Dunn v. Apache Industrial Services, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

GERALDINE DUNN CIVIL ACTION

VERSUS NO. 17-12777

APACHE INDUSTRIAL SERVICES, INC. SECTION “B”(1)

ORDER AND REASONS

For the reasons discussed below,

IT IS ORDERED that plaintiff’s opposed motion for

reconsideration (Rec. Doc. 166) is DISMISSED. See also Rec. Docs.

104, 167, 170.

I. FACTS AND PROCEDURAL HISTORY

This case arises from plaintiff Geraldine Dunn’s allegations

that defendant Apache Industrial Services, Inc. (“Apache”)1

discriminated against, retaliated against, and wrongfully

terminated plaintiff. Rec. Doc. 1 at 2. Plaintiff is a resident

of the East Baton Rouge parish in Louisiana. Id. In June 2016,

Apache, a foreign corporation with its principal place of business

in Texas, employed plaintiff as a bus driver, flagger, and painter.

Id. at 3. At the time of plaintiff’s employment, Apache worked as

a subcontractor for Phillips 66 Company (“Phillips”), a general

contractor. Id.

1 Originally, plaintiff also sued Team Industrial Services, Inc. and Phillips

66 Company, but those defendants were dismissed on May 29, 2018 and February

13, 2019, respectively. See Rec. Docs. 45, 56.

In August 2016, plaintiff learned that while she only earned

$19.00 per hour, with approximately fifteen years of work

experience, her male counterparts were earning $23.00 per hour.

Id. That month, plaintiff spoke with Apache’s project manager, Tim

Robichaux, on two occasions about this wage discrepancy. Id.

Plaintiff claims Apache agreed to raise her hourly pay to $23.00

per hour, but never did. Id. After complaining about unequal pay

rates, plaintiff was allegedly subjected to harassment and

discrimination, including being forced to perform duties that male

employees were exempted from and being yelled at by her supervisor,

Marlow Williams.2 Id. at 3-4.

On October 13, 2016, plaintiff filed an Equal Employment

Opportunity Commission (“EEOC”) Charge of Discrimination against

Apache for violating the Equal Pay Act and Title VII of the Civil

Rights Act. Id. at 4; see also Rec. Doc. 170-10 at 1; Rec. Doc.

78-2 at 2 n.1. “The EEOC sent out [this] Notice of Charge of

Discrimination to Apache on or about October 21, 2016.” Rec. Doc.

78-2 at 2.3 Later that month on October 24, 2016, plaintiff attended

a meeting with safety management to discuss knee pain. Id. at 4.

Safety manager, Angel A. Julio, brought plaintiff to the clinic

2 In her complaint, plaintiff states that on or around September 28, 2016,

William brought paint to the work area for male employees only. Rec. Doc. 1 at

4. When Williams told plaintiff to get her own paint, and plaintiff asked why,

Williams began to yell at her. Id.

3 Defendants claim they received notice of plaintiff’s first charge of

discrimination on December 6, 2016. Rec. Doc. 170-6.

where she “stated to Phillip 66 employees in the clinic that

[Apache] under pay[s] her because she is a female and she was

placed as a flagger because she was a female.” Rec. Doc. 166-14 at

1; see also Rec. Doc. 166-1 at 9. “At the time she was complaining,

Nelson, the Head of Safety and Security, walked in and told her

this was not the place for all that and she needed to take it to

the company office.” Rec. Doc. 166-14 at 2; see also Rec. Doc.

166-1 at 9. After this incident, the safety team “decided to cut

her badge off.” Rec. Doc. 166-14 at 1; see also Rec. Doc. 166-1 at

9.

On this same day, Apache allowed plaintiff to take two days

off from work. Rec. Doc. 1 at 4. On October 27, 2016, plaintiff

claims she returned to work and Apache terminated her. Id.

Plaintiff testified that Apache told her she was fired because

Phillips 66 did not want plaintiff on the property. Rec. Doc. 78-

6 at 12. Apache claims that in October 2016, “Phillips 66 informed

Apache that it was exercising its right under the contract between

Phillips 66 and Apache that it no longer wanted plaintiff assigned

to its project and did not want her back on Phillips 66 property.”

Rec. Doc. 78-1 at 2. Consequently, defendant states “it was not

Apache that ended Plaintiff’s assignment at Phillips 66 property.”

Id. Apache was allegedly “willing to place plaintiff on another

assignment, when available; however, plaintiff took no steps to

follow up with Apache.” Rec. Doc. 78-2 at 9. Nevertheless, Apache’s

Louisiana Workforce Commission Separation Notice states that

plaintiff’s “Employee Date of Separation” was October 23, 2016,

and that Apache “terminated/fired” plaintiff for “failure to

perform duties, failure to report, violat[ion] [of] company

policies,” and being a “disgruntled employee about her work task.”

Rec. Doc. 170-2 at 4.

In November 2016, plaintiff filed another EEOC Charge against

Apache for violating Title VII of the Civil Rights Act. Rec. Doc.

170-10 at 5; see also Rec. Doc. 1 at 5. Defendant received this

Charge on January 12, 2017. Rec. Doc. 170-10. On August 20, 2017,

Plaintiff received a “Dismissal and Notice of Rights” letter from

the EEOC for “both of her Charges of Discrimination.” Rec. Doc. 1

at 5. Exactly three months later, plaintiff filed a complaint in

federal court alleging Apache violated Title VII of the Civil

Rights Act of 1964, The Equal Pay Act of 1963, the Age

Discrimination in Employment Act of 1967, Louisiana Civil Code

Article 2315, the Louisiana Whistleblower Statute, and Louisiana

Revised Statute § 23:967. See generally Rec. Doc. 1. Plaintiff

seeks damages under 42 U.S.C. § 1981(a) and 29 U.S.C. § 215 (a)(3),

as well as reasonable attorney fees under 29 U.S.C. § 216 (b). See

Rec. Doc. 1 at 4-10.

On April 3, 2018, defendant Apache filed a motion to dismiss

for failure to state a claim. Rec. Doc. 15. The Court then

dismissed plaintiff’s ADEA, § 1981, and state law claims, but

preserved her gender discrimination and retaliation claims under

Title VII and the Equal Pay Act. Rec. Doc. 54. On February 18,

2020, Apache filed a motion for summary judgment. Rec. Doc. 78.

Six months later, the Court granted Apache’s motion on plaintiff’s

hostile work environment and retaliation claims, but denied it as

to plaintiff’s other remaining claims. Rec. Doc. 104. About a year

and a half after the Court’s ruling, plaintiff now asks the Court

to reconsider its decision to grant defendant summary judgment on

plaintiff’s retaliation claim. Rec. Doc. 166.

II. LAW AND ANALYSIS

A. Motion for Reconsideration Standard

Federal Rule of Civil Procedure 54(b) provides the district

court with “the inherent procedural power to reconsider, rescind,

or modify an interlocutory order for cause seen by it to be

sufficient.” Castrillo v. Am. Home Mortg. Servicing, Inc., No. 09-

4369, 2010 WL 1424398, at *3 (E.D. La. Apr. 5, 2010) (quoting

Melancon v. Texaco, Inc., 659 F.2d 551, 553 (5th Cir. 1981)). The

district court’s discretion is broad when determining whether a

motion for reconsideration has merit; however, “it is exercised

sparingly in order to forestall the perpetual reexamination of

orders and the resulting burdens and delays.” Id. (citing 18b

Charles A. Wright & Arthur Miller, Federal Practice and Procedure

§ 4478.1 (2d ed. 2002)). “The general practice of courts in the

Eastern District of Louisiana has been to evaluate Rule 54(b)

motions to reconsider interlocutory orders under the same

standards that govern Rule 59(e) motions to alter or amend a final

judgment.” Hoffman v. Bailey, No. 13-5153, 2015 WL 9315785, at *7

(E.D. La. Dec. 23, 2015).

A Rule 59(e) motion “calls into question the correctness of

a judgment.” In re Transtexas Gas Corp., 303 F.3d 571, 581 (5th

Cir. 2002). Rule 59(e) serves “the narrow purpose of allowing a

party to correct manifest errors of law or fact or to present newly

discovered evidence.” Atchafalaya Basinkeeper v. Bostick, 663 F.

App’x 291, 294 (5th Cir. 2016) (quoting Waltman v. Int’l Paper

Co., 875 F.2d 468, 473 (5th Cir. 1989)). Amending a judgment is

appropriate under Rule 59(e): “(1) where there has been an

intervening change in the controlling law; (2) where the movant

presents newly discovered evidence that was previously

unavailable; or (3) to correct a manifest error of law or fact.”

Berezowsky v. Ojeda, 652 F. App’x 249, 251 (5th Cir. 2016) (quoting

Demahy v. Schwarz Pharma, Inc., 702 F.3d 177, 182 (5th Cir. 2012)).

Because Rule 59(e) has a “narrow purpose,” the Fifth Circuit has

observed that “[r]econsideration of a judgment after its entry is

an extraordinary remedy that should be used sparingly.” Templet v.

HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004). Thus, a motion

for reconsideration “is not the proper vehicle for rehashing

evidence, legal theories, or arguments that could have been offered

or raised before the entry of judgment.” Id. “When there exists no

independent reason for reconsideration other than mere

disagreement with a prior order, reconsideration is a waste of

judicial time and resources and should not be granted.” Ferraro v.

Liberty Mut. Ins. Co., No. 13-4992, 2014 WL 5324987, at *1 (E.D.

La. Oct. 17, 2014).

B. Timeliness

“[A]ny order or other decision, however designated, that

adjudicates fewer than all the claims . . . may be revised at any

time before the entry of a judgment adjudicating all the claims

and all the parties’ rights and liabilities.” Fed. R. Civ. P.

54(b); see also Austin v. Kroger Tex., L.P., 864 F.3d 326, 336

(5th Cir. 2017). Put simply, “Rule 54(b) does not contain any kind

of time limit.” Zamanian v. Jefferson Par. Hosp. Serv. Dist. No.

2, No. 17-1087, 2017 WL 6325817, at *2 (E.D. La. Dec. 11, 2017)

(citing Livingston Downs Racing Ass’n, Inc. v. Jefferson Downs

Corp., 259 F. Supp. 2d 471, 475 (M.D. La. 2002)).

Defendant argues that plaintiff’s motion is untimely because

Federal Rule of Civil Procedure 1 dictates that the federal rules

of civil procedure “should be employed to secure the just, speedy,

and inexpensive determination of every action and proceeding.”

Rec. Doc. 167 at 3 (quoting Fed. R. Civ. P. 1) (internal quotation

marks omitted). Plaintiff retorts that filing a motion for

reconsideration eighteen months after the original ruling was

necessary because discovery was ongoing. See Rec. Doc. 170 at 2.

For reasons that defendant alludes to, there is disfavor for the

filing of dispositive motions for reconsideration on the eve of

trial. However, that does not render the motion untimely. While

questioning plaintiff’s reason for seeking relief over a year and

a half later, plaintiff filed the motion for reconsideration before

the deadline for submitting dispositive motions, and as stated

above, motions under Federal Rule of Civil Procedure 54(b) may be

filed at any time before final judgment. See Rec. Doc. 162 at 1;

Austin, 864 F.3d at 336. Accordingly, plaintiff’s motion was

timely.

C. The Court’s Ruling on Plaintiff’s Retaliation Claim

Plaintiff argues that reconsideration of this Court’s ruling

on defendant’s motion for summary judgment (Rec. Doc. 104) is

warranted “[i]n light of new evidence.” Rec. Doc. 166-1 at 5.4 A

motion to reconsider should not be granted on the basis of newly

discovered evidence unless: “(1) the facts discovered are of such

a nature that they would probably change the outcome; (2) the facts

alleged are actually newly discovered and could not have been

4 Additionally, plaintiff seems to suggest that her retaliation claim never

should have been decided on summary judgment because the claim requires

“judicial determination of subjective facts, such as Apache’s motive, intent,

good faith or knowledge, that call for credibility evaluations and the weighing

of testimony.” Rec. Doc. 166-1 at 7. However, there was no manifest error in

dismissing plaintiff’s retaliation claim on summary judgment. See, e.g., Brown

v. Wal-Mart Stores East, L.P., 969 F.3d 571, 574 (5th Cir. 2020) (affirming

dismissal of a Title VII retaliation claim on summary judgment); Feist v. La.,

Dept. of Just., Off. of the Att’y Gen., 730 F.3d 450, 454-55 (5th Cir. 2013)

(same); Ladner v. Walmart, Inc., 834 F. App’x 893, 897 (5th Cir. 2020) (same).

discovered earlier by proper diligence; and (3) the facts are not

merely cumulative or impeaching.” Infusion Res., Inc. v. Minimed,

Inc., 351 F.3d 688, 696-97 (5th Cir. 2003) (citing English v.

Mattson, 214 F.2d 406, 409 (5th Cir. 1954)). Plaintiff has the

burden of proving that consideration of any new facts “would

probably change the outcome” of the suit and that the facts are

“the type of ‘new evidence’ that a truly diligent litigant would

be powerless to unearth” prior to the original motion. Ferraro v.

Liberty Mut. Fire Ins. Co., 796 F.3d 529, 535 (5th Cir. 2015)

(first citing Diaz v. Methodist Hosp., 46 F.3d 492, 495 (5th Cir.

1995); and then citing Johnson v. Diversicare Afton Oaks, LLC, 597

F.3d 673, 677 (5th Cir. 2010)).

“To state a claim for retaliation under Title VII, a plaintiff

must show that “(1) he engaged in conduct protected by Title VII;

(2) he suffered a materially adverse action; and (3) a causal

connection exists between the protected activity and the adverse

action.” Cabral v. Brennan, 853 F.3d 763, 766–67 (5th Cir. 2017);

see also Thibodeaux-Woody v. Houston Cmty. Coll., 593 F. App’x

280, 285 (5th Cir. 2014) (stating the same standard for retaliation

claims pursuant to the Equal Pay Act). With defendant’s motion for

summary judgment, the parties agreed that the protected activity

at issue was plaintiff’s complaints and charges that Apache

discriminated against her. See Rec. Doc. 104 at 17-18. However,

defendant argued that “Apache played no part in the decision to

remove plaintiff from the Phillips 66 worksite,” that Apache was

“willing to place plaintiff on another assignment,” and that

plaintiff was terminated because she “took no steps to follow up

with Apache.” Id. at 17. Consequently, Apache was not the cause of

plaintiff’s alleged “materially adverse action.” See id. The Court

found that in her opposition memorandum, plaintiff did not provide

evidence that Apache, rather than Phillips 66, was responsible for

any materially adverse action. Id. at 18. Accordingly, in its Order

and Reasons at Record Document 104, this Court states that

plaintiff fails to make a prima facie showing for her retaliation

claim because, in part, “there is no countervailing evidence that

plaintiff’s removal from her last assignment was precipitated by

Phillips 66, not Apache.” Rec. Doc. 104 at 17-18.

Plaintiff contends that since August 12, 2020, when the Court

ruled on defendant’s motion for summary judgment, three items have

been “newly discovered” that support plaintiff’s claim for

retaliation: (1) Apache’s corporate deposition, (2) defendant’s

November 29, 2021 written responses, and (3) defendant’s February

15, 2022 production. See Rec. Doc. 166-1 at 9; Rec. Doc. 170 at 3-

7.5 Part of this newly produced discovery included a separation

5 In plaintiff’s motion for reconsideration, she also references two 2016

documents that she alleges support her retaliation claim. Rec. Doc. 166-1 at 9.

This evidence is not new—it was produced in 2019, four months before plaintiff

filed her opposition to defendant’s motion for summary judgment. Rec. Doc. 167

at 4. As these documents are not newly discovered, they could not support a

motion for reconsideration. See Becerra v. Asher, 921 F. Supp. 1538, 1548 (S.D.

Tex. 1996) (citing Waltman, 875 F.2d at 473-74) (“Evidence that was available

to a party at the time of the decision being challenged, but was not timely

notice from the Louisiana Workforce Commission certifying “that

the worker whose name and Social Security Number appear above has

been separated from work and that the above information is true

and correct.” Id. at 4. The information on the form includes that

plaintiff was “terminated/fired” for “failure to perform duties,

failure to report, violated company policies,” and was a

“disgruntled employee about her work task.” Id. The form lists

that her last day of work was October 23, 2016, and that her

“employee date of separation” was October 23, 2016. Id. Further,

defendant’s “employee separation form” states that one reason for

separation was that plaintiff was a “Disgruntled Employee about

her work task.” Id. at 8.

These documents directly contradict defendant’s assertions

that Apache “took no adverse action against plaintiff” and that

“Apache was willing to place plaintiff on another assignment, when

available; however, plaintiff took no steps to follow up with

Apache.” Rec. Doc. 78-2 at 9. They also contradict the statements

made by defendant’s corporate representative in defendant’s August

2021 deposition. See Rec. Doc. 170 at 4-5. This information seems

to suggest that a termination in October 2016 occurred because

plaintiff was a “disgruntled employee.” See Rec. Doc. 170-2 at 4,

8. However, ultimately, plaintiff has not carried her burden to

submitted, does not ordinarily qualify as newly-discovered evidence.”);

Atchafalaya Basinkeeper, 663 F. App'x at 294.

show that consideration of these new facts would probably change

the outcome of her suit. See Rec. Docs. 166-1, 170; Ferraro, 796

F.3d at 535. She merely states that “Defendant’s inconsistent

responses . . . create a credibility question and establishes a

genuine issue of material fact.” Rec. Doc. 170 at 5.

Moreover, even if plaintiff had demonstrated that the

evidence would probably change the outcome of her suit, plaintiff

has not met her burden of proving that the Louisiana Workforce

Commission documents “could not have been discovered earlier by

proper diligence.” See Ferraro, 796 F.3d at 535. On February 15,

2022, defendant’s counsel emailed plaintiff stating “Apache found

the attached documents that should have been produced along with

Ms. Dunn’s personnel file, and we are supplementing our production.

My apologies that it was not produced earlier, as we are just

seeing it for the first time as well.” Rec. Doc. 170-2 at 1.

Plaintiff fails to show that the Louisiana Workforce Commission

documents were previously unavailable to her via request or

subpoena by her directly to the Commission before the Court granted

summary judgment on plaintiff’s retaliation claim. Becerra, 921 F.

Supp. at 1548 (finding no newly discovered evidence because the

evidence in a newly produced affidavit was available to plaintiff

long before summary judgment was granted).

Plaintiff fails to explain whether these documents could have

been discovered through other means, and if so, why those means

were not pursued. See Rec. Doc. 170 at 4-5; Becerra, 921 F. Supp.

at 1548 (“Evidence that was available to a party at the time of

the decision being challenged, but was not timely submitted, does

not ordinarily qualify as newly-discovered evidence.”); Russ v.

Int’l Paper Co., 943 F.2d 589, 593 (5th Cir. 1991) (“[T]he

unexcused failure to present evidence which is available at the

time summary judgment is under consideration constitute a valid

basis for denying a motion to reconsider.”); Lopez v. City of

Biloxi, Miss., No. 1:03cv122WJG-JMR, 2006 WL 2255149, at *2 (S.D.

Miss. Aug. 6, 2006) (finding no newly discovered evidence because

plaintiff “has done nothing to show that the underlying facts

supporting his motion to reconsider were not within his knowledge

prior to the Court’s entry of judgment”). Accordingly, at this

time, the February 15, 2022 production has not been shown to

constitute “newly discovered evidence” warranting reconsideration

of the Court’s prior ruling.6

Plaintiff also suggests that the Court’s Order at Record

Document 104 merits reconsideration because defendant’s corporate

deposition and November 29, 2021 responses create an issue of

credibility, and thus, a genuine issue of material fact. See Rec.

Doc. 170 at 3-5. The underlying source documents from the

Commission could have been discovered earlier by proper diligence.

6 Whether the “newly discovered evidence” is merely cumulative or impeaching

does not seem to be at issue here. See Infusion Res., 351 F.3d at 696-97.

Plaintiff has not met her burden of proving these facts could not

have been discovered earlier by proper diligence and would probably

change the outcome of her suit. See Ferraro, 796 F.3d at 535. Thus,

plaintiff’s motion for reconsideration is dismissed.7

To the extent it is shown at trial that the “newly discovered

evidence” could not have been discovered earlier by proper

diligence and would probably change the outcome of plaintiff’s

suit, the previous decision (Rec. Doc. 104) remains subject to

further consideration at trial.

New Orleans, Louisiana this 17th day of March, 2022

SENIOR UNITED STATES DISTRICT JUDGE

7 In plaintiff’s reply in support of her motion for reconsideration, she

discusses at length whether the questions posed in Apache’s corporate deposition

were proper. See Rec. Doc. 170 at 7-10. The Court need not address these

arguments as it is irrelevant to whether the deposition constitutes newly

discovered evidence. It may be admissible for other purposes, e.g. impeachment.