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Question

I filed a discrimination case pro se and I received a memorandum from the court along with an order dismissing three counts (race, gender and age) based on the defendant's argument that I did not exhaust all of my administrative rememdies. I am okay with this part. The other part of the order dismissed three other counts (hostile work environment, retaliation, and disparate treatment) to the extent that they are based on issues other than disability or FLSA violation. Q#1 Am I required to file an amendment of the charges? I just received the defendant's response to my charges and it is noted that I have not amended my complaint following the court's order and states that they are responding to the remaining allegations in the complaint and discounts any references in the allegation pertaining to the dismissed matters. Q#2 Can I still raise allegations or provide argument to the counts dismissed in part as long as it pertains to disability or FLSA violations?

Submitted: 19 days and 1 hours ago.
Category: Legal
Value: $20
Status: CLOSED
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Posted by PaulMJD 19 days and 1 hours ago.

Answer

You are liable to file an amendment on the complaint properly stating your allegations based upon the FLSA violation and removing reference to anything other than those violations. You cannot raise any issues pertaining to the age/gender/race claims in your complaint, but to the extent the actions pertain to your FLSA complaint you can still raise them again. Now, was it explained to you about exhausting administrative remedies means you had to file your complaint through the EEOC before being able to file suit? If you have not already done so and are within the 300 day time limit you can file your complaint with them still and then later seek to amend your suit again to include those charges.


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19 days ago.

Reply

My 300 days are past. I argued previously that my intake questionnaire had all the charges checked, but the EEOC only brought discrimination and retaliation under ADA, as well as my formal statement, however, the judge dismissed the race, gender and age charges. I forgot to tell you that the last item on the order dismissing the three charges the judge notes any motions for summary judgement are due January 12, 2010. The defendant's last portion of their response to the charges asks the court to dismis the complaint with prejudice and grant the defendant costs and gratn other legal and equitable relief as it deems proper. Can I consider this statement a request for summary judgement?

 

My last question is can I still amend the complaint? What is the time limit? The court issued the decision on October 15, 2009 and I was out of state and did not get the letter until October 21, 2009

Accepted Answer

The last statement is not a motion for summary judgment, it is an ordinary motion to dismiss.

You can amend the complaint (under liberal pleading rules complaints can be amended at any time with permission of the court and they have given this permission in their ruling dismissing some charges and telling you to amend others) and you have up until the court rules on the defendant's motion to dismiss with prejudice to do so, but I would not delay long in filing the amended complaint.

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Expert: PaulMJD
Pos. Feedback: 99.5 %
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Answered: 11/4/2009

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