UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JUDITH A. MANSFIELD, : : Plaintiff, : Civil Action No.: 05-1790 (RMU) : v. : Re Document No.: 36 : JAMES H. BILLINGTON, : Librarian of Congress, : Library of Congress, : : Defendant. : MEMORANDUM OPINION G RANTING THE P LAINTIFF ’ S M OTION FOR R ELIEF U PON R ECONSIDERATION I. INTRODUCTION The plaintiff, an employee at the Library of Congress, originally brought this action alleging gender discrimination under Title VII of the Civil Rights Act of 1694 (“Title VII”), 42 U.S.C. §§ 2000e et seq ., and retaliation under Title VII and the Equal Pay Act (“EPA”), 42 U.S.C. §§ 206 et seq . At the time the plaintiff filed the instant motion, her only remaining claim was for retaliation under Title VII. The plai ntiff is, however, asking the court for relief upon reconsideration of its decision dismissing her retaliation claim unde r the EPA. Because recent case law suggests a shift toward broadening the interpretation of statutory anti-retaliation provisions, the court grants the plaintiff’s mo tion and reinstates her retaliation claim under the
EPA.II. FACTUAL & PROCEDURAL BACKGROUND 1 The plaintiff has been employed at the Library of Congress since 1969. Mem. Op. (Sept. 3, 2008) at 2. In September 2002 and February 2004, the defendant temporarily designated the plaintiff Acting Director for Cataloging and increased her pa y level from GS-15 to the Senior Level. Id . at 3-4. During both of these periods, th e plaintiff received less pay than her male predecessor and other male employees performing similar duties. Id . ¶ 16. In August 2004 the defendant appointed the plaintiff to one of three Assistant Director positions. Id . ¶ 22. Male employees filled the other two positions, though they received pay at the Senior Level, while the plainti ff was paid at the GS-15 level. Id . ¶¶ 22-23. Between October 2004 and March 2005, the plaintiff had several convers ations with her supervisor about the pay difference and requested compensation at a le vel commensurate with that of her male counterparts. Id . ¶ 24. On March 15, 2005, the plaintiff ha nd delivered a letter to the defendant alleging that her pay violated the law and agai n requesting compensation equal to that of her male peers. Id. ¶ 25. On March 31, 2005, the defendant info rmed the plaintiff that it planned to abolish her position, along with the othe r two Assistant Dire ctor positions. Id . ¶ 26. The plaintiff filed her complaint on September 9, 2005. See Compl. On June 1, 2006, the court dismissed the plaintiff’s retaliation cl aim under the EPA. Mem. Op. (June 1, 2006) at 12-15. On September 3, 2008, the court dismissed th e plaintiff’s Title VII gender discrimination claim. Mem. Op. (Sept. 3, 2008) at 11-18. On October 5, 2009, the plaintiff filed a motion for relief upon reconsideration of the court’s or der dismissing her EPA retaliation claim. See Pl.’s Mot. for Relief Upon Recons. (“Pl.’s Mot.”). Th at motion has been fully briefed and the court turns now to the pa rties’ arguments.

1 A more detailed factual description is pr ovided in the court’s memorandum opinions dated June 1, 2006 a nd September 3, 2008.

2III. ANALYSIS A. Legal Standard for Altering or Amending an Interlocutory Judgment A district court may revise an interlocutor y decision “at any time before the entry of judgment adjudicating all the claims and the ri ghts and liabilities of all the parties.” F ED

. R. C IV

. P. 54(b); see also Childers v. Slater , 197 F.R.D. 185, 190 (D.D.C. 2000). The standard for the court’s review of an interlocut ory decision differs from the sta ndards applied to final judgments under Federal Rules of Civil Procedure 59(e) and 60(b). See Muwekma Tribe v. Babbitt , 133 F. Supp. 2d 42, 48 n.6 (D.D.C. 2001) (noting that “mo tions for [relief upon] reconsideration of interlocutory orders, in contrast to motions for [relief upon] rec onsideration of final orders, are within the sound discretion of the trial court”). The primary r easons for altering or amending a judgment pursuant to Rule 59(e) or Rule 60(b) are an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice. Id. ; Firestone v. Firestone , 76 F.3d 1205, 1208 (D.C. Cir. 1996) (per curiam); F ED

. R. C IV . P. 60(b); LaRouche v. Dep’t of Treasury , 112 F. Supp. 2d 48, 51-52 (D.D.C. 2000). Such motions are not routinely granted. See Harvey v. District of Columbia , 949 F. Supp. 878, 879 (D.D.C. 1996). By contrast, under Rule 54(b) is available “as jus tice requires.” Childers , 197 F.R.D. at 190. “As justice requires” indicates concrete considerations of wh ether the court “has patently misunderstood a party, has made a decision outside th e adversarial issues pr esented to the [c]ourt by the parties, has made an erro r not of reasoning, but of appreh ension, or where a controlling or significant change in the law or facts [has occu rred] since the submission of the issue to the
court.” Cobell v. Norton , 224 F.R.D. 266, 272 (D.D.C. 2004) (int ernal citation omitted). These considerations leave a great de al of room for the court’s di scretion and, accordingly, the “as

3justice requires” standard amounts to determin ing “whether [relief upon] reconsideration is necessary under the rele vant circumstances.” Id. Nonetheless, the court’s discretion under Rule 54(b) is limited by the law of the case doctrine a nd “subject to the caveat that, where litigants have once battled for the court’s decision, th ey should neither be required, nor without good reason permitted, to battle for it again.” Singh v. The George Washington Univ. , 383 F. Supp. 2d 99, 101 (D.D.C. 2005) (internal citations omitted). B. The Court Grants the Plaintiff’s Motion for Relief Upon Reconsideration The EPA protects an employee who “has filed any complaint or instituted or caused to be instituted any proceeding under or relate d to [the Fair Labor Standards Act].” 2 29 U.S.C. § 215(a)(3). In dismissing the plaintiff’s EPA retaliation claim, the court held that [t]he plain language of the EPA’s retaliat ion provision expressl y limits the scope of its application. Ball [ v. Memphis Bar-B-Q Co. ], 228 F.3d [360, ]364 [(4th Cir. 2000)]. It discusses the filing of “any comp laint” in the context of formal legal actions, such as instituting proceedings , testifying, and serving on an industry committee. 29 U.S.C. § 215(a)(3). By way of contrast, Title VII protects employees who have “ opposed any practice made an unlawful employment practice by this subchapt er.” 42 U.S.C. § 2000e-3(a ) (emphasis added). The phrase “opposed any practice” is markedly more inclusive than the language of the EPA’s anti-retaliation provision which pr otects the filing of “any complaint” in the context of specific formal actions. See Lambert [ v. Genesee Hosp. ], 10 F.3d [46, ]55 [(2d Cir. 1993)] (explaining that the FLSA, unlike Title VII, prohibits retaliation for “three expres sly enumerated types of conduct”). Mem. Op. (June 1, 2006) at 14. Because the plai ntiff had not filed a formal complaint, but instead had only sent a letter to he r employer, the court ruled that she to state an EPA retaliation claim. Id . at 15. The plaintiff argues that, in the three year s following the court’s dismissal of her EPA retaliation claim, the Supreme C ourt has issued three decision s rejecting a narrow, textual

2 The EPA amended the Fair Labor Stan dards Act (“FLSA”), 29 U.S.C. §§ 207 et seq . Claims for retaliation in violation of the EPA fall under the FLSA, 29 U.S.C. § 215(a)(3).

4analysis of anti-retaliat ion provisions in federal employment statutes. Pl.’s Mot. at 1. The defendant responds that in none of the cases ci ted by the plaintiff did the Court interpret the EPA, but dealt instead with anti-retaliati on provisions contained in other statutes. 3 Def.’s Opp’n at 3, 5. Although the Supreme Court has not direc tly addressed the scope of the anti-retaliation provision in the EPA, the court agr ees with the plaintiff that, in the past three years, the Supreme Court has expressed its inclinati on toward a broad inte rpretation of anti-reta liation provisions in employment discrimination suits. The Supreme Court’s decision in Gomez-Perez v. Potter is particularly persuasive. See generally 128 S. Ct. 1931 (2008). In Gomez-Perez , the Court read into the Age Discrimination in Employment Act of 1976 (“ADEA”), 29 U.S.C. § 633a(a), a proscription against retaliation. Gomez-Perez, 128 S. Ct. at 1935. Despite the fact that the ADEA, unlike the EPA, contains no federal sector anti-retaliation provision, the Court held that, nonetheless, the ADEA prohibits retaliation in federal employment. See generally id . The defendant in Gomez-Perez argued that, because Congress, in the ADEA, specifically pr ohibited retaliation against private sector employees, the absence of a similar provision in the federal sector prov ision evinces Congress’s intent not to provide that pr otection to federal employees. Id . at 1939-40. The Court, however, distinguished the two provisions and their legislative histories, and determined that federal sector retaliation was prohib ited under the ADEA. Id . at 1939-41. Relying largely on Jackson v. Birmingham Board of Education , 544 U.S. 167 (2005) and Sullivan v. Little Hunting Park, Inc. , 396 U.S. 229 (1969), the Court reaffirm ed that “[r]etaliation . . . is another form of intentional . .

3 The defendant also argues that the plaintiff’s motion is untimely. Def.’s Opp’n at 3. Although the timing of the plaintiff’s motion is far from ideal, the court determines that relief upon reconsideration is in the interest of justice in li ght of the changing trend in the interpretation of federal laws prohibiting retaliation in the workplace. See Childers v. Slater , 197 F.R.D. 185, 190 (D.D.C. 2000) (quoting the Advisory Committee Notes to Federal Rule of Civil Procedure 60(b) for the proposition that the court has “complete power” to grant relief upon reconsideration of interlocutory orders “as justice requires”).

5. discrimination.” Gomez-Perez , 128 S. Ct. at 1936 (quoting Jackson , 544 U.S. at 173-74). The Court’s analysis is particularly elucidating under the circumstances, because, unlike here where the EPA does contain a specific anti- retaliation provision, the Gomez-Perez Court read such a provision into the ADEA where no su ch provision was articulated. See generally id

. Likewise, in CBOCS West, Inc. v. Humphries , the Court again favored a broad approach to statutory prohibitions on retalia tion in the federal workplace by comparing the text and intent of 42 U.S.C. § 1982 with that of 42 U.S.C. § 1981 to hold that § 1981 encompasses claims of retaliation despite the fact that it does not e xpressly prohibit of reta liation. 128 S. Ct. 1951, 1961 (2008). Lastly, in Burlington Northern & Santa Fe Railway Co. v. White , the Court liberally interpreted “[t]he scope of [T itle VII’s] antiretaliation provisi on [to] extend[] beyond workplacerelated or employment-related re taliatory acts and harm.” 548 U.S. 53, 67 (2006). That is, despite the fact that a claim of discrimination unde r Title VII must rest on “actions that affect employment or alter the conditions of the wor kplace,” a claim of retalia tion under Title VII can be based on conduct that is not employment-related. Id

. These particularly expansive readings of federal employment discrimination statutes persuade the court that the Supr eme Court favors an increasingly br oad interpretation of statutes containing anti-retaliation provisions. Accordingl y, in light of these recent decisions, the court grants the plaintiff’s motion fo r relief upon reconsideration. See Cobell , 224 F.R.D. at 272 (quoting Bank of Waunakee v. Rochester Cheese Sales, Inc. , 906 F.2d 1185, 1191 (7th Cir. 1990).

6IV. CONCLUSION For the foregoing reasons, the court gr ants the plaintiff’s motion for relief upon reconsideration. An Order consistent with th is Memorandum Opinion was issued on November 12, 2009.

RICARDO M. URBINA United States District Judge

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