United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR
RECONSIDERATION  AND DISMISSING THE CASE
STEPHEN J. MURPHY, III United States District Judge
October 25, 2017, the Court granted in part and denied in
part Defendant's motion for summary judgment. ECF 26.
Only one claim remained: whether Defendant Oxford Bank
("the Bank") violated the ADEA by failing to
consider Plaintiff Debra Millen for the vacant Addison Branch
Manager position after eliminating her Goodrich Branch
Manager position. Id. at PgID 266-67. Defendant
Oxford Bank timely filed a motion for reconsideration on the
remaining claim. ECF 29. A response and hearing on the motion
are impermissible without a court order. E.D. Mich. LR
7.1(h)(2). For the reasons stated below, the Court will grant
Defendant's motion for reconsideration.
Court recited the relevant background in its previous order
and incorporates that recitation here. ECF 26, PgID
256-57.The Court reiterates only the following facts: Millen
served as the Goodrich Branch Manager for the Bank; Millen
went on FMLA leave in July 2015; the Bank eliminated the
Goodrich Branch Manager position as part of a strategic plan
in September 2015; and Millen received notice of the
termination of her position in October 2015. Id. at
prevail on a motion for reconsideration, the movant must
demonstrate (1) a palpable defect that misled the Court and
the parties and (2) that correction of the defect will result
in a different disposition of the case. E.D. Mich. LR
7.1(h)(3). A motion for reconsideration that merely presents
"the same issues ruled upon by the court, either
expressly or by reasonable implication" will not be
granted. Id. Only "obvious, clear,
unmistakable, manifest, or plain" errors qualify as
"palpable defects." Maiberger v. City of
Livonia, 724 F.Supp.2d 759, 780 (E.D. Mich. 2010)
(citation omitted). The Court will grant a motion for
reconsideration in exceptional circumstances upon
demonstration of "a significant error that changes the
outcome of a ruling on a motion[.]" Id.
Bank contends that the Court made a factual error that, if
corrected, would change the outcome of the Court's
previous ruling on the motion for summary judgment and avers
that, at the time the Bank eliminated Millen's position,
there were no available positions at the Bank for which she
was qualified. ECF 29, PgID 275. The Court previously found
that "[a]t the time the Bank eliminated Millen's
position, the [Addison] Branch Manager position was
available." ECF 26, PgID 264-65. The Court relied upon
and was misled by the deposition testimony of Nancy
Rosentrater, the Bank's Director of Retail Banking.
During her deposition, Rosentrater testified that during the
time period between May 2015 and October 2015, there was an
opening for the Addison Branch Manager position, ECF 20-1,
PgID 126-27, and that Millen was not considered for the
Court erred, however, because the Bank filled the Addison
Branch Manager prior to eliminating Millen's position.
The Addison Branch Manager position was filled on July 6,
2015 by Jennifer Sherby. ECF 23-1, PgID 253
("Kelly's Affidavit"). Rosentrater's deposition
demonstrates that there was an opening at the Addison branch
between May 2015 and October 2015 and Kelly's affidavit
confirms the existence of the opening. The Kelly affidavit
further clarifies that the Bank filled the opening in July
2015. There is no testimony on record to create any dispute
about that fact. The Addison Branch Manager position,
therefore, was unavailable in October 2015. And the
Court's error meets the standard of a palpable defect.
the error will result in a different outcome. In workforce
reduction cases, an employer that transfers younger employees
whose positions are eliminated, but fails to transfer an
older employee to an available position may be liable for age
discrimination. Ercegovich v. Goodyear Tire & Rubber
Co., 154 F.3d 344, 349-50 (6th Cir. 1998). But because
there were no available positions at the time of the
elimination of Millen's position here, she cannot make a
prima facie showing. And the Defendant's motion for
summary judgment should therefore have been granted in full.
it is hereby ORDERED that Defendant's
motion for reconsideration  is GRANTED.
Defendant's motion for summary judgment  is
GRANTED in full.
IS FURTHER ORDERED that the case is
DISMISSED WITH PREJUDICE.