Price v. Driscoll

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF OKLAHOMA

LAMAUR PRICE, )

)

Plaintiff, )

)

v. ) Case No. CIV-21-100-GLJ

)

DANIEL P. DRISCOLL,1 )

Secretary of the Department of the Army, )

)

Defendant. )

OPINION AND ORDER

This case arises out of Plaintiff Lamaur Price’s employment at the McAlester Army

Ammunition Plant in McAlester, Oklahoma. Plaintiff raises various claims related to age,

race, and gender discrimination and has sued the United States, through Daniel P. Driscoll,

Secretary of the U.S. Department of the Army. Plaintiff now seeks leave to amend the

Amended Complaint in this case. For the reasons set forth below, the Court finds that

Plaintiff’s Motion Seeking Leave to Amend [Docket No. 31] is hereby GRANTED IN

PART and DENIED IN PART.

I. Background

Plaintiff was employed at the McAlester Army Ammunition Plant (“Plant”), a

federal employer, in 2019. During that year, Plaintiff was under investigation for sexual

assault of another employee. At the same time, he was interested in an advertised job

1 On February 25, 2025, Daniel P. Driscoll was appointed Secretary of the Department of the U.S.

Army. In accordance with Fed. R. Civ. P. 25(d), Mr. Driscoll is substituted for Christine Wormuth

as Defendant in this action.

listing that would be a promotion but was not given the opportunity to apply. He alleges

the person who was hired for this position was given direct coaching and assistance to

attain this position despite being unqualified, while he was qualified and had also expressed

interest in applying for the position. Plaintiff applied for a second promotion in December

2019. That same month and before the job listing closed, Plaintiff learned he had been

cleared in the sexual assault investigation, but he was not given an interview for the second

vacant position for which he was qualified and he applied.

II. Procedural History

Plaintiff filed his original Complaint on March 30, 2021, then an Amended

Complaint on June 29, 2021 [Docket Nos. 2, 9]. Plaintiff identified three causes of action

in the Amended Complaint: (1) age discrimination in violation of the Age Discrimination

in Employment Act (“ADEA”), (2) prohibited personnel practices in violation of 5 U.S.C.

§ 2302, and (3) sex or gender discrimination in violation of Title VII. Docket No. 9, pp.

6-8, ¶¶ 28-36.

Defendant moved to dismiss Plaintiff’s Amended Complaint on July 30, 2021

[Docket No. 15], and the motion was fully briefed by August 27, 2021 [Docket Nos. 16-

17]. On May 1, 2023, U.S. District Judge Jodi Dishman, serving as visiting District Judge

in this case,2 set the motion for hearing, which was ultimately held on August 18, 2023

2 The Northern and Eastern Districts of Oklahoma have experienced unprecedented caseloads and

jurisdictional complexities since the Supreme Court’s decision in McGirt v. Oklahoma, 591 U.S.

894 (2020). McGirt caused an immediate increase of nearly 200% in the number of criminal cases

filed in the Northern District and more than 400% in the Eastern District. See U.S. Courts,

Judiciary Supplements Judgeship Request, Prioritizes Courthouse Projects (Sept. 28, 2021),

https://www.uscourts.gov/news/2021/09/28/judiciary-supplements-judgeship-request-prioritizes-

[Docket Nos. 21-25]. At the hearing, Judge Dishman granted Defendant’s motion to

dismiss, stating the reasons on the record at the hearing and dismissing all three counts

without prejudice. Plaintiff asked for leave to file a Second Amended Complaint as to

Counts 1 and 3, and the Court ultimately gave Plaintiff until September 15, 2023, to request

leave to file a Second Amended Complaint. Docket Nos. 25, 27-28.

Plaintiff filed his motion for leave to amend on September 15, 2023, and the motion

was fully briefed by October 6, 2023 [Docket Nos. 31-33]. The attached proposed Second

Amended Complaint sets forth the following two causes of action: (1) “Violation of Race

and Age Discrimination in Employment Act” referencing only the ADEA, and (2) sex or

gender discrimination in violation of Title VII. Docket No. 31, Ex. 1, pp. 19-22, ¶¶ 34-42.

On May 2, 2025, the parties consented to U.S. Magistrate Judge jurisdiction pursuant to 28

U.S.C. § 636(c)(1) and Fed. R. Civ. P. 73(a), and this case was reassigned to the

undersigned Magistrate Judge [Docket No. 34].

III. Legal Standards

Fed. R. Civ. P. 15(a)(2) states that a party may amend a Complaint with the opposing

party’s consent or by leave of the Court, and that the Court “should freely give leave when

justice so requires.” “Although Fed.R.Civ.P. 15(a) provides that leave to amend shall be

courthouse-projects. This extraordinary number of criminal cases thrust into federal court,

virtually overnight, is unlike anything ever seen in this Country’s history. Indeed, the Supreme

Court has since recognized the “significant challenge for the Federal Government and for the

people of Oklahoma” in the wake of McGirt. Oklahoma v. Castro-Huerta, 597 U.S. 629, 635

(2022). Numerous federal courts have “noted McGirt’s tremendous impact.” United States v.

Budder, 601 F. Supp. 3d 1105, 1114 (E.D. Okla. 2022) (collecting cases), aff’d 76 F.4th 1007 (10th

Cir. 2023).

given freely, the district court may deny leave to amend where amendment would be

futile[.] A proposed amendment is futile if the complaint, as amended, would be subject

to dismissal.” Jefferson County School Dist. No. R–1 v. Moody’s Investor’s Services, Inc.,

175 F.3d 848, 859 (10th Cir. 1999). Additionally, “a court may consider a movant’s ‘undue

delay’ or ‘dilatory motive’ in deciding whether to grant leave to amend under Rule 15(a).”

Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 553 (2010) (quoting Foman v. Davis, 371

U.S. 178, 182 (1962)). Under this Court’s Local Civil Rule 7.1(k), motions to amend must,

inter alia, specifically set forth what is being amended.

Furthermore, leave to amend should be denied “where the moving party was aware

of the facts on which the amendment was based for some time prior to the filing of the

motion to amend.” Federal Ins. Co. v. Gates Learjet Co., 823 F.2d 383, 387 (10th Cir.

1987). The Tenth Circuit has stated, “[W]e do not favor permitting a party to attempt to

salvage a lost case by untimely suggestion of new theories of recovery[.]” Viernow v.

Euripides Development Corp., 157 F.3d 785, 800 (10th Cir. 1998); see also Ochieno v.

Sandia National Laboratories, 2019 WL 161503, at *4 (D.N.M. Jan. 10, 2019) (Denying

leave to amend where “[p]laintiff seeks to make the complaint ‘a moving target’ in an effort

to save his case from dismissal.”) (quoting Viernow, 157 F.3d at 800).

A complaint must contain “a short and plain statement of the claim showing that the

pleader is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

required, but the statement of the claim under Rule 8(a)(2) must be “more than an

unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing

Papasan v. Allain, 478 U.S. 265, 286 (1986)). “To survive a motion to dismiss, a complaint

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

plausible on its face.’ A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555,

556, 557, 570). “While legal conclusions can provide the framework of a complaint, they

must be supported by factual allegations.” Id. at 679.

IV. Analysis

Plaintiff attaches to his motion the proposed Second Amended Complaint, which is

twenty-three pages in length (plus nearly fifty pages in attachments), as opposed to the nine

pages dedicated to the Amended Complaint. Plaintiff’s motion does not set forth what is

being amended, and if the proposed order did so, it is now unavailable to the Court. The

Court declines to deny Plaintiff’s motion on this basis, however, and instead proceeds to

address the merits of the motion in light of “the judicial system’s strong predisposition to

resolve cases on their merits.” Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (1992). Though

Plaintiff enumerates two causes of action, it is clear that he is attempting to raise three, as

the “First Cause of Action” (“Count 1”) asserts both race and age discrimination, and the

“Second Cause of Action” (Count 2”) alleges sex/gender discrimination. Docket No. 31,

Ex. 1, pp. 19-22, ¶¶ 34-42.

Defendant objects to Plaintiff’s request for leave to file a Second Amended

Complaint, contending that: (i) Plaintiff’s claim of race discrimination, asserted for the

first time, is untimely; and (ii) amendment of the claims of age and gender/sex

discrimination would be futile.

A. The Race Discrimination Claim is Untimely and Insufficiently Alleged.

Plaintiff filed the motion for leave to file a Second Amended Complaint on

September 1, 2023, two years and five months after filing the original Complaint on March

30, 2021, and over two years after Defendant originally moved to dismiss and Plaintiff

filed the Amended Complaint. In the Tenth Circuit, “untimeliness alone” is “sufficient

reason to deny leave to amend.” Pallottino v. City of Rio Rancho, 31 F.3d 1023, 1027

(10th Cir. 1994). The is particularly applicable where, as here, Plaintiff proposes new

theories only after his primary theories were previously dismissed. See Viernow, 157 F.3d

at 799-800 (denying leave to amend where Plaintiff sought leave to amend nineteen months

after filing original complaint and only after Defendants’ summary judgment motion had

been orally granted, noting it was clear he advanced a new theory because primary theory

had been dismissed) (citing Pallottino, 31 F.3d at 1027).

Plaintiff contends that race discrimination is not a new claim, because he included

allegations of race discrimination in the earlier iterations of the Complaint, but this simply

acknowledges that this new claim is based on facts Plaintiff had been aware of well before

filing the motion for leave to amend. Federal Ins. Co., 823 F.2d at 387. Moreover, as a

structural matter, Plaintiff’s proposed Second Amended Complaint is deficient because it

asserts multiple claims for relief within Count 1, which is improper under Fed. R. Civ. P.

8. See Park v. TD Ameritrade Tr. Co., 2010 WL 4608225, at *2 (D. Colo. Nov. 5, 2010)

(“[A]s a structural matter, the Title VII Complaint is deficient because it purports to assert

multiple claims for relief within each ‘Claim for Relief.’”). This is particularly problematic

here, where Count 1 alleges “Violation of Race and Age Discrimination in Employment

Act,” but only cites to the ADEA with no jurisdictional basis for a race discrimination

claim. For all these reasons, any attempt to assert a claim for race discrimination in the

proposed Second Amended Complaint is hereby denied.

B. Claims for Age and Sex/Gender Discrimination

To prove a case of age or gender discrimination, “a plaintiff must provide either

direct evidence of discrimination or prevail under the burden-shifting framework of

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973).” Morman v. Campbell

County Memorial Hospital, 632 Fed. Appx. 927, 933 (10th Cir. 2015) (“Under McDonnell

Douglas, the plaintiff must first prove a prima facie case of discrimination. If she does so,

then the burden ‘shifts to the defendant to produce a legitimate, non-discriminatory reason

for the adverse employment action.’ If the defendant provides such a reason, ‘the burden

then shifts back to the plaintiff to show that the plaintiff's protected status was a

determinative factor in the employment decision or that the employer's explanation is

pretext.’”) (quoting Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012)). The

Court is thus required, under Twombly and Iqbal, to evaluate the plausibility of the

Plaintiff’s claims in this case. And “we can evaluate [his] claim’s plausibility only by

considering the prima facie case of discrimination that []he would need to prove in court.”

Morman, 632 Fed. Appx. at 933. Although Plaintiff “need not set forth a prima facie case

for discrimination[, ]he must allege facts that make such a claim at least plausible.” Id.

In the original Motion to Dismiss (Docket No. 15), Defendant urged dismissal for,

as relevant, failure to state a claim because the Amended Complaint offered no allegations

that a Plant official made discriminatory statements, or that he was denied selection under

circumstances giving rise to an inference of unlawful discrimination. Although Plaintiff

alleged that three females in their mid-thirties were given promotions and he was not,

Defendant argued the Amended Complaint failed to identify a hiring official related to

those positions who was also involved when Plaintiff was not selected for the position for

which he applied. The Amended Complaint also failed to alleged Plaintiff’s age or that he

is a member of a protected class, and that the women hired were insignificantly younger

than Plaintiff.

Plaintiff’s proposed Second Amended Complaint now clearly identifies his age, but

refers to the ages and genders of others in generalized terms, e.g., “female 50+,” “male age

40+,” “female 30+,” and “female 20+.” Docket No. 31, Ex. 1, p. 3, ¶ 9; p. 9, ¶¶ 20-21.

Defendant contends Plaintiff is in the same age group or younger than the managers or

hires he references, and that Plaintiff offers no allegations that the hiring official made

discriminatory comments or other evidence giving rise to an inference of unlawful

discrimination.

ADEA Claim. “To prove a prima facie case of age discrimination, a plaintiff must

show: 1) []he is a member of the class protected by the [ADEA, i. e. over forty years old];

2) []he suffered an adverse employment action; 3) []he was qualified for the position at

issue; and 4) []he was treated less favorably than others not in the protected class.” Jones

v. Oklahoma City Public Schools, 617 F.3d 1273, 1279 (10th Cir. 2010) (quotation

omitted). Under the ADEA, age must be the “but-for” cause of the adverse treatment at

issue where a Plaintiff seeks forward-looking relief such as an injunction. See Babb v.

Wilkie, 589 U.S. 399, 408 (2020) (“What follows instead is that, under [29 U.S.C. § 633a,

which governs federal employment], age must be the but-for cause of differential

treatment, not that age must be a but-for cause of the ultimate decision.”) (emphasis in

original). As the Sixth Circuit states, “To establish that he is entitled to injunctive relief,

[Plaintiff] need only show that ‘age discrimination play[ed] any part’ in the decision to

demote him.” Bledsoe v. Tennessee Valley Auth. Bd. of Directors, 42 F.4th 568, 578 n.2

(6th Cir. 2022). Accordingly, “plaintiffs are not without a remedy if they show that age

was a but-for cause of differential treatment in an employment decision but not a but-for

cause of the decision itself. In that situation, plaintiffs can seek injunctive or other forward-

looking relief.” Babb, 589 U.S. at 406, 414. However, “[t]o obtain such remedies [as

reinstatement, backpay, compensatory damages, or other forms of relief related to the end

result of an employment decision] these plaintiffs must show that age discrimination was

a but-for cause of the employment outcome.” Babb, 589 U.S. at 413.

Plaintiff’s proposed Second Amended Complaint seeks only backward-looking

relief, including compensatory and punitive damages, promotion, and other benefits and

forms of relief. Docket No. 31, Ex. 1, p. 20, ¶ 37 & p. 22, ¶¶ (A)-(D). Plaintiff’s allegations

appear sufficiently plausible such that, at this stage, age could have been part of his

differential treatment. Upon review of the well-pleaded, nonconclusory allegations in

Plaintiff’s Proposed Second Amended Complaint and having carefully reviewed the

briefing, the court can extract no support, however, for an inference that Plaintiff’s age was

a but-for cause of the failure to promote him. See Babb, 589 U.S. at 406; see also Stenger

v. Deffenbaugh Industries, Inc., 2010 WL 11628003, at *2 (D. Kan. May 10, 2010) (“In

his complaint, Plaintiff only alleges that age was a motivating factor. As stated in Gross

[v. FBL Financial Services, Inc., 557 U.S. 167, 176 (2009)] though, age must be the ‘but-

for’ factor, not merely a motivating factor.”). Accordingly, the Court finds allowing

amendment of this claim would be futile. See Anderson v. Suiters, 499 F.3d 1228, 1238

(10th Cir. 2007) (“A district court may refuse to allow amendment if it would be futile.”);

see also Bylin v. Billings, 568 F.3d 1224, 1229 (10th Cir. 2009) (indicating that denial of

leave to amend is “justified upon a showing of undue delay, undue prejudice to the

opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments

previously allowed, or futility of amendment.”) (emphasis added) (internal quotation marks

omitted)).

The Court also notes that the procedural posture of the pending motion lends weight

against granting the motion on this claim. First, the “untimeliness alone”3 is “sufficient

reason to deny leave to amend.” Pallottino, 31 F.3d at 1027. Second, “[w]here the party

seeking amendment knows or should have known of the facts upon which the proposed

amendment is based but fails to include them in the original complaint, the motion to amend

is subject to denial.” Id. (quotation omitted).

3 Untimeliness here refers to the two years between being put on notice of deficiencies by

Defendant’s Motion to Dismiss and the Court’s ultimate ruling which prompted the request to

amend.

Title VII Claim. As to the sex/gender discrimination claim, Plaintiff alleges the

officials at the Plaint consistently hired females in their mid-30’s, because they previously

hired four women in their mid-30s for various promotions at the Plant. Defendant asserts

that, accepting these allegations as true, Plaintiff does not include their dates of hire, the

time frame in which the decisions were made, or the decision makers as to those four

employees. Defendant particularly emphasizes that Plaintiff’s proposed claim still

includes no allegation that the hiring managers involved in denying him selection were the

same ones involved in the hiring decisions of any of the four women, which is critical

because only discrimination by the decision maker is relevant.

Under Title VII, “[t]o state a prima facie case of discrimination [based on failure to

promote] under McDonnell Douglas, a plaintiff must demonstrate by a preponderance of

the evidence that (1) []he belongs to a protected class; (2) []he applied for an available

position for which []he was qualified; (3) []he ‘was rejected under circumstances which

give rise to an inference of unlawful discrimination.’” Tabor v. Hilti, Inc., 703 F.3d 1206,

1216 (10th Cir. 2013) (quoting Texas Dep’t of Comm. Affairs v. Burdine, 450 U.S. 248,

253 (1981)). Importantly, however, “[i]n determining whether a Title VII disparate

treatment claim is plausibly alleged, we do not require plaintiffs to establish a prima facie

case. Instead, we consider whether they have set forth a plausible claim in light of the

elements of their claim.” Frappied v. Affinity Gaming Black Hawk, LLC, 966 F.3d 1038,

1050 (10th Cir. 2020).

Historically in the Tenth Circuit, “in cases where the plaintiff is a member of a

historically favored group, the Tenth Circuit has instructed that ‘heightened standards are

necessary for a prima facie showing to preserve the integrity of [Title VII] and Congress’s

intent in enacting it.’” Bowen v. City & Cnty. of Denver, Denver Sheriff Dep’t, 2025 WL

1101152, at *2 (D. Colo. Apr. 14, 2025) (quoting Adamson v. Multi Cmty. Diversified

Servs., Inc., 514 F.3d 1136, 1144 (10th Cir. 2008)). The Supreme Court recently abrogated

this heightened standard, however, holding that “[b]y establishing the same protections for

every ‘individual’—without regard to that individual’s membership in a minority or

majority group—Congress left no room for courts to impose special requirements on

majority-group plaintiffs alone.” Ames v. Ohio Dep’t of Youth Servs., 605 U.S. _, 145 S.

Ct. 1540, 1546 (2025). Accordingly, “the standard for proving disparate treatment under

Title VII does not vary based on whether or not the plaintiff is a member of a majority

group.” Id.

With respect to Plaintiff’s claim of gender discrimination, there is no dispute that

he is a member of a member of a majority group, but the Court recognizes that Title VII

proscribes “‘discriminatory preference for any group, minority or majority[.]’” Ames, 145

S. Ct. at 1546 (quoting Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971)). Further, it

is not disputed that Plaintiff applied for a position for which he was qualified. The parties’

disagreement centers on the third element, which requires Plaintiff to prove that the

circumstances surrounding the Plant officials’ failure to promote him give rise to an

inference of discrimination.

Defendant contends Plaintiff fails to meet this burden and thus amendment would

be futile because the proposed Second Amended Complaint would be subject to dismissal.

The Rule 12(b)(6) dismissal standard, however, “does not require that Plaintiff establish a

prima facie case in [his] complaint,” instead, “the elements of each alleged cause of action

help to determine whether Plaintiff has set forth a plausible claim.” Khalik, 671 F.3d at

1192. While it is clear that there are genuine issues of fact regarding Plaintiff’s proposed

comparators, including that a female comparator received coaching and assistance

unavailable to Plaintiff, those are better resolved at the summary judgment stage. Though

perhaps tenuous, the Court finds Plaintiff has plausibly alleged a claim of sex or gender

discrimination, and thus amendment of this claim would not be futile.

In sum, Plaintiff failed to state a claim for relief of either race discrimination or age

discrimination under the ADEA (Cause of Action 1). Plaintiff’s proposed Second

Amended Complaint does, however, set forth a plausible allegation of sex or gender

discrimination under Title VII. Plaintiff shall be given fourteen (14) days to file a Second

Amended Complaint. The proposed Second Amended Complaint must be revised to reflect

the rulings in this Order, leaving one remaining cause of action; therefore, amending to

drop certain claims is required as set forth in this Order. Amendment to add parties or

claims is not contemplated by this order. A redline version of the original Proposed

Second Amended Complaint (“Complaint”) as amended must be attached to the

Second Amended Complaint.

CONCLUSION

Accordingly, the Court finds that the Plaintiff’s Motion Seeking Leave to Amend

[Docket No. 31] is hereby GRANTED IN PART and DENIED IN PART. Plaintiff’s

deadline to file a revised Second Amended Complaint is July 22, 2025. Defendant’s

deadline to renew any motion to dismiss is August 5, 2025.

IT IS SO ORDERED this 8th day of July, 2025.

GERALD L. JACKSON

UNITED STATES MAGISTRATE JUDGE