MEMORANDUM OPINION

NORA BARRY FISCHER, District Judge.

I. Introduction

Pending before the Court is Plaintiff Jalaine Gethers' Motion Seeking Relief from Judgment Pursuant to Federal Rules of Civil Procedure 60(b)(2), 60(b)(3) and 60(d)(3) (Docket No. 93). Defendant PNC Bank filed a Response opposing Plaintiff's motion and a request for an award of attorneys' fees incurred in defending the motion, Plaintiff replied to same and Defendant filed its sur-reply brief. (Docket Nos. 97, 99, 103). On November 27, 2018, the Court held oral argument on whether Plaintiff is entitled to a hearing on her motion. (Docket No. 105). After reviewing the parties' briefs and the transcript of the oral argument, along with the declarations and documents subsequently filed by PNC, (Docket Nos. 122, 123, 124, 125), the Court finds that Plaintiff is not entitled to relief from judgment under any theory. Accordingly, Plaintiff's motion is denied, as is PNC's request for an award of attorneys' fees.

II. Procedural and Factual Background

On December 1, 2015, Plaintiff commenced this action pro se, asserting claims against PNC for race discrimination and retaliation under Title VII of the Civil Rights Act of 1964. (Docket No. 3). Plaintiff, who is African-American, alleged that PNC discriminated against her by terminating her on the basis of race and retaliating against her because she lodged an internal complaint that a supervisor, Duane Fahrion, denied her a promotion because of her race. PNC moved for summary judgment with respect to both of Plaintiff's claims. (Docket Nos. 42-46).

On May 9, 2017, this Court issued a Memorandum Opinion and Order granting PNC's motion and entering judgment in favor of PNC and against Plaintiff. (Docket Nos. 64, 65). In summary, PNC Senior Employee Relations Investigator Jean Olenak found that Plaintiff processed at least nine return transactions for another employee, Rosalind Jackson, between May and July 2013 without following proper company procedures, and consequently both had violated PNC's code of ethics. (Docket No. 64 at 7). Olenak recommended to Plaintiff's direct supervisor, Amy Yates,1 that she and Jackson be terminated, and Yates agreed. (Id. at 5, 9).

In granting summary judgment, the Court held that Plaintiff failed to establish a prima facie case of unlawful termination, as she cited no evidence indicating that PNC treated a similarly situated employee better than it treated her because of race. (Docket No. 64 at 22). In addition, the Court held that Plaintiff failed to establish a prima facie case of retaliation because there was no causal relationship between Plaintiff's complaint against Fahrion and her termination, or PNC's alleged resistance to her receipt of unemployment benefits, and because her contention that Fahrion was "very cold" to her did not constitute a materially adverse employment action. (Id. at 28-29). As the Court explained, "[e]ven assuming that Fahrion knew that [Plaintiff] complained about him . . . and then talked to her less, [she] is unable to state a prima facie retaliation claim." (Id. at 29). The Court also concluded as to both claims that PNC had a legitimate, non-discriminatory reason for terminating Plaintiff because she violated PNC's code of ethics by circumventing the procedures for processing Jackson's return transactions. (Id. at 7, 22, 30).

On June 6, 2017, Plaintiff's current counsel entered an appearance and filed a motion for reconsideration of the Court's order granting PNC's summary judgment motion. (Docket Nos. 67, 68). Following extensive briefing and argument, the Court issued a Memorandum Opinion and Order on January 23, 2018, denying reconsideration. (Docket Nos. 89, 90). Specifically, the Court found that Plaintiff was not entitled to relief under Rule 59(e), which applied because the motion was filed within 28 days after entry of judgment, as she only sought to relitigate issues the Court already had decided. (Docket No. 89 at 17).

On February 13, 2018, Plaintiff filed an appeal of the Court's May 9, 2017 Order granting PNC's summary judgment motion and the January 23, 2018 Order denying Plaintiff's motion for reconsideration. Plaintiff filed her appellate brief on July 5, 2018, and PNC filed its response on August 30, 2018.

On September 17, 2018, Plaintiff filed the pending motion for relief from judgment with this Court, and also moved to stay the appellate proceedings pending disposition of her motion here. The Third Circuit Court of Appeals granted Plaintiff's motion to stay on September 26, 2018.

III. Plaintiff's Motion for Relief from Judgment and PNC's Response

Plaintiff argues that she is entitled to relief from judgment because PNC and its counsel committed a fraud upon her and the Court in litigating and arguing its motion for summary judgment. (Docket No. 93, ¶ 2). Plaintiff alleges that PNC knowingly withheld a key page from a document and then advanced false sworn declarations so that it could argue a position based on the false statements.2 (Id.). The document in question is a report written by Jodie Fine-Sheriff, PNC's Employee Relations Investigator, concerning her investigation of Plaintiff's complaint against Fahrion. (Docket No. 93-1 at 8-13). According to Plaintiff, the last page of Fine-Sheriff's report, which previously was not produced, establishes that Fahrion's declaration stating he was unaware Plaintiff lodged a complaint about him until after she was no longer employed at PNC "appear[s] to be false," as does Fine-Sheriff's declaration stating she did not tell Fahrion that Plaintiff complained about him. (Docket No. 93, ¶¶ 37, 38, 49, 52). Plaintiff maintains that PNC relied on Fahrion's declaration to argue throughout the summary judgment proceedings that he could not have retaliated against her because he was unaware of her complaint. (Id. ¶ 39). Plaintiff claims that PNC's counsel perpetuated this theory in arguing for summary judment, despite knowing that a key document had been withheld and relying on a declaration that "was probably false." (Id. ¶¶ 41, 47). Plaintiff further claims that PNC's counsel bolstered its position by arguing that Fine-Sheriff did not identify who complained about Fahrion, but rather discussed with him various hiring decisions he had made over a period of time, which Plaintiff now contends is false based on the previously missing page of Fine-Sheriff's report.3 (Id. ¶¶ 43, 64).

PNC responds that Plaintiff has not established that she is entitled to relief from judgment under Rule 60. PNC acknowledges that it inadvertently produced an incomplete version of Fine-Sheriff's report to Plaintiff as part of its initial disclosures, but explains that this was an unintentional oversight. (Docket No. 97 at 1-2, 8-11). PNC maintains that the additional information set forth in Fine-Sheriff's report is consistent with the declarations that PNC submitted and the arguments it advanced before this Court and the Third Circuit Court of Appeals. (Id. at 2, 11-14). PNC further argues that Plaintiff is not entitled to relief because the "new evidence" which she relies upon is not material and would not have changed the outcome of this case. (Id. at 2, 17-20).

After oral argument on whether Plaintiff is entitled to a hearing on her claim of fraud, the Court posed several inquiries to PNC which elicited the following:

Against this background, the Court next considers Plaintiff's allegations that PNC engaged in misconduct and fraud in litigating its summary judgment motion.

IV. Analysis

Plaintiff asserts that PNC and its counsel engaged in an elaborate charade to convince the Court that Fahrion did not know that Plaintiff complained about him and that he was not involved in her termination. (Docket No. 99 at 1). Plaintiff claims that the final page of Fine-Sheriff's investigation report, which only came to light after PNC produced it to her counsel in related litigation, contradicts Fahrion's and Fine-Sheriff's sworn declarations and establishes that PNC's counsel has not been honest with the Court concerning the production of documents relative to Plaintiff's internal complaint. (Id.). Accordingly, Plaintiff submits that a hearing should be held and discovery should be permitted to determine whether PNC engaged in fraud on the Court under Rule 60(d)(3), or if it engaged in misconduct or fraud which would warrant relief from judgment under Rule 60(b)(2) or (b)(3). (Docket No. 93 at 26). The Court finds that a hearing is unnecessary, as the existing record makes clear that Plaintiff has not met her burden to obtain relief under Rule 60.

A. Plaintiff is not entitled to relief under Rule 60(b)(2).

Federal Rule of Civil Procedure 60(b) permits a party to seek relief from a final judgment or order "under a limited set of circumstances including fraud, mistake, and newly discovered evidence."4 Gonzalez v. Crosby, 545 U.S. 524, 528 (2005). The Third Circuit Court of Appeals views Rule 60(b) motions as "extraordinary relief which should be granted only where extraordinary justifying circumstances are present." Bohus v. Beloff, 950 F.2d 919, 930 (3d Cir. 1991) (citation omitted).

In particular, Rule 60(b)(2) permits relief when "newly discovered evidence [], with reasonable diligence, could not have been discovered" before summary judgment was granted. Fed. R. Civ. P. 60(b)(2). Newly discovered evidence refers to "evidence of facts in existence at the time of [summary judgment] of which the aggrieved party was excusably ignorant." Bohus, 950 F.2d at 930 (citation omitted). A party is entitled to relief only if the newly discovered evidence is "(1) material and not merely cumulative, (2) could not have been discovered prior to trial through the exercise of reasonable diligence, and (3) would probably have changed the outcome of the [motion]." Id. (citations omitted). To obtain Rule 60(b) relief, the movant "bears a heavy burden" and must show more than the "potential significance of the new evidence." Id. (citations omitted).

Plaintiff has not met her heavy burden to show that she is entitled to relief under Rule 60(b)(2) because the last page of Fine-Sheriff's report is not material, as it would not have changed the outcome of the summary judgment proceedings on her retaliation claim.5 The Court held that Plaintiff did not establish a prima facie case of retaliation because she did not produce evidence sufficient to raise the inference that her internal complaint was the likely reason for her termination. (Docket No. 64 at 25). In that regard, the Court determined that the temporal proximity between her complaint about Fahrion and her termination, as well as PNC's alleged resistance to her receipt of unemployment benefits, was too long as a matter of law for her to show the requisite causal connection. (Id. at 28-29). In addition, Plaintiff's contention that Fahrion was "very cold" to her was not an adverse employment action. (Id. at 29). As the Court explained, "[e]ven assuming that Fahrion knew that [Plaintiff] complained about him . . . and then talked less to her, [she] is unable to state a prima facie retaliation claim" because "[a] reasonable employee would not be dissuaded from complaining about suspected discrimination in the workplace if less verbal interaction with a racially biased manager would be the only result." (Id.) (emphasis added). The Court's decision on Plaintiff's retaliation claim was not based on evidence of what Fahrion knew. Nevertheless, the Court made clear that even if Fahrion knew about Plaintiff's complaint, she did not establish a prima face case of retaliation. Thus, even if the last page of Fine-Sheriff's report had been available to Plaintiff and means what she now claims,6 it would not have changed the Court's decision on Plaintiff's retaliation claim.7

In addition to holding that Plaintiff did not establish a prima facie retaliation claim, the Court also found that PNC had a legitimate non-discriminatory reason for terminating Plaintiff because she and Jackson violated PNC's code of ethics. (Docket No. 64 at 30). The last page of Fine-Sheriff's report and the excerpt of Yates' deposition testimony certainly would not have changed the Court's decision that summary judgment was appropriate for that additional reason. Accordingly, Plaintiff is not entitled to relief under Rule 60(b)(2).

B. Plaintiff is not entitled to relief under Rule 60(b)(3).

Likewise, Plaintiff is not entitled to relief under Rule 60(b)(3), which provides that a party may obtain relief if the opposing party engaged in fraud, misrepresentation or misconduct. Fed. R. Civ. P. 60(b)(3). To prevail on a Rule 60(b)(3) motion, the moving party "must establish that the adverse party engaged in fraud or other misconduct, and that this conduct prevented the moving party from fully and fairly presenting his case." Stridiron v. Stridiron, 698 F.2d 204, 207 (3d Cir. 1983). "Failure to disclose or produce evidence requested in discovery can constitute Rule 60(b)(3) misconduct, id., but the Third Circuit has "not state[d] . . . that every failure to produce discovery qualifies as Rule 60(b)(3) misconduct."8 Floorgraphics Inc. v. News Am. Mktg. In-Store Servs., Inc., 434 F. App'x 109, 112 (3d Cir. 2011). "In order to sustain the burden of proving fraud and misrepresentation under Rule 60(b)(3), the evidence must be clear and convincing." Id. (quoting Brown v. Pennsylvania R.R. Co., 282 F.2d 522, 527 (3d Cir. 1960)).

Here, Plaintiff has not shown by clear and convincing evidence that PNC deliberately withheld the last page of Fine-Sheriff's report and such conduct prevented her "from fully and fairly presenting [her] case." Stridiron, 698 F.2d at 207. First, the Court is satisfied that PNC's initial production of an incomplete version of Fine-Sheriff's report was inadvertent and does not qualify as fraud or misconduct under Rule 60(b)(3). See Floorgraphics, 434 F. App'x at 112 (not every failure to produce discovery constitutes Rule 60(b)(3) misconduct). In that regard, the Court credits Attorney Pierce's declaration dated January 17, 2019, explaining that PNC's failure to produce the last page of Fine-Sheriff's report was an unintentional oversight, and she was not aware that an incomplete document had been produced as part of PNC's initial disclosures. See supra at 5. As PNC did not engage in fraud or misconduct, Plaintiff was not prevented from fully and fairly presenting her case, particularly in view of the fact that the missing page would not have changed the outcome of the summary judgment proceedings as discussed above.

C. Plaintiff has not shown a fraud on the Court under Rule 60(d)(3).

Finally, Plaintiff is not entitled to relief under Rule 60(d), which preserves the Court's power to "set aside a judgment for fraud on the court." Fed. R. Civ. P. 60(d)(3). Fraud on the court is distinct from the type of fraud covered by Rule 60(b)(3), which, as discussed, includes misrepresentations or misconduct by opposing parties or counsel in a case. See Fed. R. Civ. P. 60(b)(3); see also Hobbs v. Pennell, Civ. No. 87-285-GMS, 2009 WL 1975452, at *3, n.2 (D. Del. July 8, 2009) (distinguishing fraud under Rule 60(b)(3) from fraud on the court under Rule 60(d)(3)).

The Supreme Court has explained that fraud on the court must involve an intentional plan to deceive the court and also must affect the public interest in a way that fraud between individual parties does not. See Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 246 (1944) (explaining that the harm of the fraud was so broad that it "involve[d] far more than an injury to a single litigant," but was rather "a wrong against the institutions set up to protect and safeguard the public, institutions in which fraud cannot complacently be tolerated consistently with the good order of society"), overruled on other grounds, Standard Oil Co. v. United States, 429 U.S. 17 (1976). Accordingly, in order to prove fraud on the court, a party must show: "(1) an intentional fraud; (2) by an officer of the court; (3) which is directed at the court itself; and (4) that in fact deceives the court." Herring v. United States, 424 F.3d 384, 386 (3d Cir. 2005). "[A] determination of fraud on the court may be justified only by the most egregious misconduct directed to the court itself, and [] it must be supported by clear, unequivocal and convincing evidence." Id. at 386-87 (internal quotation marks and citation omitted). Examples of the egregious misconduct which constitutes fraud on the court include bribery of a judge or jury or fabrication of evidence by counsel. Id. at 390.

Plaintiff has not established by clear, unequivocal and convincing evidence that PNC engaged in fraud on the court. First, PNC's counsel did not perpetrate an intentional fraud directed to the Court. As already discussed, the Court credits Attorney Pierce's explanation that PNC's failure to initially produce the last page of Fine-Sheriff's investigation report was an unintentional oversight. Although the Court finds that PNC's failure to initially disclose the complete document was inadvertent, it is worth noting that non-disclosure is not sufficient to sustain a fraud on the court claim. See In re Am. Bus. Fin. Servs., Inc., 471 B.R. 354, 365 (Bankr. D. Del. May 18, 2012) (citing Shaw v. AAA Eng'g & Drafting Inc., 138 F. App'x 62, 72 (10th Cir. 2005) (holding that failure to disclose does not constitute egregious conduct necessary for a fraud on the court claim); Wilson v. Johns-Manville Sales Corp., 873 F.2d 869, 872 (5th Cir. 1989) ("[The mere non-disclosure to an adverse party and to the court of facts pertinent to a controversy before the court does not add up to fraud upon the court. . . .")). In addition, the Court was not deceived in any way because, as discussed, the last page of Fine-Sheriff's report would not have changed the Court's decision that Plaintiff failed to establish a prima facie case of retaliation or that PNC had a legitimate, non-discriminatory reason for terminating her.

In sum, Plaintiff has leveled a very serious allegation that PNC committed a fraud upon this Court by withholding a key page from a document and advancing false sworn declarations in order to argue a position based on those false statements. (Docket No. 93, ¶ 2). Despite this serious allegation, Plaintiff's position is premised on a fair amount of speculation. See id. ¶ 5 (asserting PNC's argument that Fahrion did not know Plaintiff complained about him "appears to be false"); ¶ 33 (stating that the previously unproduced page of Fine-Sheriff's report "suggests" that the sworn declarations contain false statements); ¶¶ 37, 38 (claiming Fahrion's averments that he did not know about Plaintiff's complaint until after she was no longer employed with PNC "appear to be false"); ¶ 47 (contending that PNC's counsel relied upon a sworn declaration that "was probably false"). Contrary to Plaintiff's speculation that the final page of Fine-Sheriff's report shows Fahrion was aware of Plaintiff's complaint and demonstrates that certain declarations they submitted were false, Fine-Sheriff's handwritten notes of her discussion with Fahrion verify that she did not inform him of the complaint, but rather discussed with him various personnel decisions involving numerous employees, not just Plaintiff. For this reason, and the others discussed herein, Plaintiff has not established by clear, unequivocal and convincing evidence that PNC engaged in an intentional plan to deceive the Court which warrants relief under Rule 60(d)(3).

D. PNC has not established that it is entitled to attorneys' fees.

PNC requests that the Court award attorneys' fees incurred in defending against Plaintiff's motion pursuant to 28 U.S.C. § 1927 and the Court's inherent power. (Docket No. 97 at 20-22). "[S]anctions may not be imposed under § 1927 absent a finding that counsel's conduct resulted from bad faith, rather than misunderstanding, bad judgment, or well-intentioned zeal." E.E.O.C. v. U.S. Steel Corp., 877 F.Supp.2d 278, 288 (W.D. Pa. 2012) (citation omitted). In addition, "a finding of bad faith is usually required before inherent-power sanctions are ordered. . . ." Id. (citation omitted). Bad faith must be demonstrated by clear and convincing evidence. Id. at 292. PNC's request for an award of attorneys' fees is denied, as the Court finds that PNC has not shown clear and convincing evidence of bad faith by Plaintiff's counsel in litigating her motion for relief from judgment.

V. Conclusion

As another District Court aptly stated, "[g]iven the importance of finality in litigation, Rule 60 allows for relief from judgments under limited circumstances and the burden to obtain such relief is high." Advanced Multilevel Concepts, Inc. v. Bukstel, Civ. Action No. 11-3718, 2014 WL 6907973, at *13 (E.D. Pa. Dec. 9, 2014). For the foregoing reasons, Plaintiff has not met that high burden and her motion seeking relief from judgment under Rule 60(b)(2), 60(b)(3) and 60(d)(3) is denied. An appropriate Order follows.