                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


                                              )
JORGE PONCE,                                  )
                                              )
               Plaintiff,                     )
                                              )
       v.                                     )       Civil Action No. 08-1028 (RMC)
                                              )
JAMES H. BILLINGTON, Librarian,               )
U.S. Library of Congress,                     )
                                              )
               Defendant.                     )
                                              )


                                  MEMORANDUM OPINION

               Pending before the Court is Jorge Ponce’s Motion for Leave to Amend Complaint

[Dkt. # 15]. Mr. Ponce seeks leave to amend his Complaint, which alleges discrimination on the

basis of race, national origin, and sex in violation of Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e et seq., to add a Title VII retaliation claim arising from the same non-selection for

the position of Director of the Office of Workforce Diversity at the Library of Congress that forms

the basis of his discrimination claims. For the reasons explained herein, the motion will be denied.

                                             I. FACTS

               Mr. Ponce asserts that at the May 29, 2009 deposition of General Donald Scott,

Deputy Librarian of Congress, General Scott “stated that Plaintiff was involved with groups that

were civil rights oriented, and that he [General Scott] was concerned that Plaintiff was an activist

that would take sides against the Library in EEO matters.” Pl.’s Mem. in Supp. of Mot. for Leave

to Amend Compl. [Dkt. # 15-2] at 1. “Because of this statement made during discovery by the

selecting official, Plaintiff now seeks to amend his complaint by adding a count of retaliation in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16.” Id. at 1-

2. The motion was filed on August 24, 2009, ten days after discovery had ended.1 Partly for that

reason, Defendant opposes the motion.

                                   II. LEGAL STANDARDS

                Federal Rule of Civil Procedure 15(a) provides:

                A party may amend its pleading once as a matter of course before
                being served with a responsive pleading. . . . In all other cases, a
                party may amend its pleading only with the opposing party’s written
                consent or the court’s leave. The court should freely give leave when
                justice so requires.

Fed. R. Civ. P. 15(a). A court may deny a motion to amend if it finds “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). A motion to amend a

complaint is futile “if the proposed claim would not survive a motion to dismiss.” James Madison

Ltd. v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996). “Within these bounds, a district court has

discretion to grant or deny leave to amend under Rule 15(a).” Atchinson v. District of Columbia, 73

F.3d 418, 426 (D.C. Cir. 1996).

                                         III. ANALYSIS

                Defendant argues that leave to amend should be denied because amendment would

be futile and would result in undue prejudice to him insofar as discovery already has ended. Taking

the latter argument first, the Court rejects as unfounded Defendant’s assertion of undue prejudice.

The Court agrees with the recent decision of Judge John Bates, who concluded on similar facts that


       1
           Discovery ended on August 14, 2009.

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when amendment is sought shortly after discovery ends but before summary judgment briefing has

commenced, the prejudice to the defendant “if any, is minimal and it simply does not override the

liberal standard that this Court must apply when determining whether to grant leave to amend under

Fed. R. Civ. P. 15.” Ellis v. Georgetown Univ. Hosp., Civil Action No. 08-1174, 2009 WL 1916315,

at *7 (D.D.C. July 6, 2009). Indeed, as Judge Bates noted, “any potential prejudice would be

ameliorated by supplemental discovery related to” the new retaliation claim. Id. at *6.

               Defendant’s better argument is the one he led with: that leave to amend should be

denied because Mr. Ponce’s proposed amendment would be futile given that he failed to invoke and

exhaust administrative procedures with respect to his proposed retaliation claim. “The statutory

scheme of Title VII requires a plaintiff to exhaust his or her administrative remedies before a civil

action may be filed in federal court.” Robinson-Reeder v. Am. Council on Educ., 532 F. Supp. 2d

6, 12 (D.D.C. 2008). A Title VII lawsuit “is limited in scope to claims that are ‘like or reasonably

related to the allegations of the [administrative] charge and growing out of such allegations.’” Park

v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995) (quoting Cheek v. W. & S. Life Ins. Co., 31 F.3d

497, 500 (7th Cir. 1994)). A Title VII claim “must fall within the scope of ‘the administrative

investigation that can reasonably be expected to follow the charge of discrimination.’” Marshall v.

Fed. Express Corp., 130 F.3d 1095, 1098 (D.C. Cir. 1997) (quoting Park, 71 F.3d at 907).

               Mr. Ponce’s administrative EEO complaint lodged with the Library of Congress

alleged only discrimination in his non-selection on the basis of race, national origin, and sex. It did

not allege retaliation for opposing employment discrimination, as Mr. Ponce now seeks to allege for

the first time in his proposed amended complaint. Nevertheless, Mr. Ponce argues that “there is no

requirement that Plaintiff raise his retaliation claim at the administrative level prior to amending his


                                                  -3-
complaint in federal court because it did not involve a discrete act of discrimination.” Pl.’s Reply

[Dkt. # 17] at 1.

               Mr. Ponce seems to be under the mistaken impression that because he complained

to the Library of Congress about the discrete act of his non-selection, he is now free to assert any

legal theory concerning his non-selection whether or not previously presented to the Library. That

is not the law. “The theories of discrimination in [a] plaintiff’s lawsuit are limited to the theories

contained in the [administrative EEO complaint] he filed.” Marcelus v. Corr. Corp. of Am., 540 F.

Supp. 2d 231, 236 (D.D.C. 2008). “Any other theories are barred unless the claim is ‘like or

reasonably related to the allegations of the [administrative EEO complaint] and growing out of such

allegations.’” Id. (quoting Park, 71 F.3d at 907). Mr. Ponce’s proposed retaliation claim is not “like

or reasonably related to” the race, national origin, and sex discrimination allegations contained in

his administrative EEO complaint. See id. (“plaintiff’s retaliation claim here is not ‘like or

reasonably related to’ the [age and national origin discrimination] allegations in his EEOC Charge”);

see also Miles v. Dell, Inc., 429 F.3d 480, 492 (4th Cir. 2005) (“Miles’ retaliation claim is not

reasonably related to her charge such that it would have been expected to follow from an

investigation of Miles’ sex and pregnancy discrimination claims”); Peters v. Renaissance Hotel

Operating Co., 307 F.3d 535, 550 (7th Cir. 2002) (“We do not believe that Mr. Peters’ retaliation

claim is like or reasonably related to [his] discrimination charge”); Wallin v. Minn. Dep’t of Corrs.,

153 F.3d 681, 688 (8th Cir. 1998) (“it is well established that retaliation claims are not reasonably

related to underlying discrimination claims”). Having failed to raise a retaliation theory for his non-

selection with the Library of Congress, Mr. Ponce cannot do so now.




                                                 -4-
                                      IV. CONCLUSION

               Because Mr. Ponce failed to exhaust administrative remedies with respect to his

proposed retaliation claim, the proposed amendment to add a retaliation claim would not survive a

motion to dismiss. See Marcelus, 540 F. Supp. 2d at 236 (dismissing retaliation claim for failure to

exhaust administrative remedies). Therefore, Mr. Ponce’s motion to amend his complaint to add a

retaliation claim will be denied as futile. A memorializing Order accompanies this Memorandum

Opinion.




Date: September 14, 2009                                      /s/
                                                 ROSEMARY M. COLLYER
                                                 United States District Judge




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