UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

REBECCA BRITT, Plaintiff, v. Civil Action No. 23-844 (JDB) WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Defendant.

MEMORANDUM OPINION

Rebecca Britt sued her former employer, the Washington Metropolitan Area Transit

Authority (WMATA), under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

After two amendments to the complaint and multiple rounds of briefing on WMATA’s motions to

dismiss the first and second amended complaints, the Court dismissed Britt’s claims for disparate

treatment based on her race and sex as untimely exhausted but denied the motion as to all other

claims, which alleged a hostile work environment based on Britt’s race and sex and retaliation for

seeking redress. Britt now seeks reconsideration of the order dismissing her disparate treatment

claims, arguing that the Court misapprehended the timeline of the disparate treatment alleged in

her Second Amended Complaint (hereinafter “complaint”). Pl.’s Mot. for Recons. of Ct.’s

Dismissal of Counts I & VII on Timeliness Grounds [ECF No. 33] (“Mot.”) at 4. Because Britt

has not shown her entitlement to that rare form of relief, the Court will deny her motion.

Background

The earlier Memorandum Opinion on the operative motion to dismiss describes the

allegations in greater detail, but here are the broad strokes as relevant to this reconsideration

motion. See Mem. Op. [ECF No. 23] at 2–5. Britt’s complaint raised three types of claims. Counts

1 I and VII claimed that her former supervisor, WMATA Deputy Chief Stephen Boehm, subjected

her to disparate treatment on the basis of her race and sex while he supervised her from August

2020 to July 2021. See 2d Am. Compl. Inj. Relief & Compensatory Damages [ECF No. 17]

(“Compl.”) ¶¶ 24, 89; see also id. ¶¶ 118–29, 187–97. 1 Immediately after being transferred out of

Boehm’s supervision, Britt filed an internal complaint regarding that treatment, and alleges that

she then suffered retaliation for complaining—and so Counts II, IV, VI, VIII, and X raised

retaliation claims. See Compl. ¶¶ 130–40, 149–58, 176–86, 198–208, 218–27. Finally, Counts

III, V, and IX alleged that all that mistreatment combined to create a hostile work environment.

See Compl. ¶¶ 141–48, 159–75, 209–17.

WMATA moved to dismiss all counts. 2 As relevant here, it moved to dismiss Counts I

and VII—the disparate treatment counts—as untimely exhausted. See Def.’s Mem. Law Supp.

Mot. to Dismiss Pl.’s 2d Am. Compl. [ECF No. 19-1] (“Mot. to Dismiss”) at 12–13. WMATA

pointed out that Title VII required Britt to complain to the Equal Employment Opportunity

Commission (EEOC) within 180 days of the acts of disparate treatment for which she wished to

sue. Id. & n.7. But the disparate treatment counts, WMATA observed, relied only on Boehm’s

actions while Britt was under Boehm’s supervision—which Britt had escaped more than 180 days

before filing her first complaint. Id. at 13.

Rather than dispel the premise for the untimeliness argument—that her disparate treatment

claims relied only on Boehm’s supervisory treatment of her—Britt’s opposition embraced it, and

simply insisted that it didn’t matter. Her primary rejoinders were legal arguments about the

1 On pages 26 to 27 of the complaint, the paragraphs’ numbering restarts after paragraph 178 and then resumes at 179 ten paragraphs later. Because the Court does not cite any of the interrupting paragraphs individually, it cites to the complaint as labeled without regard to this hiccup.

2 Since then, the parties have stipulated to the dismissal of Counts V and VI. See Def.’s Mot. to Dismiss Counts V &VI of Pl.’s 2d Am. Compl. for Lack of Subj. Matter Jurisd. [ECF No. 27]; Pl.’s Notice Voluntary Withdrawal Counts V & VI of 2d Am. Compl. [ECF No. 32].

2 operation of the exhaustion requirement, not factual ones urging the Court to read her complaint

more capaciously. First, she maintained that a 300-day deadline, not an 180-day deadline, applied

to her claims—and so her claim was timely exhausted because her disparate treatment continued

“until Plaintiff stopped working for DC Boehm in July of 2021,” less than 300 days before she

filed her EEOC charge. Pl.’s Opp’n to Mot. to Dismiss [ECF No. 21] (“Opp’n to Mot. to Dismiss”)

at 15–17. Second, she maintained that a “continuing violation” theory could save her claims even

from a 180-day deadline because Boehm’s “ongoing acts . . . lingered.” Id.

Britt’s argument on the merits similarly relied only on the allegations from her time under

Boehm. In its motion to dismiss, WMATA had argued that, even if the disparate treatment claims

were timely exhausted, they failed to state a Title VII claim on their merits: according to WMATA,

the actions Boehm took against Britt while her supervisor—the only conduct the complaint relied

upon to substantiate its disparate treatment allegations—were insufficiently serious to offend Title

VII. See Mot. to Dismiss at 13–15. Britt’s rebuttal took the premise as given, relying only on

treatment she endured while under Boehm’s supervision to explain why her disparate treatment

claims should survive. See Opp’n to Mot. to Dismiss at 18–19.

So the Court took Britt at her word. It resolved the legal questions in WMATA’s favor:

the 180-day deadline applied, and the continuing violation theory can save only hostile work

environment claims, not disparate treatment ones. Mem. Op. at 11–14 (citing Nat’l R.R. Passenger

Corp. v. Morgan,

, 114–21 (2002)). And applying those holdings to the facts as

alleged, the Court determined the disparate treatment claims could not survive, as they relied on

actions taken while Britt was under Boehm’s supervision—necessarily more than 180 days before

Britt’s first EEOC complaint. Id. at 12. 3

3 Meanwhile, the Court denied the motion to dismiss on all other counts, allowing those to go forward. Mem. Op. at 15–21.

3 Britt now accepts the correctness of both legal determinations. See Mot. at 9. But she

contends that the Court erred in applying those rules to the allegations here because (she argues

now for the first time) her disparate treatment claims do not, in fact, rely only on actions taken by

Boehm as her supervisor. Instead, she says, her disparate treatment claims also relied all along on

Boehm’s “disparate treatment and retaliatory action after [Britt] was no longer reporting to him.”

Mot. at 7.

Legal Standard

Before reaching the merits of Britt’s reconsideration motion, the Court must address the

vehicle she uses to bring it. Both Britt and WMATA style the motion as one under Federal Rule

of Civil Procedure 60(b), which permits a court to “relieve a party . . . from a final judgment, order,

or proceeding” under certain (and highly constrained) circumstances. Fed. R. Civ. P. 60(b). But

as its text makes clear, the rule applies only to final judgments, not interlocutory ones. See Assoc.

Mortg. Bankers, Inc., v. Carson, Civ. A. No. 17-75 (ESH),

, at *2–3 (D.D.C.

July 9, 2019). A final judgment or order is one “that terminate[s] litigation and [is] subject to

appeal.” Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv.,

(9th Cir. 2018).

The Court’s earlier Memorandum Opinion and accompanying Order, which granted in part and

denied in part WMATA’s motion to dismiss, is not final: it does not terminate the litigation and,

absent certification as a partial final judgment under Federal Rule of Civil Procedure 54(b), is not

appealable. See Black Lives Matter D.C. v. Trump,

, 13 (D.D.C. 2024); see also

Potts v. Howard Univ. Hosp.,

(D.D.C. 2009) (partial grant of motion to

dismiss not final order for Rule 60(b) purposes).

So Rule 60(b) is of no use here. But that is good news, not bad news, for Britt. The proper

rule for requesting reconsideration of an interlocutory order is the “more flexible” Rule 54(b),

4 which permits the Court to “revise[]” such an order “at any time before the entry of a judgment.”

Carson,

, at *3 (first quoting Cobell v. Norton,

(D.D.C.

2004); then quoting Fed. R. Civ. P. 54(b)). Revision should be granted “as justice requires”—for

instance, if the Court “has patently misunderstood a party, has made a decision outside the

adversarial issues presented to the court by the parties, has made an error not of reasoning, but of

apprehension, or where a controlling or significant change in the law or facts has occurred since

the submission of the issue to the court.” Potts,

(cleaned up). Despite its

more permissive nature, however, a Rule 54(b) motion does not grant a do-over; the Court’s

discretion is “subject to the caveat that, where litigants have once battled for the court’s decision,

they should neither be required, nor without good reason permitted, to battle for it again.”

(internal quotation marks omitted).

Analysis

In trying for a second battle, Britt takes two stabs at reframing her case. First, she insists

that the Court simply misread her complaint and briefing. Mot. at 4. Second, she offers that, even

if the Court was right to dismiss on the materials then before it, “recently obtained evidence” shows

that her disparate treatment claims must survive. Id. at 1. This evidence comes in the form of two

emails that she sent to colleagues complaining of Boehm’s behavior after being removed from his

supervision—and within the 180-day window. See Exs. 2 & 3 to Mot. [ECF No. 33-1 at 23–29].

Britt says she may submit these emails now because she did not have access to them when she

filed her Second Amended Complaint. Mot. at 7. As she says in a newly filed declaration, these

emails show that her complaint “contains some, but not every act of discrimination and retaliation

that DC Boehm took against” her. Ex. 5 to Mot. [ECF No. 33-1 at 34–35] (“Britt Decl.”) ¶ 10.

Both arguments fail, however, even under the more generous Rule 54(b).

5 I. The Court did not misunderstand Britt’s submissions.

As for the first argument, the Court did not “patently misunderst[and]” Britt’s submissions.

See Potts,

. It took them as written. Both the complaint and the briefing

scaffolded the disparate treatment claims exclusively with actions Boehm took as Britt’s

supervisor. This was true through multiple rounds of motions to dismiss: after WMATA’s motion

to dismiss the First Amended Complaint on timeliness grounds, see Def.’s Mem. Law Supp. Mot.

to Dismiss Pl.’s 1st Am. Compl. [ECF No. 9-1] at 11, Britt’s Second Amended Complaint made

no effort to clarify that the disparate treatment claims relied on anything but Boehm’s supervisory

actions, see Ex. 2 Mot. to Amend Am. Compl. [ECF No. 15-2] ¶¶ 118–29, 187–97. And Britt did

not fill that gap in her briefing. In her opposition to the motion to dismiss, she argued only for

different deadlines—not, with two fleeting exceptions discussed below, that different

discriminatory conduct showed she satisfied the correct deadline.

Now, having lost the legal fight over the statutory exhaustion deadline, Britt wishes to

backtrack. She makes much of a few hints scattered in the briefing and complaint that, in her view,

show her disparate treatment claims were partially based on acts Boehm took after Britt was

transferred away from his supervision. But these hints don’t come close to establishing that the

Court “patently misunderstood” her. See Potts,

.

Consider first the briefing. The hints came in two offhand comments, one where Britt

mentioned that Boehm’s “antagonistic, disparate and retaliatory treatment of [her] carried on well

after the time she stopped working for him,” and one where she suggested that even if her 300-day

deadline were wrong, Boehm’s “ongoing acts against Plaintiff lingered such that even a 180[-]day

statute of limitation would be satisfied.” Opp’n to Mot. to Dismiss at 16–17. But she did not

elaborate on either comment, and in context they seem to refer to the continuing-violation theory

6 that the Court subsequently rejected. 4 If she meant Boehm’s “linger[ing]” post-supervision acts

to stand alone as disparate treatment claims, it would have been odd indeed for her not to discuss

them when explaining why her disparate treatment claims should survive on the merits.

The complaint fares no better. Britt points first to two paragraphs in Count I that she says

make clear that she intended to raise a disparate treatment claim for actions Boehm took after Britt

left his supervision. See Mot. at 9. The paragraphs read in full:

126. DC Boehm’s acts towards Plaintiff and her Black subordinates created a very hostile and stressful work environment for Plaintiff. 127. As a direct and proximate cause of the disparate treatment Plaintiff was subjected to, Plaintiff suffered from severe mental stress and anxiety, such that she required intervention from a medical provider.

Compl. ¶¶ 126–27. These allegations self-evidently do not do what Britt would have them do.

They say nothing about timing, or even allege any specific act at all. So they do not extend the

temporal scope of Britt’s disparate treatment claims.

Britt also highlights the language her complaint repeated at the beginning of each claim

purporting to “incorporate[] and reference[] all allegations in the previous paragraphs as if fully

restated herein.” See Compl. ¶¶ 118, 187; see also id. ¶¶ 130, 141, 149, 159, 176, 198, 209, 218.

As Britt would have it, this boilerplate statement—although made nine other times throughout the

complaint—made clear that Britt intended to bring paragraphs 93 through 97 within the purview

of the disparate treatment claims. Those paragraphs, which appeared under the “Post-Complaint

Retaliation” heading, discussed the “retaliatory campaign” Boehm allegedly undertook after Britt

complained about him—and, crucially for Britt, after she was no longer under Boehm’s

supervision.

4 Britt no longer contends that the continuing-violation theory applies to disparate treatment claims, nor could she in light of the Supreme Court’s square holding in Morgan,

. See Mot. at 9.

7 But Britt places too much weight on the incantation of “all allegations in the previous

paragraphs.” This routine language cannot obfuscate what the organization of the complaint and

the argument in the briefing make evident: that she was suing for disparate treatment she suffered

while under Boehm’s supervision, and that paragraphs 93 through 97 substantiated her retaliation

claims, not her disparate treatment ones. Britt would have this language obligate the Court to

disregard her consistent framing of her own case and instead search the complaint high and low

for any allegations that could support a timely claim of each sort. That is not the Court’s job, and

in light of the consistent messaging throughout the complaint and the briefing, it cannot be said

that the Court “patently misunderstood” Britt’s claims when it took her word for what those claims

were. See Potts,

; cf. United States v. Dunkel,

(7th Cir.

1991) (per curiam) (“Judges are not like pigs, hunting for truffles buried in briefs.”). 5

II. The new emails do not change the outcome.

Perhaps recognizing that the Court resolved the motion to dismiss in line with what was in

front of it then, Britt’s second argument attempts to place new materials—the emails—before the

Court now. But these emails do not amount to a “significant change in the . . . facts,” Potts,

(quoting Cobell,

), for the simple reason that this is a motion

to dismiss a complaint. A complaint need not—indeed, should not—present evidence

substantiating its allegations. All it does is allege. And nothing prevented Britt from alleging the

5 The Court notes that this ruling does not change the acts for which WMATA may be held liable. By now, all agree that the only (plausibly) timely exhausted acts of disparate treatment are those that occurred within 180 days prior to the EEOC complaint—that is, after Britt left Boehm’s supervision. See Mot. at 9 (not challenging the ruling “that the only acts [of disparate treatment] that Plaintiff could pursue in this case are those that took place within 180 days of when she filed her EEOC charge on February 1, 2022”). And the only allegations Britt highlights that fall within this time period already underpin Britt’s other claims—claims that the Court did not dismiss. So those allegations remain in this case, and they remain potential bases of liability for WMATA. They simply do not give rise to a claim for disparate treatment under Count I or VII, as Britt has not shown her entitlement to reconsideration of the dismissal of those counts.

8 events underlying these emails in any of her three complaints. She was plainly aware of the events

the emails recounted, as she sent the emails and they describe things she says happened to her. If

she wanted the Court to consider those events, she should have included them in her complaint.

This reconsideration motion cannot rescue her from her “voluntary, deliberate, free, untrammeled

choice” not to do so. Black Lives Matter D.C., 720 F. Supp. 3d at 13–14 (quoting Ackermann v.

United States,

(1950)). 6

Conclusion

For the above reasons, the Court will deny Britt’s motion for reconsideration. A separate

order will issue.

/s/ JOHN D. BATES United States District Judge Dated: December 13, 2024

6 It is also worth noting that the only time Britt lacked access to the emails was when she filed the Second Amended Complaint and associated briefing. Because she remained employed by WMATA until then, she had access to the emails when she filed her initial Complaint and First Amended Complaint, see ECF Nos. 1, 4, and when opposing WMATA’s motion to dismiss the First Amended Complaint, see ECF No. 12. In other words, if Britt wished to verify the content and timing of the emails before alleging the events they involve, she had ample opportunity to do so.

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