Chambers v. Kansas City Kansas Community College

Filing 90

MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED that plaintiff's Motion To Request The Judge's Rulings Be Vacated Or Set Aside (Doc. #84) filed September 10, 2013 be and hereby is SUSTAINED with respect to the Memorandum And Order (Doc. #71) dated June 28, 2013 and OVERRULED with respect to the Memorandum And Order (Doc. #65) dated June 13, 2013. IT IS FURTHER ORDERED that the Memorandum And Order (Doc. #71) dated June 28, 2013 be and hereby is VACATED. IT IS FURTHER ORDERED that plain tiff's ADEA claims are DISMISSED for lack of subject matter jurisdiction because plaintiff failed to exhaust his administrative remedies before filing suit. Accordingly, that portion of Defendant's Motion For Summary Judgment (Doc. #45) fi led March 15, 2013, which is directed to plaintiff's ADEA claims is OVERRULED AS MOOT. IT IS FURTHER ORDERED that the rest of Defendant's Motion For Summary Judgment (Doc. #45) filed March 15, 2013 is SUSTAINED. The Court enters summary ju dgment in defendant's favor and against plaintiff on plaintiff's Title VII race-based disparate treatment claim and retaliation claim. Plaintiff's Title VII claims for (1) gender-based disparate treatment and (2) race and/or gender harassment remain for trial. Signed by Chief Judge Kathryn H. Vratil on 1/29/2014. Mailed to pro se party Johnny Chambers by regular mail. (kao)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOHNNY CHAMBERS,

)
)
Plaintiff,
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v.
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KANSAS CITY KANSAS
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COMMUNITY COLLEGE,
)
)
Defendant.
)
____________________________________)

CIVIL ACTION
No. 11-2646-KHV

MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s Motion To Request The Judge’s Rulings Be Vacated
Or Set Aside (Doc. #84) filed September 10, 2013. In his motion, plaintiff asks that Judge Murguia’s
orders denying plaintiff’s motion to strike supplemental affidavits and granting in part defendant’s
motion for summary judgment be vacated due to a conflict of interest and bias on the part of U.S. District
Judge Carlos Murguia. See Memorandum And Order (Doc. #65) filed June 13, 2013 (ruling on motion
to strike); Memorandum And Order (Doc. #71) filed June 28, 2013 (ruling on summary judgment).
Plaintiff also argues that the summary judgment order contains erroneous facts. For reasons set forth
below, the Court sustains in part and overrules in part plaintiff’s motion.
Legal Standards
In his order dated June 13, 2013, Judge Murguia denied plaintiff’s motion to strike the
supplemental affidavits of Leota Marks and Carly Eastling which defendant had submitted in support
of its summary judgment motion. Judge Murguia found no support for plaintiff’s contention that the
affidavits were knowingly false. See Doc. #65. In his order dated June 28, 2013, Judge Murguia
(1) dismissed plaintiff’s age-based claims for lack of subject matter jurisdiction, (2) denied as moot
the age-based portion of defendant’s summary judgment motion and (3) granted summary judgment to

defendant on plaintiff’s Title VII race-based disparate treatment claim and Title VII retaliation claim.
See Doc. #71.
Plaintiff asserts that Judge Murguia’s orders should be vacated or set aside because Judge
Murguia had a conflict of interest arising out of his wife’s appointment to the Kansas Board of Regents.
By statute, a judge is disqualified in any proceeding in which his or her impartiality might reasonably
be questioned. 28 U.S.C. § 455(a).
As to the summary judgment order, the Court construes the pro se motion as one for relief from
a judgment or order pursuant to Fed. R. Civ. P. 60(b)(6), which states in part that “the court may relieve
a party . . . from a final judgment . . . for the following reasons: . . . (6) any other reason justifying relief
from the operation of the judgment.” Fed. R. Civ. P. 60(b)(6). The Court recognizes that Rule 60(b)(6)
provides a “grand reservoir of equitable power to do justice in a particular case.” Compton v. Alton
Steamship Co., 608 F.2d 96, 106 (4th Cir. 1979). Relief under Rule 60(b)(6) may not be premised,
however, on grounds which are enumerated in clauses (b)(1) through (b)(5) of Rule 60. Liljeberg v.
Health Servs. Acquisition Corp., 486 U.S. 847, 864 (1988). In determining whether to vacate Judge
Murguia’s summary judgment order under Rule 60(b)(6), the Court must consider the risk of injustice
to the parties, the risk that denial of relief will produce injustice in other cases and the risk of
undermining public confidence in the judicial process. See Liljeberg, 486 U.S. at 864.
With respect to Judge Murguia’s order on the motion to strike, however, the Court will consider
plaintiff’s motion as a motion to reconsider. The Court has discretion whether to grant a motion to
reconsider. See Brumark Corp. v. Samson Res. Corp., 57 F.3d 941, 944 (10th Cir.1995). A motion
which asks the Court to reconsider a non-dispositive order shall be based on (1) intervening change
in controlling law, (2) availability of new evidence or (3) a need to correct clear error or prevent

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manifest injustice. D. Kan. Rule 7.3(b). A motion to reconsider is not a second opportunity for the
losing party to make its strongest case, to rehash arguments or to dress up arguments that previously
failed. Jones v. Potter, No. 09-2222-KHV, 2010 WL 394087, at *1 (D. Kan. Oct. 6, 2010). In general,
the Court should deny a motion to reconsider unless it clearly demonstrates manifest error of law or fact
or presents newly discovered evidence. See Sump v. Fingerhut, Inc., 208 F.R.D. 324, 327 (D. Kan.
2002). Such motions are not appropriate if movant only wants the Court to revisit issues already
addressed or to hear new arguments or supporting facts that could have been presented originally. See
Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991).
Factual Background
By memorandum dated July 10, 2013, the Clerk of Court advised the parties that Judge Murguia
intended to disqualify himself from this case because his wife had recently been appointed to the Kansas
Board of Regents. See Notice Concerning Waiver Of Judicial Disqualification (Doc. #72). The parties
had the opportunity to waive the disqualification by notifying the Clerk of their position no later than
July 20, 2013. Id. The Clerk did not receive waivers from all parties by that date and on July 23, 2013,
the court reassigned the case to the undersigned judge. See Docket Entry #73.
Judge Murguia’s wife was appointed to the Kansas Board of Regents on June 27, 2013. On
June 13, 2013, Judge Murguia entered his order denying plaintiff’s motion to strike supplemental
affidavits (Doc. #65), and on June 28, 2013, he entered the order granting defendant’s summary
judgment motion (Doc. #71). Plaintiff asserts that both rulings should be vacated because Judge
Murguia had a conflict of interest.

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Analysis
Judge Murguia’s decision to recuse was fully consistent with 28 U.S.C. § 455, which provides
in relevant part as follows: “Any justice, judge, or magistrate judge of the United States shall
disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”
28 U.S.C. § 455(a). The reason for Judge Murguia’s disqualification arose on June 27, 2013. Therefore
the Court first considers whether Judge Murguia’s order dated June 28, 2013, the following day, should
be vacated.
I.

Order Dated June 28, 2013
The goal of section 455(a) is to avoid even the appearance of partiality.” Liljeberg, 486 U.S. at

860 (quoting with approval opinion below, 796 F.2d 796, 802 (5th Cir. 1986)). Judge Murguia
obviously recognized this goal. Defendant argues that the record contains no evidence that Judge
Murguia had any partiality in its favor. The Court agrees, but that is not the standard for disqualification.
Once the appearance of partiality arises, a judge must act to put it aside. In this case, Judge Murguia’s
order of June 28, 2013 was premature because it was not apparent that all parties would waive his
disqualification.
Federal Rule of Civil Procedure 60(b)(6) can be used to vacate orders by a judge who later
disqualifies if the ground for disqualification existed at the time of the order. See Russell v. Lane,
890 F.2d 947, 949 (7th Cir. 1989). This remedy is not to be used lightly. Id. (citing Liljeberg, 486
U.S. at 864). In determining whether a judgment should be vacated for a violation of Section 455(a),
the Court must consider the risk of injustice to the parties, the risk that denial of relief will produce
injustice in other cases and the risk of undermining public confidence in the judicial process. See
Liljeberg, 486 U.S. at 864. Applying those factors to this case, the Court concludes that Judge Murguia’s

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order which granted defendant’s summary judgment motion should be vacated.

Vacating and

reconsidering that order is the appropriate way to remove any taint of impropriety.
That said, the Court has thoroughly reviewed defendant’s motion for summary judgment and all
supporting and opposing documents.1 The Court concludes that Judge Murguia’s order accurately states
the law and the factual record. Viewing the record in the light most favorable to plaintiff, this Court
independently finds that defendant is entitled to summary judgment for the reasons well stated in Judge
Murguia’s memorandum and order.
In his motion to vacate, plaintiff also seeks reconsideration of Judge Murguia’s order. A litigant
seeking reconsideration of a final judgment may file a motion to alter or amend the judgment no later
than 28 days after its entry. Fed. R. Civ. P. 59(e). Plaintiff did not timely file his motion and he cites
no authority or excuse for its untimeliness. Under the circumstances, however, the Court considers the
motion and construes it as one under Rule 59(e). See Hatfield v. Bd. of Cnty. Comm’rs. For Converse
Cnty., 52 F.3d 858, 861 (10th Cir. 1995); Larson v. Del. Highlands AL Servs. Provider, No. 10-2295KHV, 2012 WL 3599416, at *1 (D. Kan. August 21, 2012) (Rule 59(e) motion essentially motion for
reconsideration).
A court has discretion whether to grant a motion to reconsider. Brumark Corp. v. Samson Res.
Corp., 57 F.3d 941, 944 (10th Cir. 1995). The Court may recognize any one of three grounds justifying
reconsideration: an intervening change in controlling law, availability of new evidence or the need to

1

These include the following: (1) Defendant’s Motion For Summary Judgment (Doc.
#45) filed March 15, 2013; (2) Memorandum In Support Of Defendant’s Motion For Summary Judgment
(Doc. #46) filed March 15, 2013; (3) Plaintiff’s Response And Motion In Opposition To Defendant’s Motion
For Summary Judgment (Doc. #50) filed April 16, 2013; (4) Reply Memorandum In Support Of Defendant’s
Motion For Summary Judgment (Doc. #53) filed April 30, 2013. Although plaintiff did not seek or receive
leave to file a sur-reply, the Court has also considered Reply Memorandum In Opposition To Defendant’s
Motion For Summary Judgment (Doc. #55) filed May 17, 2013.
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correct clear error or prevent manifest injustice. Major v. Benton, 647 F.2d 110, 112 (10th Cir. 1981);
Burnett v. W. Res., Inc., 929 F. Supp. 1349, 1360 (D. Kan. 1996). Revisiting issues previously
addressed is not an appropriate basis for reconsideration, nor is advancing new arguments or presenting
facts that were previously available. Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991).
Plaintiff has not presented new facts which he could not have presented originally and his motion seeks
to have the Court revisit issues already addressed. Having concluded that Judge Murguia fairly recited
the material facts and properly applied the relevant law, the Court overrules plaintiff’s motion to
reconsider.
II.

Order Dated June 13, 2013
No taint of partiality attaches to Judge Murguia’s order of June 13, 2013, which ruled on

plaintiff’s motion to strike. Doc. #65. This order preceded the disqualifying event by two weeks.
Therefore, it need not be revisited. In determining whether to vacate all prior actions of a judge who
disqualifies, the Court is to exercise its discretion to ensure that decisions are untainted by an appearance
of partiality but not impose unnecessary delay and additional expense. Rohrbach v. AT&T Nassau
Metals Corp., 915 F. Supp. 712, 718 (M.D. Penn. 1996). Insofar as plaintiff seeks reconsideration of
this order, his request comes too late. Motions to reconsider non-dispositive motions must be filed
within 14 days after the order is filed. D. Kan. R. 7.3(b). Judge Murguia’s order was filed on June 13,
2013. Plaintiff filed his motion to reconsider on September 10, 2013. It is not timely filed and the Court
overrules it.
IT IS THEREFORE ORDERED that plaintiff’s Motion To Request The Judge’s Rulings Be
Vacated Or Set Aside (Doc. #84) filed September 10, 2013 be and hereby is SUSTAINED with respect
to the Memorandum And Order (Doc. #71) dated June 28, 2013.

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IT IS FURTHER ORDERED that plaintiff’s Motion To Request The Judge’s Rulings Be
Vacated Or Set Aside (Doc. #84) filed September 10, 2013 be and hereby is OVERRULED with respect
to the Memorandum And Order (Doc. #65) dated June 13, 2013.
IT IS FURTHER ORDERED that the Memorandum And Order (Doc. #71) dated June 28, 2013
be and hereby is VACATED.
IT IS FURTHER ORDERED that plaintiff’s ADEA claims are DISMISSED for lack of subject
matter jurisdiction because plaintiff failed to exhaust his administrative remedies before filing suit.
Accordingly, that portion of Defendant’s Motion For Summary Judgment (Doc. #45) filed March 15,

2013, which is directed to plaintiff’s ADEA claims is OVERRULED AS MOOT.
IT IS FURTHER ORDERED that the rest of Defendant’s Motion For Summary Judgment

(Doc. #45) filed March 15, 2013 is SUSTAINED. The Court enters summary judgment in defendant’s
favor and against plaintiff on plaintiff’s Title VII race-based disparate treatment claim and retaliation
claim. Plaintiff’s Title VII claims for (1) gender-based disparate treatment and (2) race and/or gender
harassment remain for trial.
Dated this 29th day of January, 2014 at Kansas City, Kansas.
s/ Kathryn H. Vratil
KATHRYN H. VRATIL
United States District Judge

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