United States District Court, N.D. Oklahoma
ROBIN D. JONES, Plaintiff,
MEGAN J. BRENNAN, Postmaster General, Defendant.
OPINION AND ORDER
V. EAGAN UNITED STATE DISTRICT JUDGE.
before the Court is plaintiff's Motion to Amend (Dkt. #
40). Plaintiff asks the Court for leave to file a second
amended complaint in light of allegedly new information
discovered during the deposition of defendant's 30(b)(6)
representative. Defendant asks the Court to deny
plaintiff's motion, arguing that the time for amendment
is long passed, that defendant would be prejudiced by
amendment, and that plaintiff has failed to provide a proper
reason for her delay. Dkt. # 42.
case arises out of defendant's alleged failure to
accommodate plaintiff's high-risk pregnancy and alleged
retaliation against plaintiff for requesting an accommodation
for her high-risk pregnancy. Specifically, plaintiff alleges
that, after plaintiff's doctor advised that she could not
stand for more than four hours a day, defendant failed to
accommodate plaintiff and instead “walked plaintiff off
the clock” after four hours of work and docked her sick
days for the four remaining hours of her shift. See
Dkt. # 17, at 5-10.
filed this case on January 28, 2016, alleging discrimination
and retaliation on the basis of race and gender in violation
of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq. (Title VII), and failure to
accommodate and retaliation in violation of the
Rehabilitation Act, 29 U.S.C. § 701 et seq.
Dkt. # 1. The Court granted in part defendant's first
motion to dismiss (Dkt. # 9), dismissing plaintiff's
Title VII race discrimination and Rehabilitation Act claims.
On September 14, 2016, plaintiff filed an amended complaint
(Dkt. # 17) alleging discrimination and retaliation on the
basis of gender under Title VII and retaliation under the
Rehabilitation Act. Defendant filed a second motion to
dismiss (Dkt. # 19), asking the Court to dismiss
plaintiff's Rehabilitation Act claim, which the Court
denied on December 6, 2016. Dkt. # 30. The deadline for
motions for joinder of additional parties and/or amendment to
the complaint was July 15, 2016. Dkt. # 13. This case has
been pending over 15 months, and the parties are proceeding
under a second amended scheduling order (Dkt. # 36). The
discovery cutoff is June 29, 2017.
now moves for leave to file a second amended complaint,
adding an allegation that defendant “engaged in a
policy, pattern, practice, and custom of systematic gender
discrimination against workers with pregnancy-related work
restrictions.” Dkt. # 40, at 2. Plaintiff asserts that
she could not have known that defendant's allegedly
discriminatory treatment of her was pursuant to policy and
not “the result of specific and individualized
retaliation and spite against [plaintiff].” Dkt. # 40,
at 2. Plaintiff asserts that she only learned that defendant
was acting pursuant to a policy during the deposition of
defendant's 30(b)(6) representative, Jeffrey Dalton, who
testified that defendant has different accommodation policies
based on whether the accommodation was needed because of an
on-the-job injury. Id. at 2-3.
15(a) provides that “leave [to amend] shall be freely
given when justice so requires.” Minter v. Prime
Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006);
Bradley v. Val-Mejias, 379 F.3d 892, 900 (10th Cir.
2004). “In the absence of any apparent or declared
reason-such as 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 . . . the leave sought
should, as the rules require, be ‘freely
given'” Foman v. Davis, 371 U.S. 178, 182
(1962). When considering delay as the basis to deny a motion
to amend, a court must consider the length of the delay and
the reason for the delay to determine if the moving
party's actions constitute “undue” delay.
Smith v. Aztec Well Servicing Co., 462 F.3d 1274,
1285 (10th Cir. 2006). A court may deny leave to amend
“when the party filing the motion has no adequate
explanation for the delay.” Minter, 451 F.3d
at 1206 (quoting Frank v. U.S. West, 3 F.3d 1357,
1365-66 (10th Cir. 1993)). “Untimeliness in itself can
be a sufficient reason to deny leave to amend, particularly
when the movant provides no adequate explanation for the
delay.” Panis v. Mission Hills Bank, N.A., 60
F.3d 1486, 1495 (10th Cir. 1995) (citing Pallottino v.
City of Rio Rancho, 31 F.3d 1023, 1027 (10th Cir.
now moves for leave to amend her complaint to add an
allegation that defendant's alleged discrimination was
pursuant to a policy of discrimination against pregnant
employees. Dkt. # 40. Defendant argues that the time for
amendment is long passed, that defendant would be prejudiced
by amendment, and that plaintiff has failed to provide a
proper reason for her delay. Dkt.# 42.
motion is nine months out of time and discovery is now well
underway and almost complete. The Court will not allow
amendment in these circumstances unless plaintiff provides an
adequate explanation for her delay. Plaintiff argues that she
could not have known that defendant had multiple
accommodation policies at the time her complaint was filed.
It is not entirely clear what plaintiff is attempting to
allege regarding defendant's accommodation policies
because she has failed to provide the Court with either a
transcript of Dalton's deposition testimony or a proposed
order specifically setting forth the allegations plaintiff
seeks to add,  but plaintiff appears to be
“shocked” that defendant has multiple
accommodation policies and that pregnant women are subject to
the “off-the-job injury, light duty policy.”
See Dkt. # 40, at 2-3. However, that defendant made
a distinction between on-the-job and off-the-job injuries and
considered plaintiff's pregnancy not to be an on-the-job
injury was, at a minimum, strongly implied by the facts
alleged in the original complaint. Plaintiff asserted that,
after she provided management with her doctor's note, she
was told that defendant did not have to accommodate her
situation “because it's not an on-the-job
injury.” Dkt. # 1, at 9.
asserts that she and her counsel assumed that defendant's
failure to accommodate plaintiff “was the result of
specific and individualized retaliation and spite against
[plaintiff], ” and that they believed defendant
“would chalk the adverse employment actions up to an
administrative error, and a one-off that occurred by accident
and that was an isolated incident.” Dkt. # 40, at 2.
Plaintiff provides no basis for these assumptions, but even
if plaintiff and her counsel had no idea that defendant had
multiple accommodation policies until Dalton's
deposition,  it would not constitute an adequate
explanation for delay because plaintiff should have known
that defendant had a different policy for on-the-job injuries
considering that she was told that her accommodation had been
denied because her limitations were not caused by an
on-the-job injury. Therefore, plaintiff's motion for
leave to amend her complaint should be denied because it is
nine months late and plaintiff has failed to provide an
adequate explanation for the delay.
THEREFORE ORDERED that plaintiff's Motion to Amend ...