United States District Court, S.D. Mississippi, Eastern Division
WARREN C. FLOWERS PLAINTIFF
JEFF SESSIONS, ATTORNEY GENERAL DEFENDANT
MEMORANDUM OPINION AND ORDER
STARRETT UNITED STATES DISTRICT JUDGE
a Title VII case. The Court discussed its background in a
Memorandum Opinion and Order entered on March 18, 2019.
See Flowers v. Sessions, No. 2:17-CV-118-KS-MTP,
2019 WL 1246199 (S.D.Miss. Mar. 18, 2019). For the reasons
below, the Court denies Plaintiff's
Motion for Reconsideration . The Court also
grants in part and defers ruling in part on
Defendant's Motion in Limine , as provided below.
Motion for Reconsideration 
argues that the Court should reconsider its earlier opinion
dismissing his claims of racial discrimination and hostile
work environment because there is new evidence available that
creates genuine issues of material fact as to those claims.
motion asking the court to reconsider a prior ruling is
evaluated either as a motion . . . under Rule 59(e) or . . .
under Rule 60(b). The rule under which the motion is
considered is based on when the motion is filed. If the
motion is filed within twenty-eight days after the entry of
judgment, the motion is treated as though it was filed under
Rule 59, and if it was filed outside of that time, it is
analyzed under Rule 60.” Demahy v. Schwarz Pharma,
Inc., 702 F.3d 177, 182 n. 2 (5th Cir. 2012).
Plaintiff's Motion for Reconsideration  was filed on
March 28, 2019, within twenty-eight days of the Court's
Memorandum Opinion and Order  of March 18, 2019.
Therefore, Rule 59(e) applies.
Rule 59(e) motion calls into question the correctness of a
judgment.” Templet v. Hydrochem, Inc., 367
F.3d 473, 478 (5th Cir. 2004). There are three grounds for
altering a judgment under Rule 59(e): “(1) an
intervening change in controlling law, (2) the availability
of new evidence not previously available, or (3) the need to
correct a clear error of law or prevent manifest
injustice.” Williamson Pounders Architects, P.C. v.
Tunica County, 681 F.Supp.2d 766, 767 (N.D. Miss. 2008).
Rule 59(e) motions are “not the proper vehicle for
rehashing evidence, legal theories, or arguments that could
have been offered or raised before the entry of judgment,
” Templet, 367 F.3d at 478, and they
“should not be used to . . . re-urge matters that have
already been advanced by a party.” Nationalist
Movement v. Town of Jena, 321 F. App=x 359, 364 (5th
Cir. 2009). It is “an extraordinary remedy that should
be used sparingly.” Id. Before filing a Rule
59(e) motion, a party “should evaluate whether what may
seem to be a clear error of law is in fact simply a point of
disagreement” with the Court. Atkins v. Marathon
LeTourneau Co., 130 F.R.D. 625, 626 (S.D.Miss. 1990).
Plaintiff has not presented any “new evidence not
previously available.” Williamson Pounders,
681 F.Supp.2d at 767. Plaintiff knew of these witnesses and
could have presented affidavits prior to entry of the
Court's opinion. If they were unwilling or unable to
testify, Plaintiff could have issued subpoenas and deposed
them. Instead, Plaintiff chose to rely on his own allegations
in response [60, 61] to Defendant's Motion for Partial
Summary Judgment . As the Court previously noted,
Plaintiff failed to offer any evidentiary support whatsoever
for many of his factual claims. Flowers, 2019 WL
1246199 at *2-*4. Therefore, Plaintiff has not presented any
new evidence that was previously unavailable, and he is not
entitled to relief under Rule 59(e). See Allen v.
Envirogreen Landscape Prof'ls, Inc., 721 Fed.Appx.
322, 329 (5th Cir. 2017); Granny's Alliance Holdings,
Inc. v. Farrow Constr. Specialties, Inc., No.
1:11-CV-165-HSO-JMR, 2013 WL 12121497, at *3 (S.D.Miss. July
12, 2013); Jordan v. Am. Suzuki Motor Corp., No.
2:07-CV-66-KS-MTP, 2007 WL 3231651, at *3-*4 (S.D.Miss. Oct.
three of Plaintiff's “new” witnesses -
Jeffrey Artis, Kenrick Short, and Guy Walton - stated that
Plaintiff “was discriminated against because of his
race, retaliated against because of his reporting of
discriminatory actions against him, and worked in a hostile
workplace, ” without providing any specific facts in
support of their conclusions. Exhibits A, B, C to Motion for
Reconsideration, Flowers v. Sessions, No.
2:17-CV-118-KS-MTP (S.D.Miss. Mar. 28, 2019), ECF Nos. 71-1,
71-2, 71-3. Patricia Hudson used different words, but she
likewise provided no specific facts in support of her
conclusion that Plaintiff was subjected to a hostile work
environment and retaliation. Exhibit D to Motion for
Reconsideration, Flowers v. Sessions, No.
2:17-CV-118-KS-MTP (S.D.Miss. Mar. 28, 2019), ECF No. 71-4.
None of the witnesses described specific acts of
discrimination or specific events that created a hostile work
environment. Vague and conclusory affidavits do not create a
genuine dispute of material fact. Kariuki v.
Tarango, 709 F.3d 495, 505 (5th Cir. 2013). Therefore,
even if the Court were to consider Plaintiff's
“new” evidence, it would not change the result of
Motion in Limine 
Government filed a Motion in Limine  seeking the
exclusion of evidence concerning several issues. The Court
will address them one at a time.
the Government argues that the Court should exclude
Plaintiff's testimony regarding an alleged comment about
the Ku Klux Klan made by his training agent, Ronscka. The
Government contends that the testimony is irrelevant to
Plaintiff's remaining claim of retaliation, and that its
probative value is outweighed by the danger of unfair
prejudice if it is admitted. In response, Plaintiff argues
that “[c]omments made to [him] regarding his
co-worker's membership in the KKK are relevant to show
racial biases throughout his workplace that fueled
retaliatory actions against [him].” Plaintiff's
Memorandum in Support of Response at 1, Flowers v.
Sessions, No. 2:17-CV-118-KS-MTP (S.D.Miss. Apr. 1,
2019), ECF No. 76.
Court discussed this testimony in its previous opinion.
See Flowers, 2019 WL 1246199 at *3. The comment was
made by Plaintiff's training agent, rather than his
former supervisor, Rachel Byrd, who allegedly retaliated
against him after he complained of perceived racial
discrimination. Moreover, to prove a claim of retaliation, a
plaintiff must prove “(1) that she engaged in activity
protected under Title VII, (2) an adverse employment action
occurred, and (3) there was a causal connection between her
protected activity and the adverse employment
decision.” Gardner v. CLC of Pascagoula, LLC,
915 F.3d 320, 327 (5th Cir. 2019). Racial bias is not an
element of a retaliation claim. Rather, Plaintiff must prove
that the Government's alleged adverse employment actions
were motivated by Plaintiff's protected activity, such as
filing a charge of discrimination with the EEOC. Therefore,
evidence concerning the alleged “racial biases
throughout [Plaintiff's] workplace” is irrelevant
to his retaliation claim.
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