United States District Court, E.D. Michigan, Northern Division
ORDER DENYING MOTION FOR RECONSIDERATION
L. LUDINGTON UNITED STATES DISTRICT JUDGE
April 11, 2017, Plaintiff Ronald Suitor filed a complaint
against Defendant Charter Communications, LLC. ECF No. 1.
Suitor alleges that Charter fired him in retaliation for
taking medical leave, thus violating the Family and Medical
Leave Act, 29 U.S.C. § 2615. On January 9, 2018, Charter
filed a motion for summary judgment. That motion was granted
on May 2, 2018. ECF No. 20. Suitor has now filed a motion for
reconsideration wherein he argues that Charter's apparent
pattern of interfering with Suitor's ability to take FMLA
leave creates an issue of fact regarding whether Charter
retaliated against Suitor for taking FMLA. ECF No.
22. At the Court's direction, Charter filed a response to
the motion. For the following reasons, the motion for
reconsideration will be denied.
motion for reconsideration challenges the Court's
analysis of the evidence, not its summary of the evidence.
For that reason, the factual synopsis provided in the May 2,
2018, opinion and order will be adopted in full. To briefly
summarize, Suitor worked as a direct sales representative for
Charter for several years. Early in his time with Charter,
Suitor was investigated for violating Charter's ethics
policies. The investigation found that Suitor allowed another
sales representative to log into Charter's software with
Suitor's information and log a sale. In early 2016,
Suitor took FMLA leave to care for his wife and his father.
Upon his return (and, indeed, through large portions of his
time with Charter), Suitor received a warning for failure to
meet his sales quotas. In July 2016, Charter initiated
another ethics investigation after a customer reported that
Suitor had signed them up for services under a fake name. The
investigation revealed several instances of Suitor signing up
customers under incorrect names. Charter concluded that the
pattern was indicative of fraudulent intent by Suitor and
terminated his employment.
have filed a motion for reconsideration. Pursuant to Eastern
District of Michigan Local Rule 7.1(h), a party can file a
motion for reconsideration of a previous order, but must do
so within fourteen days. A motion for reconsideration will be
granted if the moving party shows: “(1) a palpable
defect, (2) the defect misled the court and the parties, and
(3) that correcting the defect will result in a different
disposition of the case.” Michigan Dept. of
Treasury v. Michalec, 181 F.Supp.2d 731, 733-34 (E.D.
Mich. 2002) (quoting E.D. Mich. LR 7.1(g)(3)). A
“palpable defect” is “obvious, clear,
unmistakable, manifest, or plain.” Id. at 734
(citing Marketing Displays, Inc. v. Traffix Devices,
Inc., 971 F.Supp.2d 262, 278 (E.D. Mich. 1997).
“[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). See also
Bowens v. Terris, No. 2:15-CV-10203, 2015 WL 3441531, at
*1 (E.D. Mich. May 28, 2015).
motion for reconsideration, Suitor argues that the Court
“committed a palpable defect by solely analyzing the
evidence under the first method of establishing that the
employer's proferred reason for the adverse action was a
pretext for retaliation.” Mot. Recon. at 1, ECF No. 22.
Suitor argues that the Court should also have considered
whether “Defendant's serial violations of
Plaintiff's FMLA rights and the financial incentive for
Plaintiff's supervisors to violate his rights also raised
a question regarding Defendant's motivation.”
true that, in analyzing whether an employer's motive for
terminating an employee was pretextual, one potential
question is whether the employer's proffered,
nondiscriminatory reason actually motivated the termination.
See Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th
Cir. 2009) (A “plaintiff can show pretext in three
interrelated ways: (1) that the proffered reasons had no
basis in fact, (2) that the proffered reasons did not
actually motivate the employer's action, or (3) that they
were insufficient to motivate the employer's
establish pretext under this second prong, “the
plaintiff admits the factual basis underlying the discharge
and acknowledges that such conduct could motivate the
dismissal, but attacks the employer's explanation
‘by showing circumstances which tend to prove an
illegal motivation was more likely than that offered by the
defendant.'” Smith v. Leggett Wire Co.,
220 F.3d 752, 759 (6th Cir. 2000) (quoting Manzer v.
Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1084 (6th
Cir. 1994)). Indeed, to argue pretext under the second
method, the plaintiff must admit the factual basis underlying
the proffered reason for termination. See Chattman v.
Toho Tenax Am., Inc., 686 F.3d 339, 349 (6th Cir. 2012).
At summary judgment, Suitor did not admit the factual basis.
alternative, inconsistent arguments are sometimes tolerated
as necessary legal fictions. To demonstrate a material issue
of fact under the second pretext prong, “the plaintiff
argues that the sheer weight of the circumstantial evidence
of discrimination makes it “‘more likely than
not' that the employer's explanation is a pretext, or
coverup.” Manzer v. Diamond Shamrock Chemicals
Co., 29 F.3d 1078, 1084 (6th Cir. 1994). To prevail, the
plaintiff “may not rely simply upon his prima facie
evidence but must, instead, introduce additional evidence of
attempts to meet his burden under the pretext prong by
returning, once again, to the evidence in the record which
might have supported an interference claim. See Mot.
Recon. At 6-8. As an initial matter, Suitor's argument
presumes that “pretext can be shown not only by proof
that the employer's stated reason was not the honest
reason for his action but also by proof that the stated
reason was ‘insufficient to motivate' the
action.” Forrester v. Rauland-Borg Corp., 453
F.3d 416, 417 (7th Cir. 2006) (squarely rejecting this
“persistent dictum” as adding “nothing to
the analysis of pretext but confusion”). As the Seventh
Circuit explained in Forrestor, that apparent
distinction is impenetrable.
If the stated reason for the challenged action did not
motivate the action, then it was indeed pretextual. If it was
insufficient to motivate the action, either this
means that it didn't motivate it, or that it
shouldn't have motivated it. If the first is the intended
sense, the dictum is just a murky way of saying that the
stated reason was not the real reason. If the second sense is
the one intended, then the dictum is wrong because the
question is never whether the employer was mistaken, cruel,
unethical, out of his head, or downright irrational in taking
the action for the stated reason, but simply whether the
stated reason was his reason: not a good reason, but the true
Id. at 417-18 (emphasis in original). See also
Chen v. Dow Chem. Co., 580 F.3d 394, 400 n.4 (6th Cir.
2009) (describing the criticism in Forrestor as
“potent” and confirming that “it is
important to avoid formalism in [the three part test's]
application, lest one lose the forest for the trees. Pretext
is a commonsense ...