1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SHARON K. STEWART, Plaintiff,

v. FEDERAL COMMUNICATIONS COMMISSION , Defendant

. Civil Action No. 15-57 (CKK)

MEMORANDUM OPINION (June 1, 2016) Presently before the Court is Pla intiff’s [24] Motion for Relie f from Interlocutory Order. Upon consideration of the pleadings, 1 the relevant legal authorities, and the record as a whole, the Court GRANTS Plaintiff’s Mo tion for Relief from Interlocuto ry Order. The Court shall modify its [19] Order issue d on April 8, 2016 to deny Defendant ’s motion to dismiss Count Five of the Complaint with respect t o Plaintiff’s claim that she suf fered retaliation based on her removal of her duties in pre paring the Section 610 Reports.
I. BACKGROUND On January 14, 2015, Plaintiff, proceeding pro se , filed her Complaint, alleging five claims against her employer, Def endant, the Federal Communicati ons Commission (the “FCC”): (1) “Hostile Work Environment” ( Claim 1); (2) “Discrimination B ased on Gender” (Claim 2); (3) “Reprisal for EEO Filing and Discrim ination” (Claim 3); “Furthe r Reprisal for EEO Filing”

1 The Court’s consideration has focused on the following documen ts: Plaintiff’s Motion for Relief from Interlocutory Order , ECF No. [24]; Defendant’s Memo randum in Opposition, ECF No. [25]; and Plaintiff’s Reply, ECF No. [27].2 (Claim 4)”; and “Higher Level Work , Reprisal, Inference with wo rk and Discrimination Based on Gender” (Claim 5). 2 On April 8, 2016, the Court grante d in part and denied in part Defendant’s [7] Motion to Dismiss in Part and for S ummary Judgment in Part. See Mem. Opinion & Order, ECF Nos. [19], [20]. Specifically, the Court gr anted Defendant ’s motion to di smiss with respect to Count Two (gender discrimination), Count Four (retaliation) and Count Fiv e (gender discrimination and retaliation), and the Court denie d Defendant’s motion to dismis s with respect to Count One (hostile work environment) and deni ed Defendant’s motion for su mmary judgment on Count Three (retaliation). On May 5, 2016, attorney Noah B. Peter s of the law firm Bailey & Ehrenberg entered an appearance on behalf of Plaintiff, who, up until that time, had been proceeding pro se . See Notice of Appearance, ECF No. [23]. On May 17, 2016, Plaintiff ’s counsel filed th e instant [24] Motion to Modify Interlocutory O rder, requesting that the Court amend its Order issued on April 8, 2016 so as to deny Defendant’s m otion to dismiss Count Five of the Complaint with respect to Plaintiff’s claim that she s uffered retaliation based on remova l of her duties in preparing the FCC’s “Section 610 Reports.” 3 See Pl.’s Mot. for Relief, ECF No. [ 24]. Plaintiff contends that the Court’s Memorandum Opinion a pplied an incorre ct legal stand ard, and that relief is warranted pursuant to Federal R ule of Civil Pro cedure 54(b). See id. at 1-3.

2 For a complete re citation of the underlyi ng facts in this cas e see the Court’s Memorandum Opinion issued on April 8, 2016. See Mem. Opinion, ECF No. [20]. 3 In her Complaint, Plaintiff a lleged that “[s]ince 2004,” she had performed “the delegated duties of the Section 610 Report,” which had previously been pe rformed by a now-retired GS-14 attorney—two grade le vels above Plaintiff. See Mem. Opinion, ECF No. [20], at 4. Plaintiff asserts that the FCC is requi red to provide such “Section 610 R eports” as part of a rule review process governed by the Regulat ory Flexibility Act of 1980, 5 U .S.C. § 610 et. seq

. See id. at 4 n. 2.3 Defendant opposes Plaintiff’s moti on, contending that the Court correctly dismissed Plaintiff’s claim that she s uffered retaliation based on remova l of her duties in preparing the Section 610 Reports. See Def.’s Opp’n, ECF No. [25]. II. LEGAL STANDARD Federal Rule of Civil Procedure 54(b) provides that “any order . . . that adjudicates fewer than all the claims or the right s and liabilities of fewer thanall the parties . . . may be revised at any time before the entry of a judgment adjudicating all the cl aims and all the parties’ rights and liabilities.” A motion to rec onsider brought under Rule 54(b) may be granted “as justice requires.” Singh v. George Wash. Univ. , 383 F. Supp. 2d 99, 101 (D.D.C. 2005) (quoting Cobell
v. Norton , 224 F.R.D. 266, 272 (D.D.C.2004)). Under the “as justice requires standard,” it is appropriate to grant a Rule 54(b) motion “when the Court has patently misunderstood a party, has made a decision outside the adversarial issues presented to the Court by the partie s, [or] has made an error not of reasoning but of apprehension.” Lemmons v. Georgetown Univ. Hosp. , 241 F.R.D. 15, 22 (D.D.C. 2007) (quoting Singh , 383 F. Supp. 2d at 101). “Errors of apprehension may include the Court’s failure to consider controlling decisions or data that might reasonably be expected to alter the conclusion reached by the Court.” Id. (internal formatting omitted). The Court has broad discretion to consider whether relief is “necessary under the relevant circum stances.” Lewis v. District of Columbia , 736 F.Supp.2d 98, 102 (D.D.C. 2010) (internal quotation marks omitted). The party moving the Court to reco nsider its decision carries the burden of proving that some harm would accompany a denial of the motion to reconsider: “In order for justice to require reconsideration, logica lly, it must be t he case that, s ome sort of ‘injusti ce’ will result if reconsideration is refused. That is, the movant must demonstra te that some harm, legal or at4 least tangible, would flow from a denial of reconsideration.” Cobell , 355 F. Supp. 2d at 540. Finally, “even if the appropriate legal standard does not indic ate that reconsideration is warranted, the Court may neverthe less elect to grant a motion f or reconsideration if there are other good reasons for doing so.” Id. III. DISCUSSION Plaintiff contends that the C ourt erred when it dismissed Plain tiff’s claim for retaliation for removing her duties in prepar ing the Section 610 Reports (p art of Count Five of her Complaint). Pl.’s Mot. for Re lief, ECF No. [24], at 1. Plaint iff asserts that in the Court’s Memorandum Opinion issued on April 8, 2016, the Court “analyzed Ms. Stewart’s retaliation claim using the ‘adverse action’ standard for discrimination cl aims, requiring that there be ‘a tangible effect on the terms, conditions, or privileges of empl oyment[,]’ [b]ut under Burlington N. & Santa Fe Ry. Co. v. White , a lower standard applies to ret aliation claims: whether the action ‘might have dissuaded a reasona ble worker from making or suppor ting a charge of discrimination.’ ” Pl.’s Mot. f or Relief, ECF No. [24], at 1 ( quoting White , 548 U.S. 53, 68 (2006)). Defendant disagrees that a “lower standard” applies to employme nt-related actions occurring in the retaliatio n context, and contends that the Court correctly dismissed Plaintiff’s retaliation claim because Plaintiff did not allege in her Compl aint that she experienced any materially adverse consequences affecting the terms, conditions, or privil eges of her employment. See Def.’s Opp’n, ECF No. [25], at 3-4. The Court begins by clarifying the “adverse action” standard ap plicable to Plaintiff’s retaliation claim under Title VII. In order to succeed on her claim, Plaintiff must demonstrate that she was subjected to an adve rse employment action that is “material,” i.e. , “ harmful to the point that [it] could well dissuade a reasonable worker from making or supporting a charge of5 discrimination .” Gaujacq v. EDF, Inc. , 601 F.3d 565, 577 (D.C. Cir. 2010) (quoting White , 548 U.S. at 57) (emphasis added). I n determining whether a particu lar action would dissuade a reasonable worker from pursuing acharge of discrimination, cou rts look to the “particular circumstances” of the action, so a s to determine whether the ad verse action resulted in an objective harm on the worker. See Burlington , 548 U.S. at 68-69; see also id. at 68 (“We refer to reactions of a reasonable employ ee because we believe that the provision’s standard for judging harm must be objective.”). Lateral transfers and reassignments of duties may qualify as adverse employment actions “if they resul t in ‘materially adverse conse quences affecting the terms, conditions, or privileges’ of the plaintiff’s employment.’ ” Pardo-Kronemann v. Donovan , 601 F.3d 599, 607 (D.C. Cir. 2010) (quoting Stewart v. Ashcroft , 352 F.3d 422, 426 (D.C. Cir. 2003)). The United States Court of Appeal s for the District of ColumbiaCircuit (the “D. C. Circuit”), has held that “whether a particular reassignment of duties constitu tes an adverse action is generally a jury question.” Pardo-Kronemann , 601 F.3d at 607 (quoting Czekalski v. Peters , 475 F.3d 360, 365 (D.C. Cir. 2007)). Plaintiff asserts that the “adve rse action” standard for retali ation claims is a “lower standard” than the “adverse acti on” standard for discriminationclaims. However, Plaintiff cites no authority for that assertion, and appears to mischaracterize controlling case law. As observed by the D.C. Circuit, the Supreme Court has “distinguished Title VII’s anti-retaliation provision from its substantive antidisc rimination provision” by holding t hat “the proscription against retaliation sweeps more broadly than the proscription again st gender discrimination.” Gaujacq , 601 F.3d at 577. Moreover, as the D.C. Circuit observed in Baloch v. Kempthorne , 550 F.3d 1191, 1198 (D.C. Cir. 2008): “Adverse actions” in t he retaliation contex t encompass a broade r sweep of actions than those in a pure discrimina tion claim. Due to differences in the language and6 purposes behind Title VII's retaliation and discrimination prov isions, the Supreme Court clarified in Burlington N. & Santa Fe Ry. Co. v. White , that the requirements are distinct: Retal iation claims are “not limited to discriminatory actions that affect the terms and conditions of employment” and may extend to harms that are not workplace-related or emp loyment-related so l ong as “a reasonable employee would have found the challenged action mate rially adverse.” Baloch, 550 F.3d at 1198 (internal citati ons omitted). Accordingly, it would be inaccurate to describe the “adverse action” s tandard for retaliation claims a s a “lower standard” than the “adverse action” standard for disc rimination claims.” Rather, the requirements are “distinct.” Id. In any event, the Court shall eval uate Plaintiff’s claim in acc ordance with the “adverse action” standard set forth by controlli ng authorities, which the Court described above. In this case, Plaintiff’s Complaint—which Plaintiff drafted pro se —contains only two sentences regarding the removal of her duties in connection wit h the Section 610 Reports. Specifically, the Complaint alleges: Because my performing higher level work and not receiving adequ ate pay was a component of the EEO complaint, Mr. Fleming-Williams [a manager from Human Resources] immediately removed my substantive duties in connect ion with the Section 610 and ultimately the entire duties. Consequently, Se ction 610 Reports for 2011, 2012, 2013, and 2014 have not been done: these report cy cles remain delinquent as of January 2015. Compl., ECF No. [1], at 6 (emphasis in original). In moving to dismiss, Defendant argued that Plaintiff’s Complaint failed to state a claim for retaliation b ased on her work on the Section 610 Reports, Def.’s Mot. to Dismiss, ECF No. [7], at 19, and that t he “sparse and confusing allegations concerning the Section 610 report fall well below the standard necessary to plead a retaliation claim,” Def.’s Reply in Support of Mot. to Dismiss, ECF No. [16], at 12 . Plaintiff’s response brief, which she drafted pro se , did not address any of Defendant’s legal arguments as to the retaliation claim, and instead attempted to allege additional facts regarding the circ umstances concerning the preparing of the Section 610 Reports. See Pl.’s Opp’n to Def.’s Mot. to Dismiss, ECF No. [11], at 14-15. Importantly, Plaintiff also did not allege in her Complaint, or argue in briefing, that the removal of7 her duties in connection with the Section 610 Reports caused he r any harm. Accordingly, the Court ruled that Plaintiff’s retaliation cla im could not survive Defendant’ s motion to dismiss, holding that “Plaintiff does not allege t hat she has experienced any ma terially adverse consequences that affect the terms, conditions, or pr ivileges of her employment o r future employment opportunities.” Mem. Opinion ( Apr. 8, 2016), ECF No. [20], at 25-26 (citing Burlington Indus., Inc. v. Ellerth , 524 U.S. 742, 753; Czekalski v. LaHood , 589 F.3d 449, 454 (D.C. Cir. 2009). Plaintiff’s instant motion, which was prepared by counsel, pre sents a new, refined argument—that Defendant “deprived Ms. Stewart of the opportunity to achieve a promotion in the future by taking away her significant, higher-level responsibil ity of preparing the Section 610 Reports from her, in retaliation for her protected EEO activity .” Pl.’s Mot. for Relief, ECF No. [24], at 5. 4 Plaintiff now contends that he r claim should not be dismissed because a “reasonable jury might conclude that a retali atory removal of the Section 6 10 duties would dissuade a reasonable employee from engagi ng in protected activity, in lig ht of how essential these duties were to Ms. Stewart achieving apromotion in the future.” Id. at 6. Defendant contends Plaintiff’s retaliation claim fails, even un der Plaintiff’s newly asserted theory, because “the Complaint contains no allegations whatsoev er to infer that the reassigned duties were ‘more arduous’ . . . or that there had been ‘a significant change’ in work assignments[.]” Def.’s Opp’n, ECF No. [25], at 4 (internal citations omitted).

4 In presenting this new argument , Plaintiff’s counsel cites ar guments presented by Plaintiff pro se in her response to Defendant’s motion to dismiss. Those argum ents concerned a different claim—Plaintiff’s discriminati on claim—in which Plaintiff alleg ed that she had not been adequately compensated duri ng her time working on the Section 6 10 Reports. See Pl.’s Mot. for Relief, ECF No. [24], at 5; Pl.’s Opp’n to Def.’ s Mot. to Dismi ss, ECF No. [11], at 13-13. When briefing the motion to dismiss, Plaintiff pro se did not put forward the argument that the removal of her duties concerning the S ection 610 Reports would deprive her of the opportunity to achieve a promotion in the future.8 Upon review of the record presently before the Court, the Court finds that it is plausible that a reasonable person in Plaintiff’s position threatened with the r emoval of the Section 610 duties “might well be dissuaded from engaging in protected activity.” Gordon v. U.S. Capitol Police , 778 F.3d 158, 163 (D.C. Cir. 2015) ( citing White , 548 U.S. at 68-70). Plaintiff, who was proceeding pro se at the beginning of thi s case, did not argue in her Response brief to Defendant’s Motion to Dismiss that the removal of her duties in connection with the Section 6 10 Reports caused her any harm. However, it is clear from the current record that Plaintiff is asserting that the removal of her Section 610 duties diminished her opportunities to achieve future promo tions. See Pl.’s Compl., ECF No. [1], at 6. The Court finds Plai ntiff’s position to have suffic ient factual support in the Complaint to survive a motion to dismiss. See Harris v. D.C. Water & Sewer Auth. , 791 F.3d 65, 68-70 (D.C. Cir. 2015). For example, Plaintiff’s Complaint contains allegations that she performed the Section 610 duties since 2004, and tha t these duties were “high -level duties” previously performed by a GS-14 attorney who was two grade levels above Pl aintiff. Pl.’s Compl., ECF No. [1], at 6. Additionally, the Cour t is mindful that Plainti ff’s Complaint, which was filed pro

se , is to be liberally c onstrued, and that “a pro se complaint, however inart fully pleaded, must be held to less stringent standard s than formal pleadings drafted by lawyers.” Abdelfattah v. U.S. Dep't of Homeland Sec. , 787 F.3d 524, 533 (D.C. Cir. 2015) (quoting Erickson v. Pardus , 551 U.S. 89, 94 (2007)). In light of the foregoing, the Court find s it plausible that a reasonable person in Plaintiff’s position threatened with the removal of the Sect ion 610 duties “might well be dissuaded from engaging in protected activity.” Gordon , 778 F.3d at 163 ( citing White , 548 U.S. at 68-70). The Court’s finding is also s upported by the cases cited by Def endant in briefing the instant motion. In each of those cases, the plaintiff was perm itted to develop her claims through discovery, and there was a clear factual record on which the Co urt could determine conclusively whether or not the disputed act ion resulted in a n objective har m on Plaintiff. See, e.g. , Allen v.9 Napolitano , 943 F. Supp. 2d 40, 45 (D.D.C. 2013), aff'd sub nom. Allen v. Johnson , 795 F.3d 34 (D.C. Cir. 2015). Here, by contrast, the parties are still at the motion to dismiss stage and have yet to begin discovery. In light of the foregoing, the C ourt finds, pursuant to Fed. R. Civ. P. 54(b), that “justice requires” Plaintiff to have an oppor tunity to pursue further di scovery on her claim that the Section 610 responsibilities were s tripped from he r in retaliat ion for filing her EEO complaint.
See Harris , 791 F.3d at 70 (“[The court’s] r ole is not to speculate about which factual allegations are likely to be proved after d iscovery. The only question bef ore [the court at the motion to dismiss stage] is whether the [plaintiff] alleged facts that, t aken as true, render his claim of retaliation plausible.”); see also Massaquoi v. D.C. , 81 F. Supp. 3d 44, 52 (D.D.C. 2015) (“At this stage of the case, the pl aintiff need only plead facts tha t permit the Court to reasonably infer that relieving an employee of duties could dissuade a reasonabl e worker from making or supporting a charge of discriminatio n, regardless of whether th e duties were ‘essential.’”). IV. CONCLUSION For the reasons set forth above, t he Court shall modify its [19 ] Order issued on April 8, 2016 to deny Defendant’s motion to di smiss Count Five of the Co mplaint with respect to Plaintiff’s claim that she s uffered retaliation based on her re moval of her duties in preparing the Section 610 Reports. An appropriate Order accompani es this Memorandum Opinion.

/s/ COLLEEN KOLLAR-KOTELLY United States District Judge