McDaniel v. McDonald

Filing 52

ORDER Denying plaintiff's 26 Motion for summary judgment and 50 Motion for leave to amend complaint. Signed by Judge Jennifer A. Dorsey on 12/19/2016. (Copies have been distributed pursuant to the NEF - AF)

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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 Essie McDaniel, 5 2:15-cv-00003-JAD-PAL Plaintiff 6 v. 7 Secretary Robert A. McDonald, 8 Order Denying Plaintiff’s Motion for Summary Judgment and Motion for Leave to Amend Defendant [ECF Nos. 26, 50] 9 10 Pro se plaintiff Essie McDaniel sues Veterans Affairs Secretary Robert A. McDonald in his 11 official capacity for retaliating against her—in violation of Title VII—after she reported 12 discrimination to an EEO counselor while she was employed as a Human Resources Specialist with 13 the VA. McDaniel moves for summary judgment and for leave to amend her complaint. Because 14 she has failed to make the required showing for either request, I deny her motions.1 15 16 Discussion A. Motion for summary judgment 17 I denied McDaniel’s previous motion for summary judgment (and motion for default 18 judgment) because McDonald had not yet been properly served. In doing so, I cautioned McDaniel 19 that, if she chose to re-file her summary-judgment motion, the applicable procedural rule is Rule 56 20 of the Federal Rules of Civil Procedure, not 29 CFR 1614.2 21 McDaniel again moves for summary judgment, requesting that the court find that she has 22 made “a prima facie case of illegal discrimination practice of reprisal with regard to her non- 23 selection for the two vacancies at issue in this matter.”3 She provides a list of facts, which she claims 24 are “undisputed” and entitle her to relief under federal criminal perjury statutes, the Civil Service 25 1 I find these motions suitable for disposition without oral argument. L.R. 78-1. 27 2 ECF No. 18 at 4. 28 3 Id. at 1. 26 Page 1 of 3 1 Reform Act, the EEOC, the “MSPB,” 29 CFR 1614, and FRCP 56(d).4 She provides no argument or 2 law to support her contention that these “undisputed facts” entitle her to summary judgment under 3 FRCP 56(d), nor does she provide the applicable standard for her Title VII claim or any argument to 4 show that she has met it. She appears to argue that the interviewers for the job that she was not 5 selected for made contradictory statements.5 This is wholly insufficient to entitle McDaniel to 6 summary judgment, even on the limited issue of whether she has made a prima facie showing of 7 retaliation. 8 I therefore deny McDaniel’s motion for summary judgment without prejudice. If McDaniel 9 chooses to refile her motion, she should keep the standards governing her Title VII retaliation claim 10 in mind. To establish a prima facie case of retaliation, McDaniel must show that: (1) she engaged in 11 protected activity, (2) she suffered an adverse employment action, and (3) there was a causal link 12 between her protected activity and the adverse employment action.6 If McDaniel makes this 13 showing, the burden then shifts to McDonald to articulate a legitimate, non-retaliatory reason for the 14 department’s actions.7 If McDonald offers a non-retaliatory explanation, McDaniel “bears the 15 ultimate burden of submitting evidence indicating that the [department’s] proffered reason is merely 16 a pretext for a retaliatory motive.”8 17 B. Motion for leave to amend 18 McDaniel requests leave to amend her complaint to add “significant factual and procedural 19 developments that have occurred since the original complaint filed.”9 She then recites the additional 20 facts that she wishes to include in her amendment. I deny McDaniel’s motion for leave to amend 21 22 4 Id. at 10–12. 5 ECF No. 26 at 2–9. 6 Poland v. Chertoff, 494 F.3d 1174, 1179–80 (9th Cir. 2007). 7 Porter v. California Dept. of Corrections, 419 F.3d 885, 894 (9th Cir. 2004). 27 8 Id. 28 9 ECF No. 50 at 1. 23 24 25 26 Page 2 of 3 1 without prejudice. McDaniel is cautioned that, if she chooses to file a new motion for leave to 2 amend, she must comply with Local Rule 15-1 and attach the proposed amended complaint to the 3 motion. The proposed amended complaint must be complete in and of itself without reference to the 4 initial complaint. Thus, McDaniel cannot simply indicate which allegations she wishes to add; she 5 must incorporate these amendments into her proposed amended complaint so that it is complete in 6 itself. McDaniel is also cautioned that, because the deadline for amendment has passed,10 she will 7 8 need to show both good cause to reopen the amendment period and excusable neglect for the delay.11 9 Courts consider four factors when ruling on a motion for leave to amend after the deadline for 10 amendment in the scheduling order has passed: (1) the danger of prejudice to the non-moving party; 11 (2) the length of the delay and potential impact on judicial proceedings; (3) the reason for the delay; 12 including whether it was within the reasonable control of the movant; and (4) whether the moving 13 party’s conduct was in good faith.”12 Additionally, leave to amend will be denied if the proposed 14 amendment would be futile.13 15 Conclusion 16 17 Accordingly, IT IS HEREBY ORDERED that McDaniel’s motion for summary judgment and motion for leave to amend [ECF Nos. 26, 50] are DENIED. 18 Dated this 19th day of December, 2016. 19 _________________________________ _____________________ _ __________ __ __ Jennifer A. Dorsey er A Dorsey or y United States District Judge d States D ate District Judge ud ud 20 21 22 23 24 25 10 The deadline to amend pleadings was December 1, 2016. ECF No. 40. McDaniel filed her motion for leave to amend on December 13, 2016. 11 See FED. R. CIV. PROC. 6(b)(1)(B). 27 12 Pioneer Inv., Servs., Co. v. Brunswick Assocs., Ltd., P’ship, 507 U.S. 380, 395 (1993). 28 13 Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004). 26 Page 3 of 3

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