# Smith v. Glasscock

> District Court, M.D. Alabama · March 9, 2021

URL: https://www.frixlaw.com/law-library/cases/9987233

## Case

- **Court:** District Court, M.D. Alabama
- **Decided:** March 9, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

ALLISON P. SMITH, )
)
Plaintiff, )
)
v. ) CIVIL ACT. NO. 2:18-cv-870-ECM
) (WO)
TOMMY GLASSCOCK, )
)
Defendant. )

MEMORANDOM OPINION AND ORDER

I. INTRODUCTION
In the post-notice pleading era, pretrial management does “away with [the] old
sporting theory of justice and substitute[s] a more enlightened theory of putting the cards
on the table, so to speak, and keeping surprise tactics down to a minimum.” In re Novak,
932 F.2d 1397, 1403 (11th Cir. 1991) (citing Clark v. Pennsylvania R.R., 328 F.2d 591,
594 (2nd Cir. 1964)). After several opportunities to lay all her cards on the table, Allison
Smith (“Plaintiff”) argued at a conference—days before the trial itself—that she still had a
card in her hand that neither the Court nor Tommy Glasscock (“Defendant”) knew about.
Her final card was a § 1983 Equal Protection wage discrimination claim that she claimed
to have pled and later preserved in the pretrial order. This came as a surprise to both the
Court and the Defendant. When the Plaintiff tried to lay this final card on the table, the
Court explained that her § 1983 wage discrimination claim had never been pled in her
complaint, and, even if it had, the time for making the Court aware of it had passed. The
Court, therefore, declined to permit Smith an opportunity to try a § 1983 wage
discrimination claim that had not been pled. On November 20, 2020, Allison Smith filed
a motion asking this Court to reconsider its “dismissal” of her § 1983 wage discrimination

claim, (doc. 102), which Tommy Glasscock argues was never pled, (doc. 104). The Court
stands by its ruling. For the following reasons, the Plaintiff’s motion to reconsider is
DENIED.
II. STANDARD OF REVIEW
Motions for reconsideration are extraordinary remedies and therefore should be

used sparingly. Cobra Int'l, Inc. v. BCNY Int'l, Inc., 2016 WL 7486722, at *1 (S.D. Fla.
Aug. 12, 2016). Fed. R. Civ. P. 54(b) states “any 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.”
This has been understood to give the district court “plenary power” over its interlocutory

orders. Barnes v. S. Elec. Corp. of Mississippi, 2020 WL 5503641, at *2 (M.D. Ala. Sept.
11, 2020) (citing Toole v. Baxter Healthcare Corp., 235 F.3d 1307, 1315 (11th Cir. 2000)).
Therefore, at its discretion, a court can modify or vacate non-final orders at any point before
final judgment. Spellman v. Haley, 2004 WL 866837, at *2 (M.D. Ala. Feb. 22, 2002)
(citing Fed. R. Civ. P. 54(b)). Because Rule 54(b) provides an avenue to challenge the

finality of a court’s orders, reconsideration “is appropriate only in very limited
circumstances . . . .” Cobra Int'l, Inc., 2016 WL 7486722, at *1.
Fed. R. Civ. P. 54(b) does not specify grounds for considering a motion for
reconsideration of non-final orders. Instead, courts grant motions for reconsideration upon
a showing of good cause. McGuire v. Murphy, 285 F. Supp. 3d 1272, 1278 (M.D. Ala.
2018); see also Chapman v. AI Transport, 229 F.3d 1012, 1023–24 (11th Cir.2000). Like
circumstances justifying relief under Fed. R. Civ. P. 59(e) or 60, in the past, courts have

recognized an intervening change in controlling law, the need to correct clear error,
preventing manifest injustice, or ensuring the efficient deposition of the case as appropriate
reasons for a court to modify its non-final orders. Id. Motions for reconsideration may not
present “new legal theories or raise legal arguments that could have been raised
previously.” In re Employment Discrimination Litig. Against State of Alabama, 2006 WL

2841081, at *1 (M.D. Ala. Oct. 2, 2006). The movant must do more than simply restate
his or her previous arguments, and any arguments the movant failed to raise in the earlier
motion will be deemed waived. See McCoy v. Macon Water Authority, 966 F. Supp. 1209,
1223 (S.D.Ga.1997).
III. FACTS

The Plaintiff originally filed a complaint in this case on October 9, 2018. (Doc. 1).
She brought twelve causes of action against the Chilton County Board of Education,
Tommy Glasscock, and the seven members of the Chilton County Board of Education
individually. (Id.). Four counts were exclusively against the Board of Education; seven
counts were alleged against “all defendants”; and two counts were brought solely against

Glasscock. (Id.). In the “Section 1983 – Fourteenth Amendment (Equal Protection)” claim,
the Plaintiff pled that “[d]efendants denied Plaintiff equal protection to be free from
discrimination and harassment in the workplace.” (Id. at 26).1
On December 5, 2019, the Chilton County Board of Education and all the individual

board members were dismissed upon joint stipulation by the parties. (Doc. 36). Thereafter,
the only claims that remained were against Glasscock.
On January 6, 2020, Glasscock moved for summary judgment on claims asserted
against him individually and those against “all defendants,” which included Glasscock. So
the Defendant moved for summary judgment on Equal Pay Act (“EPA”), Fair Labor

Standards Act (“FLSA”), Breach of Contract, Quantum Merit, Unjust Enrichment, the Tort
of Outrage, § 1983 Fourteenth Amendment (Equal Protection), and the Invasion of Privacy
and Assault and Battery claims against Glasscock individually. (Doc. 38). In response to
the § 1983 Equal Protection claims, the Defendant argued the “supervisory authority over
the Plaintiff does not convert the alleged sexual harassment into state action.” (Doc. 39 at

17; see generally 16–19).
On May 8, 2020, this Court issued its order on the motion for summary judgment.
(Doc. 48). In that order, the Court dismissed all the claims except the § 1983 Fourteenth
Amendment Equal Protection claim and the state assault and battery claims. The Court
dismissed the pay related claims on the basis that Glasscock was sued in his personal

capacity and, therefore, could not be held liable under the FLSA or EPA as an employer.
(Id. at 6–8). However, the Court found that there was “sufficient evidence to support a

1 References to page numbers will be to those generated by CM/ECF.
finding that Glasscock abused the authority given to him by the State to harass Smith.” (Id.
at 11). The Court later noted that Smith’s argument for “gender discrimination . . . is
unclear,” but it “appears to arise from her Equal Protection violation theory,” which the

Court clarified is “premised on sexual harassment.” (Id. at 19, n.2). The Court concluded
the Equal Protection claim against Glasscock in his individually capacity proceeded “on
the basis of sexual harassment . . . .” (Id. at 22).
On May 21, 2020, the Court conducted a pretrial conference with the Parties and
entered an order on the pretrial hearing the same day. (Doc. 58). In that order, the Plaintiff

described her § 1983 Fourteenth Amendment Equal Protection claim as “unlawful
discrimination and harassment because of sex.” (Id. at 2). And in the same order, the
Defendant explained, “[t]he claims against Glasscock in this trial are for sexual harassment
in violation of the Plaintiff’s right to equal protection . . . .” (Id. at 10).
On November 10, 2020—just days before the November 16 trial date—the Court

conducted a conference to discuss outstanding motions and trial procedure in light of the
COVID-19 pandemic. At that hearing, the Court noted that after reviewing the pretrial
submissions it appeared as though the Plaintiff was attempting to raise a § 1983 wage
discrimination claim that had not been previously pled or included in the pretrial order.
The Plaintiff strenuously argued before the Court that she had pled a § 1983 wage

discrimination claim and had preserved it in the pretrial order. (Doc. 110 at 37–48). The
Court explained that no § 1983 wage discrimination claim was before the Court. (Id. at 48–
49).
The next day, both Parties agreed to continue the trial because of the COVID-19
pandemic. (Doc. 96).
On November 20, 2020, the Plaintiff filed a motion to reconsider the Court’s

“dismissal” of the wage discrimination claims. (Doc. 102).
IV. DISCUSSION
In her motion to reconsider, the Plaintiff moves this Court to “reconsider its
dismissal of Plaintiff’s Section 1983 wage discrimination claim.” (Doc. 102 at 1). She
argues that the Court should grant her motion to reconsider for three reasons. First, she

argues that she properly pled a § 1983 wage discrimination claim and enough supporting
facts. (Id. at 1–6). Next, she alleges that the Defendant failed to move for summary
judgment on her § 1983 wage discrimination claim. (Id. at 6–10). And as a correlative
argument, she also notes that the Court’s description of her claim in its order on summary
judgment as “premised on sexual harassment” did not constitute a dismissal. (Id. at 10).

Finally, she argues that she preserved her claim in the pretrial order. (Id. at 10–12).
The Defendant argues that the Plaintiff did not plead a wage discrimination claim
in her complaint. And even if she did, the Plaintiff did not preserve her wage discrimination
claim in her pretrial order. (Doc. 104).
The Plaintiff’s motion to reconsider is vague on what grounds the Court should

reconsider that there is no wage discrimination claim. The Plaintiff simply calls on this
Court to use its “plenary power” to amend its interlocutory order. (Doc. 102 at 12).
Because the Plaintiff does not point the Court to any new developments of law or new
evidence in general, the Court will assume that the Plaintiff believes that this Court should
consider its motion on the basis of “clear error or manifest injustice.” See Murphy, 285
F.Supp.3d at 1278. Mindful that motions to reconsider are an “extraordinary remedy” that
should be granted in “very limited circumstances,” the Court will consider each of the

Plaintiff’s objections and the Defendant’s respective responses in turn. See BCNY Int'l,
Inc., 2016 WL 7486722, at *1.
A. The Plaintiff’s complaint does not contain a § 1983 wage discrimination
claim against Glasscock.

In her motion to reconsider, the Plaintiff argues that she adequately pled a claim for
§ 1983 wage discrimination against Glasscock. (Doc. 102 at 1). She directs the Court to
“Count VI Section 1983 – Fourteenth Amendment (Equal Protection)” of her complaint
where she alleges that she was denied “equal protection to be free from discrimination and
harassment in the workplace.” (Doc. 102 at 5). She also points the Court to twenty-six
non-sequential factual paragraphs from her complaint that she argues support a § 1983
wage discrimination claim. (Id. at 1–4). Between the factual paragraphs and the word
“discrimination” in the § 1983 Equal Protection claim, she argues that she pled “a short
and plain statement of the claim showing that the pleader is entitled to relief” in compliance

with Fed. R. Civ. P. 8(a)(2). (Id. at 5). And therefore, she argues the Defendant had notice
of her claim and failed to move for dismissal of her wage discrimination claim under Fed.
R. Civ. P. 12(b)(6) for failing to state a claim. (Id. at 6).
In response, the Defendant argues that he was not required to move to dismiss a
wage discrimination claim under § 1983 because the claim was never pled. (Doc. 104 at

1). The Defendant reminds the Court that, even after multiple reviews, the Court itself
could not find a § 1983 wage discrimination claim against Glasscock. (Id. at 1–2). And to
permit such a claim to proceed now, the Plaintiff would be allowed to benefit from her
vague pleading that did not put the Defendant on notice of the claim at the outset of the

litigation. (Id. at 7).
Fed. R. Civ. P. 8(a)(2) requires “[a] pleading that states a claim for relief must
contain . . . a short and plain statement of the claim showing that the pleader is entitled to
relief.” This portion of Rule 8 has been understood to avoid civil cases “turning on
technicalities” and “to require that the pleadings discharge the function of giving the

opposing party fair notice of the nature and basis of the grounds of the pleader’s claim.” 5
CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE §
1215, pp. 172–73 (3d ed. 2004). The Supreme Court and all the circuit courts have
described this notice function as “represent[ing] the core of the pleading process under the
federal rules.” Id. at 173–74. Courts have recognized that plaintiffs have “considerable

latitude regarding the mode of stating a claim for relief, provided the pleading gives
reasonable notice of the claims that are being asserted.” Id. at § 1216, p. 234. The Eleventh
Circuit has further explained that these rules require “the pleader to present his claims
discretely and succinctly, so that [ ] his adversary can discern what he is claiming and frame
a responsive pleading . . . .” Weiland v. Palm Beach Cty. Sheriff's Office, 792 F.3d 1313,

1320 (11th Cir. 2015).
Here, the Plaintiff argues that the word “discrimination,” coupled with the twenty-
six non-sequential paragraphs in her complaint, were enough to adequately provide notice
to Glasscock of a § 1983 wage discrimination claim. To support this contention, the
Plaintiff reminds the Court that “an employment discrimination claim [need] not contain
specific facts establishing a prima facie case of discrimination,” and “[i]t is clear that there
is no heightened pleading standard” as it relates to cases governed by 8(a)(2), including

civil rights complaints.” (Doc. 102 at 5–6) (citing Swierkiewicz v. Sorema N.A., 534 U.S.
506, 511–12 (2002); Randall v. Scott, 610 F.3d 701, 710 (11th Cir. 2010)). She also cites
Supreme Court and Circuit authority that it is inappropriate to dismiss a complaint “for
[an] imperfect statement of the legal theory” or that “it is unnecessary to set out a legal
theory for the plaintiff’s claim for relief.” (Doc. 106 at 5) (citing Johnson v. City of Shelby,

Miss., 574 U.S. 10, 10–11 (2014)).
Although the Plaintiff correctly states the federal pleading standards, she
misconstrues their application to the case at hand. The Court in Swierkiewicz v. Sorema
N.A. concluded that because the McDonnell Douglas standard was an evidentiary, not a
pleading standard, to give fair notice to the defendants of the nature of his claims, a plaintiff

was not required to plead all the elements of the prima facie case. 534 U.S. at 510–12. In
Johnson v. City of Shelby, Miss., the Supreme Court found that a district court could not
dismiss a plaintiff’s otherwise factually sufficient complaint because it failed to specifically
invoke 42 U.S.C. § 1983. 574 U.S. at 10–12. And the court in Randall v. Scott clarified,
in the wake of Iqbal, that a heightened pleading standard was no longer appropriate for

civil rights litigation. 610 F.3d at 710. In all these cases, the Supreme Court and court of
appeals reversed lower courts for dismissing cases based on pleading technicalities or for
requiring a heightened pleading standard. See Swierkiewicz, 534 U.S. at 513 (“No technical
forms of pleading or motions are required.”); Johnson, 574 F.3d at 711 (“[A] basic
objective of the rules is to avoid civil cases turning on technicalities.”); Scott, 610 F.3d at
10 (“[T]here is no heightened pleading standard as it relates to . . . Rule 8(a)(2).”). But
what also unifies these cases is that they survived dismissal because the complaints

otherwise put the defendants on enough notice of the nature of the claims, even in light of
technical pleading deficiencies. See Swierkiewicz, 534 U.S. at 513 (“Petitioner's complaint
easily satisfies the requirements of Rule 8(a) because it gives respondent fair notice of the
basis for petitioner's claims . . . .”); Johnson, 574 F.3d at 711 (“Having informed the city
of the factual basis for their complaint, they were required to do no more to stave off

threshold dismissal.”); Scott, 610 F.3d at 716 (“The allegations described in Randall’s
complaint are enough to state a claim for violation of his First Amendment rights . . .).”
This was not the case here. At its most basic level, the Plaintiff must allege enough
facts that “his adversary can discern what he is claiming and frame a responsive pleading.”
Weiland, 792 F.3d at 1320. This case is not about holding the Plaintiff to a higher pleading

standard or dismissing her case because of a technicality. The fundamental issue here is
whether the Plaintiff stated a claim for a § 1983 wage discrimination claim to provide
adequate notice to the Defendant. The simple answer is no. As discussed previously, the
dual aims of the pleading requirements are to avoid dismissal on technicalities and “to give
the opposing party fair notice of the nature and basis of the claims against him.” 5 WRIGHT

& MILLER, infra, § 1215, pp. 172–73. In her complaint, the Plaintiff pled, “the Defendants
denied the Plaintiff equal protection to be free from discrimination and harassment.” (Doc.
102 at 4–5) (citing Doc. 1 at 26). And to support her assertion that she indeed pled a wage
discrimination claim, the Plaintiff points to twenty-six non-sequential fact paragraphs from
the complaint. The Court has reviewed these paragraphs and concludes that they do little
to clarify that the Plaintiff was bringing both a § 1983 sexual harassment and a wage
discrimination claim. Especially considering the Plaintiff initially brought three other pay

related claims under the EPA, FLSA, and Title VII, the Court is unsurprised that there are
references to pay within the complaint. But without more specificity and a nexus between
the facts alleged and the § 1983 claim, the non-sequential paragraphs and the word
“discrimination” are insufficient to support a finding that the Plaintiff pled a § 1983 wage
discrimination claim.

Furthermore, when considering other sections of the complaint, the Court finds it
hard to believe that a wage discrimination claim was pled under § 1983. Upon review of
the Plaintiff’s original complaint—including those claims dismissed against the Chilton
County Board of Education and its members—it is clear that the Plaintiff knew how to
plead other pay related claims with enough specificity to put the Defendant and the Court

on notice. For example, the Plaintiff brought two claims against the Board of Education
under Title VII: one for “Title VII Sex Discrimination” and the other for “Title VII Sexual
Harassment.” (Doc. 1 at 19–22). The Court finds it telling that the Plaintiff bifurcated her
Title VII claims against the Board of Education into two separate counts. And specifically,
in the Title VII Sex Discrimination claim, the Plaintiff made clear she was bringing a wage

discrimination claim by pleading, “Defendant treated male employees more favorably in
the terms, conditions, and pay in their employment” and “Plaintiff was compensated
significantly less than similarly-situated male employees.” (Id. at 20). This is in stark
contrast to the Plaintiff’s § 1983 Equal Protection claim. There, the Plaintiff only stated
that the Defendant “denied Plaintiff equal protection to be free from discrimination and
harassment in the workplace.” (Id. at 26). And the only clarification of the nature of the
denial of equal protection was “[d]efendants were deliberately indifferent to Plaintiff’s

clearly established Constitutional and statutory rights.” (Id.). This is inadequate now and
was inadequate then to state a wage discrimination claim under § 1983.
B. The Defendant did not fail to move for summary judgment on the § 1983
wage discrimination claim because there was no § 1983 wage discrimination
claim on which summary judgment could be sought.

The Plaintiff argues that the Defendant failed to move for summary judgment on
Smith’s § 1983 wage discrimination claim and therefore, one persists. (Doc. 102 at 6).
Because the Defendant moved for summary judgment on the EPA and FLSA claims, the
Plaintiff argues that the Defendant was aware of a § 1983 wage discrimination claim.
According to the Plaintiff, by not moving for summary judgment on a § 1983 wage
discrimination claim, the Defendant forfeited his ability to do so. She also argues that she
did not realize that the Court, in its order on summary judgment, had “dismiss[ed] her
Section 1983 wage discrimination” when it noted that “the Equal Protection violation
theory . . . is premised on sexual harassment.” (Id. at 10).
1. The Defendant’s moving for summary judgment on the Plaintiff’s EPA and FLSA
claims does not establish that the Defendant was on notice of a § 1983 Equal
Protection wage discrimination claim.

The Court is unpersuaded that Defendant’s moving for summary judgment on the
EPA and FLSA claims means the Defendant was on notice of a § 1983 wage discrimination
claim. Although moving for summary judgment on the EPA and FLSA claims
demonstrates that the Defendant was aware of pay claims, it does nothing to show that the
Defendant had notice of a § 1983 Equal Protection wage discrimination claim.
It is apparent, upon examination of the Plaintiff’s complaint, why the Defendant

moved for summary judgment on these claims and not the alleged § 1983 wage
discrimination claim. In the EPA count, the Plaintiff connected the causes of action to
specific allegations of discriminatory pay. (Doc. 1 at 24–25). For example, under the EPA
claim, the Plaintiff alleges “Defendant compensated Plaintiff less than male employees in
positions requiring equal skills, effort, and responsibility under similar working

conditions.” (Id. at 24). No gender-based wage discrimination allegations appear in
connection to the § 1983 Equal Protection claim. (Id. at 26).
2. The evidence the Plaintiff points to in the record does not support an
independent § 1983 Equal Protection wage discrimination claim.

The Plaintiff also argues that “the Defendant wholly failed to move for summary
judgment on Smith’s Section 1983 claim . . . despite the existence of wage discrimination
evidence in the record.” (Doc. 102 at 8). The “wage discrimination” evidence the Plaintiff
cites to reads, “Glasscock testified that Smith performed the same Assistant
Superintendent/Personnel Director job duties at $39-40K per year that Walter Fenn had
performed at $88k per year.” (Id. at n.2). But the Plaintiff did not cite this fact in her
response in opposition to summary judgment in the context of a § 1983 wage
discrimination claim. The Plaintiff instead cited this fact in response to the Defendant’s
argument for summary judgment on the EPA claim. (Doc. 42 at 28).
Indeed, the Court finds it telling that if the Plaintiff was aware that the Defendant
did not move for summary judgment on a § 1983 Equal Protection wage discrimination
claim, nowhere—before the eve of trial—did she make that observation known to the

Defendant or the Court. The Defendant did not fail to move for summary judgment on a §
1983 wage discrimination claim because there was no such claim pled. The Plaintiff’s
arguments to the contrary are unavailing.
3. The Plaintiff cannot amend her complaint to bring a § 1983 Equal Protection
wage discrimination claim through argument.

Although both parties make reference to wage claims in their summary judgment
submissions—Plaintiff in her response and Defendant in his reply—those isolated
references were made prior to the dismissal of the Plaintiff’s wage claims under the EPA
and FLSA. None of those references in briefing evidenced a recognition that Plaintiff
asserted a § 1983 wage discrimination claim. Instead, they were made in the context of the
EPA and FLSA and at most revealed blurred lines between the various causes of action.
The dismissal of Plaintiff’s EPA and FLSA claims does not result in a wage claim
defaulting to the remaining cause of action. The Plaintiff failed to assert a wage claim

under § 1983 and when the EPA and FLSA claims were dismissed, no further wage claims
remained.
4. The Court clarified that a § 1983 Equal Protection discrimination claim was
only brought as sexual harassment in its order on summary judgment.

Finally, the Plaintiff argues that she did not recognize the Court’s footnote in the
intentional infliction of emotional distress section of the summary judgment order, (doc.
48 at 19, n.2), as an order dismissing her § 1983 wage discrimination claim. (Doc. 102 at
10). First, the Court did not dismiss the Plaintiff’s § 1983 wage discrimination claim
because one was never pled. The Court made clear in its discussion of the § 1983 Equal
Protection claim that the only claim before it was for sexual harassment. Specifically, the

order concluded that there was sufficient evidence to support a finding that “Glasscock
abused the authority given to him by the State to harass Smith” and specified that the
surviving federal claim was “for violation of Equal Protection on the basis of sexual
harassment.” (Doc. 48 at 11; 22). The Court’s order was a recognition of the claims pled,
which would proceed to trial, not a dismissal of a claim that the Plaintiff failed to plead.

C. Smith failed to preserve a § 1983 wage discrimination claim in the pretrial
order.

The Plaintiff argues that she preserved a § 1983 wage discrimination claim in the
pretrial order. In support of this argument, she points to six non-sequential paragraphs
from the pretrial order with bolded words and phrases to demonstrate where she believes
she preserved a § 1983 wage discrimination claim. (Doc. 102 at 11–12) (citing doc. 58 at
2–9). In response, the Defendant argues that there was no § 1983 wage discrimination
claim preserved in the pretrial order because no claim was ever pled. (Doc. 104 at 7–8).
The Defendant further points out that the pretrial order does not explicitly refer to a wage
discrimination claim under § 1983.
Fed. R. Civ. P. 16(d) provides that “[a]fter any conference under this rule, the court
should issue an order reciting the action taken. This order controls the course of the action
unless the court modifies it.” Further, “[t]he court may modify the order issued after a final

pretrial conference only to prevent manifest injustice.” Fed. R. Civ. P. 16(e). Because the
pretrial order “control[s] the subsequent course of the action,” it has been understood to
supersede the pleadings and establish the issues to be considered at trial. 6A CHARLES
ALAN WRIGHT & ARTHUR R. MILLER, MARY KAY KANE, FEDERAL PRACTICE AND

PROCEDURE § 1522, pp. 298–99 (3d ed. 2010). Therefore, “an issue is waived ‘by failing
to ensure that the issue is clearly preserved in the pretrial order,’” and “the pretrial order
has the effect of eliminating the remaining counts not included in the order.” FN Herstal
SA v. Clyde Armory Inc., 838 F.3d 1071, 1089 (11th Cir. 2016); State Treasurer of State of
Michigan v. Barry, 168 F.3d 8, 9–10 (11th Cir. 1999). The Eleventh Circuit has explained

that it is “particularly important for district courts to undertake the difficult, but essential,
task of attempting to narrow and define the issues before trial . . . [through] effective use
of pretrial orders.” Morro v. City of Birmingham, 117 F.3d 508, 515 (11th Cir. 1997). And
to advance this aim, district courts should not be forced into overbroad interpretations of
their orders “for fear of appellate correction.” Id. at 513. Therefore, the Circuit explained

that it will “not hesitate to back up district courts when they put steel behind the terms of
pretrial orders and hold parties to them.” FN Herstal SA v. Clyde Armory Inc., 838 F.3d
1071, 1090 (11th Cir. 2016) (citing Morro, 117 F.3d at 515). Accordingly, the Circuit will
only reverse when the district court “so clearly abused its discretion that its action could be
deemed arbitrary.” Morro, 117 F.3d at 513.

Even if one assumes that the Plaintiff adequately pled a claim for § 1983 wage
discrimination in her complaint, the Plaintiff did not preserve the claim in the pretrial order.
The non-sequential paragraphs with bolded text offered by the Plaintiff do little to
demonstrate that she preserved both a § 1983 sexual harassment and wage discrimination
claim in the pretrial order. As the Defendant points out, nowhere in the pretrial order does
the Plaintiff explicitly refer to a wage discrimination claim under § 1983. The Plaintiff
mentions “discrimination” several times in her pretrial contentions. But broadly alleging

“unlawful discrimination and harassment” and “Smith’s federally-protected rights to be
free from discrimination and harassment based on sex” do nothing to show that the Plaintiff
was indeed bringing a discrimination claim about her pay. (Doc. 58 at 2–3, 8). The Plaintiff
mentions “discriminatory pay” one time in her pretrial contentions and only in the context
of her recounting discussions with the Defendant complaining how she was underpaid. (Id.

at 8). This is insufficient to support a § 1983 wage discrimination claim. The Plaintiff also
did not raise any objections when the Defendant in his pretrial contentions explained, “[t]he
claims against Mr. Glasscock in this trial are for sexual harassment in violation of the
Plaintiff’s right to equal protection, and assault and battery.” (Id. at 10). The Plaintiff failed
to preserve any alleged § 1983 wage discrimination claim by not clearly articulating it in

the pretrial order.
Further, the Court finds it telling that the Plaintiff did bifurcate her § 1983 claims
into wage discrimination and sexual harassment in her proposed special interrogatories to
the jury, (doc. 85), but did not bifurcate them in the complaint, in her response to the motion
for summary judgment, or in the pretrial order. This is just another example of the Plaintiff

demonstrating an ability in other submissions to clearly differentiate claims made under
the same cause of action. And it supports the Defendant’s claim that § 1983 wage
discrimination claim was never pled and was instead an afterthought when the Plaintiff’s
pay claims were dismissed on summary judgment.
For the Court to find that the Plaintiff preserved a wage discrimination claim based
on three references to “discrimination” in the pretrial order would undermine the purpose
of the pretrial order itself. Rule 16 has been understood to work as a “vehicle for informing

the parties of precisely what is in controversy.” 6A WRIGHT, MILLER, KANE, infra, § 1522,
p. 298. The purpose of the pretrial conference and the pretrial order has been understood
to give parties an opportunity to “accurately appraise their cases and substantially reduce
the danger of surprise at trial.” Id. at 296. The Plaintiff failed to clearly articulate a § 1983
wage discrimination claim in the pretrial order. Accordingly, the Court declines to accept

the Plaintiff’s overbroad interpretation of the pretrial order and concludes that the Plaintiff
failed to preserve a § 1983 wage discrimination claim therein.
D. The Plaintiff has not shown good cause for this Court to grant her motion
to reconsider.

Despite multiple opportunities in the complaint, in summary judgment submissions,
and in the pretrial order, the Plaintiff did not plead a § 1983 wage discrimination claim
with any specificity to put the Court or Defendant on notice of it. The fact that no wage
discrimination will be tried to a jury is not a function of this Court’s action but is instead a
direct result of the [Plaintiff's] “failure to properly present her case.” Morro 117 F.3d at
516.
V. CONCLUSION
Accordingly, upon consideration of the motion and for good cause, it is
ORDERED that the Plaintiff’s motion to reconsider (doc. 102) is DENIED.

DONE this 9th day of March, 2021.

/s/ Emily C. Marks
EMILY C. MARKS
CHIEF UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9987233. Public record. Not legal advice.