The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
I. Introduction and Background
Plaintiff Valerie Johnson-Parks commenced this action against D.C. Chartered Health Plan under the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C § 12101 et seq. Pl.'s Am. Compl. [Dkt. # 12]. According to the amended complaint, Plaintiff suffered from a back injury and had worked as a nurse for Defendant, for a time from her home, until she was fired. Am. Compl. ¶¶ 14--41. Plaintiff asserts four ADA claims: disparate treatment, a failure to accommodate, retaliation, and hostile work environment. Id. ¶¶ 45--84. The Court, per Judge Rosemary M. Collyer, partially dismissed this case, on May 25, 2010, concluding that Plaintiff failed to state a retaliation claim upon which relief could be granted. See Johnson-Parks v. D.C. Chartered Health Plan, 713 F. Supp. 2d 39, 46 (D.D.C. 2010).*fn1
The Court reasoned that although Plaintiff had identified retaliation as a basis for discrimination in her filings with the Equal Opportunity Employment Commission ("EEOC"), the protected activity in which Plaintiff engaged that resulted in the alleged retaliation differed between that identified in EEOC filings and that identified in the amended complaint. Id. The Court therefore concluded that Plaintiff had not administratively exhausted the precise retaliation claim presented here. Id. Plaintiff now moves for reconsideration of that partial dismissal, see Pl.'s Mot. for Reconsideration [Dkt. # 27], arguing that when liberally interpreted and considered in light of new evidence produced during discovery, Plaintiff's EEOC filings do contain the same allegations of retaliation that form the basis of her retaliation claim in the amended complaint. Defendant opposes, arguing that Plaintiff's motion is untimely, unduly prejudicial if granted, and unsupported. See Def.'s Opp'n [Dkt. # 28]. After reconsideration, the motion will be granted.
An interlocutory order such as the Court's partial dismissal "may be revised at any time before the entry of judgment adjudicating all the claims and all the parties' rights and liabilities." FED. R. CIV. P. 54(b).
"[R]elief upon reconsideration of an interlocutory decision pursuant to Rule 54(b) is available 'as justice requires.'" Estate of Botvin ex rel. Ellis v. Islamic Republic of Iran, Civ. No. 05-220, 2011 WL 1097450, at *2 (D.D.C. Mar. 25, 2011) (quoting Childers v. Slater, 197 F.R.D. 185, 190 (D.D.C. 2000)). "'As justice requires' indicates concrete considerations of whether the court 'has patently misunderstood a party, has made a decision outside the adversarial issues presented to the [c]court by the parties, has made an error not of reasoning, but of apprehension, or where a controlling or significant change in the law or facts [has occurred] since the submission of the issue to the court.'" Id. (quoting Cobell v. Norton, 224 F.R.D. 266, 272 (D.D.C. 2004)) (alteration in original).
Therefore, "[i]n general, a court will grant a motion for reconsideration of an interlocutory order only when the movant demonstrates: '(1) an intervening change in the law; (2) the discovery of new evidence not previously available; or (3) a clear error in the first order.'" Zeigler v. Potter, 555 F. Supp. 2d 126, 129 (D.D.C. 2008) (quoting Keystone Tobacco Co., Inc. v. U.S. Tobacco Co., 217 F.R.D. 235, 237 (D.D.C. 2003)). However, the court's discretion to grant a Rule 54(b) motion is "limited by the law of the case doctrine and 'subject to the caveat 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.'" Judicial Watch v. Dep't of the Army, 466 F. Supp. 2d 112, 123 (D.D.C. 2006) (quoting Singh v. George Wash. Univ., 383 F. Supp. 2d 99, 101 (D.D.C. 2005)).
The Court dismissed Plaintiff's retaliation claim for failure to exhaust administrative remedies because the Court concluded that Plaintiff had not pursued before the EEOC the same retaliation claim advanced in this case. In her Intake Questionnaire filed with the EEOC, Plaintiff alleged discriminatory retaliation "for a complaint on Karen Morris," her supervisor. See Def.'s Mot. to Dismiss [Dkt. # 13], [Ex. 2-A] Intake Questionnaire at 3. However in her amended complaint, Plaintiff complains of discriminatory retaliation for requesting a reasonable accommodation, i.e., to be permitted to work from home. See Am. Compl. ¶¶ 65--75; Johnson-Parks, 713 F. Supp. 2d at 46. The Court thus reasoned that "[w]hile plaintiff's Intake Questionnaire identified retaliation as a basis for discrimination, the associated protected activity in her EEOC filing is not the same as that identified in the amended complaint." Johnson-Parks, 713 F. Supp. 2d at 46. The Court concluded "that the retaliation claim pled was not administratively exhausted and, therefore, it cannot be maintained here." Id.
Plaintiff's motion for reconsideration of the Court's ruling is timely and granting it would not unduly prejudice Defendant. On reconsideration, the Court concludes that it erred in not considering certain statements in Plaintiff's charge that show that she did exhaust the specific retaliation claim advanced in this case-a conclusion that is buttressed by new evidence produced during discovery. Plaintiff's retaliation claim will therefore be reinstated.
A. The Motion is Both Timely and Not Unduly Prejudicial
Defendant argues that Plaintiff's motion is "belated" and that granting it "would be akin to permitting a post-discovery amendment to the Complaint," contrary to the Court's order that all motions to amend pleadings be filed by August 5, 2010. Def.'s Opp'n at 3. Defendant also argues undue prejudice. Id. at 2--3. These arguments are unpersuasive.
First, the motion is not belated. A district court may reconsider an interlocutory order "at any time" before final judgment of all claims for all parties is entered in a case. FED. R. CIV. P. 54(b) (emphasis added). It follows, then, that a motion for such reconsideration may also be made at any time within reason. Discovery closed in this case on February 7, 2011. See Minute Order Jan. 21, 2011. The instant motion, which is based in part on documents ...