Opinion
Case No. 97-4041-SAC
October 22, 2002
MEMORANDUM AND ORDER
This case comes before the court on the following motions: plaintiff's motion to compel defendant's cooperation (Dk. 241); supplemental motion to plaintiff's motion to compel defendant's cooperation (Dk. 242); plaintiff's motion for continuation of pay and all attendant benefits (Dk. 243); defendant's motion to alter or amend (Dk. 247); plaintiff's motion to alter or amend (Dk. 250); and plaintiff's supplemental motion to alter or amend (Dk. 254). Each motion has been responded to, and the court is now ready to rule.
The parties are well aware of the lengthy and somewhat convoluted history of this case, thus the court will not repeat it herein except as necessary to put the current motions in context. In May 2001, plaintiff tried her case pro se to a jury which found in her favor on her claim of retaliation and in defendant's favor on her claim of sex discrimination. Thereafter, the court entered judgment, ordering defendant to pay compensatory damages to plaintiff in the amount of $80,000, and to reinstate plaintiff. (Dk. 179).
The government requested a stay of the judgment pending appeal, (Dks. 186, 191), which the court granted in part by suspending the execution of the money judgment, but not the order of reinstatement. (Dk. 196, 198). Plaintiff was therefore placed in defendant's employment, and began receiving a salary. The government appealed the judgment (Dk. 190), but dismissed its appeal soon thereafter.
In accordance with the court's orders, plaintiff was paid front pay until the date she could be reinstated, then was paid a salary until her termination in July of 2002.
Plaintiff filed motions to enforce the court orders, both while the case was on appeal and after jurisdiction returned to this court, (Dk. 201, 204, 207, 210). In resolving those motions, the court on January 30, 2002, altered its previous judgment by withdrawing its order of reinstatement and ordering in lieu thereof that defendant pay to plaintiff $166,296.00 as front pay, plus post-judgment interest. (Dk. 211, 212).
Plaintiff timely moved to alter or amend that judgment, (Dk. 215, 216), but her motion was denied (Dk. 226, 227). Once again, the government requested and received a stay of the judgment pending appeal, (Dk. 239), appealed the judgment, (Dk. 233), but dismissed its appeal before any briefs were filed. (Dk. 244). Upon dismissing its appeal, defendant terminated plaintiff's reinstated employment, in accordance with the court's order to pay front pay in lieu of reinstatement. While this latter appeal was pending, and after the appeal was dismissed, the motions which are now before the court for resolution were filed.
Plaintiff's motion to compel defendant's cooperation
The court will first address defendant's "motion to compel defendant's cooperation to comply in determining and completing all back pay, benefits, interests, and all other issues not in the defendant's current appeal." (Dk. 241). This motion was filed while defendant's most recent appeal to the Tenth Circuit was pending.
In this motion, plaintiff generally complains of various disagreements with defendant stemming from its alleged "creative accounting," withholding of documents, and other matters necessary to resolve financial issues regarding plaintiff's pay and benefits during part of her period of reinstatement, and other matters. Plaintiff additionally accuses the USPS of harassment, retaliation, discrimination, and deprivation of entitlements and career advancement.
Defendant responds that it has complied with the court's prior orders regarding damages, and shows the court the manner in which it has done so. See Dk. 249, Exhs 1-10. Many of the matters about which plaintiff complains have been resolved by defendant since plaintiff filed this motion, or are encompassed in other motions currently before the court. The court thus denies this motion.
Motions regarding plaintiff's July 2002, termination
Plaintiff's motions numbered 242, 243, and 254 all center around the defendant's allegedly unlawful termination of plaintiff on or about July 30, 2002. On or about that date, defendant mailed to the Tenth Circuit its notice of dismissal of its appeal, which challenged the court's order of front pay in lieu of reinstatement. Defendant apparently notified plaintiff that because it was no longer appealing the court's order, plaintiff's employment was terminated immediately. Plaintiff alleges this termination was done without the notice and procedure normally required by defendant's own policies and regulations, and was thus unlawful, retaliatory and discriminatory.
The court disagrees. Defendant's notice of appeal divested this court of jurisdiction over the case. See, Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982). This court retained jurisdiction after the filing of a notice of appeal "over tangential matters [and] . . . `certain ministerial functions in aid of the appeal, such as . . . issuing stays or injunctions pending appeal.'" Stewart v. Donges, 915 F.2d 572, 575 n. 3 (10th Cir. 1990).
The defendant requested, and the court granted, a stay pending appeal. "The purpose of a stay is to preserve the status quo pending appellate determination. (Citations omitted.)" McClendon v. City of Albuquerque , 79 F.3d 1014, 1020-1021 (10th Cir. 1996). That stay had the effect of suspending the court's order of front pay in lieu of reinstatement, and of preserving the status quo of plaintiff working at her reinstated position, pending conclusion of the appeal.
A stay pending appeal remains in effect until issuance of the appellate court's mandate. See American Mfrs. Mut. Ins. Co. v American Broadcasting-Paramount Theatres, Inc., 17 L.Ed.2d 37(1966). The stay pending appeal automatically terminates when the mandate of the appellate court issues. Robinson v. Ralston, 642 F.2d 1077, 1083 n. 8 (7th Cir.), cert. granted, 452 U.S. 960, reversed on other grounds, 454 U.S. 201 (1981); Campbell v. Wood, 18 F.3d 662, 668 (9th Cir. 1994) (with issuance of mandate, stay pending appeal loses force and effect). The district court regains jurisdiction over the case upon issuance of the appellate court's mandate. Sgaraglino v. State Farm Fire Cas. Co., 896 F.2d 420, 421 (9th Cir. 1990).
Although the court understands plaintiff's bewilderment at having been employed one day and terminated the next without warning, nothing required the defendant to apply to this court for an order lifting the stay. Nor was defendant required to give plaintiff advance notice of the effect its dismissal of the appeal, and the resultant automatic lifting of the stay, would have. The practical result of the automatic termination of the stay was that the court's order of reinstatement was no longer in effect.
Therefore, defendant's acts in processing plaintiff's removal from her reinstated position, although surprising to the plaintiff, were not illegal, and do not give rise to either a separate cause of action or an independent basis for additional relief in this case. Plaintiff's removal from her employment on or about July 30, 2002, was required for compliance with this court's order that plaintiff be paid front pay in lieu of reinstatement. Because defendant acted in accordance with an express order of this court, defendant was not required to comply with the paperwork or other procedural matters which may normally be required for terminations which occur in the ordinary course of business. All of plaintiffs' motions relating to her allegedly unlawful termination on or about July 30, 2002, shall thus be denied.
Motions to Alter or Amend Front Pay
Both parties have filed motions to alter or amend a judgment under Rule 59(e). (Plaintiff's — Dk. 250; Defendant's — Dk. 247). Defendant's motion is brought under Rule 60(b) as well. These motions are focused upon the amount of front pay ordered on January 30, 2002, i.e., $166, 296. (Dk. 211, 212). Plaintiff asks the court to increase, and defendant asks the court to decrease, this amount which the court ordered defendant to pay to plaintiff in lieu of reinstatement.
As this court has explained in a previous order, its determination of the amount of front pay was based, in the absence of any other evidence introduced at trial, upon the amount of back pay plaintiff proved she earned in years past. This amount was $21,985.60 a year, which the court ordered to be paid for the next ten years. (Dk. 211). The court then offset against that amount the amount plaintiff could earn working part-time at a minimum wage job.
These 59(e) motions are untimely because they were filed more than ten days after entry of judgment. See Fed.R.Civ.P. 59(e), requiring that "any motion to alter or amend a judgment shall be filed no later than 10 days after entry of the judgment." The court shall nonetheless construe those motions as Rule 60(b) motions seeking relief from the judgment. See Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991) (stating that a motion not served within ten days "must be construed as one pursuant to Rule 60(b)") , cert. denied, 506 U.S. 828 (1992). Such motions may be filed more than ten days after entry of judgment. See Fed.R.Civ.P. 60 (motion must be made within a reasonable time and "not more than one year after the judgment, order, or proceeding was entered or taken."); Moore v. Williams, 23 Fed. Appx. 889, 891, 2001 WL 1420648, **1 (10th Cir. Nov. 14, 2001).
Relief under Rule 60(b) is limited to mistake, inadvertence, surprise, excusable neglect, newly discovered evidence, fraud, misrepresentation, a void judgment, a satisfied judgment, or "any other reason justifying relief from the operation of the judgment." Fed.R.Civ.P. 60(b). Pro se plaintiff cites to no specific subsection, but alleges that she has newly discovered evidence. Defendant relies upon subsections (b)(2), "newly discovered evidence," and 60(b)(6), "any other reason justifying relief from the operation of the judgment." "Relief under Rule 60(b)(6) may not be premised on one of the specific grounds enumerated in Rule 60(b)(1)-(5)." Harvey v. Yellow Freight System, Inc., 936 F. Supp. 790, 794 (D.Kan. 1996).
Relief under Rule 60(b) is extraordinary and limited to certain exceptional circumstances. Massengale v. Oklahoma Board of Examiners in Optometry, 30 F.3d 1325, 1330 (10th Cir. 1994); Bud Brooks Trucking, Inc. v. Bill Hodges Trucking Co. Inc., 909 F.2d 1437,1440 (10th Cir. 1990). "A litigant shows exceptional circumstances by satisfying one or more of Rule 60(b)'s six grounds." Van Skiver, 952 F.2d at 1243-44. Not a substitute for a direct appeal, a rule 60(b) motion addresses matters outside the issues on which the judgment was entered. Brown v. McCormick, 608 F.2d 410, 413 (10th Cir. 1979).
As this court stated in Nutter v. Wefald, 1996 WL 254651, *1 (D.Kan. April 25, 1996):
A rule 60(b) motion triggers consideration of the established policy in favor of final judgments. See Lee v. Village of River Forest, 936 F.2d 976, 978 (7th Cir. 1991) ("strong policy favoring the finality of judgments"). Rule 60(b) seeks to strike a delicate balance between two countervailing impulses: the desire to preserve the finality of judgments and the "incessant command of the court's conscience that justice be done in light of all the facts. (internal quotation marks and citations omitted). The district court has substantial discretion in deciding a Rule 60(b) motion. Pelican Production Corp. v. Marino, 893 F.2d 1143, 1145-46 (10th Cir. 1990). The court abuses its discretion when its actions are arbitrary, capricious, whimsical, without reason, or biased. Id.
Plaintiff's motion
Plaintiff contends that the amount of front pay should be based upon the higher pay she received when she worked in her reinstated position from December of 2001 through July of 2002, rather than the lower annual pay introduced into evidence at trial as back pay, and relied upon by this court as the basis for its order. According to plaintiff's assessment, using the higher rate of pay as a basis and extending it for ten years without any reduction for mitigation of damages would result in a front pay order of $538,149.80, rather than $166,296.00.
Plaintiff has previously raised this identical argument. The court rejected it by stating:
The court is bound to calculate front pay based upon the evidence admitted at trial, where both parties had full opportunity to address the issue, rather than upon documents attached to post-trial motions. Plaintiff had ample opportunity at trial to present evidence relating to the amount of pay a part-time flexible career carrier would earn today or in the future, but failed to do so. The court could do no other than to base its calculations upon the only evidence of record relating to the issue.
Dk. 226, p. 7.
By her motion to alter and amend, plaintiff essentially seeks a reconsideration of this ruling. "[A] party's failure to present his strongest case in the first instance does not entitle him to a second chance in the form of a motion to amend." Paramount Pictures Corp. v. Video Broadcasting Sys., Inc., No. 89-1412-C, 1989 WL 159369, at *1, 1989 U.S. Dist. Lexis 15684, at *2 (D.Kan. December 15, 1989). Motions to alter or amend should not be used to introduce evidence that was available at the time the court ruled on the motion but was not presented. See Wieberg v. Resthaven Gardens of Memory, Inc., 1991 WL 241815 at * 1 (D.Kan. Oct 29, 1991) (motions to alter and amend should not be used to introduce evidence that was available at trial but was not proffered). Nor should a motion to alter or amend be used as a vehicle for the losing party to rehash arguments previously considered and rejected by the district court. National Metal Finishing v. BarclaysAmerican, 899 F.2d 119, 123 (1st Cir. 1990); Van Skiver, 952 F.2d at 1243. "Motions to amend are not intended to give an unhappy litigant one additional chance to sway the judge." (citations and internal quotations omitted.) In re C.O. Rathole Drilling, Inc., 1991 WL 261721, *4 (D.Kan. 1991).
Fed.R.Civ.P. 60(b)(2) does not apply where evidence was available before the trial, but plaintiff had no knowledge of it. See Morgan v. Labiak, 368 F.2d 338, 341 (10th Cir. 1966). Competent counsel would have discovered and introduced into evidence, in proving plaintiff's damages, the amount of pay a part-time flexible career carrier would earn in 2001-02 and in the future. Plaintiff failed to do so. The reason for that failure is likely because she acted pro se.
The court has granted plaintiff some leniency in her pleadings because she is pro se, but the court cannot alter the fundamental rules of evidence, designed to provide fairness to both parties. Plaintiff has chosen to represent herself, and must live with the consequences of that choice. Her failure to prove a greater amount of damages is one such consequence. Plaintiff's motion to alter or amend must be denied, as she has not shown either newly discovered evidence or any other reason justifying relief from the operation of the judgment.
Defendant's motion
Defendant's motion seeks to reduce the amount of front pay this court ordered it to pay plaintiff in lieu of reinstatement. Defendant does not take issue with the rate of pay used by the court to determine the amount of front pay, or the court's extending front pay for ten years. Instead, defendant seeks to offset certain amounts which plaintiff has received, mostly since the date of the court's front pay order.
Defendant previously challenged the court's use of ten years for front pay, among other issues, but has never raised the current issue in other pleadings.
Defendant contends that plaintiff has already received $28,222.52 in front pay and post-judgment salary. Defendant also wishes to offset an additional $1,548.55, the amount of a duplicate bonus payment to plaintiff. Defendant's argument is essentially that it would be fundamentally unfair for plaintiff to receive her damages twice. This approach would result in front pay of $136,524.93 rather than $166,296.00.
Plaintiff received $7,059.50 in front pay from Sept. 22, 2001 through November 20, 2001, before she began working in her reinstated position. From December of 2001 through July of 2002, plaintiff worked in her reinstated position and received $21,163.02.
Defendant correctly notes that in determining the amount of front pay owed plaintiff, the court did not deduct the amounts of front pay and post judgment wages defendant had already paid to plaintiff. As defendant further recognizes, this was because those amounts had not been presented to the court. (Dk. 427, p. 3). Defendant states two reasons for not having presented these amounts to the court prior to the court's judgment: 1) it reasonably did not expect the court to order front pay in lieu of reinstatement and thus lacked a full fair opportunity to address the issue of the amount of front pay; and 2) not all information relative to the calculation of the correct amount was then available.
Judgment was entered on January 30, 2002, but plaintiff remained on defendant's payroll through July 30, 2002, while defendant's appeal of the court's front pay judgment was pending.
The court finds that defendant has, by virtue of this latter reason, demonstrated the existence of an extraordinary circumstance warranting partial relief from judgment. Plaintiff has not articulated any reason why she should receive front pay for the same period of time that she received a salary, pursuant to her reinstatement. These two remedies are mutually exclusive.
The court next addresses defendant's request to offset a duplicate payment of bonus money in the amount of $1,548.55. Plaintiff disputes that she received a duplicate payment of bonus money, as defendant alleges.
Defendant has shown the court that when plaintiff grieved defendant's decision that it was a duplicate payment, the union found in defendant's favor at Step B of its process, and noted that the decision was "RESOLVED." See Dk. 241, Exh. 2. Plaintiff has not challenged the accuracy of this information, or otherwise given the court any reason to question it. Based upon the same rationale set forth above, namely, that plaintiff is owed her damages once but not twice, the court finds that defendant is entitled to offset an additional amount of $1,548.55, from the front pay awarded to plaintiff.
The court's order on January 30, 2002, that plaintiff should receive $166,296.00 in front pay shall therefore be altered to order that plaintiff receive the amount of $136,524.93 ($166,296.00 — $28,222.52 — $1,548.55 = $136,524.93) instead. The previous order shall remain in effect in all other respects.
IT IS THEREFORE ORDERED that plaintiff's motion to compel defendant's cooperation (Dk. 241) is denied; that plaintiff's supplemental motion to her motion to compel defendant's cooperation (Dk. 242) is denied; that plaintiff's motion for continuation of pay and all attendant benefits (Dk. 243) is denied; that plaintiff's motion to alter or amend (Dk. 250) is denied; and that plaintiff's supplemental motion to alter or amend (Dk. 254) is denied.
IT IS FURTHER ORDERED that defendant's motion to alter or amend (Dk. 247) is granted and that the court's order and judgment (Dks. 211 212) that plaintiff should receive $166,296.00 in front pay is hereby altered to order that plaintiff receive the amount of $136,524.93 as front pay instead.