Opinion
Case No. 01-2367-JAR
January 17, 2003
MEMORANDUM AND ORDER DENYING PLAINTIFF'S MOTION TO RECONSIDER AND ALTER JUDGMENT
This matter is before the Court on Plaintiff's Motion to Reconsider and Alter Judgment (Doc. 45) brought pursuant to Fed.R.Civ.P. 59(e). Plaintiff asks this Court to reconsider and alter a portion of its order granting summary judgment to Defendant (Doc.43). Specifically, Plaintiff seeks reconsideration on two issues: (1) whether the Court misapprehended one of Plaintiff's positions regarding her "opposition" to Title VII discrimination; and (2) whether the Court misapprehended Tenth Circuit law regarding close temporal proximity between protected activities and adverse employment action as insufficient evidence of pretext.
A court may reconsider and alter a prior judgment if it is necessary to correct manifest errors of law or fact or to accept newly discovered evidence. However, this does not include a review of arguments or evidence that could and should have been presented through the summary judgment process. Likewise, it is inappropriate to re-visit issues that have already been addressed. There is no entitlement to a second chance when a party has failed to present its strongest case in the first instance. Three grounds for reconsideration are generally recognized: (1) an intervening change in controlling law, (2) availability of newly discovered evidence, and (3) a need to correct clear error or prevent manifest injustice. Deciding whether to grant or deny a motion to alter or amend a judgment is within the court's discretion.
Buell v. Security General Life Ins. Co., 784 F. Supp. 1533, 1536 (D.Colo. 1992), aff'd, 987 F.2d 1467 (10th Cir. 1993).
Steele v. Young, 11 F.3d 1518, 1520 n. 1 (10th Cir. 1993); Wolfgang v. Mid-American Motorsports, Inc., 914 F. Supp. 434, 438 (D.Kan. 1996); Buell, 784 F. Supp. at 1536.
Comeau v. Rupp, 810 F. Supp. 1172, 1175 (D.Kan. 1992).
Anspach v. Tomkins Indus., Inc., 817 F. Supp. 1499, 1518 (D.Kan. 1993), aff'd 51 F.3d 285 (10th Cir. 1995) (Table).
See, e.g., Eichenwald v. Krigel's, Inc., 908 F. Supp. 1531, 1564-65 (D.Kan. 1995).
Bancamerica Comm. Corp. v. Trinity Indus., Inc., No. 90-2325-GTV, 1995 WL 646790, at *1 (D.Kan. Oct. 19, 1995), citing Hancock v. City of Oklahoma, 857 F.2d 1394, 1395 (10th Cir. 1988).
I. Protected "Opposition" to Discrimination
Plaintiff first argues that this Court misconstrued one of the ways in which she contends she engaged in protected opposition to discrimination. She argues that the Court failed to consider whether her complaints that the University "had failed to take action to correct the underutilization of minorities" constituted protected activity.
Doc. 35 at 23-24. This is the extent to which this argument is made in the initial brief by the plaintiff opposing summary judgment.
The Court denies Plaintiff's motion to reconsider this issue for a number of reasons. First, the issue could and should have been briefed clearly in the summary judgment phase of litigation. It is not newly discovered evidence and it is hardly clear error on the Court's part. The plaintiff made no mention in her prior pleadings of complaints that "the University had discriminated against minorities and females by failing to hire them in certain job groups."
Doc. 46 at 3.
Second, the argument is subsumed by the Court's discussion in its summary judgment order of Plaintiff's complaints that the University was out of compliance with the conciliation agreement. Failure to take action to correct the underutilization of minorities was the third item in the conciliation agreement. The Court clearly held that such general complaints did not constitute protected opposition.
Doc. 43 at 9-10.
Pl. Ex. 22; Doc. 43 at 4.
Third, assuming that the issue may be reconsidered, the case is not analogous to the Sixth Circuit case of Johnson v. University of Cincinnati. In that case, Plaintiff was able to establish opposition to a discriminatory hiring practice. The Sixth Circuit was careful to acknowledge that there were specific actions taken by the plaintiff that sufficiently constituted opposition under Title VII. Specifically, "he opposed conduct which he reasonably believed to be unlawful" by: 1) sending letters to his superiors objecting to the hiring of a specific individual as the Vice-Chairman of the Department of Surgery; and 2) sending a letter to his superiors complaining about a decision to waive advertising for said position. The plaintiff in Johnson was able to clearly articulate opposition to a specific discriminatory hiring practice. In contrast, here Plaintiff can not even identify the discriminatory hiring practice she was opposing. She simply borrowed language from the conciliation agreement and Johnson without pointing to any specific hiring practice that is discriminatory in either her summary judgment brief, or her memorandum in support of reconsideration. This is not an issue that requires this Court to correct clear error or prevent manifest injustice.
215 F.3d 561 (6th Cir. 2000). Plaintiff correctly states that the primary distinction between Johnson and Holden v. Owens-Illinois, 793 F.2d 745 (6th Cir. 1986), is protesting implementation of an affirmative action program versus protesting discrimination that occurs in the hiring process contrary to the law and/or an affirmative action program. Johnson, 215 F.3d at 579.
Id. at 580.
Id.
Id. at 580-81.
II. Close Temporal Proximity as Evidence of Pretext
Close temporal proximity between the protected action and the adverse employment action is relevant to the issue of both causation and pretext. However, this factor does not apply in exactly the same way to both inquiries. As the Court explained in its order, the amount of time between when the protected activity occurred and when the adverse employment action occurred may support an inference of causal connection. In contrast, the great weight of recent Tenth Circuit law supports the proposition that close temporal proximity alone will not support an inference of pretext. This is not to say that it is not a factor in determining whether Defendant's reasons for the adverse employment action are pretextual. That finding simply requires some other evidence in addition to close temporal proximity. Even Ramirez v. Oklahoma Department of Mental Health, relied upon by Plaintiff, required more than just close temporal proximity when it determined that the case was erroneously dismissed. That case also required proof of the underlying circumstances involved. Again, Plaintiff's motion to Reconsider and Alter Judgment is denied as to the pretext issue. None of the grounds for reconsideration are met here. There has been no change in the law; there is no new evidence; and the court did not commit some manifest error in its analysis.
See Doc. 43 at 16, 18-19. Anderson v. Coors Brewing Co., cited by Plaintiff, makes clear the distinction in treatment of temporal proximity: "[a]ssuming the time between Plaintiff's termination and filing her EEOC claim is sufficient to survive summary judgment in regard to establishing a prima facie case, it cannot overcome Defendant's proffered reason for terminating her." 181 F.3d 1171, 1180 (10th Cir. 1999).
E.g., Pastran v. K-mart Corp., 210 F.3d 1201, 1209 (10th Cir. 2000); Anderson, 181 F.3d at 1180; Butler v. City of Prairie Village, 172 F.3d 736, 752 (10th Cir. 1999); Powers v. Tweco Prods. Inc., 206 F. Supp.2d 1097, 1118 (D.Kan. 2002), citing Selenke v. Medical Imaging of Colo., 248 F.3d 1249, 1266 (10th Cir. 2001).
41 F.3d 584, 596 (10th Cir. 1994).
Id.
IT IS THEREFORE BY THE COURT ORDERED that Plaintiff's Motion to Reconsider and Alter Judgement (Doc. 45) is DENIED.