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Mustafa v. Iancu

United States District Court, E.D. Virginia, Alexandria Division

May 15, 2018

ANDREI IANCU, Defendant.


          T. S. Ellis, Judge

         At issue in this Title VII[1] employment discrimination case is defendant's Motion to Dismiss plaintiffs Amended Complaint pursuant to Rules 12(b)(1) and 12(b)(6), Fed. R. Civ. P.

         In the 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 be dismissed:

(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 work environment.

         Plaintiff 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.


         Before 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.[2] For the reasons described below, these documents are appropriately considered at this stage.

         Where, 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.

         With 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).[3] 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.


         Plaintiff, 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.

         The 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.[4] 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.

         On 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").

         The 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.

         On July 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.

         Around 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.

         On 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 ...

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