Thompson v. CHI Health Good Samaritan Hospital

Filing 47

MEMORANDUM AND ORDER that the Plaintiff's motion to file an amended complaint, (Filing No. 21 ), is granted. Plaintiff's Amended Complaint, a copy of which is attached to his motion, shall be filed on or before October 3, 2016. Ordered by Magistrate Judge Cheryl R. Zwart. (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RODNEY THOMPSON,
Plaintiff,

8:16CV160

vs.
MEMORANDUM AND ORDER
CHI HEALTH GOOD SAMARITAN
HOSPITAL,
Defendant.
This matter is before the court on Plaintiff’s motion for leave to file an amended
complaint. (Filing No. 21). For the following reasons, the motion will be granted.

BACKGROUND
Plaintiff filed a complaint against CHI Health Good Samaritan Hospital (“Good
Samaritan”) on March 29, 2016, alleging a violation of the Fair Labor Standards Act and
seeking unpaid wages pursuant to the Nebraska Wage Payment and Collection Act.
(Filing No. 1-1). The case was removed to federal court on April 13, 2016. (Filing No.
1).
During the parties’ planning conference, counsel for plaintiff informed counsel for
Good Samaritan that Plaintiff intended to file an amended complaint once he received the
right-to-sue letters from the EEOC and the NEOC. (Filing No. 27, at CM/ECF p. 2). The
parties thereafter filed their 26(f) report and on June 10, 2016, the court entered its Final
Progression Order consistent with the parties’ report. (See Filing Nos. 13, 15). On July
6, 2016, the undersigned held a telephonic conference with the parties.

During this

conference, counsel for Plaintiff orally requested an extension of the deadline to move to
amend the pleadings as he had not yet received the right-to-sue letters. The court granted
the motion and extended the deadline for moving to amend the pleadings to July 29,

2016.

(Filing No. 19).

On July 29, 2016, Plaintiff timely filed the instant motion.

(Filing No. 21).

ANALYSIS
Leave to amend “shall be freely given when justice so requires.” Fed. R. Civ. P.
15(a).

“[A]bsent a good reason for denial—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 amendment—leave to amend should be
granted.” Kozohorsky v. Harmon, 332 F.3d 1141, 1144 (8th Cir. 2003). But there is no
absolute right to amend a pleading. Hammer v. City of Osage Beach, MO, 318 F.3d 832,
844 (8th Cir. 2003).

The court will deny a motion for leave to amend as futile if the

Plaintiff’s proposed complaint fails to state a claim under the pleading standard described
in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), thereby rendering the complaint
subject to dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Zutz v.
Nelson, 601 F.3d 842, 850-51 (8th Cir. 2010).
A complaint must contain sufficient facts which, if accepted as true, state a claim
for relief that is plausible on its face.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Twombly, 550 U.S. at 570).

The court should not “incorporate some general

and formal level of evidentiary proof into the ‘plausibility’ requirement of Iqbal and
Twombly.” Whitney v. Guys, 700 F.3d 1118, 1128-29 (8th Cir. 2012). The question at
this preliminary stage is not whether the plaintiff might be able to prove his claim, but
whether the has “adequately asserted facts (as contrasted with naked legal conclusions) to
support” those claims. Whitney, 700 F.3d at 1128-29.
Plaintiff’s proposed amended complaint alleges several new claims, including a
claim alleging the defendant violated Title VII of the Civil Rights Act and the Nebraska
Fair Employment Act.

Specifically Plaintiff alleges he was discriminated against “for not

conforming to sex stereotypes about how men are expected to present themselves” and
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that he suffered disparate treatment because he was a homosexual male. (Filing No. 21-1,
at CM/ECF p. 4, 5).

Good Samaritan claims that Thompson’s Title VII claim is futile

because non-conformance to a sexual stereotype is not a recognized type of
discrimination and that Thompson otherwise fails to plead facts establishing a prima facie
case for sex discrimination.
Title VII prohibits an employer from “discriminat[ing] against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of .
. . sex[.]” 42 U.S.C. § 2000e-2(a)(1). The United States Supreme Court as well as the
Eighth Circuit have recognized that sex stereotyping can violate Title VII when it
influences employment decisions.

See Price Waterhouse v. Hopkins, 490 U.S. 228

(1989); Lewis v. Heartland Inns of Am., LLC, 591 F.3d 1033 (8th Cir. 2010). To state a
sex stereotyping claim, the plaintiff must plead facts showing his non-conformance to sex
stereotypes was a motivation for the adverse employment action.

Lewis, 591 F.3d at

1041. Evidence of this motivation may be shown through statements made by the
employer that directly concern the employee’s gender and non-conformance with
stereotypes or by the timing of the adverse employment action in relation to when the
plaintiff began showing non-stereotypical behaviors.

See Jespersen v. Harrah’s

Operating Co., Inc., 444 F.3d 1104, 1113 (9th Cir. 2006).
However, neither Nebraska law nor Title VII encompass discrimination based
upon sexual orientation.

See Neb. Rev. Stat. §§ 48-1114 et seq; see also Hively v. Ivy

Tech Community College, No. 15-1720, 2016 WL 4039703 (7th Cir. July 28, 2016);
Dingle v. Bimbo Bakeries USA/Entenmann’s, 624 Fed. Appx. 57 (2d Cir. 2015);;
Brandon v. Sage Corp., 808 F.3d 266, 270 n.2 (5th Cir. 2015); Kalich v. AT&T Mobility,
LLC, 679 F.3d 464 (6th Cir. 2012); Wrightson v. Pizza Hut of Am., Inc., 99 F.3d 138,
142 (4th Cir. 1996); but see Baldwin v Foxx, Appeal No. 0120133080, 2015 WL
4397641 (EEOC 7/15/15) (EEOC opinion holding that discrimination on the basis of
sexual orientation is encompassed within Title VII).

While a significant amount of case

law following Price included the discrimination of gay or lesbian plaintiffs, these types of

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claims are only successful if the plaintiffs can carve out discrimination based upon sexual
stereotypes from discrimination based upon their sexual orientation. Hively, 2016 WL
4039703 at *5.
Plaintiff’s proposed amended complaint alleges a sex discrimination claim on the
basis of sex stereotype and states the following:
 He is a male who does not conform to sexual stereotype regarding how men
are present themselves in physical appearance, actions, and behaviors
(filing no. 21-1, ¶ 10 at CM/ECF p. 2);
 He was subjected to discriminatory and stereotypical language and treated
poorly after appearing at a social event with a male rather than a female,1
(id. ¶ 11, 12 at CM/ECF pp. 2–3);
 His employment was terminated shortly after these events;
 His performance was satisfactory during his
defendant (id. ¶ 9 at CM/ECF p. 2).

employment

with the

Accepting these facts as true, the court finds Plaintiff’s proposed amended complaint
states a claim for recovery based on sexual stereotyping.
Good Samaritan also claims it would be prejudiced if Thompson were allowed to
amend and add his COBRA and defamation claims.
Regarding prejudice, the court should consider whether the amendment “requires
re-opening discovery, additional costs, and substantial changes to the course of the
case[.]” White Cap. Constr. Supply, Inc. v. Tighton Fastner & Supply Corp., 8:08cv264,
2010 WL 3636263 (D. Neb. Sept. 9, 2010). Because of the liberal amendment policy of
Rule 15, any existing prejudice must outweigh plaintiff’s right to have the new facts and

1

The complaint alleges he appeared at a social event with his same sex partner.
While this allegation could be attempting to raise a discrimination claim based on sexual
orientation—which does not exist—the underlying fact (appearing at events with a male
instead of a female guest) may also support a sexual stereotype claim.
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claims heard on the merits. See Naylor v. Rotech Healthcare, Inc., 679 F. Supp. 2d 505,
509 (D. Vt. 2009); Jeter v. Montgomery County, 480 F Supp. 2d 1293 (MD Ala. 2007);
Assam v. Deer Park Spring Water, 163 FRD 400 (ED NY 1995); UNR Industries, Inc. v.
Continental Ins. Co., 623 F.Supp 1319 (ND Ill. 1985) (superseded on other grounds).

This case was originally filed in March of this year.

The final progression order

was entered on June 10 and discovery began thereafter. And Thompson’s motion for
leave to amend was timely filed according to the Court’s July 6th order. Good Samaritan
does not show, nor can the court see, how it would be unduly prejudiced by allowing the
addition of new claims at this early stage in the proceedings.

Accordingly,
IT IS ORDERED:
1)

Plaintiff’s motion to file an amended complaint, (Filing No. 21), is granted;

2)

Plaintiff’s Amended Complaint, a copy of which is attached to his motion,
shall be filed on or before October 3, 2016.

Dated this 27th day of September, 2016
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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