IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

MONICA JOHNSON, )

 )

Plaintiff, )

)

v. ) CIVIL ACTION 13-0431-WS-M

 )

MOBILE INFIRMARY ASSOCIATION )

d/b/a MOBILE INFIRMARY MEDICAL )

CENTER, )

 )

Defendant. )

ORDER

This matter comes before the Court on “Plaintiff’s Motion Pursuant to Rule 59(e) to Alter 

or Amend the Order Granting Summary Judgment to the Defendant as to Plaintiff’s Count II” 

(doc. 70).1

On April 6, 2015, the undersigned entered an Order (doc. 65) that, inter alia, granted 

defendant’s Motion for Summary Judgment as to Count II. In that claim, plaintiff, Monica 

Johnson, alleged that Mobile Infirmary discriminated against her on the basis of her race (black) 

by imposing more stringent discipline on her for attendance violations than it did on white 

employees. To meet her burden (as part of her prima facie case) of showing a similarly situated 

comparator, Johnson identified a white employee named Jason Thompson. The April 6 Order 

determined that (i) no inference of disparate treatment arose as to the written warnings which 

Johnson received on December 26, 2012 and Thompson received on January 3, 2013, from the 

same supervisor for similar violations of Mobile Infirmary policy; and (ii) Thompson was not 

similarly situated to Johnson with respect to post-January 3 discipline because, unlike 

 1 This Motion was filed in the wee hours of April 14, 2015, some 34 minutes after a 

previous iteration of plaintiff’s Motion (doc. 69), styled exactly the same way. It appears that the 

subsequent version was intended to correct formatting (and perhaps other) defects in the initial 

version. Under the circumstances, plaintiff’s corrected Motion supersedes her earlier filing, so 

plaintiff’s first-filed Motion Pursuant to Rule 59(e) to Alter or Amend (doc. 69) is moot.

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Thompson, Johnson incurred a cluster of six additional violations of the policy within 16 days 

after she received a written warning, whereas Thompson showed short-term improvement for 

months after his warning. Johnson seeks reconsideration of both of these aspects of the April 6 

Order pursuant to Rule 59(e), Fed.R.Civ.P.

As a matter of well-settled law, “[t]he only grounds for granting a Rule 59 motion are 

newly-discovered evidence or manifest errors of law or fact.” United States v. Marion, 562 F.3d 

1330, 1335 (11th Cir. 2009) (citation and internal marks omitted); see also Arthur v. King, 500 

F.3d 1335, 1343 (11th Cir. 2007) (similar). Authority is legion for the proposition that motions to 

reconsider “may not be used to relitigate old matters, or to raise arguments or present evidence 

that could have been raised prior to the entry of judgment.” Exxon Shipping Co. v. Baker, 554 

U.S. 471, 485 n.5, 128 S.Ct. 2605, 171 L.Ed.2d 570 (2008) (citation omitted).

2

 Rule 59(e) 

motions do not afford an unsuccessful litigant “two bites at the apple.” American Home Assur. 

Co. v. Glenn Estess & Associates, Inc., 763 F.2d 1237, 1239 (11th Cir. 1985). Nor are such 

motions properly filed “as a kneejerk reaction by a dissatisfied federal court loser.” Lee v. 

Thomas, 2012 WL 3137901, *2 (S.D. Ala. Aug. 1, 2012).3 “They are neither appeal substitutes 

 2 See also Smith v. Ocwen Financial, 2012 WL 3758378, *2 (11th Cir. Aug. 30, 

2012) (“A motion for reconsideration cannot be used to relitigate old matters, raise arguments, or 

present evidence that could have been raised prior to the entry of judgment.”) (citation omitted); 

Richardson v. Johnson, 598 F.3d 734, 740 (11th Cir. 2010) (similar); Kight v. IPD Printing & 

Distributing, Inc., 2011 WL 2015055, *1 (11th Cir. May 24, 2011) (motion for reconsideration 

properly denied where movant “merely attempted to relitigate old matters and presented 

evidence that could have been raised prior to the entry of judgment”); Morton v. Astrue, 2010 

WL 2130613, *3 (11th Cir. May 27, 2010) (“In his motion to alter or amend judgment, ... 

Morton merely attempted to reargue factual issues previously decided by the district court. The 

district court therefore did not abuse its discretion in denying the motion.”); Dyas v. City of 

Fairhope, 2009 WL 5062367, *3 (S.D. Ala. Dec. 23, 2009) (“Motions to reconsider ... do not 

exist to permit losing parties to prop up arguments previously made or to inject new ones, nor to 

provide evidence or authority previously omitted. They do not, in short, serve to relieve a party 

of the consequences of its original, limited presentation.”).

3 See also Hughes v. Stryker Sales Corp., 2010 WL 2608957, *2 (S.D. Ala. June 

28, 2010) (rejecting notion that motions to reconsider “are appropriate whenever the losing party 

thinks the District Court got it wrong,” but finding that they are “an extraordinary remedy” that

must be “employed sparingly”) (citations omitted); Garrett v. Stanton, 2010 WL 320492, *3 

(S.D. Ala. Jan. 18, 2010) (“Far too often, litigants operate under the flawed assumption that any 

adverse ruling on a dispositive motion confers upon them license ... to relitigate issues that have 

(Continued)

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nor a ‘dry run’ to test arguments in anticipation of a forthcoming appeal.” Id. Johnson’s Motion 

posits that the April 6 Order suffers from “manifest errors of law or fact,” such that Rule 59(e) 

reconsideration is appropriate. The undersigned disagrees.

With regard to the late December / early January written warnings issued to both Johnson 

and Thompson by their supervisor, Stefanie Willis-Turner, plaintiff now insists that “WillisTurner had not treated Johnson and Thompson the same way at all.” (Doc. 70, at 2.)4

 The 

threshold problem is that the Court has already considered in detail and rejected plaintiff’s 

argument that those written warnings reflected disparate treatment (see doc. 65, at 18 fn. 19); 

therefore, plaintiff’s rehash of arguments that have already been considered and rejected is not a 

proper basis for a motion to reconsider.

Even if Johnson’s Motion were properly raised on this point, it would nonetheless be 

meritless. The uncontroverted facts are that, as of late December 2012, Johnson had five 

“occurrences” of time and attendance violations, plus two previous oral warnings from 2009 and 

2011 for violation of the same policy.5 At that time, Thompson had seven “occurrences” of time 

and attendance violations, plus one written warning from August 2012. Plaintiff has not shown 

 

already been decided, to champion new arguments that could have been made before, and 

otherwise to attempt a ‘do-over’ to erase a disappointing outcome. This is improper.”).

4 Curiously, plaintiff also states the following in her Motion to Reconsider: “But 

yet, no discipline for Jason Thompson on January 3, 2013.” (Doc. 70, at 3.) This statement is 

patently incorrect. Indeed, plaintiff’s own exhibits show that Thompson received a written 

warning on January 3, 2013 for time and attendance violations. (Doc. 70, Exh. B.) It cannot 

reasonably be argued that a written warning is not discipline; therefore, plaintiff’s assertion is 

difficult to fathom.

5 In the Motion to Reconsider, plaintiff takes Mobile Infirmary to task for listing 

Johnson’s prior oral warnings in her December 2012 Corrective Action Report. (Doc. 70, at 4.) 

However, she points to nothing in Mobile Infirmary’s policies or practices that would forbid 

defendant from considering her history of time and attendance violations in imposing discipline, 

whether or not that disciplinary history constituted an “occurrence” for purposes of counting 

violations of the time and attendance policy. In fact, defendant’s written policies expressly allow 

Mobile Infirmary to take into account patterns of absenteeism or tardiness. See footnote 6, infra. 

In short, nothing about the recitation of those two oral warnings in Johnson’s December 2012 

written warning raises a colorable inference of racially discriminatory animus by the disciplining 

supervisor.

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that it was violative of defendant’s policies, or otherwise indicative of racially disparate 

treatment, for Mobile Infirmary to discipline Johnson and Thompson the same way at that time 

based on those similar (albeit not identical) attendance records. Plaintiff maintains that Mobile 

Infirmary’s “Absence, Tardiness and Time Keeping Policy” (the “Policy”) (doc. 57, Exh. C) 

provided that Thompson must be suspended, rather than simply being given another warning. 

(Doc. 70, at 3.) However, she points to no language in the Policy that requires such an outcome, 

and the Court has found none. The Court cannot simply assume, as Johnson does, that more 

stringent disciplinary action was mandatory for Thompson under these circumstances.6 Even if it 

were, the fact remains that Thompson and Johnson received exactly the same discipline from 

Mobile Infirmary in December 2012 / early January 2013. Plaintiff’s subjective belief that

Mobile Infirmary should have taken more severe disciplinary action against Thompson in no 

way raises an inference of race discrimination where, again, both the white employee and the 

black employee received written warnings within eight days of each of other for similar 

violations of the Policy. That plaintiff thinks her conduct (five occurrences plus two oral 

warnings) was less egregious than Thompson’s (seven occurrences plus one written warning 

from August 2012) does not make it so, and neither this Court nor a reasonable factfinder at trial 

could second-guess Mobile Infirmary’s reasonable human resources decision to treat them the 

same.

Equally unavailing is the Rule 59(e) Motion’s attack on the April 6 Order’s conclusion 

that Johnson was not similarly situated to Thompson because, unlike Thompson, Johnson 

incurred many more “occurrences” in the days following her December 2012 written warning. 

Plaintiff’s primary argument here is that most of the January 2013 occurrences should not count 

because they should have been deemed FMLA-qualified leave, such that they “are no longer 

valid violations at this summary judgment stage” (doc. 70, at 4). Thus, plaintiff reasons, 

Johnson’s attendance record was far less serious than Thompson’s, yet she was suspended while 

Thompson was not. This convoluted theory improperly conflates plaintiff’s FMLA cause of 

action at Count III (which survived summary judgment) with her Title VII / Section 1981 race 

 6 Again, the Court previously addressed this point in the April 6 Order, observing 

that plaintiff has made no attempt to account for Mobile Infirmary’s policy statement that 

“[p]atterns of absenteeism or tardiness will be addressed through the guidelines of the 

Performance and Corrective Action policy.” (Doc. 57, Exh. C at 3.)

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discrimination claim at Count II (which did not). To be sure, if plaintiff is correct that her 

January occurrences were FMLA-protected, then such absences, tardies and early departures 

could not be used against her for disciplinary purposes, and her mid-January suspension for those 

occurrences would be unlawful. That’s Count III – the FMLA claim – which is going to trial. 

However, plaintiff cannot logically (much less legally) piggyback a race discrimination claim on 

this alleged FMLA violation. If Mobile Infirmary improperly classified her FMLA-protected

absences as violations of the Policy, that fact would in no way raise an inference of racially 

disparate treatment, absent evidence that it classified the absences of similarly situated white 

employees differently. Again, plaintiff has made no such showing. The point is simple: If 

Mobile Infirmary incorrectly failed to treat Johnson’s January 2013 absences as FMLAprotected, then Johnson will prevail on her FMLA claim at trial. But such an error / omission on 

Mobile Infirmary’s part could not be used to bootstrap a race discrimination claim, where there is 

not a scrap of evidence of racially discriminatory practices by Mobile Infirmary in classifying

absences as FMLA-protected or not.

There is a broader point to be made here, as well. Recall that in the “violation of work 

rules” context, a co-worker is not similarly situated for purposes of comparison unless his or her 

misconduct is nearly identical to that of the plaintiff. See, e.g., Wilson v. B/E Aerospace, Inc., 

376 F.3d 1079, 1091 (11th Cir. 2004) (stating that a comparator must be “nearly identical to the 

plaintiff to prevent courts from second-guessing a reasonable decision by the employer”); 

Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999) (“We require that the quantity and 

quality of the comparator’s misconduct be nearly identical to prevent courts from secondguessing employers’ reasonable decisions and confusing apples with oranges.”). Where the 

alleged comparator is not similarly situated to the plaintiff in all relevant respects, “the different 

application of workplace rules does not constitute illegal discrimination.” Smith v. LockheedMartin Corp., 644 F.3d 1321, 1326 n.17 (11th Cir. 2011) (citation omitted). The April 6 Order 

found that Thompson’s misconduct was not nearly identical to Johnson’s. Plaintiff does not 

argue otherwise, but instead suggests based on her own subjective interpretation that Mobile 

Infirmary should have equated Thompson’s attendance record with Johnson’s (even though they 

were different) and suspended him too. This is exactly the kind of post hoc second-guessing that 

the “nearly identical” rule was designed to prevent. It was entirely reasonable of Mobile 

Infirmary to suspend Johnson (but not Thompson) for two shifts when Johnson experienced a 

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cluster of additional Policy violations within days after being issued a written warning, while 

Thompson did not. No inference of race discrimination arises from these facts.

In short, the Court finds that the April 6 Order is not plagued by a “misapprehension of 

the facts,” “clear error” or “manifest injustice,” and that plaintiff’s arguments to the contrary are 

not persuasive. The Motion Pursuant to Rule 59(e) to Alter or Amend the Order Granting 

Summary Judgment (doc. 70) is denied.

DONE and ORDERED this 16th day of April, 2015.

s/ WILLIAM H. STEELE 

CHIEF UNITED STATES DISTRICT JUDGE

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