Turner v. Home Depot U.S.A., Inc.
Filing
49
ORDER denying 47 Motion to Reconsider Summary Judgment Ruling by Judge Christine M. Arguello on 12/4/12.(dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 11-cv-02085-CMA-MJW
ROBERT TURNER,
Plaintiff,
v.
HOME DEPOT U.S.A., INC., a Delaware corporation,
Defendant.
ORDER DENYING MOTION TO RECONSIDER SUMMARY JUDGMENT RULING
This matter is before the Court on Plaintiff Robert Turner’s Motion to Reconsider
Summary Judgment Ruling (Doc. # 47), filed October 29, 2012. Defendant responded
on November 23, 2012. (Doc. # 48.)
On October 16, 2012, this Court issued an Order denying Defendant Home
Depot U.S.A., Inc.’s Motion for Summary Judgment. (Doc. # 46.) However, the Court
agreed with Defendant that Plaintiff’s damages were limited based on the after-acquired
evidence doctrine. (Id.) During the course of discovery in this case, Defendant learned
that Plaintiff had secretly recorded over a dozen meetings with his supervisors without
their knowledge. Plaintiff admits that these secret recordings constituted a major work
rule violation under Defendant’s Code of Conduct policy, and that such violations
“normally result in termination of employment for a first offense.” (Doc. # 47-1.)
In support of its Motion for Summary Judgment, Defendant submitted an affidavit
from Hanh Pham, a District Manager for Defendant. (Doc. # 25-22.) Mr. Pham attested
that had Defendant “been aware of an associate secretly audiotaping multiple meetings
with his managers without specific authorization, the associate would have been
terminated for this misconduct.” Mr. Pham also attested that other associates have
been terminated for “engaging in unauthorized recordings in the store.” (Id. at 2)
Plaintiff offered no evidence to rebut Defendant’s contention that it would have fired
Plaintiff had it known of his surreptitious recordings. (Doc. # 30 at 14.) On the
uncontested facts presented by Defendant, the Court found that “Defendant has
established Plaintiff’s wrongdoing was of such severity that Plaintiff would have been
terminated on those grounds alone if Defendant had known of it at the time of the
discharge.” (Doc. # 46 at 3.)
In his Motion to Reconsider, Plaintiff contends that Defendant did not meet its
burden of proving that it would have terminated Plaintiff had it known of the secret
recordings. The three major grounds that justify reconsideration are (1) an intervening
change in controlling law; (2) the availability of new evidence; and (3) the need to
correct clear error or prevent manifest injustice. See Servants of the Paraclete v. Does,
204 F.3d 1005, 1012 (10th Cir. 2000). A motion to reconsider is appropriate where the
court has misapprehended the facts, a party’s position, or the controlling law. Id. (citing
Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir.1991)).
2
Plaintiff does not claim that there has been an intervening change in controlling
law, nor does he present any new evidence suitable for the Court’s consideration.1
Although Plaintiff does not cite the Servants of the Paraclete standard, the Court
construes the instant Motion to Reconsider as invoking the need to correct clear error
or prevent manifest injustice.
Plaintiff first argues that it is inappropriate to determine issue of damages at
the summary judgment stage, and the Court therefore should not have considered
Defendant’s after-acquired evidence defense. To support this argument, Plaintiff cites
to Bozeman v. Per-Se Technologies, Inc., which stated that the after-acquired evidence
defense “relates to damages and, as such, is not relevant at the summary judgment
stage.” 456 F. Supp. 2d 1282, 1291 n.10 (N.D. Ga. 2006). Although Bozeman is
helpful to Plaintiff’s position, this Court is not bound by that decision and Plaintiff cites
no relevant authority from the Tenth Circuit. Moreover, Bozeman made this statement
in passing without any legal analysis or citation. See id. In a much more thorough
order (at least on this issue), another district court in the Northern District of Georgia
has sharply disagreed with Bozeman and held that the after-acquired evidence defense
1
Plaintiff attaches his own affidavit, in which he claims that he has personal knowledge “of numerous instances of major rule violations that did not result in termination of the
employee.” (Doc. # 47-2.) When a party supplements a motion to reconsider with new
evidence, such evidence should be considered only if the movant shows “either that the
evidence is newly discovered [and] if the evidence was available at the time of the decision
being challenged, that counsel made a diligent yet unsuccessful effort to discover the evidence.”
Comm. for the First Amendment v. Campbell, 962 F.2d 1517, 1523 (10th Cir. 1992) (citation
omitted). Here, there is no reason that Plaintiff could have not included his affidavit in his
Response to Motion for Summary Judgment. (Doc. # 30.) As such, the Court will not consider
Plaintiff’s affidavit here.
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is appropriately evaluated at the summary judgment stage. See Haines v. Cherokee
Ctny., No. 08-CV-2916, 2010 WL 28211853, at *30-31 (N.D. Ga. Feb. 16, 2010)
(unpublished). As Haines observes, numerous other district courts have addressed
the after-acquired evidence defense on summary judgment. See id. at *31 (listing
cases). Such an approach is also consistent with the Federal Rules of Civil Procedure.
See Fed. R. Civ. P. 56(d) (“the court . . . may enter an order stating any material fact –
including an item of damages or other relief – that is not genuinely in dispute . . . .”)
(emphasis added).
Plaintiff’s second argument is that the record submitted by Defendant was
insufficient to justify summary judgment on the after-acquired evidence defense. This
is merely a re-framed and longer version of the same argument previously advanced
by Plaintiff in his Response to the Motion for Summary Judgment. Although Plaintiff
presents his argument more persuasively in the instant motion than he did in his
previously filed briefing,2 the Court will not reconsider its Order because Plaintiff offers
no explanation or justification for why he failed to present this expanded version of his
argument earlier. The purpose of a motion to reconsider is not to provide a litigant with
opportunity to fine-tune arguments that were poorly presented the first time around.
See Servants of the Paraclete, 204 F.3d at 1012.
2
This is not to say that the Court would have denied summary judgment on the afteracquired evidence doctrine had Plaintiff presented his case better in the first instance. Even
in the instant Motion to Reconsider, Plaintiff has still failed to rebut Defendant’s evidence that
it would have fired Plaintiff had it known that he had been secretly recording meetings with his
managers.
4
Accordingly, it is ORDERED that Plaintiff’s Motion to Reconsider Summary
Judgment Ruling (Doc. # 47) is DENIED.
DATED: December
04
, 2012
BY THE COURT:
_______________________________
CHRISTINE M. ARGUELLO
United States District Judge
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