REPORT AND RECOMMENDATION

KATHERINE P. NELSON, Magistrate Judge.

This action is before the Court on a motion filed by Hallie S. Dixon (docs. 14-15), defendant herein, to dismiss plaintiff's Amended Complaint (doc. 12). This matter has been referred to the undersigned Magistrate Judge for entry of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). Plaintiff Kathy K. Wood has responded (Doc. 17). Although permitted to file a reply (doc. 16), Dixon has neither filed a reply nor sought an extension of time within which to file a reply. Upon consideration of the pleadings, and for the reason explained herein it is RECOMMENDED that the motion to dismiss the Amended Complaint be DENIED.

I. Applicable Background

Wood filed her original complaint against Hallie Dixon on May 24, 2013 (doc. 1). Wood sued Dixon in her official capacity as the District Attorney of Baldwin County, Alabama, alleging that Dixon unlawfully discriminated against her on the basis of age, in violation of the Age Discrimination in Employment Act of 1967 (the "ADEA"), 28 U.S.C. § 621 et seq. (doc. 1). According to this complaint, Wood, who is over the age of forty, was hired by the Baldwin County District Attorney's Office as a Victim Services Officer (a "VSO") in January 1990. (See Doc. 1, ¶¶ 7, 10). Defendant Dixon was elected District Attorney in June 2010 and assumed that office in January 2011 (see id., ¶ 11). That same month, Dixon "substantially reduced Wood's salary"—such that it "was commensurate to a first-year VSO"; Wood's "duties and responsibilities did not change[,]" however (id., ¶ 12). Wood alleges that "[t]he salar[ies] of younger and substantially less experienced VSO[]s were not reduced nor were they asked to reduce their salaries" (id., ¶ 13), and that Dixon terminated her on or about February 18, 2011, replacing her with "a 22[-]year old female, who had substantially less experience and qualifications to hold the position of VSO." (Id., ¶¶ 14, 17).

Dixon filed a motion to dismiss the Original Complaint, alleging that Wood's lawsuit is barred by sovereign immunity, under the Eleventh Amendment to the United States Constitution (docs. 4-5). On November 5, 2013, the undersigned entered a Report and Recommendation (doc. 9) that the motion to dismiss be granted on the grounds, in sum, that the lawsuit was barred by the Eleventh Amendment and, because Wood "is no longer employed by the Baldwin County District Attorney's Office — and because she is not seeking reinstatement — she simply lacks standing to assert prospective injunctive relief pursuant to Ex parte Young[, 209 U.S. 123 (1908)]." (Doc. 9 at 10). See Emmons v. City Univ. of N.Y., 715 F.Supp.2d 394, 406-07 (E.D.N.Y. 2010)("One narrow caveat to state sovereign immunity is the doctrine, first enunciated in Ex Parte Young, [], that `the Eleventh Amendment does not prevent federal courts from granting prospective injunctive relief' against state officials `to prevent a continuing violation of federal law' because such conduct is not considered to be state action.")(citing Green v. Mansour, 474 U.S. 64, 68 (1985); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102 (1984)). The Report and Recommendation was adopted by the District Court on November 26, 2013, but the Court withheld dismissing the case and allowed Wood an opportunity to file an amended complaint (doc. 11).

Wood filed an Amended Complaint on December 2, 2013 (doc. 12). Dixon filed a motion to dismiss the Amended Complaint on December 16, 2013 (docs. 14-15), arguing, in sum, that Wood's Amended Complaint cannot relate back to the Original Complaint under Rule 15 because "this Honorable Court expressly adopted the reasoning of the Report and Recommendation of United States Magistrate Judge Katherine P. Nelson, wherein Judge Nelson expressly concluded that the District Court lacked subject matter jurisdiction over the Plaintiff's Original Complaint, and that the Plaintiff lacked standing to pursue her ADEA claims against this Defendant." (Doc. 15 at 6). Dixon further contends that, absent any authorized relation back, Wood's Amended Complaint was not timely filed because it, namely the Amended Complaint, was "filed well beyond the required 90-day limitations period from the receipt of Plaintiff's right-to-sue letter, which was mailed on February 27, 2013." (Doc. 15 at 4). Wood filed a response on January 12, 2014 (doc. 17), arguing, in sum, that her Amended Complaint properly relates back under Rule 15 because it merely "redefine[ed] the relief sought [to include reinstatement] and did not alter either the facts or the claims asserted in the Original Complaint." (Docs. 12, 17 at 4). According to her prayer for relief in the Amended Complaint, Wood seeks, in pertinent part:

(Doc. 12 at 7)(emphasis added).

II. Analysis.

When a party seeks to amend her complaint after a statutory deadline has passed, such as the 90-day deadline to file suit when the EEOC issues a right-to-sue letter in an ADEA case, that party must establish that the amendment is appropriate under Rule 15(c). Rule 15(c) sets forth the circumstances under which an amendment "relates back" to the date of the timely filed original pleading. If an amendment "relates back" under Rule 15(c), it is considered timely even though it was filed outside the application limitations period. Krupski v. Costa Crociere S.p.A, U.S., 560 U.S. 538, 541 (2010). Pursuant to Rule 15(c), an amendment to a proceeding relates back to the date of the original proceeding when:

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

In the instant case, the relation back issue falls under subsection (B) because the amendment merely redefined the relief sought by Woods to make it abundantly clear that she seeks reinstatement, a form of prospective relief which undisputedly brings the action within the ambit of Ex parte Young. Dixon actually received notice of Wood's claims, including her claim for reinstatement, on May 29, 2013, when served with plaintiff's complaint, which states in its introductory paragraph:

(Doc. 1 at 1, emphasis added). Wood's claims in the Amended Complaint certainly comply comply with Rule 15(c)(1)(B) which requires that they arose "out of the conduct, transaction, or occurrence set out-or attempted to be set out-in the original pleading." Fed.R.Civ.P. 15(c)(1)(B).1

The Court's initial determination that the Eleventh Amendment barred Wood's claim and she lacked standing was predicated on its determination that Wood had failed to assert the existence of a continuing violation and a claim for reinstatement. (Doc. 9 at 5-10). The Court acknowledged, however, that parties' agreement that "the Eleventh Amendment bars this lawsuit unless it fits under the Ex parte Young exception to sovereign immunity." (Id. at 3, comparing Doc. 5 at 3-6 with Doc. 7 at 1-4, emphasis in original). The Court also noted that:

(Id. at 10, n. 7). In Lassiter v. Alabama A & M University, Bd. of Trustees, 3 F.3d 1482, 1485 (11th Cir. 1993), the Eleventh Circuit held:

3 F.3d at 1485 (emphasis added). See also Cross v. State of Ala., State Dept. of Mental Health & Mental Retardation, 49 F.3d 1490, 1503 (11th Cir. 1995)("Appellees' request for reinstatement is not barred by the Eleventh Amendment."); Jeongah Kim v. Alabama Agr. and Mechanical University, 2013 WL 1834619, *2 (N.D. Ala. April 29, 2013)("Claims for declaratory relief and prospective injunctive relief against [defendants] in their official capacities, however, are not barred by Eleventh Amendment immunity."); Ross v. Meadows, 2010 WL 326168, * (N.D. Ga. January 21, 2010) (Plaintiff's request for reinstatement to her job is a cognizable request for prospective relief under the Ex parte Young doctrine.").

Wood has now made it clear, by setting forth her claim for reinstatement in her Prayer for Relief in the Amended Complaint, that she seeks prospective relief which is not barred by the Eleventh Amendment. (Doc. 12 at 7). Wood's Amended Complaint relates back to the filing of her Original Complaint on May 24, 2013, which is within 90-days of her receipt of the EEOC's right-to-sue letter, and is therefore timely filed under the ADEA. Dixon's motion to dismiss is due to be denied because Wood has established that subject matter jurisdiction exists in this Court and her ADEA claims for prospective relief are not barred by the Eleventh Amendment.

III. CONCLUSION

For the reasons set forth above, it is RECOMMENDED that the motion to dismiss the Amended Complaint (docs. 14-15) be DENIED.

IV. Notice of Right to File Objections

A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to this recommendation or anything in it must, within fourteen (14) days of the date of service of this document, file specific written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b); S.D. ALA. L.R. 72.4. In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the Magistrate Judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the Magistrate Judge is not specific.