 165 (D.C. Cir. 2003) (holding that the district court abused its discretion in
        considering matters outside the pleadings in resolving a motion to dismiss); Smith v. Corrections
        Corp. of Am., Inc., 2009 WL 4849600, at *6 n.2 (D.D.C. Dec. 16, 2009) (noting that “the Court
        generally is precluded from considering matters outside the pleadings on a motion to dismiss”).


                                                   15
129 S. Ct. at 1949. Under this standard, the court cannot conclude that allowing the plaintiff to

supplement his complaint with his proposed constructive discharge claim would be futile.

         3. The Defendant Will Not be Prejudiced by Permitting Supplementation

       Lastly, the court is unmoved by the defendant’s assertion that permitting the plaintiff to

supplement his complaint would cause it significant prejudice. See Def.’s Opp’n at 10-11. As

previously discussed, the plaintiff’s proposed supplemental claims represent a continuation of

claims asserted in the plaintiff’s complaint. See supra Part III.A.2.a. Indeed, in the “Comments”

section of the 2004 performance evaluation, the plaintiff expressly advised the defendant that

that he considered the performance evaluation to be another manifestation of “the continuous

retaliatory performance management program assessments that [he had] received since filing an

EEO complaint against the Federal Reserve.” Pl.’s Mot. to Supplement Compl., Ex. 4 at 6. The

plaintiff reiterated his claim that the 2004 performance evaluation was retaliatory in his August

2005 opposition to the defendant’s first motion for summary judgment. See Pl.’s Opp’n to Def.’s

1st Mot. for Summ. J. at 38. In a declaration filed by the plaintiff in support of that opposition,

the plaintiff stated that he believed that he “was forced to retire from the Board because of the

ongoing retaliatory actions taken against [him]. It became obvious that [he] would never have a

successful career at the Board because of [his] EEO complaints.” Id., Ex. 24 ¶ 31. Thus, the

defendant was aware as early as August 2005, if not earlier, of the allegations that the plaintiff

seeks to add to his complaint.

       Furthermore, given that the court dismissed the claims premised on the plaintiff’s

performance evaluations in December 2005, see Order (Dec. 13, 2005), the plaintiff can hardly

be faulted for waiting until the Circuit’s reversal of that ruling before moving to add these

claims, which grow out of the same evaluations. Although the defendant complains that some




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witnesses may have moved on to other employment or forgotten facts relevant to these new

causes of action, the court does not believe that these issues, which are present in all litigation,

warrant denial of the plaintiff’s motion for leave to supplement. And although the defendant

notes that it may not have retained all documents relevant to the plaintiff’s claims, this matter

may be dealt with in a subsequent motion for spoliation and hardly justifies barring the plaintiff

from asserting his claims. Accordingly, the court concludes that any prejudice suffered by the

defendant does not warrant denial of the plaintiff’s motion to amend.

       In sum, the court concludes that the plaintiff’s proposed claims are not futile and that

permitting the plaintiff to supplement his complaint will not significantly prejudice the

defendant. Given that leave to supplement should be freely granted, the court grants the

plaintiff’s motion. See Hall, 437 F.3d at 100.

  B. The Court Denies Without Prejudice the Plaintiff’s Rule 56(f) Motion for Discovery

       The plaintiff seeks discovery regarding his retaliation claims concerning his performance

evaluations from 2000 to 2004 pursuant to Federal Rule of Civil Procedure 56(f). Pl.’s Mot. for

Discovery at 3. The plaintiff asserts that to date, there has been no discovery with respect to any

of the plaintiff’s performance evaluations. Id. This lack of discovery, the plaintiff argues,

undermines his ability to respond to the defendant’s anticipated motion for summary judgment.

Id. The defendant responds that the plaintiff’s Rule 56(f) motion is premature because although

it intends to move for summary judgment on the plaintiff’s claims regarding his performance

evaluations, it currently has no motion for summary judgment pending. Def.’s Opp’n at 11-12.

The plaintiff offers no reply to the defendant’s assertion that his motion for discovery is

premature. See generally Pl.’s Reply.




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       Rule 56(f) authorizes discovery if a party opposing a motion for summary judgment

“cannot present facts essential to justify its opposition.” FED. R. CIV. P. 56(f). The rule “is

intended to prevent railroading ‘a non-moving party through a premature motion for summary

judgment before the non-moving party has had the opportunity to make full discovery.’”

Graham v. Mukasey, 608 F. Supp. 2d 50, 53 (D.D.C. 2009) (quoting Berliner Corcoran & Rowe

LLP v. Orian, 563 F. Supp. 2d 250, 253 (D.D.C. 2008)). To succeed on a Rule 56(f) motion, the

nonmoving party must state “concretely” by affidavit why additional discovery is needed to

defeat summary judgment. See Messina v. Krakower, 439 F.3d 755, 762 (D.C. Cir. 2006) (citing

Strang v. U.S. Arms Control & Disarmament Agency, 864 F.2d 859, 861 (D.C. Cir. 1989));

Graham, 608 F. Supp. 2d at 53 (noting that “plaintiffs must specifically explain what their

proposed discovery would likely reveal and why that revelation would advance the plaintiffs’

case”) (citing Hotel & Rest. Employees Union, Local 25 v. Att’y Gen., 804 F.2d 1256, 1269

(D.C. Cir. 1986)), vacated on other grounds, 808 F.2d 847 (D.C. Cir. 1987).

       Because the defendant has not moved for summary judgment, the plaintiff’s Rule 56(f)

motion is premature. See FED. R. CIV. P. 56(f). Accordingly, the court denies the plaintiff’s

motion without prejudice. The defendant, however, has indicated that it intends to file a renewed

summary judgment motion within forty-five days of the resolution of the plaintiff’s motions for

leave to supplement the complaint and motion for discovery. See Joint Status Report (June 12,

2009) at 2. Upon the filing of such a motion, the plaintiff may renew his request for discovery

pursuant to Rule 56(f).




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                                     IV. CONCLUSION

       For the foregoing reasons, the court grants the plaintiff’s motion for leave to supplement

his complaint and denies without prejudice the plaintiff’s motion for discovery. An Order

consistent with this Memorandum Opinion is separately and contemporaneously issued this 15th

day of February, 2010.



                                                            RICARDO M. URBINA
                                                           United States District Judge




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