UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

MARGARET FOWLER,

Plaintiff,

v.

GOVERNMENT OF THE DISTRICT OF 

COLUMBIA, et al.,

Defendants.

 Civil Action No. 18-634 (RDM)

ORDER

This matter is before the Court on Plaintiff’s motion for leave to amend. Dkt. 30. In 

particular, Plaintiff seeks to amend her complaint “to add additional facts and claims based on 

retaliation.” Id. at 1. Defendants oppose the motion on the ground that, in their view, 

“Plaintiff’s proposed amendments are futile.” Dkt. 31 at 1. Because the Court “should freely

give leave” to amend “when justice so requires,” Fed. R. Civ. P. 15(a)(2), and because the Court 

is unpersuaded that the proposed amendment is futile, the Court will grant Plaintiff leave to file a 

second amended complaint. 

In support of their contention that amendment would be futile, Defendants offer three 

arguments—none is persuasive. First, Defendants argue that Plaintiff’s failure to allege when 

she received a right-to-sue letter is “fatal to her retaliation claim.” Dkt. 31 at 3. That is 

incorrect. “The 90-day statutory period is not a jurisdictional prerequisite to filing suit, but rather 

operates as a statute of limitations, and is thus an affirmative defense that can be raised in a preanswer dispositive motion.” Ruiz v. Vilsack, 763 F. Supp. 2d 168, 170 (D.D.C. 2011). As a 

result, it is the defendant—and not the plaintiff—who “‘bears the burden of pleading and proving 
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it,’” and “[i]t is only after the defendant meets this burden that the burden shifts to the plaintiff to 

plead and prove ‘facts supporting equitable avoidance of the defense.’” Nichols v. Vilsack, No. 

13-cv-01502, 2015 WL 9581799, at *5 (D.D.C. Dec. 30, 2015) (quoting Bowden v. United 

States, 106 F.3d 433, 437 (D.C. Cir. 1997)). This allocation of burdens does not preclude a 

defendant from ever raising the defense in a pre-answer motion. But it may do so only “when 

the facts that give rise to the defense are clear from the face of the complaint.” Smith-Haynie v. 

District of Columbia, 155 F.3d 575, 578 (D.C. Cir. 1998). Accordingly, the fact that the 

proposed second amended complaint is silent on the issue does not doom Plaintiff’s claim; it 

dooms Defendants’ pre-answer motion.

Second, Defendants argue that “the proposed amendments do not demonstrate the 

necessary causal connection between any alleged protected activity and adverse action.” Dkt. 31 

at 3. Specifically, they maintain that “Plaintiff has not pled any causal link between her 

protected activity and her proposed removal” because more than sixteen months occurred 

between her filing of this lawsuit (the alleged protected activity), and her proposed removal in 

July 2019 (the alleged retaliatory act). Id. Defendants are correct that cases treating “mere 

temporal proximity between an employer’s knowledge of protected activity and an adverse 

employment action as sufficient evidence of causality . . . hold that the temporal proximity must 

be ‘very close.’” Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (citation omitted). 

They are incorrect, however, that the sufficiency of a complaint should be judged through the 

lens of what evidence might ultimately suffice to withstand a motion for summary judgment or 

to prevail at trial. See Teliska v. Napolitano, 826 F. Supp. 2d 94, 100 (D.D.C. 2011) (noting that 

a “plaintiff alleging retaliation faces a low hurdle at the motion to dismiss stage” and collecting 

cases). Unlike at the summary judgment stage, to survive a motion to dismiss—or a claim of 
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futility—a complaint need include “only enough facts to [nudge the] claim to relief . . . across the 

line from conceivable to plausible.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). 

Read as a whole, the Court is convinced that Plaintiff’s proposed second amended complaint 

clears that modest hurdle. 

Finally, Defendants argue that leave to amend should be denied because the proposed 

amendments would not cure purported deficiencies in Plaintiff’s other claims—i.e., her age 

discrimination and hostile work environment claims. See Dkt. 31 at 5–6. But that argument is 

beside the point. Plaintiff need not “cure” those purported deficiencies in order to amend her 

complaint to add a new claim. 

It is, accordingly, hereby ORDERED that Plaintiff’s motion for leave to amend, Dkt. 30, 

is GRANTED, and Plaintiff’s second amended complaint, Dkt. 30-2, is DEEMED FILED. It is

further ORDERED that Defendants’ motion to dismiss, Dkt. 24, is hereby DENIED as MOOT. 

It is further ORDERED that Defendants shall answer or otherwise respond to Plaintiff’s second 

amended complaint on or before February 27, 2020.

SO ORDERED.

/s/ Randolph D. Moss 

RANDOLPH D. MOSS 

United States District Judge

Date: February 5, 2020