Equal Employment Opportunity Commission v. JBS USA, LLC

          ORDER

          PHILIP A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE

         This 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 employer’s 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.

         I. BACKGROUND

         The 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.

         On 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.

         II. LEGAL STANDARD

         The 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 following reasons:

(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; or

(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 ...