Garcia v. LaHood et al
Filing
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OPINION AND ORDER by Judge John E Dowdell Defendants' Motion to Strike Improperly Filed Amended Complaint (Doc. 49) is granted. The Amended Complaint (Doc. 43) and the additional exhibits thereto (Doc. 46) are hereby stricken. The Court a ccepts, adopts, and affirms Judge Cleary's R&R (Doc. 35). The defendants' Motion for Summary Judgment (Doc. 9) is granted, and this action is hereby dismissed. This action is terminated. A separate Judgment will be entered forthwith. ; striking/terminating deadline(s)/Hearing(s); striking/withdrawing document(s); accepting 35 Report and Recommendation; finding as moot 44 Motion for Leave to File Document(s); granting 49 Motion to Strike Document(s); finding as moot 54 Motion in Limine; granting 9 Motion for Summary Judgment (Re: 46 Exhibit(s) in Support of Document(s), 43 Amended Complaint, 1 Complaint ) (Documents Terminated: 46 Exhibit(s) in Support of Document(s), 43 Amended Complaint ) (SAS, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
JESSE GARCIA, JR.,
Plaintiff,
v.
RAY H. LAHOOD, MICHAEL P. HUERTA,
Defendants.
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Case No. 12-CV-019-JED-PJC
OPINION AND ORDER
I.
Filings at Issue
The following filings are before the Court for determination.
Report and Recommendation on Motion for Summary Judgment: Defendants moved for
summary judgment (Doc. 9). A number of filings relate to that motion: plaintiff’s Response
(Doc. 16); defendants’ Reply (Doc. 18); plaintiff’s additional Response (Doc. 27); defendants’
additional Reply (Doc. 28); the Report and Recommendation (“R&R”) of Judge Paul J. Cleary
regarding the Motion for Summary Judgment (Doc. 35); plaintiff’s Objections to the R&R (Doc.
41); and defendants’ Response to the Objections (Doc. 42).1
Motion to Amend Complaint: After the entry of the R&R and plaintiff’s filing of
Objections thereto, plaintiff filed a Motion for Leave to File Amended Complaint and Add
Defendant (Doc. 44). Without awaiting any ruling by the Court, and without leave of the Court,
plaintiff filed an Amended Complaint (Doc. 43) purporting to add as a defendant Jacqueline A.
1
Judge Cleary converted the defendants’ motion - which was styled as a motion to dismiss
for failure to timely exhaust administrative remedies - to a motion for summary judgment
because plaintiff responded to the dismissal motion with numerous exhibits which would require
consideration of materials outside of the pleadings. (See Doc. 26). This prompted the Court to
afford the parties with the opportunity to supplement their submissions for purposes of the
summary judgment record. (Id.). Accordingly, a number of the parties’ filings were docketed
and construed differently than their titles suggest.
Berrien, Chair of the Equal Employment Opportunity Commission. The day after filing the
Amended Complaint with attachments, plaintiff filed an additional 144 pages of exhibits (Doc.
46). Defendants filed a Response (Doc. 48) to the request to amend and moved to strike (Doc.
49) the Amended Complaint. Plaintiff never responded to the motion to strike.
The Court has reviewed all of the relevant filings, including the parties’ evidentiary
submissions and plaintiff’s Objections to the R&R, and has considered the applicable law. After
careful consideration and de novo review, the Court agrees with Judge Cleary that plaintiff’s
claims should be dismissed and that summary judgment is appropriate. Further, the plaintiff’s
proposed amendment is inexplicably late, as it was filed only after the proceedings on the
summary judgment motion and the entry of the R&R, and the proposed amendment would be
futile in that it would not cure the fundamental problem of plaintiff’s failure to timely exhaust his
administrative remedies as required by law.
II.
The Report and Recommendation on the Summary Judgment Motion
A.
Applicable Standard of Review
A district court may refer a dispositive matter to a magistrate judge for report and
recommendation. 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b). A party wishing to object to
the magistrate’s report and recommendation shall file objections within 14 days. See Fed. R.
Civ. P. 72(b). The district judge must then “determine de novo any part of the magistrate judge’s
disposition that has been properly objected to . . . [and] may accept, reject, or modify the
recommended disposition; receive further evidence; or return the matter to the magistrate judge
with instructions.” Fed. R. Civ. P. 72(b)(3). “De novo review is required after a party makes
timely written objections to a magistrate's report. The district court must consider the actual
2
testimony or other evidence in the record and not merely review the magistrate's report and
recommendations.” Northington v. Marin, 102 F.3d 1564, 1570 (10th Cir. 1996).
B.
General Background
Plaintiff was employed as an engineering technician with the Federal Aviation
Administration (“FAA”). Plaintiff asserts that he was employed from August 2007 until he was
terminated on November 4, 2008, for failing to properly report that he left a field work site for
the day. (Doc. 16). He further contends that he attempted to call in as ill, but “due to a problem
apparently with his cell phone, the call/text was never completed and the report was not
received.” (Id. at 2). After his termination, plaintiff ultimately filed two administrative Equal
Employment Opportunity (“EEO”) complaints, one in 2009 the other in 2011, both of which
were dismissed.
Plaintiff’s Complaint in this Court alleges that plaintiff “[f]aced discrimination and
harassment at the work sites, was spit on by team lead[,] [p]revented from seeing doctor on
several occasions, injured on work place and made to work dispite [sic] accident report filing,
lost wages.” (Doc. 1). The Complaint references a cause of action under the Americans with
Disabilities Act for “prevention of seeing doctor for refill of medication,” and plaintiff asserts
that he had overtime hours taken from his last paycheck and was asked to repay overtime in
2009, after he was terminated.
(Id.).
As the basis for his claims of “discrimination and
harassment,” plaintiff asserts that his supervisor spit tobacco on plaintiff and spread rumors
tarnishing plaintiff’s reputation. (Id. at 2).
Defendants moved to dismiss for failure to timely exhaust administrative remedies, and
plaintiff responded with numerous materials outside of the pleadings. As noted, this resulted in
Judge Cleary’s conversion of the dismissal motion to a summary judgment motion and permitted
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supplementation of the record and arguments. (Doc. 26). Judge Cleary conducted two hearings
on the motion, thoroughly considered the evidence, and entered his R&R, recommending that the
defendants’ summary judgment motion be granted and that plaintiff’s claims be dismissed for
failure to timely comply with applicable administrative requirements. (Doc. 35). Plaintiff filed
Objections asserting that his failure to comply with the administrative requirements was the
result of being misinformed by EEO personnel about how to proceed on a complaint. (Doc. 41).
C.
Administrative Requirements for Federal Employees Alleging Discrimination
Pursuant to federal regulations, federal employees like plaintiff must pursue informal
resolution of any discrimination complaint before filing a formal complaint.
29 C.F.R. §
1614.105 et seq. The first step in that administrative process requires a consultation with an
EEO counselor at the agency that employed the plaintiff (here, the FAA) “within 45 days of the
date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days
of the effective date of the action.” Id., § 1614.105(a)(1). The requirement applies whether the
employee’s claim is premised on alleged race, color, religion, sex, national origin, age, or
disability discrimination. Id.
Following unsatisfactory conclusion of the informal consultation with a counselor, an
aggrieved federal employee may file an administrative complaint with the allegedly
discriminating agency within 15 days of receipt of notice that the counseling process has ended
without resolution. See id., §§ 1614.105(d), 1614.106. There are a number of grounds upon
which a federal agency, such as the FAA, may dismiss a complaint, including the following: the
complaint fails to state a claim of discrimination; the complaint asserts a claim that has already
been decided; or the complaint fails to comply with the 45-day time limit contained in §
1614.105. See id., § 1614.107(a).
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If an administrative complaint is dismissed by the federal agency, the complainant may
file an administrative appeal (to the Office of Federal Operations at the EEOC in Washington,
D.C.), which must be filed within 30 days of receipt of the agency decision dismissing the
complaint.
Id., §§ 1614.402, 1614.403(a).
In addition to or in the alternative to an
administrative appeal, a complainant may file a civil action in federal district court, and such
action must be filed within 90 days of receipt of the agency’s dismissal of the complaint (if the
complainant does not take an administrative appeal) or within 90 days of receipt of the Office of
Federal Operations’ final decision on an appeal. Id., § 1614.407(a), (c).
D.
Plaintiff’s EEO Complaints
Plaintiff filed two administrative EEO complaints based upon alleged conduct between
April 2008 and February 2009:
1.
The 2009 Complaint
Plaintiff initiated the EEO process on the day of his termination, by an online filing on
November 4, 2008. (See Doc. 16 at 13). He was promptly contacted by an EEO counselor with
the FAA and, following a failure of plaintiff and the counselor to informally resolve plaintiff’s
issues regarding his federal employment, plaintiff filed his formal administrative complaint in
January, 2009. (Doc. 16 at 9). In that complaint, plaintiff alleged that, in May 2008, his team
lead accidentally spit dip on plaintiff a number of times, and plaintiff asked the team lead to
“watch where he spits.” After plaintiff confronted the team lead, the lead allegedly complained
about plaintiff to others and allegedly informed others that he hoped plaintiff would be fired.
Plaintiff also asserted that he had become ill on October 23, 2008, and “due to cell phone issues
my request for sick leave was never received, and I was terminated.” (Id. at 10-11). Plaintiff
did not identify the reason (race, color, religion, national origin, sex, age, etc.) upon which he
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believed he was discriminated (see id. at 9), and as far as motive for his termination, plaintiff
merely asserted that his firing for missing work without reporting “seems like a cover-up” (id. at
11). His complaint referenced “harassment / discrimination,” without any additional detail
regarding the basis for such assertion. (Id. at 9-12).
On February 11, 2009, the Department of Transportation’s Office of Civil Rights
dismissed the 2009 complaint for “fail[ure] to state a claim of discrimination based on any of the
protected classes covered by the relevant EEO statutes.” (Id. at 22). The record evidence
establishes that plaintiff received the agency’s final decision to dismiss the 2009 complaint by
February 19, 2009, a fact which plaintiff does not dispute. (See id. at 30). That decision very
clearly and specifically informed plaintiff of his appeal options and deadlines:
If you are dissatisfied with this final agency decision, you have the following
appeal rights:
Within 30 calendar days of your receipt of this final decision, you have the
right to appeal this decision to the Director, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. (EEOC Form 573, Notice of Appeal/Petition,
enclosed for this purpose.)
Within 90 calendar days of your receipt of this action, you may file a civil
suit in an appropriate U.S. District Court.
(Doc. 16 at 23).
Because plaintiff received the final agency decision on February 19, 2009, he had to file
his appeal to the EEOC Office of Federal Operations on or before Monday, March 23, 2009. He
did not send a notice of appeal until May 9, 2009, 79 days after receipt of the final agency
decision and well beyond the 30-day deadline of which he was advised.
As a result, on
September 21, 2009, the EEOC dismissed the appeal as untimely pursuant to 29 C.F.R. §
1614.403(c). At that time, plaintiff was advised that he could seek reconsideration or file a civil
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action in federal district court. He did neither, and the 2009 administrative complaint process
concluded without further action.
2.
The 2011 Complaint
Plaintiff filed a second administrative complaint on January 11, 2011. (See Doc. 16 at
50). The 2011 complaint was based partly on the same facts asserted in the 2009 complaint, but
added allegations that plaintiff was discriminated based upon race, national origin, and mental
disability. According to plaintiff, the alleged discrimination was evidenced by being forced to
work in April and May 2008 despite having suffered an injury, being spit on by his team lead in
May 2008, being terminated on November 4, 2008, and the FAA refusing to pay plaintiff on his
last paycheck for overtime he had allegedly earned. Plaintiff also asserted that, in or around
February 2009, the FAA notified him that he was expected to repay 30 hours of overtime pay.
(Id.). The 2011 complaint was dismissed because plaintiff did not initiate contact with an FAA
EEO counselor within 45 days of the date of the alleged discriminatory actions. For the new acts
alleged in the 2011 complaint, plaintiff did not contact an EEO counselor until September 3,
2010, well beyond 45 days after the last allegedly discriminatory action asserted in the 2011
complaint (in February 2009). (Id.). To the extent that the 2011 complaint included allegations
that were previously raised in the 2009 complaint, those were dismissed because they had
already been dismissed by the prior agency determination. (Id. at 51). See § 1614.107(a)
(requiring that the agency dismiss claims that have been decided by the agency or the Office of
Federal Operations). Following an administrative appeal from that dismissal, the Office of
Federal Operations affirmed dismissal in October 2011. Plaintiff then initiated this civil action
on January 17, 2012, over three years after his employment at the FAA was terminated.
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E.
Plaintiff’s Failure to Timely Exhaust Administrative Remedies
It is undisputed that all of the allegedly discriminatory conduct occurred between April
2008 and November, 2008, with a single additional incident alleged to have occurred in February
2009.2 With respect to the conduct asserted through November 2008, plaintiff was required to
visit with an EEO counselor at the FAA within 45 days. 29 C.F.R. § 1614.105(a)(1). Plaintiff
did have contact with an EEO counselor at the FAA in November and December, 2008 and he
did file his 2009 complaint but, as noted, that complaint failed to identify any claim to protected
status and thus failed to state a claim for discrimination and was dismissed. That dismissal was
final, and plaintiff is precluded from maintaining an action based upon the conduct alleged in
that 2009 complaint, because he did not timely file any action in the federal district court on the
final agency decision on that complaint. See 29 C.F.R. § 1614.407(a), (c). (civil action must be
filed in district court within 90 days of receipt of the final agency action).
With respect to the 2008 and February 2009 acts which plaintiff first raised in the 2011
complaint, plaintiff was required to initiate the EEO pre-filing counseling process within 45
days, or no later than mid-March, 2009. He failed to contact an EEO counselor with respect to
those new allegations of discrimination until September 2010, almost 18 months after the 45 day
deadline. 29 C.F.R. § 1614.105(a)(1). Compliance with the 45 day administrative requirement
is a prerequisite to filing a federal suit. See Mayberry v. Environmental Protection Agency, 366
Fed. App’x 907, 908 (10th Cir. Feb. 23, 2010). Courts within this Circuit have determined that
2
While his administrative complaint asserted the 2009 demand for overtime repayment
occurred in February 2009, plaintiff indicated in the summary judgment briefing that the
overtime issue arose on January 27, 2009. (See Doc. 27 at 2). At the same time, plaintiff asserts
that his EEO complaint filed on January 11, 2011 was “based on the events of 2008.” (Doc. 16
at 6). Whether the last alleged act of discrimination occurred in 2008 or in January or February,
2009, plaintiff’s contact of the FAA EEO counselor with respect to the new allegations first
raised in the 2011 complaint was not initiated within the 45 day time-frame.
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failure to consult an EEO counselor in a timely manner may subject a plaintiff’s claims to
dismissal. See, e.g., Beene v. Delaney, 70 Fed. App’x. 486, 490 (10th Cir. Jun. 27, 2003)
(affirming summary judgment dismissal where federal employee failed to timely exhaust by
compliance with the 45-day requirement of § 1614.105(a)(1)); see also Dimsdale v. Cino, 2006
WL 1997174 at *2 (W.D. Okla. Jul. 13, 2006), aff’d, 217 Fed. App’x 743 (10th Cir. 2007)
(failure to consult an EEO counselor in a timely manner subjects plaintiff’s claims to dismissal).
Plaintiff’s Objections do not alter the Court’s opinion of the undisputed, clear evidence
reflecting that plaintiff failed to timely exhaust administrative remedies and pursue his claims of
discrimination. Plaintiff cites his contacts with the EEO counselor in November and December
2008 as satisfying the pre-filing counseling requirement for the allegations in the 2011
complaint. (See Doc. 41 at 1-2). Those contacts with the FAA’s EEO counselor were part of the
process relating to the 2009 complaint, and it is undisputed that plaintiff did not timely pursue
any civil action based on that 2009 complaint. Those allegations from the 2009 complaint are
accordingly time-barred. See 29 C.F.R. § 1614.407(a)(1).
In his Objections, plaintiff admits that his “filing of appeals and paperwork [were made]
in an untimely manner” (Doc. 41 at 5), but he alleges that the untimeliness was caused by
inaccurate information provided by the EEO counselor at the FAA in 2008 and by EEOC
personnel in 2009. Plaintiff has made numerous contradictory assertions regarding the alleged
inaccurate information he claims he was provided, and the evidence does not support his
arguments. For example, plaintiff argues that the EEO counselor in 2008 did not aid him or give
him information “until after Plaintiff’s [2009] Complaint had been dismissed” and that the
counselor “misinformed” plaintiff about the process. (See Doc. 41 at 2). The record does not
support these claims. In fact, the exhibits that plaintiff provided in his summary judgment
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briefing establish the opposite. (See, e.g., Doc. 27 at 12, 14-15). Those exhibits include a
Memorandum of “Notice of Final Interview and Right to File a Discrimination Complaint” from
the EEO counselor, dated December 4, 2008, which plaintiff signed and acknowledged receiving
on December 22, 2008 (before he filed his formal 2009 complaint in January, 2009). In that
Memorandum, the EEO Counselor specifically informed plaintiff that, because an informal
resolution could not be reached through the counseling process, plaintiff was then entitled to file
a “discrimination complaint based on race, color, religion, sex, national origin, physical or
mental handicap, age, reprisal and/or sexual orientation.” (Id. at 15). The EEO counselor’s
Memorandum provided specific information regarding the requirements and deadline for
plaintiff to file a complaint and provided a copy of the form Complaint of Discrimination. (See
id.). Plaintiff subsequently completed the complaint form and submitted it, with a date of
January 4, 2009. (Doc. 16 at 9-12).3
In his Objections, plaintiff also asserts that, after the 2009 complaint was dismissed on
February 11, 2009, plaintiff went to the EEOC building in Oklahoma City and was provided
inaccurate information concerning the date by which he could appeal. (Doc. 41 at 2 [alleging
vaguely that he was informed he “had 90 days,” so plaintiff “started working on” his appeal, and
asserting that he was not informed until sometime after April 2009 that “he only had 45 days to
file his appeal or amended complaint.”]; see also id. at 38). He also alleges, without specificity,
that a number of other EEOC officials provided him inaccurate information. (Id. at 3). These
allegations are directly contradicted by plaintiff’s own filings and exhibits.
Plaintiff was
expressly informed, in writing, by the February 11, 2009 agency decision dismissing his 2009
3
The complaint is actually dated January 4, 2008. However, in light of the fact that
plaintiff was not terminated until November 2008, it is clear that the year should have been 2009.
The parties stipulated that the correct date was January, 2009. (See Doc. 25; Doc. 35 at fn.3).
10
complaint, that he had two options to appeal: either file an appeal within 30 days or file a
federal civil action within 90 days of his receipt of the February 11, 2009 letter. (Doc. 41 at 1213). He did neither on a timely basis.
Contrary to plaintiff’s arguments in his Objections, the undisputed evidence establishes
that plaintiff ignored the specific instructions regarding appeal options, as set forth in the
February 11, 2009 agency decision, and instead went to the EEOC office in Oklahoma City.
That choice does not excuse his failure to act in a timely manner with respect to the 2009
complaint, nor does it explain his failure to timely initiate the pre-filing EEO counseling process
at the FAA as to the additional allegations made in the 2011 complaint. Plaintiff’s argument that
he was improperly informed in April 2009 by an EEOC officer in Oklahoma City is also
contradicted by the statement he signed on April 22, 2009 at the Oklahoma City EEOC office,
which stated that “[Potential Charging Party] is a federal employee.
[He] was counseled
regarding federal EEO complaint process. [He] refer [sic] to appeal agency decision within
timeline.” (Id. at 38, emphasis added). This document plainly reflects that he was advised (as he
had been previously notified) that, as a federal employee, he had to abide by the process
applicable to federal employee complaints of discrimination, rather than the more generallyapplicable EEOC process. (See id.).
Plaintiff also asserts that, “[a]fter [his] attempt to reopen his original complaint, [he]
contacted various Agencies and Departments seeking information on why his case had been
dismissed and ways in which to reopen his case. It was then that [he] contacted a Ms. Jo-Marie
Bonwell, an EEO Counselor who explained that his complaint had been dismissed due to
Plaintiff not stating a claim for discrimination.” (Doc. 41 at 3, emphasis added). The record
reveals that the contact with the second EEO counselor (Ms. Bonwell) occurred in September
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2010. (See Doc. 16 at 6, 43-47). The assertion by plaintiff that it was only “then” in September
2010 that he had been advised “that his complaint had been dismissed due to . . . not stating a
claim for discrimination” is again directly controverted by the agency’s February 11, 2009
decision 19 months before. That decision explained that his 2009 complaint was dismissed
because he had “failed to state a claim of discrimination based on any of the protected classes
covered by the relevant EEO statutes.” (Doc. 16 at 22).
There is no dispute that plaintiff received the February 11, 2009 agency decision
dismissing his complaint in February, 2009. Indeed, he alleges that he took action after receiving
notice of the dismissal of his complaint (albeit the action he took was not the proper action under
the applicable law and did not comply with the instructions for appeal, of which he was advised
in that agency decision). (See Doc. 41 at 2 [“After the . . . Complaint was dismissed on Feb. 11,
2009, Plaintiff went to the EEOC building in Oklahoma City to seek further guidance and
advice.”]). While plaintiff may have taken other actions (going to the Oklahoma City general
EEOC office and writing correspondence to United States Senator James M. Inhofe), plaintiff
failed to follow the applicable federal regulations and instructions contained in the February 11,
2009 agency decision, which required that any appeal should be addressed – not to the Oklahoma
City EEOC office - but to the Office of Federal Operations in Washington, D.C.
In summary, plaintiff made only one timely complaint – the 2009 complaint – which was
filed promptly after his termination from employment with the FAA. That complaint was
dismissed for failure to state a claim of discrimination, and plaintiff had 90 days, from the date of
plaintiff’s receipt of the February 11, 2009 dismissal of that complaint, to file a civil action in
federal district court. He did not. His attempt in September 2010 to restart the process all over
12
again by contacting an EEO counselor with the FAA was too late, as the last alleged
discriminatory conduct was over a year and a half before, in early 2009.
The Court has reviewed all of plaintiff’s arguments, objections, and the entirety of the
record in this case and agrees with Judge Cleary’s R&R and the recommendation that summary
judgment be granted to the defendants and the case be dismissed, as there is no genuine dispute
as to any material fact and defendants are entitled to judgment as a matter of law, due to
plaintiff’s failure to timely comply with administrative requirements. Fed. R. Civ. P. 56(a).
III.
Plaintiff’s Motion to Amend
Plaintiff filed a motion to amend his Complaint to add the Chair of the EEOC as a
defendant and to purportedly add additional details, elaborate on the original Complaint, and “to
respond to other issues raised by the Defendants in their motion to dismiss.” (See Doc. 44).
Without waiting for a ruling on his motion to amend, plaintiff filed an Amended Complaint
(Doc. 43), and later filed exhibits thereto (Doc. 46). Defendants then responded to the motion
and moved to strike the prematurely filed Amended Complaint. (Doc. 48, 49).
The filing of the Amended Complaint was premature. Because the defendants filed an
Answer on July 6, 2012, Fed. R. Civ. P. 15(a)(1) is inapplicable, and plaintiff could file an
amended complaint “only with the opposing party’s written consent or the court’s leave,” which
he did not have. Fed. R. Civ. P. 15(a)(2). Accordingly, the Amended Complaint shall be
stricken.
Plaintiff’s motion to amend should also be denied. While Fed. R. Civ. P. 15(a)(2)
requires that a “court should freely give leave when justice so requires,” denial of leave to amend
is appropriate where there has been “undue delay, undue prejudice to the opposing party, bad
faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or
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futility of amendment.” See Duncan v. Manager, Dept. of Safety, City & County of Denver, 397
F.3d 1300, 1315 (10th Cir. 2005) (quoting Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th
Cir.1993)). “It is well settled in this circuit that untimeliness alone is a sufficient reason to deny
leave to amend,” and prejudice to the opposing party need not also be shown. Frank, 3 F.3d at
1365-66 (collecting cases).
The plaintiff’s request to amend was filed after extraordinary and undue delay. The
motion to amend was filed 14 months after the initial complaint; seven months after defendants
filed their summary judgment motion; four months after Judge Cleary held an initial hearing on
the summary judgment motion; and almost two months after Judge Cleary conducted the final
hearing on the summary judgment motion and entered the R&R. Plaintiff’s request to amend to
“respond to . . . issues raised . . . in [defendants’] motion to dismiss” is too late. As the Court
stated at the outset, that dismissal motion was converted to a motion for summary judgment, and
plaintiff was permitted to supplement his briefing and the record as a result. He filed three briefs
regarding the issues raised in the defendants’ motion (see Doc. 16, 27 and 41), and there is no
basis for allowing his “response” time to be extended without limit. That motion was the subject
of two hearings before Judge Cleary and was the subject of the R&R.
Plaintiff has offered no explanation whatsoever for his failure to timely seek amendment.
“Where a party seeking amendment knows or should have known of the facts upon which the
proposed amendment is based but fails to include them in the original complaint, the motion to
amend is subject to denial.” Franks, 3 F.3d at 1364 (quoting Las Vegas Ice & Storage Co. v.
Far West Bank, 893 F.2d 1182, 1185 (10th Cir. 1990)). Plaintiff’s employment with the FAA
was terminated in November of 2008, and his request over four years later to add facts or parties
is inexplicably late.
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Moreover, the proposed amendment is futile. “A court properly may deny a motion for
leave to amend as futile when the proposed amended complaint would be subject to dismissal for
any reason, including that the amendment would not survive a motion for summary judgment.”
E. Spire Communications, Inc. v. New Mexico Pub. Reg. Comm’n, 392 F.3d 1204, 1211 (10th
Cir. 2004) (citation omitted). Plaintiff’s proposed amendment in no way alters the determination
that plaintiff’s claims should be dismissed for his failure to timely comply with the applicable
federal regulations regarding exhaustion of his claims. Plaintiff’s proposed addition of the Chair
of the EEOC as a defendant also fails because “there is no private right of action against the
EEOC for claims that the EEOC and its officers should be held responsible for failure to
investigate employment-related claims adequately.” See, e.g. Dowling v. United States, 2012
WL 1987266 (D. Colo. June 4, 2012).
IT IS THEREFORE ORDERED that defendants’ Motion to Strike Improperly Filed
Amended Complaint (Doc. 49) is granted.
The Amended Complaint (Doc. 43) and the
additional exhibits thereto (Doc. 46) are hereby stricken.
IT IS FURTHER ORDERED that the Court accepts, adopts, and affirms Judge Cleary’s
R&R (Doc. 35). The defendants’ Motion for Summary Judgment (Doc. 9) is granted, and this
action is hereby dismissed. This action is terminated. A separate Judgment will be entered
forthwith.
IT IS SO ORDERED this 28th day of June, 2013.
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