                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

HENRY GETER,                                      :
                                                  :
       Plaintiff,                                 :     Civil Action No.:      16-0482 (RC)
                                                  :
       v.                                         :     Re Document Nos.:      15, 16, 33
                                                  :
UNITED STATES GOVERNMENT                          :
PUBLISHING OFFICE,                                :
                                                  :
       Defendant.                                 :

                                 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




                                                 5
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).


                                                 9
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.


                                                 11
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,


       8
          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.


                                                  12
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.”).


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