United States District Court, D. Kansas
MARK E. BROWN, Plaintiff,
UNIFIED SCHOOL DISTRICT NO. 501, Defendant.
MEMORANDUM AND ORDER
L. TEETER, UNITED STATES DISTRICT JUDGE
Mark E. Brown, a teacher formerly employed by Defendant
Unified School District No. 501, filed this lawsuit under
Title VII of the Civil Rights Act of 1964 (“Title
VII”), 42 U.S.C. §§ 2000e, et seq., alleging
that Defendant refused to rehire him based on his race and in
retaliation for a prior lawsuit he filed against Defendant.
Plaintiff seeks reconsideration of the Court's July 24,
2019 Memorandum and Order granting Defendant's motion for
summary judgment. Doc. 62. For the reasons discussed below,
the Court denies Plaintiff's motion.
factual background underlying the parties' dispute is set
forth in detail in the Court's summary judgment order and
is not repeated at length herein. In sum, this case stems
from Defendant's 2016 refusal to consider Plaintiff for
rehire. Plaintiff previously worked for Defendant from 1982
until his voluntary resignation in 1996. Plaintiff claims
Defendant refused to rehire him based on his race and in
retaliation for a prior lawsuit he filed against Defendant in
1991. Based on these allegations, Plaintiff asserted two
claims under Title VII: (1) race-based discrimination for
failure-to-hire and (2) retaliation.
subsequently moved for summary judgment on both of
Plaintiff's claims, arguing that Plaintiff could not
establish a prima facie case on either claim and, regardless,
could not prove that Defendant's proffered reasons for
refusing to rehire him were mere pretext for discrimination
and retaliation. Docs. 54-55. On July 24, 2019, the Court
entered an order granting summary judgment in favor of
Defendant. Doc. 62. In its order, the Court found that: (1)
although Plaintiff had met the prima facie burden on his
Title VII failure-to-hire claim, Plaintiff could not rebut
Defendant's legitimate, nondiscriminatory reasons for
refusing to reconsider its 2001 no-rehire decision by showing
that those reasons were mere pretext for discrimination; and
(2) Plaintiff could not establish a prima facie case on his
retaliation claim, and, even if he could, he again could not
show that Defendant's stated reasons for its no-rehire
decision were pretext. Id. Judgment was accordingly
entered in favor of Defendant. Doc. 63.
now asks the Court to reconsider portions of that
order-specifically, the Court's holding that “no
reasonable jury could determine that Defendant's
legitimate reasons for its actions were mere pretext”
for intentional discrimination or retaliation. Doc. 64 at 1.
of Kansas Rule 7.3 provides that “[p]arties seeking
reconsideration of dispositive orders or judgments must file
a motion pursuant to Fed.R.Civ.P. 59(e) or
60.” D. Kan. R. 7.3(a). Grounds warranting
relief from judgment under Rule 59(e) include: (1) an
intervening change in controlling law, (2) the availability
of new evidence that could not have been obtained previously
through the exercise of due diligence, and (3) the need to
correct clear error or prevent manifest injustice.
Brinkman v. Norwood, 2018 WL 1806758, at *1 (D. Kan.
2018); see also Servants of the Paraclete v. Does,
204 F.3d 1005, 1012 (10th Cir. 2000). Such a motion “is
appropriate where the court has misapprehended the facts, a
party's position, or the controlling law.”
Servants of the Paraclete, 204 F.3d at 1012. But it
is not a vehicle to “revisit issues already addressed
or advance arguments that could have been raised in prior
briefing.” Id. Nor is it “a second
chance for the losing party to make its strongest case or to
dress up arguments that previously failed.” Voelkel
v. Gen. Motors Corp., 846 F.Supp. 1482, 1483 (D. Kan.
1994). The party seeking relief bears the burden of
demonstrating that he is entitled to such relief.
Brinkman, 2018 WL 1806758, at *1. Reconsideration of
a judgment is an extraordinary remedy and should be used
motion, Plaintiff does not expressly state which grounds for
relief he is asserting. But he does not identify an
intervening change in the controlling law or new evidence
that could not have been obtained previously (and the Court
discerns none). Plaintiff therefore appears to move under the
third ground for relief only: the need to correct clear error
or prevent manifest injustice.
Tenth Circuit defines “clear error” as “an
arbitrary, capricious, whimsical, or manifestly unreasonable
judgment.” United States v. Carter, 2019 WL
329573, at *1 (D. Kan. 2019) (citing Wright ex rel. Tr.
Co. of Kan. v. Abbott Labs., Inc., 259 F.3d 1226, 1236
(10th Cir. 2001)). “Manifest injustice, ”
meanwhile, is a “direct, obvious, and observable error
in a trial court” that is “apparent to the point
of being indisputable.” Id. (citing
Paliwoda v. Showman, 2014 WL 11517806, at *1 (D.
Kan. 2014)). To prove manifest injustice, a plaintiff must
show “more than just a clear and certain
prejudice.” Id. Rather, a plaintiff must also
show “a result that is fundamentally unfair in light of
governing law.” Id.
“clear error” or “manifest injustice”
that Plaintiff claims warrants reconsideration is with
respect to the Court's analysis of the third prong of the
McDonnell Douglas burden-shifting scheme-the pretext
analysis. In its summary judgment order, the Court
held that Plaintiff had not met his burden of showing that
Defendant's asserted reasons for its refusal to rehire
Plaintiff- i.e., Plaintiff's negative performance
evaluations and the 1989 sexual misconduct investigation-
were mere pretext for discriminatory and retaliatory intent.
Doc. 62 at 14-17, 20-21. But Plaintiff contends this holding
was incorrect, arguing the Court erred in concluding that
Defendant honestly believed the reason it gave for its
conduct and acted in good faith on that belief. Doc. 64.
Specifically, Plaintiff argues the Court disregarded evidence
set out by Plaintiff in his summary judgment briefing.
Court disagrees with Plaintiff. First, the Court's
analysis of pretext in its summary judgment order was a
correct application of the law to the facts, and
Plaintiff's arguments do not meet Rule 59(e)'s
standard of showing “clear error” or
“manifest injustice.” As the Court stated in its
order, pretext may be shown by demonstrating a
defendant's proffered justifications for taking the
adverse action are unworthy of belief. Dewitt v. Sw. Bell
Tel. Co., 845 F.3d 1299, 1307 (10th Cir. 2017). A
court's role is not to “second guess” the
defendant's business judgment. Id. Indeed,
whether the defendant's proffered reasons for its actions
were fair or correct is immaterial so long as the defendant
honestly believed those reasons and acted in good faith upon
those beliefs. Swackhammer v. Sprint/United Mgmt.
Co., 493 F.3d 1160, 1169-70 (10th Cir. 2007). Plaintiff
does not dispute the law and, indeed, cites this proposition
from Swackhammer in support of his motion to alter
or amend. Doc. 64 at 2.
in finding that Defendant honestly believed the reason it
gave for its decision not to rehire Plaintiff and acted in
good faith on that belief, the Court discussed at length the
numerous uncontroverted facts supporting this finding. Doc.
62 at 14-17, 20-21. This evidence included negative
performance evaluations from Plaintiff's tenure with
Defendant, which noted concerns regarding his
professionalism, communication skills, and inappropriate
comments to students. Id. at 15. One such
evaluation, which the Court cited in its summary judgment
order, commented that Plaintiff's performance while
employed with Defendant was “less than that of other
teachers in the areas of professional skills, interpersonal
relationships, and especially personal
characteristics.” Id. Another evaluation
included a request that Plaintiff be transferred to a
different school due to doubts he could meet students'
needs. Id. The Court also cited information from
Plaintiff's personnel file (which, as noted in the
summary judgment order, was reviewed by HR personnel in
connection with Defendant's decision not to rehire
Plaintiff) regarding an investigation into
sexually-inappropriate comments Plaintiff made to a female
student under his supervision during his tenure as a
girls' basketball coach. Id. at 15-16. With
respect to this last piece of evidence, the Court further