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Pouyeh v. University of Alabama/Department of Ophthamology

United States District Court, N.D. Alabama, Southern Division

November 5, 2014

BOZORGMEHR POUYEH, Plaintiff,
v.
UNIVERSITY OF ALABAMA/DEPARTMENT OF OPHTHAMOLOGY, Defendant

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[Copyrighted Material Omitted]

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Bozorgmehr Pouyeh, Plaintiff, Pro se, Miami, FL.

For The Board of Trustees of The University of Alabama, Board Members, Robert J. Bentley, In individual capacity and as a member of the Board of Trustees, Thomas R Bice, In individual capacity and as a member of the Board of Trustees, Paul W Bryant, Jr., In individual capacity and as a member of the Board of Trustees, Karen P Brooks, In individual capacity and as a member of the Board of Trustees, John H England, Jr, In individual capacity and as a member of the Board of Trustees, Joseph C Espy, III, In individual capacity and as a member of the Board of Trustees, Roland W Gray, In individual capacity and as a member of the Board of Trustees, Andria Scott Hurst, In individual capacity and as a member of the Board of Trustees, Vanessa Leonard, In individual capacity and as a member of the Board of Trustees, III W Davis Malone, In individual capacity and as a member of the Board of Trustees, John J McMahon, In individual capacity and as a member of the Board of Trustees, Harris V Morrissette, In individual capacity and as a member of the Board of Trustees, Finis E St. John, IV, In individual capacity and as a member of the Board of Trustees, William Britt Sexton, In individual capacity and as a member of the Board of Trustees, Marietta M Urquhart, In individual capacity and as a member of the Board of Trustees, Kenneth L Vandervoort, In individual capacity and as a member of the Board of Trustees, III James W Wilson, In individual capacity and as a member of the Board of Trustees, Dr. Charles Ray Nash, In his individual capacity as Vice Chancellor for Academic and Student Affairs of University of Alabama System and defendants, Dr. Russell W Read, In his Individual capacity as director of ophthalmology residency program at UAB, Dr. Lisa Willett, in her individual capacity as Director of Internal Medicine residency program at UAB, Defendants: Lisa J Huggins, LEAD ATTORNEY, UNIVERSITY OF ALABAMA SYSTEM, Office of Counsel, Birmingham, AL.

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MEMORANDUM OPINION

KARON OWEN BOWDRE, CHIEF UNITED STATES DISTRICT JUDGE.

This matter --asserting employment discrimination, " education discrimination," and Constitutional violations brought pursuant to § 1983--is before the court on " Motion for Reconsideration of Final Order to Dismiss with Preducie [sic] of the Fourth Amendment [sic] Complaint" (doc. 97); " Motion for Leave to Supplemet [sic] the 'Motion for Reconsideration of Final Order of Dismissal'" (doc. 106); and " Motion for Hearing for the 'Motion for Reconsideration Final Order of Dismissal'" (doc. 107). For the reasons stated below, the court FINDS that the Motion for Leave to Supplement and the Motion for Hearing are due to be DENIED, and the Motion for Reconsideration is due to be GRANTED, and the court will AMEND its prior Memorandum Opinion as further discussed below. However, for the reasons stated below, the court FINDS that a reconsideration of this matter renders the same result; this case is due to be DISMISSED in its entirety, and the court will CONFIRM its Final Order to that effect.

The Plaintiff, Dr. Bozorgmehr Pouyeh, brings the Motion for Reconsideration under Rules 59 and 60 of the Federal Rules of Civil Procedure. A motion to alter or amend under Rule 59 does not provide a mechanism for a dissatisfied party to re-litigate a matter. Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (" A Rule 59(e) motion cannot be used to relitigate old matters, raise argument or present evidence that could have been raised prior to the entry of judgment" ). The Eleventh Circuit has recognized two grounds for granting a Rule 59 motion: " [1] newly-discovered evidence or [2] manifest errors of law or fact." Id. at 1343 (quoting In re Kellogg, 197 F.3d 1116, 1119 (11th Cir. 1999)). Courts in this Circuit have recognized that an intervening change in controlling law is also a ground for reconsideration and an exception to the law of the case doctrine. See, e.g., Summit Med. Ctr. of Ala., Inc. v. Riley, 284 F.Supp.2d 1350, 1355 (M.D. Ala. 2003) (addressing a Rule 59 motion); Oliver v. Orange Cnty., Fla., 456 F.App'x 815, 818 (11th Cir. 2012) (listing the following exceptions to the law of the case doctrine, allowing a district judge to reconsider a prior ruling: " (1) new evidence; (2) an intervening change in the law that dictates a different result; or (3) that the prior decision was clearly erroneous and would result in manifest injustice." ).

In his motion for reconsideration, Dr. Pouyeh also invokes relief under Rule 60. Rule 60 provides additional grounds for relief from a court order, such as " mistake, inadvertence, surprise, or excusable neglect" (60(b)(1)); " fraud ..., misrepresentation, or misconduct by an opposing party" (60(b)(3)); " the judgment is void" (60(b) (4)); " the judgment has been satisfied, released or discharged ... (60(b)(5)); or " any other reason that justifies relief" (60(b)(6)). Fed.R.Civ.P. 60(b). Because Dr. Pouyeh presents his request for reconsideration under both rules without distinguishing which ground for reconsideration falls within which rule, the court will simply address the specific grounds he enunciates for reconsideration and his corresponding motion to supplement the record.

Intervening Change in Law

One ground for reconsideration is when a party presents to the court an

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intervening change in law that dictates a different result. In his motion for reconsideration and motion for leave to supplement the record with additional case law, Dr. Pouyeh did not present an intervening change in the law; all the cases he cited were decided well before the original briefing. For that reason, the court FINDS, in its discretion, that the motion for leave to supplement is due to be DENIED. However, to determine whether the motion for reconsideration is due to be granted, the court will address the other grounds for reconsideration.

New Evidence/Mistake based on Evidence Not Part of the Original Record

A second ground for reconsidering a prior decision is the presentation of new evidence that was not available to the court at the time of the original decision. Dr. Pouyeh did present new evidence in his motion for reconsideration regarding the exhaustion of administrative remedies under the Title VII claim. In its previous Memorandum Opinion addressing the motion to dismiss, the court had found " an apparent absence of the condition precedent to the filing of a Title VII claim: the exhaustion of administrative remedies." The court had noted that Dr. Pouyeh challenged UAB's denial on October 29, 2011 of an interview for a residency program and attached an EEOC charge dated April 30, 2012, more than 180 days after the challenged action. The court stated that " [a]ssuming [the charge] was filed on or subsequent to the date [Dr. Pouyeh] signed it, the EEOC charge was not filed within 180 days of the alleged violation, which would have expired on April 26, 2012. Thus, the EEOC charge was untimely and did not meet the condition precedent for the [2011] alleged violation ...." (Doc. 95, at 6).

The court recognizes that Defendant did not raise the exhaustion of administrative remedies issue, and, because the court raised it sua sponte, this motion for reconsideration is Dr. Pouyeh's first opportunity to address the issue. He addresses it in part by attaching the EEOC Charge Detail Inquiry. This document was not attached to any of the four complaints and was not otherwise incorporated by reference into them, and the court is addressing a motion for reconsideration of a motion to dismiss, not a motion for summary judgment. However, the court will consider this document at this juncture without converting the motion into a motion to dismiss; " '[b]ecause exhaustion of administrative remedies is a matter in abatement and not generally an adjudication on the merits, [the issue of exhaustion] should be raised in a motion to dismiss [and] it is proper for a judge to consider facts outside of the pleadings'" to resolve this particular issue and develop the record. Tillery v. United States Dep't of Homeland Sec., 402 F.App'x 421, 424 (11th Cir. Oct. 22, 2010) (Title VII case quoting Bryant v. Rich, 530 F.3d 1368, 1377 (11th Cir. 2008) (PLRA case addressing exhaustion issue; the Eleventh Circuit found it applicable to Tillery's Title VII exhaustion of judicial remedies issue).

The EEOC Charge Detail Inquiry document reflects that the EEOC had received charge information by mail from Dr. Pouyeh on March 29, 2012, well within the 180-day period; that, on April 20, 2012, the EEOC mailed back to him a charge for his signature and for return within 30 days; and that, on April 25, 2012, the charge was drafted and mailed to Dr. Pouyeh for a second time for dating and signing. (Doc. 97, at 23, Ex. 1). Because the Charge Detail Inquiry document was not attached as an exhibit to his complaint with the EEOC Charge, the record in this

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case did not reflect this information until Dr. Pouyeh provided it with his current motion. Dr. Pouyeh explains in the current motion that he was living in Miami at the time he decided to file a discrimination charge with the Birmingham District Office of the EEOC, and so, the charging process occurred by mail, and he reiterates the dates and times of mailing reflected on the Charge Detail Inquiry.

Because of this new information that was not previously a part of the record in this case, the court acknowledges that the EEOC received Dr. Pouyeh's charging information within the 180 day period. Although Dr. Pouyeh did not sign the EEOC charge within the 180 day period, this additional information reflects that the EEOC received his charge information before that deadline. EEOC regulations interpret the relevant Title VII provisions to mean that a charge is " filed" when the Commission receives it. See 29 C.F.R. § 1601.13(a); see also Taylor v. Gen. Tel. Co., 759 F.2d 437, 442 (5th Cir. 1985) (holding that for the purposes of Title VII, Taylor's charge was filed when the EEOC received it ); Clark v. Coats & Clark, Inc., 865 F.2d 1237, 1240-41 (11th Cir. 1989) (holding, in an ADEA case, that the EEOC's timely receipt of the former employee's informal intake questionnaire constitutes the timely filing of an EEOC charge even though the employee signed the formal charge after the 180 day period).

Accordingly, the court WILL GRANT the motion for reconsideration to correct its ruling[1] as to the issue regarding exhaustion of administrative remedies for Title VII involving the timeliness of the EEOC charge dated April 30, 2012; the court FINDS that the charge was timely filed and WILL AMEND its ruling in the prior Memorandum Opinion (doc. 95) to so reflect. However, that finding does not change the outcome, as the court made an alternative ruling on the Title VII claim, finding that it is due to be dismissed because Dr. Pouyeh did not meet his prima facie case. That ruling stands.

In addition to the Charge Detail Inquiry, Dr. Pouyeh attached to his motion for reconsideration two additional exhibits: Exhibit 2 - Names of approved medical schools by liaison of AMA and CMA; and Exhibit 3 - website printout of ECFMG (Educational Commission for Foreign Medical Graduates). These exhibits do not relate to the administrative exhaustion issue, are matters outside the pleadings, and are inappropriate for the court to consider on a motion to dismiss. Accordingly, the court WILL EXCLUDE those documents by striking them. See Fed. R. Civ. P. 12(d).

Clearly Erroneous/Manifest Injustice

Having granted the motion for reconsideration, the court considers the other issues raised in Dr. Pouyeh's motion. Dr. Pouyeh argues that the court's prior decision was clearly erroneous and would result in manifest injustice and proffers the following reasons.

Plaintiff's Qualifications for Ophthalmology Residency

Dr. Pouyeh argues that " the Court truly did a manifest error to ignore," in the Memorandum Opinion's statement of facts, his " qualifications ...


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