Opinion
No. 99-4184-DES.
November 28, 2001.
MEMORANDUM AND ORDER
This matter is before the court on defendant's Motion to Reconsider and/or Alter or Amend Judgment (Doc. 76). Plaintiff has filed a Response (Doc. 79), and defendant has filed a Reply (Doc. 80). Defendant seeks reconsideration of the court's Memorandum and Order (Doc. 75) dated May 24, 2001. Nelson v. Kansas, No. 99-4184, 2001 WL 584436 (D. Kan. May 24, 2001). For the following reasons, defendant's motion is denied.
I. BACKGROUND
In this Title VII employment discrimination case, plaintiff brought claims of sexual harassment, disparate treatment, discriminatory discharge, and retaliatory discharge. Defendant sought summary judgment on all claims. In its previous order, the court granted summary judgment on all claims except plaintiff's claim of retaliatory discharge. Id. at *12.
The factual history of this case, as previously found by the court, is as follows:
On August 15, 1996, plaintiff began her employment with the Kansas Department of Corrections ("KDOC") as a part-time secretary in the Lawrence Parole Office. Plaintiff worked with two other females, Parole Officer I, Jeannie Wark ("Wark"), and Parole Officer II, Navonne Easter ("Easter"). Plaintiff's first two years at KDOC passed without incident. On November 19, 1996, Easter conducted a ninety-day evaluation of plaintiff's work performance. Easter rated plaintiff's performance as satisfactory, suggesting plaintiff could improve disseminating office paperwork and utilizing the computer. In February 1997, plaintiff received her first annual evaluation. Easter rated plaintiff's overall performance as satisfactory and suggested plaintiff could improve her computer skills. In February 1998, plaintiff received her second annual evaluation. Easter rated plaintiff's overall performance as satisfactory and commented that her computer skills had improved and she had grown more comfortable making decisions.
In late October 1998, plaintiff endured an incident which forms the basis for her sexual harassment claim. Plaintiff's desk was located in the reception area of the parole office, where offenders wait to speak with a parole officer. On the day in question, Wark came out of her office laughing loudly. She asked Easter to come and hear a sex offender's answering machine message in which he appeared to offer oral sex. Wark requested that plaintiff play the message. When plaintiff refused, Wark proceeded to play the message on plaintiff's speaker phone so those present in the reception area could listen, including the sex offender. Wark and Easter laughed at the message. Wark then proceeded to discuss the content of the message and the fact it was inappropriate with the offender in plaintiff's presence. On December 3, 1998, plaintiff mailed an incident report describing the situation to Parole Office Supervisor Robert Hainline ("Hainline"). Plaintiff stated "[t]his incident is disappointing to me though not a total shock due to other comments made in the past that I considered unprofessional. I am in the office a great deal of the time alone when offenders come in for various reasons. Since this incident, I am not comfortable with [this sex offender]." (Def. Ex. 27.) Hainline verbally reprimanded Wark and directed her to write a letter of apology. On January 4, 1999, plaintiff received a formal letter of apology from Wark.
After the incident report and subsequent apology, plaintiff claims she was subjected to retaliation. In February 1999, plaintiff received her third annual evaluation, in which Easter stated plaintiff had difficulty demonstrating trust and mutual respect in a cooperative work environment and had difficulty with teamwork. At the evaluation, Easter raised the issue of plaintiff's incident report. Plaintiff became upset and told Easter to stick the evaluation "up her ass." Plaintiff claims the evaluation was retaliatory and she describes other incidents of retaliation, which are discussed below.
On April 29, 1999, plaintiff received a letter from Parole Director John Lamb ("Lamb"), notifying plaintiff that she would be officially terminated on May 6, 1999. The stated basis for plaintiff's termination are two incidents, which occurred on April 28, 1999, and April 27, 1999. On April 16, 1999, Wark requested that plaintiff return two plants that Wark had asked plaintiff to take home to revive over two years earlier. According to plaintiff, Easter joined the conversation and both women began yelling and screaming at plaintiff, demanding that she return the flower pots or pay forty dollars. Plaintiff described the situation as physically intimidating. As a result of this incident, plaintiff refused to attend an office meeting between the three women on April 28, 1999, without a neutral third party present. However, neither Wark nor Easter informed supervisor Hainline that plaintiff requested to have a neutral party present. On April 27, 1999, plaintiff's assignment was to complete VOITUS forms. Plaintiff claims she completed the forms on four separate occasions, but Easter returned the forms claiming there were minor deficiencies. A few minutes before plaintiff's shift expired, Easter told plaintiff she had to work overtime to complete the forms. Because Easter had recently told plaintiff she could only work from 10:00 a.m. to 2:00 p.m. with no exceptions and plaintiff had a second part-time job starting after her job at the parole office, plaintiff refused to stay late to complete the forms. Plaintiff claims both these incidents are retaliatory.Id. at *1-*2
II. DEFENDANT'S PROFFERED GROUNDS
Defendant seeks reconsideration solely of the court's decision regarding the viability of plaintiff's retaliation claim. To this end, defendant submits the court erred with respect to the following determinations:
(1) by determining that a vague charge of gender-neutral unprofessional conduct on the part of co-workers based on an internal letter or grievance is sufficient to constitute an express complaint of opposition to an unlawful employment practice under Title VII;
(2) by concluding that hostility or harassment by reasons of the actions of individuals which plaintiff has failed to show or establish by a preponderance of the evidence are "persons in supervisory positions and who had significant control over the plaintiff's hiring, firing, or conditions of employment, or was by management level employees who have ultimate authority to hire, fire and to control the conditions of employment" can be considered the intentional conduct of the employer;
(3) by finding retaliatory pretext by defendant without addressing the relevant inquiry, as well as plaintiff's failure to produce any evidence about, whether the decision maker believed the information presented to him and acted in good faith upon that belief in terminating plaintiff's employment of the good of the state civil service.
(Def. Mem. in Supp. of Mot. to Recons. at 2).
III. STANDARD OF REVIEW
As noted above, defendant has titled its filing as a "motion to reconsider." Although a common motion before the court, the Federal Rules of Civil Procedure do not explicitly recognize such a motion. This lack of specific authorization and direction have led, as in this case, to general confusion regarding such motions' legal foundation. Generally, federal courts interpret requests for reconsideration as being brought pursuant to either Rule 59(e) or Rule 60 of the Federal Rules of Civil Procedure. See Hawkins v. Evans, 64 F.3d 543, 546 (10th Cir. 1995). The determinative factor in which rule to apply is whether the movant has complied with the ten-day limitation period embodied in Rule 59(e). See Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (noting motions to reconsider filed within ten days of entry of judgment should be considered under Rule 59(e)).
The rule states: "Any motion to alter or amend a judgment shall be filed no later than 10 days after entry of judgment." Fed.R.Civ.P. 59(e).
In the present case, defendant submits the court's authority to reconsider its order flows from Rule 59(e). The court disagrees. In particular, reconsideration under Rule 59(e) is limited to review of final judgments. See Wagoner v. Wagoner, 938 F.2d 1120, 1122 n. 1 (10th Cir. 1991); Anderson v. Deere Co., 852 F.2d 1244, 1246 (10th Cir. 1988). See also Fed.R.Civ.P. 54(a) (defining "judgment" as "a decree and any order from which an appeal lies"). The court's previous order did not completely answer the issue of defendant's liability, for the retaliatory discharge claim survives for disposition at trial. For this reason, the court's order may not be considered final for purposes of reconsideration. See generally Coopers Lybrand v. Livesay, 437 U.S. 463, 467 (1978) (opining a final order ends litigation on merits and leaves nothing for the court to do but execute the judgment). Therefore, as an interlocutory order, reconsideration under Rule 59(e) is precluded.
Grounds warranting a motion to reconsider under Rule 59(e) include: (1) an intervening change in the law; (2) new evidence previously unavailable; and (3) the need to correct clear error or prevent manifest injustice. Brumark Corp. v. Samson Res. Corp., 57 F.3d 941, 948 (10th Cir. 1995)
On the other hand, it is well within the court's discretion to revise interlocutory orders prior to the entry of final judgment. The Federal Rules of Civil Procedure provide:
In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
Fed.R.Civ.P. 54(b). See also Anderson, 852 F.2d at 1246 (acknowledging district court's discretionary power to revise interlocutory orders).
Within the present context, the distinction between reconsideration under Rule 59(e) and the court's general power to revise interlocutory orders is somewhat academic, for courts routinely turn to the standards established under Rule 59(e) for instruction in constructing a review standard when considering a possible revision of an interlocutory order. See, e.g., Renfro v. City of Emporia, Kansas, 732 F. Supp. 1116, 1117 (D. Kan. 1990). Therefore, in general, "[a] motion to reconsider should be denied unless it clearly demonstrates manifest error of law or fact or presents newly discovered evidence." National Business Brokers, Ltd. v. Jim Williamson Prods., Inc., 115 F. Supp.2d 1250, 1256 (D. Cob. 2000) (internal citation and quotation marks omitted). See also Dees v. Wilson, 796 F. Supp. 474, 475 (D. Kan. 1992) ("A motion to reconsider is appropriate if the court has obviously misapprehended a party's position, the facts, or mistakenly has decided issues not presented for determination."). In addition, arguments raised for the first time in a motion for reconsideration are not properly before the court and generally need not be addressed. United States v. Castillo-Garcia, 117 F.3d 1179, 1197 (10th Cir. 1997). See also Resolution Trust Corp. v. Greif, 906 F. Supp. 1446, 1456-57 (D. Kan. 1995) (noting a motion to reconsider is not a mechanism to raise arguments that should have been raised in the first instance or to rehash arguments previously considered and rejected by the court).
IV. DISCUSSION
A. Protected Opposition
Defendant argues the court erred in determining the letter sent to Supervisor Hainline, describing alleged sexual harassment, was protected conduct. Defendant is merely attempting to rehash arguments previously considered and rejected by the court. Defendant argues the incident report is not an "express complaint" of sexual harassment. As the court previously stated:
[T]he incident report details the circumstances of a sexual joke/conversation and makes it clear that plaintiff was offended by the incident. The report is not merely a vague reference to unspecified discrimination, which courts have determined does not constitute protected activity. Id. The fact that plaintiff used the word "unprofessional" and "disappointing" rather than "discrimination" or "sexual harassment" does not alter the fact that the incident report sufficiently conveyed plaintiff's reasonable concern that defendant engaged in sexual harassment. The court finds plaintiff engaged in protected opposing activity, therefore, the first element of the prima facie case is satisfied.Nelson, 2001 WL 584436 at *7. After considering defendants renewed arguments, the court finds no reason to revise its decision. Further, the court finds that its citation to Garcia-Paz v. Swift Textiles, Inc., 873 F. Supp. 547, 559-60 (D. Kan. 1995), was appropriate.
B. Vicarious Liability
Defendant next argues the court erred in failing to follow standards for imputing Title VII vicarious liability to an employer. In particular, defendant asserts "plaintiff offers no evidence whatsoever that would show her co-worker parole officers were management-level employees or an employee in a supervisory position over plaintiff who exercised significant control over plaintiff's hiring, firing or conditions of employment." (Def. Mem in Supp. of Mot. to Recons. at 11). Defendant did not raise this argument in its motion for summary judgment.
Even if defendant had properly raised this issue, the court would not have reason to alter its decision. The facts of this case demonstrate Officers Easter and Wark had sufficient supervisory capacity over plaintiff. This position is clearly asserted by defendant in its original motion for summary judgment:
[P]laintiff's termination came as a result of numerous warnings regarding work-related problems and work performance issues with her direct supervisor, Parole Officer II, Navonne Easter, who was loathe to recommend discharge because neither she nor Parole Officer I, Jeannie Wark wanted to lose plaintiff's position. As a consequence of plaintiff's own continued misconduct and behavior, they were left with no choice.
(Def. Mem. in Supp. of Mot. for Summ. J. at 25-26) (emphasis added). Defendant's filing unequivocally asserts Officer Easter was plaintiff's supervisor and that Officers Easter and Wark played a direct role in having plaintiff discharged. Defendant's present position is highly unpersuasive in light of its earlier submission. Therefore, the court finds no cause for revising its order.
C. Pretext
Defendant's last argument asserts the court erred in finding plaintiff sufficiently demonstrated defendant's proffered justification for discharging her was pretextual. In particular, defendant now argues Director Lamb had no knowledge of plaintiff's protected activity, so he could not have been acting with any intentional retaliatory motive. In essence, defendant is attempting to construct a wall between the ultimate decision made by Director Lamb and the "shenanigans" of Officers Easter and Wark. (Def. Mem. in Supp. of Mot. to Recons. at 14). This argument was not presented in defendant's original motion for summary judgment.
Once again, however, even if defendant had properly raised this argument, the court finds no justification for revising its order. As the court stated in its order, pretext may be shown by demonstrating a defendant-employer's proffered justifications for taking the adverse action are unworthy of belief. In this case, plaintiff highlighted sufficient irregularities within defendant's "good cause" justification. Admittedly, these discrepancies center on plaintiff's interaction with Officers Easter and Wark. Defendant now argues the court should have solely focused on the beliefs motivating Director Lamb. As was the case with defendant's second argument, however, defendant's own filing casts significant doubt on the viability of such a position. Defendant previously asserted Officers Easter and Wark recommended plaintiff be discharged. The court was not in error, therefore, in considering the pretextual nature of the justifications focused on the quality of the working relationship between plaintiff and Officers Easter and Wark.
V. CONCLUSION
In denying the instant motion, the court finds defendant's arguments both procedurally and substantively inadequate. Under the review standard identified by the court, defendant has failed to persuade the court to revise its previous order. The motion shall be denied.
IT IS THEREFORE BY THIS COURT ORDERED that defendant's Motion to Reconsider and/or Alter or Amend Judgment (Doc. 76) is denied.