Opinion
No. 96-4228-SAC.
November 2000.
MEMORANDUM AND ORDER
This employment discrimination case is before the court on the motion (Dk. 198) of the plaintiff, Darline Adams, to alter or amend the judgment entered August 29, 2000 (Dk. 196). Defendant Goodyear Tire Rubber Co. ("Goodyear"), opposes the motion.
Plaintiff's motion to alter or amend is brought pursuant to Fed.R.Civ.P. 59(e), and, despite Goodyear's position to the contrary, was timely filed. Accordingly, the court will resolve that motion as it would a motion to reconsider. As the rules of this court provide, "[a] motion to reconsider shall be based on (1) an intervening change in controlling law, (2) availability of new evidence, or (3) the need to correct clear error or prevent manifest injustice." D.Kan. Rule 7.3.
The judgment, although file stamped August 28, 2000, was not entered on the docket until August 29, 2000. Plaintiff's motion was filed within 10 days thereafter in accordance with the requirements of Fed.R.Civ.P. 59(e), given the exceptions for weekends and legal holidays as set forth in Rule 6.
Although D.Kan. Rule 7.3 is intended to apply only to non-dispositive judgments and orders, Loum v. Houston's Restaurants, Inc., 177 F.R.D. 670, 671 (D.Kan. 1998), a motion to alter or amend is essentially a motion for reconsideration. Hilst v. Bowen, 874 F.2d 725, 726 (10th Cir. 1989).
"A motion to reconsider is not a second chance for the losing party to make its strongest case or to dress up arguments that previously failed." Voelkel v. General Motors Corp., 846 F. Supp. 1482, 1483 (D.Kan.), aff'd, 43 F.3d 1484 (10th Cir. Dec. 21, 1994) (table). Such motions are not appropriate if the movant only wants the court to revisit issues already addressed or to hear new arguments or supporting facts that could have been presented originally. See Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991), cert. denied, 506 U.S. 828 (1992). The decision whether to grant or deny a motion to reconsider is committed to the court's sound discretion. Hancock v. City of Oklahoma City, 857 F.2d 1394, 1395 (10th Cir. 1988).
Plaintiff asserts two reasons for its motion. First, plaintiff alleges that the case of Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000), constitutes a controlling change of the law regarding plaintiff's retaliations claims.
The court disagrees. The court was well aware of Reeves before it issued its order, but did not find then, and does not find now, that it controls the analysis of any issue before this court. Reeves held that an employment discrimination plaintiff's prima facie case, combined with sufficient evidence to find that employer's asserted justification is false, may permit a trier of fact to conclude that an employer unlawfully discriminated, although such a showing by plaintiff will not always be adequate to sustain jury's finding of liability. Id.
This court found that plaintiff failed to make a prima facie case of retaliation, and further found that plaintiff failed to establish that Goodyear's legitimate business reason for the challenged decision was pretextual.
Although every Supreme Court case is significant, and Reeves did abrogate the holdings of some circuits, Reeves does not constitute a significant change in the manner in which the Tenth Circuit, and therefore this court, has traditionally applied McDonnell Douglas and the pretext analysis. Long before plaintiff's case was decided, the Tenth Circuit held that if a plaintiff "presents evidence that the defendant's proffered reason for the employment decision was pretextual — i.e. unworthy of belief, the plaintiff can withstand a summary judgment motion and is entitled to go to trial." Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995). Because plaintiff failed to present any evidence that the defendant's proffered reasons for its employment decisions were unworthy of belief, neither Randle nor Reeves controls any issue in this case.
The plaintiff further alleges that Goodyear's reason for not placing plaintiff in the tube component processor department was false, and that she now has evidence to prove it. Plaintiff requests leave of court to supplement her summary judgment record by providing an affidavit by plaintiff and "Manning Tables" purporting to show that a number of women were employed by defendant in the component processing department at a relevant time.
Plaintiff admits that she had the "new evidence" which she proposes to submit for the court's consideration in her actual possession in July of 1999. (Dk. 198, Exh. C). This court's order was not filed until over a year thereafter. Plaintiff offers no reason for not moving earlier to supplement her summary judgment papers, and the record reveals none . See Anderson v. United Auto Workers, 738 F. Supp. 441, 442 (D.Kan. 1990) (motion to reconsider appropriate when party introduces new evidence that could not have been obtained through exercise of due diligence). While plaintiff refers to the "Manning Tables" as "new evidence," this document was admittedly available to plaintiff prior to the court's summary judgment order. It is the duty of plaintiff's counsel to adequately make a record and to supplement briefs if necessary. Under these circumstances, the court cannot consider evidence not previously included in the parties' summary judgment filings.
Even if the court were to consider the Manning Tables, plaintiff has not shown that such evidence is material or would likely produce a different result if considered. Defendant did not testify that there were no women in the tube component processor job at the relevant time, but that women had found the booking position in that job difficult in the past. The Manning Tables do not address that issue, and thus cannot show the falsity of defendant's testimony.
Plaintiff's second claim of error is that the court erroneously concluded that she had abandoned her claim that Goodyear was liable for sexual harassment by co-employees other than Dewey Washington. Plaintiff points to scattered assertions of fact sprinkled throughout her summary judgment brief, and vague allusions to certain acts by co-employees in her argument regarding other issues.
As the court noted in its decision, many of plaintiff's assertions of fact lacked proper citation to the record. See Dk. 196, p. 3, n. 1; p. 16, n. 5.
The court has taken a second look at these assertions, and reconfirms its finding that plaintiff abandoned any separate claim for sexual harassment by co-employees other than Washington. Neither in her summary judgment briefs, nor in the present motion to reconsider does plaintiff show the court where she responded to Goodyear's evidence and argument that it took appropriate action when she reported such conduct, that such conduct did not occur because of her gender, and that such conduct was insufficiently severe or pervasive to constitute sexual harassment. It is not the duty of the court to marshall the facts and make appropriate arguments for any party. Plaintiff's failure to do so in response to defendant's argument is deemed to be an abandonment. See Palmer v. Unified Government of Wyandotte County/Kansas City, Kan., 72 F. Supp.2d 1237, 1250 (D.Kan. 1999) ("the court deems plaintiff's failure to respond to an argument raised in defendants' papers tantamount to an express abandonment of any such claim."); Wesley v. Don Stein Buick, Inc., 42 F. Supp.2d 1192, 1195 n. 2 (D.Kan. 1999); Ladd v. Hannigan, 962 F. Supp. 1390 (D.Kan. 1997); Sell v. Bertsch Co., Inc., 577 F. Supp. 1393, 1399 (D.Kan. 1984). That error cannot be remedied at this late date. See Voelkel, 846 F. Supp. at 1483.
IT IS THEREFORE ORDERED THAT plaintiff's motion to alter or amend the judgment (Dk. 198) is denied.