The opinion of the court was delivered by: Robert L. Wilkins United States District Judge
Presently before the Court is "Plaintiff's Second Motion for Leave of Court to Amend Complaint to Add Additional Basis for Relief." *fn1 (Doc. 23.) For the reasons set forth below, Plaintiff's motion is hereby GRANTED.
In the present action Plaintiff alleges unlawful termination and retaliation, on the basis of race and national origin, by his former employer the District of Columbia Department of Transportation (DCDOT). In the original complaint, Plaintiff asserted claims pursuant to Title VII. (Doc. 1.) In the proposed amended complaint, Plaintiff seeks to add a Fifth Amendment claim styled "Deprivation of Protected Liberty Interest Without Due Process of Law Based on Defamatory Statements." (See Doc. 23-1.)
The facts that gave rise to Plaintiff's lawsuit began with an investigation by the DCDOT Office of Inspector General, over alleged corruption by Plaintiff involving government contracts. Ultimately, the Inspector General's office was unable to substantiate the allegations. Several months later, Plaintiff, who is a Nigerian civil engineer, testified on behalf of a co-worker involved in an EEO investigation. According to Plaintiff, shortly thereafter, Al Shakeri (an Iranian supervisor) began retaliating against Plaintiff for assisting the co-worker. Specifically, Shakeri verbally accused Plaintiff of corruption, taking kickbacks, and involvement in criminal activity. (Doc. 23-1 ¶ 24.) Shakeri's pursuit of these charges ultimately culminated in an investigation by the DCDOT's Office of Integrity and Workforce Relations, which issued a report that was "circulated within management." (Id. ¶¶ 1, 12-13.) According to Plaintiff, this July 2, 2008, report accused Plaintiff of corruption, taking kickbacks and engaging in criminal activities for personal gain. (Id. ¶¶ 1,14.) On the same day of the report, Plaintiff received a "for Cause" termination letter. (Id. ¶ 14.) Prior to receiving the letter, he was unaware of the second investigation and he was never afforded an opportunity to rebut any of the allegations. (Id. ¶ 13.) After Plaintiff's termination, Shakeri replaced Plaintiff with an Iranian born employee whom Shakeri had repeatedly favored. (Id. ¶¶ 9, 15.)
According to Plaintiff, the defamatory allegations "imposed a highly injurious stigma on [his] reputation within his workplace community, which led to his summary removal." (Id. ¶ 24.) Furthermore, DCDOT's "conduct" prevented Plaintiff from finding comparable employment for more than a year and "interfered with his ability to obtain government contracts" with the District of Columbia. (Id. ¶¶ 18, 27.)
Although the deadline for amending the pleadings has passed, (see Minute Order entered 6/3/2010), Plaintiff may amend his complaint with consent of the DCDOT. In the absence of such consent, the Federal Rules of Civil Procedure provide that Plaintiff may amend his complaint with leave of court and leave should be "freely" given "when justice so requires."
Fed. R. Civ. P 15(a)(2). Specifically, leave to amend is appropriate "[i]n the absence of any apparent or declared reason-such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc." Atchinson v. District of Columbia, 73 F.3d 418, 425-26 (D.C. Cir. 1996) (citations omitted). In the instant case, Defendant raises no issues of undue delay or untoward conduct, rather Defendant argues that Plaintiff's proposed addition of the Fifth Amendment due process claim would be futile.
This Court "may deny a motion to amend a complaint as 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). When analyzing a motion to dismiss, this Court must view the facts in the light most favorable to Plaintiff and dismiss the proposed Fifth Amendment claim only if Plaintiff can prove no set of facts in support of his claim which would entitle him to relief. See Doe v. DOJ, 753 F.2d 1092, 1102 (D.C. Cir. 1985) (citation omitted).
Defendant raises two arguments to support its contention that Plaintiff's Fifth Amendment claim is futile. First, Defendant argues Plaintiff cannot establish that the charges against him were false. According to Defendant, Plaintiff admittedly failed to list his wholly owned corporation on a disclosure form, which requires District of Columbia employees to disclose any connections with entities that conduct business with the city. Thus, whether or not Plaintiff failed to do so purposefully or inadvertently, the charges supporting his termination were true, asserts DCDOT.
Inasmuch as this Court must, at this juncture, consider the facts in the light most favorable to Plaintiff, Defendant's first argument is unpersuasive. Even if Plaintiff did fail to disclose his business interests, such a failure does not necessarily amount to corruption and criminal activity. Because this Court must assume that DCDOT did in fact make the alleged defamatory statements regarding corruption and criminal activity, Plaintiff's failure to disclose his business interests does not automatically foreclose his liberty interest due process claim.
When pursuing such a claim, Plaintiff may proceed under one of two theories: (1) a reputation-plus" theory; or (2) a "stigma or disability" theory. O'Donnell v. Barry, 148 F.3d 1126, 1139-40 (D.C. Cir. 1998). Under the reputation-plus theory, Plaintiff must show an ...