Barr v. One Touch Direct, LLC et al

Filing 89

ORDER: Plaintiff Alfred Barr's Motion for Reconsideration (Doc. # 79 ) is denied. Signed by Judge Virginia M. Hernandez Covington on 5/18/2016. (DRW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ALFRED BARR,
Plaintiff,
v.

Case No. 8:15-cv-2391-T-33MAP

ONE TOUCH DIRECT, et al.,
Defendants.
_____________________________/
ORDER
This matter comes before the Court in consideration of
Plaintiff Alfred Barr’s Motion for Reconsideration (Doc. #
79), filed on April 22, 2016. Defendants One Touch Direct,
LLC, DPG Employee Leasing, LLC, and AT&T Services, Inc. filed
a response in opposition on May 9, 2016. (Doc. # 86). For the
reasons

stated

herein,

the

Court

denies

the

Motion

for

Reconsideration.
Discussion
Barr alleges he filed his complaint with the Equal
Employment Opportunity Commission (EEOC) in January of 2014.
(Doc. # 64 at ¶ 14); see also (Doc. # 61 at ¶ 1) (stating,
Barr “served the EEOC . . . with verified complaints [on]
January 24, 2014, identifying three respondents, AT&T, [One
Touch Direct], and DPG”). The EEOC assigned charge number

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511-2014-00861, 511-2015-01732, and 511-2015-01742 to the
charges

against

One

Touch

Direct,

AT&T,

and

DPG,

respectively. (Doc. ## 68-1 at 4-6; 79-1 at 5-7, 11-13).
Thereafter, the EEOC issued a right-to-sue letter for each
charge number. (Doc. ## 68-1 at 7-9; 79-1 at 8-10). Barr then
filed this action on October 9, 2015. (Doc. # 1). But, on
November 4 and 9, 2015, the EEOC issued notices of intent to
revoke the right-to-sue letters in the charges against AT&T
and DPG. (Doc. # 68-1 at 13-14; 79-1 at 19-20). The notices
of intent to revoke note, in accordance with 29 C.F.R. §
1601.19(b), that Barr’s right to sue would not be vacated if
he had already filed suit, which he had.
On March 14, 2016, Barr filed his Motion to Review
Administrative Prerequisites requesting the Court remand this
action to the EEOC, to which One Touch Direct, DPG, and AT&T
timely filed a response in opposition. (Doc. ## 61, 66). The
Court

denied

Barr’s

Motion

to

Review

Administrative

Prerequisites on April 15, 2016. (Doc. # 75). Barr now moves
the Court to reconsider its prior Order. (Doc. # 79).
It is within the Court’s discretion to grant a motion
for reconsideration. Lussier v. Dugger, 904 F.2d 661, 667
(11th Cir. 1990). “[R]econsideration is an extraordinary
remedy to be employed sparingly.” Lamar Adver. of Mobile,

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Inc. v. City of Lakeland, 189 F.R.D. 480, 489 (M.D. Fla.
1999). So, “a motion for reconsideration must demonstrate why
the court should reconsider its past decision and set forth
facts or law of a strongly convincing nature to induce the
court

to

reverse

its

prior

decision.”

Fla.

Coll.

of

Osteopathic Medicine, Inc. v. Dean Witter Reynolds, Inc., 12
F. Supp. 2d 1306, 1308 (M.D. Fla. 1998). “The only grounds
for granting a Rule 59 motion are newly discovered evidence
or manifest errors of law or fact.” Anderson v. Fla. Dep’t of
Envtl. Prot., 567 Fed. Appx. 679, 680 (11th Cir. 2014)
(quoting Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007))
(quotation marks and alterations omitted). “[A] district
court does not abuse its discretion when denying a Rule 59(e)
motion made merely ‘to relitigate old matters’ or ‘raise
argument[s] or present evidence that could have been raised
prior to the entry of judgment.’” Id.; see also Michael Linet,
Inc. v. Village of Wellington, Fla., 408 F.3d 757, 763 (11th
Cir. 2005) (stating, “a Rule 59(e) motion [cannot be used] to
relitigate old matters, raise argument or present evidence
that could have been raised prior to the entry of judgment).”
Most, if not all, of Barr’s Motion for Reconsideration
simply rehashes prior arguments or expresses disagreement
with the Court’s April 15, 2016, Order. Further, while Barr’s

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arguments are unpersuasive, the Court addresses several in
particular.
To

begin,

Barr

asserts

new

evidence

warrants

reconsideration. “[I]n order to grant a motion to reconsider
based on the availability of new evidence, a court must first
determine ‘that the evidence was not available during the
pendency of the motion.’” Messinese v. USAA Cas. Ins. Co.,
622 Fed. Appx. 835, 840 (11th Cir. 2015) (quoting Mays v.
U.S. Postal Serv., 122 F.3d 43, 46 (11th Cir. 1997)). The
record before the Court does not support a finding that the
documents attached to the Motion for Reconsideration were not
available

during

the

pendency

of

the

Motion

to

Review

Administrative Prerequisites. Rather, the record demonstrates
Barr simply had issues uploading the documents that were in
his possession. See (Doc. ## 61 at ¶ 1; 68 at 4 (stating,
“Plaintiff . . . attaches to this document, Exhibits A thru
H, which should have been attached to Plaintiff’s document
#61);

71);

Compare

(Doc.

#

68-1),

with

(Doc.

#

79-1).

Furthermore, even if the evidence was new, it still does not
establish the falsity Barr argues exists.
Barr’s exhaustion and primary-jurisdiction arguments are
also

unpersuasive.

When

Barr

originally

instituted

this

action, he had already filed charges with EEOC and received

4 

right-to-sue letters with respect to each charge. (Doc. ## 1;
64 at ¶ 14; 68-1 at 7-9; 79-1 at 8-10). The EEOC’s issuance
of the notices of intent to revoke (Doc. ## 68-1 at 13-14;
79-1 at 19-20), did not obviate Barr’s right to sue given the
fact he had already filed suit and the 90-day period had
expired. See 29 C.F.R. § 1601.19(b).
Furthermore, “[t]he doctrine of primary jurisdiction
‘comes into play whenever enforcement of the claim requires
the resolution of issues, which under a regulatory scheme,
have

been

placed

within

the

special

competence

of

an

administrative body.’” Axiom Worldwide, Inc. v. Becerra, No.
8:08-cv-1918-T-27TBM, 2009 WL 1347398, at *5 (M.D. Fla. May
13, 2009) (citation omitted). Under this doctrine, agencies
are allowed to “‘pass in the first instance on technical
questions of fact uniquely within the agency’s expertise and
experience, or in cases whose referral is necessary to secure
uniformity and consistency in the regulation of business,
such

as

issues

discretion.’”

requiring

Id.

the

(citation

exercise

omitted).

of
“No

administrative
fixed

formula

exists for applying the doctrine of primary jurisdiction.”
United States v. W. Pac. R.R Co., 352 U.S. 59, 64 (1956)
(describing the principle for when the doctrine applies as,
“in cases raising issues of fact not within the conventional

5 

experience of judges or cases requiring the exercise of
administrative discretion, agencies . . . should not be passed
over”).

The

doctrine

of

primary

jurisdiction

“should

be

invoked sparingly.” Axiom Worldwide, 2009 WL 1347398, at *5.
In this case, Barr has not demonstrated the doctrine
requires a referral to the EEOC. The questions presented in
this case, e.g., did discrimination occur, do not raise issues
of fact outside the conventional experience of judges, nor do
they require technical questions of fact to be answered.
Further,

a

resolution

of

this

lawsuit

does

not

require

exercise of administrative discretion, such as whether a
tariff is reasonable. See Carollo v. Cement & Concrete Workers
Dist. Council Pension Plan, 964 F. Supp. 677,685-86 (E.D.N.Y.
1997) (noting that doctrine is appropriately applied “when
the court is faced with discretionary judgment, such as
whether a tariff is ‘reasonable’”). In short, Barr has not
convinced the Court it should reconsider its April 15, 2016,
Order.
Additionally,

Barr

asserts

“[t]he

court

improperly

creates law.” (Doc. # 79 at 8). The Court stated in its April
15, 2016, Order, “nothing in the record indicates the rightto-sue letters in this case were issued pursuant to 29 C.F.R.
§ 1601.28(a)(2).” (Doc. # 75 at 7). And, as Barr himself

6 

points out, “[t]he Plaintiff NEVER requested a notice of RTS
be issued.” (Doc. # 79 at 8) (capitalization in original). It
is precisely because 29 C.F.R. § 1601.28(a)(2) is not at play
here that Simler v. Harrison County Hospital, 110 F. Supp. 2d
886, 890 (S.D. Ind. 2000), as well as the other cases cited
by Barr addressing the early issuance of right-to-sue letters
under 29 C.F.R. § 1601.28(a)(2), are distinguishable. As
such, Barr’s assertion on this point is meritless.
In

summation,

Barr

has

not

carried

his

burden

in

demonstrating why this Court should grant the extraordinary
remedy sought in his Motion for Reconsideration. Therefore,
the Motion for Reconsideration is denied.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Plaintiff Alfred Barr’s Motion for Reconsideration (Doc.
# 79) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this
18th day of May, 2016.

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