Opinion
Cause No. 1:01-CV-347.
January 24, 2002
MEMORANDUM OF DECISION AND ORDER
I. Introduction
This matter is before the Court on the motion of the pro se plaintiff, Dennis Hollowell (the "Plaintiff"), for leave to amend his Complaint to add a claim of retaliation under the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. ("ADEA"), filed October 30, 2001.
The defendant, International Mills Service, Inc. (the "Defendant") filed a response opposing the Plaintiff's motion on January 4, 2002. The Plaintiff filed a reply on January 16, 2002. The parties have also attached various documents to their submissions.
For the reasons hereafter provided, the Plaintiff's motion to amend will be GRANTED.
II. Procedural and Factual Background
This cause of action arises from the Plaintiff's December 2000 discharge from the employment of the Defendant. In response, the Plaintiff filed an initial charge with the EEOC in January 2001.
The EEOC issued a Notice of Right to Sue letter on the Plaintiff's discriminatory discharge claim on June 21, 2001. (See June 21, 2001, Notice of Right to Sue.)
Subsequently, the Plaintiff attempted to find new work, but no prospective employer hired him and apparently few even responded to his employment application and phone calls. The Plaintiff apparently suspected the Defendant was responsible for the lack of interest, and to investigate the matter, he utilized a family friend employed by Fort Wayne Tax Service (the "Tax Service") to call the Defendant for a "job reference."
During this "test" reference check, the Plaintiff's former supervisor allegedly stated that he "couldn't comment on [the Plaintiff] right now because [the Defendant] was in litigation on an age discrimination suit." (May 1, 2001, EEOC Charge; June 14, 2001, Letter.)
Upon learning this, the Plaintiff filed another charge with the EEOC for retaliation under the ADEA (the "retaliation claim"), and the EEOC issued a Notice of Right to Sue letter on his retaliation claim on September 18, 2001.
On September 21, 2001, the Plaintiff filed suit on his discriminatory discharge claim, and after the Defendant filed its answer, he sought leave to amend his Complaint to add the retaliation claim.
There is no indication when the Plaintiff actually received his Notice of Right to Sue letter, however, in his motion for leave to amend, he alleges that he received the notice of the right to sue letter for the retaliation claim after he filed his complaint. (Pl.'s "Request for Motion to Amend," ¶ 2.)
III. Discussion
Since the Defendant has filed an Answer, the Plaintiff must seek leave of Court to amend his Complaint. Fed.R.Civ.P. 15(a). Rule 15(a) provides that leave to amend a complaint "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). "Amendments, although liberally granted, rest within the sound discretion of the trial court." Massarsky v. General Motors Corp., 706 F.2d 111, 125 (3d Cir. 1983), cert. denied, 104 S.Ct. 348 (1984). This liberal policy of granting amendments is based in part on the belief that decisions should be made whenever possible on the merits, absent countervailing considerations. Staren v. American Nat'l Bank Trust Co., 529 F.2d 1257 (7th Cir. 1976); Gregg Communications Sys., Inc. v. American Tel. Tel. Co., 98 F.R.D. 715, 720 (N.D.Ill. 1983). The countervailing considerations which may weigh against allowing an amendment of a pleading were outlined by the United States Supreme Court in Foman v. Davis, 371 U.S. 178, 182 (1962), as follows:
If the underlying facts or circumstances relied upon by a [party] may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc., — the leave sought should, as the rules require, be "freely given."
Here, the Defendant appears to assert that the Plaintiff's proposed amendment is futile. "A proposed amendment is futile if it serves no legitimate purpose or is without legal merit." Savoy v. White, 139 F.R.D. 265, 267 (D.Mass. 1991). The standard for determining futility has been likened to that of a motion to dismiss. Universal Mfg. Co. v. Douglas Press, Inc., 770 F. Supp. 434, 435 (N.D.Ill. 1991) (citing Glick v. Koenig, 766 F.2d 265, 268-69 (7th Cir. 1985)). So, the Plaintiff's motion for leave to amend should be denied only if it appears "beyond doubt that the plaintiff can prove no set of facts in support of [his] claim which would entitle [him] to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The court accepts all well pleaded facts in the proposed amended complaint as true and views all allegations in a light most favorable to the Plaintiff. Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030, 1039 (7th Cir. 1987).
The Plaintiff is asserting a retaliation claim under the ADEA, which specifically prohibits retaliation. At this stage, the Plaintiff could simply allege the conclusion that he suffered retaliation, see Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998), but if he pleads underlying facts, he may plead himself "out of court by alleging facts that establish defendant's entitlement to prevail." Id.; Henderson v. Sheahan, 196 F.3d 839, 845 (7th Cir. 1999)
Under the ADEA, it is unlawful "to discriminate against any individual . . . because such individual . . . has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this chapter." 29 U.S.C. § 623(d); Sauzek v. Exxon Coal USA, Inc., 202 F.3d 913, 918 (7th Cir. 2000).
Indeed, it is this latter proposition that the Defendant seems to be arguing. Specifically, the Defendant contends the Plaintiff has alleged facts which fail to set forth a prima facie case of retaliation.
To establish his prima facie case for retaliation, the Plaintiff must allege that (1) he exercised a protected right; (2) the employer took an adverse employment action against him; and (3) there is a causal connection between the adverse employment action and the protected activity. Hall v. Bodine Electric Co., ___ F.3d ___, 2002 WL 15815, *7 (7th Cir. Jan. 8, 2002). Here, the Plaintiff engaged in a protected activity when he filed an EEOC charge for the alleged discrimination. Moreover, the Defendant apparently concedes, at least for the purposes of the present motion, that it volunteered to the Tax Service the fact that the Plaintiff had filed a discrimination suit against it. However, the Defendant contends that because the Plaintiff cannot establish the necessary causal connection, his claim fails as a matter of law, and his amendment would be futile.
Post-termination acts by the employer, so long as they bear "some nexus to the plaintiff's employment or efforts to secure future employment," are an actionable form of retaliation. Veprinsky v. Fluor Daniel, Inc., 87 F.3d 881, 891 (7th Cir. 1996); see also Ruedlinger v. Jarrett, 106 F.3d 212, 214 (7th Cir. 1997); Murphy v. Village of Hoffman Estates, 959 F. Supp. 901, 907 (N.D.Ill. 1997);. However, not all harmful conduct by an employer is actionable as retaliation, an employee still must ultimately prove an "employment impairment that evidences actionable retaliation." Veprinsky, 87 F.3d at 891; Reed v. Shepard, 939 F.2d 484, 493 (7th Cir. 1991).
The Defendant contends that because the Plaintiff never actually sought employment with the Tax Service, the Defendant's negative reference could not have resulted, a fortiori, in an employment impairment.
The Defendant relies on Moreno-Nicholas v. City of Indianapolis, 2000 WL 1707970, *4 (S.D.Ind. Oct. 26, 2000) for the proposition that where a plaintiff receives a negative reference in response to a so-called "test" reference check, no employment impairment can be shown. The court stated "[b]ecause there is no evidence that [the former employer's] statement . . . was related to any employment impairment . . . the statement on its own does not provide a basis for her Title VII claim as a matter of law." Id. at *5 (emphasis added).
However, Moreno-Nicholas was decided on a motion for summary judgment after full discovery had been completed. See id. at *2-3. In contrast, here, in the context of a motion to amend, the relevant inquiry is simply whether the Plaintiff can make out any facts to support his amended complaint. See Gomez, 811 F.2d at 1039. Indeed, the Plaintiff has alleged that he was retaliated against in violation of the ADEA, that he applied to numerous potential employers who presumably conducted reference checks with the Defendant, and on at least one occasion, the Defendant gave a thinly veiled negative reference which was clearly connected to his ADEA claim. See, e.g., Sauzek v. Exxon Coal USA, 202 F.3d 913, 918 (7th Cir. 2000) (a retaliation plaintiff must show only that the protected activity and the employer's adverse action were "not wholly unrelated."); Hunt-Golliday v. Metropolitan Water, 104 F.3d 1004, 1014 (7th Cir. 1997); Holland v. Jefferson Nat. Life Ins. Co., 883 F.2d 1307, 1314, 1315 n. 4 (7th Cir. 1989).
Indeed, taken in the light most favorable to the Plaintiff, his amended complaint alleges he was essentially blacklisted by the Defendant for filing his charge with the EEOC. See, e.g., Dole v. Local 1942, Int'l Brotherhood of Elec. Workers, AFL-CIO, 870 F.2d 368, 372 (7th Cir. 1989) (retaliation against worker may take form of blacklisting, economic duress and social ostracism); Murphy, 959 F. Supp. at 907 (disclosure of confidential information constituted post-termination retaliatory conduct related to the plaintiff's employment); Sparrow v. Piedmont Health Sys. Agency, Inc., 593 F. Supp. 1107, 1118-19 (M.D.N.C. 1984) ("lack of a customary recommendation from a former employer severely disadvantages a person seeking employment"). After all, at this point, we can at least infer that if the Defendant gave a negative reference to someone it thought might hire the Plaintiff, it likely gave the same statement to other actual potential employers. See, e.g., EEOC v. L.B. Foster Co., 123 F.3d 746, 754 (3d Cir. 1997) ("An employer who retaliates can not escape liability merely because the retaliation falls short of its intended result.")
Indeed, the Plaintiff appears to suggest, and we think correctly so, that he should be allowed to discover what the Defendant told his actual prospective employers. After all, at this point the Plaintiff need only show a causal connection between his protected activity (his EEOC charge) and the Defendant's adverse action (the negative reference). See, e.g., L.B. Foster Co., 123 F.3d at 754 (improper for district court to focus on the prospective employer instead of the former employer in retaliation analysis); Hashimoto v. Dalton, 118 F.3d 671, 676 (9th Cir. 1997) (a negative employment reference that fails to affect the prospective employer's decision whether to hire the plaintiff is actionable); Sparrow, 593 F. Supp. at 1118-19 (plaintiff made a prima facie showing of retaliation when the employer failed to give a job recommendation because of a pending EEOC charge, even though she failed to show any harm as a result). Thus, since the Plaintiff can arguably make out a prima facie case, we will not deem his claim to be futile, and his motion to amend will be granted.
There is some case law supporting the proposition that a plaintiff fails to establish a prima facie case when there is no evidence that the negative reference actually affected his prospective employers' decision not to hire him. See, e.g., Sarno v. Douglas Elliman-Gibbons Ives, Inc., 183 F.3d 155, 160 (2d Cir. 1999) (citing Bailey v. USX Corp., 850 F.2d 1506, 1508 (11th Cir. 1988)). Indeed, the Seventh Circuit even alluded to such a finding in Koelsch v. Beltone Electronics Corp., 46 F.3d 705, 709 (7th Cir. 1995), a case holding that post-termination events are not actionable, when it stated in dicta that an employer's comment was not retaliatory when it had no impact on the plaintiff's efforts to seek employment. However, the following year, the Seventh Circuit changed its position on post-termination events, and concluded that "former employees, in so far as they are complaining of retaliation that impinges on their future employment prospects or otherwise has a nexus to employment, do have the right to sue their former employers." Veprinsky, 87 F.3d at 891. Indeed, the Seventh Circuit later emphasized that to establish his prima facie case, the Plaintiff need only allege that the Defendant's retaliatory acts impinge on his future employment. Ruedlinger, 106 F.3d at 213. Thus, we seriously doubt that Koelsch correctly states the Seventh Circuit's current view on the subject.
IV. Conclusion
Therefore, the Plaintiff's motion for leave to amend his complaint and add retaliation claims under the ADEA is hereby GRANTED. All discovery is to be completed on or before April 24, 2002, and all dispositive motions are due by May 24, 2002.