Lowery v. Federal Exp. Corp.

• Citation: 426 F.3d 817
• Decision Date: 20 October 2005
• Docket Number: No. 04-5958.,04-5958.
• Parties: Myron LOWERY, Plaintiff-Appellant, v. FEDERAL EXPRESS CORPORATION; and FedEx Express, Inc., a wholly owned subsidiary of Federal Express Corporation, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

426 F.3d 817

Myron LOWERY, Plaintiff-Appellant, v. FEDERAL EXPRESS CORPORATION; and FedEx Express, Inc., a wholly owned subsidiary of Federal Express Corporation, Defendants-Appellees.

No. 04-5958.

United States Court of Appeals, Sixth Circuit.

Argued: September 14, 2005.

Decided and Filed: October 20, 2005.

COPYRIGHT MATERIAL OMITTED

ARGUED: Donald A. Donati, Donati Law Firm, Memphis, Tennessee, for Appellant. Frederick L. Douglas, Federal Express Corporation, Memphis, Tennessee, for Appellees. ON BRIEF: Donald A. Donati, William B. Ryan, Donati Law Firm, Memphis, Tennessee, for Appellant. Frederick L. Douglas, Federal Express Corporation, Memphis, Tennessee, for Appellees.

Before: GUY, BATCHELDER, and GILMAN, Circuit Judges.

OPINION

RALPH B. GUY, Circuit Judge.

Plaintiff Myron Lowery appeals from the entry of partial summary judgment in favor of defendants Federal Express Corporation and FedEx Express, Inc., on his claims of race discrimination and retaliation in violation of Title VII. The district court also denied summary judgment to defendants on plaintiff's cause of action for breach of contract, and granted the plaintiff's request for entry of final judgment on the Title VII claims pursuant to Fed.R.Civ.P. 54(b). For the reasons discussed below, we find the Rule 54(b) certification was not proper in this case and dismiss the appeal for lack of jurisdiction.

I.

Plaintiff was hired by Federal Express Corporation in 1990 and was promoted to the position of Manager of Corporate Relations in 1994. In 1998, plaintiff applied but was not selected for the position of Manager of Media Relations. Plaintiff filed an internal grievance and during the process complained that the decision was racially discriminatory. The dispute was settled with plaintiff releasing all claims relating to the promotion, including those arising under Title VII, in exchange for a pay raise and a promise that he would not be retaliated against for filing the grievance. It is the promise not to retaliate that forms the basis of plaintiff's cause of action for breach of contract.

A corporate-wide reorganization was implemented in 2000, which affected all the departments under the direction of Vice-President of Corporate Communications William Margaritis. Margaritis, who indirectly supervised plaintiff and had reviewed plaintiff's earlier grievance, led the reorganization process for the corporate communications managers. Plaintiff was the only African-American communications manager and the only manager whose work group was abolished. Although plaintiff expressed interest in three different positions, plaintiff was assigned to be manager of communications for the Air Operations Division/Central Support Services Division. As a result of his reassignment, plaintiff claimed he was denied a pay increase that other managers received, was later given a smaller pay increase, and lost opportunities for future advancement.

Plaintiff filed a charge of discrimination with the EEOC in December 2000, and commenced this action in January 2002. Plaintiff alleged federal causes of action for race discrimination and retaliation under Title VII and later amended his complaint to add a state law cause of action for breach of contract. Defendants moved for summary judgment on all counts, which the district court granted in part and denied in part. The district court found that plaintiff could not establish the adverse employment action that is required to prove both race discrimination and retaliation under Title VII. Then, electing to exercise discretion over the state law cause of action, the district court concluded (1) that the contractual right not to be retaliated against did not require proof of an adverse employment action; and (2) that there were genuine issues of fact with regard to whether plaintiff was retaliated against in breach of the settlement agreement. Plaintiff filed a motion for reconsideration in reliance on White v. Burlington Northern and Santa Fe Railway, 364 F.3d 789 (6th Cir.2004) (en banc), petition for cert. filed, (Aug. 24, 2005) (No. 05-259), which was denied.

At plaintiff's request, the district court determined that there was no just reason for delay and directed entry of final judgment on plaintiff's Title VII claims under Rule 54(b). This appeal followed.

II.

Although defendants have not challenged the Rule 54(b) certification, this court is without appellate jurisdiction if the certification was improper. Corrosioneering, Inc. v. Thyssen Envtl. Sys., Inc., 807 F.2d 1279, 1282 (6th Cir.1986). For this reason, we are compelled to consider whether the entry of final judgment was appropriate in this case. Daleure v. Commonwealth of Kentucky, 269 F.3d 540, 543 (6th Cir.2001); Justice v. Pendleton Place Apartments, 40 F.3d 139, 141 (6th Cir.1994). "Although Rule 54(b) relaxes the traditional finality requirement for appellate review, it does not tolerate immediate appeal of every action taken by a district court." Gen. Acquisition, Inc. v. GenCorp, Inc., 23 F.3d 1022, 1026 (6th Cir.1994). Rather, the rule "attempts to strike a balance between the undesirability of piecemeal appeals and the need for making review available at a time that best serves the needs of the parties." Solomon v. Aetna Life Ins. Co., 782 F.2d 58, 60 (6th Cir.1986). "Not all final judgments on individual claims should be immediately appealable, even if they are in some sense separable from the remaining unresolved claims." Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 8, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980).

A. Multiple Claims

The first requirement under Rule 54(b) — that the district court expressly "direct the entry of a final judgment as to one or more but fewer than all of the claims or parties" — is reviewed de novo. Gen. Acquisition, 23 F.3d at 1027; see also GenCorp., Inc. v. Olin Corp., 390 F.3d 433, 442 (6th Cir.2004), cert. denied, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___, 74 U.S.L.W. 3026 (U.S. June 27, 2005) (No. 05-11). The judgment must represent "`an ultimate disposition of an individual claim entered in the course of a multiple claims action.'" Curtiss-Wright, 446 U.S. at 7, 100 S.Ct. 1460 (citation omitted). Although the decision granting partial summary judgment finally resolved plaintiff's Title VII claims, it is less than clear that the decision entirely resolved an individual claim in a multiple claims action.

This court has held that "[e]ven though different theories of liability may have been asserted, the concept of a `claim' under Rule 54(b) denotes `the aggregate of operative facts which give rise to a right enforceable in the courts.'" McIntyre v. First Nat'l Bank of Cincinnati, 585 F.2d 190, 192 (6th Cir.1978) (citations omitted). In McIntyre, the plaintiff alleged federal and state causes of action arising out of the same events. The federal claims were tried first, judgment was entered, and the order was certified for immediate appeal under Rule 54(b). This court dismissed the appeal, concluding that the state and federal causes of action should be considered a single claim for purposes of Rule 54(b) because they arose out of the same aggregate of operative facts. Id. at 191-92.

Conceptually, it is not difficult to imagine that a cause of action for breach of contract could involve a distinct legal right from statutory claims under Title VII; but, here, the contractual promise was that plaintiff would not be retaliated against for filing the grievance. That is, the alleged breach was the retaliation. Even assuming, as the district court concluded, that the breach of contract claim did not require proof of an adverse employment action (a question not before us), both causes of action arose out of the same aggregate of operative facts and seek to recover for the same underlying injury. Compare GenCorp, 390 F.3d at 442 (claims did not share single aggregate of operative facts), with Daleure, 269 F.3d at 543 (different theories of damages for same underlying injury), and Gen. Acquisition, 23 F.3d at 1029 (three different theories of liability were single claim). Nor is it clear whether plaintiff could recover economic damages for both breach of contract and retaliation under Title VII. Gen. Acquisition, 23 F.3d at 1028-29 (multiple recoveries test). Even if we were to conclude that the claims were sufficiently separate to be considered multiple claims, it was an abuse of discretion to find there was no just reason for delay.

B. Reason for Delay

The second requirement of Rule 54(b) — that the district court determine that there is no just reason for delay — requires consideration of "judicial administrative interests as well as the equities involved." Curtiss-Wright, 446 U.S. at 8, 100 S.Ct. 1460. The reviewing court may not "reweigh the equities or reassess the facts," but must "make sure that the conclusions derived from those weighings and assessments are juridically sound and supported by the record." Id. at 10, 100 S.Ct. 1460; see also Gen. Acquisition, 23 F.3d at 1030. This court has identified the following nonexhaustive list of factors to be considered:

(1) the relationship between the adjudicated and unadjudicated claims; (2) the possibility that the need for review might or might not be mooted by future developments in the district court; (3) the possibility that the reviewing court might be obliged to consider the same issue a second time; (4) the presence or absence of a claim or counterclaim which could result in set-off against the judgment sought to be made final; (5) miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense and the like.

Gen. Acquisition, 23 F.3d at 1030 (citations omitted). The district court must "determine whether `the needs of the parties' outweigh the efficiency of having one appeal at the conclusion of the case in its entirety, and it must spell out its reasons for concluding...