Smith v. Grifols USA, LLC

Filing 77

MEMORANDUM AND ORDER - Accordingly, IT IS HEREBY ORDERED that Plaintiff's Motion to File Second Amended Complaint [ECF No. 59] is DENIED. IT IS FURTHER ORDERED that Plaintiff's Motion to Revise Memorandum and Order Dated March 8, 2016 [ECF No. 69] is DENIED. Signed by District Judge E. Richard Webber on August 1, 2016. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JENNA SMITH,
Plaintiff,
v.
GRIFOLS USA, LLC, et al.,
Defendants.

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No. 4:15CV00431 ERW

MEMORANDUM AND ORDER
This matter comes before the Court on Plaintiff’s Motion to File Second Amended
Complaint [ECF No. 59] and Plaintiff’s Motion to Revise Memorandum and Order Dated March
8, 2016 [ECF No. 69].
I.

BACKGROUND
Plaintiff Jenna Smith (“Plaintiff”) initiated this lawsuit by filing a petition in the Circuit

Court of St. Louis County, Missouri on January 26, 2015, claiming gender discrimination and
termination based on gender under the Missouri Human Rights Act (“MHRA”), against
Defendant Grifols USA, LLC (“GUSA”). On January 29, 2015, Plaintiff filed an amended
petition asserting similar MHRA claims. On March 9, 2015, GUSA removed the action to this
Court. On July 22, 2015, Plaintiff filed an Amended Complaint asserting claims pursuant to Title
VII, 42 U.S.C. § 2000e et seq, adding Grifols Shared Services North America, Inc. (“GSSNA”)1,
and Grifols Therapeutics Inc. (“GTI”)2 as Defendants. The complaint included the following
allegations.

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Improperly identified in Plaintiff’s complaint as Grifols, Inc.
Improperly identified in Plaintiff’s complaint as Grifols Therapeutics, Inc.

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Plaintiff worked as a medical sales representative for Defendants from 2009 to 2014.
During this time period, Plaintiff was subjected to intimidation, ridicule, and insults by
supervisory employees. Sexually suggestive comments were made to Plaintiff. She was shouted
at in public and her arm was physically grabbed by a supervisor. She was accused of improper
conduct, not paid her bonuses, and her documents were falsified. She was not provided with
customer leads regarding customers in her territory, customers in her territory were taken away
and assigned to other sales representatives, and she was not promoted over less qualified male
employees, among other actions. On February 6, 2014, she was terminated. She filed charges
with the Missouri Commission on Human Rights (“MCHR”) and Equal Employment
Opportunity (“EEOC”) in October 2013, and December 2013.3 She was issued a right to sue
letter on October 24, 2014.
In response to Plaintiff’s Amended Complaint, GUSA , GSSNA, and GTI filed Motions
to Dismiss for failure to state a claim upon which relief can be granted pursuant to Federal Rule
of Civil Procedure (“FRCP”) 12(b)(6). On March 8, 2016, the Court granted, in part, and denied,
in part, Defendants’ Motions to Dismiss. The Court dismissed Plaintiff’s claims relating to the
denunciation of single moms, Defendants’ refusal to accommodate single parents, the
falsification of Plaintiff’s documents, and Count II for retaliation because they did not relate
back to the original petition. The Court also dismissed Plaintiff’s claim she was written up while
male employees involved in the same improper activity were not written up, because it was
outside the 300-day statute of limitations period. Plaintiff’s claims regarding allegations from
2012 to 2014 about failure to pay bonuses, termination, failure to provide a final paycheck until
2015, taking customers away and assigning them to different sales representatives, and a failure

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Plaintiff refers to the December 2013 charge as the “supplemental charge.”

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to promote Plaintiff were dismissed for failure to exhaust administrative remedies. The Court
denied the remainder of Defendants’ Motions.
Subsequent to the Court’s order, Defendants filed an answer and a case management
order was entered. On April 29, 2016, Plaintiff filed a Motion to File Second Amended
Complaint (“Motion to Amend”) and then filed a Motion to Revise Memorandum and Order
Dated March 8, 2016 (“Motion for Reconsideration”) on June 1, 2016.
II.

DISCUSSION
Plaintiff has a Motion to Amend and a Motion for Reconsideration. In her Motion to

Amend, Plaintiff seeks leave of the Court to file a second amended complaint. She states the
request is in compliance with the case management order, the Court has not specifically
prohibited additional amendments to the pleadings, and Defendants will not be prejudiced. In her
Motion for Reconsideration, Plaintiff asks the Court to revise its order dismissing Count II, a
retaliation claim, as time barred. Plaintiff claims this ruling is contrary to case law and Federal
Rule of Civil Procedure (“FRCP”) 8. If the Court does not revise its order, Plaintiff asks the
Court to stay the action and enter an order allowing an immediate appeal pursuant to 28 U.S.C. §
1292(b). The Court will first address Plaintiff’s Motion for Reconsideration and then Plaintiff’s
Motion to Amend.
A.

Motion for Reconsideration

In Plaintiff’s Motion for Reconsideration, she makes three arguments as to why the Court
should reconsider its dismissal of Count II of her Amended Complaint. First, she asserts her
reference to the December 2013 supplemental charge is embraced by the original pleadings and
is so central to matters pled in the amended complaint, it must be considered for purposes of a
motion to dismiss. Second, she argues Defendants received notice of her retaliation claim prior to

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the end of the statute of limitations period; thus, relation back will not prejudice Defendants in
defending the claim. Finally, she claims her supplemental charge was set out or attempted to be
set out in the original pleadings, so all matters in the supplemental charge relate back under
FRCP 15(c). In response, Defendants assert Plaintiff lacks any basis for reconsideration of the
Court’s ruling. Defendants argue any claim of retaliatory discharge is barred for failure to
exhaust administrative remedies and is barred by the statute of limitations and does not relate
back to Plaintiff’s initial pleadings before this Court.
Rule 54(b) of the Federal Rules of Civil Procedure allows the Court to revise any order,
before the entry of judgment adjudicating all the parties’ rights, claims and liabilities. A motion
to reconsider may also be brought under Rule 54(b) to correct any “clearly or manifestly
erroneous findings of facts or conclusions of law.” Prosser v. Nagaldinne, No. 4:09CV2117
JAR, 2013 WL 308770 at *1 (E.D. Mo. Jan. 25, 2013) (quoting Jones v. Casey's Gen. Stores,
551 F. Supp. 2d 848, 854 (S.D. Iowa 2008)). “The exact standard applicable to the granting of a
motion under Rule 54(b) is not clear, though it is typically held to be less exacting than would be
a motion under Federal Rule of Civil Procedure 59(e), which is in turn less exacting than the
standards enunciated in Federal Rule of Civil procedure 60(b)”. Wells' Dairy, Inc. v. Travelers
Indem. Co. of Ill., 336 F. Supp. 2d 906, 909 (N.D. Iowa 2004).
“A motion for reconsideration is not a vehicle to identify facts or legal arguments that
could have been, but were not, raised at the time the relevant motion was pending.”Julianello v.
K-V Pharm. Co., 791 F.3d 915, 923 (8th Cir. 2015). “District courts have substantial discretion
in ruling on motions for reconsideration.
In Heuberl Material Handling, Incorporated v. Universal Underwriters Insurance
Company, the United States District Court for the Western District of Missouri held it would

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consider a motion for reconsideration for an interlocutory order if the party demonstrates it did
not have a fair opportunity to argue the matter previously and granting the motion was necessary
to correct a significant error. No. 4:10-CV-00102-DGK, 2011 WL 1458654 at *1 (W.D. Mo.
Apr. 15, 2011). This Court has held a motion for reconsideration can be granted when there is a
manifest error of law or fact, any true apprehension of the adversarial issues presented to the
court or a party’s positions about those issues, or any other good reason to revisit an order. Reid
v. Doe Run Resources Corp., No. 4:11CV44 CDP, 2015 WL 3855151 at *2 (E.D. Mo. Jun. 22,
2015). Similarly, the United States District Court for the District of Columbia held a motion for
reconsideration may be granted when a court has “patently misunderstood a party, has made a
decision outside the adversarial issues presented to the Court by the parties, has made an error
not of reasoning but of apprehension, or where a controlling or significant change in the law or
facts has occurred since the submission of the issue to the Court.” Singh v. George Washington
Univ., 383 F. Supp. 2d 99, 101 (D.D.C. 2005) (citations omitted). “[W]here litigants have once
battled for the court’s decision, they should neither be required, nor without good reason
permitted, to battle for it again.” Id. (citations omitted).
Plaintiff does not meet the standard for reconsideration of the Court’s decision on
Defendants’ Motions to Dismiss. Plaintiff’s first argument is the Court should not have
dismissed Count II for retaliation because the supplemental charge, which refers to the alleged
retaliation, is embraced by the Amended Petition. Oral or written evidence providing
substantiation and not merely reiterating what is said in the pleadings is not embraced by the
pleadings. Gorog v. Best Buy Co., Inc., 760 F.3d 787, 791 (8th Cir. 2014). The supplemental
charge is not embraced by the pleadings, because the Amended Petition does not reference the

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supplemental charge, the supplemental charge was not attached to the Amended Petition, nor
does the Amended Petition contain any allegations regarding retaliation.
Plaintiff argues Defendants received notice of the claim before the end of the statute of
limitations and the retaliation claim relates back to the Amended Complaint because she
attempted to set out the claim in the first petition and amended petition. This issue was before the
Court when deciding the Motions to Dismiss; the supplemental charge was provided to the Court
and reviewed by the Court at that time. The Court’s conclusion was correct. There has been no
manifest error or incorrect application of law. Neither the Court, nor Defendants, can assume
Plaintiff wishes to seek every possible Title VII violation contained in an EEOC charge. Instead,
the Court must base its decision on the pleadings filed by Plaintiff. The Court must apply relation
back between the current pleading and the original pleading. See Fed. R. Civ. Pro. 15(c).
Because the supplemental charge was not mentioned in the Amended Petition and the Amended
Petition did not include any allegations regarding retaliatory conduct by Defendants, the Court
could not relate Count II in the current complaint to those in the Amended Petition. Thus, Count
II was properly barred because it was not filed within the period of the statute of limitations.
Because Count II cannot relate back to the Amended Petition, Plaintiff’s argument
Defendants will not be prejudiced by relation back is not relevant. Furthermore, this argument
should not be considered on a motion for reconsideration. It does not concern a manifest error of
law or fact or newly discovered evidence. Plaintiff’s motion for reconsideration will be denied.
In Plaintiff’s Motion, Plaintiff also includes a request for the Court to allow an immediate
appeal to the Eighth Circuit Court of Appeals. The Court will not grant this request. This order
and the order on the Motions to Dismiss do not involve a controlling question of law for which

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there is substantial ground for difference of opinion. See 28 U.S.C. § 1292(b). Additionally, an
immediate appeal will not materially advance the ultimate termination of the litigation. Id.
B.

Motion to Amend

Plaintiff seeks leave of the Court to file a Second Amended Complaint. This would be
Plaintiff’s fourth complaint in this matter. Plaintiff filed the original petition and an amended
petition in state court. Then, in this Court, in response to a motion to dismiss from Defendants,
Plaintiff filed an amended complaint. Plaintiff asserts this request was filed within the deadlines
in the Case Management Order, the Court has not specifically prohibited additional amendments
to the pleadings, and Defendants will not be prejudiced by the amendment.
The Case Management Order allowed the parties to amend their pleadings up to and
including April 22, 2016. The parties agreed this deadline would be extended to April 29, 2016.
Plaintiff filed her Motion to Amend on April 29, 2016.
FRCP 15(a) governs amendment of pleadings. Sherman v. Winco Fireworks, Inc., 532
F.3d 709, 716 (8th Cir. 2008). Under Rule 15(a), when leave to amend is not sought “as a matter
of course,”- i.e., before being served with a responsive pleading or within 20 days after serving
the pleading if no responsive pleading is allowed and trial has not yet been set, see Fed. R. Civ.
P. 15(a)(1) - leave to amend pleadings should be “freely given when justice so requires.” See
Fed. R. Civ. P. 15(a)(2). Even under this standard, however, “[a] district court appropriately
denies the movant leave to amend if ‘there are compelling reasons such as undue delay, bad
faith, or dilatory motive, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the non-moving party, or futility of the amendment.’ ” Sherman, 532
F.3d at 715 (quoting Moses.com Sec., Inc. v. Comprehensive Software Sys., Inc., 406 F.3d 1052,
1065 (8th Cir. 2005); Baptist Health v. Smith, 477 F.3d 540, 544 (8th Cir. 2007).

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Plaintiff’s Second Amended Complaint includes four changes from the previous
complaint.4 Plaintiff removes reference to 42 U.S.C. § 1981, removes GTI from the case caption
and then lists it as a non-party in the allegations, claims her supplemental charge includes
unlawful employment practices through February 2014, and alleges she filed a charge of
discrimination in September 2013. The changes regarding § 1981 and GTI are reflective of the
Court’s orders granting Plaintiff’s motion to strike reference to § 1981 and Plaintiff’s motion to
dismiss GTI. Beyond these changes, Plaintiff includes no new factual allegations, but she
reasserts all of the claims the Court previously dismissed.
The substantive changes in Plaintiff’s Second Amended Complaint, the alleged charge
filed in September 2013, and the extension of the supplemental charge to include incidents in
February 2014, are futile. First, the supplemental charge states the discrimination took place
from January 1, 2009, until August 1, 2013. Further, the supplemental charge cannot contain
allegations regarding conduct that occurred until February 2014, because the charge was
allegedly filed in December 2013. The conduct had not yet occurred for it to be included in the
charge. This change does not affect any of Plaintiff’s claims that were dismissed by this Court.
The new allegation, a charge was filed in September 2013, also does not impact the
Court’s ruling regarding the dismissed claims. Plaintiff asserts a letter she sent to the EEOC in
September 2013, should be considered a charge of discrimination.5 In its order on the Motions to
Dismiss, the Court determined it could not consider the letter because it was not attached to the
Amended Complaint. This decision not to review the letter did not affect the determination some
of Plaintiff’s claims were time-barred and she did not exhaust her administrative remedies for
certain claims.
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Plaintiff also makes minor grammatical changes.
The Court, at this time, does not make a determination whether this letter qualifies as a charge of discrimination.
See Edelman v. Lynchburg College, 535 U.S. 106 (2002).
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Plaintiff’s allegations did not list specific dates for the alleged acts of discrimination.
Instead, she listed the acts which occurred each year, such as, “Beginning in 2009 Plaintiff was
subjected to . . .” ECF No. 60, pg. 4. The only claim which the Court dismissed as time-barred
was her allegation she was written up while male employees involved in the same alleged
improper activity were not written up, which occurred in 2009. This allegation would be timebarred whether the charge of discrimination is considered filed in September 2013, or October
2013.
The Court dismissed the following claims for Plaintiff’s failure to exhaust administrative
remedies: failing to pay Plaintiff bonuses, provide a final paycheck until 2015, and promote
Plaintiff in 2014, terminating Plaintiff, and taking customers away and assigning them to sales
representatives in other territories. These are alleged to have occurred from 2012 to 2015. The
claims concerning the failure to promote Plaintiff in 2014, termination in 2014, and failure to
provide a paycheck until 2015, are clearly not affected by the letter because it was dated
September 20, 2013. Plaintiff’s allegations customers were taken away from her and assigned to
other sales representatives and she was not paid bonuses are not found in the letter. Therefore,
this letter does not change the Court’s ruling this claim must be dismissed for a failure to exhaust
administrative remedies.
Plaintiff’s proposed amendment is futile; the changes do not alter the Court’s decision on
Defendants’ prior Motions to Dismiss and the same claims in Plaintiff’s Second Amended
Complaint would again need to be dismissed. Additionally, allowing this amendment would
prejudice Defendants who have already had to file and brief several motions to dismiss. This
motion is frivolous and is a repeated attempt by Plaintiff to save claims which cannot be saved.
The Court will deny the Motion to Amend.

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Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion to File Second Amended Complaint
[ECF No. 59] is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Revise Memorandum and
Order Dated March 8, 2016 [ECF No. 69] is DENIED.
Dated this 1st Day of August, 2016.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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