Colter v. Bowling Green-Warren County Regional Airport Board et al

Filing 88

MEMORANDUM OPINION AND ORDER Signed by Senior Judge Joseph H. McKinley, Jr. on 6/24/2019. For the reasons set forth, IT IS HEREBY ORDERED that Plaintiff's Motion to Alter or Amend a Judgment Pursuant to Fed. R. Civ. P. 59 and Motion to Remand Age Discrimination Claim to State Court (DN 84 ) is DENIED. cc: Counsel (CDF)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO: 1:17-CV-00118-JHM
GREG COLTER

PLAINTIFF

V.
BOWLING GREEN-WARREN COUNTY
REGIONAL AIRPORT BOARD, et al.,

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiff’s Motion to Alter or Amend a Judgment
Pursuant to Fed. R. Civ. P. 59 and Motion to Remand Age Discrimination Claim to State Court
[DN 84]. Fully briefed, this matter is ripe for decision. For the following reasons, the motion is
DENIED.
I. BACKGROUND
Plaintiff Greg Colter brought this action following his termination from the Bowling
Green-Warren County Regional Airport (the “Airport”). On August 1, 2017, Colter filed this
action in Warren County Circuit Court against the Airport Board; his former supervisor, Robert
Barnett; the City of Bowling Green (the “City”); and Warren County. Defendants jointly removed
the action to this Court on the basis of federal question jurisdiction pursuant to 28 U.S.C. § 1331.
The Complaint includes five claims: Family and Medical Leave Act (“FMLA”) interference,
disability discrimination, age discrimination, tortious interference with a contract, and hostile work
environment.
Previously, in a Memorandum Opinion and Order dated November 15, 2017 [DN 34], the
Court dismissed Barnett and Warren County as defendants, as well as Colter’s claims of tortious
interference with a contract and hostile work environment. Colter asked the Court to reconsider

that decision in a Motion to Alter, Amend, or Vacate [DN 38] which this Court denied in a
Memorandum Opinion and Order dated February 7, 2018 [DN 46]. The remaining Defendants—
the Airport Board and the City—filed motions for summary judgment [DNs 76 & 77] on the
remaining claims of FMLA interference, disability discrimination, and age discrimination. The
Court granted the motions for summary judgment in a Memorandum Opinion and Order dated
April 3, 2019 [DN 82] and entered Judgment [DN 83] in favor of the Defendants the following
day. Once again, Colter asks the Court to reconsider its decision and amend the Judgment
dismissing his case.
II. STANDARD OF REVIEW
Motions to alter or amend a judgment may be “made for one of three reasons: (1) An
intervening change of controlling law; (2) Evidence not previously available has become available;
or (3) It is necessary to correct a clear error of law or prevent manifest injustice.” United States v.
Jarnigan, No. 3:08-CR-7, 2008 WL 5248172, at *2 (E.D. Tenn. Dec. 17, 2008) (citing Fed. R.
Civ. P. 59(e); Helton v. ACS Grp., 964 F. Supp. 1175, 1182 (E.D. Tenn. 1997)); see GenCrop, Inc.
v. Am. Int’l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999). Rule 59(e) is not intended to be used
to “‘relitigate issues previously considered’ or to ‘submit evidence which in the exercise of
reasonable diligence, could have been submitted before.’” United States v. Abernathy, No. 0820103, 2009 WL 55011, at *1 (E.D. Mich. Jan. 7, 2009) (citation omitted); see also Elec. Ins. Co.
v. Freudenberg-Nok, Gen P’ship, 487 F. Supp. 2d 894, 902 (W.D. Ky. 2007) (“Such motions are
not an opportunity for the losing party to offer additional arguments in support of its position.”).
Motions to alter or amend judgments under Rule 59(e) “are extraordinary and sparingly granted.”
Marshall v. Johnson, No. 3:07-CV-171, 2007 WL 1175046, at *2 (W.D. Ky. Apr. 19. 2007).

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III. DISCUSSION
In arguing that the Court’s decision should be reconsidered, Colter suggests that the Court
committed a clear error of law when it determined that his claim of age discrimination failed as a
matter of law. Within the record, the only direct evidence of age discrimination against Colter are
alleged statements made by his supervisor, Rob Barnett. This evidence is offered through the
deposition testimony of Colter, who stated that he heard about Barnett’s comments from his
coworkers. Defendants sought summary judgment on this claim, arguing that evidence of
Barnett’s statements was inadmissible hearsay.

The Court granted the requested summary

judgment to Defendants because it found that “there is no evidence currently before the Court that
could overcome [a] double hearsay issue to be admissible at trial.” (Mem. Op. and Order [DN 82]
at 7). Now, Colter asks for reconsideration, arguing that the Court was incorrect in determining
that Barnett’s statements were hearsay. It is Colter’s contention that the statements in question are
not hearsay because they are not offered for the truth of the matter asserted.
“Hearsay” means a statement that (1) the declarant does not make while testifying at the
current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted
in the statement. Fed. R. Evid. 801(c). In this case, there are two different sets of statements that
are potentially hearsay. The first set of statements are those that Rob Barnett spoke to third parties
about Colter. Allegedly, Barnett said: (1) to Caleb Durham, that Colter was old and fell apart, (2)
to Melissa Minton, that he was looking for someone in their thirties to replace Colter, and (3) to
Joe Lundenberg, that Colter got to the age where he could no longer perform his job. Colter is
correct that this first set of statements may not be hearsay as these statements are not being offered
to prove the truth of the matter asserted. In this case, Colter seeks to use these statements as
evidence of Barnett’s age-related animus against Colter. He is not attempting to prove the truth of

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what Barnett said in these comments. Rather, Colter is correct that “[t]he significance lies entirely
in the fact that the words were spoken,” and therefore, this set of statements is not hearsay.
However, the inquiry does not end there because there is another potentially problematic
set of statements: those made by Durham, Minton, and Lundenburg to Colter where they informed
Colter of Barnett’s age-related comments. Within his deposition, Colter attempts to offer the
substance of these conversations as evidence. For example, Colter testified that Durham told him
about a conversation with Barnett in which Barnett said Colter “got old and fell apart.” (Colter
Dep. [DN 73] at 160−61). If Durham were a witness in this case, he could offer the statement
deemed not hearsay in the previous paragraph—that Barnett said Colter got old and fell apart.
However, because Durham is not a witness in this case, Colter seeks to offer the evidence in his
absence. This is where the statement that was originally not hearsay becomes double hearsay and
therefore, impermissible. Colter wants to testify about what Durham told him in order to prove
the truth of the matter within the statement—that Barnett made discriminatory age-related
comments. Thus, this statement and all others offered by Colter in the absence of those that heard
Barnett’s statements cannot overcome this second hearsay hurdle and should be excluded.
Colter also attempts to reargue his claim of age discrimination through indirect evidence.
Previously, the Court determined that even if Colter were able to make a prima facie case of age
discrimination through circumstantial evidence, Defendants had met their burden of offering a
nondiscriminatory reason for firing Colter and Colter failed to offer proof that Defendants’ reason
was pretext for discrimination. Now, for the first time, Colter offers evidence of Defendants’
pretext by showing that comparable requests for medical leave were granted while his request was
denied. Unfortunately for Colter, a motion for reconsider is not intended to be used as a vehicle
for submitting evidence which in the exercise of reasonable diligence could have been submitted

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before. For these reasons, and in the absence of any arguments of new evidence, change in
controlling law, or manifest injustice, the Court will deny Colter’s motion to reconsider on this
basis.
IV. CONCLUSION
For the reasons set forth above, IT IS HEREBY ORDERED that Plaintiff’s Motion to
Alter or Amend a Judgment Pursuant to Fed. R. Civ. P. 59 and Motion to Remand Age
Discrimination Claim to State Court is DENIED.

cc: counsel of record
June 24, 2019

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