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Brown v. Tomlinson

November 17, 2006

CRISTIAN C. BROWN, PLAINTIFF,
v.
KENNETH Y. TOMLINSON, CHAIRMAN, BROADCASTING BOARD OF GOVERNORS, DEFENDANT.



The opinion of the court was delivered by: Paul L. Friedman United States District Judge

MEMORANDUM OPINION

This matter is before the Court on plaintiff's motion to vacate and alter judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure on his employment discrimination and retaliation claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Upon consideration of plaintiff's motion, defendant's opposition, plaintiff's reply and the amicus brief filed by the Metropolitan Washington Employment Lawyers Association by leave of the Court, the Court grants plaintiff's motion.

I. BACKGROUND

Plaintiff, an African-American male, is employed by defendant as an Internet News Writer/Editor. Complaint ("Compl.") ¶ 3. On July 2, 2001, plaintiff applied for a different position within defendant's agency, that of Assistant Internet Development Coordinator. Compl. ¶ 10. Applicants were ranked by General Schedule ("GS") certificate level. Plaintiff's Opposition to Motion for Summary Judgment, Pl.'s Exh. 3, Second Affidavit of Cristian Craig Brown ("Sec. Brown Aff.") at 2. Plaintiff alleges that although he is qualified for the position and was promoted while his application was pending, he was not contacted for an interview. Compl. ¶¶ 14, 15, 19. Plaintiff claims that when he attempted to schedule an interview, he did not receive a reply for nearly a month and then was told that the position already had been filled. See Sec. Brown Aff. at 2. A white female who was allegedly less experienced than plaintiff was hired instead. Compl. ¶ 20.

On August 29, 2001, plaintiff applied for an Assistant Internet Design Coordinator position, also at defendant's agency. Compl. ¶¶ 22, 23. Plaintiff claims he was the only one of six applicants who was not initially offered an interview, and that he was eventually contacted for an interview a week later than the other applicants. Id. Plaintiff was again not hired for the position, which was offered first to an Asian-American female and then to a white male, both of whom allegedly had significantly less experience than plaintiff. Id. ¶¶ 28, 29.

Plaintiff filed a formal administrative discrimination complaint against defendant on April 12, 2002. See Defendant's Motion for Summary Judgment, Declaration of Nicole J. St. Louis ("St. Louis Decl.") ¶ 3. Plaintiff alleged in that complaint that he was denied the positions because of his race and in retaliation for a previous EEO complaint that he filed in 1996. Compl. ¶¶ 4, 34. After defendant completed its investigation, plaintiff chose to have a hearing before an EEOC administrative judge before a final decision was made by defendant. Id. ¶ 4. On January 9, 2003, the parties received an Acknowledgment and Order from the EEOC directing both parties to begin discovery within 20 days from receipt of the Order. St. Louis Decl. ¶¶ 4, 9. Defendant timely began discovery on January 29, 2003. Id. ¶ 9. Plaintiff missed his deadline to initiate discovery requests, and moved for more time to respond to defendant's discovery requests, securing an extension until February 20, 2003. Id. ¶¶ 15, 18. On February, 14, 2003, plaintiff requested that the deadline for completing all discovery be postponed until March 31, 2003, and the administrative judge granted the request. Id. ¶ 17-20. Plaintiff then missed the February 20, 2003 extended deadline to respond to defendant's discovery requests and provided only a partial response on March 6, 2003. Id. ¶¶ 30.

On March 6, 2003, the administrative judge ruled that plaintiff "did not initiate discovery in a timely manner," and gave plaintiff until the "close of business" on March 7, 2003 to initiate discovery. Attachment 10 to St. Louis Decl. Plaintiff faxed his first request after the close of business on March 7, 2003. St. Louis Decl. ¶ 37. On March 12, 2003, the date his remaining discovery requests were due, plaintiff notified defendant and the administrative judge that he planned to withdraw his complaint from the EEOC and pursue his claim in a United States District Court. Id. ¶ 40.

On March 24, 2003, plaintiff filed formal a motion to withdraw his complaint before the EEOC. St. Louis Decl. ¶ 42. The next day, the administrative judge issued an Order of Dismissal of plaintiff's administrative complaint stating that "Complainant has withdrawn his request for a hearing and has served notice of his intent to file a civil action in the United States District Court for the District of Columbia pursuant to 29 C.F.R. § 1614.407(b) (2002)." Attachment 14 to St. Louis Decl.; St. Louis Decl.¶ 43. Plaintiff filed suit against defendant in this Court on June 24, 2003.

On February 23, 2004, defendant filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, arguing first that plaintiff failed to exhaust his administrative remedies and, second, that he was unable to establish a prima facie case of retaliation. Defendant's Motion for Summary Judgment at 1. This Court granted that motion on August 10, 2005, by Memorandum Opinion and Order. Relying on the D.C. Circuit's opinion in Rann v. Chao, 346 F.3d 192 (D.C. Cir. 2003), the Court held that plaintiff did not exhaust his administrative remedies because he failed to cooperate with defendant's discovery requests related to his administrative hearing and then abandoned the administrative process altogether by declaring his intention to file suit in federal court. August 10, 2005 Memorandum Opinion at 4, 6-7. The Court further held that plaintiff's retaliation claim was barred as a result of his failure to exhaust his administrative remedies. Id. at 8.

On August 23, 2005, plaintiff moved to vacate and alter this Court's judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. With leave of the Court, the Metropolitan Washington Employment Lawyers Association filed a brief as amicus curiae in support of plaintiff's motion on August 29, 2005.

II. DISCUSSION

A. Standard of Review Under Rule 59(e)

Plaintiff requests that the Court vacate and alter its judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. "'A Rule 59(e) motion is discretionary and 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.'" Ciralski v. Central Intelligence Agency, 355 F.3d 661, 671 (D.C. Cir 2004) (quoting Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir 1996)). Rule 59(e) motions "may not be used to relitigate old matters, or to raise new arguments or present evidence that could have been raised prior to the entry of judgment." Niedermeier v. Office of Max S. Baucus, 153 F. Supp.2d 23, 28 (D.D.C. 2001).

In his Rule 59(e) motion, plaintiff argues that the Court's judgment was clear error and therefore requests that the Court reconsider its decision and vacate or alter its Order. The defendant opposes the motion, arguing in part that plaintiff is attempting to raise new issues that should have been raised earlier in the litigation. The Court disagrees. In opposing defendant's motion for summary judgment, plaintiff opposed, though somewhat inartfully, defendant's assertion that plaintiff failed to exhaust his administrative remedies. See Plaintiff's Memorandum of Law in Support of Opposition to Motion for Summary Judgment and/or for Dismissal at 2. As part of that opposition, plaintiff argued that Rann v. Chao is inapplicable to the case at bar. See id. at 2-3. In their Rule 59 briefs, plaintiff and ...


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