United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING MOTION FOR RECONSIDERATION
[34]
HONORABLE STEPHEN J. MURPHY, III UNITED STATES DISTRICT
JUDGE.
Plaintiff
Cheryl Bonner sued her former employer for alleged gender
discrimination and retaliation in violation of Title VII and
Michigan's Elliott-Larsen Civil Rights Act. The main
thrust of her case is simple: (1) she was paid $2, 000 less
per year than males with the same title, and (2) she was
fired ostensibly for disciplinary reasons after filing an
EEOC complaint but the record contains an email from HR
referencing both the EEOC complaint and the efforts to build
a strong case for disciplinary action. After careful
consideration-with the parties help through both briefing and
oral argument-the Court determined that it would be improper
to take the case away from the jury and denied
Defendant's motion for summary judgment. Defendant now
moves for reconsideration of that determination. For the
reasons set forth below, the Court will deny Defendant's
motion.
STANDARD
OF REVIEW
Local
Rule 7.1(h)(3) governs the question of whether
reconsideration is appropriate. The Rule provides two
operative principles: (1) the Court will not grant motions
for reconsideration that merely present the same issues ruled
upon in the original order either expressly or by reasonable
implication, and (2) the movant must demonstrate a palpable
defect that misled the Court and that correcting the defect
would result in a different disposition. A palpable defect is
an error which is obvious, clear, unmistakable, manifest, or
plain. Fleck v. Titan Tire Corp., 177 F.Supp.2d 605,
624 (E.D. Mich. 2001). A motion for reconsideration, however,
is not the appropriate vehicle to re-hash old arguments or to
advance arguments that could have been raised earlier.
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)).
DISCUSSION
Plaintiff
sued Defendant for gender discrimination and retaliation. The
basis for the discrimination claim is that two male employees
with the same title as Plaintiff (Bernard Harris and Mustafa
Saif) were paid $2, 000 more in annual salary, and the basis
for the retaliation claim is that Plaintiff was fired after
filing an EEOC complaint. The Court denied Defendant's
motion for summary judgment because it found that
Plaintiff's claims survived the burden-shifting test
outlined in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973) and Tex. Dep't of Cmty. Affairs v.
Burdine, 450 U.S. 248 (1981). Defendant now challenges
the Court's analysis of: (1) the importance of prior
compensation to the discrimination claim, (2) the relative
supervisory experience of Harris and Saif compared to
Plaintiff, (3) the relative technical proficiencies of Harris
and Saif compared to Plaintiff, and (4) an email from an HR
representative discussing Plaintiffs EEOC complaint. The
Court will address each argument in turn.
I.
The Importance of Prior Compensation
Defendant
first argues that the Court erred by finding that Plaintiff
made a prima facie showing that she was treated less
favorably than similarly situated male employees because she
made $2, 000 less per year while performing the same job. ECF
34, PgID 699-701. Specifically, Defendant argues that
Plaintiff could not make a prima facie showing of
discrimination because Defendant was justified in paying a
female employee less in her salaried position after also
paying her less in a previous hourly position. Id.
The Court found the argument unpersuasive, but Defendant now
argues that the Court's finding conflicts with Sixth
Circuit precedent.
Defendant's
argument raises an issue that has already been ruled on.
Hidden in a footnote, Defendant admits that "it is not,
in offering additional authorities, raising any new facts or
arguments." Id. at 700 n.3. Defendant does not
address why its failure to raise new facts or argument
complies with Rule 7.1(h)(3)'s clear statement that
"the court will not grant motions for rehearing or
reconsideration that merely present the same issues ruled
upon" previously. The Court agrees with Defendant's
characterization of its argument, and finds that
reconsideration is improper.
Moreover,
Defendant's argument does not show a palpable defect for
two reasons. First, Defendant primarily relies on unpublished
opinions to argue that the Court failed to comply with Sixth
Circuit precedent. ECF 34. 699-700. While unpublished
opinions are instructive, they are "of course, not
binding precedent." Crump v. Lafler,
657 F.3d 393, 405 (6th Cir. 2011).
Second,
Defendant asserts that the Court held that Defendant was
prohibited from considering past pay. That characterization
might be accurate if the Court had entered judgment for the
Plaintiff, but the Court merely denied Defendant's motion
in part because the argument about past pay was unpersuasive.
The ruling does not imply that Defendant could not consider
past pay. It simply means that the disparity in past pay,
when considered with all the other facts on the record, was
insufficient to prevent Plaintiff from making a prima facie
showing-especially given the low bar in the first step of the
McDonnell Douglas analysis. The Court's holding,
properly understood, neither ignores Defendant's single
cite to a published Sixth Circuit opinion nor reflects a
palpable defect.
II.
The Relative Supervisory Experience
Defendant
next argues that the Court did not consider that Harris and
Saif had worked in leadership positions while working for
Defendant. ECF 31, PgID 701-02. Defendant's brief fails
to specify which step in the Court's multifaceted
analysis it is challenging, so the Court presumes Defendant
is challenging either the Court's holding that (1)
Plaintiff made a prima facie showing that she was treated
less favorably than similarly situated male employees, or (2)
Plaintiff satisfied step three of the McDonnell
Douglas burden-shifting test by drawing into question
Defendant's justification.
But
Defendant's challenge fails to raise a new issue. To
describe its argument for reconsideration, Defendant cites
its original motion for summary judgment and its reply in
support. ECF 34, PgID 701. Both briefs were before the Court
prior to the denial of Defendant's original motion, and
were thus ...