Brady v. United States Capitol Police

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
KRISTIN BRADY,
Plaintiff, Civil Action No. 15-cv-1299 (BAH)
v. Judge Beryl A. Howell
UNITED STATES CAPITOL POLICE,
Defendant.
MEMORANDUM OPINION
The plaintiff, Officer Kristin Brady, brings this action against her employer, United
States Capitol Police (“USCP” or “defendant”), pursuant to Section 207(a) of the Congressional
Accountability Act (“CAA”), 2 U.S.C. § 1317(a), asserting a single claim for unlawful
retaliation. Compl. ¶¶ 35–36. By her own admission, the plaintiff used foul language to relay
sexually-graphic gossip to a co-worker, prompting the defendant’s Office of Professional
Responsibility (“OPR”) to investigate and ultimately discipline the plaintiff. Id. ¶¶ 24–27, 32–
33. Notwithstanding the plaintiff’s own admitted conduct, she now claims that by issuing this
discipline, the defendant retaliated against her in violation of the CAA. Id. ¶¶ 11, 36. The
plaintiff’s claim fails, however, because she makes no allegation that she ever opposed unlawful
discrimination based on a protected class, nor does she allege that she participated in any formal
proceedings protected by the CAA. See generally Compl. Pending before the Court is the
defendant’s motion to dismiss the complaint for failure to state a claim, under Federal Rule of
Civil Procedure (12)(b)(6). Def.’s Mot. Dismiss (“Def.’s Mot.”), ECF No. 4. For the reasons set
forth below, this motion is granted.
1
I. BACKGROUND
On July 1, 2014, a USCP officer (“complainant”) filed a written complaint with the
USCP concerning a conversation among other USCP officers that the plaintiff had allegedly
overheard and relayed to the complainant. Id. ¶¶ 9–10. Specifically, the complainant reported:
“Sergeant Jodi Breiterman was overhead by officers talking in the Capitol Division office. She
intimated that I received my assignment due to my relationship with Deputy Chief Roullier and
said something to the effect of ‘who do I have to sleep with to get a cushy assignment.’” Id. ¶
10. The complainant concluded, “[i]f true, then supervisors of the Department have made
statements that perpetuated rumors and have contributed to a hostile work environment. The
Department has not taken any steps to challenge the rumor that my assignment was the result of
a quid pro quo relationship.” Id.Pursuant to this written complaint, the USCP’s OPR initiated an investigation. Id. ¶ 11.
In the course of the investigation, the complainant identified the plaintiff “as the individual who
notified her about Sergeant Breiterman’s comments” and provided OPR with a copy of a text
message that the plaintiff had sent the complainant describing the comments. Id. ¶¶ 12–13.
Approximately, two weeks later, on July 16, 2014, OPR interviewed the plaintiff. Id. ¶
14. The OPR Investigator informed the plaintiff “that she was being interviewed as a ‘witness,’”
and the plaintiff “received paperwork confirming [the same].” Id. ¶ 15. The plaintiff reported to
the OPR Investigator that in late May 2014, she “observed Sergeant Jodi Breiterman . . . . say the
name ‘Joe,’ and ‘two months,’” as well as make other comments about the complainant. Id. ¶¶
17–19. She further “heard Sergeant Breiterman say ‘is that what I have to do to get ahead in this
place?’” Id. ¶ 22. The plaintiff was aware that the complainant had previously been married to
another USCP officer, Joe, “and that rumors recently surfaced that the complaining officer was
2
in a relationship with a superior officer.” Id. ¶ 20. Based on this conversation, the plaintiff
“believed that Sergeant Breiterman was spreading rumors about the complaining officer and
creating a hostile work environment.” Id. ¶ 23.
The plaintiff then sent a text message to the complainant “to report Sergeant Breiterman’s
harassing comments.” Id. ¶¶ 24, 28. The message stated:
YOU DID NOT HEAR THIS FROM ME! Breiterman is pissed off that she didn’t
get her transfer to Intel. cobbin got it over her so now she is on a rampage and
trying to take down anyone in her path which includes you. I just walked in on
her bashing you in the middle of the capitol division office for everyone to hear.
basically saying who’s dick do I need to suck to get ahead in this place and going
through the whole story like she knew it firsthand from your s[e]paration today.
Id. ¶ 25. The plaintiff explained to the OPR Investigator that the statements in this text message
were not direct quotes, but rather “were paraphrasing” and that “she could not recall exactly what
Sergeant Breiterman said, although she was fairly certain Sergeant Breiterman did not use
profanity.” Id. ¶¶ 26–27. Shortly after the interview with OPR, the plaintiff “learned that her
status in the investigation had been changed to ‘Respondent’” rather than witness. Id. ¶ 30.
“On or before December 31, 2014, [USCP] learned that the [complainant] filed a complaint with
the Office of Compliance regarding her treatment by [USCP].” Id. ¶ 31. Several days later, on
January 5, 2015, in accordance with OPR’s instructions, the plaintiff was charged with violating
a USCP Rule of Conduct against making “Improper Remarks,” by sending an “exaggerated text
message to [the complainant] . . . . contain[ing] information that was very specific and sexually
graphic. Brady’s text message was malicious, untruthful, and frivolous against or about other
members of the Department in the workplace, and contributed to the filing of the complaint [by
3
the complainant].” Id. ¶ 33 (citing “January 14, 2015 CP-534 Forfeiting Eight Hours of
Time/Pay”).1
The plaintiff apparently then filed her own complaint of retaliation, “completed
counseling and mediation required by 2 U.S.C. §§ 1402 and 1403 and received notice that
mediation ended on May 15, 2015.” Id. ¶ 4. As stated in the End of Mediation Notice, the
plaintiff’s mediation request “was based upon allegations that the employing office violated
sections 201 and 207 of the [CAA].” Compl. Ex. A (“End of Mediation Notice”) at 1, ECF No.
7. On August 12, 2015, the plaintiff filed the complaint initiating this lawsuit. See generally
Compl.
II. LEGAL STANDARD
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the
“complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that
is plausible on its face.” Wood v. Moss, 134 S. Ct. 2056, 2067 (2014) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)). A claim is facially plausible when the plaintiff pleads factual content
that is more than “‘merely consistent with’ a defendant’s liability,” but allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.
at 678 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556–57 (2007)); see also Rudder v.
Williams, 666 F.3d 790, 794 (D.C. Cir. 2012). Although “detailed factual allegations” are not
required to withstand a Rule 12(b)(6) motion, a complaint must offer “more than labels and
conclusions” or “formulaic recitation of the elements of a cause of action” to provide
1
The plaintiff seeks relief in the form of a declaratory judgment that the defendant violated her rights and
“backpay and related benefits caused by the [] Employer’s retaliatory actions.” Compl. at 7. The plaintiff does not
otherwise disclose the amount of such damages at issue, but based upon the title of the disciplinary charge brought
against the plaintiff, due to her infraction of “Improper Remarks,” she was required to “Forfeit[] Eight Hours of
Time/Pay.” Id. ¶ 33.
4
“‘grounds’” of “‘entitle[ment] to relief,’” Twombly, 550 U.S. at 555 (alteration in original)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)), and “nudge[ ] [the] claims across the line
from conceivable to plausible,” id. at 570. Thus, “a complaint [does not] suffice if it tenders
‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 557).
In considering a motion to dismiss for failure to plead a claim on which relief can be
granted, the court must consider the complaint in its entirety, accepting all factual allegations in
the complaint as true, even if doubtful in fact, and construe all reasonable inferences in favor of
the plaintiff. Twombly, 550 U.S. at 555; Nurriddin v. Bolden, 818 F.3d 751, 756 (D.C. Cir.
2016) (“We assume the truth of all well-pleaded factual allegations and construe reasonable
inferences from those allegations in a plaintiff’s favor.” (citing Sissel v. U.S. Dep’t of Health &
Human Servs., 760 F.3d 1, 4 (D.C. Cir. 2014))). The Court “need not, however, ‘accept
inferences drawn by [a] plaintiff[] if such inferences are unsupported by the facts set out in the
complaint.’” Nurriddin, 818 F.3d at 756 (alteration in original) (quoting Kowal v. MCI
Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)).
III. DISCUSSION
The plaintiff brings this lawsuit under the CAA, 2 U.S.C. §§ 1301 et seq., which, in
relevant part, applies Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e et seq., and ten other
remedial federal statutes, “to the legislative branch of the Federal Government,” 2 U.S.C. §
1302(a). Similar to the statutory framework set up in Title VII, the CAA requires plaintiffs to
first exhaust their administrative remedies. 2 U.S.C. § 1401; see also Blackmon-Malloy v. U.S.
5
Capitol Police Bd., 575 F.3d 699, 705 (D.C. Cir. 2009) (finding CAA’s counseling and
mediation exhaustion requirements to be jurisdictional).2
Fully exhausted claims of discrimination under the CAA are analyzed under the three-
part framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Howard v.
Office of the Chief Admin. Officer of the United States House of Representatives, 720 F.3d 939,
947–48 (D.C. Cir. 2013) (applying McDonnell Douglas framework to employment
discrimination suit brought under CAA); Brady v. Office of the Sergeant at Arms, 520 F.3d 490,
492–94 (D.C. Cir. 2008) (same). Under this framework, the plaintiff bears the initial burden of
making out a prima facie case of discrimination, by showing that: “(1) [s]he engaged in protected
activity; (2) [s]he was subjected to an adverse employment action; and (3) there was a causal link
between the protected activity and the adverse action.” Hamilton v. Geithner, 666 F.3d 1344,
1357 (D.C. Cir. 2012) (internal quotation marks omitted); see also Nurriddin, 818 F.3d at 758
n.6 (“A prima facie case of retaliation requires that a plaintiff demonstrate she: 1) engaged in a
statutorily protected activity; 2) suffered a materially adverse action by her employer; and that 3)
a causal connection existed between the two.”).
If the prima facie case is made, the defendant employer must establish that the adverse
employment action was taken for a legitimate, nondiscriminatory reason. Youssef v. FBI, 687
2
To administratively exhaust a CAA claim, the plaintiff must, first, make a “request [for] counseling by the
Office [of Compliance]” within 180 days of the date of the alleged violation. 2 U.S.C. § 1402(a). Second, within
fifteen days after the plaintiff’s receipt of “notice of the end of the counseling period,” id. § 1403(a), which lasts no
longer than thirty days, id. § 1402(b), the employee shall file a request for mediation, id. § 1403(a). Third, “[n]ot
later than 90 days, but not sooner than 30 days, after the end of the period of mediation,” the plaintiff may either file
a complaint with the OOC or file a civil action in “the United States district court for the district in which the
employee is employed or for the District of Columbia.” Id. § 1404. A civil action may only be commenced,
however, by a plaintiff who “seek[s] redress for a violation for which the employee has completed counseling and
mediation.” Id. § 1408(a). Here, the plaintiff alleges that she completed the “counseling and mediation required” in
the proper timeline, see Compl. ¶ 4; Compl. Ex. A, and the defendant does not dispute that she exhausted her
administrative remedies as to the retaliation claim, as required by the CAA, see generally Def.’s Mem. Supp. Mot.
Dismiss (“Def.’s Mem.”), ECF No. 4-1.
6
F.3d 397, 402 (D.C. Cir. 2012). When “‘the employer asserts a legitimate, non-discriminatory
reason’ for an adverse employment action, the prima facie case ‘drops out of the picture,’ and a
plaintiff must simply prove ‘that the employer’s asserted non-discriminatory reason was not the
actual reason and that the employer intentionally discriminated against the employee on the basis
of race, color, religion, sex, or national origin.’” Ponce v. Billington, 679 F.3d 840, 844 (D.C.
Cir. 2012) (quoting Brady, 520 F.3d at 493–94).
Relevant to the particular allegations in this complaint, the CAA prohibits discrimination
based on sex, 2 U.S.C. § 1311(a)(1), and includes an anti-retaliation provision, which makes it
“unlawful for an employing office to intimidate, take reprisal against, or otherwise discriminate
against, any covered employee because the covered employee has opposed any practice made
unlawful by this chapter, or because the covered employee has initiated proceedings, made a
charge, or testified, assisted, or participated in any manner in a hearing or other proceeding
under this chapter,” 2 U.S.C. § 1317(a) (emphasis supplied). The two categories of conduct
triggering the anti-retaliation provision are referred to as the “opposition” and “participation”
clauses. See Crawford v. Metro. Gov’t of Nashville & Davidson Cty., 555 U.S. 271, 274 (2009);
Moran v. United States Capitol Police Bd., 887 F. Supp. 2d 23, 30 (D.D.C. 2012). When
evaluating discrimination or retaliation claims under the CAA, Title VII standards apply. See
Brady, 520 F.3d at 493; Blackmon-Malloy, 575 F.3d at 701.
Here, the defendant contends that the plaintiff’s complaint must be dismissed for the
fundamental reason that the plaintiff “did not engage in protected activity made unlawful under
the [CAA], and, thus, cannot establish a claim of retaliation under the CAA.” Def.’s Mem.
Supp. Mot. Dismiss (“Def.’s Mem.”) at 1, ECF No. 4-1. The Court agrees that the plaintiff has
not alleged that she “oppose[d]” any practice made unlawful under the CAA, id. at 6–8, nor did
7
she in any other way allege that she “participated in protected activity . . . under the CAA,”
Def.’s Reply Supp. Mot. Dismiss (“Def.’s Reply”) at 5–6, ECF No. 6. Accordingly, the plaintiff
has failed sufficiently to allege even the first prong of a prima facie case, and as a result her
complaint has failed to state a retaliation claim. See Howard R.L. Cook & Tommy Shaw Found.
ex rel. Black Emps. of the Library of Cong., Inc. v. Billington, 737 F.3d 767, 772 (D.C. Cir.
2013) (affirming dismissal where “plaintiffs have failed to allege the first element of a Title VII
retaliation claim: that an employee engaged in statutorily protected activity”).3 The plaintiff’s
failure to plead protected oppositional or participatory activity is discussed in more detail below.
A. OPPOSITION CLAUSE
The defendant correctly points out that neither the plaintiff’s gossip to another employee,
nor her role in the related OPR investigation amounts to protected oppositional activity. This is
because glaringly absent from the plaintiff’s complaint is any allegation that she communicated
discriminatory conduct based on a protected class to her employer. As the D.C. Circuit
observed, “Not every complaint garners its author protection under Title VII.” Broderick v.
Donaldson, 437 F.3d 1226, 1232 (D.C. Cir. 2006) (citing Pope v. ESA Servs., Inc., 406 F.3d
3Even assuming, arguendo, that the plaintiff sufficiently pleads oppositional or participatory protected
activity, her complaint must still be dismissed for failure to plead a causal link between that activity and the
discipline she received. Where, as here, the plaintiff has included in her complaint allegations regarding the
defendant’s explanation for the plaintiff’s discipline, Compl. ¶¶ 25, 33, with the conclusory allegation that such
explanation is pretext, id. ¶ 37, she must also allege facts supporting that conclusion, see Ey v. Office of the Chief
Admin. Officer, 967 F. Supp. 2d 337, 342 (D.D.C. 2013). Thus, the key question before the Court is whether, to
survive the defendant’s motion to dismiss, the plaintiff has sufficiently pled facts to sustain her claim that the
defendant’s explanation for her discipline was pretextual and that her discipline was retaliatory for her alleged
protected conduct. See, e.g., Sheller-Paire v. Gray, 888 F. Supp. 2d 34, 41 (D.D.C. 2012) (dismissing complaint
where “the plaintiff alleges no fact from which a reasonable person could infer that his status as an African-
American or his alleged disability caused him to suffer an adverse employment action”). The plaintiff has failed to
do so since she has conceded that she sent a text message to a co-worker with inappropriate content and that this
conduct formed the grounds for her discipline. See Compl. ¶¶ 24–26. The plaintiff’s reliance on conclusory
boilerplate language that her discipline was instead somehow retaliatory is wholly insufficient. See id. ¶¶ 36–37.
For this independent reason, the plaintiff’s claim fails. See Twombly, 550 U.S. at 555 (“[A] plaintiff’s obligation to
provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.”); see generally Moran, 887 F. Supp. 2d at 38–39
(granting defendant’s motion for summary judgment where plaintiff failed to “disprove the employer’s proffered
explanation for its employment action”).
8
1001, 1010 (8th Cir. 2005) and Sitar v. Ind. Dep’t of Transp., 344 F.3d 720, 727–28 (7th Cir.
2003)). “To oppose a discriminatory employment practice, conduct that is statutorily protected,
plaintiff is required to communicate to [her] employer that [she] believes the employer’s conduct
is, in fact, discriminatory.” Moore v. Office of the Architect of the Capitol, 828 F. Supp. 2d 254,
257 (D.D.C. 2011) (citing Crawford, 555 U.S. at 274) (emphasis in original). “‘While no “magic
words” are required, the complaint must in some way allege unlawful discrimination,’—that is,
discrimination on the basis of a protected characteristic.” Middlebrooks v. Godwin Corp., 722 F.
Supp. 2d 82, 89 (D.D.C. 2010) (quoting Broderick, 437 F.3d at 1232); see also Budik v. Howard
Univ. Hosp., 986 F. Supp. 2d 1, 8–9 (D.D.C. 2013) (“[A] plaintiff’s complaint to her employer,
the EEOC, or another appropriate person or entity must allege discrimination on the basis of
membership in a protected class in order for that complaint to in turn constitute the type of
statutorily protected activity contemplated by Title VII’s retaliation provision.” (emphases
omitted)).
Even viewing as true all of the allegations in the complaint, the plaintiff fails to assert
facts suggesting that she was opposing discrimination based on a protected class or, in particular,
that she was opposing a female Sergeant’s sexual harassment of another woman, the
complainant. Instead, the plaintiff’s text message to the complainant merely relates that the
Sergeant herself was frustrated with her career path within the USCP and was targeting “anyone
in her path.” Compl. ¶ 25. Thus, the Sergeant’s overheard words did not appear to be directed at
any particular protected group.4
Likewise, the plaintiff alleges that she told OPR during her interview “that she was
simply trying to report Sergeant Breiterman’s harassing comments.” Id. ¶ 28. Reporting general
4
The defendant also argues that “there are simply no facts in the Complaint that Plaintiff reported rumors to
her employer.” Def.’s Mem. at 6; see also Def.’s Reply at 2 (“[S]ending gossip to a friend is not activity protected
9
“harass[ment],” however, is not the same as alleging that she reported sexual harassment, or
harassment based on any other protected characteristic. Oncale v. Sundowner Offshore Servs.,
523 U.S. 75, 80 (1998) (“Title VII does not prohibit all verbal or physical harassment in the
workplace; it is directed only at ‘discriminat[ion] . . . because of . . . sex.’” (emphasis in
original)). In the course of the plaintiff’s communications both to the complainant and to OPR
regarding Sergeant Breiterman’s overheard comments, the plaintiff did not once suggest that
what she overheard Sergeant Breiterman say had any link to the complainant’s membership in a
protected class. Thus, the plaintiff’s allegations regarding her text message to the complainant
and her subsequent interview with OPR are wholly insufficient to allege protected oppositional
activity under the CAA. See Slate v. Public Def. Serv., 31 F. Supp. 3d 277, 308–09 (D.D.C.
2014) (finding complaints that “made no mention of discrimination” did not amount to protected
activity); Beyene v. Hilton Hotels Corp., 815 F. Supp. 2d 235, 247 (D.D.C. 2011) (granting
summary judgment on retaliation claim where there was “no evidence that [the plaintiff’s]
complaint to [the defendant] alleged unlawful discrimination based on his membership in a
protected class”); Lemmons v. Georgetown Univ. Hosp., 431 F. Supp. 2d 76, 92–93 (D.D.C.
2006) (granting summary judgment where sole protected activity plaintiff identified was her
by the CAA.”). The Court need not address whether the plaintiff’s conduct amounts to reporting discriminatory
conduct to her employer because the complaint is dismissed on other grounds. In any event, other courts have found
that reporting discriminatory conduct to a colleague, but not a supervisor, is sufficient to amount to oppositional
conduct. See, e.g., Yazdian v. ConMed Endoscopic Techs., Inc., 793 F.3d 634, 647 (6th Cir. 2015) (finding
“protected activity includes complaints to co-workers, reporters, and managers”); Schumacher v. Fairfield Resorts,
Inc., 2007 U.S. Dist. LEXIS 100247, at *76 (D.R.I. June 8, 2007) (“[C]omplaints made to co-workers about
discrimination based on sex are protected activity under Title VII.”). Further, the means of communication used to
report discrimination are immaterial as “[i]t is well settled that Title VII protects informal, as well as formal,
complaints of discrimination.” Richardson v. Gutierrez, 477 F. Supp. 2d 22, 27 (D.D.C. 2007).
10
complaint of harassment against her supervisor that did not refer to harassment or discrimination
based on any protected category under Section 1981).
To this point, “[a]n employee seeking the protection of the opposition clause [must]
demonstrate a good faith, reasonable belief that the challenged practice violates Title VII.”
George v. Leavitt, 407 F.3d 405, 417 (D.C. Cir. 2005) (alteration in original) (citation omitted).
The plaintiff’s allegation of a single-isolated incident of gossip, even if sexual in nature, is
simply insufficient to state that the plaintiff had a reasonable belief that she was challenging
conduct that violated the CAA. See Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 270–71
(2001) (finding no reasonable belief that a brief discussion of and laughter over a sexually-
explicit statement in a job applicant’s psychological report violated Title VII); see also Leavitt,
407 F.3d at 408 (finding plaintiff could not have reasonably believed that co-workers telling her
to “‘go back to Trinidad’” or to “‘go back to where [she] came from,’ . . . . shout[ing] at her,
[telling] her that she should never have been hired, and [telling] her to ‘shut up,’” constituted a
violation of Title VII). For this reason, the plaintiff’s complaint fails to allege sufficient facts
regarding oppositional conduct to withstand a motion to dismiss.
B. PARTICIPATION CLAUSE
Further, plaintiff has not pled that she “initiated proceedings, made a charge, or testified,
assisted, or participated in any manner in a hearing or other proceeding under this chapter,” 2
U.S.C. § 1317(a), for the straightforward reason that an OPR investigation, as alleged here, is not
a proceeding under the CAA. In the context of a Title VII claim, the D.C. Circuit has held that
“[t]he participation clause speaks in clear, absolute terms, and has accordingly been interpreted
as shielding recourse to the EEOC.” Parker v. Baltimore & O. R. Co., 652 F.2d 1012, 1019
(D.C. Cir. 1981) (emphasis added). As such, district courts in this jurisdiction and other circuits
11
have found the participation clause to protect only activity under EEOC proceedings. See
Townsend v. Benjamin Enters., Inc., 679 F.3d 41, 50 (2d Cir. 2012) (finding that under the plain
language of the participation clause, “internal investigations not associated with a formal EEOC
charge” do not qualify as protected activity); Weizel v. Bernstein, 436 F. Supp. 2d 110, 119
(D.D.C. 2006) (proceedings not under Title VII are not protected under the participation clause).
Where, as here, the CAA applies, not Title VII, “protection under the participation clause only
extends to complaints made to the Office of Compliance [“OOC”], which is the body that
receives and responds to employment claims under the CAA.” Moran, 887 F. Supp. 2d at 34 n.9
(finding plaintiff not protected under participation clause where complaint filed with OPR, not
with the OOC). The plaintiff has alleged only that she participated in an investigation with OPR,
not OOC. Compl. ¶ 13. Accordingly, the plaintiff’s allegations regarding her participation in the
OPR investigation are not sufficient to assert protected participation activity and, thus, also fail
to support a retaliation claim under the CAA.
IV. CONCLUSION
For the reasons summarized above, the defendant’s motion to dismiss is granted and the
plaintiff’s complaint is dismissed in its entirety.5
5
The plaintiff’s request that “this Court grant plaintiff leave to amend, in order to cure any alleged
deficiencies in the pleadings,” Pl.’s Mem. Opp’n Def.’s Mot. Dismiss at 6, ECF No. 5, is denied. While amendment
of a complaint to overcome deficiencies must be freely given “when justice so requires,” Fed. R. Civ. P. 15(a)(2),
the plaintiff fails to comply with the requirement in this Circuit that “‘a request for leave [to amend] must be
submitted in the form of a written motion’ and the motion must ‘state with particularity the grounds for seeking the
order [and] state the relief sought.’” Jones v. Horne, 634 F.3d 588, 603 n.7 (D.C. Cir. 2011) (quoting Benoit v. U.S.
Dep’t of Agric., 608 F.3d 17, 21 (D.C. Cir. 2010)) (alterations in original); LCvR 15.1 (requiring that a “motion for
leave to file an amended pleading shall be accompanied by an original of the proposed pleading as amended”). “[A]
bare request in an opposition to a motion to dismiss—without any indication of the particular grounds on which
amendment is sought—does not constitute a motion within the contemplation of Rule 15(a).” Rollins v. Wackenhut
Servs., Inc., 703 F.3d 122, 130 (D.C. Cir. 2012) (quoting Belizan v. Hershon, 434 F.3d 579, 582 (D.C. Cir. 2006))
(finding “without merit” plaintiff’s argument that district court erred by denying her leave to amend the complaint
when that request was expressed only in opposition to motion to dismiss) (internal quotation marks omitted).
12
An appropriate order will accompany this Memorandum Opinion.
Digitally signed by Hon. Beryl A. Howell
Date: August 8, 2016 DN: cn=Hon. Beryl A. Howell, o=U.S.
District Court for the District of Columbia,
ou=Chief Judge,
email=Howell_Chambers@dcd.uscourts.g
ov, c=US
__________________________
Date: 2016.08.08 15:55:51 -04'00'
BERYL A. HOWELL
Chief Judge
13