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United States District Court for the District of Columbia

June 14, 2005.

ELAINE L. CHAO, et al., Defendants.

The opinion of the court was delivered by: ROSEMARY COLLYER, District Judge


Pursuant to Federal Rules of Civil Procedure 59(e) and 60(b), Plaintiff Dwayne Jeffers asks the Court to reconsider its dismissal of his Equal Employment Opportunity ("EEO") Complaints Nos. 02-09 and 03-03, which alleged that the Pension Benefit Guaranty Corporation ("PBGC") discriminated and retaliated against him. The two EEO complaints were dismissed for failure of Mr. Jeffers to exhaust his administrative remedies due to his failure to "participate at all" in the investigation of his complaints. Jeffers v. Chao, No. 03-1762 (RMC), Memorandum Opinion on Motion to Dismiss, slip. op. 2 (D.D.C. Sept. 21, 2004). On reconsideration, Mr. Jeffers attacks Defendants' failure to clarify in the first instance that he, in fact, allowed an investigator to interview him twice in connection with EEO Complaint 02-09, and participated in a few weeks of settlement efforts concerning both complaints in January 2003.

Plaintiff's motion for reconsideration will be denied. The information now proffered by Mr. Jeffers is not "new information" within the meaning of the Rule 59 because it was known and available to him when he filed his opposition to Defendants' motion to dismiss. See Lightfoot v. Dist. of Columbia, 355 F. Supp. 2d 414, 421 (D.D.C. 2005) ("Rule 59(e) motions are not granted if the court suspects the losing party is using the motion as an instrumentality for arguing the same theory or asserting new arguments that could have been raised prior to final judgment." (citing Kattan v. Dist. of Columbia, 995 F.2d 274, 276 (D.C. Cir. 1993) (citations omitted)). Similarly, the information now proffered by Mr. Jeffers fails to meet the requirements of Rule 60(b) because it does not establish misrepresentation, mistake or that the original judgment was manifestly unjust. See Good Luck Nursing Home, Inc. v. Harris, 636 F.2d 572, 577 (D.C. Cir. 1980). On the merits, the additional information does not change the result: the PBGC was unable to thoroughly investigate EEO Complaint Nos. 02-09 and 03-03 because Mr. Jeffers adamantly refused to participate.


  A complete recitation of Mr. Jeffers's participation in the administrative EEO processing of his various complaints demonstrates his utter disregard for that process.

  A. EEO Complaint 99-06

  This complaint was filed by Mr. Jeffers on September 28, 1999, challenging a non-selection for promotion and alleging retaliation. Raymond Desmone was appointed to investigate the non-selection and he called Mr. Jeffers on February 21, 2000 to schedule an interview in the next week. Mr. Jeffers said that his schedule was too uncertain to make an appointment at that time, but that he would call back on February 24, 2000 to schedule the appointment. Mr. Jeffers failed to make that call, so Mr. Desmone called him on February 29, 2000, and left a message. Mr. Jeffers called back and left a voice message for Mr. Desmone that he was too busy to meet that week and he would call again about scheduling a meeting in the week thereafter. No such call was made. Mr. Desmone left another message on Mr. Jeffers's voice mail on March 9, 2000, but received no return call. Mr. Desmone finally reached Mr. Jeffers on March 14, 2000, and scheduled an appointment for an interview for 10:30 a.m. on March 22. At 8:30 a.m. on March 22, Mr. Desmone again called Mr. Jeffers to remind him of the interview and learned from Mr. Jeffers's voice-mail message that Mr. Jeffers was out of the office until March 23. Mr. Desmone left a voice message asking Mr. Jeffers to contact him immediately and also sent a letter by first class mail requesting an interview appointment. With no responses by April 3, 2000, Mr. Desmone sent a certified letter return receipt requested, which was returned "Unclaimed" after two delivery attempts. On April 20, 2000, Mr. Desmone sent yet another letter to Mr. Jeffers, certified and return receipt requested and also by regular mail, with summaries of the statements of two PBGC witnesses for his rebuttal. The certified letter was later returned as "Refused." Mr. Desmone completed his investigation without any information from Mr. Jeffers.

  Donald Mirsch was appointed to investigate Mr. Jeffers's retaliation claim. Mr. Mirsch called Mr. Jeffers on July 3, 2000, to ask for a meeting as soon as possible to take Mr. Jeffers's statement concerning his charge. Mr. Mirsch left a message, suggesting that they meet on July 11, 2000. Thereafter on July 13, 2000, Mr. Mirsch sent a letter to Mr. Jeffers, by regular and certified mail return receipt, to explain that Mr. Mirsch had called the phone numbers at Mr. Jeffers's home and office and left messages without response. Mr. Mirsch enclosed a series of written questions for Mr. Jeffers to answer. The certified mail was returned "Unclaimed" but the regular mail was not. Mr. Jeffers never responded to any of these calls or to the letters.

  B. EEO Complaints 02-01 and 02-09

  Mr. Jeffers filed EEO Complaint 02-01 on March 8, 2002, and it was assigned to Norma White to investigate. On June 12, 2002, Mr. Jeffers filed EEO Complaint 02-09. At some unspecified time in July 2002, Ms. White interviewed Mr. Jeffers in connection with Complaint 020-1; he says that the interview also touched on Complaint 02-09. Complaints 02-01 and 02-09 were formally consolidated under the number 02-09 after that interview and Ms. White was assigned to investigate both. On July 25, 2002, Ms. White sent a draft affidavit to Mr. Jeffers, based on their interview. On August 2, 2002, Mr. Jeffers asked Ms. White to postpone preparation of a final affidavit because he wanted to amend EEO Complaint 02-09. Ms. White wrote to Mr. Jeffers on September 7, 2002, to advise him that she needed to re-start the investigation. She interviewed Mr. Jeffers on September 18, 2002. However, on September 23, 2002, Ms. White further advised Mr. Jeffers that EEO Complaint 02-09 was put "on hold" pending discussion of his additional issues, so she would not be forwarding a draft affidavit immediately. Ms. White sent the draft affidavit to Mr. Jeffers's representative, Robert Perry, on December 25, 2002, and asked him to return a signed copy within 10 days.

  The progress, or lack thereof, on EEO Complaint 02-09 thereafter coincided with Mr. Jeffers's EEO Complaint 03-03.

  C. EEO Complaint 03-03

  Mr. Jeffers filed this complaint on December 17, 2002, and it was assigned to John Raymos to investigate.

  In January 2003, a representative from the PBGC initiated settlement discussions with Messrs. Perry and Jeffers in an attempt to achieve a global settlement of his outstanding EEO complaints. For a period of approximately three weeks, the parties exchanged proposals but these efforts failed. Mr. Jeffers states that he did not return the affidavit forwarded to him by Ms. White in EEO Complaint 02-09 because of these settlement discussions. Plaintiff's Motion for Reconsideration ("Pl.'s Mot.") at 4.

  On March 31, 2003, Mr. Raymos was assigned to replace Ms. White as the investigator on EEO Complaint 02-09. Thereafter, a series of email exchanges ensued, which the Court describes to impart the difficulties with the investigations of EEO Complaints 02-09 and 03-03.


• 4/18/03 (Raymos to Perry): Recites a chronology of efforts to call Mr. Perry without success starting on 4/7/03 to schedule an interview with Mr. Jeffers; a scheduled call between 10 a.m. and noon on April 17, 2003, from Messrs. Perry and Jeffers to Mr. Raymos never happened because Mr. Jeffers was unavailable; a rescheduled call from Messrs. Perry and Jeffers to Mr. Raymos on April 18, 2003, never occurred without explanation. Asks for the opportunity to meet with Mr. Jeffers.
• 4/21/03 (Perry to Raymos, cc Jeffers): "I consider your purpose for the chronology of events to be suspect" for unstated reasons. Promised that he and Mr. Jeffers would call Mr. Raymos by the end of the week.
• 4/21/03 (Raymos to Perry): He "will look forward to your and Mr. Jeffers call this week" and giving his scheduled availability.
• 4/22/03 2:45 p.m. (Jeffers to Raymos,*fn1 cc Perry): "If you had taken the time to read the proper documents, you would have seen that I am listed as a co-representative on complaint 03-03. You have yet to contact me. This is totally improper conduct. You never contacted me to this very day, yet you are providing bogus reports that I have not telephoned you. This is absolutely outrageous."
• 4/22/03 2:53 p.m. (Jeffers to Raymos,*fn2 cc Perry): "Reading Is Fundamental (RIF). Robert [Perry's] 04/21/2003 e-mail . . . specifically requests that you include me on all communications! Yet you refuse to do that. I am a co-representative and should be included on all communications. "This type of conduct and the May 30, 2003 [Report of Investigation] deadline does [sic] not give an indication that you plan on doing a thorough investigation."
• 4/25/03 (Raymos to Jeffers and Perry): to "sincerely apologize" for omitting Mr. Jeffers as an addressee; "[i]t was an unintentional oversight on my part." Mr. Raymos "respectfully ask[ed]" that Messrs. Jeffers and Perry provide interview dates.
• 4/29/03 6:09 p.m. (Jeffers to Raymos, cc Perry): "The previous investigator, Norma White, e-mailed me 4 times on April 2, 2003 about my case. Norma was removed from the case on March 31, 2003. If the workloads were re-adjusted, then why was she still working the case? I also requested that Norma return the tapes of the interview, which she has yet to do. When will the tapes be returned? I also made several attempts to get Norma removed from my case for improper conduct. Are you going to vigorously investigate this matter? I have not seen anything in MD-110 that stipulates a 45-day investigation. Can you cite me the page numbers and e-mail the subtext?
"Robert & myself [sic] should be available on Thursday and Friday."
• 4/30/03 10:14 a.m. (Raymos to Jeffers cc Perry): "I was assigned to complete the investigation of Case Number PBGC 02-09 and Case Number PBGC 03-03 on March 31, 2003. . . . The tapes of the interviews conducted by Ms. White are the property of McCauley & Associates and will not be provided to you. . . . EEO MD 110, Chapter 5, Section V B (page 5-27) is the part which discusses the guidelines for timely completion of EEO investigations. . . . If you and Mr. Perry are available, I will meet you at 10 a.m. on Thursday, May 1, 2003, in Room 2123" of the PBGC "to conduct the interview. . . . [P]lease provide the completed affidavits that resulted from the interviews that were conducted by Ms. White in PBGC Case Number 02-09."
• 4/30/03 6:06 p.m. (Jeffers to Raymos cc Perry): "You might as well cancel that meeting because we have problems. I must be assured prior to scheduling a meeting with you that you will conduct a thorough and proper investigation, without any misconduct. When that interview was conducted with Norma White she said before the interview started that I can have the original tape of my interview returned to me if requested. Now all of a sudden it is the property of your company. So this tells me that your company is enga[g]ing in improper conduct. The taped recording of my interview has been done under false pretenses. Since, [sic] your company does not honor its word I find it hard to rely on your representation that you will meet your commitments and conduct an impartial investigation.
"Again, need to answer my previous e-mail question:
"I also made several attempts to get Norma removed from my case for improper conduct. Are you going to vigorously investigate this matter?
"You have not properly answered that question!"
• 4/30/03 11:06 p.m. (Raymos to Jeffers cc Perry): "I do not intend to cancel the meeting. I will be in Room 2123" PBGC "at 10 a.m. on Thursday, May 1, 2003, to meet with you and your representative to conduct the interview. I sincerely hope that you and Mr. Perry will be present."
• 5/1/03: (Raymos to Jeffers cc Perry): Mr. Raymos waited in Room 2123 for approximately 20 minutes. Since no one came, he "determined that you had elected not to meet with me." Absent further contact from either Mr. Perry or Mr. Jeffers, Mr. Raymos would complete his investigation without their input.
• 8/6/03: (Raymos to Perry cc Jeffers): "I would still appreciate the opportunity to interview Mr. Jeffers prior to completing my Report of Investigation in his EEO Complaints, Case Numbers PBGC 02-09 and PBGC 03-03. Accordingly, I hereby respectfully request that you or Mr. Jeffers contact me by e-mail in order to schedule a mutually agreeable date and time." Failing a response by August 13, 2003, Mr. Raymos would note a lack of cooperation.
• 8/12/03: (Jeffers to Raymos and Perry, cc David Shapiro, his current counsel): "Please be advised that I have secured legal counsel. . . . Let us know your availability so we can handle this matter."
(Smith Decl., Attachment E). Mr. Raymos completed a Report of Investigation (ROI) for both EEO Complaints 02-09 and 03-03 but the PBGC did not issue a final agency decision before Mr. Jeffers filed this suit on August 19, 2003. II. LEGAL STANDARD

  Mr. Jeffers moves the Court to reconsider its dismissal of his EEO Complaints Nos. 02-09 and 03-03 pursuant to Federal Rules of Civil Procedure 59(e) and 60(b). The legal standards governing the two rules are markedly similar. Under Rule 59(e), a motion for reconsideration "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.'" Bricker v. F.B.I., 63 F. Supp. 2d 57, 58 (D.D.C. 1999) (quoting Anayanwutaku v. Moore, 151 F.3d 1053, 1057-58 (D.C. Cir. 1998)). Similarly, in accordance with Rule 60(b), "a party that . . . has not presented known facts helpful to its cause when it had the chance cannot ordinarily avail itself on rule 60(b) after an adverse judgment has been handed down." Harris, 636 F.2d at 577. However, when "a previously undisclosed fact [is] so central to the litigation that it shows the initial judgment to have been manifestly unjust, reconsideration under rule 60(b)(6) is proper even though the original failure to present that information was inexcusable." Id.


  Mr. Jeffers argues that the Court made "errors in fact" and needs to "prevent a manifest injustice." Pl.'s Mot. at 6. He asserts that he, in fact, participated in the investigation process concerning his EEO claims and that he "has been severely and unjustly prejudiced in that the dismissal of this case [was] the result of a one-sided rendition of the facts" from Defendants. Id. at 10. The Court disagrees.

  First, the PBGC's motion to dismiss was predicated upon its argument that Mr. Jeffers had refused to participate in the administrative investigations of these EEO Complaints and thereby had failed to exhaust his administrative remedies. Mr. Jeffers responded that he had no obligation to "enthusiastically participate?" and that he "followed all protocols legally required of him." Plaintiff's Opposition to Defendant's Motion to Dismiss ("Pl.'s Opp.") at 1, 4. He presented no facts to suggest that he participated in the administrative process and failed to challenge or counter the PBGC's description of his rude treatment of Mr. Raymos. The facts he now wishes to present concerning his dealings with Ms. White are not "new" because they were fully known to him when he filed his Opposition. Mr. Jeffers chose to stay silent on the facts and instead to treat the Government's motion in a cavalier manner. See id. at 4 ("Making him act in a manner that pleases the defendant is an unfair burden and as a result, defendant's motion to dismiss must be denied."). Having made his choice, he cannot now claim that "new" facts require the Court to reconsider its decision. See Lightfoot, 355 F. Supp. 2d at 421; see also W.C. & A.N. Miller Co. v. United States, 173 F.R.D. 1, 3 (D.D.C. 1997), aff'd sub nom, Hicks v. United States, no. 99-5010, 1999 WL 414253 (D.C. Cir. May 17, 1999) ("[A] Rule 59(e) motion is not a second opportunity to present argument upon which the Court has already ruled, nor is it a means to bring before the Court theories or arguments that could have been advanced earlier.").

  Second, the Court finds that no injustice would result from dismissal of the complaint allegations based on EEO Complaints 02-09 and 03-03. The record is perfectly clear that Mr. Jeffers failed to perform his obligation and submit to an interview with Mr. Raymos concerning EEO Complaint Nos. 02-09 and 03-03. His arguments to the contrary are spurious. There is no basis in this record to question the bona fides of Mr. Raymos's intentions or vigor in investigating Mr. Jeffers's EEO Complaints. Certainly the refusal of McCauley & Associates, the outside contractor to whom the PBGC contracts its EEO investigations, to give*fn3 Mr. Jeffers a copy of his taped interviews with Ms. White does not intimate that its investigators are suspect or subject to attack. The federal EEO process requires a complainant to participate in good faith in the investigation of his EEO complaints; a failure to do so is equivalent to filing a civil suit and then failing to prosecute it. See Wilson v. Pena, 79 F.3d 154, 164-65 (D.C. Cir. 1996). The federal EEO complainant who becomes impatient with the process can always request his right-to-sue notice and proceed to court without a final agency decision. See Dougherty v. Berry, 869 F.2d 605, 610-13 (D.C. Cir. 1989) (citing 42 U.S.C. § 2000e-5(f)(1)). But a federal employee cannot totally refuse to participate in the investigation of his charge and then file a lawsuit. Since the history of Mr. Jeffers's EEO Complaint Nos. 02-09 and 03-03 demonstrates that he did just that, the Court finds no injustice in refusing to reconsider its dismissal.

  Third, while the additional (but not "new") information now presented by Mr. Jeffers indicates that he met twice with Ms. White for interviews associated with his consolidated EEO Complaint 02-09, it is clear that the investigation was never completed. When Mr. Raymos tried to do so, he was ignored and/or treated rudely by Mr. Jeffers. Mr. Jeffers's conduct towards Mr. Raymos mirrored his conduct toward Mr. Desmone*fn4 and illustrates his contempt for the EEO investigation process and his obligations to participate in it. The Court finds that Mr. Jeffers's participation in the incomplete work of Ms. White — slow as it was — did not relieve Mr. Jeffers of his obligations to respond to Mr. Raymos's entreaties for information. While Mr. Jeffers asserts that the investigation of Complaint 02-09 was complete before Mr. Raymos was assigned to it, there is no record support for this assertion. To the contrary, Mr. Raymos conducted further investigation and tried repeatedly, without success, to get a statement from Mr. Jeffers. There is no injustice to be found pursuant to either Rule 59(e) or 60(b) when an EEO complainant disregards the administrative investigation into his own charge and thereby precludes himself from proceeding in court.

  Accordingly, Plaintiff's motion for reconsideration will be denied. A separate order accompanies this memorandum opinion.

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