United States District Court, D. Nebraska
M. Bazis United States Magistrate Judge
matter is before the Court on Plaintiff's Motion for
Leave to Amend Complaint. (Filing No. 30.) For the
reasons explained below, the motion will be denied.
August 1, 2017, Plaintiff filed this “action for
damages and injunctive relief” against David J.
Shulkin, M.D., Secretary of Veteran Affairs
(“Defendant”), alleging that Defendant
discriminated against her based upon her sex in violation of
Title VII of the Civil Rights Act of 1964. Plaintiff also
alleged Defendant discriminated against her based on
disability in violation of the Rehabilitation Act of 1973.
Plaintiff filed an unopposed motion for leave to amend her
complaint on October 30, 2017 (Filing No. 15), which
was granted (Filing No. 16). Plaintiff's amended
complaint was filed on October 31, 2017. (Filing No.
November 14, 2017, Defendant filed a motion for partial
summary judgment. (Filing No. 18). Defendant argued
that all discrete discriminatory acts alleged in the amended
complaint that occurred before August 2, 2014 should be
dismissed as untimely. Defendant asserted that Plaintiff
failed to exhaust her administrative remedies as to those
claims. Plaintiff opposed the motion, asserting that the
allegations of discrimination should not be considered
discrete acts, but rather as continuing, ongoing violations.
Thus, according to Plaintiff, the claims were not
December 18, 2017, this Court granted Defendant's motion,
finding that Plaintiff's allegations amounted to discrete
acts of discrimination (Filing No. 25) and that
claims occurring before August 2, 2014 were untimely. In its
order granting the motion, the Court noted that Plaintiff did
not contest Defendant's assertion that Plaintiff was not
asserting a harassment/hostile work environment claim.
(Filing No. 25 at CM/ECF p. 7.)
filed the instant motion to amend on February 2, 2018,
seeking to make the following changes to her amended
complaint: (1) amend paragraph 27 to remove a comma and add
“including subjecting her to a hostile work
environment” and (2) amend paragraph 28 to remove a
comma and add “including subjecting her to a hostile
work environment.” (Filing No. 30.)
Essentially, Plaintiff seeks to add a hostile work
environment claim. Defendant opposes the
Federal Rule of Civil Procedure 15, the Court should
“freely give leave” to amend a pleading
“when justice so requires.” Fed. R. Civ. P.
15. Nevertheless, a party does not have an absolute
right to amend and “denial of leave to amend may be
justified by undue delay, bad faith on the part of the moving
party, futility of the amendment or unfair prejudice to the
opposing party.” Amrine v. Brooks, 522 F.3d
823, 833 (8th Cir. 2008) (quotation and citation omitted).
Whether to grant a motion for leave to amend is within the
sound discretion of the district court. Popoalii v. Corr.
Med. Servs, 512 F.3d 488, 497 (8th Cir. 2008).
maintains that Plaintiff's most recent motion to amend
should be denied because Plaintiff seeks to include a hostile
work environment claim that has been known to Plaintiff since
her administrative filings. Defendant points out that
Plaintiff did not file suit based upon an alleged hostile
work environment claim, and did not even mention such a claim
until after the ruling on Defendant's motion for partial
summary judgment. Defendant argues that Plaintiff's
proposed hostile work environment claim is actually an
improper attempt to recover on the untimely discrete acts
that were previously dismissed by the Court. Defendant
further maintains that her proposed hostile work environment
claim is futile, as it fails to allege facts sufficient to
overcome a motion to dismiss.
leave to amend should ordinarily be freely granted, the Court
finds that the motion to amend should be denied under the
circumstances presented here. Plaintiff is seeking leave to
amend in order to introduce a new theory of liability.
However, the factual basis for Plaintiff's proposed
hostile work environment claim has been known to Plaintiff
since the administrative proceedings. Yet, Plaintiff waited
until after this Court granted Defendant's motion for
partial summary judgment to assert this theory of recovery,
despite the fact that she had previously been given leave to
file an amended complaint.
well-stablished that “[p]ost-dismissal motions to amend
are disfavored.” Morrison Enterprises, LLC v. Dravo
Corp., 638 F.3d 594, 610 (8th Cir. 2011). The
Eighth Circuit Court of Appeals has determined that
“[m]uch of the value of summary judgment . . . would be
dissipated if a party were free to rely on one theory in an
attempt to defeat summary judgment and then, should that
theory prove unsound, come back . . . and fight on the basis
of some other theory.” Id. at 610 (quotation
omitted). Plaintiff has offered no excuse for the delay in
seeking to raise a hostile work environment claim or any
legitimate justification for why amendment should be
permitted at this point. Plaintiff did not even file a reply
brief in support of her motion.
this Court previously found that alleged discrete acts of
discrimination that occurred before August 2, 2014 are
untimely. It appears that Plaintiff, thorough her motion to
amend, is attempting to circumvent this Court's ruling.
Untimely discrete acts of discrimination have been considered
for a hostile work environment claim. SeeTademe
v. Saint Cloud State University,328 F.3d 982
(8th Cir. 2003). However, in this instance,
Plaintiff's attempt to assert a hostile work environment
claim is simply an effort to recover on time-barred discrete
acts. In other words, Plaintiff is attempting to avoid
statutory filing requirements by claiming that the untimely
discrete acts give rise to a hostile work environment claim.
Royal v. Potter,416 F.Supp.2d 442, 452 (S.D. W.Va.
2006) (“[A] district court's duty . . . is to
determine whether the plaintiff has provided evidence of an
actionable hostile work environment which may include an
otherwise discrete act or has made a claim for hostile work
environment when in actuality the plaintiff is attempting to
recover on time barred discrete acts”). See also