July 23, 2019

Tenth Circuit: District Court Within Discretion to Deny Late-Filed Motion to Amend Complaint

The Tenth Circuit Court of Appeals issued its opinion in Zisumbo v. Ogden Regional Medical Center on Friday, September 4, 2015.

Raymond Zisumbo worked at Ogden Regional Medical Center (ORMC) as a CT scan technician from March 2005 to October 2009. In 2009, Anthony Rodebush became Zisumbo’s supervisor. About the same time, Zisumbo applied for a promotion to a vacant CT Coordinator position. Rodebush expressed curiosity about why Zisumbo was eager for the promotion, and asked whether he’d ever been fired from other jobs. In response, Zisumbo produced letters from three previous employers to prove he was not fired, which Rodebush filed without reviewing. On September 15, 2009, at a staff pizza party, Rodebush remarked that Zisumbo wanted the CT Coordinator position and invited criticism from Zisumbo’s coworkers about why he was not suited for the job. Later that day, Zisumbo accused Rodebush of treating him differently because Zisumbo is Hispanic. Rodebush informed Zisumbo that he should discuss his concerns with the human resources manager, Chris Bissenden. Zisumbo interpreted this as a threat. Rather than discuss his concerns with Bissenden, Zisumbo filed a complaint with the Utah Antidiscrimination and Labor Division about a week after the pizza party alleging race discrimination, and also contacted ORMC’s ethics line with complaints of race discrimination and unprofessional behavior. ORMC’s record of the call noted only complaints of unprofessional behavior.

Judd Taylor, ORMC’s ethics compliance officer, investigated Zisumbo’s ethics line complaint and met privately with Rodebush during his investigation. He later met with Zisumbo and Rodebush, and the following day issued a written warning to Zisumbo for events that had occurred months earlier. Taylor and Rodebush also reviewed the letters Zisumbo had provided from his previous employers and immediately became suspicious that they were fabricated. On October 8, Rodebush and Taylor gave the letters to Bissenden, who began investigating their authenticity and discovered that at least one letter was falsified. Later that day, Taylor, Bissenden, and Rodebush met with Zisumbo and terminated his employment based on dishonesty because of the falsified letters.

On May 2, 2010, Zisumbo filed this action, alleging a Title VII hostile work environment claim. Six months later, ORMC permitted Zisumbo to amend his complaint to include Title VII claims based on race discrimination, hostile work environment, failure to promote, and discriminatory termination; a Title VII retaliation claim asserting that Zisumbo was fired for complaining about race discrimination; and a state law claim for breach of the duty of good faith and fair dealing. The district court entered a stipulated order setting deadlines for the litigation, including a September 2011 deadline for amending pleadings. However, in January 2012, Zisumbo sought to amend his complaint to add a claim of race discrimination under 42 U.S.C. § 1981. The district court denied his motion. Zisumbo then filed a new lawsuit in the same court alleging the same claims he unsuccessfully sought to add to his previous complaint and moved to consolidate the two actions. The district court dismissed his second complaint, and Zisumbo appealed to the Tenth Circuit. A prior panel of the Tenth Circuit ultimately rejected his “ill-conceived effort to end-run the district court’s decision.”

In the meantime, the district court granted summary judgment to ORMC on Zisumbo’s good faith and fair dealing, hostile work environment, and failure to promote claims. Zisumbo moved for reconsideration and alternatively sought to amend his complaint, which motions the district court denied. Zisumbo’s remaining claims were tried to a jury, which ultimately found against him on his discriminatory termination claim but for him on his retaliatory termination claim. Zisumbo sought back pay up to trial and reinstatement or front pay up to three years, but the district court foreshortened his award based on Zisumbo’s misdemeanor conviction for assaulting his daughter. Both parties sought attorney fees and ORMC moved for judgment as a matter of law on Zisumbo’s retaliatory termination claim. The district court denied ORMC’s motion and awarded attorney fees to Zisumbo, reducing his request based on his limited success in the litigation.

On appeal, the Tenth Circuit first addressed Zisumbo’s claim that the district court abused its discretion by not allowing him to amend his complaint after the September 2011 deadline. Although Zisumbo asserted his lawyer did not realize he could assert the § 1981 claim until January 2012, he possessed all the facts forming the basis of the claim by April 2011. The Tenth Circuit attributed the failure to timely amend his complaint to Zisumbo and found it well within the district court’s discretion to deny the proposed amendment. The Tenth Circuit also found no error in the district court’s grant of summary judgment to ORMC on Zisumbo’s good faith and fair dealing claim, finding that Zisumbo was an at will employee and had no contractual relationship with ORMC to necessitate a duty of good faith and fair dealing.

The Tenth Circuit next addressed ORMC’s cross-appeal regarding the district court’s denial of its renewed motion for judgment as a matter of law on the retaliatory termination claim. ORMC disputed that there was a causal nexus between the employee’s opposition to discrimination and the employer’s adverse action. The Tenth Circuit found ample record support for the nexus, including that Bissenden’s termination decision was made based on more than one of the falsified letters and that she acted together with Taylor and Rodebush in making the termination decision. ORMC also argued that no reasonable jury could have concluded that its decision to terminate Zisumbo was pretextual, but the Tenth Circuit again disagreed, finding that the timing of the termination supported an inference that he was terminated because he complained of discrimination.

Zisumbo also argued the district court erred in denying his request for a punitive damages instruction. The Tenth Circuit found Zisumbo’s proffered cases inapposite, and instead noted that he must show that ORMC, not just its employees, failed to make good faith efforts to comply with Title VII. Because ORMC had well established anti-discrimination policies, trained its managers on those policies, and consistently investigated reports of discrimination, the Tenth Circuit agreed with the district court that punitive damages were inappropriate.

Finally, the Tenth Circuit evaluated Zisumbo’s argument that he should have received more in back pay and front pay or reinstatement. The Tenth Circuit agreed with the district court that ORMC would have terminated Zisumbo based on the misdemeanor assault conviction and therefore it was appropriate to cut off the back pay award after the date Zisumbo pleaded guilty to the charge. The Tenth Circuit likewise approved of the method used by the district court to calculate the back pay award. The Tenth Circuit also approved of the district court’s reduction of the attorney fee award based on Zisumbo’s limited success in litigation.

The Tenth Circuit affirmed the district court.

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