Mosley v. Alabama Unified Judicial System

Filing 61

ORDER DENYING Plf's 60 Motion for Reconsideration as set out. Signed by Judge Callie V. S. Granade on 5/29/2013. (tot)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LINDA JOHNSON-MOSELEY,
Plaintiff,
vs.
ALABAMA UNIFIED JUDICIAL
SYSTEM, ADMINISTRATIVE
OFFICE OF THE COURTS; THE
JUVENILE COURT OF MOBILE
COUNTY, ALABAMA; THE HON.
EDMOND NAMAN; and
LAWRENCE BATTISTE,
Defendants.

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Civil Action No. 12-0184-CG-N

ORDER
This matter is before the court on the motion for reconsideration filed
by the plaintiff, Linda Johnson-Moseley (“Moseley”). Doc. 60. For the
reasons stated below, the court finds that the motion is due to be DENIED.
I. RECONSIDERATION STANDARD
Reconsideration is considered to be an “extraordinary” remedy which is
to be employed “sparingly.” Gougler v. Sirius Products, Inc., 370 F.Supp.2d
1185, 1189 (S.D. Ala. 2005) (citing United States v. Bailey, 288 F.Supp.2d
1261, 1267 (M.D.Fla. 2003); Pennsylvania Ins. Guar. Ass'n v. Trabosh, 812
F.Supp. 522, 524 (E.D.Pa. 1992); Spellman v. Haley, 2004 WL 866837, *2
(M.D.Ala. Feb.22, 2002) (“litigants should not use motions to reconsider as a
knee-jerk reaction to an adverse ruling”). “A motion for reconsideration

should raise new issues, not merely readdress issues litigated previously.”
PaineWebber Income Props. Three Ltd. P'ship v. Mobil Oil Corp., 902 F.Supp.
1514, 1521 (M.D.Fla. 1995).
Generally, courts have recognized three grounds which justify the
reconsideration of an order: (1) an intervening change in controlling law; (2)
the availability of new evidence; and (3) the need to correct clear error or
manifest injustice. Summit Medical Center of Alabama, Inc. v. Riley, 284
F.Supp.2d 1350, 1355 (M.D.Ala. 2003).
Here, Moseley argues that the court committed multiple errors of law
and fact in its summary judgment order. Doc. 60 at 1. A motion to
reconsider based upon clear error is appropriate “when the Court has
patently misunderstood a party ... or has made a mistake, not of reasoning,
but of apprehension.” Wendy's Int'l, Inc. v. Nu–Cape Constr., Inc., 169 F.R.D.
680, 684 (M.D.Fla. 1996). The opposite side of this coin is that “[a] motion to
reconsider is not a vehicle for rehashing arguments the Court has already
rejected or for attempting to refute the basis of the Court's earlier decision.”
Lamar Advertising of Mobile, Inc. v. City of Lakeland, Fla., 189 F.R.D. 480
(M.D. Fla. Oct. 7, 1999). Nor does a motion for reconsideration provide an
opportunity to simply reargue—or argue for the first time—an issue the
Court has once determined. Court opinions “are not intended as mere first
drafts, subject to revision and reconsideration at a litigant's pleasure.”
Quaker Alloy Casting Co. v. Gulfco Indus., Inc., 123 F.R.D. 282, 288 (N.D.Ill.

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1988). Thus, “[t]he burden is upon the movant to establish the extraordinary
circumstances supporting reconsideration.” Mannings v. Sch. Bd. of
Hillsborough Cnty., 149 F.R.D. 235, 235 (M.D.Fla. 1993).
II. §1983 CLAIMS (COUNTS ONE AND TWO)
In its summary judgment order, the court noted that Moseley’s
opposition to summary judgment contained no mention of her 1983 claims
and thus deemed them to be abandoned, granting summary judgment on
Counts One and Two in the defendants’ favor. Doc. 58 at 8-9 (citing
Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1322 (11th Cir. 2001) (other
citations omitted).
Moseley now argues that the court erred in reaching this conclusion
because “the [d]efendants do not challenge Counts One and Two of her 2nd
Amended Complaint. They offered no arguments or evidence contesting Dr.
Moseley’s claims brought pursuant to the 5th and 14th Amendments to the
United States Constitution.” Doc. 60 at 1-2 (emphasis in original). Thus,
according to Moseley, her claims were not abandoned and should not have
been dismissed because Wilkerson, supra, does not require a plaintiff to
address at summary judgment a claim raised in the complaint but not
attacked by the moving party at summary judgment. Doc. 60 at 3. Moseley
also cited Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 592 (11th
Cir. 1995), for the same purpose, i.e., where the defendant does not raise an
issue in its motion for summary judgment, then the plaintiff has nothing to

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respond to in its opposition brief. Doc. 60 at 3-4. Moseley’s discussion of
Wilkerson and Resolution Trust Corp. are correct but beside the point
because the defendants did, in fact, attack her §1983 claims.
A. Due Process Claim (Count One)
With regard to Count One, Moseley alleged a violation of her property
rights in her job as a merit system employee without due process of law. Doc.
24 at 12. In their summary judgment brief, the defendants stated that:
[Moseley] alleges that she was not placed back into
the position that she held prior to being laid off,
due to abolishment of her merit system class
because of significant budget concerns within the
state’s judicial system, and subsequently reinstated
upon appeal … it is undisputed that [the]
Employee’s Appeal Board ordered [Moseley] to be
reinstated and paid back pay, which was done, the
order specifically stated that she was to be
reinstated to [a] merit system position “comparable
[to the] position in the next nearest class to the one
abolished.” She was.
Doc. 40 at 5, 16 (citing the Alabama Unified Judicial System Employee
Appeals Board decision, Doc. 40-4). This assertion of undisputed fact, which
was stated twice in the defendants’ motion for summary judgment,
challenges Moseley’s claim that she was deprived of a property right in her
job as a merit system employee by pointing to the fact that Moseley was
reinstated and received back pay. This was sufficient to put plaintiff on
notice that the substance of her due process claim was being attacked. It also
runs contrary to Moseley’s assertion in her motion for reconsideration that
the defendants offered no arguments or evidence regarding her 5th and 14th

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Amendment claims. See Doc. 60 at 1-4. Accordingly, Moseley’s motion with
regard to Count One is due to be denied.
B. Equal Protection Claim (Count Two)
With regard to Count Two, Moseley alleged a violation of her equal
protection rights as a result of alleged employment discrimination based
upon the fact that she is a black female. Doc. 24 at 12. In the first paragraph
of the legal argument section of their summary judgment brief, the
defendants stated that “[Moseley] brings claims under both Title VII and 42
U.S.C. 1981 and 1983. In cases where §1983 is employed as a remedy for the
same conduct attacked under Title VII, ‘the elements of the two causes of
action are the same.’ ” Doc. 40 at 6. (citing Cross v. State of Alabama, 49 F.3d
1490, 1508 (11th Cir. 1995)). What followed was the defendants’ argument
concerning Moseley’s Title VII and §1981 claims. See Doc. 40. The language
which the defendants placed at the beginning of their argument put Moseley
on notice that their attack upon her Title VII claims was also an attack upon
her §1983 claims where the same conduct, i.e., employment discrimination,
was at issue. Thus, the court finds that Moseley’s motion for reconsideration
is due to be denied as to Count Two.
In any event, the question of whether Moseley abandoned her §1983
equal protection claims is moot because the court dismissed her
discrimination and retaliation claims under Title VII and §1981. Doc. 58 at
19, 26. This dismissal would have also applied to her §1983 equal protection

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claims, even absent a finding of abandonment. Thus, Moseley’s motion for
reconsideration is due to be denied as to Count Two.
III. DISCRIMINATION CLAIMS (COUNTS THREE AND FIVE)
A. The Court’s Statement of the Law and Analysis of Moseley’s
Prima Facie Case
Moseley argues that the court misstated the protected factors covered
by Title VII. Doc. 60 at 4. She is incorrect. In its order, the court stated that
“for claims of race or sex discrimination, the plaintiff must show that (1) she
is a member of a protected class (here, female and African-American); (2) she
was qualified for the position she held; (3) she suffered an adverse
employment action; and (4) her employer treated her less favorably than
similarly-situated individuals outside of her protected class.” Doc. 58 at 10
(citing Alvarez v. Royal Atlantic Developers, Inc., 610 F.3d 1253, 1264 (11th
Cir. 2010). This is an accurate statement of the protected factors under Title
VII discrimination law, and the same factors that Moseley cited herself. See
Doc. 45 at 15.
What Moseley highlights as an inaccurate statement of the law by the
court is actually an excuse to offer a belated citation to case law which
Moseley neglected to put forth in her summary judgment brief. That case,
Jeffries v. Harris County Community Action Association, 615 F.2d 1025 (5th
Cir. 1980), states unequivocally that “when a Title VII plaintiff alleges that
an employer discriminates against black females, the fact that black males
and white females are not subject to discrimination is irrelevant and must

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not form any part of the basis for a finding that the employer did not
discriminate against the black female plaintiff.” Id. at 1034. Moseley’s
citation to Jeffries does not compel any change in the court’s disposition of
the case.
First, as suggested, supra, the court notes that the time for Moseley to
cite Jeffries and point out its extensive discussion of the “sex plus” theory of
discrimination was in her summary judgment brief, not in a motion to
reconsider. Jeffries is most certainly not new law, having been issued by the
old 5th Circuit in 1980. Additionally, the court notes that Moseley herself
titled the portion of her summary judgment brief dealing with her Title VII
discrimination claims as “TITLE VII SEX DISCRIMINATION CLAIM (AOC
only).” Doc. 45 at 15. Moseley also summarized the requirements for
establishing “a prima facie case of sex discrimination” without referring to
race and sex as a separate subset of discrimination, as called for by Jeffries.
Id. A motion for reconsideration does not represent an opportunity for
Moseley to refine her legal argument and add 33-year-old citations which she
could have and should have included in her brief from the beginning.
Secondly, the court’s discussion and ultimate disposition of Moseley’s
sex discrimination claim would have been the same even if it had been cast
and analyzed as a “race and sex claim” as envisioned by Jeffries. The court
found that Moseley had established a prima facie case of discrimination. Doc.
58 at 15. Moving on to the next step of the McDonnell Douglas analysis, the

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court found that the defendants proffered legitimate, non-discriminatory
reasons. Id. at 16-17. The court then found that Moseley failed to prove
pretext by a preponderance of the evidence. Id. at 17-19. Thus, Moseley’s
belated citation to Jeffries is moot.
B. Pretext
Moseley also seeks to expand on her summary judgment argument
with regard to the defendants’ proffered legitimate, non-discriminatory
reasons by contending that “the defendants’ legitimate nondiscriminatory
reason for Dr. Moseley’s non selection has to specifically relate to why her
name was not sent out of committee for an interview with the judge.” Doc. 60
at 7. Moseley offers a number of new citations for the first time, including 42
U.S.C. § 2000e-2(a)(2), Connecticut v. Teal, 457 U.S. 440, 448 (1982), and
Patrick v. Ridge, 394 F.3d 311 (5th Cir. 2004), among others. Id.
Unfortunately for Moseley, none of this constitutes grounds for
reconsideration of the court’s summary judgment order because it is precisely
the sort of “rehashing [of] arguments the Court has already rejected” which is
not appropriate on a motion for reconsideration. See Lamar Advertising,
supra. Moseley already raised this issue in her opposition brief, where she
cited only two cases to support her argument that the defendants’ proffered
reasons should have addressed her failure to advance beyond the screening
committee. Doc. 45 at 14, 16. Neither of the cases Moseley cited at summary

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judgment supported her argument,1 and waving new citations in the court’s
face in an attempt to take a “second bite at the apple” constitutes an abuse of
the Rule 59(e) motion. DeGidio v. Pung, 125 F.R.D. 503, 505 (D.Minn. 1989).
Additionally, the court notes that Moseley’s attempted refinement is no
more convincing than her original argument because it ignores her own
underlying allegations of discrimination. Moseley alleged a prima facie case
of discrimination by claiming that, inter alia, “the position was filled by
Defendant Battiste, a male who is outside Moseley’s protected group.” Doc.
45 at 15; see also Doc. 24 at 12-13. The defendants proffered a legitimate,
non-discriminatory reason for this allegation -- i.e., for hiring Battiste – and
thus directly addressed and rebutted Moseley’s allegation. Doc. 40 at 15.
That Moseley was unsuccessful at summary judgment in expanding the scope
of her discrimination allegation is by no means an example of “clear error or

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Moseley quoted Lee v. GTE Florida, Inc., 226 F.3d 1249, 1253 (11th Cir.
2000) for the premise that “evidence that an employer hired (or referred for
interview and consideration) a less qualified applicant over the plaintiff may
be probative” of pretext. Doc. 45 at 14. In doing so, Moseley inserted the
phrase “or referred for interview and consideration” into the quote, thus
warping the citation so that it appeared more supportive to her case than it
actually is. The actual quote from Lee states that “evidence showing an
employer hired a less qualified applicant over the plaintiff may be probative
of whether the employer's proffered reason for not promoting the plaintiff was
pretextual.” 226 F.3d at 1253. Moseley did the same thing in her citation of
Bass v. Board of County Com’rs, Orange County, Fla, 256 F.3d 1095, 1107
(11th Cir. 2001). See Doc. 45 at 14. Moseley inserted the words “or referring”
into the Eleventh Circuit’s language so that case appeared to state that
“[h]iring (or referring) a less qualified person can support an inference of
discriminat[ion].” Thus, Moseley cited no legal authority at summary
judgment which supported her argument on this point.
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manifest injustice” justifying reconsideration of the court’s order. See note 1
supra.
IV. RETALIATION CLAIMS (COUNTS FOUR AND FIVE)
A. CJPO Vacancy
On the subject of Moseley’s retaliation claims, the defendants argued
at summary judgment that “the Plaintiff has not presented sufficient
evidence to support any claim that any other action by the defendants rises to
the level of a Title VII violation.” Doc. 40 at 14. The court disagreed, and
found that Moseley had established a prima facie case of retaliation with
regard to the CJPO position. Doc. 58 at 22. The court then found that
Moseley failed to prove pretext by a preponderance of the evidence, and held
that summary judgment was due to be granted. Id. at 25-26.
With a wave of the hand, Moseley dismisses the court’s pretext
discussion as irrelevant, and instead fixates on the defendants’ earlier,
unsuccessful argument as to the prima facie elements, asserting that she was
not required to proceed further than that point. Doc. 60 at 9. The court’s
review of the cases Moseley cited – Wilkerson, 270 F.3d at 1322; Celotex v.
Catrett, 477 U.S. 317 (1986); or Clark v. Coates, 929 F.2d 604, 6008 (11th Cir.
1991) – reveals no support for this argument. Accordingly, the court finds no
clear error or manifest injustice with regard to Moseley’s allegation of
retaliation concerning the CJPO position.

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B. Other Retaliation Claims
The court also wrote that Moseley’s allegation that she was denied the
opportunity to compete for the new position of Deputy Chief Probation officer
was “devoid of any citation to evidence which would support the claim.” Doc.
58 at 22. Moseley now contends that this is incorrect because she “provides
testimony about the newly created position of Deputy Chief Probation Officer
in her second declaration with exhibits, as part of her sur-rebuttal to
defendants’ Reply.” Doc. 60 at 10.
However, Moseley’s second declaration and accompanying exhibits
were not part of her sur-reply. See Doc. 51-1. Rather, they are submitted for
the first time in her motion for reconsideration. See Doc. 60-1. Moseley
purports to explain that she did not attach the exhibits with her sur-reply
because she was “awaiting permission to file the document.” Doc. 60 at 10, n.
2. Nowhere can the court find an example of a party waiting to submit
attachments and exhibits to an underlying motion until after the motion for
leave has been granted. Moseley made no mention in her motion for leave
that she was awaiting the court’s permission before filing the cited
attachments. She attached the proposed sur-reply to the motion for leave, but
there were no exhibits included with the proposed document. See Doc. 51.
Thus, the court’s determination that there was no evidence to support
Moseley’s claims was not incorrect, because the documents Moseley now
relies upon at reconsideration were not part of the record evidence at

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summary judgment. “[W]here a party attempts to introduce previously
unsubmitted evidence on a motion to reconsider, the court should not grant
the motion absent some showing that the evidence was not available during
the pendency of the motion.” Cumulus Media, Inc. v. Clear Channel
Communications, Inc., 304 F.3d 1167 (11th Cir.2002) (quotation omitted).
Moseley has not argued that her second declaration and accompanying
exhibits were unavailable during the summary judgment phase, and
therefore, the court declines to consider them. Thus, the only error in this
instance is attributable to plaintiff’s counsel for failing to timely file the
supporting documents.
Finally, the court finds no error with regard to its conclusions about
Moseley’s claims of retaliatory demotion, reduction in work duties, and
retaliation for her 2010 EEOC Charge. Accordingly, reconsideration of the
court’s summary judgment order on Counts Four and Five is inappropriate.
V. CONCLUSION
For the reasons discussed above, the court finds that Moseley’s motion
for reconsideration is due to be and hereby is DENIED.
DONE and ORDERED this 29th day of May, 2013.
/s/ Callie V.S. Granade
UNITED STATES DISTRICT JUDGE

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