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Ward v. U.S. Department of Commerce

United States District Court, D. Maryland, Southern Division

January 4, 2017

DONNA M. WARD, Plaintiffs,
v.
U.S. DEPARTMENT OF COMMERCE et al. Defendants.

          MEMORANDUM OPINION

          George J. Hazel United States District Judge

         In the 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").[1] 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.

          I. BACKGROUND

          This 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.

         Plaintiff 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."[2] 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.

         In its first Memorandum Opinion, the Court held that Count I was barred for failure to exhaust.[3] See ECF No. 54 at 3[4] ("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. 56.

         II. STANDARD OF REVIEW

         Rule 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, 2015)).

         "[R]econsideration 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. 2001)).

         III. ANALYSIS

          In her 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.

         A. Exhaustion

         Plaintiff 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 ...

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