United States District Court, D. Colorado
A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff EEOC’s Motion
for Reconsideration or, in the Alternative, for Certification
Pursuant to 28 U.S.C. § 1292(b) [Docket No. 631] filed
on October 30, 2018. The Equal Employment Opportunity
Commission (“EEOC”) requests that the Court
reconsider its Phase I Findings of Fact and Conclusions of
Law (“Phase I Findings”) [Docket No. 620], which
were entered on September 24, 2018. Defendant JBS USA, LLC,
d/b/a JBS Swift & Company (“JBS”) responded
on November 20, 2018, Docket No. 643, to which the EEOC
replied on December 4, 2018. Docket No. 644. In the
alternative, the EEOC asks the Court to certify to the Tenth
Circuit the question of whether an employerâs failure to
provide a religious accommodation, by itself, may constitute
an adverse employment action under Section 703 of Title VII.
Docket No. 631 at 14. Defendant does not oppose this request.
Docket No. 643 at 15.
EEOC initiated this lawsuit against defendant on August 30,
2010, alleging a pattern or practice of discrimination on the
basis of race, national origin, and religion, as well as
raising claims of retaliation. Docket No. 1 at 1-2. On August
8, 2011, the Court issued an order bifurcating the case.
Docket No. 116. Phase I of the trial was to address three
issues: (1) whether defendant engaged in a pattern or
practice of unlawfully denying Muslim employees reasonable
religious accommodations to pray and break their Ramadan fast
from December 2007 through July 2011; (2) whether defendant
engaged in a pattern or practice of disciplining employees on
the basis of their race, national origin, or religion during
Ramadan 2008; and (3) whether defendant engaged in a pattern
or practice of retaliating against a group of black, Muslim,
Somali employees for engaging in protected activity in
opposition to discrimination during Ramadan 2008.
Id. The Court presided over a 16-day trial for Phase
I from August 7 to August 31, 2017. Docket Nos. 577-592.
September 24, 2018, the Court issued its Phase I Findings.
Docket No. 620. It found that (1) while defendant had denied
Muslim employees a reasonable religious accommodation to pray
during Ramadan (other than in 2009 and 2010), the EEOC had
not made a requisite showing that any employees suffered a
materially adverse employment action as a result of
defendant’s policy denying unscheduled prayer breaks,
id. at 82; (2) the EEOC had failed to prove that
defendant’s disciplinary actions during Ramadan 2008
were motivated by a discriminatory animus, id. at
90; and (3) the EEOC had failed to demonstrate that
defendant’s discipline of employees during Ramadan 2008
was for a retaliatory purpose rather for engaging in a work
stoppage. Id. at 95. The Court dismissed the
EEOC’s Phase I pattern or practice claims. Id.
Federal Rules of Civil Procedure do not specifically provide
for motions for reconsideration. See Hatfield v. Bd. of
Cty. Comm’rs for Converse Cty., 52 F.3d 858, 861
(10th Cir. 1995). Instead, motions for reconsideration fall
within a court’s plenary power to revisit and amend
interlocutory orders as justice requires. See Paramount
Pictures Corp. v. Thompson Theatres, Inc., 621 F.2d
1088, 1090 (10th Cir. 1980) (citing Fed.R.Civ.P. 54(b)). A
motion to reconsider may be construed as a motion to amend or
alter the judgment under Fed.R.Civ.P. 59(e) or as a motion
seeking relief from judgment under Fed.R.Civ.P. 60(b).
Van Skiver v. United States, 952 F.2d 1241, 1243
(10th Cir. 1991). Because a motion to alter or amend a
judgment under Fed.R.Civ.P. 59(e) must be filed within 28
days after entry of judgment, a motion to reconsider filed
outside of that window is analyzed under Rule 60(b).
Fed.R.Civ.P. 59(e); Flores v. Chapdelaine, No.
12-cv-00065-PAB, 2014 WL 5812120, at *1 (D. Colo. Nov. 7,
2014) (citing Van Skiver, 952 F.2d at 1243). Rule
60(b) allows a court to grant relief from an order for the
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for
a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged;
it is based on an earlier judgment that has been reversed or
vacated; or applying it prospectively is no longer equitable;
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b). “Relief under Rule 60(b) is
extraordinary and may only be granted in exceptional
circumstances.” Bud Brooks Trucking, Inc. v. Bill
Hodges Trucking Co., 909 F.2d 1437, 1440 (10th Cir.
1990). “A plaintiff must overcome a higher hurdle to
obtain relief from a post-judgment motion than on direct