                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA



 TAUNYA V. JOHNSON,

         Plaintiff,

                 v.                                       Civil Action No. 13-1445 (JDB)
 DISTRICT OF COLUMBIA,

         Defendant.


                                 MEMORANDUM OPINION

       The District of Columbia has moved to dismiss plaintiff Taunya Johnson’s First Amended

Complaint alleging a Title VII race discrimination claim. Johnson opposes that motion and,

alternatively, requests leave to amend her complaint a second time in order to include additional

factual allegations. The District asserts that leave to amend should be denied because the proposed

amendments pose an undue delay to the litigation and are futile. The Court finds both of these

arguments unavailing.    Accordingly, Johnson’s motion for leave to file a second amended

complaint will be granted, and the District’s motion to dismiss will be denied as moot.

                                        BACKGROUND

       Johnson was an employee of the District of Columbia Metropolitan Police Department

from 2002 until her termination in 2011. First Am. Compl. [ECF No. 13] ¶¶ 1, 12, 15. Before her

termination, she was ordered to appear before an MPD panel in light of allegations that she had

made false statements. Id. ¶ 13. The MPD panel determined that she had in fact made these false

statements, and recommended to the Chief of Police that she be terminated—a recommendation

that the Chief of Police accepted. Id. ¶¶ 14, 15. Johnson was accordingly fired on or around March


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25, 2011, id. ¶ 15. In response, Johnson sought administrative relief from the Equal Employment

Opportunity Commission, but the agency dismissed her claim on June 24, 2013. Id. ¶ 8.

        Approximately three months later, Johnson filed a complaint with this Court, bringing

various hostile work environment and employment discrimination claims, including a Title VII

claim. The District moved to dismiss all of the claims—except for her Title VII employment

discrimination claim—and the Court granted the District’s motion in its entirety. With leave of

the Court, Johnson filed her First Amended Complaint several weeks later, focusing on the Title

VII claim alone. See First Am. Compl. The District has now moved to dismiss that complaint.

See Def.’s Mot. [ECF No. 16]. Johnson opposed the District’s motion, arguing that her First

Amended Complaint was sufficient to state a Title VII claim. See Pl.’s Opp. [ECF No. 18]. But,

in the alternative, she also requested leave to amend her complaint a second time in order to

supplement its factual allegations. Id. at 11. Johnson attached a proposed Second Amended

Complaint—including some more robust allegations—to her opposition. See Proposed Second

Am. Compl. [ECF No. 18-2]. The first new allegation is that “[f]rom 2008 to 2011, five White

similarly situated members were charge [sic] with and found guilty of making untrue statements.

None of those White members were terminated.” Id. ¶ 17. Johnson also alleges that:

        [E]ach of the similarly situated DCMDP officers (White) who have committed
        and/or been charged with the same, similar or more egregious misconduct as
        Plaintiff and were not ordered before a Trial Board and/or terminated are believed
        to be nearly identical to Plaintiff in their facts and circumstances, including but not
        limited to having been subject to the same standards and have engaged in the same
        or similar conduct without any differentiating circumstances.

Id. ¶ 19.

        The District filed a reply, in which it offered arguments in further support of its motion to

dismiss the First Amended Complaint, and in opposition to Johnson’s request for leave to file her

proposed Second Amended Complaint. See Def.’s Reply [ECF No. 19]. On the latter front, the

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District argued that allowing a second amendment would be futile—because even the proposed

Second Amended Complaint fails to state a claim—and represents undue delay. Id. at 3–5.

                                      LEGAL STANDARD

       The Court will address the parties’ respective arguments in the context of Johnson’s motion

for leave to file her proposed Second Amended Complaint, rather than the District’s motion to

dismiss the First Amended Complaint. See Driscoll v. George Washington Univ., 42 F. Supp. 3d

52, 57 (D.D.C. 2012) (stating that although a motion to dismiss both the plaintiff’s first amended

complaint and plaintiff’s motion for leave to file a second amended complaint were before the

court, the court would begin with the motion for leave to amend and address only the second

amended complaint in that context).

       Federal Rule of Civil Procedure 15(a), which governs the amendment of pleadings,

provides that leave to file an amended complaint should be “freely give[n] . . . when justice so

requires.” Fed. R. Civ. P. 15(a)(2). Thus, although the decision to grant a motion to amend is

within the district court’s discretion, Walker v. Pharm. Research & Mfrs. of Am., 256 F.R.D. 234,

238 (D.D.C. 2009), it is an abuse of discretion for the court to deny leave without “provid[ing] a

sufficiently compelling reason,” Robinson v. Detroit News, Inc., 211 F. Supp. 2d 101, 113–14

(D.D.C. 2002). Such reasons may include “undue delay, bad faith or dilatory motive on the part

of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue

prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of

amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962). Generally, under Rule 15(a) the non-

movant bears the burden of persuasion that a motion to amend should be denied. See Dove v.

Wash. Metro. Area Transit Auth., 221 F.R.D. 246, 247 (D.D.C. 2004).




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                                               ANALYSIS

       The Court concludes that leave to amend should be granted. In the first place, amendment

would not prejudice the District. “The most important factor the Court must consider when

deciding whether to grant a motion for leave to amend is the possibility of prejudice to the opposing

party.” Djourabchi v. Self, 240 F.R.D. 5, 13 (D.D.C. 2006); see also Heller v. District of Columbia,

290 F.R.D. 1, 5 (D.D.C. 2013) (quoting 6 Wright et al., Federal Practice & Procedure § 1487 (3d

ed. 2015) (“[I]f the court is persuaded that no prejudice will accrue, the amendment should be

allowed.” Courts may find prejudice where discovery has already begun, and “the amended

complaint contains new complex and serious charges which would undoubtedly require additional

discovery for the defendants to rebut.” Dave v. District of Columbia, 811 F. Supp. 2d 111, 120

(D.D.C. 2011) (internal quotation marks and alterations omitted); see also Darbeau v. Progressive

Tech. Fed. Sys., Inc., No. 06-1081, 2007 WL 744726, at *1 (D.D.C. Mar. 7, 2007) (finding that

the defendant would not be prejudiced by plaintiff’s proposed amendment, “[s]ince no discovery

has been taken to date”). Amendment may also prejudice the defendant where it would “expand

the allegations beyond the scope of the initial complaint.” Dave, 811 F. Supp. 2d at 120 (internal

quotation marks omitted).

       None of that applies here. For one, discovery has not yet begun. Thus, Johnson’s proposed

amendments at “this early [stage] in the proceedings will not markedly change the course of the

litigation.” Norris v. Salazar, 746 F. Supp. 2d 1, 4 (D.D.C. 2010). Moreover, Johnson’s proposed

amendments do not represent an expansion of the original complaint. Instead, they consist only

of two additional factual allegations pertaining to “similarly situated” white employees of the

MPD. See Proposed Second Am. Compl. at ¶ 16. They are, in other words, “based on the same

nucleus of facts set forth in the [First] Amended Complaint.” Council on Am.-Islamic Relations



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Action Network, Inc. v. Gaubatz, 891 F. Supp. 2d 13, 31 (D.D.C. 2012). If anything, these

amendments serve to clarify Johnson’s allegations of discriminatory treatment, as they provide

detail on the number of white employees who allegedly committed “similar or more egregious

conduct” without being called before the MPD panel or terminated. Id. at ¶¶ 17, 19. In fact, the

District may be “benefited by the additional specificity [Johnson] provides in [her] proposed

second amended complaint.” Driscoll, 42 F. Supp. 3d at 57; see also Council on Am.-Islamic

Relations Action Network, Inc. v. Gaubatz, 793 F. Supp. 2d 311, 326 (D.D.C. 2011) (finding that

the plaintiff’s proposed amendments would not cause the defendant any undue prejudice, because

the proposed changes ultimately “benefit[ted] the . . . Defendants by providing them with greater

notice of what Plaintiffs’ claims [were] and the grounds upon which they rest[ed]”). Accordingly,

because discovery has not yet taken place and Johnson’s proposed amendments are squarely within

the scope of her initial Title VII claim, the amendments will not unduly prejudice the District.

       Viewed in this context, the District’s argument that amendment would unduly delay the

litigation is unpersuasive. See Clark v. Feder Semo & Bard, P.C., 560 F. Supp. 2d 1, 5 (D.D.C.

2008) (“[T]he contention of undue delay is less persuasive in light of the lack of any prejudice.”).

The length of litigation cannot, on its own, justify denying leave to amend. See Caribbean, 148

F.3d at 1084. Only slightly over two months elapsed between Johnson’s First Amended Complaint

and her request for leave to amend it. And a two-month delay, in the absence of any other factors

indicating potential prejudice, is an insufficient reason to deny the plaintiff’s request for leave to

amend. See Nat’l Black Chamber of Commerce v. Busby, 795 F. Supp. 2d 1, 6 (D.D.C. 2011)

(“Although approximately five months have elapsed since the plaintiff filed its first amended

complaint, it is nonetheless unlikely that any undue prejudice will arise from amendment at this




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early stage in the litigation.”); see also Clay v. District of Columbia, No. 09–1612, 2010 WL

3894591, at *3 (D.D.C. Sept. 30, 2010) (allowing amendment despite a five-month delay).

        The District also argues that Johnson’s motion to amend should be denied because the

amendments are futile. Def.’s Reply at 5.1 But the District has not met its burden here. “An

amendment is futile if the proposed claim would not survive a motion to dismiss.” Smith v. Cafe

Asia, 598 F. Supp. 2d 45, 48 (D.D.C. 2009) (internal quotation marks omitted). For practical

purposes, review for futility is identical to that for a Rule 12(b)(6) motion to dismiss. Driscoll, 42

F. Supp. 3d at 57. When reviewing a Rule 12(b)(6) motion to dismiss, a “court must assume all

the allegations in the complaint are true (even if doubtful in fact)” and “must give the plaintiff the

benefit of all reasonable inferences derived from the facts alleged.” Aktieselskabet AF 21. Nov.

2001 v. Fame Jeans Inc., 525 F.3d 8, 18 (D.C. Cir. 2008) (internal quotation marks and citation

omitted). A plaintiff must provide “more than labels and conclusions” or “a formulaic recitation

of the elements of a cause of action,” but “detailed factual allegations” are not necessary. Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).

        Indeed, a plaintiff alleging a Title VII race discrimination claim “faces a relatively low

hurdle at the motion to dismiss stage.” Terveer v. Billington, 34 F. Supp. 3d 100, 116 (D.D.C.

2014) (internal quotation marks and citation omitted). A plaintiff need not plead the elements of

a Title VII prima facie case, as it “is an evidentiary standard, not a pleading requirement.” Howard

v. Fenty, 580 F. Supp. 2d 86, 91 (D.D.C. 2008) (quoting Swierkiewicz v. Sorema N.A., 534 U.S.

506, 510–11 (2002)). Rather, at this stage, a claim has sufficient “factual heft” when it includes

two basic assertions: that the plaintiff suffered an adverse employment action, and that this was



        1
            Although the Court’s analysis is focused on the proposed Second Amended Complaint, because the
District’s arguments in support of its motion to dismiss the First Amended Complaint are applicable to Johnson’s
motion to amend, the Court will consider these arguments in its analysis.

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because of the plaintiff’s race. See Plummer v. Safeway, Inc., 934 F. Supp. 2d 191, 196 (D.D.C.

2013); see also 42 U.S.C. § 2000e-2(a)(1). Thus, when a pleading contains these two allegations,

they are not deemed conclusory, but rather provide enough support to “nudge[ ] . . . claims across

the line from conceivable to plausible.” Bell Atl. v. Twombly, 550 U.S. 544, 570 (2007). In

Ghawanmeh v. Islamic Saudi Academy, for instance, the plaintiff’s allegation that “[o]ther

similarly situated teachers who also happen[ed] to be Saudi Arabian nationals were not so

dismissed [while the plaintiff, a non-Saudi, was dismissed],” provided enough support to establish

a Title VII claim. 672 F. Supp. 2d 3, 15–16 (D.D.C. 2009).

       So, too, here Johnson has included factual, not conclusory, allegations in her proposed

Second Amended Complaint. She alleges that “she was ordered to face an administrative

proceeding before a MPD panel . . . for allegedly making false statements,” and that she was

subsequently terminated. Proposed Second Am. Compl. ¶¶ 13, 15. She further contends that “five

White similarly situated members were charge[d] with and found guilty of making untrue

statements,” but that “[n]one of those White members were terminated” despite “hav[ing]

committed similar or more egregious misconduct.” Id. ¶¶ 17–18.

       The District fails to show that these allegations fall short of the basic requirements for

pleading a Title VII claim. First, Johnson’s termination constitutes an adverse employment action.

Saint-Jean v. District of Columbia, 844 F. Supp. 2d 16, 21 (D.D.C. 2012) (“Suspensions without

pay and terminations clearly constitute adverse employment action.”).          Additionally, her

allegations that similarly situated white employees were not terminated may give rise to an

inference that she experienced this adverse employment action due to her race. See Bryant v.

Pepco, 730 F. Supp. 2d 25, 30 (D.D.C. 2010) (finding that the plaintiff’s complaint supported a

plausible inference that he faced an adverse employment action because he was African American,



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where he alleged “(1) that his duties were given to a white Lead, (2) that he was demoted because

of his race, and (3) that white Leads were allowed to choose their own on-call assignments while

African American Leads were not”).            The District’s argument that Johnson’s proposed

amendments are “conclusory allegations” is therefore misguided. Nor does Johnson’s failure to

provide “the names or circumstances of any of the false statements made by the White employees,”

Def.’s Reply at 4, render her Title VII claim deficient, see Ghawanmeh, 672 F. Supp. 2d at 15–16

(holding that even though the plaintiff, a non-Saudi Arabian national, failed to identify the names

of the Saudi Arabian nationals who had allegedly not faced the same adverse employment decision

that the plaintiff had, the plaintiff’s Title VII claim nevertheless still withstood defendant’s motion

to dismiss because “the allegations g[a]ve notice to defendant that plaintiff [was] asserting that she

was treated differently from Saudis”). As “a complaint in an employment discrimination lawsuit

[need] not contain specific facts establishing a prima facie case of discrimination,” Kangethe v.

District of Columbia, 953 F. Supp. 2d 194, 199 (D.D.C. 2013) (internal quotation marks and

citation omitted), the degree of detail that the District argues Johnson’s complaint should have

included is not necessary here, Hajjar-Nejad, 873 F. Supp. 2d at 9. Rather, it may more properly

be a subject for discovery. Stokes v. Cross, 327 F.3d 1210, 1216 (D.C. Cir. 2003) (citing

Swierkiewicz, 534 U.S. at 512–13).

       The District also contends that Johnson has not satisfied this pleading standard because the

complaint includes a non-discriminatory reason for her termination. Def.’s Reply at 3. It is true

that, under the burden-shifting framework established in McDonnell Douglas Corp. v. Green, a

plaintiff must eventually show that an employer’s offered reason for an adverse employment action

was merely a pretext for discrimination. 411 U.S. 792, 802 (1973). “None of this, however, has

to be accomplished in the complaint itself . . . . [A] complaint need not offer any evidence of



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pretext.” Winston v. Clough, 712 F. Supp. 2d 1, 10 (D.D.C. 2010) (internal quotation marks

omitted). The District therefore bases its argument on a higher standard than that to which

Johnson’s pleading is held at the motion-to-dismiss stage. And because the District has failed to

show that Johnson’s complaint is deficient, her proposed amendments are not futile.2

                                               CONCLUSION

        For the foregoing reasons, the Court will grant Johnson’s motion to file her proposed

Second Amended Complaint, and will deny as moot the District’s motion to dismiss the First

Amended Complaint. See Turner v. Kight, 192 F. Supp. 2d 391, 397 (D. Md. 2002) (denying as

moot the defendants’ motion to dismiss the original complaint on the basis that the amended

complaint supersedes the original complaint). The Second Amended Complaint supersedes the

First Amended Complaint, and now becomes the operative complaint. Nat’l City Mortg. Co. v.

Navarro, 220 F.R.D. 102, 106 (D.D.C. 2004). A separate Order will issue on this date.



                                                                            /s/
                                                                     JOHN D. BATES
                                                                United States District Judge

Dated: July 17, 2015




        2
           Although, as the Court notes, the analyses for futility and a 12(b)(6) motion are essentially identical,
Driscoll, 42 F. Supp. 3d at 57, the Court’s determination regarding the former issue does not foreclose the District
from filing a motion to dismiss Johnson’s Second Amended Complaint.

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