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Chung v. El Paso School District #11

United States District Court, D. Colorado

November 17, 2015

JULIA CHUNG, Plaintiff,
v.
EL PASO SCHOOL DISTRICT #11, Defendant.

ORDER

Kristen L. Mix United States Magistrate Judge

This matter is before the Court on Plaintiff’s[1] Motion to Reconsider Order to Vacate Order Dismissing Plaintiff’s Retaliation Claim Without Prejudice and Order Granting Defendant’s Corrected Motion for Summary Judgment Including the Retaliation Claim [#110][2];[3] on Plaintiff’s Motion to Re-Open the Case [#111];[4] on Plaintiff’s Motion for Reconsideration of Order to Grant Defendant’s Motion for Summary Judgment Including the Discrimination Claim and Retaliation Claim and Final Judgment [#113];[5] on Plaintiff’s Motion for Reconsideration [of] Order Granting Defendant’s Motion to Strike Plaintiff’s Untimely Summary Judgment Filings and Order Granting Defendant’s Motion to Strike Plaintiff’s Notarized Corrected Counter-Affidavit [#115];[6] on Plaintiff’s Corrected Motion for Reconsideration, With Legal Authorities and Attachments, of [Order] Granting Defendant’s Motion for Summary Judgment Including the Discrimination Claim and Retaliation Claim and Final Judgment [#116];[7] on Plaintiff’s Motion for Review of Taxed Costs and Stay the Taxed Costs Pending Appeal to the Appellate Court [#132];[8] and on Defendant’s Motion to Review Taxation of Costs [#133].[9] The Court has reviewed the Motions, Responses, Replies, the entire case file, and the applicable law, and is sufficiently advised in the premises.[10] For the reasons set forth below, Plaintiff’s Motion to Reconsider Order to Vacate Order Dismissing Plaintiff’s Retaliation Claim Without Prejudice and Order Granting Defendant’s Corrected Motion for Summary Judgment Including the Retaliation Claim [#110] is DENIED; Plaintiff’s Motion to Re-Open the Case [#111] is DENIED; Plaintiff’s Motion for Reconsideration of Order to Grant Defendant’s Motion for Summary Judgment Including the Discrimination Claim and Retaliation Claim and Final Judgment [#113] is DENIED as moot; Plaintiff’s Motion for Reconsideration [of] Order Granting Defendant’s Motion to Strike Plaintiff’s Untimely Summary Judgment Filings and Order Granting Defendant’s Motion to Strike Plaintiff’s Notarized Corrected Counter-Affidavit [#115] is DENIED; Plaintiff’s Corrected Motion for Reconsideration, With Legal Authorities and Attachments, of [Order] Granting Defendant’s Motion for Summary Judgment Including the Discrimination Claim and Retaliation Claim and Final Judgment [#116] is DENIED; Plaintiff’s Motion for Review of Taxed Costs and Stay the Taxed Costs Pending Appeal to the Appellate Court [#132] is DENIED in part and DENIED without prejudice in part; and Defendant’s Motion to Review Taxation of Costs [#133] is GRANTED.

I. Analysis

A. Motion to Reconsider Order to Vacate Order Dismissing Plaintiff’s Retaliation Claim Without Prejudice and Order Granting Defendant’s Corrected Motion for Summary Judgment Including the Retaliation Claim [#110]

In this Motion [#110], Plaintiff moves for reconsideration of the Court’s July 21, 2015 Order [#105], which vacated the Court’s July 2, 2015 Order [#98] dismissing Plaintiff’s Title VII retaliation claim without prejudice. Plaintiff further moves for reconsideration of the Court’s Order [#107] granting Defendant’s Corrected Motion for Summary Judgment [#79].

A motion for reconsideration “is an extreme remedy to be granted in rare circumstances.” Brumark Corp. v. Samson Res. Corp., 57 F.3d 941, 944 (10th Cir. 1995). It is well-established in the Tenth Circuit that grounds for a motion to reconsider are limited to the following: “(1) an intervening change in the controlling law; (2) new evidence previously unavailable; and (3) the need to correct clear error or prevent manifest injustice.” Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (citing Brumark, 57 F.3d at 948). Therefore, a motion to reconsider is “appropriate [only] where the court has misapprehended the facts, a party’s position, or the controlling law.” Id. Plaintiff bases her argument solely on the asserted need to correct clear error or prevent manifest injustice. See Motion [#110] at 3-4.

On June 29, 2015, the Court issued an Order to Show Cause [#96] regarding whether the Court had subject matter jurisdiction over Plaintiff’s Title VII retaliation claims based on Plaintiff’s failure to receive a right-to-sue letter on her second EEOC charge. The Court presented Plaintiff with three options: (1) attach to her response a copy of the notice of right to sue from the EEOC on Plaintiff’s second charge; (2) voluntarily dismiss her retaliation claims without prejudice, in which case her current lawsuit would proceed on only the discrimination claim, or (3) state that she would prefer to administratively close the case until receipt of her EEOC notice of right to sue on her Second Charge. Order to Show Cause [#96] at 4-5. On July 2, 2015, Plaintiff responded by indicating that she would prefer to dismiss her retaliation claim without prejudice. Response [#97] at 1 (“Plaintiff, Julia Chung, moves for leave to withdraw, without prejudice, to allow the separate filing of her retaliation claim in a new action, and further moves to withdraw portions of her brief [Doc 82] and exhibits relating to her retaliation claim.”). The same day, the Court discharged the Order to Show Cause [#96] based on Plaintiff having chosen the second option. Order [#98].

On July 6, 2015, Defendant filed the Motion to Reconsider [#99] to alert the Court that, although the EEOC had not issued a right-to-sue letter at the time of the filing of Defendant’s Corrected Motion for Summary Judgment, see [#79] at 15 n.7, the EEOC had subsequently done so. See [#88-4]. Plaintiff had fully responded to Defendant’s motion seeking summary judgment on her retaliation claim before later electing to dismiss her retaliation claim without prejudice in response to the Order to Show Cause. Notably, Plaintiff had neglected to inform the Court in her initial Response [#82] that the EEOC had issued a notice of right to sue on her Second Charge. Because of the fact that a notice of right to sue had been issued on Plaintiff’s Second Charge, Defendant sought an order reconsidering the dismissal of Plaintiff’s Title VII retaliation claim. Motion to Reconsider [#99].

Based on Servants of Paraclete v. Does, the Court agreed with Defendant that Plaintiff’s Title VII retaliation claim should be reinstated. 204 F.3d at 1012 (stating in part that a motion to reconsider is “appropriate where the court has misapprehended the facts”). Because the second right-to-sue letter had been issued by the EEOC, it was clear that the Court had jurisdiction over the claim. Further, the Court noted that discovery in this case had included Plaintiff’s retaliation claim. Discovery was closed and the motion for summary judgment had been fully briefed prior to the issuance of the Order to Show Cause. Thus, the Court concluded that reinstating the Title VII retaliation claim would not result in prejudice to either Plaintiff or Defendant. Order [#98].

In short, Plaintiff appears to misunderstand the sequence of events underlying the Order to Show Cause. The choice presented to Plaintiff in the Order to Show Cause was premised on the Court’s incorrect belief that the second EEOC notice of right to sue had not yet been issued. Because this underlying belief was incorrect, the only choice open to Plaintiff was to proceed with her retaliation claims. In other words, because the second EEOC right-to-sue notice had been issued, there was neither a need nor a legal basis for Plaintiff to choose any option other than to proceed with her lawsuit. Once the misunderstanding was clarified by Defendant, it was appropriate to vacate the Order premised on the Order to Show Cause, and, because neither party had suffered prejudice, there was no need for the Court to refrain from ruling on the merits of Plaintiff’s retaliation claims in connection with Defendant’s Corrected Motion for Summary Judgment.

In the present Motion [#110], Plaintiff presents a number of arguments in support of her request for reconsideration of the Order [#98] reinstating her retaliation claim. First, she argues that it was unjust for the Court to issue the Order [#107] vacating the July 2, 2015 Order [#98] dismissing Plaintiff’s retaliation claim, and then to issue the Order [#107] granting Defendant’s Corrected Motion for Summary Judgment [#79] on the same day. Motion [#110] at 2-3. She also argues that she was unjustly denied due process when the Court ruled on Defendant’s Motion to Reconsider the Order Dismissing the Retaliation Claim [#99] before Plaintiff’s twenty-one days to respond had elapsed. Motion [#110] at 4-5; Reply [#122] at 5. Both of these contentions are without merit, as the Court may rule on a motion at any time after it is filed. D.C.COLO.LCivR 7.1(d).

To the extent Plaintiff argues that she did not have adequate time to voluntarily dismiss her retaliation claims after the Court reinstated them but before the Court entered summary judgment on them, the Court notes that, regardless of the timing of these rulings, she would have been unable to independently dismiss any of her claims at that stage of the litigation without the agreement of either Defendant or the Court. See Fed. R. Civ. P. 41(a)(1)(A)(ii) (permitting voluntarily dismissal without a court order by filing a stipulation of dismissal signed by all parties who have appeared), 41(a)(2) (permitting voluntary dismissal by court order on terms that are considered proper by the court). Plaintiff’s opportunity to dismiss a claim absent the agreement of either Defendant or the Court had already lapsed. See Fed. R. Civ. P. 41(a)(1)(A)(i) (providing that “the plaintiff may dismiss an action without a court order by filing a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment”).

Next, Plaintiff argues that she never asserted retaliation claims in this lawsuit. However, this contention is clearly belied by her filings in this case. Plaintiff asserted these claims in the Complaint. [#1] at 4-5. In fact, she asserted retaliation based on two separate incidents: (1) “During the school year of 2013-2014, my 6th grade Reading assignment became available, [and] the principal retaliated against me because of my participation in the EEOC Complaint, ” and (2) “El Paso School District retaliated against me when I applied for a position as the Multi-Lingual Facilitator in July 2013.” Id. The EEOC Charge attached to the Complaint demonstrates that Plaintiff’s discrimination claim was asserted independently from her retaliation claims. See Id. at 3-5 (incorporating the first EEOC Charge under the first claim for relief and discussing the retaliation issues under the second and third claims for relief). Plaintiff’s assertion that she “made an innocent error in her filing of the Complaint because she had no legal counsel” is belied by the deliberateness with which she asserted retaliation in the Complaint. Even if she did not address retaliation issues in the Proposed Scheduling Order, interrogatories, and requests for admission (an issue which the Court next addresses), Plaintiff cannot simply choose to ignore claims she has asserted in her Complaint. Once asserted, claims remain a part of the lawsuit until dismissed or adjudicated.

In connection with this last argument, Plaintiff also argues that she did not litigate her retaliation claims. Motion [#110] at 5; Reply [#122] at 2. Again, as Defendants thoroughly point out, this contention is without merit. See Response [#112] at 3-7. Plaintiff litigated her retaliation claims when she provided her initial disclosures. See Rule 26(a)(1) Initial Disclosure [#112-1] at 2-4. She litigated her retaliation claims when she propounded her discovery requests. See Pl.’s Requests for Production [#112-3] at 3; Pl.’s Requests for Admission # 1-18 [#112-4] at 4. She litigated her retaliation claims when she filed her Motion to Compel Delivery to Discovery Requests and Sanction Against School District 11 [#70] (the “Motion to Compel”). See Motion to Compel [#70] at 3-4; Supp. to Motion to Compel [#73] at 12. She litigated her retaliation claims when she deposed three witnesses, Carole Carlsen, Holly Brilliant, and Sherry Kalbach. See Depo. of Carole Carlsen [#101-1]; Depo. of Holly Brilliant [#101-2]; Depo. of Sherry Kalbach [#112-5]. She litigated her retaliation claims by providing vigorous opposition to Defendant’s Corrected Motion for Summary Judgment [#79], including in her Response an entire section on her retaliation claims, without asserting that she was not making such claims in this case. See Response [#82] at 29-35, 38-39, 43-44. Plaintiff’s argument that she did not litigate her retaliation claims is frivolous.

Next, Plaintiff argues that the Court erred by finding it has subject matter jurisdiction over the retaliation claims when the EEOC issued the right-to-sue notice only after the commencement of this lawsuit. See, e.g., Motion [#110] at 5. In support, she cites to Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1317 (10th Cir. 2005).[11] However, more on point, the Tenth Circuit Court of Appeals has also held in Title VII cases that “jurisdictional prerequisites may be satisfied after commencement of the action.” Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d 1221, 1228 n.3 (10th Cir. 1997) (citing Mathews v. Diaz, 426 U.S. 67, 75 (1976)). Thus, although Plaintiff argues that she could only file a lawsuit based on the claims in the EEOC letter within the ninety-day window following the EEOC’s issuance of the letter on her Second Charge, Tenth Circuit precedent clearly shows that the Court is not deprived of subject matter jurisdiction when a plaintiff files such claims before the right-to-sue letter is received, so long as the EEOC later issues the letter. See Id. (finding subject matter jurisdiction when the plaintiff filed her lawsuit, then filed her EEOC charge, and then received her right-to-sue letter). Thus, because the EEOC letter was issued prior to the Court’s entry of summary judgment, the Court had subject matter jurisdiction over Plaintiff’s retaliation claims.

Finally, on July 13, 2015, Plaintiff filed Civil Action No. 15-cv-01478-KLM, reasserting her Title VII retaliation claims. See generally Minute Order [#106] (denying Defendant’s Motion to Consolidate Actions [#101] on various grounds). She argues that the filing of this second lawsuit based on the same claims deprives the Court of subject matter jurisdiction over those same claims in this lawsuit, Civil Action No. 15-cv-01520-KLM. See Motion [#110] at 3-4. However, Plaintiff cites to no legal authority, and the Court is aware of none, that supports her position. She appears to believe that once she filed a second lawsuit relating to her Title VII retaliation claims, the Court no longer had authority to adjudicate those claims in her first lawsuit. This argument is without basis in the law.[12]

Based on the foregoing, Plaintiff’s request for reconsideration of the Court’s July 21, 2015 Order [#105] vacating the Court’s July 2, 2015 Order [#98] dismissing Plaintiff’s Title VII retaliation claim without prejudice is denied.

Plaintiff’s argument for reconsideration of the Court’s Order [#107] granting Defendant’s Corrected Motion for Summary Judgment [#79] hinges on Plaintiff’s request for reconsideration of the Court’s July 21, 2015 Order [#105] reinstating the retaliation claims. Because the Court denies Plaintiff’s request for reconsideration of the July 21, 2015 Order [#105], Plaintiff’s request regarding the Order [#107] entering summary judgment in Defendant’s favor is likewise denied.

Accordingly, Plaintiff’s Motion to Reconsider Order to Vacate Order Dismissing Plaintiff's Retaliation Claim Without Prejudice and Order Granting Defendant's Corrected Motion for Summary Judgment Including the Retaliation Claim [#110] is denied.

B. Motion to Re-Open the Case [#111]

Plaintiff here seeks to reopen this case pursuant to Fed.R.Civ.P. 60(a) and 60(b)(1). Motion [#111] at 1. Fed.R.Civ.P. 60(a) provides:

Corrections Based on Clerical Mistakes; Oversights and Omissions. The court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record. The court may do so on motion or on its own, with or without notice. But after an appeal has been docketed in the appellate court and while it is pending, such a mistake may be corrected only with the appellate court’s leave.

Here, the alleged error about which Plaintiff complains was not a clerical mistake or a mistake arising from oversight or omission. Rather, she argues that the Court erred regarding its determination of subject matter jurisdiction over Plaintiff’s retaliation claim. See ...


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