Askew v. Enterprise Leasing Company of Detroit, LLC

Filing 27

OPINION AND ORDER Granting in Part and Denying in Part Plaintiff's Motion to Compel 18 , and Granting Plaintiff's Motion for Leave to File an Amended Complaint 23 . Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTH ERN DIVISION

LA’TASHA ASKEW,
Plaintiff,

CASE NO. 17-10472
HON. DENISE PAGE HOOD

v.
ENTERPRISE LEASING COMPANY
OF DETROIT, LLC,
Defendant.
_________________________________________/
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S MOTION TO COMPEL [#18], AND GRANTING
PLAINTIFF’S MOTION FOR LEAVE TO FILE AN AMENDED
COMPLAINT [#23]

I.

INTRODUCTION
On February 14, 2017, Plaintiff La’Tasha Askew (“Askew”) brought this

action alleging claims of illegal discrimination, retaliation and interference by
Defendant Enterprise Leasing Company, LLC. (“Enterprise”), pursuant to the
Family and Medical Leave Act, 29 U.S.C. § 2601, et seq. (“FMLA”), Title VII of
the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq., the Pregnancy
Discrimination Act and the Elliott-Larsen Civil Rights Act, MCL § 37.210 et seq.
(ELCRA) (Doc # 1). Askew’s Complaint alleges that her supervisor, Noah Fox,

1 

singled her out for negative treatment because of her race and sex, among other
things.
On April 14, 2017, a Scheduling Order was issued setting a Discovery due
date of September 1, 2017, and a Dispositive Motion Cut-Off date of October 2,
2017. (Doc # 8) On September 14, 2017, a Stipulated Order changed the Discovery
due date to November 30, 2017, and the Dispositive Motion Cut-Off date to January
8, 2018. (Doc # 11) On November 15, 2017, a Second Stipulated Order changed
the Discovery due date to January 29, 2018, and the Dispositive Motion Cut-Off
date to March 9, 2018. (Doc # 13) On February 5, 2018, pursuant to a Third
Stipulated Order, the Discovery due date was changed to March 15, 2018, and the
Dispositive Motion Cut-Off date was changed to April 13, 2018. (Doc # 14)
This matter is before the Court on Plaintiff’s Motion to Compel, Extend
Discovery or for Discovery Sanctions, filed on March 15, 2018 (Doc # 18), and
Plaintiff’s Motion for Leave to File an Amended Complaint, filed on April 20, 2018.
(Doc # 23) On April 18, 2018, the Dispositive Motion Cut-Off date was extended
to May 29, 2018, to allow Plaintiff to move to amend the Complaint. (Doc # 22)
For the reasons that follow, Plaintiff’s Motion to Compel is GRANTED IN PART
and DENIED IN PART, and Plaintiff’s Motion for Leave to File an Amended
Complaint is GRANTED.

2 

II.

PLAINTIFF’S PROPOSED AMENDMENTS
Askew is African-American woman who was formerly employed by

Enterprise, working at various “Enterprise Rent-a-Car” locations throughout
Michigan from July 2010 through January 2016.

Askew lasted worked at

Enterprise’s Royal Oak location. Askew was last supervised by Noah Fox (“Fox”).
Askew was one of a small number of African American women employees
supervised by Fox.
Askew became pregnant with her first child on or around April 5, 2015.
Askew notified Enterprise of her pregnancy. Askew alleges that, shortly after
Enterprise learned of her pregnancy, she received a series of unwarranted and
pretextual write-ups. On October 1, 2015, Askew took FMLA-qualified leave for
the remainder of her pregnancy. Enterprise required that Askew get clearance from
her doctor before she could return to work, which Askew provided. Askew returned
to work on December 25, 2015. Askew was terminated on January 26, 2016.
Askew was replaced by a Caucasian man.
Plaintiff seeks to amend her Complaint to add 42 U.S.C. § 1981
discrimination and retaliation claims against Defendant based on the same factual
allegations and analytical framework that applies to her claims under Title VII.
(Doc # 23, Pg. 11–12) Plaintiff asserts that Defendant will not suffer prejudice
because Defendant will be called on to defend claims under the same legal
3 

framework used to analyze claims already present in this action. (Id. at 13) Finally,
Plaintiff asserts she did not know she had potential 42 U.S.C. § 1981 claims until
after witness Caitlin Rourke’s deposition on March 9, 2018. (Doc # 26, Pg. 3)
III.

MOTION FOR LEAVE TO AMEND

A.

Rule 15(a)
In a case where a responsive pleading has been filed, a party may amend its

pleading only with the written consent of the opposing party or by leave of the court.
Fed. R. Civ. P. 15(a)(2). Defendants do not concur in Plaintiff’s motion, so it is
within the Court’s discretion whether to grant Plaintiff’s motion for leave to file an
amended complaint. Pursuant to Rule 15(a)(2), “leave shall be freely given when
justice so requires.” The factors a court is to consider when determining whether
to permit a plaintiff to file an amended complaint are:
(1)

the delay in filing the motion,

(2)

the lack of notice to the other party,

(3)

bad faith by the moving party,

(4)

repeated failure to cure deficiencies by previous amendments,

(5)

undue prejudice to the opposing party, and

(6)

futility of the amendment.

Wade v. Knoxville Utilities Bd., 259 F.3d 452, 460 (6th Cir. 2001); Perkins v. Am.
Elec. Power Fuel Supply, Inc., 246 F.3d 593, 605 (6th Cir. 2001). A district court
4 

may deny a plaintiff leave to amend his complaint when the proposed amendment
would be futile. See, e.g., Yuhasz v. Brush Wellman, Inc., 341 F.3d 559, 569 (6th
Cir. 2003) (citing Foman v. Davis, 371 U.S. 178 (1962)). An amendment is deemed
futile when it would not withstand a Rule 12(b)(6) motion to dismiss. Rose v.
Hartford Underwriters Ins. Co., 203 F.3d 417, 420-21 (6th Cir. 2000).
B.

Analysis
Defendant argues that Plaintiff’s amendment should be denied because the

amendment is not timely and it will unfairly prejudice Defendant. Defendant claims
that, because the period for Discovery is closed, Defendant will be prejudiced by
being denied the ability to obtain discovery on the issue of punitive damages—a
potential remedy under 42 U.S.C. § 1981 claims. Considering the analyses that
follow, Defendant’s arguments are unpersuasive.
The Court finds that Plaintiff is not adding allegations that will require
additional prolonged discovery. Plaintiff’s new claims are based on the same
factual allegations and evidence as Plaintiff’s existing claims under Title VII and
the ELCRA. Defendant will not be required to incur significant additional costs
beyond exploring the amount of potential punitive damages in this case.
Plaintiff’s Motion for Leave to Amend Complaint was filed after the
discovery process, but is based on testimony obtained during the discovery period.
Plaintiff asserts she did not know she has a potential 42 U.S.C. § 1981 claims until
5 

after witness Caitlin Rourke’s deposition. The facts suggest Plaintiff is making an
effort to add a claim she perceives to be valid.
The Court concludes that, although it appears Plaintiff could have moved to
amend the Complaint earlier in the proceedings: (1) Defendant has not been harmed
by a lack of notice; (2) there is no evidence Plaintiff is acting in bad faith; (3) there
have been no previous attempts to amend; and (4) Defendant will not be unduly
prejudiced by the amendment.
Defendant suggests that Plaintiff’s proposed amendments are futile but did
not provide any argument to support that assertion. Plaintiff argues that the
substantive legal standard for stating a claim under 42 U.S.C. § 1981 and Title VII
is the same in the employment context. The Court agrees with Plaintiff. See, e.g.,
Myers v. Ameritech Corp., No. 01-71025, 2002 WL 31994281, at *8 (E.D. Mich.
May 13, 2002) (Borman, J.) (“[C]laims of alleged race discrimination brought under
[42 U .S.C.] § 1981 and the Elliot–Larsen [Civil Rights] Act [“ELCRA”] [are
reviewed] under the same standards as claims of race discrimination brought under
Title VII of the Civil Rights Act of 1964 (“Title VII”).”). The Court notes that
Defendant has not filed a Motion to Dismiss Plaintiff’s Title VII or ELCRA claims.
The Court finds that Plaintiff’s proposed claims are not facially futile.
Other than the fact that Plaintiff did not move to amend the Complaint for an
extended period of time, Defendant has not presented the Court with a persuasive
6 

argument or evidence of potential prejudice, why the delay in moving to amend was
unwarranted, or how the allegations fail to state a claim as a matter of law. The
Court holds that Plaintiff may file an amended complaint and orders that Plaintiff
immediately file the “First Proposed Amended Complaint,” attached as “Exhibit
Amended Complaint” (or “Exhibit 1”) to its Motion to Amend Complaint.
IV. MOTION TO COMPEL, EXTEND DISCOVERY OR FOR SANCTIONS
Plaintiff filed the present Motion to Compel on March 15, 2018, the last day
of Discovery. (Doc # 18) Plaintiff requests the Court compel Defendant to produce
information related to a number of performance metrics for Plaintiff and her
coworkers that were not produced with Defendant’s initial disclosures or in
response to Plaintiff’s document requests. Plaintiff’s requests seek information
Plaintiff deems relevant to her claims pursuant to Title VII and the ELCRA.
Defendant responds that Plaintiff was terminated due to her tardiness, not her
performance, which renders performance information on Plaintiff’s “comparators”
irrelevant. (Doc # 19, Pg. 10) Defendant also makes a number of procedural
arguments: (1) that Plaintiff’s Motion is procedurally improper because Plaintiff
failed to seek Concurrence; (2) the Court should deny Plaintiff’s Motion to Compel
because it fails to comply with Rule 34’s 30 day response requirement; and (3) that
the Motion should be denied because discovery has closed. Defendant’s arguments
are unpersuasive.
7 

“Rule 26(b) allows a party to obtain discovery concerning any non-privileged
matter that is relevant to any party’s claim or defense.” Id.; Fed. R. Civ. P. 26(b).
“Evidence is relevant if[] it has any tendency to make a fact [of consequence] more
or less probable than it would be without the evidence.” Fed. R. Evid. 401. A court
may issue an order compelling discovery upon a properly filed motion. Fed. R. Civ.
P. 37(a)(1).
Defendant’s argument regarding the relevance of the information Plaintiff
seeks is without merit.

Defendant contends that Plaintiff seeks irrelevant

information because the information is not related to Defendant’s legitimate, nondiscriminatory reason for terminating Plaintiff’s employment. That is not an
argument, but Defendant’s anticipated defense to Plaintiff’s claims.

Evidence

pertaining to the performance of “comparators” in clearly relevant to Plaintiff’s
claims under the McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973),
framework. Defendant’s anticipated defense initiates the pretext analysis for which
the “comparator” information would be most relevant.
Regarding Defendant’s procedural arguments:
(1) The Court is satisfied that Plaintiff met the requirements of Local Rule
7.1(a) because Plaintiff and Defendant have had several communications
related to the factual and legal basis of the present Motion. Defendant has
not produced the requested information because, as previously stated,
8 

Defendant does not consider the information relevant to the case.
Defendant is incorrect.
(2) Defendant’s argument that Plaintiff’s requests do not comply with Rule
34 of the Federal Rules of Civil Procedure lacks merit. Defendant’s
argument is based upon one discovery request made following the
Deposition of Caitlin Rourke. It is clear in Plaintiff’s Motion that Plaintiff
seeks information consistent with Document Requests No. 12 and No. 21,
sent on April 18, 2017. Defendant has refused to send the requested
information based on a meritless relevance argument.
(3) Defendant’s argument regarding the Discovery period is unpersuasive
because the requested information was sought before the close of
Discovery. In addition, consistent with this Court’s conclusion regarding
Plaintiff’s Motion for Leave to File an Amended Complaint, the Court
orders that the Discovery period will be reopened to allow Defendant time
to obtain discovery regarding the issue of punitive damages. The Court
finds that Defendant’s potential, although minor, prejudice, and failure to
disclose relevant information to Plaintiff provide good cause to modify
the case Schedule under Rule 16 of the Federal Rules of Civil Procedure.

9 

Finally, because the Court orders that Discovery be reopened, the Court will
not address Plaintiff’s request for discovery sanctions.

Defendant will have

additional time to comply with Plaintiff’s discovery requests.
V.

CONCLUSION
For the reasons stated above,
IT IS HEREBY ORDERED that Plaintiff La’Tasha Askew’s Motion to

Compel (Doc # 18) is GRANTED consistent with this opinion and order.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave to File
Amended Complaint (Doc # 23) is GRANTED.
IT IS FURTHER ORDERED that the Motion with respect to sanctions is
DENIED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that Discovery is reopened for 60 days from
the filing of this opinion and order.
IT IS FURTHER ORDERED that Defendant is required to fully comply
with Plaintiff’s Document Request No. 12, which reads:
Produce all documents, including electronic communications of
any kind, relied upon, consulted, or referenced by Defendant or any of
its agents, servants, or employee in terminating Plaintiff.
IT IS FURTHER ORDERED that Defendant is required to fully comply
with Plaintiff’s Document Request No. 21, which reads:
Produce all documents related to every metric, matrix, software,
program, computer program, spreadsheet, policy, standard, criteria, or
10 

other means used to quantify, track, or evaluate Plaintiff’s job
performance.
IT IS FURTHER ORDERED that Defendant is required to produce ESQI
(customer satisfaction) reports, Sales Reports, Revenue Reports, Staffing Reports,
Fleet inventory or fleet growth, Forecasts, Reservation numbers, BMI Reports, for
Plaintiff or her coworkers. (See Pg. 11 of Plaintiff’s Motion (Doc # 18))
Defendant may conduct discovery related to the Amended Complaint.

S/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: August 20, 2018
I hereby certify that a copy of the foregoing document was served upon counsel of
record on August 20, 2018, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

11