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Geter v. United States Government Publishing Office

United States District Court, District of Columbia

July 31, 2017

HENRY GETER, Plaintiff,
v.
UNITED STATES GOVERNMENT PUBLISHING OFFICE, Defendant. Re Document: 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

          RUDOLPH CONTRERAS United States District Judge

         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 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

         *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;[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; 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 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.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, ...


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