UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

ALLAN EARL LUCAS, JR.,
Plaintiff, l

v. l Civil Action No. 13-cv-00143 (TFH)
DISTRICT OF COLUMBIA,

I)efendant.

 

 

MEMORANDUM OPINION

Pending before the Court is plaintiff Allan Earl Lucas, Jr. ’s second motion to amend his
complaint [ECF No. 50]. The District of Columbia (“the District”) filed an opposition [ECF No.
52]. For the foregoing reasons, the Court will grant the motion.

BACKGROUND

Plaintiff’s lawsuit seeks to recover financial damages for lost earnings and retirement
benefits stemming from the District of Columbia l\/Ietropolitan Police Department’s (“MPD”)
alleged failure to treat his induction into the United States Marine Corps as a military furlough
and to reemploy him upon his discharge from military service. He filed a complaint-against the
District and other defendants on February 4, 2013, [ECF No. 1], and amended his complaint for
the first time on December 17, 2013 to include only the District as a defendant, [ECF No. 34].

The District filed a motion to dismiss, {ECF No. 36], and on September 30, 2015, the
Court dismissed plaintiff s First Amended Compiaint (“FAC”) Without prejudice because
plaintiff did not demonstrate that he exhausted his administrative remedies as required under the

Comprehensive Merit Personnei Act (“CPMA”). [ECF No. 39]. In doing So, the Court concluded

that based on the F-AC, “plaintiff never filed a formal grievance or otherwise invoked the
required and exclusive Cl\/IPA. procedures to pursue his claims.” Id. at 15. Plaintiff then moved
for reconsideration or, in the alternative, for leave to file a second amended complaint [ECF No.
41]. The Court denied both, denying the latter without prejudice because plaintiff failed to attach
his proposed amended complaint to his motion for leave to amend, as required [ECF No. 49].

Plaintiff again moves for leave to amend his complaint, this time attaching a Second
Amended Complaint (“SAC”). Plaintiff contends that the Court should allow him to amend his
complaint because he sufficiently alleges that he exhausted his administrative remedies

LEGAL STANDARD

Under the Federal Rules of Civil Procedure, a party may amend its pleadings once as a
matter of course within a prescribed time period. Fed. R. Civ. P. lS(a)(l). Beyond that, the
decision whether to grant leave to amend is entrusted to the sound discretion of the trial court.
Leave “should be freely given unless there is a good reason, such as futility, to the
contrary.” Wr`lioughby v. Potomac Elec. Power Co., 100 F.3d 999, 1003 (D.C. Cir. 1996); Fed.
R. Civ. P. 15(2) (“[t]he court should freely give leave [to amend] when justice so requires.”). “A
district court may deny a motion to amend a complaint as futile if the proposed claim Would not
survive a motion to dismiss.” Hetringa v. United States, 677 F.3d 471, 480 (D.C. Cir. 20l2). The
defendant has the burden of demonstrating why a court should not grant leave to amend Mead v.
Cin Firsr Bank ofDC, N.A., 256 F.R.D. 6, 7 (D.D.C. 2009).

THE PARTIES’ CLAIMS

To support his assertion that he has exhausted his administrative remedies, plaintiff

asserts that he submitted two “formal grievances”-~a letter to the D.C. Office of Personnel in

March 2007, SAC, 11 29, Ex. l, and a letter to the District of Columbia Retirement Board in

2010.f Id. 11 31, Ex. 2. He received a response from the District of Columbia Retirement Board
on April 27, 2010 indicating that it lacked the authority to determine retirement eligibility or
employment rights Id. ‘[| 32, Ex. 3. The District of Columbia Retirernent Board then forwarded
his letter and its attachments to the District of Columbia Police and Firefighters Retirement and
Relief Board (“PFRRB”), as well as to the District of Columbia l\/letropolitan Police Department
(“MPD”) Human Resources Office. Id. Plaintiff met with MPD Human Resource Specialist
Wanda Montcrieff and PFRRB Assistant Attorney General Parnela Brown on August 18, 20l0,
Where they acknowledged that he did not receive appropriate separation counsel, and agreed to
investigate the grievance Id. 11 33. Plaintiff received a 14-page legal opinion from the PFRRB
dated October 9, 2012 that concluded, after conducting an “investigation of the matter,” that

l “[t]he doctrine of laches bar[red] any claim in this matter because of Mr. Lucas’ unreasonable
delay,” and the PFRRB “ha[d] no jurisdiction in this matter.” Id. il 35, Ex. 4, at 20, 32-33.

If plaintiff has not in fact exhausted his administrative remedies, he asserts that additional
efforts Would be “futile and useless” because the PFRRB has already taken a position on its
jurisdiction and “indicated its unwillingness to reconsider the issue.” Id. il 37.

According to the District, it is plaintiffs proposed amendment that would be “futile”
because he fails to allege that he exhausted his administrative remedies Def.’s Opp. at l.
Specificaliy, the District alleges that CMPA grievance procedures require that plaintiff appeal

the denial of his grievances to the Office of Employee Appeais (“OEA”). Id. at 4.

 

1 Applying the motion to dismiss standard, the Court assumes that plaintiffs factual allegations are true. See
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (“[w]hen there are well-pleaded factual allegations, a court should
assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.”).

ANALYS!S

The CPMA, D.C. Code §§ 1-601.01 et seq., is “with few exceptions'. . . the exclusive
remedy for a District of Columbia public employee who has a work-related complaint of any
kind.” Lucas v. District of Columbia, 133 F. Supp. 3d 176, l83 (D.D.C. 2015) (quoting Robinson
v. Dz`stricr of Columbia, 748 A.Zd 409, 411 (D.C. 2000)). The Cl\/IPA requires that administrative
remedies be exhausted though the CMPA before a federal court entertains a lawsuit Lucas v.
United Stales Gov’t, 268 F.3d 1089, 1094 (D.C. Cir. 2001); see Lucas, 133 F. Supp. 3d at 183
(treating the exhaustion requirement as prudential, and acknowledging that the D.C. Circuit has
not resolved whether the requirement is jurisdictional or prudential for federal courts).

The CMPA covers the plaintiff, a former employee of the District of Columbia. Lucas,
133 F.Supp.3d at 183; D.C. Code § l~602.01(a) (2001) (“unless specifically exempted from
certain provisions, this chapter shall apply to all employees of the Di'strict of Columbia
government, except the Chief Judges and Associate Judges of the Superior Court of the District
of Columbia and the Distriet of Columbia Court of Appeals and the nonjudicial personnel of said
Courts.”). lt also covers his causes of action~breach of contract, negligence, entitlement to back l
pay and attorney’s fees pursuant to the Bacl< Pay Act, and lost wages and benefits pursuant to the
Veterans Reemployment Rights Act. See Lucas, 133 F. Supp. 3d at 184 (classifying the
aforementioned causes of action as “work-related grievances that generally would fall Within the
gamut of the CMPA”); D.C. Code §1-603.01(10) (defining a “grievance” as “any matter under
the control of the District government which impairs or adversely affects the interest, concern, or
welfare of employees, but does not include adverse actions resulting in removals, suspension of

10 days or more, or reductions in grade, reductions in force or classification matters.”).

The question before the Court is whether plaintiff sufficiently alleged that he has
exhausted his administrative remedies under the CMPA in order to amend his complaint The
District, relying solely on W!iz'le v. District of`Columbin, claims that plaintiff has not done so
because he has not alleged that he appealed the denials of his grievances to the OEA, an agency
that adjudicates appeals pursuant to the CPMA. Def.’s Opp. at 4; 852 A.2d 922 (D.C. 2004)).
However, the CPMA requires employees to appeal final agency decisions to the OEA under
specific circumstances, none of which appear to apply to plaintiffs grievances See D.C. Code §
1-606.03(a) (“{a]n employee may appeal a final agency decision affecting a performance rating
which results in the removal of the employee,” “an adverse action for cause that results in
removal, reduction in f`orce, . . . reduction in grade, placement on enforced ieave, or suspension
for l0 days or more . . . .”). In Whi'r`e, the D.C. Court of Appeals even mentioned that
amendments to the CPMA in 1998 eliminated the provision providing for appeals of grievances
to the OEA. See White, 852 A.Zd at 924, n.5; Latl'isaw v. District ofcolumbia, 905 A.Zd 790,
794, n.8 (D.C. 2006) (“D.C. Code §1-603.03(a), part of the CMPA, formerly permitted an
employee to appeal to the OEA from, among other things, ‘a final agency decision . . . resolving
a grievance.’ The statue was amended in 1998, however, to eliminate this provision . . . The
CMPA now limits appeals to the OEA in three types of cases, none of which involves
grievances.” .

The District cites no other authority to support its assertion that plaintiff must appeal his
grievances to the OEA in order to exhaust his remedies Nor does it provide any other basis for
the Court to conclude that plaintiff has not sufficiently alleged exhaustion under the CMPA. The

District asserts that plaintiffs receipt on October 2012 of a letter from the PFRRB is °‘nothing

new” because plaintiff acknowledged the letter in a previous filing. Def.’s Opp. at 4.2 But
plaintiff s previous, cursory mention of the PFRRB memorandum is markedly vague compared
to his SAC, which alleges, with supporting documentation, that PFRRB investigated his
grievance and issued a legal conclusion on the matter. And, in contrast to earlier filings, the
District no longer contends that plaintiffs letters, which he now attaches to his complaint, do not
qualify as formal grievances

Given the briefing currently before the Court, the District has not met its burden to
demonstrate that permitting plaintiff to amend his complaint would be futile. In light of the
District’s failure to meet its burden, and the Court’s obligation to freely grant motions to amend,

plaintiffs motion to amend is hereby GRANTED.

February}@%€§ ,/£`Z`_./ j %W’

Thomas F. Hogan g >
SENIoR UNITED STATES CT JUDGE

 

2 The District refers to the following sentence of plaintiffs supplemental brief, filed on January 06, 2014: “[i]t took
the []PFRRB over two years to issue its memorandum denying his claim, despite repeated attempts by Lucas to
Contact PFRRB to determine [the] status of the ‘investigation.”’ [ECF No. 35, at lO].

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