United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
TIMOTHY J. KELLY UNITED STATES DISTRICT JUDGE
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”). 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
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
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.
National Origin Discrimination under 42 U.S.C. § 1981
(Counts I and II)
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.
Age Discrimination under Title VII (Count III)
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.
Compensatory Damages under ADEA (Counts IV and V)
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).
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.