Opinion
8:20-cv-01586-TMC-JDA
02-14-2022
Thomas B Summerell, Plaintiff, v. Clemson University, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Jacquelyn D. Austin United States Magistrate Judge
This matter is before the Court on Plaintiff's motion for leave to amend his Amended Complaint and to extend the Court's Scheduling Order. [Doc. 43.] Plaintiff alleges claims for discrimination and retaliation under the Americans with Disabilities Act (“ADA”). [Doc. 1-1 at 11-13.] Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and Local Civil Rule 73.02(B)(2)(g), D.S.C., all pretrial matters in employment discrimination cases are referred to a United States Magistrate Judge for consideration.
Plaintiff commenced this action on December 12, 2019, in the Pickens County Court of Common Pleas. [Id. at 1-8.] Plaintiff filed an Amended Complaint in the state court on March 9, 2020. [Id. at 9-14.] Defendant removed the action on April 23, 2020. [Doc. 1.] On December 21, 2021, Plaintiff filed the instant motion for leave to amend his Amended Complaint and to extend the Scheduling Order. [Doc. 43.] Defendant filed a response opposing the motion on January 4, 2022, and Plaintiff filed a reply on January 10, 2022. [Docs. 44; 46.]
BACKGROUND
Plaintiff's Amended Complaint alleges as follows:
Plaintiff was hired by Defendant in 2016 as a maintenance employee and his primary job duties related to landscape maintenance. [Doc. 1-1 at 10 ¶¶ 7-8.] Prior to his employment, Plaintiff suffered severe facial trauma and other permanent injuries and was diagnosed with chronic severe pain, depression, and anxiety, along with other chronic medical conditions. [Id. ¶ 7.] Plaintiff notified Defendant of these conditions early during his time working for Defendant. [Id.] He was prescribed pain medication prior to his employment with Defendant and during his time working for Defendant. [Id.]
In approximately January 2019, Plaintiff's supervisor took Plaintiff to Defendant's office of human resources, alleging that Plaintiff “had been acting: not alert, inattentive, had slurred speech and cracked lips.” [Id. ¶ 10.] During that meeting, it was apparent that Plaintiff's supervisor assumed that Plaintiff had been taking illicit drugs. [Id.] Defendant suspended Plaintiff without pay, prepared a fitness-for-duty form, and instructed Plaintiff that he should have his most recent physician review and sign the form. [Id. ¶ 11.] Plaintiff's most recent physician, who was an orthopaedist stated that Plaintiff was physically able to perform his work but stated that he could not respond to the psychological assertions because that exceeded his area of expertise. [Id. ¶ 12.] Plaintiff sought to have others complete the form, including Defendant's in-house nurse practitioner, but none were willing and able to do it. [Id.] In approximately July 2019, with Plaintiff still not having found a medical professional who was willing and able to complete the form, Defendant terminated Plaintiff's employment. [Id. ¶ 15.]
On June 20, 2019, Plaintiff filed a Charge of Discrimination with the Equal Opportunity Employment Commission (“EEOC”) alleging disability discrimination based on his being required to have the fitness-for-duty form completed by a physician and his being placed on administrative leave in January 2019, and he subsequently received a notice of right to sue from the EEOC. [Id. at 9 ¶ 5; 32-7 at 41.] Following his termination, on November 15, 2019, Plaintiff filed another EEOC charge alleging that his termination was retaliatory, in violation of his rights under the ADA. [Doc. 32-7 at 44.]
Plaintiff subsequently filed this action. Plaintiff alleges that Defendant violated his rights under the ADA by requiring him to have a physician fill out a fitness-for-duty form, having him obtain a new pain management physician, suspending him, terminating him. [Doc. 1-1 at 11-13 ¶¶ 21-31.] Regarding the termination, Plaintiff alleges that it violated the ADA both because it was “due to use or prior use of prescribed medication required for Plaintiff's disability” and because it was in retaliation for filing a discrimination charge with the EEOC. [Id. at 12 ¶ 23; see also Id. at 13 ¶ 30.] Plaintiff also alleges that the continuation of his suspension was in retaliation for his filing the charge. [Id. ¶ 30.] As relief, Plaintiff seeks backpay, reinstatement, compensatory and punitive damages, other injunctive relief, and court costs. [Id. at 13.]
Plaintiff's Amended Complaint also alleged a state law breach of contract claim. [Doc. 1-1 at 13-14 ¶¶ 32-36.] However, the parties subsequently stipulated to the dismissal with prejudice of that claim. [Doc. 14.]
On April 30, 2021, Defendant filed a motion for summary judgment, arguing that Plaintiff's case should be dismissed because his Title I ADA claim was barred by Eleventh Amendment immunity, he had not exhausted his administrative remedies with regard to his discrimination claim, and he had failed to forecast sufficient evidence to establish a prima facie case of disability discrimination or retaliation. [Doc. 32-1 at 9-21.] In his memorandum opposing summary judgment, Plaintiff argued, as is relevant here, that Eleventh Amendment immunity would not bar a claim brought under Section 504 of the Rehabilitation Act, that the facts alleged in the Amended Complaint “would include the Rehabilitation Act as well as the ADA as a cause/claim, ” and that “the Court, if determining the Complaint would need to be amended to expressly assert [a Rehabilitation Act claim], could grant such an amendment in its discretion.” [Doc. 33 at 11-12.] He also contended that “the Eleventh Amendment does not apply to suits for injunctive relief and such other equitable causes or remedies under the ADA or other statutes.” [Id. at 12.]
On June 11, 2021, the undersigned issued a Report and Recommendation recommending that Defendant's summary judgment motion be granted. [Doc. 37.] As is relevant here, the Court reasoned:
“[A]n unconsenting State is immune from suits brought in federal courts by her own citizens.” Edelman v. Jordan, 415 U.S. 651, 663 (1974). This immunity applies as well to state agencies. Regents of Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997). “Therefore, absent abrogation of sovereign immunity or consent from [South Carolina, Plaintiff] cannot seek injunctive or monetary relief from” South Carolina. McCray v. Md. Dep't of Transp., 741 F.3d 480, 483 (4th Cir. 2014). Defendant is an arm of the State of South Carolina for Eleventh Amendment purposes. Martin v. Clemson Univ., 654 F.Supp.2d 410, 424 (D.S.C. 2009).
A claim asserted against a state agency “may survive the Eleventh Amendment bar in one of three recognized ways”: (1) “Congress may abrogate state Eleventh Amendment immunity”; (2) “a state may waive its immunity”; or (3) “a plaintiff may seek prospective relief against state officials acting in violation of federal law under the principles set forth in Ex Parte Young, ” 209 U.S. 123 (1908). Pickering v. State
Police, 59 F.Supp.3d 742, 747 (E.D. Va. 2014). None of these circumstances applies here. First, “[s]overeign immunity has not been abrogated for . . . ADA Title I claims.” McCray, 741 F.3d at 483. Second, “South Carolina has not waived its Eleventh Amendment immunity for lawsuits in federal court.” Doe v. Coastal Carolina Univ., No. 4:18-cv-00268-RBH, 2019 WL 142299, at *7 (D.S.C. Jan. 9, 2019). And third, Plaintiff has not sought relief against any state official, but rather has named Defendant as the lone Defendant. See Pickering, 59 F.Supp.3d at 747.[Doc. 37 at 6-7 (footnotes omitted).] The undersigned also added:
Plaintiff argues that pursuant to Ex Parte Young, 209 U.S. 123 (1908), sovereign immunity would not bar his recovery for injunctive relief or equitable remedies. [Doc. 33 at 12.] That is incorrect. Ex Parte Young permits injunctive relief from individual defendants who are state officials sued in their individual capacities. Ex Parte Young, 209 U.S. at 160. Plaintiff did not sue any individual state officials here.
Plaintiff further argues that Defendant is not entitled to sovereign immunity with regard to a claim under section 504 of the Rehabilitation Act of 1973 (“the Rehabilitation Act”). [Doc. 33 at 10-12.] Plaintiff's Amended Complaint does not allege a violation of the Rehabilitation Act, however. Plaintiff requests, to the extent he is required to expressly allege a violation of the Rehabilitation Act in order to plead a Rehabilitation claim, that he be granted leave to amend his Amended Complaint. [Id. at 12.] However, this is not a proper motion, and no proposed amendment has been filed. Additionally, a proposed amendment would be untimely filed under the Court's Scheduling Order [Doc. 9 (providing a deadline of June 23, 2020, for motions to amend pleadings)] and Plaintiff has offered no cause to extend the applicable deadlines. See Nourison Rug Corp. v. Parvizian, 535 F.3d 295, 298 (4th Cir. 2008) (“[A]fter the deadlines provided by a scheduling order have passed, the good cause standard must be satisfied to justify leave to amend the pleadings.”) Accordingly, to the extent that the Court construes this request as a motion to amend the Amended Complaint, the undersigned recommends that the motion be denied without prejudice.[Id. at 7 n.4.]
On June 15, 2021, Plaintiff filed objections regarding the undersigned's Report and Recommendation. [Doc. 38.] In those objections, Plaintiff argued that the undersigned did not consider that the facts alleged would support a Rehabilitation Act claim regardless of whether Plaintiff mentioned the Rehabilitation Act, and Plaintiff contended that if specifically mentioning the Rehabilitation Act was necessary to assert a Rehabilitation Act claim, “the Court should grant leave to Plaintiff, allowing amendment of his pleadings, to specifically list such Statute.” [Id. at 1-2.]
On December 14, 2021, the Honorable Timothy M. Cain adopted the undersigned's Report and Recommendation as to Plaintiff's ADA claims and declined to find that Plaintiff's Amended Complaint asserted a claim under the Rehabilitation Act, noting that Plaintiff was “represented by legal counsel and [thus] the rule requiring lenient construction of pro se pleadings does not apply here.” [Doc. 41 at 8-9.] Regarding Plaintiff's suggestion that the Court should grant him leave to amend his Amended Complaint after the deadline in the Scheduling Order for doing so, the Court “note[d], as did the magistrate judge, that [Plaintiff] ha[d] not bothered to file a formal motion or even articulate a basis upon which the court c[ould] find good cause to grant relief under Rule 16(b)” of the Federal Rules of Civil Procedure. [Id. at 9.] However the Court added that it was “loath to penalize [Plaintiff] for th[o]se failures, which [we]re not his own.” [Id.] Accordingly, although the Court granted Defendant's summary judgment motion and dismissed Plaintiff's ADA claims, the Court “grant[ed] [Plaintiff] 15 days from the date of th[e] Order to file a motion to amend the complaint to include a claim under the Rehabilitation Act, showing good cause under the applicable standards why he should be permitted to do so out of time and attaching the proposed amended pleading.” [Id.]
APPLICABLE LAW
A party may amend its pleading once before trial as a matter of course, under certain circumstances, Fed.R.Civ.P. 15(a)(1), and “[i]n all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave, ” Fed.R.Civ.P. 15(a)(2). “The court should freely give leave when justice so requires.” Id. “A district court may deny a motion to amend when the amendment would be prejudicial to the opposing party, the moving party has acted in bad faith, or the amendment would be futile.” Equal Rights Ctr. v. Niles Bolton Assocs., 602 F.3d 597, 603 (4th Cir. 2010); see Foman v. Davis, 371 U.S. 178, 182 (1962) (noting that leave to amend may be denied for “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 of the amendment, futility of amendment, etc.”).
Although Rule 15(a) provides that ''[t]he court should freely give leave when justice so requires, ” Rule 16(b) provides that a court's scheduling order “may be modified only for good cause and with the judge's consent.” Thus, ?when the deadline for amendment has passed, the moving party must first demonstrate good cause under Rule 16(b) before the court will consider whether an amendment is proper under Rule 15(a).” Pure Fishing, Inc. v. Normark Corp., No. 3:10-2140-CMC, 2012 WL 3062683, at *1 (D.S.C. July 26, 2012), aff'd, 564 Fed.Appx. 601 (Fed. Cir. 2014). “'[G]ood cause' means that scheduling deadlines cannot be met despite a party's diligent efforts.” Dilmar Oil Co. v. Federated Mut. Ins. Co., 986 F.Supp. 959, 980 (D.S.C. 1997). Rule 16(b) ''focuses on the diligence of the party seeking leave to modify the scheduling order to permit the proposed amendment” rather than ?on the bad faith of the movant, or the prejudice to the opposing party.” Id. In this regard, “[c]arelessness is not compatible with a finding of diligence and offers no reason for a grant of relief.” Id. Rather, “[u]nder Rule 16(b), the ‘good cause' inquiry focuses on whether evidence supporting the moving party's proposed amendment could not have been discovered in the exercise of reasonable diligence until after the amendment deadline had passed.” Rouse v. Byars, No. 4:13-cv-2742-BHH-TER, 2016 WL 2939609, at *3 (D.S.C. May 20, 2016).
DISCUSSION
Defendant argues that Plaintiff's motion should be denied because Plaintiff has not established good cause to extend the Scheduling Order to allow leave for the proposed Second Amended Complaint. [Doc. 44 at 4-5.] The Court agrees.
Defendant alternatively argues that even if Plaintiff could satisfy Rule 16(b)'s good-cause standard, leave to amend should be denied under Rule 15 because amendment would be futile. [Doc. 44 at 5-6.] Because the Court concludes that Plaintiff cannot satisfy Rule 16(b)'s good-cause standard, the Court declines to address Defendant's alternative argument.
In support of his motion, Plaintiff notes that to add a claim under the Rehabilitation Act “would require no further discovery as the elements of the claim are identical to the elements of the ADA and its amendments.” [Doc. 43 at 3.] Attached to Plaintiff's motion is a proposed Second Amended Complaint as well as a declaration from Plaintiff's counsel. [Docs. 43-1; 43-2.] In the declaration, counsel represents that he has been licensed to practice in South Carolina for 31 years and about 20 percent of his practice involves employment issues although he has never brought a Rehabilitation Act claim; Plaintiff filed the initial Complaint pro se in state court; counsel filed an Amended Complaint in state court on Plaintiff's behalf; the parties conducted full discovery; counsel researched the sovereign immunity prior to filing the Amended Complaint and after Defendant moved for summary judgment; and counsel's “research regarding the ADA and sovereign immunity indicated the issue was less clear than [his] initial research [had] indicated and m[ight] not be favorable.” [Doc. 43-2.]
Here, Plaintiff offers no reason why counsel could not, with reasonable diligence, have discovered the legal defect regarding Plaintiff's ADA claim and the need to amend the pleadings to add a Rehabilitation Act claim prior to the Scheduling Order's amendment deadline. Plaintiff's excuse for not seeking leave to amend his pleadings simply amounts to counsel's failure to appreciate or understand that Defendant would have Eleventh Amendment immunity as to his ADA claim. However, “unfamiliarity with controlling law does not rise to the level of good cause” in this context. Halpern v. Wake Forest Univ. Health Scis., 268 F.R.D. 264, 272-73 (M.D. N.C. 2010) (holding no good cause to amend complaint outside of scheduling order deadline when the party proposed to change his ADA claim from Title II to Title III in light of the defendant's summary judgment argument because he realized “that an existing claim suffers from a legal defect”); see Nourison Rug Corp., 535 F.3d at 298 (holding that mere fact that the need to amend the pleadings to raise the defense of release had not occurred to counsel prior to the amendment deadline was “far short of what is required to satisfy the good cause standard”).
As noted, in his declaration, counsel admits that although Plaintiff filed his Complaint in state court pro se, it was counsel who filed the Amended Complaint on his client's behalf. [Doc. 43-2 at ¶¶ 3-4.] The Amended Complaint was filed March 9, 2020 [Doc. 1-1 at 9-14], and the deadline in the Scheduling Order for amendments to pleadings was June 23, 2020 [Doc. 9 at 1]. Accordingly, this certainly was not a case where counsel did not have adequate time to research the applicable legal issues. Additionally, the Court notes that Plaintiff did not move to amend his pleadings even after Defendant plainly laid out the applicable legal principles and precedents in its memorandum in support of its summary judgment motion, nor did Plaintiff move to amend his pleadings in conjunction with his objections to the undersigned's Report and Recommendation.
Accordingly, the Court recommends that Plaintiff's motion for leave to amend his Amended Complaint and to extend the Scheduling Order be denied.
RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that Plaintiff's motion for leave to amend his Amended Complaint and to extend the Scheduling Order [Doc. 43] be DENIED.
IT IS SO RECOMMENDED.