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Ramos v. Performance Contracting Inc.

United States District Court, S.D. Texas, Houston Division

May 3, 2019

Yessenia Ramos, Plaintiff,
v.
Performance Contracting Inc., Defendant.

          MEMORANDUM OPINION AND ORDER

          GRAY H. MILLER SENIOR UNITED STATES DISTRICT JUDGE.

         Pending 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 DENIED.

         I. Background

         This is 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.

         II. Analysis

         A. Motion for Partial Reconsideration

         The 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 claims.

         1. Standard of Review

         Federal 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.

         An 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)).

         2. Night Shift Assignment

         First, 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 complaint.

         PCI 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.

         3. Timing of ...


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