MCDANIEL v. VILSACK

Filing 13

MEMORANDUM ORDER denying defendant's motion 8 to dismiss or in the alternative for summary judgment. Signed by Judge Richard W. Roberts on 05/30/2013. (DCL)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_____________________________
)
MARCUS L. MCDANIEL,
)
)
Plaintiff,
)
)
v.
)
Civil Action No. 12-723 (RWR)
)
TOM J. VILSACK,
)
)
Defendant.
)
_____________________________ )
MEMORANDUM ORDER
Plaintiff Marcus McDaniel, an African-American man formerly
employed by the U.S. Department of Agriculture (“USDA”) from
August 2008 to July 2009 as a Safety & Occupational Health
Manager, filed a one-count complaint against the Secretary of
Agriculture, alleging that McDaniel’s supervisors discriminated
against him because of his race and sex in violation of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., by
harassing him and terminating his employment.

The Secretary has

moved to dismiss or for summary judgment, arguing that McDaniel
failed to exhaust his administrative remedies for most of the
allegedly harassing conduct noted in the complaint, and that
other than the termination, the conduct alleged did not rise to
the level of an adverse employment action.

Because the Secretary

does not challenge that the one-count complaint states a
plausible claim of discriminatory termination, the defendant’s
dispositive motion will be denied.

- 2 In August 2008, McDaniel joined the USDA’s National
Resources Conservation Service (“NRCS”) as its Safety and
Occupational Health Manager, subject to a one-year probationary
period.

Compl. ¶¶ 4, 7.

McDaniel was eventually supervised by a

woman named Eloris Speight.

McDaniel’s complaint states a litany

of complaints about Speight - - that Speight actively disliked
McDaniel, that Speight did not approve of having McDaniel’s
position being placed in the Human Resources department, that
Speight frequently pointed out to McDaniel that she could fire
him at any time and for any reason during his probationary
period, that Speight did not provide feedback to McDaniel and
falsely accused him of failing to send her work product, and that
Speight transferred responsibility away from McDaniel.

Id. ¶¶ 9-

10.
On July 31, 2009, while McDaniel was still in his
probationary period, his employment was terminated for
unsatisfactory conduct in performing his job.

Compl. ¶¶ 12-13;

Def.’s Mem. in Supp. of Mot. to Dismiss or for Summ. J. (“Def.’s
Mem.”), Ex. 1.

That September, McDaniel contacted the NRCS Civil

Rights Division to initiate formal counseling.

The counseling

was unsuccessful and in October 2009, McDaniel was notified of
his right to file a formal EEO complaint.

Def.’s Mem., Ex. 2.

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

The USDA sent McDaniel a letter in May 2010 accepting his

- 3 complaint, identifying as issues to be investigated 1) McDaniel’s
July 2009 termination; 2) McDaniel being forced to perform tasks
from August 2008 through July 2009 without receiving feedback;
and 3) Speight intimidating McDaniel from early 2009 through
July 2009 by repeatedly reminding him that he could be removed
from his position without just cause during the probationary
period.

Id., Ex. 3.

In February 2012, an administrative law

judge ruled for the USDA on McDaniel’s complaint.

Id., Ex. 5

at 9.
McDaniel filed his one-count complaint in this action in
May 2012.

The introductory paragraph of McDaniel’s complaint

alleges that the defendant discriminated against him based on his
race and sex by “harassing him, by preventing him from performing
his duties and responsibilities . . . and, ultimately, by
terminating his employment[.]”

Compl. ¶ 1.

In the portion of

the complaint labeled “Prayer for Relief,” the complaint states
that “defendant . . .

discriminated against plaintiff based on

his race and sex by (i) harassing him on the job (ii) preventing
him from performing his duties and responsibilities, and (iii)
terminating his employment with USDA and removing him from the
Federal Service effective July 31, 2009[.]”

Id. ¶ 16.

The Secretary has moved for dismissal under Federal Rule of
Civil Procedure 12(b)(6), or in the alternative for summary
judgment under Rule 56, regarding all of McDaniel’s claims other

- 4 than his claim that he was terminated because of his race and
sex.

Def.’s Mem. at 12.

The Secretary argues that McDaniel

failed to exhaust his administrative remedies for claims other
than his claim based on his termination, and that any claim of
hostile work environment would fail as a matter of law.

Def.’s

Reply at 1.
McDaniel’s response to the Secretary’s motion states that
McDaniel “brought this lawsuit because NRCS management unlawfully
terminated his employment and removed him from the federal
service based on his race and sex.”

Pl.’s Resp. at 1.

McDaniel

explains that the other incidents, such as the purported
harassment and interference with his ability to perform his job,
were offered as “background evidence” to support his properlyexhausted claim about his termination.

Id.; see also Mamantov v.

Jackson, 898 F. Supp. 2d 121, 127 (D.D.C. 2012) (stating that
plaintiffs can, in some circumstances, use prior unexhausted acts
as background evidence in support of timely claims).
Therefore, the Secretary’s motion is moot.

McDaniel has a

one-count complaint alleging that his termination was the result
of race and sex discrimination, and the Secretary does not attack
that cause of action.1

1

Accordingly, it is hereby

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

- 5 ORDERED that the Secretary’s motion [8] to dismiss, or in
the alternative for summary judgment be, and hereby is, DENIED as
moot.
SIGNED this 30th day of May, 2013.
/s/
RICHARD W. ROBERTS
United States District Judge

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