The opinion of the court was delivered by: RICARDO URBINA, District Judge
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
This matter comes before the court on the plaintiff's motion to
alter or amend the court's interlocutory order,*fn1
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.
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
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.)
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.
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
A. The Plaintiff's Motion to Alter or Amend the Interlocutory
1. Legal Standard for Altering or Amending an Interlocutory Order
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