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Suitor v. Charter Communications, LLC

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

June 21, 2018




         On 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.


         Suitor's 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.


         Plaintiffs 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).


         In his 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.” Id.

         It is 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 action.”).

         To 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.

         Nevertheless, 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 discrimination.” Id.

         Suitor 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 reason.

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 ...

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