                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
______________________________
                               )
BLYDEN A. DAVIS,               )
                               )
               Plaintiff,      )
                               )
     v.                        )   Civ. Action No. 08-290 (EGS)
                               )
JOSEPH J. MAGNOLIA, INC.,      )
                               )
               Defendant.      )
______________________________)

                        MEMORANDUM OPINION

     Plaintiff Blyden A. Davis filed discrimination and

retaliation claims against defendant Joseph J. Magnolia, Inc.,

his former employer, pursuant to Title VII of the Civil Rights

Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.,    and the

District of Columbia Human Rights Act (“DCHRA”), D.C. Code § 2-

1401.01 et seq.   On September 30, 2011, the Court granted in

part and denied in part defendant’s motion for summary judgment,

dismissing all of plaintiff’s claims except for one claim of

Title VII discrimination.   Plaintiff and defendant have each

moved for reconsideration of Court’s ruling.   Defendant

challenges the Court’s denial of summary judgment on the

remaining claim in this case for discrimination in violation of

Title VII.   Plaintiff challenges the Court’s grant of summary

judgment dismissing his retaliation claim.   Upon consideration

of the motions, the responses and replies thereto, the
applicable law, the entire record, and for the reasons stated

herein, the Court hereby DENIES defendant’s motion for

reconsideration and DENIES plaintiff’s motion for

reconsideration.

     I.   BACKGROUND

     The factual background of this case has been set forth in

the Court’s prior opinions and will not be repeated here unless

relevant to the pending motions.

     Plaintiff, who is African-American, was hired by defendant

in April 2005 as a heavy equipment operator working at

construction job sites.   Soon after being hired, plaintiff

received two or three oral warnings in May 2005 concerning his

inability to operate heavy equipment, followed by a written

warning issued on June 2, 2005.        The warning stated that

plaintiff was unable to operate heavy equipment as required by

the job, and plaintiff was transferred to a new crew, supervised

by Foreman Jeff Forsythe.

     Plaintiff alleges that while working with the new crew, in

July 2005, a fellow employee informed him that Forsythe had

referred to plaintiff as a “nigger.”        Plaintiff made an internal

complaint regarding Forsythe’s allegedly discriminatory conduct

on October 17, 2005.   Following an investigation, Forsythe

received a written warning for violation of company procedures

and unsatisfactory behavior towards employees or customers.

                                   2
     On November 2, 2005, while still working on Forsythe’s

crew, plaintiff received another written warning.    This warning

stated that plaintiff had been insubordinate and violated

company policies by failing to take a required training class.

The warning specified that it was the “final warning before

discharge.”

     In its September 30, 2011 Opinion, the Court found that

with respect to all but one of the allegedly discriminatory

actions, defendant had produced legitimate, non-discriminatory

reasons for the action, and summary judgment was appropriate for

defendant.    With respect to one of the allegedly discriminatory

actions, however, the Court found that plaintiff had produced

“sufficient evidence from which a reasonable jury could infer

intentional discrimination.”    Sept. 30, 2011 Op. at 13.

Specifically, the Court found that with respect to the November

2005 written warning, plaintiff had identified “sufficient,

albeit circumstantial, evidence from which a reasonable jury

could infer that Forsythe’s decision to issue plaintiff a

written reprimand was the result of intentional discrimination.”

Id. at 15.

     The Court also granted defendant’s motion for summary

judgment on plaintiff’s claim of retaliation.    Although the

Court found that plaintiff had established a prima facie case of

retaliation, the Court found that defendant had produced

                                  3
legitimate, non-discriminatory reasons for the November 2005 and

January 2006 written warnings and plaintiff’s termination in May

2006.    Sept. 30, 2011 Op. at 30.       The Court rejected plaintiff’s

arguments regarding the temporal proximity of plaintiff’s

complaints in October 2005 and January 2006 and the written

warnings.    Sept. 30, 2011 Op. at 31 (citing Talavera v. Shah,

638 F.3d 303, 313 (D.C. Cir. 2011) (“[P]ositive evidence beyond

mere proximity is required to defeat the presumption that the

proffered explanations are genuine.”)).

       Defendant, in its motion for reconsideration, asks the

Court to grant summary judgment in favor of defendant on

plaintiff’s sole remaining claim in the case: that plaintiff’s

supervisor discriminated against him by issuing a written

warning allegedly as a result of plaintiff’s failure to re-take

a training course.    In support of its motion, defendant asks the

Court to consider “supplemental” facts that it did not submit in

support of its initial motion.    Defendant also argues that a

single, written warning cannot, as a matter of law, qualify as

an “adverse employment action” under Title VII.

       Plaintiff, in his motion for reconsideration, argues that

the Court should reverse its grant of summary judgment in favor

of defendant on plaintiff’s claims of retaliation under Title

VII.    Specifically, plaintiff argues that the Court overlooked

evidence in the record that defendant’s reasons for disciplining

                                     4
plaintiff were without basis, pretextual, or involve disputed

material facts.

     II.    STANDARD OF REVIEW

     A. Motion for Reconsideration

     Under Rule 54(b) of the Federal Rules of Civil Procedure,

the district court may revise its own interlocutory orders “at

any time before the entry of judgment adjudicating all the

claims and all the parties’ rights and liabilities.       Fed. R.

Civ. P. 54(b).    The United States Court of Appeals for the

District of Columbia has provided that relief under 54(b) is

available “as justice requires.”       Capitol Sprinkler Inspection,

Inc. v. Guest Servs., Inc, 630 F.d 217, 227 (D.C. Cir. 2011).

However, a motion for reconsideration is discretionary and

should not be granted unless the movant presents either newly

discovered evidence or errors of law or fact that need

correction.    Nat’l Trust for Hist. Pres. v. Dep’t of State, 834

F. Supp. 453, 455 (D.D.C. 1993).       Motions for reconsideration

cannot be used as “an opportunity to reargue facts and theories

upon which a court has already ruled, nor as a vehicle for

presenting theories or arguments that could have been advanced

earlier.”    S.E.C. v. Bilzerian, 729 F. Supp. 2d 9, 14 (D.D.C.

2010) (internal citations omitted); accord Gaither v. District

of Columbia, 771 F. Supp. 2d 5, 10 (D.D.C. 2011) (denying motion

for reconsideration of summary judgment ruling where party

                                   5
sought to reargue theories and to supplement its inadequate

summary judgment briefing).

     B. Summary Judgment

     Summary judgment is appropriate “if the movant shows that

there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.”        Fed. R.

Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986).   Though the Court must draw all reasonable

inferences in favor of the non-moving party in deciding whether

there is a disputed issue of material fact, “[t]he mere

existence of a scintilla of evidence in support of the [non-

movant]’s position will be insufficient; there must be evidence

on which the jury could reasonably find for the [non-movant].”

Anderson, 477 U.S. at 252.

     In the District of Columbia, Local Civil Rule 7(h) requires

that a motion for summary judgment “shall be accompanied by a

statement of material facts as to which the moving party

contends there is no genuine issue, which shall include

references to the parts of the record relied on to support the

statement.”   Local Civ. R. 7(h).       This rule “places the burden

on the parties and their counsel, who are most familiar with the

litigation and the record, to crystallize for the district court

the material facts and relevant portions of the record.”

Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101

                                    6
F.3d 145, 151 (D.C. Cir. 1996) (citing Twist v. Meese, 854 F.2d

1421, 1425 (D.C. Cir. 1988)).    Courts in this Circuit have

required strict adherence to this rule.    See, e.g., id.

(affirming district court’s denial of plaintiff’s motion to

supplement its statement of material fact with additional

facts).

     III. DISCUSSION

     A. Defendant’s Motion for Reconsideration

     As an initial matter, defendant’s motion for

reconsideration fails to set forth the applicable standard of

review for a motion for reconsideration and does not make clear

on what basis defendant seeks to have the Court reconsider its

prior opinion.   On reply, defendant clarifies that it is seeking

reconsideration because “the undisputed facts establish [that]

Forsythe did not even know about, let alone request, prepare, or

issue the November 2005 written reprimand.”    Def.’s Reply in

Supp. of Mot. for Recons. (“Def.’s Reply”), ECF No. 59, at 6.

Defendant argues that the Court’s September 30, 2011 Opinion is

based on the erroneous conclusion that “Forsythe’s decision to

issue plaintiff a written reprimand was the result of

intentional discrimination.”    Id.

     The Court reached no such conclusion.    The language quoted

by defendant states in full that “[p]laintiff has therefore

identified sufficient, albeit circumstantial, evidence from

                                  7
which a reasonable jury could infer that Forsythe’s decision to

issue plaintiff a written reprimand was the result of

intentional discrimination.”    Sept. 30, 2011 Op. at 15.   This

was the Court’s conclusion that summary judgment was

inappropriate and that the issue of whether plaintiff had been

discriminated against should be left to the trier of fact.

     In support of its motion, defendant submits a “Supplemental

Statement of Material Undisputed Facts” listing additional facts

and citing to exhibits not submitted in support of defendant’s

motion for summary judgment.    See Docket No. 54-2.   Defendant

alleges on reply that “[n]ewly discovered and supplemental

evidence are appropriate reasons to grant a motion for

reconsideration” and cites several cases.

     While it is certainly true that newly-discovered evidence

may be considered on a motion for reconsideration, a party may

not rely on facts that could have been alleged in the underlying

motion but were not.    See S.E.C. v. Bilzerian, 729 F. Supp. 2d

9, 14 (D.D.C. 2010) (motions for reconsideration cannot be used

as an opportunity to present theories or arguments that could

have been advanced earlier); Gaither v. District of Columbia,

771 F. Supp. 2d 5, 10 (D.D.C. 2011) (denying motion for

reconsideration of summary judgment ruling where party sought to

reargue theories and to supplement its inadequate summary

judgment briefing).    Defendant cites to Gallant v. Telebrands

                                  8
Corp., 35 F. Supp. 2d 378 (D.N.J. 1998), a case from outside

this Circuit, as support for the proposition that “supplemental”

facts may be considered on a motion for reconsideration.

Although that court used the word “supplemental” interchangeably

with “newly-discovered,” the opinion makes clear that the court

determined that the new facts it was considering were, in fact,

newly-discovered.   Indeed, the court noted that it was

“undisputed” that the relevant information had not been produced

to the moving party until more than a year and a half after the

court’s summary judgment order.       Gallant, 35 F. Supp. 2d at 395.

The court concluded that the evidence was newly-discovered and

could properly be considered by the court on a motion for

reconsideration. Id.

     In contrast, defendant has not alleged that the evidence

cited in its Supplemental Statement of Facts was in any way

unavailable, unknown, or undiscovered at the time that defendant

moved for summary judgment.   Indeed, much of the evidence

appears to cite to deposition testimony that predates

defendant’s August 16, 2010 motion for summary judgment.      See,

e.g., Ex. 4 to Def.’s Supp. Statement of Material Facts, Docket

No. 54-6 (Dec. 18, 2009 B. Davis Dep.); Ex. 5 to Def.’s Supp.

Statement of Material Facts, Docket No. 54-7 (Mar. 24. 2010 J.

Kulp Dep.); Ex. 7 to Def.’s Supp. Statement of Material Facts,

Docket No. 54-9 (Jun. 23, 2010 B. Woldemichael Dep.).      Other

                                  9
evidence consists of supplemental declarations prepared by

defendant’s employees, who were deposed prior to the filing of

summary judgment and who submitted declarations in support of

defendant’s summary judgment brief.     See, e.g., Ex. 11 to Def.’s

Supp. Statement of Material Facts, Docket No. 54-13 (Second

Supp. Decl. of B. Woldemichael).     None of this information is

“newly-discovered.”   Accordingly, this evidence is not properly

before the Court.

     Defendant also argues that the Court made an error of law

in denying summary judgment because a written warning cannot

constitute an “adverse employment action.”     Defendant argued

this issue in its reply in support of summary judgment, see

Docket No. 44 at 17, and the issue was considered by the Court

in its Opinion.   See Sept. 30, 2011 Op. at 29.    The Court

rejected defendant’s argument, finding that “plaintiff has

produced sufficient evidence to demonstrate that the written

warnings issued to plaintiff in November 2005 and January 2006

‘led to a more tangible form of adverse action’ because they

contributed to plaintiff’s termination, or at least this is a

materially disputed fact.”   Id. (citing Def.’s Ex. 25).    The

Court cited case law in support.     Id. (citing Hyson v. Architect

of the Capitol, Civ. No. 08-979, 2011 U.S. Dist. LEXIS 88300, at

*40 (D.D.C. Aug. 10, 2011) (“A letter of counseling, written

reprimand, or unsatisfactory performance review, if not . . . a

                                10
predicate for a more tangible form of adverse action, will

rarely constitute materially adverse action under Title VII.”

(emphasis added)).   Accordingly, because the Court already

considered and rejected this argument, and because defendant has

not presented any change in law or error in the Court’s ruling,

defendant’s motion for reconsideration is DENIED.

     B. Plaintiff’s Motion for Reconsideration

     Plaintiff has cross-moved for reconsideration, alleging

that the Court “overlooked key facts and/or did not consider

important factual disputes in the record.”     Pl.’s Mot. for

Recons. at 3.   Specifically, plaintiff requests that the Court

reverse its earlier grant of summary judgment with respect to

plaintiff’s retaliation claims.    Id. at 1.   Plaintiff argues

that the Court erred in finding that plaintiff had failed to

discredit defendant’s legitimate business reasons for issuing

the warnings.

     1. November 2005 Warning

     Plaintiff argues that the temporal proximity (two weeks)

between the November 2005 warning and plaintiff’s prior

complaint is “remarkable” and establishes the basis for a causal

connection.   As discussed in the Court’s Opinion, this temporal

proximity is insufficient to establish causation.     Sept. 30,

2011 Op. at 31 (“Plaintiff has failed to provide any evidence,

other than sheer temporal proximity, that would allow a

                                  11
reasonable jury to infer that Forsythe’s motive in issuing the

written warning was retaliatory.”).     The Court cited Talavera v.

Shah, which held that “positive evidence beyond mere proximity

is required to defeat the presumption that the proffered

explanations are genuine.”      638 F.3d 303, 313 (D.C. Cir. 2011).

Plaintiff, in repeating the arguments from his prior briefing,

has cited no basis for the Court to reconsider its decision.

      Plaintiff also argues that an issue of material fact

remains as to whether plaintiff indeed refused to take the

flagging class and/or refused to take the test administered

thereafter.   Upon review of the statement of material fact

submitted by defendant in support of its motion for summary

judgment, and plaintiff’s response, the Court finds that there

is no issue of material fact as to whether plaintiff refused to

take the test.   See Pl.’s Opp. to Def.’s SOF ¶¶ 57-61, ECF No.

43-1.   Specifically, the Court finds that plaintiff admitted

statements regarding his unwillingness to take the test.     See

id.   To the extent that plaintiff is arguing that there is a

difference between “refusing” to do something and indicating

that one is “unwilling” to do something, the Court finds that no

issue of material fact exists.

      2. January 2006 Warning

      Plaintiff also challenges the Court’s finding that

defendant provided a legitimate, non-retaliatory reason for

                                   12
issuing the January 2006 written warning, which resulted from

plaintiff’s damage to company property and the failure to report

that damage in violation of company policy.    The policy states

that “All injuries, accidents and vehicular accidents occurring

or caused by Joseph J. Magnolia, Inc. employees must be reported

to supervision immediately upon occurrence.”    Pl.’s Resp. to

Def.’s SOF ¶ 22, ECF No. 43-1.

     Plaintiff asserts that the “Court overlooked the fact that

plaintiff violated no company policy in his failure to report

the damage.”   Pl.’s Mot. for Recons. at 6.   Plaintiff argues

that the policy makes clear that an accident must be reported,

but does not define by whom it must be reported.    Plaintiff

asserts that although he signed the warning and indicated that

he agreed with his employer’s statement, he did not violate

company policy. 1   Plaintiff claims that this is evidence of

pretext that is sufficient to survive summary judgment on

retaliation.   Plaintiff contends that this fact, “combined with

the stunning temporal proximity” of the warning and plaintiff’s

complaint, is evidence of prextext.    Pl.’s Mot. for Recons. at

7.

1
 Plaintiff also disputed this issue during the summary judgment
briefing. See Pl.’s Resp. to Def.’s SOF ¶ 22, ECF No. 43-1
(arguing that although plaintiff had agreed during his
deposition that he knew he was required to report an accident,
that the policy only required that the accident be reported by
an employee, not only the employee involved in the accident).

                                 13
     The Court disagrees.    As discussed above, temporal

proximity, standing alone, is insufficient to establish that

proffered explanations are not genuine.      Furthermore, regardless

of what the policy actually required, it appears that plaintiff

and his employer had the same understanding at the time of the

accident that the policy required plaintiff to report the

accident.    Shortly after the accident, plaintiff signed an

employee warning report that indicated it was a warning for

“violation of company policy/procedures.”     Def.’s Ex. 17.   The

report stated that plaintiff “did not report the accident to his

supervisor or the Safety Director.”    Id.   Plaintiff also agreed

at his deposition that he failed to report the accident in

violation of company policy.    See Pl.’s Resp. to Def.’s SOF ¶ 22

(citing deposition testimony in which plaintiff agreed that he

was required to report all accidents immediately after they

occurred).    The Court declines to find evidence of pretext where

plaintiff and his employer shared the same understanding of the

company policy at the time of the accident and, indeed, through

the time of plaintiff’s deposition.    Accordingly, plaintiff has

not set forth any evidence sufficient for a reasonable jury to

believe that defendant’s stated reason was not the actual reason

for the January 2006 warning.    See Ford v. Mabus, 629 F.3d 198,

201 (D.C. Cir. 2010).



                                 14
     IV.   CONCLUSION

     For all of the foregoing reasons, defendant’s motion for

reconsideration is DENIED and plaintiff’s cross-motion for

reconsideration is DENIED.   An appropriate Order accompanies

this Memorandum Opinion.

SIGNED:    Emmet G. Sullivan
           United States District Court Judge
           September 28, 2012




                                15
