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McKimmey v. Du-Par's Resorts, Inc.

United States District Court, District of Nevada

April 29, 2015

Christina McKimmey, Plaintiff,
Du-Par's Resorts, Inc., Defendant.


Gloria M. Navarro, Chief Judge United States District Court

Pending before the Court is Plaintiff Christina McKimmey's Motion to Amend the Complaint, (ECF No. 12), to which Defendant Du-Par's Resorts, Inc. responded in opposition, (ECF No. 20). Plaintiff did not file a Reply to Defendant's Response, and the deadline to do so has passed.


This case centers upon Plaintiff Christina McKimmey's allegations of discrimination against her former employer, Defendant Du-Par's Resorts, Inc. (Proposed Am. Compl., ECF No. 12-1).

Plaintiff alleges that she began her employment with Defendant on August 12, 2011, as a deli manager. (Proposed Am. Compl.¶9). Shortly after she started working for Defendant, Plaintiff alleges that she received a complaint from a female staff member, who claimed that another manager had physically abused her. (Id. at ¶ 10). On November 18, 2011, the Proposed Amended Complaint states that Plaintiff had a meeting with Bill Naylor, Defendant's chief executive officer, in which she intended to discuss the staff member's complaint. (Id. at ¶ 12). At this meeting, however, Mr. Naylor allegedly put his hand on Plaintiffs knee in a sexual manner and asked, "Do you want to keep your job?" (Id.).

Two days later, on November 20, 2011, Plaintiff was terminated from her position. In response to Plaintiffs inquiries regarding the reason for her termination, Mr. Naylor allegedly stated, "If you had come up to my room last night you might not have to be terminated." (Id. at ¶ 13). Plaintiff filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission ("EEOC") on January 12, 2012. (ECF No. 20-1).[1] The EEOC issued a right-to-sue letter regarding the allegations in the charge of discrimination on August 18, 2014. (Proposed Am. Compl. ¶ 5).

Based on these allegations, the Proposed Amended Complaint sets forth claims for: (1) Title VII discrimination; (2) Title VII retaliation; and (3) sexual harassment. In response to the instant Motion, Defendant argues that the Proposed Amended Complaint is futile as to the Title VII retaliation claim.


Federal Rule of Civil Procedure 15(a) provides that leave to amend "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). "Four factors are commonly used to determine the propriety of a motion for leave to amend. These are: bad faith, undue delay, prejudice to the opposing party, and futility of amendment. These factors, however, are not of equal weight in that delay, by itself, is insufficient to justify denial of leave to amend." BCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987) (citation omitted). "[I]t is the consideration of prejudice to the opposing party that carries the greatest weight." Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). "The party opposing amendment bears the burden of showing prejudice." BCD Programs, 833 F.2d at 187. In addition to the Rule 15(a) requirements, the Local Rules of Federal Practice in the District of Nevada require that a plaintiff submit a proposed, amended complaint along with a motion to amend. D. Nev. R. 15-1(a).


In response to Plaintiffs Motion, Defendant argues only that Plaintiffs proposed Title VII retaliation claim is futile. "[A] proposed amendment is futile only if no set of facts can be proved under the amendment to the pleadings that would constitute a valid and sufficient claim or defense." Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988). In determining whether a proposed amendment is futile, the Court looks to whether it "would survive a challenge of legal insufficiency under Federal Rule of Civil Procedure 12(b)(6)." JPMorgan Chase Bank, N.A. v. KB Home, 740 F.Supp.2d 1192, 1197 (D. Nev. 2010) (citing Miller, 845 F.2dat214).

To sufficiently state a claim for retaliation under Title VII, a plaintiff must allege that: "(1) [she] engaged in a protected activity; (2) [her] employer subjected [her] to an adverse employment action; and (3) a causal link exists between the protected activity and the adverse action." Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000). Additionally, before a federal district court can exercise subject matter jurisdiction over a Title VII claim, a plaintiff must exhaust her administrative remedies by filing a charge with the EEOC or an appropriate state agency. Lyons v. England, 307 F.3d 1092, 1103 (9th Cir. 2002). A federal court's subject matter jurisdiction over Title VII claims "depends upon the scope of the both the EEOC charge and the EEOC investigation." Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th Cir. 1990). "Allegations of discrimination not included in the administrative charge may not be considered by a federal court unless the new claims are like or reasonably related to the allegations contained in the EEOC charge." B.K.B. v. Maui Police Dep 't, 276 F.3d 1091, 1100 (9th Cir. 2002) (internal quotations omitted).

In her charge of discrimination, Plaintiff failed to indicate that her termination may have constituted unlawful retaliation. In fact, the document included a checkbox for "retaliation" that Plaintiff left empty. (ECF No. 20-1). Furthermore, the charge of discrimination states only that Plaintiff was discharged after Mr. Naylor "made sexual advances toward [her] at work, " and that Plaintiff believes she was discriminated against due to her sex. (Id.).

As the allegations in the charge of discrimination do not give rise to an inference that Plaintiffs termination may been an act of unlawful retaliation, nor does the document refer to any protected activity that Plaintiff may have engaged in prior to her termination, the Court finds that the retaliation claim in the Proposed Amended Complaint is not reasonably related to the charge of discrimination. Therefore, as Plaintiff has failed to exhaust her administrative remedies, the Court finds that Plaintiffs proposed Title VII retaliation claim is futile. Accordingly, the Court ...

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