United States District Court, District of Columbia
JERRY W. JONES, Plaintiff
JULIAN CASTRO, Defendant
MEMORANDUM OPINION and ORDER
COLLEEN KOLLAR-KOTELLY United States District Judge
case brought under Title VII of the Civil Rights Act of 1964,
as amended, Plaintiff Jerry Jones asserts retaliation and
discrimination claims regarding actions of his employer, the
United States Department of Housing and Urban Development
(“HUD”). Before the Court is Plaintiff’s
 Motion for Leave to Amend Complaint. Previously, the
Court granted in part and denied in part Defendant’s
 Motion for Judgment on the Pleadings. The Court granted
the motion with respect to Plaintiff’s retaliation
claim and dismissed that claim with prejudice. The Court also
granted the motion with respect to Plaintiff’s
discrimination claims insofar as they were based on adverse
actions other than the five-day suspension and
reassignment of Plaintiff by HUD. The Court otherwise denied
the motion. After the Court resolved that motion but before
the Court held an Initial Scheduling Conference and set a
period for discovery, Plaintiff moved to amend the complaint.
Through that motion, Plaintiff seeks to (a) add a new
retaliation claim based on an alleged conspiracy to coerce
him to retire and (b) add additional allegations in support
of the retaliation claim that the Court previously dismissed
with prejudice. It is that motion that is now before the
Court. Upon consideration of the pleadings,  the relevant
legal authorities, and the record for purposes of this
motion, the Court DENIES Plaintiff’s  Motion for
Leave to Amend Complaint. For the reasons stated below, the
Court concludes that the proposed amendment is futile, and
therefore, the Court denies the motion.
pertinent background of this case, including the statutory
and regulatory framework, the factual background, and the
procedural background, were laid out previously by this Court
in Jones v. Castro, No. CV 15-310 (CKK), 2016 WL
777917, at *1-*5 (D.D.C. Feb. 29, 2016). There is no need to
do so here once again, and the Court reserves further
presentation of the relevant background for the discussion
Rule of Civil Procedure 54(b) provides that “any order
... that adjudicates fewer than all the claims or the rights
and liabilities of fewer than all the parties ... may be
revised at any time before the entry of a judgment
adjudicating all the claims and all the parties' rights
and liabilities.” A motion to reconsider brought under
Rule 54(b) may be granted “as justice requires.”
Singh v. George Wash. Univ., 383 F.Supp.2d 99, 101
(D.D.C. 2005) (quoting Cobell v. Norton, 224 F.R.D.
266, 272 (D.D.C. 2004)).
the “as justice requires standard, ” it is
appropriate to grant a Rule 54(b) motion “when the
Court has patently misunderstood a party, has made a decision
outside the adversarial issues presented to the Court by the
parties, [or] has made an error not of reasoning but of
apprehension.” Lemmons v. Georgetown Univ.
Hosp., 241 F.R.D. 15, 22 (D.D.C. 2007) (quoting
Singh, 383 F.Supp.2d at 101). “Errors of
apprehension may include the Court's failure to consider
controlling decisions or data that might reasonably be
expected to alter the conclusion reached by the Court.”
Id. (internal formatting omitted). The Court has
broad discretion to consider whether relief is
“necessary under the relevant circumstances.”
Lewis v. District of Columbia, 736 F.Supp.2d 98, 102
(D.D.C. 2010) (internal quotation marks omitted).
under the Federal Rules of Civil Procedure, a party may amend
its pleadings once as a matter of course within a prescribed
time period. See Fed. R. Civ. P. 15(a)(1).
as here, a party seeks to amend its pleadings outside that
time period, it may do so only with the opposing party's
written consent or the district court’s leave.
See Fed. R. Civ. P. 15(a)(2). The decision whether
to grant leave to amend a complaint is entrusted to the sound
discretion of the district court, but leave “should be
freely given unless there is a good reason, such as futility,
to the contrary.” Willoughby v. Potomac Elec. Power
Co., 100 F.3d 999, 1003 (D.C. Cir. 1996), cert.
denied, 520 U.S. 1197 (1997). As the Supreme Court has
If the underlying facts or circumstances relied upon by a
plaintiff may be a proper subject of relief, he ought to be
afforded an opportunity to test his claim on the merits. 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
Foman v. Davis, 371 U.S. 178, 182 (1962). “[A]
district court has discretion to deny a motion to amend on
grounds of futility where the proposed pleading would not
survive a motion to dismiss.” Nat’l Wrestling
Coaches Ass’n v. Dep’t of Educ., 366 F.3d
930, 945 (D.C. Cir. 2004), cert. denied, 545 U.S.
1104 (2005). Review for futility is practically
“identical to review of a Rule 12(b)(6) dismissal based
on the allegations in the amended complaint.” In re
Interbank Funding Corp. Secs. Litig., 629 F.3d 213,
215-16 (D.C. Cir. 2010) (quotation marks omitted). Because
leave to amend should be liberally granted, the party
opposing amendment bears the burden of coming forward with a
colorable basis for denying leave to amend. Abdullah v.
Washington, 530 F.Supp.2d 112, 115 (D.D.C. 2008).
original Complaint in this case included a retaliation claim
through which Plaintiff claimed that a variety of actions
taken by HUD constituted retaliation for Plaintiff’s
previous protected Equal Employment Opportunity
(“EEO”) activity. Complaint
(“Compl.”), ECF No. 1, ¶¶ 113-121. The
Court dismissed the retaliation claim in its entirety with
prejudice. The Court concluded that none of the agency
actions that were the purported basis for that claim
other than Plaintiff’s five-day suspension and
reassignment qualified as materially adverse actions that
qualified legally as bases for a retaliation claim.
Jones, 2016 WL 777917, at *9. The Court further
concluded that, insofar as the retaliation claim was based on
the five-day suspension and reassignment, the Complaint
failed to state a retaliation claim because “Plaintiff
ha[d] not plausibly alleged that retaliation for his
protected activity was the but-for cause of his suspension
and reassignment.” Id. at *12. As noted above,
through the proposed amended complaint, Plaintiff now seeks
(a) to add a new retaliation claim based on an alleged
conspiracy to coerce him to retire and (b) to add additional
allegations in support of the retaliation claim that the
Court previously dismissed with prejudice, specifically with
regard to the five-day suspension and reassignment.
both of these proposed changes relate in some fashion to
Plaintiff’s allegations regarding a purported
conspiracy to coerce him to retire, they raise distinct
issues. Therefore, the Court first addresses the new
retaliation claim that Plaintiff seeks to add to the
operative complaint. The Court then addresses
Plaintiff’s request to add new allegations in support
of the previously-dismissed claim for retaliation, which
Plaintiff seeks to have reinstated with regard to the
five-day suspension and reassignment.
Proposed Additional Retaliation Claim
seeks to add a wholly new retaliation claim based on an
alleged conspiracy by members of HUD’s Office of
General Counsel to coerce Plaintiff into retiring prior to
Hoban-Moore’s decision regarding the disciplinary
proceeding as to Plaintiff. Defendant argues that the alleged
retirement conspiracy does not qualify as a materially
adverse action that could serve as proper basis for a
retaliation claim. The Court agrees.
explained by the Court in resolving Defendant’s Motion
for Judgment on the Pleadings, “[t]o prove unlawful
retaliation, a plaintiff must show: (1) that he opposed a
practice made unlawful by Title VII; (2) that the employer
took a materially adverse action against him; and (3) that
the employer took the action ‘because’ the
employee opposed the practice.” McGrath v.
Clinton,666 F.3d 1377, 1380 (D.C. Cir. 2012).
“Materially adverse action would ‘dissuade[ ] a
reasonable worker from making or supporting a charge
of discrimination.’ ” Bridgeforth v.
Jewell, 721 F.3d 661, 663 (D.C. Cir. 2013) (quoting
Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53, 58 (2006)) (emphasis added). “To be materially
adverse, the ...