Opinion
EP-23-CV-00052-RFC
07-23-2024
JOSE PRECIADO, Plaintiff, v. RECON SECURITY CORP., Defendant.
MEMORANDUM OPINION AND ORDER
ROBERT F. CASTAÑEDA UNITED STATES MAGISTRATE JUDGE
Before the Court is Plaintiff Jose Preciado's “Motion for Reconsideration” (“Motion”) (ECF No. 52), filed on May 10, 2024. Plaintiff brings this motion under Federal Rule of Civil Procedure 54(b) to request that the Court reconsider its grant of partial summary judgment to Defendant Recon Security Corp. For the reasons set forth below, the Court DENIES Plaintiff's motion.
I. BACKGROUND
Defendant provides security guard services to businesses in El Paso, Texas. Macias Aff. Ex. A, at 1, ECF No. 21. Plaintiff worked for Defendant from 2019 to June 2022. Id. at 1-2; Preciado Aff. Ex. A, ¶¶ 2, 38-39, ECF No. 34. Plaintiff states that Defendant failed to properly pay Plaintiff for overtime hours worked. Preciado Aff. Ex. A, ¶¶ 23-24, 34-35. Further, Plaintiff alleges that Omar Macias, the owner of Defendant, sexually harassed Plaintiff at work. Id. ¶¶ 1620, 29-31.
Plaintiff sued Defendant for violations of the Federal Labor Standards Act (“FLSA”)-due to Defendant's alleged failure to pay Plaintiff overtime-on February 6, 2023. See Pl.'s Original Compl. & Jury Demand, ECF No. 1. On March 20, 2023, Plaintiff filed his First Amended Complaint, adding in claims for sexual harassment and retaliation under the Texas Labor Code (also known as the Texas Commission on Human Rights Act, or “TCHRA”). Pl.'s Am. Compl. & Jury Demand ¶¶ 65-66, ECF No. 7.
Defendant filed a motion for summary judgment. See Def.'s Mot. Summ. J., ECF No. 21. Plaintiff filed a motion for partial summary judgment, Pl.'s Traditional Mot. Partial Summ. J., ECF No. 23, on the issue of whether Plaintiff could be classified as Defendant's employee. This Court issued an opinion granting partial summary judgment to Defendant and denying Plaintiff's motion for partial summary judgment. See Mem. Op. & Order [hereinafter Summ. J. Order], ECF No. 39. Specifically, the Court granted summary judgment to Defendant on Plaintiff's claims of retaliation under the FLSA and sexual harassment and retaliation under the TCHRA. Id. at 29-30. Plaintiff subsequently filed this motion, asking the Court to reconsider. See Mot., ECF No. 52.
II. STANDARD
If a motion to reconsider “concerns only interlocutory rulings, the appropriate vehicle for making the motion is the [Federal Rules of Civil Procedure] Rule 54(b) grant of discretion to the district courts.” Livingston Downs Racing Ass'n, Inc. v. Jefferson Downs Corp., 259 F.Supp.2d 471, 474-75 (M.D. La. 2002); see also Austin v. Kroger Tex., L.P., 864 F.3d 326, 336 (5th Cir. 2017) (“Rule 54(b) allows parties to seek reconsideration of interlocutory orders ....”). Rule54(b) provides that “any order or other decision . . . that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties . . . may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.” Fed.R.Civ.P. 54(b). “Under Rule 54(b), ‘the trial court is free to reconsider and reverse its decision for any reason it deems sufficient, even in the absence of new evidence or an intervening change in or clarification of the substantive law.'” Austin, 864 F.3d at 336 (citation omitted).
“Although the precise standard for evaluating a motion to reconsider under Rule 54(b) is unclear, . . . courts still consider the factors that inform the analysis under motions filed under [Federal Rules of Civil Procedure 59 and 60].” Apodaca-Fisk v. Allen, No. EP-19-CV-00259-DCG, 2021 WL 616999, at *2 (W.D. Tex. Feb. 16, 2021). Some of the factors that are considered under a Rule 59 motion are: “(1) the judgment is based upon a manifest error of fact or law; (2) newly discovered or previously unavailable evidence exists; (3) manifest injustice would otherwise result; (4) there has been serious misconduct by counsel; and (5) an intervening change in controlling law alters the appropriate outcome.” Livingston Downs, 259 F.Supp.2d at 475-76. A motion for reconsideration made under Rule 59 or 60 is not “the proper vehicle for rehashing old arguments or advancing theories of the case that could have been presented earlier.” Resol. Tr. Corp. v. Holmes, 846 F.Supp. 1310, 1316 (S.D. Tex. 1994); see also Templet v. HydroChem Inc., 367 F.3d 473, 478-79 (5th Cir. 2004) (“This Court has held that [a Rule 59 motion] is not the proper vehicle for rehashing evidence, legal theories, or arguments that could have been offered or raised before the entry of judgment.”). However, “Rule 54(b)'s approach to the interlocutory presentation of new arguments as the case evolves can be more flexible [than Rule 59], reflecting the ‘inherent power of the rendering district court to afford such relief from interlocutory judgments as justice requires.'” Austin, 864 F.3d at 337 (quoting Cobell v. Jewell, 802 F.3d 12, 25-26 (D.C. Cir. 2015)).
III. DISCUSSION
A. Plaintiff's Sexual Harassment Claim
Plaintiff's first argument in his motion for reconsideration is that recent Supreme Court and Fifth Circuit precedents no longer require sexual harassment claims to contain evidence of “severe” or “pervasive” harassment in order to be actionable. Mot. 1-6. To support his claims, Plaintiff brings up two recent cases, Hamilton v. Dallas Cnty., 79 F.4th 494 (5th Cir. 2023) and Muldrow v. City of St. Louis, 144 S.Ct. 967 (2024). Mot. 2-6. Although these cases address sex discrimination under Title VII, and Plaintiff's claim is under the TCHRA, it has been established that Title VII cases can be used to interpret the TCHRA. See Summ. J. Order 20 (“The Texas Supreme Court has stated that ‘it is appropriate to seek guidance' from Title VII cases when interpreting [the TCHRA].” (quoting Colbert v. Georgia-Pacific Corp., 995 F.Supp. 697, 701 (N.D. Tex. 1998))). However, both Hamilton and Muldrow are distinguishable from this case. Hamilton specifically addressed Title VII claims of disparate treatment, which require a showing of an adverse employment action. 79 F.4th at 499. Fifth Circuit precedent used to limit adverse employment actions to so-called “ultimate employment decisions,” meaning “hiring, granting leave, discharging, promoting, or compensating.” Id. at 499-500 (citation omitted). In Hamilton, the Fifth Circuit sitting en banc determined that an adverse employment decision need only be any decision that affects a term, condition, or privilege of employment. Id. at 501-02. Even so, this case is not applicable here because Plaintiff did not assert a claim of disparate treatment. Instead, Plaintiff asserted a claim of sexual harassment, alleging a hostile work environment. Such a claim does not have a required element of an adverse employment action. A hostile work environment claim has the following elements:
(1) the plaintiff is a member of a protected class; (2) the plaintiff was subjected to unwanted or unwelcome sexual harassment; (3) the harassment was based on sex; (4) the harassment affected a term, condition, or privilege of employment; and (5) the employer knew or should have known about the harassment and failed to act promptly to address it.Cerda v. Blue Cube Operations, L.L.C., 95 F.4th 996, 1003 (5th Cir. 2024).
The Supreme Court released its opinion in Muldrow after this Court issued its order on Defendant's motion for summary judgment. However, even if Muldrow had been released before, it would not change this Court's opinion because Muldrow was specifically about disparate treatment and job transfers under Title VII. An employee alleging discrimination through being transferred used to have to show “a heightened threshold of harm.” 144 S.Ct. at 973. In Muldrow, the Supreme Court determined that the plaintiff “need show only some injury respecting her employment terms or conditions.” Id. at 977. As Justice Kavanaugh explained in his concurrence, “even when a transfer does not change an employee's compensation, a transfer does change the employee's terms, conditions, or privileges of employment.... Therefore, a transfer made on the basis of the employee's race, color, religion, sex, or national origin violates Title VII.” Id. at 979 (Kavanaugh, J., concurring). Justice Kavanaugh further explained: “[T]he text of Title VII does not require a separate showing of some harm. The discrimination is harm. The only question then is whether the relevant employment action changes the compensation, terms, conditions, or privileges of employment. A transfer does so.” Id. at 980 (emphasis added).
Since Plaintiff was not transferred, the question of whether the alleged employment action affected a term, condition, or privilege of employment still exists. This requires an analysis of whether the alleged incidents of sexual harassment were “adequately severe or pervasive” to alter the terms, conditions, or privileges of employment. Cerda, 95 F.4th at 1004; see also Jones v. Flagship Int'l, 793 F.2d 714, 719-20 (5th Cir. 1986) (“[T]he sexual harassment must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment ....”). The Court analyzed this question using Fifth Circuit cases that addressed the standard for when incidents become pervasive enough to constitute sexual harassment. See Summ. J. Order 24-27. Therefore, the Court declines to reconsider its grant of summary judgment to Defendant on this issue.
See Zuniga v. City of Dallas, Tex., No. 3:23-CV-2308-D, 2024 WL 2734956, at *3 n.3 (N.D. Tex. May 28, 2024) (“Zuniga contends that Muldrow applies to her hostile work environment claim .... The court disagrees. The Supreme Court has defined the requirements of a hostile work environment claim over the course of many years .... There is no suggestion in Muldrow that the Supreme Court intended to alter these requirements.”).
B. Plaintiff's FLSA and Sexual Harassment Retaliation Claims
Plaintiff also asserts that the Court erred in granting Defendant summary judgment on Plaintiff's claims of retaliation under the FLSA and TCHRA. Mot. 11-20. The Court has reviewed Plaintiff's motion and finds that Plaintiff is raising arguments that he has already made in support of these claims. Accordingly, the Court declines to reconsider its grant of summary judgment to Defendant on these claims.
IV. CONCLUSION
For the foregoing reasons, IT IS ORDERED that Plaintiff Jose Preciado's Motion for Reconsideration (ECF No. 52) is DENIED.