UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

ANDREW YANG, )

)

Plaintiff, )

)

v. ) Civil Action No. 21-1698 (ABJ)

)

CAROL SPAHN, )

Chief Executive Officer, U.S. Peace Corps, )

)

Defendant. )

____________________________________)

MEMORANDUM OPINION

On June 24, 2021, plaintiff Andrew Yang brought this action in the United States District 

Court for the District of Columbia against the Director of the Peace Corps, defendant Josephine 

K. Olson.

1 Compl. [Dkt. # 1].2

 Plaintiff, a former Peace Corps volunteer in the country of Georgia, 

alleges that defendant unlawfully discriminated against him on the basis of his sex and unlawfully

retaliated against him for his protected complaints of sex discrimination, in violation of Title VII 

of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. Am. Compl. ¶¶ 4, 26–27, 

32. These events, plaintiff claims, led to the termination of his employment. Am. Compl. ¶¶ 27, 

32. 

The defendant filed a motion to dismiss these counts pursuant to Federal Rule of Civil 

Procedure 12(b)(6). Def.’s Mot. to Dismiss [Dkt. # 14], Mem. of Law in Supp. of Def.’s Mot. to 

1 On December 9, 2021, Carol Spahn, the Chief Executive Officer of the Peace Corps, was 

automatically substituted as a defendant pursuant to Federal Rule of Civil Procedure 25(d). 

2 Plaintiff filed an amended complaint on July 5, 2021 – eleven days after filing his first 

complaint. Am. Compl. [Dkt. # 6] at 6; Compl. at 6. This did not require the Court’s permission

because “[a] party may amend its pleading once as a matter of course within . . . 21 days after 

serving it.” Fed. R. Civ. P. 15(a)(1)(A).
2

Dismiss [Dkt. # 14-1] (“Mot. to Dismiss”). The motion is fully briefed. See Pl.’s Br. in Opp. to 

Def.’s Mot. to Dismiss [Dkt. # 18] (“Opp. to Mot. to Dismiss”); Def.’s Reply Mem. in Further 

Supp. of Mot. to Dismiss [Dkt. # 19] (“Reply in Supp. of Mot. to Dismiss”); Notice of Suppl. 

Authority [Dkt. # 21].

On December 20, 2022 – nearly a year and a half after his complaint was originally filed –

plaintiff filed what was styled as an “expedited motion,” to amend his complaint again pursuant to 

Federal Rule of Civil Procedure 15(a)(2).3 Pl.’s Expedited Mot. to File Second Am. Compl. 

Pursuant to Fed. R. Civ. P. 15(a)(2) [Dkt. # 23] (“Mot. to Amend”) at 1. While he does not seek 

to change the first count alleging discrimination and retaliation, the proposed second amended 

complaint adds two additional claims: one for breach of contract and one arising under the 

Administrative Procedures Act (“APA”). Id.; see Second Am. Compl., Mot. to Amend [Dkt. # 23-

1] (“Proposed Compl.”) ¶¶ 38–44.4

 Defendant opposes the motion. Def.’s Opp. to Pl.’s Mot. to 

3 On December 2, 2021, plaintiff attached a proposed amended complaint to his opposition 

to defendant’s motion to dismiss, informing the Court he was including it in case “this Court 

believes the Amended Complaint to be insufficient to survive Defendant’s motion.” Opp. to 

Motion to Dismiss at 5; see Proposed Second Am. Compl. [Dkt. # 18-1]. Because plaintiff had 

already amended his pleading and more than twenty-one days had passed, plaintiff could not 

amend the complaint without either “the opposing party’s written consent or the court’s leave,” 

Fed. R. Civ. P. 15(a)(2), and he did not include an actual motion to amend at that time. “[I]t is 

axiomatic that a complaint may not be amended by the briefs in opposition to a motion to dismiss.

. . . To hold otherwise would mean that a party could unilaterally amend a complaint at will.” 

Statewide Bonding, Inc. v. United States Dep’t of Homeland Sec., 980 F.3d 109, 117 n.5 (D.C. 

Cir. 2020) (internal quotation marks and citations omitted); see also Kingman Park Civic Ass’n v. 

Gray, 27 F. Supp. 3d 142, 160 n.7 (D.D.C. 2014) (citing cases) (“It is well settled law that a 

plaintiff cannot amend [the] complaint by the briefs in opposition to a motion to dismiss.”). 

Therefore, the Court did not treat that proposed amended complaint as a motion for leave to amend, 

and that proposed amended complaint is not the one before the Court at this time.

4 The proposed second amended complaint emphasizes that defendant seeks as relief for the

Peace Corps to reinstate him as a Volunteer. Request for Relief, Proposed Compl. ¶¶ 1–2; 

Proposed Compl. ¶ 1. This is not a new request, though, since the operative complaint also 

includes “reinstatement” in the relief sought. Request for Relief, Am. Compl. ¶ 1.
3

Amend [Dkt. # 24] (“Opp. to Mot. to Amend”); see also Pl.’s Reply Mem. on His Mot. to File 

Second Am. Compl. [Dkt. # 25].

Because even the proposed second amended complaint fails to state a claim upon which 

relief can be granted, the Court will DENY plaintiff’s motion to amend as futile, and GRANT

defendant’s motion to dismiss.

FACTUAL BACKGROUND

In December 2019, plaintiff was employed as a Peace Corps volunteer in the country of 

Georgia. Am. Compl. ¶¶ 4, 7; Proposed Compl. ¶¶ 4, 7.

5 On December 17, plaintiff alleges,

Melanie Emerson, his Country Director, presented him with a memorandum that contained 

“unspecified allegations against him” and a “no-contact order with a complaining female 

volunteer” (“Complaining Volunteer”). Am. Compl. ¶ 7; Proposed Compl. ¶ 7. The memorandum 

stated:

The purpose of this memorandum is to inform you that for your own 

protection and due to an open allegation we are looking into, effective 

immediately, I am issuing these instructions to you and imposing the 

following conditions . . . until further notice:

 You are required to stay away from and refrain from having any 

form of contact with [Complaining Volunteer], directly or through 

proxies, whether in person, by phone, in writing, via electronic 

means or via social media, or through a third party until further 

notice.

 During the . . . conference [on] December 17–20, 2019, you must 

not have any interactions or communications with [Complaining 

5 Although plaintiff’s start date is not included in the amended complaint, it appears that 

plaintiff began training for his position prior to December 2019. See Letter from Melanie Emerson, 

County Dir., Peace Corps, to Andy Yang, Volunteer, Peace Corps Georgia (Dec. 21, 2019), Ex. 

B. to Mot. to Dismiss [Dkt. # 14-3] (“Dec. 21, 2019 Letter”) (“In November, 2019, Peace Corps 

Georgia received allegations that you engaged in stalking and sexual harassment against a female 

Volunteer (then Trainee).”); Ex. 1 to Reply in Supp. of Mot. to Dismiss [Dkt. # 19-1] at 5 

(referencing “training days back in June”).
4

Volunteer], and you must at all times stay at least 10 feet away from 

her.

 You are prohibited from engaging in communications of any kind, 

including social media with other Peace Corps Georgia Volunteers, 

concerning this allegation and my instructions to you regarding no 

contact.

If you are found to have violated any aspect of these instructions . . . , you 

may be subject to disciplinary action up to and including administrative 

separation.

Letter from Melanie Emerson, County Dir., Peace Corps, to Andy Yang, Volunteer, Peace Corps 

Georgia (Dec. 17, 2019), Ex. A. to Mot. to Dismiss [Dkt. # 14-2] (“Dec. 17, 2019 Letter”) at 2.

6

 

Plaintiff’s signature appears at the bottom of this letter, which is dated December 17, 2019. Id.

Plaintiff claims that “[t]he issuance, content, and implementation of the memo by 

[d]efendant violated proper procedures” that are set out in the Peace Corps Manual’s interim policy 

statement (“IPS”). Am. Compl. ¶ 9; Proposed Compl. ¶ 9. IPS 1-12, entitled “Procedures for 

Handling Complaints of Volunteer/Trainee Sexual Misconduct,” provides:

The Country Director (CD) is responsible for the following:

. . . .

(c) Meeting with the Accused V/T [(“Volunteer/Trainee”)], 

preferably in person, following consul[t]ation with [the Office of the 

Inspector General (“OIG”)] and [the Office of General Counsel 

6 In ruling upon a motion to dismiss for failure to state a claim, a court may ordinarily 

consider only “the facts alleged in the complaint, documents attached as exhibits or incorporated 

by reference in the complaint, and matters about which the Court may take judicial notice.” 

Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002), citing EEOC v. St. Francis 

Xavier Parochial Sch., 117 F.3d 621, 624–25 (D.C. Cir. 1997); see Fed. R. Civ. P. 10(c). A 

document may be incorporated by reference even if it “is not attached by the plaintiff,” as long as 

it “is referred to in the complaint and integral to the plaintiff’s claim.” Banneker Ventures, LLC v. 

Graham, 798 F.3d 1119, 1133 (D.C. Cir. 2015) (internal brackets and quotation marks omitted).

Here, the Dec. 17, 2019 Letter is explicitly referenced in plaintiff’s amended complaint

and in the proposed second amended complaint; indeed, many of the allegations arise from the 

contents of that document. See Am. Compl. ¶¶ 7, 9, 16, 17; Proposed Compl. ¶¶ 7, 9, 18, 19.
5

(“OGC”)], [the Office of Safety and Security (“OSS”)], and the 

appropriate Regional Director. During that meeting or conversation,

the CD shall: 

(1) Provide the Accused V/T with a general explanation of 

IPS 1-12 Volunteer/Trainee Sexual Misconduct and these 

Procedures.

(2) Inform the Accused V/T that the Accused V/T is the 

subject of a Sexual Misconduct Complaint brought by 

another V/T.

(3) Advise the Accused V/T that the Accused V/T may, if 

needed, seek mental health services from the Counseling and 

Outreach Unit (COU) in the Office of Health Services 

(OHS); and

([4]) Inform the Accused V/T that the Accused V/T may 

resign at any time, in accordance with section 6.2 below.

Peace Corps, IPS 1-12 Procedures for Handling Complaints of Volunteer/Trainee Sexual 

Misconduct (effective July 3, 2019), available at https://files.peacecorps.gov/documents/IPS-1-12-

Interim-Procedures.pdf (section 3.1); see Proposed Compl. ¶ 10.

Plaintiff asserts in the proposed second amended complaint that Emerson did not follow 

the procedures set out in the Manual when she met with him, and therefore, he did not “fully 

understand his rights under the policies and how best to proceed.” Proposed Compl. ¶ 11. Plaintiff 

also claims that he signed the Dec. 17, 2019 Letter when he met with Emerson that day,

“immediately without reading it thoroughly,” because she had “ordered” him to do so. Am. 

Compl. ¶ 7; Proposed Compl. ¶ 7. Plaintiff alleges that Emerson refused to provide him with a 

copy of the letter or any details of the allegations that were being levied against him. Am. 

Compl. ¶¶ 7–8; Proposed Compl. ¶¶ 7–8. He complains that “[n]o one . . . ever asked [him] about 

the allegations against him or requested any information or documentation from him to refute the 

allegations.” Am. Compl. ¶ 19; Proposed Compl. ¶ 22.
6

Plaintiff alleges that on the evening of December 17, 2019 – following the meeting with 

Emerson, but, according to plaintiff, before he received a copy of the letter – he “discussed with 

other volunteers the potential nature of the allegations and the possible identity of the 

[Complaining Volunteer].” Am. Compl. ¶ 10; Proposed Compl. ¶ 12. Later that same evening, 

plaintiff alleges, the Complaining Volunteer approached him, but he refused to respond or engage 

with her and he texted Emerson to inform her of the “unauthorized contact.” Am. Compl. ¶¶ 11–

13; Proposed Comp. ¶¶ 13–15.

On the following morning, December 18, 2019, Emerson responded to plaintiff’s text 

message and told him that she “had placed the no contact order on [p]laintiff, not the [Complaining 

Volunteer].” Am. Compl. ¶ 14; Proposed Compl. ¶ 16. That afternoon, plaintiff alleges, he 

complained “via message” to the OIG of the Peace Corps about “the vagueness of the allegations 

against him, Emerson’s refusal to tell him what he was being accused of, and the Agency’s refusal 

to allow [p]laintiff to refute the allegations against him or provide his side of the story.” Am. 

Compl. ¶ 15; Proposed Compl. ¶ 17.

7

 The complaint alleges that plaintiff received a copy of the 

Dec. 17, 2019 letter he had signed the day before at approximately 1:37 p.m. Am. Compl. ¶ 16; 

Proposed Compl. ¶ 18; see Letter from Melanie Emerson, County Dir., Peace Corps Georgia, to 

Andy Yang, Volunteer, Peace Corps Georgia (Dec. 21, 2019), Ex. B. to Mot. to Dismiss 

[Dkt. # 14-3] (“Dec. 21, 2019 Letter”) at 2 (“I emailed you a scanned copy of the signed [Dec. 17, 

2019 Letter] on December 18, 2019.”).8

7 The following day, plaintiff also sent a detailed follow-up e-mail to the OIG, with the same 

complaints. Am. Compl. ¶ 15; Proposed Compl. ¶ 17.

8 Like the Dec. 17, 2019 Letter, the Dec. 21, 2019 Letter is not expressly incorporated in the 

complaint. But it is referred to in plaintiff’s amended complaint and proposed second amended 

complaint. See e.g., Am. Compl. ¶¶ 20–21; Proposed Compl. ¶¶ 24–25.
7

On December 20, 2019, plaintiff alleges, he met with Emerson for a second time and she

“berated him” for speaking to others about the Dec. 17, 2019 Letter, in violation of its terms. Am. 

Compl. ¶ 17; Proposed Compl. ¶ 19; see also Dec. 17, 2019 Letter at 2. Plaintiff claims he told

Emerson that he was unaware that his discussions with the other volunteers violated the terms of 

the Dec. 17, 2019 Letter, which he did not have at the time. Am. Compl. ¶ 18; Proposed 

Compl. ¶ 21.

On December 21, 2019, Emerson issued another letter. Am. Compl. ¶ 20; Proposed 

Compl. ¶ 24; Dec. 21, 2019 Letter. It reported:

In November[] 2019, Peace Corps Georgia received allegations that you

engaged in stalking and sexual harassment against a [Complaining 

Volunteer] (then Trainee). These matters were referred to the Office of 

Inspector General for investigation, and on November 27, 2019, OIG 

referred the matter back to Post for inquiry and administrative action. 

Pending that inquiry, I issued you no contact instructions in person on 

Tuesday, December 17, 2019, 2:30 pm . . . .

. . .

It has recently come to my attention that on the evening of 

December 17, 2019[,] you violated my instructions by communicating with 

other Volunteers about your speculations on the nature of the allegation 

referenced in my instructions , the identity of the [Complaining Volunteer], 

and my instructions to you regarding no contact.

. . .

As a result of your failure to comply with my instructions issued to you on 

December 17, 2019, I am considering you for administrative separation 

from service . . . . You have the right to respond in writing to this 

memorandum no later than 12:00 pm on Sunday, December 22. Following 

consideration of your response, I will make a final decision with the 

concurrence of the Regional Director for the EMA Region. You have the 

option to resign in lieu of administrative separation at any time up to 

24 hours after a final decision has been made.

Dec. 21, 2019 Letter at 1–2, quoting the Dec. 17, 2019 Letter at 1.
8

Plaintiff alleges that when Emerson issued this second letter, she “knew that [he] had 

complained to the [OIG’s] office about her handling of the discriminatory allegations against him 

and her violation of proper procedures in addressing the allegations.” Am. Compl. ¶ 22; Proposed 

Compl. ¶ 26; see also Proposed Compl. ¶ 20. For this reason, according to plaintiff, the letter was

an act of retaliation. Am. Compl. ¶ 27; Proposed Compl. ¶¶ 20, 31. 

In the proposed second amended complaint, plaintiff also claims that the Peace Corps 

“failed to follow the procedures set forth in [Manual Section (“MS”)] 271 Confidentiality 

Protection which prohibit reprisal against any Volunteer, like [p]laintiff, who brings to the 

attention of the OIG any allegations of mismanagement that relate to Peace Corps operations.” 

Proposed Compl. ¶ 23; see Peace Corps, MS 271 Confidentiality Provision (effective 

July 22, 2013), available at https://files.peacecorps.gov/documents/MS-271-Policy.pdf

(section 3.0(f): “Peace Corps staff are prohibited from retaliating against any Volunteer who raises 

any allegations or concerns [to the OIG].”; section 6.0(a): “No Peace Corps staff person may 

retaliate against a Volunteer because the Volunteer reported an allegation or concern under 

Section 3 above.”).

Two days later, on December 23, 2019, plaintiff informed Emerson in an email that he 

“wished to exercise his option to resign in lieu of termination.” Am. Compl. ¶ 23; Proposed 

Compl. ¶ 27. In his complaint, plaintiff characterizes this event as a “constructive discharge.” 

Am. Compl. ¶ 23; Proposed Compl. ¶ 27. Plaintiff’s resignation became effective on 

January 9, 2020. Am. Compl. ¶ 24; Proposed Compl. ¶ 28.

Plaintiff alleges that he filed a timely EEO petition, and subsequently “filed a formal 

complaint with [d]efendant, designated Agency Case No. PCV-20-06.” Am. Compl. ¶ 28; 
9

Proposed Compl. ¶ 32. On May 28, 2021, defendant issued a Final Agency Decision in Agency 

Case No. PC-20-06, from which plaintiff now appeals. Am. Compl. ¶ 29; Proposed Compl. ¶ 33.

LEGAL STANDARD

Federal Rule of Civil Procedure 15(a)(2) provides that a party may amend its pleading with 

the court’s leave, and that “[t]he court should freely give leave when justice so requires.” Fed. R.

Civ. P. 15(a)(2). The Supreme Court has emphasized this standard: “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 freely given.” Foman v. Davis, 371 U.S. 178, 182 

(1962) (internal quotation marks omitted). But a court “may deny a motion to amend a complaint 

as futile if the proposed claim would not survive a motion to dismiss.” Hettinga v. United States, 

677 F.3d 471, 480 (D.C. Cir. 2012).

“To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient factual 

matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 

556 U.S. 662, 678 (2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (internal 

quotation marks omitted). In Iqbal, the Supreme Court reiterated the two principles underlying its 

decision in Twombly: “[f]irst, the tenet that a court must accept as true all of the allegations 

contained in a complaint is inapplicable to legal conclusions,” and “[s]econd, only a complaint that 

states a plausible claim for relief survives a motion to dismiss.” Id. at 678–79, citing Twombly, 

550 U.S. at 555–56.

A claim is facially plausible when the pleaded factual content “allows the court to draw the 

reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 
10

at 678, citing Twombly, 550 U.S. at 556. “The plausibility standard is not akin to a ‘probability 

requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” 

Id., quoting Twombly, 550 U.S. at 556. A pleading must offer more than “labels and conclusions” 

or a “formulaic recitation of the elements of a cause of action,” id., quoting Twombly, 550 U.S. 

at 555, and “[t]hreadbare recitals of the elements of a cause of action, supported by mere 

conclusory statements, do not suffice.” Id., citing Twombly, 550 U.S. at 555. 

When considering a motion to dismiss under Rule 12(b)(6), the Court is bound to construe 

a complaint liberally in the plaintiff’s favor, and it should grant the plaintiff “the benefit of all 

inferences that can be derived from the facts alleged.” Kowal v. MCI Commc’ns Corp.,

16 F.3d 1271, 1276 (D.C. Cir. 1994). Nevertheless, the Court need not accept inferences drawn 

by the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the 

Court accept plaintiff’s legal conclusions. See id.; Browning v. Clinton, 292 F.3d 235, 242 (D.C. 

Cir. 2002). 

ANALYSIS

Defendant argues that neither plaintiff’s original claims alleging sex discrimination and 

retaliation, nor the proposed additional claims alleging breach of contract and an APA violation, 

state a claim that would survive a motion to dismiss. She maintains that amending the complaint 

to include the breach of contract and APA claims would be futile, and that the complaint should 

be dismissed. 

I. Sex Discrimination Claim

Plaintiff alleges that the defendant unlawfully discriminated against him on the basis of his 

sex, in violation of Title VII, by “receiving a compl[ai]nt from a female volunteer about him but 

not telling him who complained, what conduct the complaint was about, or conduct[ing] any 
11

investigation into the claims. Defendant just accepted these allegations . . . and then informed him 

that he was going to be administratively separated.” Am. Compl. ¶ 26; Proposed Compl. ¶ 30. 

Defendant contends that plaintiff “resigned rather than face the possibility of further investigation 

into his alleged misconduct and any consequences.” Mot. to Dismiss at 5–6; see id. at 5–9; see 

also Am. Compl. ¶ 23; Proposed Compl. ¶ 27. Therefore, defendant argues, plaintiff has failed to 

allege he was subjected to any action that would constitute the adverse employment action that is 

a necessary element of a discrimination claim, not even a constructive discharge. Id. at 5–14. 

To prevail on a claim for discrimination under Title VII, at the motion to dismiss stage, a 

plaintiff must establish “(1) [h]e is a member of a protected class;9 (2) [h]e suffered an adverse 

employment action; and (3) the unfavorable action gives rise to an inference of discrimination.” 

Chappell-Johnson v. Powell, 440 F.3d 484, 488 (D.C. Cir. 2006), quoting Brown v. Brody, 

199 F.3d 446, 452 (D.C. Cir. 1999), overruled on other grounds by Chambers v. Dist. of Columbia, 

35 F.4th 870 (D.C. Cir. 2022).

An adverse employment action requires “a significant change in employment status, such 

as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a 

decision causing a significant change in benefits.” Burlington Indus., Inc. v. Ellerth,

524 U.S. 742, 761 (1998). In “a situation in which an employer discriminates against an employee 

to the point such that his working conditions become so intolerable that a reasonable person in the 

employee’s position would have felt compelled to resign . . . Title VII treats that resignation as 

tantamount to an actual discharge.” Green v. Brennan, 578 U.S. 547, 555 (2016), quoting 

9 Plaintiff has alleged he is a male who was unlawfully discriminated against on the basis of 

his sex, and that puts him within a protected class. Am. Compl. ¶ 26; Proposed Compl. ¶ 30.
12

Pennsylvania State Police v. Suders, 542 U.S. 129, 141 (2004) (internal quotation marks and 

citation omitted). This is called a “constructive discharge.” Id.

The test for constructive discharge is objective: “[d]id working conditions become so 

intolerable that a reasonable person in the employee’s position would have felt compelled to 

resign?” Suders, 542 U.S. at 141. “[T]o establish ‘constructive discharge,’ the plaintiff . . . must 

show that the abusive working environment became so intolerable that [their] resignation qualified 

as a fitting response.” Id. at 134. This “requires a finding of discrimination and the existence of 

certain ‘aggravating factors.’” Veitch v. England, 471 F.3d 124, 130 (D.C. Cir. 2006), quoting 

Mungin v. Katten Munchin & Zavis, 116 F.3d 1549, 1558 (D.C. Cir. 1997) (emphasis in original). 

“‘Aggravating factors’ are those aspects of a discriminatory work environment that, by making the 

workplace so disagreeable, prevent the reasonable employee from seeking remediation on the job.” 

Id. But, “where an employee is faced merely with the unpleasant alternatives of resigning or being 

subject to removal for cause, such limited choices do not make the resulting resignation an 

involuntary act.” Keyes v. District of Columbia, 372 F.3d 434, 439 (D.C. Cir. 2004) (internal 

citation and quotation marks omitted). 

Even read in the light most favorable to the plaintiff, nothing in the complaint gives rise to 

a plausible inference that plaintiff was forced to resign due to an intolerable working environment.

Plaintiff announced his resignation just two days after he was told that his separation was under 

consideration, and he does not provide any information about how he was treated during that brief 

period. The complaint is devoid of any facts that would fall within the category of “aggravating 

factors” that would prevent a reasonable employee from seeking remediation on the job. Indeed,

plaintiff himself characterized his resignation as an “option” at the time, and one that he wished to 

exercise “in lieu of termination.” Am Compl. ¶ 23; Proposed Compl. ¶ 27; see Dec. 21, 2019 
13

Letter at 2. And although plaintiff alleges now that defendant “informed him that he was going to 

be administratively separated” and “determined [he] would be administratively separated,” Am 

Compl. ¶¶ 26–27 (emphasis added); Proposed Compl. ¶¶ 30–31 (same), this summary is 

inconsistent with the Dec. 21, 2019 Letter that is incorporated in the complaint. Emerson informed 

the plaintiff that the Peace Corps was “considering” him for administrative separation and offered 

him an opportunity to respond in writing before the final decision would be made. Dec. 21, 2019 

Letter at 2. Moreover, plaintiff was told that he could exercise the option to resign “up to 24 hours 

after a final decision has been made.” Id. (emphasis added). “Although choosing between [his]

options may have been difficult, it was a voluntary decision nonetheless.” Keyes, 372 F.3d at 440.

Therefore, the complaint does not plausibly allege that plaintiff’s resignation was a 

constructive discharge, and because there is no other adverse employment action alleged in the 

complaint, the motion to dismiss the discrimination claim will be granted.

II. Retaliation Claim

Title VII’s anti-retaliation provision makes it unlawful for “an employer [to] 

‘discriminat[e] against’ an employee . . . because that individual ‘opposed any practice’ made 

unlawful by Title VII or ‘made a charge, testified, assisted, or participated in’ a Title VII 

proceeding or investigation.” Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 56 

(2006), quoting 42 U.S.C. § 2000e–3(a). The first clause, regarding employees who oppose a 

practice made unlawful by Title VII, is known as the opposition clause, while the second clause, 

regarding employees who participate in an EEO investigation, proceeding, or hearing, is known as 

the participation clause. See Crawford v. Metro. Gov’t of Nashville & Davidson Cty., Tenn., 

555 U.S. 271, 274 (2009).
14

In order to establish a prima facie case of retaliation, a plaintiff “must show (1) [h]e

engaged in a statutorily protected activity; (2) [h]e suffered an adverse employment action; and 

(3) there is a causal connection between the two.” Taylor v. Small, 350 F.3d 1286, 1292 (D.C. 

Cir. 2003). The D.C. Circuit has explained that when a plaintiff is alleging retaliation in response 

to “protected activity,” “[n]ot every complaint garners its author protection under Title VII. While 

no ‘magic words’ are required, the complaint must in some way allege unlawful discrimination, 

not just frustrated ambition.” Broderick v. Donaldson, 437 F.3d 1226, 1232 (D.C. Cir. 2006) 

(internal citations omitted) (opining that a memorandum the plaintiff sent to her supervisors and 

the EEO office may not have met this standard because it “did not allege . . . that she was currently 

being discriminated against or that she was being retaliated against for her previous lawsuit”). 

“[A]n employee seeking the protection of the opposition clause must demonstrate a good faith, 

reasonable belief that the challenged practice violates Title VII.” George v. Leavitt, 

407 F.3d 405, 417 (D.C. Cir. 2005) (internal citation and brackets omitted).

Plaintiff does not allege that he made a charge, testified, assisted, or participated in a 

Title VII proceeding or investigation prior to the alleged act of retaliation. See 42 U.S.C. § 2000e–

3(a).10 But he does submit that the defendant retaliated against him on the basis of his sex for 

10 Plaintiff does claim that he filed an “EEO petition and thereafter a formal complaint with

[d]efendant,” Am. Compl. ¶ 28; Proposed Compl. ¶ 32, but he does not link the alleged retaliation 

to the EEO petition, instead alleging that the retaliation came “after he wrote a complaint to the 

[OIG] about how the situation was being handled,” Am. Compl. ¶ 27; Proposed Compl. ¶ 31. 

Because he filed his EEOC complaint after the allegedly retaliatory events occurred, it cannot 

serve as the basis for his retaliation claims. Cones v. Shalala, 199 F.3d 512, 521 (D.C. Cir. 2000), 

quoting Mitchell v. Baldrige, 759 F.2d 80, 86 (D.C. Cir. 1985) (finding that to establish a causal 

connection between a protected activity and an adverse employment action, plaintiff may allege 

that defendant knew about the protected activity “and that the adverse personnel action took place 

shortly after that activity”) (emphasis added). Here, every alleged retaliatory action by defendant 

took place on or before December 21, 2019, when defendant issued him the memo informing him 

he could resign in lieu of administrative separation.
15

expressing opposition to a practice made unlawful by Title VII: “[defendant] only determined [he] 

would be administratively separated . . . after he wrote a complaint to the Inspector General about 

how the situation was being handled and explained that he felt that his treatment by [defendant] 

was unfair and discriminatory.” Am. Compl. ¶ 27; Proposed Compl. ¶ 31; see Am. Compl. ¶ 32; 

Proposed Compl. ¶ 36. In this email to the OIG, however, plaintiff does not raise concerns or 

assert there has been sex discrimination. His complaints instead were about “the vagueness of the 

allegations against him, Emerson’s refusal to tell him what he was being accused of, and the 

Agency’s refusal to allow [him] to refute the allegations against him or provide his side of the 

story.” Am. Compl. ¶ 15; Proposed Compl. ¶ 17.

11 There are no allegations that support an 

inference that he ever raised concerns about sex discrimination prior to his resignation. Therefore, 

there are no facts to support an inference that he engaged in protected activity before he resigned. 

See Broderick, 437 F.3d at 1232.

Moreover, the Court has already found that the allegations concerning plaintiff’s 

resignation do not add up to a constructive discharge, and plaintiff does not allege that he suffered 

any other adverse employment action. Given the absence of any allegation that plaintiff engaged 

in protected activity under Title VII, and the lack of an actionable adverse event, the Court will 

also dismiss the retaliation claim.

11 This email exchange is attached to defendant’s reply as Exhibit 1. See Ex. 1 to Reply in 

Supp. of Mot. to Dismiss.
16

III. Proposed Claims: Breach of Contract and APA Violation12

The proposed second amended complaint adds two claims: a claim for breach of contract

based on defendant “refusing to follow the policies and procedures and forcing [p]laintiff to resign 

his position,” Proposed Compl. ¶ 40; Proposed Compl. ¶¶ 38–41; and a claim under the APA 

alleging that the Peace Corps “unlawfully refused to comply with established procedural standards 

in discriminating against and terminating [p]laintiff in violation of the . . . official regulations and 

procedures set forth in the Peace Corps Manuals.” Proposed Compl. ¶ 43 (emphasis in original).

A. Proposed Breach of Contract Claim

“To prevail on a claim of breach of contract, a party must establish (1) a valid contract 

between the parties; (2) an obligation or duty arising out of the contract; (3) a breach of that duty; 

and (4) damages caused by breach.” Brown v. Sessoms, 774 F.3d 1016, 1024 (D.C. Cir. 2014), 

quoting Tsintolas Realty Co. v. Mendez, 984 A.2d 181, 187 (D.C. 2009). Plaintiff alleges that 

“[d]efendant’s issuance of binding policies and regulations in its Volunteer Handbooks and [his] 

adherence to those Handbooks created a binding contract between the parties under the common 

12 Plaintiff’s counsel admits in his reply in support of the motion to amend that he 

“overlook[ed] the Local Rule 7(m) requirement of conferring with opposing counsel prior to filing 

this motion” because he was sick at the time and wanted to file his motion before the “statute of 

limitations deadline on [p]laintiff’s breach of contract claim.” Pl.’s Reply Mem. on His Mot. to 

File Second Am. Compl. at 1.

The Rule requires that “[b]efore filing any nondispositive motion in a civil action, counsel 

shall discuss the anticipated motion with opposing counsel in a good-faith effort to determine 

whether there is any opposition to the relief sought and, if there is, to narrow the areas of 

disagreement.” LCvR 7(m). This “promote[s] the resolution of as many litigation disputes as 

possible without court intervention, or at least . . . force[s] the parties to narrow the issues that 

must be brought to the court.” Ellipso, Inc. v. Mann, 460 F. Supp. 2d 99, 102 (D.D.C. 2006). A 

district court may deny a motion to amend for failure to comply with Local Rule 7(m). See, e.g., 

Cohen v. Bd. of Trs. of the Univ. of the D.C., 819 F.3d 476, 478 (D.C. Cir. 2016) (recounting case 

history as having been dismissed in district court for, in part, failure to comply with Local 

Rule 7(m)). However, the Court will decline to do so in its discretion in this case.
17

law,” and that defendant breached the contract, resulting in injury and damages to plaintiff because 

it “led to [him] not fully understand[ing] his rights under the policies and how best to proceed.” 

Proposed Compl. ¶¶ 11, 39–41.

The parties dispute whether a valid contract existed between the parties. Defendant argues 

that the Peace Corps Volunteer Handbooks did not create binding contracts because their existence 

does not demonstrate “mutual intent to enter into a contract.” Opp. to Mot. to Amend at 6 (internal 

citation omitted). But the Court does not need to reach that question. Plaintiff has failed to allege 

facts to show that any damage he suffered was caused by the supposed breach; rather, he

specifically alleges that he exercised his option to resign. Proposed Compl. ¶¶ 25, 27. Because 

causation is a necessary element of a breach of contract claim, plaintiff’s motion to amend his 

complaint with this claim is futile. See William Loveland Coll. v. Distance Educ. Accrediting 

Comm’n, 788 F. App’x 5, 6 (D.C. Cir. 2019), citing Tsintolas, 984 A.2d at 187; Exec. Sandwich 

Shoppe, Inc. v. Carr Realty Corp., 749 A.2d 724, 736–37 (D.C. 2000) (“Under a breach of contract

[theory,] a defendant is liable for such damages as are the natural consequence and proximate 

result of his conduct.”), citing Murphy v. O’Donnell, 63 A.2d 340, 342 (D.C. 1948); Dutcher v. 

United States, 736 F. Supp. 1142, 1146 (D.D.C. 1990), aff’d, 923 F.2d 200 (D.C. Cir. 1990)

(“Proximate cause is that cause which, in actual continuous sequence, unbroken by an efficient 

intervening cause, produces the injury and without which the injury would not have occurred.”).

B. Proposed APA Claim

Generally, when a plaintiff challenges agency action, the APA provides a cause of action 

for the plaintiff and a waiver of sovereign immunity by the government. See Am. Rd. & Transp. 

Builders Ass’n. v. EPA, 865 F. Supp. 2d 72, 80–81 (D.D.C. 2012), aff’d, No. 12–5244, 

2013 WL 599474 (D.C. Cir. Jan. 28, 2013) (per curiam). When that is the case, a district court has

subject matter jurisdiction under 28 U.S.C. § 1331, the general federal question statute. Id.
18

However, the APA makes it clear that if another statute provides an “adequate remedy in a court,” 

the APA cannot supply the cause of action, which means that it cannot serve as the waiver of 

sovereign immunity either. See 5 U.S.C. § 704 (“Agency action made reviewable by statute and 

final agency action for which there is no other adequate remedy in a court are subject to judicial 

review.”) (emphasis added).

Plaintiff now alleges that the Peace Corps refused to comply with its procedures “in 

discriminating against and terminating” him in violation of the Peace Corps Manual, as required 

by the APA. Proposed Compl. ¶ 43. Although plaintiff has tried to reframe the legal question, he 

has already sought a remedy for the discriminatory and retaliatory conduct he alleges he faced at 

the hands of his employer under Title VII. See Am. Compl. ¶¶ 31–33. Since Title VII provides 

the plaintiff with an adequate remedy in court, plaintiff has not secured a waiver of the 

government’s sovereign immunity, and the Court would lack jurisdiction over the proposed claim. 

See Grant v. Dep’t of Treasury, 194 F. Supp. 3d 25, 30 (D.D.C. 2016) (“A plaintiff cannot 

challenge an administrative decision or action under the APA when there is an ‘adequate remedy’

against the employing agency, such as a cause of action under Title VII . . . .”). Therefore, 

plaintiff’s motion to amend his complaint with an APA claim is also futile, and the Court will deny

the motion in its entirety.
19

CONCLUSION

For the foregoing reasons, defendant’s motion to dismiss will be GRANTED, and 

plaintiff’s motion to amend the complaint will be DENIED. 

A separate order will issue.

AMY BERMAN JACKSON

United States District Judge

DATE: February 9, 2023