The opinion of the court was delivered by: Richard W. Roberts United States District Judge
Plaintiff Igor Brodetski, *fn1 a white male of Russian origin and an employee of the Russian Branch of the Voice of America ("VOA"), a division of the United States Information Agency ("USIA"), brought this claim of national origin and racial discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2, 2000e-3 (1994), as amended ("Title VII"), alleging that three different entities - - the Equal Employment Opportunity Commission ("EEOC"), the Office of Civil Rights ("OCR") within USIA, and the Freedom of Information Act ("FOIA") Office within USIA - - improperly handled administrative complaints he had filed. Defendants have moved to dismiss or, in the alternative, for summary judgment, and plaintiff has moved to amend his complaint. Plaintiff's motion will be granted, but since his complaint, even as amended, fails to state a claim upon which relief can be granted, defendants' motion to dismiss will be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).
Brodetski has been employed as an International Radio Broadcaster with VOA since 1984. (Defs.' Mem. in Supp. of Defs.' Mot. Dismiss and/or Summ. J. ("Defs.' Mem.") at 2.) He began to complain of retaliation after he participated in a colleague's 1989 EEO proceeding against defendants. (Compl. at 4.) At the time plaintiff filed this action, he had submitted fifty-eight separate complaints with USIA'S OCR and had appealed many of the complaints to the EEOC after the OCR dismissed them. (Compl. at 5.) Each of these fifty-eight complaints alleged that defendants retaliated against plaintiff for his protected EEO activities. *fn2
In addition to his fifty-eight OCR complaints, plaintiff filed two complaints with the OCR in early 1997 that alleged the OCR had discriminated against him because of his race and national origin. (Compl. at 6.) He claimed that the OCR inadequately processed his complaints by exhibiting a "definite pattern" of "deliberate procrastination and sabotage" in their investigation, slow processing and consistent dismissal of his numerous retaliation complaints. (Compl. at 2, 6.) Plaintiff stated:
[T]he officials of the Office of Civil Rights, United States Information Agency, being exclusively the representatives of the Negro race, refuse to recognize the claims of discrimination and retaliation when they come from a member of the White race, apparently considering themselves to be the sole victims of all the evils of society. (Compl. at 6.) Plaintiff also alleged that his national origin was a basis for defendants' actions, stating, "I consider the fact that I am Russian to be an additional factor in the situation . . . Russophobia is an established fact in the USA." (Compl. at 6.) *fn3
Plaintiff filed these two complaints with and against the OCR, and defendants transmitted them to the Department of State's Office of Equal Employment Opportunity and Civil Rights ("S/EEOCR") for processing. (Compl. at Ex. 1b.) According to the S/EEOCR, this procedure is part of a standard reciprocal agreement that they have with the USIA to exchange "EEO cases that are considered or can be perceived as a conflict of interest . . . i.e. cases that are filed against either office." (Id.) On January 23, 1998, S/EEOCR sent plaintiff the agency's final decision dismissing his discrimination complaints against the OCR. The decision stated that plaintiff's "mere allegations" do not "constitute an actionable claim." (Id.) Instead of appealing to the EEOC, plaintiff filed a civil action in this Court, in accordance with the S/EEOCR's final decision letter and pursuant to 29 C.F.R. § 1614.110 (West 2000). (Id.)
Plaintiff's complaint includes the two allegations of discrimination against the OCR that were dismissed by the S/EEOCR, as well as several other allegations of discrimination made against both the EEOC and USIA's FOIA office. Specifically, plaintiff alleged that the OCR violated Title VII when it: (1) delayed processing his EEO complaints; (2) refused to investigate or respond to several of his complaints; (3) falsified dates in their records to further delay his complaints and avoid certain time limits; (4) misinterpreted and mischaracterized the facts outlined in his EEO complaints; (5) disregarded his civil rights and protected the VOA management by dismissing his complaints; (6) mishandled the investigation of his complaints; (7) arbitrarily consolidated complaints that were not related to each other to further confuse and complicate the EEO process; and (8) generally mishandled his complaints overall. (Compl. at Exs. 1-5.) Plaintiff also alleged that the FOIA office within USIA denied him access to evidentiary information needed to fortify his complaints against USIA and the VOA management. (Defs.' Mem. at Ex. B.)
In addition, plaintiff alleged that the EEOC: (1) delayed processing his EEO complaints; (2) misinterpreted the facts outlined in his EEO complaints; (3) remanded certain complaints to the OCR for further review as an additional method of delaying the process; (4) required that administrative remedies be exhausted before processing complaints when it was the OCR that was actually delaying the process; and (5) generally mishandled his EEO complaints overall. (Compl. at Exs. 1-5.
MOTION TO CONSOLIDATE OR TO AMEND
Plaintiff filed a motion to consolidate or to amend, seeking to join to the complaint an additional incident of alleged discrimination that occurred since he filed this action. (Pl.'s Mot. to Consolidate (or to Amend) of 12/6/00 at 1.) Plaintiff asserts that the additional incident, like the incidents alleged in his original complaint, shows that defendants improperly handled his administrative complaints. Defendants oppose consolidation, claiming that the new incident is not the subject of an action pending before the court as required under Fed. R. Civ. P. 42(a), and that the new incident and the incidents in the original complaint do not involve a common question of law and fact. (Def.'s Opp'n to Pl.'s Mot. to Consolidate at 2-3.) Construing plaintiff's motion as one to amend, and finding amendment proper, I will grant this motion.
While the right to amend or supplement the original pleading is not automatic, see Foman v. Davis, 371 U.S. 178, 182 (1962), "leave [of the court] shall be freely given when justice so requires." Fed. R. Civ. P. 15(a). Factors to consider in evaluating a motion to amend include "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc." Foman, 371 U.S. at 182. At the same time, "refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion." Id.
Defendants do not address the substance of the newly alleged incident in their opposition to plaintiff's motion and offer no argument that the amendment would unduly prejudice them. There is no indication that plaintiff has unduly delayed in filing his December 6, 2000 motion to amend or that plaintiff acted in bad ...