UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) ANDREW YANG, ) ) Plaintiff, ) ) v. ) Civil Action No. 21-1698 (ABJ) ) CAROL SPAHN, ) Chief Executive Officer, U.S. Peace Corps, ) ) Defendant. ) ____________________________________)

MEMORANDUM OPINION

On June 24, 2021, plaintiff Andrew Yang brought this action in the United States District

Court for the District of Columbia against the Director of the Peace Corps, defendant Josephine

K. Olson. 1 Compl. [Dkt. # 1]. 2 Plaintiff, a former Peace Corps volunteer in the country of Georgia,

alleges that defendant unlawfully discriminated against him on the basis of his sex and unlawfully

retaliated against him for his protected complaints of sex discrimination, in violation of Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. Am. Compl. ¶¶ 4, 26–27,

32. These events, plaintiff claims, led to the termination of his employment. Am. Compl. ¶¶ 27,

32.

The defendant filed a motion to dismiss these counts pursuant to Federal Rule of Civil

Procedure 12(b)(6). Def.’s Mot. to Dismiss [Dkt. # 14], Mem. of Law in Supp. of Def.’s Mot. to

1 On December 9, 2021, Carol Spahn, the Chief Executive Officer of the Peace Corps, was automatically substituted as a defendant pursuant to Federal Rule of Civil Procedure 25(d).

2 Plaintiff filed an amended complaint on July 5, 2021 – eleven days after filing his first complaint. Am. Compl. [Dkt. # 6] at 6; Compl. at 6. This did not require the Court’s permission because “[a] party may amend its pleading once as a matter of course within . . . 21 days after serving it.” Fed. R. Civ. P. 15(a)(1)(A). Dismiss [Dkt. # 14-1] (“Mot. to Dismiss”). The motion is fully briefed. See Pl.’s Br. in Opp. to

Def.’s Mot. to Dismiss [Dkt. # 18] (“Opp. to Mot. to Dismiss”); Def.’s Reply Mem. in Further

Supp. of Mot. to Dismiss [Dkt. # 19] (“Reply in Supp. of Mot. to Dismiss”); Notice of Suppl.

Authority [Dkt. # 21].

On December 20, 2022 – nearly a year and a half after his complaint was originally filed –

plaintiff filed what was styled as an “expedited motion,” to amend his complaint again pursuant to

Federal Rule of Civil Procedure 15(a)(2). 3 Pl.’s Expedited Mot. to File Second Am. Compl.

Pursuant to Fed. R. Civ. P. 15(a)(2) [Dkt. # 23] (“Mot. to Amend”) at 1. While he does not seek

to change the first count alleging discrimination and retaliation, the proposed second amended

complaint adds two additional claims: one for breach of contract and one arising under the

Administrative Procedures Act (“APA”). Id.; see Second Am. Compl., Mot. to Amend [Dkt. # 23-

1] (“Proposed Compl.”) ¶¶ 38–44. 4 Defendant opposes the motion. Def.’s Opp. to Pl.’s Mot. to

3 On December 2, 2021, plaintiff attached a proposed amended complaint to his opposition to defendant’s motion to dismiss, informing the Court he was including it in case “this Court believes the Amended Complaint to be insufficient to survive Defendant’s motion.” Opp. to Motion to Dismiss at 5; see Proposed Second Am. Compl. [Dkt. # 18-1]. Because plaintiff had already amended his pleading and more than twenty-one days had passed, plaintiff could not amend the complaint without either “the opposing party’s written consent or the court’s leave,” Fed. R. Civ. P. 15(a)(2), and he did not include an actual motion to amend at that time. “[I]t is axiomatic that a complaint may not be amended by the briefs in opposition to a motion to dismiss. . . . To hold otherwise would mean that a party could unilaterally amend a complaint at will.” Statewide Bonding, Inc. v. United States Dep’t of Homeland Sec.,

, 117 n.5 (D.C. Cir. 2020) (internal quotation marks and citations omitted); see also Kingman Park Civic Ass’n v. Gray,

, 160 n.7 (D.D.C. 2014) (citing cases) (“It is well settled law that a plaintiff cannot amend [the] complaint by the briefs in opposition to a motion to dismiss.”). Therefore, the Court did not treat that proposed amended complaint as a motion for leave to amend, and that proposed amended complaint is not the one before the Court at this time.

4 The proposed second amended complaint emphasizes that defendant seeks as relief for the Peace Corps to reinstate him as a Volunteer. Request for Relief, Proposed Compl. ¶¶ 1–2; Proposed Compl. ¶ 1. This is not a new request, though, since the operative complaint also includes “reinstatement” in the relief sought. Request for Relief, Am. Compl. ¶ 1. 2 Amend [Dkt. # 24] (“Opp. to Mot. to Amend”); see also Pl.’s Reply Mem. on His Mot. to File

Second Am. Compl. [Dkt. # 25].

Because even the proposed second amended complaint fails to state a claim upon which

relief can be granted, the Court will DENY plaintiff’s motion to amend as futile, and GRANT

defendant’s motion to dismiss.

FACTUAL BACKGROUND

In December 2019, plaintiff was employed as a Peace Corps volunteer in the country of

Georgia. Am. Compl. ¶¶ 4, 7; Proposed Compl. ¶¶ 4, 7. 5 On December 17, plaintiff alleges,

Melanie Emerson, his Country Director, presented him with a memorandum that contained

“unspecified allegations against him” and a “no-contact order with a complaining female

volunteer” (“Complaining Volunteer”). Am. Compl. ¶ 7; Proposed Compl. ¶ 7. The memorandum

stated:

The purpose of this memorandum is to inform you that for your own protection and due to an open allegation we are looking into, effective immediately, I am issuing these instructions to you and imposing the following conditions . . . until further notice:

 You are required to stay away from and refrain from having any form of contact with [Complaining Volunteer], directly or through proxies, whether in person, by phone, in writing, via electronic means or via social media, or through a third party until further notice.

 During the . . . conference [on] December 17–20, 2019, you must not have any interactions or communications with [Complaining

5 Although plaintiff’s start date is not included in the amended complaint, it appears that plaintiff began training for his position prior to December 2019. See Letter from Melanie Emerson, County Dir., Peace Corps, to Andy Yang, Volunteer, Peace Corps Georgia (Dec. 21, 2019), Ex. B. to Mot. to Dismiss [Dkt. # 14-3] (“Dec. 21, 2019 Letter”) (“In November, 2019, Peace Corps Georgia received allegations that you engaged in stalking and sexual harassment against a female Volunteer (then Trainee).”); Ex. 1 to Reply in Supp. of Mot. to Dismiss [Dkt. # 19-1] at 5 (referencing “training days back in June”). 3 Volunteer], and you must at all times stay at least 10 feet away from her.

 You are prohibited from engaging in communications of any kind, including social media with other Peace Corps Georgia Volunteers, concerning this allegation and my instructions to you regarding no contact.

If you are found to have violated any aspect of these instructions . . . , you may be subject to disciplinary action up to and including administrative separation.

Letter from Melanie Emerson, County Dir., Peace Corps, to Andy Yang, Volunteer, Peace Corps

Georgia (Dec. 17, 2019), Ex. A. to Mot. to Dismiss [Dkt. # 14-2] (“Dec. 17, 2019 Letter”) at 2. 6

Plaintiff’s signature appears at the bottom of this letter, which is dated December 17, 2019.

Plaintiff claims that “[t]he issuance, content, and implementation of the memo by

[d]efendant violated proper procedures” that are set out in the Peace Corps Manual’s interim policy

statement (“IPS”). Am. Compl. ¶ 9; Proposed Compl. ¶ 9. IPS 1-12, entitled “Procedures for

Handling Complaints of Volunteer/Trainee Sexual Misconduct,” provides:

The Country Director (CD) is responsible for the following:

....

(c) Meeting with the Accused V/T [(“Volunteer/Trainee”)], preferably in person, following consul[t]ation with [the Office of the Inspector General (“OIG”)] and [the Office of General Counsel

6 In ruling upon a motion to dismiss for failure to state a claim, a court may ordinarily consider only “the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice.” Gustave-Schmidt v. Chao,

(D.D.C. 2002), citing EEOC v. St. Francis Xavier Parochial Sch.,

, 624–25 (D.C. Cir. 1997); see Fed. R. Civ. P. 10(c). A document may be incorporated by reference even if it “is not attached by the plaintiff,” as long as it “is referred to in the complaint and integral to the plaintiff’s claim.” Banneker Ventures, LLC v. Graham,

(D.C. Cir. 2015) (internal brackets and quotation marks omitted).

Here, the Dec. 17, 2019 Letter is explicitly referenced in plaintiff’s amended complaint and in the proposed second amended complaint; indeed, many of the allegations arise from the contents of that document. See Am. Compl. ¶¶ 7, 9, 16, 17; Proposed Compl. ¶¶ 7, 9, 18, 19. 4 (“OGC”)], [the Office of Safety and Security (“OSS”)], and the appropriate Regional Director. During that meeting or conversation, the CD shall:

(1) Provide the Accused V/T with a general explanation of IPS 1-12 Volunteer/Trainee Sexual Misconduct and these Procedures.

(2) Inform the Accused V/T that the Accused V/T is the subject of a Sexual Misconduct Complaint brought by another V/T.

(3) Advise the Accused V/T that the Accused V/T may, if needed, seek mental health services from the Counseling and Outreach Unit (COU) in the Office of Health Services (OHS); and

([4]) Inform the Accused V/T that the Accused V/T may resign at any time, in accordance with section 6.2 below.

Peace Corps, IPS 1-12 Procedures for Handling Complaints of Volunteer/Trainee Sexual

Misconduct (effective July 3, 2019), available at https://files.peacecorps.gov/documents/IPS-1-12-

Interim-Procedures.pdf (section 3.1); see Proposed Compl. ¶ 10.

Plaintiff asserts in the proposed second amended complaint that Emerson did not follow

the procedures set out in the Manual when she met with him, and therefore, he did not “fully

understand his rights under the policies and how best to proceed.” Proposed Compl. ¶ 11. Plaintiff

also claims that he signed the Dec. 17, 2019 Letter when he met with Emerson that day,

“immediately without reading it thoroughly,” because she had “ordered” him to do so. Am.

Compl. ¶ 7; Proposed Compl. ¶ 7. Plaintiff alleges that Emerson refused to provide him with a

copy of the letter or any details of the allegations that were being levied against him. Am.

Compl. ¶¶ 7–8; Proposed Compl. ¶¶ 7–8. He complains that “[n]o one . . . ever asked [him] about

the allegations against him or requested any information or documentation from him to refute the

allegations.” Am. Compl. ¶ 19; Proposed Compl. ¶ 22.

5 Plaintiff alleges that on the evening of December 17, 2019 – following the meeting with

Emerson, but, according to plaintiff, before he received a copy of the letter – he “discussed with

other volunteers the potential nature of the allegations and the possible identity of the

[Complaining Volunteer].” Am. Compl. ¶ 10; Proposed Compl. ¶ 12. Later that same evening,

plaintiff alleges, the Complaining Volunteer approached him, but he refused to respond or engage

with her and he texted Emerson to inform her of the “unauthorized contact.” Am. Compl. ¶¶ 11–

13; Proposed Comp. ¶¶ 13–15.

On the following morning, December 18, 2019, Emerson responded to plaintiff’s text

message and told him that she “had placed the no contact order on [p]laintiff, not the [Complaining

Volunteer].” Am. Compl. ¶ 14; Proposed Compl. ¶ 16. That afternoon, plaintiff alleges, he

complained “via message” to the OIG of the Peace Corps about “the vagueness of the allegations

against him, Emerson’s refusal to tell him what he was being accused of, and the Agency’s refusal

to allow [p]laintiff to refute the allegations against him or provide his side of the story.” Am.

Compl. ¶ 15; Proposed Compl. ¶ 17. 7 The complaint alleges that plaintiff received a copy of the

Dec. 17, 2019 letter he had signed the day before at approximately 1:37 p.m. Am. Compl. ¶ 16;

Proposed Compl. ¶ 18; see Letter from Melanie Emerson, County Dir., Peace Corps Georgia, to

Andy Yang, Volunteer, Peace Corps Georgia (Dec. 21, 2019), Ex. B. to Mot. to Dismiss

[Dkt. # 14-3] (“Dec. 21, 2019 Letter”) at 2 (“I emailed you a scanned copy of the signed [Dec. 17,

2019 Letter] on December 18, 2019.”). 8

7 The following day, plaintiff also sent a detailed follow-up e-mail to the OIG, with the same complaints. Am. Compl. ¶ 15; Proposed Compl. ¶ 17. 8 Like the Dec. 17, 2019 Letter, the Dec. 21, 2019 Letter is not expressly incorporated in the complaint. But it is referred to in plaintiff’s amended complaint and proposed second amended complaint. See e.g., Am. Compl. ¶¶ 20–21; Proposed Compl. ¶¶ 24–25. 6 On December 20, 2019, plaintiff alleges, he met with Emerson for a second time and she

“berated him” for speaking to others about the Dec. 17, 2019 Letter, in violation of its terms. Am.

Compl. ¶ 17; Proposed Compl. ¶ 19; see also Dec. 17, 2019 Letter at 2. Plaintiff claims he told

Emerson that he was unaware that his discussions with the other volunteers violated the terms of

the Dec. 17, 2019 Letter, which he did not have at the time. Am. Compl. ¶ 18; Proposed

Compl. ¶ 21.

On December 21, 2019, Emerson issued another letter. Am. Compl. ¶ 20; Proposed

Compl. ¶ 24; Dec. 21, 2019 Letter. It reported:

In November[] 2019, Peace Corps Georgia received allegations that you engaged in stalking and sexual harassment against a [Complaining Volunteer] (then Trainee). These matters were referred to the Office of Inspector General for investigation, and on November 27, 2019, OIG referred the matter back to Post for inquiry and administrative action. Pending that inquiry, I issued you no contact instructions in person on Tuesday, December 17, 2019, 2:30 pm . . . .

...

It has recently come to my attention that on the evening of December 17, 2019[,] you violated my instructions by communicating with other Volunteers about your speculations on the nature of the allegation referenced in my instructions , the identity of the [Complaining Volunteer], and my instructions to you regarding no contact.

...

As a result of your failure to comply with my instructions issued to you on December 17, 2019, I am considering you for administrative separation from service . . . . You have the right to respond in writing to this memorandum no later than 12:00 pm on Sunday, December 22. Following consideration of your response, I will make a final decision with the concurrence of the Regional Director for the EMA Region. You have the option to resign in lieu of administrative separation at any time up to 24 hours after a final decision has been made.

Dec. 21, 2019 Letter at 1–2, quoting the Dec. 17, 2019 Letter at 1.

7 Plaintiff alleges that when Emerson issued this second letter, she “knew that [he] had

complained to the [OIG’s] office about her handling of the discriminatory allegations against him

and her violation of proper procedures in addressing the allegations.” Am. Compl. ¶ 22; Proposed

Compl. ¶ 26; see also Proposed Compl. ¶ 20. For this reason, according to plaintiff, the letter was

an act of retaliation. Am. Compl. ¶ 27; Proposed Compl. ¶¶ 20, 31.

In the proposed second amended complaint, plaintiff also claims that the Peace Corps

“failed to follow the procedures set forth in [Manual Section (“MS”)] 271 Confidentiality

Protection which prohibit reprisal against any Volunteer, like [p]laintiff, who brings to the

attention of the OIG any allegations of mismanagement that relate to Peace Corps operations.”

Proposed Compl. ¶ 23; see Peace Corps, MS 271 Confidentiality Provision (effective

July 22, 2013), available at https://files.peacecorps.gov/documents/MS-271-Policy.pdf

(section 3.0(f): “Peace Corps staff are prohibited from retaliating against any Volunteer who raises

any allegations or concerns [to the OIG].”; section 6.0(a): “No Peace Corps staff person may

retaliate against a Volunteer because the Volunteer reported an allegation or concern under

Section 3 above.”).

Two days later, on December 23, 2019, plaintiff informed Emerson in an email that he

“wished to exercise his option to resign in lieu of termination.” Am. Compl. ¶ 23; Proposed

Compl. ¶ 27. In his complaint, plaintiff characterizes this event as a “constructive discharge.”

Am. Compl. ¶ 23; Proposed Compl. ¶ 27. Plaintiff’s resignation became effective on

January 9, 2020. Am. Compl. ¶ 24; Proposed Compl. ¶ 28.

Plaintiff alleges that he filed a timely EEO petition, and subsequently “filed a formal

complaint with [d]efendant, designated Agency Case No. PCV-20-06.” Am. Compl. ¶ 28;

8 Proposed Compl. ¶ 32. On May 28, 2021, defendant issued a Final Agency Decision in Agency

Case No. PC-20-06, from which plaintiff now appeals. Am. Compl. ¶ 29; Proposed Compl. ¶ 33.

LEGAL STANDARD

Federal Rule of Civil Procedure 15(a)(2) provides that a party may amend its pleading with

the court’s leave, and that “[t]he court should freely give leave when justice so requires.” Fed. R.

Civ. P. 15(a)(2). The Supreme Court has emphasized this standard: “In the absence of any

apparent or declared reason—such as undue delay, bad faith or dilatory motive on the part of the

movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice

to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.—the

leave sought should, as the rules require, be freely given.” Foman v. Davis,

(1962) (internal quotation marks omitted). But a court “may deny a motion to amend a complaint

as futile if the proposed claim would not survive a motion to dismiss.” Hettinga v. United States,

(D.C. Cir. 2012).

“To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

(2009), quoting Bell Atl. Corp. v. Twombly,

(2007) (internal

quotation marks omitted). In Iqbal, the Supreme Court reiterated the two principles underlying its

decision in Twombly: “[f]irst, the tenet that a court must accept as true all of the allegations

contained in a complaint is inapplicable to legal conclusions,” and “[s]econd, only a complaint that

states a plausible claim for relief survives a motion to dismiss.”

at 678–79, citing Twombly,

550 U.S. at 555–56.

A claim is facially plausible when the pleaded factual content “allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,

, citing Twombly,

. “The plausibility standard is not akin to a ‘probability

requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”

quoting Twombly,

. A pleading must offer more than “labels and conclusions”

or a “formulaic recitation of the elements of a cause of action,”

quoting Twombly,

, and “[t]hreadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.”

citing Twombly,

.

When considering a motion to dismiss under Rule 12(b)(6), the Court is bound to construe

a complaint liberally in the plaintiff’s favor, and it should grant the plaintiff “the benefit of all

inferences that can be derived from the facts alleged.” Kowal v. MCI Commc’ns Corp.,

(D.C. Cir. 1994). Nevertheless, the Court need not accept inferences drawn

by the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the

Court accept plaintiff’s legal conclusions. See id.; Browning v. Clinton,

(D.C.

Cir. 2002).

ANALYSIS

Defendant argues that neither plaintiff’s original claims alleging sex discrimination and

retaliation, nor the proposed additional claims alleging breach of contract and an APA violation,

state a claim that would survive a motion to dismiss. She maintains that amending the complaint

to include the breach of contract and APA claims would be futile, and that the complaint should

be dismissed.

I. Sex Discrimination Claim

Plaintiff alleges that the defendant unlawfully discriminated against him on the basis of his

sex, in violation of Title VII, by “receiving a compl[ai]nt from a female volunteer about him but

not telling him who complained, what conduct the complaint was about, or conduct[ing] any

10 investigation into the claims. Defendant just accepted these allegations . . . and then informed him

that he was going to be administratively separated.” Am. Compl. ¶ 26; Proposed Compl. ¶ 30.

Defendant contends that plaintiff “resigned rather than face the possibility of further investigation

into his alleged misconduct and any consequences.” Mot. to Dismiss at 5–6; see

at 5–9; see

also Am. Compl. ¶ 23; Proposed Compl. ¶ 27. Therefore, defendant argues, plaintiff has failed to

allege he was subjected to any action that would constitute the adverse employment action that is

a necessary element of a discrimination claim, not even a constructive discharge.

at 5–14.

To prevail on a claim for discrimination under Title VII, at the motion to dismiss stage, a

plaintiff must establish “(1) [h]e is a member of a protected class; 9 (2) [h]e suffered an adverse

employment action; and (3) the unfavorable action gives rise to an inference of discrimination.”

Chappell-Johnson v. Powell,

(D.C. Cir. 2006), quoting Brown v. Brody,

(D.C. Cir. 1999), overruled on other grounds by Chambers v. Dist. of Columbia,

(D.C. Cir. 2022).

An adverse employment action requires “a significant change in employment status, such

as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a

decision causing a significant change in benefits.” Burlington Indus., Inc. v. Ellerth,

(1998). In “a situation in which an employer discriminates against an employee

to the point such that his working conditions become so intolerable that a reasonable person in the

employee’s position would have felt compelled to resign . . . Title VII treats that resignation as

tantamount to an actual discharge.” Green v. Brennan,

(2016), quoting

9 Plaintiff has alleged he is a male who was unlawfully discriminated against on the basis of his sex, and that puts him within a protected class. Am. Compl. ¶ 26; Proposed Compl. ¶ 30. 11 Pennsylvania State Police v. Suders,

(2004) (internal quotation marks and

citation omitted). This is called a “constructive discharge.”

The test for constructive discharge is objective: “[d]id working conditions become so

intolerable that a reasonable person in the employee’s position would have felt compelled to

resign?” Suders,

. “[T]o establish ‘constructive discharge,’ the plaintiff . . . must

show that the abusive working environment became so intolerable that [their] resignation qualified

as a fitting response.”

. This “requires a finding of discrimination and the existence of

certain ‘aggravating factors.’” Veitch v. England,

(D.C. Cir. 2006), quoting

Mungin v. Katten Munchin & Zavis,

(D.C. Cir. 1997) (emphasis in original).

“‘Aggravating factors’ are those aspects of a discriminatory work environment that, by making the

workplace so disagreeable, prevent the reasonable employee from seeking remediation on the job.”

But, “where an employee is faced merely with the unpleasant alternatives of resigning or being

subject to removal for cause, such limited choices do not make the resulting resignation an

involuntary act.” Keyes v. District of Columbia,

(D.C. Cir. 2004) (internal

citation and quotation marks omitted).

Even read in the light most favorable to the plaintiff, nothing in the complaint gives rise to

a plausible inference that plaintiff was forced to resign due to an intolerable working environment.

Plaintiff announced his resignation just two days after he was told that his separation was under

consideration, and he does not provide any information about how he was treated during that brief

period. The complaint is devoid of any facts that would fall within the category of “aggravating

factors” that would prevent a reasonable employee from seeking remediation on the job. Indeed,

plaintiff himself characterized his resignation as an “option” at the time, and one that he wished to

exercise “in lieu of termination.” Am Compl. ¶ 23; Proposed Compl. ¶ 27; see Dec. 21, 2019

12 Letter at 2. And although plaintiff alleges now that defendant “informed him that he was going to

be administratively separated” and “determined [he] would be administratively separated,” Am

Compl. ¶¶ 26–27 (emphasis added); Proposed Compl. ¶¶ 30–31 (same), this summary is

inconsistent with the Dec. 21, 2019 Letter that is incorporated in the complaint. Emerson informed

the plaintiff that the Peace Corps was “considering” him for administrative separation and offered

him an opportunity to respond in writing before the final decision would be made. Dec. 21, 2019

Letter at 2. Moreover, plaintiff was told that he could exercise the option to resign “up to 24 hours

after a final decision has been made.”

(emphasis added). “Although choosing between [his]

options may have been difficult, it was a voluntary decision nonetheless.” Keyes,

.

Therefore, the complaint does not plausibly allege that plaintiff’s resignation was a

constructive discharge, and because there is no other adverse employment action alleged in the

complaint, the motion to dismiss the discrimination claim will be granted.

II. Retaliation Claim

Title VII’s anti-retaliation provision makes it unlawful for “an employer [to]

‘discriminat[e] against’ an employee . . . because that individual ‘opposed any practice’ made

unlawful by Title VII or ‘made a charge, testified, assisted, or participated in’ a Title VII

proceeding or investigation.” Burlington Northern & Santa Fe Ry. Co. v. White,

(2006), quoting 42 U.S.C. § 2000e–3(a). The first clause, regarding employees who oppose a

practice made unlawful by Title VII, is known as the opposition clause, while the second clause,

regarding employees who participate in an EEO investigation, proceeding, or hearing, is known as

the participation clause. See Crawford v. Metro. Gov’t of Nashville & Davidson Cty., Tenn.,

(2009).

13 In order to establish a prima facie case of retaliation, a plaintiff “must show (1) [h]e

engaged in a statutorily protected activity; (2) [h]e suffered an adverse employment action; and

(3) there is a causal connection between the two.” Taylor v. Small,

(D.C.

Cir. 2003). The D.C. Circuit has explained that when a plaintiff is alleging retaliation in response

to “protected activity,” “[n]ot every complaint garners its author protection under Title VII. While

no ‘magic words’ are required, the complaint must in some way allege unlawful discrimination,

not just frustrated ambition.” Broderick v. Donaldson,

(D.C. Cir. 2006)

(internal citations omitted) (opining that a memorandum the plaintiff sent to her supervisors and

the EEO office may not have met this standard because it “did not allege . . . that she was currently

being discriminated against or that she was being retaliated against for her previous lawsuit”).

“[A]n employee seeking the protection of the opposition clause must demonstrate a good faith,

reasonable belief that the challenged practice violates Title VII.” George v. Leavitt,

(D.C. Cir. 2005) (internal citation and brackets omitted).

Plaintiff does not allege that he made a charge, testified, assisted, or participated in a

Title VII proceeding or investigation prior to the alleged act of retaliation. See 42 U.S.C. § 2000e–

3(a). 10 But he does submit that the defendant retaliated against him on the basis of his sex for

10 Plaintiff does claim that he filed an “EEO petition and thereafter a formal complaint with [d]efendant,” Am. Compl. ¶ 28; Proposed Compl. ¶ 32, but he does not link the alleged retaliation to the EEO petition, instead alleging that the retaliation came “after he wrote a complaint to the [OIG] about how the situation was being handled,” Am. Compl. ¶ 27; Proposed Compl. ¶ 31. Because he filed his EEOC complaint after the allegedly retaliatory events occurred, it cannot serve as the basis for his retaliation claims. Cones v. Shalala,

(D.C. Cir. 2000), quoting Mitchell v. Baldrige,

(D.C. Cir. 1985) (finding that to establish a causal connection between a protected activity and an adverse employment action, plaintiff may allege that defendant knew about the protected activity “and that the adverse personnel action took place shortly after that activity”) (emphasis added). Here, every alleged retaliatory action by defendant took place on or before December 21, 2019, when defendant issued him the memo informing him he could resign in lieu of administrative separation. 14 expressing opposition to a practice made unlawful by Title VII: “[defendant] only determined [he]

would be administratively separated . . . after he wrote a complaint to the Inspector General about

how the situation was being handled and explained that he felt that his treatment by [defendant]

was unfair and discriminatory.” Am. Compl. ¶ 27; Proposed Compl. ¶ 31; see Am. Compl. ¶ 32;

Proposed Compl. ¶ 36. In this email to the OIG, however, plaintiff does not raise concerns or

assert there has been sex discrimination. His complaints instead were about “the vagueness of the

allegations against him, Emerson’s refusal to tell him what he was being accused of, and the

Agency’s refusal to allow [him] to refute the allegations against him or provide his side of the

story.” Am. Compl. ¶ 15; Proposed Compl. ¶ 17. 11 There are no allegations that support an

inference that he ever raised concerns about sex discrimination prior to his resignation. Therefore,

there are no facts to support an inference that he engaged in protected activity before he resigned.

See Broderick,

.

Moreover, the Court has already found that the allegations concerning plaintiff’s

resignation do not add up to a constructive discharge, and plaintiff does not allege that he suffered

any other adverse employment action. Given the absence of any allegation that plaintiff engaged

in protected activity under Title VII, and the lack of an actionable adverse event, the Court will

also dismiss the retaliation claim.

11 This email exchange is attached to defendant’s reply as Exhibit 1. See Ex. 1 to Reply in Supp. of Mot. to Dismiss. 15 III. Proposed Claims: Breach of Contract and APA Violation 12

The proposed second amended complaint adds two claims: a claim for breach of contract

based on defendant “refusing to follow the policies and procedures and forcing [p]laintiff to resign

his position,” Proposed Compl. ¶ 40; Proposed Compl. ¶¶ 38–41; and a claim under the APA

alleging that the Peace Corps “unlawfully refused to comply with established procedural standards

in discriminating against and terminating [p]laintiff in violation of the . . . official regulations and

procedures set forth in the Peace Corps Manuals.” Proposed Compl. ¶ 43 (emphasis in original).

A. Proposed Breach of Contract Claim

“To prevail on a claim of breach of contract, a party must establish (1) a valid contract

between the parties; (2) an obligation or duty arising out of the contract; (3) a breach of that duty;

and (4) damages caused by breach.” Brown v. Sessoms,

(D.C. Cir. 2014),

quoting Tsintolas Realty Co. v. Mendez,

(D.C. 2009). Plaintiff alleges that

“[d]efendant’s issuance of binding policies and regulations in its Volunteer Handbooks and [his]

adherence to those Handbooks created a binding contract between the parties under the common

12 Plaintiff’s counsel admits in his reply in support of the motion to amend that he “overlook[ed] the Local Rule 7(m) requirement of conferring with opposing counsel prior to filing this motion” because he was sick at the time and wanted to file his motion before the “statute of limitations deadline on [p]laintiff’s breach of contract claim.” Pl.’s Reply Mem. on His Mot. to File Second Am. Compl. at 1.

The Rule requires that “[b]efore filing any nondispositive motion in a civil action, counsel shall discuss the anticipated motion with opposing counsel in a good-faith effort to determine whether there is any opposition to the relief sought and, if there is, to narrow the areas of disagreement.” LCvR 7(m). This “promote[s] the resolution of as many litigation disputes as possible without court intervention, or at least . . . force[s] the parties to narrow the issues that must be brought to the court.” Ellipso, Inc. v. Mann,

(D.D.C. 2006). A district court may deny a motion to amend for failure to comply with Local Rule 7(m). See, e.g., Cohen v. Bd. of Trs. of the Univ. of the D.C.,

(D.C. Cir. 2016) (recounting case history as having been dismissed in district court for, in part, failure to comply with Local Rule 7(m)). However, the Court will decline to do so in its discretion in this case. 16 law,” and that defendant breached the contract, resulting in injury and damages to plaintiff because

it “led to [him] not fully understand[ing] his rights under the policies and how best to proceed.”

Proposed Compl. ¶¶ 11, 39–41.

The parties dispute whether a valid contract existed between the parties. Defendant argues

that the Peace Corps Volunteer Handbooks did not create binding contracts because their existence

does not demonstrate “mutual intent to enter into a contract.” Opp. to Mot. to Amend at 6 (internal

citation omitted). But the Court does not need to reach that question. Plaintiff has failed to allege

facts to show that any damage he suffered was caused by the supposed breach; rather, he

specifically alleges that he exercised his option to resign. Proposed Compl. ¶¶ 25, 27. Because

causation is a necessary element of a breach of contract claim, plaintiff’s motion to amend his

complaint with this claim is futile. See William Loveland Coll. v. Distance Educ. Accrediting

Comm’n,

, 6 (D.C. Cir. 2019), citing Tsintolas,

; Exec. Sandwich

Shoppe, Inc. v. Carr Realty Corp.,

, 736–37 (D.C. 2000) (“Under a breach of contract

[theory,] a defendant is liable for such damages as are the natural consequence and proximate

result of his conduct.”), citing Murphy v. O’Donnell,

(D.C. 1948); Dutcher v.

United States,

(D.D.C. 1990), aff’d,

(D.C. Cir. 1990)

(“Proximate cause is that cause which, in actual continuous sequence, unbroken by an efficient

intervening cause, produces the injury and without which the injury would not have occurred.”).

B. Proposed APA Claim

Generally, when a plaintiff challenges agency action, the APA provides a cause of action

for the plaintiff and a waiver of sovereign immunity by the government. See Am. Rd. & Transp.

Builders Ass’n. v. EPA,

, 80–81 (D.D.C. 2012), aff’d, No. 12–5244,

(D.C. Cir. Jan. 28, 2013) (per curiam). When that is the case, a district court has

subject matter jurisdiction under

, the general federal question statute.

17 However, the APA makes it clear that if another statute provides an “adequate remedy in a court,”

the APA cannot supply the cause of action, which means that it cannot serve as the waiver of

sovereign immunity either. See

(“Agency action made reviewable by statute and

final agency action for which there is no other adequate remedy in a court are subject to judicial

review.”) (emphasis added).

Plaintiff now alleges that the Peace Corps refused to comply with its procedures “in

discriminating against and terminating” him in violation of the Peace Corps Manual, as required

by the APA. Proposed Compl. ¶ 43. Although plaintiff has tried to reframe the legal question, he

has already sought a remedy for the discriminatory and retaliatory conduct he alleges he faced at

the hands of his employer under Title VII. See Am. Compl. ¶¶ 31–33. Since Title VII provides

the plaintiff with an adequate remedy in court, plaintiff has not secured a waiver of the

government’s sovereign immunity, and the Court would lack jurisdiction over the proposed claim.

See Grant v. Dep’t of Treasury,

(D.D.C. 2016) (“A plaintiff cannot

challenge an administrative decision or action under the APA when there is an ‘adequate remedy’

against the employing agency, such as a cause of action under Title VII . . . .”). Therefore,

plaintiff’s motion to amend his complaint with an APA claim is also futile, and the Court will deny

the motion in its entirety.

18 CONCLUSION

For the foregoing reasons, defendant’s motion to dismiss will be GRANTED, and

plaintiff’s motion to amend the complaint will be DENIED.

A separate order will issue.

AMY BERMAN JACKSON United States District Judge

DATE: February 9, 2023

19