UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

KIRK E. WEBSTER, : 

 : 

Plaintiff, : Civil Action No.: 23-3050 (RC)

 : 

 v. : Re Document Nos.: 8, 11 

 : 

DEB HAALAND, : 

Secretary of the of Interior, : 

 : 

 Defendant. : 

MEMORANDUM OPINION

GRANTING DEFENDANT’S MOTION TO DISMISS; DENYING PLAINTIFF’S MOTION TO AMEND

I. INTRODUCTION

Plaintiff Kirk Webster (“Plaintiff”) filed this action pro se against Deb Haaland, in her 

official capacity as Secretary of the Department of the Interior (“Defendant”), claiming disparate 

treatment, retaliation, and race discrimination in violation of Title VII of the Civil Rights Act of 

1964 (“Title VII”), 42 U.S.C. § 2000e-2. Defendant moves to dismiss Plaintiff’s Complaint 

under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Plaintiff also moves 

for leave to amend his Complaint, adding a count of age discrimination in violation of the Age 

Discrimination in Employment Act (“ADEA”) of 1967, 29 U.S.C. § 621(a)(b). For the reasons 

set forth below, the Court grants Defendant’s motion to dismiss and denies Plaintiff’s motion for 

leave to amend his complaint. The Court grants Plaintiff 30 days to file an amended complaint 

that cures the deficiencies identified by the Court in the original Complaint and the Proposed 

Amended Complaint. 
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II. FACTUAL BACKGROUND

According to the allegations in the Complaint, Plaintiff Kirk Webster is a Black 

American male, Compl. ¶ 6, ECF No. 1, who applied for a Geographic Information System 

Specialist (“GIS Specialist”) position at the Department of Interior (“the Agency”) in April 2022, 

id. ¶ 10; see also Ex. 1 to Compl. at 5, ECF No. 1-1.

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 The Agency did not select him, informing 

him that his application was not “referred to the hiring manager for [the] position.” Compl. ¶ 10; 

Ex. 1 to Compl. at 12. Plaintiff then emailed an Equal Employment Opportunity (“EEO”) 

official at the Agency, seeking “to file an informal complaint of race based (Black) 

discrimination, Reprisal – for disclosure discrimination, and age (62) when I was not 

interviewed, referred to the hiring official, and ultimately non-selected.” Ex. 1 to Compl. at 12. 

Plaintiff received an out-of-office reply encouraging him to contact an alternate official. Id. at 

14. That alternate official did not respond to his email, id. at 15–20, which the Agency contends 

resulted from a typo in the official’s email address, Ex. 2 to Compl. at 37–39. An Equal 

Employment Opportunity Commission (“EEOC”) administrative law judge later dismissed his 

complaint for failure to exhaust before the agency, Ex. 5 to Compl. at 103–04, and his 

subsequent administrative appeal was closed as “premature” without a “final decision” from 

which to appeal, Ex. 7 to Compl. at 197.

Plaintiff filed a Complaint on October 13, 2023, bringing Title VII claims for disparate 

treatment based on race (Count I), Compl. ¶ 27, retaliation for his prior EEO activity (Count II), 

id. ¶ 35, and racial discrimination (Count III), id. ¶ 39. Defendant moved to dismiss. See Def.’s 

Mot. Dismiss (Mot.), ECF No. 8-1. Plaintiff moved for leave to amend his Complaint, adding a 

1 When citing the exhibits accompanying Plaintiff’s Complaint, the Court refers to the 

page numbers generated by ECF. These exhibits can all be found at ECF No. 1-1.
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charge of age discrimination in violation of the ADEA. See Pl.’s Mot. Amend, ECF No. 11; 

Pl.’s Proposed Am. Compl. ¶ 42, ECF No. 11-1. Defendant opposes the motion to amend.

Def.’s Opp’n Mot. Amend, ECF No. 14.

III. LEGAL STANDARD

A. Rule 12(b)(6) Motion to Dismiss

A motion to dismiss under Rule 12(b)(6) “tests the legal sufficiency of a complaint” by 

asking whether the plaintiff has properly stated a claim on which relief can be granted. 

Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). In deciding a motion to dismiss under 

Rule 12(b)(6), a court must consider the whole complaint, accepting all factual allegations as true 

and drawing all reasonable inferences in favor of the plaintiff. Bell Atl. Corp. v. Twombly, 550 

U.S. 544, 555 (2007); see also Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 

1994). However, a court may disregard “inferences drawn by a plaintiff if such inferences are 

unsupported by the facts set out in the complaint.” Nurriddin v. Bolden, 818 F.3d 751, 756 (D.C. 

Cir. 2016) (quoting Kowal, 16 F.3d at 1276). 

To survive a motion to dismiss, a plaintiff must provide “a short and plain statement of 

the claim,” Fed. R. Civ. P. 12(b)(6), that “contain[s] 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) 

(citing Twombly, 550 U.S at 570). A facially plausible claim is one that “allows the court to 

draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. 

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 

statements,” are therefore insufficient to withstand a motion to dismiss. Id. In determining a 

12(b)(6) motion, the Court may consider “only the facts alleged in the complaint [and] any 

documents either attached to or incorporated in the complaint and matters of which [the Court] 
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may take judicial notice.” Equal Employment Opportunity Comm’n v. St. Francis Xavier 

Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997). 

In the context of Title VII employment discrimination suits, the plaintiff need not 

“anticipate legitimate, non-discriminatory reasons that may be proffered by the employer for the 

adverse employment action nor allege pretext to survive a motion to dismiss.” Townsend v. 

United States, 236 F. Supp. 3d 280, 298 (D.D.C. 2017). Instead, a Title VII plaintiff need only 

allege “facts that, taken as true, render his [discrimination] claim plausible.” Harris v. D.C. 

Water & Sewer Auth., 791 F.3d 65, 70 (D.C. Cir. 2015). Yet while a plaintiff may survive a 

Rule 12(b)(6) motion even if “recovery is very remote and unlikely,” the facts alleged in the 

complaint “must be enough to raise a right to relief above the speculative level.” Twombly, 550 

U.S. at 555–56 (quotations removed). When evaluating a motion to dismiss an employment 

discrimination claim, the “guiding lodestar is whether, assuming the truth of the factual 

allegations, the inferences of discrimination drawn by the plaintiff are reasonable and plausibly 

supported.” Lawson v. Sessions, 271 F. Supp. 3d 119, 134 (D.D.C. 2017) (cleaned up). 

Finally, because Plaintiff in this case is proceeding pro se, the Court will construe his 

complaint liberally and hold it “to less stringent standards than formal pleadings drafted by 

lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 

106 (1976)). Thus, the Court may “examine other pleadings to understand the nature and basis 

of [the plaintiff’s] pro se claims” as alleged in his complaint. Gray v. Poole, 275 F.3d 1113, 

1115 (D.C. Cir. 2002)). Nevertheless, even a pro se plaintiff is not excused from adhering to the 

applicable procedural rules and must “plead factual matter that permits the court to infer ‘more 

than the mere possibility of misconduct.’” Atherton v. D.C. Off. Of the Mayor, 567 F.3d 672, 

681–82 (D.C. Cir. 2009) (quoting Iqbal, 556 U.S. at 679). Therefore, despite the liberality 
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afforded pro se complaints, the Court “need not accept inferences unsupported by the facts 

alleged in the complaint or ‘legal conclusions cast in the form of factual allegations.’” 

Kaemmerling v. Lappin, 553 F.3d 669, 677 (D.C. Cir. 2008) (quoting Henthorn v. Dep’t of Navy, 

29 F.3d 682, 684 (D.D.C. 1994)). 

B. Motion to Amend Complaint

Under the Federal Rules of Civil Procedure, a party may amend its pleading once as a 

matter of course within 21 says after serving it, or within a specified amount of time if the 

pleading is one to which a responsive pleading is required. Fed. R. Civ. P. 15(a)(1). Otherwise,

a party may only amend its pleading “with the opposing party’s written consent or the court’s 

leave.” Fed. R. Civ. P. 15(a)(2). Rule 15 also instructs courts to “freely give leave [to amend]

when justice so requires.” Id.; see also Belizan v. Hershon, 434 F.3d 579, 582 (D.C. Cir. 2006) 

(explaining that Rule 15 “is to be construed liberally”). This standard, however, “does not mean 

that leave must be granted in call cases.” Graves v. United States, 961 F. Supp. 314, 317 

(D.D.C. 1997). Federal courts may deny leave to amend for reasons such as “undue delay, bad 

faith or dilatory motive on the part of the movant, . . . [or] futility of amendment.” Foman v. 

Davis, 371 U.S. 178, 182 (1962). The decision to grant or deny leave to amend “is committed to 

a district court’s discretion.” Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (per 

curiam). 

IV. ANALYSIS

The Court’s analysis proceeds in three parts. First, the Court addresses Defendant’s 

argument that Title VII provides no cause of action for challenging the EEO administrative 

process. The Court then considers whether Plaintiff has alleged sufficient facts to support

disparate treatment, retaliation, and race discrimination claims. Finally, the Court evaluates 
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whether Plaintiff should be granted leave to amend. Because all of Plaintiff’s claims are 

predicated on the same vague and conclusory allegations regarding the EEO complaint process, 

with little connection between his non-selection and his race or age, the Court grants the motion 

to dismiss and denies Plaintiff’s motion to amend. However, the Court will afford Plaintiff the 

opportunity to correct these shortcomings by filing an amended complaint.

A. Motion to Dismiss

Plaintiff alleges that the Agency engaged in disparate treatment, retaliation, and race 

discrimination by failing to respond to his email and act on his EEO complaint. Compl. ¶¶ 27, 

35, 39. Defendant moves to dismiss for failure to state a claim under Rule 12(b)(6), contending 

that Plaintiff’s allegations target the mishandling of his EEO complaint, which is not cognizable 

under Title VII. Mot. at 6–7. Defendant adds that Plaintiff pleads insufficient facts to establish a 

plausible Title VII discrimination or retaliation claim. Id. at 3–6. The Court agrees. 

1. EEO Complaint Processing 

Here, Plaintiff’s Title VII claims against Defendant rest primarily on the theory that the

relevant Department of the Interior EEO director failed to timely respond to his EEO complaint 

about the non-selection of his application for a GIS specialist position. See Compl. ¶¶ 27, 35, 39. 

The factual allegations similarly revolve around multiple EEO officials’ untimely and dismissive 

processing of Plaintiff’s EEO complaint. Compl. ¶¶ 11–25. 

The Court agrees with Defendant that precedent both inside and outside this circuit has

long established that Title VII provides no cause of action to challenge “negligence or other 

malfeasance” in handling EEO discrimination complaints. Smith v. Casellas, 119 F.3d 33, 34 

(D.C. Cir. 1997) (per curiam); see also Wright v. Dominguez, No. 04–5055, 2004 WL 1636961, 

at *1 (D.C. Cir. July 21, 2004) (collecting cases); Douglas-Slade v. LaHood, 793 F. Supp. 2d 82, 
7

96 (D.D.C. 2011) (collecting cases); Lawson v. Sessions, 271 F. Supp. 3d 119, 140 (D.D.C. 

2017) (“[T]he mishandling of an EEO complaint, on its own, does not give rise to an independent 

cause of action under Title VII or the ADEA.”); McCottrell v. Equal Emp. Opportunity Comm’n, 

726 F.2d 350, 351 (7th Cir. 1984) (“It is settled law, in this and other circuits, that Title VII does 

not provide either an express or implied cause of action against the EEOC to challenge its 

investigation and processing of a charge.”). This is because Congress provides a private right of 

action for victims of employment discrimination to sue their employers in federal court as a 

remedy for “any improper handling of a discrimination charge.” Smith, 119 F.3d at 34. This 

remedy is available even when an agency EEO office or the EEOC rejects plaintiffs’ claims. See 

Bagenstose v. District of Columbia, 503 F. Supp. 2d 247, 255 (D.D.C. 2007). Consequently,

“[i]mplying a cause of action against the EEOC contradicts [Title VII’s] policy of individual 

enforcement of equal employment opportunity laws and could dissipate the limited resources of 

the [EEOC] in fruitless litigation with charging parties.” Ward v. Equal Employment 

Opportunity Comm’n, 719 F.2d 311, 313 (9th Cir. 1983). To the extent Plaintiff’s Title VII 

claims target the EEO process, those claims fail.

2. Non-Selection

In his opposition to Defendant’s motion to dismiss, Plaintiff asserts that “[t]he cause of 

action is that Plaintiff was non-selected.” Pl.’s Opp’n Def.’s Mot. Dismiss at 2. Defendant 

contends that Plaintiff has failed to assert facts stating a Title VII claim. Mot. at 3–6. Although 

Title VII does not provide a cause of action for faults in EEO complaint processing, the Court 

construes Plaintiff’s complaint liberally and considers whether Plaintiff sufficiently alleges Title 

VII claims based on his non-selection for the GIS Specialist role. See Erickson, 551 U.S. at 94;

Gray, 275 F.3d at 1115 (stating that the Court may “examine other pleadings to understand the 
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nature . . . of [the] pro se claims”); Compl. ¶ 10 (citing Plaintiff’s “non-referral to the hiring 

manager”). Here, Plaintiff brings Title VII claims under three theories, arguing he suffered (I) 

disparate treatment based on race; (II) race discrimination; and (III) retaliation for his EEO 

activity. Compl. ¶¶ 27, 35, 39. The Court considers these three counts and determines that they 

do not state a plausible claim for relief.

Title VII declares that “[a]ll personnel actions affecting employees . . . in executive 

agencies . . . shall be made free from any discrimination based on race.” 42 U.S.C. § 2000e–

16(a). Title VII also makes it “an unlawful employment practice . . . to fail or refuse to hire . . .

any individual, or otherwise to discriminate against any individual with respect to his 

compensation, terms, conditions, or privileges of employment, because of [his] race.” 42 U.S.C. 

§ 2000e-2(a)(1). To prove employment discrimination, a plaintiff must ultimately establish that 

he “suffered an adverse employment action . . . because of [his] race, color, religion, sex, or 

national origin.” Brady v. Off. of Sergeant at Arms, 520 F.3d 490, 493 (D.C. Cir. 2008). An 

employee may establish disparate treatment under Title VII by demonstrating that the employer 

“has ‘treated [a] particular person less favorably than others because of’ a protected trait.” Ricci 

v. DeStefano, 557 U.S. 557, 577 (2009) (quoting Watson v. Fort Worth Bank & Trust, 487 U.S. 

977, 985–86 (1988)).2

 

2 Where a Title VII plaintiff brings a discrimination claim in the absence of direct 

evidence, courts apply the three-step evidentiary framework of McDonnell Douglas Corp. v. 

Green, 411 U.S. 792 (1973). See Etokie v. Duncan, 202 F. Supp. 3d 139, 148-49 (D.D.C. 2016); 

Calhoun v. Johnson, 632 F.3d 1259, 1261 (D.C. Cir. 2011). To establish a prima facie case of 

discrimination, the plaintiff must show that: “(1) she is a member of a protected class; (2) she 

suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference 

of discrimination.” Czekalski v. Peters, 475 F.3d 360, 364 (D.C. Cir. 2007) (citation and internal 

quotation marks omitted). However, the prima facie case is “an evidentiary standard, not a 

pleading requirement.” Swierkiewicz v. Sorema N. A., 534 U.S. 506, 510 (2002). 
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At the motion to dismiss stage, the plaintiff must “plead sufficient facts to show a 

plausible entitlement to relief.” Rodriguez v. Donovan, 922 F.Supp.2d 11, 17 (D.D.C. 2013); see 

also Swierkiewicz, 534 U.S. at 511 (stating that “the ordinary rules for assessing the sufficiency 

of a complaint apply” to Title VII complaints); Harris, 791 F.3d at 70 (examining whether 

plaintiff’s claims were plausible); Jackson v. Acedo, No. 08-cv-1941, 2009 WL 2619446, at *4 

(D.D.C. Aug. 26, 2009) (concluding that plausibility pleading applies to employment 

discrimination claims). The “plaintiff must ‘allege some facts that demonstrate [his] race was 

the reason for defendant’s actions’ and cannot merely ‘invoke his race in the course of a claim’s 

narrative.’” Doe #1 v. Am. Fed’n of Gov’t Emps., 554 F. Supp. 3d 75, 102 (D.D.C. 2021) 

(quoting Bray v. RHT, Inc., 748 F. Supp. 3, 5 (D.D.C. 1990)).

The Court considers Plaintiff’s race discrimination claims together because his disparate 

treatment theory is really a subset of racial discrimination claims. See Segar v. Smith, 738 F.2d 

1249, 1265 (D.C. Cir. 1984) (describing disparate treatment as one of two main theories under 

Title VII, alongside disparate impact).3

 Even if the Court construes these claims as based on 

Plaintiff’s non-selection for the GIS position, as he states in his opposition to the motion to 

dismiss, they remain factually deficient. The only relevant allegation included in Plaintiff’s 

Complaint is an assertion that “in [his] non-referral to the hiring manager, [he] was subjected to 

discrimination on the basis of race.” Compl. ¶ 10. His EEO complaint contains a similar 

statement without further factual basis. See Ex. A to Compl. at 64. This is a conclusory 

allegation that presents “legal conclusions couched as factual allegations,” with nothing more to 

3 Plaintiff’s disparate treatment claim is nominally based on the EEO’s “fail[ure] to 

respond to [Plaintiff’s] email,” which “harm[ed] timely processing of [his] EEO complaint.” 

Compl. ¶ 27. His racial discrimination claim is based on the assertion that the EEO director 

“tried to mask discrimination by deliberately failing to timely respond to Plaintiff’s email.” 

Compl. ¶ 39. As discussed above, Title VII provides no cause of action for these grievances. 
10

suggest that the alleged non-selection was because of his race. Nurriddin v. Bolden, 818 F.3d 

751, 756 (D.C. Cir. 2016) (quoting Iqbal, 556 U.S. at 678)); see also Williams v. Dodaro, 576 F. 

Supp. 2d 72, 87 (D.D.C. 2008) (“Mere allegations and conclusory assertions made on the basis 

of ‘belief’ do not suffice to establish discrimination for purposes of the McDonnell Douglas

test.”); Bishop v. United States Dep’t of Agric., No. 1:22-cv-0635, 2022 WL 17415049, at *2 

(D.D.C. Dec. 5, 2022), aff’d, No. 23-5008, 2023 WL 6323760 (D.C. Cir. Sept. 28, 2023) 

(dismissing complaint where plaintiff “only manage[d] to allege, in conclusory fashion, that he 

[was] a member of a protected class who suffered an adverse employment action because of his 

race and sex”). Plaintiff thus alleges insufficient facts in his Complaint to support an inference 

of discrimination.

In his sur-reply, Plaintiff adds that the hiring official knew his race because he listed it on 

his resume. See Ex. 2 to Pl.’s Sur-Reply at 4, ECF No. 15-2 (listing Plaintiff’s “Race/Ethnicity” 

as “Black American”). Yet, again, “bare allegations about [Plaintiff’s] protected status are 

insufficient to show that the treatment [he] received from [the employer] was because of [his]

age, national origin or race.” Peters v. District of Columbia, 873 F. Supp. 2d 158, 194 (D.D.C. 

2012). Plaintiff’s allegation that he included his race on his resume still fails to state a claim 

because—other than implying the possibility that the Agency saw his race before making the 

hiring decision—it provides no further factual basis for the inference that Plaintiff was not 

selected because of his race.

To survive a motion to dismiss, claims of discrimination usually require at least a 

minimal factual basis from which the Court can draw “an inference of discrimination.” 

Czekalski, 475 F.3d at 364. The D.C. Circuit has held that to state a claim, a Title VII plaintiff 

must simply “dispel any ‘obvious alternative explanation[s]’” for the adverse employment 
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action. Ho v. Garland, 106 F.4th 47, 54 (D.C. Cir. 2024) (quoting Wilson v. Arkansas Dep’t of 

Hum. Servs., 850 F.3d 368, 373 (8th Cir. 2017)). These explanations include “an absolute or 

relative lack of qualifications,” which represents one of the “most common legitimate reasons on 

which an employer might rely to reject a job applicant.” Id. at 53 (quoting Teneyck v. Omni 

Shoreham Hotel, 365 F.3d 1139, 1150 (D.C. Cir. 2004)). Plaintiff does not include, for instance, 

any information regarding whether he was “significantly better qualified for the job” than other 

candidates or the final selectee, a fact that may raise the necessary inference of discrimination. 

Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1294 (D.C. Cir. 1998). He does not assert that the 

Agency continued to seek applicants for the position after rejecting him. See McDonnell 

Douglas Corp., 411 U.S. at 802. Nor does he “identif[y] specific statements purportedly made” 

by a hiring official “reflecting an animus against individuals of” his protected class. Attakora v. 

District of Columbia, 943 F. Supp. 2d 152, 157 (D.D.C. 2013). Plaintiff does not dispel the 

obvious alternative explanation that the agency hired someone whose qualifications it preferred, 

and his conclusory allegations of racial discrimination “stop[] short of the line between 

possibility and plausibility of ‘entitlement to relief.’” Twombly, 550 U.S. at 557. His Title VII 

discrimination claims must be dismissed. 

The Court now turns to Plaintiff’s retaliation claim. Title VII’s anti-retaliation provision 

renders it illegal for an employer “to discriminate against [an] employee[] . . . because he has

opposed any practice” prohibited by this subchapter, or because “he has made a charge . . . or 

participated in any manner” in a Title VII proceeding. 42 U.S.C. § 2000e-3(a). To prove 

retaliation, a “plaintiff generally must establish that he or she suffered (i) a materially adverse 

action (ii) because he or she had brought or threatened to bring a discrimination claim.” Baloch 

v. Kempthorne, 550 F.3d 1191, 1198 (D.C. Cir. 2008). At the motion to dismiss stage, “[a] 
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plaintiff alleging [a] retaliation [claim] faces a low hurdle.” Winston v. Clough, 712 F. Supp. 2d 

1, 11 (D.D.C. 2011).

Here, however, Plaintiff’s allegations fail to satisfy even this liberal standard. Plaintiff’s 

retaliation claim rests on the conclusion that “in [his] non-referral to the hiring manager, [he] was 

subjected to discrimination” because of his “prior EEO activity.” Compl. ¶¶ 10, 35. While 

Plaintiff did engage in statutorily protected EEO activity by filing an EEO complaint, see Walker 

v. Mattis, 319 F. Supp. 3d 267, 271 (D.D.C. 2018) (explaining that “[f]iling a complaint of 

discrimination . . . plainly constitutes protected activity”), he fails to show a causal connection 

between this activity and the alleged non-selection. The pleaded facts indicate that Plaintiff 

discovered that his GIS specialist application was not referred to the hiring manager before he 

filed the EEO complaint on May 19, 2022. Compl. ¶¶ 10–11. It is therefore not possible that 

Plaintiff’s non-selection represented retaliation for his EEO complaint, as “the only employment 

actions that could plausibly be considered retaliation must have taken place after [the] plaintiff 

engaged in protected activity.” Wilson v. Mabus, 65 F. Supp. 3d 127, 133 (D.D.C. 2014) 

(emphasis added); see also Peternel v. Buttigieg, No. 23-cv-670, 2023 WL 8233548, at *6 

(D.D.C. Nov. 28, 2023) (noting that a plaintiff does not plead causation “when the alleged 

retaliation occurred before the alleged protected activity”). The Complaint contains no facts 

showing that Plaintiff engaged in any other protected activities prior to the alleged non-selection. 

See generally Compl. Plaintiff’s retaliation claim must therefore be dismissed, as well. 

B. Motion to Amend

The Court finally addresses Plaintiff’s motion for leave to amend his Complaint. The 

original Complaint alleged racial discrimination and retaliation for Plaintiff’s EEO activity. 

Plaintiff filed a motion to amend to add a fourth claim of age discrimination in violation of the 
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ADEA. See Proposed Am. Compl. ¶¶ 1, 43. Defendant opposes the motion, contending that 

Plaintiff simply recites the statutory language of the ADEA and does not allege facts creating an 

inference that his non-selection was the result of age discrimination. Def.’s Opp’n Mot. Amend

at 4. The Court has reviewed the Proposed Amended Complaint and denies the motion to 

amend. 

Although leave to amend a complaint shall be “freely give[n] . . . when justice so 

requires,” Fed. R. Civ. P. 15(a)(2), “[c]ourts may deny a motion to amend a complaint as futile

. . . if the proposed claim would not survive a motion to dismiss.” James Madison Ltd. by Hecht 

v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996); see also Norris v. Salazar, 746 F. Supp. 2d 1, 3 

(D.D.C. 2010). This includes when the proposed amended complaint “merely restates the same 

facts as the original complaint.” De Sousa v. Dep’t of State, 840 F. Supp. 2d 92, 113 (D.D.C. 

2012). Plaintiff does not alter or supplement his Title VII claims in the Proposed Amended 

Complaint. Having granted Defendant’s motion to dismiss all of Plaintiff’s Title VII claims, the 

Court concludes that permitting Plaintiff to “amend” those claims would be futile.

Plaintiff’s new age discrimination claim also lacks sufficient facts to render it plausible.

To state an age discrimination claim under the ADEA, a plaintiff must establish that: (i) he 

suffered an adverse employment action (ii) because of his age. See Baloch, 550 F.3d at 1196–97. 

Plaintiff asserts in his reply that “[m]y age was . . . easily discernable by the Selecting official by 

the documents attached to my application,” meaning that the individual conducting hiring knew 

that he “was above the age of 40.” Pl.’s Reply at 1–2. The Proposed Amended Complaint 

contains no further detail other than the language of the ADEA and Plaintiff’s statement that he

is “seeking redress for violations of his rights under” the ADEA. Proposed Am. Compl. ¶ 1. 

Plaintiff nowhere alleges that the Agency declined to select him because of his age. Even if he 
14

did, “bare allegations about [Plaintiff’s] protected status are insufficient to show that the 

treatment [he] received from [the employer] was because of [his] age.” Peters, 873 F. Supp. 2d 

at 194. Plaintiff has provided no factual allegations that indicate how his age could have played 

a role in his alleged non-selection for the GIS role. Because Plaintiff’s ADEA claim “would not 

survive a motion to dismiss,” the Court denies his motion to amend as futile. James Madison, 82 

F.3d at 1099.

V. CONCLUSION

For the foregoing reasons, Defendant’s Motion to Dismiss is GRANTED and Plaintiff’s 

Motion to Amend is DENIED; and it is 

FURTHER ORDERED that Plaintiff is granted leave to file an amended complaint, on 

or before October 21, 2024, that cures the deficiencies identified by the Court in the original 

Complaint and the Proposed Amended Complaint. An order consistent with this Memorandum 

Opinion is separately and contemporaneously issued.

Dated: September 19, 2024 RUDOLPH CONTRERAS

United States District Judge