1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ROBIN E. WALLACE, Plaintiff,

v. ALLIEDBARTON SECURITY SERVICES, LLC Defendant

. Civil Action No. 14-203 (CKK)

MEMORANDUM OPINION (June 1, 2015) Plaintiff Robin E. Wallace file d suit on February 12, 2014, aga inst her employer Defendant AlliedBarton Security Services, LLC, alleging discrimination and retaliation on the basis of race, gender, and protected activity in violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Defendant filed an Answer and the Court issued a Scheduling Order setting May 8, 2014, as the date by which Plai ntiff was required to file any amended pleadings and August 8, 2014, as the date for completin g discovery. The parties subsequently filed two joint mo tions for extension of time to c omplete discovery which the Court granted, extending the deadline fo r completing discovery to Oct ober 10, 2014. See ECF Nos. [19] & [21]. Two months after the completion of discovery and seven months after the deadline for amending pleadings, Plaintiff filed a Motion for Leave to File First Amended Complaint. See ECF No [28]. Defendant filed an Oppos ition to Plaintiff’s Motion, ECF No. [29], and Plaintiff filed a Reply, ECF No. [30]. As Plainti ff raised several new arguments in her Reply, the Court ordered Defendant to file a sur-reply, ECF No. [34], addressing several specific issues. Having received all of the parties’ briefing, Pla intiff’s Motion is now ripe fo r review.2 I. LEGAL STANDARD Plaintiff moves for leave to file an Amended Complaint pursuant to Federal Rule of Civil Procedure 15, which provides th at leave to amend should be free ly granted “when justice so requires.” Fed. R. Civ. P. 15(a) . However, since Plaintiff so ught to amend her Complaint seven months after the Court-ordered deadline for filing amended plea dings, the more stringent Rule 16 “good cause” standard governs the Court’s evaluation of Plainti ff’s Motion. See Fed. R. Civ. P. 16(b); Lurie v. Mid–Atlantic Permanente Medical Grp., P.C., 589 F.Supp.2d 21, 23 (D.D.C. 2008) (relying on decisions from numero us circuit courts holding that Rule 16 applies to motions for leave to amend a pleading after a scheduling order deadline has passed); Robinson v. The Detroit News, Inc. , 211 F. Supp.2d 101, 114 (D.D.C. 2002) (“Because the plaintiff filed her proposed motion to amend after the date specified in the court’s order, the court applies the more rigorous for ‘good cause’ Rule 16 standard to the plaintiff’s amendment. ”). “To hold otherwise would allow Rule 16’ s standards to be ‘short circuite d’ by those of Rule 15 and wou ld allow for parties to disregard scheduling orders, which would ‘undermine the court’s ability to control its docket, disrupt the agreed-upon course of the litigation, and reward th e indolent and the cavalier.’ ” Lurie , 589 F.Supp.2d at 23 (quoting Leary v. Daeschner, 349 F.3d 888, 906 (6th Cir. 2003)). To show “good cause” under Federal Rule of Civil Procedure 16, “the mov ing party must show both diligence and a lack of prejudice to the opposing parties.” In re Papst Licensing GmbH & Co. KG Litigation , 762 F.Supp.2d 56, 59 (D.D.C. 2011); see also Robinson, 211 F.Supp.2d at 114 (motion to amend denied due to undue delay); Leary, 349 F.3d at 906 (to determine whether good cause has been shown, a court must consider the issue of prejudice); Coleman v. Quaker Oats Co. , 232 F.3d 1271, 1294 (9th Cir. 2000) (“This standard ‘primarily cons iders the diligence of the party3 seeking the amendment.’ ” (quoting Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607– 09 (9th Cir. 1992))).
II. DISCUSSION In her original Complaint, Plaintiff brought four causes of act ion: race and sex discrimination in violation of Title VII (Count I) and 42 U.S.C . § 1981 (Count III), and retaliation in violation of Title VII (Count II) and § 1981 (Count IV). Pl aintiff’s race and sex discrimination claims arose out of Plaintiff’s alleged demotion from her Distr ict Manager position in April 2013. Plaintiff’s retaliation claims a rose out of the hostile work en vironment Plaintiff alleges she and her spouse were subjected to followi ng Plaintiff’s complaint to Def endant in May 2013 that “her rights under the Civil Rights Act had been violated.” Compl. ¶ 15. Plaintiff now seeks to amend her Complaint to include additiona l claims of racial discrimination and retaliation under § 1981 and racial and gend er discrimination, as well as retaliation, under the District of Columbia Human Rights Act (“ DCHRA”) for defendant’s failure to promote her to the position of District Manager for the Nort hern Virginia Re gion in April 2014 and for her spouse’s termina tion on October 31, 2014, and her o wn termination on November 17, 2014. The Court will evaluate each new claim in turn to determ ine whether there is good cause to allow Plaintiff leave to amend he r Complaint to include the cla im.

a. April 2014 Non-Promotion Plaintiff seeks to amend her Complaint to include an additional claim of race and sex discrimination based on her non- selection for the position of D istrict Manager for the Northern Virginia Region in 2014. While it is not precisely clear on wh at date Plaintiff learned that she had not been selected for the District Manager position, it is clea r that Plaintiff was aware of her nonselection at least seven months b efore seeking to amend her Com plaint and potentially before the4 deadline for amending pleadings. On April 16, 2014, Plaintiff r eceived an email stating that she was not selected for the District Manager position, however, De fendant explains in its Sur-Reply that the email was sent to all a pplicants in error. Def.’s Sur -Reply, at 2; see also Pl.’s Reply, at 3 (explaining that after receiving the email, “Defendant assured Ms. Wallace that her candidacy was still under consideration . . . .”). Shortly after April 16, P laintiff had an initial interview for the District Manager position and wa s invited to return for a panel interview which was tentatively scheduled for May 8, 2014. Def.’s Sur-Reply, at 2. Plaintiff’ s panel interview never took place, however, because prior to that date Defendant decided not to fi ll the position. Id. Defendant claims that it informed Plaintiff that she had not been selected for the position “on or before May 8, 2014,” id. , but Plaintiff contends that as of May 8, 2014, the day amende d pleadings were due, she still believed she was a candidate for the District Manager position, Pl.’s Reply, at 3. In either event, the Court finds that Plain tiff would have made an inquiry about her panel interview and application, especially if the interview was tentatively scheduled for May 8, 2014, sometime in the month of May and thereby learned that Defendant was no longer h iring for the District Manager position. Indeed, Plaintiff had al ready filed the present laws uit at the point she was interviewing for the District Manager position and thus would have been awar e that such hiring decisions should be diligently evaluated due to their potential connection to th e pending lawsuit. Accordingly,Plaintiff’s decision to wait seven months before filing an Amended Complaint to include this nonpromotion as a basis for her discrimination claims constitutes an undue delay. Robinson , 211 F.Supp.2d at 114 (striking plain tiff’s amendment “filed eight m onths after the date specified in the scheduling order because of undue delay”); Lurie , 589 F.Supp.2d at 24 (“The plaintiff’s inadequate explanation, combined with the f act that the motion for leave t o file an amended complaint was filed almost a year after the Court’s deadline, two years after the defendant’s answer, and two5 weeks after the close of discove ry, leads the C ourt to conclude that the plainti ff cannot amend his complaint under the Rule 16(b) “good cause” standard.”). Plaintiff appears to argue that her delay was justified because she did not learn of the potential discriminatory nature, and thus relevance, of her non -promotion to her discrimination case until depositions were conducted in October 2014. Pl.’s Reply, at 4. However, the excerpt from Plaintiff’s deposition that Plaintiff attaches to her Repl y belies this contention. The excerpt comes from a deposition of Plaintiff conducted in mid-August 20 14 and shows that, as of that date, at least, Plaintiff was aware of her non-promotion and already considering it to be a discriminatory act. Nevertheless, Plaintiff waited at least four months before amending her Complaint to include this non-promotion as a basis for her discrimination claim. Ev en accepting the version of the facts presented in Plaintiff’s briefi ng, Plaintiff s till waited two m onths—and two months following the close of discovery—to amend he r Complaint. Although Plaintiff had previously sought to extend the discovery deadline, Plain tiff did not seek to extend the de adline after allege dly learning of the discriminatory nature of her non-promotion in October. Accordi ngly, the Court still finds that Plaintiff was not diligent in seeking to amend her Complaint to add this claim. See Monolithic Power Sys., Inc. v. 02 Micro Internat’l Ltd., Civ. No. 08–4567, 2009 WL 3353306, *2 (N.D.Cal. Oct. 16, 2009) (finding that 02 Micro was not diligent because it had the new relevant information three months before it filed its motion to amend its infringeme nt contentions). Plaintiff also argues that Defe ndant would not be prejudiced by the addition of this nonpromotion claim because “[t]he parties have conducted extensive discovery on the issues surrounding her failure to promote claim during the discovery p eriod, and . . . no additional discovery will be necessary for that claim.” Pl.’s Mot. at 4. Plaintiff explains that the parties’ discovery “included issues related to the non-promotion on plai ntiff’s theory that discovery on the6 non-promotion was potentially relevant to the issue of credibility, bias and pretext, as opposed to a discrete issue of discrimina tion.” Pl.’s Reply, at 3. Plain tiff further claims that Defendant “had a full and fair opportunity to depose Ms. Wallace in August 201 4 on the non-promotion” when Plaintiff suggested the non-prom otion was motivated by discrimination in her deposition. Id. However, Defendant did not conduct depositions with the knowled ge that this non-promotion would be an independent claim worthy of fully fleshing out the facts surrounding the nonpromotion. Plaintiff’s brief re ference to the 2014 non-promoti on was insufficient to put Defendant on notice that substantial discovery should be conducted relating to the non-promotion. Plaintiff also notes that she requested a nd received from Defendant docum ents related to the District Manager vacancy in Virginia. Id. But again, this does not show that Defendant requested any such discovery or was on notice that any such discovery would b e relevant to its defense of this case. Defendant also explains in its Sur-Reply that Plaintiff never provided it with any discoveryrelated to the 2014 non-promotion. Def.’s Sur-Reply, at 4. As Plaintiff’s newly proposed nonpromotion claim would require add itional discovery in order for Defendant to properly prepare its defense, the Court finds that Defendant is prejudiced by Plaint iff’s delay in amending her Complaint to include this claim. See Coleman , 232 F.3d at 1295 (denying motion to amend complaint in part because “the request to amend the complaint w ould likely have required reopening discovery so that [defe ndant] could develop its evide nce to prepare its defenses to this theory”).
b. October and November 2014 Terminations Plaintiff next seeks to amend her Complaint to include discrimination and retaliation claims based on her termination in mid -November 2014 and her spouse’s termination in late October 2014. Plaintiff argues that she has not unduly delayed seeking to add these claims because the7 terminations were imposed in late October and mid-November 2014 after the close of discovery, and Plaintiff “moved swiftly” to amend her complaint in Decembe r 2014 based on these events. Pl.’s Mot., at 4. Nevertheless, Plaintiff acknowledges that th e addition of these claims “will require additional discovery into the events leading to her and her spo use’s termination.” Id. Although Plaintiff acted relatively promptly to amend her Complaint to i nclude these termination claims, the Court finds that Plaintiff cannot show that Defendant will not be prejudiced by this amendment and, thus, cannot establish “good cause” to amend the Complaint . Plaintiff acknowledges that amending the Complaint to include these termination claims would require the parties to reopen discovery, which had already been closed for two months at the time Plaintiff filed her Motion to amend the Complaint. As the termination claims constitute enti rely new claims based on entirely new facts, Defendant would need to conduct depositions of new w itnesses and new depositions of old witnesses, produce new interrogatories and requests for doc umentation, and research new comparator information. Def.’s Opp’n, at 10-11. This entirely new discovery will delay the adjudication of the claims in Plaintiff’s current Complaint. Plaintiff contends that Defendant ’s protest of prejudice is mad e in bad faith because Defendant filed a civil claim in the Eastern District of Virgin ia shortly after the filing of Plaintiff’s Motion for Leave to File First Amended Complaint and that civil claim is based on Plaintiff’s and Plaintiff’s spouse’s termination. Pl.’s Reply, at 5. Plaintif f argues that this civil litigation will already subject Defendant to the discovery and litigation costs that it is seeking to avoid in opposing Plaintiff’s Motion to amend the Complaint. The Court asked Defendant to address the impact of this civil litigation on discovery in this matter in its Sur-Reply. In its Sur-Reply, Defendant explained that the lawsu it in the Eastern District of Virginia was dismissed without prejudice and the parties did no t respond to any discovery. De f.’s Sur-Reply, at 5. As a result,8 Defendant explains, none of the a dditional discovery costs that Defendant argued it would have to incur if Plaintiff were allowed to amend her Complaint were red uced by the lawsuit filed by Defendant in the Eastern District of Virginia. Accordingly, th e Court finds that Plaintiff has not shown that there is “good cause” to amend her Complaint to incl ude these additional termination claims. See In re Papst Licensing GmbH & Co. KG Litigation , 762 F.Supp.2d at 59 (explaining that to show “good cause” under Federal Rule of Civil Procedure 16, “the moving party must show both diligence and a lack of prejudice to the opposing parties.” (emphasis added)). As Plaintiff could bring these new termination claims in an entirely new case, the Court shall DENY WITHOUT PREJUDICE Plaintiff’s Motion for Leave to File First Am ended Complaint to include these claims.

c. District of Columbia Hum an Rights Act Claims Finally, Plaintiff seeks to amend her Complaint to include the DCHRA as a source of relief for all of her claims. Plaintiff does not provide any indicati on in her briefing as to why she did not bring her claims under the DCHRA originally. The Court sees no reason why Plaintiff could not have initially brought her claim s under the DCHRA. Moreover, P laintiff provide s no explanation as to why she is now seeking to amend her Complaint to include a DCHRA cause of action—seven months after the Court’s deadlin e for filing amended pleadings and two months after the close of discovery. Without any explanatio n for why Plaintiff is seeking to add DCHRA claims and at this late stage, the Court conclude s that Plaintiff cannot amend her Complaint under the Rule 16(b) “good cause” standard. 1 See Lurie , 589 F.Supp.2d at 24 (“The plaintiff’s inadequate explanation ,

1 Defendant contends that it will be prejudiced by the addition of DCHRA claims and exposed to more expansive damages because the DCHRA has no cap on damages. Def.’s Opp’n, at 12. However, Plaintiff’s Complaint already includes claims under 42 U.S.C. § 1981, which also has no damages cap. See 42 U.S.C. § 1981a(b). Thus, Defendant was already on notice th at it was defending against a claim with no damages cap. Nevertheles s, it is unclear to the Court why9 combined with the fact that the motion for leave to file an ame nded complaint was filed almost a year after the Court’s deadline, two years after the defendant’s answer, and two weeks after the close of discovery, leads the C ourt to conclude that the plaint iff cannot amend his complaint under the Rule 16(b) “good cause” standard.” (emphasis added)).
III. CONCLUSION For the foregoing reasons, the Court holds that Plaintiff has f ailed to show that there is “good cause” under Federal Rule of Civil Procedure 16(b) to ame nd her Complaint to include any of the additional claims discussed above. Accordingly, Plainti ff’s Motion for Leave to File First Amended Complaint is DENIED. An appropriate Order accompanies this Memorandum Opinion.

/s/ COLLEEN KOLLAR-KOTELLY United States District Judge

Plaintiff is now seeking to amend her Complaint to include DCHRA claims because the elements of a DCHRA and a § 1981 claim are also the same. See Lemmons v. Georgetown University Hosp. , 431 F.Supp.2d 76, 86 (D.D.C. 2006); Hunter v. Ark Restaurants Corp. , 3 F.Supp.2d 9, 20 n.8 (D.D.C. 1998).