Opinion
Case No. 00-2146-CM, Case No. 01-2602-CM, Case No. 01-2603-CM
November 8, 2002
MEMORANDUM AND ORDER
Pending before the Court is the Motion for Leave to File First Amended Complaint filed by Plaintiff Al E. Hope, Sr. (doc. 97). As discussed in detail below, the Court will deny the motion.
I. Nature of the Matter Before the Court
Plaintiff Al E. Hope, Sr. ("Hope") has sued the City of Junction City, Kansas (the "City") for race discrimination under Title VII of the Civil Rights Act of 1964. He seeks leave to amend his Complaint to add claims for retaliation under Title VII and 42 U.S.C. § 1981. The City opposes the motion on grounds that Hope has failed to submit a proposed amended complaint with his motion and because has failed to exhaust his administrative remedies with respect to his proposed Title VII retaliation claims.
Hope has filed both an individual action (Case No. 01-2602-CM) and a putative class action (Case No. 01-2603-CM). Hope does not specifically state which complaint he wishes to amend. He also fails to attach a copy of the proposed amended complaint. It is therefore difficult for the Court to determine which complaint he seeks to amend. Because, however, he seeks leave to add new claims relating only to himself and because he refers to amending only one complaint, the Court will presume he seeks only to amend the complaint filed in his individual action (Case No. 01-2602-CM).
II. Standard for Ruling on a Motion to Amend
Rule 15 of the Federal Rules of Civil Procedure allows one amendment of the complaint before a responsive pleading is served or within twenty days after service of the complaint. Subsequent amendments are allowed only by leave of court or by written consent of the adverse party. Leave to amend, however, is to be "freely given when justice so requires," and the Supreme Court has emphasized that "this mandate is to be heeded." The decision to grant leave to amend a complaint, after the permissive period, is within the trial court's discretion and will not be disturbed absent an abuse of that discretion.
Id.
Id.
Foman v. Davis, 371 U.S. 178, 182 (1962).
Woolsey v. Marion Labs., Inc., 934 F.2d 1452, 1462 (10th Cir. 1991).
Leave to amend should be denied when the court finds "undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of amendment." Leave to amend may also be denied when the movant fails to comply with this Court's procedural requirements for motions to amend.
Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993).
See, e.g., Dahl v. City of Overland Park, No. 02-2036-JAR, 2002 WL 1634805, at *1 (D. Kan. July 8, 2002); Claymore v. Kan. Court of Appeals, No. 98-2059-JWL, 1999 WL 386946, at *1 (D. Kan. June 8, 1999); Gorsline v. State of Kan., No. 95-4085-SAC, 1995 WL 783217, at *1 (D. Kan. Nov. 21, 1995).
III. Analysis
A. Procedural Requirements
The City asks the Court to deny Hope's motion on the basis that he has failed to comply with D. Kan. Rule 15.1, which sets forth various procedural requirements for motions to amend. Among other things, Rule 15.1 requires the moving party to attach to the motion a signed original and copy of the proposed amended pleading. This is more than a mere technical requirement. The movant's compliance with this requirement "is critical for the court to assess the different factors relevant in deciding a motion to amend." It is also important that the movant comply with this requirement so that the opposing party may fully review and evaluate the proposed amendments and, where appropriate, oppose them.
Gorsline, 1995 WL 783217, at *1.
Hope has not complied with this requirement. Both the Court and the City are left to speculate about the contents of the proposed amended complaint. The City is unable to determine all grounds that it may have to oppose the amendments. In addition, the Court is unable to adequately assess whether leave to amend should be granted. For these reasons, the Court will deny Hope's motion for leave to amend.
B. Futility
The City asserts an alternative basis for denying Hope leave to amend to add his new Title VII retaliation claims. The City argues that Hope has failed to exhaust his administrative remedies with respect to these new retaliation claims and that granting Hope leave to amend to plead these claims would be futile as they are subject to dismissal for failure to exhaust.
It is well settled that a court may deny a motion to amend as futile if the proposed amendment would not withstand a motion to dismiss or if it fails to state a claim. The Court will therefore proceed to determine-based on what little information Hope has provided-whether his new Title VII retaliation claims would be subject to dismissal based on failure to exhaust.
LyIe v. Commodity Credit Corp., 898 F. Supp. 808, 810 (D. Kan. 1995) (citing Ketchum v. Cruz, 961 F.2d 916, 920 (10th Cir. 1992)).
Before addressing the parties' arguments, the Court will first set forth the factual background of Hope's lawsuit and charges. Hope filed his individual action on December 19, 2001. His initial Complaint contains one count-for race discrimination in violation of Title VII. Before filing his lawsuit, Hope filed a charge with the Equal Employment Opportunity Commission ("EEOC") and received a right-to-sue notice.
Complaint (doc. 1), ¶¶ 22-24.
Id., ¶¶ 6-8.
On September 23, 2002, Hope filed a new EEOC charge asserting retaliation occurring after he filed the instant lawsuit ("the new charge"). The new charge alleges that after he filed the instant lawsuit and served a summons on the City, the City placed him on administrative leave and then discharged him. The new charge claims that these actions were taken in retaliation for Hope exercising his rights under Title VII. Hope now seeks leave to amend his complaint in the instant lawsuit to plead these new Title VII retaliation claims.
Hope concedes that he has yet to receive a right-to-sue notice from the EEOC on his new retaliation claims. The City argues that Hope has therefore failed to exhaust his administrative remedies with respect to these claims. The City contends that the new retaliation claims would be subject to dismissal for failure to exhaust and that it would therefore be futile to allow Hope leave to amend to plead them.
The Tenth Circuit has held that "the exhaustion of administrative remedies is a jurisdictional prerequisite to suit under Title VII." Thus, "a plaintiff normally may not bring a Title VII action based upon claims that were not part of a timely-filed EEOC charge for which the plaintiff has received a right-to-sue letter." When the plaintiff fails to exhaust his remedies, the Title VII claims are subject to dismissal.
Sizova v. Nat'l Inst. of Standards Tech., 282 F.3d 1320, 1325 (10th Cir. 2002) (citations omitted).
Simms v. Okla. ex rel. Dep't of Mental Health Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999) (citations omitted).
See Jones v. Runyon, 91 F.3d 1398, 1399 (10th Cir. 1996) (upholding district court's dismissal of Title VII retaliation claims for lack of subject matter jurisdiction where plaintiff failed to exhaust her remedies with the EEOC).
Hope argues that he is not required to exhaust his remedies with respect to his new Title VU retaliation claims, relying on National Railroad Passenger Corporation, v. Morgan. The Court finds that case inapplicable here, as it addresses the time limitations for filing charges involving hostile environment claims and not the exhaustion requirements for charges alleging retaliation. Hope also relies on Morales v. Runyon. In that case, Judge Vratil held that a plaintiff may seek relief for discriminatory acts not listed in the original EEOC charge if such acts are reasonably related to, or grow out of, the allegations contained in the original, exhausted EEOC charge, including new acts that occurred during the pendency of the charge before the EEOC.
122 S.Ct. 2061 (2002).
844 F. Supp. 1435 (D. Kan. 1994)
Id. at 1437.
The Tenth Circuit expanded this rule in Ingels v. Thiokol Corporation, and held that a plaintiff is not required to exhaust his remedies as to new retaliatory acts that occurred during the pendency of the judicial proceeding. In Ingels, the plaintiff was discharged n a reduction-in-force and he filed a discrimination charge with the EEOC. After exhausting his remedies with respect to that charge, Ingels filed a lawsuit. While the lawsuit was pending, Ingels learned that his employer had hired new employees after the reduction-in-force, and so he amended his complaint to allege a retaliatory non-hire claim. Ingels asserted he was not required to file a separate EEOC charge for his retaliation claim because that claim was related to his underlying claim of discrimination.
42 F.3d 616 (10th Cir. 1994).
Id. at 625.
Id. at 619-20.
Id. at 624-25.
The Tenth Circuit agreed and held that plaintiffs should not be put to the additional burden of exhausting their administrative remedies on retaliation claims as well as on the underlying claim. The Ingels court stated: "[R]equiring a plaintiff to file a second EEOC charge under these circumstances could have the perverse result of promoting employer retaliation in order to impose further costs on plaintiffs and delay the filing of civil actions relating to the underlying acts of discrimination."
Id. at 625.
Id. at 625 (internal quotations and citations omitted).
Hope could argue that under Ingels, he is not required to exhaust his retaliation claims because the alleged retaliatory acts occurred during the pendency of this lawsuit and because they reasonably relate to, and grow out of, his discrimination claims. The Tenth Circuit, however, has refused to apply the Ingels rule to cases like the instant one, where the plaintiff has chosen to file a new charge alleging retaliation. In Mosley v. Pena, the Tenth Circuit held that a plaintiff who chooses to file a new charge based on acts occurring during the pendency of the lawsuit may not take advantage of the Ingels rule. The Mosley court stated:
[T]he Ingels rationale does not apply when, as here, the plaintiff has chosen to undertake the burden of filing separate claims with the EEOC. In Ingels, the plaintiff treated his retaliation claim as ancillary; in this case, Mosley treated her retaliation claim as separate. Although Mosley could have chosen to treat that claim as ancillary to the underlying discrimination claim . . ., she instead filed a separate formal complaint with the EEOC alleging retaliation.
As a consequence, Mosley treated her retaliation claim as distinct from the underlying claim. This court feels obliged to do the same. Under the circumstances, we find Mosley was required to exhaust her administrative remedies. Accordingly, the district court did not err when it granted defendant's motion for summary judgment [on the retaliation claim] on the ground that Mosley had failed to exhaust her administrative remedies.
100 F.3d 1515 (10th Cir. 1996)
Id. at 1518-19.
The court noted that Mosley had failed to exhaust her administrative remedies as to the retaliation claim because she had yet to receive a right-to-sue letter from the EEOC on that claim. Id. at 1519 n. 1.
Id. at 1519.
The Court finds Mosley applicable here. Like Mosley, Hope chose to treat his Title VII retaliation claims as distinct and separate from the claims pled in his initial complaint when he elected to file a new EEOC charge. Like Mosley, Hope has yet to receive his right-to-sue notice on the new retaliation charge and has therefore failed to exhaust his administrative remedies. Under Mosley, exhaustion is required. Because Hope has failed to exhaust his administrative remedies, granting him leave to amend to plead his new Title VII retaliation allegations would be futile. Accordingly, leave to amend should be denied as to Hope's Title VII retaliation claims.
Judge Vratil applied Mosley in denying a motion for leave to amend to add a retaliation claim in Smith v. Bd. of County Comm'rs of Johnson County, Kan., 96 F. Supp.2d 1177 (D. Kan. 2000). During the pendency of her discrimination lawsuit, the plaintiff filed a new EEOC charge claiming that the defendant had retaliated against her for filing the first charge and for filing the lawsuit. She waited until she received her right-to-sue notice on the new retaliation charge before filing her motion to amend. Judge Vratil denied the motion to amend as untimely, holding that the plaintiff could have timely sought leave to assert her retaliation claim without filing any charge with the EEOC. Id. at 1193. Relying on Mosley, Judge Vratil held that because the plaintiff had elected to treat her retaliation claim as separate and distinct from her other claims and to lodge a new charge with the EEOC, the Court likewise would treat the retaliation claim as separate. Id. The Court further held that if plaintiff desired to file the proposed retaliation claim, she could file a separate lawsuit. Id.
IV. Conclusion
The Court will deny Hope leave to amend on the basis that Hope has failed to comply with D. Kan. Rule 15.1, which requires that he attach the proposed amended complaint to his motion. Without that proposed complaint the Court is unable to conduct the necessary analysis to determine whether the amendment should be allowed. The Court will also deny Hope leave to amend to the extent he seeks to add Title VII retaliation claims based on the City placing him on administrative leave and terminating his employment. Hope chose to treat those retaliations claims as separate and distinct from the other claims in his lawsuit when he elected to file a separate charge with the EEOC. He must exhaust his administrative remedies as to those new claims before he may amend his complaint to add them.
IT IS THEREFORE ORDERED that the Motion for Leave to File First Amended Complaint filed by Plaintiff Al E. Hope, Sr. (doc. 97) is denied.
IT IS SO ORDERED.