Toomer v. Panetta ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MIRLIN S. TOOMER
Plaintiff,
v. No. 11-cv-2216 (EGS)
MARK T. ESPER, 1 in his official
capacity as Secretary of
Defense,
Defendant.
MEMORANDUM OPINION
Plaintiff Mirlin S. Toomer (“Ms. Toomer”), an African-
American woman and a former employee of the United States
Department of Defense’s National Geospatial-Intelligence Agency
(“NGA”), brought this action against the United States Secretary
of Defense (the “Secretary”) under Title VII of the Civil Rights
Act (“Title VII”), 42 U.S.C. § 2000e, et seq., and the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et
seq. On July 19, 2017, this Court issued a Memorandum Opinion
and separate Order adopting Magistrate Judge G. Michael Harvey’s
Report and Recommendation (“R & R”), and granting summary
judgment in favor of the Secretary. See Toomer v. Mattis
(“Toomer II”), 266 F. Supp. 3d 184, 190 (D.D.C. 2017); see also
1 Secretary Esper has been automatically substituted as the
defendant in this case. See Fed. R. Civ. P. 25(d).
Toomer v. Carter (“Toomer I”), No. 11-cv-2216, 2016 WL 9344023,
at *1 (D.D.C. Mar. 24, 2016).
Pending before the Court is Ms. Toomer’s Motion for Relief
from Judgment pursuant to Federal Rule of Civil Procedure 60(b).
Upon careful consideration of the motion, the response and reply
thereto, the applicable law, and the entire record herein, the
Court DENIES Ms. Toomer’s Motion for Relief from Judgment.
I. Background
The Court assumes the parties’ familiarity with the
background in this case, which is set forth in greater detail in
the prior opinions. See Toomer II, 266 F. Supp. 3d at 191
(incorporating by reference Magistrate Judge Harvey’s thorough
recitation of the facts); see also Toomer I, 2016 WL 9344023, at
*1-*11. The Court will briefly summarize the facts relevant to
the instant motion, and then set forth the procedural
background.
A. Factual Background
Ms. Toomer, an African-American female over the age of
forty, worked as an Imagery Analyst at NGA. Toomer I, 2016 WL
9344023, at *4. In January 2010, Ms. Toomer sponsored Matthew
Esteves (“Mr. Esteves”), a white male, who was a new NGA
employee. Id. Diana Stiger (“Ms. Stiger”), a white female,
supervised them in her role as NGA’s branch chief. Id.
Ms. Toomer referred to her mentee, Mr. Esteves, as “Pumpkin.”
2
Toomer II, 266 F. Supp. 3d at 202 (Ms. Toomer to Mr. Esteves:
“If you continue to ignore me then I am going to come over there
an[d] smooch you until you acknowledge me!”).
As their friendly mentor-mentee relationship soured,
Ms. Toomer began the process of filing a complaint with the
Equal Employment Opportunity (“EEO”) office in May 2010. Toomer
I, 2016 WL 9344023, at *4. On May 14, 2010, Ms. Toomer lodged an
informal discrimination claim with Ms. Stiger, alleging that
Mr. Esteves called her names and threatened to cut her hair. Id.
Ms. Stiger’s investigation revealed that Mr. Esteves called
Ms. Toomer a “dummy,” and that Ms. Toomer engaged in the banter.
Id. Later, Ms. Toomer voluntarily withdrew her claim. Id. And
Ms. Stiger issued a letter of caution to Mr. Esteves, requiring
him to attend respect-in-the-workplace training. Id. at *5.
Mr. Esteves attended the training. Id. Based upon the human
resources department’s recommendation and Ms. Toomer’s failure
to professionally communicate with her colleagues, Ms. Stiger
also required Ms. Toomer to attend a respect-in-the-workplace
training course. Id. Ms. Toomer failed to do so. Id.
In May 2010, Ms. Toomer’s mid-year performance review
became available on NGA’s human resources computer software. Id.
at *4. Ms. Toomer’s review, which was prepared by Ms. Stiger in
early 2010, identified several performance deficiencies, and it
stated that a Performance Improvement Plan (“PIP”) was under
3
development to address the deficiencies. Id. Before issuing the
PIP, Ms. Stiger received complaints from Ms. Toomer’s colleagues
that Ms. Toomer was having a loud telephone conversation at her
workstation on May 17, 2010. Id. at *5. Unbeknownst to
Ms. Stiger at that time, Ms. Toomer had a loud telephone
conversation with her EEO representative on May 17, 2010
regarding her complaint about Mr. Esteves. Id. On June 17, 2010,
Ms. Stiger issued a letter of reprimand to Ms. Toomer for the
telephone conversation because employees were prohibited from
having loud, disruptive conversations. Id.
On June 3, 2010, Ms. Toomer took unscheduled leave without
Ms. Stiger’s approval. Id. While Ms. Toomer contacted another
supervisor regarding her absence, Ms. Toomer failed to follow
the agency’s policy requiring her to contact Ms. Stiger or
leaving her a voicemail message. Id. A record of Ms. Toomer’s
leave shows that it was approved, and that Ms. Stiger reiterated
the sick-leave policy in the record. Id. In response, Ms. Toomer
alleged that a white male employee was not disciplined for a
similar violation. Id. When Ms. Stiger issued a letter of
reprimand, dated June 17, 2010, to Ms. Toomer, Ms. Stiger
reiterated that Ms. Toomer was required to attend the respect-
in-the-workplace training course. Id. Because Ms. Toomer refused
to attend the course, Ms. Toomer received a one-day suspension
for insubordination. Id.
4
On June 8, 2010, Ms. Toomer approached Ms. Stiger to
request the removal of an action figure, claiming that it was
offensive. Id. at *6. Representing the mythical creature from
the wild, the action figure was a “Bigfoot” doll. Id. at *5.
“The action figure was brown in color, made of hard plastic, had
reticulating arms and legs, had fur engraved in the plastic . .
., and was approximately six to eight inches in length.” Id. The
doll was sold in a box bearing the name “Bigfoot” in large
letters, and it entered NGA as part of a holiday gift exchange
in either December 2008 or December 2009. Id. One NGA employee—a
white male with a full beard whose nickname was “Bigfoot”—
possessed the action figure until his departure from NGA. Id.
But it remained on display in various positions within NGA,
including on the top of a cubicle cabinet inside the box and
later tangled in web-like strings on a cabinet above the desk of
one of Ms. Toomer’s colleagues. Id. at *6.
Between June 8, 2010 and June 23, 2010, the “Bigfoot” doll
was tightly wrapped—as if mummified—by a thin white cord from
its ankles to its chest, with additional strands wrapped around
its neck and arms. Toomer II, 266 F. Supp. 3d at 194. And the
doll hung in the air from a cardboard panel on a cabinet above
the desk of Tom Ryan (“Mr. Ryan”), one of Ms. Toomer’s
colleagues. Toomer I, 2016 WL 9344023, at *6. The panel
resembled a men’s bathroom door, which “was created in silent
5
protest of the perennially malfunctioning men’s bathroom in the
office.” Id. In response to Ms. Toomer’s request for removal of
the “Bigfoot” doll, Ms. Stiger allegedly stated: “It is not
offensive to me and it is not a monkey. It is an ape. You don’t
know the difference? Do you think of yourself as a monkey?” Id.
But Ms. Stiger denied that conversation. Id.
On June 23, 2010, Ms. Toomer notified NGA’s security team,
and a security officer took photographs of the doll. Id. at *7.
Ms. Toomer sent a letter, dated July 10, 2010, to an EEO
counselor, raising the June 17, 2010 letter of reprimand and the
issue of the “Bigfoot” doll. Id. By June 30, 2010, Ms. Stiger
had completed Ms. Toomer’s PIP. Id. at *8. Ms. Toomer was then
reassigned to a different branch within NGA under the direction
of a different supervisor. Id. In turn, the PIP completed by
Ms. Stiger was no longer in effect because Ms. Toomer was no
longer under Ms. Stiger’s supervision. Id.
On September 9, 2010, Ms. Toomer inadvertently received an
e-mail intended for NGA’s senior-level management with an
attached spreadsheet containing performance ratings for NGA
employees. Id. The sender informed Ms. Toomer that the e-mail
contained sensitive and confidential personal information,
consisting of materials that were protected under the Privacy
Act. Id. On the same day, the deputy director, Mark Dial
(“Mr. Dial”), instructed Ms. Toomer to permanently delete the e-
6
mail and destroy any hard copies. Id. Ms. Toomer, however,
refused to do so. Id.
Mr. Dial then met with Ms. Toomer, reiterating that she
must delete the e-mail. Id. Ms. Toomer claimed that Mr. Dial
exhibited disrespectful behavior during the meeting, including:
(1) yelling at her to shut the door and sit down;
(2) threatening to terminate her employment; and (3) slamming
his hands on the table. Toomer II, 266 F. Supp. 3d at 199.
Instead of deleting the e-mail, Ms. Toomer forwarded to a
colleague the e-mail that contained the Privacy Act materials,
and the colleague printed two hard copies for Ms. Toomer. Toomer
I, 2016 WL 9344023, at *8. Ms. Toomer took the hard copies from
NGA to her home. Id.
From September 10, 2010, to September 21, 2010, Ms. Toomer
did not report to work, and she did so without authorization.
Id. at *8-*9. Mr. Dial sent a memorandum to Ms. Toomer’s home
address on September 14, 2010 with certain directives:
(1) directing her to return to work with all hard copies of the
Privacy Act materials; (2) informing her of the continuing
Privacy Act violation; and (3) warning her that failure to
comply with his directives could result in termination. Id. at
*8. Ms. Toomer asserted claims in a letter, dated September 13,
2010, to an EEO counselor regarding the reprimand letter, doll,
and the denial of training. Id. at *9. Meanwhile, after
7
receiving Mr. Dial’s September 14, 2010 memorandum, Ms. Toomer
spoke with him over the phone rather than returning to work on
September 17, 2010. Id. Eventually, Ms. Toomer returned to work.
Id.
On September 22, 2010, Ms. Toomer briefly met with Mr. Dial
and a human resources representative, Tom Guercio
(“Mr. Guercio”), in Mr. Dial’s office about the Privacy Act
breach. Id. Ms. Toomer demanded that security personnel attend
the meeting. Id. After approximately two minutes, Ms. Toomer
decided to leave the meeting due to the absence of security
personnel. Id. According to Ms. Toomer, Mr. Dial and Mr. Guercio
ordered her to sit down, and Mr. Dial blocked the door as she
tried to exit his office. Id. Ms. Toomer testified that
Mr. Guercio grabbed her hand and bent her arm back when she put
her hand on the doorknob. Id. Ms. Toomer asserted additional
allegations: (1) she screamed; (2) Mr. Guercio released her;
(3) they exited the office; (4) Mr. Dial demanded her telephone
number; (5) Mr. Dial told her that she would be placed on
administrative leave; and (6) she was escorted out of the
building. Id.
In October 2010, Ms. Toomer submitted a formal EEO
complaint. Id. at *10. Months later, on February 28, 2011, NGA
issued Ms. Toomer a Notice of Proposed Removal. Id. For the
removal process, the deciding official, David White
8
(“Mr. White”), afforded Ms. Toomer with the opportunity for oral
and written submissions. Def.’s Decl. of Barbara Ritter (“Ritter
Decl.”), ECF No. 68-13 at 27. 2 And NGA received Ms. Toomer’s
response on May 3, 2011. Id.
On June 30, 2011, NGA terminated Ms. Toomer’s employment.
Toomer I, 2016 WL 9344023, at *10. Mr. White issued the final
decision, explaining that he terminated Ms. Toomer because she
repeatedly refused to: (1) delete Privacy Act materials that had
been inadvertently e-mailed to her; and (2) destroy or return
the hard copies of those materials. Id. Mr. White further cited
Ms. Toomer’s absence without leave on multiple occasions during
the time that her supervisors had attempted to resolve the
Privacy Act breach. Id. Mr. White rendered the final decision
based on Ms. Toomer’s employment record and meetings with agency
officials, including meetings with Mr. Dial and Mr. Guercio. Id.
Following her termination, Ms. Toomer submitted amendments to
her formal EEO complaint in 2011. Id.
B. Procedural Background
1. Present Lawsuit
On December 14, 2011, Ms. Toomer filed the instant action
under Title VII and ADEA, asserting four claims: (1) racially
2 When citing electronic filings throughout this Opinion, the
Court cites to the ECF page number, not the page number of the
filed document.
9
hostile work environment (“Count I”); (2) retaliation (“Count
II”); (3) racial discrimination (“Count III”); and (4) age
discrimination (“Count IV”). Id. at *10-*11. Following the close
of discovery, the Secretary moved for summary judgment on June
5, 2014. Id. at *11. Thereafter, Ms. Toomer filed a motion for
partial summary judgment as to Count I and for spoliation
sanctions. Id. On February 23, 2015, this Court referred the
case to Magistrate Judge Harvey for the R & R. Id. Ms. Toomer
then filed a motion for a hearing on the Secretary’s alleged
spoliation of evidence (i.e. the action figure). Id.
On March 24, 2016, Magistrate Judge Harvey issued the
R & R, recommending that this Court grant the Secretary’s motion
for summary judgment, deny Ms. Toomer’s motion for partial
summary judgment, deny her motion for spoliation sanctions, and
deny her motion for a hearing on the alleged spoliation of
evidence. Id. at *33. Ms. Toomer filed objections to the R & R—
specifically, objecting to: (1) the R & R’s findings as to her
hostile work environment and retaliation claims (Counts I and
II); and (2) the recommendation to deny her motions for
spoliation sanctions and a hearing. See Toomer II, 266 F. Supp.
3d at 192; see also Pl.’s Objs., ECF No. 99 at 11, 21, 34, 36,
41. Ms. Toomer did not raise objections to the R & R with
respect to her claims for discrimination based on race and age,
thereby waiving review of Magistrate Judge Harvey’s conclusions
10
as to Counts III and IV. See Toomer II, 266 F. Supp. 3d at 191
(district court may review only those issues that the parties
have raised in their objections to the R & R); see also LCvR
72.3(b).
2. The Court’s Prior Ruling
On July 19, 2017, this Court overruled Ms. Toomer’s
objections to the R & R and adopted the R & R in its entirety.
Mem. Op., ECF No. 105 at 1-2, 44-45. On the same day, the Court
entered a final, appealable Order (“July 19, 2017 Final Order”).
Order, ECF No. 104 at 1-2. The Court held that the Secretary was
entitled to summary judgment. Toomer II, 266 F. Supp. 3d at 192-
205. First, the Court found that Ms. Toomer failed to prove a
racially hostile work environment claim because her proffered
facts—the display of the action figure, Ms. Stiger’s alleged
comments to Ms. Toomer regarding the action figure, and certain
disciplinary actions taken against Ms. Toomer—were not
sufficiently severe or pervasive to alter the conditions of her
employment or create an abusive work environment. Id. at 192-97.
Next, the Court found that Ms. Toomer did not establish a
retaliation claim because the alleged retaliatory actions—
(1) Mr. Dial’s alleged verbal assault; (2) Mr. Guercio’s alleged
physical assault; (3) Ms. Stiger’s alleged threat; (4) the
reprimand for Ms. Toomer’s disruptive phone call; (5) the order
for Ms. Toomer to attend the respect-in-the-workplace training
11
session and the one-day suspension for her failure to attend
that session; (6) the negative performance review and the letter
of reprimand; and (7) the termination—were either not materially
adverse employment actions or justified by the Secretary’s
proffered legitimate, non-retaliatory reasons that Ms. Toomer
failed to rebut as pretext for retaliation. Id. at 197-205.
The Court granted summary judgment in favor of the
Secretary as to Ms. Toomer’s retaliatory hostile work
environment claim, reasoning that Ms. Toomer’s list of alleged
grievances failed to meet the threshold for a retaliatory
hostile work environment given that the alleged retaliatory
incidents involved “different people doing different things in
different contexts.” Id. at 205 (quoting Baird v. Gotbaum, 792
F.3d 166, 171 (D.C. Cir. 2015)). Finally, the Court found that
sanctions for spoliation of evidence—the action figure—and a
hearing regarding the same were unwarranted for two reasons:
(1) the action figure was recovered, located, and presented to
Ms. Toomer for inspection during the litigation; and (2) the
photographic evidence in the record depicted how the action
figure was displayed to Ms. Toomer between June 8, 2010, and
June 23, 2010. Id. at 206.
Ms. Toomer did not file an appeal with the United States
Court of Appeals for the District of Columbia Circuit (“D.C.
Circuit”). See generally Docket for Civ. Action No. 11-2216.
12
3. Ms. Toomer’s Motion
On July 18, 2018, Ms. Toomer filed a motion for relief from
the July 19, 2017 Final Order pursuant to Rule 60(b)(1) and (6).
See Pl.’s Mot. for Relief (“Pl.’s Mot.”), ECF No. 106 at 1; see
also Pl.’s Mem. of P. & A. in Supp. of Pl.’s Mot. (“Pl.’s
Mem.”), ECF No. 106 at 3-26. Thereafter, the Secretary filed his
opposition brief. See generally Def.’s Opp’n, ECF No. 108.
Ms. Toomer then filed her reply brief. See generally Pl.’s
Reply, ECF No. 109. The motion is ripe and ready for the Court’s
adjudication.
II. Legal Standard
Pursuant to Federal Rule of Civil Procedure 60(b), the
court, “[o]n motion and just terms, . . . may relieve a party or
its legal representative from a final judgment, order, or
proceeding” on one of six enumerated grounds. Fed. R. Civ. P.
60(b). “In considering a Rule 60(b) motion, the district court
must strike a delicate balance between the sanctity of final
judgments . . . and the incessant command of a court’s
conscience that justice be done in light of all the facts.” PETA
v. HHS, 901 F.3d 343, 354-55 (D.C. Cir. 2018) (citation and
internal quotation marks omitted). “[T]he decision to grant or
deny a [R]ule 60(b) motion is committed to the discretion of the
[d]istrict [c]ourt[.]” United Mine Workers of Am. 1974 Pension
13
v. Pittston Co., 984 F.2d 469, 476 (D.C. Cir. 1993).
The movant bears “the burden of establishing that its
prerequisites are satisfied.” Owens v. Republic of Sudan, 864
F.3d 751, 819 (D.C. Cir. 2017) (quoting Gates v. Syrian Arab
Republic, 646 F.3d 1, 5 (D.C. Cir. 2011)). A party cannot invoke
Rule 60(b) “simply to rescue a litigant from strategic choices
that later turn out to be improvident.” Good Luck Nursing Home,
Inc. v. Harris, 636 F.2d 572, 577 (D.C. Cir. 1980); accord
Ackermann v. United States, 340 U.S. 193, 198 (1950) (“There
must be an end to litigation someday, and free, calculated,
deliberate choices are not to be relieved from.”).
III. Analysis
In moving for relief from the Court’s July 19, 2017 Final
Order, Ms. Toomer relies upon Rule 60(b)(1) and Rule 60(b)(6).
Pl.’s Mem., ECF No. 106 at 11, 16, 20, 24. 3 Ms. Toomer contends
that she has identified two grounds for relief: (1) “a clear
error in the [C]ourt’s legal reasoning” under Rule 60(b)(1); and
3 Ms. Toomer properly moves for relief from the Court’s July 19,
2017 Final Order under Rule 60(b). Although the Court did not
issue a final judgment as a separate document pursuant to
Federal Rule of Civil Procedure 58, the Court’s July 19, 2017
Final Order constitutes a final judgment because “when a
district court enters an order that would otherwise constitute a
final judgment but fails to set it forth in a separate document
as required by Rule 58, the judgment is nevertheless considered
final 150 days later.” Goddard v. Serv. Employees Int’l Union
Local 32BJ, 310 F.R.D. 190, 192 (D.D.C. 2015) (citing Cambridge
Holdings Grp., Inc. v. Fed. Ins. Co., 489 F.3d 1356, 1363-64
(D.C. Cir. 2007)).
14
(2) “the existence of extraordinary circumstances” under Rule
60(b)(6). Pl.’s Reply, ECF No. 109 at 1. The Secretary
disagrees, arguing that Ms. Toomer’s motion is an attempt to re-
litigate the issues that this Court resolved in Toomer II.
Def.’s Opp’n, ECF No. 108 at 3. According to the Secretary,
Ms. Toomer’s motion “rests entirely on her disagreement with
this Court’s legal reasoning in applying the undisputed material
facts, including photographic evidence, to her claims.” Id.
The Court analyzes the parties’ arguments in turn,
concluding that Ms. Toomer fails to meet her burden of
demonstrating that she is entitled to relief under Rule 60(b)(1)
and Rule 60(b)(6).
A. Ms. Toomer Is Not Entitled to Relief Under Rule
60(b)(1)
Rule 60(b)(1) allows the Court to grant post-judgment
relief for “mistake, inadvertence, surprise, or excusable
neglect.” Fed. R. Civ. P. 60(b)(1). Ms. Toomer does not deny
that her motion fails to articulate any mistake, inadvertence,
surprise, or excusable neglect that entitles her to relief under
Rule 60(b)(1). See Pl.’s Reply, ECF No. 109 at 1; see also
Def.’s Opp’n, ECF No. 108 at 3.
Ms. Toomer’s motion is premised on the argument that this
Court “committed clear legal error” when ruling: (1) “‘none of
Ms. Toomer’s proffered facts, taken alone or in combination,
15
suffices to make out a claim of a racially hostile work
environment.’” Pl.’s Mem., ECF No. 106 at 11 (quoting Toomer II,
266 F. Supp. 3d at 193); and (2) “as a matter of law that each
allegedly retaliatory action by [the Secretary] either did not
constitute an adverse employment action or was justified by a
legitimate, non-discriminatory reason,” id. at 20. And
Ms. Toomer argues that the issue of “whether a district court’s
legal error . . . is redressable under Rule 60(b)(1) presents an
open question within this Circuit.” Pl.’s Reply, ECF No. 109 at
1 (emphasis added).
“Standing alone, a party’s disagreement with a district
court’s legal reasoning or analysis is rarely, if ever, a basis
for relief under Rule 60(b)(1).” Muñoz v. Bd. of Trs. of Univ.
of D.C., 730 F. Supp. 2d 62, 67 (D.D.C. 2010). “Federal courts
are split over whether parties may use Rule 60(b) motions to
address alleged mistakes of legal reasoning.” Jordan v. U.S.
Dep’t of Labor, 331 F.R.D. 444, 449 (D.D.C. 2019), aff’d,
No. 19-5201, 2020 WL 283003 (D.C. Cir. Jan. 16, 2020). “Many
federal appellate courts do not permit parties to invoke Rule
60(b)(1) to assert that the district court erred in its legal
analysis, reasoning that an appeal is the more appropriate
method of challenging alleged legal mistakes by the court.”
Avila v. Dailey, 404 F. Supp. 3d 15, 23 (D.D.C. 2019) (citing
cases). And the courts that allow parties to raise alleged
16
“legal errors” in Rule 60(b)(1) motions involve “circumstances
under which such errors are cognizable” and “usually very
limited, such as an intervening change in law.” Muñoz, 730 F.
Supp. 2d at 67.
Although the D.C. Circuit has “declined to decide whether
errors in legal reasoning may be corrected by Rule 60(b)(1)
motions,” Computer Prof’ls for Soc. Responsibility v. U.S.
Secret Serv., 72 F.3d 897, 903 (D.C. Cir. 1996), the case law in
this District indicates that Rule 60(b)(1) applies in two
situations: (1) a district court committed “an ‘obvious error,’
such as basing its legal reasoning on case law that it failed to
realize had recently been overturned,” Muñoz, 730 F. Supp. 2d at
67 (citing D.C. Fed’n of Civic Ass’ns v. Volpe, 520 F.2d 451,
451–53 (D.C. Cir. 1975)); and (2) “in the very limited situation
when the controlling law of the [C]ircuit changed between the
time of the court’s judgment and the Rule 60 motion,” Bestor v.
FBI, 539 F. Supp. 2d 324, 328 (D.D.C. 2008).
None of those circumstances are present here. The Secretary
argues—and the Court agrees—that Ms. Toomer fails to demonstrate
any error in this Court’s legal reasoning or show that this
Court committed an “obvious error” in granting summary judgment
in favor of the Secretary. Def.’s Opp’n, ECF No. 108 at 4. Nor
does Ms. Toomer assert a change in controlling law between the
entry of the July 19, 2017 Final Order and the filing of her
17
Rule 60(b) motion. See Pl.’s Mem., ECF No. 106 at 11-19, 20-24;
see also Pl.’s Reply, ECF No. 109 at 5-12. Rather, Ms. Toomer
advances the arguments previously made in her motion for partial
summary judgment that were rejected in Toomer I and Toomer II.
Compare Pl.’s Mem., ECF No. 106 at 9-19, with Pl.’s Mem. in
Supp. of Pl.’s Mot. for Partial Summ. J., ECF No. 70 at 7-16.
Relief under Rule 60(b)(1) is unwarranted where a plaintiff,
like Ms. Toomer, points to no “obvious error” and “merely
recycles her twice-rejected arguments[.]” Douglas v. D.C. Hous.
Auth., 306 F.R.D. 1, 5–6 (D.D.C. 2014).
1. Hostile Work Environment Claim
The Court turns to Ms. Toomer’s arguments for post-judgment
relief with respect to her racially hostile work environment
claim. Ms. Toomer argues that “[t]aken either singly or in
combination, the display of the lynched black monkey figure that
was hung near [her] workstation, and Ms. Stiger’s racially
offensive query as to whether [Ms.] Toomer thought of herself
‘as a monkey’ after [Ms.] Toomer complained about the lynched
monkey display, were sufficient to create a racially hostile
work environment.” Pl.’s Mem., ECF No. 106 at 11. The Secretary
contends that “this Court correctly determined that the alleged
conduct was not sufficiently pervasive to support a hostile work
environment claim.” Def.’s Opp’n, ECF No. 108 at 7.
18
To prevail on her hostile work environment claim,
“[Ms. Toomer] must show that [her] employer subjected [her] to
‘discriminatory intimidation, ridicule, and insult’ that is
‘sufficiently severe or pervasive to alter the conditions of
[her] employment and create an abusive working environment.’”
Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008)
(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).
In evaluating this claim, “the [C]ourt ‘looks to the totality of
the circumstances, including the frequency of the discriminatory
conduct, its severity, its offensiveness, and whether it
interferes with an employee’s work performance.’” Ayissi-Etoh v.
Fannie Mae, 712 F.3d 572, 577 (D.C. Cir. 2013) (per curiam)
(quoting Baloch, 550 F.3d at 1201).
In applying this framework, the Court concluded that
Ms. Toomer failed to sustain a hostile work environment claim.
Toomer II, 266 F. Supp. 3d at 192-197. Ms. Toomer argues that
the Court erred in ruling that her proffered facts failed to
demonstrate a racially hostile work environment. See Pl.’s Mem.,
ECF No. 106 at 11-16. In Ms. Toomer’s subjective view, the
action figure constitutes a racially-insensitive “lynched monkey
display.” Pl.’s Mem., ECF No. 106 at 11; see also Pl.’s Reply,
ECF No. 109 at 7. As the Secretary correctly notes, this Court
in Toomer II found that Ms. Toomer’s characterization of the
action figure was unsupported by the summary judgment record.
19
See Gov’t’s Opp’n, ECF No. 108 at 5.
This Court recognizes that the nation’s shameful history of
negative racial stereotypes is deeply embedded in American
society. See Burkes v. Holder, 953 F. Supp. 2d 167, 179 (D.D.C.
2013) (Sullivan, J.). And the Court cannot ignore that those
stereotypes persist in present times with characterizations and
depictions of African-Americans as monkeys, apes, beasts, and
animals. 4 Ms. Toomer’s argument—that this Court “committed a
clear legal error when it failed to place the subject display of
the lynched monkey figure in the correct historical context,”
Pl.’s Reply, ECF No. 109 at 8—is unavailing. Ms. Toomer’s own
words belie her assertion. See Pl.’s Mem., ECF No. 106 at 11
(“[T]his Court has previously recognized that monkey and noose
imagery ‘are powerful symbols of racism and violence against
African Americans.’” (quoting Burkes, 953 F. Supp. 2d at 179)).
In Toomer II, this Court expressly recognized “in the past
that it is reasonable to conclude ‘that the use of monkey
imagery is intended as a racial insult where no benign
explanation for the imagery appears.’” 266 F. Supp. 3d at 195
(quoting Burkes, 953 F. Supp. 2d at 179). Based on the summary
4 See Kristine Phillips & Lindsey Bever, She Lost Her Job After
Calling Michelle Obama an ‘Ape in heels.’ Now She’s Returning to
Work, Wash. Post (Dec. 13, 2016)
https://www.washingtonpost.com/news/post-
nation/wp/2016/12/13/she-lost-her-job-after-calling-michelle-
obama-an-ape-in-heels-now-shes-returning-to-work/.
20
judgment record in this case, however, the Court agreed with
Magistrate Judge Harvey’s finding that the action figure—“a
monkey-like, ape-like, or Bigfoot-like action figure”—was
wrapped in the white cord or rope in a manner that could not be
fairly described as hanging from a noose. Id. at 194. There is
no noose at issue in this case, and there is a benign
explanation for the action figure. Id. at 195. It is undisputed
that a white male colleague was jokingly referred to as
“Bigfoot.” Id. Relying on the undisputed photographic evidence,
this Court found that a “reasonable observer of the images that
Ms. Toomer has confirmed show the action figure displayed as she
observed it in her workplace would not describe that action
figure as being hung in a noose.” Id. (emphasis added).
Next, this Court found that Ms. Stiger’s alleged statement
in response to Ms. Toomer’s complaint of the action figure—“an
unambiguously non-racial workplace display”—fails to rise to the
requisite level of severity to constitute a racially hostile
work environment. Id. at 196. To support her position,
Ms. Toomer relies on the D.C. Circuit’s decision in Ayissi-Etoh
v. Fannie Mae, 712 F.3d 572 (D.C. Cir. 2013) for the proposition
that “the single instance of Ms. Stiger asking [Ms.] Toomer
whether [she] thought of herself as a monkey was sufficient to
create a hostile work environment.” Pl.’s Mem., ECF No. 106 at
15.
21
The D.C. Circuit recognized that the “single incident [of
using the n-word] might well have been sufficient to establish a
hostile work environment.” Ayissi-Etoh, 712 F.3d at 577
(emphasis added); id. at 580 (Kavanaugh, J., concurring) (“[I]n
my view, being called the n-word by a supervisor—as [plaintiff]
alleges happened to him—suffices by itself to establish a
racially hostile work environment.”). As explained in Toomer II,
the D.C. Circuit in Ayissi-Etoh suggested, without holding, that
“the use of an unambiguously racial epithet such as ‘nigger’ by
a supervisor” could alone be sufficient to establish a hostile
work environment. Toomer II, 266 F. Supp. 3d at 196 (emphasis
added; internal quotation marks omitted) (quoting Ayissi–Etoh,
712 F.3d at 577). Nonetheless, Ayissi-Etoh is distinguishable
from this case.
In Ayissi-Etoh, an African-American employee brought
various claims against his employer, including a hostile work
environment claim under 42 U.S.C. § 1981. 712 F.3d at 574, 577. 5
The plaintiff alleged that, after receiving a promotion, but
being denied a salary increase, his manager told him: “For a
young black man smart like you, we are happy to have your
expertise; I think I’m already paying you a lot of money.” Id.
5 Courts evaluate hostile work environment claims under Section
1981 and Title VII using the same analytical framework. See
Ayissi–Etoh, 712 F.3d at 576.
22
at 574. The plaintiff also alleged that the vice president, on a
separate occasion, shouted at him to “get out of my office
nigger.” Id. The plaintiff filed an EEOC complaint, his
supervisor allegedly instructed him to either “drop the racial
discrimination claim or be fired,” and the plaintiff was later
terminated. Id.
The D.C. Circuit reversed the district court’s grant of
summary judgment in favor of the employer on the hostile work
environment claim, id. at 578, concluding that “a reasonable
jury could find [the manager’s] and [vice president’s] behavior
sufficiently severe or pervasive as to create a hostile work
environment,” id. at 577. The D.C. Circuit reasoned that the use
of the n-word alone might have been sufficient to establish a
hostile work environment claim, but the plaintiff alleged more
than the “deeply offensive racial epithet.” Id. The plaintiff
also alleged: (1) the “young black man” statement; (2) the
plaintiff “having to continue working with [the manager] for
nearly three months, until [the manager] was ultimately fired”;
and (3) the plaintiff being forced to continue working with the
manager “made [the plaintiff] ill and caused him to miss work on
at least one occasion.” Id.
Here, Ms. Stiger’s alleged question to Ms. Toomer—“Do you
think of yourself as a monkey?”—is not akin to the use of the
unambiguously racial epithet by the vice president in Ayissi-
23
Etoh. As this Court previously explained, “Ms. Stiger’s
offensive question is more akin to the sort of derogatory
remarks that courts in this Circuit have deemed non-actionable
in the past.” Toomer II, 266 F. Supp. 3d at 196 (citing cases).
Relying on the principles espoused in Ayissi-Etoh, this Court
found that “Ms. Toomer has not pointed to a sufficiently
pervasive pattern of racially hostile conduct.” Id. at 197. This
Court reasoned that “a reasonable observer would not view the
action figure display as a ‘racially offensive event,’ so
Ms. Stiger’s comment—‘Do you think of yourself as a monkey?’—was
not ‘part of a pervasive pattern of hostility and ridicule’ that
is necessary to sustain a hostile work environment claim on
pervasiveness grounds.” Id. (citations omitted). And, unlike the
plaintiff in Ayissi-Etoh who was forced to continue working with
the manager, Ms. Toomer was eventually reassigned from
Ms. Stiger’s unit. Id. at 202-203. None of Ms. Toomer’s
arguments alter the Court’s legal conclusion that her proffered
facts failed to create a racially hostile work environment.
2. Retaliation Claim
The Court next considers Ms. Toomer’s argument that this
Court “committed clear legal error when it ruled as a matter of
law that each allegedly retaliatory action by Defendant either
did not constitute an adverse employment action or was justified
by a legitimate, non-discriminatory reason.” Pl.’s Mem., ECF No.
24
106 at 20. The Secretary argues that the Court’s previous ruling
“undertook a detailed discussion of the undisputed record
evidence and properly concluded that there was no basis for
[Ms. Toomer’s] retaliation claims.” Def.’s Opp’n, ECF No. 108 at
7-8. For the reasons explained below, Ms. Toomer fails to
demonstrate that this Court committed an “obvious error” because
she does not point to a single controlling decision that this
Court failed to consider in rejecting her arguments in Toomer
II. See Muñoz, 730 F. Supp. 2d at 67.
To prevail on her retaliation claim, “[Ms. Toomer] must
first establish a prima facie case of retaliation by showing
(1) that [she] engaged in statutorily protected activity;
(2) that [she] suffered a materially adverse action by [her]
employer; and (3) that a causal link connects the two.” Jones v.
Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009). If the plaintiff
establishes a prima facia case, the burden shifts to the
employer to articulate a legitimate, non-retaliatory reason for
its actions. Id. “If the employer does so, the burden-shifting
framework disappears, and a court reviewing summary judgment
looks to whether a reasonable jury could infer . . . retaliation
from all the evidence[.]” Id. (citation omitted).
The D.C. Circuit has instructed that “‘the district court
need not—and should not—decide whether the plaintiff actually
made out a prima facie case,’” but the district court should
25
determine whether “all the evidence, taken together, [is]
insufficient to support a reasonable inference of
discrimination.” Id. at 678 (quoting Brady v. Office of Sergeant
at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008)).
Viewing the evidence in the light most favorable to
Ms. Toomer and giving her the benefit of all reasonable
inferences, this Court concluded that no reasonable jury could
infer retaliation from the evidence in this case. Toomer II, 266
F. Supp. 3d at 198-205. In her Rule 60(b) motion, Ms. Toomer
repeats the same arguments that were rejected in Toomer II. See
Pl.’s Mem., ECF No. 106 at 20-24; see also Def.’s Opp’n, ECF No.
108 at 7-9. Ms. Toomer argues that she was subjected to
retaliation in a number of ways, including being ordered to
attend a respect-in-the-workplace training after she complained
to Ms. Stiger and the EEO about “Mr. Esteves’s aggressive and
sexually offensive harassment.” Pl.’s Mem., ECF No. 106 at 21.
Putting aside the fact that there are no allegations of
discrimination based on sex or gender, there is no dispute that
Ms. Toomer withdrew her harassment claim as to Mr. Esteves. See
id.; see generally Compl., ECF No. 1 at 2-16. Contrary to
Ms. Toomer’s contention that her supervisor “purposefully
intimidated [her] and dissuaded her from pursuing her EEO
complaint,” the record proves otherwise. Pl.’s Mem., ECF No. 106
at 21. This Court found that Ms. Toomer failed to offer any
26
evidence of an alleged threat by Ms. Stiger in response to her
harassment complaints as to Mr. Esteves “other than her own
self-serving assertions and that such unsupported, self-serving
assertions do not give rise to a triable issue of fact.” Toomer
II, 266 F. Supp. 3d at 200.
Ms. Toomer ignores this Court’s finding that Ms. Stiger
ordered her to attend the respect-in-the-workplace training
course, which Ms. Toomer failed to do, because “Ms. Stiger’s
assessment was that, while Ms. Toomer’s co-worker had engaged in
some inappropriate and unacceptable workplace conduct,
Ms. Toomer was ‘feeding the repartee’ with that co-worker.” Id.
at 202 (citation omitted). The Court found that Ms. Toomer
failed to rebut as pretext Ms. Stiger’s stated rationale for the
order because “undisputed record evidence confirms that
Ms. Toomer did engage in the sort of repartee with her co-worker
that would likely lead to further words and conduct
inappropriate for the workplace.” Id. And the Court found that
Ms. Toomer did not produce sufficient evidence for a reasonable
jury to find that her supervisor’s stated reason for the one-day
suspension was not a result of Ms. Toomer’s failure to attend
the training session. Id.
The Court rejects Ms. Toomer’s argument that the letter of
reprimand and negative performance review support her
retaliation claim. See Pl.’s Mem., ECF No. 106 at 21. The D.C.
27
Circuit’s decision in Baloch v. Kempthorne, 550 F.3d 1191 (D.C.
Cir. 2008) is instructive on this point. In that case, the D.C.
Circuit held that a letter of reprimand, a letter of counseling,
and an unsatisfactory performance review as alleged retaliation
for the plaintiff’s discrimination complaint did not constitute
materially adverse actions for two reasons. Baloch, 550 F.3d at
1199. First, the letter of reprimand “contained no abusive
language, but rather job-related constructive criticism, which
‘can prompt an employee to improve her performance.’” Id.
(quoting Whittaker v. N. Ill. Univ., 424 F.3d 640, 648 (7th Cir.
2005)). Second, “performance reviews typically constitute
adverse actions only when attached to financial harms” and the
plaintiff was paid at the highest step for his grade. Id.
Like the plaintiff in Baloch, Ms. Toomer did not produce
evidence demonstrating that the letter of reprimand or the
“negative performance evaluation could affect [her] position,
grade level, salary, or promotion opportunities.” Id. Under the
law of this Circuit, the letter of reprimand for Ms. Toomer’s
failure to adhere to the policies and her negative performance
review are not materially adverse employment actions. See Toomer
I, 2016 WL 9344023, at *25. Even assuming, arguendo, that those
alleged retaliatory acts were materially adverse actions,
Ms. Toomer fails to proffer sufficient evidence to rebut as
pretext her employer’s legitimate, non-retaliatory reasons. See
28
Pl.’s Mem., ECF No. 106 at 21. The issuance of the letter of
reprimand was based on Ms. Toomer’s violations of workplace
policies. Toomer II, 266 F. Supp. 3d at 202-203. The PIP
followed the negative performance review issued by Ms. Stiger,
but the PIP was no longer in effect when Ms. Toomer was
reassigned to a different branch under the direction of a
different supervisor. Id.
Ms. Toomer’s next argument—that her termination from
employment constitutes retaliation—fares no better. See Pl.’s
Mem., ECF No. 106 at 22. The Secretary proffered a legitimate,
non-retaliatory reason for Ms. Toomer’s termination when
Mr. White, the deciding official, rendered the termination
decision. Toomer II, 266 F. Supp. 3d at 203-204. According to
Mr. White, Ms. Toomer was terminated because she repeatedly
refused to delete, destroy, and return the materials protected
under the Privacy Act. Id. at 204. Because it is beyond dispute
in the summary judgment record that Ms. Toomer did not comply
with the directives regarding those materials, this Court found
that Ms. Toomer failed to demonstrate that the Secretary’s non-
retaliatory reason was pretextual. Id.
Invoking a theory of discrimination, which is commonly
referred to as the “cat’s paw theory,” 6 Ms. Toomer argues that
6 Under this theory, “if a supervisor” acting within the scope of
employment “[1] performs an act motivated by [discriminatory]
29
this Court “erroneously overlooked established law” on that
theory. Pl.’s Mem., ECF No. 106 at 23 (citation omitted); see
also Pl.’s Reply, ECF No. 109 at 11. Ms. Toomer argues that
Mr. Dial and Mr. Guercio influenced Mr. White’s termination
decision, and they were motivated by discriminatory animus in
retaliation for Ms. Toomer’s EEO complaint against them for the
alleged verbal assaults and the alleged physical attack. Pl.’s
Mem., ECF No. 106 at 23-24.
In relying on D.C. Circuit case law, this Court rejected
Ms. Toomer’s “cat’s-paw theory” because Ms. Toomer failed to
produce any evidence that Mr. Dial and Mr. Guercio were
motivated by discriminatory animus when they met with Mr. White
as part of the termination process. Toomer II, 266 F. Supp. 3d
at 204-205. Nothing in the summary judgment record demonstrates
that Mr. Dial and Mr. Guercio played a role in Mr. White’s final
determination because Mr. White “independently and individually”
made the decision. Toomer I, 2016 WL 9344023, at *10. The Court
found that Ms. Toomer failed to present any evidence that would
allow a reasonable jury to find that Mr. Dial and Mr. Guercio
infected Mr. White’s decision-making process on the basis of
animus [2] that is intended by the supervisor to cause an
adverse employment action, and [3] if that act is a proximate
cause of the ultimate employment action, then the employer is
liable.” Staub v. Proctor Hosp., 562 U.S. 411, 422 (2011)
(footnote omitted).
30
discriminatory animus or that they intended for Ms. Toomer to be
terminated because of the alleged retaliatory incidents. Toomer
II, 266 F. Supp. 3d at 205. “Because [Ms. Toomer’s] case
founders on the absence of evidence raising a reasonable
inference that [Mr. Dial and Mr. Guercio were] motivated even in
part by racial discrimination, [the Court] need not separately
analyze the causal factors.” Burley v. Nat’l Passenger Rail
Corp., 801 F.3d 290, 297 (D.C. Cir. 2015).
* * *
Insofar as a plaintiff may rely upon Rule 60(b)(1) to
challenge a prior ruling on the ground that the district court
committed “legal error,” Ms. Toomer fails to demonstrate that
this Court committed “obvious error” in Toomer II, or point to a
change in controlling law between the time of the July 19, 2017
Final Order and her Rule 60(b) motion. See, e.g., Muñoz, 730 F.
Supp. 2d at 67; Bestor, 539 F. Supp. 2d at 328. Accordingly, the
Court DENIES Ms. Toomer’s motion for relief under Rule 60(b)(1).
B. Ms. Toomer Is Not Entitled to Relief Under Rule
60(b)(6)
Finally, Ms. Toomer argues that she is entitled to post-
judgment relief under Rule 60(b)(6). See Pl.’s Mem., ECF No. 106
at 16-17, 24-25. The Secretary argues—and the Court agrees—that
Ms. Toomer’s “arguments for such relief are not based on any
independent grounds, but rather the same alleged errors that
31
form the basis for her arguments under Rule 60(b)(1).” Def.’s
Opp’n, ECF No. 108 at 10.
Rule 60(b)(6)’s catchall provision permits the Court to
relieve Ms. Toomer from the July 19, 2017 Final Order for “any
other reason” that is not prescribed in the other reasons under
Rule 60(b) only in “extraordinary circumstances.” Cohen v. Bd.
of Trs. of the Univ. of D.C., 819 F.3d 476, 485 (D.C. Cir. 2016)
(quoting Kramer v. Gates, 481 F.3d 788, 790 (D.C. Cir. 2007)).
Ms. Toomer bears the burden of demonstrating extraordinary
circumstances justifying such relief. Id. Ms. Toomer fails to do
so, however.
Ms. Toomer’s reliance on the Supreme Court’s decision in
Buck v. Davis, 137 S. Ct. 759 (2017) is misplaced. See Pl.’s
Mem., ECF No. 106 at 16-17, 24-25. In that case, the petitioner—
an African-American man—was convicted of capital murder, and a
Texas jury sentenced him to death after finding that he was
likely to commit future acts of violence under state law. Buck,
137 S. Ct. at 767. The jury based its finding on the testimony
of a psychologist that the petitioner’s attorney called to the
stand to testify that the petitioner likely would not engage in
violent conduct. Id. Although “the psychologist testified that
[the petitioner] probably would not engage in violent conduct,”
the psychologist also testified that: (1) “one of the factors
pertinent in assessing a person’s propensity for violence was
32
his race”; and (2) “[the petitioner] was statistically more
likely to act violently because he is black.” Id.
The petitioner eventually filed a federal habeas corpus
petition under 28 U.S.C. § 2254. Id. at 770. Because the
petitioner’s ineffective-assistance-of-counsel claim was
“procedurally defaulted and unreviewable,” under then-governing
law, id. at 767, the petitioner later sought relief under Rule
60(b)(6) following a change in the governing law that
established an excuse for the procedural default, id. at 778.
The Supreme Court held that relief under Rule 60(b)(6) was
available to the petitioner because he established
“extraordinary circumstances” for three main reasons. Id. First,
the petitioner “may have been sentenced to death in part because
of his race.” Id. Next, the petitioner’s ineffective-assistance-
of-counsel claim was based on race and “injure[d] not just the
defendant, but ‘the law as an institution, . . . the community
at large, and . . . the democratic ideal reflected in the
processes of our courts.’” Id. (quoting Rose v. Mitchell, 443
U.S. 545, 556 (1979)). Finally, “[t]he extraordinary nature of
[the] case [was] confirmed by” the refusal of the State of Texas
to confess error in the petitioner’s case, despite admitting the
same error in similar cases and consenting to resentencing. Id.
Unlike the petitioner in Buck, Ms. Toomer fails to present
any facts to support a finding of extraordinary circumstances in
33
this case. Ms. Toomer contends that “[t]he public’s confidence
in the judicial process is severely undermined” if the Court
permits her “to suffer the devastating effects of racial
discrimination in the workplace[.]” Pl.’s Mem., ECF No. 106 at
17. Ms. Toomer’s argument lacks support in the summary judgment
record. See Toomer II, 266 F. Supp. 3d at 197, 205-206.
Ms. Toomer’s disagreement with this Court’s prior rulings—that
she fails to establish viable retaliation and hostile work
environment claims—establishes no basis for relief under Rule
60(b)(6)’s catchall category. Accordingly, the Court DENIES
Ms. Toomer’s motion for relief under Rule 60(b)(6).
IV. Conclusion
For the reasons set forth above, the Court DENIES
Ms. Toomer’s Motion for Relief from Judgment. A separate Order
accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
May 26, 2020
34