The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge
Plaintiff Michelle Rogers ("plaintiff" or "Rogers"), a former employee of the Department of the Navy, brings this Title VII sexual harassment action against the Secretary of the Navy, ("defendant"). On March 30, 2005, the Court denied defendant's motion to dismiss or, in the alternative, for summary judgment. Defendant has filed a motion for reconsideration of this decision. Upon consideration of the motion, the response and reply thereto, the applicable law, and the entire record, the Court DENIES defendant's motion for reconsideration.
Plaintiff, a former employee of the Department of the Navy, Engineering Field Activity Chesapeake ("EFACHES"), Construction Division, Washington Navy Yard, brings this Title VII action against defendant, claiming that she was the victim of sexual harassment and rape by her former immediate supervisor, Jasper Garner ("Garner"). Plaintiff is an African American female who is hearing and speech impaired. Pl.'s SOF at 13.*fn2 Plaintiff began working for the Department of the Navy in November 1987. Def.'s Statement of Material Facts Not in Dispute ("Def.'s SOF") ¶ 1. Garner was plaintiff's supervisor from 1994 to September 1998, at which time Garner was transferred to another division and Robert Silver ("Silver") became plaintiff's supervisor. Pl.'s Supp. SOF ¶ 1; Def.'s SOF ¶¶ 2-3.
Plaintiff alleges that Garner forced her to have sex with him or otherwise engaged in sexually offensive conduct beginning in April 1996 and continuing throughout the remainder of her tenure at the Navy. Pl.'s SOF at 13-14. Plaintiff contends that she reported the initial alleged assault to Cecilia Muhammad ("Muhammad"), her team leader,*fn3 and to Ellis Herndon ("Herndon"), a supervisor in a different division, within weeks of the first alleged incident in April 1996. Pl.'s Supp. SOF ¶ 9. On March 5, 1999, plaintiff notified Silver of her sexual harassment charges against Garner. Def.'s SOF ¶ 14. Plaintiff alleges that Garner placed a call to her cell phone on approximately March 19, 1999 and that this call continued his harassment of her. Pl.'s SOF at 15. She sought formal EEO counseling on March 24, 1999. Def.'s SOF ¶ 14.
On March 30, 2005, the Court denied defendant's motion for summary judgment, finding that there were material issues of fact regarding whether plaintiff unreasonably failed to comply with defendant's sexual harassment policy.*fn4 On July 17, 2009, defendant filed a motion for reconsideration based on a new case from the D.C. Circuit, Taylor v. Solis, 571 F.3d 1313 (D.C. Cir. 2009)).*fn5 This motion for reconsideration is now ripe for resolution by the Court.
1. Motion for Reconsideration
Due to the interlocutory nature of the Court's order denying the motion for summary judgment, defendant's motion for reconsideration is governed by Federal Rule of Civil Procedure 54(b), which "differs from the standards applied to final judgments under Federal Rules of Civil Procedure 59(e) and 60(b)." Williams v. Savage, 569 F. Supp. 2d 99, 108 (D.D.C. 2008) (citations omitted); Judicial Watch v. Dep't of Army, 466 F. Supp. 2d 112, 123 (D.D.C. 2006) ("A ruling that denies a dispositive motion... is an interlocutory judgment." (citations omitted)). "In particular, reconsideration of an interlocutory decision is available under the standard 'as justice requires.'" Judicial Watch, 466 F. Supp. 2d at 123 (citations omitted).
"'As justice requires' indicates concrete considerations" by the court, Williams, 569 F. Supp. 2d at 108, such as "whether the court patently misunderstood the parties, made a decision beyond the adversarial issues presented, made an error in failing to consider controlling decisions or data, or whether a controlling or significant change in the law has occurred." In Def. of Animals v. Nat'l Inst. of Health, 543 F. Supp. 2d 70, 75 (D.D.C. 2008) (internal citation and quotation marks omitted).
"Furthermore, the party moving to reconsider carries the burden of proving that some harm would accompany a denial of the motion to reconsider." In Def. of Animals, 543 F. Supp. 2d at 76. "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.'" Judicial Watch, 466 F. Supp. 2d at 123 (quoting Cobell v. Norton, 224 F.R.D. 266, 272 (D.D.C. 2004)). Defendant's motion to reconsider is based on new ...