United States District Court, D. Columbia
August 18, 2005.
LETICIA VALDES, Plaintiff,
DISTRICT OF COLUMBIA, Defendant.
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.
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
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
Relief from interlocutory
orders and judgments is available under the standard, "as justice
requires." Childers, 197 F.R.D. at 190 (citing FED. R. CIV. P.
60(b) Advisory Comm. Notes).
Furthermore, while the law of the case doctrine does not
automatically apply to interlocutory decisions, Langevine v.
Dist. of Columbia, 106 F.3d 1018, 1022-23 (D.C. Cir. 1997), the
court maintains its underlying rationale as applicable. That
doctrine "posits that when a court decides upon a rule of law,
that decision should continue to govern the same issues in
subsequent stages in the same case." Christianson v. Colt.
Indus. Operating Corp., 486 U.S. 800, 816 (1988) (quoting
Arizona v. California, 460 U.S. 605, 618 (1983)). "[T]he
doctrine applies as much to the decisions of a coordinate court
in the same case as to a court's own decisions." Id. The law of
the case doctrine, however, "is not an inexorable command that
rigidly binds a court to its former decisions but rather is an
expression of good sense and wise judicial practice." Melong v. Micronesian Claims Comm'n,
643 F.2d 10, 17 (D.C. Cir. 1980) (quoting Carpa v. Ward Foods,
Inc., 567 F.2d 1316, 1320 (5th Cir. 1978)); see Messinger v.
Anderson, 225 U.S. 436, 444 (1912) (noting that the law of the
case doctrine "merely expresses the practice of courts generally
to refuse to reopen what has been decided, not a limit to their
power"); Virgin Atlantic Airways v. Nat'l Mediation Bd.,
956 F.2d 1245, 1255 (2d Cir. 1992) (stating that "where litigants
have once battled for the court's decision, they should neither
be required, nor without good reason permitted, to battle for it
again"). Given the good sense of this doctrine, nothing prevents
the court from applying the rationales of the law of the case
doctrine to guide a Rule 54 decision. Virgin Atlantic Airways,
956 F.2d at 1255 (holding that "[e]ven if Rule 54(b) allows
parties to request district courts to revisit earlier rulings,
the moving party must do so within the strictures of the law of
the case doctrine").
The court is mindful that
[a] court has the power to revisit prior decisions of
its own or of a coordinate court in any circumstance,
although as a rule courts should be loathe to do so
in the absence of extraordinary circumstances such as
where the initial decision was "clearly erroneous and
would work a manifest injustice."
Christianson, 486 U.S. 800
at 817 (quoting Arizona,
460 U.S. at 618 n. 8). The advisory notes to Rule 60(b) guides that
"interlocutory judgments are . . . left subject to the complete
power of the court rendering them to afford such relief from them
as justice requires." FED. R. CIV. P. 60(b) Advisory Comm. Notes.
Finally, the D.C. Circuit has confirmed that pursuant to the
district court's plenary powers, it may review and amend
interlocutory decisions when it is "consonant with equity."
Schoen v. Wash. Post, 246 F.2d 670, 673 (D.C. Cir. 1957); see
also Childers, 197 F.R.D. at 190. 2. The Court Denies the Plaintiff's Motion to Alter or Amend
the Interlocutory Order
On April 15, 2005, the court dismissed with prejudice the
plaintiff's claim of failure to make her employment position
permanent because she failed to exhaust her administrative
remedies and it was, moreover, time-barred. Mem. Op. at 7-9. The
plaintiff argued that her successful exhaustion of her
administrative remedies for her failure to promote claim renders
her exhaustion successful for her failure to make her position
permanent claim by virtue of her contention that they are
reasonably related. Id. at 8. The court rejected this argument.
Id. at 7-9. The plaintiff now argues that she exhausted her
administrative remedies regarding her failure to make her
position permanent claim independently, that is, without reliance
on a relation to her failure to promote claim. Pl.'s Mot. to
Alter at 1-2. The plaintiff supports this contention with an
affidavit that she submitted to the EEOC on December 9, 2002.
Pl.'s Mot. to Alter at 1. This evidence comes before the court
now, as opposed to when the court was considering the defendant's
motion to dismiss, due to the plaintiff's counsel's professed
inadvertence. Id. at 1. The affidavit states, in relevant part,
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 Aff. at 1.
The plaintiff may present this claim in her complaint if it
could have been expected to be a part of a reasonable EEOC
investigation stemming from the formal charges she actually
filed. Park v. Howard Univ., 71 F.3d 904, 907 (citing Cheek v.
Western and Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir.
1994) (holding that a Title VII lawsuit following an EEOC charge
is limited in scope to claims that are "like or reasonably
related to the allegations of the charge and growing out of such
allegations"). But the lone sentence the plaintiff relies on to
save her claim does not allege discrimination for any reason, lacks sufficient
facts to support an investigation, is the first sentence in a
paragraph wholly unrelated to DCCOC's failure to make the
plaintiff's position permanent, and most importantly, does not as
much as state how the DCOCC responded to these requests. The
court, and presumably the EEOC, is left to infer that her request
for a permanent assignment was denied, that such a denial was the
product of discrimination, and that the plaintiff was requesting
an investigation of this denial. Because this single sentence was
insufficient to put the EEOC on notice, the court concludes that
the plaintiff's one-sentence reference to her requests for
permanent placement as Assistant Section Chief is insufficient to
establish that a reasonable EEOC investigation should have
included this claim as well.
The court's analysis here is analogous to that of the D.C.
Circuit in Marshall v. Fed. Express Corp., 130 F.3d 1095 (D.C.
Cir. 1997). In Marshall, the plaintiff acknowledged that her
administrative complaint failed to put the EEOC on notice of her
imminent termination, but she, like Ms. Valdes, also claimed that
the accompanying affidavit "did the trick." 130 F.3d at 1098. Ms.
Marshall's affidavit foreshadowed her future termination in clear
terms and in two separate phrases. Id. (stating that "[Opal]
was in the process of terminating me," and adding, "I feel as if
I am being given the run around, and I will be terminated soon").
The Marshall court held that these references to possible
events did not amount to a request for an EEOC investigation, and
thus the plaintiff failed to exhaust her administrative remedies.
Id. In the instant case, Ms. Valdes's affidavit also fails to
state what actually occurred, namely whether she was promoted to
a permanent position and if not, why. See Pl.' Aff. at 1.
Because the plaintiff's claim fails to state facts or allegations
that indicate a possible claim of discriminatory employment practices, this court finds no equitable reason to
vacate its prior order dismissing the plaintiff's claim of
failure to make her temporary employment position permanent.
Accordingly, the court denies the plaintiff's motion to alter or
amend the interlocutory order.
B. The Plaintiff's Motion for Leave to File a Third Amended
1. Legal Standard for a Motion for Leave to Amend the Complaint
Under Federal Rule of Civil Procedure 15(a), a party may amend
its pleading once as a matter of course at any time before a
responsive pleading is served. FED. R. CIV. P. 15(a).
Additionally, Rule 15(a) allows a party to amend its pleading to
add a new party.*fn6
Id.; Wiggins v. Dist. Cablevision,
Inc., 853 F. Supp. 484, 499 (D.D.C. 1994); 6 FED. PRAC. & PROC.
2d § 1474. According to our court of appeals, Rule 15(a)
"guarantee[s] a plaintiff an absolute right" to amend the
complaint once at any time so long as the defendant has not
served a responsive pleading and the court has not decided a
motion to dismiss. James V. Hurson Assocs., Inc. v. Glickman,
229 F.3d 277
, 282-83 (D.C. Cir. 2000) (citing FED. R. CIV. P.
15(a)). If there is more than one defendant, and not all have
served responsive pleadings, the plaintiff may amend the
complaint as a matter of course with regard to those defendants
that have yet to answer. 6 FED. PRAC. & PROC. 2d § 1481. Motions to dismiss and for summary
judgment do not qualify as responsive pleadings for the purposes
of Rule 15. James V. Hurson Assocs., 229 F.3d at 283; Bowden
v. United States, 176 F.3d 552
, 555 (D.C. Cir. 1999); U.S.
Info. Agency v. Krc, 905 F.2d 389, 399 (D.C. Cir. 1990).
Once a responsive pleading is served, however, a plaintiff may
amend the complaint only by leave of the court or by written
consent of the adverse party. FED. R. CIV. P. 15(a); Foman v.
Davis, 371 U.S. 178, 182 (1962). The grant or denial of leave
lies in the sound discretion of the district court. Firestone v.
Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996). The court must,
however, heed Rule 15's mandate that leave is to be "freely given
when justice so requires." Id.; Caribbean Broad. Sys., Ltd. v.
Cable & Wireless P.L.C., 148 F.3d 1080, 1083 (D.C. Cir. 1998).
Indeed, "[i]f the underlying facts or circumstances relied upon
by a plaintiff may be a proper subject of relief, he ought to be
afforded an opportunity to test his claim on the merits."
Foman, 371 U.S. at 182. Denial of leave to amend therefore
constitutes an abuse of discretion unless the court gives
sufficient reason, such as futility of amendment, undue delay,
bad faith, dilatory motive, undue prejudice, or repeated failure
to cure deficiencies by previous amendments. Id.; Caribbean
Broad. Sys., 148 F.3d at 1083.
Denial of leave to amend based on futility is warranted if the
proposed claim would not survive a motion to dismiss. James
Madison Ltd. v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996). An
amended complaint is futile if it merely restates the same facts
as the original complaint in different terms, reasserts a claim
on which the court previously ruled, fails to state a legal
theory, or could not withstand a motion to dismiss. Robinson v.
Detroit News, Inc., 211 F. Supp. 2d 101, 114 (D.D.C. 2002)
(quoting 3 Moore's Federal Practice § 15.15 (3d ed. 2000)); Willoughby v. Potomac Elec. Power Co., 100 F.3d 999,
1003 (D.C. Cir. 1996) (affirming the district court's denial of
leave to amend given the "little chance" that plaintiff would
succeed on his claim).
2. The Court Grants in Part and Denies in Part the Plaintiff's
Motion to Amend her Complaint
On April 15, 2005, the court dismissed two of the plaintiff's
claims, namely, (1) her claim of wrongful termination, which the
court dismissed without prejudice; and (2) her claim of failure
to make her position permanent, which the court dismissed with
prejudice. Mem. Op. at 7-11. The plaintiff now seeks to amend her
complaint to resurrect both of these claims. From the outset, the
court notes that it looks to Rule 15(a) and 54(b) for guidance
regarding a motion to amend the complaint to reinstate claims
that the court previously dismissed by way of an interlocutory
decision. Fantasia v. Office of the Receiver of the Comm'n on
Mental Health Services, 2002 U.S. Dist. LEXIS 27609 at *8-9
(D.D.C. Mar. 11, 2002) (stating that "[a]fter a district court
dismisses certain defendants or claims with prejudice, those
defendant[s] or claims can be reinstated through the vehicle of
an amended complaint only if the plaintiff is also entitled to
relief from the judgment or order"); see also Cassell v.
Michaux, 240 F.2d 406, 408 (D.C. Cir. 1956).
a. The Court Grants the Plaintiff Leave to Amend her Complaint to
Include a Claim of Wrongful Termination
On April 15, 2005, the court dismissed without prejudice the
plaintiff's wrongful termination claim because she had not
exhausted her administrative remedies. Mem. Op. at 10-11. The
plaintiff now seeks to amend her complaint to reinstate this
claim alleging that she has since exhausted her administrative
remedies. Pl.'s Mot. to Amend at 1. While the plaintiff states that the defendant does not consent to the motion, id.
at 2, the defendant did not file an opposition. Applying the
standards set forth in Rule 54(b) and 15(a), the court, in the
interests of justice, permits the plaintiff to amend her
complaint to reinstate her alleged administratively exhausted
claim of wrongful termination.
b. The Court Denies the Plaintiff Leave to Amend her Complaint to
Include a Claim of Failure to Make her Position Permanent
On April 15, 2005, the court dismissed with prejudice the
plaintiff's claim of failure to make her position permanent
because it is time-barred. Mem. Op. at 7-10. The court
reconsidered this issue based on additional evidence and
concluded that the plaintiff's proffered evidence was
insufficient to persuade the court, pursuant to Rule 54(b), to
alter or amend its interlocutory decision dismissing this claim
with prejudice. See discussion infra Part III.A. The
plaintiff additionally asks the court to permit her to amend her
complaint to include this claim that has been twice adjudicated
as meriting dismissal with prejudice. The plaintiff's request is
denied for a third time because when an amended complaint would
not survive a motion to dismiss, it is within the discretion of
the court to declare it futile and deny the plaintiff leave to
amend. See Henderson v. Stanton, 1998 U.S. App. LEXIS 30884,
6-7 (D.C. Cir., 1998); see also James Madison Ltd. v. Ludwig,
82 F.3d 1085, 1099 (1996). Here, the plaintiff's claim survived
neither a motion to dismiss nor a motion to alter or amend an
interlocutory decision. Allowing the plaintiff to amend her
complaint to include this claim would be futile; accordingly, the
court denies the plaintiff's request. Id. III. CONCLUSION
For all the foregoing reasons, the court denies the plaintiff's
motion to alter or amend the interlocutory order and grants in
part and denies in part the plaintiff's motion for leave to file
a third amended complaint.*fn7 An order directing the
parties in a manner consistent with this Memorandum Opinion is
separately and contemporaneously issued this 18th day of August
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