Poitra v. Sch. Dist. No. 1 in the Cnty. of Denver & Colo.

• Decision Date: 21 October 2015
• Docket Number: Civil Action No.: 14-cv-00887-WYD-CBS
• Parties: MICHAEL G. POITRA, Plaintiff, v. SCHOOL DISTRICT NO. 1 IN THE COUNTY OF DENVER AND STATE OF COLORADO, and ANITA MARCHANT, individually and as an employee of DENVER PUBLIC SCHOOLS, Defendants.
• Court: U.S. District Court — District of Colorado

MICHAEL G. POITRA, Plaintiff, v. SCHOOL DISTRICT NO. 1 IN THE COUNTY OF DENVERAND STATE OF COLORADO,and ANITA MARCHANT, individually and as an employee

of DENVER PUBLIC SCHOOLS, Defendants.

Civil Action No.: 14-cv-00887-WYD-CBS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

October 21, 2015

REPORT AND RECOMMENDATION REGARDING PLAINTIFF'S MOTION FOR LEAVE TO AMEND COMPLAINT

Magistrate Judge Shaffer

THIS MATTER comes before the court on Plaintiff Michael G. Poitra's Motion for Leave to Amend Complaint (doc. # 49), filed on June 3, 2015. Plaintiff's proposed First Amended Complaint seeks to assert a new Fourth Claim for Relief for "Wrongful Discharge based on Violation of Public Policy." On June 11, 2015, Defendants School District No. 1 and Anita Marchant filed a Response to Motion for Leave to Amend Complaint (doc. # 52), which was followed by Plaintiff Poitra's Reply on Motion for Leave to Amend Complaint (doc. #53), filed on June 22, 2015.

After carefully considering the parties' briefs, the entire court file and the applicable case law, the court entertained oral argument on the instant motion during a hearing on July 21, 2015. At the conclusion of that hearing, this court advised the parties that it would be recommending that the district court deny Plaintiff's Motion for Leave to Amend Complaint. This Report and Recommendation explains my reasoning.

FACTUAL BACKGROUND

A brief recitation of salient facts will place the instant motion in context. Mr. Poitra was terminated from his position with the Denver Public Schools on April 2, 2013. This action commenced on March 27, 2014, with the filing of a Complaint and Jury Demand (doc. #1) that asserted claims for tortious interference with contract (Claim One), violation of 42 U.S.C. § 1983 (Claim Two), discrimination on the basis of race under Title VII (Claim Three), retaliation pursuant to 42 U.S.C. § 2000e-3(a) (Claim Four), gender discrimination under Title VII (Claim Five), and violation of the Age Discrimination in Employment Act (Claim Six). In his Complaint, Plaintiff alleged that he had "exhausted all administrative remedies and this action is timely filed." See Complaint, at ¶11.

Defendants filed their Answer (doc. #8) on June 1, 2014, in which they denied Mr. Poitra's assertion that he had exhausted all administrative remedies. As a separate affirmative defense, Defendants averred that "[s]ome or all of Plaintiff's claims are barred because he failed to exhaust administrative remedies." The parties' pleading clearly raised exhaustion as a disputed threshold issue in this action.

It also appears to be undisputed that Mr. Poitra filed a Charge of Discrimination with the Colorado Civil Rights Division on May 6, 2013. That charging document alleged that Plaintiff had been subjected to discrimination on the basis of race, color, age and sex. See Exhibit G (doc. #30-7), attached to Defendants' Motion for Summary Judgment. Notably, Mr. Poitra did not check the box for "retaliation" and the narrative portion of his Charge of Discrimination did not describe or specifically refer to retaliatory conduct. On July 31, 2013, Mr. Poitra's counsel sent a preservation demand letter to defense counsel, insisting, in part, that Denver Public Schools preserve "any evidence which may be relevant to the claims in the contemplated litigation of thismatter," including claims for gender discrimination, age discrimination, retaliation, and constitutional violations under 42 U.S.C. § 1983. In the same letter, Plaintiff's counsel alluded to possible "additional state law claims which are supplemental to the federal causes of action, but which arise from the same factual basis, that being his pretextual and discrimination termination from employment by DPS." See Exhibit D (doc. #49-4) attached to Plaintiff's Motion for Leave to Amend Complaint. By July 31, 2013, Plaintiff's counsel certainly believed her client had a viable Title VII retaliation claim, but she also held open the possibility of asserting ancillary or parallel state law claims.

This court held a Fed. R. Civ. P. 16 scheduling conference on June 13, 2014, at which time I set a deadline of July 27, 2014 for moving to join additional parties or to amend pleading. The court also set a discovery cutoff of December 6, 2014 and a dispositive motion deadline of January 15, 2015.¹ All of those deadlines had been proposed by the parties and were not changed in the scheduling order I entered. In that scheduling order, counsel stated that the parties had completed their Fed. R. Civ. P. 26(a)(1) disclosures on or before June 6, 2014. Rule 26(a)(1)(A)(ii) requires a party to provide "a copy - or a description by category and location - of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, control and may use to support its claims or defenses." Given the obvious importance of the exhaustion issue in light of the Defendants' Answer, it is reasonable to presume that Plaintiff's counsel would have produced any documents substantiating her client's claim of exhaustion or immediately initiated steps to secure that critical documentation. Cf. Tolerico v. Home Depot, 205 F.R.D. 169, 175 (M.D. Pa. 2002) (noting that documents on whichplaintiff based her claim of exhaustion "should have been part of [her] initial disclosures under Rule 26(a)(1)).²

On September 3, 2014, approximately three months after the Rule 16 scheduling conference, Plaintiff's counsel contacted an EEOC representative inquiring about an "amended charge" that her client may have submitted to the EEOC prior to commencing the instant litigation. In that email, counsel conceded that "unless we have a retaliation charge, we may have trouble with the retaliation claim in the pending lawsuit." See Exhibit C (doc. #49-3) attached to Plaintiff's Motion for Leave to Amend Complaint. After some delay in receiving a response from her EEOC contact, Plaintiff's counsel sent another inquiry on October 17, 2014, asking "did you find the amended charge with the retaliation charge added for Mr. Poitra." Id. On December 10, 2014, counsel again impressed upon her EEOC contact the need for additional information. Counsel explained that "[w]e are approaching the deadline in our federal case for the dispositive motions and I want to be able to provide the amended retaliation charge to DPS." Id. On December 11, 2014, the EEOC advised Mr. Poitra's attorney that no amended charge asserting retaliation against the Plaintiff had been located in their files. Id.

Defendants filed a Motion for Summary Judgment (doc. # 30) on February 18, 2015, asserting in part that Mr. Poitra's claim for retaliation under Title VI failed as a matter of law because he had not exhausted his administrative remedies regarding that claim. Defendants also argued that Plaintiff could not demonstrate that he engaged in protected activity, which is an essential element for a retaliation claim. Plaintiff filed a Revised Response to Defendant's Motion for Summary Judgment (doc. # 36) on April 1, 2015. In his Revised Response, Mr.Poitra requested an "opportunity to supplement his complaint and substitute a claim for wrongful termination" in the event "the Court determines that the administrative remedies for the Title VII retaliation claim have not been met." Plaintiff requested "ten days within which to file his supplemented complaint should summary judgment as to the retaliation claim be granted."

In the parties' Final Pretrial Order (doc. # 45) filed with the court on April 30, 2015, Mr. Poitra indicated that he "will be filing a motion to supplement his complaint and is contemplating dismissal of a claim." Plaintiff filed the instant motion to amend approximately a month later, on June 3, 2015. Judge Daniel entered an Order (doc. # 55) on September 11, 2015, granting in part and denying in part Defendants' Motion for Summary Judgment. The district court held, in pertinent part, that Mr. Poitra's retaliation claim must be dismissed for lack of subject matter jurisdiction based on his failure to exhaust his administrative remedies with respect to that claim.³ Trial is set to commence in this case on January 12, 2016.

ANALYSIS

While Plaintiff Poitra seeks relief pursuant to Fed. R. Civ. P. 15(a), his motion to amend was filed well beyond the July 27, 2014 deadline established in the scheduling order of June 13, 2014. Accordingly, the court must consider the interplay between Rule 15(a) and Fed. R. Civ. P. 16(b)(4). I am well aware that the Tenth Circuit "has not yet considered whether Rule 16(b)(4) must be met when motions to amend pleadings would necessitate a corresponding amendment of scheduling orders." See United States ex rel. Richie v. Lockheed Martin Corp., 558 F.3d 1161, 1166 (10^th Cir. 2009). However, lower courts in the Tenth Circuit repeatedly have looked toRule 16(b)(4) when a party seeks leave to amend pleadings after the deadline for amending pleadings has passed. See, e.g., Philippus v. Aetna Health, Inc., 2010 WL 148282, at *2-3 (D. Colo. 2010); Texas Instruments, Inc. v. BIAX Corp., 2009 WL 3158155, at *1-2 (D. Colo. 2009); Jenkins v. FMC Technologies, Inc., 2009 WL 1464416, at *1-2 (D. Colo. 2009); Dias v. City and County of Denver, Colorado, 2007 WL 4373229, at *2-3 (D. Colo. 2007). See also Capital Solutions LLC v. Konica Minolta Business Solutions USA, Inc., 2009 WL 3711574, at *8 (D. Kan. 2009) and cases cited therein.

I also am persuaded by the analysis set forth in Sherman v. Winco Fireworks, Inc., 532 F.3d 709 (8^th Cir. 2008). In that case, the defendant moved to amend its answer to plead a new affirmative defense more than seventeen months after the deadline for amending pleadings. The appellate court reversed the jury verdict in favor of the defendant after concluding that the trial court abused its discretion by granting the belated motion to amend in the absence of "good cause" under Rule 16(b)(4). As the court...