Opinion
Civil Action No. 3:99-CV-2153-D
November 20, 2001
MEMORANDUM OPINION AND ORDER
Plaintiff Jimmy Johnson ("Johnson") moves the court under Fed.R.Civ.P. 60(b)(3) to vacate the adverse summary judgment filed on April 3, 2001 in his suit against defendant City of Dallas, Texas ("City"). See Johnson v. City of Dallas, Tex., 2001 WL 332021 (N.D. Tex. Apr. 3, 2001) (Fitzwater, J.) ("Johnson I"). Concluding that Johnson has failed to show by clear and convincing evidence that any misconduct prevented him from fully and fairly presenting the sole disability discrimination claim that is the subject of the relief he seeks, the court denies the motion.
I
Johnson sued the City alleging that it was liable for violating the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 794, by failing and refusing to employ him in a position in the Fire Dispatch Division of the City Fire Department ("DFD"). Johnson I, 2001 WL 332021, at *1. Johnson had been employed as a Driver with DFD. After an off-duty automobile accident left him permanently confined to a wheelchair, he sought reassignment. Id. As Johnson was completing his rehabilitation, DFD offered him a position in recruiting, which was compatible with his physical restrictions. Id. at * 1. Johnson instead requested a position in the Fire Dispatch Division.
Johnson also asserted that the City violated the Rehabilitation Act by failing reasonably to accommodate him and failing to offer him any other position for which he was qualified. The court granted summary judgment dismissing these components of his Rehabilitation Act claim, see Johnson I, 2001 WL 332021, at *3. Johnson also alleged that the City was liable for common law fraud under Texas law. The court granted summary judgment in favor of the City based on sovereign immunity. See id at *3-*4. Johnson's motion to vacate does not relate to these aspects of the court's ruling and the court therefore need not discuss them.
Johnson initially was unable to type fast enough to meet the prerequisite for the dispatch training program, so DFD placed him in a limited duty position until he improved his typing skills. The dispatch training program involved two stages. Trainees first learned to receive and process emergency calls. After they mastered telephone procedures, they then learned radio procedures. Johnson was evaluated weekly during the telephone training. His second evaluation rated him "unacceptable" or "below average" in nine of twelve areas. The third and fourth evaluations rated him as "unacceptable" or "below average" in eight areas of twelve areas. As a result of this unsatisfactory performance on the telephone, he never moved to the radio training and was unable to assume a position as a dispatch officer. Id.
A review of DFD's divisions indicated that Johnson was not qualified for any of the available positions. The recruiting position that DFD offered him before he opted for dispatcher training was no longer available. The only open position in that office was for a Captain, a rank that was several steps above Johnson's rank as a Driver. He therefore retired from DFD and began receiving a disability pension. Id.
Concerning the dispatcher-based disability claim, which is the sole basis for Johnson's Rule 60(b)(3) motion, the court held that Johnson had not produced any evidence that he was treated adversely because of his disability. Johnson I, 2001 WL 332021, at *2. Johnson asserted that summary judgment was improper because DFD used subjective standards in determining that he had failed the training program. Although he submitted the admission of Bob Bradley ("Bradley"), the dispatch training officer, that Johnson had room for improvement at the end of the four weeks, he did not provide any evidence, beyond an assertion that subjective standards existed, that the City had taken any action as a result of his disability or that he was treated differently from non-disabled persons. Id. The court held that, without evidence that these subjective standards were used to effect discriminatory prejudice, there was no evidence of discrimination because "a system based on subjective criteria is not `discriminatory per se.'" Id. (quoting Anderson v. Douglas Lomason Co., 26 F.3d 1277, 1292 (5th Cir. 1994)). The court also concluded that Johnson had not submitted any evidence that, on the basis of subjective criteria, disabled persons were more likely to fail DFD training programs in general or this program in particular. Id. He pointed to no specific criterion that he alleged discriminated against him as a disabled person. And he admitted that he participated in the same training course, and received the same evaluations, as did another person, who is not disabled. Id The court also relied on the fact that the City had adduced evidence that other individuals with disabilities had passed the training course, which at least suggested that the reason for Johnson's failure was not his disability. Id Because Johnson did not provide any evidence to the contrary, the court held that he had failed to establish a prima facie case of discrimination under the Rehabilitation Act. Id
II A
"A party making a Rule 60(b)(3) motion must establish by clear and convincing evidence (1) that the adverse party engaged in fraud or other misconduct and (2) that this misconduct prevented the moving party from fully and fairly presenting his case." Gov't Fin. Servs. One Ltd. Partnership v. Peyton Place, Inc., 62 F.3d 767, 772 (5th Cir. 1995) (internal quotation marks omitted) (quoting Washington v. Patlis, 916 F.2d 1036, 1039 (5th Cir. 1990), and Montgomery v. Hall, 592 F.2d 278, 278-79 (5th Cir. 1979)). "The purpose of the rule is to afford parties relief from judgments which are unfairly obtained, not those which may be factually incorrect." Id (quoting Diaz v. Methodist Hosp., 46 F.3d 492, 496 (5th Cir. 1995)).B
Johnson moves for Rule 60(b)(3) relief as to his dispatcher-based disability claim. He contends the City's attorney of record knew of, and intentionally withheld, evidence that was
See P. Mot. at 2 ("this Court should vacate the order and judgment and place this civil action back on the trial docket insofar as Plaintiff's dispatcher-related claim under the Rehabilitation Act is concerned[.]").
inconsistent with the evidence submitted in connection with Defendant's motion for summary judgment and establishing triable issues of fact precluding summary judgment on Plaintiff's disability discrimination claim but sought to obtain an affidavit from Mr. Spigner inconsistent with the facts provided by Mr. Spigner and submitted in evidence in support of the motion for summary judgment also inconsistent with those facts.
P. Mot. at 2. According to the affidavit of Joe M. Spigner ("Spigner") that Johnson has proffered in support of his motion, Bradley, the dispatch training officer, asked Spigner to train Johnson in certain duties and to evaluate his performance. Spigner Aff. at ¶ 3. Spigner did train Johnson, evaluated him favorably on more than one day of work, and advised Bradley of this fact. Id. Bradley did not state or suggest to Spigner that he was the only trainer who had rated Johnson's performance favorably. Id. During the same period, other dispatchers commented that Johnson had suffered an incident of urinary and fecal incontinence while in the dispatch room. Id.
According to Spigner, on July 10, 2000 he met with Jason McClain, Esquire ("McClain"), the City's attorney of record, at McClain's request. The purpose of the meeting was for Spigner to provide his recollection of the facts pertaining to Johnson's training for the dispatcher position, which Spigner did. Id. at ¶ 4. Spigner informed McClain of his generally favorable evaluation of Johnson during the training and advised him of the comments about his incontinence. Spigner also told McClain that he believed Johnson had not been allowed to take the dispatcher position because of his disability and not because of any aspect of his performance. Id. Spigner avers that on November 29, 2000, McClain presented him an affidavit that he refused to sign because it was inconsistent with what he told him in July. According to Spigner, McClain responded by becoming extremely angry, balled up the affidavit, threw it in a wastebasket, and then retrieved it. McClain never talked with Spigner again about Johnson's claims or his lawsuit. Id.
C
Even if the court assumes arguendo that the City engaged in misconduct, Johnson has failed to show by clear and convincing evidence that such misconduct prevented him from fully and fairly presenting his disability discrimination claim.Johnson testified by deposition in this case on June 5, 2000. During his testimony, he specifically identified Spigner as a dispatcher who sat with him and seemed to think he was doing a good job or doing fine. D. App. 17. He also named Spigner as an individual who would agree with him that his call taking was satisfactory enough that he could be an alarm dispatcher. Id. at 20. Johnson also included Spigner in a list of persons who had relevant knowledge. Id. at 47. Therefore, approximately six months before the City moved for summary judgment on December 1, 2000, Johnson already knew that Spigner potentially had information favorable to his disability discrimination claim. Because he could have interviewed him himself and obtained an affidavit from Spigner concerning his evaluation of Johnson's performance and comments made in the workplace, he is not entitled to Rule 60(b)(3) relief. He cannot show by clear and convincing evidence that the City's misconduct prevented him from fully and fairly presenting his claim. See Diaz, 46 F.3d at 497 (holding that plaintiff in malpractice action was not entitled to relief under Rule 60(b)(3) where she had "independent access" to the information at issue, "the information was not under the exclusive control of the [defendants]", and it was "likely that a more focused effort by [the plaintiff] could have uncovered this evidence prior to trial.").
When the City moved for summary judgment, it included Johnson's entire deposition in its supporting appendix.
Johnson I contains a typographical error that states that the City moved for summary judgment on December 1, 2001. See Johnson, 2001 WL 332021, at *4.
Johnson contends in his reply brief that he "could hardly use his mere belief that Mr. Spigner might support his contention that he was subjected to discrimination as evidence in connection with his response to the summary judgment motion, because such a belief alone would have been precluded as inadmissible summary judgment evidence on the ground of hearsay." P. Rep. Br. at 3-4. He also argues that the conduct and lack of diligence of his attorney in identifying and interviewing Spigner, however harmful, is inapposite in the context of a Rule 60(b)(3) motion because the conduct of the party who seeks relief is not the proper heart of the inquiry. Johnson maintains that the focus must instead be on the City's concealment of favorable evidence. Id at 4. What is controlling, however, is the fact that Johnson had independent knowledge of, and access to, Spigner as a source of evidence, believed he had favorable testimony, and could have obtained an affidavit that set out the matters concerning his assessment of Johnson's performance during training and the comments about his workplace incontinence. These circumstances are fatal to his motion for the reasons explained above. See Diaz, 46 F.3d at 497.
* * *
Johnson's September 24, 2001 motion to vacate judgment is denied.