Harrison-Khatana v. Cannon et al
MEMORANDUM OPINION and ORDER GRANTING IN PART and DENYING IN PART 39 motion for leave to file an amended complaint, DIRECTING Plaintiff to file, within 14 days, an amended complaint excising the IIED claim and supporting factual allegations propose d in the amended complaint attached to her motion (ECF No. 39-1), but identical in all respects as to her Rehabilitation Act claim, and DENYING AS MOOT 29 motion for summary judgment. Signed by Chief Judge Deborah K. Chasanow on 8/27/13. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Civil Action No. DKC 11-3715
WASHINGTON METROPOLITAN AREA
MEMORANDUM OPINION AND ORDER
complaint against her former employer, Washington Metropolitan
Area Transit Authority (“WMATA”), and a WMATA district manager,
alleging violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. §§ 2000e et al. (“Title VII”), and the
Americans with Disabilities Act of 1990, as amended, 42 U.S.C.
§§ 12101 et seq. (“ADA”).1
WMATA responded by filing an answer,
asserting a number of affirmative defenses, and the individual
defendant moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(6).
Plaintiff’s Title VII and ADA claims could not be maintained
against the manager in his individual capacity.
On October 31,
2012, the court entered a scheduling order, establishing a March
Concomitantly with her complaint, Plaintiff filed a motion
for leave to proceed in forma pauperis (ECF No. 2), which was
subsequently granted (ECF No. 3).
filing of a status report and an April 15, 2013, deadline for
the filing of dispositive motions.
On March 15, both parties filed status reports indicating
that discovery had been completed and WMATA stated its intent to
extension, WMATA filed its motion for summary judgment on April
(ECF No. 29).
On May 17, counsel entered an appearance on
Plaintiff’s behalf (ECF No. 32) and moved for an extension of
time to respond to the summary judgment motion (ECF No. 31).
Upon WMATA’s consent, that motion was granted.
responded to the summary judgment motion, however.
attaching an amended pleading in which she seeks to raise a
U.S.C. § 701 et seq., and a supplemental claim for intentional
infliction of emotional distress.
(ECF No. 39).
opposition papers on July 23, 2013.
(ECF No. 42).
Because any amendment of the complaint would necessitate
pleadings, and Fed.R.Civ.P. 16(b), governing modification of the
recently described as follows:
Once a responsive pleading is filed, a
plaintiff may only amend his complaint by
leave of the court or by written consent of
the defendant, although the court “should
freely give leave when justice so requires.”
Fed.R.Civ.P. 15(a)(2). This liberal rule
gives effect to the federal policy in favor
of resolving cases on their merits, rather
than disposing of them on technicalities.
See Laber v. Harvey, 438 F.3d 404, 426 (4th
Cir. 2006) (en banc). Under Rule 15(a),
leave to amend should be denied “only when
the amendment would be prejudicial to the
opposing party, there has been bad faith on
the part of the moving party, or the
amendment would be futile.” Id. at 426–47.
However, where a motion to amend is
brought “after the deadlines provided by a
scheduling order have passed,” a party must
meet an additional requirement to prevail.
See Nourison Rug Corp. v. Parvizian, 535
F.3d 295, 298–99 (4th Cir. 2008). “A schedule
may be modified only for good cause and with
the judge’s consent,” Fed.R.Civ.P. 16(b)(4),
and this “good cause standard must be
satisfied to justify [an untimely motion
for] leave to amend the pleadings.” Nourison
Rug Corp., 535 F.3d at 298; see also United
States v. Godwin, 247 F.R.D. 503, 506
(E.D.N.C. 2007) (adopting a “two-part test
whereby [an untimely] amendment to the
pleadings must satisfy the requirements of
both Rule 16(b) and Rule 15(a), in that
order”). If a party fails to show good
cause, the court’s inquiry ends, and it need
not consider whether the moving party meets
the requirements of Rule 15(a). Godwin, 247
F.R.D. at 506.
determining whether a movant has shown good
cause to modify the court’s scheduling order
is the diligence of the moving party.
Montgomery v. Anne Arundel Cnty., Maryland,
182 F. App’x 156, 162 (4th Cir. 2006) (per
curiam). Thus, “‘[g]ood cause under Rule
16(b) exists when evidence supporting the
proposed amendment would not have been
discovered in the exercise of reasonable
diligence until after the amendment deadline
had passed.’” Godwin, 247 F.R.D. at 506
(quoting Interstate Narrow Fabrics, Inc. v.
Century USA, Inc., 218 F.R.D. 455, 460
Brunson v. Butler, No. 5:09-CT-3063-FL, 2013 WL 3923996, at *3
(E.D.N.C. July 29, 2013).
Here, Plaintiff has met the requisite standard for leave to
consideration in this analysis is that, until very recently, she
has been self-represented in this matter.
Plaintiff concedes in
her motion papers that “[t]he cause of action boxes checked by
plaintiff included Title 1 of the ADA and Title VII”; that she
“incorrectly checked off the wrong cause of action”; and that
(ECF No. 39, at 3-4).
The Fourth Circuit
has a “strong policy that cases be decided on their merits,”
United States v. Shaffer Equip. Co., 11 F.3d 450, 453 (4th Cir.
1993), and that policy would not be served by denying a pro se
Plaintiff the opportunity to assert a disability discrimination
claim due to a mere error in transcription – particularly where,
as here, the sufficiency of the pleading was not challenged by
the defendant prior to summary judgment.
Indeed, had WMATA
filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6),
Plaintiff would have been alerted to this error and had the
opportunity to amend at a much earlier date.
15(a)(1)(B) (“[a] party may amend its pleading once as a matter
of course within . . . 21 days after service of a motion under
Moreover, given that the Rehabilitation Act and ADA provide
virtually identical causes of action, little prejudice, if any,
could inure to WMATA as a result of permitting amendment to
substitute a Rehabilitation Act claim.
See Spencer v. Earley,
repeatedly held that ‘[t]he ADA and Rehabilitation Act generally
are construed to impose the same requirements,’ and ‘[b]ecause
the language of the Acts is substantially the same, we apply the
same analysis to both.’” (quoting Baird v. Rose, 192 F.3d 462,
468 (4th Cir. 1999)).
Although WMATA argues that permitting
Plaintiff to amend would be futile because her Rehabilitation
Act claim would now be time barred, that argument ignores the
relation back doctrine set forth in Fed.R.Civ.P. 15(c)(1)(B),
which provides that “[a]n amendment to a pleading relates back
to the date of the original pleading when . . . the amendment
WMATA is free to argue that this rule does not
rescue Plaintiff’s cause of action in a future motion, but it is
not clear from the face of the amended complaint that a claim
under the Rehabilitation Act would be precluded by the statute
In opposing Plaintiff’s motion, WMATA’s primary argument is
that “Plaintiff proposes a new claim under the Rehabilitation
Act, a cause of action for which WMATA, unlike the ADA,  does
not enjoy immunity.”
(ECF No. ECF No. 42, at 5).
however, a determination on the merits of Plaintiff’s disability
facilitated by the proposed amendment with little prejudice to
modification of the schedule and permitting amendment would not
be futile or unduly prejudicial, Plaintiff will be granted leave
to amend as to the Rehabilitation Act claim.
intentional infliction of emotional distress (“IIED”) was first
recognized by the Court of Appeals of Maryland in Harris v.
Jones, 281 Md. 560 (1977).
To recover for such a claim under
Maryland law, a plaintiff must show that: (1) the defendant’s
conduct was intentional or reckless; (2) the conduct was extreme
or outrageous; (3) there is a causal connection between the
elements must be pled and proved with specificity.
It is not
enough for a plaintiff merely to allege that they exist; [s]he
must set forth facts that, if true, would suffice to demonstrate
that they exist.”
Foor v. Juvenile Servs. Admin., 78 Md.App.
151, 175 (1989).
This tort is “rarely viable” and “is to be
used sparingly and only for opprobrious behavior that includes
truly outrageous conduct.”
Respess v. Travelers Cas. & Sur. Co.
of America, 770 F.Supp.2d 751, 757 (D.Md. 2011) (quoting Snyder
v. Phelps, 580 F.3d 206, 231 (4th Cir. 2009)).
state a claim under this standard, as the alleged offensive
conduct does not amount to the “extreme and outrageous” conduct
necessary to support an IIED claim.
See Figueiredo–Torres v.
Nickel, 321 Md. 642, 655 (1991) (“mere insults, indignities,
threats, annoyances, petty oppressions, or other trivialities
are insufficient to support a claim for intentional infliction
Verizon Md., Inc., Civ. No. RDB 09–2379, 2010 WL 4449361, at *8
(D.Md. Nov.5, 2010) (although yelling at the plaintiff in front
of co-workers “may have embarrassed or upset [her], it does not
decency’”); Arbabi v. Fred Meyers, Inc., 205 F.Supp.2d 462, 466
(D.Md. 2002) (“workplace harassment . . . almost never rises to
the level of outrageousness, and almost never results in such
severely debilitating emotional trauma, as to reach the high
infliction of emotional distress under Maryland law.”).
amendment would be futile as to this claim, leave will not be
Accordingly, it is this 27th day of August, 2013, by the
filed by Plaintiff Deborah Harrison-Khatana (ECF No. 39) BE, and
the same hereby IS, GRANTED IN PART AND DENIED IN PART;
Plaintiff is directed to file, within fourteen (14)
supporting factual allegations proposed in the amended complaint
attached to her motion (ECF No. 39-1), but identical in all
respects as to her Rehabilitation Act claim;
The motion for summary judgment filed by WMATA (ECF
No. 29) BE, and the same hereby IS, DENIED AS MOOT; and
foregoing Memorandum Opinion and this Order to counsel for the
DEBORAH K. CHASANOW
United States District Judge
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