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Plott v. Advanced Comfort Technologies, Inc.

United States District Court, D. Utah, Northern Division

December 30, 2019

SHAMINA PLOTT, Plaintiff,
v.
ADVANCED COMFORT TECHNOLOGIES, INC., d/b/a INTELLIBED, and COLIN M. HOUSE, Defendants.

          ORDER AND MEMORANDUM DECISION

          TENA CAMPBELL, U.S. DISTRICT COURT JUDGE

         BACKGROUND

         On May 7, 2018, Plaintiff Shamina Plott filed this action, No. 1:18-cv-00048-TC. She alleges that she was the target of sexual harassment by Defendant Colin House, the CEO of her employer, Defendant Advanced Comfort Technologies, Inc. (ACTI), and that ACTI discriminated and retaliated against her when she reported his behavior. As of July 10, 2018, when Ms. Plott filed the operative Amended Complaint, she was still employed by ACTI.

         While this action was pending, Ms. Plott filed an additional Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC), asserting that she had been subjected to “active and/or constructive wrongful termination on August 24, 2018.” (Ex. J to Ex. 1 to Pl.'s Mot. Amend (ECF No. 34-1).) The EEOC issued a Notice of Right to Sue on July 19, 2019 (id. at Ex. I.), and on September 18, 2019, Ms. Plott moved to amend her complaint to add the allegation that she had been wrongfully terminated. (ECF No. 34.)

         Ms. Plott's Notice of Right to Sue was set to expire on October 17, 2019. Because the court had not ruled on the motion for leave to amend by that date, Ms. Plott filed a new action, No. 1:19-cv-00119-DBP, on October 16, 2019. That action is substantively identical to this action, except that the complaint there includes the allegation about wrongful termination and omits certain allegations that had been dismissed from this action after Defendants filed a motion to dismiss. (ECF No. 28.) On November 19, 2019, Ms. Plott moved to consolidate the second action (No. 1:19-cv-00119-DBP) with this action (No. 1:18-cv-00048-TC).

         Ms. Plott's motion for leave to amend and motion to consolidate are both now before the court. As a practical matter, both motions seek substantially the same goal: the addition of the wrongful termination allegation to this suit.

         ANALYSIS

         A. Leave to Amend

         Defendants oppose Ms. Plott's motion for leave to amend for two reasons.

         First, Defendants argue that the proposed second amended complaint does not include sufficient factual allegations regarding the claim for “active and/or constructive wrongful termination.” The court disagrees.

         The operative amended complaint already includes, in some detail, allegations regarding Mr. House's sexual harassment of Ms. Plott. (See Am. Compl. ¶¶ 27-48, 60-68 (ECF No. 15).) Ms. Plott also identified several ways in which this harassment resulted in adverse employment actions, a necessary element of a Title VII claim. See Sanchez v. Denver Public Schools, 164 F.3d 527, 531 (10th Cir. 1998). For example, she alleges that she was “subjected to a hostile work environment; denied consideration for promotion; denied her voiced desire and applications for any corporate promotion; and further retaliated against with multiple threats of her being insubordinate for raising questions and expressing concerns; reductions in pay and other compensation; being held to different standards; being subjected to increased workloads; [and] being subjected to intimidation and threats against her job and employment.” (Am. Compl. ¶ 53.)

         Ms. Plott now seeks to add to this list that she was wrongfully terminated. Defendants argue this allegation is too conclusory because the “proposed [Second Amended Complaint] does not include any allegations of mistreatment from even the same year that she resigned.” (Defs.' Opp'n to Mot. Amend at 9 (ECF No. 35).) But this is untrue. At the time the amended complaint was filed, in July 2018, Ms. Plott was alleging ongoing harm:

ACTI has continued with additional adverse actions. Plott has been harassed further and denied further opportunities, promotional advancement, or even consideration. ACTI has threatened Plott further, and retaliated against her, including with further increased workload, adverse performance reviews, decreased pay and compensation, given negative performance scores, told falsely ...

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