Redford v. K T B S L L C et al

Filing 52

MEMORANDUM RULING granting in part and denying in part 40 Motion for Reconsideration re 36 Memorandum Ruling. 1) Insofar as it seeks to dismiss Plaintiff's Title VII claim against KTBS, LLC, the Defendants' Motion for Reconsideration is DENIED; 2) Insofar as it seeks to dismiss Plaintiff's Title VII claims against Randy Bain and George Sirven, the Defendants' Motion for Reconsideration is GRANTED; and 3) In light of the Courts ruling, the Plaintiff's Title VII claims against Randy Bain and George Sirven are hereby DISMISSED WITH PREJUDICE. Signed by Judge Elizabeth E Foote on 2/10/2016. (crt,Keifer, K)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
CHRIS REDFORD

CIVIL ACTION NO. 13-3156

VERSUS

JUDGE ELIZABETH ERNY FOOTE

KTBS, LLC, ET AL

MAGISTRATE JUDGE HORNSBY
MEMORANDUM RULING

Before the Court is Defendants’ Motion for Reconsideration. [Record Document 40.]
Defendants’ motion asks the Court to reconsider its denial of summary judgment, Record
Document 36, with respect to Plaintiff’s Title VII claims. For the reasons announced below,
the Court GRANTS in part and DENIES in part Defendants’ motion.
I.

Background
Plaintiff Chris Redford alleges that the local TV news station for whom he worked

fired him not, as it claims, because he violated the station’s social media policy, but
because he was a white male. He consequently sought relief from the Court against the
news station, KTBS, LLC; its general manager, George Sirven; and its news director, Randy
Bain, for racial and gender discrimination under Title VII1 and § 19812 and for defamation,

1

42 U.S.C. §§ 2000e to 2000e-17 (2012).

2

42 U.S.C. § 1981. Because the Fifth Circuit analyzes intentional discrimination
claims brought pursuant to Title VII or § 1981 under the same rubric, see Raggs v.
Miss. Power & Light, 278 F.3d 463, 468 (5th Cir. 2002), Plaintiff’s employment
discrimination claims under § 1981 are one in the same as his employment
discrimination claims under Title VII.
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negligence, and intentional infliction of emotional distress under Louisiana law. Record
Document 15.
Defendants moved for summary judgment on all of Mr. Redford’s claims. Record
Document 26. The Court denied summary judgment in almost all respects save for the
Plaintiff’s supplemental state law claims of negligence and intentional infliction of emotional
distress, both of which the Court dismissed. Record Document 36. Defendants now ask
the Court to reconsider its summary judgment ruling in two respects. Record Document
40. First, Defendants argue that failing to dismiss Mr. Redford’s Title VII claims against
all Defendants was a manifest error of law because Mr. Redford cannot as a matter of law
establish either the fourth element of his prima facie case or sufficient pretext to rebut the
Court’s finding that Defendants have shown a legitimate, nondiscriminatory reason for
terminating Mr. Redford. Second, Defendants argue that failing to dismiss Mr. Redford’s
Title VII claims against Mr. Sirven and Mr. Bain was a manifest error of law because
individuals are not susceptible to liability under Title VII.
II.

Motion for Reconsideration Standard
The Federal Rules of Civil Procedure do not formally recognize a motion for

reconsideration. Where it seeks to amend an interlocutory order,3 however, a motion for
reconsideration is generally categorized by courts as a motion pursuant to Rule 54(b), see
James River Ins. Co. v. Affiliates, Inc., 2013 WL 1197235, at *1 (W.D. La. Mar. 25, 2013),
which permits a court to revise an order adjudicating fewer than all the claims among the
3

See Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 185 (5th Cir.
1990) (deeming a denial of summary judgment an interlocutory order).
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parties "at any time" before the entry of final judgment. Fed. R. Civ. P. 54(b).
Rule 54(b) itself, however, contains no standard for evaluating when a court should
amend its own judgment. While the absence of a statutory standard gives courts broad
discretion to modify an order pursuant to Rule 54(b), see Melancon v. Texaco, Inc., 659
F.2d 551, 553 (5th Cir.1981) (finding that a court can modify an order under Rule 54(b)
for any “cause seen by it to be sufficient”), “this broad discretion should be exercised
sparingly in order to forestall the perpetual reexamination of orders and the resulting
burdens and delays.” S. Snow Mfg. Co. v. SnoWizard Holdings, Inc., 921 F. Supp. 2d 548,
564-65 (E.D. La. 2013) (citing 18B Charles A. Wright et al., Federal Practice & Procedure
§ 4478.1 (2d ed. 2002)).
Courts also generally limit their discretion under Rule 54(b) by applying a less
exacting version of the standard used to alter or amend a final judgment under Rule 59(e).
See, e.g., Livingston Downs Racing Ass'n, Inc. v. Jefferson Downs Corp., 259 F. Supp. 2d
471, 474–75 (M.D. La. 2002). Altering or amending a judgment pursuant to Rule 59(e)
is a disfavored, “extraordinary remedy that should be used sparingly.”

Templet v.

HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004); S. Constructors Group, Inc. v.
Dynalectric Co., 2 F.3d 606, 611 (5th Cir. 1993). Indeed, Rule 59(e) permits amendment
to the judgment only “to correct manifest errors of law or fact or to [address] newly
discovered evidence.”

Templet, 367 F.3d at 479 (citing Waltman v. Int'l Paper Co., 875

F.2d 468, 473 (5th Cir. 1989)). Further, a Rule 59(e) motion is “not the proper vehicle for
rehashing evidence, legal theories, or arguments that could have been offered or raised

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before the entry of judgment.” Id. at 479 (citing Simon v. United States, 891 F.2d 1154,
1159 (5th Cir. 1990)).
III.

Analysis
A. Plaintiff’s Title VII Claim
1. Summary Judgment on The Prima Facie Case
Defendants argue that failing to dismiss Mr. Redford’s Title VII claim was a manifest

error of law because even viewing the evidence in a light most favorable to Mr. Redford,
he has not shown that among similarly situated employees in nearly identical
circumstances, he was treated less favorably because of race.
To make a prima facie case of employment discrimination under Title VII, Mr.
Redford must show that (1) he is a member of a protected group; (2) he was qualified for
the position at issue; (3) he was discharged or suffered some adverse employment action
by the employer; and (4) he was treated less favorably because of his membership in that
protected class than other similarly situated employees who were not members of the
protected class, under nearly identical circumstances. See Lee v. Kansas City S. Ry. Co.,
574 F.3d 253, 259 (5th Cir. 2009). Under the fourth element, the most important factors
for determining when employees qualify under the fourth element as comparators, i.e.,
when they are “similarly situated” and treated better “under nearly identical
circumstances," are (1) whether “the employees being compared held the same job or
responsibilities”; (2) whether the "ultimate decision maker as to the employees' continued
employment is the same individual, even if the employees do not share an immediate

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supervisor”; (3) whether the employees' track records are comparable, though they need
not include the identical number of identical infractions; and (4) whether the offenses for
which discipline was meted out were of comparable seriousness. Id. at 260-61. In its
summary judgment ruling, the Court found that two KTBS employees qualified as
comparators: Rhonda Lee, a black female, and Sarah Machi, a white female. Record
Document 36, pp. 13-14. Further, the Court found that Mr. Redford was treated less
favorably than those two comparators because in response to their first infraction of the
station’s social media policy, which prohibits commenting to viewers on Facebook,
Defendants fired Mr. Redford and reprimanded Ms. Lee and Ms. Machi but did not fire
them. Consequently, the Court ruled that Mr. Redford had “presented sufficient evidence
to demonstrate a genuine dispute of fact as to the fourth element of his prima facie case
of gender and racial discrimination.” Record Document 36, p. 15.
Defendants argue that the inclusion of Ms. Machi as a comparator to Mr. Redford
defeats Mr. Redford’s prima facie case as a matter of law because she was in the same
protected racial class as Mr. Redford (she is white) yet she suffered no adverse
employment action.4 Although Defendants raised essentially the same argument in their
4

Defendants assert that Chrissi Coile Reesby, who is a white female, should also
be included as a comparator to Mr. Redford. In his EEOC intake questionnaire, Mr.
Redford stated that Chrissi Coile Reesby “did exactly what they ‘claimed’ I did and she
was never reprimanded or discharged.” Record Document 26-3, p. 21. During his
deposition, Mr. Redford also confirmed that he wrote this statement. Record Document
26-6, p. 30. For reasons discussed below, the inclusion of Chrissi Coile Reesby as a
comparator to Mr. Redford would be irrelevant to the Court’s analysis of the
Defendants’ arguments. The Court therefore declines to decide whether she should be
a comparator and assumes, arguendo, that she is not.
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summary judgment motion, see Record Document 32, p. 5, they reurge it with the benefit
of a Seventh Circuit case not cited in their summary judgment motion. See Crawford v.
Ind. Belt Harbor R.R. Co., 461 F.3d 844 (7th Cir. 2006). In Crawford, out of the roughly
200 total railroad conductors employed by the defendant, thirteen, including the plaintiff,
had amassed a similar amount of infractions in the same time period. Id. at 845-46. Of
the thirteen bad employees, the defendant had fired eleven–one black female and ten
white males–and retained two–both white males. Id. at 845. The black female sued under
Title VII and framed the fourth element of her prima facie case by arguing that there were
two white males who were similarly situated under nearly identical circumstances but,
unlike her, they were not fired. Id. Writing for the court, Judge Posner rejected this
approach as misleading cherry picking. Id. There were twelve, not two, employees who
qualified as comparators for the purposes of analyzing the fourth element of a prima facie
Title VII case. Id. at 845-46. Including all twelve comparators in the analysis of the fourth
element, the court found that the plaintiff’s status as a member of a protected class (black
or female) no longer correlated with an adverse employment action: instead showing that
all (2/2) white or male comparators were treated better than her, the plaintiff could now
only show that a few (2/12) of the white or male comparators were treated better than
her. Id. at 845. Because of this infirmity, the plaintiff was not entitled to relief as a matter
of law. Id. at 845, 847. The Court hypothesized that limiting her comparison to the two
white male employees who were not fired could be a viable approach, but in order to
ensure that fair inferences were drawn from that comparison, she would need to show that

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she and those two employees were comparable in every possible respect save for race or
gender, which she could not do. See id. at 846; see also Lee, 574 F.3d at 259 (“[A]
requirement of complete or total identity rather than near identity would be essentially
insurmountable . . . .”).
Armed with this holding, Defendants argue that Mr. Redford cannot meet the
standard set by Crawford. If he compares himself to Ms. Lee and Ms. Machi, Defendants
argue that his claim fails because race would no longer correlate with an adverse
employment action, i.e., there would be a similarly situated white employee who did not
suffer the same adverse employment action as Mr. Redford did under nearly identical
circumstances. See id. at 845. And if he compares himself only to Ms. Lee, Defendants
argue his claim fails because Ms. Lee is not truly comparable in every possible respect
except race.
Defendants ignore that Mr. Redford has alleged both racial and sexual
discrimination.5 And Crawford, even if it were binding authority, would not disturb Mr.
Redford’s gender discrimination claim because the gender classification of Mr. Redford and
his comparators correlates with whether or not they suffered an adverse employment
action.

461 F.3d at 845.

That is, unlike the relationship between the protected

classification status and employment outcome in Crawford, which was ambiguous because

5

As noted, Mr. Redford filed this suit alleging discrimination based on race and
gender. Record Document 15, pp. 4-6. Likewise, this Court in declining summary
judgment ruled that Mr. Redford had “presented sufficient evidence to demonstrate a
genuine dispute of fact as to the fourth element of his prima facie case of gender and
racial discrimination.” Record Document 36, p. 15.
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very few of the comparators outside the plaintiff’s protected status were treated better
than the plaintiff, here the relationship between the protected classification status and
employment outcome is quite clear: all of Mr. Redford’s comparators are outside Mr.
Redford’s protected status because they are both women and all were treated better than
Mr. Redford because they were not fired. See id. at 845-46; Record Document 36, p. 15.
Therefore, there is still a genuine dispute of fact as to the fourth element of Mr. Redford’s
prima facie case.
In addition, Mr. Redford has also made a prima face case of discrimination based
on the combination of sex and gender–that is, a claim that he was fired not because he
is white or because he is male, but because he is a white male. See Jefferies v. Harris Cty.
Cmty. Action Ass'n, 615 F.2d 1025, 1032-34 (5th Cir. 1980). In Jefferies, a black female
sued her employer for discrimination based on her status as a black female. Id. at 1029.
The facts at trial established, among other things, that every position for which the plaintiff
had applied had been filled by males or non-black females. Id. The district court did not
entertain the plaintiff’s theory that her discrimination was based on a combination of race
and gender. Id. at 1029, 1032. Instead, it addressed whether she was discriminated
against based on race and gender separately and found that she was not entitled to relief
on either theory.

Id.

The Fifth Circuit reversed, holding that as a matter of law

“discrimination against black females can exist even in the absence of discrimination
against black men or white women.” Id. at 1032.
Because Mr. Redford, like the plaintiff in Jefferies, has plead both racial and gender

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discrimination, he may plead that he was discriminated against because of the combination
of his race and gender. See id. at 1029; Record Document 15; see also EEOC Compliance
Manual, EEOC (Apr. 19, 2006), http://www.eeoc.gov/policy/docs/race-color.html#IVC
(labeling this type of claim “intersectional discrimination”). And again, Crawford would not
foreclose this claim because the protected classification, white and male, correlates with
the adverse employment action in this suit.
Thus, even if the Court ignores the high burden that a party moving for
reconsideration faces, the reasons above show that the Defendants have failed to
demonstrate that the Court made a manifest error of law in ruling that there is a genuine
dispute of fact as to whether Mr. Redford has made his prima facie case under Title VII.

2. Summary Judgment on Pretext
Defendants next argue that Mr. Redford cannot as a matter of law demonstrate
pretext to rebut the Court’s finding that Defendants have shown a legitimate,
nondiscriminatory reason for terminating Mr. Redford.
Under the burden-shifting framework for Title VII claims, once a plaintiff makes a
prima facie case of employment discrimination, the defendant then has the burden to
articulate a legitimate, nondiscriminatory reason for its employment action. See Reeves
v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142 (2000). If the defendant can
demonstrate a legitimate, nondiscriminatory reason for the adverse action, the burden
shifts back to the plaintiff to show that “the legitimate reasons offered by the defendant
were not its true reasons, but were a pretext for discrimination.” Id. at 143.

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In its summary judgment ruling, the Court found that the Defendants had
demonstrated a legitimate, nondiscriminatory reason for firing Mr. Redford because his
reaction on Facebook to a viewer’s comment referenced subjects that were more
inappropriate than the subjects discussed in Ms. Lee’s or Ms. Machi’s Facebook responses.
Record Document 36, pp. 16-17. The Court also ruled, however, that Mr. Redford had
demonstrated that there was a genuine dispute of fact about whether Defendants’
proffered reasons were pretextual. Mr. Redford offered evidence that KTBS’s social media
policy only applied to employee’s official social media accounts and not to their private
social media accounts. Id. at 17-19. Mr. Redford also showed that he shared the post that
caused his termination from his private, rather than official, account. Based on this, the
Court found that Mr. Redford had made a credible claim that his termination was
pretextual because there was arguably no violation of KTBS’s social media policy, and
therefore company policy. Id. at 17-19.
Defendants’ arguments here raise no new law or facts in contesting this ruling.
Rehashing arguments before the Court is inappropriate for a motion for reconsideration.
Templet, 367 F.3d at 479. The Court therefore declines to reconsider its ruling that there
is a genuine dispute of fact about whether Defendants’ proffered reasons for firing Mr.
Redford were pretextual.
Thus, for the reasons stated above, the Court DENIES Defendants’ motion to
reconsider the Court’s ruling that Defendants are not entitled to summary judgment on
Plaintiff’s Title VII claim.

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B. Plaintiff’s Title VII Claims Against George Sirven and Randy Bain
Defendants argue Plaintiff cannot sustain his Title VII claims against George Sirven
and Randy Bain because under Fifth Circuit precedent, there is no individual liability for
employees under Title VII. Though Defendants raised this argument in their motion for
summary judgment, see Record Document 26-3, p. 26, the Court did not address it in its
summary judgment ruling and Mr. Redford, so far as the Court can see, has likewise not
addressed it.
Here, Defendants are correct. In the Fifth Circuit, “there is no individual liability for
employees under Title VII.” Smith v. Amedisys Inc., 298 F.3d 434, 448 (5th Cir. 2002)
(citing Indest v. Freeman Decorating, Inc., 164 F.3d 258, 262 (5th Cir. 1999)). “Further,
a plaintiff is not entitled to maintain a Title VII action against both an employer and its
agent in an official capacity.” See id. at 449 (citing Indest, 164 F.3d at 262). Thus, the
Court GRANTS in part the Defendants’ motion to reconsider and DISMISSES the
Plaintiff’s Title VII claim against Randy Bain and George Sirven. Pursuant to 28 U.S.C. §
1367, however, Plaintiff may continue to pursue his state law claims against Randy Bain
and George Sirven.
IV.

Conclusion
For the foregoing reasons, the Defendants’ Motion for Reconsideration, Record

Document 40, is hereby GRANTED in part and DENIED in part. The Court makes the
following rulings:
1) Insofar as it seeks to dismiss Plaintiff’s Title VII claim against KTBS, LLC, the

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Defendants’ Motion for Reconsideration is DENIED;
2) Insofar as it seeks to dismiss Plaintiff’s Title VII claims against Randy Bain and
George Sirven, the Defendants’ Motion for Reconsideration is GRANTED; and
3) In light of the Court’s ruling above, the Plaintiff’s Title VII claims against Randy
Bain and George Sirven are hereby DISMISSED WITH PREJUDICE.

THUS DONE AND SIGNED in Shreveport, Louisiana, on this 10th day of February, 2016.

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