United States District Court, D. Colorado
T. Varholak United States Magistrate Judge
matter is before the Court on Plaintiff's Opposed Motion
for Leave to Add an Aggrieved Individual (the
“Motion”) [#98]. The Motion has been referred to
this Court. [#99] This Court has carefully considered the
Motion, related briefing, the case file, and the applicable
case law, and has determined that oral argument would not
materially assist in the disposition of the Motion. For the
following reasons, I GRANT the Motion.
7, 2016, Plaintiff filed its Complaint alleging violations of
Title I and Title V of the Americans with Disabilities Act of
1990 (“ADA”) and Title I of the Civil Rights Act
of 1991. [#1] Plaintiff brought this action “to
correct” Defendant's allegedly “unlawful
employment practices on the basis of disability and to
provide appropriate relief to Clinton Kallenbach and other
aggrieved individuals, who were adversely affected by such
practices.” [Id. at 1] Generally, the
Complaint alleges that Defendant maintained a “full
duty” return-to-work policy that impermissibly required
employees to return to work without restrictions, failed to
provide reasonable accommodations, imposed an inflexible
policy of allowing medical leave of no more than 12 weeks,
and retaliated against individuals who sought reasonable
accommodations. [Id. at 2, 5-8, 12-18]
September 14, 2016, United States Magistrate Judge Nina Y.
Wang entered a Scheduling Order setting a December 1, 2016
deadline for Plaintiff to identify aggrieved individuals.
[#26 at 23-24] On October 21, 2017, this Court held a
discovery hearing primarily concerning the nature of the
notice that Plaintiff would mail to Defendant's current
and former employees. [#65 at 2-14] Due to a dispute over the
language of the notice, Defendant did not object to resetting
the deadline for identifying aggrieved individuals.
[Id. at 15] As a result, the Court extended the
deadline to January 16, 2017. [Id. at 17] The Court
warned Plaintiff that it would “only consider an
addition [of aggrieved individuals] after that January 16
deadline  in exceptional circumstances.”
[Id. at 18]
January 13, 2017, this Court conducted another hearing on
Plaintiff's request to extend the deadline to identify
aggrieved individuals. [#71] Plaintiff explained that there
were 31 individuals who had not received notice and an
additional 75 people who had received notice but likely had
not had sufficient time to respond. [Id. at 5-7]
Plaintiff further explained that there were another 45 people
who had indicated that they wanted to participate in the
litigation, but who had not yet been interviewed.
[Id. at 11] This Court granted Plaintiff's
request and extended the deadline to identify aggrieved
individuals for 45 days. [Id. at 18-19] But the
Court warned Plaintiff that it would not “grant any
additional extensions of time to contact people. By [the]
March 6th [status conference] if [aggrieved individuals]
haven't joined in, they're
out.” [Id. at 19]
March 24, 2017, the parties filed a Joint Motion to Stay
Discovery so that the parties could pursue mediation [#81],
which this Court granted [#83]. Over the next six months, the
parties pursued settlement discussions and the litigation
remained stayed until September 26, 2017. [## 88, 89, 91, 92]
These settlement discussions ultimately failed and on
September 26, 2017, this Court entered an Amended Scheduling
Order. [## 94, 95] Pursuant to the Amended Scheduling Order,
discovery is due by September 28, 2018, and dispositive
motions are due by November 27, 2018. [#95 at 34-35] A Final
Pretrial Conference is set for February 4, 2019 [id.
at 38], a Trial Preparation Conference is set for June 28,
2019, and trial is set to commence on August 5, 2019 [# 96].
To date, Plaintiff has timely identified 63 aggrieved
individuals. [#98 at ¶ 4]
November 6, 2017, Plaintiff filed the instant Motion. [#98]
The Motion seeks to add Lee Sombelon, a former employee of
Defendant, as an aggrieved individual. [Id. at
¶ 5] Attached to the Motion is a Declaration purportedly
completed by Mr. Sombelon. [#98-1] The Declaration asserts that,
on December 2, 2016, Mr. Sombelon completed, signed, and
returned to Plaintiff the participation agreement.
[Id. at ¶ 4] After not receiving a status
update, Mr. Sombelon made several calls to Plaintiff's
general number. [Id. at ¶¶ 6-10] Mr.
Sombelon did not receive a return call. [Id. at
to the Declaration, in August 2017, Mr. Sombelon again called
Plaintiff's general number and referenced the Notice of
Litigation letter. [Id. at ¶ 12] This time, Mr.
Sombelon was given the number for Plaintiff's counsel in
this litigation, Karl Tetzlaff. [Id.] On August 25,
2017, Mr. Sombelon contacted Mr. Tetzlaff and left a voice
message. [Id. at ¶ 13] In early September, Mr.
Sombelon received a return phone call from an EEOC Legal
Technician, Janet Brown. [Id. at ¶ 14] During
this conversation, Mr. Sombelon conveyed to Ms. Brown his
attempts to participate as an aggrieved individual.
two months after Mr. Sombelon's call with Ms. Brown,
Plaintiff filed the instant Motion. [#98] Defendant filed an
opposition on November 27, 2017 [#100], and Plaintiff replied
on December 11, 2017 [#102].
the instant Motion requests leave to add an aggrieved
individual, in effect, Plaintiff seeks to modify the
Scheduling Order, so as to designate Mr. Sombelon as a
witness. [See generally #98] By extension,
Defendant's opposition to the Motion amounts to its
attempt to preclude Mr. Sombelon from testifying about his
particular damages. [See generally #100]
courts have noted . . . that a ‘Scheduling Order is not
a frivolous piece of paper, idly entered, which can be
cavalierly disregarded by counsel without peril.'”
Washington v. Arapahoe Cty. Dep't of Soc.
Servs., 197 F.R.D. 439, 441 (D. Colo. 2000) (quoting
Widhelm v. Wal-Mart Stores, Inc., 162 F.R.D. 591,
593 (D. Neb. 1995)). Federal Rule of Civil Procedure 16(b)(4)
allows modification of a Scheduling Order “only for
good cause and with the judge's consent.”
“Demonstrating good cause under the rule
‘requires the moving party to show that it has been
diligent in attempting to meet the deadlines, which means it
must provide an adequate explanation for any
delay.'” Strope v. Collins, 315 Fed.Appx.
57, 61 (10th Cir. 2009) (quoting Minter v. Prime Equip.
Co., 451 F.3d 1196, 1205 n.4 (10th Cir. 2006)); see
also Lehman Bros. Holdings Inc. v. Universal Am. Mortg. Co.,
LLC, 300 F.R.D. 678, 681 (D. Colo. 2014). Nonetheless,
“total inflexibility is undesirable.” Summers
v. Missouri Pac. R.R. Sys., 132 F.3d 559, 604 (10th Cir.
1997) (quotations omitted). As a result, “[a]lthough a
good cause inquiry will, in most cases, begin with an inquiry
into the movant's diligence, there may be other relevant
considerations.” E.E.O.C. v. JBS USA, LLC, No.
10-cv-02103-PAB-KLM, 2016 WL 1039907, at *5 (D. Colo. Mar.
16, 2016) (citing 6A Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 1522.2
(3d ed. 2015)).
the parties dispute the proper standard that the Court should
apply in determining whether Plaintiff has established good
cause. Plaintiff argues that the Court should apply the
four-factor test set forth in Burks v. Okla. Publ'g
Co., 81 F.3d 975 (10th Cir. 1996) (“the
Burks factors”). [#98 at 3] Defendant, on the
other hand, contends that Burks is inapplicable and
the Court should consider only the EEOC's diligence in
seeking to add aggrieved individuals. [#100 at 3 n.1] The
Court agrees with Plaintiff that it may look to the