United States District Court, D. New Mexico
ORDER DENYING PLAINTIFF'S MOTION FOR
GREGORY B. WORMUTH, UNITED STATES MAGISTRATE JUDGE
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.
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.
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. 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.
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.
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.
Plaintiff's Motion, which was fully briefed on March 25,
2019, doc. 79, is now before the Court.
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).
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
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.
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.
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
Plaintiff provided no evidence suggesting Defendant actively
solicited customer complaints.
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
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
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.
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.
Plaintiff proffered no evidence indicating that Defendant
disparately disciplined her.
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.
Plaintiff's affidavit fails to provide admissible
evidence that Defendant disparately disciplined Plaintiff
compared to Steve Evarts.
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
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 ¶¶6-8) (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 ...