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Dolin v. Thyssenkrupp Elevator Corp.

United States District Court, D. New Mexico

May 10, 2019

LJ DOLIN, Plaintiff,



         This matter comes before the Court on Plaintiff's Motion for Reconsideration. Doc. 76. The Court, having reviewed the Motion and attendant briefing (docs. 78, 79), hereby DENIES the Motion for the reasons that follow.

         I. Background

         This case stems from allegations brought by Plaintiff regarding her employment with Defendant as a female elevator mechanic from August 11, 2010 until February 4, 2016. Doc. 1.[1] Plaintiff filed suit in this Court on June 6, 2016, bringing: (1) equal pay claims under the Equal Pay Act (“EPA”), the New Mexico Fair Pay for Women Act (“FPWA”), and Title VII of the Civil Rights Act, (2) a retaliation claim under Title VII, and (3) a hostile work environment claim under Title VII.[2] On March 30, 2018, Defendant filed a Motion for Summary Judgment, doc. 54, which was fully briefed on May 16, 2018. Doc. 57. The case was thereafter reassigned to the undersigned with the consent of the parties on September 30, 2018. Doc. 60.

         After reviewing Defendant's Motion for Summary Judgment and attendant briefing (docs. 54, 55, 56), and presiding over oral argument on the matter (doc. 68), the Court granted Defendant's Motion for Summary Judgment in part. Doc. 72. First, the Court granted Defendant summary judgment on Plaintiff's claim for wage discrimination on the basis of sex under the EPA, finding that even though Plaintiff made a prima facie showing of discrimination, Defendant successfully demonstrated that Plaintiff's pay differential was based on her performance problems, a factor other than sex. Id. at 14-30. Second, the Court granted Defendant summary judgment on Plaintiff's Title VII sex discrimination claim, finding that even though Plaintiff made a prima facie showing of discrimination, Defendant successfully demonstrated that Plaintiff's pay differential was based on her performance problems, and Plaintiff failed to reveal that this basis was pretextual. Id. at 30-39. Third, the Court granted Defendant summary judgment on Plaintiff's Title VII retaliation claim, finding that Plaintiff failed to make a prima facie case; and even if Plaintiff had successfully made a prima facie case, Defendant would nevertheless prevail because Defendant established that Plaintiff's pay differential was based on her poor performance, and Plaintiff failed to demonstrate that this basis was pretextual. Id. at 39-47. Finally, having dismissed all Plaintiff's federal claims, the Court declined to exercise supplemental jurisdiction over Plaintiff's FPWA claim and dismissed it without prejudice. Id. at 47-53.

         Thereafter, on March 5, 2019, Plaintiff filed a Motion for Reconsideration, which seeks relief pursuant to Federal Rules of Civil Procedure 59(e), 60(b)(1), and 60(b)(6). Doc. 76.[3] Plaintiff's Motion, which was fully briefed on March 25, 2019, doc. 79, is now before the Court.

         II. Legal Standards

         Plaintiff brings her Motion to Reconsider pursuant to Fed.R.Civ.P. 59(e), 60(b)(1), and 60(b)(6). “A district court has considerable discretion in ruling on a motion to reconsider.” Payne v. Tri-State Careflight, 322 F.R.D. 647, 666 (D.N.M. 2017) (citing Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir. 1997)). Grounds for granting a Rule 59(e) motion include “(1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice.” Monge v. RG Petro-Mach. Grp. Co. LTD, 701 F.3d 598, 611 (10th Cir. 2012) (internal quotation and citation omitted). Notably, courts should not grant relief under Rule 59(e) where the movant seeks only to “revisit issues already addressed or advance arguments that could have been raised in prior briefing.” Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (citation omitted).

         Next, the subsections of Rule 60(b) relied upon by Plaintiff permit the court to modify a final judgment due to “mistake, inadvertence, surprise or excusable neglect, ” Fed.R.Civ.P. 60(b)(1), or “any other reason that justifies relief, ” Fed.R.Civ.P. 60(b)(6). “The Tenth Circuit uses three factors in determining whether a judgment may be set aside in accordance with rule 60(b)(1): (i) whether the moving partyʹs culpable conduct caused the default; (ii) whether the moving party has a meritorious defense; and (iii) whether the nonmoving party will be prejudiced by setting aside the judgment.” Payne, 322 F.R.D. at 669 (citing United States v. Timbers Preserve, 999 F.2d 452, 454 (10th Cir. 1993)); see also Pelican Prod. Corp. v. Marino, 893 F.2d 1143, 1146 (10th Cir. 1990) (holding that “[c]arelessness by a litigant or his counsel does not afford a basis for relief under Rule 60(b)(1)”). Relief pursuant to Rule 60(b)(6) “is even more difficult to attain[, ] and is appropriate only when it offends justice to deny such relief.” Saggiani v. Strong, 718 Fed.Appx. 706, 712 (10th Cir. 2018) (unpublished) (quoting Zurich N. Am. v. Matrix Serv., Inc., 426 F.3d 1281, 1293 (10th Cir. 2005)). See also Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 864 (1988) (cautioning that Rule 60(b)(6) should only be applied in “extraordinary circumstances.”).

         III. Analysis

         In her Motion to Reconsider, Plaintiff contends substantial evidence indicates that Defendant's performance-based rationale for denying Plaintiff a plus rate was pretextual. Doc. 76 at 7-15. Particularly, Plaintiff highlights evidence that she argues reveals Defendant solicited customer complaints, exhibited animus towards Plaintiff, and disparately disciplined, evaluated, scrutinized, and denied training to her. Id. Plaintiff argues the Court erred by failing to conclude that this evidence supports her pretext argument, and requests that it deny Defendant's Motion for Summary Judgment on reconsideration. Id. Defendant, in response, contends that the Court should deny Plaintiff's Motion and further requests that it amend its ruling by entering summary judgment in Defendant's favor on Plaintiff's New Mexico Fair Pay for Women Act (“FPWA”) claim. Doc. 78 at 5-13.

         The Court, having reviewed all relevant materials, DENIES Plaintiff's Motion for Reconsideration and DENIES Defendant's request. The Court will begin by addressing why Plaintiff's evidence in support of her Motion for Reconsideration fails to justify relief under either Rule 59 or Rule 60 of the Federal Rules of Civil Procedure. It will then address Defendant's request.

         A. The Court denies Plaintiff's Motion for Reconsideration because Plaintiff provides no new controlling authority, fails to demonstrate a need to correct clear error or prevent manifest injustice, and presents no other meritorious assertion to justify relief under Rule 59 or Rule 60.

         1. Plaintiff provided no evidence suggesting Defendant actively solicited customer complaints.

         To begin, Plaintiff asserts that the Court should deny summary judgment to Defendant, because Defendant aggressively sought out customer complaints about Plaintiff in an effort to manufacture Plaintiff's poor performance record. Doc. 76 at 7-8. Plaintiff contends such efforts demonstrate that Defendant's stated reason for denying a plus rate to Plaintiff was pretextual. Id. The Court, before issuing its Order, considered Plaintiff's argument that Defendant was “ginning up” customer complaints against her. Doc. 72 at 38-39. However, it concluded that no evidence existed suggesting that TKE had, in fact, solicited customer complaints. Id. at 38 (“While the Court in a summary judgment posture does not accept this [evidence] as proof that Defendant did not target Plaintiff, it certainly is not evidence to the contrary.”). Nevertheless, Plaintiff redirects the Court to two pieces of evidence that she contends contradict the Court's finding.

         First, Plaintiff points to Albuquerque District Manager Gary Dodd's testimony that TKE was “seeking to have written documentation about [an] event” and that a TKE employee “had asked the customer if they would provide written documentation of their dispute.” Doc. 76 at 8 (citing doc. 54-5 at 79). A review of the deposition transcript reveals that Mr. Dodd requested documentation from a customer after that customer complained to Defendant about Plaintiff. Doc. 54-5 at 79-80. In other words, Mr. Dodd simply sought to memorialize a customer's preexisting complaints. Asking for a written statement about a previously-communicated complaint is a far cry from soliciting the original complaint. See Arrington v. Southwestern Bell Telephone Co., 93 Fed.Appx. 593, 599-600 (5th Cir. 2004) (“[Plaintiff's] subjective belief that [Defendant employer] solicited the customer complaints, without more, is [] insufficient to cast doubt on [Defendant's] proffered reason for his termination.”).

         Second, Plaintiff directs the Court to an email in which TKE's Southwest Vice President of Construction/Modernization Operations, Mark Dye, asks another employee, “Did you get that customer letter from the Comfort Suites where they voiced their displeasure with LJ's customer skills?” Doc. 76 at 8 (citing doc. 54-21 at 7). This email proves even less than the Dodd testimony referenced above. It is an email asking only if the email recipient had received a customer complaint letter of which Mr. Dye was already aware. It does not reveal that the letter had been or should be solicited, let alone demonstrate that the original complaint had been solicited. Despite Plaintiff's suggestions to the contrary, there is no indication that Mr. Dye sought to relay a hidden directive within the email to solicit customer complaints or that this email was part of a bigger scheme to manufacture a poor performance record against Plaintiff. The Court will not strain to read a meaning into the email merely based on Plaintiff's subjective belief. See Ray v. Tandem Computers, Inc., 63 F.3d 429, 434 (5th Cir. 1995) (The plaintiff's subjective belief that discriminatory intent motivated the defendant's actions was insufficient to establish a material question of fact). In short, the email does nothing to support Plaintiff's theory that Defendant manufactured her poor performance record.

         Based on the foregoing, the Court finds that Plaintiff failed to present evidence suggesting Defendant was “ginning up” complaints about her performance. The Court did not err in so finding in its prior order. Consequently, the Court rejects this argument.

         2. Plaintiff proffered no evidence indicating that Defendant disparately disciplined her.

         The Court previously considered Plaintiff's argument that “she was subjected to different discipline…than other employees who committed the same or more serious offenses.” Doc. 72 at 37 (quoting Chytka v. Wright Tree Service, Inc., 925 F.Supp.2d 1147, 1167 (D. Colo. 2013)). The Court held that Plaintiff had not presented admissible evidence that TKE employed any other employee who suffered from a pattern of performance issues comparable to her own but nevertheless retained a plus rate. Doc. 72 at 37-38. In her Motion for Reconsideration, Plaintiff asserts several arguments in an effort to demonstrate that Defendant disparately disciplined Plaintiff. Doc. 76 at 8-9. The Court will address these arguments, in turn.

         i. Plaintiff's affidavit fails to provide admissible evidence that Defendant disparately disciplined Plaintiff compared to Steve Evarts.

         Plaintiff argues that the record reveals that Defendant disproportionately disciplined Plaintiff compared to Steve Evarts, her predecessor and successor. Id. at 8-9. In support, Plaintiff points to the following passage in her affidavit and the referenced attachments:

6. In February 2009 (roughly 2.5 months after accepting the LR position) I met with TKE Branch Manager, Harold Carr in Hobbs, NM. He invited me to lunch and I asked him what brought him to Hobbs. He replied that he was there to refund $6000.00 to the owner of Watson Truck Supply. . . . The reason for the refund was due to my predecessor [and later, her successor], Steve Evarts, who had failed to service the elevator equipment at Watson Truck Supply for a period of 12 months (1 year). Steve Evarts had left the LR Service Route #5 around August 2008. See attachment B, Letter of Unsatisfactory performance issued by TKE to Steve Evarts February 19, 2008.
7. Steve Evarts was not terminated for missing these service visits, nor did he lose his 12.5% Plus Rate Pay over the incident…
8. By comparison, TKE “wrongfully” terminated me for missing one service visit at TKE customer Cannon Air Force Base. See Attachment C, termination letter from TKE dated March 03, 2010.

Id. at 8 (quoting doc. 55-5 at ΒΆΒΆ6-8) (all ellipses and brackets as in original). Unfortunately for Plaintiff, the key allegation -- that Mr. Evarts failed to service the elevator equipment at Watson Truck Supply for a period of 12 months - is not supported by ...

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