MEMORANDUM AND ORDER
K. Gary Sebelius U.S. Magistrate Judge
This matter comes before the court upon Plaintiff Steven Mackley’s Motion for Leave to Amend Complaint (ECF No. 11). For the reasons stated below, the motion is granted as to Mr. Mackley’s amended Count I and Count II. However, the undersigned recommends to the District Judge that the motion as it pertains to allowing Mr. Mackley to pursue the amended Count III be denied.
I. Relevant Background
On December 10, 2012, Mr. Mackley filed a complaint against TW Telecom Holdings, Inc., in the United States District Court for the District of Kansas alleging gender discrimination and retaliation under Title VII of the Civil Rights Act of 1964 and age discrimination under the Age Discrimination in Employment Act (the “ADEA”). On February 15, 2013, TW Telecom filed a motion to dismiss for failure to state a claim upon which relief may be granted pursuant to Fed.R.Civ.P. 12(b)(6) and for failing to state each claim in a separate count pursuant to Fed.R.Civ.P. 10. As part of Mr. Mackley’s response, he requested leave to amend his complaint in the alternative to dismissal if the court had concerns about the complaint’s sufficiency.
On April 10, 2013, U.S. District Judge Sam A. Crow granted TW Telecom’s motion to dismiss and dismissed the complaint without prejudice. Judge Crow found that the complaint failed to give TW Telecom adequate notice of the specific discriminatory conduct giving rise to the claims and failed to plead sufficient facts to state a plausible claim under Title VII or the ADEA. Judge Crow granted Mr. Mackley up to and including May 3, 2013, to file a motion to amend in compliance with D. Kan. Rule 15.1. On May 3, 2013, Mr. Mackley filed the present Motion to Amend (ECF No. 11). The parties have fully briefed the matter, and the court is prepared to rule.
Fed. R. Civ. P. 15 governs the procedure for a party to amend a pleading. At this juncture of the case, Mr. Mackley may only amend his complaint by consent of the opposing party or by leave of the court. When leave of the court is required, the court may refuse to grant leave “only [upon] a showing of 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 should freely be given when justice so requires.
TW Telecom opposes the present motion on the grounds that the proposed amended complaint is futile for various reasons. Namely, TW Telecom argues that it would be: (1) untimely and barred by the applicable statute of limitations, (2) fails to state a claim, and (3) fails to comply with Fed.R.Civ.P. 10(b). Further, TW Telecom argues that Mr. Mackley failed to timely exhaust administrative remedies for several of his amended claims.
A court may deny a motion to amend on the basis of futility “if the ‘amendment would not withstand a motion to dismiss or otherwise fails to state a claim upon which relief may be granted.’” When determining whether an amendment is futile, the court analyzes the proposed amendment as if it were before the court on a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Therefore, the court will only deny an amendment on the basis of futility when factual allegations fail to “state a claim to relief that is plausible on its face, ” or when an issue of law is dispositive. The party opposing the proposed amendment bears the burden of establishing its futility.
TW Telecom asserts that the proposed amended complaint is futile because it is time-barred by the statute of limitations for employment discrimination claims under Title VII and the ADEA. Specifically, TW Telecom argues that the proposed amended complaint would not relate back to the original complaint pursuant to Fed.R.Civ.P. 15(c) and also that equitable tolling does not apply.
Filing a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) or an authorized state agency is required before filing a discrimination lawsuit alleging violations of Title VII and the ADEA. Under Title VII and the ADEA, a charge of discrimination must be filed within three hundred days of the alleged unlawful discrimination if made to an authorized state agency. It is only after the claimant receives a right-to-sue letter from the administrative agency that he or she can initiate a lawsuit. Once the right-to-sue letter is received, the plaintiff must file suit within a ninety-day period. An action filed after this ninety-day period will be deemed untimely.
In August 2012, Mr. Mackley signed and filed a charge of discrimination with the Missouri Commission on Human Rights (“MCHR”) and the EEOC based upon the alleged discriminatory actions of TW Telecom. The EEOC issued a right-to-sue letter on September 20, 2012, giving Mr. Mackley up to and including December 19, 2012 to file a lawsuit based upon his August 2012 charge of discrimination. Mr. Mackley timely filed a complaint on December 10, 2012. Because Mr. Mackley timely filed a charge of discrimination, received an EEOC right-to-sue letter, and filed a lawsuit within the ninety-day period, his original complaint was timely. Nonetheless, TW Telecom argues that Mr. Mackley’s proposed amended complaint would be untimely as it does not relate back to the date of the timely-filed original complaint and, therefore, falls outside of the ninety-day limitations period. The court does not agree.
Pursuant to Fed.R.Civ.P. 15(c), an amended complaint may relate back to the date of a timely-filed original complaint, even if the amendment is outside of the statute of limitations, 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.” It is within the court’s sound discretion to decide whether a new claim meets this standard. If the amendment alters the original complaint enough to prevent the defendant from receiving adequate notice about the conduct, transaction, or occurrence underlying the claim or defense, then the amendment will not relate back and will be deemed untimely.
In this case, TW Telecom does not argue that the proposed amended complaint fails to arise out of the same conduct, transaction, or occurrences set forth in the original complaint. Rather, TW Telecom suggests that when Judge Crow dismissed Mr. Mackley’s original complaint without prejudice, the case concluded and the filing of a new complaint would be past the ninety-day period triggered on September 20, 2012—the date when Mr. Mackley received his right-to-sue letter. The court does not agree with TW Telecom’s reasoning.
When a court expressly grants a plaintiff leave to file a motion to amend his or her complaint within a certain time period, the court’s order shows that it did not intend to dispose of the entire action. In fact, a complaint dismissed without prejudice is ordinarily a non-final, non- appealable order. Additionally, a complaint dismissed without prejudice generally can relate back to the original complaint as long as it meets the standards set forth in Fed.R.Civ.P. 15. As described by the Tenth Circuit in Moya v. Schollenbarger:
If the dismissal [of a complaint] is not a “final decision, ” that necessarily implies that the plaintiff may seek to amend the complaint—otherwise the dismissal would have been final. That amendment (assuming it was limited to the “conduct, transaction, or occurrence” at issue in the original complaint) would then relate back to the date that the original complaint was filed. Thus, no claim that was timely when made in the original complaint would be barred when made in a properly authorized amended complaint.
In this case, Judge Crow ordered Mr. Mackley’s original complaint to be dismissed without prejudice and granted him up to and including May 3, 2013, to file a motion to amend to cure certain pleading deficiencies. Based upon this language, Mr. Mackley was granted the opportunity to file an amended complaint that, if it met the requirements of Fed.R.Civ.P. 15(c), would be allowed to relate back to the original complaint. After examining Mr. Mackley’s proposed amended complaint, the court finds that it arises out of the same conduct, transaction, and occurrences set forth in the original complaint. Consequently, Mr. Mackley’s proposed amended complaint as it conforms to this order may relate back to the timely-filed ...