UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

) VALERIE JOHNS ON-P ARK S, ) ) P laintif f, )

) v. ) Civil Action No. 09-1492 (R LW) ) D.C. CHARTERED HEALTH PLAN, ) ) Defendan t. ) ) MEMORAN DUM OP INION I. Introduction an d Backgroun d Pl a in ti f f V a le rie J ohnson-Parks commence d this act io n a g a in s t D

. C. Ch a r te r e d H e a lt

h Plan under the A merica

ns with Disabiliti es Ac t of 1990 (“A DA”) , 42 U.S.C § 12101 et seq . Pl.’s Am. Compl. [Dkt. # 12]. Acc ording to the amende d complaint, Plaintiff suffe red from a back injury and had worke d as a nurse for Def endant, for a time from her home, until she was fired. Am. Compl. ¶¶ 14–41. Plaintiff asser ts four ADA claims: disparate trea tment, a failure to acc ommodate,
reta liation, and hostile work environment

. Id

. ¶¶ 45–84. The Court, per J udg e Rosemary M. C o l l y er , partially dismiss ed this case , on May 25, 2010, concluding that Plaintiff failed to state a reta liation claim upon which relief could be g rante d. See Johnson-Park s v. D.C. Chartered Health Plan , 713 F. Supp. 2d 39, 46 (D.D .C. 2010). 1

The Court rea soned that althoug h Plaintiff had identified reta liation as a basis for discrimination in her filings with the Equal Opportunity Employ ment Commi ssion ( “EEOC” ), the

This judge rende rs her decision on this motion beca use it has been transfe rre d to her by consent. 1 See Mem. Op. [Dkt. # 30]

.protec ted activity in which Plaintiff eng ag ed that resulted in the alleg ed reta liation differ ed betwee n

that identified in EEOC filings and that id en t i fi ed i n the amende d complaint. Id

. The Court there fore conclude d that Plaintiff had not administratively exhausted the prec ise ret al i ati on claim prese nted here

. Id. Plaintiff now moves for rec onsideration of that partial dismiss al, see Pl.’s Mot. for Reconsidera tion [Dkt. # 27], arg uing that when liberally i nterpre ted and considere d in light of

new evidenc e produce d during discovery , Plaintiff’s EEOC filings do contain the same alleg ations of reta liation that form t h e b as i s o f her reta liation claim in the amende d complaint. Def endant opposes, arg uing that Plaintiff’s motion is untimely , unduly prejudicia l if g rante d, and unsupported. See Def .’s Opp’n [Dkt. # 28]. After re consideration, the motion wil l be g rante d. II. Legal Stand ard An interlocutory

order such as the C ourt’s partial dismiss al “may be re vised at any time befor e the entry of judgme nt adjudicating all the claims and all the parti es ’ ri gh t s and liabiliti es. ” F E D . R. C I V . P. 54(b). “[R] elief upon rec onsideration of an interlocutory decision pursuant to Rule 54(b) is available ‘as justice require s.’” Estate of Botvin ex r el

. E l lis v. Islamic Republic of Iran , Civ. No. 05-220, 2011 WL 1097450, at *2 (D. D. C

. M ar . 2 5, 2011) (quoting Childers v. Slat er , 197 F.R.D. 18 5 , 1 9 0 (D.D.C. 2000)). “‘A s justice require s’ i ndicates concre te considerations of whether the court ‘has patently misunderstood a party , has made a decision outside the adver sarial issues prese nted to the [c] ourt by the parties, has made an err or not of rea soning, but of appre hension, or wher e a controlling or signific ant chang e in the law or fac ts [has occur red] since the submissi on of the issue to the court.’” Id. (quoting Cobell v. Norton , 224 F.R.D. 266, 272 (D.D.C. 2004)) (alter ation in orig inal).

-2-T h ere fore , “[i] n g ener al, a court will g rant a motion for rec onsideration of an

interlocutory order only when the movant demonstrates: ‘(1) an intervening chang e in the law; (2) the discovery of new evidenc e not previously available ; or (3) a clea r err or in the fi rs t o rder.’” Zeigler v. Potter , 555 F. Supp. 2d 126, 129 (D.D.C. 2008) ( quoting Keystone Tobacc o Co., Inc. v. U.S. T obacco Co., 217 F.R.D. 235, 237 (D.D.C. 2003)). Ho we v er, the court’s discretion to g rant

a Rule 54(b) motion is “limited by the law of the case doctrine and ‘subject to the cave at that, wher e litigants have once battled for the court’s decision, they should neither be require d, nor without g ood

rea son permitted, to battle for it ag ain.’” Judicial W atch v. Dep’ t of the Army , 466 F. Supp. 2d 112, 123 (D.D.C. 2006) (quoting Singh v. George W ash. Univ. , 383 F. Supp. 2d 99, 101 (D.D.C. 2005)). III. Analysi s The Court dismiss ed Plaintiff’s reta liation claim for failure to exhaust administrative

reme dies beca

use the Court conclude d that Plaintiff had not pursued befor e the EEOC the same reta liation claim a dvance d in this case . I n her I ntake Questionnaire filed with the EEOC, Plaintiff al l ege d d iscriminatory reta liation “for a complaint on Kar en Morris,” her supervisor. See Def

. ’s Mot. to Dismiss [Dkt. # 13], [Ex

. 2-A] I ntake Questionnaire at 3

. Howeve r in her amende d complaint, Plaintiff complains of discriminatory reta liation for reque sting a rea so nable

acc ommodation, i.e. , to be permit ted to work from home. See Am. Compl. ¶¶ 65–75; JohnsonParks , 713 F. Supp. 2d at 46. The Court thus rea soned that “[w]hi le plaintiff’s I ntake Questionnaire i d en t i fi ed reta liation as a basis for discrimination, the associate d protec ted activity in her EEOC filing is not the same as that identified in the amende d complaint.” Johnson-Park s , 713 F. Supp. 2d
at 46. The Court conclude d “that the reta liation claim pled was not administratively exhausted and, there fore , it cannot be maintaine d here .” Id.

-3-Plaintiff’s motion for rec onsideration of the Court’s ruling is tim ely and g ranting it would not unduly prejudice Def endant. On rec onsideration, the Court conclude s that it err ed in not considering cer

tain statements in Plain t i ff ’s charg e that show that she did exhaust the specific
reta liation c laim a dvance d in this case —a conclusion that is buttre ssed by new e vidence produce d during discovery . Plaintiff’s reta liation claim will therefor e be r einstated.

A. The Motion is Both T im ely and Not Undu ly P rej udi cial Def endant arg ues that Plaintiff’s motion is “bela ted” and that g ranting it “would be akin to permitting a post-discovery amendment to the Complaint,” contra ry to the Court’s order that all motions to amend pleading s be filed by Aug ust 5, 2010. Def .’s Opp’n at 3. De fe n d ant also arg ues undue pr ejudice. Id. at 2–3. These arg uments are unpersua sive.

First, the motion is not belated. A district court may rec onsider an interlocutory order “at any time ” befor e final judgme nt of all claims for all parties is enter ed in a case . F E D . R. C I V . P. 54(b) (empha sis added)

. I t follows, then, that a motion for such rec onsideration may also be made
at any time within rea son. Discover y closed in this case on Fe bruar y 7, 2011. See Minute Orde r J an. 21, 2011. The instant motion, which is based in part on documents produce d during discovery , was filed only four da y s later. On this re cord, Plaintiff’s motion is rea sonably timely

. Second, g ranting the motion would not be a kin to permitting further amendment to the amende d complaint. I t would simply rein s t at e exis ting portions of the amende d complaint. Def endant cites no authority to t h e co n t rar y . To the extent that Plaintiff points to documents produce d during discovery , those documents mere ly bolster Plaintiff’s arg ument that an exhausted
reta liation claim is alre ady well pled in the complaint. Those documents do not themselves become

-4-p ar t o f the complaint simply by virtue of the Court’s consideration of them on this mo t i o n t o

rec onsider. Finally , even if the Court wer e to construe rec onsideration of a dismiss al as an amendment to a complaint, if justice require s such re consideration, just ice similarly require s such amendment. See F E D . R. C I V . P. 15(a) (2) ( permitting la te amendme nts of pleading s “whe n justice require s”). Def

endant is n o t prejudice d by the possibili ty of a short re- opening of discovery , if neede d. B. Plaintiff ’s Ret aliation Clai m wi ll be Reinstated

“B efor e bring ing suit in fede ral court, AD A

. . . plaintiffs

. . . must exhaust their administrative reme dies by filing an EEOC char g e and g iving t h at age n cy a chanc e to act on it.” Ellis v. George town Univ. Hosp. , 631 F. Supp. 2d 71, 75 (D.D.C. 2009) (citing 42 U.S.C. § 12117(a) ). The issue on reco n s i d er at i o n is whether Plaintiff included a claim of reta liation for reque sting and, for a time rec eivi ng , a work-f rom-home acc ommodation for her disability , as opposed to a c laim of reta liation only for making complaints about her supe rvisor. “[T] he law does not hold an employ ee to the use of mag ic words to make out a proper discrimination char g e.” Maryland v. Sodexho, Inc. , 4 7 4 F. S u p p . 2d 160, 162 (D.D.C. 2007). I n s t ea d , a plaintiff must only “ale rt the EEOC and the char g ed employ er with the nature o f t h e alleg ed wrong doing.” Id. When examining whether the EEOC and the char g ed employ er have been adequately aler

ted, the Court considers, inter alia , whether the claim is “‘like or rea sonably rela ted
to the alleg ations of the char g e and g rowing out of such alleg ations,’” Park v. Howard Univ. , 71 F.3d 904, 907 (D.C. Cir. 1995) (quot ing Cheek v. W

. and S. Life Ins. Co. , 31 F.3d 497, 500 (7th Cir. 1994)), and “ar ise[s] from ‘t h e a d mi n is tr ative investiga tion that can rea sonably be expected to follow

-5-the cha

rg e of discr imination,’” id. (quoting Chisholm v. U.S. Postal Serv. , 665 F.2d 482, 491 (4th Cir. 1981)). Her e, on the documents c h a r a c te r iz e d b y D efe ndant as the “under ly ing administrative Charg e” that wer e sent from the EEOC to Def endant, the box labeled “Retaliation” was not chec ked. See Def .’s Mot. to Dismiss [Dkt. # 13], [Ex

. 1-A] N otice of Charg e of D iscrimination. Def endant there fore arg ues t hat retaliation was not included in the cha rg e to the EEOC. See Def .’s Opp’n at 4–5. But Def

endant also conciliatorily rec og nizes that “[i] n making its decision in this case , . . . the Court looked bey ond the fa ce of the cha rg e itself to the informa l I ntake Que stionnaire used by the EEOC as a f

irst step in its admini strative filing proce ss.” Id. at 5; see also Johnson-Park s , 713 F. Supp. 2d at 45–46. The Court de clines Def endant’ s sug g estion that it should now take a narr ower view of the “cha

rg e” in this ca se. L ooking a g ain to Plaintiff’s I ntake Que stionnaire, the Court notes that Plaintiff did chec k the box to indicate that she was alleg ing reta liation and she s p ec i fi ed t h at such reta liation al l eg edly occur

red beca use she made a “complaint on Kar en Morris.” I ntake Questionnaire at 3

. Def endant arg ues that “this Court c orre ctly held that as the scope of Count I I I , alleg ing reta liation, exceede d the scope of the administrative Charg e, it was not administratively exhausted.” Def .’s Opp’n at 5. Howeve r, when Plaintiff explained her claim more full y el s ew h er e on the I ntake Qu es t i o n n ai re , she alleg ed that Ms. Morris “did not want me to work from home.” I ntake Questionnaire at 3. I nstead, Ms. Morris reque sted “that I come in the o ff i ce o r b e terminated” ; purposef ully convey ed “wr ong information” to another doc to r “ to blame me for an unsafe discharg e”

o f a patient as a prete x t for discriminatory termination; “tre ated me with disrespec t during case rounds” beca

us e s h e d is a

p p r o v e d o f Pl aintiff working from home; and continually pressure d Plaintiff

-6-to cea se working from h o m e “u n t i l I was terminated.” Id. at 3, 6. I n short, Plaintiff’s employ er

“wa nted me to re turn to working in the office or to be ter minated.” Id. at 3. I n light of the liberal interpre tation of the char g e commanded by Park , 71 F.3d at 907, it is clea r that these alleg ations g o bey ond a claim ostensibly limit ed to reta liation for making complaints about Ms. Morris; they rea ch a claim of retaliation for Plaintiff’s r equesting (and f or a time rec eiving ) a work-f

rom-home ac commodation. The reta liation claim alleg ed in this suit is

rea sonably rela ted to the alleg ations of the char g e and g rows out of such alleg ations, and the ensuing administrative investig ation could be r easona bly expected to addr ess it. This conclusion is buttressed b y n ew documents disclosed during discovery that wer e part of the EEOC’s investiga tive file. They support t he theory that Plaintiff was discriminatorily terminated beca

use her employ er “did not w ant me to ha ve work at home acc ommodations”—and they show that the EEOC was prese nted with that theory during its investiga tion. See Pl.’s Mot. for Reconsider ation [Dkt. # 27], [Ex

. A-1] EEOC I nvestig ative File at FOI A-0011. As Def endant

corr ectly points out, Def.’s Opp’ n at 4, it is true that a “cour t c annot allow liberal interpre tation of

an administrative char g e to permit a litigant to by pass the

. . . administrative proce ss.” Park , 71 F.3d
at 907. But the Court’s interpre tat ion here does not serve to g rant such permission. The Court

mere ly rec og nizes that P laintiff did prese nt the same reta liation claim alleg ed in this case in its char g e to the EEOC. This conclusion does not permit Plaintiff to by pass the administrative proce ss, but rec og nizes that she did, in fact, par ticipate in it. IV. Conclusion B e c a u s e Pl a in ti f f ’s motion for rec onsideration is timely , beca use g ranting that mo ti o n would not be unduly prejudicia l to Def endant, b ec ause the Court err oneously failed to consider

-7-information included in Plaintiff’ s ch arge indicating that she had administratively exhausted the

reta liation claim she alleg es in this case , and beca use that co n cl u s ion is buttressed by new documentar

y evidenc e produce d during discovery , Plaintiff’s motion for rec onsideration [Dkt. # 27] will be g rante d. Acc ording ly , Plaintiff’s reta liation claim, Count I I I of the amende d complaint, will be re instated. A memora liz ing O rder acc ompanies this Memorandum Opinion.

Date: Aug ust 31, 2011 /s/ ROSEMARY M. COL L YER United States District J udg e

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