Sanchez Jr. v. City of Pembroke Pines, Florida

Filing 93

ORDER granting 74 Motion for Reconsideration. Signed by Judge Beth Bloom on 11/20/2017. (men)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 16-cv-62958-BLOOM/Valle
JIMMY R. SANCHEZ, JR.,
Plaintiff,
v.
CITY OF PEMBROKE PINES, FLORIDA,
Defendant.
____________________________________/
ORDER GRANTING MOTION
FOR RECONSIDERATION
THIS CAUSE is before the Court upon Plaintiff’s Motion for Reconsideration, ECF No.
[74] (“the Motion”). In its Motion, Plaintiff argues that genuine issues of material fact regarding
the clarity of the City’s rehiring procedures preclude summary judgment as to Plaintiff’s failure
to rehire claims under the FMLA and ADA. See ECF No. [74] at 2. In opposition, the City
argues that the authority cited by Plaintiff is distinguishable from the undisputed facts presented
by the parties on summary judgment. See ECF No. [88] at 4–7. The Court has carefully
reviewed the Motion, all opposing and supporting materials, the record in this case and the
applicable law, and is otherwise fully advised. For the reasons set forth below, the Motion is
granted.
A motion for reconsideration requests the Court to grant “an extraordinary remedy to be
employed sparingly.” Burger King Corp. v. Ashland Equities, Inc., 181 F. Supp. 2d 1366, 1370
(S.D. Fla. 2002). A party may not use a motion for reconsideration to “relitigate old matters,
raise argument or present evidence that could have been raised prior to the entry of judgment.”
Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 957 (11th Cir. 2009) (quoting Michael Linet,

Case No. 16-cv-62958-BLOOM/Valle
Inc. v. Village of Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005)). “This prohibition
includes new arguments that were ‘previously available, but not pressed.’ ” Id. (quoting Stone v.
Wall, 135 F.3d 1438, 1442 (11th Cir. 1998) (per curiam) (motion to alter judgment properly
denied where plaintiffs waited until after case was dismissed to raise argument that Virginia law
applied, rather than Florida law).
Within this framework, however, a court may grant reconsideration when there is (1) an
intervening change in controlling law, (2) the availability of new evidence, and (3) the need to
correct clear error or prevent manifest injustice. See Hood v. Perdue, 300 Fed. App’x. 699, 700
(11th Cir. 2008). Thus, a motion to reconsider is “appropriate where, for example, the Court has
patently misunderstood a party, or has made a decision outside the adversarial issues presented to
the Court by the parties, or has made an error not of reasoning but of apprehension.” Kapila v.
Grant Thornton, LLP, No. 14-61194-CIV, 2017 WL 3638199, at *1 (S.D. Fla. Aug. 23, 2017)
(quoting Z.K. Marine Inc. v. M/V Archigetis, 808 F. Supp. 1561, 1563 (S.D. Fla. 1992) (internal
quotation marks omitted).
On reconsideration, Plaintiff argues that the Court improperly credited Defendant’s
assertion that the City maintained a formal and clear process through which Plaintiff could have
sought rehire over Plaintiff’s assertion that he was given insufficient information regarding the
rehiring process. ECF No. [74] at 5–6. In support of this argument, Plaintiff brings to the
Court’s attention—for the first time—several Eleventh Circuit opinions which control the
sufficiency of a failure to rehire claim where the employee never applied for the position in
question. Id. at 2. These cases outline two exceptions to the general rule that to survive
summary judgment, a plaintiff must demonstrate that he or she applied for the position that is the
subject of the failure to rehire claim: the “informal processes” exception and the “futile gesture”
exception. See Williams v. VWR Int’l, LLC, 685 F. App’x 885, 888 (11th Cir. 2017). Plaintiff
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Case No. 16-cv-62958-BLOOM/Valle
argues that both exceptions apply to the facts here and that the Court should reverse its grant of
summary judgment as to the rehire claims.
The Eleventh Circuit has held that a hiring process advertising available positions only by
“word of mouth” falls into the “informal process” exception, while jobs posted on a third party
website but not an intra-company website in violation of company policy, do not fall into that
exception. Cf. Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 1133 (11th Cir. 1984)
(noting that open positions were advertised based on “word of mouth”) and Cox v. Am. Cast Iron
Pipe Co., 784 F.2d 1546, 1560 (11th Cir. 1986) (“The record indicates that the defendant did use
informal application procedures.”) with Williams v. VWR Int'l, LLC, 685 F. App'x 885, 888 (11th
Cir. 2017) (finding Plaintiff did not fall into the “informal process” and the “futile gesture”
exceptions). Here, the parties disagree about what steps Plaintiff was required to take to be
rehired. ECF No. [72] at 14–16. For example, Chief Picarello testified at his deposition as
follows:
Q: Okay. So just, I guess to get an understanding, if Jimmy
Sanchez was to have been rehired, he would have had to do all the
same exact training, same exact testing as a brand new recruit?
A: Yes.
Q: Okay. And would that be even though the fact that he was
being rehired was due to a provision under the Collective
Bargaining Agreement?
A: Yes.
…
Q: Okay. Now, my question to you now is, did this department
have any type of protocols to be able to deal with a situation that
specifically fell for this clause?
A: No.

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Case No. 16-cv-62958-BLOOM/Valle
ECF No. [51-2] at 6. Chief Hernandez also testified:
Q: [W]hat did he have to do in order to be able to just be given his
job back or given a similar position, was there something else that
he had to do?
A: At minimum, I mean, we – the last time we dealt with
somebody trying to come back was, I don't know, over 20 years
ago. So I would have imagined that, you know, a medical, you
know, background check, some type of physical exam.
ECF No. [51-4] at 6. This testimony at a minimum presents a question of fact as to whether the
City maintained a formal process by which Plaintiff—or any other firefighter—could be rehired.
Taking the facts in the light most favorable to Plaintiff, including Plaintiff’s testimony that the
City failed to explain to him any process by which to seek rehire, a genuine issue of material fact
precludes summary judgment under Carmichael and its progeny.
As to the second exception, Plaintiff argues in a footnote that genuine issues of material
fact exist on a “futile gesture” theory. A non-applicant may establish a prima facie case for
failure to rehire by showing the potential employee “refrained from applying due to a justifiable
belief that the employer’s discriminatory practices made application a futile gesture.” E.E.O.C. v.
Joe's Stone Crabs, Inc., 296 F.3d 1265, 1274 (11th Cir. 2002) (citations omitted). “To have a
‘justifiable belief’ for purposes of this exception to the application requirement, a person must
demonstrate: (1) that she had a real and present interest in the job for which the employer was
seeking applications; and (2) that she would have applied for the job but effectively was deterred
from doing so by the employer’s discriminatory practices.” Id. Taking the evidence in the light
most favorable to Plaintiff, the parties agree that Plaintiff expressed interest in rehire, and
Plaintiff expressed at his deposition that after his conversations with the City, he believed that
the City “didn’t want me to come back to work ‘cause of my FMLA leave and my time

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Case No. 16-cv-62958-BLOOM/Valle
used . . . .” See ECF No. [51-1] at 177–81. This is sufficient to create a genuine issue of
material fact to preclude summary judgment.
While the Court recognizes that it is inappropriate to assert “new arguments that were
previously available, but not pressed” on reconsideration, in order to prevent manifest injustice
given the clear authority from the Eleventh Circuit which recognizes two exceptions for a failure
to rehire claim asserted by a non-applicant, it is ORDERED AND ADJUDGED that Plaintiff’s
Motion for Reconsideration is GRANTED.
DONE AND ORDERED in Chambers at Miami, Florida, this 20th day of November,
2017.

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record

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