Ramirez v. L-3 Communications Vertex Aerospace, LLC

Filing 50

ORDER denying 37 Motion for Reconsideration. Signed by District Judge Carlton W. Reeves on 9/13/2012. (AC)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
DAVID RAMIREZ

PLAINTIFF

v.

Cause No. 3:11-cv-297-CWR-LRA

L-3 COMMUNICATIONS VERTEX AEROSPACE, LLC

DEFENDANT

ORDER
Before the Court is David Ramirez’s motion for reconsideration. Docket No. 37. L-3
Communications has responded, Docket No. 39, Ramirez has replied, Docket Nos. 39 and 41, and
L-3 Communications has filed a sur-response, Docket No. 44. The motion will be denied.
I.

Background and Present Arguments
On December 7, 2011, this Court granted L-3 Communications’ motion for summary

judgment on Ramirez’s federal employment discrimination claims. Docket No. 33. Ramirez had
failed to file suit within 90 days of receiving the EEOC’s first right-to-sue letter, as required by Title
VII. Id. at 1 and 3. The fact that he filed suit within 90 days of receiving a second right-to-sue letter
from the EEOC was insufficient to save the claims. Id. at 1. There was compelling evidence that
the EEOC’s first letter was properly delivered to Ramirez’s address but not acted upon within the
time allotted by statute. Id. at 5.
Ramirez’s motion for reconsideration reurges his prior argument that an intra-EEOC transfer
of his discrimination charge permitted him to rely upon the second right-to-sue letter. Docket No.
37, at 2. He also presents a new argument, stating in an affidavit that he was out of the country for
the entire 90-day period after the first right-to-sue letter was issued. Id.
L-3 Communications responds that Ramirez’s arguments and new affidavit do not meet the
standard for reconsideration. Docket No. 38. “No effort whatsoever has been made to satisfy the
governing standard of review – namely, a demonstration of manifest error of law or fact or of newly
discovered evidence.” Id. at 2 (citation omitted). L-3 Communications denies that the first right-tosue letter had to find its way overseas to Ramirez; mailing it to his home was sufficient. Id. at 3.
In rebuttal, Ramirez asserts that he is entitled to reconsideration based on additional
documents from the EEOC, including an investigative log and a letter from the EEOC indicating that
his case was transferred to another office. Docket No. 39.

Ramirez’s rebuttal brief was filed on March 3, 2012. On April 16, he docketed a new
“attachment” to his original and rebuttal briefs: an April 11, 2012 letter from the EEOC explaining
what happened with the internal processing of his case. Docket Nos. 41-42.1 The letter states that
Ramirez’s first charge of discrimination should have been administratively terminated by the first
EEOC office once it was transferred to another office. Id. at 1. Instead, it continued to be processed
by the first office, which ultimately dismissed the charge for Ramirez’s repeated failures to respond.
Id. When the first charge was dismissed, no copy was sent to counsel because that office did not
know that Ramirez was represented. Id. The second, transferred charge of discrimination was
terminated on request of counsel and appropriately sent to counsel. Id. at 2. The EEOC formally
apologized for its oversight. Id. Ramirez did not present any argument alongside the letter.
L-3 Communications replied to briefly assert caselaw holding that EEOC administrative
mixups do “not relieve a plaintiff from filing suit within 90 days from delivery of the first
right-to-sue notice.” Docket No. 44, at 1. It reiterated that Ramirez has not made an equitable
tolling argument. Id. at 2.
II.

Standard of Review
Motions to reconsider are treated as motions to alter or amend a judgment under Federal Rule

of Civil Procedure 59(e). Nationwide Mut. Fire Ins. Co. v. Pham, 193 F.R.D. 493, 494 (S.D. Miss.
2000); Lopez v. City of Biloxi, Miss., No. 1:03-cv-122, 2006 WL 2255149, *1 (S.D. Miss. Aug. 6,
2006).
“A motion to alter or amend judgment must clearly establish either a manifest error of law
or fact or must present newly discovered evidence. These motions cannot be used to raise arguments
which could, and should, have been made before the judgment issued.” Ross v. Marshall, 426 F.3d
745, 763 (5th Cir. 2005) (quotation marks and citation omitted). The Fifth Circuit “has held that a
59(e) motion to reconsider should not be granted unless: (1) the facts discovered are of such a nature
that they would probably change the outcome; (2) the facts alleged are actually newly discovered
and could not have been discovered earlier by proper diligence; and (3) the facts are not merely
cumulative or impeaching.” Infusion Res., Inc. v. Minimed, Inc., 351 F.3d 688, 696-97 (5th Cir.

1

These docket entries are identical.

2

2003) (citation omitted).2
III.

Discussion
Ramirez’s arguments, affidavit, and attachment do not meet the high standard required to

alter or amend a judgment. He has presented no law or fact suggesting a manifest error. The fact
that Ramirez was out of the country while his 90-day window to sue slipped away could have been
brought to the Court’s attention earlier, and even then it is not clear it would have changed the
outcome. The EEOC’s April 2012 letter similarly does not tilt the scales in Ramirez’s favor, in part
because he has never sought equitable tolling – even assuming he would qualify for that relief under
controlling caselaw. See Granger v. Aaron’s, Inc., 636 F.3d 708, 713 (5th Cir. 2011).
IV.

Conclusion
The motion for reconsideration is denied.
SO ORDERED, this the 13th day of September, 2012.
s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE

2

On the evening of Saturday, September 8, 2012, the plaintiff sent an email to the chambers of each
District Judge and Magistrate Judge who serve this district. The email suggests that the plaintiff may not be aware
of the work his counsel is doing on his behalf since entering an appearance. Because the plaintiff is represented by
counsel, the Court will forward a copy of the communication to his counsel, who may determine what, if any, steps
counsel should take to assure his client that he has been represented since entry of appearance.
The Court will add that the plaintiff’s present counsel is not responsible for the unfavorable outcome of the
motion for reconsideration. The motion was fully briefed and submitted to the Court weeks before new counsel
entered his appearance.

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