Muslow v. Louisiana State University and Agricultural and Mechanical College

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

KATHERINE MUSLOW, et al. CIVIL ACTION

VERSUS NO. 19-11793

BOARD OF SUPERVISORS OF SECTION M (2)

LOUISIANA STATE UNIVERSITY

AND AGRICULTURAL AND

MECHANICAL COLLEGE, et al.

ORDER & REASONS

Before the Court are three motions: (1) a motion for reconsideration filed by plaintiff

Meredith Cunningham;1 (2) a motion for reconsideration filed by plaintiff Katherine Muslow;2

and (3) a motion to strike filed by Cunningham and Muslow (together, “Plaintiffs”).3 Defendants

Board of Supervisors of Louisiana State University and Agricultural and Mechanical College

(“LSU”), Carlton “Trey” Jones, III, Thomas Skinner, Larry Hollier, and John Harman

(collectively, “Defendants”) respond in opposition.4 Plaintiffs reply in further support of their

motions.5 Having considered the parties’ memoranda, the record, and the applicable law, the Court

denies each motion.6

1 R. Doc. 460.

2 R. Doc. 461.

3 R. Doc. 481.

4 R. Docs. 470; 471; 472; 473; 474; 479; 489.

5 R. Docs. 497; 498.

6 In the motion to strike, Plaintiffs urge the Court to strike defendant Harman’s opposition to their motions

for reconsideration because (1) he filed it a day late without requesting leave to do so; and (2) “the opposition

memorandum contains no reference to supporting citations, as required by Local Rule 7.5.” R. Doc. 481 at 1-2. They

do not explain how they are prejudiced by Harman’s tardy filing. In response, Harman argues that “no prejudicial

effect has occurred or will occur, particularly considering that the opposition memoranda of the several co-defendants,

particularly Larry Hollier and Thomas Skinner – who were subjected to the identical causes of action as asserted

against Mr. Harman and whose pleadings argue, in almost identical fashion, the same bases in opposition to the

respective Motions for Reconsideration – were filed [timely], such that the plaintiff was acutely aware of all of the

arguments put forth on behalf of the respective defendants.” R. Doc. 489 at 2.

Although parties should pay heed to filing deadlines, whether established by rule or court order, this Court

does not find good grounds under the specific circumstances of this case to strike Harman’s opposition memorandum

I. PENDING MOTIONS

This case arises out of an employment dispute. The facts of this case have been discussed

at length in the Court’s prior Orders & Reasons.7 On May 24, 2022, the Court granted summary

judgment in favor of Defendants, dismissing all of Plaintiffs’ claims with prejudice.8 Plaintiffs

now move the Court to reconsider its May 24, 2022 Order & Reasons (the “May 24, 2022 O&R”).9

Because Plaintiffs’ motions are filed in the wake of final judgment,10 the Court treats them as

timely-filed motions under Rule 59(e) and Rule 60(b) of the Federal Rules of Civil Procedure.11

In their motions, Plaintiffs argue that “[t]he Court’s [May 24, 2022] decision undermines

th[e] fundamental value [of non-discrimination in pay], refuses to consider or engage in any

meaningful analysis of Plaintiffs’ record evidence overcoming summary judgment, bungles

summary-judgment procedure, and improperly elevates form over substance in contravention of

the very first rule of civil procedure.”12 They contend that the Court committed manifest errors of

law and fact when it: (1) inequitably applied procedural rules to Plaintiffs’ detriment;13 (2) “refused

to give weight” to cited evidence;14 (3) “improperly” credited Defendants’ nonretaliatory

where (1) Plaintiffs have not explained how they are prejudiced; (2) Harman’s arguments were all made by his co-

defendants in their timely-filed opp ositions to Plaintiffs’ motions for reconsideration; (3) Harman’s opposition is

uncomplicated and just two-and-a-half pages long; and (4) Harman’s opposition was filed not even 24 hours late.

Accordingly, Plaintiffs’ motion to strike is denied.

7 See, e.g., R. Doc. 451.

8 Id.

9 R. Docs. 460; 461.

10 R. Doc. 452.

11 See United States v. Trowbridge, 393 F. Supp. 3d 603, 609 n.7 (S.D. Tex. 2018) (“‘The Federal Rules of

Civil Procedure do not specifically provide for a motion for reconsideration, but courts in the Fifth Circuit may treat

motions for reconsideration as either a Rule 59(e) motion to alter or amend judgment or a Rule 60(b) motion for relief

from judgment.’”) (quoting Cardoni v. Prosperity Bank, 2014 WL 6473283, at *1 (S.D. Tex. Nov. 18, 2014)).

12 R. Docs. 460-1 at 1; 461-1 at 1. Plaintiffs each adopt the arguments set forth in the other’s motion for

reconsideration. R. Docs. 460 at 1 n.1; 461 at 1 n.1.

13 R. Doc. 461-1 at 3.

14 Id. at 5.

reasons;15 and (4) “failed to consider other conflicting testimony and evidence of unequal

treatment”16 and pretext.17

In opposition, Defendants argue that the motions: (1) impermissibly attempt to introduce

new arguments and evidence that existed at the time of the summary-judgment submission date;18

(2) constitute improper rehashing of arguments already rejected in the Court’s 84-page order;19

and (3) fail to show (a) that the Court’s order contains a manifest or obvious error of law or fact,

or is manifestly unjust,20 (b) new evidence,21 or (c) an intervening change in the controlling law

since the Court’s ruling.22

In reply, Plaintiffs maintain that they have articulated grounds for relief under Rule 59(e):

to correct a manifest error of fact or law and to prevent manifest injustice.23 They insist that they

“only refer to prior arguments and evidence [in their motions] because the Court explains that it

did not consider either in reaching its decision.”24 Plaintiffs then urge the Court to consider

evidence cited for the first time in their untimely surreply, which was not permitted to be filed.25

II. LAW & ANALYSIS

A. Rule 59(e) Standard

A Rule 59(e) motion to alter or amend a judgment after its entry calls into question the

correctness of the judgment. In re Transtexas Gas Corp., 303 F.3d 571, 581 (5th Cir. 2002). The

15 Id. at 13.

16 Id. at 19.

17 R. Doc. 460-1 at 3.

18 R. Docs. 473 at 25; 474 at 1

19 R. Docs. 473 at 25; 474 at 1.

20 R. Doc. 473 at 25.

21 R. Docs. 470 at 3; 474 at 3 (“Muslow does not present any newly discovered evidence – the entirety of her

arguments and evidence to which she cites were all readily available (and many already argued and cited) at the time

of filing her Opposition Memorandum.”).

22 R. Docs. 471 at 3; 474 at 3.

23 R. Doc. 497 at 1.

24 R. Doc. 498 at 2. Of course, the Court has never “explained” that it did not consider Plaintiffs’ arguments

and evidence but, instead, took pains to do so in its 84-page decision.

25 R. Doc. 497 at 5.

moving party must show that the motion is necessary to: (1) correct manifest errors of law or fact

upon which the judgment is based; (2) present newly discovered or previously unavailable

evidence; (3) prevent manifest injustice; or (4) address an intervening change in the controlling

law. See, e.g., Branch v. Lobello, 2022 WL 2132039, at *2 (E.D. La. June 14, 2022). “Rule 59(e)

permits a court to alter or amend a judgment, but it ‘may not be used to relitigate old matters, or

to raise arguments or present evidence that could have been raised prior to the entry of judgment.’”

Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008) (quoting 11 CHARLES ALAN WRIGHT

& ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2810.1, at 127-28 (2d ed. 1995));

see also In re Self, 172 F. Supp. 2d 813, 816 (W.D. La. 2001) (“A Rule 59(e) motion should not

be used to relitigate prior matters that should have been urged earlier or that simply have been

resolved to the movant’s dissatisfaction.”). Thus, a Rule 59(e) motion “‘is not the proper vehicle

for rehashing evidence, legal theories, or arguments that could have been offered or raised before

the entry of judgment.’” Rivera v. Garza, 2022 WL 2752224, at *1 (5th Cir. July 14, 2022)

(quoting Templet v. HydroChem Inc., 367 F.3d 473, 478-79 (5th Cir. 2004)).

In deciding the outcome of a Rule 59(e) motion to upset summary judgment granted on the

basis of a party’s failure to present evidence, the court must balance “two competing imperatives:

(1) finality, and (2) the need to render just decisions on the basis of all the facts.” Edward H.

Bohlin Co. v. Banning Co., 6 F.3d 350, 355 (5th Cir. 1993). Courts consider “the reasons for the

moving party’s default, the importance of the omitted evidence to the moving party’s case, whether

the evidence was available to the non-movant before she responded to the summary judgment

motion, and the likelihood that the nonmoving party will suffer unfair prejudice if the case is

reopened.” Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 174 (5th Cir. 1990),

abrogated on other grounds by Little v. Liquid Air Corp., 37 F.3d 1069 (5th Cir. 1994); see also

Templet, 367 F.3d at 478. And while a district court has considerable discretion to grant or deny

a Rule 59(e) motion, see Edward H. Bohlin Co., 6 F.3d at 353, the grant of such a motion is an

“extraordinary remedy that should be used sparingly.” Indep. Coca-Cola Emps.’ Union of Lake

Charles, No. 1060 v. Coca-Cola Bottling Co. United, Inc., 114 F. App’x 137, 143 (5th Cir. 2004).

B. Rule 60(b) Standard

“Federal Rule of Civil Procedure 60(b) permits ‘a party to seek relief from a final judgment,

and request reopening of his case, under a limited set of circumstances.’” Kemp v. United States,

142 S. Ct. 1856, 1861 (2022) (quoting Gonzalez v. Crosby, 545 U.S. 524, 528 (2005)). Those

limited circumstances are:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with reasonable diligence, could not have been

discovered in time to move for a new trial under Rule 59(b);

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or

misconduct by an opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released or discharged; it is based on an earlier

judgment that has been reversed or vacated; or applying it prospectively is no longer

equitable; or

(6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b). “This last option is available only when Rules 60(b)(1) through (b)(5) are

inapplicable. Even then, ‘extraordinary circumstances’ must justify reopening.” Kemp, 142 S. Ct.

at 1861 (quoting Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863 n.11, 864 (1988))

(internal citation omitted). To that end, relief under Rule 60(b)(6) “‘requires a showing of

“manifest injustice” and will not be used to relieve a party from the “free, calculated, and deliberate

choices he has made.”’” Rivera, 2022 WL 2752224, at *1 (quoting Yesh Music v. Lakewood

Church, 727 F.3d 356, 363 (5th Cir. 2013)).

C. Analysis

After considering Plaintiffs’ arguments under these standards, the Court is not persuaded

that relief is warranted. Plaintiffs have not demonstrated that the Court’s dismissal of their claims

rested on any manifest error of law or fact or that reconsideration is necessary to prevent manifest

injustice. Nor have they shown that any other circumstance warranting relief under Rule 59(e) or

Rule 60(b) applies. Rather, Plaintiffs admit that they only offer evidence and arguments that could

have been presented at the time they opposed the motions for summary judgment.26 See

Lavespere, 910 F.2d at 174. Therefore, their Rule 59 and 60 motions must be denied.

1. Manifest Errors of Law

Plaintiffs argue that the Court misapplied its legal analysis as to all claims asserted, thereby

committing manifest error of law.27 “[A] ‘manifest error’ is an obvious error that ‘is plain and

indisputable, and that amounts to a complete disregard of the controlling law.’” Wease v. Ocwen

Loan Servicing, L.L.C., 852 F. App’x 807, 809 (5th Cir. 2021) (quoting Guy v. Crown Equip.

Corp., 394 F.3d 320, 325 (5th Cir. 2004)). Plaintiffs have not begun to meet this standard. They

contend that the Court inequitably applied procedural rules, failed to consider applicable law when

conducting its comparator analysis, improperly relied on Defendants’ nondiscriminatory reasons

and affirmative defenses, and neglected evidence of pretext. In doing so, Plaintiffs inappropriately,

and in contravention of the Rule 59 and 60 standards, rehash arguments made in opposition to

Defendants’ motions for summary judgment (but rejected by the Court) or present arguments that

should have been made in opposing summary judgment. They do not show that the Court

committed a manifest error of law.

26 R. Doc. 497 at 4.

27 R. Doc. 498 at 6.

a. Application of procedural rules

Plaintiffs filed a motion for leave to file a 61-page omnibus surreply (along with 119 pages

of exhibits) approximately two months after the February 10, 2022 submission date for

Defendants’ motions for summary judgment.28 The Court denied the motion for leave to file an

omnibus surreply, reasoning that:

Plaintiffs make no effort to establish either (a) that defendants raised new

arguments in their reply memoranda that require a response, or (b) that Plaintiffs

have discovered new evidence that was not available to them at the time they filed

their oppositions. Allowing a surreply so long after the submission date flouts the

customary briefing schedule ....29

Plaintiffs did not seek reconsideration of the Court’s order denying them leave to file a surreply.

Now, Plaintiffs maintain that “[t]he Court’s inequitable application of procedural rules

deprived Plaintiffs the opportunity to correct their opposition memoranda [via the omnibus

surreply] in favor of a speedy determination, rather than one that is just.”30 Plaintiffs (who are

themselves lawyers) explain that they were not able to review and assess the opposition

memoranda submitted on their behalf on February 2, 2022, until March 7, 2022.31 But, once they

reviewed the memoranda, they say they “dismissed their trial counsel due to borderline inept

briefing on summary judgment [i.e., Plaintiffs’ opposition memoranda] and sought leave of Court

[a month later, on April 7, 2022,]32 to file the Omnibus Surreply in an effort to ameliorate the

citations to the record omitted from prior counsel’s memoranda and to address the new evidence

Defendants submitted with the replies.”33 The “surreply was neither belated nor unnecessarily

28 R. Doc. 473 at 3.

29 R. Doc. 442 at 1-2.

30 R. Doc. 461-1 at 3.

31 R. Doc. 497 at 2-3.

32 Id. at 4.

33 R. Doc. 461-1 at 3. The Court found that Plaintiffs failed to establish that Defendants submitted new

evidence with or raised new arguments in their replies. R. Doc. 442 at 1-2.

cumulative of the summary judgment briefing the Court considered,”34 argue Plaintiffs, and so,

“[t]he Court should consider Plaintiffs’ efforts to correct deficient performance by their counsel as

a factor weighing in favor of reconsideration.”35 Plaintiffs contend that “[b]y depriving Plaintiffs

of the fair opportunity to address the merits” via their omnibus surreply, “this Court’s ruling omits

key material evidence and is not only erroneous but manifestly unjust.”36

A surreply is not the appropriate vehicle to shore up arguments or present evidence that

could have been presented in a timely fashion. It is not an opportunity for a do-over. The

extraordinary circumstances that are required to grant leave to file a surreply (e.g., new arguments

raised for the first time in a reply) have not been urged (much less established) by Plaintiffs here.

To achieve an orderly presentation of the parties’ respective positions, courts must establish and

enforce briefing schedules that accord the parties a fair opportunity to marshal their arguments and

evidence, and then to respond to the other side. But courts are not required to allow parties who

squander their opportunity another crack at it – especially two months after briefing had closed.37

Moreover, as Defendants correctly note, Plaintiffs did not seek reconsideration of the Court’s order

denying their motion for leave to file omnibus surreply.38 And so, the Court will not reconsider

that unchallenged order now, after judgment. As explained in more detail below,39 whatever facts

and citations were set forth in the surreply, which the Court found did not constitute newly

discovered evidence, are not part of the summary-judgment record. A counsel’s failure to present

evidence at the time of summary judgment is a valid basis for denying a subsequent motion for

reconsideration. See Templet, 367 F.3d at 479. Therefore, Plaintiffs fail to establish any manifest

34 R. Doc. 497 at 2-3.

35 Id. at 5.

36 R. Doc. 461-1 at 5.

37 Plaintiffs had already been provided additional time to file their oppositions to the motions for summary

judgment when the Court continued the submission date. R. Doc. 370.

38 R. Doc. 472 at 3.

39 See infra Section II(C)(2)(a).

error of law by the Court in denying leave for them to file their quite tardy surreply, especially

without justification and where the evidence attached was not already included in the summary-

judgment record.

b. Comparators

In its May 24, 2022 O&R, the Court determined that, “[b]ased on the summary-judgment

record before [it], Plaintiffs ha[d] not shown that they were treated less favorably than a similarly

situated male employee [i.e., a comparator].”40 Plaintiffs take issue with the Court’s analysis of

their alleged comparators, arguing that the Court failed to give weight to certain evidence and

apply the correct law. But Plaintiffs cannot establish that the Court made a manifest error of law;

instead, they merely rehash evidence and legal theories that could have been offered or raised at

the time their opposition memoranda were due.

First, Plaintiffs argue that the Court improperly assigned more weight to “position

descriptions” during its analysis of Plaintiffs’ proposed comparators than to the HSC’s Study and

resultant pay grades.41 The Court did not. The Court specifically addressed Plaintiffs’ arguments

regarding the 2017 Market Study and pay grades in two separate sections of its 84-page Order &

Reasons.42

Second, Plaintiffs contend that the Court’s failure to acknowledge the Gunaldo

memorandum was a manifest error of fact and law.43 “Gunaldo” was only mentioned twice in the

six opposition memoranda Plaintiffs submitted.44 In both instances, Plaintiffs refer to deposition

testimony of Sara Schexnayder, which is not in the summary-judgment record, wherein she

40 R. Doc. 451 at 17.

41 R. Doc. 497 at 9. Plaintif fs argue that “[t]here’s no reason to give preference to the [position descriptions]

LSU offered considering their deficiencies and the extensive 2017 Study and paygrades the HSC created.” R. Doc.

460-1 at 23. “HSC” stands for Health Sciences Center.

42 R. Doc. 451 at 32-34, 40-41.

43 R. Doc. 461-1 at 11.

44 R. Docs. 396 at 21; 402 at 20.

allegedly states that she did not know Gunaldo’s job family.45 Even after reviewing all of the cited

evidence in each opposition memorandum, none directs the Court to a Gunaldo memorandum.46

As noted, the law imposes no duty on district courts to sift through the record in search of evidence

to support a party’s opposition to summary judgment.47 And so the Court did not err. That said,

Plaintiffs contend in their motions that the memorandum stood for the proposition that pay grades

established comparators.48 The Court considered this meritless argument in two separate sections

of the May 24, 2022 O&R, and it found that the pay grades did not establish comparators under

the applicable law.49

Third, Plaintiffs argue that the Court erred in its failure to apply 29 C.F.R. § 1620.13(d) or

29 C.F.R. § 1620.14(a) in determining whether Plaintiffs identified an appropriate comparator

under the EPA.50 Plaintiffs contend that the Court should have viewed Plaintiffs’ evidence through

the lens of “less pay for more work,” instead of “equal pay for equal work.”51 “Because [they]

presented evidence of ‘less pay for more work,’” say Plaintiffs, “they did not need to show their

job duties were identical52 to those of the higher-paid male employees – those positions required

less skill, effort, and responsibility.”53 Assuming that Plaintiffs presented summary-judgment

evidence of “less pay for more work” such that they satisfied the “similarly situated” prong of the

EPA analysis – which the Court can confidently say they did not upon reviewing the scarce record

45 R. Docs. 396 at 21; 402 at 20.

46 See R. Docs. 387; 388; 3 91; 396; 400; 402.

47 R. Doc. 451 at 69 n.292.

48 R. Doc. 461-1 at 10-11.

49 R. Doc. 451 at 32-34, 40-41.

50 R. Doc. 497 at 7.

51 Id. at 8.

52 Plaintiffs mischaracterize this standard. To establish a prima facie case under the EPA, a plaintiff must

show that (1) her employer is subject to the EPA; (2) she performed work in a position requiring equal skill, effort,

and responsibility under similar working conditions; and (3) she was paid less than the employee of the opposite sex

providing the basis of comparison. Badgerow v. REJ Props., Inc., 974 F.3d 610, 617 (5th Cir. 2020). Plaintiffs need

not prove that their job duties were “identical” to that of their alleged comparators. And the Court did not hold them

to such a standard.

53 R. Doc. 497 at 8.

evidence cited in their oppositions – Plaintiffs’ EPA claims would still fail because they did not

raise a genuine issue of material fact as to: (1) the individual defendants’ employer status;54 and

(2) pretext.55

Fourth, Plaintiffs contend that Title VII requires a plaintiff to prove that her employer

discriminated against her with respect to her compensation because of her sex and, therefore, a

plaintiff need not identify a member of the opposite sex that holds an equal but higher paying job.56

Thus, Plaintiffs argue that “‘a claim for sex-based wage discrimination can be brought under Title

VII even though no member of the opposite sex holds an equal but higher paying job, provided

that the challenged wage rate is not based on seniority, merit, quantity or quality of production, or

any other factor other than sex.’”57 Even assuming Plaintiffs had identified proper comparators

and notwithstanding the fact that this is a new argument that could have been raised before entry

of judgment and, therefore, inappropriately raised in their instant motions such that the Court need

not entertain it for that reason alone, the Court specifically found that the challenged wage rate

was undisputedly based on factors other than sex.58 Once a defendant meets its burden of

production, as Defendants did, the burden shifts to the plaintiff to “substantiate his claim of pretext

through evidence demonstrating that discrimination lay at the heart of the employer’s decision.”

Price v. Fed. Express Corp., 283 F.3d 715, 720 (5th Cir. 2002). As described in the May 24, 2022

O&R, Plaintiffs’ Title VII claims failed at the pretext stage because Plaintiffs could not carry their

summary-judgment burden.59 Accordingly, Plaintiffs’ arguments that the Court committed

manifest error of law in conducting its comparator analysis fall far short of their mark.

54 R. Doc. 451 at 60-72.

55 Id. at 76.

56 R. Doc. 498 at 6-7.

57 Id. (quoting Lenzi v. Systemax, Inc., 944 F.3d 97, 110-11 (2d Cir. 2019)) (internal quotation marks omitted).

58 R. Doc. 451 at 41-43, 54, 74-75, 81.

59 Id. at 44, 55.

c. Affirmative defenses and nondiscriminatory reasons

In its May 24, 2022 O&R, the Court determined that Defendants not only offered

nondiscriminatory and nonretaliatory reasons for their employment actions, but also demonstrated

by a preponderance of the undisputed evidence that the wage differential was justified.60 Plaintiffs

disagree with the Court’s determination; however, they point to no manifest error of law that would

warrant reconsideration of the issue. Instead, Plaintiffs merely raise new arguments that could

have been made at the proper time.

Under Title VII, once a plaintiff establishes a prima facie case of discrimination, the burden

of production shifts to the defendant “to proffer a legitimate, nondiscriminatory reason for his

action.” Watkins v. Tregre, 997 F.3d 275, 281-82 (5th Cir. 2021) (citing Outley v. Luke & Assocs.,

Inc., 840 F.3d 212, 216 (5th Cir. 2016)). Similarly, once a plaintiff successfully establishes a

prima facie case of retaliation under either Title VII or the EPA, the burden then shifts to the

employer to introduce evidence of a legitimate, nonretaliatory reason for the adverse employment

action. Saketkoo v. Adm’rs of Tulane Educ. Fund, 31 F.4th 990, 1000 (5th Cir. 2022). For a

discrimination claim under the EPA, “‘[o]nce a plaintiff has made her prima facie case by showing

that an employer compensates employees differently for equal work, the burden shifts to the

defendant to’ show by a preponderance of the evidence that the differential in pay was made

pursuant to one of the four enumerated exceptions.” King v. Univ. Healthcare Sys., L.C., 645 F.3d

713, 723 (5th Cir. 2011) (quoting Siler-Khodr v. Univ. of Tex. Health Sci. Ctr. San Antonio, 261

F.3d 542, 546 (5th Cir.2001)). “Disparities in salary are allowed where payment is made pursuant

to ‘(1) a seniority system; (2) a merit system; (3) a system which measures earnings by quantity or

quality of production; or (4) a differential based on any other factor other than sex.’” Reznick v.

60 Id. at 74.

Associated Orthopedics & Sports Med., P.A., 104 F. App’x 387, 390 n.4 (5th Cir. 2004) (quoting

Plemer v. Parsons-Gilbane, 713 F.2d 1127, 1136 (5th Cir.1983)). Plaintiffs contend that

Defendants did not carry their burden. But they are wrong.

First, Plaintiffs argue that, with respect to Defendants’ burden to prove by a preponderance

of the evidence that the wage differential between each Plaintiff and her comparators is justified

under one of the four affirmative defenses set forth in the EPA, “[t]he onus was on Defendants to

prove a bona fide merit system,” and, absent that evidence, Defendants failed to prove an

affirmative defense under the EPA.61 This is a newly asserted argument that is inappropriate for

the Court to consider at this juncture. But, even so, the onus is not on a defendant to prove a merit

or seniority system. A defendant must show by a preponderance of the evidence one of the four

affirmative defenses set forth in the EPA: (1) a seniority system; (2) a merit system; (3) a system

which measures earnings by quantity or quality of production; or (4) any other factor other than

sex. See King, 645 F.3d at 723. And here, as the Court explained, Defendants demonstrated by

undisputed evidence that the wage differential was justified by “multiple valid defenses, including

a bona fide non-gender-based job classification program that does not discriminate on the basis of

sex,” which falls under the fourth affirmative defense set forth in the EPA (“any other factor other

than sex”).62

Second, Plaintiffs chastise the Court for accepting two of Defendants’ nonretaliatory

reasons for their termination, namely, that their termination was due to Plaintiffs’ (1) withdrawal

of their applications; and (2) failure to execute a contract before the effective appointment date.63

Plaintiffs argue that “Hollier and Martin testified that they both believed that Plaintiffs had been

61 R. Doc. 498 at 10; see also R. Doc. 497 at 9 (arguing that Defendants did not satisfy their burden of proof

to establish an affirmative defense b ecause there is no evidence of a bona fide merit or seniority system).

62 R. Doc. 451 at 75.

63 R. Doc. 461-1 at 15-16.

transferred to OGC [i.e., the Office of General Counsel] after January 1, 2019, implying that

Plaintiffs could have been administratively transferred with or without new applications or

‘employment contracts.’”64 This argument was not raised in Plaintiffs’ oppositions to Defendants’

motions for summary judgment and therefore is inappropriately raised now as grounds for a Rule

59 or 60 motion.65 That said, even if Plaintiffs could substantiate the claim that Hollier and Martin

believed that Plaintiffs had been transferred and that such belief implied that Plaintiffs could have

been transferred with or without new applications or employment contracts, the Court identified

multiple other nonretaliatory reasons for their termination.66 A defendant need only proffer one

nonretaliatory reason for its employment action. McCoy, 492 F.3d at 557 (citing Gee v. Principi,

289 F.3d 342, 345 (5th Cir. 2002)). And Defendants satisfied this burden. In addition to Plaintiffs’

withdrawal of their applications and failure to execute a contract before the effective appointment

date, another nonretaliatory reason for their termination was that the LSUHSC-NO general counsel

and staff attorney positions were retired in favor of new legal positions under the OGC.67

Third, Plaintiffs state that “[t]here is a genuine issue of material fact regarding the veracity

of Skinner’s concern about a ‘competitive process’ that cannot be resolved on summary

judgment.”68 This argument was not raised in Plaintiffs’ oppositions to Defendants’ motions for

summary judgment. The Court need not address it now. Moreover, Plaintiffs do not argue that

Skinner’s concern about the “competitive process” is newly discovered evidence. Accordingly,

Plaintiffs have not established that the Court committed manifest error of law in its analysis of

Defendants’ nondiscriminatory reasons and affirmative defenses.

64 Id. at 16. The Court expressly refrained from deciding whether the transfer occurred. R. Doc. 451 at 62

n.250.

65 See id. at 54.

66 Id. at 54, 81.

67 Id. at 54.

68 R. Doc. 461-1 at 22.

d. Pretext

In its May 24, 2022 O&R, the Court found that Plaintiffs failed to carry their summary-

judgment burden at the pretext stage.69 Now, Plaintiffs argue that “[m]uch of [their] evidence goes

to the question of pretext; none was considered by the Court.”70 But Plaintiffs are wrong. Their

failure to raise a genuine issue of material fact as to pretext cannot be attributed to the Court, but

instead is due solely to Plaintiffs’ want of citation to evidence in their opposition memoranda or

their reliance on facts that are not in the summary-judgment record.

First, the Court considered all cited evidence of pretext, which was quite thin. For example,

in Plaintiffs’ opposition to the motion for summary judgment filed on behalf of Skinner, there is

no evidence of pretext cited.71 Nor is any cited in Plaintiffs’ oppositions to the motions for

summary judgment filed on behalf of Hollier,72 Jones,73 or Harman.74 In Cunningham’s

opposition to LSU’s motion for summary judgment against her, she argues that “[i]t is clear that

‘but for’ [her] request for a salary review and her filing of the EEOC complaint, she would not

have been fired.”75 There is no evidence cited in support of this statement,76 nor is there any

further discussion of pretext – if the quoted material can even be characterized as such.77 In

Muslow’s opposition to LSU’s motion for summary judgment against her, she similarly argues

that “[i]t is clear that ‘but for’ [her] request for a salary review and her filing of the EEOC

complaint, she would not have been fired.”78 The evidence she cites in support – which is

69 R. Doc. 451 at 44-47, 55-58, 76, 81-82.

70 R. Doc. 460-1 at 5.

71 See R. Doc. 400.

72 R. Doc. 387.

73 R. Doc. 388.

74 R. Doc. 391 at 1.

75 R. Doc. 402 at 34.

76 Id. Cunningham fails to conduct any pretext analysis with respect to her Title VII claims and her EPA

discrimination claim. See R. Doc. 402.

77 See id.

78 R. Doc. 396 at 28.

Skinner’s testimony and an excerpt from an expert report – was not enough to carry her summary-

judgment burden. Thus, the Court concluded that because Plaintiffs failed to (a) address each of

Defendants’ nondiscriminatory reasons, (b) present evidence of disparate treatment or facts that

cast doubt on the credence of Defendants’ stated justifications for the employment actions, or (c)

raise a genuine fact issue concerning whether Defendants’ stated reasons for Plaintiffs’ alleged

pay disparities and termination were pretextual, summary judgment in favor of Defendants was

warranted.79 Contrary to Plaintiffs’ present position, the Court considered the little evidence they

offered on the question of pretext but found it insufficient to forestall summary judgment.

Second, as discussed more fully below,80 any claim that Plaintiffs put forward evidence of

pretext in their omnibus surreply is insufficient because the late-filed surreply – and any evidence

attached to it – never made it into the summary-judgment record. Plaintiffs do not argue that this

undeveloped evidence of alleged pretext (which, they say, includes evidence of alleged subjective

pay decisions, failure to follow policies, changing stories, failure to investigate, atmosphere,

departure from standard procedure, hostility to gender equity, exclusion from office matters, and

failure of proof of job components)81 could not have been offered or raised before the summary-

judgment motions came under submission.82 Instead, they effectively concede that the evidence

was available to them before they responded to the summary-judgment motion83 and point the

finger at their former counsel, the attorney who submitted Plaintiffs’ opposition memoranda,

arguing, in part, that (1) they had to “cure previously-omitted citations to the summary-judgment

record”;84 and (2) the Court “should consider Plaintiffs’ efforts to correct deficient performance

79 See R. Doc. 451 at 46.

80 See infra Section II(C)(2 )(a).

81 R. Doc. 460-1 at 5-23.

82 Plaintiffs admit that they “only refer to prior arguments and evidence” that were available to them before

the motions came under submission. R. Doc. 497 at 4.

83 Id.

84 Id.

by their counsel.”85 But a Rule 59(e) motion “‘is not the proper vehicle for rehashing evidence,

legal theories, or arguments that could have been offered or raised before the entry of judgment,’”

Rivera, 2022 WL 2752224, at *1 (quoting Templet, 367 F.3d at 478-79), including the deficient

performance of counsel. Edward H. Bohlin Co., 6 F.3d at 357; Courtade v. Harrah’s Operating

Co., 2011 WL 2446454, at *2 (E.D. La. June 15, 2011) (“Negligence by the moving party’s

attorney does not generally constitute a valid excuse to reopen a case under Rule 59(e).”)

(quotation omitted). Moreover, a Rule 60(b)(6) “‘will not be used to relieve a party from the “free,

calculated, and deliberate choices he has made.”’” Rivera, 2022 WL 2752224, at *1; see also

Celino v. Biotronik, Inc., 2021 WL 4460338, at *3 (E.D. La. Sept. 29, 2021) (observing that

negligence or erroneous strategy choices of a party’s attorney, which contributed to dismissal of

the party’s claims, do not amount to manifest injustice). Plaintiffs’ failure to present evidence

which clearly existed at the time they filed their oppositions to summary judgment does not warrant

reconsideration of the May 24, 2022 O&R.

Even if Plaintiffs had established a prima facie case with respect to any of their claims,

which they did not, and even if the alleged evidence of pretext cited in the motions for

reconsideration86 were contemplated in Plaintiffs’ summary-judgment briefing or record, which it

was not, the “evidence” does not raise a genuine issue of fact as to each of Defendants’

nondiscriminatory reasons. None of the putative “examples of pretext” offered by Plaintiffs

addresses, for example, Defendants’ proffered nondiscriminatory reason for termination that

Muslow and Cunningham did not apply for their respective OCG positions and withheld their

85 Id. at 5. Curiously, Plaintiffs make this accusation against just one of the counsel who represented them at

the time their oppositions to summa ry judgment were filed, but not the other, who continues to represent them and

whose name appears in the signature block of all their opposition memoranda.

86 R. Doc. 460-1 at 5-23.

permission to treat either of them as an applicant.87 And “‘[w]here, as here, the employee fails to

adduce evidence refuting a rational, non-discriminatory reason articulated by the employer, pretext

cannot be established by the subjective belief that the illegitimate criterion gender motivated the

employer’s decision.’”88 Plaintiffs’ evidence simply fails to show that the nondiscriminatory and

nonretaliatory reasons Defendants proffered were false.89 So, for this additional reason, Plaintiffs

fall well short of meeting the standard for a Rule 59(e) or 60 motion.

Third, Plaintiffs assert that the Court’s alleged “assigning [to] Plaintiffs the burden of

disproving Defendants’ EPA affirmative defenses” is the sort of “manifest error” appropriate to

trigger reconsideration under Rule 59(e).90 More specifically, they argue that “the Court erred by

placing the burden on Plaintiffs to disprove Defendants’ affirmative defenses to their EPA claims,”

and “requiring Plaintiffs to show ‘pretext.’”91 In its May 24, 2022 O&R, the Court stated that

Plaintiffs offered no evidence that Defendants’ nondiscriminatory reasons were based on sex and,

so, Plaintiffs did not establish pretext.92 This was admittedly imprecise shorthand for explaining

that Plaintiffs’ “arguments” to establish a genuine issue of material fact as to whether the purported

reasons (i.e., affirmative defenses under the EPA) were pretextual were insufficient to carry their

summary-judgment burden. The Court did not hold Plaintiffs to the standard of disproving

Defendants’ affirmative defenses to the EPA claims, but rather, the Court analyzed the summary-

judgment record before it and determined that no genuine issue of material fact as to whether

Defendants’ purported reasons were pretextual had been raised93 where Plaintiffs merely (1)

asserted that “[n]o one at LSUHSC-NO considered whether the compensation paid any individual

87 R. Doc. 451 at 43.

88 Id. at 46 (quoting Pippins v. Tangipahoa Par. Council, 2004 WL 1575410, at *9 (E.D. La. July 13, 2004)).

89 See id. at 44-47.

90 R. Doc. 497 at 10.

91 R. Doc. 498 at 7.

92 R. Doc. 451 at 76.

93 Id.

was in compliance with LSU’s policies and the law”; (2) addressed Muslow’s job performance;

and (3) failed to respond to the argument in support of a nondiscriminatory reason for the pay

disparity.94 Accordingly, Plaintiffs’ arguments that the Court committed manifest error of law in

its pretext analysis are meritless.

c. Retaliation

In the May 24, 2022 O&R, the Court dismissed Plaintiffs’ claims of retaliation. Plaintiffs

now argue that, in doing so, the Court committed manifest error of law, but each of the alleged

errors concerns either a previously litigated argument that is merely rehashed, a new argument that

could have been raised before, or a misunderstanding of the May 24, 2022 O&R. In no case is

reconsideration warranted.

First, Plaintiffs accuse the Court of failing to consider Skinner’s February 18 email

rescinding Plaintiffs’ contracts as the “operative act of retaliation” and, instead, “inexplicably uses

the EEOC complaint as the operative act of retaliation.”95 But Plaintiffs have misread the Court’s

May 24, 2022 O&R. Under the McDonnell Douglas framework, the plaintiff-employee asserting

retaliation claims under Title VII and the EPA96 has the initial burden of establishing a prima facie

case of retaliation by showing (1) that she engaged in activity protected by Title VII; (2) that an

adverse employment action occurred; and (3) that a causal link existed between the protected

activity and the adverse employment action. Saketkoo, 31 F.4th at 1000. In analyzing Plaintiffs’

prima facie case, the Court addressed the February 15, 2019 request for a salary review and the

March 26, 2019 EEOC charge as protected activities, even though Plaintiffs did not clearly identify

94 Id. at 76, 81.

95 R. Doc. 461-1 at 14.

96 See R. Doc. 451 at 77 (“The analysis of an EPA retaliation claim mirrors that of a Title VII retaliation

claim.”).

the “protected activity” they claimed was at issue.97 Then, the Court concluded that there was no

dispute that Plaintiffs suffered an adverse employment action.98 Adding the February 18 email to

the mix (even though Plaintiffs failed to brief it adequately) does not alter this conclusion and the

Court’s subsequent analysis that the retaliation claims could not survive. The Court determined

that the Plaintiffs’ retaliation claims failed at the pretext stage and their present futile effort at

deflection does not shake the Court’s analysis in this respect, especially given Plaintiffs’ admission

of their “borderline inept briefing.”99

Second, Plaintiffs argue that their “request for a salary review w[as] quintessentially

protected conduct and Defendants’ decision to withdraw their contracts is retaliation under Title

VII and the EPA.”100 Plaintiffs rehash an argument made previously, which the Court concluded

was meritless.101

Finally, Plaintiffs state that “[a] defendant cannot justify its retaliation based on something

that occurs after its illegal retaliation.”102 Plaintiffs did not make this argument before,103 so they

have waived any right to do so now. Regardless, a cursory review of the Court’s analysis reveals

that it was not bottomed solely on acts occurring after retaliation. The decision to retire the

LSUHSC-NO general counsel and staff attorney positions antedated the February 18 action.

Accordingly, Plaintiffs have not established that the Court committed a manifest error of law

regarding its retaliation analysis.

97 Id. at 49.

98 Id. at 53 n.235.

99 R. Doc. 497 at 4.

100 R. Doc. 461-1 at 24.

101 R. Doc. 451 at 57.

102 R. Doc. 461-1 at 15 (emphasis omitted).

103 See R. Docs. 387 at 21; 388 at 10; 391 at 1-4; 396 at 27-28; 400 at 27-32; 402 at 33-34.

2. Manifest Errors of Fact

Plaintiffs also charge the Court with committing several manifest errors of fact. Plaintiffs

must establish, then, that the Court’s errors are “‘are plain and indisputable” and “amount[] to a

complete disregard of the controlling law.’” Wease, 2021 WL 1604694, at *2 (quoting Guy, 394

F.3d at 325). This they cannot do. Plaintiffs argue that the Court has improperly weighed

evidence, misconstrued the order of events, and made erroneous conclusions of fact. But their

contentions are just a guise for rehashing evidence that could have been offered at the summary-

judgment phase and for expressing their disapproval with the Court’s determinations. Importantly,

“‘[w]hatever may be the purpose of a motion for reconsideration[,] it should not be supposed that

it is intended to give an unhappy litigant one additional chance to sway the judge.’” Pitts v. City

of Madison, 2018 WL 1075729, at *1 (S.D. Miss. Feb. 27, 2018) (alterations in original omitted)

(quoting Atkins v. Marathon LeTourneau Co., 130 F.R.D. 625, 626 (S.D. Miss. 1990)). And so,

while Plaintiffs are undoubtedly unhappy with their briefing submitted at summary judgment and

with the May 24, 2022 O&R, they fail to show that the Court committed a manifest error of fact.

a. Evidence

Plaintiffs complain that the Court did not address its cited materials. Rule 56(c) of the

Federal Rules of Civil Procedure requires that Plaintiffs support their opposition memoranda to

Defendants’ motions for summary judgment by citing to materials in the record, such as

depositions, documents, or stipulations, to establish that a genuine issue of disputed fact exists. If

Plaintiffs had come forward with supporting evidence to show that a material fact was in dispute,

the burden would have shifted to Defendants to demonstrate the inadequacy of the evidence

Plaintiffs relied upon, but this did not occur. With little to no citation to record evidence, Plaintiffs’

“support” for establishing their prima face case for their claims and for raising a genuine issue of

material fact as to Defendants’ nondiscriminatory and nonretaliatory reasons, affirmative defenses,

and pretext was insufficient for Plaintiffs to meet their burden as the non-movants on summary

judgment. Now, Plaintiffs ask the Court to reexamine its ruling on the motions for summary

judgment in light of evidence that could have been submitted to support their oppositions to the

motions for summary judgment but, instead, were attached to the late-filed surreply and now to

their Rule 59 and 60 motions.104 None of this evidence is in the summary-judgment record.

First, Plaintiffs argue that the evidence cited in the omnibus surreply “presents facts

sufficient to take the case to a jury.”105 But Plaintiffs make no argument that this evidence was

“newly discovered” or that it was previously unavailable. Rather, they admit that they base their

motions for reconsideration on “prior arguments and evidence” that was available to them pre-

judgment.106 But the Fifth Circuit has held that the unexcused failure to present evidence available

at the time of summary judgment is a valid basis for denying a motion to reconsider. Russ v. Int’l

Paper Co., 943 F.2d 589, 593 (5th Cir. 1991); see also Knight v. Kellogg Brown & Root Inc., 333

F. App’x 1, 8 (5th Cir. 2009) (“[T]he plaintiffs fail to adequately explain why they did not obtain

these documents before summary judgment, and ‘an unexcused failure to present evidence

available at the time of summary judgment provides a valid basis for denying a subsequent motion

for reconsideration.’”) (quoting ICEE Distribs., Inc. v. J & J Snack Foods Corp., 445 F.3d 841,

847-48 (5th Cir. 2006)) (alteration omitted). And Plaintiffs make no claim that the newly cited

evidence in their surreply or Rule 59 and 60 motions was unavailable at the time they opposed

summary judgment – in other words, when it should have been presented.

104 R. Doc. 497 at 7.

105 Id.

106 Id. at 4.

Second, in an understandable but misguided effort to shift blame from their own filings,

Plaintiffs assert that the Court refused to accept evidence cited in their opposition memoranda. For

example, Plaintiffs state that the Court neglected Skinner’s “undisputed testimony ... that Plaintiffs

complained to [him] on February 15, 2019 about unequal pay at the HSC and, because of their

complaint, he rescinded their offers the next business day.”107 This testimony constitutes direct

evidence, say Plaintiffs.108 But the Court did consider the evidence, as described in detail in its

May 24, 2022 O&R.109 Then, Plaintiffs take issue with the Court’s difficulty in locating testimony

from Skinner’s deposition (which resulted from Plaintiffs’ miscitation to it) when determining

whether Plaintiffs’ beliefs about gender-pay disparity were objectively reasonable.110 What

Plaintiffs fail to recognize, though, is that regardless of Skinner’s alleged testimony, the Court

assumed in its analysis that Plaintiffs’ beliefs were objectively reasonable, thus making the “issue”

Plaintiffs now raise of no import.111 Next, Plaintiffs express their disapproval of the Court for not

taking it upon itself to dig through exhibits where no specific page or paragraph was referenced in

Plaintiffs’ citations. They argue that the generally cited material, which included two affidavits,

was not lengthy, implying that the Court could have and should have sifted through it.112 But a

court does not have a duty to sift through the record in search of evidence to support a party’s

opposition to summary judgment.113 Consequently, Plaintiffs’ argument is unavailing to either (1)

relieve Plaintiffs of their burden to support each claim with specific evidence; or (2) call for

107 R. Doc. 461-1 at 14.

108 Id.

109 R. Doc. 451 at 47-58.

110 R. Docs. 497 at 7 (citing R. Doc. 451 at 51); R. Doc. 498 at 4; see also R. Doc. 461-1 at 8 (stating that the

Court refused to accept Skinner’s testimony that he took Muslow’s salary request to mean that there was potentially

a pay disparity between males and females).

111 R. Doc. 451 at 51 (“Nevertheless, the Court will assume that Plaintiffs’ salary review request was

objectively reasonable such that it constitutes protected activity.”).

112 R. Docs. 461-1 at 10; 498 at 4.

113 R. Doc. 451 at 69 n.292.

reconsideration. In any event, the Court did in fact read the affidavits and cited specific statements

found in them in its May 24, 2022 O&R.114

Third, Plaintiffs argue that “the Court’s 84-page order and reasons offer[s] zero insight into

how it concluded that Plaintiffs’ evidence did not support so much as an inference in favor of any

of their discrimination or retaliation claims.”115 Plaintiffs’ hyperbole notwithstanding, the Court

reviewed all the evidence Plaintiffs did cite and thoroughly explained why it did not satisfy their

summary-judgment burden. None of Plaintiffs’ arguments meets either the Rule 59(e) or Rule

60(b) standard for establishing that the Court committed a manifest error of fact.

b. Order of events

Plaintiffs state that “the Court adopts incorrect assertions as fact and misapplies summary

judgment procedure” because, for example, the Court mistook the order of certain events. Without

citation, Plaintiffs argue that “Donna [Dewailly, the OGC business manager,] emailed Plaintiffs

on January 18, after they met with Jones and Skinner, not before. Likewise, Muslow responded

to Defendants’ March 1 email the same day, rather than March 6 as stated by the Court.”116

Whether the January 18 email was sent shortly before or after the meeting is immaterial where the

timing of this email had no effect on or is addressed in the Court’s analysis. Moreover, that

Muslow responded to an email the same day it was received, as opposed to five days later, is

likewise immaterial.117 The Court’s judgment was not based on this order of events, see Markel

Am. Ins. Co. v. Diaz-Santiago, 674 F.3d 21, 32 (5th Cir. 2012) (observing that a Rule 59(e) motion

114 Id. at 67-68 n.281.

115 R. Doc. 461-1 at 5.

116 R. Doc. 498 at 2; but see R. Doc. 400 at 11 (Plaintiffs’ opposition to Skinner’s motion for summary

judgment, which stated that Plaintiffs responded to the March 1 termination email on March 6).

117 See R. Doc. 451 at 8.

may be granted to correct manifest error of fact upon which the judgment is based), and, therefore,

the Court did not commit a manifest error of fact.

c. Conclusions

Plaintiffs argue that the Court committed manifest error in making various conclusions.

Many of their “arguments,” however, are merely expressions of disapproval with the Court’s

determinations with respect to the summary-judgment record. Because a Rule 59(e) or Rule 60

motion should not be used to simply express the movant’s dissatisfaction with the Court’s

resolution, Plaintiffs present no grounds that warrant the extraordinary relief the rules provide. See

In re Self, 172 F. Supp. 2d at 816.

First, Plaintiffs argue that evidence shows conflicting testimony as to when the date of

Plaintiffs’ transition to the OGC occurred, which would require a credibility determination to

resolve, so the Court’s resolution of the issue was not proper at summary judgment.118 But, the

Court did not resolve the issue. Instead, the Court specifically noted that whether the transfer

occurred is disputed, but was not material to its decision.119 Undeterred by consistency, Plaintiffs

go on to complain that the Court, when determining Skinner’s employer status, declined to resolve

whether Plaintiffs transferred to OGC.120 Plaintiffs again ignore the fact that the Court decided

Skinner’s employment status independent of the transfer.121 In other words, notwithstanding

transfer, Skinner is not Plaintiffs’ employer.122

Second, Plaintiffs take issue with the Court’s determination that the termination of the

LSU-HSC positions was inevitable, stating that “[t]he Court assumes too much from the few

118 R. Doc. 461-1 at 18.

119 R. Doc. 451 at 62 n.250.

120 R. Doc. 498 at 5.

121 R. Doc. 451 at 62-65.

122 Id.

emails in the record on the topic.”123 Plaintiffs assert that “[n]o one discusses retiring anyone’s

positions or[] even[] administratively transferring Plaintiffs or their positions to the OGC; on the

contrary, Hollier explicitly disclaims the possibility of Plaintiffs’ positions being eliminated.”124

They contend that “the first time in the record that elimination of Plaintiffs’ positions arises is in

Skinner’s March 1[, 2019] email.”125 But as the Court explained in the May 24, 2022 O&R:

Plaintiffs have not established that “but for” their salary request, their termination

would not have occurred. See Garcia [v. Pro. Contract Servs, Inc.], 938 F.3d [236,]

243 [(5th Cir. 2019)]. In December of 2018, months before Plaintiffs’ salary

request, LSU had in place a plan to terminate their LSUHSC-NO positions in favor

of new positions under the OGC. Defendants then met with Plaintiffs in January

of 2019 – again, weeks before the salary request – to discuss the transfer of their

positions to OGC in light of PM-72, which provided that only attorneys employed

in or through the OGC could represent LSU on legal matters. Termination of the

LSUHSC-NO positions was inevitable under PM-72. Plaintiffs’ failure to execute

the tendered employment contracts with OGC or to apply for the new OGC

positions – despite being prompted and invited to do so multiple times – cemented

their termination. Thus, while there may be several “but for” reasons for Plaintiffs’

termination, none of those reasons is their alleged protected activity.

Put differently, even if Plaintiffs’ subsequent request for a salary review played a

part in their termination (which cannot be said on this summary-judgment record),

“no liability for unlawful retaliation arises if the employee would have faced that

discipline even without the protected conduct.” Wantou [v. Wal-Mart Stores Tex.,

L.L.C.], 23 F.4th [422,] 437 [(5th Cir. 2022)]. LSU had floated its plan to retire

Plaintiffs’ positions as early as August 2018, and started the process in December

2018, so that all legal resources could be consolidated under the OGC. Thus,

Plaintiffs’ termination from their LSUHSC-NO positions was inevitable even

without the protected conduct.126

Plaintiffs’ contention that “[n]o one discusses retiring anyone’s positions or[] even[]

administratively transferring Plaintiffs or their positions to the OGC”127 is patently contradicted

by the summary-judgment record.

123 R. Doc. 461-1 at 12.

124 Id.

125 Id. (emphasis omitted).

126 R. Doc. 451 at 57-58 (footnote citations to summary-judgment record omitted).

127 R. Doc. 461-1 at 12.

In a similar vein, Plaintiffs charge the Court with “accept[ing] without evidence

Defendants’ contention that they ‘planned to retire’ Plaintiffs’ positions as early as 2018.”128 But,

say Plaintiffs, “Defendants’ own evidence shows, at the time, they ‘knew of no effort to eliminate

positions.’”129 Plaintiffs cite to an August 7, 2018 email from Hollier wherein he writes that he

“kn[e]w of no effort to eliminate [Plaintiffs’] positions” in response to Muslow’s email asking if

her position would be eliminated or taken away with the advent of the integration of all legal

services through the OGC.130 Hollier was likely reassuring Muslow that she would not lose her

job with LSU (had she simply executed her employment agreement), but he was certainly not

countermanding LSU’s avowed plan. Regardless, that LSU planned to retire the two LSUHSC-

NO pre-consolidation attorney positions was expressly contemplated in LSU’s December 10, 2018

revision of Permanent Memorandum-72, which stated that “[o]nly attorneys employed in or

through the Office of General Counsel [which Plaintiffs were not] may represent the University

on legal matters. University employees with legal degrees but working outside of the Office of

General Counsel are not authorized to provide legal advice to or on behalf of the University.”131

In accordance with Permanent Memorandum-72, which is certainly evidence of LSU’s plan, LSU

would have to retire the positions of Plaintiffs, who worked at a separate, non-OGC entity.

Plaintiffs thus cannot establish that the Court committed a manifest error of fact on this score

either.

128 R. Doc. 498 at 3.

129 Id. (citing R. Doc. 372-4 at 101).

130 R. Doc. 372-4 at 101 (cited by the Court in its May 24, 2022 O&R).

131 R. Doc. 372-5 at 3.

3. Manifest Injustice

Notwithstanding their failure to identify a manifest error of law or fact, Plaintiffs allege

that reconsideration is necessary to prevent manifest injustice.132 Plaintiffs, however, do not

explain what manifest injustice would result if the Court declined to reconsider its May 24, 2022

O&R. Because Plaintiffs have not shown that the Court committed a manifest error of law or fact,

and cannot show manifest injustice, their motions must be denied.

Few cases discuss the manifest injustice standard. Hanover Ins. Co. v. Superior Lab.

Servs., Inc., 2017 WL 3582385, at *5 (E.D. La. Aug. 18, 2017). And while “[t]here is no general

definition of manifest injustice,” Bender Square Partners v. Factory Mut. Ins. Co., 2012 WL

1952265, at *4 (S.D. Tex. May 30, 2012), it is clear that “[e]stablishing a manifest injustice is a

high hurdle; ‘a showing of such requires that there exists a fundamental flaw in the court’s decision

that without correction would lead to a result that is both inequitable and not in line with applicable

policy.’” In re Trevino, 633 B.R. 485, 507 (Bankr. S.D. Tex. 2021) (quoting Bender Square

Partners, 2012 WL 1952265, at *4) (internal citation and alteration omitted). Courts evaluate

manifest injustice on a case-by-case basis. Bender Square Partners, 2012 WL 1952265, at *4.

“‘A party may only be granted reconsideration based on manifest injustice if the error is apparent

to the point of being indisputable. In order for a court to reconsider a decision due to manifest

injustice, the record presented must be so patently unfair and tainted that the error is manifestly

clear to all who view it.’” Id. (quoting In re Roemmele, 466 B.R. 706, 712 (Bankr. E.D. Pa. 2012))

(alteration omitted).

“Importantly, ‘there is no manifest injustice for purposes of a Rule 59(e) motion where a

party could easily have avoided the outcome, but instead elected not to act until after a final order

132 R. Doc. 497 at 1.

had been entered.’” Id. (quoting In re Enron Corp. Secs., Derivative & ERISA Litig., 2011 WL

3489599, at *5 (S.D. Tex. Aug. 9, 2011)) (alterations omitted). “Nor is there manifest injustice ‘if

the only error the movant seeks to correct is a poor strategic decision.’” Id. (quoting In re Cusano,

431 B.R. 726, 734 (B.A.P. 6th Cir. 2010)). Again, “the negligence or erroneous strategy choices

of a party’s attorney or the party herself, which contributed to the court’s dismissal of the party’s

claims, do not amount to manifest injustice.” Courtade, 2011 WL 2446454, at *4 (collecting

cases). And so, “‘Rule 59(e) does not require a court to rescue parties from the consequences of

their own choices.’” Hanover Ins. Co., 2017 WL 3582385, at *6 n.39 (quoting Zarcone v. United

States, 2004 WL 2196560, at *2 (N.D. Cal. Sept. 27, 2004)).

Plaintiffs have not begun to show that there exists a “fundamental flaw” in the Court’s

decision, nor can it be said that the Court committed any “indisputable” error. Plaintiffs could

have timely provided evidence in support of their oppositions to Defendants’ summary-judgment

motions, but, despite having a team of counsel and both Plaintiffs being attorneys, they elected not

to do so. Compounding that failure, they then neglected to (1) review their counsel’s opposition

memoranda until a month after submission; (2) take action until two months after the submission

date in a misguided attempt to correct their counsel’s work via the late-filed surreply; and (3)

express any disagreement with the Court’s order denying their motion for leave to file the surreply

until well after the Court’s order granting the motions for summary judgment had been entered. A

Rule 59(e) or 60(b) motion is not the proper vehicle to rehash arguments, legal theories, and

evidence that was, as Plaintiffs concede here, readily available to them at the time their oppositions

to summary judgment were due. Nor is it the proper vehicle to attempt to correct their counsel’s

alleged mistakes. And so, Plaintiffs have not identified any basis for concluding that

reconsideration of the May 24, 2022 O&R is necessary in order to prevent manifest injustice.

In short, absent a showing of manifest error of law or fact upon which the judgment is

based, newly discovered or previously unavailable evidence, manifest injustice, an intervening

change in the controlling law, mistake, inadvertence, surprise, or excusable neglect, fraud,

misrepresentation, or misconduct by an opposing party, or that the judgment is void or has been

satisfied, released or discharged, there is no justification for the extraordinary relief Plaintiffs seek.

Therefore, Plaintiffs’ motions must be denied.

III. CONCLUSION

Accordingly, for the foregoing reasons,

IT IS ORDERED that Plaintiffs’ Rule 59 or 60 motions (R. Docs. 460; 461) are DENIED.

IT IS FURTHER ORDERED that Plaintiffs’ motion to strike (R. Doc. 481) is DENIED.

New Orleans, Louisiana, this 17th day of August, 2022.

________________________________

BARRY W. ASHE

UNITED STATES DISTRICT JUDGE