Purchase v. Shawnee Community College

Filing 60

ORDER DENYING 54 Motion to Vacate 52 Order on Motion for Summary Judgment; GRANTING 56 Motion for Leave to Appeal in forma pauperis. Signed by Judge Nancy J. Rosenstengel on 10/17/14. (klh2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KENT PURCHASE,
Plaintiff,
vs.
SHAWNEE COMMUNITY COLLEGE,
Defendant.

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Case No. 12-CV-266-NJR-SCW

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
This matter is currently before the Court on a “Motion to Vacate Order for
Summary Judgement [sic] to Defendant” filed by Plaintiff, Kent Purchase, on October 1,
2014 (Doc. 54). Also before the Court is Plaintiff’s Motion for Leave to Appeal in forma
pauperis (Doc. 56).
BACKGROUND
Mr. Purchase filed this suit after he was terminated from his position on the
maintenance staff at Shawnee Community College (“the College”).

The complaint

alleged that the College violated Title VII, the Americans with Disabilities Act, the
Genetic Information Nondiscrimination Act, and the Age Discrimination in
Employment Act (Doc. 1). The complaint also alleged facts giving rise to claims of
hostile work environment and racial discrimination in violation of Title VII,
discrimination on the basis of disability in violation of the Americans with Disabilities

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Act, and retaliatory discharge (Doc. 1).
The College filed its amended motion for summary judgment on January 29, 2014
(Doc. 43), and Purchase filed a response on February 27, 2014 (Doc. 45). A hearing on
the motion was scheduled at 11 a.m. on September 8, 2014, in front of the undersigned
judge (Doc. 49). Purchase received the notice of hearing, however, he misplaced the
notice and consequently failed to appear (Doc. 54). The undersigned granted summary
judgment in favor of the College at the hearing, and then subsequently issued an order
detailing the reasons for granting the motion and making clear that Purchase’s absence
from the hearing did not factor into the Court’s decision (Doc. 52).
On October 1, 2014, Purchase filed his “Motion to Vacate Order for Summary
Judgement [sic] to Defendant” (Doc. 54). On October 10, 2014, before the College’s time
to respond to his Motion to Vacate had expired or the Court had ruled on the Motion,
Purchase filed a notice of appeal from the final judgment issued in this case (Doc. 55).
At the same time, Purchase filed a motion for leave to proceed on appeal in forma pauperis
(“IFP”) (Doc. 56).
DISCUSSION
A. Motion to Vacate
Even though the Federal Rules of Civil Procedure do not officially recognize a
“motion to vacate,” courts generally construe such motions as being brought under Rule
59(e) or Rule 60(b). Because Purchase’s motion was filed within twenty-eight days of
the entry of judgment and appears to assert a manifest error of law or fact by the Court
in granting summary judgment, the Court understands Purchase’s motion to be a Rule

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59(e) motion. See Kiswani v. Phoenix Sec. Agency, Inc., 584 F.3d 741, 742–43 (7th Cir. 2009).
As an initial matter, the Court must address its jurisdiction to decide Purchase’s
Rule 59 motion. Normally, “a notice of appeal divests the district court of its control
over those aspects of the case involved in the appeal.” May v. Sheahan, 226 F.3d 876, 879
(7th Cir. 2000) (quoting Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982)).
In a scenario such as this, however, where a party prematurely files a notice of appeal
before the Court has acted on a timely Rule 59 motion, the notice of appeal does not
divest the Court of jurisdiction to rule on the motion. See FED. R. APP. P. 4(a)(4)(B)(i).
The notice of appeal is, in effect, suspended until the Court disposes of the Rule 59
motion. See FED. R. APP. P. 4(a)(4)(B)(i).
Having established that it has jurisdiction to rule on the motion, the Court now
moves on to address the merits of the motion. Rule 59(e) permits a court to amend a
judgment only if the movant demonstrates a manifest error of law or fact or presents
newly discovered evidence. See, e.g., Miller v. Safeco Ins. Co. of Am., 683 F.3d 805, 814 (7th
Cir. 2012).

“This rule enables the court to correct its own errors and thus avoid

unnecessary appellate procedures.” Id. (internal citation and quotation marks omitted).
The decision to grant or deny a Rule 59(e) motion is entrusted to the “sound judgment”
of the district court. Id.
In his motion, Purchase apologizes for missing the September 8th hearing and
requests that the Court vacate the order granting summary judgment to the College so
that he can argue his case for disability discrimination before the Court (Doc. 54).
Purchase takes exception to the College’s statement that he returned to work
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immediately following his second injury on the job (Doc. 60). Purchase argues “that is
not completely true” because he missed a number of days due to doctor appointments
and pain, and his excessive absences were noted in his performance evaluation (Doc. 60).
He further argues that his injuries limited his ability to walk, to lift over ten pounds, and
to sleep (Doc. 60).
Purchase’s arguments fall short of the standard for relief under Rule 59(e). His
argument regarding his limitations is not new; he made this argument in his response to
the College’s motion for summary judgment, and it was rejected by the Court (See Doc.
52). Rule 59 is not for “rehashing previously rejected arguments.” Caisse Nationale de
Credit Agricole v. CBI Industries, Inc., 90 F.3d 1264, 1270 (7th Cir. 1996). On the other
hand, Purchase’s argument regarding absences from work is new and was not made in
his response to the College’s motion for summary judgment (See Doc. 45). However,
that argument could have and should have been made to the Court at that time. Rule 59 is
“not appropriately used to advance arguments or theories that could and should have
been made before the district court rendered a judgment . . . .” Miller v. Safeco Ins. Co. of
Am., 683 F.3d 805, 814 (7th Cir. 2012). Even if the Court were to consider this argument,
it would not alter the Court’s ultimate conclusion. There is little to no evidence in the
record regarding the number of days that Purchase was absent from work or the reason
for his absences. An argument that is unsupported by definite, competent evidence is
insufficient to defeat summary judgment. See Albiero v. City of Kankakee, 246 F.3d 927,
931-32 (7th Cir. 2001).

In conclusion, Purchase has not stated or demonstrated any grounds for relief

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under Rule 59(e), and the Court remains persuaded that it was correct in granting its
summary judgment in favor of the College on Purchase’s disability discrimination claim.
Accordingly, Purchase’s motion to vacate (Doc. 54) is denied.
B. Motion for Leave to Appeal In Forma Pauperis
As previously mentioned, shortly after Purchase filed his motion to vacate, he
filed his notice of appeal from the final judgment, along with a motion to proceed on
appeal in forma pauperis (“IFP”). A federal court may permit a party to proceed on
appeal IFP without full prepayment of fees provided the party is indigent and the appeal
is taken in good faith. 28 U.S.C. § 1915(a)(1) & (3); FED. R. APP. P. 24(a)(3)(A).
The declaration supporting Purchase’s motion provides that he is presently
unemployed and has no monthly income (Doc. 50).

His wife’s wages and public

assistance total just over $1,600 per month, but their monthly expenses total
approximately $1,500 (Doc. 50). They own a home and two cars, but do not have any
significant amount of cash or money in a bank account. Therefore, the Court finds
Purchase to be indigent within the meaning of the statute.
Moreover, the Court cannot say that Purchase is taking an appeal in bad faith.
An appeal is taken in “good faith” if it seeks review of any issue that is not clearly
frivolous, meaning that a reasonable person could suppose it to have at least some legal
merit. Lee v. Clinton, 209 F.3d 1025, 1026 (7th Cir. 2000). Purchase indicates that he is
appealing the Court’s decision to grant summary judgment in favor of the College on his
disability discrimination claim (see Doc. 55). Summary judgment was granted on this
claim because Purchase could not show that he met the definition of disabled under the

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Americans with Disabilities Act (see Doc. 52). Thus, while the Court remains convinced
that summary judgment was appropriate in this case, Purchase seeks in good faith to
contest this conclusion with the appellate court. He shall be allowed to do so without
prepayment of the appellate filing fee.
CONCLUSION
Plaintiff’s “Motion to Vacate Order for Summary Judgement [sic] to Defendant”
(Doc. 54) is DENIED; his motion for leave to proceed on appeal in forma pauperis (Doc.
56) is GRANTED.
IT IS SO ORDERED.
DATED: October 17, 2014
s/ Nancy J. Rosenstengel
NANCY J. ROSENSTENGEL
United States District Judge

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