United States District Court, D. Maryland, Southern Division
DONNA M. WARD, Plaintiffs,
U.S. DEPARTMENT OF COMMERCE et al. Defendants.
J. Hazel United States District Judge
Court's previous Memorandum Opinion and Order dated Aug.
2, 2016, the Court dismissed the claims of Plaintiff Donna M.
Ward ("Plaintiff or "Ms. Ward") against
Defendants U.S. Department of Commerce, Bureau of the Census
(''Census"), Stephen Taylor and Claudette
Bennett in their official and personal capacities, and
William Savino in his official capacity (collectively,
"Defendants"). Presently pending before the Court is
Plaintiff's Motion for Reconsideration of Dismissal and
Denial of Leave to Amend, ECF No. 56. No hearing is
necessary. See Loc. R. 105.6. For the reasons stated
herein. Plaintiffs Motion for Reconsideration is denied.
case arises out of Ms. Ward's removal from federal
employment in February 2011. See ECF No. 20
¶11. Ms. Ward was employed as a Management Analyst at
the Bureau of the Census in Suitland, Maryland. ECF No. 20
¶ 18; ECF No. 25-1 at 3. On February 7, 2011, Stephen
Taylor, "a Census employee with the authority to . . .
approve personnel actions against Ward, '' issued a
Notice of Removal to Plaintiff because 'Taylor alleged
that on 87 separate dates beginning on September 2009
thr[ough] October 2010, Ward failed to work her required
8-hour tour, despite receiving pay amounting to her hourly
rate of basic pay multiplied by 8 hours." ECF No. 20
¶ 5. Ms. Ward does not deny that she periodically left
her work station, but maintains that she "relied on and
benefitted from flexing her arrival and departure times and
taking leave for less than a full workday" in order to
care for her daughters with special needs, and claims that
Defendants were merely "harassing" her. ECF No. 20
at 7, 9. Ms. Ward initiated an Equal Employment Opportunity
("EEO") charge on February 16, 2011. Id.
¶ 6. The Office of Civil Rights ("OCR")
investigated the charge and found no violations of federal
anti-discrimination laws. Id. ¶ 10. On March 8,
2013, Ms. Ward appealed the decision of OCR to the Merit
System Protection Board ("MSPB"). Id.
¶ 14. A half-day hearing was held on October 29, 2013
before Administrative Judge Sarah P. Clement ("AJ
Clement"). Id. AJ Clement issued an initial
decision on September 5, 2014, upholding Ms. Ward's
removal. Id.; Administrative Record ("AR")
at AR-000009-000021. A three-member panel of the MSPB
affirmed the decision in a final order on February 20, 2015.
Id.; AR-000954-000962. Plaintiff filed a Complaint
in this Court on March 20, 2015, ECF No. 1, and an Amended
Complaint on November 25, 2015, ECF No. 20.
brought a total of four counts against Defendants.
See ECF No. 20. In Count I, Plaintiff alleged
Disability Harassment Based on Family Caregiving under the
Americans with Disabilities Act ("ADA'"), 42
U.S.C. § 12101 et seq., based upon purported
"unfavorable treatment" of Ms. Ward due to her need
to care for two daughters with "special needs."
Id. at 13-14. In Count II, Plaintiff alleged
Violation of the Rehabilitation Act, 29 U.S.C. § 701
et seq., based upon retaliation or "reprisal
for opposing disability discrimination, and for filing a
charge of disability discrimination." Id. at
14-15. In Count III, Plaintiff alleged Violation of the Civil
Service Reform Act ("CSRA"), 5 U.S.C. § 1201
et seq., based upon Defendants"
"prohibited personnel practices, " including
"discriminating] on the basis of handicapping
condition." ''considering] any recommendation or
statement.. . for any personnel action . . . [without having]
personal knowledge." and "tak[ing] ... [an adverse]
personnel action . . . because of any disclosure of
information by an employee . .. which the employee . . .
reasonably believes evidences any violation of any law, rule,
or regulation." Id. at 15-16. In Count IV,
Plaintiff alleged violation of "Maryland common
law" for "intentional or negligent reckless
infliction of physical and emotional distress."
Id. at 16. Defendant Census filed a Motion to
Dismiss the Amended Complaint, or Alternatively, for Summary
Judgment, ECF No. 25. and Defendants Taylor, Bennett, and
Savino filed a Motion to Dismiss for Lack of Jurisdiction and
Failure to State a Claim, ECF No. 44.
first Memorandum Opinion, the Court held that Count I was
barred for failure to exhaust. See ECF No. 54 at
("To the extent that Plaintiff seeks to raise
discrimination claims in addition to her claim of
retaliation, such claims are subject to dismissal because
Plaintiff failed to exhaust her administrative remedies by
withdrawing those claims before the MSPB."). Count II
was dismissed for failure to allege sufficient facts showing
causality between "protected activity" and the
"adverse employment action, " and for failure to
establish "that the employer's proffered explanation
[for the adverse action] is pretext." Id. at
2-3. The "non-discrimination claims" within Count
III were dismissed for failure to show that the decision of
the MSPB was arbitrary and capricious, and the
"discrimination claims" within Count III were
dismissed for failure to exhaust. Id. at 2. Finally,
Count IV was dismissed because Plaintiffs common law tort
claims were precluded by the Civil Service Reform Act
('"CSRA"), 5 U.S.C. § 1201, et
seq., which is the "exclusive remedy for federal
employees seeking to challenge adverse employment actions
taken against them.'" ECF No. 54 at 3. Thus,
Defendants" Motions, ECF Nos. 25 and 44. were granted,
and the action was dismissed with prejudice. Plaintiff now
moves for reconsideration under Fed.R.Civ.P. 59(e). ECF No.
STANDARD OF REVIEW
59(e) allows a party to file a motion to alter or amend a
judgment no later than 28 days after the entry of the
judgment. Fed.R.Civ.P. 59(e); see also Ford v. United
States, No. GJH-11-3039, 2016 WL 3430673, at*1 (D. Md.
Mar. 16, 2016). One purpose of Rule 59(e) is to "permit
a district court to correct its own errors, "sparing the
parties and the appellate courts the burden of unnecessary
appellate proceedings/" Pac. Ins. Co. v. Am. Nat.
Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998).
However, the Fourth Circuit recognizes only three grounds on
which a court may alter or amend an earlier judgment:
"(1) to accommodate an intervening change in controlling
law; (2) to account for new evidence not available at trial;
or (3) to correct a clear error of law or prevent manifest
injustice.'' United States ex rel. Becker v.
Westinghouse Savannah River Co.. 305 F.3d 284, 290 (4th
Cir. 2002) (citing Pac. Ins. Co. v. Am. Nat 7
Fire Ins. Co.. 148 F.3d 396, 403 (4th Cir. 1998)).
"Clear error or manifest injustice occurs where a court
"has patently misunderstood a party, or has made a
decision outside the adversarial issues presented to the
Court by the parties, or has made an error not of reasoning
but of apprehension . ..'" Wagner v.
Warden, No. ELH-14-791. 2016 WL 1169937. at *3 (D. Md.
Mar. 24, 2016) (quoting King v. McFadden, No.
1:14-cv-00091-JMC, 2015 WL 4937292, at *2 (D.S.C. August 18,
of a judgment after its entry is an extraordinary remedy
which should be used sparingly." Pac Ins. Co.,
148 F.3d at 403 (citation omitted). A Rule 59(e) motion
"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.
(citation omitted). "[M]ere disagreement1' with the
court's ruling does not support a motion to alter or
amend the judgment. Hutchinson v. Staton, 994 F.2d
1076, 1082 (4th Cir. 1993). Such limitations are necessary
because "[w]ere it otherwise, then there would be no
conclusion to motions practice, each motion becoming nothing
more than the latest installment in a potentially endless
serial that would exhaust the resources of the parties and
the court-not to mention its patience." Pinney v.
Nokia, Inc., 402 F.3d 430, 453 (4th Cir. 2005) (quoting
Potter v. Potter, 199 F.R.D. 550, 553 (D. Md.
Motion for Reconsideration, Plaintiff does not allege any
intervening changes in controlling law, nor does she contend
that new evidence has come to light. Rather, Plaintiff
contends that the Court "erred." because 1)
"Plaintiff properly raised harassment and whistleblowing
during the administrative proceeding." 2)
"Defendants are not entitled to summary judgment on
claim of retaliation for protected EEO activity/' 3) the
Court did not ''subject[j plaintiffs factual
assertions to trial de novo, " 4) the Court
"dismiss[ed] plaintiffs state tort claim against the
individual capacity defendants, " and 5) the Court
"den[ied] Ward's motion for leave to file a second
amended complaint." ECF No. 56. The Court will address
these contentions, in turn.
argues that, contrary to the Court's finding that she
"withdrew" her claims of discrimination before the
MSPB, she in fact “raised the issue of prohibited
discrimination and whistleblowing.'" ECF No. 56 at
3. Upon closer review, however, Plaintiff seems to merely
disagree with the Court's analysis of the Administrative
Judge's prehearing conference, held on September 24,
2013. At this prehearing conference, AJ Clement held:
The claim of EEO retaliation is the only affirmative defense
the appellant is raising, despite language in her previous
submissions. including her prehearing submission, that
appears to suggest she was also raising claims of
whistleblowing and discrimination. When pressed for details,
however, the appellant's representative abandoned these
suggested claims ...