Merriam v. Peak Restaurant Partners et al

Filing 70

MEMORANDUM DECISION AND ORDERdenying 66 Defendant's Motion for Reconsideration. Signed by Judge Dee Benson on 1/4/2019. (mas)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
SHERILYNN MERRIAM,
Plaintiff,

MEMORANDUM DECISION AND
ORDER

v.
PEAK RESTAURANT PARTNERS,
Defendant.

Case No. 2:15-cv-32-DB
District Judge Dee Benson

Before the Court is Defendant’s Motion for Reconsideration of Order Denying Summary
Judgment in Light of New Authority. (Dkt. No. 66.) The court has reviewed the briefing
submitted by the parties. Pursuant to civil rule 7-1(f) of the United States District Court for the
District of Utah Rules of Practice, the court elects to determine the motion on the basis of the
written memoranda and finds that oral argument would not be helpful or necessary. DUCivR 71(f).
This court may grant a motion to reconsider where the movant has established: (1) an
intervening change in controlling law; (2) availability of new evidence; or (3) the need to correct
clear error or prevent manifest injustice. Brunmark Corp. v. Samson Resources Corp., 57 F.3d
941, 948 (10th Cir.1995). A motion to reconsider should be granted only where the court
“misapprehended the facts, a party’s position, or the controlling law.” Servants of Paraclete v.
Does, 204 F.3d 1005, 1012 (10th Cir.2000) (citing Van Skiver v. United States, 952 F.2d 1241,
1243 (10th Cir.1991) (other citations omitted)). A motion to reconsider is not a vehicle to “revisit
issues already addressed or advance arguments that could have been raised in prior briefing.” Id.

Defendant requests that this court reconsider its denial of Defendant’s Motion for
Summary Judgment with respect to Plaintiff’s retaliation claim, in light of a recent decision
issued by the Tenth Circuit Court of Appeals, Payan v. United Parcel Service, et al., Case No.
16-4188, 14-18 (10th Cir. Oct. 4, 2018). In Payan, the Tenth Circuit determined “that placement
on an employee improvement plan alone does not qualify as a materially adverse action” for
purposes of a Title VII retaliation claim. Id. at 17.
In the Report and Recommendation adopted by this court, Magistrate Judge Furse
observed that the Plaintiff in this case was “thirty days into a sixty-day PIP” as she received
additional “bad reviews” in which her supervisor did not “recogniz[e] areas of improvement”
and that Plaintiff was faced with “potential termination for noncompliance.” (Dkt. No. 62 at 20.)
Magistrate Judge Furse relied on Plaintiff’s PIP “in combination with [her] subsequent bad
reviews” in holding that a genuine issue of material fact existed with respect to Plaintiff’s
retaliation claim. (Id.)
Defendant argues that the Tenth Circuit’s holding in Payan—that a PIP alone does not
constitute retaliatory action—dictates a different result. The court disagrees, and finds Payan to
be consistent with the case law cited and applied by Magistrate Judge Furse in her R&R. In
Payan, the Tenth Circuit held that the PIP was insufficient on its own to constitute a materially
adverse action that would dissuade a reasonable worker from filing a charge of discrimination.
Here, however, the magistrate observed that in addition to Plaintiff’s PIP, other actions were
taken which, if causally linked to Plaintiff’s protected conduct, could constitute improper
retaliatory action. Accordingly, Payan does not constitute an intervening change in controlling

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law that would warrant reconsideration of the adoption of the magistrate judge’s R&R denying
summary judgment.
For the foregoing reasons, Defendant’s Motion for Reconsideration is hereby DENIED.

DATED this 4th day of January, 2019.

BY THE COURT:

Dee Benson
United States District Judge

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