Opinion
Civil No. 03-193-B-W.
August 9, 2005
ORDER ON MOTION FOR LEAVE TO AMEND COMPLAINT
Because the Plaintiff has failed to meet the good cause standard of Fed.R.Civ.P. 16(b), this Court DENIES the Plaintiff's Motion for Leave to Amend Complaint (Docket # 39) to assert a new theory of liability, a disparate impact claim, after the deadline for amendment of pleadings has passed, discovery is over, a dispositive motion has been filed, and a Recommended Decision has issued.
I. STATEMENT OF FACTS
On November 10, 2003, Plaintiff Peter R. Clifford filed a Complaint (Docket # 1) against JoAnne B. Barnhart, the Commissioner of the Social Security Administration (SSA), alleging that the SSA discriminated against him due to his age and disability. Consisting of one count, the Complaint claimed the SSA failed to hire Mr. Clifford for three positions, because he did not have "current" knowledge and experience, and the sole reason he did not have such current knowledge was his disability. It contended the SSA could have accommodated him with minimal training. The SSA answered on January 15, 2004, denying the essential allegations of the Complaint. Answer (Docket # 4)
With its Answer, the SSA moved for summary judgment, treating the claim as alleging disparate treatment and asserting it had legitimate, non-discriminatory reasons for not selecting Mr. Clifford. Mot. for Summ. J. (Docket # 5). Mr. Clifford opposed the motion on the ground that there were "substantial and genuine issues of material fact in dispute concerning whether the defendant's proferred reasons for Clifford's non-selection are legitimate and non-discriminatory." Pl.'s Objection to Mot. for Summ. J. (Docket # 7) at 11. On August 13, 2004, this Court dismissed SSA's motion as premature. Order Dismissing Def.'s Mot. for Summ. J. (Docket # 11).
After the August 13, 2004 dismissal, the Court issued a Scheduling Order (Docket # 12) dated August 19, 2004. The order established a November 4, 2004 deadline for amending the pleadings, and although the Court amended the Scheduling Order to extend other deadlines, the November 4, 2004 remained in effect. The parties engaged in discovery, which closed on March 17, 2005, and the dispositive motion deadline lapsed on March 24, 2005. See Docket # 15, 16. On March 21, 2005, the case was scheduled for trial on the May 2, 2005 list. See Docket # 17.
The case was removed from the list upon filing of the Motion for Summary Judgment. See Docket # 20.
On March 24, 2005, the SSA again moved for summary judgment. Mot. for Summ. J. (Docket # 18). Reviewing the principles of law applicable to disparate treatment cases, the SSA marshaled facts that it contended were undisputed and asserted its entitlement to summary judgment. Mr. Clifford responded on April 21, 2005 and argued a disparate impact theory of liability. Pl.'s Objection to Mot. for Summ. J. (Docket # 23). The SSA replied, protesting the introduction of the disparate impact theory of liability into a case that had, in its view, been all along a disparate treatment claim. Reply to Pl.'s Opp'n to the Mot. for Summ. J. (Docket # 30). Magistrate Judge Kravchuk agreed and concluded that Mr. Clifford could not pursue a disparate impact claim "because the disparate impact claim was neither asserted in Clifford's complaint nor exhausted at the administrative level." Recommended Decision on Def.'s Mot. for Summ. J. (Docket # 38) at 14. On July 18, 2005, Mr. Clifford filed an Objection to the Magistrate's Recommended Decision and Findings (Docket # 40) and filed a Motion for Leave to Amend the Complaint to assert a disparate impact theory of liability. The SSA objected. Opp'n to Pl.'s Mot. for Leave to Amend (Docket # 42).
II. DISCUSSION
The amendment of pleadings is addressed in Rule 15(a). See Fed.R.Civ.P. 15(a). After a responsive pleading is served, a party may amend "only by leave of court or by written consent of the adverse party." Id. The court shall grant such motions "freely . . . when justice so requires." Id. Rule 15 must, however, be read in conjunction with Rule 16, which contemplates the establishment of time limits upon the amendment of pleadings. See Fed.R.Civ.P. 16(b)(1). The Advisory Committee Note states that this provision "assures that at some point . . . the pleadings will be fixed." Fed.R.Civ.P. 16 advisory committee note (1983). Rule 16(b) imposes a different standard: Rule 16 schedules shall not be modified "except upon a showing of good cause and by leave of the district judge." Fed.R.Civ.P. 16(b). The First Circuit has noted that "[s]everal courts have held that Rule 16(b)'s `good cause' standard, rather than Rule 15(a)'s `freely given' standard, governs motions to amend filed after scheduling order deadlines." O'Connell v. Hyatt Hotels of P.R., 357 F.3d 152, 154 (1st Cir. 2004) (citations omitted). Rule 16(b)'s good cause standard emphasizes the "diligence of the party seeking the amendment" and "[p]rejudice to the opposing party remains relevant but is not the dominant criterion." Id. at 155.
In support of the motion to amend, Mr. Clifford's counsel filed an affidavit, which simply explains that, although he had been aware of "the under-representation of disabled persons working at SSA" and Mr. Clifford being "separately listed on the list of eligibles given to selecting officials," it was not until after the conclusion of discovery and his preparation of the response to SSA's Motion for Summary Judgment that he "believed and understood that these factors might establish additional theories of discrimination liability." Aff. of James G. Noucas, Jr. (Docket # 39, Ex. 2) at ¶¶ 5, 6, 8. He went on to say that it "was only upon further research and consideration of the under-representation of disabled persons at SSA and the internal promotion policy that I concluded that such facts and policies could establish an additional theory of liability (disparate impact)." Id. at ¶ 10. Mr. Noucas documents his epiphany, but fails to address why it came so late. Mr. Clifford's motion fails to meet the Rule 16(b) good cause standard.
Disparate treatment and disparate impact theories raise different questions of law and fact. See Scheidecker v. Arvig Enters., Inc., 122 F. Supp. 2d 1031, 1044 (D. Minn. 2000) ("Plaintiffs have muddled two distinct causes of action. They cannot recast a disparate treatment claim to establish a disparate impact claim."); see also Rizzo v. PPL Serv. Corp., No. Civ. A. 03-5779, 2005 WL 1397217, at *4-5 (E.D. Pa. June 10, 2005); Buenrostro v. Flight Safety Int'l, Inc., No. Civ. A. SA-99-CA0819FB, 2001 WL 674171, at * 7-8 (W.D. Tex. March 2, 2001); Renaldi v. Mfrs. Traders Trust Co., 954 F. Supp. 614, 620 (W.D.N.Y. 1997); Verney v. Dodaro, 872 F. Supp. 188, 193-94 (M.D. Pa. 1995), aff'd, 79 F.3d 1140 (3d Cir. 1996). The defendant has a right to be apprised of the plaintiff's theory of liability so that it can appropriately tailor its discovery and motion practice. To allow Mr. Clifford to amend his pleading more than seven months after the deadline for amending the pleadings has passed, more than four months after discovery has closed and a dispositive motion has been filed, and after a Recommended Decision has issued would allow the parties to treat the scheduling order as a "frivolous piece of paper idly entered, which can be cavalierly disregarded without peril." O'Connell, 357 F.3d at 155 (quoting Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992)).
In Verney, Judge Caldwell, addressing a similar issue, explained the difference between the two theories:
A disparate impact claim arises when a facially neutral employment policy is applied in such a way as to have an adverse impact on a protected class. A disparate treatment claim occurs when there is proof, either direct or circumstantial, that a Defendant harbored a discriminatory animus against an individual Plaintiff.Verney, 872 F. Supp. at 193.
III. CONCLUSION
In the absence of a showing of good cause, the Plaintiff's Motion for Leave to Amend Complaint is DENIED.
SO ORDERED.