United States District Court, D. Nebraska
JENNIFER M. KING, an Individual; Plaintiff,
CATHOLIC HEALTH INITIATIVES, a NonProfit Foreign Corporation Operating in Nebraska; Defendant.
MICHAEL D. NELSON UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on Plaintiff's Motion for
Leave to File Amended Complaint (Filing No. 40).
Defendant, Catholic Health Initiatives,  opposes the
motion, except as to Plaintiff's proposed amendment
naming CHI Nebraska d/b/a CHI Health as a party defendant.
(Filing No. 42).
filed this motion on February 15, 2019,  which was the
Court-imposed deadline for parties to file motions to amend
pleadings and add parties. (Filing No. 20).
Initially, Plaintiff's proposed amendments included
naming CHI Nebraska d/b/a CHI Health as a party defendant and
adding hostile work environment claims and gender
discrimination claims under Title VII and the Nebraska Fair
Employment Practice Act (NFEPA). In Plaintiff's reply
brief, however, she agreed to voluntarily withdraw her
proposed state law claims under the NFEPA. (Filing No. 43 at
p. 1). Therefore, Plaintiff only seeks to amend her Complaint
to name CHI Nebraska d/b/a CHI Health as a party defendant,
add a separately-pled claim for gender discrimination under
Title VII, and to amend her damages and prayer for relief.
(Filing No. 40 at pp. 3-20; Filing No. 43 at ¶ 1).
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(a).
Nevertheless, a party does not have an absolute right to
amend, and “[a] district court may deny leave to amend
if there are compelling reasons such as undue delay, bad
faith, or dilatory motive, repeated failure to cure
deficiencies by amendments previously allowed, undue
prejudice to the non-moving party, or futility of the
amendment.” Reuter v. Jax Ltd., Inc., 711 F.3d
918, 922 (8th Cir. 2013)(internal quotation and citation
omitted). Defendant opposes Plaintiff's proposed
additional claim for gender discrimination under Title VII as
futile and unduly prejudicial. (Filing No. 42 at p. 1).
asserts that Plaintiff's proposed Title VII claim for
gender discrimination is futile because she failed to exhaust
her administrative remedies. A plaintiff must exhaust
administrative remedies before asserting claims under Title
VII. See Cottrill v. MFA, Inc., 443 F.3d 629, 634-35
(8th Cir. 2006). This requires a plaintiff to “timely
file an administrative charge with the EEOC.”
Id. at 634 (internal quotation marks and citation
omitted). “The information contained in an EEOC charge
must be sufficient to give the employer notice of the subject
matter of the charge and identify generally the basis for a
claim, but it need not specifically articulate the precise
claim or set forth all the evidence an employee may choose to
later present in court.” Wallace v. DTG Operations,
Inc., 442 F.3d 1112, 1123 (8th Cir. 2006). “A
plaintiff may seek relief for any discrimination that grows
out of or is like or reasonably related to the substance of
the allegations in the administrative charge.”
Dorsey v. Pinnacle Automation Co., 278 F.3d 830, 838
(8th Cir. 2002)(quoting Nichols v. Am. Nat'l Ins.
Co., 154 F.3d 875, 886-87 (8th Cir. 1998)); see also
Parisi v. Boeing Co., 400 F.3d 583, 585 (8th Cir.
2005)(“[C]laims of employment discrimination in the
complaint may be as broad as the scope of the EEOC
investigation which reasonably could be expected to result
from the administrative charge.”). However,
“there is a difference between liberally reading a
claim which lacks specificity, and inventing, ex
nihilo, a claim which simply was not made.”
Cottrill, 443 F.3d at 634 (internal quotation marks
and citation omitted).
review, the Court finds that Plaintiff's proposed claim
for gender discrimination under Title VII is reasonably
related to the substance of her administrative charge. In
Plaintiff's Charge of Discrimination to the NEOC and
EEOC, she selected the box for discrimination on the basis of
sex. In stating the particulars of the charge, Plaintiff
stated she was female, was sexually harassed by a male
subordinate, complained about such harassment, and believed
she “was discriminated against due to my sex when no
action was taken, ” which led to her constructive
discharge. Plaintiff further stated she believes she was
“discriminated against on the basis of sex, in
violation of Title VII” in that she was repeatedly
subjected to sexual harassment on a daily basis, and that no
action was taken on her complaints based on her sex. (Filing
No. 42-1 at p. 1). Liberally reading Plaintiff's Charge,
the Court finds it is sufficient to give Defendant notice of
the subject matter of, and to generally identify the basis
for, her claim for Title VII gender discrimination. See
Dorsey, 278 F.3d at 838. Accordingly, the Court
finds that Plaintiff's proposed amendment adding a gender
discrimination claim under Title VII is not futile for
failure to exhaust administrative remedies.
Defendant will not be unduly prejudiced by the addition of
the new Title VII claim, as it arises out of the same factual
circumstances set forth in Plaintiff's administrative
charge and original complaint. Plaintiff's proposed Title
VII gender discrimination claim very generally alleges that
she was qualified for her job, suffered adverse employment
actions, and that she was discriminated against based upon
her gender. (Filing No. 40 at p. 13). In Plaintiff's
original Complaint, she alleged a claim for “sexual
harassment as a form of discrimination” under Title
VII, which is not materially different from her amended
proposed claim. (Filing No. 1 at p. 9; Filing
No. 40 at p. 13). Moreover, pursuant to the operative
progression order, discovery in this case is still ongoing,
and at least as of the time the Plaintiff filed this motion,
the parties had not yet taken any depositions. Defendants
will have plenty of time to explore the basis for
Plaintiff's Title VII gender discrimination claim prior
to trial. In consideration of the above, and considering that
leave to amend should be freely given, the Court finds
Plaintiff should be granted leave to amend her Complaint, as
limited by her reply brief. Accordingly, IT IS
ORDERED that Plaintiff's Motion for Leave to
File Amended Complaint (Filing No. 40) is granted, in part.
Plaintiff is granted leave to file an amended complaint that
names CHI Nebraska d/b/a CHI Health as a party defendant,
makes other minor revisions to which Defendant did not
object, and adds a separate count for gender discrimination
under Title VII, on or before April 19,
 Defendant states it is improperly
named in the Complaint and asserts its proper name is
“CHI Nebraska d/b/a CHI Health.” (Filing No.
42 at p. 1).
 Plaintiff is correct in noting that
the Order's February 15, 2018, date was scrivener's
error. (Filing No. 41 at p. 2 n. 1).
 As argued by Defendant, it appears
that Plaintiff's proposed claims under NFEPA would be
futile as time-barred. (Filing No. 42 at pp. 4-5).
 “Denial of a motion for leave to
amend on the basis of futility ‘means the district
court has reached the legal conclusion that the amended
complaint could not withstand a motion to dismiss under [Fed.
R. Civ. P. 12(b)(6)].'” Zutz v. Nelson,
601 F.3d 842, 850 (8th Cir. 2010) (quoting Cornelia I.
Crowell GST Trust v. Possis Med., Inc., 519 F.3d 778,
782 (8th Cir. 2008)). Although the Court is determining that
Plaintiff should at least be granted an opportunity to raise
her Title VII sex discrimination claim in an amended
complaint, the Court is not foreclosing ...