Fleming v. Sharp Mfg. Co. of America

DEREK D. FLEMING Plaintiff,

v.SHARP MANUFACTURING COMPANY OF AMERICA, Defendant.

No. 11-2911-STA

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION

Date: July 25, 2012

ORDER GRANTING IN PART, DENYING IN PART PLAINTIFF'S MOTION FOR

LEAVE TO FILE AMENDED COMPLAINT

Before the Court is Plaintiff Derek D. Fleming's Motion to Amend/Correct Pro Se Complaint (D.E. # 18) filed on April 30, 2012. Defendant Sharp Manufacturing Company of America ("Sharp") has responded in opposition to Plaintiff's Motion (D.E. # 21), and Plaintiff has filed a reply brief (D.E. #23). For the reasons set forth below, the Motion is GRANTED IN PART, DENIED IN PART.

BACKGROUND

I. Procedural Background

Plaintiff filed his initial Complaint, pro se, on October 14, 2011, seeking injunctive relief as well as damages resulting from the termination of his employment. Plaintiff alleges that Defendant employed discriminatory practices by not allowing male employees in his department to have the same assistance that female employees were routinely granted. Plaintiff alleges when he voiced hisfrustration about this practice, Defendant retaliated by relieving him of his duties. On June 7, 2010, the Plaintiff filed an Equal Employment Opportunity Commission ("EEOC") charge of discrimination (D.E. #17-2) against Defendant. The EEOC issued its determination letter on July 28, 2011, stating that Plaintiff was the victim of gender discrimination and that he engaged in protected activity on at least three (3) occasions prior to his termination (D.E. #17-3). The EEOC also concluded that conciliation efforts had failed and thereafter issued its Right to Sue Notice (D.E. #17-4) on September 30, 2011. Fourteen days later, Plaintiff filed this lawsuit.

On February 21, 2012, Defendant filed a Motion to Dismiss pursuant to Rule 12(b)(6), which remains pending before this court (D.E. # 11). On March 27, 2012, counsel for Plaintiff filed a notice of appearance (D.E. # 14). On April 10, 2012, Plaintiff filed a response to Defendant's Motion to Dismiss, arguing that Plaintiff had articulated enough facts to state a claim for relief to be granted (D.E. # 17).

II. Motion to Amend/Correct Pro Se Complaint

On April 30, 2012, Plaintiff filed the instant Motion to Amend/Correct Pro Se Complaint (D.E. #18). Upon review, the proposed Amended Complaint alleges the following causes of action against the Defendant: (1) gender discrimination based on the denial of training opportunities, assignments, benefits, and pay equality in violation of Title VII, 42 U.S.C. 2000e-2(a); 42 U.S.C.§ 1981, and the Tennessee Human Rights Act ("THRA"); (2) subjecting Plaintiff to demeaning, mocking, and humiliation by his fellow employees when he asked for assistance with his work creating a hostile work environment under Title VII and Tennessee common law; and (3) retaliation under Title VII and the THRA, Tenn. Code Ann. § 4-21-301, denying job benefits, suspension, threats, reprimands, negative evaluations, harassment, or other adverse treatment. Plaintiff contendsthat under Rule 15's liberal standard for amending the pleadings, the Court should permit Plaintiff to amend.

Defendant has responded in opposition to Plaintiff's Motion, arguing that the claims in Plaintiff's proposed Amended Complaint are either untimely or are futile because they would not survive a motion to dismiss. Defendant argues that under the THRA, the statute of limitations runs one year after the alleged discriminatory practice ceases, therefore barring Plaintiff's new claims under the THRA. Defendant next argues that a §1981 claim must prove intentional discrimination based upon race, not gender, as Plaintiff's proposed Amended Complaint alleges. Plaintiff has indicated that the gender discrimination claims under § 1981 were inadvertently included in the proposed amended pleadings. Defendant also contends that Plaintiff's hostile work environment claim would not survive a motion to dismiss. Defendant argues that the EEOC made no determination about a hostile work environment, barring Plaintiff from bringing the charge in federal court. In addition, Defendant argues that there is no claim for hostile work environment under Tennessee common law. Defendant asserts that Plaintiff's proposed Amended Complaint fails to plead any facts to establish a prima facie case of discrimination based on gender and would not survive a motion to dismiss. In its final argument, Defendant contends that, under Sixth Circuit precedent, Plaintiff is not permitted to rely on a Tennessee Department of Labor Unemployment ("TDOL") decision. For these reasons, Defendant argues that the Court should deny Plaintiff's Motion to Amend Pro Se Complaint.

By order of the Court, Plaintiff has replied to the arguments raised in Defendant's response. Plaintiff argues that Rule 15 of the Federal Rules of Civil Procedure allows him to freely amend his complaint when justice so requires. Plaintiff contends that the proposed claims under the THRA andthe hostile work environment claim under Title VII should relate back to the date on which the original complaint was filed, making these claims timely. Furthermore, Plaintiff alleges that he has pleaded sufficient facts in support of his gender discrimination and retaliation claims to survive a motion to dismiss. Plaintiff directs the Court to the charge of discrimination letter in which the he talks about the type of discrimination that gave rise to these claims. Finally, Plaintiff argues that the TDOL decision is an evidentiary matter, and the motion to amend stage is not the proper time to consider its admissibility. Plaintiff contends that Defendant's request is better suited for a motion in limine.

ANALYSIS

A pleading may be amended only "with the opposing party's written consent or by the court's leave."¹ Rule 15(a)(2) of the Federal Rules of Civil Procedure states that "[t]he court should freely give leave when justice so requires."² The Sixth Circuit has held that a motion to amend should be denied where the motion is "brought in bad faith, for dilatory purposes, results in undue delay or prejudice to the opposing party, or would be futile."³ In this case, Defendant argues that Plaintiff's Motion should be denied on the basis of timeliness as well as the futility of the proposed amendments. The Court will consider each argument in turn.

I. Plaintiff's Proposed THRA Claims Are Time Barred

Defendant first argues that Plaintiff's Motion should be denied because his THRA genderand retaliation claims are time barred. Under Tennessee law, a victim of alleged employment discrimination may bring a claim by filing an administrative action with the THRA or EEOC followed by judicial review, or the plaintiff can file a direct action in state chancery court.⁴ If the plaintiff decides to file an administrative action, he is not barred from bringing a civil action before the administrative proceedings have been adjudicated.⁵ In like manner, a plaintiff is allowed to toll the statute of limitations if the alleged discriminatory action is apart of a continuing violation of the THRA.⁶ The continuing violation exception only applies in very limited circumstances. For example, there must be evidence of a "long standing and demonstrative policy of discrimination."⁷ Even in these rare circumstances, the statue of limitations begins to run when the last alleged act of continuing discrimination ceases.⁸ If the plaintiff decides to file an administrative claim, the one-year statute of limitation for the claim does not toll while the claim is pending before the THRA or the EEOC.⁹

Plaintiff counters that his proposed THRA claims are not time barred because they relateback to the original complaint under Federal Rule of Civil Procedure 15(c)(1)(B).¹⁰ Rule 15(c)(1)B) provides that the amendment relates back to the original pleading if it arises out of the same transaction or occurrence as the original pleading.¹¹ Recently, the Supreme Court has held that the original and amended pleadings must be "tied to a common core of operative facts."¹² The purpose of Rule 15(c) is to ensure that a "party who has been notified of litigation concerning a particular occurrence has been given all the notice that statute of limitations were intended to provide."¹³ In determining whether an amended complaint relates back to the original pleading, the court should consider "undue delay in filing, lack of notice to the opposing party, bad faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of the amendment."¹⁴

Here, Plaintiff filed his EEOC complaint less than one month after termination by Defendant (D.E. # 18). However, Plaintiff's original pleading never alleged any claims under the THRA. Even if Plaintiff were allowed to amend the original Complaint, the effort would be futile because the THRA's one-year statute of limitation would have run. Plaintiff's employment was terminated by the Defendant on May 21, 2011. Plaintiff filed his original Complaint on October 14, 2011. Plaintiff only had one-year to file a THRA claim, regardless of whether there was a pending administrative claim before the THRA or EEOC.¹⁵ Likewise, the retaliation claim under the THRA proposed in the Amended Complaint is time barred as well. Accordingly, Plaintiff's Motion to Amend is DENIED as to any cause of action under the THRA.

II. Claims Would Not Survive a Motion to Dismiss

Defendant also argues that several of Plaintiff's claims would not survive a Rule 12(b)(6) motion, and as such the Court should hold that these claims are futile. It is well-established that a "trial court may appropriately assess the legal sufficiency of a contemplated amendment in considering the propriety of granting leave to amend under Federal Rules of Civil Procedure 15(a) and deny the motion if amendment would be futile."¹⁶ A proposed amended pleading is futile if the...