United States District Court, D. Utah, Northern Division
ORDER AND MEMORANDUM DECISION
CAMPBELL, U.S. DISTRICT COURT JUDGE
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.
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.)
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).
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.
Leave to Amend
oppose Ms. Plott's motion for leave to amend for two
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.
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.)
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 ...