United States District Court, D. Columbia.
For BETTY CLAYTON, Plaintiff: Levi S. Zaslow, LEAD ATTORNEY, Timothy Francis Maloney, JOSEPH, GREENWALD & LAAKE, P.A., Greenbelt, MD.
For DISTRICT OF COLUMBIA, Defendant: Chad Alan Naso, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL, DISTRICT OF COLUMBIA, Washington, DC.
RICHARD W. ROBERTS, Chief United States District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff Betty Clayton brought suit against the District of Columbia (" District" ) and the District of Columbia National Guard (" DCNG" ), alleging that the District violated D.C. law by retaliating against her for making protected disclosures and for engaging in other protected conduct, and that the defendants violated the United States Constitution by depriving her of her property interest in her employment without due process. Clayton moves under Federal Rule of Civil Procedure 15 for leave to amend her complaint. Because the District does not oppose Clayton's motion to amend, Clayton's motion for leave to amend her complaint will be granted as to the claims against the District, except as to those claims in Counts Three, Four, and Five that reassert claims previously dismissed. Clayton's motion for leave to amend her complaint to add Title VII claims against the DCNG will be granted as those claims are sufficiently pled, but her motion to reallege claims against the DCNG in Counts Four and Five that have been previously dismissed will be denied.
The background of this case is discussed more fully in Clayton v. District of Columbia, 931 F.Supp.2d 192 (D.D.C. 2013). Briefly, Clayton alleges that she was the Director of the D.C. Government Operations Division of the District of Columbia National Guard. Id. at 197. Her complaint avers that " [t]he D.C. Government Operations Division is simultaneously a Directorate within Joint Force [Headquarters], DC National Guard and an agency of the Government of the District of Columbia." Id. (internal quotation marks omitted). However, while the DCNG is a federal entity, id. at 200, and " the Commanding General of the DCNG . . . is a federal employee of the Department of Defense[,]" id. at 197, the District views " the Director of the Government Operations Division [as] a District employee who is subject to the personnel rules, regulations, laws and the policy of the District[,]" id. at 198 (internal quotation marks omitted).
Clayton alleges that while serving as the Director, she reported several incidents of unlawful conduct within the DCNG, such as fraud, waste, abuse, and sexual harassment allegations. Id. at 197-98.
When Clayton was appointed, the Director of the D.C. Government Operations Division was a Career Service position. Id. at 197. However, the position was later reclassified as an at-will, Management Supervisory Service (" MSS" ) position  under D.C. Code § 1-609.58(a). See id. at 199. Shortly after Clayton's position was reclassifed an MSS position, Clayton received notice that she was being terminated without cause. Id.
Clayton filed a five-count amended complaint against the District and the DCNG. " Although Clayton's amended complaint appears to allege all five counts against the District and the DCNG," Clayton later asserted that her claims against the DCNG were pled in Counts Four and Five. Id. at 197 n.2. Count Four alleged " that the District and the DCNG violated Clayton's constitutional due process rights by depriving Clayton of her protected property interest in her employment and right to seek review of any termination of her employment with the Office of Employee Appeals ('OEA') without due process, and seeks money damages for the constitutional violation." Id. at 199. " Count Five [sought] a declaratory judgment that D.C. Code § 1-609.58(a) is unconstitutional on its face and as applied." Id.
The DCNG moved under Federal Rule of Civil Procedure 12(b)(1) to dismiss the counts against it. The motion was granted on the ground that the claims against the DCNG in Counts Four and Five ...