The opinion of the court was delivered by: Judge Michael R. Barrett
This matter is before the Court upon Defendant's Motion to Dismiss or in Alternative, for Summary Judgment. (Doc. 4) Plaintiff Shuchen Swisshelm filed a Memorandum in Opposition. (Doc. 9) Also before the Court is Plaintiff's Motion for Leave to File an Amended Complaint (Doc. 13), and Defendant's Memorandum in Opposition thereto (Doc. 14).
In 1994, Plaintiff began working as a mail handler in the Post Office's Bulk Mail Center facility in Sharonville, Ohio. (Doc. 1, ¶ 5) Plaintiff suffers from neck and back pain and post-traumatic stress disorder. (Id. ¶ 30) Plaintiff is Chinese-American. For reasons not relevant to the Court's analysis, Plaintiff was on leave from her position from 1996 to 2000. (Id. ¶¶ 21-22) As a result of a settlement of a grievance filed by Plaintiff, Plaintiff returned to work in December of 2002. (Id. ¶ 24)
On March 18, 2004, Plaintiff was involved in an incident with her co-worker, Tom Renken. (Id. ¶ 28; Doc. 5, Ex. A) Plaintiff claims that Renken pushed a piece of equipment into her and hurt her arm. (Doc. 5, Ex. B, Vol. I Hearing Tr. at 11) Plaintiff claims that Renken told her that told her that she should not be working there because she was crazy. (Id.) Plaintiff claims that Renken said that Plaintiff did not speak English and he could not understand her. (Id.) Plaintiff claims that she went to her supervisor, Nathan Pearson, but Pearson did nothing. (Id.) Plaintiff states that when she went back to her work area another employee, Rodman Smith, told her to move because the space was "too tight" for her to work there. (Id.) Plaintiff states that she felt threatened. (Id.)
Pearson's recollection of the incident differs from that of Plaintiff. Pearson claims that Plaintiff came to him that evening and reported that Renken had said "you shouldn't be here." (Vol. I Hearing Tr. at 93) Pearson told Plaintiff that she and Renken did not have to like each other but they need to work in their areas and process the mail. (Id. at 94-95) Pearson then instructed Plaintiff to return to her area and intended to investigate when he finished what he was doing. (Id.) Pearson then heard Plaintiff "getting loud" and calling Renken "an asshole." (Id. at 34, 95) Pearson told Plaintiff that her behavior was inappropriate and to return to work. (Id.) Plaintiff refused to return to work until her union shop steward arrived. (Id. at 35-37, 95-97) Pearson then went to find the shop steward. (Id.) When Pearson returned, Plaintiff was sitting at her work station and crying. (Id.) Pearson walked Plaintiff to the union office, and Plaintiff later went home. (Id.) Pearson later took statements from the employees involved in the incident. (Id. at 100) Renken admitted that he told Plaintiff that he could not understand her, that she should not be in that area, and that she was crazy. (Doc. 5, Ex. C, Vol. II Hearing Tr. at 132-37) Renken explained that he did have difficulty in understanding Plaintiff, that he had set up the work area for another employee he was training, and it was too small of an area for all of them.
(Id.) Renken was sent to diversity training as a result of the incident. (Id. at 137)
When Plaintiff returned to work, Defendant offered Plaintiff a position in another area, which she refused. (Vol. I Hearing Tr. at 116) After a few days, Plaintiff reported that Renken was driving a forklift past her very fast, "ignor[ing her] existence. (Id. at 21, 116) Because Renken's bid assignment did not allow him to be moved, Defendant moved Plaintiff to another "loose mail" area where she does the same work. (Id. at 22-23) Plaintiff stated that she felt "a lot safer" working in the new area. (Id. at 24) There have been no other incidents with Renken since Plaintiff moved. (Id. at 23)
Plaintiff claims disability discrimination in violation of the Rehabilitation Act, 29 U.S.C. § 701, et seq.; and race and national origin discrimination in violation of Title VII, 42 U.S.C. § 2000e, et seq.
A. Motion for Leave to Amend
Plaintiff filed her Motion for Leave to Amend on March 24, 2006, after Defendant filed its Motion to Dismiss/Motion for Summary Judgment. Plaintiff seeks to add the National Postal Mail Handlers Union ("the Union") as a defendant. Plaintiff explains that she was a member of the Union during her employment, and the Union is aware of the grievances filed by Plaintiff and her factual allegations. Plaintiff states that the Union will not be prejudiced.
Defendant opposes the amendment, arguing that the amendment would be futile, and would cause it prejudice.
Federal Rule of Civil Procedure 15(a) provides: A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.
In Foman v. Davis, 371 U.S. 178, 182 (1962), the Supreme Court explained that a motion to amend generally should be granted:
In the absence of 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 ...