United States District Court, E.D. Michigan, Southern Division
KENNETH J. BOUCHARD, Plaintiff,
CITY OF WARREN, Defendant.
ORDER DENYING DEFENDANT'S MOTION FOR
INTERLOCUTORY APPEAL, AND STAY OF PROCEEDINGS [#48]
Page Hood United States District Judge.
filed this cause of action on October 17, 2014, alleging that
he was constructively discharged in violation of the Family
and Medical Leave Act (“FMLA”), the Michigan
Whistleblower Protection Act (“WPA”), and
Michigan public policy. On March 31, 2017, the Court issued
and Order that denied in part and granted in part
Defendant's Motion for Summary Judgment, ruling that a
genuine dispute of material fact existed with respect to
Plaintiff's FMLA and WPA claims. On April 14, 2017,
Defendant filed a “Motion for Reconsideration re Order
on Motion for Summary Judgment, Order on Motion to Dismiss,
Order on Motion to Compel, Or Alternatively, to Modify and
Certify the Order for Interlocutory Appeal and For a Stay of
Proceedings.” Dkt. No. 48.
relevant facts regarding this case were set forth in the
Court's March 31, 2017 Order. The Court incorporates
those facts by reference in this Order.
order to obtain reconsideration of a particular matter, the
party bringing the motion for reconsideration must: (1)
demonstrate a palpable defect by which the Court and the
parties have been misled; and (2) demonstrate that
“correcting the defect will result in a different
disposition of the case.” E.D. Mich. L.R. 7.1(h)(3).
See also Graham ex rel. Estate of Graham v. County of
Washtenaw, 358 F.3d 377, 385 (6th Cir. 2004); Aetna
Cas. and Sur. Co. v. Dow Chemical Co., 44 F.Supp.2d 865,
866 (E.D. Mich. 1999); Kirkpatrick v. General
Electric, 969 F.Supp. 457, 459 (E.D. Mich. 1997).
“palpable defect” is a “defect which is
obvious, clear, unmistakable, manifest, or plain.”
Olson v. The Home Depot, 321 F.Supp.2d 872, 874
(E.D.Mich. 2004). The movant must also demonstrate that the
disposition of the case would be different if the palpable
defect were cured. E.D. Mich. L.R. 7.1(h)(3). Brown v.
Walgreens Income Protective Plan for Store Managers, No.
10-CV-14442, 2013 WL 1040530, at *1 (E.D. Mich. Mar. 15,
2013). “[T]he 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.” E.D. Mich. L.R. 7.1(h)(3).
Court finds that Defendant fails to offer any new argument
regarding the WPA and FMLA claims. Defendant's current
arguments, like its arguments in its Motion for Summary
Judgment, focus on limited facts and generally ignore that
the facts must be viewed in a light most favorable to the
non-moving party - Plaintiff. Defendant does not identify or
acknowledge many of the facts that the Court found
constituted the basis for the genuine disputes of material
fact with regard to the WPA and FMLA claims. See,
e.g., Dkt. No. 46, PgID 1191-92 (events set forth at
numbered paragraphs) and 1198 (“[t]hat Defendant was
requiring Plaintiff to submit to, and pass, a ‘fitness
for duty' evaluation before returning to work constitutes
evidence that Defendant, at a minimum, was concerned that
Plaintiff suffered from a serious health condition”).
Defendant's arguments reveal the true basis for its
motion for reconsideration - it did not like the Court's
ruling the first time and seeks to persuade the Court to
adopt Defendant's version of the case. The threshold for
relief pursuant to Local Rule 7.1(h)(3) requires more.
also offers its perspective of what some “facts”
are. Defendant assumes that because Plaintiff has not offered
competing facts, Defendant's representation of the
veracity of those facts must be accepted as true. The Court
concludes that some of those “facts” require a
credibility determination by the fact finder. One example of
such an “undisputed” fact asserted by Defendant
is that “neither Easter nor Simlar [the persons who
made Plaintiff submit to a psychological fitness-for-duty
evaluation test before returning to active employment] were
aware that [Plaintiff] had presented before the City Council
or Council of the Whole, prepared a PPP, or raised concerns
about the City's policies, rules, or procedures.”
Dkt. No. 48, PgID 1224. As Easter and Simlar were employed by
Defendant, and as Plaintiff's supervisor Ronald Wuerth
stated that the meeting before the City Council was
“infamous, ” Dkt. No. 38, Ex. 1 at 55, the Court
finds that a fact finder may not deem credible
Defendant's representation that Easter and Simlar were
not aware of Plaintiff's history as it related to those
Court concludes that there is no palpable defect by which it
or the parties has been misled, and it denies Defendant's
motion for reconsideration.
Motion to Modify and Certify the Order for ...