UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

DAVID R. DYSON, )

 Plaintiff, )

 )

 v. ) CAUSE NO.: 2:14-CV-389-JD-PRC

)

PATRICK DONAHOE, sued in his official )

capacity as Post Master General, et al., )

Defendants. )

OPINION AND ORDER

This matter is before the Court on Plaintiff’s FRCP Rule 15(a)(2) Motion Requesting Leave

to File Verified Second Amended Complaint [DE 32], filed by pro se Plaintiff David R. Dyson on June

22, 2015. Defendants filed a response on July 1, 2015. Plaintiff has not filed a reply, and the time to

do so has passed.

On April 24, 2014, Plaintiff filed a Pro Se Complaint and, on February 10, 2015, filed a

Verified First Amended Complaint. On May 18, 2015, Defendants filed a Joint Motion to Dismiss for

Failure to State a Claim and for Lack of Subject Matter Jurisdiction, seeking dismissal of Counts I

through V of the Amended Complaint and to dismiss the United States Postal Service as a defendant

in Counts VI and VII. In lieu of a response brief, Plaintiff filed the instant motion.

In the motion, Plaintiff drops his claims under 42 U.S.C. § 1981 (Count I), his claims 42 U.S.C.

§ 1983 (Count II) and a related Monell claim (Count V), and his state law claims for intentional

infliction of emotional distress and negligence (Counts III and IV). Plaintiff also agrees to drop the

United States Postal Service as a Defendant on Counts VI and VII. Plaintiff further seeks to amend his

Title VII race and sex discrimination claims in Counts VI and VII, which are renumbered as Counts

I and II in the proposed Second Amended Complaint, to cure defects in the language of those claims

to establish the elements necessary to state a claim. Finally, Plaintiff seeks leave to bring two new
claims under Title VII for harassment and hostile work environment (proposed Count III) as well as

retaliation (proposed Count IV). The Postmaster General is the only defendant in the proposed Second

Amended Complaint. 

In their response, Defendants state that they have no objection to the amendment to bring

proposed Counts I and II that dismisses all defendants except the Postmaster General only. The

Postmaster General does not object to the motion to amend to add Count III of the proposed Second

Amended Complaint. However, the Postmaster General does object to the motion to the extent it seeks

to add Count IV of the proposed Second Amended Complaint on the basis that the retaliation claim

was not part of the administrative proceedings.

Federal Rule of Civil Procedure 15(a) provides that a party “may amend its pleading only with

the opposing party’s written consent or the court’s leave” and that “[t]he court should freely give leave

when justice so requires.” Fed. R. Civ. P. 15(a)(2). The United States Supreme Court has explained

that “freely give” means that, in the absence of any apparent or declared reasons (e.g., undue delay,

bad faith, dilatory motive), repeated failure to cure deficiencies by amendments previously allowed,

undue prejudice to an opposing party, or futility of the amendment, the court should grant leave.

Foman v. Davis, 371 U.S. 178, 182 (1962); see also Bausch v. Stryker Corp., 630 F.3d 546, 562 (7th

Cir. 2010). The standard for futility is the same standard of legal sufficiency that applies under Federal

Rule of Civil Procedure 12(b)(6). See Townsel v. DISH Network LLC, 668 F.3d 967, 969 (7th Cir.

2012); Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1085 (7th Cir. 1997). The

decision whether to grant or deny a motion to amend lies within the sound discretion of the district

court. See Campbell v. Ingersoll Milling Mach. Co., 893 F.2d 925, 927 (7th Cir. 1990).

To survive a 12(b)(6) motion to dismiss for failure to state a claim, the complaint must first

comply with Rule 8(a) by providing “a short and plain statement of the claim showing that the pleader

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is entitled to relief,” Fed. R. Civ. P. 8(a)(2), such that the defendant is given “fair notice of what the

. . . claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (quoting Conley v.

Gibson, 355 U.S. 41, 47 (1957)); see also Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). Second, the

“complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 570); see also Tamayo, 526

F.3d at 1082. The Supreme Court explained that the “plaintiff’s obligation to provide the grounds of

his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (quotation marks and brackets

omitted); see also Iqbal, 556 U.S. at 678-79; Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009).

Federal employees must satisfy the statutory prerequisites contained in Title VII, including the

proper exhaustion of available administrative remedies, before pursuing a discrimination action in

federal court. 42 U.S.C. § 2000e-5(f)(1); Brown v. Gen. Servs. Admin., 425 U.S. 820, 832-33 (1976);

Reynolds v. Tangherlini, 737 F.3d 1093, 1099 (7th Cir. 2013). “As a general rule, a Title VII plaintiff

cannot bring claims in a lawsuit that were not included in [his] EEOC charge.” Cheek v. W. and S. Life

Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994). This includes claims that could be reasonably expected to

grow out of the administrative charges. Reynolds, 737 F.3d at 1100 (citing Dear v. Shinseki, 578 F.3d

605, 609 (7th Cir. 2009)).

The Postmaster General objects to proposed Count IV on the basis that the retaliation claim

was not before the Equal Employment Opportunity Commission (“EEOC”) in the administrative phase

of this matter. Specifically, Plaintiff’s EEOC administrative complaint, which Plaintiff attached to his

First Amended Complaint, does not indicate “retaliation” on the list of choices of the type of

discrimination asserted. See (First Am. Compl., Ex. 1). Nor are there any factual allegations in the

EEOC administrative complaint out of which the proposed retaliation claim could arise. The EEOC

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administrative complaint is dated February 22, 2013, and lists the date of the alleged discrimination

as October 28, 2012. The allegations of retaliation in proposed Count IV stem from alleged actions

taken in retaliation for having filed the February 22, 2013 EEOC administrative complaint and

occurred over the many months following the filing of the February 22, 2013 EEOC administrative

complaint. Yet, there is no evidence that Plaintiff filed a subsequent EEOC administrative complaint

for retaliation based on those events in 2013. In fact, Plaintiff acknowledges in the instant motion that

his retaliation claim in proposed Count IV was not presented in his administrative claim before the

EEOC. Thus, neither the EEOC nor the employer had an opportunity to investigate the allegations of

retaliation. Therefore, the Court finds that Plaintiff failed to exhaust his administrative remedies as to

the retaliation claim and denies on this basis the motion to amend to the extent Plaintiff seeks to add

the claim of retaliation in Count IV. 

Accordingly, the Court hereby GRANTS in part and DENIES in part Plaintiff’s FRCP Rule

15(a)(2) Motion Requesting Leave to File Verified Second Amended Complaint [DE 32]. Plaintiff is

granted leave to bring Counts I, II, and III only of the proposed Second Amended Complaint. The

Court ORDERS Plaintiff to FILE the Second Amended Complaint, modified to comply with this

Order, on or before July 30, 2015.

SO ORDERED this 16th day of July, 2015.

s/ Paul R. Cherry 

MAGISTRATE JUDGE PAUL R. CHERRY

UNITED STATES DISTRICT COURT

cc: Plaintiff, pro se

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