The opinion of the court was delivered by: Deborah A. Robinson United States Magistrate Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, in a two-count complaint filed on February 10, 2000, alleged race discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. In Cont One, plaintiff alleged that defendant's denial of "assignments and career enhancing opportunities," and defendant's refusal to select her for a GS-14 branch chief position, constituted race discrimination in violation of Title VII. Complaint for Relief from Discrimination in Employment ("Complaint") ¶¶ 16-17. In Count Two, plaintiff alleged that defendant's actions in (1) refusing to select her for the branch chief position; (2) denying training and the opportunity to attend work-related events; (3) giving "false" and "negative" evaluations; (4) issuing a "contrived" disciplinary action and (5) "denying her requested reassignment" were all in retaliation for the protected activity in which she engaged. Complaint ¶¶ 18-19. Defendant, in an Answer filed on April 11, 2002, pled as affirmative defenses (1) failure to state a claim upon which relief can be granted; (2) that plaintiff's claims are barred "by applicable statute(s) of limitations"; (3) plaintiff's failure to exhaust her administrative remedies and (4) her failure to mitigate her damages. Answer at 1. *fn1 Defendant's Motion for Partial Judgment on the Pleadings - - filed April 19, 2002, one year after the April 20, 2001 close of discovery - - was stricken from the record. April 29, 2002 Order (Docket No. 45) at 1.
A jury trial commenced on May 6, 2002. On May 16, 2002, the jury found in favor of defendant with respect to plaintiff's discrimination claim. With respect to the two acts of alleged retaliation identified on the special verdict form - - the 1997-98 evaluation and the denial of reassignment - - the jury found in favor of plaintiff. The jury awarded compensatory damages of $180,000 for plaintiff's claim regarding the evaluation, and compensatory damages of $240,000 for her claim regarding defendant's denial of her request for reassignment. The court reduced the award to a total of $300,000. 42 U.S.C. § 1981a.
Defendant now moves for an amendment of the judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, or alternatively, for remittitur of the jury verdict (Docket No. 50). Defendant's Rule 59 request is predicated upon two grounds: (1) refusal to reassign "is not [an] adverse personnel action[,]" and (2) plaintiff failed to rebut the legitimate, non-discriminatory reasons defendant articulated for plaintiff's 1997-98 evaluation. Defendant's Memorandum of Points and Authorities in Support of its Motion for an Amendment of Judgment, or Alternatively, for Remittitur of the Jury Verdict ("Defendant's Memorandum") at 6-11. In support of his alternative motion for remittitur, defendant submits that the jury's compensation of damages award was "against the weight of the evidence" and "excessive," and maintains that the award should not exceed a total of $5,000. Id. at Plaintiff, in her opposition, maintains that the evidence was "more than sufficient" to support the jury's verdict in her favor. Plaintiff's Opposition to SBA's Post-Verdict Motion ("Plaintiff's Opposition") (Docket No. 69) at 1; see also id. at 9-11. Plaintiff further maintains that defendant's refusal to grant her request for reassignment was actionable in accordance with the law of this circuit. Id. at 4-9. *fn2 With respect to defendant's request for remittitur, plaintiff submits that defendant's "invitation to second-guess" the jury's award - - which already has been adjusted by the court not to exceed the statutory cap - - is "plainly disfavored" by this circuit. Id. at 11; see also id. at 3,12-14.
Defendant, in his reply, raises two contentions for the first time. First, defendant submits that plaintiff's arguments regarding "her unhappiness and stress" resulting from her non-selection for the branch chief position, as well as her "numerous complaints" about her interactions with her colleagues and supervisors, "appear to be setting the stage for some sort of hostile work environment claim, which was not presented to or decided by the jury." Defendant's Reply to Plaintiff's Opposition to SBA's Post-Verdict Motion ("Defendant's Reply") (Docket No. 64) at 2. Second, defendant submits that "[p]laintiff has not at any point in this case indicated that she was claiming to have suffered health problems as a result of her experiences at SBA," and that her trial testimony regarding such problems "[was] not supported by any credible evidence from a medical professional, and thus should not serve as the basis for a jury verdict." Id. at 8.
Plaintiff characterizes defendant's argument regarding the retaliation claim as "disingenuous[,]" since her claim regarding denial of her request for transfer "has been a part of this case since the inception, and has been raised at each stage of the litigation." Plaintiff's Sur-Reply at 4.
Upon consideration of defendant's motion, the memoranda in support thereof and in opposition thereto and the entire record herein, defendant's motion will be denied.
This circuit has repeatedly held that
Rule 59(e) motions "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.'" Anyanwutaku v. Moore, 151 F.3d 1053, 1057-58 (D.C. Cir. 1998) (quoting Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996)(per curium)) (internal citation omitted).
This court has observed that Rule 59(e) of the Federal Rules of Civil Procedure "is designed to allow courts to correct errors of fact appearing on the face of the record or errors of law," but that "the movant 'must clearly establish either a manifest error of law or fact or must present newly discovered evidence.'" United States v. Western Electric Co., 690 F.Supp. 22, 25 (D.D.C. 1988), aff'd in part, rev'd in part on other grounds, 900 F.2d 283 (D.C. Cir. 1990). Thus, a motion to alter or amend a judgment "is not routinely granted[,]" and "'is not simply an opportunity to reargue facts and theories on which a court has already ruled'" or "'[to bring] before the court theories or arguments that were not advanced earlier.'" Harvey v. District of Columbia, 949 F.Supp. 878, 879 (D.D.C. 1996) (citations omitted).
Defendant fails to identify the alteration or amendment of the judgment he requests. Instead, relying solely upon Foman v. Davis, 371 U.S. 178, 182 (1962), defendant states simply that "Rule 59(e) can be used to ask that a judgment be set aside in its entirety." Defendant's Memorandum at 4. However, the Supreme Court included no such holding in Foman; rather, in considering the decision of the lower court to evaluate a motion to vacate a judgment in accordance with Rule 59(e) rather than Rule 60(b), the Supreme Court held only that the lower court's decision to do so "was permissible, at least as an original matter[.]" Foman, 371 U.S. at 181. *fn3 This circuit has never held that Rule 59(e) "can be used" as the basis of a motion to set aside a judgment "in its entirety" on the grounds offered here: (1) whether a challenged action is an adverse personnel action as defined by Brown v. Brody and its progeny, and (2) plaintiff's supposed failure to rebut the legitimate, non-discriminatory reasons articulated by defendant for plaintiff 1997-98 evaluation - ...