UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________ DEBORAH KATZ PUESCHEL, ) ) Plaintiff, ) ) v. ) Civil Action No. 99-2556 (RWR) ) NATIONAL AIR TRAFFIC ) CONTROLLERS’ ASSOCIATION, ) ) Defendant. ) ____________________________ )
MEMORANDUM OPINION AND ORDER
Plaintiff Deborah Katz Pueschel filed this lawsuit against
her union, the National Air Traffic Controllers’ Association
(“NATCA”), alleging that NATCA violated Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq. A Memorandum
Opinion and Order issued on August 5, 2002 (“Opinion”), dismissed
as untimely all of Pueschel’s claims except for her claim that
her termination was unlawful retaliation. Pueschel moves for
clarification of whether under the Opinion the earlier incidents
of discrimination are discoverable, and reconsideration of
whether she timely alleged a hostile work environment claim in
light of National Railroad Passenger Corp. v. Morgan, 536 U.S.
101 (2002). Because Pueschel has not demonstrated that justice
requires reconsideration of the August 5, 2002 Opinion, and
because Pueschel improperly seeks an advisory opinion regarding
permissible discovery, Pueschel’s motion will be denied. -2-
BACKGROUND
The background of this case is discussed fully in the
August 5, 2002 Opinion. Briefly, Pueschel was an air traffic
controller with the Federal Aviation Administration (“FAA”) and a
member of NATCA. In 1997, Pueschel filed a charge of
discrimination with the Equal Employment Opportunity Commission
(“EEOC”) against NATCA. After the EEOC dismissed Pueschel’s
charge as untimely, she filed suit against NATCA for the same
violations. That suit was dismissed as untimely. See Pueschel
v. National Air Traffic Controllers’ Ass’n, 172 F.3d 920
(D.C. Cir. 1998) (affirming the district court’s dismissal of
plaintiff’s case as untimely).
Later, on January 28, 1999, Pueschel learned that she had
been removed as an air traffic controller specialist, effective
January 15, 1999, because of her inability to work. Pueschel
contacted an EEO counselor on February 13, 1999; she filed a
formal discrimination complaint with the Department of
Transportation on April 30, 1999; she filed a formal charge of
discrimination with the EEOC on May 30, 1999; and she filed this
lawsuit on September 27, 1999, alleging that NACTA violated Title
VII by discriminating and retaliating against her, harassing her,
failing to accommodate her, and failing to prevent the FAA from
harassing her, discriminating against her, and retaliating
against her. -3-
NATCA moved to dismiss Pueschel’s claims, arguing in part
that Pueschel had not pled an adequate claim of unlawful
discrimination under Title VII. The Opinion decided that
Pueschel had adequately pled a claim of unlawful retaliation
under Title VII. Opinion at 8. However, the Opinion determined
that Pueschel could bring claims only for incidents of
discrimination that occurred within 45 days of February 13, 1999,
the date she contacted an EEO counselor, and that the only
incident alleged in her complaint that occurred in that time
frame was her termination. (Id. at 9.) Therefore, Pueschel’s
sole remaining claim from her complaint is that NATCA caused and
unlawfully failed to prevent her termination in retaliation for a
prior successful sexual harassment lawsuit. While Pueschel
argued that the alleged earlier incidents of discriminatory
conduct were part of a “continuing violation,” the Opinion
specifically determined that “the allegations of earlier
discrimination and harassment are untimely and are not
sufficiently related to be saved by the continuing violation
doctrine.” (Id. at 12.)
Citing Morgan, Pueschel has moved for reconsideration of the
Opinion to the extent it disallowed any hostile work environment
claim, and clarification as to whether she may seek in discovery
evidence of incidents of discrimination that were deemed untimely
by the Opinion. Defendant opposes the motion, arguing that it is -4-
merely an attempt to circumvent the limitations period that has
already been found to bar the claims that Pueschel seeks to
introduce.
DISCUSSION
I. RECONSIDERATION
A motion for reconsideration is governed by Rule 54(b) of
the Federal Rules of Civil Procedure. See Childers v. Slater,
197 F.R.D. 185, 190 (D.D.C. 2000). That rule provides that “any
order or other decision, however designated, that adjudicates
fewer than all the claims or the rights and liabilities of fewer
than all the parties does not end the action as to any of the
claims or parties and 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). Under Rule
54(b), a trial court may grant reconsideration “as justice
requires.” Marshall v. Honeywell Tech. Solutions, Inc, Civil
Action No. 05-2502 (RWR), 2009 WL 427312, at *2 (D.D.C.
February 23, 2009) (citing Campbell v. U.S. Dep’t of Justice, 231
F. Supp. 2d 1, 7 (D.D.C. 2002)). However, in order to promote
finality, predictability and economy of judicial resources, “as a
rule [a] court should be loathe to [revisit its own prior
decisions] in the absence of extraordinary circumstances such as
where the initial decision was clearly erroneous and would work a
manifest injustice.” Lederman v. United States, 539 F. Supp. 2d -5-
1, 2 (D.D.C. 2008) (quoting Christianson v. Colt Indus. Operating
Corp., 486 U.S. 800, 817 (1988)). Reconsideration may be
warranted where there was a patent misunderstanding of the
parties, where a decision was made that exceeded the issues
presented, where a court failed to consider controlling law, or
where a significant change in the law occurred after the decision
was rendered. Singh v. George Washington Univ., 383 F. Supp. 2d
99, 101 (D.D.C. 2005). The moving party has the burden of
showing that reconsideration is warranted, and that some harm or
injustice would result if reconsideration were to be denied. In
Def. of Animals v. Nat’l Institute of Health, 543 F. Supp. 2d 70,
76 (D.D.C. 2008).
Pueschel argues that the August 5, 2002 Opinion erred by
failing to determine that incidents of discrimination that
occurred between 1994 and her termination in 1999 should be part
of a surviving claim of hostile environment discrimination under
Title VII. She essentially seeks to revive a hostile work
environment claim by alleging that Morgan would allow her to go
forward. However, Pueschel fails to provide any new evidence
reflecting any misunderstanding of this claim, or show that the
Opinion was erroneous when it determined that the previous
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________ DEBORAH KATZ PUESCHEL, ) ) Plaintiff, ) ) v. ) Civil Action No. 99-2556 (RWR) ) NATIONAL AIR TRAFFIC ) CONTROLLERS’ ASSOCIATION, ) ) Defendant. ) ____________________________ )
MEMORANDUM OPINION AND ORDER
Plaintiff Deborah Katz Pueschel filed this lawsuit against
her union, the National Air Traffic Controllers’ Association
(“NATCA”), alleging that NATCA violated Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq. A Memorandum
Opinion and Order issued on August 5, 2002 (“Opinion”), dismissed
as untimely all of Pueschel’s claims except for her claim that
her termination was unlawful retaliation. Pueschel moves for
clarification of whether under the Opinion the earlier incidents
of discrimination are discoverable, and reconsideration of
whether she timely alleged a hostile work environment claim in
light of National Railroad Passenger Corp. v. Morgan, 536 U.S.
101 (2002). Because Pueschel has not demonstrated that justice
requires reconsideration of the August 5, 2002 Opinion, and
because Pueschel improperly seeks an advisory opinion regarding
permissible discovery, Pueschel’s motion will be denied. -2-
BACKGROUND
The background of this case is discussed fully in the
August 5, 2002 Opinion. Briefly, Pueschel was an air traffic
controller with the Federal Aviation Administration (“FAA”) and a
member of NATCA. In 1997, Pueschel filed a charge of
discrimination with the Equal Employment Opportunity Commission
(“EEOC”) against NATCA. After the EEOC dismissed Pueschel’s
charge as untimely, she filed suit against NATCA for the same
violations. That suit was dismissed as untimely. See Pueschel
v. National Air Traffic Controllers’ Ass’n, 172 F.3d 920
(D.C. Cir. 1998) (affirming the district court’s dismissal of
plaintiff’s case as untimely).
Later, on January 28, 1999, Pueschel learned that she had
been removed as an air traffic controller specialist, effective
January 15, 1999, because of her inability to work. Pueschel
contacted an EEO counselor on February 13, 1999; she filed a
formal discrimination complaint with the Department of
Transportation on April 30, 1999; she filed a formal charge of
discrimination with the EEOC on May 30, 1999; and she filed this
lawsuit on September 27, 1999, alleging that NACTA violated Title
VII by discriminating and retaliating against her, harassing her,
failing to accommodate her, and failing to prevent the FAA from
harassing her, discriminating against her, and retaliating
against her. -3-
NATCA moved to dismiss Pueschel’s claims, arguing in part
that Pueschel had not pled an adequate claim of unlawful
discrimination under Title VII. The Opinion decided that
Pueschel had adequately pled a claim of unlawful retaliation
under Title VII. Opinion at 8. However, the Opinion determined
that Pueschel could bring claims only for incidents of
discrimination that occurred within 45 days of February 13, 1999,
the date she contacted an EEO counselor, and that the only
incident alleged in her complaint that occurred in that time
frame was her termination. (Id. at 9.) Therefore, Pueschel’s
sole remaining claim from her complaint is that NATCA caused and
unlawfully failed to prevent her termination in retaliation for a
prior successful sexual harassment lawsuit. While Pueschel
argued that the alleged earlier incidents of discriminatory
conduct were part of a “continuing violation,” the Opinion
specifically determined that “the allegations of earlier
discrimination and harassment are untimely and are not
sufficiently related to be saved by the continuing violation
doctrine.” (Id. at 12.)
Citing Morgan, Pueschel has moved for reconsideration of the
Opinion to the extent it disallowed any hostile work environment
claim, and clarification as to whether she may seek in discovery
evidence of incidents of discrimination that were deemed untimely
by the Opinion. Defendant opposes the motion, arguing that it is -4-
merely an attempt to circumvent the limitations period that has
already been found to bar the claims that Pueschel seeks to
introduce.
DISCUSSION
I. RECONSIDERATION
A motion for reconsideration is governed by Rule 54(b) of
the Federal Rules of Civil Procedure. See Childers v. Slater,
197 F.R.D. 185, 190 (D.D.C. 2000). That rule provides that “any
order or other decision, however designated, that adjudicates
fewer than all the claims or the rights and liabilities of fewer
than all the parties does not end the action as to any of the
claims or parties and 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). Under Rule
54(b), a trial court may grant reconsideration “as justice
requires.” Marshall v. Honeywell Tech. Solutions, Inc, Civil
Action No. 05-2502 (RWR), 2009 WL 427312, at *2 (D.D.C.
February 23, 2009) (citing Campbell v. U.S. Dep’t of Justice, 231
F. Supp. 2d 1, 7 (D.D.C. 2002)). However, in order to promote
finality, predictability and economy of judicial resources, “as a
rule [a] court should be loathe to [revisit its own prior
decisions] in the absence of extraordinary circumstances such as
where the initial decision was clearly erroneous and would work a
manifest injustice.” Lederman v. United States, 539 F. Supp. 2d -5-
1, 2 (D.D.C. 2008) (quoting Christianson v. Colt Indus. Operating
Corp., 486 U.S. 800, 817 (1988)). Reconsideration may be
warranted where there was a patent misunderstanding of the
parties, where a decision was made that exceeded the issues
presented, where a court failed to consider controlling law, or
where a significant change in the law occurred after the decision
was rendered. Singh v. George Washington Univ., 383 F. Supp. 2d
99, 101 (D.D.C. 2005). The moving party has the burden of
showing that reconsideration is warranted, and that some harm or
injustice would result if reconsideration were to be denied. In
Def. of Animals v. Nat’l Institute of Health, 543 F. Supp. 2d 70,
76 (D.D.C. 2008).
Pueschel argues that the August 5, 2002 Opinion erred by
failing to determine that incidents of discrimination that
occurred between 1994 and her termination in 1999 should be part
of a surviving claim of hostile environment discrimination under
Title VII. She essentially seeks to revive a hostile work
environment claim by alleging that Morgan would allow her to go
forward. However, Pueschel fails to provide any new evidence
reflecting any misunderstanding of this claim, or show that the
Opinion was erroneous when it determined that the previous
incidents of discrimination of which she complains were not
sufficiently connected to events that occurred during the
limitations period to allow them to be part of a hostile work -6-
environment claim. The parties already argued in their briefs
regarding the motion to dismiss (see Pl.’s Opp’n to Def.’s Mot.
to Dismiss at 9-10; Def.’s Reply in Supp. of Mot. to Dismiss
at 4-5) about whether the previous incidents were sufficiently
connected, and the August 2002 Opinion explicitly analyzed this
issue and ruled against Pueschel. Opinion at 11-12. “[W]here
litigants have once battled for the court’s decision, they should
[not] be . . . permitted[] to battle for it again.” Singh, 383
F. Supp. 2d at 101-102 (internal quotations and citations
omitted).
Notably, Pueschel’s assertion that these incidents occurred
between 1994 and 1999 is unsupported by the complaint and is
contradicted by an earlier brief she filed. The hostile work
environment facts that Pueschel alleges are relevant are found in
paragraph 15 of her complaint which alleges that
NATCA has posted newspaper reports about plaintiff on its bulletin board. This posting contributed to further hostilities. Plaintiff has been criticized for her activities and called offensive names and descriptions by NATCA members and officials. Upon information and belief, there were comments by NATCA members that it was hoped that plaintiff would be fired for what she did to [former FAA official] Sullivan.
(Compl. ¶ 15.) However, the complaint neither provides dates for
when that behavior occurred, nor specifies that the cited
behavior occurred between 1994 and 1999. Moreover, Pueschel’s
earlier brief in opposition to defendant’s motion to dismiss,
filed in 1999, reflects that the hostile name-calling and -7-
comments directed at her occurred before 1983 when a Fourth
Circuit opinion in Pueschel’s earlier case, Katz v. Dole, 709
F.2d 251 (1983), mentioned that conduct. See Pl.’s Opp’n to Mot.
to Dismiss at 4 (“Judge Ervin had noted that Sullivan testified
that he had heard controllers referring to [Pueschel] by
obscenities.”).
Because the August 5, 2002 Opinion separately concluded that
there was an insufficient relationship between the previous
claims and the retaliation to support a continuing violation
theory, Pueschel has not shown a basis for concluding that there
is a sufficient nexus in time or substance for her to adequately
plead a hostile work environment claim that should have survived
the defendant’s motion to dismiss. Therefore, Pueschel does not
show that justice requires reconsideration of the Opinion.
II. DISCOVERY
Pueschel alleges that the defendants have objected to
discovery requests she has made concerning incidents that were
dismissed in the Opinion as untimely. She seeks an order
clarifying that the Opinion did not preclude her from discovering
such background evidence. Her motion does not set forth the text
of any discovery request to which the defendant objected, much
less the text of any objection. In that posture, there is
no concrete discovery dispute upon which to rule. Pueschel's
generic question is in essence a request for an advisory opinion, -8-
something federal courts are not empowered to render. See Steel
Co. v. Citizens for a Better Environment, 523 U.S. 83, 101, 104
(1998) (Article III’s case-or-controversy requirement precludes
federal courts from issuing advisory opinions based on abstract
issues). Her request for clarification, then, will be denied.
CONCLUSION AND ORDER
Because Pueschel has not shown that justice requires
reconsideration of the August 2002 Opinion, and because she has
not presented in this motion a concrete discovery dispute
amenable to a ruling other than an advisory opinion, her motion
will be denied. Accordingly, it is hereby
ORDERED that plaintiff’s motion [34] for clarification and
reconsideration be, and hereby is, DENIED.
SIGNED this 30th day of March, 2009.
/s/ RICHARD W. ROBERTS United States District Judge