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Kahler v. Walmart Inc.

United States District Court, D. Colorado

January 10, 2020

WALMART INC., Defendant.



         This matter is before the Court on Plaintiff Mary Lee Kahler's “Motion for Leave to File a Revised Second Amended Employment Discrimination Complaint” (the “Motion”). (ECF No. 64.) Plaintiff separately submitted signed copies of her Motion and the underlying complaint. (ECF No. 65.) Defendant Walmart Inc. (“Walmart”) opposes amendment. (ECF No. 66.) For the reasons discussed below, the Court denies Plaintiff's Motion, and grants judgment in favor of Walmart.

         I. BACKGROUND

         Plaintiff filed this litigation in December 2018 alleging several employment discrimination claims against Walmart. (ECF No. 1.) Walmart and former defendant Jonna Leggitt moved to dismiss. (ECF No. 13.) Plaintiff then filed a “Request for Amended Employment Discrimination Complaint” (“Motion to Amend”). (ECF No. 27.) Both the Motion to Dismiss and Motion to Amend were reviewed by United States Magistrate Judge Kathleen M. Tafoya. In her May 3, 2019 Recommendation (“Recommendation”), Judge Tafoya recommended that the Motion to Dismiss be granted and the Motion to Amend be denied. (ECF No. 46.) Plaintiff filed an Objection to the Recommendation. (ECF No. 49.)

         On August 20, 2019, the undersigned issued an Order adopting the Recommendation over Plaintiff's Objection. (ECF No. 51.) The Court dismissed Plaintiff's wrongful termination age-discrimination claim against Walmart with prejudice and all other claims against Walmart without prejudice. (Id. at 23.) The Court also granted Plaintiff leave to move to file a second amended complaint “no later than September 18, 2019” and informed Plaintiff that if she failed to file such a motion by that date, the Clerk would “enter judgment in favor of Defendants and terminate this case.” (Id. at 24 (boldface in original).) The Court also advised Plaintiff that “if her proposed revised Second Amended Complaint does not cure the pleading deficiencies discussed in this Order, her Motion will be denied in whole or in part.” (Id.)

         On September 4, 2019, the Court granted Plaintiff's Motion for Appointment of Counsel, and extended Plaintiff's deadline to move for leave to file a revised second amended complaint until November 15, 2019. (ECF No. 54 at 2.) The Court warned, however, that it would not consider a request to amend claims against former defendant Leggitt or to assert her age-discrimination wrongful termination claim against Walmart.

         Plaintiff timely filed the Motion on November 15, 2019. (ECF No. 65.) Plaintiff's proposed amended complaint (“proposed complaint”) states six claims for relief: (1) an age discrimination claim under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq., for failure to rehire as a “fitting room/apparel associate”; (2) a disability discrimination claim under the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq., for failure to rehire as a “fitting room/apparel associate”; (3) retaliatory failure to rehire in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”); (4) an ADEA and ADA discrimination claim for failure to hire or rehire as a “greeter, jewelry, toy, or shoe department associate” after her termination; (5) a claim that Walmart intentionally changed its attendance policy and terms of employment, which “became detrimental to the Plaintiff's job security and therefore her financial well-being”; and (6) wrongful termination.

         Walmart contends Plaintiff's proposed complaint is futile because Claims 2, 3, 4, and 5 are barred by Plaintiff's failure to exhaust her administrative remedies; Claims 1 and 4 are barred by Plaintiff's failure to file a timely Charge of Discrimination; Plaintiff fails to allege facts sufficient to support her ADEA claims (Claims 1 and 4) or ADA claims (Claims 2 and 4); and Plaintiff fails to state a claim under Claims 5 and 6. (ECF No. 66.)


         Rule 15(a) allows a party to amend a pleading as a matter of course within 21 days of service or, “[i]n all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave.” The Rule charges the court to “freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). Leave may be denied if the amendment is unduly delayed or futile. United States v. Burbage, 280 Fed.Appx. 777, 782 (10th Cir. 2008). Proposed amendments are futile when the amended complaint “would be subject to dismissal for any reason.” Watson ex rel. Watson v. Beckel, 242 F.3d 1237, 1239-40 (10th Cir. 2001). “The futility question is functionally equivalent to the question whether a complaint may be dismissed for failure to state a claim.” Gohier v. Enright, 186 F.3d 1216, 1218 (10th Cir. 1999).

         III. ANALYSIS

         A. Failure to Exhaust Administrative Remedies (Claims 2, 3 & 4)

         As discussed in the Court's prior Order, the ADEA, ADA, and Title VII require a plaintiff to exhaust administrative remedies with the Equal Employment Opportunity Commission (“EEOC”) before filing suit. Jones v. Needham, 856 F.3d 1284, 1289 (10th Cir. 2017) (Title VII); Jones v. U.P.S., Inc., 502 F.3d 1176, 1183 (10th Cir. 2007) (ADA); Martinez v. Target Corp., 384 Fed.Appx. 840, 845 (10th Cir. 2010) (ADEA). “The purpose of administrative exhaustion is two-fold: 1) to give notice of the alleged violation to the charged party; and 2) to give the EEOC an opportunity to conciliate the claim.” Needham, 856 F.3d 1284, 1290 (10th Cir. 2017) (internal quotation marks omitted). Thus, the charge of discrimination submitted to the EEOC must contain general facts about the discrimination which gives rise to the legal claim, and a claim in federal court is limited by the scope of the administrative investigation that can reasonably be expected to follow the charge. Id.

         The Court previously dismissed Plaintiff's ADA claims and retaliation claims for failure to exhaust administrative remedies prior to filing this action. (ECF No. 51 at 20.) The proposed complaint does not suggest that Plaintiff has now exhausted her administrative remedies by filing a timely charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”). Plaintiff's ADA claims and retaliation claims in her proposed complaint, namely Claim 2, Claim 3, and the ADA-portion of Claim 4, would again be subject to dismissal for failure to exhaust. Because Plaintiff has failed to include additional facts showing that she has now exhausted her administrative ...

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