The opinion of the court was delivered by: Paul L. Friedman United States District Judge
This matter is before the Court on the defendants' motion for judgment on the pleadings or, in the alternative, for summary judgment, and the plaintiff's motions for leave to amend or correct his complaint and to re-open or extend discovery. For the reasons stated, the defendants' motion will be granted and all other pending motions will be denied.
The plaintiff, proceeding in forma pauperis and filing a complaint pro se, alleges employment discrimination and sues under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq., the Equal Pay Act, 29 U.S.C. § 206(d), and 42 U.S.C. § 1981. The plaintiff, born in 1946, is an African-American male of "fair complexion" with diabetes and a "skeletal/back/neck disability" that predates the events giving rise to this action. Compl. ¶¶ 21-23; Aff. of Roger Vann Smith ¶¶ 1,7, Nov. 18, 2008 ("Smith Aff."), filed with Pl.'s Opp'n to Defs.' Mot. for J. on the Pleadings or for Summ. J. ("Opp'n"). The plaintiff was hired by the District of Columbia Public Schools ("DCPS") in January 2003 as a contract specialist at pay grade 11, and in June 2003 received an overall performance rating of "excellent." Compl. ¶ 7; Smith Aff. ¶¶ 6, 10. In January 2004, the plaintiff's position was abolished, along with three similar positions held by two black females and one white male. Compl. ¶ 8. Shortly thereafter, the plaintiff was re-hired by DCPS in the same office but in a temporary position. Compl. ¶ 9; Smith Aff. ¶ 12. By the end of March 2004 the plaintiff was working as a contract specialist in pay grade 12, step 1, and at the end of June was evaluated by his supervisor for the twelve months immediately prior as being "capable of handling large workloads," "capable of performing his duties with a minimum of assistance and supervision," "willing to assist co-workers," "a dedicated and conscientious worker," who produced a "satisfactory" amount of "excellent" quality work. Compl. ¶¶ 12-14; Smith Aff. ¶¶ 13-15.
The plaintiff, along with others in his office, was required to work one weekend at the end of July 2004 to meet an approaching deadline. Compl. ¶ 15; Smith Aff. ¶¶ 16, 17. The plaintiff worked until 3:30 p.m. on Saturday. Smith Aff. ¶ 17. Then, arriving a little before 9:00 a.m. on Sunday, the plaintiff and others worked without air conditioning until plaintiff started feeling ill in mid-afternoon; he left work shortly after 4:30 p.m., looking and feeling ill. Compl. ¶ 15; Smith Aff. ¶¶ 16, 17. "As a result of [the plaintiff's] breakdown on [Sunday,] August 1, 2004," Smith Aff. ¶ 18, except for two days in early August, the plaintiff did not return to work for the next twenty-one weeks, through December 13, 2004, Compl. ¶ 16. On September 30, 2004, while the plaintiff was not working, DCPS extended plaintiff's employment as a temporary contract specialist in pay grade 12 through September 30, 2005. Compl. ¶ 17; Smith Aff. ¶ 19.
In mid-July 2005, the plaintiff applied for a vacant position as contract specialist with DCPS at pay grade 13, but he was not hired for that position. Compl. ¶¶ 37, 38. Three weeks later, on August 4, 2005, the position remained open. Compl. ¶ 37. The record does not indicate whether the position remained open after that point. Plaintiff avers, however, that sometime between February 2004 and August 2005, the plaintiff's two black female, younger colleagues whose positions had been abolished along with plaintiff's in January 2004, were hired into permanent contract specialist positions at grade level 13, making more money than the plaintiff was making, while allegedly doing the same work. Smith Aff. ¶ 25.
Although the complaint does not so state, see Compl. ¶¶ 54-56 (stating that "nothing further transpired" in response to his requests regarding his employment status), it is evident that the plaintiff's employment was extended further, because he was still working for DCPS after September 30, 2005. On November 17, 2005, in the context of a contractor being over-budget and seeking additional funds, the plaintiff remarked to the contractor's female representative, "This project is growing like your chest," a statement the plaintiff says that he did not intend "as sexual." Smith Aff. ¶ 31. When the plaintiff's remark was reported to the plaintiff's supervisor, James Armstrong, a defendant in this action, with a complaint that the remark was sexually harassing, "an investigation was begun." Smith Aff. ¶ 32.*fn1
In late December 2005, while the plaintiff was on vacation, he sought "medical care to address the re-activation of [his] job-stress-related disabilities." Smith Aff. ¶ 33. A month later, in late January 2006, the plaintiff applied for three other contract specialist positions, including supervisory positions, with higher pay, but was not hired into any of those positions. See Compl. ¶¶ 42-44, 46-48, 50-52; Smith Aff. ¶ 34. While it is clear that the plaintiff was not selected for any of those positions, the record is silent as to whether the positions were filled or not. On February 3, 2006, the plaintiff was denied overtime pay. Compl. ¶ 60. Then, "[o]n or about February 15, 2006," the plaintiff was removed "from the contract workload database, causing work to stop being assigned to [him]." Smith Aff. ¶ 36. The complaint alleges that "[d]efendants had planned during a face-to-face meeting on February 17, 2006 to either fire plaintiff, or in the alternative, place plaintiff on suspension with or without pay." Compl. ¶ 34. On Friday, February 17, 2006, when the plaintiff was summoned to an afternoon meeting with DCPS managers - which the complaint obliquely refers to as "further . . . undue on the job harassment by defendants, especially defendants Bazemore and Armstrong," Compl. ¶ 32 - he "requested notice of the meeting's purpose and time to get counsel." Smith Aff. ¶ 37. Before the meeting commenced, the plaintiff "became ill from emotional distress and had to depart work." Compl. ¶ 32; see also Smith Aff. ¶ 37. The plaintiff's application for sick leave, which he submitted just prior to leaving work on February 17, was not authorized in advance, was indefinite in duration, and stated as the sole reason for the absence was "stress to neck and back." See Defs.' Mot. for J. on the Pleadings, or in the Alternative, Mot. for Summ. J. ("Defs.' Mot."), Ex. 3.
The plaintiff avers that on February 23 and 24, 2006, he "sent emails to the responsible supervisors informing them of my medical reasons for not reporting to work." Smith Aff. ¶ 38. By letter dated February 24, 2006, addressed to the plaintiff at his local address, the DCPS directed the plaintiff to return to work by Tuesday, February 28, 2006 or to provide medical documentation for his absence and an expected return date. See Defs.' Mot. Ex. 5. The plaintiff received the February 24 letter on March 3, 2006. Smith Aff. ¶ 39. By letter dated March 3, 2006, the DCPS terminated the plaintiff's employment for abandonment of his position. See Defs.' Mot. Ex. 6. On March 6 and 7, 2006, the plaintiff "sent emails and faxes to the responsible officials of the DCPS explaining my absences [and] requesting a hearing" but "received no replies." Smith Aff. ¶ 39. None of the written communications from the plaintiff to the defendants was submitted for the record.
Three weeks after learning of his termination, the plaintiff filed an administrative charge of discrimination with the District of Columbia Office of Human Rights, alleging race, age, and sex discrimination. See Defs.' Mot. Ex. 1. On September 26, 2006, the plaintiff submitted this pro se complaint for filing, asserting claims not only for race, age, and sex discrimination, but also for disability discrimination, and naming as defendants Clifford Janey, Kevin Green, Glorious Bazemore, James Armstrong, Tony Demasi, and Lorretta Blackwell, all of whom were employees of the District of Columbia Public Schools. See Compl. ¶¶ 1, 3. In support of his otherwise conclusory allegations of race, sex, and age discrimination, the plaintiff has averred that one of his supervisors,
Ms. Bazemore[,] treated her 'inner circle' differently than those outside it, including me, in terms of permanent status, overtime, pay and promotions. The people in Ms. Bazemore's inner circle were young black females, whereas I am a light-complected African-American man born in 1946. Ms. Bazemore is reported to have remarked unfavorably on my color as appearing white.
Shortly after filing his pro se complaint, the plaintiff, who earned a law degree from Howard University in 1979, Smith Aff. ¶ 5, moved for appointed counsel. The Court denied his request for counsel the first and second times, but appointed pro bono counsel in response to the plaintiff's third motion; counsel entered an appearance for the plaintiff on November 27, 2007.*fn2 Five months after pro bono counsel entered his appearance on behalf of the plaintiff, the parties filed a joint report stating in pertinent part that "[t]he parties agree not to file amendments to the pleadings or to join additional parties." See Joint Meet & Confer Statement, at 2 (Apr. 16, 2008). Upon the recommendation of the parties, the Court entered a scheduling order which, among other things: (1) ordered that "[t]he parties will not amend the pleadings or join additional parties," (2) set October 20, 2008 as the deadline for the close of written and oral discovery, including experts, and (3) set a deadline of December 18, 2008 for filing dispositive motions. See Order ¶¶ 1, 8, 9 (Apr. 23, 2008). The defendants timely filed a dispositive motion and the plaintiff timely filed an opposition.
Despite the scheduling order and the agreement between the parties, which the plaintiff acknowledges, the plaintiff seeks leave to amend his complaint, which defendants oppose. It appears that the only difference between the proposed amended complaint and the original complaint is the substitution of the District of Columbia in the amended complaint as the sole defendant for the individuals named in the original complaint. See Pl.'s Mot. for Leave to File an Amended Complaint, Ex. Am. Compl. The plaintiff also filed a motion to re-open or extend discovery, as to which the defendants have taken no position. The motion to re-open discovery acknowledges that the parties did not diligently pursue ...