United States District Court, E.D. Michigan, Southern Division
DESHEILA C. HOWLETT, Plaintiff,
CITY OF WARREN; LT. LAWRENCE GARNER; SHAWN JOHNSON; and ANWAR KHAN, Defendants.
ORDER DENYING DEFENDANTS' MOTION FOR
Terrence G. Berg United States District Judge.
have moved for reconsideration (ECF No. 100) of the
Court's September 16, 2019 order granting in part and
denying in part Defendants' motion for summary judgment,
denying Plaintiff's motion for partial summary judgment,
and dismissing certain individual defendants (ECF No. 98).
Because Defendants have failed to identify a palpable defect
in the Court's September 16, 2019 order, the motion for
reconsideration (ECF No. 100) will be
Court may grant a motion for reconsideration if the movant
satisfactorily shows that: (1) a palpable defect misled the
parties and the Court; and (2) correcting the defect would
result in a different disposition of the case. E.D. Mich.
L.R. 7.1(h)(3). A defect is palpable if it is “obvious,
clear, unmistakable, manifest, or plain.” Olson v.
Home Depot, 321 F.Supp.2d 872, 874 (E.D. Mich. 2004).
The Court will not grant a motion for reconsideration
“that merely present[s] the same issues ruled upon by
the court, either expressly or by reasonable
implication.” Id. Additionally, “a
motion for reconsideration is not properly used as a vehicle
to re-hash old arguments or to advance positions that could
have been argued earlier but were not.” Smith v. ex
rel. Smith v. Mount Pleasant Pub. Sch., 298 F.Supp.2d
636, 637 (E.D. Mich. 2003).
motion for reconsideration raises two arguments. First,
Defendants argue the Court committed palpable error when it
did not address Faragher v. City of Boca Raton, 524
U.S. 775 (1998) and Burlington Industries, Inc. v.
Ellerth, 524 U.S. 742 (1998) when analyzing
Plaintiff's Title VII claims. Defendants assert these
cases provide them with the affirmative defense that the City
of Warren lacked notice of any actionable hostile work
environment created by a supervisor. In Faragher and
Ellerth, the Court held that an employer may raise
an affirmative defense to liability or damages when an
employee does not show that an adverse tangible employment
action was taken against her. 524 U.S. at 764-65. To avail
itself of this affirmative defense, an employer must prove by
a preponderance of the evidence two elements: first, that it
“exercised reasonable care to prevent and correct
promptly any sexually harassing behavior, ” and second,
“that the plaintiff employee unreasonably failed to
take advantage of any preventative or corrective
opportunities provided by the employer to avoid harm
otherwise.” 524 U.S. at 764-65.
Court notes at the outset that Defendants failed to mention
these cases or expressly assert this defense in their motion
for summary judgment, though Ellerth was cited once
in Defendants' reply. To the extent Defendants raised
this affirmative defense in their amended answers, they did
not raise it in their motion for summary judgment or argue
that they met these elements. And a passing reference to
these cases during oral argument may not be considered as a
valid way to establish these elements. Defendants' motion
thus “attempts to offer new arguments, and cites to
additional authority not contained in its prior briefs, [and]
such arguments are not properly presented on a motion for
reconsideration. A motion for reconsideration is not an
appropriate vehicle for raising new . . . arguments that were
not included in the original motion.” Lucido v.
Mueller, 2009 WL 4800558, at *1 (E.D. Mich. Dec. 9,
2009) (citing Sault Ste. Marie Tribe of Chippewa Indians
v. Engler, 146 F.3d 357, 374 (6th Cir. 1998) (holding
that a party is not permitted to raise new legal arguments on
a motion for reconsideration that could have been raised
even if Defendants had fully developed this argument, it
would have failed. This defense applies where a plaintiff is
harassed by supervisors, but in this case Howlett complains
of being harassed by co- workers. See ECF No. 70,
PageID.6923-24; Ellerth, 524 U.S. at 765 (explaining
the affirmative defense may be invoked where the plaintiff
alleges a hostile work environment created by a
supervisor); Starnes v. JLQ Auto. Servs.,
Co., 442 F.Supp.2d 416, 422-23 (E.D. Mich. 2006)
(explaining the difference between allegations of harassment
by co-workers and allegations of harassment by supervisors).
And based on this record which was extensively summarized by
the Court in its prior order (ECF No. 98), reasonable jurors
could find that the City “knew, or should have
known” about Howlett's harassment, and that the
City's response to that harassment was unreasonable, as
required to impart employer liability for the actions of
co-workers. See Hawkins v. Anheuser-Busch, Inc., 517
F.3d 321, 338-39, 344 (6th Cir. 2008).
even assuming for the sake of argument that Plaintiff's
response included a complaint of harassment by supervisors,
at the summary judgment phase, where this Court must read all
facts and inferences in the light most favorable to Howlett,
the question would be whether, on this record, a reasonable
jury could conclude that her supervisors' decision to
relocate Howlett to the same office space as Detective
Johnson against her explicit wishes, following the formal
complaint and before Johnson received any diversity training,
constituted an adverse employment action. Based on this
record, reasonable jurors could so find; and if they did,
such an affirmative defense would not be available. See
Ellerth, 524 U.S. at 765 (“No affirmative defense
is available, however, when the supervisor's harassment
culminates in a tangible employment action, such as
discharge, demotion, or undesirable
Defendants argue that Howlett failed to make the requisite
showing that her alleged discrimination was severe and
pervasive enough to sufficiently affect her conditions of
employment. This amounts to a restatement of the arguments
made in Defendants' written briefs. It is akin to seeking
reconsideration merely because the Court failed to accept the
Defendants' view of the case. The Court has already
carefully explained its reasons for concluding that the City
was not entitled to summary judgment on Plaintiff's Title
VII claims. Because Defendants identify no palpable defect in
the Court's order, the motion for reconsideration (ECF
No. 100) is not well taken and must be denied.
it is hereby ORDERED that Defendants'
motion for ...