Patricia Wade v. Trustees of Indiana University

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 11, 2020*
Decided May 11, 2020
Before
DIANE P. WOOD, Chief Judge
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 19-2936
PATRICIA A. WADE, Appeal from the United States District
Plaintiff-Appellant, Court for the Southern District of Indiana,
Indianapolis Division.
v. No. 1:16-cv-002256-TWP-MJD
TRUSTEES OF INDIANA Tanya Walton Pratt,
UNIVERSITY, et al., Judge.
Defendants-Appellees.
ORDER
Patricia Wade appeals the denial of her postjudgment motion to reopen her suit
against her former employer for discrimination and denial of due process. We affirm.
Wade sued the Trustees of Indiana University, contending that the University
fired her because of her age, sex, and race, and in retaliation for complaining about age
discrimination. See 29 U.S.C. § 621 (Age Discrimination in Employment Act); 42 U.S.C.
* Defendants are not participating in this appeal. We have agreed to decide the
case without oral argument because the brief and record adequately present the facts
and legal arguments, and oral argument would not significantly aid the court. See FED.
R. APP. P. 34(a)(2)(C).
No. 19-2936 Page 2
§§ 1981 (Civil Rights Act of 1866), 1983 (Civil Rights Act of 1871), and 2000e-2 (Title VII).
She further asserted that the University violated her right to due process under the
Fourteenth Amendment by failing to follow its normal disciplinary procedures. The
district court entered summary judgment for defendants, concluding that Wade failed
to administratively exhaust her Title VII claims and that for the remaining claims,
defendants were immune from money damages under the Eleventh Amendment. (By
this reasoning, the court could have also entered judgment on Wade’s § 1983 claims on
the grounds that the state is not a “person” who can be sued under the statue. Will v.
Michigan Dep’t of State Police, 491 U.S. 58, 66–70 (1989)). The court continued that Wade’s
discrimination claims all failed because she lacked any evidence rebutting the
University’s explanation that it fired her for poor work performance, and her due
process claim failed because she lacked a protected property interest in her employment
at the University.
In lieu of an appeal, Wade, 31 days later, filed a postjudgment motion asking the
court to reopen the case and vacate judgment on her age-discrimination and retaliation
claims. She proffered a new theory for why defendants had waived sovereign
immunity, asserted that defendants had perjured themselves during discovery, and
repeated arguments that she had previously made in opposition to defendants’ motion
for summary judgment. The court denied the motion, explaining that it was too late for
Wade to raise new legal theories, that there was no evidence of perjury, and that she
had not pointed to any error of law or fact in the court’s prior order.
Wade then appealed, but her notice of appeal was not timely as to the district
court’s entry of judgment, so we limited her appeal to only the order denying her
postjudgment motion. See FED. R. APP. P. 4(a)(1). Because she filed her motion beyond
the 28 days provided by Rule 59(e), we explained that the motion would be treated as
one under Rule 60(b) for relief from judgment. See Williams v. Illinois, 737 F.3d 473, 475
(7th Cir. 2013). The practical effect is that Wade now faces an uphill battle: Relief is
available under Rule 60(b) only when the moving party shows grounds such as fraud or
misconduct by the opposing party, or some other exceptional circumstance that justifies
this extraordinary remedy. FED. R. CIV. P. 60(b). Accordingly, we give district courts
“great latitude” in denying Rule 60(b) motions. Banks v. Chicago Bd. of Educ., 750 F.3d
663, 667 (7th Cir. 2014) (quoting Bakery Machinery & Fabrication, Inc. v. Traditional Baking,
Inc., 570 F.3d 845, 848 (7th Cir. 2009)).
Wade now contends that her motion fell under either Rule 60(b)(3)’s provision
allowing relief for fraud or misconduct or Rule 60(b)(6)’s catch-all provision covering
No. 19-2936 Page 3
“any other reason that justifies relief.” In her view, defendants committed fraud when
they submitted falsified affidavits disparaging her work performance. She maintains
that the district court wrongly credited those affidavits over her own evidence, which
she believes sufficed to create material issues of fact.
None of Wade’s contentions persuades us that the district court abused its
discretion in denying her motion. Wade offers no evidence of fraud, much less the clear
and convincing evidence that Rule 60(b)(3) requires. See Wickens v. Shell Oil Co., 620
F.3d 747, 759 (7th Cir. 2010). And an argument that the court misinterpreted the
evidence cannot be “shoe-horned” into grounds for relief under Rule 60(b). Kennedy v.
Schneider Elec., 893 F.3d 414, 420 (7th Cir. 2018) (quoting Cash v. Illinois Div. of Mental
Health, 209 F.3d 695, 698 (7th Cir. 2000)). Had she timely appealed the underlying
judgment, she could have challenged the district court’s handling of the affidavits. But
she may not use Rule 60(b) as a substitute for a direct appeal. See Banks, 750 F.3d at 667
(collecting cases).
AFFIRMED