                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA
__________________________________________
                                           )
CANDICE MILES,                             )
                                          )
            Plaintiff,                    )
                                          )
      v.                                  )   Civil Action No. 12-378 (RBW)
                                          )
UNIVERSITY OF THE DISTRICT OF             )
COLUMBIA and HOWARD UNIVERSITY,           )
                                          )
            Defendants.                   )
__________________________________________)

                                        MEMORANDUM OPINION

         The plaintiff, Candice Miles, filed this civil action against defendants Howard University

(“Howard”) and the University of the District of Columbia (“UDC”), alleging violations of the

federal Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2615 (2012), the District of

Columbia Family and Medical Leave Act (“DCFMLA”), D.C. Code §§ 32-501 to -517 (2001),

and the District of Columbia Human Rights Act (“DCHRA”), D.C. Code §§ 2-1401.01 to

-1431.08 (2001). Complaint (“Compl.”) ¶¶ 107-39. Currently before the Court are the

defendants’ motions to dismiss the plaintiff’s complaint, and the plaintiff’s motion for leave to

amend her complaint to include a claim under Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e-2(a) (2012). For the reasons explained below, the Court must deny the

defendants’ motions to dismiss and grant the plaintiff’s motion to amend her complaint. 1


1
 In deciding the parties’ motions, the Court considered the following filings made by the parties in addition to those
already identified: (1) Defendant Howard University’s Memorandum in Support of its Motion to Dismiss the
Complaint for Failure to State a Claim Upon Which Relief can be Granted (“Howard’s Dismiss Mem.”); (2)
Plaintiff Candice Miles’ Memorandum of Points and Authorities in Opposition to Defendant Howard University’s
Motion to Dismiss the Complaint for Failure to State a Claim Upon Which Relief can be Granted (“Pl.’s Howard
Opp’n”); (3) Defendant Howard University’s Reply Brief in Further Support of Motion to Dismiss (“Howard’s
Reply”); (4) the Memorandum in Support of Defendant the University of the District of Columbia’s Motion to
                                                                                                       (continued . . .)
                                              I. BACKGROUND

        The plaintiff’s complaint alleges the following in support of her claims.

A.      The D.C. Small Business Development Center Network and the Plaintiff’s
        Employment

        For over twenty years, Howard has “operate[d] the Lead Center for the District of

Columbia Small Business Development Center Network [(“D.C. Network”)] . . . under an

annually renewable grant from the United States Small Business Administration.” Compl. ¶ 9.

“The . . . [D.C.] Network is accredited by the Association of Small Business Development

Centers.” Id. Howard and the Small Business Administration negotiate the performance goals

by which the amount of the grant is measured. Id. ¶ 10. In turn, Howard “awards sub-grants to .

. . different organizations” within the D.C. Network to operate D.C. Network Service Centers,

“including UDC, the Anacostia Economic Development Corporation [], and the D.C. Chamber

of Commerce.” Id. ¶ 11. The Service Centers provide various consulting and educational

services to small businesses. Id. ¶ 12. Howard and the various Service Center organizations

within the D.C. Network “frequently refer clients to one another and provide services based upon

the expertise and resources of each Center and the convenience of the client.” Id. ¶ 13. The




(. . . continued)
Dismiss (“UDC’s Dismiss Mem.”); (5) Plaintiff Candice Miles’ Opposition to Defendant University of the District
of Columbia’s Motion to Dismiss (“Pl.’s UDC Opp’n”); (6) the Reply in Support of Defendant the University of the
District of Columbia’s Motion to Dismiss (“UDC’s Dismiss Reply”); (7) Plaintiff Candice Miles’ Memorandum in
Support of Her Motion for Leave to File an Amended Civil Complaint for Monetary Relief and Demand for Jury
Trial (“Pl.’s Mem.”); (8) Defendant Howard University’s Memorandum of Law in Opposition to Plaintiff’s Motion
for Leave to Amend the Complaint (“Howard’s Opp’n”); (9) Defendant the University of the District of Columbia’s
Opposition to the Plaintiff’s Motion for Leave to File an Amended Complaint (“UDC’s Opp’n”); (10) Plaintiff
Candice Miles’ Motion to Withdraw her Amended Complaint for Monetary Relief and Demand for Jury Trial (“Pl.’s
Withdraw Mot.”); (11) Defendant the University of the District of Columbia’s Consent to Plaintiff’s Motion to
Withdraw the Amended Complaint (“UDC’s Consent Mot.”); and (12) Defendant Howard University’s Consent to
Plaintiff’s Motion to Withdraw the Amended Complaint (“Howard’s Consent Mot.”).



                                                       2
relationship between Howard and the Service Centers is set forth in the D.C. Small Business

Development Center Network Standard Operating Procedures (“Procedures”). Id. ¶¶ 14-16.

       The plaintiff, Candice Miles, is a Maryland resident who was previously employed in two

capacities within the D.C. Network. From March 2007 until early January 2009, she was a

Senior Small Business Development Specialist with the Anacostia Economic Development

Corporation, id. ¶¶ 1, 27, 30, and from January 5, 2009 until June 30, 2011, she was the Director

of the UDC Service Center, id. ¶¶ 1, 30. Before the plaintiff began her employment with UDC,

“the Director position at the UDC Service Center was vacant for over six months,” id. ¶ 37, and

“[d]uring the eight years prior to [the plaintiff being] hir[ed for that position], there was high

turnover in the positions of Director and Small Business Consultant at the UDC Service Center,”

id. ¶ 39. During the time immediately prior to the plaintiff’s tenure with the UDC Service

Center, the “Center referred many clients to other Service Centers” within the D.C. Network. Id.

¶ 37. “Referring clients between Service Centers is a regular business practice of the [D.C.

Network] and [is] facilitated by the . . . [Procedures’] guidance on record storage.” Id. ¶ 38. The

plaintiff’s UDC “position was a Sponsored Program Appointment, and her position had a not-to-

exceed date of September 30, 2009.” Id. ¶ 32. However, “UDC extended the not-to-exceed date

each year and starting in September 2009, UDC deducted retirement benefits and health

insurance premiums from [the plaintiff’s] paycheck.” Id.

       Between April and July 2010, the D.C. Network’s training director, finance director, and

director all resigned from their positions. Id. ¶¶ 29, 42. “As of July 30, 2010, the staff of

Howard’s Lead Center consisted of an Associate State Director, an acting Director of Finance,

and an Administrative Assistant.” Id. ¶ 43. “In August 2010, . . . Don Wilson, the former

president of the [Association of Small Business Development Centers,] . . . [became] a


                                                 3
consultant for the [D.C. Network].” Id. ¶ 46. His “responsibilities included assisting the . . .

[D.C. Network] with the upcoming accreditation review, leading the search for a new Executive

Director” of the D.C. Network, “and handling the day-to-day operations of the remaining staff at

Howard’s Lead Center.” Id. ¶ 47. He “did not resume the regularly scheduled meetings” that the

former Executive Director had required of personnel at the Centers, id. ¶¶ 35-36, 41, 48, and he

also “failed to assist the Service Centers in coordinating their work and achieving their

contractually required goals.” Id. ¶ 48.

B.     The Plaintiff’s Pregnancy and FMLA/DCFMLA Leave

       On August 16, 2010, the plaintiff’s doctor confirmed that the plaintiff was pregnant. Id. ¶

44. She “immediately notified Hattie Rogers in UDC’s Human Resources department of her

pregnancy and inquired about maternity benefits,” and “notified her Administrative Assistant,

Aura Garcia, at this time.” Id. ¶ 45. She additionally notified UDC’s Acting Provost and Vice

President, Academic Affairs and Dean of Business and Public Administration, Charlie Mahone,

of her pregnancy in October 2010. Id. ¶¶ 33, 49. “During the Winter of 2010, [the plaintiff] also

informed . . . [the] Director of the [Anacostia] Service Center[] of her pregnancy.” Id. ¶ 59.

“Also in or about January 2011, [the plaintiff] informed the [D.C. Network] Assistant Director

and acting Executive Director, Eldridge Allen, of her pregnancy.” Id. ¶ 55. The plaintiff

additionally “informed other staff members at the Lead Center of her pregnancy . . . in or about

January 2011.” Id. ¶ 56. “In or about February 2011, [the plaintiff] informed [Hattie] Rogers [of

UDC’s Human Resources Department] of her intent to take the maximum amount of leave

provided by the DCFMLA starting on her anticipated due date, April 3, 2011, and submitted the

necessary paperwork, including a certification from her physician.” Id. ¶ 58.




                                                 4
       “On multiple occasions [during the Winter of 2010], the plaintiff and [the Director of the

Anacostia Service Center] discussed referring clients to the [Anacostia Service Center] during

[the plaintiff’s] maternity leave.” Id. ¶ 59. The plaintiff “also met with [her Administrative

Assistant] and informed her that the UDC Service Center would have to refer clients to the

[Anacostia Service Center] and other [D.C. Network] offices during her absence,” and

“instructed [her Administrative Assistant] to continue to host workshops and to work closely

with the [Anacostia Service Center] to ensure that clients’ counseling needs [we]re met.” Id. ¶

60. The plaintiff “intended to meet with [Charlie] Mahone to discuss her plan to manage the

UDC Service Center while on FMLA leave but was unable to do so because Mahone himself

was out on medical leave.” Id. ¶ 61.

       “On or about March 7, 2011, . . . [the plaintiff’s] doctor unexpectedly placed her on

temporary bed rest due to complications with her pregnancy,” and “[o]n or about Friday, March

11, 2011, [her] doctor placed her on bed rest for the duration of her pregnancy.” Id. ¶¶ 66, 68.

The plaintiff informed Mahone of the complications, “and after discussing it with Mahone, sent

an email to senior [D.C. Network] staff regarding her medical leave.” Id. ¶¶ 66, 69. “On or

about March 14, 2011, [the Howard Lead Center Director] emailed [the plaintiff] and called [her

Administrative Assistant] to inquire into [the plaintiff’s] FMLA leave and her plan to operate the

center while on FMLA leave.” Id. ¶ 70. The plaintiff asked her Administrative Assistant to

inform the Lead Center Director “about the plan to transfer clients to other [D.C. Network] . . .

Service Centers, in accordance with existing . . . practice and policy,” and tell him to “contact

[Hattie] Rogers” in the UDC Human Resources Department “regarding UDC’s FMLA policy.”

Id. ¶¶ 62, 70. The plaintiff remained “in continuous contact with Mahone, Rogers, and Garcia”

while she was on bed rest. Id. ¶ 71. “Through induced labor on or about March 24, 2011, [the


                                                5
plaintiff] gave birth several weeks before her expected due date.” Id. ¶ 72. The next day, “at the

end of [the plaintiff’s] short-term disability, UDC granted [her] FMLA medical leave from on or

about April 3, 2011, through on or about June 14, 2011.” Id. ¶ 73. On or about April 19, 2011,

the plaintiff also received a letter from Hattie Rogers which “stat[ed] that UDC approved [the

plaintiff] to take family leave under the FMLA from May 7, 2011[,] through August 26, 2011.”

Id. ¶ 81.

C.      The Accreditation Process and the Accreditation Deferral

        During the Fall of 2010, Don Wilson asked the “Service Center Director[s] to work with

the Lead Center to prepare documents for the [D.C. Network’s] upcoming accreditation review

by the [Association of Small Business Development Centers],” and he also “required each

Service Center Director to attend a daylong training session in preparation for the accreditation.”

Id. ¶¶ 50-51. Wilson later “changed his mind and excluded the Service Center Directors from

the accreditation process which took place in or about December 2010.” Id. ¶ 52. Shortly

thereafter, “[i]n or about January 2011, Jason Cross, Director of the D.C. Chamber of

Commerce’s Service Center, announced his resignation.” Id. ¶ 53. “During the subsequent

months, while the D.C. Chamber of Commerce Service Center was without a Director, the

Service Center referred clients to other Service Centers in accordance with the normal practice of

the [D.C. Network].” Id. ¶ 54.

        “On or about February 23, 2011, Howard’s Lead Center held a [D.C. Network] meeting

to introduce its new Executive Director, Darrell Brown.” Id. ¶ 62. At that time, “[Don] Wilson




                                                6
indicated that the . . . Network would likely receive a deferral 2 from the [Association of Small

Business Development Centers] Accreditation Committee.” Id. ¶ 63. The next month, “[i]n

March 2011, . . . the [Accreditation Committee] issued the [D.C. Network] a deferral and listed

numerous deficiencies . . . .” Id. ¶ 65.

D.       The Plaintiff’s Termination

         “On or about April 7, 2011, [Darrell] Brown, the [D.C. Network’s] new Executive

Director[,] sent a letter to [Charlie] Mahone informing him that the UDC Service Center was

being placed on probation, and requiring the preparation of a written recovery plan within 30

calendar days.” Id. ¶ 74. The letter stated in part:

         Based upon our performance review analysis of the UDC [S]ervice [C]enter, the
         review of the [Association of Small Business Development Center]’s
         accreditation team, and our meeting with you on April 1, 2011, I have concluded
         that the performance level of the [U]DC [Service Center] is seriously deficient.

         Specifically:
                                                        ....

         •   [T]he Service Center Director is currently on maternity leave. She took leave
             without prior notification to the Executive Director. She notified the
             Executive Director she was taking leave only after her leave started and she
             failed to make any meaningful provision for the continuation of client services
             at the UDC [S]ervice [C]enter. Moreover, the Center Director failed to
             communicate to the Executive Director a specific date and time for returning
             to work. The Center Director essentially abandoned the [S]ervice [C]enter
             and its clients by her failure to take the necessary and proper steps to assure
             viable operation of the [S]ervice [C]enter. Further, the Center Director failed
             to communicate to the Executive Director that the [S]ervice [C]enter would
             cease to function when she took maternity leave. Today, the [S]ervice
             [C]enter is not functioning except for making referrals to other service centers.

                                                        ....

2
  Deferrals “require[] a network to create a work plan and address all of the findings of the Accreditation Committee
listed in their report within a 12-month period. A deferral of accreditation also puts a network in jeopardy of losing
its grant funding from the [Small Business Administration].” Compl. ¶ 64.



                                                         7
       In drafting the UDC [Service Center] recovery plan, you may wish to consider:

       •   [R]eplacing the Service Center Director with a more experienced person, who
           has an educational background and meaningful experience in marketing,
           business development, consulting, and communications. Should you decide to
           replace the Service Center Director, the final selection of a new Service
           Center Director shall be subject to the Lead Center’s approval.

Id. ¶¶ 75-76.

       The plaintiff “learned of the existence of Brown’s April 7, 2011 letter” on April 11, 2011,

id. ¶ 78, and “pick[ed] up a copy of the letter” from UDC on April 13, 2011, id. ¶ 79. She first

spoke with “Renae Lee, a UDC Human Resources Specialist, regarding Brown’s letter.” Id. ¶

79. “Lee referred [the plaintiff] to UDC’s Manager of Diversity and Equity, Yasmin Mitchell,”

id., and the plaintiff spoke with Mitchell on April 19, 2011, id. ¶ 80. Mitchell instructed the

plaintiff to speak with Charlie Mahone, id., and “[o]n or about April 27, 2011, [the plaintiff]

emailed Mahone requesting a time to speak about the letter,” id. ¶ 82. Mahone indicated that he

did not want to speak with her, and would rather have her provide “information [to him] by the

close of business on or about April 28, 2011.” Id. The plaintiff responded by email, id. ¶ 83, but

“[o]n May 3, 2011, Mahone rejected [her] response,” id. ¶ 84.

       “On or about May 5, 2011, [the plaintiff] contacted Mitchell to discuss Mahone’s

response,” and “Mitchell informed [the plaintiff] that due to concerns with [the plaintiff] working

while on FMLA leave, Mahone would cease questioning her regarding Brown’s April 7, 2011

letter.” Id. ¶ 86. The next day, “Mahone emailed [the plaintiff]” and stated that he was

“surprised that [he] ha[d] not received a response to [his] last email,” and requested that the

plaintiff provide a response. Id. ¶ 87. The plaintiff thus responded with an email in which she

“expand[ed] on her plan for improving the performance of the UDC Service Center, explain[ed]

her failure to respond to Mahone’s prior email, and reiterate[ed] her dedication to the Service

                                                 8
Center and intent to return upon the completion of her maternity leave.” Id. ¶ 88. A few days

later, the plaintiff “again spoke with Mitchell regarding her ability to work to address the

situation with the UDC Service Center while on leave” and subsequently “traveled to UDC on or

about May 17, 2011, and again discussed the subject with Mitchell.” Id. ¶ 89. Mitchell advised

the plaintiff “that she had spoken with Mahone, who would no longer contact [the plaintiff]

while [she was] on FMLA leave.” Id.

       On May 20, 2011, the plaintiff learned that Howard had terminated funding for the UDC

Service Center. Id. ¶¶ 91-92. “With the exception of UDC, Howard renewed all of the Service

Center sub-awards for 2012 . . . .” Id. ¶ 102. The plaintiff spoke with her administrative

assistant on June 7, 2011, “who told her Mahone stopped by the office and informed her that the

actual termination [of the UDC sub-award] would take place on June 30, 2011.” Id. ¶ 94. The

plaintiff received a voice message from Mahone on June 29, 2011, and the two spoke on June 30,

2011. Id. ¶ 95. “Mahone informed [the plaintiff] that Howard closed the UDC Service Center

and stated that her future at UDC was unknown.” Id. Later on June 30, 2011, the plaintiff spoke

with UDC Human Resource Specialist Lee, who “stated that [the plaintiff’s] matter had been

referred to UDC’s general counsel, and [the plaintiff] should hear back by on or about Friday,

July 8, 2011.” Id. ¶ 97.

       The plaintiff was formally notified on July 15, 2011, that her employment had been

terminated effective June 30, 2011. Id. ¶ 98. The letter “demanded that [the plaintiff] report to

Lee for an exit interview and return all UDC property” by July 22, 2011, and “also informed [the

plaintiff] that her FMLA leave was rescinded and that [she] was eligible for 31 days of free

health insurance.” Id. ¶ 99. Finally, the letter “allege[d] that UDC overpaid [the plaintiff] by

$728.46 while on short-term disability, and stated that UDC was withholding” the plaintiff’s


                                                9
final paycheck until she returned the amount of the overpayment. Id. The letter directed the

plaintiff to contact Keith Poindexter about the pay discrepancy, who told the plaintiff “that

UDC’s letter was inaccurate due to UDC’s miscalculation of [the plaintiff’s] leave, and that he

would follow up with her by July 22, 2011.” Id. ¶ 100. However, the plaintiff did not hear from

Poindexter, id., and “[t]o date, UDC has not provided [the plaintiff] with an accurate accounting

of the overpayment which it alleges she owes, and has not paid [the plaintiff] her final

paycheck.” Id. ¶ 106.

       The plaintiff “submitted a written Equal Employment Opportunity [(“EEO”)] complaint

to Mitchell” on September 7, 2011, “alleging that UDC violated [the plaintiff’s] rights under the

FMLA,” as well as complaining about the statements in Brown’s April 7, 2011 letter. Id. ¶ 103.

“On November 9, 2011, Mitchell emailed [the plaintiff] and stated that [her] EEO complaint

should be filed with Howard.” Id. ¶ 104; see also id. ¶ 105.

       The plaintiff then filed this action against Howard and UDC alleging violations of the

FMLA, the DCFMLA, and the DCHRA. She has also filed a motion seeking leave to amend her

complaint to include a Title VII claim. The defendants have filed motions to dismiss the

plaintiff’s claims, arguing that she has failed to state claims upon which relief may be granted,

and they additionally oppose the plaintiff’s motion to amend her complaint on the grounds that

the proposed amendments are untimely as a matter of law and would otherwise be futile.

                                II. STANDARDS OF REVIEW

A.     Rule 12(b)(6) Motion to Dismiss

       A Federal Rule of Civil Procedure 12(b)(6) motion tests whether the complaint “state[s] a

claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a motion to

dismiss [under Rule 12(b)(6)], a complaint must contain sufficient factual matter, accepted as

                                                 10
true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially

plausible “when the plaintiff pleads factual content that allows the court to draw [a] reasonable

inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S.

at 556). While the Court must “assume [the] veracity” of any “well-pleaded factual allegations”

in the complaint, conclusory allegations “are not entitled to the assumption of truth.” Id. at 679.

In evaluating a Rule 12(b)(6) motion under this framework, “[t]he complaint must be liberally

construed in favor of the plaintiff, who must be granted the benefit of all inferences that can be

derived from the facts alleged,” Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)

(internal quotation marks and citations omitted), and the Court “may consider only the facts

alleged in the complaint, any documents either attached to or incorporated in the complaint[,]

and matters of which [the Court] may take judicial notice,” EEOC v. St. Francis Xavier Parochial

Sch., 117 F.3d 621, 624 (D.C. Cir. 1997) (footnote omitted).

B.     Rule 15 Motion to Amend

       “A party may amend its pleading once as a matter of course” before the adverse party has

filed a responsive pleading. Fed. R. Civ. P. 15(a). However, after a responsive pleading has

been filed, the initial pleading may be amended “only with the opposing party’s written consent

or the court’s leave.” Id. While the Court has sole discretion to grant or deny leave to amend,

“[l]eave to amend a [pleading] should be freely given in the absence of undue delay, bad faith,

undue prejudice to the opposing party, repeated failure to cure deficiencies, or futility.”

Richardson v. United States, 193 F.3d 545, 548-49 (D.C. Cir. 1999) (citing Foman v. Davis, 371

U.S. 178, 182 (1962)). The rationale for this perspective is that “[i]f the underlying facts or




                                                  11
circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded

an opportunity to test his claim on the merits.” Foman, 371 U.S. at 182.

                                    III. LEGAL ANALYSIS

       Howard’s motion to dismiss relies, at least in part, on the theory that it was not a joint

employer of the plaintiff. Howard’s Dismiss Mem. at 12-20. Accordingly, before addressing the

merits of its motion to dismiss, the Court must first determine whether Howard and UDC jointly

employed the plaintiff for the purposes of the FMLA, the DCFMLA, or the DCHRA. After

deciding these questions, the Court will then address the plaintiff’s motion to amend her

complaint.

A.     The Joint Employment Tests

       1.       The FMLA Joint Employment Test

       The implementing regulations of the FMLA provide:

       Where two or more businesses exercise some control over the work or working
       conditions of the employee, the businesses may be joint employers under the
       FMLA. Joint employers may be separate and distinct entities with separate
       owners, managers, and facilities. Where the employee performs work which
       simultaneously benefits two or more employers, or works for two or more
       employers at different times during the workweek, a joint employment
       relationship generally will be considered to exist in situations such as:

             (1) Where there is an arrangement between employers to share an employee’s
             services or to interchange employees;

             (2) Where one employer acts directly or indirectly in the interest of the other
             employer in relation to the employee; or,

             (3) Where the employers are not completely disassociated with respect to the
             employee’s employment and may be deemed to share control of the
             employee, directly or indirectly, because one employer controls, or is
             controlled by, or is under common control with the other employer.




                                                 12
29 C.F.R. § 825.106(a) (2012). The regulations provide further that “[a] determination of

whether or not a joint employment relationship exists is not determined by the application of any

single criterion, but rather the entire relationship is to be viewed in its totality.”

Id. § 825.106(b)(1).

        The District of Columbia Circuit has not spoken directly to the factors appropriately

considered by courts in determining whether two or more employers are joint employers under

the FMLA. However, “[c]ourts in this jurisdiction have used one of two legal tests to determine

whether a plaintiff worked for joint employers” in other contexts. Konah v. Dist. of Columbia,

815 F. Supp. 2d 61, 70 (D.D.C. 2011) (citing Redd v. Summers, 232 F.3d 933 (D.C. Cir. 2000);

Spirides v. Reinhardt, 613 F.2d 826 (D.C. Cir. 1979)). Each test comprises “a relatively open-

ended, fact-intensive inquiry.” Id. In Redd, the Circuit observed that, “[f]or a joint employment

test, a fairly standard formulation is that of the Third Circuit,” which directs courts to consider

“‘whether one employer[,] while contracting in good faith with an otherwise independent

company, has retained for itself sufficient control over the terms and conditions of employment

of the employees who are employed by the other employer.’” 232 F.3d at 938 (alteration in

original) (quoting NLRB v. Browning-Ferris Indus. of Pennsylvania, Inc., 691 F.2d 1117, 1123

(3d Cir. 1982)). However, the Redd court did not apply the Third Circuit test. Id. Rather, while

the court observed that it “ha[d] never invoked Spirides to resolve an issue of joint employment,”

it nonetheless applied the test set forth in Spirides. Id. Under Spirides,

        one criterion-the putative employer’s “right to control the ‘means and manner’ of
        the worker’s performance”-[is] central to classification as an employee or
        independent contractor. . . . [I]f the putative employer has “the right to control and
        direct the work of an individual, not only as to the result to be achieved, but also
        as to the details by which that result is achieved, an employer/employee
        relationship is likely to exist.” [Courts should then consider] eleven “[a]dditional
        matters of fact” that may be relevant.


                                                   13
Id. (citing and quoting Spirides, 613 F.2d at 831-32). The eleven “additional” Spirides factors

are:

       (1) the kind of occupation, with reference to whether the work usually is done
       under the direction of a supervisor or is done by a specialist without supervision;
       (2) the skill required in the particular occupation; (3) whether the “employer” or
       the individual in question furnishes the equipment used and the place of work; (4)
       the length of time during which the individual has worked; (5) the method of
       payment, whether by time or by the job; (6) the manner in which the work
       relationship is terminated; i.e., by one or both parties, with or without notice and
       explanation; (7) whether annual leave is afforded; (8) whether the work is an
       integral part of the business of the “employer”; (9) whether the worker
       accumulates retirement benefits; (10) whether the “employer” pays social security
       taxes; and (11) the intention of the parties.

613 F.2d at 832. In applying the test, “[t]he eleven factors should ideally be used to address the

question of control-with both control and the eleven factors being evaluated simultaneously.”

Redd, 232 F.3d at 938.

       Several other circuits have provided guidance or set forth tests for determining whether

two or more employers are joint employers for FMLA purposes. See, e.g., Grace v. USCAR,

521 F.3d 655, 666-67 (6th Cir. 2008) (focusing analysis on amount of control each employer

maintained over employee by considering which employer managed the employee’s payroll,

benefits, supervision, and salary and hour determinations); Moldenhauer v. Tazewell-Pekin

Consol. Commc’ns Ctr., 536 F.3d 640, 644 (7th Cir. 2008) (“[W]e hold generally that for a joint-

employer relationship to exist, each alleged employer must exercise control over the working

conditions of the employee, although the ultimate determination will vary depending on the

specific facts of each case.”); Engelhardt v. S.P. Richards Co., 472 F.3d 1, 4 n.2 (1st Cir. 2006)

(observing that the FMLA joint employer test “looks to whether there are sufficient indicia of an

employer/employee relationship to justify imposing liability on the plaintiff’s non-legal

employer”); Moreau v. Air France, 356 F.3d 942, 946 (9th Cir. 2004) (considering two tests, the

                                                 14
first: “‘whether the alleged employer (1) had the power to hire and fire employees, (2) supervised

and controlled employee work schedules or conditions of payment, (3) determined the rate and

method of payment, and (4) maintained employment records,’” and the second: “‘(A) The nature

and degree of control of the workers; (B) The degree of supervision, direct or indirect, of the

work; (C) The power to determine the pay rates of the methods of payment of the workers; (D)

The right, directly or indirectly, to hire, fire, or modify the employment conditions of the

workers; and (E) Preparation of payroll and the payment of wages’” (citations omitted));

Morrison v. Magic Carpet Aviation, 383 F.3d 1253, 1258 (11th Cir. 2004) (finding no joint

employment relationship where putative joint employers “did not ‘share’ [the employee’s]

service” and where one of the employers “lacked direct control over” either the employee or the

other employer). And for their part, the parties urge the Court to look to case law construing the

joint employment provisions of the Fair Labor Standards Act. Howard’s Dismiss Mem. at 14

(setting forth “a four-factor ‘economic reality test’ borrowed from [the] Fair Labor Standards

Act”); Pl.’s Opp’n at 10 (same). Under the Fair Labor Standards Act, courts consider:

       whether the alleged employer (1) had the power to hire and fire the employees,
       (2) supervised and controlled employee work schedules or conditions of
       employment, (3) determined the rate and method of payment, and (4) maintained
       employment records.

Ivanov v. Sunset Pools Mgmt., Inc., 567 F. Supp. 2d 189, 195-96 (D.D.C. 2008) (quotation

marks and citation omitted); see also Morrison v. Int’l Programs Consortium, Inc., 253 F.3d 5,

11 (D.C. Cir. 2001) (setting forth the same four-factor test for determining employment status

under the Fair Labor Standards Act). As with the general joint employer tests that have been

applied in this Circuit, each of the existing FMLA-specific joint employer tests applied in other

circuits as well as the employment status test applied in the Fair Labor Standards Act context



                                                15
comprise fact-intensive inquiries that center largely on the amount of control an employer has

over an employee. Because these tests are not materially different from the general joint

employment tests announced and applied in this Circuit, the Court will apply the tests used in

Browning-Ferris and Spirides to determine whether Howard was the plaintiff’s joint employer

for FMLA purposes.

       2.      The DCFMLA Joint Employment Test

       The language used in the implementing regulations of the DCFMLA, which is the

District of Columbia’s local counterpart to the FMLA, is identical to the language found in the

FMLA. Compare 4 DCMR § 1602.1-.2, with 29 C.F.R. § 825.106(a). And like the FMLA, the

DCFMLA provides that no “single criterion” governs the determination of whether two or more

employers are joint employers, “but rather the entire relationship [is] viewed in the totality.”

4 DCMR § 1602.3; see also 29 C.F.R. § 825.106(b)(1).

       Although it has not articulated a joint employer test, the District of Columbia Court of

Appeals “look[s] to FMLA regulations and case law as persuasive authority in interpreting” the

DCFMLA. Chang v. Inst. for Public-Private P’ships, Inc., 846 A.2d 318, 327 (D.C. 2004); see

also Cobbs v. Bluemercury, Inc., 746 F. Supp. 2d 137, 142 (D.D.C. 2010) (noting that the

showings required to state a prima facie case under the DCFMLA and FMLA are the same).

Accordingly, the Court will also apply the Browning-Ferris and Spirides joint employer tests to

the plaintiff’s DCFMLA claims.

       3.      The DCHRA Joint Employment Test

       As to the DCHRA, the Court “notes that DCHRA claims are generally scrutinized under

the same legal framework used by courts to analyze claims under Title VII,” Konah, 815 F.

Supp. 2d at 71 (citing, among others, Sparrow v. United Air Lines, 216 F.3d 1111, 1114 (D.C.

                                                 16
Cir. 2000)), unless “there is an indication either from legal precedent or statutory language that

the DCHRA is meant to depart from the federal courts’ Title VII jurisprudence,” id. (citing

Evans v. Wash. Ctr. for Internships & Acad. Seminars, 587 F. Supp. 2d 148, 151 (D.D.C. 2008);

Lively v. Flexible Packaging Ass’n, 830 A.2d 874, 890 (D.C. 2003)).

       Other federal circuits have “applied the standards promulgated by the National Labor

Relations Board (“NLRB”)” to determine whether two or more employers are joint employers

for Title VII purposes. See Cardinale v. S. Homes of Polk Cnty, Inc., 310 F. App’x 311, 313

(11th Cir. 2009) (citing McKenzie v. Davenport-Harris Funeral Home, 834 F.2d 930, 933 (11th

Cir. 1987) (collecting cases from the Sixth and Ninth Circuits)). Under the NLRB standards,

courts determine joint employer status by considering indications of “interrelation of operations,

common management, centralized control of labor relations and common ownership.” Radio &

Television Broad. Technicians Local Union 1264 v. Broad. Serv. of Mobile, Inc., 380 U.S. 255,

256 (1965). However, this Circuit has not adopted the NLRB standards test in the Title VII

context. Moreover, other members of this Court have recently applied the Browning-Ferris and

Spirides tests to determine whether a joint employment relationship exists for purposes of Title

VII. See, e.g., Konah, 815 F. Supp. 2d at 71; Harris v. Attorney Gen., 657 F. Supp. 2d 1, 8-9

(D.D.C. 2009). And there is no indication in District of Columbia case law or in the statutory or

regulatory language of the DCHRA that it would be inappropriate to apply Title VII case law to

the plaintiff’s DCHRA claims. Indeed, the Browning-Ferris and Spirides tests were applied to

DCHRA claims in Konah. 815 F. Supp. 2d at 70-71. Accordingly, this Court concludes that the

Browning-Ferris and Spirides tests are the appropriate tests under which to analyze Title VII




                                                17
joint employment questions, which in turn makes those same tests applicable to the plaintiff’s

DCHRA claims. 3

         4.       Whether Howard was the Plaintiff’s Employer

         Under the Browning-Ferris test, the Court must determine whether Howard “‘retained for

itself sufficient control over the terms and conditions of [her] employment [even though she was]

employed by [UDC].’” Redd, 232 F.3d at 938 (citation omitted). And under Spirides, “an

employer/employee relationship is likely to exist” if the putative employer has the “right to

control the ‘means and manner’ of the worker’s performance.” 613 F.2d at 831-32. Howard

raises factual issues that might shed light on whether and to what extent it controlled the

plaintiff’s terms and conditions of employment. Specifically, Howard contends that it had only

the right to “concur” in hiring the plaintiff, and did not have any authority whatsoever to

terminate her employment. Howard’s Dismiss Mem. at 15. Howard contends further that it did

not control the plaintiff’s work schedule or conditions of employment, id. at 16, salary, benefits,

or methods of payment, id. at 17, or maintain any employment records concerning the plaintiff,

id. In making these arguments, Howard points to the D.C. Network Procedures, which are

referenced in the complaint and also attached to Howard’s motion to dismiss.

         The Procedures make clear that Howard has retained control over hiring individuals in

the plaintiff’s former position. Specifically, Howard “must concur in the appointment of the


3
  Even if the Court applied the test outlined in Radio & Television Broadcasting, 380 U.S. at 256, other courts have
noted that the joint employer “determination depends upon the particular facts and circumstances of each case, and
consequently the federal courts have varied somewhat in their application” of the criteria, Sheeran v. Am.
Commercial Lines, Inc., 683 F.2d 970, 978 (6th Cir. 1982) (collecting cases). And because “control of the essential
elements of labor relations is a prerequisite to the existence of a joint-employer relationship,” id. (citation omitted),
the Radio & Television Broadcasting test, like the Browning-Ferris and Spirides tests, ultimately presents a factual
question concerning the amount of control a putative joint employer has over an employee. The tests are thus not
materially different from one another.



                                                           18
Service Center Director.” Compl. ¶ 15 (emphasis added); Howard’s Dismiss Mem., Ex. A (The

District of Columbia Small Business Development Center Standard Operating Procedures

(“Procedures”)) § 2.5(1) (emphasis added); see also Compl. ¶¶ 16-17. And the April 7, 2011

Brown letter stated that if UDC terminated the plaintiff as suggested, “the final selection of a

new Service Center Director shall be subject to [Howard’s] approval.” Compl. ¶ 76 (emphasis

added); Howard’s Dismiss Mem., Ex. C (April 7, 2011 Letter (“Brown Letter”)) at 3 (emphasis

added). However, the complaint provides only conclusory allegations concerning Howard’s

ability to terminate the plaintiff’s employment. See, e.g., Compl. ¶ 108 (“Defendants jointly

controlled the terms and conditions of [the plaintiff’s] employment, including the authority to

discipline or terminate [her].”). What is clear from the current record is that Howard’s ability to

terminate the plaintiff’s employment was indirect, and through its ability to terminate the UDC

Service Center’s funding. See Compl. ¶ 101 (“Miles’ employment with UDC and Howard

would have continued but for Howard’s termination of the UDC sub-award.”); see also Pl.’s

Howard Opp’n at 12.

       The complaint also alleges that at one point while serving as director the plaintiff and

other Service Center Directors were attending monthly meetings with Turner, the former

Executive Director at Howard, Compl. ¶¶ 34, 41, and that “[d]uring [the] monthly meetings with

Turner, [she] was responsible for submitting a report outlining progress, successes, failures, and

an action plan to correct any failures or areas that were not on track to meet performance goals

outlined in the contract,” id. ¶ 35. Further, the plaintiff represents that she was required “to

attend and host certain meetings and workshops,” and was also subject to a “semi-annual review

of the performance of the” UDC Service Center by Turner and his staff. Id. ¶ 36. She also




                                                 19
alleges that at another point in time she was occasionally required to attend training meetings

hosted by Howard. Id. ¶¶ 50-51.

         The complaint makes no reference to Howard’s control of the plaintiff’s salary, benefits,

or methods of payment, or to the maintenance of any employment records concerning the

plaintiff. 4 See generally Compl. Rather, the plaintiff argues that Howard maintained indirect

control over her salary and benefits through its “control over the sub-grant amount.” Pl.’s

Howard Opp’n at 13 (citing Compl. ¶ 10 (“The amount of Howard’s grant is measured by agreed

upon performance goals between the [Small Business Association] and Howard.”)).

         Taking the plaintiff’s nonconclusory allegations as true, as the Court must do at this stage

of the case, Iqbal, 556 U.S. at 678-79, the Court cannot determine with certainty that Howard

and UDC were not joint employers of the plaintiff. Rather than clarifying the question of joint

employment, the documents quoted extensively and incorporated in the complaint, as well as

those same documents attached to Howard’s motion to dismiss, create a factual issue. See, e.g.,

Boire v. Greyhound Corp., 376 U.S. 473, 481 (1964) (“Whether [the putative employer]

possessed sufficient indicia of control to be an ‘employer’ is essentially a factual issue.”); Brown

v. Corr. Corp. of Am., 603 F. Supp. 2d 73, 79 (D.D.C. 2009) (“Determining whether [the

defendants] were [the] plaintiff’s joint employers . . . . [is] a factual issue [that] is plainly

inappropriate to resolve on a motion to dismiss pursuant to Rule 12(b)(6).”); Coles v. Harvey,

471 F. Supp. 2d 46, 51 (D.D.C. 2007) (finding that the plaintiff “sufficiently pled that she was a

4
 In a footnote in her opposition to Howard’s motion to dismiss, the plaintiff states that “[w]hile not specifically
alleged in her complaint, the [Procedures] . . . require[] [Howard] to maintain personnel files containing details on
discipline, training and other information for each employee including [the] Service Center Directors.” Pl.’s
Howard Opp’n at 13 n.2. She further alleges that “Howard omitted these pages from its Exhibit A” and that she will
“add these details” if she is permitted to amend her complaint. Id. The Court will not take these allegations into
consideration, because it is axiomatic that the plaintiff may not amend her complaint through facts first alleged in an
opposition brief. See, e.g., Sloan v. Urban Title Servs., Inc., 689 F. Supp. 2d 94, 114 (D.D.C. 2010).



                                                          20
joint employee” of two employers and the “[d]efendant’s factual assertions do not establish the

contrary as a matter of law”); cf. Dean v. Am. Fed’n of Gov’t Emps., Local 476, 549 F. Supp. 2d

115, 122 (D.D.C. 2008) (observing that the court had a factual record upon which to conduct the

joint employer test because “discovery has already been conducted” and the “[p]laintiff has had

the opportunity to proffer all relevant evidence regarding the” employment relationship).

Tellingly, the majority of the cases cited in support of Howard’s arguments that it did not employ

the plaintiff address motions for summary judgment. 5 See Howard’s Dismiss Mem. at 12-20.

         The plaintiff’s allegations have established that Howard retained at least some control

over the terms and conditions of her employment, and the Court is not convinced by Howard’s

statements to the contrary that the amount of control that Howard retained for itself was

insufficient as a matter of law to overcome the plaintiff’s allegations. Accordingly, the Court

assumes at this stage of the proceedings that the plaintiff was jointly employed by both Howard

and UDC for purposes of the FMLA, DCFMLA, and the DCHRA. 6




5
  The cases cited by Howard that address motions to dismiss are either easily distinguished from the facts alleged by
the plaintiff, or reach the same conclusion that this Court reaches. See Konah, 815 F. Supp. 2d at 70-71 (plaintiff’s
complaint did “not allege . . . that she was employed by the District of Columbia,” included no facts from which the
court could conclude that the District of Columbia might be the plaintiff’s employer, and the plaintiff instead
“ask[ed] the court to allow discovery against the District, which might ultimately show that the District acted as a
joint employer”); Jensen v. AT&T Corp., No. 4:06-CV-842, 2007 WL 3376893, at *2-3 (E.D. Mo. Nov. 13, 2007)
(plaintiff’s complaint failed to allege that putative employer had any control over her employment); Coles, 471 F.
Supp. 2d at 51 (finding a genuine issue of fact as to whether the defendants jointly employed the plaintiff and
declining to resolve the issue on a motion to dismiss).
6
  Howard argues in a footnote that the Court should disregard the plaintiff’s allegations “[t]o the extent that [they] . .
. conflict with the contents of the [Procedures].” Howard’s Dismiss Mem. at 15 n.5 (citing Scott v. United States,
608 F. Supp. 2d 73, 81 (D.D.C. 2009)). In particular, Howard references the plaintiff’s “allegation that Howard had
joint authority with UDC to discipline or terminate” her. Id. Unlike in Scott, where the plaintiffs alleged that they
had not received notices of a tax lien but attached to their complaint documents referencing the very notices about
which they complained, id., the plaintiff’s allegations here are not conclusively contradicted by the Procedures.



                                                           21
B.     Whether the Plaintiff has Stated Claims Under the FMLA or the DCFMLA

       The FMLA provides that “an eligible employee shall be entitled to a total of 12

workweeks of leave during any 12-month period . . . [b]ecause of the birth of a son or daughter

of the employee and in order to care for such son or daughter.” 29 U.S.C. § 2612(a)(1)(A). In

cases where a birth is “foreseeable,” the Act requires that employees who exercise their right to

leave because of the birth “provide the employer with not less than 30 days’ notice, before the

date of the leave is to begin.” Id. § 2612(e)(1). However, “if the date of the birth . . . requires

leave to begin in less than 30 days, the employee shall provide such notice as is practicable.” Id.

The DCFMLA provides similar rights and notice obligations, although employees are entitled to

“16 workweeks during any 24-month period.” D.C. Code §§ 32-502(a)(1), (f). With certain

exceptions, both the FMLA and the DCFMLA require that an employee returning from

authorized leave be reinstated to the same position or an equivalent position as the one she had at

the time that her leave commenced. 29 U.S.C. § 2614(a); D.C. Code § 32-505(d).

       There are two types of claims for alleged violations of the FMLA. First, the Act makes it

“unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to

exercise, any right provided” by the Act. § 2615(a)(1). Second, the act makes it unlawful for an

employer to “discharge or in any other manner discriminate against any individual for opposing

any practice made unlawful” by the Act, § 2615(a)(2), and further prohibits “any person” from

“discharg[ing] or in any other manner discriminat[ing] against any individual” who, in

connection with any proceedings or inquiries under the FMLA, “filed any charge or . . . instituted

or caused to be instituted any proceeding”; “[gave], or is about to give information”; or

“testified, or is about to testify,” §§ 2615(b)(1)-(3). Courts refer to these two types of claims

respectively as “interference claims” and “retaliation claims.” See, e.g., Ghawanmeh v. Islamic

                                                  22
Saudi Acad., 857 F. Supp. 2d 22, 36 (D.D.C. 2012) (citing, among others, Breeden v. Novartis

Pharm. Corp., 646 F.3d 43, 49-55 (D.C. Cir. 2011)). The DCFMLA similarly provides for

separate interference and retaliation claims. See D.C. Code § 32-507.

       1.      The Plaintiff’s Retaliation Claims

       FMLA and DCFMLA retaliation claims are analyzed under the familiar burden-shifting

framework set forth in McDonnnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under the

McDonnell Douglas framework, a plaintiff “may establish a prima facie case creating a

presumption of retaliation by showing ‘(1) that [s]he exercised rights afforded by the [FMLA],

(2) that [s]he suffered an adverse employment action, and (3) that there was a causal connection

between the exercise of [her] rights and the adverse employment action.’” Roseboro v.

Billington, 606 F. Supp. 2d 104, 109 (D.D.C. 2009) (second alteration in original) (citation

omitted). “For purposes of establishing a prima facie case of retaliation, ‘temporal proximity can

indeed support an inference of causation, but only where the two events are very close in time.’”

Hamilton v. Geithner, 666 F.3d 1344, 1357 (D.C. Cir. 2012) (citation omitted). If the plaintiff

has successfully established a prima facie case, it follows that she has “state[d] a claim upon

which relief can be granted,” Fed. R. Civ. P. 12(b)(6), and it would thus be inappropriate to grant

a motion to dismiss her claims.

       As to the first element, the plaintiff argues, among other things, that her discussions with

Lee and Mitchell during which she “object[ed] to the [April 7, 2011 Brown letter] and Howard’s

call for her ouster” constituted the requisite “opposition to a prohibited practice.” Pl.’s UDC

Opp’n at 13 (citing Compl. ¶¶ 79, 83-89). In the Title VII context, “protected activity

encompasses utilizing informal grievance procedures, such as complaining to management or

human resources about . . . discriminatory conduct.” Warner v. Vance-Cooks, __ F. Supp. 2d __,


                                                23
__, 2013 WL 3835116, at *14 (D.D.C. 2013). Indeed, “it is well settled that . . . informal, as

well as formal, complaints” are protected under Title VII, Richardson v. Guitierrez, 477 F. Supp.

2d 22, 27 (D.D.C. 2007), and courts have held that informal complaints are protected under other

similar anti-retaliation statutory provisions, as well, see, e.g., Barber v. CSX Distrib. Servs. 68

F.3d 694, 702 (3d Cir. 1995) (“[W]e do not require a formal letter of complaint to an employer

or the EEOC as the only acceptable indicia of the requisite ‘protected conduct’ under the [Age

Discrimination in Employment Act].”); Cooke v. Roskenker, 601 F. Supp. 2d 64, 74 (D.D.C.

2009) (collecting cases from the First, Third, Sixth, Eighth, Ninth, Tenth, and Eleventh Circuits

that held that the anti-retaliation provision of the FLSA protects informal complaints). The

Court sees no reason to treat FMLA retaliation claims differently. The plaintiff’s complaint

clearly indicates that she had spoken with two human resources individuals at UDC, as well as

with her own supervisor and that among other things, she discussed her concerns about being

required to work while on FMLA leave. See Compl. ¶¶ 86, 89. She also expressed in an email

to Mahone that she had not responded to an earlier email he had sent her because she was

advised by someone in human resources that he would cease contacting her while she was on

leave. See id. ¶¶ 86-88. These complaints sufficiently establish that the plaintiff engaged in

activity protected by the FMLA and the DCFMLA.

       The second element is satisfied here because, regardless of any other alleged employment

actions, there is no dispute that the termination of the plaintiff’s employment was an adverse

employment action.

       As to the third element, the issue presented is whether the facts plausibly suggest a causal

connection between the exercise of her rights and the termination of her employment. Given the

short period of time between April 2011, when the plaintiff’s leave commenced and when she

                                                  24
complained, albeit informally, about Mahone’s interference with her DCFMLA and FMLA

leave, and June 2011, when the plaintiff’s employment was terminated, causation can be

inferred, at least in part, from the temporal proximity of the two events. Hamilton, 666 F.3d at

1357-58. Indeed, this Circuit has recognized that a plaintiff established a prima facie case for

retaliation under the FMLA where the plaintiff alleged that “[s]he planned to engage in

statutorily protected activity (i.e. maternity leave); her employer took adverse action (she was

fired); and there [was] evidence of a causal connection between these two events,” where these

two events were “sufficiently close in time” because they took place “only a few weeks” apart.

Gleklen v. Democratic Congressional Campaign Comm., Inc., 199 F.3d 1365, 1368 & n.3 (D.C.

Cir. 2000). Accordingly, the plaintiff has pleaded a prima facie case of retaliation under both the

FMLA and the DCFMLA and the Court must therefore deny the defendants’ motions to dismiss

the plaintiff’s retaliation claims.

        2.      The Plaintiff’s Interference Claims

        “To state a prima facie claim of interference with any substantive right provided by the

FMLA, an employee must demonstrate, by a preponderance of the evidence, that she was

entitled to the right allegedly denied.” Gaghan v. Guest Servs., Inc., No. 0301096HHK, 2005

WL 3211591, at *3 (D.D.C. Oct. 26, 2005) (citing Strickland v. Water Works & Sewer Bd., 239

F.3d 1199, 1206-07 (11th Cir. 2001); Bachelder v. Am. West. Airlines, Inc., 259 F.3d 1112,

1125 (9th Cir. 2001)).

        Here, the plaintiff alleges that UDC approved her request for FMLA leave. See Compl. ¶

73 (“UDC granted [the plaintiff] FMLA medical leave from on or about April 3, 2011, through

on or about June 14, 2011.”); see also id. ¶ 58 (discussing the plaintiff’s request for DCFMLA

leave). Nowhere does the plaintiff allege that her request to take FMLA leave was denied, or


                                                25
that she was granted leave either for fewer weeks than she was entitled to take or for fewer

weeks than she had requested.

       However, the plaintiff does allege that she was denied her right to reinstatement because

her position was terminated and she was not “restored to an equivalent position” with UDC or

with Howard. See, e.g., Compl. ¶¶ 115-16, 128-29. And the FMLA and the DCFMLA make

clear that employees who take authorized leave are entitled to reinstatement to the same or an

equivalent position upon returning to work. 29 U.S.C. § 2614(a); D.C. Code § 32-505(d).

       UDC argues, however, that the plaintiff has failed to state a claim for interference

because she was no longer eligible for reinstatement “upon [Howard’s] termination of the sub-

grant.” UDC’s Dismiss Mem. at 11. Howard similarly argues that the plaintiff lost the right to

reinstatement upon the termination of the sub-grant. Howard’s Dismiss Mem. at 20-22. But the

law is clear that while there is no right to reinstatement upon a lawful termination of

employment, an unlawful termination cannot serve as a defense to an FMLA or DCFMLA claim.

See Wash. Convention Ctr. Auth. v. Johnson, 953 A.2d 1064, 1078 (D.C. 2008) (“We cannot

conclude that [an] . . . unlawful[] termination establishes a defense to the DCFMLA claim.”);

Hopkins v. Grant Thronton Int’l, 851 F. Supp. 2d 146, 155 (D.D.C. 2012) (“Rights to FMLA

leave . . . do not protect an employee’s job against a legitimate, unrelated, reason for separation

from employment.” (emphasis added) (citing cases from the Third, Fourth, Fifth, Sixth, Seventh,

Eighth, and Tenth Circuits)). Several federal courts “have concluded that an employer has the

burden of proving that an employee dismissed during FMLA leave would have been dismissed

regardless of the employee’s request for leave.” Id. at 156 (citing cases from the Eighth, Ninth,

and Tenth Circuits); see also 29 C.F.R. § 825.216(a) (“An employer must be able to show that an




                                                 26
employee would not otherwise have been employed at the time reinstatement is requested in

order to deny restoration to employment.”).

       The plaintiff here alleges that UDC’s sub-award and her employment were terminated

because of her complaints, while the defendants contend that she was terminated solely because

Howard terminated UDC’s sub-award and would have done so regardless of the plaintiff’s

complaints. On this record dismissal of the plaintiff’s interference claims would be inappropriate

because there is a dispute as to the circumstances surrounding the plaintiff’s termination. Indeed,

as discussed above, the Court finds that the plaintiff has stated a cause of action for retaliation in

violation of the FMLA and the DCFMLA, which in turn calls into question the legitimacy of her

termination. The Court must therefore deny the defendants’ motions to dismiss the plaintiff’s

FMLA and DCFMLA interference claims.

C.     Whether the Plaintiff has Stated a Claim Under the DCHRA

       Under the DCHRA, it is “an unlawful discriminatory practice [for an employer] to”

discharge an employee “wholly or partially for a discriminatory reason based upon the

[employee’s] actual or perceived: . . . sex . . . [or] family responsibilities.” D.C. Code § 2-

1402.11(a)(1). The Act explicitly states that claims for discrimination based on sex “include . . .

discrimination on the basis of pregnancy, childbirth, or related medical conditions.” Id. § 2-

1401.05(a). The DCHRA further clarifies that “family responsibilities” refer to “the state of

being, or the potential to become, a contributor to the support of a person or persons in a

dependent relationship.” Id. § 2-1401.02(12).

       To establish a prima facie case of discrimination under the DCHRA,

       a plaintiff must show that (1) she is a member of a protected class, (2) she
       suffered an adverse employment action, and (3) the unfavorable action gives rise



                                                 27
       to an inference of discrimination, that is, an inference that her employer took the
       action because of her membership in a protected class.

Brown v. Dist. of Columbia, 919 F. Supp. 2d 105, 115 (D.D.C. 2013) (citing, among others,

Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 850 (D.C. Cir. 2006)); see also Hamilton v.

Howard Uni., 960 A.2d 308, 314 n.6 (D.C. 2008). A plaintiff’s allegations create an inference of

discrimination where they “‘point to a worker’” outside of the plaintiff’s protected class “‘whose

employment situation was nearly identical, but who was treated more favorably.’” Williams,

407 F. Supp. 2d at 6 (citation omitted).

       It is undisputed that the plaintiff is a member of two protected classes. See, e.g., Compl.

¶ 131 (“[The plaintiff] was a member of a protected class because she is a female who required

leave due to pregnancy and childbirth. [She] is also a member of a protected class because she

has family responsibilities associated with caring for a newborn child who resides with her.”);

Howard’s Dismiss Mem. at 22-23; UDC’s Dismiss Mem. at 6-8. Nor is there any question

whether the plaintiff’s termination constituted an adverse employment action. See Compl. ¶ 98;

Howard’s Dismiss Mem. at 23; UDC’s Dismiss Mem. at 6-8. The central issue then is whether

“the unfavorable action gives rise to an inference of discrimination, that is, an inference that her

employer took the action because of her membership in a protected class.” Brown, 919 F. Supp.

2d at 115.

       The plaintiff’s allegations here are sufficient to raise an inference of discrimination. The

complaint alleges that “other Service Centers had similar performance problems” as those

experienced by the UDC Service Center “but were not placed on probation or subject to

termination.” Compl. ¶ 101. And the complaint contends that “[w]ith the exception of UDC,

Howard renewed all of the Service Center sub-awards for 2012, despite their similar



                                                 28
performance records and contractual breaches.” Id. ¶ 102. Most significantly, the plaintiff

asserts that “[a]t least one other . . . Service Center had a vacancy in the position of Service

Center Director and Small Business Advisor for a substantial period of time.” Id. ¶ 134; see also

id. ¶¶ 53-54 (discussing a vacancy in the Service Center Director position at the D.C. Chamber

of Commerce Service Center beginning in January 2011, and alleging that the Chamber of

Commerce Service Center “referred clients to other Service Centers” during the pendency of the

vacancy); id. ¶ 77 (“As of April 7, 2011, other . . . Service Centers were seriously deficient in

meeting their goals and also had experienced extended vacancies in both the Director and

Business Advisor positions but they were not placed on probation.”). Neither Howard nor UDC

disputes these allegations. When these allegations are considered along with the statements in

the Brown letter that appear to equate the plaintiff’s maternity leave with “abandon[ing] the

[UDC] [S]ervice [C]enter and its clients,” as well as the fact that these statements were followed

by a suggestion that the plaintiff should be terminated from her position as part of an effort to

improve the functioning of the UDC Service Center, the Court finds that the plaintiff’s

allegations are sufficient collectively to raise an inference of discrimination under the DCHRA.

Accordingly, the Court will deny the defendants’ motions to dismiss the plaintiff’s DCHRA

claim.

D.       The Plaintiff’s Motion for Leave to Amend Her Complaint

         The plaintiff seeks “leave to amend her Complaint to clarify issues of [her] joint

employment and to add a fourth count for gender discrimination under Title VII.” Pl.’s Mem.

¶ 7. The defendants oppose the amendments on two grounds. They first argue that the

amendments would be futile because the plaintiff’s new allegations would fail to state a claim.

UDC’s Opp’n at 3; Howard’s Opp’n at 7-12. Second, the defendants contend that the


                                                 29
amendments would be futile because the plaintiff’s failure to file the claim within the ninety-day

filing period requirement of Title VII bars her claims from consideration as a matter of law.

UDC’s Opp’n at 4; Howard’s Opp’n at 12-15.

        Because the Court has denied the defendants’ motions to dismiss the plaintiff’s DCHRA

claims, and because “DCHRA claims are generally scrutinized under the same legal framework

used by courts to analyze claims under Title VII,” Konah, 815 F. Supp. 2d at 71, the Court

rejects the defendants’ arguments about the futility of the new allegations.

        As to the question of timeliness, it is well established that “[t]he filing time limit imposed

by Title VII, 42 U.S.C. § 2000e-16(c), ‘is not a jurisdictional requirement but rather is similar to

a statute of limitations.’” Colbert v. Potter, 471 F.3d 158, 167 (D.C. Cir. 2006) (citation

omitted). The ninety-day filing limit is thus “‘subject to . . . equitable tolling.’” Id. (citation

omitted). Courts “‘have allowed equitable tolling in situations where the claimant has actively

pursued [her] judicial remedies by filing a defective pleading during the statutory period, . . .

[but] have generally been much less forgiving in receiving late filings where the claimant failed

to exercise due diligence in preserving [her] legal rights.’” Wiley v. Johnson, 436 F. Supp. 2d

91, 96 (D.D.C. 2006) (quoting Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990)). And

“to apply equitable tolling, the plaintiff must have exercised due diligence and h[er] excuse for

the delayed filing must be ‘more than a garden variety claim of excusable neglect.’” Id. (citation

omitted).

        The plaintiff here “‘has actively pursued [her] judicial remedies by filing a defective

pleading during the statutory period.’” Wiley, 436 F. Supp. 2d at 96 (citation omitted).

Specifically, she filed her amended complaint on August 27, 2012, which was within the Title

VII ninety-day filing period, but doing so was improper and ran afoul of Federal Rule of Civil

                                                   30
Procedure 15 because she failed to first obtain the defendants’ consent or seek leave of the Court.

See Howard’s Consent Mot. at 1. She thus withdrew her amended complaint, see Pl.’s Withdraw

Mot. at 1; September 14, 2012 Minute Order (granting the plaintiff’s motion to withdraw), and

thereby lost the benefit of filing within the statutorily required period.

           However, the defendants were on notice that the EEOC had issued the plaintiff a

Dismissal and Notice of Rights. Pl.’s Mem. ¶ 4. And both defendants first consented to the

plaintiff’s motion to withdraw her amended complaint, see Howard’s Consent Mot. at 1; UDC’s

Consent Mot. at 1, but now argue that the withdrawal of the amended complaint has barred the

plaintiff from alleging any claims under Title VII. Considering the plaintiff’s attempt to file her

amended complaint within the Title VII ninety-day filing period, the absence of any evidence of

bad faith on the part of the plaintiff, and the fact that both defendants were on notice of the

claims, and thus cannot claim that they would somehow be prejudiced by the filing of the

amended complaint, the Court finds that equitable tolling is appropriate in this situation.

           Accordingly, because courts should grant leave to amend “freely,” Fed. R. Civ. P. 15(a),

and because the circumstances here do not suggest the presence of “undue delay, bad faith,

undue prejudice to the opposing party, repeated failure to cure deficiencies, or futility,”

Richardson, 193 F.3d at 548-49, the Court grants the plaintiff’s motion to amend her complaint.

                                               IV. CONCLUSION

           For the foregoing reasons, the Court denies the defendants’ motions to dismiss and grants

the plaintiff’s motion to amend her complaint. 7




7
    The Court will contemporaneously issue an Order consistent with the Memorandum Opinion.



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SO ORDERED this 30th day of October, 2013.

                                        REGGIE B. WALTON
                                        United States District Judge




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