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Thomason v. Potter

October 9, 2008


The opinion of the court was delivered by: Joel Schneider United States Magistrate Judge

[Doc. Nos. 17, 21]


This matter is before the Court on plaintiff's "Motion to Permit Late Filing of an Amended Complaint." [Doc. Nos. 17, 21]. After the Court received defendant's response [Doc. No. 19] it held oral argument. Because new issues arose at the argument that were not addressed in the parties' Briefs, the Court requested Supplemental Briefs. [Doc. No. 23, 25]. For the reasons to be discussed, plaintiff's motion is GRANTED. The Court will grant plaintiff leave to file his Amended Complaint by October 20, 2008. Plaintiff shall file and serve an Amended Complaint that incorporates the allegations in his original Complaint [Doc. No. 1] and the proposed amendment submitted to the court. [Doc. No. 25].


Plaintiff was employed by defendant, the United States Postal Service ("USPS"), and on June 10, 2006, filed an Administrative Equal Employment Opportunity ("EEO") Complaint. Plaintiff alleged various claims of employment discrimination based upon race, color, sex and retaliation. See Defendant's Brief ("Db"), Doc. No. 19 at 1. On November 20, 2006, the USPS issued a Final Agency Decision ("FAD") dismissing plaintiff's June 10, 2006 EEO Complaint for failure to state a claim upon which relief could be granted. Id. Plaintiff filed his complaint in this action on February 5, 2007, and alleged he was discriminated against because of his race, color, sex, and retaliated against because of his prior EEO activity. Complaint at ¶3. Plaintiff also alleged defendant's discriminatory tactics "continued throughout his employment and continue to the present." Id. In addition, plaintiff alleged he was singled out as a target for dismissal. Id. at ¶3a.

On April 21, 2007, plaintiff filed a new EEO Complaint alleging employment discrimination and hostile work environment claims for the time period of June 2006 through April 21, 2007. Db at 1-2. Plaintiff was "removed" from employment with the USPS on May 11, 2007. Db at 2. On May 31, 2007, plaintiff's removal was treated as an amendment to his April 21, 2007 EEO Complaint. On November 29, 2007, the USPS issued a FAD dismissing plaintiff's April 21, 2007 charge for failure to state a claim upon which relief could be granted. Id. This FAD was served on plaintiff and his counsel on December 3, 2007. Id. at 3. On February 1, 2008, this Court issued a Scheduling Order setting a deadline of February 28, 2008 for the parties to seek amendments to the pleadings. See Doc. No. 14 at ¶1. However, plaintiff did not file his motion to amend until May 14, 2008. [Doc. No. 17]. The proposed amendment alleges that plaintiff filed a complaint with the EEOC about the necessity of a route inspection which the EEOC ordered defendant to undertake. See Amended Complaint at ¶2, Doc. No. 18. The proposed amendment also alleges that "[a]s a result of the EEOC involvement and the ordering of a route inspection, management retaliated against the Plaintiff." Id. at ¶3. Plaintiff alleges the disciplinary complaints "ended up with the Plaintiff's employment being terminated. Management made it known following the EEOC findings that Plaintiff was a target for dismissal. Plaintiff was in fact dismissed." Id.

Defendant opposes plaintiff's motion on two grounds. Defendant first argues plaintiff's motion was filed late and should be denied. Defendant next argues that plaintiff's amendment is futile because plaintiff did not file his motion to amend within 90 days of December 3, 2007, the date he received the November 29, 2007 FAD. See 42 U.S.C. §2000e-16c. Plaintiff responds by arguing that pursuant to Fed. R. Civ. P. 15(c) his proposed new claims relate back to his timely filed Complaint and therefore they are not time-barred. Defendant contends that since plaintiff's firing was a "discrete act" the relation back provision of Rule 15(c) does not apply.


Unless there is 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 or futility of the proposed amendment, leave to amend should be freely given. Foman v. Davis, 371 U.S. 178, 182 (1962); Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d Cir. 2002). The Court rejects defendant's argument that plaintiff's amendment should be denied because it was filed late. There is no question that plaintiff's motion was filed after the February 28, 2008 deadline set forth in the February 1, 2008 Scheduling Order. However, the mere fact that plaintiff's motion could have been filed earlier is not dispositive. See Adams v. Gould Inc., 739 F.2d 858, 869 (3d Cir. 1984). Leave to amend should only be denied because of undue delay if the delay causes prejudice to the non-moving party. Cincerella v. Egg Harbor Police Department, C.A. No. 06-1183 (RBK), 2007 WL 2682965, at *2 (D.N.J. Sept. 6, 2007)(citations omitted). The Court finds that defendant will not be prejudiced by plaintiff's late amendment. The Court's Scheduling Orders will assure that defendant has a fair and adequate opportunity to defend its interests in the case. In addition, defendant cannot claim it was surprised by the proposed amendment since defendant admits the issue was discussed earlier this year and defendant participated in the EEO proceeding relating to plaintiff's termination.

The Court also denies defendant's argument that plaintiff's amendment is futile. In determining whether an amendment is futile "the district court applies the same standard of legal sufficiency as applies under Rule 12(b)(6)."

In re Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1434 (3d Cir. 1997)(citation omitted). The standard of review for a 12(b)(6) motion "requires the court to accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the non-moving party." Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989).

Defendant argues that plaintiff's termination claim is futile because it is barred by the limitations set forth in 42 U.S.C. §2000e-16c. This statue provides that an employee must file a civil action within 90 days of receipt of a FAD. Defendant is correct that plaintiff's motion to amend was not filed within ninety (90) days of December 3, 2007, the date plaintiff received the November 29, 2007 FAD. However, the Court finds that plaintiff's amendment relates back to the filing of his initial Complaint and therefore is timely.

Pursuant to Fed. R. Civ. P. 15(c)(1)(B), an amendment to a pleading relates back to the date of the original pleading when "the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out-or attempted to be set out-in the original pleading." Plaintiff seeks to amend his complaint to add the claim that she was terminated as a result of his "EEOC involvement and the ordering of a route inspection, ...." See Propose Amended Complaint at ¶3. This occurrence arose directly out of the alleged harassment referred to in plaintiff's original Complaint. In addition, plaintiff's Complaint alleged she was targeted for dismissal. The proposed amendment addresses plaintiff's dismissal which was referred to in the Complaint. The dismissal plainly relates to plaintiff's original allegation that she was discriminated and retaliated against. The Court finds that the proposed amendment plainly arises out of the conduct, transaction or occurrence referred to in the Complaint and therefore relates back to the original filing date.

The decision in Spicer v. Villanova University, C.A. No. 06-1411, 2006 WL 3486465 (E.D.Pa. Dec. 1, 2006), is instructive. In that case plaintiff's Complaint alleged the defendant committed various acts of race and age discrimination. The proposed Amended Complaint, filed more than ninety (90) days after plaintiff received a right to sue letter from the EEOC, alleged disability discrimination. Like this case, the defendant in Spicer opposed the amendment on timeliness grounds. Nevertheless, the court in Spicer held that plaintiff's amendment related back to his original Complaint. The court noted that although the details between the different claims varied, "the factual core of the two complaints is the same." Id. at *2. In addition, the court noted, "the cause of action in the two complaints is likewise the same; a suit to redress specific wrongful employment decisions and the plaintiff's wrongful termination." Id. The ...

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