Free Response to Motion - District Court of Arizona - Arizona

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Angela M. Wilson-Goodman State Bar No. 017558 WILSON-GOODMAN & FONG, P.C. 538 S. Gilbert Road, Suite 101 Gilbert, Arizona 85296 (480) 503-9217 Fax: (480) 503-9219 Attorneys for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

MARY CSANYI, Plaintiff, vs. REGIS CORPORATION; SUPER CUTS, Defendants.

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Case No.: CV-03-1987-PHX-JAT PLAINTIFF'S RESPONSE TO MOTION TO AMEND AMENDED ANSWER

Plaintiff, MARY CSANYI, by and through counsel undersigned, hereby Responds to Defendant's Motion to Amend Amended Answer as follows: Rule 15(a), Fed.R.Civ.P. provides that "a party may amend the party's pleading once as a matter of course..." Defendants filed their original Answer on January 5, 2004, and they filed an Amended Answer on January 20, 2004. A year and one-half later, Defendants are now seeking to amend their Answer for a second time. Race Discrimination Defendants allege in their Motion to Amend Amended Answer dated September 26, 2005, that Plaintiff failed to timely file a charge of race discrimination with the Equal Opportunity Commission ("EEOC") and, therefore, they had no notice she was filing a claim for race discrimination.

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In her original Complaint, Plaintiff alleged she was discriminated against due to her age, and national origin, Hispanic, in violation of Title VII of the Civil Rights Act of 1967, as amended. The Plaintiff was initially pro se at the time this Complaint was filed. As a result, she stated her claim to the best of her ability. Plaintiff clearly stated she was discriminated against due to her national origin, and she also indicated she is Hispanic. Her national origin is Bolivian and her race is Hispanic. Because Plaintiff was pro se, she may not have stated her claim as clearly as an attorney would have, but it is evident from the Complaint that she felt discriminated against due to her national origin and her race. Plaintiff should not be penalized for not wording her complaint to Defense counsel's standards. Plaintiff stated the factual basis for her complaint, and she cited Title VII of the Civil Rights Act of 1967. Plaintiff did her best to satisfy the Court requirements for properly filing a civil rights action in U.S. District Court. Clearly, this Court understood that Plaintiff was making an allegation of race discrimination, as it held in its Order dated July 14, 2005, that since Defendants did not move for summary judgment on Plaintiff's claim for race discrimination, it would proceed to trial. Retaliation Defendants further allege in their Motion to Amend Amended Answer dated September 26, 2005, that Plaintiff failed to timely file a charge of retaliation with the Equal Opportunity Commission ("EEOC"). However, Plaintiff alleged retaliation and harassment in her Complaint. Plaintiff noted that she filed a harassment complaint against her employer in October, 2002, and from that time on, she experienced retaliation from her. Then, Plaintiff was transferred to a store 25 miles away and she was treated less favorably than younger, non-Hispanic employees. As this Court stated in its Order dated July 14, 2005, retaliation does not appear to be part of Plaintiff's charge with the EEOC, however; her "failure to file an EEOC complaint does not bar her absolutely from filing a Title VII suit; exhaustion of administrative remedies is not

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jurisdictional but is merely a condition precedent to suit which a defendant may waive or be estopped from asserting." Stache v. International Union of Bricklayers and Allied Craftsman AFL-CIO, 852 F.2d 1231, 1233 (9th Cir. 1988). In the instant case, this Court held that because Defendant did not raise failure to exhaust administrative remedies in either its answer or motion for summary judgment, the Court found that Defendants waived any objection and the claim is to proceed at trial. Again, Defendants are arguing that Plaintiff did not word her Complaint to their satisfaction. Plaintiff did state in her Complaint that after filing the harassment complaint against her employer, she experienced retaliation from that point forward from Ms. Ortega. Defendants argue this was an "isolated statement" and they had no notice that Plaintiff was pursuing a retaliation claim. This Court held in its Order dated July 14, 2005, that because Defendants did not move for summary judgment on Plaintiff's claim for retaliation, this claim will proceed to trial. Once again, this Court understood that Plaintiff was making a claim for retaliation. It is not credible that Defendants did not have notice that Plaintiff was filing a claim for retaliation. Clearly, the Defendants are trying to usurp the Court's previous ruling that the issues of retaliation and race discrimination be allowed to proceed to trial by attempting to add an affirmative defense of failure to satisfy administrative prerequisites. As indicated above, this Court ruled that failure of Plaintiff to file an EEOC complaint does not bar her from filing a Title VII suit. While it is in the discretion of the Court whether an amendment to pleading may be made, the amendment should be allowed unless there is good reason for its refusal. State ex rel. Barnard-Curtiss Co. v. District Court of Third Judicial District, In and For Granite County et al., 113 Mont. 107, 122 P.2d 419 (1942). The United States Supreme Court in Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227 (1962), ruled that although discretionary, leave to amend is liberally

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allowed, trial on the merits of the claim is favored, and amendment will be permitted unless there has been undue delay, bad faith, dilatory action or undue prejudice. It has also been held that denial of a late motion to amend is generally predicated upon prejudice to the opposing party. Wyshak v. City National Bank, 607 F.2d 824, 826 (9th Cir.1979). Delaying assertion of an affirmative defense for the purpose of forcing a party to incur unnecessary expenses would demonstrate bad faith, as a ground for denying leave to amend. Fed.Rules Civ.Proc.Rule 15(a), 28 U.S.C.A. Owens v. Kaiser Foundation Health Plan, Inc., 244 F.3d 708, C.A.9 (Cal.), 2001. Plaintiff argues that it would unduly prejudice her to allow Defendants to amend their Amended Answer to now try and attempt to throw out her claims for race discrimination and retaliation because this Court has already ruled that these claims shall proceed at trial. WHEREFORE, based upon the foregoing, Plaintiff requests that this Court deny Defendants' Motion to Amend Amended Answer. RESPECTFULLY SUBMITTED this 31st day of October, 2005. WILSON-GOODMAN & FONG, P.C. /s/ Angela M. Wilson-Goodman Angela M. Wilson-Goodman Attorney for Plaintiff

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ORIGINAL of the foregoing filed this 31st day of October, 2005, with: Clerk of Court United States District Court District of Arizona - Phoenix Division Sandra Day O'Connor U.S. Courthouse, Suite 130 401 West Washington Street, SPC 1 Phoenix, AZ 85003-2118 COPIES of the foregoing faxed/mailed this 31st day of October, 2005, to: The Honorable James A. Teilborg United States District Judge Sandra Day O'Connor U.S. Courthouse, Suite 523 401 West Washington Street, SPC 51 Phoenix, AZ 85003-2154 Ronald J. Stolkin FENNEMORE CRAIG, P.C. 3003 N. Central Ave., Suite 2600 Phoenix, AZ 85012-2913 Attorney for Defendant /s/ Kim Johnson

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