United States District Court, E.D. Virginia, Alexandria Division
issue in this Title VII employment discrimination case is
defendant's Motion to Dismiss plaintiffs Amended
Complaint pursuant to Rules 12(b)(1) and 12(b)(6), Fed. R.
Amended Complaint, plaintiff asserts one hostile work
environment claim against defendant, alleging that defendant
discriminated against plaintiff on the basis of his race
(South Asian), national origin (Indian), and religion
(Muslim). Defendant argues that the Amended Complaint should
(i) because plaintiff raised several of the allegedly
discriminatory actions that form the basis of his hostile
work environment claim as part of a union grievance process
which plaintiff then failed to exhaust,
(ii) because several of the allegedly discriminatory actions
are untimely, and
(iii) because the allegedly discriminatory actions are not
sufficiently severe or pervasive to state a claim for hostile
opposes defendant's motion, arguing (i) that the
untimeliness of the allegedly discriminatory actions must be
overlooked because the conduct is part of a continuing
violation and (ii) that defendant's conduct, as a whole,
is sufficiently severe and pervasive to state a hostile work
environment claim. These issues have been fully briefed and
argued and are now ripe for disposition.
reciting the pertinent facts, it is important to identify the
proper source of those facts. First, as the parties agree and
as settled precedent requires, the facts recited here are
taken chiefly from the Amended Complaint's factual
allegations, which must be accepted as true at this stage.
Cozzarelli v. Inspire Pharm. Inc., 549 F.3d 618, 625
(4th Cir. 2008) (noting that at the motion to dismiss stage,
"we must accept plaintiffs' factual allegations as
true"). Defendants have also sought to have additional
facts considered by attaching various exhibits to the motion
to dismiss. For the reasons described below, these
documents are appropriately considered at this stage.
as here, a party challenges subject matter jurisdiction
pursuant to Rule 12(b)(1), Fed. R. Civ. P., the Fourth
Circuit has made clear that the plaintiff s jurisdictional
allegations are "mere evidence" and evidence
outside the pleadings may properly be considered without
converting the motion to dismiss into a motion for summary
judgment. See Richmond, Fredericksburg & Potomac R.R.
Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991);
Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982).
Accordingly, it is appropriate to consider exhibit 2 of
defendant's motion to dismiss, which includes the records
from plaintiffs union grievance proceedings. See
Doc. 13 Ex. 2.
respect to a motion to dismiss pursuant to Rule 12(b)(6),
Fed. R. Civ. P., settled circuit authority permits courts to
consider external documents when they "are integral to
and explicitly relied on in the complaint, and when the
plaintiffs do not challenge the document's
authenticity." Zak v. Chelsea Therapeutics
Int'l, Ltd., 780 F.3d 597, 606-07 (4th Cir. 2015)
(quotation marks and brackets omitted). Here, the EEO
documents attached as exhibits 1 and 3 to defendant's
motion to dismiss are integral to, and explicitly relied on,
in the Amended Complaint as the Amended Complaint states that
plaintiff "timely contacted an EEO counselor and . . .
timely filed a formal EEO complaint of discrimination based
on his race, national origin and religion ... ." Am.
Compl. ¶¶ 9-10. Nor does plaintiff challenge the
authenticity of the EEO documents attached to defendant's
motion to dismiss. Accordingly, it is also appropriate to
consider the documents defendant attached in exhibits 1 and
3, including plaintiffs EEOC complaint and accompanying
attachments, the various agency actions, and the EEO
counselor's inquiry report. In sum, all the documents
attached to defendant's Motion to Dismiss the original
complaint are appropriately considered, in accordance with
settled law in this circuit, without converting this motion
to a Rule 56 motion.
Imran Mustafa, is a resident of Maryland and a former patent
examiner at the PTO where he was a member of the Patent
Office Professional Association ("POP A")
bargaining unit. Plaintiff identifies his race as South
Asian, his national origin as Indian, and his religion as
Muslim. Defendant, Andrei Iancu, is the head of the PTO, the
agency responsible for the alleged discrimination.
Amended Complaint alleges that plaintiff was employed as a
patent examiner at the PTO for approximately 10 years.
Throughout his time at the PTO, plaintiff received positive
comments on his performance and high ratings on performance
evaluations. On April 20, 2015, plaintiff received and signed
a performance evaluation providing plaintiff with a
"Fully Successful" rating. Specifically, plaintiff
received a "Fully Successful" rating for his
Quality, a "Commendable" rating for his
Productivity, a "Fully Successful" rating for his
Docket Management, and an "Outstanding" rating for
his Stakeholder Interaction. On April 27, 2015, shortly before
plaintiff left for a two-week vacation to India, plaintiff
was provided with a second performance evaluation which rated
his performance as "Marginal, " and changed his
Docket Management rating to "Marginal." Plaintiff
refused to sign this new performance evaluation.
April 30, 2015, before boarding his flight to India,
plaintiff received a call from his father informing plaintiff
that plaintiffs supervisor was trying to get in touch with
plaintiff about an emergency at work. When plaintiff called
his supervisor, plaintiffs supervisor told plaintiff that
plaintiff needed to sign the new performance evaluation or
else plaintiff would have an embarrassment upon his return
from India. Although the Amended Complaint does not specify
what happened upon plaintiffs return from India, the Amended
Complaint does allege that immediately after plaintiff
refused to sign his performance evaluation, plaintiff was
denied a deserved Within Grade Increase ("WGI").
Amended Complaint further alleges that shortly thereafter,
plaintiff gave a presentation and Khoi Tran
("Tran"), a supervisor who was involved in the
denial of plaintiff s WGI, argued with plaintiff during his
presentation. After the presentation, Tran asked to meet with
plaintiff. During the meeting, the Amended Complaint alleges
that Tran named several employees of plaintiffs same national
origin and race and stated "you people like to do your
work in a certain way." Am. Compl. ¶ 24.
7, 2015, pursuant to Article 11 of the collective bargaining
agreement ("CBA") between POPA and the PTO, POPA
filed an informal grievance with the PTO on behalf of
plaintiff, arguing that the PTO wrongfully denied plaintiffs
WGI. Specifically, POPA requested that the PTO reinstate the
WGI as of April 2015.
the same time, in the summer of 2015, the PTO issued a
vacancy announcement for a Supervisory Patent Examiner
position in plaintiffs department. Plaintiff applied for the
position and was interviewed in August 2015. On August 26,
2015, plaintiff was not selected for the position. The
Amended Complaint alleges that this occurred despite the fact
that plaintiff was the most qualified and experienced
candidate of all the applicants. Indeed, the candidate
selected for the supervisory position, who is not South
Asian, Indian, or Muslim, did not have the same specialized
experience or Master's degree as plaintiff.
October 6, 2015, plaintiff met with PTO management and POPA
representatives to discuss his July 7, 2015 informal
grievance; at this meeting, plaintiffs POPA representatives
also alleged that plaintiffs supervisor created a hostile
work environment when he contacted plaintiffs father to urge
plaintiff to sign his performance evaluation. One month
later, on November 15, 2015, the PTO denied in part and
granted in part plaintiffs informal grievance, rejecting
plaintiffs request for a WGI and determining that plaintiffs
supervisor's actions were not sufficiently severe to
constitute a hostile work environment. Thereafter, on March
31, 2016, POPA filed a formal ...