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VALDES v. DISTRICT OF COLUMBIA

August 18, 2005.

LETICIA VALDES, Plaintiff,
v.
DISTRICT OF COLUMBIA, Defendant.



The opinion of the court was delivered by: RICARDO URBINA, District Judge

MEMORANDUM OPINION

DENYING THE PLAINTIFF'S MOTION TO ALTER OR AMEND THE INTERLOCUTORY ORDER AND GRANTING IN PART AND DENYING IN PART THE PLAINTIFF'S MOTION FOR LEAVE TO FILE A THIRD AMENDED COMPLAINT
I. INTRODUCTION
This matter comes before the court on the plaintiff's motion to alter or amend the court's interlocutory order,*fn1 which granted in part and denied in part the defendant's motion to dismiss, and the plaintiff's motion for leave to file a third amended complaint. With respect to the plaintiff's motion to alter or amend the interlocutory order, the plaintiff alleges that her counsel inadvertently failed to supply the court with vital evidence that supports the plaintiff's successful exhaustion of administrative remedies for her claim of failure to make her employment position permanent. Because the proffered evidence does not change the court's conclusion that the plaintiff failed to exhaust her administrative remedies, the court denies the plaintiff's motion to alter or amend its interlocutory order. With respect to the plaintiff's motion to amend her complaint, the court, in its discretion and in the interest of justice, grants her request to amend her complaint to resurrect the claim that she was wrongfully terminated. Because the plaintiff's claim of failure to make her position permanent would not survive a motion to dismiss, rendering amendment on this ground futile, the court denies the plaintiff's request to amend her complaint regarding this claim.

  II. BACKGROUND

  A. Factual History

  On July 6, 1998, the defendant hired the plaintiff, who is of Cuban origin, as a grade 12 attorney for the Child Support Enforcement Legal Service Section ("CSELSS") of the District of Columbia Office of the Attorney General ("DCOAG").*fn2 Mem. Op. (April 15, 2005) ("Mem. Op.") at 2. Two months after being hired, the plaintiff began serving on a temporary basis as the Acting Assistant Section Chief, a grade 14 position. Id. Despite requests to her supervisors to make her position permanent, the plaintiff served as Acting Assistant Section Chief for more than four years notwithstanding her temporary status and unchanging wages. Id.

  On September 13, 2002, the plaintiff alerted Joe Perry, the director of the CSELSS, and her supervisor, Luis Rumbaut, by e-mail, of a problem with the company that conducted genetic testing for the CSELSS. Id. The plaintiff accused the genetic testing company of fraud and incompetence and requested assistance from her supervisors in addressing the situation. Id. The Washington Post obtained the plaintiff's e-mail as part of a Freedom of Information Request and the e-mail was subsequently published. Id.

  On September 17, 2002, the position of Section Chief for the CSELSS became vacant. Id. The requirements in the vacancy announcement fluctuated; some announcements required only attorneys who had served as a grade 14 attorney for at least a 12 month period, while others allowed grade 13 attorneys to apply. Id. On November 18, 2002, the DCOAG issued an order naming Andrea Comentale, a grade 13 attorney, as the new Chief of the CSELSS. Id.

  On March 11, 2003, the plaintiff received an evaluation completed by Rumbaut for the plaintiff's performance for the September 1, 2001 to August 31, 2002 period. Id. at 3. Without forewarning, the plaintiff received a performance evaluation which recommended that the plaintiff attend stress management and managing multiple priorities training. Id. As a result, the plaintiff developed a Performance Management Plan,*fn3 which her supervisor at the time, Andrea Comentale, approved. Id. Soon after the plaintiff began implementing her plan, Comentale and another supervisor, June Mickens, told Ms. Valdes to seek a less expensive training curriculum. Id. On May 21, 2004, Corporation Counsel Robert Spagnoletti, Deputy Corporation Counsel Eugene Adams, Chief of Staff Michael Haley, Child Support Director Benidia Rice, and Chief of Operations & Litigation of the CSE Division June Mickens convened a meeting with the plaintiff and Comentale. At this meeting, the foregoing people notified the plaintiff and Comentale that they would be removed from their respective positions. Id. B. Procedural History

  On December 9, 2002, after being passed up for the promotion to Section Chief of the CSELSS, the plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC") alleging that the District did not promote her to the position due to discrimination based on national origin. Id. On that same day, the plaintiff swore an affidavit detailing her complaint that the defendant had failed to promote her. Included was a statement that "[d]uring the past four years, in 1999 and September 2001, I asked [DCOAG] to place me in full capacity in my position with the benefits involved with it." Pl.'s Mot. to Alter or Amend Interloc. Order ("Pl.'s Mot. to Alter"), Attach. 1 (Pl.'s Aff.) at 1.

  On April 23, 2003, the plaintiff amended her EEOC complaint to include the charge of retaliation as an additional discriminatory reason that the DCOAG failed to promote her. Mem. Op. at 4. Specifically, the plaintiff claims that the defendant retaliated against her because the Washington Post obtained and published the e-mail discussing the genetic testing company. Id.

  On October 15, 2003, the plaintiff received her right to sue letter for her allegations of failure to promote due to discrimination on the basis of national origin and retaliation. Id. On January 13, 2004, the plaintiff commenced the instant suit claiming national origin discrimination and retaliation for failure to promote her and for failure to make her temporary position permanent. Id. On June 14, 2004, the plaintiff filed her second charge with the EEOC, alleging unlawful termination. Id.

  Back in the courthouse, on June 21, 2004, the plaintiff filed her second amended complaint to include her termination claim. Id. On May 26, 2005, the plaintiff filed a motion to alter or amend the court's interlocutory order, which granted in part and denied in part the defendant's motion to dismiss. The next day, the plaintiff filed a motion for leave of court to file a third amended complaint to include her termination claims and failure to make her position permanent claims. The defendant did not file an opposition to either of these motions. The court now addresses each motion in turn.

  III. ANALYSIS

 
A. The Plaintiff's Motion to Alter or Amend the Interlocutory Order
1. Legal Standard for Altering or Amending an Interlocutory Order or Judgment
  A district court may revise its own interlocutory decisions "at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties." FED. R. CIV. P. 54(b); see also Muwekma Tribe v. Babbitt, 133 F. Supp. 2d 42, 47-48 (D.D.C. 2001); Childers v. Slater, 197 F.R.D. 185, 190 (D.D.C. 2000). The standard of review for interlocutory decisions differs from the standards applied to final judgments under Federal Rules of Civil Procedure 59(e)*fn4 and 60(b).*fn5 ...

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