United States District Court, W.D. Virginia, Lynchburg Division
ROBERT E. LEE SUPINGER, JR., Plaintiff,
COMMONWEALTH OF VIRGINIA DEPARTMENT OF MOTOR VEHICLES, et al., Defendants.
REPORT AND RECOMMENDATION
S. Ballou United States Magistrate Judge
matter is before the court on Plaintiff’s motion for
leave to file a second amended complaint. Dkt. No. 91.
Defendants oppose Plaintiff’s motion. Dkt. 93. The
matter has been referred to me for report and recommendation
under 28 U.S.C. § 636(b)(1)(B). I have considered the
parties’ briefs, oral arguments, and the applicable
law. I RECOMMEND DENYING IN PART Plaintiff’s motion to
amend his complaint.
facts surrounding Plaintiff’s claims are recounted in
detail in Judge Moon’s memorandum opinion issued on
March 2, 2016. See Dkt. No. 81. Briefly summarized,
Plaintiff alleges that Defendants’ treatment of him
during his employment at DMV was unlawfully discriminatory,
retaliatory, and in violation of multiple federal and state
statutes. Defendants previously moved to dismiss
Plaintiff’s complaint under Rule 12(b)(6) and Judge
Moon granted the motion in part. Judge Moon dismissed
Plaintiff’s claims regarding Title VII sex
discrimination, Title VII retaliation (in part), violation of
Plaintiff’s First Amendment rights, and a violation of
Virginia Code § 40.1-51.2:1. Plaintiff has now filed a
proposed amended complaint that he contends includes facts to
sufficiently support these four claims. Defendants oppose
Plaintiff’s motion to amend and argue that the motion
to amend should be denied because allowing the amendments
would be prejudicial and futile.
15(a) of the Federal Rules of Civil Procedure states that a
plaintiff who has previously amended his complaint may do so
again only with the consent of the opposing party or with the
court’s permission. See Fed.R.Civ.P.
15(a)(2). “The court should freely give leave
when justice so requires.” Id. “[L]eave
to amend a pleading should be denied only when the amendment
would be prejudicial to the opposing party, there has been
bad faith on the part of the moving party, or the amendment
would have been futile.’” Laber v.
Harvey, 438 F.3d 404, 426 (4th Cir. 2006) (quoting
Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th
Cir. 1986)). “[W]hile the trial court is given
discretion to deny amendment, that discretion is limited by
the interpretation given Rule 15 in Foman,
‘and by the general policy embodied in the Federal
Rules favoring resolution of cases on their
merits.’” Island Creek Coal Co. v. Lake
Shore, Inc., 832 F.2d 274, 279 (4th Cir. 1987) (quoting
Davis v. Piper Aircraft Corp., 615 F.2d 606, 613
(4th Cir. 1980)); see also Foman v. Davis, 371 U.S.
178, 182 (1962) (holding that “[i]f the underlying
facts or circumstances relied upon by a plaintiff may be a
proper subject of relief, he ought to be afforded an
opportunity to test his claim on the merits” and that
absent circumstances indicating undue delay, bad faith,
dilatory motive, repeated failure to cure deficiencies, undue
prejudice, or futility, leave to amend should be freely
given). Defendants claim that allowing Plaintiff to amend his
complaint would be prejudicial and futile; those arguments
will be addressed in turn.
argument that Plaintiff’s amendment would be
prejudicial is two-fold: Defendants object to the timing of
the motion to amend (which was filed the day before
Plaintiff’s deposition, thus giving Defendants
inadequate time to prepare for the deposition) and argue that
it is prejudicial because it raises new legal theories on
which Defendants were not prepared to depose Plaintiff.
Defs.’ Br. at 6-7. However, Plaintiff’s proposed
amended complaint does not, as Defendants suggest, raise
completely novel and/or complex legal issues. All of the
claims Plaintiff seeks to revive by amendment were already
known to Defendants when they briefed and argued their motion
to dismiss these claims in early 2016.
also argue that Plaintiff could have filed his motion to
amend “well in advance of his deposition” and
that their “inability to question Supinger on [the
amended] topics will unduly prejudice their ability to defend
themselves.” Id. at 7. However,
Plaintiff’s new counsel Dated this case on January 27.
Dkt. Nos. 72, 73. The district court entered its opinion
granting the motion to dismiss in part on March 2. Dkt. No
81. Plaintiff filed his motion to amend (along with the
proposed amended complaint) on April 4. Dkt. No 91. A gap of
less than thirty days is neither undue nor prejudicial to
Defendants when discovery closes on September 7, 2016 and
trial begins on December 6, 2016. This timeline and proposed
amendments are not examples of a “‘new legal
theory that would require the gathering and analysis of facts
not already considered by the [defendant, that] is offered
shortly before or during trial’” that might be
considered an unduly prejudicial amendment. Laber,
438 F.3d at 427 (quoting Johnson, 785 F.2d at 509).
All of the claims Plaintiff seeks to amend were included in
the complaint that was the subject of the motion to dismiss.
The new facts included in the proposed amended complaint are
not particularly voluminous or complex, and Defendants have
ample time to depose Plaintiff again, should that prove
necessary. I find that there is no undue delay in
Plaintiff’s filing of the motion to amend and that the
amendments, if granted, would not unduly prejudice
motion to amend is futile where, inter alia, the
amended pleading would not survive a motion to dismiss
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure.” Brown v. Winman, 2016 WL 868193,
at *1 (E.D. N.C. Mar. 7, 2016) (citing Perkins v. United
States, 848 F.Supp. 1236, 1241 (S.D. W.Va. 1994));
see also Wootten v. Commonwealth, No. 6:14cv00013,
2015 WL 1943274, at *2 (W.D. Va. Apr. 29, 2015) (holding that
a court should deny a motion to amend as futile if the
amended complaint could not survive a motion to dismiss for
failure to state a claim).
Title VII Sex Discrimination
to prevail on a Title VII sex discrimination claim, a
plaintiff must prove that (1) he is a member of a protected
class; (2) he suffered an adverse employment action; (3) he
was performing his job duties at a level that met the
employer’s legitimate expectations at the time of that
adverse employment action; and (4) that his position was
filled by someone outside of the plaintiff’s protected
class. Miles v. Dell, Inc., 429 F.3d 480, 485 (4th
Cir. 2005). Judge Moon dismissed Plaintiff’s claim for
Title VII sex discrimination because his transfer to the Fuel
Tax Enforcement Division (“FTED”) was not an
adequate adverse employment action for purposes of Title VII.
See Dkt. No. 81, 10-11. Judge Moon specifically
considered Plaintiff’s allegations that a transfer to
the FTED would impact Plaintiff by causing him to lose his
opportunity for advancement at DMV, that it would require
extensive travel and substantial work outside of normal
business hours, and that the transfer would place Plaintiff
under the supervision of Special Agent in Charge
(“SAC”) William Bralley, who had a close business
and personal relationship to PST Jennifer Dawson.
Id. at 10. Judge Moon granted the motion to dismiss
because Plaintiff failed to plead with any specificity how
the transfer would deny him opportunity for promotion,
because a requirement to travel and work outside of normal
business hours were not outside of Plaintiff’s required
job duties before the transfer, and because he failed to
articulate why working under Bralley would be a significant
detriment. Id. at 10-11.
proposed amended complaint, Plaintiff has added the following
facts: the transfer would require him to relocate to Hampton,
a city more than three hours away from Lynchburg (Prop. Am.
Compl. ¶ 70); that when Bralley became Plaintiff’s
supervisor, he “removed Supinger’s authority as a
supervisor; in effect demoting Supinger to a special
agent” (Prop. Am. Compl. ¶ 76); that Bralley hired
Dawson because he had a sexual relationship with her (Prop.
Am. Compl. ¶ 75); and that Bralley “routinely ...