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 th e Court on Plaintiff ’s motion for leave to amend. Dkt. 30. In particular, Plaintiff se eks to amend her complaint “to add additional facts and claims ba sed 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 free ly 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 C ourt will gra nt Plaintiff lea ve 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-t o -sue lett er 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 apreanswer 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 proving2

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. 1 3

- 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 , Defendant s 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 corre ct 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 C ty
. Sch

. Di st. 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 stag e” and collecting cases)

. Unlike at the summary judgment stage, to survive a motion to dismi ss
— or a claim of3

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 t hat Plaintiff ’ s proposed second amended complaint clears th at 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, he reby ORDERED that Plaintiff ’ s m otion 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 d ismiss, 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 , 20 20