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Young v. School District of Philadelphia

March 16, 2010

BARRY YOUNG, PLAINTIFF,
v.
SCHOOL DISTRICT OF PHILADELPHIA, DEFENDANT.



MEMORANDUM

On September 25, 2009, this court entered an order granting summary judgment to defendant School District of Philadelphia ("the district") on plaintiff Barry Young's claims for (1) discrimination, harassment, retaliation, and unfair hiring in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and the Pennsylvania Human Relations Act ("PHRA"), 42 Pa. Stat. § 951 et seq., (2) defamation, and (3) forgery. Defendant's motion for summary judgment was, however, denied on plaintiff's claims that the district (1) breached the collective bargaining agreement ("CBA") entered into between the district and Local 1201, Firemen and Oiler's Union ("Local 1201" or "the union") and (2) breached a resignation agreement. Plaintiff now moves (docket no. 64) for reconsideration of the grant of summary judgment to the district on many of the Title VII and PHRA claims; plaintiff does not, however, seek reconsideration of the grant of summary judgment with respect to the Title VII and PHRA claims alleging unfair hiring practices.*fn1 Defendant moves (docket no. 60) for reconsideration as to the CBA and breach of contract claims.*fn2 Plaintiff has also filed a "motion for appeal" (docket no. 61), which this court construes as a motion for the entry of a final judgment on plaintiff's Title VII and PHRA claims pursuant to Federal Rule of Civil Procedure 54(b). Defendant has filed oppositions to plaintiff's motions (docket nos. 65-66), plaintiff has filed a joint response and reply brief (docket no. 67), and defendant has filed a surreply (docket no. 68). Following these filings, this court issued an order (docket no. 69) requesting additional briefing from the defendant on one question raised by plaintiff's response/reply brief, and both defendant (docket no. 73) and plaintiff (docket no. 71) have filed briefs in response to that order.*fn3

I.

"The usual vehicle for a motion for reconsideration is Federal Rule of Civil Procedure 59(e) or 60(b)." Bausch & Lomb Inc. v. Moria S.A., 222 F. Supp. 2d 616, 669 (E.D. Pa. 2002). In this case, because this court's September 25, 2009 order granting summary judgment to the district on only certain claims is interlocutory, see, e.g., Brooks v. Fitch, 642 F.2d 46, 48 (3d Cir. 1981), "neither Rule 59(e) nor 60(b) applies." Bausch & Lomb, 222 F. Supp. 2d at 669. Nevertheless, this court "'possesses inherent power over interlocutory orders, and can reconsider them when it is consonant with justice to do so.'" Kurns v. Chesterton, No. 08-2216, 2009 WL 249769, at *6 (E.D. Pa. Feb. 3, 2009) (quoting United States v. Jerry, 487 F.2d 600, 605 (3d Cir.1973)).

"The purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence." Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). Accordingly, reconsideration is appropriate if the moving party shows "(1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court granted the motion for summary judgment; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice." Max's Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). Where errors of law or fact are alleged, factual or legal issues may be reconsidered if they were "overlooked by the court in its decision," but "[a] motion for reconsideration is not properly grounded on a request that a court reconsider repetitive arguments that have [been] fully examined by the court." Blue Mountain Mushroom Co. v. Monterey Mushroom, Inc., 246 F. Supp. 2d 394, 398-99 (E.D. Pa. 2002) (internal quotation marks omitted).

A.

Plaintiff's motion for reconsideration and response/reply brief, which were both jointly filed in this case and in Young v. Local 1201, Firemen & Oilers Union, No. 07-3576, include the following seven contentions pertinent to Young's Title VII claims against the district: (1) this court erred in concluding that plaintiff self-referred twice under the Policy on Substance Abuse ("PSA") included in the collective bargaining agreement between the union and the district; (2) this court erred in its construction of the PSA; (3) plaintiff (a) told Ron Ellis, his union representative, that the decision of Timothy McCollum, plaintiff's first supervisor with the district, to terminate plaintiff's employment was based on racial animus, and (b) complained to his state representative about discrimination by McCollum; (4) McCollum, along with then-union president Michael McGinley, recruited white employees to the Emerald Society while channeling African-American employees to the NAACP; (5) in addition to "jump[ing] in [plaintiff's] face," McCollum yelled both "what the FUCK are you looking at" and "you don't know who [you're] fucking with" at Young, Pl.'s Mot. for Recons. at 1; (6) the history of plaintiff's drug tests submitted by the district is erroneous; and (7) several facts taken together demonstrate that plaintiff's Title VII claims are meritorious. Plaintiff further avers that he is owed for more days of leave time than were disclosed in the portion of this court's opinion discussing Young's claim that the district breached a resignation agreement. None of these arguments merits reconsideration of the September 2009 opinion and order.*fn4

First, plaintiff's arguments concerning the question of whether he self-referred on two occasions were previously considered by this court when it determined that "the PSA defines 'self-referral' as an 'employee's voluntarily identifying himself . . . as requiring assistance in dealing with alcohol or drug dependency,'" and that plaintiff "signed one self-referral form" and, on a "second occasion," asked Ron Ellis "to send him to rehabilitation." Young v. Sch. Dist. of Phila., No. 06-4485, 2009 WL 3072534, at *6 (E.D. Pa. Sept. 24, 2009). Thus, this court did not conclude, as plaintiff supposes, that his act of "reporting to Carol [Kenney, a district employee] on March 16, 2004" was a self-referral. Pl.'s Mot. for Recons. at 1. Nor do plaintiff's statements that (1) he "never returned to work [in] February 2005 to self-refer," id. at 2, (2) the PSA does not state that "you can only seek treatment during non working hours," Resp./Reply at 1, and (3) an employee need not "complete a 'self-referral form' to self-refer," id. at 2, provide any reason to believe that this court's reasoning, or any of the findings of fact on which that reasoning was based, was in error. I therefore decline to reconsider the conclusion that plaintiff self-referred twice within the meaning of the PSA.

Second, plaintiff quotes -- as he did in opposition to the union's motion for summary judgment -- the provision of the PSA stating that "[a]n employee's voluntary recourse to assistance for a substance abuse problem shall not in itself be considered either a self-referral under this policy or grounds for discipline." Id. Again, this court previously considered and rejected the argument that this provision forecloses the conclusion that plaintiff self-referred twice under the terms of the PSA, see Sch. Dist. of Phila., 2009 WL 3072534, at *7,and plaintiff has presented no reason to doubt that this court's construction of the PSA was correct. Reconsideration would accordingly be improper on this ground as well.

Third, plaintiff asserts that he "did inform Ron Ellis that [he] believed Tim McCollum's decision to fire [him] had to be racially motivated." Pl.'s Mot. for Recons. at 3. While this court's earlier opinion did grant summary judgment to the district on plaintiff's retaliation claim because Young did not complain to the union about racial discrimination or harassment by the district, plaintiff's allegation does not persuade this court that it committed an error of fact, because the only testimony in the record about McCollum's recommendation that Young be fired, which is taken from plaintiff's deposition, does not reveal that he made this complaint to Ellis. See Pl.'s Dep. at 193-98.*fn5

Further, plaintiff was asked twice during his deposition if he complained to the union about McCollum's alleged racial harassment, and he twice stated that he did not. See Def.'s Ex. C, at 226, 239. This claim also does not constitute "new evidence," because evidence of what plaintiff did or did not tell union representatives was "available when the court granted the motion for summary judgment." Max's Seafood Café, 176 F.3d at 677.

Plaintiff's response/reply brief further alleges that he telephoned his state representative "and complained of racism and discrimination." Resp./Reply, at 3. There is, however, no evidence in the record that Young did so. Rather, plaintiff's deposition testimony only reveals that, at the time McCollum recommended that he be fired, Young called his state representative, who intervened. Pl.'s dep. at 197. But plaintiff characterized his request as one to "ha[ve] some people call the school district to find out exactly what they were accusing [him] of and what was going to happen as a result of it." Id. Nothing in this description suggests that he complained to his representative about racial discrimination, and plaintiff's claim to the contrary in his response/reply brief is "not evidence and cannot by [itself] create a factual dispute sufficient to defeat a summary judgment motion." Jersey Cent. Power & Light Co. v. Lacey Twp., 772 F.2d 1103, 1109-10 (3d Cir. 1985).*fn6 Moreover, "[a] motion to reconsider may not raise new arguments that could or should have been made in support of, or in opposition to, the original motion." In re Linerboard Antitrust Litig., MDL No. 1261, 2008 WL 4461914, at *3 (E.D. Pa. Oct. 3, 2008).

Plaintiff's fourth argument alleges that McCollum and union president McGinley discriminatorily recruited only white employees for the Emerald Society. This court's review of the record, however, reveals only one prior reference to the Emerald Society -- a statement in plaintiff's memorandum in opposition to defendant's summary judgment motion to the effect that "McGinley refused to allow the union to properly represent [Young] because of [McGinley's] membership in the Emerald Society, [of] which . . . McCollum . . . was also a member." Pl.'s Resp., Dkt. No. 23, at 1-2. Once again, this is "not evidence and cannot . . . create a factual dispute sufficient to defeat a summary judgment motion." Jersey Cent. Power & Light Co., 772 F.2d at 1109-10. Even assuming that this statement could properly be considered on summary judgment, however, it does not include allegations of discriminatory recruitment, even though such allegations could have been made before this court decided the summary judgment motion. In other words, while this claim was not previously before this court, it does not meet the standards for "new evidence" on a motion for reconsideration.

Fifth, plaintiff asserts that this court failed to appreciate the extent of McCollum's hostility to Young by noting only that McCollum "jump[ed] in [his] face" but not McCollum's words on that occasion. Pl.'s Mot. for Recons. at 1. The court assumes that plaintiff refers to the class for Building Engineer Trainees at which, shortly after arriving, McCollum "yelled at one of Young's classmates and then aggressively approached and questioned Young." Sch. Dist. of Phila., 2009 WL 3072534, at *3. Contrary to plaintiff's suggestion, this court did note that -- as reflected in plaintiff's deposition -- McCollum's specific words to Young were "'what the fuck are you looking at? You find something funny?'" Id. at *8. Plaintiff's motion for reconsideration rephrases this language somewhat and asserts that McCollum said "what the FUCK are you looking at" and "you don't know who [you're] fucking with," Pl.'s Mot. for Recons. at 1, but this reformulation has no bearing on this court's reasoning that "although McCollum's classroom behavior was boorish," there is no evidence that it was "racially motivated." Sch. Dist. of Phila., 2009 WL 3072534, at *9. Accordingly, plaintiff's assertion does not demonstrate that the earlier opinion contained an error either of fact or of law.

Sixth, plaintiff asserts that the document submitted by the district court listing his drug testing history is inaccurate insofar as it relates to tests taken before his employment with the district. See Resp./Reply, at 2. Nothing in this court's prior opinion, however, rests on plaintiff's pre-employment testing history, and ...


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