HAROLD M. NYANJOM, Plaintiff,
HAWKER BEECHCRAFT, INC., Defendant.
ORDER ON MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT
KENNETH G. GALE, United States Magistrate Judge
Plaintiff files the present Motion for Leave to File First Amended Complaint for “greater specificity and [to] assert additional clarification about the nature of his legal claim (as determined by KHRC and EEOC), that Defendant . . . violated employment laws relative to ADA, by discriminating against him due to his disability, denying him reasonable accommodation and not offering him alternative jobs were [sic] available.” (Doc. 64-1, at 1.) In reality, Plaintiff seeks to allege new causes of action under Executive Order 11246, Section 503 and 504 of the Rehabilitation Act, Title VII of the Civil Rights Act of 1964, the Employee Retirement Income Security Act of 1974 (“ERISA”) the Vietnam Era Veterans Readjustment Assistance Act of 1974 (“VEVRAA”), state law claims for violation of the Kansas Act Against Discrimination, wrongful and/or retaliatory discharge, willful and malicious injury, and malicious prosecution. (See Doc. 64-1, at 2-3.) The Court DENIES Plaintiff’s motion in its entirety as set forth below.
Plaintiff, who was born in 1968, was formerly employed by Defendant. That employment was terminated on June 1, 2011.
Plaintiff, who represents himself pro se, filed the present case in the Southern District of New York alleging violations of Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Americans with Disabilities Act (“ADA”) by his former employer in the termination of his employment, failure to accommodate his alleged disability, unequal terms and conditions of employment, and retaliation. (See generally Doc. 2.) The case was transferred to the District of Kansas on December 11, 2012, because the alleged wrongful employment practices occurred in Wichita. (Doc. 7.)
Defendant filed its bankruptcy Petition in the Bankruptcy Court of the Southern District of New York on May 3, 2012. Pursuant to the Order of that Court, all Proofs of Claims were required to be filed by September 14, 2012. (Doc. 29.) The “Stipulation and Agreed Order Modifying the Plan Injunction with Respect to Certain Former Employee Claimant” filed in the Bankruptcy Court on May 17, 2013, had the limited purpose of allowing Plaintiff to liquidate the claims then pending in the present case. (Doc. 29-1.) The stipulation does not authorize additional or new claims against Defendant. (Id.)
Federal Rule 15(a) provides, in pertinent part, that “a party may amend its pleading only with the opposing party’s written consent or the court’s leave.” In the absence of any apparent or declared reason, such as undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of amendment, leave to amend should be freely given, as required by the federal rule. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993).
A court is justified in denying a motion to amend as futile if the proposed amendment could not withstand a motion to dismiss or otherwise fails to state a claim. Nkemakolam v. St. John’s Military School, 890 F.Supp.2d 1260, 1261-62 (D. Kan. 2012); Ketchum v. Cruz, 961 F.2d 916, 920 (10th Cir. 1992); see also 6 Wright, Miller & Kane, Federal Practice and Procedure § 1487 at 642 (1990). In light of United States Supreme Court precedent, the Tenth Circuit has restated the standard for ruling on motions to dismiss under Fed.R.Civ.P. 12(b)(6), and now looks at what is described as a “plausibility” standard. Nkemakolam, 890 F.Supp.2d at 1262. As this Court explained the plausibility standard in Nkemakolam,
the Supreme Court has recently ‘clarified’ this standard, stating that ‘to withstand a motion to dismiss, a complaint must contain enough allegations of fact ‘to state a claim to relief that is plausible on its face.’ [Robbins v. Oklahoma, 519 F.3d 1242], at 1247 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Specifically, ‘[f]actual allegations must be enough to raise a right to relief above the speculative level, ’ Twombly, 550 U.S. at 555, 127 S.Ct. 1955, so that ‘[t]he allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief.’ Robbins, 519 F.3d at 1247. Under this standard, ‘a plaintiff must nudge his claims across the line from conceivable to plausible in order to survive a motion to dismiss.’ Smith [ v. U.S.], 561 F.3d  at 1098 [(10th Cir.2009) ]. Therefore, a plaintiff must ‘frame a ‘complaint with enough factual matter (taken as true) to suggest’ that he or she is entitled to relief.' Robbins, 519 F.3d at 1247 (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955).
Id. Within this context, the Court will review each of Plaintiff’s requested amendments.
A. Vietnam Era Veterans’s Readjustment Assistant Act.
Plaintiff’s memorandum indicates that he is seeks to bring this action pursuant to the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, among other legal authority. (Doc. 64-1, at 3.) It is uncontested that Plaintiff is not a United States military veteran. Also, having been born in 1968, Plaintiff could not have served during the Vietnam War. Simply stated, Plaintiff is not protected by this statute. Further, this Act does not provide a private and independent cause of action. See Ledbetter v. City of Topeka, 112 F.Supp.2d 1239, 1242 (D. Kan. 2000). Plaintiff’s request to amend his Complaint relating to VEVRAA is denied as futile. B. Executive Order 11246.
Plaintiff’s initial memorandum makes several references to his action being brought pursuant to Executive Order 11246. (Doc. 64-1, at 2, 3, 7, 16.) This Executive Order “requires that federal contractors provide in all nonexempted government contracts a clause that, among other things, prohibits contractors from discriminating on the basis of race and requires the contractors to take ‘affirmative action’ to ensure that employees are hired without regard to race.” Riggs v. Boeing Co., No 98-2091-JWL, 1999 WL 233285, at *1 (D. Kan. March 4, 1999). See also Executive Order 11246, reprinted in 42 U.S.C. § 2000e note at 24–29 (1994). The Riggs decision held that “virtually every federal court to consider the issue has held that ...