                          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



                                                  3
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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