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Betty A. Jacober v. United States Department of

September 22, 2011


The opinion of the court was delivered by: Stiehl, District Judge


Before the Court are four pending motions: (1) defendant Gary Mersinger's ("Mersinger") motion to dismiss Mersinger as a defendant (Doc. 5), to which the plaintiff filed a response (Doc. 12); (2) defendants' motion to dismiss Count III in its entirety and all allegations of constructive or wrongful discharge (Doc. 6), to which plaintiff filed a response (Doc. 13); (3) defendants' motion to strike (Doc. 19) the plaintiff's amended complaint (Doc. 18), to which plaintiff did not file a response; and (4) plaintiff's motion for leave to file an amended complaint (Doc. 26), to which the defendants filed a response in opposition (Doc. 27).


This cause of action arises from plaintiff's employment with and eventual resignation from the United States Department of Agriculture ("USDA"), spanning from approximately June 30, 1997, to April 11, 2008. During her tenure at the USDA, Plaintiff worked as a Rural Development Specialist at the USDA Service Center located in Madison County, Illinois. Defendant Mersinger was a Rural Development Manager, and plaintiff's supervisor at the service center.

Plaintiff alleges that in October 2007, she filed a complaint with the USDA, alleging sexual harassment and retaliation by her supervisor, Mersinger. The USDA conducted an administrative review and issued a final order on March 11, 2010, in which the USDA and EEOC allowed a 90 day period in which plaintiff could file suit. This cause of action was filed pursuant to that order.

Plaintiff's original complaint (Doc. 2) consists of 3 Counts: (I) sexual harassment, (II) retaliation, and (III) intentional infliction of emotional distress.

Defendants note that in each count plaintiff alleges that she was essentially "forced" to resign from her position due to harassment and hostile work environment, which equates to constructive or wrongful discharge from federal employment. Plaintiff does not set out a separate claim for constructive or wrongful discharge, but pleads it generally in Counts I through III.

On May 6, 2011, plaintiff filed an amended complaint including a fourth Count alleging intentional retaliation against plaintiff based upon her need for accommodation related to a serious back condition, all in violation of the Family Medical Leave Act (Doc. 18).

The Scheduling and Discovery Order was filed on February 4, 2011 (Doc. 10), setting July 8, 2011, as the discovery cutoff, however, Magistrate Judge Philip M. Frazier recently extended the discovery deadline to October 11, 2011, and the deadline for dispositive motions to October 24, 2011 (Doc. 29).


Before considering the motions to dismiss related to the original complaint, the Court will determine whether it will allow plaintiff to file an amended complaint.

Under Fed. R. Civ. P. 15(a), the plaintiff may amend her pleading once as a matter of course within 21 days after serving it, or if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier. Otherwise, the plaintiff may only amend its complaint "with the opposing party's written consent or the court's leave." Fed. R. Civ. P. 15(a)(2). The Rule instructs the Court to give leave freely when justice so requires. Id. Here, plaintiff cannot amend her complaint as a matter of course under the rule because she filed the amendment eleven (11) months after serving her original complaint and more than four (4) months after defendants answered and filed motions pursuant to Fed. R. Civ. P. 12(b). Plaintiff has not obtained the defendant's written consent, and in fact, defendants have filed a motion to strike the amended complaint (Doc. 19), and a response in opposition to the plaintiff's motion to amend (Doc. 27). Therefore, under Rule 15, plaintiff may only amend its complaint if the Court grants leave to do so.


Plaintiff filed her amended complaint on May 6, 2011 (Doc. 18), without leave of the Court, but later requested leave on June 7, 2011 (Doc. 26).*fn1 Before plaintiff filed her amended complaint, defendants had already filed an answer (Doc. 4), and two motions to dismiss (Docs. 5, 6), all on January 4, 2011. Plaintiff asserts that she should be allowed to file her amended complaint because the proceeding is still in its early stages. Defendants oppose plaintiff's amendment, pointing to the July 8, 2011 discovery deadline set by the Court in its Scheduling and Discovery Order ...

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