           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                        December 13, 2007

                                     No. 06-20749                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


YVETTE F DANIEL

                                                  Plaintiff-Appellant
v.

HOECHST MARION ROUSSEL, doing business as Aventis
Pharmaceuticals, also known as Sanofi-Aventis;
STEPHANIE DUNGEY; GARY PAUL;
WALLACE KITCHENS, JR.

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                        for the Southern District of Texas
                                   (06-CV-918)


Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
       Yvette Daniel sued defendants alleging they violated her civil rights by
retaliating against her for previously pursuing a civil rights complaint. After the
district court dismissed her claim, Daniel filed a “motion for reconsideration,”
which the district court denied. Although Daniel appealed both the district


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                    No. 06-20749

court’s final judgment and its denial of her motion, we are concerned now only
with the district court’s denial of her motion for reconsideration. We affirm.
                                           I
      According to Daniel, she worked for defendant Hoecht Marion Roussel
(HMR) until 1999.1 Thereafter, she complained to the EEOC of race and sex
discrimination by HMR, and in 2001, filed a civil rights complaint against HMR,
which the district court dismissed on summary judgment.
      Daniel eventually became concerned as to how HMR was relaying her
employment history to potential employers. Therefore, she had Donald Branda,
a private investigator, call HMR to verify the dates of her employment in 2004.
Daniel alleges that the HMR employee with whom Branda spoke gave incorrect
dates for her terms of employment and cast aspersions upon her. She also
alleged that Biovail Corporation, an “affiliate” of HMR, conspired with HMR by
conditioning a potential job on her signing a waiver of liability.
      In March 2006, Daniel sued defendants alleging civil rights violations
under Title VII of the Civil Rights Act of 1964 as amended. She alleged that
HMR’s providing inaccurate information about her employment history, and its
conspiracy with Biovail, were in retaliation for pursuing her earlier civil rights
case. The district court dismissed her suit for failing to state a claim upon which
relief could be granted, because, under circuit precedent, Daniel had to “show
that [HMR] denied her an opportunity because of her previous complaint and
that their actions prevented her from getting another job.” Because Branda’s
phone call was not related to an actual job opportunity, the court concluded that
Daniel could not meet her burden. The court also explained that the comments
allegedly made by the HMR employee to Branda were not discriminatory, the



      1
       The parties dispute numerous aspects of the facts giving rise to this lawsuit; we
assume – without deciding – that Daniel’s factual allegations are true.

                                           2
                                       No. 06-20749

individual defendants were not subject to liability because they were not her
employers, and that Biovail and HMR are not generally affiliated entities.
       The district court entered final judgment on June 21, 2006. The next day
the Supreme Court decided Burlington Northern & Santa Fe Railway Co. v.
White,2 which adopted a different standard for “adverse employment action” than
was then being used in the Fifth Circuit. On July 11, Daniel filed a motion for
reconsideration pursuant to “any and all applicable federal rules [including Rule
60(b)],” arguing that the district court did not have the benefit of Burlington
Northern when it dismissed her claim and that the district court either
misunderstood or ignored evidence that she presented. The district court denied
her motion without explanation on July 19.
       Daniel filed a notice of appeal on August 11, appealing both the district
court’s final judgment and its denial of her motion for reconsideration. A
previous panel of this court dismissed Daniel’s appeal of the final judgment
because she failed to timely appeal it;3 Daniel did timely appeal the court’s
ruling on her motion for reconsideration.
                                              II
       This appeal concerns only the denial of Daniel’s motion for
reconsideration. Because Daniel filed the motion more than ten days after the
entry of judgment, it is deemed a Rule 60(b) motion.4 It is unclear under which
provision of Rule 60(b) Daniel believes she is entitled relief; however, liberally
construing her motion and brief, we perceive enough of an argument that we
cannot say she abandoned her claims.


       2
           126 S. Ct. 2405 (2006).
       3
        See Daniel v. Hoechst Marion Roussel et al., No. 06-20749 (5th Cir. Feb. 23, 2007) (per
curiam order).
       4
         See Shepard v. Int’l Paper Co., 372 F.3d 326, 327 n.1 (5th Cir. 2004); Harcon Barge
Co. v. D & G Boat Rentals, Inc., 784 F.2d 665, 667 (5th Cir. 1986) (en banc).

                                              3
                                         No. 06-20749

       We review the denial of a Rule 60(b) motion for abuse of discretion.5 “By
its very nature, the rule seeks to strike a delicate balance between two
countervailing impulses: the desire to preserve the finality of judgments and the
‘incessant command of the court’s conscience that justice be done in light of all
the facts.’”6 This, though, “is not to say that final judgments should be lightly
reopened. The desirability of order and predictability in the judicial process calls
for the exercise of caution in such matters.”7
       As to her evidentiary arguments, the district court did not abuse its
discretion in denying her motion. The district court’s decision turned not on a
decision as to which of the factual scenarios were true, but only on the grounds
that the allegedly discriminatory acts of defendants could not support a legally
viable claim. The court properly assumed all relevant facts to be true, and the
court did not err by explaining some of the factual allegations defendants
contested. To the extent Daniel alleges newly discovered evidence under Rule
60(b)(2), that provision is not applicable because the evidence could have been
timely discovered or was already alleged.8 And, to the extent Daniel argues that
defendants’ recitation of the evidence was inaccurate and thus fraud upon the
court,9 that is not fraud but only a factual dispute.
       Nor can we say that the district court abused its discretion in declining to
revisit the judgment in light of Burlington Northern. The only provision of Rule


       5
           Patterson v. Mobil Oil Corp., 335 F.3d 476, 486 (5th Cir. 2003).
       6
       Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 401 (5th Cir. 1981) (quoting Bankers
Mortgage Co. v. United States, 423 F.2d 73, 77 (5th Cir. 1970)).
       7
           Id.
       8
        See Fed. R. Civ. P. 60(b)(2) (“newly discovered evidence which by due diligence could
not have been discovered in time to move for a new trial under Rule 59(b)”).
       9
         See Fed. R. Civ. P. 60(b)(3) (“fraud (whether heretofore denominated intrinsic or
extrinsic), misrepresentation, or other misconduct of an adverse party”).

                                                4
                                        No. 06-20749

60(b) relevant to this claim is subsection (6), which allows relief for “any other
reason justifying relief from the operation of the judgment.” “Relief under this
section, however, is appropriate only in an ‘extraordinary situation’ or ‘if
extraordinary circumstances are present.’ Moreover, ‘[a] change in decisional law
after entry of judgment does not constitute exceptional circumstances and is not
alone grounds for relief from a final judgment.’”10
       Other than the change in decisional law, the only circumstance to foot a
claim for Rule 60(b)(6) relief upon is Daniel’s promptness in filing her motion.
While diligence is a factor in analyzing Rule 60(b)(6) requests,11 it is not enough
here to overcome the general rule that changes in decisional law are not
exceptional circumstances. In Garibaldi, the district court granted Rule 60(b)(6)
relief in similar circumstances – a judgment was entered and the Supreme Court
subsequently changed the applicable decisional law;12 in other words, the district
court there did what Daniel asked the district court here to do. In fact, in
Garibaldi, the judgment from which Rule 60(b) relief was being sought gave rise
to an opinion from this court that helped to create the circuit split that justified
the certiorari review that led to the change in decisional law.13 Yet we reversed,
concluding that the district court abused its discretion because those were not
extraordinary circumstances.14 A fortiori, the district court here did not abuse
its discretion in denying Daniel’s motion.
       AFFIRMED.


       10
          United States ex rel. Garibaldi v. Orleans Parish Sch. Bd., 397 F.3d 334, 337 (5th Cir.
2005) (quoting Klapprott v. United States, 335 U.S. 601, 613 (1949) and Batts v. Tow-Motor
Forklift Co., 66 F.3d 743, 747-48 (5th Cir. 1995)).
       11
            Id. at 339.
       12
            Id. at 336-37.
       13
            Id. at 336.
       14
            Id. at 339-40.

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