GETER v. UNITED STATES GOVERNMENT PUBLISHING OFFICE

Filing 39

MEMORANDUM OPINION granting 33 Plaintiff's motion for leave to file a second amended complaint, denying 15 Defendant's motion to dismiss as moot, and denying 16 Defendant's motion for summary judgment as moot. See document for details. Signed by Judge Rudolph Contreras on 7/31/2017. (lcrc1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
HENRY GETER,

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Plaintiff,
v.
UNITED STATES GOVERNMENT
PUBLISHING OFFICE,
Defendant.

Civil Action No.:

16-0482 (RC)

Re Document Nos.:

15, 16, 33

MEMORANDUM OPINION
DENYING AS MOOT DEFENDANT’S MOTION TO DISMISS;
DENYING AS MOOT DEFENDANT’S MOTION FOR SUMMARY JUDGMENT;
GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT
I. INTRODUCTION
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).1 In the instant action,
Mr. Geter now claims that the GPO failed to accommodate his disability and discriminated
against him by failing to provide him with appropriate work, and retaliated against him for
engaging in protected activities by firing him.
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

1

This Court’s Memorandum Opinion in Geter I is also available in the record for this
matter at ECF No. 32-6.

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.

II. BACKGROUND
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 to drive. See, e.g., Redline Proposed 2d Am. Compl. ¶¶ 19, 24–26, 27, 47.
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

2

*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.

3

¶ 2, ECF No. 32-9;2 Letter from Ginger Thomas to Henry Geter (Nov. 25, 2013), ECF No. 32-27
(“While you have reported for work as instructed, you have indicated . . .that you do not have a
valid [CDL]. . . . As a result, we are sending you home until you are able to report for work,
provide a valid [CDL], and perform all of the duties and responsibilities of your position.”).
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;

2

The same affidavit appears as ECF No. 32-9 and ECF No. 32-26. The Court cites
exclusively to ECF No. 32-9.
4

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

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filed, Mr. Geter amended his complaint to allege violations of the Rehabilitaion Act and Title
VII instead of ADA claims. See generally Am. Compl., ECF No. 3.
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. 15.3 In part, the GPO argued that dismissal was appropriate because the GPO is a “legislative
instrumentality of Congress . . . not subject to the Rehab[ilitation] Act” and Mr. Geter therefore
should have brought ADA claims instead. Def.’s MTD & MSJ at 1. Mr. Geter opposed the
GPO’s motion, see Pl.’s Mem. P. & A. Supp. Pl.’s Opp’n Def.’s Mot. (Pl.’s Opp’n), ECF No. 32,
and also moved for leave to file a second amended complaint, see Mot. Leave File 2d Am.
Compl. (Pl.’s Mot. Amend), ECF No. 33. Mr. Geter explained that he sought leave to amend
because “Plaintiff’s prior counsel mistakenly substituted [ADA claims] with the Rehabilitation
Act.” Pl.’s Mot. Amend at 3; see also Pl.’s Opp’n at 15 (“For some strange reason, Plaintiff’s
predecessor counsel substituted Plaintiff’s ADA claims for claims under the Rehabilitation Act
. . .”). The proposed second amended complaint is substantially the same as the original
complaint, but returns to pleading ADA claims instead of Rehabilitation Act claims, and clarifies
the protected conduct that Mr. Geter alleges led to the supposed retaliation. See generally
Redline Proposed 2d Am. Compl. The proposed second amended complaint also removes
references to Title VII. See generally Redline Proposed 2d Am. Compl. The GPO opposed Mr.

3

The same document docketed at ECF No. 15 as Defendant’s motion to dismiss is
docketed at ECF No. 16 as Defendant’s motion for summary judgment. The Court cites
exclusively to ECF No. 15.

6

Geter’s motion for leave to amend, Def.’s Reply Supp. MTD & MSJ and Opp’n Pl.’s Mot.
Amend (Def.’s Reply & Opp’n), ECF No. 35,4 and all motions are now ripe for decision.

III. LEGAL STANDARD
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 (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 that a
motion to amend should be denied.” Encyclopaedia Britannica, Inc. v. Dickstein Shapiro, LLP,
No. 10-0454, 2012 WL 8466139, at *11 (D.D.C. Feb. 2, 2012) (citing Gudavich v. District of

4

The same document docketed at ECF No. 35 as Defendant’s reply supporting its motion
to dismiss or for summary judgment is also docketed at ECF No. 36 as Defendant’s opposition to
Plaintiff’s motion for leave to file a second amended complaint. The Court cites exclusively to
ECF No. 35.
7

Columbia, 22 F. App’x 17, 18 (D.C. Cir. 2001) and Dove v. Wash. Metro. Area Transit Auth.,
221 F.R.D. 246, 247 (D.D.C. 2004)).

IV. DISCUSSION
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.5 Because the Court grants Mr. Geter’s

5

The Court questions if immediate summary judgment briefing would be fruitful for two
reasons. First, the record contains contradictory evidence on several important points, which may
require a credibility judgment from the Court. For example, it is disputed if Mr. Geter requested
a transfer to a different job as a reasonable accommodation. Compare, e.g., 2d Geter Aff. ¶ 7,
ECF No. 32-9 (“On December 23, 2013, I made a second request for a reasonable
accommodation . . . . I told Mr. Robinson that I wanted to be transferred to a desk position
. . . .”), with 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 to request a chair).
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
8

motion to file a second amended complaint, the GPO’s motion to dismiss or, in the alternative,
for summary judgment is moot.
A. Claim Preclusion Does Not Render the Proposed Second Amended Complaint Futile
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

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).
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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.6 The Court addresses each in turn.
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

6

Geter I also included claims for race and age discrimination, intentional infliction of
mental harm, and a retaliatory hostile work environment, Geter I, No. 13-916, 2016 WL 3526909,
at *1 (D.D.C. June 23, 2016), that the GPO does not argue affect the preclusion analysis here.
10

Geter I that “[b]ecause he can only raise administratively exhausted claims, . . .the ADA
discrimination claim ‘is based solely upon [Mr.] Geter’s EEOC filing in October 2010.’” Geter
I, No. 13-916, 2016 WL 3526909, at *7 (D.D.C. June 23, 2016) (emphasis added) (citation omitted).
That EEOC filing complained about an event in August of 2010 when Mr. Geter’s supervisors
ordered him to drive. EEO Counseling Report, Geter I, No. 13-cv-916, ECF No. 35-27. In
contrast, the proposed second amended complaint alleges that the GPO failed to accommodate
Mr. Geter by failing to reassign him.
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.”).7
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

7

The GPO appears to be focused on similarities in the cause of action rather than the
facts. For example, the GPO objects because both Geter I and the proposed second amended
complaint include an ADA claim for failure to accommodate. See, e.g., Def.’s Reply & Opp’n at
3, ECF No. 35 (“In Geter I, Geter claimed that the GPO . . . . fail[ed] to provide a reasonable
accommodation for his disability . . . . [That] claim[], of course, undergird[s] the entirety of this
action as well.”). However, an identity of the causes of action occurs “when the cases are based
on the same nucleus of facts . . . , not the legal theory on which a litigant relies.” Capitol Hill
Grp. v. Pillsbury, Winthrop, Shaw, Pittman, LLC, 569 F.3d 485, 490 (D.C. Cir. 2009) (emphasis
added) (internal quotation marks and citations omitted). Claim preclusion does not bar a later
claim based on a new factual occurrence simply because the same general cause of action would
apply. This rule avoids creating a moral hazard by permitting a successful defendant to freely
violate the plaintiff’s rights in the future.
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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 “plaintiff is not barred by the doctrine of res judicata
from litigating [events that occurred after her first suit was filed]”);8 see also Apotex, 393 F.3d at
218 (“Res judicata does not bar parties from bringing claims based on material facts that were
not in existence when they brought the original suit.”); 18 C. Wright, A. Miller, & E. Cooper,

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Indeed, the conclusions of Velikonja are quite apposite here. Velikonja involved
employment discrimination claims, and the plaintiff sought to file a second action adding
additional retaliatory and discriminatory acts that occurred after the filing date of the first action.
Velikonja v. Ashcroft, 355 F. Supp. 2d 197, 199–200 (D.D.C. 2005). The court concluded, after
an extensive survey of applicable authority, that the plaintiff was not required to amend her
initial complaint to add claims based on occurrences after the filing date in order to avoid claim
preclusion. Id. at 200–04.
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Federal Practice and Procedure § 4406, p. 158–59 (3d ed. 2016) (“There is no preclusion of a
claim that was not mature at the time the first action was filed.”). Here, the Geter I complaint
was filed in June of 2013, but Mr. Geter alleges that he requested reassignment in November of
2013 and was terminated in 2014. See generally ECF Docket 13-cv-916. The GPO offers no
authority for its suggestion that Mr. Geter should have been required to amend the complaint in
Geter I to add the later-arising claims, and such a conclusion is contrary to the holdings of other
courts in this jurisdiction. See Def.’s Reply & Opp’n at 4; see also Velikonja, 355 F. Supp. 2d at
202 (“The law in this Circuit does not require constant amendments each time plaintiff learns of
a new action that could be claimed to be retaliatory or discriminatory.”).
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).9 While Geter I was

9

In addition, Mr. Geter subsequently appealed the MSPB’s decision to the EEOC, which did
not reach a determination until February of 2016. Decision of EEOC (Feb. 10, 2016), ECF No. 16-8.
13

ongoing, the parties actually sought to stay the action pending the MSPB’s decision concerning
Mr. Geter’s 2014 removal (the source of some of the instant claims), but their motion was
denied. Joint Motion to Stay, Geter I, No. 13-cv-916, ECF No. 27;10 see also Minute Order of
March 3, 2015, Geter I, No. 13-cv-916.11 Accordingly, the GPO has failed to show that Mr.
Geter could have brought the claims proposed in the second amended complaint in Geter I.
Claim preclusion therefore does not bar Mr. Geter’s second amended complaint and the proposed
amendment would not be futile on preclusion grounds.
B. The Proposed Second Amended Complaint Would Not Radically Alter the Scope of the Case
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 16–17.12 Neither change is as dramatic as the GPO suggests.

10

The joint motion to stay is also available in the docket for this matter as ECF No. 32-18.

11

The minute order is also available in the docket for this matter as ECF No. 32-15.

12

The proposed amended complaint also substitutes ADA claims for claims under Title
VII and the Rehabilitation Act. See generally Redline Proposed 2d Am. Compl., ECF No. 33-1.
The GPO does not argue that this change presents too substantial a shift in focus, perhaps
14

Although the proposed second amended complaint would alter the legal theories, the facts
involved are essentially the same as the previous complaint. See Redline Proposed 2d Am.
Compl. at 9, ECF No. 33-1 (retaining the fact section while changing both counts to reflect ADA
claims). Mr. Geter does not seek to change the parties to the action or significantly expand the
facts at issue.
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”).13

because—as Mr. Geter notes—the legal standards used to analyze claims under the
Rehabilitation Act and the ADA are the same. Pl.’s Reply Supp. Am. at 3, ECF No. 37.
13

It is unclear if either the current or proposed second amended complaint also asserts a
claim based on the GPO’s alleged failure to place Mr. Geter in a light duty position. See Redline
Proposed 2d Am. Compl. ¶ 54, ECF No. 33-1 (stating that Mr. Geter “requested a reasonable
15

As to the retaliation claim, contrary to the GPO’s argument, it is not newly created out of
“whole cloth” in the proposed second amended complaint. The current complaint states under
“Nature of the Case” that “Plaintiff is also alleging discrimination based retaliation for initiating
an EEO complaint against the agency . . . .” Redline Proposed 2d Am. Compl. at 1. Furthermore,
the second count of the current complaint stated that the GPO violated Mr. Geter’s rights by
“terminating Plaintiff’s employment.” Am. Compl. ¶ 69, ECF No. 3. The Court does not find,
therefore, that Mr. Geter’s clarification of the protected activities on which his retaliation claim
is based rises to the level of a radical alteration to the scope of the complaint.
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.

accommodation to a light duty position”). However, the Court is uncertain if such a claim could
survive the issue-preclusive effect of this Court’s prior decision in Geter I. See Def.’s Reply &
Opp’n at 8, 18, ECF No. 35 (“Where [Mr.] Geter claims that GPO failed to provide the
accommodation of placement onto light duty, this claim is directly foreclosed by Geter I.”);
Geter I at *8 (“[T]he most logical reading of plaintiff’s factual allegations is that the GPO gave
[Mr]. Geter a reasonable accommodation by placing him on light duty but the GPO failed to
adhere to it.”). However, because the parties have not fully briefed the issue preclusion issue the
Court does not address it.
16

C. The Court Does Not Address the GPO’s Arguments for Summary Judgment
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 also
Hamilton v. Geithner, 616 F. Supp. 2d 49, 62 (D.D.C. 2009) (“The defendant’s exhaustion
argument would therefore be premature at the motion to dismiss stage, which, in turn, means that
his futility argument must be rejected.”). Here, Mr. Geter asserts that “there has been no
discovery.” Pl.’s Reply Supp. Am. at 5, ECF No. 37. Furthermore, the GPO’s dispositive motion

17

concerning Mr. Geter’s prior complaint was styled as a motion to dismiss (although it contained
arguments that, in the alternative, summary judgment should be granted). See generally Def.’s
MTD & MSJ, ECF No. 15.
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.14 Nor does the Court take a position now on
whether a summary judgment motion is appropriate prior to any discovery having been taken
given the conflicting testimony on important issues.

V. CONCLUSION
For the foregoing reasons, Defendant’s Motion to Dismiss (ECF No. 15) is DENIED AS
MOOT, Defendant’s Motion for Summary Judgment (ECF No. 16) is DENIED AS MOOT,
and Plaintiff’s Motion for Leave to File a Second Amended Complaint (ECF No. 33) is
GRANTED. An order consistent with this Memorandum Opinion is separately and
contemporaneously issued.
Dated: July 31, 2017

RUDOLPH CONTRERAS
United States District Judge

14

See supra note 12; see also, e.g., Geter I at *11 (“[T]he record is devoid of any request
by [Mr.] Geter for reassignment to another position.”).
18