Ho v. Barr

• Court: District Court, District of Columbia
• Decided: September 17, 2022
• Docket: Civil Action No. 2020-0912
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

TOMMY HO,

Plaintiff, Civ. Action No. 20-912 (EGS) v.

MERRICK B. GARLAND, in his official capacity as Attorney General of the United States, U.S. Department of Justice,1

Defendant.

MEMORANDUM OPINION

I. Introduction

Plaintiff Tommy Ho (“Mr. Ho” or “Plaintiff”) brings this

lawsuit against Merrick B. Garland, in his official capacity as

Attorney General of the United States, U.S. Department of

Justice (the “Government” or “Defendant”), alleging race

discrimination and retaliation in violation of Title VII of the

Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et

seq., after Defendant reassigned Mr. Ho to the Joint Support

Operations Center (“JSOC”) and denied his transfer to the Las

Vegas Field Office (“LVFO”). See generally Compl., ECF No. 1.

1 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the current Attorney General of the United States, Merrick Garland, is substituted as Defendant for the former Attorney General of the United States, William Barr. See Fed. R. Civ. P. 25(d).

1 Pending before the Court is Defendant’s Motion to Dismiss

or, in the Alternative, Motion for Summary Judgment. See Def.’s

Mot. Dismiss or, in the Alternative, Mot. Summ. J., ECF No. 13;

Mem. P. & A. Def.’s Mot. Dismiss or, in the Alternative, Mot.

Summ. J. (“Def.’s Mot.”), ECF No. 13-1. Mr. Ho opposes the

motion and moves for discovery pursuant to Federal Rule of Civil

Procedure 56(d). See Pl.’s Opp’n Def.’s Mot. Dismiss or, in the

Alternative, Mot. Summ. J., ECF No. 16; Mem. P. & A. Pl.’s Opp’n

Def.’s Mot. Dismiss or, in the Alternative, Mot. Summ. J.

(“Pl.’s Opp’n”), ECF No. 16-1; Pl.’s Mot. Under Rule 56(d), ECF

No. 17; Mem. P. & A. Pl.’s Mot. Under Rule 56(d) (“Pl.’s Mot.”),

ECF No. 17-1.

Upon consideration of the motions, oppositions, replies

thereto, and the applicable law, the Court GRANTS IN PART and

DENIES IN PART Defendant’s Motion to Dismiss or, in the

Alternative, for Summary Judgment, ECF No. 13; and GRANTS IN

PART and DENIES IN PART Mr. Ho’s Motion Under Rule 56(d), ECF

No. 17.

II. Background

A. Factual

Mr. Ho has worked for the Bureau of Alcohol, Tobacco,

Firearms and Explosives (“ATF”) since April 1999. Compl., ECF

No. 1 at 3 ¶ 10. In August 2012, he accepted a position within

2 the Special Operations Division (“SOD”), Technical Operations

Branch in the Unmanned Aircraft Systems (“UAS”) Program at ATF

Headquarters (“HQ”). Id. He had committed to that position for

three years, see id.; but the SOD suspended the UAS Program in

June 2014, id. at 3 ¶ 11. Mr. Ho was then involuntarily

transferred to the Washington Field Division (“WFD”). Id. While

at the WFD, he held the position of Senior Operations Officer

(“SOO”). Id. at 3 ¶ 12.

1. Mr. Ho’s Time at the WFD

While he worked at the WFD, Mr. Ho was supervised by

Special Agent in Charge (“SAC”) Smith (“SAC Smith” or “Mr.

Smith”). Id. at 4 ¶ 15. Soon after he was involuntarily

transferred to the WFD, Mr. Ho met with his supervisor. Id. at 4

¶ 16. Mr. Smith spoke with Mr. Ho about his job responsibilities

as a Senior Operations Officer. See T. Ho Dep. Tr. at 86:2-12.3.

At some point, Mr. Smith turned the conversation to discuss his

experience supervising another agent, Special Agent (“SA”) Casey

Xiong (“SA Xiong” or “Mr. Xiong”). See Compl., ECF No. 1 at 4 ¶

16. Mr. Smith described Mr. Xiong “as good at administrative

duties, but not as assertive as other agents.” Id. Both Mr.

Xiong and Mr. Ho are first-generation Asian immigrants who speak

English as a second language. Id. Mr. Ho understood that Mr.

3 Smith “made this comparison between SA Xiong and Plaintiff based

on their race, reflecting a stereotypical view of Asians.” Id.

Several months later, in December 2014, Mr. Smith invited

Mr. Ho and two other agents to join his family for dinner on

Christmas Eve. Id. at 4 ¶ 17. Mr. Ho declined this invitation.

Id. Mr. Smith commented on Mr. Ho’s decision to not attend this

dinner at least twice in the following weeks, stating “Tommy did

not want to go to a [B]lack man’s house.” Id. Mr. Smith made

these remarks in front of Mr. Ho and other WFD staff. Id.

2. Mr. Ho’s Involuntary Transfer

On April 30, 2015, Mr. Ho was involuntarily transferred

again—this time, to a GS-1811 SA/Project Officer position in the

JSOC, in the Office of Strategic Intelligence and Information

(“OSII”)—effective May 17, 2015. Id. His new position was

“clerical in nature,” and his “primary responsibilities included

answering phones and conducting history checks.” Id. at 3 ¶ 13.

For these reasons, Mr. Ho understood the JSOC to be “a

punishment position” that one would not desire if he sought “to

advance and gain experience in the agency.” Id.

The transfer process began when Assistant Director (“AD”)

of Field Operations Michael Gleysteen (“AD Gleysteen” or “Mr.

Gleysteen”) and Deputy Assistant Director (“DAD”) Marino Vidoli

(“DAD Vidoli” or “Mr. Vidoli”) contacted Acting DAD Essam Rabadi

4 (“DAD Rabadi” or “Mr. Rabadi”) to talk to the WFD about

backfilling positions at the JSOC. Id. at 3 ¶ 14. Mr. Rabadi

then contacted Mr. Smith “to provide him with the names of two

‘candidates that fit the criteria for a transfer to the JSOC.’”

Id. at 3-4 ¶ 14.

On April 22, 2015, Mr. Smith informed Mr. Ho about this

direction from HQ. Id. at 4 ¶ 15. Mr. Smith claimed that HQ

asked him “to select an agent who was assigned to the position

of Division Tactical Advisor, Intel Officer, or Senior

Operations Officer, or who was the subject of a pending internal

affairs investigation” for transfer to the JSOC. Id. Seven

agents, including Mr. Ho, met the criteria for transfer. Id.

According to AD McDermond (“Mr. McDermond”), agents are

involuntarily transferred to the JSOC only “if there are no

voluntary candidates for the position.” Id. at 5 ¶ 22. At the

time that Mr. Ho was transferred, one agent—SA Michael Jacobi

(“SA Jacobi” or “Mr. Jacobi”)—had volunteered to move to the

JSOC. Id.

Additionally, agents who could be impeached while

testifying in a criminal trial or who are unable to testify due

to credibility concerns (i.e., Giglio issues) are transferred to

HQ, including to the JSOC, until their conduct and credibility

issues are resolved. See id. Mr. Vidoli identified Brent Price

5 (“Mr. Price”) as a candidate for transfer to the JSOC on the

basis of this criteria. Id.

Mr. Smith forwarded one name—Mr. Ho—to HQ for transfer. Id.

at 4 ¶ 15. On or about April 30, 2015, Mr. Gleysteen signed the

selection memorandum transferring Mr. Ho to the JSOC. Id. at 5 ¶

20.

3. EEO Proceedings and Denied Transfer

On June 1, 2015, Mr. Ho filed an informal equal employment

opportunity (“EEO”) complaint alleging race discrimination and

reprisal. Id. at 5 ¶ 23.

On June 9, 2015, he met with his supervisors: Division

Chief of the Violent Crime Intelligence Division Kevin O’Keefe

(“Mr. O’Keefe”), Deputy Chief of the Criminal Intelligence

Division Jose Vazquez (“Mr. Vazquez”), and Branch Chief of the

JSOC Bryan Washington (“Mr. Washington”). Id. at 5-6 ¶ 24.

During this meeting, he requested information about his

reassignment to the JSOC. Id. He also discussed with his

supervisors another reassignment—this time to an office in the

San Francisco Field Division (“SFFD”). Id. at 6 ¶ 24. He

specifically mentioned that he would like to return to the LVFO.

Id. Mr. Ho was informed that this request would be discussed

among upper management. See id.

On June 17, 2015, EEO Specialist Brenda Bryant (“Ms.

Bryant”) conducted Plaintiff’s initial EEO interview. Id. at 6 ¶

6 25. In the days after this interview, Ms. Bryant contacted Mr.

Washington about the EEO complaint, informing him of Mr. Ho’s

claims and desired return to the LVFO. Id. at 6 ¶ 26. Mr.

Washington asked Ms. Bryant to direct all further questions

about Mr. Ho to Mr. O’Keefe. Id. Still, he communicated this

information to Mr. O’Keefe and Mr. Vazquez. Id. at 6 ¶ 27. Mr.

O’Keefe told Mr. Washington “to stand by and wait for further

instruction.” Id.

Ms. Bryant also contacted Mr. O’Keefe about the EEO

complaint, including the claims and requested relief. Id. at 6 ¶

28. Mr. O’Keefe told Ms. Bryant that he would discuss

reassigning Mr. Ho with Mr. McDermond, but they did not discuss

resolution of the EEO complaint. Id. Mr. O’Keefe then separately

notified Mr. Vazquez and Mr. Washington about the EEO complaint.

Id. at 6 ¶ 29. Mr. O’Keefe also contacted Mr. McDermond about

the same. Id.

Ms. Bryant conducted Mr. Ho’s final EEO interview on July

28, 2015. Id. at 6 ¶ 30.

On August 14, 2015, Mr. Ho filed a formal EEO complaint.

Id. at 6-7 ¶ 30. Ms. Bryant contacted Mr. O’Keefe in the

following days to inform him of the formal EEO complaint. Id. at

7 ¶ 31. Mr. O’Keefe then notified Mr. Vazquez and Mr.

Washington. Id. He then contacted Mr. McDermond, but he told the

AD that “Plaintiff was contemplating filing an EEO complaint”

7 and that “he was trying to help Plaintiff resolve the matter so

Plaintiff would not file a formal complaint.” Id. at 7 ¶ 32.

Mr. O’Keefe and Mr. McDermond met several times in the

coming days and discussed the status of Mr. Ho’s reassignment.

Id. at 7 ¶ 33. During one conversation, Mr. O’Keefe told Mr.

McDermond that Mr. Ho would be transferred to the San Jose Field

Office. Id.

Mr. Gleysteen informed DAD Luke Franey (“DAD Franey” or

“Mr. Franey”) of this transfer and asked for his help in the

process. See id. at 7 ¶ 34. Mr. O’Keefe told Mr. McDermond that

he would work with Mr. Franey and OSII Chief of Staff Ernest

Hickson (“Mr. Hickson”) to make the transfer. Id. at 7 ¶ 35. On

August 20, 2015, Mr. Franey told Mr. Hickson that Mr. Ho could

come to the San Jose Field Office and that Mr. Jacobi would

replace him at the JSOC. Id. at 7 ¶ 36.

Mr. Washington informed Mr. Ho of the reassignment that

same day. Id. at 7-8 ¶ 37. Mr. Ho immediately told Mr.

Washington that he could not go to a California field office

because his extensive firearms collection is prohibited in the

state. Id. at 8 ¶ 37. Mr. Washington discussed with Mr. O’Keefe,

who then contacted Mr. McDermond about the impossibility of a

San Jose Field Office transfer and the possibility of a LVFO

transfer. See id.

8 Mr. Franey agreed to pursue the LVFO transfer and informed

Mr. O’Keefe, who advised Mr. McDermond and Mr. Washington. Id.

at 8 ¶ 38. Mr. McDermond directed Mr. O’Keefe to continue with

the transfer. Id.

On August 21, 2015, Mr. Vazquez and Mr. Washington asked

Mr. Ho about the San Jose Field Office. Id. at 8 ¶ 40. Mr. Ho

gave them the response that he gave to Mr. Washington earlier.

See id.

Mr. Franey then contacted individuals at the SFFD about a

possible LVFO transfer. See id. ¶ 41. No one had any objection

to this proposal. See id. SFFD leadership agreed to the

reassignment. See id. at 8-9 ¶ 42. On direction, Mr. Franey

instructed the Field Operations Field Management Staff (“FMS”)

to initiate the Permanent Change of Station (“PCS”) paperwork

for Mr. Ho. See id. at 9 ¶ 43. Mr. Hickson then requested

coordination such that Mr. Ho would go to the LVFO and Mr.

Jacobi would go to the JSOC on the same dates. See id.; see also

id. at 9 ¶ 46 (“Plaintiff and SA Jacobi had the same report date

of November 29, 2015.”).

Angela Iaquinta (“Ms. Iaquinta”) was asked to prepare the

reassignment and selection memorandum for Mr. Ho, which she did

on or about August 24, 2015. Id. at 9 ¶¶ 43, 45. The PCS file

included: a selection notice with a PCS funding stamp, emails

about the above events, and a routing slip on the front of the

9 folder with initials and dates. See id. at 10 ¶ 48. She left the

PCS file with Mr. Gleysteen’s assistant, who then gave the

paperwork to Mr. Gleysteen. Id. at 9 ¶ 45. In the meantime, Mr.

Washington told Mr. Ho that his transfer to the LVFO had been

approved. Id. at 9 ¶ 44.

Mr. Gleysteen received Mr. Jacobi’s PCS file on August 24,

2015 and signed it on August 31, 2015. Id. at 9 ¶ 46. He signed

the transmittal slip on September 8, 2015. Id.

Although he had already approved PCS funding for Mr. Ho’s

reassignment to the SFFD and for Mr. Jacobi’s reassignment to

the JSOC, Mr. Gleysteen denied Mr. Ho’s reassignment. See id. at

9-10 at 47. Mr. Gleysteen also shredded Mr. Ho’s PCS file,

destroying the original and only copy of that paperwork. Id. at

10 ¶ 49.

Despite Mr. Gleysteen’s actions, Mr. Washington told Mr.

O’Keefe and Mr. Vazquez that Mr. Ho’s PCS file was awaiting

signature from Mr. Gleysteen. Id. at 10 ¶ 50. Several

individuals in leadership discussed the status of Mr. Ho’s

transfer, and Mr. Ho also asked Mr. Washington to confirm his

reporting date. See id. at 10 ¶ 51.

Ms. Iaquinta told Mr. Washington that the selection

memorandum had not been signed on September 10, 2015. Id. at 10

¶ 52. Mr. Washington and Mr. Vazquez each informed Mr. Ho that

his paperwork was awaiting signature. See id. at 10 ¶¶ 52-53.

10 In the following days, Mr. O’Keefe told Mr. McDermond that

the reassignment was stalled and asked whether the EEO complaint

was a factor. See id. at 11 ¶ 55. Mr. McDermond explained that

Mr. Ho’s reassignment “was tied to his EEO activity.” Id. Mr.

O’Keefe consulted with agency counsel and concluded that the EEO

complaint was the reason for the stalled reassignment. Id.

Agency counsel later informed Mr. McDermond that Mr.

Gleysteen had denied Mr. Ho’s reassignment to the LVFO. Id. at

11 ¶ 56. Mr. McDermond then talked to Mr. Gleysteen, who

informed him that “the only way he would authorize Plaintiff’s

move to the LVFO was if Plaintiff signed a settlement agreement

resolving his EEO complaint.” Id. at 11 ¶ 58.

Ms. Bryant contacted Mr. Ho about the possibility of

settlement on September 17, 2015. Id. at 11-12 ¶ 60. The next

day, she told Mr. Ho of Mr. Gleysteen’s “ultimatum.” Id. at 12 ¶

61. The Acting Deputy Chief of the EEO, Robyn Ferguson-Russ,

called Mr. Ho to tell him “that he would only be transferred to

the LVFO if he signed a settlement agreement and withdrew his

EEO complaint.” Id. at 12 ¶ 62.

On or about September 20, 2015, Mr. Jacobi’s transfer to

the JSOC was cancelled. Id. at 12 ¶ 63.

On or about September 25, 2015, agency counsel informed Mr.

O’Keefe and Mr. McDermond that Plaintiff was not willing to

settle his EEO complaint for a transfer to the LVFO. See id. at

11 12 ¶ 64. Mr. O’Keefe informed Mr. Vazquez and Mr. Washington,

and Mr. McDermond told Mr. Gleysteen. Id. No one informed Mr. Ho

that his transfer to the LVFO had been cancelled. Id. at 12 ¶

65.

B. Procedural

Mr. Ho filed this Complaint on April 6, 2020. See generally

Compl., ECF No. 1. On July 23, 2020, Defendant filed its Motion

to Dismiss or, in the Alternative, Motion for Summary Judgment.

See generally Def.’s Mot., ECF No. 13-1.

Plaintiff filed his Opposition to Defendant’s Motion to

Dismiss or, in the Alternative, Motion for Summary Judgment on

August 13, 2020. See generally Pl.’s Opp’n, ECF No. 16-1.

Plaintiff thereafter filed a Motion Under Rule 56(d). See

generally Pl.’s Mot. Under Rule 56(d), ECF No. 17.

Defendant filed its reply in support of the Motion to

Dismiss on September 3, 2020, see generally Def.’s Reply in

Supp. of Mot. Dismiss or, in the Alternative, Mot. Summ. J.

(“Def.’s Reply”), ECF No. 19; and its opposition to Plaintiff’s

Motion Under Rule 56(d) on September 10, 2020, see generally

Def.’s Opp’n Pl.’s Mot. Under Rule 56(d) (“Def.’s Opp’n”), ECF

No. 21. Plaintiff filed his final reply on September 17, 2020.

See generally Pl.’s Reply in Supp. of Mot. Under Rule 56(d)

(“Pl.’s Reply”), ECF No. 23.

The motions are ripe and ready for adjudication.

12 III. Standards of Review

A. Rule 12(b)(6) Motion to Dismiss

A motion to dismiss under Federal Rule of Civil Procedure

12(b)(6) tests the legal sufficiency of a complaint. Browning v.

Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A complaint must

contain “a short and plain statement of the claim showing that

the pleader is entitled to relief, in order to give the

defendant fair notice of what the . . . claim is and the grounds

upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007). While detailed factual allegations are not required,

a complaint must contain “sufficient factual matter . . . to

state a claim to relief that is plausible on its face.” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009).

When ruling on a Rule 12(b)(6) motion, the Court “may

consider only the facts alleged in the complaint, any documents

either attached to or incorporated in the complaint and matters

of which we may take judicial notice.” EEOC v. St. Francis

Xavier Parochial Sch., 117 F. 3d 621, 624 (D.C. Cir. 1997). In

so doing, the court must give the plaintiff the “benefit of all

inferences that can be derived from the facts alleged.” Kowal v.

MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).

“Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements” are not sufficient to

state a claim. Iqbal, 556 U.S. at 678.

13 B. Motions Styled as Motions to Dismiss Or, in the Alternative, for Summary Judgment in Employment Discrimination Cases Under Federal Rule of Civil Procedure 56, the movant’s

burden is to “show[] that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 250 (1986). However, “summary

judgment ordinarily ‘is proper only after the plaintiff has been

given adequate time for discovery.’” Americable Int’l, Inc. v.

Dep’t of Navy, 129 F.3d 1271, 1274 (D.C. Cir. 1997) (quoting

First Chicago Int’l v. United Exch. Co., 836 F.2d 1375, 1380

(D.C. Cir. 1988)). “This is largely because, when faced with a

motion for summary judgment, the non-movant must point to

evidence in support of his opposition, and evidence is typically

the province of discovery.” Tyson v. Brennan, 306 F. Supp. 3d

365 (D.D.C. 2017) (citing Rochon v. Lynch, 139 F. Supp. 3d 394,

401 (D.D.C. 2015)). “Moreover, where a defendant has moved for

summary judgment under Rule 56 as an alternative to dismissal

under Rule 12(b)(6), ‘the decision regarding whether or not to

treat a motion to dismiss as one for summary judgment is

committed to the sound discretion of the trial court[,] which

means that this Court need not necessarily accede to [the

defendant’s] request regarding how its motion should be

evaluated.’” Id. (quoting Ross v. U.S. Capitol Police, 195 F.

14 Supp. 3d 180, 192 (D.D.C. 2016)) (internal quotation marks and

citation omitted) (first alteration in original).

C. Rule 56(d) Motion for Discovery

Under Federal Rule of Civil Procedure 56(d), a non-moving

party may ask the court to stay the consideration of summary

judgment. A court may defer considering a motion for summary

judgment, deny the motion, or allow time for the non-movant to

take discovery if that party “shows by affidavit or declaration

that, for specified reasons, it cannot present facts essential

to justify its opposition.” Fed. R. Civ. P. 56(d). The criteria

of a Rule 56(d) declaration are that:

(1) It must outline the particular facts the non-movant intends to discover and describe why those facts are necessary to the litigation, (2) it must explain why the non- movant could not produce the facts in opposition to the motion for summary judgment; and (3) it must show the information is in fact discoverable.

U.S. ex rel. Folliard v. Gov’t Acquisitions, Inc., 764 F.3d 19,

26–27 (D.C. Cir. 2014) (citing Convertino v. DOJ, 684 F.3d 93,

99-100 (D.C. Cir. 2012)). A Rule 56(d) motion for discovery

“should be granted almost as a matter of course unless the non-

moving party has not diligently pursued discovery of the

evidence.” Convertino, 684 F.3d at 99.

15 IV. Analysis

A. The Court Can Consider Portions of the Administrative Record Without Converting the Rule 12(b)(6) Motion to Dismiss to a Motion for Summary Judgment

“While a court may not consider ‘matters outside the

pleadings’ in evaluating a motion to dismiss under Rule

12(b)(6) without converting the motion to one for summary

judgment under Rule 56, see Fed. R. Civ. P. 12(d); documents

that are referenced in, or an integral part of, the complaint

are deemed not ‘outside the pleadings.’” Peters v. Dist. of

Columbia, 873 F. Supp. 2d 158, 179 (D.D.C. 2012) (quoting Mead

v. Lindlaw, 839 F.Supp.2d 66, 70 (D.D.C. 2012) (“In deciding

a Rule 12(b)(6) motion, a court may consider the facts alleged

in the complaint, documents attached as exhibits or incorporated

by reference in the complaint, or documents upon which the

plaintiff’s complaint necessarily relies even if the document is

produced not by [the parties].”) (internal quotations and

citations omitted)). “[A] document need not be mentioned by name

to be considered ‘referred to’ or ‘incorporated by reference’

into the complaint.” Strumsky v. Wash. Post Co., 842 F. Supp. 2d

215, 218 (D.D.C. 2012) (internal citation omitted). “In ruling

on a motion to dismiss, the Court may consider not only the

facts alleged in the complaint, but also documents attached to

or incorporated by reference in the complaint and documents

attached to a motion to dismiss for which no party contests

16 authenticity.” Demissie v. Starbucks Corp. Off. & Headquarters,

19 F. Supp. 3d 321, 324 (D.D.C. 2014). Here, Mr. Ho does not

dispute Defendant’s argument that his “complaint relies heavily—

almost exclusively—on the administrative record in this matter.”

Compare Def.’s Mot., ECF No. 13-1 at 22 n.6, with Pl.’s Opp’n,

ECF No. 16-1. Nor does he contest the authenticity of the

documents to which Defendant refers. See generally Pl.’s Opp’n,

ECF No. 16-1. Accordingly, the Court will consider the

administrative proceeding documents cited in this Memorandum

Opinion without converting the Motion to Dismiss to a Motion for

Summary Judgment.2

B. Plaintiff Exhausted His Administrative Remedies

Defendant first argues that the Court should dismiss the

Complaint because Mr. Ho failed to exhaust his administrative

remedies. See Def.’s Mot., ECF No. 13-1 at 26-28; Def.’s Reply,

ECF No. 19 at 7-10. Citing persuasive authority, the Government

argues that Title VII complainants must participate in good

faith to exhaust their administrative remedies and that Mr. Ho

failed to do so because he rejected ATF’s settlement offer—even

though that offer would have granted his requested relief to be

reassigned to the LVFO. See Def.’s Mot., ECF No. 13-1 at 26-27

2 As discussed herein, Mr. Ho is entitled to certain additional discovery on his discrimination claim under Fed. R. Civ. P. 56(f).

17 (citing Wrenn v. Secretary, Dep’t of Veterans Affairs, 918 F.2d

1073, 1078 (2d Cir. 1990)). Mr. Ho does not dispute that Title

VII imposes a good-faith requirement on complainants. See

generally Pl.’s Opp’n, ECF No. 16-1. Rather, he contends that

Defendant’s offer did not constitute full relief and that

rejection of a settlement offer is not a failure to exhaust. Id.

at 14.3 For the reasons that follow, the Court DENIES Defendant’s

Motion to Dismiss on this ground.

Under Title VII, it is unlawful for an employer “to

discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment,

because of such individual’s race, color, religion, sex, or

national origin.” 42 U.S.C. § 2000e-2(a)(1); see also McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 800-01 (1973). Congress

“created the Equal Employment Opportunity Commission and

established a procedure whereby . . . the Commission[] would

have an opportunity to settle disputes through conference,

conciliation, and persuasion before the aggrieved party was

permitted to file a lawsuit.” Alexander v. Gardner-Denver Co.,

415 U.S. 36, 44 (1974). Consequently, “Title VII complainants

must timely exhaust their administrative remedies before

3 Mr. Ho also argues that the settlement offer was “retaliatory on its face.” Pl.’s Opp’n, ECF No. 16-1 at 14. The Court addresses the issue of retaliation infra, as it is unnecessary to decide for Defendant’s exhaustion claim.

18 bringing their claims to court.” Payne v. Salazar, 619 F.3d 56,

65 (D.C. Cir. 2010) (alterations, citation, and internal

quotation marks omitted). The government bears the burden of

pleading and proving non-exhaustion as an affirmative defense,

and only once it meets its burden does the burden shift to the

plaintiff to “plead[] and prov[e] facts supporting equitable

avoidance of the defense.” Bowden v. United States, 106 F.3d

433, 437 (D.C. Cir. 1997).

Defendant argues that “[j]udicial elaboration of the

exhaustion requirement has imposed an additional obligation of

good faith participation in the administrative process on

complainants who wish to bring civil actions.” Wrenn, 918 F.2d

at 1078 (citing Munoz v. Aldridge, 894 F.2d 1489, 1492 (5th Cir.

1990)). Although the Court of Appeals for the District of

Columbia Circuit (“D.C. Circuit”) has not described the

exhaustion requirement in such terms, the Second Circuit has

explained that “it follows [from this requirement] that a

claimant who is offered full relief in the administrative

process must either accept the relief offered or abandon the

claim.” Id.

In Wrenn, the Second Circuit confronted for the first time

the issue of whether a plaintiff bringing an employment

discrimination claim may obtain relief in federal court after

rejecting an offer of full relief during the administrative

19 proceedings. See id. at 1074. The court, along with the district

court before it, concluded that the agency offered the plaintiff

full relief because the offer contained the “basic components of

‘make whole’ relief in hiring discrimination cases.” Id. at 1076

(collecting cases). The court then addressed the consequences of

the plaintiff rejecting an offer of full relief. Id. at 1077. It

determined that exhaustion must require good-faith participation

in the administrative proceedings because there is a

“legislative preference for voluntary conciliation.” Id. at

1078. Further,

To allow claimants . . . to continue to pursue claims that have been fully remedied during the administrative process would frustrate the congressional policy favoring administrative resolution of complaints for no discernible reason. Continued pursuit of such claims consumes judicial and other resources, resulting in a dead-weight social loss except for giving satisfaction to litigants who prefer court proceedings to administrative relief.

Id. at 1078-79. The court affirmed summary judgment for the

defendants on that basis. See id. at 1076-79.

Even if the Court were to conclude that the Wrenn court’s

articulation of the exhaustion argument is persuasive,

Defendant’s reliance on Wrenn is misplaced because here,

Defendant has not met its burden of pleading and proving that

the settlement offer constituted full relief. See Bowden, 106

F.3d at 437. Rather than pointing to evidence in the

20 administrative record, Defendant relies entirely on the

Complaint to assert that Mr. Ho was offered the relief he had

requested in his administrative complaint—paid reassignment to

the LVFO. Def.’s Mot., ECF No. 13-1 at 27. Defendant has pointed

to no evidence from which the Court could conclude that the

settlement offered Mr. Ho “full relief” here. Cf. Wrenn, 918

F.2d at 1076 (noting that “[t]he settlement proposal included

the three basic components of ‘make whole’ relief in hiring

discrimination cases: a job offer, backpay, and retroactive

seniority”).

Accordingly, the Court DENIES Defendant’s Motion to Dismiss

the Complaint for failure to exhaust administrative remedies.

C. Mr. Ho Has Sufficiently Pled a Claim of Discrimination

The Government next moves to dismiss Count II of the

Complaint, which alleges race discrimination in violation of

Title VII. See Def.’s Mot., ECF No. 13-1 at 28-31; Def.’s Reply,

ECF No. 19 at 10-17. For the reasons below, the Court concludes

that Mr. Ho has stated a claim of race discrimination.

“Under Title VII, . . . the two essential elements of a

discrimination claim are that (i) the plaintiff suffered an

adverse employment action (ii) because of the plaintiff’s race,

color, religion, sex, national origin, age, or disability.”

Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008). In

21 cases where there is no direct evidence of discrimination, as

here, the plaintiff must proceed under the burden-shifting

framework from McDonnell Douglas Corp. and Texas Department of

Community Affairs v. Burdine, 450 U.S. 248 (1981). See Jeffries

v. Barr, 965 F.3d 843, 859 (D.C. Cir. 2020). The plaintiff first

must plead a prima facie case of discrimination, see id.;

specifically, he must establish that “[]he is part of a

protected class under Title VII, []he suffered a cognizable

adverse employment action, and the action gives rise to an

inference of discrimination,” Walker v. Johnson, 798 F.3d 1085,

1091 (D.C. Cir. 2015). If he makes out a prima facie case, then

the burden shifts to the defendant to “‘articulate some

legitimate, nondiscriminatory reason’ for its action.” Jeffries,

965 F.3d at 859 (quoting Burdine, 450 U.S. at 252-53). “Should

the employer carry its burden at the second step,” the burden

shifts back to the plaintiff to “prove that the employer’s

asserted reasons ‘were not its true reasons, but were a pretext

for discrimination.’” Id. at 859-60 (quoting Burdine, 450 U.S.

at 253).

1. Plaintiff’s Prima Facie Case

To begin, a plaintiff may survive a Rule 12(b)(6) motion to

dismiss without pleading all of the elements of a prima facie

case. See Brown v. Sessoms, 774 F.3d 1016, 1023 (D.C. Cir.

2014). “The prima facie case under McDonnell Douglas . . . is an

22 evidentiary standard, not a pleading requirement.” Swierkiewicz

v. Sorema N.A., 534 U.S. 506, 510 (2002). Still, the Court

concludes that Mr. Ho had pled all of the elements of his prima

facie case at this stage in the proceedings.

Defendant argues that Mr. Ho has not carried his burden at

the first step.4 First, the Government disputes that reassignment

to the JSOC is an adverse employment action. See Def.’s Reply,

ECF No. 19 at 14. It argues that, in the Complaint, Mr. Ho made

“a single unsupported allegation that the Joint Support

Operations Center ‘is considered a punishment position and is a

difficult to fill,’” id. (quoting Compl., ECF No. 1 at 3 ¶ 13);

which is a “conclusory allegation[] not entitled to the

assumption of truth,” id. (citing Iqbal, 556 U.S. at 678-79).

Defendant’s argument ignores both controlling caselaw and other

allegations in the Complaint. The D.C. Circuit has explained

that “reassignment with significantly different

responsibilities” is “conclusively presumed to be [an] adverse

employment action[], even if any alleged harm is speculative.”

Douglas v. Donovan, 559 F.3d 549, 553 (D.C. Cir. 2009). Here,

Mr. Ho alleged that his reassignment to the JSOC entailed

significantly different responsibilities, specifically that

4 Defendant does not contest that Mr. Ho is a member of a protected class under Title VII. See Def.’s Mot., ECF No. 13-1 at 6.

23 “[t]he JSOC SA position to which [he] was involuntarily

reassigned is clerical in nature,” and his “primary

responsibilities included answering phones and conducting

history checks.” Compl., ECF No. 1 at 3 ¶ 13. Although there may

be a dispute over whether the JSOC is a “punishment position,”

see Def.’s Reply, ECF No. 19 at 17 (citing Mr. O’Keefe’s

deposition transcript to explain that agents have volunteered

for reassignment to the JSOC); Mr. Ho has met his pleading

burden at this stage.

Second, the Government contends that Mr. Ho’s allegations

do not give rise to an inference of discrimination. See Def.’s

Mot., ECF No. 13-1 at 28-31; Def.’s Reply, ECF No. 19 at 10-17.

The Court begins by addressing Mr. Ho’s allegations about SAC

Smith’s “history of racially charged statements.” Pl.’s Opp’n,

ECF No. 16-1 at 17. SAC Smith made the first of the two

statements at issue in June 2014, shortly after Mr. Ho began his

assignment at the WFD. See Compl., ECF No. 1 at 3 ¶ 11; id. at 4

¶ 16. In this conversation, Mr. Smith discussed Mr. Ho’s job

responsibilities as a Senior Operations Officer at the WFD. See

Def.’s Reply, ECF No. 19 at 11 (citing Def.’s Ex. 1 (T. Ho Dep.

Tr.) at 86:2-12.3). Mr. Smith also talked about his experience

supervising Mr. Ho two years earlier when they both worked in

the SOD, see Def.’s Mot., ECF No. 13-1 at 7 (citing Def.’s Ex. 1

(T. Ho Dep. Tr.) at 90:9-11); and explained that, because of

24 that experience, “he knew the ‘type of person [Plaintiff was]

and he had an idea of what to expect of [Plaintiff],’” id.

(quoting Def.’s Ex. 1 (T. Ho Dep. Tr.) at 90:9-22). Although he

already knew Mr. Ho in a supervisory capacity, see id.; Mr.

Smith turned the conversation to another man he had previously

supervised, SA Xiong, who had been a Division Operations Officer

at the Seattle Field Division, see id. (citing Def.’s Ex. 1 (T.

Ho Dep. Tr.) at 86:2-12). Mr. Xiong, like Mr. Ho, is a “first-

generation Asian immigrant[], with English as a second

language.” Compl., ECF No. 1 at 4 ¶ 16. Mr. Smith “described SA

Xiong as good at administrative duties, but not as assertive as

other agents.” Id. Mr. Ho alleges that “SAC Smith made this

comparison between SA Xiong and Plaintiff based on their race,

reflecting a stereotypical view of Asians.” Id.

The second statement at issue came several months later. In

December 2014, Mr. Smith invited Mr. Ho and two other special

agents to join his family for dinner on Christmas Eve. Id. at 4

¶ 17. Mr. Ho declined the invitation. See id. In the following

weeks and in front of Mr. Ho and other WFD staff, Mr. Smith

commented that “Tommy did not want to go to a [B]lack man’s

house.” Id.

The Court concludes that Mr. Ho has pled adequate facts

from which it may draw an inference of discrimination. Speaking

at the summary judgment stage where the plaintiff alleging

25 discrimination must prove more than at the motion to dismiss

stage, the D.C. Circuit has held:

Although we have found that an isolated race- based remark unrelated to the relevant employment decision could not, without more, permit a jury to infer discrimination, see, e.g., Waterhouse v. Dist. of Columbia, 298 F.3d 989, 996–97 (D.C. Cir. 2002), we have not categorically labeled such comments immaterial. To the contrary, we have found these types of statements to support a verdict for a Title VII plaintiff. See, e.g., Evans v. Sebelius, 716 F.3d 617, 622–23 (D.C. Cir. 2013); Talavera v. Shah, 638 F.3d 303, 312–13 (D.C. Cir. 2011); Anderson v. Grp. Hospitalization, Inc., 820 F.2d 465, 472 (D.C. Cir. 1987); see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 152-53 (2000) (cautioning lower courts against discounting discriminatory statements “not made in the direct context” of the challenged employment action).

Morris v. McCarthy, 825 F.3d 658, 669–70 (D.C. Cir. 2016).

Defendant argues that Mr. Smith’s statements are the “isolated”

remarks that cannot give rise to an inference of discrimination.

See Def.’s Mot., ECF No. 13-1 at 29-30; Def.’s Reply, ECF No. 19

at 11-14. But this argument minimizes Mr. Smith’s words.

“Although it is true [these statements] will not always be

evidence of racial animus, it does not follow that [these

words], standing alone, [are] always benign.” Ash v. Tyson

Foods, Inc., 546 U.S. 454, 456 (2006) (per curiam). It is

plausible that these statements reflect stereotypical views of

Asians and Asian-Americans—namely, that they excel in

26 administrative positions and that they are racist against Black

men. See Pl.’s Opp’n, ECF No. 16-1 at 22.

Nor is it fatal, as Defendant suggests, that Mr. Smith made

these statements months before he forwarded Plaintiff’s name for

involuntary transfer to the JSOC. See Def.’s Mot., ECF No. 13-1

at 29-30; Def.’s Reply, ECF No. 19 at 13-14. Indeed, the D.C.

Circuit has explained that “remarks made significantly before

the relevant employment action” may “support a verdict for a

Title VII plaintiff” and are “probative evidence of a

supervisor’s discriminatory attitude.” Morris, 825 F.3d at 670.

Thus, the Court considers these statements alongside “all other

evidence [] to determine whether a plaintiff has met her

burden.” Id. As Defendant argues, “context matters.” Def.’s

Reply, ECF No. 19 at 13.

Here, Mr. Ho has alleged other facts to support an

inference of discrimination. He alleges that Mr. Smith was

directed to provide “the names of two ‘candidates that fit the

criteria for a transfer to the JSOC.’” Compl., ECF No. 1 at 4 ¶

14. Seven agents, including Mr. Ho, met the criteria for

transfer. Id. at 4 ¶ 15. Additionally, another agent—SA Jacobi—

had volunteered for transfer to the JSOC. Id. at 5 ¶ 22. Agents

are involuntarily transferred to the JSOC only if no agents

volunteered for the transfer. Id. Even so, Mr. Smith forwarded

Mr. Ho’s name only, which resulted in the latter’s involuntary

27 reassignment to the JSOC. Id. at 4 ¶ 15. Given these

circumstances and Mr. Smith’s statements, Mr. Ho has more

support than the unsuccessful plaintiff Defendant cites in

McCleary-Evans v. Maryland Department of Transportation, 780

F.3d 582 (4th Cir. 2015), whose “complaint offered nothing to

support her conclusory assertions of discrimination beyond an

unsubstantiated mention of ‘a history of hires’ within the

division and statements identifying her race, the races of the

two members of the hiring review panel, and the races of the two

applicants hired for the positions.” 780 F.3d at 584

(alterations and internal quotation marks omitted). Mr. Ho has

submitted evidence of race-based remarks by his supervisor,

which are substantiated in the evidentiary record, as well as

circumstances around his involuntary transfer to the JSOC that

make it reasonable to infer discrimination.

Accordingly, the Court concludes that Plaintiff has

adequately pled his prima facie case of discrimination.

2. Defendant’s Legitimate, Nondiscriminatory Reasons and Plaintiff’s Case for Pretext

The parties do not dispute that Defendant has offered

legitimate, nondiscriminatory reasons for Plaintiff’s

involuntary transfer to the JSOC. See Def.’s Mot., ECF No. 13-1

at 14-15; Pl.’s Opp’n, ECF No. 16-1 at 21-22; Def.’s Reply, ECF

No. 19 at 30-31. Specifically, Defendant claims that ATF needed

28 to backfill positions at the JSOC and that SAC Smith selected

Mr. Ho because he met the qualifications for transfer. See

Def.’s Mot., ECF No. 13-1 at 30-31. The Court agrees that

Defendant has articulated legitimate reasons for the employment

decision. See Burdine, 450 U.S. at 254 (“The defendant need not

persuade the court that it was actually motivated by the

proffered reasons. It is sufficient if the defendant’s evidence

raises a genuine issue of fact as to whether it discriminated

against the plaintiff.”)

The Court therefore turns to Mr. Ho’s argument that the

Government’s “asserted reasons ‘were not its true reasons, but

were a pretext for discrimination.’” Jeffries, 965 F.3d at 860

(quoting Burdine, 450 U.S. at 253). Mr. Ho makes four points to

support his argument about pretext: (1) Mr. Smith forwarded only

Plaintiff’s name despite having been asked to send two names;

(2) Mr. Smith’s history of race-based statements; (3) ATF’s

practice of transferring to the JSOC agents with disciplinary or

conduct issues; and (4) ATF’s practice of making involuntary

transfers to the JSOC only when there were voluntary candidates.

See Pl.’s Opp’n, ECF No. 16-1 at 21-22. In its reply briefing,

Defendant raises three points: (1) Plaintiff has not alleged

facts that Mr. Smith harbored racial animus against him; (2) one

of the agents Plaintiff identified—Mr. Price—was not a candidate

for reassignment by Mr. Smith; and (3) Mr. Jacobi was not a

29 candidate for reassignment by Mr. Smith. See Def.’s Reply, ECF

No. 19 at 15-17.

The Court need not address Defendant’s second argument, as

it is repetitive of Defendant’s earlier argument against the

prima facie case and has been addressed supra. See id. at 16.

Turning to Defendant’s other points, the Court is similarly

unpersuaded. In the Complaint, Mr. Ho alleges that “Brent Price

was identified by DAD Vidoli as a potential candidate for the

JSOC because he had Giglio issues.” Compl., ECF No. 1 at 5 ¶ 22.

Assuming arguendo that Mr. Price did have Giglio issues, see

Def.’s Reply, ECF No. 19 at 16 n.6; Defendant argues that Mr.

Price could not have been selected instead of Mr. Ho because Mr.

Price worked at the Seattle Field Division and thus was not a

candidate for Mr. Smith (at the WFD) to consider, id. at 16-17.

Even if Defendant’s contention is true, it does not explain why

Mr. Vidoli would have named Mr. Price as a potential candidate

for transfer to the JSOC. See Compl., ECF No. 1 at 5 ¶ 22. Nor

does it dispose of Mr. Ho’s general argument that other agents—

namely, those with Giglio issues—are considered for transfer to

the JSOC before other agents. See id. In fact, Defendant does

not dispute that this practice exists. See generally Def.’s

Reply, ECF No. 19; Def.’s Mot., ECF No. 13-1. Mr. Ho claims that

the Government veered from its usual course due to Mr. Smith’s

discriminatory actions, and Defendant’s argument about Mr. Price

30 at best creates a factual dispute about whether there were

candidates with Giglio issues at the time of Mr. Ho’s transfer.

Defendant makes a similar argument as to Mr. Jacobi, and

the Court comes to the same conclusion. Mr. Ho alleges that Mr.

Jacobi had volunteered for transfer to the JSOC and that “an

agent is only involuntarily transferred to the JSOC if there are

no voluntary candidates for the position.” Compl., ECF No. 1 at

5 ¶ 22. Defendant argues that Mr. Smith could not have

considered Mr. Jacobi for the reassignment because Mr. Smith

supervises agents at the WFD and Mr. Jacobi, like Mr. Price,

works at the Seattle Field Division. See Def.’s Reply, ECF No.

19 at 16-17. Given Mr. Ho’s allegations that ATF takes voluntary

transfers first and that Mr. Smith selected only one agent,

Defendant does not offer enough to explain why Mr. Smith

forwarded Mr. Ho’s name for transfer at all. Moreover, Defendant

undercuts its own argument by claiming that “ATF had not been

required to involuntarily reassign any other agent because

agents had always volunteered for the reassignment since around

2008.” Id. at 17 (citation omitted). Defendant offers no

explanation as to whether there were other volunteers in 2015,

why there were no volunteers other than Mr. Jacobi, or why ATF

failed to solicit more volunteers if needed. Left with these

gaps, the Court concludes that Mr. Ho has stated a claim that

ATF’s reason for reassigning Mr. Ho to the JSOC was pretextual.

31 Accordingly, the Court DENIES Defendant’s Motion to Dismiss

Count II of the Complaint alleging race discrimination in

violation of Title VII.

D. Mr. Ho Has Not Alleged a Plausible Claim of Retaliation

1. The Settlement Offer Is Inadmissible Defendant also moves to dismiss Count I of the Complaint,

which alleges retaliation in violation of Title VII, arguing

that Mr. Ho’s allegations are based on inadmissible evidence of

the settlement offer. See Def.’s Mot., ECF No. 13-1 at 31-34;

Def.’s Reply, ECF No. 19 at 17-22.

Mr. Ho’s retaliation claim is that “Defendant’s conduct in

denying Plaintiff’s transfer to the LVFO absent his agreement to

withdraw his EEO Complaint constitutes retaliation for engaging

in protected activity.” Compl., ECF No. 1 at 13 ¶ 70.

The Government argues that this “allegation[] cannot be

used to state a plausible claim of retaliation” because pursuant

to Federal Rule of Evidence 408(a), “evidence of [a settlement

offer or settlement discussions] is not admissible—on behalf of

any party—either to prove or disprove the validity5 or amount of

a disputed claim or to impeach by a prior inconsistent statement

5 Validity encompasses liability. See Fed. R. Evid 408, adv. Comm. Note, 2011 Amend.

32 or a contradiction.” Def.’s Mot., ECF No. 13-1 at 31 (citing

Fed. R. Evid. 408(a)).

In response, Mr. Ho makes two arguments. First, he argues

that his “retaliation claim is not based on inadmissible

settlement discussions” because the basis for his retaliation

count is that “[a]fter [he] filed his formal EEO complaint, AD

Gleysteen denied [Mr. Ho’s] request to transfer to the LVFO and

shredded the original transfer paperwork, destroying evidence

for which there are no copies.” Pl.’s Opp’n, ECF No. 16-1 at 23

(citing Compl., ECF No. 1 at 10 ¶ 49).

Mr. Ho alleges that “[t]he paperwork for the transfer was

on AD Gleysteen’s desk when Plaintiff filed his formal

complaint” and that “after Plaintiff filed his formal EEO

complaint, AD Gleysteen denied Plaintiff’s request to transfer

to the LVFO and destroyed the original transfer paperwork.”6 Id.

(citing Compl., ECF No. 1 at 10 ¶¶ 50, 49). However, this is not

the basis of the retaliation count in the Complaint. See Compl.,

6 The allegations in the Complaint do not support this argument. Rather, the Complaint alleges that Mr. Ho filed a formal EEO complaint on August 14, 2015, see Compl., ECF No. 1 at 6-7 ¶ 30; and that the paperwork did not reach AD Gleysteen’s desk until sometime after August 24, 2015, see id. at 9 ¶¶ 43, 45. Furthermore, during the administrative proceedings, Mr. Ho failed to elicit any evidence demonstrating that Mr. Gleysteen’s failure to approve the transfer to the LVFO was retaliatory because there is no evidence that Mr. Gleysteen knew about Mr. Ho’s EEO activity when he declined to approve the transfer to the LVFO. See Gleysteen Dep., ECF No. 24-12 at 29:6-31-13; McDermond Dep., ECF No. 14-5 at 53:17-54:15.

33 ECF No. 1 at 13 ¶ 70. “It is axiomatic that a complaint may not

be amended by the briefs in opposition to a motion to dismiss.”

Coleman v. Pension Benefit Guar. Corp., 94 F. Supp. 2d 18, 24

n.8 (D.D.C 2000) (citation omitted).

Mr. Ho’s second argument is that he can use the settlement

discussions “for another purpose, such as proving a witness’s

bias or prejudice.” Pl.’s Opp’n, ECF No. 16-1 at 23. He ties

this use of the settlement discussions again to “Defendant’s

offer to reassign Plaintiff to the LVFO and subsequent recission

of that offer,” arguing that the settlement offer is being used

to prove AD Gleysteen’s bias or prejudice. Id. As explained

above, however, Mr. Ho’s retaliation count is not based on this

incident, but on “Defendant’s conduct in denying Plaintiff’s

transfer to the LVFO absent his agreement to withdraw his EEO

Complaint constitutes retaliation for engaging in protected

activity.” Compl., ECF No. 1 at 13 ¶ 70.

Mr. Ho has provided no argument in support of his use of

the settlement offer to prove that Defendant retaliated against

him when it offered to transfer him to the LVFO so long as he

withdrew his EEO complaint, which is Mr. Ho’s retaliation

allegation in the Complaint. See Pl.’s Opp’n, ECF No. 16-1 at

23-24. The evidence of the settlement offer is therefore

inadmissible. See Fed. R. Evid. 408(a).

34 2. Mr. Ho Has Not Alleged a Plausible Retaliation Claim

Alternatively, Defendant argues that Mr. Ho cannot state a

claim for retaliation based on the offer of approving the

transfer to the LVFO in exchange for Mr. Ho withdrawing his EEO

complaint. See Def.’s Mot., ECF No. 13-1 at 32-34.

Under Title VII, it is unlawful for an employer to: (1)

“discriminate against any individual with respect to [his]

compensation, terms, conditions, or privileges of employment,

because of [his] race, color, religion, sex, or national

origin,” 42 U.S.C. § 2000e-2(a)(1); or (2) retaliate against any

individual for participating in a protected activity, 42 U.S.C.

§ 2000e-3(a). To establish a prima facie claim of retaliation,

the plaintiff must allege that he engaged in activity protected

by Title VII, the employer took adverse action against him, and

the employer took that action because of the employee’s

protected conduct. Hamilton v. Geithner, 666 F.3d 1344, 1357

(D.C. Cir. 2012).

In response, Mr. Ho again argues that he had stated a claim

for retaliation both as a result of “Defendant’s agreement to

transfer him to the LVFO and subsequent abandonment of that

agreement after learning that Plaintiff had filed a formal EEO

complaint” and Defendant’s settlement offer to transfer Mr. Ho

only if he withdrew his complaint. Pl.’s Opp’n, ECF No. 16-1 at

25. The Court will disregard Mr. Ho’s first argument because it

35 is not the retaliation count alleged in the Complaint and

because Mr. Ho elicited no evidence to support the argument

during the administrative proceedings. See supra. To the extent

Mr. Ho argues that the settlement offer constituted an adverse

employment action, the authority within this circuit upon which

he relies provides no support for this argument. In Rochon v.

Gonzales, the issue was whether the retaliatory action needs to

be employment related to state a Title VII claim. 438 F.3d 1211,

1217 (D.C. Cir. 2006). There, the allegation was that the

retaliatory conduct was the employer’s refusal to investigate a

death threat made against the plaintiff. Id. at 1219. Here,

there is no question that the alleged retaliatory act was

employment related. In Ramos v. Lynch, the Court found that

summary judgment for the employer was premature because “[t]he

information sought by plaintiff could show there was objective

harm caused by the transfer—either direct, financial harm, or

harm to plaintiff’s prospects for advancement at the agency . .

. .” 267 F. Supp. 3d 39, 47 (D.D.C. 2017). This provides no

support for the proposition that conditioning the transfer to

the LVFO in exchange for withdrawing his EEO complaint was an

adverse employment action.

Mr. Ho has provided no support for his argument that the

settlement offer constituted an adverse employment action and

therefore has failed to state a plausible claim for retaliation.

36 Cf. EEOC v. Allstate Ins. Co., 778 F.3d 444, 452 (3d Cir. 2015)

(finding that “denying an employee an unearned benefit on the

basis of the employee’s refusal to sign a release” is not an

adverse employment action); EEOC v. SunDance Rehab Corp., 466

F.3d 490, 499 (6th Cir. 2006) (holding that the offer of a

separation agreement that included a charge-filing ban did not

amount to retaliation).

For these reasons, the Court GRANTS Defendant’s Motion to

Dismiss Count I of the Complaint alleging retaliation in

violation of Title VII and DISMISSES this Count.

E. Plaintiff’s Motion Under Rule 56(d)

Mr. Ho requests additional discovery beyond that which the

parties conducted during the administrative proceedings. See

generally Pl.’s Mot., ECF No. 17-1. His request is narrow,

though, and his Motion Under Rule 56(d) outlines the five types

of discovery he requests for his federal court case: (1) a

deposition of SAC Smith; (2) a deposition of DAD Vidoli; (3)

discovery of six agents Mr. Smith considered for transfer; (4)

discovery of other agents who were involuntarily transferred to

the JSOC between 2013 and 2016; and (5) discovery of Defendant’s

policies and guidance regarding PCS files and litigation holds.

See id. Defendant opposes this request for discovery. See

generally Def.’s Opp’n, ECF No. 21. The Government addresses

37 each of the five areas of discovery Plaintiff identified. See

id. For the reasons explained below, the Court concludes that

discovery is warranted in this case.

Under Rule 56(d), the Court may defer considering a motion

for summary judgment, deny the motion, or allow time for the

non-movant to take discovery if that party “shows by affidavit

or declaration that, for specified reasons, it cannot present

facts essential to justify its opposition.” Fed. R. Civ. P.

56(d). Courts are generally reluctant to grant summary judgment

“unless all parties have ‘had a full opportunity to conduct

discovery.’” Convertino, 684 F.3d at 99 (quoting Anderson, 477

U.S. at 257). For that reason, the D.C. Circuit has directed

district courts to grant Rule 56(d) motions “‘almost as a matter

of course.’” Id. (quoting Berkeley v. Home Ins. Co., 68 F.3d

1409, 1414 (D.C. Cir. 1995)). This issue is particularly

sensitive in employment discrimination cases; as the Supreme

Court has explained, “[b]efore discovery has unearthed relevant

facts and evidence, it may be difficult to define the precise

formulation of the required prima facie case in a particular

case.” Swierkiewicz, 534 U.S. at 512.

A Rule 56(d) movant must: (1) “outline the particular facts

movant intends to discover and describe why those facts are

necessary to the litigation”; (2) “explain why the movant could

not produce the facts in opposition to the motion for summary

38 judgment”; and (3) “show the information is in fact

discoverable.” Convertino, 684 F.3d at 94. As Defendant suggests

in their briefing, see Def.’s Opp’n, ECF No. 21 at 7-8; “there

is no reason why the de novo proceedings need duplicate the

administrative record . . . and most de novo testimony would be

in the nature of supplementation to that record.” Hackley v.

Roudebush, 520 F.2d 108, 150 (D.C. Cir. 1975). Still, the D.C.

Circuit has instructed that “courts should focus on the

employee’s complaint” instead of “presuming that . . . the

plaintiff must affirmatively establish his need for

supplementation.” Id. at 151.

Here, Defendant’s Motion to Dismiss or, in the Alternative,

Motion for Summary Judgment was filed before discovery. See

generally Docket for Civil Action No. 20-912. Mr. Ho, in

responding to the Government’s motion, has identified potential

discovery needed to respond to this motion for summary judgment.

See generally Pl.’s Mot., ECF No. 17-1. The Court reviews each

area for discovery in turn.

1. Deposition of SAC Smith

Mr. Ho first requests that he be able to depose Mr. Smith.

Pl.’s Mot., ECF No. 17-1 at 4. He argues that this deposition is

relevant to his case because it will “show that Defendant’s

stated non-discriminatory reasons for the involuntarily transfer

39 were a pretext for discrimination.” Id. He plans to elicit

testimony regarding the following:

1) Smith’s understanding of whether the JSOC is a punishment position; 2) Smith’s racially charged statements to and about Plaintiff; 3) Information concerning other agents Smith transferred to the JSOC; 4) Whether those agents were applying to positions outside the Washington Field Division (WFD) when they were transferred; 5) Whether their transfer was voluntary; and 6) Whether Smith took into account the types of positions to which Plaintiff applied before involuntarily transferring him to the JSOC.

Pl.’s Reply, ECF No. 23 at 8. Defendant objects at length to

this additional deposition. See Def.’s Opp’n, ECF No. 21 at 11-

22. The Government argues that any relevant information has

already been produced through Mr. Smith’s EEO affidavit,

Plaintiff’s EEO affidavit, Plaintiff’s EEO deposition, and Mr.

Graves’ EEO deposition. See id. at 12. Moreover, Defendant

contends, “Plaintiff has failed to articulate why those facts

are necessary to the litigation, why he could not produce those

facts absent additional discovery, and that those facts are

discoverable.” Id. at 14.

The Court will permit Mr. Ho to depose Mr. Smith. Most

significant is the fact that Mr. Ho never deposed his former

supervisor during the administrative proceedings and has relied,

thus far, only on Mr. Smith’s EEO affidavit. See Pl.’s Mot., ECF

No. 17-1 at 4. Despite Defendant’s detailed arguments, because

40 of Mr. Smith’s role, it is clear that his testimony will be

necessary to Mr. Ho’s claims. See Fed. R. Civ. P. 26(b)(1); cf.

Hackley, 520 F.2d at 151 (“[T]he employee should have the right

to conduct discovery and compel the attendance of witnesses to

furnish additional evidence.”).

2. Deposition of DAD Vidoli

Mr. Ho also requests a deposition of Mr. Vidoli. Pl.’s

Mot., ECF No. 17-1 at 6. He argues that this testimony is

relevant to a material fact—whether Mr. Vidoli directed Mr.

Smith to provide one or two names for transfer to the JSOC. See

id. In its opposition briefing, Defendant argues that this

deposition is not needed because Mr. Rabadi, not Mr. Vidoli,

communicated directly with Mr. Smith. Def.’s Opp’n, ECF No. 21

at 22-23. The Government adds that, though Mr. Ho possesses

relevant information from Mr. Rabadi’s EEO deposition as well as

Mr. Vidoli and Mr. Smith’s EEO affidavits, the issue of one or

two names “does not matter to the outcome of this litigation.”

Id. at 23.

Because Mr. Ho’s involuntary transfer to the JSOC is the

adverse employment action for his discrimination claim, it is

necessary for him to develop and ascertain facts about the

circumstances of the transfer. Part of Mr. Ho’s theory is that

Mr. Smith decided to transfer only Mr. Ho even though Mr. Vidoli

requested two transfers. See Compl., ECF No. 1 at 3-4 ¶¶ 14-15.

41 Further, the Court does not find this request to be cumulative

or duplicative, as Mr. Vidoli has never been deposed. The Court

therefore will allow Mr. Ho to depose Mr. Vidoli.

3. Discovery of Six Other Agents Considered for Transfer

Mr. Ho contends that he needs discovery related to the six

agents Mr. Smith considered for transfer to the JSOC: Samuel

Katz, Jeffrey Meixner, Anthony Rather, Gary Styers, Vendarryl

Jenkins, and Marjorie Noel. Pl.’s Mot., ECF No. 17-1 at 6. He

explains that he “needs to obtain additional evidence about the

potential comparators’ job titles and duties as well as whether

they met the criteria for transfer.” Id. (citing Carter v.

George Washington Univ., 387 F.3d 872, 878 (D.C. Cir. 2004)).

Defendant opposes this request, arguing that the information is

not relevant because “[t]he issue . . . is not why Smith did not

select the other agents, but why Smith selected Plaintiff.”

Def.’s Opp’n, ECF No. 21 at 24. Moreover, the Government adds,

Plaintiff has already discovered information about these six

agents. See id. at 25-26.

Mr. Ho already has information about these six agents’ job

titles and duties, see id.; and so the Court denies Plaintiff’s

request for discovery on those topics, see Townsend v. Mabus,

736 F. Supp. 2d 250, 253 (D.D.C. 2010) (“That the Court’s review

of plaintiff’s claims is de novo does not, as plaintiff appears

42 to claim, entitle her to discovery duplicative of that which is

already in the record.” (citing Hackley, 520 F.2d at 150)).

Mr. Ho also requests information about “whether [the six

agents] met the criteria for transfer.” Pl.’s Mot., ECF No. 17-1

at 6. Defendant points to some evidence in the administrative

record, such as performance appraisals. See Def.’s Opp’n, ECF

No. 21 at 25-26. To the extent that Mr. Ho seeks discovery of

other information about these agents related to the criteria for

transfer but not in the administrative record, the Court permits

further discovery. This information is necessary to respond to

the question of whether other agents would have been suitable

for transfer and therefore to the question of why Mr. Ho was

selected rather than another agent. This is enough to clear the

Convertino hurdle.

4. Discovery of Other Agents Involuntarily Transferred to the JSOC

Mr. Ho argues that he requires discovery about the other

agents who were involuntarily transferred to the JSOC between

2013 and 2016. See Pl.’s Mot., ECF No. 17-1 at 7.7 He claims that

7 “At a minimum, Plaintiff seeks their: 1) names; 2) job titles and duties; and 3) race and national origin. Plaintiff also needs to know whether: 1) the agents had any disciplinary issues, e.g. Giglio issues; 2) they volunteered for the transfer to the JSOC; 3) the agents faced any barriers to upward mobility after transferring to the JSOC; and 4) the agents were actively seeking to be reassigned to a different division prior to joining the JSOC.” Affidavit of Avni J. Amin, ECF No. 17-3 at 3 ¶ 12.

43 this information is necessary “[t]o prove Defendant’s non-

discriminatory reasons for involuntarily transferring Plaintiff

to the JSOC are pretextual.” Pl.’s Mot., ECF No. 17-1 at 7. In

its opposition briefing, Defendant contends that this

information is irrelevant, will not create an issue of material

fact, and is duplicative of discovery already conducted at the

administrative level.8 See Def.’s Opp’n, ECF No. 21 at 26-27.

This evidence is relevant to the case. The details of other

agents’ involuntary transfers are relevant to the question of

whether other similarly situated agents were involuntarily

transferred to the JSOC. Answers to this question may illuminate

whether Defendant’s reasons for transferring Mr. Smith instead

of other agents are pretextual. Cf. Cruz v. McAleenan, 931 F.3d

1186, 1192 (D.C. Cir. 2019) (“‘[C]omparative information

concerning an employer’s treatment of [protected groups] is

relevant evidence in an individual discrimination claim against

that employer. Such evidence can be used . . . to show that the

employer’s stated reasons for the challenged actions are a

pretext for discrimination.’” (quoting Minority Employees at

8 Defendant identifies two passages in a single deposition as the discovery already produced in the case. See Def.’s Opp’n, ECF No. 21 at 27 (citing Mr. O’Keefe’s deposition transcript). The Court does not address this deposition because, as Plaintiff describes in his motion and affidavit, this discovery request involves specific data not covered in those passages.

44 NASA v. Beggs, 723 F.2d 958, 962 (D.C. Cir. 1983) (per

curiam))).

Further, this request is proportional to the needs of the

litigation. “[T]ransfers are not everyday occurrences,” Pl.’s

Reply, ECF No. 23 at 16; and so Plaintiff requires discovery

over the course of years, rather than months, to conduct his

inquiry. Looking at transfers from both before and after Mr.

Ho’s transfer may reveal information about ATF’s contemporary

practices. And because Mr. Ho has identified the data points he

needs from this discovery, the Court concludes that this request

is limited and proportional to the needs of the case.

5. Discovery of Defendant’s Policies on PCS Files and Litigation Holds

Mr. Ho claims that he needs additional information about

any litigation hold and “Defendant’s guidance, policies, and

procedures concerning the types of documents and information

that would ordinarily comprise a PCS file” because AD Gleysteen

destroyed the only copy of his PCS file. Pl.’s Mot., ECF No. 17-

1 at 8. He explains that this evidence is relevant to his

retaliation claim. Id. at 9. Defendant opposes this request,

reasoning in part that Mr. Ho has already discovered this

information. See Def.’s Opp’n, ECF No. 21 at 28. The Court has

dismissed Mr. Ho’s retaliation claim, and so this request is

DENIED.

45 Accordingly, the Court GRANTS IN PART and DENIES IN PART

Mr. Ho’s Motion Under Rule 56(d).

F. Conclusion

For the foregoing reasons, it is hereby ordered that

Defendant’s Motion to Dismiss or, in the Alternative, Motion for

Summary Judgment, ECF No. 13, is GRANTED IN PART and DENIED IN

PART; and it is further ordered that Mr. Ho’s Motion Under Rule

56(d), ECF No. 17, is GRANTED IN PART and DENIED IN PART.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge September 17, 2022