UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

______________________________ ) EMYRTLE BENNETT, ) ) Plaintiff, ) ) v. ) Civil Action No. 10-1680 (RWR) ) KAYA HENDERSON et al., ) ) Defendants. ) ______________________________)

MEMORANDUM ORDER

Plaintiff Emyrtle Bennett brings claims of discrimination

and retaliation under the Age Discrimination in Employment Act

(“ADEA”), codified at

et seq., and the District

of Columbia Human Rights Act (“DCHRA”),

et

seq. Bennett has moved for leave to file a second amended

complaint, and the defendants, the Chancellor of the District of

Columbia Public Schools (“DCPS”) and the Attorney General of the

District of Columbia,1 have moved under Federal Rule of Civil

Procedure 12(b)(6) to dismiss the complaint.

A plaintiff may amend her complaint for a second time “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)(2). The decision to grant or deny leave to

1 Kaya Henderson and Irvin B. Nathan are substituted for Michelle Rhee and Peter Nickles under Fed. R. Civ. P. 25(d). - 2 -

amend is committed to the sound discretion of the district court.

Foman v. Davis,

(1962); James Madison Ltd. v.

Ludwig,

(D.C. Cir. 1996). Undue prejudice to

the opposing party may counsel against granting leave to amend.

Atchinson v. Dist. of Columbia,

(D.C. Cir.

1996).

The only proposed changes in Bennett’s proposed second

amended complaint clarify that she is suing the defendants in

their official capacities. Since the defendants acknowledge that

Bennett’s first amended complaint named the defendants in their

official capacities (Defs.’ Mem. of P. & A. in Supp. of Defs.’

Mot. to Dismiss at 5), granting leave to amend will not unduly

prejudice the defendants, and Bennett’s motion for leave to amend

will be granted.2

The defendants argue that because the complaint alleges

claims against the District of Columbia, they are not proper

defendants. (Defs.’ Mem. of P. & A. in Supp. of Defs.’ Reply to

Pl.’s Opp’n to Mot. to Dismiss at 2.) An agency or department

head is a proper defendant in ADEA and DCHRA suits involving

allegations of discrimination within those agencies or

departments. See Wilson v. U.S. Dep’t of Transp., Civil Action

No. 10-490 (RMC),

, at *9 (D.D.C. Jan. 4, 2011)

2 The defendants’ motion to dismiss will be directed at the second amended complaint. - 3 -

(ADEA); Mitchell v. Nat’l R.R. Passenger Corp.,

(D.D.C. 2005) (DCHRA). A suit against an officer in

his official capacity is “‘another way of pleading an action

against an entity of which [that] officer is an agent.’”

Kentucky v. Graham,

(1985) (quoting Monell v.

N.Y. City Dep’t of Social Servs.,

, 690 n.55 (1978)).

Since the complaint does not allege discrimination within the

Attorney General’s office, nor does it provide any other basis

for asserting a claim against the Attorney General, the Attorney

General is not a proper defendant and will be dismissed.

Although the complaint alleges discrimination within DCPS,

defendant Henderson is not a proper defendant because DCPS may

not be sued as a separate entity. See United States ex rel.

Davis v. Dist. of Columbia,

(D.D.C. 2008).

The defendants’ motion to dismiss therefore will be construed in

part as one to substitute the District of Columbia for the

Chancellor.3 See Henneghan v. DCPS,

(D.D.C. 2009) (substituting the District of Columbia for DCPS);

Azabdaftari v. Mayer, Civil Action No. 09-2166 (RWR),

, at *1 n.1 (D.D.C. Aug. 27, 2010) (construing motion to

dismiss in part as one to substitute the United States as the

3 Because the plaintiff served the District of Columbia Attorney General, the District of Columbia will be deemed to have sufficient notice of this action. See Henderson v. Williams, Civil Action No. 05-1966 (RWR),

, at *3 & n.6 (D.D.C. Mar. 12, 2007). - 4 -

proper party defendant where complaint alleged claims that could

be raised against only the United States). Accordingly, it is

hereby

ORDERED that the plaintiff’s second motion [10] to amend the

complaint be, and hereby is, GRANTED. The Clerk’s Office is

directed to docket as plaintiff’s second amended complaint the

second attachment to the plaintiff’s second motion to amend the

complaint. It is further

ORDERED that the defendants’ motion [5] to dismiss, be, and

hereby is, GRANTED in part. Defendant Irvin B. Nathan is

dismissed, and the District of Columbia is substituted for

defendant Kaya Henderson. It is further

ORDERED that defendant District of Columbia respond to the

complaint by February 18, 2011.

SIGNED this 28th day of January, 2011.

__________/s/_______________ RICHARD W. ROBERTS United States District Judge