The opinion of the court was delivered by: Chief Judge Royce C. Lamberth.
Plaintiff Theodore Wilson, proceeding pro se, brings this action against Timothy Cox, Chief Operating Officer of the Armed Forces Retirement Home-Washington ("the Home" or "AFRH-Washington"), and the United States, alleging violations of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq., and the Rehabilitation Act, 29 U.S.C. § 701 et seq. Wilson asserts that he was unlawfully discriminated against on the basis of his age when his security guard position at the Home was converted from competitive service to excepted service status, and again when he was dismissed from that position. Before the Court are defendants' motion to dismiss and for summary judgment [Dkt. #26] and Wilson's motion for leave to amend his complaint [Dkt. #36]. Upon consideration of the motions, the oppositions thereto, and the record of this case, the Court concludes that defendants' motion should be granted and Wilson's motion should be denied.
In May 2001, Wilson began serving as a security guard at the Home, whose purpose is to provide "residences and related services for certain retired and former members of the Armed Forces." 24 U.S.C. § 411(b). In December 2002, Wilson, a veteran, moved into the Home, continuing to serve as a security guard there. As a result of his move, Wilson became a "resident employee," which resulted in a change of his federal government employment status from "competitive service" to "excepted service."*fn1 Am. Compl. ¶ 9. Wilson claims that, at the time, he was unaware of the difference between the two statuses, or of the implications of such an adjustment. Id. He did, however, mail a letter to the Home's Office of Personnel Services on December 3, 2002, stating that he had "resigned [his] status as a civil service employee" on November 30, 2002. Defs.' Mem. in Supp. of Defs.' Mot. for Summ. J. ("Defs.' Mem.") Ex. H (Letter from Theodore Wilson (Dec. 3, 2002)). Wilson states that he had been told that, as a result of his move into the Home, he needed to mail the letter in order to withdraw from the civil service retirement fund, but not that any other changes related to his employment status had occurred. Am. Compl. ¶ 13; Pl.'s Opp'n to Defs.' Mot. ("Pl.'s Opp'n") at 2.
The following summer, Wilson and the other resident security guards were notified that their employment would be terminated in the coming months, and that they would thereafter have the option to work under a stipend program that would compensate them for no more than twelve hours of work per month. Am. Compl. ¶ 10. Any hours worked beyond those twelve would be uncompensated. Id. Home officials later explained this decision to residents as being necessitated by financial considerations. Am. Compl. ¶ 22. In November, Wilson was required to sign a "letter of notification" that designated January 4, 2004 as his last day of work. Am. Compl. ¶ 11. After January 4, Wilson ceased working as a resident security guard. Am. Compl. ¶ 12. Wilson avers that the abolishment of the resident employee program was motivated by a desire to take advantage of the residents on the basis of their ages by forcing them, through the stipend program that replaced the employment program, to work for less money. Am. Compl. ¶ 22.
Wilson subsequently contacted an Equal Employment Opportunity ("EEO") counselor and asserted that his termination had been based on his age. After the counselor failed to resolve the dispute informally, Wilson filed a formal EEO complaint, which was dismissed in June 2006. Am. Compl. ¶¶ 15--16. In September 2006, Wilson wrote to the Merit Systems Protection Board ("MSPB"), which agreed to hear his complaint. An MSPB administrative law judge conducted a hearing on March 16, 2007, and ruled against Wilson. Am. Compl. ¶¶ 17--18. Wilson appealed and was notified in September 2007 that his appeal had been denied. Am. Compl. ¶ 19. While the administrative process was underway, Wilson commenced this action. Defendants have moved to dismiss Wilson's complaint for failure to state a claim upon which relief may be granted, or in the alternative, for summary judgment. Since then, Wilson has filed a motion for leave to amend his complaint.
A. Failure to State a Claim Upon Which Relief May Be Granted
On a motion to dismiss pursuant to Federal Rule of Civil Procedure Rule 12(b)(6), the Court will dismiss a complaint, or a portion thereof, that fails to plead "enough facts to state a claim for relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Thus, although a complaint need not contain detailed factual allegations, it must recite facts sufficient to at least "raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 555. A "pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 555). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Id. (quoting Twombly, 550 U.S. at 557) (alterations in original). At bottom, a complaint must contain sufficient factual matter that, accepted as true, would allow the Court "to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
A motion for summary judgment should be granted only "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). A material fact is one that "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant must support its factual positions by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . , admissions, interrogatory answers, or other materials." FED. R. CIV. P. 56(c)(1)(A); see Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
If the moving party meets its burden, the non-moving party must then establish that a genuine dispute as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). To meet its burden, the non-moving party must show that "the evidence is such that a reasonable jury could return a verdict" in its favor. Anderson, 477 U.S. at 248. Such evidence must consist of more than mere unsupported allegations or denials and must set forth specific facts showing that there is a genuine dispute for trial. See FED. R. CIV. P. 56(c)(1), (e); Celotex, 477 U.S. at 322 n.3. If the evidence is "merely colorable" or "not significantly probative," summary judgment may be granted. Anderson, 477 U.S. at 249--50.
The Court first addresses defendants' motion to dismiss and for summary judgment. The Court then explains why Wilson's motion for leave to file a second amended complaint should be denied.
A. Defendants' Motion to Dismiss and for Summary Judgment Must be Granted
1. Wilson Has Failed to State a Claim Under the Rehabilitation Act
Defendants assert that Wilson's Rehabilitation Act claim must be dismissed because it is unexplained and unsupported by factual allegations. The Court agrees. Beyond stating that he brings his case pursuant to the ADEA and the Rehabilitation Act, Wilson makes no further mention of the latter. See Am. Compl. ¶ 3. Indeed, neither Wilson's amended complaint nor his opposition brief makes any mention of a disability that could have formed the basis for a Rehabilitation Act claim. See 29 U.S.C. § 791(a) (prohibiting discrimination against persons with disabilities in federal agencies, programs or activities). The complaint's vague mention of the Act does not constitute "a claim for relief that is plausible on its face," see Twombly, 550 U.S. at 570, and must be dismissed.
2. Summary Judgment for Defendants is Appropriate as to Wilson's ADEA Claims
The ADEA requires that "[a]ll personnel actions affecting employees or applicants for employment who are at least 40 years of age . . . in executive agencies . . . be made free from any discrimination based on age." 29 U.S.C. § 633a(a). In the absence of direct evidence of age discrimination, the courts evaluate ADEA claims under the burden-shifting scheme articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). See Barnette v. Chertoff, 453 F.3d 513, 515 (D.C. Cir. 2006). Under that framework, a plaintiff "bears the initial burden of establishing a prima facie case, meaning she must prove by a preponderance of the evidence 'that (1) she is a member of a protected class; (2) she suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination.'" Id. (quoting Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999)).*fn2 Where, however, an employer has asserted a legitimate, non-discriminatory reason for the adverse employment action being challenged, the Court sets aside the McDonnell Douglas framework and asks: "Has the employee produced sufficient evidence for a reasonable jury to find that the employer's asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated against the employee . . . ?" Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008); see Baloch v. Kempthorne, 550 F.3d 1191, 1197 n.2, 1200 (D.C. Cir. 2008) (applying Brady to ADEA claims).
Wilson challenges two separate acts taken by defendants: his change in status from competitive to excepted service upon moving into the Home, and his subsequent termination as a resident security guard. The Court will address each action in turn. Because it relies on the exhibits submitted by the parties, the Court applies the summary judgment standard in its review of the two allegations.*fn3 See Federal Rule of Civil Procedure 12(d) ("If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, ...