United States District Court, District of Columbia
CASSANDRA M. MENOKEN, Plaintiff,
KATHLEEN MCGETTIGAN Acting Director, United States Office of Personnel Management, et al., Defendants.
MEMORANDUM OPINION & ORDER
BERMAN JACKSON, UNITED STATES DISTRICT JUDGE.
before the Court is plaintiff Cassandra M. Menoken's
motion under Federal Rule of Civil Procedure 59(e) for
reconsideration of the Court's August 11, 2017 order
granting defendants' motion to dismiss. Pl.'s Mot. to
Alter or Amend J. [Dkt. # 19] ("Pl.'s Mot.");
Mem. of P. & A. in Supp. of Pl.'s Mot. [Dkt. # 20-1]
("Pl.'s Mem."). The Court previously concluded
that plaintiffs retaliation claims against defendants the
United States Office of Personnel Management
("OPM") and the Social Security Agency
("SSA") were precluded under the doctrines of
res judicata and issue preclusion. Menoken v.
McGettigan, No. 16-0084, 2017 WL 3479048, at *1, *4-7
(D.D.C. Aug. 11, 2017) ("Menoken II”).
contends that the Court misunderstood her claim by
overlooking alleged facts, and she maintains that the
Court's decision "does not accord with equity
principles and applicable law." Pl.'s Mem. at 2-3.
Because plaintiff has not identified any proper basis for the
Court to alter or set aside the judgment, the motion will be
factual and procedural background of this case, the nature of
plaintiff s claims against defendants, and the basis for the
Court's ruling are laid out in detail in the Court's
decision, Menoken II, 2017 WL 3479048, so the Court
will address the facts only briefly here.
1993, plaintiff took the Administrative Law Judge
("ALJ") examination, which was administered by OPM.
Am. Compl. [Dkt. # 9] ("Menoken II
Compl.") ¶ 4. OPM created an ALJ Register using the
scores of applicants who had completed the 1993 exam.
Id. ¶¶ 16, 22. In May of 1994, plaintiff
filed an administrative complaint against OPM with the Equal
Employment Opportunity Commission ("EEOC Action"),
alleging that the examination and selection process violated
Title VII by discriminating against African American and
female applicants through its design and implementation.
See Ex. 1 to Defs.' Mot. to Dismiss [Dkt. #11-2]
("EEOC Order") at 1; see also Menoken v.
Whipple, 605 F.Supp.2d 148, 150 (D.D.C. 2009)
("Menoken I") (describing the procedural
history of plaintiff s case), no
November 9, 2000, the Administrative Judge presiding over the
matter found that a portion of the exam violated Title VII,
and he ordered OPM to "cease" use of a scoring
benchmark that awarded points to applicants who were partners
at large law firms because it was found to have an
"adverse impact on the basis of race." See
Menoken II Compl. ¶¶ 11-13; EEOC Order at 50,
61. On June 29, 2001, the Administrative Judge ordered OPM to
review the scores of all applicants on the 1993 ALJ Register,
adjust their scores and rankings if they had been affected,
and notify agencies using the 1993 ALJ Register of the
discriminatory factor and the EEOC's decision. See
Menoken II Compl ¶¶ 13-15, 17-19, 21; Ex. 2 to
Defs.' Mot. to Dismiss [Dkt. # 11- 3].
March 2001, OPM issued a certificate to SSA containing the
names of eligible candidates for ALJ positions that SSA was
seeking to fill. Menoken II Compl. ¶ 36. The
certificate was based on the 1993 rankings, and plaintiffs
name was not included. Id. ¶¶ 22, 39. SSA
used this certificate to make ALJ selections in April 2001,
and it communicated offers to selectees in September 2001.
August 2003, plaintiff brought an action in the U.S. District
Court for the District of Columbia, alleging that OPM
"failed to comply" with the EEOC Order and that
OPM's administration of the ALJ selection process
unlawfully discriminated against African American and female
applicants in violation of Title VII. See Menoken I,
605 F.Supp.2d at 151-52. In March 2009, the court granted
summary judgment for OPM on all counts, and it explicitly
held that OPM was in compliance with the EEOC Order.
Id. at 152-53.
January 15, 2016, plaintiff filed the original complaint in
this case, asserting Title VII retaliation claims against OPM
and SSA. Compl. [Dkt. # 1]. In her amended complaint,
plaintiff alleged that in March 2001, two years before she
sued OPM the first time, OPM and SSA manipulated the ALJ
selection process to deny plaintiff consideration for an ALJ
position because she was a "prevailing party" in
the 1994 EEOC Action. See Menoken II Compl.
¶¶ 36-41, 55; see also Id. at
10-11. On October 11, 2016, defendants moved to dismiss
plaintiffs claims, Defs.' Mot. to Dismiss [Dkt. #11], and
on August 11, 2017, the Court granted defendants' motion.
See Menoken II, 2017 WL 3479048.
under Fed.R.Civ.P. 59(e) are disfavored and relief from
judgment is granted only when the moving party establishes
extraordinary circumstances." Niedermeier v. Office
of Max S. Baucus, 153 F.Supp.2d 23, 28 (D.D.C. 2001),
citing Anyanwutaku v. Moore, 151 F.3d 1053,
1057(D.C.Cir. 1998). "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." Ciralsky v. CIA, 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) "may not be
used to relitigate old matters, or to raise arguments or
present evidence that could have been raised prior to the
entry of judgment" Exxon Shipping Co. v. Baker,
554 U.S. 471, 485 n.5 (2008), quoting 11 Charles Wright &
Arthur Miller, Federal Practice and Procedure §2810.1
(2d ed. 1995). Rather, motions to alter or amend a judgment
"are intended to permit the court to correct errors of
fact appearing on the face of the record, or errors of
law." Hammond v. Kempthorne, 448 F.Supp.2d 114,
118 (D.D.C. 2006), quoting Indep. Petroleum Ass'n of
Am. v. Babbitt, 178 F.R.D. 323, 324 (D.D.C. 1998).
does not identify any intervening change of controlling law
or new evidence that would warrant reconsideration of the
Court's ruling. So, to prevail on her motion, plaintiff
must demonstrate that it is necessary to alter the
Court's judgment in order to correct ...