Shinwari v. Raytheon Aircraft Co.

• Citation: 25 F.Supp.2d 1206
• Decision Date: 15 October 1998
• Docket Number: Civil Action No. 97-2617-KHV.
• Parties: Mohammad M. SHINWARI, Plaintiff, v. RAYTHEON AIRCRAFT COMPANY, Defendant.
• Court: U.S. District Court — District of Kansas

25 F.Supp.2d 1206

Mohammad M. SHINWARI, Plaintiff, v. RAYTHEON AIRCRAFT COMPANY, Defendant.

Civil Action No. 97-2617-KHV.

United States District Court, D. Kansas.

October 15, 1998.

Bobbie R. Bailey, Kansas City, MO, for Plaintiff.

Terry L. Mann, Martin, Pringle, Oliver, Wallace & Swartz, L.L.P., Wichita, KS, for Defendant.

Daniel J Sevart, Sevart & Sevart, Wichita, KS, pro se.

MEMORANDUM AND ORDER

VRATIL, District Judge.

Plaintiff, a former employee of Raytheon Aircraft Company ("Raytheon"), brought suit under Section 1981, Title VII, the ADEA, and state common law, alleging employment discrimination, retaliation, and breach of contract. On July 23, 1998, the Court sustained defendant's motions for summary judgment and partial dismissal. See Shinwari v. Raytheon Aircraft Co., 16 F.Supp.2d 1308, 1998 WL 596343 (D.Kan. 1998). The matter now comes before the Court on Plaintiff's Rule 59(e) Motion To Reconsider And Thereby Alter, Amend And Vacate The Order Of Summary Judgment Entered July 24, 1998 (Doc. # 90) filed August 7, 1998. Plaintiff contends that reconsideration is necessary to correct the Court's misapprehension of the law and the relevant facts. For reasons set forth below, the motion is overruled.

Legal Standards

The Court has discretion whether to grant or deny a motion for reconsideration.¹ Hancock v. City of Oklahoma City, 857 F.2d 1394, 1395 (10th Cir.1988); Torre v. Federated Mut. Ins. Co., 906 F.Supp. 616, 617-18 (D.Kan.1995). The Court may recognize any one of three grounds justifying reconsideration: an intervening change in controlling law, availability of new evidence, or the need to correct clear error or prevent manifest injustice. Martin v. MAPCO Ammonia Pipeline, Inc., 866 F.Supp. 1304, 1308 (D.Kan.1994); Marx v. Schnuck Mkts., Inc., 869 F.Supp. 895, 897 (D.Kan.1994). See also Anderson v. United Auto Workers, 738 F.Supp. 441, 442 (D.Kan.1990)(motion to reconsider appropriate when court has obviously misapprehended party's position, facts, or applicable law, or when party introduces new evidence that could not have been obtained through exercise of due diligence).

A motion to reconsider is not a second chance for the losing party to make his strongest case or to dress up arguments that previously failed. Voelkel v. General Motors Corp., 846 F.Supp. 1482, 1483 (D.Kan.), aff'd, 43 F.3d 1484 (10th Cir.1994). Such motions are not appropriate if the movant only wants the Court to revisit issues already addressed or to hear new arguments or supporting facts that could have been presented originally. Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir.1991), cert. denied, 506 U.S. 828, 113 S.Ct. 89, 121 L.Ed.2d 51 (1992).

Factual Background

The Court's order of July 23, 1998, sets forth a chronology which traces the evolution of plaintiff's claims throughout the history of this dispute, as well as a detailed summary of the factual background. See Shinwari, 16 F.Supp.2d 1308, 1311-19. In the analysis below, we address only those factual and legal issues which are relevant to plaintiff's motion for reconsideration.

Analysis

I. Did The Court Improperly Dismiss Plaintiff's Retaliation Claim Under Section 1981?

Upon examination of the Pretrial Order in this case, the Court determined that plaintiff had abandoned any claim of retaliation based on protected opposition to discrimination on account of color, under 42 U.S.C. § 1981. Plaintiff challenges the "dismissal" of this claim, arguing that the factual record does not support the Court's "claim" that he opposed discrimination on the basis of age and national origin but not on the basis of color.² Counts II and III of the complaint, he contends, clearly allege discrimination based on race and color.

On April 20, 1998, the Court held a pretrial conference which allowed plaintiff to clarify his claims. Plaintiff's claims are now memorialized in the Pretrial Order (Doc. # 58) filed April 21, 1998. The Pretrial Order clearly states that "this Pretrial Order shall supersede pleadings and control the future course of the action unless modified to prevent injustice." Id. at 24. See also D. Kan. Rule 16.2(c) (pretrial order, when approved by the court and filed with clerk, controls subsequent course of action unless modified by consent of parties and court); Hernandez v. Alexander, 671 F.2d 402, 407 (10th Cir.1982)(pretrial order supersedes pleadings and becomes governing pattern of suit). Because the Pretrial Order supersedes the complaint, plaintiff's citations to the latter are unavailing.

Plaintiff further argues that the Pretrial Order "reiterates" his claim that defendant subjected him to discrimination in violation of Section 1981, in that it sets forth the elements of a cause of action for discrimination ___ the third element of which requires plaintiff to show that "the adverse employment action he suffered was `motivated by his national origin and color.'" Memorandum In Support Of Plaintiff's Rule 59(e) Motion To Reconsider, p.2 (emphasis in original) ("Motion To Reconsider").³ Merely identifying the elements of a cause of action for discrimination, one of which refers to "national origin or color," is not enough; at a minimum, plaintiff must also identify how his color in fact motivated Raytheon. See, e.g., Celotex, 477 U.S. at 322, 106 S.Ct. 2548 (under Rule 56 movant entitled to judgment as a matter of law should nonmoving party insufficiently establish an essential element of a claim for which nonmovant has the burden); Enfinger v. Wolf Creek Nuclear Operating Corp., No. 95-4071, 1995 WL 783211, at *3 (D.Kan. Oct.27, 1995)(plaintiff's complaint must set forth factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory) (citation omitted). Plaintiff did not do so. In the portions of the Pretrial Order which immediately follow, plaintiff makes no reference to color or race. Instead, he merely states that "plaintiff is a member of a protected group: His Nation of origin is Pakistan ___ he is not a native-born American citizen." Pretrial Order, p.10. Because the Pretrial Order contains no allegations that Raytheon subjected plaintiff to discrimination (or retaliation) on the basis of his race or color, "dismissal" of his Section 1981 retaliation claim was appropriate.

Plaintiff apparently argues that national origin, race and color are interchangeable and that his claim based on national origin is therefore also by definition a claim based on race or color. In support, plaintiff cites Daemi v. Church's Fried Chicken, Inc., 931 F.2d 1379 (10thCir.1991) where the Tenth Circuit said:

[A]ctually § 1981 does not outlaw national origin discrimination per se, only discrimination on the basis of race. St. Francis College v. Al-Khazraji, [481 U.S. 604, 613, 107 S.Ct. 2022 (1987)]; see M. Player, Employment Discrimination Law § 8.02 (1988). We are cognizant, however, that often the line between national origin discrimination claims under Title VII and racial discrimination claims under § 1981 is "not a bright one." St. Francis College, 481 U.S. at 614, 107 S.Ct. 2022 (Brennan, J., concurring). The concept of race under § 1981 is broad. It extends to matters of ancestry which are normally associated with nationality, not race in a biological sense. See Alizadeh v. Safeway Stores, Inc., 802 F.2d 111, 114-15 (5th Cir.1986) (noting that persons of Iranian descent are a protected race under § 1981, although anthropologists classify them as Caucasian); Manzanares v. Safeway Stores, Inc., 593 F.2d 968, 971 (10th Cir.1979) (noting that § 1981 is "no[t] necessarily limited to the technical or restrictive meaning of `race'") [citation omitted]. As the Supreme Court has noted, Congress intended § 1981 to "protect from discrimination identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics." St. Francis College, 481 U.S. at 613, 107 S.Ct. 2022 .... As a person of Iranian descent, Daemi was protected by § 1981's bar against discrimination on the ground of race. E.g., Alizadeh, 802 F.2d at 114-15. His pleadings indicate that he in fact sought § 1981 relief on this ground.

931 F.2d 1379, 1387, n. 7 (10th Cir.1991)(emphasis added). In this case plaintiff seeks Section 1981 relief solely on the basis of the place or nation of his origin, not on the basis of his race, ancestry, or ethnic characteristics. See, e.g., St. Francis College v. Al-Khazraji, 481 U.S. 604, 613, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987)(plaintiff must prove discrimination based on fact that he was born an Arab, "rather than solely on the place or nation of his origin, or his religion"); Aramburu v. Boeing Co., 112 F.3d 1398, n. 2 (10th Cir.1997)(discrimination claim based on Mexican-American ancestry fell within Section 1981's protection against racial discrimination; "Section 1981 does not protect individuals from discrimination based on national origin"). Throughout the Pretrial Order, plaintiff refers only to national origin and age; nowhere does he contend that Raytheon retaliated against him as a result of protected opposition to discrimination based on color, race, ancestry, or ethnicity. Pretrial Order, pp.3-9 ("Plaintiff's Factual Contentions"), and 9-11 ("Plaintiff's Legal Contentions"). Instead he contends that Raytheon retaliated against him because he had complained about "unlawful discrimination," id. at 10-11, and that the complaint about unlawful discrimination involved age and national origin, id. at 5, 8, 10. Accordingly, the Court did not err in finding that plaintiff had either abandoned or failed to assert a retaliation claim under Section 1981 based on protected opposition to discrimination on account of color.

II. Did The Court Analyze Plaintiff's Title VII Retaliation Claim Under The Wrong Standard?

Plaintiff argues that the Court analyzed his Title VII retaliation claim under the...