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Freeman v. Brennan

United States District Court, W.D. Pennsylvania

May 1, 2017

ALFONSO FREEMAN, Plaintiff,
v.
MEGAN J. BRENNAN, UNITED STATES POSTMASTER GENERAL, Defendant.

          MEMORANDUM OPINION AND ORDER

          ROBERT C. MITCHELL United States Magistrate Judge

         Presently before the Court is Defendant's motion for reconsideration (ECF No. 63) of this Court's Memorandum Opinion and Order (ECF No. 60) which granted in part and denied in part the motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 (ECF No. 40), filed by Defendant Megan J. Brennan, United States Postmaster General, with respect to two claims brought by Plaintiff, Alfonso Freeman. The motion has been fully briefed. For the reasons that follow, the motion will be denied.

         In Count I of his Amended Complaint, Plaintiff alleged a claim of racial discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (Title VII), and in Count II, he alleged a hybrid claim under 39 U.S.C. § 1208(b) arising out of his termination, effective June 22, 2014, from his position as a Postal Support Employee (PSE) Motor Vehicle Operator (MVO) with the United States Postal Service (Postal Service). Plaintiff contended that the Postal Service discriminated against him on the basis of his race (African American) and that it breached the Collective Bargaining Agreement (CBA) between the Postal Service and the Union by relying upon an accident for which he received only counseling in terminating his employment while his Union breached its duty of fair representation by withdrawing his grievance. In the Memorandum Opinion and Order filed on March 27, 2017, the Court granted Defendant's motion for summary judgment with respect to Count II of the Amended Complaint and denied it with respect to Count I. Defendant moves for reconsideration of the decision to deny summary judgment with respect to the racial discrimination claim in Count I.

         Standard of Review

         The Court of Appeals has stated that:

“The purpose of a motion for reconsideration, ” we have held, “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, a judgment may be altered or amended if the party seeking reconsideration shows at least one of the following grounds: (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. See North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995).

Max's Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). “It is improper on a motion for reconsideration to ask the Court to rethink what [it] had already thought through rightly or wrongly.” Glendon Energy Co. v. Borough of Glendon, 836 F.Supp. 1109, 1122 (E.D. Pa. 1993) (internal citation and quotes omitted). In this case, Defendant cites no intervening change in the law or availability of new evidence, so the motion raises only a claim that the Court committed a “clear error of law or fact.” There is a split of opinion among district courts within the Third Circuit as to the appropriate standard of review of orders granting partial summary judgment, and some courts have accepted the broader standard that a court may permit reconsideration of such orders whenever “consonant with justice to do so.” Qazizadeh v. Pinnacle Health Systems, 2016 WL 5787352, at *2 (M.D. Pa. Oct. 4, 2016). In this Court, most cases have cited the three factors from Max's Seafood Café and held that “a motion for reconsideration that “essentially restates, with added vigor, the arguments made previously” does not satisfy this “substantial standard.” Peerless Ins. Co. v. Pennsylvania Cyber Charter Sch., 19 F.Supp.3d 635, 651 (W.D. Pa. 2014) (Hornak, J.) (citation omitted).

         However, other cases have indicated that, when the order at issue is interlocutory (such as an order granting in part and denying in part a motion for summary judgment), the greater discretion of the applying “consonant with justice” standard applies. See Sampath v. Concurrent Tech. Corp., 2006 WL 2642417, at *2 (W.D. Pa. Sept. 13, 2006) (Gibson, J.); Square D Co. v. Scott Elec. Co., 2008 WL 4877990, at *1 (W.D. Pa. Nov. 12, 2008) (Fischer, J.) (same).

         Nevertheless, even those courts that have applied the more lenient standard have held that “[w]hile a district court has the inherent power to reconsider an interlocutory order, ‘[c]ourts tend to grant motions for reconsideration sparingly and only upon the grounds traditionally available under Fed.R.Civ.P. 59(e).'” Morgan v. Hawthorne Homes, Inc., 2010 WL 1286949, at *2 (W.D. Pa. Mar. 31, 2010) (Cohill, J.) (quoting A & H Sportswear Co. v. Victoria's Secret Stores, Inc., 2001 WL 881718, at *1 (E.D. Pa. May 1, 2001)). See also Sampath, 2006 WL 2642417, at *2 (rejecting motion that merely restated some argument that had previously been rejected). Thus, under either standard, Defendant cannot obtain reconsideration by merely rearguing the merits of its motion for summary judgment. Yet that is what it is attempting to do.

         In the motion for summary judgment, Defendant argued that Plaintiff was fired after he was involved in three motor vehicle accidents and that he could not compare himself to Richard Hipkiss, a white PSE, because Hipkiss actually received more severe treatment from the Postal Service-he was terminated after two accidents-and the fact that the Union was subsequently able to obtain Hipkiss's reinstatement through the grievance process has no bearing on the actions of his employer. (ECF No. 41 at 7-9.) In response, Plaintiff argued that he could not only compare himself to Hipkiss, but also to two other white Postal Service employees, John McCartney and Charles McCloskey. (ECF No. 50 at 17-24.) In a reply brief, Defendant argued that McCartney (a PSE) and McCloskey (a full-time MVO) were also improper comparators. (ECF No. 54 at 2-4.)

         The Court agreed with Defendant that Hipkiss was not similarly situated because he received more severe treatment than Plaintiff. The Court indicated, however, that McCartney's situation was more complicated and did not resolve whether he was a proper comparator.[1]Finally, with respect to McCloskey, the Court concluded that he was similarly situated: 1) like Plaintiff, he had three motor vehicle accidents; 2) Defendant's argument that McCloskey was a “full-time MVO with the full panoply of progressive discipline rights” unlike Plaintiff, who was a PSE, was not as clear-cut as Defendant maintained (and did not reflect the actual language of the agreements between the Postal Service and the Union); 3) Defendant's suggestion that the Union was responsible for McCloskey receiving more favorable treatment was not supported by the record; and 4) Defendant cited no authority to support its contention that two otherwise similarly situated employees could be further distinguished based on their positions within the Union or whether they are full-time or part-time employees.

         Defendant continues to argue these points, supplementing its previous brief discussion with additional facts and six cases which purportedly support its contention that McCloskey and Plaintiff are not “similarly situated.” Plaintiff responds that the Court has already properly held that McCloskey is similarly situated to him, and that the cases Defendant cites are distinguishable and do not hold as Defendant contends.

         The Facts

         Defendant notes that McCloskey's second accident occurred on November 2, 2011, for which he ultimately received a Letter of Warning (LOW). (ECF No. 51 Ex. 29 at USPS 120-22.) However, it argues that, pursuant to provisions of the CBA (ECF No. 42 Ex. C Arts. 16.3, 16.10), the discipline was effectively removed from his record two years later and thus when he had another accident on September 17, 2014 (more than two years later), the Postal Service could not refer to it and had to issue him an LOW for a “first offense.” However, there is no evidence in the record that this is what actually transpired in McCloskey's case. Nor is the matter made clearer by Transportation Manager Anthony Battle's deposition ...


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