J. RANDAL HALL, District Judge.
Presently pending before the Court is Defendant's motion for reconsideration of this Court's partial denial of Defendant's motion for summary judgment.
Pursuant to Federal Rule of Civil Procedure 59(e), a party may seek to alter or amend a judgment in a civil case within twenty-eight days after the entry of the judgment. "[R]econsideration of a previous order is *an extraordinary remedy, to be employed sparingly.'"
Although Rule 59(e) does not set forth the grounds for relief, district courts in this Circuit have identified three that merit reconsideration of an order: (1) an intervening change in controlling law; (2) the availability of new evidence; and (3) the need to correct clear error or prevent manifest injustice.
"Motions for reconsideration should not be used to raise legal arguments which could and should have been made before the judgment was issued."
Where, as here, the motion for reconsideration is untimely,
Fed. R. Civ. P. 60 (b);
Even characterized as one under Rule 60, Defendant's motion for reconsideration fails on the merits as it does not meet the standards of that rule. Defendant bases his motion on three arguments: (1) Plaintiffs cannot prove a prima facie case of age discrimination without relying on hearsay; (2) Plaintiffs cannot prove the legitimate, non-discriminatory reason was pretextual; and (3) Dyals' FLSA claim is subject to the law enforcement exemption. In support of his motion, Defendant does not present any newly discovered evidence that, with reasonable diligence, could not have been discovered in time for the motion for summary judgment. Indeed, the only additional evidence he presents is his own affidavit and that of Michael Fender, who was deposed on August 2, 2013. Thus, as Defendant recognizes in his reply, he must rely on Rule 60(b)(6): "any other reason that justifies relief."
Defendant first argues that the Court improperly relied on hearsay statements in ruling that Plaintiffs met the prima facie case. With its September 5, 2014 Order, the Court thoroughly detailed the factual basis for Plaintiffs' claims, and thus does not do so again here. As is relevant to the present motion, Defendant focuses on three instances of hearsay: (1) a statement relayed to Plaintiffs that Defendant allegedly said, "Why would I get rid of a younger deputy when I can get rid of a Bill Argo or Roger Dyals?"; (2) statements from Kevin Barber to Plaintiffs about how Defendant was determined to get rid of the "greybeards"; and (3) a chart created from Defendant's records showing a pattern of age discrimination.
The case law of this circuit is clear that "a district court may consider a hearsay statement in passing on a motion for summary judgment if the statement could be reduced to admissible evidence at trial or reduced to admissible form."
Even assuming that the aforementioned comments and chart could not be reduced to admissible form, Plaintiffs still presented sufficient evidence to meet the prima facie case. Excluding any comments made, Plaintiffs offered the following as circumstantial evidence of intent:
Simply put, the Court is satisfied that Plaintiffs produced sufficient evidence to set forth a prima facie case of age discrimination. This conclusion is bolstered by the fact that Defendant has failed to present any evidence of hardship, extreme or otherwise, that would necessitate reconsideration.
Defendant next quarrels with the Court's finding of a genuine issue of material fact as to pretext. In its motion, Defendant challenges each of the Court's stated bases in an attempt to re-litigate previously decided issues. Specifically, Defendant presents argument as to (1) the severity of the budget shortfall; (2) the individuals hired prior to Plaintiffs' layoffs; (3) the hiring subsequent to the layoffs; (4) the deviation from the ranking system; and (5) the discriminatory comments.
Again, Defendant does "not present newly-discovered evidence or manifest errors necessary for the grant of a [] motion for reconsideration. Instead, his motion improperly attempt[s] to relitigate old matters by rehashing arguments he had previously made."
As to Plaintiff Dyals' FLSA claim, this Court previously ruled that Defendant did not meet his burden of proving the law enforcement exemption applied because he did not produce any evidence that Dyals' work period was more than seven but less than twenty-eight days. To rectify his prior omission, Defendant now presents the affidavit of Michael Fender, the Director of Finance for Camden County, the final line of which states "Dyals's work period was 14 days." (Doc. 67, Ex. 1 ¶ 10.) This unsupported assertion is not "of a strongly convincing nature [that would] induce the court to reverse its prior decision."
The Court has thoroughly considered the issues that form the basis of its prior ruling and finds neither a reason nor a legal basis for reconsidering its previous order. Defendant's motion for reconsideration of this Court's September 5, 2014 Order denying in part Defendant's motion for summary judgment (doc. 67) is therefore DENIED. To the extent Plaintiff attempts to assert a claim under FEPA, however, such a claim is DISMISSED.
As to the FEPA claim, Defendant asserts that Plaintiffs' complaint is "devoid of any factual basis, legal theory, or other allegation as to how [Defendant] violated the [FEPA]." (Doc. 67 at 19.) FEPA's language, however, mirrors that of the ADEA. Moreover, Count I of Plaintiffs' second amended complaint refers generically to Age Discrimination, and not to the ADEA specifically. Thus, the "complaint clearly indicates the grounds upon which the Plaintiff[s' discrimination] claim rests."