UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
KAREN L. KIMMEL, )
)
Plaintiff, )
)
v. ) Civil Action No. 07-797 (RWR)
)
GALLAUDET UNIVERSITY, )
)
Defendant. )
______________________________)
MEMORANDUM ORDER
Plaintiff Karen Kimmel brings this action against Gallaudet
University alleging retaliation in violation of Title VI of the
Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq; retaliation,
disability discrimination and hostile work environment in
violation of the District of Columbia Human Rights Act (“DCHRA”),
§ 2-1401.01 et seq.; and tortious interference with prospective
business relations. Kimmel moves to amend her complaint to add a
claim of constructive discharge in violation of the DCHRA, which
Gallaudet opposes on the basis that the claim arises from facts
that are separate in time and type from the facts alleged in her
original complaint. Because Kimmel’s constructive discharge
claim arises out of the same alleged pattern of harassment that
forms the basis of Kimmel’s hostile work environment claim,
Kimmel’s motion to amend her complaint will be granted.
“Federal Rule of Civil Procedure 15(c) governs amendments to
a complaint that are made after the time for filing the complaint
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has expired.” Henderson v. Williams, Civil Action No. 05-1966
(RWR), 2007 WL 778937, at *2 (D.D.C. Mar. 12, 2007). In
pertinent part, Rule 15(c) states “that ‘[a]n amendment to a
pleading relates back to the date of the original pleading when
. . . the amendment asserts a claim or defense that arose out of
the conduct, transaction, or occurrence set out –- or attempted
to be set out –- in the original pleading.’” Palmer v.
Homecomings Fin. LLC, 677 F. Supp. 2d 233, 237 (D.D.C. 2010)
(alteration in original) (quoting Fed. R. Civ. P. 15(c)(1)).
“Typically, amendments that build on previously alleged
facts relate back.” Jones v. Greenspan, 445 F. Supp. 2d 53, 56
(D.D.C. 2006) (citing United States v. Hick, 283 F.3d 380, 388
(D.C. Cir. 2002)). But, not only must an amendment share some
elements and facts in common with the original claim, the
original complaint must also “‘adequately notif[y] the defendants
of the basis for liability the plaintiffs [will] later advance in
the amended complaint.’” Jones v. Bernanke, 557 F.3d 670, 674-75
(D.C. Cir. 2009) (quoting Meijer, Inc. v. Biovail Corp., 533 F.3d
857, 866 (D.C. Cir. 2008)). Ultimately, “[s]o long as the
original and amended [complaints] state claims that are tied to a
common core of operative facts, relation back will be in order.”
Mayle v. Felix, 545 U.S. 644, 664 (2005). Relation back,
however, “is improper when the amended claim ‘asserts a new
ground for relief supported by facts that differ in both time and
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type from those the original pleading set forth.’” Bernanke, 557
F.3d at 674 (quoting Mayle, 545 U.S. at 650).
Gallaudet contends that the facts alleged in Kimmel’s
amended complaint are unrelated in time and type to those set
forth in the original complaint and that it had no notice that
the events that occurred during Kimmel’s sabbatical would form
the basis of a constructive discharge claim. (Def.’s Opp’n to
Pl.’s Mot. for Leave to File Amended Compl. (“Def.’s Opp’n”) at
3, 5.) If the original complaint put Gallauget on notice of
anything, it was that Kimmel feard that Gallaudet’s behavior was
aimed at drumming her straight out of the university. (See,
e.g., Compl. ¶ 15 (“It is clear that the actions of Gallaudet
employees and agents . . . have been designed to harass
Dr. Kimmel to the point that she will leave the University[.]”),
¶ 21 (“The falsehoods spread by Gallaudet . . . were also
designed to harass her in order to force her to leave
Gaulladet.”), ¶ 26 (“[Her] smaller than usual raise . . . [was]
intended to force Dr. Kimmel to leave Gallaudet[.]”).) With
notice of a potential constructive discharge claim not being an
issue, the only question is whether the amendment “arose of the
conduct . . . set out . . . in the original [complaint.]” Fed.
R. Civ. P. 15(c)(1)(B).
Kimmel’s original complaint alleges that Gallaudet subjected
her to harassment, which created “a pervasive atmosphere of
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disrespect, ridicule, [and] insult” and amounted to a hostile
work environment. (Compl. ¶¶ 47-48.) Specifically, it claims
that in order to force Kimmel to leave, Gallaudet falsely accused
her of coercing professors to change math grades and of
supporting grade changes for athletes. (Id. ¶¶ 20, 21, 25.) In
the amended complaint, Kimmel asserts that she went on sabbatical
to escape the hostile work environment and that, during her
sabbatical, Gallaudet facilitated false allegations against her
in a town hall it held to allow students and employees to attack
her reputation, character and actions. (Amend. Compl. ¶¶ 27-29.)
Kimmel also asserts that Gallaudet faculty informed her that she
was not welcome to return from sabbatical, and that Gallaudet
employees “formed a group . . . , which had as one of its goals
the removal of Plaintiff from Gallaudet.” (Id. ¶ 30.)
Ultimately, Kimmel’s amended complaint alleges that the same
harassment that created the hostile work environment intensified
to such a degree that it resulted in her resignation. The newly
asserted claim is a direct extension of the very ongoing conduct
that Kimmel claimed created a retaliatory hostile work
environment.
Gallaudet also argues that it would be prejudiced by
Kimmel’s “untimely attempt to amend her [c]omplaint” because
Kimmel waited over two years after her resignation to seek to
amend her complaint. (Def.’s Opp’n at 5.) Gallaudet’s sole
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substantiation for its claim of prejudice is to repeat its
discredited absence-of-notice argument, and to speculate that
some percipient witnesses to events reflected in Kimmel’s new
claim no longer work for Gallaudet. However, Gallaudet fails to
specify who they are, or allege or show that they cannot be
located or are otherwise unavailable. Moreover, discovery has
not yet concluded and the parties are not foreclosed from
engaging in discovery related to Kimmel’s newly asserted claim.
Because the amended complaint asserts a claim that arises
out of the same type of conduct alleged in the original
complaint, Gallaudet has been on notice of the newly alleged
claim, and Gallaudet has not amply demonstrated how it would be
prejudiced by the amendment, Kimmel’s amendment would relate back
in time to the original complaint, and her motion to amend her
complaint will be granted. Accordingly, it is hereby
ORDERED that plaintiff’s motion [20] for leave to file an
amended complaint be, and hereby is, GRANTED. The Clerk shall
docket as the Amended Complaint the exhibit attached to the
motion.
SIGNED this 25th day of June, 2010.
________/s/_________________
RICHARD W. ROBERTS
United States District Judge