Jurriaans v. Alabama Cooperative Extension System et al (MAG2)
Filing
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MEMORANDUM OPINION AND ORDER denying 73 MOTION to Allow Final Amended and Corrected Complaint. Signed by Chief Judge William Keith Watkins on 10/11/2018. (wcl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
WANDA JURRIAANS,
Plaintiff,
v.
ALABAMA COOPERATIVE
EXTENSION SYSTEM;
AUBURN UNIVERSITY; GARY
LEMME, in his official capacity;
STANLEY WINDHAM, in his
official capacity; CHRIS
McCLENDON, in his official
capacity; KYLE KOSTELECKY,
in his official capacity; and PAUL
BROWN, in his official capacity,
Defendants.
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CASE NO. 3:17-CV-124-WKW
[WO]
MEMORANDUM OPINION AND ORDER
“The parties will not amend the complaint.” That is what the parties told the
court in August 2018. (Doc. # 68, at 2.) But then Plaintiff moved for leave to file
a third amended complaint based on information her attorney apparently had since
April 2018. (Doc. # 73.) The motion for leave to amend is due to be denied.
I. BACKGROUND
In 2016, Plaintiff Wanda Jurriaans filed two charges of discrimination with
the Equal Employment Opportunity Commission (EEOC). The first alleged that
Defendants discriminated against her based on her age and gender. (Doc. # 75, at
10–13.) Her second charge alleged that Defendants fired her in retaliation for her
first charge. (Doc. # 75, at 15–17.) The EEOC investigated the charges, found no
discrimination, and sent Plaintiff right-to-sue letters. (Doc. # 75, at 37–45.)
Plaintiff then filed this action in March 2017. (Doc. # 1.) Plaintiff amended
her complaint in May 2017 (Doc. # 14) and again in September 2017 (Doc. # 36).
In essence, she claims Defendants violated Title VII of the Civil Rights Act, 42
U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act, 29 U.S.C.
§ 621 et seq. The Magistrate Judge filed a Recommendation on Defendants’
motion to dismiss in December 2017. (Doc. # 55.) In July 2017, the court adopted
the Recommendation in part and rejected it in part. (Doc. # 60.)
In August 2018, the parties filed a joint report under Federal Rule of Civil
Procedure 26(f). (Doc. # 28.) In that report, the parties represented that they had
completed discovery and would not amend the complaint. (Doc. # 68, at 2.) The
resulting Uniform Scheduling Order set an October 1, 2018, discovery deadline
and a November 14, 2018, deadline for amending the pleadings. (Doc. # 71, at 2.)
On September 5, Plaintiff deposed Defendant Kyle Kostelecky. (Doc. # 73,
at 2.)
Before defense counsel interrupted, Plaintiff’s attorney tried to ask
Defendant Kostelecky about discrimination against four other women — Margaret
Odom, Sallie Hooker, Melanie Allen, and Wanda Carpenter — who had worked
for Defendants. Those women had filed charges of age and gender discrimination
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with the EEOC in March and April 2018. (Doc. # 75, at 47–50.) Plaintiff’s
attorney represents those women (Doc. # 75, at 52), and it appears his law firm
helped them prepare their EEOC charges. Plaintiff’s attorney brought Odom’s
draft lawsuit and the other women’s EEOC charges with him to Defendant
Kostelecky’s deposition. (Doc. # 73, at 2.)
Two weeks after the deposition, on September 18, Plaintiff moved to amend
her complaint to allege that Defendants “engaged in a pattern and practice of age
discrimination against four other older female employees.” (Doc. # 73-1, at 8.)
Defendants oppose the motion to amend. (Doc. # 75.)
II. DISCUSSION
In general, a district court “should freely give leave [to amend] when justice
so requires.” Fed. R. Civ. P. 15(a)(2). But leave to amend may be denied “where
there has been undue delay” or “where amendment would be futile.” In re Engle
Cases, 767 F.3d 1082, 1108–09 (11th Cir. 2014) (citation omitted). Plaintiff bears
the burden of showing that she is entitled to amend her complaint. Id. at 1119
n.37. She has not met her burden.
A.
The motion for leave to amend is unduly delayed.
Plaintiff’s proposed amendment is delayed. The amendment is based on
alleged discrimination against Margaret Odom, Sallie Hooker, Melanie Allen, and
Wanda Carpenter. Odom and Hooker filed their charges of discrimination with the
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EEOC in March 2018; Allen and Carpenter filed their charges in April 2018.
(Doc. # 75, at 47–50.) Plaintiff’s attorney represents all four women (Doc. # 75, at
52), and his firm apparently helped the four women prepare their EEOC charges.
So it appears Plaintiff’s attorney could have amended Plaintiff’s complaint well
before September 18, 2018.
Though mere delay is usually an insufficient reason to deny leave to amend,
undue delay is sufficient. Whether delay is undue depends on “the reasons for the
delay” and “prejudice to the nonmoving party.” Engle, 767 F.3d at 1118–19.
1.
Plaintiff has not offered an adequate reason for the delay.
Plaintiff does not adequately explain why she waited to amend her
complaint. She says that that information about the other four women “did not
become available . . . until after the original filing of [her] complaint.” (Doc. # 73,
at 2.) But that means only that Plaintiff learned the information after March 2017.
It does not explain what happened between April 2018 and September 2018.
Plaintiff points out the court did not rule on Defendants’ motion to dismiss
until July 2018. (Doc. # 59.) But if Plaintiff had been waiting on the court’s
decision before amending her complaint, she would not have told the court in
August 2018 that she would not amend her complaint. (Doc. # 68, at 2.)
Plaintiff mentions her attorney’s failed attempt to ask Defendant Kostelecky
questions about Odom, Hooker, Allen, and Carpenter. (Doc. # 73, at 2.) But
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Plaintiff freely admits she knew about the four women’s allegations before that
deposition. She learned nothing new at the deposition.
Finally, Plaintiff says that her complaint “has always inferred a pattern and
practice of discrimination by the Defendants as circumstantial evidence.” (Doc.
# 73, at 2.) Not so. Nothing in Plaintiff’s initial or amended complaints suggest
that Defendants discriminated against other women.
2.
Plaintiff’s delay prejudices Defendants.
If Plaintiff is allowed to amend her complaint, discovery will have to be
reopened, and it will require the parties to perform additional discovery about
whether Defendants had a “pattern or practice” of discrimination.
prejudice Defendants and unduly delay proceedings.
That will
See Carruthers v. BSA
Advert., Inc., 357 F.3d 1213, 1218 (11th Cir. 2004).
Alleging that Defendants had a “pattern or practice” of discrimination is
different from alleging that Defendants discriminated against Plaintiff alone. A
“pattern or practice” of discrimination means that “discrimination was the . . .
standard operating procedure — the regular practice rather than the unusual
practice.” Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1227 (11th Cir.
2001) (citation omitted). To prevail on a pattern or practice claim, Plaintiff would
need to “prove more than the mere occurrence of isolated or accidental or sporadic
discriminatory acts.” Id. at 1227–28 (citation omitted). “Plaintiffs proceeding
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under a pattern and practice theory often introduce statistics to bolster their claims
of discrimination.” Id. at 1228; see EEOC v. Joe’s Stone Crab, Inc., 220 F.3d
1263, 1287 (11th Cir. 2000). Likewise, defendants may use statistics to rebut a
claim of discrimination.
Plaintiff argues that additional discovery is not an issue here because each
woman is alleging discrimination by the same Defendants. (Doc. # 73, at 2–3.)
But according to Defendants, there has been no discovery about a pattern or
practice of discrimination. (Doc. # 75, at 6.) Defendants also state that if the
pattern or practice claim proceeds, they will want to present a statistics expert to
show there is no pattern or practice of discrimination. (Doc. # 75, at 7.) This need
to reopen discovery will prejudice Defendants and create undue delay.
Because Plaintiff has not adequately explained her tardiness, and because
amendment would prejudice Defendants, the motion for leave to amend is due to
be denied based on undue delay. See Carruthers, 357 F.3d at 1218.
B.
The proposed amended complaint is futile.
There is a second reason the motion to amend is due to be denied: The
proposed amended complaint is futile.
Plaintiff’s complaint “is limited by the scope of the EEOC investigation
which can reasonably be expected to grow out of the charge of discrimination.”
Gregory v. Ga. Dep’t of Human Res., 355 F.3d 1277, 1280 (11th Cir. 2004)
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(citation omitted). Judicial claims “are allowed if they amplify, clarify, or more
clearly focus the allegations in the EEOC complaint.” Id. at 1279 (citation and
internal quotation marks omitted). But “allegations of new acts of discrimination
are inappropriate.” Id. at 1279–80.
Plaintiff’s “pattern or practice” allegations could not reasonably be expected
to arise out of the allegations in her EEOC charges. Lett v. Reliable Ruskin, No.
1:05-CV-479-WHA, 2005 WL 2128041, at *3 (M.D. Ala. Aug. 29, 2005). Neither
charge alleged that Defendants discriminated against other employees. (See Doc.
# 75, at 10–17.)
The EEOC’s investigation report likewise did not mention
discrimination against any other employees. (See Doc. # 75, at 36–45.) Instead,
Plaintiff is now alleging new acts of discrimination. See Edwards v. Ambient
Healthcare of Ga., Inc., 674 F. App’x 926, 931 (11th Cir. 2017) (per curiam)
(“Edwards’s allegations that [a] driver was harassing and ‘stalking’ her personally
appear nowhere in her EEOC charge, which was limited to allegations pertaining
to patients and caregivers. Thus, Edwards has not administratively exhausted this
‘new’ claim of discrimination, and the district court could not review it.”). That
means Plaintiff’s proposed amendment is futile. See id.
III. CONCLUSION
It is ORDERED that Plaintiff’s Motion to Allow Final Amended and
Corrected Complaint (Doc. # 73) is DENIED.
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DONE this 11th day of October, 2018.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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