UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ALEXANDRIA JONES,

Plaintiff, Civil Action No. 08-620 (CKK) v.

JANICE QUINTANA, et al.,

Defendants.

MEMORANDUM OPINION (October 26, 2009)

Plaintiff Alexandria Jones, a former employee of the District of Columbia Office of

Unified Communications (“OUC”), filed the above-captioned lawsuit against the District of

Columbia (“D.C.” or the “District”) and Janice Quintana, Director of the OUC (collectively,

with D.C., “Defendants”). In her original Complaint, filed on April 10, 2008, Plaintiff alleged

retaliation in violation of the D.C. Whistleblower Protection Act,

et

seq. (Count I); retaliation in violation of the D.C. Workers’ Compensation statute,

et seq. (Count II); and deprivation of her First Amendment Rights in violation of

(Count III). See Compl., Docket No. [1]. On January 2, 2009, Plaintiff

amended her complaint to assert two additional claims: a claim that Defendants failed to

provide a reasonable accommodation for her mental anxiety in violation of the ADA (Count

IV); and a claim that Defendants terminated her employment in retaliation for filing an EEO

complaint in violation of the ADA (Count V). See Am. Compl., Docket No. [19].

On January 30, 2009, Defendants filed a [20] Motion to Dismiss Plaintiff’s Amended

Complaint, which the Court subsequently granted-in-part and denied-in-part. See Civ. Act. No. 08-620, Mem. Op. (D.D.C. Sept. 30, 2009). More specifically, the Court held as follows:

(1) With respect to Count I, Defendants’ motion was GRANTED insofar as Defendants asserted that Count I must be dismissed as against Defendant Quintana, but was DENIED insofar as Defendants asserted that Count I must be dismissed as against the District;

(2) With respect to Count II, Defendants’ motion was GRANTED, and Count II was dismissed in its entirety;

(3) With respect to Count III, Defendants’ motion was

(a) DENIED insofar as Defendants asserted that Plaintiff failed to sufficiently allege that she spoke out as a private citizen;

(b) GRANTED insofar as Defendants asserted that Plaintiff’s Section 1983 claim against Defendant Quintana in her official capacity should be dismissed as redundant;

(c) DENIED WITHOUT PREJUDICE insofar as Defendants asserted that Defendant Quintana is entitled to qualified immunity;

(D) GRANTED insofar as Defendants sought to dismiss Plaintiff’s Section 1983 claim against the District;

(4) With respect to Count IV, Defendants’ motion was GRANTED, and Count IV was dismissed in its entirety; and

(5) With respect to Count V, Defendants’ motion was DENIED.

Accordingly, as the Court made clear in its Memorandum Opinion, the following two

claims survived Defendants’ [20] Motion to Dismiss: Count I (D.C. Whistleblower Protection

Act,

et seq.) as against the District, and Count V (retaliation in

violation of the ADA,

(a)), as against the District.

.

With respect to Plaintiff’s Section 1983 claim as against Defendant Quintana,

however, the Court denied Defendants’ motion to dismiss without prejudice, noting that the

2 Amended Complaint did not indicate whether Plaintiff intended to bring suit against

Defendant Quintana in her individual or official capacity and that the Court was unable to

conclude on the record then before it whether Plaintiff meant to assert her Section 1983 claim

against Defendant Quintana in her official capacity and/or individual capacity. The Court

concluded that it was “unfair to Defendant Quintana to require her to advance a claim of

qualified immunity without specific notice as to the exact nature of the factual allegations

against her in her personal capacity.”

. The Court therefore held that, to the extent

Plaintiff intended to allege her Section 1983 claim against Defendant Quintana in her

individual capacity as well as in her official capacity, she was required to amend her

complaint, by no later than October 16, 2009, to specify that she intended to sue Defendant

Quintana in her individual capacity and to allege facts sufficient to support her claim that

Defendant Quintana should be held personally liable. The Court further held that, in the event

Plaintiff amended her complaint to specify that her Section 1983 claim is asserted against

Defendant Quintana in her individual capacity, Defendant Quintana would be permitted an

opportunity to file a renewed motion with respect to her claim of qualified immunity.

.

On October 5, 2009, Plaintiff filed a document captioned the “Second Amended

Complaint,” as permitted by the Court’s Memorandum Opinion. See Docket No. [32]. By

minute order dated that same day, the Court noted, however, that Plaintiff’s Second Amended

Complaint contains only her amended Section 1983 Claim and related factual allegations

against Defendant Quintana and does not include any other factual allegations and/or legal

claims. 10/5/09 Min. Order. In other words, Plaintiff’s Second Amended Complaint omits

3 any reference to — and therefore appears to abandon — Plaintiff’s claims under the D.C.

Whistleblower Protection Act,

et seq. and for retaliation in violation of

the ADA,

(a), both of which the Court held survived Defendants’ motion to

dismiss. It was therefore unclear to the Court whether Plaintiff, by filing the Second

Amended Complaint, had intended to abandon these remaining claims or whether her failure

to include such claims and related factual allegations in her Second Amended Complaint was

merely an oversight on her part. In an effort to provide Plaintiff an opportunity to clarify

which precise claims she intended to continue to pursue in this litigation, the Court issued a

Minute Order dated October 5, 2009, which provided, in relevant part, that:

[i]f, as the Court assumes, Plaintiff intends to proceed not only with her amended Section 1983 Claim but also with those claims that survived Defendants' motion to dismiss (i.e., Counts I and V as against the District), Plaintiff must re-file, by no later than October 16, 2009, a Second Amended Complaint that includes all facts and remaining legal claims at issue in a single document.

Significantly, Plaintiff failed to do so by the October 16, 2009 deadline, or, indeed, at anytime

thereafter.

Nonetheless, because Plaintiff’s Second Amended Complaint made clear that she

intended to bring her Section 1983 claim against Defendant Quintana in her individual

capacity, the Court, as it previously indicated it would do, permitted Defendants to file a

renewed motion with respect to Plaintiff’s amended Section 1983 claim as against Defendant

Quintana. See 10/5/09 Min. Order. Defendants did so on October 22, 2009, filing a Motion

to Dismiss Plaintiff’s Second Amended Complaint. See Docket No. [33]. Notably, given that

Plaintiff had not attempted to re-file a Second Amended Complaint as provided by the Court’s

October 5, 2009 Minute Order, Defendants assumed that Plaintiff’s Second Amended

4 Complaint included only her Section 1983 claim against Defendant Quintana (i.e., that the

remaining claims had been abandoned) and moved to dismiss her Second Amended

Complaint in its entirety based upon the claim of qualified immunity.

Upon receipt of Defendants’ motion, the Court, in an abundance of caution, issued yet

another Minute Order on October 23, 2009, once again alerting Plaintiff to her failure to

incorporate any additional facts or legal claims in her Second Amended Complaint. See

10/23/09 Min. Order. In so doing, the Court explicitly placed Plaintiff on notice that, given

her failure to indicate to the Court her intent to proceed with either Count I or Count V of her

Amended Complaint, it “shall assume that Plaintiff intends to proceed ONLY with her

amended Section 1983 claim and that she has abandoned all other remaining claims and

factual allegations that are not included in her Second Amended Complaint as attached at

Docket No. 32.”

In response, Plaintiff filed a [35] Status Report with the Court dated October 24,

2009.1 Plaintiff’s Status Report states in full:

1. Plaintiff does not intend to relitigate any issue that was decided by the court in its September 30, 2009 memorandum opinion.

2. Plaintiff does not intend to file any response to defendants’ motion to dismiss plaintiff’s second amended complaint.

(emphasis in original). Noticeably, Plaintiff does not attempt to correct the assumption

made by both this Court and Defendants that she has abandoned all other claims, save for her

1 The Court notes that Plaintiff, in addition to the status report referenced above, filed a second status report on October 24, 2009. See Docket No. [34]. It appears, however, that this second status report was filed in error, as it is dated October 28, 2008, and relates to a dispositive motion filed by Defendants in June of 2008, which was denied without prejudice on December 29, 2008. 5 Section 1983 claim against Defendant Quintana.

Accordingly, based on Plaintiff’s express representations in this most recent [35]

Status Report, the Court concludes that Plaintiff intends her Second Amended Complaint to

include only her Section 1983 Claim against Defendant Quintana and that she has

affirmatively abandoned all other claims (including the two claims that survived Defendants’

[20] Motion to Dismiss). As described above, the Court has provided Plaintiff —who is

represented by counsel in this matter — multiple opportunities to re-file a Second Amended

Complaint that includes not only her Section 1983 claim against Defendant Quintana but also

the two claims that survived Defendants’ [20] Motion to Dismiss (i.e., Counts I and V as

against the District). Moreover, the Court has also made abundantly clear that Plaintiff’s

failure to do so shall be treated as an express abandonment of such claims. Nonetheless,

Plaintiff has taken no action to re-file a Second Amended Complaint that includes Counts I

and V as against the District nor has she otherwise indicated her intent at this time to pursue

any claims other than her Section 1983 claim against Defendant Quintana. Plaintiff also now

concedes the merits of Defendants’ [33] Motion to Dismiss Plaintiff’s Second Amended

Complaint, which is premised on the assumption that Plaintiff intends to pursue only her

Section 1983 claim. Accordingly, given Plaintiff’s repeated failure to indicate to the contrary,

the only reasonable conclusion that may be reached is that Plaintiff has expressly chosen to

abandon Counts I and V as alleged against the District.

In addition, the Court understands Plaintiff to have conceded the merits of Defendants’

[33] Motion to Dismiss. Plaintiff, in her Status Report, explicitly states that she “does not

intend to file any response to defendants’ motion to dismiss plaintiff’s second amended

6 complaint.” Pl.’s Status Rep., Docket No. [35]. In light of this express representation, it is

readily apparent that Plaintiff has conceded the merits of Defendant Quintana’s qualified

immunity claim with respect to Plaintiff’s Section 1983 claim. The Court shall therefore

GRANT Defendants’ [33] Motion to Dismiss as conceded, and Plaintiff’s Second Amended

Complaint is DISMISSED in its entirety.2 An appropriate Order accompanies this

Memorandum Opinion.

Date: October 26, 2009

/s/ COLLEEN KOLLAR-KOTELLY United States District Judge

2 In light of this decision, the Court’s October 23, 2009 Minute Order requiring Defendants to file a supplemental notice regarding case law relevant to their qualified immunity claim is now moot. See Oct. 23, 2009 Min. Order. 7