UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
EDWARD ALEXANDER LAPOTSKY, Plaintiff,
v. Civ. Action No. 20-0093 (EGS)
CHRISTINE WORMUTH, SECRETARY, U.S. DEPARTMENT OF THE ARMY, 1
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff Edward A. Lapotsky (“Mr. Lapotsky” or
“Plaintiff”) brings this lawsuit against Christine Wormuth,
Secretary of the U.S. Department of the Army (“the Army” or “the
Agency”), alleging race and national origin discrimination in
violation of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq., following the Army’s withdrawal of a tentative offer for
the position of Traffic Management Specialist. See generally
Compl., ECF No. 1. Pending before the Court is the Army’s Motion
to Dismiss, or in the Alternative for Summary Judgment. See Mot.
to Dismiss, ECF No. 9-1. Mr. Lapotsky opposes the motion and
requests discovery pursuant to Federal Rule of Civil Procedure
56(d), attaching to his opposition briefing a Rule 56(d)
1Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the current Secretary of the U.S. Department of the Army, Christine Wormuth, is substituted as Defendant for the former Secretary of the U.S. Department of the Army, Ryan D. McCarthy. See Fed. R. Civ. P. 25(d).
1 Declaration. See Pl.’s Opp’n, ECF No. 13. Upon consideration of
the motion, response, reply thereto, and the applicable law, the
Court DENIES the Motion to Dismiss, or in the Alternative for
Summary Judgment, ECF No. 9; and GRANTS Mr. Lapotsky’s request
to take discovery pursuant to Rule 56(d).
I. Factual and Procedural Background Mr. Lapotsky was born with dual German American
citizenship. Compl., ECF No. 1 ¶ 16. In June 2015, Mr. Lapotsky
applied for a position as a Traffic Management Specialist, and
in September 2015, he was offered the position. Id. ¶¶ 17-18. In
October 2015, Mr. Lapotsky formally renounced his German
citizenship and the Army requested that he provide documentation
that he was no longer a German citizen. Id. ¶¶ 19-20. In
November 2015, Mr. Lapotsky was informed that the job offer was
rescinded. Id. ¶ 21. He later learned that the reason the offer
was rescinded was because “due to his citizenship status, he was
allegedly an ‘ordinary resident’ of Germany” and thus ineligible
for the position pursuant to applicable regulations. Id. ¶ 22.
Mr. Lapotsky alleges that the determination that he was an
“ordinary resident” was based on the incorrect “assumption[]
that all individuals with dual German American citizenship
automatically [lose] their German citizenship when they join the
U.S. military” and accordingly “results in a discriminatory
policy against all individuals born with dual German American
2 citizenship.” Id. ¶¶ 27-28. The Army filed a Motion to Dismiss
or in the alternative for Summary Judgment on April 23, 2020,
see Mot. to Dismiss, ECF No. 9-1. Mr. Lapotsky responded on May
8, 2020, see Pl.’s Opp’n, ECF No. 13; to which the Army replied,
see Def.’s Reply, ECF No. 15. The motion is ripe and ready for
adjudication.
II. Standards of Review
A. Rule 12(b)(6) Motion to Dismiss
A motion to dismiss pursuant to 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 At. Corp. v. Twombly, 550
U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (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.” Iqbal, 556 U.S. at 678.
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
3 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.
B. Motions Styled as Motions to Dismiss, Or in the Alternative, for Summary Judgment in Employment Discrimination Cases Pursuant to 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
4 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.
Supp. 3d 180, 192 (D.D.C. 2016)) (internal quotation marks and
citation omitted) (first alteration in original).
C. Rule 56(d) Request for Discovery
Free access — add to your briefcase to read the full text and ask questions with AI
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
EDWARD ALEXANDER LAPOTSKY, Plaintiff,
v. Civ. Action No. 20-0093 (EGS)
CHRISTINE WORMUTH, SECRETARY, U.S. DEPARTMENT OF THE ARMY, 1
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff Edward A. Lapotsky (“Mr. Lapotsky” or
“Plaintiff”) brings this lawsuit against Christine Wormuth,
Secretary of the U.S. Department of the Army (“the Army” or “the
Agency”), alleging race and national origin discrimination in
violation of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq., following the Army’s withdrawal of a tentative offer for
the position of Traffic Management Specialist. See generally
Compl., ECF No. 1. Pending before the Court is the Army’s Motion
to Dismiss, or in the Alternative for Summary Judgment. See Mot.
to Dismiss, ECF No. 9-1. Mr. Lapotsky opposes the motion and
requests discovery pursuant to Federal Rule of Civil Procedure
56(d), attaching to his opposition briefing a Rule 56(d)
1Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the current Secretary of the U.S. Department of the Army, Christine Wormuth, is substituted as Defendant for the former Secretary of the U.S. Department of the Army, Ryan D. McCarthy. See Fed. R. Civ. P. 25(d).
1 Declaration. See Pl.’s Opp’n, ECF No. 13. Upon consideration of
the motion, response, reply thereto, and the applicable law, the
Court DENIES the Motion to Dismiss, or in the Alternative for
Summary Judgment, ECF No. 9; and GRANTS Mr. Lapotsky’s request
to take discovery pursuant to Rule 56(d).
I. Factual and Procedural Background Mr. Lapotsky was born with dual German American
citizenship. Compl., ECF No. 1 ¶ 16. In June 2015, Mr. Lapotsky
applied for a position as a Traffic Management Specialist, and
in September 2015, he was offered the position. Id. ¶¶ 17-18. In
October 2015, Mr. Lapotsky formally renounced his German
citizenship and the Army requested that he provide documentation
that he was no longer a German citizen. Id. ¶¶ 19-20. In
November 2015, Mr. Lapotsky was informed that the job offer was
rescinded. Id. ¶ 21. He later learned that the reason the offer
was rescinded was because “due to his citizenship status, he was
allegedly an ‘ordinary resident’ of Germany” and thus ineligible
for the position pursuant to applicable regulations. Id. ¶ 22.
Mr. Lapotsky alleges that the determination that he was an
“ordinary resident” was based on the incorrect “assumption[]
that all individuals with dual German American citizenship
automatically [lose] their German citizenship when they join the
U.S. military” and accordingly “results in a discriminatory
policy against all individuals born with dual German American
2 citizenship.” Id. ¶¶ 27-28. The Army filed a Motion to Dismiss
or in the alternative for Summary Judgment on April 23, 2020,
see Mot. to Dismiss, ECF No. 9-1. Mr. Lapotsky responded on May
8, 2020, see Pl.’s Opp’n, ECF No. 13; to which the Army replied,
see Def.’s Reply, ECF No. 15. The motion is ripe and ready for
adjudication.
II. Standards of Review
A. Rule 12(b)(6) Motion to Dismiss
A motion to dismiss pursuant to 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 At. Corp. v. Twombly, 550
U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (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.” Iqbal, 556 U.S. at 678.
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
3 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.
B. Motions Styled as Motions to Dismiss, Or in the Alternative, for Summary Judgment in Employment Discrimination Cases Pursuant to 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
4 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.
Supp. 3d 180, 192 (D.D.C. 2016)) (internal quotation marks and
citation omitted) (first alteration in original).
C. Rule 56(d) Request for Discovery
Under Federal Rule of Civil Procedure 56(d), a non-moving
party may seek 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.
5 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) request 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.
III. Analysis
A. Mr. Lapotsky has Sufficiently Pled a Claim of Discrimination The Army asserts that “[b]ased on the allegations of the
Complaint and the evidence in the administrative record, Mr.
Lapotsky’s failure to hire claim should be dismissed,” but
presents no arguments supporting its motion to dismiss. Mot. to
Dismiss, ECF No. 9-1 at 7. “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). Here, Mr. Lapotsky alleges an adverse
employment action because of his race and national origin.
Specifically, he alleges that the offer of employment was
rescinded because he is German-American. In support of these
allegations, Mr. Lapotsky alleges that the determination that he
was an “ordinary resident” was based on the incorrect
“assumption[] that all individuals with dual German American
6 citizenship automatically [lose] their German citizenship when
they join the U.S. military” and accordingly “results in a
discriminatory policy against all individuals born with dual
German American citizenship.” Compl., ECF No. 1 ¶¶ 27-28. Taking
the allegations to be true and making all inferences in Mr.
Lapotsky’s favor, as the Court must as this juncture, and in
view of the lack of any opposition by the Army, the Court
concludes that Mr. Lapotsky has stated a claim of
discrimination.
Rather than presenting an argument in support of its motion
to dismiss, the Army “[a]ssum[es] arguendo that the Plaintiff
has established a prima facie case under the McDonnell Douglas
framework,” Def.’s Mot, ECF No. 9-1 at 7, 16; and then
articulates its legitimate, non-discriminatory reason for not
hiring Mr. Lapotsky, specifically that he was ineligible for the
position due to his “ordinary resident” status, and argues that
it is entitled to summary judgment because Mr. Lapotsky is
unable to provide evidence to show that this reason is pretext
for discrimination. Id. at 16-18. However, the Court of Appeals
for the District of Columbia Circuit “has long recognized that a
party opposing summary judgment needs a ‘reasonable opportunity’
to complete discovery before responding to a summary judgment
motion . . . .” Khan v. Parsons Global Services, Ltd., 428 F.3d
1079, 1087 (D.C. Cir. 2005). Here, however, there has been no
7 discovery. See generally Docket for Civil Action No. 20-93.
Accordingly, the Court declines to treat the Army’s Motion to
Dismiss as one for summary judgment and consider the evidence
supporting its purported legitimate reason for rescinding the
offer of employment.
B. A Grant of Discovery is Warranted Mr. Lapotsky argues that since there has been no
opportunity to pursue discovery in this action, the Court should
deny the Army’s request for summary judgment and permit Mr.
Lapotsky to litigate his case and engage in discovery. Pl.’s
Opp’n, ECF No. 13 at 7. The Agency does not respond to Mr.
Lapotsky’s discovery argument. See generally Def.’s Reply, ECF
No. 15. For the reasons explained below, discovery is warranted
in this case.
Under Rule 56(d), 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.” A Rule 56(d)
declaration must outline the particular facts the non-movant
intends to discover and describe why those facts are necessary
to the litigation, explain why the non-movant could not produce
the facts in opposition to the motion for summary judgment, and
8 show that the information is in fact discoverable. Convertino,
684 F.3d at 99-100.
Here, the Army’s motion for summary judgment was filed
prior to discovery. See generally Docket for Civil Action No.
20-93. Mr. Lapotsky, in responding to the Army’s motion, has
identified potential discovery needed to respond to the Army’s
request for summary judgment. See Rule 56(d) Declaration, ECF
No. 13-2. The Army did not respond to the Rule 56(d)
Declaration. See generally Def.’s Reply, ECF No. 15.
Accordingly, the Court will grant Mr. Lapotsky’s request for
discovery. As with any litigant, Mr. Lapotsky is entitled to
discovery of “any matter, not privileged, which is relevant to
the subject matter involved in the pending action.” Fed. R. Civ.
P. 26(b)(1).
9 IV. Conclusion and Order
For the foregoing reasons, it is hereby
ORDERED that the Army’s Motion to Dismiss, or in the
Alternative for Summary Judgment, ECF No. 9 is DENIED; and it is
further
ORDERED that Mr. Lapotsky’s request to take discovery
pursuant to Rule 56(d), see ECF No. 13-2, is GRANTED.
SO ORDERED.
Signed: Emmet G. Sullivan United States District Judge March 22, 2022