UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _____________________________ ) SANDRA MARSHALL, ) ) Plaintiff, ) ) v. ) Civil Action No. 05-2502 (RWR) ) HONEYWELL TECHNOLOGY ) SOLUTIONS, INC. et al., ) ) Defendants. ) )

MEMORANDUM OPINION AND ORDER

Plaintiff Sandra Marshall brought numerous employment-

related claims against defendants Honeywell Technology Solutions,

Inc. (“Honeywell”), L-3 Communications Government Services, Inc.

(“GSI”), and SGT, Inc. (“SGT”). A memorandum opinion and order

dated February 26, 2008, dismissed as untimely Marshall’s claim

against GSI for Equal Pay Act violations, and dismissed as

unexhausted claims against GSI and SGT for age discrimination

under the federal Age Discrimination in Employment Act (“ADEA”)

and Maryland law. Marshall seeks reconsideration of that portion

of the order that dismissed her ADEA and Maryland age

discrimination claims and her claim under the Equal Pay Act,

arguing that the opinion erred by failing to treat an initial

intake form that she says she filed with the Prince George’s

County Human Relations Commission (“PGCHRC”) as an administrative -2-

“charge.”1 Defendants GSI and SGT oppose, arguing that the

interview intake form did not constitute an administrative

charge. Because Marshall fails to show that justice requires

reconsideration of the February 26th order dismissing those

claims, her motion for reconsideration will be denied.

BACKGROUND

The background of this case is discussed fully in Marshall

v. Honeywell Tech. Solutions, Inc.,

(D.D.C. 2008). Briefly, plaintiff alleges that during the 25

years she worked for either Honeywell or its subcontractor GSI,

she was subjected to race, sex, and age discrimination in the

form of slurs and harassment by supervisors and other employees,

and limitations on her authority. On December 31, 2003,

Honeywell replaced GSI with a new subcontractor, SGT. Marshall

alleges that SGT refused to employ her in the position she had

with GSI, and instead employed a significantly less experienced

younger white male to perform the duties Marshall had performed

for GSI.

On February 2, 2004, Marshall filed pro se three

administrative Charge of Discrimination forms with the PGCHRC,

which amounted to filings with the federal Equal Employment

1 Marshall’s counsel also responded as required to a provision of the order requiring her to show cause why sanctions should not be imposed against her under Fed. R. Civ. P. 11. That portion of the order will be discharged. -3-

Opportunity Commission (“EEOC”). She alleged race and sex

discrimination against all three defendants. Marshall filed the

complaint in this action on December 30, 2005, which alleged only

a single claim under the ADEA,

et seq., against

Honeywell, GSI and SGT.

Marshall’s original complaint here

asserted that before filing this action, she had timely filed a

written charge of age discrimination with the PGCHRC. However,

not one official Charge of Discrimination form (also known as an

EEOC Form 5) that she filed contained a claim of age

discrimination. (See Honeywell’s Mot. [#7] to Dismiss, Ex. A;

SGT’s Mot. [#38] to Dismiss, Ex. A; GSI’s Mot. [#39] to Dismiss,

Ex. B.)

The February 26, 2008 opinion dismissed Marshall’s claim

against GSI under the Equal Pay Act,

, because

Marshall failed to bring her Equal Pay Act claim against GSI

until January 12, 2007, which was more than three years after her

employment with GSI ended on December 31, 2003. “A claim under

the Equal Pay Act must be brought within two years of the alleged

injury.”

(a). Marshall,

.

The opinion also determined that, contrary to her argument,

Marshall’s claim against GSI under the Equal Pay Act did not

relate back to her ADEA claim found in her original complaint,

which was filed on December 30, 2005, because “Marshall’s

original complaint alleging only an ADEA violation gives no hint -4-

of any pay discrimination grievance and alleges no facts that

would support a claim under the equal pay act.”

.

The February 26 opinion dismissed Marshall’s claims against

GSI and SGT for age discrimination under the ADEA and Maryland

law because Marshall failed to file an administrative charge

within 300 days of the alleged discriminatory act, as is required

by the ADEA, and because Marshall failed to file an

administrative charge within six months of the alleged injury, as

is required under Maryland law.

(d)(2); Md. Code

49B §§ 9A(a), 42(b)(2). The opinion further determined that

Marshall’s age discrimination claims did not relate back to her

original administrative charge because Marshall’s administrative

charge failed to contain “any hint of the possibility of a claim

based on age discrimination.” Marshall,

.

Marshall seeks reconsideration.

DISCUSSION

Under Rule 54(b) of the Federal Rules of Civil Procedure,2

“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

2 The briefs on all sides erroneously cite Federal Rule of Civil Procedure 59(e) as governing this motion. Since the February 26, 2008 opinion and order was not a final judgment disposing of the claims of all parties, Rule 54(b) applies. See Childers v. Slater,

(D.D.C. 2000). -5-

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.” Campbell v. U.S. Dep’t of Justice,

(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,

(D.D.C. 2008) (quoting Christianson v. Colt Indus. Operating

Corp.,

(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.,

(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,

(D.D.C. 2008).

Marshall primarily argues that justice requires

reconsideration of the February opinion because it failed to -6-

consider whether the intake interview form Marshall says she

filed with the PGCHRC in December 2003 constituted a charge

alleging violations of the Equal Pay Act and age discrimination

under the ADEA and Maryland state law.3 (Pl.’s Mot. to Alter and

Amend the Ct.’s Order or for Recons. (“Pl.’s Mot. for Recons.”)

at 2.) “To sue on her federal age claim, Marshall was required

first to file an administrative charge within 300 days of the

alleged discriminatory act and then to wait 60 days before filing

a civil action in federal court.” Marshall,

Marshall seems to also argue that the deadline for filing her administrative complaint should have been equitably tolled because the intake officer informed her that she could not file an age discrimination claim. Marshall fails to provide any new evidence regarding this claim, or show that the opinion failed to consider this issue, especially in light of the fact that all three parties argued the issue in their briefs regarding the motions to dismiss (see SGT’s Reply at 8; GSI’s Reply at 3-4; Pl.’s Opp’n to Defs.’ Mots. to Dismiss at 13-15 and Ex. 2) and the February opinion explicitly analyzed this issue and ruled against Marshall. “[W]here litigants have once battled for the court’s decision,” they should [not be] “permitted to battle for it again.” Singh,

(denying motion for reconsideration under 54(b) because, in part, “the Court considered the cases the [defendant] now cites,” and thus the defendant’s “attempt to re-litigate this issue will not be countenanced.”) The February opinion determined that the doctrine of equitable tolling was inapplicable because there was “no evidence that Marshall acted with due diligence to pursue her legal rights” in light of the fact that “Marshall filed her age discrimination administrative charge 735 days after the last of her age related injuries[.]” Marshall,

; see also Rattray v. Lippmann-Milwaukee, Inc., No. 07-C-916,

, at *2-3 (E.D. Wis. October 8, 2008) (“at a certain point, the charging party is responsible for the process issued by the EEOC. [The plaintiff] was given the opportunity to review the Charge for accuracy, and he signed it before it was issued”). -7-

66;

(a). As is mentioned above, Marshall was

required to bring her claims under the Equal Pay Act within two

years of the alleged injury.

(a). To bring an

age discrimination claim under Maryland law, Marshall was

required to bring an administrative claim within six months of

the underlying injury, then wait 45 days before filing suit. Md.

Code 49B § 9A(a). Marshall alleges that she filled out the

initial intake and questionnaire forms with the PGCHRC and

“complained of age discrimination,” but she was “apparently told

by the male intake representative and others that he would not

allow her to file an age claim.” (Pl.’s Mot. for Recons. at 5,

Ex. 1 at 5.)

Marshall argues that under the Supreme Court’s recent

opinion in Fed. Express Corp. v. Holowecki,

(2008), the intake interview form she says she filed constitutes

a “charge of discrimination” that initiated her age

discrimination claims under

(d), as well as the

Equal Pay Act claim she asserts in this case.4 In Holowecki, the

4 The relevant portion of

(d) provides:

No civil action may be commenced by an individual under [the ADEA] until 60 days after a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity Commission . . . . Upon receiving such a charge, the Commission shall promptly notify all persons named in such charge as prospective defendants in the action and shall promptly seek to eliminate any alleged unlawful practice by informal methods of conciliation, conference, and persuasion. -8-

Supreme Court affirmed an EEOC interpretation of the word

“charge,” and found that the plaintiff’s Intake Questionnaire

coupled with its accompanying six-page affidavit explaining the

basis for her charge of age discrimination constituted a charge

with the EEOC.5

. However, the Court explicitly

rejected the plaintiff’s assertion that a “charge need contain

only an allegation of discrimination and the name of the

employer.”

. Instead, the Court determined that an

intake form can constitute a charge only where the intake form is

objectively seen as a request for the agency to take action.

.

Here, assuming that the document plaintiff attached to her

opposition to defendants’ motion to dismiss is a genuine intake

form she filled out with the PGCHRC,6 it suffers from significant

5 This opinion will assume without deciding that an intake form that constitutes a charge under

(d) also constitutes a charge under Maryland Code Art. 49B § 9a. As was noted in the February opinion, the PGCHRC is a designated fair employment practice and notice agency that has a work-sharing agreement with the EEOC such that filing charges with the PGCHRC constitutes filing them with the EEOC. See Rachel-Smith v. FTData, Inc.,

(D. Md. 2003). 6 As is noted in defendant GSI’s reply to Marshall’s opposition to the motions to dismiss, the intake interview form that Marshall attached to her opposition to the motions to dismiss contained nothing “to indicate that [it] is an official form for [the PGCHRC].” The form lacks a form number, a signature page, a date, the name of the intake officer who received it, and a space for a description of defendants’ discriminatory conduct. (See Pl.’s Opp’n to Defs.’ Mots. to Dismiss, Ex. 2.) However, for the purposes of this opinion, the intake interview form submitted by Marshall will be treated as -9-

deficiencies and does not satisfy the threshold under Holowecki

to be considered a charge. First, the intake form does not

identify defendant SGT on it, so it cannot objectively be seen as

a request for the agency to take action against SGT for age

discrimination. (See Pl.’s Opp’n to Defs.’ Mots. to Dismiss, Ex.

2.) Second, the “age” box checked on the intake form indicates

“age under 40,” which is not an actionable claim under the ADEA,

and thus not a charge of ADEA age discrimination against either

defendant. While there is a box listed on the intake form for

age discrimination under the ADEA, Marshall did not check that

box. Third, and most importantly, the intake form submitted by

Marshall did not contain or attach any detailed description of

the discriminatory conduct, much less one given under oath or

under penalty of perjury as the EEOC Form 5 requires. Cf. Fava-

Crockett v. Boehringer Ingelhein Pharms, Inc., No. 08cv0196,

, at *1-3 (W.D. Pa. April 29, 2008) (finding a “charge

of discrimination” where the plaintiff submitted a six-paragraph

letter containing “plaintiff’s and defendant’s names, addresses

and phone numbers; the facts which form the basis for the charge

of discrimination, . . . allegations setting forth that

plaintiff’s claim was based upon the ADEA and Title VII; and a

statement that plaintiff had not instituted state proceedings);

Moore v. Angus Chem. Co., Civil Action No. 07-0415, 2008 WL

genuine. -10-

4491592, at *3 (W.D. La. October 1, 2008) (the plaintiff’s intake

interview form constituted a charge where it contained “express

allegations of discrimination and retaliation,” combined with the

plaintiff’s express request for re-employment in his previous

position).

Marshall’s form does little more than list her identifying

information, identify her employers, and check boxes categorizing

types of discrimination and issues. It is the kind of intake

form containing only a bare allegation of discrimination with

nothing else that Holowecki rejected as constituting a charge as

“contrary to Congress’ expressed desire that the EEOC act as an

information provider and try to settle employment disputes

through informal means[.]”

Respondent’s proposed standard, that a charge need contain only an allegation of discrimination and the name of the employer, falls short. . . . Were that stripped-down standard to prevail, individuals who approach the agency with questions could end up divulging enough information to create a charge. This likely would be the case for anyone who completes an Intake Questionnaire--which provides space to indicate the name and address of the offending employer and asks the individual to answer the question, “What action was taken against you that you believe to be discrimination?”

Holowecki, at 1157. The Court further explained that an intake

form that was intended to be used by the agency to “gain

information” to make a determination “whether it ha[d]

jurisdiction over potential charges” was less likely to be

considered a charge than a form specifically ordering the agency -11-

to initiate action.

. Here, the intake form

submitted by Marshall appears far more likely to be designed to

gain information. It lacks any express command by the plaintiff

to initiate action, it did not require Marshall to be under oath,

and the word “charge” does not appear on it. (See Pl.’s Mem. in

Opp’n. to Mot. to Dismiss Am. Compl., Ex. 2.)

Marshall’s intake form does not constitute a charge, and

justice does not require reconsideration of the February 26, 2008

opinion.

CONCLUSION AND ORDER

Because the plaintiff does not show that justice requires

reconsidering the February 26, 2008 memorandum opinion and order,

it is hereby

ORDERED that the motion [49] for reconsideration of the

February 26, 2008 opinion be, and hereby is, DENIED. It is

further

ORDERED that the February 26, 2008 order to show cause be,

and hereby is, DISCHARGED.

SIGNED this 23rd day of February, 2009.

/s/ RICHARD W. ROBERTS United States District Judge