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Jackson v. Spencer

United States District Court, District of Columbia

May 15, 2018

GARY L. JACKSON, Plaintiff,
v.
RICHARD V. SPENCER, Secretary, UNITED STATES DEPARTMENT OF THE NAVY, Defendant.

          MEMORANDUM OPINION

          DABNEY L. FRIEDRICH, UNITED STATES DISTRICT JUDGE

         In this action, pro se plaintiff Gary L. Jackson asserts employment discrimination claims based on race, color, and sex against his former employer, the Secretary of the United States Department of the Navy.[1] Compl. at 13, Dkt. 1; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a). Jackson seeks injunctive and declaratory relief, as well as damages and attorney's fees, for alleged “retaliation, harassment, and constructive discharge because of [his] race (Afro-American), color [(]Dark Brown), and sex (Male).” Compl. at 13, 17-18. Before the Court is the defendant's Motion to Dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Dkt. 8. For the reasons that follow, the Court will grant the defendant's motion pursuant to Rule 12(b)(1).

         I. BACKGROUND

         Jackson, an African-American male, enlisted in the Unites States Marine Corps on June 1, 1977. Compl. at 1. During his Marine Corps career, Jackson received numerous decorations, letters of appreciation, and commendations. Id. He was honorably discharged on January 15, 1991. Id.

         Jackson's discrimination claims stem from his final Marine Corps assignment to Henderson Hall, Marine Corps Headquarters in Arlington, Virginia. Id. at 3. While there, his superiors allegedly retaliated against him for refusing to approve a warehouse inventory inspection in August 1988 and subsequently requesting an investigation by the U.S. Marine Corps Inspector General. Id. at 2-4. Thereafter, the Inspector General allegedly failed to investigate Jackson's allegations, and Jackson's chain of command threatened to discharge him from the Marine Corps. Id. at 4-5. Jackson's superiors also discussed ordering him to appear before a competency review board but were dissuaded by a gunnery sergeant who expressed concerns about Jackson's harsh treatment. Id. at 5. Additionally, Jackson's superiors delayed for a short time, but eventually granted, Jackson's request to attend the Non-Commissioned Officer Academy. Id. When Jackson returned to Arlington in late 1988, he was removed from the warehouse chief assignment and placed in a special services storefront manager assignment, one he viewed as inconsistent with his military operational specialty and rank. Id. at 6.

         As a result of his reassignment and his alleged continued mistreatment, in September 1990, [2] Jackson made a request through his chain of command for “mast”-an opportunity to express his concerns to his commanding officer. Id.; see also Navy Marine Corps Dir. 1700.23F; Def.'s Mem. at 4 n.7. Although his superiors allegedly threatened to demote and discharge him for this demand, Jackson persisted. Compl. at 7. In January 1990, Brigadier General Gail M. Reals reassigned Jackson to the warehouse position. Id. Later that year, Captain Jeffrey Nelson, Jackson's former commander, allegedly placed “an unsubstantiated page 11” in his military record for a violation of security procedure, lodged an adverse fitness report against him, and requested a Technical/Incompetence Review Board. Id. Jackson filed a rebuttal and requested, without success, to have the adverse fitness report removed. Id.

         In June 1990, Jackson applied for re-enlistment in the Marine Corps. Id. at 9. According to Jackson, his superiors held his application until January 15, 1991, the expiration date for his re-enlistment, and then rushed him through medical discharge processing so that he would be deemed physically fit for discharge, despite his respiratory ailment and other health issues. Id. at 9-10. Jackson also alleges that his superiors modified his re-enlistment code-contrary to the Office of the Commandant of the Marine Corps' instructions-to reflect a code of RE-4 (ineligible to re-enlist), rather than RE-3C (eligible to re-enlist). Id. at 10-11.

         Before his discharge, Jackson's supervisors leveled a wide range of criticisms against him. Among other things, Captain Nelson reported that Jackson did not work well with his peers or supervisors and demonstrated inadequate leadership, poor performance, and antisocial and discriminatory behavior. Dkt. 8-3 at 6. While First Lieutenant Jeffrey Baldyga gave Jackson a favorable review and indicated that he was “ready for promotion, ” he also noted that Jackson was “not always willing to accept responsibility of his section” and “had difficulty communicating with others.” Id. at 13. Based on the criticisms of these and other officers, as well as his own personal knowledge, Colonel R. R. Buckley “strongly recommend[ed], for the best interests of the U.S. Marine Corps, that . . . Jackson's request for reenlistment be disapproved.” Dkt. 8-8 at 5 (emphasis in original). Colonel Buckley concluded that Jackson was “totally unprofessional, absolutely unqualified to be promoted and should never be considered for reenlistment/retention. He is one of the poorest examples of a [Senior Non-commissioned Officer] . . . .” Id.

         Before leaving the Marine Corps, Jackson applied to the Board for Correction of Naval Records (the Board) to have derogatory material removed from his fitness records. Dkt 8-2 at 1- 3. Jackson's December 4, 1990 application alleged that he had become the target of “retaliation and continual harassment” as a result of his requests to speak to his commanding officer. Id. at 1. In support, he included a September 1989 letter in which he requested mast and referred to his change in duties as “an act of discrimination and retaliation” by his superiors who “are prejudiced against blacks who stand up to them.” Id. at 7.

         On January 15, 1991, Jackson was honorably discharged from the Marines. Dkt. 1-2 at 9. Jackson alleges that, thereafter, Captain Nelson blocked Jackson from receiving a Navy Achievement Award for his performance while serving in the warehouse inspection position, as well as a commendation for securing top secret documents discovered in a rental vehicle. Compl. at 8.

         In March 1991, Jackson filed a second application with the Board requesting “to have [his] reentry code upgraded.” Dkt. 8-3 at 1. In April 1991, the U.S. Marine Corps Performance Evaluation Review Board issued an advisory opinion finding that Jackson's fitness report was appropriate and should remain in his record, and separately determined that the reenlistment code was correctly assigned. Dkt. 8-3 at 4-7. And on April 14, 1992, the Board issued an adverse decision denying both of Jackson's 1990 and 1991 applications. Dkt. 8-5 at 1. The Board concluded that the “evidence submitted was insufficient to establish the existence of probable material error or injustice.” Id. The Board found no basis for removing the fitness reports or the adverse page 11 counseling. Id. at 2. The Board also determined that the reenlistment code was properly assigned. Id.

         Following the denial of his two applications, Jackson filed four additional applications with the Board. On October 27, 1992, Jackson alleged that “there was a concerted effort on the part of my superiors to prevent me from re-enlisting” based on “negative generalities” and requested that his reentry code be upgraded from “4” to “1.” Dkt. 8-6 at 3. On March 23, 1993, Jackson filed another application requesting the removal of the RE-4 code and raising various other “negative generalities.” Id. at 1. While Jackson's 1992 and 1993 applications contained new statements relating to his honorable service, the Board consolidated his applications, concluded that the statements did not constitute material evidence warranting reconsideration, and denied Jackson relief. Dkt. 8-7 at 1.

         On August 29, 1994, Jackson filed a fifth application with the Board requesting an upgrade of his reentry code. Dkt 8-8 at 1-2. As new evidence, Jackson included his chain of command's recommendation denying his request for reenlistment and a message from the Commandant of the Marine Corps that had not been included in his previous application. Id. at 5-7. On October 14, 1994, the Board again refused to reconsider Mr. Jackson's case for lack “any new and material evidence or other matter not previous considered by the Board.” Dkt 8-9 at 1.

         In a sixth and final May 15, 2000 application to the Board, Jackson alleged that his reentry code was “unjustly entered” and that he did not sign his form for release as required. Dkt. 8-10 at 1. On July 17, 2000, the Board again concluded that Jackson had ...


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