GETHERS v. PNC BANK

Filing 89

MEMORANDUM OPINION indicating that, for the reasons more fully stated within, Plaintiff Jacksons Motion for Reconsideration and Motion to Conduct Discovery, (Docket Nos. 74, 80 at Civil Action No. 15-230), will be denied. Plaintiff Gethers's Motion for Reconsideration and Motion to Conduct Discovery, (Docket Nos. 67 , 75 at Civil Action No. 15-1559), will likewise be denied. Appropriate Orders follow. Signed by Judge Nora Barry Fischer on 1/23/18. (jg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ROSALIND JACKSON,

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)
Plaintiff,
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Civil Action No. 15-230
v.
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)
Judge Nora Barry Fischer
PNC BANK,
)
)
Defendant.
)
______________________________________________________________________________
JALAINE GETHERS,
Plaintiff,
v.
PNC BANK,
Defendant.

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)
)
)
)
)
)
)
)

Civil Action No. 15-1559
Judge Nora Barry Fischer

MEMORANDUM OPINION
I.

INTRODUCTION
This matter involves two separate actions wherein Plaintiff Rosalind Jackson (“Jackson”)

and Plaintiff Jalaine Gethers (“Gethers”) have alleged claims of employment discrimination
against Defendant PNC Bank (“PNC”). Presently before the Court is Jackson’s Motion for
Reconsideration and Motion to Conduct Discovery. (Docket Nos. 74, 80 at Civil Action No. 15230). Also before the Court is Gethers’s Motion for Reconsideration and Motion to Conduct
Discovery. (Docket Nos. 67, 75 at Civil Action No. 15-1559). PNC opposes all of the pending
motions, which have been exhaustively briefed and argued at a motion hearing before the Court.
After careful consideration of the parties’ positions, and for the following reasons, Jackson’s and

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Gethers’s respective motions will be DENIED.
II.

FACTUAL BACKGROUND
The facts of these matters are set forth extensively in this Court’s previous memorandum

opinions. See Jackson v. PNC Bank, No. 15-CV-230, 2016 U.S. Dist. LEXIS 174044, at *5-13
(W.D. Pa. Dec. 16, 2016); Gethers v. PNC Bank, No. 15-CV-1559, 2017 U.S. Dist. LEXIS 70510,
at *6-21 (W.D. Pa. May 9, 2017). In Jackson, the Court granted, in part, and denied, in part, PNC’s
Motion for Summary Judgment on December 16, 2016.

2016 U.S. Dist. LEXIS 174044.

Specifically, the Court granted PNC’s motion for summary judgment as to Jackson’s claim for
unlawful termination and denied the motion as to Jackson’s failure-to-promote claim. Id. at *1427. After the parties filed their pretrial statements, the Court held a status conference on January
17, 2017, at which time trial was set for July 24, 2017. (Docket Nos. 62, 63, 64, 65 at Civil Action
No. 15-230). In Gethers, the Court granted PNC’s motion for summary judgment and denied
Gethers’s motion for summary judgment on May 9, 2017. 2017 U.S. Dist. LEXIS 70510, at *2245. That same day, the Court entered judgment in favor of PNC and against Gethers, and closed
the case. (Docket No. 65 at Civil Action No. 15-1559).
On May 16, 2017, Attorneys Edward A. Olds and Jaimie L. George entered their
appearances on behalf of Jackson and filed a motion to continue the trial. (Docket Nos. 66, 67, 68
at Civil Action No. 15-230). After PNC filed objections to Jackson’s motion to continue, the Court
held a motion hearing on May 22, 2017. (Docket Nos. 70, 72 at Civil Action No. 15-230). The
Court granted Jackson’s motion to continue and vacated its pretrial order until further order of
Court. (Docket Nos. 72, 73 at Civil Action No. 15-230). On June 6, 2017, Attorneys Olds and
George entered their appearances on behalf of Gethers. (Docket Nos. 66, 69 at Civil Action No.

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15-1559).
III.

PROCEDURAL HISTORY
Jackson filed a Motion for Reconsideration of the Court’s order granting PNC’s motion for

summary judgment as to her claim for unlawful termination, along with a supporting brief and
exhibits, on June 13, 2017. (Docket Nos. 74, 75 at Civil Action No. 15-230). PNC filed a response
in opposition on July 7, 2017. (Docket No. 76 at Civil Action No. 15-230). On July 17, 2017,
Jackson filed a reply, to which PNC filed a sur-reply on July 27, 2017. (Docket Nos. 79, 82 at
Civil Action No. 15-230). On July 17, 2017, Jackson filed a Motion to Conduct Discovery, to
which PNC responded in opposition on August 1, 2017. (Docket Nos. 80, 83 at Civil Action No.
15-230).
Gethers filed a Motion for Reconsideration of the Court’s order granting PNC’s motion for
summary judgment, along with a supporting brief and exhibits, on June 6, 2017. (Docket Nos. 67,
68 at Civil Action No. 15-1559). PNC filed a response in opposition on July 7, 2017. (Docket
No. 71 at Civil Action No. 15-1559). On July 17, 2017, Gethers filed a reply, to which PNC filed
a sur-reply on July 27, 2017. (Docket Nos. 74, 77 at Civil Action No. 15-1559). On July 17, 2017,
Jackson filed a Motion to Conduct Discovery, to which PNC responded in opposition on August
1, 2017. (Docket Nos. 75, 78 at Civil Action No. 15-1559).
The Court heard oral argument on August 8, 2017. (Docket Nos. 84, 87 at Civil Action
No. 15-230; Docket Nos. 79, 82 at Civil Action No. 15-1559). The parties agreed to advise the
Court by August 21, 2017, with respect to whether they requested additional briefing. (Docket
No. 84 at Civil Action No. 15-230; Docket No. 79 at Civil Action No. 15-1559). After PNC
requested an opportunity to file supplemental briefing, the Court entered a Scheduling Order.

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(Docket Nos. 85, 86 at Civil Action No. 15-230; Docket Nos. 80, 81 at Civil Action No. 15-1559).
The parties filed their respective supplemental briefing on September 22, 2017, along with their
respective responses to same on October 6, 2017. (Docket Nos. 90, 91, 92, 93 at Civil Action No.
15-230; Docket Nos. 85, 86, 87, 88 at Civil Action No. 15-1559).
IV.

LEGAL STANDARD
A. Pro Se Status
As discussed above, the Court notes at the outset that Jackson and Gethers proceeded pro

se throughout the summary judgment proceedings. As such, the Court liberally construed their
pleadings and other submissions. See, e.g., N’Jai v. United States EPA, No. 13-CV-1212, 2014
U.S. Dist. LEXIS 162950, at *3 (W.D. Pa. Nov. 20, 2014); Jackson v. Davis, No. 13-CV-1717,
2014 U.S. Dist. LEXIS 95600, at *26 (W.D. Pa. July 14, 2014). Despite Jackson’s and Gethers’s
status as pro se litigants, they were still required to comply with this Court’s rules, policies, and
procedures. N’Jai, 2014 U.S. Dist. LEXIS 162950, at *3-4; N’Jai v. Floyd, No. 07-CV-1506,
2009 U.S. Dist. LEXIS 45130, at *71 (W.D. Pa. May 29, 2009) (“[A] pro se litigant is not excused
from compliance with the Federal Rules of Civil Procedure or this Court’s Local Rules”). The
Court cautioned Jackson and Gethers of same throughout the litigation of their respective cases.
(See Docket Nos. 12, 14, 43, 46 at Civil Action No. 15-230; Docket Nos. 2, 17 at Civil Action
No. 15-1559).
B. Motions for Reconsideration
Summary judgment on Jackson’s claim for unlawful termination was entered on December
16, 2016. Jackson, 2016 U.S. Dist. LEXIS 174044. Thus, the standard applicable to Jackson’s
motion is articulated in Federal Rule of Civil Procedure 60(b) as follows:

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(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion
and just terms, the court may relieve a party or its legal representative from a final
judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not
have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on
an earlier judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable; or
(6) any other reason that justifies relief.
FED. R. CIV. P. 60(b). “A motion under Rule 60(b) must be made within a reasonable time—and
for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date
of the proceeding.” FED. R. CIV. P. 60(c)(1). A “movant under Rule 60(b) bears a heavy burden,”
and “[w]e view Rule 60(b) motions as extraordinary relief which should be granted only where
extraordinary justifying circumstances are present.” Bohus v. Beloff, 950 F.2d 919, 930 (3d Cir.
1991) (internal quotations omitted). Relief under Rule 60(b) relief should “be reserved for those
cases of injustices which . . . are deemed sufficiently gross to demand a departure from rigid
adherence to the doctrine of res judicata.” United States v. Beggerly, 524 U.S. 38, 46 (1998)
(internal quotations omitted).
As to Gethers, final judgment on her claims was entered on May 9, 2017. Gethers, 2017
U.S. Dist. LEXIS 70510. Gethers filed her Motion for Reconsideration on June 6, 2017, twentyeight days after final judgment was entered. (Docket No. 67 at Civil Action No. 15-1559). Thus,
Federal Rule of Civil Procedure 59(e), which provides that “[a] motion to alter or amend a
judgment must be filed no later than 28 days after the entry of the judgment,” applies. FED. R.
CIV. P. 59(e). “Motions for reconsideration under Rule 59(e) of the Federal Rules of Civil

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Procedure are granted sparingly ‘[b]ecause federal courts have a strong interest in finality of
judgments.’” Jacobs v. Bayha, No. 07-CV-237, 2011 U.S. Dist. LEXIS 27926, at *4 (W.D. Pa.
Mar. 18, 2011) (quoting Cont’l Cas. Co. v. Diversified Indus., 884 F. Supp. 937, 943 (E.D. Pa.
1995)). “Because of the interest in finality, at least at the district court level . . . the parties are not
free to relitigate issues the court has already decided.” Williams v. City of Pittsburgh, 32 F. Supp.
2d 236, 238 (W.D. Pa. 1998). The purpose of a motion for reconsideration is “‘to correct manifest
errors of law or fact or to present newly discovered evidence.’” Max’s Seafood Cafe by Lou-Ann,
Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999) (quoting Harsco Corp. v. Zlotnicki, 779 F.2d
906, 909 (3d Cir. 1985)). Accordingly, a court may grant a motion for reconsideration only if the
moving party shows: (1) an intervening change in the controlling law; (2) the availability of new
evidence which was not available when the court issued its order; or (3) the need to correct a clear
error of law or fact or to prevent a manifest injustice. Id.
C. Motions to Reopen Discovery
It is well settled that a district court may modify a scheduling order upon a showing of
“good cause.” FED. R. CIV. P. 16(b)(4). This authority extends to requests to reopen discovery.
In re Chocolate Confectionary Antitrust Litig., No. 1:08-MDL-1935, 2013 U.S. Dist. LEXIS
104819, at *39 (M.D. Pa. July 25, 2013). The decision whether to reopen discovery is committed
to the sound discretion of the district court, which is broad. LeBoom v. Lancaster Jewish Cmty.
Ass’n, 503 F.3d 217, 235 (3d Cir. 2007); Sempier v. Johnson & Higgins, 45 F.3d 724, 734 (3d Cir.
1995). This Court’s Practices and Procedures reinforce the Court’s discretion with respect to
discovery, including the time period for discovery. See Practices and Procedures of Judge Nora
Barry Fischer, Sept. 19, 2017, III.B.1., http://www.pawd.uscourts.gov/Documents/Judge/

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fischer_pp.pdf (“Extensions of time for discovery are permitted for cause shown, provided that the
case has been advanced by counsel during the initial period of discovery.”). For purposes of Rule
16(b)(4), the existence of “good cause” turns on a variety of factors, including: (1) whether the
moving party’s lack of diligence or the opposing party’s conduct contributed to the delay; (2)
potential prejudice caused by the discovery extension; and (3) any other factors the trial court, in
its discretion, determines to be relevant. See 6A Federal Practice and Procedure, § 15222.2, 31316.
V.

DISCUSSION
A. Motions for Reconsideration
As noted above, the Court granted PNC’s motion for summary judgment as to Jackson’s

claim for unlawful termination and denied the motion as to Jackson’s failure-to-promote claim.
Jackson, 2016 U.S. Dist. LEXIS 174044, at *14-27. In granting summary judgment as to
Jackson’s claim for unlawful termination, the Court held that Jackson had failed to establish a
prima facie case because her termination did not occur in a manner raising an inference of unlawful
discrimination. Id. at *15-21. Specifically, the Court found that the record evidence showed that
PNC terminated Jackson and Gethers simultaneously for circumventing PNC’s Automated
Clearing House (“ACH”) procedures at least nine times. Id. at *17. The Court determined that
“[t]he fact that two African-American employees were terminated for the same misdeed does not
raise an inference of unlawful discrimination,” as “[n]o record evidence show[ed] that PNC treated
non-African-American employees who evaded the ACH transaction rules differently than it treated
Jackson and Gethers.” Id. at *17-18. Rather, the record evidence demonstrated that “PNC
terminated non-African-American employees for infractions similar to what Jackson and Gethers

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did” and that “PNC terminates employees for code of ethics violations regardless of race.” Id. at
*20-21.
With respect to Gethers’s case, the Court likewise concluded that PNC had a legitimate
non-discriminatory reason for terminating Gethers and Jackson. Gethers, 2017 U.S. Dist. LEXIS
70510, at *23-33. Specifically, the Court found that Gethers had failed to establish a prima facie
case for unlawful termination because “none of her arguments or the evidence she cites indicates
that PNC treated a similarly situated employee better than it treated her because of race.” Id. at
*32-33. Based upon the record evidence and Gethers’s and Jackson’s admissions, which showed
that they violated PNC’s code of ethics, the Court held that PNC had a legitimate nondiscriminatory reason for terminating them. Id. at *33. Similarly, the Court determined that
Gethers had failed to establish a prima facie case for retaliation because there was no causal
relationship between her filing complaints, her termination, and PNC’s alleged resistance to her
receipt of unemployment benefits and because Gethers’s contention that her supervisor was “very
cold” to her did not constitute a materially adverse employment action. Id. at *38-42.1

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In reaching its decisions as to both cases involving Jackson and Gethers, the Court studied the complete record,
including the full deposition transcripts of Gethers and Jackson, (Docket Nos. 74-4, 74-5 at Civil Action No. 15-230),
and conducted its own independent research. Further, the Court’s decisions are consistent with other employeediscipline cases within the Third Circuit. To this end, the Third Circuit recently upheld the District Court’s decision
to grant summary judgment in a case where the plaintiff, who was an African-American woman, was fired after the
defendant determined that she had permitted a customer to open an account by submitting an expired driver’s license.
Hood v. Citizens Bank of Pa., 694 F. App’x 80 (3d Cir. 2017). The Third Circuit affirmed the District Court’s
conclusion that the plaintiff had failed to provide evidence that her termination was pretextual because none of the
employees to whom she pointed as comparators were similarly situated. Id. at 82; see also Hood v. Citizens Bank of
Pa., No. 14-CV-867, 2016 U.S. Dist. LEXIS 68842, at *24-29 (W.D. Pa. May 24, 2016) (explaining why the plaintiff
had failed to identify proper comparators).
Similarly, this District consistently grants summary judgment in cases where the plaintiff has failed to identify
similarly situated comparators. In Moore v. PNC Financial Services Group, No. 13-CV-1659, 2015 U.S. Dist. LEXIS
110936 (W.D. Pa. Aug. 21, 2015), like the instant cases initiated by a pro se plaintiff, the District Court concluded
that the plaintiff had not established a prima facie case because he did not adduce any evidence with respect to the
existence of preferentially treated comparators. Id. at *12-14; see also Anderson v. UPS, No. 13-CV-135, 2015 U.S.
Dist. LEXIS 33550 (W.D. Pa. Mar. 18, 2015) (granting summary judgment where the plaintiff failed to identify proper

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1. Jackson’s Motion for Reconsideration
Jackson seeks reconsideration of the Court’s dismissal of her claim for unlawful
termination on the bases that:

(1) there was no evidence that her actions resulted in an

inappropriate personal gain or advantage; (2) there was evidence that permission was unnecessary
to perform reversal requests; (3) there was no evidence that a policy required employees to visit a
retail branch to initiate a return transaction; and (4) PNC’s misrepresentation of the policies and
rules governing reversal transactions suggests a causal nexus between her race and her dismissal.
(Docket No. 75 at Civil Action No. 15-230).2
In her supplemental brief, Jackson argues that she is entitled to reconsideration based upon
“new evidence that was initially provided to Gethers by PNC as part of Rule 26 disclosures.
(Docket No. 90 at 1; see also Docket Nos. 90-1, 90-2). Specifically, Jackson asserts that a
handwritten note “contains smoking gun evidence casting significant doubt on the veracity of the
reasons PNC is now advancing to explain its decision to fire Gethers and Jackson.” (Docket No.
90 at 2). In support thereof, Jackson points to PNC Senior Employee Relations Investigator Jean
Olenak’s note stating:
Amy told you not to process the return. In discussions w/ business and legal it has
been determined that you assisted Roz in defrauding PNC by keying in ACH
reversals that were not legitimate disputes. Therefore, your employment is
terminated effective today.
(Id. at 3 (emphasis in original); see also Docket No. 90-1 at 8). Jackson contends that Olenak’s

comparators); Boyd v. Citizens Bank of Pa., Inc., 2014 U.S. Dist. LEXIS 70210 (W.D. Pa. May 22, 2014) (same);
Epps v. First Energy Nuclear Operating Co., No. 11-CV-1462, 2013 U.S. Dist. LEXIS 41140 (W.D. Pa. Mar. 25,
2013) (same).
2

Unless otherwise specified, all citations to docket entries in this section relate to Civil Action No. 15-230.

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note establishes that Olenak acted upon false information because PNC’s counsel disavowed any
suggestion that she or Gethers had engaged in fraud. (Docket No. 90 at 4). She maintains that she
had a right under the National Automated Clearing House Association’s (“NACHA”) procedures
to reverse the transactions. (Id. at 5). Jackson insists that because there was no evidence that the
reversals were not legitimate, PNC “argued a newly concocted legitimate reason for its action”
with respect to the Code of Ethics. (Id. at 6-8 (emphasis in original)). She also claims that PNC
did not disclose its position “about the centrality of the Reg E Group investigation to fire [her] and
Gethers,” as it failed to disclose the policies, rules, and procedures that govern the group under
Federal Rule of Civil Procedure 26. (Id. at 8-12). In addressing her second exhibit, Jackson also
argues that PNC failed to produce the complete investigative file because the exhibit is a summary
that appears to be incomplete. (Id. at 15; see also Docket No. 90-2).
In this Court’s estimation, Jackson has not raised any valid arguments establishing that she
is entitled to relief under Rule 60(b). Indeed, it appears to the Court that only subsections (1), (2),
(3), and (6) could apply to Jackson’s motion.3 See FED. R. CIV. P. 60(b)(1), (2), (3), (6). The Court
will first address Rule 60(b)(2) and (3), as Jackson primarily argues that she has discovered new
evidence which PNC fraudulently withheld during discovery. As to Rule 60(b)(2), it is well settled
that it must be shown that the new evidence “(1) [is] material and not merely cumulative, (2) could
not have been discovered before trial through the exercise of reasonable diligence and (3) would
probably have changed the outcome of the trial.” Coregis Ins. Co. v. Baratta & Fenerty, Ltd., 264
F.3d 302, 309 (3d Cir. 2001).

Jackson broadly states that she is entitled to reconsideration “under Rule 60,” without providing reference to any
subsections of the rule. (Docket No. 90 at 1).
3

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Here, Jackson has admitted that the exhibits attached to her supplemental brief were
provided as part of PNC’s Rule 26 disclosures. (Docket No. 90).4 Hence, they do not constitute
“new evidence,” as same “‘means evidence that a party could not earlier submit to the court
because that evidence was not previously available.’” Blystone v. Horn, 664 F.3d 397, 415-16 (3d
Cir. 2011) (quoting Howard Hess Dental Labs. Inc. v. Dentsply Int’l, Inc., 602 F.3d 237, 252 (3d
Cir. 2010)); see also Schock v. Baker, 663 F. App’x 248, 252 (3d Cir. 2016) (explaining that new
evidence is evidence that was not previously available, “not merely evidence submitted following
an adverse court ruling”); Hernandez v. United States, 608 F. App’x 105, 109 (3d Cir. 2015)
(holding that the plaintiff’s “supplemental evidence” did not constitute “new evidence” because
“all that he submitted . . . was information that was available at the summary judgment stage”).
This Court has consistently followed the well-settled law of the Third Circuit holding that
information that was available and previously known does not constitute “new evidence” under
Rule 60(b)(2). See, e.g., Volkay v. Court of Common Pleas, No. 14-CV-193, 2016 U.S. Dist.
LEXIS 89353, at *10 (W.D. Pa. July 11, 2016) (holding that the plaintiff’s evidence, which
consisted of deposition excerpts and attachments thereto, were “readily available” when he filed
his initial motion); Houser v. Folino, 2016 U.S. Dist. LEXIS 51526, at *3 (W.D. Pa. Apr. 18, 2016)
(denying the plaintiff’s request for relief under Rule 60(b)(2) because the “newly discovered
evidence” was not “information that was available but unknown at the time of trial”); Pondexter
v. Allegheny County Hous. Auth., No. 04-CV-536, 2007 U.S. Dist. LEXIS 78525, at *4-5 (W.D.
Pa. Oct. 23, 2007) (denying the plaintiff’s request for relief under Rule 60(b)(2) because he “has

Moreover, in addressing PNC’s argument that Jackson has not presented new evidence that was unavailable at the
time of summary judgment, Jackson concedes that “[i]n the strictest, literal sense, this might be true.” (Id. at 12).
4

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not, in fact, offered any newly discovered evidence, but rather has provided only citation to case
law and bald allegations”); Jackson v. City of Pittsburgh, 2011 U.S. Dist. LEXIS 87421, at *113
(W.D. Pa. Aug. 8, 2011) (determining that the plaintiff had failed to meet his “heavy burden” under
Rule 60(b)(2) because he provided only cumulative evidence rather than new evidence).
Further, in applying the factors set forth in Coregis Insurance Co., the Court finds that
Jackson’s exhibits: (1) are not material; (2) could have been, and were, discovered previously;
and (3) would not have changed the outcome of the Court’s decision. Coregis Ins. Co., 264 F.3d
at 309. To this end, Jackson baldly asserts that Olenak’s handwritten note proves that PNC
changed the reasoning for Jackson’s and Gethers’s termination. Indeed, Jackson concedes that she
does not know when or why the note was prepared but merely asserts that it “appears to disclose
why Olenak acted to fire Gethers and Jackson.” (Docket No. 90 at 3 (emphasis added)). Similarly,
Jackson argues that PNC did not produce the complete investigative file because the summary
provided “appears to be incomplete on its face.” (Id. at 15 (emphasis added)). Such unsupported
speculation is not material to the Court’s previous summary judgement decision. See, e.g.,
Robertson v. Allied Signal, Inc., 914 F.2d 360, 382 n.12 (3d Cir. 1990) (“[A]n inference based
upon a speculation or conjecture does not create a material factual dispute sufficient to defeat entry
of summary judgment.”). Not only are Jackson’s exhibits immaterial and were previously
available, but they also would not have changed the outcome of the Court’s decision because, as
discussed above, Jackson failed to establish a prima facie claim for unlawful termination, and
Gethers failed to establish prima facie claims for unlawful termination and retaliation.
With respect to Rule 60(b)(3), it is well settled that “‘[t]o prevail, the movant must establish
that the adverse party engaged in fraud or other misconduct, and that this conduct prevented the

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moving party from fully and fairly presenting his case. . . . Failure to disclose or produce evidence
requested in discovery can constitute Rule 60(b)(3) misconduct.’” LG Elecs. U.S.A., Inc. v.
Whirlpool Corp., 798 F. Supp. 2d 541, 568 (D. Del. 2011) (quoting Stridiron v. Stridiron, 698 F.2d
204, 207 (3d Cir. 1983)). Claims under Rule 60(b)(3) must be proven by clear and convincing
evidence. Id. As previously explained, Jackson has admitted that the exhibits attached to her
supplemental brief were provided as part of PNC’s Rule 26 disclosures. (Docket No. 90). Thus,
there is simply no evidence, let alone clear and convincing evidence, that PNC engaged in any
fraud or other misconduct. See, e.g., Hatchigian v. Int’l Bhd. of Elec. Workers Local 98 Health &
Welfare Fund, 610 F. App’x 142, 143-44 (3d Cir. 2015) (affirming the District Court and
explaining that “[e]ven assuming that [the plaintiff] did not receive the letter, this fact alone does
not constitute fraud”); Jackson, 2011 U.S. Dist. LEXIS 87421, at *115-16 (holding that even if
documents were wrongfully withheld, which the defendants disputed, the plaintiff had a full and
fair opportunity to present his theories); Talley v. City of Atl. City, No. 04-CV-1146, 2007 U.S.
Dist. LEXIS 49486, at *8-9 (D.N.J. July 10, 2007) (denying motion for reconsideration because
“[c]laims of fraud must be plead with factual specificity” and “blanket, conclusory allegations . . .
with no factual support, do not suffice”).5

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To the extent Jackson argues that she was hampered in discovery, it is well settled that a Rule 60(b) motion should
not be granted merely because a litigant “did not draw on the Court’s power to recover the discovered information.”
In re Flonase Antitrust Litig., Nos. 16-1124 and 16-3019, 2017 U.S. App. LEXIS 26385, at *20 (3d Cir. Dec. 22,
2017). To this end, neither Jackson nor Gethers sought the Court’s intervention as to deficiencies in disclosures or
discovery responses. Although Jackson and Gethers did not mount depositions, both had the opportunity to do same,
as well as to serve requests for admissions and production and to file motions to compel. The Court granted one
discovery extension to Jackson and three discovery extensions to Gethers. (See Docket No. 45 at Civil Action No.
15-230; Docket Nos. 32, 35, 38 at Civil Action No. 15-1559). As this Court has recognized, pro se litigants are
afforded a certain degree of leniency. Boyd v. Citizens Bank of Pa., Inc., No. 12-CV-332, 2014 U.S. Dist. LEXIS
70210, at *6 (W.D. Pa. May 22, 2014). However, “the Court is not required to craft arguments, sift through the
summary judgment record, and/or locate documents that preclude summary judgment; rather, that is the Plaintiff's
burden.” Id. at *57 n.12.

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As to Rule 60(b)(1), Jackson has not offered any support demonstrating that the Court’s
decision was the result of mistake, inadvertence, surprise, or excusable neglect. FED. R. CIV. P.
60(b)(1). Rather, Jackson contends that she is entitled to reconsideration merely because her
counsel has presented “information and argument that was literally not available to the [C]ourt
before counsel entered their appearance.” (Docket No. 90 at 12 (emphasis in original)). The Court
finds meritless Jackson’s argument for several reasons. First, it is well settled that “[t]he purpose
of a motion for reconsideration is to correct manifest errors of law or fact or to present newly
discovered evidence” and that, therefore, “[a] motion for reconsideration is not an opportunity for
a party to present previously available evidence or new arguments.” Dep’t of Envtl. Prot. v. Beazer
East, Inc., No. 09-CV-1123, 2011 U.S. Dist. LEXIS 110572, at *6 (W.D. Pa. Sept. 28, 2011)
(quoting Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985); Federico v. Charterers Mut.
Assurance Ass’n, LTD., 158 F. Supp.2d 565, 577-78 (E.D. Pa. 2001)); see also Glielmi v. Raymond
Corp., No. 09-CV-5734, 2012 U.S. Dist. LEXIS 156548, at *10 (D.N.J. Nov. 1, 2012) (denying
motion for reconsideration and explaining that the defendant should have raised the issue “prior to
the Court’s decision at summary judgment . . . and not in response to an adverse ruling”) (internal

Additionally, to the extent that Jackson argues that NACHA never came to the fore in discovery, both parties had the
opportunity to request additional discovery during the discovery period and even throughout summary judgment
proceedings. See FED. R. CIV. P. 56; Shelton v. Bledsoe, 775 F.3d 554, 566 (3d Cir. 2015) (noting that in responding
to a motion for summary judgment, the non-moving party may file a motion if he or she believes that additional
discovery is necessary). Further, PNC raised both NACHA and Reg E in depositions of Jackson and Gethers. (Docket
Nos. 74-4 at 18-22 (wherein Jackson was questioned with respect to Reg E and NACHA); 74-5 at 33-36 (wherein
Gethers was questioned with respect to Reg E) at Civil Action No. 15-230). More importantly, NACHA and Reg E
are irrelevant because Jackson’s and Gethers’s respective terminations occurred as a result of their violation of PNC’s
code of ethics. Jackson and Gethers both reviewed the code of ethics, understood that they had to abide by it, and
received annual training on it. Gethers, 2017 U.S. Dist. LEXIS 70510, at *13; Jackson, 2016 U.S. Dist. LEXIS
174044, at *9. Given the breadth of the code of ethics, coupled with PNC’s determination that Jackson and Gethers
had violated same, PNC did not engage in progressive corrective action. Gethers, 2017 U.S. Dist. LEXIS 70510, at
*29, 32 n.7; Jackson, 2016 U.S. Dist. LEXIS 174044, at *21. Further, Jackson and Gethers still have not pointed to
any valid comparators under this newly advanced theory.

14

quotations omitted).
Second, Jackson was pro se during the summary judgment proceedings, as civil litigants
“have no statutory right to appointed counsel.” Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993).
Mindful that “[p]leadings and other submissions by a pro se litigant are subject to liberal
construction,” N’Jai v. United States EPA, No. 13-CV-1212, 2014 U.S. Dist. LEXIS 75712, *16
(W.D. Pa. June 3, 2014), the Court permitted Jackson to submit multiple filings in opposition to
PNC’s motion for summary judgment, heard her oral argument, and invited her to file
supplemental briefing and/or evidence after the hearing, which she declined. (See Docket Nos.
53, 57, 58).6 Thus, Jackson had ample opportunity to oppose PNC’s motion for summary
judgment. The fact that Jackson has now obtained counsel, who has presented new arguments to
the Court, does not entitle her to relief under Rule 60(b)(1). Indeed, “Rule 60(b)(1) has never been
held to mean that a pro se litigant is entitled to have a judgment reopened merely because his
claims could have been more artfully asserted by counsel.” United States v. Lowery, Nos. 99-CR267, 01-CV-1310, 2004 U.S. Dist. LEXIS 12212, at *4-5 (E.D. Pa. June 23, 2004) (rejecting the
defense counsel’s suggestion that “because Defendant was pro se when he initially filed his 2255
Petition, he should be afforded the opportunity to relitigate his claims and add new claims with the
benefit of counsel’s assistance”). Like the District Court in Lowery, this Court “is unwilling to
sanction the chaos that would result if pro se status alone provided a basis for reopening
judgments.” Id. at *5. Third, as explained above, counsel’s arguments do not persuade the Court
that PNC was not entitled to summary judgment on Jackson’s claim for unlawful termination.

The Court similarly permitted Gethers to submit multiple filings in opposition to PNC’s motion for summary
judgment, heard her oral argument, and invited her to file supplemental briefing and/or evidence after the hearing.
(See Docket Nos. 47, 48, 51, 52, 53, 57, 60 at Civil Action No. 15-1559).
6

15

Finally, with respect to Rule 60(b)(6), a litigant seeking relief “must show that
‘extraordinary circumstances’ exist, which requires a showing of ‘an extreme and unexpected
hardship.’” Johnson v. United States, 375 F. App’x 273, 275 (3d Cir. 2010) (quoting Budget
Blinds, Inc. v. White, 536 F.3d 244, 255 (3d Cir. 2008)). The Third Circuit Court of Appeals has
reasoned that “extraordinary circumstances rarely exist when a party seeks relief from a judgment
that resulted from a party’s deliberate choices.” White, 536 F.3d at 255.
There are simply no extraordinary circumstances here. While the Court appreciates that
Jackson was pro se during the summary judgment stage of these proceedings, but has now obtained
counsel, such circumstances do not warrant relief under Rule 60(b)(6). To this end, the Court
agrees with the District Court’s holding in Williams v. Brann, No. 02-CV-940, 2006 U.S. Dist.
LEXIS 58578 (E.D. Wis. Aug. 18, 2006). In Williams, the plaintiff, who was pro se at the time
the Court decided summary judgment, obtained counsel and then sought reconsideration of the
District Court’s decision granting the defendant’s motion for summary judgment. 2006 U.S. Dist.
LEXIS 58578, at *3. That District Court affirmed the defendant’s position that granting the
plaintiff relief under Rule 60(b)(6) “would provide for a rule of law allowing each pro se plaintiff
who ultimately obtains counsel to have all prior adverse orders reconsidered.” Id. at *5. The
District Court concluded that “[i]t would be inequitable to allow a plaintiff to use one’s pro se
status, without more, to constitute exceptional circumstances under Rule 60(b)(6).” Id. at *6; see
also Jones v. Frazesn, No. 07-CV-2758, 2010 U.S. Dist. LEXIS 96909 (E.D. Cal. Sept. 3, 2010)
(noting that the pro se plaintiff had obtained counsel and denying motion for relief under Rule
60(b) because he had failed to show entitlement to any relief); Kennedy v. Sec’y of HHS, 99 Fed.
Cl. 535, 548 (Fed. Cl. Apr. 28, 2011) (“Nor have courts afforded relief under Rule 60(b)(6) where

16

it was claimed that a litigant should be relieved of a judgment because he or she suffered adverse
consequences from a decision to proceed pro se.”). Thus, the Court concludes that Jackson is not
entitled to relief under any of the provisions of Rule 60(b), and the Court is not otherwise persuaded
that she would meet the standard governing motions for reconsideration as set forth above.
Accordingly, the Court will exercise its sound discretion to deny Jackson’s Motion for
Reconsideration.
2. Gethers’s Motion for Reconsideration
As discussed above, Rule 59(e) applies to Gethers’s motion because she filed same within
twenty-eight days after the entry of judgment. FED. R. CIV. P. 59(e). Gethers raises arguments
that do not establish any intervening change in the controlling law; any new evidence which was
not available when the Court issued its order; or any need to correct a clear error of law or fact or
to prevent a manifest injustice. Max’s Seafood Cafe, 176 F.3d at 677. Instead, Gethers seeks only
to “relitigate issues the court has already decided.” Williams, 32 F. Supp. 2d at 238. Indeed, all
of the issues that Gethers raises in her motion were known and available to her at the time of
summary judgment proceedings. See, e.g., Piotrowski v. Federman & Phelan, LLP, No. 05-CV1455, 2005 U.S. Dist. LEXIS 39999, at *5-6 (M.D. Pa. Dec. 21, 2005) (finding that the plaintiffs,
who filed their complaint pro se before obtaining counsel, were not entitled to relief under Rule
59(e) because they “[sought] only to reargue a [motion to dismiss] that the court has already
disposed of”); see also Jones, 2010 U.S. Dist. LEXIS 96909 (E.D. Cal. Sept. 3, 2010) (noting that
the pro se plaintiff had obtained counsel and denying motion for relief under Rule 59(e) because
he had failed to show entitlement to any relief). Thus, the Court finds that Gethers is not entitled
to relief under Rule 59(e).

17

To the extent that Gethers seeks to apply Rule 60(b), for the reasons discussed above, the
Court concludes that she is not entitled to relief. See supra Section V.A.1. Gethers’s previous
status as a pro se litigant does not warrant relitigating the summary judgment stage of these
proceedings. See, e.g., Williams, 2006 U.S. Dist. LEXIS 58578, at *3-6; Jones, 2010 U.S. Dist.
LEXIS 96909; Kennedy v. Sec’y of HHS, 99 Fed. Cl. at 548. Thus, the Court will also exercise its
sound discretion to deny Gethers’s Motion for Reconsideration. 7
B. Motions to Reopen Discovery
In its discretion, the Court finds that there is no reason to warrant the reopening of
discovery in Jackson’s or Gethers’s respective cases. As discussed above, “good cause” to reopen
discovery turns on a variety of factors, including: (1) whether the moving party’s lack of diligence

In their supplemental briefing, the parties dispute whether Jackson’s and Gethers’s declarations should be rejected
as “sham affidavits” and whether the declarations submitted by PNC at summary judgment were proper. (Docket
Nos. 90, 91, 92, 93 at Civil Action No. 15-230; Docket Nos. 85, 86, 87, 88 at Civil Action No. 15-1559). Under the
sham affidavit doctrine, “a court will disregard an affidavit that is inconsistent with an affiant’s prior deposition
testimony . . . unless the party relying on the affidavit in opposition to the motion can present a legitimate reason for
the discrepancies between the deposition and the affidavit.” Smith v. Johnson and Johnson, 593 F.3d 280, 285 n.3
(3d Cir. 2010); see also Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806-07 (1999) (“[A] party cannot create
a genuine issue of fact sufficient to survive summary judgment simply by contradicting his or her own previous sworn
statement (by, say, filing a later affidavit that flatly contradicts that party’s earlier sworn deposition) without
explaining the contradiction or attempting to resolve the disparity.”); Jiminez v. All Am. Rathskeller, Inc., 503 F.3d
247, 251 (3d Cir. 2007) (“[A] party may not create a material issue of fact to defeat summary judgment by filing an
affidavit disputing his or her own sworn testimony without demonstrating a plausible explanation for the conflict.”)
(internal quotations omitted).
7

Here, the Court rejects as untimely Jackson’s and Gethers’s argument that the declarations filed by PNC were
improper, as same were submitted at summary judgment. See FED. R. CIV. P. 56(c)(1)(A) (stating that “[a] party
asserting that a fact cannot be or is genuinely disputed must support the assertion by . . . citing to particular parts of
materials in the record, including . . . affidavits or declarations”). Further, contrary to the parties’ arguments, the Court
finds that the declarations filed by PNC were not conclusory. As to Jackson’s and Gethers’s declarations, the Court
agrees with PNC’s contention that they contain statements that are inconsistent with their deposition testimony. (See
Docket No. 91 at 5-10 at Civil Action No. 15-230; Docket No. 86 at 5-10 at Civil Action No. 15-1559). Hence, the
Court did not heavily weigh the declarations but, nonetheless, considered them given counsel’s argument that Jackson
and Gethers as lay people may not have understood all the ramifications of the evidence in the case. (See Docket Nos.
90 at 21, 93 at 12-13 at Civil Action No. 15-230; Docket Nos. 85 at 21, 88 at 12-13 at Civil Action No. 15-1559).
That said, Jackson’s and Gethers’s declarations do not affect the Court’s decision because, for the reasons extensively
outlined above, the parties are not entitled to reconsideration.

18

or the opposing party’s conduct contributed to the delay; (2) potential prejudice caused by the
discovery extension; and (3) any other factors the trial court, in its discretion, determines to be
relevant. See 6A Federal Practice and Procedure, § 15222.2, 313-16. Here, Jackson and Gethers
have failed to demonstrate that good cause exists to reopen discovery.
With respect to diligence, to establish good cause, the party seeking an extension should
show that more diligent pursuit was impossible. Pritchard v. Dow Agro Sciences, 255 F.R.D. 164,
175 (W.D. Pa. 2009) (citing Hewlett v. Davis, 844 F.2d 109, 113 (3d Cir. 1988) (“The Court of
Appeals will not interfere with the discretion of the district court by overturning a discovery order
absent a demonstration that the court’s actions made it impossible to obtain crucial evidence, and
implicit in such a showing is proof that more diligent discovery was impossible.”)). It is well
settled that “[r]etaining new counsel, by itself, does not establish good cause.” Trask v. Olin Corp.,
298 F.R.D. 244, 268 (W.D. Pa. Mar. 4, 2014). Here, Jackson and Gethers initially chose to
represent themselves. That alone does not establish that more diligent pursuit was impossible.
See, e.g., N’Jai v. Bentz, No. 13-CV-1212, 2016 U.S. Dist. LEXIS 133917, at *9 (W.D. Pa. Sept.
29, 2016) (noting that “[p]ro se status does not excuse a party’s failure to depose witnesses” and
denying motion to reopen discovery).
Further, prejudice would result if the Court granted Jackson’s and Gethers’s motions. As
to Jackson, discovery was initially set to close on March 31, 2016. (Docket No. 35 at Civil Action
No. 15-230). The Court granted one extension, and discovery ended on May 4, 2016. (Docket
Nos. 44, 45 at Civil Action No. 15-230). After ruling upon PNC’s motion for summary judgment,
the Court set a trial date as to Jackson’s claim for failure to promote, namely, July 24, 2017.
(Docket No. 65 at Civil Action No. 15-230). Given that both sides had sufficient time to complete

19

discovery, summary judgment had been decided, and trial was previously set seven months ago,
the Court finds that prejudice would result if discovery were to be reopened.8 See, e.g., Gadley v.
Ellis, No. 13-CV-17, 2015 U.S. Dist. LEXIS 63914 (W.D. Pa. May 14, 2015) (denying motion to
reopen discovery after summary judgment had been decided); Rose v. City of Allentown, No. 02CV-3842, 2004 U.S. Dist. LEXIS 2248, at *7 (E.D. Pa. Feb. 10, 2004) (holding that it would be
unfairly prejudicial to the defendants to permit the pro se plaintiff to reopen discovery where the
defendants’ motion for summary judgment had already been filed); see also Ickes v. Grassmeyer,
No. 13-CV-208, 2016 U.S. Dist. LEXIS 103873, at *11-13 (W.D. Pa. Aug. 8, 2016) (determining
that it would be “inappropriate” to allow a pro se plaintiff to conduct additional discovery after the
deadlines for summary judgment had passed); Perez v. Great Wolf Lodge of the Poconos LLC, No.
12-CV-1322, 2017 U.S. Dist. LEXIS 19251, at *19 (M.D. Pa. Feb. 9, 2017) (“[T]his case has been
set for trial since August 2016 and the Court is not willing to delay trial.”); Maynard v. Sugarloaf
Twp., No. 06-CV-845, 2011 U.S. Dist. LEXIS 54679, at *12 (M.D. Pa. May 23, 2011)
(“Reopening discovery when trial is imminent would disrupt the orderly and efficient trial of this
already protracted litigation.”). Cf. Trask, 298 F.R.D. at 270 (determining that the reopening of
discovery would not result in prejudice because the case had not yet been set for trial).
As to Gethers, discovery was initially set to close on July 29, 2016. (Docket No. 24 at
Civil Action No. 15-1559). The Court granted the parties additional time to complete discovery
on three occasions, with discovery ultimately concluding on November 30, 2016. (Docket Nos.
32, 35, 38 at Civil Action No. 15-1559). In its final order, the Court explicitly stated that “[n]o

8

Indeed, the parties had already filed their pretrial statements, with Jackson filing her pretrial statement on December
28, 2016, and PNC filing its pretrial statement on January 13, 2017. (See Docket Nos. 62, 63 at Civil Action No. 15230).

20

further discovery extensions will be granted.” (Docket No. 38 at Civil Action No. 15-1559).
Gethers now seeks to reopen discovery over eight months after discovery ended and after the Court
ruled upon the parties’ motions for summary judgment. Similar to Jackson, the Court finds that
reopening discovery would result in prejudice, given the authority cited above.
As a final matter, the Court recognizes its duty under Rule 1 to expeditiously bring these
case to their respective conclusions and finds that reopening discovery runs counter to these
principles. FED. R. CIV. P. 1; Carnegie Mellon Univ. v. Marvell Tech. Group, Ltd., No. 09-CV290, 2013 U.S. Dist. LEXIS 27221, at *9 (W.D. Pa. Feb. 28, 2013). In its discretion, the Court
does not find any other factors to be relevant. See 6A Federal Practice and Procedure, § 15222.2,
313-16. Accordingly, the Court will deny Jackson’s and Gethers’s motions to reopen discovery.
VI.

CONCLUSION
Based on the foregoing, Jackson’s Motion for Reconsideration and Motion to Conduct

Discovery, (Docket Nos. 74, 80 at Civil Action No. 15-230), will be DENIED. Gethers’s Motion
for Reconsideration and Motion to Conduct Discovery, (Docket Nos. 67, 75 at Civil Action No.
15-1559), will likewise be DENIED. Appropriate Orders follow.
s/ Nora Barry Fischer
Nora Barry Fischer
United States District Judge
cc/ecf: All counsel of record.

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