Zisumbo v. Convergys
Filing
21
MEMORANDUM DECISION AND ORDER granting 17 Motion to Amend Complaint. Plaintiff may file her amended complaint no later than June 29, 2015. Signed by Magistrate Judge Dustin B. Pead on 6/22/2015. (las)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, NORTHERN DIVISION
HOPE ZISUMBO,
MEMORANDUM DECISION
Plaintiff,
Case No. 1:14-cv-00134-RJS-DBP
v.
District Judge Robert J. Shelby
CONVERGYS CORP., a corporation,
Magistrate Judge Dustin B. Pead
Defendant.
INTRODUCTION
This matter was referred to the Court under 28 U.S.C. § 636(b)(1)(A). (Dkt. 14.) Plaintiff
Hope Zisumbo alleges that Defendant Convergys Corp. violated the Family Medical Leave Act
(“FMLA”) when it terminated Plaintiff in 2013. The matter is presently before the Court on
Plaintiff’s “Motion for Leave to Amend Complaint.” (Dkt. 17.)
ANALYSIS
Plaintiff seeks leave to amend her complaint to remove her indemnification cause of action
and to add allegations and FMLA claims against John Patton II, Ryan Mitchell, and Adriana
Woldberg. (“Proposed Defendants”). (Dkt. 17.) Plaintiff asserts that she only learned the
Proposed Defendants’ identities approximately two weeks before she filed her motion to amend.
Convergys argues that the proposed amendment is brought in bad faith “solely to harass and
oppress” Proposed Defendants. (Dkt. 18 at 2.) Convergys also argues that Plaintiff’s proposed
amendment is futile because she failed to plead that the Proposed Defendants were on notice that
Plaintiff might qualify for FMLA benefits.
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I.
Amending the complaint
The Court has discretion to grant an amendment pursuant to Rule 15(a). Minter v. Prime
Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006). “The Court should freely give leave when
justice so requires.” Fed. R. Civ. P. 15(a)(2). The Tenth Circuit has admonished courts that
generally a case should “be decided on its merits rather than on procedural niceties.” Minter at
1204. Nonetheless, amendments may be denied for a number of reasons, including “undue delay,
bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of
the amendment, futility of amendment, etc.” Id. (quoting Foman v. Davis, 371 U.S. 178 (1962)).
a. Bad faith and undue prejudice
Convergys’ first appears to show bad faith or undue prejudice. Convergys has not established
either. Convergys suggests that Plaintiff only seeks to add individual employees as defendants in
an effort to “subject them to the stresses and costs of the court system” without benefit to
Plaintiff. (Dkt.18 at 2.) This conclusory statement does not establish bad faith. Convergys then
faults Plaintiff for not demonstrating that she would be prejudiced by denial of the amendment
because Convergys has the ability to pay any judgment in this case. Convergys misunderstands
the parties’ relative burdens in this analysis. Convergys bears the burden of establishing any
undue prejudice. Convergys’ discussion about the identity of the entity that will pay a judgment
or settlement is a practical matter that does not change the outcome here.
b. Futility
Convergys has not demonstrated that the additional claims would be futile. Convergys argues
that Plaintiff failed to plead that the Proposed Defendants were on notice that Plaintiff desired
FMLA leave. In the Tenth Circuit, FMLA rights are triggered when an employer is on notice that
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the employee may qualify for FMLA benefits. Tate v. Farmland Indus., Inc., 268 F.3d 989, 997
(10th Cir. 2001) (“An employee need not expressly assert rights under the FMLA or even
mention the FMLA.”). The Court must assume the facts alleged in the proposed amended
complaint and all reasonable inferences in favor of Plaintiff. Doing so, the Court concludes that
the amendment is not futile. Plaintiff alleges that she was terminated expressly “for medical
reasons” and because she was “unavailable due to illness.” Plaintiff also alleges that the
Proposed Defendants collectively made the decision to terminate her. It can be inferred from
these facts that the Proposed Defendants knew that Plaintiff was so ill she could not work
because that is the basis upon which they fired her. This provides adequate notice that Plaintiff
might qualify for FMLA benefits. While discovery may show otherwise, the amendment does
not appear futile. 1
Based on the foregoing, the Court GRANTS Plaintiff’s motion for leave to amend. Plaintiff
may file her amended complaint no later than June 29, 2015.
ORDER
For the reasons set forth above, the Court:
GRANTS Plaintiff’s Motion for Leave to Amend Complaint. (Dkt. 17.) Plaintiff may file
her amended complaint no later than June 29, 2015.
IT IS SO ORDERED.
Dated this 22nd day of June, 2015.
By the Court:
Dustin B. Pead
United States Magistrate Judge
1
The circumstances here are far removed from Howard v. Garage Door Group, Inc., where
the employee was available to work when she was terminated and never requested leave. 136 F.
App'x 108, 109 (10th Cir. 2005) (unpublished).
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