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Springer v. Brennan

United States District Court, E.D. Michigan, Southern Division

July 3, 2018

Cyerra R. Springer, Plaintiff,
v.
Megan Brennan, Postmaster General of United States, Defendant.

          OPINION & ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO AMEND

          SEAN F. COX UNITED STATES DISTRICT COURT JUDGE

         Plaintiff Cyerra R. Springer (“Plaintiff”) is an employee of the United States Postal Service. Plaintiff brought this action against Defendant Megan Brennan, Postmaster General of the United States, asserting that she was discriminated against based upon her race and light-skinned complexion, and her gender, in violation of Title VII, and faced a hostile work environment, and that she was retaliated against for having asserted her rights under Title VII.

         The matter is currently before the Court on Plaintiff's motion - filed nearly a full year after she filed this action - seeking leave to file an amended complaint. In her proposed First Amended Complaint, Plaintiff would add two new counts: 1) a count to clarify that her gender harassment claim includes a claim for sexual harassment (her proposed Count VI); and 2) an assault claim against a new Defendant, Post Office Manager Jeanette Powell (her proposed Count VII). The Government only opposes the motion to the extent that it adds an assault claim. The parties have briefed the issues and the Court heard oral argument on June 26, 2018. For the reasons set forth below, the Court shall GRANT THE MOTION IN PART AND DENY IT IN PART. The Court shall GRANT the motion to the extent that it will grant Plaintiff leave to file an amended complaint in order to assert her proposed Count VI. The Court shall DENY Plaintiff's request to assert an assault claim in this action because: 1) Plaintiff unreasonably delayed bringing this claim, as she was aware of the basis of it when she filed her original suit and waited two full months after her own deposition before seeking to add a new party to this case; 2) the assault claim is futile as to Powell in her individual capacity because she was acting within the scope of her federal employment and she is therefore immune under the Westfall Act, which would require any claim, if one can be brought, to be brought against the United States; and 3) amendment to assert an assault claim against the United States, or against Powell in her official capacity, would be futile because the Federal Tort Claims Act excepts assault claims from coverage.

         BACKGROUND

         Plaintiff is an employee of the United States Postal Service. On May 3, 2017, Plaintiff brought this action against Defendant Megan Brennan, Postmaster General of the United States, asserting that she was discriminated against based upon her race and light-skinned complexion, and her gender, in violation of Title VII, and faced a hostile work environment, and that she was retaliated against for having asserted her rights under Title VII.

         The Scheduling Order in this matter provides that discovery closed on May 4, 2018, and that dispositive motions were due by June 18, 2018.[1]

         On February 21, 2018, Plaintiff's deposition was taken. Plaintiff's Counsel asserts that “[d]uring her deposition, Plaintiff testified to events that amount to assault” by Jeanette Powell while the two women were working at the post office. (Pl.'s Br. at 2). The relevant portion of Plaintiff's deposition testimony is as follows:

And so I'm walking over there. And I see Jeanette at the supervisor desk. And when I saw her I sped up because I didn't want her to say anything to me. And she called my name. And I ignored her. And then she called it again. And I turned around. And she said, are you working over here. And, you know, she put me over here, you know, I'm working over here. And I said yes. And I continued to walk.
And then she called me again. She said, I need to assign you to a machine. And I said, you know, I've already got an assignment. I kept walking. And that's when she stopped me. She got very irate. And she said, you need to wait a minute. Ryan is below me. I'm in charge. And she's jumping her hands at me. And like her head is just moving up and down and she's stepping towards me. I backed up. I wouldn't look at her because I thought I was going to be attacked . . .
And she did this on several occasions. She was very irate. She was very con- every conversation was very confrontational. I thought, you know, I was scared.
Q. When you say she was jumping her hands at you what do you mean?
A. Like she was like jumping like.
Q. So you're moving your arms up and down?
A. Yeah. Like if you were, if you were in public and you saw someone yelling at you, swearing at you and jumping you in this way, you would probably get ready to defend yourself and call the police.
Q. Was she raising her arms in any way?
A. No. They were just probably stayed, probably reached her face, if anything.
Q. Did she ball up her fists?
A. Not that I can recall.
Q. Did she draw back like she was getting ready to hit you?
A. Not that - her arms were moving back but she - not that - not a particular draw back like I was going to be struck.
Q. Did she say anything to you physically threatening? Like I'll kick your ass, I'm about to hit you, anything that made you think she was about to engage in physical contact?
A. No. It was only her body language. She was yelling and swearing at me about the job. But she was - her body language showed that she was getting ready to fight me.
. . . .
Q. Did she ever make physical contact with you?
A. Like?
Q. Did she touch you in any way? Did she physically contact you?
A. No.
Q. Did she ever physically threaten you, by verbally?
A. No, not verbally saying, you know, like you said, I'm going to kick your ass, no.

(Pl.'s Dep. at 88-90 & 109).

         Plaintiff's Counsel states that, after the February 21, 2018 deposition ended, she notified defense counsel that she would be amending the complaint to add an assault claim against Powell. (Id. at 3). She states that she “indicated that the amendment would not take place until after the deposition transcript was received to assure accurately updated facts.” (Id.).

         Notably, however, Plaintiff's May 3, 2017 original complaint already contained a general version of the factual allegations to which she testified to during her deposition and even used the word “assault” to describe Powell's conduct towards her:

30. Powell verbally reprimanded and assaulted Plaintiff, “Cyerra this is unacceptable! It should not have taken you guys this f***ing long to finish second pass and a carrier route. Pull this s**t down now?” Powell stood over Plaintiff and her partner ...

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