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Teninty v. Geren

June 17, 2011


Name of Assigned Judge or Magistrate Judge Robert M. Dow, Jr. Sitting Judge if Other than Assigned Judge



For the reasons stated below, Plaintiff's motion for reconsideration, titled Plaintiff's Memorandum in Support of Her Motion for Relief of Judgment or Order [75], is respectfully denied.

O[ For further details see text below.] Docketing to mail notices. Notices mailed by Judicial staff.


I. Background

In February 2007, Defendants Secretary of the Army and United States Department of the Army (collectively referred to as "Defendant" or "the Army") hired Plaintiff Kelly Teninty, a white female, for a civilian position as a health technician at the Military Entrance Processing Station ("MEPS") in Chicago. Eight months later, she was terminated. Following her termination, Teninty sought EEO counseling and ultimately filed a formal complaint of discrimination, which was denied. After the denial of her EEO complaint, Teninty, acting pro se, filed two actions, which were subsequently consolidated before this Court. Plaintiff requested counsel, and on February 19, 2009, the Court granted her request for counsel and appointed a lawyer to represent her in this matter. Plaintiff's counsel filed an amended consolidated complaint, alleging employment discrimination based on gender, "wage scale differentials," and race; discrimination based on Plaintiff's disability in that Defendant failed to reasonably accommodate Plaintiff's alleged disability; and a hostile work environment created by African-American staff members. Plaintiff abandoned her age discrimination claim and limited her gender discrimination claim solely to the issue of disparate pay.

In addition to filing an amended employment discrimination complaint, Plaintiff's court-appointed counsel served and responded to written discovery, represented plaintiff in her deposition, and took a number of depositions of current and former Army employees. After discovery closed, the Army moved for summary judgment, and Teninty, through her counsel, filed a timely response two months later. On March 3, 2011, the Court granted summary judgment in favor of the Army on all of Teninty's discrimination and Equal Pay Act claims.

Teninty now seeks to vacate the judgment on the grounds that she was unable to assist in her case for the first few weeks before her summary judgment response was due because she was in a "day hospital" program from August 2010 until September 17, 2010, and because Teninty herself supposedly has "discovered" new evidence, much of which was produced by Defendant during fact discovery in 2009 but was not utilized by either party in briefing the summary judgment motion. She also has filed additional pleadings that largely rehash the arguments made by her, and rejected by the Court, on summary judgment.

II. Analysis

A court may alter or amend a judgment when the movant "clearly establish[es]" that "there is newly discovered evidence or there has been a manifest error of law or fact." Harrington v. City of Chicago, 433 F.3d 542, 546 (7th Cir. 2006). In regard to the "manifest error" prong, the Seventh Circuit has elaborated that a motion to reconsider is proper only when "the Court has patently misunderstood a party, or has made a decision outside the adversarial issues presented to the Court by the parties, or has made an error not of reasoning but of apprehension." Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990). While the Federal Rules of Civil Procedure allow a movant to bring to a court's attention a manifest error of law, it "does not provide a vehicle for a party to undo its own procedural failures, and it certainly does not allow a party to introduce new evidence or advance arguments that could and should have been presented to the district court prior to the judgment." Bordelon v. Chicago School Reform Bd. of Trustees, 233 F.3d 524, 529 (7th Cir. 2000). And because the standards for reconsideration are exacting, our court of appeals has stressed that issues appropriate for reconsideration "rarely arise and the motion to reconsider should be equally rare." Bank of Waunakee, 906 F.2d at 1191.

Teninty cites subsections (1) and (2) of Rule 60(b) as the bases for her motion. [FN 1] Rule 60(b)(1) allows relief from judgment mistake, inadvertence, or excusable neglect, while Rule 60(b)(2) allows relief when the party discovers new evidence that could not be discovered prior to judgment. Fed. R. Civ. P. 60(b)(1), (2); Bell v. Eastman Kodak Co., 214 F.3d 798, 800-01 (7th Cir. 2000). A generous reading of her motion suggests that Teninty is making two arguments that fit within these two subsections: (1) that summary judgment should be vacated because she (as opposed to her appointed counsel) has discovered "new evidence" that supports her claims; and (2) that summary judgment should be vacated because she was unable to assist her attorney for about six of the eight plus weeks during which the summary judgment motion was briefed. There is no dispute that Plaintiff was available and in fact did assist her attorneys during the discovery phase.

[FN 1] Teninty also cites Rule 60(b)(6), the catch-all provision, but fails to cite any reason that would justify relief and does not fit, at least ostensibly, within the first two subsections of Rule 60(b). See Brandon v. Chicago Bd. of Ed., 143 F.3d 293, 295 (7th Cir. 1998) ("Inherent in the structure of Rule 60(b) is the principle that the first three clauses and the catchall clause are mutually exclusive.") (citing Wesco Products Co. v. Alloy Automotive Co., 880 F.2d 981, 983 (7th Cir. 1989)). Thus, the Court disregards subsection (6) as a proper basis for Teninty's Rule 60(b) motion.

In addition to the Rule 60(b) motion, Teninty has filed an entirely new memorandum in opposition to the Army's summary judgment motion, a new response to the Army's Rule 56.1 statement of facts, and a additional statements of fact. Yet the time to file such pleadings has long since passed. Even under the more liberal Rule 59(e) standards, Teninty is not entitled to reargue her case. The proper avenue for an attack on the legal or factual bases which support the Court's judgment was an appeal, not a Rule 60(b) motion. See, e.g., Siner v. Eastside Comm. Investments, Inc., 22 Fed. Appx. 642, 642 (7th Cir. 2001) (rehashing arguments against summary judgment is not proper in a Rule 60(b) motion); Bell v. Eastman Kodak Co., 214 F.3d 798, 801 (7th Cir. 2000) ("A collateral attack on a final judgment is not a permissible substitute for appealing the judgment within the time * * * for appealing the judgment of a federal district court."). As the court explained in Bell v. Eastman Kodak Co., the grounds for setting aside a judgment under Rule 60(b) must be something that could not be ...

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