United States District Court, D. Kansas
Crow, U.S. District Senior Judge.
an employment discrimination action which was originally
filed in the Western District of Missouri and later
transferred to the District of Kansas. This case is before
the court upon the report and recommendation (R&R) of a
United States Magistrate Judge. Doc. No. 90. The R&R
recommends that the court deny plaintiff's motion to
amend the complaint to add a claim under Title VII of the
Civil Rights Act of 1964.
initiated this action with an in forma pauperis application
on January 3, 2018 in the Western District of Missouri. Doc.
No. 1. Prior to that, in December 2016 plaintiff filed an
administrative complaint of discrimination at Fort Riley,
Kansas. On the administrative complaint she checked
“disability” and “reprisal” as the
reasons she was discriminated against. Doc. No. 6-2, p. 3.
The report of the investigation of plaintiff's
administrative complaint indicates that plaintiff's
previously protected activity was a May 2015 formal race
discrimination complaint against the Fort Leonard Wood
Commissary in Missouri and that plaintiff attributed her
alleged harassment in Kansas to her disability and her EEO
activity in Missouri. Doc. No. 8, pp. 5 and 7.
used a form for her complaint in this case. Doc. No. 6-1. On
the form, plaintiff checked at page 3 that her claims were
made under the Americans with Disabilities Act (ADA). She did
not check Title VII. On page 4 she checked that she was
claiming retaliation, harassment/hostile work environment,
constructive discharge and disability discrimination. On
March 30, 2018, plaintiff filed a “Statement of
Facts.” Doc. No. 7. On the last page of this document,
plaintiff lists “Claim I” as constructive
discharge in violation of Title VII and “Claim
II” as disability discrimination in violation of the
ADA. However, neither the complaint nor the “Statement
of Facts” explicitly describes retaliation or reprisal
for engaging in activity protected by Title VII. The
complaint and the “Statement of Facts” both
allege that plaintiff was targeted or discriminated against
because of her disability.
this case was in the Western District of Missouri, defense
counsel apparently construed plaintiff's complaint as
bringing a Title VII action. Defense counsel filed a motion
to dismiss or transfer which claims that all of the facts
raised regarding Title VII discrimination occurred at Fort
Riley, Kansas. Doc. No. 15. The motion does not mention the
ADA or the Rehabilitation Act. The order granting the motion
and transferring this case to the District of Kansas refers
to this action as proceeding under Title VII. Doc. No. 19.
this case was transferred on August 30, 2018, defense
counsel's position has been that the complaint does not
allege a Title VII claim. In November 2018, after the case
was transferred to Kansas, defense counsel filed a motion to
dismiss asserting that the ADA did not provide a remedy
against a federal defendant. The motion was considered moot
after the parties agreed to consider plaintiff's claims
under the Rehabilitation Act. Plaintiff requested that the
court “amend her claim under [the] Rehabilitation Act
of 1973 . . . to bring her disability harassment, retaliation
and constructive discharge discrimination complaint . .
.” Doc. No. 42. Plaintiff did not mention a Title VII
claim. The court subsequently ordered on January 8, 2019 that
“plaintiff's claims in the original complaint
[shall be construed] as being brought pursuant to the
Rehabilitation Act, not the Americans with Disabilities
Act.” Doc. No. 49.
to the R&R, on May 9, 2019 the parties submitted their
proposed pretrial order to the Magistrate Judge. Plaintiff
included claims under Title VII as well as the Rehabilitation
Act. Defendant disagreed that plaintiff had stated claims
under Title VII in the complaint. Plaintiff then filed a
motion to amend to add a claim under Title VII on May 14,
2019. Doc. No. 84.
motion to amend comes more than four months after the January
2, 2019 deadline for amendments to the complaint set out in a
scheduling order entered last November. Doc. No. 33. It was
also filed after the May 1, 2019 close of discovery. The
Magistrate Judge considered both sides' comments as to
the motion to amend during a May 21, 2019 pretrial
conference. It is clear from plaintiff's comments that
the purpose of her motion to amend is to add a claim that she
was retaliated against in Kansas because of her protected
activity in Missouri.
complaint (Doc. No. 6-1) does not mention Title VII or
discrimination against plaintiff for engaging in activity
protected by Title VII. Defendant's current counsel have
considered references to retaliation or harassment as
concerning retaliation for opposing disability
discrimination, although brief inquiries regarding
retaliation against activity protected by Title VII were made
during plaintiff's deposition. Plaintiff told the
Magistrate Judge during the pretrial conference that she
forgot to include a Title VII claim in the complaint,
that she did not include discrimination based on protected
activity in the complaint,  and that the motion to amend was
an attempt to correct that
“mistake.” She did not take the position that she
delayed bringing the motion to amend because she thought the
claim was already part of her complaint. Nor does she take
that position in her objections to the R&R.
Magistrate Judge recommends that the motion to amend be
denied because plaintiff has not shown good cause under
Fed.R.Civ.P. 16(b)(4) to amend the scheduling order and
because plaintiff has unduly delayed her motion to amend the
complaint for purposes of Fed.R.Civ.P. 15(a)(2). As the
Magistrate Judge explains in the R&R (Doc. No. 90, pp.
5-10), this boils down to a finding that plaintiff has not
provided a good justification or explanation for the delay in
offering the amendment.
objections to the R&R, plaintiff states that the delay in
bringing the motion to amend was inadvertent, unintentional
and happened because she is working her case alone, has a
limited knowledge of the law and has a medical condition
which restricts her concentration and focus. The court notes
that none of these reasons were expressly stated by plaintiff
during the pretrial conference when the motion to amend was
discussed. Plaintiff claims more specifically that in March
2019, she realized that she could not bring a hostile work
environment, retaliation and constructive discharge claim
under the Rehabilitation Act.Plaintiff alleges this motivated
her to research whether she could make claims under two
different laws in her case. She claims that she discovered
through her research that she could do so on May 12, 2019.
She also asserts that she was misled by defense counsel's
statement, in connection with the motion to dismiss filed in
November, that the Rehabilitation Act provided her exclusive
remedy. She did not make this claim either before the
denies that adding a Title VII claim will cause undue delay.
She asserts that the facts in this matter have already been
investigated, although she will not oppose reopening
discovery and submitting again to a deposition and another
are many examples of courts finding undue delay under Rules
16(b)(4) and 15(a)(2) to deny pro se motions to
amend. E.g., Strope v. Collins, 315 Fed.Appx. 57,
61-62 (10th Cir. 2009); Gorsline v. U.S. Dept.
of Defense, 1994 WL 722943 *2 (10th Cir.
1994). As the Magistrate Judge noted, the leniency accorded
pro se litigants does not warrant an exemption from
the operation of the Federal Rules of Civil Procedure. See
Nielsen v. Price, 17 F.3d 1276, 1277
(10th Cir. 1994)(stating general proposition); see
also, Gardiner v. McBryde, 2018 WL 6715827 *3-4
(D.Kan. 12/21/2018)(referencing proposition in case involving
untimely motion to amend from a pro se plaintiff).
Generally, where the party seeking amendment knows the facts
upon which the proposed amendment is based but fails to
include them in the original complaint, the motion to amend
is subject to denial. Frank v. U.S. West, Inc., 3
F.3d 1357, 1366 (10th Cir. 1993)(quoting Las
Vegas Ice & Cold Storage Co. v. Far West Bank, 893
F.2d 1182, 1185 (10th Cir. 1990)).
reasons for her delay in bringing the motion to amend fail to
persuade the court that the delay is justified. She does not
claim newly discovered facts or a change in the law. Her
comments before the Magistrate Judge suggest that the failure
to bring a Title VII claim earlier may have been an
inadvertent “mistake” or a matter of forgetting.
Doc. No. 88, pp. 6 and 26. She does not explain what
specifically caused her mistake or what spurred her to act
other than realizing in March that she could not bring the
Title VII claims she wanted to bring under the Rehabilitation
Act. But, she waited until May 9, 2019 to submit a Title VII
claim as part of a proposed pretrial order and then a few
days later asked to amend the complaint to include a Title
VII claim. Plaintiff claims that she did not learn through
her research until May 12, 2012 that she could proceed with
claims under two different laws. But, this assertion
conflicts with her proposed pretrial order on May 9 as well
with her “Statement of Facts” which lists claims
under Title VII and the ADA. So, this argument is not
credible to the court. And, plaintiff ...