UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_____________________________
)
BETTY CLAYTON, )
)
Plaintiff, )
)
v. ) Civil Action No. 11-1889 (RWR)
)
DISTRICT OF COLUMBIA, et al., )
)
Defendants. )
_____________________________ )
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
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motion to reallege claims against the DCNG in Counts Four and
Five that have been previously dismissed will be denied.
BACKGROUND
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.
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When Clayton was appointed, the Director of the D.C.
Government Operations Division was a Career Service position.1
Id. at 197. However, the position was later reclassified as an
at-will, Management Supervisory Service (“MSS”) position2 under
D.C. Code § 1-609.58(a).3 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
1
“A Career Service employee can be terminated only for
cause, and such terminations are subject to appeal to the
District’s Office of Employee Appeals (‘OEA’).” Clayton, 931 F.
Supp. 2d at 197 n.4 (internal quotation marks omitted).
2
A “management employee” is “any person whose functions
include responsibility for project management and supervision of
staff and the achievement of the project’s overall goals and
objectives.” D.C. Code § 1-614.11.
3
D.C. Code § 1-609.58(a) provides:
Persons currently holding appointments to positions in
the Career Service who meet the definition of
“management employee” as defined in § 1-614.11(5) shall
be appointed to the Management Supervisory Service
unless the employee declines the appointment. Persons
declining appointment shall have priority for
appointment to the Career Service if a vacant position
for which they qualify is available within the agency
and is acceptable to the employee. If no such vacant
position is available, a 30-day separation notice shall
be issued to the employee, who shall be entitled to
severance pay in the manner provided by § 1-624.09.
D.C. Code § 1-609.58.
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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 were barred by sovereign immunity. Id. at 199-201.
The District also filed a motion to dismiss under Rule
12(b)(6). The motion was granted as to Count Three because
Clayton failed to state a claim of wrongful termination. Id. at
204-05. The motion was granted as to Count Four because Clayton
did not plead sufficient facts to establish that she was denied
due process when the Director position was reclassified as an MSS
position, and because she did not have a property interest in her
job at the time she was terminated. Id. at 205-06. Finally, the
motion was granted as to Clayton’s facial challenge to D.C. Code
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§ 1-609.58(a) in Count Five for failure to state a due process
claim.4 Id. at 207.
Clayton now moves to amend her complaint again. Clayton’s
proposed second amended complaint realleges the same facts raised
in her first amended complaint and reasserts the same five claims
against the same defendants as she did in her first amended
complaint.5 The proposed amended complaint also adds two new
claims alleging retaliation and sex discrimination, in violation
of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42
U.S.C. § 2000e et seq., presumably against both the DCNG and the
District.
The District does not oppose Clayton’s motion to amend the
complaint. However, the DCNG argues that Clayton’s motion should
be denied as to the claims against the DCNG because the proposed
amended complaint reasserts claims the court has already
dismissed, and thus granting leave to amend would be futile.6
4
Clayton’s as-applied constitutional challenge survived.
Id. at 205 n.12.
5
Clayton does, however, make a superficial edit in
paragraphs 90 and 97: she now explicitly requests “all available
statutory and equitable relief” for Counts One and Two. Compare
Am. Compl. ¶¶ 90, 97 (requesting “such other and further relief
this Honorable Court determines just and equitable”), with
Proposed 2d Am. Compl. ¶¶ 90, 97 (requesting “such other and
further relief this Honorable Court determines just and
equitable, including all available statutory and equitable
relief” (emphasis added)).
6
The DCNG is no longer a party in this action and might
not have been expected to respond to Clayton’s motion to file a
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The DCNG further argues that Clayton’s claims under Title VII are
also futile because she is not an employee, applicant for
employment, or former employee of the DCNG and is unprotected by
Title VII.
DISCUSSION
After the time to amend her complaint as a matter of course
has expired, a plaintiff may amend her complaint “only with the
opposing party’s written consent or the court’s leave.” Fed. R.
Civ. P. 15(a)(2). “[L]eave to amend should be freely given
unless there is a good reason, such as futility, to the
contrary.” Willoughby v. Potomac Elec. Power Co., 100 F.3d 999,
1003 (D.C. Cir. 1996) (citing Foman v. Davis, 371 U.S. 178, 182
(1962)). Accordingly, “a court should ‘determine the propriety
of amendment on a case by case basis, using a generous
standard[.]’” Commodore-Mensah v. Delta Air Lines, Inc., 842 F.
second amended complaint. See 67A C.J.S. Parties § 86 (“After
dismissal, a party has no right to submit motions or objections
relative to matters in the case.”); cf. Motion Practice, 9-80
(David F. Herr et al., eds., 5th Ed. Supp. 2012) (“If a motion
seeks leave to amend to name additional parties, those parties
are not entitled to notice and they have no absolute right to
participate in the motion hearing until they are formally added
to the litigation through a granted amendment. . . . [T]hey have
no standing under Rule 15 to object.”). However, because the
DCNG was previously a party to the suit and could have filed a
motion to intervene to oppose further amendment, its opposition
has been considered. See Fed. R. Civ. P. 24(b); see e.g.,
Perkumpulan Investor Crisis Ctr. Dressel--WBG v. Wong, No. C09-
1786-JCC, 2013 WL 1192626, at *5 (W.D. Wash. March 22, 2013)
(considering a proposed defendant’s objections “given that he
could have filed a motion to intervene for the limited purpose of
opposing Plaintiff’s motion”).
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Supp. 2d 50, 52 (D.D.C. 2012) (quoting Harris v. Sec’y, U.S.
Dep’t of Veterans Affairs, 126 F.3d 339, 344 (D.C. Cir. 1997)).
“Futile amendments ‘restate[] the same facts as the original
complaint in different terms, reassert[] a claim on which the
court previously ruled, fail[] to state a legal theory or could
not withstand a motion to dismiss.’” Saint-Jean v. District of
Columbia, 844 F. Supp. 2d 16, 20 (D.D.C. 2012) (quoting Pietsch
v. McKissack & McKissack, 677 F. Supp. 2d 325, 328 (D.D.C.
2010)); see also Hettinga v. United States, 677 F.3d 471, 480
(D.C. Cir. 2012).
A party can move to dismiss a claim for failure to state a
claim upon which relief can be granted. Fed. R. Civ. P.
12(b)(6). To survive a motion to dismiss under Rule 12(b)(6),
the factual allegations stated in a plaintiff’s complaint “must
be enough to raise a right to relief above the speculative
level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
The complaint must be construed in the light most favorable to
the plaintiff and “the court must assume the truth of all well-
pleaded allegations.” Warren v. District of Columbia, 353 F.3d
36, 39 (D.C. Cir. 2004).
The defendant bears the burden of demonstrating that a
plaintiff’s motion to file an amended complaint should be denied.
Afram v. United Food & Commercial Workers Unions & Participating
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Employers Health & Welfare Fund, Civil Action No. 12-1389 (RWR),
2013 WL 3974096, at *1 (D.D.C. Aug. 5, 2013).
The DCNG argues that any attempt by Clayton to revive her
claims against the DCNG that were previously dismissed should be
denied. Clayton’s claims against the DCNG in Counts Four and
Five of her amended complaint were dismissed because they were
barred by sovereign immunity. In her proposed second amended
complaint, Clayton again alleges these claims but does not
provide additional argument or support to establish that this
court has subject matter jurisdiction over Counts Four and Five
against the DCNG. See Nat’l Wrestling Coaches Ass’n v. Dep’t of
Educ., 366 F.3d 930, 945 (D.C. Cir. 2004). Because these claims
have already been dismissed, Clayton’s motion to reallege Counts
Four and Five against the DCNG will be denied.
Similarly, Clayton’s motion attempts to revive her claims
against the District that were previously dismissed. Clayton’s
wrongful termination and due process claims, as well as her claim
for a declaratory judgment that D.C. Code § 1.609-58 is facially
unconstitutional, were all dismissed for failure to state a
claim. However, Clayton’s amended complaint does not add any new
factual allegations to remedy these shortcomings. Accordingly,
because these claims have already been dismissed, Clayton’s
motion to reallege Counts Three and Four and the facial
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constitutional challenge in Count Five against the District will
be denied.
The DCNG also argues that allowing Clayton to amend her
complaint to add new Title VII claims against it would be futile
because the DCNG was not Clayton’s employer when the allegedly
discriminatory conduct occurred.
Title VII prohibits “an employer” from discriminating
against “any individual with respect to [her] compensation,
terms, conditions, or privileges of employment” on the basis of
sex. 42 U.S.C. § 2000e-2(a)(1). Section 704(a) of Title VII
also makes it unlawful “for an employer to discriminate against
any of his employees or applicants for employment . . . , because
[s]he has opposed any practice made an unlawful employment
practice by this subchapter, or because [s]he has made a charge,
testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing.” 42 U.S.C. § 2000e-3(a).
Finally, Title VII also protects federal government “employees or
applicants for employment . . . from any discrimination based on
race, color, religion, sex, or national origin.” 42 U.S.C.
§ 2000e-16(a). While individuals without a direct employment
relationship with the federal agency are not protected by Section
2000e-16, Spirides v. Reinhardt, 613 F.2d 826, 829–30 (D.C. Cir.
1979) (explaining that the protection in § 2000e-16(a) extends
only to an employee, former employee, or applicant for
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employment), an employee can have joint employers for the purpose
of Title VII, see, e.g., Harris v. Attorney General of the U.S.,
657 F. Supp. 2d 1 (D.D.C. 2009). To determine the employment
status of the plaintiff, the court must look to “traditional
agency law principles.” Id. at 9 (quoting Nationwide Mut. Ins.
Co. v. Darden, 503 U.S. 318, 323 (1992)). For a single employer,
the court should examine “the extent of the employer’s right to
control the ‘means and manner’ of the worker’s performance.”
Spirides, 613 F.2d at 831. If the plaintiff could be a joint
employee, the court looks to “whether defendant ‘retained for
itself sufficient control of the terms and conditions of
employment of the employees who are employed by the other
employer.’” Harris, 657 F. Supp. 2d at 9 (quoting NLRB v.
Browning-Ferris Indus. of Pa., Inc, 691 F.2d 1117, 1123 (3d Cir.
1982)). The plaintiff’s employment status is not determined by
who provided the employee’s paycheck, or administered the
employee’s benefits. Id. at 12-13.
The DCNG fails to carry its burden of proving that it would
be futile to allow Clayton to amend her complaint by adding Title
VII claims. While Clayton must have been an employee of the DCNG
to sue the DCNG under Title VII, the DCNG fails to demonstrate
that Clayton’s proposed second amended complaint does not allege
sufficient facts to show that Clayton was either an employee of
DCNG or a joint employee of the District and the DCNG.
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Plaintiff’s proposed amended complaint sufficiently pleads
that the DCNG maintained some control over both the means and
manner as well as the terms and conditions of Clayton’s
employment, thus making relief plausible. For example, Clayton
alleges that Colonel Ronald Stamps of the DCNG was involved in
hiring Clayton, Proposed 2d Am. Compl. ¶ 7, General Schwartz of
the DCNG completed Clayton’s performance evaluations, id. ¶ 10,
and Clayton reported to both General Schwartz and D.C. agency
officials during her employment, id. ¶ 13. In addition, Clayton
alleges that “DC Government Operations is simultaneously a
Directorate within Joint Force Head Quarters, DC National Guard
and an agency of the Government of the District of Columbia.”
Id. ¶ 9. Clayton’s proposed amended complaint also alleges that
General Schwartz, as the head of the DCNG, has “supervisory
authority” over D.C. employees of the DCNG, id. ¶ 84, and can
“participate in the hiring process and confer on disciplinary
actions,” id. ¶ 83. Finally she alleges that General Schwartz
has “independent authority to initiate remedial or disciplinary
measures against Government Operations Division Personnel.” Id.
¶ 84. Thus, because Clayton has amply pled that the DCNG
maintained control over Clayton’s employment, she has
sufficiently pled facts that permit her to sue the DCNG under
Title VII. Therefore, Clayton’s motion to add two Title VII
claims will be granted.
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CONCLUSION AND ORDER
The District does not oppose Clayton’s motion for leave to
amend the complaint, and Clayton has sufficiently pled grounds
for her retaliation and discrimination claims under Title VII
against the DCNG. However, Counts Three, Four, and Five reassert
claims that were previously dismissed against the District, and
Counts Four and Five reassert claims that were previously
dismissed against the DCNG. Accordingly, it is hereby
ORDERED that Clayton’s motion [40] for leave to file a
second amended complaint be, and hereby is, GRANTED IN PART and
DENIED IN PART. Clayton’s motion to amend is granted except as
to her claims in Counts Three and Four, and her claim against the
DCNG and her facial constitutional challenge in Count Five. The
Clerk is directed to file as the second amended complaint the
attachment to Clayton’s motion for leave to amend her complaint
[40-3]. It is further
ORDERED that the Clerk reinstate the DCNG as a defendant in
this matter.
SIGNED this 21st day of November, 2013.
/s/
RICHARD W. ROBERTS
Chief Judge