                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


                                              )
VALERIE JOHNSON-PARKS,                        )
                                              )
               Plaintiff,                     )
                                              )
       v.                                     )      Civil Action No. 09-1492 (RLW)
                                              )
D.C. CHARTERED HEALTH PLAN,                   )
                                              )
               Defendant.                     )
                                              )

                                 MEMORANDUM OPINION

                                I. Introduction and Background

               Plaintiff Valerie Johnson-Parks commenced this action against D.C. Chartered Health

Plan under the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C § 12101 et seq. Pl.’s

Am. Compl. [Dkt. # 12]. According to the amended complaint, Plaintiff suffered from a back injury

and had worked as a nurse for Defendant, for a time from her home, until she was fired. Am. Compl.

¶¶ 14–41. Plaintiff asserts four ADA claims: disparate treatment, a failure to accommodate,

retaliation, and hostile work environment. Id. ¶¶ 45–84. The Court, per Judge Rosemary M.

Collyer, partially dismissed this case, on May 25, 2010, concluding that Plaintiff failed to state a

retaliation claim upon which relief could be granted. See Johnson-Parks v. D.C. Chartered Health

Plan, 713 F. Supp. 2d 39, 46 (D.D.C. 2010).1

               The Court reasoned that although Plaintiff had identified retaliation as a basis for

discrimination in her filings with the Equal Opportunity Employment Commission (“EEOC”), the


1
  This judge renders her decision on this motion because it has been transferred to her by consent.
See Mem. Op. [Dkt. # 30].
protected activity in which Plaintiff engaged that resulted in the alleged retaliation differed between

that identified in EEOC filings and that identified in the amended complaint. Id. The Court

therefore concluded that Plaintiff had not administratively exhausted the precise retaliation claim

presented here. Id. Plaintiff now moves for reconsideration of that partial dismissal, see Pl.’s Mot.

for Reconsideration [Dkt. # 27], arguing that when liberally interpreted and considered in light of

new evidence produced during discovery, Plaintiff’s EEOC filings do contain the same allegations

of retaliation that form the basis of her retaliation claim in the amended complaint. Defendant

opposes, arguing that Plaintiff’s motion is untimely, unduly prejudicial if granted, and unsupported.

See Def.’s Opp’n [Dkt. # 28]. After reconsideration, the motion will be granted.

                                        II. Legal Standard

               An interlocutory order such as the Court’s partial dismissal “may be revised at any

time before the entry of judgment adjudicating all the claims and all the parties’ rights and

liabilities.” FED . R. CIV . P. 54(b). “[R]elief upon reconsideration of an interlocutory decision

pursuant to Rule 54(b) is available ‘as justice requires.’” Estate of Botvin ex rel. Ellis v. Islamic

Republic of Iran, Civ. No. 05-220, 2011 WL 1097450, at *2 (D.D.C. Mar. 25, 2011) (quoting

Childers v. Slater, 197 F.R.D. 185, 190 (D.D.C. 2000)). “‘As justice requires’ indicates concrete

considerations of whether the court ‘has patently misunderstood a party, has made a decision outside

the adversarial issues presented to the [c]ourt by the parties, has made an error not of reasoning, but

of apprehension, or where a controlling or significant change in the law or facts [has occurred] since

the submission of the issue to the court.’” Id. (quoting Cobell v. Norton, 224 F.R.D. 266, 272

(D.D.C. 2004)) (alteration in original).




                                                 -2-
               Therefore, “[i]n general, a court will grant a motion for reconsideration of an

interlocutory order only when the movant demonstrates: ‘(1) an intervening change in the law; (2)

the discovery of new evidence not previously available; or (3) a clear error in the first order.’”

Zeigler v. Potter, 555 F. Supp. 2d 126, 129 (D.D.C. 2008) (quoting Keystone Tobacco Co., Inc. v.

U.S. Tobacco Co., 217 F.R.D. 235, 237 (D.D.C. 2003)). However, the court’s discretion to grant

a Rule 54(b) motion is “limited by the law of the case doctrine and ‘subject to the caveat that, where

litigants have once battled for the court’s decision, they should neither be required, nor without good

reason permitted, to battle for it again.’” Judicial Watch v. Dep’t of the Army, 466 F. Supp. 2d 112,

123 (D.D.C. 2006) (quoting Singh v. George Wash. Univ., 383 F. Supp. 2d 99, 101 (D.D.C. 2005)).

                                            III. Analysis

               The Court dismissed Plaintiff’s retaliation claim for failure to exhaust administrative

remedies because the Court concluded that Plaintiff had not pursued before the EEOC the same

retaliation claim advanced in this case. In her Intake Questionnaire filed with the EEOC, Plaintiff

alleged discriminatory retaliation “for a complaint on Karen Morris,” her supervisor. See Def.’s

Mot. to Dismiss [Dkt. # 13], [Ex. 2-A] Intake Questionnaire at 3. However in her amended

complaint, Plaintiff complains of discriminatory retaliation for requesting a reasonable

accommodation, i.e., to be permitted to work from home. See Am. Compl. ¶¶ 65–75; Johnson-

Parks, 713 F. Supp. 2d at 46. The Court thus reasoned that “[w]hile plaintiff’s Intake Questionnaire

identified retaliation as a basis for discrimination, the associated protected activity in her EEOC

filing is not the same as that identified in the amended complaint.” Johnson-Parks, 713 F. Supp. 2d

at 46. The Court concluded “that the retaliation claim pled was not administratively exhausted and,

therefore, it cannot be maintained here.” Id.


                                                 -3-
                Plaintiff’s motion for reconsideration of the Court’s ruling is timely and granting it

would not unduly prejudice Defendant. On reconsideration, the Court concludes that it erred in not

considering certain statements in Plaintiff’s charge that show that she did exhaust the specific

retaliation claim advanced in this case—a conclusion that is buttressed by new evidence produced

during discovery. Plaintiff’s retaliation claim will therefore be reinstated.

                A. The Motion is Both Timely and Not Unduly Prejudicial

                Defendant argues that Plaintiff’s motion is “belated” and that granting it “would be

akin to permitting a post-discovery amendment to the Complaint,” contrary to the Court’s order that

all motions to amend pleadings be filed by August 5, 2010. Def.’s Opp’n at 3. Defendant also

argues undue prejudice. Id. at 2–3. These arguments are unpersuasive.

                First, the motion is not belated. A district court may reconsider an interlocutory order

“at any time” before final judgment of all claims for all parties is entered in a case. FED . R. CIV . P.

54(b) (emphasis added). It follows, then, that a motion for such reconsideration may also be made

at any time within reason. Discovery closed in this case on February 7, 2011. See Minute Order Jan.

21, 2011. The instant motion, which is based in part on documents produced during discovery, was

filed only four days later. On this record, Plaintiff’s motion is reasonably timely.

                Second, granting the motion would not be akin to permitting further amendment to

the amended complaint. It would simply reinstate existing portions of the amended complaint.

Defendant cites no authority to the contrary. To the extent that Plaintiff points to documents

produced during discovery, those documents merely bolster Plaintiff’s argument that an exhausted

retaliation claim is already well pled in the complaint. Those documents do not themselves become




                                                  -4-
part of the complaint simply by virtue of the Court’s consideration of them on this motion to

reconsider.

               Finally, even if the Court were to construe reconsideration of a dismissal as an

amendment to a complaint, if justice requires such reconsideration, justice similarly requires such

amendment. See FED . R. CIV . P. 15(a)(2) (permitting late amendments of pleadings “when justice

requires”). Defendant is not prejudiced by the possibility of a short re-opening of discovery, if

needed.

               B. Plaintiff’s Retaliation Claim will be Reinstated

               “Before bringing suit in federal court, ADA . . . plaintiffs . . . must exhaust their

administrative remedies by filing an EEOC charge and giving that agency a chance to act on it.”

Ellis v. Georgetown Univ. Hosp., 631 F. Supp. 2d 71, 75 (D.D.C. 2009) (citing 42 U.S.C.

§ 12117(a)). The issue on reconsideration is whether Plaintiff included a claim of retaliation for

requesting and, for a time receiving, a work-from-home accommodation for her disability, as

opposed to a claim of retaliation only for making complaints about her supervisor.

               “[T]he law does not hold an employee to the use of magic words to make out a proper

discrimination charge.” Maryland v. Sodexho, Inc., 474 F. Supp. 2d 160, 162 (D.D.C. 2007).

Instead, a plaintiff must only “alert the EEOC and the charged employer with the nature of the

alleged wrongdoing.” Id. When examining whether the EEOC and the charged employer have been

adequately alerted, the Court considers, inter alia, whether the claim is “‘like or reasonably related

to the allegations of the charge and growing out of such allegations,’” Park v. Howard Univ., 71 F.3d

904, 907 (D.C. Cir. 1995) (quoting Cheek v. W. and S. Life Ins. Co., 31 F.3d 497, 500 (7th Cir.

1994)), and “arise[s] from ‘the administrative investigation that can reasonably be expected to follow


                                                 -5-
the charge of discrimination,’” id. (quoting Chisholm v. U.S. Postal Serv., 665 F.2d 482, 491 (4th

Cir. 1981)).

                Here, on the documents characterized by Defendant as the “underlying administrative

Charge” that were sent from the EEOC to Defendant, the box labeled “Retaliation” was not checked.

See Def.’s Mot. to Dismiss [Dkt. # 13], [Ex. 1-A] Notice of Charge of Discrimination. Defendant

therefore argues that retaliation was not included in the charge to the EEOC. See Def.’s Opp’n at

4–5. But Defendant also conciliatorily recognizes that “[i]n making its decision in this case, . . . the

Court looked beyond the face of the charge itself to the informal Intake Questionnaire used by the

EEOC as a first step in its administrative filing process.” Id. at 5; see also Johnson-Parks, 713 F.

Supp. 2d at 45–46. The Court declines Defendant’s suggestion that it should now take a narrower

view of the “charge” in this case.

                Looking again to Plaintiff’s Intake Questionnaire, the Court notes that Plaintiff did

check the box to indicate that she was alleging retaliation and she specified that such retaliation

allegedly occurred because she made a “complaint on Karen Morris.” Intake Questionnaire at 3.

Defendant argues that “this Court correctly held that as the scope of Count III, alleging retaliation,

exceeded the scope of the administrative Charge, it was not administratively exhausted.” Def.’s

Opp’n at 5. However, when Plaintiff explained her claim more fully elsewhere on the Intake

Questionnaire, she alleged that Ms. Morris “did not want me to work from home.” Intake

Questionnaire at 3. Instead, Ms. Morris requested “that I come in the office or be terminated”;

purposefully conveyed “wrong information” to another doctor “to blame me for an unsafe discharge”

of a patient as a pretext for discriminatory termination; “treated me with disrespect during case

rounds” because she disapproved of Plaintiff working from home; and continually pressured Plaintiff


                                                  -6-
to cease working from home “until I was terminated.” Id. at 3, 6. In short, Plaintiff’s employer

“wanted me to return to working in the office or to be terminated.” Id. at 3.

                In light of the liberal interpretation of the charge commanded by Park, 71 F.3d at 907,

it is clear that these allegations go beyond a claim ostensibly limited to retaliation for making

complaints about Ms. Morris; they reach a claim of retaliation for Plaintiff’s requesting (and for a

time receiving) a work-from-home accommodation. The retaliation claim alleged in this suit is

reasonably related to the allegations of the charge and grows out of such allegations, and the ensuing

administrative investigation could be reasonably expected to address it.

                This conclusion is buttressed by new documents disclosed during discovery that were

part of the EEOC’s investigative file. They support the theory that Plaintiff was discriminatorily

terminated because her employer “did not want me to have work at home accommodations”—and

they show that the EEOC was presented with that theory during its investigation. See Pl.’s Mot. for

Reconsideration [Dkt. # 27], [Ex. A-1] EEOC Investigative File at FOIA-0011. As Defendant

correctly points out, Def.’s Opp’n at 4, it is true that a “court cannot allow liberal interpretation of

an administrative charge to permit a litigant to bypass the . . . administrative process.” Park, 71 F.3d

at 907. But the Court’s interpretation here does not serve to grant such permission. The Court

merely recognizes that Plaintiff did present the same retaliation claim alleged in this case in its

charge to the EEOC. This conclusion does not permit Plaintiff to bypass the administrative process,

but recognizes that she did, in fact, participate in it.

                                            IV. Conclusion

                Because Plaintiff’s motion for reconsideration is timely, because granting that motion

would not be unduly prejudicial to Defendant, because the Court erroneously failed to consider


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

retaliation claim she alleges in this case, and because that conclusion is buttressed by new

documentary evidence produced during discovery, Plaintiff’s motion for reconsideration [Dkt. # 27]

will be granted. Accordingly, Plaintiff’s retaliation claim, Count III of the amended complaint, will

be reinstated. A memoralizing Order accompanies this Memorandum Opinion.



Date: August 31, 2011                                                    /s/
                                                              ROSEMARY M. COLLYER
                                                              United States District Judge




                                                 -8-
