                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
_____________________________
                               )
MARCUS L. MCDANIEL,            )
                               )
          Plaintiff,           )
                               )
          v.                   )    Civil Action No. 12-723 (RWR)
                               )
TOM J. VILSACK,                )
                               )
          Defendant.           )
_____________________________ )

                        MEMORANDUM ORDER

     Plaintiff Marcus McDaniel, an African-American man formerly

employed by the U.S. Department of Agriculture (“USDA”) from

August 2008 to July 2009 as a Safety & Occupational Health

Manager, filed a one-count complaint against the Secretary of

Agriculture, alleging that McDaniel’s supervisors discriminated

against him because of his race and sex in violation of Title VII

of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., by

harassing him and terminating his employment.   The Secretary has

moved to dismiss or for summary judgment, arguing that McDaniel

failed to exhaust his administrative remedies for most of the

allegedly harassing conduct noted in the complaint, and that

other than the termination, the conduct alleged did not rise to

the level of an adverse employment action.   Because the Secretary

does not challenge that the one-count complaint states a

plausible claim of discriminatory termination, the defendant’s

dispositive motion will be denied.
                                - 2 -

      In August 2008, McDaniel joined the USDA’s National

Resources Conservation Service (“NRCS”) as its Safety and

Occupational Health Manager, subject to a one-year probationary

period.   Compl. ¶¶ 4, 7.   McDaniel was eventually supervised by a

woman named Eloris Speight.   McDaniel’s complaint states a litany

of complaints about Speight - - that Speight actively disliked

McDaniel, that Speight did not approve of having McDaniel’s

position being placed in the Human Resources department, that

Speight frequently pointed out to McDaniel that she could fire

him at any time and for any reason during his probationary

period, that Speight did not provide feedback to McDaniel and

falsely accused him of failing to send her work product, and that

Speight transferred responsibility away from McDaniel.    Id. ¶¶ 9-

10.

      On July 31, 2009, while McDaniel was still in his

probationary period, his employment was terminated for

unsatisfactory conduct in performing his job.    Compl. ¶¶ 12-13;

Def.’s Mem. in Supp. of Mot. to Dismiss or for Summ. J. (“Def.’s

Mem.”), Ex. 1.   That September, McDaniel contacted the NRCS Civil

Rights Division to initiate formal counseling.   The counseling

was unsuccessful and in October 2009, McDaniel was notified of

his right to file a formal EEO complaint.   Def.’s Mem., Ex. 2.

In November 2009, McDaniel filed a formal EEO complaint with the

USDA.   The USDA sent McDaniel a letter in May 2010 accepting his
                                 - 3 -

complaint, identifying as issues to be investigated 1) McDaniel’s

July 2009 termination; 2) McDaniel being forced to perform tasks

from August 2008 through July 2009 without receiving feedback;

and 3) Speight intimidating McDaniel from early 2009 through

July 2009 by repeatedly reminding him that he could be removed

from his position without just cause during the probationary

period.   Id., Ex. 3.   In February 2012, an administrative law

judge ruled for the USDA on McDaniel’s complaint.     Id., Ex. 5

at 9.

     McDaniel filed his one-count complaint in this action in

May 2012.   The introductory paragraph of McDaniel’s complaint

alleges that the defendant discriminated against him based on his

race and sex by “harassing him, by preventing him from performing

his duties and responsibilities . . . and, ultimately, by

terminating his employment[.]”    Compl. ¶ 1.   In the portion of

the complaint labeled “Prayer for Relief,” the complaint states

that “defendant . . .    discriminated against plaintiff based on

his race and sex by (i) harassing him on the job (ii) preventing

him from performing his duties and responsibilities, and (iii)

terminating his employment with USDA and removing him from the

Federal Service effective July 31, 2009[.]”     Id. ¶ 16.

     The Secretary has moved for dismissal under Federal Rule of

Civil Procedure 12(b)(6), or in the alternative for summary

judgment under Rule 56, regarding all of McDaniel’s claims other
                                    - 4 -

than his claim that he was terminated because of his race and

sex.       Def.’s Mem. at 12.   The Secretary argues that McDaniel

failed to exhaust his administrative remedies for claims other

than his claim based on his termination, and that any claim of

hostile work environment would fail as a matter of law.         Def.’s

Reply at 1.

       McDaniel’s response to the Secretary’s motion states that

McDaniel “brought this lawsuit because NRCS management unlawfully

terminated his employment and removed him from the federal

service based on his race and sex.”         Pl.’s Resp. at 1.   McDaniel

explains that the other incidents, such as the purported

harassment and interference with his ability to perform his job,

were offered as “background evidence” to support his properly-

exhausted claim about his termination.         Id.; see also Mamantov v.

Jackson, 898 F. Supp. 2d 121, 127 (D.D.C. 2012) (stating that

plaintiffs can, in some circumstances, use prior unexhausted acts

as background evidence in support of timely claims).

       Therefore, the Secretary’s motion is moot.       McDaniel has a

one-count complaint alleging that his termination was the result

of race and sex discrimination, and the Secretary does not attack

that cause of action.1      Accordingly, it is hereby


       1
       The Secretary acknowledges that his motion seeks a partial
dismissal of plaintiff’s count or partial summary judgment on it.
In general, a motion to dismiss under Rule 12(b)(6) is not an
appropriate device to use to eliminate a portion of a claim.
SocialApps, LLC v. Zynga, Inc., 4:11-CV-04910, 2012 WL 381216, at
                              - 5 -

     ORDERED that the Secretary’s motion [8] to dismiss, or in

the alternative for summary judgment be, and hereby is, DENIED as

moot.

     SIGNED this 30th day of May, 2013.


                                     /s/
                               RICHARD W. ROBERTS
                               United States District Judge




*2 (N.D. Cal. Feb. 6, 2012) (a “motion under Rule 12(b)(6) may
not be used to challenge only certain allegations within a
claim”) (citing Thompson v. Paul, 657 F. Supp. 2d 1113, 1129 (D.
Ariz. 2009) (stating that “[t]he Court is unaware, however, of
any situation in which a Rule 12(b)(6) motion may be used to
strike certain allegations in support of a claim, where the
underlying claim itself is not challenged”)). And, ordinarily,
“summary judgment is premature unless all parties have ‘had a
full opportunity to conduct discovery.’” Convertino v. U.S.
Dep’t of Justice, 684 F.3d 93, 99 (D.C. Cir. 2012) (quoting
Anderson v. Liberty Lobby, 477 U.S. 242, 257 (1986)).
