THORNBERRY, Circuit Judge:
Carol Daves, a white female, sued Payless Cashways, Inc., for alleged violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. She appeals from the district court's finding that she failed to establish a prima facie case of sex discrimination in Payless' failure to hire her as a salesperson at their store in Tyler, Texas. We affirm.
Appellant objects first to the trial court's denial of leave to amend her original complaint. This contention constitutes the heart of this appeal, for the trial court's refusal effectively precluded appellant from proving a prima facie case for relief under Title VII. We cannot say, however, that the trial court's denial amounts to an abuse of discretion.
Rule 15(a), Fed.R.Civ.Proc., mandates that leave to amend "be freely given when justice so requires." Determining when justice requires permission to amend rests within the discretion of the trial court. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330, 91 S.Ct. 795, 802, 28 L.Ed.2d 77 (1971); Nilsen v. City of Moss Point, Mississippi, 621 F.2d 117, 122 (5th Cir. 1980). In exercising its discretion, the trial court may consider, among other factors, undue delay, dilatory motive on the part of the movant, and undue prejudice to the opposing party by virtue of allowing the amendment. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); Addington v. Farmer's Elevator Mutual Insurance Co., 650 F.2d 663 (5th Cir. 1981).
Viewing appellant's request as trying to change the cause of action after the case had been set for trial, the trial court denied her motion to amend as untimely. The original complaint alleged that plaintiff was denied employment as a salesperson in the plumbing and electrical department. Her amended complaint stated that she was denied employment by Payless in the sales/receiving department. The latter division of Payless encompasses a much broader range of potential job openings and, therefore, substantially alters what must be proved to recover under Title VII. The amendment thus represents more than an "alternative" theory for recovery. See Foman v. Davis, supra, 371 U.S. at 182, 83 S.Ct. at 230.
Appellant did not move to alter the grounds alleged to support her recovery until the day of trial, February 6, 1980, nineteen months after this litigation had commenced and thirty-three months after plaintiff had filed an EEOC charge alleging sex-based discrimination in hiring practices. Her situation closely resembles that of the plaintiff in Addington, supra, where we found that the facts warranted the trial court's refusal to allow amendment. In both cases the motion to amend came more than a year after institution of the suit, the parties had terminated discovery, and the delay passed unexplained. 650 F.2d at 667.
Though she was unable to amend, appellant contends nevertheless that she established a prima facie case as set out in her original complaint. To meet her prima facie burden as an individual plaintiff, appellant must show (1) that she belongs to a group protected by Title VII, (2) that she applied for a job for which applicants were being sought, (3) that she was rejected, and (4) that after she was rejected, the employer continued to seek applicants with similar qualifications. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); Walker v. Jim Dandy Co., 638 F.2d 1330, 1333 (5th Cir. 1981).
Appellant submitted her application to Payless for a fulltime sales position in response to a sign in the window. The sign did not describe the type of work available, but the manager for Payless testified that he was seeking applicants specifically for work in the yard.
Appellant has tried to convince us that the line of progression for promotion — from yard to receiving to sales — is itself discriminatory because it prevents her employment. This argument is unpersuasive. Though statistical data in the record
Our research discloses no cases in this Circuit wherein an outsider disputes the legality of a promotion system because it precludes her initial employment at an upper level in the company. The Ninth Circuit addressed this circumstance in Gates v. Georgia-Pacific Corp., 492 F.2d 292 (9th Cir. 1974), and concluded that the plaintiff had established a prima facie case. Its finding was based on two significant facts, which led the court to believe that the defendant had abandoned its promotion policy. First, the defendant in Gates advertised in daily newspapers to fill the specific vacancies for which the plaintiff applied. Second, the defendant filled one of the four advertised openings by hiring, rather than by transfer. Id. at 296. The court also noted that the plaintiff was clearly more qualified than the man who was hired. None of these facts are proven here.
Appellant has fallen short of meeting her prima facie burden for a very simple, and fundamental, reason. She failed in the first instance to place herself in a position where Payless' promotion policy would have considered her available for the job she sought. See Wilkins v. University of Houston, 654 F.2d 388, 407-10 (5th Cir. 1981). Thus, we affirm the judgment of the district court.