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Ekemezie v. CVS RX Services, Inc.

United States District Court, District of Columbia

January 25, 2019

BLESSING EKEMEZIE, Plaintiff,
v.
CVS RX SERVICES, INC., Defendant.

          MEMORANDUM OPINION AND ORDER

          TIMOTHY J. KELLY UNITED STATES DISTRICT JUDGE

         Plaintiff Blessing Ekemezie commenced this action in February 2017 after she was terminated from her position as a pharmacist for CVS Pharmacy, Inc., bringing claims of discrimination under both federal and District of Columbia law. On October 15, 2018, Plaintiff filed a motion for leave to file a Second Amended Complaint. ECF No. 42. As relevant here, the proposed amended complaint would supplement the existing claims against Defendant CVS Rx Services, Inc., with additional facts, as well as add several new claims under federal law, the District of Columbia Human Rights Act (DCHRA), and both District of Columbia and Virginia common law. See ECF No. 42-2 (“2d Am. Compl.”). Defendant opposed Plaintiff's motion in part, challenging various aspects of the proposed amended complaint as futile. See ECF No. 45 (“Opp'n”).[1] The Court will address each of these challenges separately, and for the reasons explained below, Plaintiff's motion will be granted in part and denied in part.

         I. Legal Standard

         Under Federal Rule of Civil Procedure 15(a)(2), when a plaintiff seeks leave to file an amended complaint, courts “should freely give leave when justice so requires.” Nonetheless, a court may deny such a request when, among other limited circumstances, it determines that the amendment would be “futil[e].” Foman v. Davis, 371 U.S. 178, 182 (1962). An amendment is deemed futile “if the proposed claim would not survive a motion to dismiss.” Williams v. Lew, 819 F.3d 466, 471 (D.C. Cir 2016) (quoting James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir 1996)).

         As relevant here, a defendant may move to dismiss a claim under Federal Rule of Civil Procedure 12(b)(1) for “lack of subject-matter jurisdiction” and under Rule 12(b)(6) for “failure to state a claim upon which relief can be granted.” In reviewing a motion under Rule 12(b)(1), a court need not accept unsupported factual inferences or legal conclusions, but it should “review the complaint liberally, granting the plaintiff the benefit of all inferences that can be derived from the facts alleged.” Cole v. Boeing Co., 845 F.Supp.2d 277, 282-83 (D.D.C. 2012) (quoting Barr v. Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004)). Similarly, “[t]o survive a motion to dismiss [under Rule 12(b)(6)], a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Xia v. Tillerson, 865 F.3d 643, 649-50 (D.C. Cir. 2017) (internal quotation marks omitted) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 650 (quoting Iqbal, 556 U.S. at 678).

         II. Analysis

         A. National Origin Discrimination under 42 U.S.C. § 1981 (Counts I and II)[2]

         Defendant objects to Plaintiff's inclusion of references to her national origin in Counts I and II, which bring discrimination and hostile-work-environment claims under 42 U.S.C. § 1981. See Opp'n at 3-4; 2d Am. Compl. ¶¶ 152-63 (Count I), 164-70 (Count II). Defendant argues that claims of discrimination based on national origin are not viable under § 1981. Opp'n at 3-4. Plaintiff clarified in her reply, however, that she makes no attempt to claim discrimination based on her national origin. See ECF No. 47 (“Reply”) at 7-8. Rather, she explains that Counts I and II allege discrimination based on her race and ethnicity and that she only included her nation of origin-Nigeria-“to clarify where her African/Ibo race originates.” Id. at 7. Given that express disclaimer, the Court will not strip her proposed amended complaint of any mention of her national origin, and it will grant her motion to amend as to Counts I and II.

         B. Age Discrimination under Title VII (Count III)

         Defendant next objects to Plaintiff's addition of Count III for disparate treatment and harassment on the basis of age under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., because that statute does not prohibit age discrimination. Plaintiff conceded in response that the inclusion of Count III was an error. See Reply at 8. Accordingly, Plaintiff's motion will be denied with respect to Count III.

         C. Compensatory Damages under ADEA (Counts IV and V)

         Defendant also objects to Plaintiff's inclusion of references to pain and suffering and emotional distress in Counts IV and V, which set forth claims under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623 et seq. Though Defendant “does not oppose the factual amplification of these counts, ” it objects to her alleged “request for ‘compensatory' damages for ‘physical and emotional injuries, including emotional distress, and mental anguish, humiliation, embarrassment, loss of self-esteem, and anxiety, '” on the ground that ADEA only permits recovery of lost wages. See Opp'n at 5 (quoting 2d Am. Compl. ¶¶ 193, 203).

         The Court agrees that the law is clear on this question. “Monetary remedies under the ADEA are limited to back wages . . . and liquidated damages.” Comm'r v. Schleier, 515 U.S. 323, 336 (1995); see also Younger v. D.C. Public Schools, 320 F.Supp.3d 158, 162 (D.D.C. 2018) (“Compensatory damages in cases alleging discrimination because of age can only include backpay and frontpay and cannot include pain and suffering.”). But Plaintiff does not claim any particular type of damages in Count IV and Count V, as Defendant insists. She merely repeats the same requests for “damages, ” 2d Am. Compl. ¶ 192, and “compensatory damages, ” Id. ¶ 201, that she included in her operative amended complaint. To be sure, she adds factual allegations that she has suffered a variety of intangible injuries-which Defendant concedes her right to include, Opp'n at 5-but she never specifically demands damages that are foreclosed under ADEA. Therefore, her amendments are not futile. Accordingly, Plaintiff's motion will be granted with respect to her amendments to Counts IV and V.

         D. DCHRA ...


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