Price v. Bavaria Inn Rest.

HEATHER PRICE, Plaintiff, v. BAVARIA INN RESTAURANT, INC., d/b/a Shotgun Willies, Defendant.

Civil Action No. 17-cv-03000-PAB-NYW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

September 8, 2020

Chief Judge Philip A. Brimmer

ORDER

This matter is before the Court on Plaintiff's Motion for Reconsideration [Docket No. 116], Plaintiff's Motion to Supplement Filing [Docket No. 126], and defendant's Motion to Strike Plaintiff's Motion to Supplement Filing [Docket No. 127]. The Court has jurisdiction under 28 U.S.C. § 1331.

I. BACKGROUND

On December 14, 2017, plaintiff Heather Price sued her former employer, defendant Bavaria Inn Restaurant, d/b/a Shotgun Willie's ("defendant"), raising one claim of retaliation under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. Docket No. 1; Docket No. 7 at 9-10. Plaintiff alleged in her complaint that defendant retaliated against her after she had reported that one of defendant's managers, Randy Thornton, had sexually harassed her at work. Docket No. 7 at 9.

On November 21, 2019, the Court granted defendant's motion for summary judgment. Docket No. 111. The Court found that plaintiff had failed to demonstrate that there was a genuine issue of fact with respect to whether a majority of the committee that made the decision to terminate plaintiff knew of plaintiff's complaints of sexual harassment so as to create a genuine dispute of fact as to whether there was a causal link between her complaints and her termination. Id. at 9-11. The Court concluded that, because no reasonable jury could find the requisite causal connection between plaintiff's protected activity and the adverse employment action, defendant was entitled to summary judgment on plaintiff's claim. Id. at 11-12.

In addition, the Court noted that, in plaintiff's response to defendant's motion for summary judgment, she suggested that defendant continued to retaliate against her after her termination - specifically, plaintiff asserted that defendant retaliated against her by refusing to rehire her after she filed this lawsuit. Id. at 12 n.13 (citing Docket No. 54). The Court found that this allegation could not preclude summary judgment in favor of defendant because plaintiff had not alleged in her EEOC charge that defendant had retaliated against her after her termination. Id. (quoting Kahler v. Leggitt, No. 18-cv-03162-WJM-KMT, 2019 WL 5104775, at *4 (D. Colo. May 3, 2019) ("[T]o have exhausted administrative remedies with respect to a particular claim, [a]n EEOC charge must contain facts that would prompt an investigation into the claim at issue.") (quotation omitted)). The Court found that plaintiff had not exhausted her administrative remedies with respect to her post-termination retaliation allegations. Id. On December 12, 2019, plaintiff filed a motion for reconsideration. Docket No. 116.

II. LEGAL STANDARD

The Federal Rules of Civil Procedure do not specifically provide for motions forreconsideration. See Hatfield v. Bd. of Cty. Comm'rs for Converse Cty., 52 F.3d 858, 861 (10th Cir. 1995). Instead, motions for reconsideration fall within a court's plenary power to revisit and amend interlocutory orders as justice requires. See Paramount Pictures Corp. v. Thompson Theatres, Inc., 621 F.2d 1088, 1090 (10th Cir. 1980) (citing Fed. R. Civ. P. 54(b)). A motion to reconsider may be construed as a motion to amend or alter the judgment under Fed. R. Civ. P. 59(e) or as a motion seeking relief from judgment under Fed. R. Civ. P. 60(b). Van Skiver v. United States, 952 F.2d 1241,1243 (10th Cir. 1991).

A motion to reconsider should be construed as filed pursuant to Rule 59(e) when it is filed within the limit set forth under Rule 59(e). Id.; see also Fed. R. Civ. P. 59(e) ("A motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment.").¹ A Rule 59(e) motion may be granted "to correct manifest errors of law or to present newly discovered evidence." Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir.1997) (internal quotation marks omitted). Relief under Rule 59(e) also is appropriate when "the court has misapprehended the facts, a party's position, or the controlling law." Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir.2000). However, a Rule 59(e) motion is not an opportunity to revisit issues already addressed or to advance arguments that could have been raised previously. See id. Regardless of the analysis applied, the basic assessment tends to be the same: courts consider whether new evidence or legal authority has emerged or whether the prior ruling was clearly in error. Green v. Fishbone Safety Sols., Ltd., 303 F. Supp. 3d 1086, 1091-92 (D. Colo. 2018).

III. ANALYSIS

Because plaintiff does not argue that new evidence has emerged, the Court construes her motion as raising a "clear error" argument. Plaintiff argues that the Court should reconsider its order for three reasons: (1) the Court erred when it did not consider whether plaintiff had been terminated more than once and whether the purported second termination was retaliatory; (2) the Court erred in finding that no genuine issue of fact existed with respect to whether a majority of the committee knew of plaintiff's complaints of retaliation; and (3) the Court erred in finding that it did not have jurisdiction to consider plaintiff's post-termination retaliation allegations. Docket No. 116 at 2-3.

First, plaintiff asserts that the Court erred in "not considering the termination of Plaintiff's re-employment as a waitress, on another day after a prior termination of employment from her concierge position, as unlawful retaliation by Defendant." Id. at 2. Specifically, plaintiff asserts that (1) she was fired from her position as a concierge at defendant's establishment, (2) she was then rehired by defendant as a waitress, and (3) after she was rehired as a waitress, she was fired by defendant again. Id. at 3-4(stating that plaintiff was "fired from her concierge position," rather than transferred or reassigned to a different position, and that plaintiff then "accept[ed] a new position . . . as a waitstaff person" and "was re-employed"). Plaintiff contends that a genuine issue of fact exists with respect to whether this alleged second termination from her waitstaff position was retaliatory, and argues that the Court erred when it failed to consider this alleged retaliation in granting defendant summary judgment. Id. at 2, 4. The Court construes plaintiff's argument as two-fold: first, that the Court committed clear error in not finding that a genuine dispute as to whether plaintiff was terminated on two separate occasions, and second, that the Court clearly erred in not finding a genuine dispute as to whether the alleged second termination was retaliatory.

The Court finds no clear error here. In its summary judgment order, the Court found that the undisputed facts demonstrated that, on June 9, 2015, a committee meeting was held in which the committee discussed terminating plaintiff. Docket No. 111 at 3-4. In addition, the Court found that it was undisputed that plaintiff was terminated on June 10. Id. at 4. Although plaintiff had attempted to dispute the date of her termination, see Docket No. 54 at 6, ¶¶ 12-16 (asserting that she was fired on June 5), the Court found that this asserted disputed fact contradicted plaintiff's prior sworn testimony indicating that she was terminated on June 10, 2015. See Docket No. 111 at 4 n.10; see also Docket No. 65-1 at 6, 154:11-15. Thus, the Court found that plaintiff had failed to create a genuine dispute of fact as to her termination date, and found the June 10, 2015 termination date undisputed. Docket No. 111 at 4. Plaintiff does not argue that this was clear error, and the Court identifies no clear error in its finding.

Moreover, in her summary judgment briefing, plaintiff did not raise any dispute as to the number of times that she was terminated. See Docket No. 54 at 6, ¶¶ 1-4.² In fact, plaintiff's current argument is contradicted by her response to defendant's motion for summary judgment. In the response, plaintiff references a "second level retaliatory period" which she asserts is "marked by Barker's offer of employment as a server to Plaintiff while she was still employed." Docket No. 54 at 8 (emphasis added); see also id. at 15 (stating that plaintiff accepted a demotion when she agreed to take a wait staff position); id. at 17 (referring to "the series of events leading up to Plaintiff's firing," including "its offer of employment, acceptance, and firing of Plaintiff"). In her briefing, plaintiff repeatedly referred to a singular termination. See id. at 3, ¶ 3 (referring to "the firing of Plaintiff on June 5, 2015"); id. at 6, ¶¶ 12-16 ("Plaintiff was fired on June 5, [2015]"); id. at 8, 11 (referring to only one termination in retaliation argument). Because it is undisputed that plaintiff was terminated on June 10, 2015, and because plaintiff did not raise a dispute with respect to any other purported termination, the Court finds noclear error in its conclusion that plaintiff's sole termination occurred on June 10, 2015.

For this same reason, plaintiff's contention that the Court failed to consider whether a purported "second" termination was retaliatory is without merit. The termination that plaintiff argues the Court failed to evaluate for retaliation - the termination from her waitressing position, which occurred on June 10 - is the exact termination that the Court analyzed in its order in considering whether plaintiff was retaliated against. See Docket No. 111 at 8-12. Thus, plaintiff has failed to demonstrate that the Court clearly erred here.

Next, plaintiff argues that genuine issues of material fact exist as to "whether [the committee members who knew of plaintiff's complaints] hid Plaintiff's complaints from the Committee and provided a false basis for termination." Docket No. 116 at 6. The Court perceives no clear error. First,...