Hawkins v. Roman Chatholic Diocese of Birmingham et al

Filing 36

MEMORANDUM OPINION AND ORDER For the reasons explained above, the court GRANTS IN PART and DENIES IN PART Holy Familys motion to dismiss. (Doc. 26). The court DENIES Ms. Hawkinss motion for leave to amend. (Doc. 34). The court GRANTS Ms. Hawkinss motion for leave to file a sur-reply. (Doc. 35). The court DISMISSES WITH PREJUDICE Ms. Hawkinss Title VII retaliation, Title VI race discrimination, and sex discrimination claims. Ms. Hawkinss Title VII and § 1981 race discrimination claim will proceed.. Signed by Judge Annemarie Carney Axon on 12/4/2018. (TLM, )

FILED
2018 Dec-04 PM 02:31
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CORTNEY R. HAWKINS,
Plaintiff,
v.
HOLY FAMILY CRISTO REY
CATHOLIC HIGH SCHOOL,
Defendant.

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Case No.: 2:18-cv-00638-ACA

MEMORANDUM OPINION AND ORDER
In this employment discrimination case, Plaintiff Cortney R. Hawkins
alleges that Defendant Holy Family Cristo Rey Catholic High School (“Holy
Family”) discriminated against her because of her race and gender, and retaliated
against her for reporting student complaints to school administrators. Ms. Hawkins
asserts claims against Holy Family under Title VII and Title VI for retaliation, race
discrimination, and sex discrimination and § 1981 for race discrimination.
This case is before the court on Holy Family’s motion to dismiss Ms.
Hawkins’s second amended complaint (doc. 26), Ms. Hawkins’s motion for leave
to file a third amended complaint (doc. 34), and Ms. Hawkins’s motion for leave to
file a sur-reply (doc. 35). For the reasons explained below, and with the benefit of
oral argument, the court GRANTS IN PART and DENIES IN PART Holy

Family’s motion to dismiss, DENIES Ms. Hawkins’s motion for leave to amend,
and GRANTS Ms. Hawkins’s motion for leave to file a sur-reply.
I.

Motion to Dismiss
A.

Standard of Review

Pursuant to Rule 8(a)(2), a complaint must contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.
P. 8(a)(2). Rule 12(b)(6) enables a defendant to move to dismiss a complaint for
“failure to state a claim upon which relief can be granted.” Fed. R. Civ. P.
12(b)(6).
To survive a motion to dismiss, a complaint must “state a claim to relief that
is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A
claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A plausible
claim for relief requires “enough fact[s] to raise a reasonable expectation that
discovery will reveal evidence” to support the claim. Twombly, 550 U.S. at 556.
When resolving a motion to dismiss, the court must “accept[] the allegations
in the complaint as true and constru[e] them in the light most favorable to the
plaintiff.” Miljkovic v. Shafritz & Dinkin, P.A., 791 F.3d 1291, 1297 (11th Cir.
2015) (quoting Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003) (per curiam)).
2

B.

Factual Background and Procedural History

Construed in the light most favorable to Ms. Hawkins, the facts alleged in
the second amended complaint are as follows. Ms. Hawkins is a 28-year old
African-American female. (Doc. 23 at ¶ 7). From July 2016 until March 8, 2018,
Ms. Hawkins taught 9th and 10th grade English and 11th and 12th grade AfricanAmerican History at Holy Family. (Id. at ¶ 8). Holy Family Principal Cheryl
Kuyk 1 and Holy Family President Father Jon Chalmers supervised Ms. Hawkins
while she was employed by the school. (Id. at ¶ 9).
Ms. Hawkins reported student complaints regarding inappropriate comments
and disparate punishment of female students to her supervisors on three separate
occasions. (Id. at ¶¶ 10, 11, 13). In September 2017, an African-American female
student approached Ms. Hawkins about “inappropriate comments and disparate
treatment in disciplining female students versus male students.” (Doc. 23 at ¶ 10).
Ms. Hawkins reported to Father Chalmers and Ms. Kuyk the student’s concerns
about the “perception of discriminative treatment of female students.” (Id. at ¶ 10).
In November 2017, L.W., an African-American female student, and several
other female students approached Ms. Hawkins and “reported their discontent with

1

The second amended complaint refers to Holy Family’s Principal as both “Kuyk” and “Kyuk.”
(Compare Doc. 23 at ¶¶ 9, 11 with Doc. 23 at ¶¶ 10, 13). Because the spelling is immaterial to
the court’s resolution of the motion to dismiss and for the sake of clarity, the court refers to the
Principal as Ms. Kuyk.
3

their Science teacher, Charles Prib[yl], 2 a Caucasian man, and the inappropriate
comments he [made].” (Doc. 23 at ¶ 11). L.W. told Ms. Hawkins that she (L.W.)
was uncomfortable around Mr. Pribyl. (Id. at ¶ 11). Ms. Hawkins reported L.W.’s
concerns to Father Chalmers and Ms. Kuyk, and later, to the State of Alabama
Department of Human Resources. (Id. at ¶¶ 11, 12).
On January 4, 2018, a male student, K.D.M., told Ms. Hawkins that he too
was uncomfortable with Mr. Pribyl. (Doc. 23 at ¶ 13). Ms. Hawkins reported
K.D.M.’s concern to Father Chalmers and Ms. Kuyk. (Id.).
On March 8, 2018, Holy Family terminated Ms. Hawkins’s employment for
wearing a hooded jacket in class in violation of the school’s dress code for
teachers. (Id. at ¶ 14). According to Ms. Hawkins, white teachers wore jackets or
coats with hoods. (Doc. 23 at ¶14). The white teachers were not reprimanded or
fired for dress code violations. (Id. at ¶ 24).
Based on these allegations Ms. Hawkins sued Holy Family. Her second
amended complaint asserts the following claims: Title VII and Title VI Retaliation
(Count I); Race Discrimination (Count II); and Sex Discrimination (Count III).
(Doc. 23). Holy Family filed a motion to dismiss Ms. Hawkins’s second amended
complaint. (Doc. 26). After the parties fully briefed the motion (see doc. 29; doc.
2

The first time Mr. Pribyl is mentioned in the second amended complaint, his name is spelled
“Pribley.” (See Doc. 23 at ¶ 11, line 3). Because Ms. Hawkins refers to the teacher as Mr. Pribyl
throughout the remainder of the complaint, the court assumes that Pribyl is the proper spelling.
Whether the teacher’s name is Pribley or Pribyl is immaterial to the court’s analysis.
4

30), Ms. Hawkins filed a motion for leave to file a third amended complaint (doc.
34). On November 28, 2018, the court held a hearing on the motions.3 After the
hearing, Ms. Hawkins filed a motion for leave to file a sur-reply. (Doc. 35).
Although briefing on Holy Family’s motion to dismiss closed more than two
months ago, the court reluctantly GRANTS Ms. Hawkins’s motion to file a surreply.
C.

Discussion

Holy Family moves to dismiss Ms. Hawkins’s claims on both procedural
and substantive grounds. (See Doc. 26; Doc. 30). Procedurally, Holy Family asks
the court to dismiss Ms. Hawkins’s second amended complaint because it is an
improper shotgun pleading. (Doc. 26 at 13-15; Doc. 30 at 3-4). Also procedurally,
Holy Family asks the court to dismiss Ms. Hawkins’s Title VII retaliation, race
discrimination, and sex discrimination claims as abandoned because Ms. Hawkins
did not address these claims in her response brief. (Doc. 30 at 2). Substantively,
Holy Family argues that Ms. Hawkins’s factual allegations do not plausibly state
claims for relief. (Doc. 26 at 5-13; Doc. 30 at 4-6). The court addresses each
argument in turn.

3

A court reporter was present, and a transcript is available upon request.
5

1.

Shotgun Pleading

The court may dismiss shotgun pleadings that violate either Rule 8(a)(2) or
Rule 10(b) of the Federal Rules of Civil Procedure. Weiland v. Palm Beach Cty.
Sheriff's Office, 792 F.3d 1313, 1320 (11th Cir. 2015). Ms. Hawkins’s second
amended complaint is a shotgun pleading because it “contain[s] multiple counts
where each count adopts the allegations of the preceding counts, causing each
successive count to carry all that came before and the last count to be a
combination of the entire complaint.” Weiland, 792 F.3d at 1321; see Doc. 23 at
¶¶ 15, 23, 27.

Ms. Hawkins’s second amended complaint also is a shotgun

pleading because it does “not separate[e] into a different count each cause of action
or claim for relief.” Weiland, 792 F.3d at 1323; see Doc. 23 at 5 (“Retaliation
under Title VI & Title VII”); Doc. 23 at 7 (asserting Section 1981 and Title VI sex
discrimination claims together in one count). 4
Despite the shotgun nature of Ms. Hawkins’s second amended complaint,
the court finds that dismissal on this ground is not appropriate because it is not
“virtually impossible to know which allegations of fact are intended to support

4

During the November 28, 2018 hearing, Ms. Hawkins’s attorney admitted that her second
amended complaint is a shotgun pleading and that the shotgun nature of the complaint may have
made it confusing for Holy Family and the court to understand what factual allegations support
each of her claims. In an apparent attempt to clarify the basis for each of her claims, during the
hearing, Ms. Hawkins’s attorney discussed facts which do not appear in any of the pleadings.
Because those allegations are not contained in the second amended complaint, the court does not
consider them in ruling on the motion to dismiss.
6

which claim(s) for relief.” Weiland, 792 F.3d at 1325 (quoting Anderson v. Dist.
Bd. of Trustees of Cent. Fla. Cmty. College, 77 F.3d 364, 366 (11th Cir. 1996)).
2.

Abandonment

In its reply brief, Holy Family asserts that Ms. Hawkins has abandoned her
Title VII retaliation, race discrimination, and sex discrimination claims,
eliminating the need to consider the merits of those claims.
Holy Family has not cited, and the court has not located, Supreme Court or
Eleventh Circuit precedent directly on point.

And, the court notes that the

consequence of adopting Defendant’s argument would be to allow the court to do
under Rule 12(b)(6) what it cannot do under Rule 56. In the absence of clear
guidance from the Supreme Court or the Eleventh Circuit and the Eleventh
Circuit’s “strong preference that cases be heard on the merits,” Perez v. Wells
Fargo N.A., 774 F.3d 1329, 1342 (11th Cir. 2014) (internal quotation and citation
omitted), the court will not dismiss Plaintiff’s claims based entirely on her failure
to brief her argument.
Accordingly, the court finds that Ms. Hawkins has not abandoned her Title
VII retaliation, race discrimination, and sex discrimination claims for failing to
address the claims in her response in opposition. Therefore, the court turns to the
merits.

7

3.

Merits
a.

Title VII Retaliation

To state a claim for Title VII retaliation, a plaintiff must allege that: (1) she
engaged in statutorily protected activity; (2) she suffered a materially adverse
action; and (3) there was a causal connection between the protected activity and the
adverse action. Howard v. Walgreen Co., 605 F.3d 1239, 1244 (11th Cir. 2010). It
is undisputed that Ms. Hawkins’s termination constitutes an adverse action, but
Ms. Hawkins’s second amended complaint fails to state a claim for Title VII
retaliation because the facts alleged do not plausibly suggest that Ms. Hawkins
engaged in statutorily protected activity.
Title

VII’s

anti-retaliation

provision

protects

an

employee

from

discrimination if “(1) ‘[s]he has opposed any practice made an unlawful
employment practice by this subchapter’ (the opposition clause) or (2) ‘[s]he has
made a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter’ (the participation clause).” Clover v.
Total Sys. Servs., Inc., 176 F.3d 1346, 1350 (11th Cir. 1999) (citing 42 U.S.C. §
2000e–(3)(a)). Ms. Hawkins does not allege that she was retaliated against for
filing a charge or testifying, assisting, or participating in an investigation or
proceeding under Title VII. Nor does it appear that Ms. Hawkins sufficiently
claims protected activity under the opposition clause.
8

To establish statutorily protected conduct under Title VII’s opposition
clause, a plaintiff must “show[] that [s]he had a good faith, reasonable belief that
the employer was engaged in unlawful employment practices.” Little v. United
Tech., Carrier Transicold Div., 103 F.3d 956, 960 (11th Cir. 1997). The second
amended complaint does not allege Ms. Hawkins believed Holy Family engaged in
unlawful employment practices. Instead, Ms. Hawkins opposed how teachers
treated students. (See Doc. 23 at ¶¶ 10-11, 13). Ms. Hawkins’s complaints to
Father Chalmers and Ms. Kuyk about teachers’ alleged discriminatory treatment of
students “in no way indicts any employment practice of [Holy Family].” Holt v.
Lewis, 955 F. Supp. 1385, 1388 (N.D. Ala. 1995), aff’d, 109 F.3d 771 (11th Cir.
1997) (finding that teacher did not engage in protected conduct and dismissing
Title VII retaliation claim because teacher’s complaint about university’s
discrimination against a student did not oppose a discriminatory practice
proscribed by Title VII) (emphasis in original). Because she did not engage in
protected activity, Ms. Hawkins fails to state a claim for Title VII retaliation.
Because the second amended complaint does not allege facts showing that
Ms. Hawkins engaged in protected activity under Title VII, the court DISMISSES
WITH PREJUDICE Ms. Hawkins’s Title VII retaliation claim.

9

b.

Title VI Retaliation

Title VI provides that, “[n]o person in the United States shall, on the ground
of race, color, or national origin, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any program or activity
receiving Federal financial assistance.” 42 U.S.C. § 2000d. Title VI’s prohibition
on racial discrimination includes a prohibition against retaliation for complaining
about racial discrimination. See Jackson v. Birmingham Bd. of Educ., 544 U.S.
167, 183-84 (2005) (recognizing a cause of action for retaliation under Title IX);
Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1170 n.12 (11th Cir. 2003);
(construing Titles VI and IX in pari materia); see also McCullough v. Bd. of
Regents of the Univ. Sys. of Ga., 623 F. App’x 980, 982 (11th Cir. 2015)
(recognizing Title VI retaliation claim).
The Eleventh Circuit analyzes Title VI retaliation claims under the same
framework as Title VII retaliation claims. See McCullough, 623 F. App’x at 982.
Therefore, to state a claim for Title VI retaliation, a plaintiff must allege facts
showing: “(1) [s]he engaged in statutorily protected expression; (2) the [defendant]
took action that would have been materially adverse to a reasonable person; and (3)
there was a causal link between the two events.”

Id.

The second amended

complaint fails to state a claim for Title VI retaliation because Ms. Hawkins has

10

not alleged that she engaged in protected activity or that there was a causal link
between any protected activity and the adverse employment action.
With respect to protected activity, the Fourth Circuit has explained:
The inquiry is therefore (1) whether [plaintiff] “subjectively (that is, in
good faith) believed” that the district had engaged in a practice
violative of [Title IV], and (2) whether this belief “was objectively
reasonable in light of the facts,” a standard which we will refer to as
one of “reasonable belief.” Weeks v. Harden Mfg. Corp., 291 F.3d
1307, 1312 (11th Cir. 2002).
Peters v. Jenney, 327 F.3d 307, 320-21 (4th Cir. 2003) (footnotes omitted)
(emphasis in original). A substantive violation of Title VI occurs when an entity
that receives federal financial assistance discriminates on the basis of race, color,
or national origin. See 42 U.S.C. § 2000d.
Ms. Hawkins’s second amended complaint fails to state a Title VI retaliation
claim because she has not alleged that Holy Family receives federal funds. (See
generally Doc. 22). Moreover, even if Ms. Hawkins had alleged that Holy Family
receives federal funds, her second amended complaint does not plausibly suggest
that she opposed racial, color, or national origin discrimination against students.
In response to Holy Family’s motion to dismiss her Title VI retaliation
claim, Ms. Hawkins states that she engaged in protected conduct when she
reported to Father Chalmers and Ms. Kuyk complaints from a male student,
K.D.M., that a teacher asked K.D.M. to kiss his lab partner in front of the class.
(Doc. 29 at 4; see Doc. 23 at ¶ 13). Ms. Hawkins’s second amended complaint
11

does not identify the race, color, or national origin of K.D.M. (Doc. 23 at ¶ 13). In
addition, the second amended complaint contains no facts suggesting that the
teacher treated K.D.M. differently than he did other students because of K.D.M’s
race. Thus, Ms. Hawkins has not sufficiently pleaded that she opposed conduct
made unlawful under Title VI.
Other facts in the second amended complaint likewise fail to support a Title
VI retaliation claim. Ms. Hawkins alleges that she reported to the administration
complaints from African-American female students about “disparate treatment in
disciplining female students versus male students” and “the perception of
discriminative treatment of female students.” (Doc. 23 at ¶ 10). Ms. Hawkins also
alleges that she reported to administration complaints from an African-American
female student about a teacher’s “inappropriate comments” about the student’s
body shape. (Doc. 23 at ¶ 11). These facts do not state a Title VI retaliation claim
because, despite the race of the students voicing the concern, the underlying
conduct about which Ms. Hawkins complained was not allegedly discriminatory
conduct based on race or national origin.
Because Ms. Hawkins did not engage in protected conduct under Title VI,
she cannot state a Title VI retaliation claim, and the court DISMISSES the claim
WITH PREJDUICE.

12

c.

Race Discrimination

In Count II of the second amended complaint, Ms. Hawkins alleges that she
“has been discriminated against and treated differently than similarly-situated
white employees solely because of her race and her advocacy for students” (doc.
23 at ¶ 24), but Ms. Hawkins does not identify the law under which she asserts her
race discrimination claim (see doc. 23 at 6, ¶¶ 23-26). Ms. Hawkins’s failure to
“correctly categorize the legal theory giving rise to the claim” does not warrant
dismissal if the second amended complaint “allege[s] facts upon which relief can
be granted.” See Keene v. Prine, 477 F. App’x. 575, 583 (11th Cir. 2012). Based
on the factual allegations contained in the second amended complaint, the court
finds that at the pleading stage, Ms. Hawkins has stated a viable Title VII and §
1981 race discrimination claim.
To state a claim for Title VII or § 1981 race discrimination, a plaintiff must
allege facts showing “(1) that [s]he is a member of a protected racial class, (2) that
[s]he was qualified for the position, (3) that [s]he experienced an adverse
employment action, and (4) that [s]he was replaced by someone outside of his
protected class or received less favorable treatment than a similarly situated person
outside of h[er] protected class.” Flowers v. Troup Cty., Ga., School Dist., 803

13

F.3d 1327, 1336 (11th Cir. 2015).5 At the pleading stage, the complaint is not
required to sustain its evidentiary burden under McDonnell Douglas. Surtain v.
Hamlin Terrace Found., 789 F.3d 1239, 1246 (11th Cir. 2015) (per curiam). It is
sufficient for the plaintiff to “provide enough factual matter (taken as true) to
suggest intentional race discrimination.” Id. (internal quotation marks and citation
omitted).

Ms. Hawkins’s second amended complaint just barely meets this

standard.
The introduction to the second amended complaint states that Ms. Hawkins
seeks relief under Title VII and § 1981. (Doc. 23 at 1). The body of Ms.
Hawkins’s second amended complaint alleges that she was terminated for wearing
a hooded jacket in violation of Holy Family’s dress code for teachers. (Id. at ¶ 14).
Ms. Hawkins alleges that “[o]ther white . . . teachers wear jackets or coats with
hoods, including one of the Fathers who is a teacher.” (Id. at ¶ 14). According to
the second amended complaint, Ms. Hawkins “was the only teacher allegedly not
in compliance with the teacher dress code to be terminated, while white teachers
were not chastised, reprimanded, nor fired in similar mode of dress.” (Doc. 23 at ¶
24).

Although not detailed, these facts raise an inference that Holy Family

terminated Ms. Hawkins because she is African-American. Therefore, under the
5

Whether viewed through the lens of Title VII or § 1981, the elements of a race discrimination
claim are the same. Brown v. Am. Honda Motor Co., Inc., 939 F.2d 946, 949 (11th Cir. 1991)
(“The Supreme Court has held that the test for intentional discrimination in suits under § 1981 is
the same as the formulation used in Title VII discriminatory treatment causes.”).
14

Rule 12 standard, Ms. Hawkins has stated a plausible Title VII and § 1981 race
discrimination claim.
d.

Sex Discrimination

During the November 28, 2018 hearing, Ms. Hawkins conceded that she is
not asserting a sex discrimination claim. In her sur-reply, Ms. Hawkins asks the
court “to allow her to rescind the hasty concession made during oral argument.”
(Doc. 35-2 at 5). Given the Eleventh Circuit’s preference that claims be heard on
their merits, see Perez, 774 F.3d at 1342, the court examines whether the second
amended complaint states a claim for sex discrimination.
Count

III

of

the

second

amended

complaint

is

titled

“Sexual

Discrimination,” but it is less than clear under what legal theory Ms. Hawkins
asserts her sex discrimination claim. (Doc. 23 at 7). To the extent Ms. Hawkins
asserts a sex discrimination claim based on § 1981 or Title VI (see Doc. 23 at ¶
28), the claim fails to state a claim because neither statute prohibits discrimination
based on sex. See 42 U.S.C. § 2000d (prohibiting “race, color, or national origin”
discrimination); Gorman v. Roberts, 909 F. Supp. 1493, 1498 (M.D. Ala. 1995)
(“[S]ection 1981 only applies to racial discrimination, not to discrimination based
upon . . .sex.”).
In addition, Count III fails to state a claim for sex discrimination under Title
VII. (See Doc. 23 at ¶¶ 1, 27). To state a claim under Title VII, Ms. Hawkins must
15

allege facts showing that she was a qualified member of a protected class and was
subjected to an adverse action in contrast to similarly situated male employees.
Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir. 2004). The second
amended complaint alleges in a conclusory manner that Ms. Hawkins “has been
discriminated against and treated differently than similarly-situated employees
solely because of her sex.” (Doc. 23 at ¶ 27). The court need not accept this
conclusory allegation as true, see Twombly, 550 U.S. at 555, and the second
amended complaint lacks other facts plausibly suggesting that Holy Family
discriminated against Ms. Hawkins because she is a female.
Accordingly, the court DISMISSES WITH PREJUDICE Ms. Hawkins’s
sex discrimination claim.
II.

Motion to Amend
Two days before the November 28, 2018 hearing, Ms. Hawkins sought leave

to amend her complaint. (Doc. 34). Ms. Hawkins filed her motion six weeks after
the amended pleading deadline established in the scheduling order. (See Doc. 28 at
1) (setting a deadline of October 16, 2018 for plaintiff to amend her pleadings).
Therefore, Ms. Hawkins must show “good cause” for the amendment. Fed. R. Civ.
P. 16(b)(4) (“A schedule may be modified only for good cause and with the
judge’s consent.”); see So. Grouts & Mortars, Inc. v. 3M Co., 575 F.3d 1235, 1241
(11th Cir. 2009) (“A plaintiff seeking leave to amend its complaint after the

16

deadline designated in a scheduling order must demonstrate ‘good cause’ under
Fed. R. Civ. P. 16(b).”).
In support of her motion for leave to amend, Ms. Hawkins does not address
good cause under Rule 16(b). Rather, she focuses on the liberal amendment
standard under Federal Rule of Civil Procedure 15(a). (Doc. 34 at 1-2). If Ms.
Hawkins had filed her motion for leave to amend before the expiration of the
amended pleading deadline, Rule 15(a) would govern the court’s analysis. But
because Ms. Hawkins filed her motion after the scheduling order deadline, Ms.
Hawkins must first demonstrate good cause under Rule 16(b) before the court can
consider whether amendment is proper under Rule 15(a). See Sosa v. Airprint Sys.,
Inc., 133 F.3d 1417, 1419 (11th Cir. 1998).
Rule 16(b)’s “good cause standard precludes modification unless the
schedule cannot be met despite the diligence of the party seeking the extension.”
Sosa, 133 F.3d at 1418 (internal quotation marks and citation omitted). Setting
aside the fact that Ms. Hawkins wholly fails to address Rule 16(b)’s good cause in
her motion to amend, the only justification that she provides for amendment is to
“provide clarity and address defendants’ concerns regarding a ‘shotgun’ pleading.”
(Doc. 34 at 1). Ms. Hawkins has been on notice that Holy Family challenged the
shotgun nature of her pleadings since at least June 22, 2018 when Holy Family
filed its motion to dismiss Ms. Hawkins’s original complaint. (Doc. 8 at 16-20).
17

In its August 29, 2018 motion to dismiss, Holy Family again sought dismissal of
Ms. Hawkins’s operative complaint as a shotgun pleading. (Doc. 26 at 13-15).
Briefing on Holy Family’s motion closed on September 19, 2018. (See Doc. 29;
Doc. 30). Ms. Hawkins had ample notice and time to seek leave to amend her
complaint to correct the shotgun deficiencies before the October 18, 2018 pleading
deadline, but she did not. Therefore, Ms. Hawkins’s proposed justification for the
amended complaint falls short of Rule 16(b)’s “good cause” threshold.
Moreover, the factual allegations contained in the proposed third amended
complaint appear in the second amended complaint that she filed on August 15,
2018. (Compare Doc. 23 at 3-5 with Doc. 34-1 at 3-5). In fact, some iteration of
the factual allegations contained in the proposed third amended complaint also
appear in Ms. Hawkins’s original and first amended complaints that she filed on
April 24, 2018 and July 18, 2018, respectively. (Compare Doc. 1 at 3-9 and Doc.
14 at 3 with Doc. 34-1 at 3-5). Thus, even if Ms. Hawkins had shown good cause
for why she could not correct the shotgun pleading deficiencies in her complaint
before the scheduling order deadline, the court still would disallow amendment at
this stage because Ms. Hawkins has had in her possession for at least seven months
the facts contained in the proposed amended complaint.

See So. Grouts &

Mortars, Inc., 575 F.3d at 1242 (plaintiff lacked diligence under Rule 16(b)

18

because it filed a motion to amend with information it had known for over a
month).
In sum, Ms. Hawkins has not demonstrated that she could not meet the
scheduling order pleading deadline with diligence.

Accordingly, the court

DENIES Ms. Hawkins’s motion for leave to amend. (Doc. 34).
III.

Conclusion
For the reasons explained above, the court GRANTS IN PART and

DENIES IN PART Holy Family’s motion to dismiss. (Doc. 26). The court
DENIES Ms. Hawkins’s motion for leave to amend.

(Doc. 34).

The court

GRANTS Ms. Hawkins’s motion for leave to file a sur-reply. (Doc. 35).
The court DISMISSES WITH PREJUDICE Ms. Hawkins’s Title VII
retaliation, Title VI race discrimination, and sex discrimination claims.
Hawkins’s Title VII and § 1981 race discrimination claim will proceed.
DONE and ORDERED this December 4, 2018.

_________________________________
ANNEMARIE CARNEY AXON
UNITED STATES DISTRICT JUDGE

19

Ms.