UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


HARRISON, SEPEDRA

v.

RUBIN, ROBERT E.


98-5019a

D.C. Cir. 1999


*	*	*


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


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


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


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


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


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


So ordered.