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Powell v. Castaneda

December 18, 2007


The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Document No. 52




This case comes before the court on the plaintiff's motion to reconsider the court's disposition of the defendant's motion to dismiss. The plaintiff, Barbara Powell, a former employee of the Federal Housing Finance Board, brought suit for discrimination, retaliation and hostile work environment claims under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq., and violations of the Equal Pay Act ("EPA"), 42 U.S.C. §§ 206 et seq., the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq., the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12112 et seq., and the Rehabilitation Act, 29 U.S.C. §§ 791, 793, 794(a). The court issued an opinion on September 26, 2005, disposing of many of the plaintiff's claims. Despite the significant delay in bringing her motion to reconsider, the plaintiff insists that highlighting facts, previously hidden in prolixity, and referencing superceding case law should compel the court to restore several of the dismissed claims. Because the court did not previously consider the plaintiff's amendments to the EEOC complaint, and because the Supreme Court expanded the standard governing adverse employment actions under Title VII, the court grants in part and denies in part the plaintiff's motion.


For a complete recitation of the underlying facts in this case see the court's Memorandum Opinion issued September 26, 2005. The substance of that opinion disposes of the plaintiff's claims pursuant to the EPA and ADA for lack of subject-matter jurisdiction. Mem. Op. (Sept. 26, 2005) at 7, 15. In addition, the court partially granted the defendant's motion to dismiss due to the plaintiff's failure to timely notify an Equal Employment Opportunity Commission ("EEOC") counselor within 45 days as required by 29 C.F.R. § 1614.105(a)(1). Specifically the court dismissed the plaintiff's discrimination and retaliation claims arising out of (1) the October 1999 denial of paid leave, (2) the January 2000 business trip to New York with Edward Kelley, the plaintiff's supervisor, (3) the October 11, 2001 memorandum regarding the plaintiff's failure to follow office procedures, (4) the December 2001 "below standard" performance rating, (5) the June 2002 "unsatisfactory" performance rating, (6) the June 2002 performance improvement plan ("PIP"), and (7) the August 2003 notice of proposed removal. Id. at 11 nn.4-6. The court continued, partially dismissing the plaintiff's retaliation claims as to (1) the June 2001 performance review, (2) the August 2001 and April 2004 letters of reprimand, and (3) the denial of permission to attend a training session because these acts did not constitute materially adverse employment actions. Id. at 14. Finally, the court dismissed the plaintiff's claim under the Rehabilitation Act for failing to state a claim. Id. at 15-16.

The plaintiff appeared pro se for the first three and a half years of this case, but on September 12, 2007, Robert Seldon, Esq. entered his appearance on behalf of the plaintiff. Less than two months later, on October 31, 2007, the plaintiff filed a motion for reconsideration of the court's September 26, 2005 opinion. The plaintiff's motion requests that the court re-evaluate its decision in light of superceding precedent, which expanded the definition of a material adverse employment action for the purposes of retaliation claims under Title VII. Furthermore, the plaintiff contends that a second review of the plaintiff's timeliness arguments -- specifically the impact of purported amendments to the plaintiff's EEOC complaint -- may necessitate, in the interests of justice, the reinstatement of several of the plaintiff's claims. The court now addresses the plaintiff's arguments.


A. Legal Standard for Altering or Amending an Interlocutory Judgment

A district court may revise its own interlocutory decisions "at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties." FED. R. CIV. P. 54(b); see also Childers v. Slater, 197 F.R.D. 185, 190 (D.D.C. 2000) (citing Federal Rule of Civil Procedure 60(b)'s Advisory Committee Notes). The standard of review for interlocutory decisions differs from the standards applied to final judgments under Federal Rules of Civil Procedure 59(e) and 60(b). Compare Muwekma Tribe v. Babbitt, 133 F. Supp. 2d 42, 48 n.6 (D.D.C. 2001) and United Mine Workers v. Pittston Co., 793 F. Supp. 339, 345 (D.D.C. 1992) with LaRouche v. Dep't of Treasury, 112 F. Supp. 2d 48, 51-52 (D.D.C. 2000) and Harvey v. District of Columbia, 949 F. Supp. 878, 879 (D.D.C. 1996). A motion pursuant to 59(e), to alter or amend a judgment after its entry, is not routinely granted. Harvey, 949 F. Supp. at 879.

The primary reasons for altering or amending a judgment pursuant to Rule 59(e) are an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice. Id.; Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (per curiam). Motions pursuant to Rule 60(b) may be granted for similar reasons. FED. R. CIV. P. 60(b); LaRouche, 112 F. Supp. 2d at 51-52. Reconsideration of an interlocutory decision is available under the standard, "as justice requires." Childers, 197 F.R.D. at 190.

"As justice requires" indicates concrete considerations of whether the court "has patently misunderstood a party, has made a decision outside the adversarial issues presented to the [c]court by the parties, has made an error not of reasoning, but of apprehension, or where a controlling or significant change in the law or facts [has occurred] since the submission of the issue to the court." Cobell, 224 F.R.D. at 272 (internal citation omitted). These considerations leave a great deal of room for the court's discretion and, accordingly, the "as justice requires" standard amounts to determining "whether reconsideration is necessary under the relevant circumstances." Id. Nonetheless, the court's discretion under 54(b) is limited by the law of the case doctrine and "subject to the caveat that, where litigants have once battled for the court's decision, they should neither be required, nor without good reason permitted, to battle for it again." Singh v. George Wash. Univ., 383 F. Supp. 2d 99, 101 (D.D.C. 2005) (internal citations omitted).

B. Justice Requires the Court to Reinstate Two of the Three Claims at Issue Because the Plaintiff ...

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