Canada v. Sender Incorporated ( 2023 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Dymond Canada, ) No. CV-21-02218-PHX-SPL ) 9 ) 10 Plaintiff, ) ORDER vs. ) ) 11 ) Sender Incorporated, ) 12 ) 13 Defendant. ) ) 14 ) 15 Before the Court is Defendant’s Motion for Reconsideration (Doc. 88), in which it 16 seeks reconsideration of the Court’s July 24, 2023 Order denying Defendant’s Motion for 17 Summary Judgment (Doc. 86). In that Order, the Court denied summary judgment on the 18 Title VII retaliation claim, finding disputed issues of material facts regarding whether 19 Defendant subjected Plaintiff to an adverse employment action. (Doc. 86 at 6). The Court 20 found that although some evidence supported Defendant’s argument that Plaintiff 21 resigned before she was terminated, other evidence supported Plaintiff’s argument that 22 her statements were not a resignation. (Doc. 86 at 5–6). 23 Reconsideration is disfavored and “appropriate only in rare circumstances.” Defs. 24 of Wildlife v. Browner, 909 F. Supp. 1342, 1351 (D. Ariz. 1995). Motions for 25 reconsideration are “not the place for parties to make new arguments not raised in their 26 original briefs,” nor should such motions “be used to ask the Court to rethink what it has 27 already thought.” Motorola, Inc. v. J.B. Rodgers Mech. Contractors, 215 F.R.D. 581, 582 28 (D. Ariz. 2003); see also LRCiv 7.2(g)(1) (“The Court will ordinarily deny a motion for 1 reconsideration of an Order absent a showing of manifest error or a showing of new facts 2 or legal authority that could not have been brought to its attention earlier with reasonable 3 diligence.”). A motion for reconsideration may be brought based on “matters that the 4 movant believes were overlooked or misapprehended by the Court.” Id. 5 Defendant asserts that the Court did not consider three pieces of evidence and 6 relied on an improper legal argument in denying Defendant’s Motion for Summary 7 Judgment. The Court did consider that evidence and did not rely on that argument, so the 8 Motion for Reconsideration will be denied. Still, the Court acknowledges that it did not 9 explicitly address the evidence and argument raised by Defendant’s Motion for 10 Reconsideration in the July 24, 2023 Order, so it will take the opportunity to do so now. 11 First, the three pieces of evidence—the December 23, 2020 audio recording, 12 David Ramos’s Declaration, and Mr. Ramos’s email to Laurie Volk—may bolster 13 Defendant’s argument that Plaintiff resigned prior to her termination, but they do not 14 establish as much as a matter of law. Initially, Plaintiff disputes that she sent Mr. Ramos 15 the alleged December 23, 2020 text message described in his Declaration and copied into 16 his email to Ms. Volk. (Doc. 84 at 4 ¶ 42). But even if the Court were to consider it 17 undisputed that she sent the text message (see Doc. 84 at 4 ¶ 41), Plaintiff merely said 18 that she and her friend, Donae Douglas, “told [Defendant’s Human Resources employee 19 Catherine Osorio] yesterday we no longer wanted to work at the job because of the 20 situation that occurred.” (Doc. 70 ¶ 41). Plaintiff does not dispute saying as much to Ms. 21 Osorio, and the Court considered Plaintiff’s statements as evidence to support 22 Defendant’s resignation argument—while also explaining why a juror could reasonably 23 conclude that in context, Plaintiff’s statements were not a resignation. (Doc. 86 at 5–6). 24 The second part of Plaintiff’s alleged text message does not change the Court’s 25 conclusion, either. Plaintiff’s statement that “we didn’t show up today to work, we 26 showed up because [Ms. Osorio] asked us to explain to other managers,” does little to 27 support Defendant’s resignation argument given that the night before, Defendant had 28 already asked the staffing agency to end Plaintiff’s assignment at its warehouse. (Doc. 70 1 ¶¶ 29–30, 41). 2 In the December 23, 2020 audio recording, Plaintiff repeats many of the same 3 statements already discussed above and in the July 24, 2023 Order—that she told Ms. 4 Osorio that she “no longer wanted the job,” that she did not “care about the job,” and that 5 she did not “want to work” for Defendant. (Doc. 70 ¶¶ 38–39). The only other statement 6 from the recording that Defendant cites—that Plaintiff had “signed [herself] out of the 7 job” on December 22, 2020—does not show that Plaintiff resigned, as Ms. Osorio told 8 Plaintiff to go home at the end of their conversation. (Doc. 70 ¶¶ 27, 38). Accordingly, 9 the three pieces of evidence do not show that the Court’s Order denying summary 10 judgment was erroneous. 11 Second, Defendant’s Motion for Reconsideration argues that the Court improperly 12 relied on a constructive discharge theory—an argument raised by Plaintiff and objected to 13 by Defendant in the summary judgment briefing—in finding that there was some 14 evidence that Plaintiff did not resign. But the Court did not rely on a constructive 15 discharge theory, which includes as an element that the employee “actually resigned.” 16 Green v. Brennan, 578 U.S. 547, 555 (2016). Instead, the Court found that in the context 17 of the conversation between Plaintiff and Ms. Osorio, “[a] juror could reasonably infer 18 from Plaintiff’s statements that she was not resigning but merely requesting a change in 19 working conditions.” (Doc. 86 at 6 (emphasis added)). In response to Plaintiff’s 20 statements—which, again, the Court found were not necessarily a resignation—Ms. 21 Osorio told Plaintiff to go home and later told the staffing agency to end Plaintiff’s 22 assignment with Defendant, which a reasonable juror could therefore conclude was an 23 adverse employment action. 24 /// 25 /// 26 /// 27 /// 28 /// 1 IT IS THEREFORE ORDERED that Defendant’s Motion for Reconsideration 2| (Doc. 88) is denied. 3 Dated this 8th day of August, 2023. 4 6 United 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