Opinion
CIVIL ACTION No. 00-2394-KHV
February 20, 2003
MEMORANDUM AND ORDER
Warren K. Pyles brings employment discrimination and retaliation claims against The Boeing Company ("Boeing") under Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e et seq., the Kansas Acts Against Discrimination, K.S.A. § 44-1001 et seq., and the Civil Rights Acts of 1866 and 1871, 42 U.S.C. § 1981 and 1983. On December 19, 2002, the Court entered summary judgment in favor of Boeing on all of plaintiff's claims except those under (1) Title VII and Section 1981, for failure to promote plaintiff to the facilities supervisor position; (2) Title VII and Section 1981, for failure to promote plaintiff to millwright B and grant him a corresponding pay raise; and (3) Section 1981, for denial of overtime from July 26 to October 7, 1998. See Memorandum And Order (Doc. #224). This matter comes before the Court on plaintiff's Motion To Recuse District Judge (Doc. #244); plaintiff's Motion To Alter Or Amend Judgment (Doc. #246); and plaintiff's Motion To Stay Proceedings Or Continue Trial (Doc. #241), all filed January 10, 2003. For reasons stated below, the Court overrules all of plaintiff's motions.
The Court previously granted partial summary judgment in favor of defendant on plaintiff's KAAD claims (Count 4) and his first discrimination charge under Title VII (parts of Counts 2 and 3). See Memorandum And Order (Doc. #85) filed February 22, 2002. In addition, the Court limited to acts which occurred from August 8, 1997 to October 7, 1998 plaintiff's Title VII claims on his second discrimination charge (parts of Counts 2 and 3). See id. The Court also limited to acts which occurred from October 22, 1997 to October 7, 1998 plaintiff's Section 1981 claims (Count 1). See id.
On January 4, 2003, plaintiff personally filed motions seeking the same relief, which he purported to sign on behalf of his attorney. See Motion To Recuse District Judge (Doc. #230); Motion To Alter Or Amend Judgment (Doc. #232); and Motion To Stay Proceedings Or Continue Trial (Doc. #234). The Court ordered the Clerk to strike the motions unless plaintiff's attorney signed the original motions in the Clerk's file by January 17, 2003. See Order (Doc. #237) filed January 13, 2003. Plaintiff's attorney did not do so. Instead, he filed the instant motions, bearing his signature. The instant motions appear to be identical to the original motions which plaintiff filed on January 4, 2003.
I. Motion To Recuse District Judge
Plaintiff asks the undersigned judge to recuse herself because (1) "her only intent has been to get rid of the case as quickly as possible without regard for the merits or any sense of fairness to plaintiff;" (2) she has given "short-shrift and uneven treatment [to] plaintiff's earlier motions and requests;" (3) "her attitude and behavior toward plaintiff . . . has been clearly hostile and antagonistic;" and (4) "Boeing was allowed to push its agenda through at the pretrial conference and through summary judgment." Memorandum In Support Of Motion To Recuse District Judge (Doc. #245) filed January 10, 2003 at 2-4. Plaintiff also asserts that the undersigned judge has demonstrated a history of bias in favor of corporate defendants. See id. (incorporating facts from motion to alter or amend judgment); Memorandum In Support Of Motion To Alter Or Amend Judgment (Doc. #247) filed January 10, 2003 at 8.
In its order of January 13, 2003, the Court noted that Cortland E. Berry, plaintiff's former lawyer who is now disbarred, may be engaged in the practice of law without a license in the offices of plaintiff's current attorney, Glen Anderson, II. See Memorandum And Order (Doc. #237) at 2 n. 1. The Court sent a copy of its order to the Disciplinary Administrator of the State of Kansas. See id. That fact, however, does not require recusal. See Advisory Opinion No. 66, Committee On Codes Of [Judicial] Conduct (revised July 31, 1998).
The Court exercises discretion in deciding whether to reuse. See Weatherhead v. Globe Int'l, Inc., 832 F.2d 1226, 1227 (10th Cir. 1987). Title 28 U.S.C. § 455(a) requires a judge to disqualify herself "in any proceeding in which [her] impartiality might reasonably be questioned." Under the statute, "a judge has a continuing duty to recuse before, during, or, in some circumstances, after a proceeding, if the judge concludes that sufficient factual grounds exist to cause an objective observer reasonably to question the judge's impartiality." United States v. Cooley, 1 F.3d 985, 992 (10th Cir. 1993) (citations omitted). The judge's subjective state of mind is irrelevant. See id. at 993. The test is objective: "whether a reasonable person, knowing all the relevant facts, would harbor doubts about the judge's impartiality." Id. (further quotations omitted). A judge should not recuse herself on unsupported, irrational, or highly tenuous speculation. See Hinman, 831 F.2d at 939.
Although plaintiff's motion refers to 28 U.S.C. § 144 and 455(a), his supporting memorandum only discusses the standards for recusal under Section 455(a). In response to plaintiff's motion, defendant initially pointed out that plaintiff had not filed an affidavit in support of recusal under Section 144. See Defendant's Response To Plaintiff's Motion To Recuse District Judge (Doc. #260) filed January 21, 2003. Two days later, plaintiff filed an affidavit filled with various conclusions, rumors and innuendo regarding alleged bias by the undersigned judge. The Court must accept as true the facts alleged in the affidavit, but it strictly construes the affidavit against plaintiff. See Weatherhead, 832 F.2d at 1227. Plaintiff's affidavit is not based on first-hand knowledge and does not "state with required particularity the identifying facts of time, place, persons, occasion, and circumstances." Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir. 1987). The affidavit is therefore insufficient to support recusal under Section 144. See Glass v. Pfeffer, 849 F.2d 1261, 1267-68 (10th Cir. 1988).
In this case, plaintiff has not shown a proper basis for recusal. He essentially argues that adverse rulings demonstrate bias. Adverse rulings, however, are not a sufficient basis for recusal. See Cooley, 1 F.3d at 994. The rest of plaintiff's assertions amount to "[r]umor and speculation, beliefs, conclusions, innuendo, suspicion, opinion and similar non-factual matters." Id. at 993. Plaintiff alleges no facts which demonstrate that a reasonable person would question the impartiality of the undersigned judge. Recusal under Section 455(a) is therefore inappropriate.
II. Motion To Alter Or Amend Judgment
Plaintiff asks the Court to alter or amend its summary judgment ruling because of alleged bias by the undersigned judge. A motion to alter or amend judgment under Rule 59(e), Fed.R.Civ.P., is essentially a motion for reconsideration. See Schweitzer-Reschke v. Avnet, Inc., 881 F. Supp. 530, 532 (D.Kan. 1995). The Court has discretion whether to grant or deny a motion to reconsider. See Hancock v. City of Okla. City, 857 F.2d 1394, 1395 (10th Cir. 1988). The Court may recognize any one of three grounds justifying reconsideration: an intervening change in controlling law, availability of new evidence, or the need to correct clear error or prevent manifest injustice. See Major v. Benton, 647 F.2d 110, 112 (10th Cir. 1981); Burnett v. W. Res., Inc., 929 F. Supp. 1349, 1360 (D.Kan. 1996). A motion to reconsider is not a second opportunity for the losing party to make its strongest case, to rehash arguments, or to dress up arguments that previously failed. See Voelkel v. Gen. Motors Corp., 846 F. Supp. 1482, 1483 (D.Kan. 1994). Such motions are not appropriate if the movant only wants the Court to revisit issues already addressed or to hear new arguments or supporting facts that could have been presented originally. See Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991).
Plaintiff argues that the Court wrongfully required him to support his factual assertions with record citations and that the Court required him — instead of Boeing — to show that it treated similarly situated white employees more favorably than plaintiff. See Memorandum In Support Of Motion To Alter Or Amend Judgment (Doc. #247) filed January 10, 2003 at 2-3. Plaintiff cites no legal authority which suggests that the Court applied the wrong standard. Plaintiff asserts that the Court made factual errors regarding (1) the race of Floyd "Al" Hubbard; and (2) whether the record reflected when plaintiff filed his back pay grievance. Neither fact was material, however, to the Court's decision. The essence of plaintiff's motion is that the Court should reconsider its ruling because of bias. As discussed supra, plaintiff has not shown a proper basis for recusal. For the reasons discussed above, plaintiff's arguments do not warrant reconsideration.
The summary judgment record was silent with respect to Hubbard's race. Plaintiff asserts that although the parties understand that Hubbard is white, the Court referred to him as African-American. See Memorandum In Support Of Motion To Alter Or Amend Judgment (Doc. #247) filed January 10, 2003 at 4. Hubbard's race, however, was not material to the Court's ruling. See Memorandum And Order (Doc. #224) at 20.
Plaintiff alleges that against his wishes, the Court conducted the status conference on December 20, 2002, off the record. See Memorandum In Support Of Motion To Alter Or Amend Judgment (Doc. #247) filed January 10, 2003 at 5. A court reporter was present throughout the entire conference, however, and plaintiff's counsel did not object to being off the record or ask to go on the record.
III. Motion To Stay Proceedings
Plaintiff contends that the Court should stay proceedings in this case because in Staton v. Boeing Co., 313 F.3d 447 (9th Cir. 2002) — a class action suit in which plaintiff opted out of the plaintiff class — the Ninth Circuit Court of Appeals reversed the district court order which approved a class settlement. Plaintiff argues that the district judge in the class action suit "chose to ignore any consideration as to whether variations in individual class members' monetary claims could lead to divergences of interest that make any unitary representation of a class problematic in the damages phase." Amended Memorandum In Support Of Motion To Stay Proceedings Or Continue Trial (Doc. #243) filed January 10, 2003 at 2. The Ninth Circuit opinion in Staton, however, did not address any problems regarding unity of interest in the damage phase. The Ninth Circuit affirmed class certification but found that the district court should not have approved the settlement because of (1) considerations relating to the award of attorneys fees; and (2) a large differential in the amounts paid to named and unnamed class members. See Staton, 313 F.3d at 465-87.Plaintiff's argument regarding the class action suit is nonsensical. He argues that this Court's summary judgment ruling "should be considered null and void, since it was rendered in the absence of jurisdiction derived from [the class action district judge's] order and decree which was set aside on November 26, 2002 by the Ninth Circuit." Amended Memorandum (Doc. #243) at 3. Plaintiff states that "jurisdiction to pursue his individual action came from the rulings in the Seattle class action and when these rulings were overturned this Court lost jurisdiction." Id. Plaintiff also argues that the summary judgment ruling is void because he had filed a valid notice of dismissal. See id. As with plaintiff's purported motion to stay dated December 11, 2002, the Court has no record that plaintiff ever filed a notice of dismissal.
Plaintiff cites no authority for the relief which he seeks. The Court therefore overrules the motion to stay for substantially the same reasons as those stated in Defendant's Response to Plaintiff's Motion To Stay Proceedings Or Continue Trial (Doc. #258) filed January 21, 2003.
Plaintiff also asks the Court to continue the trial date. See id. at 5. On January 17, 2003, Magistrate Judge Karen Humphreys canceled the trial date and scheduled a status conference for February 27, 2003 to reset the trial date and address other pretrial matters. See Order (Doc. #248). Plaintiff's motion for a continuance is therefore moot.
The Court also admonishes plaintiff's counsel that he does not advance plaintiff's interest by playing fast and loose with the facts or making factual representations which are demonstrably false. See Rule 11, Fed.R.Civ.P. Because Boeing has not sought Rule 11 sanctions, however, and because plaintiff's counsel is currently the subject of a professional investigation by the Kansas State Disciplinary Administrator, the Court does not address the sanctions issue at this time. It does direct the Clerk to send a copy of this order to the Disciplinary Administrator, Stanton A. Hazlett, 701 Jackson Street, First Floor, Topeka, Kansas 66603-3729.
IT IS THEREFORE ORDERED that plaintiff's Motion To Recuse District Judge (Doc. #244) filed January 10, 2003 be and hereby is OVERRULED.
IT IS FURTHER ORDERED that plaintiff's Motion To Alter Or Amend Judgment (Doc. #246) filed January 10, 2003 be and hereby is OVERRULED.
IT IS FURTHER ORDERED that plaintiff's Motion To Stay Proceedings Or Continue Trial (Doc. #241) filed January 10, 2003 be and hereby is OVERRULED.
IT IS FURTHER ORDERED that the Clerk send a copy of this order to the Disciplinary Administrator, Stanton A. Hazlett, 701 Jackson Street, First Floor, Topeka, Kansas 66603-3729.
Dated this 20th day of February, 2003, at Kansas City, Kansas.