Collins' misinterpretations, the parties present at the First Meeting became convinced that Mohamed was lying and that he had indeed stolen the money without intent to return it. In the meantime, Mohamed asserts, he, unable to hear exchanges among the others present, was unaware of the source of the confusion.
The signatures of three people were necessary to approve the termination of Mohamed's employment: Pietzak, Contreras, and Jurgen Giesbert ("Giesbert"), the General Manager of the Hotel. Of the three, only Contreras was present at the First Meeting.
Prior to approving the termination, at some time between October 1 and October 4, 1993, Pietzak spoke with Woodies and Dominguez, both of whom had been present at the First Meeting. Woodies and Dominguez both told Pietzak that Mohamed had stolen money, and both recommended termination. In addition, Pietzak spoke with Mark Sanders, the head of the human resources department, who had conducted similar conversations with Woodies and Dominguez. Pietzak presumed that the information with which he had been provided was accurate and conducted no further review of the matter.
Giesbert, as general manager of the Hotel, was in the habit of approving recommendations to terminate employment without investigating further. His approval was, in effect, pro forma. In making a decision regarding Mohamed's termination, Giesbert relied on the recommendation of Pietzak and information provided by Contreras. Giesbert was unaware of the details of Mohamed's deafness, Mohamed's work habits, or the circumstances regarding the interpretation at the First Meeting.
In formulating her decision to fire Mohamed, Contreras relied on the interpretation at the First Meeting, including additional information supplied to her by Collins and Dominguez. She was under the false impression that Mohamed was capable of speaking with others and as to the circumstances of his work routine.
On Monday, October 4, 1993, a meeting was held at the Hotel (the "Second Meeting"). Present were Mohamed, Contreras, Chuck Duffner, Woodies' supervisor from the engineering department, and Heffernan, a professional interpreter. At the Second Meeting, after another discussion of the events of October 1, Mohamed was given another opportunity to vindicate himself. After listening to his explanation, which Mohamed contends was the same, consistent one described above, Contreras informed Mohamed that his employment was terminated. At the Second Meeting Contreras accused Mohamed of lying at the First Meeting. As grounds for the termination, Contreras told Mohamed that he was being fired because he was supposed to give the money he had found to a guard and to contact the personnel office or the human resources department, rather than placing the money in his locker. Mohamed had initialled a statement at the time of his employ stating, "I will not place valuable belongings in the locker, as I understand that my employer cannot accept responsibility for loss of such items."
On October 4, Giesbert, Pietzak, and Contreras signed a form terminating Mohamed's employment. Heffernan signed the form as well to indicate her presence at the Second Meeting. At that point, Mohamed's termination became effective.
The Motion to Amend the Complaint is Granted
Mohamed seeks to amend his complaint to include a claim under the New York City Civil Rights Law, a claim for intentional and reckless infliction of emotional distress, and a request for attorney's fees. In addition, he seeks to add Xiomara Amaya Mohamed, his wife, as a plaintiff in this action, claiming that she possesses a claim for loss of consortium. Finally, Mohamed's proposed amended complaint also abandons his original separate claims for alleged pain and suffering and for punitive damages.
Federal Rule of Civil Procedure 15(a) provides that leave to amend a complaint "shall be freely given when justice so requires." The decision to grant or deny the filing of an amended pleading, however, is within the sound discretion of a trial judge. Zenith Radio Corporation v. Hazeltine Research, Inc., 401 U.S. 321, 28 L. Ed. 2d 77, 91 S. Ct. 795 (1971); Katz v. Morgenthau, 892 F.2d 20, 22 (2d Cir. 1989). The Supreme Court has interpreted Rule 15 to permit such amendments only when (1) the party seeking the amendment has not unduly delayed, (2) that party is not acting in bad faith or with a dilatory motive, (3) the opposing party will not be unduly prejudiced by the amendment, and (4) the amendment is not futile. Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962); Evans v. Syracuse City School Dist., 704 F.2d 44, 46 (2d Cir. 1983); see also Ansam Assocs., Inc. v. Cola Petroleum, Ltd., 760 F.2d 442, 446 (2d Cir. 1985) (trial court required to take into account any prejudice that might result to party opposing the amendment) (citing Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330-31, 28 L. Ed. 2d 77, 91 S. Ct. 795 (1971)).
Marriott asserts that it will be prejudiced by the amendment, compelling additional time and wasteful discovery. It argues that two of the claims Mohamed seeks to add -- intentional infliction of emotional distress and loss of consortium -- will require potentially extensive additional discovery of issues not faced by the parties during the fifteen prior months of litigation. It is true that where a party, "in seeking to add myriad new claims, advances no reason for his extended and undue delay, other than ignorance of the law; such a failure has been held an insufficient basis for leave to amend." Goss v. Revlon, Inc., 548 F.2d 405, 407 (2d Cir. 1976) (citations omitted). Marriott contends that the motion to amend comes before the Court in a posture of extreme delay, and that the new claims are asserted merely to convince this Court of a need for further delay and discovery.
The proposed complaint, however, represents Mohamed's first attempt to amend his Complaint, Although he waited for over a year before making this motion, Marriott did not make any motion to dismiss or for summary judgement in the meantime. Mohamed therefore has not unduly delayed or prejudiced Marriott by bringing this motion. See Oliver Schools, Inc. v. Foley, 930 F.2d 248, 253 (2d Cir. 1991).
Marriott contends that the proposed complaint would be futile in light of the prior proceedings. An amendment is considered futile if the proposed pleading fails to state a claim or would be subject to a motion to dismiss on some other basis. See, e.g., S.S. Silberblatt, Inc. v. East Harlem Pilot Block, 608 F.2d 28, 42 (2d Cir. 1979); Freeman v. Marine Midland Bank-New York, 494 F.2d 1334, 1338 (2d Cir. 1974). The new claims interposed by Mohamed state an appropriate cause of action.
Mohamed's amendments come, moreover, at the end of discovery, when it can be well expected to interpose new claims. In Zenith, for instance, the movant sought to amend its reply a year after discovery had been closed, and after the trial judge had entered preliminary findings of facts and conclusions of law favoring the non-movant. Zenith, 401 U.S. at 323-25. Given this timing, and in the absence of evidence of bad faith, the motion to amend the complaint will be granted.
Marriott has requested that its motion for summary judgment be extended immediately to the new causes of action in the event that the requested amendment is permitted. All of Marriott's claims are, therefore, addressed herein.
Standard for Summary Judgment
The instant motion is brought pursuant to Rule 56. The Rule 56 motion for summary judgment is "an integral part" of the Federal Rules of Civil Procedure and facilitates the overall purpose of the Rules as stated in Fed. R. Civ. P. 1: namely, "to secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 327, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). A motion for summary judgment may be granted only when there is no genuine issue of material fact remaining for trial and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Silver v. City Univ., 947 F.2d 1021, 1022 (2d Cir. 1991). If, when "viewing the evidence produced in the light most favorable to the nonmovant . . . a rational trier could not find for the nonmovant, then there is no genuine issue of material fact and entry of summary judgment is appropriate." Binder v. Long Island Lighting Co., 933 F.2d 187, 191 (2d Cir. 1991).
The Motion to Dismiss the Claim Under the Americans With Disabilities Act is Denied
The Americans with Disabilities Act states that:
No covered entity shall discriminate against a qualified individual with a disability because of the disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.