United States District Court, W.D. Wisconsin
OPINION AND ORDER
WILLIAM M. CONLEY U.S. DISTRICT COURT JUDGE
civil action, plaintiff Sharif Hamzah asserted employment
discrimination and retaliation claims under Title VII and the
ADEA against defendant Woodman's Food Market, Inc.
("Woodman's"). The court granted summary
judgment to defendant on all but one claim of plaintiff, that
he was unlawfully terminated under Title VII on the basis of
his race, color or ethnicity. Now before the court are
defendant's motion for reconsideration (dkt. #63), as
well as plaintiff's motion for leave to amend his
complaint (dkt. #69). For the reasons explained below, the
court will deny both motions.
Sharif Hamzah, a Native/African American, was hired as a
utility clerk by Woodman's West on September 2, 2008.
Hamzah was ultimately supervised by Dale Martinson, who as
the store manager was authorized to hire, fire, discipline
and promote employees.
employee handbook in effect during Hamzah's employment at
Woodman's West explicitly set forth two categories of
disciplinary violations. The first category, "Group
1" violations, includes insubordination to a supervisor
and provides cause for immediate dismissal. The second,
"Group 2" violations, are less serious and do not
provide cause for termination unless an employee receives
more than five during a twelve-month period. In addition to
those two formal categories, the handbook also provides:
No list of rules and regulations can cover every possible
standard of behavior. You are expected to conduct yourself in
a manner suitable for the safe and efficient operation of the
store. The purpose of these rules and regulations is not to
restrict the rights of anyone, but to define them and ensure
cooperation. The following rules are by no means inclusive.
They do include many of the infractions considered most
serious. In addition, the company may impose disciplinary
action including demotion, suspension and/or discharge for
acts not listed in the work rules or in cases where the
supervisor feels it is in the best interest of the company to
demote, layoff or terminate the individual from the
(Decl. of Kristin Popp Ex. A (dkt. 38-1) at 7.)
December of 2008 and April of 2011, Hamzah received written
notices for five Group 2 violations. He also received three
notices for Group 1 violations, the last of which was issued
on July 28, 2011. Martinson fired Hamzah that same day,
basing his decision on the three Group 1 notices.
three of these Group 1 violations were for insubordination,
and all three were based on allegations made by his immediate
supervisors Jacob Bemis or Gabriel Oruruo. The record on
summary judgment does not disclose what lengths, if any,
Martinson took to investigate independently whether the Group
1 notices were justified apart from Bemis's or
Oruruo's allegations. Hamzah asserts that Bemis and
Oruruo lied about all of the incidents underlying the three
Group 1 notices. On the day he was fired, Hamzah further
alleges that Bemis remarked, "blacks don't work with
whites while [I'm] on duty, because you don't belong
with us, " and that Oruruo said, "told you, you
don't belong to the right ethnic group."
court granted summary judgment to defendant on
plaintiff's hostile work environment and retaliation
claims but denied summary judgment to defendant on his claim
for unlawful termination on the basis of race, color or
ethnicity under Title VII. Specifically, the court denied
summary judgment to defendant on plaintiff's unlawful
termination claims because there remained "genuine
issues or material fact as to whether Bemis and Oruruo had a
discriminatory animus and supplied the basis for
Martinson's decision to terminate Hamzah's
employment." (Opinion & Order (dkt. #61) at 14.) If so,
defendant could be held liable under Title VII based on the
"cat's paw" theory of liability. See Dey v.
Colt Constr. & Dev. Co., 28 F.3d 1446, 1459 (7th Cir.
1994) ("Summary judgment generally is improper where the
plaintiff can show that an employee with discriminatory
animus provided factual information or other input that may
have affected the adverse employment action.").
Defendant's Motion for Reconsideration
54(b) motions for reconsideration are largely evaluated under
the same standard as motions to alter or amend a judgment
under Rule 59(e). Woods v. Resnick, 725 F.Supp.2d
809, 827-28 (W.D. Wis. 2010) (citing Rothwell Cotton Co.
v. Rosenthal & Co., 827 F.2d 246, 251 (7th Cir. 1987)).
To prevail on a motion to alter or amend under Rule 59(e),
the movant must present newly discovered evidence or
establish a "manifest error of law or fact."
Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th
Cir. 2000). "A ‘manifest error' is not
demonstrated by the disappointment of the losing party. It is
the ‘wholesale disregard, misapplication, or failure to
recognize controlling precedent.'" Id.
(quoting Sedrak v. Callahan, 987 F.Supp. 1063, 1069
(N.D. Ill. 1997)). Nor is reconsideration "an
appropriate forum for rehashing previously rejected arguments
or arguing matters that could have been heard during the
pendency of the previous motion." Caisse Nationale
de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264,
1270 (7th Cir. 1996). Finally, disposition of a motion for
reconsideration is entrusted to the district court's
discretion. Id. (citing Billups v. Methodist
Hosp., 922 F.3d 1300, 1305 (7th Cir. 1991)).
contends that the court committed error by crediting
Hamzah's assertions regarding discriminatory statements
allegedly made by Bemis and Oruruo on the day of his firing,
since Hamzah only supported those assertions by citing to his
unverified complaint, something the court already addressed
in its opinion and order on summary judgment. (Opinion &
Order (dkt. #61) at 7 n.4.) As the court explained,
Hamzah's assertions were sufficient to create a
dispute of material fact since: (1) Hamzah was acting pro
se at summary judgment; (2) Hamzah could testify to