Opinion
Case No. 2:03-CV-00671-TS.
June 23, 2004
Order Affirming Magistrate Judge's Order Denying Plaintiff's Motion For Leave To File Amended Complaint
This matter is before the Court for consideration of Plaintiff's Objections To Magistrate Judge's Order Denying Plaintiff's Motion For Leave To File Amended Complaint (hereinafter, "Motion to Amend"). The Motion to Amend was denied on March 4, 2004 by Magistrate Judge Brooke C. Wells. Plaintiff had moved to amend his complaint so that he might correct an error regarding the date on which he filed a charge of discrimination with the Utah Labor Commission, Anti-discrimination and Labor Division ("UALD") and the Equal Employment Opportunity Commission ("EEOC").
This Court must determine the appropriate standard of review, which is dictated by whether or not the Magistrate Judge's Order was dispositive. The Plaintiff contends that the Magistrate's Order is functionally dispositive of his case because if the date currently listed in his complaint is used as the date he filed his charge of discrimination, then his charge was untimely, and he therefore cannot bring a lawsuit in federal court based on that charge. In determining whether the Magistrate Judge's Order Denying Plaintiff's Motion to Amend is dispositive, "we apply a functional equivalency test to see if a particular motion has the same practical effect as a recognized dispositive motion." Vogel v. U.S. Office Products Co., 258 F.3d 509 (6th Cir. 2001). Pursuant to Fed.R.Civ.P. 72, a District Court Judge "shall make a de novo determination" on the matter if the Magistrate's Order is found to be dispositive or functionally dispositive. For non-dispositive pretrial matters, this Court reviews the Magistrate Judge's order under a "clearly erroneous or contrary to law" standard of review. See Fed.R.Civ.P. 72(a); 28 U.S.C. § 636(b)(1)(A); see also First Union Mortgage Corp. v. Smith, 229 F.3d 992, 995 (10th Cir. 2000). The standard of review for non-dispositive matters is the more deferential standard of review because it requires this Court to affirm the Magistrate's ruling "unless it is left with the definite and firm conviction that a mistake has been committed." Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988). Because this Court's conclusion on this matter is the same irrespective of which standard of review is used, the Court will assume without ruling that the Magistrate's Order was functionally dispositive and will utilize the less deferential de novo standard of review.
The effect of the Magistrate's March 4, 2004 Order is that (1) the Plaintiff cannot amend his complaint to change the date on which his charge of discrimination was filed from December 18, 2002 to December 24, 2002; and (2) the Plaintiff's assertion that an intake questionnaire should be treated as the charge is rejected.
This Court affirms the Magistrate Judge's ruling to deny the Plaintiff's Motion to Amend on grounds that granting such a motion would have been futile. See Foman v. Davis, 371 U.S. 178, 182 (1962) (stating that "futility of amendment" is an adequate reason to deny leave to amend). Granting the Plaintiff's Motion to Amend would be futile as the Plaintiff has nothing to gain from an amendment that reflects his charge of discrimination was filed on December 24, 2002, instead of December 18, 2002. Even if amended to reflect this change, the Plaintiff's charge would still be outside the statutory 300 day limitations period for filing an EEOC charge, therefore the amendment is rightly considered futile. See 29 U.S.C. § 626(d)(2).
This Court also approves the Magistrate Judge's decision to reject the Plaintiff's argument that the submission of an intake questionnaire to the UALD constitutes a charge filed with the EEOC. The Tenth Circuit has stated that an intake questionnaire will not be treated as a charge when the questionnaire indicates that it is not intended as the charge and there are no other indications to the EEOC that it will serve as the charge. SeePersik v. Manpower Inc., 2003 WL 23098617, *3-4 (10th Cir. 2003) (rejecting appellant's argument that the questionnaire date should serve as the charge filing date). The Plaintiff's contention that the Magistrate Judge improperly relied on the Tenth Circuit's decision in Persik is not convincing.
The Plaintiff argues the Magistrate's use of Persik is inappropriate because (1) the decision is unpublished, and (2) the Plaintiff believes it was wrongly decided.
The Tenth Circuit rules expressly permit citation of an unpublished decision if "(1) it has persuasive value with respect to a material issue that has not been addressed in a published opinion; and (2) it would assist the court in its disposition."Townsend v. Lumbermens Mut. Cas. Co., 294 F.3d 1232, 1239 (10th Cir. 2002) (citing 10th Cir.R. 36.3(B)). This Court finds that Persik squarely meets both of these criteria, and the Magistrate Judge's reliance on this opinion was not erroneous. The Magistrate Judge correctly found that, based on the Tenth Circuit's ruling on nearly identical facts in Persik, the date of the Plaintiff's submission of an intake questionnaire was irrelevant with respect to whether his charge was timely filed.
For these reasons, it is ORDERED that Plaintiff's Objections To Magistrate Judge's Order Denying Plaintiff's Motion For Leave To File Amended Complaint are overruled and the Magistrate Judge's Order is AFFIRMED.