United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
Y. WANG UNITED STATES MAGISTRATE JUDGE
matter comes before the court for recommendation on Plaintiff
Carol Toren-Edmiston's (“Plaintiff” or
“Ms. Toren-Edmiston) Motion for Leave to Amend and
Supplement the Pleadings (the “Motion to Amend”
or “Motion”), filed August 14, 2019. [#65]. The
undersigned Magistrate Judge considers the Motion pursuant to
28 U.S.C. § 636(b) and the Memorandum dated August 14,
2019 [#66]. This court concludes that oral argument will not
materially assist in the resolution of this matter.
Accordingly, having reviewed the Motion and associated
briefing, the applicable case law, and being otherwise
advised in its premise, this court respectfully
RECOMMENDS that the Motion to Amend be
civil action arises out of an employment dispute between Ms.
Toren-Edmiston and Defendants Wells Fargo & Company and
Wells Fargo Bank N.A. (collectively, “Wells
Fargo” or “Defendants”). See [#26
at ¶¶ 1-5]. Plaintiff began her employment in or
around 1985 with one of Wells Fargo's predecessors as a
Regulatory Reporting Specialist; she held several different
positions with Wells Fargo and its predecessors and received
several promotions along the way, including as manager of the
Non-Performing Home Equity Portfolio-“a portfolio that
held $11.8 billion in equity.” See
[id. at ¶¶ 12-19]. In 2008, Ms.
Toren-Edmiston left Wells Fargo for a position with
CitiMortgage, Inc., where she again received several
promotions and held leadership roles, before returning to
Wells Fargo as the Head of Centralized Mortgage Retail in
2013. See [id. at ¶¶ 23-26]. Upon
returning to Wells Fargo, Plaintiff oversaw 600 employees and
led several of Wells Fargo's departments. See
[id. at ¶¶ 27-31].
risk management, which Wells Fargo defines as “business
risks includ[ing] but  not limited to credit, market,
operational, regulatory compliance, strategic, and reputation
risks, ” [#77-1 at 62], “Ms. Toren-Edmiston
created the Raise Your Hand Mailbox for the specific purpose
of addressing risk management issues from all levels
throughout the organization, ” [#26 at ¶¶
46-47]. “While previous supervisors saw Ms.
Toren-Edmiston's willingness to speak up as a strength
for the company, her supervisor Liz Bryant and those to whom
Ms. Bryant reported viewed it as a liability.”
[Id. at ¶ 50]. For instance, following Ms.
Toren-Edmiston's attempts (which were successful) to
implement new compensation metrics to replace the
“customer loyalty metric” that Ms. Toren-Edmiston
believed “created incentives for loan officers to
engage in questionable behavior in order to obtain larger
bonuses, ” Ms. Bryant issued Plaintiff negative
feedback and instructed Plaintiff to terminate the Raise Your
Hand Mailbox. See [id. at ¶¶
Toren-Edmiston's additional suggestions for improving
risk management went unheeded, and thus she began the process
for retirement in or about December 2017. See
[id. at ¶¶ 61-79; #77-1 at 194-95]. Ms.
Toren-Edmiston worked with Wells Fargo's Retirement
Service Center over the next several months; however, Wells
Fargo terminated Plaintiff via phone call with Ms. Bryant on
February 5, 2018, despite positive performance reviews from
2015 and 2016. See [#26 at ¶¶ 79-99,
100-106; #65-1 at ¶ 2]. According to Ms. Toren-Edmiston,
Ms. Bryant criticized Plaintiff's management of risk in
her own departments, “accused Ms. Toren-Edmiston of
alleged misconduct regarding the Raise Your Hand Mailbox,
” and refused Ms. Toren-Edmiston's request to
retire rather than be terminated. See [#26 at
¶¶ 86-99, 125; #65-1 at ¶ 4].
Toren-Edmiston contends that Wells Fargo never provided her
with a reason for her termination, that is until August 2019
when Wells Fargo informed Plaintiff that she had violated its
Risk Management and Accountability policy and Code of Ethics
and Business Conduct by creating the Raise Your Hand Mailbox.
See [#26 at ¶ 99; #65-1 at ¶¶ 4-16].
Ms. Toren-Edmiston unsuccessfully challenged her termination
internally with Wells Fargo, see [#76-2; #76-3;
#77-2], and despite demands for her roughly $500, 000 of
earned yet unpaid bonuses and stock options
(“RSRs”), Wells Fargo refused to pay Plaintiff
any bonuses or RSRs for 2017 following her termination.
See [#26 at ¶¶ 107-24, 127-28; #65-1 at
¶¶ 9-12; #76-2].
then initiated this civil action on or about February 18,
2019, by filing her Complaint in the Boulder County District
Court, asserting claims against Defendants for wrongful
discharge in violation of public policy (“wrongful
discharge”), promissory estoppel, unjust enrichment,
and violations of the Colorado Wage Claim Act, Colo. Rev.
Stat. § 8-4-109. See generally [#1; #3].
Defendants removed this civil action to this District
pursuant to 28 U.S.C. § 1332 on March 15, 2019.
response to Defendants' Motion to Dismiss Plaintiff's
wrongful discharge, promissory estoppel, and unjust
enrichment claims, Ms. Toren-Edmiston filed her operative
First Amended Complaint on April 30, 2019. [#26]. Her First
Amended Complaint asserts claims against Defendants for
wrongful discharge, promissory estoppel, unjust enrichment,
interference with benefits in violation of the Employment
Retirement Income Security Act of 1974 (“ERISA”)
(pleaded in the alternative pursuant to Rule 8(d)(2) of the
Federal Rules of Civil Procedure), and willful withholding of
wages in violation of the Colorado Wage Claim Act. See
generally [id.]. Defendants have since moved to
dismiss the First Amended Complaint in its entirety, which
remains pending before the presiding judge, the Honorable
Philip A. Brimmer. See [#49].
here, this court conducted a Scheduling Conference on May 14,
2019, at which the undersigned set June 14, 2019 as the
amendment of pleadings deadline and November 22, 2019 as the
discovery cut-off. See [#32 at 9]. Now, Plaintiff
moves to amend her First Amended Complaint to “amend
and supplement the pleadings to add a claim for breach of the
duty of good faith and fair dealing” (pleaded in the
alternative) concerning Defendants' withholding of Ms.
Toren-Edmiston's 2017 bonuses and RSRs. See
[#65]. Defendants oppose the Motion, arguing Plaintiff knew
the basis for her breach of the duty of good faith and fair
dealing claim prior to the amendment of pleadings deadline,
the newly pleaded allegations are immaterial to her proposed
claim, and amendment is futile. See [#76]. Plaintiff
has since replied, see [#77], and thus the Motion to
Amend is ripe for recommendation. I consider the Parties'
courts in this District have repeatedly observed, a
“Scheduling Order is not a frivolous piece of paper,
idly entered, which can be cavalierly disregarded by counsel
without peril.” E.g., Lehman Bros.
Holdings Inc. v. Universal Am. Mortg. Co., LLC, 300
F.R.D. 678, 681 (D. Colo. 2014). Indeed, a Scheduling Order
is an important tool used for the orderly preparation of a
case for trial and to avoid surprise to the parties and to
the court. Id. Accordingly, Rule 16(b)(4) of the
Federal Rules of Civil Procedure expressly provides that
“[a] schedule may be modified only for good cause and
with the judge's consent.” Fed.R.Civ.P. 16(b)(4).
The Scheduling Order expressly reflects this principle. [#21
purpose of the deadline to amend pleadings and join parties,
as set out in a Scheduling Order, is to force the parties to
prioritize their discovery to obtain the information
necessary to know if amendment is required sooner rather than
later. This also ensures that discovery proceeds in an
orderly fashion. See Valles v. Gen-X Echo B, Inc.,
Civil Action No. 13-cv-00201-RM-KLM, 2013 WL 5832782, *3 (D.
Colo. Sept. 27, 2013). Accordingly, when a party seeks to
amend pleadings after the deadline set in the Scheduling
Order, the court's consideration is subject to a
two-prong analysis. First, the party must establish good
cause under Rule 16(b)(4) of the Federal Rules of Civil
Procedure. See Gorsuch, Ltd., B.D. v. Wells Fargo
Nat'l Bank Ass'n, 771 F.3d 1230, 1240 (10th Cir.
2014). Only if the party ...