UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
BLYDEN A. DAVIS, )
)
Plaintiff, )
)
v. ) Civ. Action No. 08-290 (EGS)
)
JOSEPH J. MAGNOLIA, INC., )
)
Defendant. )
______________________________)
MEMORANDUM OPINION
Plaintiff Blyden A. Davis filed discrimination and
retaliation claims against defendant Joseph J. Magnolia, Inc.,
his former employer, pursuant to Title VII of the Civil Rights
Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and the
District of Columbia Human Rights Act (“DCHRA”), D.C. Code § 2-
1401.01 et seq. On September 30, 2011, the Court granted in
part and denied in part defendant’s motion for summary judgment,
dismissing all of plaintiff’s claims except for one claim of
Title VII discrimination. Plaintiff and defendant have each
moved for reconsideration of Court’s ruling. Defendant
challenges the Court’s denial of summary judgment on the
remaining claim in this case for discrimination in violation of
Title VII. Plaintiff challenges the Court’s grant of summary
judgment dismissing his retaliation claim. Upon consideration
of the motions, the responses and replies thereto, the
applicable law, the entire record, and for the reasons stated
herein, the Court hereby DENIES defendant’s motion for
reconsideration and DENIES plaintiff’s motion for
reconsideration.
I. BACKGROUND
The factual background of this case has been set forth in
the Court’s prior opinions and will not be repeated here unless
relevant to the pending motions.
Plaintiff, who is African-American, was hired by defendant
in April 2005 as a heavy equipment operator working at
construction job sites. Soon after being hired, plaintiff
received two or three oral warnings in May 2005 concerning his
inability to operate heavy equipment, followed by a written
warning issued on June 2, 2005. The warning stated that
plaintiff was unable to operate heavy equipment as required by
the job, and plaintiff was transferred to a new crew, supervised
by Foreman Jeff Forsythe.
Plaintiff alleges that while working with the new crew, in
July 2005, a fellow employee informed him that Forsythe had
referred to plaintiff as a “nigger.” Plaintiff made an internal
complaint regarding Forsythe’s allegedly discriminatory conduct
on October 17, 2005. Following an investigation, Forsythe
received a written warning for violation of company procedures
and unsatisfactory behavior towards employees or customers.
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On November 2, 2005, while still working on Forsythe’s
crew, plaintiff received another written warning. This warning
stated that plaintiff had been insubordinate and violated
company policies by failing to take a required training class.
The warning specified that it was the “final warning before
discharge.”
In its September 30, 2011 Opinion, the Court found that
with respect to all but one of the allegedly discriminatory
actions, defendant had produced legitimate, non-discriminatory
reasons for the action, and summary judgment was appropriate for
defendant. With respect to one of the allegedly discriminatory
actions, however, the Court found that plaintiff had produced
“sufficient evidence from which a reasonable jury could infer
intentional discrimination.” Sept. 30, 2011 Op. at 13.
Specifically, the Court found that with respect to the November
2005 written warning, plaintiff had identified “sufficient,
albeit circumstantial, evidence from which a reasonable jury
could infer that Forsythe’s decision to issue plaintiff a
written reprimand was the result of intentional discrimination.”
Id. at 15.
The Court also granted defendant’s motion for summary
judgment on plaintiff’s claim of retaliation. Although the
Court found that plaintiff had established a prima facie case of
retaliation, the Court found that defendant had produced
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legitimate, non-discriminatory reasons for the November 2005 and
January 2006 written warnings and plaintiff’s termination in May
2006. Sept. 30, 2011 Op. at 30. The Court rejected plaintiff’s
arguments regarding the temporal proximity of plaintiff’s
complaints in October 2005 and January 2006 and the written
warnings. Sept. 30, 2011 Op. at 31 (citing Talavera v. Shah,
638 F.3d 303, 313 (D.C. Cir. 2011) (“[P]ositive evidence beyond
mere proximity is required to defeat the presumption that the
proffered explanations are genuine.”)).
Defendant, in its motion for reconsideration, asks the
Court to grant summary judgment in favor of defendant on
plaintiff’s sole remaining claim in the case: that plaintiff’s
supervisor discriminated against him by issuing a written
warning allegedly as a result of plaintiff’s failure to re-take
a training course. In support of its motion, defendant asks the
Court to consider “supplemental” facts that it did not submit in
support of its initial motion. Defendant also argues that a
single, written warning cannot, as a matter of law, qualify as
an “adverse employment action” under Title VII.
Plaintiff, in his motion for reconsideration, argues that
the Court should reverse its grant of summary judgment in favor
of defendant on plaintiff’s claims of retaliation under Title
VII. Specifically, plaintiff argues that the Court overlooked
evidence in the record that defendant’s reasons for disciplining
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plaintiff were without basis, pretextual, or involve disputed
material facts.
II. STANDARD OF REVIEW
A. Motion for Reconsideration
Under Rule 54(b) of the Federal Rules of Civil Procedure,
the district court may revise its own interlocutory orders “at
any time before the entry of judgment adjudicating all the
claims and all the parties’ rights and liabilities. Fed. R.
Civ. P. 54(b). The United States Court of Appeals for the
District of Columbia has provided that relief under 54(b) is
available “as justice requires.” Capitol Sprinkler Inspection,
Inc. v. Guest Servs., Inc, 630 F.d 217, 227 (D.C. Cir. 2011).
However, a motion for reconsideration is discretionary and
should not be granted unless the movant presents either newly
discovered evidence or errors of law or fact that need
correction. Nat’l Trust for Hist. Pres. v. Dep’t of State, 834
F. Supp. 453, 455 (D.D.C. 1993). Motions for reconsideration
cannot be used as “an opportunity to reargue facts and theories
upon which a court has already ruled, nor as a vehicle for
presenting theories or arguments that could have been advanced
earlier.” S.E.C. v. Bilzerian, 729 F. Supp. 2d 9, 14 (D.D.C.
2010) (internal citations omitted); accord Gaither v. District
of Columbia, 771 F. Supp. 2d 5, 10 (D.D.C. 2011) (denying motion
for reconsideration of summary judgment ruling where party
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sought to reargue theories and to supplement its inadequate
summary judgment briefing).
B. Summary Judgment
Summary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). Though the Court must draw all reasonable
inferences in favor of the non-moving party in deciding whether
there is a disputed issue of material fact, “[t]he mere
existence of a scintilla of evidence in support of the [non-
movant]’s position will be insufficient; there must be evidence
on which the jury could reasonably find for the [non-movant].”
Anderson, 477 U.S. at 252.
In the District of Columbia, Local Civil Rule 7(h) requires
that a motion for summary judgment “shall be accompanied by a
statement of material facts as to which the moving party
contends there is no genuine issue, which shall include
references to the parts of the record relied on to support the
statement.” Local Civ. R. 7(h). This rule “places the burden
on the parties and their counsel, who are most familiar with the
litigation and the record, to crystallize for the district court
the material facts and relevant portions of the record.”
Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101
6
F.3d 145, 151 (D.C. Cir. 1996) (citing Twist v. Meese, 854 F.2d
1421, 1425 (D.C. Cir. 1988)). Courts in this Circuit have
required strict adherence to this rule. See, e.g., id.
(affirming district court’s denial of plaintiff’s motion to
supplement its statement of material fact with additional
facts).
III. DISCUSSION
A. Defendant’s Motion for Reconsideration
As an initial matter, defendant’s motion for
reconsideration fails to set forth the applicable standard of
review for a motion for reconsideration and does not make clear
on what basis defendant seeks to have the Court reconsider its
prior opinion. On reply, defendant clarifies that it is seeking
reconsideration because “the undisputed facts establish [that]
Forsythe did not even know about, let alone request, prepare, or
issue the November 2005 written reprimand.” Def.’s Reply in
Supp. of Mot. for Recons. (“Def.’s Reply”), ECF No. 59, at 6.
Defendant argues that the Court’s September 30, 2011 Opinion is
based on the erroneous conclusion that “Forsythe’s decision to
issue plaintiff a written reprimand was the result of
intentional discrimination.” Id.
The Court reached no such conclusion. The language quoted
by defendant states in full that “[p]laintiff has therefore
identified sufficient, albeit circumstantial, evidence from
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which a reasonable jury could infer that Forsythe’s decision to
issue plaintiff a written reprimand was the result of
intentional discrimination.” Sept. 30, 2011 Op. at 15. This
was the Court’s conclusion that summary judgment was
inappropriate and that the issue of whether plaintiff had been
discriminated against should be left to the trier of fact.
In support of its motion, defendant submits a “Supplemental
Statement of Material Undisputed Facts” listing additional facts
and citing to exhibits not submitted in support of defendant’s
motion for summary judgment. See Docket No. 54-2. Defendant
alleges on reply that “[n]ewly discovered and supplemental
evidence are appropriate reasons to grant a motion for
reconsideration” and cites several cases.
While it is certainly true that newly-discovered evidence
may be considered on a motion for reconsideration, a party may
not rely on facts that could have been alleged in the underlying
motion but were not. See S.E.C. v. Bilzerian, 729 F. Supp. 2d
9, 14 (D.D.C. 2010) (motions for reconsideration cannot be used
as an opportunity to present theories or arguments that could
have been advanced earlier); Gaither v. District of Columbia,
771 F. Supp. 2d 5, 10 (D.D.C. 2011) (denying motion for
reconsideration of summary judgment ruling where party sought to
reargue theories and to supplement its inadequate summary
judgment briefing). Defendant cites to Gallant v. Telebrands
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Corp., 35 F. Supp. 2d 378 (D.N.J. 1998), a case from outside
this Circuit, as support for the proposition that “supplemental”
facts may be considered on a motion for reconsideration.
Although that court used the word “supplemental” interchangeably
with “newly-discovered,” the opinion makes clear that the court
determined that the new facts it was considering were, in fact,
newly-discovered. Indeed, the court noted that it was
“undisputed” that the relevant information had not been produced
to the moving party until more than a year and a half after the
court’s summary judgment order. Gallant, 35 F. Supp. 2d at 395.
The court concluded that the evidence was newly-discovered and
could properly be considered by the court on a motion for
reconsideration. Id.
In contrast, defendant has not alleged that the evidence
cited in its Supplemental Statement of Facts was in any way
unavailable, unknown, or undiscovered at the time that defendant
moved for summary judgment. Indeed, much of the evidence
appears to cite to deposition testimony that predates
defendant’s August 16, 2010 motion for summary judgment. See,
e.g., Ex. 4 to Def.’s Supp. Statement of Material Facts, Docket
No. 54-6 (Dec. 18, 2009 B. Davis Dep.); Ex. 5 to Def.’s Supp.
Statement of Material Facts, Docket No. 54-7 (Mar. 24. 2010 J.
Kulp Dep.); Ex. 7 to Def.’s Supp. Statement of Material Facts,
Docket No. 54-9 (Jun. 23, 2010 B. Woldemichael Dep.). Other
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evidence consists of supplemental declarations prepared by
defendant’s employees, who were deposed prior to the filing of
summary judgment and who submitted declarations in support of
defendant’s summary judgment brief. See, e.g., Ex. 11 to Def.’s
Supp. Statement of Material Facts, Docket No. 54-13 (Second
Supp. Decl. of B. Woldemichael). None of this information is
“newly-discovered.” Accordingly, this evidence is not properly
before the Court.
Defendant also argues that the Court made an error of law
in denying summary judgment because a written warning cannot
constitute an “adverse employment action.” Defendant argued
this issue in its reply in support of summary judgment, see
Docket No. 44 at 17, and the issue was considered by the Court
in its Opinion. See Sept. 30, 2011 Op. at 29. The Court
rejected defendant’s argument, finding that “plaintiff has
produced sufficient evidence to demonstrate that the written
warnings issued to plaintiff in November 2005 and January 2006
‘led to a more tangible form of adverse action’ because they
contributed to plaintiff’s termination, or at least this is a
materially disputed fact.” Id. (citing Def.’s Ex. 25). The
Court cited case law in support. Id. (citing Hyson v. Architect
of the Capitol, Civ. No. 08-979, 2011 U.S. Dist. LEXIS 88300, at
*40 (D.D.C. Aug. 10, 2011) (“A letter of counseling, written
reprimand, or unsatisfactory performance review, if not . . . a
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predicate for a more tangible form of adverse action, will
rarely constitute materially adverse action under Title VII.”
(emphasis added)). Accordingly, because the Court already
considered and rejected this argument, and because defendant has
not presented any change in law or error in the Court’s ruling,
defendant’s motion for reconsideration is DENIED.
B. Plaintiff’s Motion for Reconsideration
Plaintiff has cross-moved for reconsideration, alleging
that the Court “overlooked key facts and/or did not consider
important factual disputes in the record.” Pl.’s Mot. for
Recons. at 3. Specifically, plaintiff requests that the Court
reverse its earlier grant of summary judgment with respect to
plaintiff’s retaliation claims. Id. at 1. Plaintiff argues
that the Court erred in finding that plaintiff had failed to
discredit defendant’s legitimate business reasons for issuing
the warnings.
1. November 2005 Warning
Plaintiff argues that the temporal proximity (two weeks)
between the November 2005 warning and plaintiff’s prior
complaint is “remarkable” and establishes the basis for a causal
connection. As discussed in the Court’s Opinion, this temporal
proximity is insufficient to establish causation. Sept. 30,
2011 Op. at 31 (“Plaintiff has failed to provide any evidence,
other than sheer temporal proximity, that would allow a
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reasonable jury to infer that Forsythe’s motive in issuing the
written warning was retaliatory.”). The Court cited Talavera v.
Shah, which held that “positive evidence beyond mere proximity
is required to defeat the presumption that the proffered
explanations are genuine.” 638 F.3d 303, 313 (D.C. Cir. 2011).
Plaintiff, in repeating the arguments from his prior briefing,
has cited no basis for the Court to reconsider its decision.
Plaintiff also argues that an issue of material fact
remains as to whether plaintiff indeed refused to take the
flagging class and/or refused to take the test administered
thereafter. Upon review of the statement of material fact
submitted by defendant in support of its motion for summary
judgment, and plaintiff’s response, the Court finds that there
is no issue of material fact as to whether plaintiff refused to
take the test. See Pl.’s Opp. to Def.’s SOF ¶¶ 57-61, ECF No.
43-1. Specifically, the Court finds that plaintiff admitted
statements regarding his unwillingness to take the test. See
id. To the extent that plaintiff is arguing that there is a
difference between “refusing” to do something and indicating
that one is “unwilling” to do something, the Court finds that no
issue of material fact exists.
2. January 2006 Warning
Plaintiff also challenges the Court’s finding that
defendant provided a legitimate, non-retaliatory reason for
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issuing the January 2006 written warning, which resulted from
plaintiff’s damage to company property and the failure to report
that damage in violation of company policy. The policy states
that “All injuries, accidents and vehicular accidents occurring
or caused by Joseph J. Magnolia, Inc. employees must be reported
to supervision immediately upon occurrence.” Pl.’s Resp. to
Def.’s SOF ¶ 22, ECF No. 43-1.
Plaintiff asserts that the “Court overlooked the fact that
plaintiff violated no company policy in his failure to report
the damage.” Pl.’s Mot. for Recons. at 6. Plaintiff argues
that the policy makes clear that an accident must be reported,
but does not define by whom it must be reported. Plaintiff
asserts that although he signed the warning and indicated that
he agreed with his employer’s statement, he did not violate
company policy. 1 Plaintiff claims that this is evidence of
pretext that is sufficient to survive summary judgment on
retaliation. Plaintiff contends that this fact, “combined with
the stunning temporal proximity” of the warning and plaintiff’s
complaint, is evidence of prextext. Pl.’s Mot. for Recons. at
7.
1
Plaintiff also disputed this issue during the summary judgment
briefing. See Pl.’s Resp. to Def.’s SOF ¶ 22, ECF No. 43-1
(arguing that although plaintiff had agreed during his
deposition that he knew he was required to report an accident,
that the policy only required that the accident be reported by
an employee, not only the employee involved in the accident).
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The Court disagrees. As discussed above, temporal
proximity, standing alone, is insufficient to establish that
proffered explanations are not genuine. Furthermore, regardless
of what the policy actually required, it appears that plaintiff
and his employer had the same understanding at the time of the
accident that the policy required plaintiff to report the
accident. Shortly after the accident, plaintiff signed an
employee warning report that indicated it was a warning for
“violation of company policy/procedures.” Def.’s Ex. 17. The
report stated that plaintiff “did not report the accident to his
supervisor or the Safety Director.” Id. Plaintiff also agreed
at his deposition that he failed to report the accident in
violation of company policy. See Pl.’s Resp. to Def.’s SOF ¶ 22
(citing deposition testimony in which plaintiff agreed that he
was required to report all accidents immediately after they
occurred). The Court declines to find evidence of pretext where
plaintiff and his employer shared the same understanding of the
company policy at the time of the accident and, indeed, through
the time of plaintiff’s deposition. Accordingly, plaintiff has
not set forth any evidence sufficient for a reasonable jury to
believe that defendant’s stated reason was not the actual reason
for the January 2006 warning. See Ford v. Mabus, 629 F.3d 198,
201 (D.C. Cir. 2010).
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IV. CONCLUSION
For all of the foregoing reasons, defendant’s motion for
reconsideration is DENIED and plaintiff’s cross-motion for
reconsideration is DENIED. An appropriate Order accompanies
this Memorandum Opinion.
SIGNED: Emmet G. Sullivan
United States District Court Judge
September 28, 2012
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