Weatherspoon v. University of Arkansas Board of Trustees et al

Filing 118

ORDER denying 115 Motion to Set Aside Judgment. Signed by Judge D. P. Marshall Jr. on 5/4/12. (kpr)

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

FRED WEATHERSPOON
v"

PLAINTIFF
No.4:08-cv-635-DPM

UNIVERSITY OF ARKANSAS BOARD OF
TRUSTEES; DR. LAWRENCE A. DAVIS, JR.,
individually and in his official capacity as
Chancellor of the University of Arkansas at
Pine Bluff; ELBERT BENNETT, individually
and in his official capacity as Vice-Chancellor
of the University of Arkansas at Pine Bluff;
and B. ALAN SUGG, in his official capacity as
President of the University of Arkansas

DEFENDANTS

ORDER
1. lilt is just as important that there should be a place to end as that
there should be a place to begin litigation." Stoll v. Gottlieb, 305 u.s. 165, 172
(1938). Weatherspoon moves to vacate the Court's March 2011 judgment
based on alleged recent statements by Defendant Bennett. Weatherspoon says
that, about eight weeks ago, Bennett told him that he testified falsely about
Weatherspoon's alleged insubordination because Bennett feared losing his
job. Bennett admits he spoke with Weatherspoon after church one day, but
he denies ever saying that he did not tell the truth in this lawsuit.

Weatherspoon moves under subdivisions (2), (3), and (6) of Rule 60(b).

To prevail on his Rule 60(b) (2) motion based on the new evidence,
Weatherspoon must show (1) that the evidence was discovered after the
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court's order, (2) that [he] exercised diligence to obtain the evidence before
entry of the order, (3) that the evidence is not merely cumulative or
impeaching, (4) that the evidence is material, and (5) that the evidence would
probably have produced a different result." Miller v. Baker Implement Co., 439
F.3d 407,414 (8th Cir. 2006). Under Rule 60(b)(3), Weatherspoon must show
by clear and convincing evidence that the University Defendants engaged in
a fraud or misrepresentation that prevented Weatherspoon from fully and
fairly presenting his case. Murphy v. Missouri Department of Corrections, 506
F.3d 1111, 1117 (8th Cir. 2007). And relief under Rule 60(b)(6) is available
only if exceptional circumstances denied Weatherspoon a full and fair chance
to litigate his claim and prevented him from receiving adequate redress. Ibid.
2. Weatherspoon's motion is timely. In its December 2010 Order, the
Court granted summary judgment on Weatherspoon's Title VII claims for
gender discrimination and retaliation and allowed Weatherspoon a fourth
amendment to assert a due-process claim. In March 2011, the Court granted

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summary judgment on that claim and entered judgment. The Court could
have revisited its December 2011 Order until the entry of final judgment in
March 2011. So Weatherspoon's March 2012 motion is timely.
3. Weatherspoon has not carried his burden. This case does not present
the type of extraordinary circumstances required under Rule 60(b)(6). And
the conflicting affidavits - both from interested parties - do not show clear
and convincing evidence of fraud or misrepresentation. FED. R. CIV. P.
60(b)(3); Murphy, 506 F.3d at 1117. That leaves only Weatherspoon's reuest
for relief under Rule 60(b)(2).
Weatherspoon argues that Bennett's alleged lying might have changed
the outcome of his gender-discrimination claim. If Bennett was lying about
the insubordination, Weatherspoon says, then Weatherspoon might be
similarly situated to the alleged female comparators after all. Cf Document

No. 85, at 15-16. But Weatherspoon was still accused of insubordination; his
female comparators were not.

And Bennett was not the only accuser:

Chancellor Davis also said that Weatherspoon was insubordinate.
The alleged new evidence, moreover, does not create circumstances
suggesting pretext for discrimination. It is not enough for Weatherspoon to

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call into question the accuracy or truth of the Defendants' reason for firing

him. Dixon v. Pulaski County Special School District, 578 F.3d 862,869-70 (8th
Cir. 2009), abrogated in immaterial part by Torgerson v. City ofRochester, 643 F.3d
1031 (8th Cir. 2011). "/[P]retext' ... often must be read as shorthand for
indicating that a defendant's proffered discriminatory explanation for adverse
employment action is a pretext for unlawful discrimination, not that it is merely
false in some way." Strate v. Midwest Bankcentre, Inc., 398 F.3d 1011,1017 (8th
Cir.2005) (emphasis original). Weatherspoon's alleged new evidence might
make it more likely that the University's proffered reason for firing him was
false, but it does not make it any more likely that the reason was actually
pretext for gender discrimination. The Court cannot conclude that this
evidence would have produced a different result.

Miller, 439 F.3d at 414.

4. Weatherspoon candidly acknowledges that he has not yet carried his
Rule 60 burden. Instead, he asks the Court to give him the opportunity to
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fully discover the extent and degree to which Bennett's testimony differs from
what he gave during the pendency of the matter" so he may "meet [his]
burden of showing clear and convincing evidence that he is entitled to
relief[.]" Document No. 115, at 2. In light of Bennett's affidavit, however, it

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seems unlikely that additional discovery would show any difference at all
between his current and former testimony: Bennett swears that he told the
truth during this case and that he never told Weatherspoon otherwise. The
proposed discovery would be futile.
Motion to vacate judgment, Document No. 115, denied.
So Ordered.

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D.P. Marshall Jr.

United States District Judge

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