United States District Court, E.D. Kentucky, Central Division, Lexington
EASA SHADEH, Plaintiff.
GLENN BUICK-GMC TRUCKS, LLC, Defendant.
MEMORANDUM OPINION AND ORDER
KAREN K. CALDWELL, Chief District Judge.
This matter is before the Court on defendant's motion for reconsideration of the Court's December 9, 2014 Opinion and Order and on plaintiff's motion for reconsideration of the Court's December 16, 2014 Order. (DE 27; DE 31). For reasons stated below, the Court will deny both motions.
A. Factual Background
Plaintiff Easa Shadeh, who is of Arabic descent, alleges that his employer, Glenn Buick, discriminated and retaliated against him during the course of employment at the car dealership. (DE 1 Compl., at 4-5.) In his complaint, Shadeh describes pervasive discriminatory conduct by a co-worker, Charles Bush, who is black. ( See DE 1 Compl., at 4-5; DE 27-2 Pl.'s Dep., at 2-10.) Shadeh also asserts that Mark Franco, his Assistant Manager, participated in some of the alleged instances of discrimination. ( See, e.g., DE 27-2 Pl.'s Dep., at 7 (stating that Bush and Franco told Shadeh that his family recruits their children to become suicide bombers); DE 27-2 Pl.'s Dep., at 8 (alleging that Bush and Franco asked Shadeh how many of his family members were 9/11 terrorists); DE 27-2 Pl.'s Dep., at 8 (asserting that Bush and Franco told Shadeh and his family to go "back to where [they] belong"); DE 27-2 Pl.'s Dep., at 8 (claiming that Franco blamed Shadeh for being the reason that "Americans couldn't find jobs").)
Additionally, Shadeh contends that Tim Burton, Glenn Buick's General Manager, and Steve Goldsberry, an Office Manager, knew of and assented to Bush's conduct. ( See, e.g., DE 27-2 Pl.'s Dep., at 4-5 (stating that after Burton witnessed-or Shadeh reported- Bush's behavior, Burton "said he didn't mind Charles Bush harassing [Shadeh] because [Shadeh and Bush] were both minorities"); DE 27-2 Pl.'s Dep., at 6 (asserting that Goldsberry said nothing after witnessing Bush ask Shadeh if his family members celebrated the anniversary of 9/11 and after witnessing Bush declare that Shadeh's Bible was "just for show... [because h]e's one of those goddamn Muslims"); DE 27-2 Pl.'s Dep., at 7 (claiming that Burton chuckled in response to witnessing Bush's pronouncement that Shadeh recruits his children to be suicide bombers).)
After allowing the harassment to continue, Shadeh claims that Burton contrived a reason to terminate his employment at Glenn Buick. (DE 31-1 EEOC Form, at 1.)
B. Procedural History
On August 12, 2013, Shadeh filed a charge of discrimination with the Lexington-Fayette Urban County Human Rights Commission ("HRC") and the Equal Employment Opportunity Commission ("EEOC") against his former employer, Glenn Buick. (DE 31-1 EEOC Form, at 1.) Shadeh was not represented by counsel during the proceedings before the EEOC. (DE 31 Pl.'s Mot., at 3.) On February 19, 2014, the EEOC issued a Dismissal and Notice of Shadeh's Suit Rights. (DE 1-1 EEOC Dismissal, at 2-3.) Shadeh then filed a complaint in this Court alleging discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII") and 42 U.S.C. § 1981. (DE 1). On June 4, 2014, Glenn Buick answered the complaint. (DE 4).
Shadeh moved to strike twelve of Glenn Buick's affirmative defenses. (DE 12). The Court granted the motion in part and denied the motion in part. ( See DE 23, at 8.) One of the stricken defenses asserted that Shadeh "failed to report and/or utilize the Defendant's Equal Employment Opportunity processes and procedures... pursuant to Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998)." (DE 4 Answer, at 3.) The Court determined that the defense should be stricken because both Supreme Court cases held that the affirmative defense is unavailable if the employer takes a "tangible employment action, " and, here, Glenn Buick terminated Shadeh. (DE 23, at 4; see also Faragher, 524 U.S. at 807-08; Ellerth, 524 U.S. at 765.)
After the Court granted Shadeh's motion to strike in part and denied the motion in part, Glenn Buick moved to file an amended answer. (DE 24). The Court granted Glenn Buick's motion. (DE 29). In the amended answer, Glenn Buick removed the stricken defenses, kept the defenses that were not stricken, and added a defense stating that "Plaintiff's Complaint is barred due to his failure to exhaust his administrative remedies before the EEOC." (DE 30 Am. Answer, at 3.)
A court may grant a motion for reconsideration of a pretrial order for any of the following reasons: (1) mistake; (2) newly discovered evidence; (3) party misconduct; or (4) any other reason that justifies relief. Fed.R.Civ.P. 60(b). A motion for reconsideration is not, however, a second bite at the apple. See Kmart Corp. v. 21st Century Pets, Inc., 54 F.App'x 220, ...