United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
H. MILLER SENIOR UNITED STATES DISTRICT JUDGE.
before the court is defendant Performance Contracting
Inc.'s (“PCI”) motion for partial
reconsideration (Dkt. 46) and motion to dismiss (Dkt. 47).
After considering the motion and applicable law, the court is
of the opinion that both of PCI's motions should be
a Title VII sexual harassment and retaliation case. PCI
previously filed a motion for summary judgment on all of
plaintiff Yessenia Ramos's claims. Dkt. 32. The court
granted summary judgment on Ramos's sexual harassment
claim, but denied it with respect to Ramos's retaliation
claim. Dkt. 45. PCI now moves for the court to reconsider its
denial of summary judgment on the retaliation claim. Dkt. 46.
PCI also filed a new motion to dismiss for lack of subject
matter jurisdiction. Dkt. 47.
Motion for Partial Reconsideration
court previously denied PCI's motion for summary judgment
on Ramos's retaliation claim based on: (1) Ramos's
assignment to the night shift; and (2) Ramos's
reassignment to hard labor tasks. Dkt. 45. Both of these
changes occurred after Ramos reported that she had been
sexually harassed by a supervisor in August 2016.
Id. PCI again challenges the veracity of both
Standard of Review
Rule of Civil Procedure 59(e) governs a motion to amend a
final judgment when the motion is filed within twenty-eight
days of the contested judgment. Fed.R.Civ.P. 59(e). However,
Rule 54(b) governs motions to reconsider orders that do not
dispose of every claim or adjudicate the rights of all
parties to a case. Fed. R. Civ. P. 54(b); Cabral
v. Brennan, 853 F.3d 763, 766 (5th Cir. 2017); see
also Livingston Downs Racing Ass'n v. Jefferson Downs
Corp., 259 F.Supp.2d 471, 474-75 (M.D. La. 2002). Here,
the court considers PCI's motion under Rule 54(b), not
Rule 59(e), because the court's summary judgment order
preserves some of Ramos's claims.
order governed by Rule 54(b) “may be revised at any
time before the entry of a judgment adjudicating all the
claims and all the parties' rights and
liabilities.” Fed.R.Civ.P. 54(b). The court has broad
discretion to revise orders under Rule 54(b), and the
standard of review for a Rule 54(b) motion is
“typically held to be less exacting” than the
standard for Rule 59(e) motions. Livingston Downs Racing
Ass'n, 259 F.Supp.2d at 475. Thus, “the trial
court is free to reconsider and reverse its decision for any
reason it deems sufficient, even in the absence of new
evidence or an intervening change in or clarification of the
substantive law.” Austin v. Kroger Tex., L.P.,
864 F.3d 326, 336 (5th Cir. 2017) (quoting Lavespere v.
Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 185
(5th Cir. 1990)).
Night Shift Assignment
PCI argues that Ramos's reassignment to the night shift
after the August 2016 complaint was not retaliatory because
Ramos had previously worked the night shift when she first
started working for PCI. Dkt. 46 at 3-4. However, this fact
is irrelevant. Ramos worked the day shift at the time she
filed her August 2016 complaint, and PCI acknowledges that
Ramos was reassigned to the night shift following that
complaint. Id. at 4. The mere fact that Ramos had
worked the night shift some time before is irrelevant to
Ramos's allegations that her reassignment to a less
desirable shift occurred because she filed a harassment
also argues that there was no “threat” that Ramos
would actually have to work the night shift again because she
was immediately placed back on the day shift upon request.
Id. However, the court explicitly addressed this
fact in its previous order and still found that a reasonable
employee in Ramos's situation could have been dissuaded
from making a complaint under governing Fifth Circuit
precedent. Dkt. 45 at 12. PCI's argument fails.
Timing of ...