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)

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