PASCHAL v. NUSS, No. 1:2013cv01608 - Document 30 (D.D.C. 2014)
Court Description: MEMORANDUM OPINION to the Motion to Dismiss, or in the Alternative, for Summary Judgment and the Motion for a Stay to Obtain Discovery. Signed by Judge Gladys Kessler on 8/26/14. (CL, )
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA TONY E. PASCHAL, Plaintiff, v. Civil Action No. 13-1608 (GK) DISTRICT OF COLUMBIA, Defendant. MEMORANDUM OPINION Plaintiff Tony E. Paschal ("Plaintiff" or "Paschal") brings this action ("Defendant") violation against Defendant the of the Americans §§ with Disabilities Judgment Dismiss [Dkt. Opposition, or No. in part and in 18]. and Reply, reasons stated below, denied Act of 1990 12203, 12132, and 12112(a). This matter is presently before the Court to Columbia for retaliation and a hostile work environment in ("ADA"), 42 U.S.C. Motion of District the Upon Alternative Motion consideration the entire on Defendant's of record herein, for Summary the Motion, and for the Defendant's Motion to Dismiss is granted in part, Defendant's Motion for Summary Judgment is denied without prejudice, and Plaintiff's Motion for a Stay to Obtain Discovery is denied as moot. I . BACKGROUND Factual Background 1 A. On October 29, 2010, Plaintiff Tony E. Paschal started work as a Business Relations Specialist with the District of Columbia Department on Complaint Disability ~~ ("SAC") 2, Services 10. DDS ("DDS"). is a Second service Amended provider and advocate for individuals with disabilities seeking employment in ~~ the District of Columbia. SAC included outreach and 8-9. Plaintiff's duties for DDS engagement with employers relationships with the business community. SAC ~ to 10. create Plaintiff would leverage those relationships to find job opportunities for qualified DDS clients. SAC Plaintiff arthritis, major has which life disabilities. he ~ 10. lupus, type alleges activities, SAC ~ 6. and 1 diabetes, substantially are thus and limit rheumatoid one properly or more considered Plaintiff informed DDS of the nature of his disability when he was hired. SAC ~ 11. 1 Defendant has requested Summary Judgment in the alternative to his Motion to Dismiss, but for the reasons set forth below, Summary Judgment is premature at this time. For purposes of ruling on a motion to dismiss, the factual allegations of the complaint must be presumed to be true and liberally construed in favor of the plaintiff. Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 15 (D.C. Cir. 2 008) ; Shear v. Nat' l Rifle Ass' n of Am., 606 F. 2d 1251, 1253 (D.C. Cir. 1979). Therefore, the facts set forth herein are taken from the Second Amended Complaint ("SAC") [Dkt. No. 11]. -2- Plaintiff alleges direct supervisor, negative, that beginning in November of 2011, Sylvia "repeatedly Bailey-Charles, derogatory statements to his made [him] and other staff about people with disabilities--in particular, the agency's clients." SAC ~~ 12, 13. The only such comment specifically alleged in his SAC, however, is that Ms. Bailey-Charles once disabled persons should be "cleaning toilets [are] handicapped." ~ SAC 13. On one commented that because they . occasion, "Ms. Bailey- Charles sent job notices for janitorial and dishwashing work to a [DDS] client who was a former practicing physician with a medical degree." Id. Plaintiff decided to meet with an EEO counselor to discuss his concerns about Ms. Bailey-Charles. scheduling a meeting for May 2, his online work calendar, Id., 2012, SAC ~ 14. Despite which Plaintiff noted on it did not take place until May 29, 2012. In with the Ms. interim, on or Bailey-Charles Operations Manager for Services Administration. Charles indicated that noting his date about and May Sharon the District SAC ~ 15. 22, 2012, Plaintiff Vaughn-Roach, of At the meeting, she had read Plaintiff's that Ms. Bailey-Charles made -3- Program Columbia Rehabilitation Ms. Bailey- calendar entry for meeting with an EEO counselor. Plaintiff contends the met SAC ~ 15. two threats at that meeting: (1) to lower his pay grade, and (2) ~ a Performance Improvement Plan ("PIP"). SAC On May Prince. SAC ~ On June Plaintiff based on 2012, 29, Paschal 2012, Ms. met with to put him on 15. EEO Counselor David 17. 26, and Bailey-Charles stated that the alleged "lack his decision of forwarded to issue a the PIP PIP was during performance" to the performance period that ran from October 2011 through September 2012. SAC ~ 18. On August 13, Discrimination with Rights ("OHR"), on basis the 2012, the District of filed Columbia Charge a Office of of Human alleging that he had been discriminated against of disability. since filing that charge, Ms. Plaintiff Bailey-Charles. again met with Ms. SAC~ SAC ~ 2 0. Plaintiff he continues to feel 21. that "intimidated" by On November 29, Bailey-Charles and Ms. claims 2012, Plaintiff Vaughn-Roach. Id. At that meeting, he felt that the two managers "bull[ied]" him, but did not allege any specific actions. Id. In November 2012, at Ms. Bailey-Charles' behest, Plaintiff stopped attending networking events and other meetings that he had routinely attended as part of his work. SAC ~ 22. Plaintiff alleges that the events and meetings were "prime opportunities" to network on behalf of DDS's clients and that exclusion from -4- these contacts interfered with his ability to perform his duties. SAC~ job 22. On December 12, negative Annual 2012, Ms. Bailey-Charles gave Plaintiff a Performance Evaluation, rating him a "Marginal Performer" for the period from October 1, 2011 through September SAC~ 30, 2012. 23. On December 27, 2012, Plaintiff met with Ms. Bailey-Charles and Ms. Vaughn-Roach for his Annual 24. that At meeting, both Performance Review. managers threatened Plaintiff s employment or to demote him. SAC 1 ~ to SAC ~ terminate 24. On February 12, 2013, Ms. Bailey-Charles informed Plaintiff that she would change his job description, although that change did not occur because of certain provisions in Plaintiff,s union contract and DDS personnel procedures. SAC On May finding No environment 15, 2013, Probable and OHR issued for Cause retaliation a B. of Plaintiff s claims. ~ 25. Letter submitted a request for reconsideration, OHR affirmed its findings. SAC ~ 1 SAC ~ Determination hostile 29. He work timely and on July 24, 2013, 30-31. Procedural Background On October 21, 2013, Paschal filed his Complaint, alleging retaliation and hostile work environment under the ADA [Dkt. No. -5- 1] . On January 24, 2014, Plaintiff filed his Second Amended Complaint [Dkt. No. 11]. On February 18, 2014, Defendant filed a Motion to Dismiss or in the Alternative Motion for Summary Judgment [Dkt. No. 18]. On March 7, 2014, Plaintiff submitted a Rule 56(d) Motion for a Stay to Obtain Discovery Points and Authorities [Dkt. No. 21] and a Memorandum of in Opposition to Defendant's Motion to Dismiss or in the Alternative Motion for Summary Judgment, and in Support of Plaintiff's Rule 56(d) Motion [Dkt. No. 22]. II. STANDARD OF REVIEW To survive Rule 12(b) (6), state a claim to relief that is plausible on its face" and to "nudge[ [his or plaintiff her] a motion need only plead to dismiss "enough under facts to a claims across the line from conceivable to plausible." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Id. at 563. Under the Twombly standard, a "court deciding a motion to dismiss must not make any judgment about the probability of the plaintiffs' success . the complaint are true [,] must assume all the allegations in (even if doubtful in fact) [, and] must give the plaintiff the benefit of all reasonable inferences -6- derived from the facts alleged." Aktieselskabet AF 21. November 2001 v. Fame (internal Jeans Inc., quotation marks will not suffice, 525 F.3d 8, 17 (D.C. Cir. and citations omitted). however, if it "tenders 2008) A complaint 'naked assertion[s]' devoid of 'further factual enhancement.'" Ashcroft v. Iqbal, 556 u.s. 662, (2009) 678 (quoting Twombly, u.s. 550 at 557) hostile work (alteration in Iqbal). III. ANALYSIS A. In Hostile Work Environment order environment, employer to adequately Plaintiff must him subjected plead allege claim facts of showing "that his intimidation, 'discriminatory to ridicule, and insult' a 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an Baloch v. abusive working environment. '" 1191, 1201 (D.C. Inc., 510 U.S. Cir. 17, 21 2008) (quoting Harris v. (1993)). work environment exists, including the conduct, severity, its interferes Faragher v. with an 550 F.3d Forklift Sys., "To determine whether a hostile the court looks to the totality of the circumstances, its Kempthorne, frequency of the offensiveness, employee's work City of Boca Raton, discriminatory and performance." 524 U.S. 775, whether it Id. (citing 787-88 (1998)). The Supreme Court has made clear that in order to prevent anti-7- discrimination laws from becoming a "offhand and comments, serious) and isolated "general civility code [,]" incidents (unless extremely will not amount to discriminatory changes in the terms conditions of employment." Faragher, u.s. 524 at 788 (internal citations and quotation marks omitted). Plaintiff on which to has base Bailey-Charles' "cleaning ( 2) Ms. made his only two hostile comment work that toilets because Bailey-Charles' specific, factual environment disabled claim: (1) Ms. should be handicapped [;]" and persons they were transmission allegations of job for notices janitorial and dishwashing work to a disabled former practicing physician. SAC ~ 13. With court respect should to assume they plausibly give 556 U.S. at 679. standard. "well-pleaded factual their veracity and rise to allegations[,]" then an entitlement determine to the two examples Plaintiff provides are amount to actionable harassment." Smith v. Jackson, 1126, 1134 (D.D.C. 2008) (quoting Stewart v. [that] do not 539 F. Evans, 275 Supp. F.3d (D.C. Cir. 2002)). Plaintiff made Iqbal, These two instances simply do not satisfy this Without more, 138 whether relief." the very "isolated incidents of offensive conduct 2d 116, "a negative, does allege derogatory that "Ms. statements -8- Bailey-Charles about repeatedly people with disabilities[.]" SAC , single, quoted Plaintiff has Defendant's 13. However, comment not is met conduct taken his was as burden. even if Ms. Bailey-Charles' a representative Plaintiff "sufficiently severe must or example, show that pervasive to alter the conditions of the victim's employment and create an abusive working environment." Baloch, 550 F.3d at 1201 (internal citations Charles' and quotation omitted). Because Ms. Bailey- comment--even if repeated--does not rise to this level of severity. B. Count II of the Complaint shall be dismissed. Retaliation A well-pleaded [the marks plaintiff] retaliation engaged in claim must protected allege that: ( 2) activity, "(1) [the plaintiff] was subjected to adverse action by the employer, and (3) there existed a causal link between the adverse action and the protected Auth., 205 activity." F.3d 428, Jones (D.C. 433 v. Cir. Wash. Metro. 2000) Area Trans. (internal citations omitted); Taylor v. Solis, 571 F.3d 1313, 1320 (D.C. Cir. 2009) ("In order to prevail upon a claim of unlawful retaliation, employee must consequence action against omitted)). that he of show she which engaged her employer her." (internal Plaintiff protected took a citations argues--and "engaged in a in Defendant activity, materially and quotation does not as an a adverse marks contest-- statutorily protected activity when he -9- scheduled a meeting with an EEO counselor." SAC therefore, must determine whether the ~ 34. The Court, conduct alleged by Plaintiff constitutes an adverse action, and if so, whether the pleadings and all reasonable inferences to be drawn from them plausibly present a causal link between the EEO meeting and the alleged retaliatory conduct. Aktieselskabet, 525 F.3d at 17; Jones, 205 F.3d at 433. Adverse Action 1. "Adverse actions in broader sweep of actions the retaliation than those in a context encompass pure discrimination claim." Baloch v. Kempthorne, 550 F.3d 1191, 1198 n.4 2008) (internal quotation marks omitted) . a (D.C. Cir. Retaliation actions are "not limited to [those] that affect the terms and conditions of employment." Burlington N. U.S. 53, 'could 64 well supporting F.3d 809, 548 (2006) . charge 817-18 u.s. annoyances" at are a of (D.C. 57) . Santa Fe Ry. Co. v. White, "A materially adverse action is one dissuade a & reasonable worker discrimination.'" Cir. 2010) However, normally not from 54 8 that making or Shah, 606 Porter v. (quoting Burlington Northern, slights, "petty enough to deter [and] minor workers from exercising their rights. Burlington Northern, 548 U.S. at 68. Plaintiff contends that several of Defendant's actions were materially adverse: Ms. Bailey-Charles' -10- threat and eventual imposition of the PIP, her assignment of a "Marginal Performer" rating, her threat to lower Plaintiff's pay grade, Charles' and Ms. Vaughn-Roach's threat Ms. Bailey- to terminate or demote Plaintiff, the change in work duties and later threat to change Plaintiff's job description, intimidation and sense that Ms. Plaintiff's and feeling Bailey-Charles and Ms. of Vaughn- Roach tried to "bully" him. a. Plaintiff's Improvement Perfor.mance Rating Improvement Plan "Marginal Plan ("PIP") Performer" are best Perfor.mance and rating and considered Performance simultaneously because our Court of Appeals has held that together such actions may constitute an adverse action. Porter v. Shah, Cir. 606 F.3d 809, 818 (D.C. 818, as support for his contention that both the rating and the 2010). Plaintiff points to Porter, PIP constitute materially adverse actions Opp'n at 10. Defendant contends that 606 in this Porter F.3d at case. held Pl. 's that a particular performance report was not an adverse action "because it did not affect plaintiff's 'position, grade level, salary, or promotion opportunities.'" Def. 's Reply at 4 (quoting Porter, 606 F.3d at 818) . 2 2 Defendant also argues that the facts of this case are distinct from those in Porter because Plaintiff in this case successfully completed his PIP and successfully appealed his -11- In fact, reviews. Porter involved two separate interim performance 606 F.3d at 818. The first "was delivered orally, with no written record placed in Porter's personnel files, and it was superseded by his year-end annual review." Id. The Court of Appeals ruled that this evaluation was not an adverse action. Id. The second evaluation, delivered in a subsequent year, in writing [and] despite a personnel . was placed in Porter's personnel file[,]" policy that files. Id. accompanied by a PIP. that " [g] i ven position, second, the normally excluded Moreover, the second serious consequences salary, omit ted) from evaluation negative (citing assessment Baloch, affecting was Porter's or promotion opportunities, together constituted a material adverse action." marks interim reviews Id. This time, the Court of Appeals ruled grade level, written] "was 550 Id. F.3d with [a] [the PIP (internal quotation at 1199; Taylor v. Solis, 571 F.3d 1313, 1321 (D.C. Cir. 2009)). Plaintiff alleges that Defendant gave him both a negative performance rating and placed him on a PIP for the performance period that ran from October 2011 to September 2012. SAC 23. Plaintiff further ~~ 18, alleges that the "negative performance evaluation and the PIP exposed [him] to [potential] removal or performance rating. Def. 's Reply at 4-5. Since that argument rests on facts that are not alleged in Plaintiff's pleadings, it cannot be addressed properly in a Motion to Dismiss. -12- reassignment, and responsibilities Defendant's second they and alleged evaluation had a promotion actions are considered effect detrimental opportunities." therefore by the on 36. SAC analogous Porter his to Court the and consequently, qualify as materially adverse actions. 3 Plaintiff need not allege that he was denied a promotion, discharged, or received a salary reduction; he "must point to an action that adverse." (D.D.C. a reasonable employee would have Bonnette 2012) v. Shinseki, 907 F. found materially Supp. (internal quotation marks omitted). 2d 54, 69-70 Plaintiff has done so here. 3 Defendant looks to other authority to support its view. Citing Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003) and Brown v. Brody, 199 F.3d 446, 457-58 (D.C. Cir. 1999), Defendant contends that a PIP or a negative review can constitute adverse actions only when accompanied by a present effect on grade or salary. Def.'s Mot. at 11-12. However, the Supreme Court's more recent opinion in Burlington Northern, 548 U.S. at 64, makes clear that adverse actions are "not limited to discriminatory actions that affect the terms and conditions of employment." Our Court of Appeals has concluded that the retaliation standard applied in Brown v. Brody--that a plaintiff must show a materially adverse change in the terms and conditions' of employment--was abrogated by Burlington Northern. Steele v. Schafer, 535 F.3d 689, 692-696 (D.C. Cir. 2008). Moreover, in Porter (decided after Burlington Northern) our Court of Appeals made no finding that Melvin Porter had in fact experienced a reduction in grade or salary. Instead the Court found that "the rating and the PIP could expose him to removal, reduction in grade, withholding of within grade increase or reassignment." Porter, 606 F.3d at 818 (emphasis added). -13- b. Threats of Demotion and Ter.mination Plaintiff alleges that Ms. Bailey-Charles threatened him on two occasions. First, on or about May 22, 2012, Ms. Bailey- Charles "threatened to lower [Plaintiff]'s pay grade or put him on a [PIP]." SAC ~ 15. Second, in a meeting on December 27, 2012 to discuss his annual performance evaluation, Charles and Ms. Vaughn-Roach "threatened ~ [Plaintiff's] employment or demote him." SAC The both Ms. Bailey- terminate to 24. threats of demotion and termination were made during conversations Performance" with Plaintiff evaluation. context--therefore, about The the PIP threats--and provide strong and their support to "Marginal timing and Plaintiff's allegation that the "negative performance evaluation and the PIP exposed [him] to removal or reassignment." SAC c. Plaintiff relies ~ 36. Change in Duties and Proposed Change in Job Description exclusively on Burlington Northern to support his argument that denial of the opportunity to attend networking action. weak events and other meetings Pl. 's Opp' n at 11-12. support for constituted That case, Plaintiff's position. 4 4 however, an adverse offers only Burlington Northern Plaintiff, however, is correct to point out that Burlington Northern supersedes previous precedent in this Circuit that would have required adverse actions that affect "the terms and -14- involved the transfer laborer position. of There, a forklift "the operator jury had before to a general it considerable evidence that the track laborer duties were by all accounts more arduous and required dirtier; more prestige; that the considered a resented [the plaintiff] 548 U.S. at the qualifications, and objectively that 71. The forklift which an is job and the position indication of position was operator forklift better operator male employees for occupying it." Burlington Northern, conduct Plaintiff alleges does not come close to the conduct in Burlington Northern. Our engage Court in of judicial second-guessing qualified Appeals has made micromanagement employers' employees Baloch v. Kempthorne, will clear of decisions work on did processing require[ing] not 550 F.3d 1191, 1197 of her [an take an adverse employee's] practices by which of several assignment." (D.C. Cir. 2008); see action cases to particular e.g., Taylor v. Solis, 571 F. 3d 1313, 1321 employer "hesitancy business about a its (D.C. Cir. 2009) by "slow[ing] (an the and . to submit biweekly reports on the status of her work.") . Accordingly, it has held that an employee did not suffer "materially adverse consequences" when he "no longer conditions of employment" in order to make out a claim. Steele v. Schafer, 535 F.3d 689, 692-696 2008) . -15~~~~~~~~~~~ retaliation (D.C. Cir. attended management meetings or received management-related emails and other communications" for "several months [.]" Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C. Cir. 2002). Plaintiff must show that the change in his duties were not just "petty slights" but "could well worker from making or supporting a Burlington Northern, 548 u.s. dissuade a reasonable charge of discrimination." at Denial 68. 57, of the opportunity to attend networking events and meetings falls short of that requirement. Finally, description, Plaintiff states that the proposed change in job if it had come to pass, "would have been more onerous, or would have involved 'duties that are less desirable than others.'" 548 U.S. support Pl.'s Opp. at 70) . However, his speculation. at 12 (quoting Burlington Northern, he offers no factual "Alleged harms" allegations to that fall short of "firing or a significant change in benefits" "must not be unduly speculative." Cir. 2013) Consequently, Bridgeforth v. (internal Jewell, citations and 721 F.3d quotation 661, marks 663 (D.C. omitted) . the change in duties and proposed change in job description do not, as alleged, constitute adverse actions. d. Finally, Bullying and Intimidation Plaintiff contends that he felt "intimidated" and "bull[ied]" in a meeting with Ms. Bailey-Charles and Ms. Vaughn-16- Roach. sort ~ SAC of 21. Plaintiff's contentions, without more, are the "petty slights, minor annoyances, and simple lack of good manners" that are not actionable as retaliation. Burlington Northern, 548 U. 8. at 68. Moreover, held that even "disproportionate" constitute the disagreements purposes variety [that] of of do retaliation Consequently, these our Court of Appeals has "profanity-laden yelling" may "sporadic not verbal qualify claims." as altercations adverse actions Baloch, do allegations 550 constitute not F.3d at or for 1199. adverse action. Although, the level not all of Defendant's alleged conduct rises to of a materially adverse action, Plaintiff's allegations related to the threats, negative performance review, and PIP are enough to adequately plead his retaliation claim. 2. Causal Link Between Protected Activity the Adverse Defendant argues that because "Plaintiff that [Ms.] Bailey-Charles or [Ms.] Action [did] Vaughn-Roach and the not allege specifically linked his calendar entry to pay or the proposed PIP[,]" there is no sufficient causal link between the protected activity and alleged adverse action. Def.'s Mot. at 5. Defendant is mistaken. A "causal connection may be established by showing that the employer had knowledge of the employee's protected activity, -17- and that the adverse activity." 2006) . action took place shortly after that Rochon v. Gonzales, 438 F.3d 1211, 1220 (D.C. (quoting Mitchell v. Baldridge, 759 F.2d 80, 86 (D.C. Cir. 1985)); see also Alston v. D.C., 561 F. Supp. 2d 29, 43 2 008) Cir. ("a close temporal connection between the (D.D.C. protected activity and the adverse action can indeed support an inference of causation.") Defendant protected (internal quotation marks omitted). does activity not when dispute he that scheduled counselor. Nor does Defendant dispute with EEO the demonstrated counselor her Plaintiff was knowledge a meeting that the Plaintiff. ~ SAC 15. She took protected the an EEO Bailey-Charles Ms. threatened an adverse action in her May 22, with with in the actual meeting protected. of engaged activity 2012, and conversation threatened action by placing Plaintiff on a PIP just over a month thereafter on June 26, SAC~ 2012. question that 18. a Based on these plausible causal allegations, relationship there is no has been adequately pleaded. Defendant also argues that "[f]rom the facts alleged, it is as likely performance that [P]laintiff problems, as it was is placed that it on was seeing an EEO counselor." De£.' s Reply at 4. required, however, a PIP because retaliation for Plaintiff "is not in order to state a claim of retaliation, -18- of to allege facts sufficient to negate [Defendant's] alternative explanations for its actions-whatever they may turn out to be." Rochon, all 43 8 F. 3d at 122 0. reasonable Aktieselskabet, infer that Given that Plaintiff is entitled to inferences that 52 5 F. 3d at 17, Ms. he which "engaged [his] [him]" from his allegations, it is more than reasonable to Bailey-Charles because of his EEO meeting. that arise was retaliating against him Plaintiff has sufficiently alleged in protected activity, as a consequence of employer took a accordingly, and materially adverse action against adequately has pleaded his claim of unlawful retaliation. Taylor, 571 F.3d at 1320. C. In Motion for Summary Judgment and Motion to Stay the requests alternative to Summary Judgment Complaint. Def. 's Mot. its on [Dkt. Motion Counts No. I to Dismiss, and II of Defendant Plaintiff's 18] . Plaintiff asks the Court to deny Defendant's Motion for Summary Judgment as premature and to treat the District's motion purely as a motion to dismiss. Pl.'s Opp'n at 19 [Dkt. No. 22]. In the alternative, Plaintiff requests a Stay to Obtain Discovery pursuant to Fed. R. Civ. P. 56(d). Pl.'s Mot. for a Stay to Obtain Disc. At the time of Defendant's Motion, [Dkt. 21] no discovery had been had by either party. Pl.'s Mot. for at Stay to Obtain Discovery at 1. Ordinarily, that alone -19- would make summary judgment premature. Hollabaugh v. Office of the Architect of the Capitol, 847 F. Supp. 2d 57, 60 (D.D.C. 2012) (holding that a motion for summary judgment was premature in employment discrimination suit where no discovery had been conducted). The Court notes, moreover, that Defendant--prior to filing its Motion for Summary Judgment--requested a stay of discovery. See Joint Status Report (July 30, clear that Procedure, 2014) [Dkt. No. 27] . "fundamentally, Our Court of Appeals has made under when a Rule 12(b) (6) the Federal Rules of Civil motion to dismiss is converted into a motion for summary judgment, all parties must be given a reasonable opportunity to present all material made pertinent to such a motion by Rule 'reasonable 56 [, opportunity' and] it includes is the settled that opportunity the term to pursue reasonable discovery." First Chicago Int' l v. United Exch. Co. , Ltd. 836 I Defendant's F.2d 1375, Motion 1380-81 for Summary (D.C. Cir. Judgment 1988). is Therefore, denied without prejudice. IV. CONCLUSION For the foregoing reasons, Defendant's Motion to Dismiss is granted in part and denied in part, Defendant's Motion Summary Judgment is denied without prejudice and Plaintiff's -20- for Motion for a Stay to Obtain Discovery is denied as moot. An Order shall accompany this Memorandum Opinion. August~, 2014 Judge Copies to: attorneys on record via ECF -21-
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