WEATHERS v. UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL

Filing 47

MEMORANDUM ORDER signed by JUDGE THOMAS D. SCHROEDER on 01/15/2014; that Weathers' motion to amend judgment pursuant to Federal Rule of Civil Procedure 59(e) (Doc. 39 ) is DENIED. (Garland, Leah)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ANDREA C. WEATHERS,
Plaintiff,
v.
UNIVERSITY OF NORTH CAROLINA
AT CHAPEL HILL; HERBERT B.
PETERSON, in his individual
and official capacity;
JONATHAN KOTCH, in
his individual and official
capacity; BARBARA K. RIMER, in
her individual and official
capacity; EDWARD M. FOSTER, in
his individual and official
capacity; and SANDRA L.
MARTIN, in her individual and
official capacity,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

1:12cv1059

MEMORANDUM ORDER
THOMAS D. SCHROEDER, District Judge.
Before the court is a motion to amend judgment filed by
Plaintiff

Dr.

Andrea

C.

Weathers.

(Doc.

39.)

Pursuant

to

Federal Rule of Civil Procedure 59(e), she seeks reconsideration
of the court’s Order dated September 30, 2013, which granted
Defendants’ motion to dismiss and dismissed Weathers’ action.
(Doc. 37 (opinion and order); Doc. 38 (judgment).)

For the

reasons set forth below, the motion will be denied.
I.

BACKGROUND
This action arises out of a prior lawsuit adjudicated in

this court.

Weathers v. Univ. of N.C. at Chapel Hill, No.

1:08CV847, 2010 WL 4791809 (M.D.N.C. Nov. 18, 2010) (hereinafter
“Weathers I”).

In Weathers I, Weathers sued the University of

North Carolina at Chapel Hill (“UNC”) and several administrative
heads

and

faculty

members

in

UNC’s

School

of

Public

Health

(collectively, “Defendants”), alleging employment discrimination
in violation of 42 U.S.C. § 1981 and § 1983, as well as Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq.
Id. at

*1.

Defendants

Weathers,
failed

to

who

is

promote

African-American,

her

and

award

alleged

her

tenure

that
as

a

professor in the School of Public Health because of her race.
Id. at *1-10.

UNC denied her tenure in 2007; she filed her

complaint in 2008.

Id. at *10.

Weathers I includes a detailed

review of the facts in the light most favorable to Weathers.
Id. at *1-10.
Because
discrimination,
McDonnell

Weathers
the

Douglas

offered

court

no

analyzed

framework.

Id.

direct
her

at

evidence

claims

*12

Douglas Corp. v. Green, 411 U.S. 792 (1973)).

(citing

under

of
the

McDonnell

The court found

that Weathers failed to establish three of the four elements of
a prima facie case of discrimination: She had established (1)
membership in a protected group, but she had not established (2)
that she applied for promotion and tenure, (3) that she was
qualified for promotion and tenure, or (4) that she was rejected
2

under

circumstances

discrimination.
that,

even

had

Weathers

produced

nondiscriminatory
her

rise

to

Id. at *12-18.

assuming

Defendants

including

giving

reasons

extremely

had

an

inference

made

a

of

refusing

limited

unlawful

Furthermore, the court found

evidence
for

of

to

prima

facie

their
grant

publication

legitimate,
her

record

failure to submit a timely promotion application.

case,

tenure,
and

her

Ultimately,

Weathers failed to present evidence that race was a factor in
the denial of her promotion and tenure.

Id. at *19-20.

The court granted Defendants’ motion for summary judgment
and dismissed the action.

Id. at *21.

The Fourth Circuit

affirmed the judgment on September 29, 2011.

Weathers v. Univ.

of N.C. at Chapel Hill, 447 F. App’x 508 (4th Cir. 2011).
On

September

24,

2012,

Weathers

commenced

the

instant

action against the same defendants, alleging that Defendants had
committed a fraud on the court in Weathers I and seeking to have
the

judgment

set

Procedure 60(d).

aside

pursuant

(Doc. 1.)

to

Federal

Rule

of

Civil

According to Weathers, she found

documents among her files proving that Defendants misrepresented
to the court that a set of departmental review procedures from
1996 was not in use, when in fact it was.

(Id.)

The court granted Defendants’ motion to dismiss.

(Doc.

37); Weathers v. Univ. of N.C. at Chapel Hill, No. 1:12CV1059,
2013 WL 5462300 (M.D.N.C. Sept. 30, 2013) (hereinafter “Weathers
3

II”).

In dismissing the case, the court noted that not all

fraud is “fraud on the court” and found that, even accepting the
allegations

of

fraud

as

true,

Weathers

had

not

met

“demanding standard” required to set a judgment aside.
II at *2-3.

the

Weathers

Furthermore, the court found that refusing to alter

Weathers I worked no “grave miscarriage of justice.”
On

the

contrary,

even

if

Weathers

had

been

able

Id. at *3.
to

present

evidence that the departmental review procedures from 1996 were
in effect at the time of her tenure application, it would not
have changed the judgment in Weathers I.

Id. at *3-4.

After

all, Weathers I found deficiencies in three of four elements of
Weathers’ prima facie case; at most, the evidence in Weathers II
would have established one additional element (the fourth).
at *4.

Id.

Weathers’ failure to provide evidence that she applied

for and was qualified for tenure (the second and third elements,
respectively) would have doomed her claims, regardless of the
proffered evidence in Weathers II.

Id.

In the present motion, Weathers seeks reconsideration of
Weathers II pursuant to Federal Rule of Civil Procedure 59(e).
She asserts that she has newly available evidence as to her
qualifications

for

tenure:

two

affidavits

from

professors

at

universities other than UNC (Docs. 39-2, 39-3) and an affidavit
from

Weathers

motion.

herself

(Doc.

39-1).

(Doc. 44.)
4

Defendants

oppose

the

II.

ANALYSIS
“A

Rule

situations:

59(e)
(1)

motion

to

may

only

accommodate

be

an

granted

in

intervening

three

change

in

controlling law; (2) to account for new evidence not available
at trial; or (3) to correct a clear error of law or prevent
manifest injustice.”

Mayfield v. Nat’l Ass’n for Stock Car Auto

Racing, Inc., 674 F.3d 369, 378 (4th Cir. 2012) (quoting Zinkand
v. Brown, 478 F.3d 634, 637 (4th Cir. 2007)) (internal quotation
marks

omitted).

Such

a

motion

allows

a

district

court

to

correct its own errors, but it does not serve as a vehicle for a
party to raise new arguments or legal theories that could have
been raised before the judgment.

See Pac. Ins. Co. v. Am. Nat.

Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998).

Rule 59(e) is

an “extraordinary remedy,” to be used only “sparingly.”
Chiefly,

Weathers

asserts

that

the

motion

Id.

is

merited

because of new evidence (Docs. 39-1, 39-2, 39-3), but she also
alleges errors of law (Doc. 41 at 5).
change in controlling law.

She does not assert any

Although her motion is couched as a

motion to amend Weathers II, what she actually seeks to amend is
Weathers

I.

qualifications

Her
for

“new

evidence”

tenure

–

relates

an

issue

Weathers I, but not in Weathers II.

exclusively

before

the

to

court

her
in

She does not claim to have

any new evidence as to Defendants’ alleged fraud, which was the
claim at issue in Weathers II.
5

However, to the extent that

Weathers seeks to establish a “grave miscarriage of justice”
warranting
court

will

(citing

an

alteration

consider

United

her

States

v.

in

the

present

judgment
motion.

Beggerly,

524

of

Weathers

Weathers
U.S.

38,

I,

the

II

at

*3

47

(1998)

(“[Under Rule 60,] an independent action should be available
only to prevent a grave miscarriage of justice.”)).
In the Fourth Circuit, the standard for relief on the basis
of newly discovered evidence is the same under Rule 59 and Rule
60. 1

Boryan v. United States, 884 F.2d 767, 771 (4th Cir. 1989).

The party must demonstrate that
(1) the evidence is newly discovered since the
judgment was entered; (2) due diligence on the part of
the movant to discover the new evidence has been
exercised; (3) the evidence is not merely cumulative
or impeaching; (4) the evidence is material; and (5)
the evidence is such that is likely to produce a new
outcome if the case were retried, or is such that
would require the judgment to be amended.
Id. (quoting Taylor v. Texgas Corp., 831 F.2d 255, 259 (11th
Cir. 1987) (citations omitted)).

This “high” standard is not

concerned with whether the evidence was previously available to
the court; it asks whether it was previously available to the

1

Weathers’ reliance on Fifth Circuit cases for the proposition that
the standard under Rule 59 is less stringent than it is under Rule 60
is misplaced. (Doc. 41 at 2.) Whatever the law in the Fifth Circuit
may be, the Fourth Circuit and its district courts have held
repeatedly that the standard for newly discovered evidence is the same
under Rule 59 and Rule 60.
See, e.g., U.S. Fid. & Guar. Co. v.
Lawrenson, 334 F.2d 464, 465 n.2 (4th Cir. 1964); France v. Zapata
Haynie Corp., 946 F.2d 885 (4th Cir. 1991) (per curiam); Bagnal v.
Foremost Ins. Grp., Civ. No. 2:09-CV-1474-DCN, 2011 WL 1235555, at *4
(D.S.C. Mar. 30, 2011).

6

moving party.

Quillin v. C.B. Fleet Holding Co., Inc., 328 F.

App’x 195, 203 (4th Cir. 2009).
In support of her motion, Weathers asserts that the two
“expert”

affidavits

(Docs.

39-2,

39-3)

were

not

previously

available to her because of the “incredibly close nature of the
academic field of public health universities and the reluctance
of individuals to come forward to challenge institutions like
the Defendant UNC because of fears of reprisal.”
4.)

(Doc. 41 at 3-

She states that “the Expert Affiants were motivated to

testify only once this cause of action was dismissed because
they,

along

with

other

potential

witnesses,

did

not

want

to

jeopardize their careers unless absolutely necessary to preserve
the rights of Dr. Weathers.”
action

to

which

these

(Doc. 46 at 4.)

affidavits

relate

November 18, 2010, not September 30, 2013.
statements

do

not

explain

why

she

was

Yet, the cause of
was

dismissed

See Weathers I.
unable

to

obtain

on
Her
the

affidavits before the court issued Weathers II, when Weathers’
qualifications had been at issue since the start of the Weathers
I litigation in 2008.
As to the third affidavit (Doc. 39-1), it is Weathers’ own.
She provides no explanation for why the court should consider
her own affidavit “newly discovered.”
Even if the court considered the “expert” affidavits as
“newly discovered evidence,” they would not require the court to
7

amend

the

matter.
Dr.

judgment

in

Weathers

II,

or

Weathers

I

for

that

The affidavits from Dr. Hector Balcazar (Doc. 39-2) and

Patricia

O’Campo

qualifications

for

(Doc.

39-3)

promotion;

speak

Weathers

only

still

to

Weathers’

lacks

evidence

demonstrating that she actually applied for promotion.

As the

court found previously in Weathers I, the evidence shows that
Weathers was notified of the application deadline eleven months
before her promotion package was due, that she refused to supply
a

required

list

of

names

for

references

despite

repeated

requests and repeated deadline extensions from the chair of her
department, and that she never submitted a promotion package of
any

kind

on

the

deadline

date.

See

Weathers

I

at

*7-9.

Instead, she submitted an incomplete promotion package over five
months late through her attorney.
Nothing

in

Dr.

Balcazar’s

Id. at *10.
or

Dr.

O’Campo’s

affidavits

alters the lack of evidence as to this element of Weathers’
prima facie case.

Because Weathers would not have been able to

make a prima facie case even if she had submitted the evidence
while Weathers I was pending, the evidence does not require this
court to alter the judgment.
There

has

been

no

grave

Weathers II remains unchanged:

miscarriage

of

justice

requiring

Weathers I to be set aside.
To the extent Weathers seeks reconsideration on the basis
of errors of law in Weathers II (Doc. 41 at 5), the court has
8

reviewed the judgment and finds no clear error of law to correct
and no manifest injustice to prevent.
III. CONCLUSION
For the reasons stated, the court finds that Weathers has
not demonstrated that Weathers II should be reconsidered, either
on the basis of new evidence or errors of law.
IT

IS

THEREFORE

ORDERED

that

Weathers’

motion

to

amend

judgment pursuant to Federal Rule of Civil Procedure 59(e) (Doc.
39) is DENIED.

/s/
Thomas D. Schroeder
United States District Judge
January 15, 2014

9