United States District Court, D. Colorado
OPINION AND ORDER DENYING MOTION FOR
S. Krieger Senior United States District Judge.
MATTER comes before the Court pursuant to Mr.
English's Motion to Alter Judgment (#
55), which seeks reconsideration of the Court's
August 8, 2019 Opinion and Order (# 52)
granting the Defendants' (“SBA”) motion for
summary judgment, the SBA's response (#
57), and Mr. English's reply (#
Court assumes the reader's familiarity with the
proceedings to date and the contents of the Court's
August 8, 2019 Order, and the Court will not materially
summarize those matters. It is enough to note that Mr.
English alleges that his discipline and termination by the
SBA was the result of discrimination based on his race and
retaliation for his having made numerous complaints against
various co-workers and management. The Court found that Mr.
English could not show that the reasons given by the SBA for
his termination (and any prior disciplinary acts that could
amount to adverse employment actions) were not pretextual.
September 3, 2019, Mr. English filed a lengthy motion
(# 55) that requests reconsideration of
various aspects of the Court's August 8 Order. Because
that motion was filed within 28 days after entry of judgment,
the Court treats it as one pursuant to Fed.R.Civ.P. 59(e).
Relief under Rule 59(e) is reserved for extraordinary
circumstances and is not an opportunity to re-argue issues
already addressed or to advance arguments that could have
been raised in prior briefing. Rather, it is appropriate only
where there has been an intervening change in the controlling
law, where previously-unavailable evidence has been
discovered, or where there is a need to prevent manifest
injustice because the court has misapprehended the facts, a
party's position, or the controlling law. Servants of
Paraclete v. Does, 204 F.3d 1005, 1012
English repeatedly references the fact that Mr. Gibbs, the
SBA official that ultimately approved of Mr. English's
termination, stated that he did not actually read an April
24, 2016 letter that Mr. English sent, in which Mr. English
explained the reasons for his purported
“self-removal” in April 2016. Mr. English notes
that although he himself did not send a copy of the letter to
Mr. Gibbs, evidence in the record indicates that other SBA
officials may have provided Mr. Gibbs with a copy. Mr.
English therefore argues that there is an
“inconsistency” in Mr. Gibbs' claim to have
not read the letter, and that that inconsistency should be
construed as evidence that Mr. Gibbs' explanation for
upholding Mr. English's termination was a pretext for
discrimination or retaliation. The Court rejects this
argument. The record reflects that Mr. Gibbs read and
considered Mr. English's written response to the
termination notice. The fact that Mr. English subsequently
wrote another letter addressing the same subject
matter and sent that letter to other officials - a letter
that Mr. Gibbs might have ultimately obtained indirectly --
does not suggest that Mr. Gibbs overlooked critical
information or failed to fully appreciate Mr. English's
position regarding the allegations against him. Quite to the
contrary, as Mr. Gibbs' termination decision notes,
“the facts concerning the events” that led to Mr.
English's termination “are largely
undisputed” (and Mr. English's April 24, 2016
letter does not materially dispute the underlying facts). To
the extent Mr. English contends that Mr. Gibbs is simply
lying when he states that he did not read Mr. English's
letter, Mr. English has not come forward with any evidence to
suggest that Mr. Gibbs did actually read his letter;
it is not uncommon for a reviewing official to receive but
ignore stray submissions that fall outside an official
record, particularly where that official already has a
written statement from each party. And, in any event, even
assuming that Mr. English is correct and Mr. Gibbs lied about
not having read Mr. English's April 24, 2016 letter, the
Court still concludes that such a fact would not suffice to
demonstrate a triable issue of fact as to whether Mr.
Gibbs' stated reasons for Mr. English's termination
were a pretext for race discrimination or retaliation,
particularly given that the facts of the underlying event
were essentially undisputed and clearly constituted a
legitimate basis for termination.
English's motion also repeatedly contends that Mr. Gibbs
violated the “master agreement” - the union
contract that contained the self-removal procedure at issue
in the case - as well as “SOP 37 15, ” an SBA
policy that prohibits workplace harassment. This Court's
August 8, 2019 Order previously considered this general
argument. As the Court explained, although an employer's
deviation from a written policy can, in some circumstances,
constitute evidence of pretext, Mr. English had not shown
that any erroneous application by Mr. Gibbs of the
self-removal provision in the master agreement was
susceptible to such an interpretation. See
generally Docket # 52 at 13-14. The same analysis
applies to Mr. English's argument that the SBA somehow
violated SOP 37 15. Simply put, Mr. English may have evidence
of some procedural irregularities in Mr. Gibbs'
termination decision, but even taking that evidence in the
light most favorable to Mr. English, those irregularities are
not so significant and irrational as to permit an inference
that they are a pretext for discrimination or retaliation.
Court has considered the remainder of Mr. English's
arguments and finds them to be without merit. Accordingly,
his motion for reconsideration (# 55) is
 At Mr. English's request, the
Court modifies the caption in this case to reflect the
current head of ...