Gupta v. Oklahoma City Public Schools

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

BHAGWAN D. GUPTA, )

)

Plaintiff, )

)

)

v. ) Case No. CIV-18-00317-PRW

)

)

OKLAHOMA CITY PUBLIC SCHOOL, )

)

Defendant. )

ORDER

Before the Court are three motions: (1) a Motion for Summary Judgment (Dkt. 42)

filed by Defendant, Independent School District No. 89 of Oklahoma County, a/k/a

Oklahoma City Public Schools (“District”); (2) a Motion to Amend Complaint (“Motion

to Amend”) (Dkt. 51) filed by Plaintiff, Bhagwan D. Gupta; and (3) a Motion for Leave to

Re-File Previously Dismissed Claims (“Motion for Leave to Re-file”) (Dkt. 52) likewise

filed by Plaintiff. For the reasons stated below, District’s Motion for Summary Judgment

is GRANTED, and both Plaintiff’s Motion to Amend and his Motion for Leave to Re-File

are DENIED.

Background

Plaintiff was employed by District as a substitute teacher at Northwest Classen High

School during the 2015–2016 school year. That year, students reported to District that

Plaintiff engaged in racial discrimination, used profanity, displayed inappropriate physical

conduct, and otherwise acted in ways that failed to comply with the substitute handbook.

As result, Plaintiff was terminated on October 8, 2015.1 On March 28, 2016, Plaintiff

received a letter from District stating that these complaints rendered Plaintiff ineligible for

further assignment that school year. It further noted that “nothing in this letter would

prohibit [Plaintiff] from applying as a Substitute for the 2016–[20]17 school year.”2 On

April 4, 2016, Plaintiff filed a Charge of Discrimination with the Office of Civil Rights

Enforcement (“OCRE”), alleging various forms of discrimination.

At the end of the 2015–2016 school year, District claims that various school

principals requested that Plaintiff be excluded from their schools for the following year.3

Plaintiff ultimately applied for a substitute teaching position with District for the 2016–

2017 school year.4 Plaintiff also attended the substitute training and orientation for the

2016–2017 school year with his wife, another substitute teacher. District alleges it invited

Plaintiff’s wife to both events but not Plaintiff.5

1 Compl. (Dkt. 1) at 2.

2 Janis Perrault’s March 28, 2016 Letter to Pl. (Dkt. 42, Ex. 5) at 1.

3 Def. District’s Mot. for Summ. J. and Br. in Supp. (Dkt. 42) at 3; Pl.’s Resp. in Opp’n to

Def. District’s Mot. for Summ. J. and Br. in Supp. (Dkt. 48) at 3.

4 See Def. District’s Mot. for Summ. J. and Br. in Supp. (Dkt. 42) at 4; Pl.’s Resp. in Opp’n

to Def. District’s Mot. for Summ. J. and Br. in Supp. (Dkt. 48) at 7–8.

5 See Def. District’s Mot. for Summ. J. and Br. in Supp. (Dkt. 42) at 4; Carolyn Gray Aff.

(Dkt. 42, Ex. 1) ¶ 13, at 2.

Soon after training, Plaintiff logged onto to the portal for substitute teachers and

accepted a substitute assignment for August 2, 2016.6 After working one day, Plaintiff met

with District and was purportedly informed that he would not be permitted to substitute

teach as a result of his alleged conduct during the 2015–2016 school year.7 District also

provided Plaintiff with a letter, dated July 29, 2016, stating the same.8 During their

meeting, District allegedly clarified that Plaintiff’s August 2, 2016 substitute assignment

was just a clerical error.9

This lawsuit followed. Plaintiff filed this action alleging violations of Title VII, the

Age Discrimination in Employment Act of 1967 (“ADEA”), the Americans with

Disabilities Act of 1990 (“ADA”), due process, and equal protection.10 Plaintiff also

asserted a Title VII claim of retaliation.11 District moved for the dismissal of all claims

except for Plaintiff’s retaliation claim, and, on February 22, 2019, the Court granted

District’s motion without prejudice to re-filing.12

6 Def. District’s Mot. for Summ. J. and Br. in Supp. (Dkt. 42) at 5; Pl.’s Resp. in Opp’n to

Def. District’s Mot. for Summ. J. and Br. in Supp. (Dkt. 48) at 8.

7 Def. District’s Mot. for Summ. J. and Br. in Supp. (Dkt. 42) at 4–6; see Pl.’s ASEOP

Account (Dkt. 1, Ex. 6).

8 Def. District’s Mot. for Summ. J. and Br. in Supp. (Dkt. 42) at 5; Pl.’s Resp. in Opp’n to

Def. District’s Mot. for Summ. J. and Br. in Supp. (Dkt. 48) at 8.

9 Def. District’s Mot. for Summ. J. and Br. in Supp. (Dkt. 42) at 5.

10 Compl. (Dkt. 1) at 3.

11 Id. at 4; Set of Facts (Dkt. 1, Ex. 1 ) at 17–21.

12 Def. District’s Partial Mot. to Dismiss and Br. in Supp (Dkt. 7); Order (Dkt. 19) at 10.

Currently, the only live claim in this matter is Plaintiff’s retaliation claim, which

alleges that he lost his job as result of unlawful retaliation for filing of a Charge of

Discrimination with the OCRE on April 4, 2016. District filed a Motion for Summary

Judgment (Dkt. 42), seeking summary judgment in its favor on this remaining claim.

Moreover, Plaintiff purported to amend his pleadings on April 17, 2019 and again

on November 4, 2019.13 Then, on January 3, 2020, Plaintiff filed a Motion to Amend

Complaint (Dkt. 51), and Motion for Leave to Re-File Previously Dismissed Claims

(Dkt. 52). Notably, Plaintiff did not wait for the Court’s ruling on his previous attempts to

re-insert his claims, and District did not give consent for Plaintiff to amend his Complaint.

Thus, in addition to moving for summary judgment on Plaintiff’s retaliation claim, District

also asks that this Court deny Plaintiff’s requests to amend and to re-refile previously

dismissed claims.14 District contends the proposed amendments are barred on timeliness,

futility, failure to cure, and prejudice grounds. Plaintiff disagrees.

For the reasons discussed more fully below, District’s motion for summary

judgment is granted, and Plaintiff’s motions to amend and re-file are denied.

13 Notice Titled “Discrimination Claim” (Dkt. 26); Notice Titled “Deprivation of Due

Process Rights and Deprivation of Right to Equal Protection of Laws Claim, Deprivation

by Ms. Janis Perrault Chief Human Resources Office” (Dkt. 27); Notice Titled

“Deprivation of Due Process Rights and Deprivation of Right to Equal Protection of Laws

Claim, Deprivation by Ms. Carolyn Gray, Director Personnel Relations” (Dkt. 28); Notice

Titled “Supplemental Pleadings: Deprivation of Due Process Rights and Right to Equal

Protection of Law” (Dkt. 43); Notice Titled “Supplemental Pleadings: Retaliation Claim”

(Dkt. 44); Notice Tiled “Plaintiff's Second Set of Discovery to Defendant (Dkt. 45).

14 Def. District’s Resp. in Opp’n to Pl.’s Mot. to Amend and Pl.’s Mot. for Leave to Re-

file (Dkt. 54) at 7.

Standard of Review

Fed. R. Civ. P. 56(a) provides that “[t]he court shall grant summary judgment if the

movant shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” In deciding whether summary judgment is proper,

the court does not weigh the evidence and determine the truth of the matter asserted, but

determines only whether there is a genuine dispute for trial before the fact-finder.15 The

movant bears the initial burden of demonstrating the absence of a genuine, material dispute

and an entitlement to judgment.16 A fact is “material” if, under the substantive law, it is

essential to the proper disposition of the claim.17 A dispute is “genuine” if there is sufficient

evidence on each side so that a rational trier of fact could resolve the issue either way.18

If the movant carries the initial burden, the nonmovant must then assert that a

material fact is genuinely in dispute and must support the assertion by “citing to particular

parts of materials in the record, including depositions, documents, electronically stored

information, affidavits or declarations, stipulations (including those made for purposes of

the motion only), admissions, interrogatory answers, or other materials”; by “showing that

the materials cited [in the movant’s motion] do not establish the absence . . . of a genuine

15 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Birch v. Polaris

Indus., Inc., 812 F.3d 1238, 1251 (10th Cir. 2015).

16 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

17 Anderson, 477 U.S. at 248; Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.

1998).

18 Id.

dispute”; or by “showing . . . that an adverse party [i.e., the movant] cannot produce

admissible evidence to support the fact.”19 The nonmovant does not meet its burden by

“simply show[ing] there is some metaphysical doubt as to the material facts,”20 or by

theorizing a plausible scenario in support of its claims.21 “Rather, ‘the relevant inquiry is

whether the evidence presents a sufficient disagreement to require submission to a jury or

whether it is so one-sided that one party must prevail as a matter of law.’”22 If there is a

genuine dispute as to some material fact, the district court must consider the evidence and

all reasonable inferences from the evidence in the light most favorable to the nonmoving

party.23

Furthermore, the Supreme Court explains:

[T]he plain language of Rule 56(c) mandates the entry of summary judgment,

after adequate time for discovery and upon motion, against a party who fails

to make a showing sufficient to establish the existence of an element essential

to that party’s case, and on which that party will bear the burden of proof at

trial. In such a situation, there can be ‘no genuine issue as to any material

fact,’ since a complete failure of proof concerning an essential element of the

nonmoving party’s case necessarily renders all other facts immaterial. The

moving party is ‘entitled to a judgment as a matter of law’ because the

19 Fed. R. Civ. P. 56(c)(1); see also Celotex Corp., 477 U.S. 317; Beard v. Banks, 548 U.S.

521, 529 (2006).

20 Neustrom v. Union Pac. R.R. Co., 156 F.3d 1057, 1066 (10th Cir. 1998) (alteration in

original) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586

(1986); Ulissey v. Shvartsman, 61 F.3d 805, 808 (10th Cir. 1995)).

21 Scott v. Harris, 550 U.S. 372, 380 (2007).

22 Neustrom, 156 F.3d at 1066 (quoting Anderson, 477 U.S. at 251–52; Bingaman v. Kan.

City Power & Light Co., 1 F.3d 976, 980 (10th Cir. 1993)).

23 Scott, 550 U.S. at 380; Matsushita Elec. Indus. Co., 475 U.S. at 587; Sylvia v. Wisler,

875 F.3d 1307, 1328 (10th Cir. 2017).

nonmoving party has failed to make a sufficient showing on an essential

element of her case with respect to which she has the burden of proof.24

Discussion

A. District’s Motion for Summary Judgment (Dkt. 42)

District seeks summary judgment in its favor on Plaintiff’s Title VII claim of

retaliation for two reasons. First, District argues that Plaintiff has failed to establish his

prima facie case. Second, District argues that the undisputed facts demonstrate that it

presented a legitimate, non-retaliatory reason for terminating Plaintiff, and that Plaintiff

adduces no evidence suggesting District’s proffered reason is pretextual. This Court agrees

with District in part and finds that Plaintiff does not meet his burden as to pretext. For this

reason, District is entitled to summary judgment on Plaintiff’s retaliation claim.

Title VII makes it “an unlawful employment practice for an employer to

discriminate against any of [its] employees . . . because he has opposed any practice made

an unlawful employment practice by this subchapter, or because he has made a charge,

testified, assisted, or participated in any manner in an investigation, proceeding, or hearing

under this subchapter.”25 Because there is no direct evidence of retaliation, the McDonnell

Douglas burden-shifting framework applies.26 Plaintiff must first establish a prima facie

24 Celotex Corp., 477 U.S. at 322–23; see Braxton v. Nortek Air Sols., LLC, 769 F. App’x

600, 603 (10th Cir. 2019) (quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th

Cir. 1998)) (“[I]f the movant will not bear the burden of persuasion at trial, it can meet this

initial burden ‘simply by pointing out to the court a lack of evidence for the nonmovant on

an essential element of the nonmovant’s claim.’ It ‘need not negate the nonmovant’s

claim.’”).

25 42 U.S.C. § 2000e—3(a).

26 Stover v. Martinez, 382 F.3d 1064, 1070 (10th Cir. 2004).

case of retaliation. To do so, Plaintiff must show that (1) he engaged in protected activity

under Title VII, (2) Defendant took an adverse employment action against him,27 and (3) a

causal connection exists between the protected activity and the adverse action.28 Should

Plaintiff establish a prima facie case for retaliation, the burden then shifts to District to

“articulate a legitimate, nondiscriminatory reason for the adverse employment action.”29 If

District articulates a legitimate reason for the action, the burden shifts back to Plaintiff,

who must demonstrate that District’s asserted reasons are pretextual.30

Here, District contends summary judgment should be awarded in its favor on

Plaintiff’s Title VII claim of retaliation because Plaintiff fails to establish his prima facie

case. District concedes that Plaintiff satisfies the first two elements of his retaliation claim

but argues that Plaintiff fails to establish the third element, causation. Specifically, it argues

that the temporal proximity between Plaintiff’s protected activity (i.e. the filing a Charge

of Discrimination with the OCRE in April 2016) and the adverse employment action (i.e.

deciding not to re-hire Plaintiff in August 2016) are too far apart to establish causation

solely on that basis.31

27 See Braxton, 769 F. App’x at 605–06 (quoting Burlington N. & Santa Fe Ry. v. White,

548 U.S. 53, 68 (2006)) (“For a retaliation claim under Title VII, an adverse employment

action is something that would have ‘dissuaded a reasonable worker from making or

supporting a charge of discrimination.’”).

28 Stover, 382 F.3d at 1071.

29 Meiners v. Univ. of Kan., 359 F.3d 1222, 1229 (10th Cir. 2004).

30 Id.

31 Def. District’s Mot. for Summ. J. and Br. in Supp. (Dkt. 42) at 9–10. A causal connection

may be shown by ‘evidence of circumstances that justify an inference of retaliatory motive,

Plaintiff disagrees that April 4, 2016 is the relevant date to determine temporal

proximity of his engagement in a protected activity to the adverse employment action in

August 2016.32 He argues that the relevant date is actually June 9, 2016 because that’s

when District purportedly got a letter from the OCRE and thus had knowledge of Plaintiff’s

charge.

Viewing all facts and inferences in the light most favorable to Plaintiff, the Court

uses June 9, 2016, as the date of the protected activity. Thus, approximately two months

passed between Plaintiff’s engagement in a protected activity and the relevant adverse

employment action. Tenth Circuit case law is relatively unclear on whether this temporal

proximity alone gives rise to an inference of retaliatory motive.33 However, the Court need

not decide whether the relevant temporal proximity alone establishes causation because

Plaintiff is otherwise unable to satisfy his burden as to pretext.

such as protected conduct closely followed by adverse action.’” O’Neal v. Ferguson

Constr. Co., 237 F.3d 1248, 1253 (10th Cir. 2001) (quoting Burrus v. United Tel. Co. of

Kan., Inc., 683 F.2d 339, 343 (10th Cir. 1982)).

32 Pl.’s Resp. in Opp’n to Def. District’s Mot. for Summ. J. and Br. in Supp. (Dkt. 48) at

20–23.

33 See Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 1997) (three-month period

between engagement in protected activity and adverse employment action does not

establish causation alone for FLSA retaliation claim); Foster v. Mountain Coal Co., LLC,

830 F.3d 1178, 1191 (10th Cir. 2016) (quoting Anderson v. Coors Brewing Co., 181 F.3d

1171, 1179 (10th Cir. 1999)) (one and one-half month period between engagement in

protected activity and adverse employment action may establish causation for ADA

retaliation claim); Bragg v. Off. of the Dist. Atty., Thirteenth Jud. Dist., 704 F. Supp. 2d

1032, 1052–53 (D. Colo. 2009) (declining to grant summary judgment where retaliatory

conduct came less than two months after the plaintiff filed her complaint).

Thus, even assuming Plaintiff established a prima facie case for retaliation, the

burden shifts to District to offer evidence of a legitimate, nondiscriminatory reason for

terminating Plaintiff. And District does just that. District explains that the choice to

terminate and subsequently not re-hire Plaintiff was due to poor job performance—a

legitimate, nonretaliatory reason.34 Specifically, District points to policy violations that

came to light in the investigation of Plaintiff’s alleged conduct during the 2015–2016

school year. District states that Plaintiff “(1) used profanity in the presence of students, (2)

made racially inappropriate oral comments, and (3) made inappropriate physical contact

with a student.”35 For evidentiary support, District cites “Student Testimony Forms” that

articulate instances of alleged misconduct throughout the 2015–2016 school year. District

also points to Plaintiff’s ASEOP Account as of June 2016 to demonstrate that as result of

Plaintiff’s behavior, multiple school principals purportedly requested that he be excluded

from their schools the following year. In light of these legitimate, non-retaliatory reasons

for ending Plaintiff’s employment, this Court finds that District’s burden is met.

As such, the burden shifts back to Plaintiff but he falls well short of meeting it.

Despite making all inferences in Plaintiff’s favor, the Court finds that Plaintiff’s allegations

do not provide any indication of pretext. In order to prevail on his retaliation claim, Plaintiff

must not only establish a prima facie claim but also show that there is a genuine dispute of

34 See Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1172 (10th Cir. 2006)

(stating that poor job performance is a legitimate, nonretaliatory reason for termination).

35 Janis Perrault’s July 29, 2016 Letter to Pl. (Dkt. 42, Ex. 7) at 1.

material fact as to whether the Defendant’s proffered reasons for terminating him are

“pretextual—i.e. unworthy of belief.”36 The pretext inquiry “is not whether [the

employer’s] proffered reasons were wise, fair or correct, but whether [it] honestly believed

those reasons and acted in good faith upon those beliefs.”37 “Pretext can be shown by such

weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the

employer’s proffered legitimate reasons for its action that a reasonable factfinder could

rationally find them unworthy of credence.”38

Here, Plaintiff attempts only to demonstrate that District’s given reasons for not re-

hiring him are pretextual by relying again on temporal proximity. Plaintiff once again

reiterates the closeness in time between filing his charge with OCRE and District’s decision

not to re-hire him, and asserts that such a temporal gap is probative of retaliatory motive.39

The Court agrees that events that are close in time may be sufficient to satisfy the

causation element of Plaintiff's prima facie case.40 But the Tenth Circuit has repeatedly

held that temporal proximity alone is not sufficient to defeat summary judgment by

36 Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997).

37 Rivera v. City & Cty. of Denver, 365 F.3d 912, 924–25 (10th Cir. 2004).

38 Morgan, 108 F.3d at 1323 (citations omitted).

39 Pl.’s Resp. in Opp’n to Def. District’s Mot. for Summ. J. and Br. in Supp. (Dkt. 48) at

20–24.

40 See Trujillo v. PacifiCorp, 524 F.3d 1149, 1157 (10th Cir.2008).

showing that the employer’s proffered reason is actually pretext for retaliation.41 Rather,

to show pretext [Plaintiff] “must . . . present evidence of temporal proximity plus

circumstantial evidence of retaliatory motive.”42

Plaintiff, however, presents nothing additional that would cause a reasonable finder

of fact to determine that District’s reasons for not re-hiring Plaintiff are unworthy of belief.

For instance, Plaintiff disputes many of District’s allegations as “inadmissible evidence,”

“hearsay,” and/or lacking “personal knowledge.” These objections are improper at this

juncture and in no way create a genuine issue as to the sincerity of the proffered reasons

for not re-hiring him.

Plaintiff also makes conclusory assertions regarding District’s alleged failure to

follow policy prior to terminating and not re-hiring him. Plaintiff speculates that the student

complaints lodged at him were never investigated but has wholly failed to adduce any

evidence supporting this position. In fact, he acknowledges that District confirmed an

investigation took place and that he has no record of the contrary.43 Plaintiff instead

assumes the complaints are baseless and therefore concludes that procedures must have

been violated. At best, when all inferences are viewed in his favor, Plaintiff merely

41 See Pinkerton v. Colorado Dept. of Transp., 563 F.3d 1052, 1066 (10th Cir. 2009);

Annett v. Univ. of Kan., 371 F.3d 1233, 1240 (10th Cir. 2004); Pastran v. K–Mart Corp.,

210 F.3d 1201, 1206 (10th Cir. 2000).

42 Campbell v. Gambro Healthcare, Inc., 478 F.3d 1282, 1290–91 (10th Cir.2007) (quoting

Metzler, 464 F.3d at 1172).

43 Pl.’s Resp. in Opp’n to Def. District’s Mot. for Summ. J. and Br. in Supp. (Dkt. 48) at

27–28; Pl.’s Mot. for Leave to Re-file (Dkt. 52) at 3–4.

theorizes a plausible scenario of pretext. This not enough to create a genuine issue of

material fact precluding summary judgment.

Plaintiff further contends that District changed rather than follow certain internal

procedures when handling the student complaints concerning Plaintiff. And while this may

or may not be true, Plaintiff, again, provides no factual support whatsoever for his

assertion. Moreover, he leaves the Court with no explanation of the alleged changes made

or of how an inference of pretext can be drawn from any of this.44 Plaintiff simply states

that changes to certain policies were “done to prejudice [the] investigation” and “require[]

a deeper look at [District’s] motives.”45 Without more, these vague suspicions about

District’s motives amount to a gut feeling, which does not support an inference of pretext.

Having set forth no specific evidence of pretext beyond temporal proximity,

Plaintiff failed to carry his burden.46 No genuine issue of material fact remains as to

44 This bare allegation, without more, does nothing to bolster Plaintiff’s pretext argument.

Indeed, the extent to which an employer follows or fails to follow its own internal

procedures “does not necessarily suggest that the substantive reasons given by the

employer for its employment decision were pretextual.” Randle v. City of Aurora, 69 F.3d

441, 454 (10th Cir. 1995); see also Johnson, 594 F.3d at 1213 (“[I]t remains the law that

not every failure to follow every directive in an employer’s policy manual gives rise to an

inference of pretext.”); Berry v. T–Mobile USA, Inc., 490 F.3d 1211, 1222 (10th Cir. 2007)

(“[E]ven if T–Mobile fell short of Berry’s expectation of progressive discipline, this fact

adds little to the pretext analysis. The mere fact that an employer failed to follow its own

internal procedures does not necessarily suggest that the substantive reasons given by the

employer for its employment decision were pretextual.”).

45 Pl.’s Mot. for Leave to Re-file (Dkt. 52) at 6.

46 See Bones v. Honeywell International, Inc., 366 F.3d 869, 875 (10th Cir. 2004)

(“Unsubstantiated allegations carry no probative weight in summary judgment

Plaintiff’s retaliation claim, so District’s Motion for Summary Judgment (Dkt. 42) is

GRANTED.

B. Plaintiff’s Motion to Amend Complaint (Dkt. 51) & Plaintiff’s Motion for

Leave to Re-File Previously Dismissed Claims (Dkt. 52)

Next, the Court addresses Plaintiff’s (1) Motion to Amend Complaint (Dkt. 51), and

(2) Motion for Leave to Re-File Previously Dismissed Claims (Dkt. 52). In his Motion to

Amend (Dkt. 51), Plaintiff has requested permission to add District’s “final list of exhibits

in Plaintiff’s complaint so that he can deal with these exhibits while presenting his case in

the court.”47 In his Motion for Leave to Re-File (Dkt. 52), Plaintiff seeks leave to re-file

his discrimination and due process claims against District. For the reasons outlined below,

both motions are denied.

Fed. R. Civ. P. 15(a)(2) allows a party to amend its pleading with the opposing

party’s written consent or with leave of court. Although the rule affords the Court broad

discretion in allowing an amendment to the complaint “when justice so requires,” 48 justice

does not require the allowance of an amendment when, as here, the proposed amendment

would be futile and the movant has failed to cure deficiencies by amendments previously

proceedings. To defeat a motion for summary judgment, evidence, including testimony,

must be based on more than mere speculation, conjecture, or surmise.”) (citations omitted).

47 Pl.’s Reply (Dkt. 55) at 2.

48 Fed. R. Civ. P. 15(a)(2).

allowed. Refusing leave to amend may likewise be justified upon a showing of bad faith,

undue delay, or undue prejudice to the opposing party.49

Here, Plaintiff’s Motion to Amend (Dkt. 51)—which merely seeks to add District’s

final exhibit list to the original Complaint—is not necessary. Plaintiff makes this request

so that “he can deal with these exhibits while presenting his case in the court.”50 But he

need not move to amend the Complaint in order to do so. The Parties may ordinarily move

to admit such exhibits into evidence during trial at the appropriate time. The Court

accordingly finds there is no good cause to allow the proposed amendments in Plaintiff’s

Motion to Amend (Dkt. 51). Moreover, to otherwise permit Plaintiff to attach additional

evidence in piecemeal—as he has continually and improperly sought to do in this case—

would also likely result in needless confusion and delay. Accordingly, Plaintiff’s Motion

to Amend (Dkt. 51) is DENIED.

The Court likewise finds that Plaintiff’s Motion for Leave to Re-File (Dkt. 52)

should be denied. In this motion, Plaintiff asks for leave to re-file his discrimination and

due process claims against District but does not remedy the deficiencies previously

identified by the Court. In its Order granting District’s Partial Motion to Dismiss (Dkt. 19),

the Court rejected nearly identical discrimination and due process claims for a variety of

reasons. First, Plaintiff did not allege any relevant conduct by any relevant board of

49 Frank v. U.S. W., Inc., 3 F.3d 1357, 1365 (10th Cir. 1993); see also Foman v. Davis, 371

U.S. 178, 182 (1962).

50 Pl.’s Reply (Dkt. 55) at 2.

education and, therefore, did not allege his claim was predicated on conduct taken by an

official with final policy making authority.51 Second, Plaintiff did not allege any relevant

conduct was representative of an official policy or custom,52 and third, he did not plausibly

show the circumstances or conduct were discriminatory.53

Now, Plaintiff seeks to re-assert these same claims by restating the allegations of

the Complaint without curing the issues above. At most, Plaintiff’s proposed amendments

adds couple of conclusory remarks about discriminatory motive based on District’s alleged

violations of its own internal policies leading up to Plaintiff’s termination. Plaintiff made

similar remarks in its Complaint, which did not suffice last time at the motion to dismiss

stage and similarly do not suffice here.54 In this motion, Plaintiff further failed to comply

with the standard pleading requirements previously directed by the Court. Indeed, his

proposed amendments still do not identify relevant conduct by any relevant board of

education. Nor does Plaintiff allege any preferential treatment by District to any similarly

situated teacher. 55 Other than that, Plaintiff’s proposed amendments add excerpts of case

law which adds nothing to the analysis here.

51 Order (Dkt. 19) at 4–5.

52 Id. at 5.

53 Id. at 8–9.

54 Id. at 4–5.

55 Plaintiff has, again, failed to show that he and any of his colleagues are similarly situated

employees—i.e. employees that deal with the same supervisor, are subjected to the same

standards governing performance evaluation and discipline, and have engaged in conduct

of comparable seriousness. E.E.O.C. v. PVNF, L.L.C., 487 F.3d 790, 801 (10th Cir. 2007);

Juarez v. Utah, 263 F. App’x 726, 738 (10th Cir. 2008). He does not even identify another

In short, nothing has materially changed since the Court dismissed Plaintiffs due

process and discrimination claims. Because Plaintiff has failed to cure the deficiencies in

his claims, the Court declines leave to re-file them in their current form. Plaintiff’s Motion

for Leave to Re-File (Dkt. 52) is accordingly DENIED.

Conclusion

Accordingly, for the foregoing reasons, District’s Motion for Summary Judgment

(Dkt. 42) is GRANTED, and both Plaintiff's Motion to Amend Complaint (Dkt. 51) and

his Motion for Leave to Re-File Previously Dismissed Claims (Dkt. 52) are DENIED.

IT IS SO ORDERED this 21st day of September 2021.

PATRICK R. WYRICK

UNITED STATES DISTRICT JUDGE

employee let alone allege any facts to make such a comparison. And it is a plaintiff wishing

to show pretext with evidence that his employer treated him differently from other workers

who bears the burden of showing that the employees were similarly situated. See Watts v.

City of Norman, 270 F.3d 1288, 1293 (10th Cir. 2001); see also Salguero v. City of Clovis,

366 F.3d 1168, 1177 (10th Cir. 2004) (affirming district court’s decision granting summary

judgment and holding that allegations of disparate discipline were insufficient to show

pretext because courts “afford substantial latitude to employers in making discipline related

decisions,” and there were “significant differences in conduct” among employees).

17