                                                                   NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 18-1947
                                      ____________

                                   MICHELE EVANS,

                                                          Appellant

                                             v.

                               CITY OF PHILADELPHIA
                                    ____________

                     On Appeal from the United States District Court
                          for the Eastern District of Pennsylvania
                                 (D.C. No. 2-16-cv-01897)
                  District Judge: Honorable Nitza I. Quinones Alejandro
                                       ____________

                           Submitted February 5, 2019
            Before: HARDIMAN, SCIRICA, and RENDELL, Circuit Judges.

                                (Filed: February 13, 2019)

                                      ____________

                                        OPINION*
                                      ____________




       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
HARDIMAN, Circuit Judge.

      Michele Evans appeals the District Court’s order denying her motion to amend her

complaint to add a disparate impact discrimination claim. We will affirm.

                                            I1

      Evans brought this employment action against the City of Philadelphia after she

was terminated from the Philadelphia Police Department following a positive drug test.

As relevant here, Evans brought a claim for disparate treatment race discrimination under

Title VII of the Civil Rights Act of 1964. After the City filed a motion for summary

judgment, Evans moved to amend her complaint to add a disparate impact claim under

Title VII. The District Court denied Evans’s motion, concluding that she acted with

undue delay and proposed a futile amendment. The Court then entered summary

judgment for the City. Evans now argues that the District Court abused its discretion in

denying leave to amend on the grounds of undue delay and futility.

                                            A

      Regarding the District Court’s denial of her motion for leave to amend based on

delay, Evans argues her motion was timely because the City failed to respond to her

requests for discovery of disparate impact. She contends she was diligent in seeking



      1
         The District Court had jurisdiction under 28 U.S.C. § 1331 and we have
jurisdiction under 28 U.S.C. § 1291. We review a district court’s denial of a motion to
amend a complaint for an abuse of discretion. Cureton v. Nat’l Collegiate Athletic Ass’n,
252 F.3d 267, 272 (3d Cir. 2001).
                                            2
disparate impact evidence and had no basis to bring that claim until the City disclosed

supportive statistical evidence during a deposition taken several months after she initially

requested the information. On Evans’s view, the delay was attributable to the City’s

dilatory conduct alone.

       The District Court held otherwise, finding that Evans acted with undue delay,

offering “no credible explanation” for asserting a new theory of recovery nearly four

months after the close of discovery and nearly one month after the City moved for

summary judgment. Evans v. City of Philadelphia, 2018 WL 1525346, at *7–8 (E.D. Pa.

Mar. 28, 2018). Although Evans filed a motion to compel the City to produce the

evidence requested, she did so after the discovery deadline, making it untimely. So the

Court decided that allowing Evans to amend her complaint at that stage would unduly

prejudice the City.

       We agree with the District Court’s analysis. The Court had discretion to deny the

motion to amend if the record indicated that Evans had acted with undue delay. See

Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107, 116 (3d Cir. 2003). While delay alone

is insufficient to justify denying leave to amend, “at some point, the delay will become

‘undue,’ placing an unwarranted burden on the court, or will become ‘prejudicial,’

placing an unfair burden on the opposing party.” Adams v. Gould Inc., 739 F.2d 858, 868

(3d Cir. 1984). Evans’s attempt to blame the City alone for the delay, mischaracterizes

the discovery process in this case. The City did not produce disparate impact evidence for

                                             3
good reason: prior to her motion for leave to amend, Evans pursued only claims of

individual disparate treatment. The statistical evidence Evans cites was disclosed in a

deposition conducted after the parties voluntarily elected to continue with discovery even

though the deadline had passed and the District Court had denied Evans’s motion to

compel. If Evans wanted to pursue disparate impact evidence, she should have done so

before the discovery period ended. Thus, the District Court did not abuse its discretion in

concluding that Evans bore some responsibility for asserting a new theory of liability so

late and her delay was undue.

                                              B

       Bolstering its denial based on undue delay, the District Court also found that

Evans’s proposed amendment to add a disparate impact race discrimination claim would

have been futile. The Court determined that Evans could not establish a prima facie case

under this theory of liability, which requires the plaintiff to show “that the facially neutral

employment practice [that is challenged] had a significantly discriminatory impact.”

Massarsky v. Gen. Motors Corp., 706 F.2d 111, 120 (3d Cir. 1983) (quoting Connecticut

v. Teal, 457 U.S. 440, 446 (1982)). Here again, we agree with the District Court.

       Evans challenges the City’s policy of not considering reconfirmation test results

when making termination decisions for employees who test positive for drug use. She

argues that this facially neutral practice has a statistically discriminatory impact because

the racial composition of officers terminated after initially testing positive for drugs and

                                               4
subsequently requesting a reconfirmation test (80% black and 20% white) differs from

the racial makeup of the police department as a whole (33% black and 56% white).

          The District Court found that these statistics do not establish a prima facie case of

disparate impact discrimination because Evans “misidentifies the relevant comparator

pool.” Evans, 2018 WL 1525346, at *8. The Court reasoned that because the policy only

affects officers who ask for the reconfirmation test, those who requested the second test

(rather than the entire police department) should comprise the relevant statistical pool.

And because all six officers who requested reconfirmation during the relevant period

were terminated, there is no statistical disparity for termination outcomes between white

and black officers who requested a second test, and, consequently, no prima facie case of

disparate impact discrimination. Thus, the Court held that her amendment would be

futile.

          A district court has discretion to deny a motion to amend if the amendment would

be futile. Fraser, 352 F.3d at 116. “‘Futility’ means that the complaint, as amended,

would fail to state a claim upon which relief could be granted,” and is analyzed under the

same legal sufficiency standard as a Rule 12(b)(6) motion. Shane v. Fauver, 213 F.3d

113, 115 (3d Cir. 2000). Here, Evans failed to establish a prima facie case for disparate

impact discrimination: she has not shown that the challenged policy had a significant

discriminatory impact because all of the officers affected by it (both black and white)




                                                5
were terminated. Thus, the District Court did not abuse its discretion when it denied

Evans’s motion because the proposed amendment was also futile.

                                       *       *       *

       Because the District Court’s denial based on its findings of undue delay and

futility was within its discretion, we will affirm its order.




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