Ruth v. Eka Chemicals, Inc.
ORDER denying 59 Motion to Alter Judgment. Signed by District Judge Sharion Aycock on 6/12/2015. (geb)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
STEVE G. RUTH
CIVIL ACTION NO. 1:13-CV-00165-SA-DAS
EKA CHEMICALS, INC.
Plaintiff Steve Ruth initiated suit against his former employer Eka Chemicals, Inc.,
alleging that he was terminated because of his age in violation of the Age Discrimination in
Employment Act (“ADEA”). Defendant filed a Motion for Summary Judgment . In ruling on
Defendant’s motion, the Court found that Plaintiff presented a prima facie case of age
discrimination, but that he was unable to rebut one of Defendant’s two asserted legitimate nondiscriminatory justifications for his termination. Summary judgment was granted.
Before the Court now is Plaintiff’s Motion to Alter the Judgment or for Reconsideration,
or Alternatively to Grant Relief from Judgment . Defendant filed its Response , but
Plaintiff has not provided the Court with a reply.
Plaintiff seeks relief under both Rule 59(e) and Rule 60(b). Yet because his motion was
timely filed, it is appropriately analyzed under the “unrestricted scope of Rule 59(e) . . . .” Huff v.
Int’l Longshoremen’s Ass’n, Local 24, 799 F.2d 1087, 1090 (5th Cir. 1986) (quoting Harcon
Barge Co., Inc. v. D & G Boat Rentals, Inc., 784 F.2d 665, 667 (5th Cir. 1986)). The Fifth
Circuit has explained that Rule 59(e) “serves the narrow purpose of allowing a party to correct
manifest errors of law or fact or to present newly discovered evidence and is not the proper
vehicle for rehashing evidence, legal theories, or arguments that could have been offered or
raised before the entry of judgment.” Knight v. Kellog Brown & Root Inc., 333 F. App’x 1, 8 (5th
Cir. 2009) (citation omitted). Mississippi’s district courts have recognized three potential
grounds for granting a Rule 59(e) motion: “(1) an intervening change in controlling law, (2) the
availability of new evidence not previously available, or (3) the need to correct a clear error of
law or prevent manifest injustice.” Williamson Pounders Architects PC v. Tunica Cnty., Miss.,
597 F. Supp. 2d 766, 767 (N.D. Miss. 2008) (citing Atkins v. Marathon LeTourneau Co., 130
F.R.D. 625, 626 (S.D. Miss. 1990)). Plaintiff seeks relief on the second and third grounds.
As allegedly “new evidence,” Plaintiff has attached three documents generated
subsequent to the Court’s grant of summary judgment: Plaintiff’s own affidavit in which he
reasserts many of the facts argued in his summary judgment response, as well as affidavits of
two previous employees of Defendant, Wavie Davenport, who avers he was “forced into
retirement” and Butch Edmonson, who claims to have been “retired” because of his age.1
The Fifth Circuit has held that “an unexcused failure to present evidence available at the
time of summary judgment provides a valid basis for denying a subsequent motion for
reconsideration.” Templet v. HydroChem Inc., 367 F.3d 473, 479-80 (5th Cir. 2004) (citing Russ
v. Int’l Paper Co., 943 F.2d 589, 593 (5th Cir. 1991) (emphasis added)). In cases where the
underlying facts supporting evidence are “well within the [plaintiffs’] knowledge prior to the
district court’s entry of judgment[,]” such evidence is not considered by the Fifth Circuit to be
“newly discovered” evidence that would justify relief from judgment. In re Rodriguez, 695 F.3d
360, 372 (5th Cir. 2012) (citing Templet, 367 F.3d at 479).
In his own affidavit, Plaintiff has alleged no facts that he would not have known prior to
summary judgment. Likewise, Plaintiff previously identified Davenport and Edmonson in his
Also attached to Plaintiff’s motion are seven exhibits that were provided to Plaintiff during discovery but not
included in either party’s summary judgment papers. Plaintiff argues that the failure to include these exhibits, as
well as additional alleged failures, are attributable to his former attorney and that Plaintiff should not be penalized
for the actions of counsel. Yet, “inadvertent mistake of counsel[, g]ross carelessness, ignorance of rules or ignorance
of law” on the part of the client or his counsel “do not justify granting a Rule 59(e) or 60(b) motion.” Gonzalez v.
State Fair of Texas, 235 F.3d 1339, at *2 (5th Cir. 2000) (quoting Edward H. Bohlin Co. v. The Banning Co., Inc., 6
F.3d 350, 356 (5th Cir. 1993)).
interrogatory responses, indicating that they were “made to retire.” Thus, the Court finds that
Plaintiff was aware of the underlying facts supporting these three documents and has failed to
identify any newly discovered evidence.
Moreover, even if Davenport’s and Edmonson’s affidavits were considered as new
evidence, the Fifth Circuit has instructed that “[a] motion to reconsider based on an alleged
discovery of new evidence should be granted only if [among other things,] . . . the facts
discovered are of such a nature that they would probably change the outcome . . . .” Johnson v.
Diversicare Afton Oaks, LLC, 597 F.3d 673, 677 (5th Cir. 2010).
Plaintiff contends that the affidavits of Davenport and Edmonson demonstrate that
Defendant “has a routine practice of age discrimination.” The Fifth Circuit has held that
anecdotal testimony of age discrimination, including witnesses’ subjective beliefs that they had
been terminated on account of age, is insufficient to demonstrate a pattern or practice of
discrimination “unless those employees are similarly situated to the plaintiff.” Wyvill v. United
Cos. Life Ins., 212 F.3d 296, 302 (5th Cir. 2000) (citing Mooney v. Aramco Servs. Co., 54 F.3d
1207, 1220 (5th Cir. 1995)). That Court has further explained that “testimony from former
employees who had different supervisors than the plaintiff, who worked in different parts of the
employer’s company, or whose terminations were removed in time from the plaintiff’s
termination cannot be probative of whether age was a determinative factor in the plaintiff’s
Neither Davenport nor Edmonson have stated the positions in which they were formerly
employed or the identities of their supervisors or persons involved in the decisions to terminate
them. Indeed, those involved in Ruth’s termination have disavowed any personal knowledge as
to why the tenures of Davenport and Edmonson were ended. Additionally, both were allegedly
forced into retirement on November 30, 2006, nearly six years prior to Ruth’s termination. For
these reasons, the evidence submitted does not demonstrate that Ruth was similarly situated to
either Davenport or Edmonson. Thus, were their affidavits considered new evidence, the Court
finds they would not change the outcome and would not provide a basis for granting Plaintiff’s
Plaintiff additionally argues that relief pursuant to Rule 59 is necessary to correct errors
in the Court’s ruling or to prevent manifest injustice. As more fully set forth in the Court’s
memorandum opinion on summary judgment, Defendant proffered two separate nondiscriminatory justifications for terminating Plaintiff—(1) that he engaged in activities exceeding
his physical work restrictions while away on leave and (2) that he improperly received disability
overpayments. The Court held that Plaintiff failed to produce evidence demonstrating that
Defendant’s first articulated justification was merely pretext, such that Plaintiff had not created a
genuine issue of material fact of age discrimination. It was, for that reason, unnecessary for the
Court to address whether pretext existed as to Defendant’s second proffered justification. See
Jackson v. Watkins, 619 F.3d 463, 467 (5th Cir. 2010) (The Fifth Circuit has “long recognized
that to satisfy step three of the McDonnell Douglas framework, a plaintiff must put forward
evidence rebutting each of the nondiscriminatory reasons the employer articulates.”) (citation
and quotation omitted).
In the pending motion, Plaintiff attempts to demonstrate pretext by reasserting many
previously made arguments and by raising new arguments, focusing primarily on the proffered
reason that the Court chose not to address in its memorandum on summary judgment. As stated
above, however, a Rule 59(e) motion “is not the proper vehicle for rehashing evidence, legal
theories, or arguments that could have been offered or raised before the entry of judgment.”
Knight, 333 F. App’x at 8 (emphasis added). The Court accordingly finds Plaintiff’s previously
urged and newly offered arguments to be unavailing at this late stage.
The Fifth Circuit has explained: “[r]econsideration of a judgment after its entry is an
extraordinary remedy that should be used sparingly.” Rodgriguez, 695 F.3d at 371. For the
foregoing reasons, the Court declines to employ such an extraordinary remedy here. Plaintiff’s
Motion to Alter the Judgment or for Reconsideration, or Alternatively to Grant Relief from
Judgment  is, therefore, DENIED.
SO ORDERED, this, the 12th day of June, 2015.
/s/ Sharion Aycock
UNITED STATES DISTRICT JUDGE
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