UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
March 1, 2007
LASHAWN LEMMONS, PLAINTIFF,
GEORGETOWN UNIVERSITY HOSPITAL, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Reggie B. Walton United States District Judge
LaShawn Lemmons ("the plaintiff") brings this action against Georgetown University Hospital ("the Hospital") and Debbie Ellerby ("the defendants"),*fn1 alleging violations of the District of Columbia Human Rights Act ("DCHRA"), D.C. Code § 2-1401 et seq. (2001), and 42 U.S.C. § 1981 (2000) ("Section 1981"), that were committed during the course of her employment as a laboratory technologist with the Hospital. On May 4, 2006, the Court issued a Memorandum Opinion and Order granting in part and denying in part the defendants' motion for summary judgment on the plaintiff's discrimination and retaliation claims. Memorandum Opinion ("Opinion").*fn2 Currently before the Court is the plaintiff's motion to alter or amend the Court's judgment pursuant to Federal Rule of Civil Procedure 59(e) ("Pl.'s Mot.") and the defendants' motion for reconsideration pursuant to Federal Rule of Civil Procedure 54(b) ("Defs.' Mot.").*fn3 For the reasons set forth below, the Court denies both parties' motions.
The facts of this case are set forth in detail in this Court's prior opinion. Opinion at 2-11. However, it is helpful to recite them briefly here.
The plaintiff, an African-American woman belonging to a religious organization known as the Congregation of Universal Wisdom, has been employed by the Hospital as an at-will part-time technologist since 1999.*fn4 Amended Complaint ("Am. Compl.") ¶¶ 10-12, 23; Defendants' Motion for Summary Judgment ("Defs.' Sum. Judg. Mot.") ¶ 56. In the spring of 2002, the plaintiff voiced concerns to her immediate supervisors regarding the manner in which tuberculosis ("TB") samples were being handled and stored in the Hospital's main laboratory incubator. Am. Compl. ¶¶ 15-16. In May 2002, "[w]hen no action was taken [by her supervisors] . . . to remedy the improper handling and storage of the TB samples," the plaintiff submitted a memorandum to defendant Ellerby and other Hospital personnel reiterating her concerns.*fn5 Id. ¶ 17. The plaintiff also alleged in this memorandum that one of her supervisors, Marcia Betaharon, was subjecting her to "some very deliberate and cruel harassment devices" and, inter alia, "increasingly using her power as Team Leader to unjustifiably criticize and complain about [the plaintiff's] work performance in such a way as to question the validity of [the plaintiff's] skills as a Microbiology Tech." Plaintiff's Opposition to Defendants Georgetown University Hospital's and Debbie Ellerby's Motion for Summary Judgment ("Pl.'s Sum. Judg. Opp."), Exhibit ("Ex.") F (May 22, 2002 letter from LaShawn Lemmons to Sharon Novak, Debbie Ellerby, Zeni Evangelista, and David Garvin) ("May 22, 2002 Letter") at 1. Nowhere in the plaintiff's memorandum did she intimate that the harassment she described was racially based or racially motivated. See generally id.
As a result of its investigation into the plaintiff's allegations of harassment, the Hospital discovered that the plaintiff was not fully trained as a laboratory technologist. Defs.' Sum. Judg. Mot. ¶ 25; see also Am. Compl. ¶ 21(d). This discovery led the Hospital to request that the plaintiff either undergo further training to become a qualified, full-time technologist or retain her present duties in a part-time capacity under a new title and a lower pay grade. Defs.' Sum. Judg. Mot., Ex. 16 (August 30, 2002 letter from Debbie Ellerby to LaShawn Lemmons) at 1; see also Am. Compl. ¶¶ 21(f)-(i). The plaintiff refused to participate in the additional training "because she felt she was being railroaded into an unfair training regime that would ultimately lead to her termination." Pl.'s Sum. Judg. Opp. ¶ 41. Instead, the plaintiff elected, "with great reservations," to transfer to the part-time technologist position, where she remains to this date. Defs.' Sum. Judg. Mot., Ex. 15 (September 23, 2002 letter from LaShawn Lemmons to Debbie Ellerby) at 2.
The plaintiff and the defendants also clashed over the Hospital's policy that all District of Columbia employees involved in direct or indirect patient care receive an annual health examination, including a tuberculin Purified Protein Derivative ("PPD") skin test, also known as a Mantoux test. Defs.' Sum. Judg. Mot., Ex. 18 (Georgetown University Hospital Health Policy 501) at 1, 3. The defendants contend that the Hospital's health clearance policies are "strictly enforce[d]" and that "an employee's failure to take the required PPD test presents a significant risk of liability for the Hospital." Defs.' Sum. Judg. Mot. ¶ 47. Nevertheless, after receiving notes from the plaintiff's physician, the Hospital granted the plaintiff a deferral from the PPD skin test for medical reasons in the spring of 2002 and 2003. Id. ¶¶ 51-53; see also id., Ex. 24 (March 28, 2002 note from Dr. Kumuda Reddy); id., Ex. 25 (April 24, 2003 note from Dr. Kumuda Reddy). In addition to raising a medical objection to the PPD tests, the plaintiff presented the Hospital with two letters signed by the Pastor of the Congregation of Universal Wisdom. Defs.' Sum. Judg. Mot., Exs. 27 and 28 (August 26, 2003 and September 26, 2003 letters from Walter P. Schilling); see also Defs.' Sum. Judg. Mot. ¶ 56; Pl.'s Sum. Judg. Opp. ¶ 56. These letters state that PPD skin tests "are forbidden by the religious [tenets] of the Congregation of Universal Wisdom," of which the plaintiff is a member.*fn6 Defs.' Sum. Judg. Mot. ¶ 56.
Despite these religious and medical objections, Hospital personnel ultimately concluded that the plaintiff's continued refusal to submit to a PPD skin test was "unacceptable." Defs.' Sum. Judg. Mot., Ex. 29 (November 4, 2003 e-mail from Paula Sullivan to Dr. Princy Kumar). Consequently, on November 19, 2003, the Hospital's Director of Health Services issued a Statement of Work Status, which indicated that the plaintiff was "not able to perform the essential functions of [her] job" due to her refusal to take the PPD skin test. Defs.' Sum. Judg. Mot., Ex. 30 (Statement of Work Status). On that same day, Ellerby mailed the plaintiff a letter informing her that she was suspended without pay as of November 21, 2003, because of her "failure to comply with the health care requirements at Georgetown University Hospital." Defs.' Sum. Judg. Mot., Ex. 31 (November 19, 2003 letter from Debbie Ellerby to LaShawn Lemmons). The letter further stated that the plaintiff had thirty days from the effective date of her suspension to complete all elements of her annual physical clearance or she would be terminated.*fn7 Id.
On September 22, 2003, before her suspension for refusing to take the PPD skin test, the plaintiff, acting pro se, filed a lawsuit against the defendants in the Superior Court of the District of Columbia. Defs.' Mot., Ex. 30 (Complaint). Following her suspension, the plaintiff retained counsel and filed an amended complaint on May 9, 2004. Am. Compl. at 8. In her amended complaint, the plaintiff alleged discrimination and retaliation under the DCHRA, which "provid[es] for a private right of action against employment discrimination on the basis of, inter alia, race, color, sex, national origin and religion," and Section 1981. Id. ¶¶ 1-2. Specifically, the plaintiff alleged that the defendants "engaged in a concerted pattern of discrimination and retaliation against her," which included: (1) reducing her hours, "thus denying [her] the opportunity to continue working in a full-time capacity, causing [her] to lose her health insurance and other benefits"; (2) refusing to allow her to work overtime; (3) demoting her one grade in salary; and (4) telling her "that she was no longer qualified to perform the duties she had been performing satisfactorily for almost three years." Id. ¶ 21. The plaintiff therefore claims that the defendants "have intentionally engaged in discrimination and retaliation against [her] because of her race and because of her protected activity." Id. ¶¶ 26, 29. The plaintiff's amended complaint expressly states that she "refused to take the Mantoux PPD tuberculosis test on religious and medical grounds" and that she was suspended from her employment based on this refusal. Id. ¶¶ 21(j)-(k). However, the plaintiff does not specifically set forth a cause of action for religious discrimination in the Statement of Claims section of her amended complaint. See id. ¶¶ 24-34.
On May 20, 2005, the defendants moved for summary judgment on the plaintiff's racial discrimination and retaliation claims. Defs.' Sum. Judg. Mot. at 1. Due to the illness of her counsel, the plaintiff requested, and was granted, multiple extensions of time in which to respond to the defendants' motion before finally filing an opposition brief on September 5, 2005.*fn8 See Dkt. Nos. 16, 21, 23 (motions to file out of time); see also Pl.'s Sum. Judg. Opp. Then, on September 21, 2005, the plaintiff's counsel filed a motion to withdraw from his representation of the plaintiff, citing his "deteriorating health" and his doctor's advice that he "cease all professional activities as quickly as possible." Motion to Withdraw at 1. The Court granted this motion in December 2005, and the plaintiff proceeded without the representation of counsel until the defendants' summary judgment motion was resolved. December 14, 2005 Minute Order.
On May 4, 2006, the Court issued a Memorandum Opinion and Order which granted in part and denied in part the defendants' motion for summary judgment. Opinion at 32. First, the Court found that the plaintiff "ha[d] completely failed to demonstrate that any of the unfavorable employment decisions alleged in the complaint give rise to an inference of intentional [racial] discrimination." Id. at 15. Second, the Court found that the plaintiff's retaliation claims "are not based on any activity statutorily protected by the DCHRA or Section 1981." Id. at 22 (internal quotation marks and citation omitted). The Court therefore concluded that the plaintiff had not established a prima facie case of race discrimination or retaliation and granted summary judgment to the defendants on these claims. See id. at 13-24, 32. However, the Court also concluded that the plaintiff had articulated a cause of action for religious discrimination under the DCHRA in the amended complaint, based on her representation that she was suspended for refusing to take the PPD skin test despite her stated religious objections. Id. at 24-26; see also id. at 25-26 (concluding "that the plaintiff's complaint, when read as a whole under the liberal pleading standards of [Federal Rule of Civil Procedure 8], provided the defendants with sufficient notice of the plaintiff's claim of religious discrimination under the DCHRA") (internal quotation marks, bracketing, and citations omitted). Because the parties failed to address this claim in their summary judgment pleadings, id. at 24, and because the plaintiff's federal and constitutional claims had been resolved, id. at 26, the Court remanded this action to the Superior Court of the District of Columbia, id. at 26-32.
On May 18, 2006, the defendants filed a motion for reconsideration of the Court's conclusion that the plaintiff's complaint advanced a claim of religious discrimination. Defs.' Mot. at 1. Specifically, the defendants argue that (1) the plaintiff's amended complaint "does not state a claim for religious discrimination under the Federal Rules," id. at 8; (2) "[t]he natural narrowing of claims and issues through the pretrial process made clear that [the] [p]laintiff was not pursuing a religious discrimination claim," id. at 6; see also id. at 10 (contending that "[the] [p]laintiff's subsequent descriptions of her claims in both her Joint Statement of the Case . . . [and] her sworn deposition testimony made it clear that [she] was not bringing a [claim of religious discrimination]"); and (3) to the extent the plaintiff did articulate a religious discrimination claim in her complaint, she "unequivocally abandoned that claim in her deposition," id. at 9.*fn9 In response, the plaintiff argues that (1) she articulated a cause of action for religious discrimination under the DCHRA in her amended complaint, Pl.'s Opp. at 5; (2) the Joint Statement of the Case is not dispositive of her religious discrimination claim, because the omission of a claim from a "joint status 'meet and confer' statement" does not serve to bar or waive that claim if it is adequately stated in the complaint, id. at 5-6; and (3) her deposition testimony should not be construed as an abandonment of her claim of religious discrimination, id. at 6-9.
On May 31, 2006, having retained new counsel, the plaintiff filed a motion to alter or amend the Court's order granting summary judgment as to her claim of retaliation.*fn10 Pl.'s Mot. at 3. The plaintiff contends in this motion that due to "her prior counsel's illness and subsequent withdrawal from the case," certain relevant documents were not included or referenced in her opposition to the defendants' motion for summary judgment. Id. at 1-2. The plaintiff further asserts that these documents demonstrate that, contrary to the Court's conclusion, she engaged in statutorily protected activity sufficient to state a prima facie case of retaliation under the DCHRA and Section 1981. Id. at 2-3. The defendants, however, argue that the plaintiff's motion to alter or amend judgment is untimely filed, Defs.' Opp. at 3-4, and "does nothing more than rehash arguments previously made and . . . offer evidence that [the plaintiff] was fully aware of and could have submitted at the time she filed her [o]pposition," id. at 8.
II. Standards of Review
The parties disagree as to the precise standard under which their respective motions for reconsideration should properly be evaluated. See Defs.' Mot. at 5-6; Defs.' Opp. at 3-4; Pl.'s Reply at 2-4. The defendants contend that the plaintiff's motion, although filed pursuant to Rule 59(e), should be treated as a motion for relief from entry of judgment pursuant to Rule 60(b). Defs.' Opp. at 3-4; see also Pl.'s Reply at 2-4 (disputing the defendants' contention). The defendants also claim that their own motion for reconsideration is properly brought neither as a Rule 59(e) motion nor a Rule 60(b) motion, but rather as a Rule 54(b) motion for relief from an interlocutory order. Defs.' Mot. at 5-6. As discussed further below, the Court concludes that both parties' motions should be denied regardless of whether they are treated as filed under Rule 54(b), 59(e), or 60(b). However, a recitation of each standard is nonetheless appropriate.
Rule 54(b) permits a court to revise or reconsider any order "which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties"-that is, any order of interlocutory judgment-"at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all parties."*fn11 Fed. R. Civ. P. 54(b). As the defendants note, motions for reconsideration of interlocutory orders "are within the discretion of the trial court," Lewis v. United States, 290 F. Supp. 2d 1, 3 (D.D.C. 2003) (internal quotation marks and citation omitted), and may be entered "as justice requires," Judicial Watch v. Dep't of Army, ___ F. Supp. 2d ____, ____, Civ. No. 04-301, 2006 WL 3600329, at *6 (D.D.C. Dec. 12, 2006) (internal quotation marks and citation omitted); see id. (further stating that "the 'as justice requires' standard amounts to determining whether reconsideration is necessary under the relevant circumstances") (internal quotation marks and citation omitted); see also Smith v. Massachusetts, 543 U.S. 462, 475 (2005) (Ginsburg, J., dissenting) (describing as "hardly novel" the view that "[a] district court has the inherent power to reconsider and modify its interlocutory orders prior to the entry of judgment") (internal quotation marks and citation omitted); 47 Am. Jur. 2d Judgments § 661 (2007) (stating that "[a] motion for relief from judgment applies only to final appealable orders, not interlocutory orders. . . . [h]owever, the trial court retains such plenary power to afford such relief from interlocutory decrees as justice requires") (footnotes omitted); 49 C.J.S. Judgments § 277 (2007) (stating that "[t]he trial court has plenary power to revise, modify, set aside, or vacate a judgment at any time before it becomes final") (footnotes omitted). As another member of this Court has stated, it is appropriate to grant a Rule 54(b) motion "when the Court has patently misunderstood a party, has made a decision outside the adversarial issues presented to the Court by the parties, [or] has made an error not of reasoning but of apprehension." Singh v. George Washington Univ., 383 F. Supp. 2d 99, 101 (D.D.C. 2005) (internal quotation marks and citation omitted). "Errors of apprehension may include [the] Court's failure to consider controlling decisions or data that might reasonably be expected to alter the conclusion reached by the [C]court." Id. (internal quotation marks and citation omitted). The Court's discretion to modify or reconsider its order under Rule 54(b), however, is nonetheless "limited by the law of the case doctrine and subject to the caveat that, where litigants have once battled for the [C]court's decision, they should neither be required, nor without good reason permitted, to battle for it again." Judicial Watch, ___ F. Supp. 2d at ____, 2006 WL 3600329, at *7 (internal quotation marks and citation omitted). Finally, "it is clear that courts have more flexibility in applying Rule 54(b) than in determining whether reconsideration is appropriate under Rules 59(e) and 60(b)." Cobell v. Norton, 224 F.R.D. 266, 272 (D.D.C. 2004) (internal quotation marks and citation omitted).
A motion to alter or amend judgment pursuant to Rule 59(e) is also subject to the Court's discretion and "need not be granted unless the [Court] finds that there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Messina v. Krakower, 439 F.3d 755, 758 (D.C. Cir. 2006) (internal quotation marks and citation omitted). "[A] Rule 59(e) motion to reconsider is not simply an opportunity to reargue facts and theories upon which a court has already ruled, nor is it a vehicle for presenting theories and arguments that could have been advanced earlier." Fresh Kist Produce, LLC v. Choi Corp., 251 F. Supp. 2d 138, 140 (D.D.C. 2003) (internal quotation marks and citations omitted); see also Messina, 439 F.3d at 759 (stating that Rule 59(e) motions may not simply "rely on the same arguments . . . originally made" by the moving party) (internal quotation marks and citation omitted). "While the [C]court has considerable discretion in ruling on a Rule 59(e) motion, the reconsideration and amendment of a previous order is an extraordinary measure." Fresh Kist Produce, 251 F. Supp. 2d. at 140 (citing Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (per curiam)); see also Jung v. Ass'n of Am. Med. Coll., 184 Fed. Appx. 9, 13 (D.C. Cir. 2006) (noting "the high standard for relief under Rule 59(e)"). Furthermore, Rule 59(e) motions "shall be filed no later than 10 days after the entry of judgment." Fed. R. Civ. P. 59(e). However, "[a]n untimely motion under Rule 59(e) may be considered as a motion under Rule 60(b) if it states grounds for relief under the latter rule." Computer Professionals for Social Resp. v. U.S. Secret Serv., 72 F.3d 897, 903 (D.C. Cir. 1996).
Under Rule 60(b), the Court may grant a party relief from an adverse judgment on grounds, inter alia, of "mistake, inadvertence, surprise, . . . excusable neglect[,] . . . [or] newly discovered evidence which by due diligence could not have been discovered in time [for the filing of a Rule 59 motion]."*fn12 Fed. R. Civ. P. 60(b); see Gonzalez v. Crosby, 545 U.S. 524, 528 (2005) (stating that "Rule 60(b) allows a party to seek relief from a final judgment . . . under a limited set of circumstances") (footnote omitted). "Relief under Rule 60(b)(1) motions [for mistake, inadvertence, surprise, or excusable neglect] is rare; such motions allow district courts to correct only limited types of substantive errors." Hall v. CIA, 437 F.3d 94, 99 (D.C. Cir. 2006). In general, "Rule 60(b) was intended to preserve the delicate balance between the sanctity of final judgments and the incessant command of the [C]court's conscience that justice be done in light of all the facts." Smalls v. United States, 471 F.3d 186, 191 (D.C. Cir. 2006) (internal quotation marks, ellipses, and citation omitted). The Rule "cannot be employed simply to rescue a litigant from strategic choices that later turn out to be improvident." Id. (internal quotation marks, ellipses, and citation omitted). Moreover, "[t]o obtain Rule 60(b) relief, the movant must give the [Court] reason to believe that vacating the judgment will not be an empty exercise or a futile gesture." Norman v. United States, 467 F.3d 773, 775 (D.C. Cir. 2006) (internal quotation marks and citation omitted). The Court may properly deny a Rule 60(b) motion for reconsideration of a final judgment where the movant fails to "at least establish that it possesses a potentially meritorious claim or defense which, if proven, would bring success in its wake."
Murray v. District of Columbia, 52 F.3d 353, 355 (D.C. Cir. 1995) (internal quotation marks and citation omitted).
Here, the defendants argue that the Court's order granting summary judgment as to the plaintiff's racial discrimination and retaliation claims and remanding the plaintiff's religious discrimination claim to the Superior Court is not a final judgment but an interlocutory order. Defs.' Mot. at 5-6. As such, the defendants contend that their motion for reconsideration of the Court's order is properly brought pursuant to Rule 54(b), rather than Rules 59(e) or 60(b). Id.; see 12 James Wm. Moore, et al., Moore's Federal Practice § 60.23 (4th ed. 2006) (stating that "Rule 60(b) does not govern relief from interlocutory orders, that is to say any orders in which there is something left for the [C]court to decide after issuing the order"). The defendants further argue that even if their motion is properly considered under Rules 59(e) or 60(b), it "[n]onetheless . . . meets [the] requirements of [those rules]."*fn13 Defs.' Mot. at 5 n.1. The Court is inclined to conclude that its May 4, 2006 Order, which relinquished jurisdiction over the plaintiff's remaining claim and remanded that claim-and this matter-in full to the District of Columbia's Superior Court, "adjudicat[ed] all the claims and the rights and liabilities of all parties" in this Court, and should thus be viewed as a final judgment for the purposes of the defendants' motion for reconsideration. Fed. R. Civ. P. 54(b); see Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 714-15 (1996) (finding that a remand order based on abstention principles constituted a final judgment for the purpose of reviewability because, inter alia, (1) "the district court disassociate[d] itself from the case entirely, retaining nothing of the matter on the federal court's docket" and (2) the order "conclusively determine[d] an issue that is separate from the merits, namely, the question whether the federal court should decline to exercise its jurisdiction in the interest of comity and federalism") (discussing Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983)). As detailed more fully below, however, the Court finds that the defendants' motion should not be granted even under the "more flexib[le]" standard of Rule 54(b). Cobell, 224 F.R.D. at 272 (internal quotation marks and citation omitted). Thus, the Court need not determine whether the motion should properly have been brought under Rules 59(e) or 60(b).
The defendants also argue that the plaintiff's motion to alter or amend judgment was filed untimely under Rule 59(e) and should thus be denied or, at the very least, converted into a Rule 60(b) motion for relief from judgment and considered on that basis.*fn14 Defs.' Opp. at 3-4. Again, however, the Court concludes that it is clear that the plaintiff's motion should be denied whether or not it is considered as a Rule 59(e) motion. It is therefore unnecessary for the Court to decide under which rule the plaintiff's motion is properly brought.
A. The Plaintiff's Motion for Reconsideration
The plaintiff proffers two pieces of documentary evidence in support of her motion for reconsideration, both of which purportedly "demonstrat[e] that [she] did engage in protected activity" sufficient to establish a prima facie claim of retaliation under the DCHRA and Section 1981.*fn15 Pl.'s Mot. at 2; see also Pl.'s Reply at 7 (contending that "[t]he documents submitted by the [p]laintiff in [her motion for reconsideration] establish that there was other protected activity in August and September 2002"). One of these documents, a September 2002 memorandum from the plaintiff to defendant Ellerby, was part of the record upon which the Court relied when it rendered its May 2006 decision. Opinion at 5; see also Defs.' Sum. Judg. Mot., Ex. 5 (September 23, 2002 memorandum from LaShawn Lemmons to Debbie Ellerby) ("September 2002 Memo"). The other document, an August 2002 memorandum from the plaintiff to Ellerby, was admittedly available to the plaintiff at the time that she opposed the defendants' motion for summary judgment. Pl.'s Reply at 7; see Pl.'s Mot., Ex. 2 (August 12, 2002 memorandum from LaShawn Lemmons to Debbie Ellerby) ("August 2002 Memo"). The plaintiff argues, however, that because her then-counsel "was experiencing a medical emergency and was unable to provide a full and complete response to the motion," she should now be granted equitable leave "to present evidence, if it exists, that establishes that she engaged in protected activity." Pl.'s Reply at 7.
The plaintiff's arguments are unpersuasive. To begin with, the plaintiff fundamentally misstates the grounds for the grant of summary judgment as to her retaliation claim when she asserts that "the [C]court specifically concluded [in its May 2006 opinion] that the retaliation claim failed because there was only one incident of protected activity." Id. On the contrary, the Court held unambiguously that the plaintiff "failed to demonstrate that she has been subjected to a pattern of retaliatory acts because of activity protected under the DCHRA or Section 1981." Opinion at 21 (internal quotation marks and citation omitted) (emphasis added). While the Court did go on to say that "the sole [allegedly] protected activity that the plaintiff identifies in this case is her May 2002 complaint of harassment against her supervisor, Marcia Betaharon," it was not the quantity but the quality of this alleged activity-specifically, the fact that the May 2002 complaint clearly "[did] not refer to harassment or discrimination based on race or any other protected category recognized by either the DCHRA or Section 1981"-which led the Court to grant the defendants' motion for summary judgment on the plaintiff's retaliation claim. Id. at 23 (internal quotation marks and citations omitted). Had the plaintiff provided three dozen examples of "protected activity" in the same vein as her May 2002 complaint, the Court's conclusion would have been no less warranted. See Broderick v. Donaldson, 437 F.3d 1226, 1232 (D.C. Cir. 2006) (stating that the complaint against which retaliatory conduct allegedly occurred "must in some way allege unlawful discrimination") (emphasis added); see also id. (observing that "[n]ot every [employment] complaint garners its author [legal] protection [against retaliatory action]") (citations omitted); Sitar v. Indiana Dep't of Transp., 344 F.3d 720, 727-28 (7th Cir. 2003) (affirming grant of summary judgment as to retaliation claim where the plaintiff "complained only that she felt picked on, not that she was discriminated against 'because of' sex or gender") (citation omitted).
Moreover, neither document submitted by the plaintiff in support of her motion for reconsideration amounts to anything resembling "new evidence that is likely to change the outcome of the case." Pl.'s Reply at 7. That is, even if the Court had not already considered the September 2002 memorandum in making its decision, and even if equitable concerns merited an examination of the August 2002 memorandum at this late date, the plaintiff still fails to demonstrate "that she had complained of discrimination based on race, or otherwise engaged in activity protected by the DCHRA or Section 1981[,] before the allegedly retaliatory actions occurred." Opinion at 24 (emphasis added). The August 2002 memorandum expresses the plaintiff's concerns that she is "being made to go back into a hostile work environment" after complaining of harassment. August 2002 Memo at 1. It further states her belief that "[her] employer is discriminating against [her] and retaliating against [her] for coming forward to report the workplace abuses that [she] suffered." Id. The memo does not mention race or any other category protected by the DCHRA or Section 1981. See generally id. Indeed, it is entirely backward-looking, referring only to retaliation allegedly incurred as a result of the plaintiff's May 2002 complaint and the subsequent harassment investigation. See generally id. Similarly, the September 2002 memorandum goes into great detail regarding the May 2002 complaint and the subsequent retaliation, see September 2002 Memo at 1 (stating that "after [the plaintiff] filed a complaint in May 2002, [she] experienced retaliation"); id (stating the plaintiff's belief that the July 2002 requirement that she undergo additional training "was both retaliatory and discriminatory"); id. at 2 (stating that comments made during the meeting at which the plaintiff's May 2002 complaint was mediated "suggested that [the defendants] wanted to punish [the plaintiff] (ostensibly for filing the complaint)"), but does not provide any other examples of instances in which the plaintiff purportedly "engaged in statutorily protected activity" sufficient to make out a prima facie retaliation claim, Hussain v. Nicholson, 435 F.3d 359, 366 (D.C. Cir. 2006) (citation omitted). And while the September 2002 memorandum does make generalized allegations of racial discrimination, September 2002 Memo at 3 (alleging that "since [the plaintiff's employment] no white employees or Microbiology employees in a similar or comparable situation have been asked to take such a demotion or re-train"), the plaintiff does not now allege that any adverse employment action was taken against her as a result of the September 2002 memo.*fn16 See generally Pl.'s Mot.; Pl.'s Reply. Such a causal connection must exist-or, at this stage in the litigation, must at least be alleged-before a prima facie claim of retaliation can be made. Hussain, 435 F.3d at 366 (stating that "plaintiffs alleging retaliation must demonstrate that (1) they engaged in statutorily protected activity, (2) the employer took an adverse employment action against them, and (3) a causal connection existed between the two") (citation omitted). In short, the documents relied on by the plaintiff discuss retaliation only in the past tense and exclusively when referring to allegedly retaliatory conduct after the May 2002 complaint, the general and generic contents of which the Court has already determined-and the plaintiff has already admitted-do not constitute protected activity under the DCHRA or Section 1981. See Opinion at 21 (observing that "the plaintiff admits that she did not believe the harassing behavior complained of in her May 22, 2002 memorandum-from which her further claims of discrimination and retaliation all ultimately flow-was motivated by racial animus") (citing Defs.' Sum. Judg. Mot., Ex. 1 (Plaintiff's Deposition) at 57 ("Pl.'s Dep.")). And to the extent the September 2002 memorandum might itself constitute protected activity in that it makes some reference to the plaintiff's belief that she was being discriminated against on racial grounds, the plaintiff has failed to point to any adverse employment actions that were undertaken as a result of that memorandum. See Hussain, 435 F.3d at 366; Holcomb v. Powell, 433 F.3d 889, 901-02 (D.C. Cir. 2006). Thus, the Court cannot "find that there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice" sufficient to grant the plaintiff's motion for reconsideration pursuant to Rule 59(e), let alone the more demanding Rule 60(b) standard. Messina, 439 F.3d at 758 (internal quotation marks and citation omitted). The plaintiff's motion must therefore be denied.
B. The Defendants' Motion for Reconsideration
The defendants contend, "[b]ased on facts unknown to the Court at the time," that the Court should reconsider its conclusion that the plaintiff's amended complaint stated a claim of religious discrimination under the DCHRA. Defs.' Mot. at 1; see Opinion at 24-26. Specifically, the defendants argue that (1) the plaintiff's complaint fails to provide "a short and plain statement . . . giv[ing] the defendant fair notice" of a religious discrimination claim, Defs.' Mot. at 8 (internal quotation marks and citation omitted); (2) "[the] plaintiff's subsequent descriptions of her claims in both her Joint Statement of the Case . . . [and] her sworn deposition testimony make it clear that [she] was not bringing a [claim of religious discrimination]," id. at 10; and (3) any religious discrimination claim asserted in the complaint was "unequivocally abandoned . . . in [the plaintiff's] deposition," id. at 9. None of the facts submitted by the defendants alter the Court's conclusion "that the plaintiff's [amended] complaint, when read as a whole under the liberal pleading standards of Rule 8 of the Federal Rules of Civil Procedure, provided the defendants with sufficient notice of the plaintiff's claim of religious discrimination under the DCHRA." Opinion at 25-26. Furthermore, after carefully examining the relevant caselaw, the Court cannot agree with the defendants that the plaintiff's deposition testimony somehow equates to the implicit abandonment of her religious discrimination claim. Therefore, and for the reasons that follow, the Court will deny the defendants' motion for reconsideration.
"[T]he Federal Rules of Civil Procedure require only 'a short and plain statement of the claim showing that the pleader is entitled to relief.'" Dura Pharm., Inc., 544 U.S. at 346 (quoting Fed. R. Civ. P. 8(a)(2)). The "short and plain statement" required by Rule 8(a) "must provide the defendant with fair notice of what the plaintiff's claim is and the grounds upon which it rests." Id. (quoting Conley v. Gibson, 355 U.S. 41, 47 (1955)) (internal quotation marks omitted). Above all, "courts are charged with construing the complaint so as to do substantial justice." Stokes v. Cross, 327 F.3d 1210, 1215 (D.C. Cir. 2003) (quoting Fed. R. Civ. P. 8(f)) (internal quotation marks and ellipses omitted).
These rules of pleading "are not meant to impose a great burden upon a plaintiff." Dura Pharm., 544 U.S. at 347 (citation omitted). "The issue is not whether the plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)) (internal quotation marks omitted). "To that end, the complaint is construed liberally in the plaintiffs' favor," and plaintiffs are granted "the benefit of all inferences that can be derived from the facts alleged." Stokes, 327 F.3d at 1215 (quoting Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)) (internal quotation marks omitted). Furthermore, because "all that is required [under Rule 8(a)] is that the complaint give the defendants fair notice of each claim and its basis," Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1118 (D.C. Cir. 2000) (internal quotation marks and citations omitted), "[a] complaint . . . need not allege all that a plaintiff must eventually prove," Atchinson v. District of Columbia, 73 F.3d 418, 421-22 (D.C. Cir. 1996). See Stokes, 327 F.3d at 1215 (stating that a complaint need not "set out in detail the facts upon which [a plaintiff] bases his claim") (internal quotation marks and citation omitted); see also Scheuer, 416 U.S. at 236 (noting that "it may appear on the face of the pleadings that a recovery is very remote and unlikely[,] but that is not the test").
The liberal pleading standard of Rule 8(a) has been made clear in the specific context of religious discrimination claims. As the District of Columbia Circuit has observed, "all that a Title VII complaint has to say to survive dismissal under [Federal Rule of Civil Procedure] 12(b)(6) is: 'The plaintiff was terminated from his job because of his religion.'" Ciralsky v. CIA, 355 F.3d 661, 671 (D.C. Cir. 2004) (citations omitted); see also Sparrow, 216 F.3d at 1115 (noting that a complaint stating only that the plaintiff "was turned down for a job because of [his or her] race" is sufficient to meet the Rule 8(a) standard) (quoting Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998)). Thus, it reasonably follows that a complaint which (1) brings a claim under a statute forbidding, inter alia, religious discrimination and (2) alleges that the plaintiff was "suspended . . . from her employment . . . [for] refus[ing] to take [a] Mantoux PPD tuberculosis test on religious and medical grounds," Am. Compl. ¶¶ 15(j), (k), is adequate to "provide the defendant[s] with fair notice of what the plaintiff's claim is and the grounds upon which it rests," Dura Pharm., 544 U.S. at 346 (internal quotation marks and citation omitted). Cf. Smith v. Frichtl Steel and Welding, Civ. No. 04-4239, 2005 WL 1267203, at *1 n.1 (S. D. Ill. Apr. 29, 2005) (concluding that complaint failed to provide "short and plain statement" of religious discrimination claim where the plaintiff "fail[ed] to mention his religious beliefs and fail[ed] to state how [the defendant] failed to accommodate his alleged religious beliefs").
Furthermore, the District of Columbia Circuit has recently reemphasized the Supreme Court's admonition that "[t]he Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome." Ciralsky, 355 F.3d at 674 (quoting Swierkiewicz, 534 U.S. at 514) (internal quotation marks omitted). Rather, "the purpose of pleading is to facilitate a proper decision on the merits." Id. (internal quotation marks and citation omitted). Indeed, the Circuit has repeatedly "stressed that the liberal concepts of notice pleading embodied in the Federal Rules do not require the pleading of legal theories." Empagran S.A. v. F. Hoffman-LaRoche, Ltd., 388 F.3d 337, 341 (D.C. Cir. 2004) (quoting Hanson v. Hoffmann, 628 F.2d 42, 53 (D.C. Cir. 1980) (internal quotation marks omitted)); see also 12 James Wm. Moore, et al., Moore's Federal Practice § 8.04 (4th ed. 2006) (stating that "Rule 8(a)(2) does not require a claimant to set forth any legal theory justifying the relief sought on the facts alleged, but does require sufficient factual averments to show that the claimant may be entitled to some relief") (footnote omitted).
In Hanson v. Hoffmann, for example, the Circuit held that the plaintiff had stated a claim under the First Amendment even though the complaint itself "did not explicitly do so," where (1) the plaintiff had made "the basic factual allegation" that her exercise of free speech had led to her dismissal, and (2) "[a] generous reading of her present complaint . . . encompass[ed] a free speech claim." Hanson, 628 F.2d at 53. Here, as in Hanson, the plaintiff has made the "basic factual allegation" that she was suspended due to her refusal on religious grounds to take a mandatory PPD test, and "a generous reading of her present complaint" certainly encompasses a claim for religious discrimination under the DCHRA. Id. Thus, although the plaintiff's complaint could certainly have set forth her claims for both racial and religious discrimination with greater clarity, the Court finds that it is enough that the plaintiff alleged facts giving rise to an inference of religious discrimination, Am. Compl. ¶¶ 21(j)-(m), while generally stating an express claim for relief under the DCHRA, id. ¶ 25 (alleging that the defendants "have intentionally engaged in conduct violative of [the] [p]laintiff's rights as secured by the [DCHRA]"). See Atchinson, 73 F.3d at 423 (holding that "a plaintiff need not plead multiple instances of misconduct" when stating a claim under a particular statute, as long as the complaint puts the defendant "on notice of the nature and basis of [the] plaintiff's claim") (emphasis omitted). "A court may deny a motion to dismiss or for summary judgment on the basis of a legal theory never embraced by the plaintiff, as long as that theory is supported by the facts alleged and as long as the defendant is not prejudiced on the merits." Hanson, 628 F.2d at 53 n.11 (internal citations omitted). Accordingly, the Court concludes that while imperfectly pled, the plaintiff's amended complaint sufficed to put the defendants on notice regarding a claim of religious discrimination under the DCHRA. See Arent v. Shalala, 70 F.3d 610, 618 (D.C. Cir. 1995) (holding that "lack of specificity is not fatal [to a complaint] so long as the defendant is given fair notice of the plaintiff's claim," even where "[the] complaint is ambiguous on its face" as to precisely which claim the plaintiff intended to bring) (internal quotation marks and citations omitted).
The defendants further argue that "[t]he natural narrowing of claims and issues through the pretrial process"-specifically, the parties' Joint Statement of the Case and portions of the plaintiff's deposition testimony-"made [it] clear that [the] [p]laintiff was not pursuing a religious discrimination claim." Defs.' Mot. at 6; see id., Ex. A (Joint Statement of Case) at 1-2 ("Joint Statement"); id., Ex. B (excerpts of August 26, 2004 deposition of LaShawn Lemmons) ("Deposition"). The Joint Statement, which was filed by the parties prior to the initial scheduling conference in this case in accordance with Local Civil Rule 16.3, makes no mention of any claims arising from the plaintiff's religious beliefs. Joint Statement at 1-2; see also LCvR 16.3 (requiring parties to confer prior to a scheduling conference and submit to the Court a report concerning various scheduling issues likely to arise in the litigation). Moreover, it is entirely silent regarding any claim specifically related to the plaintiff's November 2003 suspension following her refusal to submit to the Hospital's annual PPD skin test.*fn17 Joint Statement at 1-2. The relevant portion of the Joint Statement states, in full:
[The] [p]laintiff is a Laboratory Technician for the Hospital. She is suing the Hospital for discrimination and retaliation under the [DCHRA] and [Section 1981]. . . . Her claims arise from her assertions that the [d]efendants retaliated and discriminated against her because of her race and her alleged protected activity of reporting OSHA violations she believed the Hospital was committing in its handling and storage of tuberculosis samples.
Id. at 1. In addition, the deposition testimony cited by the defendants purports to demonstrate that the plaintiff intended only to bring a claim for retaliation-and not for religious discrimination-in connection with her 2003 suspension.*fn18 Defs.' Sum. Judg. Mot. at 7-8; see Deposition at 208-09, 211. However, it is undisputed that neither the Joint Statement nor the plaintiff's deposition testimony contain any express statement that the plaintiff had chosen to narrow her legal claims by abandoning her cause of action for religious discrimination under the DCHRA, whether by formally amending her complaint or otherwise. See generally Joint Statement; Deposition.
It is true that the pretrial procedures set forth in the Federal Rules are intended "to disclose more precisely the basis of both claim and defense and to define more narrowly the disputed facts and issues," Kingman Park Civic Ass'n v. Williams, 348 F.3d 1033, 1040 (D.C. Cir. 2003) (quoting Conley, 355 U.S. at 47-48). However, given the well-settled "jurisprudential preference . . . for adjudication on the merits rather than on the basis of formalities," Ciralsky, 355 F.3d at 674 (internal quotation marks and citation omitted), the Court is reluctant to conclude on the record before it that the plaintiff might have abandoned or waived her religious discrimination claim by sheer implication during the discovery process. See also Swierkiewicz, 534 U.S. at 514 (stating that the purpose of the "simplified pleading system [is] to focus litigation on the merits of the claim") (citation omitted). This reluctance is particularly acute when the claimant represents, as the plaintiff does here in opposing the defendants' motion for reconsideration, that she believes that her religious discrimination claim remains alive. See Pl.'s Opp. at 6, 10. Nevertheless, the Court will examine the pertinent authority to determine whether, and under what circumstances, a claim for which fair notice has been afforded the defendants in the complaint can be simply abandoned, consciously or inadvertently, along the road of the pretrial process.
The Court begins by noting that nothing in the Federal Rules of Civil Procedure specifically provides for the abandonment of an individual legal claim through deposition testimony or joint filings setting forth a preliminary statement of the case. For example, Federal Rule of Civil Procedure 41, which allows plaintiffs to voluntarily dismiss an action without permission of the Court "by filing a stipulation of dismissal signed by all parties who have appeared in the action," Fed. R. Civ. P. 41(a)(1), is not the appropriate vehicle should a plaintiff decide to "unequivocally abandon" a particular claim out of several, Defs.' Mot. at 9. Rather, the voluntary elimination or dismissal of fewer than all of a plaintiff's claims may occur only by amendment of the complaint pursuant to Federal Rule of Civil Procedure 15. See, e.g., Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 687 (9th Cir. 2005) (stating that "withdrawals of individual claims against a given defendant are governed by [Federal Rule of Civil Procedure] 15, which addresses amendments to pleadings") (citation omitted); see also 8 James Wm. Moore, et al., Moore's Federal Practice §41.21 (4th ed. 2006) (stating that "[a] plaintiff wishing to eliminate particular claims or issues from the action should amend the complaint under Rule 15(a) rather than dismiss under Rule 41(a)").*fn19 Rule 15 motions for leave to amend must be made in writing and must "set forth with particularity the relief requested and the grounds supporting the request." 3 James Wm. Moore, et al., Moore's Federal Practice §15.17 (4th ed. 2006) (citing cases); see also Fed. R. Civ. P. 7(b)(1). In addition, under this Court's local civil rules, such motions must be accompanied by a copy of the proposed amendment. LCvR 7(i) (stating that "[a] motion for leave to file an amended pleading shall be accompanied by an original of the proposed pleading as amended"); see Gov't of Guam v. Am. President Lines, 28 F.3d 142, 150 (D.C. Cir. 1994) (stating that "[t]he normal procedure for requesting an amendment to the complaint in federal court is to file a [Rule 15] motion to amend together with the proposed amendment or new pleading") (internal quotation marks and citation omitted). The defendants do not, and cannot, argue that the plaintiff's purported abandonment of her religious discrimination claim conforms to this standard. See generally Defs.' Mot.; Defs.' Reply. Moreover, amendment of pleadings may occur as of right only until a responsive pleading has been filed. Fed. R. Civ. P. 15(a). Because the defendants responded to the plaintiff's amended complaint with an answer on May 20, 2004, the plaintiff was thereafter barred from amending her complaint except "by leave of court or by written consent of the adverse party," an additional procedural threshold that has not been satisfied in this case. Id. Accordingly, for all of these reasons, the Court cannot construe the Joint Statement or the plaintiff's deposition testimony as a formal motion for leave to amend her complaint under the Federal Rules to withdraw or dismiss her claim of religious discrimination.*fn20 See Gov't of Guam, 28 F.3d at 150 (concluding that "neither [statements made in the plaintiffs'] opposition to the motion to dismiss nor [the plaintiffs'] counsel's reference to the assertion of new legal theories contingent on future administrative action was sufficient to constitute a [Rule 15(a) motion] to amend the complaint") (citations omitted).
Although the plaintiff cannot technically withdraw or dismiss fewer than all of the claims from her complaint without availing herself of the formal Rule 15 process,*fn21 some courts do recognize the possibility that a claim might nevertheless be expressly and unilaterally abandoned during discovery if certain conditions are met. See Defs.' Mot. at 9-10 (citing White v. Schlesinger, Civ. No. 79-1017, Slip Op. at 3 (D.D.C. Dec. 5, 1979), and McDowell v. Father Flanagan's Boys' Home, Civ. No. 03-2058, 2005 WL 1006022, at *8 (E.D.N.Y. Apr. 26, 2005)). However, despite the defendants' citation to a cursory and off-hand reference in an unpublished 1979 district court opinion, the District of Columbia Circuit has never recognized, nor even discussed, the propriety of this sort of extra-procedural abandonment. Id. Furthermore, even in those circuits that have explicitly considered whether plaintiffs have abandoned their claims through events occurring during the discovery process, the conclusion that such abandonment has occurred appears to require a far clearer statement of the plaintiff's intent to cease pursuing a particular legal claim than what occurred in this case. See, e.g., Versarge v. Township of Clinton, N.J., 984 F.2d 1359, 1363 & n.1 (3d Cir. 1993) (concluding that the plaintiff had abandoned claim for monetary damages when the plaintiff's counsel, during the plaintiff's deposition, expressly stated that "[w]e've abandoned that claim"); Hailes v. Compudyne Corp., Civ. No. 2:05-54, 2007 WL 60923, at *1 n.1 (M.D. Ala. Jan. 8, 2007) (finding that plaintiff had abandoned cause of action for retaliation when "he testified in his deposition that he has no such claim"); see also Eguia v. Tompkins, 756 F.2d 1130, 1137 & n.9 (5th Cir. 1985) (rejecting the defendants' argument that the plaintiff had "waived all claims in his pleadings except the claim for denial of due process" by stating, in a motion for a protective order, that "[the] action concern[ed] . . . the plaintiff's rights to due process of law"); McGuire v. Bourbon Cmty. Hosp., Civ. No. 04-480, 2006 WL 208826, at *3 (E.D. Ky. Jan. 25, 2006) (finding no support for the "theory of 'abandonment by deposition'" and holding that "the legal issue of whether a claim has been abandoned or waived requires much more than a lay person's opinion [provided in deposition testimony]").
Indeed, in cases where abandonment has occurred, courts have almost uniformly founded such a determination on (1) an explicit and unambiguous statement by the plaintiff that a particular claim was no longer being brought or (2) factual assertions made in discovery, usually during deposition testimony, that contradict or otherwise fatally undermine the factual predicate for one or more of the plaintiff's legal claims as articulated in the complaint. See, e.g., Versarge, 984 F.2d at 1363 & n.1 (finding abandonment based on the plaintiff's express deposition testimony); Russell v. Degussa Engineered Carbons, Civ. No. C-06-93, 2007 WL 433284, at *12 (S.D. Tex. Feb. 6, 2007) (finding that plaintiff had abandoned claim when his deposition testimony contradicted factual allegations made in his complaint); Nagel v. Sykes Realty, Inc., 400 F. Supp. 2d 1198, 1203 (D.N.D. 2005) (concluding that claim against particular defendant was "abandoned and . . . [un]supported by any evidence in the record" when plaintiff did not identify that particular defendant in her deposition or in any pleadings other than the complaint).
In Cooks v. Potter, for example, the Seventh Circuit upheld the district court's conclusion that the plaintiff "had abandoned her claims of race and gender discrimination by conceding when deposed that her reassignment had not been due to her race or gender." Cooks v. Potter, 109 Fed. Appx. 810, 812 (7th Cir. 2004) (also finding that even though the plaintiff claimed that her deposition testimony was in error, "she [did] not point to any evidence in the record that could support a race or gender discrimination claim"). Here, by contrast, the plaintiff makes no such concessions. She was never expressly asked, nor did she volunteer, whether she believed that the defendants had ever discriminated her on the basis of her religion. See generally Deposition. Nor does the plaintiff make factual assertions in her deposition testimony that contradict the factual predicate set forth in her complaint. Rather, she expands upon her membership in the Congregation of Universal Wisdom, her refusal to take the PPD tests based on both religious and medical objections, and her subsequent suspension by the defendants. See id. at 181-190. While the defendants are correct that certain of the plaintiff's responses suggest that she viewed the initial requirement that she submit to the PPD test as retaliation for past harassment complaints, Defs.' Mot. at 7-8 (quoting Deposition at 208-09), neither the plaintiff's words nor the relevant legal standards foreclose the possibility that the defendants (1) retaliated against the plaintiff by declining to continue to exempt her from the PPD test and also (2) discriminated against the plaintiff by failing to accommodate her religious objection to the test, once it had been raised. See Atchinson, 73 F.3d at 423 (holding that "a plaintiff need not plead multiple instances of misconduct" when stating a claim under a particular statute, as long as the complaint puts the defendant "on notice of the nature and basis of [the] plaintiff's claim") (emphasis omitted). The deposition testimony brandished by the defendants is therefore inconclusive to demonstrate the plaintiff's abandonment of her religious discrimination claim. See Collins v. U.S. Playing Card Co., ___ F. Supp. 2d. ____, ____, Civ. No. 05-637, 2006 WL 3231309, at *11 (S.D. Ohio Nov. 6, 2006) (concluding that plaintiff's deposition testimony that defendant had not retaliated against him was not dispositive evidence that plaintiff had abandoned claim of retaliation).
Moreover, because "the District of Columbia Court of Appeals has not squarely addressed the standard by which claims of religious discrimination-particularly those such as the plaintiff's-are to be analyzed under the DCHRA," Opinion at 27; see also id. at 27-31 (discussing distinction between disparate treatment claims and failure to accommodate claims in District of Columbia law), it remains a novel issue of state law, and thus it is not for this Court to decide, see 28 U.S.C. § 1367(c)(1) (2000), what statements the plaintiff could have made in her deposition, absent an explicit declaration that she had "abandoned that claim," Versarge, 984 F.2d at 1363 n.1, that would truly constitute an abandonment of her claim of religious discrimination. See, e.g., Sims v. Halliburton Co., 185 F.3d 875, 1999 WL 495629, at *12 (10th Cir. 1999) (concluding that the plaintiff had not made factual concessions in his deposition sufficient to abandon his claim of age discrimination); Windsor v. Bethesda Gen. Hosp., 523 F.2d 891, 894 (8th Cir. 1975) (finding "no positive evidence of abandonment" of well-plead racial discrimination claims in plaintiff's deposition, particularly when resolving all inferences in favor of the plaintiff in accordance with the applicable legal standard). In any event, even assuming that the District of Columbia Circuit were to recognize the "theory of 'abandonment by deposition'" in the abstract sense, McGuire, Civ. No. 04-480, 2006 WL 208826, at *3, the Court cannot say that the statements made by the plaintiff during her deposition testimony would rise to that level. Cf. Ciralsky, 355 F.3d at 674 (noting the "jurisprudential preference . . . for adjudication on the merits rather than on the basis of formalities"). Thus, in the absence of an express and explicit indication that the plaintiff intended to leave one or more of her claims by the wayside in the course of the litigation-such as a notice to amend the complaint pursuant to Rule 15 or something equivalently unambiguous-the Court agrees with the plaintiff that "[t]he complaint controls on what issues are being presented." Id. at 6. And because the Court concludes, as discussed above, that the complaint does articulate a claim of religious discrimination under the DCHRA, the defendants' motion for reconsideration must be denied.
In evaluating the parties' respective motions for reconsideration, the Court is mindful that its discretion to modify or otherwise revisit its prior conclusions is "limited by the law of the case doctrine and subject to the caveat that, where litigants have once battled for the [C]court's decision, they should neither be required, nor without good reason permitted, to battle for it again." Judicial Watch, ___ F. Supp. 2d at ____, 2006 WL 3600329, at *7 (internal quotation marks and citation omitted). In this matter, after carefully reviewing the arguments of both sides, the Court concludes that neither party has presented any compelling reason why its May 4, 2006 Order should be disturbed. The Court therefore denies the plaintiff's motion for reconsideration of its grant of summary judgment to the defendants on the plaintiff's retaliation claim. It also denies the defendants' motion for reconsideration of its conclusion that the plaintiff's amended complaint stated a viable cause of action for religious discrimination under the DCHRA.
Furthermore, for the reasons articulated in the Court's May 4, 2006 Memorandum Opinion, the plaintiff's religious discrimination claim shall be remanded forthwith to the Superior Court of the District of Columbia.
SO ORDERED this 1st day of March, 2007.*fn22