                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


 ROBIN E. WALLACE,

              Plaintiff,

         v.                                                 Civil Action No. 14-203 (CKK)
 ALLIEDBARTON SECURITY SERVICES,
 LLC

              Defendant.


                                  MEMORANDUM OPINION
                                      (June 1, 2015)

       Plaintiff Robin E. Wallace filed suit on February 12, 2014, against 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 Plaintiff was required to file any

amended pleadings and August 8, 2014, as the date for completing discovery. The parties

subsequently filed two joint motions for extension of time to complete discovery which the Court

granted, extending the deadline for completing discovery to October 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 Opposition to Plaintiff’s Motion, ECF No. [29], and Plaintiff filed a

Reply, ECF No. [30]. As Plaintiff 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, Plaintiff’s Motion is now ripe for review.

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                                      I.      LEGAL STANDARD

       Plaintiff moves for leave to file an Amended Complaint pursuant to Federal Rule of Civil

Procedure 15, which provides that leave to amend should be freely granted “when justice so

requires.” Fed. R. Civ. P. 15(a). However, since Plaintiff sought to amend her Complaint seven

months after the Court-ordered deadline for filing amended pleadings, the more stringent Rule 16

“good cause” standard governs the Court’s evaluation of Plaintiff’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 numerous 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 circuited’ by those of Rule 15 and would 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 the 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 moving 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 considers the diligence of the party




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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 action: 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). Plaintiff’s race and sex discrimination

claims arose out of Plaintiff’s alleged demotion from her District Manager position in April 2013.

Plaintiff’s retaliation claims arose out of the hostile work environment Plaintiff alleges she and her

spouse were subjected to following Plaintiff’s complaint to Defendant 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 additional claims of racial

discrimination and retaliation under § 1981 and racial and gender 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 Northern Virginia Region in April 2014

and for her spouse’s termination on October 31, 2014, and her own termination on November 17,

2014. The Court will evaluate each new claim in turn to determine whether there is good cause to

allow Plaintiff leave to amend her Complaint to include the claim.

               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 District Manager for the Northern

Virginia Region in 2014. While it is not precisely clear on what date Plaintiff learned that she had

not been selected for the District Manager position, it is clear that Plaintiff was aware of her non-

selection at least seven months before seeking to amend her Complaint and potentially before the



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deadline for amending pleadings. On April 16, 2014, Plaintiff received an email stating that she

was not selected for the District Manager position, however, Defendant explains in its Sur-Reply

that the email was sent to all applicants 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, Plaintiff had an initial interview for the

District Manager position and was 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 fill 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 amended 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 Plaintiff 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 hiring for the District Manager

position. Indeed, Plaintiff had already filed the present lawsuit at the point she was interviewing

for the District Manager position and thus would have been aware that such hiring decisions should

be diligently evaluated due to their potential connection to the pending lawsuit. Accordingly,

Plaintiff’s decision to wait seven months before filing an Amended Complaint to include this non-

promotion as a basis for her discrimination claims constitutes an undue delay. Robinson, 211

F.Supp.2d at 114 (striking plaintiff’s amendment “filed eight months 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 fact that the motion for leave to file an amended complaint was

filed almost a year after the Court’s deadline, two years after the defendant’s answer, and two



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weeks after the close of discovery, leads the Court to conclude that the plaintiff 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 Reply belies this contention. The excerpt

comes from a deposition of Plaintiff conducted in mid-August 2014 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. Even accepting the version of the facts

presented in Plaintiff’s briefing, Plaintiff still waited two months—and two months following the

close of discovery—to amend her Complaint. Although Plaintiff had previously sought to extend

the discovery deadline, Plaintiff did not seek to extend the deadline after allegedly learning of the

discriminatory nature of her non-promotion in October. Accordingly, 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 infringement contentions).

       Plaintiff also argues that Defendant would not be prejudiced by the addition of this non-

promotion claim because “[t]he parties have conducted extensive discovery on the issues

surrounding her failure to promote claim during the discovery period, 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 plaintiff’s theory that discovery on the



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non-promotion was potentially relevant to the issue of credibility, bias and pretext, as opposed to

a discrete issue of discrimination.” Pl.’s Reply, at 3. Plaintiff further claims that Defendant “had

a full and fair opportunity to depose Ms. Wallace in August 2014 on the non-promotion” when

Plaintiff suggested the non-promotion was motivated by discrimination in her deposition. Id.

However, Defendant did not conduct depositions with the knowledge that this non-promotion

would be an independent claim worthy of fully fleshing out the facts surrounding the non-

promotion. Plaintiff’s brief reference to the 2014 non-promotion was insufficient to put Defendant

on notice that substantial discovery should be conducted relating to the non-promotion. Plaintiff

also notes that she requested and received from Defendant documents 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 be relevant to its defense of this

case. Defendant also explains in its Sur-Reply that Plaintiff never provided it with any discovery

related to the 2014 non-promotion. Def.’s Sur-Reply, at 4. As Plaintiff’s newly proposed non-

promotion claim would require additional discovery in order for Defendant to properly prepare its

defense, the Court finds that Defendant is prejudiced by Plaintiff’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 would likely have required

reopening discovery so that [defendant] could develop its evidence 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 the



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terminations were imposed in late October and mid-November 2014 after the close of discovery,

and Plaintiff “moved swiftly” to amend her complaint in December 2014 based on these events.

Pl.’s Mot., at 4. Nevertheless, Plaintiff acknowledges that the addition of these claims “will require

additional discovery into the events leading to her and her spouse’s termination.” Id. Although

Plaintiff acted relatively promptly to amend her Complaint to include 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 entirely new claims based on entirely

new facts, Defendant would need to conduct depositions of new witnesses and new depositions of

old witnesses, produce new interrogatories and requests for documentation, 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 made in bad faith because

Defendant filed a civil claim in the Eastern District of Virginia 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. Plaintiff 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 lawsuit in the Eastern District of Virginia was dismissed without

prejudice and the parties did not respond to any discovery. Def.’s Sur-Reply, at 5. As a result,



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Defendant explains, none of the additional discovery costs that Defendant argued it would have to

incur if Plaintiff were allowed to amend her Complaint were reduced by the lawsuit filed by

Defendant in the Eastern District of Virginia. Accordingly, the Court finds that Plaintiff has not

shown that there is “good cause” to amend her Complaint to include 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 Amended Complaint to include

these claims.

                c. District of Columbia Human 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 indication 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 claims under the DCHRA. Moreover, Plaintiff provides 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 deadline for filing amended pleadings and two months after the close of

discovery. Without any explanation for why Plaintiff is seeking to add DCHRA claims and at this

late stage, the Court concludes 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 that it
was defending against a claim with no damages cap. Nevertheless, it is unclear to the Court why
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combined with the fact that the motion for leave to file an amended 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 Court to conclude that the plaintiff 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 failed to show that there is

“good cause” under Federal Rule of Civil Procedure 16(b) to amend her Complaint to include any

of the additional claims discussed above. Accordingly, Plaintiff’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).
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