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Carter v. Spirit Aerosystems, Inc.

United States District Court, D. Kansas

October 27, 2017

MARK ANTHONY CARTER, Plaintiff,
v.
SPIRIT AEROSYSTEMS, INC., et al., Defendants.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN UNITED STATES DISTRICT JUDGE

         Pro se plaintiff Anthony Carter seeks monetary damages against his former employer, Spirit Aerosystems, Inc. (“Spirit”), his former labor union, International Association of Machinists and Aerospace Workers (“IAM”), Spirit's legal representative, Foulston Siefkin LLP (“Foulston”), and the United States Department of Labor (“DOL”). All of Carter's claims originate from his time working for Spirit. Carter alleges Spirit unlawfully discriminated against him and ultimately fired him in retaliation for making a formal complaint regarding his mistreatment.

         Before the Court are three motions related specifically to Carter's claims against Spirit. On July 12, 2017, Spirit filed a partial motion to dismiss Carter's claims. On July 21, 2017, Carter asked the Court for leave to file a seconded amended complaint, and Spirit was the only defendant who opposed the motion. On September 12, 2017, Spirit filed a motion to clarify an earlier ruling from the Court. For the sake of judicial economy, and due to the interrelated nature of these motions, the Court addresses all three in this Order. For the following reasons, Carter's Motion to Amend his First Amended Complaint (Doc. 34) is denied, Spirit's Partial Motion to Dismiss (Doc. 23) is granted, and the Court considers Spirit's Motion for Clarification (Doc. 54) adequately addressed.

         I. Factual and Procedural Background [1]

         Carter, a former underwing mechanic for Spirit, frequently missed work because of his own work-related injuries and his wife's health condition. Carter maintains that all of his absences were excused leaves of absence under the Family Medical Leave Act (“FMLA”). On August 25, 2014, Carter's former manager, Trey Fredrick, told Carter that he would not be offered the opportunity to work overtime because he was so frequently absent from work. Furthermore, Carter says Frederick and Lori Myers-another Spirit supervisor-threatened and attempted to transfer him to the physically demanding “aft cowling” position. Fredrick and Myers insisted Carter work in the “aft cowling” position despite Carter's injury history and upcoming doctor's appointment where he intended to receive medical restrictions on how much heavy lifting he could do.

         On August 28, 2014, Carter filed an internal complaint with Spirit's Equal Employment Opportunity Department regarding his perceived mistreatment. Carter claims Frederick and Myers retaliated against him for making the complaint by repeatedly harassing him in person and by text message, threatening to discipline him, changing some of his absences in Spirit's system from “excused” to “unexcused, ” and placing him on stricter work restrictions-for example, requiring he ask permission before taking restroom breaks.

         During this time, Spirit repeatedly disciplined Carter for failing to notify his supervisors that he would be absent on days he was unable to work. Spirit gave Carter multiple warnings and two suspensions for violating the company's call-in policy. On July 21, 2015, Spirit fired Carter for the same conduct.

         Between December 14, 2014 and July 27, 2015, Carter filed five grievances with his labor union, IAM. Each grievance was made after Carter was disciplined for missing work without calling his supervisor. Carter's final grievance was in response to Spirit terminating his employment. On November 17, 2015, IAM and Spirit sent a joint letter to Carter that said: “After a thorough investigation by the Union and the Company, it is agreed that these grievances will not be moved to the next level and are considered closed.” Carter also filed two charges of discrimination with the Equal Employment Opportunity Commission (“EEOC”). The first charge was filed in 2014 while Carter still worked for Spirit.

         On May 6, 2015, the EEOC notified Carter that his first charge would be dismissed and provided Carter a right-to-sue letter. The EEOC letter said:

Based upon its investigation, the EEOC is unable to conclude that the information obtained establishes violations of the statutes. . . . This will be the only notice of dismissal and of your right to sue that we will send you. You may file a lawsuit against the respondent(s) under federal law based on this charge in federal or state court. Your lawsuit must be filed within 90 days of your receipt of this notice; or your right to sue based on this charge will be lost. (emphasis in original).

         Carter filed a second charge with the EEOC after he was fired-that charge was likewise dismissed by the EEOC and Carter was issued a second right to sue letter on June 13, 2016.

         Carter, proceeding pro se, initiated this lawsuit September 9, 2016-more than a year after receiving the first right-to-sue letter from the EEOC. Carter's original complaint only alleged a violation of the Americans with Disabilities Act (“ADA”) against Spirit. On June 21, 2017, Carter filed an amended complaint adding three defendants: Foulston, IAM, and DOL. Carter also added claims under the FMLA, the Kansas Workers' Compensation Act, K.S.A. § 60-1009, common law defamation, and breach of contract.

         In July 2017, Sprit filed a partial motion to dismiss, seeking dismissal of Carter's ADA claim arising from his 2014 EEOC charge, the breach of contract claim, the workers' compensation claim, and the § 60-1009 claim. Carter filed a Response to Spirit's partial motion to dismiss, which included a request for leave to file a second amended complaint. Carter says the second amended complaint would specify which claims apply to which defendants, would name additional defendants in the suit, and would correct errors in the Amended Complaint. For example, in the Amended Complaint, Carter mistakenly brought a claim under § 60-1009-a Kansas civil procedure statute that appears entirely irrelevant to this suit-whereas he intended to bring a claim under § 44-1009, which is the Kansas Act Against Discrimination (“KAAD”). It is unclear from Carter's motion who he seeks to add as defendants.

         On August 15, 2017, after Spirit's partial motion to dismiss had been fully briefed by the parties, Carter filed a document titled “Plaintiff's Response to Defendant's Motion to Dismiss, Defendant's Response to Plaintiff's Response.” Evidently, it was Carter's intention for this document to function as three separate briefs: a Surreply to Spirit's partial motion to dismiss, a Reply in support of his motion for leave to file a second amended complaint, and a Response to Foulston's motion to dismiss. Carter filed this document without seeking prior approval from the Court. Accordingly, the Court entered an order striking the surreply portion as improperly filed.

         On September 12, 2017, Spirit filed a motion to clarify the Court's order striking Carter's Surreply. Specifically, Spirit desired clarification on whether the Court struck Carter's “statement of uncontroverted facts”-a section included at the end of Carter's brief that comprised of 54 paragraphs containing additional facts. Spirit took the position that these facts should be considered a part of the stricken surreply portion of Carter's brief. Alternatively, if the Court would consider these additional facts in deciding Carter's motion to amend, Spirit requested permission to file its own surreply to address the facts.

         So, the three issues before the Court are: (1) whether Carter should be granted leave to file a second amended complaint, (2) whether the Court will consider the additional facts supplied in Carter's responsive briefing, and (3) whether Carter's pleadings survive Spirit's partial motion to dismiss.

         II. Legal Standard

         A. Motion to Amend

         A “party may amend its pleading once as a matter of course” within 21 days after serving it, or within 21 days after service of a responsive pleading or a Rule 12 motion.[2] Thereafter, “a party may amend its pleadings only with the opposing party's written consent or the court's leave.”[3] Under Rule 15(a), leave to amend a complaint is freely given when justice so requires. Rule 15 is intended “to provide litigants ‘the maximum opportunity for each claim to be decided on its merits rather than on procedural niceties.' ”[4] Courts may deny leave to amend, however, based on “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 by virtue of allowance of the amendment, [or] futility of amendment.”[5] “A proposed amendment is futile if the complaint, as amended, would be subject to dismissal for any reason.”[6] It is within the Court's sound discretion whether to allow a proposed amendment after the permissive period.[7]

         B. Motion to Dismiss

         To survive a motion to dismiss, a complaint must present factual allegations, assumed to be true, to “raise a right to relief above the speculative level” and must contain “enough facts to state a claim to relief that is plausible on its face.”[8] Under this standard, “the complaint must give the Court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.”[9] The plausibility standard enunciated in Bell Atlantic v. Twombly, seeks a middle ground between heightened fact pleading and “allowing complaints that are no more than ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause action, ' which the Court stated ‘will not do.' ”[10] A claim is facially plausible if the plaintiff pleads facts sufficient for the court to reasonably infer that the defendant is liable for the alleged misconduct.[11]

         “A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.”[12] However, the Court cannot “assume the role of advocate for the pro se litigant.”[13] The Court will not “supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf.”[14] The Court need only accept as true a plaintiff's “well-pleaded factual contentions, not his conclusory allegations.”[15]

         III. Analysis

         A. Motion to Amend

         Carter requests permission from the Court to file a second amended complaint. The basis for Carter's request is to fix mistakes in his Amended Complaint, add more defendants to the suit, and clarify which claims apply to which defendants. In return, Spirit argues that Carter's motion to amend should be denied “because any proposed amendment is futile.” Before addressing the futility of allowing Carter to amend his pleading, the Court first considers whether Carter's motion followed the proper procedure under the Court's local rules.

         In addition to Rule 15 of the Federal Rules of Civil Procedure, the Court has its own local rules governing how to request leave to amend a pleading.[16] D. Kan. Rule 15.1(a) states:

A party filing a motion to amend or a motion for leave to file a pleading or other document that may not be filed as a matter of right must: (1) set forth a concise statement of the amendment or leave sought; (2) attach the proposed pleading or other document; and (3) comply with the other requirements of D. Kan. Rules 7.1 through 7.6.

         While a pro se party is afforded greater leniency than a party with legal representation, “a plaintiff's pro se status does not relieve him from complying with this Court's procedural requirements.”[17] The failure to comply with Rule 15.1 is sufficient reason for the Court to deny a motion to amend; although dismissal under Rule 15.1 is generally without prejudice, giving the party an opportunity to re-file the pleading in conformity with the rules.[18]

         Here, Carter did not attach a copy of his proposed Second Amended Complaint. The obvious purpose of Rule 15.1 is to compel parties to provide the Court with the information it needs to determine whether a motion to amend is warranted. Without a copy of the proposed pleading, the Court cannot conclusively determine if allowing Carter to amend his complaint would promote justice or be entirely futile. Although Carter's omission limits the Court's ability to do a thorough analysis, the Court is receptive to Spirit's argument-based on the information Carter has provided-that any amendment would be futile. Many of the deficiencies in Carter's Amended Complaint, which the Court addresses below in section III.C, are unlikely to be remedied by adding new defendants or correcting minor mistakes. Carter's offer to clarify which claims apply to which defendants might prove helpful to the Court and defendants, but it does not change the material allegations already present in Carter's Amended Complaint.

         Carter does identify one amendment that has the potential to correct a deficiency with his most recent complaint: amending the claim that he mistakenly brought under § 60-1009 to a KAAD violation under § 44-1009, which is the claim Carter originally intended to bring. Spirit argues that a KAAD claim would still be subject to dismissal and, ...


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