                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
_____________________________
                               )
BETTY CLAYTON,                 )
                               )
          Plaintiff,           )
                               )
          v.                   ) Civil Action No. 11-1889 (RWR)
                               )
DISTRICT OF COLUMBIA, et al., )
                               )
          Defendants.          )
_____________________________ )

                   MEMORANDUM OPINION AND ORDER

     Plaintiff Betty Clayton brought suit against the District of

Columbia (“District”) and the District of Columbia National Guard

(“DCNG”), alleging that the District violated D.C. law by

retaliating against her for making protected disclosures and for

engaging in other protected conduct, and that the defendants

violated the United States Constitution by depriving her of her

property interest in her employment without due process.    Clayton

moves under Federal Rule of Civil Procedure 15 for leave to amend

her complaint.   Because the District does not oppose Clayton’s

motion to amend, Clayton’s motion for leave to amend her

complaint will be granted as to the claims against the District,

except as to those claims in Counts Three, Four, and Five that

reassert claims previously dismissed.   Clayton’s motion for leave

to amend her complaint to add Title VII claims against the DCNG

will be granted as those claims are sufficiently pled, but her
                                 -2-

motion to reallege claims against the DCNG in Counts Four and

Five that have been previously dismissed will be denied.

                            BACKGROUND

     The background of this case is discussed more fully in

Clayton v. District of Columbia, 931 F. Supp. 2d 192 (D.D.C.

2013).   Briefly, Clayton alleges that she was the Director of the

D.C. Government Operations Division of the District of Columbia

National Guard.   Id. at 197.   Her complaint avers that “[t]he

D.C. Government Operations Division is simultaneously a

Directorate within Joint Force [Headquarters], DC National Guard

and an agency of the Government of the District of Columbia.”

Id. (internal quotation marks omitted).    However, while the DCNG

is a federal entity, id. at 200, and “the Commanding General of

the DCNG . . . is a federal employee of the Department of

Defense[,]” id. at 197, the District views “the Director of the

Government Operations Division [as] a District employee who is

subject to the personnel rules, regulations, laws and the policy

of the District[,]” id. at 198 (internal quotation marks

omitted).

     Clayton alleges that while serving as the Director, she

reported several incidents of unlawful conduct within the DCNG,

such as fraud, waste, abuse, and sexual harassment allegations.

Id. at 197-98.
                                 -3-

     When Clayton was appointed, the Director of the D.C.

Government Operations Division was a Career Service position.1

Id. at 197.    However, the position was later reclassified as an

at-will, Management Supervisory Service (“MSS”) position2 under

D.C. Code § 1-609.58(a).3    See id. at 199.   Shortly after

Clayton’s position was reclassifed an MSS position, Clayton

received notice that she was being terminated without cause.      Id.

     Clayton filed a five-count amended complaint against the

District and the DCNG.    “Although Clayton’s amended complaint

appears to allege all five counts against the District and the



     1
       “A Career Service employee can be terminated only for
cause, and such terminations are subject to appeal to the
District’s Office of Employee Appeals (‘OEA’).” Clayton, 931 F.
Supp. 2d at 197 n.4 (internal quotation marks omitted).
     2
       A “management employee” is “any person whose functions
include responsibility for project management and supervision of
staff and the achievement of the project’s overall goals and
objectives.” D.C. Code § 1-614.11.
     3
         D.C. Code § 1-609.58(a) provides:

     Persons currently holding appointments to positions in
     the Career Service who meet the definition of
     “management employee” as defined in § 1-614.11(5) shall
     be appointed to the Management Supervisory Service
     unless the employee declines the appointment. Persons
     declining appointment shall have priority for
     appointment to the Career Service if a vacant position
     for which they qualify is available within the agency
     and is acceptable to the employee. If no such vacant
     position is available, a 30-day separation notice shall
     be issued to the employee, who shall be entitled to
     severance pay in the manner provided by § 1-624.09.

D.C. Code § 1-609.58.
                                -4-

DCNG,” Clayton later asserted that her claims against the DCNG

were pled in Counts Four and Five.    Id. at 197 n.2.   Count Four

alleged “that the District and the DCNG violated Clayton’s

constitutional due process rights by depriving Clayton of her

protected property interest in her employment and right to seek

review of any termination of her employment with the Office of

Employee Appeals (‘OEA’) without due process, and seeks money

damages for the constitutional violation.”    Id. at 199.   “Count

Five [sought] a declaratory judgment that D.C. Code § 1-609.58(a)

is unconstitutional on its face and as applied.”    Id.

     The DCNG moved under Federal Rule of Civil Procedure

12(b)(1) to dismiss the counts against it.    The motion was

granted on the ground that the claims against the DCNG in Counts

Four and Five were barred by sovereign immunity.    Id. at 199-201.

     The District also filed a motion to dismiss under Rule

12(b)(6).   The motion was granted as to Count Three because

Clayton failed to state a claim of wrongful termination.    Id. at

204-05.   The motion was granted as to Count Four because Clayton

did not plead sufficient facts to establish that she was denied

due process when the Director position was reclassified as an MSS

position, and because she did not have a property interest in her

job at the time she was terminated.    Id. at 205-06.   Finally, the

motion was granted as to Clayton’s facial challenge to D.C. Code
                                 -5-

§ 1-609.58(a) in Count Five for failure to state a due process

claim.4   Id. at 207.

     Clayton now moves to amend her complaint again.   Clayton’s

proposed second amended complaint realleges the same facts raised

in her first amended complaint and reasserts the same five claims

against the same defendants as she did in her first amended

complaint.5   The proposed amended complaint also adds two new

claims alleging retaliation and sex discrimination, in violation

of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42

U.S.C. § 2000e et seq., presumably against both the DCNG and the

District.

     The District does not oppose Clayton’s motion to amend the

complaint.    However, the DCNG argues that Clayton’s motion should

be denied as to the claims against the DCNG because the proposed

amended complaint reasserts claims the court has already

dismissed, and thus granting leave to amend would be futile.6


     4
        Clayton’s as-applied constitutional challenge survived.
Id. at 205 n.12.
     5
        Clayton does, however, make a superficial edit in
paragraphs 90 and 97: she now explicitly requests “all available
statutory and equitable relief” for Counts One and Two. Compare
Am. Compl. ¶¶ 90, 97 (requesting “such other and further relief
this Honorable Court determines just and equitable”), with
Proposed 2d Am. Compl. ¶¶ 90, 97 (requesting “such other and
further relief this Honorable Court determines just and
equitable, including all available statutory and equitable
relief” (emphasis added)).
     6
        The DCNG is no longer a party in this action and might
not have been expected to respond to Clayton’s motion to file a
                                -6-

The DCNG further argues that Clayton’s claims under Title VII are

also futile because she is not an employee, applicant for

employment, or former employee of the DCNG and is unprotected by

Title VII.

                            DISCUSSION

     After the time to amend her complaint as a matter of course

has expired, a plaintiff may amend her complaint “only with the

opposing party’s written consent or the court’s leave.”   Fed. R.

Civ. P. 15(a)(2).   “[L]eave to amend should be freely given

unless there is a good reason, such as futility, to the

contrary.”   Willoughby v. Potomac Elec. Power Co., 100 F.3d 999,

1003 (D.C. Cir. 1996) (citing Foman v. Davis, 371 U.S. 178, 182

(1962)).   Accordingly, “a court should ‘determine the propriety

of amendment on a case by case basis, using a generous

standard[.]’”   Commodore-Mensah v. Delta Air Lines, Inc., 842 F.


second amended complaint. See 67A C.J.S. Parties § 86 (“After
dismissal, a party has no right to submit motions or objections
relative to matters in the case.”); cf. Motion Practice, 9-80
(David F. Herr et al., eds., 5th Ed. Supp. 2012) (“If a motion
seeks leave to amend to name additional parties, those parties
are not entitled to notice and they have no absolute right to
participate in the motion hearing until they are formally added
to the litigation through a granted amendment. . . . [T]hey have
no standing under Rule 15 to object.”). However, because the
DCNG was previously a party to the suit and could have filed a
motion to intervene to oppose further amendment, its opposition
has been considered. See Fed. R. Civ. P. 24(b); see e.g.,
Perkumpulan Investor Crisis Ctr. Dressel--WBG v. Wong, No. C09-
1786-JCC, 2013 WL 1192626, at *5 (W.D. Wash. March 22, 2013)
(considering a proposed defendant’s objections “given that he
could have filed a motion to intervene for the limited purpose of
opposing Plaintiff’s motion”).
                                -7-

Supp. 2d 50, 52 (D.D.C. 2012) (quoting Harris v. Sec’y, U.S.

Dep’t of Veterans Affairs, 126 F.3d 339, 344 (D.C. Cir. 1997)).

“Futile amendments ‘restate[] the same facts as the original

complaint in different terms, reassert[] a claim on which the

court previously ruled, fail[] to state a legal theory or could

not withstand a motion to dismiss.’”   Saint-Jean v. District of

Columbia, 844 F. Supp. 2d 16, 20 (D.D.C. 2012) (quoting Pietsch

v. McKissack & McKissack, 677 F. Supp. 2d 325, 328 (D.D.C.

2010)); see also Hettinga v. United States, 677 F.3d 471, 480

(D.C. Cir. 2012).

     A party can move to dismiss a claim for failure to state 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),

the factual allegations stated in a plaintiff’s complaint “must

be enough to raise a right to relief above the speculative

level.”   Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

The complaint must be construed in the light most favorable to

the plaintiff and “the court must assume the truth of all well-

pleaded allegations.”   Warren v. District of Columbia, 353 F.3d

36, 39 (D.C. Cir. 2004).

     The defendant bears the burden of demonstrating that a

plaintiff’s motion to file an amended complaint should be denied.

Afram v. United Food & Commercial Workers Unions & Participating
                                 -8-

Employers Health & Welfare Fund, Civil Action No. 12-1389 (RWR),

2013 WL 3974096, at *1 (D.D.C. Aug. 5, 2013).

     The DCNG argues that any attempt by Clayton to revive her

claims against the DCNG that were previously dismissed should be

denied.   Clayton’s claims against the DCNG in Counts Four and

Five of her amended complaint were dismissed because they were

barred by sovereign immunity.   In her proposed second amended

complaint, Clayton again alleges these claims but does not

provide additional argument or support to establish that this

court has subject matter jurisdiction over Counts Four and Five

against the DCNG.   See Nat’l Wrestling Coaches Ass’n v. Dep’t of

Educ., 366 F.3d 930, 945 (D.C. Cir. 2004).   Because these claims

have already been dismissed, Clayton’s motion to reallege Counts

Four and Five against the DCNG will be denied.

     Similarly, Clayton’s motion attempts to revive her claims

against the District that were previously dismissed.   Clayton’s

wrongful termination and due process claims, as well as her claim

for a declaratory judgment that D.C. Code § 1.609-58 is facially

unconstitutional, were all dismissed for failure to state a

claim.    However, Clayton’s amended complaint does not add any new

factual allegations to remedy these shortcomings.   Accordingly,

because these claims have already been dismissed, Clayton’s

motion to reallege Counts Three and Four and the facial
                                 -9-

constitutional challenge in Count Five against the District will

be denied.

       The DCNG also argues that allowing Clayton to amend her

complaint to add new Title VII claims against it would be futile

because the DCNG was not Clayton’s employer when the allegedly

discriminatory conduct occurred.

       Title VII prohibits “an employer” from discriminating

against “any individual with respect to [her] compensation,

terms, conditions, or privileges of employment” on the basis of

sex.    42 U.S.C. § 2000e-2(a)(1).   Section 704(a) of Title VII

also makes it unlawful “for an employer to discriminate against

any of his employees or applicants for employment . . . , because

[s]he has opposed any practice made an unlawful employment

practice by this subchapter, or because [s]he has made a charge,

testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing.”     42 U.S.C. § 2000e-3(a).

Finally, Title VII also protects federal government “employees or

applicants for employment . . . from any discrimination based on

race, color, religion, sex, or national origin.”     42 U.S.C.

§ 2000e-16(a).    While individuals without a direct employment

relationship with the federal agency are not protected by Section

2000e-16, Spirides v. Reinhardt, 613 F.2d 826, 829–30 (D.C. Cir.

1979) (explaining that the protection in § 2000e-16(a) extends

only to an employee, former employee, or applicant for
                               -10-

employment), an employee can have joint employers for the purpose

of Title VII, see, e.g., Harris v. Attorney General of the U.S.,

657 F. Supp. 2d 1 (D.D.C. 2009).   To determine the employment

status of the plaintiff, the court must look to “traditional

agency law principles.”   Id. at 9 (quoting Nationwide Mut. Ins.

Co. v. Darden, 503 U.S. 318, 323 (1992)).   For a single employer,

the court should examine “the extent of the employer’s right to

control the ‘means and manner’ of the worker’s performance.”

Spirides, 613 F.2d at 831.   If the plaintiff could be a joint

employee, the court looks to “whether defendant ‘retained for

itself sufficient control of the terms and conditions of

employment of the employees who are employed by the other

employer.’”   Harris, 657 F. Supp. 2d at 9 (quoting NLRB v.

Browning-Ferris Indus. of Pa., Inc, 691 F.2d 1117, 1123 (3d Cir.

1982)).   The plaintiff’s employment status is not determined by

who provided the employee’s paycheck, or administered the

employee’s benefits.   Id. at 12-13.

     The DCNG fails to carry its burden of proving that it would

be futile to allow Clayton to amend her complaint by adding Title

VII claims.   While Clayton must have been an employee of the DCNG

to sue the DCNG under Title VII, the DCNG fails to demonstrate

that Clayton’s proposed second amended complaint does not allege

sufficient facts to show that Clayton was either an employee of

DCNG or a joint employee of the District and the DCNG.
                               -11-

     Plaintiff’s proposed amended complaint sufficiently pleads

that the DCNG maintained some control over both the means and

manner as well as the terms and conditions of Clayton’s

employment, thus making relief plausible.    For example, Clayton

alleges that Colonel Ronald Stamps of the DCNG was involved in

hiring Clayton, Proposed 2d Am. Compl. ¶ 7, General Schwartz of

the DCNG completed Clayton’s performance evaluations, id. ¶ 10,

and Clayton reported to both General Schwartz and D.C. agency

officials during her employment, id. ¶ 13.   In addition, Clayton

alleges that “DC Government Operations is simultaneously a

Directorate within Joint Force Head Quarters, DC National Guard

and an agency of the Government of the District of Columbia.”

Id. ¶ 9.   Clayton’s proposed amended complaint also alleges that

General Schwartz, as the head of the DCNG, has “supervisory

authority” over D.C. employees of the DCNG, id. ¶ 84, and can

“participate in the hiring process and confer on disciplinary

actions,” id. ¶ 83.   Finally she alleges that General Schwartz

has “independent authority to initiate remedial or disciplinary

measures against Government Operations Division Personnel.”     Id.

¶ 84.   Thus, because Clayton has amply pled that the DCNG

maintained control over Clayton’s employment, she has

sufficiently pled facts that permit her to sue the DCNG under

Title VII.   Therefore, Clayton’s motion to add two Title VII

claims will be granted.
                                  -12-

                          CONCLUSION AND ORDER

     The District does not oppose Clayton’s motion for leave to

amend the complaint, and Clayton has sufficiently pled grounds

for her retaliation and discrimination claims under Title VII

against the DCNG.   However, Counts Three, Four, and Five reassert

claims that were previously dismissed against the District, and

Counts Four and Five reassert claims that were previously

dismissed against the DCNG.     Accordingly, it is hereby

     ORDERED that Clayton’s motion [40] for leave to file a

second amended complaint be, and hereby is, GRANTED IN PART and

DENIED IN PART.   Clayton’s motion to amend is granted except as

to her claims in Counts Three and Four, and her claim against the

DCNG and her facial constitutional challenge in Count Five.   The

Clerk is directed to file as the second amended complaint the

attachment to Clayton’s motion for leave to amend her complaint

[40-3].   It is further

     ORDERED that the Clerk reinstate the DCNG as a defendant in

this matter.

     SIGNED this 21st day of November, 2013.



                                           /s/
                                  RICHARD W. ROBERTS
                                  Chief Judge
