                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

TANYA LEWIS,                                   :
                                               :
                       Plaintiff,              :       Civil Action No.:      07-0429 (RMU)
                                               :
                       v.                      :       Re Document No.:       83
                                               :
DISTRICT OF COLUMBIA,                          :
                                               :
                       Defendant.              :

                                    MEMORANDUM OPINION

    DENYING THE DEFENDANT’S MOTION FOR RELIEF UPON RECONSIDERATION; GRANTING IN
      PART AND DENYING IN PART THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

                                       I. INTRODUCTION

        This matter is before the court on the defendant’s second motion for relief upon

reconsideration of a September 14, 2009 ruling, in which the court granted partial summary

judgment to the plaintiff on her discrimination claims, and the defendant’s motion for summary

judgment in response to the plaintiff’s second amended complaint. For the reasons discussed

below, the court denies the defendant’s second motion for reconsideration and grants in part and

denies in part the defendant’s motion for summary judgment.1



                                          II. ANALYSIS

       A. The Court Denies the Defendant’s Motion for Relief Upon Reconsideration

        The defendant has filed a second motion for relief upon reconsideration of the court’s

September 14, 2009 ruling, in which the court granted summary judgment to the plaintiff on the

issue of the defendant’s liability for gender discrimination. Def.’s Mot. for Summ. J. Regarding

1
        A complete summary of the facts and procedural history of the case can be found in prior
        opinions. See Mem. Op. (Sept. 8, 2010) at 2-4; Mem. Op. (Sept. 14, 2009) at 2-5; Mem. Op.
        (Jan. 24, 2008) at 2-4.
Pl.’s 2d Am. Compl. & Mot. for Relief Upon Reconsideration (“Def.’s Mot.”) at 14-16.2 In its

motion, the defendant argues, yet again, that the plaintiff failed to establish a prima facie case of

gender discrimination because she failed to show that she was treated differently from a similarly

situated male applicant. Id. The plaintiff responds that the defendant has advanced no new

arguments or authority justifying such relief.3 See Pl.’s Opp’n to Def.’s Mot. (“Pl.’s Opp’n”) at

21-24.

         In denying the defendant’s first motion for relief upon reconsideration, in which the

defendant raised the same arguments asserted in the motion for reconsideration now before the

court, the court explained that “[t]his Circuit has squarely and repeatedly rejected the notion that

a plaintiff must show that she was treated differently from a similarly situated individual outside

her protected class to establish a prima facie case of discrimination.” Mem. Op. (Sept. 8, 2010)

at 6-7 (citing Ginger v. District of Columbia, 527 F.3d 1340, 1344 (D.C. Cir. 2008); Czekalski v.

Peters, 475 F.3d 360, 365-66 (D.C. Cir. 2007); Mastro v. Potomac Elec. Power Co., 447 F.3d

843, 851 (D.C. Cir. 2006); George v. Leavitt, 407 F.3d 405, 412-13 (D.C. Cir. 2005); Stella v.

Mineta, 284 F.3d 135-146 (D.C. Cir. 2002)). The court further noted that Teneyck v. Omni

Shoreham Hotel, 365 F.3d 1139 (D.C. Cir. 2004), the principal authority on which the defendant

relied in its earlier motion, and which the defendant cites again in its second motion for relief

2
         The defendant’s motion lacks page numbers. See generally Def.’s Mot. For convenience, the
         court will refer to the pagination provided by the court’s electronic filing system.
3
         The plaintiff also argues that reconsideration of the court’s September 2009 ruling is barred by
         issue preclusion. See Pl.’s Opp’n to Def.’s Mot. (“Pl.’s Opp’n”) at 9. This doctrine, however,
         only prevents the reconsideration of issues decided in prior proceedings. See Brown v. Felsen,
         442 U.S. 127, 139 n.10 (1979) (“[C]ollateral estoppel treats as final only those questions actually
         and necessarily decided in a prior suit.” (citing Montana v. United States, 440 U.S. 147, 153
         (1979))). The plaintiff’s invocation of the law of the case doctrine, Pl.’s Opp’n at 8-9, is equally
         baseless, as an order granting summary judgment on the sole issue of liability, such as the order at
         issue here, is considered to be interlocutory, Zimzores v. Veterans Admin., 778 F.2d 264, 266 (5th
         Cir. 1985), and review of interlocutory orders is not bound by the law of the case doctrine,
         Filebark v. U.S. Dep’t of Transp., 555 F.3d 1009, 1013 (D.C. Cir. 2009) (quoting Langevine v.
         District of Columbia, 106 F.3d 1018, 1023 (D.C. Cir. 1997)).

                                                      2
upon reconsideration, “expressly rejected the position offered by the defendant.” Mem. Op.

(Sept. 8, 2010) at 7; see also Teneyck, 365 F.3d at 1150 (“[I]n order to make out a prima facie

case, it is not necessary for an African-American to show that she was disadvantaged by the

employer’s hiring of a Caucasian applicant, or for a female plaintiff to show that a male was

hired in her stead.”) (emphasis added).

       The defendant’s inexplicable invocation of the same baseless arguments, even in the face

of overwhelming binding authority contrary to its position, has consumed more than its share of

the court’s time. See Def.’s Mot. at 14-16. The defendant’s second motion for relief upon

reconsideration is denied.4

              B. The Court Grants in Part and Denies in Part the Defendant’s
                            Motion for Summary Judgment

                            1. Legal Standard for Summary Judgment

       Summary judgment is appropriate when the pleadings and evidence show “that there is

no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

4
       In its reply brief, the defendant argues for the first time that even if the plaintiff had established a
       prima facie case of discrimination, the court should still grant summary judgment to the
       defendant “because Plaintiff has not presented sufficient evidence of pretext.” Def.’s Reply at 3.
       As a threshold matter, “it is a well-settled prudential doctrine that courts generally will not
       entertain new arguments first raised in a reply brief,” Aleutian Pribilof Islands Ass’n, Inc. v.
       Kempthorne, 537 F. Supp. 2d 1, 12 n.5 (D.D.C. 2008) (citing Herbert v. Nat’l Acad. of Scis., 974
       F.2d 192, 196 (D.C. Cir. 1992)), much less an argument, like this one, raised for the first time in a
       reply brief in support of a second motion for reconsideration, see Kattan v. District of Columbia,
       995 F.2d 274, 276 (D.C. Cir. 1993) (noting that a motion for reconsideration is not a vehicle for
       advancing theories or arguments that could have been advanced earlier). Furthermore, although a
       plaintiff must prove that a defendant’s legitimate, non-discriminatory justification is pretext for
       discrimination, the court granted summary judgment to the plaintiff in this case precisely because
       the defendant declined to offer a legitimate, non-discriminatory justification at the summary
       judgment stage, choosing instead to focus exclusively on the sufficiency of the plaintiff’s prima
       facie case. See generally Mem. Op. (Sept. 14, 2009); Mem. Op. (Sept. 8, 2010). Finally,
       although the defendant suggests – again, for the first time – that the serial reposting of the
       supervisory position “demonstrates a level of . . . managerial indecision which, in and of itself,
       constitutes the legitimate, non-discriminatory justification for Plaintiff’s non-selection,” Def.’s
       Reply at 3, this belated suggestion is completely unsupported, and provides no justification for
       revisiting the court’s earlier rulings on this matter, see Kempthorne, 537 F. Supp. 2d at 12 n.5
       (citing Herbert, 974 F.2d at 196).

                                                      3
law.” FED. R. CIV. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);

Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). To determine which facts are

“material,” a court must look to the substantive law on which each claim rests. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A “genuine dispute” is one whose resolution

could establish an element of a claim or defense and, therefore, affect the outcome of the action.

Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 248.

       In ruling on a motion for summary judgment, the court must draw all justifiable

inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true.

Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than “the mere

existence of a scintilla of evidence” in support of its position. Id. at 252. To prevail on a motion

for summary judgment, the moving party must show that the nonmoving party “fail[ed] to make

a showing sufficient to establish the existence of an element essential to that party’s case, and on

which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. By pointing to

the absence of evidence proffered by the nonmoving party, a moving party may succeed on

summary judgment. Id.

       The nonmoving party may defeat summary judgment through factual representations

made in a sworn affidavit if he “support[s] his allegations . . . with facts in the record,” Greene v.

Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999) (quoting Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir.

1993)), or provides “direct testimonial evidence,” Arrington v. United States, 473 F.3d 329, 338

(D.C. Cir. 2006). Indeed, for the court to accept anything less “would defeat the central purpose

of the summary judgment device, which is to weed out those cases insufficiently meritorious to

warrant the expense of a jury trial.” Greene, 164 F.3d at 675.




                                                  4
    2. The Court Concludes that the Statutory Cap Limits the Plaintiff’s Total Recovery
       of Compensatory Damages to $300,000 and that the Equitable Relief Available
            in this Case Is Limited to the Potential Recovery of Back Pay for the
                         Period Preceding the Plaintiff’s Resignation

       On January 25, 2011, the court granted the plaintiff leave to file a second amended

complaint, which contained no new substantive allegations but clarified the nature of the relief

sought by the plaintiff. See Minute Entry (Jan. 25, 2011); compare 1st Am. Compl. at 19-20

(requesting $300,000 in general damages per count, in addition to punitive damages) with 2d

Am. Compl. at 19-22 (requesting $300,000 in compensatory damages per count, with the

exception of counts seven and ten, as well as back pay, front pay, reinstatement and other

remedies). The defendant now moves for summary judgment on multiple issues relating to the

relief sought in the second amended complaint. See generally Def.’s Mot. Specifically, the

defendant argues that recovery of compensatory damages in this case is limited by statute to a

total sum of $300,000, that the plaintiff cannot recover back pay because she subsequently

obtained positions with higher salaries than what she would have earned had she been selected as

Electrical Inspector and that she is not entitled to back pay, reinstatement or front pay as a matter

of law because she “voluntarily resigned” from her position at DCRA. Id. at 8-14.

       The plaintiff concedes that the statutory damages cap limits recovery of compensatory

damages to $300,000.5 Pl.’s Opp’n at 10. As for the defendant’s arguments regarding back pay,

front pay and reinstatement, the plaintiff argues that the defendant’s motion is procedurally

improper, as the court only granted the defendant leave to file a motion addressing the narrow

issue of whether the statutory damages cap applied to each claimant or to each claim. Id. at 3-4.


5
       The court concurs with the position taken by the parties. The language of the statute is
       unequivocal: “[T]he amount of compensatory damages awarded . . . shall not exceed, for each
       complaining party – (D) . . . $300,000.” See 42 U.S.C. § 1981a(b)(3)(D); see also Fogg v.
       Ashcroft, 254 F.3d 103, 107-08 (D.C. Cir. 2005) (holding that the statutory cap applies to each
       lawsuit, rather than each claim).

                                                   5
Furthermore, the plaintiff responds that the defendant’s calculation of damages is fundamentally

flawed, precluding summary judgment, and disputes the defendant’s assertion that the plaintiff

“voluntarily resigned” from her position. Id. at 10-21.

        The court first considers the plaintiff’s procedural objections. Federal Rule of Civil

Procedure 56(b) provides that “[u]nless . . . the court orders otherwise, a party may file a motion

for summary judgment at any time until 30 days after the close of all discovery.” FED. R. CIV. P.

56(b). In this case, the court ordered that all dispositive motions be submitted by February 16,

2009. See Min. Order (Dec. 10, 2008). The defendant did not seek summary judgment on the

plaintiff’s requests for relief by that deadline.

        The court, however, has “broad discretion in controlling its own docket.” Edwards v.

Cass Cnty., Tex., 919 F.2d 273, 275 (5th Cir. 1990); accord Shekoyan v. Sibley Int’l, 409 F.3d

414, 424 (D.C. Cir. 2005) (citing Atchinson v. District of Columbia, 73 F.3d 418, 424 (D.C. Cir.

1996)) (reviewing the lower court’s case management decision, involving a summary judgment

motion filed after the dispositive-motions deadline, for abuse of discretion). Under certain

circumstances, the court may exercise that discretion and consider dispositive motions otherwise

barred by procedural rules. See In re Sch. Asbestos Litig., 977 F.2d 764, 795 (3d Cir. 1992)

(noting that dispositive-motion deadlines are intended to further judicial economy and fairness).

Specifically, the court may consider whether the non-moving party would be prejudiced, see

Andretti v. Borla Performance Indus., Inc., 426 F.3d 824, 830 (6th Cir. 2005) (finding no

prejudice absent an indication that the motion would have been decided differently before the

deadline), whether the substantive claims have merit, see Santiago-Ramos v. Centennial P.R.

Wireless Corp., 217 F.3d 46, 58 (1st Cir. 2000) (approving the lower court’s decision to review a

tardy motion for summary judgment, in part because the issues raised were “relatively



                                                    6
straightforward”), and whether the moving party could have raised the issue before the

dispositive-motions deadline, see Ward v. Moore, 414 F.3d 968, 969 (5th Cir. 2005) (noting that

the district court considered a post-deadline summary judgment motion because the motion

asserted a defense in response to post-deadline amendments to the complaint, which the moving

party could not have previously raised).

       In this case, the plaintiff was permitted to amend the complaint well after the dispositive

motions deadline had passed. See Minute Entry (Jan. 25, 2011). Through these amendments, the

plaintiff specified that she sought back pay, front pay and reinstatement, in addition to other

damages. See 2d Am. Compl. at 19-22. The defendant’s motion for summary judgment, though

filed without leave of the court, specifically addresses the new forms of relief sought in the

second amended complaint. See generally Def.’s Mot. The defendant could not have addressed

those specific remedies at an earlier date, as the plaintiff had yet to formally request them. See

generally 1st Am. Compl. Furthermore, the issues raised in the motion for summary judgment

generally concern matters of law that are easily resolved by the court. See Def.’s Mot. at 8-14.

Finally, the plaintiff has presented nothing to suggest that she would be prejudiced should the

court consider the defendant’s arguments. See generally Pl.’s Opp’n. To the contrary, the

defendant would be prejudiced were the court to allow the plaintiff to amend her complaint and

then refuse to permit the defendant an opportunity to seek summary judgment on the novel issues

raised for the first time therein. Thus, judicial efficiency and fairness require the court to review

the motion, despite its unannounced submission after the summary judgment deadline.

       Turning to the defendant’s first substantive argument – that the defendant’s subsequent

employment at a higher salary precludes monetary relief – the court notes that Title VII

authorizes the award of back pay for economic losses resulting from unlawful discrimination. 42



                                                  7
U.S.C. § 2000e-5(g)(1). Indeed, “[v]ictorious Title VII plaintiffs are presumptively entitled to

back pay until the date judgment has been entered in the case.” Equal Emp’t Opportunity

Comm’n v. Wilson Metal Casket Co., 24 F.3d 836, 840-41 (6th Cir. 1994) (quoting Shore v. Fed.

Express Corp., 777 F.2d 1155, 1159 (6th Cir. 1985)).

          An award of back pay is calculated “by measuring the difference between the plaintiff’s

actual earnings for the period and those which he would have earned absent the discrimination of

defendants.” Waters v. Wisc. Steel Works of Int’l Harvester Co., 502 F.2d 1309, 1321 (7th Cir.

1974). The award of back may also include regular and anticipated pay increases, even if they

are performance-based, id., as well as lost fringe benefits, such as contributions to a company

savings plan, sick leave pay, compensation for medical expenses and life insurance, see, e.g.,

Metz v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 39 F.3d 1482, 1493 (10th Cir. 1994) (citing

42 U.S.C. § 2000e-5(g)).

          A plaintiff, however, is not entitled to back pay if he or she subsequently finds

employment that is “better [than] or substantially equivalent” to the position she was denied.

Donlin v. Philips Lighting N.A. Corp., 581 F.3d 73, 84 (3d Cir. 2009) (citing Ford Motor Co. v.

Equal Emp’t Opportunity Comm’n, 458 U.S. 219, 236 (1982)). “Substantially equivalent”

employment is that which affords “virtually identical promotional opportunities, compensation,

job responsibilities, and status as the position from which the Title VII claimant has been

discriminatorily terminated.” Id. (citing Booker v. Taylor Milk Co., 64 F.3d 860, 866 (3d Cir.

1995)).

          In light of these principles, the plaintiff in this case is entitled to an award of back pay

equal to the difference, if any, between what she would have earned had she received the

promotion and what she did earn over the same period, as well as any anticipated pay increases



                                                     8
and lost fringe benefits, provided she did not receive “substantially equivalent” employment.

See id; Metz, 39 F.3d at 1493 (citing 42 U.S.C. § 2000e-5(g)). Although the defendant contends

that the plaintiff’s earnings following her departure from the DCRA exceeded the maximum

annual salary of the supervisory position sought, see Def.’s Mot. at 10-11, it has not specifically

addressed the value of any lost fringe benefits, promotional opportunities or responsibilities the

plaintiff had over the same period, see generally id., other than an unsupported assertion that the

plaintiff’s new employers and the plaintiff’s previous employer provide similar benefits, see id.

at 12-13. Accordingly, the defendant has not conclusively demonstrated that the plaintiff is not

entitled to any award of back pay based on the positions she obtained after resigning.

       Yet despite the fact that the plaintiff is not categorically precluded from seeking any back

pay, it is not the case that the plaintiff is entitled to seek back pay for the entire period between

her non-selection and the entry of final judgment. Although a successful plaintiff is eligible to

recover back pay for the period beginning on the date of the discriminatory act through the entry

of final judgment, see Fogg v. Gonzalez, 492 F.3d 447, 454 (D.C. Cir. 2007), a plaintiff who

resigns or retires from his or her position is barred from recovering back pay for the period after

his or her departure, absent a viable claim of constructive discharge, Clark v. Marsh, 665 F.2d

1168, 1173 (D.C. Cir. 1981) (requiring a finding of constructive discharge to justify post-

departure back pay); Brown v. District of Columbia, 2011 WL 810245, at *7 (D.D.C. Mar. 3,

2011) (citing Marsh, 665 F.2d at 1175-76) (noting that resignation precludes subsequent back

pay, unless the plaintiff offers proof of constructive discharge); Kalinoski v. Gutierrez, 435 F.

Supp. 2d 55, 74 (D.D.C. 2006) (stating that a jury finding of constructive discharge, rather than

voluntary resignation, would entitle the plaintiff “to collect lost pay and retirement benefits under

Title VII beyond the point at which her employment ended; on the other hand, if a jury were to



                                                   9
reach the opposite conclusion, plaintiff’s eligibility for back pay and benefits under Title VII

would be cut off as of the date of her resignation” (citing Jurgens v. Equal Emp’t Opportunity

Comm’n, 903 F.2d 386, 389 (5th Cir. 1990))); Donnell v. England, 2005 WL 641749, at *1

(D.D.C. Mar. 17, 2005) (awarding back pay only through the date that the plaintiff resigned,

based on the plaintiff’s failure to establish constructive discharge). This court has already

granted summary judgment to the defendant on the plaintiff’s constructive discharge claim,

concluding that the plaintiff failed to offer sufficient evidence to give rise to a genuine dispute on

that claim. See Mem. Op. (Sept. 14, 2009) at 23-25. In the absence of a viable constructive

discharge claim, the plaintiff is barred from recovering back pay for the period following her

resignation from the DCRA and the court grants summary judgment to the defendant on this

aspect of the plaintiff’s request for relief.

        The absence of a viable claim of actual or constructive discharge also completely

precludes an award of reinstatement, see Taylor v. Fed. Deposit Ins. Corp., 132 F.3d 753, 767

(D.C. Cir. 1997) (observing that “wrongful discharge (either actual or constructive) is a

necessary element of a claim for reinstatement – discrimination and voluntary resignation are not

enough”), and recovery of front pay, see Hertzberg v. SRAM Corp., 261 F.3d 651, 659 (7th Cir.

2001) (stating that no entitlement to equitable relief, whether back pay, front pay or

reinstatement, exists if the plaintiff departed from the position in question and is unable to

establish either actual or constructive discharge); Donnell, 2005 WL 641749, at *1 (denying the

plaintiff’s requests for front pay and reinstatement based on a failure to assert constructive

discharge). Thus, based on this court’s previous ruling rejecting the plaintiff’s constructive

discharge claim, see Mem. Op. (Sept. 14, 2009) at 23-25, the plaintiff is foreclosed from




                                                 10
obtaining reinstatement or front pay as a matter of law and the court grants summary judgment to

the defendant on these requests for relief as well.6



                                          IV. CONCLUSION

       For the foregoing reasons, the court denies the defendant’s motion for relief upon

reconsideration of a prior interlocutory order, and grants in part and denies in part the

defendant’s motion for summary judgment. An Order consistent with this Memorandum

Opinion is separately and contemporaneously issued this 14th day of June, 2011.



                                                             RICARDO M. URBINA
                                                            United States District Judge




6
       As a result, the only equitable relief to which the plaintiff is potentially entitled is an award of
       back pay for the period between her non-selection and her resignation.

                                                     11
