United States District Court, W.D. Pennsylvania, Pittsburgh.
MEMORANDUM ORDER 
CYNTHIA REED EDDY, CHIEF UNITED STATES MAGISTRATE JUDGE
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.
preliminary matter, the court's exasperation and
disbelief with counsels' conduct in this case is well
documented. 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.
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 ¶¶
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
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
(ECF No. 113-1 at 3).
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).
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).
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. (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.
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.
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).
prompted Attorney Harris to send the following email present
defense counsel, Attorney Emily McNally (“Attorney
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 ...