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JEFFERS v. CHAO

June 14, 2005.

DWAYNE JEFFERS, Plaintiff,
v.
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.

  I. BACKGROUND

  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 ...


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