PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOYCE DAVIS,
Plaintiff-Appellant,

v.

VIRGINIA COMMONWEALTH
UNIVERSITY; MEDICAL COLLEGE OF
VIRGINIA; MICHAEL OLIVER,
individually and in his official
capacity as Nurse Manager, Virginia
                                                                 No. 97-1452
Commonwealth University,
Defendants-Appellees,

and

AMY NECHAMKIN, individually and in
her official capacity as Office
Manager, Psychiatry Department,
Virginia Commonwealth University,
Defendant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert R. Merhige, Jr., Senior District Judge.
(CA-96-496)

Argued: April 7, 1998

Decided: June 29, 1999

Before WIDENER and LUTTIG, Circuit Judges, and CHAMBERS,
United States District Judge for the Southern District of West
Virginia, sitting by designation.

_________________________________________________________________
Vacated and remanded by published opinion. Judge Widener wrote
the opinion, in which Judge Luttig and Judge Chambers concurred.

_________________________________________________________________

COUNSEL

ARGUED: Sa'ad El-Amin, EL-AMIN & CRAWFORD, Richmond,
Virginia, for Appellant. Pamela Finley Boston, Special Assistant
Attorney General, Office of the General Counsel, VIRGINIA COM-
MONWEALTH UNIVERSITY, Richmond, Virginia, for Appellees.
ON BRIEF: Beverly Crawford, EL-AMIN & CRAWFORD, Rich-
mond, Virginia, for Appellant. Richard Cullen, Attorney General of
Virginia, David L. Ross, Special Assistant Attorney General, Office
of the General Counsel, VIRGINIA COMMONWEALTH UNIVER-
SITY, Richmond, Virginia, for Appellees.

_________________________________________________________________

OPINION

WIDENER, Circuit Judge:

This case arises in the context of an action for disability discrimi-
nation under the Americans with Disabilities Act (ADA), 42 U.S.C.
§§ 12101-12213, as well as 42 U.S.C. §§ 1983 and 1985. The district
court denied Joyce Davis' Motion to File Second Amended Com-
plaint. We vacate and remand.

Miss Davis filed a charge of discrimination with the Equal
Employment Opportunity Commission (EEOC) on October 4, 1995
alleging discrimination on the basis of race. Then, on March 25, 1996,
she filed a second charge of discrimination with the EEOC alleging
discrimination based on race, sex, retaliation, and disability. The
EEOC mailed Miss Davis a right to sue letter on her first charge of
discrimination (race) on April 2, 1996.1 She, then, timely filed suit in
the district court on June 21, 1996 stating causes of action for dis-
_________________________________________________________________
1 That dismissal described itself as referring to "Title VII and/or the
Americans with Disabilities Act," and it referred only to charge number
XXX-XX-XXXX, that of October 4, 1995 (race).

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crimination based on disability under the ADA, and race, 42 U.S.C.
§§ 1981, 1983, and 1985, and common law torts. She filed her first
amended complaint on November 12, 1996 which alleged disability
discrimination, and violations of 42 U.S.C. §§ 1983 and 1985.

The EEOC did not mail a right to sue letter on the March 25, 1996
charge of disability and other discrimination until September 30, 1996.2
Miss Davis claimed that she did not receive such letter until October
2, 1996. The defendant asserted that Miss Davis received the letter on
October 1, 1996 based on the Postal Service's certified mail records.
On December 31, 1996, Miss Davis filed a Motion to File Second
Amended Complaint based on the second right to sue letter, which the
defendant opposed.

The district court determined that Miss Davis received the second
right to sue letter on October 1, 1996, and the 90-day statutory limita-
tion period for filing a complaint in court expired on December 30,
1996. Consequently, the district court held that it lacked jurisdiction
to hear the complaint contained in the second right to sue letter. Miss
Davis then filed a motion to alter or amend the judgment, which the
district court denied. On March 26, 1997, the district court entered a
final order granting a stipulated dismissal. Miss Davis now appeals to
this court.

Federal Rule of Civil Procedure 15(a) provides that once a respon-
sive pleading is filed, "[a] party may amend the party's pleading only
by leave of the court or by written consent of the adverse party; and
such leave shall be freely given when justice so requires." Fed. R.
Civ. Pro. 15(a). The disposition of a motion to amend is within the
sound discretion of the district court, Foman v. Davis, 371 U.S. 178
(1962), and we review for abuse of that discretion.

Defendant correctly argues that the burden rests primarily on the
plaintiff to amend the complaint, not upon the defendant to anticipate
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2 The letter covers "one or more of the following laws . . . Title VII, . . .
Age Discrimination . . ., Americans with Disabilities . . ., and/or Equal
Pay . . . ." It referred to the second EEOC complaint No. XXX-XX-XXXX,
which was filed March 25, 1996. The dismissal, as before, referred to
"Title VII and/or the Americans With Disabilities Act."

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a new claim. Deasy v. Hill, 833 F.2d 38, 41 (4th Cir. 1987), cert.
denied, 485 U.S. 977 (1988). Nevertheless, the plaintiff's second
amended complaint did not state a new claim so as to be covered by
the 90-day statute of limitations.

Miss Davis received the right to sue letter on the second EEOC
charge (disability, etc.) on October 1, 1996. Thus, the 90 day statute
of limitations began to run on October 1, 1996 and expired on
December 30, 1996.3 Nevertheless, Miss Davis filed her first amended
complaint, alleging disability discrimination in violation of the ADA
on November 12, 1996, before the 90-day statute of limitations
expired. Upon the filing of the first amended complaint, easily within
the 90-day period, the defendant was on notice of the claim, which
is all that is required under the Federal Rules of Civil Procedure's
notice pleading. Conley v. Gibson, 355 U.S. 41, 47 (1957). The sec-
ond amended complaint would only have updated the statement of
facts included in the complaint to note the issuance of the right to sue
letter.

Because the defendant, through the first amended complaint,4 was
on notice with regard to the disability discrimination claim and the
second amended complaint merely added additionally obtained facts,
the district court erred when it held that the 90-day statute jurisdic-
tionally barred consideration of the second amended complaint. No
other reason appears, or is given, to prevent the filing of the second
amended complaint, so the same should be filed.
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3 Before bringing a civil suit for an ADA violation, the aggrieved party
must file a charge with the EEOC. Dickey v. Greene, 710 F.2d 1003,
1005 (4th Cir. 1983). If the EEOC does not take action within 180 days
from the date of filing, the aggrieved party is entitled to notice from the
EEOC. 42 U.S.C. § 2000e-5(f)(1). Upon notification, i.e. a right to sue
letter, the aggrieved party has 90 days to file suit. 42 U.S.C. § 2000e-
5(f)(1).
4 An answer to the first amended complaint was filed by VCU/MCV on
December 3, 1996, which includes at least the following language in
paragraph 5: " . . . Defendants admit that Plaintiff is an African American
female who claims to have a disability and is a citizen of the United
States."

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Accordingly, the judgment of the district court is vacated and the
case is remanded for further procedings not inconsistent with this
opinion.

VACATED AND REMANDED

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