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Peterson v. Scis Air Security Corp.

United States District Court, D. Utah, Central Division

September 27, 2017

LISA C. PETERSON, Plaintiff,
v.
SCIS AIR SECURITY CORP., and LSG SKY CHEFS, INC. Defendants.

          MEMORANDUM DECISION AND ORDER

          DAVID SAM, SENIOR JUDGE UNITED STATES DISTRICT COURT.

         I. INTRODUCTION

         Plaintiff Lisa C. Peterson moves the court pursuant to Federal Rule of Civil Procedure 15(a)(2) for leave to amend her Complaint to add a claim for Constructive Discharge against her former employer SCIS Air Security Corp. (“SCIS”). Ms. Peterson also seeks leave to amend her Third Claim against LSG Sky Chefs, Inc. (“Sky Chefs”) for Negligent Employment.

         Underlying Ms. Peterson's claims are allegations that she was subjected to sexual harassment and retaliation in violation of Title VII during her employment with SCIS, including harassment by employees of Sky Chefs. Plaintiff was employed by SCIS as a Security Ramp Coordinator. SCIS provides security services for Sky Chefs, who in turn provides in-flight meals for various airlines at Salt Lake International Airport.

         On March 9, 2017, the Court granted Sky Chefs' motion to dismiss the claims against it. All claims against Sky Chefs, except the third, were dismissed with prejudice. The third claim for negligent employment was dismissed without prejudice.

         As Sky Chefs note, the Proposed Amended Complaint (“PAC”) appears to be “nearly identical to [Plaintiff's] initial Complaint with respect to Sky Chefs .... with the exception of the identification of a Sky Chefs manager in paragraph 37 and the insertion of new paragraphs 38 and 39" and the addition of “a Seventh Cause of Action for constructive discharge against Defendant SCIS.” Sky Chefs' Mem. Opp'n at 3.

         II. DISCUSSION

         Although, Federal Rule of Civil Procedure 15 provides that leave to amend should be given “when justice so requires, ” denial of leave may be appropriate for “‘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, futility of the amendment, etc.'” Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).

         A. Futility

         Both SCIS and Sky Chefs urge that leave to file the proposed amended complaint should be denied as futile.

         1. SCIS

         Ms. Peterson seeks to add a claim against SCIS for constructive discharge. Exhaustion of administrative remedies is a jurisdictional prerequisite to suit under Title VII. Alcivar v. Wynne, 268 F.Appx. 749, 753 (10th Cir.), cert. denied, 555 U.S. 877 (2008). Documentary evidence now before the Court suggests that Ms. Peterson has administratively exhausted her remedies. Therefore, her Motion for Leave to Amend Complaint with respect to SCIS will not be denied for reasons of futility.

         2. Sky Chefs

         Sky Chefs assert that because the proposed Third Claim for Relief for Negligent Employment would still be subject to dismissal, granting leave to amend would be futile. “[C]ourts analyze the proposed amendment under the standard for a motion to dismiss.” Shahmaleki v. Kansas State University, 147 F.Supp.3d 1239, 1243 (D. Kan. 2015); Anderson v. Suiters, 499 ...


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