Opinion
CIVIL ACTION NO. 2:98CV211-A.
April 16, 2001.
MEMORANDUM OPINION
The court has before it the motion of the plaintiff, Diane J. Richardson, to alter or amend the final judgment entered in the above-captioned case. In her complaint, the plaintiff alleges that the defendant, Desoto County Sheriff's Department, discriminated against her in violation of the Americans With Disabilities Act, the Equal Pay Act, Title VII, 42 U.S.C. § 1981, 1983 and 1985, as well as Mississippi state law. The district court's jurisdiction over these claims rests upon 28 U.S.C. § 1331 and 1367. In accordance with the provisions of 28 U.S.C. § 636(c), both parties have consented to have a United States magistrate judge conduct all proceedings in this case, including an order of entry of final judgment. Therefore, the undersigned has authority to decide this motion to alter or amend the final judgment. The court finds that there is no manifest error of law or fact or newly discovered evidence that would command an alteration or amendment of the final judgment entered in this case.
FACTUAL SUMMARY
The facts are summarized in the order granting summary judgment dated January 3, 2001.
ALTER OR AMEND FINAL JUDGMENT STANDARD
Ms. Richardson's motion is titled as Plaintiff's Memorandum Opposing Defendant's Motion for Summary Judgment. However, the memorandum was sent and received after the deadline for a response to the defendant's motion for summary judgment had passed. This court explained in its order dated January 3, 2000 that such an untimely filing by the plaintiff shall be construed as a motion to alter or amend the final judgment, which was entered in this case on the same day, as the memorandum was received within the ten-day time frame set forth in Rule 59(e).
A motion to alter or amend a final judgment must be filed within ten days of the entry of judgment. Fed.R.Civ.P. 59(e). Amending or altering a final judgment is appropriate if the motion:
clearly establishe[s] either a manifest error of law or fact or must
present newly discovered evidence. These motions cannot be used to raise arguments which could, and should, have been made before the judgment issued. Moreover, they cannot be used to argue a case under a new legal theory.Simon v. United States, 891 F.2d 1154, 1159 (1990). The standards of Rule 59(e) favor denial of a motion to alter or amend a final judgment. Rourke v. Thompson, 11 F.3d 47, 51 (5th Cir. 1993). To oppose a motion for summary judgment, which is a lower standard than that for an alteration or amendment of a final judgment, the nonmoving party must at least "counter with sufficient evidence showing a sufficient issue." Taylor v. Gregg, 36 F.3d 453, 457 (5th Cir. 1994). Furthermore, conclusory assertions "do not provide facts that will counter summary judgment evidence. . . ." Hibernia National Bank v. Carner, 997 F.2d 94, 98 (5th Cir. 1993). The nonmoving party may not argue in a general fashion that there are factual disputes surrounding the legal theory of the case. Pennington v. Vistron Corp., 876 F.2d 414, 426 (5th Cir. 1989).
DISCUSSION
To alter or amend the final judgment in this case, the plaintiff must introduce new evidence or demonstrate a manifest error of law or fact. The plaintiff, in her untimely response to defendant's motion for summary judgment, does neither. The plaintiff instead argues the identical points previously countered by the defendants, with no regard to facts or evidence.
The plaintiff's first contention that there were material factual discrepancies, which must be judged in accordance with the higher standard of establishing a "manifest error. . .of fact" to alter or amend the judgment of this court, involves the work space that she refused to share with a fellow employee:
Defendant alleges that the Plaintiff refused to share a work space in the front office with a white female. Plaintiff alleges that because of inadequate security along with the fact that she was handling inmates' money she felt that it would be unsafe and that this arrangement could create an opportunity for her to be charged with a mistake which could lead to her dismissal; especially in the hostile work environment.
Plaintiff's brief, p. 6. However, neither the plaintiff nor the Sheriff's Department (hereinafter "Department") argue that she did not want to share the office space, and that she may have complained about doing so. Nothing in this first contention establishes a factual discrepancy. Furthermore, Richardson cites to no evidence to support this claim. The action taken by the defendant in requesting that she share an office space is not employment action that is detrimental to her in depriving benefits or prohibiting promotion. Burlington Industries, Inc. v. Elerth, 524 U.S. 742 (1998); Kolstad v. American Dental Assoc., 119 S.Ct. 2118, 2132 (1999). The plaintiff only complains of a perceived "opportunity" that she would be accused sometime in the future of taking money, an assertion for which she has no basis. The plaintiff has failed to successfully claim that there is a manifest error of law or fact on this issue.
Next, plaintiff argues that there was no reason for Chief Brown to move the plaintiff and that the move affected her adversely:
Chief Brown was not forced to move the plaintiff as plaintiff's [sic]
Counsel puts forth in the Memorandum in Support of Defendant's Motion for Summary Judgment. Chief Brown made a decision which had the effect of adversely affecting plaintiff while leaving the White female undisturbed.
Plaintiff's brief, p. 6. However, the plaintiff fails to explain why the move adversely affected her. She also fails to argue why Chief Brown was not forced to move the plaintiff. She offers no evidence to prove her claim and no counter to the defendant's arguments in their motion for summary judgment. Aside from the sweeping statement made above, the plaintiff makes no attempt whatsoever to identify the factual evidence that would shed light on this issue in her favor and incline the court to alter or amend its previously entered judgment.
In her third issue plaintiff argues a material factual dispute exists (which possibly could be construed as a manifest error of fact for the purposes of altering or amending the judgment) regarding her unawareness of job openings in the Department:
The Plaintiff's unawareness of job openings in the front office results from the Defendant's policy of not posting job opportunities which would make the job opportunities openly known to all employees equally.
Plaintiff's brief, p. 6. Again, the plaintiff has failed to support her bald assertion with any evidence that the Department has such an unequal notice policy. She cites to no portions of depositions, affidavits or any other forms of evidence that might lend credibility to her claim. Additionally, she admitted that the job opening was properly posted through her procedural admissions to all of the defendant's requests for admissions. In Wallace v. Best Western Northeast, the Southern District held that where the requests for admissions were procedurally admitted and the party had been dilatory throughout the proceedings, summary judgment was proper based in part on the admissions. Wallace, 183 F.R.D. 199, 203 (S.D.Miss. 1998). In addition, the Fifth Circuit has found that when requests for admissions are procedurally admitted, there remains no genuine issue of fact and summary judgment is proper. Dukes v. South Carolina Ins. Co., 770 F.2d 545, 549 (5th Cir. 1985). This court finds that she has failed to establish that there was a material error of fact that would indicate that an alteration or amendment of the final judgment is warranted.
The plaintiff asserts in her fourth argument that factual dispute exists regarding whether she was adversely affected in her job status because of her injured hand:
The Defendant admits in the affidavit of Commander Jim Dunn that the Plaintiff's hand was a consideration in her placement. This was "the" consideration and was material to the decision of where to place the Plaintiff. Although the "disability" was perceived and not real, the Defendant used the "condition" to render an adverse job decision.
Plaintiff's brief, p. 7. The plaintiff, though she does refer to an affidavit, gives no specific cites to the affidavit and does not attach it as an appendix to the memorandum. She also refers to an "adverse job decision," although she does not explain why she considers it adverse. The evidence shows, and Ms. Richardson admits that her pay was not decreased when she was moved to a different position that would allow for less use of her injured hand. The plaintiff admits that she was moved to the other position only after she turned down the other front office job where she would share an office with another employee. Without a showing of some actual detrimental treatment, such as a pay cut or decrease in benefits, the plaintiff has failed to demonstrate that there was in fact an "adverse" job decision made by the Department.
Finally, Ms. Richardson argues that in light of her responses to the defendant's interrogatories and her deposition, her procedurally admitted requests should be disregarded:
The defendant makes note of the "procedurally admitted requests;" However, in this case, unlike any precedent that this writer can find, the responses to the interrogatories conflict with the "procedurally admitted requests." Further, the testimony of the Plaintiff at her deposition which is part of this record conflict with the "procedurally admitted requests." This situation certainly makes the "procedurally admitted requests" unreliable on which to base a decision on a motion for summary judgment.
Plaintiff's brief, p. 7. However, the plaintiff failed once again to point to the specific interrogatories or portions of the plaintiff's deposition that should persuade this court of such a circumstance. She only attached her original complaint as an appendix to this memorandum, which is of no aid to this court's decision, as "mere allegations" and conclusory statements are insufficient as evidence of factual disputes. Taylor v. Gregg, 36 F.3d 453, 457 (5th Cir. 1994). As discussed above, procedurally admitted requests are sufficient upon which to base a final judgment, regardless of how the responses may conflict with other discovery. See Dukes v. South Carolina Ins. Co., 770 F.2d 545, 549 (5th Cir. 1985).
The plaintiff does not address any of the defendant's arguments in its motion for summary judgment and instead she makes only conclusory arguments and bald assertions. This rhetoric cannot support the high burden set forth by the Fifth Circuit which would allow this court to alter or amend the final judgment issued in this case. Because the plaintiff has failed to meet this standard and has failed to present any tangible evidence that the judgement in this case should be altered or amended pursuant to Fed.R.Civ.P. 59(e), this court finds that the judgment issued by this court on January 3, 2000, shall stand.