United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE.
Rosa Arias moves to file a Third Amended Complaint in this
lawsuit. Federal Rule of Civil Procedure 15(a) provides that
leave to amend a complaint “shall be freely given when
justice so requires.” Defendant opposes Plaintiff's
Motion, arguing primarily that amendment would be futile.
Upon consideration of the briefing,  the relevant legal
authorities, and the record as a whole, the Court
GRANTS IN PART and DENIES IN
PART Plaintiff's Motion to Amend. The Court
concludes that some claims which Plaintiff requests to
include in the Third Amended Complaint fail to state a claim
for which relief may be granted. However, other claims are
not futile and should be allowed to proceed.
is a Nicaraguan native whom Defendant employed in its
Housekeeping Department from 2003 through October 6, 2017. In
June 2015, Plaintiff filed a complaint against Defendant in
the Superior Court of the District of Columbia, Civil Action
No. 2015 CA 4324 B. [Corrected] Notice of Removal, ECF No. 2,
at 1. On August 5, 2015, Defendant removed the case to the
U.S. District Court for the District of Columbia on federal
question jurisdictional grounds. Id. at 2-3. On
April 21, 2016, Plaintiff filed a Second Amended Complaint
with leave of the Court. Pl.'s 2d Am. Compl., ECF No. 31.
Some ambiguity notwithstanding, the claims of the Second
Amended Complaint may be summarized as follows: (1)
discrimination based on race, national origin, and
retaliation for a protected activity under 42 U.S.C. §
1981; (2) breach of contract in allegedly terminating
Plaintiff's employment; (3) breach of implied covenant of
good faith and fair dealing in allegedly terminating
Plaintiff's employment in bad faith; (4) wrongful
termination of at-will contract in violation of public policy
and 42 U.S.C. § 1981, pled in the alternative to Counts
Two and/or Three; (5) negligence and negligent
misrepresentation of material facts, alleging that Defendant
breached its duty of care through various employment actions
relating to the chemicals used in the workplace; (6)
aggravated assault through failure to provide personal
protective equipment (“PPE”); and (7) fraudulent
concealment of material fact concerning the health effects of
chemicals used in the course of Plaintiff's
employment. See id.
5, 2016, Defendant filed a Motion to Dismiss Plaintiff's
Second Amended Complaint, ECF No. 33, which the parties
subsequently briefed. On August 12, 2016, pursuant to an
agreement between the parties, Plaintiff filed a notice
voluntarily dismissing Count Five, containing the negligence
and negligent misrepresentation claims, and Count Seven,
containing, inter alia, the fraudulent concealment
of material fact claim. Notice of Filing Def.'s Mot. for
Sanction, ECF No. 40, at 1; Notice of Dismissal of Claims
from Pl.'s 2nd Am. Compl. 1, ECF No. 40-1, at 1. On
November 14, 2016, the Court granted in part and denied in
part Defendant's Motion to Dismiss Plaintiff's Second
Amended Complaint. Order, ECF No. 52. The Court dismissed
Count One's claims as to race and national origin
discrimination, as well as Counts Four and Six in their
entirety. Id. at 2; Mem. Op., ECF No. 53, at 6-7 n.6
(“Ms. Arias does not appear to be making an argument
that she faced discrimination based on being from Nicragua
[sic] separate and apart from discrimination based on race.
Therefore, the Court will consider only the claim of
discrimination based on race.”). Remaining are
Plaintiff's claims under Count One for retaliation in
violation of 42 U.S.C. § 1981, Count Two for breach of
contract, and Count Three for breach of implied covenant of
good faith and fair dealing. See Nov. 14, 2015
Order, ECF No. 52, at 2.
August 15, 2017, Plaintiff filed a Motion for Class
Certification. ECF No. 69. However, on March 29, 2018, the
Court denied Plaintiff's Motion for Class Certification.
March 29, 2018 Memorandum Opinion, ECF No. 88.
1, 2018, Plaintiff filed for leave to file a Third Amended
Complaint. Pl.'s Mot., ECF No. 93. Prior to Defendant
filing a response, Plaintiff filed a Notice requesting that
the Clerk of the Court strike the Third Amended Complaint
which was attached to Plaintiff's Motion and instead file
the Third Amended Complaint attached to Plaintiff's
Notice. Pl.'s Notice, ECF No. 96. The Third Amended
Complaint which was attached to Plaintiff's Notice is the
document that Defendant responded to and is the document
currently being considered by the Court. Third Amended
Complaint (“TAC”), ECF No. 96-1. Defendant has
opposed Plaintiff's Motion to Amend.
Rule 15(a) of the Federal Rules of Civil Procedure, leave to
amend a complaint “shall be freely given when justice
so requires.” Fed.R.Civ.P. 15(a); see Firestone v.
Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996).
“In the absence of any apparent or declared reason-such
as undue delay, bad faith or dilatory motive on the part of
the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment,
futility of amendment, etc.-the leave sought should, as the
rules require, be ‘freely given.”' Foman
v. Davis, 371 U.S. 178, 182 (1962).
district court has discretion to deny a motion to amend on
grounds of futility where the proposed pleading would not
survive a motion to dismiss.” In re Interbank
Funding Corp. Sec. Litigation, 629 F.3d 213, 215 (D.C.
Cir. 2010). As a result, a court's decision as to whether
to grant or deny on futility grounds a motion to amend
“is for practical purposes, identical to review of a
12(b)(6) dismissal based on the allegation in the amended
complaint.” Id. at 215-16.
the Court's ruling on Defendant's motion to dismiss
Plaintiff's Second Amended Complaint, three of
Plaintiff's claims survived, each relating to
Plaintiff's May 14, 2015 termination: (1) 42 U.S.C.
§ 1981 claim for retaliation, (2) breach of contract,
and (3) breach of implied covenant of good faith and fair
dealing. See March 29, 2018 Memorandum Opinion, ECF
No. 88, 5-6. In her Third Amended Complaint, Plaintiff
preserves her previous three claims, and brings at least nine
new claims. Under Plaintiff's requested Third Amended
Complaint, she brings claims for:
• Count 1- Race discrimination and retaliation under the
District of Columbia Human Rights Act (“DCHRA”)
for Plaintiff's May 14, 2015 termination;
• Count 2- Race discrimination and retaliation under 42
U.S.C. § 1981 for Plaintiff's May 14, 2015
termination; • Count 3- Breach of contract for
Plaintiff's May 14, 2015 termination;
• Count 4- Breach of implied covenant of good faith and
fair dealing for Plaintiff's May 14, 2015 termination;
• Count 5- Negligent termination for Plaintiff's May
14, 2015 termination;
• Count 6- Race discrimination and retaliation under the
DCHRA for Plaintiff's October 6, 2017 termination;
• Count 7- Race discrimination and retaliation under 42
U.S.C. § 1981 for Plaintiff's October 6, 2017
termination; • Count 8- Hostile work environment under
• Count 9- Breach of contract for Plaintiff's
October 6, 2017 termination;
• Count 10- Breach of implied covenant of good faith and
fair dealing for Plaintiff's October 6, 2017 termination;
• Count 11- Intentional infliction of emotional
• Count 12- Violation of overtime pay requirements under
the Fair Labor Standards Act (“FLSA”).
See generally TAC, ECF No. 96-1.
response to Plaintiff's request to again amend her
complaint, Defendant argues that permitting Plaintiff to
amend her Complaint will result in undue delay. The Court
understands Defendant's frustration given that this suit
has been pending for almost three years and that this will be
Plaintiff's third time amending her Complaint. However,
under Rule 15(a) of the Federal Rules of Civil Procedure,
leave to amend a complaint “shall be freely given when
justice so requires.” Fed.R.Civ.P. 15(a); see
Firestone, 76 F.3d at 1208. Under these circumstances,
the Court concludes that Plaintiff should be given the
opportunity to fully present her claims. However, the Court
cautions Plaintiff that, following the current requested
amendment to Plaintiff's Complaint, this case needs to
proceed through the next stages of litigation. Absent
extenuating circumstances, Plaintiff is unlikely to be
granted a fifth bite at the apple.
addition to arguing undue delay, Defendant also presents
seven reasons as to why Plaintiff's Motion to Amend is
futile. First, Defendant argues that Plaintiff's claims
for race discrimination are futile because Plaintiff cannot
establish a plausible basis for each element of the claims.
Second, Defendant argues that Plaintiff's claims for
retaliation resulting in her October 2017 termination are
futile because Plaintiff fails to establish a causal
connection between any protected activity and Plaintiff's
termination. Third, Defendant contends that Plaintiff's
hostile work environment claim is futile as she fails to meet
the basic pleading requirements. Fourth, Defendant argues
that Plaintiff's contract claims are futile because
Plaintiff was an at-will employee. Fifth, Defendant contends
that Plaintiff's tort claims are futile because they are
preempted by Workers' Compensation exclusivity. Sixth,
Defendant argues that Plaintiff's intentional infliction
of emotional distress claim is futile because it is subsumed
by her discrimination and retaliation claims. Finally,
Defendant contends that Plaintiff's overtime wage claim
is futile because her allegations lack specificity. The Court
will address each argument in turn.
Futility of Race Discrimination Claims
Defendant argues that Plaintiff's discrimination claims
must fail under Federal Rule of Civil Procedure 12(b)(6)
because Plaintiff cannot establish a plausible basis for each
of the elements. To establish a claim for discrimination
under the DCHRA and Section 1981, a plaintiff must show that
(1) she belongs to a protected class, (2) she suffered an
adverse employment action, and (3) the adverse employment
action gives rise to an inference of discrimination.
Ginger v. District of Columbia, 477 F.Supp.2d 41,
47-4, 56 (D.D.C. 2007) (setting out the standard for
discrimination under § 1981 and the DCHRA). The parties
do not dispute that Plaintiff is a member of a protected
class as she is Hispanic. Additionally, the Court concludes
that Plaintiff has sufficiently plead at least two adverse
employment actions as Plaintiff bases her claims of
discrimination on her terminations in May 2015 and October
2017. Termination constitutes an adverse employment action.
See Douglas v. Donovan, 559 F.3d 549, 554 (D.C. Cir.
2009) (explaining that termination is an
“obvious” adverse employment action); see
also Memorandum Opinion, ECF No. 53, 8.
considered the first two elements, the Court next turns to
whether or not Plaintiff has pled facts which would give rise
to an inference that discrimination led to her alleged
adverse employment actions. In her Third Amended Complaint,
Plaintiff generally alleges that she was terminated both in
May 2015 and in October 2017 on account of race. TAC, ECF No.
96-1, ¶¶ 262, 281, 322, 327, 334. Plaintiff also
provides several specific examples of this alleged racial
discrimination. Plaintiff claims that Hope Boyd, a Marriott
Assistant Manager, demanded that Plaintiff not speak Spanish
in the workplace and told Plaintiff that Spanish employees
talked too much. Id. at ¶ 55. Plaintiff also
claims that Ms. Boyd told Plaintiff that Spanish employees
complained too much about the conditions of their employment.
Id. at ¶ 148. Plaintiff further alleges that
her manager, Courtney Baron, told her that “[y]ou
people can find these kinds of jobs at another Hotel.”
Id. at ¶ 260. Plaintiff goes on to connect Ms.
Boyd and Ms. Baron to some of the decisions and warnings that
ultimately resulted in Plaintiff's October 2017
termination. See e.g., Id. at ¶¶ 188, 206,
the Court concludes that Plaintiff has pled sufficient facts
to make her claims for racial discrimination resulting in her
October 2017 termination non-futile. Based on this analysis,
Counts 6 and 7 are not futile and Plaintiff's Motion to
Amend is GRANTED insofar as these counts