United States District Court, D. Maryland
Khalilah Johnson (“Plaintiff”) filed this
employment discrimination case against her former employer,
Defendant United Parcel Services, Inc. ("UPS"). On
September 18, 2019, this case was transferred to my docket. I
have reviewed Plaintiff's Motion for Leave to File Second
Amended Complaint and supporting exhibits (collectively, the
“Motion”), ECF 47, Defendant's Opposition,
ECF 51, and Plaintiff's Reply, ECF 59. No. hearing is
necessary. See Loc. R. 105.6 (D. Md. 2018). For the
reasons stated herein, Plaintiff's motion will be denied.
27, 2017, Plaintiff, as a self-represented litigant, filed
her original Complaint against UPS, alleging (1) employment
discrimination on the basis of her religion; and (2)
disability discrimination. ECF 1. Approximately six months
later, on December 15, 2017, Plaintiff's newly retained
counsel filed an Amended Complaint, ECF 13. The Amended
Complaint eliminates the claim of disability discrimination,
id. ¶ 25, but asserts three counts. Count I
alleges that UPS retaliated against Plaintiff for making
complaints to UPS about discrimination on the basis of her
religion, Seventh Day Adventist. Id. ¶¶
1-8. Count II alleges that UPS retaliated against Plaintiff
for requesting, and being awarded, accommodations for her
religious obligations. Id. ¶¶ 9-17. Count
III alleges that UPS subjected Plaintiff to a hostile work
environment on the basis of her religion. Id.
¶¶ 18-24. Specifically, Plaintiff worked as a
delivery truck driver for UPS, and she alleges that UPS's
discriminatory conduct consisted of overloading and failing
to organize the truckloads she was assigned for delivery,
which placed her in danger of injury and extended her workday
beyond the time she needed to leave under the terms of her
religious accommodation. Id.
April 9, 2019, Plaintiff filed the instant Motion. ECF 47. In
the proposed filing, Plaintiff seeks to add four counts.
Id. Count IV alleges that UPS fraudulently filed a
2015 W-2 for Plaintiff, grossly overstating her amount of
wages, in violation of 26 U.S.C. § 7434 (2012). ECF
47-1, ¶¶ 30-43. Count V alleges that the fraudulent
W-2 constituted an additional example of retaliatory conduct.
Id. ¶¶ 44-54. Count VI alleges that the
fraudulent W-2, and the denial of Plaintiff's request for
a light duty assignment between July 20, 2015 and December
31, 2015, contributed to the hostile work environment
Plaintiff experienced. Id. ¶¶ 55-59. Count
VII seeks a declaratory judgment that a settlement agreement
the parties executed to resolve Plaintiff's Workers
Compensation claim does not bar the claims she asserts in the
proposed Second Amended Complaint. Id. ¶¶
60-74. The Second Amended Complaint also seeks to add certain
factual allegations in Count III. Id. ¶ 22.
question of whether Plaintiff's amendment is appropriate
highlights the occasional tension between two Federal Rules
of Civil Procedure. Rule 15(a)(2) states that the Court
“should freely give leave [to amend] when justice so
requires.” However, once the Court has set a scheduling
order and the amendment would require a modification, Rule
16(b)(4) dictates that the “schedule may be modified
only for good cause and with the judge's consent.”
See Nourison Rug Corp. v. Parvizian, 535 F.3d 295,
298 (4th Cir. 2008).
Nourison, like in the instant case, a party sought
amendment of its pleading after the expiration of the
deadline in the scheduling order. Id. at 297. The
Fourth Circuit noted that, “Given their heavy case
loads, district courts require the effective case management
tools provided by Rule 16.” Id. at 298.
Accordingly, the Fourth Circuit required that the party
seeking to modify the scheduling order meet the good cause
requirement of Rule 16(b)(4), before considering the standard
for amendment of a pleading in Rule 15(a)(2). Id.
(“[A]fter the deadlines provided by a scheduling order
have passed, the good cause standard must be satisfied to
justify leave to amend the pleadings.”); see also
Cook v. Howard, 484 Fed.Appx. 805, 814-15 (4th Cir.
2012) (“[U]nder Rule 16(b)(4), a party must first
demonstrate ‘good cause' to modify the scheduling
order deadlines, before also satisfying the Rule 15(a)(2)
standard for amendment.”). To establish good cause, the
party seeking to amend the scheduling order must “show
that the deadlines cannot reasonably be met despite the
party's diligence,' and whatever other factors are
also considered, ‘the good-cause standard will not be
satisfied if the [district] court concludes that the party
seeking relief (or that party's attorney) has not acted
diligently in compliance with the schedule.'”
Cook, 484 Fed.Appx. at 815 (quoting 6A Charles Alan
Wright, Arthur R. Miller, & Mary Kay Kane, Federal
Practice and Procedure § 1522.2 (3d ed. 2010)).
Plaintiff has not proffered good cause for her failure to
include her W-2 and light duty-related claims when she filed
her Amended Complaint in December, 2017. Clearly, she knew of
those claims by that date, because she would have received
the W-2 form in question in 2016, and the alleged denial of
light duty occurred in the latter half of 2015. Moreover,
Plaintiff included those allegations in communications to her
EEOC claims investigators in 2016 and 2017. ECF 59-2 at 3.
Despite full knowledge of the factual basis for the claims,
neither Plaintiff in her original Complaint, nor
Plaintiff's counsel in her Amended Complaint, chose to
assert any claims relating to the W-2 or the denial of light
proffered explanation for the delay is that she did not
“ascertain for certain" until the discovery period
that her wages had been over-reported. ECF 47 at 5; see
also ECF 59 at 1 (suggesting that she had obtained
"hard, irrefutable evidence" in discovery).
Certainty is not the standard for notice pleading.
See Fed. R. Civ. P. 11(b)(3) (requiring that
“the factual contentions have evidentiary support or,
if specifically so identified, will likely have evidentiary
support after a reasonable opportunity for further
investigation or discovery”); see also EEOC v.
Morningside House of Ellicott City, LLC., No.
JKB-11-2766, 2012 WL 1655324, at *2-3 (D. Md. May 9, 2012)
(finding that Plaintiff failed to establish good cause to
amend its Complaint after the amendments deadline because it
“likely could have pled its proposed retaliation charge
in the original complaint, ” and
“certainly” could have before the deadline).
Judge Russell's Scheduling Order provided a deadline of
December 10, 2018 for amendment of pleadings. ECF 30. The
parties knew that they could request amendments to the
Scheduling Order, and in fact jointly requested one such
amendment on November 7, 2018, but did not seek to extend the
deadline for the parties to amend their pleadings. ECF 31.
Plaintiff's present contention, then, that the
Court's date for amendment of pleadings was unfair, is
unavailing. “[A] judge's scheduling order is not a
frivolous piece of paper, idly entered, which can be
cavalierly disregarded by counsel without peril.”
Potomac Elec. Power Co. v. Elec. Motor Supply, Inc.,
190 F.R.D. 372, 375 (D. Md. 1999) (quoting Gestetner
Corp. v. Case Equip. Co., 108 F.R.D. 138, 141 (D. Me.
even had Plaintiff's Motion for Leave to file the Second
Amended Complaint been adjudicated shortly after it became
ripe, it would have necessitated alterations to the
scheduling order to permit discovery on new claims that could
have been brought sixteen months prior, when the Amended
Complaint was filed. In the case's current posture,
discovery would have to be reopened just days before the
parties' dispositive motions are due. See ECF 68
(establishing a dispositive motions deadline of October 7,
2019). In light of Plaintiff's lack of diligence in
asserting her new proposed claims before the Scheduling
Order's deadline, lack of good cause for the delay, and
the effect on the case schedule if her motion were to be
granted, her motion to amend the complaint to add counts
IV-VII will be denied.
Plaintiff's proposed changes to the existing three claims
for relief would also require additional discovery. While the
Amended Complaint limited the alleged hostile environment to
the overpacking of Plaintiff's delivery trucks, the
proposed amendments within Count III state, “Defendant
discriminated against Plaintiff in terms and conditions of
employment in any manner shown by evidence produced during
discovery” and “Defendant's [religious]
accommodation provided was not reasonable or adequate.”
ECF 47-1, ¶ 22(E), (G). Because those allegations
greatly expand the scope of the hostile environment claim
Plaintiff asserted in her Amended Complaint in December,
2017, her motion to amend at this late date will be denied.
reasons set forth above, Plaintiff's Motion for Leave to
File Second Amended Complaint, ECF 47, is DENIED. Despite the
informal nature of this letter, it should be flagged as an
Opinion and docketed as an Order.
STEPHANIE A. GALLAGHER UNITED ...