United States District Court, District of Columbia
ROSEMARY M. COLLYER United States District Judge
Plaintiff Darin Jones, who presently proceeds pro se, brings this action against Defendants U.S. Department of Justice (DOJ) and the Federal Bureau of Investigation (FBI), seeking damages pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., for retaliation and gender and age discrimination. Before the Court is Defendants’ Motion to Dismiss or in the Alternative for Summary Judgment, Mr. Jones’ Motion to Amend Complaint to Add Race Discrimination, Mr. Jones’ Surreality, which the Court construes as a Motion for Default Judgment, and Defendants’ Motion to Strike Mr. Jones’ Surreality. For the reasons below, the motion to dismiss or for summary judgment will be granted and the motion to strike will be denied. Mr. Jones’ motions will be denied.
Starting in August 2011, Mr. Jones was employed by FBI as a Supervisory Contract Specialist and was assigned to work at DOJ. Com pl. [Kt. 1] ¶ 11; Answer [Kt. 3] ¶ 11. Mr. Jones believed that he was promised a financial incentive-a pay-match based on a private sector job offer-to come work for FBI. See Mot. to Dismiss or For Sum. J. [Kt. 21] (Des. Mot.), Report of Counseling [Kt. 21-1] at 3. After he had already begun working for FBI, however, Mr. Jones was informed that he was not entitled to matching pay. Id. In July 2012, Mr. Jones complained of race, sex, and age discrimination based on the denial of matching pay and retaliation for pursuing the matching pay issue. Id. at 2-3. Mr. Jones filed a formal equal employment opportunity (EEO) complaint on August 15, 2012, alleging race, sex, and age discrimination and reprisal due to F Bi's failure to match pay and F Bi's denial of his application for student-loan repayment assistance. See Des. Mot., Formal EEO Complaint [Kt. 21-2] at 1-2. By letter dated August 22, 2012, one week before the end of Mr. Jones’ probationary period, DOJ notified Mr. Jones that his employment would be terminated effective August 24, 2012 for failure to meet FBI suitability standards. Id., Termination Letter [Kt. 21-3]. Apparently, the letter dated August 22, 2015 was given to Mr. Jones on August 24, 2105, his termination date. See Opp. to Def. Statement of Facts [Kt. 27-1] at 2.
Mr. Jones appealed his termination to the Merit Systems Protection Board (MSPB) on September 20, 2012, alleging that he was terminated “because of either: (1) the filing of an EEO Complaint in August 2012; or (2) disclosures that were protected under whistle blower protection.” Des. Mot., MSPB Form 185 [Kt. 21-4] at 3 (MSPB Appeal). Before MSPB, Mr. Jones argued that (1) he was entitled to appeal his termination to MSPB because his prior military service qualified him as preference-eligible and (2) his prior federal service with another agency meant that he was not a probationary employee and, therefore, had appeal rights as a regular employee. See Com pl., Ex. 1 (MSPB Initial Decision) at 2.
MSPB dismissed Mr. Jones’ appeal for lack of jurisdiction on December 6, 2012. Id. at 1, 2 (“Employees of the FBI who are not preference-eligible do not have the right to appeal adverse actions to the Board.”). MSPB concluded that the dates of Mr. Jones’ service in the Navy did not qualify him as preference-eligible to appeal his discharge to MSPB. Id. at 4. MSPB’s Initial Decision specified that it was an “initial decision” that would “become final on January 10, 2013, unless a petition for review is filed by that date.” Id. at 4 (emphasis in original). Further, MSPB’s Initial Decision clearly directed that Mr. Jones could ask for Board review of the Initial Decision by filing a petition for review or could seek judicial review of the Board’s Final Decision by filing a petition with the United States Court of Appeals for the Federal Circuit. Id. at 5, 8.
In response to Mr. Jones’ August 2012 Formal EEO Complaint, FBI’s Office of Equal Employment Opportunity Affairs (FBI OEEOA) notified Mr. Jones by letter dated December 7, 2012 that it would investigate his race, sex, and age claims regarding the denial of matching pay and his race, sex, age, and retaliation claims regarding the rejection of his student loan repayment application. See Defs. Mot., OEEOA Letter [Dkt. 21-5] at 1-2. FBI OEEOA rejected Mr. Jones’ retaliation claim based on the failure to match private-sector pay because he had alleged he was retaliated against due to comments made in a January 2012 meeting with supervisors and others, which does not constitute EEO-protected activity. Id. By letter to FBI OEEOA dated December 21, 2012, Mr. Jones’ counsel tried to add a claim for discriminatory discharge to his Formal EEO Complaint. See, id., Jones Ltr. [Dkt. 21-6] at 1.
Mr. Jones filed this lawsuit on January 4, 2013, alleging retaliation and discrimination on the basis of gender and age in violation of Title VII. Compl. ¶¶ 19-31.Defendants filed an Answer to the Complaint on April 18, 2013 and asserted the affirmative defenses that Mr. Jones failed to state a claim upon which relief may be granted and that he had failed to exhaust his administrative remedies. See Answer at 1. The Court held an initial scheduling conference on May 5, 2013 and set a fact-discovery deadline of December 5, 2013, which was extended until December 31, 2014. See Scheduling Order [Dkt. 6]; Minute Order 10/24/13; Minute Order 6/10/14; Minute Order 9/29/14.
On October 28, 2013, MSPB affirmed its Initial Decision dismissing Mr. Jones’ appeal for lack of jurisdiction. See Opp’n at 3 n. 3. Mr. Jones appealed MSPB’s decision to the U.S. Court of Appeals for the Federal Circuit, which affirmed MSPB on March 18, 2015. See Jones v. MSPB, No. 2014-3050 (Fed. Cir. March 18, 2015), reh’g denied (April 8, 2015).
By letter dated April 4, 2013, FBI OEEOA advised Mr. Jones that it could not amend his Formal EEO Complaint to add a claim based on his discharge because he had already filed suit here alleging the same claim. See Defs. Mot., OEEOA Ltr. [Dkt. 21-7] at 1.
On April 15, 2014, Mr. Jones moved to amend his Complaint to add a claim for “termination based on age.” See Mot. to Amend [Dkt. 13] at 2. Defendants did not oppose and the Court granted the motion. See Minute Order 5/9/14.
Defendants filed their motion to dismiss or for summary judgment on October 10, 2014. See Defs. Mot. In addition, currently pending before the Court are Mr. Jones’ motion to amend his complaint to add a claim for race discrimination, Mr. Jones’ two motions to compel production of documents, Mr. Jones’ Surreply, which the Court construes as a Motion for Default Judgment, and Defendants’ Motion to Strike Mr. Jones’ Surreply. See Mot. to Amend Complaint [Dkt. 16]; Mots. to Compel [Dkts. 17 and 19]; Response to Defendants’ Reply [Dkt. 29] (Default Mot.); Mot. to Strike [Dkt. 30].
II. LEGAL STANDARD
Defendants styled their motion as a Motion to Dismiss or for Summary Judgment. Because Defendants had already filed an Answer to Mr. Jones’ Complaint, see Ans. [Dkt. 3], a motion to dismiss under Fed.R.Civ.P. 12(b)(6) is untimely. See Fed. R. Civ. P. 12(b) (“A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed.”). “[C]ourts routinely treat motions to dismiss that are filed after a responsive pleading ...