UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MIRLIN S. TOOMER

Plaintiff,

v. No. 11-cv-2216 (EGS) MARK T. ESPER, 1 in his official capacity as Secretary of Defense,

Defendant.

MEMORANDUM OPINION

Plaintiff Mirlin S. Toomer (“Ms. Toomer”), an African-

American woman and a former employee of the United States

Department of Defense’s National Geospatial-Intelligence Agency

(“NGA”), brought this action against the United States Secretary

of Defense (the “Secretary”) under Title VII of the Civil Rights

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

Discrimination in Employment Act (“ADEA”),

et

seq. On July 19, 2017, this Court issued a Memorandum Opinion

and separate Order adopting Magistrate Judge G. Michael Harvey’s

Report and Recommendation (“R & R”), and granting summary

judgment in favor of the Secretary. See Toomer v. Mattis

(“Toomer II”),

(D.D.C. 2017); see also

1 Secretary Esper has been automatically substituted as the defendant in this case. See Fed. R. Civ. P. 25(d). Toomer v. Carter (“Toomer I”), No. 11-cv-2216,

,

at *1 (D.D.C. Mar. 24, 2016).

Pending before the Court is Ms. Toomer’s Motion for Relief

from Judgment pursuant to Federal Rule of Civil Procedure 60(b).

Upon careful consideration of the motion, the response and reply

thereto, the applicable law, and the entire record herein, the

Court DENIES Ms. Toomer’s Motion for Relief from Judgment.

I. Background

The Court assumes the parties’ familiarity with the

background in this case, which is set forth in greater detail in

the prior opinions. See Toomer II,

(incorporating by reference Magistrate Judge Harvey’s thorough

recitation of the facts); see also Toomer I,

, at

*1-*11. The Court will briefly summarize the facts relevant to

the instant motion, and then set forth the procedural

background.

A. Factual Background

Ms. Toomer, an African-American female over the age of

forty, worked as an Imagery Analyst at NGA. Toomer I,

, at *4. In January 2010, Ms. Toomer sponsored Matthew

Esteves (“Mr. Esteves”), a white male, who was a new NGA

employee.

Diana Stiger (“Ms. Stiger”), a white female,

supervised them in her role as NGA’s branch chief.

Ms. Toomer referred to her mentee, Mr. Esteves, as “Pumpkin.”

2 Toomer II,

(Ms. Toomer to Mr. Esteves:

“If you continue to ignore me then I am going to come over there

an[d] smooch you until you acknowledge me!”).

As their friendly mentor-mentee relationship soured,

Ms. Toomer began the process of filing a complaint with the

Equal Employment Opportunity (“EEO”) office in May 2010. Toomer

I,

, at *4. On May 14, 2010, Ms. Toomer lodged an

informal discrimination claim with Ms. Stiger, alleging that

Mr. Esteves called her names and threatened to cut her hair.

Ms. Stiger’s investigation revealed that Mr. Esteves called

Ms. Toomer a “dummy,” and that Ms. Toomer engaged in the banter.

Later, Ms. Toomer voluntarily withdrew her claim.

And

Ms. Stiger issued a letter of caution to Mr. Esteves, requiring

him to attend respect-in-the-workplace training.

.

Mr. Esteves attended the training.

Based upon the human

resources department’s recommendation and Ms. Toomer’s failure

to professionally communicate with her colleagues, Ms. Stiger

also required Ms. Toomer to attend a respect-in-the-workplace

training course.

Ms. Toomer failed to do so.

In May 2010, Ms. Toomer’s mid-year performance review

became available on NGA’s human resources computer software.

. Ms. Toomer’s review, which was prepared by Ms. Stiger in

early 2010, identified several performance deficiencies, and it

stated that a Performance Improvement Plan (“PIP”) was under

3 development to address the deficiencies.

Before issuing the

PIP, Ms. Stiger received complaints from Ms. Toomer’s colleagues

that Ms. Toomer was having a loud telephone conversation at her

workstation on May 17, 2010.

. Unbeknownst to

Ms. Stiger at that time, Ms. Toomer had a loud telephone

conversation with her EEO representative on May 17, 2010

regarding her complaint about Mr. Esteves.

On June 17, 2010,

Ms. Stiger issued a letter of reprimand to Ms. Toomer for the

telephone conversation because employees were prohibited from

having loud, disruptive conversations.

On June 3, 2010, Ms. Toomer took unscheduled leave without

Ms. Stiger’s approval.

While Ms. Toomer contacted another

supervisor regarding her absence, Ms. Toomer failed to follow

the agency’s policy requiring her to contact Ms. Stiger or

leaving her a voicemail message.

A record of Ms. Toomer’s

leave shows that it was approved, and that Ms. Stiger reiterated

the sick-leave policy in the record.

In response, Ms. Toomer

alleged that a white male employee was not disciplined for a

similar violation.

When Ms. Stiger issued a letter of

reprimand, dated June 17, 2010, to Ms. Toomer, Ms. Stiger

reiterated that Ms. Toomer was required to attend the respect-

in-the-workplace training course.

Because Ms. Toomer refused

to attend the course, Ms. Toomer received a one-day suspension

for insubordination.

4 On June 8, 2010, Ms. Toomer approached Ms. Stiger to

request the removal of an action figure, claiming that it was

offensive.

. Representing the mythical creature from

the wild, the action figure was a “Bigfoot” doll.

.

“The action figure was brown in color, made of hard plastic, had

reticulating arms and legs, had fur engraved in the plastic . .

., and was approximately six to eight inches in length.”

The

doll was sold in a box bearing the name “Bigfoot” in large

letters, and it entered NGA as part of a holiday gift exchange

in either December 2008 or December 2009.

One NGA employee—a

white male with a full beard whose nickname was “Bigfoot”—

possessed the action figure until his departure from NGA.

But it remained on display in various positions within NGA,

including on the top of a cubicle cabinet inside the box and

later tangled in web-like strings on a cabinet above the desk of

one of Ms. Toomer’s colleagues.

.

Between June 8, 2010 and June 23, 2010, the “Bigfoot” doll

was tightly wrapped—as if mummified—by a thin white cord from

its ankles to its chest, with additional strands wrapped around

its neck and arms. Toomer II,

. And the

doll hung in the air from a cardboard panel on a cabinet above

the desk of Tom Ryan (“Mr. Ryan”), one of Ms. Toomer’s

colleagues. Toomer I,

, at *6. The panel

resembled a men’s bathroom door, which “was created in silent

5 protest of the perennially malfunctioning men’s bathroom in the

office.”

In response to Ms. Toomer’s request for removal of

the “Bigfoot” doll, Ms. Stiger allegedly stated: “It is not

offensive to me and it is not a monkey. It is an ape. You don’t

know the difference? Do you think of yourself as a monkey?”

But Ms. Stiger denied that conversation.

On June 23, 2010, Ms. Toomer notified NGA’s security team,

and a security officer took photographs of the doll.

.

Ms. Toomer sent a letter, dated July 10, 2010, to an EEO

counselor, raising the June 17, 2010 letter of reprimand and the

issue of the “Bigfoot” doll.

By June 30, 2010, Ms. Stiger

had completed Ms. Toomer’s PIP.

. Ms. Toomer was then

reassigned to a different branch within NGA under the direction

of a different supervisor.

In turn, the PIP completed by

Ms. Stiger was no longer in effect because Ms. Toomer was no

longer under Ms. Stiger’s supervision.

On September 9, 2010, Ms. Toomer inadvertently received an

e-mail intended for NGA’s senior-level management with an

attached spreadsheet containing performance ratings for NGA

employees.

The sender informed Ms. Toomer that the e-mail

contained sensitive and confidential personal information,

consisting of materials that were protected under the Privacy

Act.

On the same day, the deputy director, Mark Dial

(“Mr. Dial”), instructed Ms. Toomer to permanently delete the e-

6 mail and destroy any hard copies.

Ms. Toomer, however,

refused to do so.

Mr. Dial then met with Ms. Toomer, reiterating that she

must delete the e-mail.

Ms. Toomer claimed that Mr. Dial

exhibited disrespectful behavior during the meeting, including:

(1) yelling at her to shut the door and sit down;

(2) threatening to terminate her employment; and (3) slamming

his hands on the table. Toomer II,

.

Instead of deleting the e-mail, Ms. Toomer forwarded to a

colleague the e-mail that contained the Privacy Act materials,

and the colleague printed two hard copies for Ms. Toomer. Toomer

I,

, at *8. Ms. Toomer took the hard copies from

NGA to her home.

From September 10, 2010, to September 21, 2010, Ms. Toomer

did not report to work, and she did so without authorization.

at *8-*9. Mr. Dial sent a memorandum to Ms. Toomer’s home

address on September 14, 2010 with certain directives:

(1) directing her to return to work with all hard copies of the

Privacy Act materials; (2) informing her of the continuing

Privacy Act violation; and (3) warning her that failure to

comply with his directives could result in termination.

. Ms. Toomer asserted claims in a letter, dated September 13,

2010, to an EEO counselor regarding the reprimand letter, doll,

and the denial of training.

. Meanwhile, after

7 receiving Mr. Dial’s September 14, 2010 memorandum, Ms. Toomer

spoke with him over the phone rather than returning to work on

September 17, 2010.

Eventually, Ms. Toomer returned to work.

On September 22, 2010, Ms. Toomer briefly met with Mr. Dial

and a human resources representative, Tom Guercio

(“Mr. Guercio”), in Mr. Dial’s office about the Privacy Act

breach.

Ms. Toomer demanded that security personnel attend

the meeting.

After approximately two minutes, Ms. Toomer

decided to leave the meeting due to the absence of security

personnel.

According to Ms. Toomer, Mr. Dial and Mr. Guercio

ordered her to sit down, and Mr. Dial blocked the door as she

tried to exit his office.

Ms. Toomer testified that

Mr. Guercio grabbed her hand and bent her arm back when she put

her hand on the doorknob.

Ms. Toomer asserted additional

allegations: (1) she screamed; (2) Mr. Guercio released her;

(3) they exited the office; (4) Mr. Dial demanded her telephone

number; (5) Mr. Dial told her that she would be placed on

administrative leave; and (6) she was escorted out of the

building.

In October 2010, Ms. Toomer submitted a formal EEO

complaint.

. Months later, on February 28, 2011, NGA

issued Ms. Toomer a Notice of Proposed Removal.

For the

removal process, the deciding official, David White

8 (“Mr. White”), afforded Ms. Toomer with the opportunity for oral

and written submissions. Def.’s Decl. of Barbara Ritter (“Ritter

Decl.”), ECF No. 68-13 at 27. 2 And NGA received Ms. Toomer’s

response on May 3, 2011.

On June 30, 2011, NGA terminated Ms. Toomer’s employment.

Toomer I,

, at *10. Mr. White issued the final

decision, explaining that he terminated Ms. Toomer because she

repeatedly refused to: (1) delete Privacy Act materials that had

been inadvertently e-mailed to her; and (2) destroy or return

the hard copies of those materials.

Mr. White further cited

Ms. Toomer’s absence without leave on multiple occasions during

the time that her supervisors had attempted to resolve the

Privacy Act breach.

Mr. White rendered the final decision

based on Ms. Toomer’s employment record and meetings with agency

officials, including meetings with Mr. Dial and Mr. Guercio.

Following her termination, Ms. Toomer submitted amendments to

her formal EEO complaint in 2011.

B. Procedural Background

1. Present Lawsuit

On December 14, 2011, Ms. Toomer filed the instant action

under Title VII and ADEA, asserting four claims: (1) racially

2 When citing electronic filings throughout this Opinion, the Court cites to the ECF page number, not the page number of the filed document. 9 hostile work environment (“Count I”); (2) retaliation (“Count

II”); (3) racial discrimination (“Count III”); and (4) age

discrimination (“Count IV”).

at *10-*11. Following the close

of discovery, the Secretary moved for summary judgment on June

5, 2014.

. Thereafter, Ms. Toomer filed a motion for

partial summary judgment as to Count I and for spoliation

sanctions.

On February 23, 2015, this Court referred the

case to Magistrate Judge Harvey for the R & R.

Ms. Toomer

then filed a motion for a hearing on the Secretary’s alleged

spoliation of evidence (i.e. the action figure).

On March 24, 2016, Magistrate Judge Harvey issued the

R & R, recommending that this Court grant the Secretary’s motion

for summary judgment, deny Ms. Toomer’s motion for partial

summary judgment, deny her motion for spoliation sanctions, and

deny her motion for a hearing on the alleged spoliation of

evidence.

. Ms. Toomer filed objections to the R & R—

specifically, objecting to: (1) the R & R’s findings as to her

hostile work environment and retaliation claims (Counts I and

II); and (2) the recommendation to deny her motions for

spoliation sanctions and a hearing. See Toomer II,

; see also Pl.’s Objs., ECF No. 99 at 11, 21, 34, 36,

41. Ms. Toomer did not raise objections to the R & R with

respect to her claims for discrimination based on race and age,

thereby waiving review of Magistrate Judge Harvey’s conclusions

10 as to Counts III and IV. See Toomer II,

(district court may review only those issues that the parties

have raised in their objections to the R & R); see also LCvR

72.3(b).

2. The Court’s Prior Ruling

On July 19, 2017, this Court overruled Ms. Toomer’s

objections to the R & R and adopted the R & R in its entirety.

Mem. Op., ECF No. 105 at 1-2, 44-45. On the same day, the Court

entered a final, appealable Order (“July 19, 2017 Final Order”).

Order, ECF No. 104 at 1-2. The Court held that the Secretary was

entitled to summary judgment. Toomer II,

-

205. First, the Court found that Ms. Toomer failed to prove a

racially hostile work environment claim because her proffered

facts—the display of the action figure, Ms. Stiger’s alleged

comments to Ms. Toomer regarding the action figure, and certain

disciplinary actions taken against Ms. Toomer—were not

sufficiently severe or pervasive to alter the conditions of her

employment or create an abusive work environment.

.

Next, the Court found that Ms. Toomer did not establish a

retaliation claim because the alleged retaliatory actions—

(1) Mr. Dial’s alleged verbal assault; (2) Mr. Guercio’s alleged

physical assault; (3) Ms. Stiger’s alleged threat; (4) the

reprimand for Ms. Toomer’s disruptive phone call; (5) the order

for Ms. Toomer to attend the respect-in-the-workplace training

11 session and the one-day suspension for her failure to attend

that session; (6) the negative performance review and the letter

of reprimand; and (7) the termination—were either not materially

adverse employment actions or justified by the Secretary’s

proffered legitimate, non-retaliatory reasons that Ms. Toomer

failed to rebut as pretext for retaliation.

.

The Court granted summary judgment in favor of the

Secretary as to Ms. Toomer’s retaliatory hostile work

environment claim, reasoning that Ms. Toomer’s list of alleged

grievances failed to meet the threshold for a retaliatory

hostile work environment given that the alleged retaliatory

incidents involved “different people doing different things in

different contexts.”

at 205 (quoting Baird v. Gotbaum,

(D.C. Cir. 2015)). Finally, the Court found that

sanctions for spoliation of evidence—the action figure—and a

hearing regarding the same were unwarranted for two reasons:

(1) the action figure was recovered, located, and presented to

Ms. Toomer for inspection during the litigation; and (2) the

photographic evidence in the record depicted how the action

figure was displayed to Ms. Toomer between June 8, 2010, and

June 23, 2010.

.

Ms. Toomer did not file an appeal with the United States

Court of Appeals for the District of Columbia Circuit (“D.C.

Circuit”). See generally Docket for Civ. Action No. 11-2216.

12 3. Ms. Toomer’s Motion

On July 18, 2018, Ms. Toomer filed a motion for relief from

the July 19, 2017 Final Order pursuant to Rule 60(b)(1) and (6).

See Pl.’s Mot. for Relief (“Pl.’s Mot.”), ECF No. 106 at 1; see

also Pl.’s Mem. of P. & A. in Supp. of Pl.’s Mot. (“Pl.’s

Mem.”), ECF No. 106 at 3-26. Thereafter, the Secretary filed his

opposition brief. See generally Def.’s Opp’n, ECF No. 108.

Ms. Toomer then filed her reply brief. See generally Pl.’s

Reply, ECF No. 109. The motion is ripe and ready for the Court’s

adjudication.

II. Legal Standard

Pursuant to Federal Rule of Civil Procedure 60(b), the

court, “[o]n motion and just terms, . . . may relieve a party or

its legal representative from a final judgment, order, or

proceeding” on one of six enumerated grounds. Fed. R. Civ. P.

60(b). “In considering a Rule 60(b) motion, the district court

must strike a delicate balance between the sanctity of final

judgments . . . and the incessant command of a court’s

conscience that justice be done in light of all the facts.” PETA

v. HHS,

(D.C. Cir. 2018) (citation and

internal quotation marks omitted). “[T]he decision to grant or

deny a [R]ule 60(b) motion is committed to the discretion of the

[d]istrict [c]ourt[.]” United Mine Workers of Am. 1974 Pension

13 v. Pittston Co.,

(D.C. Cir. 1993).

The movant bears “the burden of establishing that its

prerequisites are satisfied.” Owens v. Republic of Sudan,

(D.C. Cir. 2017) (quoting Gates v. Syrian Arab

Republic,

(D.C. Cir. 2011)). A party cannot invoke

Rule 60(b) “simply to rescue a litigant from strategic choices

that later turn out to be improvident.” Good Luck Nursing Home,

Inc. v. Harris,

(D.C. Cir. 1980); accord

Ackermann v. United States,

(1950) (“There

must be an end to litigation someday, and free, calculated,

deliberate choices are not to be relieved from.”).

III. Analysis

In moving for relief from the Court’s July 19, 2017 Final

Order, Ms. Toomer relies upon Rule 60(b)(1) and Rule 60(b)(6).

Pl.’s Mem., ECF No. 106 at 11, 16, 20, 24. 3 Ms. Toomer contends

that she has identified two grounds for relief: (1) “a clear

error in the [C]ourt’s legal reasoning” under Rule 60(b)(1); and

3 Ms. Toomer properly moves for relief from the Court’s July 19, 2017 Final Order under Rule 60(b). Although the Court did not issue a final judgment as a separate document pursuant to Federal Rule of Civil Procedure 58, the Court’s July 19, 2017 Final Order constitutes a final judgment because “when a district court enters an order that would otherwise constitute a final judgment but fails to set it forth in a separate document as required by Rule 58, the judgment is nevertheless considered final 150 days later.” Goddard v. Serv. Employees Int’l Union Local 32BJ,

(D.D.C. 2015) (citing Cambridge Holdings Grp., Inc. v. Fed. Ins. Co.,

(D.C. Cir. 2007)). 14 (2) “the existence of extraordinary circumstances” under Rule

60(b)(6). Pl.’s Reply, ECF No. 109 at 1. The Secretary

disagrees, arguing that Ms. Toomer’s motion is an attempt to re-

litigate the issues that this Court resolved in Toomer II.

Def.’s Opp’n, ECF No. 108 at 3. According to the Secretary,

Ms. Toomer’s motion “rests entirely on her disagreement with

this Court’s legal reasoning in applying the undisputed material

facts, including photographic evidence, to her claims.”

The Court analyzes the parties’ arguments in turn,

concluding that Ms. Toomer fails to meet her burden of

demonstrating that she is entitled to relief under Rule 60(b)(1)

and Rule 60(b)(6).

A. Ms. Toomer Is Not Entitled to Relief Under Rule 60(b)(1)

Rule 60(b)(1) allows the Court to grant post-judgment

relief for “mistake, inadvertence, surprise, or excusable

neglect.” Fed. R. Civ. P. 60(b)(1). Ms. Toomer does not deny

that her motion fails to articulate any mistake, inadvertence,

surprise, or excusable neglect that entitles her to relief under

Rule 60(b)(1). See Pl.’s Reply, ECF No. 109 at 1; see also

Def.’s Opp’n, ECF No. 108 at 3.

Ms. Toomer’s motion is premised on the argument that this

Court “committed clear legal error” when ruling: (1) “‘none of

Ms. Toomer’s proffered facts, taken alone or in combination,

15 suffices to make out a claim of a racially hostile work

environment.’” Pl.’s Mem., ECF No. 106 at 11 (quoting Toomer II,

); and (2) “as a matter of law that each

allegedly retaliatory action by [the Secretary] either did not

constitute an adverse employment action or was justified by a

legitimate, non-discriminatory reason,” id. at 20. And

Ms. Toomer argues that the issue of “whether a district court’s

legal error . . . is redressable under Rule 60(b)(1) presents an

open question within this Circuit.” Pl.’s Reply, ECF No. 109 at

1 (emphasis added).

“Standing alone, a party’s disagreement with a district

court’s legal reasoning or analysis is rarely, if ever, a basis

for relief under Rule 60(b)(1).” Muñoz v. Bd. of Trs. of Univ.

of D.C.,

(D.D.C. 2010). “Federal courts

are split over whether parties may use Rule 60(b) motions to

address alleged mistakes of legal reasoning.” Jordan v. U.S.

Dep’t of Labor,

, 449 (D.D.C. 2019), aff’d,

No. 19-5201,

(D.C. Cir. Jan. 16, 2020). “Many

federal appellate courts do not permit parties to invoke Rule

60(b)(1) to assert that the district court erred in its legal

analysis, reasoning that an appeal is the more appropriate

method of challenging alleged legal mistakes by the court.”

Avila v. Dailey,

, 23 (D.D.C. 2019) (citing

cases). And the courts that allow parties to raise alleged

16 “legal errors” in Rule 60(b)(1) motions involve “circumstances

under which such errors are cognizable” and “usually very

limited, such as an intervening change in law.” Muñoz,

.

Although the D.C. Circuit has “declined to decide whether

errors in legal reasoning may be corrected by Rule 60(b)(1)

motions,” Computer Prof’ls for Soc. Responsibility v. U.S.

Secret Serv.,

(D.C. Cir. 1996), the case law in

this District indicates that Rule 60(b)(1) applies in two

situations: (1) a district court committed “an ‘obvious error,’

such as basing its legal reasoning on case law that it failed to

realize had recently been overturned,” Muñoz,

(citing D.C. Fed’n of Civic Ass’ns v. Volpe,

,

451–53 (D.C. Cir. 1975)); and (2) “in the very limited situation

when the controlling law of the [C]ircuit changed between the

time of the court’s judgment and the Rule 60 motion,” Bestor v.

FBI,

(D.D.C. 2008).

None of those circumstances are present here. The Secretary

argues—and the Court agrees—that Ms. Toomer fails to demonstrate

any error in this Court’s legal reasoning or show that this

Court committed an “obvious error” in granting summary judgment

in favor of the Secretary. Def.’s Opp’n, ECF No. 108 at 4. Nor

does Ms. Toomer assert a change in controlling law between the

entry of the July 19, 2017 Final Order and the filing of her

17 Rule 60(b) motion. See Pl.’s Mem., ECF No. 106 at 11-19, 20-24;

see also Pl.’s Reply, ECF No. 109 at 5-12. Rather, Ms. Toomer

advances the arguments previously made in her motion for partial

summary judgment that were rejected in Toomer I and Toomer II.

Compare Pl.’s Mem., ECF No. 106 at 9-19, with Pl.’s Mem. in

Supp. of Pl.’s Mot. for Partial Summ. J., ECF No. 70 at 7-16.

Relief under Rule 60(b)(1) is unwarranted where a plaintiff,

like Ms. Toomer, points to no “obvious error” and “merely

recycles her twice-rejected arguments[.]” Douglas v. D.C. Hous.

Auth.,

, 5–6 (D.D.C. 2014).

1. Hostile Work Environment Claim

The Court turns to Ms. Toomer’s arguments for post-judgment

relief with respect to her racially hostile work environment

claim. Ms. Toomer argues that “[t]aken either singly or in

combination, the display of the lynched black monkey figure that

was hung near [her] workstation, and Ms. Stiger’s racially

offensive query as to whether [Ms.] Toomer thought of herself

‘as a monkey’ after [Ms.] Toomer complained about the lynched

monkey display, were sufficient to create a racially hostile

work environment.” Pl.’s Mem., ECF No. 106 at 11. The Secretary

contends that “this Court correctly determined that the alleged

conduct was not sufficiently pervasive to support a hostile work

environment claim.” Def.’s Opp’n, ECF No. 108 at 7.

18 To prevail on her hostile work environment claim,

“[Ms. Toomer] must show that [her] employer subjected [her] to

‘discriminatory intimidation, ridicule, and insult’ that is

‘sufficiently severe or pervasive to alter the conditions of

[her] employment and create an abusive working environment.’”

Baloch v. Kempthorne,

(D.C. Cir. 2008)

(quoting Harris v. Forklift Sys., Inc.,

(1993)).

In evaluating this claim, “the [C]ourt ‘looks to the totality of

the circumstances, including the frequency of the discriminatory

conduct, its severity, its offensiveness, and whether it

interferes with an employee’s work performance.’” Ayissi-Etoh v.

Fannie Mae,

(D.C. Cir. 2013) (per curiam)

(quoting Baloch,

).

In applying this framework, the Court concluded that

Ms. Toomer failed to sustain a hostile work environment claim.

Toomer II,

. Ms. Toomer argues that

the Court erred in ruling that her proffered facts failed to

demonstrate a racially hostile work environment. See Pl.’s Mem.,

ECF No. 106 at 11-16. In Ms. Toomer’s subjective view, the

action figure constitutes a racially-insensitive “lynched monkey

display.” Pl.’s Mem., ECF No. 106 at 11; see also Pl.’s Reply,

ECF No. 109 at 7. As the Secretary correctly notes, this Court

in Toomer II found that Ms. Toomer’s characterization of the

action figure was unsupported by the summary judgment record.

19 See Gov’t’s Opp’n, ECF No. 108 at 5.

This Court recognizes that the nation’s shameful history of

negative racial stereotypes is deeply embedded in American

society. See Burkes v. Holder,

(D.D.C.

2013) (Sullivan, J.). And the Court cannot ignore that those

stereotypes persist in present times with characterizations and

depictions of African-Americans as monkeys, apes, beasts, and

animals. 4 Ms. Toomer’s argument—that this Court “committed a

clear legal error when it failed to place the subject display of

the lynched monkey figure in the correct historical context,”

Pl.’s Reply, ECF No. 109 at 8—is unavailing. Ms. Toomer’s own

words belie her assertion. See Pl.’s Mem., ECF No. 106 at 11

(“[T]his Court has previously recognized that monkey and noose

imagery ‘are powerful symbols of racism and violence against

African Americans.’” (quoting Burkes,

)).

In Toomer II, this Court expressly recognized “in the past

that it is reasonable to conclude ‘that the use of monkey

imagery is intended as a racial insult where no benign

explanation for the imagery appears.’”

(quoting Burkes,

). Based on the summary

4 See Kristine Phillips & Lindsey Bever, She Lost Her Job After Calling Michelle Obama an ‘Ape in heels.’ Now She’s Returning to Work, Wash. Post (Dec. 13, 2016) https://www.washingtonpost.com/news/post- nation/wp/2016/12/13/she-lost-her-job-after-calling-michelle- obama-an-ape-in-heels-now-shes-returning-to-work/. 20 judgment record in this case, however, the Court agreed with

Magistrate Judge Harvey’s finding that the action figure—“a

monkey-like, ape-like, or Bigfoot-like action figure”—was

wrapped in the white cord or rope in a manner that could not be

fairly described as hanging from a noose.

. There is

no noose at issue in this case, and there is a benign

explanation for the action figure.

. It is undisputed

that a white male colleague was jokingly referred to as

“Bigfoot.”

Relying on the undisputed photographic evidence,

this Court found that a “reasonable observer of the images that

Ms. Toomer has confirmed show the action figure displayed as she

observed it in her workplace would not describe that action

figure as being hung in a noose.”

(emphasis added).

Next, this Court found that Ms. Stiger’s alleged statement

in response to Ms. Toomer’s complaint of the action figure—“an

unambiguously non-racial workplace display”—fails to rise to the

requisite level of severity to constitute a racially hostile

work environment.

. To support her position,

Ms. Toomer relies on the D.C. Circuit’s decision in Ayissi-Etoh

v. Fannie Mae,

(D.C. Cir. 2013) for the proposition

that “the single instance of Ms. Stiger asking [Ms.] Toomer

whether [she] thought of herself as a monkey was sufficient to

create a hostile work environment.” Pl.’s Mem., ECF No. 106 at

15.

21 The D.C. Circuit recognized that the “single incident [of

using the n-word] might well have been sufficient to establish a

hostile work environment.” Ayissi-Etoh,

(emphasis added);

(Kavanaugh, J., concurring) (“[I]n

my view, being called the n-word by a supervisor—as [plaintiff]

alleges happened to him—suffices by itself to establish a

racially hostile work environment.”). As explained in Toomer II,

the D.C. Circuit in Ayissi-Etoh suggested, without holding, that

“the use of an unambiguously racial epithet such as ‘nigger’ by

a supervisor” could alone be sufficient to establish a hostile

work environment. Toomer II,

(emphasis

added; internal quotation marks omitted) (quoting Ayissi–Etoh,

). Nonetheless, Ayissi-Etoh is distinguishable

from this case.

In Ayissi-Etoh, an African-American employee brought

various claims against his employer, including a hostile work

environment claim under

.

. 5

The plaintiff alleged that, after receiving a promotion, but

being denied a salary increase, his manager told him: “For a

young black man smart like you, we are happy to have your

expertise; I think I’m already paying you a lot of money.”

5 Courts evaluate hostile work environment claims under Section 1981 and Title VII using the same analytical framework. See Ayissi–Etoh,

. 22 at 574. The plaintiff also alleged that the vice president, on a

separate occasion, shouted at him to “get out of my office

nigger.”

The plaintiff filed an EEOC complaint, his

supervisor allegedly instructed him to either “drop the racial

discrimination claim or be fired,” and the plaintiff was later

terminated.

The D.C. Circuit reversed the district court’s grant of

summary judgment in favor of the employer on the hostile work

environment claim,

, concluding that “a reasonable

jury could find [the manager’s] and [vice president’s] behavior

sufficiently severe or pervasive as to create a hostile work

environment,”

. The D.C. Circuit reasoned that the use

of the n-word alone might have been sufficient to establish a

hostile work environment claim, but the plaintiff alleged more

than the “deeply offensive racial epithet.”

The plaintiff

also alleged: (1) the “young black man” statement; (2) the

plaintiff “having to continue working with [the manager] for

nearly three months, until [the manager] was ultimately fired”;

and (3) the plaintiff being forced to continue working with the

manager “made [the plaintiff] ill and caused him to miss work on

at least one occasion.”

Here, Ms. Stiger’s alleged question to Ms. Toomer—“Do you

think of yourself as a monkey?”—is not akin to the use of the

unambiguously racial epithet by the vice president in Ayissi-

23 Etoh. As this Court previously explained, “Ms. Stiger’s

offensive question is more akin to the sort of derogatory

remarks that courts in this Circuit have deemed non-actionable

in the past.” Toomer II,

(citing cases).

Relying on the principles espoused in Ayissi-Etoh, this Court

found that “Ms. Toomer has not pointed to a sufficiently

pervasive pattern of racially hostile conduct.”

. This

Court reasoned that “a reasonable observer would not view the

action figure display as a ‘racially offensive event,’ so

Ms. Stiger’s comment—‘Do you think of yourself as a monkey?’—was

not ‘part of a pervasive pattern of hostility and ridicule’ that

is necessary to sustain a hostile work environment claim on

pervasiveness grounds.”

(citations omitted). And, unlike the

plaintiff in Ayissi-Etoh who was forced to continue working with

the manager, Ms. Toomer was eventually reassigned from

Ms. Stiger’s unit.

. None of Ms. Toomer’s

arguments alter the Court’s legal conclusion that her proffered

facts failed to create a racially hostile work environment.

2. Retaliation Claim

The Court next considers Ms. Toomer’s argument that this

Court “committed clear legal error when it ruled as a matter of

law that each allegedly retaliatory action by Defendant either

did not constitute an adverse employment action or was justified

by a legitimate, non-discriminatory reason.” Pl.’s Mem., ECF No.

24 106 at 20. The Secretary argues that the Court’s previous ruling

“undertook a detailed discussion of the undisputed record

evidence and properly concluded that there was no basis for

[Ms. Toomer’s] retaliation claims.” Def.’s Opp’n, ECF No. 108 at

7-8. For the reasons explained below, Ms. Toomer fails to

demonstrate that this Court committed an “obvious error” because

she does not point to a single controlling decision that this

Court failed to consider in rejecting her arguments in Toomer

II. See Muñoz,

.

To prevail on her retaliation claim, “[Ms. Toomer] must

first establish a prima facie case of retaliation by showing

(1) that [she] engaged in statutorily protected activity;

(2) that [she] suffered a materially adverse action by [her]

employer; and (3) that a causal link connects the two.” Jones v.

Bernanke,

(D.C. Cir. 2009). If the plaintiff

establishes a prima facia case, the burden shifts to the

employer to articulate a legitimate, non-retaliatory reason for

its actions.

“If the employer does so, the burden-shifting

framework disappears, and a court reviewing summary judgment

looks to whether a reasonable jury could infer . . . retaliation

from all the evidence[.]”

(citation omitted).

The D.C. Circuit has instructed that “‘the district court

need not—and should not—decide whether the plaintiff actually

made out a prima facie case,’” but the district court should

25 determine whether “all the evidence, taken together, [is]

insufficient to support a reasonable inference of

discrimination.”

at 678 (quoting Brady v. Office of Sergeant

at Arms,

(D.C. Cir. 2008)).

Viewing the evidence in the light most favorable to

Ms. Toomer and giving her the benefit of all reasonable

inferences, this Court concluded that no reasonable jury could

infer retaliation from the evidence in this case. Toomer II,

. In her Rule 60(b) motion, Ms. Toomer

repeats the same arguments that were rejected in Toomer II. See

Pl.’s Mem., ECF No. 106 at 20-24; see also Def.’s Opp’n, ECF No.

108 at 7-9. Ms. Toomer argues that she was subjected to

retaliation in a number of ways, including being ordered to

attend a respect-in-the-workplace training after she complained

to Ms. Stiger and the EEO about “Mr. Esteves’s aggressive and

sexually offensive harassment.” Pl.’s Mem., ECF No. 106 at 21.

Putting aside the fact that there are no allegations of

discrimination based on sex or gender, there is no dispute that

Ms. Toomer withdrew her harassment claim as to Mr. Esteves. See

id.; see generally Compl., ECF No. 1 at 2-16. Contrary to

Ms. Toomer’s contention that her supervisor “purposefully

intimidated [her] and dissuaded her from pursuing her EEO

complaint,” the record proves otherwise. Pl.’s Mem., ECF No. 106

at 21. This Court found that Ms. Toomer failed to offer any

26 evidence of an alleged threat by Ms. Stiger in response to her

harassment complaints as to Mr. Esteves “other than her own

self-serving assertions and that such unsupported, self-serving

assertions do not give rise to a triable issue of fact.” Toomer

II,

.

Ms. Toomer ignores this Court’s finding that Ms. Stiger

ordered her to attend the respect-in-the-workplace training

course, which Ms. Toomer failed to do, because “Ms. Stiger’s

assessment was that, while Ms. Toomer’s co-worker had engaged in

some inappropriate and unacceptable workplace conduct,

Ms. Toomer was ‘feeding the repartee’ with that co-worker.”

(citation omitted). The Court found that Ms. Toomer

failed to rebut as pretext Ms. Stiger’s stated rationale for the

order because “undisputed record evidence confirms that

Ms. Toomer did engage in the sort of repartee with her co-worker

that would likely lead to further words and conduct

inappropriate for the workplace.”

And the Court found that

Ms. Toomer did not produce sufficient evidence for a reasonable

jury to find that her supervisor’s stated reason for the one-day

suspension was not a result of Ms. Toomer’s failure to attend

the training session.

The Court rejects Ms. Toomer’s argument that the letter of

reprimand and negative performance review support her

retaliation claim. See Pl.’s Mem., ECF No. 106 at 21. The D.C.

27 Circuit’s decision in Baloch v. Kempthorne,

(D.C.

Cir. 2008) is instructive on this point. In that case, the D.C.

Circuit held that a letter of reprimand, a letter of counseling,

and an unsatisfactory performance review as alleged retaliation

for the plaintiff’s discrimination complaint did not constitute

materially adverse actions for two reasons. Baloch,

. First, the letter of reprimand “contained no abusive

language, but rather job-related constructive criticism, which

‘can prompt an employee to improve her performance.’”

(quoting Whittaker v. N. Ill. Univ.,

(7th Cir.

2005)). Second, “performance reviews typically constitute

adverse actions only when attached to financial harms” and the

plaintiff was paid at the highest step for his grade.

Like the plaintiff in Baloch, Ms. Toomer did not produce

evidence demonstrating that the letter of reprimand or the

“negative performance evaluation could affect [her] position,

grade level, salary, or promotion opportunities.”

Under the

law of this Circuit, the letter of reprimand for Ms. Toomer’s

failure to adhere to the policies and her negative performance

review are not materially adverse employment actions. See Toomer

I,

, at *25. Even assuming, arguendo, that those

alleged retaliatory acts were materially adverse actions,

Ms. Toomer fails to proffer sufficient evidence to rebut as

pretext her employer’s legitimate, non-retaliatory reasons. See

28 Pl.’s Mem., ECF No. 106 at 21. The issuance of the letter of

reprimand was based on Ms. Toomer’s violations of workplace

policies. Toomer II,

. The PIP

followed the negative performance review issued by Ms. Stiger,

but the PIP was no longer in effect when Ms. Toomer was

reassigned to a different branch under the direction of a

different supervisor.

Ms. Toomer’s next argument—that her termination from

employment constitutes retaliation—fares no better. See Pl.’s

Mem., ECF No. 106 at 22. The Secretary proffered a legitimate,

non-retaliatory reason for Ms. Toomer’s termination when

Mr. White, the deciding official, rendered the termination

decision. Toomer II,

. According to

Mr. White, Ms. Toomer was terminated because she repeatedly

refused to delete, destroy, and return the materials protected

under the Privacy Act.

. Because it is beyond dispute

in the summary judgment record that Ms. Toomer did not comply

with the directives regarding those materials, this Court found

that Ms. Toomer failed to demonstrate that the Secretary’s non-

retaliatory reason was pretextual.

Invoking a theory of discrimination, which is commonly

referred to as the “cat’s paw theory,” 6 Ms. Toomer argues that

6 Under this theory, “if a supervisor” acting within the scope of employment “[1] performs an act motivated by [discriminatory] 29 this Court “erroneously overlooked established law” on that

theory. Pl.’s Mem., ECF No. 106 at 23 (citation omitted); see

also Pl.’s Reply, ECF No. 109 at 11. Ms. Toomer argues that

Mr. Dial and Mr. Guercio influenced Mr. White’s termination

decision, and they were motivated by discriminatory animus in

retaliation for Ms. Toomer’s EEO complaint against them for the

alleged verbal assaults and the alleged physical attack. Pl.’s

Mem., ECF No. 106 at 23-24.

In relying on D.C. Circuit case law, this Court rejected

Ms. Toomer’s “cat’s-paw theory” because Ms. Toomer failed to

produce any evidence that Mr. Dial and Mr. Guercio were

motivated by discriminatory animus when they met with Mr. White

as part of the termination process. Toomer II,

. Nothing in the summary judgment record demonstrates

that Mr. Dial and Mr. Guercio played a role in Mr. White’s final

determination because Mr. White “independently and individually”

made the decision. Toomer I,

, at *10. The Court

found that Ms. Toomer failed to present any evidence that would

allow a reasonable jury to find that Mr. Dial and Mr. Guercio

infected Mr. White’s decision-making process on the basis of

animus [2] that is intended by the supervisor to cause an adverse employment action, and [3] if that act is a proximate cause of the ultimate employment action, then the employer is liable.” Staub v. Proctor Hosp.,

(2011) (footnote omitted). 30 discriminatory animus or that they intended for Ms. Toomer to be

terminated because of the alleged retaliatory incidents. Toomer

II,

. “Because [Ms. Toomer’s] case

founders on the absence of evidence raising a reasonable

inference that [Mr. Dial and Mr. Guercio were] motivated even in

part by racial discrimination, [the Court] need not separately

analyze the causal factors.” Burley v. Nat’l Passenger Rail

Corp.,

(D.C. Cir. 2015).

* * *

Insofar as a plaintiff may rely upon Rule 60(b)(1) to

challenge a prior ruling on the ground that the district court

committed “legal error,” Ms. Toomer fails to demonstrate that

this Court committed “obvious error” in Toomer II, or point to a

change in controlling law between the time of the July 19, 2017

Final Order and her Rule 60(b) motion. See, e.g., Muñoz,

; Bestor,

. Accordingly, the

Court DENIES Ms. Toomer’s motion for relief under Rule 60(b)(1).

B. Ms. Toomer Is Not Entitled to Relief Under Rule 60(b)(6)

Finally, Ms. Toomer argues that she is entitled to post-

judgment relief under Rule 60(b)(6). See Pl.’s Mem., ECF No. 106

at 16-17, 24-25. The Secretary argues—and the Court agrees—that

Ms. Toomer’s “arguments for such relief are not based on any

independent grounds, but rather the same alleged errors that

31 form the basis for her arguments under Rule 60(b)(1).” Def.’s

Opp’n, ECF No. 108 at 10.

Rule 60(b)(6)’s catchall provision permits the Court to

relieve Ms. Toomer from the July 19, 2017 Final Order for “any

other reason” that is not prescribed in the other reasons under

Rule 60(b) only in “extraordinary circumstances.” Cohen v. Bd.

of Trs. of the Univ. of D.C.,

(D.C. Cir. 2016)

(quoting Kramer v. Gates,

(D.C. Cir. 2007)).

Ms. Toomer bears the burden of demonstrating extraordinary

circumstances justifying such relief.

Ms. Toomer fails to do

so, however.

Ms. Toomer’s reliance on the Supreme Court’s decision in

Buck v. Davis,

(2017) is misplaced. See Pl.’s

Mem., ECF No. 106 at 16-17, 24-25. In that case, the petitioner—

an African-American man—was convicted of capital murder, and a

Texas jury sentenced him to death after finding that he was

likely to commit future acts of violence under state law. Buck,

. The jury based its finding on the testimony

of a psychologist that the petitioner’s attorney called to the

stand to testify that the petitioner likely would not engage in

violent conduct.

Although “the psychologist testified that

[the petitioner] probably would not engage in violent conduct,”

the psychologist also testified that: (1) “one of the factors

pertinent in assessing a person’s propensity for violence was

32 his race”; and (2) “[the petitioner] was statistically more

likely to act violently because he is black.”

The petitioner eventually filed a federal habeas corpus

petition under

.

. Because the

petitioner’s ineffective-assistance-of-counsel claim was

“procedurally defaulted and unreviewable,” under then-governing

law,

, the petitioner later sought relief under Rule

60(b)(6) following a change in the governing law that

established an excuse for the procedural default,

.

The Supreme Court held that relief under Rule 60(b)(6) was

available to the petitioner because he established

“extraordinary circumstances” for three main reasons.

First,

the petitioner “may have been sentenced to death in part because

of his race.”

Next, the petitioner’s ineffective-assistance-

of-counsel claim was based on race and “injure[d] not just the

defendant, but ‘the law as an institution, . . . the community

at large, and . . . the democratic ideal reflected in the

processes of our courts.’”

(quoting Rose v. Mitchell,

(1979)). Finally, “[t]he extraordinary nature of

[the] case [was] confirmed by” the refusal of the State of Texas

to confess error in the petitioner’s case, despite admitting the

same error in similar cases and consenting to resentencing.

Unlike the petitioner in Buck, Ms. Toomer fails to present

any facts to support a finding of extraordinary circumstances in

33 this case. Ms. Toomer contends that “[t]he public’s confidence

in the judicial process is severely undermined” if the Court

permits her “to suffer the devastating effects of racial

discrimination in the workplace[.]” Pl.’s Mem., ECF No. 106 at

17. Ms. Toomer’s argument lacks support in the summary judgment

record. See Toomer II,

.

Ms. Toomer’s disagreement with this Court’s prior rulings—that

she fails to establish viable retaliation and hostile work

environment claims—establishes no basis for relief under Rule

60(b)(6)’s catchall category. Accordingly, the Court DENIES

Ms. Toomer’s motion for relief under Rule 60(b)(6).

IV. Conclusion

For the reasons set forth above, the Court DENIES

Ms. Toomer’s Motion for Relief from Judgment. A separate Order

accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge May 26, 2020

34