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Flowers v. Session

United States District Court, S.D. Mississippi, Eastern Division

April 10, 2019

WARREN C. FLOWERS PLAINTIFF
v.
JEFF SESSIONS, ATTORNEY GENERAL DEFENDANT

          MEMORANDUM OPINION AND ORDER

          KEITH STARRETT UNITED STATES DISTRICT JUDGE

         This is 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 [71]. The Court also grants in part and defers ruling in part on Defendant's Motion in Limine [68], as provided below.

         A. Motion for Reconsideration [71]

         Plaintiff 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.

         “A 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 [71] was filed on March 28, 2019, within twenty-eight days of the Court's Memorandum Opinion and Order [67] of March 18, 2019. Therefore, Rule 59(e) applies.

         “A 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).

         First, 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 [56]. 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. 30, 2007).

         Regardless, 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 Defendant's motion.

         B. Motion in Limine [68]

         The Government filed a Motion in Limine [68] seeking the exclusion of evidence concerning several issues. The Court will address them one at a time.

         1. KKK Comment

         First, 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.

         The 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.

         2. Other Claims of ...


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