to participate; (5) criticized her for questioning supervisors in front of other employees even though male workers could question supervisors; (6) did not terminate male workers with worse driving records or less seniority; (7) issued a positive job evaluation and merit pay raise prior to her injury; (8) had only male individuals contribute to the decision to discharge her; and (9) subjected her to inappropriate comments concerning her appearance and gender. Pl. Mem. at 22-31. Defendant argues that this proof is insufficient. Moreover, defendant contends that because Bascom both hired plaintiff and terminated her within a relatively short period of time, an inference exists that his motive was not discriminatory. Def. Mem. at 16-22.
Quandt's arguments are unpersuasive. On this motion for summary judgment, I am not to resolve issues of fact. Instead I must determine whether the factual circumstances allow a "rational finder of fact to infer a discriminatory motive." Chambers, 43 F.3d at 38. Plaintiffs factual allegations could raise a rational inference of discrimination and thus are sufficient to defeat defendant's motion for summary judgment.
III. Plaintiffs Cross-Motion For Partial Summary Judgment
Plaintiff cross-moved for partial summary judgment on the issue of liability, arguing that "no reasonable finder of fact could conclude that it was anything other than discrimination on the basis of gender that led Quandt's to fire the plaintiff." Pl. Mem. at 19. I disagree. A reasonable jury could determine that defendant terminated plaintiff because its business had slowed, Quandt's no longer needed her services, plaintiff was not a good performer, or a combination of these three reasons. Plaintiffs motion for summary judgment therefore is denied.
IV. Pendent State Claims
In her original complaint, plaintiff alleged pendent state law claims for unlawful retaliation for filing a Workers' Compensation Claim and intentional infliction of emotional distress. As reflected by the omission from her amended complaint, plaintiff voluntarily withdrew these claims. Defendant's objections are moot.
V. Defendant's Appeal From the Magistrate's Order
Also before me is defendant's appeal from Magistrate Judge Di Bianco's March 11, 1996, Order granting Vandewalker leave to amend her complaint and add a pendent state law claim pursuant to New York's Human Rights Law, N.Y. Exec. Law § 290 (McKinney 1985). Defendant argues that amending the complaint is futile and will cause undue delay and prejudice.
Rule 15(a) of the Federal Rules of Civil Procedure provides that a party may amend its pleadings once as a matter of course prior to service of a responsive pleading or within twenty days of serving its pleading if no responsive pleading is required. Fed. R. Civ. P. 15(a). Otherwise, a party only may amend its pleadings with written consent of the adverse party or by leave of court, which "shall be freely given when justice so requires." Id. Whether to permit an amendment is committed to the discretion of the court. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330, 28 L. Ed. 2d 77, 91 S. Ct. 795 (1971). However, denying leave to amend is an abuse of discretion if the denial is without a justifying reason. Evans v. Syracuse City Sch. Dist., 704 F.2d 44, 46 (2d Cir.1983) (quotation and citation omitted). In deciding whether to permit an amendment, the court may consider factors such as undue delay in filing, lack of notice to the opposing party, bad faith by the moving party, undue prejudice to the opposing party, failure to cure deficiencies by previous amendments, and futility. Id.
Vandewalker included the pendent Human Rights Law claim in the introductory paragraph of her original complaint but failed to mention the claim again in the body of the pleading. In his order finding that the omission was inadvertent Magistrate Judge Di Bianco held that,
plaintiff is not guilty of undue delay or bad faith in making this request to amend the complaint. Nor does the court find that permission to amend would unduly prejudice the defendant. It appears that the only possible prejudice to the defendant would be a larger damages award if the plaintiff obtains a verdict awarding damages which exceed Title VII's statutory cap for combined compensatory and punitive damages.
Order, Dkt. No. 17, at 3.
A district court can reverse or modify a magistrate judge's order on a non-dispositive matter only if it is "clearly erroneous or contrary to the law." 28 U.S.C. § 636(b)(1)(A) (1988). See also Fed. R. Civ. P. 72(a); L. R. 72.1(b). Orders granting leave to amend are non-dispositive, as they do not remove claims or defenses of a party. See Fed. R. Civ. P. 72. Therefore, I review Magistrate Judge Di Bianco's order under the clearly erroneous or contrary to law standard. See, e.g., Aries Ventures Ltd. v. Axa Fin. S.A., 696 F. Supp. 965, 966 (S.D.N.Y. 1988). The Supreme Court has recognized that "[a] finding is 'clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 92 L. Ed. 746, 68 S. Ct. 525 (1948).
The claim that plaintiff wishes to either clarify or add in her amended complaint is New York's equivalent to a Title VII claim for discrimination. Defendant agrees with this view, stating that "plaintiffs pendent state law claim [is] entirely duplicative of her Title VII claim." Def. Mem., Dkt. No. 24, at 7. Therefore, the additional claim is neither burdensome nor prejudicial to Quandt's. Defendant showed no bad faith on the part of Vandewalker, who sought to correct her oversight as soon as she became aware of the problem. See Dkt. No. 16. Because the magistrate judge's order is not clearly erroneous, defendant's motion to reconsider is denied.
For the forgoing reasons, it is
ORDERED, that defendant's motion for summary judgment is DENIED, and it is further
ORDERED, that plaintiffs cross-motion for summary judgment is DENIED, and it is further
ORDERED, that plaintiffs claims based on unlawful retaliation for filing a Workers' Compensation Claim and intentional infliction of emotional distress are DISMISSED, and it is further
ORDERED, that defendant's appeal from Magistrate Judge Di Bianco's March 11, 1996, Order permitting plaintiff to amend her complaint is DENIED.
IT IS SO ORDERED.
Dated: July 26, 1996
Syracuse, New York
ROSEMARY S. POOLER
United States District Judge