Tommy Ho v. Merrick Garland

 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued January 12, 2024                 Decided July 2, 2024

                        No. 22-5219

                        TOMMY HO,
                        APPELLANT

                              v.

    MERRICK B. GARLAND, IN HIS OFFICIAL CAPACITY AS
      ATTORNEY GENERAL OF THE UNITED STATES,
                     APPELLEE


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:21-cv-01035)


       Mohammad Mujtaba Ali, appointed by the court,
argued the cause for appellant as amicus curiae in support of
appellant. With him on the brief was Hilary P. Gerzhoy.

        Johnny H. Walker, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Brian P. Hudak,
and Jane M. Lyons, Assistant U.S. Attorneys. Thomas Duffey
and R. Craig Lawrence, Assistant U.S. Attorneys, entered
appearances.

     Before: KATSAS and GARCIA, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
                               1

    Opinion for the Court filed by Circuit Judge GARCIA.

     GARCIA, Circuit Judge: The question in this case is
whether pro se appellant Tommy Ho adequately pled that his
employer declined to promote him in retaliation for activity
protected by Title VII. Though the question is close, reading
Ho’s complaint as a whole and favorably to him, we conclude
that he has done so.
                               I
                               A
     Because this case comes to us on review of a motion to
dismiss, we accept the factual allegations in Ho’s complaint as
true. Bell Atl. Corp. v. Twombly, 

 (2007).
Tommy Ho is an Asian American who has worked for the
federal government since 1999. Compl. ¶¶ 6, 13, Ho v.
Garland, No. 21-cv-1035 (D.D.C. Apr. 12, 2021), ECF No. 1.
From May 2015 to October 2019, he was employed as a GS-13
criminal investigator in the Office of Strategic Intelligence and
Information (“OSII”) of the Bureau of Alcohol, Tobacco,
Firearms, and Explosives (“ATF”) in Washington, D.C. Id.
¶ 13.
     In 2015, Ho filed an Equal Employment Opportunity
(“EEO”) complaint alleging that ATF racially discriminated
against him by involuntarily transferring him to OSII. Id. ¶ 15.
In 2017 and 2018, Ho applied for three GS-14 promotions, but
was not selected for any of them. Id. ¶ 16. Ho filed two EEO
complaints alleging that two of those non-selections were due
to retaliation. Id. In those EEO complaints, Ho identified OSII
Assistant Director James McDermond, OSII Operation
Intelligence Division Chief Kevin O’Keefe, and OSII Field
Intelligence Support Branch Chief Edward Kropke as
“Responsible Management Officials.” Id. ¶ 18. Each either
                              2

answered interrogatories or was deposed in the subsequent
proceedings. Id.
    This case centers on Ho’s application for another GS-14
position in June 2019, this time as a program manager in the
OSII’s Internet Investigation Center. Id. ¶ 19. The position
was originally advertised to lateral GS-14 applicants, but no
one applied. Id. ¶ 25. Because there was a “need” for the
position, OSII opened the position to GS-13 applicants like Ho.
Id. At that point, McDermond was Ho’s fourth-line supervisor,
and O’Keefe was his second-line supervisor. Id. ¶ 21. O’Keefe
had previously given Ho positive performance appraisals for
2018 and 2019. Id. ¶ 26. Ho had experience in conducting
criminal investigations through the Internet, Opp’n to Mot. to
Dismiss 4, Ho v. Garland, No. 21-cv-1035 (D.D.C. Dec. 7,
2021), ECF No. 9, and O’Keefe had “stated he was aware that
[Ho] has experience in conducting Internet investigations,”
Compl. ¶ 26, and had “solid skills and investigative
knowledge,” Opp’n to Mot. to Dismiss 6. On August 8, 2019,
ATF Human Resources told Ho he was “among the best
qualified for the position.” Compl. ¶ 19.
     On August 28, 2019, a four-member panel, which
consisted of O’Keefe, Kropke, and two other officials,
interviewed Ho and three other applicants. Id. ¶¶ 20, 23.
O’Keefe was the “primary member of the panel.” Id. ¶ 23.
According to O’Keefe, at “some point” during “the selection
process,” McDermond “intervened or spoke[] to the . . . panel
and told or suggested [to] the panel they could choose not to
make a selection.” Id. ¶ 24. A day after the interview, on
August 29, 2019, Ho was notified that no one was selected for
the position. Id. ¶ 22.
   Ho asked O’Keefe why no one was chosen. Id. ¶ 23.
O’Keefe “repeatedly stated [that] all four applicants were
                                3

qualified,” id. ¶ 24, but that two applicants “had outside factors
that disqualified them,” id. ¶ 23. O’Keefe then said that Ho and
the remaining applicant “did not answer the interview
questions well enough.” Id. O’Keefe acknowledged that Ho
“knocked it out of the park” on some questions, “suggesting
[Ho] received perfect scores on those questions.” Id. O’Keefe
nevertheless stated that “he made a judgment based on the
answers” that “neither [Ho] nor the other applicant w[as] suited
for the position.” Id. ¶ 24. O’Keefe also stated that “he did not
provide the . . . panel with any remarks relating to [Ho] that
would deter his suitability for the position.” Id. ¶ 26. Although
there was a “need” to fill the position, O’Keefe said that he was
“unsure what OSII will do with the position,” and that it “may
or may not be re-announced or it may be filled by [a] lateral
GS-14 or by [a] GS-13.” Id. ¶ 25. The other remaining
applicant who was not chosen had also engaged in protected
activity and been engaged in litigation with ATF since 2014.
Opp’n to Mot. to Dismiss 7.
    Ho later applied to another GS-14 Supervisory Special
Agent position in a different ATF field office in California and
was selected on June 6, 2021. Id. at 1.
                                B
     Ho filed an administrative complaint with ATF alleging
retaliation. ATF dismissed that complaint, and the Equal
Employment Opportunity Commission affirmed. Ho then filed
a pro se complaint in district court alleging unlawful retaliation
in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e, et seq. Compl. ¶¶ 28–31. The government
moved to dismiss Ho’s complaint for failure to state a claim.
The district court granted the motion, holding that the
complaint failed to sufficiently allege a causal connection
between Ho’s protected EEO activity and his non-selection for
                                  4

the program manager position. Ho v. Garland, No. 21-cv-
1035, 

, at *2 (D.D.C. July 14, 2022).1 Ho
timely appealed. We appointed amicus curiae to present
arguments in support of Ho’s position.
                                  II
     We review a district court’s grant of a motion to dismiss
de novo. N. Am. Butterfly Ass’n v. Wolf, 

(D.C. Cir. 2020). We “accept the operative complaint’s well-
pleaded factual allegations as true and draw all reasonable
inferences” in Ho’s favor. 

 A pro se complaint is to be
“liberally construed” and “held to less stringent standards than
formal pleadings drafted by lawyers.” Erickson v. Pardus, 

 (2007) (per curiam) (quoting Estelle v. Gamble,

 (1976)); see Brown v. Whole Foods Mkt. Grp.,
Inc., 

 (D.C. Cir. 2015). We also “consider a
pro se litigant’s complaint ‘in light of’ all filings, including
filings responsive to a motion to dismiss,” which here includes
Ho’s opposition to the motion to dismiss and attached exhibits.
Brown, 

 (citing Richardson v. United States,

 (D.C. Cir. 1999)); see Abdelfattah v. U.S.
Dep’t of Homeland Sec., 

 (D.C. Cir. 2015)
(considering exhibits filed by pro se plaintiff).
    Pro se complaints must still “contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 

(2009) (quoting Twombly, 

). We read the

     1
       The district court also concluded sua sponte that “to the extent
Ho seeks to bring a standalone racial discrimination claim based on
his non-selection,” it would fail. Ho, 

, at *3. We
do not read the complaint to include a standalone discrimination
claim and therefore do not address whether Ho’s allegations would
suffice to plead such a claim.
                                  5

complaint “as a whole, not parsed piece by piece to determine
whether each allegation, in isolation, is plausible.” Wilson v.
Ark. Dep’t of Hum. Servs., 

 (8th Cir. 2017)
(quoting Braden v. Wal-Mart Stores, Inc., 

(8th Cir. 2009)); see Brown, 

 (considering the
complaint “in toto”). Ho’s claim is plausible if he “pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 

. “[D]etailed factual
allegations” are not required. 

 (quoting Twombly, 

). But “the tenet that a court must accept as true all of
the allegations contained in a complaint is inapplicable to legal
conclusions.” 

 “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Id.2
     Ho alleges that ATF—by not selecting him for the GS-14
program manager position—unlawfully retaliated against him
for filing EEO complaints in violation of Title VII. See 42
U.S.C. § 2000e-3(a). To prove unlawful retaliation, Ho must
show that (1) he “engaged in statutorily protected activity”; (2)
ATF took “a materially adverse action” against him; and (3) his

     2
       Prior to Twombly and Iqbal, this Court had articulated a more
liberal pleading standard for the causation element of Title VII
retaliation claims, under which “in order to survive a motion to
dismiss, all the complaint has to say, is ‘the [defendant] retaliated
against me because I engaged in protected activity.’” Rochon v.
Gonzales, 

 (D.C. Cir. 2006) (cleaned up); see
also Sparrow v. United Air Lines Inc., 

 (D.C.
Cir. 2000). This standard was based on Conley v. Gibson, 

 (1957), which the Supreme Court abrogated in Twombly and
Iqbal, see 550 U.S. at 560–63; 

. Thus, like a “chorus”
of district judges in this Circuit, we hold that this pleading standard
from Rochon and Sparrow “is no longer binding authority.”
Easaw v. Newport, 

, 29 n.4 (D.D.C. 2017).
                                  6

protected activity was a but-for cause of that adverse action.
Howard R.L. Cook & Tommy Shaw Found. Ex rel. Black Emps.
of Libr. Of Cong., Inc. v. Billington, 

 (D.C.
Cir. 2013); see Univ. of Tex. Sw. Med. Ctr. v. Nassar, 

 (2013).
     The parties and district court agreed that Ho adequately
pled that his EEO complaints were protected activity and that
his non-selection was an adverse action. But they dispute
whether he pled sufficient facts to support a plausible inference
that his protected activity was a but-for cause of his non-
selection. To resolve that dispute, we address each of Ho’s
relevant allegations in the light most favorable to him, and then
consider their combined effect. Viewed that way, and bearing
Ho’s pro se status in mind, Ho’s allegations narrowly
“nudge[]” his claim “across the line from conceivable to
plausible.” Brown, 

 (quoting Twombly, 

).
     To start, like many plaintiffs seeking to allege retaliation
without direct evidence of causation, Ho argues that the fact his
non-selection followed his protected activity supports an
inference that he was not selected due to that activity.
Specifically, he filed three EEO complaints about
discrimination and retaliation at ATF in 2015, 2017, and 2018,
the latest of which was filed on October 21, 2018.3 Compl.

     3
        Ho also filed a Merit Systems Protection Board complaint
against ATF in 2019, Compl. ¶ 17, but did not argue below that the
complaint should be considered protected activity for purposes of his
retaliation claims, see id. ¶ 29 (noting prior “EEO complaints . . .
constituted activity protected by Title VII”); id. ¶ 14 (describing
2015, 2017, and 2019 EEO complaints); Opp’n to Mot. to Dismiss 8
(describing “three prior EEO complaints” as the relevant protected
activity). As the district court correctly explained, Ho also failed to
                                 7

¶ 14; Opp’n to Mot. to Dismiss 8. He alleges that his
supervisors knew about that protected activity and argues that
they subsequently did not select him for the program manager
position on August 29, 2019 because of that protected activity.
Compl. ¶¶ 14, 18, 22. The government counters that the ten-
month gap between Ho’s latest protected activity on October
21, 2018 and his non-selection on August 29, 2019 is too long
to support such an inference.
     The district court agreed with the government and
dismissed Ho’s complaint—if Ho relied on only this fact, we
would too: The ten-month gap alleged here is likely too long
to support an inference of causation on its own.
     A plaintiff can sometimes plead causation by relying
solely on the fact that an adverse action shortly followed the
plaintiff’s protected activity. See, e.g., Pratt v. Pompeo, 

 (D.D.C. 2018) (causation adequately pled
based on mere two months between protected activity and
adverse action). But the temporal connection must be “close.”
Singletary v. District of Columbia, 

 (D.C.
Cir. 2003). Although “neither the Supreme Court nor this court
has established a bright-line” rule, “the Supreme Court has
cited circuit decisions suggesting that in some instances a
three-month period between the protected activity and the
adverse employment action may, standing alone, be too lengthy
to raise an inference of causation.” Hamilton v. Geithner, 

, 1357–58 (D.C. Cir. 2012); see Clark Cnty. Sch.


respond below to the government’s assertion that this complaint was
a whistleblower complaint which does not qualify as protected
activity for purposes of Title VII retaliation. Ho, 

,
at *3. We therefore do not consider the Merit Systems Protection
Board complaint as protected activity relevant to Ho’s retaliation
claim.
                                8

Dist. v. Breeden, 

, 273–74 (2001) (per curiam)
(concluding a gap of twenty months “suggests, by itself, no
causality”); see also Mayers v. Laborers’ Health & Safety Fund
of N. Am., 

 (D.C. Cir. 2007), abrogated on
other grounds by Green v. Brennan, 

 (2016).
Measured against that yardstick, the ten-month gap alleged
here appears to be too long to support an inference of causation
on its own.
     Ho’s complaint, however, does not rely solely on the
timing of his non-selection in relation to his EEO complaints.
He pled several other facts—some of which the district court
did not address—that together support an inference of
causation. See Harris v. D.C. Water and Sewer Auth., 

 (D.C. Cir. 2015) (declining to consider whether five-
month gap was too long when plaintiff pled other facts
supporting inference of causation); cf. Pueschel v. Chao,

 (D.C. Cir. 2020) (granting motion to dismiss
on fifteen-year gap because there were “no additional factual
allegations support[ing] causation”).
      First, Ho alleged that some of the officials responsible for
filling the program manager position were the same individuals
he named as Responsible Management Officials in his three
prior EEO complaints. Compl. ¶ 21. Ho listed O’Keefe,
Kropke, and McDermond as Responsible Management
Officials in his 2015, 2017, and 2018 complaints, the latter two
of which alleged that he was not selected for two separate GS-
14 promotions because OSII management was retaliating
against him. 

 ¶¶ 16–18. In connection with at least one of
those complaints, both O’Keefe and McDermond were
required to answer interrogatories and sit for depositions, and
Kropke answered interrogatories. Id. ¶ 18. In the non-selection
at issue here, O’Keefe and Kropke both served on Ho’s
selection panel of four interviewers and O’Keefe was the
                                9

“primary member” of the panel. Id. ¶¶ 21, 23. McDermond
“intervened” at some point during the selection process and
“suggested” to the panel that it could “choose not to make a
selection.” Id. ¶ 24.
     The government argues that these facts suggest only that
the decisionmakers had knowledge of Ho’s protected activity,
which is a requirement for any retaliation claim. See
Mitchell v. Baldridge, 

 (D.C. Cir. 1985);
Breeden, 

 (no inference of causation when
decisionmaker did not know that plaintiff had filed an EEO
complaint about another employee’s conduct). But Ho’s
allegation is meaningfully different from a mere allegation that
O’Keefe, Kropke, and McDermond knew, for example, that Ho
had previously filed a complaint about someone else,
somewhere in the workplace. Ho’s allegation is that he
previously complained about them. Viewing that fact
favorably to Ho, it is reasonable to infer that a supervisor is
more likely to retaliate against an employee that they know has
previously complained about their own behavior than against
an employee who has complained only about others.
     Several cases recognize the salience of this type of fact. At
least two district judges in this Circuit have correctly reasoned
that the fact a decisionmaker both knows about and was
involved in a prior EEO complaint strengthens an inference of
causation. See Buggs v. Powell, 

, 149–50
(D.D.C. 2003); Winston v. Clough, 

, 11–12
(D.D.C. 2010). And two of our cases have made the inverse
point, noting that if a decisionmaker merely knows about
protected activity—but is not involved in or targeted by the
prior complaint—that fact weakens an inference that the
decisionmaker might have retaliatory animus. See Vickers v.
Powell, 

 (D.C. Cir. 2007) (finding evidence
insufficient to infer retaliation at summary judgment when
                               10

decisionmaker in adverse action knew of plaintiff’s complaints
but did not “participate in any of the alleged incidents that make
up [plaintiff’s] hostile work environment claim”); Gilbert v.
Napolitano, 

 (D.C. Cir. 2012) (similar).
Because Ho not only alleged that Kropke, O’Keefe, and
McDermond had knowledge of his prior EEO complaints but
also that they were involved in those disputes, Ho’s allegations
support a materially stronger inference of retaliation akin to
those in Buggs and Winston.
    Second, Ho pled several facts suggesting that he was well-
qualified for the position. ATF Human Resources told Ho he
was “among the best qualified for the position.” Compl. ¶ 19.
More importantly, O’Keefe also told Ho that Ho was “qualified
for the position,” that O’Keefe was “aware” of Ho’s
“experience in Internet investigations,” and that Ho had
“‘knocked it out of the park’” on some interview questions. 

¶¶ 23–24, 26.
     Third, Ho’s allegations support the inference that ATF had
a strong desire to fill the position. Per the complaint, ATF
initially advertised the position to lateral GS-14s, but later
opened it to GS-13 applicants like Ho because no one had
applied and there was “a need” to fill the position. Id. ¶ 25.
After no applicant was selected, O’Keefe told Ho that he was
“unsure what OSII will do with the position” and that the
position “may or may not be re-announced or it may be filled
by lateral GS-14 or by GS-13.” Id. ¶ 25.
     These second and third points, viewed in the light most
favorable to Ho, support his claim by establishing that his non-
selection was not due to the “two most common legitimate
reasons on which an employer might rely to reject a job
applicant: an absolute or relative lack of qualifications or the
absence of a vacancy in the job sought.” Teneyck v. Omni
                              11

Shoreham Hotel, 

 (D.C. Cir. 2004)
(citation omitted); see Harris, 

. At the motion to
dismiss stage, a plaintiff need not “rule out every possible
lawful explanation,” but rather only dispel any “obvious
alternative explanation[s].” Wilson, 

 (citing
Iqbal, 

). Ho has done so here.
     Finally, the alleged reason for Ho’s non-selection is
entirely subjective. The facts alleged suggest that even though
ATF needed to fill the position, it chose not to promote either
of the two qualified applicants based on a subjective
“judgment” that they “did not answer the interview questions
well enough.” Compl. ¶¶ 23–24. Such an exclusively
subjective basis for the challenged action must be treated with
“caution.” Hamilton, 

. We have “repeatedly
expressed concern about the ease with which heavy reliance on
subjective criteria may be used to ‘mask’ or ‘camouflage’
discrimination.” 

 (citation omitted). Such “caution” is
“particularly appropriate here,” 

 given that the only other
qualified applicant had also engaged in similar protected
activity, yet was rejected for the same subjective reason.
Although poor interview performance may certainly be a
legitimate basis for Ho’s non-selection, at this stage we have
no further details about what was said in the interview or by
what criteria the panelists judged Ho. A “complaint survives a
motion to dismiss” when “there are two alternative
explanations, one advanced by the defendant, and the other
advanced by the plaintiff, both of which are plausible.”
VoteVets Action Fund v. U.S. Dep’t of Veterans Affs., 

 (D.C. Cir. 2021) (cleaned up).
     Viewed in isolation, none of these allegations would be
sufficient to support an inference that ATF declined to promote
Ho in retaliation for his prior protected activity. But we must
read “the allegations of the complaint as a whole.” Matrixx
                                12

Initiatives, Inc. v. Siracusano, 

 (2011). From
that broader perspective, and construing the allegations in Ho’s
favor, a fuller picture emerges. ATF had a serious need to fill
the position. Ho was qualified for the position, and the
decisionmakers acknowledged as much. But he had previously
complained about the conduct of the very people responsible
for filling the opening. They said he did well in the interview,
but still did not select him on the entirely subjective ground that
he did not do “well enough.” Compl. ¶ 23. And the only other
qualified applicant who was also deemed not to have done
“well enough” also happened to have engaged in similar
protected activity. Taken together, and considering Ho’s pro
se status, these allegations narrowly suffice to support a
plausible inference that Ho’s protected activity was a but-for
cause of his non-selection.
     The district court and government either ignore or
improperly draw adverse inferences from these allegations.
For instance, the district court concluded that the allegations
“suggest that ATF ha[d] simply given up on filling the program
manager position.” Ho, 

, at *3. The
government makes a similar argument. See Appellee’s Brief
27. Even if that were one reasonable inference from the facts
alleged, that is not the proper mode of analysis when resolving
a motion to dismiss. We must instead draw inferences in favor
of the plaintiff, and with a pro se plaintiff, we should be
especially careful to “liberally construe” the complaint’s
allegations. Erickson, 

. Here, Ho’s complaint
alleges that ATF had expanded the opening to GS-13
applicants because of the “need” to fill the position, and then
that after his non-selection, O’Keefe said he had not yet
decided what to do with the position and that it “may be filled
by lateral GS-14 or by GS-13” applicants. Compl. ¶ 25.
O’Keefe even gave Ho a reason he was not selected: his
interview performance, not that ATF had given up on filling
                                 13

the position. It is at least a reasonable inference in Ho’s favor
that ATF was interested in filling the position both when it
decided not to promote Ho and even shortly thereafter, even if
it had not yet decided how to do so.4
     The government makes a similar methodological error by
arguing that the complaint’s factual allegations are not
supported by evidence, instead of taking the complaint’s
allegations as true and arguing that they nonetheless fail to
support any inference of causation. For example, at oral
argument, the government disputed the allegations about Ho’s
qualifications by pointing to the details of his resume (which
was attached to his opposition to ATF’s motion to dismiss) and
arguing he did not have sufficient internet investigation
experience for the position. See Oral Argument Transcript at
18:7–23. That argument is appropriate for summary judgment,
but not on a motion to dismiss. At this stage, our “role is not
to speculate about which factual allegations are likely to be
proved after discovery” but rather to decide whether Ho
“alleged facts that, taken as true, render his claim of retaliation
plausible.” Harris, 

; see also Norgren v. Minn.
Dep’t of Hum. Servs., 

 (8th Cir. 2024)
(explaining that while a plaintiff’s qualifications “may be open
to interpretation, any doubts . . . must be construed” in the
plaintiff’s favor). And the complaint, construed in Ho’s favor,
pleads that Ho has sufficient internet experience, as indicated
by the fact that “O’Keefe has stated he was aware that [Ho] has

   4
     The district court also found that its conclusion was “bolstered”
by Ho’s later promotion to another GS-14 job in a different ATF field
office in California. Ho, 

, at *3. Although we do
not believe that fact supports any reasonable causal inference in Ho’s
favor, the district court erred by drawing an inference—the basis for
which is not apparent—that his selection for that position somehow
cuts against his claim of retaliation.
                               14

experience in conducting Internet investigations,” Compl. ¶ 26,
and the fact that Ho’s resume lists several work experiences in
“Internet-based Investigations with ATF,” Opp’n to Mot. to
Dismiss, Ex. 1.
     Perhaps the evidence ultimately will show that Ho did not
have the requisite experience in Internet investigations, or that
he interviewed poorly, or that OSII simply decided no one was
needed for the role anymore, any of which might very well
rebut Ho’s claim on summary judgment. But that is for
discovery to uncover. A “well-pleaded complaint may proceed
even if it strikes a savvy judge that actual proof of those facts
is improbable.” Abbas v. Foreign Pol’y Grp., LLC, 

 (D.C. Cir. 2015) (quoting Twombly, 

). In this close case, we find that the facts pled in this
complaint, taken in totality, have “nudged” Ho’s claim “across
the line from conceivable to plausible.” Brown, 

 (quoting Twombly, 

).
                              III
    The district court’s judgment is reversed, and the case is
remanded for proceedings consistent with this opinion.
                                                    So ordered.