United States District Court, D. Oregon
OPINION AND ORDER
Michael McShane United State District Judge
after this Court granted Defendants' motions for summary
judgment, Plaintiff moves for relief from judgment under
Federal Rule of Civil Procedure 60(b)(2), arguing that a
letter from Dr. Nicholas Allen constitutes newly discovered
evidence. Pl.'s Mot. for Relief 2, ECF No. 107.
Defendants oppose the motion, arguing that Plaintiff fails to
establish any of the elements necessary to prevail on a
motion for relief from judgment. Def.'s Resp. in
Opp'n to Pl.'s Mot. for Relief 2, ECF No. 110.
Because the content of Dr. Allen's letter could have been
discovered and, in any event, would not have changed the
disposition of the case, Plaintiff's Motion for Relief
from Judgment is DENIED.
60(b)(2) allows a court to relieve a party from judgment when
presented with “newly discovered evidence that, with
reasonable diligence, could not have been discovered in time
to move for a new trial under Rule 59(b).” Fed.R.Civ.P.
60(b)(2). To prevail on a motion for relief from judgment,
Plaintiff must show that the evidence “(1) existed at
the time of the summary judgment motion, ‘(2) could not
have been discovered through due diligence, and (3) was
“of such magnitude that production of it earlier would
have been likely to change the disposition of the
case.”'” W. Helicopter Servs., Inc. v.
Rogerson Aircraft Corp., 777 F.Supp. 1543, 1545 (D. Or.
1991) (quoting Jones v. Aero/Chem Corp., 921 F.2d
875, 878 (9th Cir. 1990)).
argues that although Dr. Allen drafted the letter after the
Court granted summary judgment, the content of the letter
existed before summary judgment. Pl.'s Mot. for Relief 6.
Even assuming that is true, Plaintiff cannot establish the
second and third elements necessary to prevail on her motion
for relief. Plaintiff could have discovered the content of
the letter simply by deposing Dr. Allen. Plaintiff
specifically selected Dr. Allen as one of her four
comparators yet chose to depose only one of the four.
Def.'s Resp. in Opp'n to Pl.'s Mot. for Relief 5.
It may be true that Plaintiff had no reason to believe Dr.
Allen would provide the specific content in his letter.
Still, Plaintiff chose not to depose Dr. Allen, despite the
core of Plaintiff's pay equity claims being whether she
performed work of “comparable character” or
“substantially equal” work to her comparators.
See ORS § 652.220(1); Stanley v. Univ. of
S. Cal., 178 F.3d 1069, 1073-74 (9th Cir. 1999).
Further, if-as Plaintiff now argues-Dr. Allen's views
expressed in his letter were significant enough to alter the
outcome of the case, such that they now warrant relief from
judgment, it seems odd that Plaintiff chose not to depose Dr.
Allen. While selecting which individuals to
depose is a matter of strategy, it is a stretch to say that
Dr. Allen's opinions from his letter could not have been
importantly, Plaintiff's motion for relief from judgment
fails because the content of Dr. Allen's letter would not
have changed the disposition of the case. Dr. Allen
“believe[s] that in terms of academic merit Dr.
Freyd's achievements are equal to if not greater than
[his] own.” Decl. of Nicholas B. Allen 2, ECF No.
109-1. He criticizes the compensation system in U.S. higher
education, stating that “very large disparities in pay
. . . can occur between individuals at the same level of
appointment.” Id. These opinions, however,
have no bearing on the legal standard for pay equity claims.
prevail on her pay equity claims, Plaintiff needed to
demonstrate that her male comparators were paid higher wages
for comparable or substantially equal work. See ORS
§ 652.220(1); Stanley, 178 F.3d at 1073-74. For
this analysis, the pertinent information from Dr. Allen
included his day-to-day work duties, which Dr. Allen
described in a declaration at the summary judgment stage.
See Decl. of Nicholas B. Allen, ECF No. 59. In his
second declaration, Dr. Allen confirmed that “all the
information in [his prior] declaration was factual.”
Decl. of Nicholas B. Allen 2, ECF No. 109. After reviewing
Dr. Allen's work duties in comparison to Plaintiff's,
this Court held that Plaintiff and Dr. Allen do not perform
comparable or substantially equal work sufficient to
establish Plaintiff's pay equity claims. See Op.
& Order 10-13, ECF No. 93. The opinions Dr. Allen
expressed in his letter regarding Plaintiff's academic
merit and the compensation system in higher education are not
relevant to this determination.
also argues that Dr. Allen's letter constitutes new
evidence on her claim of disparate impact. This Court held
that Plaintiff did not provide sufficient statistical
evidence to establish that the University's practice of
offering retention raises has a disparate impact on women.
Op. & Order 17-18. Dr. Allen's belief that “the
system for determining compensation at U.S. Universities is
vulnerable to bias, ” Decl. of Nicholas B. Allen 2, is
also not sufficient statistical evidence to establish a claim
of disparate impact. Further, Dr. Allen acknowledged that
“the University of Oregon cannot unilaterally disarm in
this system if it wishes to attract and retain strong
Court maintains now, as it did in the earlier opinion, that
Plaintiff “is a remarkable teacher and a well-respected
scholar.” Op. & Order 3. No party disputes those
facts. Clearly, Dr. Allen supports Plaintiff's academic
merit and disfavors the current compensation system in U.S.
higher education. However, these sentiments are not relevant
to the legal analysis of whether Plaintiff suffered pay
discrimination based on gender. Dr. Allen's letter does
not change the conclusion that Plaintiff and her four male
comparators do not perform substantially similar work and,
therefore, it would not have changed the disposition of the
case as required to prevail on a motion for relief from
Plaintiff's Motion for Relief from Judgment is denied,
the Court moves now to Defendants' requests for an award
of fees and costs of $12, 587.57. Bill of Costs, ECF Nos. 96,
100. Defendants University of Oregon and Hal Sadofsky seek
$7, 440.80 for transcripts necessarily obtained for use in
the case, $1, 252.82 in copying fees, and $20.00 in docket
fees. Bill of Costs, ECF No. 96. Defendant Michael Schill
seeks recovery of $3, 853.95 for transcripts necessarily
obtained for use in the case and $20.00 in docket fees. Bill
of Costs, ECF No. 100. Plaintiff opposes the motions.
Pl.'s Obj. to Defs.' Bill of Costs, ECF No. 102.
parties, like Defendants here, are generally entitled to an
award of costs under 28 U.S.C. § 1920. Fed.R.Civ.P.
54(d)(1). There is a “presumption in favor of awarding
costs to a prevailing party, ” subject to the
court's discretion. Ass'n of Mexican-American
Educ. v. California, 231 F.3d 572, 591 (9th Cir. 2000).
Plaintiff has not overcome the presumption in favor of
awarding costs and awarding costs here would not be
inequitable nor would it chill potential plaintiffs from
bringing civil rights actions in the future.
Plaintiff is not indigent. Her annual salary is not so modest
that an award here would result in severe injustice. Second,
the relatively small sum requested by Defendants would not
chill future civil rights litigation. Plaintiff argues that
this case is of substantial public importance, similar to
Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236
(9th Cir. 2014), where an employee alleged that her employer
violated the Family Medical Leave Act (FMLA). However,
Plaintiff's claims do not rise to the same level of
technical complexity that was present in Escriba,
where an understanding of expert testimony, workplace
policies, and FMLA regulations were key. Id. at
1248. Further, in concluding that the case presented issues
of substantial public importance, the court relied on a
letter written by an Associate Solicitor for the United
States Department of Labor, which explained that cases like
Escriba “establish the parameters of what
constitutes sufficient employee notice, ” which is
“particularly important to the public interest.”
the plaintiff's claim in Escriba, which defined
new parameters of employee notice under the FMLA, here,
Plaintiff's claims do not establish new standards or
parameters of what may constitute employment discrimination.
Rather, this case was evaluated under previously defined
standards involved in pay equity claims, all of which have
been litigated numerous times before. In addition to the core
differences between this case and Escriba, Plaintiff
has not provided sufficient evidence that an award of a
reasonable amount of costs and fees would be inequitable or
create a chilling effect on future civil rights actions. The
Ninth Circuit explained that the “financial resources
of the plaintiff” and the effect of imposing
“high costs on losing civil rights plaintiffs of modest
means” are considerations a district court should
undertake when deciding whether to award costs.
Stanley, 178 F.3d at 1079-80. But in doing so,
[A] district court need not give affirmative reasons for
awarding costs; instead, it need only find that the reasons
for denying costs are not sufficiently persuasive to overcome
the presumption in favor of an award. . . . Stanley
only held that, in the rare occasion where severe injustice
will result from an award of costs (such as the injustice
that would result from an indigent plaintiff's being
forced to pay tens of thousands of dollars of her alleged
oppressor's legal costs), a district court abuses its
discretion by failing to conclude that the presumption has
been rebutted. No such injustice will result from the award
of $5, 310.55 in this case.
Save Our Valley v. Sound Transit, 335 F.3d 932,
945-46 (9th Cir. 2003). Here, Plaintiff has not overcome the
presumption in favor of an award of costs because Plaintiff
is not indigent and the relatively small sum requested by