United States District Court, W.D. Virginia, Charlottesville Division
VERONIQUE M. NZABANDORA, Plaintiff,
UNIVERSITY OF VIRGINIA HEALTH SYSTEMS, et al., Defendants.
MEMORANDUM OPINION & ORDER
C. HOPPE UNITED STATES MAGISTRATE JUDGE
the Court is Defendants' Motion for Leave to Amend Their
Answer (“Motion to Amend”). ECF No. 56.
Defendants, the Commonwealth of Virginia and Rectors and
Visitors of the University of Virginia, seek to amend their
Answer to assert the affirmative defense of after-acquired
evidence of wrongdoing to limit the relief available to
Plaintiff Veronique M. Nzabandora. Plaintiff opposes the
Motion to Amend, arguing that Defendants have not shown good
cause because the proposed affirmative defense is futile and
Defendants did not act diligently in presenting the motion.
Having considered the parties' briefs and oral arguments
and the applicable law, I find that Defendants have shown
action arises from Plaintiff's termination from her
position at the University of Virginia Medical Center
(“UVAMC”) as a Registered Nurse. Asserting claims
under Title VII for race and national origin discrimination,
retaliation, and hostile work environment, Nzabandora filed
the Complaint in the Eastern District of Virginia. Her case
was transferred to this Court on January 17, 2017. ECF Nos.
27, 28. A Pretrial Order, which set forth the case schedule,
was entered two days later, ECF No. 30, and a jury trial was
scheduled to begin October 30, 2017. On June 22, Defendants
filed the Motion to Amend, and Plaintiff filed a motion for
summary judgment. Defendants filed their motion for summary
judgment the following day. On August 18, the presiding
District Judge held a hearing on the cross motions for
summary judgment and the undersigned Magistrate Judge held a
hearing on the Motion to Amend.
of the Federal Rules of Civil Procedure provides that a party
may seek leave from the court to amend its pleading, and the
court should grant leave to amend “when justice so
requires.” Fed.R.Civ.P. 15(a)(2). “This liberal
rule gives effect to the federal policy in favor of resolving
cases on their merits instead of disposing of them on
technicalities.” Laber v. Harvey, 438 F.3d
404, 426 (4th Cir. 2006) (en banc). “Despite this
general rule liberally allowing amendments, ” courts
may deny leave to amend “if 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.'” United States ex rel.
Nathan v. Takeda Pharm. N. Am., Inc., 707 F.3d 451, 461
(4th Cir. 2013) (quoting Laber, 438 F.3d at 426).
case, the Court entered a scheduling order setting March 6,
2017, as the deadline for a party to move to amend the
pleadings, absent a showing of good cause. See
Pretrial Order 6. “[A]fter the deadlines provided by a
scheduling order have passed, the good cause standard must be
satisfied to justify leave to amend the pleadings.”
Nourison Rug Corp. v. Parvizian, 535 F.3d 295, 298
(4th Cir. 2008); accord Thorpe v. Mechanicsville
Concrete, LLC, No. 3:10cv797, 2011 WL 3820809, at *2
(E.D. Va. Aug. 29, 2011) (“If a proposed amendment
would interfere with an established scheduling order, a court
may grant the motion ‘only for good cause and with the
judge's consent.'”) (citing Fed.R.Civ.P.
16(b)(4)). Accordingly, I will assess the Motion to Amend
under the more stringent good cause standard. See
Nourison, 535 F.3d at 298; Smithfield Foods Inc. v.
United Food & Commercial Workers Int'l Union,
254 F.R.D. 274, 278 (E.D. Va. 2008). “When considering
whether a movant has shown good cause for an untimely
amendment, a court should primarily consider the movant's
diligence.” Thorpe, 2011 WL 3820809, at *2
(citing Montgomery v. Anne Arundel Cty., 182
F.App'x 156, 162 (4th Cir. 2006) (per curiam)).
Defendants seek leave to amend to assert an affirmative
defense based on after-acquired evidence of wrongdoing. In
McKennon v. Nashville Banner Publishing Co., 513
U.S. 352 (1995), the Supreme Court held that even assuming an
employer terminated the plaintiff based on an unlawful
motive, the employer's “after-acquired evidence of
[the employee's] wrongdoing that would have led to
termination on legitimate grounds had the employer known
about it” could limit the employee's recovery.
Id. at 359-62; accord Russell v. Microdyne
Corp., 65 F.3d 1229, 1238 (4th Cir. 1995). To invoke
this defense, the employer “must first establish that
the wrongdoing was of such severity that the employee in fact
would have been terminated on those grounds alone if the
employer had known of it at the time of the discharge.”
McKennon, 513 U.S. at 362-63. A successful
after-acquired evidence defense does not preclude the
employee's recovery, but instead prohibits her from
obtaining reinstatement or front pay and limits any award of
backpay to the “date of the unlawful discharge to the
date the new information was discovered.” Id.
contend that Nzabandora submitted an inaccurate or incomplete
application for employment at U VA M C in 2014. Defs.'
Mem. of Law in Supp. of Defs.' Mot. for Leave to Amend
Their Answer 2 (“Defs.' Br.”), ECF No. 57.
Specifically, Defendants assert that Nzabandora falsely
claimed to have worked at the Washington Medical Center from
September 2009 to February 2014 at an hourly rate of $38.74
and omitted that she worked for Our Lady of Peace from
October 2013 to January 2014 and The Laurels of
Charlottesville from May 2012 to October 2013 at hourly rates
of $27.75 and $26.30, respectively. Id. at 2, 5-6.
They contend that Nzabandora's inaccurate or incomplete
statements violated the conditions of her employment and
UVAMC policy and, as such, her offer of employment would have
been rescinded or she would have been terminated had they
learned of these inaccurate statements at the time of her
application or during her employment. Id. 1, 3, 5-6.
Defendants have taken such actions where other candidates
submitted inaccurate or incomplete applications. Id.
at 6. In support of these allegations, Defendants provide
declarations from Nzabandora's former and purported
former employers; her federal tax returns and W-2s; her
Conditions of Employment at UVAMC and related UVAMC Human
Resources Policy; a declaration from Audris Veronica Ford,
who is a human resources director at UVAMC; and a declaration
from Gretchen Marie Kaufman, who is a recruitment manager at
UVAMC. ECF Nos. 57-1, 72-4, 72-5.
also detail their efforts to obtain this information about
Nzabandora's past employment through discovery requests,
depositions, and third party subpoenas. Defs.' Br. 6-7.
By interrogatory, Defendants requested Plaintiff 's
previous sources of income, but, on March 9, 2017, Nzabandora
objected and provided only her salary information at UVAMC.
ECF No. 72-1 at 3-4. Defendants also requested
Plaintiff's resume and all federal income tax information
from 2004 to 2016. Id. at 7. Plaintiff responded
without objection by directing Defendants to “see
attached document production.” Id. At her
deposition on April 4, Nzabandora testified that she worked
at “Washington Medical” after she left UVAMC in
2009 until she returned in 2014. Nzabandora Dep. 2-4, ECF No.
57-4. The day after this deposition, Defendants' counsel
notified Plaintiff's counsel that he had not provided
Nzabandora's W-2s and requested that he do so promptly.
ECF No. 72-2 at 3-5. On April 7, Defendants served a subpoena
on the Medstar Washington Medical Center seeking documents
concerning Plaintiff's alleged employment there. ECF No.
57-1 at 27-31. On May 15, Defendants served subpoenas on Our
Lady of Peace and The Laurels of Charlottesville. ECF No.
57-1 at 35-38, 58-61. Those entities provided documents in
response on May 31 and June 5. See ECF No. 57-1 at
33-34, 55-57; Thompson Decl. ¶ 7, ECF No. 72-2; Craig
Decl. ¶ 3, ECF No. 72-4. Defendants continued to seek
Plaintiff's W-2s through May, when they brought a
discovery dispute to the Court for resolution. See
ECF Nos. 52, 53. On May 24, the Court ordered Plaintiff to
execute a tax form to submit to the Internal Revenue Service
for her 2013 W-2. After gathering all of this information,
Defendants drafted and filed their Motion to Amend.
opposing the Motion to Amend, Nzabandora challenges the
after-acquired evidence defense on its merits. She contends
that her application conformed to instructions provided by
Gretchen Kaufman and was accurate, or at least she did not
intentionally provide inaccurate information. P l . 's B
r. 1-3, ECF No. 70; Nzabandora Decl., ECF No. 70-1; Wambura
Decl., ECF No. 70-2. She further explains why she omitted
information about her employment at the Laurels of
Charlottesville and Our Lady of Peace. P l . 's B r. 3.
She also notes that Defendants received most of her federal
income tax documents throughout the month of May, or about a
month before they filed the Motion to Amend. Id. at
4; ECF Nos. 70-3 to 70-9.
does not contend that the Defendants' allegations related
to the after-acquired evidence defense themselves are
inadequate. Instead, she devotes much of her brief to
presenting her own account of the circumstances surrounding
her application for employment at UVAMC. See Pl. Br.
1-3, 8, 10-11. Her presentation of contrary evidence,
however, is misplaced. When assessing a challenge on futility
grounds, I must consider whether the “proposed
amendment sets forth facts and circumstances” that may
establish the affirmative defense. See Smithfield,
254 F.R.D. at 280; see also Cominelli v. Rector &
Visitors of the Univ. of Va . , 589 F.Supp.2d 706, 712
(W.D. Va. 2008) (finding a proposed amendment “may
properly be found futile where, as a matter of law, it fails
to state a claim” against the putative defendant). It
does not involve weighing a plaintiff's case against the
proposed defense. Because the proposed amendment concerns an
affirmative defense, rather than a claim for relief asserted
in a complaint, the Defendants' allegations must be
contextually comprehensible, Odyssey Imaging v.
Cardiology Assocs. of Johnston, LLC, 752 F.Supp.2d 721,
725 (W.D. Va. 2010) (discussing motion to strike an
affirmative defense), and they must “give the plaintiff
adequate notice of the nature of the defense.”
Cheney v. Vitro Am., Inc., No. 7:10cv246, 2010 U.S.
Dist. LEXIS 130500, at *3 (W.D. Va. Dec. 9, 2010); Warren
v. Tri Tech Labs., Inc., No. 6:12cv46, 2013 U.S. Dist.
LEXIS 69261, at *25-26 (W.D. Va. May 15, 2013).
this standard, the Defendants have alleged sufficient facts
to state the affirmative defense. Although the Answer
provides only a conclusory statement, “Defendants
affirmatively assert the after-acquired evidence doctrine,
” ECF No. 57-5 at 16, in their briefing on the Motion
to Amend, Defendants submitted declarations and documents in
support of their allegations. These materials develop
Defendants' allegations that Nzabandora provided
inaccurate information in her application and that such
action violated UVAMC policy and would have resulted in her
termination. This information provides ample detail of the
facts and circumstances of the affirmative defense.
Accordingly, I find that the proposed amendment is not
also questions the Defendants' diligence in presenting
the Motion to Amend. She notes that from May 8 to May 25, she
provided her federal income tax information for the years of
2013, 2015, and 2016. Pl.'s Br. 3-4. She argues that
Defendants knew as early as May 8, 2017, that she worked at
Our Lady of Peace and the Laurels of Charlottesville, but
they did not file the Motion to Amend until June 22, near the
deadline for filing dispositive ...