The opinion of the court was delivered by: Stengel, J.
This is an employment discrimination case brought by Plaintiff, Mr. Prewitt, against Defendant, Walgreens. Originally, the case concerned an age discrimination (Count I) and wrongful discharge claim (Count II) filed by Mr. Prewitt against Walgreens. The motion to amend the complaint would add a number of claims. For the reasons stated below, I will grant in part and deny in part Plaintiff's Motion to Amend.
Plaintiff was employed at Walgreens beginning August 21, 2006, as a full-time pharmacist working in the Oxford, PA store on either the day shift or evening shift. Compl. at ¶ 1. During the summer of 2010, Walgreens disseminated an Immunizer Policy that, inter alia, required all Walgreens' pharmacists to become certified immunizers by September 1, 2010.*fn2 Compl. at ¶ 19. Based on Plaintiff's understanding of the Pennsylvania Conscience Policy adhered to by pharmacists, which states that where a pharmacist raises a conscience objection to the administration of a prescription, "the owner and pharmacist-manager should devise reasonable accommodations that will respect the pharmacist's choice while assuring delivery of services to patients in need," Plaintiff made Walgreens aware that he did not want to administer flu vaccinations to Walgreens customers. Compl. at ¶¶ 12, 27.
Plaintiff advised Walgreens' management that he was opposed to administering flu vaccination shots under the Hipps' prescription because he had a very close friend who died from Guillain-Barre Syndrome ("GBS") from a flu vaccine. Compl. at ¶ 27. In previous years, Walgreens permitted Plaintiff to avoid administering the vaccine. Compl. at ¶ 38. Plaintiff agreed to obtain his certification in order to comply with the Immunizer Policy, but objected to administering the shot. Compl. at ¶ 33. In August 2010, Plaintiff was given a ten (10) hour overnight shift position in the York store for the month of September 2010. Compl. at ¶ 37. Plaintiff refused this offer as this schedule was a significant departure from Plaintiff's previous working hours, income, and commute. Compl. at ¶¶ 39, 41.*fn3 Plaintiff was placed into a non-paying floater position effective September 4, 2010. Compl. at ¶¶ 39, 45.
Although Plaintiff did not work and was not paid since that time, he continued to communicate with Walgreens about making accommodations. Compl. at ¶¶ 46, 47. In October 2010, he provided to Walgreens a note from his physician dated August 26, 2010, stating that plaintiff suffered from a cardiac disease and administering immunizations would "create undue stress and cause significant illness," and working an overnight shift in a remote location "would be deleterious to his health and well-being." Compl. at ¶ 48. Plaintiff then notified Walgreens that he believed he was being treated discriminatorily due to his age and/or ethical, moral, and/or religious beliefs. Compl. at ¶49. Finally, on December 18, 2010, Plaintiff filed a Charge of Discrimination with EEOC and PHRC based on age discrimination. Compl. at ¶ 50.
In December 2010, unbeknownst to plaintiff, his medical and other benefits were terminated. Compl. at ¶¶ 51-52. Plaintiff remained under the impression, from his communications with Walgreens' corporate counsel, that he would return to his prior position "once the immunization season ended." Compl. at ¶ 53. However, Plaintiff was not returned to his position and was permanently replaced by a pharmacist more than 5 years younger. Compl. at ¶¶ 54-56. During this time, Plaintiff alleges that Walgreens hired and/or transferred non-immunizing pharmacists into its Pennsylvania stores and permitted them to work despite their lack of immunization licensure. Compl. at ¶ 59. Many of these new pharmacists are significantly younger that Plaintiff, and none of them sought accommodation based on the ADA or for moral, ethical or religious reasons. Compl. at ¶ 60. However, Plaintiff alleges that Walgreens did accommodate the new pharmacists' non-immunizing status by notifying customers of hours when an immunizing pharmacist would be available or sending customers to other locations. Compl. at ¶ 61.
Plaintiff alleges in his proposed amended complaint that Plaintiff's supervisor, Mr. Anderson, and Walgreens discriminated against him because of his "age and/or disability and/or religious beliefs . and/or his conscience objection" and engaged in a "retaliatory act in retribution for his raising of discrimination claims both directly with Walgreens and also via filing a Charge of Discrimination with EEOC." Compl. at ¶ 67.
Plaintiff's motion and accompanying memorandum request leave to amend the complaint to include additional claims. Specifically, the Plaintiff seeks to add claims for religious and disability discrimination under Title VII (proposed new Count III); a claim for wrongful discharge arising out of his conscience objection on the grounds that it was protected under Pennsylvania's Constitution (new Count II); claims for age, religious and disability discrimination under the Pennsylvania Human Relations Act ("PHRA")(new Count IV); and a claim for retaliatory discharge under ADEA, Title VII and PHRA (new Count V).
Plaintiff makes the argument that he could not include his PHRA claims in the original complaint because § 962(c) of the PHRA requires a complainant to wait one year from the filing of his administrative charge to seek relief in court. Additionally, Plaintiff states that the parties agreed that the discovery in the case be "phased." This alleged divided approach left Plaintiff under the impression that the parties were proceeding with discovery and dispositive motions only on Count II and, therefore, there was no bad faith or undue delay on Plaintiff's part in seeking to amend at this time. (Doc. No. 29 at 3-9). Defendant's opposition to the Plaintiff's motion rests on grounds of undue delay, bad faith, prejudice, and futility. I will discuss each of the defendant's objections below.
Under Federal Rule of Civil Procedure 15(a), "[a] party may amend the party's pleading once as a matter of course. . . . Otherwise, a party may amend the party's pleading only by leave of court . . . and leave shall be freely given when justice so requires." FED. R. CIV. P. 15(a). "While this Rule also states that leave to amend should be 'freely given,' a district court has discretion to deny a request to amend if it is apparent from the record that (1) the moving party has demonstrated undue delay, bad faith or dilatory motives, (2) the amendment would be futile, or (3) the amendment would prejudice the other party." Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107, 116 (3d Cir. 2003) (citing Foman v. Davis, 371 U.S. 178, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962)). Denial of leave to amend is disfavored; and a district judge should grant leave absent a substantial reason to deny. Moore's Federal Practice, 3 ed., vol. 3, 15.14(1); see also Shane v. Fauver, 213 F.3d 113, 115-117 (3d Cir. 2000). Thus, an amendment must be permitted unless it would be inequitable or futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 109 (3d Cir. 2002).
A. Prejudice "Mere delay alone is not enough to deny leave to amend, but 'at some point, the delay will become undue, placing an unwarranted burden on the court, or will become prejudicial, placing an unfair burden on the opposing party.'" McKenna v. City of Phila., 511 F. Supp. 2d 518, 527 (E.D. Pa. 2007) (Arthur v. Maersk, Inc., 434 F.3d 196, 204 (3d Cir. 2006)). In deciding whether to grant leave to amend, "prejudice to the non-moving party is the touchstone for the denial of the amendment." Bechtel v. Robinson, 886 F.2d 644, 652 (3d Cir. 1989) (quoting Cornell & Co., Inc. v. Occupational Health and Safety Review Comm'n, 573 F.2d 820, 823 (3d Cir. 1978)).
Prejudice has been defined as "undue difficulty in prosecuting a lawsuit as a result of a change of tactics or theories on the part of the other party." Hesling v. Avon Grove Sch. Dist., 428 F. Supp. 2d 262, 278 (E D. Pa. 2006) (Deakyne v. Comm'rs of Lewes, 416 F.2d 290, 300 (3d Cir. 1696)). To establish prejudice, the non-moving party must make a showing that allowing the amended pleading would (1) require the non-moving party to expend significant additional resources to conduct discovery and prepare for trial, (2) significantly delay the resolution of the dispute, or (3) prevent a party from bringing a timely action in another jurisdiction. See Long v. Wilson, 393 F.3d 390, 400 (3d Cir. Pa. 2004). To successfully oppose a plaintiff's motion, the defendant must "demonstrate that [their] ability to present [their] case would be seriously impaired were amendment allowed."*fn4 Dole v. Arco Chem. Co., 921 F.2d 484, 488 (3d Cir. 1990).
B. Bad Faith or Undue Delay
The denial of a motion to amend a complaint based on the movant's undue delay must be based on more than the mere passage of time. "However, at some point, the delay will become 'undue,' placing an unwarranted burden on the court, or will become 'prejudicial,' placing an unfair burden on the opposing party." Cureton v. NCAA, 252 F.3d 267, 273 (3d Cir. 2001). While bearing in mind the liberal pleading philosophy of the federal rules, "[t]he question of undue delay, as well as the question of bad faith, requires that we focus on the plaintiffs' motives for not amending their complaint to assert this claim earlier . . . ." Adams v. Gould, Inc., 739 F.2d 858, 868 (3d Cir. 1984). However, "[t]he liberality of Rule 15(a) counsels in favor of amendment even when a party has been less than perfect in the preparation and ...