Burgess v. System High Corporation et al

Filing 44

MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 3/14/2016. (dass, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SUSAN BURGESS
Plaintiff,
v.

Civil Action No. ELH-14-3895

SYSTEM HIGH CORPORATION,
et al.
Defendants.
MEMORANDUM OPINION
This Memorandum Opinion addresses plaintiff Susan Burgess’s “Motion for
Reconsideration of the Memorandum Order Granting Defendant John McHugh’s Motion to
Dismiss.” ECF 33, “Motion to Reconsider.” For the reasons that follow, I shall deny the
Motion to Reconsider.
I. Procedural Background
In a First Amended Complaint filed June 16, 2015 (ECF 18, “Amended Complaint”),
Burgess sued her former employer, System High Corporation (“SHC”), and John McHugh,
Secretary, United States Army (the “Army”), alleging employment discrimination, in violation of
Title VII of the Civil Rights Act of 1964, codified, as amended, at 42 U.S.C. § 2000e et seq.;
violation of the Americans With Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.; and
violation of the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq.1 In particular, Burgess
claims discrimination based on sex and disability and in retaliation for her opposition to
perceived unlawful acts. ECF 18, Amended Complaint.
1

Plaintiff initially filed suit on December 15, 2014 (ECF 1) against Chuck Hagel,
Secretary, U.S. Department of Defense. After Hagel moved to dismiss (ECF 12), McHugh was
substituted for Hagel in the Amended Complaint. See ECF 18. In addition, plaintiff removed
the ADA claim as to the Army but added the claim under the Rehabilitation Act. Id.

SHC filed an answer to the Amended Complaint. ECF 20. But, the Army moved to
dismiss, pursuant to Fed. R. Civ. P. 12(b)(1). ECF 25. In the Army’s supporting memorandum
(ECF 25-1) (collectively, the “Motion”), the Army argued that plaintiff failed to exhaust her
administrative remedies, in that she never filed a complaint with the Army’s Equal Employment
Opportunity (“EEO”) office. ECF 25-1 at 6–8. In support of its Motion, the Army submitted
several exhibits, including the Declaration of Roxanne Conley (ECF 25-2, “Conley
Declaration”), a civilian employee in the Army’s EEO office in Aberdeen, Maryland. Plaintiff
opposed the Motion to Dismiss (ECF 26, “Opposition”), and filed exhibits in support of her
Opposition. ECF 26-1, 26-2. The Army filed a Reply (ECF 27), along with another exhibit.
ECF 27-1.
By Memorandum Opinion and Order dated November 10, 2015 (ECF 28; ECF 29), this
Court granted the Army’s Motion to Dismiss, on the ground that plaintiff had failed to exhaust
administrative remedies before filing suit in federal court. ECF 28 at 9–20; ECF 29. On
December 8, 2015, plaintiff filed the pending Motion to Reconsider (ECF 33) pursuant to Fed. R.
Civ. P. 59(e) and 60(b) and Local Rule 105.10. Id. at 1. Plaintiff also filed an exhibit in support
of her Motion, which includes a formal discrimination complaint that she filed with the Army’s
EEO office on November 16, 2015. ECF 33-1, “Formal Discrimination Complaint.”
On January 11, 2016, the Army filed an Opposition to Plaintiff’s Motion to Reconsider.
ECF 37, “Opposition.”

Thereafter, plaintiff replied.

ECF 38, “Reply.” An exhibit

accompanying plaintiff’s Reply includes a final decision from the Army EEO office, which
dismissed plaintiff’s Formal Discrimination Complaint on January 19, 2016. ECF 38-1, “EEO
Dismissal” at 1–2. With the consent of plaintiff (ECF 39), and with leave of court (ECF 40), the

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Army filed a Surreply in Opposition to Plaintiff’s Motion for Reconsideration. ECF 41; see also
Local Rule 105.2(a).
No hearing is necessary to resolve the Motion to Reconsider. See Local Rule 105.6. For
the reasons stated below, I shall deny the Motion to Reconsider.
II. Factual Background2
Plaintiff was employed by SHC for approximately four months, from September 27,
2013, until her termination on or about January 16, 2014. See ECF 18, ¶¶ 12, 40, Amended
Complaint. She contends that the federal government was her “joint employer” (id. ¶ 17), based
on a contract between SHC and the Army, to which Burgess was assigned, by which SHC
provided technology protection services at the Army’s facilities at Aberdeen Proving Ground
(“APG”) in Aberdeen, Maryland. ECF 18, ¶ 6.
The events relevant to plaintiff’s suit occurred while plaintiff was working at APG, in the
capacity of “Technology Protection Engineer (TPE) – Subject Matter Expert (SME),” at the
Army Research and Technology Protection Center. ECF 18, ¶ 12; see also ECF 25-1 at 2. She
was supervised by two civilian employees of the Army: Steven Chimchirian and Mike Burris.
ECF 18, ¶¶ 15, 16. Burgess contends that, based on their degree of control, the Army became
her joint employer. Id. ¶ 17.3
According to plaintiff, Chimchirian and Burris made disparaging remarks about her
gender, her disabilities (severe osteoarthritis and degenerative disc disease), and her requests for
accommodations. Id. ¶¶ 23, 24, 25, 26, 27. Burgess also alleges that SHC placed her on a

2

For the convenience of the parties, I have set forth the factual summary contained in my
earlier Memorandum Opinion, ECF 28 at 2–7.
3

For the purpose of the Motion, the Army does not contest this assertion. ECF 25-1 at 2
n.1, Motion.
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Performance Improvement Plan in December 2013, based on a bogus assessment by
Chimchirian. Id. ¶ 37. Then, in January 2014, SHC terminated plaintiff’s employment. Id. ¶ 40.
Burgess maintains, however, that at all times she met or exceeded her “legitimate job
expectations.” Id. ¶ 42.
As to SHC, on or about June 2, 2014, plaintiff filed a Charge of Discrimination with the
U.S. Equal Employment Opportunity Commission (“EEOC”), based on gender and disability.
Id. ¶ 8. On September 16, 2014, the EEOC issued a Notice of Right to Sue as to SHC. Id. ¶ 10.
As to the Army, plaintiff alleges that in January 2014 she contacted the Army’s EEO
office at APG “to complain about the discriminatory and retaliatory actions of [the] Army[.]” Id.
¶ 9. Plaintiff first spoke with Ashley L. Reid, the Complaints Manager at the Army’s EEO
office. ECF 26-1 at 1, Affidavit of Susan Burgess (“Burgess Affidavit”). Burgess complained
about her “boss,” Chimchirian, and Reid noted that he “is a civilian. . . .” ECF 26-1 at 3 (email
from Reid to Conley dated 1/17/14). Reid then emailed Conley, the Army’s EEO specialist at
APG, and advised that Burgess “believes she is being discriminated against based upon her
disability.” Id. Plaintiff asserts: “[T]he EEO office for the U.S. Army at APG documented her
complaint and referred her to the Baltimore EEOC Office, advising that she was ‘not a federal
employee’ and would not process her complaint of discrimination.” ECF 18, ¶ 9, Amended
Complaint.
The parties agree that plaintiff conferred by telephone with Conley regarding her
discrimination claims.

See ECF 25-2, Conley Declaration; ECF 26-1, Burgess Affidavit.

However, the parties disagree about the content of the discussions. According to the Army,
Conley explained the Army’s EEO process to plaintiff, and also provided plaintiff with
information as to how to pursue a claim against SHC with the EEOC. ECF 25-2, ¶¶ 2, 5, 6,

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Conley Declaration. Moreover, Conley maintains that she did not discourage plaintiff from
initiating a complaint against the Army. Id. ¶ 5. Conley expressly denies that she advised
plaintiff that she (Burgess) was not an Army employee for purposes of the federal discrimination
laws (ECF 25-2, ¶ 4), and avers that she “never make[s] a determination as to whether a person is
[a] joint employee” of the Army. Id. ¶ 6. Conley also disputes that she told Burgess that she had
to file her complaint against the Army with the EEOC. Id. ¶ 7. Conley claims that, when she
talked to Burgess, plaintiff “was already aware of and inclined to file her claim at the
EEOC . . . .” ECF 25-2, ¶ 7.
Burgess received an email from Conley on January 23, 2014, at 7:44 a.m. It stated, in
part, ECF 26-1 at 5 (emphasis added):
As discussed yesterday telephonically, attached is the Information Inquiry with
the information on how to file an EEO complaint with the Equal Employment
Opportunity Office in Baltimore, Maryland.
There [sic] website is:
http://www.eeoc.gov/field/baltimore/index.cfm
At the website they have
information pertaining to how to file. Also you may call them . . . .
If you need additional information or have any questions/concerns, please don’t
hesitate to contact our office. As a reminder you have 45 calendar days from the
date of the incident or the date you were aware of the incident to initiate your
complaint of alleged discrimination. . . .
Conley’s email to Burgess referred to filing a complaint with the EEOC, as evidenced by
the comment in the email about the EEOC website and the emphasized text. But, Conley’s email
also referred to a 45-day deadline for filing, which arguably supported her claim that she also
informed Burgess about the Army’s EEO process. This is because the only 45-day deadline is
one that pertained to the “pre-complaint processing” requirements for federal employees. See
C.F.R. § 1614.105(a)(1) (providing that an “aggrieved person must initiate contact with a
Counselor within 45 days of the date” of the alleged discrimination to begin pre-complaint
processing). In contrast, aggrieved persons in the private sector must file a complaint with the
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EEOC within 180 days of the alleged discrimination, except in a “deferral” jurisdiction, where
the period is 300 days. See 42 U.S.C. § 2000e-5(e)(1) (“A charge . . . shall be filed within one
hundred and eighty days after the alleged unlawful employment practice[.]”); Edelman v.
Lynchburg Coll., 300 F.3d 400, 404 & n.3 (4th Cir. 2002). Maryland is a deferral state under
Title VII; the Maryland Commission on Civil Rights is the applicable State enforcement agency. 4
See, e.g., Prelich v. Med. Resource, Inc., 813 F. Supp. 2d 654, 661–62 (D. Md. 2011); EEOC v.
Randstad, 716 F. Supp. 2d 734, 739 & n.1 (D. Md. 2011).
Along with Conley’s Declaration, the Army submitted a Form 7509, titled “Information
Inquiry Summary,” dated January 22, 2014. See ECF 25-2 at 3. The Form was completed by
Conley on the same date that she spoke to plaintiff. Arguably, the Form 7509 indicates that
Conley advised plaintiff of both the EEO and the EEOC complaint processes. Moreover, the
preprinted text of the Form specifies that its “Principal Purpose” is for use in processing
discrimination complaints based on race, sex, age, disability, color, religion, and/or reprisal by
“Army civilian employees, former employees . . . and some contract employees.” ECF 25-2 at 3.
Box 10 on the form is titled “Contact Summary.” There is an X in the box next to the
following statement:

“Provided general information regarding EEO complaint processing,

emphasizing the 45-calendar day prescribed time limitation for initiating the EEO complaint
process and right to representation during the EEO process, including the pre-complaint intake
interview.” (Emphasis in original). A box directly below, titled “Other (Explain)”, is also
marked with an X. Under it, the form states: “Equal Employment Opportunity Commission –
Baltimore Field Office.” The contact information for the Baltimore Field Office of the EEOC is
below that line, including the email address, street address, and phone number. Conley also
4

This agency was formerly known as the Maryland Commission on Human Relations.
See Brown v. Mass Transit Admin., ELH-12-3705, 2013 WL 1428527 (D. Md. Apr. 8, 2013).
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submitted the email exchange with Burgess that occurred on January 23, 2014. ECF 25-2 at 5,
Conley Declaration.
In support of plaintiff’s Opposition, plaintiff submitted her own Affidavit. ECF 26-1.
She avers that on January 22, 2014, Conley “advised” her that she “was not ‘a federal
employee[’]” and therefore “any claim [she] filed with the Army’s EEO office would not be
processed and would be dismissed as being outside the EEO office’s jurisdiction.” ECF 26-1 at
1. In addition, Conley allegedly told plaintiff that she had 45 days to file a complaint with the
EEOC in Baltimore, and she did so. Id. at 2. According to plaintiff, Ms. Conley never informed
her about any “pre-complaint” rights with the Army’s EEO office. Id. Burgess avers that she
“relied” on Conley’s statements and believed that her “only course of action was to file a
complaint with the EEOC. . . .” Id. Burgess proceeded to the EEOC within 45 days, as directed
by Conley. Burgess claims that the EEOC told her she had 180 days in which to complete an
Intake Questionnaire. Id.5 She submitted an EEOC “Intake Questionnaire” on June 5, 2014
(ECF 26-2), which she signed on May 31, 2014.

Id. at 4, 8. On the EEOC form, plaintiff

identified her employer as “System High.” Id. at 1. She also indicated that she was terminated
by System High. Id. at 2. In the text, plaintiff complained about “Steve & Mike.” Id. at 3.
In a typed attachment, Burgess stated: “I worked for System High Corporation at the
U.S. Army Aberdeen Proving Grounds in Aberdeen, MD. . . .” ECF 26-2 at 5. She noted that
she “reported to Army Civilian management. . . .”

Id.

Burgess outlined her claims for

discrimination based on her sex and physical disability. Id. at 5–7. In addition, Burgess stated:
“I then filed an EEOC compliant [sic] with the U.S. Army EEOC office at Aberdeen Proving

5

Because Maryland is a deferral State, plaintiff would have had 300 days.
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grounds on January 17, 2014.” ECF 26-2 at 8.6
Because the Army’s EEO office declined to process plaintiff’s complaint of
discrimination, plaintiff contends that she has “properly exhausted her administrative remedies
before filing suit . . . .” ECF 18, ¶ 11, Amended Complaint. In her Affidavit (ECF 26-1 at 2),
plaintiff notes that she “did not proceed . . . with filing a formal complaint with the Army’s EEO
office,” because she relied on Conley’s instructions. However, plaintiff’s Opposition (ECF 26
at 11) states: “Plaintiff believed that she actually filed an internal complaint with the APG EEO
office.” Also, plaintiff’s EEOC Complaint (ECF 26-2) states: “I then filed an EEOC compliant
[sic] with the U.S. Army EEOC office . . . .” ECF 26-2 at 8. Moreover, on the EEOC Intake
Questionnaire she stated that she filed a complaint with “U.S. Army EEOC office-1/

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Aberdeen MD.” ECF 26-2 at 4.
As noted, on November 10, 2015, this Court issued a Memorandum Opinion and Order
dismissing the Army from this case. ECF 28; ECF 29.

In my Memorandum Opinion, I

determined, among other things, that the doctrines of equitable tolling and futility did not excuse
plaintiff’s failure to exhaust. See ECF 28 at 13–20.
On November 16, 2015, plaintiff filed a formal complaint with the Army’s EEO office
(ECF 33-1), and on December 8, 2015, she filed the pending Motion to Reconsider. ECF 33.
The Army’s EEO office issued a final decision on January 19, 2016, dismissing plaintiff’s
complaint. ECF 38-1. The decision provides the following reasons for dismissal, ECF 38-1 at 2
(emphasis in original):
In accordance with the provisions of 29 CFR Section 1614.107(a)(1) and AR690600, “Failure to State a Claim”, the Agency must dismiss the claim if the
complainant is not a covered Army “employee” under the antidiscrimination
laws (AR690-600 3-10, 3b(1)(b)). More specifically, your client was employed
by System High Corporation under Contract #W15QKN-13-C-1 014. A direct
6

The exact date is handwritten and difficult to decipher.
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contract between your client and the Army did not exist and she was paid by
System High Corporation alone. The Army did not dictate the terms of your
client’s employment, withhold taxes, provide insurance, reimburse for expenses,
establish working hours, approve leave, issue performance appraisals, or have the
authority to issue penalties or rewards to System High employees.
In accordance with the provisions of 29 CFR section 1614.1 07(a)(2) and AR690600, “Untimely EEO Counselor Contact”, the Agency must dismiss the claim if
the complainant failed to contact an EEO official or an EEO counselor
within 45 days of the alleged discriminatory claim, or in the case of a
personnel action, within 45 calendar days of the effective date of the action.
Your client did not initiate contact with an EEO counselor with intent to start the
EEO Process until 18 November 2015, 347 days after the latest event in your
client’s claim.
Furthermore, on 10 November 2015, a United States District Judge dismissed
your client’s claims against the Army in an extremely detailed ruling, stating that
your client “. . . failed to show a basis for equitable tolling or waiver of the
administrative exhaustion requirement.” 29 CFR Section 1614.107(a)(3) states
that the Agency must dismiss the claim if the same issue was the basis of a
civil action decided by a U.S. District Court in which the complainant was a
party. A copy of Civil Action No. ELH-14-3895 citing the dismissal is attached.
When your client first contacted the EEO Office on Aberdeen Proving Ground on
22 January 2014, she was provided a DA Form 7509 (attached, and received in
this office from your office on 7 December 2015) which clearly emphasized the
45-calendar day time limitation to initiate the EEO Process. She was advised to
report the alleged discrimination to the EEOC’s Baltimore Field Office because
she was solely employed by System High Corporation and was also provided with
clear contact information for that office (block 10).
III. Standard of Review
The Federal Rules of Civil Procedure do not contain an express provision for a “motion
for reconsideration” of a final judgment. Katyle v. Penn Nat’l Gaming, Inc., 637 F.3d 462, 470
n.4 (4th Cir. 2011), cert. denied, 132 S. Ct. 115 (2011). But, to avoid elevating form over
substance, a motion to reconsider may be construed as a motion to alter or amend judgment

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under Fed. R. Civ. P. 59(e), or a motion for relief from judgment under Fed. R. Civ. P. 60(b).
MLC Auto., LLC v. Town of S. Pines, 532 F.3d 269, 278–80 (4th Cir. 2008).7
Fed. R. Civ. P. 59(e) is captioned “Motion to Alter or Amend a Judgment.” It states: “A
motion to alter or amend a judgment must be filed no later than 28 days after the entry of the
judgment.” A district court may amend a judgment under rule 59(e), inter alia, to “prevent
manifest injustice.” Hutchinson v. Stanton, 994 F.2d 1076, 1081 (4th Cir. 2002).
A motion filed outside the 28-day window set forth in Rule 59(e) is considered under
Rule 60, captioned “Relief from a Judgment or Order.” See In re Burnley, 988 F.2d 1, 2–4 (4th
Cir. 1992) (construing untimely Rule 59(e) motion as a Rule 60(b) motion). Fed. R. Civ. P.
60(b) sets forth a variety of grounds for relief from a final judgment or order. It permits a party
to file a motion to “relieve [the] party . . . from a final judgment” for “any . . . reason that
justifies relief,” Fed. R. Civ. P. 60(b)(6), as well as other enumerated reasons. See Liljeberg v.
Heath Serv. Acquisition Corp., 486 U.S. 847, 863 (1988) (noting that 28 U.S.C. § 455 “does not,
on its own, authorize the reopening of closed litigation” but that Rule 60(b) “provides a
procedure whereby, in appropriate cases, a party may be relieved of a final judgment.”).
The timing of the filing of the motion is the key factor in ascertaining which rule applies.
The Fourth Circuit has said that “a motion filed under both Rule 59(e) and Rule 60(b) should be
analyzed only under Rule 59(e) if it was filed no later than [28] days after entry of the adverse
judgment and seeks to correct that judgment.” Robinson v. Wix Filtration Corp. LLC, 599 F.3d
403, 412 (4th Cir. 2010) (citing Small v. Hunt, 98 F.3d 789, 797 (4th Cir. 1996)); see In re
Burnley, 988 F.2d at 2–3; Lewis v. McCabe, Weisberg & Conway, LLC, No. DKC 13-1561, 2015
7

Pursuant to Local Rule 105.10, “any motion to reconsider . . . shall be filed with the
Clerk not later than fourteen (14) days after entry of the order,” except as otherwise provided
under Fed. R. Civ. P. 50, 52, 59, or 60.
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WL 1522840, at *1 (D. Md. Apr. 1, 2015). Burgess’s Motion to Reconsider was filed on
December 8, 2015 (ECF 33), within twenty-eight days of the filing of the Memorandum Opinion
and Order on November 10, 2015. ECF 28; ECF 29. Therefore, Rule 59(e) applies here.
Although the plain language of Rule 59(e) does not provide a particular standard by
which a district court should evaluate a motion to alter or amend judgment, the Fourth Circuit
has clarified: “Our case law makes clear [ ] that Rule 59(e) motions can be successful in only
three situations: (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.” Zinkand v. Brown, 478 F.3d 634, 637 (4th Cir. 2007) (internal quotations omitted); see
Ingle ex rel. Estate of Ingle v. Yelton, 439 F.3d 191, 197 (4th Cir. 2006); U.S. ex rel. Becker v.
Westinghouse Savannah River Co., 305 F.3d 284, 290 (4th Cir. 2002), cert. denied, 538 U.S.
1012 (2003); E.E.O.C. v. Lockheed Martin Corp., Aero & Naval Sys., 116 F.3d 110, 112 (4th
Cir. 1997).
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) (quoting Russell v.
Delco Remy Div. of Gen. Motors Corp., 51 F.3d 746, 749 (7th Cir. 1995)), cert. denied, 525 U.S.
1104 (1999). But, the Fourth Circuit has cautioned that a party may not use a Rule 59(e) motion
to “raise arguments which could have been raised prior to the issuance of the judgment,” or to
“argue a case under a novel legal theory that the party had the ability to address in the first
instance.” Id.; see also Nat’l Ecol. Found. v. Alexander, 496 F.3d 466, 477 (6th Cir. 2007)
(“Rule 59(e) motions are ‘aimed at reconsideration, not initial consideration.’”) (citation
omitted). Moreover, “[a] motion under Rule 59(e) is not authorized ‘to enable a party to

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complete presenting his case after the court has ruled against him.’” Matter of Reese, 91 F.3d 37,
39 (7th Cir. 1996) (quoting Frietsch v. Refco, Inc., 56 F.3d 825, 828 (7th Cir. 1995)); see 11
CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2810.1 at
171 (3d ed. 2012) (“WRIGHT & MILLER”) (“In practice, because of the narrow purposes for
which they are intended, Rule 59(e) motions typically are denied.”).
Notably, “[m]ere disagreement [with a court’s ruling] does not support a Rule 59(e)
motion.” Hutchinson, 994 F.2d at 1082; see United States ex rel. Becker, 305 F.3d at 290.
Indeed, “‘reconsideration 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); see also 11 WRIGHT &
MILLER § 2810.1 at 156–57 (noting the same).
IV. Discussion
Plaintiff contends that the Court should reconsider its Order of November 11, 2015,
granting the Army’s Motion to Dismiss, because “on November 16, 2015, Plaintiff filed a formal
EEO Complaint of Discrimination against the Army . . . . in an attempt to satisfy the
administrative remedies in this case.” Id. According to plaintiff, the Court should “hold the
claim against the Army in abeyance until the conclusion of the administrative process with the
receipt of the final agency decision or the conclusion of the 180-day investigation period,
whichever should occur first.” Id. Plaintiff also asserts that the EEO filing deadline should be
equitably tolled so that the Formal Discrimination Complaint would be deemed timely filed.
ECF 33 at 6–8.
The Army advances several arguments in its Opposition. ECF 37. First, the Army
contends that plaintiff’s Formal Discrimination Complaint is not “newly discovered” evidence,
but is actually “newly created” evidence, which does not justify reconsideration. Id. at 3.

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Further, the Army argues that, as of filing of the Opposition on January 11, 2016, plaintiff had
still failed to exhaust her administrative remedies8 (id.), and allowing the suit to be held in
abeyance would be “inconsistent with the law” because administrative exhaustion is a
“‘prerequisite to . . . suit.’” Id. at 4 (alteration and emphasis in original) (citing Figueroa v.
Geithner, 711 F. Supp. 2d 562, 569 (D. Md. 2010)). The Army also maintains that equitable
tolling is not appropriate because plaintiff has not provided any justification for failing to exhaust
initially.

ECF 37 at 4–5.

And, the Army contends that plaintiff has not “identified any

extraordinary circumstances, undue hardship, or merit” to qualify for relief from the Court’s
prior ruling. Id. at 5.
As noted, on January 19, 2016, before plaintiff filed her Reply, the Army’s EEO office
issued its final decision dismissing plaintiff’s Formal Discrimination Complaint. See ECF 38-1.
Relying on the EEO Dismissal in her Reply, plaintiff insists that she has now exhausted her
administrative remedies. ECF 38 at 5. She argues, ECF 38 at 2:
The fact that the Army has now done what it had already advised that it would do
(dismissed Plaintiff’s EEO complaint and refused to process the same due to her
not being an Army employee) merely confirms Plaintiff’s position that such a
filing would have been, and truly was, futile. Nonetheless, Plaintiff has certainly
now provided the Army with the ‘opportunity to exercise its discretion’ with an
EEO complaint and has exhausted the administrative remedies prerequisite for
this honorable Court to have jurisdiction over her complaints of discrimination in
her employment by the Army.
In addition, plaintiff reiterates that she “should be afforded equitable tolling in this case.”
Id. at 7. To support this assertion, plaintiff cites Army Regulation AR690-600 3-10(b)(1) for the
first time, which, according to plaintiff, “precludes EEO investigations where the complainant
was not a federal employee.” Id. at 7. This regulation was cited in the EEO Dismissal (ECF 388

When the Opposition was filed on January 11, 2016, the EEO office had not yet issued
its final decision.

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1 at 2), and plaintiff urges that it demonstrates that a “hard and fast position” was taken by the
EEO office. Id.
Plaintiff does not discuss the doctrine of futility in her Motion to Reconsider. But, she
states in her Reply that “it is apparent that the filing of the EEO complaint was futile, regardless
of the timing of the filing.” ECF 38 at 7.

Plaintiff also contends that this case involves

“extraordinary circumstances that warrant this Court to exercise its discretion to prevent an
undue hardship against an innocently injured party.” Id. at 8.
In its Surreply, the Army counters: “Plaintiff has not offered any basis for the Court to
reconsider its Opinion.” ECF 41 at 2. In particular, the Army avers that plaintiff’s reasoning is
flawed because plaintiff has overlooked the legal distinction between “newly created” and
“newly discovered” evidence (id. at 2), and plaintiff has not offered any support for why the
Court’s original equitable tolling analysis should no longer apply. Id. at 3. Further, the Army
argues that plaintiff “cannot invoke futility to avoid her exhaustion requirement.” Id. at 4.
Also, according to the Army, plaintiff “misrepresents AR 690-600” in her Reply. Id.
The regulation states, ECF 41 at 5 (emphasis added by the Army):
3-10. Procedures for processing complaints filed by contingent workers
(contract employees)
Contingent workers are civilian workers who are outside of the Army’s “core”
work force, such as independent contractors, volunteers, employees of
government contractors, . . . [.]
a. Inquiries to EEO counselors from employees who are not civil service
employees should be referred to the EEO officer.
(1) The EEO officer will advise the worker to immediately report the
allegations to his or her nonFederal employer.
(2) If the worker wants to file a complaint against the contractor, the EEO
officer should provide the address and telephone number of the nearest EEOC
field office.
(3) If the worker wants to file a complaint against the Army, the EEO
officer should assign a counselor and process initially in accordance with 29 CFR
Part 1614 and this regulation. The EEO officer will advise the aggrieved that,
depending on the facts and circumstances surrounding the employment
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relationship, the Army may not be his or her employer under Title VII or any
other antidiscrimination laws.
b. Upon assignment of a counselor, the EEO officer must contact
management officials to obtain the working relationship information (See figure
3-8.) The EEO officer must forward the working relationship information to the
labor counselor for a fact based analysis and legal opinion on whether the
aggrieved is a covered Army “employee” under the antidiscrimination laws.
According to the Army, “the text of the regulation states that the Army will evaluate an
EEO complaint from a non-federal employee ‘depending on the facts and circumstances’ and in
conjunction with a ‘fact-based analysis’ performed by a labor counselor.”

ECF 41 at 5.

Moreover, the Army maintains that the EEO office “dismissed the complaint because it was
untimely and because this Court has already dismissed an identical lawsuit.” Id. at 6; see also
ECF 38-1 at 2 (providing the reasons for the EEO Dismissal).
For the reasons stated below, I agree with the Army.
As noted, under the Fourth Circuit’s three-part standard, the Court may grant a motion for
reconsideration under Fed. R. Civ. P. 59(e) “in only three situations: (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.” Zinkand, 478 F.3d at 637.
Plaintiff has not shown that any of these scenarios have occurred in her case.
Plaintiff does not contend that there has been an intervening change in controlling law.
However, she argues that the Formal Discrimination Complaint that she filed on November 16,
2015, combined with the EEO Dismissal, qualify as new evidence that was not available for the
Court to consider when dismissing the Army from this case. ECF 38 at 5.
In Boryan v. United States, 884 F.2d 767, 771–72 (4th Cir. 1989), the Fourth Circuit
provided useful guidance for analyzing “newly discovered” evidence. The Court explained, id.
(emphasis in original):

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[I]n order to support a motion for reconsideration, ‘the movant is obliged to show
not only that this evidence was newly discovered or unknown to it until after the
hearing, but also that it could not with reasonable diligence have discovered and
produced such evidence’ at the hearing.” Frederick S. Wyle P.C. v. Texaco, Inc.,
764 F.2d 604, 609 (9th Cir. 1985) (citations and quotation marks omitted); see
also Stiers v. Martin, 277 F.2d 737 (4th Cir. 1960). Evidence that is available to a
party prior to entry of judgment, therefore, is not a basis for granting a motion for
reconsideration as a matter of law. Frederick S. Wyle P.C., 764 F.2d at 609; see
also Taylor, 831 F.2d at 259.
See also Small, 98 F.3d at 798 (stating that in order for a party to be granted relief based on new
evidence under Fed. R. Civ. P. 59(e), that “party must produce a ‘legitimate justification for not
presenting’ the evidence during the earlier proceeding”) (citations omitted).
Plaintiff and the Army disagree as to whether the Formal Discrimination Complaint and
the EEO Dismissal are “newly discovered” or “newly created” evidence. ECF 37 at 3; ECF 38 at
4–5. However, plaintiff has offered no argument to suggest that she “could not with reasonable
diligence have discovered and produced such evidence” for the Court’s consideration when she
filed this lawsuit. Boryan, 884 F.2d at 771 (quotations omitted).
As I explained previously, the fundamental flaw in plaintiff’s original Complaint was that
she had not exercised diligence to exhaust before filing her lawsuit, even after retaining counsel.
ECF 28 at 17. As noted in the initial Memorandum Opinion, exhaustion of administrative
remedies is a “prerequisite to . . . suit.” Figueroa, 711 F. Supp. 2d at 569 (emphasis added); see
also Balas v. Huntington Ingalls Indus., Inc., 711 F.3d 401, 406–07 (4th Cir. 2013); Jones v.
Calvert Grp., Ltd., 551 F.3d 297, 300–01 (4th Cir. 2009); Miles v. Dell, Inc., 429 F.3d 480, 491
(4th Cir. 2005). Plaintiff cannot simply reset the clock and try again, particularly because she
fails to offer any new argument to suggest why she should be excused from the requirement to
exhaust administrative remedies before filing suit in federal court. ECF 33. Thus, plaintiff’s
Formal Discrimination Complaint and the EEO Dismissal do not constitute “new evidence” that

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demand reconsideration of my prior ruling. Zinkand, 478 F.3d at 637. Furthermore, for the
reasons set forth in my earlier Memorandum Opinion, equitable tolling does not apply. See ECF
28 at 13–17.
Although plaintiff did not raise the futility doctrine in her Motion to Reconsider, her
assertion in the Reply as to futility is also unconvincing. See ECF 38 at 7–8. Plaintiff suggests
that the EEO Dismissal proves that she was correct in initially choosing not to file a formal
complaint. Id. She bases this argument on the fact that the EEO office included her employment
status as a reason for its dismissal. Id. at 8; ECF 38-1 at 2.
However, as I explained in the Memorandum Opinion, “construing the facts in the light
most favorable to plaintiff, the record does not reflect a ‘clear showing’ that the Army conveyed
information to plaintiff ‘that [made] an adverse ruling a certainty.’” ECF 28 at 19 (citing
Thetford Props. IV Ltd. P’ship v. U.S. Dep’t of Housing & Urban Dev., 907 F.2d 445, 450 (4th
Cir. 1990). (emphasis added)). This finding does not change with the benefit of hindsight.
As the Army points out (ECF 41 at 5), plaintiff bases her renewed futility argument on a
selective reading of both the EEO Dismissal and Army Regulation AR690-600. The dismissal
was based on a number of factors, including the Memorandum Opinion.

ECF 38-1 at 2.

Moreover, the Army regulation (ECF 41 at 5) provides EEO staff with discretion to weigh the
claims of “contract employees.” Id. Therefore, even if plaintiff had cited the regulation in a
more timely fashion, it would not stand as a “hard and fast position” proving that the plaintiff’s
formal complaint was destined to be dismissed. Thetford Props., 907 F.2d at 450.
Finally, plaintiff asserts that denying her Motion would be “manifestly unjust” (ECF 33
at 7), and that “extraordinary circumstances” are at play in her case. See, e.g., ECF 38 at 9. But

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simply stating this is the case does not make it so. Plaintiff has offered little to support her
assertion.
Plaintiff’s claim against SHC shall proceed. But, as to the Army, she has failed to meet
long-settled prerequisites for administrative exhaustion. See, e.g., Balas, 711 F.3d at 406–07;
Jones, 551 F.3d at 300–01 (4th Cir. 2009); Laber v. Harvey, 438 F.3d 404, 415 (4th Cir. 2006) (en
banc); Miles, 429 F.3d at 491; Figueroa, 711 F. Supp. 2d at 569.

V. Conclusion
For the foregoing reasons, I shall deny plaintiff’s Motion to Reconsider. An Order
follows.

Date: March 14, 2016

/s/
Ellen L. Hollander
United States District Judge

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