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Andreas v. Gray County Board of Commissioners

United States District Court, D. Kansas

August 21, 2019

TABITHA ANDREAS, Plaintiff,
v.
GRAY COUNTY BOARD OF COMMISSIONERS, et al., Defendants.

          MEMORANDUM AND ORDER

          GWYNNE E. BIRZER, UNITED STATES MAGISTRATE JUDGE

         On July 31, 2019, the Court convened a conference to address Defendants' Motion for Leave to Amend Answer (ECF No. 79) and the current deadlines. Plaintiff appeared through counsel, Adam Gasper and Greg Spies. Defendants appeared through counsel, Allen Glendenning.

         After careful of review of the parties' written briefs and attached exhibits (ECF Nos. 79, 80-83) and hearing arguments of counsel, the Court orally GRANTED the Motion during the hearing (see ECF No. 89). The previously-announced ruling of the Court is now memorialized below.

         I. Background[1]

         A. Nature of the Case

         This is an employment action wherein Plaintiff alleges unlawful termination from her job as a Deputy Sheriff in Gray County, Kansas. On April 15, 2016, Gray County Undersheriff Jeffrey Sharp terminated Plaintiff Tabitha Andreas' employment. Plaintiff claims she was fired in violation of Title VII[2] based on her sex and as a result of a hostile work environment. She also claims her termination was retaliation for her reports of disparate treatment and workplace injury, and for filing a worker's compensation claim. Andreas was the only female Deputy Sheriff in Gray County, and she claims she was the lowest paid. Plaintiff asserts Sharp held antiquated gender-biased beliefs that women should not be law enforcement officers, and he wanted to punish her because she reported disparate treatment, including demeaning and sexually-charged behavior, directed at her by Deputy John Dowd and others in the department. Plaintiff also claims Sharp refused to provide any reason for her termination.

         Defendants deny Plaintiff's allegations. They contend Plaintiff was not harassed or bullied; rather they claim Dowd actually encouraged and offered to provide help and assistance to Plaintiff, both at work and at home. Defendants claim Plaintiff developed personality conflicts with co-workers, superiors, staff while she and Dowd were training at the Kansas Law Enforcement Training Center (“KLETC”). KLETC administration advised the Sheriff's Department that Plaintiff stood out among students because of the problems she created there. Also, Plaintiff was instructed by the Sheriff not to leave her minor children unsupervised while she was training at KLETC; yet she still did so and declined offers from Sheriff James Kramer, his wife, and Dowd's wife to take them in. Defendants also claim Plaintiff did not engage in any protected activity under Title VII. Although she complained about Dowd to the KLETC administration, she did not present the complaint as unlawful discrimination-only a clash between students.

         B. Procedural Posture

         Plaintiff filed this case against Gray County Board of Commissioners in July 2017 and amended her complaint as a matter of course to include Defendants Sheriff James Kramer and Undersheriff Jeffrey Sharp in October 2017. (ECF No. 7.) The matter progressed with minimal court intervention until the first discovery deadline approached in January 2019. At the parties' request, on January 15, 2019, the undersigned U.S. Magistrate Judge held a status conference and all deadlines were postponed to accommodate uncompleted discovery. (See Order, ECF No. 53.) On April 5, 2019, the Court granted the parties' joint motion to complete certain depositions and third-party discovery beyond the discovery deadline (Order, ECF No. 70). On April 24, the parties submitted a joint proposed Pretrial Order, which included some disputes and showed discovery remained incomplete. At the parties' request, a deposition conference was held on April 26 (ECF No. 74), and during a follow-up conference on May 8, the undersigned ordered further extensions of the schedule. (ECF No. 77.) At that time, the discovery deadline was extended to June 28 with a pretrial conference scheduled for July 31, 2019. (Id.) During the April 26 conference, Defendants (through counsel, Allen Glendenning), mentioned they may be seeking leave to amend their answer due to information gained at depositions. After the parties participated unsuccessfully in mediation, Defendants filed their motion on May 16, 2019.

         With this background in mind, the Court turns to Defendants' Motion.

         II. Plaintiff's Motion for Leave to Amend (ECF No. 79)

         As previously noted, the briefing considered by the Court includes Defendants' motion and supporting briefs (ECF Nos. 79-81 and 83) and Plaintiff's Response in Opposition (ECF No. 82). Prior to the July 31 hearing, the Court thoroughly reviewed the briefing, and the parties' positions are summarized as follows.

         A. Parties' Arguments

         1. Defendants' Position

         Defendants seek to amend their Answer for the first time to add two new affirmative defenses, both of which relate only to damages: 1) the “same decision” defense and 2) the “after-acquired evidence” defense. Defendants contend newly-discovered evidence demonstrate Plaintiff would have been terminated just weeks after her firing as a result of an incident at her home. During the deposition of Undersheriff Sharp on April 25, 2019, Plaintiff's counsel asked Sharp whether he was aware of officers arriving at Plaintiff's residence and confiscating one of her weapons, to which Sharp replied he was unaware. (Sharp Dep. 81:6-11; attached as Ex. 4 to Defs.' Mem., ECF No. 80-4.) Apparently, on May 31, 2016, a Sheriff's Deputy (not named in this lawsuit) was called to Plaintiff's home after receiving a report she was waving a gun around her children. Plaintiff's weapon was confiscated by the officer, and an incident report was created. (See ECF No. 80-2, Ex. 2, sealed.) Defendants contend although a Deputy was involved, and a report was placed in the County's electronic “CAD” system, [3] they remained unaware of the incident. (ECF No. 80 at 3.) Defendants argue because the incident would have been clear grounds for Plaintiff's termination, any claim for lost wages after the date of the incident is foreclosed under the after-acquired evidence doctrine. (Id. at 2.)

         In addition, Defendants demonstrated through deposition transcript they specifically asked Plaintiff whether she had any contact with Gray County officers after her termination, and she did not reveal this incident. (Andreas Dep. Vol. 2, 101:17-24; 103:10-18; attached as Ex. 3 to Defs.' Mem., ECF No. 80-3.) Undersheriff Sharp testified he did not know anything about the incident in which Plaintiff's weapon was confiscated. (Sharp Dep. 81:6-17, attached as Ex. 4 to Defs.' Mem., ECF No. 80-4.)

         Defendants' primary argument is they first became aware of the incident during Plaintiff's counsel's questioning at recent depositions. They claim this late discovery of evidence constitutes good cause for the late amendment. They also argue Plaintiff will not be prejudiced, because she has known about this incident since it occurred, and the addition of these affirmative defenses does not foreclose her claim, but merely affects her damages.

         2. Plaintiff's Position

         In response to Defendants' motion, Plaintiff focuses on undue delay, prejudice, bad faith, and futility of amendment. She argues Defendants unduly delayed in seeking amendment, because Defendants' own deputy responded to the incident at her home and entered a report into the electronic CAD system, and Sheriff Kramer himself was involved in at least the discussion regarding the report, as evidenced by the report itself. The report has been in Defendants' custody or control since May 2016, yet Defendants filed their motion to amend three years later. Additionally, Plaintiff's first document request to Defendants sought “all documents that refer or related to Plaintiff, including but not limited to police reports . . . .” But Defendants failed to produce this report, and-demonstrating a lack of diligence-apparently neglected to investigate their own records. (ECF No. 82 at 3-4.)

         Plaintiff also claims she will be prejudiced by her inability to conduct discovery directed to the proposed new defenses. All discovery, including depositions, is complete, and the deadlines in this case have been previously extended. (See id. at 82.) Plaintiff contends even if she is permitted to conduct additional depositions, she will be forced to pursue new lines of questioning and all of this will be done at a considerable cost.

         Plaintiff further contends Defendants are motivated by bad faith to include these defenses. In Defendants' motion, they claim “neither Sheriff Kramer nor Undersheriff Sharp were involved in this incident and the officer involved. . . did not advise either [men] about this incident.” (ECF No. 80 at 2.) However, the police report itself shows Sheriff Kramer was involved in some capacity-at minimum, he discussed the incident with the responding officer and determined how it should be reported/handled. Therefore, Defendants falsely portray the Sheriff as being ignorant of the incident.

         Finally, Plaintiff argues the amendment should be denied as futile. She essentially claims because the incident happened after her termination, it cannot be used to support either a “same decision” or “after-acquired evidence” defense.

         B. Legal Standards

         A brief review of the legal standards underlying the parties' arguments is necessary in considering Defendants' motion.

         1. Amendment Generally

         a. Fed.R.Civ.P. 16

         When a proposed amendment is offered after the deadline to amend pleadings has passed, Fed.R.Civ.P. 16(b)(4) is implicated. It provides that a “schedule may be modified only for good cause and with the judge's consent.” When considering a motion to amend the pleadings filed past the scheduling order deadline, “judges in this District have consistently applied a two-step analysis based on both Rule 16(b) and Rule 15(a).”[4] In such cases, the court “first determines whether the moving party has established good cause within the meaning of Rule 16(b)(4) so as to justify allowing the untimely motion.”[5] Only after finding good cause has been shown will the court proceed to the second step and evaluate whether the broader Rule 15(a) standard for amendment has been satisfied.

         “Good cause” under Rule 16(b)(4) requires the moving party to “show that the amendment deadline could not have been met even if it had acted with due diligence.”[6]“Carelessness is not compatible with a finding of diligence and offers no reason for a grant of relief.”[7] The party requesting an untimely amendment “is normally expected to show good faith on its part and some reasonable basis for not meeting the deadline.”[8] A lack of prejudice to the nonmovant does not constitute “good cause.”[9] The district court has discretion to decide whether the movant has established good cause sufficient to modify the scheduling order deadlines, and such a decision is reviewed only for abuse of discretion.[10] If the Court finds Rule 16 is satisfied, the Court then analyzes the request for amendment under Fed.R.Civ.P. 15.

         b. Fed.R.Civ.P. 15

         The Rule 15 standard for permitting a party to amend his or her complaint is well-established. A party may amend its pleading as a matter of course under Rule 15(a)(1), either before the responding party answers or within 21 days after service of a responsive pleading. However, in cases such as this, where the time to amend as a matter of course has passed, without the opposing party's consent a party may amend its pleading only by leave of the court under Rule 15(a)(2).

         Rule 15(a)(2) provides leave “shall be freely given when justice so requires, ” and the decision to allow an amendment is within the sound discretion of the court.[11] The court considers a number of factors in deciding whether to allow an amendment, including timeliness, prejudice to the other party, bad faith, and futility of amendment.[12] In exercising its discretion, the court must be “mindful of the spirit of the federal rules of civil procedure to encourage decisions on the merits rather than on mere technicalities.”[13] The Tenth Circuit acknowledged Rule 15 is intended “to provide litigants ‘the maximum opportunity for each claim to be decided on its merits rather than on procedural niceties, '”[14]especially in the absence of bad faith by an offending party or prejudice to a non-moving party.[15]

         2. Defendants' Proposed Defenses

         A brief review of the law surrounding the proposed new defenses is germane to the discussion, given Plaintiff's argument that each defense is futile.

         a. “Same Decision” Defense

         Defendants' claim it would have terminated Plaintiff anyway, due to the incident at her home, regardless of her gender or her allegedly protected complaints, is the “same decision” defense. Many of the District of Kansas cases discussing the defense have been in the context of a former employee accusing his/her employer of retaliation for the employee's exercise of his/her First Amendment right to free speech. In that context, courts have held the employer “can escape liability by showing that she would have taken the same action even absent the protected conduct.”[16] But in a 2008 District of Kansas case involving a Title VII employment action, the court found the “defendant does not avoid liability by proving its same decision defense; rather, plaintiff's remedies are limited if defendant proves that defense.[17] In any event, the employer must prove by a preponderance of the evidence that it would have terminated the employee even in the absence of the employee's protected conduct.[18]

         b. After-Acquired Evidence Doctrine

         Operating in a similar manner to the same decision defense is the “after-acquired evidence” doctrine. Courts in this District have explained the after-acquired evidence doctrine as follows:

The after-acquired evidence doctrine allows employers to diminish damages in Title VII employment discrimination cases by introducing evidence of an employee's wrongdoing that the employer discovered after its initial employment decision. Although this defense does not appear to have any bearing on liability in a Title VII case, it might impact the specific remedy to be ordered or the amount of damages to be awarded.[19]

         The Tenth Circuit explained the after-acquired evidence doctrine as follows:

Under [the U.S. Supreme Court case of McKennon v. Nashville Banner Publ'g Co.], information that an employer learns after it has discharged an employee is not relevant to the determination of whether an employer violated Title VII because it necessarily played no role in the actual decision. Nevertheless, if an employer learns of employee wrongdoing after it has fired that employee, and it can prove that the wrongdoing was of such severity that the employee in fact would have been terminated on those grounds alone if the employer had known of it at the time of the discharge, the employee may not obtain front ...

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