United States District Court, District of Columbia
RODIRIGO A. PATZY, Plaintiff,
FRED P. HOCHBERG, President & Chairman, Export-Import Bank of the United States, Defendant.
MEMORANDUM OPINION AND ORDER
ROSEMARY M. COLLYER United States District Judge.
March 16, 2016, Rodrigo A. Patzy filed a Complaint against
Fred P. Hochberg, in his official capacity as President and
Chairman of the Export-Import Bank of the United States (the
Bank), claiming retaliation and discrimination against Mr.
Patzy because he is a Latino male. On November 9, 2016, this
Court denied the Bank's Motion to Dismiss Mr. Patzy's
discrimination claim and granted the Motion with respect to
his retaliation claim. See Mem. Op. [Dkt. 14]. Mr.
Patzy now moves for reconsideration of the Court's ruling
on his retaliation claim. See Mot. for Recons. [Dkt.
17]. Since the facts are described in detail in this
Court's Memorandum Opinion on the Motion to Dismiss, they
will not be reiterated here. See Mem. Op. at 1-3.
The Court will deny Mr. Patzy's Motion for
Rule of Civil Procedure 54(b) governs a court's
reconsideration of non-final, or interlocutory, orders.
See Murphy v. Exec. Office for U.S. Attorneys, 11
F.Supp.3d 7, 8 (D.D.C. 2014), aff'd, 789 F.3d
204 (D.C. Cir. 2015). An order granting a motion to dismiss,
in part, is an interlocutory order. Cuban v. S.E.C.,
795 F.Supp.2d 43, 48 (D.D.C. 2011) (“Court action that
terminates fewer than all claims in a case is considered
interlocutory.” (citing Langevine v. District of
Columbia, 106 F.3d 1018, 1023 (D.C. Cir. 1997))). Rule
54(b) provides that an interlocutory order “may be
revised at any time before the entry of a judgment
adjudicating all the claims and all the parties' rights
and liabilities.” Fed.R.Civ.P. 54(b). A motion for
reconsideration under Rule 54(b) may be granted “as
justice requires.” United States v. Dynamic
Visions, Inc., No. CV 11-cv-695(CKK), 2017 WL 1476102,
at *2 (D.D.C. Apr. 24, 2017) (quoting Singh v. George
Washington Univ., 383 F.Supp.2d 99, 101 (D.D.C. 2005)).
The court may consider whether it “patently
misunderstood a party, made a decision beyond the adversarial
issues presented to the court, made an error in failing to
consider controlling decisions or data, or whether a
controlling or significant change in the law or facts has
occurred since the submission of the issue to the
Court.” Id. (internal quotation marks and
Court dismissed Mr. Patzy's retaliation claim because he
“failed to establish that his lowered performance
rating amounted to a materially adverse employment action,
” and, therefore, had not pled sufficient facts to
state a claim for retaliation under Title VII, 42 U.S.C.
§ 2000e-3(a) (2012). Mem. Op. at 6. As the Court
explained, Mr. Patzy “allege[d] only that a higher
rating would have made him eligible for a Quality Step
Increase, leaving to speculation whether eligibility
regularly becomes an award.” Id. at 6-7. Mr.
Patzy's allegations remain the same; he has presented no
grounds that warrant reconsideration of the Court's
context of a claim of retaliation or discrimination under
Title VII, a performance assessment is not adverse merely
because it was lowered; “rather, the question is
whether discrimination or retaliation caused a significant,
tangible harm.” Walker v. Johnson, 798 F.3d
1085, 1095 (D.C. Cir. 2015). To establish “injury or
harm” that falls within the protection of Title
VII's anti-retaliation provision, “a plaintiff must
show that a reasonable employee would have found the
challenged action materially adverse.” Burlington
N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68
(2006). A “materially adverse” action is one that
would have “dissuaded a reasonable worker from making
or supporting a charge of discrimination.” Id.
(internal quotation marks and citations omitted).
significant, tangible harm is reflected, in most cases, by
“direct economic harm.” Douglas v.
Donovan, 559 F.3d 549, 552 (D.C. Cir. 2009) (quoting
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742,
762 (1998)). Thus, to be considered “materially
adverse, ” a poor performance evaluation generally must
“affect an employee's ‘position, grade level
salary or promotional opportunities.'” Ramos v.
Lynch, No. 13-cv-0328(ABJ), 2017 WL 421907, at *6
(D.D.C. Jan. 31, 2017) (quoting Taylor v. Solis, 571
F.3d 1313, 1321 (D.C. Cir. 2009)). The complaint must allege
sufficient facts to infer that the “performance
evaluation is linked to the year-end bonus, and is
therefore an adverse employment action.” Bruder v.
Chu, 953 F.Supp.2d 234, 242 (D.D.C. 2013) (emphasis
added). Generally, a plaintiff must allege a causal
relationship between a performance evaluation and the lack of
an award; it is insufficient to show that a higher evaluation
would merely make an employee eligible for
consideration for an award. Compare Weber v.
Battista, 494 F.3d 179 (D.C. Cir. 2007) (finding causal
relationship between evaluation and financial award) with
Douglas v. Donovan, 559 F.3d 549, 553 (D.C. Cir. 2009)
(nomination was necessary but not sufficient to ensure
receipt of an award with related financial compensation).
Weber, 494 F.3d 179, the plaintiff survived summary
judgment where she established a “causal
relationship” between her evaluation and the lack of an
award because the record showed that the employer had
“opted to give Weber an award in each of the three
years preceding 1998, the year in which she complained of
discrimination and received no such award.”
Id. at 185. In Douglas, 559 F.3d 549, the
court did not find sufficiently tangible harm where the
plaintiff's employer declined to recommend the plaintiff
for a Presidential Award, with its accompanying financial
benefit. Id. at 551. While the departmental
nomination was a threshold requirement to be considered for a
Presidential Award, it was “but a single point in the
assessment, ” and, after the nomination, many other
factors would be considered. Id. at 553. The alleged
harm was too speculative “[b]ecause nomination for a
Presidential Award [did] not automatically or even
consistently lead to receipt of one[.]” Id. at
Patzy does not argue that there has been a “significant
change” in law or facts, or that the Court's
decision went “beyond the adversarial issues presented
to [it.]” Dynamic Visions, 2017 WL 1476102, at
*2. Rather, he repeats his argument that his “Complaint
of Damages [sic] established that a ‘Top Performer'
gave rise to more than much more than [sic] a fanciful hope
of a quality step increase. The increase in compensation was
actually more reasonable expectation [sic].” Mot. for
Recons. at 2. Mr. Patzy reiterates that “a ‘Top
Performer' designation . . . would again make
Mr. Patzy eligible for a bonus.” Mot. for Recons. at 2
(citing Compl. [Dkt. 1] ¶ 48). The Court did not
patently misunderstand the allegations that Mr. Patzy has
made before and emphasizes now. See Dynamic Visions,
2017 WL 1476102, at *2. The mere allegation that Mr. Patzy
would “again” have been “eligible”
for a Quality Step Increase had he received a higher
performance evaluation does not raise an inference of harm
that rises above speculation. He shows no certainty of an
award, only that a higher rating was necessary for
Patzy also asks the Court to consider evidence that he may
obtain during discovery. At the point of a motion to dismiss,
a court's “role is not to speculate about which
factual allegations are likely to be proved after
discovery.” Harris v. D.C. Water & Sewer
Auth., 791 F.3d 65, 70 (D.C. Cir. 2015) (citing
Twombly, 550 U.S. at 556). If there is a link to be
established between Top Performer designation and a Quality
Step Increase, the ...