Mulcahy v. Cook County Department of Corrections et al
Filing
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MEMORANDUM Opinion and Order: For the reasons set forth in this order, the Court grants in part and denies in part defendants' motion for reconsideration 110 . The motion is granted with respect to Count II, and the Court enters judgment in de fendants' favor on that count. The motion is denied with respect to Count III, which remains pending. Ruling on motion hearing set for 10/6/21 is converted to a status hearing on 10/6/21 at 9:15 a.m. Parties shall dial in using the Court's conference call-in number. The conference call-in number is 1-877-411-9748 and the passcode is 1814539. (For further details see order.) Signed by the Honorable M. David Weisman on 10/5/2021. Mailed notice. (pk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
COLLEEN MULCAHY,
Plaintiff,
v.
COOK COUNTY, COOK COUNTY
SHERIFF’S DEPARTMENT, COOK
COUNTY DEPARTMENT OF
CORRECTIONS,
Defendants.
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Case No. 17 C 8235
Magistrate Judge M. David Weisman
MEMORANDUM OPINION AND ORDER
On November 11, 2020, the Court issued a Memorandum Opinion and Order granting
defendants’ summary judgment motion on all issues except for plaintiff’s FMLA and retaliation
claims. (ECF 102.) Defendants have filed a motion to reconsider, arguing that the Court
misapprehended the law and/or failed to consider evidence relating to these claims. For the reasons
set forth below, the Court grants in part and denies in part the motion [110].
Legal Standard
A party may seek to reconsider the partial denial of summary judgment under Federal Rule
of Civil Procedure 54(b). See id. (“[A]ny order or other decision . . . that adjudicates fewer than
all the claims or the rights and liabilities of fewer than all the parties does not end the action as to
any of the claims or parties and may be revised at any time before the entry of a judgment
adjudicating all the claims and all the parties’ rights and liabilities.”); see also Galvan v. Norberg,
678 F.3d 581, 587 (7th Cir. 2012) (same). Thus, plaintiff’s argument as to timeliness of
defendant’s motion is without merit. (ECF 118, p. 3.)
A motion to reconsider an interlocutory order under Rule 54(b):
[M]ay be granted where the Court has obviously misunderstood a party, where the
Court’s decision rests on grounds outside the adversarial issues presented to the
Court by the parties, where the Court has made an error not of reasoning but of
apprehension, where there has been a controlling or significant change in the law
since the submission of the issue to the Court, or where there has been a controlling
or significant change in the facts of the case.
Caine v. Burge, 897 F. Supp. 2d 714, 716 (N.D. Ill. 2012). Motions for reconsideration are not an
opportunity for the movant “to take a second bite at the apple or raise new arguments that it did
not make in the first instance.” Goldman v. Gagnard, No. 11 C 8843, 2012 WL 2397053, at *3
(N.D. Ill. June 21, 2012) (quotation omitted). That is, “[i]t is well-settled that a motion to
reconsider is not a proper vehicle to advance arguments or legal theories that could and should
have been made before the Court entered its order or to present evidence that was available earlier.”
Caine, 897 F. Supp. 2d at 717.
Discussion
Defendants argue that the Court erred in finding plaintiff’s Count II claims, based on her
unpaid suspension days between December 2014 and May 2015, were timely. In the summary
judgment order, the Court agreed with plaintiff that the three unpaid days affected her
compensation and pension contributions “with every paycheck and pay period,” and thus the Lily
Ledbetter Fair Pay Act of 2009 rendered her claims timely. (See ECF 102 at 11-12); see also 42
U.S.C. § 2000e-5(e)(3)(A) (“[A]n unlawful employment practice occurs, with respect to
discrimination in compensation in violation of this subchapter, when a discriminatory
compensation decision or other practice is adopted, when an individual becomes subject to a
discriminatory compensation decision or other practice, or when an individual is affected by
application of a discriminatory compensation decision or other practice, including each time
wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision
or other practice.”). Defendants contend that the Court misapprehended the law, which deems the
unpaid suspension days to be discrete acts of discrimination and not discriminatory compensation
decisions within the meaning of the Equal Pay Act. Because those discrete acts occurred more
than 300 days before plaintiff filed her EEOC charge on December 2, 2016, defendants say this
claim is untimely.
Upon reconsideration, the Court agrees that plaintiff’s unpaid suspension days were
discrete acts of alleged discrimination and the subsequent monetary losses were not the result of
discriminatory compensation decisions. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
114 (2002) (“Discrete acts such as termination, failure to promote, denial of transfer, or refusal to
hire” are separate incidents of discrimination, and a party can only “file a charge to cover discrete
acts that ‘occurred’ within the appropriate time period.”); Delaware State Coll. v. Ricks, 449 U.S.
250, 258 (1980) (“‘The proper focus is upon the time of the discriminatory acts, not upon the time
at which the consequences of the acts became most painful.’” (quoting Abramson v. Univ. of
Hawaii, 594 F.3d 202, 209 (9th Cir. 1979)) (emphasis in original); Lohrasbi v. Bd. of Tr. of the
Univ. of Ill., 147 F. Supp. 3d 746, 755 (N.D. Ill. Nov. 29, 2015) (plaintiff’s denial of professor
emeritus status, while related to benefits and compensation, was a discrete act that did not restart
the 300-day time limit each day plaintiff was deprived of that status); Vogeler v. Conserv, FS, No.
10 C 50258, 2012 WL 357913, at *2 (N.D. Ill. Feb. 1, 2012) (“The Ledbetter Act is directed at
situations . . . where unequal pay for equal work is at issue.”) (citing Almond v. Unified Sch. Dist.
#501, 665 F.3d 1174, 1180-81 (10th Cir. 2011) (analyzing the legislative history and concluding
“discrimination in compensation” means only “unequal pay for equal work”))).
Plaintiff’s arguments are unavailing. First, plaintiff asserts that defendant did not raise the
legal argument that the Fair Pay Act only applies to unequal pay for equal work. (ECF 118 at 6.)
Yet, defendant did argue that plaintiff could not pursue claims for unpaid suspensions day because
plaintiff had failed to timely file a claim before the EEOC related to this conduct. (ECF 78 at 22
3) (arguing that plaintiff had failed to exhaust administrative remedies and thus is barred from
pursuing claims based on “discrete discriminatory act[s]” that occurred more than 300 days prior
to the EEOC charge). The Court relied on the Fair Pay Act in reaching its (erroneous) decision.
Thus, defendant had no reason to address the applicability of the Fair Pay Act, and more generally,
has not waived the timeliness argument. Second, plaintiff argues that the Fair Pay Act could apply
to an employer’s compensation decision as it might impact an employee’s pension rights. (ECF
118 at 6) (citing Tomlinson v. El Paso Corp., No. 04-cv-02686-WDM-MEH, 2009 WL 2766718
(D. Colo. 2009)). While the Ledbetter Act could be used in such a context, plaintiff cites to no
case that holds an allegedly illegal suspension from years past is constantly renewed under the Fair
Pay Act because each and every paycheck that follows would be impacted by the allegedly illegal
suspension. Accordingly, the Court grants defendants’ motion for reconsideration as to Count II.
As to the retaliation claim in Count III, the Court held that there was sufficient
circumstantial evidence—plaintiff’s assignment of overtime (“OT”) before she requested an
accommodation, suspicious timing between plaintiff’s request for an accommodation and the
denial of overtime (“OT”), and the reinstatement of her OT only after Employee Services spoke
to plaintiff’s supervisors about it—to suggest there was a causal relationship between the two.
(ECF 102 at 22-23); see Rowlands v. United Parcel Serv. - Fort Wayne, 901 F.3d 792, 801 (7th
Cir. 2018) (“[T]he legal standard under which we must analyze [plaintiff’s] claim is simply
whether the evidence would permit a reasonable factfinder to conclude that [her] request[] for
accommodation[] caused the [denial of OT].”) (quotation omitted). Defendants contend that in
making that finding, the Court disregarded: (1) the undisputed fact that it was the shift
commanders, not plaintiff’s direct supervisors, who determined whether plaintiff was offered OT
(see ECF 80 ¶ 20 (plaintiff admitting that fact); (2) plaintiff’s failure to identify the shift
commander(s) who denied her OT; and (3) plaintiff’s failure to offer evidence that the relevant
shift commander(s) knew she had sought an accommodation before they refused to give her OT.
(See generally ECF 80 (Pl.’s LR 56.1(b)(3) Stmt. Additional Facts).)
The Court disagrees. As the Court noted in the summary judgment order, suspicious timing
alone is generally not sufficient to create an inference of retaliation. (ECF 102 at 22-23.) Here,
however, in addition to suspicious timing, there is evidence that defendants assigned plaintiff OT
before she requested an accommodation and did not do so after her request until Employee
Services spoke to her supervisors. That evidence supports the inference that the shift commanders
knew, via plaintiff’s supervisors, about plaintiff’s accommodation request, and the inference that
the accommodation request animated the decision maker(s) to deny plaintiff overtime
opportunities.
Alternatively, defendants argue that they presented undisputed facts sufficient to show that
the denial of overtime was due to nondiscriminatory reasons, including that: (1) plaintiff’s
restrictions limited her to performing only forty-five positions; (2) plaintiff was barred from
working OT from June 19, 2016 to September 17, 2016 because of unauthorized absences; (3) the
selection of an employee to work OT was influenced by a number of factors, like seniority; and
(4) plaintiff only signed up for OT four times during the eleven-month period when she says she
was denied OT. However, defendants did not include the first fact in their summary judgment
argument, and thus cannot raise it now. Further, the second and fourth facts are disputed. (See
ECF 80, Pl.’s Resp. Defs.’ Stmt. Undisputed Facts ¶¶ 68-69.) That leaves only the third fact,
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which alone, is insufficient to establish that defendants’ OT decisions were lawfully motivated and
not discriminatory.
Conclusion
For the reasons set forth above, the Court grants in part and denies in part defendants’
motion for reconsideration [110]. The motion is granted with respect to Count II, and the Court
enters judgment in defendants’ favor on that count. The motion is denied with respect to Count
III, which remains pending.
SO ORDERED.
ENTERED: October 5, 2021
M. David Weisman
United States Magistrate Judge
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