Mitchell v. Barr ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RODRICK L. MITCHELL, :
:
Plaintiff, : Civil Action No.: 20-3083 (RC)
:
v. : Re Document Nos.: 13, 18, 19
:
MERRICK GARLAND, et al., :
:
Defendants. :
MEMORANDUM OPINION
GRANTING PLAINTIFF’S MOTION FOR FED. R. CIV. P. 56(D) RELIEF AND GRANTING IN PART
AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS OR FOR SUMMARY JUDGMENT
I. INTRODUCTION
Rodrick Mitchell alleges that a supervisor removed him from a desirable position at the
Federal Bureau of Prisons based on his race. When Mitchell complained about the
discriminatory environment he faced, another official allegedly retaliated against him by marking
him absent from work. Defendants the Attorney General and the Bureau of Prisons respond to
Mitchell’s Title VII claims with evidence to suggest that Mitchell was reassigned not because of
his race, but because of an ethical lapse. They also say that he was marked absent only because
he failed to timely request leave, and they move for summary judgment. But because Mitchell
has not yet had sufficient opportunity to obtain evidence of his own to counter this version of
events, the Court grants his motion for relief under Federal Rule of Civil Procedure 56(d) and
denies the summary judgment motion as premature. Defendants also move to dismiss for failure
to state a claim, Fed. R. Civ. P. 12(b)(6), but based solely on the allegations in the complaint and
reasonable inferences drawn in Mitchell’s favor, Mitchell has plausibly alleged Title VII
discrimination and retaliation claims. The Court denies Defendants’ motion to dismiss, except
insofar as it relates to the Bureau of Prisons, which is not a proper defendant in a Title VII
action.
II. BACKGROUND
A little over a year before his retirement from a twenty-eight-year career with the Federal
Bureau of Prisons (“BOP”), plaintiff Rodrick Mitchell found himself entangled in a
discrimination dispute. Compl. ¶ 7, ECF No. 2; Pl.’s Mem. Supp. Opp’n Defs.’ Mot. Dismiss or
for Summ. J. and Pl.’s Mot. Fed. R. Civ. P. 56(d) Relief at 6, ECF No. 18-1 (“Opp’n”).
Eventually, Mitchell filed a Complaint in this Court, in which he alleged that he spent the bulk of
his career, from 1992 to 2018, as a Telecommunications Specialist at the GS-13 level. Compl. ¶
7. One of his duties in this position was to work as BOP’s Contracting Officer Representative
(“COR”), for BOP’s Land Mobile Radio systems program, which involved procurement of
communication devices for BOP facilities. Id. ¶ 8. Mitchell did not get along with his ultimate
supervisor, Facilities Management Branch Chief Ponciano Rangel, III. Rangel, a “Mexican-
American,” mistreated Mitchell, an “African American,” in a variety of ways, including by
telling Mitchell he did not trust him, speaking to him disrespectfully, denying him training
opportunities, claiming that his reports were inaccurate, canceling his work travel plans on short
notice, and belittling him in front of co-workers. Id. ¶¶ 6, 9–10. “[S]everal times” between 2014
and 2018, Rangel told Mitchell he wanted to remove him as the COR for Land Mobile Radio
systems. Id. ¶ 9.
Mitchell complained about Rangel’s behavior to the BOP Ombudsman, but to no avail—
the Ombudsman did not even speak with Rangel about the complaint. Id. ¶ 11. So, at some
point “[p]rior to August of 2018,” Mitchell told Rangel “that he intended to file an Equal
Opportunity complaint against him.” Id. ¶ 12. Things still did not improve for Mitchell, and in
2
fact, they got worse: On August 16, 2018, Mitchell found out that Rangel had arranged for him
to be removed as the COR for the Land Mobile Radio account and replaced him with William
Lee, a “Native American Male.” Id. ¶¶ 13–14. Nobody explained why. Id. ¶ 14. And it was not
as if others were facing similar reshuffling. Steven Tompkins, a “Caucasian Male” GS-13
Telecommunications Specialist who also worked under Rangel, never heard that Rangel wished
him removed from his position and did not receive the same criticism or scrutiny that Mitchell
did. Id. ¶ 15.
A few months passed before Mitchell’s work-related troubles flared up again. Mitchell’s
immediate supervisor Seth Norman was furloughed during the January 2019 government
shutdown, so Theresa Ideo, a “Caucasian Female,” temporarily supervised Mitchell. Id. ¶ 16.
On January 14, 2019, the BOP’s offices were closed because of bad weather. Id. ¶ 17. That
morning, Mitchell submitted a request to use “annual work leave” to take the day off; he did not
work remotely that day. But Ideo denied the request and marked Mitchell as Absent Without
Leave (“AWOL”), which meant that Mitchell did not receive pay for the eight-hour day. Id.
Ideo then tried to mark Mitchell AWOL again, even though Mitchell had notified her in advance
that he would be taking sick leave. Id. ¶ 19.
Mitchell unsuccessfully complained about these events before BOP’s Equal Employment
Opportunity Office and the Equal Employment Opportunity Commission. Id. ¶ 5. Then he sued
the Attorney General1 and the BOP itself in this Court. In Count I, he alleges that his
supervisors’ actions amounted to unlawful discrimination on account of his race, in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Id. ¶¶ 20–28. In Count II,
1
William Barr was the Attorney General at the time, but his successor Merrick Garland is
automatically substituted for Barr as a defendant. Fed. R. Civ. P. 25(d).
3
Mitchell alleges that his removal as the COR for Land Mobile Radio, Ideo’s marking him as
AWOL, and Ideo’s attempt to mark him AWOL a second time were all acts of retaliation for his
various discrimination complaints, and therefore also violated Title VII. Id. ¶¶ 29–32. Mitchell
seeks $250,000 in compensatory damages. Id. at 7.
Defendants Garland and the BOP (the “Defendants”) responded with a motion to dismiss
for failure to state a claim, or, in the alternative, for summary judgment in their favor. Defs.’
Mot. Dismiss or for Summ. J., ECF No. 13. They attached documentary evidence in an effort to
show that Mitchell’s Complaint tells only half the story. See Defs.’ Statement of Material Facts
Not in Genuine Dispute, ECF No. 13-2 (“SUMF”). They claim that BOP removed Mitchell as
the COR for Land Mobile Radio not because of his race, but rather because of an ethics
violation. Mitchell was working on a solicitation of bids to replace the radios at a BOP detention
Center in Puerto Rico, and Motorola was competing for the contract. Id. at 4. While in Puerto
Rico for a site visit, Mitchell went out to dinner with Cindy Hare, a sales representative for
Motorola, on August 13, 2018. Id. A Facebook post documenting this outing came to the
attention of BOP authorities. Catherine Scott, the Chief of the BOP Acquisitions branch,
determined that the dinner created “an appearance of impropriety and a possible violation of the
Procurement Integrity Act.” Id. (citation omitted). She informed Rangel and referred the
incident to BOP’s Office of Internal Affairs. Id. Thus, on August 15, Rangel directed Norman
to remove Mitchell as the COR for Land Mobile Radio and to reassign him to be the COR for the
Private Branch program. Id. at 4–5. According to Defendants, Norman was planning on
reassigning Mitchell away from Land Mobile Radio anyway, because he wanted to “reorganiz[e]
the work of each staff member.” Id. at 5. The Internal Affairs Investigation determined that
Michell had indeed violated BOP policy for procurement officials. Id.
4
Defendants claim to have an explanation for the AWOL determination too. Mitchell,
along with other staff, had been told at a May 2018 meeting, in a December 2018 email, and in a
January 8, 2019 email that he had to request any unscheduled leave before the start of his
scheduled shift. Id. at 5–6. During the shutdown, as the January email made clear, this meant
that Mitchell was required to request any leave from Ideo in advance of his shift. Id. On January
14, the Office of Personnel Management notified employees who, like Mitchell, were eligible for
telework that they would have to either telework or use leave while offices were closed due to
inclement weather. Mitchell did not telework on January 14, nor did he request leave in advance
(or at all), so Ideo marked him AWOL. Id. at 7. The same, as it happened, was true of
Tompkins. Id.
Defendants are not the only ones who seek to rely on circumstances beyond those
mentioned in the Complaint. In his Statement of Disputed Facts filed in response to Defendants’
motion to dismiss or for summary judgment, Mitchell for the first time notes that he filed a
complaint in August 2018 about a sexual relationship between Rangel and Ideo. Opp’n at 2.
According to Mitchell, this complaint, too, was a reason for his retaliatory removal as COR for
Land Mobile Radio. Id. at 15. In addition to arguing that both Rule 12(b)(6) dismissal and
summary judgment are inappropriate on the merits, Mitchell asserts that summary judgment is
premature and requests the opportunity to engage in discovery pursuant to Federal Rule of Civil
Procedure 56(d). Opp’n at 1.2
2
Mitchell failed to serve Defendants within ninety days of filing his Complaint, and the
Court ordered him to show cause why the case should not be dismissed pursuant to Federal Rule
of Civil Procedure 4(m) and Local Civil Rule 83.23 for failure to prosecute. Order to Show
Cause, ECF No. 5. Mitchell then served Defendants and explained that the delay was the result
of staff turnover at his counsel’s firm. Pl.’s Mot. Good Cause to Defer Entry of Dismissal, ECF
No. 11. Mitchell has been diligent in prosecuting his case since, and Defendants do not press an
5
III. LEGAL STANDARDS
The Federal Rules of Civil Procedure require that a complaint contain “a short and plain
statement of the claim” sufficient to give the defendant fair notice of the claim and the grounds
upon which it rests. Fed. R. Civ. P. 8(a)(2); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007)
(per curiam). A motion to dismiss under Federal Rule of Civil Procedure Rule 12(b)(6) “tests
the legal sufficiency of a complaint” under that standard; it asks whether the plaintiff has
properly stated a claim. 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)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This means that a plaintiff’s
factual allegations “must be enough to raise a right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly,
550 U.S. at 555–56 (citations omitted). “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements,” are therefore insufficient to withstand a motion to
dismiss. Iqbal, 556 U.S. at 678. A court need not accept a plaintiff’s legal conclusions as true,
see id., nor must a court presume the veracity of legal conclusions that are couched as factual
allegations, see Twombly, 550 U.S. at 555. However, a court considering a motion to dismiss
must accept the complaint’s factual allegations as true and construe them liberally in the
plaintiff’s favor. See, e.g., United States v. Philip Morris, Inc., 116 F. Supp. 2d 131, 135 (D.D.C.
2000). Put another way, the court must “draw all reasonable inferences” in favor of the plaintiff.
DC2NY, Inc. v. Acad. Express, LLC, 485 F. Supp. 3d 113, 118 (D.D.C. 2020).
untimely service argument. Therefore, the Court will not dismiss the case for failure to
prosecute.
6
Meanwhile, a party is entitled to summary judgment only when it can “show[] that there
is no genuine dispute as to any material fact” and that it “is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). Material facts are those that could affect the outcome of the
litigation, and genuine disputes about material facts exist when the evidence would allow a
reasonable jury to return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A court assessing a summary judgment motion must avoid credibility
determinations and draw all inferences in the nonmovant’s favor. Id. at 255. But conclusory
assertions without any evidentiary support do not establish a genuine issue for trial. See Greene
v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999).
Finally, a court may deny or defer consideration of a motion for summary judgment if the
“nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts
essential to justify its opposition.” Fed R. Civ. P. 56(d).
IV. ANALYSIS
As the above recitation of the motion-to-dismiss and summary-judgment standards
suggests, identification of the set of facts relevant to the Court’s analysis depends on whether the
Court treats Defendants’ motion as a motion to dismiss or a motion for summary judgment. As
the Court will explain in Part IV.B, Mitchell has shown that he is entitled to take discovery under
Federal Rule of Civil Procedure 56(d), so entertaining a motion for summary judgment would be
premature at this stage. The Court dismisses Defendants’ motion for summary judgment without
prejudice; defendant Garland may file a new summary judgment motion once the parties have
engaged in discovery. Therefore, the Court will address the merits only of the motion to dismiss,
which means it will consider only the allegations in the complaint, will accept them as true, and
7
will construe them liberally in Mitchell’s favor.3 See, e.g., Robb v. Vilsack, No. CV 20-0929,
2021 WL 3036796, at *1 n.2 (D.D.C. July 19, 2021).
At the outset, the Court grants Defendants’ motion to dismiss insofar as it relates to the
BOP. For government employees, Title VII provides a cause of action only against the head of
the relevant department—in this case, Attorney General Garland. 42 U.S.C. § 2000e-16(c);
Hackley v. Roudebush, 520 F.2d 108, 115 n.17 (D.C. Cir. 1975); Farrar v. Wilkie, No. CV 18-
1585, 2019 WL 3037869, at *2 (D.D.C. July 11, 2019). Therefore, the BOP is not a proper
defendant, and all claims against it must be dismissed. However, Mitchell has sufficiently
pleaded Title VII discrimination and retaliation claims against Garland.
A. Mitchell’s Complaint States Title VII Claims for Discrimination and Retaliation
Title VII provides that “all personnel actions affecting employees or applicants for
employment” at federal agencies like the BOP “shall be made free from any discrimination based
on race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a). Though the familiar
Title VII provision prohibiting discrimination by private sector employers is worded somewhat
differently, courts interpret the private and federal provisions in lockstep. See Brown v. Brody,
199 F.3d 446, 453 (D.C. Cir. 1999) (explaining that the private-sector provision “makes it an
unlawful employment practice to discriminate on the basis of ‘race, color, religion, sex, or
national origin’ in hiring decisions, in compensation, terms and conditions of employment, and
3
Defendants say that the Court may also consider formal documents filed during
Mitchell’s administrative proceedings in connection with the motion to dismiss, but the cases
they provide involve the distinct context of a court considering such documents in order to
determine whether a Title VII plaintiff has exhausted administrative remedies. See Vasser v.
McDonald, 228 F. Supp. 3d 1, 10 (D.D.C. 2016) (noting that courts should exercise an
“‘abundance of caution’ before relying on materials outside the pleadings” (citation omitted));
Ndondji v. InterPark Inc., 768 F. Supp. 2d 263, 277 (D.D.C. 2011). Defendants do not raise an
exhaustion argument. Nor, in any event, do they point to any administrative documents in
support of their motion-to-dismiss arguments.
8
in classifying employees in a way that would ‘adversely affect’ their status as employees”)
(quoting 42 U.S.C. § 2000e-16(a)), abrogated on other grounds by Burlington N. & Santa Fe Ry.
Co. v. White, 548 U.S. 53, 67 (2006); Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007). A
similar state of affairs pertains to Title VII’s other central restriction on employer conduct, its
anti-retaliation provision. See 42 U.S.C. § 2000e-3(a) (making it unlawful for any employer to
discriminate against an employee or applicant “because he has opposed any practice made an
unlawful employment practice by [Title VII], or because he has made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title
VII]”). The D.C. Circuit has routinely applied Title VII’s anti-retaliation rule to federal
employers, see, e.g., Cruz v. McAleenan, 931 F.3d 1186, 1193–94 (D.C. Cir. 2019), and the
Supreme Court has “assume[d] without deciding that it is unlawful for a federal agency to
retaliate against a civil servant for complaining of discrimination,” Green v. Brennan, 578 U.S.
547, 553 n.1 (2016). Mitchell brings both discrimination and retaliation claims. Compl. ¶¶ 20–
36.
1. Mitchell Plausibly Alleges Adverse Employment Actions
To state claims both of Title VII discrimination and Title VII retaliation, Mitchell must
plead that he suffered an adverse employment action. See Mulkerin v. Bunch, No. 19-CV-03850,
2021 WL 3771806, at *2 (D.D.C. Aug. 25, 2021); Laughlin v. Holder, 923 F. Supp. 2d 204, 221
(D.D.C. 2013); Craig v. District of Columbia, 881 F. Supp. 2d 26, 34 (D.D.C. 2012).
Defendants argue that he has not done so. Mem. Supp. Defs.’ Mot. Dismiss or for Summ. J. at
14–15, ECF No. 13-1 (“Mem.”). For a discrimination claim, an adverse employment action is
one that is on the order of “a significant change in employment status, such as hiring, firing,
failing to promote, reassignment with significantly different responsibilities, or a decision
9
causing significant change in benefits.” Douglas v. Donovan, 559 F.3d 549, 552 (D.C. Cir.
2009) (citation omitted and cleaned up). “[M]ere idiosyncracies of personal preference are not
sufficient”; nor are “[p]urely subjective injuries, such as dissatisfaction with a reassignment, or
public humiliation or loss of reputation.” Forkkio v. Powell, 306 F.3d 1127, 1130–31 (D.C. Cir.
2002) (citations omitted and cleaned up). To qualify as an adverse employment action in the
context of a discrimination claim, the action must impose “materially adverse consequences,” or
put differently, “objectively tangible harm.”4 Id. at 1131.
A broader set of employer actions can be sufficiently adverse to support a retaliation
claim. A retaliation plaintiff “must show that a reasonable employee would have found the
challenged action materially adverse, which in this context means it well might have dissuaded a
reasonable worker from making or supporting a charge of discrimination.” Burlington, 548 U.S.
at 68 (citation omitted and cleaned up). With all reasonable inferences drawn in Mitchell’s
favor, the principal BOP actions his complaint challenges—removing him as the COR for the
4
The en banc D.C. Circuit is currently reconsidering whether an unwanted job transfer
must inflict “objectively tangible harm” in order to qualify as an adverse employment action.
See Williams v. Red Coats, Inc., No. 20-CV-00571, 2021 WL 4476770, at *9 n.15 (D.D.C. Sept.
30, 2021) (citing Chambers v. District of Columbia, No. 19-7098, 2021 WL 1784792, at *1
(D.C. Cir. May 5, 2021). Two members of the Chambers panel suggested that an unwanted
transfer, or a denial of a desired transfer, must simply be related to the compensation, terms,
conditions, or privileges of employment in order to ground a Title VII discrimination claim.
Chambers v. District of Columbia, 988 F.3d 497, 504 (D.C. Cir. 2021) (Tatel, J., and Ginsburg,
J., concurring). Defendants note this position and argue that Mitchell’s removal as the COR for
Land Mobile Radio was a “transfer of work responsibilities,” rather than “a lateral transfer or
another personnel action that placed [Mitchell] in another position.” Mem. at 13 n.2. But
Defendants do not cite any authority in support of this distinction or otherwise tie it to the text of
Title VII, and at least one other court in this district has suggested that the Chambers discussion
applies both to formal position transfers and to forced reassignments of duties. Williams, 2021
WL 4476770, at *9 n.15 (noting the Chambers en banc grant and observing that while the suit
before it “involve[d] a reassignment rather than a transfer, the applicable standards on this issue
may soon be in flux”). Indeed, the D.C. Circuit applies the objectively tangible harm standard in
both transfer-of-position cases, Brown, 199 F.3d at 457, and cases involving changes in job
responsibilities, Forkkio, 306 F.3d at 1132.
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Land Mobile Radio program and marking him as AWOL on January 14, 2019—suffice to plead
that he suffered an adverse employment action under both the discrimination and retaliation
standards.
Discrimination. The Complaint alleges that Mitchell “was removed from his position as
COR for Land Mobile Radio systems,” Compl. ¶ 13; it does not tell us what, if any, duties
replaced this assignment. It is at least “plausible,” Iqbal, 556 U.S at 678 (citation omitted), that
being removed from a position responsible for handling contracts relating to a particular BOP
program, see Compl. ¶¶ 8, 13, would “affect[] future employment opportunities,” Ortiz-Diaz v.
U.S. Dep’t of Hous. & Urb. Dev., Off. of Inspector Gen., 867 F.3d 70, 74 (D.C. Cir. 2017).
Moreover, it is reasonable to infer that “remov[al],” Compl. ¶ 13, from such a senior position
would leave Mitchell with “significantly different,” and less desirable, responsibilities, and that it
would have consequences more significant than the exclusion from management meetings and
emails held not sufficiently adverse in Forkkio. Mitchell also alleges that he “suffer[ed] lost
earnings and earning capacity” because of Defendants’ actions. Compl. ¶ 25; cf. Chien v.
Sullivan, 313 F. Supp. 3d 1, 14–15 (D.D.C. 2018) (holding that the plaintiff had plausibly alleged
that she suffered materially adverse consequences based on denials of temporary duty
assignments in part because she alleged that the denials “result[ed] in a loss of monetary
benefits”) (alteration in original).
The January 14 designation of Mitchell as AWOL, too, is a plausible allegation of an
adverse employment action. This allegedly undeserved designation deprived Mitchell of eight
hours of pay. Compl. ¶ 17. Defendants do not argue that this action was not materially adverse,
and they are right not to do so: “a diminution in pay or benefits can suffice even when the
employer later provides back pay.” Greer v. Paulson, 505 F.3d 1306, 1317 (D.C. Cir. 2007)
11
(holding that an AWOL designation was an adverse employment action). The AWOL
designation took money out of Mitchell’s paycheck, Compl. ¶ 32, thereby causing him
“objectively tangible harm,” Forkkio, 306 F.3d at 1131. Though he may not have lost an
especially large sum, Mitchell has plausibly pleaded the material adverse action element of his
discrimination claim. See Yazzie v. Nat’l Org. for Women, No. CV 19-3845, 2021 WL 1209347,
at *10 (D.D.C. Mar. 30, 2021) (“[A]t the motion to dismiss stage, the plaintiff need not detail
exactly how she will prove her case at trial or even what evidence she will offer to fend off a
motion for summary judgment.”).
Retaliation. For largely the same reasons, Mitchell’s allegations about his removal as the
COR for Land Mobile Radio and his January 14 AWOL designation sufficiently plead the
adverse action element of his retaliation claim. See Compl. ¶ 32 (invoking both of these setbacks
as bases for the retaliation claim). Each of these could plausibly have “dissuaded a reasonable
worker from making or supporting a charge of discrimination.” Burlington, 548 U.S. at 68(citation omitted and cleaned up); cf. Behrens v. Tillerson, 264 F. Supp. 3d 273, 279–80 (D.D.C.
2017) (denying motion to dismiss retaliation claim because the compliant “plausibly suggest[ed]
that [the plaintiff], in essence, was relegated to lower-rung responsibilities than what she was
entitled to pursuant to the terms of her job description” and noting that the merit of the
defendant’s argument that the plaintiff “was merely dissatisfied with the legitimate work
allotments made by her supervisors” would have to “be decided following discovery”); Craig v.
District of Columbia, 881 F. Supp. 2d 26, 34 (D.D.C. 2012) (holding that an allegation that a
police officer’s reassignment to a region that was less desirable, in part because it was further
from her home, was sufficient to plead an adverse action for a retaliation claim and emphasizing
that “[w]hether or not the defendants’ acts will ultimately give rise to liability is a fact-sensitive
12
question that should be reserved for a later stage of the litigation.”); Taylor v. Solis, 571 F.3d
1313, 1321 (D.C. Cir. 2009) (noting that a temporary AWOL designation supported a retaliation
claim because “the temporary deprivation of wages counts as a materially adverse action”);
Chien, 313 F. Supp. 3d at 16 (holding that it was plausible that placing a plaintiff “on AWOL
status after retroactively changing her work hours and authorizing her pay to be deducted for
[nine] hours that were pre-approved for sick leave . . . could have dissuaded a reasonable worker
from making a charge of discrimination”).
2. Mitchell Plausibly Alleges Causation for His Retaliation Claim
In addition to arguing that Mitchell’s Complaint does not plausibly allege an adverse
action, Defendants contend that it falls short of pleading a second element of the retaliation
claim, a causal link between Mitchell’s protected activity and the adverse employment actions he
suffered. Mem. at 14. One way to show causation is to demonstrate “temporal proximity
between an employer’s knowledge of protected activity and an adverse employment action,”
Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273–74 (2001) (per curiam), and both parties
direct their arguments to this method of pleading causation, Mem. at 14; Opp’n at 15. For
temporal proximity to give rise to a causal inference, the protected activity and the adverse action
must be “very close” in time. Clark Cnty. Sch. Dist., 532 U.S. at 273 (citation omitted).
Just how close remains something of an open question. Some courts in this district have
suggested that periods as longs four months might permit an inference of causation, see Badwal
v. Bd. of Trustees of Univ. of D.C., 139 F. Supp. 3d 295, 318–19 (D.D.C. 2015) (“In this Circuit,
the alleged retaliatory acts must have occurred within three or four months of the protected
activity to establish causation by temporal proximity”), while others have indicated that gaps as
short as two months do not, see Jones v. D.C. Water & Sewer Auth., 922 F. Supp. 2d 37, 42
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(D.D.C. 2013) (“Although neither the Supreme Court nor the D.C. Circuit has established a
bright-line three-month rule, this Circuit has generally found that a two- or three-month gap
between the protected activity and the adverse employment action does not establish the
temporal proximity needed to prove causation.” (cleaned up) (citing Hamilton v. Geithner, 666
F.3d 1344, 1357–58 (D.C. Cir. 2012) and Taylor, 571 F.3d at 1322 (D.C. Cir. 2009))).
Both the facts of the particular case and the stage of the litigation seem to affect the
answer. At the summary judgment stage, courts have expressly held that periods of five months
and greater cannot establish causation. Tressler v. Nat’l R.R. Passenger Corp., 09-CV-2027,
2012 WL 5990035, at *11 (D.D.C. Nov. 30, 2012) (five months); Drielak v. Pruitt, 890 F.3d
297, 300–01 (D.C. Cir. 2018) (six months); see also Taylor, 571 F.3d at 1322 (holding that a two
and one-half month period was insufficient “on the record here”). However, at the motion-to-
dismiss stage, some courts have been more permissive. See Holodnak v. Serv. Emps. Int’l
Union, No. CV 20-3250, 2021 WL 5578675, at *5 (D.D.C. Nov. 30, 2021) (“Given that there is
at least some support in the case law for a four-month gap, dismissing the [Family and Medical
Leave Act] retaliation claim is not justified at this time.”); Haile-Iyanu v. Cent. Parking Sys. of
Va., Inc., No. CIV.A.06 2171, 2007 WL 1954325, at *5 (D.D.C. July 5, 2007) (eleven-month
gap between medical leave and termination plausibly alleged causation in a Family and Medical
Leave Act retaliation case).
Whatever the precise outer bound of a permissible temporal proximity inference at the
Rule 12(b)(6) stage, Mitchell’s Complaint plausibly pleads causation based on the temporal
proximity between some of his protected activities and BOP’s adverse actions combined with his
alleged general pattern of retaliatory conduct. “Prior to August of 2018,” Mitchell allegedly
complained to Rangel about his “continued abusive and harassing behavior” and informed him
14
that he intended to file a formal complaint with BOP’s Equal Employment Opportunity office.5
Compl. ¶ 12. The Complaint does not tell us exactly when “[p]rior to August” Mitchell warned
Rangel that he would be filing with the EEO. But construing this allegation liberally, it is
reasonable to infer that he would not have issued his warning all that far in advance of his actual
filing of the EEO complaint in September. See Compl. ¶ 31. Thus, it is reasonable to infer that
his removal as the COR for Land Mobile Radio at Rangel’s direction on August 16, Comp. ¶ 13,
came “very soon” after he alerted Rangel of his plan to contact the EEO. Clark Cnty. Sch. Dist.,
532 U.S. at 273 (citation omitted).
Though a lengthier period passed between Mitchell’s protected activities and the AWOL
designation, the Complaint still gives rise to a reasonable inference of causation regarding this
alleged act of retaliation. Mitchell filed a complaint with the EEOC on September 26, 2018.
Compl. ¶ 5. Just over three-and-a-half months later, on January 14, Ideo marked Mitchell
AWOL. Id. ¶ 13. Importantly, construed liberally, Mitchell’s Complaint need “not rely on
5
Defendants do not suggest that this, or any of Mitchell’s other alleged protected actions,
were not activities protected by Title VII’s anti-retaliation provision. See 42 U.S.C. § 2000e-3(a)
(making it illegal for any employer to retaliate against an employee “because he has opposed any
practice made an unlawful employment practice by [Title VII], or because he has made a charge,
testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under
[Title VII]”). In any case, “Title VII’s protections are not limited to individuals who file formal
complaints, but extend to those who voice informal complaints as well.” Furcron v. Mail Ctrs.
Plus, LLC, 843 F.3d 1295, 1311 (11th Cir. 2016). The Court does not address whether
Mitchell’s alleged August 2018 complaint about a sexual relationship between Rangel and Ideo
related to an unlawful employment practice under Title VII. See Belov v. World Wildlife Fund,
Inc., No. CV 21-1529, 2021 WL 4773236, at *5 (D.D.C. Oct. 13, 2021) (“Not every complaint
entitles its author to protection from retaliation under Title VII . . . because the plaintiff must
demonstrate that he complained to the employer of some unlawful discrimination based on his
membership in a protected class.” (citation omitted and cleaned up) (emphasis in original)); Poff
v. Oklahoma ex rel. Oklahoma Dep’t of Mental Health & Substance Abuse Servs., 683 F. App’x
691, 703 (10th Cir. 2017) (holding that a plaintiff could not state a Title VII retaliation claim
because she alleged “no facts that would raise an inference that her opposition was related to
anything more than the bare existence of a consensual sexual relationship, which is not
prohibited conduct under Title VII”).
15
temporal proximity alone to support” an inference of causation. See Yazzie, 2021 WL 1209347at *15. Mitchell alleges “a series of protected activities and reprisals over a period of many
months,” id.: Rangel told Mitchell he wished to remove him as the COR for Land Mobile Radio,
then Mitchell complained to the BOP’s Ombudsman about Rangel’s disrespectful and belittling
treatment, then Mitchell told Rangel he would file with the EEOC, then Rangel directed
Mitchell’s removal as the COR for Land Mobile Radio, then Mitchell filed with the EEOC, then
Ideo marked him AWOL, and then Ideo attempted to mark Mitchell AWOL a second time even
though he had notified her in advance that he would be taking sick leave to attend an
appointment. Compl. ¶¶ 5, 9–13, 17, 19. Drawing all reasonable inferences in Mitchell’s favor,
this series of repeated alleged complaints and reprisals, together with the three-and-a-half-month
period between the EEOC complaint and the initial AWOL designation, is sufficient to plead
causation. See Hamilton v. Geithner, 666 F.3d 1344, 1357–58 (D.C. Cir. 2012) (emphasizing
that “the specific facts of each case,” rather than bright-line time-elapsed rules, must “determine
whether inferring causation is appropriate”); cf. Yazzie, 2021 WL 1209347 at *14–15 (holding
that in light of an alleged “series of protected activities and reprisals over a period of many
months, during which time [plaintiff] was progressively isolated from coworkers and
subordinates, stripped of authority and power, and ultimately fired,” gaps of “two months or
more” between some of the protected activities and retaliatory acts did not defeat a retaliation
claim under 42 U.S.C. § 1981 (internal quotation marks omitted)).
In their motion to dismiss, Defendants challenge only the adverse action and causation
elements of Mitchell’s Title VII claims. Because Mitchell has plausibly alleged the adverse
action elements of his discrimination and retaliation claims and the causation element of his
16
retaliation claim, the Court denies Defendants’ motion to dismiss the discrimination and
retaliation claims against Garland.
B. Adjudication of Defendants’ Motion for Summary Judgment is Premature Because
Mitchell Has Shown That He Needs to Take Discovery
As Defendants appear to acknowledge, their remaining set of arguments—that the BOP
had legitimate, non-discriminatory, and non-retaliatory reasons for the COR reassignment and
the AWOL designation—relies on a legal framework that involves consideration of evidence and
is appropriate only at the summary judgment stage. Mem. at 16–19 (relying on the “burden-
shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)” and
citing record evidence not incorporated or referenced in the Complaint); see Easaw v. Newport,
253 F. Supp. 3d 22, 26 (D.D.C. 2017) (noting that the McDonnell Douglas framework “generally
applies at summary judgment”).
“[A] party may file a motion for summary judgment at any time until 30 days after the
close of all discovery.” Fed R. Civ. P. 56(b). However, if “a nonmovant shows by affidavit or
declaration that, for specified reasons, it cannot present facts essential to justify its opposition,
the court may” deny the motion and allow time to take discovery. Fed. R. Civ. P. 56(d). The
D.C. Circuit has held that to obtain Rule 56(d) relief, a party defending against summary
judgment must “(1) outline the particular facts . . . [it] intends to discover and describe why those
facts are necessary to the litigation; (2) explain why the party could not produce those facts in
opposition to the pending summary-judgment motion; and (3) show that the information is in fact
discoverable.” Jeffries v. Barr, 965 F.3d 843, 855 (D.C. Cir. 2020) (cleaned up) (citing
Convertino v. U.S. Dep’t of Just., 684 F.3d 93, 102 (D.C. Cir. 2012)).
Defendants moved for summary judgment before either party had the opportunity to take
discovery in this case. In response to Defendants’ summary judgment motion, Mitchell moved
17
for Rule 56(d) relief and filed an affidavit explaining that summary judgment was premature
because he needed discovery on several topics. See Aff. of Rodrick L. Mitchell, ECF No. 18-2
(“Rule 56(d) Aff.”). Defendants claim that this affidavit does not comply with the first and
second Convertino elements, but the Court disagrees and holds that Mitchell is entitled to Rule
56(d) relief. Defs.’ Reply Supp. Mot. Dismiss or for Summ. J. at 14–18, ECF No. 21 (“Reply”).
Therefore, the Court will deny Defendants’ motion for summary judgment without prejudice to
the filing of a new summary judgment motion after all parties have had sufficient opportunity to
take discovery.
The D.C. Circuit elaborated on the first Convertino element in Haynes v. D.C. Water &
Sewer Authority:
[The first element requires the party seeking Rule 56(d) relief] to file an affidavit
or declaration explaining, with sufficient particularity, what specific facts are
required to oppose the motion and why those facts are necessary to the litigation.
What counts as “sufficient particularity” will necessarily be a case-specific inquiry,
dependent on the nature of the claims and the existing record. But the affidavits we
have approved of in prior cases have two things in common. First, they discuss the
specific facts that must be discovered to support a plaintiff’s legal theory, rather
than recite broad categories of information—even if broad categories of
information will ultimately be requested to uncover those specific facts. Second,
they explain why the required information could create a dispute of material fact,
even when its ultimate import is unclear, and connect the information sought to the
theory of relief advanced.
924 F.3d 519, 532 (D.C. Cir. 2019) (emphasis in original). Three of the discovery requests in
Mitchell’s affidavit meet this standard. These also meet the second Convertino element, for they
each relate to information within Defendants’ possession that Mitchell could not produce without
discovery.6
6
Mitchell did have the opportunity to receive at least some interrogatory and document
discovery during his administrative proceeding before the EEOC, and BOP made a 2348-page
production. Reply Ex. B, ECF No. 21-3. However, the record is murky on whether the
administrative discovery is coextensive with the discovery Mitchell needs in order to oppose
summary judgment in this Court. Moreover, Defendants do not cite any authority for their
18
First, Mitchell explains that he needs to present facts to prove that his salary and
“working conditions” changed when he was moved from the Land Mobile Radio program to the
Private Branch Program, “factors that are important in supporting the fact that [he] suffered
adverse job actions concerning [his] retaliation claim.” Rule 56(d) Aff. ¶ 7. As the Court has
explained, in order to succeed on both his Title VII discrimination claim and his Title VII
retaliation claim, Mitchell will have to prove that he suffered an “adverse action” at the hands of
his employer, an inquiry that turns in part on whether his reassignment from Land Mobile Radio
to the Private Branch program left him with “significantly different” responsibilities. See
Forkkio, 306 F.3d at 1131 (citation omitted). To be sure, as Defendants point out, Mitchell
should not need discovery in order to learn about any changes in his own salary. Reply at 17.
But his request is not limited to salary information; he also claims that Defendants have
documents relevant to the “working conditions” at Land Mobile Radio and at the Private Branch
program. Rule 56(d) Aff. ¶ 7. These documents “could create a dispute of material fact” on the
adverse action elements of Mitchell’s discrimination and retaliation claims, Haynes, 924 F.3d at
532 (emphasis in original), for example, by showing that Mitchell did not hold the same
“substantive and supervisory responsibilities he had before” the reassignment, Ramos v.
Garland, No. CV 13-0328, 2021 WL 1345865, at *11 (D.D.C. Apr. 9, 2021) (quoting Forkkio v.
Tanoue, 131 F. Supp. 2d 36, 40 (D.D.C. 2001), aff’d, Forkkio, 306 F.3d 1127). Defendants have
not offered any evidence to show that Mitchell’s responsibilities remained substantially similar.
Cf. Smith v. United States, 843 F.3d 509, 513 (D.C. Cir. 2016) (holding that a party was not
entitled to Rule 56(d) relief because the information it sought could not create a genuine dispute
suggestion that discovery taken in an administrative proceeding or investigation necessarily
renders federal-court discovery unnecessary. Reply at 16.
19
of material fact in light of other “undisputed facts” found in the record). Mitchell might be able
to testify about any change in responsibilities based on his own perceptions, but he is entitled to
attempt a stronger case by seeking formal duty descriptions or evidence of how the BOP treats
the two roles for advancement purposes.
Second, Mitchell points to Laurence Faytaren and Dustin Martin, two non-African-
American BOP employees who joined Mitchell at the Puerto Rico dinner with Motorola but were
not disciplined in the same manner he was. Rule 56(d) Aff. ¶ 5. Mitchell explains that he wants
to “present facts to prove that [he] was treated differently than Mr. Faytaren and Mr. Martin in
[his] removal from the Land Mobile Radio program due to [his] race.” Id. Mitchell avers that:
Defendants possess documents containing factual information regarding [his]
removal and the disciplinary action Mr. Faytaren and Mr. Martin suffered that
would support [his] claim. Numerous employees of Defendants also possess
information regarding [his] removal from the Land Mobile Radio program and the
disciplinary action Mr. Faytaren and Mr. Martin suffered that would support [his]
claim.
Id.; see also Opp’n at 3 (“Plaintiff should be entitled to discovery to attack the veracity of
Defendants’ contention that Plaintiff was re-assigned merely because of his alleged violation of
Defendants’ policy and the disciplinary action taken against Mr. Faytaren and Mr. Martin for
engaging in the same allegedly improper conduct as Plaintiff.”); id. at 12 (“[N]either [Faytaren
nor Martin] appear to have been removed from the LMR program as Plaintiff was, despite
engaging in the same inappropriate conduct.”).7
Evidence about disparate punishment of Mitchell relative to Faytaren and Martin could
certainly create a genuine dispute of material fact. See Haynes, 924 F.3d at 532. Under the
McDonnell-Douglas framework, because Defendants have identified a facially legitimate, non-
7
Courts “regularly look[] beyond a litigant’s declaration to his briefing in analyzing
whether the Convertino elements have been satisfied.” Jeffries, 865 F.3d at 855.
20
discriminatory and non-retaliatory reason for the COR reassignment—the ethical issues the
Puerto Rico dinner presented—Mitchell must produce evidence sufficient to permit a reasonable
juror to conclude that the Puerto Rico dinner was not the actual reason for his reassignment (or
that, even if it was, he received a disparate punishment because of his race). See Walker v.
Johnson, 798 F.3d 1085, 1092 (D.C. Cir. 2015). One way Mitchell could meet this summary-
judgment burden is to show that BOP’s “stated reasons were pretextual” by “citing [BOP’s]
better treatment of similarly situated employees outside [his] protected group.” Id. Evidence
about Faytaren’s and Martin’s Puerto Rico punishments could therefore be crucial to Mitchell’s
case. His Rule 56(d) affidavit does far more than, as Defendants suggest, “merely invok[e] the
term ‘comparators.’” Reply at 15. It establishes the need for information about specific
comparators who allegedly received a lesser sanction for a similar offense. See Cruz, 931 F.3d
1186 at 1192 (reversing denial of a Rule 56(d) request for discovery related to lenient treatment
of comparators because “evidence that white employees, or male employees, were disciplined
less severely for the sort of behavior for which [the plaintiff] was disciplined could create a
dispute of material fact about whether [the employer’s] justification was a pretext for
discrimination.”).
Defendants put the cart before the horse when they argue that evidence regarding
Faytaren and Martin is not material because they are not, as a matter of law, similarly situated to
Mitchell. Reply at 10, 17. To support this point, Defendants attempt to show via record
evidence that Faytaren’s and Martin’s positions in the Land Mobile Radio program were
different from Mitchell’s and that their Puerto Rico punishment was determined by officials
different than those who decided how to treat Mitchell. Id. at 10–11 (citing affidavits from
Faytaren and Martin). But the question relevant to Mitchell’s Rule 56(d) motion is whether it is
21
yet appropriate to reach the summary-judgment stage and consider this sort of record evidence.
Because Mitchell has shown a need for discovery, it is not. Defendants’ evidence-based
argument may ultimately carry the day, but its adjudication must wait for a fully developed
factual record. Cf. Montgomery v. Omnisec Int’l Sec. Servs., Inc., 961 F. Supp. 2d 178, 183–84
(D.D.C. 2013) (holding it inappropriate to require a high level of specificity regarding
comparators at the motion-to-dismiss stage as opposed to the summary-judgment stage).
Moreover, the D.C. Circuit has described similarity of job duties and whether the plaintiff
and comparators share the same supervisor not as necessary conditions for comparator relevance,
but rather as “[f]actors that bear on whether someone is an appropriate comparator.” Wheeler v.
Georgetown Univ. Hosp., 812 F.3d 1109, 1115 (D.C. Cir. 2016); see also id. at 1118 (the “same
supervisor criterion” is not an “inflexible requirement”) (quoting Louzon v. Ford Motor Co., 718
F.3d 556, 563–64 (6th Cir. 2013)). And though Defendants’ evidence does seem to establish that
there were some differences between Faytaren and Martin’s duties and Mitchell’s, it falls short
of establishing that their duties differed in a way that necessarily would have justified a disparate
penalty for the Puerto Rico dinner. Reply at 11 (noting that neither Faytaren nor Martin was the
COR for Land Mobile Radio and that Martin was not assigned to the evaluation panel for the
ongoing bid solicitation); see Banks v. District of Columbia, 498 F. Supp. 2d 228, 234–35
(D.D.C. 2007) (the comparator need not “be identical” to the plaintiff so long as she has “similar
employment responsibilities”). At least on this underdeveloped record, Defendants have not
established that Faytaren and Martin cannot be appropriate comparators as a matter of law. See
Wheeler, 812 F.3d at 1116 (“[D]etermining whether two employees are similarly situated is
ordinarily a question of fact for the jury.”).
22
Third, Mitchell requests discovery to show that the policy behind Defendants’ asserted
legitimate reason for marking him AWOL on January 14—which required employees to request
leave in advance, rather than on the day of the desired leave, see SUMF at 5–6—was
inconsistently enforced. Mitchell contends that despite this policy, he and other BOP employees
“were able to take leave before putting in their request for leave.” Rule 56(d) Aff. ¶ 8. If true,
such inconsistency could help establish pretext. Walker, 798 F.3d at 1092 (noting that a plaintiff
may support an inference of pretext “by citing the employer’s . . . inconsistent or dishonest
explanations [or] its deviation from established procedures or criteria”). Mitchell wishes to
obtain documents that Defendants allegedly possess regarding “acceptable leave requests,” as
well as information from other employees pertaining to leave requests. Rule 56(d) Aff. ¶ 8.
Similarly, he claims that Defendants and their employees possess documents regarding whether
Ideo’s decision to mark Mitchell AWOL was “appropriate[].” Id. ¶ 11. It is “self-evident,” cf.
Ikossi v. Dep’t of Navy, 516 F.3d 1037, 1045 (D.C. Cir. 2008), that without discovery, Mitchell
cannot access the kind of system-wide documents necessary to reveal whether BOP enforced its
advance-notification policy generally or only selectively.8
Of course, some items within Mitchell’s affidavit do not even relate to a need for
discovery, and others might be too general to support a Rule 56(d) motion on their own. Rule
56(d) Aff. ¶ 12 (“I retired from working at the Federal Bureau of Prisons on December 31, 2019.
I retired because I felt dejected and did not feel like a valued employee.”); id. ¶ 6 (“Because I
have not yet had the opportunity to engage in discovery, I cannot present facts to prove that I was
treated differently in my removal from the Land Mobile Radio program due to my race, an
8
The fact that BOP had to reiterate the rule so frequently in communications to
employees leads one to question whether employees regularly ignored the rule.
23
important element in my claim for race discrimination. Defendants possess documents
containing factual information regarding the reasons for my removal from the Land Mobile
Radio program that would support my claim. Numerous employees of Defendants also possess
information regarding my removal from the Land Mobile Radio program that would support my
claim.”). But Mitchell has established a need for discovery regarding whether his transfer from
the Land Mobile Radio program to the Private Branch program significantly altered his duties
and career prospects; the nature of the BOP’s treatment of other employees who attended the
dinner with Motorola in Puerto Rico; and whether the BOP actually enforced its stated policy of
requiring leave requests in advance.9 The facts adduced by both sides during discovery may well
reveal that Defendants had legitimate, non-discriminatory, non-retaliatory reasons for
reassigning Mitchell away from Land Mobile Radio and for marking him AWOL—the Court
expresses no view on the matter. The dispositive point at this stage is that Mitchell has
demonstrated a need to take discovery and fully develop the record on this issue. The Court
grants Mitchell’s motion for Rule 56(d) relief and denies Defendants’ motion for summary
judgment as premature. Attorney General Garland may bring another summary-judgment
motion, if he wishes, after the parties have had a sufficient opportunity to take discovery.
V. CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss, Or, In the Alternative, for
Summary Judgment (ECF No. 13) is GRANTED IN PART AND DENIED IN PART.
Plaintiff’s Motion for Relief Pursuant to Fed. R. Civ. P. 56(d) (ECF Nos. 18, 19) is GRANTED.
An order consistent with this Memorandum Opinion is separately and contemporaneously issued.
9
The Court does not mean to suggest that discovery will be limited to these topics.
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Dated: 03/09/2022 RUDOLPH CONTRERAS
United States District Judge
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