Oliver v. Amazon.com Services LLC

Filing 64

DECISION AND ORDER signed by Magistrate Judge Nancy Joseph on 5/23/2023 denying 61 Motion for Reconsideration. (cc: all counsel and mailed to pro se party)(llc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JASMINE OLIVER,
Plaintiff,
v.

Case No. 22-CV-149

AMAZON.COM SERVICES, LLC,
Defendant.

DECISION AND ORDER DENYING PLAINTIFF’S
MOTION FOR RECONSIDERATION

Jasmine Oliver, who is representing herself, sues her former employer, Amazon.com
Services, LLC, alleging failure to accommodate and retaliation in violation of the Americans
with Disabilities Act, 42 U.S.C. § 12112, et seq.; discrimination based on sex in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; and discrimination based
on race in violation of 42 U.S.C. § 1981. After multiple discovery disputes between the parties,
Oliver moved for sanctions for Amazon’s alleged failure to comply with this Court’s order to
compel production of discovery and for spoliation sanctions based on Amazon’s alleged
destruction of surveillance video and job applications that Oliver contends are vital to proving
her case. On May 8, 2023, I denied Oliver’s motion. (Docket # 60.) Presently before me is
Oliver’s expedited non-dispositive motion pursuant to Fed. R. Civ. P. 59(e) for
reconsideration of the spoliation decision. (Docket # 61.)

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LEGAL STANDARD
Although Oliver moves for reconsideration of the spoliation decision under Fed. R.
Civ. P. 59(e), Rule 59 address motions to alter or amend a judgment. No judgment has yet
been entered in this case. Rather, what Oliver appears to request is for reconsideration under
Rule 54(b). Rule 54(b) allows a court to exercise its inherent authority to reconsider nonfinal
orders. See Civix-DDI, LLC v. Hotels.com, LP, 904 F. Supp. 2d 864, 866 (N.D. Ill. 2012) (citing
Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 12 (1983) (“Every order short
of a final decree is subject to reopening at the discretions of the . . . judge.”).
A motion for reconsideration serves a very limited purpose in federal civil litigation; it
should be used only “to correct manifest errors of law or fact or to present newly discovered
evidence.” Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d 246, 251 (7th Cir. 1987) (quoting
Keene Corp. v. Int’l Fid. Ins. Co., 561 F. Supp. 656, 665–66 (N.D. Ill. 1982), aff’d, 736 F.2d 388
(7th Cir. 1984)). While “[a] court has the power to revisit prior decisions of its own,” courts
“should be loathe to do so in the absence of extraordinary circumstances such as where the
initial decision was ‘clearly erroneous and would work a manifest injustice.’” Christianson v.
Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988) (quoting Arizona v. California, 460 U.S.
605, 618 n.8 (1983)). In general, “litigants must fight an uphill battle in order to prevail on a
motion for reconsideration.” United Air Lines, Inc. v. ALG, Inc., 916 F. Supp. 793, 795 (N.D.
Ill. 1996).
ANALYSIS
Oliver’s motion appears to be two-fold. First, Oliver argues that she raised facts which
were the foundation of her spoliation claim that the Court failed to address, namely, the
alteration of accommodation records and two inconsistent termination dates. (Docket # 61

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at 1–3.) Oliver argues that these facts prove Amazon’s intent to deprive her of the surveillance
footage. Second, Oliver argues that the spoliation decision was based on Amazon’s false
declaration that video surveillance footage is deleted after fourteen days pursuant to the
company’s regular retention policy. (Docket # 61 at 2.) Oliver appends to her motion Exhibit
A, which she contends provides proof that Amazon does not automatically delete video
surveillance footage after fourteen days, thus proving Amazon’s intent by its selective deletion
of files. (Id. at 2–3.)
As an initial matter, Amazon states that the email correspondence Oliver marks as
Exhibit A in her motion for reconsideration was produced to her in discovery on November
3, 2022. (Docket # 63 at 2.) Reconsideration is not the proper vehicle in which to present facts
or arguments that were available to a party in her initial motion. Rather, it is for “newly
discovered evidence.” Ordinarily, to constitute “new evidence,” the moving party must show
not only that the evidence was newly discovered, but also that it could not have been timely
discovered “with reasonable diligence.” United States v. Spectrum Brands, Inc., 218 F. Supp. 3d
794, 803–04 (W.D. Wis. 2016). Oliver fails to do so.
Even setting aside the fact that this is not “newly discovered evidence,” in the
spoliation decision, I concluded that Oliver indeed demonstrated that ESI was lost because
Amazon failed to take reasonable steps to preserve it, thus meeting the threshold requirement
of Fed. R. Civ. P. 37(e). (Docket # 60 at 6–10.) Where Oliver’s motion fell short, however,
was in the remedy she was requesting. Once the threshold requirements of Rule 37(e) are met,
Rule 37(e)(1) and (2) provide the appropriate remedies. These include: (1) upon a finding of
prejudice from the loss of the information, a measure no greater than necessary to cure the
prejudice and (2) upon a finding of intent to deprive another party of the information’s use in

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the litigation, an adverse inference or dismissal of the action. Fed. R. Civ. P. 37(e)(1) and (2).
I found that Oliver failed to demonstrate how she was prejudiced by the loss of the
information in order to warrant a remedy under Rule 37(e)(1), and failed to show Amazon’s
intent to deprive her of the information’s use in the litigation, to warrant a remedy under Rule
37(e)(2). (Docket # 60 at 11–13.)
Oliver’s reconsideration motion does not present any manifest errors of law or fact.
While Oliver argues that the Court failed to consider her asserted facts of Amazon’s alteration
of accommodation records and inconsistent termination dates (Docket # 61 at 1–2), she fails
to explain how this bolsters her argument that Amazon intentionally deleted security footage
to deprive her of it in litigation.
And as to the newly provided Exhibit A, Oliver includes an email between Senior
Human Resources Assistant, Tifashia Norphlet, and Human Resources Business Partner,
Rykiel Rome, in which Rome asks Norphlet whether the other employee allegedly involved
in the altercation leading to Oliver’s termination would be “comfortable sharing that
recording with us?” (Docket # 61-1 at 5.) Norphlet responded by stating that “Marissa said
she did not record. Jasmine said that Marissa recorded her but Marissa denied recording and
the other AAs could not confirm that Marissa had her phone out and recorded.” (Id. at 4.)
Oliver then highlights an email Rome sent several days later stating “footage is saved in the
HR/LP shared Drive.” (Id. at 2.)
Oliver argues that this email proves that Norphlet’s declaration was false when she
averred that the surveillance footage of the altercation leading to her termination was deleted
during regular file clean-up. Oliver argues that the email shows that the footage existed on
June 11, 2020, more than fourteen days after the alleged May 23, 2020 incident, contrary to

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Norphlet’s assertion. (Docket # 61 at 3.) But even assuming that Oliver is correct that the
“Footage is saved” statement refers to video surveillance taken of the altercation and that this
footage indeed existed five days after Amazon’s stated auto-delete period, this still does not
bridge the evidentiary gap of showing that Amazon intended to destroy the information to
deprive Oliver of its use in litigation.
Oliver has not shown that reconsideration is warranted under Rule 54(b). Thus, the
motion is denied.
ORDER
NOW, THEREFORE, IT IS HEREBY ORDERED that plaintiff’s expedited nondispositive motion for reconsideration (Docket # 61) is DENIED.

Dated at Milwaukee, Wisconsin this 23rd day of May, 2023

COURT
BY THE COUR
RT

_____________
__________
____
___
NANCY JOS
JOSEPH
SEP
EPH
United States Magistrate Judge

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