Smith v. Holder , 115 F. Supp. 3d 5 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RHONDA SMITH.
Plaintiff,
Civil Action No. 10-1302 (BAH)
v.
Judge Beryl A. Howell
1
LORETTA LYNCH,
Attorney General of the United States,
Defendant.
MEMORANDUM OPINION
This Court entered a Memorandum Opinion (“Mem. Op.”), ECF No. 71, and
accompanying Order, ECF No. 72, granting summary judgment to the defendant in this action on
May 13, 2015. Now pending before the Court is the plaintiff’s Motion to Alter or Amend Order
Granting Defendant’s Motion for Summary Judgment (“Pl.’s Mot.”), ECF No. 73. For the
reasons set forth below, the motion is denied.
I. BACKGROUND
The pertinent facts of this case were adequately explained in the Mem. Op and need not
be repeated here. See Smith v. Lynch, No. 10-1302, 2015 WL 2265100, at *1–11 (D.D.C. May
13, 2015). In short, the plaintiff, who is an African American employee of the U.S. Department
of Justice, alleges that she was subjected to discrimination, a hostile work environment, and
retaliation, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §
2000e et seq., and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., based upon her race
1
The plaintiff originally named former Attorney General Eric Holder, Jr. as the defendant in this case. Pursuant to
Federal Rule of Civil Procedure 25(d), his successor, Loretta Lynch, is automatically substituted as the new
defendant.
1
and alleged disability of right-hand Carpal Tunnel Syndrome (“CTS”). Id. at *1. This Court
held, with respect to the plaintiff’s Rehabilitation Act claims, in Counts II and IV of the
Complaint, that (1) the plaintiff was not disabled within the meaning of the Rehabilitation Act in
effect when the plaintiff was allegedly held responsible for co-workers’ assignments, id. at *4;
given discriminatory work assignments, id. at *4–5; denied advance sick leave, id. at *5–8;
charged with tardiness, id. at *8; and bumped by her supervisor, id. at *8–9, all of which events
occurred in 2007, id. at 4–9; id. at 19 (holding that plaintiff was not “disabled” within the
meaning of the pre-ADA Amendments 2 Rehabilitation Act); (2) the plaintiff failed to exhaust her
administrative remedies, as required by statute, for any events that occurred after the operative
definition of disability under the Rehabilitation Act changed on January 1, 2009, id. at 19–20 and
n.24; 3 and (3), consequently, the plaintiff’s Rehabilitation Act claims based on alleged
discrimination, hostile work environment, and retaliation failed, id. at 20.
With respect to the plaintiff’s Title VII race discrimination claims, in Counts I and III of
the Complaint, the Court held that the plaintiff failed to provide any admissible evidence
sufficient to create a triable issue regarding whether she was treated differently from non-
African-American employees or whether the defendant’s treatment of her was motivated, in any
2
“[W]hat constitutes a ‘disability’ under the Rehabilitation Act changed on January 1, 2009, when Congressional
amendments to the ADA went into effect.” Smith, 2015 WL 2265100, at *17. These amendments (the “ADA
Amendments”) “reinstat[ed] a broad scope of protection under the ADA and [rejected] the holdings in” two
Supreme Court cases that interpreted the previous version of the ADA. Id. (quoting Lytes v. D.C. Water & Sewer
Auth., 572 F.3d 936, 939 (D.C. Cir. 2009) (alterations in original). The Rehabilitation Act generally incorporates the
standards of the ADA and shares the identical definition of “disability.” 29 U.S.C. § 794(d).
3
The plaintiff did not distinguish the events she alleged constituted a hostile work environment based on her race
from those based on her disability, see generally Pl.’s Opp’n Def.’s Mot. Summ. J. (“Pl.’s MSJ Opp’n”), ECF No.
59-1, but based on the substance of those allegations, at least two of the four post-2008 events alleged plainly pertain
exclusively to her disability claim: the plaintiff alleges that the defendant failed to offer reasonable accommodations
and failed to honor her doctor’s restrictions on her activities in 2009 and 2010. Id. at 17–19. The remaining two
events alleged are ambiguous as to the claim to which they relate. The plaintiff claims “she felt singled out because
of her [2007] EEO complaint and request for accommodations” when, on October 9–10, 2009, the plaintiff was
ordered to be at her desk at the start of her shift and to notify a supervisor when she left the building, id. at 19–20,
and that the Agency examined “her personal hard drive at work” on her DOJ computer “apparently to access
documents that may relate to her EEO cases,” id. at 20.
2
way, by the plaintiff’s race. See id. at 22–23. The Court concluded that “no reasonable jury
could find that the plaintiff . . . was subjected to a hostile work environment or retaliation based
on her race.” Id. at 23. Consequently, the Court granted summary judgment to the defendant on
all counts and dismissed this action. 4 Id.; Order at 1, ECF No. 72.
The plaintiff now seeks to alter the judgment against her pursuant to Federal Rule of
Civil Procedure 59(e). Pl.’s Mot. at 1. The defendant timely filed an opposition to the motion,
Def.’s Opp’n Pl.’s Mot. (“Def.’s Opp’n”), ECF No. 74, and the plaintiff did not file a reply. This
motion is now ripe for resolution.
II. LEGAL STANDARD
A motion to alter or amend a judgment under Federal Rule of Civil Procedure 59(e) “‘is
discretionary and need not be granted unless the district court finds that there is an intervening
change of controlling law, the availability of new evidence, or the need to correct a clear error or
prevent manifest injustice.’” Messina v. Krakower, 439 F.3d 755, 758 (D.C. Cir. 2006) (quoting
Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996)). A district court’s denial of a
request for this extraordinary relief is reviewed only for abuse of discretion. See Mohammadi v.
Islamic Republic of Iran, 782 F.3d 9, 17 (D.C. Cir. 2015) (stating that “‘[r]econsideration of a
judgment after its entry is an extraordinary remedy which should be used sparingly.’” (quoting
11 Charles Alan Wright et al., FEDERAL PRACTICE & PROCEDURE § 2810.1 (3d ed. 2012)); Dyson
v. District of Columbia, 710 F.3d 415, 420 (D.C. Cir. 2013); Messina, 439 F.3d at 759;
Anyanwutaku v. Moore, 151 F.3d 1053, 1058 (D.C. Cir. 1998).
4
While summary judgment was granted to the defendant on all counts, the Court dismissed those portions of the
plaintiff’s Rehabilitation Act claims that referred to events that occurred after the ADA Amendments took effect for
lack of subject matter jurisdiction, since the plaintiff failed to exhaust her administrative remedies as to those claims.
Smith, 2015 WL 2265100, at *20 n.24.
3
Absent a demonstrated intervening change of controlling law or new evidence, the law is
well-settled that litigants may not use Rule 59(e) either to repeat unsuccessful arguments or to
assert new but previously available arguments. See Exxon Shipping Co. v. Baker, 554 U.S. 471,
485 n.5 (2008). As the Supreme Court observed, “Rule 59(e) permits a court to alter or amend a
judgment, but it may not be used to relitigate old matters, or to raise arguments or present
evidence that could have been raised prior to the entry of judgment.” Id. (internal quotation
marks and citation omitted); see also Messina, 439 F.3d at 759 (finding no error in denying Rule
59(e) motion where “motion did nothing more than rely on the same arguments that [the movant]
originally made.”) (internal quotation marks and citation omitted). This is because “Rule 59(e)
motions are aimed at reconsideration, not initial consideration,” and arguments raised for the first
time on a Rule 59(e) motion may be deemed “waived.” GSS Grp. Ltd. v. Nat’l Port Auth., 680
F.3d 805, 812 (D.C. Cir. 2012); see also District of Columbia v. Doe, 611 F.3d 888, 896 (D.C.
Cir. 2010) (“[A]n issue presented for the first time in a motion pursuant to Federal Rule of Civil
Procedure 59(e) generally is not timely raised; accordingly, such an issue is not preserved for
appellate review unless the district court exercises its discretion to excuse the party’s lack of
timeliness and consider the issue.”); but see City of New York v. Nat’l R.R. Passenger Corp., 776
F.3d 11, 17 (D.C. Cir. 2015) (declining to consider on appeal plaintiff’s “reformulated” theory of
claim, noting that “a party seeking to raise a new issue on appeal should first present it to the
district court pursuant to a Rule 59(e) or 60(b)(6) motion” since the D.C. Circuit “continue[s] to
insist that a party wishing to raise a new issue after judgment first advance it before the district
court”). Thus, “Rule 59(e) is not a vehicle to present a new legal theory that was available prior
to judgment,” Patton Boggs LLP v. Chevron Corp., 683 F.3d 397, 403 (D.C. Cir. 2012), or “a
chance for [a party] to correct poor strategic choices,” SEC v. Bilzerian, 729 F. Supp. 2d 9, 15
4
(D.D.C. 2010). See also Kattan ex rel. Thomas v. District of Columbia, 995 F.2d 274, 276 (D.C.
Cir. 1993) (“[T]his Court has recognized that a losing party may not use a Rule 59 motion to
raise new issues that could have been raised previously.”). “The strictness with which such
motions are viewed is justified by the need to protect both the integrity of the adversarial process
in which parties are expected to bring all arguments before the court, and the ability of the parties
and others to rely on the finality of judgments.” U.S. Commodity Futures Trading Comm’n v.
McGraw-Hill Cos., Inc., 403 F. Supp. 2d 34, 36 (D.D.C. 2005); accord Silk v. Sandoval, 435
F.2d 1266, 1268 (1st Cir. 1971) (acknowledging “the complementary interest in speedy
disposition and finality, clearly intended by Rule 59”).
To constitute “clear error” within the meaning of Rule 59(e), courts have required “‘a
very exacting standard,’” Bond v. U.S. Dep’t of Justice, 286 F.R.D. 16, 22 (D.D.C. 2012)
(quoting Lightfoot v. District of Columbia, 355 F. Supp. 2d 414, 422 (D.D.C. 2005)), such that
the “final judgment must be ‘dead wrong’ to constitute clear error,” Lardner v. FBI, 875 F. Supp.
2d 49, 53 (D.D.C. 2012) (quoting Parts & Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F.2d
228, 233 (7th Cir. 1988)). Indeed, the Seventh Circuit has vividly observed that “[t]o be clearly
erroneous, a decision must strike [a court] as more than just maybe or probably wrong; it must . .
. strike [the court] as wrong with the force of a five-week-old, unrefrigerated dead fish.” Parts &
Electric Motors, 866 F.2d at 233. Hence, a fortiori, “‘[m]ere disagreement does not support a
Rule 59(e) motion.’” United States ex rel. Becker v. Westinghouse Savannah River Co., 305
F.3d 284, 290 (4th Cir. 2002) (quoting Hutchinson v. Staton, 994 F.2d 1076, 1082 (4th Cir.
1993)).
Finally, although “[t]he term ‘manifest injustice’ eludes precise definition,” Roane v.
Gonzales, 832 F. Supp. 2d 61, 64 (D.D.C. 2011), it is clear that “manifest injustice” is an
5
exceptionally narrow concept in the context of a Rule 59(e) motion. The D.C. Circuit has said
that manifest injustice arises from “rulings that upset settled expectations—expectations on
which a party might reasonably place reliance,” Qwest Servs. Corp. v. FCC, 509 F.3d 531, 540
(D.C. Cir. 2007), and does not result merely because a harm may go unremedied, accord Assoc.
Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 536 (1983)
(“[T]he judicial remedy cannot encompass every conceivable harm that can be traced to alleged
wrongdoing.”). Instead, “manifest injustice” must entail more than just a clear and certain
prejudice to the moving party, but also a result that is fundamentally unfair in light of governing
law.
III. DISCUSSION
As the defendant correctly points out, the plaintiff makes no attempt to offer new
evidence or assert an intervening change of law to justify her motion. Def.’s Opp’n at 3; see
generally Pl.’s Mot. Thus, it is only necessary to address whether the plaintiff has raised a “clear
error” in the Court’s previous opinion sufficient to warrant reconsideration of the judgment after
its entry. See Messina, 439 F.3d at 758. The plaintiff has not done so.
The plaintiff contends that the Court “applied incorrect legal standards in considering
Defendant’s summary judgment motion and committed clear error with some of its findings.”
Pl.’s Mot. at 2. In support of this contention, the plaintiff argues, first, that the Court “applied an
incorrect standard” to determine “whether [the plaintiff] presented triable issues.” Id. Next, the
plaintiff strains to revive her Rehabilitation Act claims by arguing the Court erred in determining
that the plaintiff’s right-hand CTS was not a disability under the Rehabilitation Act in effect
prior to the ADA Amendments of 2008, id. at 5, and in its treatment of alleged events occurring
after January 1, 2009, when the ADA Amendments took effect, id. at 9–12. Finally, the plaintiff
6
criticizes the Court’s consideration of her Title VII claims for incorrectly applying a correctly
articulated legal standard. Id. at 13–19. The Court is not persuaded by any of these arguments,
each of which is addressed in turn.
A. The Correct Summary Judgment Standard Was Applied
First, the plaintiff contends that her own self-serving, hearsay statements, which were
uncorroborated by any external evidence and contradicted by witnesses having direct knowledge
of the facts, raised issues of material fact sufficient to defeat summary judgment. Pl.’s Mot. at
2–3. According to the plaintiff, rejecting such evidence, standing alone, violates the requirement
under Federal Rule of Civil Procedure 56 that all reasonable inferences be drawn in favor of the
non-moving party. Id. at 3. Quoting the Supreme Court’s caution in Tolan v. Cotton, 134 S. Ct.
1861, 1866 (2014), that courts “must take care not to define a case’s ‘context’ in a manner that
imports genuinely disputed factual propositions,” Pl.’s Mot. at 3, the plaintiff contends that this
Court’s opinion improperly weighed the evidence against the plaintiff.
The plaintiff’s reliance on Tolan is misplaced. In Tolan, the Supreme Court considered
an alleged excessive force case, pursuant to 42 U.S.C. § 1983, involving at least six witnesses—
four family members and two police officers. 134 S. Ct. at 1863–64. In reviewing the facts
offered at summary judgment, the Supreme Court relied upon statements from multiple
witnesses, including from persons not otherwise involved as parties in the case, to determine that
a genuine issue of material fact sufficient for trial existed. See id. at 1866–67. For instance, the
Supreme Court noted the discrepancy between the lower court’s finding that the location where
the alleged incident of excessive force occurred was “dimly-lit,” and directly contrary testimony
from the plaintiff’s father that the area was illuminated by a non-decorative gas lantern, as well
as statements from at least three witnesses that the area was lit by two motion-activated
spotlights. Id. As another example, the Supreme Court recited the testimony from two
7
witnesses, the plaintiff and his mother, describing the victim of the alleged excessive force as
being on his knees when he was shot, while a third witness, another police officer on the scene,
described the plaintiff as “on both feet . . . looking as if he was going to move forward.” Id. at
1867. In the face of this contradictory eyewitness testimony regarding the lighting, the victim’s
position during the shooting, and other “central facts of this case,” id. at 1866, the Supreme
Court concluded that “[b]y weighing the evidence and reaching factual inferences contrary to
[the plaintiff’s] competent evidence,” summary judgment was erroneously granted, id. at 1868.
By contrast, in the instant matter, the plaintiff presented no evidence other than her own
self-serving statements that she was subjected to discrimination and a hostile work environment.
Her statements that she was subjected to “discriminatory work assignments” were directly
refuted by multiple witnesses with “first-hand knowledge of the relevant facts.” Smith, 2015 WL
2265100, at *21. The plaintiff’s disparate treatment allegations were not accompanied by any
evidence other than her own admittedly speculative assertions, without any documentary or
testimonial evidence from any other witness, despite ample opportunity for discovery. Id.
Unlike in Tolan, the plaintiff did not submit any evidence from other witnesses or other
documentary evidence on any issue of material fact such that drawing an inference in favor of
the plaintiff was either reasonable or warranted. See Greer v. Paulson, 505 F.3d 1306, 1315
(D.C. Cir. 2007) (noting that plaintiff’s own statement amounting to “sheer hearsay . . . counts
for nothing on summary judgment” (citing Gleklen v. Democratic Cong. Campaign Comm., Inc.,
199 F.3d 1365, 1369 (D.C. Cir. 2000)).
Tolan does not overturn the multiple cases in the D.C. Circuit holding that “inadmissible
evidence” and mere speculation, “counts for nothing” at the summary judgment stage. Gleklen,
199 F.3d at 1369. Moreover, Tolan, and this Court’s opinion in Smith, are entirely consistent
8
with Federal Rule of Civil Procedure 56(e), which provides that “[i]f a party fails to properly
support an assertion of fact or fails to properly address another party’s assertion of fact,” a court
may “consider the fact undisputed for the purposes of the motion” and grant summary judgment
to the moving party, so long as “the motion and supporting materials . . . show that the movant is
entitled to it.” FED. R. CIV. P. 56(e)(2–3). Indeed, the Tolan Court expressly cabined its ruling,
stating that, on remand, the facts cited by the Supreme Court were not “the only facts that the
[Circuit Court] should consider, or that no other facts might contribute to the” resolution of the
ultimate issue in that case. Tolan, 134 S. Ct. at 1868.
The D.C. Circuit has noted that “the objective of summary judgment” is “to prevent
unnecessary trials.” Gleklen, 199 F.3d at 1369. Summary judgment would be virtually
unachievable if Rule 56 were construed as the plaintiff urges and the non-moving party could
create a genuine issue of material fact by doing no more than simply disagreeing with the
movant’s documentary evidence and testimony from knowledgeable witnesses. The plaintiff
must do more than merely assert as “facts” her beliefs about material issues. Instead, beliefs that
are uncorroborated—and, to a large extent, contradicted—by other witnesses or documentary
evidence does not amount to competent evidence sufficient to defeat summary judgment,
particularly when the factual assertions are susceptible to corroboration after an ample
opportunity for discovery. 5 See Giles v. Transit Emps. Fed. Credit Union, No. 14-7055, 2015
5
The plaintiff’s assertion that “[s]ummary judgment should be issued sparingly against plaintiffs in employment
discrimination cases,” Pl.’s Mot. at 4, is unsupported by Supreme Court and D.C. Circuit precedent. The plaintiff
relies primarily on two cases, Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 137 (2000), and
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 803 (1973). Pl.’s Mot. at 4–5. Neither case involved a motion
for summary judgment. See McDonnell Douglas, 411 U.S. at 797 (noting district court resolved case on motion to
dismiss); Reeves, 530 U.S. at 138 (noting case was resolved after trial and “the District Court twice denied oral
motions by respondent for judgment as a matter of law”). Moreover, in both cases, the Supreme Court held that
“sufficient evidence for the trier of fact to disbelieve the defendant’s legitimate, nondiscriminatory explanation for
its action,” Reeves, 530 U.S. at 137, was necessary to support a ruling the plaintiff’s favor. See McDonnell Douglas,
411 U.S. at 807 (holding that plaintiff was required “to demonstrate that [the defendant’s] assigned reason for
refusing to re-employ was a pretext or discriminatory in its application”). In affirming a district court’s grant of
9
WL 4217787, at *5 (D.C. Cir. July 14, 2015) (holding that plaintiff “cannot create a dispute of
material fact by distorting testimony and then complaining of a lack of documentation” when
documentary evidence in record contradicted plaintiff’s otherwise uncorroborated statement). In
some circumstances, even evidence generally supporting the plaintiff’s assertions, provided by a
disinterested witness, can be insufficient to defeat a motion for summary judgment. See id.
(finding, in ADA action, co-workers’ “positive view of [the plaintiff’s performance” to be “of
exceptionally limited relevance” when not communicated to supervisors). Thus, the Court
applied the correct standard by drawing all reasonable inferences in favor of the plaintiff, while
correctly stopping short of accepting all factual assertions of the plaintiff in the face of directly
contrary evidence when the plaintiff’s assertions derived from inadmissible evidence. 6 See id. at
*6 (crediting, on summary judgment, defendant’s testimony, supported by documentary
evidence, over plaintiff’s uncorroborated assertions to the contrary).
summary judgment in an ADA case, the D.C. Circuit recently reaffirmed the applicability of Rule 56 to
discrimination cases and, relying in part on Reeves, stated “an employer is entitled to summary judgment where ‘the
plaintiff created only a weak issue of fact as to whether the employer’s [explanation] was untrue and there [is]
abundant and uncontroverted independent evidence that no discrimination [has] occurred.’” Giles v. Transit Emps.
Fed. Credit Union, No. 14-7055, 2015 WL 4217787, at *11 (D.C. Cir. July 14, 2015) (quoting Reeves, 530 U.S. at
148) (first alteration added). Specifically, the Giles court noted that “there are ‘instances where, although the
plaintiff has . . . set forth sufficient evidence to reject the defendant’s explanation, no rational factfinder could
conclude that the action was discriminatory.’” Id. at *7 (quoting Reeves, 530 U.S. at 148). This case is such an
instance, even if the plaintiff had set forth sufficient evidence, which she has not.
6
Additionally, the plaintiff ignores another fundamental—and fatal—flaw in her Complaint: the utter lack of any
evidence of causation. See Giles2015 WL 4217787, at *11 (affirming summary judgment in ADA case where
plaintiff made “exceedingly weak” prima facie case, including no evidence of causation). While it is true that
disparate treatment and circumstantial evidence may form the basis of a discrimination claim, in such cases the
plaintiff must present statistics or other evidence sufficient to “permit the inference that, absent other explanation,
the disparity more likely than not resulted from illegal discrimination.” See Aliotta v. Bair, 614 F.3d 556, 563 (D.C.
Cir. 2010) (citing Segar v. Smith, 738 F.2d 1249, 1274 (D.C. Cir. 1984)). Here, the “plaintiff has not alleged the use
of racially discriminatory comments or other overt acts of racism in her workplace” or comments or actions related
to her disability. Smith, 2015 WL 2265100, at *20. The plaintiff’s burden, then, was to present sufficient evidence,
statistical or otherwise, from which an inference could be drawn that “the disparity [in treatment] more likely than
not resulted from illegal discrimination.” Aliotta, 614 F.3d at 563. Since the plaintiff failed utterly to present any
such evidence, the plaintiff failed to prove that the alleged discrimination, hostile work environment, and retaliation
were in any way related to her race or alleged disability. Consequently, the plaintiff’s case fails because she did not
offer any evidence that any of the alleged incidents were caused by illegal discrimination.
10
In any event, the issue of the appropriate standard was briefed by the plaintiff during
summary judgment. See Pl.’s Opp’n Def.’s Mot. Summ. J. (“Pl.’s MSJ Opp’n”) at 23, ECF No.
59-1. Thus, the plaintiff’s argument is merely an attempt to “relitigate old matters, or to raise
arguments or present evidence that could have been raised prior to the entry of judgment,” Exxon
Shipping Co., 554 U.S. at 485 n.5, which is improper on a Rule 59(e) motion. This argument is
rejected as a ground for reconsideration.
B. The Plaintiff Was Not Disabled Within The Meaning Of The Pre-ADA
Amendments To The Rehabilitation Act
The plaintiff does not challenge the Court’s use of the Rehabilitation Act’s definition of
“disability” in effect prior to 2009 to evaluate the alleged pre-2009 incidents, see generally Pl.’s
Mot., but nonetheless contends that the Court erred in determining that she was not disabled
under that version of the law, Pl.’s Mot. at 5–9. The plaintiff’s arguments are unpersuasive. She
first cites a number of out-of-circuit cases purportedly holding that CTS “is a disability under
the” pre-ADA Amendments definition of disabled, but none of those cases is binding on this
Court. Id. at 6. Additionally, none of those decisions are persuasive since none post-date Toyota
Motor Manufacturing Kentucky, Inc. v. Williams (Toyota), 534 U.S. 184 (2002), and pre-date the
ADA Amendments. See Pl.’s Mot. at 6. Consequently, none of the cases cited by the plaintiff
stand for the proposition that, post–Toyota, the pre-Amendments ADA always supported CTS as
a disability. In any event, the plaintiff misconstrues the Court’s holding: the Court did not find
that CTS could never be a disability within the meaning of the Rehabilitation Act, either before
or after the ADA Amendments; rather, the Court found that the plaintiff had failed to prove that
her CTS was a disability. See Smith, 2015 WL 2265100, at *18–20. 7
7
The plaintiff refers to one case involving a plaintiff with CTS where the requests for accommodation occurred after
Toyota and before the ADA Amendments, though the decision was rendered after the ADA Amendments took
effect. See Pl.’s Mot. at 6 (citing Giannattasia v. City of New York, 2011 WL 4629016, at *6 (E.D.N.Y. Sept. 30,
11
The plaintiff further misinterprets the Court’s decision as reading Toyota to require “a
medical condition . . . to impair an employee’s major life activity completely to qualify as a
disability.” Pl.’s Mot. at 6. The Court did not so read Toyota. Rather, Toyota, until the law was
changed by the ADA Amendments, imposed “a demanding standard for qualifying as disabled,”
such that “an individual must have an impairment that prevents or severely restricts the
individual from doing activities that are of central importance to most people’s daily lives.”
Smith, 2015 WL 2265100, at *18 (quoting Toyota, 534 U.S. at 197–98). The facts in Toyota
were closely analogous to the facts in the instant matter, except that the plaintiff in Toyota was
arguably more impaired by her CTS than the plaintiff here. See id. The Supreme Court held in
Toyota, however, that the plaintiff in that case was not disabled within the meaning of the pre-
Amendments ADA, Toyota, 534 U.S. at 202, leading inexorably to the Court’s conclusion that
the plaintiff in this matter was similarly not disabled, Smith, 2015 WL 2265100, at *19 (“Unlike
the plaintiff in Toyota, who was entirely unable to perform certain activities, both at work and at
home, the plaintiff in the instant matter may have experienced discomfort due to the CTS in her
right hand, but was still able to complete most of her daily tasks, at work and at home.”) (internal
citations omitted).
The plaintiff had the opportunity to argue this point during summary judgment briefing,
since it was raised and argued extensively by the defendant, see Def.’s Mem. Supp. Def.’s Mot.
Summ. J. (“Def.’s MSJ Mem.”) at 21, 29–33, ECF No. 55, but the plaintiff chose to direct much
of her “argument on this point . . . toward whether the defendant provided reasonable
accommodations for her medical condition,” Smith, 2015 WL 2265100, at *18. Rule 59(e)
2011)). The Giannattasia decision is inapposite. In Giannattasia, the Court did not consider whether CTS
constituted a disability, but only addressed whether the defendant had sufficient notice of the plaintiff’s condition.
Id. Thus, this case sheds no light on whether CTS constituted a disability under the differing standards of the pre-
Amendments ADA or the post-Amendments ADA. See generally id.
12
motions are not opportunities to revisit failed litigation strategies. See Wannall v. Honeywell,
Inc., 775 F.3d 425, 430 (D.C. Cir. 2014) (affirming this Court’s decision on motion for
reconsideration by holding plaintiff to “strategic choice” that ultimately resulted in dismissal of
action); Bilzerian, 729 F. Supp. 2d at 15. Thus, in addition to being incorrect legally, the
plaintiff’s argument on this score is an attempt at the proverbial “second bite at the apple” that is
improper on a Rule 59(e) motion. 8 This argument is rejected as a ground for reconsideration.
C. The Court Properly Rejected Plaintiff’s Post-2008 Disability Allegations
The plaintiff makes three interrelated arguments that the Court erred in its treatment of
her post-2008 disability allegations. Pl.’s Mot. at 9–12. According to the plaintiff, these post-
2008 disability allegations are set out in eleven of almost 300 paragraphs in the Complaint:
paragraphs “210, 214, 215, 216, 217, 225, 229, 230, 234, 235 and 237.” Id. at 12. These eleven
paragraphs allege, in sum, that: (1) “after a year and half of interaction,” the plaintiff was not
accommodated with “compatible voice activated software, Compl., ¶ 210; (2) “[d]uring the
relevant period” and/or “[o]n various occasions between 2009 and the present,” the plaintiff
requested reassignment as a reasonable accommodation but those requests were denied, id. ¶¶
214–17; and (3) in 2009 and “[t]hroughout 2010,” the plaintiff was subject to the same medical
restrictions of not lifting or carrying over ten pounds, but “the Agency continued to ignore her
medical restrictions and failed to provide full reasonable accommodations,” id. at 225, 229, 230,
234–35, 237. The plaintiff argues that the Court erroneously ignored these post-2008 allegations
8
The plaintiff cites one case from another district for the proposition that “[t]he fact that the employer provided an
accommodation, but then revoked it is a fact for a jury to consider in deciding whether Plaintiff had a disability
under the ADA.” Pl.’s Mot. at 9 (citing Hodgetts v. City of Venice, Fla., 794 F. Supp. 2d 1265, 1275 (M.D. Fla.
2011)). Hodgetts does not stand for the proffered proposition. Hodgetts addressed whether the plaintiff was
“obviously disabled” such that he did not need to ask for reasonable accommodations. Hodgetts, 794 F. Supp. 2d at
1274–75. The Hodgetts court found sufficient evidence in the record showing that the defendant employer was
aware of the plaintiff’s disability because the employer had extended, and then removed, disability accommodations.
Id. at 1275. The issue whether the plaintiff was actually disabled, as opposed to being perceived to be disabled, was
not before the Hodgetts court. Thus, Hodgetts is inapposite.
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in considering her Rehabilitation Act claims in Counts II and IV, Pl.’s Mot. at 11–12, and,
instead, should have treated these post-2008 allegations as sufficient to overcome any deficiency
in her pre-2009 right-hand CTS disability allegations, Pl.’s Mot. at 9–10, particularly when
combined with her allegations of left-hand CTS disability. These arguments are addressed
below.
First, contrary to the plaintiff’s view, the Court correctly characterized her Rehabilitation
Act claims when stating that “the plaintiff makes no reference to any events occurring after
January 2009 in Count II or Count IV, the counts raising Rehabilitation Act claims.” Pl.’s Mot.
at 11 (quoting Smith, 2015 WL 2265100, at *19). Count II cites the following as grounds for the
plaintiff’s disability discrimination claim under the Rehabilitation Act: a hostile work
environment “beginning in July 2007,” Compl. ¶ 251; the plaintiff’s CTS, which began in March
2007, id. ¶ 254; the alleged denial by the defendant of reasonable accommodations for her CTS
and “not satisfying the work restrictions ordered by doctors for her hand/wrist condition,” id. ¶
257; the defendant’s “repeatedly denying [the plaintiff] advanced sick leave, while granting it to
similarly situated employees,” id.; and “by continuously not engaging in the interactive process
with respect to her disabilities,” id. Count IV refers only to an alleged incident in August 2007,
when the plaintiff’s supervisor allegedly bumped into the plaintiff while the plaintiff was leaving
her cubicle and unspecified retaliation caused by the defendant “continuing to discriminate
against her with regard to her disabilities,” id. ¶ 277. Thus, no date or specific incident is
referenced in either Count II or Count IV that occurred after January 1, 2009.
The plaintiff contends that the Court’s error stems from over-looking the boiler-plate
verbiage in Counts II and IV, paragraphs 248 and 271, respectively, that “adopt[] and
incorporate[] by reference” all of the previous paragraphs in the Complaint, which prior
14
paragraphs include paragraphs “210, 214, 215, 216, 217, 225, 229, 230, 234, 235 and 237,” Pl.’s
Mot. at 12, referring to post-January 2009 events. Plainly, none of the alleged incidents set out
in those cited paragraphs were expressly described in Counts II or IV as factual support for the
legal claims for violation of the Rehabilitation Act.
In any event, the Court addressed the events alleged in paragraphs 224 through 239 of the
Complaint and found them to be insufficient to raise a claim for hostile work environment or
retaliation. See Smith, 2015 WL 2265100, at *19. 9 The Court noted that these events were not
referred to in the EEO Complaint the plaintiff filed in 2007 and, to the extent those paragraphs
alleged discrete events occurring after January 1, 2009, the plaintiff provided no evidence that
she had taken the necessary steps to exhaust her remedies as to those events. Id. 10
Second, even if her right-hand CTS did not qualify as a disability pre-ADA Amendments,
the plaintiff posits that the Court “erred in dismissing Plaintiff’s Rehabilitation Act claims after
January 1, 2009,” when the ADA Amendments took effect, “by holding that she was required to
initiate a new EEO complaint over such claim through the Agency,” Pl.’s Mot. at 9, and by not
treating the “Defendant’s duty to accommodate Plaintiff’s CTS” as “continu[ing] into January
9
The five paragraphs in the Complaint cited in the plaintiff’s motion that are not discussed directly in the Mem. Op.,
namely, paragraphs 210 and 214–17, describe alleged failures to accommodate the plaintiff’s CTS with “compatible
voice activated software” or reassignment to the plaintiff’s preferred office and, with the exception of paragraph
217, contain no dates, which would alert the reader these paragraphs pertain to post-2009 events. Compl. ¶¶ 210,
214–17. Ultimately, however, none of these paragraphs contradict the Court’s holding that the plaintiff had failed to
plead, let alone come forward with specific evidence, that she had exhausted her administrative remedies as to the
alleged events that occurred after January 1, 2009. Smith, 2015 WL 2265100, at *19.
10
The plaintiff contends that the Court’s citation to Kapache v. Holder, 677 F.3d 454, 461 n.7 (D.C. Cir. 2012) does
not support the Court’s decision because “all of the claimed disability discrimination” in Kapache preceded the
ADA Amendments. Pl.’s Mot. at 10. The plaintiff misreads the Mem. Op. Kapache was cited for the proposition
that “the pre-2009 definitional standard” for what constitutes a disability “applies to the vast majority of conduct
alleged in this matter.” Smith, 2015 WL 2265100, at *18. The Kapache court held that because the events at issue
in Kapache occurred before the ADA Amendments took effect, the pre-Amendments definition of disability applied.
Kapache, 677 F.3d at 461 n.7. Consequently, the Court’s application of the pre-ADA Amendments definition of
“disability” to the pre-2009 conduct is entirely supported by Kapache. See Smith, 2015 WL 2265100, at *18
(“Thus, the pre-2009 definition of ‘disability’ applies to the alleged conduct that occurred prior to January 1,
2009.”).
15
2009, when the [post-Amendments ADA] governed its actions,” id. at 10. According to the
plaintiff, “a court complaint ‘may encompass any kind of discrimination like or related to
allegations alleged in the [EEOC] charge and growing out of such allegations during the
pendency of the case before the Commission,’” Pl.’s Mot. at 9 (quoting Sanchez v. Standard
Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970)), and, consequently, the plaintiff was not
required to exhaust her administrative remedies for any claims after January 1, 2009, when her
CTS might have been covered by the Rehabilitation Act, see Smith, 2015 WL 2265100, at *19
(assuming, without deciding, that the plaintiff “could prove she were disabled within the
meaning of the ADA Amendments” beginning in 2009).
The Court addressed and rejected this argument in its opinion, noting that every incident
allegedly occurring after January 1, 2009, when the ADA Amendments took effect, was “discrete
from the issues raised in her 2007 EEO Complaint.” Smith, 2015 WL 2265100, at *19. To the
extent that the plaintiff argues that the defendant had a continuing “duty to accommodate
Plaintiff’s CTS,” Pl.’s Mot. at 10, the plaintiff is mistaken: the defendant had no duty to
accommodate the plaintiff’s CTS prior to January 1, 2009, since the plaintiff was not disabled
under the meaning of the Rehabilitation Act during that period. See id. The defendant could
have no continuing “duty,” since it had no “duty” in the first instance. As a result, the plaintiff
was required to initiate a new EEOC complaint when her disability—assuming, arguendo, that
her CTS is a disability under the post-Amendments version of the ADA—manifested itself. As
the Court noted in Smith, the plaintiff “does not plead, nor has she submitted any evidence after
discovery, that she made any attempt to pursue, administratively, any Rehabilitation Act claims
based on events occurring in 2009 through the appropriate EEO channels.” Smith, 2015 WL
16
2265100, at *19. While the Court did not elaborate on the basis for this conclusion, the
reasoning is dictated by applicable precedents.
The plaintiff’s position appears to be that even if her right-hand CTS did not constitute a
disability under the pre-Amendments Rehabilitation Act, since this condition persisted into 2009,
when it may have arguably qualified as an actionable disability, all of the defendant’s conduct
should be considered in support of her claim. See Pl.’s Mot. at 9–10 (arguing the defendant’s
“duty to accommodate Plaintiff’s CTS continued into January 2009, when the [ADA
Amendments] governed its actions”). The plaintiff’s position would result in giving the ADA
Amendments retroactive effect, which is barred by binding case law. See Lytes v. D.C. Water &
Sewer Auth., 572 F.3d 936, 940 (D.C. Cir. 2009).
The D.C. Circuit in Lytes examined the ADA Amendments and noted that Congress’
“decision to delay the effective date” of the Amendments “would make no sense” if it was to
apply retroactively. 572 F.3d at 940. The Lytes court held that the ADA Amendments
“broadened the class of employees entitled to reasonable accommodation.” Id. at 942.
Consequently, “[t]o hold the [defendant’s] refusal to accommodate [the plaintiff] was unlawful
under the new, broader [statute] but not under the pre-Amendments ADA [] would be to give the
[ADA Amendments] the disfavored retroactive effect.” Id.
The Lytes logic is dispositive in the instant matter. The plaintiff was not disabled under
the Rehabilitation Act in effect when she made her EEO Complaint in 2007 or when she made
requests for reasonable accommodation prior to January 1, 2009. Smith, 2015 WL 2265100, at
*19. Thus, the defendant’s “settled expectation[]” prior to January 1, 2009, was that the plaintiff
was not entitled to any reasonable accommodation. See Lytes, 572 F.3d at 940. The plaintiff had
no legally cognizable claim under the Rehabilitation Act until, arguably, January 1, 2009. If, as
17
the plaintiff contends, the plaintiff had no obligation after January 1, 2009, when the ADA
Amendments took effect, to request reasonable accommodations under the new standard, and
instead was allowed to rely on the previous, invalid, request, the ADA Amendments would be
given the prohibited retroactive effect by imposing a new duty on the defendant on January 1,
2009 that did not exist on December 31, 2008. Consequently, to “protect settled expectations,”
id., the plaintiff was required to request reasonable accommodations, and be evaluated for her
eligibility for such accommodations, when the law changed on January 1, 2009 and, arguably,
included her CTS within the meaning of the term “disabled.”
This conclusion is further bolstered by the Supreme Court’s decision in National
Railroad Passenger Corp. v. Morgan (Morgan), 536 U.S. 101 (2002). In Morgan, a Title VII
discrimination and retaliation case, the Supreme Court held that “[e]ach discrete discriminatory
act starts a new clock for filing charges alleging that act,” and “[t]he existence of past acts and
the employee’s prior knowledge of their occurrence [] does not bar employees from filing
charges about related discrete acts so long as the acts are independently discriminatory and
charges addressing those acts are themselves timely filed.” 536 U.S. at 113. As explained
supra, any acts that occurred prior to January 1, 2009 could not have been discriminatory based
on the Rehabilitation Act because the plaintiff was not disabled within the meaning of the
Rehabilitation Act and, therefore, had no rights under the Act.
The plaintiff refers to the defendant’s action as “continuing,” see, e.g., Pl.’s Mot. at 9–10,
but the Morgan Court explicitly rejected the so-called “continuing violations” doctrine with
respect to discriminatory actions where a “[d]iscrete act[] such as termination, failure to promote,
denial of transfer, or refusal to hire” can be identified, Morgan, 536 U.S. at 114. The majority
view on this Court is that Morgan requires “a plaintiff alleging discrete acts of discrimination or
18
retaliation—including those filed after an administrative complaint—[to] exhaust his
administrative remedies with respect to the later-occurring incidents even if they are related to
the claims in the administrative complaint.” Mount v. Johnson, 36 F. Supp. 3d 74, 84 (D.D.C.
2014) (collecting cases and noting that “[t]he D.C. Circuit has repeatedly declined to weigh in on
this matter”).
The plaintiff urges this Court to follow the minority view in this district that “appl[ies]
the D.C. Circuit’s pre-Morgan ‘like or reasonabl[y] related’ test articulated in Park v. Howard
University, which permits unexhausted discrimination and retaliation claims to proceed as long
as the claims are ‘like or reasonably related to the allegations of [a prior administrative] charge.’”
Hicklin v. McDonald, 2015 WL 3544449, at *3 (D.D.C. June 8, 2015) (internal citation omitted);
Pl.’s Mot. at 9. This Court declines the invitation and has already held that the plaintiff was
required to exhaust her administrative remedies as to the post-2008 incidents, conforming to the
majority view. Smith, 2015 WL 2265100, at *19.
Regardless, under either the majority or the minority view of the Supreme Court’s
holding in Morgan, the plaintiff’s claim fails. The plaintiff’s 2007 EEO Complaint refers only to
“the July 20, 2007 memorandum ‘requiring [the plaintiff] to use sick or annual leave, or to use
leave without pay (LWOP) to cover absences associated with the 30-day no keyboarding
restriction invoked by her physician,’ and the August 14, 2007 incident where the plaintiff
‘allege[d] that her 1st Line Supervisor bumped her while existing [sic] her cubicle.’” Smith,
2015 WL 2265100, at *9 (internal citations omitted). The plaintiff does not plead, nor has she
offered any evidence, that she exhausted her administrative remedies as to the discrete acts she
alleges occurred after January 1, 2009, including the alleged search of her DOJ computer,
Compl. ¶ 231, the October 9–10, 2009 instruction regarding the time she was to be at her desk
19
and reporting to her superiors about leaving the building, Pl.’s MSJ Opp’n at 19–20, 11 or the
November 9, 2009 “memorandum rejecting [the plaintiff’s] doctor’s medical restrictions,” id. at
18. Under the majority view, therefore, these incidents were not administratively exhausted and
cannot be the basis of any complaint of discrimination or retaliation. See Mount, 36 F. Supp. 3d
at 84.
Under the minority view, the aforementioned post-January 1, 2009 conduct is not “like or
reasonably related to” the claims in the plaintiff’s July 2007 EEO Complaint. “[C]ourts that
adhere to this view have held that ‘[a]t a minimum, the . . . claims must arise from ‘the
administrative investigation that can reasonably be expected to follow the charge of
discrimination,’ but ‘[c]laims of [] ideologically distinct categories’ of discrimination and
retaliation . . . are not ‘related’ simply because they [arise] out of the same incident.’” Hicklin,
2015 WL 3544449, at *4 (internal citations omitted). In the instant matter, the post-2008 events
complained of neither arose out of the same incident nor could have been “reasonably expected
to follow the charge of discrimination.” See id. None of the incidents complained of had
anything to do with the 2007 memorandum instructing the plaintiff to use personal leave or
LWOP until she could return fully to her duties, nor did they have anything to do with the
bumping incident in August 2007. The only links between the post-2008 alleged events and the
2007 EEO Complaint are that the supervisor who instructed the plaintiff to be at her desk when
her shift started was the same in October 2009 as in July and August 2007, and the plaintiff’s
belief that the alleged hard drive search on her DOJ computer had something to do with her EEO
complaints. See Pl.’s MSJ Opp’n at 19–20. The plaintiff makes no attempt to show how her
post-2008 allegations, namely, increased monitoring and rejection of the plaintiff’s medical
11
The October 9–10, 2009 incident is not mentioned in the plaintiff’s Complaint. See generally Compl.
20
restrictions after the Department of Labor’s Office of Workers’ Compensation Programs
determined the plaintiff was not eligible for workers’ compensation, could have been reasonably
expected to arise from the administrative investigation of her complaint about the August 2007
bumping incident and the July 2007 memorandum. See generally Pl.’s MSJ Opp’n; Pl.’s Mot.
In short, under either the majority or the minority view, the plaintiff failed to show that she
exhausted administrative remedies as to the post-2008 incidents or that she was otherwise
excused from doing so. 12
Even were the plaintiff correct on this point, this argument, similarly to her other
arguments, is merely an attempt to relitigate issues that have already been resolved, which is
improper on a Rule 59(e) motion. 13 See Exxon, 554 U.S. at 485 n.5; Messina, 439 F.3d at 759.
This argument is rejected as a ground for reconsideration.
D. The Court Correctly Applied Title VII Law To Plaintiff’s Retaliation and
Hostile Work Environment Claims
The plaintiff made little effort to distinguish the allegations underlying her Title VII
claims from those underlying her Rehabilitation Act claims, see supra note 3; see generally
Compl., but to the extent that those claims could be distinguished, they were each evaluated,
12
As for the related question of whether the plaintiff exhausted her administrative remedies as to her left-hand CTS,
the plaintiff argues that this condition, which developed in December of 2008, was administratively exhausted since
her left-hand CTS was “like or related to” the issues raised in her 2007 EEO Complaint pertaining to her right-hand
CTS. Pl.’s Mot. at 12. The plaintiff did not raise this argument previously and, thus, this argument is waived.
Patton Boggs LLP, 683 F.3d at 403. Even were it not waived, the argument is untenable, since the right-hand CTS
claim that was exhausted referred only to events that occurred in 2007, well before the plaintiff suffered any left-
hand CTS symptoms. Pl.’s Mot. at 12 (noting plaintiff’s left-hand CTS “developed in December 2008”).
Consequently, the plaintiff’s left-hand CTS was never administratively exhausted, and the plaintiff presented no
evidence that she even attempted to exhaust administratively this newly claimed disability that arose eighteen
months after her properly exhausted claim regarding her right-hand CTS. Smith, 2015 WL 2265100, at *19.
13
If the Court were to consider the unexhausted claims, the outcome would not change. None of the additional
alleged incidents discussed by the plaintiff are anything more than the “immaterial slights” and “workplace
disagreements” that “are not actionable under” civil rights laws. See Baird v. Gotbaum, 2015 WL 4079546, at *4
(D.C. Cir. July 7, 2015) (internal quotation marks and citations omitted). Although the plaintiff may “feel singled
out” because of her past history with the defendant, Pl.’s MSJ Opp’n at 20, this subjective feeling is not sufficient
under the objective test for a hostile work environment or for retaliation to raise the plaintiff’s complaints to those
actionable under the Rehabilitation Act.
21
both individually and in the totality of the circumstances, in the Mem. Op., Smith, 2015 WL
2265100, at *20–23. The plaintiff disagrees with the assessment in the Mem. Op. of the
plaintiff’s Title VII retaliation claims as not raising a colorable claim of an adverse employment
action, Pl.’s Mot. at 19–21, and the finding that the plaintiff’s allegations were insufficient to
raise a hostile work environment claim, id. at 13–19. The plaintiff’s disagreement, unsupported
by any new evidence, change in law, or evidence of clear error, is insufficient to warrant a
reconsideration of the decision.
The plaintiff argues that the Court improperly found that the plaintiff had failed to allege
any adverse employment action colorable as a Title VII retaliation action. Pl.’s Mot. at 19–20.
The plaintiff, not the Court, is mistaken. The Court held that all of the actions alleged by the
plaintiff, taken as true, would not meet the objective standard required to “dissuade[] a
reasonable worker from making or supporting a charge of discrimination,” Smith, 2015 WL
2265100, at *23, as required for an actionable retaliation claim, Burlington N. & Santa Fe Ry.
Co. v. White, 548 U.S. 53, 68 (2006). As the Court noted, “the plaintiff may have been upset by
some of the incidents that occurred between 2007 and 2009,” but “[u]nder an objective standard,
none of the plaintiff’s allegations rise to the level of an adverse action.” Smith, 2015 WL
2265100, at *23.
Once again, the plaintiff’s argument is not legally colorable and was thoroughly
addressed in initial summary judgment briefing. Def.’s MSJ Mem. at 13–20; Pl.’s MSJ Opp’n at
26–32. Thus, the plaintiff’s instant motion for reconsideration amounts to an attempt to relitigate
a lost argument. See Exxon, 554 U.S. at 485 n.5; Messina, 439 F.3d at 759. This argument is
rejected as a ground for reconsideration.
22
Finally, the plaintiff’s argument that the Court failed to consider her allegations regarding
a hostile work environment in the totality of the circumstances is belied by the decision.
Specifically, as the plaintiff concedes, Pl.’s Mot. at 13, the Court recognized that “hostile work
environment claims must be examined in light of the totality of the circumstances,” and found
that the plaintiff had “failed to provide admissible evidence of any discriminatory actions as
support for her allegations.” Smith, 2015 WL 2265100, at *22. Upon detailed examination of
the plaintiff’s accumulated allegations underlying her race discrimination claim, the Court did
consider the events in the totality of the circumstances and found no causal link between the
hostile work environment claims and the plaintiff’s race. See id. It also found that, under the
required objective standard, there were no “tangible workplace consequences” that could
“support a hostile work environment claim on summary judgment,” and that the plaintiff
presented no colorable “evidence from which a reasonable jury could infer that she was
subjected to a hostile work environment on the basis of her race.” Id. Indeed, the D.C. Circuit
recently reaffirmed that even a large number of “objectively immaterial . . . allegations” do not
create a hostile work environment. Baird v. Gotbaum, 2015 WL 4079546, at *4–5 (D.C. Cir.
July 7, 2015). None of the events complained of by the plaintiff rise above the “petty insults,
vindictive behavior, and angry recriminations” that courts have held, repeatedly, do not
constitute actionable Title VII claims. Id. at *4 (quoting Brooks v. Grundmann, 748 F.3d 1273,
1277–78 (D.C. Cir. 2014)). Her argument is, therefore, rejected as a ground for reconsideration.
* * *
To sum up, most of the plaintiff’s arguments amount to improper attempts to relitigate
issues already decided by this Court and, therefore, constitute improper grounds on which to
grant a Rule 59(e) motion. Moreover, in light of the D.C. Circuit’s opinion in Baird, the
23
plaintiff’s litany of “immaterial slights” is precisely the type of “long list of trivial incidents” that
“is no more a hostile work environment than a pile of feathers is a crushing weight.” Baird,
2015 WL 4079546, at *4; see also Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 577 (D.C. Cir.
2013).
IV. CONCLUSION
The decision whether to grant a Rule 59(e) motion is left to the sound discretion of the
District Court and is reviewed only for abuse of that discretion. Mohammadi, 782 F.3d at 17;
Dyson, 710 F.3d at 420. Plaintiffs seeking reconsideration based on clear error must, therefore,
meet a very high bar. The plaintiff has failed to clear that bar, and has presented no other new
evidence or asserted a change in law to alter the Court’s decision. Consequently, the plaintiff’s
motion is denied.
An Order consistent with this Memorandum Opinion will issue contemporaneously.
Digitally signed by Judge Beryl
A. Howell
DN: cn=Judge Beryl A. Howell,
o=United States District Court,
ou=District of Columbia,
email=Howell_Chambers@dcd.
uscourts.gov, c=US
Date: 2015.07.15 17:25:22 -04'00'
Date: July 15, 2015 __________________________
BERYL A. HOWELL
United States District Judge
24