CAMERON MCGOWAN CURRIE, United States District Judge.
By order entered August 2, 2000, the court found Defendant Orangeburg County was not Plaintiff's employer for Title VII purposes. Accordingly, the court granted Defendant's Motion for Summary Judgment as to the Title VII claim and dismissed Plaintiff's outrage claim without prejudice. On August 14, 2000, Plaintiff moved, pursuant to Rules 52 and 59(e), FRCP, for reconsideration of the August 2 order. In the alternative, Plaintiff requested that the court certify to the Supreme Court of South Carolina the question whether Orangeburg County is Plaintiff's employer for Title VII purposes. Finding no merit to any of Plaintiff's requests for relief, the court DENIES the motion in full.
Rule 52(b), FRCP, provides that, on a party's motion filed no later 10 days after entry of judgment, the court may amend its findings — or make additional findings — and may amend the judgment accordingly. The Rule "is not intended to allow parties to rehash old arguments already considered and rejected by the trial court, but rather, is intended to permit correction of any manifest errors of law or fact that are discovered, upon reconsideration." National Metal Finishing Co. v. Barclays American/Commercial Inc., 899 F.2d 119, 122 (1St Cir. 1990).
Motions for reconsideration premised under Rule 59(e), FRCP, are similarly constrained. Such motions are inappropriate merely to introduce new legal theories or new evidence which could have been adduced during the pendency of the prior motion. Keene Corp. v. International Fidelity Ins. Co., 561 F. Supp. 656 (N.D. Ill.), aff'd, 736 F.2d 388 (7th Cir. 1982). The Fourth Circuit recognizes only three limited grounds for a district court's grant of a motion under Rule 59(e), Fed.R.Civ.P.: (1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available earlier; or (3) to correct a clear error of law or prevent manifest injustice. Hutchinson v. Staton, 994 F.2d 1076 (4th Cir. 1993). The Fourth Circuit has emphasized that counsel's mere disagreement with the court's ruling does not warrant a Rule 59(e) motion. Id. (citing Atkins v. Marathon LeTourneau Co., 130 F.R.D. 625, 626 (S.D. Miss. 1990)).
Plaintiff has not identified the specific basis for her motion to reconsider. The court assumes, however, that because Plaintiff charged that "this Court misapprehended the law . . ." in at least ten different particulars, and that the "Court misapprehended the facts in this case," and "ignored all of this supporting evidence," Plaintiff's Rule 59(e) motion is grounded on an alleged clear error of law or need to prevent manifest injustice.
The court has carefully considered the litany of alleged errors recounted by Plaintiff, which total 15 in number. The court has re-examined the complete record, its order, and the pertinent law. This review convinces the court that Plaintiff's motion represents little more than an expression of Plaintiff's disagreement with the court's ruling. It is perhaps understandable that Plaintiff is disappointed by the court's ruling that her Title VII claims were not properly brought against Orangeburg County, especially as Plaintiff may now be time-barred from pursuing the correct party-employer, the Auditor. Nevertheless, a correct application of the law to the facts of this case compels the court to find that Orangeburg County is not Plaintiff's employer.
I. PLAINTIFF'S MOTION FOR RECONSIDERATION
A. Alleged Untimeliness of Employer Defense
Most of Plaintiff's grounds for relief turn on her argument that Defendant waived its right to argue that she was not its employee because it did not raise that defense at the administrative level, and did not clearly assert it in its Answer. In truth, it is Plaintiff who misapprehends the burden of proof on this issue. It was not incumbent on Defendant to disprove that it was Plaintiff's Title VII employer. Rather, the burden of proving all of the elements of a Title VII claim, including employer status, squarely rested on Plaintiff. Curl v. Reavis, 740 F.2d 1323, 1331 n. 2 (4th Cir. 1984) (employee status is an element of substantive Title VII claim). See also Jones v. Seko Messenger, Inc., 955 F. Supp. 931, 934 (N.D. Ill. 1997) (claim dismissed where plaintiff failed to prove Title VII employer status); Lacy v. Carroll McEntee McGinley, Inc., 1994 WL 592158, at 4 (S.D.N.Y. 1994) (unpublished) ("The burden of establishing employer status . . . rests with the plaintiff."). Here, Defendant filed its well-supported motion under Rule 56, FRCP, asserting that it was not Plaintiff's employer. Plaintiff's response failed to overcome Defendant's proof and show that there was a genuine issue for trial on the employer status issue, Rule 56(e), FRCP.
Plaintiff also has used the term "estoppel" previously in arguing Defendant should be estopped from asserting Plaintiff is not its employee. Although significant differences exist between waiver and estoppel defenses, Plaintiff does not distinguish between the two.
Moreover, examination of the pleadings shows that Plaintiff never directly alleged that Orangeburg County was her employer. Although Defendant admitted that it was an employer for Title VII purposes, presumably meaning that it employed the requisite number of employees for the requisite period of time, it did not admit that it was Plaintiff's employer. To the contrary, in its first set of answers to the court's interrogatories filed in this litigation on May 27, 1999, just a little over one month from the date of the filing of the Complaint, Defendant clearly put Plaintiff on notice that it was vigorously contesting its Title VII employer status vis-a-vis Plaintiff:
(B) Furnish a detailed factual basis for each defense you assert in your responsive pleading. If a contract, writing or document forms the basis of any claim against you and/or the basis for any defense asserted, quote or attach the relevant portions, state your construction thereof and your position with regard thereto.
Answer: Plaintiff was employed by Orangeburg County ("the County") in 1992. However, in 1993, the plaintiff accepted a position in the office of the County Auditor. County Auditors are elected officials who have sole hiring and firing authority over their employees. Auditor's employees are not subject to supervision or discipline by the County.
Therefore, the County believes that it is not a proper party to this lawsuit.
Defs Ans. To Court-Ordered Interrog., filed 5/27/99, at 1 (emphasis added). In addition, Defendant repeatedly reasserted its defense that Plaintiff was not Orangeburg County's employee in answers to interrogatories it served on Plaintiff, answers to requests for production of documents it served on Plaintiff, and in correspondence between counsel. See Def's Response to Pltf's Motion to Reconsider, filed 8/24/00, Exhs. A, B, C, D. Thus, any suggestion by Plaintiff that Orangeburg County's employer defense was hatched at the eleventh hour of this litigation is flatly contradicted.
B. Alleged Unfairness Because Plaintiff Has No Surviving Remedy
Plaintiff, who has been represented by counsel throughout this litigation, argues that it is grossly unfair to grant judgment for Orangeburg County on her claims when she has no surviving remedy against the alleged harasser, Fulton, or against the Auditor. Any "unfairness" however, results not from the court's decision, but from tactical litigation choices Plaintiff exercised.
As the court's August 2, 2000, order discussed, there was ample and established precedent at the time Plaintiff instituted her claim that she must prove Orangeburg County's employer status, see Garrett v. Phillips Mills, Inc., 721 F.2d 979, 981-82 (4th Cir. 1983). The law at that time was established that certain public officials in South Carolina were considered state, rather than county, officials. Gulledge v. Smart, 691 F. Supp. 947 (D.S.C. 1988), aff'd, 878 F.2d 379 (4th Cir. 1989) (sheriffs and deputies are state actors); Cone v. Nettles, 417 S.E.2d 523 (S.C. 1992). Just one year before Plaintiff instituted this suit the Fourth Circuit had affirmed dismissal of the plaintiff probate court clerks' § 1983 claims in Amos-Goodwin v. Charleston County Council et al., 161 F.3d 1, 1998 WL 610650 (4th Cir. 1998), on the grounds that as employees of an elected official, the plaintiffs were not subject to county control. Thus, the law was sufficiently clear to put Plaintiff on inquiry notice that she might not be considered a county employee for Title VII purposes.
Just three months after this suit was filed the Court of Appeals, in July 1999, issued Eargle v. Horry County, 517 S.E.2d 3 (S.C.Ct.App. 1999), which conclusively established that Defendant Orangeburg County had no employment authority over Plaintiff, the chief factor under the Garrett test. Plaintiff still had viable remedies at that point, though, even if a Title VII suit against the County was thwarted. She could have asserted claims against Fulton individually and against the Auditor through March 2000, three years after she complained of the sexual harassment by Fulton, which ended the harassment. As the court pointed out in its August 2, 2000, order, Plaintiff at one time could have pursued a Title VII claim against the Auditor based on his alleged tolerance of harassment by Fulton against her.
Claims under 42 U.S.C. § 1983, as well as numerous intentional torts.
Claim under 42 U.S.C. § 1983.
Contrary to Plaintiff's protestations that the court's decision stripped her of her legal remedies, the record reflects that Plaintiff had ample alternative remedies available which she chose not to pursue based on her own tactical decisions. Thus, the court rejects Plaintiff's assertion that inequity results from the October 2, 2000, order.
C. Deference to SHAC/EEOC View that Orangeburg County was Plaintiff's Employer
Next, Plaintiff contends this court should defer to the South Carolina Human Affairs Commission/EEOC view of Plaintiff as the County's employee. Plaintiff cites numerous cases in which an agency's interpretation of its regulations is normally entitled to judicial deference. Plaintiff's reliance on such precedent is misplaced, however, because here SHAC/EEOC was not interpreting its regulations. Rather, in handling Plaintiff's claim, the agency was rendering a determination on an individual claim of discrimination. In such proceedings, it is well established that the agency's proceedings are entitled to no deference at all. As the Fourth Circuit has noted,
This is so because the EEOC has no adjudicatory power. Its proceedings are not binding on the employer and they are not reviewable. Its proceedings are purely non-adversary. Adjudication is the exclusive function of the courts under the Act. And the court trial is
de novo, completely separate from the actions of the EEOC.
Equal Employment Opportunity Comm. v. General Elec. Co., 532 F.2d 359, 370 (4th Cir. 1976).
Moreover, even if the court were inclined to extend some deference to an administrative interpretation, no studied scrutiny transpired here. Plaintiff submitted no evidence demonstrating that either SHAC or the EEOC made a reasoned analysis or consideration of Defendant's status as Plaintiff's Title VII employer. It appears as if the status was simply assumed to be established at the administrative proceedings.
II. PLAINTIFF'S MOTION TO CERTIFY QUESTION OF EMPLOYER STATUS TO SUPREME COURT OF SOUTH CAROLINA
In the alternative, Plaintiff requests that this court certify the issue of Plaintiff's employer to the Supreme Court of South Carolina. Because Plaintiff's claim is a Title VII proceeding, the relevant question involves the identity of Plaintiff's employer for Title VII purposes. The court declines to do so. As the Fifth Circuit has observed,
[A] Plaintiff's status as an employee under Title VII is a question of federal, rather than of state, law; it is to be ascertained through consideration of the statutory language of the Act, its legislative history, existing federal case law, and the particular circumstances of the case at hand.
Calderon v. Martin County, 639 F.2d 271, 272-73 (5
th Cir. 1981). Although state law may be helpful in understanding the inter-relationships among departments, and the hiring and termination processes, the ultimate questions of employee and employer status under Title VII are questions of federal law.
See Cromer v. Brown, 88 F.3d 1315, 1323 (4
th Cir. 1996). Because the court finds no determinative state law issue, certification to the Supreme Court of South Carolina is unwarranted. Accordingly, the court denies Plaintiff's alternative request for certification.
III. CONCLUSION
IT IS THEREFORE ORDERED that Plaintiff's Motion to Reconsider, Alter or Amend, Rules 52 and 59(e), FRCP, is DENIED. IT IS FURTHER ORDERED that Plaintiff's Motion to Certify Issue to the South Carolina Supreme Court is DENIED.