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Bonner v. Bosal Industries - Georgia, Inc.

United States District Court, E.D. Michigan, Southern Division

November 2, 2017

CHERYL BONNER, Plaintiff,
v.
BOSAL INDUSTRIES - GEORGIA, INC., Defendant.

          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 ...


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