United States District Court, D. Colorado
ALAN D. CHALEPAH, Plaintiff,
CANON CITY AND ROYAL GORGE ROUTE a/k/a Royal Gorge Route Railroad, Defendant.
NINA Y. WANG, Magistrate Judge.
This matter comes before the court on the Plaintiff's Motion to Amend the Complaint [#57] filed on October 22, 2014. The Parties have consented to the jurisdiction of the Magistrate Judge [#15] and the court has jurisdiction pursuant to the Order of Reference dated September 17, 2013, and the subsequent reassignment of this action. [#19, #78]. Given the various representations in the pending motions, the court set a hearing by Minute Order that stated, in pertinent part:
"At this time, the court will hear argument regarding the Motion to Amend Complaint [#57] and the Motion to Amend Plaintiff's Response to Defense Motion for Summary Judgment [#75]. Plaintiff Alan D. Chalepah must appear in person and be prepared to testify as to his counsel's representations raised in both Motions as the basis for the relief requested therein."
A hearing was held on these Motions on April 24, 2015. During the hearing, the court specifically advised Plaintiff Alan D. Chalepah ("Plaintiff" or "Mr. Chalepah") that his lawyer had made certain representations in the Motions about his qualifications to serve as an attorney in this matter as justification for the pending Motions. The court further asked Mr. Chalepah whether he had been informed of the positions taken by his counsel, the progress of his case, and the fact that his attorney's actions in the case would bind him. Mr. Chalepah indicated that he had been so advised and he understood. The court then inquired whether Mr. Chalepah wanted to go forward with the representation of counsel, and Mr. Chalepah confirmed that he did. As a result, the court then turned to oral argument regarding the pending Motions.
The court has considered the Parties' papers, the applicable case law, the arguments made by counsel at oral argument, and is sufficiently advised of the premises. For the reasons set forth herein, Plaintiff's Motion to Amend the Complaint is DENIED and Plaintiff's Motion to Amend Plaintiff's Response to Defense Motion for Summary Judgment is DENIED, with leave to file a Sur-Reply of no more than ten (10) pages, which, at a minimum, addresses the Statement of Undisputed Facts as set forth in the pending Motion [#60 at Section II], with specific citations to evidence.
Plaintiff initiated this lawsuit on August 13, 2013 by filing a pro se Complaint. [#1]. The court then permitted Mr. Chalepah to proceed pursuant to 28 U.S.C. § 1915 [#6]. In the Complaint, Mr. Chalepah asserts various claims associated with the termination of his employment with Defendant Canon City & Royal Gorge Route ("Defendant" and "RGRR"), as follows: (1) termination based on Mr. Chalepah's color and/or race in violation of Title VII of the Civil Rights Act of 1964 (disparate treatment) [#1 at ¶¶ 19, 32-49]; (2) breach of contract and/or promissory estoppel [ id. at ¶¶ 50-65]; (3) negligence [#1 at ¶¶ 66-70]; (4) intentional infliction of emotional distress/harassment [ id. at ¶¶ 73-78]; (5) intentional interference with contractual relationship [ id. at ¶¶ 79-85]; and (6) abuse of process [ id. at ¶¶ 86-92]. Plaintiff sought compensatory and exemplary damages and injunctive relief. [ Id. at 23-24].
In support of his claims, Mr. Chalepah set forth several pages of factual allegations, some of which are recited here. Plaintiff self-identifies as an American-Indian male. [#1 at 3 ¶ 11A]. Beginning on or about May 11, 2007, Mr. Chalepah was employed by Defendant Canon City & Royal Gorge Route ("Defendant" or "RGRR"). In 2012, the former Superintendent of Operations announced his resignation and Mr. Chalepah expressed interest in the position to the Assistant General Manager, Glenn Hayes. [ Id. at ¶11B] Subsequently, unbeknownst to Mr. Chalepah, the position of Superintendent of Operations was then divided into two positions: a Manager of Operations and a Chief Mechanical Officer. [ Id. at 4 ¶ 11C] Mr. Chalepah was not interviewed for either position, and the position of Manager of Operations was filled by Devon Cacy, an individual who had less experience than Mr. Chalepah. [ Id. at 4 ¶ 11E.] Mr. Chalepah was displeased with the fact that he was neither interviewed for nor given the position. [ Id. at ¶ 11F]
On or about November 1, 2012, Mr. Chalepah confided in Mr. Cacy, a personal friend, that he was upset and was contemplating contacting the Equal Employment Opportunity Commission ("EEOC"). [ Id. at ¶ 11G]. Mr. Chalepah concedes he does not know whether Mr. Cacy, in turn, told any of the supervisors at RGRR of his intent to contact the EEOC. [ Id. ] On or about November 5, 2012, Mr. Chalepah received a text message from his supervisor to hurry and return with a company gas card because another employee needed to fuel a work truck. [ Id. at ¶ 11I]. In response, he responded "no s**t why don't he drive down here." [ Id. ] On or about November 5, Mr. Chalepah was suspended by RGRR through Mr. Hayes and Jennifer Keegan, an RGRR Human Resources representative, based in part on the text and unspecified "things that have come to [the] attention [of RGRR management]." [ Id. at ¶ 11L]. Mr. Chalepah was then terminated a day or two later after he purportedly contacted two employees, Thomas Prather and Wayne Gay, to create conflict and "help to build a case against the company." [ Id. at ¶¶ 11M-N.]
The Complaint contains no allegation that Mr. Chalepah had filed any complaint with the EEOC or made any direct complaint to either Mr. Hayes or Ms. Keegan that RGRR had discriminated against him based on his race at the time of his termination.
The court entered the Scheduling Order in this case on October 30, 2013. [#29]. At that time, Mr. Chalepah appeared pro se. [ Id. ] In the Scheduling Order, Mr. Chalepah again set forth a statement of his claims. [ Id. at 2-3]. In that statement, Mr. Chalepah specifically stated that "all of the decisions and/or actions by Defendant were based in whole or part by discrimination and/or retaliation and were not undertaken for legitimate, nondiscriminatory, non-retaliatory, and non-pretextual reasons, " and "Defendants actions [sic] as outlined by the Equal Employment Opportunity Commission were based in whole or part from Discrimination, Retaliation, and Harrassment." [ Id. ] Defendants responded that "any and all actions it took with respect to Plaintiff's employment were taken for legitimate, non-discriminatory and non-retaliatory reasons." [ Id. at 4]. In addition, Defendants asserted affirmative defenses including, "(1) all of the decisions and/or actions challenged as discriminatory and/or retaliatory in Plaintiff's Complaint were undertaken for legitimate, nondiscriminatory, nonretaliatory, and non-pretextual reasons; (2) some or all of the decisions and/or actions challenged as discriminatory and/or retaliatory in Plaintiff's Complaint would have been undertaken even had Plaintiff not had the protected status(es) alleged and/or had not undertaken the protected conduct alleged..." [ Id. at 5]. Neither Party, however, addressed any specific allegation of retaliation. The deadline for joinder of parties and amendment of pleadings was set for December 13, 2013. [ Id. at 9]. On December 20, 2013, the court granted the Motion of Plaintiff's Request for Voluntary Attorney. [#37].
On March 29, 2014, Plaintiff's current counsel was appointed pursuant to the United States District Court's Pilot Program to Implement a Civil Pro Bono Panel. [#39]. The appointment provided that Mr. Peterson had 31 days from March 31, 2014 to enter an appearance or withdraw as counsel. [ Id. ] Mr. Peterson entered his appearance on May 2, 2014. [#40]. On June 2, 2014, the court granted Plaintiff's Motion to vacate the trial date, and extended the deadline for the close of discovery to October 3, 2014, and the deadline for the filing of dispositive motions to November 3, 2015. [#48]. Mr. Chalepah was also provided ten additional interrogatories. [ Id. ]
On July 3, 2014, Mr. Chalepah filed a motion seeking additional discovery [#51], which was opposed by Defendant [#53]. By Defendant's representation, at the time of the filing of the motion, Plaintiff had served thirty-nine interrogatories, but had not taken a single deposition. [ Id. at ¶¶ 4-5]. The court set a hearing on the motion for July 21, 2014, but Plaintiff's counsel did not appear. [#54]. The court then denied ...