TUCKER v. EXPRESS SCRIPTS HOLDING

Filing 68

ENTRY ON MOTION FOR RECONSIDERATION - For the foregoing reasons, Defendant Express Scripts Holding Company's Motion for Reconsideration (Filing No. 64 ) is DENIED. (See Entry). Signed by Judge Tanya Walton Pratt on 12/6/2016. (JLS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MARSHALL B. TUCKER,
Plaintiff,
v.
EXPRESS SCRIPTS HOLDING,
Defendant.

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Case No. 1:14-cv-01698-TWP-MJD

ENTRY ON MOTION FOR RECONSIDERATION
This matter is before the Court on a Motion for Reconsideration filed by Defendant Express
Scripts Holding Company (“Express Scripts”) (Filing No. 64). Following a motion for summary
judgment filed by Express Scripts, the Court entered summary judgment in favor of Express
Scripts on Plaintiff Marshall Tucker’s (“Tucker”) claims for retaliation and harassment but denied
summary judgment on Tucker’s claim for race discrimination under Title VII and Section 1981
(Filing No. 63). Express Scripts asks the Court to reconsider the summary judgment Order
regarding the race discrimination claim. For the following reasons, the Court DENIES the Motion
for Reconsideration.
I. LEGAL STANDARD
This Motion is properly classified as a motion to reconsider under Federal Rule of Civil
Procedure 54(b), as no final judgment has been entered in this case. See Fed. R. Civ. P. 54(b)
(“any order or other decision, however designated, that adjudicates fewer than all the claims or the
rights and liabilities of fewer than all the parties does not end the action as to any of the claims or
parties and may be revised at any time before the entry of a judgment adjudicating all the claims
and all the parties’ rights and liabilities”).

The Court applies a similar standard as applied to motions to alter or amend a judgment
under Rule 59(e). Motions to reconsider filed pursuant to Rule 54(b) or Rule 59(e) are for the
purpose of correcting manifest errors of law or fact or to present newly discovered evidence not
available at the time of briefing, and a motion to reconsider an order under Rule 54(b) is judged
by largely the same standard as a motion to alter or amend a judgment under Rule 59(e). KatzCrank v. Haskett, 2014 U.S. Dist. LEXIS 95144, at *6 (S.D. Ind. July 14, 2014); Woods v. Resnick,
725 F. Supp. 2d 809, 827–28 (W.D. Wis. 2010).
Motions to reconsider “serve a limited function: to correct manifest errors of law or fact
or to present newly discovered evidence.” State Farm Fire & Cas. Co. v. Nokes, 263 F.R.D. 518,
526 (N.D. Ind. 2009). The motion is to be used “where the Court has patently misunderstood a
party, or has made a decision outside the adversarial issues presented to the Court by the parties,
or has made an error not of reasoning but of apprehension.” Bank of Waunakee v. Rochester
Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990) (citation omitted).
The purpose of a motion for reconsideration is to ask the court to reconsider matters
“properly encompassed in a decision on the merits.” Osterneck v. Ernst & Whinney, 489 U.S. 169,
174 (1989). The motion “will be successful only where the movant clearly establishes: (1) that
the court committed a manifest error of law or fact, or (2) that newly discovered evidence
precluded entry of judgment.” Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 954 (7th Cir.
2013) (citation and quotation marks omitted). A manifest error “is not demonstrated by the
disappointment of the losing party. It is the wholesale disregard, misapplication, or failure to
recognize controlling precedent.” Oto v. Metropolitan Life Ins. Co., 224 F.3d 601, 606 (7th Cir.
2000) (citation and quotation marks omitted).

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“Reconsideration is not an appropriate forum for rehashing previously rejected arguments
or arguing matters that could have been heard during the pendency of the previous motion.”
Ahmed v. Ashcroft, 388 F.3d 247, 249 (7th Cir. 2004) (citation and quotation marks omitted).
Relief pursuant to a motion to reconsider is an “extraordinary remed[y] reserved for the exceptional
case.” Foster v. DeLuca, 545 F.3d 582, 584 (7th Cir. 2008).
II.

DISCUSSION

Express Scripts asks the Court to reconsider its summary judgment decision regarding
Tucker’s race discrimination claim brought pursuant to Title VII and Section 1981. Express
Scripts explains that,
While Defendant does not concede that Plaintiff established any disputed material
facts supporting a prima facie case of race discrimination, that finding is not
material to this motion. Rather, Defendant seeks reconsideration of the Court’s
second and third steps in the analysis, namely Defendant’s proffered legitimate
reason for termination, and Plaintiff’s burden of proving that reason pretextual.
(Filing No. 65 at 5.) Express Scripts further claims, “[i]n addition, the Court has overlooked
Plaintiff’s ultimate burden of persuasion as to discriminatory motive throughout the burdenshifting analysis.” Id. at 6.
In arguing that the Court should reconsider its summary judgment ruling on the race
discrimination claim, Express Scripts asserts that the Court adopted Tucker’s mischaracterization
of the evidence, thereby misunderstanding Express Scripts’ proffered reason for Tucker’s
termination and misconstruing the pretext issue.
Express Scripts points to other cases within the Seventh Circuit and notes that the other
courts held that employers’ reorganization, reduction in force, or financial difficulties were
legitimate reasons for termination. Express Scripts then goes on to distinguish “position” from
“duties” and asserts that a “position” can be eliminated and the duties of a laid-off employee can

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be absorbed by a retained employee. It explains that such is the case here; Tucker’s position was
eliminated, and another supervisor absorbed Tucker’s duties. Express Scripts then asserts that,
“[b]ound by the above precedents and undisputed evidence, this Court should hold that Express
Scripts’ proffered reason to terminate Tucker was the RIF resulting from its reorganization.”
(Filing No. 65 at 11.)
In this case, the Court did determine that Express Scripts’ proffered reason for Tucker’s
termination—a reduction in force—was a legitimate reason for termination. The Court specifically
held, “Express Scripts asserts that it terminated Tucker because of its nationwide RIF following
acquisition of Medco. This is a legitimate, non-discriminatory reason for the termination.” (Filing
No. 63 at 12.) This was a determination favorable to Express Scripts. Express Scripts’ request to
reconsider the summary judgment Order on the basis of the proffered reason for Tucker’s
termination does not warrant reconsideration and reversal of the summary judgment decision.
Express Scripts claims that “Tucker’s only argument for pretext goes to the reasonableness
of Express Scripts’ realignment of duties among the three supervisors . . . essentially asking the
Court to ‘act as a super personnel department’ to second-guess Express Scripts’ business
judgment,” which the Court cannot do. (Filing No. 65 at 12.) Contrary to Express Scripts’
characterization of Tucker’s pretext argument, Tucker did not ask the Court to judge the
reasonableness of Express Scripts’ business judgment. Rather, Tucker argued that Express
Scripts’ explanation for his being laid off was not based in fact. Express Scripts explained that,
through its reduction in force, Tucker’s position was being eliminated, and Tucker designated
evidence that his position was not eliminated, and thus, Express Scripts’ explanation was not based
in fact.

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In its request for reconsideration, Express Scripts seems to ask the Court to view the
designated evidence in a light more favorable to Express Scripts or to weigh the conflicting
designated evidence. However, the well-established standard for summary judgment is that the
court reviews “the record in the light most favorable to the non-moving party and draw[s] all
reasonable inferences in that party’s favor,” Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009)
(citation omitted), and does not weigh the evidence. Hemsworth v. Quotesmith.com, Inc., 476 F.3d
487, 490 (7th Cir. 2007).
As the Court noted in its summary judgment decision, “[t]hough a plaintiff has the burden
of proof on the issue of pretext, at this stage, it is sufficient to merely cast doubt on the veracity of
the employer’s stated reason.” (Filing No. 63 at 12, citing Stumpf v. Thomas and Skinner, Inc.,
770 F.2d 93, 98 (7th Cir. 1985)). Tucker satisfied that summary judgment burden through the
designated evidence. Reconsideration on the basis of the pretext analysis is not warranted.
Lastly, Express Scripts claims that the Court overlooked Tucker’s ultimate burden of
persuasion as to discriminatory motive throughout the burden-shifting analysis. The Court notes
that the Seventh Circuit very plainly explained:
[I]t is not true that to get over the hurdle of summary judgment a plaintiff must
produce the equivalent of an admission of guilt by the defendant. All that is
required is evidence from which a rational trier of fact could reasonably infer that
the defendant had fired the plaintiff because the latter was a member of a protected
class.
Troupe v. May Dep’t Stores Co., 20 F. 3d 734, 737 (7th Cir. 1994).
Furthermore, the Seventh Circuit very recently reaffirmed and clarified that regardless of
whether a plaintiff uses the direct method, indirect method, or both methods of proof for his
employment discrimination claim, “the legal standard . . . is simply whether the evidence would
permit a reasonable factfinder to conclude that the plaintiff’s race, ethnicity, sex, religion, or other

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proscribed factor caused the discharge or other adverse employment action.” Ortiz v. Werner
Enterprises, Inc., 834 F.3d 760, 765 (7th Cir. 2016). The sole question that matters is whether a
reasonable juror could conclude that the plaintiff would have kept his job if he was a different race
and everything else had remained the same. See Achor v. Riverside Golf Club, 117 F.3d 339, 341
(7th Cir. 1997); Troupe, 20 F.3d at 736–37. Express Scripts demands more of Tucker at the
summary judgment stage than what is required by law. Tucker has designated sufficient evidence
to allow his claim for race discrimination to be decided by a jury, not by the Court on summary
judgment.
III. CONCLUSION
For the foregoing reasons, Defendant Express Scripts Holding Company’s Motion for
Reconsideration (Filing No. 64) is DENIED.

SO ORDERED.

Date: 12/6/2016

DISTRIBUTION:
Jia Li
OGLETREE, DEAKINS, NASH, SMOAK & STEWART
[e-mail]
Todd M. Nierman
OGLETREE, DEAKINS, NASH, SMOAK & STEWART
[e-mail]
Gregory A. Stowers
STOWERS & WEDDLE PC
[e-mail]

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