United States District Court, District of Columbia
GARY L. JACKSON, Plaintiff,
RICHARD V. SPENCER, Secretary, UNITED STATES DEPARTMENT OF THE NAVY, Defendant.
L. FRIEDRICH, UNITED STATES DISTRICT JUDGE
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. 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
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.
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.
result of his reassignment and his alleged continued
mistreatment, in September 1990,  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.
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.
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.
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.
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.
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.
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.
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.
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 ...