United States District Court, D. Utah, Central Division
J. Shelby District Judge
REPORT AND RECOMMENDATION TO DENY PLAINTIFF'S
MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT
J. Furse United States Magistrate Judge
September 24, 2018, pro se Plaintiff Kristina Zemaitiene
filed a Motion for Leave to File Second Amended Complaint.
(Mot. for Leave to File 2d Am. Compl. (“Mot.”),
ECF No. 40.) Ms. Zemaitiene seeks leave to amend her
Complaint to add a claim for constructive discharge and to
include additional facts to support her gender discrimination
claim. (Id. at 2.) Defendant the Corporation of the
Presiding Bishop of the Church of Jesus Christ of Latter-Day
Saints, doing business as Deseret Industries (“Deseret
Industries”), opposes Ms. Zemaitiene's Motion on
the grounds that her request to amend is futile and untimely.
(Def.'s Opp'n to Pl.'s Mot. for Leave to File 2d
Am. Compl. (“Opp'n”) 1-8, ECF No. 41.) On
October 9, 2018, Ms. Zemaitiene filed her Reply. (Reply to
Def.'s Opp'n to Pl.'s Mot. for Leave to File 2d
Am. Compl. (“Reply”), ECF No. 44.) On October 25,
2018, the undersigned held argument on Ms. Zemaitiene's
Motion and took the motion under advisement. (See
Minute Entry, ECF No. 45.)
considering the parties' briefing, oral argument, and the
applicable law, the undersigned finds Ms. Zemaitiene's
proposed constructive discharge claim futile because she
failed to exhaust her administrative remedies with respect to
that claim. The undersigned further finds Ms.
Zemaitiene's request to amend to include supplemental
facts underlying her gender discrimination claim untimely
because she seeks to add facts known to her at the time she
commenced this action approximately three years ago, and the
First Amended Complaint already fairly includes those facts
in the pleading of the case. Accordingly, the undersigned
RECOMMENDS the District Judge DENY Ms. Zemaitiene's
December 20, 2016, Ms. Zemaitiene initiated this action,
(Compl., ECF No. 3), and on April 10, 2018, she filed her
First Amended Complaint (1st Am. Compl., ECF No. 31). In the
First Amended Complaint Ms. Zemaitiene asserts her former
employer Deseret Industries violated her rights under Title
VII of the Civil Rights Act of 1964 (“Title VII”)
and the Americans with Disabilities Act of 1990 (“the
ADA”). (See 1st Am. Compl., ECF No. 31.)
allegations arise out of Ms. Zemaitiene's former
employment at Deseret Industries, a nonprofit thrift store.
(See generally 1st Am. Compl., ECF No. 31.) In
November 2013, Ms. Zemaitiene began working for Deseret
Industries. (Id. at ¶ 16.) Ms. Zemaitiene
suffers from a disability that limits her ability to perform
strenuous work. (Id. at ¶ 17.) As a result, and
upon Ms. Zemaitiene's request for an accommodation,
Deseret Industries assigned her to work in its clothing
processing department where she worked twenty-eight hours a
week. (Id. at ¶¶ 18, 21.) Ms. Perry
supervised Ms. Zemaitiene and served as her job coach.
(Id. at ¶ 19.)
Zemaitiene “shares non-religious views.”
(Id. at ¶ 32.) On or around March 6, 2014, she
complained to Ms. Perry that some of her co-workers tried to
proselytize to her. (Id. at ¶¶ 35-36.) A
few weeks later, Ms. Perry transferred Ms. Zemaitiene to the
“domestics section” within the clothing
processing department where Ms. Zemaitiene had to handle
“heavy merchandise” even though Ms. Perry
“knew about her duty to accommodate Ms.
Zemaitiene's disability and physical limitations.”
(Id. at ¶¶ 37-40.)
April 2014, Deseret Industries loaned Ms. Zemaitiene to its
business partner, Globus Relief. (Id. at ¶ 42.)
When Ms. Zemaitiene returned to Deseret Industries in May
2014, she informed Ms. Perry that a co-worker from Globus
Relief sexually harassed her, and she contemplated filing an
EEOC charge. (Id. at ¶ 43.) Following her
complaint, Deseret Industries did not pay Ms. Zemaitiene for
the work she performed at Globus Relief. (Id. at
2014, Ms. Zemaitiene filed a Charge of Discrimination and
Retaliation against Deseret Industries. (Charge of
Discrimination, July 28, 2014, Ex. B, ECF No. 41 at
On or around August 2014, Deseret Industries received Ms.
Zemaitiene's first Charge of Discrimination and
subsequently reduced her working hours and excluded her from
certain training and development opportunities. (1st Am.
Compl. ¶¶ 52-64, ECF No. 31.) In December
2014, Deseret Industries accused Ms. Zemaitiene of
interfering with a shoplifter's arrest, filed criminal
charges against her, suspended her from work, and banned her
from entering all Deseret Industries stores. (Id. at
¶¶ 65- 74.) On January 2, 2015, Ms. Zemaitiene
ended her employment with Deseret Industries. (Id.
at ¶ 75.)
Zemaitiene's First Amended Complaint alleges Deseret
Industries engaged in gender discrimination, disability
discrimination, and retaliation for protected activities.
(Id. at ¶¶ 76-101.)
Rule of Civil Procedure 15(a)(2) provides that once the
deadline for amending a pleading as a matter of course has
passed, “a party may amend its pleading only with the
opposing party's written consent or the court's
leave.” Fed.R.Civ.P. 15(a)(2). District courts
“should freely give leave when justice so
requires.” Fed.R.Civ.P. 15(a)(2). A district court may
deny “leave to amend only for reasons 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, [or]
futility of [the] amendment.' ” United
States ex rel. Ritchie v. Lockheed Martin Corp., 558
F.3d 1161, 1166 (10th Cir. 2009) (alterations in original)
(quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).
A district court's decision to deny leave to amend under
Rule 15 falls within its discretion, and the court of appeals
reviews the decision only for abuse of discretion.
‘A proposed amendment is futile if the complaint, as
amended, would be subject to dismissal.' ” Lind
v. Aetna Health, Inc., 466 F.3d 1195, 1199 (10th Cir.
2006) (quoting Bradley v. J.E. Val-Mejias, 379 F.3d
892, 901 (10th Cir. 2004)); see also Watson ex rel.
Watson v. Beckel, 242 F.3d 1237, 1239-40 (10th Cir.
2001) (“A proposed amendment is futile if the
complaint, as amended, would be ...