Smith v. Holder

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

RHONDA SMITH.

Plaintiff,
Civil Action No. 10-1302 (BAH)
v.
Judge Beryl A. Howell
1
LORETTA LYNCH,
Attorney General of the United States,

Defendant.

MEMORANDUM OPINION

This Court entered a Memorandum Opinion (“Mem. Op.”), ECF No. 71, and

accompanying Order, ECF No. 72, granting summary judgment to the defendant in this action on

May 13, 2015. Now pending before the Court is the plaintiff’s Motion to Alter or Amend Order

Granting Defendant’s Motion for Summary Judgment (“Pl.’s Mot.”), ECF No. 73. For the

reasons set forth below, the motion is denied.

I. BACKGROUND

The pertinent facts of this case were adequately explained in the Mem. Op and need not

be repeated here. See Smith v. Lynch, No. 10-1302, 2015 WL 2265100, at *1–11 (D.D.C. May

13, 2015). In short, the plaintiff, who is an African American employee of the U.S. Department

of Justice, alleges that she was subjected to discrimination, a hostile work environment, and

retaliation, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §

2000e et seq., and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., based upon her race

1
The plaintiff originally named former Attorney General Eric Holder, Jr. as the defendant in this case. Pursuant to
Federal Rule of Civil Procedure 25(d), his successor, Loretta Lynch, is automatically substituted as the new
defendant.

1
and alleged disability of right-hand Carpal Tunnel Syndrome (“CTS”). Id. at *1. This Court

held, with respect to the plaintiff’s Rehabilitation Act claims, in Counts II and IV of the

Complaint, that (1) the plaintiff was not disabled within the meaning of the Rehabilitation Act in

effect when the plaintiff was allegedly held responsible for co-workers’ assignments, id. at *4;

given discriminatory work assignments, id. at *4–5; denied advance sick leave, id. at *5–8;

charged with tardiness, id. at *8; and bumped by her supervisor, id. at *8–9, all of which events

occurred in 2007, id. at 4–9; id. at 19 (holding that plaintiff was not “disabled” within the

meaning of the pre-ADA Amendments 2 Rehabilitation Act); (2) the plaintiff failed to exhaust her

administrative remedies, as required by statute, for any events that occurred after the operative

definition of disability under the Rehabilitation Act changed on January 1, 2009, id. at 19–20 and

n.24; 3 and (3), consequently, the plaintiff’s Rehabilitation Act claims based on alleged

discrimination, hostile work environment, and retaliation failed, id. at 20.

With respect to the plaintiff’s Title VII race discrimination claims, in Counts I and III of

the Complaint, the Court held that the plaintiff failed to provide any admissible evidence

sufficient to create a triable issue regarding whether she was treated differently from non-

African-American employees or whether the defendant’s treatment of her was motivated, in any

2
“[W]hat constitutes a ‘disability’ under the Rehabilitation Act changed on January 1, 2009, when Congressional
amendments to the ADA went into effect.” Smith, 2015 WL 2265100, at *17. These amendments (the “ADA
Amendments”) “reinstat[ed] a broad scope of protection under the ADA and [rejected] the holdings in” two
Supreme Court cases that interpreted the previous version of the ADA. Id. (quoting Lytes v. D.C. Water & Sewer
Auth., 572 F.3d 936, 939 (D.C. Cir. 2009) (alterations in original). The Rehabilitation Act generally incorporates the
standards of the ADA and shares the identical definition of “disability.” 29 U.S.C. § 794(d).
3
The plaintiff did not distinguish the events she alleged constituted a hostile work environment based on her race
from those based on her disability, see generally Pl.’s Opp’n Def.’s Mot. Summ. J. (“Pl.’s MSJ Opp’n”), ECF No.
59-1, but based on the substance of those allegations, at least two of the four post-2008 events alleged plainly pertain
exclusively to her disability claim: the plaintiff alleges that the defendant failed to offer reasonable accommodations
and failed to honor her doctor’s restrictions on her activities in 2009 and 2010. Id. at 17–19. The remaining two
events alleged are ambiguous as to the claim to which they relate. The plaintiff claims “she felt singled out because
of her [2007] EEO complaint and request for accommodations” when, on October 9–10, 2009, the plaintiff was
ordered to be at her desk at the start of her shift and to notify a supervisor when she left the building, id. at 19–20,
and that the Agency examined “her personal hard drive at work” on her DOJ computer “apparently to access
documents that may relate to her EEO cases,” id. at 20.

2
way, by the plaintiff’s race. See id. at 22–23. The Court concluded that “no reasonable jury

could find that the plaintiff . . . was subjected to a hostile work environment or retaliation based

on her race.” Id. at 23. Consequently, the Court granted summary judgment to the defendant on

all counts and dismissed this action. 4 Id.; Order at 1, ECF No. 72.

The plaintiff now seeks to alter the judgment against her pursuant to Federal Rule of

Civil Procedure 59(e). Pl.’s Mot. at 1. The defendant timely filed an opposition to the motion,

Def.’s Opp’n Pl.’s Mot. (“Def.’s Opp’n”), ECF No. 74, and the plaintiff did not file a reply. This

motion is now ripe for resolution.

II. LEGAL STANDARD

A motion to alter or amend a judgment under Federal Rule of Civil Procedure 59(e) “‘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.’” Messina v. Krakower, 439 F.3d 755, 758 (D.C. Cir. 2006) (quoting

Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996)). A district court’s denial of a

request for this extraordinary relief is reviewed only for abuse of discretion. See Mohammadi v.

Islamic Republic of Iran, 782 F.3d 9, 17 (D.C. Cir. 2015) (stating that “‘[r]econsideration of a

judgment after its entry is an extraordinary remedy which should be used sparingly.’” (quoting

11 Charles Alan Wright et al., FEDERAL PRACTICE & PROCEDURE § 2810.1 (3d ed. 2012)); Dyson

v. District of Columbia, 710 F.3d 415, 420 (D.C. Cir. 2013); Messina, 439 F.3d at 759;

Anyanwutaku v. Moore, 151 F.3d 1053, 1058 (D.C. Cir. 1998).

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While summary judgment was granted to the defendant on all counts, the Court dismissed those portions of the
plaintiff’s Rehabilitation Act claims that referred to events that occurred after the ADA Amendments took effect for
lack of subject matter jurisdiction, since the plaintiff failed to exhaust her administrative remedies as to those claims.
Smith, 2015 WL 2265100, at *20 n.24.

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 Absent a demonstrated intervening change of controlling law or new evidence, the law is

well-settled that litigants may not use Rule 59(e) either to repeat unsuccessful arguments or to

assert new but previously available arguments. See Exxon Shipping Co. v. Baker, 554 U.S. 471,

485 n.5 (2008). As the Supreme Court observed, “Rule 59(e) permits a court to alter or amend a

judgment, but it 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.” Id. (internal quotation

marks and citation omitted); see also Messina, 439 F.3d at 759 (finding no error in denying Rule

59(e) motion where “motion did nothing more than rely on the same arguments that [the movant]

originally made.”) (internal quotation marks and citation omitted). This is because “Rule 59(e)

motions are aimed at reconsideration, not initial consideration,” and arguments raised for the first

time on a Rule 59(e) motion may be deemed “waived.” GSS Grp. Ltd. v. Nat’l Port Auth., 680

F.3d 805, 812 (D.C. Cir. 2012); see also District of Columbia v. Doe, 611 F.3d 888, 896 (D.C.

Cir. 2010) (“[A]n issue presented for the first time in a motion pursuant to Federal Rule of Civil

Procedure 59(e) generally is not timely raised; accordingly, such an issue is not preserved for

appellate review unless the district court exercises its discretion to excuse the party’s lack of

timeliness and consider the issue.”); but see City of New York v. Nat’l R.R. Passenger Corp., 776

F.3d 11, 17 (D.C. Cir. 2015) (declining to consider on appeal plaintiff’s “reformulated” theory of

claim, noting that “a party seeking to raise a new issue on appeal should first present it to the

district court pursuant to a Rule 59(e) or 60(b)(6) motion” since the D.C. Circuit “continue[s] to

insist that a party wishing to raise a new issue after judgment first advance it before the district

court”). Thus, “Rule 59(e) is not a vehicle to present a new legal theory that was available prior

to judgment,” Patton Boggs LLP v. Chevron Corp., 683 F.3d 397, 403 (D.C. Cir. 2012), or “a

chance for [a party] to correct poor strategic choices,” SEC v. Bilzerian, 729 F. Supp. 2d 9, 15

4
(D.D.C. 2010). See also Kattan ex rel. Thomas v. District of Columbia, 995 F.2d 274, 276 (D.C.

Cir. 1993) (“[T]his Court has recognized that a losing party may not use a Rule 59 motion to

raise new issues that could have been raised previously.”). “The strictness with which such

motions are viewed is justified by the need to protect both the integrity of the adversarial process

in which parties are expected to bring all arguments before the court, and the ability of the parties

and others to rely on the finality of judgments.” U.S. Commodity Futures Trading Comm’n v.

McGraw-Hill Cos., Inc., 403 F. Supp. 2d 34, 36 (D.D.C. 2005); accord Silk v. Sandoval, 435

F.2d 1266, 1268 (1st Cir. 1971) (acknowledging “the complementary interest in speedy

disposition and finality, clearly intended by Rule 59”).

To constitute “clear error” within the meaning of Rule 59(e), courts have required “‘a

very exacting standard,’” Bond v. U.S. Dep’t of Justice, 286 F.R.D. 16, 22 (D.D.C. 2012)

(quoting Lightfoot v. District of Columbia, 355 F. Supp. 2d 414, 422 (D.D.C. 2005)), such that

the “final judgment must be ‘dead wrong’ to constitute clear error,” Lardner v. FBI, 875 F. Supp.

2d 49, 53 (D.D.C. 2012) (quoting Parts & Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F.2d

228, 233 (7th Cir. 1988)). Indeed, the Seventh Circuit has vividly observed that “[t]o be clearly

erroneous, a decision must strike [a court] as more than just maybe or probably wrong; it must . .

. strike [the court] as wrong with the force of a five-week-old, unrefrigerated dead fish.” Parts &

Electric Motors, 866 F.2d at 233. Hence, a fortiori, “‘[m]ere disagreement does not support a

Rule 59(e) motion.’” United States ex rel. Becker v. Westinghouse Savannah River Co., 305

F.3d 284, 290 (4th Cir. 2002) (quoting Hutchinson v. Staton, 994 F.2d 1076, 1082 (4th Cir.

1993)).

Finally, although “[t]he term ‘manifest injustice’ eludes precise definition,” Roane v.

Gonzales, 832 F. Supp. 2d 61, 64 (D.D.C. 2011), it is clear that “manifest injustice” is an

5
exceptionally narrow concept in the context of a Rule 59(e) motion. The D.C. Circuit has said

that manifest injustice arises from “rulings that upset settled expectations—expectations on

which a party might reasonably place reliance,” Qwest Servs. Corp. v. FCC, 509 F.3d 531, 540

(D.C. Cir. 2007), and does not result merely because a harm may go unremedied, accord Assoc.

Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 536 (1983)

(“[T]he judicial remedy cannot encompass every conceivable harm that can be traced to alleged

wrongdoing.”). Instead, “manifest injustice” must entail more than just a clear and certain

prejudice to the moving party, but also a result that is fundamentally unfair in light of governing

law.

III. DISCUSSION

As the defendant correctly points out, the plaintiff makes no attempt to offer new

evidence or assert an intervening change of law to justify her motion. Def.’s Opp’n at 3; see

generally Pl.’s Mot. Thus, it is only necessary to address whether the plaintiff has raised a “clear

error” in the Court’s previous opinion sufficient to warrant reconsideration of the judgment after

its entry. See Messina, 439 F.3d at 758. The plaintiff has not done so.

The plaintiff contends that the Court “applied incorrect legal standards in considering

Defendant’s summary judgment motion and committed clear error with some of its findings.”

Pl.’s Mot. at 2. In support of this contention, the plaintiff argues, first, that the Court “applied an

incorrect standard” to determine “whether [the plaintiff] presented triable issues.” Id. Next, the

plaintiff strains to revive her Rehabilitation Act claims by arguing the Court erred in determining

that the plaintiff’s right-hand CTS was not a disability under the Rehabilitation Act in effect

prior to the ADA Amendments of 2008, id. at 5, and in its treatment of alleged events occurring

after January 1, 2009, when the ADA Amendments took effect, id. at 9–12. Finally, the plaintiff

6
criticizes the Court’s consideration of her Title VII claims for incorrectly applying a correctly

articulated legal standard. Id. at 13–19. The Court is not persuaded by any of these arguments,

each of which is addressed in turn.

A. The Correct Summary Judgment Standard Was Applied

First, the plaintiff contends that her own self-serving, hearsay statements, which were

uncorroborated by any external evidence and contradicted by witnesses having direct knowledge

of the facts, raised issues of material fact sufficient to defeat summary judgment. Pl.’s Mot. at

2–3. According to the plaintiff, rejecting such evidence, standing alone, violates the requirement

under Federal Rule of Civil Procedure 56 that all reasonable inferences be drawn in favor of the

non-moving party. Id. at 3. Quoting the Supreme Court’s caution in Tolan v. Cotton, 134 S. Ct.

1861, 1866 (2014), that courts “must take care not to define a case’s ‘context’ in a manner that

imports genuinely disputed factual propositions,” Pl.’s Mot. at 3, the plaintiff contends that this

Court’s opinion improperly weighed the evidence against the plaintiff.

The plaintiff’s reliance on Tolan is misplaced. In Tolan, the Supreme Court considered

an alleged excessive force case, pursuant to 42 U.S.C. § 1983, involving at least six witnesses—

four family members and two police officers. 134 S. Ct. at 1863–64. In reviewing the facts

offered at summary judgment, the Supreme Court relied upon statements from multiple

witnesses, including from persons not otherwise involved as parties in the case, to determine that

a genuine issue of material fact sufficient for trial existed. See id. at 1866–67. For instance, the

Supreme Court noted the discrepancy between the lower court’s finding that the location where

the alleged incident of excessive force occurred was “dimly-lit,” and directly contrary testimony

from the plaintiff’s father that the area was illuminated by a non-decorative gas lantern, as well

as statements from at least three witnesses that the area was lit by two motion-activated

spotlights. Id. As another example, the Supreme Court recited the testimony from two
7
witnesses, the plaintiff and his mother, describing the victim of the alleged excessive force as

being on his knees when he was shot, while a third witness, another police officer on the scene,

described the plaintiff as “on both feet . . . looking as if he was going to move forward.” Id. at

1867. In the face of this contradictory eyewitness testimony regarding the lighting, the victim’s

position during the shooting, and other “central facts of this case,” id. at 1866, the Supreme

Court concluded that “[b]y weighing the evidence and reaching factual inferences contrary to

[the plaintiff’s] competent evidence,” summary judgment was erroneously granted, id. at 1868.

By contrast, in the instant matter, the plaintiff presented no evidence other than her own

self-serving statements that she was subjected to discrimination and a hostile work environment.

Her statements that she was subjected to “discriminatory work assignments” were directly

refuted by multiple witnesses with “first-hand knowledge of the relevant facts.” Smith, 2015 WL

2265100, at *21. The plaintiff’s disparate treatment allegations were not accompanied by any

evidence other than her own admittedly speculative assertions, without any documentary or

testimonial evidence from any other witness, despite ample opportunity for discovery. Id.

Unlike in Tolan, the plaintiff did not submit any evidence from other witnesses or other

documentary evidence on any issue of material fact such that drawing an inference in favor of

the plaintiff was either reasonable or warranted. See Greer v. Paulson, 505 F.3d 1306, 1315

(D.C. Cir. 2007) (noting that plaintiff’s own statement amounting to “sheer hearsay . . . counts

for nothing on summary judgment” (citing Gleklen v. Democratic Cong. Campaign Comm., Inc.,

199 F.3d 1365, 1369 (D.C. Cir. 2000)).

Tolan does not overturn the multiple cases in the D.C. Circuit holding that “inadmissible

evidence” and mere speculation, “counts for nothing” at the summary judgment stage. Gleklen,

199 F.3d at 1369. Moreover, Tolan, and this Court’s opinion in Smith, are entirely consistent

8
with Federal Rule of Civil Procedure 56(e), which provides that “[i]f a party fails to properly

support an assertion of fact or fails to properly address another party’s assertion of fact,” a court

may “consider the fact undisputed for the purposes of the motion” and grant summary judgment

to the moving party, so long as “the motion and supporting materials . . . show that the movant is

entitled to it.” FED. R. CIV. P. 56(e)(2–3). Indeed, the Tolan Court expressly cabined its ruling,

stating that, on remand, the facts cited by the Supreme Court were not “the only facts that the

[Circuit Court] should consider, or that no other facts might contribute to the” resolution of the

ultimate issue in that case. Tolan, 134 S. Ct. at 1868.

The D.C. Circuit has noted that “the objective of summary judgment” is “to prevent

unnecessary trials.” Gleklen, 199 F.3d at 1369. Summary judgment would be virtually

unachievable if Rule 56 were construed as the plaintiff urges and the non-moving party could

create a genuine issue of material fact by doing no more than simply disagreeing with the

movant’s documentary evidence and testimony from knowledgeable witnesses. The plaintiff

must do more than merely assert as “facts” her beliefs about material issues. Instead, beliefs that

are uncorroborated—and, to a large extent, contradicted—by other witnesses or documentary

evidence does not amount to competent evidence sufficient to defeat summary judgment,

particularly when the factual assertions are susceptible to corroboration after an ample

opportunity for discovery. 5 See Giles v. Transit Emps. Fed. Credit Union, No. 14-7055, 2015

5
The plaintiff’s assertion that “[s]ummary judgment should be issued sparingly against plaintiffs in employment
discrimination cases,” Pl.’s Mot. at 4, is unsupported by Supreme Court and D.C. Circuit precedent. The plaintiff
relies primarily on two cases, Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 137 (2000), and
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 803 (1973). Pl.’s Mot. at 4–5. Neither case involved a motion
for summary judgment. See McDonnell Douglas, 411 U.S. at 797 (noting district court resolved case on motion to
dismiss); Reeves, 530 U.S. at 138 (noting case was resolved after trial and “the District Court twice denied oral
motions by respondent for judgment as a matter of law”). Moreover, in both cases, the Supreme Court held that
“sufficient evidence for the trier of fact to disbelieve the defendant’s legitimate, nondiscriminatory explanation for
its action,” Reeves, 530 U.S. at 137, was necessary to support a ruling the plaintiff’s favor. See McDonnell Douglas,
411 U.S. at 807 (holding that plaintiff was required “to demonstrate that [the defendant’s] assigned reason for
refusing to re-employ was a pretext or discriminatory in its application”). In affirming a district court’s grant of

9
WL 4217787, at *5 (D.C. Cir. July 14, 2015) (holding that plaintiff “cannot create a dispute of

material fact by distorting testimony and then complaining of a lack of documentation” when

documentary evidence in record contradicted plaintiff’s otherwise uncorroborated statement). In

some circumstances, even evidence generally supporting the plaintiff’s assertions, provided by a

disinterested witness, can be insufficient to defeat a motion for summary judgment. See id.

(finding, in ADA action, co-workers’ “positive view of [the plaintiff’s performance” to be “of

exceptionally limited relevance” when not communicated to supervisors). Thus, the Court

applied the correct standard by drawing all reasonable inferences in favor of the plaintiff, while

correctly stopping short of accepting all factual assertions of the plaintiff in the face of directly

contrary evidence when the plaintiff’s assertions derived from inadmissible evidence. 6 See id. at

*6 (crediting, on summary judgment, defendant’s testimony, supported by documentary

evidence, over plaintiff’s uncorroborated assertions to the contrary).

summary judgment in an ADA case, the D.C. Circuit recently reaffirmed the applicability of Rule 56 to
discrimination cases and, relying in part on Reeves, stated “an employer is entitled to summary judgment where ‘the
plaintiff created only a weak issue of fact as to whether the employer’s [explanation] was untrue and there [is]
abundant and uncontroverted independent evidence that no discrimination [has] occurred.’” Giles v. Transit Emps.
Fed. Credit Union, No. 14-7055, 2015 WL 4217787, at *11 (D.C. Cir. July 14, 2015) (quoting Reeves, 530 U.S. at
148) (first alteration added). Specifically, the Giles court noted that “there are ‘instances where, although the
plaintiff has . . . set forth sufficient evidence to reject the defendant’s explanation, no rational factfinder could
conclude that the action was discriminatory.’” Id. at *7 (quoting Reeves, 530 U.S. at 148). This case is such an
instance, even if the plaintiff had set forth sufficient evidence, which she has not.
6
Additionally, the plaintiff ignores another fundamental—and fatal—flaw in her Complaint: the utter lack of any
evidence of causation. See Giles2015 WL 4217787, at *11 (affirming summary judgment in ADA case where
plaintiff made “exceedingly weak” prima facie case, including no evidence of causation). While it is true that
disparate treatment and circumstantial evidence may form the basis of a discrimination claim, in such cases the
plaintiff must present statistics or other evidence sufficient to “permit the inference that, absent other explanation,
the disparity more likely than not resulted from illegal discrimination.” See Aliotta v. Bair, 614 F.3d 556, 563 (D.C.
Cir. 2010) (citing Segar v. Smith, 738 F.2d 1249, 1274 (D.C. Cir. 1984)). Here, the “plaintiff has not alleged the use
of racially discriminatory comments or other overt acts of racism in her workplace” or comments or actions related
to her disability. Smith, 2015 WL 2265100, at *20. The plaintiff’s burden, then, was to present sufficient evidence,
statistical or otherwise, from which an inference could be drawn that “the disparity [in treatment] more likely than
not resulted from illegal discrimination.” Aliotta, 614 F.3d at 563. Since the plaintiff failed utterly to present any
such evidence, the plaintiff failed to prove that the alleged discrimination, hostile work environment, and retaliation
were in any way related to her race or alleged disability. Consequently, the plaintiff’s case fails because she did not
offer any evidence that any of the alleged incidents were caused by illegal discrimination.

10
 In any event, the issue of the appropriate standard was briefed by the plaintiff during

summary judgment. See Pl.’s Opp’n Def.’s Mot. Summ. J. (“Pl.’s MSJ Opp’n”) at 23, ECF No.

59-1. Thus, the plaintiff’s argument is merely an attempt 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., 554 U.S. at 485 n.5, which is improper on a Rule 59(e) motion. This argument is

rejected as a ground for reconsideration.

B. The Plaintiff Was Not Disabled Within The Meaning Of The Pre-ADA
Amendments To The Rehabilitation Act

The plaintiff does not challenge the Court’s use of the Rehabilitation Act’s definition of

“disability” in effect prior to 2009 to evaluate the alleged pre-2009 incidents, see generally Pl.’s

Mot., but nonetheless contends that the Court erred in determining that she was not disabled

under that version of the law, Pl.’s Mot. at 5–9. The plaintiff’s arguments are unpersuasive. She

first cites a number of out-of-circuit cases purportedly holding that CTS “is a disability under

the” pre-ADA Amendments definition of disabled, but none of those cases is binding on this

Court. Id. at 6. Additionally, none of those decisions are persuasive since none post-date Toyota

Motor Manufacturing Kentucky, Inc. v. Williams (Toyota), 534 U.S. 184 (2002), and pre-date the

ADA Amendments. See Pl.’s Mot. at 6. Consequently, none of the cases cited by the plaintiff

stand for the proposition that, post–Toyota, the pre-Amendments ADA always supported CTS as

a disability. In any event, the plaintiff misconstrues the Court’s holding: the Court did not find

that CTS could never be a disability within the meaning of the Rehabilitation Act, either before

or after the ADA Amendments; rather, the Court found that the plaintiff had failed to prove that

her CTS was a disability. See Smith, 2015 WL 2265100, at *18–20. 7

7
The plaintiff refers to one case involving a plaintiff with CTS where the requests for accommodation occurred after
Toyota and before the ADA Amendments, though the decision was rendered after the ADA Amendments took
effect. See Pl.’s Mot. at 6 (citing Giannattasia v. City of New York, 2011 WL 4629016, at *6 (E.D.N.Y. Sept. 30,

11
 The plaintiff further misinterprets the Court’s decision as reading Toyota to require “a

medical condition . . . to impair an employee’s major life activity completely to qualify as a

disability.” Pl.’s Mot. at 6. The Court did not so read Toyota. Rather, Toyota, until the law was

changed by the ADA Amendments, imposed “a demanding standard for qualifying as disabled,”

such that “an individual must have an impairment that prevents or severely restricts the

individual from doing activities that are of central importance to most people’s daily lives.”

Smith, 2015 WL 2265100, at *18 (quoting Toyota, 534 U.S. at 197–98). The facts in Toyota

were closely analogous to the facts in the instant matter, except that the plaintiff in Toyota was

arguably more impaired by her CTS than the plaintiff here. See id. The Supreme Court held in

Toyota, however, that the plaintiff in that case was not disabled within the meaning of the pre-

Amendments ADA, Toyota, 534 U.S. at 202, leading inexorably to the Court’s conclusion that

the plaintiff in this matter was similarly not disabled, Smith, 2015 WL 2265100, at *19 (“Unlike

the plaintiff in Toyota, who was entirely unable to perform certain activities, both at work and at

home, the plaintiff in the instant matter may have experienced discomfort due to the CTS in her

right hand, but was still able to complete most of her daily tasks, at work and at home.”) (internal

citations omitted).

The plaintiff had the opportunity to argue this point during summary judgment briefing,

since it was raised and argued extensively by the defendant, see Def.’s Mem. Supp. Def.’s Mot.

Summ. J. (“Def.’s MSJ Mem.”) at 21, 29–33, ECF No. 55, but the plaintiff chose to direct much

of her “argument on this point . . . toward whether the defendant provided reasonable

accommodations for her medical condition,” Smith, 2015 WL 2265100, at *18. Rule 59(e)

2011)). The Giannattasia decision is inapposite. In Giannattasia, the Court did not consider whether CTS
constituted a disability, but only addressed whether the defendant had sufficient notice of the plaintiff’s condition.
Id. Thus, this case sheds no light on whether CTS constituted a disability under the differing standards of the pre-
Amendments ADA or the post-Amendments ADA. See generally id.

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motions are not opportunities to revisit failed litigation strategies. See Wannall v. Honeywell,

Inc., 775 F.3d 425, 430 (D.C. Cir. 2014) (affirming this Court’s decision on motion for

reconsideration by holding plaintiff to “strategic choice” that ultimately resulted in dismissal of

action); Bilzerian, 729 F. Supp. 2d at 15. Thus, in addition to being incorrect legally, the

plaintiff’s argument on this score is an attempt at the proverbial “second bite at the apple” that is

improper on a Rule 59(e) motion. 8 This argument is rejected as a ground for reconsideration.

C. The Court Properly Rejected Plaintiff’s Post-2008 Disability Allegations

The plaintiff makes three interrelated arguments that the Court erred in its treatment of

her post-2008 disability allegations. Pl.’s Mot. at 9–12. According to the plaintiff, these post-

2008 disability allegations are set out in eleven of almost 300 paragraphs in the Complaint:

paragraphs “210, 214, 215, 216, 217, 225, 229, 230, 234, 235 and 237.” Id. at 12. These eleven

paragraphs allege, in sum, that: (1) “after a year and half of interaction,” the plaintiff was not

accommodated with “compatible voice activated software, Compl., ¶ 210; (2) “[d]uring the

relevant period” and/or “[o]n various occasions between 2009 and the present,” the plaintiff

requested reassignment as a reasonable accommodation but those requests were denied, id. ¶¶

214–17; and (3) in 2009 and “[t]hroughout 2010,” the plaintiff was subject to the same medical

restrictions of not lifting or carrying over ten pounds, but “the Agency continued to ignore her

medical restrictions and failed to provide full reasonable accommodations,” id. at 225, 229, 230,

234–35, 237. The plaintiff argues that the Court erroneously ignored these post-2008 allegations

8
The plaintiff cites one case from another district for the proposition that “[t]he fact that the employer provided an
accommodation, but then revoked it is a fact for a jury to consider in deciding whether Plaintiff had a disability
under the ADA.” Pl.’s Mot. at 9 (citing Hodgetts v. City of Venice, Fla., 794 F. Supp. 2d 1265, 1275 (M.D. Fla.
2011)). Hodgetts does not stand for the proffered proposition. Hodgetts addressed whether the plaintiff was
“obviously disabled” such that he did not need to ask for reasonable accommodations. Hodgetts, 794 F. Supp. 2d at
1274–75. The Hodgetts court found sufficient evidence in the record showing that the defendant employer was
aware of the plaintiff’s disability because the employer had extended, and then removed, disability accommodations.
Id. at 1275. The issue whether the plaintiff was actually disabled, as opposed to being perceived to be disabled, was
not before the Hodgetts court. Thus, Hodgetts is inapposite.

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in considering her Rehabilitation Act claims in Counts II and IV, Pl.’s Mot. at 11–12, and,

instead, should have treated these post-2008 allegations as sufficient to overcome any deficiency

in her pre-2009 right-hand CTS disability allegations, Pl.’s Mot. at 9–10, particularly when

combined with her allegations of left-hand CTS disability. These arguments are addressed

below.

First, contrary to the plaintiff’s view, the Court correctly characterized her Rehabilitation

Act claims when stating that “the plaintiff makes no reference to any events occurring after

January 2009 in Count II or Count IV, the counts raising Rehabilitation Act claims.” Pl.’s Mot.

at 11 (quoting Smith, 2015 WL 2265100, at *19). Count II cites the following as grounds for the

plaintiff’s disability discrimination claim under the Rehabilitation Act: a hostile work

environment “beginning in July 2007,” Compl. ¶ 251; the plaintiff’s CTS, which began in March

2007, id. ¶ 254; the alleged denial by the defendant of reasonable accommodations for her CTS

and “not satisfying the work restrictions ordered by doctors for her hand/wrist condition,” id. ¶

257; the defendant’s “repeatedly denying [the plaintiff] advanced sick leave, while granting it to

similarly situated employees,” id.; and “by continuously not engaging in the interactive process

with respect to her disabilities,” id. Count IV refers only to an alleged incident in August 2007,

when the plaintiff’s supervisor allegedly bumped into the plaintiff while the plaintiff was leaving

her cubicle and unspecified retaliation caused by the defendant “continuing to discriminate

against her with regard to her disabilities,” id. ¶ 277. Thus, no date or specific incident is

referenced in either Count II or Count IV that occurred after January 1, 2009.

The plaintiff contends that the Court’s error stems from over-looking the boiler-plate

verbiage in Counts II and IV, paragraphs 248 and 271, respectively, that “adopt[] and

incorporate[] by reference” all of the previous paragraphs in the Complaint, which prior

14
paragraphs include paragraphs “210, 214, 215, 216, 217, 225, 229, 230, 234, 235 and 237,” Pl.’s

Mot. at 12, referring to post-January 2009 events. Plainly, none of the alleged incidents set out

in those cited paragraphs were expressly described in Counts II or IV as factual support for the

legal claims for violation of the Rehabilitation Act.

In any event, the Court addressed the events alleged in paragraphs 224 through 239 of the

Complaint and found them to be insufficient to raise a claim for hostile work environment or

retaliation. See Smith, 2015 WL 2265100, at *19. 9 The Court noted that these events were not

referred to in the EEO Complaint the plaintiff filed in 2007 and, to the extent those paragraphs

alleged discrete events occurring after January 1, 2009, the plaintiff provided no evidence that

she had taken the necessary steps to exhaust her remedies as to those events. Id. 10

Second, even if her right-hand CTS did not qualify as a disability pre-ADA Amendments,

the plaintiff posits that the Court “erred in dismissing Plaintiff’s Rehabilitation Act claims after

January 1, 2009,” when the ADA Amendments took effect, “by holding that she was required to

initiate a new EEO complaint over such claim through the Agency,” Pl.’s Mot. at 9, and by not

treating the “Defendant’s duty to accommodate Plaintiff’s CTS” as “continu[ing] into January

9
The five paragraphs in the Complaint cited in the plaintiff’s motion that are not discussed directly in the Mem. Op.,
namely, paragraphs 210 and 214–17, describe alleged failures to accommodate the plaintiff’s CTS with “compatible
voice activated software” or reassignment to the plaintiff’s preferred office and, with the exception of paragraph
217, contain no dates, which would alert the reader these paragraphs pertain to post-2009 events. Compl. ¶¶ 210,
214–17. Ultimately, however, none of these paragraphs contradict the Court’s holding that the plaintiff had failed to
plead, let alone come forward with specific evidence, that she had exhausted her administrative remedies as to the
alleged events that occurred after January 1, 2009. Smith, 2015 WL 2265100, at *19.
10
The plaintiff contends that the Court’s citation to Kapache v. Holder, 677 F.3d 454, 461 n.7 (D.C. Cir. 2012) does
not support the Court’s decision because “all of the claimed disability discrimination” in Kapache preceded the
ADA Amendments. Pl.’s Mot. at 10. The plaintiff misreads the Mem. Op. Kapache was cited for the proposition
that “the pre-2009 definitional standard” for what constitutes a disability “applies to the vast majority of conduct
alleged in this matter.” Smith, 2015 WL 2265100, at *18. The Kapache court held that because the events at issue
in Kapache occurred before the ADA Amendments took effect, the pre-Amendments definition of disability applied.
Kapache, 677 F.3d at 461 n.7. Consequently, the Court’s application of the pre-ADA Amendments definition of
“disability” to the pre-2009 conduct is entirely supported by Kapache. See Smith, 2015 WL 2265100, at *18
(“Thus, the pre-2009 definition of ‘disability’ applies to the alleged conduct that occurred prior to January 1,
2009.”).

15
2009, when the [post-Amendments ADA] governed its actions,” id. at 10. According to the

plaintiff, “a court complaint ‘may encompass any kind of discrimination like or related to

allegations alleged in the [EEOC] charge and growing out of such allegations during the

pendency of the case before the Commission,’” Pl.’s Mot. at 9 (quoting Sanchez v. Standard

Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970)), and, consequently, the plaintiff was not

required to exhaust her administrative remedies for any claims after January 1, 2009, when her

CTS might have been covered by the Rehabilitation Act, see Smith, 2015 WL 2265100, at *19

(assuming, without deciding, that the plaintiff “could prove she were disabled within the

meaning of the ADA Amendments” beginning in 2009).

The Court addressed and rejected this argument in its opinion, noting that every incident

allegedly occurring after January 1, 2009, when the ADA Amendments took effect, was “discrete

from the issues raised in her 2007 EEO Complaint.” Smith, 2015 WL 2265100, at *19. To the

extent that the plaintiff argues that the defendant had a continuing “duty to accommodate

Plaintiff’s CTS,” Pl.’s Mot. at 10, the plaintiff is mistaken: the defendant had no duty to

accommodate the plaintiff’s CTS prior to January 1, 2009, since the plaintiff was not disabled

under the meaning of the Rehabilitation Act during that period. See id. The defendant could

have no continuing “duty,” since it had no “duty” in the first instance. As a result, the plaintiff

was required to initiate a new EEOC complaint when her disability—assuming, arguendo, that

her CTS is a disability under the post-Amendments version of the ADA—manifested itself. As

the Court noted in Smith, the plaintiff “does not plead, nor has she submitted any evidence after

discovery, that she made any attempt to pursue, administratively, any Rehabilitation Act claims

based on events occurring in 2009 through the appropriate EEO channels.” Smith, 2015 WL

16
2265100, at *19. While the Court did not elaborate on the basis for this conclusion, the

reasoning is dictated by applicable precedents.

The plaintiff’s position appears to be that even if her right-hand CTS did not constitute a

disability under the pre-Amendments Rehabilitation Act, since this condition persisted into 2009,

when it may have arguably qualified as an actionable disability, all of the defendant’s conduct

should be considered in support of her claim. See Pl.’s Mot. at 9–10 (arguing the defendant’s

“duty to accommodate Plaintiff’s CTS continued into January 2009, when the [ADA

Amendments] governed its actions”). The plaintiff’s position would result in giving the ADA

Amendments retroactive effect, which is barred by binding case law. See Lytes v. D.C. Water &

Sewer Auth., 572 F.3d 936, 940 (D.C. Cir. 2009).

The D.C. Circuit in Lytes examined the ADA Amendments and noted that Congress’

“decision to delay the effective date” of the Amendments “would make no sense” if it was to

apply retroactively. 572 F.3d at 940. The Lytes court held that the ADA Amendments

“broadened the class of employees entitled to reasonable accommodation.” Id. at 942.

Consequently, “[t]o hold the [defendant’s] refusal to accommodate [the plaintiff] was unlawful

under the new, broader [statute] but not under the pre-Amendments ADA [] would be to give the

[ADA Amendments] the disfavored retroactive effect.” Id.

The Lytes logic is dispositive in the instant matter. The plaintiff was not disabled under

the Rehabilitation Act in effect when she made her EEO Complaint in 2007 or when she made

requests for reasonable accommodation prior to January 1, 2009. Smith, 2015 WL 2265100, at

*19. Thus, the defendant’s “settled expectation[]” prior to January 1, 2009, was that the plaintiff

was not entitled to any reasonable accommodation. See Lytes, 572 F.3d at 940. The plaintiff had

no legally cognizable claim under the Rehabilitation Act until, arguably, January 1, 2009. If, as

17
the plaintiff contends, the plaintiff had no obligation after January 1, 2009, when the ADA

Amendments took effect, to request reasonable accommodations under the new standard, and

instead was allowed to rely on the previous, invalid, request, the ADA Amendments would be

given the prohibited retroactive effect by imposing a new duty on the defendant on January 1,

2009 that did not exist on December 31, 2008. Consequently, to “protect settled expectations,”

id., the plaintiff was required to request reasonable accommodations, and be evaluated for her

eligibility for such accommodations, when the law changed on January 1, 2009 and, arguably,

included her CTS within the meaning of the term “disabled.”

This conclusion is further bolstered by the Supreme Court’s decision in National

Railroad Passenger Corp. v. Morgan (Morgan), 536 U.S. 101 (2002). In Morgan, a Title VII

discrimination and retaliation case, the Supreme Court held that “[e]ach discrete discriminatory

act starts a new clock for filing charges alleging that act,” and “[t]he existence of past acts and

the employee’s prior knowledge of their occurrence [] does not bar employees from filing

charges about related discrete acts so long as the acts are independently discriminatory and

charges addressing those acts are themselves timely filed.” 536 U.S. at 113. As explained

supra, any acts that occurred prior to January 1, 2009 could not have been discriminatory based

on the Rehabilitation Act because the plaintiff was not disabled within the meaning of the

Rehabilitation Act and, therefore, had no rights under the Act.

The plaintiff refers to the defendant’s action as “continuing,” see, e.g., Pl.’s Mot. at 9–10,

but the Morgan Court explicitly rejected the so-called “continuing violations” doctrine with

respect to discriminatory actions where a “[d]iscrete act[] such as termination, failure to promote,

denial of transfer, or refusal to hire” can be identified, Morgan, 536 U.S. at 114. The majority

view on this Court is that Morgan requires “a plaintiff alleging discrete acts of discrimination or

18
retaliation—including those filed after an administrative complaint—[to] exhaust his

administrative remedies with respect to the later-occurring incidents even if they are related to

the claims in the administrative complaint.” Mount v. Johnson, 36 F. Supp. 3d 74, 84 (D.D.C.

2014) (collecting cases and noting that “[t]he D.C. Circuit has repeatedly declined to weigh in on

this matter”).

The plaintiff urges this Court to follow the minority view in this district that “appl[ies]

the D.C. Circuit’s pre-Morgan ‘like or reasonabl[y] related’ test articulated in Park v. Howard

University, which permits unexhausted discrimination and retaliation claims to proceed as long

as the claims are ‘like or reasonably related to the allegations of [a prior administrative] charge.’”

Hicklin v. McDonald, 2015 WL 3544449, at *3 (D.D.C. June 8, 2015) (internal citation omitted);

Pl.’s Mot. at 9. This Court declines the invitation and has already held that the plaintiff was

required to exhaust her administrative remedies as to the post-2008 incidents, conforming to the

majority view. Smith, 2015 WL 2265100, at *19.

Regardless, under either the majority or the minority view of the Supreme Court’s

holding in Morgan, the plaintiff’s claim fails. The plaintiff’s 2007 EEO Complaint refers only to

“the July 20, 2007 memorandum ‘requiring [the plaintiff] to use sick or annual leave, or to use

leave without pay (LWOP) to cover absences associated with the 30-day no keyboarding

restriction invoked by her physician,’ and the August 14, 2007 incident where the plaintiff

‘allege[d] that her 1st Line Supervisor bumped her while existing [sic] her cubicle.’” Smith,

2015 WL 2265100, at *9 (internal citations omitted). The plaintiff does not plead, nor has she

offered any evidence, that she exhausted her administrative remedies as to the discrete acts she

alleges occurred after January 1, 2009, including the alleged search of her DOJ computer,

Compl. ¶ 231, the October 9–10, 2009 instruction regarding the time she was to be at her desk

19
and reporting to her superiors about leaving the building, Pl.’s MSJ Opp’n at 19–20, 11 or the

November 9, 2009 “memorandum rejecting [the plaintiff’s] doctor’s medical restrictions,” id. at

18. Under the majority view, therefore, these incidents were not administratively exhausted and

cannot be the basis of any complaint of discrimination or retaliation. See Mount, 36 F. Supp. 3d

at 84.

Under the minority view, the aforementioned post-January 1, 2009 conduct is not “like or

reasonably related to” the claims in the plaintiff’s July 2007 EEO Complaint. “[C]ourts that

adhere to this view have held that ‘[a]t a minimum, the . . . claims must arise from ‘the

administrative investigation that can reasonably be expected to follow the charge of

discrimination,’ but ‘[c]laims of [] ideologically distinct categories’ of discrimination and

retaliation . . . are not ‘related’ simply because they [arise] out of the same incident.’” Hicklin,

2015 WL 3544449, at *4 (internal citations omitted). In the instant matter, the post-2008 events

complained of neither arose out of the same incident nor could have been “reasonably expected

to follow the charge of discrimination.” See id. None of the incidents complained of had

anything to do with the 2007 memorandum instructing the plaintiff to use personal leave or

LWOP until she could return fully to her duties, nor did they have anything to do with the

bumping incident in August 2007. The only links between the post-2008 alleged events and the

2007 EEO Complaint are that the supervisor who instructed the plaintiff to be at her desk when

her shift started was the same in October 2009 as in July and August 2007, and the plaintiff’s

belief that the alleged hard drive search on her DOJ computer had something to do with her EEO

complaints. See Pl.’s MSJ Opp’n at 19–20. The plaintiff makes no attempt to show how her

post-2008 allegations, namely, increased monitoring and rejection of the plaintiff’s medical

11
The October 9–10, 2009 incident is not mentioned in the plaintiff’s Complaint. See generally Compl.

20
restrictions after the Department of Labor’s Office of Workers’ Compensation Programs

determined the plaintiff was not eligible for workers’ compensation, could have been reasonably

expected to arise from the administrative investigation of her complaint about the August 2007

bumping incident and the July 2007 memorandum. See generally Pl.’s MSJ Opp’n; Pl.’s Mot.

In short, under either the majority or the minority view, the plaintiff failed to show that she

exhausted administrative remedies as to the post-2008 incidents or that she was otherwise

excused from doing so. 12

Even were the plaintiff correct on this point, this argument, similarly to her other

arguments, is merely an attempt to relitigate issues that have already been resolved, which is

improper on a Rule 59(e) motion. 13 See Exxon, 554 U.S. at 485 n.5; Messina, 439 F.3d at 759.

This argument is rejected as a ground for reconsideration.

D. The Court Correctly Applied Title VII Law To Plaintiff’s Retaliation and
Hostile Work Environment Claims

The plaintiff made little effort to distinguish the allegations underlying her Title VII

claims from those underlying her Rehabilitation Act claims, see supra note 3; see generally

Compl., but to the extent that those claims could be distinguished, they were each evaluated,

12
As for the related question of whether the plaintiff exhausted her administrative remedies as to her left-hand CTS,
the plaintiff argues that this condition, which developed in December of 2008, was administratively exhausted since
her left-hand CTS was “like or related to” the issues raised in her 2007 EEO Complaint pertaining to her right-hand
CTS. Pl.’s Mot. at 12. The plaintiff did not raise this argument previously and, thus, this argument is waived.
Patton Boggs LLP, 683 F.3d at 403. Even were it not waived, the argument is untenable, since the right-hand CTS
claim that was exhausted referred only to events that occurred in 2007, well before the plaintiff suffered any left-
hand CTS symptoms. Pl.’s Mot. at 12 (noting plaintiff’s left-hand CTS “developed in December 2008”).
Consequently, the plaintiff’s left-hand CTS was never administratively exhausted, and the plaintiff presented no
evidence that she even attempted to exhaust administratively this newly claimed disability that arose eighteen
months after her properly exhausted claim regarding her right-hand CTS. Smith, 2015 WL 2265100, at *19.
13
If the Court were to consider the unexhausted claims, the outcome would not change. None of the additional
alleged incidents discussed by the plaintiff are anything more than the “immaterial slights” and “workplace
disagreements” that “are not actionable under” civil rights laws. See Baird v. Gotbaum, 2015 WL 4079546, at *4
(D.C. Cir. July 7, 2015) (internal quotation marks and citations omitted). Although the plaintiff may “feel singled
out” because of her past history with the defendant, Pl.’s MSJ Opp’n at 20, this subjective feeling is not sufficient
under the objective test for a hostile work environment or for retaliation to raise the plaintiff’s complaints to those
actionable under the Rehabilitation Act.

21
both individually and in the totality of the circumstances, in the Mem. Op., Smith, 2015 WL

2265100, at *20–23. The plaintiff disagrees with the assessment in the Mem. Op. of the

plaintiff’s Title VII retaliation claims as not raising a colorable claim of an adverse employment

action, Pl.’s Mot. at 19–21, and the finding that the plaintiff’s allegations were insufficient to

raise a hostile work environment claim, id. at 13–19. The plaintiff’s disagreement, unsupported

by any new evidence, change in law, or evidence of clear error, is insufficient to warrant a

reconsideration of the decision.

The plaintiff argues that the Court improperly found that the plaintiff had failed to allege

any adverse employment action colorable as a Title VII retaliation action. Pl.’s Mot. at 19–20.

The plaintiff, not the Court, is mistaken. The Court held that all of the actions alleged by the

plaintiff, taken as true, would not meet the objective standard required to “dissuade[] a

reasonable worker from making or supporting a charge of discrimination,” Smith, 2015 WL

2265100, at *23, as required for an actionable retaliation claim, Burlington N. & Santa Fe Ry.

Co. v. White, 548 U.S. 53, 68 (2006). As the Court noted, “the plaintiff may have been upset by

some of the incidents that occurred between 2007 and 2009,” but “[u]nder an objective standard,

none of the plaintiff’s allegations rise to the level of an adverse action.” Smith, 2015 WL

2265100, at *23.

Once again, the plaintiff’s argument is not legally colorable and was thoroughly

addressed in initial summary judgment briefing. Def.’s MSJ Mem. at 13–20; Pl.’s MSJ Opp’n at

26–32. Thus, the plaintiff’s instant motion for reconsideration amounts to an attempt to relitigate

a lost argument. See Exxon, 554 U.S. at 485 n.5; Messina, 439 F.3d at 759. This argument is

rejected as a ground for reconsideration.

22
 Finally, the plaintiff’s argument that the Court failed to consider her allegations regarding

a hostile work environment in the totality of the circumstances is belied by the decision.

Specifically, as the plaintiff concedes, Pl.’s Mot. at 13, the Court recognized that “hostile work

environment claims must be examined in light of the totality of the circumstances,” and found

that the plaintiff had “failed to provide admissible evidence of any discriminatory actions as

support for her allegations.” Smith, 2015 WL 2265100, at *22. Upon detailed examination of

the plaintiff’s accumulated allegations underlying her race discrimination claim, the Court did

consider the events in the totality of the circumstances and found no causal link between the

hostile work environment claims and the plaintiff’s race. See id. It also found that, under the

required objective standard, there were no “tangible workplace consequences” that could

“support a hostile work environment claim on summary judgment,” and that the plaintiff

presented no colorable “evidence from which a reasonable jury could infer that she was

subjected to a hostile work environment on the basis of her race.” Id. Indeed, the D.C. Circuit

recently reaffirmed that even a large number of “objectively immaterial . . . allegations” do not

create a hostile work environment. Baird v. Gotbaum, 2015 WL 4079546, at *4–5 (D.C. Cir.

July 7, 2015). None of the events complained of by the plaintiff rise above the “petty insults,

vindictive behavior, and angry recriminations” that courts have held, repeatedly, do not

constitute actionable Title VII claims. Id. at *4 (quoting Brooks v. Grundmann, 748 F.3d 1273,

1277–78 (D.C. Cir. 2014)). Her argument is, therefore, rejected as a ground for reconsideration.

* * *

To sum up, most of the plaintiff’s arguments amount to improper attempts to relitigate

issues already decided by this Court and, therefore, constitute improper grounds on which to

grant a Rule 59(e) motion. Moreover, in light of the D.C. Circuit’s opinion in Baird, the

23
plaintiff’s litany of “immaterial slights” is precisely the type of “long list of trivial incidents” that

“is no more a hostile work environment than a pile of feathers is a crushing weight.” Baird,

2015 WL 4079546, at *4; see also Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 577 (D.C. Cir.

2013).

IV. CONCLUSION

The decision whether to grant a Rule 59(e) motion is left to the sound discretion of the

District Court and is reviewed only for abuse of that discretion. Mohammadi, 782 F.3d at 17;

Dyson, 710 F.3d at 420. Plaintiffs seeking reconsideration based on clear error must, therefore,

meet a very high bar. The plaintiff has failed to clear that bar, and has presented no other new

evidence or asserted a change in law to alter the Court’s decision. Consequently, the plaintiff’s

motion is denied.

An Order consistent with this Memorandum Opinion will issue contemporaneously.

Digitally signed by Judge Beryl
A. Howell
DN: cn=Judge Beryl A. Howell,
o=United States District Court,
ou=District of Columbia,
email=Howell_Chambers@dcd.
uscourts.gov, c=US
Date: 2015.07.15 17:25:22 -04'00'
Date: July 15, 2015 __________________________

BERYL A. HOWELL
United States District Judge

24