IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
July 19, 2005
WILMA J. FARMER, PLAINTIFF,
CAMDEN CITY BOARD OF EDUCATION, ANNETTE D. KNOX, AND JOHN DOES 1-10, DEFENDANTS.
The opinion of the court was delivered by: Simandle, U.S. District Judge
Plaintiff, Wilma J. Farmer, brought suit against the Camden City Board of Education ("Camden Board" or "Board") and its Superintendent, Annette D. Knox, charging them with age discrimination under 42 U.S.C. § 1983, the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634, and the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5-1 to -49. Defendants subsequently moved for summary judgment seeking dismissal of the Complaint, which motion this Court granted in its entirety. The Court explained its reasons therefor in a 38-page Opinion, which Plaintiff now asks the Court to reconsider under L. Civ. R. 7.1(i).*fn1 For the reasons expressed below, Plaintiff's attempt to reargue and relitigate its claims does not comply with the limited purposes of the reconsideration rule. In any event, the arguments which Plaintiff has presented to the Court for the first time are without merit. The motion for reconsideration will be denied.
Plaintiff was hired by the Camden City Board of Education ("Camden Board" or "Board") as a third grade elementary school teacher almost 52 years ago. (Farmer Dep. Tr. Def. Ex. A at 7:18-25.) In 2000, after having held other intermediate level faculty positions, Plaintiff was promoted to Assistant Superintendent of Administration and Support Services. (Id. at 15:3-13.) Ms. Farmer was holding that position at the time Defendant Annette D. Knox became the Superintendent of the Camden City School District in January, 2001. (Id. at 18:1-8.)
Shortly thereafter, the position of Assistant Superintendent of Curriculum and Instruction became vacant. On January 31, 2001, Plaintiff sent a letter to Ms. Knox requesting to be appointed to that position. (Pl. Ex. G.) By letter dated February 5, 2001, Defendant Knox responded to Plaintiff's written request. The letter stated: Dear Dr. Farmer:
This letter is written in response to your request for a transfer to the position of Assistant Superintendent of Curriculum and Instruction.
I am aware of your many years of dedicated service to the Camden City Public Schools in the area of curriculum and instruction. Please know that I have great respect for all that you have done for the district and its students during your tenure; however, I am interested in moving in a direction which requires a long term commitment to the district beyond my contractual obligations of 3.5 years.
Thank you for your interest in this position. Hopefully the district can count on you to continue the work you are currently engaged in as the Assistant Superintendent for Administrative and Support Services.
Annette D. Knox, Superintendent of Schools
(Pl. Ex. H.) Defendant Knox claims that it was her understanding at the time she sent the letter that Plaintiff was planning on retiring within the year. Ms. Knox claims that she learned of Plaintiff's intention to retire from a conversation with Karen Murray and Phil Freeman, then President of the Board. (2/26/04 Knox Dep. Tr. Def. Ex. C at 135:1-6; 2/18/04 Freeman Tr. Def. Ex. B at 13:19-14:3.) During another conversation with Phillip Freeman, Knox allegedly told Mr. Freeman that Plaintiff "had been around for a long time, too long." (2/18/04 Freeman Dep. Tr. Def. Ex. B at 31:11-16.)
On February 12, 2001, Defendant Knox sent a letter to Plaintiff reprimanding her for allegedly having rescheduled Parent/Teacher Report Card Conferences without her authorization.*fn3 On June 6, 2001 Defendant Knox sent to Plaintiff another letter reprimanding her for an act of "insubordination." (June 6, 2001 ltr., Def. Ex. R.) Specifically, Defendant Knox accused Plaintiff of sending a memorandum regarding changes to the final examination schedule without having first consulted her. In that letter Defendant Knox additionally re-emphasized that all communications to principals were to be sent under cover of her signature.
Meanwhile, on February 13, 2001, the Board publicly announced the opening for the position of Assistant Superintendent of Curriculum and Instruction. (Def. Exs. I, J.) On Monday, June 18, 2001, the interview committee interviewed four applicants, including Plaintiff, for that position. Of the applicants, Charles A. Highsmith received the highest score by a significant margin and was ultimately selected to fill the position.*fn4 Notably, Defendant Knox was not a member of the interview committee.
Also on June 18, 2001, Defendant Knox sent a letter to Plaintiff informing her that the Board would be considering "action which will impact upon your employment status with the Camden Board of Education." (Def. Ex. T.) Meetings were scheduled for June 21, 2001 and June 25, 2001 to discuss this matter as well as other personnel decisions involving no fewer than twelve other employees. (Def. Ex. U.) Following the June 25, 2001 Board meeting, Plaintiff was transferred to the position of Director of Curriculum and Instruction. Following the transfer, Plaintiff's pay remained unchanged. On April 8, 2002, Plaintiff Farmer notified the Board of her intention to retire effective June 30, 2002.*fn5 (Def. Ex. W.)
Plaintiff filed her Complaint in New Jersey Superior Court on December 24, 2002, and the case was removed to this Court on February 14, 2003. Defendants subsequently moved for summary judgment seeking dismissal of the Complaint in its entirety. [Docket Item 13.] By Opinion and Order dated March 28, 2005, this Court granted Defendants' motion. [Docket Items 17, 18.] Plaintiff then filed a timely appeal of the Court's decision with the Third Circuit Court of Appeals. That appeal has been stayed pending disposition of the instant motion.*fn6
II. STANDARD OF REVIEW
Local Civil Rule 7.1(i) of the United States District Court, District of New Jersey, governs the instant motion for reconsideration. That rule requires that the moving party set forth the factual matters or controlling legal authority that it believes the court overlooked when rendering its initial decision. L. Civ. R. 7.1(i). Whether to grant reconsideration is a matter within the district court's discretion, but it should only be granted where such facts or legal authority were indeed presented but overlooked. DeLong Corp. v. Raymond Int'l, Inc., 622 F.2d 1135, 1140 (3d Cir. 1980), overruled on other grounds by Croker v. Boeing Co., 662 F.2d 975 (3d Cir. 1981); Williams v. Sullivan, 818 F. Supp. 92, 93 (D.N.J. 1993).
A "motion for reconsideration is not a vehicle to reargue the motion or to present evidence which should have been raised before." Bermingham v. Sony Corp. of America, Inc., 820 F. Supp. 834, 856-67 (D.N.J. 1992), aff'd, 37 F.3d 1485 (3d Cir. 1994). A motion for reconsideration is improper when it is used solely to ask the court to rethink what it has already thought through - rightly or wrongly. Oritani Savings & Loan Assoc. v. Fidelity & Deposit Co., 744 F. Supp. 1311, 1314 (D.N.J. 1990)(citing Above the Belt v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983)), rev'd on other grounds, 989 F.2d 635 (3d Cir. 1993). Finally, a motion for reconsideration does not allow a party to "simply change theories and [try] again," thus giving that party "a second bite at the apple." Bhatnagar v. Surrendra Overseas Ltd., 52 F.3d 1220, 1231 (3d Cir. 1995). However, that is precisely what Plaintiff here seeks to do by the instant motion.
Plaintiff presently argues that the Court overlooked controlling authority in its March 28, 2005 Opinion by failing to consider direct evidence of age discrimination and, therefore, to analyze Plaintiff's discrimination claims under Price Waterhouse v. Hopkins, 490 U.S. 220 (1989) and Fakete v. Aetna, 308 F.3d 335 (3d Cir. 2002). In the first instance, as explained below, Plaintiff is mistaken in the assumption that the Court did not consider those cases. Even more troubling, though, is the fact that Plaintiff failed to bring either case to the Court's attention in any of its written submissions to the Court, including its lengthy opposition to Defendants' motion for summary judgment.*fn7 Whether those omissions were calculated is of no consequence here, though, because Plaintiff's arguments are, as they were before, void of any merit.
To be sure, the Court in its earlier Opinion did not discuss its conclusion that Plaintiff had failed to present any direct evidence of age discrimination warranting a discussion of Price Waterhouse or Fakete. Instead, the Court implicitly held that Plaintiff had offered no direct evidence of age discrimination when the Court applied the legal test used in cases involving "the absence of direct evidence . . . ." Farmer, 2005 U.S. Dist. LEXIS 7339, at *31 (D.N.J. March 28, 2005). That the Court did not explicitly address the "direct evidence" argument in its Opinion, though, does not mean that the Court failed to consider that argument. Indeed, the Court carefully considered all of Plaintiff's arguments and, for the reasons now explained, concluded that they were wholly meritless.
To prevail on a claim under the ADEA for failure to promote a person who is at least forty years old because of her age, a plaintiff must show that her age "actually motivated" and "had a determinative influence on" the employer's decision not to promote her. Fakete, 308 F.3d at 337 (citing Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 141 (2000); Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)). An ADEA plaintiff can satisfy this burden in one of two ways: (1) "present direct evidence of discrimination that meets the requirements of Justice O'Connor's controlling opinion in Price Waterhouse"*fn8 or (2) present indirect evidence of discrimination that satisfies "the familiar three-step framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)." Fakete. 308 F.3d at 337-38.*fn9
Under Price Waterhouse, 490 U.S. 228, when an ADEA plaintiff alleging unlawful failure to promote presents "direct evidence" that her age was a "substantial factor in the decision," the burden of persuasion as to the issue of causation shifts to the employer to prove that it would have failed to promote the plaintiff even but for her age. Fakete, 308 F.3d at 338. "Direct evidence" is evidence sufficient to allow the jury to conclude that "the `decision makers placed substantial negative reliance on [the plaintiff's age] in reaching their decision'" to fire her. Id. (quoting Connors v. Chrysler Fin. Corp., 160 F.3d 971, 976 (3d Cir. 1998) (quoting Price Waterhouse, 490 U.S. at 277)). Direct evidence "leads not only to a ready logical inference of bias, but also to a rational presumption that the person expressing bias acted on it" when the challenged employment decision was made. Fakete, 308 F.3d 1t 338-39 (quoting Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1097 (3d Cir. 1995)). In other words, the evidence must be "so revealing of discriminatory animus that it is not necessary to rely upon any presumption from the prima facie case . . . ." Carter v. Potter, 2004 U.S. Dist. LEXIS 25677, at *13 (E.D.Pa. Dec. 21, 2004) (quoting Armbruster c. Unisys Corp., 32 F.3d 768, 778 (3d Cir. 1994)). Plaintiff here has failed to present any such evidence.
First, Plaintiff for the first time urges the Court to consider the February 5, 2001 letter from Defendant Knox to Plaintiff as direct evidence of age discrimination. That letter stated, among other things, that Defendant Knox was denying Plaintiff's promotion request because she needed "a long term commitment to the district beyond . . . 3.5 years." (Pl. Ex. H.) Importantly, the next and final paragraph of the letter stated: "Hopefully the district can count on you to continue the work you are currently engaged in as the Assistant Superintendent for Administrative and Support Services." (Id.) On its face, the letter read as a whole conveys Defendant Knox's belief, mistaken or not, that Mrs. Farmer did not plan on working in the school district for more than 3.5 years. Far from leading to a "ready logical inference of bias," the statement reflects a variety of scenarios, the most likely among them being the possibility that Mrs. Farmer would retire from her job in the next several years.
In any event, such an implicit reference to Plaintiff's retirement plans does not constitute direct evidence of unlawful age discrimination. In Colosi v. Electri-Flex Co., 965 F.2d 500 (7th Cir. 1992), the court concluded that an employer's inquiry into the plaintiff's retirement plans did not constitute direct evidence of age discrimination. Judge Posner, writing for a majority, concluded that "a company has a legitimate interest in learning its employees' plans for the future, and it would be absurd to deter such inquiries by treating them as evidence of unlawful age discrimination." Id. at 502.
Similarly, in Rowan v. Washington, 360 F.3d 544 (6th Cir. 2004), the court held that a statement by an employer making reference to the plaintiff's retirement plans was not direct evidence of unlawful conduct. There, certain of the plaintiffs' supervisors had allegedly made comments regarding the need to lower the average age of the employees at the company. Based on evidence that the company's decision to lay off the plaintiffs was motivated by independent findings that a number of the company's highly skilled employees would likely retire soon, the court determined that "there is every indication that concern for the average age was only motivated by a perfectly legitimate concern about upcoming retirements. Being worried about one's best workers retiring is a far cry from being motivated by `inaccurate and stigmatizing stereotypes.' In this context, statements about average age do not amount to direct evidence of discrimination." Id. at 549. Finally, the court in Leibforth v. Belvidere Nat'l Bank, 337 F.3d 931, 934 (7th Cir. 2003), concluded that an employer's statement that "it was in the [employer's] best interest to set [the plaintiff's] retirement date because she refused to do so," was not direct evidence of age discrimination.
Taken together, these cases support the conclusion that Ms. Knox's consideration of Plaintiff's retirement plans as one factor in her determination not to promote Plaintiff was entirely appropriate. For that reason, the February 5, 2001 letter is not direct evidence of unlawful age discrimination. Even if this conclusion is in error, though, Plaintiff is still unable to satisfy the Price Waterhouse test.
As already noted, once an ADEA plaintiff presents direct evidence of unlawful discrimination, the burden of persuasion as to the issue of causation shifts to the employer to prove that it would not have promoted the plaintiff even without regard to her age. Price Waterhouse, 490 U.S. 228; Fakete, 308 F.3d at 338. Here, as the Court discussed in its March 28, 2005 Opinion, after interviewing several candidates, including Plaintiff, the interview committee selected Charles A. Highsmith for the position of Assistant Superintendent of Curriculum and Instruction. Not only did Mr. Highsmith receive the highest score out of all the applicants, he did so by a significant margin, scoring more than twenty points higher than Ms. Farmer out of a total 200.*fn10 For that reason, Ms. Farmer would not have received her promotion if based solely on neutral, non-age related criteria.
Similarly, the alleged statement by Superintendent Knox to the effect that Plaintiff had been around for entirely too long is not direct evidence of age discrimination.*fn11 Specifically, Plaintiffs offer no proof that the statement was made in relation to the decision not to promote Plaintiff. Further, Plaintiff was twice reprimanded for insubordination to Knox's directives between February 12 and June 6, 2001, as discussed above, before the interview committee was convened. Indeed, Ms. Knox was not even a member of the interview committee that selected Mr. Highsmith.
For the reasons expressed in this Opinion, Plaintiff's motion for reconsideration is denied. The Court hopes that its resolution of the issues raised by Plaintiff for the first time in the instant motion will not signal to either party that Local Civil Rule 7.1(i) should be used as a substitute for appeal. The purpose of that provision is, and remains, to allow a district court the opportunity to consider factual matters or controlling legal authority that were presented, but overlooked, when rendering its initial decision, and not, as the Court is skeptical was the case here, to allow a party to take "a second bite at the apple" under a new theory after its first arguments fell short. Bhatnagar, 52 F.3d at 1231. The Court has taken the opportunity to make explicit the reasons why, even when all favorable inferences were extended to Plaintiff, the record is bereft of direct evidence of age discrimination.
The accompanying Order is entered.
This matter came before the Court upon the motion for reconsideration by Plaintiff Wilma J. Farmer under Local Civil Rule 7.1(i) [Docket Item 19]; and
The Court having considered the parties' written submissions; and
For the reasons stated in the Opinion of today's date;
IT IS this 19th day of July 2005 hereby
ORDERED that the motion for reconsideration by Plaintiff Wilma J. Farmer [Docket Item 19] is DENIED.
JEROME B. SIMANDLE U.S. District Judge