United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR
REHEARING OR RECONSIDERATION
V. PARKER U.S. DISTRICT JUDGE
lawsuit arises from Defendant's termination of Plaintiff,
after Plaintiff partially amputated his finger in a
work-related accident and then failed to follow directives
instructing him to report to the medical department and
misrepresented the condition of his finger. In an Opinion and
Order entered August 23, 2016, this Court granted summary
judgment to Defendant. (ECF No. 56.) In that decision, the
Court also addressed Plaintiff's motion to strike certain
exhibits Defendant offered in support of its summary judgment
motion. Presently before the Court is Plaintiff's Motion
for Rehearing or Reconsideration Pursuant to Eastern District
of Michigan Local Rule 7.1(h), filed September 6, 2016. (ECF
No. 58.) With the Court's permission, Defendant filed a
response to the motion on September 21, 2016. (ECF No. 60.)
Rule 7.1 provides the following standard for motions for
Generally, and without restricting the court's
discretion, the court will not grant motions for rehearing or
reconsideration that merely present the same issues ruled
upon by the court, either expressly or by reasonable
implication. The movant must not only demonstrate a palpable
defect by which the court and the parties and other persons
entitled to be heard on the motion have been misled but also
show that correcting the defect will result in a different
disposition of the case.
E.D. Mich. LR 7.1(h)(3). Palpable defects are those which are
“obvious, clear, unmistakable, manifest or
plain.” Mich. Dep't of Treasury v.
Michalec, 181 F.Supp.2d 731, 734 (E.D. Mich. 2002).
“It is an exception to the norm for the Court to grant
a motion for reconsideration.” Maiberger v. City of
Livonia, 724 F.Supp.2d 759, 780 (E.D. Mich. 2010).
“[A] motion for reconsideration is not properly used as
a vehicle to re-hash old arguments or to advance positions
that could have been argued earlier but were not.”
Smith ex rel. Smith v. Mount Pleasant Pub.Sch., 298
F.Supp.2d 636, 637 (E.D. Mich. 2003) (citing Sault Ste.
Marie Tribe of Chippewa Indians v. Engler, 146
F.3d 367, 374 (6th Cir.1998)).
first argues that the Court committed palpable defects when
it concluded that Defendant's Exhibit 32 to its summary
judgment motion was admissible. Plaintiff maintains that the
Court erred in failing to recognize that the purpose of the
“grievance” meeting summarized in Exhibit 32 is
to settle (i.e. compromise) a dispute and that, therefore,
the document is inadmissible under Federal Rule of Evidence
408. Plaintiff also argues that the Court erred in finding
that the hearsay statements within the document are
admissible under the business record exception and as
admissions of a party opponent. According to Plaintiff, the
Court also erred in finding that Jennifer Hickey, the Manager
of Defendant's Labor Relations Department, could lay the
proper foundation for the document's admissibility.
merely restates the arguments made in support of his motion
to strike Exhibit 32. The Court considered and rejected those
arguments in finding the exhibit admissible. For the reasons
previously stated in the August 23, 2016 decision, the Court
continues to find that the exhibit does not reflect an offer
to compromise and does not contain inadmissible hearsay.
next contends “[t]he Court committed palpable error in
accepting the facts proffered by the Defendant without
recognizing a factual dispute.” (Pl.'s Mot. at 8,
ECF No. 58 at Pg ID 1645.) Plaintiff misconstrues what the
Court did in its decision when summarizing the facts. While
the Court may have stated what Defendant's evidence
showed, it expressly pointed out where that evidence was
disputed or contradicted by Plaintiff's evidence. The
Court did not accept Defendant's proffered facts as true
where that evidence was disputed by Plaintiff's evidence.
This is evident in the sections of the Court's opinion
analyzing Plaintiff's claims.
also argues the Court's decision contains a palpable
error to the extent the Court concluded Plaintiff was not
eligible for FMLA protections because he was not
incapacitated for three consecutive days. Again, the
arguments Plaintiff raises here are the same arguments he
raised in response to Defendant's summary judgment
motion. For the reasons already stated, the Court rejects
those arguments and continues to find that
“Plaintiff's health condition was not the reason he
did not return to work. Rather it was because of his
suspensions and subsequent termination that Plaintiff was
unable to return to work … after his injury.”
(See Op. & Order at 28, ECF No. 56 at Pg ID
Plaintiff contends the Court erred in failing to recognize
his right to ignore Defendant's orders to report to its
medical department and seek treatment from his own doctor.
Plaintiff maintains that Defendant's orders were
unreasonable. Plaintiff made the same argument in response to
Defendant's summary judgment motion and cited the same
case in support of his argument: Cuddington v. United
Health Services, Inc., 826 N.W.2d 519 (Mich. Ct. App.
2012). The Court already rejected Plaintiff's argument
and found Cuddington distinguishable.
short, Plaintiff fails to demonstrate a palpable defect in
this Court's August 23, 2016 decision, much less a defect
the correction of which results in a different disposition of
IT IS ORDERED that Plaintiff's motion for rehearing or