United States District Court, District of Columbia
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
RUDOLPH CONTRERAS United States District Judge
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). 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.
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
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.
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.
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
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.
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.
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; 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.”).
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).
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.
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.
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
violations of the Rehabilitaion Act and Title VII instead of
ADA claims. See generally Am. Compl., ECF No. 3.
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. 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.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,  and all motions are now ripe for
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.
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, ...