UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________
)
RODIRIGO A. PATZY, )
)
Plaintiff, )
)
v. ) Civil Action No. 16-507 (RMC)
)
FRED P. HOCHBERG, )
President & Chairman, Export-Import )
Bank of the United States, )
)
Defendant. )
___________________________________ )
MEMORANDUM OPINION AND ORDER
On 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 Reconsideration.
I. LEGAL STANDARD
Federal 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
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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
citation omitted).
II. ANALYSIS
This 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 ruling.
In the 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,
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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).
A 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).
In 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
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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 553-54.
Mr. 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 eligibility.
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Mr. 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 allegations in
the complaint must establish at least an inference of such a connection. There is none here. It is
accordingly
ORDERED that Plaintiff’s Motion for Reconsideration [Dkt. 17] is DENIED.
Date: July 20, 2017 /s/
ROSEMARY M. COLLYER
United States District Judge
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