United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 29, 1999 Decided May 7, 1999
No. 98-5019
Sepedra Harrison,
Appellant
v.
Robert E. Rubin, Secretary of the Treasury,
United States Department of the Treasury,
Appellee
Appeal from the United States District
Court for the District of Columbia
(No. 95cv02256)
Gregory L. Lattimer argued the cause and filed the briefs
for appellant.
Eric M. Jaffe, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Wilma A. Lewis,
U.S. Attorney, Mark E. Nagle and R. Craig Lawrence,
Assistant U.S. Attorneys.
Before: Edwards, Chief Judge, Ginsburg and Tatel,
Circuit Judges.
Opinion for the Court filed by Circuit Judge Tatel.
Tatel, Circuit Judge: Appealing the dismissal of her em-
ployment discrimination case, appellant argues that the dis-
trict court abused its discretion in denying her motion to
amend her complaint to correct an erroneous statutory cita-
tion. She also argues that the district court erred in finding
her claims of race discrimination and retaliation barred by a
settlement agreement. We agree with appellant regarding
the motion to amend: Absent evidence of prejudice, delay--
the only reason given by the district court--cannot justify
denying a motion to amend to clarify the legal basis for a
complaint. Unable to assess on appeal the extrinsic evidence
necessary to determine precisely which administrative com-
plaint and which incidents were in fact covered by the settle-
ment agreement, we reverse the dismissal of appellant's Title
VII claims and remand to the district court for further
proceedings.
I
Appellant Sepedra Harrison, an African-American female
employee of the Internal Revenue Service, began working in
1991 as a secretary for Michael Sincavage, the Chief of the
Office of Disclosure. In 1992, she filed a complaint with the
agency's EEO office, alleging that she had been passed over
for a promotion in favor of a less experienced white woman.
Several months later, while Harrison's complaint was pend-
ing, Sincavage detailed her to the Tax Check Unit where,
according to Harrison, the work was more stressful and her
mental and physical health began to deteriorate. She claims
that although she made her health problems known to Sinca-
vage and others and repeatedly a requested a transfer out of
the Tax Check Unit, the agency refused until she was "forced
to the point of a breakdown." Complaint p 19. Yet nonmi-
nority employees suffering similar health problems, she says,
were transferred immediately.
In informal and formal EEO complaints, Harrison alleged
that during her detail to the Tax Check Unit, as well as after
her September 1993 transfer back to the Office of Disclosure,
Sincavage and others harassed her, threatened to discipline
her, and subjected her to discriminatory working conditions.
Under IRS EEO procedures, before the agency will accept a
formal complaint for investigation, an employee must file an
informal complaint; informal complaints require "informal
pre-complaint EEO counseling." Dep't of the Treasury, Indi-
vidual Complaint of Employment Discrimination (notice on
form).
Exactly how many formal and informal complaints Harri-
son filed during this period and precisely what they alleged is
not at all clear. Her affidavit and interrogatory answers
refer to a September 20 informal complaint, which became
formal on November 22, and a December 1 informal com-
plaint, which apparently concerned retaliation for making the
first complaint formal. Yet Harrison's reply brief accuses the
government of "erroneously" stating that she filed EEO
complaints on November 22 and December 1 (the same dates
mentioned in her own affidavit and interrogatory answers).
And Harrison's reply brief mentions for the first time a
November 15 informal complaint.
Because of the confusion about Harrison's administrative
complaints, and because only the November 15 complaint was
included in the record, we asked the parties at oral argument
to give us copies of all relevant complaints. In response, they
submitted the September 20 informal complaint, the Novem-
ber 22 formal complaint, and another copy of the November
15 informal complaint. However, they did not submit a
December 1 complaint, even though they had repeatedly
referred to one, or a pre-November 15 formal complaint, even
though the November 15 complaint alleges retaliation for
having filed an earlier formal complaint.
While Harrison's various complaints were being investigat-
ed, the IRS and Harrison signed a settlement agreement
dated January 6, 1994. Titled "Precomplaint Agreement in
the Discrimination Complaint of Sepedra E. Harrison," the
agreement does not indicate which complaints or incidents it
resolves. It provides simply: "It is hereby agreed by the
undersigned representative for the Internal Revenue Service
and Sepedra E. Harrison that the following constitutes a full
and complete settlement of the alleged issue of discriminated
[sic] based on Race, Sex and Retaliation." Precomplaint
Agreement in the Discrimination Complaint of Sepedra E.
Harrison 1 (Jan. 6, 1994). In return for Harrison's promise
"[n]ot to pursue the matter, which is stated above, in the
EEO informal or formal process" and "[n]ot to institute any
further legal, equitable and/or administrative appeals on the
matter(s) raised," id., the agency agreed to transfer Harrison
to another position in the IRS's EEO and Diversity Office.
Following that transfer, the agency's EEO office processed
Harrison's November 22 formal complaint, eventually dis-
missing it because it "concerns the same matters that were
the subject of another complaint that was settled." Letter
from Michael Morgan-Gaide, Director, Regional Complaint
Center, Department of the Treasury, to Gregory L. Lattimer,
Attorney for Sepedra Harrison (Sept. 11, 1995).
Harrison then filed suit in the United States District Court
for the District of Columbia. Count one of her complaint
alleged that the agency's delay in transferring her violated
the Americans with Disabilities Act, 42 U.S.C. s 12101 et seq.
(1994). Count two alleged that the delay in granting her a
transfer amounted to disparate treatment in violation of Title
VII, 42 U.S.C. s 2000e et seq. Count three alleged that the
agency retaliated against her for filing the EEO complaints,
also in violation of Title VII. The retaliation count alleged,
among other things, a physical assault that Harrison claims
occurred the day after the settlement agreement was signed.
See 12/16/97 Tr. at 3-4 (quoting Harrison's statement that
Sincavage reached across his desk and grabbed her wrist as
she was moving files from the office).
The IRS moved for dismissal or summary judgment, argu-
ing that the ADA does not apply to noncongressional federal
workers, that the settlement agreement covered all of Harri-
son's Title VII retaliation and discrimination claims, and that
Harrison failed to state a cause of action based on the alleged
assault or to exhaust her administrative remedies for that
claim. Harrison responded that she had mistakenly cited the
ADA and sought leave to amend the complaint to allege that
her disability discrimination claim actually arose under the
Rehabilitation Act of 1973, 29 U.S.C. s 791 (1994). Opposing
dismissal of her Title VII claims, Harrison submitted an
affidavit stating that the settlement agreement settled not all
of her EEO complaints, but only one informal "precomplaint"
that "addressed specific retaliatory actions that had occurred
from the time of [the] filing of the November 22 formal
complaint and November 30, 1993." Harrison Aff. p 2. She
also argued that the settlement agreement could not bar her
claims regarding the alleged assault because the assault had
not occurred until after she signed the agreement.
The district court, finding it "too late in the process for
Plaintiff to amend her complaint," granted the government's
motion to dismiss her ADA claim. See Harrison v. Rubin,
No. 95-2256 (D.D.C. Dec. 19, 1997) ("District Court Order").
Finding Harrison's retaliation and discrimination claims
barred by the settlement agreement, the court dismissed the
remaining counts. See id. Harrison appeals both orders.
II
Federal Rule of Civil Procedure 15(a) requires that leave to
file an amended complaint "shall be freely given when justice
so requires." Explaining its denial of Harrison's motion to
amend, the district court stated: "Two years have passed
since the filing of her complaint. The case is nearing trial,
and the parties have almost concluded their pre-trial discov-
ery. The Court finds that it is too late in the process for
Plaintiff to amend her complaint." District Court Order at 1.
We review the denial of a motion to amend for abuse of
discretion. See Material Supply Int'l, Inc. v. Sunmatch
Indus. Co., 146 F.3d 983, 991 (D.C. Cir. 1998).
Harrison argues that where as here a plaintiff seeks to
amend a complaint to add a new legal theory, the district
court may deny the motion only if the amendment would
prejudice the defendant. According to the government, un-
due delay is a permissible basis for denying any motion to
amend. The government relies on Foman v. Davis, but that
case simply reversed a district court's unexplained denial of a
motion to amend where "the amendment would have done no
more than state an alternative theory for recovery." 371 U.S.
178, 182 (1962). Although this Circuit has recognized undue
delay as a basis for denying a motion to amend, we have done
so only where plaintiffs sought to add new factual allegations.
See, e.g., Williamsburg Wax Museum, Inc. v. Historic Fig-
ures, Inc., 810 F.2d 243, 247 (D.C. Cir. 1987). Where an
amendment would do no more than clarify legal theories or
make technical corrections, we have consistently held that
delay, without a showing of prejudice, is not a sufficient
ground for denying the motion. See, e.g., Material Supply
Int'l, Inc., 146 F.3d at 991. As we said in Hanson v.
Hoffmann, the crux of "the liberal concepts of notice pleading
embodied in the Federal Rules" is to make the defendant
aware of the facts. 628 F.2d 42, 53 (D.C. Cir. 1980). "Unless
a defendant is prejudiced on the merits by a change in legal
theory," we explained, "a plaintiff is not bound by the legal
theory on which he or she originally relied." Id. at 53 n.11
(citations omitted).
Applying these standards, we conclude that the district
court should have granted Harrison's motion to amend to
substitute the Rehabilitation Act for the ADA. Harrison
sought to add no new factual allegations. In opposing the
motion, the government claimed no prejudice. In denying
the motion, the district court found no prejudice, and for good
reason: Claims and defenses under the two statutes are
virtually identical. See, e.g., Zukle v. Regents of Univ. of
Cal., 166 F.3d 1041, 1045 n.11 (9th Cir. 1999) ("There is no
significant difference in analysis of the rights and obligations
created by the ADA and the Rehabilitation Act.").
The government nevertheless urges us to affirm the district
court because in 1996 Harrison's lawyer, after obtaining a
delay to amend the complaint, told the court: "I'm not
amending. I'm not filing any other lawsuits. We are going
forward on this case, and that's it." 4/2/97 Tr. at 4. But as
we read the record, counsel's statement had nothing to do
with his later effort to amend Harrison's complaint to correct
the erroneous reference to the ADA. When counsel assured
the court in 1996 that he was prepared to go forward without
further amendments, he was referring only to his decision to
add no other counts or allegations based on Harrison's other
EEO administrative complaints. See id. at 2-4.
We reverse the district court's dismissal of Harrison's
disability discrimination claim and remand for further pro-
ceedings.
III
Challenging the district court's dismissal of her Title VII
claims, Harrison argues that the Precomplaint Agreement
settled only an informal complaint concerning certain retalia-
tory acts by Sincavage from November 22 to November 30,
1993. According to Harrison, the agreement resolved none of
the discrimination and retaliation claims included in her No-
vember 22 formal complaint, the basis for this lawsuit. She
relies on the following passage from her affidavit: "[The
settlement] agreement was only to address the informal
complaint of December 1, and in no way did it affect the
formal complaint of November 22." Harrison Aff. p 4. Har-
rison also points out that the settlement agreement is titled
"Precomplaint Agreement," and that "precomplaint" is the
term used to describe an informal complaint, not a formal
complaint.
The government originally disagreed with Harrison's posi-
tion. It argued that the Precomplaint Agreement settled all
of Harrison's then-pending EEO administrative complaints,
including the November 22 formal complaint. It was on the
basis of this argument that the district court dismissed Harri-
son's Title VII claims. See District Court Order at 2.
The government has now abandoned this position. In a
motion to remand filed just two days before oral argument,
the government advised us that it now agrees with Harrison
that "the parties entered into the Settlement Agreement in
order to settle the claims raised by Appellant in an informal
complaint pending before the agency" and thus "technically
settled only one of Appellant's two administrative com-
plaints." Appellee's Mot. to Remand at 2. Although the
government does not tell us which informal complaint it
believes was settled, it apparently disagrees with Harrison's
claim that the parties settled only the complaint alleging
retaliation for having filed the November 22 formal complaint.
Echoing the reasoning of the agency's EEO office, see supra
at 4, the government argues that the complaint the parties
actually settled concerned the same matters that Harrison
complained about in her November 22 formal complaint and
that formed the basis of her complaint in district court.
According to the government, Harrison conceded during ad-
ministrative discovery that the matters she raised in her
formal complaint and those that she settled in the informal
complaint were "the same." Complainant's Interrogatory
Answers p 24. Disputing the government's interpretation of
her "concession," Harrison insists that she meant only that
the two complaints concerned the same general "matters"--
i.e., discrimination and retaliation--but not the same incidents
and dates.
We do agree with the government about one thing: This
issue requires remand. In view of the government's change
in position, no one any longer defends the district court's
rationale for dismissing the Title VII counts. Both parties
agree that the plain language of the settlement agreement is
ambiguous, and both now resort to extrinsic evidence.
Under these circumstances, we reverse the dismissal of
Harrison's Title VII claims and remand to the district court
to determine whether, based on all the evidence, the Precom-
plaint Agreement bars Harrison from pursuing claims based
on the incidents alleged in her November 22 administrative
complaint. If the court concludes that the agreement does
not bar those claims, then Harrison's allegation of a post-
settlement assault can proceed without regard to her failure
to exhaust administrative remedies. See Loe v. Heckler, 768
F.2d 409, 420 (D.C. Cir. 1985) (where the ends of administra-
tive exhaustion have been served by pursuing administrative
remedies for the underlying complaint, separate exhaustion of
administrative remedies for related post-complaint conduct is
not required); Webb v. District of Columbia, 864 F. Supp.
175, 184 (D.D.C. 1994) ("[T]o force an employee to return to
the state agency and the EEOC every time he claims a new
instance of discrimination in order to have the courts consider
the subsequent incidents along with the original ones would
erect a needless procedural barrier." (internal quotation
marks and citation omitted)).
So ordered.