RUDOLPH CONTRERAS, United States District Judge.
Plaintiff, Mr. Henry Geter, formerly worked at the United States Government Publishing Office (GPO). This Court has already resolved one lawsuit by Mr. Geter against the GPO concerning claims arising out of his employment. See generally Geter v. Gov't Publ'g Office (Geter I), No. 13-916, 2016 WL 3526909, at *11 (D.D.C. June 23, 2016).
The GPO moved for dismissal or, in the alternative, summary judgment, and Mr. Geter subsequently moved to amend his complaint. The GPO opposes the proposed amendment as futile. Because the Court concludes that its prior decision does not preclude Mr. Geter's current claims, Mr. Geter's proposed amendments are not futile and the Court grants leave to amend. The GPO's motion to dismiss or, in the alternative, for summary judgment, is therefore denied as moot.
The Court discusses only the background relevant to the instant motions. Mr. Geter began working at the GPO in 2002, and eventually worked as a truck driver. Redline Proposed 2d Am. Compl. ¶ 14, ECF No. 33-1; Geter I, No. 13-916, 2016 WL 3526909, at *2 (D.D.C. June 23, 2016). In 2009, Mr. Geter injured his back. Redline Proposed 2d Am. Compl. ¶ 18; Geter I at *2. According to Mr. Geter, his injury prevented him from driving, both because the act of driving would aggravate his back, and because he was prescribed narcotic pain killers that impaired his ability
After Mr. Geter's back injury, his relationship with the GPO became contentious. According to Mr. Geter, the GPO failed to comply with his medical restrictions and otherwise violated his rights. This Court has adjudicated a previous round of disputes between Mr. Geter and the GPO. See generally Geter I. The Court briefly summarizes the relevant facts and results of Geter I.
The complaint in Geter I, filed in June of 2013, included claims for race and age discrimination, intentional infliction of mental harm, creation of a retaliatory hostile work environment, failure to accommodate, and retaliatory discrimination. See generally Geter I. For its current purposes, the Court need not exhaustively describe each of these claims. The claims for failure to accommodate and retaliatory discrimination, however, merit brief discussion. Both claims were based on "the events of August 17, 2010," when Mr. Geter's supervisor ordered him to drive a truck, which allegedly violated his medical restrictions and injured him. Geter I at *3-4. Those events formed the nucleus of Mr. Geter's informal counseling and formal discrimination complaint at the GPO's equal employment opportunity office in late 2010, and eventually of his claim for failure to accommodate and retaliation in Geter I. Id. at *4.
The Court had some difficulty construing Mr. Geter's failure to accommodate claim in Geter I, but eventually characterized Mr. Geter's allegation as that "the GPO gave [Mr.] Geter a reasonable accommodation by placing him on light duty but the GPO failed to adhere to it" "based solely upon [Mr.] Geter's EEOC filing in October 2010." Id. at *7-8. After analyzing this claim, the Court concluded in Geter I that it failed "because [Mr.] Geter failed to show that he is a qualified individual under the ADA" and granted the GPO summary judgment. Id. at *1. In Geter I, this Court also rejected Mr. Geter's retaliation claim on causation grounds because "[Mr.] Geter failed to provide adequate support for his claim that his [protected activities] caused [his supervisors] to retaliate against him by requiring him to drive a GPO truck in August 2010." Id. at *13.
After the complaint in Geter I was filed in June of 2013, friction between Mr. Geter and the GPO continued. According to Mr. Geter, he was called back to work from paid administrative leave in November of 2013. Letter from Ginger Thomas to Henry Geter (Nov. 21, 2013), ECF No. 32-25 ("You are hereby directed to report for duty on November 25, 2013."); Redline Proposed 2d Am. Compl. ¶ 46. On November 25, 2013, Mr. Geter accordingly met with his supervisors at work. 2d Geter Aff. ¶ 1, ECF No. 32-9. At that meeting, Mr. Geter alleges that he was sent back home again because he was unable to drive a truck due to his limits on lifting and painkiller use, but the GPO argues that he was sent home because he did not have a valid commercial driver's license (CDL). Redline Proposed 2d Am. Compl. ¶¶ 46-48; 2d Geter Aff. ¶ 2, ECF No. 32-9;
Mr. Geter also alleges that he asked for reassignment to a different job as a reasonable accommodation at the November 25 meeting. 2d Geter Aff. ¶ 4, ECF No. 32-9; Redline Proposed 2d Am. Compl. ¶ 51; Robinson Mem. (Nov. 25, 2013), ECF No. 32-23 (summarizing the events of the November 25, 2013 meeting as including "Mr. Geter went to talk about his medical conditions and that he would like to be placed in another section and be left alone"). Some evidence drawn from GPO sources also indicates that Mr. Geter discussed a possible transfer. Letter from Gregory Robinson to Henry Geter (Dec. 16, 2013), ECF No. 32-24 (noting that in the November 25, 2013 meeting "[Mr. Geter] alleged that [he] had suffered injury to [his] back and also that [he] would like to request a transfer" but explaining that "[i]f it is in fact [Mr. Geter's] desire to seek a reasonable accommodation, [Mr. Geter] need[s] to inform me specifically what accommodation/s [he] [is] seeking. In addition, [he] must provide medical documentation detailing [his] condition ... consistent with GPO Instruction 650.16, Procedure for Processing Requests for Reasonable Accommodations"); Robinson Mem. (Nov. 25, 2013), ECF No. 32-23 (stating that, at the November 25 meeting, "Mr. Geter went to talk about his medical conditions and that he would like to be placed in another section and left alone"). In response to the letter, Mr. Geter alleges that he called his section chief on December 23, 2013 and reiterated his request for a reasonable accommodation. 2d Geter Aff. ¶ 7, ECF No. 32-9; Redline Proposed 2d Am. Compl. ¶ 52. A memorandum written by Mr. Geter's section chief recalls a phone call on December 23, but states that Mr. Geter disclaimed any request for a reasonable accommodation other than a chair. Robinson Mem. (Jan. 8, 2014), ECF No. 32-11 (stating that, during a phone call on December 23, 2013, "Mr. Geter inquired about the Request for Reasonable Accommodations. As I explained the process to him, Mr. Geter informed me that he was not going to apply for Reasonable Accommodations" except for access to a chair).
Mr. Geter was not reassigned to a different position, and after being called in and sent home again, the GPO proposed Mr. Geter's removal from his job in January of 2014. Letter from James Petty to Henry Geter (Jan. 29, 2014), ECF No. 16-3. The GPO claimed that it sought to remove Mr. Geter because he lacked a valid CDL. Redline Proposed 2d Am. Compl. ¶ 6; Letter from Robin R. Bilger to Henry Geter (Apr. 10, 2014), ECF No. 16-4. Mr. Geter's removal took effect in April of 2014. Redline Proposed 2d Am. Compl. ¶ 6; Letter from Robin R. Bilger to Henry Geter (Apr. 10, 2014), ECF No. 16-4.
Mr. Geter challenged his removal administratively, but the Merit Systems Protection Board (MSPB) affirmed the GPO in December of 2014 and reaffirmed its findings in July of 2015. Redline Proposed 2d Am. Compl. ¶¶ 7-10; Final Order of MSPB (July 15, 2015), ECF No. 16-7. Mr. Geter appealed the MSPB's decision to the EEOC in August of 2015, but the EEOC also ruled against Mr. Geter in February of 2016. Redline Proposed 2d Am. Compl. ¶¶ 11-12; Decision of EEOC (Feb. 10, 2016), ECF No. 16-8.
After the unfavorable decision by the EEOC, Mr. Geter brought the instant action. His initial complaint alleged discrimination claims under Title VII, retaliation and failure to accommodate claims under Title VII and the Rehabilitation Act, and failure to accommodate claims under the ADA. See generally Compl., ECF No. 1. Before a responsive pleading was filed, Mr. Geter amended his complaint to allege
The GPO moved for the Court to either dismiss the case or grant the GPO summary judgment. See generally Def.'s Mot. Dismiss or Alt. Mot. Summ. J. (Def.'s MTD & MSJ), ECF No. 15.
The Federal Rules of Civil Procedure permit a party to amend a pleading by leave of the court if more than 21 days have passed after a responsive pleading was filed. Fed. R. Civ. P. 15(a)(2). "The grant or denial of leave to amend is committed to the sound discretion of the district court." De Sousa v. Dep't of State, 840 F.Supp.2d 92, 113 (D.D.C. 2012) (citation omitted). However, "[t]he court should freely give leave when justice so requires," Fed. R. Civ. P. 15(a)(2), which "severely restrict[s]" the court's discretion to deny leave to amend and dismiss, Caribbean Broad. Sys., Ltd. v. Cable & Wireless PLC, 148 F.3d 1080, 1084 (D.C. Cir. 1998) (quoting Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991)). Courts have also recognized a "policy in favor of hearing cases on their merits" that weighs in favor of permitting amendments. Id.
The Court may deny leave to amend if the proposed amendment would be futile. BEG Investments, LLC v. Alberti, 85 F.Supp.3d 13, 23 (D.D.C. 2015) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) and James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996)). An amendment would be futile if the amended complaint "could not withstand a motion to dismiss." Id. "Generally, under Rule 15(a) the non-movant bears the burden of persuasion
The Court begins its analysis with Mr. Geter's motion to amend his complaint. The GPO argues that the Court should deny Mr. Geter's motion because claim preclusion renders the proposed second amended complaint futile, the amendments would radically change the scope of the complaint, and the proposed claims are futile because they would not survive a motion for summary judgment. See generally Def.'s Reply & Opp'n, ECF No. 35. The Court concludes that claim preclusion does not bar Mr. Geter's proposed second amended complaint, and that the amendments do not radically alter the scope of the complaint. The Court declines to apply the summary judgment standard in analyzing a motion to amend, and defers the substantive questions until subsequent summary judgment briefing.
The GPO argues that the claims in the proposed second amended complaint are barred by claim preclusion, or res judicata, because of this Court's decision in Geter I. See Def.'s Reply & Opp'n at 3-4 (arguing that the claims of the proposed second amended complaint are barred by claim preclusion); see also Def.'s MTD & MSJ at 8-16, ECF No. 15 (arguing that the claims of the amended complaint are barred by claim preclusion).
Claim preclusion "holds that a judgment on the merits in a prior suit bars a second suit involving identical parties or their privies based on the same cause of action." Apotex, Inc. v. FDA, 393 F.3d 210, 217 (D.C. Cir. 2004). Claim preclusion operates only when the first lawsuit "(1) involv[ed] the same claims or cause of action, (2) between the same parties or their privies, and (3) [resulted in] a final, valid judgment on the merits, (4) by a court of competent jurisdiction." Gresham v. District of Columbia, 66 F.Supp.3d 178, 187 (D.D.C. 2014) (quoting Porter v. Shah, 606 F.3d 809, 813-14 (D.C. Cir. 2010)).
The dispute here centers on the first issue — whether the instant action and Geter I involve the same claims or causes of action. "Whether two cases implicate the same cause of action turns on whether they share the same `nucleus of facts.'" Apotex, 393 F.3d at 217 (quoting Drake v. FAA, 291 F.3d 59, 66 (D.C. Cir. 2002)). To determine whether two claims share a common nucleus of facts, the court considers "whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage." Id. (quoting I.A.M. Nat'l Pension Fund v. Indus. Gear Mfg. Co., 723 F.2d 944, 949 n.5 (D.C. Cir. 1983)). The Court therefore compares the claims in the proposed second amended complaint and in Geter I.
The proposed second amended complaint includes two counts — first, a claim that the GPO violated the ADA by denying Mr. Geter a reasonable accommodation; and second, a claim that the GPO violated the ADA by terminating Mr. Geter's employment in retaliation for his protected activities of requesting a reasonable accommodation, filing EEO complaints, and filing a lawsuit. Redline Proposed 2d Am. Compl. ¶¶ 65-70, ECF No. 33-1. The GPO argues that the instant failure to accommodate claim is precluded by the ADA claims in Geter I for failure to accommodate, and that the instant claim for retaliatory termination is precluded by the ADA claims in Geter I for retaliatory discrimination.
Although both Geter I and the proposed second amended complaint involve ADA claims for failure to accommodate, the nucleus of facts in each claim is distinct. This Court concluded in Geter I that
Similarly, although Geter I and the proposed second amended complaint both involve retaliation claims, they are based on different factual occurrences. The retaliatory act at issue in Geter I was the allegation that the GPO "require[ed] [Mr. Geter] to drive a GPO truck in August 2010." Geter I, 2016 WL 3526909, at *13. In the instant action, Mr. Geter alleges that the GPO retaliated against him by terminating him in 2014. See Pl.'s Opp'n at 12, ECF No. 32 ("[T]he operative facts and claims for relief in Geter II are centered on the Agency's termination of Complainant in April 2014 in violation of the ADA.").
Based upon a comparison of the claims, the causes of action in Geter I and the proposed second amended complaint are different. Nonetheless, the GPO argues that, even if the proposed second amended complaint raises different claims, they should be barred because Mr. Geter could have raised them in Geter I. Def.'s Reply & Opp'n at 4 ("[T]he doctrine of res judicata.... applies to any claims — like Plaintiff's reasonable accommodation, discrimination, and retaliation claims — that could have been brought through the Geter I proceedings by amending that complaint."); Def.'s Reply & Opp'n at 4 ("[C]laim preclusion prevents parties from relitigating issues they raised or could have raised in a prior action on the same claim[.]" (quoting NextWave Pers. Commc'ns Inc. v. FCC, 254 F.3d 130, 143 (D.C. Cir. 2001))). However, the GPO's argument fails for two reasons.
First, even assuming, arguendo, that the new claims are part of the same transaction as the claims in Geter I, because the instant claims had not occurred when Geter I was filed, Mr. Geter was not required to raise them in Geter I. The filing date is the cut-off for claim preclusion. See Drake v. FAA, 291 F.3d 59, 66-67 (D.C. Cir. 2002) ("Res judicata does not preclude claims based on facts not yet in existence at the time of the original action.... The doctrine does not bar a litigant from doing in the present what he had no opportunity to do in the past."); Velikonja v. Ashcroft, 355 F.Supp.2d 197, 202 (D.D.C. 2005) (concluding, in answer to "whether plaintiff was required to amend her complaint" that
Second, even if there was such a requirement, the GPO has not shown that it was possible for Mr. Geter to add the proposed claims to Geter I, given the exhaustion requirements. The D.C. Circuit has clearly established that a party cannot be precluded from claims that were not available in a previous action. See also Alford v. Providence Hosp., 60 F.Supp.3d 118, 124 (D.D.C. 2014) ("[R]es judicata `does not prevent parties from later bringing claims that would have been utterly impracticable to join in an earlier suit or those that could not have been anticipated when the first suit was filed.'" (quoting Velikonja, 355 F.Supp.2d at 201)). The GPO does not dispute Mr. Geter's contention that it was required to administratively exhaust the MSPB process for appealing Mr. Geter's termination, see Pl.'s Opp'n at 13. The MSPB did not complete its review until July 15, 2015, Final Order of MSPB (July 15, 2015), ECF No. 16-7, after the GPO had already moved for summary judgment motion in Geter I, see Docket, Geter I, No. 13-cv-916 (the GPO's summary judgment motion filed July 8, 2015).
In addition to arguing that the proposed second amended complaint is futile, the GPO argues that the amendment should not be permitted because it would "change the nature of [Mr. Geter's] claim entirely." Def.'s Reply & Opp'n at 15-17, ECF No. 35. As the GPO notes, a court may deny leave to amend a complaint under Federal Rule of Civil Procedure 15(a) if "the complaint, as amended, would radically alter the scope and nature of the case and bears no more than a tangential relationship to the original action." Miss. Ass'n of Coops. v. Farmers Home Admin., 139 F.R.D. 542, 544 (D.D.C. 1991).
The GPO argues that Mr. Geter seeks to substantially change the scope of his claims, first, by altering his failure to accommodate claim to involve the failure to transfer to a desk job rather than failure to place on light duty, and second, by creating from whole cloth a retaliation claim. Def.'s Reply & Opp'n at 16-17.
As to the GPO's concerns about Mr. Geter's failure to accommodate claim, the prior version of the complaint was not limited to only failing to place Mr. Geter on light duty. None of the changes in the proposed second amended complaint involve adding a discussion of a desk job or removing a discussion of light duty, likely because both state in general that the GPO "den[ied] [Mr. Geter] reasonable accommodations for his disability." See Redline Proposed 2d Am. Compl. at 9; see also Redline Proposed 2d Am. Compl. ¶ 51 (both versions state that Mr. Geter "requested a transfer" as a reasonable accommodation). It thus appears that the GPO actually takes issue with the clarification contained in Mr. Geter's opposition to its motion to dismiss, which explains that one of the reasonable accommodations Mr. Geter alleges he was denied was transfer to a desk job. See, e.g., Pl.'s Opp'n at 26 ("Plaintiff did request reassignment to a vacant desk position."). However, the Court finds that Mr. Geter's claims regarding failure to transfer him to a different job were encompassed in the original complaint, most notably in the section entitle "Requests for Reasonable Accommodations and GPO's Response." See Redline Proposed 2d Am. Compl. ¶ 54 (stating that Mr. Geter believes "other positions that did not require a CDL were available as well").
As to the retaliation claim, contrary to the GPO's argument, it is not newly created
Finally, the GPO makes no argument that the proposed amendments will prejudice them. See Lawrence v. Lew, 156 F.Supp.3d 149, 174 (D.D.C. 2016) ("Additionally, one of the most important factor[s] to consider is the possibility of prejudice to the opposing party." (internal quotation marks and citations omitted)). In fact, despite the amount of time that has passed since this case was filed, it is still in its initial stages with no discovery having been undertaken. See Pl.'s Reply Def.'s Opp'n Pl.'s Mot. Leave File 2d Am. Compl. (Pl.'s Reply Supp. Am.) at 5, ECF No. 37. The Court therefore finds that the proposed second amended complaint is not barred as a dramatic alteration to the scope of the case.
In addition to its claim preclusion arguments, the GPO argues that allowing the proposed amendments would be futile because of substantive problems with both the failure to accommodate claim and the retaliation claim. The GPO invites the Court to apply its arguments for summary judgment to the proposed second amended complaint. See Def.'s Reply & Opp'n at 2, ECF No. 35 ("[I]f leave [to amend the complaint] is granted, this Court should enter summary judgment in GPO's favor on each of Geter's new claims."); Def.'s Reply & Opp'n at 17-18 & n.8 ("[T]his Court should not force the Parties to engage in the fruitless exercise of briefing summary judgment again on these futile claims. Given that [Mr.] Geter has already filed an entire Opposition focused on the merits of the claims he proposed in the Second Amended Complaint, it would not prejudice him in any way to not require the Parties to engage in yet another round of summary judgment briefing on those claims.").
However, the Court is hesitant to resolve this matter absent full summary judgment briefing by the parties specifically addressing the proposed second amended complaint. The D.C. Circuit has stated that, in contrast to the well-established rule that a proposed amendment may be futile at the motion to dismiss standard, "[n]o precedent, however, supports the proposition that in a case such as this, in which discovery has not occurred and no summary judgment motion is pending, summary judgment provides the appropriate standard for determining whether an amendment would be futile." Henderson v. Stanton, 172 F.3d 919 (D.C. Cir. 1998); see
The Court therefore concludes that the better course is to find as moot the GPO's motion to dismiss, or, in the alternative, for summary judgment. The parties will thus be able to more fulsomely brief the summary judgment issues in light of the second amended complaint. See Pl.'s Reply Supp. Am. at 15 ("To be fair, Defendant may seek to renew its motion to dismiss with different arguments if the Court grants Plaintiff's Motion for Leave to File a Second Amended Complaint."); cf.Cloud Found., Inc. v. Salazar, 738 F.Supp.2d 35, 42 (D.D.C. 2010). The Court notes that, in resolving the parties' arguments here concerning claim preclusion, it takes no position on the applicability of issue preclusion.
For the foregoing reasons, Defendant's Motion to Dismiss (ECF No. 15) is
Second, special caution is required before granting summary judgment for defendants in discrimination cases. See Woodruff v. Peters, 482 F.3d 521, 526 (D.C. Cir. 2007) ("[E]mployers rarely maintain records directly evidencing discrimination, an added measure of rigor, or caution, is appropriate in applying this standard to motions for summary judgment." (internal quotation marks and citations omitted)); McWay v. LaHood, 269 F.R.D. 35, 37-38 (D.D.C. 2010) ("[T]he D.C. Circuit has directed that because it is difficult for a plaintiff to establish proof of discrimination, the court should view summary-judgment motions in such cases with special caution." (citing Aka v. Wash. Hosp. Ctr., 116 F.3d 876, 879-80 (D.C. Cir. 1997), overturned on other grounds, 156 F.3d 1284 (D.C. Cir. 1998) (en banc) and Johnson v. Dig. Equip. Corp., 836 F.Supp. 14, 18 (D.D.C. 1993)). In addition, courts must exercise caution in granting summary judgment before discovery has been taken. See Americable Int'l, Inc. v. Dep't of Navy, 129 F.3d 1271, 1274 (D.C. Cir. 1997) (holding that summary judgment "ordinarily `is proper only after the plaintiff has been given adequate time for discovery'" (quoting First Chicago Int'l v. United Exch. Co., 836 F.2d 1375, 1380 (D.C. Cir. 1988))); Kemp v. Eiland, 139 F.Supp.3d 329, 336 (D.D.C. 2015) ("Summary judgment is often inappropriate when the parties have not yet engaged in discovery. The D.C. Circuit has repeatedly cautioned that `summary judgment is premature unless all parties have "had a full opportunity to conduct discovery."'" (collecting cases)).
In cases — like this one — that both involve discrimination claims and have not reached the discovery stage, courts are yet more hesitant to grant summary judgment for defendants. See Ikossi v. Dep't of Navy, 516 F.3d 1037, 1045 (D.C. Cir. 2008) ("More recently, in Chappell-Johnson v. Powell, 440 F.3d 484 (D.C. Cir. 2006), the court concluded that the district court abused its discretion by granting summary judgment in a Title VII case where the plaintiff had been afforded no discovery, citing cautioning instruction from the Supreme Court against premature grants of summary judgment...."); Hawkins v. Donovan, 269 F.R.D. 6, 7 (D.D.C. 2010) ("[T]he D.C. Circuit has cautioned that Title VII cases ordinarily cannot be resolved based on an administrative record and that plaintiffs are therefore generally entitled to take discovery that might reveal, for example, motivations that `lie at the heart of [] discrimination claims.'" (quoting Ikossi, 516 F.3d at 1045-46)); see also Williams v. Shinseki, 161 F.Supp.3d 77, 85 (D.D.C. 2011).
