Opinion
Civil No. 3:04-CV-0428-H.
April 7, 2005
MEMORANDUM OPINION AND ORDER
Before the Court are Plaintiff's Motion for New Trial or Relief from Judgment, filed February 22, 2005, and Defendant's Response, filed March 4, 2005. On February 7, 2004, the Court granted Defendant's Motion for Summary Judgment and entered a judgment dismissing all of Plaintiff's claims. (Mem. Op. and Order, entered Feb. 7, 2004; J., entered Feb. 7, 2004.) For the reasons stated below, Defendant's Motion is DENIED.
Plaintiff bases her motion on Federal Rules of Civil Procedure 59(a)-(d), Rule 59(a)(2), Rule 52(b) and Rule 59(e). (Pl.'s Br. at 1-2.) There has not been a trial of Plaintiff's case because Plaintiff's complaint did not survive summary judgment. See Patin v. Allied Signal, Inc., 77 F.3d 782, 785 n. 1 (5th Cir. 1996).
Because Plaintiff filed her motion within ten days of the date of judgment, it should be treated as a Rule 59(e) motion to alter or amend the judgment. FED. R. CIV. P. 59(b), 59(e). "Reconsideration of a judgment after its entry is an extraordinary remedy that should be used sparingly." Templet v. Hydrochem Inc., 367 F.3d 473, 478-79 (5th Cir. 2004) (internal citation and quotation omitted). A "motion to alter or amend the judgment under Rule 59(e) `must clearly establish either a manifest error of law or fact or must present newly discovered evidence' and `cannot be used to raise arguments which could, and should, have been made before the judgment issued.'" Rosenzweig v. Azurix Corp., 332 F.3d 854, 863 (5th Cir. 2003). Plaintiff does not purport to present newly discovered evidence. Instead, Plaintiff relies exclusively on her Response to Defendant's Motion for Summary Judgement, filed December 13, 2004, and re-urges the arguments raised therein. The Court analyzes Plaintiff's alleged manifest errors of fact and law in turn.
The citation "Pl.'s Resp." refers to Plaintiff's Response to Defendant's Motion for Summary Judgment, filed December 13, 2004. "Def.'s App" refers to Defendant's Appendix to Defendant's Motion for Summary Judgment, filed November 15, 2004.
I. Plaintiff's Alleged Manifest Error(s) of Fact
Plaintiff argues that the Court committed a manifest error of fact in "stat[ing] . . . that Plaintiff did not provide evidence as to who made the decision to terminate her and whether such unnamed decision maker participated or influenced that decision, and . . . [that] "Plaintiff fails to identify the decision makers responsible for her termination." (Pl.'s Br. at 2.) Raising an argument "which could, and should, have been made before the judgment," Rosenzweig, 332 F.3d at 863, Plaintiff now directs the Court to pages five and six of her Response, as evidence that she identified the decision maker who terminated her. (Pl.'s Br. at 2, 3.) Notwithstanding the fact that Plaintiff's Response is not evidence, page five and six fail to cite to any supporting evidence.
Plaintiff had multiple opportunities to the raise arguments she is now urging. See Sur-response, filed January 31, 2005, and Second Supplemental Response, filed February 3, 2005. Plaintiff's Sur-response, filed January 31, 2004, was filed without permission. See Local Rule 56.7 ("a party may not, without permission of the presiding judge, file supplemental pleadings, briefs, authorities, or evidence.")
The only cite to record evidence found on either pages five or six is: "(PL APP TAB, Pl. Dep. Ex. 18)." (Pl.'s Resp. at 6, ¶ 18.) The cite, however, fails to reference a specific tab or page of the appendix. ( Id.) With respect to deposition exhibit 18, Plaintiff's Appendix contains no such exhibit. Page 18 of Plaintiff's Response says nothing about who terminated her.
The Court reminds Plaintiff that "when evidence exists in the summary judgment record but the nonmovant fails even to refer to it in the response to the motion for summary judgment, that evidence is not properly before the district court." Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003). Plaintiff is also reminded that once Defendant meets its initial burden of "pointing out to the [Court] that there is an absence of evidence to support [Plaintiff]'s case," Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), Plaintiff is required to "designate specific facts" to the Court showing the existence of a genuine issue of material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Smith ex rel. Estate of Smith v. United States, 391 F.3d 621, 625 (5th Cir. 2004).
That Defendant's Motion may have contained the evidence necessary to prove Plaintiff's case is of no avail because the Court is not required to "sift through the record" to find evidence for the nonmoving party. Malacara, 353 F.3d at 405 (citing Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998)). In response to Defendant's Motion for Summary Judgment, Plaintiff was required but failed to properly cite and identify specific record evidence to explain the precise manner in which the evidence supports her claim. See Ragas, 136 F.3d at 458. Plaintiff's "catch-all" cite that the Response's "Statement of Facts is based on the attached declaration of Plaintiff Jan Bergen . . . (APP TAB 3)" (Pl.'s Resp. at 1), is an insufficient designation of specific facts to show that "a genuine issue of material fact exists for trial." See Matsushita, 475 U.S. at 587; Edwards v. Your Credit, Inc., 148 F.3d 427, 432 (5th Cir. 1998). See Local Rule 56.3(a)(3) (requiring "citations [in the motion] to each page of the appendix that supports each assertion that the party makes concerning summary judgment evidence."); Local Rule 56.5(c) (requiring that briefs contain "citations to each page of the appendix that supports each assertion that the party makes concerning summary judgment evidence."). Plaintiff failed to cite to the pages of her appendix in support of the factual assertions in her Response.
Assuming arguendo that Plaintiff did identify who made the decision to terminate her, Defendant's unrefuted summary judgment evidence proves "that it would have made the same employment decision in the absence of the illegitimate discriminatory motive." Machinchick v. PB Power, Inc., 398 F.3d 345, 355 (5th Cir. 2005). ( See Def.'s App. at 43-45, 50-73.) Without rehashing the burden shifting analysis, the Court reminds Plaintiff that at the final "but for" stage, Plaintiff must produce evidence of a retaliatory motive. ( See Mem. Op. and Order at 21.) Therefore Plaintiff's first alleged manifest error is of no consequence.
Plaintiff, now for the first time, cites the evidence she believes properly identifies the individual(s) who terminated her: Jim Harms, Branch Vice-President. (Pl.'s Br. at 3 (citing Pl's Resp. tab 3 at 5, ¶¶ 17-18).)
Plaintiff also challenges the Court's notation that "[t]he operative facts of Plaintiff's performance are not sharply or even strongly disputed; thus there is no question as to the veracity of Defendant's articulated reason." (Pl.'s Br. at 5 (citing Mem. Op. and Order at 11, 12 n. 6).) Plaintiff re-urges that Bienkowski v. American Airlines, Inc., 851 F.2d 1503 (5th Cir. 1988) controls and, for the first time, now points to her and Defendant's evidence to support her contention that the operative facts regarding her performance are sharply disputed. (Pl.'s Br. at 5 (citing Def.'s App. at 95-97).) Pursuant to Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000), Plaintiff's evidence will raise a genuine issue of material fact if it creates an inference as to "the falsity of the employer's explanation," i.e. "that the defendant's explanation is unworthy of credence." Id. at 143, 147.
Bienkowski remains distinguishable. Summary judgement in Bienkowski was improper because it "it appear[ed] unlikely that both Bienkowski and the [defendant-]supervisors [were] entirely candid." Bienkowski, 851 F.2d at 1507. "Bienkowski[`s] . . . affidavit contained a detailed and specific refutation of American's performance critique. . . . Not only did Bienkowski deny that his performance was criticized by his superiors, but he even denied the occurrence of meetings to discuss his performance, as documented by American's file memoranda." Id. While it is true that Plaintiff vehemently disagrees with the qualitative evaluation of her performance (Pl.'s Decl. at 1-7 (¶¶ 7, 15, 27); Def.'s App. at 43-45, 70-72), Plaintiff's Declaration does not, as did Bienkoski's, (1) deny the occurrence of meetings to discuss his performance; (2) deny that her performance was criticized; or (3) contain, "a detailed and specific refutation" of Defendant's performance critique. See Bienkowski, 851 F.2d at 1507.
Plaintiff's Declaration contains the following general rebuttals to Defendant's performance critique:
I responded point by point to [Supervisor Doug] Loinette about the performance review.
. . I wrote a response to the review disagreeing with most of the statements[.] . . . I met all expectations, including working on renewals 90 days in advance demonstrating an indepth understanding of each risk, making productive sales calls, conducting pre-sales call meetings with Loinette. The only goal I could not make was the sales goal because I had such a poor group of agents.
(Pl.'s Decl. at 2 (¶ 7), 4 (¶ 15), 7 (¶ 27).)
Plaintiff's response to her performance review provides her analysis of why she believes the assessment is inaccurate. (Def.'s App. at 95-97.) The assessment, viewed in conjunction with Plaintiff's response to it, does not create an inference or suggest that Defendant's explanation is unworthy of credence. Plaintiff's mere disagreement with Defendant's qualitative assessment of her performance does not establish a genuine issue of material fact because it does not cast doubt on Defendant's explanation for her termination. (Def.'s App. at 43-45, 50-73; Pl.'s Decl. at 1-2). "The law in this area is clear: an honest belief in a non-discriminatory reason for discharge, even if incorrect, is not discrimination." Smith v. St. Regis Corp., 850 F.Supp. 1296, 1318 (S.D. Miss. 1994), aff'd, 48 F.3d 531 (5th Cir. 1995); see Arrington v. Sw. Bell Tel. Co, 93 Fed. Appx. 593, 599 (5th Cir. 2004) ("Merely disagreeing with an employer's negative performance assessment is insufficient to show pretext.") (citing Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 325 (5th Cir. 2002)); Shackelford v. Deloitte Touche, LLP, 190 F.3d 398, 408 (5th Cir. 1999). Plaintiff's evidence does not call into question the veracity of Defendant's proffered reason. Accordingly, Plaintiff has failed to raise a genuine issue of material fact as to the falsity of Defendant's legitimate non-discriminatory reason for her discharge. Therefore the Court finds no error.
"We no longer ask whether literally little evidence, i.e., a scintilla or less, exists but, whether the nonmovant could, on the strength of the record evidence, carry the burden of persuasion with a reasonable jury." Armstrong v. City of Dallas, 997 F.2d 62, 66 n. 12 (5th Cir. 1993) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)). "Summary judgment is appropriate where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant, or where it is so overwhelming that it mandates judgment in favor of the movant." Id. at 67.
Given the absence of a genuine issue of material fact as to the alleged falsity of Defendant's explanation, Plaintiff's only evidence of age discrimination is the Lillienthal statement and the Foster-Harms statement. The Court has considered the Lillienthal and Foster-Harms statements and remains of the opinion that, without more, the statements do not raise a genuine issue of material fact as to whether Plaintiff's age was a motivating factor in Defendant's decision to terminate her. (Mem. Op. and Order at 13-15.)
II. Plaintiff's Alleged Manifest Error(s) of Law
Plaintiff asserts that the Court drew "inferences in favor of movant and made clear error of law when it found that Plaintiff did not dispute Defendant's criticism of her job performance." (Pl.'s Br. at 4.) Plaintiff relies on Reeves, 530 U.S. 133, Rachid v. Jack In The Box, Inc., 376 F.3d 305 (5th Cir. 2004), and Bienkowski, 851 F.2d 1503, to argue that the Court drew inferences in favor of Defendant. (Pl.'s Br. at 4-9.) Plaintiff challenges the Court's finding that "Plaintiff points the Court to nothing that impugns Defendant's evidence of a legitimate, non-discriminatory reason." (Mem. Op. and Order at 11.) Plaintiff, however, does not offer any new evidence to support her challenge. The Court having previously considered Reeves, Rachid, and the evidence to which Plaintiff now refers, concludes that no clear error was made.
Plaintiff also asserts that the Court has made clear legal errors in its analysis of Plaintiff's application of her Texas Workers' Compensation Act claim. (Pl.'s Br. at 3, 10.) See TEX. LAB. CODE ANN. § 451.001 ("TWCA") (West 2005). Plaintiff's assertion lacks merit. The Texas Supreme Court has articulated the "but for" standard as follows: "An employee can recover damages for retaliatory discharge under the Workers' Compensation Act only if he proves that without his filing a workers' compensation claim, the discharge would not have occurred when it did." Trico Techs. Corp. v. Montiel, 949 S.W.2d 308, 312 (Tex. 1997). This does not mean that the employee must prove she "was fired solely because of the workers' compensation claim." West v. Maintenance Tool Supply Co., 89 S.W.3d 96, 105 (Tex.App.-Corpus Christi 2002, no pet.); Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450-51 n. 3 (Tex. 1996).
By Plaintiff's own account of the evidence (1) she was counseled on April 24, 2003, that she would be terminated if she did not improve her performance (Pl.'s Br. at 2-3); (2) her performance did not improve ( id. at 3); and (3) she was terminated on May 28, 2003. ( Id.) Plaintiff did not produce any competent summary judgment evidence that "but for the filing of the claim, the discharge would not have occurred when it did." West, 89 S.W.3d at 105; Cont'l Coffee, 937 S.W.2d at 450-51. Accordingly, the Court concludes that no error was made.
Plaintiff was also counseled and warned on March 25, 2003. (Mem. Op and Order at 3 (citing Pl.'s Compl. at 5; Def.'s Am. Answer at 6; Def.'s App. at 46, 91-93).)
III. Conclusion
Having found neither a manifest error of law or fact or newly discovered evidence, the Court refuses to reopen the case based on the submissions before it. Rosenzweig v. Azurix Corp., 332 F.3d 854, 863 (5th Cir. 2003); In re Transtexas Gas Corp., 303 F.3d 571, 581 (5th Cir. 2002). Accordingly, Plaintiff's Motion for Relief from Judgment is DENIED.
SO ORDERED.