The opinion of the court was delivered by: Royce C. Lamberth, Chief Judge,
Before the Court is the defendant's Motion to Amend Answer, Sept. 20, 2012, ECF No. 129. Upon consideration of the motion, the plaintiff's Opposition, Sept. 24, 2012, ECF No. 130, the defendant's Reply thereto, Oct. 3, 2012, ECF No. 133, and the record herein, the Court will grant the defendant's Motion to Amend Answer.
This is a Title VII discrimination claim brought by pro se plaintiff William Shea, a White career Foreign Service officer, against the Department of State ("State"). Compl., Mar. 3, 2002, ECF No. 1. State had a Mid-Level Minority Hiring Program ("MLAAP") in force when it hired Shea in 1992. Mid-level hiring allowed State to hire a Foreign Service candidate directly into a higher grade, rather than into an entry-level grade. Mid-level hiring required a "certification of need" either that an outside hire was required, or the candidate was a member of a specified minority group under the MLAAP. Candidates for mid-level hiring were also required to (a) have substantial professional experience, (b) receive a passing grade on an oral examination, and (c) pass a background check. Shea alleged that he would have passed the screening process, but was excluded from consideration solely because of his race, as there was no certification of need. Specifically, Shea alleged harm because his hiring at entry-level rather than mid-level grade has subjected him to lower pay and fewer promotion opportunities than members of minority groups admitted under the MLAAP, in violation of his rights under Title VII. Shea also alleged constitutional violations, but the Court dismissed those claims and Shea did not appeal the dismissal. The Title VII claim is the only one still before the Court. See Shea v. Clinton, 850 F. Supp. 2d 153, 156 (D.D.C. 2012) (providing factual and procedural history of case).
The Court originally granted State's Motion to Dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) because the statute of limitations had expired. Mem. & Order, Sept. 30, 2003, ECF Nos. 15 & 16. On appeal, the U.S. Court of Appeals for the D.C. Circuit reversed and remanded. Shea v. Rice, 409 F.3d 448 (D.C. Cir. 2005) (holding that each time employer pays employee less than another for discriminatory reason, that pay event is a discrete discriminatory event with own statute of limitations).
In light of the Supreme Court's subsequent decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007)-which brought the D.C. Circuit's analysis into question-this Court granted State's Motion for Summary Judgment. Shea v. Rice, 587 F. Supp. 2d 166 (D.D.C. 2008). While this case was again on appeal, Congress passed the Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111--2, 123 Stat. 5 (2009), which abrogated the Supreme Court's holding in Ledbetter. The D.C. Circuit remanded for reconsideration in light of this intervening change. Shea v. Clinton, No. 08--5491, 2009 WL 1153448, at *1 (D.C. Cir. Apr. 2, 2009). This Court then denied the remaining portions of both parties' Motions for Summary Judgment.
Mem. Order, Aug. 11, 2009, ECF No. 69. The Court also denied State's subsequent Motion for Reconsideration. Order, Aug. 20, 2009, ECF No 71.
On July 23, 2010 the plaintiff moved to hold discovery deadlines in abeyance until resolution of his latest motions for reconsideration. ECF No. 86. In response, the Court stayed the entire matter until an April 6, 2011 status conference. Minute Order, Mar. 9, 2011. At that conference, the Court orally extended this stay. The stay remained in effect until the Court resolved plaintiff's motions for reconsideration and motion for application of judicial estoppel. See Mem. Op. & Order Denying Pl.'s Mots. Reconsideration, Mar. 23, 2012, ECF Nos. 113 & 114; Mem. & Order Denying Pl.'s Mot. Judicial Estoppel, July 30, 2012, ECF No. 118.
On August 17, 2012, State filed a second Motion for Summary Judgment, ECF No. 120, raising the affirmative defense of mitigation of damages, id. at 34--36. Plaintiff objected to State first raising this affirmative defense in a dispositive motion, rather than in a pleading. Pl.'s Opp'n to Def.'s Second Mot. Summ. J. 34, Aug. 30, 2012, ECF No. 123. In response, the defendant submitted the present Motion to Amend Answer to add the affirmative defenses of laches and mitigation of damages to its Answer. Def.'s Mot. Am., Sept. 20, 2012, ECF No. 129. The Court will grant this motion, as allowing the amendments will not unduly prejudice plaintiff.
Under Federal Rule of Civil Procedure 15(a)(2), "a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." In Foman v. Davis, 371 U.S. 178 (1962), the Supreme Court stated that leave should be "freely given" absent "any apparent or declared reason-such as 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." 371 U.S. at 182; see also Atchinson v. Dist. of Columbia, 73 F.3d 418, 425--27 (D.C. Cir. 1996) (applying Foman). "Although the grant or denial of leave to amend is committed to a district court's sound discretion, it is an abuse of discretion to deny leave to amend unless there is sufficient reason," such as the factors listed in Foman. Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996). "An answer may be amended to include an inadvertently omitted affirmative defense, and even after the time to amend 'of course' has passed, 'leave [to amend] shall be freely given when justice so requires.'" Kontrick v. Ryan, 540 U.S. 443, 459 (2004) (quoting Fed. R. Civ. P. 15(a)).
One of the "most important factor[s]" to consider when determining whether to grant leave to amend is "the possibility of prejudice to the opposing party." Djourabchi v. Self, 240 F.R.D. 5, 13 (D.D.C. 2006); see also Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330--31 (1971) ("[I]n deciding whether to permit such an amendment, the trial court was required to take into account any prejudice that [opposing party] would have suffered as a result."). Courts should also consider "the length of delay between the latest pleading and the amendment sought" and whether the amendment "would unduly increase discovery or delay the trial." Djourabchi, 240 F.R.D. at 13 (citing WRIGHT, MILLER & KANE, FEDERAL PRACTICE AND