United States District Court, Eastern District of Missouri, Eastern Division
MEMORANDUM AND ORDER
AUDREY G. FLEISSIG UNITED STATES DISTRICT JUDGE
This matter is before the Court on the motion (Doc. No. 48) of Plaintiff Alaa Almoghrabi for leave to amend his complaint. Plaintiff, a Jordanian Muslim, filed suit against his former employer, Defendant GoJet Airlines LLC (“GoJet”), alleging that he was illegally terminated on the basis of his race, color, religion, and national origin. Plaintiff also sues Defendant International Brotherhood of Teamsters Local 618 (“IBT”) for discriminating against him, based on his race, color, religion, and national origin, by failing adequately to represent him in his dispute against GoJet. For the reasons stated below, Plaintiff’s motion for leave to amend will be granted. However, the Court will sua sponte dismiss Count III of Plaintiff’s First Amended Complaint.
Plaintiff filed this action on March 19, 2014, asserting claims for discrimination by both Defendants based on his race, color, religion, and national origin under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§2000e, et seq., and the Missouri Human Rights Act (“MHRA”), Mo. Rev. Stat. §§ 213.010, et seq. Plaintiff alleges that he was employed by GoJet as a pilot from November 2007 until October 2012, when he was terminated following an altercation with another GoJet employee who allegedly mocked Plaintiff’s Arabic language and accent, as well as his clothing and sexuality.
On November 5, 2014, GoJet filed a motion to dismiss, in which it argued that Plaintiff’s MHRA claim against it was time-barred because it was not filed within 90 days of the Missouri Commission on Human Rights (“MCHR”) issuing its right-to-sue letter, as required by the MHRA. See Mo. Rev. Stat. § 213.111.1. In its motion, GoJet also argued that Plaintiff’s race and color discrimination claims made against it should be dismissed because Plaintiff failed to exhaust his administrative remedies for those claims, in that he failed to check the boxes for race and color discrimination in his administrative charges with the MCHR and the Equal Employment Opportunity Commission (“EEOC”).
In response to that motion, Plaintiff conceded that his MHRA claim was untimely but argued that equitable tolling should apply because he was confused as to the applicable deadline by which to file his suit. (Doc. No. 40 at 3.) He also argued that he adequately exhausted his race and color discrimination claims. In their briefs, both GoJet and Plaintiff attached copies of the MCHR and EEOC charges and right-to-sue letters, and the Court considered these materials in ruling on GoJet’s motion. See Doc. No. 47 at 2 n.1.
In its Order dated March 11, 2015, the Court granted GoJet’s motion with respect to the MHRA claim, dismissing it as time-barred, and rejected Plaintiff’s equitable tolling argument. (Doc. No. 47.) The Court reasoned that both the MHRA and the MCHR right-to-sue letter clearly set forth the 90-day timeline, and that Plaintiff’s pro se status did not excuse him from complying with the statutory deadline. Id. at 7. However, the Court denied GoJet’s motion with respect to the exhaustion of race and color discrimination claims. The Court found that in light of the totality of Plaintiff’s factual allegations, the fact that Plaintiff did not check the boxes for race and color discrimination in his EEOC charge was not dispositive. Because a claim of race and color discrimination could reasonably be expected to grow out of Plaintiff’s EEOC charge, the Court denied GoJet’s motion to dismiss for Plaintiff’s alleged failure to exhaust his race and color discrimination claims against GoJet. Id. at 10-11.
Plaintiff now moves to amend his complaint in order to add counts for race discrimination against both Defendants, pursuant to 42 U.S.C. § 1981. Plaintiff argues that his motion for leave to amend is timely, having been filed over two weeks before the case management order’s deadline for amendments to pleadings, and that the amendment will add claims of which Plaintiff, initially pro se, was unaware at the time he filed the original complaint. Plaintiff asserts that the amendment will also correct deficiencies in the current complaint to clarify the existing claims against Defendants. As such, Plaintiff contends that his motion is made in good faith and will not unduly prejudice Defendants.
Plaintiff’s proposed amended complaint alleges that he was terminated for an incident in which his co-pilot mocked Plaintiff’s Arabic language and accent, saying “[i]s that how you speak? Is that what Arab people say?” (Doc. No. 48-1 at 4.) The proposed amended complaint also refers to the administrative charges and right-to-sue letters as exhibits to the pleading. Plaintiff does not attach the administrative charges and right-to-sue letters to his motion for leave to amend, but as stated above, these documents were submitted to the Court in connection with GoJet’s earlier-filed motion to dismiss. Plaintiff’s MCHR charge alleges that while Plaintiff was purportedly terminated for pushing an employee, GoJet failed to similarly terminate a “Caucasian employee of American origin who was arrested for allegedly harassing and chasing a female to her house.” (Doc. No. 25-1 at 3.) Plaintiff thus alleges that his “race, religion, color, and national origin was a contributing factor in Defendants’ discrimination against Plaintiff, ” in violation of § 1981. (Doc. No. 48-1 at 12-13.)
In response to Plaintiff’s motion for leave to amend, GoJet argues that § 1981 does not support claims of discrimination based on national origin or religion, and that while race discrimination claims are cognizable under § 1981, Plaintiff does not plead the necessary facts in support of such a claim. GoJet argues that the proposed amended complaint alleges only that Plaintiff “is Jordanian (a national origin) and Muslim (a religion), ” both of which are distinct from asserting that he is part of, and was discriminated based on being, a protected racial minority. (Doc. No. 52 at 1.) Finally, GoJet argues that Plaintiff has not pled that his race was the “motivating factor” in GoJet’s decision to terminate him, as is needed to prove discrimination in violation of § 1981. Id. at 2. For these reasons, GoJet claims that Plaintiff’s amendment would be futile and that the Court should deny Plaintiff’s motion for leave to amend.
IBT did not file a brief in opposition to Plaintiff’s motion for leave to amend, and the time to do so has passed.
Federal Rule of Civil Procedure 15 allows a party to “amend its pleading only with the opposing party’s written consent or the court’s leave.” Fed.R.Civ.P. 15(a)(2). The “court should freely give leave when justice so requires.” Id. Though leave to amend should generally be freely granted, it should be denied when the amendment would be futile. See Moses.com Sec., Inc. v. Comprehensive Software Sys., Inc., 406 F.3d 1052, 1065 (8th Cir. 2005).
“In the context of a motion to amend, ‘futility’ means the inability to withstand a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Halsne v. Avera Health, No. 12–cv–2409 (SRN/JJG), 2013 WL 3088588, at *5 (D. Minn. June 18, 2013) (citing Cornelia I. Crowell GST Trust v. Possis Med., Inc., 519 F.3d 778, 782 (8th Cir. 2008)). In order to withstand a Rule 12(b)(6) motion, a complaint must contain sufficient factual matter, which, if accepted as true, states “a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). “On a motion to dismiss, a court must primarily consider the allegations contained in the complaint, although matters of public and administrative record referenced in the complaint may also be taken into account.” Deerbrook Pavilion, LLC v. Shalala, 235 F.3d 1100, 1102 (8th Cir. 2000). Courts have considered both EEOC and MCHR charges as parts of the public and administrative record that may be taken into account on a motion on the pleadings. See Faibisch v. Univ. of Minn., 304 F.3d 797, 802 (8th Cir. 2002) (finding that motion for judgment on the pleadings was not converted to summary ...