Howard v. Shoe Department/Encore

Filing 60

OPINION & ORDER by Magistrate Judge Kimberly E. West granting 38 Motion to Dismiss Certain Claims Contained in Plaintiff's Second Amended Complaint. (adw, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
KYLE HOWARD,
Plaintiff,
v.
SHOE SHOW, INC., d/b/a
Shoe Dept. Encore, a foreign
corporation,
Defendant.

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Case No. CIV-16-269-KEW

OPINION AND ORDER

This matter comes before the Court on Defendant’s Motion to
Dismiss Certain Claims Contained in Plaintiff’s Second Amended
Complaint (Docket Entry #38). On May 24, 2016, Plaintiff commenced
this case in the District Court in and for Pittsburg County,
Oklahoma with the filing of a document entitled “Complaint for
Defamation of Character.”

Plaintiff acted pro se from the outset.

On June 20, 2016, Defendant removed the action to this Court on the
basis of diversity jurisdiction. On September 29, 2016, this Court
conducted

a

telephonic

Scheduling

Conference

with

Plaintiff

appearing pro se and Defendant appearing through counsel of record.
Through the parties’ agreement, a Scheduling Order was put in place
with a jury trial setting of March 21, 2017.

Plaintiff was also

granted leave through the Scheduling Order to amend the Complaint.
On October 20, 2017, Plaintiff filed an Amended Complaint
(entitled

“Second

Amended

discrimination/hostile

work

Complaint”)

alleging

(1)

environment/constructive

gender

discharge

under Title VII; (2) retaliation for engaging in protected activity
in violation of Title VII; (3) defamation of character under the
Securing

the

Protection

of

Our

Enduring

and

Established

Constitutional Heritage Act (“SPEECH Act”), 28 U.S.C. § 4101, et
seq.; (4) negligence supervision, retention, and training; and (5)
intentional infliction of emotional distress.
2016,

Scott

F.

Brockman

entered

an

On November 22,

appearance

on

behalf

of

Plaintiff.
Through the subject Motion, Defendant first contends Plaintiff
failed to exhaust his administrative remedies with regard to a
gender-based disparate treatment claim in Plaintiff’s first cause
of action in the Amended Complaint.
filed

a

Charge

of

On August 21, 2015, Plaintiff

Discrimination

with

the

EEOC,

retaliation on the basis of his sex against Defendant.

alleging
In the

narrative statement on the form, Plaintiff stated that he believed
he had “been discriminated against because of my sex (male) and
retaliated against because I complained, in violation of Title VII
of the 1964 (sic), as amended.”

On October 19, 2015, Plaintiff

filed a second Charge of Discrimination with the EEOC, alleging
retaliation for filing the previous charge with the EEOC.
Title VII claims must be administratively exhausted before
being brought in federal court.

Shikles v. Sprint/United Mgmt.

Co., 426 F.3d 1304, 1317 (10th Cir. 2005) (“It is well-established
that

Title

VII

requires

a

plaintiff

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to

exhaust

his

or

her

administrative remedies before filing suit.” (citations omitted)).
“Exhaustion

of

administrative

remedies

prerequisite’ to suit under Title VII.”

is

a

‘jurisdictional

Jones v. Runyon, 91 F.3d

1398, 1399 (10th Cir. 1996)(citation omitted).

Exhaustion of

administrative remedies is central to Title VII's statutory scheme,
because it provides the EEOC and state deferral agencies with the
first opportunity to investigate discriminatory practices, and
enables

them

to

perform

their

roles

of

obtaining

voluntary

compliance and of promoting conciliatory efforts. See Patterson v.
McLean Credit Union, 491 U.S. 164, 180-181 (1989).
Filing

a

charge

of

discrimination

with

the

EEOC

is

a

jurisdictional prerequisite to the institution of a lawsuit based
on a claim of employment discrimination under Title VII.

See

Alcivar v. Wynne, 268 Fed.Appx. 749, 753 (10th Cir. 2008)(“The
Tenth Circuit has consistently held that ‘exhaustion . . . is a
jurisdictional prerequisite to suit under Title VII—not merely a
condition precedent to suit.’ ”)(quoting Shikles v. Sprint/United
Mgmt. Co., 426 F.3d 1304, 1317 (10th Cir. 2005)); Jones v. Runyon,
91 F.3d 1398, 1399 (10th Cir. 1996)(“Exhaustion of administrative
remedies is a jurisdictional prerequisite to suit under Title
VII.”).

Without such a filing, federal courts lack subject-matter

jurisdiction
statutes.

to

entertain

discrimination

claims

under

that

See Faragalla v. Douglas County Sch. Dist. RE 1, 2011 WL

94540, at 16 (10th Cir.)(“We conclude the district court did not

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err in dismissing Ms. Faragalla's Title VII claim against DCFCE for
lack of subject matter jurisdiction based on her failure to exhaust
administrative remedies.”).
“A plaintiff's claim in federal court is generally limited by
the scope of the administrative investigation that can reasonably
be expected to follow the charge of discrimination submitted to the
EEOC.”

MacKenzie v. City & County of Denver, 414 F.3d 1266, 1274

(10th Cir. 2005).

“We liberally construe charges filed with the

EEOC in determining whether administrative remedies have been
exhausted as to a particular claim.” Jones v. United Parcel Serv.,
Inc., 502 F.3d 1176, 1186 (10th Cir. 2007).

“This more lenient

pleading standard contemplates the fact that administrative charges
of unlawful employment practices are regularly filled out by
employees who do not have the benefit of counsel.”

Mitchell v.

City and County of Denver, 112 Fed.Appx. 662, 667 (10th Cir. 2004).
“[T]he charge must contain facts concerning the discriminatory and
retaliatory actions underlying each claim.” Jones v. United Parcel
Serv., Inc., 502 F.3d at 1186.
It is not entirely clear from the Amended Complaint whether
Plaintiff intended to bring a claim for disparate treatment.

To

the extent that he did so intend, he did not set forth with
sufficient clarity or particularity in the facts of the two charges
he filed with the EEOC to establish such a claim for investigation
by that entity. As a result, he did not exhaust his administrative

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remedies such that this Court possesses the necessary subject
matter jurisdiction over a disparate treatment claim.

Plaintiff’s

charges do establish claims under Title VII for sexual harassment,
hostile work environment, and retaliation on the basis of gender
and for exercising his rights by filing a charge with the EEOC.
The case will proceed on these claims.
Defendant next asserts Plaintiff’s claim for defamation under
the SPEECH Act fails to meet the plausibility standard enunciated
in United States Supreme Court cases of Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662
(2009).

Plaintiff concedes that he does not have a valid claim

under the SPEECH Act.
assert

a

claim

for

However, he also seeks leave to amend and
intentional

interference

with

prospective

business advantage based upon the facts set forth in the Amended
Complaint.
When an amendment is sought after a Scheduling Order has been
entered in a case, the Tenth Circuit requires that a party not only
satisfy the requirements for amendment contained in Fed. R. Civ. P.
15(a), but also the “good cause” requirement of Fed. R. Civ. P.
16(b)(4). Gorsuch, Ltd., B.C. v. Wells Fargo Nat’l Bank Ass’n, 771
F.3d 1230, 1240-41 (10th Cir. 2014).

Rule 16(b)(4) provides that

a scheduling order “may be modified only for good cause and with
the judge's consent.”

The Tenth Circuit established that “[i]n

practice, this standard requires the movant to show the ‘scheduling

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deadlines cannot be met despite [the movant's] diligent efforts.’”
Id. at 1240 citing Pumpco, Inc. v. Schenker Int’l, Inc., 204 F.R.D.
667, 668 (D.Colo. 2001)(quotations omitted). “Rule 16's good cause
requirement may be satisfied, for example, if a plaintiff learns
new information through discovery or if the underlying law has
changed.

Id. at 668-69.

If the plaintiff knew of the underlying

conduct but simply failed to raise tort claims, however, the claims
are barred.”

Id. at 1240 citing Minter v. Prime Equip. Co., 451

F.3d 1196, 1206 (10th Cir. 2006); Federal Ins. Co. v. Gates Learjet
Corp., 823 F.2d 383, 387 (10th Cir. 1987).
Plaintiff has failed to establish “good cause” for allowing
further

amendment

of

the

Complaint

after

Scheduling Order on September 29, 2016.

the

entry

of

the

Plaintiff took advantage

of the deadline to amend the pleadings set forth in that Order with
the filing of the Amended Complaint.

Nothing in the record

indicates that Plaintiff was not aware of the facts supporting an
additional claim for intentional interference with prospective
economic advantage at the time of the filing of the Amended
Complaint.

Indeed, Plaintiff now seeks to amend to add this claim

based upon the facts existing in the Amended Complaint.

With the

lack of a showing of “good cause”, further amendment will not be
permitted.
Defendant

also

seeks

dismissal

of

Plaintiff’s

claim

for

intentional infliction of emotional distress, challenging the

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sufficiency of the facts to support such a claim set forth in the
Amended Complaint.

Plaintiff concedes that this claim should be

dismissed.
IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss
Certain Claims Contained in Plaintiff’s Second Amended Complaint
(Docket Entry #38) is hereby GRANTED.

As a result, Plaintiff’s

claim under Title VII alleging disparate treatment, to the extent
it is asserted, defamation under the SPEECH Act, and intentional
infliction of emotional distress are hereby DISMISSED. Plaintiff’s
request for leave to amend the Amended Complaint to add a claim for
intentional interference with prospective business advantage is
DENIED.
IT IS SO ORDERED this 18th day of January, 2017.

KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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