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Howze v. City of Pittsburgh

United States District Court, W.D. Pennsylvania, Pittsburgh.

October 24, 2019


          MEMORANDUM ORDER [1]



         Presently pending before the court is Plaintiff's motion for leave to amend her complaint (ECF No. 112). The motion is fully briefed and ripe for consideration. For the reasons that follow, the motion is GRANTED.


         As a preliminary matter, the court's exasperation and disbelief with counsels'[2] conduct in this case is well documented.[3] This employment discrimination case was commenced over three years ago on August 25, 2016. In response to a motion to dismiss filed by the Defendant, Plaintiff filed her first amended complaint on April 20, 2017. Defendants renewed their motion to dismiss and sought dismissal of certain claims because Plaintiff had not yet exhausted those claims through the administrative process. Agreeing with Defendant, in December 2017, the court dismissed certain claims “without prejudice for plaintiff to seek leave to reinstate th[o]se claims following the completion of the administrative process.” Memo. Order (ECF No. 35 at 2). Among the claims dismissed without prejudice with leave to seek leave to reassert following exhaustion were Counts VIII and IX, which were premised on allegations of Defendant's alleged failure to accommodate subsequent to Plaintiff's fall and injury in September 2015 and “premised upon EEOC Charges filed since the filing of the original complaint[.]” Am. Compl. (ECF No. 22) at ¶¶ 75, 82.

         The claims that remained after the Defendant's motion to dismiss related to Defendant's alleged workplace discrimination and hostile work environment based upon Plaintiff's race and gender. Defendant filed an answer to the amended complaint on January 29, 2018. (ECF No. 45). In response to Counts VIII and IX related to the failure to accommodate claims, the answer stated “[d]ismissed per 12/28/17 Court Order.” Id. at ¶¶ 74-87.

         On February 2, 2018, Plaintiff received an EEOC right-to-sue letter for Plaintiff's April 7, 2017 EEOC charge, the subject matter of which included Counts VIII and IX in her amended complaint related to an alleged failure to accommodate. The court held an initial case management conference on March 13, 2018. That same day, the court entered a case management order, ordering that pleadings be amended by April 1, 2018 and ordering the commencement of discovery. While the court granted numerous motions for extension of time to complete discovery, Plaintiff never sought additional time to amend the pleadings nor did she seek to amend her complaint in accordance with the court order.

         On February 2, 2018, the day that Plaintiff received her EEOC right-to-sue letter, Plaintiff's counsel, Attorney Martell Harris (“Attorney Harris”) emailed Defendant's counsel, Attorney Stephanie Eggar (“Attorney Eggar”) the following:

I am sure by now you got the notice from the EEOC that the DOJ will be issuing the right to sue as it relates to the charge filed last April. . . . [W]ould you agree to a consent motion to amend the order at ECF No. 35 [the memorandum opinion on the motion to dismiss] and answer the remainder of the amended complaint? If so, I can then motion now to amend the complaint to reflect proper exhaustion as indicated in the second part of the order, and we wont (sic) have to cascade discovery.

(ECF No. 113-1 at 3).

         On February 6, 2018, Attorney Eggar responded to Attorney Harris's email as follows: “I did get a notice that a right to sue will issue. Let me get back to you on this shortly. So long as the City does not have other bases for dismissal, I have no problem with that approach.” (ECF No. 113-1 at 2).

         On February 13, 2018, Attorney Eggar further responded to Attorney Harris's email as follows: “The City is willing to Answer the remainder of the Complaint and can do so by March 6. If that amenable, we can file a consent motion.” (ECF No. 113-1 at 1).

         No motion to amend the complaint, consent or otherwise, came to fruition through these emails. Consistent with Attorney Eggar's email, the Defendant filed an amended answer on March 6, 2019.[4] (ECF No. 47). The amended answer provided material responses to the claims set forth in Counts VIII and IX related to Plaintiff's failure to accommodate claims, and which Defendant previously properly declined to answer. Id. at ¶¶ 74-86.

         On May 29, 2018, Defendant, with leave of court, filed a second amended answer. (ECF No. 69). The second amended answer also provided material responses for Plaintiff's failure to accommodate claims at Counts VIII and IX in the amended complaint. Id. at ¶¶ 74-87.

         On August 12, 2019, Defendant submitted a motion for summary judgment. (ECF No. 107). In the motion, Defendant asserts that the court dismissed without prejudice, inter alia, Plaintiff's failure to accommodate claims, and that because Plaintiff did not submit an amended complaint, Defendant deemed those claims as not being reinstated and stated that those claims would not be addressed. (ECF No. 107 at ¶ 4).

         This prompted Attorney Harris to send the following email present defense counsel, Attorney Emily McNally (“Attorney McNally”):

Your office specifically agreed to answer and litigate (and did answer and litigate) the claims which you contend we did not reinstate. I have attached the conversation with [Attorney] Eggar below regarding the same. It is substantiated on the docket by ECF No. 47 where it answers the paragraphs previously unanswered in ECF No. 45 due to ECF No. 35. I presume that you now plan to modify your ...

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