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Zemaitiene v. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints

United States District Court, D. Utah, Central Division

June 13, 2019

KRISTINA ZEMAITIENE, Plaintiff,
v.
CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, doing business as DESERET INDUSTRIES, and MELANIE PERRY, an individual, Defendants.

          Robert J. Shelby District Judge

          REPORT AND RECOMMENDATION TO DENY PLAINTIFF'S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

          Evelyn J. Furse United States Magistrate Judge

         On 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[1] held argument on Ms. Zemaitiene's Motion and took the motion under advisement. (See Minute Entry, ECF No. 45.)

         After 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 Motion.

         FACTUAL BACKGROUND

         On 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.)

         These 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.)

         Ms. 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.)

         In 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 ¶ 44.)

         In July 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 29.)[2] 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.)

         Ms. Zemaitiene's First Amended Complaint alleges Deseret Industries engaged in gender discrimination, disability discrimination, and retaliation for protected activities. (Id. at ¶¶ 76-101.)

         LEGAL STANDARD

         Federal 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. Id.

         “ ‘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 ...


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