United States District Court for the District of Columbia
June 14, 2005.
DWAYNE JEFFERS, Plaintiff,
ELAINE L. CHAO, et al., Defendants.
The opinion of the court was delivered by: ROSEMARY COLLYER, District Judge
MEMORANDUM OPINION ON MOTION FOR RECONSIDERATION
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
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
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
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
4/21/03 (Raymos to Perry): He "will look forward to
your and Mr. Jeffers call this week" and giving his
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
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
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
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.