Stovall v. Settle et al

Filing 43

ORDER denying 29 Motion to Set Aside Judgment. Signed by Judge S. Thomas Anderson on 4/23/12. (Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
______________________________________________________________________________
CYNTHIA STOVALL,

)
)
Plaintiff,
)
)
v.
)
No. 10-2388-STA-dkv
)
DEWUN SETTLE; WALTER EVANS; )
KENNY ARMSTRONG; and the
)
SHELBY COUNTY GOVERNMENT, )
)
Defendants.
)
______________________________________________________________________________
ORDER DENYING PLAINTIFF’S REQUEST TO WITHDRAW THE ORDER
GRANTING SUMMARY JUDGMENT AND TO REOPEN DISCOVERY
______________________________________________________________________________
Before the Court is Plaintiff’s Request to Withdraw the Order Granting Summary
Judgment and to Reopen Discovery (“Plaintiff’s Request”) (D.E. # 29), filed on December 7,
2011. Defendant filed a Response (D.E. # 34) on December 20, 2011. The Court held a hearing
on January 5, 2012, and after the hearing, Plaintiff filed a Response to Defendant’s Motion for
Summary Judgment (“Plaintiff’s Amended Request”) (D.E. # 39-41) on February 5 and 8, 2012.
Defendant filed a Response to Plaintiff’s Amended Request (D.E. # 42) on February 24, 2012.
For the following reasons, Plaintiff’s Request and Amended Request are DENIED.
BACKGROUND
Because the background of this case was explained in the Court’s Order Granting
Defendant’s Motion for Summary Judgment (“the Order”), the Court will not address the case’s
evolution. (Order, D.E. # 26, at 1-2.) In the Order, the Court granted summary judgment for

1

Defendant on Plaintiff’s ADEA claim because she had not satisfied the fourth element of her
prima facie case: causation. (Id. at 12.) Because Plaintiff was terminated as part of a reductionin-force (“RIF”), she was required to provide additional direct, circumstantial, or statistical
evidence indicating that she was singled out for impermissible reasons. (Id.) The Court held
that Plaintiff’s mere belief that she was discriminated against because of her age did not meet
this requirement. (Id.) Even if Plaintiff had made out a prima facie case, the Court found that
Plaintiff would not be able to prove pretext. (Id.)
As for Plaintiff’s Title VII retaliation claim under the Participation Clause, the Court held
that Plaintiff did not satisfy the first element of the prima facie case because she had not
participated in any protected activity prior to her termination. (Id. at 17-18.) Moreover, she
could not satisfy the causation element of a prima facie case because she was terminated nearly
one year after she filed her grievance letters and had not provided other evidence of
discrimination. (Id. at 18.) The Court also noted that, even if Plaintiff could make out a prima
facie case, she would be unable to demonstrate pretext. (Id. at 19.) As to her Title VII
retaliation claim under the Opposition Clause, the Court found that Plaintiff could not make out
the causation element of her prima facie case due to her deposition testimony indicating a lack of
racial discrimination and her failure to produce additional evidence of retaliatory conduct. (Id. at
20-21.) Plaintiff’s attempt to demonstrate pretext would fail for the same reasons as her
Participation Clause pretext claim. (Id. at 21.)
The Court will now address the case’s development following the Order. Plaintiff filed a
Request which indicated that the Court had denied her request for a trial continuance in a “wild
opinion” and appeared to insinuate that the Court reached the decision reflected in the Order on

2

the basis of political affiliation. (D.E. # 29, at 1.) On December 19, 2011, Plaintiff filed a
proper Notice of Appeal. (D.E. # 30-33.) The Court held a hearing on Plaintiff’s Request on
January 5, 2012. At the hearing, Counsel for Plaintiff, Richard Fields (“Fields”), noted that he
did not mean to personally attack the Court or accuse the Court of impropriety.1 The Court then
directed Fields, several times, to file a proper Motion to Reconsider which complied with the
Federal Rules of Civil Procedure and the Local Rules. The Court required Fields to cite to legal
authority—which had been absent from all of Fields’ prior filings—and to leave all irrelevant
information out of the Motion.
Fields timely filed this Motion on February 5 and 8, 2012, but it did not conform to the
requirements set forth by the Court. Rather than filing a Motion to Reconsider, Plaintiff
responded to Defendant’s Motion for Summary Judgment in her Amended Request. Because the
Court has already ruled on Defendant’s Motion for Summary Judgment, Plaintiff’s Amended
Request is untimely and contrary to the Court’s instructions. However, the Court will interpret it
as a Motion to Reconsider so that the information raised in it will be properly before the Court
for its consideration.
STANDARD OF REVIEW
Motion to Reconsider
While the “Federal Rules of Civil Procedure do not explicitly address motions for
reconsideration of interlocutory orders, . . . [d]istrict courts have authority both under common

1

To the extent that Fields’ Request implied that the Court had ruled based on
personal differences or conflicts with Fields, the Court dispelled that notion at the hearing. The
Court noted that Fields had appeared before it only two to three times in the Court’s eight years
on the federal bench, and Fields had not previously quarreled with its rulings. Moreover, the
Court has no other relationship or interaction with Fields.
3

law and Rule 54(b) to reconsider interlocutory orders and to reopen any part of a case before
entry of final judgment.”2 The Sixth Circuit has recognized that “[t]raditionally, courts will find
justification for reconsidering interlocutory orders when there is (1) an intervening change of
controlling law; (2) new evidence available; or (3) a need to correct a clear error or prevent
manifest injustice.”3
Moreover, the Western District of Tennessee has enacted Local Rule 7.3 (“L.R. 7.3”),
which governs Motions for Revision of Interlocutory Orders. L.R. 7.3 identifies Rule 54(b) as
the relevant procedural rule under which to bring a Motion for Reconsideration, and it also notes
that “[m]otions to reconsider interlocutory orders are not otherwise permitted.”4 In addition to
the Sixth Circuit’s requirements, the Western District of Tennessee also requires Motions for
Reconsideration to specifically show one of three elements:
(1) a material difference in fact or law from that which was presented to the Court
before entry of the interlocutory order for which revision is sought, and that in the
exercise of reasonable diligence the party applying for revision did not know such
fact or law at the time of the interlocutory order; or (2) the occurrence of new
material facts or a change of law occurring after the time of such order; or (3) a
manifest failure by the Court to consider material facts or dispositive legal
arguments that were presented to the Court before such interlocutory order.5
Notably, L.R. 7.3 prohibits parties’ Motions for Reconsideration from “repeat[ing] any oral or
written argument made by the movant in support of or in opposition to the interlocutory order

2

Rodriguez v. Tenn. Laborers Health & Welfare Fund, 89 F. App’x 949, 959 (6th
Cir. 2004) (quotation omitted).
3

Id. (citing Reich v. Hall Holding Co., 990 F. Supp. 955, 965 (N.D. Ohio 1998)).

4

L.R. 7.3(a).

5

L.R. 7.3(b).
4

that the party seeks to have revised.”6
Motion to Amend the Complaint
Under Federal Rule of Civil Procedure 15(a)(2), a pleading may be amended “only by
leave of court . . . and leave shall be freely given when justice so requires.”7 A motion to amend
a complaint should not be denied unless there is evidence of undue delay, bad faith, undue
prejudice to the nonmovant, or futility.8 The Sixth Circuit has found undue delay and prejudice
when a plaintiff moved to amend his complaint seven months after defendants filed their
dispositive motions.9
ANALYSIS
Plaintiff’s Amended Request
The Local Rules for the Western District of Tennessee provide that acceptable motions in
civil cases are only “those . . . accompanied by a supporting memorandum of facts and law (so
identified).”10 Local rules exist to guide parties in their identification of specific facts,11 and the
Western District of Tennessee employs such a rule for such a purpose.12 Moreover, at summary

6

L.R. 7.3(c).

7

Fed. R. Civ. P. 15(a)(2).

8

Ziegler v. IBP Hog Market, Inc., 249 F.3d 509, 519 (6th Cir. 2001).

9

Murphy v. Grenier, 406 F. App’x 972, 976-77 (6th Cir. 2011).

10

Local Rule 7.2(a)(1).

11

See Southwick v. Russell Stover Candies, Inc., No. 05-0050, 2007 WL 776496, at
*9 (M.D. Tenn. Mar. 9, 2007) (“This notice can be adequately accomplished through a local
court rule or a pretrial order.”).
12

See Local Rule 7.2(a)(1).
5

judgment, “[a] district court is not required to speculate on which portion of the record [a] party
relies, nor is it obligated to wade through and search the entire record for some specific facts that
might support [a] party’s claim.”13 Thus, a court is not required to pour through documents
when a party does not direct the court’s attention to any specific statements or passages in
support of its motion. While the Sixth Circuit does not require the designation of specific page
numbers, parties are required to “point out the location” of the statements “with enough
specificity that the district court can readily identify the facts upon which the . . . party relies.”14
Moreover, at summary judgment, a party cannot create a factual issue by filing an
affidavit, after a motion for summary judgment has been made and certainly not after a motion
for summary judgment has been ruled on, which contradicts his or her earlier deposition
testimony.15 Additionally, the Local Rules require a non-moving party to respond to each fact
set forth by the movant; each fact disputed by the non-moving party requires a supporting
citation to a specific portion of the record.16
Here, the Court notes that although Plaintiff’s Amended Request is a marked
improvement from her attorney’s other attempts at complying with the Local Rules, Plaintiff’s
Counsel has missed the mark yet again. Plaintiff’s Amended Request merely “adopted the
cases” cited by Defendant in its Motion for Summary Judgment because their recitation of the

13

InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989).

14

Anderson v. Vanderbilt Univ., No. 09-0095, 2010 WL 2196599, at *9 (M.D.
Tenn. May 27, 2010).
15

Reid v. Sears, Roebuck & Co., 790 F.2d 453, 460 (6th Cir. 1986).

16

Local Rule 56.1(b).
6

law was “absolutely correct.”17 This adoption is not a proper memorandum of law as required by
the Local Rules, but the Court interprets this statement as agreeing with the law as set forth by
the Court in its Order and Defendant’s Motion for Summary Judgment. Thus, Plaintiff’s
Amended Request does not challenge the legal basis for the Court’s ruling on Defendant’s
Motion for Summary Judgment. However, Plaintiff also filed a response to Defendant’s
Statements of Undisputed Fact, which the Court will evaluate. Additionally, Plaintiff supplied
the Court with a three-paragraph affidavit raising factual evidence previously not before the
Court due to Fields’ failure to timely respond to Defendant’s Motion for Summary Judgment.
Although the Court’s consideration of this evidence is not required pursuant to Local Rule 7.3, it
will address the issues raised by those assertions as well.
The Court begins with the alleged disputes of fact raised by Plaintiff. In her Amended
Request, Plaintiff submitted a Response to Defendant’s Undisputed Material Facts.18 She
disputed four of the sixty-three numbered paragraphs.19 However, none of those four disputes
cite to any portion of the record as required by the Local Rules. Plaintiff’s response to Paragraph
37, which addressed Dewun Settle’s (“Settle”) motivation for firing Plaintiff, contained
allegations that Defendant could have fired two other individuals instead of Plaintiff.20 Her
response to Paragraph 39, which addressed Plaintiff’s own deposition statement that Settle had

17

(Pl.’s Am. Request, D.E. # 39-1, at 1.)

18

(Pl.’s Resp. to Def.’s Facts, D.E. # 40, at 1.)

19

Plaintiff admitted the remaining paragraphs, but she contended that the majority
of them were immaterial. She also elaborated upon her agreement in other paragraphs, but she
failed to cite to the record in support of her statements.
20

(Id. at 3-4.)
7

eliminated Plaintiff’s position as a cost-savings measure, merely states “DENIED.”21 Plaintiff’s
response to Paragraph 44, which cites to Plaintiff’s deposition testimony regarding her
motivations for retiring from the Shelby County Division of Corrections, states: “DENIED. She
had her EEOC lawsuit pending.”22 Finally, Plaintiff’s response to Paragraph 53, which contains
Plaintiff’s own deposition testimony, disputes her statements because “[Settle] could not choose
based upon age or being a ‘whistleblower.’”23
The Court finds that these four inadequate denials constitute an insufficient attempt to
create a disputed issue of fact so as to preclude summary judgment. Had the Court been
presented with this information when it originally considered Defendant’s Motion for Summary
Judgment, its ruling would not have differed. Plaintiff’s attempt to create an issue of fact
without citing to the record and by disputing only four of the facts presented by Defendant do
not merit a change in the Court’s original decision. Accordingly, the Court will now turn to
Plaintiff’s Amended Request and the new evidence presented in Plaintiff’s Affidavit.
In her Amended Request, Plaintiff asserts that she has presented a prima facie case of age
discrimination because Settle terminated her from her position as Manager B.24 She asserts that,
instead of laying off Veronica Nelson (“Nelson”) and Amy Mitchell (“Mitchell”) who had less
seniority than Plaintiff and whose combined salaries totaled more than the $55,000 needed to
meet Settle’s required budget reduction, “Settle chose to lay off [Plaintiff] for no apparent

21

(Id. at 4.)

22

(Id.)

23

(Id.)

24

(Pl.’s Am. Request, D.E. # 39-1, at 1.)
8

reason.”25 Plaintiff further argues that her termination was pretextual because the RIF could
have been accomplished by firing Nelson and Mitchell instead of Plaintiff and because Nelson
and Mitchell then took over Plaintiff’s work.26 Plaintiff points to an email indicating that
Mitchell began work on June 1, 2009, as Chancery Court’s Adoptions/Appeals Clerk, as further
evidence that Defendant’s legitimate nondiscriminatory reason was pretextual.27
Although Plaintiff does not appear to argue that she would survive summary judgment on
her retaliation claim, she does make arguments that she was retaliated against. Plaintiff avers
that, after her deposition, she remembered that she told Settle that she had found $376.00 “in
missing tax receipts missing from the clerk’s office” and that it was traced to Mr. Brandon Gunn
(“Gunn”).28 Plaintiff “warned . . . Settle to watch . . . Guinn [sic] as she had never missed any
tax receipts when she and her crew accounted for the moneys collected.”29
In response, Defendant argues that nothing in Plaintiff’s Amended Request “would
justify the Court’s reconsidering the Order. . . .”30 Defendant points out that three of Plaintiff’s
four allegedly disputed facts were excerpted almost verbatim from her own deposition testimony
and avers that she cannot defeat summary judgment by contradicting her own deposition

25

(Id. at 2.)

26

(Id.)

27

(Id.; D.E. # 41-1, at 10.)

28

(Pl.’s Am. Request, D.E. # 39-1, at 2.)

29

(Id.)

30

(Def.’s Resp. to Pl.’s Am. Request, D.E. # 42, at 3.)
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testimony.31 Defendant also contends that Plaintiff’s other disputed fact, Paragraph 37, was
supported by competent evidence and that Plaintiff has not come forward with competent
evidence to challenge it.32 Defendant further argues that Plaintiff’s evidence regarding Gunn’s
embezzlement is not newly discovered because she knew about it on May 5, 2011, when the
article first appeared in the Commercial Appeal, and Fields questioned Settle about it during his
deposition on June 16, 2011.33 Defendant implies that bringing this evidence to the Court’s
attention in her Amended Request on February 5, 2012, exactly nine months after the newspaper
article was published, makes the evidence not newly-discovered. Defendant concludes by
stating that the court should not permit Plaintiff to present evidence that could have been raised
prior to entry of judgment.34
The Court finds that, even if Plaintiff had punctually filed the Response contained in her
Amended Request, the Court would still have granted summary judgment for Defendant.
Plaintiff has fundamentally failed to put forth the properly-cited factual support necessary to
create an issue of fact for trial. Moreover, the evidence she does present related to her age
discrimination claim is insufficient. Defendant did not hire Mitchell as a Manager B, Plaintiff’s
prior position, and Plaintiff did not submit evidence indicating that Mitchell’s responsibilities as
Chancery Court’s Adoptions/Appeals Clerk were comparable to those of Plaintiff. Additionally,
Mitchell was hired on June 1, 2009, but Plaintiff’s appointment was not rescinded until June 30,

31

(Id. at 4.)

32

(Id.)

33

(Id. at 4-5.)

34

(Id. at 6-7.)
10

2009. Therefore, Mitchell was not hired after Plaintiff was fired, and she will not help Plaintiff
establish the fourth element of her prima facie case. Plaintiff also appears to argue that
Defendant should have fired two of its other employees in lieu of her. However, this Court will
not second-guess Defendant’s employment retention or termination decisions absent evidence of
some discriminatory motive.35
Moreover, the evidence related to Plaintiff’s opposition to Gunn’s alleged embezzlement
would not qualify as protected activity under Title VII’s retaliation provision, as it does not
relate to participation in a proceeding under Title VII, or opposition to conduct protected under
Title VII. Nor is this evidence newly discovered; Plaintiff knew or should have known about it
on May 5, 2011, but she did not bring it to the Court’s attention through a proper Motion under
the Federal Rules until February 5, 2012. Therefore, she has not presented evidence related to
her retaliation claim which would merit the Court’s reconsideration of its prior ruling.
Therefore, the Court finds that Plaintiff has not demonstrated a material difference in fact
or law, new material facts or a change of law, or a manifest failure to consider material facts or
dispositive legal arguments. Even if she had, and the Court reached the merits of her arguments,
the Court would not change its prior ruling: Plaintiff has failed to set forth prima facie cases of
age discrimination under the ADEA and retaliation under Title VII. Accordingly, Plaintiff’s
Request and Amended Request are DENIED.

35

See Adams v. Tenn. Dep’t of Fin. & Admin., 179 F. App’x 266, 272 (6th Cir.
2006) (“Courts are not intended to act as super personnel departments to second guess an
employer’s facially legitimate business decisions.”); Smith v. Leggette Wire Co., 220 F.3d 752,
763 (6th Cir. 2000) (finding that “it is inappropriate for the judiciary to substitute its judgment
for that of management”); Wilkins v. Eaton Corp., 790 F.2d 515, 521 (6th Cir. 1986) (“The
factfinder may not focus on the soundness of the employer’s business judgment . . . .”).
11

Motion to Amend the Complaint
In her Amended Request, Plaintiff inserts two paragraphs requesting leave to amend her
complaint to add an entirely new claim.36 Plaintiff asserts that “she also has a perfect case under
the Tennessee Whistleblower Protection Act where she was terminated also because she
informed her boss about the theft by Mr. Guinn [sic].”37 Plaintiff requests to amend her
Complaint to include this whistleblower claim because she “discovered [it] on Mary 5, 2011, in a
Commercial Appeal [a]rticle.”38 In response, Defendant argues that, due to the length of time
since the dismissal of Plaintiff’s § 1983 claims in November of 2010 and the Court’s grant of its
Motion for Summary Judgment in November of 2011, Defendant would be unduly prejudiced by
reopening discovery “on a new claim involving new witnesses at this late date.”39
The Court finds that permitting Plaintiff to amend her Complaint would result in undue
prejudice to Defendant. Defendant filed its Motion for Summary Judgment on July 29, 2011
(D.E. # 17), and the Court granted it on November 18, 2011 (D.E. # 26.) Plaintiff requested to
amend her Complaint in February of 2012, seven months after Defendant filed its Motion for
Summary Judgment. Reopening discovery and permitting this meritless lawsuit to continue
would unduly prejudice Defendant, as it would have to re-depose witnesses and re-brief
summary judgment motions in light of the amendment. Moreover, Plaintiff’s undue delay in
presenting her request further persuades the Court that her requested relief is not merited.
36

As with the other portions of her Amended Request, Plaintiff cites to no legal
authority in support of her position.
37

(Pl.’s Mot., D.E. # 39-1, at 3.)

38

(Id. at 3-4.)

39

(Def.’s Resp., D.E. # 42, at 8.)
12

Plaintiff has presented no justification for her delay. She alleges that she discovered her
potential whistleblower claim on May 5, 2011. But nearly nine months passed after this
discovery before she filed her Motion to Amend the Complaint.40 Accordingly, the Court finds
that this undue delay on Plaintiff’s part would result in undue prejudice to Defendant. Therefore,
Plaintiff’s Motion to Amend the Complaint is DENIED.
CONCLUSION
For the foregoing reasons, Plaintiff’s Request to Withdraw the Order Granting Summary
Judgment and to Reopen Discovery and her Amended Request are DENIED.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE
Date: April 23, 2012.

40

Of course, characterizing the paragraphs in Plaintiff’s Amended Request as a
proper Motion to Amend the Complaint would stretch the boundaries of what constitutes an
acceptable Motion under the Federal Rules of Civil Procedure.
13