MEMORANDUM OPINION
Grаnting the Defendant’s Motion to Alter or Amend Judgment; Finding as Moot the Defendant’s Motion for Summary Judgment on Counts III & IV
I. INTRODUCTION
The only claim left standing in this legal tug-of-war is the plaintiffs retaliation claim based on a 2000 performance evaluation the plaintiff received while employed at the Federal Reserve. Despite the court’s previous denial of its motion for summary judgment regarding this claim, the defendant, the Federal Reserve, requests that the court now revisit and extinguish the plaintiffs retaliation claim. Specifically, the defendant argues that the court erred in not addressing whеther the supervisors responsible for drafting the performance evaluation had knowledge of the plaintiffs protected activity — a necessary element of the plaintiffs prima facie case. The plaintiff retorts that he did not need to establish a prima facie case provided the court determines that the defendant possessed a retaliatory motive in drafting the performance evaluation. Because the court overlooked the plaintiffs inability to establish that his supervisors had knowledge of the protectеd activity, the court cannot conclude that they acted with a retaliatory motive. Therefore, the court grants the defendant’s motion to alter or amend its judgment and dismisses the plaintiffs only remaining claim.
II. BACKGROUND
A. Factual History
The plaintiff, a certified public accountant, was born on May 30, 1948. Am. Compl. ¶ 6. He began working at the defendant’s Division of Reserve Bank Operations and Payment Systems in April 1991. Id. ¶7. In July 1993, the plaintiff transferred to the Division of Banking Supervision and Regulation at a level FR-27. Id. ¶ 8.
The plaintiff alleges that in March 1998, Michael Martinson, his then-supervisor, did not promote him to a manageriаl position at the FR-29 level and instead selected a “woman in her early thirties.” Id. ¶¶ 9-10. The plaintiff suspected that his age or gender was a factor in his nonseleetion, but he did not file a complaint with the Equal Employment Opportunity Commission (“EEOC”) because Martinson and another supervisor, William Ryback, assured him that he would receive a one-level promotion. Id. ¶¶ 11-12.
By September 1998, the plaintiff had not received a promotion. Id. ¶ 13. When he inquired about the delay, Martinson informed him that there was “a policy against providing individual promotions.” Id. A more senior supervisоr, Stephen Schemering, had apparently instructed Ryback and Martinson “to be careful how many people we have at that level.” Id. Nevertheless, Martinson again assured the plaintiff that he would be promoted “with the next group of promotions.” Id. These assurances continued through 1999, and based on these assurances, the plaintiff did not pursue the matter with the defendant’s EEOC office. Id. ¶ 14.
In August 1999, Martinson sent the plaintiff abroad on a teaching assignment. *57 Id. While he was away, a group of employees was promoted while another group received рay increases. Id. The plaintiff, however, was not among those employees that were promoted or received pay increases. Id. When the plaintiff confronted Martinson about his failure to promote him, Martinson stated that he was unable to justify a promotion for the plaintiff because of “the limited nature of [the plaintiffs] work responsibilities.” Id. ¶ 15. As a result, in November 1999 the plaintiff filed an informal charge with the defendant’s EEOC office. Id. ¶ 17. The plaintiff then filed a formal complaint in January 2000 and remained involved in the EEOC process by requesting a hearing in Seрtember 2000 and conducting discovery and fifing various motions. Pl.’s Opp’n to Def.’s Mot. to Alter or Amend J. at 11-14.
The plaintiff alleges that since fifing the EEOC complaint, Martinson “unjustifiably” downgraded the plaintiffs performance evaluations from “outstanding” in 1999 to “commendable” in 2000, 2001, 2002 and 2003. Id. ¶ 18. The plaintiff further alleges that the evaluations inaccurately characterize the plaintiffs performance and have a negative impact on his ability to be promoted and to receive salary increases. Id. ¶¶ 18-19.
B. Procedural History
The plaintiff filed a complaint in this court on October 4, 2004. The plaintiff alleged that his supervisors unlawfully retaliated against him by lowering his performance ratings in 2000, 2001, 2002 and 2003 in violation of Title VII, 42 U.S.C. §§ 2000e-l
et seq.
and the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 633a
et seq.
On June 14, 2005, the defendant filed a motion to dismiss and for summary judgment. Def.’s First Mot. for Summ. J. (“Def.’s First Mot.”). While awaiting the court’s ruling on this motion, the plaintiff filed a motion to amend the complaint. Pl.’s Mot. to Amend Compl. On December 13, 2005, the court granted summary judgment for the defendant on all of the counts except the plaintiffs retaliation claim based on his 2000 performance evaluation. Mem. Op. (Dec. 13, 2005),
Specifically, the court determined that the plaintiff established a prima facie case for retaliation based on the 2000 performance evaluation because the plaintiff engaged in protected activity only five weeks prior. Id. at 300. After establishing that the defendant set forth a legitimate, nondiscriminatory justification for the 2000 performance evaluation — the plaintiffs “assignments required additional work by managers or other analysts, and in other instances, plaintiff did not complete assignments” — the court proceeded to evaluate whether the plaintiff proffered sufficient evidence for a reasonable juror to conclude that the 2000 performance evaluation was downgraded for a discriminatory reason. Id. at 302. Based on the plaintiffs prima facie case; a supervisor’s statement that the plaintiff was “old school”; the plaintiffs assertion that he was never given some of the assignments he allegedly failed to complete; and the plaintiffs assertion that “he and his supervisor agreed that he need not complete a particular assignment,” the court concluded that the plaintiff had satisfied his burden of proof and denied the defendant’s motion for summary judgment as to this claim. Id. at 302.
Less than ten days after the court issued this Memorandum Opinion, the defendant filed a motion to alter or amend the court’s judgment because the court “failed to address the complete absence of any evidence that the supervisors who decided on plaintiffs 2000 performance evaluation” had knowledge of the plaintiffs protected activity,
ie.,
requesting an
*58
EEOC hearing in September 2000. Def.’s Mot. to Alter or Amend J. at 2. While this motion was pending, the court granted the plaintiffs motion to аmend the complaint, Mem. Op. (Aug. 29, 2006),
Exactly thirty days later, the defendant submitted a third motion for summary judgment and a renewed motion to alter or amend the court’s decision as to the plaintiffs retaliation claim based on his 2000 performance evaluation. Def.’s Third Mot. for Summ. J. and Renewed Mot. to Alter or Amend J. (“Def.’s Mot.”). With briefing complete, the court now turns to the defendant’s motions.
III. ANALYSIS
Because the court has previously denied the defendant’s motion for summary judgment on the plaintiffs retaliation claim based on his 2000 performance evaluation, the court addresses the defendant’s renewed motion to alter or amend the court’s judgment rather than the defendant’s motion for summary judgment. Proceeding in this fashion prevents the defendant from taking a “second bite at the apple,”
Sequa Corp. v. GBJ Corp.,
A. Legal Standard for a Retaliation Claim
To prevail on a claim of retaliation, a plaintiff must follow the
McDonnell Douglas
framework.
Morgan v. Fed. Home Loan Mortgage Corp.,
First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of [retaliation], Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant “to articulate some legitimate, [non-retaliatory] reason for the employee’s rejection”.... Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant wеre not its true reasons, but were a pretext for [retalia *59 tion].... The ultimate burden of persuading the trier of fact that the defendant intentionally [retaliated] against the plaintiff remains at all times with the plaintiff.
Tex. Dep’t of Cmty. Affairs v. Burdine,
To establish a prima facie case of retaliation, a plaintiff must show that (1) he engaged in a statutorily protected activity, (2) a reasonable employee would have found the challenged action materially adverse, and (3) there existed a causal connection between the protected activity and the materiаlly adverse action.
Burlington N. & Santa Fe Ry. Co. v. White,
With regard to the first prong of the plaintiffs prima facie case of retaliation, statutorily protected activities include the filing of EEOC complaints.
Forkkio v. Powell,
B. Legal Standard for Rule 59(e) Motion
Federal Rule of Civil Procedure 59(e) provides that a motion to alter or amend a judgment must be filed within 10 days of the entry of the judgment at issue. Fed. R. Civ. P. 59(e);
see also Mashpee Wampanoag Tribal Council, Inc. v. Norton,
C. The Defendant’s Motion is Timely
As a threshold matter, the plaintiff argues that the court should deny the defendant’s renewed motion to alter or amend the court’s judgment because it is untimely. PL’s Opp’n to Def.’s Mot. (“Pl.’s Opp’n”) at 7-8. Federal Rule of Civil Procedure 59(e) requires that motions to alter or amend a judgment be filed within ten days after entry of the judgment. Fed. R. Civ. P. 59(e). The defendant met this requirement by filing its original motion to alter or amend the judgment within ten days after the court issued its opinion addressing the defendant’s first motion for summary judgment.
See
Mem. Op. (Dec. 13, 2005),
The court later denied without prejudice the defendant’s motion to reconsider because the plaintiffs amended complaint su-perceded the first complaint. Mem. Op. (June 11, 2007),
Importantly then, the plaintiffs only surviving claim from the original complaint — the retaliation claim based on the 2000 performance evaluation — remains alive in the amended complaint.
Id.
Consequently, the defendant’s motion requesting that the court alter or аmend its earlier decision denying the defendant’s motion for summary judgment as to this retaliation claim applies with equal force to the amended complaint. And in light of the court’s most recent Memorandum Opinion dismissing all of the new claims alleged in the amended complaint, the retaliation claim is the only claim left for the court’s consideration.
See
Mem. Op. (June 11, 2007),
*61 D. The Court Grants the Defendant’s Renewed Motion to Alter or Amend the Court’s Judgment
The defendant contends that the court, in its Memorandum Opinion issued December 13, 2005,
1. The Plaintiff Failed to Establish that his Supervisors had Knowledge of the Protected Activity
The plaintiffs argument that the court implicitly rejected the defendant’s argument that the plaintiffs supervisors did not have knowledge of the protected activity is incorrect. Although the issue of whether the supervisors had knowlеdge was before the court when it ruled on the defendant’s first motion for summary judgment, the court did not explicitly decide whether the individuals responsible for the plaintiffs 2000 performance evaluation knew about the plaintiffs request for an EEOC hearing five weeks earlier.
Compare
Def.’s Reply to PL’s Opp’n to Def.’s First Mot. 4-5
and
PL’s Sur-reply to Def.’s First Mot. at 3-6
with
Mem. Op. (Dec. 13, 2005),
The court revisits this conclusion because the one letter proffered by the plaintiff that provided the defendant with notice
*62
of the hearing request was sent to the defendant’s EEO Programs Director, Sheila Clark, Pl.’s Opp’n to Def.’s First Mot., Ex. 24, and this is insufficient to impute knowledge to the plaintiffs direct supervisors,
Hazward v. Runyon,
In the alternative, the plaintiff proposes that his supervisors did not need to know of the hearing request because their knowledge of the formal EEOC complaint, filed in January 2000, coupled with the totality of the circumstances is sufficient “to permit an inference of retaliatory motive.” Pl.’s Opp’n to Def.’s Mot. to Alter or Amend J. at 7. The plaintiff principally relies on
Holcomb v. Powell
to support this proposition, but this reliance is misplaced.
The instant case is markedly different because here the plaintiff alleges a discrete, rather than a continuous, adverse employment action. Am. Compl. ¶¶ 27, 30. And while the plaintiff would have the court “consider all the subsequent conduct by [the plaintiff] and actions by his supervisors” and infer a retaliatory motive, the court declines to do so. Pl.’s Opp’n to Def.’s Mot. to Alter or Amend J. at 13. First, the court notes that the Circuit only referenced the protected activities that occurred while Holcomb remained “languishing in her [ ] netherworld,” implicitly treating her employer’s repeated denials to assign her work on par with her ability as adverse employment actions.
Holcomb,
2. The Plaintiff Cannot Prove a Retaliatory Motive Without First Establishing that his Supervisors had Knowledge of the Protected Activity
The plaintiff argues that failure to establish a prima facie case is not fatal to his claim provided the defendant has set forth a legitimate, nondiscriminatory reason for the adverse employment action. Pl.’s Opp’n to Def.’s Mot. to Alter or Amend J. at 6-7. The plaintiff relies on this Circuit’s decision in
George v. Leavitt,
in which the Circuit recognized the
McDonnell Douglas
burden shifting analysis set forth by the Supreme Court. The Circuit stated, “[flirst the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination,” but it went on to explain that this “framework was never intended to be rigid, mechаnized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.”
George v. Leavitt,
*64
The court, however, revisits its conclusion because it was at least partially based on the incorrect assumption that the plaintiff proved its prima facie case. Mem. Op. (Dec. 13, 2005),
IV. CONCLUSION
For the foregoing reasons, the court grants the defendant’s renewed motion to alter or amend judgment and finds as moot the defendant’s motion for summary judgment as to counts III and IV. An order consistent with this Memorandum Opinion is separately and contemporaneously issued this 10th day of March, 2008.
Notes
. Although the court stated that the defendant had thirty days to "address counts III and IV” of the plaintiff's amended complaint, these counts are identicаl to counts III and IV in the plaintiff's original complaint. Compare Compl. ¶¶ 12-17 with Am. Compl. ¶¶ 26-31. Thus, in light of the court’s earlier decisions, the plaintiff's only remaining claim is his retaliation claim based on the 2000 performance evaluation.
. The plaintiff contends that Rule 59(e) allots the defendant only ten days to renew his mo *61 tion to reconsider. PL’s Opp’n at 8. The plaintiff further avers that this ten-day period begins on the date the defendant knows or should know that its original motion to reconsider has been dismissed without prejudice and that the court “has no discretion to extend this time.” Id. But Rule 59(e) does not prescribe a рeriod for renewing a motion to reconsider, and given the defendant’s compliance with the time limits set forth by the federal rules and by the court, the plaintiff's argument is unconvincing. Fed. R. Civ. P. 59(e). Moreover, even if the defendant's motion was untimely, the court would address the defendant’s motion as a motion to reconsider pursuant to Rule 60(b). Hall v. C.I.A., 437 F.3d 94, 98 (D.C.Cir.2006) (approving of a district court’s treatment of an untimely motion to reconsider under Rule 59(e) as a motion under Rule 60(b)).
. She also wrote several letters to the EEOC, copying the defendant on many of them, in July, August and December 2000 and in January, March and May 2001 alleging similar procedural deficiencies.
Holcomb v. Powell,
. The plaintiff presents inconsistent statements as to the timing of his move "from a window office to a windowless office.” Pl.’s Opp'n to Def.’s First Mot., Exs. 1 ¶ 30 & 31 ¶ 9.
. The plaintiff also argues that the January 2000 filing of the EEOC complaint is sufficient to establish a prima facie case becausе a close temporal proximity is not necessary when the defendant did not have a prior opportunity to retaliate against the plaintiff. Pl.’s Opp'n to Def.’s Mot. to Alter or Amend J. at 12. The court rejects this argument because the plaintiff fails to indicate why other adverse employment actions such as demotions, reduction in responsibility or other “materially adverse consequences affecting the terms, conditions, or privileges of employment or future employment opportunities such that a reasonable trier of fact could find objectively tangible harm” were not available to the defendant before the 2000 performance evaluation.
Forkkio v. Powell,