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Cole v. Boeing Co.

United States District Court, District of Columbia

November 1, 2012

Deborah R. COLE, Plaintiff,
v.
The BOEING COMPANY, Defendant.

Page 48

Arinderjit Dhali, Dhali PLLC, Washington, DC, for Plaintiff.

Arinderjit Dhali, Dhali PLLC, Denise Elizabeth Giraudo, Michael J. Murphy, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Washington, DC, for Defendant.

MEMORANDUM OPINION

ROSEMARY M. COLLYER, District Judge.

Fired from her position with The Boeing Company (" Boeing" ) in the Commonwealth of Virginia, Deborah R. Cole filed suit in the Superior Court of the District of Columbia on July 18, 2011, complaining of gender discrimination and retaliation in the District of Columbia and Virginia in violation of the D.C. Human Rights Act (" DCHRA" ), D.C.Code § 2-1401.01 et seq. The complaint made no mention of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., although Ms. Cole had filed a charge with the Equal Employment Opportunity Commission (" EEOC" ) and received a right-to-sue letter. Boeing removed the case to federal court and on March 1, 2012, this Court dismissed all but one aspect of the complaint, in the main because the DCHRA does not cover alleged actions in Virginia. See Cole v. Boeing Co., 845 F.Supp.2d 277 (D.D.C.2012). Only Ms. Cole's claim for retaliation under the DCHRA based on facts occurring in the District of Columbia remained.

Ms. Cole filed a motion for reconsideration, Dkt. 17, which this Court denied. See Order [Dkt. 20]. She also filed a Motion to Amend as of Right, or in the Alternative,

Page 49

Motion for Leave to File an Amended Complaint, Dkt. 14, which has been fully briefed and is pending decision. In essence, Ms. Cole seeks to add federal law, Title VII, as a statutory ground for her complaint and thus encompass the Virginia actions. Ms. Cole's motion is proper only to the extent that the Court denied Boeing's motion to dismiss as to the DCHRA— i.e., Ms. Cole may amend the complaint to assert a Title VII claim based on her claim of retaliation arising from events that took place in the District of Columbia. The Court will deny the Motion to Amend/Correct Complaint in all other respects.

I. FACTS

The proposed amended complaint, Exhibit to Dkt. 14, has been pared to 408 paragraphs from 418 after the Court's partial grant of Boeing's motion to dismiss. Ms. Cole now seeks to assert three counts: Count I, discrimination based on sex in violation of Title VII on disparate treatment and hostile work environment theories; Count II, retaliation in violation of Title VII; and Count III, retaliation in violation of the DCHRA. The 385 paragraphs of factual allegations are almost identical to those in the original complaint and fall into three groups, now labeled " parts" instead of " phases." Part A, paragraphs 46-122, details Ms. Cole's " employment with Boeing while working as a contractor at the Washington, D.C. Navy Yard facility for the federal agency the National Geospatial-Intelligence Agency [" NGA" ]." Proposed Am. Compl. ¶ 2. Part B, paragraphs 123-61, includes allegations that occurred while Ms. Cole was " working as a contractor at the NGA Virginia Facility." Id. ¶ 4. Part C, paragraphs 162-385, involves events that occurred while Ms. Cole was stationed at Boeing's facility in Springfield, Virginia. See id. ¶ 5. All three counts are written as applying to all of Ms. Cole's factual allegations. [1]

II. AMENDMENT AS A MATTER OF COURSE UNDER FEDERAL RULE OF CIVIL PROCEDURE 15(A)(1)

Ms. Cole first seeks to file an amended complaint as of right under Federal Rule of Civil Procedure 15(a)(1). Citing Nattah v. Bush, 605 F.3d 1052, 1056 (D.C.Cir.2010), she argues that Boeing filed a motion to dismiss, not an answer, so that she has the right to file an amended complaint under Federal Rule of Civil Procedure 15(a)(1). Mem. Supp. Pl. Mot. Am. [Dkt. 14] (" Pl Mem." ) at 4-5.

Boeing argues that Ms. Cole's motion is untimely as an amendment of right under Rule 15(a)(1). See Def.'s Opp'n Pl.'s Mot. Amend. [Dkt. 15] (" Def. Mem." ) at 4-5. It argues that Rule 15(a) was amended in 2009, before the complaint was filed in this matter, to clarify that " a party may amend its pleading once as a matter of course within (A) 21 days after serving it; or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after ...


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