Ma v. Nucor Corp.

HONGWEI "TERRY" MA PLAINTIFF v. NUCOR CORPORATION f/k/a Nucor Steel,Nucor Arkansas, and/or Nucor Steel Arkansas DEFENDANT

Case No. 3:19-cv-00344-KGB

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS NORTHERN DIVISION

February 12, 2021

ORDER

Before the Court are several pending motions related to plaintiff Hongwei Ma's operative complaint. Defendant Nucor Corporation f/k/a Nucor Steel, Nucor Arkansas, and/or Nucor Steel Arkansas ("Nucor") filed a motion to dismiss Ms. Ma's amended complaint (Dkt. No. 8). Ms. Ma filed a response (Dkt. No. 14). Ms. Ma then filed a motion for leave to file a second amended complaint (Dkt. No. 20). Nucor responded in opposition to that motion (Dkt. No. 22). Ms. Ma filed a motion for leave to file a belated reply to Nucor's opposition to her motion for leave to file a second amended complaint (Dkt. No. 23).

For the following reasons, the Court grants Ms. Ma's motion for leave to file a belated reply, directs Ms. Ma to file her belated reply within 14 days from entry of this Order, and has considered her proposed reply when ruling on the pending motions (Dkt. No. 23). The Court grants Ms. Ma's motion for leave to file a second amended complaint and directs Ms. Ma to file her proposed second amended complaint within 14 days from the entry of this Order (Dkt. No. 20). Further, although the Court has considered the merits of Nucor's arguments raised in its motion to dismiss Ms. Ma's amended complaint based on Nucor's assertion of futility, given the procedural posture of this case, the Court denies as moot Nucor's motion to dismiss Ms. Ma's amended complaint in the light of the Court's ruling permitting Ms. Ma to file a second amended complaint (Dkt. No. 8). The Court also denies as moot Ms. Ma's pending motion to stay ruling on defendant's motion to dismiss pending plaintiff's motion to amend first amended complaint (Dkt. No. 17).

I. Background

Ms. Ma was born in China, is of Chinese heritage, is a Canadian citizen, and is a legal resident of the United States of America temporarily residing in China (Dkt. No. 2, ¶ 3). Nucor is America's largest steel and steel products producer; is a foreign for-profit corporation organized under the laws of the State of Delaware; and maintains a principal place of business at 7301 East County Road 142 in Blytheville, Arkansas (Id., ¶ 4). At all relevant times, Nucor had over 800 employees; met all statutory requirements under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq.; and qualified as an "employer" within the meaning and coverage of Title VII (Id., ¶¶ 9-10).

Ms. Ma alleges that she was hired by Nucor as a Technical Lead - AISS and Coated Product Development on or about February 25, 2018 (Id., ¶¶ 18-19). Chad Gentry was Ms. Ma's direct supervisor, and Ms. Ma alleges that she was instructed to share an office with Mr. Gentry upon beginning her employment (Id., ¶¶ 20-21). Ms. Ma alleges in more detail in her complaint a series of inappropriate behaviors directed toward her by Mr. Gentry, including romantic and personal overtures (Id., ¶¶ 22-29). Ms. Ma alleges that she attempted to speak with Mr. Gentry about keeping their relationship professional and informed him that she knew that he was married and that she would not partake in an extramarital affair (Id., ¶¶ 25-26). Ms. Ma alleges that she attempted to rectify the matter by moving offices, that this attempt only made the situation worse, and that Mr. Gentry received these discussions and the spurning of his overtures poorly (Id., ¶ 27).

For example, Ms. Ma alleges that Mr. Gentry failed and refused to instruct her on what her job duties were (Id., ¶ 29). Ms. Ma alleges that Mr. Gentry performed her employee reviewdifferently from other employees and in an inappropriate manner (Id., ¶ 30). Ms. Ma alleges that Mr. Gentry gave her a poor performance review despite her good work in retaliation for her rejection of his improper overtures (Id., ¶ 31). Nucor undertook an investigation into the situation, although Ms. Ma alleges that this investigation was inadequate, superficial, and failed to remedy the adverse employment actions that had already been taken against her (Id., ¶¶ 32, 45).

On or about February 21, 2019, Ms. Ma filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") against Nucor, alleging discrimination based on sex, national origin, age, and retaliation (Dkt. Nos. 2, ¶ 33; 14-1). On or about September 10, 2018, Ms. Ma alleges that she received notice of her termination (Dkt. No. 2, ¶ 34). Ms. Ma states that Nucor offered insubordination and alleged safety violations as reasons for her termination (Id., ¶¶ 36, 48). Ms. Ma alleges that these reasons constitute pretext and that her termination occurred in retaliation for her protected activities (Id., ¶¶ 42, 47, 49).

Ms. Ma brings this action against Nucor¹ alleging wrongful discharge, sex discrimination, discrimination based on her heritage or race, discrimination on the basis of age, retaliation, and violation of state laws on discrimination (Dkt. No. 2, ¶¶ 1, 18-63). Ms. Ma alleges that Nucor is subject to vicarious liability for the actionable hostile work environment created by Nucor's employees and management personnel described herein (Id., ¶ 38). Ms. Ma sues Nucor pursuant to Title VII; the Age Employment in Discrimination Act ("ADEA"), 29 U.S.C. § 621, et seq.; and the Arkansas Civil Rights Act ("ACRA"), Arkansas Code Annotated § 16-123-107, et seq. (Id., ¶¶ 11-15).

II. Legal Standard

Ms. Ma moves for leave to amend her complaint pursuant to Federal Rule of Civil Procedure 15(a)(2), which provides that courts "should freely give leave when justice so requires." While there is no absolute or automatic right to amend, under the liberal amendment policy of Rule 15(a), "denial of leave to amend pleadings is appropriate only in those limited circumstances in which undue delay, bad faith on the part of the moving party, futility of the amendment, or unfair prejudice to the non-moving party can be demonstrated." Roberson v. Hayti Police Dep't, 241 F.3d 992, 995 (8th Cir. 2001) (citing Foman v. Davis, 371 U.S. 178, 182 (1962); Sanders v. Clemco Indus., 823 F.2d 214, 216 (8th Cir. 1987)).

A. Good Cause

Under Federal Rule of Civil Procedure 16(b)(4), "[a] schedule may be modified only for good cause and with the judge's consent." Rule 16(b)'s "good cause" standard "governs when a party seeks leave to amend a pleading outside of the time period established by a scheduling order, not the more liberal standard of Rule 15(a)." Hartis v. Chi. Title Ins. Co., 694 F.3d 935, 948 (8th Cir. 2012) (quoting Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 716 (8th Cir. 2008)). Eighth Circuit precedent establishes that, "[i]f a party files for leave to amend outside of the court's scheduling order, the party must show cause to modify the schedule." Sherman, 532 F.3d at 709 (emphasis in original) (quoting Popoalii v. Corr. Med. Servs., 512 F.3d 488, 497 (8th Cir. 2008)). The "primary measure of Rule 16's 'good cause' standard is the moving party's diligence in attempting to meet the [scheduling] order's requirements." Bradford v. DANA Corp., 249 F.3d 807, 809 (8th Cir. 2001) (citing Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992)). "The moving party fails to show good cause when there has been 'no change in the law, no newly discovered facts, or any other changed circumstance . . . after the schedulingdeadline for amending pleadings.'" Powell v. Camping World RV Sales LLC, No. 4:13-cv-00195 KGB, 2014 WL 5311525, at *5 (E.D. Ark. Oct. 16, 2014) (quoting Hartis, 694 F.3d at 948). "[T]he failure to recognize the need for amended claims at an earlier date [does] not constitute good cause to excuse the untimeliness of [a] motion to amend." Schenk v. Chavis, 259 F. App'x 905, 908 (8th Cir. 2008); see also Davis v. City of St. John, 182 F. App'x 626, 627 (8th Cir. 2006) (affirming denial of motion for leave to amend where "[a]lmost all of the information that the [plaintiffs] sought to add to their complaint had been in their possession well before the suit began"). However, good cause may be shown when plaintiff first discovered facts supporting the proposed amended complaint after the amendment deadline expired. See Powell, 2014 WL 5311525, at *5; cf. Trim Fit, LLC v. Dickey, 607 F.3d 528, 532 (8th Cir. 2010) (upholding district court's denial of motion to amend complaint since the need to develop additional facts in order to support new claim at late stage in the proceedings would have prejudiced defendant).

B. Prejudice

As mentioned above and relevant here, the Court should also consider whether the grant of a motion for leave to file an amended complaint would prejudice the nonmoving party. See Doe v. Cassel, 403 F.3d 986, 991 (8th Cir. 2005) ("Delay alone is not enough to deny a motion to amend; prejudice to the nonmovant must also be shown." (quoting Bediako v. Stein Mart, Inc., 354 F.3d 835, 841 (8th Cir. 2004))). For example, "[m]otions that would prejudice the nonmoving party by 'requiring a re-opening of discovery with additional costs, a significant postponement of the trial, and a likely major alteration in trial tactics and strategy' are particularly disfavored." Kozlov v. Associated Wholesale Grocers, Inc., 818 F.3d 380, 395 (8th Cir. 2016) (quoting Steir v. Girl Scouts of the U.S.A., 383 F.3d 7, 12 (1st Cir. 2004)); see also Popp Telcom v. Am. Sharecom, Inc., 210 F.3d 928, 943 (8th Cir. 2000) (noting that prejudice can come in the form of "the burdensof additional discovery and delay to the proceedings"). Additionally, prejudice can be found in "forcing [a party] to re-litigate the dispute on new bases . . . and to incur new rounds of additional and costly discovery, and depriving it of the meaningful value of obtaining summary judgment." Kmak v. Am. Century Cos., Inc., 873 F.3d 1030, 1035 (8th Cir. 2017) (quoting Sanders v. Venture...