                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
KAREN L. KIMMEL,              )
                              )
     Plaintiff,               )
                              )
     v.                       )     Civil Action No. 07-797 (RWR)
                              )
GALLAUDET UNIVERSITY,         )
                              )
     Defendant.               )
______________________________)

                         MEMORANDUM ORDER

     Plaintiff Karen Kimmel brings this action against Gallaudet

University alleging retaliation in violation of Title VI of the

Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq; retaliation,

disability discrimination and hostile work environment in

violation of the District of Columbia Human Rights Act (“DCHRA”),

§ 2-1401.01 et seq.; and tortious interference with prospective

business relations.   Kimmel moves to amend her complaint to add a

claim of constructive discharge in violation of the DCHRA, which

Gallaudet opposes on the basis that the claim arises from facts

that are separate in time and type from the facts alleged in her

original complaint.   Because Kimmel’s constructive discharge

claim arises out of the same alleged pattern of harassment that

forms the basis of Kimmel’s hostile work environment claim,

Kimmel’s motion to amend her complaint will be granted.

     “Federal Rule of Civil Procedure 15(c) governs amendments to

a complaint that are made after the time for filing the complaint
                                 -2-

has expired.”   Henderson v. Williams, Civil Action No. 05-1966

(RWR), 2007 WL 778937, at *2 (D.D.C. Mar. 12, 2007).    In

pertinent part, Rule 15(c) states “that ‘[a]n amendment to a

pleading relates back to the date of the original pleading when

. . . the amendment asserts a claim or defense that arose out of

the conduct, transaction, or occurrence set out –- or attempted

to be set out –- in the original pleading.’”    Palmer v.

Homecomings Fin. LLC, 677 F. Supp. 2d 233, 237 (D.D.C. 2010)

(alteration in original) (quoting Fed. R. Civ. P. 15(c)(1)).

     “Typically, amendments that build on previously alleged

facts relate back.”    Jones v. Greenspan, 445 F. Supp. 2d 53, 56

(D.D.C. 2006) (citing United States v. Hick, 283 F.3d 380, 388

(D.C. Cir. 2002)).    But, not only must an amendment share some

elements and facts in common with the original claim, the

original complaint must also “‘adequately notif[y] the defendants

of the basis for liability the plaintiffs [will] later advance in

the amended complaint.’”    Jones v. Bernanke, 557 F.3d 670, 674-75

(D.C. Cir. 2009) (quoting Meijer, Inc. v. Biovail Corp., 533 F.3d

857, 866 (D.C. Cir. 2008)).    Ultimately, “[s]o long as the

original and amended [complaints] state claims that are tied to a

common core of operative facts, relation back will be in order.”

Mayle v. Felix, 545 U.S. 644, 664 (2005).    Relation back,

however, “is improper when the amended claim ‘asserts a new

ground for relief supported by facts that differ in both time and
                                -3-

type from those the original pleading set forth.’”    Bernanke, 557

F.3d at 674 (quoting Mayle, 545 U.S. at 650).

     Gallaudet contends that the facts alleged in Kimmel’s

amended complaint are unrelated in time and type to those set

forth in the original complaint and that it had no notice that

the events that occurred during Kimmel’s sabbatical would form

the basis of a constructive discharge claim.    (Def.’s Opp’n to

Pl.’s Mot. for Leave to File Amended Compl. (“Def.’s Opp’n”) at

3, 5.)   If the original complaint put Gallauget on notice of

anything, it was that Kimmel feard that Gallaudet’s behavior was

aimed at drumming her straight out of the university.    (See,

e.g., Compl. ¶ 15 (“It is clear that the actions of Gallaudet

employees and agents . . . have been designed to harass

Dr. Kimmel to the point that she will leave the University[.]”),

¶ 21 (“The falsehoods spread by Gallaudet . . . were also

designed to harass her in order to force her to leave

Gaulladet.”), ¶ 26 (“[Her] smaller than usual raise . . . [was]

intended to force Dr. Kimmel to leave Gallaudet[.]”).)    With

notice of a potential constructive discharge claim not being an

issue, the only question is whether the amendment “arose of the

conduct . . . set out . . . in the original [complaint.]”    Fed.

R. Civ. P. 15(c)(1)(B).

     Kimmel’s original complaint alleges that Gallaudet subjected

her to harassment, which created “a pervasive atmosphere of
                                -4-

disrespect, ridicule, [and] insult” and amounted to a hostile

work environment.   (Compl. ¶¶ 47-48.)   Specifically, it claims

that in order to force Kimmel to leave, Gallaudet falsely accused

her of coercing professors to change math grades and of

supporting grade changes for athletes.    (Id. ¶¶ 20, 21, 25.)    In

the amended complaint, Kimmel asserts that she went on sabbatical

to escape the hostile work environment and that, during her

sabbatical, Gallaudet facilitated false allegations against her

in a town hall it held to allow students and employees to attack

her reputation, character and actions.    (Amend. Compl. ¶¶ 27-29.)

Kimmel also asserts that Gallaudet faculty informed her that she

was not welcome to return from sabbatical, and that Gallaudet

employees “formed a group . . . , which had as one of its goals

the removal of Plaintiff from Gallaudet.”     (Id. ¶ 30.)

Ultimately, Kimmel’s amended complaint alleges that the same

harassment that created the hostile work environment intensified

to such a degree that it resulted in her resignation.       The newly

asserted claim is a direct extension of the very ongoing conduct

that Kimmel claimed created a retaliatory hostile work

environment.

     Gallaudet also argues that it would be prejudiced by

Kimmel’s “untimely attempt to amend her [c]omplaint” because

Kimmel waited over two years after her resignation to seek to

amend her complaint.   (Def.’s Opp’n at 5.)    Gallaudet’s sole
                                -5-

substantiation for its claim of prejudice is to repeat its

discredited absence-of-notice argument, and to speculate that

some percipient witnesses to events reflected in Kimmel’s new

claim no longer work for Gallaudet.   However, Gallaudet fails to

specify who they are, or allege or show that they cannot be

located or are otherwise unavailable.      Moreover, discovery has

not yet concluded and the parties are not foreclosed from

engaging in discovery related to Kimmel’s newly asserted claim.

     Because the amended complaint asserts a claim that arises

out of the same type of conduct alleged in the original

complaint, Gallaudet has been on notice of the newly alleged

claim, and Gallaudet has not amply demonstrated how it would be

prejudiced by the amendment, Kimmel’s amendment would relate back

in time to the original complaint, and her motion to amend her

complaint will be granted.   Accordingly, it is hereby

     ORDERED that plaintiff’s motion [20] for leave to file an

amended complaint be, and hereby is, GRANTED.    The Clerk shall

docket as the Amended Complaint the exhibit attached to the

motion.

     SIGNED this 25th day of June, 2010.



                               ________/s/_________________
                               RICHARD W. ROBERTS
                               United States District Judge
