United States District Court, District of Columbia
SHELIA S. BOWE-CONNOR, Plaintiff,
ROBERT A. MCDONALD, Secretary of Veterans Affairs, Defendant.
MEMORANDUM OPINION AND ORDER
DEBORAH A. ROBINSON United States Magistrate Judge
se litigant, Shelia S. Bowe-Connor, brought suit on an
alleged violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq. based on gender
discrimination and harassment in retaliation and reprisal for
prior EEO activity. The case proceeded to a jury trial, after
which the jury entered a verdict for the Defendant on March
31, 2016. Verdict Form (ECF No. 165). Plaintiff immediately
filed three post-trial motions; Motion for Relief From
Judgment (ECF No. 171), Motion to Alter Judgment (ECF No.
172), and Motion to Set Aside Judgement (ECF No. 173). Upon
consideration of the motions, the memoranda in support
thereof and opposition thereto, and the entire record herein,
the undersigned will deny each of Plaintiff's motions.
OF THE PARTIES
filed three motions based on three different Federal Rules of
Civil Procedure. The Plaintiff's first, Motion for Relief
from Judgment, is made pursuant to Federal Rule 60(b)(1),
(3), and (6). In it, Plaintiff argues that the Court admitted
improper evidence, including testimony concerning events in
2008, and the last document moved into evidence by the
Defendant. Motion for Relief From Judgment (ECF No. 171) at
1-2. The testimony concerning events in 2008, Plaintiff
argues, was outside the scope of the trial, which was only to
cover the time period of 2009 through 2011. Id. at
1. Additionally, Plaintiff argues that “Defendant
clearly entered fraudulent information” which was,
“clearly object able [sic] because the Plaintiff argued
with the court that she had not seen the document
before.” Id. at 1-2. Plaintiff adds that her
claim was based on an EEOC case and not based on gender
discrimination. Id. at 2. Plaintiff further contends
that these errors by the Court were “very prejudicial
to the Plaintiff.” Id.
second motion is made pursuant to Federal Rule of Civil
Procedure 59(e), and is largely a restatement of her argument
that evidence concerning 2008 should not have been admitted.
Additionally, she adds allegations that the Court improperly
placed the issue of the 2010 Performance Evaluation under the
gender claim, when it should have been placed under the
retaliation claim, and that the Plaintiff was prejudiced by
being required to examine a witness who could appear only by
telephone. Motion to Alter Judgment (ECF No. 172) at 1-2.
Plaintiff argues that the admission of improper evidence was
“very prejudicial” for the jury, id. at
1, and that the telephone examination “inhibited proper
examination of the witness, ” id. at 2.
third and final motion is made pursuant to Federal Rule of
Civil Procedure 60(d)(3). In it, she alleges that the
Defendant called three witnesses “to commit perjury
while on the witness stand.” Motion to Set Aside
Judgment (ECF No. 173) at 1. Plaintiff argues that three
witnesses for the Defendant testified about a 2008 incident
in a way that was contradictory to evidence offered by the
Plaintiff. Id. Plaintiff contends that this
“gave the jury the wrong impression of the
opposes Plaintiff's first motion on the grounds that
Plaintiff was afforded a complete trial and that it was the
Plaintiff, rather than the Defendant, who elicited witness
testimony regarding the 2008 incident. Defendant's
Opposition to Plaintiff's Motions for Relief from
Judgment and to Alter or Amend the Judgment (ECF No. 180) at
2. Defendant also argues that the documentary evidence and
other complaints are not “cognizable under Rule
60(b)(3) or (6) and Plaintiff has failed to carry her burden
of showing that the Rule applies in this case.”
Id. at 3. Defendant further contends that
Plaintiff's second motion fails to meet the standard of
Rule 59(e) because Plaintiff called the witness who testified
regarding the 2008 incident, the Court instructed as to both
retaliation and gender discrimination and “Plaintiff
failed to object or to bring this to the Court's
attention, ” id. at 5, and that the appearance
by telephone for direct examination of a witness was proper
because the witness was outside the jurisdiction of the
Court, id. Defendant avers that any allegedly
improper evidentiary matters were insignificant considering
that the jury “sat through six days of trial and heard
approximately 20 witnesses.” Id. at 5-6.
Finally, Defendant argues that Plaintiff's third motion
fails because Plaintiff “presented absolutely no
evidence that any of the witnesses' statements are untrue
beyond baseless assertions of perjury.” Defendant's
Opposition to Plaintiff's Motion to Set Aside the Verdict
for Fraud on the Court (ECF No. 183) at 2.
reply, Plaintiff does not address the substance of
Defendant's arguments, nor does she cite any additional
support for her contention that Rules 59 and 60 are
appropriate in this case. See generally
Plaintiff's Reply to Defendant's Opposition Motion to
Plaintiff's Motions for Relief From Judgement and Alter
or Amend the Judgment as Untimely (ECF No. 181);
Plaintiff's Reply to Defendant's Response to
Plaintiff's Assertion of Untimeliness (ECF No. 189).
Instead, Plaintiff argues that the Defendant's opposition
memoranda were not filed in a timely manner and therefore
should not be considered by the court. Plaintiff's Reply
(ECF No. 181); see also Plaintiff's Reply to
Defendant's Opposition to Plaintiff's Motions to Set
Aside the Verdict for Fraud on the Court (ECF No. 184). In
her second reply, Plaintiff also alleges for the first time
that Defendant intentionally omitted pages from the jury
instructions. Plaintiff's Reply (ECF No. 184) at 3.
Rule of Civil Procedure 60(b) authorizes a court to relieve a
party from judgment for six reasons, only three of which are
at issue here: (1) mistake, inadvertence, surprise, or
excusable neglect; (3) fraud, misrepresentation, or other
misconduct by an opposing party; and (6) any other reason
justifying relief from the operation of the judgment.
Fed.R.Civ.P. 60(b); Norris v. Salazar, 277 F.R.D.
22, 25 (D.D.C. 2011). Additionally, the moving party seeking
relief from the judgment bears the burden of proof.
Id. (citing Rufo v. Inmates of Suffolk Cnty.
Jail, 502 U.S. 367, 383-84 (1992); United States v.
8 Gilcrease Lane, 668 F.Supp.2d 128, 130- 31 (D.D.C.
2009); Mazengo v. Mzengi, 542 F. 2upp. 2d 96, 100
n.3 (D.D.C. 2008)).
party seeks relief under Rule 60(b)(1) based on mistake, only
“alleged factual mistakes are potentially grounds for
Rule 60(b)(1) relief.” Munoz v. Board of Trustees
of University of Dist. of Columbia, 730 F.Supp.2d 62,
66-67 (D.D.C. 2010). Contentions that the Court made a legal
“mistake” are generally not applicable to the
Rule 60(b)(1) analysis. Id. (“Standing alone,
a party's disagreement with a district court's legal
reasoning or analysis is rarely, if ever, a basis for relief
under Rule 60(b)(1) … the appropriate place to
challenge alleged errors of law is by filing an
appeal.”) It is unclear precisely what kind of mistake
Plaintiff is alleging occurred during trial, but from the
language of the motion, it appears to be an allegation that
the Court erred in admitted certain evidence. This Circuit has
only recognized the applicability of Rule 60(b)(1) motions to
alleged legal errors when “the district court has made
an obvious error, such as basing its legal reasoning on case
law that it failed to realize had recently been
overturned.” Munoz, 730 F.Supp.2d at 67
(citing District of Columbia Fed'n of Civic
Ass'ns v. Volpe, 520 F.2d 451, 451-53 (D.C. Cir.
1975); Rockefeller ex rel. U.S. v. Washington TRU
Solutions LLC, No. 03-7120, 2004 WL 180264 (D.C. Cir.
Jan. 21, 2004); Bestor v. F.B.I., 539 F.Supp.2d 324
(D.D.C. 2008); Ward v. Kennard, 200 F.R.D. 137, 139
(D.D.C. 2001)) (internal quotations omitted). None of
Plaintiff's allegations of legal mistake made by the
Court are cognizable under the Rule 60(b)(1) analysis.
also seeks relief from judgment under Rule 60(b)(3) based on
“fraudulent information” entered by the
defendant. Motion for Relief from Judgment (ECF No. 171) at
1. A party seeking relief under Rule 60(b)(3) must
“prove any purported fraud or misconduct by clear and
convincing evidence.” Armenian Assembly of America,
Inc. v. Cafesjian, 924 F.Supp.2d 183, 187 (D.D.C. 2013)
(citing Shepherd v. Am. Broad. Co., 62 F.3d 1469,
1477 (D.C. Cir. 1995)) (internal quotation marks omitted).
Additionally, a moving party must show “actual
prejudice, that is, [she] must demonstrate that
defendant's conduct prevented [her] from presenting [her]
case fully and fairly.” Ramirez v. Department of
Justice, 680 F.Supp.2d 208, 210 (D.D.C. 2010) (citing
Summers v. Howard Univ., 374 F.3d 1188, 1193 (D.C.
Cir. 2004)). Plaintiff here argues that Defendant offered
evidence that the Plaintiff had not seen before, that her
claim was listed as one of gender discrimination rather than
because of an EEOC case, and that Defendant has entered
fraudulent information throughout the case. Plaintiff's
motion, however, does not offer any actual evidence of fraud,
and this Court has held that “unsubstantiated,
conclusory accusations that the defendants have lied
throughout the various stages of the litigation …
fail to satisfy [her] burden of demonstrating an
entitlement to relief.” Green v. American
Federation of Labor and Congress of Indus.
Organizations, 811 F.Supp.2d 250, 254 (D.D.C. 2011).
Even if the Plaintiff were to establish fraud or
misrepresentation, she has not shown how such activity
prevented her from fully and fairly litigating her case.
See Id. On the contrary, Plaintiff had a full
opportunity to present her case to the jury.
Plaintiff seeks relief under Rule 60(b)(6). As this Court has
noted, “[c]ourts apply this catch-all reason sparingly,
invoking it only in extraordinary circumstances.”
Id. at 253-54 (citing Pioneer Inv. Services Co.
v. Brunswick Associates Ltd. Partnership, 507 U.S. 380,
393 (1993)). Such exceptional circumstances exist only when
there a “violation has created a substantial danger of
an unjust result.” Richardson v. National R.R.
Passenger Corp., 150 F.R.D. 1, 7-8 (D.D.C. 1993)
(quoting Metlyn Realty Corp. v. Esmark, Inc., 763
F.2d 826 (7th Cir. 1985)). This circuit has held that such
motions “may not be employed simply to rescue a
litigant from strategic choices that later turn out to be
improvident.” Kramer v. Gates, 481 F.3d 788
(D.C. Cir. 2007). Plaintiff has shown no extraordinary
circumstances sufficient to justify the requested relief.
“The underlying purpose of both Rule 60(b)(3) and Rule
60(b)(6) is to ensure that justice and fundamental fairness
are not defeated. It is for the court to weigh conflicting