Tichenor v. Bae Systems Technology Solutions & Services, Inc.

• Court: District Court, S.D. California
• Decided: July 21, 2021
• Docket: 3:20-cv-00499
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DEBORAH J. TICHENOR, Case No.: 20cv499 JM (BGS)

12 Plaintiff, ORDER ON MOTION FOR 13 v. RECONSIDERATION 14 BAE SYSTEMS TECHNOLOGY SOLUTIONS & SERVICES, INC., et al., 15 Defendants. 16

17 18 Presently before the court is Defendant BAE Systems Technology Solutions & 19 Services, Inc. (“BAE”)’s Motion for Reconsideration under Federal Rule of Civil 20 Procedure 59(e) (Doc. No. 41). Pursuant to Local Rule 7.1(d)(1), the court finds the 21 matters presented appropriate for resolution without oral argument. For the reasons set 22 forth below, BAE’s Motion for Reconsideration is DENIED. 23 I. BACKGROUND 24 The court’s previous Order on Defendants BAE and Kari Coronado’s Motion for 25 Summary Judgment contains a thorough and accurate recitation of the basic facts of this 26 case, which the court incorporates by reference. (See Doc. No. 40 at 2-3). 27 Of relevance to the present Motion, the court previously granted summary 28 judgment for Defendants as to Plaintiff’s disability discrimination, retaliation, and hostile 1 work environment claims, finding Plaintiff had failed to exhaust her administrative 2 remedies by not timely filing charges with the Equal Employment Opportunity 3 Commission (“EEOC”) and California Department of Fair Employment and Housing 4 (“DFEH”). Id. at 10. The court further granted summary judgment for Defendants as to 5 Plaintiff’s claim for intentional infliction of emotional distress, finding this claim barred 6 by California’s Worker’s Compensation Act. Id. at 14-15. 7 The court denied summary judgment as to Plaintiff’s claim for constructive 8 discharge and request for punitive damages finding that: (1) there exists a genuine dispute 9 as to whether Plaintiff’s working conditions were objectively intolerable, and her 10 resignation coerced (id. at 12-13); and (2) Defendant BAE1 had not satisfied its burden of 11 production on Plaintiff’s punitive damages claim (id. at 16). 12 In its Order, the court specifically noted that:

13 BAE does not argue that Plaintiff’s constructive discharge 14 claims also fail if her retaliation, discrimination, and hostile work environment claims fail for being untimely. (See Doc. 15 No. 30-1 at 10 (“Only Plaintiff’s constructive discharge claim is 16 not time barred.”).) BAE also does not argue that Plaintiff’s claim for constructive discharge under Title VII fails without 17 proving an underlying claim for retaliation, discrimination, or 18 hostile work environment under Title VII. This issue may need to be addressed at a later date. 19

20 Id. at 10, fn. 7. 21 Defendant BAE now challenges whether Plaintiff’s constructive discharge claim 22 can legally stand-alone. 23 /// 24 /// 25

26 27 1 As the only claims that survived summary judgment were against Defendant BAE only, the court found Defendant Coronado’s motion for summary judgment as to punitive 28 1 II. LEGAL STANDARD 2 Federal Rule of Civil Procedure 59(e) permits a party to move a court to alter or 3 amend its judgment. “A district court may grant a Rule 59(e) motion if it ‘is presented 4 with newly discovered evidence, committed clear error, or if there is an intervening 5 change in the controlling law.’” Wood v. Ryan, 759 F.3d 1117, 1121 (9th Cir. 6 2014) (internal quotation marks omitted) (quoting McDowell v. Calderon, 197 F.3d 1253, 7 1255 (9th Cir. 1999) (en banc)) (emphasis in original). Reconsideration is an 8 “extraordinary remedy, to be used sparingly in the interests of finality and conservation 9 of judicial resources.” Kona Enterprises, Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th 10 Cir. 2000). Ultimately, “[w]hether or not to grant reconsideration is committed to the 11 sound discretion of the court.” Navajo Nation v. Norris, 331 F.3d 1041, 1046 (9th Cir. 12 2003) (citing Kona Enters., 229 F.3d at 883). 13 III. ANALYSIS 14 In the present Motion, BAE argues the court’s summary judgment order was 15 clearly erroneous, because Plaintiff cannot sustain an independent cause of action for 16 constructive discharge under Title VII and the FEHA, when the underlying claims 17 supporting the constructive discharge claim have been dismissed. (Doc. No. 41-1 at 9- 18 14). 19 In its Opposition, Plaintiff argues BAE’s Motion is both “procedurally and 20 substantively defective.” (Doc. No. 44 at 2). Specifically, Plaintiff argues that: 21 (1) procedurally “BAE provides no new facts or law, or the required explanation for why 22 the points made” in the present Motion “were not made as part of [BAE]’s original 23 motion or reply”; and (2) substantively “BAE misconstrues the law and case authority to 24 obfuscate the rule that separate untimely acts of discrimination . . . can support a timely 25 constructive discharge claim, and that constructive discharge is a claim distinct from the 26 underlying discriminatory act.” Id. at 2 (emphasis in original). 27 /// 28 /// 1 a. Propriety of BAE’s Motion 2 The court first considers the propriety of BAE’s Motion. “A Rule 59(e) motion 3 may not be used to raise arguments or present evidence for the first time when they could 4 reasonably have been raised earlier in the litigation.” Kona Enters., 229 F.3d at 890; see 5 Novato Fire Protection Dist. v. United States, 181 F.3d 1135, 1141 n.6 (9th Cir. 1999) 6 (“A district court has discretion to decline to consider an issue raised for the first time in 7 a motion for reconsideration.”). 8 Here, BAE did not previously argue Plaintiff could not sustain a stand-alone cause 9 of action for constructive discharge if her Title VII and FEHA claims were found to be 10 untimely. (See Doc. No. 40 at 10, fn. 7). In its present Motion, BAE also fails to 11 demonstrate why it could not have presented this argument to the court in its summary 12 judgment papers. A motion for reconsideration is not the proper vehicle by which a 13 litigant raises a legal argument for the first time. See Rosenfeld v. United States Dep’t of 14 Justice, 57 F.3d 803, 811 (9th Cir. 1995) (a district court does not abuse its discretion “in 15 declining to consider an argument raised for the first time on reconsideration without a 16 good excuse.”). 17 As such, BAE is not seeking “reconsideration” here, but rather requesting a new 18 ruling on arguments it could have raised earlier, but did not. This is, by itself, grounds 19 for denial. The court prefers to adjudicate issues on the merits, when the merits are 20 properly presented, and not under the pretense that this court’s earlier ruling was clearly 21 erroneous. Accordingly, the court rejects BAE’s effort to backdoor a legal argument that 22 should have been initially presented and briefed in the underlying motion. For these 23 reasons, BAE’s Motion is DENIED as procedurally defective. As a courtesy to the 24 Parties, however, the court respectfully shares its tentative analysis on the underlying 25 merits of BAE’s request with the expectation that it may guide the Parties on the question 26 of whether to renew the challenge on the viability of Plaintiff’s constructive discharge 27 claim in a proper manner. 28 /// 1 b. Constructive Discharge 2 In its Motion, BAE argues the court’s summary judgment was clearly erroneous 3 because summary judgment should have been granted on Plaintiff’s constructive 4 discharge claim, as a consequence of the court granting summary judgment as to 5 Plaintiff’s Title VII and FEHA claims. (Doc. No. 41-1 at 9-14). “Clear error or manifest 6 injustice occurs when the reviewing court on the entire record is left with the definite and 7 firm conviction that a mistake has been committed.” Young v. Wolfe, CV 07-03190 8 RSWL-AJWx, 2017 WL 2798497, at *5 (C.D. Cal. June 27, 2017) (quotations omitted). 9 The substantive issue is whether constructive discharge can constitute an 10 independent cause of action under Title VII and the FEHA. First, as to Title VII, BAE’s 11 argument constructive discharge cannot act as a distinct, standalone claim was already 12 foreclosed by a majority of the Supreme Court in Green v. Brennan, 136 S. Ct. 1769 13 (2016). 14 In Green, petitioner was passed over for a vacant postmaster position in 2008. 15 Id. at 1774. Shortly thereafter, petitioner complained he was denied the promotion 16 because of his race. Id. In 2009, two of petitioner’s supervisors accused petitioner of 17 intentionally delaying the mail—a criminal offense. Id. Petitioner and the Postal Service 18 subsequently signed an agreement on December 16, 2009, whereby the Postal Service 19 agreed not to pursue criminal charges in exchange for petitioner’s promise to either retire 20 or report for duty in a different state at a considerably lower salary. Id. Petitioner chose 21 to retire and submitted his resignation on February 9, 2010. Id. 22 On March 22, 2010—41 days after submitting his resignation paperwork to the 23 Postal Service, but 96 days after signing the settlement agreement—petitioner contacted 24 an EEOC counselor to report an unlawful constructive discharge. Id. Petitioner 25 subsequently filed suit in the United States District Court for the District of Colorado 26 asserting, inter alia, that the Postal Service had constructively discharged him. Id. at 27 1775. 28 /// 1 The District Court granted summary judgment in favor of the Postal Service, 2 finding Petitioner had failed to make timely contact with an EEOC counselor “within 45 3 days of the ‘matter alleged to be discriminatory[.]’” Id. The Tenth Circuit affirmed, 4 finding the 45-day limitations period began to run when both Parties signed the 5 settlement agreement. Id. 6 The Supreme Court reversed, holding that: 7 [T]he limitations period should begin to run for a constructive- 8 discharge claim only after a plaintiff resigns. At that point— and not before—he can file a suit for constructive discharge. 9 So only at that point—and not before—does he have a 10 “complete and present” cause of action. And only after he has a complete and present cause of action does a limitations period 11 ordinarily begin to run. 12 Id. at 1777. 13 In so doing, the majority of the Supreme Court emphasized that the Pa. State 14 Police v. Suders, 542 U.S. 129 (2004) decision “expressly held that constructive 15 discharge is a claim distinct from the underlying discriminatory act” and this holding was 16 “no mere dictum.” Id. at 1779 (emphasis added). Specifically, the majority rejected 17 Justice Thomas’ dissenting opinion that constructive discharge is not a separate claim, 18 but “merely allows a plaintiff to expand any underlying discrimination claim to include 19 the damages from leaving his job, thereby increasing his available remedies.” Id. 20 The majority also rejected Justice Alito’s concurring opinion, which set forth two 21 “kinds” of constructive discharge: (1) a “first kind” that “occurs when an employer 22 subjects an employee to intolerable conditions with the specific discriminatory intent of 23 forcing the employee to quit”; and (2) a “second kind” that “occurs when an employer 24 imposes intolerable conditions for discriminatory reasons but does not intend to force an 25 employee to resign.” Id. at 1785-86. Rather than a stand-alone claim, Justice Alito 26 construed this “second kind” of constructive discharge as “a basis for increasing damages 27 on the underlying discrimination claim” i.e., a “‘constructive discharge damages 28 1 enhancement.’” Id. at 1787. The majority of the court, however, held Justice Alito’s 2 “sometimes-a-claim-sometimes not theory” was “contrary to the constructive discharge 3 claim.” Id. at 1779-80. 4 The court acknowledges that post-Green, there is still some dispute in the lower 5 courts as to whether constructive discharge can operate as a stand-alone claim. See 6 Ballard v. Terros Inc., No. CV-19-05658-PHX-DWL, 2021 WL 1597892, at *3 n. 1 (D. 7 Ariz. Apr. 23, 2021) (“The law is unsettled as to whether constructive discharge ever 8 operates as a stand-alone claim.”). The court’s reading of Green, however, is consistent 9 with other courts that have directly addressed this aspect of the Supreme Court’s 10 decision, including this District. See Oluvic v. Azusa Pac. Univ., No. 3:18-CV-983-L- 11 KSC, 2019 WL 669633, at *3 (S.D. Cal. Feb. 15, 2019) (finding defendant’s argument 12 that “constructive discharge is not a freestanding cause of action” had been “rejected” by 13 the Supreme Court in Green); Molina v. Wells Fargo Bank, Nat’l Ass’n, No. 2:16-CV- 14 207-DN, 2017 WL 1184047, at *10 (D. Utah Mar. 29, 2017) (noting a majority of the 15 Supreme Court in Green “explained that constructive discharge is a separate claim.”); 16 Pace v. Alfa Mut. Ins. Co., No. 2:13-CV-697-WKW, 2016 WL 4419290, at *3 (M.D. 17 Ala. Aug. 17, 2016) (“[T]he United States Supreme Court recently held that constructive 18 discharge is always a separate claim.”). 19 Nevertheless, BAE argues Plaintiff’s constructive discharge claim “necessarily 20 relies” on the survival of Plaintiff’s other claims. (Doc. No. 41-1 at 7). Constructive 21 discharge, however, is a distinct claim that requires Plaintiff to prove different elements. 22 Specifically, “[t]he [constructive discharge] doctrine contemplates a situation in which an 23 employer discriminates against an employee to the point such that his ‘working 24 conditions become so intolerable that a reasonable person in the employee’s position 25 would have felt compelled to resign.’” Green, 136 S. Ct. at 1776. “A claim of 26 constructive discharge, therefore, has two basic elements. A plaintiff must prove first 27 that he was discriminated against by his employer to the point where a reasonable person 28 1 in his position would have felt compelled to resign[,]” and he “must also show that he 2 actually resigned.” Id. at 1777. 3 Instead, BAE appears to be “operating under the misperception” that Plaintiff 4 “cannot prevail on a discrimination-based constructive discharge-claim without an 5 accompanying stand-alone claim for discrimination.” Murray v. Williams, 6 No. 210CV00968JADGWF, 2017 WL 1013867, at *2 (D. Nev. Mar. 14, 2017). But 7 there is nothing about the judgment being granted against Plaintiff on her Title VII and 8 FEHA claims for untimeliness, that “prevents [Plaintiff] from prevailing on a claim for 9 constructive discharge under a discrimination theory.” Id. at *2 (allowing plaintiff’s 10 “sole remaining claim” for Title VII constructive discharge to go forward). 11 To the extent BAE is arguing Plaintiff cannot now prove “discrimination to the 12 point where a reasonable person would resign” (Doc. No. 45 at 2), the court’s summary 13 judgment order did not find that any alleged mistreatment BAE directed toward Plaintiff 14 was insufficient to rise to the level of discrimination. Instead, the court’s summary 15 judgment order found only that Plaintiff’s Title VII and FEHA claims were untimely. 16 (Doc. No. 40 at 5-10). 17 Finally, to the extent Plaintiff’s constructive discharge claim is premised on the 18 FEHA, BAE has not cited—and the court has not found—any California state authority 19 that prohibits constructive discharge from operating as an independent, standalone claim. 20 As a general principle however, “[s]tate court cases in discrimination and wrongful 21 discharge contexts have generally followed the lead of the federal courts.” Turner v. 22 Anheuser-Busch, Inc., 7 Cal. 4th 1238, 1246 (1994). 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 |}IV. CONCLUSION 2 For the reasons stated in Part HI(a) of the Order, the court DENIES Defendant 3 || BAE’s Motion for Reconsideration. 4 IT IS SO ORDERED. 5 || DATED: July 21, 2021 kg tote 6 *F Y T, ILLER nited States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28