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Smith v. Asia

February 20, 2009


The opinion of the court was delivered by: Richard W. Roberts United States District Judge


Plaintiff Andrei Smith brings this action against his former employer, defendant Café Asia, for sexual harassment and discrimination based on sexual orientation in violation of the D.C. Human Rights Act ("DCHRA"), and for assault and battery. Smith has moved to amend his complaint by adding several defendants and counts of sex discrimination and negligent supervision, and to extend and enlarge discovery. Because Smith has shown good cause to amend, and defendant has not shown that Smith's amended complaint is futile, but not all of the discovery sought is warranted, Smith's motion will be granted in part and denied in part.


Smith filed this action against Café Asia, his previous employer, alleging claims of sexual orientation discrimination in violation of the DCHRA and assault and battery. (Compl. at ¶¶ 28-35.) Smith's allegations were based upon incidents that occurred during his employment as a host and waiter with Café Asia between September 18, 2005 and the end of 2006. (Id. at ¶¶ 5-6.) Smith alleged that he has been subjected to verbal and physical assaults by other employees, that Case Asia's management was made aware of the assaults, and that Café Asia's management did not remedy the situation. (Id. at ¶¶ 2-27.)

Smith has moved to add six individual defendants, to add the corporate defendant that operates through the trade name Café Asia, and to add two additional counts: one count of sex discrimination in violation of the DCHRA against each defendant, and one count of negligent supervision. He also seeks to extend the discovery period and to be allowed to take 13 more depositions, including those of the seven added defendants. Café Asia opposes Smith's motion, arguing among other things*fn1 that Smith's proposed amendment is futile, and that Smith's motion to file an amended complaint was untimely and that it would unjustifiably delay discovery and trial.


A plaintiff is allowed to amend his complaint after an answer has been filed "only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Fed. R. Civ. P. 15(a)(2). "If 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 v. Davis, 371 U.S. 178, 182 (1962). Undue delay, undue prejudice to the defendant, or futility of the proposed amendment(s) are factors that may warrant denying leave to amend. Atchinson v. Dist. of Columbia, 73 F.3d 418, 425 (D.C. Cir. 1996). The defendant has the burden of showing why leave to file an amended complaint should not be granted. LaPrade v. Abramson, Civil Action No. 97-10 (RWR), 2006 WL 3469532, at *3 (D.D.C. Nov. 29, 2006). Courts generally consider the relation of the proposed amended complaint to the original complaint, favoring proposed complaints that do not "radically alter the scope and nature of the case." Miss. Ass'n of Coops. v. Farmers Home Admin., 139 F.R.D. 542, 544 (D.D.C. 1991); see also Childers v. Mineta, 205 F.R.D. 29, 32-33 (D.D.C. 2001).


Defendant argues that Smith's proposed amended complaint would be futile because the individual defendants cannot be held liable for discrimination under the DCHRA.*fn2 An amendment is futile "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). A claim will not survive a motion to dismiss if it fails to plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007). A complaint must contain factual allegations that "'possess enough heft to sho[w] that the pleader is entitled to relief.'" Amore v. Accor. N. Am., Inc., 529 F. Supp. 2d 85, 94-95 (D.D.C. 2008) (quoting Twombly, 127 S.Ct. at 1966). In addition, the court does not have to accept asserted inferences or conclusory allegations that are unsupported by the facts set forth in the complaint. Kowal v. MCI Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). The decision to grant or deny leave to amend is committed to the sound discretion of the district court. Foman, 371 U.S. at 182; James Madison, 82 F.3d at 1099.

The DCHRA provides, in relevant part:

(a) General. -- It shall be an unlawful discriminatory practice to do any of the following acts, wholly or partially for a discriminatory reason based upon the actual or perceived . . . sex [or] sexual orientation . . . of any individual:

(1) By an employer. -- To . . . discriminate against any individual, with respect to his compensation, terms, conditions, or privileges of employment . . .[.]

D.C. Code § 2-1402.11. The DCHRA defines "employer" as "any person who, for compensation, employs an individual . . . [and] any person acting in the interest of such employer, directly or indirectly . . . ." D.C. Code § 2-1401.02.

Liability under the DCHRA may be imposed against individuals in certain circumstances when they meet the definition of "employer." Purcell v. Thomas, 928 A.2d 699 (D.C. 2007) held that the "text and purpose of the DCHRA" and case precedent do not "preclude a claim against individual and supervisory employees involved in committing the allegedly discriminatory conduct[.]" Id. at 715 (citing Wallace v. Skadden Arps, Slate, Meagher & Flom, 715 A.2d 873 (D.C. 1998); Mitchell v. Nat'l R.R. Passenger Corp., 407 F. Supp. 2d 213, 241 (D.D.C. 2005); and Macintosh v. Bldg. Owners & Mgrs.' Ass'n, 355 F. Supp. 2d 223 (D.D.C. 2005)). Although defendant argues that none of the additional defendants Smith seeks to add can be classified as employers, the amended complaint alleges that the additional individual defendants were managers who perpetrated, who witnessed and failed to stop, or to whom Smith complained without success about, the discriminatory acts. Smith argues moreover that the facts alleged regarding these supervisory management employees reflect that they acted in the interest of their employer and that they could be individually ...

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