Kalus v. EMTEC, Inc. et al

Filing 164

MEMORANDUM Opinion and Order Signed by the Honorable Amy J. St. Eve on 5/18/2015:Mailed notice(kef, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KELLY KALUS,
Plaintiff,
v.
EMTEC, INC., and RICHARD REID,
Defendants.

)
)
)
)
)
)
)
)
)

Case No. 13 C 2503

MEMORANDUM, OPINION, AND ORDER
On March 23, 2015, the Court granted Defendants’ motion for summary judgment,
denied Plaintiff’s motion for partial summary judgment, and dismissed this lawsuit in its entirety.
The Court presumes familiarity with its March 23, 2015, Memorandum, Opinion, and Order.
Before the Court is Plaintiff’s motion to reconsider brought pursuant to Rule 59(e). For the
following reasons, the Court, in its discretion, denies Plaintiff’s motion.
LEGAL STANDARD
Rule 59(e) permits parties to file, within twenty-eight days of the entry of judgment, a
motion to alter or amend the judgment. See Fed.R.Civ.P. 59(e); see also Banks v. Chicago Bd. of
Educ., 750 F.3d 663, 666 (7th Cir. 2014) (twenty-eight day time limit “unyielding” and cannot
be extended). A “Rule 59 motion is not a forum to relitigate losing arguments; it may be granted
only if the movant can ‘demonstrate a manifest error of law or fact or present newly discovered
evidence.’” NLRB v. Latino Exp., Inc., 776 F.3d 469, 478 (7th Cir. 2015) (citation omitted).
Moreover, Rule 59(e) “does not provide a vehicle for a party to undo its own procedural
failures” or “introduce new or advance arguments that could and should have been presented to
the district court prior to the judgment.” Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 954

(7th Cir. 2013) (citations omitted). Under Rule 59(e), the movant must “clearly establish”
grounds for relief. See id. at 953; Miller v. Safeco Ins. Co. of Am., 683 F.3d 805, 813 (7th Cir.
2012). District courts have broad discretion in determining Rule 59(e) motions. See Miller, 683
F.3d at 813.
“When a motion is filed more than 28 days after the entry of judgment, whether the
movant calls it a Rule 59(e) motion or a Rule 60(b) motion, [courts] treat it as a Rule 60(b)
motion.” Banks, 750 F.3d at 666. “Rule 60(b) relief is an extraordinary remedy and is granted
only in exceptional circumstances.” Kathrein v. City of Evanston, Ill., 752 F.3d 680, 690 (7th
Cir. 2014) (citation omitted). Rule 60(b) authorizes federal courts to relieve a party from a final
judgment for a number of reasons, including mistake, inadvertence, surprise, or excusable
neglect; newly discovered evidence; or any other reason justifying relief. See Anderson v.
Catholic Bishop of Chicago, 759 F.3d 645, 653 (7th Cir. 2014); Shuffle Tech Int’l, LLC v. Wolff
Gaming, Inc., 757 F.3d 708, 709 (7th Cir. 2014). A “party invoking Rule 60(b) must claim
grounds for relief ‘that could not have been used to obtain a reversal by means of a direct
appeal,’” therefore, “errors of law and fact generally do not warrant relief under Rule 60(b)(1).”
Banks, 750 F.3d at 667 (citation omitted). District courts have broad discretion in ruling on Rule
60(b) motions. See Nash v. Hepp, 740 F.3d 1075, 1078 (7th Cir. 2014); Johnson v. General Bd.
of Pension & Health Benefits, 733 F.3d 722, 733 (7th Cir. 2013).
PROCEDURAL BACKGROUND
On June 17, 2013, Plaintiff Kelly Kalus filed a four-count First Amended Complaint
against her former employer Defendant Emtec, Inc. and Defendant Richard Reid, Kalus’ former
direct supervisor, alleging gender discrimination and a hostile work environment claim in

2

violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq.
(Count I), violations of the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. §
2601, et seq. (Count II), a violation of the Americans with Disabilities Act of 1990 (“ADA”), 42
U.S.C. § 12101, et seq. (Count III), and sex and handicap discrimination claims in violation of
the Illinois Human Rights Act (“IHRA”), 765 ILCS 5/1-101, et seq. (Count IV).1
On October 10, 2014, Defendants filed a summary judgment motion as to all of
Plaintiff’s claims, after which Plaintiff filed a motion for partial summary judgment as to her
FMLA claim. As discussed in the Court’s detailed March 23, 2015, Memorandum, Opinion, and
Order, Plaintiff’s Northern District of Illinois Local Rule 56.1 statements and responses were
riddled with legal arguments, speculation, and extraneous information. See Cady v. Sheahan,
467 F.3d 1057, 1060 (7th Cir. 2006) (“statement of material facts did [ ] not comply with Rule
56.1 as it failed to adequately cite the record and was filled with irrelevant information, legal
arguments, and conjecture”). Moreover, many of Plaintiff’s Rule 56.1(b)(3)(A) responses to
Defendants’ statement of facts failed to cite to any evidence in the record to refute Defendants’
statements. See Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009) (“When a
responding party’s statement fails to dispute the facts set forth in the moving party’s statement in
the manner dictated by the rule, those facts are deemed admitted for purposes of the motion.”).
Furthermore, Plaintiff relied on her declaration to support her facts, although some of the
statements in her declaration contradicted her prior deposition testimony. See Pourghoraishi v.

1

Because courts analyze claims brought pursuant to the IHRA under the same legal
standards for actions brought under Title VII and other federal anti-discrimination statutes, the
Court did not address Plaintiff’s IHRA claims separately. See Teruggi v. CIT Group/Capital
Fin., Inc., 709 F.3d 654, 659 (7th Cir. 2013); Zaderaka v. Illinois Human Rights Comm’n, 131
Ill.2d 172, 178, 137 Ill.Dec. 31, 545 N.E.2d 684 (Ill. 1989).
3

Flying J, Inc., 449 F.3d 751, 759 (7th Cir. 2006) (party cannot “create an issue of material fact
by submitting an affidavit that contradicts an earlier deposition.”).
In the Court’s March 23, 2015, Memorandum, Opinion, and Order, the Court rejected
Plaintiff’s hostile work environment claim based on her gender because Plaintiff failed to present
evidence raising a material fact for trial that her work environment was objectively offensive and
that her gender was the cause of any alleged harassment. See Orton-Bell v. Indiana, 759 F.3d
768, 773 (7th Cir. 2014). Also, the Court rejected Plaintiff’s claim that Defendants
constructively discharged her because she did not set forth evidence showing a genuine dispute
as to the material fact that her termination was immediate or imminent. See Chapin v. Fort-Rohr
Motors, Inc., 621 F.3d 673, 679-80 (7th Cir. 2010). Finally, the Court concluded that Plaintiff
had waived her retaliation claims brought under Title VII and the ADA, and that Plaintiff had
failed to raise a genuine issue of material fact that Defendants took a materially adverse action
against her as to her FMLA retaliation claim. See Carter v. Chicago State Univ., 778 F.3d 651,
657 (7th Cir. 2015).
FACTUAL BACKGROUND
I.

Emtec’s Oracle Practice Groups
Defendant Emtec, located in New Jersey with offices in Chicago, is an information-

technology consulting company that specializes in packaged applications, cloud applications,
application development, management consulting, and infrastructure services. In July 2011,
Plaintiff began her employment with Emtec’s predecessor, Emerging Solutions, as a National
Practice Director, Oracle Human Capital Management (“HCM”) practice. As the National
Practice Director of the Oracle HCM practice, Plaintiff managed the HCM consultants,

4

marketing, staffing, recruiting, and business development. Defendant Richard Reid, the Oracle
National Practice Managing Director, offered Plaintiff the job and was Plaintiff’s direct
supervisor throughout the relevant time period. Shortly after Plaintiff began her employment,
Emtec acquired Emerging Solutions in August 2011. After the acquisition, Plaintiff continued in
her role as the National Practice Director managing Emtec’s Oracle HCM practice.
Plaintiff’s peers in the Oracle group, who also reported to Reid, included John Given, the
National Practice Director for Oracle Financial, and Todd Siler, the National Practice Director
for Oracle Technical. Specifically, Given managed the Oracle financial products, whereas
Plaintiff oversaw the Oracle HCM products. As the Technical Lead, Siler supported both
Plaintiff and Given by providing technical staff on projects. Plaintiff, Given, and Siler each led a
team of consultants in their respective practice areas and supervised one or more practice
managers, who in turn supervised a number of front-line consultants.
Approximately eight months after Plaintiff started in her position as National Practice
Director of Emtec’s Oracle HCM practice, specifically, on February 17, 2012, Reid told the three
Oracle National Practice Directors–Plaintiff, Given, and Siler–that Emtec planned to expand its
Oracle practice to work with Oracle’s new “Fusion” software. At or around that time, Reid
decided to incorporate Oracle Fusion into the existing Oracle practice groups led by Plaintiff,
Given, and Siler, which increased their job responsibilities. Thereafter, Plaintiff went to
Oracle’s headquarters in California for training in March and April 2012. At some point in May
2012, however, Reid decided to make structural changes to the Oracle group by separating
Fusion from the existing practice groups. In July 2012, Reid hired Steven Bentz as the Oracle
Fusion Practice Lead tasking Bentz to “grow” this new practice.

5

II.

Plaintiff’s Medical Leave
On May 9, 2012, Plaintiff notified Emtec that she needed to take time off from work

pursuant to the FMLA, as well as through short-term disability. On May 12, 2012, Plaintiff,
however, told Emtec’s Head of Compensation and Benefits, Anita Dombrowski, that she would
be using paid time off to address her condition and that she would not take FMLA leave at that
time. In early June 2012, Plaintiff notified Emtec that she was scheduled for surgery on July 23,
2012, and that she would need to take FMLA leave for up to eight weeks after the surgery.
Prior to her scheduled surgery, Plaintiff and Reid met on June 12, 2012, to discuss her
pending project lists and address who would cover her projects during her FMLA leave. On
June 14, 2012, Plaintiff and Reid exchanged a series of emails regarding whether Plaintiff should
step down as the National Practice Director of the Oracle HCM practice. After their email
exchange, Plaintiff decided to continue in her role as the National Practice Director of the Oracle
HCM practice.
Also on June 14, 2012, Plaintiff notified Reid that she needed to take off work earlier
than expected and effective immediately. In response, Dombrowski sent Plaintiff a letter
approving the requested leave of absence effective immediately and placed Kalus on an unpaid
leave of absence starting on June 14, 2012, ending when her FMLA leave commenced for her
scheduled surgery on or about July 23, 2012. Also in June 2012, Plaintiff anticipated that she
would return to work sometime in September 2012.
On August 3, 2012, Plaintiff sent Dombrowski an email stating that she would not be
able to work part-time as she had hoped, but instead that she would return to Emtec on or about
September 17, 2012, as planned. After Dombrowski emailed Plaintiff on September 7, 2012, to

6

“touch base” about her return to work, Plaintiff notified Dombrowski that she would not be
returning to work on September 17, 2012, but that she would get back to Dombrowski before the
end of her FMLA leave period about her return date. Instead of returning to work, on September
17, 2012, Plaintiff’s counsel–the same attorney who represents Plaintiff in this lawsuit–emailed
Emtec a letter stating that Plaintiff would not be returning to work because she was
“constructively discharged.” The September 17, 2012, letter also demanded a settlement amount
of approximately $3 million dollars for Plaintiff’s employment-related claims. While she was on
FMLA leave, Plaintiff had secured a new job and started her new job one or two days after
September 17, 2012. After Plaintiff left her employment at Emtec, Reid offered Kalus’ position,
namely, National Practice Director of the Oracle HCM Practice, to Jaynie Cosenza, who
accepted the offer.
ANALYSIS
In the reply brief, Plaintiff’s counsel admits that he filed Plaintiff’s Rule 59(e) motion
one day late, but explains that it was by accident. Counsel requests that the Court apply the
“excusable neglect” standard to extend the time for filing the present motion despite unequivocal
Seventh Circuit case law that holds district courts cannot extend the time limit imposed by Rule
59(e). See Banks, 759 F.3d at 666; Justice v. Town of Cicero, Ill., 682 F.3d 662, 664 (7th Cir.
2012); Blue v. Int’l Bhd. of Elec. Workers Local Union 159, 676 F.3d 579, 582 (7th Cir. 2012);
Wells v. Ryker, 591 F.3d 562, 564 (7th Cir. 2010). In forming this conclusion, the Seventh
Circuit relies on Federal Rule of Civil Procedure 6(b)(2), which sets forth when a district court
cannot extend time clearly delineating that district courts cannot extend time for Rule 59(e)
motions. See Wells, 591 F.3d at 564 (“an extension of a motion under Fed.R.Civ.P. 59(e) is

7

forbidden by Fed.R.Civ.P. 6(b)(2).”). Although the Court cannot extend the deadline, the Court
will consider Plaintiff’s Rule 59(e) arguments in the context of Rule 60(b), as Plaintiff suggests
in her reply brief. Specifically, in her opening brief, Plaintiff argues that the Court made
manifest errors of fact in granting Defendants’ summary judgment motion, and in her reply brief,
Plaintiff argues that these errors of fact fit under Rule 60(b)(1), namely, that the Court made
mistakes in relation to the facts and circumstances of the case. See Eskridge v. Cook County,
577 F.3d 806, 809 (7th Cir. 2009).
Plaintiff’s theory of the case is that Reid wanted to get rid of her and her theory of
liability was that his conduct was based on her gender and her need to take FMLA leave.2
Although Plaintiff also argued that Defendants discriminated against her based on the ADA, at
summary judgment, Plaintiff made no attempt to establish that she is a qualified individual with
a disability within the meaning of the ADA. See Kauffman v. Petersen Health Care VII, LLC,
769 F.3d 958, 964 (7th Cir. 2014). Because Plaintiff resigned, to fulfill the adverse employment
action requirement, she argued that Defendants constructively discharged her. Her other theory
of liability was that Defendants’ conduct created a hostile work environment based on her
gender.
At summary judgment, Plaintiff argued that she told Reid that she needed to take FMLA
leave on May 9, 2012, and that Reid was irritated with her because of this request. Thereafter,
Plaintiff argues that Reid set out to find her replacement, as evidenced by Emtec’s recruiting

2

Plaintiff never presented evidence that Defendants interfered with her rights under the
FMLA by depriving her of any FMLA entitlement, such as denying her FMLA request or failing
to assist her in taking FMLA-related leave. See Taylor-Novotny v. Health Alliance Medical
Plans, Inc., 772 F.3d 478, 498 (7th Cir. 2014); Ridings v. Riverside Med. Ctr., 537 F.3d 755, 761
(7th Cir. 2008).
8

firm posting a job position for an HCM National Practice Director on May 31, 2012. Plaintiff
further maintains that the restructuring of the Oracle Group was a “sham plan,” and that
Defendants created the new position that Bentz filled to avoid the appearance of violating
Plaintiff’s federally protected right to FMLA leave and Title VII. Plaintiff surmises that Reid
did not decide to hire someone for the Oracle Fusion position until June 14, 2012, and that other
evidence in the record points to the fact that the Oracle Group reorganization was a sham.
The Court now turns to Plaintiff’s factual arguments in her motion to reconsider–keeping
in mind that a manifest error of fact “is not demonstrated by the disappointment of the losing
party.” Oto v. Metropolitan Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000). Plaintiff first
asserts that it “appears” that the Court relied on Reid’s “self-serving” declaration for the
proposition that he decided to make structural changes to the Oracle Group sometime in May
2012. Plaintiff’s argument regarding Reid’s self-serving declaration is misplaced because most
declarations and “affidavits are self-serving, as is most testimony, and this does not permit a
district judge to denigrate a [party’s] evidence when deciding whether a material dispute requires
trial.” Wilson v. McRae’s, Inc., 413 F.3d 692, 694 (7th Cir. 2005); see also Widmar v. Sun
Chemical Corp., 772 F.3d 457, 459-60 (7th Cir. 2014) (“Self-serving affidavits can indeed be a
legitimate method of introducing facts on summary judgment”). As discussed in the Court’s
earlier ruling, the problem with self-serving affidavits occurs when a party tries to “create an
issue of material fact by submitting an affidavit that contradicts an earlier deposition,” see
Pourghoraishi, 449 F.3d at 759, as Plaintiff attempted at summary judgment.
Next, Plaintiff takes issue with the factual premise that Reid decided to make the
structural changes to the Oracle Group sometime in May 2012. The facts in the record show that

9

Emtec– through its recruiting firm–began recruiting for the new Oracle Fusion position, as
opposed to Plaintiff’s position which encompassed Oracle’s PeopleSoft software, on May 31,
2012. (See R. 82, Pl.’s Stmt. Facts ¶ W.2.) This fact leads to the reasonable inference that Reid
had made the decision to make Oracle structural changes before the hiring process began at the
end of May 2012. (See R. 82, Pl.’s Stmt. Facts ¶ W.2.) Plaintiff’s arguments that there was no
official, separate Fusion practice until October 2012, that Bentz’s time and expenses were
charged to the regular HCM practice until September 2012, and that an accounting officer did
not know where to “put” Bentz from a financial reporting system in August 2012, do not belie
the fact that Reid made the decision to make a structural change to the Oracle Group in May
2012. (Id. ¶¶ Y.1, Y.2, Y.3.) That being said, Plaintiff’s argument that the Court made a crucial
mistake by stating that Reid decided to restructure the Oracle Group in May 2012 because Reid
decided to “get rid of Plaintiff before he made the ‘structure change’” does not change the
Court’s conclusion. To clarify, even assuming that Reid made the restructuring decision on June
14, 2012, as Plaintiff suggests, Plaintiff failed to present evidence establishing a material issue of
fact that Reid’s attempt to “get rid of her” was based on her request to take FMLA leave or her
gender. See, e.g., Dass v. Chicago Bd. of Educ., 675 F.3d 1060, 1072 (7th Cir. 2012); see also
Benuzzi v. Board of Educ. of City of Chicago, 647 F.3d 652, 664 (7th Cir. 2011) (“Without some
semblance of a link between her gender and the adverse employment actions she experienced,
[plaintiff’s] discrimination claim is destined to fail.”).
Plaintiff also asserts that the Court did not mention all of the facts she presented in her
summary judgment filings. At summary judgment, however, the facts at issue must be material
and not based on speculation. See Widmar, 772 F.3d at 460. Also, as discussed, Plaintiff’s Rule

10

56.1 Statements of Fact were woefully inadequate, and in ruling on summary judgment, the
Court literally scoured the record, instead of granting Defendants’ request to strike Plaintiff’s
Rule 56.1 Statements of Fact, even though it is not the district court’s responsibility to piece
together a party’s evidence. See Diadenko v. Folino, 741 F.3d 751, 757 (7th Cir. 2013).
Nonetheless, the Court did not consider Plaintiff’s unsupported facts or facts that Defendants’
properly refuted in their Rule 56.1 responses.
Turning to the facts Plaintiff highlights as missing, Plaintiff points to the fact that Reid
told Emtec’s Vice President of Human Capital, Deborah Branden, that Bentz had Oracle Fusion
experience when in fact he did not. Plaintiff maintains that this misstatement supports her theory
that Reid’s reorganization of the Oracle Group was a sham. At summary judgment, Defendants
properly disputed this fact in their Rule 56.1 Response. When construing the facts in favor of
the non-movant at summary judgment, courts cannot ignore Federal Rule of Civil Procedure
56(e) and use unsupported facts in the non-movant’s favor. See Porter v. City of Chicago, 700
F.3d 944, 956 (7th Cir. 2012). In addition, construing the facts and making reasonable
inferences in favor of a non-movant does not require the Court to accept that party’s “conclusion
on what a piece of evidence indicates.” See Fleishman v. Continental Cas. Co., 698 F.3d 598,
603 n.1 (7th Cir. 2012). In other words, courts do not adopt a party’s conclusion on what
constitutes a reasonable inference, but instead, independently review the evidence in making any
reasonable inferences. See id.; see also Miller v. Gonzalez, 761 F.3d 822, 827 (7th Cir. 2014) (a
party’s “speculation, hunches and intuition cannot defeat summary judgment”).
In addition, Plaintiff contends that the Court erred by not mentioning that at her June 12,
2012, meeting with Reid, he discussed the possibility of bringing in a female consultant from

11

Northern California to assist her in getting Oracle Fusion up and running during Plaintiff’s leave.
At his deposition, Reid testified that he had talked to this consultant, but that nothing
materialized. Plaintiff counters with this consultant’s affidavit stating that Reid did not approach
the consultant about helping out, although she had met with him on a previous occasion. As
such, Plaintiff argues that Reid’s deposition testimony was false, (see Pl.’s Stmt. Facts ¶ P.1.),
and that this false statement supports her argument that Reid’s restructuring of the Oracle Group
was merely a sham to cover-up Reid’s violation of the FMLA and Title VII. Plaintiff’s argument
asks the Court to make speculative, inferential leaps to conclude that the Oracle Group
reorganization was an entire sham, especially in light of the fact that Plaintiff failed to present a
convincing mosaic of evidence from which a reasonable jury could find that Defendants
discriminated against her based on her gender or FMLA request. As such, this argument is
without merit.
As to her constructive discharge arguments, Plaintiff points to other evidence that the
Court did not discuss in the summary judgment order, such as emails, notes, and
communications that occurred prior to her September 17, 2012, resignation, of which she was
not aware until the parties conducted discovery in this lawsuit. Because Plaintiff was unaware of
these communications before she resigned, they do not shed any light on whether Emtec acted
“in a manner so as to have communicated to a reasonable employee that she will be terminated.”
Chapin, 621 F.3d at 679 (citation omitted). Put differently, these communications do not
establish or support that Emtec’s conduct communicated to Plaintiff that Emtec would
imminently terminate her because the emails were not communicated to her before her

12

September 2012 resignation. See Jones v. National Council of YMCA, 48 F.Supp.3d 1054, 111718 (N.D. Ill. 2014).
That being said, the Court turns to Plaintiff’s arguments about a June 11, 2012, email
from Plaintiff’s co-worker Siler to Reid, in which Siler states in relevant part:
There is no reason to move forward with a resource if a decision has been made to
change course. If we are starting the interview process we should not put Kelly
out front any longer as the face of our HCM practice. I know you really, really,
really want to have a replacement identified prior but there are a number of
initiatives that we should just not proceed with her in the lead.... [N]ext Friday,
June 22, we should move forward without Kelly as our HCM practice lead.
(Pl.’s Stmt. Facts ¶ O.) Reid responded the next day by stating “Let’s discuss in person.” (Id.)
Without giving any further context, Plaintiff characterizes this email as a conversation between
Reid and Siler discussing Plaintiff’s demotion, discharge, or inducing Plaintiff to quit.
Assuming that Plaintiff’s argument is based on a reasonable inference, Plaintiff was unaware of
this email until after she resigned from her employment, therefore, it does not support her
constructive discharge claim.
In the context of Plaintiff’s overall theory of the case, although this email may speak to
Reid wanting to get rid of her, Plaintiff never connected Reid’s desire to demote or fire her with
her request for FMLA leave or her gender. See Beamon v. Marshall & Ilsley Trust Co., 411 F.3d
854, 863 (7th Cir. 2005) (“not every perceived unfairness in the workplace may be ascribed to
discriminatory motivation merely because the complaining employee belongs” to a protected
class); see also Bennington v. Caterpillar Inc., 275 F.3d 654, 660 (7th Cir. 2001) (plaintiff must
connect conditions of employment to defendant’s unlawful bias). Plaintiff argues that Reid was
irritated that she was taking FMLA leave, but the record is devoid of any such evidence. In an
attempt to show Reid based the allegedly unlawful employment decisions on Plaintiff’s FMLA
13

leave request, Plaintiff argues that Reid “has a habit and pattern of not dealing well with
subordinates who become ill.” Plaintiff bases this argument on an unsupported allegation that
Reid refused to authorize paid time off for a Emtec employee on maternity leave. Plaintiff also
points to the fact that Emtec eventually terminated Bentz’s employment and that Reid knew
Bentz had a heart condition. It should go without saying that Plaintiff cannot establish a material
fact for trial by misstating the evidentiary record. Cf. Wiesmueller v. Kosobucki, 547 F.3d 740,
741 (7th Cir. 2008). Moreover, counsel’s arguments are simply not evidence. See United States
v. Thomas, 763 F.3d 689, 694 (7th Cir. 2014).
The remainder of Plaintiff’s arguments in her opening brief rehash arguments that she
made–and the Court rejected–at summary judgment, including Plaintiff’s arguments based on a
conversation that Reid and Dombrowski had on September 7, 2012, in anticipation of Kalus
returning to work from her FMLA leave, in which they discussed how to welcome Kalus back to
work. See Vesely v. Armslist LLC, 762 F.3d 661, 666 (7th Cir. 2014) (“Rule 59(e) motion is not
to be used to ‘rehash’ previously rejected arguments”). Another rehashed argument concerns a
telephone conversation that Dobrowski and Branden had with an employment lawyer on June
14, 2012, that the Court discussed in detail in the summary judgment ruling. Last, Plaintiff
makes a handful of additional factual arguments for the first time in her reply brief, which are
waived. See Darif v. Holder, 739 F.3d 329, 337 (7th Cir. 2014).
“Rule 60(b) relief is an extraordinary remedy and is granted only in exceptional
circumstances.” Kathrein, 752 F.3d at 690 (citation omitted). Plaintiff has not shown that any
such exceptional circumstances exist nor has she “clearly established” that the Court made a
manifest error of fact under the lower Rule 59(e) standard. See Cincinnati Life, 722 F.3d at 953.

14

Accordingly, the Court, in its discretion, denies Plaintiff’s motion to reconsider. See Machinery
& Fabrication, Inc. v. Traditional Baking, Inc., 570 F.3d 845, 848 (7th Cir. 2009) (“The district
court has great latitude in making a Rule 60(b) decision because that decision is discretion piled
on discretion.”) (internal quotation marks omitted); see also Cash v. Illinois Div. of Mental
Health, 209 F.3d 695, 698 (7th Cir. 2000) (plaintiff’s arguments “that the court wrongly
excluded evidence, misinterpreted the evidence that was presented, and did not understand his
theory of the case–cannot be shoe-horned into grounds for Rule 60(b) relief.”).
CONCLUSION
For these reasons, the Court, in its discretion, denies Plaintiff’s motion to reconsider.
Dated: May 18, 2015
ENTERED

______________________________
AMY J. ST. EVE
United States District Court Judge

15