Opinion
Civil Action No. 03-CV-2976.
July 1, 2004
MEMORANDUM ORDER
Presently before the Court is Plaintiff's Motion to Reconsider Entry of Summary Judgement in Favor of the Defendant. (Doc. No. 29.) On May 21, 2004, we issued a Memorandum and Order granting Defendant's Motion for Summary Judgement. (Doc. No. 28.) Plaintiff filed the instant Motion on May 26, 2004. On May 27, 2004, we entered judgement in favor of Defendant in accordance with our earlier Memorandum and Order, (Doc. No. 31), and, on June 18, 2004, Plaintiff filed a Notice of Appeal, (Doc. No. 33). Ordinarily, the timely filing of a notice of appeal divests the district court of jurisdiction over those aspects of the case involved in the appeal. Venen v. Sweet, 758 F.2d 117, 120 (3d Cir. 1985). However, because Plaintiff filed his Motion for Reconsideration before he filed the Notice of Appeal, we retain jurisdiction until we rule on Plaintiff's Motion for Reconsideration. FED. R. APP. P. 4(a)(4)(A). Indeed, Plaintiff's Notice of Appeal becomes effective only when we rule on his Motion for Reconsideration. FED. R. APP. P. 4(a)(4)(B)(i). Accordingly, we will address Plaintiff's Motion.
I. BACKGROUND
Plaintiff filed this action alleging age discrimination after Defendant failed to hire/promote Plaintiff to the position of Sales Manager — Business Accounts. In our Memorandum and Order dated May 21, 2004, we granted Defendant's Motion for Summary Judgement and dismissed Plaintiff's claims under the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. ("ADEA"), and the Pennsylvania Human Relations Act, 43 PA. CONS. STAT. §§ 955, 962 ("PHRA"). In doing so, we applied the familiar burden-shifting paradigm set forth in the Supreme Court decision McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under McDonnell Douglas, the burden is initially on the plaintiff to establish a prima facie case of discrimination. For purposes of its Motion for Summary Judgement, Defendant conceded that Plaintiff could show a prima facie case. The burden of production then "shift[ed] to the [D]efendant to `articulate some legitimate, nondiscriminatory reason for the'" failure to hire Plaintiff. Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994) (emphasis removed) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Defendant could satisfy its burden "by introducing evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the unfavorable employment decision." Fuentes, 32 F.3d at 763 (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993)). Because we concluded that Defendant met its "relatively light burden," the burden of production rebounded to Plaintiff to show by a preponderance of the evidence that Defendant's explanation was pretextual. See Fuentes, 32 F.3d at 763. After thoroughly considering all of the evidence submitted by the parties and viewing that evidence in the light most favorable to Plaintiff, we concluded that Plaintiff did not meet his burden of showing that Defendant's explanation was pretextual.
We also concluded that the evidence submitted by Plaintiff failed to raise an inference that Defendant was motivated by a discriminatory animus when it failed to hire/promote Plaintiff. We rejected Plaintiff's argument that we could infer that Defendant was motivated by a discriminatory animus because one of the decisionmakers with respect to Plaintiff's application told Plaintiff that the position required someone who could "project aggressiveness and be dynamic." Snik v. Verizon Wireless, No. 03-2976, 2004 WL 1151711, at *11 n. 6 (E.D. Pa. May 21, 2004). We concluded that the decisionmaker was not using "dynamic" as a code word for "young," and we stated that even if we were to conclude otherwise, such an isolated, ambiguous remark was insufficient to raise an inference of discrimination and defeat a motion for summary judgement. Id. We also failed to find an inference of discrimination from evidence that Defendant violated its hiring policy when it failed to provide Plaintiff with feedback concerning its decision not to hire him. Id. at 12. Because we failed to find any genuine issue of material fact to support a finding of discrimination, we granted Defendant's Motion for Summary Judgement.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 59(e) and Local Civil Rule 7.1(g) of the United States District Court for the Eastern District of Pennsylvania allow parties to file motions for reconsideration or amendment of a judgment. Courts should grant these motions sparingly, reserving them for instances when: (1) there has been an intervening change in controlling law; (2) new evidence has become available; or (3) there is a need to prevent manifest injustice or correct a clear error of law or fact. See, e.g., General Instrument Corp. v. Nu-Tek Elecs., 3 F. Supp. 2d 602, 606 (E.D. Pa. 1998), aff'd, 197 F.3d 83 (3d Cir. 1999). In this case, Plaintiff argues that our failure to consider his claims under a mixed-motive theory was a clear error of law that requires that we reconsider our earlier decision.
A motion for reconsideration of a final judgment will generally be construed as a motion under Federal Rule of Civil Procedure 59(e) to alter or amend the judgment, when, as here, the motion does not cite a specific federal rule. Koshatka v. Philadelphia Newspapers, Inc., 762 F.2d 329, 333 (3d Cir. 1985).
In a supplemental memorandum in support of his Motion, Plaintiff submitted evidence in the form of an e-mail that he contends supports a finding that Defendant was motivated by a discriminatory animus. (Doc. No. 30.) However, we cannot consider this e-mail because Plaintiff failed to cite to it when he opposed Defendant's Motion for Summary Judgement even though he admits the evidence was available at that time. See Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985) ("Where evidence is not newly discovered, a party may not submit that evidence in support of a motion for reconsideration.").
III. ANALYSIS
Plaintiff filed the instant Motion contending that in granting Defendant's Motion for Summary Judgement, we erred by not explicitly considering whether Plaintiff's evidence was sufficient to raise a genuine issue of material fact under the "mixed-motives" test, which was first enunciated in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Under the mixed-motives test, the burden is initially on the plaintiff to demonstrate that the adverse employment decision was "the result of mixed motives (i.e. that it is the `result of multiple factors, at least one of which is illegitimate' and the illegitimate factor played `a motivating part' in the adverse decision) [after which] the burden shifts to the employer to persuade the jury by a preponderance of the evidence that it would have reached the same decision even if the protected trait had not been considered." Watson v. Southeastern Pa. Transp. Auth., 207 F.3d 207, 215 (3d Cir. 2000) (quoting Price Waterhouse, 490 U.S. at 244-45 (plurality opinion)). Traditionally, a plaintiff proceeding under a mixed-motive theory could meet his initial burden only by pointing to direct evidence of discrimination, meaning "conduct or statements by persons involved in the decisionmaking process that may be viewed as directly reflecting the alleged discriminatory attitude." Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1096 (3d Cir. 1995) (quoting Griffiths v. CIGNA Corp., 988 F.2d 457, 470 (3d Cir. 1993)). In Desert Palace, Inc. v. Costa, however, the Supreme Court held that in employment discrimination cases brought under Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, plaintiffs can proceed under a mixedmotive theory by pointing to direct or circumstantial evidence that an impermissible criterion played a motivating factor in the adverse employment decision. 539 U.S. 90, 101-102 (2003). Post- Desert Palace it is not clear whether plaintiffs asserting claims under the ADEA can proceed under a mixed-motive theory even if they lack direct evidence of discrimination. Compare Rachid v. Jack In The Box, Inc., No. 03-10803, 2004 WL 1427046 (5th Cir. June 25, 2004) (holding that direct evidence of discrimination is not necessary to receive a mixed-motives analysis for an ADEA claim); with Mereish v. Walker, 359 F.3d 330, 339-40 (4th Cir. 2004) (indicating doubt that Desert Palace applies to ADEA claims); cf. Monaco v. American Gen. Assurance Co., 359 F.3d 296, 300 (3d Cir. 2004) (stating — without discussion of Desert Palace the rule that in ADEA cases, plaintiffs proceeding under a mixed-motive theory are required to present direct evidence of discrimination). In any event, in this case we need not decide whether Plaintiff is required to present direct evidence of discrimination to proceed under a mixed-motive theory. In our earlier Memorandum and Order, we considered all the evidence that Plaintiff presented (direct, circumstantial, and evidence of a pretext), and failed to find a genuine issue of material fact to support an inference of discrimination.
Before granting summary judgement, a district court should consider whether the plaintiff's claim would survive under either a pretext or a mixed-motive theory. Hankins v. City of Phila., 189 F.3d 353, 364 n. 6 (3d Cir. 1999). In our Memorandum and Order dated May 21, 2004 we did not explicitly assess Plaintiff's claims under a mixed-motive theory. However, as discussed above, we did consider whether Plaintiff had raised a genuine issue of material fact that Defendant was motivated by a discriminatory animus. We rejected Plaintiff's suggestion that Defendant's use of the word "dynamic" raised an inference of discrimination. Snik, 2004 WL 1151711, at *11 n. 6. We found no inference of discrimination from the fact that Defendant failed to give Plaintiff feedback concerning its decision not to hire/promote him. Id. at * 12. And we considered and rejected all of Plaintiff's arguments as to why we should find Defendant's hiring explanations pretextual. In sum, we concluded that Plaintiff had failed to point to evidence sufficient to create a genuine issue of material fact that Defendant possessed a discriminatory animus or that Defendant relied on pretextual explanations.
In support of the instant Motion, Plaintiff argues only that our decision on Defendant's Motion for Summary Judgement "may have or could have been different, had [Plaintiff's] evidence been reviewed under a mixed motives standard." (Doc. No. 29 at 3.) We disagree. Our Memorandum and Order considered all of Plaintiff's evidence, both direct and circumstantial, and found that the evidence was not sufficient to create a genuine issue of fact as to the existence of discriminatory animus or pretext. Accordingly, Plaintiff's claims cannot survive under either a mixed-motive or pretext theory. Because we find no clear error of law or fact, we will deny Plaintiff's Motion to Reconsider.
An appropriate Order follows.
ORDER
AND NOW, this ____ day of July, 2004, upon consideration of the Plaintiff's Motion to Reconsider Entry of Summary Judgement in Favor of the Defendant, (Doc. No. 29), and all papers filed in support thereof and opposition thereto, it is ORDERED that the Plaintiff's Motion to Reconsider is DENIED.IT IS SO ORDERED.