Opinion
CIVIL ACTION NO. 02-6712
February 24, 2004
ORDER AND OPINION
I. Introduction
In this action, James Beverly, ("Beverly"), originally alleged that the Desmond Hotel and Conference Center, (the "Desmond"), was liable to him under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., for racial and religious discrimination in the form of failure to promote, retaliation, and termination. He also maintained that the Desmond was liable for the same acts under the ADEA, 29 U.S.C. § 621 et seq., for discrimination on the basis of age.
However, in two orders entered on the Desmond's motion for summary judgment, dated July 2, 2003, and September 25, 2003, Judge Dalzell dismissed all of Beverly's claims except for the claim of failure to promote on the basis of age, in violation of the ADEA. This case was subsequently transferred here by consent of the parties, and in accordance with 28 U.S.C. § 636(c).
Trial in this case was scheduled for the afternoon of Tuesday, January 20, 2004, with the jury to be chosen that morning. On the morning of January 20, 2004, however, I entered summary judgment in favor of the Desmond on the basis that Beverly could not prove any damages cognizable under the ADEA. Transcript of January 20, 2004, Hearing at 15-18; Order of January 20, 2004; Opinion of January 23, 2004.
Beverly has now filed a post-trial motion seeking to partially vacate Judge Dalzell's Orders of July 2, 2003, and September 25, 2003, as well as my Order of January 20, 2004. In his motion, Beverly claims that Judge Dalzell (a) was mistaken in concluding that Beverly had not exhausted his claim for retaliatory discharge with the EEOC before filing in this Court; (b) erred in ruling that he had not proven that he was subjected to a hosfile work environment because of his race; and (c) erred in finding he had not established a prima facie case of race-based discharge.
Beverly also maintains that I should have deemed his complaint as having asserted a claim under the Pennsylvania Human Relations Act, ("PHRA"), 43 Pa. C.S.A. § 951, et seq., for unlawful dismissal based on his age. If I had done so, I would not have granted summary judgment against him for lack of provable damages, since the compensatory damages which are unavailable under the ADEA may be recovered under the PHRA. Nevertheless, for the reasons set forth below, Beverly's motion will be denied.
II. Legal Standard
The standards controlling a motion for reconsideration are set forth in Federal Rule of Civil Procedure 59(e). Max's Seafood Cafe Ex Rel. Lou-Ann v. Ouinteros, 176 F.3d 669, 677 (3d Cir. 1999), citing Harsco. Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). "The purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence." Harsco, supra, at 909.
Generally, a motion for reconsideration will only be granted on one of the following three grounds: (1) there has been an intervening change in controlling law; (2) new evidence, which was not previously available, has become available; or (3) it is necessary to correct a clear error of law or to prevent manifest injustice. Max's Seafood, supra, at 677.
"Manifest" has been defined as describing something that is apparent, clear, indisputable, obvious or plain. Andreiu v. Ashcroft, 253 F.3d 477, 489 (9th Cir. 2001). A finding is `clearly erroneous' when, although there is evidence to support it, a reviewing court is left with the definite and firm conviction that a mistake has been committed. Anderson v. Bessemer City, 470 U.S. 564, 573 (1985).
Because a motion for reconsideration is appropriate only to address factual or legal matters that the court may have overlooked, it is improper to ask the court to rethink a decision it has already made.Gueson v. Feldman, 2001 WL 34355662 at *9 (E.D. Pa. Nov. 30, 2001);Armstrong v. Reisman, Civ. A. No. 99-4188, 2000 WL 288243 at *2 (E.D. Pa. Mar. 7, 2000); Glendon Energy Co. v. Borough of Glendon, 836 F. Supp. 1109, 1122 (E.D. Pa. 1993). Further, a party may not submit evidence which was available to it prior to the court's grant of summary judgment. Drake v. Steamfitters Local Union No. 420, Civ. A. No. 97-585, 1998 WL 564486 at *3 (E.D. Pa. Sep. 3, 1998).
As a last point, because of the court's and the parties' interest in finality, courts should grant motions for reconsideration sparingly.Vintage Grapevine, Inc. v. Mara, Civ. A. No. GO-2828, 2001 WL 940422 at * 1 (E.D. Pa. Aug. 6, 2001).
III. Discussion
A. Judge Dalzell's Decision that Beverly Had Not Exhausted His Claim for Retaliatory Discharge
After his discharge from the Desmond, Beverly filed a Discharge Questionnaire with the Pennsylvania Human Relations Commission ("PHRC"). He later filed a discrimination complaint with the PHRC that was dual-filed with the EEOC. Judge Dalzell's Order of July 2, 2003, at ¶ (d).
Judge Dalzell discussed this in considering whether Beverly's individual claims had been exhausted before the EEOC, as is required by both Title VII and the ADEA. Id. at ¶ (i), citing Ostopawicz v. Johnson Bronze Co., 541 F.2d 394, 398-99 (3d Cir. 1976). Beverly indicated in his Discharge Questionnaire that he had been subject to a retaliatory discharge. Id. at ¶ (j). However, he did not refer to retaliation in his dual-filed PHRA complaint. at ¶ (k). Judge Dalzell decided that inclusion in the questionnaire but not the complaint did not satisfy the exhaustion requirement since it would not give the Desmond notice of the retaliation claim. Id. at ¶¶(o) — (s). He cited Rogan v. Giant Eagle, Inc., 113 F. Supp.2d 777, 788 (W.D. Pa. 2000), in which the District Court for the Western District of Pennsylvania reached the same conclusion.
Beverly now seeks to distinguish Rogan This is not appropriate matter for a Rule 59 motion. Even though Beverly did not know that Judge Dalzell would cite Rogan in his Order, the case was easily available to either side, since it was decided in the year 2000. What is more, even if Rogan is distinguishable from the facts of this case, which is by no means clear, Beverly's argument would not rise to an allegation of a clear error of law, since Judge Dalzell did not "follow" Rogan As a District Court decision, Rogan was not binding upon Judge Dalzell, but was merely cited as in accord with his independent decision.
Beverly also argues that Judge Dalzell imposed the sort of "elaborate pleading requirements" for an EEOC charge which other courts have said are undesirable. He cites Philbin v. General Electric Capital Auto Lease, Inc., 929 F.2d 321 (7th Cir. 1991) and Steffan v. Meridian Life Insurance Co., 859 F.2d 537 (7th Cir. 1988), cert, denied 491 U.S. 907. Here again, this is a matter which Beverly could easily have raised in his response to the Desmond's motion for summary judgment. And, again, even if the cases cited would have compelled a different result here (which is also far from apparent), this would not show a clear error of law, since the Seventh Circuit cases cited are not binding.
B. The Dismissal of Beverly's Claims of Racially Hosfile Work Environment
It is even clearer here than with Beverly's first argument that the matter he has raised either was or could have been raised during briefing on the Desmond's motion for summary judgment. Judge Dalzell found that Beverly had not adduced sufficient evidence of a racially hosfile work environment to withstand summary judgment. Order of July 2, 2003, at ¶¶ (ee) through (kk). Here, Beverly simply argues the contrary.
This is nothing more than a request that the court rethink its earlier decision, which, as discussed above, is improper. Gueson v. Feldman, 2001 WL 34355662 at *9 (E.D. Pa. Nov. 30, 2001); Armstrong v. Reisman, Civ. A. No. 99-4188, 2000 WL 288243 at *2 (E.D. Pa. Mar. 7, 2000); Glendon Energy Co. v. Borough of Glendon, 836 F. Supp. 1109, 1122 (E.D. Pa. 1993).
Beverly argues that the question of whether a hosfile work environment existed should have been given to the finder of fact, and not decided by the judge. Nevertheless, in a motion for summary judgment concerning a Title VII claim of hosfile work environment, as in any other motion for summary judgment, the court will dismiss a claim where there is not enough evidence to permit a reasonable fact-finder to decide in favor of the plaintiff. See, e.g., Pittman v. Continental Airlines. Inc., 35 F. Supp.2d 434, 443 (E.D. Pa. 1999); Getz v. Commonwealth of PA Blindness and Visual Services, Civ. A. No. 96-7541, 1999 WL 768303 (E.D. Pa. Sep. 29, 1999); Seldomridge v. Uni-Marts, Inc., 2001 WL 771011 (D. Del. Jul. 10, 2001).
C. Race-Based Discharge
Similarly, Beverly has invited Judge Dalzell to reconsider his decision in favor of the Desmond on his claim that he was discharged because of his race. Judge Dalzell had decided that the evidence of race-based discharge was insufficient, whether it was evaluated under the standard set forth in McDonnell Douglas v. Green, 411 U.S. 792 (1973), or under the more plaintiff-friendly standard set forth in Price-Waterhouse v. Hopkins, 490 U.S. 228 (1989), as arguably permitted by the recent case of Desert Palace v. Costa. 539 U.S. 90 (2003).
In Desert Palace, the United States Supreme Court decided that circumstantial evidence was as acceptable as direct evidence in a "mixed-motive" case brought under Title VII. This has caused some uncertainty over the continued validity of the established distinction between a Title VII case based on direct evidence, now evaluated under the standard set forth in Price Waterhouse, and one based on indirect evidence, which is commonly held to the more demanding McDonnell Douglas standard. Because of this uncertainty, Judge Dalzell deferred his decision on Beverly's race-based discharge claim to give the parties an opportunity to brief the subject of the impact of Desert Palace on the motion for summary judgment. Order of September 23, 2003, at ¶ (c).
Beverly now argues that sufficient circumstantial evidence existed to permit his claim of race-based discharge to survive. Thus, he re-weighs the same facts which were already in evidence at the time Judge Dalzell decided the Desmond's motion for summary judgment, in light of the same law which existed then. Once again, therefore, he has raised an argument which is not cognizable here.
D. Beverly's Putative PHRA Claim of Failure to Promote on the Basis of Age
At the January 20, 2004, hearing, Beverly argued that his claim of age-based failure to promote incorporated by reference a claim under the PHRA. In my January 23, 2004, Opinion, I explained that I had rejected this argument for two reasons.
First, the language to which Beverly pointed could only with difficulty be interpreted as asserting a PHRA claim at all. It read: "The Defendant employer's termination of the Plaintiff's employment, as set forth above, in retaliation for the Plaintiff's pursuit of his rights under Pennsylvania law, constituted a wrongful termination in violation of the public policy of the State of Pennsylvania." Complaint at ¶ 59.
Secondly, the language, however interpreted, was not located in Count II, in which Beverly asserted discrimination on the basis of age, but in Count III, a count for wrongful discharge based on retaliation, which was dismissed by Judge Dalzell.
Beverly now argues that he should have been permitted to amend Count II of his complaint to allege a PHRA claim. Indeed, Judge Dalzell found that Beverly exhausted his claim of failure to promote on the basis of age before the PHRC. July 2, 2003, Opinion at ¶¶ (k) — (n).
However, Beverly never moved for leave to amend his complaint in this respect. He did not move for this amendment during the two years this case was pending. Neither did he move for it during argument before me on January 20, 2004, or in the supplemental brief he filed at the time of the hearing. Even now he has not asked for leave to amend. Beverly points out that leave to amend a complaint may be granted where the Fed.R.Civ.Pr. 15 standard is met, even after summary judgment has been granted against an opposing party. Newark Branch, NAACP v. Town of Harrison, New Jersey, 907 F.2d 1408, 1417 (3d Cir. 1990). However, there is no authority supporting the proposition that leave to amend must be granted where it has never been requested. Since Beverly has not pointed to a change in controlling law, new evidence, a clear error of law, or the need to prevent a manifest injustice with respect to my January 20, 2004, Order, no relief is available here.
Even if Beverly had moved for amendment after summary judgment was granted in favor of the Desmond, I would not have granted that motion. Where amendment is sought after a grant of summary judgment, the question of undue delay requires that a court focus on the movant's reasons for not amending sooner. Cureton v. National Collegiate Athletic Association, 252 F.3 267, 273 (3d Cir. 2001), citing Adams v. Gould, Inc., 739 F.2d 858, 863 (3d Cir. 1984), cert, denied, 469 U.S. 1122(1985). There is no apparent reason why Beverly did not seek amendment sooner.
The Cureton court based its holding on the well-acknowledged fact that when leave to amend is sought at that late stage, the interests in judicial economy and finally of litigation may be found particularly compelling. 252 F.3d 267, 273 (3d Cir. 2001). citing Dirson v. Chicago Car Exchange, 110 F.3d 481 789 (7th Cir. 1997). Humphreys v. Roche Biomedical Laboratories. Inc., 990 F.2d 1078, 1083 (8th Cir. 1982), andUnion Planters National Leasing, Inc. v. Woods, 687 F.2d 117, 121 (5th Cir. 1982); Dussouv v. Gulf Coast Investment Corp., 660 F.2d 594, 598 n. 2 (5th Cir. 1981).
IV. Conclusion
For the reasons set forth above, I now enter the following:
ORDER
AND NOW, this day of February, 2004, upon consideration of Plaintiff's Motion to Have This Honorable Court Vacate In Part Its Prior Orders Granting The Motions For Summary Judgment Previously Entered In This Case, docketed in this case as Document No. 48, and the response thereto, it is hereby ORDERED that Plaintiff's Motion is DENIED.