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Barraza v. Magna International Inc.

United States District Court, W.D. Missouri, Western Division

December 15, 2017

JOSE BARRAZA, Plaintiff,
v.
MAGNA INTERNATIONAL INC., Defendant.

          ORDER

          FERNANDO J. GAITAN, JR. UNITED STATES DISTRICT JUDGE.

         Currently pending before the Court is plaintiff's Motion for Reconsideration (Doc. # 22), plaintiff's Motion to Appoint Counsel (Doc. # 23), plaintiff's Motion for Recusal (Doc. # 26) and Plaintiff's Motion for Declaratory Judgment (Doc. # 29).

         I. BACKGROUND

         Plaintiff filed a Motion for Leave to Proceed in Forma Pauperis on July 25, 2016. The Court granted plaintiff's Motion on October 19, 2016 and plaintiff's Complaint against Magna International, Inc. was filed the same day. In his Complaint, plaintiff marked that his lawsuit was based on Title VII, the Americans with Disabilities Act and a “belief that of which is transgenderism, retaliation.” Plaintiff indicated that the conduct in the lawsuit involved termination of his employment, failure to accommodate his disability, terms and conditions of his employment were different from similar employees, retaliation and harassment. Plaintiff also stated that he was constructively terminated in fear of harassment, repetition. In response to the question in the Employment Discrimination Complaint form which asked him to explain why he believes he was terminated, plaintiff checked the boxes for: religion, gender, disability and other - belief that of which is transgenderism. Defendant moved pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss plaintiff's Complaint as untimely filed and because he failed to exhaust his administrative remedies. After reviewing the charge of discrimination, the notice of right to sue letters from the EEOC and the Missouri Commission on Human Rights and plaintiff's Complaint, the Court found that plaintiff's Complaint was untimely filed. The Court also found that plaintiff failed to exhaust his administrative remedies regarding his ADA or his retaliation claims. The Court granted defendant's Motion to Dismiss and dismissed plaintiff's Complaint on June 30, 2017. Plaintiff then filed the Motion for Reconsideration, Motion for Appointment of Counsel, Motion for Recusal and Motion for Declaratory Judgment.

         II. STANDARD

         “The Federal Rules of Civil Procedure do not include a ‘motion to reconsider.'” Keys v. Wyeth, Inc., No. C08-1023, 2009 WL 1010064 at *1 (N.D.Iowa Apr. 14, 2009). In Fesenmeyer v. City of Kansas City, Missouri, No. 15-00850-CV-W-DGK, 2016 WL 3920450 (W.D.Mo. July 15, 2016), the Court stated:

Rule 60(b) applies to final judgments or orders and may be used to reconsider a final order on certain enumerated grounds such as excusable neglect, fraud, newly discovered evidence, or any other reason that justifies relief. Fed.R.Civ.P. 60(b) . . .A party moving for reconsideration pursuant to any portion of Rule 60(b) must establish exceptional circumstances to obtain the extraordinary relief the rule provides. . . .A district court has wide discretion in deciding whether to grant a Rule 60(b) motion, but the Eighth Circuit has cautioned that exceptional circumstances are not present every time a party is subject to potentially unfavorable consequences as a result of an adverse judgment properly arrived at.

Id. at *1 (internal citations and quotations omitted).

         III. DISCUSSION

         A. Motion for Reconsideration

         In his Motion for Reconsideration, plaintiff states that he seeks to have his case reopened due to misleading and false and inaccurate allegations and failure to review preserved data. Plaintiff states that defendants stated that he only marked the box for race discrimination, which is false. He also states that the defendants stated that he checked the boxes for religion, gender, disability and other - belief that of which is transgenderism. Plaintiff then also states that with regard to his pleadings being untimely, he received a dual filed notice of right to sue from the EEOC dated April 25, 2016 and he filed his Compliant at the United States District Court on July 25, 2016, but had it notarized on July 22, 2016.

         It would appear that plaintiff is attempting to proceed pursuant to Fed.R.Civ.P. 60(b)(1) which allows relief from an order due to (1) mistake, inadvertence, surprise or excusable neglect. However, after reviewing the Order dismissing plaintiff's Complaint, there were no mistakes which would warrant relief from the Order. Plaintiff argues first that the defendants stated that he only check marked the box for race discrimination and that this “is false, not true and will not be found as evidence.” However, the Court found in the June 30, 2017 Order that plaintiff check marked the boxes for religion, gender, disability and other - belief that of which is transgenderism. (June 30, 2017 Order, p. 3). Plaintiff then argues that the defendants said that he check marked the boxes for religion, gender, disability and transgenderism, but “these accusations will not be found.” However, as noted above, those were the boxes which plaintiff check - marked on his form.

         Plaintiff also argues that his Complaint was timely filed because he received his Notice of Right to Sue from the EEOC on April 25, 2016 and he filed his Complaint with this Court on July 25, 2016 and the Complaint was notarized on July 22, 2016. However, as the Court explained in the June 30, 2017 Order, plaintiff received a Notice of Right to Sue letter from the EEOC on April 15, 2016 (Doc. 10-2). Plaintiff received his Missouri Commission on Human Rights Notice of Right to Sue letter ten days later on April 25, 2016 (Doc. 5-2). The Court noted that the law presumes that a letter is received three days after it is mailed. Thus, plaintiff was presumed to have received the EEOC's letter by April 18, 2016 and was required to file his Complaint in federal Court within ninety days or by Monday July 18, 2016. However, plaintiff did not file his Complaint with this Court until July 25, 2016, which was seven days later.

         Ousley v. Rescare Homecare, No. 4:13-CV-00898-SPM, 2013 WL 5966050 (E.D.Mo. Nov. 8, 2013), is a case with a similar timeline to the instant action. The plaintiff in that case also received her Missouri Commission on Human Rights Notice of Right to Sue letter after she had received her EEOC Notice of Right to Sue. Plaintiff filed her complaint in federal court within ninety days of receiving the MCHR Notice, but it was 104 days after she received her EEOC charge. The Court in that case found that despite plaintiff's mistaken belief as to when the deadline was for filing her federal claims, the notice from the EEOC clearly provided plaintiff with notice of the deadline for asserting her federal claims. Because plaintiff's ...


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